Ellis v. State Department of Public Health & Welfare

ELLIS, Respondent, John R. PUBLIC DEPARTMENT OF

STATE WELFARE, AND HEALTH Appellant.

No. 44976.

Supreme Court of Missouri.

En Banc. 14, 1955.

Nov.

Rehearing Denied Jan. Dalton, Gen., Atty. M. Mc- Paul John

Ghee, Crowe, Atty. Gen., Asst. Elmore G. Mansur, Jefferson, appellant. Alfred M. Black, Mcllrath, David A. Flat C. Robert River, Buford, Ellington, M. C. for re- spondent. HYDE, Judge.

This proceeding is a to review action of the removing State Division of Welfare respondent (hereinafter claimant) called dependent from the aid to children rolls (cid:127) being physically as not incapacitated. This action appeal was affirmed on to the Di- Department rector of the Health (hereinafter ; Welfare Director) called appeal but on to the Court of Circuit Reynolds County, the court found that claimant “did not fair hearing have a in the cause nor a fair determination on the record” and was remanded the Direc- tor “for further hearing and redetermina- tion of the issues.”' order This was af- appeal firmed on Springfield Appeals. Department Ellis v. State Public Health Welfare, Mo.App., 277 S.W.2d 331. The case was transferred here application Department. of the (statutory 208.040 refer ences are RSMo and V.A.M.S.) after (Laws p. 755) authorized aid dependent children to be to a parent when under children the age of years sixteen (regularly attending school)' -3 .Co n Oi parental support sidered deprived language have been Howlett v. Social parent. Security Commission, physical incapacity of a reason 806, 810, S.W,2d issue in case is whether saying, Since cannot and “We physically incapacitated, respondent say do not oth- Commission’s deci upon sion requirements er statute not be arbitrary of this will facts and un , stated; incapaci- except physical simply toas reasonable might pos because we ty, sibly provided: was. “when have differently further bene- found upon the facts evidence; same fits are claimed on the basis this was within their province parent, probable mental alone. But if the ultimate deci sion incapaci- of the duration of the or mental commission is not based ty more, evidence, substantial must be three months or and the finding if must be obvious, incapaci- the is characterized arbitrary not as and unreason ty by able and competent shall be the certified to and determination reversed.” .Fol lowing appropriate by decision, authority designated the we have held: “If the may findings and division of welfare. Benefits order of the Director are supported granted by and continued this reason substantial evidence in the us, it the record before judgment may while is the division not disturb the defect, judgment appealed welfare that a or mental from and must af exists, firm it.” disability prevents, illness or which Collins Welfare, v. Division of Mo.Sup., parent 817, 819; the performing any 270 substan- S.W.2d also See C.J.S., 81 tially gainful activity.” Social Security 208.050 and Wel fare, provides: 27, p. 62 dependent “Aid children shall and Missouri cases § cited. a, respect This is not be or with narrower pro continued review than that * ** by 22, V, vided Sec. living child Who is Art. Const. (2) applicable parent stepparent, in a home with a and V.A.M.S. to all final administra tive quasi- both whom are decisions “which judicial able-bodied.” Section are or judicial requires “application private and aid, rights”; 208.060 that affect and dependent provides by children shall be further by made the that review the person include, courts shall with whom the child live while “in will cases in which a hearing required law, receiving may appeal aid.” A claimant is whether the supported by if same are benefits cancelled are and have-a hear- and sub his, ing county stantial in the con- the whole residence record.” ap- Wagner See Wood Corp.,- ducted the Director or referee Electric 355 pointed purpose. for such Sec. 208.080 as Mo. 197 S.W.2d 647. 1951, p. amended Laws it is 772. Thus the However, our is conclusion physical ability parent of the to work and broader review applicable is not to bene- actually not what he earns that is the de- fits authorized Sections 208.010 and factor, cisive (Placed 208.040. on same basis Sec. 208.060.) case, the supra, Howlett The review this kind of casé S.W.2d, “upon the is we said: circuit court the record' “Old age payments assistance benefits proceedings the had before and are not certified which a citizen is 208.100(4). Ap the director.” Sec. entitled a.right. as They peals gratuities are themselves given from the circuit court are by the likewise state “upon needy, the and long record in same manner as the principle * * * of classification appeals one, from the director to the reasonable legislature may deny circuit court.” Sec. 208.110. Remand them to one class granting while the Director is authorized .if the them court de another.” It Hardy further stated in hearing “that a fair cides and determination State Social applicant’s Security of the eligibility and rights Commission,-Mo.App., un 187 S.W.2d * * * (cid:127) granted. age der this law was 523: “Old not or assistance is a gratuity arbitrary sovereign. that his decision was of the. It is and un a creature of the 208.Í00(5).. right reasonable.” statute and We. con that a .not claimant.may or and as consideration for services rendered can it legislature grant demand. consideration”; will, may grant or some other valuable it withhold at cases, no under such because there are it with such reservations proper. rights, re- vested “must decide Such it deems conditions as binding reasonable, upon issues on the time strictions, are law as stands the time upon the of our decision and not as of courts.” See the commission the time and Public cause of action or of C.J.S., Security accrued also 81 Social Ill, of the trial court’s decision.” also Welfare, p. 38(a), Art. See 41. Sec. § Const, 571, 577, States, Lynch v. United U.S. age old classifies 840, 842, grant of 54 S.Ct. In State ex dependent 78 L.Ed. aid to children System Murphy, rel. Police Retirement money. 68, 72, we held persons eligibility re- who meet While up- police that “the retirement act confers acts are en- quirements public assistance beneficiary pension legal rights in the “pursuant grants to rea- receive titled to may deny fund which board without rules and authorized legally sonable law, process rights due and that such are administered, fairly and with- regulations ‘private rights’ meaning within the of Art. preferences”, discrimination or out undue V, pointed Section 22.” We out was “recipients applicants have or nevertheless true because “all such flow benefits from public right in or vested no inherent act, private rights created and not they receiving to are desire or board”, gratuities since “the extending, ex- receive”, “the matter of paid funds from which benefits are are withdrawing curtailing, or panding, part in collected from contributions made only.” public policy of assistance is one Compensa- by the members.” Workmen’s League Department of v. Citizens Senior V, requiring tion cases review under Art. 142, 228 P.2d Security, 38 Wash.2d Social 22 point are not in Sec. because Workmen's Child, 73 478, 483; Newland v. see also Compensation is in nature contractual 1066, 530, Thus 254 P.2d Idaho any gratuity. DeMay in a not sense v. rights because the vested there are no Co., 495, Liberty Foundry 37 time, abolish all may at Legislature, “pri- 640. Our conclusion is that Plowever, may be there vest- benefits. V, 22, rights” vate Art. covered Sec. already that have rights in allowances Const, ed rights are in the 1945 nature of County, Pope Creighton v. accrued. See property rights fundamental civil rights It 256, 50 N.E.2d 984. is also Ill.App. 320 protected the Bill Rights of our state of up pro- government sets “if a true and federal constitutions. Since bounty given that is gratuity or vision for a herein, rights are not involved we must the conditions within grace of as a matter provided V, hold that Art. review power to full to create or it specified, has applicable not and that the re- existing agency administrative vest an in this must pro- view case be on the basis the condi- whether authority to determine in the vided above mentioned statutes. of fact and to met matter tions are of material facts case stated as matter judicial review deny resort Appeals, S.W.2d, by the of Court loc. rel. State ex Westbrook right.” of 334, Commission, (57 years are as follows: Claimant Welfare Public Oklahoma old) purt said that he had worked 73; Helms “at near also P.2d see Okl. Commission, everything under the sun” in “younger 231 Ala. his Pension Alabama days” but that he had Supreme “regular had 807, 808. The no 163 So. employment since According 1943.” Hughes Illinois Illinois of * * * claimant, they he “what had call Commission, 2 118 N.E. I11.2d Aid nerves”, impaired down held “there broken 14, 17, 43 hearing, A.L.R.2d 2d pain in gratuitous pen- continual his neck rights in which “some- no vested are * * * pen- hurts bad where such times so by the State makes my granted sion hurt”, requital spells”, “weak bad head in contractual neuritis and sion index “the fire wood right around Centerville” and “ties He had lost his rheumatism. Glover”; and, Company Tie right middle fin- Moss finger joints of and two his years that plant the records five of the charcoal in a saw mill accident four or ger Pyrtle company of the tie (none pro- R. of hearing. Dr. which were before the J. that, that, Missouri, in his duced at the Centerville, hearing) during showed testified “ period ‘physically of six ending June, able months opinion, was not claimant job average of work that claimant has sold “an one regular of load to hold down a ” (His find- ties and one require labor.’ load cord wood” each manual weakness, week and had pressure, per earned about week. ings included blood low $35 However, the tremor, county centers not palsied, coordination director also said that neuritis, son, year claimant’s 17 spells, arthritis and old in the dizzy living proper, home, short, power owned truck and a saw rheumatism.) claimant’s with supported that worked He substantially his contention him. said: “I under- buys stand he physically incapacitated for manual timber and the two of them he plant.” cut it and truck work he was charcoal only character of labor—the Apparently, fingers sawing this was also true (He said his loss fitted do. Thus, ties. dizzy spell.) while this due to a evidence indicates the saw mill was produced by income working both them forms, exhibits, printed all on were Three together, it did not show much as to part the record” the referee. “made physical ability claimant’s manual do report” from Dr. R. “medical One was a labor. Poplar Bluff, whom Engelhardt C. county by the di- had been sent Therefore, apparent it is that claimant The doctor con- for re-examination. rector had substantial physical evidence of in- disability.” “no had cluded that claimant capacity prevent which him would “from “certification” was a form Another exhibit performing any substantially gainful activi- person that “this does Engelhardt from Dr. ty” deprive parental and children his of disability physical or mental have a support; and that there was no substantial incapacitated to work renders him which in the record to show there was occupation any the usual manner in physical incapacity no such unless med- experience, or ed- age, training, his which report ical and Engel- certificate of Dr. “medical him.” Both the would fit ucation fact, hardt was admissible. the record “certification” were dated report” and the Department representatives indicates the exhibit, 19, The dated third July 1952. that considered this certificate settled the “report 1, 1952, as a August was described no showing matter and further on their in the medical review team” of Jefferson part necessary. Appellant still makes director, who county was the City. The this contention and our attention is now Division, that only testified witness for called to amendment of Section 208.- report” of the “medical had forwared he '68th 040 General Assembly, H. B. previ- “some (together with Engelhardt Dr. 107, 1, V.A.M.S., so that the certificate evidence) reports” not in to the medical ous requirement now reads as follows: “The team, up “is made review medical physical incapacity or mental must be certi- a a doctor and welfare people, two of by competent fied medical or ap- to other worker, review the medi- who observe authority propriate designated by the divi- them submitted to information cal welfare, sion of certificate is * * * on a decision whether suf- make hereby declared to be evidence in incapacity justify exists to physical ficient any proceedings concerning eligibility public assistance.” dependent of such claimant to receive aid to children benefits.” testified that claim- county The director a truck and small saw “owned had ant closed”;, We think is the case was that it clear after that cer until mill plant”, the charcoal tificate of by designat “sold wood had he 640 However, report is Legis the medicál required authority may be ed ' dilrerent it precedent receiving because states facts found condition lature expert opinion based Engelhardt Lamber Dr. and his reí. See State ex benefits.

these (cid:127) States, 123; Long on United these facts. See 145 Padberg, 346 Mo. S.W.2d would Cir., think Mo. 59 F.2d 602. Hughes, 355 We Eagleton rel. ex State under Pope upon proper showing admissible 307; be Creighton v. 194 S.W.2d the Uniform as Evidence Business Records Ill.App. N.E.2d County, Law, Melton See con 490.660-490.690. the reasonable also believe 990. We Co., 363 Mb. v. St. Louis Public Service provision 208.- of Section struction 663; Gray required Louis- be S.W.2d v. St. is certificate is 577; Co., 864, 254 R. receive S. F. the rolls to anyone get can fore Co., Atchison, Mo. T. & F. R. Conser v. S. provided that it would be the benefits Nevertheless, if Sup., 266 S.W.2d 587. prove a certificate necessary that such proper only would showing, admitted on any proceeding to col granted had been weighed considered and be evidence (Apparently benefits. lect such facts) with (as the the Director finder these when he was was so certified ap the case. It is evidence in the other as indicated references benefits Therefore, that instead of such reports. parent this record from previous medical based on course, incapacity consideration the certificate the certificate to be conclusive. examination was deemed in evidence be admissible by the referee set out ap made also authorizes statements 208.080 See purpose. Sec. Appeals opinion, 277 in in the S.W. application disallowed peals an when 2d, Likewise, the statement of part any are mod or benefits whole and order However, decision removing a claimant facts in the Director’s ified.) testimony claim completely ignores the entirely an different mat the rolls is provision is no statutes ant’s doctor and does not even mention that There ter. per physical capacity he had medical evidence. a certificate .for decision activity; emphasizes physical incapaci certificate view -that gainful form a .the ty by competent ap in “be certified a certificate of mentioned propriate authority by designated that is the certificate made ad the divi capacity and welfare”; by clearly evidence the recent amend sion of and the decision missible a indicates that it is based on the would be no reason for certification There ment. incapacitated. (total the rolls that claimant not removal from was While hearing on stated, physical we benefits) the result was as have a certificate of of cancellation necessary physical of is a certificate condition determined precedent being placed in this the admitted on rolls to capacity. The certificate benefits, nevertheless, person does not have receive a certificate “this stated: case capacity disability automatically which ren does not mental of physical or a incapacitated conclusively in the usual one from the rolls and to work remove ders him any occupation deprive right for which his him of the benefits. at receive manner experience, requires competent or education training, It evidence age, substantial That, course, that, prima of the do after claimant has made a fit him.” was would course, in the hear a has the controlling issue to be decided facie case. Of Appeals, proof, with the of McBee agree Court of v. State We burden Social ing. Commission, S.W.2d, hearings Security Mo.App., cit. that held, gov Appeals should be and as the of herein involved one the as case, applied finding as “fact any rules of evidence administrative the erned cases; upon credibility the agency, passes and we hold this certificate of the in civil may up solely This is likewise true decide a claim admissible. witness was finding credibility of lack of a of uncon- on the medical review report of team of the unimpeached testimony tradicted of statement of the cer repeated the support of the claim.” fered 277 S.W. tificate. -Welfare; tivity shifts Director’s to the Division-of 2d, However, the loe. cit. and that the Health and it was Director of Public that indicates decision in this cáse must evi Welfare make his decision con- credibility claimant’s of not based competent sideration all- was no of evidence that there the dence. must hold We produced at hearing. produced evidence substantial hearing Division of Welfare Appellant complains also of our therefore, and, the decision in this case (cid:127)rulings that the rules of ap evidence as that the certificate the view based on plied cases, govern in civil proceedings in conclusive, was ar capacity appeals hearings; unreasonable. bitrary and .that reports medical stating facts are ad court is af- judgment the circuit missible under .the Uniform Business Rec only (for reasons see firmed to'result ords as Law, Evidence Secs. 490.660- S.W.2d, Appeals opinion, loc. Court of 490.690; saying compliance with such is remanded to the the cause requirements impose great too -a Department Director burden on the. Division of Welfare. As to for redetermination of Health and Welfare complaint, the first say is sufficient to the issues.. inadmissible evidence not.substan evidence,'which,-as tial pointed out, we All concur. necessary' to a course, sustain decision. Of this does not mean that case will be Rehearing Motion On for improper reversed admission of evi Instead,, dence.- opin court, our as authorized in Appellant misconstrues nonjury all cases 510.310, be re person cannot will holding ion that a consider all the up preserved evidence duly rolls public assistance moved from (whether not), perform admitted capacity to which it finds on a certificate of to be admissible, and decide on this activity. said case on gainful What we such evidence. admissibility of such subject applied to the hearing on an a certificate as the Director appeal the action of As complaint, to the latter the rolls. person from removing appellant think

Welfare supposed overestimates the application whatever to adminis It difficulties of making proper has no showing Welfare under trative action the’ Director Uniform Business Records Act. person (For from the rolls. Of removing a require discussion' of in. essential course, may see'Hospital the Director ments Welfare Records and “The Busi recipients frequently all of ness should have Records as Evidence Law” —Caru- investigated, Gilcrest, and act thers and 6 St. Louis Bar Journal judgment 1955.) with his the Oct. Appellant accordance says it cannot Sec, comply investigation. requirements facts disclosed such -with these without appeal, having If there is no his action 'as 208.130. witnesses the examining doctor course, is final to his future ac (subject, employee prepared-the or his who report. conditions) changed tion course, on report based Of the must be identified question thereafter no cáñ arise concern someone before it is admissible and Sec ing the of his action. We have tion 490.680 basis makes sufficient the identifi is removed from the claimant cation qualified held'that if custodian or other wit dependent children, by to the rolls for aid ness who testifies to its identity and mode Welfare, appeal, preparation; and takes an of its Director of and it is then-only nec then, hearing pro essary'-also the the to- show it was made'in credible, competent, regular substantial the duces evi course of-business at or-near prima make a the dence sufficient to facie case time the . examination. Certainly require this incapacity, burden of does going the doctor who made report witness, to forward the evidence to be a provision with show his engage capacity specifically gainful any qualified to made ac- for witness facts' and testify to essential minor, by HAMILTON, Florence JoAnn or settled at by deposition, be could done Hamilton, friend, Appellant, next Appellant argues that hearing. pretrial report un admissible hold should rule de hearsay exception to the der the Responden FULKERSON, Frank States, 59 F.2d Long United t. scribed No. 44696. idea have the cit. 603 and seems re all would remove ruling Supreme of Missouri. showing quirements of identification Division 1.No. However, Business preparation. 12, 1955. Dec. on the recognizes is based Records Act hearsay for rule

very exception Opinion Own Motion and Modified on Court’s contends; appellant but it broadens which Rehearing or to Transfer Motion for require application its and makes Jan. 1956. Court en Banc Denied admissibility ments for identification 9 Uni simple, definite and certain. See 385; Ann. Sec. form Laws Am.Jur. supplement and cumulative note Evidence, 3rd Ed. thereto; Wigmore standing alone writing 1520. “A Sec. evidence; constitute itself not of does proof accompanied

must can in jury from which of some sort that it was ex that it is authentic fer party by whom by the or written ecuted ad facts are

purports be unless adversary”. 20 by the mitted Am.Jur. Business holding, the Thus in really are hold applicable, we Act Records excep under the report admissible ing the appellant hearsay rule tion to the require provides That Act invokes. un reports admissible admitting

ments for exception; not sim and it

der such report. say official it is an plify matters showing necessary discussion of See reports Snider of official introduction 239; 491, 209 S.W.2d Mo. Wimberly, 357 517-524, 1633-1633a. Secs. Wigmore Wigmore (Sec. the statement view the Uniform Act 1520) that the reason Exception had application of this “the pet developed mass of detailed gradually to the no relation that have

ty limitations the documents

practical trustworthiness prevents rath

offered”, is that it view our difficulties, appellant, creates er than ap Records Act is Business that the hold reports. medical plicable to rehearing is overruled. motion concur.

All-

Case Details

Case Name: Ellis v. State Department of Public Health & Welfare

Court Name: Supreme Court of Missouri

Date Published: Nov 14, 1955

Citation: 285 S.W.2d 634

Docket Number: 44976

Court Abbreviation: Mo.