author: McMILLIAN, Judge. SIMEONE, Judge

text:
    STATE of Missouri ex rel. MISSOURI PACIFIC RAILROAD COMPANY, Relator, v. Hon. Herbert K. MOSS, Circuit Judge, Jefferson County, Missouri, Respondent.
    No. 36432.
    Missouri Court of Appeals, St. Louis District, En Banc.
    Dec. 9, 1975.

      Spradling, Drusch & Dillard, Walter S. Drusch, Jr., Cape Girardeau, for relator.
    Roberts & Roberts, Geoffrey L. Pratte, Farmington, for respondent.
   McMILLIAN, Judge.

This is an original proceeding in prohibition filed by the Missouri Pacific Railroad Company (hereafter Relator) to prohibit further enforcement of the trial court’s judgment in Reorganized School District No. 2 v. Missouri Pacific Railroad Company, Circuit Court of Jefferson County, Cause No. 39477. Because of the novelty of the problem presented the cause was transferred, without opinion, to a seven judge panel of the court. Thereafter supplemental briefs were filed and the cause re-argued.

The core issue for our decision is (1) whether an addition of prejudgment interest by the court to a jury’s verdict is in excess of jurisdiction so as to render void the judgment or whether such conduct on the part of the court was merely erroneous but not jurisdictional; (2) and if a court may not properly do so, whether a writ of prohibition will lie where there was an adequate remedy by appeal and the issue was not raised.

For reasons given herein, we hold that (1) the addition of prejudgment interest by the court was unauthorized and, therefore, erroneous; and (2) a writ of prohibition will not lie where there was an adequate remedy by appeal and the issue was not raised. Accordingly, we hold that the preliminary writ was improvidently granted, and hereby order that the writ be quashed.

Commencing in November, 1966, relator widened its right-of-way fourteen feet onto adjacent school property. The School Board (hereafter Respondent) filed an inverse condemnation action in April, 1968, in the Circuit Court of Iron County. Based on interrogatories and testimony, that court sustained respondents’ motion for summary judgment as to the fact that relator’s entry on the land had occurred on or about the first day of November, 1966; relator did not appeal. Thereafter, the cause was transferred to the Circuit Court of Jefferson County on a change of venue. A jury trial on March 27,1972 resulted in a verdict of $140,000 to which the court added interest at the rate of 6% per annum from December 1, 1966 — in effect, from the date of taking.

Relator appealed on the issue of measure of damages for the taking of school property but did not raise the interest issue. The judgment was affirmed by this court, 503 S.W.2d 153 (Mo.App.1973). On November 13,1973, a motion for rehearing or transfer was denied. On January 14,1974, an application to transfer was denied.

Relator forwarded to the Circuit Court of Jefferson County its check in the amount of $156,800 for the principal amount of $140,-000 plus interest of $16,800 from March 27, 1972 but omitting the prejudgment interest. The proceeds of the check were ordered distributed to respondent and thereafter, an execution was issued seeking the further sum of $54,250 as interest by virtue of the judgment. A motion to quash the execution was overruled by the trial court on June 10, 1974; relator did not appeal. On August 8, 1974 relator filed its petition for writ of prohibition. This court entered a preliminary writ of prohibition.

Relator asserts that the trial court exceeded its jurisdiction in two ways; in making an independent finding, not submitted to the jury in the instructions, at the time of taking; and in adjudging an award of interest, which was neither submitted to the jury in the instructions nor included in the jury verdict. On the latter point, relator relies on the implications of § 523.045, RSMo 1969. Respondent contends not only that the trial court had jurisdiction but also that this writ was not timely filed. Therefore, two issues are presented. First, whether the trial court’s award of prejudgment interest in an inverse condemnation ease was an act in excess of jurisdiction, and secondly, whether a writ of prohibition will lie in this situation.

Because of their constitutional dimension, lack of subject matter jurisdiction and lack of personal jurisdiction are defects which the law seeks to prevent the defendant from conceding or waiving. For these reasons, collateral attacks and multiple appeals are sometimes allowed in these situations. Our research indicates that most of , those cases which have allowed prohibition as a remedy for lack of jurisdiction have dealt with lack of subject matter jurisdiction, e. g., Randles v. Schaffner, 485 S.W.2d 1 (Mo.1972); State ex rel. Sisters of St. Mary v. Campbell, 511 S.W.2d 141 (Mo.App.1974); State ex rel. T. J. H. v. Bills, 504 S.W.2d 76 (Mo.1974); Farrar v. Moore, 416 S.W.2d 711 (Mo.App.1967). Here, jurisdiction over the subject matter and person are not in dispute.

It is true that the concept of jurisdiction includes not only jurisdiction over the subject matter and person but also the jurisdiction, or power, to act in certain ways. Farrar v. Moore, supra. However, once a court has jurisdiction over the subject matter and person, it is virtually impossible to distinguish acts in excess of jurisdiction from mere error or abuse of discretion. State ex rel. City of Mansfield v. Crain, 301 S.W.2d 415 (Mo.App.1957); Note, The Writ of Prohibition in Missouri, 1972 W.U.L.Q. 511 (Summer 1972). In those rare cases where prohibition was based on acts in excess of jurisdiction, the defect was so great and so clearly evident as to go beyond error. See State ex rel. Berbiglia v. Randall, 423 S.W.2d 765 (Mo.Banc 1968) (Entry of second judgment in case without vacating first had effect of improperly leaving cause with two judgments.).

Inverse condemnation is essentially a tort action for damages. Admittedly, in such an action, the interest would ordinarily begin to run from the date of judgment. But that is not to say that an award of prejudgment interest amounts to an act in excess of jurisdiction. Here, the trial judge had jurisdiction over the person and the subject matter and he had jurisdiction to enter a judgment. The addition of interest to the verdict may have been erroneous but there was no lack of jurisdiction. “A trial judge has jurisdiction to be wrong.” State ex rel. Schaper v. Stussie, 487 S.W.2d 49 (Mo.App.1972). Van Noy v. Huston, 448 S.W.2d 622 (Mo.App.1969), is dispositive on this very issue. There, the Springfield Court of Appeals held that an award of prejudgment interest contrary to the verdict was judicial error. Therefore, on the first issue, it is clear that there was no act in excess of jurisdiction.

Missouri courts have consistently maintained that prohibition is an extraordinary remedy, not a panacea for legal wrongs. E. g., State ex rel. Peering Milliken, Inc. v. Meyer, 449 S.W.2d 870, 873 (Mo.App.1970); State ex rel. Hilleary & Partners, Ltd. v. Kelly, 448 S.W.2d 926, 932 (Mo.App.1969). Mere error or irregularity or mistake is not a ground for prohibition. Delaney v, Police Court of Kansas City, 167 Mo. 667, 67 S.W. 589 (1902); State ex rel. T. J. H. v. Bills, supra; State ex rel. Schaper v. Stussie, 487 S.W.2d 49 (Mo.App.1972); State ex rel. Houser v. Goodman, 406 S.W.2d 121 (Mo.App.1966); State ex rel. City of Mansfield v. Crain, supra. In State ex rel. Terminal Railroad Ass’n v. Tracy, 237 Mo. 109, 140 S.W. 888 (1911), the Supreme Court of Missouri said, “The writ is always refused where it appears that the court has jurisdiction over the matter complained of.” An appeal from final judgment is, as a general rule, deemed an adequate remedy for the correction of all errors committed in the course of a trial. State ex rel. Vogel v. Campbell, 505 S.W.2d 54; State ex rel. Schaper v. Stussie, supra; State ex rel. Houser v. Goodman, supra. Denial of the writ does not necessarily mean that the trial court is error-free. State ex rel. Houser v. Goodman, supra; State ex rel. City of Mansfield v. Crain, supra; Missouri Bar, Missouri Appellate Practice and Extraordinary Remedies, § 9.5 (2d Ed. 1974).

“In such a case, however gross the error, irregularity or mistake, the writ does not lie, not because as is sometimes erroneously stated, there exist other adequate remedies, or such remedies are inhibited, but for the reason that there has been no usurpation or abuse of power.” F. Ferris, The law of Extraordinary Legal Remedies, 440-441 (1926).

Therefore, on the second issue, the writ will not lie to correct a non-jurisdictional error.

“It is also held, on the general ground that prohibition does not issue ex debito justitiae, that when the applicant has made out his prima facie case bringing it within the technical requirements of the law, the question still remains, does the real right and justice of the case call for this extraordinary remedy? In determining that question, if there is anything in the circumstances suggesting that the party has neglected to apply for relief that was reasonably available, then the writ should be withheld, at least until such relief has been sought. Ferris, supra, at 431—432, citing State ex rel. McCaffery v. Aloe [152 Mo. 466], 54 S.W. 494 (Mo.1899).”

Not only did relator have a remedy by appeal, but in fact it took an immediate appeal in which it did not raise the interest issue, and it delayed over two years before applying for this writ. Therefore, it would also have been within the discretion of the petitioned court to deny the writ, even if there had been acts in excess of jurisdiction, because relator neglected to utilize other available remedies.

Alternatively, commentators have suggested that the case law on prohibition can be reconciled by the use of a pragmatic test:

“When it appears that the relator will be irreparably injured unless he is allowed an immediate review of the lower court’s conduct, upper courts have been willing to issue prohibition, even if the concept of excess of jurisdiction must be strained or even distorted. . . . One solution to the confusion is to recognize that it is probably impossible to differentiate adequately between error and abuse of discretion, and to establish guidelines for the use of the writ based upon whether other adequate remedies for the relator do or do not exist.” W.U.L.Q., supra, 1972, at p. 526.

Applying the “pragmatic test” it is clear that prohibition is not appropriate in the case at bar. Relator’s situation was not such that raising the interest issue in the ordinary course of appeal would have subjected it to irreparable loss, delay, or deprivation of rights. This situation is distinguishable from those in which prohibition was allowed despite an available appeal, because appeal was not an “adequate” remedy. See State ex rel. Vogel v. Campbell, supra (A judgment on a verdict which is held in abeyance until the remaining parties are disposed of is not appealable.); Giacopelli v. Clymer, 521 S.W.2d 196 (Mo.App.1975) (Public office would have been left vacant pending appeal.); State ex rel. Berbiglia v. Randall, supra (Judgment was void but there was nothing to prevent its enforcement.); State ex rel. Sisters of St. Mary v. Campbell, supra (Where lack of subject matter jurisdiction was clear because pleader could not state a cause of action of which circuit court would have jurisdiction, prohibition would lie to prevent needless expense and vexation of an appeal.)

Moreover, from the standpoint of policy, it is not reasonable to protect this relator from error from which it could have protected itself. Unlike lack of subject matter jurisdiction, this error does not relate to the organization of the judicial system or of government, nor does it rise to constitutional stature. Therefore, this error is not the kind that the law would seek to prevent the defendant from conceding or waiving, nor is it the kind that the law considers such as to justify two or more appeals where one should do. This is merely an attempt to use a waivable trial error as the ground for a collateral attack on the judgment. Here, the error was raisable on appeal, and appeal was available. The prevention of piecemeal petitions for relief from appellate courts is at least as serious a policy as is the prevention of piecemeal lawsuits (res judicata); and for that reason, non-jurisdictional error, however serious, is waived if it is not raised on appeal.

The preliminary writ of prohibition is hereby quashed.

SMITH, P. J., and CLEMENS, DOWD and RENDLEN, JJ., concur.

SIMEONE, J., dissents with opinion in which GUNN, J., concurs.

KELLY, WEIR and STEWART, JJ., not participating.

SIMEONE, Judge

(dissenting).

I must respectfully dissent. I believe that our preliminary writ of prohibition should be made absolute.

Relator seeks to prohibit the respondent from further enforcement of a part of a judgment of the trial court rendered on March 27, 1972, awarding prejudgment interest in an inverse condemnation case from the date of “taking,” December 1, 1966.

For a clear picture of my reasons, I reiterate some of the essential facts. In April, 1968, plaintiff, Reorganized School District No. 2, filed an inverse condemnation action against relator-defendant, Missouri Pacific Railroad, for the taking of a portion of the School District’s campus in Ironton, Missouri and subsequent damage to the remainder of the campus.

On March 27, 1972, the jury returned a verdict in favor of the School District in the amount of $140,000. On the same date the trial court entered its judgment that the School District have and recover from the Railroad the sum of $140,000 for land appropriated by the defendant, Railroad, and then added in the judgment that:

“. . . The Court further finds that the entry upon the appropriation [sic] of plaintiffs [sic] land occurred in November, 1966 and that plaintiff shall have and recover in addition to said sum, interest thereon at the rate of 6% per annum from December 1, 1966 and that the cost [sic] be assessed against defendant and that execution issue therefor.”

In due time the Railroad-relator appealed the judgment of inverse condemnation to this court. This court affirmed. Reorganized Sch. Dist. No. 2 v. Missouri Pacific R. Co., supra. The issue of interest on the judgment of $140,000 was not appealed in that proceeding.

On April 16,1974, the Railroad forwarded to the circuit court of Jefferson County its draft in the amount of $156,800.00, which represented the amount of the verdict plus interest thereon from March 27, 1972, until March 27, 1974. The School District executed a partial satisfaction of judgment, and the proceeds of this draft were ordered distributed to the School District on or about April 25, 1974. Thereafter, the School District petitioned that a general execution be issued returnable May 28, 1974, for a further sum of $54,250 apparently representing interest from the date of “taking,” December 1, 1966, to 1972.

The Railroad filed its motion to quash execution on May 28,1974, which was overruled on June 10, 1974. No appeal was taken.

This petition for prohibition followed and was filed on August 8, 1974. The relator prayed that we issue our preliminary rule “because the trial court’s action in assessing interest . . . from the time of the alleged taking in November, 1966, until the date of the jury verdict [March 27, 1972], without submitting either the issue of the time of the taking or of the assessment of interest to the jury” exceeded its jurisdiction. Relator prayed that the trial court be prohibited from “issuing any further execution or in any way further enforcing the judgment and verdict rendered against this defendant on March 27, 1972, except for interest on the jury verdict of $140,000.00 from and after March 27, 1974 until the proceeds from defendant-relator’s draft in the amount of $156,800.00 were disbursed to the plaintiff on or about April 25, 1974.”

The thrust of the petition of the prohibition and the pleadings filed in the cause is that the relator seeks to prohibit the trial court from any further enforcement of its order entered on March 27, 1974, which added onto the jury’s verdict interest in the amount of 6% from the date of the “taking” of the School’s property. The true issues in this case, as I perceive them, are (1) whether the trial court exceeded its jurisdiction by adding 6% interest on the amount of the $140,000.00 from the date of the “taking”— December 1,1966 — and (2) whether prohibition is the appropriate remedy when the Railroad-defendant did not appeal that issue to this court in Reorganized Sch. Dist. No. 2 v. Missouri Pacific R. Co., supra.

In essence, respondent argues that § 523.-045, RSMo 1969, authorizes the trial court, in an inverse condemnation case, to award interest from the date of the “taking” to the date of the judgment. It contends that § 523.045 which allows prejudgment interest in a direct condemnation case is equally applicable to inverse condemnation cases and relies on several decisions including Wells v. State Highway Commission, 472 S.W.2d 876 (Mo.App.1971), trfd. to S.Ct. 503 S.W.2d 689 (Mo.1973).

I do not believe that the Wells decisions, supra, are dispositive of the issues presented by this original proceeding, and I believe, for reasons hereinafter stated, that the trial court exceeded its jurisdiction in entering its order of March 27, 1972, adding six percent interest from the date of the “taking” — December 1, 1966.

An examination of the two Wells decisions does not substantiate respondent’s claim. In Wells, certain landowners brought inverse condemnation proceedings against the State Highway Commission for damage to their lake caused by the accumulation of silt and mud from highway construction. The jury rendered its verdict in favor of Wells, one of the landowners, in the amount of $11,000. The trial court added to this verdict $4,235, representing interest from the date of the taking to the date of the judgment, pursuant to § 523.-045. The Highway Commission appealed to the Missouri Court of Appeals. This court transferred the cause to the Supreme Court because the total judgment ($15,235) exceeded the jurisdictional limit ($15,000) which was in effect on the date notice of appeal was filed. I do not believe, as respondent contends, that this court “specifically held that such interest was properly allowed pursuant to Section 523.045 R.S.Mo. (1969), as damages in the nature of interest for delay in payment of compensation.” The court merely held that such interest, incorporated in the judgment by the trial court, was part of the judgment and as such became part of the amount in controversy to be considered in determining the jurisdictional amount for purposes of our jurisdiction only. Nor do I believe that the Supreme Court upon transfer, 503 S.W.2d 689 (Mo.1973), approved court awarded prejudgment interest. The sole issue was whether substantial amounts of mud from highway construction into the owner’s lake constituted a taking which entitled the landowners to recovery. The issue of court awarded prejudgment interest was not presented for a thorough determination and although the judgment of the trial court against the highway commission was affirmed, such affirmation did not, in my opinion, condone the trial court’s action in awarding prejudgment interest. The Supreme Court expressly stated that . .no point is made on the amounts of the damages. The sole question here is whether a verdict should have been directed.” 503 S.W.2d at 690.

Respondent’s claim, that § 523.045 is equally applicable to inverse condemnation cases, requires an examination of the case law prior to the enactment of this statute.

Two cases prior to the enactment of § 523.045 can be said to stand for the proposition that in direct condemnation cases the condemnee is entitled to court awarded interest to be added to the jury verdict. Arkansas-Missouri Power Company v. Hamlin, 288 S.W.2d 14 (Mo.App.1956); State ex rel. State Highway Commission v. Galloway, 292 S.W.2d 904 (Mo.App.1956). In each of these cases the condemnee filed a motion after entry of judgment seeking a modification or amendment so as to include in the final judgment an amount of interest on the amount in excess of the jury verdict over the commissioners’ award for the period between tk date of the taking and the date of the entry of judgment. The trial court denied relief of interest in Hamlin, but in Galloway the condemnees’ motion for amendment for interest from the date of the commissioners’ award was sustained. Affirming in Hamlin and reversing in Galloway, the Springfield Court of Appeals held that the trial court could not modify the judgment so as to include an amount of interest because a timely motion had not been made and the judgment had become final. However, in each of these cases, it was clearly indicated that the condemnee is entitled to prejudgment interest and where timely motion is filed it is the duty of the trial court to award such interest and include it in the judgment.

But thereafter, the Supreme Court, in State ex rel. Highway Commission v. Green, 305 S.W.2d 688 (Mo.1957), disapproved of the power of the trial court to award interest from the date of the appropriation and specifically denied power to the trial court to add interest on a jury verdict and thus effectively overruled Hamlin and Galloway to the extent that they indicated such power existed in the trial court to add interest to a jury verdict. Recognizing that prejudgment interest may be warranted in a particular case, the court in Green stated:

“We do not agree with the views expressed in the Hamlin and Galloway cases relating to the power and duty of the trial court to add interest. If it is essential (which we do not decide) to the constitutionality of our statutory condemnation procedures that interest be allowed under the instant circumstances, we have the view that it must be either computed by the jury and included in its verdict, or, if it be desired that the trial court add the interest in the judgment, the authority so to do must be provided by a specific statute. Stated conversely, we have concluded that a trial court does not have the power to add any amount to the sum fixed by the jury in its verdict (except when authorized by statute) but must enter a judgment for the sum stated therein. . . . [Until authority is granted by statute] we have the view . that the courts do not have the power to add interest to the amount of the verdict. . . . ” 305 S.W.2d at 693, 695 (emphasis added).

•The procedure for awarding interest by the trial court was settled by statute following Green, supra. Section 523.045, enacted by the General Assembly in 1959 apparently because of the invitation of Green, supra, provides for prejudgment interest in direct condemnation proceedings to be awarded by the court. That section provides that (1) if, within thirty days after the filing of the commissioners’ report the con-demnor does not pay the amount of the award, interest on the amount of any subsequent verdict shall be added to the verdict from the date of filing the report, and (2) if within thirty days after the report the con-demnor shall have paid the amount of the commissioners’ award, interest on the amount by which the verdict exceeds the award shall be paid from the date of the filing of the commissioners’ report.

Thus, the General Assembly responded to the solution posited by the Supreme Court in Green, supra.

Section 523.045 deals specifically with the power of the court to award interest, not authorized by Green, supra. Section 523.-045 did not create any new substantive rights. It is a procedural statute authorizing the court to award prejudgment interest to the condemnee.

Inverse condemnation proceedings are not, as respondent suggests, identical to direct condemnation proceedings. A prayer for damages in an inverse condemnation action is addressed initially and directly to the trier of fact — court or jury. There is no procedure comparable to the commissioners’ report. There is no “commissioners’ award.” There is no comparable procedure as authorized by chapter 523, RSMo, so that it is impractical to determine the amount of interest on an “award” until the jury returns a verdict. In an inverse condemnation case, it is impossible to determine the date of the taking until determined by the triers of fact. These differences, in our opinion, preclude mechanical application of § 523.045 to inverse condemnation cases.

I cannot, therefore, interpret § 523.045 as empowering a court to add interest to the verdict from the date of the appropriation or “taking” in an inverse condemnation case. I would hold, as in Green, supra, that “if it be desired that the trial court add interest in the judgment, the authority so to do must be provided by specific statute. Stated conversely, I have concluded that a trial court does not have the power to add any amount to the sum fixed by the jury in its verdict (except when authorized by statute) but must enter a judgment for the sum stated therein.” Green, supra, 305 S.W.2d at 693.

Even if I were to assume that the School District had a valid claim for prejudgment interest which could have been presented to the jury and such interest awarded, the trial court under these circumstances and under the authorities was, as in Green, powerless, in the absence of specific statutory authority, to add interest to the jury verdict and include it in its judgment.

Policy demands a cautious approach to an award of prejudgment interest in inverse condemnation cases. There is no statutory or constitutional authority marking the time of “appropriation,” unlike direct condemnation proceedings. In a direct condemnation case, the statute acts as a limitation on the amount of time prejudgment interest may be awarded. In an inverse condemnation case, there is no such limiting statute.

I would conclude that in an inverse condemnation proceeding the trial court, in the absence of specific statutory authority, is powerless to add interest to the verdict of the jury.

I then turn to the issue of whether prohibition is a proper remedy. Respondent maintains that relator’s petition of August 8, 1974, is merely an attempt to file an out of time appeal from the trial court’s order of June 10,1974, overruling relator’s motion to quash execution. And the majority holds that since the relator did not appeal, the writ will not lie. I disagree.

It is often repeated in the courts of this state that the function of the writ of prohibition is to confine the lower court within its proper jurisdiction and to prevent it from acting without or in excess of its jurisdiction. State ex rel. Sisters of St. Mary v. Campbell, 511 S.W.2d 141, 148 (Mo. App.1974); State ex rel. St. Louis County v. Jones, 498 S.W.2d 294, 299-300 (Mo.App.1973); State ex rel. T. J. H. v. Bills, 495 S.W.2d 722, 725-726 (Mo.App.1973).

While it is generally stated that prohibition cannot be resorted to when the ordinary and usual remedies, such as an appeal, are adequate and available, yet this is not an inflexible principle. “[Tjhese principles have their limitations and exceptions. (1) The writ is properly invoked to restrain the enforcement of orders beyond or in excess of the authority of a judge and to keep a court within the compass of its jurisdiction. . (2) Where the relator is not given a reasonable opportunity to seek a writ of prohibition, the writ has issued. . . . ” State ex rel. Vogel v. Campbell, 505 S.W.2d 54, 58 (Mo.banc 1974).

I believe that prohibition is proper in this instance, since the “writ is properly invoked to restrain the enforcement of orders beyond or in excess of the authority of a judge and to keep a court within the compass of its jurisdiction.” From the earliest days, the true function of the writ is to confine a judicial tribunal within proper limitations of judicial action, and when a tribunal exceeds those limitations, it is the duty of an appellate court to issue the writ.

Prohibition is not merely a remedy to redress a petitioner’s claim but it is a means by which a court may secure and insure regularity in and limitations of judicial proceedings. And while prohibition is ordinarily a preventive rather than a corrective remedy, the remedy is available when a judicial body is proceeding in excess of its jurisdiction and some part of its duties remains to be performed. State ex rel. Taylor v. Nangle, 360 Mo. 122, 227 S.W.2d 655, cert. den. 340 U.S. 824, 71 S.Ct. 57, 95 L.Ed. 605 (banc 1950); St. Louis K. & S. R. Co. v. Wear, 135 Mo. 230, 36 S.W. 357, 363 (1896).

I believe that this is one of those situations where the record before us calls for the remedy of prohibition for the reason that the trial court in adding prejudgment interest to the verdict acted outside the limitations of its jurisdiction.

I conclude that the respondent’s contentions are without merit and that the remedy of prohibition is proper.

By this ruling I do not say that prohibition is available as a substitute for appeal for any grievance which might be redressed in the ordinary course of judicial proceedings. But where a judicial tribunal renders a judgment in excess of its jurisdiction, it is our duty to limit such excess and confine a tribunal within its proper limits.

I would hold that the trial court exceeded its jurisdiction in awarding interest from the date of the “taking” — December 1,1966 —to the entry of the judgment, March 27, 1972 and that prohibition is the proper remedy.

I would make the preliminary rule heretofore issued absolute.

GUNN, J., concurs.

      . This the traditional view. However, in some states, such as California and Washington, the writ is applied liberally to remedy almost any legal defect. Note, The Writ of Prohibition in Missouri, 1972 W.U.L.Q. 511, 512 (Summer 1972).

      . The respondent was prohibited from “issuing any further execution or in any way enforcing the judgment and verdict rendered against defendant [Missouri Pacific] on March 27, 1972, except for interest on the jury verdict of $140,000.00 from and after March 27, 1974, until the proceeds from defendant-relator’s draft in the amount of $156,800.00 were disbursed to the plaintiff on or about April 25, 1974 . The relator contends that the court could not assess interest from November, 1966, the date of the “taking,” to the date of the judgment, March 27, 1972. The relator does not contest that it owes interest from March 27, 1972, to March 27, 1974 — the date the relator paid money to the court for the distribution to the School District. Neither does relator contest the fact that the issue of prejudgment interest could have been submitted to the jury for its determination.

      . Prior to trial, a motion for summary judgment filed by the School District was granted against the Railroad “to the extent that appellant [Railroad] did take a fourteen-foot strip for the length of [the School District’s] property and did anchor the overpass on nineteen feet of Madison Street. No appeal was taken from the summary judgment.” Reorganized Sch. Dist. No. 2 v. Missouri Pacific R. Co., 503 S.W.2d 153, 156 (Mo.App.1973).
      Although the briefs indicate that the summary judgment found that the date of taking was November, 1966, there is nothing to indicate that the order of summary judgment so held. The respondent argues that the “date of entry upon plaintiff’s premises and, hence, the date of taking was fixed by Summary Judgment.” But the trial court never so found in its order of summary judgment. In this court on appeal, the issue of date of taking was important only insofar as whether Instruction No. 3 was proper.
      Regardless of the date of taking, the true issue is whether the trial court exceeded its jurisdiction in awarding 6% interest from the “date of taking.” There was evidence in the trial that the construction began in November, 1966.

      . The respondent contends that the “exact judicial act from which relator seeks the extraordinary relief of prohibition is the Trial Court’s Special Order, after final judgment, overruling relator-judgment debtor’s Motion to Quash Execution,” entered June 10, 1974. Respondent contends that relator had a right to appeal the order overruling the motion to quash, since it became a final judgment after thirty days. Rule 75.01. Flynn v. Janssen, 266 S.W.2d 666 (Mo. 1954); Carrow v. Carrow, 294 S.W.2d 595 (Mo.App.1956). These cases involved a direct appeal, and the extraordinary writ of prohibition was not involved. In Flynn, supra, it was held that the court had jurisdiction to enter the particular order; in Carrow, an order overruling a motion to quash execution issued on judgment for child support was appealable. These cases are not dispositive of the particular issue raised in this proceeding.

      . § 523.045 provides: “If, within thirty days after the filing of any condemnation commissioners’ report under the provisions of section 523.040, the condemnor shall have neither paid the amount of the commissioners’ award to the persons named in the petition . ., then interest on the amount of any subsequent verdict for said named persons, or if there be no such verdict, then on the amount of the award, at the rate of six percent per annum from the date of filing the report shall be added to said verdict or award and paid to said named person or to the clerk for them. If, within thirty days after the filing of any such commissioners’ report the condemnor shall have paid the amount of any commissioners’ award to the persons named in the petition as owning or claiming any property or rights or to the clerk of the court for them and the amount of such award shall be superseded by a subsequent verdict or amount larger than the award paid, then interest on the amount by which such verdict exceeds the award, at the rate of six percent per annum from the date of filing the report, shall be added to the amount of the verdict . . .. If, within thirty days after the filing of any such commissioners’ report, the condemnor shall have neither paid the amount of the award to said persons or to the clerk for them nor filed its written election to abandon the appropriation, but shall thereafter timely file such written election to abandon, then the court may, upon motion filed by said persons within ten days after the filing of said election, assess against the condemnor six percent interest on the amount of the award from the date of filing of the commissioners’ report to the date of the filing of such election, enter judgment thereon and enforce payment thereof by execution or other appropriate proceeding.”

      . In Hamlin, the court of appeals noted that the condemnee is entitled to prejudgment interest to the extent the jury verdict exceeds the amount of the commissioners’ award, such interest being “an element of just compensation required by the constitution.” 288 S.W.2d at 18. Mo.Const. Art. I, § 26.
      In Galloway, the court indicated that “just compensation” requires that the condemnee be allowed interest from the date of the filing of the commissioners’ report to the date such award is paid into court and that the only procedural method under Missouri law, for the award of such interest would be to allow the court, upon proper and timely motion of the condemnee, “to amend the judgment by adding to the amount of the award of the jury such interest or to amend the verdict of the jury so as to allow interest on the amount so found at the legal rate. ...” 292 S.W.2d at 912.
      “ ‘ * * * Interest as so allowed by the weight of authority is not interest eo nomine but a substitute or means of measuring the value of the deprivation of the use of the property . . . State ex rel. State Highway Commission v. Galloway, 292 S.W.2d at 910, affd 300 S.W.2d 480 (Mo.1957).

      . In St. Louis Housing Authority v. Magafas, 324 S.W.2d 697 (Mo.1959), the Supreme Court approved the award of interest where the claim for interest was presented to the trial court and the case was tried to the court. There was no procedural difficulty in that case, since the claim for interest was presented to the trial court which tried the case, thus obviating the question of an addition of interest.
      Following Magafas, the Supreme Court also approved the imposition of interest from the date of taking to the date of jury verdict when the issue of interest was “ ‘computed by the jury and included in its verdict’ . . . .” City of St. Louis v. Vasquez, 341 S.W.2d 839, 848 (Mo.1961).

        .State ex rel. Highway Commission v. Commonwealth Drive-In Theatres, Inc., 413 S.W.2d 526, 528 (Mo.App.1967); State ex rel. Highway Commission v. Kendrick, 383 S.W.2d 740, 747 (Mo.1964); State ex rel. Highway Commission v. Ellis, 382 S.W.2d 225, 231 (Mo.App.1964).

      . Jurisdiction has various meanings. It may mean power over the subject matter or the person. But a close and realistic examination of the prohibition decisions indicates that its meaning has been expanded to prohibit a tribunal from doing an act which is beyond its authority and which it ought not to do.
      “Simply stated, it is possible for a court to commit an act which may be prohibited by a superior court even though the lower court has jurisdiction over the subject matter and the parties.” Note, the Writ of Prohibition in Missouri, 1972 Wash.U.L.Q. 511, 522.

      . See also State ex rel. Berbiglia, Inc. v. Randall, 423 S.W.2d 765, 770 (Mo.banc 1968); State ex rel. Sisters of St. Mary v. Campbell, supra, 511 S.W.2d at 148; State ex rel. T. J. H. v. Bills, supra, 495 S.W.2d at 725-726; State ex rel. Vogel v. Campbell, supra, 505 S.W.2d at 58; State ex rel. Templeton v. Seehorn, 208 S.W.2d 789, 794 (Mo.App.1947); State ex rel. Kubatzky v. Holt, 483 S.W.2d 799, 803 (Mo.App.1972); Banker’s Life Ass’n v. Shelton, 84 Mo.App. 634, 639 (1900); State ex rel. St. Louis, K. & N.W. Ry. Co. v. Withrow, 133 Mo. 500, 36 S.W. 43, 49 (1896); State ex rel. Wilson v. Burney, 193 Mo.App. 326, 186 S.W. 23, 28 (1916).
      See State ex rel. Terminal R. Ass’n of St. Louis v. Tracy, 237 Mo. 109, 140 S.W. 888, 890-891 (1911), for a statement of history and general principles.
      See the interesting case of Thomas v. Mead, 36 Mo. 232 (1865) — the first case in prohibition in Missouri. There the clerk of the Supreme Court tried to keep the Supreme Court, appointed by the Governor after a constitutional amendment, from using its own records. Prohibition was held to lie against the trial court of St. Louis County which issued an injunction against certain persons from obtaining the Supreme Court records.

      . By so holding, I would not preclude the trial court from awarding interest from the date of the judgment, March 27, 1972, to the date of the disbursement of the amount of the judgment. Relator admits that “it would owe additional interest from and after March 27, 1974 until the date of the disbursement of the sum of $156,800.00 on or about April 25, 1974 . . . .”


source: Caselaw Access Project

author: McMILLIAN, Judge.

license: Public Domain

text:
    Fred R. FARIES, Employee-Respondent, v. ACF INDUSTRIES, INCORPORATED, a corporation, Employer-Appellant.
    No. 36644.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 9, 1975.

      Gentry, Bryant & Hereford, Herbert E. Bryant, Stephen M. Hereford, St. Louis, for employer-appellant.
    Mogab, Hughes & Green, Inc., Charles A. Mogab, Richard L. Hughes, St. Louis, for employee-respondent.
   McMILLIAN, Judge.

Employer, ACF Industries, Inc., (ACF, Inc.) appeals from a judgment of the Circuit Court of the City of St. Louis, affirming the decision and award of the Industrial Commission of Missouri, Chapter 287, RSMo 1969.

On 4 June 1971, respondent, Fred R. Far-ies, sustained an injury by accident, arising out of and in the course of his employment with ACF, Inc. On 6 September 1972, Far-ies filed a claim for compensation with the Division of Workmen’s Compensation, however, the referee denied compensation on the ground that recovery was barred by the one-year statute of limitation, § 287.430.

On appeal to the Commission, the decision of the referee was reversed. The Commission found, one member dissenting, that the statute of limitation had been tolled by a 17 August 1972 visit to the company doctor and that Faries suffered a 20% permanent partial disability of the left foot at the ankle. Based upon its findings, the Commission awarded Faries $1968.50 less a credit of $54.12 for compensation previously paid.

From the transcript these facts are evident: On 4 June 1971, Faries, while working on an upside down flat car and attempting to swing a hoist, stepped on a metal pin about 2½" in diameter. The pin rolled causing Faries to fall and injure his left foot and left leg. He was taken to Lutheran Hospital for x-rays and then returned to the office of Dr. Robert E. Thomasson, the company physician. Dr. Thomasson wrapped the ankle, gave Faries pain medication and crutches, and advised him to use warm soaks. Faries returned to Dr. Thom-asson’s office on 8 June and 10 June 1971. On 10 June 1971, the doctor advised Faries to return to work on 14 June 1971. The doctor’s record indicates that Faries also came for treatment on 15 June and 25 June 1971, but on each of these dates after waiting for a period of time left the office without seeing him.

Then on 17 August 1972, Faries returned to Dr. Thomasson’s office. The employee testified that during this visit he was advised by Dr. Thomasson to again use warm soaks for his ankle. Dr. Thomasson unequivocally maintained in his testimony that he neither prescribed medication for Faries on 17 August 1972 nor advised Far-ies to continue warm soaks. On cross-examination, the doctor admitted, however, that warm soaks would not be an unreasonable treatment if a problem with the ankle persisted. The clinic record entry for this 17 August 1972 visit reads simply:

“There is normal contour and shape of left ankle. Motion of the ankle joint is normal and the employee says there is no pain. There is no partial permanent disability of the left ankle.”

Faries maintains that he still has trouble with this ankle. He testified that he cannot stand on his toes on his left foot, that he has to wear support socks and has trouble wearing low cut shoes, and that if he is on his feet for any length of time or does any lifting, the ankle swells.

In February, 1973, at the request of the employee’s attorney, Dr. Jerome F. Levy examined Faries. Dr. Levy found that there was a normal range of motion of the ankle but there was a weakness of 50% in dorsiflexion and plantaflexion of the left ankle. The doctor also testified that an injury such as Faries experienced could exhibit varying levels of tenderness, swelling and weakness from day to day. Dr. Levy rated the disability to Faries’ ankle as a 20% permanent partial disability.

ACF, Inc., raises three contentions: (1) the overwhelming weight of the evidence on the record demonstrates, as a matter of fact, that the employee-respondent was not advised to soak his ankle on the 17 August 1972 office visit; (2) even if such advice was given it did not constitute medical treatment so as to toll the statute of limitation; and (3) even if the referee’s finding as to the statute of limitation was erroneous, the Commission was without jurisdiction to award disability compensation when the referee had denied all compensation.

We are unable to adopt the ACF, Inc.’s argument at any stage of its logical progression. Consequently, we affirm the judgment of the Circuit Court.

Section 287.430 provides, in part, that:

“No proceedings for compensation under this chapter shall be maintained unless a claim therefor be filed with the commission within one year after the injury or death, or in case payments have been made on account of the injury or death, within one year from the date of the last payment. . . . ”

In the present case, the injury occurred on 4 June 1971 — the claim was not filed until 6 September 1972. Faries’ contention, however, is that the 17 August 1972 examination and the advice to continue warm soaks constituted “medical treatment” amounting to “payments” under the statute. It is well-established in Missouri that “medical treatments” are payments under this section and have the effect of tolling the statute of limitation. Morgan v. Krey Packing Co., 403 S.W.2d 668 (Mo.App.1966) and Reichert v. Jerry Reece, Inc., 504 S.W.2d 182, 189 (Mo.App.1973). The treatment need not be within one year of the injury because the rendering of the treatment is deemed to revive the remedy, Welborn v. Southern Equipment Co., 395 S.W.2d 119, 124 (Mo.Banc 1965); Silas v. ACF, Industries, Inc., 440 S.W.2d 189, 193 (Mo.App.1969) and Dupree v. Yorkshire Cleaners, Inc., 454 S.W.2d 607, 608 (Mo.App.1970). Therefore, if the employee was advised on 17 August 1972 to take warm soaks for the ankle injury and if such advice constitutes “medical treatment,” the employee’s action is not barred.

ACF, Inc., first mounts a challenge to the factual determination of the Commission that Faries was advised on 17 August 1972 to take warm soaks. As to determinations of fact, our appellate review is fairly limited, see § 287.490. Factual determinations are only to be reversed if clearly contrary to the overwhelming weight of the evidence, Deatherage v. Churchill Truck Lines, Inc., 469 S.W.2d 660, 661 (Mo.App.1971). The reviewing court is to apply all favorable inferences in support of the award of the Commission, Saale v. Alton Brick Co., 508 S.W.2d 243 (Mo.App.1974). Applying this standard of review to the present case, we are unable to hold that the factual determination is unsupportable. The weight of the evidence suggested by the ACF, Inc., as militating against the Commission’s factual finding consists of the denial by Dr. Thomasson that he gave such advice, the clinic record’s lack of an entry reflecting such advice, and some claimed equivocation in Faries’ description of the August visit. The evidence to support the finding of the Commission consists of the testimony of Faries that such advice was given, the admission by Dr. Thomasson that the offering of such advice would not be unreasonable for such a medical problem, and the results of an examination by Dr. Levy. It seems that an inference might be drawn from Dr. Levy’s assessment of Far-ies’ ankle injury that the injury could well have been bothersome enough to prompt a visit to the doctor in August of 1972.

In our opinion, the factual decision here basically involves an assessment of the credibility of the witnesses. It is part of the Commission’s duty to make such credibility judgments, Brown v. Griesedieck Western Brewing Company of Missouri, 250 S.W.2d 803, 809 (Mo.App.1952); McAdams v. Seven-Up Bottling Works, 429 S.W.2d 284 (Mo.App.1968) and Deatherage v. Churchill Truck Lines, Inc., supra, 469 S.W.2d at 661. In the present case, there was no conflicting assessment of credibility by a referee. The referee’s decision, which is three lines long, simply found the employee’s claim barred by the statute of limitation. Such a finding is ambiguous since it could suggest that the advice to soak the ankle was not, in fact, given or that the advice even if given did not amount to medical treatment so as to toll the statute. Additionally, we note that a credibility determination by the referee is not binding on the Commission, Diebold v. Great Atlantic and Pacific Tea Co., 241 S.W.2d 31, 34 (Mo.App.1951) and Douglas v. St. Joseph Lead Co., 231 S.W.2d 258, 261 (Mo.App.1950).

Once again, we recognize that a reviewing court is not at liberty to substitute its own judgment for that of the Commission and may set aside an award only in the instance where there is not substantial competent evidence to support the award, Webb v. Norbert Markway Construction Co., 522 S.W.2d 611, 614 (Mo.App.1975); Smith v. Plaster, 518 S.W.2d 692, 696 (Mo.App.1975) and Freeman v. Callow, 525 S.W.2d 371, 372 (Mo.App.1975). In the present case, there is substantial competent evidence to support the award. We, therefore, adopt the factual finding of the Commission that the employee was advised in August, 1972, to take warm soaks for his ankle.

ACF, Inc., then argues that even if such advice was given it did not constitute “medical treatment” so as to toll the statute of limitation. Initially the scope of appellate review of this finding of the Commission might be somewhat different than that previously discussed in connection with the purely factual determination that the advice was given. Under Missouri law:

“[A]wards of the Commission ‘which are clearly the interpretation or application of the law, as distinguished from a determination of facts, are not binding upon us and fall within our province of review and correction. . . . ’”

Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 297 (Mo.1965). See also Williams v. S. N. Long Warehouse Co., 426 S.W.2d 725, 733 (Mo.App.1968) and Williams v. Anderson Air Activities, 319 S.W.2d 61, 65 (Mo.1965). The line to be drawn however between questions of fact and questions of law is at best a hazy one. Gordon v. Puritan Chemical Co., 406 S.W.2d 822, 826 (Mo.App.1966). The determination of whether particular advice amounts to “medical treatment” tolling the statute of limitation seems to be a good example of the overlap.

Before examining that point in this case, we explain what we think is an appropriate approach in determining whether particular advice equals “medical treatment.” It is our understanding that actions under the Workmen’s Compensation statutes are authorized so as to provide the injured employee with a mechanism to recover compensation from an employer who is no longer furnishing such care and compensation voluntarily. The statute of limitation in Workmen’s Compensation actions is intended to prevent claims from lying unfiled indefinitely and becoming stale, Dupree v. Yorkshire Cleaners, Inc., supra, 454 S.W.2d at 610-11 and Morgan v. Krey Packing Company, supra, 403 S.W.2d at 671. If we look to the purpose of the statute of limitation, it seems reasonable that the determination as to whether particular advice to the employee should be labelled as “medical treatments”, should be made on the basis of whether such advice reasonably appears to reflect the employer’s continued provision of aid designed to cure or relieve the effects of the injury. If the advice does not reflect continued provision of care by the employer, the employee would be reasonably alerted to the fact that an action under the Workmen’s Compensation Act should be filed. If the advice appears to be part of the continued care by the employer, the employee would not be alerted to the necessity of filing suit.

ACF, Inc., contends that the August 1972 visit to Dr. Thomasson cannot be termed “medical treatment” because the visit was intended solely for the purpose of “finalizing” the case; that is, preparing a written report for disposition of The employee’s claim. This contention of the employer raises questions of law and fact. We recognize, as a matter of law, that an examination conducted merely to allow the employer to determine questions of causality or liability generally do not constitute “medical treatment” so as to toll the statute, Bryant v. Montgomery Ward & Co., 416 S.W.2d 195, 200 (Mo.App.1967) and Myers v. Cap Sheaf Bread Co., 354 Mo. 943, 950, 192 S.W.2d 503, 506 (Mo.Banc 1945) (concurring opinion by Hyde, J.). Under our suggested approach to defining “medical treatment” under the statute, this seems reasonable. If the employee is clearly informed, or if the circumstances clearly indicate, that the examination is solely for these purposes, the employee should be reasonably alerted to the fact that the employer is no longer providing care. Involved here, however, is the underlying fact question of whether the examination was conducted for that purpose. It seems appropriate that this underlying fact question should be reviewed according to the previously discussed “weight of the evidence” standard. When evaluated by that standard, the Commission’s implicit finding that the August 1972 visit was not solely for that purpose is not insupportable. Dr. Thomasson testified that the examination was solely for that purpose. In contradiction to that testimony, there are two important items. First, the employer has suggested that there is some uncertainty as to why Faries came to Dr. Thomasson in August of 1972. There was no suggestion that it was pursuant to an appointment which would seem likely if the visit was intended by the employer for the finalizing of the case. Secondly, as suggested by the employee, it is difficult to imagine a reason for the employer to require an examination to determine disability and liability more than a year after the actual injury. By August, 1972, absent any conduct of the employer which would toll the statute, the employee’s Workmen’s Compensation claim would already have been barred by the statute of limitation.

In the present case, the employer’s argument about the limited purpose of the August 1972 visit may be irrelevant. It is the advice to take warm soaks which was given during that visit that is asserted to equal “medical treatment” so as to toll the statute. Once again, the analysis of this portion of the employer’s argument should be made in light of the purposes of the statute of limitation and statutorily created conditions for tolling the statute.

The employer argues that the advice to take warm soaks cannot constitute “medical treatment” under the statute because such advice is mere layman’s advice. The argument is based on language found in Lutman v. American Shoe Machine Co., 151 S.W.2d 701 (Mo.App.1941). In Lutman, the employee was afflicted with a lung disease, pneumoconiosis, alleged to be a result of breathing dust generated in the employee’s job. Though not expressly identified by the Lutman court as a ground for its decision, there was some expert testimony offered in the case that the lung condition was incurable, 151 S.W.2d at 705. The advice given, which was alleged to equal “medical treatment” tolling the statute, consisted of a recommendation to the employee to wear a mask to prevent further inhalation of the dust. In holding this advice insufficient to toll the statute, the Lutman court observed:

“As to Dr. Reuter’s advice that respondent be taken off the work in question or be given a mask to wear ‘if the dust was aggravating him’, we do not believe it can reasonably be said that such advice was ‘medical treatment.’ It is not even suggested that medicines or drugs were advised or given by the doctor. It certainly was not ‘surgical treatment’ or ‘hospital treatment’. Furthermore, the advice was not given to ‘cure and relieve from the effects of the injury’ but was for the purpose of preventing future aggravation thereof. The grouping of the words ‘medical, surgical, and hospital treatment’ by the Legislature shows plainly what the lawmakers had in mind, and clearly does not include mere diagnosis, nor can it be said to include advice that could be given by a layman. . ” (Emphasis added.) (151 S.W.2d at 709)

We do not think the language of Lutman impels a conclusion in favor of the employer. The advice to wear a mask at work would not reasonably be understood to constitute a continued course of care designed to cure and relieve from the effects of the injury. The advice in Lutman would seem directed simply to the prevention of further aggravation of the lung condition. More importantly, in the present case, the focus of the employer’s argument is on the language appearing at the end of the quotation. Our reading of the opinion does not suggest that the phrase “advice that could be given by a layman” enunciates an acid test for defining “medical treatment” under the statute. Rather, it seems to constitute only one factor in assessing whether the advice in a particular case would reasonably appear to be part of a continued course of care designed to cure or relieve from the effects of an injury. In Morgan v. Krey Packing Co., supra, the employer’s furnishing of an Ace bandage for the employee’s knee injury was viewed as constituting medical service. It seems that wearing an Ace bandage for a knee injury could be characterized as “advice that could be given by a layman.” Is advice to rest in bed, take two aspirins and drink plenty of fluids layman’s advice?

We hold, under the circumstances of this case, that advice to take warm soaks for Faries’ ankle injury was “medical treatment” so as to toll the statute of limitation. While it is true such advice was not particularly technical; on the other hand, it was the initially prescribed curative technique and was recognized by Dr. Thomasson as a reasonable remedy for persistent ankle trouble. Consequently, the advice to take warm soaks would appear to be part of a continued course of care.

The final contention of the employer is that the Commission was without jurisdiction to award compensation to the employee when the referee had denied compensation. The employer asserts that the Commission may only make an award “ending, diminishing or increasing the compensation previously awarded.” The language is taken from § 287.470, RSMo 1969. That statutory section relates, however, only to the powers of the Commission to modify the amount of awards in light of changes in conditions of the employee, Vandaveer v. Reinhart & Donovan Const. Co., 370 S.W.2d 156, 158 (Mo.App.1963); Winschel v. Stix, Baer & Fuller Dry Goods Co., 77 S.W.2d 488 (Mo.App.1935) and State ex rel. Sei v. Haid, 332 Mo. 1061, 61 S.W.2d 950 (1933). Another section of the statute, § 287.480, is the general statutory authorization for the Commission’s review of the referee’s determination. Under this latter section, Missouri courts have recognized the validity of a Commission award of compensation where the referee had previously denied all compensation, Govreau v. Farmington Transfer Co., 473 S.W.2d 750, 751, 756 (Mo.App.1971) and Peet v. Garner Oil Co., 492 S.W.2d 103, 105 (Mo.App.1973). We hold that the Commission is not jurisdictionally disabled from awarding compensation by the referee’s denial of compensation. The award in the present case of compensation for 20% permanent partial disability is supported by the record.

The judgment of the trial court affirming the award of the Industrial Commission is affirmed.

SIMEONE, P. J., and GUNN, J., concur.

      . All statutory references are to RSMo 1969 unless otherwise indicated.

      . 29A Mo. Digest, Workmen’s Compensation <£=1939.2.

      . 29A Mo. Digest, Workmen’s Compensation <£=1939.7.

      . See also e. g., Webb v. Rossville Home and Auto Supply Co., 483 S.W.2d 579 (Tenn.1972); Schwarz v. Federal Shipbuilding and Dry Dock Co., 16 N.J. 243, 108 A.2d 417, 420 (N.J.1954); Thompson v. Swenson Const. Co., 158 Kan. 49, 145 P.2d 166, 169 (Kan.1944); Schneider, Workmen’s Compensation Text, Supp. Vol. III (1959) at p. 438.

      . It has been suggested that even an examination for this purpose could be viewed as tolling the statute if the employee was not informed that this examination was any different in purpose than several prior medical examinations which the employee had received in the course of treatment of an injury, Sampson v. Thornton, 8 N.J. 415, 86 A.2d 117 (1952).

      . The two jurisdictional statutes involved are:
      “287.470 Commission may review and change award
      Upon its own motion or upon the application of any party in interest on the ground of a change in condition, the commission may at any time upon a rehearing after due notice to the parties interested review any award and on such review may make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this chapter, and shall immediately send to the parties and the employer’s insurer a copy of the award. No such review shall affect such award as regards any moneys paid.”
      “287.480 Application for review — commission shall act
      If an application for review is made to the commission within twenty days from the date of the award, the full commission, if the first hearing was not held before the full commission, shall review the evidence, or, if considered advisable, as soon as practicable hear the parties at issue, their representatives and witnesses and shall make an award and fíle it in like manner as specified in section 287.470. Any notice of appeal, application or other paper required under this law to be filed with the division or the commission shall, when mailed to and received by the division or the commission, be deemed to be filed as of the date endorsed by the United States Post Office on the envelope or container in which such paper is received. In instances where the last day for the filing of any such paper falls on a Sunday or legal holiday, the filing shall be deemed timely if accomplished on the next day subsequent which is neither a Sunday or a legal holiday.” (Emphasis added.)
      The underscored portion of § 287.480 is suggested by the employer as a provision limiting the power of the Industrial Commission in reviewing decisions of a referee. It seems more likely that the language of § 287.480 refers only to the procedural aspects of a review by the Commission; that is, sending a copy of the award to the parties and the employer’s insurer.


author: PER CURIAM:

text:
    COLLECTOR OF REVENUE OF the CITY OF ST. LOUIS, Missouri, Plaintiff-Respondent, v. PARCELS OF LAND ENCUMBERED WITH DELINQUENT TAX LIENS et al., Defendants-Appellants.
    No. 36632.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 9, 1975.
    Defendants-appellants, pro se.
    James E. Crowe, St. Louis, for plaintiff - respondent.
   PER CURIAM:

Action by Collector of Revenue of City of St. Louis to foreclose certain designated parcels of real property in that city for delinquent taxes. Following entry of judgment for the collector of revenue in Land Tax Suit No. 17 Harriett M. Londoff, as owner of the parcels involved, has appealed in propria persona.

Respondent’s amended motion to dismiss the appeal is sustained

(1) for failure to order a transcript within 30 days after the filing of the notice of appeal, in violation of Rule 81.19;

(2) for failure to file a jurisdictional statement in conformance with the requirements of Rule 81.08(b);

(3) for failure to file a brief in conformance with the requirements of Rule 84.04(b) relating to the jurisdictional statement; Rule 84.04(c) relating to the statement of facts; Rule 84.04(d) relating to points relied on, and Rule 84.04(e) relating to argument.

Appellant, who is not trained in the law, has the right to appeal her own case, but she is bound by the same rules of procedure as those admitted to the practice of law, and is entitled to no indulgence she would not have received if represented by counsel. Hampton v. Gilmore, 511 S.W.2d 442 (Mo.App.1974). The rules of appellate practice are plain and simple. They must be obeyed by lawyer and lay person alike. When the basic rules of appellate practice are violated and an appellate brief is filed so woefully deficient that it fails to intelligently preserve or present for review any justiciable issue or point, as here, it should be dismissed. See Cole v. Cole, 516 S.W.2d 518, 521[6] (Mo.App.1974), and particularly the concurring opinion of Simeone, J.

No good cause having been shown for not dismissing the appeal, and the interests of justice not otherwise requiring, the appeal is dismissed, pursuant to the authority and direction of Rule 84.08.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Asa MINOR, Defendant-Appellant.
    No. 35440.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 9, 1975.

      Forriss D. Elliott, Richard A. Fredman, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Daniel J. Murphy, Asst. Circuit Atty., Charles B. Black-mar, Sp. Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

By a jury verdict, defendant Asa Minor was found guilty of tampering with a motor vehicle, § 560.175, RSMo. 1969, and was sentenced by the court to three years in the custody of the Missouri Department of Corrections.

Defendant’s first point on appeal is that the verdict was against the weight of the evidence. This contention is without merit. An appellate court does not weigh the evidence. This is a matter that must be addressed to the trial court who hears the witnesses and is in a position to judge their credibility. State v. Talbert, 454 S.W.2d 1, 4[6] (Mo.1970); State v. Tschirner, 504 S.W.2d 302, 308[17, 18] (Mo.App.1973).

Defendant next contends error was committed by the court in overruling defendant’s motion for a judgment of acquittal. Since this attacks the sufficiency of the evidence to support defendant’s conviction, we briefly review the evidence which was favorable to that conviction.

Two police officers observed defendant loading an automobile seat into a panel truck parked in an alley at 5976 Lalite Avenue in the City of St. Louis. One officer approached the defendant and when he was approximately thirty feet away, defendant looked up and ran. The officer followed in pursuit and caught defendant in the front yard of the premises after a short chase. He only lost sight of the defendant for a second or two when defendant went around the garage. From there, the officer was right behind him all the way to the time he tackled him on the front lawn. Defendant was placed under arrest and brought back to the alley. The officer and his companion officer then obtained permission from the owner of the premises to search the garage and inside found a Ford automobile which had been reported stolen by the owner, Brenda Dunn, three days before. The automobile was being stripped, with parts lying about the garage and a seat and several other parts in the panel truck. Without objection, the officer testified that the parts in the truck were identified by Brenda Dunn as parts from her vehicle. Clothing worn by the defendant that night, including some gloves, was identified and introduced into the evidence.

It is true, as defendant contends, that mere presence at the scene of the crime and flight from the scene are not sufficient in themselves as a basis for a judgment of conviction. State v. Castaldi, 386 S.W.2d 392, 395 (Mo.1965). But presence at the scene of the crime, taken together with other evidence of active participation, will justify a jury in finding a defendant guilty of the crime charged. State v. Staples, 490 S.W.2d 293, 294[2] (Mo.App.1973). Here, defendant was seen placing a seat identified as being from the stolen car in a van truck next to the garage where the stolen car was being stripped. When defendant saw the approaching officer, he fled and was quickly apprehended. A car seat was missing from the automobile in the garage. These evidentiary facts prove an affirmative participation by defendant in the crime. The contention that the court erred in overruling the motion for a judgment of acquittal is not sustained by the record.

Defendant’s third contention of error is directed to the failure of the court to give an instruction on circumstantial evidence. When we review the record to determine what occurred at the time the court conferred with the attorneys concerning the instructions to be given at the close of the evidence, we find that the court advised counsel that he intended to instruct the jury with certain instructions which did not include one on circumstantial evidence. The court then asked the state whether there were any other instructions which they wished to have the court give. The state requested an instruction with regard to flight of the defendant from the scene of the crime. This was refused by the court. The court then asked counsel for the defendant whether he had any other instructions which he wished the court to give. Counsel’s answer was negative. The failure of a trial court to give an instruction on circumstantial evidence is not error where there is no request for such an instruction by the defendant. State v. Davis, 491 S.W.2d 549, 552[6] (Mo.1973). Since no request was made, no error could be committed in failing to give the instruction.

The judgment of conviction and sentence is affirmed.

DOWD and RENDLEN, JJ., concur.


author: COOPER, Justice.

text:
    EMPLOYERS-COMMERCIAL UNION COMPANIES, Appellant, v. Benjamin TAYLOR, Jr., Appellee.
    Supreme Court of Tennessee.
    Dec. 8, 1975.
    Eugene Charles Gaerig, Holt, Batchelor, Taylor & Spicer, Memphis, for appellant.
    Walter Buford, Buford & Deal, Memphis, for appellee.
   OPINION

COOPER, Justice.

This is a workmen’s compensation action. The employee, Benjamin Taylor, Jr., was awarded the statutory benefits provided for sixty percent permanent partial disability of the body as a whole. Employers-Commercial Union Companies, the workmen’s compensation insurance carrier for the employer, Liberty Cash Warehouse, insists there is no material evidence to support the judgment of the trial court and, alternatively, that the trial court erred in failing to credit a prior workmen’s compensation award against the present award.

Benjamin Taylor, Jr., was first employed by Liberty Cash Warehouse in January of 1962. His work at that time consisted primarily of loading and unloading cases of food. In 1967 Taylor suffered an on-the-job injury to his back, underwent disc surgery, and received workmen’s compensation benefits provided for fifty percent permanent partial disability of the body as a whole.

In October of 1969, Taylor was re-employed by Liberty Cash Warehouse to work in the warehouse at heavy manual labor and, subsequently,, as a porter “pulling cases of food” in working up orders. Taylor performed the manual labor required by his job without limitation and without incident until February 25, 1971, when he injured his back while lifting a bundle of “twin cash and carry bags” weighing some fifty to sixty pounds. Taylor testified that he felt a sharp pain in his back and fell to his knees, crying out in pain. Taylor attempted to report his injury to his foreman, Charlie Pache, but was informed that Pache was in a meeting. According to Taylor, he then reported his injury to Arthur Cortesi, a supervisor, and left Liberty Cash Warehouse with his father whom he had telephoned to take him to the hospital.

Two of Taylor’s co-workers testified they heard Taylor cry out and saw him on the floor, and that Taylor left work and went to the hospital with his father. One employee, Curtis Kirkwood, testified he told someone to inform a supervisor that a man had been injured and that thereafter Arthur Cortesi came to where Taylor was awaiting his father’s arrival.

Mrs. Minnie Taylor, custodian of records at the John Gaston Hospital in Memphis, testified the hospital emergency room record shows Taylor arrived at the hospital at approximately 9:40 a. m. on the morning of February 25, 1971, and that he was complaining of a back injury.

In our opinion this evidence supports the trial judge’s finding that Taylor sustained an on-the-job injury on February 25, 1971, and that he complied with the statutory requirement of notice by reporting his injury to his supervisor. Gluck Bros., Inc. v. Breeden, 215 Tenn. 587, 387 S.W.2d 825 (1965).

During the year following his injury, Taylor returned on several occasions to the neuro surgery clinic at John Gaston Hospital for treatment of his back injury. In February, 1972, he was referred by the Division of Vocational Rehabilitation to Dr. John P. Howser for examination and treatment of his injury, if called for. Dr. How-ser testified that he treated Taylor’s back injury conservatively until April 23, 1973, when he surgically removed the entire disc at the L-5 interspace. According to Dr. Howser, Taylor has a twenty percent permanent “medical impairment” from the February 25, 1971, injury over and above any disability he may have had from the prior disc surgery.

In determining the extent of a workman’s disability from a job related injury, once permanent anatomical disability has been established by competent medical testimony, the trial judge must take into account other factors that have a bearing on the workman’s ability to earn wages on the open market, such as skills, education, training, duration of disability, and job opportunities for the disabled. See Federated Mutual Implement and Hardware Insurance Co. v. Cameron, 220 Tenn. 636, 422 S.W.2d 427 (1967).

Taylor, now thirty-five years of age, has a ninth grade education and has no marketable skill. His work experience has been one of manual labor. The medical or anatomical disability resulting from the on-the-job back injury severely limits Taylor’s access to the job market as a manual laborer. On considering all factors, the trial judge converted the twenty percent anatomical disability established by medical testimony to an industrial rating of sixty percent permanent disability to the body as a whole from the on-the-job injury of February 25, 1971. In our opinion, there is material evidence in the record to support that finding.

Appellant argues that any disability which Taylor may have suffered for the 1971 injury cannot be separated from the disability from the 1967 injury and that it was due credit for benefits paid under the prior award citing T.C.A. 50-1007(c). T.C.A. 50-1007(c) provides in part as follows:

“If an employee has previously sustained an injury compensable under this section for which a court of competent jurisdiction has awarded benefits based on percentage of disability to the body as a whole and suffers a subsequent injury not enumerated above, the injured employee shall be paid compensation for the period of temporary total disability and only for the degree of permanent disability that results from said subsequent injury.” (Emphasis supplied.)

Appellant’s argument ignores the evidence that after his first injury, Taylor’s physical condition so improved that he was able to do manual labor without limitation and to the complete satisfaction of his employer. His present inability to work, according to Dr. Howser, was due to the on-the-job injury of February 25, 1971. It was this disability which was the basis of the trial court’s award of benefits.

In Industrial Carving Company v. Hurst, 223 Tenn. 469, 447 S.W.2d 871 (1969), this court approved an award of permanent partial disability benefits to an employee who had previously been adjudged permanently and totally disabled as the result of a back injury and had been paid full benefits. The employee had rehabilitated himself and had returned to work, and the court pointed out that:

“All things considered, the employee did have an earning power at the time of his subsequent injury, irrespective of the previous adjudication of total permanent disability. Industry saw fit to utilize this recouped earning capacity; therefore, it should compensate him for the loss he has suffered.

See also McKamey v. Pee Wee Mining Co., 498 S.W.2d 94 (Tenn.1973), wherein this court approved an award of total and permanent disability benefits to a workman without credit to the employer for benefits the employee had received under an earlier award of permanent partial disability benefits.

Judgment affirmed. Costs are adjudged against Employers-Commercial Union Companies and its surety.

FONES, C. J., HENRY, HARBISON, JJ., and NEARN, Special Judge, concur.


author: HENRY, Justice.

text:
    Roy BRIGGS, Petitioner, v. CITY OF UNION CITY, Respondent.
    Supreme Court of Tennessee.
    Dec. 15, 1975.

      Bruce Conley, Maness, Conley & Hayes, Union City, for petitioner.
    Paul G. Hudgins, City Atty., Sam C. Nailling, Sp. Counsel, Union City, for respondent.
   HENRY, Justice.

We granted certiorari to answer two questions, viz.: (1) whether a defendant convicted of the violation of a city ordinance is entitled to a jury trial upon appeal to the Circuit Court and (2) whether the Circuit Court, in a driving-while-under-the-influence case appealed from a municipal court, may suspend the individual’s driver’s license.

He is; it may not.

In Metropolitan Government v. Allen, 529 S.W.2d 699 (Tenn.1975), we reviewed the major former decisions of this Court and held that cases involving violations of city ordinances are not criminal prosecutions; that they are civil in nature having as their object the vindication of domestic regulations; that they are in the nature of actions for debt; and that on appeal to the Circuit Court they are “triable de novo in the circuit court in precisely the same manner and under the same procedural rules as those governing tort actions instituted in the General Sessions Courts, to include the right to a jury trial.” We reaf-firm this holding. We do not hold that this should be the law; only that it is, under our existing constitution and statutes.

We concur in the conclusion reached by the Court of Appeals that the trial judge erred in ordering a suspension of petitioner’s state driver’s license on the basis of a provision contained in the city ordinance. The City elected to proceed in its own courts and under its own ordinance as opposed to charging petitioner under the general law of the state and in the General Sessions Court. It is fundamental that a Tennessee municipality has no authority to revoke or suspend a driver’s license issued by the State.

Section 59-1028 T.C.A. provides that Tennessee municipalities may adopt by reference §§ 59-801—59-881 (Rules of the Road) and §§ 59-1001—59-1030 (accidents, arrests, crimes and penalties). It is significant that the power to adopt does not extend to § 59-1031 proscribing operation of vehicles by persons under the influence of intoxicants or narcotic drugs.

We hold that a Tennessee municipality is without power to revoke a state-issued driver’s license. This seems to be in accord with the general rule. See Bellingham v. Schampera, 57 Wash.2d 106, 356 P.2d 292, 92 A.L.R.2d 192. See also 51 Am.Jur.2d, Licenses and Permits, § 143; Annotation 92 A.L.R.2d 204.

The appellate jurisdiction of the circuit court in a driving-while-under-the-influence case originating in a municipal court is limited to the penalty or forfeiture legally imposed by city ordinance and the circuit court may impose no greater sanctions. The simple fact is that municipal courts in Tennessee are not so structured as to deal effectively with cases of this character, and municipalities would be well advised to present these charges by state’s warrants and pursue them in general sessions courts.

Remanded.

PONES, C. J., COOPER and HARBI-SON, JJ., and DYER, Special Judge, concur.


author: GODDARD, Judge.

text:
    CHAMBLISS, BAHNER & CRAWFORD, Appellant, v. William F. LUTHER et al., Appellees.
    Court of Appeals of Tennessee, Eastern Section.
    July 23, 1975.
    Certiorari Denied by Supreme Court Dec. 8, 1975.
    Spears, Moore, Redman & Williams, Chattanooga, for appellant.
    Shattuck & Payne, Chattanooga, for ap-pellees.
   OPINION

GODDARD, Judge.

This is a suit by a firm of attorneys for collection of a fee for a previous lawsuit. Plaintiff-Appellant Chambliss, Bahner, and Crawford is a Chattanooga law firm whose senior partner, Jac Chambliss, represented Defendants-Appellees in a lawsuit against the Detrex Corporation in a stock securities matter.

The case arose in the following manner: Mr. Chambliss had been engaged as an attorney by Lutex, Inc. since the formation of the corporation, and owned a few shares of its stock. In 1968 Detrex, a large chemical firm, became interested in acquiring Lutex and as a result of the ensuing negotiations, Detrex absorbed the smaller concern. The absorption was accomplished by an exchange of stock, the stockholders of Lutex receiving Detrex stock in° exchange for their interest in Lutex.

In the latter part of 1969, the former principal shareholders of Lutex became concerned that the stock they had received was not as valuable as they had been led to believe. They contacted Attorney Cham-bliss, who took the case and managed to secure a compromise settlement offer of $860,000 from Detrex. The former stockholders of Lutex were not satisfied with this offer and decided to bring suit against Detrex for a violation of securities regulations.

On June 5,1971, Attorney Chambliss was retained to bring that suit upon a contingency fee basis. It was agreed that his fee would be 15 percent of the recovery above the compromise offer.

The stockholders became dissatisfied with his representation. About one year after the suit was filed, the stockholders suggested to Attorney Chambliss that another local attorney, John I. Foster, Jr., be associated in the case. Mr. Foster’s association was with the approval of Mr. Chambliss. They agreed among themselves that the division of the 15 percent contingency fee would be 70 percent to Chambliss and 80 percent to Foster. Thereafter, Attorney Foster was made lead counsel for the litigation by the stockholders. Chambliss did not approve of this move and withdrew as counsel by letter dated May 15, 1972. Commendably, however, he did not remove his name as counsel of record in the federal district court because, as he notes, he did not want “to jeopardize the Plaintiffs’ chances in [the federal court] lawsuit.”

On October 81,1972, that suit was settled for the sum of $965,150, a betterment of $105,150 over the base offer. It was agreed that Attorney Chambliss did not take part in the negotiations which led to the final settlement, although as counsel of record he approved the order of settlement and, as a stockholder, raised no objection. He received for his stock some $46,000 on an investment of $2,000.

Under the contingency fee contract, Attorney Chambliss’ 15 percent would have been $15,772.50. The Chancellor in the present action held that the contract of employment had been breached by the appointment of Attorney Foster as lead counsel, but that the damages to Attorney Chambliss should be limited to the contract price. Attorney Chambliss seeks recovery in quantum meruit, claiming that he and his brother have spent over 1,000 hours on this lawsuit over the period of two years and that he is entitled to reasonable compensation for these services apart from the contract. The testimony as to the reasonable value of his services ranged from $60,000 to $175,000.

Under Tennessee law — and it appears the rule is practically universal — a client is entitled to discharge his attorney with or without cause. The reason, which is apparent, is set out in Spofford v. Rose, quoting from the opinion rendered by the Court of Civil Appeals, 145 Tenn. 583, 608, 237 S.W. 68, 76 (1921):

“. . . Just two or three of these authorities may be adverted to. Ruling Case Law thus announces the rule:
“ ‘The authorities uniformly recognize the right of a client to terminate the relation between himself and his attorney at his election, with or without cause; the existence or nonexistence of a valid cause for the discharge of the attorney bearing only upon his right to compensation. This power cannot be affected by a previous arrangement, as, for instance, by a contract for a contingent fee.' The right of a client to change his attorney at will is based on necessity in view of both the delicate and conditional nature of the relation between them and of the evil engendered by friction or of distrust. * * An attorney is, of course, entitled to notice of his discharge, though such notice need not be formal; any act being sufficient which shows an intention to sever the relation.’ 2 R.C.L. p. 957.
“Corpus Juris thus states the law:
“ ‘The law is well settled that a client has the right to discharge his attorney at any time, either with or without cause, and this is true, although the motion for permission to substitute is restricted by persons claiming to be the assignees of the interest of such parties where there is a controversy as to such assignment. The relation between attorney and client is such that the client is justified in seeking to dissolve that relation whenever he ceases to have absolute confidence in either the integrity, the judgment, or the capacity of the attorney. Such applications are ordinarily allowed as matter of course, unless it appears that such good reasons exist that justify the court in refusing to make the order.’ 6 Corpus Juris, 670-677.
“And again:
“ ‘The relation of attorney and client is peculiar, in that the law permits the termination thereof in a manner not recognized in other contracts. Either party may dissolve the relation for cause and the client may dissolve it without cause.’ 6 Corpus Juris, 673.”

Plaintiff, while recognizing this rule, insists that because Defendants breached the employment contract it is entitled to proceed on the basis of quantum meruit and its recovery is not limited by the amount of the original contract.

Under the general law, remedies available for breach of contract are damages, specific performance, and restitution. Corbin on Contracts (1964 Ed.), § 1102.

The purpose of the remedy of damages is to put the party in as good a position as he would have been had the contract been completed, and accordingly a plaintiff may recover for the promised performance as well as consequential damages. Corbin, § 1102.

The remedy of specific performance requires the party to perform that which he had promised to do, such as convey land or transfer art objects.

Restitution is the theory relied upon by the Plaintiff, although the complaint prays for damages. The distinction between the two is significant and has not always been recognized in the reported cases. The remedy of restitution restores the injured party to the position he occupied prior to the contract being made. In some cases, it contemplates the return of the specific property and in others, a judgment for the equivalent in money for the performance rendered by the Plaintiff and received by the Defendant. One who has been wrongfully denied or otherwise prevented from fully performing, i. e., earning the agreed compensation, may regard the contract as terminated and seek judgment for the reasonable value of all the defendant received in the performance of the contract. In the case of goods sold and delivered, the theory is quantum valebat (as much as they were worth), and in that of work and services performed, quantum meruit (as much as he deserved). In such cases, the weight of authority is that the amount recoverable is not limited to the contract price. Corbin, §§ 1107, 1109.

A suit for damages is not the same as one for restitution. And under the old formal rules of pleading, the plaintiff was limited to recovery on contract and not on the basis of quantum meruit. Further, strange as it may seem, if the contract had been substantially performed, plaintiff’s only remedy was on the contract, because defendant had become a debtor through his receipt of the whole consideration for his promise. And in such cases, absent consequential damages, recovery was limited to the contract price. If, however, plaintiff had only partially performed, he could recover under the theory of quantum meruit without regard to the contract price. Corbin, § 1110.

It is extremely difficult to find cases in point in connection with the matters raised by this appeal, for the reason that in most instances where an attorney has completed only a portion of the work for which he was employed, the reasonable value of his services is less than his contract fee.

Plaintiff relies on two Tennessee cases, neither of which specifically distinguish an action for damages from one for restitution. In Brownlow v. Payne, 2 Tenn.App. 154 (1925), the attorney was employed by written contract on a contingency fee to represent client in connection with the wrongful death of her husband. The client thereafter discharged the attorney and still later made settlement of the case utilizing the services of another attorney. In that case the original attorney contended he was entitled to his entire contract fee, one-third of the ultimate settlement. The client contended that the attorney was entitled to recover only the reasonable value of his services on the basis of quantum meruit. The Court held that because the attorney was discharged without cause, he was entitled to sue either on the basis of quantum meruit or for breach of contract and, having sued for damages, was entitled to his full contract fee. It is apparent the quantum meruit theory insisted upon by defendant would have been less than the contract fee.

In the second case, Spears v. Polk, 17 Tenn.App. 556, 69 S.W.2d 239 (1933), client agreed to pay attorney’s expenses for a trip to South Carolina to investigate whether a receivership proceeding should be instituted on behalf of the client. The client agreed to pay the attorney’s expenses for this investigation and further agreed that no proceeding would be instituted unless a favorable receiver could be appointed who would then employ the attorney and pay his fee. In that case, both the trial court and the appellate court found that there was no agreement by the client to pay the attorney any additional fee and consequently dismissed the suit. By the way of dictum, the Court said:

We think it well settled that, where an attorney is employed to institute a suit on a contingent fee, and renders legal services in connection with the contract of employment, and the client, without the consent of the attorney, abandons the suit or makes a settlement thereof, nothing more appearing, the attorney is entitled to recover the reasonable value of the services rendered on a quantum me-ruit. (Citations omitted.)

Spears v. Polk, 17 Tenn.App. 556, 561, 69 S.W.2d 239, 242.

We construe these two cases to hold that where an attorney has been discharged without cause or the client abandons or settles the case without the attorney’s consent, the attorney may collect either on the basis of quantum meruit or on his contract. Neither case, however, specifically addresses itself to the question presented in the case at bar.

Plaintiff further cites Re Montgomery, which unquestionably stands for the proposition he propounds. In that case an attorney for an estate, who had a contract fee for a fixed amount, was discharged without cause. The Court allowed the attorney to recover a sum in excess of his contract fee on the basis of quantum meruit. In so doing, the Court of Appeals of New York reasoned:

In the case at bar the recovery allowed is upon the basis of quantum meruit without regard to the contract price, and the question for determination is whether the right of the attorney to recover is limited by the contract price of $5,000.
Thus far it has been decided that the discharge of the attorney canceled and annulled the contract and that the contract having been canceled, it could not limit the amount of the recovery although it might be considered in fixing the amount of the reasonable value of the services rendered; the theory being that the cancellation could not be a half way cancellation.
“It wholly stands or totally falls.” In re Tillman, 259 N.Y. 133, 135, 181 N.E. 75; Application of Krooks, 257 N.Y. 329, 178 N.E. 548.
Under that theory, the contract price does not constitute a limitation on the amount of an attorney’s recovery, although its effect may be to enhance the amount the client may be compelled to pay and in a certain sense penalizes the client for exercising a privilege given by law to discharge an attorney at will regardless of cause.

Re Montgomery, 272 N.Y. 323, 6 N.E.2d 40, 41 (1936).

Plaintiff also cites the California case of Tracy v. MacIntyre, 29 Cal.App.2d 145, 84 P.2d 526 (1938) as support for his position. In that case an attorney was employed on a contingent fee in connection with a personal injury claim and thereafter plaintiff sought an order to substitute another attorney. The first attorney in the order of substitution proceeding sought to have an attorney fee fixed for the services he had rendered to date. The California District Court of Appeals held that he was entitled to a fee for reasonable value of his services and to have it fixed prior to the conclusion of the litigation. This case is not in point. Additionally, it appears that a still later California Supreme Court case, Fracasse v. Brent, 6 Cal.3d 784, 100 Cal.Rptr. 385, 494 P.2d 9 (1972), overruled Tracy and holds that any action by a discharged attorney to collect a contingency fee prior to the conclusion of the tort action is premature. The Court further, at page 13, 6 Cal.3d at 790, 100 Cal.Rptr. at 389, uses language which we think is instructive:

We have concluded that a client should have both the power and the right at any time to discharge his attorney with or without cause. Such a discharge does not constitute a breach of contract for the reason that it is a basic term of the contract, implied by law into it by reason of the special relationship between the contracting parties, that the client may terminate that contract at will. It would be anomalous and unjust to hold the client liable in damages for exercising that basic implied right. (See Martin v. Camp, 219 N.Y. 170 [114 N.E. 46], setting forth the rationale for the New York rule.)

Defendants’ counsel cites annotations under 109 A.L.R. 674, for his position that other jurisdictions have limited recovery to the contract price. This work does cite cases from Kentucky and Wisconsin to this effect. We have, however, reviewed these cases and in all candor cannot say they sustain the position insisted upon by counsel. The Kentucky cases do imply that recovery will be limited to the contract price as they suggest the measure of damages is the contract price abated by a sum reasonably represented by the unperformed part of the labor. The Wisconsin case merely holds that when a court, in a foreclosure suit, has fixed the reasonable value for services of an attorney, such determination is binding in a subsequent suit for attorney fees on the basis of quantum me-ruit.

The only case we can find directly in point which is supportive of Defendants’ position, is Moore v. Fellner, 50 Cal.2d 330, 325 P.2d 857 (1958), wherein the California Supreme Court said, at page 863:

As declared in Salopek v. Schoemann (1942), supra, 20 Cal.2d 150,153[1], 155[3], 124 P.2d 21, “if an attorney is discharged for sufficient cause he is entitled to no more than the reasonable value of his services rendered prior to his discharge,” has “no cause to complain and is fully protected by payment of the reasonable value,” and may not recover the full contract amount (at least if such amount exceeds the reasonable value of the services). On the other hand in a case in which the discharge appears to have been without cause, it has been held that where the contract amount is less than the reasonable value of the services, recovery is nevertheless limited to the fee fixed by the contract. (See Oliver v. Campbell (1954), supra, 43 Cal.2d 298, 306[9], 273 P.2d 15.) In the present case plaintiff sought and was awarded judgment based on reasonable value. Under the rules above stated his recovery must not, of course, exceed the fee fixed by the employment contract, less expenses to which the client (defendant) was put by the change of counsel.

It seems to us that a necessary corollary to the rule that a client has the unqualified right to discharge an attorney, must be that the exercise of this legal right does not subject the client to additional penalties requiring him to pay an amount above the contract price.

Plaintiff’s counsel persuasively argues that the rule should be as insisted by him, especially in contingent fee cases, for the reason that a highly skilled and competent attorney might be discharged by the client, who then entrusts the case to a less skillful one. The resulting loss of the suit would preclude the first attorney from receiving any fee. This argument is certainly appealing. However, in this case we are not called upon to make a decision in regard to these assumptions.

It would seem to us that the better rule is that because a client has the unqualified right to discharge his attorney, fees in such cases should be limited to the value of the services rendered or the contract price, whichever is less. However, we do not so hold because such a holding is contrary to Brownlow, supra.

We do simply hold that under the circumstances here shown, wherein there is no claim of fraud or overreaching as to the discharged attorney, and the settlement ultimately received is not assailed as inadequate or improper, recovery is limited to the contract price.

The decision of the Chancellor in this case preserved for Attorney Chambliss every penny to which he would have been entitled had he not been discharged. Because he is an officer of the court and a minister of justice, we do not believe he should insist upon more.

To adopt the rule advanced by Plaintiff would, in our view, encourage attorneys less keenly aware of their professional responsibilities than Attorney Chambliss, as shown in this record (unfortunately, events of the last year have shown there are such), to induce clients to lose confidence in them in cases where the reasonable value of their services has exceeded the original fee and thereby, upon being discharged, reap a greater benefit than that for which they had bargained.

It is arguable that the Chancellor may be affirmed on two additional grounds. First, that the complaint filed in fact is one for damages rather than restitution, and under practically all authority, in such suit the contract price is a limiting factor. Secondly, because Attorney Chambliss had substantially completed his employment, his suit must be one on the contract rather than on the basis of quantum meruit. In view of the liberalized rules of pleading which have been adopted in this State, and the fact the case was tried without objection both below and here on the theory of quantum meruit, and further that the record is not clear as to the legal services necessarily rendered subsequent to Attorney Chambliss’ withdrawal, we believe the decision herein should rest only upon the grounds previously stated.

In conclusion, we think that Attorney Chambliss himself has identified the problem giving rise to this suit, when in response to a letter from Attorney Foster to him on May 5, 1972, seeking a re-allocation of the fees, he advised, “If the bargain you made was a bad bargain, then so was ours.”

The assignment of error is overruled and the judgment of the Trial Court affirmed. The costs of the cause are taxed to the Plaintiff and the sureties on its appeal bond.

PARROTT and SANDERS, JJ., concur.