author: MAUGHMER, Commissioner.

text:
    ALBERT PIPE SUPPLY CO., Inc., Appellant, v. SHARP BROS. CONTRACTING COMPANY, Respondent.
    No. 24635.
    Kansas City Court of Appeals. Missouri.
    April 3, 1967.
    Motion for Rehearing or Transfer to Supreme Court Denied June 5, 1967.
    Sherman L. Gibson, Rope, Shanberg, Rope & Gibson, Kansas City, for appellant.
    Thomas J. Leittem, John H. Altergott, Jr., Shughart, Thomson & Kilroy, Kansas City, for respondent.
   MAUGHMER, Commissioner.

Plaintiff, Albert Pipe Supply Company, Inc., is a New York Corporation. On August 14, 1962, it filed suit in the Circuit Court of Jackson County, Missouri against the defendant, Sharp Bros. Contracting Company, a Missouri corporation. The suit was captioned “Petition on Account” and prayed for judgment in the amount of $6,388.03, with interest from April 4, 1961. At the time of trial, which began on June 8, 1966, the recovery amount sought was reduced to $5,474. Trial to a jury resulted in a verdict and judgment for defendant. Plaintiff’s motion for new trial was overruled and it has appealed, assigning as the sole ground of error that the trial court erred in overruling its motion for directed verdict at the close of all of the evidence.

Plaintiff is a fabricator of alloys and stainless steels. Defendant is a general contracting company and in 1961, its principal owners and operators were Ray W. Sharp, father, and his son, Don E. Sharp, president. A second son and brother, Raymond D. Sharp, lived in New York City and headed a contracting company in that city, the corporate name of which was R. D. Sharp & Sons. This last mentioned corporation in March, 1961, entered into a contract with Hudson River Harbor Corporation, to build a marina (a place where boats, yachts and other craft may be docked) on the Hudson River in New York City. A part of the construction thereof required the fabrication of steel pipes and plates for use in making pontoons. For this particular fabrication job Raymond D. Sharp, the New York brother, got a firm bid or quotation from plaintiff and agreed to subcontract this work to plaintiff. It appears that Raymond’s company was not very strong financially and had no approved credit rating in Dun and Bradstreet. Plaintiff was hesitant in extending credit to his company without further credit safeguards. The Kansas City company, defendant herein, with which Raymond of New York City had no business connection, carried an approved credit rating in Dun and Bradstreet. Raymond presented the problem to his father and brother in Kansas City. He first did this by long distance telephone and then personally a few days later, when he came to Kansas City for the purpose of attending a celebration honoring the 50th wedding anniversary of his parents. He brought with him the price quotations from plaintiff, the main items of which were $6.10 per foot on pipe and $9.50 on the plates. The Kansas City Sharps were unwilling to or at least did not advance any cash to him. The defendant company did, however, draw up and sign a written agreement captioned “Sub-contract”. We set forth the first page thereof:

“Contract No. #1011 SUBCONTRACT

“This Contract between Sharp Bros. Contracting Company, a Corporation, called the General Contractor and ALBERT PIPE CO., 101-105 Varick Avenue, Brooklyn 37, N. Y. called the Sub-Contractor made this 24th day of March, 1961.

“Whereas, the General Contractor has been engaged to do the following work:

79th St. Marina Inc.

according to plans and specifications prepared by 79th St. Marina Inc. Architects and/or Engineers.

“Whereas the Sub-Contractor is willing and desires to undertake, to subcontract and be responsible for the following work: Furnish only 860' of 26" pipe ⅛" wall casing, and 24⅜" plates 27" in diameter, all according to plans, specifications and addendas on this project and at the following unit prices:

860' of 26" diameter %s" wall pipe @ $6.10 per ft. $5,246.00

24 plates 27" diameter ⅜" thick @ $9.50 per ft. 228.00

$5,474.00

“Now, therefore in consideration of the payment by the General Contractor to the Sub-Contractor of the total sum of $ Five thousand four hundred seventy four & no/100 dollars ($5,474.00) Dollars including all taxes, if any, to be paid according to the specifications, the Sub-Contractor hereby contracts and agrees to do all things necessary to perform the work described above, in accordance with and subject to the aforesaid plans and specifications and requirements thereby imposed upon the General Contractor and the Sub-Contractor will hold the General Contractor harmless, in all ways as to the work covered by the undertaking. There shall be

no additions or deletions to the above unless agreed to in writing. The above contract is subject to conditions on the reverse side. (Italics supplied.)

Stamped thereon is the following:

“THIS SUB-CONTRACT MUST BE SIGNED AND RETURNED WITHIN 30 DAYS FROM DATE HEREON; OTHERWISE SUB-CONTRACT WILL BE NULL AND VOID.

SHARP B ROS. CONTRACTING CO.”

It should be noted that this proposed agreement or subcontract was signed “Sharp Bros. Contracting Co. by D. E. Sharp” and a place was provided for the signature of plaintiff, Albert Pipe Company.

This subcontract agreement, signed by the president of the defendant company, was either mailed direct to plaintiff, or more likely under the evidence, was given to the New York brother Raymond who, in turn, delivered it to plaintiff. It appears that plaintiff company fabricated the materials and the marina was at least partially completed but Raymond Sharp’s company was unable to or did not pay its liability under the marina contract. Plaintiff company attached an automobile and levied on some funds payable under the contract which still remained with the Hudson River Authority and thereby realized some payment on the account of Raymond’s company. The facts recounted so far are not disputed. The evidence hereinafter described is disputed in whole or in part.

Plaintiff received a purchase order dated March 23,1961, for this same material on a Sharp Industries, Inc. printed form and signed by one Charles A. Johnson. Sharp Industries, Inc. had been formed in the ’50s to perform a government contract in Labrador. That job had been completed and the company had been closed out. All the testimony on the subject (from Raymond and Don Sharp) was that Johnson had no authority whatsoever to sign or issue any such purchase order.

Plaintiff’s vice-president, Edward E. Sel-ter, and its executive vice-president, Sidney G. Albert, each testified that they had telephone conversations with Don E. Sharp in which he verbally agreed to underwrite the activities of his brother Raymond in this whole matter. They contended there were six or seven such conversations. Don E. Sharp stated he never talked with Selter and only twice with Sidney G. Albert. In any event, it is agreed that plaintiff raised the prices for the plates from $9.50 to $13.50 per foot and in addition, included freight charges from Pittsburgh to New York and New York City sales tax, all of which raised the total bill from $5,474 (shown on the subcontract) to $6,388.03 and this was discussed in the telephone conversations. Mr. Don E. Sharp says his company never ■did receive the signed subcontract from plaintiff although he said Mr. Albert, in the telephone conversations, assured him it had been signed and mailed. Both Mr. Albert and Mr. Selter asserted that the subcontract had been signed and sent, although that company’s copy, which was received in evidence, does not contain notations that it had been signed or mailed and in addition, markings were placed thereon indicating the increased prices. Under date of April 26, 1961, defendant company, over the signature of D. E. Sharp, president, sent the following letter to plaintiff. Mr. Sharp said this letter was written in the belief and in reliance upon plaintiff’s assurance that the subcontract had been signed and mailed to him.

“April 26, 1961

“Albert Pipe Co.

101-105 Varick Avenue Brooklyn 37, N. Y.

Re: Contract No. #1011 dated 3/24/61

“Gentlemen:

“With reference to your telephone call of April 24th, we are hereby notifying you that we have authorized no increase on the above reference contract price of $5,474.00, and therefore will not be responsible for any sums of money over and above the amount of $5,474 as set out in referenced contract.

Yours very truly,

SHARP BROS. CONTRACTING CO. /s/ D. E. SHARP D. E. Sharp

DES :pmb”.

Mr. Selter testified that the pipe had been delivered to the Raymond Sharp Company •on the job in New York City by “April 17, 1961 or within a day or two of that date”.

The jury was instructed to find for plaintiff if (1) “You believe that plaintiff mailed a signed, unaltered sub-contract form to defendant within thirty days of March 24, 1961” or (2) “If you believe that defendant’s letter of April 26, 1961, acknowledged his liability as a guarantor”. The converse of these instructions were also given. No complaint has been registered on appeal as to the instructions. Appellant’s sole assignment of error is that the court erred in refusing its motion for directed verdict. It bases such conclusion upon two theories: First, “that defendant, by its letter of April 26, 1961, indicated that defendant considered itself irrevocably bound for the sum of $5,474.00”. Second, “All the evidence showed that a guarantor relationship existed, that in reliance upon said (same) appellant extended credit and shipped the merchandise involved and that the liability of defendant under the contract of guaranty was proved as a matter of law”.

Appellant cites authority for the proposition that a guarantor may waive his right to notice of acceptance of the guaranty. 38 C.J.S. Guaranty § 14; Texas Co. v. Stanberry, Mo.App., 165 S.W.2d 696, 700; Industrial Bank & Trust Co. v. Hesselberg, Mo., 195 S.W.2d 470, 473, 474. Such a principle is.generally recognized. The waiver of notice may be expressly provided for as in the Hesselberg case, or it may be inferred from the guarantor’s acts or declarations or from his acknowledgment of his liability. The Supreme Court (page 473) in Hesselberg said this: “In an instance where there has been but an offer or proposal to guarantee the performance of an undertaking of another, there is no contract until the offer is accepted. This is the rule as to contracts generally”. Examination of Texas Co. v. Stanberry, supra, cited by appellant, reveals that plaintiff’s motion for directed verdict was denied, the jury verdict and judgment were for defendant and this court affirmed on appeal.

Appellant says the evidence all showed existence of a guarantor relationship. We believe defendant did by its signed subcontract offer to become the principal contractor for specified materials under a specific part of Raymond D. Sharp’s contract, but for only the written proposed contract price of $5,474.00 and with certain restrictions or limitations specified in writing therein, namely, if the offer be accepted within thirty days, if the amount included all taxes and if there were “no additions or deletions” unless agreed to in writing. Plaintiff did attempt to increase the price provided, charge sales tax and add freight. There was a factual dispute under the evidence as to whether or not plaintiff signed and returned the subcontract. This fact issue was for determination of the jury. It was submitted to that body and the finding was against plaintiff’s contention.

Did plaintiff extend the credit because of defendant’s offer of the subcontract? We believe it did in the beginning, but plaintiff did not comply with or bring itself within the terms of defendant’s written offer to guarantee a part of the marina contract (Subcontract dated March 24, 1961). Did the letter of April 26, 1961, acknowledge defendant’s liability for $5,-474.00 in spite of plaintiff’s noncompliance with the subcontract offer? Defendant’s president testified that the letter was written under the assurance of plaintiff’s vice-president, Mr. Albert, that the subcontract had been signed and mailed. The letter squarely denied liability for more than $5,-474.00 and specifically refused to accept responsibility for $6,383.03, which plaintiff was orally claiming by telephone and in writing by billing defendant for that amount. In fact, plaintiff continued until June 8, 1966 to assert defendant was liable for the full amount. The question as to whether or not this letter of April 26, 1961, under all the circumstances, acknowledged defendant’s liability was resolved by the jury in favor of defendant.

Plaintiff invites our attention to Rich and Rubin v. Clayton Mark & Company, 8 Cir., 250 F.2d 622, and to N. O. Nelson Mfg. Co. v. Shreve, 94 Mo.App. 518, 68 S.W. 376. The facts in Clayton Mark, ruled sufficient to establish a guarantor status, are quite different from those in the case before us. Rich and Rubin, the guarantors, wrote the supplier a letter stating that they would provide “adequate financing”, “in furtherance” of the guaranteed contract. They took an assignment from the supplier and set up a special bank account covering the whole matter. The suit was tried to the court with a' finding for plaintiff and a holding that specific notice of acceptance under those circumstances was not necessary. In the Nelson case notice was not required where a father generally guaranteed his son’s open account with a particular store.

We are unable to conclude that plaintiff was entitled to a directed verdict as a matter of law. Certainly it was not so entitled under the subcontract offer unless it was accepted unamended, signed and returned to defendant within the required thirty days. In its reply brief plaintiff argues strenuously that there is no evidence contradicting appellant’s contention that the subcontract was signed and mailed to defendant. We disagree with this statement. Defendant’s president said it was never received, plaintiff’s written records nowhere indicated it had been mailed or signed, and admittedly plaintiff for at least five years, asserted that defendant owed not $5,474.00, the amount provided for in the subcontract, but $6,383.03. This disputed fact issue was properly submitted to the jury. It is further our opinion that the letter of April 26, 1961, cannot be ruled to establish defendant’s liability as guarantor, as a matter of law, for $5,474.00. It depends upon all these surrounding circumstances and we believe that these surrounding circumstances in the instant case made the issue one for the jury.

No other assignment of error having been made, 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.


source: Caselaw Access Project

author: BLAIR, Judge.

license: Public Domain

text:
    William DOWNS, Respondent, v. DURBIN CORPORATION, and United States Fidelity & Guaranty Co., Appellants.
    No. 24552.
    Kansas City Court of Appeals. Missouri.
    Feb. 6, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 3, 1967.

      Watson, Ess, Marshall & Enggas, Samuel J. Molby, Vincent E. Rawson, Clayton R. Smalley, Kansas City, for appellants.
    Knipmeyer, McCann & Millett, William R. Fish, Kansas City, for respondent.
   BLAIR, Judge.

This is an appeal from a judgment of the Circuit Court of Jackson County affirming an award of $13,728.25 made by the Industrial Commission to William Downs against appellants, Durbin Corporation and United States Fidelity & Guaranty Co., its insurer. The single question presented by this appeal is whether the claimant’s injuries arose out of and in the course of his employment.

Our review is limited to determining whether the commission could have reasonably based its award on the evidence before it. If there is competent and substantial evidence on which the commission bases an award and if it is not contrary to the law or clearly contrary to the overwhelming weight of the evidence, courts are bound to affirm it, and, in these circumstances, they have no authority to substitute their views for those of the commission on the credibility of the witnesses or to interfere with its action because it chose to believe the evidence supporting its award and rejected the evidence militating against it, even though reviewing courts might hold a different view on the record. Greer v. Missouri State Highway Department, Mo.App., 362 S.W.2d 773, 778; Schmidt v. Rice-O’Neill Shoe Co., Mo.App., 226 S.W.2d 358, 362; Thacker v. Massman Const. Co., Mo., 247 S.W.2d 623, 627. “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.” Greer v. Missouri State Highway Department, supra; Smith v. Terminal Transfer Company, Mo.App., 372 S.W.2d 659, 661.

Appellants do not assert that the findings and award of the commission are clearly contrary to the overwhelming weight of the evidence and that question is not in this case. What they do assert is that the findings and award are not supported by competent and substantial evidence which meets the requirements of the legal theories applied by the commission. This leaves for our determination only the question whether competent and substantial evidence warrants the commission’s finding that claimant’s injuries arose out of and in the course of his employment and justifies the award it made under the law it deemed applicable. It ruled that its findings and award were supported by competent and substantial evidence under the dual purpose and mutual benefit doctrines. If competent and substantial evidence does support its findings and award under either doctrine, it will be unnecessary for us to determine whether its findings and award are supported under both doctrines. Determining the sufficiency of the evidence we must apply the familiar rule that requires us to look only to the evidence most favorable to the award, together with all reasonable inferences flowing from that evidence and tending to support the award, and to disregard all opposing and unfavorable evidence and inferences, even though an award by the commission to the contrary would have been supported by the evidence. Greer v. Missouri State Highway Commission, supra; Schmidt v. Rice-O’Neill Shoe Co., supra; Smith v. Terminal Transfer Co., supra. We first examine to determine whether the award is supported under the dual purpose doctrine.

Following the guidelines we have declared to be applicable on this review, we set forth the evidence relied on by the commission to support its findings and award under the dual purpose doctrine. The evidence is not complex. Checking the statements of facts in the briefs of the parties against the record we discover that both have been commendably fair in reciting the evidence for us. Virtually there is no disagreement about it. There is no dispute that the employer, Durbin Corporation, was under contract in the summer of 1960 with Crown Zellerbach Company to dismantle and remove from the premises of its Waxide Division at 20th and Tracy. Streets, Kansas City, Missouri, all of its fixtures and equipment, as well as certain materials. Durbin Corporation maintained a crew of workmen at the Waxide Division which was supervised for it by Sam Dubinsky, its vice-president. Waxide Division had two employees present to supervise the operation for it.

The claimant was employed by Louis Durbin, President of Durbin Corporation, in early August of 1960 as a member of its crew of workmen at Waxide. His primary duty was operating an acetylene cutting torch in the dismantling of machinery, pipe and other materials located in the interior of Waxide. Claimant did not live in Kansas City. He lived in Sibley, Missouri. He owned a Ford truck. Daily he traveled in this truck from his home in Sibley and reported for work at the office of the Durbin Corporation, 10th and Hardesty Streets, Kansas City, at 8 A.M. He “punched” the time clock on arrival and then he and other employees loaded acetylene tanks on his truck and together they drove to Waxide some five miles distant. Claimant and his fellow employees normally would work at Waxide until 4— 4:15 P.M. Then they would load on his truck any empty acetylene tanks and sometimes other materials and return them to the Durbin Corporation premises. Arriving at the premises they would unload and “punch out” on the time clock.

The Durbin Corporation gates were locked daily at 4:30 P.M. and if claimant, as occasionally happened, arrived at Dur-bin after that time he would be unable to enter the premises. His fellow employees would alight from the truck and go their separate ways. Then he would drive to his home in Sibley with the acetylene tanks and sometimes other materials still on his truck and he would return them to Dur-bin the next morning when he reported there for work at 8 A.M.

Claimant testified that he had no settled understanding as to what he would be paid by Durbin Corporation for transporting his fellow employees, the acetylene tanks and other materials in his truck, but he did testify that Louis Durbin the corporation’s president, promised to compensate him for this service and from time to time would pay him money in discharge of this promise.

Claimant testified that three or four days before sustaining his injuries he asked Sam Dubinsky, Durbin Corporation’s vice-president, to give him some of the lumber being removed from the Waxide premises. He was “building or planning to build on a room” at his home in Sibley. Sam Du-binsky told him he could have some of the lumber, but Louis Durbin, the Durbin Corporation’s president, who held final authority over Durbin Corporation, countermanded the permission granted by Dubinsky and told claimant that he could not have any of the lumber. Claimant testified he never took any of the lumber for his own purposes. “He (Louis Durbin) is the boss, and when he tells you something, that is it. Nobody changes Louis Durbin.” On the date of the accident lumber was still being removed from the Waxide premises and that day it had been loaded on a number of small hand carts which were the property of Waxide. Dubinsky discovered that the carts were loaded with the lumber and that the Waxide employees would require their use for other purposes early the next morning. Shortly before quitting time, Dubinsky told claimant to unload the lumber from the hand carts, put it on his truck, take it to his home in Sibley and deliver it to the Durbin Corporation the next morning. Claimant agreed to do as Du-binsky directed. The record is clear that he did not have enough time to remove the lumber from the hand carts and load it on his truck and thereafter reach the Durbin Corporation in time “to punch out” on the time clock. Therefore, he first returned to the Durbin Corporation premises, punched out on the time clock, ate dinner, and then returned to the Waxide premises. With the assistance of two Crown Zellerbach employees he loaded the lumber, about 800 or 900 feet, on his truck and then he started his drive to his home in Sibley. However, he had driven only two blocks from the Waxide premises when his vehicle collided with another and he sustained his injuries.

There was other testimony that Durbin Corporation, under its contract with Crown Zellerbach, had the duty to dismantle and remove all “excess” equipment, fixtures and other materials from the Waxide premises, including lumber, which Crown Zel-lerbach elected not to retain for itself. The testimony and reasonable inferences are that the lumber Dubinsky directed claimant to load on his truck and to take to his home in Sibley and deliver to Dur-bin Corporation the next morning was lumber that Crown Zellerbach elected not to retain for itself and was lumber that Dur-bin Corporation was responsible for removing from the Waxide premises. If claimant had not removed this lumber from the Waxide premises that night, the Dur-bin employees would, in any event, have had to remove it from those premises at some later time.

There was some other evidence corroborating claimant’s version of the facts. There was other evidence presented by appellants conflicting with claimant’s version and supporting appellants’ version that the lumber was actually given to him by Sam Dubinsky for his own use and that he was hauling it for his own personal purposes, and not for Durbin Corporation, at the time he sustained his injuries. We notice that Louis Durbin, Durbin Corporation’s president, testified at the hearing before the referee. His testimony established beyond any doubt that Sam Dubinsky was still alive and still its vice-president. Dubinsky was not presented by appellants as a witness and no explanation was given for his absence. The failure of appellants to present him as a witness or to explain his absence authorized the commission to draw the inference that his testimony would have been contrary to their version of the facts and consistent with claimant’s. Farr v. Manzella, Mo.App., 362 S.W.2d 752, 755; 12 Mo.Digest, Evidence,

The commission, as the trier of the facts, chose to believe claimant’s version of the facts. This it had the right to do. In these circumstances, .as we have observed, we have no authority to substitute our views for those of the commission on the variances between the testimony of the different witnesses or to interfere with the action of the commission because it chose, on the aggregate evidence, to adopt the evidence it regarded as supporting its award and to reject the evidence militating against it, even though the record might lead us to rule differently if we were free to rule as we chose.

The general rule is that the hazards encountered by employees while going to or returning from their place of work, and before reaching or after leaving their place of work, are not ordinarily regarded as incident to their employment, and for this reason, injuries resulting from such hazards are in most instances held not to be compensable as injuries arising out of and in the course of their employment. However, this general rule is subject to some exceptions and one of them is the dual purpose doctrine. This doctrine has been adopted and applied in this state. Gingell v. Walters Contracting Corporation, Mo.App., 303 S.W.2d 683; Corp v. Joplin Cement Company, Mo., 337 S.W.2d 252; Kammeyer v. Board of Education, Mo.App., 393 S.W.2d 122.

In Gingell, decided by this court, the employee lived in Kansas City, Missouri. He was employed at an Air Force Base approximately 60 miles from Kansas City. On the day in question he drove from Kansas City to the Air Force Base and reported for work. It was raining and the employer’s superintendent advised all employees that there would be no work that day and that they should report for work the following morning. The superintendent inquired if any employee was going to Kansas City. Gingell replied that he was and the superintendent asked him to “pick up some tarpaulins at Kansas City and bring them back the next day.” Gingell said he would. At the same time another employee stated that he desired to return to New York that afternoon and asked Gingell if he would take his two bags to the airport in Kansas City and check them in his name. Gingell agreed to do this. While driving from the Air Force Base to Kansas City he met with an accident and sustained.his injuries. We pointed out that it was “clear that Gingell had completed his regular employment at the Air Base; and that the contemplated return trip to his home in Kansas City would have been (solely) for his own convenience”, except that he was to pick up the tarpaulins in Kansas City for return to the Air Base the next morning and to check the baggage of the employee.

We ruled that Gingell’s injuries arose out of and in the course of his employment and were compensable under the dual purpose doctrine. We examined Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181, opinion by Judge Cardozo, a landmark case on this doctrine, and we construed this doctrine, in the light of it, as our Supreme Court has construed it before and since. O’Dell v. Lost Trail, Inc., 339 Mo. 1108, 100 S.W.2d 289, 293(5) and McMain v. J. J. Connor & Sons Const. Co., 337 Mo. 40, 85 S.W.2d 43, 44; Corp v. Joplin Cement Co., Mo., 337 S.W.2d 252, 255.

Elaborating, we also said in Gingell “Some of the decisions have construed this doctrine to be applicable only when the primary purpose of the trip is on the employer’s business, or sometimes referred to as the ‘dominant purpose’ test. Judge Cardozo used no such language. He said it was sufficient if the business motive was a concurrent cause of the trip. He then defined ‘concurrent cause’ by saying that it meant a cause which would have occasioned the making of the trip even if the private mission had been cancelled. As we understand this formula, it is not necessary that, on failure of the personal motive, the business trip would have been taken anyway by this particular employee at this particular time. It is enough that some one would have had to make the trip to carry out the business mission. If the trip would ultimately have had to be made, and if the employer got this necessary item of travel accomplished by combining it with the employee’s personal trip, it would be a concurrent cause of the trip, rather than an incidental appendage or afterthought. There is no occasion to weigh the business and personal motive to determine which is dominant.” Of the language just quoted from Gingell, the Supreme Court later said “This is a sound exposition of the doctrine and is in keeping with the rule that the Workmen’s Compensation Act should be liberally construed to effectuate its purposes.” Corp v. Joplin Cement Co., supra.

Concluding our discussion in Gingell, we said “We think this same formula is applicable when an employee, in the course of his normal journey to and from work, performs some concurrent service for his employer, and becomes an exception to the general rule excluding off-premises going- and-coming journeys — such as going from his home to his place of employment or returning therefrom to his home. The question then becomes: Was this mission of such character or importance that it would have necessitated a trip by some one if this employee had not been able or willing to handle it in combination with his homeward journey?” See also: Kammeyer v. Board of Education, Mo.App., 393 S.W.2d 122, 132.

Viewing the evidence and the reasonable inferences it warrants in the light most favorable to the claimant, we have no hesitancy in applying to this controversy as decisive the ruling we made in Gingell. The lumber claimant was hauling when he sustained his injuries would have had to be removed and hauled from the Waxide premises to the Durbin Corporation by some one at some time if claimant had not been able or willing to remove and transport it in combination with his homeward journey and his journey the next morning to Durbin Corporation. Sam Dubinsky, Durbin Corporation’s vice-president, chose the time and selected the route for the transportation of the lumber from the Waxide premises to the Durbin Corporation. He chose to direct claimant, in the course of his normal journey home that night and to Durbin Corporation the next morning, to transport the lumber to Durbin Corporation. That claimant would have gone to his home in Sibley without this direction and done so solely for his own personal purposes is not material. What is material is that the direction given him by Dubinsky, and his undertaking to obey it, made the transportation of the lumber a “concurrent cause” of his journey and the performance of a “concurrent service” for his employer as ruled in Gingell. 1 Larson, Workmen’s Compensation Law, Sec. 18.13. Accordingly, we hold that the commission’s findings are supported by competent and substantial evidence and that its award is correctly based on the dual purpose doctrine. This renders it needless to examine whether its findings and award are sustainable under the mutual benefit doctrine. The authorities cited by appellants to sustain a contrary ruling entirely fail to do so.

The judgment of the circuit court affirming the findings and award of the commission is affirmed.

All concur.

      . Barton v. Western Fireproofing Co., 326 S.W.2d 344 (Mo.Spr.App.1959); Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929); O’Dell v. Lost Trail, Inc., 339 Mo. 1108, 100 S.W.2d 289 (Div.1, 1936); Gingell v. Walters Contracting Corp., 303 S.W.2d 683 (Mo., K.C.App.1957); 1 Larson, Workmen’s Compensation Law, § 18.11 et seq.


author: BRADY, Commissioner.

text:
    Helen BUSCH, Plaintiff-Appellant, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., a Corporation, Defendant-Respondent.
    No. 32641.
    St. Louis Court of Appeals. Missouri.
    April 18, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 18, 1967.
    Application to Transfer Denied July 10, 1967.

      Morris A. Shenker, Frank B. Green, Jr., St. Louis, for plaintiff-appellant.
    Moser, Marsalek, Carpenter, Cleary & Jaeckel, Parks G. Carpenter, St. Louis, for defendant-respondent.
   BRADY, Commissioner.

The determinative issue in this appeal is whether there was a violation of any legal duty defendant owed plaintiff as a proximate result of which violation plaintiff’s injury occurred. The trial court held there was no such case presented, sustained defendant’s timely after-trial motion for judgment in accordance with its motion for a directed verdict, and set aside the judgment in favor of the plaintiff in the amount of $6,500.00.

It will be of assistance in understanding the factual situation presented by this appeal to have plaintiff’s pleading, theory, and manner of submission clearly in mind. The pertinent part of the petition as to the negligence charged reads: “ * * * Defendant negligently and carelessly caused and permitted customers to pass and transfer said loose, unpackaged leaf vegetables and other vegetable greens from the display counters across the aisle by hand to the scale in the center of said aisle; * * Plaintiff’s theory throughout trial and before this court is that by placing a scale in an island across an aisle from open bins where vegetables and other produce were displayed so that customers would have to pass the loose vegetables back and forth between the display case and the scale to weigh them, it subjected itself to a charge of negligence as it could reasonably have expected some scraps to fall on the floor and that a customer might thereby be caused to slip and fall. It must be emphasized that plaintiff does not base her theory of recovery upon the defendant’s failure to remove a piece of vegetable matter from the floor, nor upon any contention the defendant’s employees caused the vegetable matter upon which she slipped and fell to be on the floor. (Compare Wood v. Walgreen Drug Stores, Mo.App., 125 S.W.2d 534.) As pled, tried, submitted, and presented to us on appeal, plaintiff contends defendant’s act in so placing the scale with reference to the vegetable and produce bins is an act upon which the jury could base her recovery. Plaintiff submitted her case to the jury on a modified version of M.A.I. 17.01 the pertinent parts of which read as follows: “INSTRUCTION NO. 4. Your' verdict must be for plaintiff if you believe: First, defendant caused vegetable matter to collect and accumulate on the floor of its fresh produce aisle as a direct result of its customer self-service system, and Second, defendant was thereby negligent, * *

Taken in the light required of us upon appeal the evidence in this case is that the defendant operated its store at 1601 South Brentwood Blvd., Brentwood, Missouri, on a customer self-service basis. The produce department consisted of a single aisle which ran three-fourths of the width of the store. Fresh produce was displayed in cases on both sides of the aisle. Certain vegetable items were sold by weight and defendant provided a scale to enable store patrons to inform themselves as to the weight of the produce or vegetable selections. This scale was located on a counter 38 inches high, 30 inches long, 30 inches wide, and located like an “island” halfway down the center of the produce aisle. A customer could reach the scale by walking from any position in the produce department without going through another department. The •counter on which the scale sat also contained a supply of paper bags for customer use. Customers using the self-service system in effect in this store could bag their produce or vegetables either before or after weighing them and it was a customary and common occurrence for vegetable scraps to fall from loose vegetables as they were taken by customers from one of the bins and transferred to or from the scale. One of defendant’s employees had swept up dirt and fragments of vegetable greens at noon on the day of this occurrence and had done so again about fifteen minutes before the plaintiff was injured. In addition, at least two of the defendant’s employees had picked up debris from the floor in the produce department at various other unspecified times during the day prior to this occurrence. There is no other evidence bearing upon defendant’s actual or constructive knowledge of this material on the floor or as to the length of time it had been there. With commendable candor plaintiff’s counsel concedes there has been no showing of defendant’s scienter.

The plaintiff was 62 years of age. She had been a patron of this store on a more or less regular basis for some five or six years. She was aware of the custom as to the weighing of vegetables and produce and she had seen vegetable matter on the floor on other occasions. On the date this incident occurred plaintiff was wearing “loafer” type low-heeled shoes. Plaintiff had completed her selections and was about to reach the checkout counter when she realized that she had forgotten to purchase some potatoes and she went back into the produce aisle. She needed a bag to carry the potatoes to the scale and as she turned to go toward the bags located in the counter holding the scale her right foot slipped out from under her, her right shoe flew up into the air, and she landed on the floor on the right side of her body suffering serious injuries which due to the decision reached herein need not be recited. After she fell and while lying on the floor awaiting the arrival of an ambulance she asked for her right shoe and when it was brought to her held it up and said, “Oh, oh, the bottom of my shoe, there it is.” She described what was on her shoe as a “green dirty piece of something” and also stated it was “mashed”. At this same time while she lay on the floor plaintiff saw a scattering of vegetable greens on the floor of the produce aisle.

Plaintiff described customer traffic in the store on this occasion as being very light and except for the produce clerk she had not noticed anyone else in the produce aisle during the time she was shopping for produce. Neither had she seen anyone sweeping the floor during that time. Although plaintiff occasionally glanced downward she did not see the particular vegetable matter which. caused her fall before she slipped on it.

It requires no citation of authority to substantiate that the plaintiff was an invitee on the premises of the defendant who owed her the duty to exercise ordinary care to render the premises reasonably safe for the purposes for which she came. In this same connection it is equally well accepted that the proprietor of a store is not an insurer. He is liable for falls caused by foreign substances on the floor if it was placed there by his servants, in which case the issue of his knowledge is immaterial. He is also liable if the substance is placed on the floor by others or by persons unknown provided it is shown he knows of such condition or that such condition has existed for so long a time that, by the exercise of reasonable care, he had an opportunity both to discover and to remedy it. Those interested in a general review of the rationale of the decisions and the various factual situations presented may refer to the cases collected in 100 A.L.R. 746 and to those found in succeeding note on falls caused by vegetable, fruit or meat upon the floor in 162 A.L.R. at 979. We see no useful purposes that would be served should we engage in such a treatise. This for the reason that almost all of such cases are based upon defendant’s alleged negligence in failing to remove a substance from the floor. As previously stated this is a theory which plaintiff in the instant case vehemently disdains. However, there are several cases which deal with the very theory presented by this plaintiff and are of particular value.

An example of the difficulties courts find in determining factual situations such as that presented by the instant case is to be found in the situation in Florida. In Carl’s Markets, Inc. v. DeFeo et ux., Fla.1951, 55 So.2d 182, the plaintiff slipped on a string bean in the aisle and fell. The contention was made that it is unnecessary in such a case to show actual or constructive knowledge of the store owner. The judgment for the plaintiffs in the trial court was reversed upon appeal. In a special concurring opinion there is a colorful discussion of this rule in the light of conditions in the present-day self-service supermarket as contrasted to the old-fashioned family owned grocery store prevalent in that industry when the rule originated. In the case of Pogue v. Great Atlantic & Pacific Tea Company, U.S.C.A. Fifth Circuit, 242 F.2d 575, that discussion is continued and' combined with an exhaustive review of the applicable Florida decisions. The dissent in the Pogue case is equally important.

Plaintiff relies upon Moone v. Kroger Grocery & Baking Co., Mo.App., 148 S.W.2d 628, a 1941 decision of this court. That case involved a fall resulting from a green bean on the floor. As pointed out in that opinion at 1. c. 630, the trial court permitted plaintiff to submit her case upon two theories. The first of these was that Kroger was negligent in placing beans in their display bins in such quantity as to overflow and cause them to fall on the floor. In the instant case the plaintiff included such an allegation in her petition but did not submit upon that theory. Accordingly we will confine our discussion of Moone to the second theory therein submitted. It was identical to that submitted in the instant case; i. e., (as stated in the Moone opinion at [2, 3] 1. c. 630) “ * * * permitting customers to pass beans and other vegetables from the east counter by hand and across the aisle to the scale on the west side of the aisle. * * * ” In Moone v. Kroger Gro-eery & Baking Co., supra, it was stated that the defendant “ * * * could by using ordinary care for the safety of its customers have foreseen that by placing the weighing scale across the aisle from the beans and green vegetables which were to be handled across the aisle and weighed, was creating a place where its customers might slip and fall. * * * ” The essence of plaintiff’s theory in the instant case and that presented in Moone is to be found from the following quotation from the Moone opinion (148 S.W.2d, 1. c. 631): “This case was pleaded and permitted to go to the jury on the theory that the defendant owed to the public that were invited to trade with them the duty of exercising ordinary care to maintain the premises in a reasonably safe condition and that it failed to do so in that plaintiffs injuries were produced on the storekeeper’s premises and the proximate cause thereof was wholly incidental to the nature and maintenance of the business as the defendant conducted it on its own premises.” Moone v. Kroger Grocery & Baking Co., supra, further held that in such a situation it was unnecessary for the plaintiff to prove the defendant store owner had actual or constructive knowledge of the vegetable matter on the floor.

We are now of the opinion that so much of the Moone case as deals with the theory of negligence based upon the location of the scale should no longer be followed. We reached this decision for several reasons. First, we note the plaintiff in Moone actually did submit the issue of the store owner’s knowledge. See that portion of the opinion dealing with the motion for rehearing at 1. c. [6] 632. It follows that the court’s comments with reference to the issue of scienter were not necessary to the disposition of that case due to the manner in which it was actually submitted to the jury. Secondly, we are of the opinion that the issue of proximate cause was not fully explored in the opinion in Moone, supra, and further when that issue is examined in the light of the factual situation here presented, defendant’s submitted act of negligence cannot be the proximate cause of plaintiff’s injury. As was stated in Clymer v. Tennison, Mo.App., 384 S.W.2d 829, “Prior and remote cause cannot be made basis of action if remote cause did nothing more than furnish condition or give rise to occasion by which injury was made possible and there intervened between that cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, * * Even taking the evidence in the light most favorable to the plaintiff and giving her the benefit of all the inferences as we are required to do, the most that can be said in the instant case is that defendant’s self-service store operation and the location of its scale created a condition which made it possible for customers or employees to drop things. But that condition was not the proximate cause of plaintiff’s injury. The presence of the greens on the floor was the distinct and efficient cause of the injury. Lastly, as stated in Simpson v. Duffy, 1952, 19 N.J.Super. 339, 88 A.2d 520, 1. c. 525, “The adoption of such a principle would come very close to making a self-service market operator an insurer and also it would be opposed to the settled pronouncements of our courts that the doctrine of res ipsa loquitur is not applicable to this class of cases. * * * ” With respect to Missouri law as to the applicability of res ipsa loquitur to a situation such as presented here, see Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509.

The decision reached above renders unnecessary any ruling upon plaintiff’s other allegations of prejudicial error. The judgment is affirmed.

PER CURIAM:

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

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


author: CROSS, Judge.

text:
    Elsie Fern TRYON and Walter Tryon, Appellants, v. Mary N. CASEY (Howerton), Respondent.
    No. 24591.
    Kansas City Court of Appeals. Missouri.
    April 3, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 5, 1967.

      Alan Slayton, Reese, Constance, Slayton, Stewart & Stewart, Independence, for appellants.
    Houts, James, McCanse & Larison, Richard P. Bruening and Ralph H. Smith, Jr., Kansas City, for respondent.
   CROSS, Judge.

Plaintiffs Elsie Fern Tryon and her husband Walter Tryon jointly maintain this suit in two counts against defendant Mary N. Casey (Howerton). Count one is an action by Mrs. Tryon for damages on account of personal injuries received when her standing automobile was struck in the rear by an automobile driven by defendant.

Count two is plaintiff husband’s suit for damages arising from his resulting loss of services. The case was tried before a jury which returned a $250.00 verdict on the first count for Mrs. Tryon and a $700.00 verdict for Mr. Tryon on the second count. Plaintiffs have appealed from the resulting judgment.

The collision occurred on the morning of October 30, 1963 at a street intersection in Independence and involved four automobiles traveling in line behind a school bus. Plaintiff, on her way to her regular work, had been driving northbound approaching the intersection behind two cars which were immediately following the bus, all vehicles traveling in the same lane. The school bus flashed its lights as it approached the intersection and came to a stop to pick up school children. The two vehicles in front of plaintiff and the car driven by plaintiff made a gradual stop. “Everybody made a gradual stop”. Plaintiff came to a stop approximately ten feet behind the vehicle immediately in front of her. Within a few seconds after she had been stopped an automobile driven by defendant struck the back of her car, causing it to hit the car immediately in front of her, which in turn ran into the car it was following. Thomas Sugg, a police officer called to the scene of the accident, testified as a witness produced by plaintiffs that he found the four cars still parked on the street and that all of them were damaged. Defendant’s car was the last in the row of cars. Immediately in front of it was Mrs. Tryon’s car. The entire front of defendant’s car including the bumper, both fenders, and the hood was “heavily damaged”. The car was not driveable and was removed by a tow truck. Mrs. Tryon’s car was damaged on the rear. “The trunk was bent in and the tail lights, the rear bumper was buckled.” The front left part of the Tryon car also was damaged where it had struck the car immediately in front of it (the second car in line) and inflicted damage to its rear bumper and trunk. That vehicle was further damaged in front when it was driven into the first car in line which thereby sustained damage to the rear “on the bumper and the tail light was broken”. The persons involved in the accident were removed to the hospital by ambulance. The officer did not talk to them at the scene, but did so later at the hospital. The defendant gave him a statement that “she was driving along and glancing out the window and her brother yelled at her to stop and when she looked up she bumped into the other cars”. Other testimony of the officer will be referred to later herein.

Defendant’s version of the muliple collision corroborates the foregoing stated facts. She testified that on the morning in question she was driving an automobile to school accompanied by her brother. As she approached the intersection at a speed of 15 to 20 miles per hour there was traffic in front of her, consisting of a bus in front of some cars. While she was glancing “out the window” her brother yelled a warning that cars were stopped ahead. She put on the brakes but didn’t stop in time to avoid striking Mrs. Tryon’s vehicle. The force of the impact knocked the Tryon car into the car next in front, and so completely “smashed in” the front of defendant’s car that it couldn’t be driven away from the scene of the accident. No serious effort was made on defendant’s behalf to establish that the collision resulted from any cause other than her own negligence.

The real trial issues contested were as to the extent of Mrs. Tryon’s injuries, the quantum of pain and disability resulting therefrom, and the amount of damages plaintiffs should receive. Bearing on these questions Mrs. Tryon testified in substance as follows: After the collision she was dazed and became nauseated. By the time she got to the hospital she began to get stiff and sore and suffer pain in her neck and back and her knees. At the hospital she was X-rayed, examined and prescribed for by Dr. Link, her family physician. Mr. Tryon then drove her home. She remained nauseated and threw up several times. She was confined to her bed the rest of the day and most of the following day because of being stiff and sore. On the third day she went to Dr. Link and complained to him of stiffness and soreness in her neck and back, for which he gave a series of heat treatments and also cortisone injection. She remained generally under the charge of Dr. Link until April, 1964, and continued to have the same complaints of pain in her neck and back during this whole period of time. Sometime in November or the first part of December following the injury she noticed a new development — a numbness of her right arm which still persists along with her pain and difficulty with her neck and the upper part of her back. Sometimes the numbness is accompanied by headaches, and it is brought on by having her neck in “a bind” or in an unusual position, such as “when she had her head down or up”. Through December and January she consulted and received treatments for her conditions described previously, from Dr. John Meise, a chiropractor. Dr. Link had made arrangements for her to enter the hospital but no rooms were available. For that reason she started going to Dr. Meise because “I wasn’t getting any relief from this terrible headache and pain in my neck”. She also consulted Dr. Robert Finkle, an orthopedic specialist, in March, 1964. She was referred to him by Dr. Link because of the numbness and pain in her arm and neck. Dr. Finkle gave her a cortisone injection and referred her to the Independence Sanitarium and Hospital for a series of neck traction treatments.

Mrs. Tryon testified that because of the numbness and pain in her arm she is unable to do anything like ironing, sewing or bowling, “anything in which my head is down”. She has lost control of her hand and drops things, such as a ball or a paint brush. She has discontinued bowling in “the league”, and no longer does her own interior decorating which she formerly did. For two weeks following the accident she was unable to do any housework and for five months thereafter she had to have extra help with her housework. Her two girls are “carrying the load right now” with reference to her “regular household duties, washing and cooking”. Prior to the accident Mrs. Tryon worked regularly at the “Rapid Car Wash”, a business owned by Mr. Tryon devoted to washing, cleaning and polishing automobiles for automobile dealers and the public. She had operated the office and assisted generally in various operations of the business. After her injury in October, 1963, she did not return to those duties until April, 1964. She still complains of numbness of her arm, pain that shoots down through her arm, and that her arm goes dead “like a piece of wood”. She still has “difficulty” with her neck and the upper part of her back which originated with the accident.

Total expenses incurred as a result of the accident, not inclusive of wages paid replacement help at the car wash, amounted to $698.94, were paid by Mr. Tryon, and were as follows: ambulance, $15.00; Dr. Vance Link, $60.00; Independence Sanitarium and Hospital, $53.00; Dr. John Meise, $75.00; Dr. Robert Finkle, $25.00; miscellaneous drugs, $28.94; heating pad, $10.00; having ironing sent out, $220.00; housework done by Mrs. Try on’s mother, $100.00; Mary Engle (housework and odd jobs), $112.00. It was also developed by Mrs. Tryon’s testimony that on July 12, 1962, she was involved in an accident prior to the one giving rise to this suit. The 1962 occurrence was also a rear end collision. Mrs. Tryon was hospitalized at the Independence Sanitarium for eight days where she was treated for injuries similar to those received in the October 1963 collision. She testified that within a month after the 1962 accident she had recovered, was symptom free and had no medical service. She was off work at the car wash only ten days.. Also, in the latter part of 1965 she was involved in a minor car accident and received' injury limited to her left shoulder on that occasion. She was taken to the Independence Sanitarium and Hospital where Dr., Robert Finkle examined her and evaluated X-rays that were taken of the injured area. She later saw Dr. Finkle four times on account of the injury to her left arm and was off work following that injury only from “Monday until Friday”. She states she entirely recovered from and has no residual disability from the 1965 injury to her left shoulder. Additional evidence material to the appeal issues will be referred to in our discussion of the points raised.

Plaintiffs’ first point is a contention that the trial court erred in refusing to admit as evidence those portions of the office records ' of Dr. Robert Finkle which contained his findings and diagnosis resulting from his examination of Mrs. Tryon. The records in question were produced at the trial by Dr. Finkle’s receptionist, June Wingo, who testified that she maintained and was custodian of all the records pertaining to the doctor’s treatment and examination of patients. Counsel for defendant interrupted preliminary examination of the witness to admit identity of the documents as business records, reserving the right to object to specific portions thereof on grounds other than their qualification for admission in evidence under provisions of the Uniform Business Records Act. The court then ruled that “They will be admitted on that basis”. Plaintiffs’ counsel then asked the witness to read into the record those portions of Dr. Finkle’s records which showed what complaints were made to him by Mrs. Tryon and reflected the doctor’s subsequent examination and findings. Defendant’s counsel interposed objection to the requested evidence on the specific ground that it woud be hearsay since there was no showing that the doctor was not available to testify in person. The objection was sustained. Thereupon plaintiffs’ counsel made an offer of proof as follows: “MR. SLAYTON: I would like to prove by this witness through the doctor’s medical records that the patient has an abduction of the right shoulder, of a joint, that there was pain that accompanied the abduction; that the abduction of the right arm against resistance aggravated the pain; that she had pain along the right side of her neck along the trapezius muscle into the right shoulder”. Again defendant’s counsel objected to the offer “on the ground it is hearsay and not the best evidence”, and that “it deprives the defendant of the right of cross examination”. The objection was sustained by the court.

It is apparent from the foregoing that the sole reason actuating the trial court in excluding the records of Dr. Finkle was that such evidence would be hearsay. Their identification and qualification as business records were not questioned, nor was any objection made as to their relevancy or materiality or interposed on any other substantive ground. It is uniformly held by Missouri decisions that properly qualified business records are admissible as evidence, subject to specific and legally proper objection on grounds other than hearsay. In Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 55 A.L.R.2d 1022, Judge Eager wrote: “Objections to such records as hearsay and as depriving a party of the right of cross-examination are, therefore, not effective if the records have been properly qualified under the Uniform Business Records Act. * * * Since the hearsay objection is obviated, we see no reason why a proper expert medical opinion contained in a hospital record should not be accorded dignity equal to that of a similar opinion from the witness stand; to preserve the right of cross-examination intact as to such matters would be to repeal the statute”. See also: Rossomanno v. Laclede Cab Co., Mo.Sup., 328 S.W.2d 677; LaMantia v. Bobmeyer, Mo.App., 382 S.W.2d 455; Glynn v. Glynn, Mo.App., 291 S.W.2d 190 and 12A Mo.D., Evidence,. The medical records of Dr. Finkle offered as evidence in this case come within the foregoing rules we have noted. The professional office records of physicians are within the purview of the Business Records as Evidence Law and upon proper identification and qualification are admissible in evidence. Rossomanno v. Laclede Cab Co., Mo.Sup., 328 S.W.2d 677; Fisher v. Gunn, Mo.Sup., 270 S.W.2d 869; LaMantia v. Bobmeyer, Mo.App., 382 S.W.2d 455; Kitchen v. Wilson, Mo.Sup., 335 S.W.2d 38. Clearly, the exclusion of the office records of Dr. Finkle on the ground that they were hearsay constituted error.

Defendant makes no effort to justify the trial court’s exclusion of Dr. Finkle’s office records on the ground they were hearsay. She relies on an entirely different ground presented here for the first time, to-wit: that the trial court correctly refused to admit the records because there is no evidence to indicate that Dr. Finkle was a medical expert qualified to make medical findings and diagnoses. In this connection we are mindful of the rule that an “expert witness” is one who by reason of education or specialized experience possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion or of drawing correct conclusions. 12A Mo.D., Evidence, Our examination of the record does not lead us to the conclusion defendant contends for. To the contrary, it discloses facts and circumstances amply sufficient to warrant our belief that Dr. Finkle was a medical expert, qualified to speak as an authority on matters relating to disability of the human body.

The following are significant facts bearing on the professional identification and status of Dr. Robert Finkle. His first professional contact with Mrs. Tryon was instigated by Dr. Link, her family physician, whose identity and qualifications as a doctor of medicine are thoroughly established by the evidence and are unquestioned. Dr. Link testified that he received his medical education at the University of Nebraska College of Medicine, graduating in 1942. He interned at the University Hospital in Omaha until 1943. He was admitted to practice in Missouri in 1943 and, as previously stated, he is at the present time associated with the Independence Sanitarium and Hospital in the practice of general medicine and is not an orthopedist. In March, 1964, Dr. Link “referred” Mrs. Tryon to Dr. Finkle, as an orthopedic specialist, for treatment of the numbness and pain which had developed in her arm and neck. Dr. Finkle accepted Mrs. Tryon as a referred patient and in treating her injuries utilized the facilities of the Independence Sanitarium and Hospital to administer her a series of neck traction treatments. Following the 1965 accident and injury to her left shoulder, Mrs. Tryon was again examined and diagnosed by Dr. Finkle at the Independence Sanitarium and Hospital. At that time Dr. Finkle evaluated X-rays and a report of X-ray findings (Plaintiffs’ Exhibit No. 4) submitted by the hospital’s Department of Radiology, signed by Kenneth C. Hollweg, M. D., and directed to the “Service of * * * R. H. Finkle * * * (and other physicians named) * * * M. D.” Under these circumstances clearly showing that the facilities of the Independence Sanitarium and Hospital were available to Dr. Finkle for his professional use in examination and treatment of injured persons, the only reasonable inference to be drawn is that he was recognized by the administrative authority of the hospital as a fully qualified physician and that he was a member of the hospital’s duly accredited medical staff. It is inconceivable that Dr. Finkle would have been permitted access to and use of the hospital and its services in the treatment of patients if he were not a thoroughly trained, experienced, reputable and qualified physician.

Dr. Finkle’s qualifications as a medical expert are further attested by the persuasive circumstance that when it was decided by Dr. Link that his patient needed the services of an orthopedic specialist he chose Dr. Finkle as such specialist and directed her into his care. It is incredible that Dr. Link would have been so indifferent to the welfare of his patient as to have delivered her into unskilled, unqualified hands. We choose instead to believe that Dr. Link, whose medical skill and integrity as a physician are attested by his medical license, exercised a high degree of discriminate care to select for Mrs. Tryon an orthopedic specialist of general ability, training and qualifications conforming to the standards of the medical profession to which he himself belonged as a reputable, licensed member in good standing. This is to say that we believe the reference of Mrs. Tryon by Dr. Link, the “M. D.”, to Dr. Finkle, as a selected “orthopedic specialist”, further warrants the inference that Dr. Finkle is also an “M. D.”.

In Allen v. Missouri Public Service Company, supra, the Supreme Court considered the question whether a doctor was sufficiently qualified to make a medical report that would be eligible for admission in evidence as a hospital record under the Uniform Business Records Act. During the trial of that case an exhibit was produced and identified by the medical records librarian of a hospital as being a part of the medical records pertaining to an injured plaintiff. The record was further identified as signed by “a Doctor Ruby”. Concerning Dr. Ruby the librarian testified that he was a resident physician at the hospital at the time in question but that he had since left and gone west. On the basis of those facts the Supreme Court ruled as follows: “There was direct testimony that the doctor who wrote this entry was, at the time, a resident physician of the hospital; from this we may presume his qualifications.”

So it is in this case. We presume the existence of Dr. Finkle’s qualifications as a medical expert from the evidence before us. Consequently we are not in agreement with defendant that the trial court took the proper course of action by excluding Dr. Finkle’s medical records on the grounds he was not a qualified medical expert. The trial court’s error in so doing was prejudicial, inasmuch as that action was an arbitrary curtailment of plaintiffs’ right to introduce testimony on a vital issue — the nature, extent and prognosis of her injuries. The opinion in Allen v. Missouri Public Service Company, supra, specifically indicates the parts of a duly authenticated and qualified hospital record that should be admissible, subject to specific objections on substantive grounds, listed as follows (but not limited thereto): “the physical examination findings, the patient’s symptoms and complaints, treatment and progress records, diagnoses by those qualified to make them, the result of analyses and laboratory tests, X-rays, the behavior of the patient, and those parts of the patient’s history inherently necessary (or at least helpful) to the observation, diagnosis and treatment of the patient”. Those were the entitlements of which plaintiffs were deprived to their prejudice by the trial court’s error in excluding the medical records of Dr. Finkle.

Plaintiffs’ second assignment is also a complaint that the trial court erred by excluding evidence they were entitled to introduce. The point involves two witnesses. During examination of Thomas Sugg, the police officer, plaintiffs’ counsel undertook to elicit testimony from him to the effect that when he interviewed Mrs. Tryon at the hospital after the accident she made complaints of present pain and suffering in his presence on that occasion and also that he was able to observe that she was in pain. The trial court denied plaintiffs’ formal offer to prove those facts by the witness on the ground that such testimony would be self serving. Plaintiffs also produced as a witness their neighbor, Joyce Wingate Peoples, who testified that on one' occasion following the accident when she was in the Tryon home at eleven o’clock in the morning Mrs. Tryon was in bed and was crying. Plaintiffs’ counsel sought further to show by Mrs. Peoples that Mrs. Tryon was also making complaints of present suffering, pain and discomfort on that occasion in the presence of the witness. Again the trial court rejected plaintiffs’ offer to prove those facts on the ground “they are self serving and would be hearsay”.

Defendant concedes that evidence of complaints of present pain and suffering by plaintiff Elsie Fern Tryon made in the presence of witnesses Thomas Sugg and Joyce Wingate Peoples should have been admitted. Exclusion of that evidence must necessarily be held to have constituted error. Missouri courts have long observed the rule that expressions and complaints of present pain made by an injured person at the time the pain is being suffered are to be received as original evidence and are not to be rejected as hearsay, mere opinion or non res gestae, or on the ground they are self serving, if directed to a present, existing condition so as to be the natural and spontaneous expression of the person’s feelings at the time in question. Mo.D., Evidence,. It is also well settled that “a non-expert witness may give his opinion as to the apparent health of a person whom he has had an opportunity to observe”. Steffen v. Southwestern Bell Telephone Co., 331 Mo. 574, 56 S.W.2d 47, 12A Mo.D., Evidence,

Defendant undertakes to avoid her confession of error in the exclusion of the testimony of witnesses Sugg and Peoples relative to Mrs. Tryon’s complaints of pain by contending that the error was harmless because “such evidence was cumulative at most”. Defendant suggests there is other evidence to establish the same facts witnesses Sugg and Peoples would have testified to, namely, the testimony of Mrs. Tryon herself, Mr. Tryon, Drs. Link and Meise and a hospital record which was read to the jury. There is no necessity that this secondary question raised by defendant be decided, since the prejudicial error resulting from the trial court’s refusal to admit material portions of Dr. Finkle’s medical records in evidence and other error to be noted constitute sufficient reason to reverse the judgment and remand the cause for a new trial. Furthermore, as an appellate court, we deem it the better course of action to refrain from non-essential decision of a question that is properly addressable to the trial court in the first instance. It is a fundamental rule of trial procedure that the trial court is vested with discretion to admit or reject cumulative evidence, and that the exercise of such discretion is not reviewable on appeal in the absence of its abuse. See: Neeley v. Kansas City Public Service Co., 241 Mo.App. 1244, 252 S.W.2d 88; 27 Mo.D., Trial, The issue addressed to this court has never been presented to the trial court and there is no certainty the question will arise again when the case is retried or that it will be presented in the same form. These comments are not to be understood as an expression of this court that the testimony of witnesses Sugg and Peoples would have been cumulative. In contending that the trial court’s error in excluding that testimony was harmless, defendant cites and relies upon Steffen v. Southwestern Bell Telephone Co., supra, where the trial court exercised its discretion to exclude evidence as cumulative. Two other Missouri cases may be relevant to the question if it re-arises, to-wit: Dorn v. St. Louis Public Service Co., Mo.App., 250 S.W.2d 859, and Grath v. Mound City Roofing Tile Co., 121 Mo.App. 245, 98 S.W. 812. Both cases are authority to the effect that evidence should not be rejected as cumulative when it goes to the very root of the matter in controversy or relates to the main issue, the decision of which turns on the weight of the evidence introduced by the respective parties.

Still another complaint of error arises from the trial court’s exclusion of evidence tendered by plaintiffs’ counsel. During the testimony of Mrs. Tryon, offer was made to prove on behalf of plaintiff Walter Tryon, by the testimony of both plaintiffs, that Walter Tryon was in fact the owner of the business referred to as the Rapid Car Wash although the business was conducted! jointly between them, that there were no> partnership income tax returns, and that while Mrs. Tryon was unable to work at the Rapid Car Wash from October 30th(1963) to April 1st (1964), it was necessary for Mr. Tryon to employ replacement help to perform her duties at a cost of approximately $2,000.00. Counsel stated that the offer was made as “an aid to arriving at the value of her services in connection with her helping in his employment”. Although. not made a part of this offer of proof, additional facts had been provisionally stated by plaintiffs’ counsel at a conference between counsel and the court, prior to opening statements, to • the effect that Mrs. Tryon was not paid any salary for her services, that there was no actual partnership, and that plaintiffs had a joint bank account in which proceeds from the business were deposited and which was subject to withdrawal by both spouses. Defendant objected to the offer on grounds it was “speculative”, that the cost of replacement help was not a proper measure of lost income in the wife’s case “since there is no evidence she was paid a salary”, and that, as to the husband’s case, the offer was improper because “it is not the normal service of the wife”. The objection was sustained and the offer denied.

It is submitted on behalf of plaintiff husband that he was entitled to the benefit of the labor his wife performed in connection with his business, that his loss of the value of such labor resulting from her wrongful injury was a proper element of his claim for loss of her services, and that he was therefore entitled to introduce evidence of the cost of replacement help while she was unable to work, as tending to prove the value of her services that were lost to him. Defendant argues that a husband’s claim for loss of his wife’s services is restricted to “normal household duties and society, companionship and consortium”, that the claim does not include loss of services rendered by the wife outside the home as a wage earner, and that consequently in this case Walter Tryon may not recover for the loss of his wife’s services rendered in the conduct of his car wash business operated by their joint endeavor.

To resolve the question thus presented we look to the common law as it has been modified by the statutes pertaining to the reciprocal rights and duties of a husband and wife. Under the common law it was and still remains the prime and paramount duty of the husband to support and maintain his wife and family. State ex rel. George v. Mitchell, Mo.App., 230 S.W.2d 116, 120, and Wilt v. Moody, Mo., 254 S.W.2d 15, 19. This duty has not been lessened by legislation. In re Estate of Wood, 288 Mo. 588, 232 S.W. 671. A correlative obligation imposed upon the wife is the duty to render service to her husband. Eisminger v. Stanton, 129 Mo.App. 403, 107 S.W. 460. The common law, under which a wife’s earnings during coverture vested absolutely in her husband, was modified by statute in 1875 to provide that “Any personal property, including rights in action, belonging to any woman at her marriage, or which may have come to her during coverture by gift, bequest, or inheritance, or by purchase with her separate money or means, or be due as the wages of her separate labor, or have grown out of any violation of her personal rights, shall, together with all income, increase and profits thereof, be and remain her separate property and under her sole control, and shall not be liable to be taken by any process of law for the debts of her husband”. Laws of Missouri 1875, pp. 61, 62. The provisions of the 1875 statute as quoted above are, in exact and complete text, contained in present Section 451.250 VAMS. Obviously, it was the purpose of these statutes to secure to a married woman the wages of her “separate labor” as her “separate property”, and to exclude her husband from any right therein. This leads us. to say that if the work performed by Mrs. Tryon in aid of her husband’s business was. her “separate labor”, Mr. Tryon is not entitled to recover any loss of those particular services. On the other hand, if the work she performed in assisting her husband conduct his business was not “separate labor” as contemplated by the statute, the loss of those services occasioned by defendant’s wrong, would be recoverable by Mr. Tryon.

The nature, scope and effect of the above quoted statute enacted in 1875 (which presently exists as Section 451.250 VAMS) were considered and delineated by the Supreme Court in Plummer v. Trost, 81 Mo. 425, where a wife labored in conjunction with her husband in fulfilling the latter’s contract with the owner of a farm to operate it on a profit sharing basis. By their joint efforts they farmed the land for three years and raised valuable crops but nothing was ever paid to either spouse for their labor. Thereafter the husband died and the wife undertook, as a plaintiff, to recover the value of her services devoted to the farming operation. In denying her a recovery the court observed that while the 1875 statute gives the wife her wages, “it is to be observed that it is limited to the wages ‘of her separate labor’ ”, and stated that “Under similar statutes allowing the wife her earnings, the accepted construction is, that when her labor is performed on account of, or in connection with the husband, or is bestowed on his business, or where there is nothing in the terms or circumstances of the contract to indicate intention or purpose to concede to her the fruit of the given labor, the statute does not apply”. Continuing, the court further said:

“While the husband may, by his assent, concede to the wife the wages of her labor, so that she may hold it even against his creditors, yet where the work and business are carried on by husband and wife in co-operation, the labor of the husband being united with that of the wife, the business and its proceeds will be regarded as belonging to the husband. It will be subject to his debts and, on his death, pass to his administrator. * * * Where the husband and wife are living together and mutually employed in providing a support for themselves and children, and there is neither any express agreement, nor anything to indicate at the time an intention on her part to separate her earnings, and nothing to indicate an assent of the husband thereto, the right of property and action therefor, belong to the husband.”

The foregoing principles enunciated by the Supreme Court were followed and reaffirmed by this court in Plummer v. City of Milan, 70 Mo.App. 598, where a wife who had been injured by a sidewalk fall testified as follows: “Am going on forty years old. Am married. Have been married about twenty years. Am living with my husband. I have got nine children. The oldest is eighteen years old. The youngest is four months old. Besides keeping house for my husband, I help if I can get any sewing to do, sewing for anybody. Something like that, to help support the family. My husband helps to make a living for the family and I keep house for him”. Under that testimony we held that the injured wife did not intend that the income from her sewing go to her separate or individual use but that “she did it (the sewing) as an aid and service to the husband in the support of the family”, and that consequently the loss of such income was a loss to the husband, not to the wife. In the opinion attention was directed to statute Section 6864, R.S. 1889 (present Section 451.290 VAMS), which was enacted subsequent to the decision of Plummer v. Trost, supra, and by which a wife was empowered “to carry on and transact business on her own account”. With reference to that provision we said that it did not have the effect to compel her to transact “on her own account” whatever business she may do and that “She can do so, but she need not do so”. It was our conclusion that “ * * * (W)hen her labor is intended to aid the husband in the support of the family, it will be considered labor for the husband; and for the loss of which he would be entitled to recover”. And, in Blair v. Chicago & Alton Railroad Co., 89 Mo. 334, 1 S.W. 367, the Supreme Court again considered the question whether work performed for the husband outside of household duties for the family was “separate” labor within the meaning of the statute. The court in that case upheld the husband’s right to recover for loss of his wife’s services “as milliner in conducting his millinery store”.

We have duly considered cases cited and relied upon by defendant, but with the exception of Kirkpatrick v. Metropolitan Street Railway Co., 129 Mo.App. 524, 107 S.W. 1025, we find none which qualifies or conflicts with Plummer v. Trost, supra. The Kirkpatrick case, decided by this court in 1907, is in direct conflict with Plummer v. Trost, supra, in that by a divided opinion our earlier brothers held that work by a wife as a clerk in her husband’s store would be considered as her separate labor as contemplated by the statute we have previously noticed. For that reason the court reversed a judgment awarding the plaintiff husband damages for loss of such services resulting from an injury to his wife. Pursuant to a vigorous dissenting opinion filed by Judge Ellison, the case was transferred to the Supreme Court which reversed the judgment on grounds other than that assigned by this court for so doing, and without notice or discussion of the question whether the wife’s services to plaintiff husband were her separate labor. See Kirkpatrick v. Metropolitan Street Ry. Co., 211 Mo. 68, 109 S.W. 682. We therefore regard the case of Plummer v. Trost, supported as it is by Plummer v. City of Milan and Blair v. Chicago & Alton Railroad Co., as controlling authority on the instant question, and reject the Kirkpatrick case because it is in conflict with the Supreme Court’s decision. Applying the legal pronouncements laid down in these cases to the facts in the record before us, we can conclude only that Mrs. Tryon did not intend that the work she bestowed on behalf of her husband in the operation of his business should be considered as her separate labor. There is nothing shown to indicate any intention on her part to separate the earnings of her labor from those of her husband or to claim any separate benefit therefrom, or that her employment in joint effort with her husband in his business was designed for any purpose other than to assist in providing support for their family. We rule accordingly that the right of action in question belongs to her husband and that the trial court prejudicially erred in refusing to admit evidence of his expenditures for replacement help on the ground he was not entitled to recover therefor.

In reaching the immediately foregoing conclusions we have duly considered argument on behalf of defendant that evidence of the cost of replacement help was properly excluded because it was not a “proper measure of damage in this case” for the reason it was “completely speculative”. We find no merit in this argument. The evidence in question was not offered to establish a legal measure of Walter Tryon’s damages, but only to be considered, subject to proof of the necessity and reasonableness of the expenditures, “as an aid to arriving at the value of her (Mrs. Tryon’s) services in connection with her helping in his employment”. It is the generally accepted rule that “evidence of the cost of hiring a substitute during the incapacity of the injured person is admissible, and may be considered by the jury in assessing damages”. 37 A.L.R. 2d 366, Ann o.: Damages — Cost of Hiring Substitute. As stated in 22 Am.Jur.2d, Sec. 163, p. 233, “The cost of hiring a substitute during the incapacity of an injured person is admissible in evidence and may be considered by the jury in awarding damages”. This rule is recognized by and followed by Missouri courts. In Liles v. Associated Transports, 359 Mo. 87, 220 S.W.2d 36, where an injured plaintiff who owned and operated a business necessarily hired replacement help while he was confined and unable to work, the Supreme Court said, “The cost of hiring those substitutes was some evidence of the value of his loss of time”. Cases cited and relied upon by defendant are distinguished by the factual situations therein presented.

Plaintiffs present one more point: that the trial court erred in overruling their motion for a new trial because the verdicts are so grossly inadequate as to demonstrate “they were the result of bias, passion, prejudice or partiality on the part of the jury”. There is no need to determine that question, inasmuch as the prejudicial errors previously noted are sufficient reason to set aside the judgment.

Accordingly, the judgment is reversed and the cause remanded for a new trial.

All concur.


author: CULLEN, Commissioner.

text:
    Frank JONES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 26, 1967.
    Edward H. Johnstone, Johnstone & El-dred, Princeton, for appellant.
    Robert Matthews, Atty. Gen., Lacey T. Smith, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CULLEN, Commissioner.

Frank Jones appeals from a judgment sentencing him to life imprisonment pursuant to a verdict convicting him of murder.

Appellant’s primary contention is that the evidence was not sufficient to establish the corpus delicti or his guilt. Lil-lard Bond and Jack Harris, who were tried separately for their participation in the same murder here involved and were convicted of voluntary manslaughter, made the same contention as to insufficiency of the evidence on their appeal. The contention was rejected in the decision on that appeal. See Bond and Harris v. Commonwealth, Ky., 414 S.W.2d 131 (decided February 17, 1967; rehearing denied May 19, 1967). The evidence in the trial of Bond and Harris (fully set out in the opinion on their appeal) was substantially identical with that on the trial of Jones. Our decision on the Bond and Harris appeal, of the question of sufficiency of the evidence, is dis-positive of the identical question on the instant appeal.

Appellant’s other contentions relate to the claimed invalidity of the seizure of certain items under a search warrant, which items were introduced in evidence over appellant’s objection and motion to suppress. Again these contentions are the same that were made on the Bond and Harris appeal, and the decision on that appeal is controlling. However, we are disposed to supplement here the discussion there of the search and seizure questions.

While the law of search and seizure is by no means clear and unequivocal, we think the propositions hereinafter stated are valid. First, the prohibitions against a search for “merely evi-dentiary material” (see United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, and Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647) are not applicable to a search for “instru-mentalities” of the crime. See Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399. While clothing worn by the accused during the commission of a homicide may not be a tool of the crime we believe it properly may be classed as an instrumentality in the sense of having been physically involved in the act of the crime. Therefore, it having been described in the search warrant, the bloody clothing of the accused was a proper object of search in the instant case.

Second, while engaged in a legitimate search under a search warrant describing specific articles, it is proper to seize stolen or contraband property, or property constituting the fruits of the crime, or instrumentalities of the crime, though the latter items are not described in the warrant. See Harris v. United States, supra, and Woo Lai Chun v. United States, 9 Cir., 274 F.2d 708, 79 A.L.R.2d 999. Accordingly, we think that the seizure of the tools in the instant case was justifiable not only on the ground stated in the opinion on the Bond and Harris appeal (that the tools were within the warrant description of “articles containing blood or signs of blood”) but on the further ground that the tools were stolen property or fruits of the crime, or instrumentalities of the crime.

As far as concerns the seizure of the piece of the wall of the bedroom bearing the alleged bloody handprint of the accused, it is our opinion that this was so closely related to the bloody clothing properly being searched for as to fall within the scope of a reasonable search and seizure. See Woo Lai Chun v. United States, supra; United States v. Howell, 3 Cir., 240 F.2d 149; Bennett v. United States, 4 Cir., 145 F.2d 270; United States v. Old Dominion Warehouse, 2 Cir., 10 F.2d 736. (The appellant suggests that the piece of wall should not have been admitted in evidence for the further reason that it was not mentioned in the return on the search warrant, but the authorities are the. other way. See Moore v. Commonwealth, 206 Ky. 779, 268 S.W. 563; 79 C.J.S. Searches and Seizures § 84, pp. 906, 907.)

The appellant’s final point in regard to the search is that the sheriff’s affidavit on which the warrant was issued stated a source only with respect to a part of the beliefs set forth in the affidavit. The affidavit did set forth the source of the sheriff’s belief as to the essential facts that an offense had been committed and that evidence material to a prosecution of the offense might be obtained under the search. It was not necessary that the affidavit set forth every element of the offense. See Commonwealth, for Use and Benefit of City of Pointsville v. Melvin, Ky., 256 S.W.2d 513; United States v. Eisner, 6 Cir., 297 F.2d 595. We think the affidavit was sufficient.

The judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    KENTUCKY STATE BAR ASSOCIATION, Complainant, v. Lloyd SLOAN, Respondent.
    Court of Appeals of Kentucky.
    May 5, 1967.
    Charles Cassis, Frankfort, for appellant.
    Lloyd Sloan, Glasgow, for appellee.
   PER CURIAM.

This proceeding was filed April 1, 1966, in this court pursuant to RCA 3.530. Proper rule was served on respondent in answer to which he filed response April 25, 1966, entering his appearance and admitting the charge that he practiced law without lawful authority.

Apparently respondent had been a practicing lawyer at some time in the past, as he stated in his response he “retired from active practice of law in 1950.” He may have been suspended for failure to pay annual dues, but that is neither here nor there. The charge is practicing law without a license, and he admits the charge.

The matter was duly certified to Honorable A. J. Bratcher, a regularly elected judge of a circuit court. Judge Bratcher held hearings on the charge and thereafter filed his report and recommendation dated December 13, 1966, recommending that respondent be found in contempt of this court and permanently enjoined from the practice of law in this Commonwealth.

We find complainant entitled to a confessed judgment. The report of the special commissioner is accepted. Accordingly, it is ordered by this court that respondent Lloyd Sloan is in contempt of this court and its rules pertaining to the practice of law. His fine is fixed at $25, and he is adjudged to pay the cost of this proceeding, for collection of which the clerk of this court will issue appropriate process. He is enjoined in the future from the practice of law in this Commonwealth.

All concur.


author: OSBORNE, Judge.

text:
    Ben J. BRUMLEVE, Jr., Appellant, v. Lynn BRUMLEVE, Appellee.
    Court of Appeals of Kentucky.
    June 16, 1967.
    James B. Young, Louisville, for appellant.
    Edwin W. Paul, Louisville, for appellee.
   OSBORNE, Judge.

Appellant and appellee were divorced in the Jefferson Circuit Court on December 6, 1963. Custody of the three minor children was given to appellee. Included in the divorce judgment was a separation agreement entered into by the parties which, according to its terms, required appellee to enroll the children in a parochial school.

The present controversy was touched off when appellant filed a motion for a ruling to require appellee to comply with this part of the agreement. Appellee countered appellant’s motion with a supplementary complaint in which she asked for an increase in the amount fixed for maintenance and support of the children, and approval of the court to a request that she be allowed to take the children with her to Dallas, Texas. The commissioner proceeded to hear the matter on the above points on October 22, 1965.

During the course of the hearing appel-lee testified that the contemplated move to Dallas was for the purpose of taking a job as a dress designer with “Fashions of Dallas, Inc.” She testified that this job would pay her $125 per week and that she was unable to secure comparable employment in Louisville. Appellant’s attorney attempted to cross-examine appellee concerning her motives for the trip and concerning any possible acquintances that she might have in Dallas. The thrust of this cross-examination seems to be that appellee has motives other than employment in the trip and these motives cannot be reconciled with the welfare of the children.

The commissioner sustained an objection to this line of examination. Appellant took the stand and proceeded to show that ap-pellee did not have the job which she claimed; Placed in evidence an affidavit of Cayce B. Shelton who is office manager for “Fashions of Dallas, Inc.,” that appel-lee had been interviewed for employment but the company had no commitment to employ her.

The commissioner terminated the hearing and declined to permit appellant to offer evidence that the contemplated trip would be detrimental to the best interest of the children. Apparently, the commissioner based his ruling upon Alcorn v. Alcorn, Ky., 388 S.W.2d 578 and other cases including Byers v. Byers, Ky., 370 S.W.2d 193 and Bowman v. Bowman, 313 Ky. 806, 233 S.W.2d 1020, wherein this court permitted a divorced mother to remove the children from the state when she remarried and wished to take up residence with her new husband. We are of the opinion these cases are not controlling in this situation. When a divorced mother remarries, it becomes necessary that she assume the residence of her husband, and the court is left with only the alternative of permitting the removal of the children to the new husband’s residence or denying the mother custody. Here appellee can show no such force compelling her to leave the jurisdiction. Therefore, it is incumbent upon her to justify the trip to Dallas in terms of the total welfare of herself and her children. If she is unable to do this then her request should be denied.

Mothers should be given considerable latitude in choosing where they will live. But when this right is challenged by the former husband and father of the children, she should offer some plausible reason for taking minor children out of the jurisdiction of the court to the prejudice of the visitation rights of the father. Mere whim is not enough. For a summary of authority see: 154 A.L.R. 552.

For the foregoing reasons we believe appellant should be permitted to present evidence to show that the trip proposed by appellee is not necessary to her welfare and is not in the best interest of the children.

The judgment is reversed.

All concur.

      . This ruling was upheld by the trial court.