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    STATE of Missouri, Respondent, v. Charles Lee CRAWFORD, Appellant.
    No. 52049.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied July 10, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, J. Brendan Ryan, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    J. W. Grossenheider, Lebanon, for appellant.
   HENLEY, Judge.

By amended information alleging prior felony convictions defendant was charged with murder, first degree, of Edward L. Pridemore on February 2, 1965, in Laclede county, Missouri. Section 559.010 (all statutory references are to RSMo 1959 and V.A.M.S.) Defendant admitted, and the court found, that he had been convicted of prior felonies, sentenced and imprisoned therefor as alleged. A jury found him guilty as charged. The court assessed his punishment and sentenced him to imprisonment for life. Sections 556.280 and 559.030. He was represented at the trial, and during pre-trial and post-trial proceedings, by counsel appointed by the trial court; he is represented in this court by the same counsel who has filed a printed brief and presented oral argument in defendant’s behalf. Counsel’s devotion to the interest of his client and his zeal in the maintenance and defense of his rights exemplifies the highest calling of his profession.

The dead body of Pridemore was found in a ditch alongside a gravel road approximately two hundred yards north of U.S. Highway 66 in Laclede county at about six o’clock a. m., on February 2, 1965. Defendant was arrested in Texarkana, Texas, early in the evening of February 3, on other charges, and gave oral and written statements to an Agent of the Federal Bureau of Investigation in which he confessed to the murder of Pridemore. He was returned to Laclede county on February 4, and on that date gave oral and written statements to the prosecuting attorney in which he again confessed to the murder of Pride-more. On February 5, defendant waived his preliminary examination in Magistrate court and was bound over to Circuit court. On Monday, February 8, an information was filed which did not allege the prior felony convictions. At defendant’s request he was not brought before the court for the appointment of counsel until the following Friday, February 12. On that date, it appearing that defendant could not employ counsel, the Honorable J. W. Grossenheider of Lebanon was appointed to represent him. On March 30, 1965, defendant appeared with counsel and entered two pleas: (1) not guilty, and (2) not guilty by reason of mental disease or defect excluding responsibility; the case was set for trial for June 23, 1965. On April 1, pursuant to motion of defendant, the court appointed three named physicians to examine and report upon the mental condition of defendant at the time of the alleged criminal conduct. Section 552.030. The report of this examination was filed May 6. On May 8 defense counsel made an oral motion to dismiss the charges and urged the court to order defendant delivered to police authorities of Indianapolis, Indiana, where he was wanted on two other similar charges; the motion was overruled on the same day. Further details pertaining to the motion will be referred to later in connection with the first point briefed. On the same day, pursuant to another oral motion, the court appointed Dr. Frederick W. Coons, a physician of defendant’s choice, to examine and report upon his mental condition at the time of the alleged crime. Thereafter defendant filed two motions to suppress evidence. The first, filed May 20, to suppress all oral and written statements made by him from the moment of his arrest, was on federal constitutional grounds that he was denied counsel during extensive interrogations in Texas and Laclede county. The second, filed June 3, to suppress all evidence of articles taken from his person and from his automobile in Texarkana on February 3, was on the grounds that his arrest was without a warrant or probable cause and, hence, the search of his person and automobile and the seizure of articles therefrom were in violation of his state and federal constitutional rights. The motions were consolidated, heard, and overruled on June 12. Evidence heard on the motions will be referred to later in connection with points II, III and IV of defendant’s brief.

The points briefed by defendant relate to alleged errors in overruling his oral and written motions; the admission of evidence; failure to prove corpus delicti and venue; in giving and refusing instructions; in limiting inquiries of defendant on voir dire examination; and, in permitting an ineligible person to serve on the jury. Defendant does not question the sufficiency of the evidence to sustain conviction, except that evidence pertaining to proof of the corpus delicti and proper venue; therefore, a brief summary will suffice.

Defendant, age 26, left his home in Indianapolis, Indiana, on or about February 1, 1965, in a 1962 model Pontiac en route to the southwest part of the country; sometime during the night of the 1st or early morning of the 2nd, on the outskirts of St. Louis, he picked up a hitchhiker, Edward L. Pridemore, a recently discharged soldier. Pridemore put his Air Force baggage in the back seat and got in the passenger’s seat in the front. They drove southwest on U.S. Highway 66 for approximately two hours and stopped to eat at a roadside cafe. Leaving the cafe they continued their journey with defendant driving and Pridemore in the front passenger’s seat. Pridemore leaned against the door and soon went to sleep. Defendant saw him asleep and decided to kill and rob him. While driving, defendant pulled a .22 caliber pistol from his belt, pointed it at Pridemore’s head and fired six shots, four of which struck Pridemore in the face, head and neck and left hand, and two struck and broke out the rear glass of the automobile. Blood spurted and ran all over the automobile. Defendant drove on, “not more than a mile,” and turned right off Highway 66 onto a gravel road to rob and dispose of the body. He drove north on this road two or three hundred yards. Turning around, he drove a short distance south, pulled over close to the road ditch on his right and stopped. He got out of the car, walked around its rear and pulled Pride-more out the right front door and into the ditch. Pridemore was still alive at that time; defendant could hear him breathe, “ * * * or what I called a ‘death rattle.”” He took Pridemore’s billfold from his pocket and drove on, stopping to eat at The Cowboy Inn, a cafe and gasoline service station on Highway 66 in Lawrence county (approximately 80 miles southwest of Lac-lede county). He left the cafe and drove to Tulsa, Oklahoma, where he checked in at a hotel and slept. From Tulsa he drove to Texarkana, arriving there late in the afternoon or early evening. He parked his automobile on Texas avenue, not far from the police station, and walked a short distance to a theater where he saw a movie. Leaving the theater, he started walking through an alley toward his automobile. He was arrested in the alley behind the police station by Texarkana police officers.

The body of Pridemore was found by Mrs. Margaret Wills, who was en route home after taking her husband to Conway. She and a neighbor called the Sheriff’s office. The Sheriff and Frank O’Dell, a member of the Missouri Highway Patrol, arrived at the scene within a few minutes after the telephone call. Trooper O’Dell testified that it was a very cold February morning; that Pridemore’s body was lying face down in the ditch on the west side of a gravel road north of the Conway Truck Stop on U.S. Highway 66 in Laclede county; that blood was on the clothing, and on the face and hands of the body, and on the ground under the face; that blood on the clothing had begun to dry, but it was still wet under the face and running from the nose; that he found several distinctive footprints in the ditch around and near the body; that these footprints were made by heavy rubber-soled shoes, the soles of which had a design of bars running crossways and lengthways; that he had seen the shoes worn by defendant at the time of his arrest in Texarkana and the soles are of the same type and have the same markings as those which made the footprints at the scene; that he had a close look at the body after it was cleaned; that the bullets entered the left side of the head and neck; that the wounds were made by .22 caliber bullets. James Coomer and Norma Meyers, employees of The Cowboy Inn in Lawrence county, testified that they recognized defendant as being the man who ate alone in the cafe near 6:30 a. m on February 2, 1965, and inquired about the Oklahoma turnpike. To the extent necessary, further evidence will be referred to in connection with discussion of the legal questions involved.

Defendant’s first point is that the court erred in overruling his pre-trial oral motion of May 8 to dismiss the charge and order defendant delivered to Indiana authorities. As grounds for the motion defendant’s counsel stated that defendant could not have a fair and impartial trial in Laclede county on June 23, because of widespread publicity given the case through newspapers, radio and television. In support of his motion he introduced in evidence three front-page newspaper articles, two from the Lebanon Daily Record and one from The Lebanon Rustic Republican. We have read the articles; each refers to the simple fact (among others) that defendant had pleaded not guilty by reason of insanity, had been examined to determine his mental condition, and declared sane; all three are brief, conservative, objective reports, without bold, glaring headlines and are m.ore or less buried on the front page as compared with other news articles. Neither would be likely to stir passions or prejudice; at least, the trial judge apparently so found, and he was in a much better position to determine this than are we from the cold record. Defendant offered no proof on his allegations of adverse, prejudicial radio and television coverage. He did not move for a continuance. Nor did he apply for a change of venue to another county where the alleged prejudice would not exist. Both avenues were available to him, but for reasons of his own he confined himself to a request that the charge be dismissed. He stated no legal grounds for dismissal and the court properly overruled his motion. State ex rel. Dowd v. Nangle, 365 Mo. 134, 276 S.W.2d 135, 137-138 [2, 3]; State ex rel. Griffin v. Smith, 363 Mo. 1235, 258 S.W.2d 590, 593 [6, 7]. Also see: State v. Golden, 353 Mo. 585, 183 S.W.2d 109; State v. Spica, Mo., 389 S.W.2d 35; State v. Amerison, Mo., 399 S.W.2d 53. Decisions of the United States Supreme Court cited by defendant are not applicable.

Defendant’s next point- is that the court erred in overruling his motion to suppress all evidence of oral and written statements made by him and in admitting those statements in evidence, on the ground that he was denied counsel in violation of rights guaranteed by the Sixth Amendment to the Constitution of the United States. In support of his point he cites five decisions of the United States Supreme Court, and a paper entitled: The Meaning and Scope of Escobedo v. State of Illinois, appearing in 38 F.R.D. 441.

The case was tried after Esco-bedo and before Miranda. Defendant acknowledges that Miranda is not applicable, because held not retroactive in Johnson. But, he says, this record brings the instant case squarely within the rule and principles announced in Escobedo. We do not agree. Here, there was no investigation of this murder which had begun to focus on defendant as the suspect when he was arrested in Texas, the police did not carry out a process of interrogations lending itself to eliciting incriminating statements either at the time of his arrest or after he was taken into police custody, the defendant had not requested nor been denied an opportunity to consult with a lawyer, and he was advised of his absolute constitutional right to remain silent. We said in State v. Collins, Mo., 394 S.W.2d 368, 371 [1] that “We will not expand the Escobedo ruling beyond the facts of that case * * the facts of Escobedo are not present in this case.

Evidence heard on the motions to suppress showed that defendant was arrested in Texas for violation of the laws of Tex-arkana while suspected of theft of an automobile. He was placed in an upstairs cell of the Texarkana jail and within an hour or so sent word to the police that he wanted to make a statement. As a result of his request, Agent Sam Cotton of the F.B.I. was called in and talked to defendant. Before his conversation with defendant, Cotton identified himself as an F.B.I. agent and showed defendant his credentials; he informed defendant that he did not have to make a statement, that any statement he made could be used against him in court, that he had a right to see a lawyer before he made a statement, and that if he did not have the means to employ a lawyer one would be appointed for him by a court official or judge. Defendant stated that he understood this, and at no time did he indicate a desire for counsel; nor did he at any time indicate a desire to remain silent. So far as Agent Cotton knew he was taking a statement from a man who was under suspicion for car theft only. Defendant admitted taking the car and driving it across state lines; and, when asked if he would explain the bloodstains in the car, he freely and voluntarily informed the Agent that he had murdered a man in Missouri. This was the first knowledge Cotton or any of the Texas officials had of Pridemore’s murder. The statement defendant gave to the Prosecuting Attorney of Laclede county upon their return to Lebanon the day after •defendant’s arrest, was made after that official had likewise advised defendant fully •of his constitutional rights. Defendant •testified at the hearing on the motions to suppress. He stated that he had been in trouble with the law before and knew his rights, without explanation. On cross-examination, he stated that no threats of force or promises of leniency were made by the Texas officers to secure his statement, that “ * * * they were real nice * * that the Prosecuting Attorney of Laclede county advised him of his constitutional rights before he gave statements to that official, and that no threats of force or promises of leniency were made to him in consideration of his statements.

The court did not err in overruling his motion to suppress oral and written statements made to the Texas and Laclede county authorities or in admitting those statements in evidence.

Defendant’s third point is that the court erred in overruling his motion to suppress all evidence of items taken from his person at the time of arrest and all evidence found in the automobile, because he was arrested and his person and automobile searched, and the evidence seized, without a warrant and without probable cause in violation of rights guaranteed him by the statutes and Constitution of Missouri and the Fourth Amendment to the Constitution of the United States.

Briefly, the evidence pertinent to this point is that before his arrest in Texarkana one of the local police officers had observed a Pontiac parked alone after dark near the police station and suspected that it was a stolen automobile. It was a late model car, the rear glass was broken out, and it bore an Indiana dealer’s license, wired on. While standing outside the car the officers, with the use of a flashlight, could and did see blood all over the inside and on items of clothing and baggage in the back seat, as well as on the outside of the right front door. Keeping the car under surveillance, the officers later drove into the alley behind the police station as defendant walked through the alley in the direction of the parked car. Defendant was wearing clothing normally worn by persons from the climate locale of the state license plate borne by the car. Defendant hesitated when he saw the police car. Driving up alongside defendant, one of the officers got out and asked him who he was and for identification. Defendant handed the officer an Illinois driver’s license and the officer asked him if that was his Pontiac around the corner with the Indiana license; defendant said: “It is not.” The officer obviously did not believe that answer, for, as he returned the driver’s license to defendant, he asked: “You mean to tell me that’s not your car?” To this, defendant replied, “Yes, it is my car.” His suspicions being further aroused by these inconsistent answers, the officer told defendant he was under arrest, and, searching him for weapons, found a .22 caliber pistol in his belt. A few minutes later in the police station, while emptying his pockets of personal belongings onto a desk, defendant told the officers that the Pontiac had been stolen. Thereafter, the car was moved onto the police parking lot behind the station, and all items of personalty removed and brought into the police station where they were tagged for identification. Articles mentioned as having been taken from the car were defendant’s coat and Pridemore’s baggage. Among the items found in this baggage was another .22 caliber pistol, loose cartridges of that caliber, and a long white-handled knife.

Under these circumstances the police officers had reasonable cause to believe that the Pontiac was a stolen automobile, and that defendant had stolen and had driven it across state lines; therefore, his arrest without a warrant was lawful, and the subsequent search and seizure incident to the arrest did not violate constitutional guaranties against unreasonable search and seizure. State v. Cantrell, Mo., 310 S.W.2d 866, 868-870 [1-7]; State v. Phelps, Mo., 384 S.W.2d 616, 619 [2-5], Moreover, the articles taken from the automobile were seized after defendant had informed the police that the automobile had been stolen. The constitutional guaranties against unreasonable search and seizure afford defendant no protection, because admittedly he was neither the owner nor entitled to the possession of the automobile. State v. Green, Mo., 292 S.W.2d 283, 286 [1-7]; State v. Cantrell, supra, 310 S.W.2d 1. c. 870 [8-9]; State v. Watson, Mo., 386 S.W.2d 24, 28 [2].

Defendant’s next point is that the court erred in admitting in evidence all oral and written statements made by him, because, under the evidence, he did not have sufficient mental responsibility intelligently to waive counsel at any time after his arrest. Defendant asserts that the medical testimony indicated a marked lack of ability on his part to exercise judgment or make decisions and that “ * * * this mental defect would most certainly preclude him from being able to intelligently waive counsel * * Defendant does not refer us to the pages of the transcript where specific medical testimony appears which he says would support the conclusions of this point, so we assume that he refers to the medical testimony as a whole. The jury found that at the time of the alleged offense,he. was not suffering from a mental disease or defect excluding responsibility; this issue and the questions raised by this point are so closely related in nature, and in point of time, that we may not say that the jury did not determine indirectly the question of fact on which the point is partly based. In determining the admissibility of defendants’ statements to the officers in Texarkana and Laclede county the trial judge necessarily considered and determined whether he had the mental capacity to waive counsel when the statements were made. The trial judge had a second opportunity to consider and weigh the questions raised by this point when the motion for new trial was presented. He was in a far better position than we to make this determination and we cannot say that his ruling was clearly erroneous.

In point V defendant claims error in overruling his motion to exclude from evidence the written statements of defendant made in Texarkana on February 3, and in Laclede county on February 4, for the reason those statements contained evidence of an independent crime. The independent crime he has reference to is the theft of the Pontiac in Indianapolis and driving it across state lines. The record refutes defendant’s contention. The two statements were read to the jury by counsel for the state; such parts of the statements as referred to the described independent crime were not read. Nor does the record show that the statements were read by the jury.

A closely related point to defendant’s point V is his contention that the court erred also in refusing to discharge the jury when a state’s witness testified that defendant told him the Pontiac “ * * * was a stolen car.” Defendant asserts as reason for this contention that this testimony “ * * * brought before the jury evidence of an independent crime * * *,” and was therefore inadmissible. The record shows that when arrested in Texarkana, defendant first denied that the Pontiac was his and then immediately said it was. A few minutes later, while being booked in the police station, he was asked “ * * * who the car belonged to * * *,” and he said: “* * * You will find out anyhow the car was stolen * * State’s witness Gary Collvins testified, in part, as follows : “Q. Did you question him about that car? A. I did. Q. What did he say? A. He said that it was a stolen car.” Defendant objected to this answer and moved that the jury be discharged. The court sustained the objection and instructed the jury to disregard the answer, but overruled the motion to discharge.

The trial court is vested with a broad discretion in determining whether a mistrial should be declared because of alleged prejudicial testimony, and we reverse for error in such instances only where we can find that the court has abused its discretion. State v. Adamson, Mo., 346 S.W.2d 85, 88 [5] and cases there cited. The trial judge sustained the objection and instructed the jury to disregard the answer. He was in a better position than we are to determine whether this testimony was so prejudicial as to require a mistrial; he was in a better position to determine what action on his part would be adequate. He determined then, and again on motion for new trial, that his instruction to the jury to disregard the witness’ answer was sufficient. We cannot find that the court abused its discretion in refusing to discharge the jury.

In his point VI defendant contends that the court erred in admitting in evidence state’s exhibit number 3, a color photograph of the upper portion of the chest and arms and the neck, face and head of the dead body of Pridemore, showing bullet wounds and blood. He contends this exhibit aroused the passion, prejudice and bias of the jury against him and prevented the jury from coolly deliberating the question of his guilt or innocence.

“The rule as to the admissibility of this sort of visual evidence is well settled. Demonstrative evidence of this character is admissible if it tends to connect the accused with the crime, or to prove the identity of the deceased, or show the nature of the wound, or throw any relevant light upon a material matter at issue.” State v. Moore, Mo., 303 S.W.2d 60, 65 [1]; State v. Long, 336 Mo. 630, 80 S.W.2d 154, 160 [9].

The photograph is 3¡/2 X 5 inches in size showing those portions of Pride-more’s body above described after it had been cleaned of blood except that around the site of wounds, which probably could not be eliminated completely; there is nothing gory or gruesome about it and we see nothing in the photograph which would tend to arouse the passion or prejudice of a jury. It was used during the testimony of Dr. Thomas T. Tombridge, pathologist, to demonstrate the location of the wounds and the pattern of strikes from a weapon held in close range of the head. By tattoo marks on the left arm, and by the ring on the left hand bearing Pridemore’s first initial, it helped to corroborate other identification of the deceased. Its admission and use in evidence is largely within the discretion of the trial judge. He did not abuse his discretion in admitting the exhibit.

In point VIII of his brief defendant contends that the court erred in permitting Dr. E. C. Kepler to testify concerning his examination of defendant for the reasons (1) that the examination of defendant, as ordered by the court pursuant to § 552.030, was not conducted to determine whether at the time of the alleged crime as a result of mental disease or defect defendant did not know or appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of law; and (2) that the report of the examination was made public after it was filed, contrary to § 552.020 (2).

The only ground stated at the trial for defendant’s objection to Dr. Kepler’s testimony was that stated as reason (1) in his above point; he did not object for the reason that the report of the examination had been made public contrary to the statute. The latter reason not having been presented to the trial court at the time of the objection, we will not consider it in reviewing this assignment of error. State v. Brown, Mo., 360 S.W.2d 618, 621 [8],

Defendant asserts that the type of examination made by Dr. Kepler was that provided for in § 552.020, that is, an examination to determine whether defendant lacked the capacity to understand the proceedings against him or to assist in his defense; that the doctor did not make an examination to determine whether at the time of the alleged offense defendant had a mental disease or defect excluding responsibility for his conduct, as ordered by the court; therefore, the doctor should not have been permitted to testify concerning his examination. We have read the doctor’s report of examination filed with the circuit clerk and we have read the doctor’s testimony. The report and the testimony show conclusively that the examination was all inclusive, that is, its extent was such that the doctor could, and did, determine both (1) whether defendant had the capacity to understand the proceedings and assist in his defense, and (2) whether defendant at the time of the alleged offense had a mental disease or defect excluding responsibility for his conduct. The statement in the written report that the examination was made pursuant to § 552.020 is not controlling and counsel in effect conceded at the trial that this designation of § 552.020 may have been a typographical error. The trial court did not err in admitting the testimony of Dr. Kepler.

In his next point defendant contends that the court erred in overruling his motion for judgment of acquittal, because the state failed to prove (1) the corpus delicti independent of defendant’s statements, and (2) that the offense charged was committed in Laclede county. The recent death of Pridemore by several gunshot wounds in the head and neck, either one of which would have produced death, the finding of his body in a ditch with closeby footprints identified as having been made by shoes worn by defendant is sufficient proof of the two elements constituting the corpus delicti. However, both the circumstances related above and the confessions of defendant may be considered in determining whether the corpus delicti is sufficiently proved. Those circumstances correspond with circumstances related in the confessions. State v. McQuinn, Mo., 235 S.W.2d 396, 397 [1] and cases there cited.

Defendant was traveling southwest on Highway 66; one of his statements discloses that he drove about a mile farther after shooting Pridemore and turned north on a gravel road where he disposed of the body. Trooper O’Dell testified that the eastern boundary of Laclede county was about twenty-five miles east of the point where Pridemore’s body was found. This evidence is sufficient to show that the shooting occurred and that the offense was committed in Laclede county.

His next point is that the court erred in giving instruction No. 8, because it failed to tell the jury that they should not consider any statements made by him if these statements were (1) made as a product of his mental disease, or, (2) made after suspicion had focused on him and before he had counsel, or, (3) made while he did not have mental capacity and judgment intelligently to waive counsel.

The fact that any statements made were “made after suspicion had focused on him and before he had counsel” would not alone preclude the jury from considering the statements. The question is whether, during that time, any statements made were made voluntarily, or, more accurately, because the mental test is involved, whether at that time he knew or understood what he was saying and doing. The law does not permit the jury to exclude from consideration any statements made merely because they were made after suspicion of crime has focused on the person making the statement; to permit the jury to exclude such statements would permit the exclusion of voluntary statements.

It is not required that the jury be told specifically that they shall not consider statements made while he was suffering from a mental disease or while he did not have mental capacity intelligently to waive counsel; it is sufficient to inform the jury that they may consider statements made if they find that at the time they were made they were made voluntarily and, where the mental test is involved, that defendant understood what he was saying and doing. This instruction required the jury to find voluntariness and “ * * * that at the time defendant understood what he was saying and doing * * * ” before they could consider the statements; the instruction meets the only tests required and the court did not err in giving it. See: State v. Stibbens, 188 Mo. 387, 87 S.W. 460, 462-63.

In another point defendant contends that the court erred in refusing to give his instruction “B” on circumstantial evidence, because much of the evidence against him was circumstantial. In effect defendant concedes in the words of this point that not all of the evidence against him was circumstantial. It is not mandatory that a circumstantial evidence instruction be given where part of the evidence is direct. Defendant’s confessions were direct evidence of his guilt; therefore, the court was not required to give instruction “B.” State v. Spica, Mo., 389 S.W.2d 35, 52 [26-28]; State v. Smith, Mo., 377 S.W.2d 241, 244 [4, 5].

Defendant’s next point is that the court erred in refusing to permit him to inquire during voir dire examination whether any member of the panel had any feelings, beliefs or impressions that would preclude them from finding defendant not guilty by reason of mental disease or defect, although they believed him to be not guilty for that reason, for fear that if they did so find he could soon be freed from the state mental institution without being ready for release.

Defendant interrogated all members of the panel individually. He asked the first prospective juror this question: “If, after hearing all the evidence in this case if you find and believe under the Court’s instructions that the defendant is legally insane, was not competent, would you hesitate to find him not guilty because of fear of a premature release from a mental institution?” An objection to this inquiry was sustained. But, without objection he made this inquiry of the juror: “Now * * * do you have any feelings at all one way or the other that would prevent you, if you felt under the evidence that the defendant was legally insane, do you have any feelings at all that would prevent you from finding him not guilty * * * by reason of insanity?” (Emphasis supplied.) Each member of the panel was thereafter asked this same question in substantially the same form, the form varying from time to time by inquiring whether the prospective juror had any “feelings,” “beliefs,” “impressions,” “convictions,” “preconceived ideas,” “notions,” “opinions,” or “scruples” (and combinations of two or more of those words) that would cause him to hesitate to or prevent him from returning a verdict of not guilty by reason of insanity even though he believed that defendant was legally insane.

These inquiries as to whether the jurors had any feelings, etc., that would preclude their returning a verdict of not guilty by reason of insanity were much broader than the question to which an objection was sustained. Through these inquiries defendant was permitted to determine whether the juror had any reason, any preconceived ideas or convictions, including beliefs or opinions that defendant could be released prematurely if confined to a mental institution, that would prevent his returning a verdict of not guilty by reason of insanity. His voir dire examination of the panel was not circumscribed and there is no merit in his point.

As a part of this point he contends that the court also erred in refusing to give his instruction “C”, because this instruction would have removed any reluctance of a juror to find him not guilty by reason of mental disease or defect for fear that he could be released prematurely from a mental institution.

Instruction “C” is the same as that quoted in State v. Garrett, Mo., 391 S.W.2d 235, 1. c. 240. In Garrett, 1. c. 242, we held that the instruction was properly refused; that the “ * * * instruction has no legitimate bearing on any fact issue which the jury must decide.” Defendant recognizes that Garrett rules against his contentions, but he urges the court to reconsider this question and hold that such instruction is required to be given when requested by a defendant. The reasons given for our decision on this question in Garrett are clear and sound, and are as valid today as they were when Garrett was decided.

Defendant’s next point is that the court erred in giving instruction No. 7 and in refusing instruction “F,” because the given instruction erroneously tells the jury that if the guilt of defendant is established beyond a reasonable doubt it is their duty to convict, but that if they have a reasonable doubt of his guilt they should acquit. He contends that the jury should have been instructed that it was their duty to acquit if they had a reasonable doubt of his guilt. We note that his instruction “F” does not tell the jury it is their duty to acquit.

The only assignment in his motion for new trial that may be said to even remotely relate to the point appearing in his brief is the alleged error in refusing instruction “F” for the reason “ * * * defendant was entitled to have the jury know that the burden rests upon the state to prove beyond a reasonable doubt that defendant is guilty and that unless they so find they should acquit * * * and they should have been so told * * * in instruction numbered 7 * * The point briefed is quite different from the assignment of error in the motion and is not preserved for review; the assignment of the motion is not briefed and is, therefore, abandoned. Furthermore, instruction 7 tells the jury what this assignment would require. Moreover, an almost identical instruction was held to be not erroneous in State v. Caffey, Mo., 365 S.W.2d 607, 611-612 [9-11].

In his last point defendant charges that the court erred in permitting John B. O’Neil to serve as a juror for the reason that as a licensed attorney at law he was ineligible to serve.

This assignment in his amended motion for new trial was not supported by affidavit, but at a hearing on the motion defendant offered to prove by Mr. O’Neil and Marion Spicer, clerk of this court, that at the time of trial he was a licensed attorney at law of this state. He further offered to prove by Mr. O’Neil that he was first licensed in 1935 while residing in Kansas City, Missouri; that he had been a resident of Laclede county for approximately twenty years, but had continued to pay his annual bar enrollment fee to the circuit clerk of Jackson county. Defendant offered to prove further that neither he nor his counsel knew that Mr. O’Neil was a licensed attorney at law until the day he filed his amended motion alleging this ground. The transcript shows that Mr. O’Neil was a member of the jury, and its foreman. The parties agree in their briefs that Mr. O’Neil was a licensed attorney at the time. The state agrees that counsel for defendant did not know Mr. O’Neil was an attorney and asserts that neither counsel for the state nor the trial judge knew this fact. If we assume the truth of this assertion in the state’s brief (and it is not denied) the obvious conclusion would be that Mr. O’Neil has not engaged in the practice of law since becoming a resident of Laclede county.

Section 494.020 provides: “The following persons shall be ineligible to serve as a juror, either grand or petit:

«‡ ⅛ *
“(4) Any licensed attorney at law;

Section 494.050 provides: “No exception to a juror on account of his citizenship, nonresidence, state or age or other legal disability shall be allowed after the jury is sworn.”

In State v. Hermann, Mo., 283 S.W.2d 617, 1. c. 618-619, the court adopted this statement from Massman v. Kansas City Public Service Co., Mo., 119 S.W.2d 833: “* * * The applicable rule has been thus stated: ‘The policy of our law is that the qualification of a juror should be determined before the trial begins; that such qualification is a matter of exception; and that the parties must develop such information and take such exceptions, as they desire to preserve for appellate review, before the jury is sworn. [Citations.] An exception is made to this rule so that “where it is shown that matters which might establish prejudice or work a disqualification were actually gone into on the voir dire, and false answers were given, or deception otherwise practiced, the court will be permitted to consider the question on the motion for a new trial, either upon oral testimony taken at a hearing on the motion, or by affidavits”; because “the situation is closely akin to that when a new trial is sought for newly discovered evidence; and the complaining party is not to be left without a remedy for the want of a prior objection and exception, when the disqualification of the juror was one which he by due diligence could not have learned sooner.” ’ ”

Defendant attempts to bring himself within the exception to the rule by arguing that juror O’Neil was asked on voir dire if he knew of any reason why he could not sit as a juror in the case, and O’Neil answered, “No.” Actually, the question to which O’Neil gave this answer was: “Do you know of any reason at all why you couldn’t sit as a juror in this case and give fair and impartial consideration to all the evidence submitted, and decide the case being fair as to the State and to the defendant ?” This question was not designed to inquire whether the juror had a particular disqualification, as defendant would now seem to imply by argument. Defendant did not allege in his motion, nor does he now assert in argument, that Mr. O’Neil, by this answer, intended to deceive him. He did not allege in his motion that he was prejudiced by the fact that O’Neil was a licensed attorney, nor does he demonstrate in argument how this fact could have prejudiced him. We cannot find from the record that O’Neil intended to conceal this fact, or that he intended to deceive defendant, so as to make the exception to the rule applicable; nor may we find from this record that defendant was prejudiced by the fact that an ineligible person was a member and foreman of the jury.

Defendant did not allege, nor does he now contend, that it was not owing to his want of due diligence that he did not discover O’Neil’s ineligibility before the jury was sworn to try the case. On the contrary O’Neil’s ineligibility could have been determined before the jury was sworn by the exercise of due diligence. Due diligence required that he inquire on voir dire about the juror’s particular lack of qualification; having failed to so inquire he cannot now be heard to complain that the juror was ineligible and failed to notify the court or counsel. State v. Hermann, supra; see also: State v. Wilson, 230 Mo. 647, 132 S.W. 238, 239; State v. Gee, Mo., 280 S.W.2d 14, 17; State v. Williams, 335 Mo. 234, 71 S.W.2d 732, 735; State v. Waller, 88 Mo. 402; State v. Watson, Mo., 104 S.W.2d 272, 275 [3]; State v. Murray, 316 Mo. 31, 292 S.W. 434, 436-437 [1-5].

Examination of the record as required by Criminal Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All concur.

      . Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543;
      Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663;
      Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424;
      Patterson v. State of Colorado ex rel. Attorney General, 205 U.S. 454, 27 S. Ct. 556;
      Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507.16 L.Ed.2d 600.

      . Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694;
      Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977;
      Gideon v. Wainwright, 372 U.S. 335, 1. c. 342, 83 S.Ct. 792, 9 L.Ed.2d 799;
      Carnley v. Cochran, 369 U.S. 506, 82 S. Ct. 884, 8 L.Ed.2d 70;
      Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.


source: Caselaw Access Project

author: SPERRY, Commissioner.

license: Public Domain

text:
    Arlie Ray ROBERTSON and Bessie Robertson et al., Plaintiffs-Respondents, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendants-Appellants.
    No. 24668.
    Kansas City Court of Appeals. Missouri.
    April 3, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 5, 1967.

      Samuel J. Molby, Clayton R. Smalley, Watson, Ess, Marshall & Enggas, Kansas City, for appellants.
    Edward V. Sweeney, Monett, for respondents.
   SPERRY, Commissioner.

This is a workmen’s compensation case.

Arlie Ray and Bessie Robertson, claimants, are the parents of Donald Ray Robertson, deceased, who died of injuries ac-cidently suffered while allegedly working on the premises of Cornell Roofing Company, hereafter referred to as employer, unloading concrete blocks from employer’s truck. Claimants were the parents of the deceased and filed this claim on behalf of themselves and of Wanda Robertson, Joe Bob Robertson, Patricia Robertson and Sharon Robertson, minor brothers and sisters, and partial dependents, of deceased. United States Fidelity & Guaranty Company was employer’s insurer. The Commission unanimously awarded claimants compensation in the sum of $10,769.22, to be paid on a weekly basis of $7.92 per week for each of said partial dependents. Insurer appealed to the circuit court where the award was confirmed. It now appeals to this court.

Mr. Cornell, doing business as Cornell Roofing Company, had been engaged in the roofing business, in Independence, Missouri, for a number of years prior to the occurrence here considered. His chief business was roofing, but he also engaged in razing, remodeling, and constructing buildings. He had one principal place of business at Independence, and his employees numbered from five or six up to as many as thirty, at times.

On June 21st, 1961, employer was engaged in razing a concrete block building at Liberty, Missouri, and moving the material to his premises in Independence. A short while prior to this date deceased, an unmarried young man who, with his parents and minor brothers and sisters, lived in a rural area near Purdy, Missouri, came to Independence and found employment with Cornell. He worked with other employees at Liberty, but he ceased working for a time. On the morning of the fatal accident he appeared at insured’s place of business, at which time, near 7:00 A.M., four men, including a truck driver, were removing concrete blocks from a truck and stacking them on the premises, where they were to be used in building a warehouse. The blocks were being removed from the rear of the truck and piled or stacked on the lot and it became necessary for the truck to be moved forward in order to make room for more blocks to be stacked. The truck driver told the workmen in the rear to stand clear, which they all did excepting deceased, and the truck was moved forward, but it rolled backward and pinned deceased between the rear of the truck and the pile of stacked blocks, killing him immediately.

The incident greatly affected Mr. Cornell, emotionally. That same day a representative of the insurer called on him for a report of the incident and asked him if deceased was an employee that day. The evidence was that Mr. Cornell stated that he was not. Sometime thereafter, Mr. Cornell’s liability carrier denied liability for the truck accident, and his insurer here also denied liability on the grounds that decedent was not an employee of insured.

In his testimony, by deposition and at this hearing, Mr. Cornell expressed himself as thereby being “in a devil of a shape.” Mr. Cornell’s testimony was that, later, he remembered that deceased did ask him, on the morning of the accident, for employment, and that he employed him. He stated, at this hearing, that he was present and saw deceased actually working, unloading blocks. There was other testimony to the effect that deceased did no work whatever, prior to the accident. However, Mr. Johnson, insured’s foreman for a number of years, testified to the effect that deceased reported to him that morning and asked him what he wanted him to do; that witness assumed that he had been employed and was an employee of the insured. He stated that he told deceased to assist in unloading .the blocks; that he did not accompany him to the site of the truck; that he had, in the past, employed workmen but that the custom was that Mr. Cornell did the hiring and most of the “firing” but that, on this occasion, he told deceased where to work and what to do. The accident occurred within a very short while after work began. From all of the available evidence deceased was at the rear of the loaded truck, between it and the stack of blocks that had previously been unloaded, when he was killed. That is where he should have been, where the other unloaders were, when the truck pulled forward to make room for more blocks. The others moved from behind the truck but, for some reason, deceased did not stand clear, and he was crushed to death between the rear end of the truck and the stack of blocks when the truck rolled back.

The referee, who heard the testimony, denied compensation but, on review by the full Commission, compensation was awarded as above stated, by the unanimous vote of the members.

Insurer’s chief criticism of the award is that deceased’s injuries and death occurred while he was not an employee of insured, and that it is contrary to the overwhelming weight of the evidence. We must consider the evidence, together with all reasonable inferences to be drawn therefrom, in the light most favorable to support the findings and award of the Commission. The Commission is the trier of the facts and the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. Mashburn v. Chevrolet—Kansas City Division, General Motors Corp., 397 S.W.2d (Mo.App.) 23, 28. We must affirm the award if it is supported by competent and substantial evidence, as it is. Mashburn v. Chevrolet—Kansas City Division, supra. Certainly, we cannot say that the award is contrary to the overwhelming weight of the evidence. The members of the Commission found, from substantial evidence, that deceased was an employee of insured when he met his death; and the evidence is uncontradicted to the effect that he met his death, because of an accident, at a time when he was at a place where he was required to be in order to perform the duty to which he had been assigned by insured’s foreman, who was in charge of insured’s business at the time. Other employees had been working in that location just prior to the truck being moved. Kammeyer v. Board of Education, 393 S.W.2d (Mo.App.) 122, 127.

Insurer also contends that the award, as to the amount, is not correctly computed. The point is ruled adversely. Section 287.250 R.S.Mo.1959, (4), (5), (6), V.A.M.S. The method of arriving at the amount of the award is spelled out in detail under the Commission’s findings of fact. We find it to be correct under the applicable law and the facts in evidence in this case. Johnson v. Kruckemeyer, 224 Mo.App. 351, 29 S.W.2d 730, 732-733.

The award, in toto, is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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


author: BLAIR, Judge. PER CURIAM.

text:
    Donald E. BRYANT, Respondent, v. MONTGOMERY WARD & COMPANY, Appellant.
    No. 24446.
    Kansas City Court of Appeals. Missouri.
    April 3, 1967.
    Motion for Rehearing and/or Transfre to Supreme Court Denied June 5, 1967.

      Watson, Ess, Marshall & Enggas, Samuel J. Molby, Vincent E. Rawson, Clayton R. Smalley, Kansas City, for appellant.
    Laurence B. Silks, Silks & Silks, Kansas City, for respondent.
   BLAIR, Judge.

Presented is an appeal by Montgomery Ward & Company, employer and self-insurer, from a judgment of the Circuit Court of Jackson County reversing an award of the Industrial Commission denying workmen’s compensation to Donald E. Bryant, a former employee of that company. The single question on this appeal is whether Bryant’s claim for compensation was barred by limitations. Secs. 287.430 and 287.140,V.A.M.S. The referee found “from all the credible evidence that the claim for compensation filed by the employee was not filed within one year after the date of the injury, nor was said claim for compensation filed within one year after the furnishing of medical treatment or the payment of compensation.” He denied compensation. In due course, Bryant filed his application for review by the Industrial Commission on the ground “that the employee's claim for compensation was filed within one year after the furnishing by employer of medical treatment or the payment of compensation.” The Industrial Commission found the award of the referee to be “correct in all respects” and “supported by competent and substantial evidence”. It adopted the referee’s findings of fact and conclusions of law in favor of the employer and against the employee and affirmed them as its own. It awarded no compensation. There has never been any claim by Bryant that any payment in money was ever made to him or that he filed his claim with the Industrial Commission within one year after his injury. Actually, his claim was not filed until IS months and 22 days after his injury. From the commencement of this litigation before the referee until this time his stand has been that his claim was filed within one year after the employer furnished himt medical treatment or paid him compensation and that it is not barred by limitations.

Sec. 287.430, V.A.M.S. provides “No proceedings for compensation * * * shall be maintained unless the claim therefor be filed with the commission within one year after the injury * * *, or in case payments have been made on account of the injury * * *, within one year from the date of the last payment.” Sec. 287.140,V.A.M.S. provides "In addition to-all other compensation, the employee shall receive and the employer shall provide such medical, surgical and hospital treatment, * * * as may reasonably be required for the first ninety days after the injury or disability, to cure and relieve from the effects of the injury, and thereafter such additional similar treatment as the commission by special order may determine to be necessary.” (Emphasis supplied.) In construing these statutes our courts hold that the act of the employer in furnishing medical treatment to his injured employee constitutes a payment on account of the injury, even though it is not payment in money, and this is true whether the treatment is furnished under compulsion of law or whether it is voluntarily furnished after the expiration of the time over which the employer’s statutory liability for medical treatment extends. Buecker v. Roberts, Mo.App., 260 S.W.2d 325, 326; Welborn v. Southern Equipment Co., Mo., 395 S.W.2d 119, 124. The bare rendition of medical treatment by the employer to the injured employee, without more, constitutes statutory payment on account of the injury, Morgan v. Krey Packing Co., Mo.App., 403 S.W.2d 668, 670, and the one year statute begins to run from the date the employer last furnishes the employee such treatment. McEneny v. S. S. Kresge Co., 333 Mo. 817, 62 S.W.2d 1067, 1070.

There is no question on this appeal that Bryant sustained a back injury while discharging his duties as a clerk at the service counter of one of employer’s stores in Kansas City, Missouri, on November 27, 1961. Immediately following the injury he began to suffer pain and it continued during the next day and the following day. On this last day it became more severe. He informed his superior that he had “apparently injured something” and was directed to consult Doctor Harless, a physician employed by the employer, Montgomery Ward & Company, in its medical department. Doctor Harless examined Bryant and he was given treatment in the medical department at various times from November 29, 1961 until January 4, 1962. Thereafter he did not return for treatment and he was formally discharged as a patient on January 18, 1962. Subsequently, and during the same year, he left the employer and found work elsewhere.

After leaving the employer, Bryant, on December 10, 1962, contacted William A. Voss, an attorney for the employer who was in charge of its Workmen’s Compensation problems. He told Voss that he had injured his back while an employee of the employer in 1961 and that it was still troubling him. Voss suggested to him that he be examined by Doctor Harless, the employer’s physician, and, if Doctor Harless thought it desirable, by a consultant. Voss swore he told Bryant that after this' examination he would be in a position to advise him whether the employer would furnish him medical treatment. Bryant admits that this is the truth. Voss swore that his referral of Bryant to Doctor Harless was for “examination and report (to Voss) only”. Pursuantly, Bryant called on Doctor Harless on December 14, 1962. There is a direct conflict in the evidence concerning what occurred when Bryant was examined by Doctor Harless. Doctor Harless testified that he administered no treatment whatever to Bryant then or thereafter for the reason that Bryant had been referred to him “for examination and report only”. His medical record made by him on that day recites that Bryant was given only a physical examination and “no treatment”. On the other hand, Bryant testified that Doctor Harless treated him with a heat lamp on that day and advised him to quit wearing his hunting boots and to insert a piece of plywood beneath his mattress. He testified that Doctor Harless also prescribed exercises. Doctor Harless denied all of this testimony by Bryant. Bryant, Voss and Doctor Harless were all examined and cross-examined at length on the question whether any medical treatment was authorized for Bryant and whether he was given any medical treatment or advice on December 14, 1962. There is no need to decide whether what Bryant testified Doctor Harless did and advised him to do, in addition to giving him a mere physical examination, constituted medical treatment in the sense intended by Section 287.140, V.A.M.S. Nor is there any need to discuss the testimony of each in detail, for this summary of the evidence suffices to illustrate the direct conflict between the testimony of Bryant and that of Voss and Doctor Harless. The testimony of Bryant that he was given what he regards as medical treatment and advice by Doctor Horless on December 14, 1962, was competent and substantial evidence so far as it went, but so was the contradictory testimony of Voss that he authorized only a physical examination and a report for his information, and no treatment, on December 10, 1962, and the testimony of Doctor Harless that he gave Bryant only a physical examination, and no treatment and no advice, on December 14, 1962.

Our review is limited to determining whether the commission could have reasonably based its findings and award on the evidence before it. In arriving at this determination, the guidelines that govern us have long been established. If there is competent and substantial evidence on which the commission bases its findings and award, and if they are not contrary to the law or clearly contrary to the overwhelming weight of the evidence, courts are bound to affirm. For, in these circumstances, they have no authority to substitute their own views for those of the commission on the credibility of the witnesses or to interfere with its action because it chose to believe the competent and substantial evidence supporting its findings and award and rejected competent and substantial evidence to the contrary. Greer v. Missouri State Highway Department, Mo.App., 362 S.W.2d 773, 778; Schmidt v. Rice-O’Neill Shoe Co., Mo.App., 226 S.W.2d 358, 362; Thacker v. Massman Construction Co., Mo., 247 S.W.2d 623, 627. Bryant does not assert that the findings of the commission on the conflicting evidence we have summarized are clearly contrary to the overwhelming weight of the evidence and that question is not in this case. Indeed, on this record, such an assertion would be altogether meritless.

Accordingly, we must accept as the truth of this controversy the findings of the commission that the employer and self-insurer on December 10, 1962, authorized only a physical examination of Bryant for the purpose of obtaining a report for the information of its attorney, and no treatment, and that on December 14, 1962, he was given only a physical examination, and was furnished no treatment and given no advice, for the findings of fact the commission made, supported as they are by competent and substantial evidence, and not contrary to the overwhelming weight of the evidence, are conclusive on us on this appeal. Enyard v. Consolidated Underwriters, Mo.App., 390 S.W.2d 417, 423; Ousley v. Hawthorn Co., Division of Kellwood Co., Mo.App., 397 S.W.2d 719, 723. Confronted by the commission’s conclusive findings of fact, the question presented to us by Bryant on this appeal is merely a question of law.

Bryant contends that a physical examination, without more, for the information of the employer and self-insurer, is medical treatment and payment as defined by Sections 287.140 and 287.430, V.A.M.S. We cannot agree. Section 287.140, V.A. M.S. provides, as we have noticed, that in addition to all other compensation, the employer shall provide the employee with such medical, surgical and hospital treatment as may reasonably be required for the first ninety days after the injury or disability, to cure and relieve from the effects of the injury, and thereafter such additional similar treatment as the commission by special order may determine to be necessary. We have noticed that a special order is not a prerequisite if the employer voluntarily furnishes medical treatment after the lapse of the ninety day period and that the one year statute of limitations, Section 287.430, V.A.M.S., runs from the date of the last medical treatment. Thus the Workmen’s Compensation Law provides not only for money compensation to be paid by the employer to the employee for injuries sustained, but also that the employee is entitled to have medical treatment furnished to him by his employer. The right to such medical treatment is a part of the employee’s “compensation” awarded to him by the clear provisions of the law itself, because the language used in Section 287.140, “[i]n addition to all other compensation”, has the effect of classifying such medical treatment as “compensation” and payment on account of the injury. Parker v. St. Louis Car Co., Mo.App., 145 S.W.2d 482, 484. The Workmen’s Compensation Law is explicit in declaring what compensation shall be paid an employee and we have discovered nothing in the law indicating that a mere physical examination of the sort the commission found was made here is to be classified as “compensation” and payment.

The St. Louis Court of Appeals has construed Sections 287.140 and 287.430 of the Workmen’s Compensation Law in the same way. Lutman v. American Shoe Mach. Co., Mo.App., 151 S.W.2d 701, 709. There the claimant was given a physical examination and no medical treatment. He contended the mere physical examination was medical treatment and that it tolled the statute of limitations. The St. Louis Court of Appeals said “We would not be warranted in holding that an examination made by a doctor, for the purpose of diagnosis, constituted ‘such medical, surgical, and hospital treatment * * * as may reasonably be required for the first ninety days after the injury or disability, to cure and relieve from the effects of the injury’, as provided by Section 3311(a), R.S.Mo. 1929”, now Section 287.140. “It is clear that the words ‘examination’ and ‘treatment’ have entirely different meanings. An examination is, of course, made for the purpose of diagnosing the condition complained of, after which the question of treatment arises. They are clearly two separate and distinct processes. The word ‘treatment’ has been defined as ‘the act or manner of treating or applying remedies

to; the mode or course pursued for remedial purposes; as the treatment of a disease.’ Lloyd’s Encyclopedic Dictionary. To hold that ‘examination’ means ‘medical, surgical or hospital treatment’ would do violence to the plain and simple meanings of the words. When the Legislature said treatment ‘to cure and relieve from the effects of the injury’, we do not think it meant ‘examination to diagnose a condition.’ * * * The grouping of the words ‘medical, surgical, and hospital treatment’ by the Legislature shows plainly what the lawmakers had in mind, and clearly does not include mere diagnosis * * *. The above words, not being of a peculiar or technical nature, ‘shall be taken in their plain or ordinary and usual sense’. Section 655, R.S.Mo.1939, * * Now Sec. 1.090 V.A.M.S.

We agree with the St. Louis Court of Appeals. But what ends this controversy is the decision of the Supreme Court en banc in Myers v. Cap Sheaf Bread Co., 354 Mo. 943, 950, 192 S.W.2d 503, 506. The court en banc had before it for consideration a divisional opinion written by Commissioner Westhues in a Workmen’s Compensation case. In that opinion there was some language that Judge Hyde thought could be construed as meaning that a mere physical examination for the purpose of making a report to the insurer was, without more, medical treatment and payment within the meaning of Section 287.140, V.A.M.S., and tolled the statute of limitations as payment under Section 287.430, V.A.M.S. He wrote a separate concurring opinion in which he said “If the examination of claimant on October 9, 1941, was only for the purpose of making a report to the insurance company, I do not think it could be construed as furnishing medical treatment under Section 3701 (now Section 287.140, V.A.M.S.) so as to constitute a payment under Section 3727.” (Now Sec. 287.430, V.A.M.S.) All of the judges sitting en banc concurred in this language of Judge Hyde’s separate concurring opinion. The decision in Myers stands as an absolute block in the way to Bryant’s claim. The rulings in Myers and Lutman are not anomalies. Like rulings have been made in other jurisdictions. Sampson v. Thornton, 8 N.J. 415, 86 A.2d 117, 119; Rahder v. Industrial Commission, 105 Colo. 594, 100 P.2d 1043; Hunt v. Industrial Accident Commission, 43 Cal.App. 373, 185 P. 215, 216; Garden Farm Dairy et al. v. Dorchak et al., 102 Colo. 36, 70 P.2d 743, 744; Covert v. Industrial Commission of Ohio, 139 Ohio St. 401, 40 N.W.2d 672, 674; Larson’s Workmen’s Compensation Law, Vol. 2, Sec. 78.43(b), p. 271. On this record, as we must view it, Bryant was furnished no medical treatment or advice at all and the physical examination given him did not constitute payment tolling the statute of limitations under the authority of Myers and Lutman.

Bryant argues that there is language in Igoe v. Slaton Block Co., Mo.App., 329 S.W.2d 39, that would support an opposite ruling. Sufficient it is to say that an opposite ruling would directly conflict with the decision of the Supreme Court en banc in Myers by which we are controlled. Art. V, Sec. 2, Const.Mo., V.A.M.S.

Accordingly, the judgment of the circuit court is reversed and the cause is remanded with the direction that it reinstate the commission’s award.

All concur.

ON MOTION FOR REHEARING, OR IN THE ALTERNATIVE, FOR TRANSFER TO THE SUPREME COURT

PER CURIAM.

On motion for rehearing, or in the alternative, for transfer to the Supreme Court, Bryant claims that we should have considered whether Sec. 516.280 V.A.M.S. applies to this case. This section provides that “If any person, by absconding or concealing himself, or by any other improper act, prevents the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented.” (Emphasis supplied.) He says that “The untimely filing of his claim should be excused because of the improper actions of fraud and concealment on the part of the employer, * * * There is no merit in this claim.

In the first place, no such claim was raised in his brief by any sufficient point relied on as required by Civil Rule 83.05. His point relied on reads “The Trial Court Did Not Err in Holding That Respondent’s Claim Was Filed Within the Time Prescribed by Law. (1) Because M.R.S.1959, § 287.430 is a limitation statute operating on the remedy and not on the right itself; therefore must be given a liberal interpretation with the thought in mind toward the public welfare.” This point is wholly abstract and insufficient to present the question Bryant now undertakes to raise. Ambrose v. M.F.A. Co-operative Ass’n, Mo., 266 S.W.2d 647, 650; White v. Nelson, Mo.App., 283 S.W.2d 926, 927. Moreover, under this point he does not even cite Sec. 516.280, V.A.M.S. and in his argument on this point he does not even mention it.

In the second place, a re-examination of his testimony discloses no slightest suggestion that he was asserting he had been prevented from filing his claim within the time fixed by law by any “improper act” or fraud or concealment on the part of the employer or any one else.

In the third place, he made no such claim before the commission. In the written argument he submitted to the commission he said “For the purpose of this review, the sole question submitted to this Commission for consideration and determination, is whether or not the Petitioner filed his claim within the one year period of limitation, i. e., one year after the furnishing of medical aid or payment of benefits.” This was the only question he presented and the only question the commission decided. It is settled that questions which might have been presented to the commission to establish a case or defense cannot be litigated on appeal from its award where a party neglects to present and litigate them originally before the cottimission. Ferguson v. Ozark Distributing Company, 233 Mo.App. 68, 117 S.W.2d 399, 402; Phillips v. Air Reduction Sales Company, 337 Mo. 587, 85 S.W.2d 551, 559; De Puente v. Chevrolet-St. Louis Division of General Motors, Mo.App., 117 S.W.2d 641, 646; Nichols v. Davidson Hotel Company, Mo.App., 333 S.W.2d 536. This is an absolute bar to any consideration of Bryant’s present claim.

The motion for rehearing, or in the alternative, for transfer to the Supreme Court is overruled.


author: J. P. MORGAN, Special Judge.

text:
    William R. RAEF (Employee), Respondent, v. STOCK-HARTIS, INC. (Employer) and Liberty Mutual Insurance Co. (Insurer), Appellants.
    No. 24418.
    Kansas City Court of Appeals. Missouri.
    April 3, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 5, 1967.

      A. Warren Francis, Lloyd A. Hamrick, Roger J. Staab, Kansas City, for appellants.
    Bellemere & Bellemere, Kansas City, for respondent.
   J. P. MORGAN, Special Judge.

In this workmen’s compensation case, the appeal raises two questions. First, was there an “accident” as that term is defined by the statute; and secondly, was respondent a statutory employee of appellants.

Claimant originally filed his claim for compensation against the Alex Bascom Company, employer, and its insurer, The American Motorist Insurance Company, and Robert J. Vanderpool, uninsured employer. Thereafter, an amended claim brought in Stock-Hartis, Inc., as an additional employer and Liberty Mutual Insurance Company as its insurer.

After an extended hearing before the referee, an award was made in favor of claimant. He found that claimant had sustained a compensable injury resulting from an accident on June 10, 1963, and allowed 15% permanent partial disability of the body as a whole, temporary total disability and reimbursement of medical expense in the amount of $661.59 for a total of $4,161.59. The referee further found that claimant was an employee of Vanderpool, who was an uninsured minor employer; that Vander-pool was a sub-contractor of Stock-Hartis; that claimant was a statutory employee of Stock-Hartis as defined in Section 287.040 R.S.Mo. 1959; V.A.M.S., and as a statutory employer, Stock-Hartis and its insurer, appellants, were liable for the payments due under the award.

On review the Industrial Commission, Commissioner Cates dissenting, entered its final award denying compensation with the following finding:

“We find from all the evidence that the employee, William R. Raef, did not sustain an accident arising out of and in the course of his employment as alleged. Compensation, therefore, must be and is hereby denied.”

.On claimant’s appeal, the circuit court reversed the commission by reason of its finding that “there is not sufficient competent evidence in the record to warrant said Industrial Commission in making said award denying compensation” and remanded the cause to the commission for further proceedings not inconsistent with that judgment.

The general relationship of the numerous parties was established with little variance, but divergent opinions arose as to the legal significance and obligations of each resulting from their status as established by the evidence. Claimant, Raef, was forty-seven years of age and had always been a carpenter. He had been so engaged for approximately two or three weeks doing “trim work” as an employee of Vanderpool prior to the alleged accident. Vanderpool for a period longer than a year had an oral contract to do the trim work required by Bas-com in his apartment house construction projects, and he generally furnished five carpenters in addition to himself. Vander-pool submitted to Bascom each week a statement for labor, and from the funds received he individually paid the carpenters, including claimant, hired by him. The arrangement was further complicated by testimony that Vanderpool’s bids on the different projects were a percentage cheaper than others in consideration for Bascom carrying the insurance on Vanderpool and reimbursing him each year the sum of $450.00 for social security payments. Although not clearly established, there was some testimony that Vanderpool had accepted suggestions of Bascom as to whom he should hire, but this was not true as to claimant. Stock-Hartis was engaged in the sale of building specialty materials consisting of kitchen cabinets, built-in appliances and builders’ hardware to contractors, and had contracted with Bascom to deliver and install all kitchen cabinets required on this project. Stock-Hartis then entered into an agreement with Vanderpool for him to install the cabinets for $22.00. It is significant that no one contends that Vanderpool's arrangements with Bascom prevented this further agreement with Stock-Hartis. The incident in question was alleged to have occurred while claimant was working for Vanderpool in carrying out this contract with Stock-Hartis.

Considering the evidence in the light most favorable to the award of the commission, the ultimate question is whether or not the circuit court was correct in finding that it was not supported by competent and substantial evidence. The claimant had the burden of proof to bring himself within the coverage of the Workmen’s Compensation Act. This court can not substitute its judgment for that of the commission. Merriman v. Ben Gutman Truck Service, Inc., Mo., 392 S.W.2d 292 (297). The award, although meeting the requirements of a general finding Leilich v. Chevrolet Motor Company, 328 Mo. 112, 40 S.W.2d 601, falls short of that recommended by our Supreme Court in Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136 at 142, wherein it was stated: “Findings of fact are required by Secs. 287.460 and 287.-480; and one of the questions on appeal, as provided by Sec. 287.490, is whether the facts found by the Commission support the award. Thus we think these statutory provisions contemplate an unequivocal affirmative finding as to what the facts are.” Particularly should this be true in those instances, such as this case, where a decision by the referee is reversed by a divided commission without revealing if such action resulted from its finding the facts otherwise, or that the conclusion reached was improper in view of the facts found. However, review is possible from the record as made.

The direct examination of claimant touching on the manner in which his alleged injury occurred is as follows:

“A. Well, I started to set that cabinet. I picked it up and put it in place, and I reached around for the hammer, when I reached for the hammer the cabinet started to slip, and I gave it a shove to put it back up with my left hand, and when I did something popped in my back.
“Q. Then what, if anything, did you do ?
“A. Well, I hit the floor and the cabinet hit the floor, and I laid there a little bit, and finally I crawled over to some trestles I had sitting with underlay on them, and I crawled up on the underlay and I laid there awhile.”
Cross-examination emphasized the following :
“Q. And you pushed it back up into place, and it was when you pushed it back up that you had pain in your back?
“A. That is right. When I pushed it back up that my back popped.
“Q. Then the first time you had pain in your back was when you pushed it back up into position ?
“A. That is right.”

The employer argues, “The cabinet ‘slipping’ did not constitute an accident in this case because it did not produce at the time objective symptoms of an injury. The evidence is clear that the injury (pain in back) was caused when the claimant pushed the cabinet back into position,” and in the absence of evidence in the record as to the weight of the cabinet, the claim can not be bottomed on “abnormal strain” to bring it within the doctrine set out in Crow v. Missouri Implement & Tractor Co., Mo., 307 S.W.2d 401. This contention is ill-founded, because it has been held that where events followed in rapid succession, and formed one continuous chain uninterrupted by an intervening cause, and terminated in the employee’s injury, they logically could not be separated. Jones v. Purity Textiles Corp., Mo.App., 328 S.W.2d 714; Brotherton v. International Shoe Company, Mo. App., 360 S.W.2d 108. Whether or not an accident occurred must be determined from the events reflected in that period of time between the cabinet first slipping and that moment when it and the employee both came to rest on the floor. The controlling statutory definition of “accident” as set out in Section 287.020(2) is: “The word ‘accident’ * * * shall * * * be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.” The slipping of the cabinet would surely be an “unexpected event happening suddenly”, as it was not of a preconceived design nor a planned incident of cabinet installation. “Violently” is a relative term having a connotation sufficiently broad to cover causes found in that vast area between the most minor compensable injury and accidental death, and is properly descriptive of any cause efficient in producing a harmful result. Claimant testified that his back hurt the rest of the day and that he consulted a doctor that evening as well as reporting the injury to his immediate employer, Vanderpool. No conflicting or contradictory evidence was offered as to these events, and claimant made a prima facie case within the statutory definition of “accident” in its usual sense, and no opinion is required as to whether or not such facts would sustain a claim based on the theory of “abnormal strain.”

Some four days later and prior to claimant’s subsequent confinement in a hospital for treatment of his back, a disturbance on the project involved a conflict between the painters and carpenters. It apparently was dominated by claimant’s son of some three-hundred pounds. A painter, who had been thrown through a louvered door and down a flight of steps during this altercation, appeared as a witness. He said claimant had been shoved against a pile of sheet-rock and several days later had stated he hurt his back in the fight. A portion of his testimony is as follows:

“Q. I will ask if Mr. Bill Raef ever struck you?
“A. Well, I imagine he did.
“Q. Don’t imagine. I want to know whether or not — you are under oath, I want to know whether or not he struck you? ,
“A. Well, I just couldn’t say.” ***** *
“Q. What did he say was hurting him?
“A. He said his back was hurt in the fight.
“Q. Did he tell you that?
“A. He never did tell me, because I wouldn’t talk to him.”

Premised on claimants denial of this testimony on rebuttal, employer in its reply brief asserts that the credibility of claimant thereby became an issue and that it was a question solely for the Industrial Commission, because “ * * * they could have found against the claimant on the basis that they did not believe his testimony.” This argument correctly states a general principle that was concisely set out in the recent case of Miranda v. American Refrigerator Transit Co., Mo.App., 392 S.W.2d 413 (419), wherein it was stated: “It has been held time and again that the commission does not have to accept the testimony of claimant as true. Foster v. Carter Carburetor Corp., Mo.App., 264 S.W.2d 904; Garner v. Research Clinic, Mo.App., 280 S.W.2d 416,1. c. 423. This is especially true if there is a substantial basis from all the evidence for a finding that such testimony is untrue. Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136; Banks v. City of Hannibal, Mo.App., 283 S.W.2d 909, 1. c. 913. This rule also applies to the testimony of claimant’s witnesses. Snowbarger v. M.F.A. Central Co-op., Mo., 349 S.W.2d 224.” See also Scott v. Wheelock Bros., 357 Mo. 480, 209 S.W.2d 149. It is difficult to ascertain the true import of this argument of the employer in view of the matter-of-fact manner in which it is presented. Does it mean that the conflict of testimony concerning the fight, and claimant’s supposed statement that his back was hurt in the fight, created an issue of credibility as to whether or not “an accident” occurred? If this is the gist of the argument, it can not be sustained because the evidence as to the fight was not inconsistent with the occurrence of the accident as testified to by claimant. In other words, he could have suffered the accident as claimed and received an injury to his back, and he also could have participated in the fight and hurt his back again at this later date. Thus this evidence concerning the fight would be material as to whether or not the claimed disability resulted from the injury at the time of the accident, but it would not be material to the issue of whether or not the accident occurred. In this light, this conflict in the testimony did not create a question of credibility on the issue of “accident”. However, to accept this argument in its broadest sense, it could mean the employer contends that because of the conflict between the testimony of the painter and the testimony of the claimant in relating details of the fight, all of claimant’s testimony was impeached, including his uncontradicted testimony as to his alleged accident. The thrust of this argument is immediately confronted with the fact the award was not made upon any “stated” ground of lack of credibility of claimant or his immediate employer, Van-derpool. This argument would further presuppose a reluctance on the part of the commission to indicate that it had exercised its prerogative, as trier of the facts, to refuse to accept the testimony of a witness as true. The weakness of such an assumption is evidenced by those instances where the commission has rather forcefully outlined its reasons for not giving full credence to the testimony of a witness. McClelland v. Hagerty Wrecking Co., Mo.App., 384 S.W.2d 93 (95) ; Miranda v. American Refrigerator Transit Co., supra. In searching the record to determine if any question of credibility affected the conclusion reached by two members of the commission, the findings of the referee assume more significance, although they were not binding on the commission nor on this court. Banks v. City of Hannibal, Mo.App., 283 S.W.2d 909; Michler v. Krey Packing Co., supra. In finding in favor of claimant, the referee did not directly or by inference question the credibility of any witness. As previously noted, the final award is silent on any question of credibility. Significantly, the dissenting opinion in the record makes no reference to such an issue, but refers to the “slipping of the cabinet” and other related facts as described by claimant and concludes that the findings of the referee should have been affirmed. In the absence of any of the record entries reflecting that the award of the commission was based on lack of credibility,' any basis for employer's argument must evolve, if at all, from the evidence. In addition to the testimony heretofore set out, claimant’s immediate employer, Vanderpool, testified as follows:

“Q. Were you present on the job on June 10, 1963?
“A. I either came over that afternoon or the next morning.
“Q. Did Mr. Raef request tp see a doctor ?
“A. He said he was going to try and wait if he could. We were so busy, if he could possibly get by on pain pills that he was going to try to get to a certain spot on those apartments, but he wouldn’t do it then. He was going to get it done, or else.”

This testimony was consistent with that of claimant and is indicative that “some” injury was suffered by claimant prior to any possible injury from the fight several days later. The evidence does not show any reasonable or substantial basis for refusing to believe the uncontradicted evidence of the claimant concerning the accident. The employer, in a further effort to buttress its argument that credibility might have been an issue, quotes that portion of the award reading, “We find from all the evidence * * * ”, and then contends this indicated the commission “ * * * did not limit themselves to the testimony of the claimant alone.” It would be rather presumptuous to impugn this statement of the commission with the dire implications suggested. Quite to the contrary, it is assumed that the commission did review all of the evidence, and it is not reasonable to give the terminologv used any strained interpretation. “It is not necessary or appropriate that we search for any hidden or subtle meaning.” Smith v. Terminal Transfer Company, Mo.App., 372 S.W.2d 659 (668). The only reasonable synthesis that can be resolved, after consideration of the record, is that credibility was not an issue and that a majority of the members of the commission determined that the incident of June 10, 1963, was not an “accident” as that term is defined by the statute. The finding of this ultimate fact by the commission necessarily involved an interpretation and application of the law and the conclusion reached is not binding on this court. Mer-riman v. Ben Gutman Truck Service, Inc., Mo., supra.

From a review of the entire record, it is apparent that there is no substantial and competent evidence in the record to support the finding of the commission that no accident, as that term is defined by the statute, occurred, and that the commission’s finding is against the overwhelming weight of all the evidence.

Although not necessary for a disposition of this appeal, the parties have briefed and presented the issue as to whether or not claimant was a statutory employee of Stock-Hartis as provided in Section 287.-040(1). In view of the arguments made, that issue would have to be decided on remand and should be disposed of at this time. The statutory requirements were recently listed by this court in Shireman v. Rainen Home Furnishers, Inc., 402 S.W.2d 64 and 68: “The evidence must show (1) that the work was performed under a contract, (2) that the injury occurred on or about the premises of the employer, and (3) that the injury must have occurred while the employee was doing work in the usual course of employer’s business.” It is agreed that Stock-Hartis had contracted with Vanderpool for installation of the cabinets. However, the latter two requirements are in dispute. The original bid of Stock-Hartis submitted to Bascom is of interest:

“I would like to take this opportunity to submit my quotation for the Kitchen Cabinets as per your drawings for the Apartment Building at 4526 Penn.
“This quotation is for the Willett Cabinets just like the ones I installed for your company at 4521 Jefferson.
“The total price for cabinets, top material and installation is $4,574.32 * * * signed: Stock-Hartis, Inc.”

Mr. Hartis testified installation was not regularly required, and, “Q. If you sold cabinets, you had to rely upon an outside contractor to install them? A. Where they requested installation, where the sale was contingent upon installation, yes.” It is obvious that willingness to make an installation if necessary to make a sale brought such work into the scope of its “usual business” as evidenced by its having done so in the past and readiness to do so in the future. Noland v. George Tatum Mercantile Co., Mo., 313 S.W.2d 633. This leaves only one question which is whether or not the accident “occurred on or about the premises of the employer.” The employer points out that the home office of Stock-Hartis was at 2022 Charlotte Street and the construction project was located at 4526 Pennsylvania, both in Kansas City, Missouri. This suggestion does not give an answer but does emphasize the problem. “On or about the premises” as used in the statute has not been limited to permanent situs of the employer’s business, but has been held to include other locations that temporarily may be under control by virtue of the work being done. In Sargent v. Clements, 337 Mo. 1127, 88 S.W.2d 174, claimant’s husband was killed on the right-of-way while acting as an independent contractor in doing blasting for a contractor engaged in building a section of public highway, and the court at page 178 said: ■“The term ‘premises’ as so used should not be given a narrow or refined construction, but rather in keeping with both the spirit and specific direction * * * of the Workmen’s Compensation Act, should be liberally construed and applied. We discover no intention on the part of the Legislature to limit or restrict the term ‘premises’ as here used to premises of which the employer is the owner * * *. We think it a fair interpretation * * * to hold that ‘premises’ as there used contemplates any place, under the exclusive control of the employer, where the employer’s usual business is being carried on or conductéd * * After Bascom accepted the bid of Stock-Hartis to sell and “install” the cabinets, a right of ingress and egress to make such installation would be implied, Baker v. Iowa-Missouri Walnut Log Co., Mo.App., 270 S.W.2d 73, and this would be a right exclusive with Stock-Hartis and not available to the general public. An employee of Stock-Hartis went to the scene and marked fhe places for installation with corresponding numbers on the cabinets. At this place and time and in connection with the work being done, Stock-Hartis did have exclusive ■control, and it of necessity follows that when claimant was hanging these cabinets in accordance with its direction, he was on •or about its premises as contemplated by the statute. With all of the statutory requirements being present, the referee correctly found claimant to be a statutory employee of Stock-Hartis.

We, therefore, find, that the award of the commission is not supported by substantial and competent evidence and that it is against the overwhelming weight of all the evidence in the case, and we affirm the judgment of the circuit court reversing the award of the commission and remanding the cause for further proceedings.

All concur.