Dahlin v. Missouri Commission for the Blind

• Decision Date: 12 May 1924
• Docket Number: No. 3591.,3591.
• Citation: 262 S.W. 420
• Parties: DAHLIN v. MISSOURI COMMISSION FOR THE BLIND.
• Court: Missouri Court of Appeals

262 S.W. 420

DAHLIN v. MISSOURI COMMISSION FOR THE BLIND.

No. 3591.

Springfield Court of Appeals. Missouri.

May 12, 1924.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

In the matter of the application of Charlotta Dahlin for blind pension. From a judgment of the circuit court, denying same, applicant appeals. Reversed and remanded, with directions.

Thos. H. Gideon, of Springfield, for appellant.

C. H. Skinker, Jr., of Springfield, for respondent.

COX, P. J.

The petitioner, Charlotte Dahlin, was a pensioner under the original Blind Pension Act. Laws 1921, p. 554. This act NA as repealed, and a new act enacted, in 1923. Laws 1923, p. 302. By the provisions of the latter act all persons who were on the pension roll under the former act were required to make a new application, and a showing that they were entitled to a pension under the last act. The petitioner at bar filed her application before the probate judge of Greene county in proper form, furnished all necessary proof, and was examined by an oculist designated and approved by the commission for the blind. The certificate of the oculist, filed with the probate judge, was to the effect that the applicant was entitled to a pension under the act of 1923, and such finding was certified to the commission for the blind, together with all papers in the matter. The commission rejected the claim, on the ground that the applicant was shown to possess vision greater than what is known as light perception. She appealed to the circuit court of Greene county, where the question of the degree of vision possessed by the applicant was tried de novo before the court, and pension denied, and applicant appealed to this court.

At the oral argument of this cause something was said as to whether an appeal from the judgment of the circuit court will lie in this cause. If not, we, of course, have no jurisdiction. A question of jurisdiction may be raised at any stage of the case, and such may be considered by the court sua sponte. McMenamy Investment Co. v. Stillwell Catering Co., 267 Mo. 340, 184 S. W. 467. Not only such question may be so considered, but it is the duty of an appellate court to determine its jurisdiction whenever that question presents itself. Matlack v. Kline (Mo. App.) 190 S. W. 408; City of St. Louis ex rel. Hydraulic Press Brick Co. v. Ruecking Const. Co. (Mo. Sup.) 212 S. W. 887. Section 9 of the Blind Pension Act provides that any person

"aggrieved by the action of the commission for the blind may appeal from its decision to the circuit court or any judge thereof, of his or her judicial circuit within ninety days from the date the commission is notified of such grievance, and such court or judge shall proceed in a summary manner to hear and determine the matter on appeal according to law, having first duly notified the commission of such hearing. 7.f on an appeal such court or judge shall award a certificate entitling applicant to be placed upon the blind pension roll, a memorandum of such action shall be entered upon the proper records of said court and one copy thereof forwarded direct to the state auditor and one to the commission for the blind."

There is no provision in the act allowing an appeal from the finding of the circuit court. The act provides that the appeal from the commission may be to the circuit court or way judge thereof. In the cause at bar the appeal from the commission was to the circuit court, and it was the circuit court that heard the cause below; hence our question is: Will an appeal lie from the circuit court to this court? and not, will an appeal lie from the circuit court or judge thereof to this court? Section 1409, R. S. 1919, provides, among other' things, that any party to a suit, aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take an appeal to a court having appellate jurisdiction from any final judgment in the case. There is nothing in the Constitution that prohibits this appeal. Such being the case, is the statute broad enough to support the appeal at bar? It may be conceded that the judgment appealed from is a final judgment, so that question is out of the way. This leaves two questions: (1) Is the cause at bar 4 "suit," within the meaning of that term in the statute? and (2) is the cause at bar a "civil cause," as that term is used in the statute? Bouvier's Law Dictionary defines "suit" as a generic term of comprehensive signification, and applies to any proceeding in a court of justice in which the plaintiff pursued in such court the remedy which the law affords him for the redress of an injury or the recovery of a right. In State ex rel. Gardner v. Hall, 282 Mo. 425 loc. cit. 431, 221 S. W. 708, the essential elements of a suit are given as (1) a moving; (2) an adverse party; and (3) the necessity of a decision determining the issue. We think that the cause at bar is a "suit," within the meaning of that term as used in section 1469.

A civil action or cause has for Its object the recovery of private or civil rights or compensation for their infraction. Bouvier. Statutes relating to appeals are remedial, and should be liberally construed. Buck v.' St. Louis Union Trust Co., 267 Mo. 644, 185 S. W. 208. The fact that the blind pension statute does not make specific provision for an appeal from the judgment of the circuit court is not conclusive that an appeal will not lie. Appeals have frequently been allowed under the general law, when the specific statute was silent on the subject. See King's Lake Drainage & Levee District v. Jamison, 176 Mo. 557, loc. cit. 565, 75 S. W. 679. Our conclusion is that under the blind pension statute an appeal will lie from the judgment of the circuit court denying or allowing a pension.

Having disposed of the question of jurisdiction, we are brought to the merits. The question is raised as to the time at which the extent of vision of the applicant is to be determined. Is It the day of filing the application, or the date of the examination by the oculist, or the date the application is passed on by the commission, or the date of the trial in the circuit court on appeal from the commission? The first authoritative determination of the facts is made when the commission passes on the application. We see no reason why the commission should be bound to any date prior to the date of as determination. While the statute provides that the beginning of the pension shall be from the filing of the application, it is apparent that changes in the condition of the applicant as to any of the qualifications necessary to entitle a party to a pension might take place after the filing of the application which change might prevent its allowance.

In addition to the question of the degree of sight possessed by the applicant, there are property and other qualifications. An applicant might not be subject to any of these disabilities when the application was filed, or when examined by the oculist, but might be subject thereto when the application is passed on by the commission. In that event, the commission ought, and we think could, under the law, reject the application. Some one or more of these disabilities might be present when the application is filed, but not present when passed upon by the commission. In that event, it would seem that as to the commission the condition at the time of the hearing before the commission should be the proper date at which to determine the facts as to the eligibility of the applicant. Suppose, on the evidence sent to the commission by the probate judge, it should appear that the applicant was eligible, but the commission should learn of other testimony which would show the applicant not eligible. We think that on proper notice to the applicant the commission could secure the attendance of witnesses, and hear further testimony, or, if they should think it advisable, require further examination by approved oculists before passing upon the application. We see no reason why the circuit court could not follow the same course. Our conclusion is that the condition of the applicant at the time of the hearing is to govern, and this applies to both the commission and the circuit court.

The trial being de novo in the circuit court, and the suit, being, as we think, one at law, the only question to be determined by us is whether the trial court was justified by the evidence in rejecting applicant's application for a pension. At the trial in the circuit court the applicant testified that she had been examined about one year previous by Dr. Coffelt, and afterward by Dr. Klinger; hut the date of the examination by Dr. Klinger was not given. Both these men are approved as oculists by the commission. The applicant was then re-examined in open court by Dr. Klinger. In that examination, he moved his hand before the eyes of the applicant, and the following questions and answers were asked and given:

"Q. Did you see anything before you? A. Yes, sir.

"Q. Tell me which way it is moving? A. I cannot tell exactly; there is something.

"Q. Can you tell me which way it is moving? A. No."

The doctor then held his hand before the eyes of the applicant and asked:

"Q. Do you see an object before you now? A. Well, I don't know.

"Q. Can you tell me which way it moves? A. No.

"Q. Is it going up or down? A. I don't know. "By the Court: You say Mfrs. Dahlin cannot perceive motion? A. She cannot.

"Q. Can she see an object? A. No, sir.

"Q. You would say she has no better vision than light perception? A. Yes.

"Q. Has her condition changed since you examined her before? A. No."

This case was tried November 19, 1923. The examination of the applicant by Dr. Coffelt, which was filed with the probate judge, was made June 26, 1923, and in his report, which is on a questionnaire sent out by the commission for the blind, we find the following:

"(1) Is the applicant totally blind and absolutely unable...