text:
    Ruth Ann LEVIN, Respondent, v. SEARS, ROEBUCK AND COMPANY, Appellant.
    No. KCD 27404.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.

      Robert M. Kroenert, John W. Cowden, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, for appellant.
    Charles C. Shafer, Jr., Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

The respondent (hereafter plaintiff) brought an action for damages for personal injuries sustained as a result of a fall in the parking lot of the appellant (hereafter defendant). The case was tried before a jury and resulted in a verdict and judgment for the defendant. Plaintiff filed a motion for a new trial, which was sustained on the sole ground that the court erred in giving Instruction No. 4 on the subject of contributory negligence. This reason stems from the fact that the jury was not properly instructed as to the law that, if contributory negligence was found, it was further required that a finding be made that such contributory negligence “directly” caused the plaintiff’s damage. Defendant made no serious attempt to refute this obvious and inherent error in Instruction No. 4 as to causation, but rather, asserts that such error “if any” was immaterial and nonprejudicial, since plaintiff failed to make a submissible case of actionable negligence against the defendant and was guilty of contributory negligence as a matter of law, and that, therefore, the court erred in overruling its motion for a directed verdict and in sustaining plaintiff’s motion for a new trial. In this state of the record, the prime problem for resolution is whether plaintiff made a sub-missible case for the jury.

In passing upon the sufficiency of plaintiff’s evidence, an appellate court must always recognize and apply certain well-articulated rules and well-defined criteria. Such court must indulge the presumption that the plaintiff’s evidence is true, disregard defendant’s evidence in conflict therewith, and give the plaintiff every reasonable favorable inference to be drawn from all the evidence. But these rules and criteria do not go so far as to permit the appellate court to disregard the dictates of common reason and to accept as correct or true that which obviously under all the circumstances in evidence cannot be correct or true; nor to give plaintiff the benefit of any other than reasonable inferences. Hill v. Illinois Terminal Co., 100 S.W.2d 40, 47[4] (Mo.App.1937). See also, Wilkins v. Allied Stores of Missouri, 308 S.W.2d 623, 629[4] (Mo.1958).

The application of general rules of appellate review are further restricted by other precautionary exceptions. The plaintiff is bound by his own testimony; may not have the benefit of or resort to the support of evidence inconsistent with such testimony, and conceded facts may not be disregarded. Neal v. Kansas City Public Service Co., 353 Mo. 779, 184 S.W.2d 441, 442[1, 2] (1944). The court may not supply missing evidence, give the plaintiff the benefit of unreasonable, speculative or forced inferences, or consider only isolated parts of the plaintiff’s evidence. Merriman v. Johnson, 496 S.W.2d 326, 330[1] (Mo.App.1973); Economy Gas Co. v. Bradley, 472 S.W.2d 878, 880[2] (Mo.App.1971); Adler v. Laclede Gas Co., 414 S.W.2d 304, 306[1] (Mo.1967).

The plaintiff in the case at bar submitted her case upon a single theory of actionable negligence, as set forth in her verdict directing Instruction No. 3, which is as follows:

“Your verdict must be for the plaintiff if you believe:
First, the area of defendant’s second parking level where plaintiff was walking was inadequately lighted and as a result the area was not reasonably safe for customers, and
Second, plaintiff did not know 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 provide adequate lighting, and
Fifth, as a direct result of such failure, plaintiff was injured unless you believe plaintiff is not entitled to recover by reason of Instruction No. 4.” (Emphasis supplied)

Under the above-noted requirements of review and the issue presented by the plaintiff’s instruction above quoted, a somewhat detailed summary of the evidence is required. Initially, it should be noted that there is no dispute that the status of plaintiff was that of a business invitee upon nor that the defendant was the “possessor” of, the place where plaintiff fell.

On January 9, 1971, the defendant operated a retail store in the Country Club Plaza, Kansas City, Missouri. In connection with this store, it maintained a three-level, open air, column supported parking facility for its customers across the street from the store. Access to the store was afforded by an enclosed ramp or walkway at the top (third) level of the parking facility passing over a public street. Access to the ramp for customers parking on the middle level was by means of an enclosed stairway. Entry to the stairway from the actual parking surface was by means of a concrete sidewalk about four feet in width and raised about four inches above the parking surface, constructed within but immediately adjacent to the outside walls, thence through a fire door and into the stairwell. Aside from the natural light through the open sides of the facility, there were a number of fluorescent lights hung from the ceiling and spaced at intervals on the second level. Two of these were immediately outside the door to the stairwell, at which point there was also an illuminated sign, “To Store”, guiding customers to the stairwell.

Between 9:30 and 10:00 o’clock a. m. on Saturday, January 9, 1971, Leo Levin drove his mother, the plaintiff, an elderly lady, to the defendant’s store to shop for a television set. He parked his vehicle in the middle level of the parking facility, escorted his mother across the parking surface to the sidewalk, along the sidewalk to the access door, to the stairway, and thence to the third level, across the ramp or walkway, and into the store. Nothing untoward occurred during this walk into the store; no dangerous conditions or absence of light was noted by the plaintiff or her son.

The plaintiff purchased a television set and she and her son then proceeded by means of the ramp and stairway back to the middle level parking area. They were in the store about 20 to 30 minutes and at about 10:30 o’clock a. m. they arrived back at the door from the stairwell. They passed through the door side-by-side directly across the four-foot sidewalk and about four feet or more- across the parking surface when the plaintiff fell. The son testified that the “first thing I noticed that my mother was out of the grasp of my arm; and she laid on the surface of the parking lot area”. Neither Leo Levin nor the plaintiff had noticed any foreign substance on the parking surface before the plaintiff fell.

The son testified that when he got his mother to her feet, he noticed a “glob” on the surface which was “probably phlegm”. He didn’t know what the “glob” was, but it was wet and did not look like it had been stepped in or disturbed. He observed no moisture “or anything” on his mother’s shoes.

Leo Levin testified that it was cloudy on the day of the fall and that the location of the fall did not receive much natural illumination. He stated that after his mother’s fall, he, for the first time, noticed that the two fluorescent lights immediately over the door to the stairwell were not on; that he did not know how long they had been out; and that he had no trouble seeing the “glob” when he got his mother to her feet.

The plaintiff testified that she had no difficulty with her walking. She stated that she made no specific observation of the lighting fixtures, but that some were lighted and some were not. There was a contrast in the amount of light in the brightly lighted store interior and the parking lot. This appears in her testimony:

“Q. Now, you mentioned that it was not bright in there, but you certainly— you could see, couldn’t you?
A. Oh sure; I could see.” (Emphasis supplied)
Her version of the fall is thus revealed:
“Q. And as you walked through this door proceeding to the parking station, generally where were you looking?
A. Well, I can’t say I was looking at anything, I was so enthused over the television; we were just talking about it and walking along.
Q. Did you walk along, by any chance, looking down to see where you were going?
A. No; my son had ahold of my arm. We were just walking along until I just flopped.” (Emphasis supplied)

The plaintiff testified and her counsel stipulated in the record that before her fall,she “did not look down”. The following then appears from plaintiff’s testimony:

“Q. Isn’t it also true that prior to your fall, after you came out through those doors into the parking area, that you were not looking to see if there was anything on the blacktop; isn’t that true?
A. I wasn’t looking.
Q. And you were not looking to see if there was anything on the blacktop?
A. No.” (Emphasis supplied)

After her fall, she observed a grayish substance on the surface and while she had no difficulty seeing it, she did not know how long it had been there. When she got in her son’s vehicle after the fall, she noticed a substance on the sole of her shoe which was black and wet. She could not tell if the “glob” had been stepped in but reached that conclusion because her shoe was wet.

The relationship of the parties at the time of plaintiff’s fall was that of the possessor of land and invitee. The liability of the possessor (defendant) to its invitee (plaintiff) is generally declared in Restatement, Torts 2nd, Section 343, in the following terms:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.” (Emphasis supplied)

It has been declared that the doctrine thus stated “together with all of its technicalities is firmly embedded in the jurisprudence of this jurisdiction”, Dean v. Safeway Stores, Inc., 300 S.W.2d 431, 432 (Mo.1957). See also, Devine v. Kroger Grocery and Baking Co., 349 Mo. 621, 162 S.W.2d 813, 818[8] (1942).

As has heretofore been noted, the plaintiff relied upon and submitted only one ground of negligence, namely, the failure of the defendant to adequately light the parking lot where she fell. As was pointed out by the court in Dean v. Safeway Stores, Inc., supra, in most, if not all, of the cases prior to Dean involving the charge of lack of or insufficient lighting involved some other condition creating a hazardous or dangerous condition. In Dean, the plaintiff fell on a wire banana crate handle in an unlighted grocery store parking lot. The court in Dean commented that “As a sole or independent act of negligence failure to illuminate has received but little attention in either the cases or the textbooks.” Dean v. Safeway Stores, Inc., supra, 300 S.W.2d at l. c. 433. The court, however, held that the plaintiff had made a submissible case of negligence upon the showing that the defendant failed to turn on the parking lot lights, as was customary before dusk, and that therefore the area was dark, although there was no evidence that the defendant had actual or constructive notice of the presence of the wire handle on the parking surface, the direct cause of plaintiff’s fall.

In so holding, the Dean court followed and applied the rule expressed in Petera v. Railway Exchange Bldg., 42 S.W.2d 947 (Mo.App.1931). In Petera, the plaintiff, an employee of a tenant of defendant, and thus an invitee, fell in an unlighted building corridor shortly before 8:00 a. m. while en route to her place of employment. She slipped on a soapy substance on the corridor floor. The evidence showed that the corridor lights were supposed to burn day and night, and that at 6:00 a. m. each morning it was the duty of a janitor to check to see that the lights were on, and to replace any burned out bulbs. The defendant’s liability was submitted to the jury upon a disjunctive hypothesis of a finding of either the known presence of the soapy substance or failure to have the corridor lighted. The court said in Petera (a statement of law adopted and applied in Dean), 42 S.W.2d, l. c. 950t7]:

“Similarly, if due care on the part of defendant required that the lights be burning at the time, as the evidence tends to show, if they had been turned off for a sufficient length of time that defendant might have learned of the fact, and have turned them on, all of which is to be inferred from the testimony, and if the insufficiency of the light caused plaintiff to step upon the soap, and to fall, then defendant might be held to respond in damages, irrespective of whether negligence is to be imputed to it by reason of the presence of the soap upon the floor.” (Emphasis supplied)

While these authorities would authorize the submission by this plaintiff of the sole charge of negligence based upon inadequate lighting, without regard to any liability which might be imputed to the defendant by reason of the phlegm or “glob” upon the parking surface, it was incumbent upon her to show either actual or constructive notice to the defendant of the danger incident to the inadequate lighting. The essence of liability of an owner or possessor of premises to his invitee is based upon superior knowledge of the danger arising from actual or constructive notice thereof. Cunningham v. Bellerive Hotel, Inc., 490 S.W.2d 104, 107[2] (Mo.1973); Gilpin v. Gerbes Supermarket, Inc., 446 S.W.2d 615, 618[2] (Mo. banc 1969); Brown v. Kroger Co., 344 S.W.2d 80, 83[4] (Mo.1961); Trabue v. Fields, 433 S.W.2d 48, 50 (Mo.App.1968).

In this case, the evidence does not in any way disclose any fact, directly or by permissible inference, upon which it could be found that the defendant had either actual or constructive notice of the fact that the two lights were not burning, in time to have replaced them or warned the plaintiff, a necessary prerequisite for recovery under the legal principles above stated. No attempt was made to show that the defendant had actual notice. The testimony of the plaintiff and her son is silent as to whether these lights were burning or not when they passed directly under them some 30 minutes before her fall. The son testified that he noticed that the lights were out after his mother’s fall.

A case strikingly similar on this point is Hopkins v. Sefton Fibre Can Company, 390 S.W.2d 907 (Mo.App.1965). There, the plaintiff-invitee was injured in a parking lot by falling over a railroad-like tie divider used to separate parking areas. This fall occurred at night, in the rain. The lot was ordinarily illuminated by four large floodlights burning 1000-watt bulbs. The plaintiff testified that after her fall, she noticed that two of the lights were not burning. In passing upon the submissibility of plaintiff’s claim of negligence based upon the alleged inadequate lighting, the court said, 390 S.W.2d, 1. c. 911[3, 4]:

“ * * * The fact of the matter is that there was absolutely no evidence introduced to show how long the two floodlights had been out before plaintiff fell. It is a matter of common knowledge that electric light bulbs burn out from time to time and it is virtually impossible to know in advance when such a failure will occur. For all that plaintiff’s evidence showed, the non-functioning floodlights may have burned out only a few minutes before plaintiff fell. In any event, plaintiff’s evidence was insufficient to show that the condition existed for a length of time sufficient to charge the defendant with constructive knowledge, and plaintiff therefore failed to make a submissi-ble case on her first predicate of negligence.” (Emphasis supplied)

For this fatal deficiency in plaintiff’s proof in the case at bar, the defendant’s motion for a directed verdict should have been sustained.

There is an additional reason why the verdict should have been directed for the defendant. Again, accepting the plaintiff’s evidence as true, disregarding all of defendant’s evidence contrary thereto, and allowing her all reasonable inferences to be drawn from all the evidence, the plaintiff failed to establish any causal connection between her fall and the asserted inadequate lighting. It is well-established that in order to make a submissible case in any action based on negligence, it must be demonstrated that the negligence is the proximate cause of the injury complained of and the test to be applied is “whether, absent the negligent act, the injury or damage would not have been sustained.” This connection need not be shown by direct evidence if the “facts proved are of such nature and so connected and related that the conclusion of causal connection may be fairly inferred * * * ” Joiner v. Kurt’s Chip-a-Way Park, Inc., 510 S.W.2d 773, 775[3, 4] (Mo.App.1974); James v. Sunshine Biscuits, Inc., 402 S.W.2d 364, 375[3] (Mo.1966); King v. Ellis, 359 S.W.2d 685, 688[2] (Mo.1962); Penberthy v. Penberthy, 505 S.W.2d 122, 127[5] (Mo.App.1973).

In the first place, the evidence showed by the plaintiff’s own testimony, as above set forth, that as she stepped down from the entranceway platform to the parking level, she was not looking down; she couldn’t say she was looking at anything; she and her son were “just talking” and “walking along”; and even though it was not bright, she could see. After the fall and after her son helped her to her feet, both of them, from a standing position, had no difficulty seeing the “glob” of phlegm on the surface. The conclusion is inevitable that the lighting failure of the two fixtures had no direct, causal or proximate connection with her fall. Stated conversely, under her own testimony, no amount of artificial light would have prevented the fall.

In connection with this, the evidence was wholly insufficient to establish as a fact, or by reasonable inference, that had the two lights been on, the visibility or light conditions at the place of plaintiff’s fall would have been altered. The photographic exhibits clearly establish that the purpose of these particular lights was to illuminate the four-foot wide walkway immediately in front of the door into the store. Plaintiff had passed across this area without incident and had walked several feet across the parking surface when she fell. Additionally, the same exhibits clearly show that the second level of the parking facility was mostly open to the natural light, and although the plaintiff’s son testified the morning was cloudy and the plaintiff described it as partially so, the Local Climatological Data, officially certified and admitted without objection and by agreement, showed that there were 9.6 hours of sunshine on the day in question.

The defendant’s motion for a directed verdict should have been sustained for the additional reason that the evidence failed to show any causal connection between the negligence charged and the plaintiff’s damage.

By reason of the conclusion reached, it becomes unnecessary to consider the defendant’s further point, that the plaintiff was guilty of contributory negligence as a matter of law. Likewise, since plaintiff failed to make a submissible case, any error in Instruction No. 4 becomes immaterial and the trial court erred in granting plaintiff a new trial for that reason.

The order granting plaintiff a new trial is therefore reversed and set aside, and the cause remanded with directions to enter judgment for the defendant.

All concur.


source: Caselaw Access Project

author: PRITCHARD, Chief Judge.

license: Public Domain

text:
    H. Sam CLARK, Appellant, v. FRANCIS B. FREEMAN CONSTRUCTION COMPANY, INC., and Francis B. Freeman, Respondents.
    No. KCD 27416.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.

      M. Sperry Hickman, Independence, for appellant; M. Sperry Hickman, Inc., Independence, of counsel.
    Joseph W. Amick, Kansas City, for respondents; Welch & Austin, Kansas City, of counsel.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

This is a civil action for contempt of a restraining order in which the trial court’s judgment was in favor of the defendant and the agents of the defendant corporation and against the plaintiff. Plaintiff’s sole point on this appeal is as follows: “The court erred in holding that plaintiff failed to sustain the burden of proof and that defendants were not guilty of contempt of the restraining order dated May 21, 1973, because there was clear and convincing evidence that the restraining order was violated when Joe Freeman, officer and agent of defendants admitted that he transferred in July of 1973, the title of two pieces of equipment to F. B. & F. Construction Company which was a date after the restraining order was issued. The evidence further showed that the vehicles in question, as well as others, were licensed in Alabama and Texas, and that these vehicles were observed in the state of Alabama after the date of the restraining order issued May 21, 1973, and that defendants and each of them violated the court order in interfering with plaintiff’s right to peaceful possession of the vehicles and equipment listed on the restraining order.”

This cause of action was commenced in the circuit court of Cass County, Missouri, by the filing of a petition in equity seeking specific performance of a contract between plaintiff, H. Sam Clark, against defendants, Francis B. Freeman Construction Company, a Missouri corporation, and Francis B. Freeman, the defendants later taking a change of venue to the circuit court of Johnson County, Missouri. The petition was based upon allegations that plaintiff purchased from defendants a large number of items of construction equipment which were unique chattels in that, as a whole, they comprised a construction unit, fitted to the particular purpose of laying underground telephone cable. The petition further sought injunc-tive relief against defendants asking that they, the defendants, and their agents and servants be restrained and enjoined from “selling or otherwise disposing or encumbering the items described in this petition as located in Missouri, Oklahoma, and Texas, or otherwise interfering with plaintiff’s peaceful possession of said equipment and vehicles.” Thereafter, on the 21st day of May, 1973, the court issued its temporary restraining order as per plaintiff’s prayer. In the order the court restrained the defendants from selling, encumbering, disposing or interfering with plaintiff’s possession of the equipment listed therein.

Thereafter, on the 9th day of April, 1974, there was filed a petition for order to show cause why defendants and their agents should not be punished for contempt for violating temporary restraining order. Said petition alleged specifically that defendants, and their agents, Francis B. Freeman, Joe Freeman and Willous Bevins did violate the temporary restraining order in “that they have sold or otherwise disposed of some of said equipment and vehicles, particularly: 1970 Ford ¾ Ton Pickup F25 YKH92165, and 1974 Ford ¾ Ton Pickup F25YKN68206, as well as other equipment.”

Thereafter, on April 15, 1974, there was filed a citation for contempt, commanding Francis B. Freeman Construction Company, Inc., a Missouri corporation, Francis B. Freeman, Joe Freeman, and Willous Bevins to show cause on May 20, 1974, at 9:30 a. m., why they should not be adjudged in contempt for an alleged violation of the temporary restraining order rendered on May 21, 1973.

The following evidence was adduced at the May 20 hearing. Francis B. Freeman and Joe Freeman are president and vice president respectively, of the Francis B. Freeman Construction Company. Francis B. Freeman, Willous Bevins and Joe Freeman are also officers and shareholders in the F.B. & F. Construction Company, Inc. F.B. & F. Construction Company was the general contractor for the Alabama State Telephone Company which is a member of the Continental Telephone System. The evidence showed that some equipment of the Francis B. Freeman Construction Company was in use by the F.B. & F. Construction Company. F.B. & F. paints its equipment white and places its “logo” [meaning sign] on it. Some of the Freeman Construction Company equipment was painted white and the F.B. & F. logo put on it for purposes of uniformity. The telephone company wanted F.B. & F. equipment to be uniform in appearance. Certain equipment, such as back hoes, trenchers, cable plows, and vibrator plows were not painted white but remained the original yellow Freeman col- or. At the time of trial, Freeman Construction Company did not have any work in progress. F.B. & F.’s work was all in the general vicinity of the state of Alabama and F.B. & F. Construction Company is currently using ten or twelve pieces of equipment owned by Freeman Construction Company. There was no attempt to sell any of the items of equipment owned by Freeman, nor, so far as Joe Freeman knew, was there any mortgage on any of the equipment.

Concerning the two Ford pickups on which the certificates of title were actually transferred from Freeman Construction Company to F.B. & F. Construction Company, the reason for the transfer of title was to avoid a licensing problem. The titles were originally transferred in July of 1973, and they were transferred back to Freeman Construction Company on April 20, 1974, on the advice of their attorney. Other than the two pickup trucks, no other equipment was transferred. There has not been any sale, gift or transfer of any other rolling or non-rolling stock of Freeman Construction Company. On May 28, 1974, judgment was filed in part as follows: “That the plaintiff has failed to sustain the burden of proof necessary for this Court to hold that the defendants are guilty of contempt of the Court’s order dated May 21, 1973 . That they each should be discharged.” It is from this judgment that the plaintiff appeals.

It is the rule in Missouri that the trial court’s judgment in a contempt action will not be disturbed unless its discretion has been grossly abused. St. Louis Sanitary Landfill Company v. Scott, 274 S.W.2d 585 (Mo.App.1955); Fiedler v. Bambrick Bros. Construction Co., 162 Mo.App. 528, 142 S.W. 1111 (1912); 17 C.J.S. Contempt § 124(5), p. 343. A review of the record shows no such abuse of discretion in the instant case. The trial court could properly find that the retransfer of title on the two Ford Pickups back to Freeman Construction Company was the sufficient purging of the contempt inherent in the original transfer. See 17 C.J.S. Contempt § 105, p. 289; see also Hoffmeister v. Tod, 349 S.W.2d 5 (Mo. banc 1961); McMullin v. Sulgrove, 459 S.W.2d 383 (Mo. banc 1970); Willett v. Tichenor, 220 S.W. 709 (Mo.App.1920). The trial court could also reasonably find that there was no prohibition in the temporary restraining order that defendants could not use the equipment in their possession or allow others to use certain equipment. Thus, the use of certain Freeman Construction Company equipment by the F.B. & F. Construction Company did not amount to a violation of the temporary restraining order. No abuse of discretion having been shown, the judgment of the trial court is affirmed.

All concur.


author: TURNAGE, Presiding Judge.

text:
    In re the MARRIAGE OF B. K. S., Appellant, and D. D. S., Respondent.
    No. KCD 27497.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    Roy W. Brown, Kansas City, for appellant.
    David M. Swiss, Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

The wife filed a petition for dissolution of marriage and the husband filed a cross petition for dissolution. Each party requested custody of the two minor children and distribution of the marital property. The court granted a dissolution of the marriage, ordered custody of the children to the husband and awarded the family home and certain other property to the husband and some property to the wife.

On this appeal the wife contends the court erred in awarding custody of the children to the husband and in granting the family home to him. The judgment is affirmed.

The wife contends the evidence was insufficient to support the judgment awarding custody of the minor children to the husband. The evidence would justify the trial court in finding that prior to the separation of the parties, the wife neglected the children, a girl six and a boy three. There was testimony from neighbors the girl habitually ate breakfast at the neighbor’s home because her mother did not prepare any. There were also many days when the mother did not send the girl to school. The neighbors also testified that prior to the time he was able to walk, the boy was allowed to play in the street unsupervised. Testimony also indicated both children frequently played in the street and cars had to honk to get them to move.

Two particular incidents of neglect occurred when the wife left both children out of doors with the door locked so the children could not get inside. The first time this occurred the weather was wet and cold and the boy was wearing only a Pamper and the girl only underpants and undershirt. The two children appeared at a neighbor’s house and were fed breakfast after which the neighbor had to leave and she told the children to return home. When she returned herself about an hour later, the neighbor observed the children were still outside.

On the second occasion, the boy was outside wearing only a Pamper, even though it was very cold, and the boy’s family dog kept knocking him down. A neighbor observed the boy outside with the dog knocking him down for two and one-half hours. The child knocked on the door of his home trying to get inside but could neither get in nor did anyone answer the door. The neighbor stated she called the boy’s home to see if anyone was home, and the mother answered. The neighbor hung up thinking the mother would hear the child crying and trying to get inside. However, she stated the child was not let inside so the child finally went to sleep on the back porch.

On the separation of the parties, the wife took the two children and moved to the home of a friend who was divorced and who had custody of her four children. The two women worked at the same place and arranged for the friend’s older daughter and son to watch the younger children in question here.

The mother of the older boy, who was to watch over the children in this case, admitted her son had been treated at one time for an overdose of anti-depressant drugs.

The wife produced an employee of the County Welfare Office who made an investigation of the children after the wife had moved to the home of a friend. The Welfare worker found the children to be well dressed and clean and apparently well cared for.

The wife states the evidence does not show neglect after the separation, therefore, custody should have gone to her. However, the court was not confined to the quality of care after the separation, but properly considered all the evidence of her care.

In this review, this court is obligated to review the evidence and make its own findings of fact. However, it has been stated: “[t]he trial court’s findings on the matter of custody are not to be lightly cast aside and we will defer to those findings unless we are firmly convinced that the welfare of these children requires some other disposition.” Johnson v. Johnson, 526 S.W.2d 33, 36[6] (Mo.App.1975).

It has also been stated that “[t]he overriding consideration in determining child custody under the new law as well as the old, is the best interest of the child.” In re Marriage of Powers, 527 S.W.2d 949, 952 (Mo.App.1975).

Bearing the above well established rules in mind, this court has concluded the finding of the trial court that the best interest of the children requires their custody be given to the father is correct, given the evidence of neglect on the part of the mother. After a careful review of the evidence, this court is unable to find the welfare of the children requires some other disposition.

The wife contends the court erred in awarding the family home to the husband. Both parties filed a detailed statement of their own financial status. The parties agree the family home had a market value of $17,000 with an encumbrance of $14,000. The parties exhibited a complete accord as to the financial status of each and the statements filed reveal no difference in either the property involved or its value. The husband had take-home pay of $600 per month with total liabilities of about $1,900, and monthly payments of about $311. The wife was employed with take-home pay of $358 per month. She had removed personal property from the family home valued at $1,000, and had left household items valued at $250 there. The wife had a $600 savings account with no outstanding indebtedness.

The court awarded the 1971 Pontiac, the family home, and the personal property left therein, to the husband. The court awarded to the wife the personal property taken by her and her $600 savings account. The wife relies on a statement in Coffey v. Coffey, 485 S.W.2d 167 (Mo.App.1972) in which it was stated it would be unjust to permit either of the parties to walk away from a stricken marriage with all of the assets which their joint efforts had accumulated. That case is not applicable because this court was there speaking about the obligation of one spouse to account for property owned as tenants by the entirety which had been removed or appropriated. Further that case was decided prior to The Dissolution of Marriage Act under which the case at bar was decided.

Under Section 452.330, Laws 1973, ¶ 470, § 7, the court is required to divide marital property in such proportions as the court deems just after considering all relevant factors including those enumerated in that Section. It is obvious this does not require an equal division of the property, but rather requires the court to make a just division. This is borne out in In re Marriage of Powers, supra, in which it is stated: “It is not necessary that there be parity in the division of marital property.” 527 S.W.2d 949, 957.

In reviewing the division of marital property under Rule 73.01, ¶ 3(a), this court reviews the case as in suits of an equitable nature. This has been held by this court to mean this court gives due deference to the findings and conclusions of the trial chancellor, and that this rule of deference is not to be ignored unless the evidence is insufficient to sustain the findings. See R. L. S. v. J. E. S., 522 S.W.2d 5, 7 (Mo.App.1975).

It cannot be said the evidence is insufficient to support the finding of the trial court in the division of property it made. This is particularly true in view of the fact one of the considerations the statute requires the court to weigh is the desirability of awarding the family home to the spouse having custody of the children. Here the husband was awarded the custody of the children and that was a proper circumstance for the court to consider in awarding the family home to him.

The wife only complains of the division of property with respect to the family home, but it is necessary to consider the entire economic situation of the parties to review the division which the court made. Here the husband actually received slightly more in net value of property than the wife. In considering the total situation, including the factors required by the statute to be taken into consideration, the finding of the trial court finds ample support in the evidence.

The judgment is affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Marvin Junior CARTER, Appellant.
    No. KCD 27535.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    Michael L. Midyett, Keytesville, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, 33.

   SHANGLER, Presiding Judge.

The defendant was involved in a traffic accident on December 16, 1972, in Linn County, Missouri. As a result, he was charged with the operation of a motor vehicle while in an intoxicated condition, third offense [§§ 304.010 and 564.440, RSMo 1969] and also for careless and imprudent driving for failure to yield the right of way.

The defendant was convicted by the magistrate on the careless and imprudent driving charge and thereafter trial commenced in the circuit court on the driving while intoxicated charge. The defendant moved dismissal of the charge in the circuit court on the claim that the accusation of the information placed him in jeopardy twice for the same offense, in that the charge of driving a motor vehicle while intoxicated was the same transaction for which he had already been convicted by the magistrate.

The claim of double jeopardy was rejected by the circuit court; the jury found the defendant guilty, and a sentence of five years imposed.

The transaction which gave rise to both convictions was witnessed by Highway Patrol Trooper Turner. He saw the automobile operated by the defendant run through a yield sign at an intersection into the side of the truck. When the trooper came to the assistance of the defendant, he found that the defendant needed to be steadied as he was helped from the car. His clothes were tousled and his breath was heavy with the odor of alcohol, and he staggered as he walked. The trooper concluded the defendant was intoxicated. The breathalyzer test indicated a “twenty-four hundredths of one per cent blood alcohol”. The trooper issued two citations to the defendant: one for driving in a careless and imprudent manner for failure to yield the right of way; and the other for driving while intoxicated.

On this appeal the defendant contends that the conviction for operation of a motor vehicle while intoxicated infringes his constitutional right against a second punishment for the same offense. The trial motion for dismissal was on the essential contention that the second prosecution [for driving while intoxicated] was barred by the first conviction [for failure to yield] because both arose out of the same transaction. On this appeal, the contention assumes a different aspect: the defendant argues here that the State has prosecuted the defendant for two separate parts of a single crime, and has thereby subjected him to multiple punishment for the same offense in violation of the constitutional prohibition against double jeopardy.

In the determination of double jeopardy, Missouri does not follow the same transaction rule, but applies the separate or several offense rule. State v. Bowles, 360 S.W.2d 706, 707[1] (Mo.1962). This means that a defendant can be charged with and convicted of several offenses which arise from the same transaction, incident or set of facts, without violation of double jeopardy. State v. Moton, 476 S.W.2d 785, 788[3, 4] (Mo.1972). Indeed, the very same act can support multiple convictions without infringement of double jeopardy so. long as the convictions rest on separate offenses. State v. Whitley, 382 S.W.2d 665, 666[2, 3] (Mo.1964).

The double jeopardy doctrine is directed to the identity of the offense, and not to the act. State v. Toombs, 326 Mo. 981, 34 S.W.2d 61, 64[3] (1930). It forbids the State from piecemeal prosecution of an offense. In the determination of whether several charges from one act or transaction are identical, our courts look to “whether each offense necessitates proof of an essential fact or element not required by the other”; if so, there is no identity of offense. State v. Chambers, 524 S.W.2d 826, 829[1, 2] (Mo. banc 1975). Thus, in State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970), the court held that a defendant could not be convicted of both assault with intent to maim without malice, and attempted robbery “while armed with a deadly weapon, to wit, a butcher knife”, because the act toward the commission of the attempted robbery was identical in law and fact with the offense underlying the assault charge. See also, State v. Parsons, 513 S.W.2d 430 (Mo.1974).

We apply these principles to the case at hand and conclude that the condition of intoxication was not an incident of the proof of the magistrate conviction for failure to yield the right of way. On the other hand, the defendant was subject to lawful conviction for failure to yield even though done with utter sobriety. The circuit court prosecution was lawful and the conviction must stand. See, State v. Johnson, Missouri Court of Appeals, St. Louis District, 532 S.W.2d 883, adopted January 13, 1976.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Roy MORROW, Appellant.
    No. KCD 27605.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    Lane Harlan, Boonville, for appellant.
    John C. Danforth, Atty. Gen., Christopher R. Brewster, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The defendant was convicted of the sale of the controlled substance marihuana in violation of § 195.017, RSMo Laws of 1971, and was sentenced to a term of ten years.

The sale of a controlled substance is prohibited by § 195.020, RSMo Laws of 1971, except as authorized by § 195.010 to § 195-320. Marihuana is listed as a controlled substance in § 195.017(2)(4)(j). The defendant was convicted of the sale of marihuana under the statutory definition of § 195.-010(20), RSMo Laws of 1971:

“Marihuana” means all parts of the plant Cannabis Sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.

The appeal poses the question of the meaning intended by the Legislature for marihuana. The defendant contends that this definition prohibits only Cannabis Sati-va L., only one of several species of cannabis, thus the burden befell the State to prove that he sold the sativa species of cannabis. The contention continues: since the statute controls over Cannabis Sativa L., the botanical identity of the species actually sold by the defendant was an issue of fact, and thus the rejection of the defense offer of proof that the scientific community recognizes other species of cannabis than sativa was error.

The prosecution undertook to prove that the substance sold by the defendant was marihuana by the testimony of two qualified experts. Dr. James R. Vogt, a chemist, subjected the substance to three tests; the first microscopic, revealed cystol-ithic hairs indicative of marihuana. The second, the Modified Duquenois test, disclosed the presence of tetrahydrocannabinol [THC], which is the principal psychic ingredient of marihuana. The third test, a thin-layer chromatography, revealed the characteristic color spots of marihuana. The results of these tests proved to Dr. Vogt that the substance under examination was marihuana.

The testimony of Dr. Steve Morris, senior research chemist at the University of Missouri, followed. He had participated in the tests made by Dr. Vogt and he, too, concluded that the substance subjected to analysis contained the plant material marihuana. It was his conclusion that there was no other plant or vegetable substance which would yield the same results in the combined tests.

It was the sense of these prosecution witnesses [neither of whom was a botanist or taxonomist] that virtually all people believe that there is only one species of the marihuana plant. It was the sense of the offer of proof attempted by Dr. Klein for the defendant, that the science of botany recognizes at least three species of cannabis. [All the witnesses agreed that tetrahy-drocannabinol [THC] is the hallucinogenic component of all cannabis]. As we have indicated, the contention here is that whether cannabis is a monotype [a genus of a single species] or a polytype [a genus of more than one species] determines the meaning to be accorded marihuana in the statutes which control that substance and, concomitantly, the burden of proof expected of the State for a proper conviction.

The meaning to be accorded a statute is for the court and not the dialectic of experts. It is always an issue of law for the judge and not one of fact for the jury. State v. Carter, 475 S.W.2d 85, 90[4] (Mo.1972). The question is not what the scientific community understands the definition of marihuana in § 195.010(20) to mean, but what the Legislature intended by that enactment.

,In State v. Allison, 466 S.W.2d 712 (Mo. 1971) the defendant contended there was no statutory authority for seizure under warrant which designated marihuana as the object of the search under a statute which declared cannabis to be an unlawful drug. In response to the contention that under the statutory definition marihuana was not synonymous with cannabis, the Supreme Court said [1. c. 715]:

Looking, again, to a botanical reference— Vol. 2, New Britton & Brown Illustrated Flora, p. 54 — we find that cannabis is a monotypic genus, i. e., a genus with only one species. Cannabis has the common name of marijuana . . [W]e conclude as a matter of law that marijuana is identical with cannabis . . .”

The court concluded that the search warrant properly issued for the unlawful possession of the narcotic drug cannabis.

The defendant argues, however, that Allison was decided under the statutory definition [§ 195.010(5), RSMo 1969]: “ ‘Cannabis’ includes all parts of the plant Cannabis Sativa L. . ”, while the statute under which he was convicted [§ 195.010(20), RSMo Laws of 1971] defines the substance: “ ‘Marihuana’ means all parts of the plant Cannabis Sativa L. . . .” [Both emphases added.] It is also true, as the defendant offered to prove, that a recent body of scientific opinion regards cannabis as a polytype which includes species other than sativa.

The definition of marihuana upon which the conviction stands is a component of the Uniform Controlled Substances Act [§§ 195.010 through 195.320] adopted by our Legislature in 1971 to supplant the predecessor Uniform Narcotic Drug Act. It was the purpose of the Uniform Controlled Substances Act to establish a coordinated and codified system of drug control between the laws of the United States and the several States, to include classifications and definitions of narcotics, as a control of the burgeoning drug abuse. [Uniform Controlled Substances Act, Commissioners’ Prefatory Note.] As a means to that end, the Act [including the Missouri version] adopts the essential provisions of the federal Comprehensive Drug Abuse Prevention and Control Act of 1970 [21 U.S.C.A. § 801 et seq.] and includes the exact definition of marihuana found in the congressional enactment. That definition, in turn, was taken from the Marihuana Tax Act of 1937 [26 U.S.C.A. § 4761].

We may be guided, therefore, by the decisions of the federal courts as to what Congress intended by the legislation as well as by the courts of other jurisdictions which have construed provisions of the Uniform Act identical to those Missouri has adopted. State v. Anderson, 515 S.W.2d 534, 539[4] (Mo. banc 1974).

The eight federal circuits which have considered the question are of unanimous opinion that the Congress treated cannabis sativa as a synonym for marihuana or any other name by which the cannabis plant might be known. That a scientific view has since emerged which challenges the premise upon which the statute stands cannot affect the intention of the lawmaker.

The congressional enactment was on information that there was only one species of marihuana. Congress was told during the hearings on the 1970 Drug Abuse Control Amendments that cannabis is a mono-type and that all marihuana is derived from the plant Cannabis Sativa L. There is no indication that Congress had any contrary information. United States v. Walton, 168 U.S.App.D.C. 305, 514 F.2d 201, 203[2] (1975). The ardent debate of scientists which now suggests another view is irrelevant to the legislative intent discerned from the enactment itself. “We are persuaded that Congress adopted ‘Cannabis sativa L.’ believing it to be the term that scientists used to embrace all marihuana-producing Cannabis; the other named sorts were not seen as separate Cannabis species. . The issue is not whether marihuana is mo-notypic or polytypic but what Congress meant when it used the term ‘Cannabis sativa L.’.” United States v. Honneus, 508 F.2d 566, 575 (1st Cir. 1975).

We decide the issue before us by a parity of reasoning. When our Legislature adopted the Uniform Controlled Substances Act in 1971, the established scientific view regarded cannabis' as a monotype. See, Gassady v. Wheeler, 224 N.W.2d 649, 654[8] (Iowa 1974). It is only reasonable to conclude that the Legislature then understood that Cannabis Sativa L. was that scientific term in general use to describe all varieties of the plant with the hallucinogenic property commonly known as marihuana. The current controversy abroad in the scientific community concerning the species of cannabis undoubtedly prompted the 1975 amendment of the Uniform Controlled Substances Act which now defines marihuana [§ 195.-010(20), RSMo Laws of 1975] to mean “all parts of the plant genus Cannabis in any species or form thereof”. This legislative expression reaffirms that the lawmakers throughout the life of the Uniform Act have intended to control marihuana altogether, by whatever scientific nomination.

The judgment is affirmed.

All concur.

      . The defense expert, Dr. William M. Klein, a botanist who specialized in the classification of plants [taxonomy], gave testimony that he was unable to identify the substance sold by the defendant as Cannabis Sativa L. but his profert that other species of cannabis were botanically recognized was denied by the trial court.

      . Associate Director of the Environmental Trace Substance Center at the University of Missouri.

      . As a matter of plant classification, Cannabis identifies the genus, Sativa gives the species and L. identifies Linnaeus, the pre-eminent naturalist who invented the system of classification.

      . United States v. Honneus, 508 F.2d 566 (1st Cir. 1974); United States v. Kinsey, 505 F.2d 1354 (2nd Cir. 1974); United States v. Moore, 446 F.2d 448 (3rd Cir. 1971); United States v. Sifuentes, 504 F.2d 845 (4th Cir. 1974); United States v. Gaines, 489 F.2d 690 (5th Cir. 1974); United States v. Dinapoli, 519 F.2d 104 (6th Cir. 1975); United States v. Gavic, 520 F.2d 1346 (8th Cir. 1975); United States v. Ludwig, 508 F.2d 140 (10th Cir. 1974); United States v. Walton, 168 U.S.App.D.C. 305, 514 F.2d 201 (1975).


author: SOMERVILLE, Judge.

text:
    STATE of Missouri, Appellant, v. Russell N. PICKETT, Respondent.
    No. KCD 27668.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.

      John C. Danforth, Atty. Gen., Daniel P. Card II, Asst. Atty. Gen., Jefferson City, William G. Johnson, Prosecuting Atty., Morgan County, Versailles, for appellant.
    David R. Hardy, William G. Zimmerman, Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD, and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

By information in the Circuit Court of Morgan County, defendant was charged, as follows, with a misdemeanor:

“ . . . did . . unlawfully, wilfully, refuse to permit a Deputy Boat Commissioner ... to board a boat owned by the said Russell N. Pickett, during the daylight hours, for the purpose of making an inspection to determine compliance with the provisions of Sections 306.250 to 306.290 RSMo., all in violation of Section S06.280 RSMo. . .” (Emphasis added.)

Pursuant to Rule 25.06, defendant, by written motion, moved to dismiss the information. He predicated dismissal on several grounds, one of which lends itself to being paraphrased as follows: His refusal to permit a deputy boat commissioner to board his boat to make an inspection to determine compliance with Sections 306.250 to 306.290, RSMo, was not proscribed by Section 306.-280, RSMo Supp.1973; hence the information failed to charge him with commission of a criminal offense. On November 12, 1974, the trial court sustained defendant’s motion to dismiss the information and discharged him. It did so on the basis that it lacked “jurisdiction” to proceed because the information failed to “allege a criminal offense”.

The state, as authorized by Rule 28.04, appealed.

The state concedes on appeal, and correctly so, that the trial court “lacked jurisdiction” to proceed if the information failed to “allege a criminal offense”. State v. Muchnick, 334 S.W.2d 386 (Mo.App.1960); and State v. Hasler, 449 S.W.2d 881 (Mo. App.1969). However, it refuses to concede that the information charging defendant failed to “allege a criminal offense”. On the other hand, defendant contends that the law compels both concessions by the state. Thus, the principal issue on appeal is joined.

Section 306.280, supra, reads as follows: “All boats located upon waters of this state are subject to inspection by the water pollution board or by a deputy boat commissioner during daylight hours for the purpose of determining compliance with the provisions of sections 306.250 to 306.290.” Section 306.250, supra, defines “Boats” and “Marine toilets”; Section 306.260, supra, with certain exceptions, prohibits boats from discharging sewage into the water; Section 306.270, supra, requires that marine toilets have suitable treatment devices; and Section 306.290, supra, provides that “[a]ny person guilty of violating any of the provisions of sections 306.250 to 306.290 shall be guilty of a misdemeanor.”

According to the state, Section 306.280, supra, “clearly and necessarily implies” that defendant’s refusal to allow a deputy boat commissioner to board and inspect his boat constituted a criminal act within the ambit of said statute. The state’s reasoning takes the following course — since it is apparent that Section 306.280, supra, creates a “limited right of inspection during daylight hours for the purpose of checking compliance with the sewage disposal laws”, “it is equally apparent that the only possible way to violate the statute would be to refuse to permit the inspection or to physically impede the inspector.” Granting that it is apparent that the statute creates a “limited right of inspection”, it is equally apparent that the statute is silent as to how the right of inspection is to be implemented, and, if there be such a thing as degrees of silence, even more silent with respect to the imposition of penal sanctions upon the owner or operator of a boat who refuses to permit inspection. Words to the effect that the owner or operator of a boat shall “permit”, “allow”, “consent to”, “not refuse”, or “not interfere with or impede” the right of inspection, or words of comparable meaning, are nowhere to be found in Section 306.280, supra.

Criminal statutes lay down a code of conduct for people to live by, and when violated subject transgressors to penal sanctions that variously run the gamut from the imposition of fines to the deprivation of personal liberty. As the complexities of society become more and more pronounced, more and more criminal statutes are passed, with the end result, in many instances, that the innocent act of yesterday constitutes criminal conduct today. The ever-continuing proliferation of new criminal statutes, affecting more and more aspects of societal conduct, has served to firm up a continuing commitment by the courts to stringent principles of construction for construing statutes claimed to embrace criminally punishable conduct. Such statutes are strictly construed against the state and liberally construed in favor of an accused. State v. Chadeayne, 323 S.W.2d 680, 685 (Mo. banc 1959); and State v. McClary, 399 S.W.2d 597, 599 (Mo.App.1966). A criminal offense is not created unless expressly written into the statute claimed to be its source, or so clearly, plainly and necessarily implied by the language employed therein that a court can fairly say that such offense is proscribed “beyond all rational doubt”. State v. Dougherty, 358 Mo. 734, 216 S.W.2d 467, 471 (1949); State v. Hall, 351 S.W.2d 460, 463 (Mo.App.1961); and State v. McClary, supra. Clarity of meaning in criminal statutes is a requisite in order that both the wary and the unwary may know whether they are engaging in proscribed conduct. When the meaning of a statute purporting to prohibit certain conduct is riddled with doubt, such doubt is resolved in favor of an accused. State v. Dougherty, supra; and State v. Hall, supra.

One thing is certain. Section 306.-280, supra, does not expressly delineate that owners or operators must permit or allow their boats to be boarded and inspected upon request by the water pollution board or a deputy boat commissioner or run the risk of incurring penal sanctions if they refuse to do so. Nor does this court believe that the controversial statute employs language implying such “beyond all rational doubt”. In order to construe this statute as embracing the offense for which defendant was charged, speculation and conjecture would have to be indulged and the stringent rules of construction heretofore iterated would have to be ignored.

A striking parallel exists between Section 306.280, supra, and a penal ordinance of the City of St. Louis which was the vortex of an appeal in City of St. Louis v. Evans, 337 S.W.2d 948 (Mo.1960). Section 14 of the Building Code of the City of St. Louis provided that building commissioners and their designated agents or subordinates, “[w]hen necessary in the performance of duty”, were empowered to enter structures and buildings, and if entrance was denied, they could “invoke the aid of the police department to enforce such right”. Section 56 of the Building Code provided a penalty for “any violation” of a provision of the code for which no penalty was “elsewhere fixed”. Prosecution was initiated by infor-mations against the owner and janitor of a building for refusing to permit a designated agent of a building commissioner to enter said building for the purpose of “performing his duties as inspector”. The City of St. Louis appealed from judgments of dismissal entered. The Supreme Court, in affirming the judgments of dismissal, l. c. 953, said:

“We think it is clear that Section 14 imposes no duty to admit such officials as are referred to therein and that it does not purport to prohibit a denial of such right of entry. The section purports to be a mere grant of the right of entry to the officials mentioned, when necessary in the performance of duty and it purports to tell the official what to do if such right of entry be denied. It does not make the act of denial an offense, nor impose such a duty upon anyone to grant permission so as to make such a denial a violation of this particular section. While the section provides that in the event that ‘such right of entry be denied * * * such official may invoke the aid of the police department to enforce such right,’ the method of enforcement is not specified, whether by force to open the premises, break down the doors, obtain a warrant or other legal authority to enter, or to arrest some one for obstructing an officer in the discharge of his duty.” (Emphasis added.)

Whatever legislative intent may be embodied in Section 306.280, supra, must be perceived from what the legislature expressly said or from what can necessarily be implied “beyond all rational doubt” from the language it employed, and not from what this court speculates the legislature may have intended to say or inadvertently failed to say. So viewed, Section 306.280, supra, does not embrace the conduct which defendant was charged with and the attempt by the state to predicate criminal prosecution thereon must fail.

By so disposing of this appeal, it becomes unnecessary to decide, even though tendered as an issue both here and below by defendant, whether Section 306.280, supra, attempts to sanction a significant intrusion upon a right constitutionally protected by the Fourth Amendment to the Constitution of the United States and Article I, Section 15, of the Missouri Constitution.

Judgment affirmed.

All concur.

      . Sections 306.250, 306.270, 306.290, RSMo 1969. Section 306.260, RSMo Supp.1973.


text:
    STATE of Missouri, Respondent, v. Gregory KENT, Appellant.
    No. KCD 27720.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.

      Thomas J. Cox, Jr., Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The defendant was charged by Count I of an indictment with possession of the controlled substance marijuana and by Count II with possession of the controlled substance amphetamine. The jury convicted the defendant on Count I and assessed his punishment at imprisonment for a term of five years, but acquitted him on Count II of the indictment.

On this appeal, the defendant contends that his arrest was without probable cause and that the search of his luggage which disclosed the contraband was unlawful as not incidental to the arrest.

The train of events which led to the search, seizure and eventual conviction of the defendant was set in motion by a telephone call from Special Agent McCravy in San Diego, California, to one Sulak, supervisor in the Kansas City, Missouri office of the Drug Enforcement Administration which informed him that on that day, February 7, 1974, he had received a tip from a reliable source that a Caucasian male was traveling under the name of Kent Roberts enroute by train to Kansas City from San Diego with three suitcases of marijuana in his possession. McCravy related a physical description of the suspect, Gregory Kent, his apparel, and the numbers on the claim checks attached to his suitcases, and that he would arrive in Kansas City on Train No. 4, on February 8, at 5:35 in the morning.

Sulak noted this information on a pad and transmitted it to his immediate subordinate, Dempsey, who in turn related the information to Officer O’Donnell of the Narcotics Unit of the Kansas City Police Department.

On the next morning, O’Donnell, accompanied by other officers, undertook to intercept at the Union Station the person of the given description: a Caucasian male, traveling under the name of Kent Roberts, six feet and one inch tall, 175 pounds in weight, between 25 to 28 years in age, dressed in a light brown jacket, maroon shirt and blue trousers, with a full beard and mod cut medium light brown hair. When the train arrived, he saw one alight who answered that description, surveilled him as he moved to the lobby to claim three suitcases in the colors described [one black, another yellow, and the other green] which were then taken to a taxi stand. After the cab driver had asked if the suitcases were his, and received an affirmative reply, O’Donnell placed him in arrest.

The defendant was taken to the security office of the Union Station where a weapons search of his person discovered a small amount of marijuana and amphetamine. One of the suitcases [Exhibit 2, the black luggage] was opened there and disclosed kilo bricks of marijuana. The yellow and green luggage were later opened at police headquarters and were found to carry the same substance. The arrest and search both were conducted without the authority of formal warrant.

The defendant took the stand to explain the circumstances by which the marijuana had come into his possession. He had developed the marijuana practice while doing service in Vietnam. He had earlier refused opportunity as a courier to transport marijuana from California, but when his financial condition became desperate, he agreed to the plan. He was given an airline ticket to San Diego and instructed to meet a man there who was to give him a train ticket and some baggage claim tickets and two keys. On his return, he was to meet a man who would have the key to fit the other suitcases. At the conclusion of the task, he was to be paid $1,000. He knew the bags contained marijuana and that his enterprise was unlawful.

The motion of the defendant to suppress the contents of the three suitcases seized by the police at the Union Station on the morning of the arrest was heard on evidence and denied. Other evidence found in the green bag, a 35 mm canister of small white tablets, was excluded for want of proper identification of custody, and is not a subject on this appeal.

The first contention is that probable cause for the arrest was not established because there was no evidence that the tip which motivated the arrest was reliable or of the underlying basis for the conclusion of the informer that Kent was transporting marijuana; but, probable cause assumed, the right to arrest was nullified by the misflow of the information from McCravy to the officers who eventually made the arrest.

An arrest, with or without authority of formal warrant, is lawful only upon probable cause. There is probable cause to arrest where “the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief” that an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). The constitutional requirement of probable cause can be satisfied by hearsay information. Aguilar v. State of Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). An officer may rely for an arrest on information received through an informant, and is not confined to his direct observations, so long as the circumstances give reason to believe that the informant was generally trustworthy and that the conclusion reached by him was on the basis of information obtained in a reliable way. Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. States of Texas, supra, l.c. 114. The Missouri Supreme Court has construed these principles in State v. Wiley, 522 S.W.2d 281, 287[10-11] (Mo. banc 1975) to mean that “[a]s long as there is a substantial basis for crediting the hearsay [of the informant]”, probable cause for arrest is shown; nor is there any “absolute requirement that the informant be one of previous reliability.”

The evidence of Agent McCravy was that the information was a tip from one who over the past two years had informed on more than 40 occasions concerning the traffic in marijuana as the result of which four thousand pounds of the substance were confiscated and seventy-five arrests made. Of those arrested, most were convicted. The informant professed the aptitude to detect the presence of marijuana by smell. The defendant contends that this evidence does not prove the reliability of the informant because it does not show the probability of the correctness of his information on a given occasion.

The answer is found in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) which affords a fact analogy of remarkable similarity. The informant Hereford had for six months supplied information to federal agent Marsh concerning violations of the narcotics law and had always proven reliable. The informant told the agent that Draper was peddling narcotics to addicts in Denver and would be returning to Denver from Chicago by train on either the following day or the day after with three ounces of heroin. A detailed description was given the agent by the informant of the clothing and person of the defendant. The agent was also told that Draper was a fast walker and would be carrying a tan zipper bag.

On the second day, agent Marsh and a local policeman at the Denver Union Station saw a person who fit the physical and appareled description of Draper alight from the Chicago train. The man carried a tan zipper bag and walked rapidly toward the exit. They arrested Draper, searched him, and found two envelopes of heroin in his overcoat. The United States Supreme Court held that since the informant had always given accurate and reliable information, and on the occasion in question, his description of Draper was verified in detail, probable cause to arrest him had been established.

The parallel between Draper and the case at bench is readily apparent. The information as to the place and time of arrival, the garb, physique of the defendant, the numerals on his luggage claim checks, the number and colors of his travel impedimenta, were all verified by the arresting officers to the last detail. The defendant contends, however, that the hearsay of the informant was not probable cause for arrest under Aguilar because the reliability of the informant was not shown. It is his contention that the evidence of Agent McCravy that two tons of marijuana were confiscated as the result of tips from this informant and that most of those arrested had been convicted does not portend the reliability of his tip on the occasion of his arrest. It was also the evidence of McCravy, however, that the informant handled the packages of marijuana concerning which he had informed and that he had never known him to be wrong about information given him. The full text of the McCravy testimony was sufficient to establish the credibility of the informant under Aguilar.

Even in the absence of an explanation from an informant as to how he came to his knowledge, an officer may act on the tip so long as it describes the criminal activity in sufficient detail to distinguish the accusation from rumor and allows independent corroboration by the officer. Wiley, supra, 522 S.W.2d l.c. 288. Spinelli affirms the holding of Draper that the hearsay of an informant given in detail and independently corroborated by the police suffices as probable cause for arrest [393 U.S. l.c. 416-417, 89 S.Ct. l.c. 589]:

The detail provided by the informant in Draper v. United States . . . provides a suitable benchmark. While Hereford, the Government’s informer in that case did not state the way in which he had obtained his information, he reported that Draper had gone to Chicago the day before by train and that he would return to Denver by train with three ounces of heroin on one of two specified mornings. Moreover, Hereford went on to describe, with minute particularity, the clothes that Draper would be wearing upon his arrival at the Denver station. Independent police work . . . corroborated much more than one small detail that had been provided by the informant. There, the police, upon meeting the inbound Denver train on the second morning specified by informer Hereford, saw a man whose dress corresponded precisely to Hereford’s detailed description. It was then apparent that the informant had not been fabricating his report out of whole cloth; since the report was of the sort which in common experience may be recognized as having been obtained in a reliable way, it was perfectly clear that probable cause had been established.

Draper concludes the issue before us. See, also, State v. Boyd, 492 S.W.2d 787, 788[1] (Mo.1973); United States v. Murray, 492 F.2d 178, 188[12] (9th Cir. 1973).

The defendant argues, however, that although an arrest may validly rest on the hearsay of an informer, when that information then flows from one police agent to another, it becomes hearsay upon hearsay and will not justify an arrest unless each incidence of hearsay meets the Aguilar test that the information come from a reliable source and that the basis for the conclusion of the informant has been shown. The defendant proposes [on the supposed authority of United States v. Wilson, 479 F.2d 936 (7th Cir. 1973)] that although McCravy had the right to arrest on the hearsay of the informant, as to O’Donnell to whom the tip was passed on by another federal agent, the information was only uncredited remote hearsay and was not probable cause for the arrest of the defendant. This argument misconceives Wilson. There, the defendant attempted to charge some purchases at a filling station to a stolen credit card. The attendant made a routine check by telephone with American Express, the credit card company, and was told the card had been stolen. The attendant gave the information to the police who issued a bulletin for the arrest of the defendant. Acting on the information of the police bulletin, officers arrested the defendant and recovered the credit card. The court noted that the information imparted from American Express to the attendant, and then from him to the police, was hearsay upon hearsay, but that in the circumstances of the case each incidence of hearsay satisfied the dual requirements of Aguilar and thus constituted probable cause for arrest. Once the hearsay information from the informant to the police agent satisfies probable cause, an arrest made of the suspect by another officer on that information also rests on probable cause. The court in Wilson stated the principle simply [l.c. 939]: “For the arrest to be valid, the officer who causes the radio bulletin to be issued must have sufficient information to establish probable cause”. Our Supreme Court has spoken on this issue in State v. Whorton, 487 S.W.2d 865, 867 (Mo.1972):

“[If the information supplied the police] was reliable it did not lose its reliability when it was transmitted by these officers to police communications and in turn to other police officers who heard such communications . . . [W]here reliable information is originally imparted to the police, the fact that such information does not come directly from the informant to the arresting officer does not prevent the latter from relying on its trustworthiness when it reaches him through official channels.”

In this case the tip information entered the continuum of police communications when Agent McCravy in San Diego telephoned his Kansas City correspondent, Agent Sulak. The tip from the informant was primary hearsay, corroborated in detail by the police, and therefore sufficient as probable cause for the arrest of the defendant. That the information was then imparted by the agent who had received it from the informant, sequentially, to the officer who made the arrest did not require the officer who executed his authority on the basis of the information to re-establish its integrity.

The final point contends that, a valid arrest assumed, the search of the three pieces of luggage went beyond Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) which narrows the permissible scope of search incident to arrest to include the person of the arrestee and [l.c. 763, 89 S.Ct. l.c. 2040] “the area ‘within his immediate control’ — construing that phrase to mean the area from which he might gain possession of a weapon or destructible evidence.” The defendant argues that at the time of the search he was under police guard, manacled and separated from the suitcases, and could not have reached the bags for a weapon or to destroy evidence.

This contention was considered and rejected in State v. Boyd, 492 S.W.2d 787 (Mo.1973), where an attache case was taken from the person of the defendant upon his arrest and was not examined until he was 150 feet away. The search was held to be incident to a lawful arrest within the Chi-mel rationale. More analogous on the facts is United States v. Mehciz, 437 F.2d 145 (9th Cir. 1971), where the defendant argued that his suitcase had been taken from his possession for search after he had been handcuffed by federal agents and therefore was not within his “immediate control” within Chimel and was not subject to search without a warrant. The court found a constitutional difference between the invasion of privacy which attends house search as in Chimel and the lesser intrusion of a search incident to the arrest of the defendant in a public place.

Nor was the search of two of the baggage invalidated by the lapse of time between the arrest and the search at the police station. “Once the accused is lawfully arrested and in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other.” United States v. Edwards, 415 U.S. 800, 807, 94 S.Ct. 1234, 1289, 39 L.Ed.2d 771 (1974); United States v. Battle, 166 U.S.App.D.C. 396, 510 F.2d 776, 778 (1975).

The search of the luggage, moreover, was lawful on the separate and independent ground that “personal effects which are in the immediate possession of an individual at the time of his valid arrest may be searched without warrant immediately subsequent to the arrest if there is probable cause to believe that they contain contraband.” United States v. Buckhanon, 505 F.2d 1079, 1082[3] (8th Cir. 1974). There was probable cause to believe that the three suitcases contained controlled substances, contraband under the law.

The judgment is affirmed.

All concur.

      . Special Agent McCravy was then with the United States Department of Justice assigned to the Bureau of Drug Enforcement Administration.

      . Kent Roberts proved to be Gregory Kent, the defendant.


text:
    STATE of Missouri ex rel. KANSAS CITY TRAILER SALES, INC., Relator-Respondent, v. KANSAS CITY, Missouri, and Donald R. Boyd, Water Director, Respondent-Appellant.
    No. KCD 27746.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.

      Aaron A. Wilson, City Atty., James A. Burr, Asst. City Atty., Kansas City, for respondent-appellant.
    Kusnetzky & Partin, William C. Partin, Kansas City, for relator-respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

This action in mandamus seeks to compel the City of Kansas City to issue a water connection permit to the relator for business property within the municipality. The City concedes a proper application by the relator but contends the refusal of the permit was a proper exercise of discretion by the Water Director on the authority of Water Department Regulations. The peremptory writ of the trial court ordered issuance of the permit, and the City appeals.

The relator Kansas City Trailer Sales, Inc. [Trailer Sales] sells, services and stores recreational vehicles and motor homes on land which lies at the intersection of 115th Street and South U.S. 71 Highway. As part of the municipal water grid, the City owns and maintains a 12 inch water main on 115th Street which abuts Trailer Sales land. There is no water main along South 71 Highway access road which also abuts Trailer Sales land.

The relator Trailer Sales had newly removed to this site in January of 1973 and was allowed a permit by the City to build a sales building on the south portion of the 4.8 acre tract. The plans filed with the City indicated an intention to connect to the water main on 115th Street and then to run water and utility lines from the 115th Street main to the sales building. The cost of such a water line connection, by water department estimate, would have been $1000. Thereafter, in the course of construction, the City notified the relator that water department regulations required that water service be taken from a main in front of the property to be served, and that since the property fronted on Highway 71 access road, an easement for city water would require the installation of a main extension on Highway 71. The relator calculated the cost at more than $7000, so instead completed the sales building with a private water supply system which complied with all municipal requirements.

The relator concluded for reasons of safety and convenience to separate the service and storage functions from the sales operation, so in early 1974 planned for a service building on the northern portion of the tract. The construction was so oriented that one end of the building faced and opened onto 115th Street in an attempt to qualify for water service from the conduit on that street. A wide driveway connected the new building to 115th Street and was designed to accommodate the movement of these distinctive vehicles. The sales and service buildings and operations are separated by a chain link fence now in place.

Once again the relator applied for municipal water from the 115th Street main, this time to the new service facility which opened onto that thoroughfare, and once again was denied the amenity on the determination of Water Director Boyd that city regulation called for water service to be taken in front of the property to be served and that the frontage of the Trailer Sales tract was along the 71 Highway access road. This refusal was tempered by an offer of the Water Director to allow connection to the 115th Street main on condition that the relator install a conduit along the highway frontage. Trailer Sales rejected the offer of compromise and commenced the action in mandamus.

The trial court formulated findings of fact as predicate for the order that the City and Water Director forthwith issue authority to the relator to connect the service building to the main on 115th Street for municipal water. Our statement of facts [made without direct attribution] are agreeable to the findings of the court. We conclude with the trial court that the denial of access to the extant municipal water grid, which rests on the refusal of the Water Director to consider certain evidence and also mistakes the regulations, both abuses an administrative discretion and errs on the law.

It is the contention of the City that Water Department Regulation 1.09 [all emphases added]:

Issuance of Permits:
Permits are issued subject to a city water main being in front of the property to be served. If the property to be served is large enough to permit subdividing at a later date, it will be necessary for the water main to front the subdivided property on which the facility to be served is located. .

and Water Department Regulation 3.03: General Installation Requirements:

All service lines shall conform to the following requirements,
a) Service connections are to be made in front of the property to be served. . .

are unambiguous that the service building is not a property within their meaning, but if open to doubt, Water Regulation 7.01:

The Water Department will be the sole interpreter of Water Department Regulations . . .

constitutes the Water Director as sole authority to declare the meaning and usage of the regulations, free from judicial scrutiny.

We dismiss the latter contention at once. A court is indeed bound to accord respectful consideration to the construction placed upon regulations by the administrators charged with enforcement [Hogan v. Kansas City, 516 S.W.2d 805, 811[6] (Mo.App. 1974)], but cannot be precluded from the pure judicial function of construction by the informal interpretation an administrator may have given an enactment or regulation. Kroger Company v. Industrial Commission of Missouri, 314 S.W.2d 250, 254[1, 2] (Mo.App.1958).

The findings of the trial court that the denial of the water permit for the service building was both an abuse of discretion by the Water Director and a misconception of the regulations are interrelated. In specific terms, the court found that in the determination of the front of the property within the meaning of the regulations, the Water Director was simply indifferent to evidence that the service building was placed in the northern portion of the tract, that it opened onto and faced 115th Street, was served by ways for ingress and egress of vehicles from and to that thoroughfare, and that for practical purposes, was separated from the sales facility by a chain link fence [then in the making, now in place, according to the parties] and thus denied access to 71 Highway.

The trial testimony of the Water Director supports the conclusion that the denial of the connection permit was neither a matter of evidence nor of informed implementation of regulation, but only the ukase of an administrator. He admitted that evidence would not have mattered, he had already “promulgated . . that the water main extension had to be extended down 71 Highway . . . . It wouldn’t have mattered where this building was situated”. He had determined — but without explanation — that 71 Highway was the front of the tract — and 115th Street only an abutment. He gave as another basis for denial of the permission to connect that the tract lacked a fire hydrant on the 115th Street side. He admitted, however, that there was no municipal requirement for such a placement.

The contention of the City that evidence notwithstanding, the tract and not the service building [as found by the court] is the property to be served, rests upon the premise that, as used in the regulations property refers to the ground or land and facility to the structure. If so, that does not answer what determines the front of a tract for the purpose of the water regulations. The position of the Water Director that the front of a property is what he declares it to be finds no reasonable basis in the regulations. Water Regulation 1.09 which provides [emphasis added]:

[P]ermits are issued subject to a city water main being in front of the property to be served. If the property served is large enough to permit subdividing at a later date, it will be necessary for the water main to front the subdivided property on which the facility to be served is located .

clearly intends that for the purposes of water connection that the front of a subdivided property shall be determined according to the facility to be served. It is conceded by the Water Director that not only was the Trailer Sales tract of sufficient size for subdivision, but that the service building stands on a subdivided portion of the tract. Accordingly, the front of the service building, on our view of the regulations, is determined by its placement, function and other circumstances of use of the structure.

Property, in the sense of real estate, is a term gravid with meaning. As a word of legal art, the meaning includes not only the face of the earth, but everything of a permanent nature under it and over it. 73 C.J.S. Property § 7. The meanings of property and front in the regulations, however, do not depend upon the phraseology of the law, but are to be given their common usage. Property means any land whether bare or improved which requires municipal water for its function. Front means that aspect of the structure which opens onto and faces out upon the street. These usages are consistent with those found in Missouri and other cases which have defined the front of well defined properties. In Collier’s Estate v. Western Paving & Supply Co., 180 Mo. 362, 79 S.W. 947 (Mo. banc 1904), an assessment case, the natural front of the property was upon Lindell Boulevard, because [l.c. 952] “the buildings face upon that street, and the principal means of ingress and egress are by that street”. In Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545, 551[4] (1931), the court acknowledged that “ordinarily, when it is said a house or tract fronts on a certain street, the meaning is, facing or front side toward that street”. A definition of unusual aptness to the circumstances we consider comes from Rhinehart v. Leitch, 107 Conn. 400, 140 A. 763 (1928):

The word front as applied to a city lot has little, if any, inherent application, but it takes on a borrowed significance from the building which is or may be constructed thereon. ... As applied to a building, “front” in general usage refers to that side of it in which is located the main entrance. . . . When used of a lot with a house upon it, it means that portion of the lot abutting upon the street toward which the house faces.

The initial denial by the Water Director of permission to connect the Sales Office to the 115th Street main, although not before us, was justified by the construction we place on the water regulations. That structure faced and opened onto 71 Highway for ingress and egress and, from what the evidence shows, was oriented for use to that thoroughfare. The front of the service facility which stands on another subdivision must be determined on its own circumstances.

For the reasons already given, the evidence conclusively showed that the service facility was a property which fronted upon 115th Street, and that the relator was entitled as a matter of law to connect to the city main on that thoroughfare.

The refusal of the administrator to consider facts made known to him by the relator on the determination of the service building frontage was an abandonment of discretion and was properly corrected by the writ of mandamus which directed that, as a matter of right, a permit issue for the connection of the service facility to the municipal water main on 115th Street.

The judgment is affirmed.

All concur.


text:
    Robert Edward JOHNSON, Jr., Respondent, v. W. M. GRACE CONSTRUCTION COMPANY, INC., Employer, and the Western Casualty and Surety Company, Insurer, Appellants.
    No. KCD 27766.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    George G. Allen, Jr., Kansas City, for appellants; Niewald, Risjord & Waldeck, Kansas City, of counsel.
    James S. Formby, Kansas City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J. and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

The Industrial Commission on review modified a workmen’s compensation referee’s award of 5.5 weeks permanent partial disability at $65 per week, totalling $357.50, to 40 weeks at $65 per week, totalling $2,600, the latter award being affirmed on review by the trial court.

Appellants’ Point I is: “The Court Erred in Modifying the Referee’s Award Because the Respondent’s Examining Physician, Dr. Szabados, Failed to Establish an Opinion Based upon Reasonable Medical Certainty That the Injuries Which He Enumerated Resulted in any Permanent Disability.” It is not clear what is meant by the point, but it is more specifically developed in the argument portion of the brief that the testimony of Dr. Ernest Szabados “is contradictory, inconsistent and self-destructive, lacking in any probative value, and clearly based upon surmise and speculation, and fails to meet the burden imposed upon claimant to support the amendment to the award.” The real thrust of appellants’ argument is that Dr. Szabados saw respondent one time, October 12, 1973, when the accident happened on February 29, 1972, and during his single examination, as he conceded, he found no objective signs of the injuries claimed. It does not appear whether Dr. Szabados’ examination was done solely for the purpose of testifying. The testimony of Dr. Szaba-dos which the Commission found should have been considered by the referee is this: “Q (By Mr. Formby) Considering your examination, and the subjective complaints and subjective findings and negative findings on objective testing, did you arrive at a diagnosis? MR. ALLEN: Same objection. [That there were no objective findings] THE WITNESS: My opinion as a result of my findings is that this man directly as a result of the industrial accident, February 29, 1972, incurred a cerebral concussion, multiple abraded contused wounds, and a crush injury of the right forefoot. Soft tissue injuries were also incurred implicating the neck, back, and shoulder girdle, the precise nature of which is not determinable at this time. I also concluded that inasmuch as he continues to have symptoms pertaining to the neck, back, left upper extremity, and the right foot, after one and one half years, one can with reasonable medical certainty assume that he will continue to have these diverse muscular skeletal symptoms indefinitely inasmuch as an element of chronicity has become established. Q (By Mr. Formby) Doctor, did you arrive at opinion concerning this man’s industrial disability as a result of his injuries? A I did. Q What was that opinion? A I gave him a 20 per cent disability rating to the body as a whole.” (Italics added.)

Whatever the rule may be in other jurisdictions (cf. 31 Am.Jur.2d, Expert and Opinion Evidence, § 108, p. 634, et seq.) in this state, “ ‘A physician, in stating his expert opinion on a patient’s condition, may testify to what he personally observed and also to what the patient said (an exception to the hearsay rule) concerning his present, existing symptoms and complaints’.” Schears v. Missouri Pacific Railroad Company, 355 S.W.2d 314, 317[1] (Mo. banc 1962), and cases and authority cited. See also Anno. Medical Expert-Opinion-Admissibility, 51 A.L.R.2d 1051, and particularly the Missouri cases collected at § 7, p. 1078, et seq. thereof. What is clearly inferable here, from the nature of the question put to Dr. Szabados as to what his diagnosis and opinion were based upon his subjective findings, is that respondent told him at the time of the examination what his complaints and symptoms were. This is precisely the meaning of “subjective symptoms.” Coleman v. Hercules Powder Company, 284 S.W.2d 32, 38 (Mo.App.1955).

Examining Dr. Szabados’ testimony relating to his subjective findings, there is found these matters: “I next hyperextended his trunk with him lying flat. Having raised his head and shoulders up, I raised his legs up off the table. He was able to hyperex-tend his trunk like this paper (indicating) showing the convexity toward the floor and there is no protective muscle spasm evoked with this maneuver active or passive. However, ill-defined discomfort accompanied the passive — correction, I mean active maneuver when he raised up himself, there was ill-defined discomfort indicated in the lower lumbar area which is across the waistline level.” On cross-examination: “Q He didn’t complain to you of any pain, is that right? A With hyperextension of the trunk, he had pain in his back * * * Q No protective muscle guarding was provoked — apparently he did, on active maneuvers, you said, I think, have some ill-defined discomfort in the lower lumbar area? A Yes. Q That is what we would refer to as a subjective complaint? A Yes.”

Respondent’s brother observed him after he had been taken to a hospital after the accident (there was a concrete block wall 22 feet high and 33 feet wide which fell upon respondent). The brother testified that respondent had a block print in the middle of his back, “It was all, instead of being like cement form, it was all a blood clot, just one solid blood clot, little red dots and it was just solid like someone had drawn a block on his back.” Dr. Szabados was asked (redirect examination by Mr. Pormby): “Q Doctor, just a few short questions. Would the presence of numerous bruises and abrasions on and about the body and the back and extremities of Mr. Johnson immediately following this accident and while he was in the Emergency Room at the hospital and the clear imprint of a concrete block on his back be any indication of whether he had sustained soft tissue injury or not? A It would. Q In the absence of positive x-ray findings? A It would.” This testimony with that of the subjective findings of Dr. Szabados certainly is sufficiently substantial to support his opinion, above set forth, and the finding of the Industrial Commission.

Dr. Szabados stated his opinion with “reasonable medical certainty” that respondent would have the diverse muscular skeletal symptoms indefinitely inasmuch as an element of ehronicity had become established. Appellants say, “In order to determine that the employee sustained permanent partial disability of the body as a whole it must be assumed that Dr. Szabados by the use of the words indefinitely and ehronicity meant to infer permanency.” The above testimony relating to the concrete block imprint upon respondent’s back supports the conclusion that there was some kind of soft tissue injury evidenced by the element of ehronicity (i. e., one and one-half years of symptoms). “Chronic” or “ehronicity” means “Continuing for a long time; of a disease, of long duration, or characterized by slowly progressing symptoms.” Webster’s New International Dictionary, Second Edition. The word “indefinitely” although not precisely synonymous with “permanently” according to Webster’s dictionary, must be taken in context with Dr. Szabados’ use of the word “ehronicity.” In so doing it must be held that he meant that respondent’s partial disability was permanent. See Hughes v. Prudential Ins. Co., 179 S.W.2d 630, 638[13, 14] (Mo.App.1944), where it was conversely said, “The phrase ‘permanently disabled’ is not to be narrowly construed, but means a condition that appears to be reasonably certain or likely to continue permanently or indefinitely. (Citing cases.)” (Italics added.) See also Commonwealth Life Ins. Co. v. Ovesen, 257 Ky. 622, 78 S.W.2d 745, 746[3, 4] (1935); and Wheeler v. Burgess, 263 Ky. 693, 93 S.W.2d 351, 354 (1936), where the court said, “We use the words ‘for an indefinite time’ in the same sense that the United States Supreme Court defined them in Williamson v. Osenton, 232 U.S. 619, 34 S.Ct. 442, 443, 58 L.Ed. 758, where it is said: ‘We must take them to mean: for a time to which the plaintiff did not then contemplate an end.’ ” Here, in the context presented, Dr. Szabados reasonably meant that he did not contemplate an end to respondent’s condition.

Appellants’ Point II is that as a matter of law there was not sufficient competent evidence to warrant the Industrial Commission’s modification of the award. The thrust of the argument is again that the medical opinion was based upon subjective complaints only. That has above been considered, and the point is overruled.

The judgment is affirmed.

All concur.