author: CRANDALL, Judge.

text:
    STATE of Missouri, Respondent, v. Robert LAKEBRINK, Appellant.
    No. 48225.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 23, 1985.

      Daniel B. Hayes, Clayton, for appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CRANDALL, Judge.

Defendant, Robert Lakebrink, appeals from his conviction after a jury trial of assault in the first degree. He was sentenced to ten years’ imprisonment.

Defendant alleges on appeal that (1) the State failed to make a submissible case, and (2) the court erred in failing to give MAI-CR 2.28, an instruction on excusable homicide or assault. We affirm.

The State clearly made a submissi-ble case on the charge of first degree assault. The State was required to prove that the defendant attempted to kill or knowingly caused or attempted to cause serious physical injury to another person. § 565.050, RSMo (Supp.1984). In the present case the evidence, viewed in the light most favorable to the verdict, State v. Jones, 672 S.W.2d 707, 708 (Mo.App.1984), showed the defendant threatened to shoot the victim and then shot him in the head. Defendant’s first point is denied.

Defendant’s other point on appeal claims error in the failure of the court to give MAI-CR 2.28. This instruction is applicable to assault cases and is required whether requested or not, when there is evidence to support it. MAI-CR 2d, at XVII; MAI-CR 2d 2.28, Notes on Use.

Defendant took the stand in his own defense and testified that the shooting was an accident. He stated that as he reached to turn off a light, he tripped over something, slipped, and the rifle he was holding discharged. Despite this testimony, MAI-CR 2.28 was not requested by the parties nor given by the trial court.

Because the instruction is one which has to be given, if supported by the evidence, whether requested or not, the failure of the court to give the instruction constitutes error.

The State claims this error was not preserved in defendant’s motion for new trial, because the facts which would support the giving of the instruction are not set out in the motion. We have reviewed defendant’s motion and find it sufficient to preserve this issue. In addition, it is clear from the transcript the motion was sufficient to raise the issue in the mind of the trial judge.

The State also argues defense counsel waived the giving of the instruction or invited the court not to submit it. This waiver allegedly came during an off the record discussion involving the court and the attorneys. But “[t]his court has neither the power nor the inclination to permit the disposition of this appeal to be governed by alleged happenings ‘off the record.’ ” Cobb v. R.W. Beasley Construction Co., 536 S.W.2d 535, 537 (Mo.App.1976); State v. Shives, 601 S.W.2d 22, 30 (Mo.App.1980). Also, any such waiver must appear clearly from the record. Edwards v. State, 569 S.W.2d 779, 780 (Mo.App.1978); State v. Harmon, 243 S.W.2d 326 (Mo.1951). Consequently, we do not accept the State’s argument that defendant waived the giving of this instruction.

In addition, the State argues that the only evidence suggesting defendant accidentally shot the victim was defendant’s testimony. If a defendant’s testimony presents such a defense, he is entitled to an instruction on the subject, even though his testimony may be contradicted by all the other evidence in the case. State v. Nevels, 609 S.W.2d 725, 727 (Mo.App.1980).

Having determined that the trial court erred, we now consider its prejudicial effect. Rule 28.02(e). The defense of accident was fully presented in the evidence. Although the closing arguments of counsel are not included in the record on appeal, we presume that defense counsel was not prevented from arguing accident by the trial court. The verdict-directing instruction premises defendant’s culpability on an intentional act. Thus the issue of “accident” versus “intentional act” was properly framed by the instructions and was fully developed by the evidence for the jury. MAI-CR 2.28, although a correct statement of the common law, was surplusage and unnecessary to a proper adjudication of the case.

Even if we were prone to reverse and remand as a matter of policy, State v. Sanders, 541 S.W.2d 530 (Mo. banc 1976), we note that MAI-CR 2.28 has been withdrawn. The withdrawal of MAI-CR 2.28 was approved August 13, 1984; effective October 1, 1984. MAI-CR 2d 2.28. There was no new instruction approved to replace it. Thus if we were to reverse and remand based upon instructional error, we would be faced with the incongruous situation of directing the trial court to instruct the jury in the same manner as it did in the first trial. Instructions do not create the law; they simply state the law. They are procedural in nature. Meredith v. Missouri Pacific Railroad Co., 467 S.W.2d 79, 82 (Mo.1971). The law of the case was properly stated in the instructions as given. We find no prejudice in failing to give an instruction which was not requested and which has been withdrawn as an approved instruction.

The judgment of the trial court is affirmed.

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

      . MAI-CR 2.28, when modified as the defendant has done in his brief, provides:
      One of the issues in this case is whether the injury of [name of victim ] was an excusable assault. By "excusable assault” is meant the injury of another by accident or misfortune under the circumstances submitted in this instruction. On that issue you are instructed as follows:
      1. The state has the burden of proving beyond a reasonable doubt that the injury of [name of victim ] was not an excusable assault. The defendant is not required to prove that the injury was excusable. If the injury was an excusable assault, or if the evidence in this case leaves in your mind a reasonable doubt as to whether the injury was an excusable assault, then you must find the defendant not guilty.
      2. You will acquit the defendant on the ground of excusable assault and return a verdict of not guilty if the injury of [name of victim ] was the result of accident or misfortune in [describe lawful act by lawful means that caused the injury] without unlawful intent and without reckless disregard for human life and safety.


source: Caselaw Access Project

author: CLEMENS, Senior Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Mary THOMPSON, Appellant.
    No. 48291.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 23, 1985.

      William J. Shaw, Clayton, for appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Senior Judge.

The essence of this stealing case is that after defendant had ordered a dealer to repair her car it disappeared, that she delivered it to a cohort and then collected on her theft insurance.

The state charged and a jury found defendant guilty of stealing. § 570.030 RSMo. The trial court sentenced defendant as a persistent offender to five years in prison.

Here defendant first contends the court erred in permitting the state to examine its own witness about a false statement he had originally made to police. Second, defendant claims the court erred in allowing the state without timely notice to introduce a mechanic’s work order allegedly made at defendant’s request.

State’s witness Riggins testified defendant brought the car to his residence in Illinois. When first questioned by police he falsely told them he knew nothing about the car. Then he “told them the truth”: that defendant told him she wanted him to get rid of the car and gave it to him; then she told him it had been insured.

Here defendant contends the court erred in allowing the state to question its own witness Riggins on his two conflicting statements about whether he knew defendant was trying to conceal the fact she knew the car had not been stolen. Here defendant contends this deprived her counsel of the opportunity to show the inconsistenty of Riggins’ first and second statements to police.

On this point defendant first cites State v. Cox, 542 S.W.2d 40[5, 6] (Mo.App.1976). That case concerned a witness who on cross-examination raised doubts about her direct testimony. The trial court then properly allowed the state to rehabilitate the witness. The case is clearly not in point here. Neither is defendant’s other citation, State v. Williams, 602 S.W.2d 209[5, 6] (Mo.App.1980).

On this point defendant frankly cites State v. Reilly, 674 S.W.2d 530[6, 7] (Mo. banc 1984) tersely holding: “The prosecution may anticipate possible bases for impeachment and expose inconsistencies on direct examination.” To the same effect see State v. Spinks, 629 S.W.2d 499[3-7] (Mo.App.1981).

We deny defendant’s first challenge and consider his further point the trial court erred in admitting documentary evidence of repairs ordered for defendant’s car. This on the ground of inadequate notice to defendant. The prosecutor told the trial court this document first came to his attention on Friday before the Monday trial and he had notified defense counsel before the jury was sworn. The factual content of the now challenged repair order was testified to directly by personnel of the repair company and was part of the police report previously given defense counsel.

As ruled in State v. Sykes, 628 S.W.2d 653[8, 9] (Mo.Sup.1982), remedies for alleged discovery rule violations lie within the trial court’s sound discretion. We find here no abuse of that discretion.

Affirmed.

CRIST, P.J., and CRANDALL, J., concur.


author: SIMON, Presiding Judge.

text:
    Shirley ARNETT and Bobby Arnett, Plaintiffs, v. Mitchell JOHNSON, M.D., et al., Defendants. Samuel A. GOLDBLATT and Fox, Goldblatt & Singer, Inc., Movants-Cross-Appellants, v. BROWN, CROUPPEN, WALTHER AND ZWIBELMAN, P.C., Respondent-Appellant.
    Nos. 48495, 48522.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 23, 1985.

      Aubuchon, Aubuchon & Raniere, Michael J. Aubuchon, Daniel C. Aubuchon, Gary W. Kullmann, St. Louis, for movants-cross-ap-pellants.
    Husch, Eppenberger, Donohue, Elson & Cornfeld, Mark G. Arnold, St. Louis, for respondent-appellant.
   SIMON, Presiding Judge.

Samuel A. Goldblatt and Fox, Goldblatt & Singer, Inc., attorneys, and Brown, Crouppen, Walther and Zwibelman, P.C., attorneys, appeal from an order of the Circuit Court of the County of St. Louis distributing attorneys’ fees pursuant to a structured settlement in a medical malpractice action. The plaintiffs in the underlying malpractice action entered into a contingent fee contract with Samuel A. Goldblatt and the firm of Fox, Goldblatt & Singer, Inc. (hereinafter Mr. Goldblatt) to prosecute their claim. The contract was originally for one-half of all amounts received from defendants; later amended to one-third. Mr. Goldblatt proceeded with the case, interviewing the clients, securing and receiving medical records and other materials, discussing the case with four doctors, and preparing and filing the petition. Later, Mr. Goldblatt was discharged without cause by the plaintiffs. Plaintiffs then retained the firm of Brown, Crouppen, Walther and Zwibelman, P.C. (hereinafter Mr. Zwibelman) under a one-third contingency agreement to represent them in the malpractice action. The agreement also obligated Mr. Zwibelman to pay any amount due to Mr. Goldblatt out of Mr. Zwibel-man’s fees. Subsequently, the plaintiffs and defendants in the malpractice action entered into a structured settlement having a present value of $2,250,000.00. Mr. Gold-blatt' and Mr. Zwibelman filed motions to distribute the attorneys’ fees. Attorneys’ fees were one-third of the settlement, $750,000.00. The trial court awarded $125,000.00, plus $1,015.71 out-of-pocket expenses to Mr. Goldblatt and the balance to Mr. Zwibelman.

Mr. Zwibelman appeals contending the trial court erred in: (1) misapplying the law, and (2) awarding excessive attorneys’ fees to Mr. Goldblatt because there was insufficient evidence to support the award. Mr. Goldblatt cross-appeals claiming the trial court erred in: (1) relying on a misinterpretation of the evidence to assess the value of Mr. Goldblatt’s services, and (2) granting an insufficient award because the weight of the evidence supports a higher award. We affirm.

Pursuant to the appropriate standard of review in a judge tried case, we will affirm the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976). Our authority to set aside a judgment as being against the weight of the evidence must be exercised with caution and based upon a firm belief that it is erroneous. We must give due regard to the opportunity of the trial court to have judged the credibility of the witnesses. Trenton Trust Co. v. Western Sur. Co., 599 S.W.2d 481, 483[1-4] (Mo. banc 1980). The trial judge can believe none, all, or part of a witness’ testimony and reject the rest, even if uncontradicted. Scott v. Dowling, 636 S.W.2d 176, 180[8] (Mo.App.1982). Conflicts in the evidence are for the trial court to resolve and the facts and all reasonable inferences must be taken accordance with the result reached by the trial court. Id. at 483[3].

Our Supreme Court’s holding in Plaza Shoe Store, Inc. v. Hermel, Inc., 636 S.W.2d 53 (Mo. banc 1982) controls in this factual situation. Attorneys employed under a contingent fee contract who are discharged without cause before settlement or judgment, but after rendering valuable legal services, are limited to the recovery of the reasonable value of the services rendered. The amount may not exceed the contracted fee, and is payable only upon occurrence of the contingency. Id. at 57-60[2].

Further, the court is not bound by expert testimony on legal fees. Testimony as to legal services is advisory and helpful, Sluggett v. Phillips, 178 S.W.2d 458, 462[2] (Mo.App.1944), but the judge is an expert on the question of attorney’s fees. Sebree v. Rosen, 393 S.W.2d 590, 599[9] (Mo.1965). The judge, acquainted with all the issues involved, may award attorney’s fees without the aid of evidence. Id. Awards should not be disturbed unless there is a manifest abuse of discretion. Mills v. Mills, 663 S.W.2d 369, 374[12] (Mo.App.1983).

Applying these principles of law, the record indicates that the award has substantial evidentiary support, is not against the weight of the evidence and the law was correctly applied. An extended discussion would not lend any precedential value.

Judgment affirmed.

STEPHAN, J., and HAROLD L. LOW-ENSTEIN, Special Judge, concur.


text:
    Ples BIBBS, Appellant, v. The CIVIL SERVICE COMMISSION OF the METROPOLITAN SEWER DISTRICT, and St. Louis Metropolitan Sewer District, Respondents.
    No. 48578.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 23, 1985.
    Frank Joseph Niesen, St. Louis, for appellant.
    Anthony E. Cassimatis, St. Louis, for respondents.
   CLEMENS, Senior Judge.

Plaintiff employee Pies Bibbs appeals the defendants’ decision discharging him. This on the ground Bibbs had refused to work and threatened to shoot his supervisor John McDowell.

On the day in question at the job site Bibbs admittedly refused to go to work, contending he had not been given the type of shovel best suited for the work.

Bibbs was promptly called before a board of supervisors to explain his refusal. Bibbs became angry and threatened to “get a 30/30 and blow McDowell away.” This was confirmed by two other supervisors, and admitted by Bibbs. The supervisors ordered Bibbs suspended for five days.

Later that day Bibbs parked his van at the job site, showed another employee a .22 rifle and said he “was going to get John McDowell” and “I’m here to get him.” Bibbs was urged to put the gun away. Minutes later Mr. McDowell was told about Bibbs’ threat. Bibbs continued to mutter his threats. Meanwhile another supervisor had learned of the situation, alerted police and they went to the scene. The police soon found Bibbs’ loaded rifle in his car and arrested him.

The Commission then converted the 5-day suspension into a dismissal, charging Bibbs’ “refusal to carry out a direct order and threats of bodily harm to supervisor.”

On Bibbs’ application for review the dismissal was brought before the Civil Service Commission. There the district’s supervisor, and Bibbs himself, testified under oath to the facts recited above. On Bibbs’ motion the case was reviewed, and was affirmed by the circuit court.

Our review is limited to “a determination of whether a reasonable mind could have conscientiously reached the same result based on our review of the entire record.” Phelps v. Metropolitan St. Louis Sewer District, 598 S.W.2d 163[5] (Mo.App.1980).

We note Bibbs was not discharged for assaulting McDowell but for threatening him and taking action to carry out that threat.

From the quoted testimony the Commission could find Bibbs had returned to the job site with a loaded rifle to “get” McDowell, that until arrested he continued to make threats to shoot McDowell.

We deny appellant’s challenge to the Commission’s ruling that upheld his dismissal.

Affirmed.

CRIST, P.J., and CRANDALL, J., concur.


author: PUDLOWSKI, Presiding Judge.

text:
    Charlene CREMEENS and David E. Cremeens, Plaintiffs-Respondents, v. KREE INSTITUTE OF ELECTROLYSIS, INC., Defendant-Appellant.
    No. 48720.
    Missouri Court of Appeals, Eastern District, Division One.
    April 23, 1985.

      Eugene K. Buckley, St. Louis, for defendant-appellant.
    Charlene A. Cremeens, Belleville, Ill., for plaintiffs-respondents.
   PUDLOWSKI, Presiding Judge.

Respondent, Charlene Cremeens, and her husband, David Cremeens, instituted a civil action for money damages alleging that Mrs. Cremeens sustained facial injuries as a result of an electrolysis treatment that she had received on December 27, 1980, at a Famous-Barr beauty salon. Respondent alleged that Glemby International Missouri, Inc. (hereinafter referred to as “Glem-by”) operated the beauty salon and that appellant, Kree Institute of Electrolysis (hereinafter referred to as “Kree”), manufactured the electrolysis machine in question and trained and employed the operator, Ernestine Shivers who performed the treatment. A motion for a directed verdict was sustained as to Glemby. Kree’s motion for a directed verdict at the close of respondent’s evidence was denied. Kree stood on that motion and did not present any evidence. The case was then submitted to the jury under the res ipsa loquitur doctrine. The jury returned a verdict in favor of Mrs. Cremeens and assessed her damages at $1,000.00, and denied David Cremeens’ consortium claim. Judgment was then entered in accordance with the jury verdicts. Kree’s motion for judgment notwithstanding the verdict was overruled, and thereafter Kree filed a timely notice of appeal.

Appellant contends that the trial court erred in denying its motion for a directed verdict. Appellant contends that respondent’s evidence merely established that respondent experienced a post-inflammatory reaction following an electrolysis treatment. Appellant claims that this is not sufficient to indicate an occurrence which does not ordinarily happen if those in charge use due care, and that respondent therefore failed to make a submissible res ipsa loquitur case. We disagree.

The evidence revealed that on December 27,1980, respondent went to the downtown Famous-Barr Department store beauty salon for an electrolysis treatment. She began electrolysis treatments in 1972 at another salon, and since 1974 received from fifteen to twenty treatments at Famous-Barr. She never had any prior complaints. However, each time respondent received an electrolysis treatment, her face would become red immediately following the treatment. The redness would become worse later in the day and, although the redness usually disappeared by the next day, it would sometimes continue for three or four days before it would begin to dissipate.

Most of the electrolysis treatments that respondent received over the years at Famous-Barr were for a duration of fifteen minutes and were administered by a woman who was referred to at trial as “the German lady.” The December 27, 1980 treatment, however, was administered by a Kree employee named Ernestine Shivers, and was scheduled for forty-five minutes in order to allow respondent to have more areas of her face treated. Although she was uncertain, respondent did not believe that she had ever had Ms. Shivers as an operator before.

About five minutes after Ms. Shivers began the treatment, respondent complained that the treatment was more painful than before. Ms. Shivers then made several adjustments to the machine, after which the treatment continued. Respondent testified that the needle appeared to be much hotter than before. She testified that in the past operators would press on the machine’s pedal one or two times sending an electrical surge into her skin which she was able to feel. Even though the duration of the charges this time were about the same as on previous occasions, respondent testified that a greater number of surges were applied. She also testified that, if the hair would not come out the first time, the operator would simply reinsert the needle into the skin and apply more surges to the same hair follicle.

About twenty minutes into the treatment respondent again complained of pain and asked the operator if they could take a break. In response to respondent’s complaint, Ms. Shivers said that respondent’s hairs were tough and that she had to turn the machine up high in order to get the hair to come out. However, a card which had previously been filled out by another operator had noted that respondent’s hair was medium or fine rather than tough as claimed by Ms. Shivers.

After the break the operator resumed the treatment. However the pain persisted so respondent asked her to cease the treatment rather than continue for the entire forty-five minutes. After the treatment was terminated, respondent noticed in a mirror that her face was swollen and more red than usual. She then went home and applied Kree cream to her face, but about three days later infected pimples, began to develop on her face.

Approximately one month later, on January 29, 1981, respondent consulted Dr. Arthur Eisen, a dermatologist who had previously treated her for a moderate acne problem. Dr. Eisen is the Chief of the Division of Dermatology at the Washington University School of Medicine. On his examination of January 29, 1981, Dr. Eisen discovered that respondent’s acne was in good condition, but that she had punctate, dot-like areas of hyperpigmentation and some pitting on her chin and forehead. Dr. Ei-sen testified that respondent’s previous acne had resulted in little, if any, scarring. He stated that it was his opinion that this present condition was caused by the electrolysis treatment. He also stated, however, that such post inflammatory reactions could result from a variety of sources, and that they could result from electrolysis even if the electrolysis treatment was properly performed. He stated that it could be the result of too much current being applied, but that it also could result through no fault on the part of the electrolysis operator. Dr. Eisen stated that post-treatment complications from electrolysis occur infrequently, and that they will be encountered only about once or twice in twenty years of dermatology practice. When Dr. Eisen next saw respondent, on May 21, 1981, he noted some improvement and by her next visit, on January 9, 1984, the hyperpigmentation and pitting had been totally resolved.

Respondent submitted her claim under the doctrine of res ipsa loquitur. The res ipsa loquitur doctrine relieves the plaintiff of pleading and proving specific negligence, but not of pleading and proving general negligence, that is, the injury and such attendant circumstances as will support an inference of negligence. When this is done, the burden of rebutting the inference is upon the defendant. Glosip v. Kelly, 228 Mo.App. 392, 67 S.W.2d 513, 515 (1934). The doctrine of res ipsa loquitur applies only when (a) the instrumentality involved was under the management and control of the defendant; (b) the defendant possesses a superior knowledge or means of information as to the cause of the occurrence; and (c) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559 (1932); Swan v. Tygett, 669 S.W.2d 590, 592 (Mo.App.1984).

Respondent’s evidence was abundant on the first two elements: The appellant’s beautician, Ernestine Shivers, controlled the temperature of the needle, the duration of the charge, and the amount of charges to be given. She also controlled the selection of the type of cream which was applied to respondent’s face. Thus, at the time of the electrolysis treatment, all of the instru-mentalities for such treatment were within the control of Kree or of their agent, Ms. Shivers. Furthermore, Ms. Shivers was trained as an operator of the electrolysis machine and as a general beautician while respondent had no exact knowledge as to the detailed mechanical operation involved in the Kree method of electrolysis. These circumstances supplied the element of appellant's superior knowledge or means of information as to the cause of the occurrence.

The appellant’s challenge is not leveled against these two elements, however, but against the basic res ipsa element: whether injuries like respondent’s ordinarily happen when due care is used. This is a question of law since it is a judicial function to determine whether a certain set of circumstances does, as a matter of law, permit a certain inference. Epps v. Ragsdale, 429 S.W.2d 798, 800 (Mo.App.1968).

The law is well established that a plaintiff, under the theory of res ipsa loquitur, is not required to present evidence overthrowing every reasonable theory of non liability on the part of the defendant. Warner v. Terminal Railroad Association of St. Louis, 257 S.W.2d 75 (Mo.1953). The attendant facts must raise a reasonable inference of defendant’s negligence but they need not also exclude every other inference. Id. at 79. So long as plaintiff’s evidence does not show the cause of the casualty, or if the true cause is left in doubt, plaintiff is not deprived of the right to invoke the res ipsa loquitur doctrine. Scott v. Club Exchange Corporation, 560 S.W.2d 289, 294 (Mo.App.1977).

Appellants claim that respondent failed to make a submissible res ipsa loqui-tur case because she failed to prove an occurrence which does not ordinarily happen if those in charge use due care. However, the attendant facts in the instant case clearly raise a reasonable inference of appellant’s negligence. Respondent had electrolysis treatments 15 to 20 times previously and never had any complaints. During her treatment of December 27, 1980 (the treatment in question), she complained to the operator within five minutes after the treatment began that the treatment was more painful than before. The needle appeared to be much hotter than in previous treatments, and respondent testified that the operator gave more than two surges of the electrical charge to respondent’s hair follicles. She testified that at times the operator would reinsert the needle into the same facial hair and apply more surges of electrical current. Respondent’s witness, who was a teacher and practitioner of electrolysis, testified that in her practice and teaching she does not apply more than two charges of current into the skin so as to avoid any surface destruction to the skin.

While respondent’s expert witness, Arthur Eisen, M.D., opined that the hyperpig-mentation and post-inflammatory reaction could have been caused by a variety of sources, his opinion was that it was caused by the electrolysis. Dr. Eisen stated that there were no other traumatic agents present which could have irritated the inflamed areas and the areas around the follicles. While Dr. Eisen stated that the irritation could result from other sources, he also testified that it could result from too much current being applied. He related that if the irritation was caused by a source other than electrolysis, the pigment deposits would be more scattered, rather than concentrated around the hair follicles as they were here. Dr. Eisen declared that an irritant would have to be strong in order to produce an inflammatory response that would lead to hyperpigmentation. He asserted that by strong irritants he meant burn or thermal agents, or chemical agents. Finally, Dr. Eisen concluded that post-treatment inflammation after electrolysis is very infrequent, that one may come across maybe one or two cases of it in the course of twenty years of dermatology practice.

Appellant claims that the mere fact, and nothing more, that a person was injured is not sufficient to bring the res ipsa loquitur doctrine into action. Shafer v. Southwestern Bell Telephone Company, 295 S.W.2d 109, 114 (Mo.1956). Appellant alleges that the res ipsa loquitur does not apply unless the occurrence resulting in the injury was such as does not ordinarily happen if those in charge use due care. Pauley v. Baltimore & Ohio Ry. Co., 215 S.W.2d 78, 81 (Mo.App.1948). In the present case, however, the respondent’s testimony, as well as Dr. Eisen’s testimony that problems following electrology treatments are infrequent, unequivocally raises a reasonable inference of negligence on the part of appellant.

In Epps v. Ragsdale, 429 S.W.2d 798 (Mo.App.1968), an action similar to the present case, a customer brought suit under the theory of res ipsa loquitur against a beauty salon for damages resulting from scalp burns and loss of hair after she received a permanent wave. The court entered judgment on the verdict for the customer and the shop owner appealed asserting that the plaintiff failed to establish that injuries such as she had sustained ordinarily do not occur if due care is used. The appellate court held that it was a question of law since it is a judicial function to determine whether a certain set of circumstances does, as a matter of law, permit a certain inference. The question is answered when the court can take judicial notice based on common knowledge and experience that such an injury would not have occurred but for negligence in some form. Id. at 800.

The court concluded that it was common knowledge that many women have permanent wave treatments without damage to their scalps or hair, and that it was also commonly known that human hair and scalps are sensitive to caustic compounds and heat. The court concluded that these two commonly known facts lead to a third; that permanent wave treatments do not ordinarily cause scalp burns and hair loss of such severity if carefully performed by the beautician. The appellate court held that the doctrine of probabilities had been satisfied to the extent that the trial court did not err by permitting the jury to infer negligence from the facts of the occurrence. Id. at 801.

In the present case, it is commonly known that many women have unwanted hair removed at beauty salons by means of electrology without complications; it is also commonly known that skin is sensitive and can be scarred by excessive heat. Therefore, these two commonly known facts lead to a third: electrology treatments do not ordinarily cause severe inflammation, hy-perpigmentation and scarring if carefully performed. As stated in Epps, this evidence, plus the appellant’s exclusive control and superior knowledge, clearly satisfies the doctrine of probabilities to the extent that the trial court did not err by permitting the jury to infer negligence from the facts of the occurrence. Thus respondent’s claim was properly admitted under the res ipsa loquitur doctrine, and the trial court did not err in denying appellant’s motion for a directed verdict based upon the evidence presented at trial, from which a jury could have reasonably inferred appellant’s negligence.

Judgment affirmed.

GAERTNER and KAROHL, JJ., concur.


author: PER CURIAM.

text:
    William WITWICKY, Petitioner-Appellant, v. Jacqueline WITWICKY, Respondent.
    No. 48756.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 23, 1985.
    Justin C. Cordonnier, St. Louis, for petitioner-appellant.
    Theodore S. Schechter, Clayton, for respondent.
   PER CURIAM.

Petitioner-husband appeals from a judgment in a dissolution of marriage action. Specifically he challenges the award of child support and maintenance, the division of marital property and an award of attorney’s fees.

Husband’s challenges are based upon his analysis of his economic situation and employment status. There was evidence contrary to his analysis. His objection to the division of marital property concerns non-income producing property consisting mainly of the family home which was awarded to the wife who received custody of the three minor children. Husband is to receive a 20% interest in the net proceeds of sale when the property is sold.

Our review is that prescribed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Under that review we find no error in declaring or applying the law. We also find substantial evidence to support the judgment, and that it is not against the weight of the evidence. The awards made were within the considerable discretion vested in the trial court. An extended discussion would have no precedential value and the judgment is affirmed pursuant to Rule 84.16(b).

Judgment affirmed.

All concur.


author: GAERTNER, Judge.

text:
    Thomas H. GEORGE, Plaintiff-Appellant, v. McDONNELL DOUGLAS CORPORATION, Defendant-Respondent.
    No. 48906.
    Missouri Court of Appeals, Eastern District, Division One.
    April 23, 1985.
    Arthur S. Margulis, Clayton, for plaintiff-appellant.
    Dennis C. Donnelly, St. Louis, for defendant-respondent.
   GAERTNER, Judge.

Plaintiff appeals from an order sustaining defendant’s motion to dismiss Count I and II of plaintiff’s petition for failure to state a cause of action. We dismiss the appeal as premature.

Plaintiff, Thomas H. George, filed a four count petition against defendant, McDonnell Douglas Corp. In his petition plaintiff asserts four causes of action, Count I, wrongful termination; Count II, breach of contract; Count III, prima facie tort; and Count IV, service letter. All the allegations were primarily based on the same set of facts, that is, plaintiff, an employee of defendant, was allegedly wrongfully discharged.

Defendant moved to dismiss Counts I, II and III for failure to state a cause of action. The circuit court sustained defendant’s motion to Counts I and II, but overruled its motion to Count III. The record indicates no disposition of Count IV. From that order plaintiff appeals.

In order for the appellate court to have jurisdiction, the judgment which is appealed must be final. Taylor v. F.W. Woolworth Co., 641 S.W.2d 108, 110 (Mo. banc 1982). If a judgment is not final, the appeal must be dismissed. Knight v. Keaton, 660 S.W.2d 752, 753 (Mo.App.1983). A judgment is final and appealable if it “dispose^] of all parties and issues and leave[s] nothing for the court’s later determination.” Crow v. Bertram, 681 S.W.2d 6, 7 (Mo.App.1984). Additionally, a trial court may designate an order as final for purposes of appeal even if it does not completely dispose of all issues or parties so long as the order disposes of a “distinct ‘judicial unit.’ ” See Rule 81.06; Lipton Realty, Inc. v. St. Louis Housing Authority, 655 S.W.2d 792, 793 (Mo.App.1983).

In the present case the trial court entered the following order:

Defendant’s Motion to Dismiss Count I and II sustained. Defendant’s Motion to Dismiss Count III, overruled.

It is apparent from the order that the court did not designate it as final pursuant to Rule 81.06. Therefore, we must determine if “the claims on which [the] order was based were entirely separate, independent, and unrelated to the undisposed of claims.” Chubb Group of Insurance Companies v. C.F. Murphy & Associates, Inc., 656 S.W.2d 766, 772 (Mo.App.1983). If the claims are merely alternate theories of recovery based on the same wrong, the trial court’s order is not final nor appealable. Lipton Realty, Inc. v. St. Louis Housing Authority, 655 S.W.2d at 793; Lake v. Durham Life Insurance Co., 663 S.W.2d 322, 324 (Mo.App.1984). We find they were not.

Plaintiff asserts four causes of action in his petition against defendant. Each cause was based on essentially the exact same factual situation, that plaintiff had been wrongfully discharged by defendant. Specifically, Counts I, II and III to which defendant’s motion was directed all evolve from the same transaction or occurrence, the discharge of plaintiff. Plaintiff would be allowed only one recovery if he was wrongfully discharged. The various claims he asserts are merely alternative theories on which to base his possible recovery. As such, they are not separate, distinct units from which an appeal may lie. The appeal is dismissed as premature.

PUDLOWSKI, P.J., and KAROHL, J., concur.

      . An extended discussion of the alleged facts on which the case is based is unnecessary. However, it should be noted that plaintiffs statement of facts was in violation of Rule 84.04(h) in that there were no page references given as to the source of the information. Additionally, plaintiffs points relied on does not comply with Rule 84.04(d). It fails to enumerate the "wherein and why” of the court’s error.


author: KAROHL, Judge.

text:
    AFSHARI ENTERPRISES, INC., Plaintiff-Respondent, v. Barry VENZ, Defendant and Third Party Plaintiff, and Samuel B. Steimel, Defendant-Appellant, and Richard Cherry, Third Party Defendant.
    No. 49118.
    Missouri Court of Appeals, Eastern District, Division One.
    April 23, 1985.

      Arthur L. Poger, Clayton, for Samuel B. Steimel.
    Ronald David Edelman, Clayton, for Richard Cherry.
    James Allan Borchers, St. Charles, for Barry Venz.
    Carl F. Kohnen, Florissant, for Afshari Enterprises, Inc.
   KAROHL, Judge.

Plaintiff Afshari Enterprises, Inc. sued defendant Samuel B. Steimel and Barry Venz for rent due under a lease agreement. After Steimel failed to answer timely plaintiff’s Request for Admissions and Interrogatories the trial court granted plaintiff’s motion for summary judgment against Steimel only. Plaintiff’s same cause of action against Venz remains pending in the trial court. Likewise cross-claims by Venz against Steimel and a third party petition of Venz against Richard Cherry for indemnification and separate cross-claims by Steimel and Cherry against Venz for fraud and misrepresentation are unsettled. Steimel appeals summary judgment granted against him. The trial court did not designate the judgment against Steimel as final or appealable.

Steimel recognizes that the trial court’s order of summary judgment is not final and appealable but has filed this appeal to preserve his rights. Plaintiff agrees with Steimel that the order is not final and ap-pealable.

Section 512.020 RSMo 1978 governs the right to appeal and provides that an appeal may generally be made only from a final judgment. It has long been the rule that a final and appealable judgment must dispose of all parties and all issues in the case leaving nothing for future determination unless the trial court has ordered a separate trial of any claim or issue or has specifically designated the particular judgment as a final judgment for purposes of appeal. Chubb Group of Insurance v. C.F. Murphy & Associates, 656 S.W.2d 766, 771-772 (Mo.App.1983). When claims arise out of the same transaction or occurrences a non-jury judgment entered on only some of those claims is not final unless so designated. Id. at 772. Further, plaintiff’s claim against defendants Steimel and Venz is the same cause of action. Under these circumstances there is only one judicial unit which could not be made separately appealable. Payan v. Heise, 688 S.W.2d 403 (E.D.Mo.App.1985).

Here the trial court’s order did not adjudge the rights of all the parties and the court did not designate it as a final judgment for purposes of appeal. We find that the order is not final and appealable and therefore we lack jurisdiction to decide the appeal.

The appeal is premature and is dismissed.

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


text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Plaintiff-Respondent, v. Richard BUIE, Defendant-Appellant.
    No. 49348.
    Missouri Court of Appeals, Eastern District, Division One.
    April 23, 1985.

      Richard B. Blanke, St. Louis, for defendant-appellant.
    James A. Daugherty, St. Louis, for plaintiff-respondent.
   KAROHL, Judge.

Defendant-appellant, who was an account representative of plaintiff-respondent, Southwestern Bell Telephone Company, appeals trial court dismissal of Counts III, IV and V of defendant’s five count amended counterclaim.

Plaintiff sued defendant for breach of contract arising out of defendant’s alleged failure to pay a bill for a Yellow Pages Telephone Directory advertisement. Defendant answered and by compulsory counterclaim alleged intentional misrepresentation in Count I and breach of the alleged advertising contract in Count II. Defendant as an employee of plaintiff brought three additional counts by permissive counterclaim which alleged breach of a collective bargaining agreement in Count III, prima facie tort in Count IV relating to the acts in Count III, and prima facie tort in Count V resulting from plaintiff’s requested transfer of defendant from St. Louis, Missouri to Houston, Texas but denial of a subsequent request for transfer made by defendant’s wife who was also an employee of plaintiff.

Defendant had been suspended for nine days without pay and charged back $11,800 in commissions for allegedly associating customer advertising accounts improperly. After defendant’s suspension and subsequent chargeback of commissions, he pursued the grievance procedures contained in the applicable Collective Bargaining Agreement of plaintiff’s employer and defendant's union, Communication Workers of America, and ultimately submitted the dispute to binding arbitration. On February 25, 1983 arbitrator Wilbur C. Bothwell upheld the suspension and denied defendant’s grievance.

Plaintiff’s motion to dismiss Counts III, IV and V of the counterclaim alleged that the trial court had no subject matter jurisdiction. Plaintiff’s suggestions in support of its motion to dismiss stated: (1) defendant may not pursue litigation of the same dispute previously resolved by binding arbitration; (2) defendant did not pursue the grievance-arbitration procedures with respect to the chargeback of commissions within the time period specified in the Collective Bargaining Agreement; and, (3) defendant’s Count V is premised on plaintiff’s treatment of defendant’s wife, an employee of plaintiff, and defendant is not authorized to act on behalf of his wife. The trial court sustained plaintiff’s motion without stating reasons.

The scope of review of the motions to dismiss requires an examination of the pleadings allowing them their broadest intendment, treating all facts alleged as true, construing the allegations favorably to plaintiff [defendant in the case of a counterclaim], and determining whether, upon that basis, the petition invokes princi-pies of substantive law. Porter v. Crawford & Co., 611 S.W.2d 265, 266 (Mo.App.1980), citing Shapiro v. Columbia Union National Bank and Trust Co., 576 S.W.2d 310 (Mo.banc 1978). A pleading will not be adjudged insufficient upon a motion to dismiss if the allegations of the petition accorded a reasonable and fair intendment state a claim which can call for the invocation of principles of substantive law which may entitle the plaintiff to relief. Porter, 611 S.W.2d at 266, citing Kersey v. Harbin, 591 S.W.2d 745 (Mo.App.1979).

Initially we determine whether we have jurisdiction before we appraise the merits of a case. Union Electric Company v. City of St. Louis, 636 S.W.2d 75 (Mo.App.1982). The plaintiff contends that the trial court’s action and order was not final and appealable because it did not dispose of all issues between the parties. We disagree. Rule 81.06 states that “when a separate trial is had before the court without a jury of an entirely separate and independent claim unrelated to any other claims stated or joined in the case, then the judgment entered shall be deemed a final judgment for purposes of appeal ... unless the court orders it entered as an interlocutory judgment....” The trial court did not enter its dismissal as interlocutory. Plaintiff and defendant agree that Counts III, IV and V are totally different occurrences and bear absolutely no relevance to Counts I and II, or matters raised in plaintiffs petition. We find that Counts III, IV and V are not dependent in any respect on the outcome or final disposition of the petition or Counts I and II of the counterclaim. Crenshaw v. Great Central Insurance Co., 527 S.W.2d 1, 3 (Mo.App.1975). The trial court’s order is therefore final and appealable. We have jurisdiction and review on the merits.

Defendant contends that the trial court erred in dismissing Count V because the damage alleged is to defendant and not to his wife as plaintiff argues. Defendant’s Count V attempts to state a cause of action for prima facie tort against defendant. The elements of a prima facie tort are: (1) an intentional lawful act by the defendant; (2) an intent to cause an injury to the plaintiff; (3) injury to the plaintiff; and, (4) an absence of any justification or an insufficient justification for the defendant’s act. Porter, 611 S.W.2d at 268.

Defendant’s Count V pleads “that Plaintiff denied a geographical transfer to Defendant’s wife with the intent to injure Defendant; that Defendant was thereby damaged; and that said act was done in the absence of any justification or with insufficient justification for the Plaintiff’s acts.” .Defendant sets forth a claim of damages for his support of two households and moving expenses. The prayer is for both actual and punitive damages. Defendant’s Count V also states that defendant requested his transfer to Houston which he was granted. He was also granted his request for a hardship transfer back to St. Louis.

Although defendant has incorporated the elements of a prima facie tort into Count V, he has not pleaded facts to support a finding that plaintiff’s refusal to transfer defendant’s wife was unjustified. Defendant has ignored this essential element and as such Count V fails to state a cause of action on defendant’s theory.

Defendant has not pled that plaintiff had a duty to defendant to transfer his wife. In fact, defendant did not request the transfer for his wife or make his transfer conditional upon her’s. This is not a case in which the employer caused the transfer of a husband but denied same to wife with the intent to injure. Here defendant requested his transfer which he was granted. His wife thereafter requested her transfer which was denied. She had the option to remain employed and not move or move and cease her employment with that specific employer. It was her choice to remain employed in St. Louis which caused the alleged damage defendant suffered. As pleaded, the plaintiff was under no obligation and had no duty to relocate defendant’s wife. Defendant does not plead that plaintiff had an opening for employment in Houston, Texas or that the wife was not essential to the plaintiff’s operation in St. Louis. As far as the pleadings indicate plaintiff may not have been able to grant the wife’s request even if plaintiff so desired. The newly recognized prima facie tort must rest upon a breach of some duty owed to the pleader.

Although the trial court affirmed the plaintiff’s motion to dismiss for jurisdictional reasons we recognize the principle that if a trial court reaches a correct result for the wrong reason we must nevertheless affirm. Marcum v. Sagehorn, 660 S.W.2d 426, 429 (Mo.App.1983). The judgment of the trial court to dismiss defendant’s Count V is affirmed.

Counts III and IV of defendant’s counterclaim relate to a Collective Bargaining Agreement between defendant’s union and plaintiff. Count III is a breach of contract action brought against plaintiff. Defendant pleads in Paragraph 4 of Count III that plaintiff breached its agreement in the following ways: (1) a panel of three umpires was not duly selected by the parties; (2) the umpire did not give his settlement within five working days after reception of briefs and this in the absence of an “emergency situation;” (3) no valid election for expedited arbitration was made and the plaintiff therefore improperly facilitated and expedited arbitration proceeding under Article V instead of an arbitration proceeding under Article IV; (4) plaintiff entered a “chargeback of commissions” allegedly under Article XXXI, Section 3 of the 1980 Departmental Agreement in the amount of $11,800; and that said chargebacks were not authorized or permitted therein; and, (5) that defendant was falsely accused of associating new customer advertising accounts with one already assigned to him without common ownership between the accounts when in fact there was common ownership, and as a result defendant was charged back $11,800 in commissions and suspended for nine days without pay, all without just cause.

Defendant pleads further in Paragraph 5 of Count III that “the Union violated its duty of fair representation by arbitrarily, capriciously and in bad faith depriving Defendant of his right of cross-examination and impeachment testimony as well as by arbitrarily, capriciously, and in bad faith refusing to call one witness who would have shown common ownership between those alleged to be without common ownership. The union further breached their duty of fair representation by inadequate preparation and consultation with your Defendant; and the falsity of the company’s charges could have been discovered with a minimum of investigation; that the Union made no effort to ascertain the truth of the charges; that the Union’s aforesaid breach of duty seriously undermined the integrity of the arbitral process, and therefore, Defendant brings this action against Plaintiff under § 301(a), 29 U.S.C. § 185(a), for the breach of contract alleged in paragraph four (4), above, of this Count III; and Defendant contends that he is not bound by the decisions of the contractual arbitral process, undermined as such by the UNION.”

On this Count defendant claims damages for lost wages and commission for the unjust suspension and for the chargedback commission.

Count IV seeks actual and punitive damages for plaintiff’s prima facie tort which constitute the breach of contract action alleged in Count III. Defendant incorporated the allegations of Paragraph 4 (5) of Count III into Count IV and pleads that “said suspension and chargeback was done by Plaintiff with the intent to cause damage to Defendant; that Defendant was thereby damaged; and that said acts were done in the absence of any justification or with insufficient justification for the Plaintiff’s acts.”

Defendant claims actual damages for lost wages and commission for the unjust suspension and for the chargedback commission. Defendant states that plaintiff’s conduct was intentional and without just cause or excuse and that plaintiff “should be punished to deter it and others from like conduct, by an assessment of punitive damages.”

Defendant contends that the trial court erred in dismissing Count III because the contractual remedies of the Collective Bargaining Agreement were neither exclusive nor final because he alleges the union breached its duty of fair representation which seriously undermined the integrity of the arbitration process thereby removing the bar of finality and the purported requirement that all disputes be settled through contractual procedures.

Plaintiff disagrees and relies on Grubb v. Leroy L. Wade & Son, Inc., 384 S.W.2d 528 (Mo.1964) and argues this decision holds that a party may not pursue litigation of the same dispute previously resolved by binding arbitration. The court there affirmed summary judgment for defendant employer.

In Grubb five union members filed a grievance under their Collective Bargaining Agreement. The grievance was denied by a joint employer-employee committee. The Collective Bargaining Agreement required that the dispute next be submitted to arbitration. Instead the five members filed a common law suit alleging conspiracy and breach of contract. The Missouri Supreme Court held that they were bound by the arbitration clause in the Collective Bargaining Agreement thereby preventing suit in the state court. The plaintiffs-union members in Grubb made no response or verified denial to the affidavits and exhibits filed by the defendant in support of their motions for summary judgment.

Questions involving a labor union’s duty of fair representation are governed by federal law. Roach v. Consolidated Forwarding Co., 665 S.W.2d 675, 681 (Mo.App.1984). The court in Grubb decided that the union members were bound by their contractual agreement and had no remedy to relitigate their claims in the courts. The Grubb court did not, however, reach the question of the effect of an allegation that the union breached its duty of fair representation in the required arbitration within the labor contract. Grubb and its progeny are sound for the proposition that submission of a grievance to labor arbitration under a Collective Bargaining Agreement is binding on the parties and bars relitigation. These cases do not address the issue in the instant case and are consequently not decisive of the present dispute.

Missouri courts have jurisdiction and must decide whether there has been a breach of the duty of fair representation in a § 301, 29 U.S.C. § 185 breach of contract action. Vaca v. Sipes, 386 U.S. 171, 188, 87 S.Ct. 903, 915, 17 L.Ed.2d 842, 856 (1967).

The union’s breach of duty relieves the employee of an expressed or required requirement that disputes be settled through contractual grievance procedures; if it seriously undermines the integrity of the arbitral process the union’s breach also removes the bar of the finality provisions of the contract ... To prevail against either the company or the Union, petitioners must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union ... In our view, enforcement of the finality provision where the arbitrator has erred is conditioned upon the unions having satisfied its statutory duty fairly to represent the employee in connection with the arbitration proceedings. Wrongfully discharged employees would be left without jobs and without a fair opportunity to secure an adequate remedy ... Petitioners, if they prove an erroneous discharge and the Union’s breach of duty tainting the decision of the joint committee, are entitled to an appropriate remedy against the employer as well as the Union.

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567-572, 96 S.Ct. 1048, 1058-1060, 47 L.Ed.2d 231, 243-246 (1976).

Applying these principles, we conclude that the defendant has adequately pled a cause of action for breach of duty of fair representation in its breach of contract action and is entitled to have recourse to the courts on Count III. Hines, Id.

Defendant’s claim for prima facie tort in Count IV which relates to the breach of contract action in Count III is also reversed and remanded as it properly pleads a cause of action, See Porter v. Crawford & Co., 611 S.W.2d at 268, and is not barred by the arbitration provision of the labor contract alleged to be blighted by lack of fair representation by defendant’s union. The basis for the tort claim is the acts alleged and not the breach of contract. American Mortgage Investment Co., v. Hardin-Stockton, 671 S.W.2d 283, 293 (Mo.App.1984).

Plaintiff raises for the first time on appeal that “even if the subject matter of appellant’s Count III, IV and V were valid, they are untimely and barred by the (6) months limitation period in § 10(b) of the National Labor Relations Act (29 U.S. C.A. § 150(b). Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 76 L.Ed.2d 476, 103 S.Ct. 2281 (1983).”

The statute of limitations is a defense which must be set forth affirmatively. Rule 55.08. A party desiring to avail himself of the statute of limitations must plead the particular statute upon which he relies. Tudor v. Tudor, 617 S.W.2d 610, 613 (Mo.App.1981), and cases cited therein. What particular statute of limitations, if any, may have been appropriate here need not be determined. Limitations were not pleaded or otherwise specifically invoked. We need not give it consideration. Id. We do not reach and do not decide this issue.

The dismissal of Count V is affirmed. The dismissal of Counts III and IV is reversed and remanded.

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


author: MAUS, Judge.

text:
    MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Plaintiff-Respondent, v. Charles D. PEARSON, Defendant-Appellant.
    No. 13719.
    Missouri Court of Appeals, Southern District, Division Three.
    April 25, 1985.

      Lawrence N. Koeln, Centerville, for defendant-appellant.
    Bruce A. Ring, Michael J. Kuster, Jefferson City, for plaintiff-respondent.
   MAUS, Judge.

On June 12, 1981, the defendant received a “Notice to Remove Outdoor Advertising” from the Missouri Highway and Transportation Commission (Commission). On February 10, 1982, the Commission filed a petition seeking an injunction restraining the defendant from preventing the employees of the Commission from removing the sign designated in that notice. Defendant appeals from a judgment granting that relief.

There was little controversy about the facts. The basic facts were established by the Commission’s Request for Admissions, to which the defendant did not respond. The notice was on Form OAR-5. In general, it informed the defendant the sign was unlawful because of his failure to obtain or maintain a permit. The notice further stated the basis of unlawfulness could be corrected by the defendant filing an application for a permit within 30 days. It stated in unambiguous terms, “[fjailure to take the remedial action to comply with Sections 226.500 to 226.600 RSMo within the specified time shall result in the sign being removed by the Missouri Highway and Transportation Commission.”

By its decree, the trial court made the following findings and conclusions. The defendant owned the sign in question and the property on which it was located. The sign was unlawful because the defendant failed to maintain a permit for the sign. The defendant received proper notice for removal of the sign as provided by § 226.-580. The defendant did not seek administrative review or judicial review of the Commission’s determination of unlawfulness. The defendant does not by his three points on appeal question these findings and conclusions.

By his first point, the defendant contends the trial court erred in finding that he had not removed the sign which was the subject of the notice. He based this point upon his argument that the sign had been totally dismantled except for four posts. It was his testimony that after the notice, “the wooden timbers were all removed and burned and the sign panels were removed, it’s a standard sign panel and I have two sets. They were removed and taken and sandblasted and repainted and were put back up.” He did not reattach the trim panels. Before reinstalling the sign panels, he replaced four of eight support posts.

The complete or substantial replacement of a sign may be a significant factor in regard to some aspects of regulation. Compare Dept. of Transp. v. Keller Development Corp., 122 Ill.App.3d 1038, 78 Ill.Dec. 413, 462 N.E.2d 532 (1984); State ex rel. Nat’l Adver. Co. v. State Highway Commission, 624 S.W.2d 453 (Mo.App.1981). Such is not a factor in this case. First, the sign was repaired, but not substantially or totally replaced. Second, the requirement of a permit basically stems from the location of the sign. 7 C.S.R. 10-6.070.5(A)2. That requirement cannot be evaded by the removal and subsequent replacement of substantially the same sign in the same location.

The defendant’s second point is premised upon the proposition that if application had been made, the permit would have been issued. He argues the Commission has taken a frivolous position in forcing him to remove the sign when, after a permit is granted, it can be rebuilt. This point fails for two reasons. First, there is no certainty a permit will be issued. Second, the defendant understood he had 30 days after the receipt of the notice to apply for the permit. But, as he said, “At the time this was sent you people [the Commission] were so uncooperative I was uncooperative.” The defendant may not evade the requirement of a permit by his willful refusal to comply with the notice. Compare Osage Outdoor Adv. v. Mo. Hwy. & Transp., 677 S.W.2d 389 (Mo.App.1984); Drury Development v. State Hwy. Com’n, 637 S.W.2d 354 (Mo.App.1982), in which signs were erected without a permit.

Defendant’s third point is that the trial court erred because no permit would have been required if the sign had been used as an “on premises sign.” He cited § 226.-520(2); 7 C.S.R. 10-6.030; 7 C.S.R. 10-6.-015(15). That argument is self-defeating. The sign was not so used.

Further, the defendant declared to an employee of the Commission, “if anyone touched the sign you had better be able to hug the ground because a shotgun was within easy reach.” The propriety of the trial court’s action was clearly established by that declaration. City of St. Louis v. Friedman, 358 Mo. 681, 216 S.W.2d 475 (1948); 42 Am.Jur.2d Injunctions § 160 (1969). The judgment is affirmed.

CROW, P.J., PREWITT, C.J., and TITUS and FLANIGAN, JJ. concur.


author: DROWOTA, Justice.

text:
    William LINDSEY, Administrator of the Estate of Vickie Jean Lindsey, deceased, Plaintiff-Appellee, v. MIAMI DEVELOPMENT CORPORATION, Defendant-Appellee, and Troy Lee Castile, Defendant-Appellant.
    Supreme Court of Tennessee, Eastern Section, at Knoxville.
    May 6, 1985.

      Darryl G. Lowe, Kennerly, Montgomery & Finley, Knoxville, for defendant-appellant.
    Robert S. Olive, Olive & Olive, P.C., Knoxville, for plaintiff-appellee.
   DROWOTA, Justice.

Plaintiff brought this action against the Defendants Miami Development Corporation and Troy Lee Castile for the wrongful death of his daughter upon the theories of (1) negligent maintenance of the premises and (2) negligent failure to take immediate steps to get proper medical aid and assistance for his daughter when the Defendant Castile knew, or should have known, by the exercise of due care, that medical attention was needed immediately. The trial court granted the Defendants a summary judgment as to both of the Plaintiff’s contentions.

The Court of Appeals affirmed the trial court’s ruling on premises liability but reversed as to the Defendant Castile in the “failure to render aid” issue. Specifically, the Court of Appeals determined that Castile owed the decedent a duty to exercise reasonable care to render her aid in her helpless condition and found that there was a genuine issue concerning material facts in regard to Castile’s conduct after Ms. Lindsey was injured. Accordingly, the case was remanded to the trial court for trial as to the Defendant Castile.

On July 23, 1980, Castile hosted a political fund raiser in a building owned by the Miami Development Corporation. Castile leased part of the building for living quarters. The decedent, Vickie Lindsey, attended the political fund raiser. She was observed sitting on the edge of a balcony which overlooked a stone foyer and steps with her feet dangling, yelling in a loud voice for Castile. When Castile appeared, she told him that she wanted to come down. Castile told her to go back the way she came and to come down the stairs. The decedent refused. She told Castile, “I’m coming down,” and allegedly jumped, striking her head on the stone steps below the balcony. A blood sample later taken from Ms. Lindsey revealed that she had a blood alcohol content of 0.23%.

The record does not clearly establish the time when the decedent allegedly jumped. Castile testified that someone called an ambulance immediately. Shelia Julian testified that five minutes after Ms. Lindsey was injured she called Baptist Hospital and was told by a nurse to check the decedent’s pulse and breathing and to call back if she did not regain consciousness in thirty minutes. There is a factual dispute as to the amount of time which elapsed before an ambulance arrived and medical assistance was rendered to the decedent. There is evidence in the record which indicates that Castile told the people around Ms. Lindsey after she was injured to “wait a while before you call an ambulance.”

The ambulance service records establish that an ambulance was called at 2:19 a.m. and arrived at the scene at 2:28 a.m. The ambulance attendants were in contact by radio with Dr. Roy Parsons who was working in the Baptist Hospital emergency room that evening. When the attendants arrived, Ms. Lindsey was unconscious and her left pupil was dilated. At 2:32 a.m. Ms. Lindsey stopped breathing and the paramedics intravasated her. At 2:58 a.m. Ms. Lindsey arrived at the emergency room and was examined by Dr. Parsons. Both of her pupils were dilated and the cardiac monitor indicated that she had no cardiac activity. Dr. Parsons determined that Ms. Lindsey had sustained a basilar skull fracture and pronounced her dead at 3:00 a.m. An autopsy was never performed on Ms. Lindsey. Dr. Parsons testified that without the information that an autopsy would have provided in regard to the brain injury sustained by Ms. Lindsey, any opinion as to whether the decedent would have survived if she had received immediate medical care would be speculative.

Castile has appealed to this Court asserting that: (1) he owed no duty to render aid to Ms. Lindsey when she was unconscious and helpless; (2) that if he had such a duty, he satisfied that obligation by aiding the decedent; and (3) if there had been a breach of duty, it was not the proximate cause of Ms. Lindsey’s death.

Summary judgment is to be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” T.R.C.P. 56.03. “The court’s role in ruling on the motion is similar to its role in ruling on a motion for a directed verdict, and it must view the ... evidence before it in the light most favorable to the opponent of the motion.” Stone v. Hinds, 541 S.W.2d 598 (Tenn.App.1976).

It is axiomatic that three elements are necessary for the existence of a cause of action for negligence: (1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff which was proximately caused by the defendant’s breach of a duty. Ruth v. Ruth, 213 Tenn. 82, 372 S.W.2d 285 (1963). “A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Prosser and Keeton, Torts, § 53, p. 356 (5th ed., 1984) (“Prosser”). The court's role in determining whether a duty exists has been defined as follows:

“The Existence of a Duty. In other words, whether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of others — or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant. This is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court ... A decision by the court that, upon any version of the facts, there is no duty, must necessarily result in judgment for the defendant. A decision that if certain facts are found to be true, a duty exists, leaves open the other questions now under consideration [concerning the existence of negligence]. Prosser, § 37, p. 236.

The Defendant Castile asserts that the common law recognizes no general duty to aid a person in peril. See Osterlind v. Hill, 263 Mass. 73, 160 N.E. 301 (1928). It cannot be denied that courts have been slow to recognize a duty to render aid to a person in peril. Farwell v. Keaton, 396 Mich. 281, 240 N.W.2d 217 (1976); see Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959). This reluctance to recognize such a duty in situations in which aid can be rendered without exposure to danger and with little, if any, effort, has been subjected to extensive criticism by legal commentators. Prosser has noted that “[s]ome of the decisions have been shocking in the extreme” and that “[t]he remedy in such cases is left to the ‘higher law’ and the ‘voice of conscience’ which, in a wicked world, would seem to be singularly ineffective either to prevent harm or to compensate the victim.” Prosser, § 56 at p. 375.

While paying lip-service to the common law rule that a stranger owes no duty to render aid to another in peril, courts have recognized that such a duty exists where some special relationship between the parties has afforded a justification for the creation of such a duty. “Thus, a carrier has been required to take reasonable affirmative steps to aid a passenger in peril and an innkeeper to aid his guest ... [TJhere is now quite a general tendency to extend the same duty to any employer when his employee is injured or endangered in the course of his employment.” Prosser § 56, p. 376. Moreover, courts have determined that the relationship between an invitee on premises open to the public and the possessor of the premises justifies the creation of such a duty. Personal Representative of the Estate of John Starling & Fisherman’s Pier, Inc., 401 So.2d 1136 (Fla.App.1981); Depue v. Flateau, 100 Minn. 299, 111 N.W. 1 (1907); Hovermale v. Berkeley Springs Moose Lodge No. 1483, 271 S.E.2d 335 (W.Va.1980). Other courts have determined that a social guest-host relationship creates a duty to render aid. Grimes v. Hettinger, 566 S.W.2d 769 (Ky.App.1978); see Hutchinson v. Dickie, 162 F.2d 103 (6th Cir.1947).

It is important to note that the duty to render aid as created by such relationships is a duty to use reasonable care under the circumstances. “He [the defendant] is not required to give aid to one whom he has no reason to know to be ill. He will seldom be required to do more than give such first aid as he reasonably can, and take reasonable steps to turn the sick person over to a doctor or to those who will look after him until one can be brought.” Prosser, § 56 at p. 377; see Coccarello v. Round Table of Coral Gables, Inc., 421 So.2d 194 (Fla.App.1982).

The evidence in the record establishes that the decedent was a guest at the party hosted by the Defendant. We find that there was a social guest-host relationship between Ms. Lindsey and the defendant which created a duty on his part to exercise reasonable care to render aid to her when Castile knew or should have known that Ms. Lindsey was seriously injured.

We note that even if no relationship had existed between Ms. Lindsey and the Defendant, the Defendant assumed control of the situation which placed him under the obligation to exercise reasonable care to render aid to Ms. Lindsey. There is proof in the record that Castile instructed people at the party after Ms. Lindsey had been seriously injured “to wait a while before you call an ambulance.” Such conduct on the part of Castile triggered a rule of law which was defined by the Court in Farwell v. Keaton, supra, as follows:

“Without regard to whether there is a general duty to aid a person in distress, there is a clearly recognized legal duty of every person to avoid any affirmative acts which may make a situation worse. ‘[I]f the defendant does attempt to aid him, and takes charge and control of the situation, he is regarded as entering voluntarily into a relation which is attended with responsibility. Such a defendant will then be liable for a failure to use reasonable care for the protection of the plaintiffs interests.’ Prosser, supra., § 56, pp. 343-344. ‘Where performance clearly has been begun, there is no doubt that there is a duty of care.’ ” Id. 240 N.W.2d at p. 220.

In Slater v. Illinois Cent. R. Co., 209 F. 480 (M.D.Tenn.1911), the decedent was a trespasser on a train who fell under its wheels, suffering an amputated leg and severe cuts on his other leg. The defendant railroad took him from the accident site and left him in a boxcar on a siding, far removed from others who could have rendered assistance. Despite the decedent’s repeated requests for hospitalization, he was left alone for hours without medical attention. The decedent could have been saved by prompt medical care. He bled to death before the railroad delivered him to a hospital. The court found that by assuming control over the decedent, the railroad owed him a duty to exercise reasonable care to render aid to him and found it liable for his wrongful death. See also Zelenks v. Gimbel Bros., Inc., 158 Misc. 904, 287 N.Y.S. 134 (1935). The evidence before this Court, viewed in a light most favorable to the Plaintiff, supports an inference that by instructing the guests to “wait a while before you call an ambulance,” Castile assumed control of the decedent and became obligated to exercise reasonable care in rendering aid to her so as to not make her situation worse.

The Defendant Castile relies upon T.C.A. 63-6-218, the Good Samaritan law, which provides that anyone who, in good faith, renders emergency care to a person at a gathering open to the general public shall not be liable for any civil damages as a result of any act or omission by such person except for such damages as may result from that person’s gross negligence.” The purpose of Good Samaritan statutes is to induce voluntary aid by removing the fear of potential liability which acts as an impediment to that conduct. Thus Good Samaritan statutes are directed toward persons who are not under some pre-existing duty to remedy aid. Lee v. State, 490 P.2d 1206 (Alaska 1971). Accordingly, it has been held that a Good Samaritan Act does not protect a defendant who had a pre-ex-isting duty to render aid to the plaintiff. Lee v. State, supra. Since it has been determined that Castile had a relationship with Ms. Lindsey which placed him under a duty to render aid to her after she was injured, the Good Samaritan law affords Castile no protection in the case at bar.

Having determined that Castile owed the decedent a duty to exercise reasonable care in rendering her aid, we have closely reviewed all of the evidence before the Court in a light most favorable to the Plaintiff. Clearly, there is a dispute as to material facts in regard to Castile’s conduct after the decedent was injured. Although Castile testified that he immediately told someone to call an ambulance, there is proof in the record that he told his guests to wait a while before calling an ambulance. There is also proof in the record that a substantial period of time elapsed between the Plaintiff’s injury and the arrival of an ambulance. Under the facts before us, reasonable minds could reach different conclusions as to whether Castile breached the duty he owed the decedent. Accordingly, this issue must be resolved by the jury.

Castile argues that his conduct was not the proximate cause of Ms. Lindsey’s death. In Wyatt v. Winnebago Industries, Inc., 566 S.W.2d 276 (Tenn.App.1978) the Court noted that:

“Proximate cause, of course, is a concept that was developed in the law of negligence. See Prosser, supra., §§ 41-45. It’s first requirement is that the defendant’s act ... be a cause in fact of the injury. See Prosser, supra., 941. This means simply that the circumstances must be such that the injury would not have occurred but for [the defendant’s conduct].”

The issue is whether Castile’s breach of his duty to render aid was a “cause in fact” of Ms. Lindsey’s death. In a breach of a duty to render aid situation, the plaintiff has the burden of proving that the defendant’s breach of duty aggravated the decedent’s condition. “In order for the plaintiff in this case to maintain her cause of action in the face of a Motion for Judgment on the Evidence at the close of her case-in-chief, it was necessary that she present evidence of probative value that there was an aggravation of injuries, following decedent’s fall on the stairs, which could have been prevented by immediate aid.” Palace Bar, Inc. v. Fearnot, 269 Ind. 405, 381 N.E.2d 858, 866 (1978); see also Steckman v. Silver Moon, 77 S.D. 206, 90 N.W.2d 170 (1959).

The only medical proof in the record is the testimony of Dr. Roy B. Parsons, Jr., the physician who treated Ms. Lindsey in the Baptist Hospital emergency room. The pertinent portion of Dr. Parson’s testimony follows:

“Q. All right, do you hold any opinions as to whether or not a delay of any specified perior of time would have made any difference in the final analysis?
A. I can only speculate because we don’t have the final information which an autopsy would have provided as to where exactly the injury to the brain was, how extensive it was and whether it was an injury which would — in any event be non-survivable, whether it would be just a few hours or maybe a day or two.”
Q. With the history of a patient as Vickie Lindsey had the history of there of being unconscious after the fall and moaning and with only one eye dilated, would that be such a condition that could be salvageable had it been caught at the hospital if the person had been at the hospital in time?
A. This is something that we can only speculate in. I have seen patients come in like this and be able to — to help them, and sometimes they’ve recovered.

The above testimony is speculation and, as such, is not evidence which establishes proximate cause. As Prosser notes:

“The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant ...
The plaintiff is not, however, required to prove the case beyond a reasonable doubt. The plaintiff need not negative entirely the possibility that the defendant’s conduct was not a cause and it is enough to introduce evidence from which reasonable persons may conclude that it is more probable that the event was caused by the defendant than that it was not ...” Prosser, § 41, p. 269.

“A doctor’s testimony that a certain thing is possible is no evidence at all. His opinion as to what is possible is no more valid than the jury’s own speculation as to what is or is not possible. Almost anything is possible, and it is thus improper to allow a jury to consider and base a verdict upon a ‘possible’ cause of death.” Palace Bar, Inc. v. Fearnot, 269 Ind. 405, 381 N.E.2d 858, 864 (1978). “The mere possibility of a causal relationship, without more, is insufficient to qualify as an admissible expert opinion.” Kirschner v. Broadhead, 671 F.2d 1034, 1039 (7th Cir.1982).

The admissibility of an expert medical opinion, of course, should not turn on whether the testifying physician characterizes a particular potential cause of an injury as “conceivable,” “possible” or “probable.” See Trapp v. 4-10 Investment Corp., 424 F.2d 1261, 1268 (8th Cir.1970). Regardless of the term employed, if the physician’s
“testimony is such in nature and basis of hypothesis as to judicially impress that the opinion expressed represents his professional judgment as to the most likely one among the possible causes of the physical condition involved, the court is entitled to admit the opinion and leave its weight to the jury.” Norland v. Washington General Hospital, 461 F.2d 694, 697 (Cir. 8, 1972).
Nevertheless, a mere possibility is not an affirmative basis for a finding of fact. “In the language of the law of evidence, [a medical opinion suggesting] that which is merely possible, standing alone and not offered as auxiliary or rebuttal testimony is immaterial to the ascertainment of the fact and so is inadmissible as evidence of that fact.” Martin v. United States, 284 F.2d 217, 219 (D.C.Cir., 1960). Kirschner v. Broadhead, supra, 671 F.2d at p. 1039-1040.

Dr. Parson’s testimony as quoted above is speculative by his own admission and inadmissible. There is no admissible proof in the record as to the issue of proximate cause. However, our review of the record reveals that the proximate cause issue was not raised in the Defendant Castile’s Motion for Summary Judgment. There is no indication in the record that the trial court resolved this issue. Accordingly, this issue is remanded to the trial court. The Plaintiff shall be given thirty days in which to prepare and admit any evidence which meets the standards set forth in Rule 56 in regard to the proximate cause issue. The trial court can then rule on this issue in accordance with the guidelines set forth above.

The Plaintiff asserts that the Court of Appeals erred in affirming the trial court’s granting of summary judgment on his premises liability claim. The Plaintiff acknowledges that the only testimony in the record describing how Ms. Lindsey descended from the balcony is the Defendant Castile’s testimony that she jumped but argues that it is not appropriate for summary judgment to be granted because the testimony of other witnesses contradicts some of the other testimony of Castile and Castile can thus be impeached. It is true that Castile’s testimony is not entirely consistent with that of Angela Williams and Shelia Julian in collateral matters; however these three witnesses who were in the foyer under the balcony prior to, during and after Ms. Lindsey’s descent are consistent on the details of the conversation which occurred between Ms. Lindsey and the Defendant Castile just prior to her descent. The testimony of these witnesses establishes that the balcony was surrounded with plants and the decedent had moved some plants so she could sit down on the balcony. She was sitting on the edge of the balcony with her feet hanging off, talking to Castile who was on the stone steps below. She told Castile that she wanted to come down. Castile told her not to. He told her to get up and come down the stairs. She refused to and said: “I’m coming down.” Troy Castile testified that Ms. Lindsey jumped. The other two witnesses did not see Ms. Lindsey jump but their testimony verifies the conversation which occurred between the decedent and Castile. Angela Williams testified she heard the decedent fall for she was only three or four feet from her. No issue has been seriously raised as to Castile’s credibility on the factual issue described above. Reasonable minds can draw only one conclusion from the evidence in the record, that Ms. Lindsey jumped from the balcony and that she and she alone caused her initial injury. There is no proof in the record which has been pointed out by the Plaintiff or which has been revealed by our extensive examination of the record which supports any inference that Ms. Lindsey fell from the balcony because of a nonexistent or defective railing.

[T]he party opposing summary judgment must be able to point to some facts which may or will entitle him to judgment, or refute the proof of the moving party in some material portion, and ... the opposing party may not merely recite the incantation, “Credibility,” and have a trial on the hope that a jury may disbelieve factually uncontested proof. Curi v. International Business Machines Corporation, 517 F.2d 212, 214 (5th Cir.1975) quoting with approval Rinieri v. Scanlon, 254 F.Supp. 469, 474 (S.D.N.Y.1966).

In summary, we affirm the Court of Appeals’ finding that the trial court properly granted summary judgment on the premises liability issue. We have found that a social guest-host relationship existed between Ms. Lindsey and the Defendant Castile, which created a duty on his part to exercise reasonable care to render aid to her when he knew or should have known that she was seriously injured. We further found that a dispute exists as to material facts in regard to Castile’s conduct after Ms. Lindsey was injured. Whether Castile exercised reasonable care under the circumstances, was not an issue to be decided upon summary judgment. The issue of whether Castile’s conduct was the proximate cause of Ms. Lindsey’s death was not decided by the trial court and is therefore remanded for a determination of that issue in accordance with the guidelines set out in this opinion.

The costs of this appeal are taxed to the defendant Castile.

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

      . One court has rejected the distinction made by the common law between non-feasance and misfeasance and found a duty to render aid when no relationship existed between the person injured and the defendant. Soldano v. O'Daniels, 190 Cal.Rptr. 310, 141 Cal.App.3d 443 (1983) (defendant's bartender refused to allow a good Samaritan to use the bar’s phone, which was available for the use of its patrons, to call the police in an attempt to aid the decedent who had been threatened by someone in another drinking establishment across the street.)

      . The distinction between an invitee and a social guest has been abrogated in Tennessee in premises liability cases. The person in possession of the property owes the same duty to exercise reasonable care to invitees and to social guests. Hudson v. Gaitan, 675 S.W.2d 699 (Tenn.1984).