author: GAERTNER, Judge.

text:
    Thomas E. METZGER, Plaintiff-Appellant, v. Pamela SCHERMESSER, David Shiro, and Daniel Conway, Defendants-Respondents.
    No. 48219.
    Missouri Court of Appeals, Eastern District, Division One.
    March 12, 1985.
    Robert F. Ritter, St. Louis, for plaintiff-appellant.
    Richard J. Mehan, Jr., St. Louis, for defendant-respondent Shiro.
    Don B. Sommers, St. Louis, for defendant-respondent Conway.
   GAERTNER, Judge.

Plaintiff, Thomas E. Metzger brought this action against defendants Pamela Schermesser, Daniel Conway and David Shiro for personal injuries Metzger suffered in an automobile collision. At the close of plaintiff’s evidence the trial court sustained Conway and Shiro’s motions for directed verdict. Metzger then settled his dispute with defendant Schermesser and appeals from the action of the trial court in sustaining the motions for directed verdict. We reverse and remand.

In reviewing a trial court’s grant of a motion for directed verdict after the close of a plaintiffs evidence, we “consider the evidence in the light most favorable to the plaintiff with all reasonable inferences to be drawn therefrom.” Garrett v. Joseph Schlitz Brewing Company, 631 S.W.2d 652, 654 (Mo.App.1982).

About 12:30 a.m. on October 30, 1976, plaintiff drove his automobile through the intersection of Lemay Ferry Road and Reavis Barracks Road. He heard the collision of vehicles driven by Conway and Shi-ro occur behind him.

Plaintiff adduced evidence from which a jury could have found the negligence of both drivers contributed to this intersection collision. Conway admitted he never saw Shiro’s automobile before the accident. The evidence is susceptible, by mathematical computation of relative speeds and distances, of proving Shiro should have known of the danger in time to have avoided the collision. For the purposes of this appeal the defendants concede their negligence in causing the first collision may be assumed.

Upon hearing this collision, plaintiff stopped his car and went back to the scene of the accident to see if anyone was hurt or needed assistance. Plaintiff and a passenger in his car, Scott Dowd, then helped Conway, Shiro and their passengers out of the wrecked vehicles to the side of the road. The Shiro vehicle blocked both northbound lanes of traffic. The intersection was dimly lighted and a heavy rainstorm further impaired visibility. Metzger went back to the Shiro vehicle to turn on its emergency flasher lights. Pamela Schermesser, who was northbound on Le-may Ferry, drove her vehicle into the Shiro vehicle while Metzger was inside of it, thereby causing injury to Metzger.

It is axiomatic that the mere fact that injury follows negligence does not necessarily create liability. Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240, 245 (1955). Plaintiff must also prove the negligent conduct amounted to a violation of some duty owed to him and that the conduct was an efficient and proximate cause of his injury. Gass v. Knittig, 396 S.W.2d 26, 28 (Mo.App.1965). Here, defendants argue that their assumed negligence in causing the first collision was neither a violation of any duty owed to plaintiff nor a proximate cause of his injuries.

While it is true that defendants owed no duty to plaintiff at the time of the first collision because plaintiff was not then endangered by their conduct, that fact alone does not relieve them of liability for his subsequent injuries. The foreseeability of rescue efforts brings the rescuer within the scope of the violated duty.

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the impe-rilled victim; it is a wrong also to his rescuer.

Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E. 437 (1921). Not only is a wrong to the tortfeasor's victim a wrong to the victim’s rescuer, but also a wrong which endangers only the tortfeasor himself is a wrong to the rescuer. See Dodson v. Maddox, 359 Mo. 742, 223 S.W.2d 434 (1949). Although Metzger and Dowd had escorted Conway, Shiro and their passengers to safety before Schermesser arrived on the scene, Metzger’s action in attempting to turn on the emergency flashers of Shiro’s automobile was still part of the rescue. Only the focus of the rescue had changed — from rescuing Conway, Shiro, et al. to preventing the perceived potential for harm to other motorists posed by the wreckage.

The more troublesome issue is that of the causal connection, in law, between the negligence of Conway-Shiro and the injuries sustained by plaintiff. “To be a legal cause of harm to another one’s conduct must be a substantial factor in bringing about the harm. Restatement of Torts, 2nd, § 431....." Ricketts v. Kansas City Stockyards Company of Maine, 484 S.W.2d 216, 221-22 (Mo. banc 1972). Determination of substantiality and proximity of the causal relationship between negligence and injury is dependent upon the particular facts of each case and it is seldom that one decision controls another. Price v. Seidler, 408 S.W.2d 815, 820 (Mo.1966); Strake v. R.J. Reynolds Tobacco Co., 539 S.W.2d 715, 718 (Mo.App.1976). In discussing “proximate cause” or “legal cause”, it has been said “[tjhere is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion.” Prosser and Keeton on Torts, § 41 (5th Ed.1984).

Defendants do not contend their negligence in causing the first collision was not a cause of the second collision. Indeed, such an argument would be untenable for the second collision could not have occurred “but for” the first collision with its resultant blockage of the two northbound lanes of traffic. Rather, they argue that their negligence was not a proximate cause of plaintiffs injury. They contend plaintiff’s injuries were caused by the intervening negligence of Schermesser and that whatever negligence they may have been guilty of was antecedent and remote. Defendants rely upon a sentence taken from our opinion in Strake v. R.J. Reynolds Tobacco Co., supra; “ ‘the proximate cause of an event is that which, in a natural and continuous sequence, unbroken by any new cause, produces the event without which the event would not have occurred.’ ” 539 S.W.2d at 718, quoting King v. Ellis, 359 S.W.2d 685, 688 (Mo.1962). We find the ensuing sentence of the Strake opinion equally relevant. “Generally, an efficient, intervening cause is a new and independent force which so interrupts the chain of events that it becomes the responsible, direct, proximate and immediate cause of the injury, but it may not consist merely of an act of concurring or contributing negligence.”

In Strake a rear-end collision occurred on an icy street about 9 a.m. The drivers exited their respective cars and thereafter moved both vehicles in such a manner that the traffic lanes remained partially blocked. Other traffic continued to drive past the scene in safety. While the drivers were exchanging information, a third automobile slid into the first cars and caused plaintiff’s injuries. This court held the negligence of the third driver to be an independent force rather than concurring or contributing negligence, thereby relieving the first rear-end-er of responsibility.

The interruption of the chain of events and the break in the continuous sequence in Strake is shown by the fact that other drivers, in broad daylight, avoided the cars involved in the first accident. Those cars obviously did not present a continuing hazard. In this instant case, the opposite is demonstrated by the perceived need to turn on the emergency flasher lights because of the darkness and the weather conditions, and particularly by the fact the first car to come along after the original collision could not avoid striking the Shiro vehicle. The obstruction of both northbound lanes of a dimly illuminated intersection in a heavy rainstorm was not a mere circumstance, but constituted a continuing breach of the duty owed to oncoming motorists and to those who would seek to warn of the negligently created hazard. This breach would persist until warning lights were turned on or until conditions changed to alleviate the danger. Thus, the negligence of Schermes-ser did not constitute a break in the continuous sequence or an interruption of the chain of events, but was rather conduct which resulted in harm only by reason of its combination and concurrence with the earlier negligence.

In arguing that Schermesser’s negligence was an intervening force relieving them of liability on account of their earlier negligence, Conway and Shiro stress the estimated 5 to 10 minute lapse between the first and the second collision. Although the word “intervention” implies a temporal succession of events, time alone is not the criterion by which the legal import of an intervening act is measured. Rather, the issue is whether or not the intervening act so supersedes the earlier conduct as to excuse responsibility for the consequences thereof. See Restatement of Torts, Second, § 440 to 453. Particularly appropriate to the instant case is § 447:

The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if
(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or
(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or
(c) the intervening act is a normal consequence of a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent.

While all three of these alternatives are applicable to the facts of this case, subsection (c) is particularly appropriate. The normal consequence of the Conway-Shiro collision with its resultant obstruction of both northbound lanes of a dark street in a heavy rainstorm was that an oncoming car would run into the vehicles. Schermesser’s conduct was not extraordinarily negligent. Here, again, the distinction between this case and Strake is evident. There, because other traffic had passed the original collision vehicles in safety, the negligence of the driver who failed to do so can be said to be extraordinary by comparison.

Especially in this era of comparative negligence and apportionment of relative fault, the respective degree of contribution of the negligence of multiple tort-feasors is generally a jury question. Where there is a question upon which reasonable minds may differ regarding the foreseeability of the subsequent negligence acting upon antecedent negligence it is proper to permit a jury to determine whether the antecedent negligence was totally superseded or was contributory, and, if so, in what degree.

Accordingly, the trial court erred in holding, as a matter of law, that a jury question did not exist with regard to the proximate causation of plaintiff’s injuries by reason of the negligence of Conway and Shiro. The cause is reversed and remanded for a new trial as to those defendants.

PUDLOWSKI and KAROHL, JJ., concur.


source: Caselaw Access Project

author: SATZ, Judge.

license: Public Domain

text:
    Mae Belle GLICKERT, Claimant-Appellant v. SOUNDOLIER, INC., and Bituminous Casualty Corp., Employer-Insurer-Respondent.
    No. 48367.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 12, 1985.

      Douglas W. O’Neill, St. Louis, for claimant-appellant.
    Frank J. Lahey, St. Louis, for employer-insurer-respondent.
   SATZ, Judge.

Claimant appeals from an award of the Labor and Industrial Relations Commission (Commission). Claimant was injured when she fell at work. The Commission granted claimant $370 for emergency medical treatment and x-ray costs, but denied compensation for permanent partial disability and the costs of 14 treatments by a chiropractor. We affirm in part, reverse in part and remand.

The Commission found claimant suffered no permanent partial disability and denied her compensation. Claimant contends the finding was against the overwhelming weight of the evidence and should be set aside. We disagree.

We affirm the findings of the Commission, if they are supported by competent and substantial evidence. E.g., Blissenbach v. General Motors Assembly Division, 650 S.W.2d 8, 11 (Mo.App.1983). We view the evidence in the light most favorable to the Commission's findings, ignoring evidence to the contrary, e.g., Matthews v. Roadway Express, Inc., 660 S.W.2d 768, 769 (Mo.App.1983), and we defer to the Commission’s determination of credibility and resolution of conflicting evidence. E.g., Henderson v. Chrysler Corp., 601 S.W.2d 645, 648 (Mo.App.1980).

From our review of the record, we find the Commission’s finding of no permanent partial disability was supported by competent and substantial evidence. Therefore we deny claimant’s first point.

Claimant next argues the Commission erred in excluding the deposition testimony of claimant’s chiropractor, Carl Tiem-ann. We agree.

In addition to other medical treatment, claimant was attended to by Dr. Tiemann about 14 times. Dr. Tiemann’s office records were made available to the employer’s attorney on November 8, 1982. These records included a complete account of Dr. Tiemann’s treatment and his fees. The hearing on the claim was set for November 15, but was continued to November 30. On November 22, claimant’s attorney received a medical report from Dr. Tiemann, which, in turn was furnished to employer’s counsel on November 24, 1982.

At the hearing on November 30, 1982, the Administrative Law Judge (AU) refused to permit Dr. Tiemann to testify because claimant’s attorney had not provided employer’s attorney with Dr. Tiemann's “medical report” within seven days prior to the hearing as required by § 287.210.3, RSMo Supp.1984. The AU gave claimant’s attorney the alternative options of continuing the hearing, or proceeding with the hearing with the right to submit Dr. Tiemann’s deposition as an offer of proof supporting claimant’s objection to the rejection of Dr. Tiemann’s testimony. Claimant opted for the latter alternative.

Subsequently, Dr. Tiemann’s deposition was filed. The AU noted:

“Attorney for claimant requests admission. Attorney for employer-insurer objects. See my ruling in my award. Case is taken as submitted.”

In his findings, the AU admitted the deposition testimony of Dr. Tiemann because “it simply reflects that which his records indicate.” The Commission reversed the AU, ruling that Dr. Tiemann’s deposition was not admissible because his medical report was not provided to the employer-insurer within seven days of the hearing as required by § 287.210.3. The Commission then denied claimant reimbursement for Dr. Tiemann’s fees because there was nothing in the record to verify the reasonableness of the fees. That verification was established only by Dr. Tiemann’s deposition testimony.

Acknowledging the Commission’s administrative expertise, we nonetheless find the Commission’s application of § 287.-210.3 in this instance too literal and narrow. Section 287.210.3 requires an exchange of all medical reports at least seven days before the scheduled date of the hearing. This statute is a discovery tool designed to prevent surprise and inform the parties as to all medical findings and opinions. Griffin v. Evans Electrical Construction Co., 529 S.W.2d 172, 179 (Mo.App.1975); Weilert v. Fruin-Colnon Corp., 447 S.W.2d 781, 786 (Mo.App.1969). Read literally, the statute grants no discretionary authority to the AU or Commission in applying sanctions for non-compliance — if the report of a physician is not furnished within seven days, the physician cannot testify at the hearing. See e.g., Johnson v. Park N Shop, 446 S.W.2d 182, 187 (Mo.App.1969).

For its ruling precluding Dr. Tiem-ann’s testimony on the reasonableness of his fees, the Commission relied on Springett v. St. Louis Independent Packing Co., 431 S.W.2d 698, 706 (Mo.App.1968), the leading case on this issue. Springett and its progeny, however, simply hold and teach that a doctor is only allowed to testify to those facts included in reports timely furnished, or, conversely, a doctor cannot testify to facts not included within his report. See Howard v. Fred Weber, Contractor, Inc., 465 S.W.2d 861, 865-66 (Mo.App.1971); Weilert v. Fruin-Colnon Corp., supra at 787; and Johnson v. Park N Shop, supra at 187. See also Weinbauer v. Grey Eagle Distributors, 661 S.W.2d 652, 656 (Mo.App.1983).

But, neither statutory provisions, case law, nor common sense requires that medical fees be included in the medical reports to be exchanged. Section 287.210.5 defines medical report as “the report of any physician made on any printed form authorized by the division or any complete medical report.” Complete medical report, in turn, means “the report of a physician giving patient’s history, complaints, details of the findings of any and all laboratory, x-ray and all other technical examinations, diagnosis, prognosis, nature of disability, if any, and an estimate of the percentage of permanent partial disability, if any.” All of these elements required in the report pertain specifically to the actual treatment, prognosis and diagnosis of the patient. What an opposing counsel expects and wants is the doctor’s medical evaluation. Common sense dictates, therefore, that fees would not be included even in a medical report that complied with the seven-day rule.

Admittedly, § 287.210.3 says that the report must contain “all" findings and opinions. Lay people may be bemused or perplexed by the workings of the legal mind which makes “all” not mean “all.” But, it would be incongruous, to say the least, to preclude a doctor whose medical report is “complete” as to diagnosis, treatment and prognosis from testifying to the reasonableness of his fees simply because his report made no mention of his fees. This draconian interpretation is not necessary. The seven-day rule simply is inapplicable to testimony concerning fees. That being so, employer’s counsel here could not have been surprised nor prejudiced by allowing Dr. Tiemann to testify as to the reasonableness of those fees which had already been admitted into evidence. Since a treating physician establishes the reasonableness of his fees through testimony, see Richard B. Curnow, M.D., Inc. v. Sloan, 625 S.W.2d 605, 607 (Mo. banc 1981); Lange v. Kansas City Southern Ry. Co., 290 S.W.2d 71, 72 (Mo.1956), Dr. Tiemann’s deposition testimony as to the reasonableness of his fees should have been allowed into evidence and taken into consideration by the Commission in determining the amount of claimant’s compensable injury.

We remand this cause to the Commission for reconsideration of the reasonableness of the chiropractic fees in light of the testimony erroneously excluded.

SMITH, P.J., and SNYDER, J., concur.

      . § 287.210.3 RSMo Supp.1984 reads:
      The testimony of any physician who treated or examined the injured employee shall be admissible in evidence in any proceedings for compensation under this chapter, but only if the medical report of the physician has been made available to all parties as in this section provided. Immediately upon receipt of notice from the division or the commission setting a date for hearing of a case in which the nature and extent of an employee’s disability is to be determined, the parties or their attorneys shall arrange, without charge or costs, each to the other, for an exchange of all medical reports, including those made both by treating and examining physician or physicians, to the end that the parties may be commonly informed of all medical findings and opinions. The exchange of medical reports shall be made at least seven days before the date set for the hearing and failure of any party to comply may be grounds for asking for and receiving a continuance, upon proper showing, by the party to whom the medical reports were not furnished. If any party fails or refuses to furnish the opposing party with the medical report of the treating or examining physician, as in this section provided, upon the objection of the party who was not provided with the medical report, the physician shall not be permitted to testify at that hearing.

      . Claimant argues that the office records constituted a complete medical report within the in-tendments of the statute because the records contained all required information. We need not address this issue in order to reach a decision in this case.

      . The record which contained a listing of the fees charged to claimant were admitted under § 287.140.6, RSMo Supp.1984, which states: Every hospital or other person furnishing the employee with medical aid shall permit its record to be copied by and shall furnish full information to the division or the commission, the employer, the employee or his dependents and any other party to any proceedings for compensation under this chapter, and certified copies of the records shall be admissible in evidence in any such proceedings.


author: KAROHL, Judge.

text:
    Clarence J. PEARSON, Petitioner-Appellant, v. Constance J. PEARSON, Respondent.
    No. 48370.
    Missouri Court of Appeals, Eastern District, Division One.
    March 12, 1985.

      William Francis Klages, St. Louis, for petitioner-appellant.
    Charles J. McMullin, St. Louis, for respondent.
   KAROHL, Judge.

Petitioner husband appeals only those provisions of a dissolution decree relating to an award of personal property, limited maintenance, attorney’s fees and an interest in a house to respondent wife. The dissolution of marriage is not appealed.

The parties were married in April 1971, separated in July 1976 and the dissolution granted on December 15, 1983. No children were born of the marriage. However, both parties were parents of children by previous marriages. Wife has been employed by the St. Louis City Board of Education for twenty years. At the time of trial she described herself as a math specialist. Husband has been a teacher in the St. Louis school system for seventeen and oné-half years and an employee of the Herbert Hoover’s Boys Club for sixteen years. He testified that his total monthly take home pay was approximately $1,200, $608.00 as a school teacher. Wife testified but did not mention the amount of her earnings or expenses. The parties’ income and expense and financial statements were not offered in evidence. The parties were separated eight and one-half years before the dissolution was granted. There is no evidence that husband contributed any support for the wife during the period of separation.

Husband contends the trial court erred in awarding limited maintenance of $50.00 per month for a period of sixty months, attorney’s fee of $1,000, six items of personal property with designated values which husband was to transfer to the wife or to pay the designated values on any items not transferred, and in ordering husband to deed to wife a one-half interest in a residence purchased by him after the parties separated.

Our standard of review of the points on appeal is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The burden of demonstrating error and the incorrectness of the judgment below is upon appellant. Suesserman v. Suesserman, 539 S.W.2d 741, 743 (Mo.App.1976).

We find no error in the award of personal property or in the alternative the value of items not delivered. Husband acknowledged wife’s ownership of the six items, did not dispute the values she assigned to each and said that two of the six were definitely at his home. He did not know whether or not he had the other four items but they may be contained in boxes at his home. He had no objection that they be returned. Husband’s sole point with regard to these items is that there was no evidence he had them in his possession and control. This point is denied because of the foregoing evidence and because wife testified they were in his possession.

Husband objects to the award of a $1,000 attorney’s fee payable to wife’s attorney on the grounds that it is not supported by the evidence, is excessive both because husband is unable to pay and wife is able to pay. We reject this argument because we find no abuse of discretion in the award of the fee. Brueggemann v. Brueggemann, 551 S.W.2d 853, 859 (Mo.App.1977). This court en banc there held that § 452.355 RSMo 1978 authorizes the court, “... after considering all relevant factors including the financial resources of both parties may order a party to pay a reasonable amount for the costs to the other party of maintaining or defending any proceeding under Sections 452.300-452.415 and for attorney’s fees ...” Id. The skimpy evidence before the trial court supports the award. There was evidence of husband’s income and expenses but no direct evidence of the wife's income and expenses. The evidence supports a finding of the trial court of the husband’s ability to pay which is not offset by evidence of the wife’s ability to pay. Further the court’s discretion is not limited only to the parties’ financial standing. Kieffer v. Kieffer, 590 S.W.2d 915, 918 (Mo. banc 1979). Point denied.

Husband contends that the award of limited maintenance in the amount of $50.00 per month for a period of sixty months was unsupported by the evidence. In his view the evidence established that wife was able to support herself on her income as a school teacher with twenty years seniority and gross monthly wages of $2,725 per month. There may have been information available as to the extent of her wages and her expenses but they were not presented in evidence. Such information is reflected on her income and expense and financial statements filed with the court and made part of the legal file filed with this court. This information however was not made part of the evidence. Further there was no evidence of the manner in which she was supported during the lengthy separation of the parties. On this point the only evidence was her testimony that she was a twenty year employee of the St. Louis school system. She asked periodic “alimony” because of an existing medical condition which had caused a permanent limp and which may worsen so as to adversely effect her ability to work. Husband questions the award only on the basis that the evidence of the amount of her earnings made the award unnecessary and therefore unauthorized under § 452.335 RSMo 1978. This point is denied because of the failure in the evidence to support husband’s argument.

Husband’s last point requires a further statement of facts. The parties separated in July 1976. Seventeen months later husband decided to buy a house. At husband’s request wife freely signed the purchase money deed of trust in favor of Pulaski Service Corporation, Trustee for Pulaski Savings & Loan Association. Husband borrowed $28,500 on a purchase price of $30,000. It appears that he paid approximately $2,300 from his own funds. After the purchase he paid all of the monthly payments from his own funds including payments after this suit was filed. It may be that the down payment and closing expenses and the equity payments were funds acquired from non-marital funds or after the separation of the parties and to that extent the court erred in finding all of the equity in the real estate to be marital property. There is a statutory presumption that property acquired during the marriage is marital property. § 452.330 RSMo Supp.1981. However “[e]ach spouse has a common ownership in marital property which vests not later than the time of commencement by one spouse against the other of an action in which a final decree is entered for dissolution of marriage ...” The parties stipulated that wife made no contribution toward the purchase of the real estate but that she had an interest as spouse.

We conclude that the record is insufficient to determine the nature and extent of either the husband’s or the wife’s interests in the property. The general warranty deed by which the husband acquired his interest in October of 1977 provides that husband receive a life estate to include exclusive use and benefit of the property and to sell, mortgage, convey or in any manner dispose of the fee simple title to the property, all in his sole discretion and by his sole deed or other instrument. Dorothy Cash was to receive as a remainder-man any undisposed interest. Dorothy Cash appeared by affidavit and waived any interest in the property. Wife accommodated her husband by signing the purchase money deed of trust. Wife requested an interest in the real estate only if she did not receive the personal property items, attorney’s fees and “alimony.” [We interpret this testimony to mean periodic maintenance], One further complication is discernible from the evidence. At the time of the dissolution hearing husband’s wages were subject to a garnishment by a judgment creditor. The judgment for $14,000 was owed by reason of an automobile accident.

The evidence does not detail whether the judgment was entered or registered in the City of St. Louis where the residence is located or when it was entered and we cannot determine whether a judgment lien on the real estate is involved. § 511.350 RSMo 1978. Further there is no evidence of the value of the real estate at the time of the dissolution or of the balance due on the purchase money deed of trust. Accordingly it is not possible to determine the amount of equity, if any, which the Pear-sons may have in the real estate.

The court found the general warranty deed by which husband acquired the property and the deed of trust to be fraudulent and void as to wife. He therefore ordered “... that said deeds be and are hereby set aside and for naught held and declared of no force and effect. And the court further orders Petitioner [husband] to sign and execute all documents required to transfer and convey an undivided V2 interest in said real property to Respondent, Constance J. Pearson.” The court apparently intended to amend the life estate with powers provision in the general warranty deed but not to return the property to the sellers. Pulaski Service Corporation and Pulaski Savings & Loan Association were not parties before the trial court. They have intervened in this court. Husband and wife have agreed in this court that the decree must be amended so as not to effect either the acquisition of the property or the lien in favor of intervenors. To that extent the decree must be amended. Husband is before the court and has the power to convey a fee interest, subject to the deed of trust and perhaps subject to the judgment lien. The trial court may hear such further evidence as will be required to determine the nature and extent of separate and marital property included in the real estate and then award or divide the real estate. Such evidence will include: (1) the market value of the property; (2) the balance due on the deed of trust; (3) the appreciation in value after the petition for dissolution was filed attributable to payments after suit; and, (4) the effect of the judgment lien against husband, if any. The additional evidence may result in a finding that husband has no equity in the property. In that event the court may award the property to husband without further order. If the evidence discloses that the husband has an equity interest in the property the court may determine the extent, if any, of his separate interest and the extent of the marital property interest and order husband to execute a deed to himself and to wife so as to reflect the findings of the court. This deed will not adversely affect the intervenor’s interests or the judgment creditor’s interests. It would also serve to cure any title defect that may exist because of the remainder interest of Dorothy Cash in the acquisition general warranty deed. Dorothy Cash is to receive in remainder only such interest as is undisposed of at the time of husband’s death.

We affirm the decree of dissolution in all respects except Paragraph 5 of the decree. We remand to the trial court for further consideration of the real property acquired by husband in the general warranty deed from Ranee James and Videlia James, his wife, dated October 12, 1977. The trial court will be guided by the existing and subsequent evidence with regard to the real estate and dispose of it according to the terms of § 452.330 RSMo Supp.1981.

PUDLOWSKI, P.J., and GAERTNER, J., concur.


author: SNYDER, Judge.

text:
    FRANCIS HOWELL SCHOOL DISTRICT, Plaintiff-Respondent, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION, DIVISION OF EMPLOYMENT SECURITY, et al., Defendants-Appellants.
    No. 48482.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 12, 1985.

      Susan P. Haag, Rick V. Morris, Jefferson City, for Mo. Div. of Employment Sec.

      Alan J. Downs, Jefferson City, for Labor and Indus. Relations Com’n.
    Paul F. Niedner, St. Charles, for plaintiff-respondent.
   SNYDER, Judge.

The appellants, Labor and Industrial Relations Commission, et al., appeal from a circuit court judgment reversing the Commission’s findings regarding a bus driver strike against the Francis Howell School District. The circuit court reversed the Commission’s determination that the striking drivers would be eligible for unemployment benefits after a four week penalty for statutory misconduct in staging an illegal strike. The judgment is affirmed in part, reversed in part, and the cause is remanded.

Appellants challenge the circuit court’s finding that, as a matter of law, persons who cease work because of an illegal labor dispute leave their work voluntarily for purposes of unemployment benefits. Appellants also charge the circuit court erred in finding the claimants were not available for work and in failing to decide whether four of the claimants refused suitable work.

The discharge of two Francis Howell School District bus drivers, one of them a shop steward, became final on September 12, 1979. On September 13, approximately 35 of the 57 drivers failed to report for work, and instead picketed their employer. The bus drivers were under a May 3, 1979 court order restraining them from striking.

On September 14,1979 the school district sent each striking worker a mailgram stating that his employment would be terminated if he did not report for work on Monday, September 17. September 17 had been set previously as the day for drivers to bid on the routes they were to drive; the school district did not allow striking drivers to bid on the routes at 9:00 a.m. after they had failed to report for work at 7:00 a.m.

The employer began hiring workers to replace the strikers. In early October the school district sent letters to some of the striking drivers, offering them the chance to re-apply for work. The drivers who responded to the school district’s offer to apply did not accept work because their pay and seniority would have been less desirable than they were before the strike.

The employees applied for unemployment compensation. They pursued their claims through an employment security deputy, the appeals tribunal, the Labor and Industrial Relations Commission, and finally the Circuit Court of St. Charles County, from whose judgment the Commission appeals.

The deputy found that the claimants were discharged for their misconduct in participating in an illegal strike, and disqualified them for benefits for four weeks as authorized in § 288.050.2. RSMo. Cum. Supp.1984.

The appeals tribunal modified the deputy’s determination by increasing the disqualification time from four weeks to eight weeks, the maximum under the statute except in the case of aggravated misconduct.

The Commission was aware that most claimants engaged in the illegal work stoppage knew it was unlawful for them to strike and, more serious, knew they were enjoined from striking by a circuit court temporary restraining order. Nevertheless, the Commission failed to find there was aggravated misconduct under § 288.-050.2 RSMo.Cum.Supp.1984, overruled the eight week disqualification determination of the appeals tribunal, and reinstated the lesser four week disqualification.

The circuit court held that: (1) the record showed that the claimants were not available for and actively seeking work; (2) the claimants’ strike was illegal and forbidden by a court order, therefore not a “labor dispute” within the meaning of § 288.040.-4(1) RSMo.Cum.Supp.1984; and (3) the claimants voluntarily quit their jobs rather than being discharged by their employer.

An appellate court reviews the decision of the Commission and not the findings of the circuit court. Chrysler Corp. v. Division of Employment Security, 628 S.W.2d 359, 360[1] (Mo.App.1981). The findings of the Commission on the facts, if supported by competent and substantial evidence, shall be conclusive in the absence of fraud, and the jurisdiction of the reviewing court shall be confined to questions of law. § 288.210 Division of Employment Security v. Labor and Industrial Relations Commission, 625 S.W.2d 882 (Mo.App.1981).

The circuit court correctly held that the record on appeal does not include evidence that the bus drivers had been available for and “actively and earnestly seeking work” as § 288.040.1(2) RSMo.Cum. Supp.1984 requires. The only evidence which appears is that four of the drivers were invited to apply for limited re-employment with the school district at lower pay.

The offer and refusal of these jobs is not enough evidence for this court to determine the drivers’ eligibility for benefits. The cause is remanded to allow specific findings on whether the striking drivers were available for and actively and earnestly seeking work. John Epple Const. v. Labor & Industrial Relations Commission, 647 S.W.2d 926, 929 (Mo.App.1983).

The deputy’s determination contained no finding that the claimants were available for and actively seeking work, a prerequisite to the payment of benefits under § 288.040.1(1) RSMo.Cum.Supp.1984.

The appeals referee refused to require any evidence of availability for work because the deputy had made no finding of availability. Appellant’s counsel objected to this failure to receive evidence throughout the hearing.

The Commission said that the issue of availability was beyond the scope of the hearing and based that part of its decision on a “presumption” that claimants are able and available because of the requirement that they file a weekly claim card and visit the local office monthly.

Commission cited no law to support the existence of such a presumption. The statute and cases require a finding of availability by the deputy. John Epple Const. v. Labor & Industrial Relations Commission, supra.

The burden of proof on the right to unemployment benefits is on the claimant. Where there is no evidence in the record that a claimant is available for work, a decision that the claimant is eligible for benefits is unsupported by evidence and must be reversed. Lester E. Cox Medical Center v. Labor & Industrial Relations Commission, 593 S.W.2d 610, 612[1—3] (Mo.App.1980).

In Lester E. Cox Medical Center the court held that the determinations of the appeals tribunal and the commission upholding the deputy’s finding that claimant was qualified for benefits were not based on fact. So it is here.

There was nothing in the record to show why this essential element of eligibility for benefits was ignored except the original failure by the deputy to consider availability for work. The statute requires the deputy to find availability. The Commission’s decision as to all claimants must be reversed on this point.

Appellants rely on Chemtech v. Labor and Industrial Relations Commission, 617 S.W.2d 121 (Mo.App.1981), but Chem-tech is distinguishable. In Chemtech the deputy denied benefits because of a labor dispute. In the case under review the deputy awarded benefits without the essential finding of availability for work.

In Chemtech the appeals tribunal found there was no work stoppage and that claimants were not ineligible for benefits because of a labor dispute under § 288.040.5(1) RSMo.Cum.Supp.1984. The Commission denied the employer’s petition for review, thus upholding the appeals tribunal decision. The circuit court affirmed the denial and the employer appealed.

One of the points raised on appeal in Chemtech was the failure to find claimants were available for work. The court of appeals could not tell from the record whether a deputy had determined that the claimants were eligible for benefits after the appeals tribunal found that there was no stoppage of work. Apparently there never was a determination of eligibility. Therefore the court of appeals denied the point. In the case under review there was a determination of eligibility. Chemtech does not help appellants.

The circuit court, contrary to the Commission’s finding, held that because the strike was illegal, it could not be a “labor dispute.” Section 288.040.5 RSMo.Cum. Supp.1984 does not distinguish between legal and illegal strikes.

Whether claimants were unemployed because of a labor dispute is a fact question. Poggemoeller v. Industrial Commission, Division of Employment Security, 371 S.W.2d 488, 499[6—7] (Mo.App.1963). The statute refers to labor disputes, not strikes. There was substantial evidence to support the Commission’s factual determination that claimants were unemployed because of a labor dispute.

The circuit court also held that the striking employees voluntarily quit their jobs. The facts of the case, however, support the Commission’s determination that the employees were discharged on September 17, 1979. The employees refused to work and picketed to protest the firing of two fellow employees. The fact that the workers picketed indicates that they intended to strike, not to quit.

The employer justifiably discharged the employees who refused to work because the strike was wrongful. The mailgrams which the employer sent to striking workers threatened to discharge anyone who continued to strike on September 17, 1979.

Research revealed no Missouri cases distinguishing a quit from a discharge. Although not binding on this court, federal labor law provides some valuable guidance. In Diversified Case Co., Inc., 263 N.L.R.B. No. 119, 111 LRRM 1145 (1982), two employees failed to return to work after lunch because they were dissatisfied with certain pay deductions and shop conditions. The workers told their employer of their intent not to return. Their manager responded that failure to return would end their jobs. When they came to work the next day the employer refused to allow the two workers to work. The National Labor Relations Board held that the workers were discharged. The fact that they came in the next day indicated that they did not intend to quit.

In Ridgeway Trucking Co., 243 N.L.R.B. 1048, 1049 n. 8 (1979) enforced NLRB v. Ridgeway Trucking Co., 622 F.2d 1222 (5th Cir.1980), an employer’s telling recalcitrant employees to “work or leave” was held to be a discharge ultimatum.

In the light of the federal precedents the best interpretation of the cessation of employment in the case at bar is that the school district discharged the employees pursuant to their illegal job action. The employees did not quit, but were discharged for good cause.

The judgment of the circuit court is affirmed in its finding that payments to claimants were improperly made because there was no proof claimants were available for work and actively seeking work. The circuit court judgment is reversed in its finding there was no labor dispute under the statute and that claimants voluntarily left work on September 17, 1979.

The cause is remanded. Upon remand to the circuit court the cause should be returned to the Commission for additional findings of fact on claimants’ availability for work, if the Commission deems such a procedure necessary or advisable.

SMITH, P.J., and SATZ, J., concur.


text:
    In the Matter of the ESTATE OF Erna A. WARNER. Charles M. WARNER, Plaintiff-Respondent, Eileen C. Warner, Intervenor-Respondent, v. Charles F. WARNER, Personal Representative, Charles F. Warner & Nancy L. Warner, Individually as Legatees, Respondents-Appellants.
    No. 48576.
    Missouri Court of Appeals, Eastern District, Division One.
    March 12, 1985.

      Allan F. Stewart, Clayton, for respondents-appellants.
    Patrick J. Connaghan, St. Louis, for respondents.
   KAROHL, Judge.

Respondents-appellants, personal representatives and legatees of Erna Warner, appeal probate court order determining title to real property. The court found petitioner Charles Warner succeeded to “full ownership of the property and full title was vested in him” at the time of the death of Erna Warner as the survivor of a tenancy by the entirety. After the death of Erna Warner, Charles Warner deeded his interest in the real estate to intervenor Eileen Warner.

Charles and Erna Warner were married in 1934. The legatees are children of Charles and Erna Warner. The subject real estate was conveyed to Charles and Erna Warner as husband and wife in 1964. In 1970 Charles obtained an ex parte decree of divorce in the State of Chihuahua, Republic of Mexico. Erna had previously filed a petition for separate maintenance in St. Louis County, Missouri. As a part of that proceeding she attempted to stop the Mexican divorce by obtaining a restraining order. Although the restraining order is dated before the Mexican divorce decree Charles claimed he was unable to stop the proceedings. After the Mexican decree Charles married Eileen Warner, once in Mexico and then later in Kansas.

In 1971 Erna refused to recognize the validity of the Mexican divorce and obtained a decree of separate maintenance from the circuit court in St. Louis County. Respondent husband Charles Warner did not appear and the decree was granted by default. There is no indication in the record that the validity or invalidity of the Mexican divorce was presented as an issue to the court. In 1974 Erna filed a motion to require Charles to make the maintenance payments to the court. Charles filed a motion to quash Erna’s motion, a motion to vacate the separate maintenance decree based on the existence of the Mexican divorce and a cross-bill for dissolution of marriage. The trial court granted a dissolution of marriage and reduced the separate maintenance award of $600.00 a month to a dissolution maintenance award of $300.00 per month. Erna appealed. See In re Marriage of E.A.W., 573 S.W.2d 689 (Mo.App.1918). We there held that the trial court was not authorized to grant a dissolution of marriage in the same action in which it rendered a decree of separate maintenance but approved the reduction in the monthly award. We did not hold that the Missouri dissolution was barred by a prior Mexican divorce and the trial court ruling in that regard dissolved with the appellate opinion. From the record facts in that opinion it was said, “[t]he divorce was granted, however, and after marrying another woman, defendant moved to Kansas City.” However this issue was never decided and on the issue of the validity of the Mexican divorce neither the principals of collateral estoppel or res judicata are applicable.

In 1981 Erna died testate leaving the real property at issue here to two of her children. Following Erna’s death Charles conveyed by a quit claim deed his interest in the property to Eileen. Charles, and his grantee Eileen, maintain that the property was owned by Charles and Erna as a tenancy by the entirety and that upon Erna’s death Charles had full title to the property which he conveyed to Eileen. Appellants argue that Charles is estopped from claiming that he and Erna were married when she died because he relied on the validity of the Mexican divorce and remarried.

Although the parties have requested that we determine whether the Mexican divorce was valid we decline to do so as it is not necessary to resolve the issue of who has title to the property. We also find it unnecessary to consider the estate’s alternative argument with regard to adopting the doctrine of divisible divorce. See Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948), and Urbanek v. Urbanek, 503 S.W.2d 434, 439 n. 2 (Mo.App.1973). As a further preliminary matter we note that respondent Charles Warner and intervenor Eileen Warner occupy the position of petitioners in this proceeding and the issue of estoppel upon the estate by reason of decedent’s position that the Mexican divorce was invalid (which petitioners urge) is not before us.

In order for Charles to convey fee simple title to the land he and Erna must have been married at the time of her death. Erna repeatedly denied that they were divorced. Charles, however, acted as if they were divorced and remarried. In Missouri a subsequent marriage is presumed valid. Klein v. Laudman, 29 Mo. 259, 261 (1860). See also In re Marriage of Sumners, 645 S.W.2d 205, 208 (Mo.App.1983). As the Supreme Court noted in Carr v. Carr, 232 S.W.2d 488, 489 (Mo.1950) “where a valid first marriage has been shown, ... it may be presumed that, at the time of the second marriage, the first marriage had been dissolved. .. The presumption of the validity of the last marriage may be repelled only by the most cogent and satisfactory evidence.”

It is also the rule that a spouse who .remarries may not claim the divorce is invalid. Sumners, 645 S.W.2d at 209. Consequently Charles is estopped from maintaining that he was married to Erna at her death due to an invalid Mexican divorce. It would be inequitable to permit Charles who was remarried in the apparent belief he was divorced to reap the benefits of a marriage he previously denied by word and deed. Sumners, 645 S.W.2d at 209. See also Smoak v. Smoak, 269 S.C. 313, 237 S.E.2d 372 (1977); Schlinder v. Schlinder, 107 Wis.2d 695, 321 N.W.2d 343 (Ct.App.1982).

Charles’ action estopped him from denying the validity of the divorce. He has no standing to assert that the land in question was held as tenants by the entirety. Consequently he did not own a fee simple title to convey to Eileen. By operation of law he had only an undivided one-half interest in the property. The other half interest belonged to Erna and became a part of her estate at her death.

Not only is Charles estopped from denying the validity of the divorce but so is Eileen. Third parties are estopped from denying the validity of the divorce if their claim is derived from a person who is es-topped or if they were a part of the divorce. Restatement (Second) Conflict of Laws, § 74 comment b (1971). Eileen and Charles were married in Mexico immediately after the Mexican decree. They remarried in Kansas. It would be inequitable to permit Eileen to claim that the divorce is invalid.

The probate court erred in not applying the rule of estoppel announced in Sum-ners. The parties were estopped by the presumption of validity of the marriage of Charles Warner to Eileen Warner. Accordingly the order of the probate court misapplied the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

We reverse the judgment of the probate court with directions that an undivided one-half interest in the real estate located at 9050 Laurel Crest Drive, Crestwood, Missouri as legally described in the inventory be returned to the inventory as property of decedent’s estate.

PUDLOWSKI, P.J., and GAERTNER, J., concur.

      . There is evidence that Charles attempted to have the Mexican decree withdrawn but was unable to do so.

      . Our detailed study of the St. Louis County legal separation file results in the conclusion that the validity of the Mexican divorce has never been litigated to a finding or judgment. It was raised in pleadings filed by Charles Warner but the pleadings were either withdrawn or evidence not offered to support the propositions alleged.

      . See In re Marriage of Sumners, 645 S.W.2d 205, 209 (Mo.App.1983) for a full discussion of estoppel and divorce decrees and the effect of the death of a first spouse.


author: CRANDALL, Judge.

text:
    Brooksie WOODS, Respondent, v. NATIONAL SUPER MARKETS, INC., Appellant.
    No. 48702.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 12, 1985.

      Ann Elizabeth Hamilton, St. Louis, for appellant.
    Stephen Frank Meyerkord, St. Louis, for respondent.
   CRANDALL, Judge.

Defendant, National Super Markets, Inc., appeals from a judgment entered on a jury verdict in favor of plaintiff, Brooksie Woods, in her action for damages resulting from bodily injuries suffered when she fell on defendant’s parking lot. The jury awarded plaintiff $35,000; but since the jury found her 25 per cent at fault under comparative negligence, judgment was entered for $26,250. We affirm.

Brooksie Woods was 78 years old at the time of this accident. She was grocery shopping at the National store at Newstead and Natural Bridge in St. Louis on November 16, 1981. When she left the store she walked across the store’s parking lot, and in doing so one of her feet struck an object on the ground. She was thrown forward and fell to the pavement. After she fell she looked around for the cause of the fall and saw a spike, about the size of her finger, sticking up from the ground.

Plaintiff introduced several photographs of the parking lot area into evidence. Though taken five months after the mishap, she identified the photographs as showing the condition of the parking lot the day she fell. They showed deteriorated, crumbling parking bumpers. They also showed spikes, used to hold the bumpers to the pavement, sticking up from the pavement where a bumper had been. The plaintiff testified it was such a spike which caused her to fall.

Plaintiff testified she had shopped at the store about once a week for twenty years and had walked across the parking lot on previous trips. She stated that she had noticed the deteriorating parking bumpers on previous trips to the store.

The manager of the store, Alfred Long whose deposition was read into evidence at trial, stated the parking bumpers had been installed on the store’s property by a contractor and that metal rods were used to hold them in place.

Defendant first claims that plaintiff failed to show the existence of a dangerous condition on the parking lot. Defendant’s main contention is that plaintiff’s trial testimony and pre-trial statements were so contradictory as to be void of any probative value.

The plaintiff, in a deposition, had stated she saw a spike in “the street where I fell.” On the day of the accident, plaintiff told an emergency room nurse she had fallen on the “sidewalk.” A medical report stated that she “fell in a defect in the sidewalk.” Plaintiff has filed a notice with the City of St. Louis stating she fell on an uneven and cracked “sidewalk.” Defendant argued at trial that since this notice was filed past a deadline set by law, plaintiff changed her story about where she fell when she learned she couldn’t recover from the City.

It is true that where a party relies on the testimony of a single witness to prove a given issue, and the testimony of such witness is contradictory and conflicting, one version thereof tending to prove the issue, the other tending to disprove it, with no explanation of the contradiction, and no other fact or circumstance in the case tending to show which version of the evidence is true, a submis-sible case is not made.

Hill v. Barton, 579 S.W.2d 121, 128 (Mo.App.1979).

This principle of law is subject to qualification. “As a general rule, parties are not bound by their own estimates of speed, distances, and locations. Hill, 579 S.W.2d at 128. (Emphasis added.) See also Skelton v. General Candy Co., 539 S.W.2d 605, 612 (Mo.App.1976). Also, “the jury has the right to believe a plaintiff is ‘wrong’ or ‘confused’ where there is inconsistent testimony.... And the jury can rely upon other more favorable testimony not at war with plaintiff’s theory of the case.” Vaeth v. Gegg, 486 S.W.2d 625, 628 (Mo.1972). We also note the exception in Hill for contradictions which are explained.

Photographs that were admitted into evidence show the close proximity of the parking lot to the sidewalk. Plaintiffs pre-trial statements that she fell on the sidewalk or in the street are her estimates of the location of the mishap. She is not bound by these earlier estimates. Hill, 579 S.W.2d at 128. Further, the contradiction between those earlier statements and her testimony at trial that the hazard was on the parking lot is explainable by the photographs. Plaintiff could easily have tripped on the hazard on the parking lot and fallen onto the sidewalk. She in fact testified she was thrown forward toward the sidewalk. We cannot charge plaintiff with knowing the precise term to use when describing where the mishap occurred. Her testimony at trial was clear the hazard was on the parking lot and the photographs confirmed this.

We also note in Hill and the cases cited by defendant on this proposition there were inconsistencies in the witness’ testimony at trial. In the present case, plaintiff did not waiver at trial from her story that the hazard was on the defendant’s parking lot. The contradiction here was between plaintiff’s testimony at trial and her pre-trial statements. Defendant’s first point is denied.

Defendant next contends that plaintiff failed to show defendant knew or could have known of the existence of the dangerous condition. Plaintiff does not argue actual knowledge but tries to show defendant had constructive knowledge. To constitute constructive knowledge, evidence must be presented “that the defect has existed for a sufficient length of time to constitute constructive notice, or, in other words, to show that defendant should reasonably have known of it.” Ward v. Temple Stephens Co., 418 S.W.2d 935, 938 (Mo.1967). See also Vinson v. National Super Markets, Inc., 621 S.W.2d 373, 375 (Mo.App.1981).

In Word v. City of St. Louis, 617 S.W.2d 479, 482 (Mo.App.1981), the court held the jury could find constructive notice by inferring the hazardous condition had existed for a sufficient time. There, a metal object was rusty, indicating the defect had been present for a period long enough for the rust to appear. Photographs were also used along with the plaintiff’s testimony. See also Cornette v. City of North Kansas City, 659 S.W.2d 245, 247 (Mo.App.1983), where “photographic and oral testimony showed physical deterioration that was gradual and the joint product of time and neglect.”

The same is true here. Plaintiff testified she had been shopping at the store for many years, usually once a week. She had seen the crumbled and deteriorated parking lot bumpers on previous occasions. Photographs show the deteriorating condition of the bumpers. It could reasonably be inferred that the deterioration was a long-term process from which a jury could impute constructive knowledge to the defendant. Defendant’s second point is denied.

We have reviewed the remaining four points raised by defendant on appeal. No error of law appears. An extended opinion on those points would have no precedential value. They are, therefore, denied pursuant to Rule 84.16(b).

The judgment of the trial court is affirmed.

DOWD, P.J., and CRIST, J., concur.


author: PUDLOWSKI, Presiding Judge.

text:
    Vernon KARY and Joyce Kary, Plaintiffs-Appellants, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Defendant-Respondent.
    No. 48733.
    Missouri Court of Appeals, Eastern District, Division One.
    March 12, 1985.
    James R. Keller, St. Louis, for plaintiffs-appellants.
    Alice Sterkel, St. Louis, for defendant-respondent.
   PUDLOWSKI, Presiding Judge.

This is an action for personal injury in which the trial court entered summary judgment in favor of defendant-respondent, Missouri Highway and Transportation Commission (hereinafter referred to as “Commission”) and against plaintiffs-appellants Vernon Kary and Joyce Kary. This appeal involves whether the plaintiffs have pled facts sufficient to constitute a cause of action for nuisance. We affirm.

FACTS

Prior to April 13, 1980, Commission erected metal reflector stakes along the outside shoulder of Interstate 270. One of these metal reflector stakes was struck or bent by a person or persons unknown, and the reflector button knocked off such that the metal reflector stake extended over the shoulder of Interstate 270 approximately 12 inches above the pavement.

On or about April 13, 1980, plaintiff Vernon Kary operated a motorcycle along the outside shoulder when he struck the bent metal reflector stake, causing him to be violently thrown from his motorcycle and sustain serious and permanent injuries.

Plaintiffs allege that the stakes created an inherently dangerous condition. They further allege that the reflector buttons on said stakes continually fall off and cannot be seen at night. The presence of the stakes along the shoulder of the highway caused the stakes to be struck and bent by vehicles using the shoulder in a manner that creates a dangerous obstruction. Although the stakes are struck and bent often, the Commission does not regularly inspect and repair these stakes and instead keeps a supply of replacement stakes in its highway trucks for its employees to replace reflector stakes at random when said employees are not engaged in other maintenance activities.

Plaintiffs further allege that the Commission intentionally permitted this dangerous condition to exist in that after the aforesaid stake was struck, employees of the defendant inspected the section of highway where the stake was located to detect any defective highway signs and markers and did observe the bent condition of and missing reflector button on said stake.

Commission moved the trial court for summary judgment on the basis of sovereign immunity, arguing that because plaintiffs did not allege a statutory exception, plaintiffs did not plead facts sufficient to waive sovereign immunity. The trial court entered summary judgment.

Plaintiffs do not dispute that the Commission enjoys sovereign immunity from negligence, absent express constitutional or statutory provisions to the contrary. Mo.Rev.Stat. § 537.600-610 (1978). Plaintiffs argue that the trial court erred in granting summary judgment because the complaint alleges nuisance which is a common law exception to the doctrine of sovereign immunity. We decline to determine whether sovereign immunity is waived in an action for personal injuries resulting from the creation of a nuisance because plaintiffs here have not pled a cause of action for nuisance.

NUISANCE DEFINED

What constitutes nuisance is a question of law for the court. Pearson v. Kansas City, 55 S.W.2d 485, 489 (Mo.1932); Rodgers v. Kansas City, 327 S.W.2d 478, 486 (Mo.App.1959) See Jones v. State Highway Comm’n, 593 S.W.2d 580, 538 (Mo.App.1979) (trial court correctly concluded as matter of law that evidence didn’t support nuisance charge to jury). The facts must be construed in the light most favorable to the party against whom summary judgment was filed. Brooks v. Cooksey, 427 S.W.2d 498, 500 (Mo.1968); Perkins v. Schicker, 641 S.W.2d 432, 434 (Mo.App.1982).

Negligence is the failure to exercise the degree of care required by the circumstances. Pearson, supra at 489. Nuisance rests not on the degree of care used, but on the degree of danger existing with the best of care. Id. Nuisance is the violation of the absolute duty to refrain from the acts, not merely the relative duty to exercise proper care in their performance. Id. at 490.

There must be
a degree of danger (likely to result in damage) inherent in the thing itself, beyond that arising from mere failure to exercise ordinary care in its use before the question of a nuisance can properly be submitted to a jury.

Id. at 489. (Emphasis added).

This distinction has been upheld on numerous occasions. See Hinds v. City of Hannibal, 212 S.W.2d 401, 403 (Mo.1948); Brown v. City of Craig, 168 S.W.2d 1080, 1082 (Mo.1943); Jones v. State Highway Comm’n, 593 S.W.2d 580, 583 (Mo.App.1979); Rodgers, 327 S.W.2d at 482 (Mo.App.1959).

An “inherently dangerous” condition, the hallmark of nuisance, is that danger which

inheres in the instrumentality or condition itself, at all times, so as to require special precautions to be taken with regard to it to prevent injury; instead of danger arising from mere causal or collateral negligence of others with respect to it under particular circumstances.

Brown, 168 S.W.2d at 1082, quoting, Hull v. Gillioz, 130 S.W.2d 623, 628 (Mo.1939). This condition may arise either from original improper construction or such deterioration as to warrant the conclusion that an inherently dangerous condition is intentionally permitted to exist. Pearson, 55 S.W.2d at 489.

Claims of nuisance have been held to be in fact a cause of action for negligence in several cases where the plaintiff desired to pierce the veil of sovereign immunity. See, e.g., Pearson, 55 S.W.2d 485 (elevator shaft fall in police station claimed to result from poor lighting, worn elevator main staff, or worn latch on elevator door); Brown, 168 S.W.2d 1080 (prisoner burned in city jail claimed to result from careless construction and condition of jail); Hinds, 212 S.W.2d 401 (assault in city jail by police officer claimed to result from selection and retention by city of incompetent and vicious officer); Jones, 593 S.W.2d 580 (highway auto accident claimed to result from contour and condition of highway). See also Metz v. Kansas City, 81 S.W.2d 462 (Mo.App.1935) (auto accident claimed to result from concrete island in middle of street intersection). No inherent danger existed in these cases. But see Rodgers, 327 S.W.2d 478 (several test fires set and combustibles stored by city in building contiguous to plaintiff’s store was held to be a nuisance).

PLAINTIFFS FAILED TO PLEAD FACTS SUPPORTING CAUSE OF ACTION FOR NUISANCE

Here, allegations of nuisance by plaintiff are mere conclusions of law not supported by the facts alleged. The real basis of plaintiffs’ claims is failure to exercise reasonable care, foresight and prudence.

An inherent danger in the erection or condition of the metal reflector stake itself is not shown. That the reflector buttons continually fall off, that the stakes are continually bent, that the Commission does not specifically inspect the stakes for repair and that the Commission specifically inspected the stake after it was struck, but did not make note of its condition, show at most that the accident was caused by the Commission’s failure to use the proper degree of care. These allegations do not show an inherently dangerous condition which would cause damage regardless of the exercise of a reasonable degree of care.

The proper remedy was to replace the bent stake with a new stake, rather than refrain from constructing and maintaining the stakes. The stake itself is not an inherent danger. If this court were to hold otherwise, our highways would be littered with hundreds of thousands of nuisances.

We therefore hold that the real basis of plaintiffs’ claims, as disclosed by the factual allegations of the complaint, is negligence, not nuisance. The doctrine of sovereign immunity bars all negligence against the Commission. Summary judgment in favor of the Commission is affirmed.

GAERTNER and KAROHL, JJ., concur.


author: SMITH, Presiding Judge.

text:
    NOOTER CORPORATION, Appellant, v. Stephen S. TODD, et al., Respondents.
    No. 48736.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 12, 1985.
    Robert S. Allen, St. Louis, for appellant.
    Barry J. Levine, St. Louis, for respondents.
   SMITH, Presiding Judge.

Plaintiff, Nooter Corporation appeals from the judgment of the trial court denying it a permanent injunction restraining defendant Todd from working for defendant Strange and Coleman in violation of a restrictive convenant of employment. We affirm.

Todd was employed for several years by Nooter as a boilermaker at an hourly wage. He worked at various sites throughout the country and had achieved a foreman status. In 1980 he advised Nooter that he was contemplating a change of employment to another company. His reason for this was so that he could locate in one place and raise his family. His employment was predominately in servicing and repairing large vessels utilized primarily by oil companies in their refining operations. Ron Zinzer, a management employee of Nooter, advised Todd that Nooter was planning to open a branch office in Penndel, Pennsylvania, to service companies in that area. Zinzer, who was to head the new office, offered Todd a position in the Penndel office as a supervisory employee paid on a salary basis. The offer was oral and was accepted by Todd who commenced work at the Penndel office on October 1, 1980.

The evidence would support a finding that no restrictive covenant was discussed with Todd prior to the commencement of his employment at Penndel. Several months after beginning his employment at Penndel, Todd was furnished with an employment agreement containing a restrictive covenant preventing his post-Nooter-employment for three years by competitors of Nooter anywhere in the United States except for states west of the Rocky Mountains. Competitor was defined to include customers of Nooter regardless of location. Zinzer testified this agreement was presented to Todd after his employment at Penndel commenced but was indefinite as to when. Todd testified he received the agreement at the beginning of February, 1981, and returned it signed about two weeks later. The agreement bore a date of October 1, 1980. The salary stated in the agreement was the same as that previously agreed to and which Todd was being paid after October 1. There were no other conditions of employment in the agreement except a confidentiality pledge and a shop-right provision for inventions.

In January 1984, Todd left the employment of Nooter and began working for Strange and Coleman. That company is a Missouri corporation with offices in Illinois. Most of its work is within a fifty mile radius of St.' Louis. Its business also involves servicing and repair of vessels utilized by oil companies in refining. Throughout his employment by Nooter after October 1, 1980, Todd was based in Penndel and his work was almost exclusively in that area.

We first deal with the choice of laws to be applied. Missouri has adopted the “most significant contacts test” enunciated in Restatement of Conflicts 2d Sec. 6. Kennedy v. Dixon, 439 S.W.2d 173 (Mo. banc 1969). We are dealing here only with the restrictive convenant, a contract. We therefore look to the contacts enunciated in Sec. 188 of the Restatement. The covenant was signed in Pennsylvania, was negotiated in Pennsylvania, and the employment was to be performed in Pennsylvania. Sec. 188 provides that “[i]f the place of negotiating the contract and the place of performance are in the same state, the local law of this state will usually be applied.” The important contacts set out in Sec. 188 all occurred in Pennsylvania. The law of that state is to be applied.

The rule for validity of restrictive covenants of employment in Pennsylvania is stated in George W. Kistler, Inc. v. O’Brien, 347 A.2d 311 (Pa.1975) [1] as follows:

“It is axiomatic in our law that in order for a covenant in restraint of trade to be enforceable the covenant must 1) relate to (be ancillary to) a contract for the sale of the good will of a business or to a contract of employment, 2) be supported by adequate consideration, and 3) be reasonably limited in both time and territory.” See also Sidco Paper Company v. Aaron, 351 A.2d 250 (Pa.1976) [1],

The Supreme Court of Pennsylvania has held on several occasions that a restrictive covenant is enforceable if supported by new consideration, either in the form of an initial employment contract or a change in the conditions of employment. Maintenance Specialities, Inc. v. Gottus, 455 Pa. 327, 314 A.2d 279 (1974) [1]; Kistler v. O’Brien, supra, [6-9]. Continuation of the employment, even if at will, is not sufficient to make the covenant enforceable. Kistler v. O’Brien, supra, [6-9]; Maintenance Specialities, Inc. v. Gottus, supra, (Ftnt. 1 and Jones concurring). The restrictive covenant must be ancillary to the “taking of employment.” Capital Bakers, Inc. v. Townsend, 426 Pa. 188, 231 A.2d 292 (1967) [1-4]; Maintenance Specialities, Inc. v. Gottus, supra, (Jones, concurring).

Here the evidence supported a finding that Todd was employed under an oral contract of employment on October 1,1980. That contract did not include a restrictive covenant and Todd was not advised that his employment was conditioned on such a covenant. The employment was “taken” on the basis of the oral contract. The subsequent written document introduced into the employment contract a new term — the restrictive covenant. That term was not based upon the original employment contract under which Todd “took” the employment nor was there additional consideration for that term. The back dating of the restrictive covenant does not change the fact established by the evidence that the restrictive covenant was not “ancillary” to the employment contract as defined under Pennsylvania law. Kistler v. O’Brien, supra, [2-5]. Under that law the key question is whether at the time the employment was agreed to a condition of that employment was the restrictive covenant. Here it was not a condition upon the “taking of employment” and was unenforceable. Maintenance Specialities, Inc. v. Gottus, supra; Kistler v. O’Brien, supra, Jacobson & Company, Inc. v. International Environment Corp., 427 Pa. 439, 235 A.2d 612 (1967); Capital Bakers, Inc. v. Townsend, supra; Barb-Lee Mobile Frame Co., Inc. v. Hoot, 416 Pa. 222, 206 A.2d 59 (1965).

In this court tried case we are bound in our review by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We must accept the evidence supportive of the trial court’s decision. Utilizing that scope of review we find no error in the judgment of the trial court. It is unnecessary for us to address plaintiff’s additional points.

Judgment affirmed.

SNYDER and SATZ, JJ., concur.

      . Nooter adduced evidence of a custom to require salaried personnel to sign a restrictive covenant. There was evidence that Todd was aware that some salaried personnel were employed under restrictive covenants. There was also evidence that not all employees in capacities similar to Todd’s were under such covenants.

      . Whether this is a matter of "consideration” or necessary to establish the covenant as “ancillary to employment” is subject to some dispute. See Roberts, concurring in Kistler v. O’Brien, supra.


author: KELLY, Judge.

text:
    Donald John FEMMER, Petitioner-Appellant, v. Lora M. FEMMER, Respondent-Respondent.
    No. 48762.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 12, 1985.

      See also, Mo.App., 669 S.W.2d 63.
    Herbert A. Hasten, Jr., St. Louis, for petitioner-appellant.
    Richard A. Gartner, St. Ann, for respondent-respondent.
   KELLY, Judge.

Donald John Femmer appeals from an order of the Circuit Court of St. Louis County finding him in contempt of court and directing him to execute a quitclaim deed to respondent, Lora M. Femmer, for one-half interest in the former marital residence at 11039 Galaxy in Maryland Heights, Missouri.

On March 20, 1980, the marriage of the parties was dissolved by a Decree of Dissolution of Marriage by the Circuit Court of St. Louis County. Incorporated into the decree were the terms of a Separation Agreement of the parties, among which, was an agreement that appellant — the petitioner in the dissolution proceeding — would quitclaim his interest in the family residence at “11039 Galaxy, Maryland Heights, Missouri,” to respondent, who was to assume all indebtedness thereon. Both parties were to promptly and reasonably perform their provisions of the agreement.

There was no evidence that a certified copy of the Court’s decree was filed for record in the office of the recorder of deeds as required by § 452.330.5, RSMo 1978, and it was admitted that appellant never executed a quitclaim deed for the property to respondent as required by the decree.

On December 9, 1982, respondent filed a Motion to Cite Petitioner for Contempt of Court and to Modify Divorce Decree, alleging, among other things, that appellant had ignored the provision of the Separation Agreement which provided that he quitclaim his interest in the family residence to her. An evidentiary hearing was held on these motions on February 15 and 16,1983, after which the trial court found that respondent was a tenant-in-common with a one-half interest in the real estate at 11039 Galaxy, Maryland Heights, St. Louis County, Missouri, and directed appellant to execute and deliver to respondent a quick-claim [sic] deed for a half-interest in said residence. The trial court also found appellant in contempt of court for failure to comply with the Separation Agreement and decree requiring that he execute a quitclaim deed to respondent.

Appellant contends the trial court erred: (1) in awarding respondent a one-half interest in certain real estate for the reason that her quitclaim deed transferred all interest she had in the real estate to appellant, including the equitable interest she acquired from the dissolution decree, and both the language of the deed and state law preclude and estop her from now claiming any interest therein; (2) in awarding respondent one-half interest in the real estate for the reason that the terms of the dissolution decree and Separation Agreement concerning said real estate merged into the deed, thereby transferring all of respondent’s interest in said real estate to appellant; and (3) the trial court was without jurisdiction to enter any order concerning the real estate of the parties for the reason that once respondent withdrew her allegation of coercion with respect to her deed of March, 1981, there remained no pleadings, proof of prayer for the relief granted by the Court.

The parties do not raise the question of the finality of the trial court’s order. We have the duty to examine the question sua sponte, however, since we only have jurisdiction to hear appeals from a final judgment, Smith v. Smith, 676 S.W.2d 65, 66[1] (Mo.App.1984); Hamilton v. Hamilton, 661 S.W.2d 82 (Mo.App.1983).

A civil contempt order is not a final judgment for purposes of appeal. Smith, id., at p. 66[2]; Hamilton, id., at p. 83. A contemnor may purge himself of the contempt by compliance with the court’s order making the case moot and unappealable, or he must wait to appeal until the court’s order is enforced by actual incarceration of the contemnor. The contemnor who chooses the second option would be entitled to release upon the posting of reasonable bail pending his appeal.

The record before us does not show that the contemnor purged his contempt nor does it indicate his arrest, confinement and posting of bond. As such, the order is interlocutory and not appealable. Therefore, we dismiss the appeal as premature.

DOWD, P.J., and CRANDALL, J., concur.

      . The motion to modify sought an order modifying the Decree of Dissolution to change the care, custody and control of the minor children of the marriage from respondent to petitioner; the trial court retained jurisdiction over the question of child support, temporary custody and visitation pending completion of the child custody study in the proceeding and further and final proceedings on the question of permanent custody.


author: REINHARD, Chief Judge.

text:
    John Thomas DAVIS, Respondent, v. Ruby Virginia DAVIS, Appellant.
    No. 49061.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 12, 1985.

      Prudence L. Fink, Union, for appellant.
    Daryl K. Hartley, Union, for respondent.
   REINHARD, Chief Judge.

The marriage of the parties was dissolved in 1975. Wife filed a motion to modify the decree seeking an increase in maintenance, plus attorney’s fees for prosecuting the motion. Husband moved to dismiss, claiming the maintenance provisions are contractual and not modifiable by the court. The trial court sustained the motion, and wife appeals.

After a twenty-year marriage, the parties entered into a separation agreement on November 24, 1975. In Paragraph I of the agreement, husband agreed to pay “as maintenance, support and alimony the amount of $435.00 per month.” Paragraph IV provided: “The parties hereto agree that all of the terms herein recited shall be included in the Decree of Dissolution....” Paragraph V provided that “Wife ... agrees that husband is fully and finally released and discharged from any and all claims, demands, and marital and statutory rights on the part of the wife against him and his property, save and except those herein set forth to be performed by the husband.”

In Paragraph VII, entitled Contract, the parties agreed to the following:

A. The provisions of this agreement shall be construed under the laws of the State of Missouri. Each party acknowledges that he and she has had the advice of an attorney at law in connection with this agreement and fully understands same.
B. The consideration herein is contractual and not a mere recital of the entire understanding of the parties. Each party has read and fully understands this agreement and that there are no representations, warranties, covenants or undertakings other than those expressly set forth herein.
C. In the event no dissolution of marriage is obtained, this agreement is to be inoperative and void.
D. A modification or waiver of any of the provisions of this agreement shall be effective only if made in writing and executed with the same formalities as this agreement.... (emphasis added)
E. All warranties, covenants, and provisions of this agreement shall survive the granting of a Decree of Dissolution if one is granted, and remain enforceable under general contract law.

On the same date, the trial court entered a decree of dissolution which incorporated the agreement. The decree specifically provided that “the terms of the Separation Agreement settling the property rights herein are not unconscionable and is [sic] ordered to be made a part of this Decree.” After setting out the entire agreement in the decree, the trial court concluded with the following:

WHEREFORE, it is ordered, adjudged and decreed by the Court that the marriage ... is hereby dissolved; that the parties perform the terms of their written Separation Agreement above.... It is further ordered that petitioner [husband] ... shall pay to respondent [wife] ... the sum of $435.00 per month as maintenance until further order of this Court.

On May 2, 1984, wife filed a motion to modify the decree by increasing maintenance. In sustaining the husband’s motion to dismiss, the trial court found that the award of maintenance was contractual and not decretal, and thus not modifiable by the court. The court stated: “The intent of the parties is clear from the agreement and the usage of the words ‘until further order of this court’ in the decree is not sufficient to overcome this clear expression of the agreement of the parties.”

Wife appeals this order, claiming the trial court erred in holding the maintenance award to be contractual and nonmodifiable. She contends that because the agreement was incorporated into the decree and because the trial court did not limit or preclude modification, the maintenance award is decretal and modifiable as a matter of law.

Wife relies on Craver v. Craver, 649 S.W.2d 440 (Mo. banc 1983), for the proposition that when an agreement is incorporated into a decree, it becomes decre-tal and not contractual. In Craver, our Supreme Court stated in dictum, “The Dissolution of Marriage Act has not eliminated contractual arrangements, but absent an expressed intent to the contrary any such agreement, as long as it is not unconscionable, is incorporated into the judgment and becomes decretal.” 649 S.W.2d at 444 (Citing Haggard, 585 S.W.2d 480 (Mo. banc 1979)). Wife is correct in her assertion that the maintenance award here is not contractual, as the trial court stated in its ruling. However, even though the court may have mischaracterized the award, we will not reverse if the correct result was reached. Lalumondier v. County Court of St. Francois County, 588 S.W.2d 197 (Mo.App.1979).

Prior to 1974, an award of maintenance (then called alimony) was either contractual or decretal. Decretal alimony was always modifiable, while the modifiability of contractual alimony was determined by the contract itself. In re Marriage of Haggard, 585 S.W.2d 480, 481 (Mo. banc 1979). Craver dealt with a pre-1974 dissolution.

Dissolution decrees granted after January 1, 1974, are governed by the Dissolution of Marriage Act, §§ 452.300-452.-415 RSMo. 1978. Under the act, there are three types of maintenance awards: (1) a private contractual maintenance provision in a separation agreement approved by the court but not set out in the dissolution decree at the express request of the parties (similar to the former contractual alimony); (2) a maintenance provision of a separation agreement which is set out in the dissolution decree (a new hybrid of the former contractual and decretal types); and (3) a maintenance award granted by the court in the absence of a separation agreement (similar to the former decretal alimony). Section 452.325; In re Marriage of Haggard, 585 S.W.2d 480, 482 (Mo. banc 1979). The first type has been termed “contractual maintenance”; the second “separation agreement decretal maintenance”; and the third “decretal maintenance.” Bryson v. Bryson, 624 S.W.2d 92 (Mo.App.1981). The maintenance provision here is of the second type, separation agreement decretal maintenance, since the parties did not expressly exclude their agreement from the decree. Id; see also Brucker v. Brucker, 611 S.W.2d 293 (Mo.App.1980). In discussing this type of maintenance award, our Supreme Court stated: “This would seem to correspond, at least in part, to the former decretal alimony. The correspondence would not be complete because court modification of the maintenance agreement is a matter to be separately determined by the parties, § 452.325.6_” Haggard, 585 S.W.2d 480, 482 (Mo. banc 1979). Section 452.325.6 specifically authorized the trial court to incorporate a separation agreement into the decree but also to expressly preclude modification of maintenance if the agreement so provides.

This court addressed the issue in Bryson v. Bryson, 624 S.W.2d 92, 95 (Mo.App.1981). There we held that separation agreement decretal maintenance is modifiable unless the parties specifically agree to preclude or limit modification.

In Brucker v. Brucker, 611 S.W.2d 293 (Mo.App.1980), we faced a situation in which the separation agreement had been incorporated into the decree, but the agreement did not preclude modification of maintenance. In holding that maintenance was modifiable in that case, we stated:

If the parties had wanted to prevent modification of the decree they should have incorporated an express statement to that effect in their separation agreement which in turn would have been incorporated into the decree. The parties’ failure to express a statement preventing modification gave the court jurisdiction to proceed on the motion to modify.

611 S.W.2d at 296.

Here, the parties did exactly what was prescribed in Brucker. The trial court incorporated into the decree a separation agreement which clearly precluded modification of maintenance. The court expressly found that the agreement was “not unconscionable” and ordered the parties to perform the terms of the agreement. As such, the nonmodifiability clause became part of the decree under § 452.325.6. Wife contends the trial court’s words “until further order of this Court” in the closing paragraph of the decree indicate the trial court maintained jurisdiction to modify maintenance. However, from the decree as a whole, including the court’s introductory paragraphs and the agreement itself, there is no doubt that the court and attorneys were aware of the contents of the agreement. Cf. Medlicott v. Medlicott, 617 S.W.2d 576, 580 (Mo.App.1981). Under Brucker & Bryson, supra, we find that when the parties expressly agree to preclude modification of maintenance and the court incorporates that agreement into the decree, the agreement is binding on the court. The case was properly dismissed. Affirmed.

DOWD and CRANDALL, JJ., concur.

      . All statutory references are to RSMo. 1978.


author: CLEMENS, Senior Judge.

text:
    Ruth WRIGLEY, Appellant, v. MISSOURI STATE DIVISION OF FAMILY SERVICES, Respondent.
    No. 49127.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 12, 1985.
    Ann B. Lever, St. Louis, for appellant.
    Paul Keller, Mo. Dept, of Social Services, Jefferson City, for respondent.
   CLEMENS, Senior Judge.

Eighty-year-old Ruth Wrigley has appealed the Division of Family Services’ order ending her $225 monthly “Intermediate Care Facility” payments. The order followed a report by the Division investigator’s unchallenged findings on January 12, 1983, that Mrs. Wrigley’s disability did not measure up to its requirement for intermediate care.

On April 21, 1983 Mrs. Wrigley sought review before the Division’s director. On May 11, 1983 his deputy held a hearing and on May 24, 1983 the director issued his findings, conclusions and decision declaring: Two inspections showed claimant needed only minimal care; at the director’s hearing claimant showed only nine points against the required 18 points for intermediate care; the evidence did not show claimant needed nursing care and her claim therefor was denied.

Mrs. Wrigley has appealed challenging the circuit court’s affirmance of the director’s denial of benefits. She contends the judgment is void because the rule on which her claim was denied had been legislatively suspended effective December 4, 1982. This was true as of the date of the investigator’s report, January 12, 1983. However, the director’s terminating order was made on May 24,1983, and by then the suspension had expired, effective March 11, 1983.

That process raises the essential issue here: Which controls, the Division’s investigator’s report, or the denial order of the Division’s director? To that we look to § 208.080.7. Summarized to delete extraneous parts the statute declares:

“The director of the division of family services shall give the applicant ... a fair hearing.... The hearing shall be conducted by the director of the division of family services or his designee. Every applicant or recipient, on appeal to the director of the division of family services, shall be entitled to be present at the hearing, in person and by attorney or representative and shall be entitled to introduce into the record of such hearing any and all evidence, by witnesses or otherwise, pertinent to such applicant’s or recipient’s eligibility between the time he applied for benefits or services and the time the application was denied or the benefits or services were terminated or modified, and all such evidence shall ... become a part of the applicant’s or recipient’s appeal record. Upon the record so made, the director of the division of family services shall determine all questions presented by the appeal, and shall make such decision as to the granting of benefits or services as in his opinion is justified and is in conformity with the provisions of the law. The director shall clearly state the reasons for his decision and shall include a statement of findings of fact and conclusions of law pertinent to the questions in issue.”

We read that statute as giving the Director, not its investigator, power to make the order from which Mrs. Wrigley has appealed. As said above, the order was made after, not during, the suspension of the challenged order.

We affirm.

DOWD, P.J., and CRANDALL, J., concur.

      . Not at issue here is plaintiffs other $492 monthly income from Social Security and a railroad pension.