source: Caselaw Access Project

author: PER CURIAM. FINCH, Senior Judge,

license: Public Domain

text:
    Christopher Shawn HILL, a minor, by and through Ronald D. Hill, his father and next friend, Plaintiff-Appellant, v. C. Read BOLES, M. D., and St. Louis Children’s Hospital, Defendants-Respondents.
    No. 60788.
    Supreme Court of Missouri, En Banc.
    June 27, 1979.

      Robert Lee Smith, Thurman, Nixon, Smith, Howald, Weber & Bowles, Hillsboro, for plaintiff-appellant.
    Eugene K. Buckley, Evans & Dixon, St. Louis, for defendant-respondent St. Louis Children’s Hospital.
    Doris J. Banta, George E. Lee, Barnard & Baer, St. Louis, for defendant-respondent Boles.
   PER CURIAM.

This case was transferred by this court after opinion of the Missouri Court of Appeals, Eastern District, upon application of defendants-respondents. The cause has been further briefed and argued here. This court has concluded the court of appeals opinion by Kelly, J., is correct and we therefore adopt the same without use of quotation marks as follows:

Ronald D. Hill, father and next friend of Christopher Shawn Hill, plaintiff-appellant, brings this appeal from the judgment of the Circuit Court of the City of St. Louis in behalf of the defendants, C. Read Boles and the St. Louis Children’s Hospital. Because we have determined that the trial court committed errors which were prejudicial to the plaintiff-appellant’s rights, we reverse and remand with directions.

Plaintiff-appellant’s Amended Petition charged both Dr. C. Read Boles and the St. Louis Children’s Hospital with negligence in the medical care and treatment of the minor, Christopher Shawn Hill. More specifically, the defendant-respondents were charged with negligently administering oxygen to the minor while he was a patient in the Hospital under the care of Dr. Boles, causing him to suffer from retrolental fib-roplasia, hereinafter called RLF, an eye disease, causing total blindness in the minor’s right eye and loss of sight in his left eye so that its vision was limited to simple light perception. Plaintiff-appellant’s First Amended Petition alleged that he suffered mental, emotional and physical pain and prayed for $1,000,000.00 in damages.

Plaintiff-appellant’s First Amended Petition was filed on July 25, 1974. The cause was instituted on May 14, 1971, and between that date and July 20,1973, considerable discovery was employed by the parties, and on November 12, 1974, defendant-respondent Hospital filed its motion for summary judgment on the ground that there was no genuine issue as to any material fact pertaining to the defense of charitable immunity alleged in paragraph 10 of its Separate Answer to plaintiff-appellant’s Amended Petition. On February 21, 1975, defendant-respondent Hospital’s motion for summary judgment was heard and taken under submission and on March 10, 1975, the trial court sustained the Hospital’s motion for summary judgment.

The cause against the remaining defendant-respondent, C. Read Boles, came on for trial on March 24, 1975, was tried to a jury, and a verdict for the defendant-respondent Boles was returned on April 3, 1975.

Thereafter, on April 15, 1975, plaintiff-appellant filed his motion to set aside the judgment entered on the jury verdict in favor of defendant-respondent Boles and to grant him a new trial as to said defendant-respondent Boles and also a separate motion to set aside the judgment entered in favor of the defendant-respondent Hospital on its motion for summary judgment and for a new trial as to said defendant-respondent. On June 30, 1975, both of plaintiff-appellant’s motions were overruled and on July 3,1975, a notice of appeal from both of these judgments was filed to this court.

The evidence at trial was as follows: The plaintiff was born on May 19,1969 in Washington County Memorial Hospital, Potosí, Missouri, approximately two months prior to the expected delivery date of July 10, 1969, as projected by the delivering physician, Dr. Kirby Turner. Christopher was the second of a set of fraternal twins, the first born having died shortly after delivery. He was examined by Dr. Turner and the hospital record indicates his general condition was good, including vision, but shortly after delivery the baby showed symptoms of respiratory distress, which included cyanosis (a bluish color of the skin) and grunting. Dr. Turner then prescribed oxygen for Christopher, which he received after being placed in a type of incubator called an isolete.

Dr. Turner advised transferring the plaintiff to St. Louis Children’s Hospital, and arrangements were made with the defendant, Dr. Boles, a pediatrician on the staff of Children’s Hospital, to whom Dr. Turner had referred children with pediatric problems in the past. Approximately two hours and fifteen minutes after birth, Christopher was placed in a portable iso-lette and transported by station wagon to St. Louis Children’s Hospital.

Plaintiff was admitted to the hospital at 7:30 p. m. and was examined by Dr. Robert Greenwood, a first year intern, who noted the child was a premature infant with respiratory distress syndrome. At this point a blood count, a retriculocyte count (a test to determine whether a baby is producing a high amount of red cells because they are being destroyed), a urinalysis, a chest x-ray, a measurement of how much glucose was in the bloodstream, a throat culture and a blood culture were ordered. Dr. Greenwood also prescribed sodium bicarbonate due to a finding of low blood acidity. Throughout this time Christopher was also receiving oxygen at a rate of approximately 50%, a significantly higher percentage than the 20 to 21% normally found in the atmosphere.

Defendant Boles arrived at around 9:30 p. m. and examined the plaintiff, observing the child was in an isolette, receiving fluids through a catheter which had been inserted at Washington County Hospital. He found the child was in respiratory distress, manifested by an increased breathing rate, grunting, increased movement of the abdomen, as well as the chest wall, which was sinking in, a bruise covering the entire head, and moderate cyanosis. The first written order for oxygen was 40 to 50 percent, issued on May 20, 1969, between one and two a. m., and later that morning a second written order prescribing: “less than 40 per cent oxygen unless cyanotic” was put into effect. This order remained in effect until 7:30 a. m. on May 24, 1969.

Dr. Boles returned on May 20, 1969 to examine the child and found he still had respiratory distress. The x-ray taken showed the child had bronchial pneumonia and Dr. Boles stated this was present on May 21, 22 and 23, 1969, and was a condition which warranted the continuation of oxygen. No additional x-rays were taken however. Dr. Boles testified his decision was based on daily examinations of the child during which the isolette was opened to determine how the child reacted to the change in oxygen, a procedure called “challenging.” During this period Dr. Greenwood testified that he also regularly examined the plaintiff outside of the isolette and he determined that oxygen was necessary on May 21, 22, and 23, 1969, because the child showed rapid respiration and began to develop signs of respiratory distress when removed from the isolette. The hospital chart reflects no such observations nor does it reflect that the infant was challenged. The oxygen was ordered turned off by Dr. Greenwood on May 24, 1969, by telephone, after he received a call from a nurse stating she had gotten an elevated oxygen reading.

Throughout the time plaintiff was receiving oxygen, readings were taken by nurses of the oxygen concentration. The concentration on May 21st ranged from a low of 30% to a high of 38%. On May 22nd the only measurement shown was 30%. On May 23rd there were readings of 30% to 34%, and finally May 24th shows readings of 50%, 48% and 44%. These last readings appear to be errors because there is no evidence presented showing oxygen continued after 7:30 a. m., May 24, 1969.

Christopher was discharged from the hospital on June 26, 1969, after reaching a desired weight of 5 pounds. It was determined that plaintiff’s parents would take plaintiff to Dr. Turner within a month for an examination. At the time of discharge there was no indication plaintiff suffered from RLF.

On July 25, 1969, Dr. Turner examined Christopher and did not notice anything abnormal about his vision. He reported that, aside from being small, the baby was healthy and normal. He also examined Christopher on October 1, 1969, when his parents brought him in with a sore throat and upper respiratory ailment, and again noticed no abnormalities other than weight. Christopher’s parents did not mention any condition concerning his eyes to Dr. Turner.

In mid-October, 1969, the Hills noticed a “rolling, jerking movement” of Christopher’s eyes and when they brought Christopher to see Dr. Boles on October 29, 1969, for his six month examination they mentioned the condition to him. Dr. Boles was unsuccessful in his attempt at examining the eyes, and referred the Hills to Dr. Allan Kolker, an ophthalmologist in McMillan Hospital, who saw plaintiff on November 5, 1969. According to Mrs. Hill, Dr. Kolker gave no diagnosis. The affidavit of Dr. Kolker, however, states that Christopher had RLF on November 5, 1969, but it does not say he advised the Hills of this diagnosis.

Dr. Kolker referred Christopher to a second ophthalmologist Dr. Isaac Boniuk whose office was located in Queeny Towers of the Barnes Complex. Dr. Boniuk saw Christopher on November 5, 1969, but Christopher was uncooperative when the doctor attempted to examine his eyes, so plans were made to admit Christopher into Children’s Hospital on November 16, 1969, to examine him under general anesthesia.

The examination took place on November 17, 1969, at which time an operation was performed on the left eye. Although the Surgical Discharge Summary, transcribed on December 15, 1969, listed the final diagnosis as “RLF, retinal detachment,” signed by the attending physician, defendant Boles, Mr. and Mrs. Hill stated they were not told anything about RLF or the use of oxygen. They were only aware their son was almost totally blind. Christopher was discharged from the hospital on November 27, 1969.

The plaintiff’s parents first discovered Christopher suffered from RPF in May, 1970, when an insurance claim form was sent to Dr. Boniuk and it was returned with the words “retrolental fibroplasia” written on the diagnosis. Mrs. Hill looked the words up and learned of the association with excessive oxygen. Upon this discovery, the Hills sought legal assistance.

Plaintiff-appellant contends that he is entitled to a new trial as to defendant-respondent Boles because the trial court erred in overruling his objections to allowing counsel for Boles to argue that an unfavorable inference could be drawn from the failure of the plaintiff-appellant to produce Dr. Boniuk as a witness at trial. Under the peculiar circumstances of this case, we agree.

It was Dr. Isaac Boniuk, an ophthalmologist, who diagnosed plaintiff-appellant’s condition as retrolental fibroplasia and who performed surgery upon him in Children’s Hospital while the minor was there under the care of Dr. Boles. The argument to which plaintiff-appellant refers was the comment of Dr. Boles’ trial counsel in argument as follows:

“. . . and we come back to this matter of the burden of proof, which rests on the plaintiff. Who brought you these other medical witnesses? The defendant. The defendant brought in Dr. Turner, who saw this child the very first time, to give you the complete story of what his condition was and what the mother’s condition was. Would it occur to you that the plaintiff, with the burden of proof in the case, in this ease, wouldn’t have brought that evidence to you? Their own treating doctor in that community? Would it occur to you that the plaintiff, in order to sustain its burden of proof as to the causation of retrolental fibroplasia, as to the condition of this child, would not have brought him to let you hear, let you look at, let you listen to the testimony of Dr. Boniuk, the surgeon who took care of this child month-after-month, who performed surgery on his eye? Would it occur to you that when you have the burden of proof—
MR. SMITH: Your Honor—
MR. LEE: —that you'would not do that?
MR. SMITH: Please, please, I want to object to this. The record will show that Dr. Boniuk was a professional associate of Dr. Allen Kolker, the ophthalmologist. MR. LEE: That’s not so, Your Honor, and I object to this kind of argument.
MR. SMITH: I am making an objection.
MR. LEE: Well, I object to this as an improper objection. This is their treating doctor and I have a right to comment on it.
THE COURT: Let’s proceed.
MR. SMITH: May I make an objection, Your Honor?
THE COURT: You may.
MR. SMITH: My objection is that the record shows very definitely that Dr. Boles referred Christopher to Dr. Kolker and from there to Dr. Boniuk, and then—
MR. LEE: That’s not so. The record shows that Dr. Kolker referred him to Dr. Boniuk.
MR. SMITH: Excuse me, Mr. Lee—
MR. LEE: I object to it; this is what he has been doing throughout this lawsuit.
MR. SMITH: I object to that statement.
THE COURT: Gentlemen—
MR. SMITH: I ask that the jury be instructed to disregard what Mr. Lee just said.
THE COURT: The Court is instructing the jury to disregard the last statement by Mr. Lee. I overrule the objection.
MR. SMITH: I haven’t made my objection.
THE COURT: I understand your objection.
MR. LEE: He understands your objection and I object to his repeating it as needless.
THE COURT: Well, it is preserved. I have saved your time.”

Plaintiff-appellant argues that Dr. Bon-iuk was not, under the circumstances, peculiarly available to him as a witness but was, rather, equally available to both parties, or more available to Dr. Boles.

The rule in Missouri is that the raising of a negative inference in argument from a party’s failure to produce a witness is improper if the witness is equally available to both parties, Stotler v. Bollinger, 501 S.W.2d 558, 561[7] (Mo.App.1973); Lyons v. Taylor, 333 S.W.2d 346, 356[9] (Mo.App.1960), and if the trial judge overrules an objection to such argument it is prejudicial error. Halley v. Schopp, 400 S.W.2d 123, 126[4] (Mo.1966).

Whether a witness is equally available depends upon several factors. Among these factors are:

1. one party’s superior means of knowledge of the existence and identity of the witness;
2. the nature of the testimony that the witness would be expected to give in the light of his previous statements or declarations, if any, about the facts of the case; and
3. the relationship borne by the witness . to a particular party as the same would reasonably be expected to affect his personal interest in the outcome of the litigation and make it natural that he would be expected to testify in favor of the one party against the other.

Chavaries v. National Life & Accident Ins. Co., 110 S.W.2d 790, 794[12, 13] (Mo.App.1937). These standards have been applied in a number of later cases, including Adam Hat Stores v. Kansas City, 307 S.W.2d 36, 41[9] (Mo.App.1957) aff’d 316 S.W.2d 594 (Mo. banc 1958); Hawkins v. Allen Cab Company, 457 S.W.2d 940, 942[3-5] (Mo.App.1970); and Gridley v. Johnson, 476 S.W.2d 475, 479[2] (Mo.1972).

In Missouri the cases have generally held that a party’s treating and examining physician in a personal injury action is presumptively more available to that party. Stotler v. Bollinger, supra, Richardson v. Wendel, 401 S.W.2d 455, 459[10] (Mo.1966). We believe, however, that in a proper case this presumption may be held inapplicable by reason of the circumstances shown in evidence.

We have here a malpractice case seeking damages from a treating physician for alleged negligence in the performance of his professional duties toward the plaintiff-appellant. The witness whose absence was the subject of comment was associated with the defendant-respondent Dr. Boles in the Barnes Hospital Group and was on the staff of the defendant-respondent, St. Louis Children’s Hospital. When plaintiff-appellant was re-admitted to the Hospital on November 16, 1969, he was under the care of both Dr. Boles and Dr. Boniuk. The evidence shows that Dr. Boniuk was not selected by the parents of plaintiff-appellant independently; rather, they were referred to Dr. Boniuk after they had seen Dr. Kolker, another ophthalmologist in the Barnes complex, to whom they had been referred by Dr. Boles. Another fact, which we believe is significant in resolving this issue, is the listing of Dr. Boniuk by Dr. Boles’ counsel in his supplemental answers to interrogatories filed six days prior to trial as a witness who “defendant may call” and who would testify concerning “retro-lental fibroplasia and the condition of plaintiff.” This assumes added importance in view of the fact that on January 7, 1975, plaintiff-appellant filed interrogatories directed to both defendant-respondents requesting that they identify each expert witness they expected to call at trial and to state the subject matter of the testimony to be offered by said witness. On January 9, 1975, Dr. Boles filed a similar interrogatory directed to the plaintiff-appellant and on February 5,1975, the Hospital also filed the same interrogatory directed to plaintiff-appellant. On February 20,1975, plaintiff-appellant replied to both of these interrogatories and did not include in same the name of Dr. Boniuk as one of the witnesses he intended to call. On March 18, 1975, Dr. Boles filed “Supplemental Answers” to plaintiff-appellant’s interrogatories and named Dr. Boniuk as a witness he might call and who would testify as previously stated.

According to the record, Dr. Boniuk did not inform plaintiff-appellant’s parents that his blindness was caused by RLF following the November 17,1969, examination. They first learned of this diagnosis when they saw an insurance claim form signed by Dr. Boniuk that had the words “retrolental fib-roplasia” written on it in May, 1970.

In the typical personal injury action the plaintiff’s personal physician has no connection whatsoever with the defendant in the case and was chosen by said plaintiff or was referred to said plaintiff by the physician initially selected by said plaintiff, and the interest of the treating or examining physician lies particularly with the patient without any extraneous interests entering the picture. Under the facts presented here, however, we conclude that the evidence is sufficient to show that there existed enough of a relationship between Dr. Boles and Dr. Boniuk “as would reasonably be expected to affect his personal interest in the outcome of the litigation” and plaintiff-appellant’s objection should have been sustained.

We also believe that this situation is analogous to those cases holding an employee witness is more available to an employer. Goodman v. Firmin Desloge Hospital, 540 S.W.2d 907, 913[10] (Mo.App.1976). Although Dr. Boniuk was not an employee of Dr. Boles nor of the Hospital, he did collo-borate withDr. Boles in rendering medical services to plaintiff-appellant and was closely tied to the defendant-respondent Hospital. Unfavorable testimony relative to either Dr. Boles’ treatment of plaintiff-appellant or to another physician associated with the Hospital would have the same adverse consequences which might befall an employee who testified contrary to the interests of his employer. Dr. Boniuk’s failure to report to the parents of plaintiff-appellant his diagnosis and to discuss with them its possible causes is indicative of some reticence on his part to fully advise them of the medical problems involved in their son’s case.

The court in Gridley, supra, recognized that it is not reasonable to say that where a patient makes a malpractice claim, all doctors he or she sees thereafter must, ipso facto, be produced as witnesses or else the defendant can argue the inference is the missing doctors would not have supported the claim if malpractice. 476 S.W.2d 1. c. 479.

Considering the totality of the circumstances portrayed in this record we hold that it was prejudicial error to permit counsel for Dr. Boles to argue the failure of the plaintiff-appellant to call Dr. Boniuk as a witness in the cause over the objection of plaintiff-appellant, and requires that the judgment of the trial court be reversed and the cause remanded for a new trial.

Because we have determined that this cause must be retried, we do not reach the other two points raised by plaintiff-appellant. They are directed, in the first instance, to the sustaining of objections of Dr. Boles to rebuttal evidence tendered by plaintiff-appellant and to the overruling of plaintiff-appellant’s objection to testimony of Dr. Byrne, one of Dr. Boles’ witnesses, relative to certain studies and reports which plaintiff-appellant contends were inadmissible as hearsay. We would not venture a guess that these same evidentiary problems would arise on a retrial.

We now consider plaintiff-appellant’s appeal from the judgment entered upon the trial court’s sustaining of defendant-respondent St. Louis Children’s Hospital’s motion for summary judgment on the grounds that the Hospital was the beneficiary of the doctrine of charitable immunity.

Defendant-respondent Hospital has filed a motion to dismiss plaintiff-appellant’s appeal as to the Hospital for lack of jurisdiction. The grounds as stated in this motion are the failure of the plaintiff-appellant to file a motion for rehearing or reconsideration within fifteen days after entry of the summary judgment on March 10, 1975, and therefore the judgment became final for the purpose of appeal on April 9, 1975, at the expiration of thirty (30) days after the entry of the summary judgment, and the notice of appeal from that judgment was not filed by the plaintiff-appellant until July 3, 1975.

The right of appeal is purely statutory. Section 512.020 RSMo. 1969 governs who may appeal a case from the trial court and when, and our courts have stated repeatedly that since an appeal must be from a final judgment (with specified exceptions), the trial court must have disposed of all issues and all parties. This requirement that all issues and all parties have been disposed of is for the purpose of avoiding piecemeal presentation of cases on appeal, except where specifically so authorized. Bolin v. Farmers Alliance Mut. Ins. Co., 549 S.W.2d 886, 889[2, 3] (Mo. banc 1977).

The question then is whether the trial court entered a final judgment from which plaintiff-appellant was required to perfect his appeal within 10 days after the Hospital’s motion for summary judgment was ruled on, March 10, 1975.

The judgment set forth in the transcript as of March 10, 1975, recites:

“The Court having heard and duly considered the separate motion of defendant St. Louis Children’s Hospital for summary judgment heretofore filed, heard and submitted to the Court on February 21, 1975, upon the evidence and proof adduced, and being now sufficiently advised of and concerning the premises thereof, doth now order that said motion be and the same is hereby sustained.
“It is further ordered by the Court that this cause be and the same is hereby reassigned to Division No. 1 of this Court for further proceedings thereon.”

On April 15,1975, plaintiff-appellant filed a motion to set aside the judgment in favor of the Hospital based upon the sustaining of the Hospital’s motion for summary judgment and for an order directing that the plaintiff-appellant be granted a trial on the issues between himself and the Hospital. On June 30,1975, this motion was overruled and on July 3,1975, plaintiff-appellant filed his notice of appeal from said judgment.

In Bolin v. Farmers Alliance Mut. Ins. Co., supra, the trial court had rendered a summary judgment in favor of defendant insurer and a few days later sustained, without prejudice, the motion of the named beneficiary in a trip accidental death insurance policy issued on the life of Alma Mae Bolin in a suit brought by the heirs at law and the personal representative of the decedent against the insurance company to collect the proceeds of the policy of insurance. In the suit, the named beneficiary was also a named defendant. The summary judgment for the insurance company was entered on March 21, 1975, and the motion of the named beneficiary Marilyn Abernathy, to dismiss as to her was sustained, without prejudice, on March 25, 1975. On April 21, 1975, plaintiffs filed their notice of appeal from the summary judgment entered on March 21, 1975.

The judgment on the insurance company’s motion for summary judgment stated: “This judgment shall not affect the rights of defendant Marilyn Abernathy.” The court held, id. 1. c. 890, that the entry of summary judgment, although it settled the issue between the plaintiffs and the insurance company as to whether the plaintiffs were entitled to judgment against the insurance company on the policy of insurance, did not undertake to resolve the issues between plaintiffs and Abernathy and specifically recited that it was not to affect her rights, if any. Under these circumstances, the summary judgment was held to be an interlocutory judgment or order, and not a final judgment from which an appeal would lie.

In New Age Federal Savings & Loan Ass’n. v. Miller, 461 S.W.2d 876 (Mo.1970), the Court also held that a motion for summary judgment dismissing the third-party petitioner’s claim was not a final judgment from which an appeal would lie, because it did not purport to adjudge the rights of all of the parties and the trial court did not specifically designate it as a final judgment for purposes of appeal, and no order was made for separate trial of issues among the other parties. The court, 1. c. 878, said:

“Under the rule it has long been held that a final appealable judgment is one which disposes of all parties and all issues in the case. * * * The only exceptions are where the court has ordered separate trials of issues, or has designated the judgment or order entered final for purposes of appeal.”

We hold that the summary judgment entered on March 10, 1975, was not a final judgment from which an appeal would lie and deny the motion of defendant-respondent St. Louis Children’s Hospital to dismiss plaintiff-appellant’s appeal on the grounds his notice of appeal was not timely filed.

The defendant-respondent Hospital contends that the trial court correctly sustained its motion for summary judgment because plaintiff-appellant’s cause of action arose prior to November 10, 1969, at a time when the doctrine of charitable immunity was still the law in this State and that there is no genuine issue of fact on this point as evidenced by the pleadings, depositions, admissions on file and affidavits in support thereof.

Stated simply, the issue then is: When did the cause of action arise?

The answer to this query is crucial. If it arose prior to November 11, 1969, the doctrine of charitable immunity was alive and well in this state. However, if it arose after November 10, 1969, the doctrine had been dealt a lethal blow by the decisions of the Supreme Court of Missouri in Abernathy v. Sisters of St Mary’s, 446 S.W.2d 599, 606[1] (Mo. banc 1969) and Garnier v. St. Andrew Presbyterian Church of St. Louis, 446 S.W.2d 607, 608[3] (Mo. banc 1969).

Plaintiff’s argument revolves around principles of law applicable to problems emanating from the application of the statutes of limitation. We are not here concerned with a limitations question. Rather, we are confronted with a question involving pro-spectiveness, and we believe the principles of law applicable to the one may not apply at all to the other.

The doctrine of prospective application is predicated on a rationale of reliance upon a legal principle and the effect visited upon the parties who have, quite reasonably, relied on the law as it existed at the time they acted, but now find themselves with the “carpet” suddenly pulled from beneath them by reason of the change in the law. That this was a problem was recognized by the court in Abernathy when it stated that retrospective application could result in hardship to the institutions which had relied on the doctrine of charitable immunity and that the ends of justice would best be served by applying the decision prospectively only. Subsequent cases have also followed that line. Burns v. Owens, 459 S.W.2d 303, 306[2] (Mo.1970); Bodard v. Culver-Stockton College, 471 S.W.2d 253, 254[1] (Mo.1971).

The reasoning behind this approach is stated in Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 163 N.E.2d 89, 97-98 (1959):

“We do not suggest that the tort itself was committed in reliance on the substantive law of torts, i. e., the bus driver did not drive negligently in reliance on the doctrine of governmental immunity, but rather that school districts and other municipal corporations have relied upon immunity ... In reliance on the immunity doctrine, school districts have failed to adequately insure themselves against liability. In reliance on the immunity doctrine they have probably failed to investigate past accidents which they would have investigated had they known they might later be held responsible therefor.”

We believe this reasoning is equally applicable to those institutions which formerly enjoyed the cloak of the doctrine of charitable immunity, and the one which should be adopted in this case.

While the Supreme Court in Abernathy abolished the doctrine of charitable immunity it did not resolve the question with which we are here confronted, i. e., when did this cause of action “arise?”

Plaintiff-appellant argues that his cause of action arose on one of three occasions: (1) when the damage resulted and was reasonably capable of ascertainment; (2) at the time of last treatment of the plaintiff-appellant by the defendant-respondent Hospital; or (3) when the last of a continuing course of acts of negligence on the part of the Hospital in failing to alert plaintiff’s parents for signs of possible eye damage so that if any signs were observed they could have been minimized by early treatment.

Plaintiff-appellant’s first argument is based upon Section 516.100 RSMo. 1969, the statute of limitation in civil actions, which provides that in civil actions a cause of action does not “accrue” when the wrong is done, but when the damage results and is reasonably capable of ascertainment.

His second argument relies on two malpractice cases in which the Court held that in medical malpractice cases the statute of limitations did not commence running until after the physician ceased treating the plaintiff, and that where the treatment is continuing and of such nature as to charge the physician with the duty of continuing care and treatment essential to recovery, then, until the physician-patient relationship ceases. Thatcher v. DeTar, 351 Mo. 603, 173 S.W.2d 760, 763[3] (1943); National Credit Associates, Inc. v. Tinker, 401 S.W.2d 954, 959 (Mo.App.1966).

Plaintiff-appellant’s third alternative argument on when his cause of action arose is that the Hospital was guilty of a number of negligent acts which continued at least until November 17, 1969. These negligent acts, according to the plaintiff-appellant are: (1) the negligence of the Hospital in not explaining to his parents the risk of eye damage in the administration of oxygen to a premature infant, (2) the negligence of the Hospital in not having him examined by an ophthamalogist in view of the danger involved, (3) the negligence of the Hospital in failing to examine him at regular intervals, and (4) the negligence of the Hospital in failing to advise his parents thát he had been overexposed to oxygen. Because of these negligent acts on the part of the Hospital, plaintiff-appellant contends that his eyes progressively deteriorated until November 17, 1969, when the examination and operation under general anesthetic was finally performed and his parents were finally told he had an eye problem.

As we have stated hereinbefore, we do not believe the principles applicable to statute of limitations problems are controlling here. The reasons behind the enactment of statutes of limitation and the rule of prospective application are not the same. The former are statutes of repose enacted for the purpose of preventing the assertion of stale claims, Thatcher v. DeTar, supra, 173 S.W.2d 1. c. 761(1), whereas, the doctrine of prospectiveness is applicable to those situations where retrospective application of a change in the law by reason of judicial interpretation would impose a hardship on one of the parties to the appeal because of their reliance on the law as it was declared prior to the decision bringing about the change. Abernathy v. Sisters of St. Mary’s, supra.

Viewed in this light, we conclude that the term “arise” as used in Abernathy, supra, means the time at which the negligent act complained of took place. We so conclude, although we do not suggest that the tort itself was committed in reliance on the substantive law of torts, i.e., the Hospital did not act negligently in reliance on the doctrine of charitable immunity. Molitor v. Kaneland Community Unit District No. 302, supra.

In so holding we do not however dispose of the question whether the trial court erred in sustaining defendant-respondent Hospital’s motion for summary judgment, because we have not as yet determined when the alleged negligent act or acts of the Hospital, if any, occurred.

The Hospital argues that it occurred, if at all, when the oxygen was administered to plaintiff-appellant, i. e., May 19-24, 1969. Plaintiff-appellant contends, on the other hand, that the Hospital had a continuing duty towards him because Dr. Boles continued treating him and he was readmitted to the Hospital on November 16, 1969, and wasn’t discharged until November 29, 1969, and yet his parents were not advised of his blindness until November 17, 1969, and were never informed directly by either Dr. Boles nor the Hospital of the cause of his blindness. If the Hospital is correct in its contention, it is clear, in our opinion, that the negligence causing plaintiff-appellant’s injuries took place prior to November 10, 1969, the day on which the abrogation of the charitable immunity doctrine became effective. If, on the other hand plaintiff-appellant’s contention is correct, and if the Hospital’s negligence, if any, extended beyond the effective date of Abernathy v. Sisters of St. Mary’s, supra, and if it was a proximate or contributing cause to plaintiff-appellant’s injuries, we are then of the opinion for reasons hereinafter stated that the trial court erred in sustaining the Hospital’s motion for summary judgment and the judgment of the trial court entered thereon should be reversed and the cause remanded to the trial court for further proceedings.

The Court in Abernathy, unlike the decisions abrogating the governmental immunity doctrine, did not delay the effective date of the decisions “(i)n order that an orderly transition be made, that adequate financial planning take place, that governmental units (charitable institutions) have time to adjust their practices and that the legislature be afforded an opportunity to consider the subject in general, . . ” Jones v. State Highway Commission, 557 S.W.2d 225, 231(11) (Mo.1977), Prewitt v. Parkway School District, 557 S.W.2d 232 (Mo.1977), and Wheeler v. St. Clair County Hospital District No. 1, 557 S.W.2d 233 (Mo.1977). In fact, in Abernathy, supra, the Court clearly refused to delay the effective date in the change of the lav/ to permit charitable institutions to make an “orderly transí-' tion” or to give the legislature an opportunity to consider the subject. 446 S.W.2d 1. c. 606(4).

Defendant-respondent argues that the cause of action in this case arose at the time of the breach of duty, i. e., prior to November 10, 1969, when the doctrine was still available to the Hospital and when the oxygen was administered to plaintiff-appellant. In support of this argument, the Hospital refers to the affidavit of Dr. Kolker that plaintiff-appellant had retrolental fibropla-sia on November 5,1969, and prior to thereto; that, therefore, the damage was clearly capable of ascertainment prior to November 10, 1969, and the cause of action “arose” prior to the effective date of the Abernathy decision.

We believe that it is abundantly clear that plaintiff-appellant has alleged that the retrolental fibroplasia was the direct result of overoxygenation of the infant while he was in the isolette between May 19, and May 24, 1969. However, we also discern from a reading of the brief of plaintiff in opposition to defendant’s motion for summary judgment the plaintiff-appellant contends that by reason of the failure of the Hospital to advise the parents of the symptoms to be observed, the excessive oxygen administered to him while confined in the isolette in the Hospital “had begun an insidious course of visual deterioration known as retrolental fibroplasia which in the months ahead would, as it progressed, cause detachment of the retinas resulting in blindness.” And later in the brief filed in the trial court, he argues: “a surgical attempt was made to prevent total detachment of the left retina.” In the deposition of Ruth Ann Hill, plaintiff-appellant’s mother, she testified that he was admitted to the Hospital by arrangement of Dr. Kolker so that Dr. Boniuk could examine him under an anesthetic on or about November 16, 1969, during which admission surgery was performed on plaintiff-appellant’s left eye for a detached retina. She further testified that no operation was performed upon the right eye because plaintiff-appellant, she learned after the operation, was totally blind in that eye. According to Mrs. Hill the operating surgeon explained to her and her husband, after this surgery, that the operation would be performed to preserve the light perception that he had in the left eye.

Plaintiff-appellant has alleged that the Hospital was negligent in failing to inform his parents of the diagnosis of his eye difficulties which commenced with the initial hospitalization immediately following his birth and the concealment from them of the symptoms to look out for by reason of his exposure to excess oxygen while confined to the isolette. We also gather from his argument that it is his position that this negligence combined with the negligence of the treating physician, Dr. Boles, and the intern in the employ of the Hospital, Dr. Robert Greenwood, was the proximate cause of the loss of the sight in his right eye and the diminished vision in the left eye which, had the parents been warned as to what symptoms to look for, would not have taken place.

We further conclude, from plaintiff-appellant’s petition, the portions of the deposition of Mrs. Hill, his mother, and the argument in his brief in the trial court that there is a fact issue which must be resolved, i. e., whether the negligence of the Hospital, if such it was, was a continuing failure to perform a duty owed to the plaintiff-appellant which culminated in the loss of vision in the one yes and diminished vision in the other, a condition which could have been avoided or lessened had his parents been advised of the nature the “invidious” process of deterioration referred to by plaintiff in his brief in the trial court.

If, upon remand, the plaintiff-appellant can adduce evidence to support his contention that the continuing negligence of the Hospital caused or contributed to cause the loss for which he now seeks damages, and that said negligence continued to a date beyond November 10, 1969 when the doctrine of charitable immunity was abrogated, we are of the opinion that his cause of action would be viable and would not have arisen until such time as the treatments for the disease terminated. Thatcher v. DeTar, supra.

We reverse the judgment of the trial court entered in behalf of the St. Louis Children’s Hospital and remand the cause to the Circuit Court for further proceedings not inconsistent with this opinion.

MORGAN, C. J., and BARDGETT, SEILER and SIMEONE, JJ., concur.

FINCH, Senior Judge, dissents in separate dissenting opinion filed.

DONNELLY and RENDLEN, JJ., dissent and concur in separate dissenting opinion of FINCH, Senior Judge.

WELLIVER, J., not participating because not a member of the court when cause was submitted.

FINCH, Senior Judge,

dissenting.

I respectfully dissent from that portion of the principal opinion which reverses the judgment in favor of St. Louis Children’s Hospital and remands the case for a new trial on plaintiff’s claim against the hospital.

Plaintiff’s petition asserts that excessive amounts' of oxygen were administered between the dates of May 19 and May 24, 1969, while plaintiff was a patient in Children’s Hospital under the care of Dr. Boles. As a result, says plaintiff, he suffered retro-lental fibroplasia which caused total blindness in plaintiff’s right eye and the loss of all sight in the left eye except for simple light perception. Recovery therefor is sought from both the doctor and the hospital.

Plaintiff was discharged from the hospital on June 26,1969 and was not back in the hospital until readmitted on November 17, 1969, for examination under anesthesia by Dr. Boniuk. At that time Dr. Boniuk performed an operation on the left eye to prevent total detachment of the retina. Only simple light perception remained at that time in the left eye. No operation was performed on the right eye because plaintiff had no sight in that eye.

During the time plaintiff was in Children’s Hospital in May and June of 1969, the doctrine of charitable immunity existed in this state. Under that doctrine hospitals such as Children’s Hospital were immune from liability for tort. Hence, even if excessive oxygen was administered by the hospital as alleged, Children’s Hospital was not liable therefor. Such charitable immunity continued to exist in 1969 until this court abolished the doctrine in Missouri on November 10, 1969, in the cases of Abernathy v. Sisters of St. Marys, 446 S.W.2d 599 (Mo. banc 1969) and Garnier v. St. Andrew Presbyterian Church of St. Louis, 446 S.W.2d 607 (Mo. banc 1969). Those cases abolished the doctrine prospectively only. Thereafter, there could be recovery against those previously immune only as to causes of action arising after November 10, 1969.

The principal opinion recognizes that the doctrine was abolished only prospectively and that when Abernathy speaks of permitting recovery in causes of action arising after November 10,1969, it has reference to causes of action wherein the negligent act for which recovery is sought occurred after November 10, 1969. However, having so recognized, the principal opinion then proceeds to hold that the trial court erred in entering summary judgment in favor of the hospital on the theory that recovery against Children’s Hospital was barred by the doctrine of charitable immunity. It so holds on the basis of plaintiff’s contention that the hospital had a continuing duty to advise plaintiff’s parents that as a result of the excessive oxygen administered there “ ‘had begun an insidious course of visual deterioration known as retrolental fibroplasia which in the months ahead would, as it progressed, cause detachment of the retinas resulting in blindness.’ ” Under such theory the hospital had a continuing duty on November 11, 1969, to so advise plaintiff’s parents and if the jury finds that it breached that duty and such breach caused or contributed to cause plaintiff’s damage, then plaintiff can recover against Children’s Hospital.

I cannot concur in such a conclusion. In the first place it imposes a duty on the hospital which is unrealistic and which the hospital should not have. By its holding, the principal opinion thrusts the hospital in the middle of the physician-patient relationship on the theory that the hospital, as well as the doctor, had a duty to examine plaintiff and ascertain his condition and the likely progress of his condition and to advise plaintiff’s parents thereof. It cites no case which has imposed such a duty. We should not do so now. People are admitted to hospitals as patients of a doctor. He examines and advises the patient and prescribes the treatment to be administered. The hospital does not diagnose patients’ ailments or give them medical advice or prescribe treatment. To do so would constitute the practice of medicine and hospitals are not authorized to do those things.

Absent this theory of a right of recovery based on a continuing duty of the hospital to diagnose and advise plaintiff’s parents as to his condition and likely progress and the need for them to act, there is no basis for recovery against the hospital. All of the acts of the hospital of which plaintiff complains occurred while plaintiff was in the hospital in May and June, 1969. The doctrine of charitable immunity, then in effect, prevents recovery therefor.

Even if I could agree that hospitals should have this new duty to diagnose, consult and advise which the principal opinion imposes, I still could not concur in the principal opinion. It seems to hold that if, on remand, there is evidence that the hospital breached this continuing duty to advise plaintiff’s parents, and the jiiry finds that such breach caused or contributed to cause the loss for which recovery is sought, the jury may return a verdict for plaintiff against both the doctor and the hospital for all of plaintiff’s loss. The result would be to permit recovery from the hospital for damages incurred during a period of time beginning when oxygen was first administered in May, 1969, when without question the doctrine of charitable immunity made the hospital immune from liability.

Under Abernathy the hospital could be liable only for damages resulting from the alleged negligent act of failing on November 11, 1969, to advise plaintiff’s parents. Only damages occurring after breach of the duty on November 11,1969, would be recoverable. A theory of a continuing duty to advise cannot result in liability of the hospital for things which occurred and injury which resulted during a time when the hospital was immune from such liability. Clearly, Abernathy did not so intend. On the contrary, it clearly was intended to authorize recovery only for damages flowing from things occurring subsequent to November 10, 1969.

It is obvious that all of plaintiff’s damage occurred before November 11, 1969. In October plaintiff’s parents brought him back to Dr. Boles. He referred plaintiff to Dr. Kolker, an ophthalmologist. He found on November 5, 1969, the plaintiff then had retrolental fibroplasia. Dr. Kolker referred plaintiff to Dr. Boniuk, another ophthalmologist, who attempted unsuccessfully on that date to examine plaintiff. He then scheduled an examination of plaintiff under anesthesia for November 17, 1969. After the examination, Dr. Boniuk operated on plaintiff’s left eye. On that date plaintiff was blind in the right eye and had only light perception in the left eye. Thus it is evident that the damage to plaintiff’s eyes had already occurred by November 11, 1969.

In support of the decision to reverse and remand the principal opinion cites and relies on Thatcher v. DeTar, 351 Mo. 603, 173 S.W.2d 760 (1943). That is a case involving interpretation and application of a statute of limitations. In such a situation liability exists for damages caused by negligence but for a statute of limitations which may bar the right of recovery. If the statute of limitations is tolled the pre-existing liability continues to exist. In contrast, where, as here, a pre-existing immunity such as charitable immunity is abolished prospectively, there is no pre-existing liability. Therefore, prospective abolition cannot result in continuation of a pre-existing liability. There was none. Hence, principles applicable to statutes of limitations are not controlling.

The principal opinion recognizes at page 150 that such principles are not applicable. However, having done that, it proceeds on page 152 to cite Thatcher v. DeTar, supra, as authority supporting remand of the case for determination as to possible recovery from the hospital for the loss for which damages are sought. In so holding the opinion says, “If, upon remand, plaintiff-appellant can adduce evidence to support his contention that the continuing negligence of the Hospital caused or contributed to cause the loss for which he now seeks damages, and that said negligence continued to a date beyond November 10, 1969, when the doctrine of charitable immunity was abrogated, we are of the opinion that his cause of action would be viable and would not have arisen until such time as the treatments for the disease terminated, Thatcher v. DeTar, supra.”

I am not certain that I know what that statement means. I think it says that on the authority of Thatcher the accrual of the right to sue was postponed until after November 10, 1969, and that in such a situation there can be recovery for all of plaintiff’s damages, not just any occurring after charitable immunity was abolished on November 10, 1969.

If my interpretation is correct, the principal opinion is contrary to what this Court held in Abernathy about prospective application of the abolition of the doctrine. In cases decided subsequent to Abernathy and Gamier this Court reiterated its holding with reference to prospective application, refusing to extend the benefit of the abrogation to other cases already pending when the doctrine was abolished. Bodard v. Culver-Stockton College, 471 S.W.2d 253 (Mo.1971); Burns v. Owens, 459 S.W.2d 303 (Mo.1970). See also Swinford v. Bliley, 513 S.W.2d 381 (Mo.1974); Varnal v. General Hospital and Medical Center, 502 S.W.2d 332 (Mo.1973). It would be completely inconsistent with all of those decisions to now allow this plaintiff to recover for injuries and damages which occurred and accrued prior to November 10, 1969.

If, on the other hand, my interpretation of the language of the opinion is incorrect and it is intended to permit recovery only for any damage shown by the evidence to have resulted after November 10,1969, as a result of a failure to advise and warn on November 11, 1969 then the language of the opinion should be clarified so as to clearly and explicitly so state. It is possible to state such a ruling so that neither the trial court nor counsel will have any doubt that this is what the Court means. It doesn’t make that clear as it is presently written and it is obvious from plaintiff’s brief filed in this Court after the opinion of the Court of Appeals had been written that plaintiff does not so interpret the language and that plaintiff will seek on retrial to recover all damages shown to have occurred from and after the time oxygen was administered in May of 1969.

For the reasons hereinabove stated, I would affirm the judgment in favor of Children’s Hospital, reversing and remanding for retrial only as against Dr. Boles.


author: WELLIVER, Judge.

text:
    ELECTRICAL WORKERS, LOCAL NO. 1 CREDIT UNION, Respondent, v. IBEW-NECA HOLIDAY TRUST FUND, Garnishee-Appellant, and Gordon J. Chisholm, Defendant.
    No. 61018.
    Supreme Court of Missouri, En Banc.
    June 27, 1979.
    Rehearing Denied July 17, 1979.

      Christopher T. Hexter, St. Louis, for garnishee-appellant.
    Kenneth J. Feld, St. Louis, for respondent.
   WELLIVER, Judge.

This appeal involves a determination of whether respondent Electrical Workers Local No. 1 Credit Union can properly garnish the appellant IBEW-NECA Holiday Trust Fund pursuant to a judgment obtained by Credit Union against IBEW member Gordon Chisholm. The trial court ruled that the Trust was a proper subject of garnishment. The Trust appealed to the Missouri Court of Appeals, Eastern District, which reversed. On respondent’s motion, we granted transfer of this cause and now decide it as though on original appeal. Mo. Const, art. V, § 10. Although we agree with the trial court and reach a result different from the court of appeals, we use portions of the court of appeals opinion herein without quotation.

The IBEW-NECA Holiday Fund Amended Trust Agreement, originally established in 1966 pursuant to the collective bargaining Agreement between the St. Louis Chapter, National Electrical Contractors Association and Local Union No. 1, International Brotherhood of Electrical Workers, was amended in 1975 to conform to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. The Trust Agreement was continued in the 1976 collective bargaining agreement between the IBEW and the NECA.

The stated purpose of the Holiday Fund Trust Agreement is to provide holiday pay benefits for employees (§ 0.02). (Unless otherwise noted, all section references are to the IBEW-NECA Holiday Fund Amended Trust Agreement). Because of the sporadic nature of the occupation, electrical workers often work for several employer-contractors during a year and therefore frequently do not receive payments for holidays. The Holiday Fund Trust Agreement is designed to provide such payments.

Under the Agreement, for each Plan Year, each employer is to contribute to the fund an amount equal to 8½% of his gross monthly labor payroll paid to the employees in the bargaining unit represented by the Union (§ 2.01 and § 6.06 of Agreement between St. Louis Chapter NECA and Local Union No. 1, IBEW, dated June 1, 1976), and also to submit to the trustees, report forms containing the name and social security number of each employee, the hours worked and wages earned by employees for whom contributions are due and the amount of contributions due for the period covered (§ 2.02). Employer contributions to the fund are to be managed and held by a Board of Trustees comprised of three employer (NECA) trustees and three employee (IBEW) trustees (§§ 1.01, 4.01). The trustees also have the authority to invest the funds in their control (§ 4.05). From this fund, eligible employees are to receive both annual and quarterly benefits during any given Plan Year under the Agreement.

To be eligible for these payments, an employee must have worked a minimum of 100 hours during a Plan Year (§ 3.11) and must file a timely application for benefits (§§ 3.15, 3.18). “Each eligible employee shall be entitled to an Annual Benefit in the amount of 4% of the Employee’s gross earnings on which employer contributions have been received in his name by the Trustees for the Plan Year.” (§ 3.14) (Emphasis added.)

As outlined in § 3.17 of the Trust Agreement, the formula for the quarterly benefit is somewhat more complex, taking into account all contributions for quarterly and annual benefits for the Plan Year, investment and other income of the fund, all expenses of the fund including tax liabilities, and any gross earnings on which contributions to the fund have been received for all employees. The result is a quarterly benefit to be paid to the employee in four equal installments during the year following the Plan Year (§ 3.19). Nevertheless, under this plan, the amount of the benefits due the eligible employee is based essentially on his gross earnings for and the hours worked during the Plan Year. Between the two types of payments, the entire fund is paid out annually.

On September 10,1976, respondent Credit Union requested execution and garnishment against the Trust as garnishee of Gordon Chisholm, a member of IBEW, to satisfy a judgment previously obtained against Chisholm. The Summons to Garnishee was served on September 14, 1976, and was returnable on October 11, 1976.

In response to respondent’s interrogatories concerning any money or credits of Chisholm in the possession of the garnishee Trust, the garnishee indicated that under § 5.02 of the IBEW-NECA Holiday Fund Amended Trust Agreement, respondent was not entitled to take anything from this fund as a creditor of Chisholm. Section 5.02, which is essentially a standard “spendthrift” provision of the Trust, provides as follows:

Section 5.02 — No Creditor Rights. No benefits or money payable from this Fund shall be subject to any manner of anticipation, alienation, sale, transfer, assignment, pledge, encumbrance by any person claiming or entitled to benefits hereunder; nor shall any benefit payment nor the right to any benefit payment or any interest in this Fund be subject to seizure by any creditor of any person entitled to an interest herein under any execution, writ, or proceedings at law or in equity.

In its Denial of Garnishee’s Answer, respondent asserted that garnishee was indebted to Chisholm during the garnishment period and that § 5.02 of the Trust Agreement was not a bar to respondent’s right of recovery. The circuit court ruled in the garnishment proceeding that the amount of $92.14, representing one installment of Chisholm’s quarterly benefit, became due and payable by garnishee to Chisholm during the period of the garnishment and that the provisions of the Holiday Fund Trust Agreement were not a bar to recovery of that amount by respondent. Garnishee appeals from that ruling.

Although the garnishee Trusts devotes the first point of its brief to assessing the general validity of spendthrift trust provisions in Missouri, the specific crucial issue in this case lies elsewhere. Spendthrift provisions in trusts are clearly valid in Missouri, and such provisions may preclude creditors from seizing the interests of the beneficiaries of these trusts. Bixby v. St. Louis Union Trust Co., 323 Mo. 1014, 22 S.W.2d 813, 820 (1929); Muffin v. Trolinger, 237 Mo.App. 939, 179 S.W.2d 484, 488 (1944); Gentemann v. Dyer, 140 S.W.2d 75, 78 (Mo.App.1940). However, the creation and application of spendthrift trusts is not unlimited; the spendthrift provision should be upheld only as long as it contravenes neither a statute nor public policy. Partridge v. Cavender, 96 Mo. 452, 9 S.W. 785, 786 (1888); In re Moorehead’s Estate, 289 Pa. 542, 137 A. 802, 806 (1927). Therefore, the crucial question in the instant case is whether the utilization of the spendthrift clause in the Holiday Fund Trust is antagonistic to a statute or public policy of this state.

Before reaching this question we must deal with the garnishee’s claim that Missouri statutes and public policy relating to garnishment of payments made under employee benefit plans had been preempted by the enactment of ERISA. We note initially that this is not a situation in which state laws are preempted because of a conflict with federal laws. ERISA clearly preempts the rights of creditors to satisfy a judgment from payments made under an employee pension benefit plan. The Trust in this case is not a pension benefit plan. Therefore, resolution of the preemption issue turns on an interpretation of the general preemption section of ERISA, 29 U.S.C. § 1144, which provides in part:

(a) Except as provided in subsection (b) of this section, the provisions of this sub-chapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. This section shall take effect on January 1, 1975.

In support of its claim that state law is preempted by § 1144(a), garnishee cites Azzaro v. Harnett, 414 F.Supp. 473 (S.D.N.Y.1976). In that case the New York State Insurance Department received an inquiry from a participant in a union pension plan as to his benefit status. The trustees of the pension found obtained an injunction to prevent the Superintendent of Insurance from pursuing the Department’s inquiry into the matter. The court noted that ERI-SA contained provisions allowing participants to inquire directly of the plan administrator as to benefit status (29 U.S.C. § 1025) and placing investigatory power in the Secretary of Labor (29 U.S.C. § 1134). The case stands for the proposition that states may not continue to regulate and investigate pension plans when ERISA provides its own regulatory scheme. However, it does not deal with the effect of § 1144 on state laws which do not purport to expressly regulate employee benefit plans. The question we must answer is whether the Missouri state laws and policies we might wish to apply “fall into [the] narrow category of laws which affect employee benefit plans but which do not relate to them within the meaning of [§ 1144(a)].” Stone v. Stone, 450 F.Supp. 919, 932 (N.D.Cal.1978) (Emphasis supplied.)

Federal courts addressed with the question of what state laws are preempted because they “relate to employee benefit plans” have interpreted 29 U.S.C. § 1144(a) broadly to preempt much state legislation. See National Carriers’ Conference Committee v. Heffernan, 454 F.Supp. 914 (D.Conn.1978) (preemption of state tax imposed on employee welfare benefit plans); Standard Oil Company v. Agsalud, 442 F.Supp. 695 (N.D.Cal.1977) (preemption of Hawaii Prepaid Health Care Act which required all employees to be insured by plan covering specific illnesses); Wayne Chemical, Inc. v. Columbus Agency Service Corp., 426 F.Supp. 316 (N.D.Ind.1977), modified 567 F.2d 692 (7th Cir. 1977) (preemption of Indiana statute extending for disabled dependents the coverage under a group medical insurance policy beyond the limiting age in the policy); Hewlett-Packard Co. v. Barnes, 425 F.Supp. 1294 (N.D.Cal.1977) (preemption of California’s Knox-Keane Health Care and Service Plan Act regulating health care plans in the state). In interpreting this section broadly, they have relied on the legislative history of § 1144(a) during which the conference committee rejected both House and Senate versions which expressly limited the scope of preemption to areas expressly covered by the bill in favor of a broader version superseding “all state laws that relate to any employee benefit plan.” They also place emphasis on comments made during the floor debate of the bill such as that of Senator Javits explaining the change was to avoid “the possibility of endless litigation over the validity of State action that might impinge on Federal regulation . . . and potentially conflicting State laws hastily contrived to deal with some particular aspect of private welfare or pension benefit plans not clearly connected to the Federal regulatory scheme.” 120 Cong.Rec. 29942 (1974).

Other courts have been reluctant to invalidate so much state legislation when the intent of Congress is not unmistakably clear. These courts have concluded that § 1144(a) “was not . . designed to preempt any state law with even the most tangential relation to ERISA.” Stone v. Stone, 450 F.Supp. 919, 923. In Stone, it was held that California’s community property laws are not preempted by ERISA insofar as they may affect employee benefit plans by requiring plans to pay part of a participant’s benefits to his divorced spouse. This narrower interpretation of § 1144(a) preemption has been applied recently to permit state discrimination laws to indirectly regulate the content of employee benefit plans by requiring plans to offer coverage for pregnancy disability. Bucyrus-Erie Co. v. Department of Industry, Labor and Human Relations, 453 F.Supp. 75 (E.D.Wis.1978); United Federation of Teachers Welfare Fund v. Kramarsky, 451 F.Supp. 333 (S.D.N.Y.1978); Gast v. Oregon, 36 Or.App. 441, 585 P.2d 12 (1978).

We believe the approach taken by the court in Gast is persuasive. There the court was urged to interpret § 1144(a) broadly to preempt an Oregon statute that required employers or labor organizations providing medical and disability benefits to include coverage for pregnancy benefits. The court noted that statements regarding preemption during the floor debate on ERISA were ambiguous, as evidenced by comments by Representative John Dent and Senator Harrison Williams, Jr., that the only purpose of the preemption clause was to eliminate “the threat of conflicting or inconsistent state and local regulation of employee benefit plans.” 120 Cong.Rec. 29933 (1974); 120 Cong.Rec. 29917 (1974). The court found no indication in the legislative history of ERI-SA that Congress intended to preempt areas of state regulation not addressed by ERISA or to leave such areas totally unregulated, and upheld the validity of the state statute even though it indirectly regulated the content of some employee benefit plans.

Title I of ERISA contains five parts. Part one deals with the reporting and disclosure requirements for both pension and welfare benefit plans. Parts two and three apply to only pension benefit plans and establish vesting and funding requirements. Part four sets forth fiduciary standards for both types of plans. Finally, part five contains administrative and enforcement provisions for both types of plans. In summary, ERISA’s regulation of welfare plans is not nearly so comprehensive as that of pension plans. It is primarily confined to establishing minimum standards for reporting, disclosure and fiduciary responsibility. ERI-SA’s anti-assignment and alienation provision, 29 U.S.C. § 1056(d)(1) is contained in part two and applies exclusively to pension plans, (note 2, supra). The enforcement of state court money judgments by creditors is a valid area of state concern, and is one which is totally unregulated by ERISA with respect to welfare plans. We decline to interpret ERISA to require preemption of Missouri laws in this area, “in the absence of any legislative declaration that Congress intended to create an enormous regulatory vacuum in areas that traditionally have been matters of vital state concern.” Gast, 585 P.2d at 23.

We turn now to a consideration of whether the use of a spendthrift clause in this Holiday Fund Trust violates Missouri statutes or public policy. Plaintiff contends that the payments to employees made from the Trust are wages or earnings, and that to shelter those payments from garnishment contravenes § 525.030, RSMo Supp. 1975. We believe that the payments in this case do constitute wages. A paid vacation or pay accumulated by an employer without the interposition of a trust is generally regarded as additional earnings of an employee. Laborers Union Local 1298 of Nassau and Suffolk Counties Vacation Fund v. Frank L. Lyon & Sons, Inc., 66 Misc.2d 1042, 323 N.Y.S.2d 229, 235 (Sup.Ct.1971); Annot., 30 A.L.R.2d 351. The effect of the use of the trust as a device for collection and allocation of holiday or vacation funds is less clear. Although contributions to a welfare fund are often not technically characterized as wages, they have been held to represent a part of the consideration being given to the workers for their services and have in certain circumstances been regarded as having the same legal effect as wages. Annot., 88 A.L.R.2d 493, 536.

Several cases have considered the question of the nature of the payments involved in employee benefit plans in the context of withholding obligations and priority under the Bankruptcy Act. Educational Fund of Electrical Industry v. United States, 426 F.2d 1053 (2d Cir. 1970), dealt with a fund administered by the Vacation Committee of the Joint Industry Board, a fund into which the employers contributed 4% of the weekly production payroll. Payments were made from the vacation fund to the educational fund to be paid employees for voluntarily attending a week long educational schoól set up for employees. Noting that the payments came from the employers and represented “a portion of the agreed upon remuneration for services performed by the employees within the intent of Section 3401(a), just as do payments from pension and vacation funds,” the court held that such payments were properly characterized as wages for withholding purposes. Id. at 1056.

In In re Otto, 146 F.Supp. 786 (S.D.Cal.1956), employer contributions were made to a welfare fund based on hours worked by employees, the fund having been created to provide medical, hospital and surgical benefits and life insurance for employees and their dependents. In finding that such payments were wages for purposes of wage priority under § 64 of the Bankruptcy Act, 11 U.S.C. § 104(a)(2), the district court stated that “[a]n employer’s contributions to a welfare fund for the benefit of employees and others, payable in performance of an obligation of the employer under a collective bargaining agreement, and measured on the basis of a certain amount per hour worked by employees, is but another method of computing and paying compensation for services rendered . . . .” Otto, 146 F.Supp. at 789. However, this resolution was aided by the fact that the employer contributions to the fund came from setting aside specified portions of cost-of-living wage increases obtained after collective bargaining.

Under the collective bargaining agreement in Sulmeyer v. Southern California Pipe Trades Trust Fund, 301 F.2d 768 (9th Cir. 1962), the employer was required to pay monthly 7½% of the gross pay of each employee to the Vacation and Holiday Benefit Fund, administered jointly by the representatives of the Contractors Association and the Union. The contractor made all necessary legal withholdings prior to the payment to the fund. The court held that for the purposes of the Bankruptcy Act these contributions were wages because they were keyed to hours worked, the employees had a vested right in the contributions paid and the payments were to be made by the employer only after he had made all the necessary withholdings.

The present Holiday Fund Trust bears several similarities to the trusts in the three cases just cited. Both the contributions made by the employers to and the payments made to the employees from the trust fund are proportioned to the hours worked by the employees, as were the contributions in both Otto and Sulmeyer.

Secondly, to qualify for payments from these funds, an employee needs only to have worked a minimum of 100 hours for NECA employers during the Plan Year, and have filed a timely application for the benefits offered under the Agreement. Once these eligibility requirements are met, the employee, or if he is deceased, the employee’s “beneficiary,” has a right to receive the accrued benefits for that year (§ 3.04). The trustees have no discretion as to either the fact or the amount of payments. The formulas for the benefits are to be applied so as to deplete the funds available for the benefits, to be paid at the close of each Plan Year (§ 3.05). The fund is one providing benefits which the employees are certain to receive, and not one providing benefits “which might or might not be obtained by the wage earner.” Sulmeyer, 301 F.2d at 771.

A third aspect of the Holiday Trust Fund indicating that these payments are wages may be found in § 3.03 of the Agreement, which requires the trustees withhold from payments to employees all Federal, State and City taxes, as well as pay from the fund any employer liability for FICA and FUTA. “Such deductions are indicia of wages.” Sulmeyer, 301 F.2d at 771.

Finally, the general purpose of the Holiday Fund Trust “to provide holiday pay benefits for employees” supports the characterization of these benefits as wages or earnings. The benefits conferred through the fund substitute for “paid holidays” received by those who work for a single employer, and should carry the same designation as wages or earnings. The fund and the payments through it are part of the remuneration agreed upon by the parties in their collective bargaining agreement. Educational Fund of Electrical Industry, 426 F.2d at 1056. The fact that the employee is not entitled to benefits until he has worked 100 hours does not remove these payments from the scope of the statute providing for garnishment of wages or earnings. In the light of the cases we have discussed and the various factors which are characteristic of wages, we conclude that the payments in this case are in the nature of wages or earnings within the meaning of § 525.030, RSMo Supp.1975.

The characterization of these payments as wages or earnings does not preclude the fund Agreement from being a trust under the law of Missouri. Under the Agreement there are identified beneficiaries, trustees, a sufficiently described and identifiable trust res and an actual delivery of the trust corpus. The requisites of an express trust in Missouri are thereby met. Potter v. Winter, 280 S.W.2d 27, 33 (Mo.1955). Other factors further define the nature of this fund as a proper trust, and the payments therefrom to employees as valid “trust interests.” The Agreement in § 5.01 provides that the title to all property in the fund is to be vested in and remain exclusively with the trustees until payment to the employees. The trustees have complete control of the fund and have power to make investments and the income from such investments are added to the fund from which employee benefits are paid. The trustees have the exclusive authority to bring suit to enforce the employers’ obligation to contribute to the fund and to distribute benefits to the employees. The fact that the corpus of the trust is comprised of payments from employers does not by itself render the Holiday Fund Trust contrary to state statute or public policy. The Trust is valid.

Conceding both the characterization of the payments as wages and the general validity of the Trust, the remaining issue is whether the spendthrift clause is contrary to statute or public policy.

Respondent contends that § 525.-030 RSMo 1975 Supp., authorizes the garnishment of wages and earnings and that a spendthrift provision which purports to prevent such garnishment is contrary to that statute and is thereby contrary to public policy. We agree. Section 525.030 sets the maximum amounts of a judgment debtor’s wages which may be garnished. Extending greater protection then that afforded by the statute to some wage earners, but not to others, would violate the intent of that statute. The cases cited by the garnishee Trust as upholding spendthrift clauses in other jurisdictions are not persuasive. Most of these deal with pension plans, and while payments made under a pension plan are specifically included within the scope of § 525.030, we recognize that Missouri laws affecting creditors’ rights to such payments are preempted by ERISA, (note 2, supra).

Furthermore it is hornbook law that a person may not create a trust for his own benefit and include a provision restraining the rights of his creditors. G. G. Bogert and G. T. Bogert, Handbook of the Law of Trust, § 40 at 154-55 (5th Ed. 1973). Restatement (Second) of Trusts § 156 (1959). This has long been the law in Missouri. Jamison v. Mississippi Valley Trust Co., 207 S.W. 788 (Mo.1918). In this context, we find no justification for permitting a person to do indirectly that which we cannot do directly. If a spendthrift clause such as this were to be held enforceable, who is to say that all wages of employees could not be sheltered from the claims of creditors by similar agreements.

The spendthrift clause is invalid. This does not affect the validity of the Trust Agreement itself, which we recognize as having been created for a valid purpose.

Judgment affirmed.

All concur.

      . The Agreement is also consistent with § 302 of the Labor-Management Relations Act of 1947, as amended, 29 U.S.C. § 186.

      . ERISA’s anti-assignment or alienation clause, 29 U.S.C. § 1056(d)(1), which applies only to pension plans, provides that “[e]ach pension plan shall provide that benefits provided under the plan may not be assigned or alienated.” This has been authoritatively interpreted to prevent creditors from reaching employees’ interests under these plans. See Treas.Reg. § 1.401(a)-13(b)(l), reported in 43 Fed.Reg. 6942 (1978), which states that “a trust will not be qualified unless the plan of which the trust is a part provides that benefits provided under the plan may not be anticipated, assigned, . alienated or subject to attachment, garnishment, levy, execution or other legal or equitable process.” This thus requires the use of a spendthrift clause in employee pension benefit plans. Even such a clause, however, will not shelter pensions from valid family support claims. American Telephone and Telegraph Co. v. Merry, 592 F.2d 118 (2d Cir. 1979); Stone v. Stone, 450 F.Supp. 919 (N.D.Cal.1978).

      . Cases allowing indirect regulation of benefit plans by state insurance and banking laws are distinguishable. Wadsworth v. Whaland, 562 F.2d 70 (1st Cir. 1977), cert. denied, 435 U.S. 980, 98 S.Ct. 1630, 56 L.Ed.2d 72 (1978); Old Stone Bank v. Michaelson, 439 F.Supp. 252 (D.R.I.1977). These cases were decided under 29 U.S.C. § 1144(b)(2)(A) which exempts from preemption state laws regulating insurance, banking or securities.

      . Section 525.030, RSMo Supp.1975 provides in pertinent part:
      “2. The maximum part of the aggregate earnings of any individual for any workweek, after the deduction from those earnings of any amounts required by law to be withheld, which is subjected to garnishment may not exceed (a) twenty-five percentum, or, (b) the amount by which his aggregate earnings for that week, after the deduction from those earnings of any amounts required to be withheld by law, exceed thirty times the federal minimum hourly wage prescribed by section 6(a)(1) of the Fair Labor Standards Act of 1938 in effect at the time the earnings are payable, or (c) if the employee is the head of a family and a resident of this state, ten percentum, whichever is less.

      The term ‘earnings’ as used herein means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.”

      . The court also points out that “in the absence of specific exception, employers’ health and welfare contributions have been held to constitute wages within the meaning of: the Labor Relations Act, as amended by the Labor-Management Relations Act of 1947, 29 U.S.C.A. § 151 et seq., . . . the Social Security Act, and the Federal Employment Tax Act, 26 U.S.C.A. (I.R.C.1939) § 1426 . . Otto, 146 F.Supp. at 789.

      . While it is the trustees who withhold rather than the employers, we do not consider this factual difference between Sulmeyer and the present case to be significant. Under § 3.03 of the IBEW-NECA Holiday Fund Trust Agreement, “[t]he Trustees shall withhold from payments made to employees, all required Federal, State and City taxes. The Trustees shall pay from the Fund any Employer liability for the Federal Insurance Contributions Act or the Federal Unemployment Tax Act (if any) on benefits paid.” (Emphasis added.) Treasury Regulation § 31.3401(d)-1(f), which implements the provisions for withholding in the 1954 Internal Revenue Code, as amended, 26 U.S.C. § 3401, provides that a trust is an “employer” where wages, such as certain types of pensions and retirement pay, are paid by the trust and the person for whom the services were performed had no legal control over the payment of such wages.

      . The New York Supreme Court identified several such factors in Laborers Union Local 1298 of Nassau and Suffolk Counties Vacation Fund, which dealt specifically with the attempted garnishment of an individual’s share in a vacation fund trust created as a result of a collective bargaining agreement between contractors and a union representing general laborers. The court found that because the payments were a “trust interest” they were not earnings subject to garnishment under New York statutes defining and limiting the scope of spendthrift provisions. While we view the fund in the instant case as a trust interest, the protection of the fund from the reach of participants’ creditors is not warranted under Missouri statutes.