text:
    STATE of Missouri, Plaintiff-Respondent, v. Linda Kay SMOTHERS, Defendant-Appellant.
    No. KCD 26645.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.

      Robert G. Duncan, William E. Shull, Duncan & Russell, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

The defendant appeals from jury tried convictions on counts charging assault with intent to maim, rape, and sodomy. The jury imposed a four-year sentence on the assault charge, a twenty-year sentence on the rape charge, and a twenty-year sentence on the sodomy charge. The sentences run consecutively totaling forty-four years imprisonment. The judgment on each count is affirmed.

The defendant was originally charged with three other defendants on each count. However, a severance was granted, and she was tried separately. The facts of the instant case can be found in State v. Walker, 505 S.W.2d 119 (Mo.App.1973). The defendant in Walker, supra, was one of those originally charged on all counts on the same information in which the instant defendant was charged. Any other facts particularly pertinent to the appeal of this defendant will be described below as necessary.

The defendant asserts three points of error in the trial court. She claims that the court erred in submitting instruction No. 4 because the evidence was insufficient to indicate that the “caustic chemical compound” if any was capable of being a dangerous and deadly weapon likely to produce death or great bodily harm, or that it was used in such a manner. She asserts that instructions 5 and 6 are erroneous because they “improperly, inadequately, and insufficiently, defined those acts necessary before an individual can be found guilty of acting as an aider and abetter . . ..” She also claims the trial court erred in failing to instruct the jury on the lesser included offense of common assault because the evidence warranted an instruction on common assault.

State v. Walker, supra, 1. c. 121, conclusively established that the evidence justified a finding that, used in the manner in which this fire extinguisher was used, it could “cause death or great bodily harm.” The evidence in this case has been compared with that in Walker, and it does not vary in any substantial particular. What was held in Walker must be followed here.

The defendant’s contention that the trial court erred in failing to instruct the jury on the lesser included offense of common assault because the evidence warranted that instruction was a point also raised in Walker, supra, 1. c. 121. Briefly, the evidence shows the defendant in the instant case struck the prosecutrix with a fork over several parts of her body while the rape and sodomy were occurring; the defendant sprayed carbon dioxide fire extinguisher on her while the rape was occurring; defendant burned the prosecutrix with matches after the rape and sodomy had taken place. The evidence shows that much more than a mere offensive touching took place. An instruction on common assault would have been improper under these facts. State v. Walker, supra, 1. c. 122, also rules this point.

The defendant also claims that the court below erred in submitting Instructions 5 and 6 because those instructions “improperly, inadequately, and insufficiently defined those acts necessary before an individual can be found guilty as an aider and abetter . . ..” The defendant objects to the following language contained in both Instructions 5 and 6:

“All persons are equally guilty who are present at or near the scene of an offense and who then knowingly act together with a common intent by aiding, assisting or encouraging in the commission of the offense . . ..”

The defendant complains that this language in each of the instructions “provides absolutely no guidance as to what specific acts or types of acts can be interpreted as aiding, assisting, or encouraging. . The Terms ‘aiding, assisting or encouraging’ are so vague and ambiguous and become so subjective, that jury members are left to flounder amongst a morass of definitions, feelings, and beliefs.”

The thrust of the defendant’s point is that the instructions failed to require the jury to find that the defendant took some type of overt action to further the commission of the offense. The defendant fears that the jury could have convicted her after finding that she merely acquiesced to the commission of the crime. However, the instructions require that the jury find anyone guilty who acted, who acted knowingly, and who acted knowingly with an intent to aid, assist, or encourage the commission of the offense. The instruction required a finding by the jury that the defendant did actually perform an act to aid the commission of the offense. The court faced a similar point of error in State v. Present, 344 S.W.2d 9 (Mo.1961). The court said, 1. c. 12:

“The words ‘did in any way help, aid, and assist’ are complained of. Counsel state that the court should have specified what aiding and helping would have been sufficient, but that, by the use of this ‘indiscriminate’ term, it left the jury to speculate and consider any remote type of help and even to supply to its own ideas.”

In considering the point, the court in Present said, “ . . . the requirement of helping, aiding, and assisting necessarily implied some affirmative act, as contrasted with a mere passive presence.” The court in Present went on to conclude as follows, 1. c. 13:

“It would be virtually impossible to hypothesize in an instruction every possible fact which might constitute a means of help or assistance, and the recital of some but not all of these would certainly be claimed to be objectional.”

The requirement in the instant instruction that the jury find one guilty who acted knowingly with an intent to aid, assist or encourage the commission of the offense, also requires the jury to find more than “passive presence” on the part of the defendant before they find her guilty.

Also, the language and words act, aid, assist, and encourage, are words of common usage. They ■ are not technical language which could mislead or confuse the jury. Because they are words of common usage and because the defendant offered no written instruction to the court further defining those words, the trial court had no duty to define them. State v. Day, 506 S.W.2d 497 (Mo.App.1974).

Also, the language in instructions 5 and 6 which is complained of is substantially similar to the language of MAI-CR 2.10, which makes no attempt to define the words act, aid, assist, or encourage, as they are used in that instruction. There is no error.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: WASSERSTROM, Presiding Judge.

license: Public Domain

text:
    Charles E. GALLOWAY, Respondent, v. FARMERS INSURANCE COMPANY, INC., Appellant.
    No. KCD 27125.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.
    Richard H. Heilbron, Heilbron & Powell, Kansas City, for appellant.
    Edward J. Murphy, Inc., Butler, for respondent.

      Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

The issue here is whether plaintiff may “stack” recovery under the uninsured motorist coverage of two separate automobile policies issued to him by the defendant. The trial court held that he could. Defendant appeals from that ruling.

The facts are undisputed. On May 18, 1972, plaintiff while driving a 1969 Chevrolet owned by him, came into collision with an automobile driven by McMillin. Plaintiff brought a personal injury suit against McMillin based on the latter’s negligence and received judgment for $25,000. McMillin carried no insurance and filed a petition in bankruptcy.

Being unable to satisfy the judgment against McMillin otherwise, plaintiff sought recovery under his own automobile policies. He had purchased two policies from defendant, one on the 1969 Chevrolet involved in the McMillin accident, and another policy on a 1971 Chevrolet also owned by plaintiff. Plaintiff paid a separate premium for uninsured motorist coverage under each policy. There was a slightly lower premium charged under the second policy, but the parties have stipulated that the discount on the second premium was for sales purposes only and had no relevancy to the scope of coverage.

Each policy covered loss caused by an uninsured motorist to an amount of $10,000 per person. Plaintiff filed suit against defendant, asking $10,000 under each of his two policies, for a total of $20,000. Defendant resisted liability for the $20,000 claimed, relying upon Condition 8 contained in each of the two policies and which provides:

“8. OTHER INSURANCE IN THE COMPANY
With respect to any occurrence, accident or loss to which this and any other insurance policy or policies issued to the insured by the Company also apply, no payment shall be made hereunder which, when added to any amount paid or payable under such other insurance policy or policies, would result in a total payment to the insured or any other person in excess of the highest applicable limit of liability under any one such policy.”

Plaintiff contends that the quoted Condition 8 is invalid as being in conflict with § 379.203, RSMo Supp.1971, V.A.M.S. Defendant denies any such conflict but concedes that it must lose if this Condition does in fact contravene the statute. The narrow issue determinative of this case is therefore the validity of the quoted policy provision.

This same basic issue has been before the courts frequently in recent years. Commencing in 1957, the various states commenced the enactment of legislation requiring automobile liability insurance carriers to offer uninsured motorist coverage as a supplement to automobile liability insurance policies. By 1968, 46 states had adopted such statutes, and the inclusion of such coverage now has become mandatory in 15 states. Schermer, Automobile Liability Insurance, § 17.01. With the wide spread of this new type of insurance, it frequently happened that more than one uninsured motorist coverage would apply to the same accident. To cope with that situation, the insurance industry engaged itself in finding and devising policy provisions to limit the maximum amount of permissible recovery to only one coverage. These limiting clauses soon came before the courts for adjudication.

Two basically conflicting lines of authority quickly developed. One line of cases sustained these policy limitations on the ground that the uninsured motorist statute had the purpose of affording a party injured by the fault of an uninsured motorist the same financial protection that would have been available if the tort-feasor had complied with the state’s financial responsibility law. The view of these cases is that policy provisions limiting recovery to a maximum amount equal to that required under the financial responsibility statute, regardless of the number of policies or coverages applicable to the accident, are perfectly consonant with that statutory purpose and that the liability limitation should be given effect. This concept is generally referred to as the “substitute coverage” theory. A secondary ground given in these opinions is that to rule otherwise would be to grant the injured party a windfall where more than one policy applies to the same accident.

However, a heavy majority of the jurisdictions which have passed upon this subject have rejected the approach just outlined and have held that these policy limitations are generally unenforceable as being contrary to the public policy expressed by the uninsured motorist statute. These cases reason that the minimum amount of coverage specified by statute for each policy should not be subject to reduction by private contract. The cases adopting both the majority and minority rules are collected in the extensive annotation “Uninsured Motorist Insurance: Validity and Construction of ‘Other Insurance’ Provisions,” 28 A.L.R.3d 551. These cases and the competing theories are also discussed in Widiss, “A Guide to Uninsured Motorist Coverage,” § 2.58, page 105, et seq.; Tobin, “The Invalidity of the ‘Other Insurance’ Provision: A New Majority,” 17 S.D.L.Rev. 152 (1972); and “Uninsured Motorist Coverage — Validity of Anti-Stacking Provisions and Workmen’s Compensation Set-Off Clause,” 30 Mo.L.Rev. 96 (1974).

The Missouri cases have adopted the majority view. The first case to be noted in this respect is Gordon v. Maupin, 469 S.W. 2d 848, 1. c. 851 (Mo.App.1971), which specifically rejected the substitute coverage theory of uninsured motorist coverage. Then in Steinhaeufel v. Reliance Insurance Companies, 495 S.W.2d 463 (Mo.App.1973), the substitute coverage theory was again rejected as was also the “windfall” argument; and based upon the general majority rule, an “excess-escape clause” in the policy was held contrary to § 379.203 and therefore unenforceable. Still more recently, the St. Louis District of this court in Automobile Club Inter-Insur. Exch. v. Diebold, 511 S.W.2d 135 (Mo.App.1974), reiterated the ruling in Steinhaeufel saying:

“This court has held that where such [uninsured motorist] coverage has been provided, the insurer may not avoid its statutorily imposed liability by insertion in the policy of a limiting clause which restricts the insured from receiving the benefits of that coverage.”

The decision of this court in Webb v. State Farm Mutual Automobile Insurance Co., 479 S.W.2d 148, 1. c. 152 (Mo.App.1972) is not inconsistent with the foregoing Missouri decisions. In holding void a policy provision purporting to reduce the amount due under the uninsured motorist coverage by the amount received under the medical pay coverage of the same policy, this court did state that the public policy established in Missouri by the uninsured motorist statute is that “each insured under such coverage have available the full statutory minimum to exactly the same extent as would have been available had the tort-feasor complied with the minimum requirements of the financial responsibility Law.” However, the issue in Webb was completely different from the one now under consideration. The quoted statement in Webb meant no more than that the insured was entitled to no less than he would have received if the tort-feasor had complied with the financial responsibility law. The authority principally relied upon in Webb was Stephens v. Allied Mutual Insurance Co., 182 Neb. 562, 156 N.W.2d 133 (1968). The Nebraska Supreme Court subsequently in Protective Fire and Casualty Co. v. Woten, 186 Neb. 212, 181 N.W.2d 835, 837 (1970), a stacking case akin to Steinhaeu-fel, also adopted the majority rule as did Steinhaeufel; and in the course of doing so, the Nebraska court distinguished its prior Stephens case as having dealt with a completely different question. For the same reason that distinguished Stephens from Woten, so also Webb is distinguished from Steinhaeufel and the present case.

Defendant seeks to escape the force of Steinhaeufel on a number of grounds. First, it argues that Steinhaeufel involved only and was confined to a consideration of simply one kind of limiting clause which is generally known as an “excess-escape clause.” Defendant points out that a similar clause is contained in the policies issued by it to plaintiff in the present case, but in deference to the Steinhaeufel case, defendant here disclaims any reliance upon its excess-escape clause. It insists, however, that Condition 8 is something distinctly different and is not ruled by Steinhaeufel.

The effort by defendant to whittle down the significance of Steinhaeufel so as to confine it to the particular limiting clause there presented is not persuasive. In the course of the Steinhaeufel opinion the court states at 1. c. 468, “the insurer may not avoid its statutorily imposed liability by insertion in the policy of a limiting clause which restricts the insured from receiving the benefit of that coverage” (emphasis added). The quoted language clearly means that no limiting clause, not just the particular clause there involved, can be given effect to keep the insured from receiving full benefit of the statutorily required coverage. This broad interpretation has been foreshadowed by the decision in French v. Farmers Insurance Company, Inc., 354 F.Supp. 105, 109 (D.C.Mo.1972), in which a plaintiff was covered by two policies issued to her father, both of which had uninsured motorist coverage applicable to her accident. The defendant insurance company in that case (being, incidentally, the very same insurance company which is defendant in the present case) resisted stacking on the basis of an “other insurance” clause (similar to the excess-escape clause in Steinhaeufel) and also upon the same Condition 8 which is urged as a defense in the present case. The French opinion accurately predicted that Condition 8 would be held unenforceable by the Missouri appellate courts:

“However, where the public policy of the state will not permit an ‘other insurance’ excess-escape clause to limit the insured motorist coverage, such states have generally refused to permit that result to be achieved by resort to an ‘other insurance in the company’ clause. Booth v. Seaboard Fire & Marine Insurance Company, 431 F.2d 212 (8th Cir. 1970), (applying Nebraska law). Smith v. Pacific Auto Ins. Co., 240 Or. 167, 400 P.2d 512 (1965); Bryant v. State Farm Mutual Auto Ins. Co., 205 Va. 897, 140 S.E.2d 817 (1965); Sellers v. United States Fidelity & Guaranty Company, 185 So.2d 689 (Fla.1966).
******
“Since we have held that the Supreme Court of Missouri would apply the excess-escape clause of Condition 13 only after adjudicated damages had been recovered, we conclude that a similar and consistent position would be taken vis-a-vis the ‘other insurance in the company’ provisions of Condition 8.”

Defendant next argues that Stein-haeufel is different from the case at bar in that Steinhaeufel involved one policy carried by the host driver and a second policy carried by the injured party, whereas both policies in the present case were issued to and carried by the injured party. Defendant contends that stacking was granted in Steinhaeufel only because the insurance company there attempted to credit against its own liability payments that its insured had received from another source. In further amplification of this contention, defendant argues that an insurer should “have no right, by virtue of its contract with the insured, to interfere with that insured’s separate rights under a different contract” with a different company, but that it does have a right to contractually limit its obligation under its own policies, where more than one. This attempted distinction is without substance. Public policy requires that coverage in the statutory amount under each of the policies stand undiminished by contractual limitation, regardless of whether the policies are issued by the same or different insurers. Numerous cases have permitted stacking of coverage under multi-policies issued by the same company to the same party, despite limiting policy clauses of the type under consideration. State Farm Mutual Automobile Ins. Co. v. Harper, 125 Ga.App. 696, 188 S.E.2d 813 (1972); Clayton v. Alliance Mutual Casualty Co., 212 Kan. 640, 512 P.2d 507 (1973); Van Tassel v. Horace Mann Mutual Ins. Co., 296 Minn. 181, 207 N.W.2d 348 (1973); Boyd v. State Farm Mutual Automobile Ins. Co., 260 S.C. 316, 195 S.E.2d 706 (1973); Boetner v. State Farm Mutual Ins. Co., 34 Mich.App. 510, 191 N. W.2d 741 (1971); Crenwelge v. State Farm Mutual Automobile Ins. Co., 277 So.2d 155 (La.App.1973); Harrington v. Alabama Farm Bureau Mut. Cas. Ins. Co., 295 So.2d 210 (La.App.1974); Johnson v. Travelers Indemnity Co., 359 Mass. 525, 269 N.E.2d 700 (1971).

Defendant next argues that stacking was denied in Automobile Club Inter-Insur. Exch. v. Diebold, supra, where one insurance policy for separate premiums gave uninsured motorist coverage to two separate automobiles and under circumstances where both coverages applied to the accident which gave rise to the plaintiff’s injuries. Defendant argues that the realities of this case are the same as Diebold and that the same result should be reached. In this respect defendant argues that, “it does seem unreasonable that where a company issues one policy, but separately insures two different vehicles, charging separate premiums for separate coverages, that stacking of the two UM coverages may be denied and yet under a situation identical except for the fact that two separate policy numbers have been assigned to the separate automobiles, stacking UM coverages should be permitted.”

The answer to this protest is set forth in the Diebold opinion where the court expressly and emphatically pointed out that, “[o]ur uninsured motorist statute requires a minimum amount of coverage on each policy issued in this state.” (Emphasis in the original). On that basis the court expressly distinguished between the situation there involved of a single policy covering two automobiles as against the situation in the present case of separate policies covering each of the automobiles. The Diebold opinion goes on to underscore this distinction by the statement, “[w]e are not here concerned with the issue of ‘stacking’ whereby a party is allowed to recover from a second policy after exhausting the liability limits of the first.”

Whether Diebold was correctly decided or not, that decision cannot deny stacking in this case. Once the majority rule be adopted, as it has been in Missouri, it inevitably follows that Condition 8 in defendant’s two policies here involved is invalid and unenforceable. What the result should be in a one-policy multi-automobile situation is beside the point here. It should be mentioned that a number of other jurisdictions permit stacking in the mul-ti-policy situation, while at the same time denying stacking in the situation of a single policy covering more than one automobile. Hurles v. Republic Franklin Insurance Co., 39 Ohio App.2d 118, 316 N.E.2d 494 (1973); Westchester Fire Insurance Co. v. Tucker, 512 S.W.2d 679 (Tex.1974); Talbot v. State Farm Mutual Automobile Insurance Co., 291 So.2d 699 (Miss.1974).

Finally, defendant cites a number of cases from other jurisdictions giving effect to anti-stacking policy limitations. All of those cases fall into either the category of the one-policy multi-automobile situation or else in the category of cases which follow the minority rule on the general stacking problem. For reasons already discussed, neither category applies here.

To summarize, Condition 8 violates public policy and is therefore unenforceable. The trial court correctly so ruled.

Affirmed.

All concur.


author: SIMEONE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert L. ROGERS, Defendant-Appellant.
    No. 36232.
    Missouri Court of Appeals, St. Louis District, Division 3.
    May 13, 1975.

      Carr L. Woods, Bowling Green, E. Rex Bradley, Public Defender, St. Charles, for defendant-appellant.
    John C. Danforth, Atty. Gen. and K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, James Millan, Pros. Atty., Bowling Green, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

This is an appeal by the defendant-appellant, Robert L. Rogers, who was found guilty by a jury on April 11, 1974, and sentenced by the court to four years for the offense of possession of burglar’s tools and to two years for attempted burglary in the second degree to run consecutively. §§ 560.115, 560.045 and 556.150 RSMo 1969, V.A.M.S. He appeals. For reasons hereinafter stated, we affirm the judgment of conviction.

Since the appellant does not question the sufficiency of the evidence to make a sub-missible case, we will relate only those facts necessary for the disposition of the points raised on this appeal.

In 1973, Mrs. Ruth Leeman owned a two and one-half story building (sometimes referred to as a three story building) located at 311 Georgia Street in Louisiana, Missouri. The first floor was rented to a shoe store; she occupied the second story as her living quarters and used the third floor as a storeroom. In the storeroom there was located a gas stove, a wardrobe, a table, some boxes and a clothes line. The storeroom had two windows, “pretty good size,” reaching “almost from the ceiling to the floor . One can see in through the windows into the storeroom. Immediately behind Mrs. Leeman’s building was a building referred to as the D & W Building.

In the afternoon of October 21, 1973, about 2:45 p. m., Officer John Whitaker, of the Louisiana police department, received a call that “there were two subjects going up behind J. B. Sterne Funeral Home up the stairway carrying a bag of tools.” He went immediately to the building, calling another police officer- — Wesley Meyers — on the way, proceeded to the roof of the D & W Building, and saw some ninety feet away, on the roof of the Leeman building, the defendant and another man, Patrick F. Johnson, kneeling down next to one of the windows of the Leeman building. “. . . Mr. Rogers was down next to the window. He had a large screwdriver in his hand prying on the molding of the window. Mr. Johnson was kneeling down on the other side of the window holding on to the facing.” There was also a “green Army type duffel bag” containing tools lying on the roof to the left of the defendant. Both of the two men had gloves on. The officer drew a weapon and told them to “raise up from the window, put their hands on top of their head, and come over to the next roof . .” The men complied, and were arrested. The duffel bag remained on the Leeman roof by the window. Meanwhile, Officer Meyers arrived. Officer Meyers picked up the “bag of tools” and brought it to where Whitaker was. The two men found on the roof and the duffel bag of tools were taken to the Louisiana Police Station. The bag was in the officers’ possession until they arrived at the station. Then the bag containing the tools was in the police station until it was turned over to the sheriff of Pike County, Dave Jenkins, sometime later in the afternoon. Although the bag was not “observed” by Officer Whitaker “all the time,” it was located in the police station until turned over to Sheriff Jenkins.

At trial, Officer Whitaker identified the duffel bag (State’s Exhibit Number 3) as the container of the tools at the time he first saw the two men on the roof. He also identified the various tools and went through and “picked out” the various tools. The screwdriver lying on the roof was picked up by Officer Meyers at the same time he picked up the other tools. Upon investigation of the window where the two men were, Officer Whitaker noticed that some of the facing had been pried loose, and the glass was broken in the left-hand and right-hand corners of the window. Glass was lying on the roof. Officer Whitaker acknowledged that there was a nylon rope and a pair of gloves in the duffel bag at the time it was taken to the police station, but, for some unexplainable reason, these two items were not in the bag at the time of trial. Officer Whitaker at trial identified the tools as the same ones he and Officer Meyers took from the roof, except that the piece of nylon rope and one pair of gloves were missing.

After the bag of tools was taken to the police station, the sheriff of Pike County came to the station a few hours later and saw the bag of tools there. Officer Whitaker was labeling some of the tools. The bag and tools were turned over to the sheriff, and he took them to his office in Bowling Green, where they remained in a locked closet. Except for the preliminary hearing and the trial, the tools remained in his closet. The sheriff, too, “believed” he remembered “seeing a rope there in the police station, however, I don’t see it there now.”

During trial, the state offered and the court received in evidence a photograph showing the upper half of Mrs. Leeman’s building and the two windows. Officer Whitaker testified that, “[ejxcept for the fact that the windows have been boarded up,” the picture fairly and accurately portrayed the location of the building and the location of the windows on the day of the alleged offense. The state also offered and the court received in evidence the duffel bag and tools. Objections were made that the photograph did not fairly and accurately represent the building as .of the date of the occurrence and that it had not been established that there was a “continuous course of custody” as to the bag and tools. Appellant’s attorney objected to the introduction of the bag and tools stating, “It has been testified to that they were taken and left in a room apparently with no one else. There are items that are missing and we do not believe that the State has proved that these have been in the continuous custody of the officers who have testified.”

After instructions were given, the jury found the defendant guilty of possession of burglar’s tools and attempted burglary in the second degree. After motion for new trial was overruled, the defendant was granted allocution and sentenced.

On this appeal, defendant contends that the court erred (1) in admitting the photograph because it “did not fairly and accurately depict the scene as of the date of the occurence [sic]” and (2) in overruling defendant’s objection to the introduction of the duffel bag and tools “on the grounds that the state failed to prove the necessary chain of custody and possession required under the law . . . .”

We rule both contentions against appellant. Photographs of the scene of an alleged crime are admissible in evidence at a criminal trial if they depict the conditions and circumstances surrounding the alleged crime and aid the jury in throwing light on a material issue in the case. The admissibility of photographs of a scene is a matter resting primarily within the discretion of the trial court. State v. Kinder, 496 S.W.2d 335, 339 (Mo.App.1973). The test is whether the photographic evidence shows relevant facts which will aid the jury. State v. Johnson, 508 S.W.2d 18, 20 (Mo.App.1974). The essential factor whether a photograph is admissible depends upon whether the photograph represents the observation of the witness. The accuracy of the photograph may be proved by anyone who knows the facts. Photographs are admissible when the witness shows that they are a reasonably accurate representation of the place or thing in question in order to aid the jury in understanding the testimony of the witness. The fact that a photograph may be incorrect in certain particulars or that there are changes in the scene does not affect the admissibility of the photograph but only affects the weight to be given to it by the jury. State v. McGee, 336 Mo. 1082, 83 S.W.2d 98, 106-107 (1935); State v. Kinder, supra, 496 S.W.2d at 339; State v. Johnson, supra, 508 S.W.2d at 20; State v. Moore, 353 S.W.2d 712, 714 (Mo.1962).

The fact that Mrs. Leeman’s windows of the building were boarded up does not affect the admissibility of the photograph introduced and admitted by the trial but only the weight to be given to the photograph. Officer Whitaker testified that, except for the fact that the windows have been boarded up, the picture “fairly and accurately” portrays the location of the building and windows on that October day. The decision relied upon by the appellant, Fox v. City of Kansas City, 343 S.W.2d 200 (Mo.App.1960—a civil case), presents an altogether different issue unrelated to this criminal proceeding. We therefore find no error in the admission of the photograph in this respect.

Next, appellant complains that the trial court erred in overruling his objection to the introduction of the duffel bag and the various tools contained therein because a chain of custody was not shown. His contentions are really two-fold: (1) that because Officer Whitaker testified that the tools were not in his possession at all times until they were turned over to Sheriff Jenkins and there were no identifying marks on the items, no chain of custody was shown, and (2) that since two items were missing from the bag — a nylon rope and one pair of gloves — there is an inference that items were added or that the items introduced were not the same ones as taken at the scene.

It is, of course, a general principle that the state must show a “chain of custody” of the items introduced in evidence. The reason for this requirement is to prevent tampering, alteration or substitution of exhibits sought to be introduced at trial. But it is certainly unnecessary that some witness must have continually watched the exhibit or kept it in his personal possession. State v. Rose, 428 S.W.2d 737, 740 (Mo.1968); State v. Orr, 493 S.W.2d 374, 377 (Mo.App.1973). All that is necessary to establish a chain of custody of an exhibit is that the evidence must afford a reasonable assurance that the exhibit was the same at trial as it was when first obtained. It is sufficient if the evidence shows reasonable assurance that the exhibit is the same and in the same condition. State v. Nolan, 499 S.W.2d 240, 251 (Mo.App.1973); State v. Baines, 394 S.W.2d 312, 316 (Mo.1965).

The fact that Officer Whitaker did not have the bag and tools in his possession all the time is not significant. The tools were taken from the scene, placed in the police station, given to the sheriff where they remained in his locked closet except for the preliminary hearing and trial. Officer Whitaker positively stated that they were the same tools that he saw the day when he took them back to the police department. This is sufficient. Officer Meyers also identified the tools he saw as those in the courtroom. Officer Whitaker testified that at the time he took the bag and tools in his possession, they were marked and labeled at the police station and those markings and labels were still on the tools. We hold the state showed a sufficient chain of custody to satisfy the rule. State v. Rose, supra.

The appellant’s other contention is that, since one pair of gloves and a length of rope were missing from the bag and their absence could not be explained by any of the officers, an inference is raised that items may have been added or were not the same as those found on the roof of the building. We hold this contention is also insufficient to require a reversal of this cause.

In State v. Thomas, 360 S.W.2d 694 (Mo.1962), the appellant contended that the court erred in admitting an electric drill in the defendant’s trial for burglary and stealing. Thomas contended that the drill was taken from a truck in which he was 'arrested. The truck had been left parked, unlocked and with the window open from the time of arrest until the next morning, a period of some eight hours. During such time the truck was not in the control of the defendant or the police. The defendant therefore sought to draw the inference that the truck may have been tampered with, and the things found in it had no necessary connection with him. Our supreme court rejected this contention on the ground that such facts did not make the evidence inadmissible but that the inference went to the weight of the evidence and not primarily to its admissibility. The court, also held that it was entirely proper, in the trial court’s discretion, to admit the drill. State v. Thomas, supra, 360 S.W.2d at 698.

We hold the trial court did not err in admitting the bag and tools, even though one pair of gloves and a length of rope were unexplainably absent.

The trial court had discretion to admit the bag and numerous tools, and the fact that two items were missing was a matter affecting the weight of the evidence, not its admissibility.

We have read the entire transcript, including the defendant’s evidence which consisted of the testimony of Patrick Johnson, who testified that he and the defendant were on the roof because Johnson thought his estranged wife was in the vicinity of Bowling Green or Louisiana, had an apartment ' there, and he was looking for some antique items his wife had taken, including a stove.

We have examined the briefs and all the authorities relied upon by both the state and the appellant. We are convinced that no prejudicial error occurred and that the judgment of conviction should be affirmed.

The judgment is affirmed.

McMILLIAN and GUNN, JJ., concur.

      . One key hole saw, one brace, one large cold chisel, one hacksaw, two crowbars, 18" and 24", one mall with handle cut off, several punches, one wood brace, a small pair of vice grip pliers, one wood expansion bit, one flashlight, two blades for the key hole saw, two ice picks, two nail sets of punches, a pry bar, one large screwdriver, and one pair of leather gloves.

      . The sheriff testified that one pair of gloves was put with Mr. Rogers’ jacket, and not put in with the tools, and he didn’t know what happened to them.


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Andrew STEVENSON, Appellant.
    No. KCD 26984.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.

      Willard B. Bunch, Public Defender, Philip H. Schwarz, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

Defendant appeals his conviction of two counts of murder first degree and one count of assault with intent to kill with malice. The jury assessed punishment at life imprisonment on each of the murder counts and ninety-nine years on the assault count.

Since a statement given by the defendant was erroneously admitted into evidence and this case must be reversed, only sufficient facts to place the statement in its proper setting will be narrated.

The day after two teenaged boys were killed and one seriously wounded while they were sitting in a parked automobile, the defendant was arrested and charged with these crimes. He was confined in the Jackson County Jail after having been given his Miranda warning. On the following day, Detectives VanBuskirk and Smith of the Kansas City Police Department went to the county jail for the purpose of interrogating the defendant. The defendant was taken by the two detectives to a small room where VanBuskirk asked the defendant to sign a waiver of his rights following the Miranda format. The defendant stated he had signed the same form on the previous day, but VanBuskirk requested he sign another since the previous one had not been signed in the presence of VanBuskirk.

VanBuskirk testified in a pre-trial motion to suppress the statement given by defendant to the two detectives that defendant for the first fifteen or twenty minutes of the interrogation denied any participation in the crimes and stated he had been at home at the time in question. VanBuskirk further stated he told the defendant during this time he had statements from two men who were with defendant at the time of the crimes and these two men had both stated the defendant was the one who had done the shooting. The defendant then admitted knowing the other , two men and to being with them on the night of the crimes. At this time the defendant commented he was just a victim of circumstances and stated he did not want to say anything until he had talked with an attorney. VanBuskirk then inquired if he wanted to call an attorney and defendant said he did not. VanBuskirk then inquired if he wanted him to call an attorney and the defendant again replied he did not.

VanBuskirk further testified the defendant next asked him if it would make any difference if he made a statement, and he told the defendant he would still be charged with two counts of murder and possibly three if the third person died. VanBuskirk further informed him he had not been able to establish a motive for the shooting, and the other two men who had implicated the defendant could give no reason.

VanBuskirk further testified the conversation thereupon stopped for about two minutes and all three parties remained silent. He stated the defendant was sitting in a chair with his head down in a dejected state. VanBuskirk stated on cross-examination that during the two minute pause he did not give the defendant any impression he was going to cease talking with him or break off the conversation. VanBuskirk then stated the defendant resumed the conversation by again stating he was just a victim of circumstances and then began to relate the details of how he shot the three boys.

Defendant asserts the statement given by him after he told the detectives he wished to remain silent and to consult an attorney violated his rights as enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In Miranda the court stated at pages 473, 474, 86 S.Ct. at page 1627:

“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.”

The court in Miranda further held if an interrogation continues without the presence of an attorney and a statement is taken, the State has a heavy burden to demonstrate the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to counsel. The court further stated at page 475, 86 S.Ct. at page 1628:

“Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understanding^ rejected the offer. Anything less is not a waiver.”

In the case at bar, the State’s evidence through Detective YanBuskirk shows the defendant was informed of his rights and signed a written waiver of his right to remain silent and his right to have counsel. This same evidence further shows that prior to the defendant making any statements which fully incriminated him in the commission of these crimes, he stated he wanted to remain silent and desired to talk with an attorney. Under the holding in Miranda, the officers had no choice, once the defendant chose to exercise his rights, but to hon- or the request of the defendant to remain silent and to see that he was able to consult with an attorney. The alternative to such procedure would be for the defendant to fully waive again his right to remain silent and his right to consult with counsel.

It is clear from Miranda that any statement taken after the defendant exercised his right to remain silent or to consult with counsel, is the product of compulsion and, therefore, inadmissible, absent the proof necessary to show a waiver. The crucial question then emerges: Did defendant waive his right to remain silent or to counsel after his election to exercise such rights? The record is silent as to any waiver made by the defendant after he stated he wanted to exercise his constitutional rights. In fact, the record affirmatively shows the officers not only failed to respect defendant’s exercise of his rights, but gave him no ground to believe they were going to break off the interrogation. The only inference to be drawn from VanBuskirk’s testimony is that the officers would have stayed in the room with the defendant for an indeterminate length of time, even after his expressed desire to remain silent and consult an attorney.

The compulsion referred to in Miranda is present here and operated on the defendant in such a way that he made a statement, even after expressing the desire to remain silent. It requires little imagination to perceive this compulsion. The defendant is in jail, alone, and in the presence of two officers. They have already told him the two men who were with him have stated he was the one who did the shooting. The defendant thus is in the position of being accused of two murders and an assault which could result in a third murder charge. He expressed a desire to remain silent and to consult an attorney but the officers remained in the room with him and simply waited for something to happen. The impact of this situation on the defendant would of necessity be overwhelming. There is small wonder his statement followed.

Under these circumstances it cannot be said the defendant in any manner waived his right to remain silent and consult counsel after he expressed the desire to exercise these rights. This made the statement given by him the product of compulsion and its admission in evidence was, therefore, improper.

In seeking to justify the admission of defendant’s statement, the State argues the officers did in fact break off the interrogation by failing to ask the defendant any more questions until the defendant was the first to speak. However, as noted in Miranda, supra, it is not only necessary for the officers to cease the interrogation, but any statement taken after the defendant invokes his constitutional rights is invalid, absent a positive showing of a waiver thereafter. As shown above, the State did not show any waiver on the part of the defendant after his statement invoking his constitutional rights, so the mere fact the officers did not ask any more questions until the defendant began to speak does not comply with the rule announced in Miranda. The officers were under an affirmative duty to break off the interrogation completely, and that to be accomplished not only by refraining from asking further questions, but by leaving the defendant and removing at least the subtle compulsion of their presence. This is required by Miranda and nothing less will assure the defendant the full protection of his constitutional rights.

The State next relies upon United States v. Scogin, 459 F.2d 182 (8th Cir.1972). In that case the federal agent called on the defendant at her home and stated he wanted to ask her some questions. The defendant’s father was present and the defendant attempted to call an attorney but could not reach him. After being warned of her rights, the defendant made a statement to the officer. The court specifically found this interrogation was non-custodial, the defendant waived her rights, and for that reason Miranda did not apply. That case does not aid the State nor does it make the statement in this case admissible.

For the reasons heretofore stated, the State did not carry its burden to show the statement was voluntary and given after defendant knowingly and intelligently waived his constitutional rights. It follows such statement should not have been received in evidence.

The defendant has filed a “supplemental brief” in which he raises a question concerning the constitutionality of filing these charges against him in multiple counts under Rule 24.04, V.A.M.R., which he claims deprived him of a chance of having his sentences run concurrently. This point was not raised in the trial court nor preserved in the motion for a new trial and, therefore, is not before this court for review. State v. Schuh, 497 S.W.2d 136 (Mo.1973). However, for the benefit of all concerned in view of the remand, it can be observed that defendant’s contentions have been fully answered in State v. Neal, 514 S.W.2d 544 (Mo. banc 1974).

The judgment is reversed and the cause is remanded for a new trial.

All concur.


text:
    The STATE of Missouri ex rel. PHILIPP TRANSIT LINES, INC., et al., Appellants, v. The PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent.
    No. KCD 27051.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.

      Tom B. Kretsinger, Warren H. Sapp, Kretsinger & Sapp, Kansas City, for appellants.
    Michael F. Pfaff, Commission Counsel, Thomas A. Hughes, Asst. Commission Counsel, Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

Philipp Transit Lines, Inc., (Transit) and Philipp Transfer Lines, Inc., (Transfer), appeal from a judgment of the circuit court affirming an order made by the Missouri Public Service Commission (Commission). The question presented is whether or not Transit and Transfer are authorized to establish through routes and joint rates for the transportation of property under Section 390.116 RSMo 1969, V.A.M.S. (all statutory references are to RSMo 1969, V.A. M.S.) without specific approval of such through routes by the Commission. This court finds Transit and Transfer were authorized and reverses the judgment of the circuit court.

Transfer and Transit filed joint rates with the Commission for the transportation of property between Kansas City and St. Louis with an interchange at Marthasville, Missouri. Transit holds authority from the Public Service Commission through a certificate of convenience for the transportation of property between Kansas City and Washington, Missouri, and Transfer holds authority through a certificate of convenience issued by the Commission for the transportation of property between Treloar and St. Louis. A common point on the established routes of Transit and Transfer is Marthasville. The rates filed called for the transfer of property being transported at Marthasville with Transit or Transfer relinquishing control at that point and transferring control to the other carrier.

After the filing of these rates by Transit and Transfer, five carriers holding a single line regular route authority from the Commission to transport property between St. Louis and Kansas City filed a petition with the Commission asking the Commission to suspend the rate schedule filed by Transit and Transfer. The petition further requested the Commission to investigate the alleged violation by Transit and Transfer of Rule 35 of the Commission’s general order No. 33 — E.

A hearing was held before an examiner of the Commission at which the only evidence adduced bore on the alleged violations of Rule 35. At this hearing Paul Philipp, the president of Transit, admitted a number of violations of the requirement that transfer of property being transported be carried out between Transit and Transfer at Marthasville, Missouri. According to Mr. Philipp, the transfer of the property between Transit and Transfer was accomplished by a strictly paper transaction in Washington, Missouri, without any actual physical transfer being accomplished at Marthasville as required by Commission rules and regulations.

The Commission made its report and order in which the rates filed by Transit and Transfer were suspended; Transit and Transfer were ordered to cease and desist in providing through service until such time as they were specifically authorized by the Commission to do so; and the authority held by Transit and Transfer to operate as common carriers was suspended for a period of fifteen days because of violations found by the Commission of its rules and regulations.

After motion for re-hearing and for oral argument, the Commission heard arguments and thereafter amended its report and order. As finally adopted by the Commission, the report and order ordered the suspension of the rates filed, ordered Transfer and Transit to cease and desist from providing through service at joint rates until such service was specifically authorized by the Commission, and ordered the general counsel of the Commission to institute suit in a court of competent jurisdiction against Transit and Transfer and/or Paul Philipp, to seek penalties and/or sanctions for violation of the rules and regulations of the Commission. On appeal to the circuit court the order finally made was affirmed.

Transit and Transfer contend § 390.116 authorized them to establish through routes and joint rates without specific approval from the Commission. The Commission contends its Rule 35 prohibits through routes and the joint rates without specific Commission approval.

§ 390.116 provides:

“1. Common carriers of property may establish reasonable through routes and joint rates, charges and classifications with other such carriers or with common carriers by railroad or express; and common carriers of passengers may establish reasonable through routes and joint rates, fares or charges with other such carriers or with common carriers by railroad. In case of such joint rates, fares, charges or classifications, it shall be the duty of the carriers, parties thereto, to establish just and reasonable regulations and practices in connection therewith, and just, reasonable and equitable divisions thereof as between the carriers participating therein which shall not unduly prefer or prejudice any of such participating carrier^.
“2. The commission may, whenever deemed by it to be necessary or desirable in the public interest, after hearing, upon complaint or upon its own motion, order the establishment of just and reasonable through routes and joint rates, fares, charges, regulations or practices, applicable to transportation of passengers or property by common carriers.”

Rule 35 provides:

“Every common carrier to the extent it is authorized by this Commission to engage in the transportation of property between points in Missouri over regular routes, is hereby authorized to establish joint service at joint through rates between any point in Missouri on its route and any point in Missouri on the regular route of another common carrier; provided, there is no authorized single line common carrier regular route service between such points.”

It is readily apparent that Rule 35 follows the statute except for the last clause which provides that such through routes and joint rates may only be established when there is no authorized single line common carrier regular route between the points being serviced.

Rule 35 was originally adopted by the Commission to be effective on July 20, 1943. § 390.116 was passed by the General Assembly in 1951. Since the passage of this statute, Rule 35 has been readopted and promulgated by the Commission three times.

It is axiomatic that rules of the Commission must be consistent with and subject to statutes adopted by the General Assembly. This court stated in State ex rel. Springfield Warehouse & Transfer Company v. Public Service Commission, 240 Mo.App. 1147, 225 S.W.2d 792, 794[2] (1949):

“It has no power to adopt a rule, or follow a practice, which results in nullifying the expressed will of the Legislature. It cannot, under the theory of ‘construction’ of a statute, proceed in a manner contrary to the plain terms of the statute; and the fact that such a rule has been in existence for a long period of time does not give it legal effect or make its legality persuasive on the court, except in cases where the statute may fairly be said to be ambiguous.”

In this case § 390.116 is not ambiguous and the Commission does not contend otherwise. The Commission contends that Rule 35 is merely the Commission’s interpretation or definition of § 390.116(1) in that such rule merely provides that joint through routes are not deemed reasonable by the Commission where single line common carrier service between such points is already authorized. It is obvious the statute give's the Commission no power to determine whether or not the through routes established by the carriers are reasonable. The power to establish through routes is vested in the carriers. The power of the Commission in this regard is limited to the situation when the carriers fail to do so.

This Section is abundantly clear and needs no construction to give carriers the right to establish through routes. The through routes being established by the carriers are only on routes which had theretofore been approved by the Commission for use by the carriers. Thus, in the establishment of through routes, the carriers are doing nothing more than using routes already granted to them by the Commission and are simply interchanging property at some point on their routes which is common to both carriers.

This Section also grants to the carriers the right to establish joint rates, however, § 390.121 grants to the Commission the power to investigate any joint rate adopted under the provisions of § 390.116 and if the Commission finds that any such rate is or will be unjust or unreasonable, unjustly discriminatory, unduly preferential or unduly prejudicial, it shall so determine and prescribe the lawful rate which may be charged.

It is readily apparent the Legislature has not granted to the Commission any power to limit or restrict the routes which may be involved in through routes which carriers establish under § 390.116. The power of the Commission is limited solely to the matter of joint rates which the carriers establish over such through routes.

The Commission further urges that under its general powers as enumerated in § 390.-041, it has the power to issue Rule 35. However, as pointed out above, the Commission has already exercised its power by issuing certificates of convenience and necessity to common carriers and approving their routes prior to the time two or more carriers exercise their power under § 390.-116 to establish through routes. There is certainly no conflict between § 390.116 and § 390.041. The former Section merely grants certain authority to common carriers to establish through routes and joint rates, but certainly such carriers remain subject to the control of the Commission in the general powers granted to the Commission.

It is manifest, therefore, that Rule 35 is contrary to § 390.116. That being so, the rule is hereby found to be void and the Commission may not enforce it. State ex rel. Springfield Warehouse & Transfer Company v. Public Service Commission, supra.

At the hearing before the examiner, Paul Philipp stated his wife, Eva Philipp, was the sole stockholder of Transfer, although she had supplied the money with which to purchase a company which held certificates issued by the Commission over the routes acquired by Transfer. Mr. Philipp further stated it was his desire to establish a single line service between Kansas City and St. Louis, however, he admitted that even though he was the actual controlling figure in both Transfer and Transit, he could not operate a single line service between those points but could do so only by an interline transfer at Marthasville. The Commission argues that this shows an intent on the part of Philipp to circumvent the rules and regulations of the Commission to establish a single line service between Kansas City and St. Louis by using the fiction of a through route authorized by § 390.116.

There is no restriction placed by the Legislature or by the Commission on the number of common carriers which may be owned or controlled by the same people or by the same corporation. Absent such limitation, there is no restriction in § 390.116 to a through route being established by Transit and Transfer so long as they observe the rules and regulations concerning a transfer of property at Marthasville. Philipp concedes the necessity of the transfer between the two lines. In this he is correct.

The Commission further urges that Transit and Transfer have in fact consolidated their operating rights and under § 390.111(2) it is necessary for them to obtain approval for this. There was no evidence that Transit and Transfer have consolidated their certificates as a result of a transfer of operating rights as required by this Section. The only evidence before the Commission was that Transit and Transfer were entirely separate corporations, holding distinct and separate certificates from the Commission which authorized service on distinct and different routes. The evidence did not show any consolidation within the meaning of § 390.111(2).

The Commission did find pursuant to a certificate filed by Paul Philipp subsequent to the hearing before the examiner that Transfer had become a wholly owned subsidiary of Transit. However, there was nothing to indicate the two corporations had merged or that any consolidation, as discussed above, had taken place.

The Commission concentrated its efforts on the violations which Philipp admitted had been committed by Transit and Transfer in failing to make the required interline transfers of property at Marthasville, or commonly described as “jumping the gateway”, and failed to give any attention to the joint rates filed by the two companies. The Commission is authorized under Section 390.156 to direct its general counsel to begin an action to recover penalties or forfeitures or to enforce the powers of the Commission. In making its order directing the general counsel to commence such actions, the Commission was acting well within its powers. However, in ordering Transit and Transfer to cease and desist from establishing a through service at joint rates between points on their respective line's until specifically authorized by the Commission, the Commission was exceeding its jurisdiction. Likewise, the Commission exceeded its jurisdiction in ordering the rates filed by the two companies to be suspended. Under § 390.121, the Commission was limited to a determination of whether or not the rates as filed were unreasonable, unjust, discriminatory, unduly preferential or unduly prejudicial.

Two collateral motions have been taken with this case. One was filed by the Commission to dismiss the appeal for failure of Transit and Transfer to file the transcript within proper time. The other was filed by the five intervenors who have made no appearance in this court except for the filing of the motion to dismiss the appeal. Their motion seeks dismissal on the same ground as the Commission and in addition, alleges the cost bond required of the appellants was not timely filed.

This case illustrates once again the time and trouble which is incurred when the rules relating to appeals are not followed. In this case the appellant received an extension of time to file the transcript from the trial court without complying with the provisions of Rule 82.19, V.A.M.R. This caused the transcript to be filed in this court out of time. Further, the appellant’s original brief filed in this court was found to be in violation of the rules governing the contents of briefs, and for that reason, both appellants and the Commission have been required to file two briefs in this court. It should be more than apparent to all concerned that the time required to consult the rules and to comply therewith would have been negligible compared with the time which has been required to be expended because of the failure to observe such rules.

This court and all the other appellate courts in this State have issued frequent warnings concerning the necessity of observing the rules in the handling of appeals. Such warnings have become more frequent and more urgent as the backlog of appeals increased. All of the appellate courts are motivated by the desire to handle their dockets as quickly as possible, however, this desire becomes frustrated when counsel fail to observe the very simple and plain requirements of the rules.

In the case at bar, this court has elected to dispose of this appeal on the merits and in so doing, has exercised its discretionary authority to grant the request of the appellants for tliie transcript to be filed out of time. Swager v. Monkem Company, Inc., 460 S.W.2d 291 (Mo.App.1970). However, what is being said concerning the necessity of following the rules is meant to once again call upon the bar to do all in its power to expedite the handling of appeals by following the rules governing appeals.

Without passing on the standing of the intervenors in this court to move for a dismissal of this appeal, their motion is overruled. The filing of a cost bond out of time is not fatal to the appeal and no harm or hardship has been shown to result. State ex rel. Transport Delivery Company v. Public Service Commission of Missouri, 414 S.W.2d 322 (Mo.App.1967). The motion of the Commission is likewise overruled.

The judgment of the circuit court is reversed and the cause is remanded to the circuit court with directions that this cause be remanded to the Public Service Commission with directions to the Commission to strike, cancel and delete from its final report and order those items designated as Ordered: (1) in which Transit and Transfer were ordered to cancel their joint rates, and Ordered: (2) in which Transit and Transfer were ordered to cease and desist from providing through service at joint rates between points on' their respective lines until such through service at joint rates is specifically authorized by the Commission. As to Ordered: (3) of the report and order, the judgment of the circuit court is affirmed.

Nothing herein should be construed to limit or impinge the power of the Commission to investigate the joint rates filed by Transit and Transfer and to initiate such action under § 390.121 as it deems proper.

All concur.


author: BROCK, Justice.

text:
    UNION CARBIDE CORPORATION, FOOD PRODUCTS DIVISION and Aetna Casualty & Surety Co., Appellants, v. Louise W. CANNON, Appellee.
    Supreme Court of Tennessee.
    March 10, 1975.
    Robert R. Campbell, Hodges, Doughty & Carson, Knoxville, for appellants.
    Edwin H. Arnold, Arnold, Winfrey, McMurray & Russell, Loudon, for appellee.
   OPINION

BROCK, Justice.

This is a workmen’s compensation action. The trial court awarded to the appel-lee the statutory benefits provided for 10 percent permanent partial disability of the body as a whole. The appellants, the employer and the employer’s insurer, have appealed to this Court contending that the claim of the appellee was barred by the one year statute of limitations as provided in T.C.A., Sections 50-1003 and 50-1017(1), that the appellee’s claim should be barred for failure of the appellee to give notice as required by T.C.A., Section 50-1001, and, that there is no material evidence to support the finding of the trial court that the disability of the appellee was the result of an accident arising out of and in the course of her employment.

We are of the opinion that the record supports the finding of the trial court that the notice requirements were satisfied and that the appellee received an injury by accident arising out of and in the course of her employment on January 13, 1969, and that said injury has resulted in the disability which the trial court found to exist and for which compensation benefits were awarded. The defense that the appellee’s claim is barred by the one year statute of limitations presents a substantial question which requires detailed treatment by the Court.

T.C.A., Section 50-1003, provides:

“The right to compensation under the Workmen’s Compensation Law shall be forever barred, unless within one (1) year after the accident resulting in injury or death occurred the notice required by § 50-1002 is given the employer and a claim for compensation under the provisions of this law is filed with the tribunal having jurisdiction to hear and determine the matter; provided that, if within said one (1) year period voluntary payments of compensation are paid to the injured person or his dependents, an action to recover any unpaid portion of the compensation, payable under this law, may be instituted within one (1) year from the time the employer shall cease making such payments, except in those cases provided by § 50-1024.”

T.C.A., Section 50-1017, provides:

“The time within which the following acts shall be performed under this law shall be limited to the following periods, respectively.
“(1) Limit of time of actions or proceedings. Actions or proceedings by an injured employee to determine or recover compensation, one (1) year after the occurrence of the injury; except as provided in § 50-1003.”

The accident upon which the appel-lee bases her claim occurred on January 13, 1969, and she did not file her claim for compensation until May 28, 1971, more than two years and four months following said accident. However, the trial court found:

“From the evidence in the case the Court finds that the petitioner did sustain a compensable injury in January of 1969, that the full nature and extent of the injury was not manifested until the herniated disc was discovered by Dr. Purvis in the following April of the following year, 1970. Although that was more than one year before suit was filed in this cause the Court finds that payments were made by the company for treatment of the petitioner, as alleged, which would stay the running of the statute of limitations as to her.”

There is material evidence in the record to support the finding of the trial court that the full nature and extent of the ap-pellee’s injury was not manifested until Dr. Purvis diagnosed a herniated disc on April 7, 1970. Between the date of the accident and the date Dr. Purvis diagnosed the herniated disc the appellee suffered much pain, lost considerable time from work, and was treated by several physicians, but no physician informed her that she suffered from a herniated disc or from any other disability which would be permanent in nature. This being true, we are satisfied that the one year statute of limitations did not begin to run on January 13, 1969, but, instead, began to run on April 7, 1970. It is well settled in this state that the running of the statute of limitations is suspended until by reasonable care and diligence it is discoverable and apparent that a compensa-ble injury has been sustained. Imperial Shirt Corporation v. Jenkins, 217 Tenn. 602, 399 S.W.2d 757 (1966); Murray Ohio Manufacturing Company v. Vines, 498 S. W.2d 897 (Tenn.1973).

Nevertheless, the statute of limitations’ defense still persists because the ap-pellee did not file her claim until more than one year following April 7, 1970, the claim having been filed on May 28, 1971. Thus, the defendants insist that the statute of limitations ran on April 7, 1971, and that the claim of the appellee was thereafter barred. On the other hand, the appel-. lee contends that the running of the statute was suspended on May 29, 1970, because, on that date a substantial portion of the bill of Dr. Purvis for surgical treatment of the plaintiff’s herniated disc was paid by the Travelers Insurance Company. Travelers provided hospitalization and major medical insurance coverage pursuant to a group policy carried by the employer upon its employees, the premium for which was paid approximately one-half by the employer and one-half by the employees. Likewise, the appellee relies upon payments to Dr. Sidney Wallace on January 6, 1971, and April 17, 1971. In this connection, ap-pellee relies upon that portion of T.C.A., Section 50-1003, above quoted, which states:

“ . . . provided that, if within said one (1) year period voluntary payments of compensation are paid ... an action to recover any unpaid portion may be instituted within one (1) year from the time the employer shall cease making such payments

It is true that the rule in this state is that voluntary payments of compensation by the employer or its insurance carrier within one year of the injury tolls the running of the statute. Adams v. Patterson, 199 Tenn. 603, 288 S.W.2d 453 (1956). It is likewise true that:

“Where the facts are sufficient to show that an employer or his insurance carrier has furnished an injured employee medical and hospital services, it is generally held that this constitutes [the] payment of compensation, or a waiver which suspends the running of the time for filing a claim for compensation.” John Sevier Motor Company v. Mullins, 205 Tenn. 227, 326 S.W.2d 441 (1959).

And, it is the date of the last voluntary payment of medical bills, rather than the date of the last medical treatment, that starts the running of the statute of limitations. Chandler v. Travelers Insurance Company, 212 Tenn. 199, 369 S.W.2d 390 (1963); City of Bristol v. Reed, 218 Tenn. 173, 402 S.W.2d 124 (1966).

We first examine the claim of the appel-lee that the payment on May 29, 1970, of a substantial portion of Dr. Purvis’s bill for surgical treatment of the appellee’s injury was a “payment • of compensation” which tolled the running of the statute of limitations. On May 29, 1970, the Travelers Insurance Company issued a draft in the amount of $270.00 payable to Dr. John Purvis for his treatment of Mrs. Cannon, appellee. Travelers Insurance Company carried the group hospitalization and major medical coverage at the employer’s plant. The Travelers Company did not then and never had carried the employer’s workmen’s compensation coverage. This payment to Dr. Purvis was made pursuant to an application made to Travelers on a form styled “Physician’s and Surgeon’s Statement.” One portion of this form is headed “This Section to be Completed by Employee” and in this portion is the instruction “If claim due to accident, state when, where and how it occurred” which instruction precedes a blank space to be filled in. This space is not filled in other than by a penned dash mark. Another portion of said form is headed “Attending Physician’s Certificate” and it contains the following:

“Did this accident or injury arise out of patient’s employment? Yes — , No_X-.”

Immediately following that question is the following:

“If ‘yes,’ explain-

Said Physician’s and Surgeon’s Statement is dated April 21, 1970, and was signed by both Dr. Purvis and by James H. Cannon, the husband of the appellee.

Dr. Purvis, when asked when the appel-lee first told him that there was any relationship between her back pain and the activities of her job, stated:

“I, frankly, don’t remember. She may have mentioned this to me at some time along the course of my treating her; exactly when, I don’t know. Of course, my attention was drawn more forcibly to it when I became aware of the fact that I was going to have to give a deposition in this thing and that this was what she was referring to, and we discussed it again yesterday. But, as I say, she may have mentioned this over a period of time. At the time I was really not too particularly interested in that point and I did not — apparently did not pursue it any further than the fact that she just bent over and picked something up.”

The record does not disclose how the Travelers Insurance Company’s claim form came into the possession of Dr. Purvis and why it was completed by him. There is testimony by the appellee that the employer made the decision whether a particular medical bill was to be paid by the Travelers Company, which carried the hospitalization coverage, by the Aetna Company, which carried the workmen’s compensation coverage, or by the Metropolitan Company, which carried the nonoccupational disability coverage. Thus, the likelihood is that the Travelers form was supplied by the employer to Dr. Purvis. This would be consistent with the testimony of Mr. Modglian, the personnel relations manager of the employer, who stated that his first knowledge that the plaintiff was claiming, that her disability and injury resulted from the accident of January 13, 1969, was imparted to him on or about January 8, 1971, in a report from Dr. Wallace following an examination by the latter of the appellee to determine whether or not she was able to return to work at that time.

We think it also relevant that during periods of disability following the accident of January 13, 1969, the appellee filed several claims for disability benefits with the Metropolitan Life Insurance Company, which provided such coverage for the employees of the defendant employer, and that upon the forms provided for making said claims appeared the following:

“6. If an accident was involved, answer the following:
(a) When did the accident happen? Date.
(b) Were you at work when the accident happened? □ Yes □ No
(c) Give a brief description of the accident.

The appellee did not fill in the blanks provided in said question 6 or otherwise give the information called for with regard to an accident. Said claim forms also had a section provided for information to be supplied by the employer which contained question 5:

“Has the claim been considered in connection with the workmen’s compensation coverage? □ Yes ¡X] No”

It thus appears that the payment on May 29, 1970, of a portion of the bill of Dr. Purvis was made by neither the defendant employer nor its workmen’s compensation insurance carrier but was made by the Travelers Insurance Company under a group major medical and hospitalization insurance plan paid for partly by the employees and partly by the employer. Furthermore, there is nothing in the record to indicate that either the employee or the employer understood that said payment was being made for treatment of an injury by accident arising out of and in the course of the employee’s employment. The employee did not assert, and the employer did not concede, that the payment was for treatment of a compensable injury. Under these circumstances, we hold that said payment cannot be considered to be a “voluntary payment of compensation within the meaning of T.C.A., Section 50-1003, and that it, therefore, does not serve to toll the running of the statute of limitations. We hold that if the conduct of the parties indicates that payments of medical expenses are not made pursuant to an obligation imposed by the workmen’s compensation statutes, they do not toll the running of the statute of limitations. See: Riccioni v. American Cyanamid Company, 26 N.J.Super. 1, 96 A.2d 765 (1953); Pacific Employers Insurance Company v. Industrial Commission, 127 Colo. 400, 257 P.2d 404; International Harvester Company v. Industrial Commission, 410 Ill. 543, 103 N.E. 2d 109; Larson’s Workmen’s Compensation Law, Section 78.43(b).

The payments by the employer on January 6, 1971, and April 17, 1971, of certain bills of Dr. Sidney Wallace do not alter the result. Both bills were for examinations of the appellee to ascertain whether or not she was able to return to work and, therefore, under the holding of this Court in Webb v. Rossville Home and Auto Supply Company, 483 S.W.2d 579 (Tenn.1972) did not constitute “payments of compensation” within the meaning of the saving proviso contained in T.C.A., Section 50-1003. Furthermore, the payment made on April 17, 1971, even if treated as a payment of “compensation,” could not toll the statute of limitations because it was not made within one year of the time when the statute of limitations began to run on April 7, 1970, as required by T.C.A., Section 50-1003.

We, therefore, hold that there is no material evidence in the record to support the finding of the trial court that the employer or its workmen’s compensation insurance carrier made voluntary payments of compensation in the form of medical expenses for treatment of the petitioner within the meaning of T.C.A., Section 50-1003, which tolled the running of the statute of limitations. It is our conclusion that the statute of limitations of one year ran on this cause of action on April 7, 1971, more than a month prior to the filing of suit on May 28, 1971. Accordingly, the judgment of the trial court is reversed, the cause dismissed and all costs adjudged against the appellee.

FONES, C. J., and HARBISON, HENRY and COOPER, JJ., concur.

OPINION ON PETITION TO REHEAR

The appellee has filed a petition to rehear in this cause which has been considered by the Court. The petition does not present any new arguments, or new authority, nor point out any material fact which was overlooked by the Court in its original opinion.

Accordingly, said petition to rehear is denied. Knox v. Batson, 217 Tenn. 620, 399 S.W.2d 765 (1966).

FONES, C. J., and COOPER, HENRY, and HARBISON, JJ., concur.