text:
    Charlton ANDERSON, Plaintiff-Respondent, v. Vaughn MANEVAL, d/b/a Maneval Grain and Supply Company, Defendant-Appellant.
    No. 8563.
    Springfield Court of Appeals. Missouri.
    Dec. 16, 1966.
    Motion for Rehearing or for Transfer to Supreme Court Denied Jan. 23, 1967.
    Application to Transfer Denied March 13, 1967.

      John R. Martin, Joplin, for defendant-appellant.
    William C. Myers, Jr., Garold L. Mor-ían, Webb City, for plaintiff-respondent.
   HOGAN, Judge.

Plaintiff Charlton Anderson has recovered the sum of $12,000.00 for personal injuries sustained as the result of a fall from his truck while he was on defendant’s premises as a business visitor. The defendant has appealed, principally on the ground that plaintiff made no submissible case. The nature and extent of plaintiff’s injuries are not in dispute. At the time in question, the defendant operated a grain and feed supply business in Jasper, Missouri, and it is conceded that the premises upon which the casualty occurred were under his control. It is also conceded that, at least initially, the plaintiff was present as an invitee or business visitor.

Taken most favorably to the result reached, the record shows that, among other things, defendant grinds and mixes grain to his customers’ specifications. To obtain this service, the customer unloads his grain into a grain pit on the south side of the defendant’s elevator. This pit or bin is located below and adjacent to a dock or platform which is part of the elevator; it is covered by a rectangular steel grate. The floor of the platform is about four feet above the grate, and above the floor of the platform there is a doorway seven feet high and five feet wide, which is covered by a two-piece sliding door hung on the outside of the building on an overhead rail. Customers who have grain to be ground back their trucks up even with or slightly over the grate and unload their grain into the pit. With the truck in position for unloading, the floor of the elevator is level with and at right angles to the bed of the truck, so that the doorway is immediately behind the customer’s vehicle. In normal operation, the doors are opened by sliding them laterally along the overhead rail.

It was shown by the plaintiff that these doors had originally been a single overhead door, mounted on a vertical track so that it swung down and fastened at the bottom “like a garage door.” The original door, when closed, had been fixed and stationary. Sometime before the accident — Mr. Mane-val testified it had been several years — the overhead door was “cut in two” and was made into sliding doors operated, as we have said, on a lateral track. At the time the sliding doors were installed, there had been a ledge or stop along the edge of the platform which “held the door firm,” but shortly afterward the stop was removed. Defendant’s explanation for the change in the height of the stop was that it had been too high to permit passage of a bulk feed cart which he used in connection with the grinding operation; consequently, a lower stop was installed. However, with the stop removed, the sliding doors, when closed, “swung in” at right angles to the track on which they were mounted. In any event, as we have noted, the doors had been in the condition in which plaintiff found them on the day of the accident for several years, and Mr. Anderson said that he had visited the premises regularly, “every ten days or two weeks,” for sixteen or seventeen years prior to his injury. Plaintiff testified that he was familiar with this type of sliding door because he had several of them “at home,” but he considered that such doors would be solid and “in the slot at the bottom.” There is no contention that the doorway covered by the sliding doors was regularly used as a means of entrance or exit from the building itself; rather, the evidence shows that the platform was ordinarily used simply as a loading dock.

Mr. Anderson testified that on February 9, 1963, he went to the defendant’s establishment “to get some calf feed and some hog feed ground.” Arriving “around eleven or a little after eleven o’clock [A.M.],” plaintiff drove first to the scales where the defendant weighed his truck. Plaintiff asked to exchange some ear corn for shell corn, and the defendant agreed. Mr. Anderson then went to a nearby “corn crib” and unloaded approximately half of his load. In the process, he removed the tail gate from his truck and placed it in the bed of the vehicle. Mr. Anderson then drove his truck back to the grain pit, parking the rear of his vehicle above and slightly over the grate so the rear of the bed of his truck was level with and “two feet or a little better” away from the floor of the dock. Plaintiff testified that although the doors had always been open before, or had been opened by defendant’s employees before he finished unloading, they were closed and remained so on this occasion.

After he parked his truck, plaintiff climbed into the bed of the vehicle and unloaded his corn into the grain pit. It was then plaintiff’s intention to get out of the bed of his truck, go around to the scales for another weight, and pick up his load of mixed feed at the south side of the elevator. Ordinarily, in dismounting from his truck, that is, when the sliding doors were open, plaintiff “reached down * * * put my hands on the floor of the elevator, my left hand on the floor of the elevator, my right hand on the floor of the truck, lowering] myself down over this grate onto the grate and go around and get into the cab.” On this occasion, since the doors were closed, the plaintiff took what seemed to him the easiest and safest way to get down, and “ * * * squatted down in the back to get out, it was quite a little ways on down to the floor of the elevator where this little ledge was that was solid, so I reached out for a little bit of support against the door and when I touched the door, it just swung away from me,” “quite a little ways.” Plaintiff “went out head first,” and sustained the injuries of which he complains.

Plaintiff also had evidence designed or intended to show that the ordinary and usual way for a customer to dismount from a truck, after dumping grain into the grain pit, was to get out the back of his truck. The force and effect of this evidence is in dispute, and we shall return to it in the course of the opinion.

On this appeal, the parties have briefed and vigorously argued a number of points, but in the view we take of the case it is necessary to consider only the defendant’s assignment that plaintiff made no submissible case. Specifically, the defendant’s point is that he was not liable, inasmuch as the plaintiff was using the premises (the sliding doors) for a purpose other than that for which they were intended and in a manner which could not reasonably have been anticipated. We do not understand the plaintiff to contend that the sliding doors were unsafe for use as doors, nor is there any evidence tending to support such a contention; the plaintiff’s theory of submission, as we understand it, and concisely put, was that the defendant should reasonably have anticipated that plaintiff would use the sliding doors as a means of support in getting off his truck, and that defendant was negligent in failing to make the doors reasonably safe for that purpose. Since the question whether a submissible case was made is inherent in every appeal, we proceed to a consideration of that question, reviewing the evidence in a light most favorable to the plaintiff and giving him the benefit of all inferences reasonably to be drawn therefrom. Kettler v. Hampton, Mo., 365 S.W.2d 518, 521 [1]; King v. Ellis, Mo., 359 S.W.2d 685, 687 [1].

As the respondent correctly contends, the broad principle governing this appeal is not in dispute. The evidence establishes that the plaintiff was on defendant’s premises as an invitee or business visitor; the applicable substantive law is that “a possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to enter or remain upon the land without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to give a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive, if the possessor is a public utility.” As the respondent reminds us, this is the rule laid down in the first Restatement of Torts, and it is firmly established as the law in this jurisdiction. The problem, however, in all these premises liability cases is to determine “whether the facts and circumstances of the occurrence in question reasonably fit into the pattern of the rule as it has been established in Missouri.” Wilkins v. Allied Stores of Missouri, supra, 308 S.W.2d at 628. The owner or occupant is not an insurer of the safety of his invitee, and liability does not result alone from (1) ownership or occupancy, (2) invitation, express or implied, and (3) injury. Gruetzemacher v. Billings, Mo., 348 S.W.2d 952, 957 [4]; Lindquist v. S. S. Kresge Co., 345 Mo. 849, 853-854, 136 S.W.2d 303, 305 [1-3]. The owner’s or occupant’s liability for injuries not intentionally inflicted must be predicated upon negligence, that is, upon what should reasonably have been anticipated, rather than what actually happened. Gruetzemacher v. Billings, supra, 348 S.W.2d at 957 [3]; McCollum v. Winnwood Amusement Co., 332 Mo. 779, 787, 59 S.W.2d 693, 697 [5, 6]; Hammontree v. Edison Bros. Stores, Mo.App., 270 S.W.2d 117, 126 [14]. In this particular instance, the defendant’s maintenance of the sliding doors was not in itself an act of negligence, Hammontree v. Edison Bros. Stores, supra, 270 S.W.2d at 127 [16]; Anno., 16 A.L.R.2d 1161, 1163-1164, Section 2 (1951), and as the appellant maintains, the use of property for purposes for which it was not designed or intended, and the use of property by an invitee for purposes to which the owner or occupant could not reasonably have anticipated it would be put, imposes no liability upon the owner or occupant, except when the owner or occupant is present and actively co-operates with the invitee in the particular use of the premises. It was incumbent upon the plaintiff in this case to show not only that his entry upon the premises was at the owner’s invitation, but also that when he received his injury he was on a part of the premises which he was invited to use, and was using them in a manner authorized by the invitation, whether express or implied. Gruetzemacher v. Billings, supra, 348 S.W.2d at 958; Glaser v. Rothschild, 221 Mo. 180, 189-190, 120 S.W. 1, 4, 22 L.R.A.,N.S., 1045, 1049. In oral argument before the court both parties concede, and we believe, that the essential meritorious question on this appeal is whether the evidence, taken most favorably to plaintiff, show's that his use of the sliding doors as a means of assistance in dismounting from his truck was a use of the premises which defendant should reasonably have anticipated.

Before we consider plaintiff’s evidence bearing on this question, we should note certain other aspects of the case which, in our view, distinguish it from those cases involving swinging or revolving doors used as such, and from those cases involving a customer’s entrance in or exit from the in-vitor’s premises. As we have indicated, there is no evidence upon the record before us and, as we understand the parties, no contention that the sliding doors, used as such, were unsafe. The case is therefore not really comparable to such cases as Hammontree v. Edison Bros. Stores, supra, 270 S.W.2d 117, upon which plaintiff relies, and other “swinging door” cases, e. g., Morelock v. De Graw, 234 Mo.App. 303, 112 S.W.2d 126, and Boyle v. Neisner Bros., 230 Mo.App. 90, 87 S.W.2d 227, in which the real matter at issue was whether the doors created a potential hazard in normal use. Nor is the situation at hand comparable to those cases dealing with unsafe entrance ways or exits, for the plaintiff was not trying to gain access to the grain elevator itself; the “egress” of which plaintiff speaks here was “egress” from his truck to the ground. In short, the essence of plaintiff’s claim is that defendant was bound to foresee or anticipate a potential hazard from customers’ use of the sliding doors in the process of dismounting from their trucks, because such practice was usual and customary, even though it was a use of the premises for which they were not designed or intended.

Plaintiff’s evidence bearing on this aspect of the case came from several witnesses. Mr. Anderson himself testified that, in all the time he had been dealing with the defendant, he “had never remembered of them [the sliding doors] being closed and staying closed until I had finished unloading feed.” The usual way the plaintiff dismounted was to “ * * * [reach] down and when the doors were open, put my hands on the floor of the elevator * * * my right hand on the floor of the truck, lower myself down over this grate onto the grate and go around and get into the cab.” Plaintiff had seen “many” people “get out the back” of their trucks, but had also “seen them get out different ways.” Mr. Anderson also testified that it was possible for a customer using defendant’s grain pit to descend in a number of other ways. Mr. Anderson could have gone out over the side of his truck, but did not often do so with the end gate out because “the sides flop back and forth.” He could have sat down on the bed of his truck to dismount, in which case his feet would have been “a foot to eighteen inches” above the grate. Plaintiff simply chose the method of descent he used because he considered it to be the “safest” way. The plaintiff also introduced in evidence the answer to a written interrogatory, which indicated that a customer’s usual method of exit from the back of his truck was “over the side of the truck or off the back of the truck.”

Along this same line, Mr. Lawrence Fox, a former employee of defendant who had installed the sliding doors, testified:

“Q. Do you know how the customers generally got off their trucks after they got through unloading their grain there?
A. Well, the procedure was either step inside there or—
Q. Across the opening through the door when it was open?
A. Yes. —or down on the grate or on off the side. On the side of the truck it’s quite a step and usually a fellow would go to the back and get down.
Q. Go off the back down onto the grate ?
A. Yes.
Q. That was the usual and normal method of egress from the truck. That’s all.”

On cross-examination, Mr. Fox testified:

“Q. And customers got in and out of the truck bed in all different manners, didn’t they?
A. Yes.
Q. Over the side, over the top of the load, every which way, didn’t they?
A. Yes, sir.
Q. And some of your customers have little running ladders extending down from the truck itself, don’t they, that they can step down on?
A. Well, no, that was seldom you ever saw one of those, if it was, it was a trailer hitch.
Q. But some of them did have that didn’t they?
A. Well, I think so.”

Mr. Walter Huber, a customer of defendant upon whose evidence the plaintiff places considerable emphasis, testified on direct examination:

“Q. I’ll ask you whether or not you had any — do you know how the customers normally get out of the back of the truck after they have unloaded their grain there ?
MR. MARTIN: If the Court please, this calls for a conclusion on the part of this witness. He can testify how he gets out.
Q. Have you see [sic] others get out of the truck?
THE COURT: Let the record show the objection is sustained as to how — the customary method of getting out.
Q. Have you seen other people get out of their trucks there?
A. Yes, I have.
Q. About how many people have you seen get out of their trucks after they unloaded their grain?
A. That would be a hard question to answer.
Q. Many or few?
A. I’ve seen several — quite a few.
Q. Of those that you have observed, what would be the usual method by which they would get out of their truck after they had unloaded their grain ?
MR. MARTIN: If the Court please, I object to what the usual — .
THE COURT: The objection will be sustained.
Q. All right. Tell the different ways that you have seen people get out of their trucks after unloading the grain.
A. The most — I’d say most of them get out the back.
Q. All right. You have seen them get out in other ways?
A. Yes.”

We have no doubt that an owner’s or occupant’s liability to his business invitee depends on circumstances, and that customary use of an invitor’s premises in a manner or for a use for which they were not originally designed or intended may enlarge the scope of the owner’s or occupant’s duty, provided he has actual or constructive notice of such customary use. As we read it, Streicher v. Mercantile Trust Co., Mo., 31 S.W.2d 1065, upon which the plaintiff relies, is simply an application of that principle. In that case, the plaintiff was making a use of the premises for which they were not designed or intended; instead of using a ladder to apply a coat of paint, the plaintiff stood upon the window sill and supported himself by holding onto the sash. He was injured when the sash gave way, but there was evidence to show that this method of work was customary with experienced painters, that defendant had at least constructive knowledge of the plaintiff’s use of the sill as a means of support, and that the defendant knew or should have known of the defective condition of the sill.

There is no such showing in the instant case. Granting for the sake of argument that defendant’s duty might have been enlarged to require the provision of safe support for customers dismounting from their trucks if there were evidence that customers ordinarily used the building in the process of alighting from their vehicles, no such evidence appears on this record. Plaintiff himself had never before dismounted from his truck with the doors closed, and in effect he testified only to his own choice of the safest method of descent. The evidence given by Mr. Fox and Mr. Huber, upon which plaintiff relies, merely shows in sum that customers usually got out the back or over the side of their trucks. As defendant points out, there is scarcely any other way to dismount, and we find ourselves unable to resolve this testimony into evidence that defendant’s building was customarily involved when a customer got off his truck. To extend the defendant’s duty to the point of requiring him to furnish a safe support for customers dismounting’at his grain pit would require him to foresee a hazard which, under the evidence, was not reasonably to be anticipated, and for this reason we believe the plaintiff failed to make a submissible case.

For the reasons indicated, the judgment is reversed and the cause is remanded with directions to enter a judgment for the defendant.

STONE, P. J., concurs.

TITUS, J., took no part in the consideration or decision of this case.

      . Gibbs v. Bardahl Oil Co., Mo., 331 S.W.2d 614, 620 [1]; Hart v. Midkiff, Mo., 321 S.W.2d 600, 505 [4]; Lilly v. Boswell, 362 Mo. 444, 454, 242 S.W.2d 73, 77; and see Millar v. Berg, Mo., 316 S.W.2d 499, 502-503 [3].

      . Wilkins v. Allied Stores of Missouri, Mo., 308 S.W.2d 623, 628 [3]; Dean v. Safeway Stores, Mo., 300 S.W.2d 431, 432; Devine v. Kroger Grocery and Baking Co., 349 Mo. 621, 633, 162 S.W.2d 813, 818 [8]; Restatement, Torts, § 343, pp. 938-939 (1934).

      . Gruetzemacher v. Billings, supra, 348 S.W.2d at 959; Leenders v. California Hawaiian Sugar Refining Corp., 59 Cal.App.2d 752, 139 P.2d 987, 989-990 [2,3]; Edwards v. Johnson, Ky., 306 S.W.2d 845, 848 [8]; Cupita v. Carmel Country Club, Inc., 252 N.C. 346, 113 S.E.2d 712, 715 [6]; Parsons v. Drake, 347 Pa. 247, 32 A.2d 27, 30 [9]; 65 C.J.S. Negligence § 63(52), pp. 756-757 ; 38 Am.Jur. Negligence, § 101, p. 762. See also Anno., 30 A.L.R. 1390 (1924).

      . Glaser v. Rothschild, supra, 221 Mo. at 186, 120 S.W. at 3, 22 L.R.A.,N.S., at 1047; Trautloff v. Dannen Mills, Mo.App., 316 S.W.2d 866, 874 [11]; Smith v. August A. Busch Co. of Mass., 329 Mass. 615, 109 N.E.2d 843, 846; Eklund v. Kapetas, 216 Minn. 79, 11 N.W.2d 805, 807 [4]; see also Denison v. Wiese, 251 Iowa 770, 102 N.W.2d 671, 675 [10}; 65A C.J.S. Negligence, § 233, p. 643.


source: Caselaw Access Project

author: COTTEY, Special Judge.

license: Public Domain

text:
    Fredrick C. MITCHELL and Floyd D. Driver, Plaintiffs-Respondents, v. CITY OF SPRINGFIELD, Missouri, and E. L. Anderson, Sam Robards, Charles Upp, Vic Rohrer, H. C. Boehm, Paul Brookshire and Charles Hicks, as members of the Board of Trustees of the Policemen’s and Firemen’s Retirement Fund of the City of Springfield, Missouri, Defendants-Appellants.
    No. 8577.
    Springfield Court of Appeals. Missouri.
    Nov. 14, 1966.
    Motion for Rehearing or to Transfer Denied Dec. 14, 1966.
    Application to Transfer Denied Feb. 13, 1967.

      Don G. Busch, Springfield, for defendants-appellants.
    Benjamin J. Francka, Springfield, for plaintiff s-respondents.
   COTTEY, Special Judge.

The City of Springfield has by ordinance adopted a policemen’s and firemen’s retirement plan which makes available two types of pensions for members who are retired for disability: 1st, a “non-duty disability” pension, under which one-half the member’s average annual salary is payable to him if his disablement is “not the direct result of occupational duties”; and 2nd, a “duty disability” pension, under which two-thirds of his salary shall be paid him if he is “disabled as the direct result of occupational duties, including but not limited to accidents and/or hazards peculiar to the employment.” The ordinance vests “exclusive jurisdiction of all retirement claims” in a Board of Trustees consisting of the mayor and three members each from the Fire Department and the Police Department. The decisions of the Board are “subject to review by writ of certiorari,” and that method was followed in the case before us; but the extent of the review is governed by V.A.M.S. Chapter 536. State ex rel. Police Retirement System of City of St. Louis v. Murphy, 359 Mo. 854, 224 S.W.2d 68, 72.

In the winter of 1963 respondents Driver, 44, and Mitchell, 45, veteran members of the Fire Department, were found to be totally and permanently disabled from heart ailments. Both applied for duty disability pensions. Both were directed to submit to examination by a panel of physicians appointed by the Board pursuant to the provisions of the ordinance, and both did so. The findings and conclusions of the examining physicians were substantially alike in both cases. On the basis of the physicians’ reports the Board, without a hearing, denied duty disability pensions but awarded non-duty disability pensions to both men. Both thereupon demanded, and ultimately obtained, a hearing before the Board on the question of their entitlement to the larger pension. Their claims were consolidated and heard together, and both were again denied. On certiorari to the circuit court some additional testimony was taken, not germane to the immediate discussion, and a judgment was entered reversing the Board’s decision and remanding the case with instructions to award the duty disability pensions. From that judgment the Board appeals. The issues fall under four main heads and require us, 1st, to examine the purpose and scope of the plan, 2nd, to review the evidence touching respondents’ claims, 3rd, to consider the effect of the Board’s precedents in similar cases, and 4th, to determine whether respondents were accorded a fair hearing before the Board. Of these, in order.

It has generally been held with regard to plans of this kind that by contrasting disabilities which are “not the direct result of occupational duties” with those which are, a purpose is disclosed to distinguish the two in a very material particular, viz., as to their cause, and by this method to afford, in the first instance, a benefit in the nature of ordinary health and accident insurance to every member who, during the term of his service, loses his health from any of “the thousand natural shocks that flesh is heir to,” but, in the second, to reserve the more substantial pension for him who sacrifices his health in the public interest and who, on that account, is the more meritorious object of public concern. But as the benefit is larger, so the burden of establishing entitlement to it is greater; for whereas in the first instance the claimant has only to prove that he is permanently and totally disabled, in the second he must go a step farther and show a direct causal connection between his duties and his disability, or, as one case puts it, that his disability “occurred because he was a fireman rather than merely while he was a fireman.” State ex rel. Johnson v. Board of Trustees of Firemen’s Pension Fund of City of Madison, 170 Wis. 154, 174 N.W. 465; State ex rel. King v. Board of Trustees of Firemen’s Pension Fund of Kansas City, 192 Mo.App. 583, 184 S.W. 929, 932; Board of Firemen’s Relief & Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 182, 27 A.L.R.2d 965; Police Commissioner of Baltimore City v. King, 219 Md. 127, 148 A.2d 562, 565; Renz v. Hibbing Firemen’s Relief Ass’n, 186 Minn. 370, 243 N.W. 713, 714-715; annotation 27 A.L.R.2d 974, 978 et seq. The language of the ordinance, however, does not require the victim’s duties to be the “sole cause” of his disability, but only that his disability be the “direct result” of his duties. Those terms are not synonymous. Whatever is the product of two or more concurrent and contributing causes is the direct result of each, though neither is the sole cause. Fawkes v. National Refining Co., 341 Mo. 630, 108 S.W.2d 7, 11. It follows, in our opinion and as respondents contend, that aggravation of an existing physical condition, to the point where the condition is rendered disabling, may entitle the victim to a duty disability pension if, but only if, the aggravation itself is shown to have been “the direct result of occupational duties.” In such a case the chain of causation remains intact, linking the disablement with the duties that conduced to it. McQuillin, Municipal Corporations, § 12.149, p. 633. Having established that as the point of view from which the evidence ought to be examined, we turn to the evidence itself.

At the hearing before the Board respondents gave detailed accounts of the physical stress and mental strain, of the danger, tension and exhaustion, to which they had regularly been subjected in the performance of their duties over the years. Both gave histories of noticing some loss of stamina, of feeling “sluggish” and “slowing down,” for a period of about two years before their retirement, and of episodes of chest pains at intervals during the latter part of that period. The last such experience, in Driver’s case, occurred while he was washing a truck on the final day of his active service; in Mitchell’s while he was watching television in the station house on the last day of his actual service. Both men had been medically examined during the period of their service, but no evidence of heart trouble had been found prior to their retirement.

It was established by the reports of the examining physicians, as supplemented by their testimony, that Driver and Mitchell were both disabled from myocardial in-farctions which were the end product, in Driver’s case, of atherosclerosis, and in Mitchell’s, of arteriosclerosis. Both ailments are commonly known as hardening of the arteries, the former affecting the larger vessels, the latter the smaller. In their progress and effect they are substantially identical; each is characterized by a diminution of the elasticity of the vessel walls, by the gradual formation of a scaly deposit on the interior of the walls, and, in consequence, by an obstructed passage and a diminished supply of oxygen-carrying blood to the heart muscle. The exact cause of the “disease” is unknown, “but the current feeling is that this is related to the amount of fats taken in the diet.” It is, in any event, “a gradual process that covers a period of time.” The infarction to which it so frequently leads may occur “during or after severe exercise,” or, on the other hand, simply “upon hearing bad news,” or even while the sufferer “is asleep.” “Exertion isn’t necessary” to produce it; in fact, “exercise does not appear to be a factor in the overall figures, so that a group of acrobats and a group of office workers will have roughly the same incidence of myocardial infarction in the United States.” It was the opinion of these physicians that Driver’s condition was, “in all probability, not related to his occupation,” and that it cannot be said “that his occupation was an aggravating cause.” Of Mitchell’s condition they said, “it is not an occupational disease and in this incident was not precipitated or aggravated by accident”; that “it would have occurred regardless of what occupation he performed.” And of both, “I doubt that we can call either of these patients disabled on the basis of a duty connected disability.”

The only other witness was a Dr. Skol-nick who had written several articles on the occupational diseases of firemen, a subject in which he had interested himself “as a hobby, not as a livelihood.” He had not examined respondents. By listening to the testimony, however, he had acquired a sufficient grasp of the problem to form some very definite conclusions on it. He gave the Board the benefit of them. He deprecated the “vague conclusions” of the examining physicians as “to the cause of the disabilities of the firemen involved today,” because they left the subject “in a state of confusion.” It was “an unnecessary state * * * the disease is unimportant.” To require respondents to prove the cause of their disability would be to “punish two men who were firefighters” and who had “developed a problem.” Such an approach would be “inhuman in many ways.” The real issue before the Board was simply this, “Have they been firefighters, are they able to stay firefighters?” That was “all the question involved”; and it was “a legal problem, not a medical problem.” He qualified himself to discuss that aspect of it by declaring, “I know all the laws, I have helped make many of them.” The Board was only being asked “to fulfill the obligations that the people have put on the books for the purpose of helping those who have been hurt trying to help us.” “Your voters have given you a blank check,” he explained, “give it to those who deserve it.” And in determining the question of deserts, “Your conscience has to vote.” Against that background he was asked whether, in his opinion, “the sum total of all these men’s duties and activities as firemen were the factors that led up to the disability?” In gallant disregard of caution he replied, “The answer is so undoubtedly yes, if you asked it backwards, in reverse, it would even give it the same emphasis. Had these two men not been firefighters they would not have had these heart diseases. And, gentlemen, we just said heart disease as only a convenience. It could have been T. B.”

Respondents insist the record “re-, quired” the Board to grant them duty disability pensions — presumably as a matter of law, since it “involved only the application of the law to the facts.” The hopes entertained for that proposition are more sanguine than the rules of review will allow. The sober truth is that the issue of causation, whether related to the onset of the ailment or to its aggravation, never really took shape, unless in the lively imagination of Dr. Skolnick. And even if his conclusion be regarded as a medical opinion, instead of an effusion of social philosophy, it was insufficient to carry the point as a matter of law. Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345, 346. It is perfectly clear that there was “competent and substantial evidence” to support the Board’s decision. We may inquire no further. V.A.M.S. § 536.140, subsec. 2(3); State ex rel. Bond v. Simmons, Mo.App., 299 S.W.2d 540, 542, 545.

The third point for consideration arises on these facts: Since the adoption of the ordinance, five other firemen have been retired for disabling heart ailments. In each case, on the basis of medical reports substantially similar to those made by the examiners in this case, the Board, without a hearing, awarded duty disability pensions. Respondents take the position that, by those five precedents, the Board construed the ordinance as authorizing duty disability pensions in cases of this kind and adopted a policy of awarding them in conformity with that construction; that the Board is bound by that policy, and its refusal to follow it in this case was arbitrary, discriminatory and whimsical. We have been unable to find any law to sustain that proposition. It apparently proceeds upon the assumption that the doctrine of stare decisis applies to administrative tribunals. But the law is exactly the contrary: “administrative bodies are not ordinarily bound by their prior determinations or the principles or policies on which they are based.” 73 C.J.S. Public Administrative Bodies and Procedure § 148, p. 482; State Airlines, Inc. v. Civil Aeronautics Bd., 84 U.S.App.D.C. 374, 174 F.2d 510; annotation 79 A.L.R.2d 1126, 1135 et seq. Logic sustains the rule. Were it otherwise, the substantive law which the agency was set up to administer, and which it must necessarily construe in making its judicial determinations, would stand amended by every mistaken interpretation that might be put upon it, its scope distorted and its purpose subverted by a succession of errors which not even the agency itself would afterwards be allowed to correct. If a policy has been erroneously adopted, the ends of justice will hardly be served by compounding the offense and perpetuating the error. The case at hand is an example in point. If the Board in its five mentioned precedents construed the ordinance as making no requirement of causal connection, then on that point of law it was in error. And if, on the other hand, it treated the medical reports as establishing causal connection, then on that point of fact it was in error. But is a bad precedent necessarily to be followed by the abuse of it ? We think not. We are admonished by impeccable authority to repent our sins and reform our errors, and we know of no principle on which the benefit of that advice can be denied to administrative agencies. One familiar with more venerable precedents may find an analogy between the case at hand and that of the sheep that was lost and returned to the fold. At any rate, the action of the Board in turning from the path of error and resuming its role of responsibility will receive no criticism from us.

Finally, it is charged that respondents were denied a fair hearing before the Board because some of its members allowed themselves to be prejudicially influenced in their deliberations by preconceived notions and considerations that ought not have been countenanced; hence, that on this ground the trial court’s reversal of the Board’s decision was proper. No “timely protest” was made to the Board on that account, as was the case in In re Weston Benefit Assessment Special Road Dist. of Platte County, Mo.App., 294 S.W.2d 353, nor are we able to determine with assurance that the complaint supplied one of the grounds for the trial court’s judgment. But in the same state of the record the question was considered and the decision of the administrative agency reversed in Jones v. State Dept. of Public Health and Welfare, Mo.App., 354 S.W.2d 37, and for the reasons there assigned we think it proper to consider it here.

Respondents laid the charge of prejudice in their petition for certiorari, and the circuit court held a hearing de novo on that issue. At the hearing, respondents were permitted to produce two members of the Board and two bystanders, all firemen, who testified on direct examination that they had been present at, and had either taken part in or overheard, a discussion between several members of the Board immediately after the vote had been taken on respondents’ claim. The gist of their several versions of that discussion was that in the course of it two members, Officers Robards and Rohrer of the Police Department, had made statements to the effect that they “weren’t against the men receiving the pension,” but that “they could not afford to put every man with a heart condition on a duty disability pension” because it would “bankrupt” the fund; further, that “a man should be performing an act of duty * * * not sitting in a chair, but performing some function of firefighting” before he would be eligible for a duty disability pension on account of a disabling heart ailment. On cross-examination it came to light that discussions of this nature were a rather frequent occurrence among Board members; that the members from the Police Department were committed to the view ascribed to Officers Robards and Rohrer; but, on the other hand, that the Fire Department members were of one mind on the proposition “that firemen get heart attacks more than other people” and, “therefore, they should get duty disability pensions when they have heart attacks”; that “if a fireman has been with the force, say ten years, and has a heart attack, he is automatically entitled to a duty disability pension, * * * that’s the way the pension plan was drawn up.” For several reasons we think the trial court was not warranted in overturning the Board’s decision on that evidence.

In the first place, we are of the opinion that none of it should have been received. There is no more reason for permitting the decision of an administrative tribunal to be impeached by the members’ disclosure of the considerations that entered into it than there is for allowing jury verdicts to be set aside on the testimony of those who return them. The same considerations of practicality and public policy that inhibit such disclosures in the latter instance are equally present and compelling in the former; and they should apply as well to those who did not concur in the result as to those who did. Evans v. Klusmeyer, 301 Mo. 352, 256 S.W. 1036, 1040. The subject is discussed with convincing logic in National Labor Relations Board v. Botany Worsted Mills, Inc., 3 Cir., 106 F.2d 263, and we adopt the result there reached and approve the reasons assigned for it. The testimony of bystanders, it is true, has sometimes been put on a different footing; the logic or illogic of doing so in a given case is reflected in the examples cited in annotation 129 A.L.R. 803. But there is neither rule nor reason for drawing any distinction in this case. Here the bystanders testified only to what the Board members told them, or said in their presence, at a time when the Board was not engaged in the deliberation of its decision. To allow that evidence to be received at second-hand when it would be rejected at first-hand, and to overturn the Board’s decision on the strength of it, would be to do by indirection what is forbidden to be done by direction. The subterfuge has never been successful where statements made by jurors under like circumstances were offered to be shown by those who heard them, and we apply the same reasoning here. Meisch v. Sippy, 102 Mo.App. 559, 77 S.W. 141, 143; Herring v. Wabash R. Co., 80 Mo.App. 562, 569; Easley v. Missouri Pac. R. Co., 113 Mo. 236, 20 S.W. 1073, 1075; Green v. Terminal R. Ass’n of St. Louis, 211 Mo. 18, 109 S.W. 715, 719; State v. Lewkowitz, 265 Mo. 613, 178 S.W. 58, 63; Hoffman v. Dunham, Mo.App., 202 S.W. 429, 431; Banks v. Empire Dist. Electric Co., Mo.App., 4 S.W.2d 875, 880; Lightfoot v. Kurn, Mo.App., 164 S.W.2d 77, 79.

But supposing the evidence to be ■ fairly before us (because of the inept objection interposed to it in the trial court), what does it prove with regard to the charge of prejudice? It may be conceded that it would have been improper for the members to have decided the case on the basis of the views attributed to them. But how are we to know that they did so? We have no proof that they carried into the solemn deliberations of the Board the improper opinions expressed by them on other occasions, and entered them in the debate and allowed them to dictate the result in disregard of their duty and responsibility; and we may not assume they did so. Each member of the Board “is a public officer, and improper action on his part will not be presumed.” In re Moynihan, 332 Mo. 1022, 62 S.W.2d 410, 419, 91 A.L.R. 74. “As long as a man or a body of men fill any official position, the law presumes he or they will perform their duties whenever any matter is legally presented to them for action, notwithstanding general declarations previously made to the contrary.” State ex rel. Abbott v. Adcock, 225 Mo. 335, 124 S.W. 1100, 1108. The presumption in favor of the validity of administrative determinations “is, however, a strong one, and clear and convincing evidence is required to overcome it.” 73 C.J.S. Public Administrative Bodies and Procedure § 205, p. 558. To the same effect, see Dittmeier v. Missouri Real Estate Commission, Mo., 316 S.W.2d 1, 5-6, certiorari denied 358 U.S. 941, 79 S.Ct. 347, 3 L.Ed.2d 348; State ex rel. Murphy v. Burney, 269 Mo. 602, 191 S.W. 981, 983; State ex rel. Ball v. State Board of Health, 325 Mo. 41, 26 S.W.2d 773, 777; 31A C.J.S. Evidence § 146, p. 318 et seq. Where would there be any end to litigation if the rule were otherwise and verdicts and decisions, regular on their face, were allowed to be overturned by speculation as to the reasons that might have been advanced for reaching them? Judge Lamm summed up the sensible view: “Courts are organized to get practical and just results in the administration of law. Therefore, if the right thing be done (though a wrong reason be given for doing it), the thing itself may stand.” Green v. Terminal R. Ass’n of St. Louis, supra, 109 S.W. at 718.

Finally, it will not have gone unnoticed that the evidence before us, if it proves anything, proves that the members from the Fire Department were as avowedly in favor of awards in the circumstances of this case as the members from the Police Department were opposed to them. The bias of the one group is just as disqualifying as the prejudice of the other. Thus the Board is destroyed; only the mayor remains. But the Board is vested with “exclusive jurisdiction” to decide these claims; no substitution is authorized, no alternative is provided. In such a case it is said to be the general rule that the Board may discharge its duty notwithstanding the bias of its constituent members, for otherwise its business would be at a standstill. Annotation 39 A.L.R. 1476; 73 C.J.S. Public Administrative Bodies and Procedure § 62, pp. 389-390; Emerson v. Hughes, 117 Vt. 270, 90 A.2d 910, 34 A.L.R.2d 539, 550-551.

The decision was judicious and just; perhaps accidentally so, but nevertheless so. Where the end is proper, the means may be much indulged; and seldom with better reason than in the review of proceedings of a tribunal of laymen.

For the reasons stated, the judgment is reversed and the cause remanded with instructions to the trial court to reinstate the decision of the Board.

STONE, P. J., and HOGAN, J., concur.

TITUS, J., not participating because not a member of the Court when the cause was submitted.


author: CULLEN, Commissioner. STEWART, Judge

text:
    The FAYETTE COUNTY BOARD OF EDUCATION et al., Appellants, v. Russell WHITE, Appellee.
    Court of Appeals of Kentucky.
    Dec. 6, 1966.
    Dissenting Opinion Dec. 16, 1966.
    Rehearing Denied Feb. 10, 1967.
    Lasserre Bradley, B. L. Kessinger, Jr., Armand Angelucci, Lexington, for appellants.
    F. Selby Hurst, Lexington, Robert Matthews, Atty. Gen., Henri Mangeot, Asst. Atty. Gen., Frankfort, for appellee.
    Ben Fowler, Dailey & Fowler, Frankfort, White & Clark, Hopkinsville, for amicus curiae.
   CULLEN, Commissioner.

In this taxpayer’s class action judgment was entered which in effect held that the total tax rate of the Fayette County Board of Education for the school year 1966-67 (tax year 1966) could' not include more than 9.6 cents per $100 of assessed valuation as a special, voted, building fund levy. The board of education has appealed.

The 9.6-cent rate is the “compensating rate” as defined in KRS 132.010. The circuit court held that the school board was limited to that rate by the provisions of subsection (6) of KRS 160.477. The board maintains that it was entitled to exceed that rate, to meet rental payments in connection with revenue bond projects, by virtue of the exception set forth in subsection (7) of KRS 160.477. In order properly to understand and resolve the issue it is necessary to consider KRS 157.440 and 160.470 along with 160.477, particularly as they were affected by 1965 amendments.

The decision of this court in Russman v. Luckett, Ky., 391 S.W.2d 694, which in substance was that the Kentucky Constitution means what it says in requiring property to be assessed at fair cash value, gave rise to concern that local taxes might be increased inordinately by application of existing tax rates to full value assessments. The result was the calling in 1965 of a special session of the General Assembly, which enacted what has come to be known as “roll back” legislation, designed to cause adjustment of tax rates downward as assessments went up. Kentucky Acts, 1965 First Extraordinary Session, Chapter 2. Subject to certain exceptions, the basic provision of this legislation was that for the 1966 tax year and for subsequent tax years the tax rate should be such rate only as would produce approximately the same revenue as was produced in 1965. This was defined, in KRS 132.010, as the “compensating rate.”

The 1965 legislation included amendments to the three sections of the school law here-inbefore mentioned, KRS 157.440, 160.470 and 160.477, which relate to ad valorem taxes for school purposes. KRS 160.470 provides for the basic general fund levy which all school districts are authorized to levy; also it contains provisions governing budgets. KRS 157.440 authorizes an extra general fund levy if voted by the people. KRS 160.477 authorizes a special building fund levy if voted by the people.

Prior to the 1965 “roll back” legislation the Fayette County Board of Education was levying the basic general fund levy of $1.50, an extra, voted, general fund levy of $0.50, and a special, voted, building fund levy of $0.32. Under the 1965 legislation:

1.The basic general fund levy was required to be “rolled back” to a rate which would produce no more revenue than was produced from that tax in 1965, plus an allowance for assessment growth and with an option, after public hearing, to raise the rate so as to increase the revenue 10 percent. KRS 160.470. The Fay-ette County Board of Education exercised the option. The ultimate “rolled back” rate under this levy then was 49.1 cents per $100 of assessed valuation.
2. The voted extra general fund levy was required to be “rolled back” to the “compensating rate” as defined in KRS 132.010, with an exception which shall be discussed at a later point in this opinion. KRS 157.440. The Fayette County Board of Education did not attempt to assert applicability of the exception. The “rolled back” rate under this levy was limited to 14.9 cents per hundred.
3. The voted building fund levy was required to be “rolled back” the same as above noted for the voted extra general fund levy. KRS 160.477. However, as to this levy the Fayette County Board of Education asserted that the exception was applicable, so instead of accepting the “compensating rate,” which would amount to 9.6 cents per hundred, the board asked for a levy of 14.4 cents per hundred. This latter levy is the one that is in dispute in this lawsuit.

The question in issue is the proper interpretation of subsection (7) of KRS 160.-477, which subsection states the excepting circumstance under which a voted building fund levy may exceed the “compensating rate.” The language of the subsection is:

“(7) Notwithstanding the limitations contained in subsection (6) of this section [the limitation to the “compensating rate”] no tax rate shall be set lower than that necessary to provide such funds as are required to meet principal and interest payments on outstanding bonded indebtedness and payments of rentals in connection with any outstanding school revenue bonds issued under the provisions of KRS Chapter 162.”

In substance, the appellant board of education argues that the meaning of this subsection is that the special voted building fund levy is required to meet all bond and rental requirements, and if that levy at the “compensating rate” will not produce enough funds to meet all such requirements, then the rate shall be increased to the amount “necessary” (subject of course to the limitation that the rate cannot go above the actual number of cents per hundred voted). The appellee maintains, and the circuit court in effect held, that the meaning of the subsection is that if all of the different levies, together, authorized to be made by the school board, will not, at the “rolled back” rates, produce enough revenue to meet bond and rental requirements, then the rate of the special voted building fund levy may be increased above the “rolled back” rate.

The fact situation in the Fayette County School District is that the special voted building fund tax, at the “compensating rate,” will produce only around $780,000, whereas the rentals on revenue bond projects (the district has no voted bonds) will amount to around $1,168,000. This insufficiency of the building fund tax to meet the rental payments is nothing new — it has existed for years, and the fact is that no one ever expected that the building fund tax would or ever could meet all of the rental requirements. A substantial portion of the rental payments always has been paid out of the general fund revenues. However, the school board now maintains that the 1965 legislature intended to load all of these payments onto the building fund levy, thus in effect permitting an increase of several hundred thousand dollars in general fund expenditures.

The argument of the school board has some plausibility if KRS 160.477 is considered alone and in isolation. But when KRS 160.477 is considered with 157.440 and 160.-470, as it must be, the fallacy of the school board’s interpretation immediately becomes apparent. This is because all three of the sections contain substantially the same provision, which is not one newly fashioned to meet a problem created by the “roll back” legislation but is one that has been in the law for a number of years.

Subsection (3) of KRS 157.440, relating to a special voted general fund levy, contains exactly the same language as subsection (7) of KRS 160.477. Subsection (6) of KRS 160.470, which relates to the budget and the overall tax rate, states in substance that the overall tax rate must be enough to meet bond and rental requirements, and it states specifically that the budget otherwise shall not be approved. This latter provision has been in KRS 160.470 for a number of years; it is not something new added to meet “roll back” problems. It simply says that, out of the total tax revenues, bond and rental requirements must be met first and only what is left over can be used for other purposes. Actually, this is a budgeting matter and not a tax rate matter, because obviously no school board ever would seek to levy tax rates so low that the total revenues thus produced, if applied entirely to bond and rental payments, would not be enough for that purpose.

We think it is clear that the legislature, in subsection (3) of KRS 157.440 and in subsection (7) of KRS 160.477, simply was restating and reaffirming the proposition that bond and rental payments are to come first. We find nothing at all to indicate that the legislature intended that all of the bond and rental payments must come out of the building fund levy, or out of the extra voted general fund levy, or out of the basic general fund levy. The language that the “rate” has to be enough to meet bond and rental requirements is in all three sections, and none of the sections says that the tax provided for in that section has to carry the whole burden.

The school board argues that if subsection (7) does not have the meaning ascribed to it by the board it has no sensible meaning at all. The board says that as a practical matter the total tax rate never would or could produce insufficient revenue to meet bond and rental requirements alone. We agree that a situation in which such an insufficiency could arise would be abnormal, but we think the arising of such a situation is not impossible. Conceivably a disaster, or the taking over of a substantial amount of territory by the federal government, could so reduce the total assessable property in a school district that the “rolled back” tax rates would not bring in enough revenue to meet bond and rental requirements. It is perfectly reasonable for us to consider that the legislature was making provision for such an extraordinary situation, saying in effect that no matter what may happen, the bond and rental payments must be met.

Additional reasons why we cannot find acceptable the interpretation advanced by the school board are: (1) The interpretation goes contrary to the overall purpose and objective of the “roll back” legislation; (2) it would utilize a completely irrelevant factor for permitting a few school districts only to escape from the “roll back” limitations; and (3) as to voted bonds the interpretation would not be reasonable.

Our conclusion is that the judgment properly restricted the Fayette County Board of Education to the “compensating rate” in the building fund levy.

The judgment contains a clause directing that “the expense of retiring school building bonds be borne by the general fund and the special voted tax in the same ratio or proportion that the said two sources were subjected to satisfaction of said indebtedness in the year 1965 * * *.” (In 1965, although some $703,000 was produced by the building fund tax, only $472,552 of that amount was used to pay rentals on revenue bond projects; the remainder of the rentals, $643,883, was paid out of general fund receipts.) This provision of the judgment is inappropriate and erroneous, because it is directed to a budget problem which is not in issue.

To the extent that the judgment directs that the same ratio or proportion as in 1965 be continued with respect to apportionment of rentals between the general fund levy and the building fund levy it is reversed; in all other respects the judgment is affirmed.

STEWART, J., dissenting.

Opinion of

STEWART, Judge

(dissenting).

I dissent from the majority opinion because I do not place the same interpretation upon subsection (7) of KRS 160.477 as does that opinion. This subsection, among other things, deals with “payments of rentals in connection with any outstanding school revenue bonds issued” pursuant to KRS Chapter 162.

House Bill No. 1, Part II, Section 5, amended KRS 160.477. This amendment retained all of the old KRS 160.477 provisions and it added two subsections that I believe are dispositive of the question raised. The two subsections added to KRS 160.477 by House Bill No. 1 deal directly and specifically with the maximum rate which may be levied in lieu of the old voted rate in those school districts having a voted building fund tax. They are numbered (6) and (7). Subsection (6) of KRS 160.477 reads:

“Notwithstanding the provisions of any other subsection of this section to the contrary, for the 1966 tax year and for all subsequent years no district board of education shall request the levy of a rate under the provisions of this section which exceeds the compensating tax rate as defined in KRS 132.010, except as provided in subsection (7) of this section, and except that a rate which has been approved by the voters under this section but which was not levied by the district board of education in 1965 may be levied after it has been reduced to the compensating tax rate as defined in KRS 132.010.” (Emphasis added.)

A school district having a voted building fund tax must conform to the “compensating rate” unless it is excepted from that requirement by the provisions of the subsection (7). Subsection (7) reads:

“Notwithstanding the limitations contained in subsection (6) of this section no tax rate shall be set lower than that necessary to provide such funds as are required to meet principal and interest payments on outstanding bonded indebtedness and payments of rentals in connection with any outstanding school revenue bonds issued under the provisions of KRS Chapter 162.” (Emphasis added.)

Subsection (7) of KRS 160.477 in unmistakably clear langauge provides that a school district having a voted building fund tax, against which revenue bonds have been issued, is not limited to the “compensating rate” in fixing the special building fund rate. Subsection (7) expressly states that the rate shall be set at a figure (not to exceed the 32 cents rate voted by Fayette County) which will produce an amount sufficient to meet the yearly payments of principal and interest that will accrue on the outstanding bonds.

The majority opinion points out that the special voted building fund tax, at the “compensating rate,” will produce only $780,000, whereas the rentals necessary to retire revenue bond projects that existed before House Bill No. 1 was enacted amount to around $1,168,000. The majority opinion then makes this assertion: “ * * * the fact is that no one ever expected that the building fund tax would or ever could meet all of the rental requirements * * *. We find nothing at all to indicate that the legislature intended that all of the bond and rental payments must come out of the building fund levy, or out of the extra voted general fund levy, or out of the basic general fund levy.”

The simple answer to this argument is that if the unambiguous provisions of subsection (7) of KRS 160.477 do not set the maximum rate for a voted levy at the amount necessary to meet the yearly bond-payment requirements, irrespective of the “compensating rate,” then what possible meaning or application does it have? The majority opinion stands for the proposition that this subsection cannot be related to any conceivable school tax situation involving the payment of revenue bonds issued to construct school buildings.

I would reverse the judgment.

Chief Justice Palmore concurs in this dissenting opinion.


author: HILL, Judge.

text:
    John Raymond SHERLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 2, 1966.
    Rehearing Denied Feb. 10, 1967.

      John W. Coomes, New Castle, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for ap-pellee.
   HILL, Judge.

This appeal is from a judgment convicting appellant of a third violation of the local option liquor laws and fixing his punishment at one year in prison.

Preliminary to the right of appeal in criminal cases, it is required by RCr 12.52 that a notice of appeal be filed. This has not been done; therefore, this court will not entertain the appeal. Queener v. Commonwealth, Ky., 399 S.W.2d 485 (1966).

Notwithstanding the obstacle pointed out in the preceding paragraph, we have examined appellant’s brief, the facts, and the law applicable thereto and have concluded there is no merit to the grounds presented for reversal.

The attemped appeal is dismissed thereby affirming the judgment.


author: CULLEN, Commissioner.

text:
    KRETSCHMER’S HOUSE OF APPLIANCES, INC., Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Nov. 23, 1966.
    Rehearing Denied Feb. 10, 1967.

      B. C. Van Arsdale and Herbert Van Ars-dale, II, Louisville, for appellant.
    Fielden Woodward and Frank P. Doheny, Jr., Woodward, Hobson & Fulton, Louisville, for appellee.
   CULLEN, Commissioner.

. The question is whether the loss sustained by appellant appliance dealer by reason of the disappearance of several thousand dollars’ worth of new television sets from appellant’s warehouse is covered by qppellant’s “Special Multi-Peril Policy” with appellee insurance company. The circuit court said “no” and entered summary judgment for the insurer. The insured has appealed.

The policy contained this clause:

“M. Premises Burglary or Robbery: Loss by burglary shall cover the felonious abstraction of insured property * * * from within the premises by a person making felonious entry therein by actual force and violence as evidenced by visible marks made by tools, explosives, electricity or chemicals upon, or physical damage to premises at the place of entry, ⅜ * *»

We think the clause reasonably means that the necessary evidence of entry by force and violence may consist either of “visible marks” or of physical damage to the premises at the place of entry. The appellants here seek to recover on the “physical damage” theory.

The appellant’s warehouse door was secured by a padlock. The loss of the television sets was discovered after two of the appellant’s employes, who had been sent to the warehouse with some goods to be stored there, found that the regular padlock had been replaced by a strange one, which their keys would not fit. The simple issue in the case is whether this substitution of padlocks constituted physical damage to the premises evidencing an entry by force and violence.

We have no difficulty in concluding that the removal from the premises of the regular padlock which was a vital part of the protective system designed to prevent unauthorized entry to the warehouse, was “physical damage to the premises”. Cf. Bernard v. Employers Liability Assurance Corporation, 233 Ill.App. 229.

We think also that the removal of the original padlock and substitution of another warrants a reasonable inference (and therefore is evidence) that there was an entry by force and violence. Had the original padlock simply been left open by carelessness, or had the theft of the television sets been an “inside job” or been committed by a person who somehow had obtained a key to the padlock, there would have been no reason for the substitution of a new padlock. A reasonable inference is that the original padlock was opened by violence and force resulting in its being damaged, wherefore the felon substituted a different padlock to conceal from casual observation the fact that there had been a break-in.

The conclusions we have reached are entirely consistent, we think, with the purpose of the kind of clause here involved, which is to protect the insurer from what commonly are known as “inside jobs” and from the frauds that inevitably would result if some physical evidence of break-in were not required. See Annotation, 169 A.L.R. 224.

The judgment is reversed with directions for further proceedings consistent with this opinion.


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Roy W. GRAHAM et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 18, 1966.
    Rehearing Denied Feb. 10, 1967.
    Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort, Tildón H. McMasters, Elizabethtown, for appellant.
    Fred Faulkner, Jr., Faulkner & Bertram, Campbellsville, for appellees.
   WILLIAMS, Judge.

The appellees filed an action for damages before the Board of Claims against the Commonwealth of Kentucky, Department of Highways. The Board of Claims dismissed appellees’ claim but upon appeal the Taylor Circuit Court ruled that the board’s finding of fact did not support the dismissal. Motion for appeal was sustained in this court.

The Department of Highways was transporting a bulldozer loaded on a lowboy trailer through the city of Campbells-ville. The driver discovered he had taken the wrong road and attempted to turn the vehicle around and proceed in the opposite direction. At that point the highway is intersected by a side street and there is a slight curve extending in both directions from the intersection. Appellant’s driver was proceeding to back his vehicle across the highway and into the side street when appellees’ driver approached in a loaded milk truck over a slight hill 435 feet away. The milk truck driver testified he saw the Department of Highways vehicle when he was 300 feet from it and at that time it was blocking the entire road. He attempted to apply his brakes but found they would not function. To avoid striking the Department of Highways vehicle, the milk truck driver turned to his left into the side street and in so doing the truck overturned and was damaged.

The Board of Claims found that the driver of the Department of Highways vehicle was negligent in turning the vehicle in such a manner as to block the highway; that the milk truck driver was not guilty of contributory negligence, but “the proximate cause of the collision was not the negligence of the defendant (appellant) but rather the unforeseen and unforeseeable failure of the brakes of plaintiffs’ (appellees’) truck as it came over the hill, thus making it impossible for the driver of the latter truck to avoid the collision which he otherwise could have done.”

It has been held in many cases, notably Hines v. Westerfield, Ky., 254 S.W.2d 728 (1953), that a superseding cause relieves the original negligent actor from liability irrespective of whether the antecedent negligence was or was not a substantial factor in bringing about an injury. The difficulty, of course, is determining what was the proximate cause when there has been an intervening act between the original act of negligence and the resulting injury. If the original negligence is remote and only furnishes the occasion of the injury, it is not the proximate cause thereof. If a force intervenes between the original negligence and the injury but does not have the force of a superseding cause, then the proximate cause is the original act. It is a function of the courts to determine whether an intervening act is the superseding cause of an injury, thus relieving the original negligent actor from liability. The answer necessarily depends upon the factual situation in each case.

Here the Department of Highways driver negligently blocked the highway at a point 435 feet from the crest of a hill. It was shown the driver of the milk truck could have avoided the accident had his brakes been functioning properly. The question then is whether the Department of Highways driver could reasonably have foreseen, or whether a reasonable man could have foreseen, that this accident would occur as the result of his act.

Had the crest of the hill been in closer proximity to the street intersection, it probably would have been foreseeable that a vehicle might unexpectedly come over it and be unable to stop before an accident occurred. But we hardly think that it was foreseeable that a vehicle would be unable to stop or otherwise avoid an accident at the point where the appellant’s truck was being turned around. The distance from the intersection to the crest of the hill was more than adequate in which to stop a vehicle proceeding according to law. As a consequence, we are of the opinion that the Board of Claims correctly determined the proximate cause of the accident was not the negligence of the Department of Highways driver, and that a superseding cause relieved the appellant from liability.

The judgment is reversed.


text:
    Robert W. ROGERS, Appellant, v. DEPOSIT SERVICE CORPORATION, etc., Appellees.
    Court of Appeals of Kentucky.
    Jan. 27, 1967.
    Joseph Davis, Louisville, for appellant.
    S. Lloyd Cardwell, John K. Gordinier, Louisville, for appellees.
   HILL, Judge.

Appellant, Robert W. Rogers, prosecutes this appeal from the circuit court judgment affirming an award made by the Workmen’s Compensation Board fixing his permanent partial disability at 25 percent. He claims total permanent disability.

Rogers received injuries to his “back, leg and left arm” in a fall from a height of about ten feet onto a concrete floor from the top of a hogshead virtually filled with tobacco. He was placing the tobacco in the hogshead and then packing it down with his weight. He had been doing this work during the winter tobacco season for about fourteen years. At the time of his injury, he was forty-eight years of age and had been a farmer the greater part of his life. Although his formal education was meager, he could write his name. His duties required him to bend over from one hundred to two hundred times for each hogshead of tobacco he “packed,” and he “packed” from twenty-five to thirty hogsheads per day.

His injury occurred January 9, 1964. He was hospitalized from January 9 through January 19. He was in the hospital again from June 10 to June 15. During this time, he claimed to be paralyzed from the “waist down.” He was admitted to Jewish Hospital in Louisville, Kentucky, on June 29, 1964, and remained there until July 14, 1964. During this period, he was given a myelo-gram, and an exploratory operation which resulted in the performance of a laminec-tomy by Dr. Rudy J. Ellis and Dr. H. Lester Reed. The operation disclosed no observable trouble except that Rogers had “extra-dural veins which were rather larger than usual.” The report of the doctors performing this operation contained this notation, “There were tremendous extradural vari-cosities.”

An agreement was entered into between the parties and approved by the Board on February 4, 1964, covering an estimated period of disability of twenty weeks only, beginning July 17, 1964. Appellant did not recover from his injuries within this twenty-week period, and on joint motion of the parties and by order of the Workmen’s Compensation Board dated February 23, 1964, the claim was referred to a hearing officer for the taking of proof as to the extent and duration of appellant’s disability.

Appellant claims, and so testified, that since discharge from the hospital in July 1964, he has suffered serious pain and cannot perform the work he customarily did before his injuries. He is supported in this contention by the testimony of Dr. George McCrocklin, a highly respected orthopedic surgeon, who testified, with no reservation, that appellant was totally and permanently disabled from the injuries of which he complained.

Testifying for appellee Deposit Service 'Corporation were Dr. Ellis and Dr. Reed, presumably as well qualified, who were the doctors who performed the operation on appellant. They stated appellant’s disability was from 15 to 20 percent. On cross-examination, Dr. Reed increased his estimate of appellant’s disability to the “upper limit” of 25 percent, which figure was apparently accepted by the Board in its final award.

The testimony being in sharp conflict, the award will not be disturbed if supported by substantial evidence. Tyler-Couch Const. Co. v. Elmore, Ky., 264 S.W.2d 56, and Inland Steel Company v. Johnson, Ky., 336 S.W.2d 581. Appellant recognized the limitations of his right of appellate review but stoutly maintains that the evidence of Dr. McCrocklin on appellant’s behalf is “uncontradicted” by appellee’s medical witnesses and cites Sullivan v. Foster & Creighton Company, Ky., 394 S.W.2d 917 (1965). We do not so interpret the appellee’s evidence.

It is true that in Sullivan, supra, this court said evidence may be “non-committal and therefore of no probative value.” But we cannot apply that salutation to the evidence of Dr. Reed and Dr. Ellis. We quote from Dr. Reed’s deposition:

“I felt from a medical standpoint his recovery was sufficient for rating purposes, and Dr. Ellis and I discussed this and concluded 15 to 20 percent permanent partial disability would be reasonable and fair, secondary to his injury, operation and residuals of same, and I felt it would be desirable for him to work if he could.”
* ⅜ * * ⅜
“I would think he could probably do work of this sort. He would have discomfort in doing it, I believe, — at least as of the present time, as I know him, but I do believe he could do the work.”
“I believe he will get better.”
“I really don’t know what is causing this man’s pain except that he related it to having its onset after he was injured, and I presume that some aggravating factors of the injury started it off, but what is causing his pain, I really don’t know.”
“Well, I think when he does excessive heavy work over a long period of time he will be subjected to some local pain in his back and maybe in his leg.”
* * * * * *
“I would think it would be up to the man on that, (bending) I would think he could do a good bit of it.”
***** *
“I have seen people doing this kind of work described in the tobacco industry. I would think he could do this type of work with some discomfort. Again how much discomfort is problematical.”
***** *
“ * * * I wouldn’t know how many times he could go without breaking down, I really couldn’t answer this.”
***** *
“I think he could do this (usual type of work). I really don’t know how much of it he could do, without he would have the opportunity to do it, want to do it, need to do it, and all these various elements come into it. I really don’t know how much he could do this type of work.”
* * * * * *
“I might go so far as say might have 25% as the upper limit in this type of work, something in this vicinity. This has to be a matter of judgment. There is no set way I know to be able to come up with a figure.”

The evidence of Dr. Ellis is substantially the same as that of Dr. Reed. Hence we shall no further encumber this opinion by quoting from it.

We conclude the evidence presented to the Board on the extent of appellant’s disability was inconsistent and conflicting and thus presented a question of fact, the determination of which was and is under the universal rules of law left to the Workmen’s Compensation Board.

The judgment is affirmed.


author: WILLIAMS, Chief Justice.

text:
    Lee Thomas VANHOOSE and Robert Baldridge, Petitioners, v. Hon. W. D. SPARKS, Judge, Johnson Circuit Court, Paintsville, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Jan. 20, 1967.
    Lee Thomas Vanhoose, pro se.
    Robert Baldridge, pro se.
   WILLIAMS, Chief Justice.

Lee Thomas Vanhoose and Robert Bald-ridge, presently incarcerated in the penitentiary at Eddyville pursuant to a judgment of the Johnson Circuit Court, seek an order of mandamus requiring the Judge of the Johnson Circuit Court to order prepared the transcript of record on an RCr 11.42 motion which was overruled by that court.

Petitioners allege they have taken the proper steps to perfect an appeal from the judgment overruling their motion. Respondent has been notified of this proceeding and has made no response. The allegations of the petition consequently must be treated as confessed and the petition granted.

The petition for mandamus is granted, and the respondent is directed to cause a transcript of the record of the proceedings made under the RCr 11.42 motion to be filed with the Clerk of this court and a duplicate copy forwarded to petitioners.


author: PALMORE, Chief Justice.

text:
    Bobby Joe ROGERS, Appellant, v. Denton SULLIVAN, Appellee.
    Court of Appeals of Kentucky.
    Dec. 16, 1966.
    As Modified on Denial of Rehearing Feb. 10, 1967.

      Henry O. Whitlow, Waller, Threlkeld & Whitlow, Paducah, for appellant.
    Louis V. Mangrum, Mayfield, for ap-pellee.
   PALMORE, Chief Justice.

The appellee, Sullivan, sustained a dislocated right hip and right shoulder in a collision between an automobile driven by Rogers, the appellant, in which Sullivan was riding as a passenger, and a vehicle driven by one Perkins. His suit against Rogers and Perkins resulted in a $30,000 verdict and judgment against both defendants. Rogers appeals, asserting the following grounds:

1. Error in refusal to declare a mistrial.

2. Error in overruling objection to question asking medical witness to comment on the “possibilities or probabilities” of Sullivan’s complete recovery.

3. Erroneous instructions authorizing recovery for permanent impairment of earning power.

4. Excessiveness of the verdict.

During cross-examination by counsel for his co-defendant, Rogers was asked whether the investigating police officers had given him a citation, to which question the court sustained an objection but declined to declare a mistrial and admonished the jury “to disregard the question asked about whether there had been a citation issued because there is no proof in this case that there was any citation issued.”

It may be conceded that the question was improper. However, it was not answered, and we are not of the opinion that the mere asking of it was so prejudicial that it could not be or was not cured by the admonition.

Sullivan was treated immediately after the accident by Dr. Steele Robbins, a general practitioner of medicine at May-field, and was hospitalized for nine days following which he was discharged to go home and bed rest. One month later, when he returned to Dr. Robbins for a rechecking, it was discovered that the muscles of his shoulder had begun to atrophy. Suspecting a nerve injury, Dr. Robbins referred the patient to Dr. French, an orthopedic specialist in Paducah. Sullivan made 22 trips to Dr. French’s office for therapy treatments and, until the time of the trial, was taking prescribed exercises with the aid of his son. Five and one half months after the accident he was sent by Dr. French to Dr. William F. Meacham, an outstanding neurosurgeon at Vanderbilt University in Nashville, Tennessee, who observed “a paralysis of the deltoid and the scapular muscle groups on the right side * * * The examination revealed the rather typical sensory loss and the atrophy of the muscles supplied by the axillary circumflex nerve and its branches. This prevents the arm from being swung away from the trunk, and produces a shrinkage of the muscles around the shoulder joint and the shoulder blade, and prevents the arm from being raised or projected into positions where the hand can be utilized to the best advantage.”

Fifteen months after the accident (three weeks before the trial) Dr. Meacham again examined Sullivan and found his condition to be essentially the same except for “some evidence of regeneration of the function of the nerve in the deltoid and scapular muscle group.” He explained as follows:

“He is able to show some evidence of beginning muscle contraction. There is still the area of sensory loss over the apex of the shoulder. There is less atrophy than was present previously. And I think that these are encouraging findings in that these undoubtedly can only be explained by the fact that nerve function is gradually regenerating or recurring. It has not done so completely yet.”
Q “Doctor, at this time, would you be able to say with any degree of medical certainty as to when he would, if ever, get complete regeneration of that nervous system?”
A “Well, such nerve regenerations take place slowly and gradually — ordinarily into the period in some people approximating eighteen months, some others, much longer — some two to three years.”
Q “Based upon the fact that the progress has been what it has been at this time, would you be able to estimate with any degree of medical certainty when, and if, he might be considered to reach his maximum regeneration ?”
A “No. Not with accuracy. We can only say it is now taking place, and I don’t know how rapidly it will occur.”
Q “Doctor, taking into consideration his age, being fifty-two, isn’t it true that regeneration and readaptability is less than it would be in a younger person?”
A “Not as far as the nerve regeneration is concerned. It might be according to his motivation. But the nerve doesn’t know how old he is, and if it starts back, it will do it about as well as it will in a young person. If it don’t start back at all, young and old both remain permanent.”
Q “Well, taking into consideration the possibility of his completely recovering, what do you think his chances are for that at this time ?”
A “I couldn’t say — for this reason, Mr. Mangrum: When nerves start recovering, they have the potential to go on and completely recover. Some don’t, though. Some will recover fifty per cent and stop — I am talking about peripheral nerve injuries like Mr. Sullivan had — and some will go all the way, a hundred per cent.
“Now, it is to Mr. Sullivan’s advantage to continue the physical therapy exercises that his physicians have advised him to do because if recovery takes place and the muscles are not kept supple and in tone— and even though the nerve recovers, he has still got the disability of the shoulder. But now I find that he has been doing that. And I would feel that now his chances of a substantial recovery are good — although I can’t say when it will be completed or how far it will go.”
Q “And at this time, you wouldn’t want to say that the prospect of his complete recovery would be promising, is that correct ?”
A “No. I would want to say it, but I can’t and be accurate about it.”

At the trial, which took place nearly 16 months after the date of the injury, Sullivan testified that he was unable to raise his arm very far out and up from his body and that he was still suffering pain in his right hip, which aches when the weather is about to change. Dr. Robbins had re-examined him one week before the trial and, with respect to the right hip and leg, testified as follows:

Q “Did you measure his right leg?”
A “I did.”
Q “Is there still any presence of atrophy ?”
A “He had about three quarters inch smaller right thigh than he does left thigh and about half inch smaller calf of his leg. There’s no difference in the length of his leg.”
Q “Does this still indicate that he has weakened muscles in that leg?”
A “Yes.”
Q “Shriveling away.”
A “Yes.”
Q “Based on the fact that it has now been some sixteen months subsequent to the time he sustained this injury, and the presence of atrophy, what would you say his possibilities or probabilities with medical certainty would be for complete recovery on that right hip and right leg, considering his age?”
A “Now, Judge, I’m not qualified up here as an expert witness on this thing. I don’t think I should give an opinion on that thing. I’m not up here as an expert on prognosis on this case. I thought I was up here as an ordinary witness to state facts of what I saw and what I did for him.”
BY THE COURT: “You are here as a witness to tell what you know, if you know, or are able to express an opinion.”
BY MR. WHITLOW: “I don’t believe the question is in proper form. I don’t have any objection, but I don’t think it can be answered by the doctor in the form it was asked, just generally what the possibilities or probabilities are.”
BY THE COURT: “Are you objecting to the question?”
BY MR. WHITLOW: “I object to the question for that reason.”
BY THE COURT: “I see. Read the question.”
BY THE COURT REPORTER: “Based on the fact that it has now been some sixteen months subsequent to the time he sustained this injury and the presence of atrophy, what would you say his possibilities or probabilities with medical certainty would be for complete recovery on that right hip and right leg, considering his age ?”
BY THE COURT: “I think I’ll overrule the objection and let the doctor answer if he knows the answer to it.”
BY MR. WHITLOW: “In view of his statement that he doesn’t prefer to give an opinion, I don’t think he should be required to.”
BY THE COURT: “This is a question that comes before the Court many times. The doctor, I believe, doesn’t want to answer because he was subpoenaed as a witness and he feels that this is a matter for an expert. Of course, the doctor is an expert; he may not have specialized in these things; but, if he’s able to answer, let the doctor answer.”
A “I don’t expect after this length of time that he can recover fully from this injury that he sustained to his right hip— right hip and right shoulder.”

On the theory that permanent injuries must be established on the basis of reasonable certainty, it is contended for Rogers that the question relating to “possibilities or probabilities” was not competent. Cf. Ingram v. Galliher, Ky., 309 S.W.2d 763, 766, 767 (1958), in which it was remarked, “It is an established rule that to warrant a recovery for permanent injuries, the future effect of the injuries sustained must be shown with reasonable certainty. The evidence must be positive and satisfactory, although it need not conclusively show the condition to be permanent. So, a mere conjecture or even probability of lasting disability does not warrant recovery for permanent impairment of earning power.” Earlier decisions in which comparable terminology was employed are cited in that opinion. See also Townsend v. Stamper, Ky., 398 S.W.2d 45, 50 (1966). Such comments were directed, however, to the quality or degree of proof requisite to support a finding of permanent injury, and not to the form of question for eliciting a prognosis from an expert witness.

It is our view that in order for the jury to receive maximum enlightenment the medical witness must have considerable freedom in expressing a prognosis. Quite aside from the permanency of an injury, if at the time of trial the claimant has not fully recovered it becomes necessary for the jury to evaluate its future duration and effect. It seems to us that it would be proper simply to ask the witness for his opinion as to the prospects of recovery, and let him explain as he wishes. Cf. VII Wig-more on Evidence § 1976 (3d ed. 1940). The thing that counts is what he says; the question need only open the subj ect. Within this context the question now under review, though perhaps somewhat awkward, was not improper.

Dr. Robbins had been engaged in the general practice of medicine for 25 years. Though he disclaimed being an expert, and was not an expert in the sense of being a specialist, we agree with the trial court that he was qualified to express an opinion with respect to the prospect of Sullivan’s eventual recovery. His modesty does not impugn the competency or probative weight of his opinion.

We have adverted to the words "positive and satisfactory” and “reasonable certainty” as describing the quality of proof necessary to authorize recovery for permanent injury. The use of this particular terminology is not peculiar to personal injury cases, but is generally applicable to proof of compensatory damages. 22 Am. Jur.2d Damages § 22 (1965). And see, as an example, Western Union Telegraph Co. v. Ramsey, 261 Ky. 657, 88 S.W.2d 675, 677, 103 A.L.R. 541, 544 (1935). But these are relative terms only. “An analysis of the facts and holdings of the cases supports the conclusion that courts have used the term 'reasonable certainty’ to mean only that the fact of damages must be taken out of the area of speculation.” 22 Am.Jur.2d Damages § 22 (1965). In some cases we have used the words “reasonable probability” as a preferable expression. Gregorich v. Jones, Ky., 386 S.W.2d 955, 957 (1965); Herald v. Gross, Ky., 343 S.W.2d 831, 834 (1961). It is our view that a qualified opinion based on reasonable probability satisfies the requirement usually expressed as “reasonable certainty” and that Dr. Robbins’s opinion, especially in view of Sullivan’s condition 16 months after the accident, was sufficient to justify an instruction on permanent injury. To the extent our cases have suggested that testimony of a professional witness that there is a probability of permanency of injuries “is not the positive and satisfactory type of evidence required to take the case to the jury on that question,” cf. H. & S. Theatres Co. v. Hampton, 300 Ky. 677, 190 S.W.2d 39, 40 (1945), they are modified accordingly.

The court gave two instructions in the alternative on damages, one based on a finding of permanent impairment and the other on a finding that the injuries were not permanent. In addition to his contention that there was insufficient support for an instruction on permanent injury, appellant claims that the giving of two instructions unduly emphasized the issue of damages. However, this method of submission was expressly authorized in Louisville & N. R. Co. v. Lynch, 137 Ky. 696, 126 S.W. 362, 365 (1910). See Stanley’s Instructions to Juries, § 317. While it is our opinion that a single instruction along the lines of the example given in § 313 of Stanley’s Instructions to Juries would have been preferable, we cannot say the giving of two instructions was prejudicial.

Sullivan was 52 years of age. His occupation was that of a common laborer. He worked in tobacco bams in the winter and worked as a carpenter’s helper and painter in other seasons, earning $1.25 per hour. Though his medical expenses were less than $500, it will be recalled that the treatment of his injuries consists mostly of exercises taken at home. As of the time of the trial his earning power was destroyed. Dr. Meacham felt that his chances for a substantial recovery are good, but the evidence was amply sufficient to support a conclusion that he will never completely regain his ability to earn a living. As a matter of fact, upon the evidence as a whole it seems doubtful that he will ever be able to do any manual labor whatever. His pain and suffering, past and probable, are by no means minimal. The award of $30,000 does not strike us at first blush as being excessive.

The judgment is affirmed.