author: KELLY, Judge.

text:
    Emil JURCICH, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, and Katherine Cronen, Defendants-Respondents.
    No. 36154.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 15, 1976.
    Motion for Rehearing or Transfer Denied July 9, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      Gerritzen & Gerritzen, St. Louis, for plaintiff-appellant.
    Joseph M. Kortenhof, St. Louis, for defendants-respondents.
   KELLY, Judge.

Emil Jurcich, plaintiff in the trial court, brings this appeal from a judgment of the Circuit Court of the City of St. Louis wherein the trial court sustained the joint motion of the defendants, General Motors Corporation and Katherine Cronen, for a directed verdict at the close of the plaintiff’s evidence and entered judgment on behalf of both of the defendants. We affirm.

Appellant’s Second Amended Petition on which the cause came on for trial pleaded a cause of action in fraud in five counts. The allegations of the petition essential to an understanding of the case are that on June 5, 1967, plaintiff, while in the employ of General Motors Corporation, Fisher Body Division, was working on an assembly line and while in the act of crossing the assembly line was struck in the back by a seat press being pushed down the assembly line and sustained injury to his lower back; that he reported to the plant dispensary shortly thereafter and informed Katherine Cronen, who was employed by General Motors Corporation as a nurse in the plant dispensary, of the fact and nature of his injury and that he was suffering pain in his lower back. He further alleged that a record was made of his complaints and that Miss Cronen examined him and found redness in the area of his back involved and Miss Cronen applied an ice pack to his lower back for 15 to 20 minutes, gave him some medicine for pain, advised him to use heat at home and gave him an appointment to see the company doctor; that the diagnosis at the plant dispensary was contusion of the left lumbar region; that on June 6, 1967, he again appeared at the company dispensary and it was found that he had spasm of the lumbar spine and he was given a muscle relaxant known as “Maolate;” that on June 9, 1967, he again was seen at the plant dispensary, reiterated his complaints of back pain and was given an appointment for June 10, 1967; that on June 10, 1967, and also on June 20, 1967, he again appeared at the dispensary and Miss Cronen, in her individual capacity and acting also as agent for the employer, gave him a pill, representing to him at the time that it was pill to relieve his pain, with the knowledge, orders and consent of the defendant corporation. Plaintiff further alleged that Miss Cronen and the corporate defendant, at the time she made this representation to plaintiff that the pill was a pain pill, knew that said representation was false and that the pill given to him was a placebo of sugar glucose with no medicinal value at all and containing no pain relieving ingredient whatsoever, and that plaintiff relied upon the fact that it was a pain pill. He further alleged that he had no knowledge of the fact that he was receiving a placebo and believed the false representation made to him by Miss Cronen that the pill was a pain pill and that he had a right to rely upon the representation as made to him by Miss Cronen, and that he did rely thereon. He alleged that he would not have taken the pill had he known that it was a sugar pill and not a pain pill and he was thereby misled, tricked and defrauded by Miss Cronen and his employer.

Plaintiff’s Second Amended Petition continued that as a direct result of this deception he was caused to have a continuous amount of pain and muscle spasm in the lower back, whereas if the pill had been a pain pill, as represented by the defendants, it would have relieved the back pain he was experiencing and the muscle spasm resulting therefrom. He sought actual damages “for the pain and suffering he was falsely permitted to endure by reason of the false pain pill” against both defendants in an amount of $1,000.00, and further prayed for punitive damages against General Motors Corporation in an amount of $50,000.00 and against Katherine Cronen in an amount of $1,000.00.

Counts II, III, IV and V adopt the allegations heretofore set out and plead separate Counts for the dispensing of a placebo on each of five separate dates, being, July 5, 1967, July 6, 1967, August 29, 1967, and January 15,1968, respectively. In each separate Count he seeks the same specified amount of actual and punitive damages against each of the defendants as prayed for in Count I, totalling $5,000.00 actual and $250,000.00 punitive damages against General Motors Corporation and $5,000.00 punitive damages against Miss Cronen.

Defendants filed a joint answer admitting much of Mr. Jurcich’s allegations contained in his Second Amended Petition, including the dispensing of the placebos by the plant physician, etc.

Many of the facts in this case are not actually disputed. In reviewing the question whether appellant made a submis-sible case in the trial court and whether the trial court erred in sustaining defendants’ motion for directed verdict at the close of plaintiff’s evidence, we must consider the evidence from the viewpoint most favorable to the plaintiff and give him the benefit of every reasonable inference which the evidence tended to support. Mathes v. Trump, 458 S.W.2d 297, 298[1] (Mo.1970). Viewed in this light we find that the evidence developed at trial is that appellant sustained an injury to his low back arising out of and in the course of his employment when he was struck in the back by a seat press on June 5,1967, and that he shortly thereafter went to the plant dispensary operated by his employer, General Motors Corporation, where he made known the fact of the accident and the nature of his complaints to Miss Cronen, a registered nurse in the employ of General Motors Company in the plant dispensary; that Miss Cronen examined him and noticed a redness in the area of appellant’s low back, applied an ice pack to this area for 15 to 20 minutes, gave him two aspirins and furnished him with an additional twelve aspirins to take with him, and directed him to take one aspirin every four hours as needed for pain; that on June 6, 1967, appellant returned to the dispensary where he “thought” he saw Miss Cronen and she again gave him some medicine to relieve his pain. On both of these occasions the medicine given to him afforded him some relief from his pain.

Appellant further testified that on June 9, 1967, he returned to the plant dispensary and asked the nurse if he could see the doctor. On June 10, 1967, he saw Dr. Patient, the plant physician, and the doctor gave him some medicine which did not relieve the pain very much. Appellant’s next visit to the dispensary was on June 20,1967, when he saw a nurse, who she was he could not say, and asked for something for pain. He was given a capsule and, relying on the fact that he had requested something to relieve him of the pain he was experiencing in his low back, he took the capsule expecting it to give him relief from his pain.

On June 21, 1967, appellant visited a private physician, Dr. Hill, because his back was still bothering him, and Dr. Hill prescribed a one week supply of Robaxisal-PH, a muscle relaxant with phenobarbital.

On July 5, and 6,1967, appellant returned to the plant dispensary complaining of back pains and on each of these occasions he was given a pill or a capsule, neither of which afforded him any relief for his pain. The records of the dispensary record that the medication dispensed on both of these dates were placebos. The placebos dispensed on July 5, 1967, were delivered to the appellant by a nurse, Elizabeth Lackey, and those on July 6, 1967, by nurse, Glenda Tippett. Around the middle of July a “model change layoff” occurred and as a result of this layoff appellant did not return to work until approximately the third week in August. About one week after appellant had returned to work he again went to the plant dispensary on August 29, 1967, seeking some relief for his aching back. On this occasion Miss Cronen dispensed the pills which admittedly were placebos.

On September 5, 1967, appellant went on sick leave, and on the next day he visited Dr. Cole, an associate of Dr. Hill, and Dr. Cole observed marked muscle spasm in the lower dorsal area of appellant’s back, indicative of the fact that appellant was still experiencing pain in that region. Dr. Cole prescribed robaxin and phenaphen with codeine and recommended that appellant wear a back brace and not work for a month.

On October 11, 1967, appellant returned to work. Between October 15 and 25, 1967, he was hospitalized in St. Elizabeth’s Hospital where he was placed in traction and given heat massage and exercise for his back. On January 2, 1968, he returned to work wearing a back brace. Again on January 15, 1968, he went to the plant dispensary, requested some medicine for pain and was given what he thought was a pain pill, by Miss Cronen. What he actually received was a placebo.

Appellant filed a claim with the Workmen’s Compensation Commission for his back injury and this claim was heard sometime in January, 1971. He was awarded a 20% permanent partial disability rating by the referee. At this hearing on his Workmen’s Compensation Claim, appellant learned for the first time that some of the medications he had received from the plant dispensary included the placebos mentioned above.

At trial, appellant attempted to introduce evidence testimony relative to the bills of Dr. Hill and Dr. Cole. Respondents objected on the ground that these bills were covered by the Workmen’s Compensation award and the objection was sustained. An offer of proof was made that if the witness was permitted to testify his answer would be that he paid $100.00 to the doctors “for the treatment rendered him by them.” An objection to the offer of proof on the grounds that it was irrelevant and immaterial was made and sustained. There was no evidence in the case that appellant paid for or became obligated to pay for any of the services or medicines afforded him by General Motors Corporation through the plant dispensary.

Respondents, at the close of appellant’s case, filed a Joint Motion for a Directed Verdict on the following grounds: 1) appellant’s claim was barred by the 2 year statute of limitations § 516.140 RSMo; 2) that any action appellant might have against the respondents has been barred by operation of the Workmen’s Compensation Law, §§ 287.010 et seq. RSMo; 3) appellant has failed to introduce any evidence that he suffered a pecuniary loss as a result of the alleged misrepresentations of the respondents; 4) appellant failed to show that the respondents, or either of them, did anything illegal; 5) appellant has failed to show that the respondents made any misrepresentation to him; 6) appellant’s evidence has failed to show that he suffered any substantial damage as a result of any alleged misrepresentations made by the respondents; 7) appellant’s evidence has failed to show that the alleged misrepresentations related to existing fact rather than an opinion relating to a future happening; and 8) appellant has failed to show that if he had been given a different kind of prescription he would have suffered less pain than he did after ingesting materials given to him by Nurse Cronen.

After hearing argument of counsel on the merits of the Motion in chambers, the trial court entered judgment sustaining respondents’ Motion “on grounds 3, 5, 6 and 8” and ordered the jury discharged and the costs assessed against the appellant.

On appeal the appellant contends that the trial court erred in directing a verdict for the respondents because (a) pain and suffering is a specific element of damages under the law; (b) that appellant did not have to prove that “true medication” instead of placebos would have relieved appellant’s pain; (e) the evidence did show that the respondents represented that what they were giving him would stop his pain; and (d) having shown pain and suffering as an element of actual damages, appellant was entitled to submit punitive damages.

Respondents, in replying to appellant’s contentions, initially assert that even if the trial court assigned an insufficient or erroneous reason for directing a verdict for the respondents, the judgment will be affirmed if its ruling was correct. They then reiterate the eight grounds contained in their Motion for Directed Verdict filed at the close of the plaintiff’s case as reasons why this judgment should be affirmed on appeal.

Appellant contends here, as he did in the trial court, that his cause of action is one sounding in fraud and denies that it is a malpractice case. He argues that that is the theory upon which he tried the case, and it is clear from a reading of the record that is the theory upon which the trial court proceeded and was the basis upon which it sustained respondents’ Motion. As we understand appellant’s theory of this case, it is, that he may in an action in fraud and deceit, recover actual and punitive damages from his employer and a nurse employed by the employer in a company operated dispensary, where a physician employed by the employer to render care and treatment to any employee sustaining an accidental injury arising out of his employment prescribes and the nurse, pursuant thereto, dispenses placebos to the employee without his knowledge, and he receives no relief from the pain and suffering occasioned by the work-connected injury.

We entertain serious doubts that a suit in deceit can be maintained under these circumstances. Neither party to this appeal has cited us to a case on all fours. We believe, however, that the holding in National Credit Associates, Inc. v. Tinker, 401 S.W.2d 954, 959[4] (Mo.App.1966) is persuasive. Here, as there, the gist of appellant’s action is the alleged wrongful acts or treatment afforded him by the prescribing of placebos by Dr. Patient and the dispensing of same to him by Nurse Cronen under Dr. Patient’s directions. “ . . . [T]he gravamen of the action is the defendant’s improper, careless, negligent or wrongful acts as a physician, . . .”

The prescribing of placebos is, in appropriate cases, a recognized form of medical treatment. Dr. Kilian Fritsch, M.D., an orthopedic surgeon, who testified by deposition as a witness for the appellant, identified a placebo as a substitute sometimes given instead of a narcotic or other drugs to a patient who is taking too many pain shots, and which has no effect in relieving a patient’s pain except where the “pain is in his head and he is psycho-neurotic.” He further testified that a placebo could include inert substances such as lactose capsules, and in some cases even vitamins. Placebos are used on some occasions to find out if a drug is effective or not, he said. He was asked whether he would give a man with muscle spasm in his back and a history of back injury a placebo without disclosing that fact to the man, and he replied: “No, you never tell anyone if you are going to give them a placebo, then you know it won’t work. You are hoping that you will fool him.” Appellant would have us hold that the mere prescribing and administering of a placebo, without advising the patient that what was being given to him was a placebo with no pain-killing qualities, would amount to deceit on the part of the physician prescribing and administering it. We conclude that is more properly an issue to be determined in a malpractice suit where expert testimony can be developed upon the specific symptoms presented. While there is evidence from Dr. Fritsch that he found no indication for the giving of a placebo to Mr. Jurcich when he saw him, he expressed no opinion that there was any impropriety in Dr. Patient prescribing placebos on the occasions appellant was given same.

We likewise discern that appellant’s Second Amended Petition contained no allegation that he sustained any pecuniary loss; rather, it alleged that by reason of the fact that he was given a placebo rather than a pain-killing pill he “continued in pain and muscle spasm,” because the placebo had no pain-killing effect. One of the essential elements of a cause of action based on fraud or deceit is that the plaintiff suffer injury which is a consequence of and proximately caused by the misrepresentations made to him and upon which he relied. Ackmann v. Keeney-Toelle Real Estate Company, 401 S.W.2d 483, 488[4] (Mo.banc 1966). A cause of action for deceit is one which protects the formulation of business judgments without being misled by others. Harper & James, The Law of Torts, Vol. 1, Ch. VII, Misrepresentation and Nondisclosure, Sec. 7.1, p. 527. Not all misrepresentations are the subject of a cause of action sounding in fraud. “In contradistinction with trespass and other direct injuries for which the complainant is awarded nominal damages if he should fail to plead and prove actual damage, deceit belongs to that class of tort of which pecuniary loss constitutes a part of the cause of action.” Lammers v. Gruelich, 262 S.W.2d 861, 864[3] (Mo.1953), Toenjes v. L. J. McNeary Construction Company, 406 S.W.2d 101, 106 (Mo.App.1966).

Appellant argues, however, that pain and suffering are “actual damages” under the law and are therefore recoverable in an action for fraud and deceit. The authorities he relies on are, for the greater part, cases where damages for personal injuries were the gist of the action. He relies on Vezina v. Souliere, 103 Vt. 190, 152 A. 798 (1931), a case where plaintiff, the purchaser of a horse, sued to recover for personal injuries sustained when he was kicked by a horse he had purchased from the defendant. He alleged that defendant had represented to him that the horse was gentle and did not kick. The Vermont court, by way of dicta, said that in an action for fraud under those facts, damages for personal injuries are recoverable “under proper allegations and proof.” The courts of this state follow the rule that in cases of fraud and deceit the defendant is responsible for those results, injurious to the plaintiff, which must be presumed to have been within defendant’s contemplation at the time of the perpetration or commission of the fraud, and that plaintiff may recover for any injury which is the direct and natural consequence of plaintiff’s acting on the faith of the defendant’s false representations. In those circumstances the plaintiff is not limited to general damages, but he also may recover special damages which have proximately resulted from the fraud. Salmon v. Brookshire, 301 S.W.2d 48, 56[11] (Mo.App.1957); Miller v. Higgins, 452 S.W.2d 121, 125 (Mo.1970).

“Pain and suffering” are recoverable as damages in those cases where there has been a personal injury and the pain and suffering are the proximate result of the defendant’s wrongful act causing the injury, and which necessarily and inevitably result from the injury. Southern Pac. Co. v. Hetzer, 135 P. 272, 274[1] (8th Cir. 1905), 22 Am.Jur.2d Damages § 196. Assuming arguendo that the failure of the placebos to relieve appellant of the pain and suffering he was experiencing from the injury he sustained on the job constitutes the pain and suffering recoverable in a suit for personal injuries, the question then becomes, are they also a pecuniary loss essential to support a cause of action in deceit. We conclude under the facts presented here they are not. When appellant went to the plant dispensary seeking relief from his pain and suffering due to the injury to his back, he already had that pain and suffering. There is not a scintilla of evidence in this record that by the dispensing of placebos to him his back injuries were worsened nor that any new injuries resulted. He simply obtained no relief from his pain. Even in the Vezina case, supra, relied upon by appellant, plaintiff alleged that he sustained personal injuries by reason of the misrepresentation of the defendant as to the docile character of the animal plaintiff had purchased from the defendant. It was in that context that the Vermont court said that damages for personal injuries might have been obtained if properly pled and proven. Here, there is no evidence that the pain appellant continued to suffer after taking the placebos worsened nor that they contributed to lengthen the period of recovery as evidenced by the Workmen’s Compensation referee’s award of 20% permanent disability. There is no causal connection whatsoever shown between the dispensing of placebos and appellant’s pain and suffering so that it would constitute a natural consequence of proximate result of the misrepresentations, if such they were.

Appellant chose to proceed on the theory of fraud and deceit, and despite the fact we have serious reservations that such a cause of action is available to him under the facts of this case, having done so, he has failed to prove one of the essential elements of a cause of action in deceit, i. e., that he sustained a pecuniary loss. He attempts to avoid this infirmity by arguing that the trial court erred in excluding his testimony that Drs. Hill and Cole charged him $100 for the treatment rendered him, and he was thereby precluded from proving any pecuniary loss. At the time this question was asked, respondents’ counsel objected on the grounds that those charges were covered in the Workmen’s Compensation claim and were immaterial and irrelevant to any issues in the case. The objection was sustained and appellant made his offer of proof. The objection to the offer of proof was that it was irrelevant and immaterial to any issues in the case and the objection to the offer of proof was sustained. Not only was there no allegation in the petition relative to medical and doctor bills, but there is no evidence in this record that these charges were for any matters proximately caused by the deceit alleged. Appellant argues that he had to go to the private doctors because the company doctor did not treat him nor give him relief from his pain and suffering by reason of the fact that he was given the placebos rather than pain killing drugs; that, therefore, these bills are proper. However, even assuming that to be true, there is no evidence in this case that the giving of the placebos was not proper medical procedure under the circumstances existing at the time they were given and, therefore, constituted a wrong. Admittedly, if Doctor Patient or those nurses who dispensed the placebos to the appellant under the direction of the plant physician, revealed to him at the time that the pills were in fact placebos and not pain relief pills, the very purpose for using the placebo would have been defeated. In the absence of any evidence that the use of the placebos was improper and constituted an unlawful misrepresentation which would support a cause of action founded upon deceit, the fact that the appellant withdrew himself from the plant physician’s treatment and underwent treatment by a private physician of his own choosing would not, in our opinion, render the bills he sought to introduce into evidence here material and relevant to the issues as framed by the pleadings.

We hold therefore that the trial court correctly ruled respondent’s Motion for Directed Verdict at the close of the appellant’s case. We do not consider the other points raised by either of the parties inasmuch as they are unnecessary to our decision.

We affirm.

SMITH, P. J., and CLEMENS, J., concur.

      . Dr. Patient had died by the time of trial.

      . The dispensary records conflict with these dates. They reflect that these visits were made by the appellant to the dispensary on June 19, and 20, 1967, respectively.

      .Throughout the testimony of appellant concerning the dispensing of placebos to him, in more than one instance he was uncertain as to the nurse who actually gave him the pills.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    PULASKI SAVINGS & LOAN ASSOCIATION, a corporation, Plaintiff-Respondent, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, a corporation, Defendant-Appellant.
    No. 36761.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 15, 1976.
    Motion for Rehearing or Transfer Denied July 9, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      J. H. Cunningham, Jr., Wilson, Cunningham & McClellan, St. Louis, for defendant-appellant.
    C. William Ported, Jr., Kappel, Neill, Staed & Wolff, St. Louis, for plaintiff-respondent.
   STEWART, Judge.

The defendant, U. S. F. & G., issued its policy of fire insurance to James and Frances Pratz on a residence in the City of St. Louis. Plaintiff, Pulaski Savings and Loan Association, was the holder of a note secured by a first deed of trust on the property. The policy provided that the loss be payable to plaintiff and the holder of a second deed of trust, as their interests may appear. The insured property was partially destroyed by fire. In this action by plaintiff against defendant under the “Standard Mortgage Clause” contained in the policy the trial court entered judgment in the amount of $3,113.33 in favor of plaintiff. On this appeal by defendant we affirm.

The “Standard Mortgage Clause”, in part, provides:

“Loss or damage, if any, under this policy, shall be payable to the mortgagee and this . interest . shall not be invalidated . by any change in the title or ownership of the property. .
“. . . the mortgagee shall notify this Company of any change of ownership or occupancy or increase of hazard which shall come to the knowledge of said mortgagee; . . otherwise this policy shall be null and void.”

Defendant contends that the policy was null and void because plaintiff had knowledge of a change of ownership in the property and failed to notify defendant of that change.

The ease was tried by the court upon a partial agreed statement of facts. The following facts are not in dispute. On August 25, 1969, James and Frances Pratz purchased the subject premises at 6566 McCune Avenue in the City of St. Louis. Subject to the deed of trust now held by plaintiff the Pratzes executed a loan transfer agreement to plaintiff mortgagee by which they agreed to assume and pay the balance due on the secured note. In March 1971, plaintiff, through its agents, secured a one-year fire insurance policy from defendant naming Mr. and Mrs. Pratz as the insured owners and plaintiff as mortgagee.

On September 14, 1971, Mr. and Mrs. Pratz executed and delivered to William Magee a General Warranty Deed on the property. The deed was not recorded until July 19, 1972.

On or about October 9, 1971, plaintiff received a letter from Hoyt Realty Company, agent for the Pratzes and the holder of a second deed of trust on the property. The pertinent parts of the letter are as follows:

“The above Purchasers [Pratzes] have gone sour and left town. We have nursed the loan along and have actually advanced seven monthly payments to you.
“We now have a purchaser, William Magee and Marie Magee, his wife, who are willing to take the payments over and make some repairs to the building.
“I have already secured a Quit-Claim Deed from Mr. and Mrs. Pratz and all I would require from Pulaski are your Transfer Papers for the new Purchaser.”
“The Transfer Papers should be dated as of Oct. 20, 1971.”

In response, the plaintiff sent a letter to Hoyt Realty enclosing loan assumption documents to be signed by Mr. and Mrs. Ma-gee. The documents were not returned and nothing further was heard from Hoyt Realty Company or from Mr. and Mrs. Pratz.

In March, 1972, plaintiff, through its agents, obtained a one year renewal of the fire insurance policy from defendant, again naming Mr. and Mrs. Pratz as the insured owners.

The fire which partially destroyed the premises occurred on August 20,1972. Following the fire, defendant learned of the transfer of ownership from Pratz to Magee and denied liability on the ground that plaintiff breached the insurance contract by failing to notify defendant of this change in ownership.

In addition to the agreed statement Michael Burdzy, the Chairman of the Board of plaintiff, testified that in response to the letter of October 9, 1971, loan assumption documents were sent to Hoyt Realty Company. They were not returned. No inquiry was made because when assumption documents are not returned plaintiff assumes that the sale has not been consummated.

There is no dispute as to the meaning of the word “knowledge” as used in the “Standard Mortgage Clause.” As used in the policy “knowledge” means actual knowledge as distinguished from constructive knowledge or notice. Goodman v. National Liberty Insurance Co. of America, 228 Mo.App. 327, 65 S.W.2d 1061 (1933); Concordia Fire Insurance Co. v. Commercial Bank, 39 F.2d 826 (8th Cir. W.D.Mo.1930).

In Hartford Fire Insurance Co. v. Morris, 27 F.2d 508 (6th Cir. N.D.Ohio 1928), with respect to knowledge of an increased hazard it was said l.c. 510:

“It is not enough that they should have had the means of knowledge. It is not enough that, by the exercise of a certain standard of diligence, the mortgagee or the trustee could have learned of the increased hazard.”

It is equally clear that if plaintiff had actual knowledge of the transfer of the property and did not, as conceded, notify defendant of the change the policy would be void. Trust Company of St. Louis County v. Phoenix Insurance Company, 201 Mo.App. 223, 210 S.W. 98 (1919).

The trial court found that “plaintiff did not have actual knowledge of the conveyance of the property.”

There is no question of the applicable law in this case. We must affirm unless there is no substantial evidence to support the judgment or unless the judgment is against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30, Mo.1976.

The primary basis for defendant’s contention that plaintiff had actual knowledge of the transfer of the property is Hoyt’s letter of October 9, 1971.

At the time the letter was written the property had been conveyed by the execution and delivery of the warranty deed of September 14, 1971. Plaintiff was not advised of these facts until after the loss occurred. The letter of October 9, directed plaintiff to date the transfer documents as of October 20, 1971. The letter merely advised plaintiff of the contemplated future transaction. The purchase and the delivery of the quit claim deed as contemplated by that letter never took place.

It was evident that many proposed transfers of real estate upon which plaintiff held deeds of trust did not take place. Mr. Burdzy testified that “as a matter of fact after a certain length of time we just assume that apparently the deal fell through. .” This is confirmed by the fact that the policy was renewed in the name of Mr. and Mrs. Pratz.

The trial court could reasonably conclude that plaintiff did not have actual knowledge that the property had been transferred. The condition of the policy had not been violated and as to the plaintiff the policy was in full force and effect at the time of the loss. The defendant raises no question with respect to the amount of the recovery.

The judgment is affirmed.

CLEMENS, P. J., and KELLY, J., concur.


author: GUNN, Judge.

text:
    Margaret SKELTON, Plaintiff, v. GENERAL CANDY COMPANY, Defendant.
    No. 36912.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 15, 1976.
    Motion for Rehearing or Transfer Denied July 9, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      Armstrong, Teasdale, Kramer & Vaughan, John J. Cole, Larry B. Luber, St. Louis, for defendant.
    James F. Koester, David G. Dempsey, Shifrin, Treiman, Bamburg & Dempsey, St. Louis, for plaintiff.
   GUNN, Judge.

Plaintiff-respondent fell on defendant-appellant’s parking lot. The jury awarded plaintiff $15,000 for injuries sustained as a result of the fall, and defendant has appealed. On appeal, defendant suggests four points of alleged trial error: 1) that the plaintiff’s verdict directing instruction embraced two theories of recovery, neither of which was supported by the evidence; 2) that plaintiff was permitted to amend her petition at the close of plaintiff’s evidence to advance a new theory of liability; 3) that testimony of plaintiff’s expert witness concerning the condition of defendant’s parking lot was improper; 4) that plaintiff was permitted to present evidence of specific damages not pleaded. We find no reversible error and affirm the judgment.

Plaintiff was 78 years old at the time of her injury. On the date of her accident, plaintiff had been driven to defendant’s place of business in St. Louis by her granddaughter to pick up some supplies for her daughter’s sandwich shop. Plaintiff had frequently performed this errand at defendant’s store and was familiar with the parking lot. After plaintiff had placed the order for supplies she returned to her granddaughter’s automobile on defendant’s parking lot, and as she was opening the automobile door, she stepped in a hole and fell on her hip causing a fracture necessitating surgery and the insertion of a prosthesis.

Defendant does not dispute the injury to plaintiff or that she did fall on its parking lot. Defendant concentrates its attack on plaintiff’s testimony as to the precise location of plaintiff’s fall and contends that there was insufficient evidence to establish that plaintiff fell in a hole on an incline in defendant’s parking lot. Plaintiff testified that she stepped in a hole in defendant’s parking lot and fell; that the hole was on an incline. Defendant argues that there was but a single incline on the parking lot and that according to the photographic exhibits, no hole appears on that incline. But defendant overlooks the fact that the evidence firmly establishes that there were two inclines on the parking lot— albeit one was substantially smaller than the other — and the smallest incline contained a hole in the asphalt. While plaintiff’s testimony appears at times to be confused and confusing, giving effect to the judicial aphorism that the evidence is to be viewed in the light most favorable to the verdict, a jury could find that the plaintiff could have fallen by reason of a hole in the asphalt in the smaller incline of the parking lot. The defendant concedes that there was a hole on the parking lot but argues that it was a substantial distance from the larger incline and suggests that the evidence clearly places the plaintiff on the large incline at the time of her fall. Thus, defendant concludes that the plaintiff could not have fallen in a hole. But there is evidence from the plaintiff and her granddaughter from which a jury could find that plaintiff fell in a hole on the small incline.

Having thus determined that there is sufficient evidence to establish that plaintiff fell in a hole in an incline (the small incline), we tackle defendant’s first point of alleged error: that plaintiff’s verdict directing instruction submitted dual theories of recovery in the conjunctive. Plaintiff’s verdict director reads:

“Your verdict must be for the plaintiff if you believe:
First, that defendant’s parking lot had a hole in the asphalt and was on an incline and as a result the parking lot was not reasonably safe for customers, and
Second, plaintiff did not know of and by using ordinary care could not have known of this condition, and
Third, defendant knew or by using ordinary care could have known of this condition, and
Fourth, defendant failed to use ordinary care to repair it, and
Fifth, as a direct result of such failure, plaintiff was injured.”

Defendant complains that paragraph First of the instruction submits dual theories of recovery based on alleged negligence of a hole in the driveway and negligence due to maintaining an incline. Of course, the practice of submitting dual theories of recovery in the conjunctive is prohibited by MAI 1.02. But defendant’s dual theory issue has not been preserved for appellate review, as it was not presented to the trial court in the motion for new trial.

The Supreme Court rules clearly set forth the procedure for preserving error for appellate review. When a specific objection to an instruction is made during the trial, it is sufficient to make a general statement in the motion for new trial of any allegations of error based thereon, but if no specific objection is made at trial, the motion for new trial must contain the specific objection. Rules 70.02; 78.07.

“The intent is that both the trial court and the appellate court may know specifically what the objections are, and that the appellate court may know that they have been presented to the trial court.” Ayres v. Keith, 355 S.W.2d 914, 917 (Mo.1962).

The allegations of error made to the trial court must be “sufficiently definite to direct the court’s attention to the particular acts or rulings asserted to be erroneous.” Pasley v. Newton, 455 S.W.2d 43, 47 (Mo.App.1970). The purpose of these rules is to give the trial judge one last opportunity to correct his errors without the delay, expense or hardships of an appeal. Safe-Buy Real Estate Agency v. Hemphill, 498 S.W.2d 599 (Mo.App.1973); Pasley v. Newton, supra.

The defense did make what could be construed as a specific objection to plaintiffs verdict director when it was first presented:

Defendant’s counsel: “Well, I want to state on the record that I object to the new theory that plaintiff has injected in here, which would permit the jury to find against the defendant if they find that there was a hole in the parking lot, even in the driveway where the plaintiff had positioned it. And, also, that the parking lot was on an incline. I think that his claim that it is a basis of negligence that the parking lot was on an incline is a separate, distinct and new theory of negligence which we are not prepared for, and I claim surprise; and I would ask the Court to eliminate that theory from the verdict directing instruction.
“The Court: Well, it is the Court’s understanding of that instruction, which is No. 3, that there was a hole in the asphalt and that it was on an incline and that the hole being in a point where the parking lot was inclined was merely an addition that made it not reasonably safe for customers. I don’t construe the instruction as finding that the mere fact that the parking lot is on an incline is a dangerous condition.”

We note that the foregoing objection does not precisely designate that the instruction encompasses dual theories — the objection seems to go to the injection of a “new” theory. In any event, even if we were to accept the objection as being specifically directed at dual theories submission, the defendant’s motion for new trial is devoid of objection or reference, either specific or general, that the instruction contained dual theories. Hence, we find that the defendant cannot argue the dual theory issue on appeal, for the trial judge was not given opportunity to consider that issue at the time of the motion for new trial.

Defendant also argues that the plaintiff was improperly permitted to amend her petition at the close of plaintiff’s evidence to allege negligence by defendant by reason of a hole on an incline in the asphalt on the parking lot. Plaintiff’s initial petition alleged that plaintiff’s fall occurred when she stepped on “cracked and uneven pavement” which defendant had allowed to develop in its parking lot. During the cross-examination of plaintiff, defendant’s counsel sought to elicit from her that the cause of plaintiff’s fall was a steep incline on the parking lot rather than a hole in the parking lot. During the cross-examination plaintiff identified the hole in which she fell as being on an incline. Thereafter plaintiff sought and was granted leave to amend her petition to charge that the defendant had negligently permitted a hole to form in its parking lot, failed to repair the hole and that the hole was located on an incline. We believe that the amendment conformed with the evidence presented. Inasmuch as it was defendant’s examination of plaintiff that established that plaintiff had fallen in a hole on an incline, the pleading, without formal amendment, should have been treated as if amended to conform to the evidence and issues raised by the implied consent of the parties. Section 509.500 RSMo 1969; Rule 55.33(b); Middleman v. Complete Auto Transit, Inc., 486 S.W.2d 456 (Mo. banc 1972). Consequently, the trial court did not err in allowing the formal amendment. Furthermore, the decision whether to grant leave to amend pleadings is within the sound discretion of the trial court. Boling v. State Farm Mutual Automobile Ins. Co., 466 S.W.2d 696 (Mo.1971); S. v. W., 514 S.W.2d 848 (Mo.App.1974), and since we believe that the amendment conforms with the evidence, we find no abuse of the trial court’s discretion in permitting the amendment to plaintiff’s petition.

Defendant also insists that the amendment enlarged the issues, and the exercise of sound discretion required that there be provision for adequate protection of the rights of the defendant, such as allowing a continuance to allow time for preparation to meet the issues. Such argument is without merit as there was no request for a continuance by defendant, and for the further reason, as we have mentioned, that it was the defendant who injected the matter of the parking lot incline into the case.

In its persistent attack on plaintiff’s verdict directing instruction, defendant asserts that the plaintiff’s testimony contains the admission that the location of her fall was on the large incline, far removed from the location of the hole. The plaintiff did testify that where she fell was but “a few steps” from the entrance door to defendant’s store, which defendant argues would have placed her on the large incline and nowhere near the hole. But plaintiff was steadfast in her testimony that she fell in a hole on an incline. (We have already stressed in fulsome detail the fact that there were two inclines). As stated in Jockel v. Robinson, 484 S.W.2d 227, 231 (Mo.1972):

“[I]f a party in full possession of his mental faculties testifies unequivocally and understandingly to a material fact peculiarly within his own personal knowledge, which negatives his right of action or defense, he is precluded from relying upon any testimony to the contrary, unless he gives some reasonable explanation of his previous statement as having been the result of mistake, oversight, lapse of memory or misunderstanding. In the absence of such an explanation, the party may not have the benefit of any testimony which is contrary to his own testimony, . . . Where, however, the testimony of a party is not a positive statement of fact within his own knowledge, but is a mere estimate or opinion, it does not have the effect of a judicial admission.” [Emphasis added].

Plaintiff’s testimony as to the precise distance she was from the defendant’s store when she fell was merely an estimate, and the transcript as a whole readily establishes that plaintiff had great difficulty in estimating distances. It is undoubtedly for just such reason that the rule has evolved that a party is not conclusively bound by estimates of time, speed or distance. Vaeth v. Gegg, 486 S.W.2d 625 (Mo.1972).

Defendant’s employee witnesses testified that plaintiff was found on the large incline where no hole existed, but plaintiff’s granddaughter testified that plaintiff was found on the small incline near the hole. And, of course, plaintiff testified she was near the hole, which was on the small incline. Therefore, there was a conflict of evidence between plaintiff’s and defendant’s witnesses which was resolved by the jury in plaintiff’s favor. And we leave it to the jury to weigh the evidence and judge the credibility of the witnesses. Wilkins v. Cash Register Service Company, 518 S.W.2d 736 (Mo.App.1975); Haas Baking Company v. Luzio, 512 S.W.2d 428 (Mo.App.1974).

Defendant also argues that even if plaintiff fell in the hole, the submission of the hole in plaintiff’s verdict director as causing the parking lot to not be reasonably safe was improper for the reason that the hole was an open and obvious condition; that plaintiff was thereby charged with constructive knowledge of the hole. The duty of the owner or possessor of land (in this case, defendant) to an invitee (plaintiff) is based on his superior knowledge of the defective condition of the premises which results in injury. Hokanson v. Joplin Rendering Company, Inc., 509 S.W.2d 107 (Mo.1974); O’Dell v. Cook’s Market, Inc., 432 S.W.2d 382 (Mo.App.1968). So the rule, as reflected by paragraph third of MAI 22.03, is that an invitee may not recover when the dangerous condition is so open and obvious that it is known, or, in the exercise of ordinary care, should have been known by the invitee. Hokanson v. Joplin Rendering Co., supra; Dixon v. General Grocery Company, 293 S.W.2d 415 (Mo.1956); Ecker v. Big Bend Bank, 407 S.W.2d 45 (Mo.App.1966).

In this case, plaintiff testified that she fell in the hole as she was stepping backwards to move out of the way of the opening car door. She had initially emerged from the car on the other side, so this was the first time she had had the opportunity to be near the hole. See Burch v. Moore’s Super Market, Inc., 397 S.W.2d 590 (Mo.1965). She had been to the parking lot previously, yet she testified that she did not know that the hole was there and had not seen it until after her fall. Defendant had the duty to provide a reasonably safe means of ingress and egress. Demko v. H&H Investment Company, 527 S.W.2d 382 (Mo.App. banc 1975); Hulahan v. Sheehan, 522 S.W.2d 134 (Mo.App.1975), and plaintiff had the duty to walk with the same degree of care as an ordinarily prudent person. Cunningham v. Bellerive Hotel, Inc., 490 S.W.2d 104 (Mo.1973); Murphy v. S.S. Kresge Co., 239 S.W.2d 573 (Mo.App.1951). But plaintiff was not required to be unusually alert, Holmes v. Egy, 202 S.W.2d 87 (Mo.App.1947), or to peer down, Cunningham v. Bellerive Hotel, Inc., supra, or to walk with her eyes down and “glued” to the pavement, Wyatt v. Southwestern Bell Telephone Company, 514 S.W.2d 366 (Mo.App.1974), for there was nothing here to draw her attention to the danger of the hole, Murphy v. S.S. Kresge, Co., supra, or give her reason to anticipate the danger, Burch v. Moore’s Super Market, Inc., supra. We cannot find from the evidence here that the hole was so obvious that as a matter of law plaintiff should have been aware of its presence. Under the circumstances of this case, the question whether plaintiff should have been aware of the defect in the exercise of due care was a jury question. Burch v. Moore’s Super Market, Inc., supra; Summa v. Morgan Real Estate Co., 350 Mo. 205, 165 S.W.2d 390 (1942); Wyatt v. Southwestern Bell Telephone Company, supra; Willis v. Rivermines I.G.A. Supermarket, 350 S.W.2d 437 (Mo.App.1961). The jury found for plaintiff, and we do not perceive a basis for interfering with that finding.

Defendant’s final assault on the verdict-directing instruction relates to paragraph fourth: “defendant failed to use ordinary care to repair it [the defective condition on the parking lot].” It is here asserted that this part of the instruction imposed a greater duty on defendant than that which is imposed by law, i. e. the alternative duty to make reasonably safe or warn. However, defendant has also failed to preserve this point for appeal, as there is no mention of this issue in defendant’s motion for new trial. We therefore do not consider it. Pasley v. Newton, supra.

Defendant’s next allegation of error concerns the admission into evidence of the amount of plaintiff’s hospital bill and overruling defendant’s motion to strike such evidence. It is alleged that the claim for these specific damages was not pleaded and that the information was not provided in the answers to interrogatories. Plaintiff’s petition alleged that “plaintiff will in the future become obligated for bills for necessary medical care and treatment and medicine.” In interrogatories, plaintiff was asked about her hospitalization and the amount of her bills. The answers were that she was hospitalized May 2-25, that her physician’s bill was $540 and that she did not have the bill for the hospital. There was no supplementation of these answers. At trial, plaintiff was allowed to testify, without objection, that she was in the hospital from May 2 through May 28,1973. At this point, nothing was said with regard to expenses, but during the trial plaintiff’s hospital records were marked for identification, and defendant’s counsel stated that he had no objection to the use of a copy of the records as an exhibit. The records were thereupon accepted into evidence under the Business Records Act. Subsequently, plaintiff’s counsel read to the jury the amount of the hospital bill ($2,527) from the copy of the hospital records, and defendant’s counsel objected that the medical bill was far in excess of what had been pleaded or had been set forth in the answers to interrogatories and thereby claimed surprise.

It is true that medical and surgical costs must be specially pleaded. Moore v. Parks, 458 S.W.2d 344 (Mo.1970). But plaintiffs petition said that she will in the future become obligated when she had already received medical care and been hospitalized. Although perhaps she had already incurred debt, we agree with the trial judge that the pleadings were broad enough to cover the hospital bills she had not yet received. In any event, evidence was introduced at trial pertaining to such hospital expenses and therefore the pleadings must be considered as having been amended to conform to this evidence. Section 509.500; Gooch v. Avsco, Incorporated, 340 S.W.2d 665 (Mo.1960). Plaintiff had testified as to her hospitalization and, more importantly, the hospital records containing the bill had already been received into evidence. When objectionable documentary evidence is admitted without objection, its contents may be properly considered as evidence of the facts therein set forth. Denton Const. Co. v. Missouri State Highway Com’n, 454 S.W.2d 44 (Mo.1970). Where written exhibits are introduced, their entire contents are in evidence. Ellis v. Farmer, 287 S.W.2d 840 (Mo.1956); Landman v. John Hancock Mut. Life Ins. Co., 211 S.W.2d 530 (Mo.App.1948); Sikes v. Riga, 221 Mo.App. 152, 297 S.W. 727 (1927). This is not, therefore, an instance where the trial court granted its discretionary leave to amend pleadings in such a way as to enhance damages, see Moore v. Parks, supra, so it was not necessary to take precautions to protect the rights of the party adversely affected.

Since the objection to the evidence was not adequately preserved, defendant’s argument concerning the failure to supply supplemental answers to interrogatories also fails. Yet, we wish to comment on the merits of defendant’s contention that the evidence of the hospital bill was inadmissible because of failure to supply the amount in supplemental answers. The rule is that when an answer of a material and substantial nature becomes incorrect because of subsequent information obtained, the party has an obligation to correct it by supplementation. However, “[njecessarily, a trial court first will determine whether in the particular situation the opposing party has been prejudiced. The court might find in some instances, . . . that no prejudice resulted.” Laws v. City of Weliston, 435 S.W.2d 370, 375 (Mo.1968). In the instant case, the trial court reasonably concluded that defendant could not claim surprise or prejudice, since it was fully apprised of plaintiff’s hospitalization.

The final issue which we consider relates to the testimony of plaintiff’s expert witness, who, after studying pictures of the hole in defendant’s parking lot, testified that depending on weather conditions it would take from 10 to 14 months for the hole to develop. Defendant objected that the testimony was too speculative and that the witness was not qualified to testify. The trial court is vested with wide discretion in deciding an expert witness’ qualifications. State ex rel. State Hwy. Com’n v. Reynolds, 530 S.W.2d 34 (Mo.App.1975). Plaintiff’s expert witness had substantial practical and specialized experience in the supervision and maintenance of asphalt parking lots, which provides a proper source of expertise. Russell v. Mid-Western Homes & Truss, Inc., 514 S.W.2d 651 (Mo.App.1974). We find no abuse of discretion in permitting plaintiff’s expert witness to testify. Further, the fact that the witness rendered his opinion based on photographs, which were clear and distinct, does not attenuate or vitiate the witness’ opinion. Chambers v. Kansas City, 446 S.W.2d 833 (Mo.1969).

Defendant also contends that hypothetical questions asked of the witness regarding the development time for the hole did not hypothesize sufficient facts. It is, of course, not necessary to state every fact of record in a hypothetical question, Golden v. National Utilities Co., 356 Mo. 84, 201 S.W.2d 292 (1947), and we consider only those omissions to the hypothetical to which specific objection has been made. De Moulin v. Kissir, 446 S.W.2d 162 (Mo.App.1969). The specific omissions in the question to which objection was raised were the factors of traffic and weather. The expert witness testified, on cross-examination, that traffic was not a significant factor for his opinion, and his answer specifically allowed for deviation in weather conditions. Giving effect to the maxim that the trial court has broad discretion in the matter of hypothetical questioning of an expert witness and that the omission of some facts is allowable, we find no abuse of discretion in the hypothetical posed to plaintiff’s expert witness. Schmitt v. Pierce, 344 S.W.2d 120 (Mo. banc 1961).

The judgment is affirmed.

SIMEONE, P. J., and KELLY, J., concur.

      . Zipp v. Gasen's Drug Stores, Inc., 449 S.W.2d 612 (Mo.1970).

      . Presumably defendant would be referring to the steep incline without the hole in it as opposed to the smaller incline with the hole.

      . Defendant argues on appeal that the following portion of its motion for new trial raised the “dual theory” argument:
      “Paragraph ‘First’ improperly combined the existence of a hole (in the driveway) with an incline in the parking lot not related to or connected with the hole as a joint, concurring and contributing cause of her fall when there was no pleading or evidence that such a combination of circumstances or conditions caused her fall; and therefore said instruction was broader tha [sic], and beyond the scope of the pleadings and the evidence.” [Emphasis added].
      This objection seemingly admits that the two elements (hole and incline) were joined in the instruction as a single cause of the fall. The objection was that there is no evidence to support the combining of these two elements. The trial court, we believe properly, disagreed. Defendant’s memorandum of law submitted with the motion for new trial, supports our view that this objection went to another point. There is no mention of the “dual theory” issue or cases on the point in the memorandum.

      . As plaintiff insists and as previously mentioned, reference was to the hole in the smaller of the two inclines on the parking lot.

      . While defendant sought only to encompass the large incline without a hole, defendant’s cross-examination of plaintiff brought out two inclines, one with a hole. And it is the smaller incline with the hole that plaintiff, on cross-examination, testified was the villain causing her injury.

      . Defendant’s motion for new trial on this point provides:
      “If there was insufficient evidence upon which to base a finding that defendant had a duty to repair, alter or reconstruct the parking lot as submitted in paragraph ‘Fourth’ or that defendant was injured by reason of defendant’s failure to do so as submitted in Article (sic) ‘Fifth.’ ”
      Defendant’s brief on this point also only speaks of the repair and warning regarding the incline (large incline?) and makes no reference of the hole.

      . We do not accept plaintiff’s interpretation that the form of this model instruction allows a plaintiff to always choose to submit one particular specification of defendant’s duty. The duty still remains an alternative duty to make reasonably safe or warn and most cases should be submitted in the disjunctive. See e. g. Weisman v. Herschend Enterprises, Inc., 509 S.W.2d 32, 33 (Mo.1974); Demko v. H&H Investment Company, supra at p. 386. The Missouri cases have consistently followed the Restatement as to the duty owed an invitee. The Restatement (First) of Torts § 343 (1938) expressly stated that the duty was to make the condition reasonably safe, or to give an adequate warning. See Harbourn v. Katz Drug Company, 318 S.W.2d 226 (Mo. 1958); McClure v. Koch, 433 S.W.2d 589 (Mo.App.1968); O’Dell v. Cook’s Market, Inc., supra. The Restatement (Second) of Torts § 343 (1965) is less explicit as to the duty owed and simply provides that the owner or possessor must “exercise reasonable care to protect [invitees] against the danger.” Yet, we believe that it is clear that the alternative duty to make reasonably safe or warn of an unknown danger persists under the second Restatement and the Missouri case law based thereon. See Gilpin v. Gerbes Supermarket, Inc., 446 S.W.2d 615, 619 (Mo. banc 1969); Demko v. H&H Investment Company, supra, at p. 385; Plumiee v. Ramsay Dry Goods Company, 451 S.W.2d 603, 606 (Mo.App.1970); Restatement (Second) of Torts § 343 Comments (b), (d).

      . Defendant argues that it had waived objection only to the use of a copy of the records. However, the exhibit was accepted into evidence “under the Business Records Act.” We believe that, at this point, the records were admitted generally, and not for any limited purpose.

      . §§ 490.660-490.690 RSMo 1969.

      . “Depending on what your weather conditions had been and how severe a winter you have had, from ten to fourteen months to go from just a small crack to a hole this size.”


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. U. D. EARVIN, Defendant-Appellant.
    No. 37041.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 15, 1976.
    Motion for Rehearing or Transfer Denied July 9, 1976.
    Application to Transfer Denied Sept. 13, 1976.
    James C. Jones, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Charles A. Blackmar, Special Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant appeals from a judgment of conviction of murder in the second degree, and a sentence of ten (10) years imprisonment. For a reversal of his conviction, he argues that the court committed error by the erroneous (1) reception into evidence of a prior consistent statement of a state’s witness, and (2) allowing into evidence improper rebuttal testimony on collateral matters. We affirm.

From the evidence a jury could have reasonably found that defendant shot and killed the victim, Rufus Mack, a fellow employee, because of a dispute as to the winner of a bet on a bowling machine. The dispute arose at a local tavern and restaurant near their place of employment; however, the fatal, senseless homicide occurred at the local baseball stadium.

After the dispute, defendant made threats in the presence of witnesses that if Mack did not give him his money, he was going to shoot him in the a — . Defendant then left the tavern, but returned shortly thereafter. Upon defendant’s return, according to witness Benjamin Hall, defendant came into the bathroom and began to discuss the dispute. Hall testified that he told defendant a $5.00 bet was not worth the trouble; that defendant showed him a revolver, and said he was going to the ball park “and shoot that rat in the a — .”

On cross-examination of Hall, the defense, by the use of a transcript of a previous trial, put before the jury admissions of Hall that the witness (1) did not talk to the defendant about getting into trouble over the bet; (2) did not remember seeing a weapon; (3) did not remember seeing defendant at the tavern that evening; (4) did not remember seeing defendant in the bathroom; and (5) did not remember hearing defendant threaten Rufus Mack.

To counter the defense’s cross-examination of Hall, the state, over objections of the defendant, questioned Hall on redirect about his earlier statements made at the coroner’s inquest which were consistent with his trial testimony. Each statement elicited was within the scope of the inconsistent statements introduced by the defense on cross-examination.

Defendant’s argument that Hall was not impeached borders almost upon the frivolous — nor do we agree with defendant that Hall was not impeached because defendant did not formally introduce the transcript of the previous trial containing Hall’s statements. Since Hall admitted the prior inconsistent statements, not only was formal introduction of his statements unnecessary but also they were inadmissible. State v. Wallach, 389 S.W.2d 7, 12-13 (Mo.1965). Nor does McElhattan v. St. Louis Public Svc Co., 309 S.W.2d 591 (Mo.1958) support defendant’s contentions. In McElhattan, the witness, unlike the instant case, denied making the prior inconsistent statements. We agree that until a witness is impeached, admission of prior consistent statements is improper and self-serving. But, here, Hall was impeached on cross-examination since he admitted the making of prior statements contrary to his present trial testimony. Consequently, we hold that once a prior inconsistent statement has been introduced, thereby impeaching the witness, it is not error for the court to allow a prior consistent statement to be used for the purpose of rehabilitating the witness. Piehler v. Kansas City Public Svc Co., 360 Mo. 112, 226 S.W.2d 681, 683-84 (1950) and State v. Emrich, 250 S.W.2d 718, 724 (Mo.1950). Likewise, under similar circumstances, in State v. Emma, 324 Mo. 1216, 26 S.W.2d 781 (1930), the court ruled: “. [Witness . . . had been impeached, on cross-examination, by proof of his contradictory testimony at the preliminary hearing, it was proper to permit him . to testify as to his prior statements consistent with his testimony at the trial, for the purpose of rehabilitation. . . . ” Id. at 784.

To place defendant’s next allegation of error in the proper context, we note that the core issues in the case were whether defendant (1) mortally wounded Rufus Mack with premeditation and malice aforethought, and (2) shot the victim in self-defense. Thus, to rebut the state’s evidence that defendant returned to the tavern after the dispute over the bet and went to the ball park in search of Rufus Mack to take his life, defendant testified that he returned to the tavern not to find Rufus Mack, but to collect a $10 bet he had with Robert Bennett that was held by Lewis Jackson. To rebut this testimony, the state put Robert Bennett on the stand who testified that Rufus Mack was the stakeholder, not Lewis Jackson.

Defendant argues that Bennett’s testimony is improper rebuttal upon a collateral matter. Not so. Defendant’s purpose of returning after the dispute shed light and was relevant upon the issue of premeditation and malice aforethought. Moreover, we note that the defendant, not the state, first introduced evidence as to the identity of the stakeholder of the bet between him and Bennett. Thus the state in no way extended the scope of the trial by introducing evidence to contradict defendant’s testimony. In any event, the question of the collateral nature of testimony, the admissibility of rebuttal testimony rests in the sound discretion of the court. Here we find no abuse of discretion since the admitted testimony of Bennett tended to refute the defendant’s statement that he had returned to the tavern to collect $10 from Lewis Jackson. In State v. Williams, 442 S.W.2d 61, 65 (Mo. banc 1969), our Supreme Court said: “Any competent testimony that tends to explain, counteract, repel or disprove evidence offered by defendant may be offered in rebuttal of the defendant’s testimony or evidence . . . [UJnless the court abuses its discretion, or the defendant’s rights are prejudicially affected, an appellate court will not reverse . . ..” (Emphasis added.) We find neither any evidence of abuse of discretion nor any evidence presented by defendant to show how his case was prejudicially affected. Thus we reject this claim of error.

Judgment affirmed.

WEIER, P. J., and KELLY, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael E. HARRIS, Defendant-Appellant.
    No. 37078.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 15, 1976.
    Motion for Rehearing or Transfer Denied July 9, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      Robert C. Babione, Public Defender, James C. Jones, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Ronald B. Sa-fren, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   KELLY, Judge.

Michael E. Harris was convicted by a jury of the crime of burglary in the second degree, § 560.070 RSMo. 1969, and the trial court having found, after an evidentiary hearing, that he had previously been convicted of a felony, sentenced him to a term of eight years in the custody of the Missouri Department of Corrections. §§ 560.095(2) and 556.280 RSMo. 1969. He appeals.

By his first point presented to this court he attacks the sufficiency of the evidence to overcome his motion for judgment of acquittal at the close of all of the evidence to sustain a finding that he “broke into the building as required for proof of burglary.” In deciding this point after a verdict of guilty by a jury, the reviewing court accepts as true all evidence contained in the record tending to prove the defendant’s guilt, whether such evidence is direct or circumstantial in nature, together with all favorable inferences that can be reasonably drawn therefrom and disregards all contrary evidence and inferences. State v. Reed, 453 S.W.2d 946, 949[5] (Mo.1970).

The evidence viewed in light of the foregoing principles, shows that Mr. Harris was taken into custody sometime shortly after 1:00 a.m. on September 15, 1974, in the interior of an A & P grocery store located at 2718 South Grand Boulevard in the rear storage area of the store, hiding behind a grocery cart, by Patrolman A1 Berberich of the St. Louis Police Department who was in the process of investigating a report of a burglary of the store. At the time the police officers arrived on the scene Officer Berberich observed that the building’s scissor-type security door had been pried open and the lock was lying on the ground near the entrance to the store. The jamb of the metal-encased glass exit door was pried open but the bolt was still locked. After the police officers entered the interior of the grocery store they observed one man in the center aisle run towards the rear of the building and near one of the check-out counters they found three plastic bags filled with cigarette cartons. Officer Berberich proceeded to the rear of the building and located two men there hiding behind some boxes. His further search of the premises led to the discovery of the appellant as stated heretofore. All three men taken into custody inside the building were wearing gloves at the time.

Officer Daniel Day, a member of the Evidence Technician Unit of the St. Louis Police Department took into his possession on the scene a tire iron, a chisel and three locks. The tire iron was taken from the front of the store and the chisel from the rear of the store in the trash area. One of the locks, a padlock, was found lying on the floor next to the screened-in liquor department and another in the produce storage area. The third lock was located on the ground behind the front entrance security door. These locks were received in evidence at trial without objection.

Defendant testified in his own defense. He admitted his presence in the store and that at the time he entered he was armed with a tire tool. He also admitted that he had put the cigarettes in the trash bags with the intention of stealing them. He explained that he and his two friends were riding by the store when they observed three or four “guys” at the A & P front door; two of them inside the store and one on the outside; that they returned to the store to scare off these other men by slamming on the brakes of their car, slamming the doors and kicking on the back doors of the store. After they did this, they put on gloves to go into the store and to keep their fingerprints off of things in the store. When they arrived at the entrance to the store a metal grating across the entrance was not open and they had to push it open to get inside. He also testified that at the time of trial he was twenty-two years of age and in 1971 had been convicted in the court of St. Louis of the offense of “Burglary and Stealing” and was sentenced to two years for that offense. He also admitted that in 1973 he was incarcerated in the City of St. Louis and escaped from that incarceration. He pleaded guilty to a charge of escape on that occasion.

It is apparent from appellant’s argument that the element of burglary which he contends was not established is “breaking.” The evidence here authorized a finding that someone had entered the locked and closed A & P store without permission. Appellant himself testified that to gain entrance to the store it was necessary for them to push aside a metal grating across the entrance which was not open. The force to constitute a breaking in burglary second degree need not be more than the mere pushing open of a door which is shut. State v. Rhodes, 408 S.W.2d 68, 70[3] (Mo.1966), State v. Cox, 527 S.W.2d 448, 452[5] (Mo.App.1975). The mere raising of a kitchen window has been held sufficient breaking to support a conviction of burglary in the second degree. State v. O’Brien, 249 S.W.2d 433, 434[1-4] (Mo.1952). It has been held that entering a building by pushing aside boards barricading a window was “breaking and entering” within the meaning of the second degree burglary statute. State v. Smith, 357 S.W.2d 120, 122[3] (Mo.1962). We conclude that the appellant himself supplied any lack of direct evidence the State may have lacked in its prosecution by his testimony that to gain entrance into the store it was necessary for him and his cronies to push aside the metal grating across the entrance to the building.

However, we also conclude that in the absence of direct evidence of “breaking” there is sufficient circumstantial evidence to meet the rigorous tests imposed by law to sustain a conviction on circumstantial evidence alone. From the evidence the jury could find that a burglary occurred; that it was still in progress when the police officers arrived on the scene and that the officers interrupted the burglary thereby preventing the stealing of the trash bags of cigarettes appellant admittedly had placed in the bags for that purpose. The presence of gloves on appellant’s hands and on the hands of his cohorts further supports his testimony that they were worn for the purpose of avoiding detection and identity by fingerprints. His presence in the store without the permission of the owner or manager, taken with the other evidence, reasonably precludes any reasonable theory of appellant’s innocence. We rule this point against the appellant.

Appellant’s second point relied on is that the trial judge erred in permitting the jurors to inspect the two padlocks found at the scene of the burglary by Officer Day. During the course of its deliberations the jury requested that the padlocks be sent to the jury room. Over appellant’s objection the trial court sent the padlocks to the jury as requested. Recognizing that discretion resides in the trial judge with respect to whether a jury’s request for an opportunity to see and examine exhibits offered and received into evidence should be honored, appellant contends that in this case, however, the trial court abused its discretion. The thrust of appellant’s argument is that when cross-examined by defense counsel Officer Day testified that he could not say whether the locks were cut by a hacksaw; that it was a “part of the central factual issue of appellant’s defense” how the locks were broken and the jurors were not qualified to resolve this issue in the absence of any expert evidence to aid them to that end.

We hold that there was here no abuse of the trial court’s discretion in sending these padlocks to the jury in response to a request from the jury. Despite appellant’s insistence that the manner in which the padlocks were cut required expert testimony, we are not convinced that is so. In State v. Eaton, 504 S.W.2d 12, 21[18] (Mo.1973) alleged error based upon the testimony of a police officer that a particular plier could have made the indentation marks on an aluminum door was refuted when the court said that the police officer’s testimony was not opinion evidence nor a matter requiring any special training, expertise or knowledge. Nor do we have any indication that it was the purpose of the jury to attempt to resolve any issue concerning whether the padlocks were cut by a hacksaw or some other instrument, as appellant argues.

One of the elements of this case was whether the appellant forcibly broke into the grocery store. The damaged padlocks were some evidence that there was a forcible entry. They were therefore properly sent to the jury for inspection. We also rule this point against appellant.

Appellant’s third, and final point, is that the trial court erred in refusing to submit Instructions No. A and B tendered by appellant to the jury on the grounds that they fairly presented his “theory of innocence” and the trial court failed, therefore, to instruct upon all questions of law arising in the case as required by Rule 26.02 and § 546.070 RSMo. 1969. Instruction A advised the jury that if they did not find the defendant guilty of burglary in the second degree, then they should consider whether he was guilty of attempting to steal property of a value under $50.00. Instruction B would have submitted to the jury attempted stealing of property of a value of more than $50.00. He concedes that these offenses are not lesser included offenses of burglary in the second degree, State v. Cline, 447 S.W.2d 538 (Mo. banc 1969), but he argues that he was entitled to have his “theory of innocence” presented to the jury.

Appellant’s “theory of innocence,” as we perceive it, is that he was not guilty of burglary in the second degree as charged in the Amended Information because he did not “break” into the grocery store. This theory of innocence was covered by Instruction No. 7-MAI-CR 3.08 —which was given by the trial court. Appellant here was charged with burglary in the second degree, § 560.070 RSMo. 1969; not with burglariously stealing, § 560.110 RSMo. 1969. Under § 560.070 it is an offense to forcibly enter a building in which merchandise or other valuable things are kept with the intent to steal or commit any crime therein. Under this section there can be no conviction in the absence of a breaking and entering with a specific intent to steal or commit another crime therein. The instructions tendered by appellant would have constituted misdirection of the jury because they would have submitted offenses which are not lesser included offenses of the crime charged and which were not charged in the Amended Information upon which appellant was brought to trial. We rule this point against appellant.

We have examined those portions of the record as required by Rule 28.02 and find them to be sufficient.

The judgment of the trial court is affirmed.

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

      . Although Instruction No. 7, submitted by the appellant, is identified in the transcript and by the parties to this appeal as an MAI-CR 3.08 instruction — “Converse: Multiple Elements”— it is, in fact, a modified MAI-CR 3.04 — “Converse: One Element” — pattern instruction.

      . Although neither party to this appeal presented the question whether an instruction on attempt would have been proper in this case, where there is evidence of asportation sufficient to support the completed offense of stealing, § 556.160 bars conviction of an attempt where it appears that the crime intended or the offense attempted was perpetrated. Appellant, by his own testimony, established that there was sufficient asportation of the cigarettes when he put them in the trash bags to constitute the completed offense of stealing. See: State v. Smith, 342 S.W.2d 940, 942[4] (Mo.1961), State v. Cline, 452 S.W.2d 190, 193[6] (Mo.1970).


text:
    William N. RINGEISEN, Appellant, v. INSULATION SERVICES, INC., et al., Respondents.
    No. 37147.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 15, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      Graff & Lahey, Frank J. Lahey, Jr., St. Louis, for appellant.
    Evans & Dixon, John R. Dixon, Luke, Cunliff, Wilson, Herr, Chavaux & McClug-gage, Adrian DeYong, Jr., St. Louis, for respondents.
   McMILLIAN, Judge.

Appellant, William N. Ringeisen, appeals from a judgment of the Circuit Court of the City of St. Louis, Missouri, which affirmed an award of the Labor and Industrial Relations Commission denying him benefits as respondent’s employee. We affirm the judgment of the circuit court.

Appellant is a 62-year old male who has worked approximately twenty-eight (28) years as a construction worker, primarily as a cement finisher. In September, 1970, he was hired in St. Louis through the Asbestos Workers of America as a pipe-coverer. His employment was with Insulation Services, Inc. (Insulation Services) and lasted for a total period of nine (9) days. Appellant was hired through the Asbestos Workers Union Hall again in November of 1970. His employer during this period was Owens Corning Fiber Glass Corporation (Owens Corning). Mr. Ringeisen worked for Owens Corning for a total period of approximately twenty-six (26) days. Both of these employments were terminated by lay-off. During both of these periods of employment, appellant worked with dry and wet asbestos and was exposed to asbestos dust. During January of 1972 appellant suffered from a respiratory ailment and was confined to St. Louis County Hospital for approximately three weeks. In June, 1972, appellant returned to work for two days but was unable to work further. He was confined to St. Joseph’s Hospital in July, 1972, where his condition was diagnosed as asbestosis. Appellant has not returned to work since that time.

Mr. Ringeisen filed a claim for compensation under the Workmen’s Compensation Law on December 6, 1972, seeking compensation for injury due to occupational disease. Appellant named Insulation Services, Inc., and Owens Corning Fiber Glass Corporation as the employers liable for his condition. Owens Coming and their insurer, Aetna Casualty Insurance Company, answered the claim for compensation and participated in a hearing before a referee of the Division of Workmen’s Compensation. Insulation Services neither answered the claim nor participated in the hearing.

During the hearing, appellant testified that he had not been an asbestos worker at any time other than during his employment by Insulation Services and Owens Corning. His physician’s deposition was admitted into evidence and stated that Mr. Ringeisen was suffering from asbestosis and that in the doctor’s opinion this condition was a result of inhaling asbestos fiber while an asbestos worker in 1970. On April 9,1974, the referee made an award of compensation in the amount of $23,007.73, finding the employers jointly liable for appellant’s permanent and total disability. Owens Corning and Aetna filed an application for review, only on their behalf, pursuant to § 287.480, RSMo 1969. No application for review was filed within the 20-day limit of § 287.480 on behalf of Insulation Services but the Labor and Industrial Relations Commission later granted Insulation Services leave to enter an appearance. Insulation Services participated in the review process of the commission as well as the appeal to the circuit court and the present appeal to this court.

In reviewing the award of the referee the commission found that he had no authority to make an award against either employer in the case. The difference in the conclusions reached by the referee and the commission stems from their differing interpretations of the effect of sub-sections 287.-063(4) and (5), RSMo 1969, of the Workmen’s Compensation legislation which became effective on August 29, 1959. These two sub-sections set forth the criteria for determining exposure and liability in cases of occupational diseases:

“4. An employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when for any length of time, however short, he is employed in an occupation or process in which the hazard of the disease exists.
“5. The employer liable for the compensation in this section provided shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease for which claim is made regardless of the length of time of such last exposure, except in cases of silicosis, asbestosis, loss of hearing due to industrial noise, and radiation disability, in which cases the only employer liable shall be the last employer in whose employment the employee was exposed during a period of ninety days or more to the hazard of such occupational disease, and, in such cases, an exposure during a period of less than ninety days after the effective date of this section shall be held not to be a last exposure.”

The commission concluded that sub-section (5) allows recovery only against the employer in whose employment the employee was last exposed and that in this ease neither employer met the statutory definition of “last employer” due to the brief period of time appellant worked for each employer. The statute was held to require an employment period of ninety (90) days before an employer could be liable for one of the specifically enumerated occupational diseases. The commission felt that its lack of power to make an award against either employer was a jurisdictional defect, making the award of the referee a nullity and open to either direct or collateral attack at any time. The Commission therefore held that Insulation Services was not bound by the referee’s award from which they had not made a timely appeal.

There is no disagreement between the parties as to the fact of appellant’s suffering an injury by occupational disease arising out of and in the course of his employment. Nor do the employers contend that they elected not to come under the provisions of the Workmen’s Compensation legislation concerning occupational disease. The two issues which appellant raises on his appeal are that: the circuit court erred in affirming the finding of the commission that § 287.063(5) does not provide for a compensation award against either employer in this case; and that the circuit court erred in affirming the findings of the commission that the referee was without jurisdiction to make an award against either employer, thereby rendering the award against Insulation Services void despite its failure to appear at the initial hearing or to make a timely application for review of the referee’s award as provided for in § 287.480, RSMo 1969. The issues presented are, therefore, questions of law and the findings of the commission are not binding upon this court on review. Williams v. S. N. Long Warehouse Co., 426 S.W.2d 725, 733 (Mo.App.1968) and § 287.490, RSMo 1969.

Turning to appellant’s first issue, we find no cases in this state which have construed the time limit aspects of sub-sections (4) and (5) of § 287.063. As noted earlier, appellant was not employed by either employer for a period of ninety (90) days. Sub-section (4) provides that any employment, no matter how short, in an occupation in which the hazard of occupational disease exists, shall be deemed to be an exposure to the hazard of occupational disease. It would seem clear that appellant, under sub-section (4), was exposed to the hazard of asbestosis while working for both Insulation Services and Owens Corning.

Sub-section (5) goes on to specify which employer shall be held liable for a worker injury due to occupational disease. In its first sentence this sub-section specifies that the last employer in whose employment a worker was exposed to a hazard of occupational disease shall be the employer who is liable for the compensation. Thus, sub-section (5) adopted the position which the courts of this state took prior to the enactment of § 287.063 in formulating the “rule of convenience.” White v. Scullin Steel Co., 435 S.W.2d 711 (Mo.App.1968); King v. St. Louis Steel Casting Co., 353 Mo. 400, 182 S.W.2d 560 (1944). These cases, based on the statute in force prior to the adoption of § 287.063, held that any search for positive proof of causation among several employers in cases of occupational disease was a futile search. White, supra, at 715. The courts, therefore, settled on a “rule of convenience” which generally placed liability on the last employer.

When the legislature enacted § 287.063 they adopted this “rule of convenience” but they went beyond the rule by providing more explicit liability criteria in those cases involving silicosis, asbestosis, loss of hearing due to industrial noise, and radiation disability. In cases involving these diseases the legislature provided that the only employer liable would be the last employer with whom a worker was employed for a period of ninety (90) days and with whom the worker was exposed to the hazard of one of these occupational diseases. Any exposure during a period of employment of less than ninety (90) days is not to be deemed a last exposure and the employer is not to be held liable. Stated otherwise, this sub-section provides that the only employer liable shall be the last and that an employer cannot be the last without having employed a worker for ninety (90) days and having exposed the worker to the hazard. If the employee has worked for the same employer for ninety days all that is necessary to bring him under the protection of the statute is that he have been exposed, for a period no matter how brief, to the hazard. Similar statutes have been construed in like manner in Illinois and Pennsylvania. Morris Metal Products Co. v. Industrial Commission, 370 Ill. 292, 18 N.E.2d 899 (1938) construing what is now Chapter 48, § 172.-36(d), R.S.Ill.1965; Hogg v. Kehoe-Berge Coal Co., 174 Pa.Super. 388, 101 A.2d 168 (1953) construing what is now Title 77, § 1401(g) Pa. S.

Applying sub-section (5) of the Missouri statute to the facts of the present case, it is obvious that Owens Corning does not meet the description of a “last employer” for they did not employ appellant for a period of ninety (90) days. Nor can Insulation Services be considered as a last employer, for they too did not employ appellant for a period of ninety days.

The referee, who held both employers liable, felt that such a result was not desirable. In making the award to appellant he claimed “serious doubts that the legislature intended to deprive a claimant in an O.D. (occupational disease) case of his remedy unless he had worked at least 60 (sic) days for an employer.” The referee than went on to hold both employers liable, reasoning that the claimant was suffering from an injury which could only have been incurred while he was in the employment of one of the employers. The referee based his award on what he felt was the intent of the legislature rather than on any section of the statute. While we agree that the effect of our reading of sub-section (5) is to deny any coverage to a worker claiming injury due to asbestosis who has not worked for at least one employer for at least ninety days during which time there was an exposure to the hazard, we also find that to be the clear meaning of the statute. The problem posed by the short employment history in this case is one which may require further consideration by the legislature. We therefore affirm the judgment of the circuit court as to appellant’s first issue on appeal.

Appellant’s second issue concerns the effect of the commission’s determination that it was without jurisdiction to make an award against either employer. Appellant contends that despite the reading which the commission gave to sub-section (5) the award of the referee had become final as to Insulation Services and was no longer open to attack. The statutory provision relied on by appellant is § 287.480 which provides that an application for review must be filed within 20 days of a referee’s award. This time limit has been held to be jurisdictional, having the effect of prohibiting the commission from considering untimely applications. Luketich v. Krey, 413 S.W.2d 29, 31 (Mo.App.1967); Tabb v. McGinley, 313 S.W.2d 745, 748 (Mo.App.1958). The commission took the position that the award of the referee was void on its face and open to attack at any time. Woodruff v. Tourville Quarry, Inc., 381 S.W.2d 14 (Mo.App.1964).

The concept of jurisdiction includes jurisdiction over the subject matter, over the person and also jurisdiction, or power, to act in certain ways, i. e., to make certain awards. State ex rel. Mo. Pac. R. Co. v. Moss, 531 S.W.2d 82, 84 (Mo.App.1975). The jurisdictional defect which the commission found in the present case was that the referee was without the power to make an award against either employer as they were not “last employers” under sub-section (5) of the statute.

The powers of the commission and therefore of the referee, are a creation of the legislature and its jurisdiction is to be determined from the acts of the legislature. Hogue v. Wurdack, 298 S.W.2d 492, 497 (Mo.App.1957); Soars v. Soars-Lovelace, Inc., 346 Mo. 710, 142 S.W.2d 866, 871 (1940). However, the provisions of the Workmen’s Compensation statute are to be liberally construed with a view to the public welfare, § 287.800, RSMo 1969, so that where a question of jurisdiction is in doubt, it should be held to be in favor of the commission. Hughes v. Maryland Cas. Co., 229 Mo.App. 472, 76 S.W.2d 1101, 1105 (1934).

The problem for this court’s determination is whether the award of the referee was an act so beyond his jurisdiction that it is void on its face; therefore open to attack or whether the award was the result of a mistake of law and therefore final due to Insulation Services’ failure to appear or make a timely application for review. To state that the act of the referee was one or the other is to make the conclusion which will be decisive in this case — the labels being conclusions rather than reasons. In reviewing the cases in Missouri which have made this type of determination we find little help in the way of standards to follow or factors to be considered in making this determination. The policy reasons for each view are strong. There is a strong preference in the law to avoid relitigation of issues, this policy is embodied in the doctrine of res judicata and estoppel. On the other hand, there is no place in the law for a policy which would enforce judgments made by tribunals acting without proper jurisdiction.

The general rule is that “[A] judgment is void if it was not rendered by a court with competency to render it.” The Restatement of Judgments, § 10, Comment (a.) (1942), provides: “ . . . If, however, the court has jurisdiction over the parties and decides that it has competency to render the judgment, the parties may be precluded from collaterally attacking the judgment, on the ground that the question of the competency of the court is res judica-ta between them.” To aid in making this determination of whether to allow a collateral attack, the Restatement offers the following:

. “(2) Among the factors appropriate to be considered in determining that collateral attack should be permitted are that
(a) the lack of jurisdiction over the subject matter was clear; (also applies to lack of competency)
(b) the determination as to jurisdiction depended upon a question of law rather than of fact;
(c) the court was one of limited and not of general jurisdiction;
(d) the question of jurisdiction was not actually litigated;.
(e) the policy against the court’s acting beyond its jurisdiction is strong.” (§ 10, Restatement of Judgments, 1942)

Professor Davis offers these suggestions: “Whether or not an administrative determination of jurisdiction should be res judicata is a question which cannot be simply answered, except to say that the answer is sometimes yes and sometimes no. The problem cannot be solved through the kind of narrow logic some courts have brought to it; the logical notion that action in excess of jurisdiction must always be void is just as unsatisfactory as the logical notion that every tribunal has jurisdiction to determine its own jurisdiction and that a question once litigated should not be reliti-gated. The solution must take the form not of a rule but of a catalog of the kind of factors that should guide discretion. Some of the most vital of such factors are: whether the question is one which the agency is especially well equipped to handle or whether it is one on which the court or the second agency is better qualified, whether or not the legislative scheme vests in the agency the primary or the exclusive responsibility for deciding such questions, whether the agency has carefully considered the question or has considered it hastily or obliquely or not at all, whether the parties have had full opportunity in fact as well as in theory to present their evidence and their argument or whether they were in the first proceeding insufficiently aware of the jurisdictional question, whether the jurisdictional question admits of reasonable answer either way or whether the agency clearly exceeded its jurisdiction, whether the facts or conditions on which jurisdiction depends are static or shifting, whether the equities of the whole case favor one result or another, and whether reliance upon the earlier decision should equitably estop one of the parties from challenging that decision.” § 18.07, Davis, Administrative Law Treatise.

Applying these standards to the action of the referee we find that: the lack of jurisdiction to make the award was clear from the statute; that the referee, deriving power from the legislature, has limited rather than general jurisdiction; that the determination of jurisdiction was a question of law rather than fact; that the conditions upon which jurisdiction depends are static rather than shifting and therefore better decided by this court; that the reasons given by the referee for making an award of compensation which had no basis in the statute do not indicate a complete consideration of the matter; and that the legislature has given this court the power to review such questions rather than vesting exclusive power in the commission.

Therefore, we hold that the referee’s actions which were beyond the jurisdiction of the commission were void and open to attack at any time; that the commission acted properly in overturning the award even though Insulation Services failed to make a timely application for review; and that the judgment of the circuit court affirming the decision of the commission is affirmed.

WEIER, P. J., and RENDLEN, J., concur.