Garrard v. State Dept. of Public Health and Welfare

• Citation: 375 S.W.2d 582
• Decision Date: 06 January 1964
• Docket Number: No. 8202,8202
• Parties: Ellie Marie GARRARD, Claimant-Appellant, v. STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE, Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 582

375 S.W.2d 582

Ellie Marie GARRARD, Claimant-Appellant, v. STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE, Defendant-Respondent.

No. 8202.

Springfield Court of Appeals, Missouri.

Jan. 6, 1964.

Motion for Rehearing or to Transfer Overruled Feb. 27, 1964.

Cable & Stephenson, Kennett, for claimant-appellant.

Elmore G. Crowe, Edward D. Summers, Jefferson City, for defendant-respondent.

STONE, Judge.

Ellie Marie Garrard (hereinafter called claimant), who had been receiving aid to dependent children (hereinafter referred to as ADC) under Section 208.040, ¹ was removed from the rolls on September 15, 1961, by the Division of Welfare (hereinafter called the Division) because, on reinvestigation of the case, the 'medical review team' in Jefferson City concluded that the two children born to and residing with claimant and her husband, William Grady Garrard (hereinafter called Grady), were no longer deprived of parental support and care by reason of his physical incapacity. Claimant duly appealed to the Director of the Department of Public Health and Welfare, a hearing thereafter was conducted by a referee, and upon the record then made the Director found that 'while claimant's husband [Grady] may have some disabilities he does not have such a physical or mental defect, illness or disability that prevents him from performing any gainful work' and that, 'therefore, claimant is, at this time, ineligible for Aid to Dependent Children benefits.' Sec. 208.080. On subsequent appeal, the circuit court affirmed the Director's decision. Sec. 208.100. Still complaining, claimant brings the case to us.

Only two questions were, or properly could have been, presented to the circuit court, i. e., whether a fair hearing was granted to claimant and whether the Director's decision was arbitrary and unreasonable [Sec. 208.100(5)]; and we are limited to the same two questions, both of which have been briefed and argued here. Powers v. State Dept. of Public Health & Welfare, Mo.App., 359 S.W.2d 23, 25(1).

In support of her point that she was denied a fair hearing, claimant complains (1) that her counsel 'was deprived of the right of examining a witness from a certain document purported to be that witnesses' (sic) report,' (2) that inadmissible evidence and exhibits were received over objection, and (3) that the referee indicated 'by certain remarks and questions' bias and prejudice against claimant. We treat of these seriatim.

The 'certain document' mentioned in the first complaint was a medical report (on a Division form) dated January 6, 1961, by Dr. R. L. Palenske, Grady's physician since 1955 and a witness for claimant. In the course of this witness' examination by the referee, Dr. Palenske had confirmed the authenticity of the report and it had been identified as Division's Exhibit 1. After the referee's examination had been concluded, claimant's counsel put two additional questions to Dr. Palenske, neither of which referred to Exhibit 1, and the referee returned with another question, likewise unrelated to that exhibit. With no recess indicated, the transcript then shows that the referee offered Exhibit 1 and that claimant's counsel responded: 'I am going to, as a matter of course, object to the admission of this since I didn't get my hands on it until the doctor left.' But the statement of counsel, not sworn as a witness, did not prove itself or constitute evidence. City of Rolla v. Riden, Mo.App., 349 S.W.2d 255, 257; Wilson v. Motors Insurance Corp., Mo.App., 349 S.W.2d 250, 254(4); Engle v. Ferrell, 126 Mo.App. 577, 581, 105 S.W. 23, 24(5). And the transcript, which we must take as it comes to us [Bennett v. Wood, Mo., 239 S.W.2d 325, 327(2); Miller v. Dowling, Mo.App., 360 S.W.2d 345, 348(3); Baker v. Missouri National Life Ins. Co., Mo.App., 372 S.W.2d 147, 155(11)], otherwise does not show either that Dr. Palenske had left before Exhibit 1 was offered or that claimant's counsel theretofore had made any effort whatever to 'get my hands on it.'

The second complaint is directed to (a) leading questions by the referee to witness Glass, a caseworker, and (b) the admission in evidence of Division's Exhibits 2, 3 and 4. As to the complaint about leading questions, examination of the transcript discloses that claimant's counsel objected to only one question put to witness Glass and that question was not answered. Even in appellate review of a jury-tried civil case, we would accord no consideration to a belated objection, first interposed here, to the form of questions propounded upon trial. Cf. Faught v. Washam, Mo., 329 S.W.2d 588, 599(17); Stanziale v. Musick, Mo., 370 S.W.2d 261, 266(6). Certainly we should not be more critical of the conduct of an administrative hearing, particularly with respect to a matter, such as leading questions, so frequently found in contested procedures.

Turning to the exhibits, we find that Exhibit 2 purported to be an unsigned copy of a medical report dated August 14, 1961, from Dr. Charles F. Wilson of Cape Girardeau, to whom Grady had been directed by the Division for examination; that Exhibit 3 was a two-page unsigned 'social information summary' which, on the second page, included the finding of the 'medical review team' in Jefferson City; and that Exhibit 4 purported to be a six-page unsigned report from the Veterans Administration Hospital at Memphis, Tennessee, where Grady had been confined for observation and examination from June 3 to July 1, 1961. The reception of evidence in hearings of this character should be governed by the rules of evidence as applied in civil cases [Ellis v. State Dept. of Public Health & Welfare, 365 Mo. 614, 622, 285 S.W.2d 634, 640(7), affirming Mo.App., 277 S.W.2d 331, 335(5); Burley v. State Social Security Com'n., 236 Mo.App. 930, 163 S.W.2d 95, 96(5)], excepting insofar as such rules may be modified and relaxed by permissible legislative enactments. See Sec. 208.075, RSMo 1963 Supp.; Sec. 536.070. Exhibit 3 clearly was an inadmissible document. Ellis, supra, 365 Mo. loc. cit. 622, 285 S.W.2d loc. cit. 640. Although upon rehearing the signed medical report of Dr. Wilson would be admissible [Sec. 208.075, RSMo 1963 Supp.] and the report from the Veterans Administration Hospital might, upon a proper showing, become admissible under the Uniform Business Records as Evidence Law [Secs. 490.660 to 490.690; Ellis, supra, 365 Mo. loc. cit. 624-625, 285 S.W.2d loc. cit. 641-642], there is no doubt but that Exhibits 2 and 4 should not have been admitted upon the record before us. Ellis, supra; Barnes v. State Dept. of Public Health & Welfare, Mo.App., 320 S.W.2d 88, 91(3). In fact, capable counsel for the Department frankly so recognize in their brief, insisting, however, that the Director's decision 'clearly shows that it was based upon the competent and admissible medical testimony in the record, namely, the testimony of Dr. R. L. Palenske.' But, regardless of whether the Director considered these exhibits, their erroneous reception in evidence did not, in and of itself, demonstrate that claimant was not granted 'a fair hearing' within the contemplation and meaning of Section 208.100(5). And upon judicial review 'the court, as authorized in all nonjury cases by Section 510.310 [now Civil Rule 73.01, V.A.M.R.], will consider all the evidence duly preserved (whether admitted or not), which it finds to be admissible, and decide the case on such evidence.' Ellis, supra, 365 Mo. loc. cit. 624, 285 S.W.2d loc. cit. 641(17).

In presenting the third complaint, claimant's counsel direct attention to four leading questions by the referee (to no one of which was an objection interposed) and to the referee's comment, 'I believe that is too remote,' with respect to the testimony of a lay witness that, while Grady had been plowing cotton four or five years before the date of hearing, 'he had some kind of a spell.' Relying upon Jones v. State Dept. of Public Health & Welfare, Mo.App., 354 S.W.2d 37, counsel contend that, in the aforesaid particulars, the referee 'displayed bias and prejudice' against claimant who thereby 'was denied a fair hearing and determination.' We are in entire accord with the observations and holding in Jones, supra; but in that case the referee had made statements which manifested his bias against claimant, amounted to 'an openly expressed prejudgment of the controversy,' tended to intimidate claimant's husband (the allegedly incapacitated parent), and had the effect of disparaging and discrediting not only his testimony but also that of all witnesses who testified to his incapacity. [354 S.W.2d loc. cit. 40-41] However, the same vices do not inhere in the four leading questions and the single comment, which counsel for instant claimant deplore, and those questions and comment neither manifest the same purpose nor work the same result as did the referee's statements in Jones, supra. We are of the considered opinion that claimant was accorded a fair hearing. Davis v. State Dept. of Public Health & Welfare, Mo.App., 274 S.W.2d 615, 616(2); McCoy v. State Dept. of Public Health & Welfare, Mo.App., 271 S.W.2d 788, 790; Bollinger v. State Dept. of Public Health & Welfare, Mo.App., 254 S.W.2d 257, 259(4).

We pass to claimant's second point, i. e., that the Director's decision was arbitrary and unreasonable. Otherwise stated, the issue is whether the decision was based upon substantial evidence. Ellis, supra, 365 Mo. loc. cit. 618, 285 S.W.2d loc. cit. 637(2); Howlett v. State Social Security Com'n., 347 Mo. 784, 789, 149 S.W.2d 806, 810; Davis, supra, 274 S.W.2d loc. cit. 617(3, 6). If it was, it may not be disturbed, even though we might have reached the opposite conclusion upon the same evidence. Collins v. Division of Welfare, 364 Mo. 1032, 1037, 270 S.W.2d 817, 820(4); Dysart v. State Dept. of Public Health & Welfare, Mo.App., 361 S.W.2d 347, 350(1); Morton v. State Social Security Com'n., Mo.App., 205 S.W.2d 272, 274(5).

At the date of...