author: HOWARD, Judge.

text:
    Robert G. POSTON and Tommie A. Poston, husband and wife, Appellants, v. CLARKSON CONSTRUCTION COMPANY, a Missouri Corporation, Respondent.
    No. 24215.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 4, 1966.
    Application to Transfer Denied May 9, 1966.
    Haskell Imes, Kansas City, for appellants.
    Gene Morris, Rogers, Field & Gentry, Kansas City, for respondent.
   HOWARD, Judge.

Plaintiffs brought suit for damages to their house allegedly caused by blasting done by the defendant Clarkson Construction Company. Trial to a jury resulted in verdict and judgment for defendant. The prayer of the petition was within the jurisdictional limit of this court.

In view of the issues presented a detailed statement of facts is not required. We will refer to the parties as they appeared below. The defendant Clarkson Construction Company was contractor for the construction of a segment of the Southeast Trafficway (1-70) in Kansas City, Missouri. In performing this contract, defendant conducted a blasting operation to remove a large amount of rock from a cut wherein the highway was to be built in the vicinity of plaintiffs’ residence at 3907 East 26th Street, Kansas City, Missouri. The blasting about which complaint is made occurred in the months of April, May and June, 1961. There were many blasts of varying intensity all along the highway right-of-way in this area. Plaintiffs contend that this blasting was of such force and intensity as to cause concussions and vibrations which damaged their house and property by causing cracks in the foundation or basement walls, and plaster of the upstairs walls of the house, cracks in the concrete front porch, in the retaining wall in front of the lot, in the driveway, and in the walls of the concrete block garage. Defendant contended that none of the blasts were of sufficient force or intensity to cause damage to plaster, which was the material involved most vulnerable to damage from blasting vibrations and concussions, and that none of the blasts were sufficient to damage the basement walls, front porch, retaining wall, driveway or garage.

Prior to the commencement of the trial, defendant apparently became convinced that plaintiffs would attempt to offer evidence from other residents in the neighborhood that their houses had been damaged by the same blasting. Defendant therefore presented to the court the case of Schaefer v. Frazier-Davis Construction Co., Mo.App., 125 S.W.2d 897, wherein the opinion was written by Judge Becker of the St. Louis Court of Appeals in 1939. There appears to have been considerable discussion, and perhaps a submission of briefs, on this issue, none of which appears in the record before us although the record does, contain references thereto. As a result, the court in chambers prior to trial announced that it felt compelled to follow the ruling in the Schaefer case, supra, and that it would not receive evidence of damage done to other houses in the neighborhood of plaintiffs’ house and that witnesses would be limited to describing the force of the shock or vibration from the blast in terms other than the damage to their own residences. The record reveals only one ground for objection urged by the defendant based on the Schaefer case, supra, and this is that to permit testimony by other residents of the neighborhood that their houses had been damaged by the blasting, would introduce collateral issues into the trial.

Plaintiffs introduced eight neighbors as witnesses. These witnesses lived in houses which substantially surrounded the house of plaintiffs. Pursuant to the prior ruling in chambers, the trial court refused to allow any of these witnesses to testify to damage done to their particular house. Apparently plaintiffs’ counsel, with the approval of the court, “coached” his witnesses not to mention damage to their property; however, some of the witnesses did refer to such damage. When this occurred the court would sustain an objection thereto, order such statement stricken, instruct the jury to disregard the testimony and admonish counsel for plaintiffs in very strong terms that it was his duty to see that these witnesses did not mention such other instances of damage caused by the blasting. The same rulings were made and the same actions were taken by the court when one witness stated that a blast threw broken rocks onto his property.

It is this action of the trial court in excluding all evidence of other instances of damage caused by the blasting, about which plaintiffs complain on this appeal. This presents the sole issue for our determination. There seems to be no argument against liability of the defendant if it is determined that the damage to plaintiffs’ house and property was, in fact, caused by the blasting.

As heretofore stated the trial judge considered himself bound by the decision in Schaefer v. Frazier-Davis Construction Co., Mo.App., 125 S.W.2d 897. It also appears that the trial judge felt himself bound by the construction of the holding in that case contended for by the counsel for defendant, that this case required the exclusion of all evidence of instances of damage to other property caused by the blasting because, and solely because, such evidence would introduce into the trial a collateral matter. Although the opinion in the Schaefer case is far from clear, it is believed that this contention of defendant is erroneous. The briefs considered the Schaefer case in conjunction with the prior case of Gibert v. Evens & Howard Fire Brick Co., 214 Mo. App. 207, 260 S.W. 790, wherein the same Judge Becker of the St. Louis Court of Appeals wrote the opinion in 1924. We shall likewise consider these two cases together.

In the Gibert case plaintiff claimed damage to her house and garage because of cracks in the walls and foundation thereof allegedly caused by blasting in a clay mine operated on the adjoining property by defendant. A witness for plaintiff testified that the same blasting caused cracks in her house. On appeal the court stated that such evidence was properly admitted because the court found that the location of the witness’s house, with reference to the point of the blasts, was practically the same as the plaintiff’s house. The court also pointed out that defendant’s objections to the testimony were properly overruled for the reason that the objections themselves were insufficient because based only on the contention that the evidence was “incompetent and irrelevant”. Thus it appears that the St. Louis Court of Appeals affirmed the trial court’s action in this case on two grounds (1) the evidence was admissible and (2) the objection was insufficient.

In the Schaefer case the exact nature of the testimony in question does not appear from the opinion. It is summarized as “testimony of owners of other property in the neighborhood of where plaintiffs’ property was located, as to alleged damage done to their property as the result of blasting on the part of defendant”. Likewise, the nature of the objection interposed to such evidence does not appear; it is merely characterized as “timely objection and exception”. The opinion, without discussion concluded that such evidence injected '“collateral and immaterial issues * * * into the case”, which resulted in surprise to the defendant and which would tend to confuse and mislead the jury. The opinion does not throw further light on the factual background of this issue, but plaintiffs in the present case in their brief state that they have examined the transcript and briefs filed in the Schaefer case, and that therein the appellant contended that the evidence under consideration did not concern houses which were in any way similarly situated to the house of the plaintiff; one house was located two and one-half blocks from plaintiff’s house and there was a mud seam underlying it which resulted in a cave-in of the supporting earth and consequent damage to the house and that no like occurrence affected plaintiff’s house. The opinion not only referred to this as being “collateral” but also as “immaterial”. It would thus appear that the ruling of the court in the Schaefer case was based upon a determination that the evidence was not logically material to the issue of damage to plaintiff’s property because the witnesses’ houses were not so situated as to be similar to the house of plaintiff. The court thus determined that the testimony was immaterial to the issues involved and therefore injected into the case an erroneously collateral issue. This conclusion is buttressed by a consideration of the cases cited in support of this ruling by Judge Becker. These are: “Rourke v. Holmes R. Co., 221 Mo. 46, 119 S.W. 1094, 133 Am.St.Rep. 468; Northcutt v. Springfield Crushed Stone Co., 178 Mo. App. 389, 397, 162 S.W. 747; Horr v. Kansas City Elevated R. Co., 156 Mo.App. 651, 137 S.W. 1010.”

In the Rourke case plaintiff claimed damage to his property from the construction and operation of an elevated street railroad along 8th Street from Walnut to the west in Kansas City, Missouri. He claimed damage by reason of encroachment on his easement for light and air and ingress and egress to his property on the corner of 8th and Main Streets. On the issue of damages defendant introduced evidence of increased rental value of other property in the neighborhood, some of which was a block or more away and on another street. It appears, at least inferentially, that the elevated railway did not run alongside this property. The court held that such evidence was not logically material to the issue of the amount of damage done to plaintiff’s property; that it did not throw any light on the question of plaintiff’s damage, and therefore introduced a collateral issue which tended to confuse and mislead the jury.

In Northcutt, plaintiff sued for damages to his property on the theory of private nuisance, which cause of action requires a special damage to the plaintiff different from that suffered by the general public, and the court therefore held that a showing of specific damage to other property was not admissible on the issue thus presented. In the Horr case plaintiff sued for personal injury claimed to have resulted when a sudden jerk of the street car caused her to fall off the platform. There was evidence that the same jerk threw her mother-in-law back into her seat and caused her injury. Plaintiff was then allowed to show, through the testimony of her father-in-law, that when he arrived home that evening his wife was still sick and she had not recovered from her injury up to the time of the trial. It was held that the extent of injury to another passenger had no relevancy to the issue of either the cause or the extent of injury to the plaintiff, and that therefore it was entirely collateral and not admissible.

From a consideration of these authorities relied on by Judge Becker in the Schaefer case, it appears that his fundamental ruling therein was that the evidence of damage to other property not shown to be situated similarly to that of plaintiff was immaterial and had no relevance to the issue in the case and, therefore, and as a result of such lack of relevancy, introduced an impermissible collateral issue into the case, which, because of its irrelevance, would amount to an unreasonable surprise to the opposing party and tend to confuse the jury. On this basis the holding in the Schaefer case is consistent with the conclusion reached by courts in comparable cases in Missouri and elsewhere, whereas, if his ruling were (as apparently contended by defendant) that any and all evidence of damage to other property was inadmissible solely because it would introduce a collateral issue into the case, such holding would be in conflict with the established rulings of the Missouri Supreme Court and of the appellate courts throughout the country.

As is demonstrated in 2 Wigmore on Evidence, 3rd Ed., Section 442, page 424 and Section 443, page 427, the capacity of a force (such as the blast here in question) to cause damage must be demonstrated on trial by circumstantial evidence for the simple reason that one cannot observe the concussions or vibrations that travel through the air or the earth and cause damage to the house in question. On the issue of whether or not the blast was of sufficient force or severity to cause the damage in question, evidence that it caused damage to other structures similarly situated has probative force. Thus if plaintiffs were permitted to prove by testimony of the witnesses here produced that the blasts caused damage to the houses surrounding plaintiffs’ house, such evidence would be directly and logically material to the issue and could properly be considered in determining whether or not these self same blasts caused the damage to plaintiffs’ house. It would be very strange if the blasts were of sufficient strength and force to damage houses all around plaintiffs’ house and yet the plaintiffs’ house escaped damage caused by the blasts, but by sheer coincidence the plaintiffs’ house at the self same time suffered damage in the form of cracked walls etc., which damage was caused by settlement of the earth and not by the blasts.

As is pointed out by Wigmore, supra, the objections of surprise to the opposing party and confusion to the jury from the introduction of these supposedly collateral issues is more apparent than real. In the instant case, it is apparent that there was no surprise since defendant sought and got a ruling on this very matter prior to the commencement of the trial. As to the matter of confusion of the jury, it is doubtful if such confusion would, in fact, result, but in any event, such confusion as might exist must be balanced against the hardship to be caused by denying plaintiffs the right to use evidence which is logically relevant to the issues presented. We should also consider that such evidence may well be the only method by which a plaintiff can prove his case. As is concluded by Wigmore, we feel that depriving the plaintiffs of such logical evidence is too great a price to pay to avoid some supposed confusion.

Such evidence of other instances of similar result from a common cause are only logically relevant when the essential circumstances are sufficiently similar to exclude a reasonable likelihood of the same result being produced by a different cause in the two instances. This is expressed by Wigmore, as follows, 1. c. 425: “The general logical requirement is, then, that when a thing’s capacity or tendency to produce an effect of a given sort is to be evidenced by instances of the same effect found attending the same thing elsewhere, these other instances have probative value — i. e. are relevant — to show such a tendency or capacity only if the conditions or circumstances in the other instances are similar to those in the case in hand.” Wigmore goes on to point out: “The similarity that is required is, in short, a similarity in essential circumstances, or, as it is usually expressed, a substantial similarity, i. e., a similarity in such circumstances or conditions as might sup-posably affect the result in question.” See also 32 C.J.S. § 584, p. 713.

The Missouri courts in other cases considering other fact situations have repeatedly recognized that where the same result is produced in several instances under the same circumstances, the other instances of such result are admissible to show that the result at issue was caused by the circumstances shown. Thus in Albers Milling Company v. Carney (Mo.), 341 S.W.2d 117, defendant counterclaimed for damage to his turkey flock, by reason of feeding moldy feed supplied by plaintiff, which resulted in the turkeys becoming ill and dying. Defendant produced four witnesses to show a like result in their flocks from feeding the same moldy feed. In considering the admissibility of the evidence as to the other instances of damage from moldy feed, the court said, l. c. 123:

“We think the court erred in sustaining the objections to said offers ,or proof. The evidence appears to have been material and relevant. The fact that other growers using plaintiff’s feeds (furnished by Moreland) received moldy feed from the same lot and about the same time defendants received the feed complained of would tend to corroborate defendants’ testimony to the effect that he received moldy feed. Also, the testimony of those witnesses that their turkeys became ill of the same disease that afflicted defendants’ turkeys, immediately after they ate the same type of moldy feed, would tend to prove that said disease is caused by the consumption of moldy feed. Our view that the evidence was admissible is supported by the following cases: Swift & Co. v. Morgan & Sturdivant, supra [5 Cir., 214 F.2d 115(4), 49 A.L.R.2d 924]; Maybach v. Falstaff Brewing Corp., 359 Mo. 446, 222 S.W.2d 87[7], and Brendel v. Union Electric Light & Power Co., Mo.Sup., 252 S.W. 635. See also 32 C.J.S. Evidence § 584, p. 438.”

Likewise, in the early case of Brendel v. Union Electric Light & Power Co., Mo., 252 S.W. 635 the Supreme Court held that where the essential conditions under which two or more similar results occur are the same or very similar, evidence of other instances of the same result constitutes evidence relevant to the issue of the cause of the happening in issue at bar, and such evidence is admissible. It has repeatedly been held that where the circumstances are the same or very similar, other instances of the same result are admissible to prove that the same result in the case on trial springs from the common cause. See Maybach v. Falstaff Brewing Corp., 359 Mo. 446, 222 S.W.2d 87; Golden v. C. R. I. & P. Ry. Co., 84 Mo.App. 59; E. C. Robinson Lumber Co. v. Lansdell, 215 Mo.App. 357, 253 S.W. 24; Cunningham v. City of Springfield, 226 Mo. App. 23, 31 S.W.2d 123, and Gober v. Revlon, Inc. (CA4) 317 F.2d 47.

No Missouri case considering this exact question in relation to blasting has been cited other than Gibert v. Evens & Howard Fire Brick Co., 214 Mo. 207, 260 S.W. 790, and Schaefer v. Frazier-Davis Construction Co., Mo.App., 125 S.W.2d 897, heretofore considered, and our research has revealed none. However, other courts have considered the question. Thus in Whitman Hotel Corp. v. Elliott & Watrous Engineering Co., 137 Conn. 562, 79 A.2d 591, the Supreme Court of Connecticut held that evidence of damage caused to another building farther away from the scene of the blasting than plaintiff’s building was relevant to prove the causal connection between the blasting and the damage to plaintiff’s building. The court said, 1. c. 79 A.2d 597: “Another group of rulings admitted testimony of damage done by the defendants’ blasting to property at a greater distance from the point of the explosions than the plaintiffs’ property. This evidence was relevant to the claim of the plaintiffs that the force of the explosions was sufficient to cause the damage of which they complained and, therefore, had a bearing on proving the causal connection between the blasting and the damage to them”.

Likewise in Benson v. Weaver (Court of Civil Appeals of Texas), 250 S.W.2d 770, affirmed, Weaver v. Benson (Sup. Court of Texas), 152 Tex. 50, 254 S.W.2d 95, it was held that it was error to exclude evidence of damage caused by the blast in question to another building closer to the scene of the blast than was plaintiff’s building. The court rejected the argument that such evidence should be excluded because it introduced collateral issue into the trial. The opinion pointed out that such evidence of damage to another building would tend to show the force of the blast and its destructive power and was relevant evidence properly to be considered by the jury in determining whether or not the force of the blast was sufficient to, and did, damage plaintiff’s building. See Harbison-Walker Refractories Co. v. Scott, 185 Ala. 641, 64 So. 547; Louisville & N. R. Co. v. Lynne, 199 Ala. 631, 75 So. 14; Ledbetter-Johnson Co. v. Hawkins, 267 Ala. 458, 103 So.2d 748; Linforth v. San Francisco Gas & Electric Co., 156 Cal. 58, 103 P. 320. In all of these cases the courts held that evidence of blasting damage to other buildings was admissible to show the “force, character and extent” of the explosions in question and that such evidence bears directly upon the issue of whether the same explosions were of sufficient force to, and did, cause the damage to plaintiff’s property.

In the case at bar the houses of the witnesses in question were in the same neighborhood as plaintiffs’ house. Some were closer to the highway right-of-way where the blasting occurred, and some were farther away. They pretty well surrounded plaintiffs’ house. Evidence that the blasting here in question did in fact damage some or all of these other houses would be logically relevant to the sole issue which was raised in this case, of whether or not the blasts were of sufficient force to cause the damage to plaintiffs’ property. This, of course, presupposes that all of the circumstances such as the location of the house, the construction thereof, and any possible intervening cause of damage, were substantially similar to plaintiff’s situation. Nothing to show any dissimilarity appears in the record now before us.

There was no question here but that plaintiffs’ house did in fact have numerous cracks in the plaster walls upstairs, the basement walls, the concrete porch, the retaining wall, the driveway and the concrete block garage. The real issue was whether or not these cracks were caused by the blasts set off by defendant, as plaintiffs claim, or by settlement of the house not connected with the blasting, as defendant claimed. We therefore conclude that such proffered evidence was logically relevant to this issue. It was admissible and the trial court erred in excluding it.

Plaintiffs also complain of the trial court’s refusal to admit an exhibit into evidence. This exhibit is not contained in the transcript and has not been filed with this court. It is not before us for examination and we can not rule thereon. Since the case will be retried plaintiffs’ attorney can no doubt remedy any defects in his submission of this exhibit if he is so advised.

Plaintiffs also complain that the trial court erred “in refusing to submit the issue under Count II of plaintiffs’ petition to the jury which was for punitive damage”. At the close of all the evidence, defendant filed a motion for directed verdict and the court indicated that it would deny the motion as to Count I, which was for compensatory damage, and would sustain the motion as to Count II, which was for punitive damages. Before the court entered its order it specifically gave plaintiffs’ attorney an opportunity to take any action that he might see fit. After discussion off the record, plaintiffs’ attorney announced that he involuntarily dismissed Count II without prejudice. Since the use of involuntary nonsuits has gone out of our practice, and since this action pertains only to that part of the cause of action referring to punitive damages, which can not stand alone but which are recoverable only in the event of the recovery of compensatory damages, there is nothing before us for review in this matter. This case must be retried and in view of the fact that plaintiffs dismissed Count II without prejudice, they will be free to amend their petition as they may be advised before such retrial.

For the error noted in the exclusion of evidence, the judgment herein is reversed and the cause remanded for new trial.

CROSS, P. J., concurs.

BLAIR, J., not participating.


source: Caselaw Access Project

author: CROSS, Presiding Judge.

license: Public Domain

text:
    UNION PACIFIC RAILROAD COMPANY, Plaintiff-Respondent, v. KANSAS CITY TRANSIT COMPANY, Inc., Defendant-Appellant.
    No. 24299.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 4, 1966.
    Application to Transfer Denied May 9, 1966.

      Harold T. V'anDyke, Kansas City, for appellant; Albert Thomson, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, of counsel.
    George T. Morton, Jr., and Allan L. Bioff, Kansas City, for respondent; Watson, Ess, Marshall & Enggas, Kansas City, of counsel.
   CROSS, Presiding Judge.

This is an action to enforce a contract obligation. A jury waived trial of the case resulted in a judgment that plaintiff Union Pacific Railroad Company recover of defendant Kansas City Transit Company, Inc. the sum of $8,378.39, with interest, a total of $10,263.52, as and for defendant’s agreed contributive share of the cost of repairing a viaduct approach. Defendant appeals.

Plaintiff, hereinafter generally referred to as “Union Pacific” is a railroad corporation engaged in interstate commerce as a common carrier of passengers, goods and merchandise. Defendant, hereinafter generally designated as “Transit”, is a Missouri corporation engaged in the business of transporting metropolitan passengers as a common carrier in Kansas City, Missouri. Prior to June 17, 1960, defendant was known as “Kansas City Public Service Company”, but on or about that date amended its articles of incorporation so as to change its name to “Kansas City Transit, Inc.”.

In 1884 the cities of Kansas City, Missouri, and Kansas City, Kansas, constructed a viaduct for general public travel over the tracks of the Union Pacific (and another railroad company) extending from 12th Street in Kansas City, Missouri, northwestwardly along James Street, into the State of Kansas, together wtih approaches to the viaduct.

In 1904 and 1905 the Metropolitan Street Railway Company, a predecessor of Transit, constructed a separate viaduct for its street railway tracks, located parallel with and on the westerly side of the James Street viaduct above referred to, and constructed an approach carrying its street car tracks, extending from 12th and Genessee to connect with its separate street railway viaduct near State Line.

In 1917 the city of Kansas City, Missouri, enacted Ordinance No. 30871 condemning the James Street viaduct and its 12th Street approach as “old, worn out and no longer safe for public travel”, and requiring Union Pacific to replace that portion of the James Street viaduct located in the State of Missouri with an entirely new viaduct structure and the Twelfth Street approach to that viaduct, all in accordance with prescribed dimensions, capacities and specifications, including the requirement that “The approach shall be of such strength and character as to permit the use thereof with a double track electric street railway by the Kansas City Railways Company, (successor of Metropolitan Street Railway Company and immediate predecessor of Kansas City Public Service Company), its successors and assigns”. The ordinance provided that the city pay a portion of the cost of construction ($8,114.70) and that the balance be paid by Union Pacific and Kansas City Railways in such proportion as “they may agree upon”. The ordinance reserved the viaduct and approach as property of the city “as and for a public highway” and made the city responsible for maintaining and repairing the structures, but provided that the cost of so doing shall be contributed and paid by Union Pacific and Kansas City Railways Company, or their successors, in “the proportion that each contributes toward the original cost thereof”. (Similarly, the City of Kansas City, Kansas, required the Union Pacific (and another railroad) to replace the remaining portion of the James Street viaduct, located in the State of Kansas, with an entirely new structure).

On October 14, 1917, pursuant to the mandate of Ordinance No. 30871, Union Pacific and Kansas City Railways Company entered into a written contract agreeing that Union Pacific “acting as agent for the joint account of both parties” would proceed to construct, at the joint expense of both parties, a new Twelfth Street approach to the James Street viaduct. The subject matter of the contract, insofar as it defined rights and duties of the parties, was limited to the approach and did not include the viaduct proper. The contract obligated Union Pacific to install a double lane of street car tracks on the approach running from Twelfth Street to a point near the Railways Company’s separate viaduct, and required the Railways Company to pay the sum of $13,000.00 as its proportion of the construction cost and expenses. With respect to the cost of maintenance and repairs, the parties agreed as follows:

“Sec. 8. That the entire amount of the cost and expense which the parties hereto are required to bear for the maintenance and repair of said 12th Street approach, except the cost of maintenance and repair of paving thereon, shall be apportioned between the parties hereto as follows:
Pacific Company .662/3%;
Railways Company .... 331/%;
Total . 100% ....”

Section 8 further provided that Railways would bear the entire cost of maintenance, repair and renewal of its tracks and the approach paving between the track rails and for a distance of 18 inches outside thereof. Pacific was obligated to bear exclusively the cost of maintaining and repairing all other parts of the paving.

During the years 1919 and 1920 Union Pacific reconstructed and replaced the James Street viaduct and the Twelfth Street approach pursuant to and in conformity with the requirements of the City’s Ordinance above referred to. And, in accordance with its agreement with the Kansas City Railways Company (1917 contract), as part of the reconstruction and replacement of the Twelfth Street approach, provided street railway tracks on that structure. In all respects Union Pacific has fully complied with the terms and conditions of the 1917 contract.

The obligations of the 1917 contract, on which the present action is founded, were expressly assumed by defendant as the result of a contract entered into on July 28, 1927, by and between Union Pacific and defendant, (then known as Kansas City Public Service Company).

Transit and its predecessors operated street cars over and along its tracks on the new Twelfth Street approach and on the separate street car viaduct with which it connected until July 6, 1956, hut on or about that date abandoned and discontinued the use of that particular street railway line, and commenced operating motor buses over the Twelfth Street approach and the James Street Viaduct. Since that time Transit has operated over the Twelfth Street approach and viaduct entirely by motor powered buses. Some time in 1956 Transit dismantled its separate street car viaduct, and, on August 5, 1957, conveyed to the city its track and right of way located on the Twelfth Street approach. Transit is not presently operating under franchise with the city but is operating solely under authority of the Missouri Public Service Commission.

On March 11, 1960, the city filed an application with the Missouri Public Service Commission requesting authority to make certain repairs to James Street viaduct, including the Twelfth Street approach, and for an apportionment of cost. Both Union Pacific and Transit were made parties to that proceeding. The Commission duly entered an order effective July 20, 1960, authorizing the city to repair the viaduct and approach as requested and ordered Union Pacific to pay 50% of the total cost of repair and the city to pay the remaining 50% of such cost. Included in the Commission’s finding is the following: “None of the cost and expenses occasioned by or involved in this proceeding is apportioned to or imposed upon Kansas City Public Service Company; and nothing herein contained is intended or shall be deemed to adjudicate or affect such contractual rights, if any, as Union Pacific Railroad Company may have to require said Public Service Company to bear a portion of the costs and expenses hereby imposed upon it”.

In the latter part of 1960 the city made extensive repairs to the James Street viaduct and the Twelfth Street approach as the Commission had authorized. The substructures of both the bridge and approach were rebuilt by the process of chipping out the “old and spoiled concrete” and shooting concrete back under pressure. Some of the iron hand railing, which was old and rusty, was replaced. There were no paving repairs except installation of one new expansion joint on the approach. The city’s engineer testified that the work done was “maintenance” and was due to fatigue, weather elements and age.

The total cost of the repairs to the approach structure was $50,270.33. Upon completion of the work the Union Pacific paid the city $25,135.16 as one-half the total cost, in compliance with the Commission’s order. Union Pacific then made demand on Transit, based on the 1917 and 1927 contracts referred to, for reimbursement of one-third of the amount it had been required to pay for repairs to the approach structure, in the sum of $8,378.39. Transit refused to pay and Union Pacific commenced this action. The terms of the resulting judgment are set out in the first paragraph of this opinion.

The foregoing statement of the facts and circumstances of the case conforms generally with the findings of fact made by the trial court. There is no factual dispute between the parties who are in agreement that the question presented by this appeal is “strictly a construction of this contract”.

Transit’s brief presents three theories of defense. In Point I Transit insists that Union Pacific has not been damaged by its failure to pay ½ of the repair costs that were allocated to and paid by Union Pacific because “Payment by the city discharged the obligation of Transit to pay”. In support of this contention Transit argues as follows: “Under the 1917 contract, the cost of the maintenance of the approach to the James Street viaduct was to be borne ⅜ by the Union Pacific and ½ by Transit. * * * The total cost of the 1960 repairs to the approach here in suit was * * * the amount of $50,270.33. Under its 1917 contract, the Union Pacific was obligated to pay %rds of that amount, or $33,513.54. The Union Pacific has only paid $25,135.16 * * * as its portion of the repair. The city paid the other half. It is easy to see that the Union Pacific has not even paid the 24rds that it was required to pay and yet it seeks recovery. * * * The Union Pacific can only recover if it is required to pay more than %rds of the cost of the repair. It has paid $8,000 less than %rds of the cost of repair and therefore has no cause of action against Transit. If the Union Pacific had paid more than it was obligated to pay (%rds) for maintenance of the approach, then it might have a cause of action against Transit. Here, it has paid less. Therefore, it has no cause of action against Transit”.

The foregoing theory is fallacious because it is founded on a misconception of the 1917 contract. That undertaking did not obligate Union Pacific to pay two-thirds of the total cost of repairs. In exact and unmistakable language it provided for apportionment, two-thirds to Union Pacific and one-third to Transit’s predecessor “ * * * of the cost and expense which the parties hereto are required to bear for the maintenance and repairs of said 12th Street approach”. (Italics added.) Thus the parties clearly expressed their mutual intention and obligation to share the cost of such future repairs as might be imposed upon either one, or both of them, in the agreed percentage portion, and to contribute, one to the other, accordingly.

When the 1917 contract was entered into, circumstances existed under which the parties could reasonably expect that some portion of future repair costs might be assumed by the city or allocated to it by the Missouri Public Service Commission. The 12th Street approach had been specifically reserved by the city ordinance as “the property of Kansas City, Missouri, as and for a public highway”. The city was empowered by the 1917 ordinance, if repairs became necessary, to proceed at once to make such repairs and to collect from Union Pacific and Transit their “respective” shares of the cost resulting. Most significant is the circumstance that the contract was made in contemplation of the Public Service Commission Law, which was enacted in 1913 and has continuously provided to the present time that the Commission may allocate a portion of the costs incident to maintenance of grade separation crossings, such as this case involves, to the “municipality or other public authority in interest”. V.A.M.S., Section 389.640; State ex rel. and to Use of Kansas City Southern Ry. Co. v. Public Service Commission, 325 Mo. 862, 30 S.W.2d 112. We must assume that the parties contracted with such contingency in mind, and that their agreement to apportion and share repair costs “which they were required to bear” referred to net amounts over and above any sum that might be allocated to and borne by the city as its share.

It is our view that the city’s payment of one-half the repair costs pursuant to order of the Public Service Commission had no effect on the operation of the contract, except to reduce the liability of both Union Pacific and Transit to one-half the sum each would have been obligated to pay if the city had not been required to contribute. Although the Commission’s order authorized the city to proceed with the repairs and allocated 50% of the cost to the city and 50% thereof to Union Pacific, it is apparent from the terms of the order that the Commission did not intend to diminish or destroy the obligation of Transit to reimburse Union Pacific for one-third of the sum it had been “required to bear” as repair costs and expense. This is clearly shown by the Commission’s recital that “ * * * (N)othing herein contained is intended or shall be deemed to adjudicate or affect such contractual rights, if any, as Union Pacific Railroad Company may have to require said Public Service Company to bear a portion of the costs and expenses hereby imposed upon it”. For that matter, the Commission was totally without jurisdiction in the premises. “Since the commission is not a court, it ‘has neither the power to construe contracts, nor to enforce them’ ”. Katz Drug Company v. Kansas City Power and Light Company, Mo.App., 303 S.W.2d 672.

Transit’s second point is a contention that the entry of judgment against it was error “because the contract upon which this suit is based is one terminable by either party”. Transit argues that the 1917 contract does not stipulate the length of time it shall be effective and binding on the parties, and is therefore terminable by either party. This submission is made in reliance upon general rules to the effect that (1) where no time limit is inserted in a contract for the performance of services or the furnishing of commodities, or in a contract in the nature of a joint adventure or indemnity, such contracts are terminable at the will of either party, and (2) that courts will construe a contract to impose an obligation or right in perpetuity only when the language of the agreement compels that construction.

The foregoing general rules are not applicable in this case for several valid reasons. In the first place, we do not regard the contract as imposing the maintenance obligation in perpetuity. To the contrary, we believe that the parties intended to place a definite limitation of time upon their agreement. We adopt this view under the rule that “the intention of the parties with respect to duration and termination of their contract is to be determined from the surrounding circumstances and by application of a reasonable construction of the agreement as a whole; and the duration of a contract may be implied from the nature of the contract or from the circumstances surrounding it”. 17A C.J.S. Contracts § 385(1), p. 457. In this connection, it is also the law that contracting parties are presumed to contract in reference to the existing law. It is commonly said that all existing applicable, relevant and valid statutes, ordinances, regulations and settled law of the land at the time a contract is made become a part of it and must be read into it. 17 Am.Jur.2d, Sec. 257, pp. 654-5. Also see cases digested in 7A Mo.Digest, Contracts, Under this rule the 1917 ordinance is of special significance. Since the parties entered into their contract under its compulsion, we believe that their contract necessarily reflects its objects and purposes.

In basic substance, the ordinance is a direction upon Union Pacific and Transit’s predecessor to effect construction of the Twelfth Street approach and James Street viaduct, “as and for a public highway”, and to contribute to the cost of maintaining and repairing those structures “as and for a public highway”. Therefore we believe that in determining the sense and purpose of the resulting maintenance agreement it should be read as if the words “as and for a public highway” had been incorporated therein by the parties. So understood, their mutual obligation to contribute to the cost of maintaining the approach would endure only so long as that structure stood “as and for a public highway”. Thus the contract limited its own duration.

Furthermore, it is a recognized principle of law that “where a contract has been fully performed by one party it cannot be terminated by the other”. 17A C.J. S. Contracts § 397, p. 477. For this reason alone, it must be held that the contract in suit is not terminable at Transit’s option. Union Pacific has fully performed its agreed undertakings, which include the dismantling of a predecessor Twelfth Street approach, the construction of the subj ect approach, the expenditure of a substantial sum of money as its proportionate share of the cost of constructing the approach, and the construction of a double line of street car tracks on the approach for the use and benefit of Transit. Under these circumstances Transit has no right to terminate the contract and avoid its obligation thereunder.

Finally, — even if the contract were of such a nature that made it terminable at the option of either party, Transit has taken no steps whatsoever to exercise such hypothetical option so far as the evidence and pleadings disclose. Therefore, it follows as a natural conclusion that the contract would still be effective and in force even though assumptively terminable. “A party may have the option to terminate the contract, either by virtue of express provision thereof * * * or by virtue of the fact that the contract fixes no period of duration and is terminable at will, * * *. However, notwithstanding a contract is voidable at the option of a party, some action on his part is necessary to rescind the contract, that is, he must manifest his election to terminate the contract, and before this is done the contract is not void. Mere intent to terminate a contract means nothing, since such intent, until carried into effect, may be changed, revoked or abandoned”. 17A C.J.S. Contracts § 396, pp. 476-477.

It is submitted in the third point of Transit’s brief that the judgment is erroneous “because, upon cessation of the use of the Twelfth Street Approach to the James Street Viaduct for carrying the tracks of the Transit Company, the reason for the obligation of the Transit Company to maintain the approach ceased”.

One of Transit’s arguments urged in support of the quoted proposition is that when the use of street cars was abandoned, Transit’s subsequent operations over the approach by motor bus placed it in the same category as all other members of the public so using the streets of the city as public highways. This would be a valid contention if Transit were not bound by its contract. Absent Transit’s maintenance obligation created by that agreement the cost of repairs would be subject to apportionment by the Public Service Commission in accordance with V.A.M.S., Sec. 389.640, in the application of which the Commission has taken the position that it will not apportion any costs of grade crossing repairs to a carrier whose only use of the structure was incident to the transportation of passengers by motor bus. See, In re Wabash Railroad Co., 2 Mo. P.S.C. (N.S.) 243.

However, the question as to what Transit’s position would be in the absence o£ the contract sued on is irrelevant to the present issue unless it can be demonstrated that the instrument is no longer valid. This Transit attempts to do by contending there is no longer any legal consideration to support the contract. Transit argues that “the sole purpose of the agreement was to allow its predecessor to place their street railways tracks on the approach, and to provide for the maintenance of the approach during the time it was used * * * in this manner”. Hence, Transit says, after the street car tracks were removed there was no longer any need to provide for the location of tracks on the approach, and that therefore “The only reason for the contract no longer existed”, and, that “defendant’s performance under the contract should be excused because there has been a failure of consideration”.

Again, Transit presents a false premise because, as we have stated above, the prime purpose of the 1917 contract was to provide for reconstruction and maintenance of a new approach and viaduct “as and for a public highway” to replace the former structures which had become “old, worn out and no longer safe for public travel”, all in compliance with the city’s order. It is true that references to street car tracks and their use were necessarily made in both the ordinance and the contract. We regard such references as incidental only, and ancillary to the substantive purpose of both documents. Consequently we reject Transit’s suggestion that the “sole purpose” of the contract was to accommodate street car tracks.

There has been no failure or lapse of consideration to excuse Transit from performing its contract obligations. Union Pacific furnished the consideration entitling it to performance by Transit when it built the approach promptly after execution of the 1917 contract and laid double lines of track to suit the structure for street car use, exactly as desired by Transit’s predecessor. For more than 35 years thereafter Transit and its predecessors enjoyed continuous use of those facilities' which, it is reasonable to assume, contributed materially to their deterioration and resulting need of repair. Furthermore, it is not disputed that Union Pacific has paid its agreed proportionate share of the cost of the structures involved — which, under the evidence appears to be two-thirds of the entire cost — or that it has performed its contract obligations fully, in all respects. It is the law that when a contracting party has fully performed its contract obligations it thereby acquires a vested right to performance by the other party in accordance with the contract terms. It was so held by the Supreme Court in the case of Kansas City v. Kansas City Terminal Ry. Co., 324 Mo. 882, 25 S.W.2d 1055. The facts there were that in 1909 the city had granted Terminal a franchise to operate railway lines through the city, requiring vacation of certain streets and thoroughfares, in return for which Terminal promised and agreed to construct viaducts at street crossings over its tracks, at its sole cost, whenever the city determined the reasonable necessity therefor. Subsequently the Missouri Public Service Commission Law was adopted, under which the Commission was authorized to apportion the cost of grade separation structures. Laws, 1913, Public Service Commission Act, Article III, Section 50, page 589 (present V.A.M.S., Section 389.640). Thereafter the city undertook to require Terminal to construct and pay for a viaduct at Oak Street , pursuant to the franchise contract. Upon Terminal’s refusal to comply, the city filed suit for specific performance. Holding that the city was entitled to the relief sought, the Supreme Court said, “The city having fully performed the contract on its part had, and has, a vested right to performance on the part of the company. Such vested right was not destroyed by the subsequent enactment of a police regulation of the character of the one involved”. So it is in this case. The change of condition resulting from Transit’s abandonment of street cars and its use of motor buses instead did not affect Union Pacific’s vested right to performance by Transit. It is of no consequence that Transit thereafter derived no utility from the abandoned tracks. “If the promisor gets what he bargains for there is no failure of consideration, although what he receives becomes less valuable or of no value at all”. 17 C.J.S. Contracts § 129, p. 848. Also see Vorchetto v. Sappenfield, 223 Mo.App. 460, 14 S.W.2d 685.

Transit’s argument on this point is in reality a contention that the contract should be construed as containing an implied limitation to the effect that its obligation to share future costs of repairing the approach would cease when its use by street cars might be abandoned. Transit says that the intention of the parties to so limit the agreement is shown by (1) the circumstance that street cars were in fact used when the contract was made, and (2) the incidental references to street cars and tracks (previously mentioned in our fact statement), that had been recited in the contract. • It is our opinion that the foregoing postulates do not establish by reasonable implication the “use” limitation pleaded for.

Those same submissions were also rejected as defenses by the Supreme Court in Kansas City Terminal Ry. Co. v. Kansas City Transit, Inc., 359 S.W.2d 698 (decided in 1962) — a suit by Terminal for (1) a declaration that Transit was obligated by certain ordinances to share the cost of maintaining viaduct and other street crossing structures over which it operates buses, and for a money judgment accordingly, and (2) a declaration that a 1917 contract between Terminal and Transit’s predecessor, Kansas City Railways Company, required Transit to pay Terminal one-third of the maintenance cost of the viaducts, subways and approaches mentioned therein, and likewise for a money judgment.

In deciding the Terminal case the Supreme Court made two determinations that bear vitally on the issues before us. The first question confronting the court was how to construe an ordinance which the City of Kansas City had enacted in 1909 granting Terminal a franchise to operate railway lines within the city and requiring Terminal to build viaducts and subways for the city streets it crossed. The ordinance contained a provision that before the city shall permit any company to “operate a streetcar line or lines over or upon any of the viaducts” constructed by Terminal it shall require payment of one-half the cost to Terminal by such company and also require it “to enter into a suitable undertaking to pay * * * one-half of the subsequent maintenance of * * * viaducts during the period of such use”.

Transit urged the court to hold that the ordinance should not be construed so as to impose a continuing obligation upon it to pay any viaduct repair costs after it ceased to use street cars and began to operate buses. It was argued by Transit that as a matter of law a bus is not a street car and the term “street car lines” used in Terminal’s franchise ordinances cannot mean or include bus lines; and, that to declare they have the same meaning is to rewrite the franchise and make and enforce a new contract instead of giving effect to the actual franchise contract. Rejecting these arguments the court held that “such use” did not refer solely to street cars — the agency of transportation in use when the ordinance was enacted — but that it meant use in the transportation of passengers as a common carrier, whether by street cars or by motor buses, and that consequently Transit was obligated to pay its share of maintenance costs as provided by the terms of the franchise contract.

The court next undertook to determine the meaning and effect of the 1917 contract between Terminal and Railways (Transit’s predecessor). The relevant contractual provision thereof is summarized in the opinion, as follows: “The cost of future maintenance (except of paving, provision for which is above provided) of each viaduct and subway mentioned in paragraph 2 and 3 hereof, and the approaches thereto, shall be paid one-third by the Railways and two-thirds by the Terminal”. Likewise, the court summarized Transit’s contentions as follows: “As to the 1917 contract, Transit says it must be construed in the light of surrounding circumstances, with reference to the original franchise ordinances and what was done under them, and also considering the provisions in this contract concerning its right to lay additional tracks and its obligation for paving along its tracks. So construed Transit says this contract ‘imposed no obligation upon Transit to contribute to Terminal for the maintenance of Terminal viaducts, subways or approaches used by Transit for the transportation by buses or any means other than streetcars’ ”.

Again the Supreme Court rejected Transit’s contentions and concluded that the maintenance obligation imposed by the above quoted contractual provision was unconditional and entirely unrelated to the manner of its use. The court said: “Coming to the 1917 contract, we find that, in stating the obligation of Transit to pay one-third of the cost of the specified viaducts and subways and one-third of the cost of future maintenance of the designated viaducts and subways, there was no mention whatever of tracks on them or the operation of streetcars over or through them. The obligation to pay was unequivocal and unconditional. Although elsewhere therein the right to put tracks on the station plaza was stated and the obligation to pave around tracks on viaducts and in subways provided, the obligation for the cost of future maintenance as well as the cost of building the new structures was stated unconditionally without regard to how they were to be used by Transit”. The court reached the final conclusion that “Our view as to the reasonable construction of the agreement (based on the ordinances and contract) considered as a whole is that the maintenance obligation continues as long as Transit continues to use the viaducts and subways for its business of surface transportation of passengers over them regardless of the kind of motive power and vehicles used for that purpose”.

Likewise in this case, Transit’s agreement to pay a proportionate share of repair costs was expressed “unequivocally” and was stated “unconditionally and without regard to how * * * (the structures) * * * were to he used by Transit”. We therefore rule, under the controlling effect of the Supreme Court’s decision in the Terminal case, and for all the reasons we have heretofore stated, that Transit’s obligation shall be enforced as written and without regard to whether its use of the approach is by street cars or by motor buses. Accordingly, we hold that Transit is liable on Union Pacific’s present demand and that it will remain under obligation to pay its agreed proportionate one-third share of “the entire amount of the cost and expense which the parties hereto are required to bear for the maintenance and repair of said Twelfth Street approach (except for paving)” — so long as that particular structure stands “as and for a public highway”. In our consideration of the issues we have carefully examined all cases and text authority relied upon by Transit, but we find nothing of substance therein to warrant different conclusions than those we have expressed.

The judgment is affirmed.

HOWARD, J., and FRANK W. HAYES, Special Judge, concur.

BLAIR, J., not participating.

      . See 17A C.J.S. Contracts § 398, pp. 478-480.

      . Paisley v. Lucas, 346 Mo. 827, 143 S.W. 2d 262; Superior Concrete Accessories v. Kemper, Mo.Sup., 284 S.W.2d 482.


author: MAUGHMER, Commissioner.

text:
    Madie A. HAASE, Appellant, v. INDEPENDENT AWNING COMPANY, Inc., and Aetna Casualty & Surety Company, Respondents.
    No. 24301.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 4, 1966
    Application to Transfer Denied May 9, 1966.

      James L. Muller, Kansas City, for appellant.
    Schwartz, Hoffman & Brockus, Leo T. Schwartz, Clarence B. Mitchell, Kansas City, for respondents.
   MAUGHMER, Commissioner.

The appellant and claimant, Madie A. Haase, is the widow of Theodore R. Haase, who died on September 7, 1960. She filed a claim for Workmen’s Compensation against his employer, the Independent Awning Company, Inc. and its insurer Aetna Casualty & Surety Company, alleging that his death arose out of and in the course of his employment. Her claim includes death benefits as dependent widow, a burial allowance of $374.98 and ten weeks’ temporary total disability payments, which she alleges had accrued prior to the death of her husband. The parties stipulated that the insured, during his lifetime, had been paid $40 in compensation covering a period from June 25, 1960 until July 11, 1960, and medical aid of $95 for the same period. The referee and the Industrial Commission each denied her claim in its entirety. Upon review by the circuit court the award or denial of the claim was affirmed. She has appealed to this court.

The evidence shows and it is conceded that during a part of the summer of 1960, up to and including June 27, Theodore R. Haase, then 50 years of age, was an employee of defendant Independent Awning Company, Inc., and such employment was covered under the provisions of the Missouri Workmen’s Compensation Act. The employer was fully insured by the defendant Aetna Casualty & Surety Company. The defendant Awning Company manufactures, sells and installs aluminum awnings. The work is seasonal, being heaviest from April until July, and again from September through October. Mr. Haase worked as a helper. His duties included installing or helping to install awnings.

On Friday, June 24, 1960, the deceased and Robert Raines, foreman, went to a residence in Kansas City, Missouri for the purpose of installing awnings; some shrubbery about three feet high extended outward eight to ten feet from the house and the deceased put the bottom of his ladder outside of the bushes and the top up on the wall. Foreman Raines went around the corner to hang other awnings and shortly thereafter heard Haase’s “ladder go down”. Raines ran back and found insured getting up out of the bushes and off the edge of the window well. In response to Raines’s inquiry if he was hurt, he said: “No, I don’t think so”. Raines hung the rest of the awnings with deceased lying down in the yard. Haase told Raines he had struck the left side of his body and it was “sore”. Mr. Haase worked eight and a half hours on the following Monday, June 27, 1960, but none thereafter. There is no showing as to why his employment terminated. Deceased first consulted a physician, Dr. Thomas Mc-Hale, M.D., on July 1, 1960. Dr. McHale also saw him on July 2, 5, 6, 7 and 11. His medical report mentioned under history, the fall from the ladder, and recited that deceased had struck his head and back, and had fallen on brick. Dr. McHale found some, blood on urinalysis and concluded there was a probable trauma to the bladder. He also found a fungus ear infection. X-rays of the skull were negative and revealed no fracture.

Dr. McHale referred Haase to the Al-tringer-Knight-Bunting Clinic for examination of the ear condition. He was examined by Dr. Bentley A. Nelson of that clinic on July 20, 1960. Dr. Nelson found wax in both ears and the canals slightly irritated. The ears were cleaned and the tympanic membranes then appeared to be normal and intact. Audimetric studies were obtained and these showed normal hearing in the lower frequencies with a moderate loss of hearing in each ear in the higher frequencies. Based upon his examination and tests, Dr. Nelson found no evidence of brain damage or injury to the middle ear or any head injury. The patient never returned to either Dr. McHale or to Dr. Nelson for any further attention.

On September 7, 1960, at about 10:30 a. m., the deceased was found lying unconscious on the sidewalk at 38th and Woodland Avenue. He had walked to this place from his home which was a few blocks distant. The sidewalk was dry and the weather was clear. The police and an ambulance were called and he was taken to General Hospital, where at 7:30 p. m. on that evening, he died.

Upon admission to General Hospital the examining physician reported an odor of alcohol. A small wound or cut was observed on the back of the head. Since he was unconscious upon admission, his wife was called and she was asked about his past conditions of health. She described his fall from the ladder on June 24, twelve weeks before, and said that since that time he had suffered with severe headaches.

Dr. Charles B. Wheeler, Jr., M.D., pathologist, and his assistant, Dr. Pope, performed an autopsy on deceased. They did not see him prior to death. They found skull fractures and two contusions over the right eye, all of which were fresh. There was no evidence of old and healed fractures or contusions. They did not find any indication of injury to the brain or brain stem that would have affected the organs controlling balarice or equilibrium. It was Dr. Wheeler’s opinion that if there had been any prior damage to the organs controlling equilibrium, it would have been manifested by atrophy of the eighth cranial nerve and there was no such atrophy. The post-mor-tem also revealed an enlarged heart. It was their conclusion that the fall backward on the back of his head on that same day cause hemorrhage, which in turn, caused the brain to swell and directly resulted in death.

Mrs. Haase, claimant and widow, described numerous symptoms of injury which she observed after the accident of June 24. She said he came home on that evening “earlier than usual”; “all stooped over”; “he was pale, his eyes were awful glassy”; “his head was a-hurting”; “his back was a-hurting”, and “his ears felt like they were stopped up”. She observed a bruise • on the back of his head. He was nauseated. His appetite was poor. He was nervous. When he operated the lawn mower he would get tired and dizzy and would sit down. He perspired and was irritable. He lost weight. On one occasion he cried and said: “I don’t think I’m going to be here very long”. He became careless and absent-minded. He couldn’t watch television and said his eyes didn’t focus right. She observed a yellow discharge on his bed pillow. He seemed to be losing his hearing. She described his health prior to June 24 as good.

Upon cross-examination Mrs. Haase admitted that her husband had a drinking problem, which she described as periodic. She said this was “partly” the cause of their being divorced in 1954. They remarried in 1956. He was off work at times because of drinking. The witness, foreman Raines, testified that Haase told him he was an alcoholic. He said he saw deceased a month or more after June 24, and he had been drinking. The General Hospital record also included a diagnosis of “diabetes by history”.

It is claimant’s theory that deceased, in the accident of June 24, sustained a brain injury — damage to his vestibular apparatus and function (sense of balance) which caused him on September 7 to fall over backward and sustain a skull fracture or fractures which led to hemorrhage and brain swelling, culminating a few hours later in death. More particularly, claimant contends that the June 24 fall resulted in damage to the vestibular nuclei in the brain stem or damage to the labyrinth in the ears, either of which could and likely would disturb the sense of equilibrium and hence result in the fall of September 7, which quickly terminated life.

To lend professional support, plausibility and possibly probability to her position, claimant submitted the testimony of Dr. Charles M. Poser, M.D., neurologist, and Dr. Morton Jacobs, M.D., psychiatrist. Neither of these medical experts ever saw the deceased. In response to hypothetical questions which described the circumstances of each fall and the array of symptoms as detailed by Mrs. Haase, each doctor expressed the opinion that deceased had suffered a concussion and resultant brain injury in the ladder fall of June 24; that the vestibular nuclei and eighth cranial nerve had been damaged, resulting in impairment of equilibrium control and leading to the final fall ten weeks later, which directly and almost immediately caused death.

We set forth in full the main and pertinent parts of the final award of the Commission :

“The Commission, first having considered the whole record, the evidence heretofore adduced, the stipulations of the parties, briefs and extended oral argument, finds and concludes as follows, to-wit:
“That the employee, Theodore R. Haase, sustained an accident on June 24, 1960, arising out of and in the course of his employment with the Independent Awning Company, Inc. but that he sustained no compensable disability as a result thereof. We further find that the dependent widow, Madie A. Haase, has failed to prove that there was a causal relationship between the accident aforesaid and the death of her husband, the said Theodore R. Haase, on September 7,1960.
“Compensation, therefore, must be and the same is hereby denied.
“Claimant’s theory, if we correctly understand it, is that (1) the deceased employee sustained injury to the vestibular nuclei in the brain stem or to the labyrinth in the ears as a result of the accident of June 24, (2) that this caused him to fall on September 7 and (3) that the fall resulted in skull fracture and sub-dural hemorrhage which were the immediate causes of death.
“Without fencing with each of the numerous contentions advanced in behalf of claimant’s hypotheses, we are convinced that this theory of the case can only be supported by piling favorable inference on favorable inference and these only if we exclude all other reasonable explanations not favorable to the advanced theory. For example, claimant would have us find that the deceased fell on September 7 as a result of a latent brain injury sustained on June 24. To do this we would have to ignore the following possibilities which, under the evidence, we believe are equally attractive; that he fell from lightheadedness or fainting (deceased had an enlarged heart); that he fell from acute alcoholism (deceased was a heavy drinker if not an outright alcoholic); or that the fall resulted from diabetic coma (deceased was a mild diabetic). In fine, we are asked to indulge in the rankest kind of guesswork, conjecture and speculation. Our fact finding function does not permit us to tramp these forbidden fields”.

In claimant’s first assignment of error it is asserted that the Commission erred in “ruling that claimant failed to prove a causal connection” between the accident of June 24, and deceased’s death on September 7. She asserts (a) “The causal relationship was established without any prohibited piling of favorable inference on favorable inference”, and (b) “The evidence does not establish or support other causes as being equally reasonable with that advanced by claimant so as to constitute failure of her proof to remove her case from the realm of speculation and conjecture”, and (c) that although the Commission considered her expert medical opinion evidence, it “erroneously believed the referee had correctly sustained objections to such evidence”.

Her second and only other assignment is that the Commission failed and refused to make full and complete “rulings of law” as requested. These requested rulings included the following:

(1) Does the Commission approve the “various rulings” of the referee as to admissibility of evidence ?
(2) Was there competent, substantial evidence to establish:
(a) Was deceased dizzy prior to the second fall and if so, was the dizziness caused by the first fall?
(b) Was the second fall caused by internal rather than external conditions ?
(c) Was deceased under the influence of alcohol at the time of his fall ?
(d) Was deceased suffering from a brain injury which caused the second fall?

It is our opinion that the findings of the Commission as set forth in the Final Award are sufficient to determine the case and it was not required to answer the specific questions as propounded by claimant and denominated Findings of Fact or Findings (Conclusions) of Law.

In a Workmen’s Compensation case claimant carries the burden of proof and must “produce evidence from which it may reasonably be found that the injury or death resulted from the cause for which defendant would be liable.” Seabaugh’s Dependents v. Garver Lumber Mfg. Co. et al., Mo. en Banc., 355 Mo. 1153, 200 S.W.2d 55, 62; Welker v. MFA Central Co-operative et al., Mo.App., 380 S.W.2d 481. Unless this burden is met and carried, even an affirmative finding by the Commission may not stand. The burden here was on claimant to show not only that the deceased suffered an accidental injury arising out of and in the course of his employment, but that his death resulted from such injury. Kerby v. Missouri State Highway Commission et al., Mo.App., 238 S.W.2d 464, 469.

The proper review procedure in a Workmen’s Compensation case was stated by this court in Love et al. v. Land et al., 356 S.W. 2d 105, 106, 107, as follows:

“The duty and scope of review by this court and by the circuit court in a workmen’s compensation case were well and fully stated in Long v. Mississippi Lime Co. of Mo. et al., Mo.App., 257 S.W.2d 167, 170:
‘An appellate court, in reviewing the evidence upon the basis of which the industrial commission made its award, must view the evidence in the light most favorable to the successful party below. Harper v. Home Imp. Co., Mo.Sup., 235 S.W.2d 558. Neither the circuit court nor the appellate court may substitute its judgment on the evidence for that of the commission. Both courts are authorized and bound to decide whether the commission reasonably could have made its findings and reached its result upon consideration of all of the evidence before it, i. e. whether the award made by the commission is supported by competent and substantial evidence, upon the whole record, Constitution of 1945, Art. V, § 22, V.A.M.S. (and cases cited)’”.

The Springfield Court of Appeals (Crow v. Missouri Implement Tractor Co. et al., 301 S.W.2d 423, 427) said it this way:

* * * nevertheless we must bear in mind that the award under consideration was adverse to claimant and that we are not here determining whether, if the award had been in favor of claimant, it might find necessary support. Karch v. Empire Dist. Elec. Co., 358 Mo. 1062, 1070, 218 S.W.2d 765, 770; Francis v. Sam Miller Motors, Inc., Mo., 282 S.W.2d 5, 13. Although, on judicial review, we are authorized to determine whether, upon the entire record, the Commission reasonably could have máde the ■ findings and award under consideration, this does not mean that we are to substitute our own judgment on the evidence for that of the Commission; but, on the contrary, we may set aside its findings and award only if they are clearly contrary to the overwhelming weight of the evidence, when the evidence in its entirety, including all legitimate inferences reasonably deducible therefrom, is viewed in the light most favorable to such findings and award”.

This court recently in Jacobs v. Bob Eldridge Constr. Co., Inc. et al., 393 S.W .2d 33, 35, defined the scope of review and said:

“In a Workmen’s Compensation case, the duty of the reviewing court is to determine whether the. award of the Industrial Commission is supported by competent and substantial evidence on the whole record, but it cannot substitute its own judgment on the evidence for that of the Commission. V.A.M.S., Const, of Missouri, Article V, Sec. 22. Nevertheless, the reviewing court is empowered to decide whether the Industrial Commission could have reasonably made its findings and reached its results on a consideration of all the evidence before it and should modify, reverse, remand or set aside a decision of the Industrial Commission if it is clearly contrary to the overwhelming weight of the evidence”.

On the question as to whether or not a second accident (which standing alone is not compensable) resulted from an earlier accident (which was compensable) the court in Oertel v. John D. Streett & Company, Inc. et al., Mo.App., 285 S.W.2d 87, 96, said:

“Whether a subsequent incident or accident is a part of a continuous chain of causation flowing from the original accident, or is an independent intervening agency, is a question of fact to be determined in each case by the Commission. If there is competent and substantial evidence on the whole record in support of the conclusion reached, the Commission’s finding will not be disturbed on appeal”.

It is clear that circumstantial evidence is admissible to prove or disprove a claim but as indicated in the opinion in Shrock et al. v. Wolfe Auto Sales, Inc., Mo., 358 S.W.2d 812, 815, the Commission must weigh such evidence and then declare a conclusion.

“There is of course no objection to the proof of either a claim or a defense to a claim by circumstantial evidence (100 C.J.S. Workmen’s Compensation § 547 (5), p. 595; Mulcahy v. Terminal R. Ass’n, (Mo.App.) 123 S.W.2d 235), but, neither may a fact be found, nor a claim or defense, nor an award be based upon mere speculation, suspicion or conjecture. 100 C.J.S. Workmen’s Compensation § 547(3), p. 590. * * * As to all the evidence, conflicting inferences may have been permissible but if so the commission had a choice (100 C.J.S. Workmen’s Compensation § 763(5), p. 1202) as it does with the credibility of witnesses and the weight to be given conflicting testimony”.

■ In Greer v. Missouri State Highway Department et al., Mo.App., 362 S.W.2d 773, the employee had arteriosclerosis and claimant contended that an incident at work caused a heart attack which occurred approximately two weeks later. The court held that it would be speculation and surmise to connect the two events and affirmed the award denying recovery.

Appellant has cited more than 70 cases which she says support her position. She calls our attention to Heppner v. The Atchison, Topeka and Santa Fe Ry. Co., Mo., 297 S.W.2d 497. This was an action for wrongful death. As in our case, the proof as to causation was supplied by circumstantial evidence and answers to hypothetical questions. The verdict and judgment was for plaintiff and it was affirmed. In the case before us we have a Commission finding not for claimant, but against her. Had the Commission found for claimant, the Heppner case would seem more likely to be applicable. American Veterinary Laboratories v. Glidden Co. et al., 227 Mo. App. 799, 59 S.W.2d 53 and Krug v. Mutual Life Ins. Co. of New York, 235 Mo.App. 1224, 149 S.W.2d 393, cited by appellant are subject to the same comment.

Appellant insists that the Commission’s findings, together with the award, constitutes a conclusion of law, which an appellate court may review and determine anew, as distinguished from a factual finding, which an appellate court must approve if it has substantial and credible evidentiary support. She says further that in such a reexamination we must view the evidence in the light most favorable to claimant. We disagree with this contention. As we view the award of the Commission it is a factual finding that claimant failed to meet the burden of proof requirement resting upon her, to show that deceased’s death on September 7, resulted from and followed in the wake of his fall on June 24. It further expressed the conclusion that to so hold would require indulging in guesswork, conjecture and speculation and the piling of inference on inference. Claimant says the question as to whether or not such a finding would require piling inference on inference presents a question of law which the circuit court on review, and this court on appeal, must decide. Again we do not think so. Stripped of its surplusage and trimmed down to its essential requirements, the award rules: (1) claimant failed to establish factually, in the judgment of the Commission, that deceased’s death resulted from the first accident and (2) consideration of all of the evidence makes it appear likely that the deceased’s death on September 7, resulted from independent causes — possibly diabetes or alcoholism, or a stroke. We say frankly that we are unable to determine to our complete satisfaction the actual cause of death. However, we believe claimant failed to establish to a reasonble degree of sureness the exact cause, and giving effect to the medical findings of Dr. McHale and Dr. Nelson, who saw and examined deceased, and the autopsy findings, we are inclined to seriously doubt if the June 24 fall was the actual and primary cause. Certainly we are unable to say that the Commission’s award denying the claim and in effect holding it was not shown that the death was caused by the June 24 accident is not supported by the evidence or is clearly contrary to the overwhelming weight of the evidence. We would be required to so find and hold before we would be justified in reversing the judgment of the circuit court which affirmed the award. These findings likewise lead to the conclusion that claimant is not entitled to recover a burial allowance or compensation benefits covering the period from July 11, 1960 until the insured’s death on September 7, 1960.

It appears that the award is supported by substantial, credible evidence and 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.