author: CROSS, Judge.

text:
    Jack TOOTLE, Appellant, v. Winifred W. TOOTLE, Respondent.
    No. 23709.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.
    Strop, Watkins, Maughmer & Roberts, St. Joseph, for appellant.

      Sprague, Wilcox & Houts, St. Joseph, for respondent.
   CROSS, Judge.

This is an appeal from an order of the trial court modifying the child custody and visitation provisions of a previously rendered and modified decree of divorce. The order permitted defendant-respondent, mother of two minor children involved, to take them out of the state to her residence in Michigan for a vacation visitation in the summer of 1962. Plaintiff-appellant, father of the children, has appealed.

Plaintiff and defendant were divorced on October 2, 1958, and plaintiff was awarded custody of their two minor children, a boy presently 8 years old, and a girl whose age is now 12 years. In general terms defendant was granted reasonable rights of visitation with the children. This court affirmed the decree of divorce and custody in Tootle v. Tootle, Mo.App., 329 S.W.2d 218.

On June 13, 1960, the trial court modified the original decree by specifically provid-, ing the time and place of defendant’s visitation with the children. Such privilege was limited to visits at defendant’s apartment home in St. Joseph, at a country club in Andrew County, and elsewhere in Buchanan County. The decree, as modified, further provided that “Defendant * * * shall have no right of visitation with said children, or with either of them, outside of the State of Missouri, and the defendant shall at no time cause to be taken or take said children, or either of them, outside of the State of Missouri”.

Since November of 1960, defendant has been regularly employed by a department store in Detroit, Michigan. She has been living in the home of her mother at Grosse Pointe Farms, Michigan. However, she has maintained the apartment in St. Joseph to which she has returned at rather frequent intervals for visitation with her children.

In March, 1961, defendant filed a motion in which she prayed the trial court to permit a reasonable summer vacation visitation of defendant and her minor children (in the year of 1961) “outside of the State of Missouri, at the home of her mother”. The motion was overruled by the trial court on May 19, 1961. The court also denied defendant’s motion for rehearing or a new trial. No appeal resulted.

Thereafter, and on February 9, 1962, defendant filed the motion that gave rise to this appeal. It alleges in substance that since November 7, 1960, she has had full time employment at a department store in Detroit, Michigan, that she has received promotions, that she has returned to St. Joseph for visits with her children, when her employment permitted, that her brother (who lives in Michigan) would be married the last part of July or the first of August, 1962, and that she would like to have her children present for the wedding. In her motion defendant prays the court to supplement its decree so as to permit the minor children to visit with her outside the State of Missouri, and that she be allowed to take them to the home of her mother in Michigan, for a summer (1962) vacation visit.

After hearing evidence, the trial court made findings in part as follows: “Now the Court finds that it is to the best interests of the minor children of the parties herein that the Motion for Summer Vacation Visitation be sustained and that said children should be permitted to visit the defendant in the home of defendant’s mother, Mrs. C. H. White, 49 Edgemere Road, Grosse Pointe Farms 36, Michigan. This visitation is also allowed so that said children may be present for the wedding of Ray White, who is a brother of the defendant”. * * * “It is also found by the Court that the visitation period should begin on the 20th day of July, 1962, and terminate on the 5th day of August, 1962”. On the basis of its findings, the trial court sustained the motion and entered an order permitting the children’s visit at the time and place specified in the findings we have quoted. However, the trial court specifically retained jurisdiction of the case and required by “suggestion” that defendant file an executed waiver of any right to attempt modification of the decree in any other court. The waiver contains her agreement to the sole and continued jurisdiction of the trial court. Plaintiff duly perfected his appeal.

In contending that the trial court erred by granting defendant the summer vacation visitation in Michigan, plaintiff amplifies two main assignments. The first point made is that it was error for the court to indulge in the “extremely hazardous experiment” of permitting the visitation by the children in the State of Michigan. Plaintiff argues that their mere temporary physical presence in Michigan would permit the courts of that state to award custody other than provided by the Missouri decree, and that it is against the policy of Missouri law, generally speaking, to permit removal of minor children affected by divorce decree to foreign states, because Missouri courts would then be impotent to enforce their subsequent orders. Further, plaintiff urges, defendant did not establish a “clear ap-parency” that the removal of the children from Missouri was to their best interests, and removal of the children to Michigan is indulging in an experiment with them which should not be sanctioned. The second general assignment made by plaintiff is that the court erred in ruling that defendant had sustained her burden of proof to show a sufficient change of condition to warrant the order appealed from.

It is a fact, apparent from the face of the record, that the period of time provided for the children’s visitation in Michigan has expired. From and after August 5, 1962, the trial court’s order granting the visitation has been of no force or effect. Therefore, the questions raised by this appeal have become purely academic and present no actual controversy for decision by this court. Because of the mere lapse of time, the presented issues have become moot. A question is moot when its determination could not have any practical effect upon any then existing controversy. Preisler v. Doherty, 364 Mo. 596, 265 S.W.2d 404.

As a general rule neither appellate nor trial courts will determine moot cases. Personal Finance Company of Missouri et al. v. Day, 349 Mo. 1139, 164 S.W.2d 273; Joplin Waterworks Co. v. Jasper County, 327 Mo. 964, 38 S.W.2d 1068. Where there is no actual controversy in the appeal before it, an appellate court need not determine the case and ordinarily will dismiss the appeal. Personal Finance Company of Missouri et al. v. Day, supra; State ex rel. Donnell v. Searcy, 347 Mo. 1052, 152 S.W.2d 8; Preisler v. Doherty, supra.

Plaintiff admits that this controversy is now moot, but insists that the appeal should be decided on the merits “to establish guideposts for future rulings of the trial court when the inevitable repeat of this type of motion for 1963 occurs”. Defendant requests that we affirm the order and remand the cause to the trial court with directions “to have the parties appear before it and settle upon dates for a like visitation next year”.

In the exercise of our discretion we refrain from rendering a decision on the merits of this case. Any opinion voiced by this court would be merely advisory in nature, since there is nothing of present substance in existence upon which our mandate could operate.

We feel that this court should not undertake to direct, in advance, the future decisions of the trial court on questions involving custody of the children in this case. We are not a court vested with the function of determining such controversies in the first instance. There is no evidence before us on which to base a decision that defendant should or should not be privileged to visit with the children in the State of Michigan in 1963. The only evidence in the record relates to conditions as they existed prior to the summer of 1962.

Whether or not the decree should be modified as to custody and visitation privileges in 1963, or at any other time, rests with the court which has original jurisdiction of this case for trial purposes. Such a determination will have to be made by that court in accordance with the facts that exist and the circumstances that surround the parties whenever the issue is raised by the filing of an appropriate pleading.

The moot question in this case is not one that falls within the exception, to the general rule, that the reviewing court may in its discretion determine moot questions of great public importance, such as those affecting public rights or interests, when those controversies are likely to recur substantially in the same manner and under the same state of facts. See Lawyers’ Association of St. Louis v. City of St. Louis, Mo.App., 294 S.W.2d 676.

Accordingly, the appeal is dismissed.

All concur.


source: Caselaw Access Project

author: BROADDUS, Judge.

license: Public Domain

text:
    Vernon Neal FOGER, Respondent, v. Goldie M. JOHNSON, Appellant.
    No. 23596.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.
    Billy S. Sparks, Thomas J. Daly, Linde, Thomson, VanDyke, Fairchild & Lang-worthy, Kansas City, for appellant.
    Morris Dubiner, Donald E. Raymond, Kansas City, for respondent.
   BROADDUS, Judge.

This is an appeal by the defendant from the action of the court sustaining plaintiff’s application for an order nunc pro tunc to correct a judgment.

On September 23, 1959, plaintiff filed a petition in the Circuit Court of Jackson County wherein he alleged that on June 7, 1959, he was a passenger in a Dodge automobile being operated in a westerly direction on 31st Street near the 2200 block in Kansas City, Missouri; that said Dodge car was stopped at said time and place and was waiting in a line of traffic; immediately in back of the car in which plaintiff was a passenger was a De Soto automobile also stopped; that at said time defendant was operating her Chevrolet automobile in a westerly direction on 31st Street, to the rear of the DeSoto car and to the rear of the automobile in which plaintiff was a passenger; that defendant operated her automobile so negligently and carelessly as to cause the same to collide with great violence into the rear of the standing DeSoto car and to cause it to come into violent collision with the rear of the Dodge car in which plaintiff was a passenger, and as a direct result of defendant’s negligence plaintiff sustained serious and permanent injuries.

Defendant answered this petition and then on February 15, 1961, filed interrogatories to be answered by plaintiff. Copies of these interrogatories were not served upon plaintiff’s attorney as required by Sections 510.020 and 506.100 V.A.M.S. On May 9, 1961, defendant filed her motion to compel plaintiff to answer the interrogatories, and on June 9, 1961, the court ordered plaintiff to answer the same within fifteen days. When the motion was filed, plaintiff’s attorney got a copy of the interrogatories from the court file, but plaintiff was then on active duty in the armed services and could not be reached in time to answer the same in the manner required by the statute (Sect. 510.020.)

On July 13, 1961, the court entered an order dismissing plaintiff’s petition. This entry did not specify that the dismissal was without prejudice and the court overlooked the effect of the Civil Rule No. 67.03, V.A.M.R. under which the dismissal was with prejudice.

On November 7, 1961, plaintiff moved to correct the judgment of dismissal to show that the dismissal was without prejudice. The motion was heard November 10, 1961. Both parties appeared by their attorneys. During the hearing the following statements were made:

“The Court: Well, it is unfortunate, but I think in the interest of justice —I don’t know anything about the merits of the case, but in the interest of justice, if this fellow was in the military service and he was unable to be reached in time, I believe that the order of the court should be amended and the dismissal shown to be without prejudice, because at the time it was my usual custom in all these cases to set aside the order of dismissal where-the party or the attorney showed reasonable basis for that request, and' definitely I would have to set aside the order at any time had I known his-inability to get in touch with his client.
“Defendant’s counsel: I am sure of that Judge. Between the time the interrogatories were filed and the time your first judgment became final, a period from February to the end of August elapsed in which the interrogatories could be answered.
“Plaintiff’s counsel: We didn’t get them, because if you will notice, I had to come ove'r and get the interrogatories out of the court files to have a copy.
“Defendant’s counsel: I agree that in the interest of justice if the man has a lawsuit he should not he done out of it in such a simple manner.
“Plaintiff’s counsel: I have no objection to the costs.
“The Court: The application for amendment of the judgment nunc pro tunc will be sustained, at the plaintiff’s cost.” (Emphasis ours)

The nunc pro tunc order was entered on November 10, 1961. On December 6, 1961, defendant obtained leave in the trial court to file notice of appeal and filed said notice on that day.

Plaintiff contends that this notice was not timely and that the appeal should be dismissed for that reason. He also says that defendant “consented to the entry of the order from which this appeal is attempted and cannot complain of error in entering such order.” If this is true then we need not consider the question of whether or not the appeal was timely. In our opinion, it clearly appears from the above quoted portion of the transcript that defendant acquiesced in the court’s ruling. It is a well established rule of law that a party is not aggrieved by a judgment or an order regularly made with his express or implied consent. 4 C.J.S. Appeal and Error § 213, page 629. And under our statute only an aggrieved party can appeal.

The appeal is dismissed.

All concur.


author: PER CURIAM.

text:
    James S. SIMRALL, Respondent, v. James J. MORROW, Jr., Appellant.
    No. 23681.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.
    Glennon E. McFarland, Wm. M. Austin, James, McFarland & Trimble, No. Kansas-City, for appellant.
    James S. Simrall, Liberty, for respondent.
   PER CURIAM.

Plaintiff brought this action to recover an attorney’s fee from defendant, James J. Morrow, Jr., on an account stated theory. The petition filed by plaintiff reads as follows:

“Now comes the plaintiff for his cause of action and states to the court:
“1. That on or about the first of March, 1957, defendant employed the plaintiff to institute suit on behalf of said defendant for partition of certain property located in Clay County, Missouri ; that said suit was instituted in the Circuit Court of Clay County, Missouri, and was docketed as Case Number 24090 in said court.
“2. That in April, 1958, a final decree in partition was entered ordering-the sale of said property; that subsequently the defendant pursuant to an-agreement dated July 15, 1959, settled said suit and purchased the interest of James J. Morrow, III and had said partition suit dismissed.
“3. That defendant is indebted to plaintiff in the amount of $10.00 for cash advanced for the filing fee in said Case Number 24090 and for attorney’s fee in said cause in the amount of $2,000.00.
“4. That on March 7, 1961, plaintiff mailed to defendant at his business address a statement for the attorney’s fee in the amount of $2,000.00, and having received no reply thereto mailed a second statement on the 8th day of April, 1961. That thereafter plaintiff called defendant in regard to said account on or about the 19th day of April, 1961, but that defendant has failed to pay said account to date.
“Wherefore, plaintiff prays judgment against defendant for the sum of $2,010.00, and for his costs herein incurred.”

The trial court sustained plaintiff’s motion for a directed verdict at the close of the evidence and this is an appeal by defendant from the judgment entered upon a jury verdict in favor of plaintiff in the amount of $2,120.

Defendant’s first point is that ■“plaintiff’s petition is fatally defective because plaintiff did not plead facts to state a claim upon which any relief can be had against this defendant for the reason there is no allegation that the parties agreed upon a sum due from defendant to plaintiff, and that defendant promised to pay said balance.” In our opinion the point is well taken.

In the case of Cape Girardeau and State Line Railroad v. Kimmell, 58 Mo. 83, the court had before it a petition claiming relief on an account stated theory. (The plaintiff herein has based his claim upon án account stated theory, as shown by his motion for judgment on the pleadings.) 'The court in the above case in ruling upon the sufficiency of the petition said, 1. c. 85:

“The petition in this case is defective in its omission to state the defendant’s promise — which though implied in law, must be pleaded as a fact — to pay the balance found against him.”

In the case of Davis & Co. v. Boswell & Strawn, 77 Mo.App. 294, writ of error was sued out to reverse a default judgment. The plaintiff’s petition was attacked for insufficiency. This court in ruling on the point said, 1. c. 297:

“The petition is radically defective. It fails to state a cause of action either on an account stated or for goods sold and delivered. The purpose of the pleader was likely to allege a cause of action as for an account stated; but in this he materially failed. By an ‘account stated’ is meant that the parties have had an accounting between themselves and have agreed upon a balance or a sum certain owing by one to the other, and which said debtor has agreed to pay. The petition in question is wanting in all these necessary elements.”

Newberger v. Friede, 23 Mo.App. 631, 632, and J. C. Van Blarcom v. Donovan, 16 Mo.App. 535, also hold that the failure to plead the agreement and promise is fatal and that the petition fails to state a cause of action.

A more .recent case is Risinger v. Begley, Mo.App., 190 S.W. 418. In that case the appellant claimed as error that the plaintiff had sued on an account stated theory and was allowed to recover on an open account. At 1. c. 418, 419, the court said :

“It will suffice, however, for this court to decide that plaintiff’s claim is not founded on an account stated. There is no allegation that plaintiff stated the account to defendants and that either agreed to its correctness and promised to pay the balance due.”

The above case is cited in 1 C.J.S. Account Stated § 63, p. 743, wherein it is stated:

“Since the cause of action on an account stated is based on the promise, express or implied, to pay the amount found due on an accounting, a petition or a complaint in an action on an account stated must allege that an account between the parties has been stated.”

In 1 Am.Jur., Sec. 39, p. 290, it is stated:

“There must, however, in an action upon an account stated, be an allegation that the account was in fact stated and agreed to.”

The law, therefore, is clear that the agreement and promise to pay, whether expressed or implied, must be specifically pleaded.

Since it appears that defendant may be indebted to plaintiff upon the account in controversy, the plaintiff should not be precluded from recovery in this action by reversing the cause without remanding it for a new trial upon a properly amended petition. Concrete, Inc. v. Curry, Mo.App., 278 S.W.2d 6.

The judgment is reversed and the cause remanded.


author: HUNTER, Presiding Judge.

text:
    George E. DODGE et al., Plaintiff-Respondent, v. FIREMEN’S FUND INSURANCE COMPANY; Dorothy Riebel Bell, d/b/a Riebel Motor Company, and M. F. A. Mutual Insurance Company, Defendants-Respondents. FEDERAL MUTUAL INSURANCE COMPANY, Defendant-Appellant, v. Maxine MORRISON et al., Interveners-Respondents.
    No. 23526.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.
    Edwards, Hess & Collins, Macon, for appellant.

      No appearance for respondents.
   HUNTER, Presiding Judge.

This is an appeal by defendant-appellant, Federal Mutual Insurance Company, from a judgment of the Circuit Court of Randolph County, Missouri, declaring, among other things, that appellant is obligated under the terms of its insurance policy issued to Maurita Dodge on a 1954 Chevrolet car to defend all suits against her son, George DeWayne Dodge, arising out of a collision he had on June 4, 1959, with interveners-respondent the Morrisons and the Peavlers.

On the evening of June 3, 1959, Mrs. Dodge and a salesman for Riebel Motor Company came to an agreement concerning the trade of Mrs. Dodge’s 1954 Chevrolet for a certain 1956 Ford. Mrs. Dodge signed an order form concerning finance payments and a chattel mortgage and note. The following day, June 4, 1959, George DeWayne Dodge was driving the 1956 Ford and was involved in a collision with a car occupied by interveners-respondents, the Morrisons and the Peavlers. As a result three damage suits totaling $32,500 have been filed by them against him and are pending in the Circuit Court of Randolph ■County, Missouri, at Moberly. On June 6, 1959, Dorothy Bell, owner of the Riebel Motor Companjr, made out and delivered to Mrs. Dodge an automobile title to the 1956 Ford and took an assignment of title to the 1954 Chevrolet owned by Mrs. Dodge.

Mrs. Bell had a liability insurance policy in effect with defendant Firemen’s Fund Insurance Company. Mrs. Dodge had a policy of liability insurance in effect with appellant Federal Mutual Insurance Company issued to her as owner of the 1954 Chevrolet involved in the trade. George E. Dodge and Maurita Dodge had a policy of liability insurance in effect with M. F. A. Mutual Insurance Company issued to them as joint ■owners of another 1954 Chevrolet car not involved in the trade.

George E. Dodge, Maurita Dodge, and •George E. Dodge as next friend of minor, George DeWayne Dodge, filed suit for this declaratory judgment praying for a determination of the rights and liabilities of the parties arising out of the mentioned insurance policies and for $10,000 damages.

Appellant, Federal Mutual Insurance Company, answered that the primary liability and the primary obligation to defend the suits filed against George DeWayne Dodge rested on Firemen’s Fund Insurance Company, and that Federal Mutual Insurance Company and co-defendant M. F. A. Mutual Insurance Company have no obligation to defend the damage suits and are-obligated to pay, equally, the excess above the policy limits of Firemen’s Fund Insurance Company against George DeWayne Dodge.

The trial was to the court who on May 5, 1961, ruled that (1) M. F. A. Mutual Insurance Company is not obligated to defend or to pay any judgment in the mentioned actions; (2) defendant Firemen’s Fund Insurance Company is obligated to defend and shall pay any judgments rendered against George DeWayne Dodge as a result of the mentioned collision up to the limits of its policy; (3) that appellant Federal Mutual Insurance Company is obligated to pay within the limits of its policy any excess above the policy limits of defendant Firemen’s Fund Insurance Company of any judgment rendered against George De-Wayne Dodge as a result of the collision and is obligated under the terms of its policy issued to Maurita Dodge to defend any and all suits against plaintiff George DeWayne Dodge arising out of the mentioned collision; and that (4) plaintiff George DeWayne Dodge recover from Firemen’s Fund Insurance Company and Appellant in equal shares $500.00 for legal fees incurred in defending the actions filed against him arising out of said collision.

As mentioned, the only part qf the declaratory judgment questioned on this appeal is that portion finding that appellant is obligated under the terms of its insurance policy issued to Maurita Dodge on the 1954 Chevrolet to defend any and all suits against her son George arising out of the June 4, 1959 collision with the Morrisons and Peav-lers. The respondents have not favored us with a brief.

The judgment of the trial court determined that appellant Federal Mutual Insurance Company by the terms of its mentioned policy is only the excess carrier and is obligated to pay within the limits of its policy only any excess above the limits of Firemen’s Fund Insurance Company of any judgment rendered against George De-Wayne Dodge as a result of the June 4, 1959 collision. The amounts prayed for in the three damage suits are $13,500, $15,500, and $3,500 for a total of $32,500. The policy coverage of the primary insurer Firemen’s Fund Insurance Company, is $25,000 and $50,000. Thus the total of the amounts sued for is well within the coverage provided by the primary insurer, Firemen’s Fund Insurance Company, which is obligated to defend and no longer questions its duty to defend. There is no suggestion that it is not a financially sound company able to carry out its duties imposed by its insurance policy.

Since Firemen’s Fund Insurance Company alone must pay any of the judgments obtained it should have the exclusive right to control and to conduct the whole defense rather than to share that responsibility with another insurance company whose excess coverage under the facts presented will not be called upon. It would be unjust to Firemen’s Fund Insurance Company to declare it has the duty to defend and the obligation to pay the judgments, if obtained, and still to permit Federal Mutual Insurance Company to participate in the control of the defense.

It is equally illogical and unjust to saddle appellant Federal Mutual Insurance Company with either the duty to defend or the expense of defending these suits when under the facts presented it has no financial interest in them and has not agreed to defend them. As stated in 7A Appleman, Insurance Law and Practice, Sec. 4686, page 472: “ * * * the insurer’s duty to defend actions ordinarily is correlative with its duty to pay judgments against the insured, and generally the former duty does not exist if the latter does not.”

In order to give the trial court opportunity to correct its judgment in accordance with this opinion by removing therefrom any declaration of duty on the part of appellant to defend and to pay any of the cost of defending the mentioned suits, the judgment is reversed and the cause is remanded.

All concur.


author: MAUGHMER, Commissioner. PER CURIAM.

text:
    Kenneth R. SETTELL, Plaintiff-Respondent, v. Michael G. HORGAN, Defendant-Appellant.
    No. 23684.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.

      McKenzie, Williams, Merrick, Beamer & Stubbs, James L. Williams and Keith K. Couch, Kansas City, for appellant.
    Robert A. Schroeder, Robert A. Nelson, Walter A. Raymond, Kansas City, for respondent.
   MAUGHMER, Commissioner.

Plaintiff, Kenneth R. Settell, had a $7,500 verdict and judgment against Michael G. Horgan, defendant, for personal injuries sustained in a collision of their two automobiles. On his appeal defendant presents two and only two assignments of error. He says the trial court erred in giving Instruction #5 because it is not supported by any evidence of the permanency of plaintiff’s injuries and, second, either a new trial or a remittitur should have been ordered because the judgment for $7,500 is excessive.

The accident occurred about 11:00 a.m. on December 15, 1959, at the intersection of 12th and Chestnut streets in Kansas City, Missouri. Plaintiff was operating his tractor-trailer north on Chestnut street and defendant was driving his Ford automobile west on 12th street.

Since the question as to defendant’s negligence and consequent liability is neither disputed nor preserved by the appeal, we go directly into the evidence touching permanency of the injuries and the alleged excessiveness of the allowance.

Instruction #5, given by the court, is as follows:

“The Court instructs the jury that if you find the issues in favor of plaintiff, KENNETH SETTELL, you will assess his damages at such sum as you find and believe from the evidence will compensate him for the injuries, if any, sustained by him as shown by the evidence ; and in estimating such damages you will take into consideration the physical injury, if any, inflicted; the bodily pain, if any, and mental anguish, if any, which he has endured and suffered and which he is reasonably certain to endure and suffer in the future; the character and extent, his injuries, if any, and whether they are temporary or permanent; his loss of earnings, if any, and the sums, if any, which he has expended for medical expenses by reason of such injury”.

Defendant’s assignment of error as to this instruction is restricted to the assertion that “it is not supported by any evidence of permanency”. It is fundamental that an instruction should never submit an issue which is not supported by evidence. Heibel v. Robison, Mo.App., 316 S.W.2d 238, 241.

The question of the sufficiency of evidence to support an instruction for per manent injury is fully discussed by the court en Banc in Weiner v. St. Louis Public Service Co., Mo., 87 S.W.2d 191, 192,, where it adopted, approved and quoted as follows from Lebrecht v. United Rys. Co. of St. Louis, Mo., 237 S.W. 112, 114:

“ ‘ “To justify a recovery for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury. To say of a thing it is permanent means that it will continue regardless of a contingency or fortuitous circumstance.” * * * Proof of a condition which may cause future trouble is not necessarily proof of a permanent injury, the former may persist after the trial but not continue to exist permanently while the latter is a physical or mental impairment or disability which will last throughout life, and there is a distinction between damages which may reasonably result in the future and damages allowable as for a permanent injury. * * * To recover damages for permanent injury the permanency of the injury must be shown with reasonable certainty and while absolute certainty is not required mere conjecture or likelihood, or even a probability, of such injury will not sustain the allowance of damages therefor.’ ”

This declaration of the rule has been reiterated and approved by our courts many times during the ensuing years. Plank v. R. J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328, 334; Brown v. Kansas City, Missouri, Mo.App., 311 S.W.2d 360, 362; Heibel v. Robison, Mo.App., 316 S.W.2d 238, 242, and Gulley v. Spinnichia, Mo.App., 341 S.W.2d 301, 307.

When the accident occurred plaintiff was twenty-seven years old. He finished the ninth grade, served in the army and has been a truck driver and farmer. At the time of the injury he was employed by Midwest Fruit Company as a truck driver with earnings of $87 per week. He is left-handed. In describing his injuries plaintiff said: “It knocked me out”, that he was stunned, his left forearm and wrist were “hurting terrifically”, his head and neck hurt and there was a numbness in his back. He testified that he was taken to General Hospital in an ambulance where x-rays were taken. Mr. Settell remained in the hospital for a few hours and on the next day saw Dr. Duncan, the company doctor, who gave him treatments for about three weeks, when he “went back to work”. It was his testimony that his wrist, neck and shoulder got worse and he had “sharp pains like a dull toothache”. He had never previously received any injury to his left arm, wrist, shoulder or back.

Plaintiff next consulted Dr. Campbell McCullough, an orthopedic surgeon, as his private physician. He saw this doctor more than sixty times and the bill was $960. Dr. McCullough’s treatment consisted of heat treatments and traction. Mr. Settell said he worked for “the Churchill people” for about one year after the accident, that “every time I would start' to pick up something my wrist would start hurting and after I was there approximately half-hour, if I was lifting freight, I would start getting headaches and my neck would get sharp pains”. Plaintiff drove a cab for a while and then resumed as a truck driver for Midwest. He testified that the operation of the big truck caused his wrist to swell and he had pain in his neck. He took aspirin, anacin and bufferin regularly for the pain.

Dr. McCullough testified that he first examined plaintiff in December, 1959. He described plaintiff’s complaints of pain and found some limitation of motion in the left wrist. There was tenderness in the main muscle upper half shoulder blade. He prescribed and gave modified diathermy. The doctor had x-rays made of both wrists, scapula, shoulder joint and cervical spine. He said these pictures revealed limitation of motion in the neck — right looked 20 percent of normal and the “left 20 on forward flexion and extension, bending head and back”. He also found the left shoulder blade and neck lacked “about 10 percent in abduction”. Dr. McCullough declared these findings showed abnormality and were deviations from normal. He also found muscle spasm in the neck. There were no fractures. There was some atrophy of the left forearm muscles and the grip of the left hand was less than with the right, although patient was left-handed. On the question of permanency Dr. McCullough made these statements: “He has some permanent disability related to his left wrist and to his neck.” “In my words, the injuries that the man sustained are painful and can lead to permanent disability”. Referring to the injuries he found and described as to the left wrist and neck, “Oh, I think they are permanent, point to permanent disability”.

Dr. William Duncan, company physician, was called on behalf of defendant and testified. He described his treatment of plaintiff which lasted about three weeks immediately after the accident. He saw plaintiff on February 6, 1960 — two months after the accident — for an annual company examination and again on November 4, 1961. He said that on neither occasion did plaintiff voice any complaints. This doctor found no disability.

Dr. Paul Centner examined plaintiff for defendant on November 4, 1961, a few days before trial. He found no wasting or atrophy.

Was the evidence presented by plaintiff and by Dr. McCullough sufficient to justify submission of permanency? In Kiger v. Terminal Railroad Ass’n. of St. Louis, Mo., 311 S.W.2d 5, plaintiff sustained soft tissue injuries to the neck and lower back areas with contusions of the leg. There were no fractures. Plaintiff was thirty years of age, had finished the 8th grade and was a laborer,, earning $360 per month. He was hospitalized for six days but had treatments for a long time thereafter for pain. One of plaintiff’s medical witnesses, Dr. Parsons, described a compression injury in the cervical vertebrae, scar tissue in the neck and shoulder muscles which was permanent, and said — '“plaintiff probably sustained a partial herniation of a disc in the low back”. He said plaintiff had, in his opinion, sustained a permanent low back injury without reference to the question concerning a ruptured disc. The question of permanency was submitted. The verdict and judgment was for plaintiff in the amount of $30,000. The Supreme Court (p. 14) said: “We doubt that the testimony of Dr. Parsons is sufficient to reasonably support a conclusion that plaintiff sustained a ruptured disc.” On appeal defendant contended there was insufficient evidence of permanency and that the verdict was excessive. The court approved submission as to permanency but required a remittitur of $10,000.

In Burnison v. Souders et al., 235 Mo.App. 1159, 35 S.W.2d 619, 626, plaintiff injured her head causing swelling and tenderness over her left eye. She testified that her eyesight was impaired and she suffered severe headaches. Her doctor said: “I am inclined to think there is more or less permanency with it”. This court ruled that the testimony of plaintiff and her doctor was sufficient to justify submission of permanency to the jury.

In White v. St. Louis Public Service Co., Mo.App., 249 S.W.2d 498, 502, the treating physician, when asked for his opinion as to permanency, said: “I feel it is permanent” and when asked if it would continue for the remainder of her life, replied: “I think it will”. The court said: “Such evidence justified the inclusion of the element of permanent injury.”

In our case the trial was held almost two years after the accident. Plaintiff testified as to continuing pain and disability. Dr. McCullough expressed his opinion that “he has some permanent disability related to his left wrist and to his neck” and “Oh, I think they are permanent,, point to permanent disability”. We believe such evidence justified inclusion of the element of permanency in the submission to the jury.

Defendant asserts that the verdict for $7,500 is so excessive as to entitle him to either a new trial or a remittitur. The evidence as to injuries in Kiger v. Terminal Railroad, supra, which we briefly summarized in this opinion, is not greatly different from the evidence as to injuries in our case. There the appellate court required a remittitur of $10,000 on a $30,-000 verdict and in the opinion (311 S.W.2d p. 15) quoted with approval from another opinion as follows:

“ ‘There is no precise method for determining the maximum award which the evidence in this case will support. Each case must be considered upon its own peculiar facts. Due regard should be given to the purchasing power of the dollar, to the rule of reasonable uniformity of awards for similar injuries and to the fact that the jury and the trial judge were in a better position than this court to measure an award of reasonable compensation, as well as to the fact that the trial court has approved the verdict in question.’ Burr v. Kansas City Public Service Co., 365 Mo. 115, 276 S.W.2d 120, 127.”

In Ciardullo v. Terminal Railroad Ass’n. of St. Louis and Graham Paper Co., Mo., 289 S.W.2d 96, 99, 100, the court said:

“Next for consideration is appellant Graham’s contention that the verdict of $15,000 is excessive. The injuries suffered by the plaintiff are confined solely to the elbow of his left arm. His pecuniary damages consist of a wage loss of between $1,500 and $1,600. There were no medical or hospital expenses. Plaintiff returned to his work as a switchman for the Terminal at the same wage rate he earned before the accident, which was about $416 per month. At the time of trial he had been working for a period of about ten months, apparently without loss of time.
“Plaintiff testified that he had ‘steady pain’ in his elbow and that it usually gets worse after he has done work with the arm or has kept it in one position too long. He does not have any special training or education and has been a manual worker since he was 16 years of age. He was 30 years old at the time of the trial.”

The appellate court there reduced a $15,000 judgment to $12,000.

In our particular case the judgment is for $7,500. The plaintiff is a young man — 27 years old when the injury occurred — and is qualified only for physical labor. The amount of the judgment has had the approval of the trial judge. We are not willing to disturb it.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: RUARK, Presiding Judge.

text:
    Emlus GREER, Claimant-Appellant, v. MISSOURI STATE HIGHWAY DEPARTMENT and Hartford Accident and Indemnity Company, Defendants-Respondents.
    No. 8099.
    Springfield Court of Appeals. Missouri.
    Dec. 12, 1962.

      Dempster & Edwards, Sikeston, for claimant-appellant.
    Evans & Dixon, John R. Dixon, St. Louis, for defendants-respondents.
   RUARK, Presiding Judge.

This is an appeal by employee-claimant from the order of the circuit court affirming the final award of the Industrial Commission which denied compensation. The sole question is whether there was causal connection between an accident which occurred on April 6, 1959, and a coronary occlusion thereafter which resulted in myocardial infarction.

Claimant, 56 years old, height 5T0", weight approximately 187 pounds, had been employed at common labor in the blacksmith shop of employer for seven years. Sometimes he did heavy work and sometimes “not too heavy.” He had no history of, nor does the record show that he had been examined for, “heart trouble.” His physician had treated him for “other things but never for heart.”

On Monday, April 6, 1959, fairly early in the afternoon, he was engaged in cutting two-inch galvanized water pipe into different lengths and welding them. He had a twenty-foot length of pipe which had a kink or bend in it. As he had been accustomed to doing theretofore, he carried the pipe outside, stuck one end under a roller of a concrete mixer and over the frame of the vehicle; then he prepared to sit down on the extended length so as to use the weight of his body in bending the pipe straight. He put both hands on the pipe (about three feet off the ground) and put his right leg over it, but it slipped or twisted in his hands “real quick” and he fell. In so doing he received a jerk or strain in his chest. He did not fall completely to the ground. He did not receive any direct blow or direct trauma to his chest. (Note: The lack of any such direct blow was considered by some of the medical witnesses to be important in forming their opinion concerning causal connection.)

At the time of or immediately following the fall, he experienced pain in his chest. He walked over and sat down. He felt that he was smothering and could hardly breathe. He sat for about twenty minutes and then got in his truck and went home. After he got home he drove to Morehouse to see Dr. Sarno, his family physician. He says he told the nurse at the doctor’s office what had happened, “and she gave me a shot and some medicine.” Claimant’s witness, Dr. Sar-no, testified that claimant gave a history that “he thought he had a cold. He had an upper respiratory infection. As a matter of fact he came to my office and I was not there and my nurse gave him penicillin for it.” Claimant went back home and started taking his medicine. He stayed off work and at home on Tuesday and Wednesday (April 7 and 8). The pain in his chest remained about the same. On Thursday and Friday (April 9 and 10) he went back and worked those two days. Then he was home the following four days, still with his pain. He then went back “and tried to work some more for the next three days” (the 15th, 16th and 17th), although he still had the pain in his chest and his nose bled quite a bit. The pain got worse, and on the 18th he called his doctor, and the result of that call was he met the doctor at the hospital a little before noon. He was admitted to the hospital and immediately placed under oxygen for four days. He remained in the hospital for six weeks. While in the hospital he had electrocardiograms taken on April 20 and April 25.

Doctors testifying for both claimant and employer seem to agree that claimant (at some time prior to April 25) suffered a coronary occlusion and myocardial infarction; that he now suffers from that, with accompanying angina and with shoulder-arm syndrome as a result. It also seems to be agreed that claimant was and had been for an undetermined period suffering from arteriosclerosis or hardening and narrowing of the arteries.

Dr. Sarno, who is a practicing physician and surgeon with experience in heart cases, was of the opinion that when he first saw and examined claimant on the 18th he was “in the process of suffering an acute coronary thrombosis.” In answer to a hypothetical question he stated that it was “very possible” the incident of the fall or jerk could have caused or brought on the thrombosis, and in his opinion it did. He testified that anyone can have a heart attack in bed or just walking down the street, but he felt that the fact claimant was working and did some physical exertion immediately prior to onset of pain was a very significant factor. Asked if there were not just as strong a probability that the pipe-straightening incident was simply a coincidence instead of a causative factor, he stated, “It is a very fine line that you draw here. It is just hypothetical whether you could have it and then have an accident or whether the accident caused this condition. I feel the accident definitely caused this condition because I have known Mr. Greer for many, many years and I have never known him to have any heart trouble and by the same token I have just made the statement anyone can have a coronary that has had no clinical heart trouble. I just can’t help from believing the relationship of this injury to the mechanism of his heart attack is not a direct causal relationship factor.”

Dr. Popp, M.D., a specialist in internal medicine and witness for claimant, testified that he examined claimant and the EKG’s of April 25 and April 20 on July 15, 1959, and on occasions thereafter. He was of the opinion that claimant suffered from arterio-sclerotic heart disease with residual angina after myocardial infarct. He believed that the infarct occurred between April 20 and April- 25, since the EKG of April 20 did not show it. He stated that the causative factors of heart attacks are many and are not necessarily associated with strenuous activity. He said, however, he felt the accident was a contributing factor to claimant’s disability. He based this upon the fact the pain began at that time. He stated that he could not answer whether it was “just as probable” that the onset of the illness and the accident were coincidental as distinguished from the fact of the accident’s being a causative factor; but he thought that the stress of such incident contributed to the illness. His theory was that stress causes the blood pressure to go up and that if an arteriosclerotic condition exists, it is possible for some of the inner layer to break loose and cause a thrombosis.

Employer’s witness, Dr. Davis, a physician specializing in internal medicine and senior instructor on the subject at St. Louis University, examined claimant on June 24, 1959, took his history and also examined the EKG’s and made some more. He was of the opinion that claimant already had some heart damage when the April 20 EKG was taken. He stated that ordinarily a man who suffers a myocardial infarction would be unable to return to his job within a few days, and he doubted very much that claim-i ant could have suffered one and returned to work for three days. In answer to a hypothetical question incorporating the history and events, he stated that the accident had nothing to do with the myocardial infarction ; that these occur to people in all walks of life, more often in those with sedentary occupations. He thought the infarction was purely coincidental and was not related to claimant’s occupation in any way. He was of the opinion that claimant’s infarction occurred shortly before he was hospitalized, probably on April 18. It was possible, though not probable, it occurred on April 6. He did not believe that strain or stress might cause a piece of the inner lining of a degenerated artery to break loose and cause it (in contradiction of a theory suggested by Dr. Popp). That myocardial infarction comes from hardening of the arteries and would not be hastened by a strain or jerk. That statistically speaking such attacks come at any time of day or night regardless of what the individual is doing. That only 2% of attacks occur after hard physical exertion and that approximately 2% of every person’s waking life, including sedentary work, involves doing something which is strenuous. That strain has nothing to do with precipitating an infarction such as that suffered by claimant. That the thrombosis (clot) of the coronary artery forms on a rough place in the inner lining of the artery and remains until it blocks the blood vessel. It is the result of degeneration of the artery. The blocking of oxygenated blood supply causes parts of the heart muscle to die. A blood clot that floats in the blood stream will generally go into the lungs. In 99.9% of the cases a clot which causes coronary occlusion is formed at the heart and continues to form until it blocks the blood vessel; and there was in this case no evidence of a clot having been formed anywhere else. It was the doctor’s opinion that claimant’s infarction probably did not happen at the time of the accident; but if it did so happen, it was purely a coincidence. That angina or heart pain results from insufficient blood supply and sometimes precedes myocardial infarction, and that an individual can suffer from angina for a long time and suddenly have an infarction, or he may live out his life and never have one.

Employer’s witness, Dr. Miller, assistant professor of clinical medicine and internist whose practice is approximately half heart, lungs and circulation, made the same examination and inquiry as that made by Dr. Davis. He testified that the highest incidence in coronary occlusion occurs in men between 50 and 60 years of age; that claimant had blood vessels which were older than they should be for his age, and he had a calcified plaque in the aortic arch. He was of the opinion that up to the time of the EKG on April 20 claimant had hardening of the arteries and some damage to the heart muscle. He was suffering from atherosclerosis (deposits of lipids in little plaques in the walls of the blood vessel.) He said that, while many factors are involved, this is the chief cause of occlusions. He stated that the plaques previously mentioned do not flake loose and float. They are found in the wall of the vessel. A clot can form on the plaque and cause a blocking of the artery. He testified that the heart damage claimant had sustained prior to the April 20 EKG occurred over the last several years of his life; that if it had occurred within a period of a few days the EKG would have looked different; that claimant suffered his infarction after April 20. The condition he had on April 20 was something which had developed over a period of time. He expressed the opinion that the basic cause of claimant’s condition was heredi-l tary background, diet, and obesity; that there was no causal connection between the pipe-straightening incident and the occlusion which caused the infarction; that an occlusion can come suddenly or gradually, but what claimant was doing on April 6 had nothing to do with what he complained of on that day; that strenuous exercise does not precipitate a coronary attack, but continuous and sustained effort may do so; that he had no aneurysm of the aorta; that claimant could have had a mild anginal seizure on April 6 caused by a spasm because the heart muscle was not getting enough oxygen. Many times an individual has angina resulting from insufficient blood supply; he can have it for many years, either before or after a coronary. Angina happens when the arteries contract or become narrow and do not let enough blood through. He stated he did not agree that physical strain would bring about or precipitate a coronary occlusion, and in this particular instance claimant would have had it had he been home in bed.

Based on the foregoing evidence, the referee found that the accident of April 6 resulted in injury to claimant’s heart and awarded him temporary total disability.

The Industrial Commission, by divided vote, found in substance that: (1) The findings of the referee were not supported by competent and substantial evidence. • (2) The heart attack did not result from the accident of April 6, 1959. (3) Claimant was suffering from arteriosclerosis. The incident did not cause or contribute to the heart attack which occurred approximately two weeks later; that it would be speculation and surmise to connect the two events. (4) The employee thought he was suffering from a cold. In the light of all the evidence, the only reasonable inference is that employee’s disease had reached the point where he was feeling intermittent chest pain because the disease had narrowed the artery so that insufficient oxygen-carrying blood was getting through to the heart. This was the terminal stage of his disease and was not connected with the accidental event. (5) The evidence shows that after the April 6 event claimant was up and around, driving his truck, and that he worked at his employment a certain number of days. Under the evidence, if he had sustained an infarction, he would have been too ill to do so. (6) According to the evidence, the EKG’s show that the infarction occurred between April 20 and April 25; that the basic cause of claimant’s disability comes from arteriosclerosis. The finding of the referee was reversed and an award entered denying compensation.

One commissioner dissented, stating as his reasons: (1) The pain immediately following the April 6 incident is a classic sign of angina pectoris, which in turn is a classic symptom of myocardial insufficiency. (2) The evidence shows employee had had no previous symptoms and his heart difficulties began instantaneously with the accident. The inference is that the accident caused or contributed to the condition. (3) The infarction is of relatively minor importance. Claimant’s primary disability is myocardial insufficiency as evidenced by angina. It is this which makes his disability.

On appeal the circuit court found the final award of the commission was sustained by competent and substantial evidence and affirmed the award.

In this case there appears to be little or no dispute that claimant was subject to a physical condition which made the onset of a coronary occlusion possible, if not probable. The real question in a nutshell is, did the pipe-bending incident, the twist, the fall, and the jerk, aggravate this condition or precipitate the occlusion which in turn caused the infarction and resultant disability? Claimant’s doctors felt that it did. Respondent’s medical witnesses were of the opinion that there was no connection between the accident and the occlusion; that it would have happened anyway. The majority of the commission decided to give credence to the opinions of the latter. Now we are asked to overrule that decision.

It is not our province to weigh the evidence and substitute our judgment on the evidence for that of the commission.' Our review is limited to determining whether such tribunal could have reasonably made its findings and reached its result upon the evidence before it. If there is competent and substantial evidence upon which to base the award and if such award is not clearly contrary to the law or the overwhelming weight of the credible evidence, we are bound to affirm it. This general rule has been stated so often that we feel it is unnecessary to recite authority. The mere statement of the rule necessarily carries the implication of deference to the commission in respect to its findings on disputed questions of fact. The finding of the commission need be based upon only a reasonable probability. Karch v. Empire Dist. Elec. Co., 358 Mo. 1062, 218 S.W.2d 765;, Lunsford v. St. John’s Hospital, Mo.App., 107 S.W.2d 163, 166; Gardner v. Ford Motor Co., Mo.App., 130 S.W.2d 201(6); Leonard v. Fisher Body Co., St. Louis Division of General Motors Corporation, Mo.App., 137 S.W.2d 604, 610. However, “neither may a fact be found, nor a claim or defense, nor an award be based upon mere speculation, suspicion or conjecture.” Shrock v. Wolfe Auto Sales, Inc., Mo., 358 S.W.2d 812(4).

The appellant says the award is not supported by evidence substantial to dispute or overcome the very substantial evidence offered by the claimant.

“Who shall decide when doctors disagree ?”

A settled rule of law is that, where the right to compensation depends upon the acceptance of one of two conflicting medical theories, the question to be determined is one of fact to be weighed by the commission, and we are not to disturb the finding unless the commission acted unreasonably in accepting testimony which was not substantial or in deciding the case against the overwhelming weight of the evidence. Vollmar v. Board of Jewish Ed., Mo., 287 S.W.2d 868, 872; Cole v. Best Motor Lines, Mo.App., 303 S.W.2d 170; Teel v. F. Burkart Mfg. Co., Mo. App., 271 S.W.2d 259; Sams v. Hayes Adhesive Co., Mo.App., 260 S.W.2d 815; Clark v. Frazier-Davis Const. Co., Mo.App., 258 S.W.2d 934; Kerby v. Missouri State Highway Commission, Mo.App., 238 S.W.2d 464, 470; Jones v. Remington Arms Co., Mo.App., 209 S.W.2d 156; Valdes v. Emerson Elec. Mfg. Co., Mo.App., 216 S.W.2d 947; see Meldrum v. Southard Feed & Mill Co., 229 Mo.App. 158, 74 S.W.2d 75.

It has been held that, in determining whether the commission could reasonably have made its findings, the court will look only to the evidence most favorable to the award, together with all reasonable inferences that tend to support it, and will disregard all opposing and unfavorable evidence, even though the finding of the commission to the contrary would also have been supported by evidence. Love v. Land, Mo.App., 356 S.W.2d 105 (1); Schmidt v. Rice-O’Neill Shoe Co., Mo.App., 226 S.W.2d 358, 362 (and cases there cited) ; Thacker v. Massman Const. Co., Mo., 247 S.W.2d 623(2); Erwin v. Railway Exp. Agency, Mo.App., 128 S.W.2d 1077. “It is true that claimant presented testimony which, had it been accepted by the Commission, would have supported an award in claimant’s favor. But the Com mission was not compelled to believe this testimony. The Commission was at liberty to reject all or any part of the testimony which if did not consider credible, and accept as true contrary evidence adduced by the respondents. The Commission also had the right to accept parts of the testimony of the physician testifying for claimant, and the physician who testified for respondents, — it being the province of the Commission to resolve conflicts in the evidence and give probative value to only that part which has the ring of truth in it.” Sams v. Hayes Adhesive Co., Mo.App., 260 S.W.2d 815, 1. c. 819. And there is also much authority for the statement that, in the final analysis, the claimant has the burden of proving that his disability is the result of an accident sustained in the course of his employment. De Lille v. Holton-Seelye Co., 334 Mo. 464, 66 S.W.2d 834(4); Bolen v. Wallace, Mo., 338 S.W.2d 73; Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W.2d 236; Francis v. Sam Miller Motors, Mo., 282 S.W.2d 5(2); Alexander v. Saunders Mills, Inc., Mo.App., 289 S.W.2d 483(4).

The opinions of the medical experts, who by their training and experience possess superior knowledge of a subject concerning which we ordinary folks are incapable of deducing correct conclusions, when based upon examination and adequate data and reasons to support them, and when not the result of mere guess or speculation, are substantial and competent evidence. Gaddy v. Skelly Oil Co., 364 Mo. 143, 259 S.W.2d 844; Kimmie v. Terminal R. Ass’n of St. Louis, 334 Mo. 596, 66 S.W.2d 561; Waterous v. Columbian Nat. Life Ins. Co., 353 Mo. 1093, 186 S.W.2d 456; Clark v. Frazier-Davis Const. Co., Mo.App., 258 S.W.2d 934, 938. [As are expert medical opinions upon hypothetical assumptions based on facts in evidence. Parrott v. Kisco Boiler & Engineering Company, Mo.App., 332 S.W.2d 41(8).]

We agree with appellant that an opinion of a doctor rendered without any basis for knowledge and unsupported by adequate reasons would be purely guess and speculation and not substantial evidence. See Stepaneck v. Mark Twain Hotel, Mo.App., 104 S.W.2d 761, 766; Christ v. St. Louis Malleable Casting Co., Mo.App., 213 S.W.2d 636(2) ; Bolen v. Wallace, Mo., 338 S.W.2d 73, 77. But it would appear to us that all doctors who testified for both parties were well qualified in their profession and that they had the advantage of having the history of the case, of having examined the claimant personally, and of having “read” the electrocardiograms. Quite obviously, the events which occurred within this man’s body were not open to visual inspection, as a cut on the foot or a black eye would have been. The doctors to some extent “see” conditions through electrocardiograms. From these, the history of the case, and such facts as they are able to observe on personal examination, they form their opinions. Where the opinion of a doctor is based upon those means of knowledge which are regarded by the medical profession as sufficient, the appellate court cannot act as a jury and say the opinion is without “supporting 'reasons and testimony.’ ” Schaefer v. Rechter, Mo., 290 S.W.2d 118, 124.

Nor can we say that the award is contrary to the overwhelming weight of the evidence. We have been referred to various texts, treatises, and statistics in reference to the subject involved. We have read them with much interest; but we feel that we are no more competent to use and apply them than would a member of the medical profession be competent to interpret and render decision upon an involved and disputed legal point. All we get from these treatises is that medicine is not an exact science, that doctors do disagree, and that we should stick to our own last and leave questions of medicine and medical theory to the doctors, and, in case of dispute between them, to the trier of the fact, who must of necessity give more credence to one or the other. This has been the steadfast attitude of the courts. An examination of some of the “heart” cases in the appellate courts in this and other states indicates that sometimes apparently conflicting' results have been reached, but this comes because the medical profession itself is sometimes in conflict. We have no alternative except to hold that the award found by the majority of the commission was supported by competent and substantial evidence and must, therefore, affirm the judgment of the circuit court in sustaining the award. It is so ordered.

STONE and McDOWELL, JJ., concur.

      . Alexander Pope, Moral Essays, Epistle UL

      . Those interested in the subject might examine Kerby v. Missouri State Highway Commission, Mo.App., 238 S.W.2d 464; Schaefer v. Rechter, Mo., 290 S.W. 2d 118; De Lille v. Holton-Seelye Co., 334 Mo. 464, 66 S.W.2d 834; Parrott v. Kiseo Boiler & Engineering Company, Mo.App., 332 S.W.2d 41; Vollmar v. Board of Jewish Ed., Mo., 287 S.W.2d 868; Meldrum v. Southard Peed & Mill Co., 229 Mo.App. 158, 74 S.W.2d 75; State ex rel. Hussman-Ligonier Co. v. Hughes, 348 Mo. 319, 153 S.W.2d 40; Jones v. Remington Arms Co., Mo.App., 209 S.W.2d 156; Clevenger v. Standard Steel Works, Mo.App., 230 S.W.2d 113; Powers v. Universal Atlas Cement Co., Mo.App., 261 S.W.2d 512; see also Walker v. St. Louis Public Service Co., 362 Mo. 648, 243 S.W.2d 92; Karch v. Empire Dist. Elec. Co., 358 Mo. 1062, 218 S.W.2d 765; Erholtz v. Balkan Mining Co., 245 Minn. 73, 70 N.W.2d 863.

       We consider the Karch case, cited above, more an authority on the family life of Ozark ticks than as a final authority on diseases of the heart.


text:
    Robert THOMAS, Respondent, v. Alec BELINGLOPH, Appellant.
    No. 23634.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.

      Caldwell, Blackwell, Oliver & Sanders, Dean Arnold, Kansas City, for appellant.
    Harrington & Wurdack, Robert Wur-dack, Kansas City, for respondent.
   BROADDUS, Judge.

This is an action for damages for personal injuries. The jury returned a verdict in favor of defendant. Plaintiff filed a motion for new trial which was sustained by the court. Defendant has appealed.

On March 31, 1960, a collision occurred between an automobile operated by defendant and a truck operated by one Walter James. Plaintiff Robert Thomas was a passenger in the truck. The accident occurred at the intersection of 29th Street and Garfield Avenue in Kansas City, Missouri. Garfield runs north and south, 29th Street east and west. The truck occupied by plaintiff was going west on 29th Street and defendant was driving south on Garfield. The truck was almost through the intersection when it was struck on the right rear wheel by the front of defendant’s automobile. The impact was of sufficient force as to cause the rear of the truck to describe an 180° arc and to topple over on its left side just west of the intersection.

In the course of his opening statement to the jury defendant’s counsel made these, statements:

“Now the issue that will be submitted to you folks is whether these people failed to yield the right-of-way to Mr. Belingloph.”
“As I say, we will have the City Ordinance in evidence so the issue here is the question of whether these, people failed to yield the right-of-way.”
“The liability issue is the question whether they failed to yield the right-of-way.”

Plaintiff’s counsel objected to defendant’s counsel “introducing the question of the violation of the city ordinance and failure to yield the right-of-way when he knows this man was a passenger in the automobile and not driving the car. It is very prejudicial to Mr. Thomas’ case and I move that all of those remarks be stricken and the jury instructed to disregard them, and I further move for a mistrial.” The trial court, of course, having no way of knowing at that time what the evidence would be, overruled the objection and denied the motion.

The order granting plaintiff a new trial reads:

“The court having considered plaintiff’s motion for a new trial, believing that defendant in his opening statement stated there would be evidence of contributory negligence on the part of plaintiff in violation of right of way ordinance when defendant knew there was to be no substantial evidence of plaintiff’s joint control of the vehicle in which he was a passenger, was preju-dicially erroneous, the plaintiff’s motion for a new trial is therefore granted on ground numbered 3 thereof. Counsel notified.”

The evidence disclosed that plaintiff had no interest in the truck in which he was riding and which was being driven by Walter James. It was owned by James’ nephew. It appears that James had a contract which called for the construction of about twelve concrete steps. He employed plaintiff to help, paying plaintiff an hourly wage. The steps had been put in and at the time the accident occurred James and plaintiff were returning to the premises in order to remove the boards which had been used in constructing the steps. There was no evidence of any partnership or joint venture between James and plaintiff. Under these facts it is clear that the trial court was justified in holding that there was no substantial evidence of plaintiff’s joint control of the truck and that the statements of defendant’s counsel were “prejudicially erroneous.”

It is the settled law that a trial court has a wide discretion in passing on a motion for new trial, and where such motion is sustained the appellate court will be liberal in upholding the trial court’s action. Wormington v. City of Overland, 224 S.W.2d 590, 591 (Mo.App.), and will only interfere where it is obvious that the trial court has abused its discretion. Bollinger v. Mungle, 175 S.W.2d 912, 916 (Mo.App.).

The court’s order sustaining the motion for new trial should be affirmed. It is so ordered. All concur.


text:
    In the Matter of LINDA -, a Minor, Pro Ami., Appellant.
    No. 23429.
    Kansas City Court of Appeals. Missouri.
    Oct. 1, 1962
    Motion for Rehearing as to Transfer to Supreme Court Denied Dec. 7, 1962.
    J. Arnot Hill, Kansas City, for appellant.
    Eugene P. Donnelly, Kansas City, for Mercedes M. Fichtner, guardian ad litem for Linda -.
   BROADDUS, Judge.

The mother of Linda-has appealed from the ruling made by the Jackson County Juvenile Court in proceedings brought under the Missouri Juvenile Act. The Court, after a full hearing, found that Linda “is a child under the age of seventeen years, and is in need of the care and services of the Court, and that the court has jurisdiction over said child under the provisions of Sect 211.031, R.S.Mo.1949, as amended, in that the environment of said Linda - is injurious to her welfare, in that she is frequently left alone nights as late as midnight.”

Pursuant thereto, the Court ordered: "That said Linda-be and she is committed to State Hospital No. 1, Fulton, Missouri, and that temporary custody of said child be and is placed in the Superintendent of State Hospital No. 1, Fulton, Missouri, until further order of the Court.”

Appellant in her brief contends that the Court erred in finding that said minor was a neglected child within the meaning of Section 211.031(1) (c), V.A.M.S., for the reason that there was no substantial evidence that the behavior, environment, or associations of the said minor were injurious to the welfare of others.

We are of the opinion that the action taken by the Juvenile Court was clearly within the spirit and the letter of the Juvenile Act and was for the best interest of the child and the State. The purpose of the Juvenile Act is set out in Section 211.011, V.A.M.S., as follows:

“1. The purpose of sections 211.011 to 211.431 is to facilitate the care, protection and discipline of children who come within the jurisdiction of the juvenile court. Sections 211.011 to 211.431 shall be liberally construed, therefore, to the end that each child coming within the jurisdiction of the juvenile court shall receive such care, guidance and control, preferably in his own home, as will conduce to the child’s welfare and the best interests of the state and that when such child is removed from the control of his parents the court shall secure for him care as nearly as possible equivalent to that which should have been given him by them.”

The one truth of paramount importance which emerges from the maze of testimony and evidence in this case is that Linda is mentally disturbed and needs help. If she were a normal child, her case could be reviewed in an altogether different light. But in her mental condition, as plainly reflected in her actions and the reports of Dr. Lytton and Dr. Preston, her environment was injurious to her welfare within the meaning of Section 211.031 of the Juvenile Act. The Juvenile Judge would have been remiss in the performance of his duties if he had failed to see that Linda received the care and treatment she required.

The point that appellant makes in her brief that the Juvenile Court lacked jurisdiction because it was not firmly established that Linda was “frequently left alone nights as late as midnight”, as alleged in the petition of the Juvenile Officer, is without merit. The transcript contains substantial evidence showing that Linda was left alone many nights until late hours. But the important thing is that Linda is a mentally ill child, and to leave her in the surroundings in which she was being raised would have been clearly injurious to her welfare.

Appellant’s brief admits that “It is understandable that the Juvenile Court acted in accordance with its belief as to what was best for the child”; but goes on to argue that she had not been aware that Linda had a mental condition and that the child’s mental illness is her problem, not the Court’s. She contends that the decision on treatment “should be hers to make”. We are of the view that had it not been for the intervention of the Juvenile Court in this case, Linda would not have received care and treatment for her condition. The testimony of Violet Mahan, appellant’s own sister, is very significant. Miss Mahan is a registered nurse, a graduate of Research Hospital in Kansas City. She said:

“I have the utmost respect for psychiatry of the present day and utterly respect the reports of the psychiatric examination here, and of Doctor Lytton, and what I have been told the evaluation of the overall aspects of the case from Menninger’s was. And in view of this I feel that for Linda’s future welfare and stability that it is most advisable that she should go to Fulton for further examination, as necessary, and treatment, and to get away from the home environment, which, perhaps, has contributed to it.”

The judgment should be affirmed. It is so ordered.

All concur.


author: SMITH, Justice.

text:
    Charlie E. McCARTNEY, Petitioner, v. AETNA CASUALTY & SURETY COMPANY, Respondent.
    No. A-8913.
    Supreme Court of Texas
    Dec. 5, 1962.
    Dixie & Schulman, Houston (Robert E. Hall and R. Shearn Smith, Houston, with firm), for petitioner.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Houston (L. S. Carsey and Blake Tartt, Houston, with firm), for respondent.
   SMITH, Justice.

This is a Workmen’s Compensation case. McCartney alleged in his petition that he had sustained permanent injuries to his left leg and to other portions of his body, including his side, back, and chest, and that as a result of the total effects of these concurrent injuries he sustained a loss of wage earning capacity compensable according to Section 11, of Article 8306, Vernon’s Annotated Civil Statutes. He alleged, in the alternative, that he sustained a partial permanent loss of use of his left leg, compensa-ble according to Section 12 of said Arti-ele. McCartney made it clear in his pleadings that he intended to seek recovery alternatively under said sections of the statute. The insurer, Aetna, on the other hand, made no mention in its pleading of any contention that McCartney’s disability was confined to his leg.

McCartney introduced evidence supporting each theory of recovery, and both theories were submitted to the jury. The only ultimate issue inquiring about “injury” was special issue No. 1. All subsequent issues have reference to special issue No. 1, which reads:

“Do you find from * * * the evidence that * * * McCartney sustained an accidental injury on or about October 13, 1958, * * *? The jury answered ‘Yes.’ ”

The Court defined the term “accidental injury” in its charge. Special issue No. 2 inquired:

“Do you find from * * * the evidence that such accidental injury * * * was a producing cause of any total incapacity to plaintiff, * * * ? The jury answered ‘No.’ ” (Emphasis added.)

The issue of partial incapacity was submitted to the jury by special issue No. 5, which reads:

“Do you find from * * * the evidence that such accidental injury * * * was a producing cause of any partial incapacity to plaintiff, * * * ? The jury answered ‘Yes.’ ” (Emphasis added.)

The Court submitted McCartney’s alternative theories of recovery in special issues 10-13 (total) and 14-18 (partial). In answer to special issue No. 10, the jury found that the accidental injury inquired about in special issue No. 1 was not a producing cause of the loss of use of McCartney’s left foot. However, in special issues No. 14 and 16, the jury found that such injury was a producing cause of partial loss of use of McCartney’s left foot [leg], and that the partial incapacity would be permanent.

The trial court entered judgment that McCartney recover compensation of $34.65 for 300 weeks, thereby sustaining McCartney’s theory that he was entitled to recover for the cumulative effects of his concurrent general and specific injuries on the basis of the jury’s answer to special issue No. 1 and other pertinent issues.

On appeal, the Court of Civil Appeals reversed and remanded the cause to the trial court, thus sustaining Aetna’s contention that special issue No. 1 was improperly submitted and that the answer thereto could not form the basis for the trial court’s judgment because it was impossible to determine whether the jury took into consideration the “general” injury to his back and side or only the “specific” injury to his leg in finding that the “accidental injury” was the producing cause of partial incapacity. 355 S.W.2d 264.

McCartney seeks to sustain the theory upon which this case was tried in the District Court which was that when an employee has received an injury to a specific member of the body, he is not confined to a recovery of the compensation specifically provided for such injury if he is able to allege and prove other injuries. He contends that the cumulative effect of his concurrent general and specific injuries resulted in a loss of wage earning capacity and also resulted in a partial loss of use to his left leg, and that under such circumstances, it was not necessary in support of this theory, for him to seek jury answers establishing the incapacity which resulted from each of his concurrent injuries.

Aetna objected to special issue No. 1 of the Court’s charge on the ground that it submitted in general terms the question of “accidental injury” without limiting the inquiry to a specific type of injury or an injury to a specific part of the body. Aetna contends that such form of submission was harmful, particularly in view of the fact that McCartney claimed a specific injury to the leg and that since such issue was submitted separately to the jury,

“to submit special issue in the form contained therein will allow the jury to find that an accidental injury occurred, even though the jury believed that the injury sustained was only a specific injury, and then thereafter [the jury] could find’ that such specific injury which is not specifically named in special issue No. 1, caused total incapacity or partial incapacity which was permanent.”

Aetna also contended in its objections to the Court’s charge that special issue No. 1 should have been limited

“in its words to whether McCartney sustained an injury to the part or parts of his body which he claimed in his pleadings and the evidence shows, other than to the specific member, or even including such specific member.”

The Court of Civil Appeals cites the case of Texas General Indemnity Company v. Scott, 152 Tex. 1, 253 S.W.2d 651 (1952), in support of its holding that the trial court’s action in overruling Aetna’s objections to the charge was error. In that case, the issue to be decided by this court was whether or not the trial court should have submitted the defendant’s requested special issues seeking jury findings that Molinda Scott’s incapacity was “caused solely” by the “incapacity, if any, to her left foot.”

The insurance carrier pleaded and requested a special issue on its affirmative defense, to-wit, that the incapacity, if any, suffered by plaintiff was caused solely by the incapacity, if any, to her left foot. The Court, with the apparent approval of Scott, submitted her case to the jury by inquiring whether Scott sustained an accidental injury, (a) to her foot, (b) to her neck. It was this form of “accidental injury” issue which effectively deprived Scott of her right to have the jury consider the combined, cumulative, unsegregated effects of her general and specific injuries in assessing her incapacity according to the general injury sections of the Workmen’s Compensation Law. See Consolidated Underwriters v. Lowrie, Tex.Civ.App., 128 S.W.2d 421 (1939), wr. ref.

The Scott case was submitted in such a manner that the jury answers afforded no basis for a judgment by the Court. Whereas, the present case was submitted properly to the jury, and the affirmative answers of the jury afforded the basis for a judgment in McCartney’s favor for the reasons now to be stated. The jury found that McCartney sustained an accidental injury in the course of his employment. As a result of the total effects of the concurrent injuries McCartney sustained, the jury found that he had sustained a loss of wage earning capacity compensable according to Section 11 of Article 8306, supra. The jury also found that McCartney had sustained a partial-permanent loss of use to his left foot [leg]. This finding would have supported a judgment under the provisions of Section 12, the “specific” injury section of Article 8306, supra. However, the Court properly-entered judgment in favor of McCartney for the largest sum recoverable under the verdict of the jury.

The fact that “specific” injury issues were submitted to the jury does not render inapplicable the rule heretofore announced by this court that there is no necessity of submitting to the jury specifically alleged injuries where the claimant sought damages for total and permanent disability. In principle, we have the same situation as confronted the Court in Southern Underwriters v. Parker, Tex.Civ.App., 129 S.W.2d 738 (1939), wr. ref. This case was approved by this court in the case of Southern Underwriters v. Boswell, 138 Tex. 255, 158 S.W.2d 280 (1942), and again in the case of Maston v. Texas Employers’ Insurance Association, 160 Tex. 439, 331 S.W.2d 907 (1960). The reasons for the holdings in the Boswell case are set out in the opinion, and quoted with approval in the Maston case. The reasons will not be again repeated.

In a case such as this, it is sufficient to say that if the insurer desires to limit the claimant’s recovery to the compensation recoverable under the provisions of Section 12 or seeks to otherwise separate the effects of general and specific injuries, the burden rests with the insurer to either request appropriate special instructions to the jury, in connection with the general injury issue, or plead, prove and secure jury findings so limiting the claimant’s recovery. Since Aetna has failed to do either, it cannot now complain of the judgment entered by the trial court under the provisions of Section 11, supra. See United Benefit Fire Insurance Company v. Stock, Tex.Civ.App., 344 S.W.2d 941 (1961), no wr. hist.; Matthews v. General Accident Fire and Life Assurance Corporation, 161 Tex. 622, 343 S.W.2d 251 (1961) ; Rule 279, Texas Rules of Civil Procedure.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

      . “Sec. 11. While the incapacity for work resulting from the injury is partial, the association shall pay the injured employee a weekly compensation equal to sixty per cent (60%) of the difference between his average weekly wages before the injury and his average weekly wage earning capacity during the existence of such partial incapacity, but in no case more than Thirty-five Dollars ($35) per week. The period covered by such compensation shall be in no case greater than three hundred (300) weeks; provided that in no case shall the period of compensation for total and partial incapacity exceed four hundred and one (401) weeks from the date of injury. Compensation for all partial incapacity resulting from a general injury shall be computed in the manner provided in this Section, and shall not be computed on a basis of a percentage of disability.”

      . “Sec. 12. * * *
      “For the loss of a leg, at or above the knee, sixty per cent (60%) of the average weekly wages during two hundred (200) weeks.”

      .“By the term ‘Accidental injury’, as used in this charge is meant an unintentional or unexpected occurrence or mishap causing damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom. This damage or harm to the physical structure of the body may include incitement, acceleration, or aggravation of any disease or condition previously or subsequently existing.”

      . “SPECIAL ISSUE NO. 10 Do you find from a preponderance of the evidence that such accidental injury, if any, was or will be a producing cause of loss of use of Charlie E. McCartney’s left foot?”

      . “SPECIAL ISSUE NO. 14 Do you find from a preponderance of the evidence that such accidental injury was or will be a producing cause of any partial loss of use of Charlie E. McCartney’s left foot?”


author: WOODLEY, Presiding Judge.

text:
    Guadalupe Morales MENDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 34921.
    Court of Criminal Appeals of Texas.
    Nov. 7, 1962.
    Rehearing Denied Jan. 2, 1963.

      C. C. Divine, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Gus J. Zg'ou-r-ídes and Howell E. Stone, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The appeal is from a SO year sentence assessed by the jury following trial upon indictment alleging the unlawful possession of heroin and a prior conviction for possession of marijuana.

The prior conviction, in the same court in which the present indictment was returned, was shown by records of the Texas Department of Corrections including certified copies of the judgment and sentence and finger prints; and appellant’s identity as the person so convicted was shown by the testimony of Officer E. G. Knowles, finger print classifier and expert in that field, who compared said prints with finger prints he had taken of the appellant and testified that they were finger prints of the same person.

Officers who had a warrant for appellant’s arrest, being informed as to his whereabouts, went to No. 3 Fox Courts in Harris County. As the officers approached, appellant, who was standing on the porch, turned and ran into the house. Three of the officers ran to the rear of the house and saw appellant running out the back door. As the officers “rounded” the corner of the house, appellant turned and ran back into the house. The officers pursued him into the house and observed appellant pull out of his pants pocket a cellophane package, which he attempted to place in his mouth. “His hands were blocked” by the officers, however, and the package fell to the floor. It was picked up by the officers and thereafter its contents were analyzed by Mr. McDonald, chemist and toxicologist for the City of Houston, who testified that the package contained 10 capsules each containing one grain of 29 per cent pure heroin. The cellophane paper and capsules identified by Officer Chavez and Mr. McDonald were introduced in evidence at the trial.

Appellant offered no witnesses at the trial, nor did he testify.

We find the evidence sufficient to sustain the conviction.

Appellant filed a motion for change of venue supported by the affidavit of two compurgators to the effect that District Attorney Briscoe “has been reported by Television and Radio newsreporters and by all of the three Houston newspapers both by story and photographs that Guadalupe Morales Mendez was a person charged with an offense in Harris County and was one of twelve he most wanted to convict and most wanted to see in the penitentiary, by reason of which the Defendant Guadalupe Morales Mendez, cannot, we think, reasonably expect a fair trial of said cause in this Harris County.”

We do not construe the averment quoted as showing, if true, that either of the grounds which require a change of venue existed.

The court heard evidence which is before us in a separate statement of facts and overruled the motion, but no exception to such ruling was reserved. In the absence of an exception, the action of the court in overruling appellant’s motion for change of venue is not properly before this Court for review. Castaneda v. State, 170 Tex.Cr.R. 323, 340 S.W.2d 489, and the cases therein cited.

In any event, there was no showing that any prejudice found its way into the jury box upon the trial of appellant’s case. Moon v. State, 169 Tex.Cr.R. 14, 331 S.W.2d 312; Philpot v. State, 169 Tex.Cr.R. 91, 332 S.W.2d 323.

No objection to the court’s charge or requested charges being filed, appellant’s complaints as to the charge are not before us for review.

Appellant’s complaint that he was compelled to incriminate himself by submitting to the taking of his finger prints, for comparison with prints of the person previously convicted for possession of marijuana, is without merit. McGarry v. State, 82 Tex.Cr.H. 597, 200 S.W. 527.

The contention that the evidence as to the possession of heroin, and the heroin, was obtained as the result of an unlawful search is overruled. The officers had a warrant for appellant’s arrest. When appellant fled the officers had the right to pursue him. Recovering the package they saw fall from his hand to the floor did not constitute a search. Robles v. State, 168 Tex.Cr.R. 617, 330 S.W.2d 454; Slaughter v. State, 166 Tex.Cr.R. 403, 314 S.W.2d 92; Garcia v. State, 163 Tex.Cr.R. 146, 289 S.W.2d 766;. Robinson v. State, 163 Tex.Cr.R. 499, 293 S.W.2d 781; Lopez v. State, 171 Tex.Cr.R. 672, 352 S.W.2d 747.

If it may be said that the evidence was-obtained as a result of a search, it was ai search incident to a lawful arrest under ai warrant, and not an unlawful search. Ferguson v. State, 133 Tex.Cr.R. 250, 1101 S.W.2d 61.

The remaining claims of error have beery considered and are overruled.

The judgment is affirmed.


author: McDonald, judge.

text:
    Marjorie Jean GILFORD et al. v. The STATE of Texas, Appellee.
    Nos. 34709, 34710.
    Court of Criminal Appeals of Texas.
    Oct. 31, 1962.
    Rehearing Denied Jan. 2, 1963.

      C. C. Divine, Houston, for appellants.
    Henry Wade, Dist. Atty., Emmett Colvin and James M. Williamson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

This is a consolidated appeal by Marjorie Jean Gilford, appellant-principal, and C. C. Divine and H. G. Divine, appellant-sureties, from final judgments of bail bond forfeitures in two cases rendered against them in the Criminal District Court No. 3 of Dallas County, Texas.

Appellants, by brief and oral argument, urge twelve contentions as error.

It is the contention of appellants, defendant-sureties, that although they admit executing the bail bonds, they seek to relieve themselves from liability thereon by alleging subsequent material alterations therein. Appellants filed a plea of non est factum in the trial court along with some special exceptions which were overruled by the trial court. The record reflects that the sureties resided in Harris County, Texas, and that they executed the bail bonds there. The forms of bail bonds were presented to the sheriff of Harris County, who certified as to the solvency of such sureties.

The accused-principal was at this time confined in the Dallas County jail by reason of felony complaints filed in Justice of Peace Court, Precinct 1, Place 2, of Dallas County. The principal amounts of the bail required and the court in which the accused must bind herself to appear had not been then set or determined by the proper officials of Dallas County, wherein such felonies were alleged to have been committed. At the time of the execution of the bail bonds by the sureties in Houston, the blank spaces provided in the forms of bail bond used in the instant cases for the insertion of the principal amounts of the bonds and for the insertion of the name of the court to which the accused-principal must bind herself to make her appearance were not filled out but were left blank.

The testimony of C. C. Divine reflects that he was a Houston attorney and that Rex Emerson was an associate attorney. It was Mr. Divine’s testimony that he and his brother, H. G. Divine, were both in Houston on the date of the approval of the bail bonds, but he said: “I did have an attorney, associate attorney, who was of-ficing there, by the name of Rex Emerson.” The evidence reflects that Mr. Emerson’s name was on the front of the bond, not as a surety, but apparently as the attorney in the case. The evidence is uncontrovert-ed that the bail bonds as introduced in evidence were in exactly the same condition as to form and wording as they were at the time such bail bonds were presented to O. H. Shields, Deputy Sheriff of Dallas County, for approval, and were officially approved by him. The bonds were introduced in evidence and are brought forward as exhibits with the statement of facts. The wording: “Seven Hundred & Fifty ($750.00)” [Dollars] is written in longhand in pen and ink, in both bonds. One bond has written in, in longhand: “Forgery and Attempt to Pass,” and the other bond has written in, in longhand: “Forgery and Passing.” The wording: “Criminal District Court of Dallas County” is written in, in longhand, in both bonds.

We hold that in cases like this, where the defendant-sureties admit they executed the bail bonds containing blank spaces, the completion of the bail bonds by properly filling in such blank spaces with necessary and proper information is not an alteration of such bail bonds and the bonds are enforceable as so filled out. Gary v. State, 11 Tex.App. 527-531, Syl. 2; National Union Fire Ins. Co. v. Peck et al., Tex.Civ.App., 296 S.W. 338, Syl. 6 and 7, p. 341 (Writ dismissed) ; Perkins v. Commonwealth of Kentucky, Ky., 352 S.W.2d 551, Syl. 4, p. 552, citing Gary v. State, supra.

Appellants also contend that the bail bonds were not witnessed, acknowledged, or sworn to. Art. 273, Vernon’s Ann.C.C.P., is authority for a bond to be sufficient without being witnessed or acknowledged.

We have carefully examined all the other contentions made by appellants, and we find no merit in them.

The two respective judgments of the trial ■court are affirmed.