author: FINCH, Judge.

text:
    Alice Mason DOUTHET, Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
    No. 59615.
    Supreme Court of Missouri, En Banc.
    Feb. 14, 1977.
    Paul V. Gilbert, Cape Girardeau, for appellant.
    Manuel Drumm, Drumm & Stamp, Sike-ston, for respondent.
   FINCH, Judge.

This case, written on recent reassignment, presents another question arising under § 379.203 RSMo Supp. 1975, wherein it is mandated that automobile liability insurance policies delivered or issued for delivery in this state include uninsured motorist coverage as therein specified. More specifically, it involves the validity of a policy provision which says that from amounts payable under the uninsured motorist coverage because of bodily injuries sustained there shall be deducted those amounts paid or payable under any workmen’s compensation law on account of such bodily injuries. This question was ruled upon in Steinhaeufel v. Reliance Insurance Companies, 495 S.W.2d 463 (Mo.App.1973), but has not been considered by this court.

Plaintiff obtained a jury verdict against defendant, her uninsured motorist carrier, for $2,500 on account of personal injuries received in an accident with an uninsured motorist. Defendant sought unsuccessfully (by a proposed instruction and, in the alternative, by a post-verdict motion) to reduce the amount of the recovery by the sum of $529.05 paid by a workmen’s compensation carrier to plaintiff for compensation and for medical expenses incurred as a result of the injuries received in said automobile accident.

The appeal in this case was directed originally to the Missouri Court of Appeals, Springfield District. After opinion by that court, we ordered on application of defendant that the case be transferred pursuant to Mo.Const. art. V, § 10, and we now decide it as though here on direct appeal. We affirm.

The policy provision which directs that any amount payable thereunder is to be reduced by sums paid under the workmen’s compensation law on account of the same injuries is clear and unambiguous. “It is the rule that except to the extent a statute may inhibit or public policy control, parties to an insurance contract are free to place such limitations and restrictions on the insurer’s liability as they may be willing to agree.” Webb v. State Farm Mutual Automobile Ins. Co., 479 S.W.2d 148, 150 (Mo.App.1972). Hence, the question squarely presented is whether the foregoing policy provision is violative of § 379.203 which requires insurance policies to provide uninsured motorist coverage “in not less than the limits for bodily injury or death set forth in section 303.030, RSMo, for the protection of persons insured thereunder”.

Defendant argues that the purpose of § 379.203 is to give to one injured by an uninsured motorist the same protection which would have been available to the insured person if the uninsured tort-feasor had complied with the minimum requirements of the Motor Vehicle Safety Responsibility Law (hereinafter Safety Responsibility Law), and that the policy provision in question is not inconsistent with such statutory objective. To illustrate, it argues that if the tort-feasor who injured plaintiff had been insured and plaintiff has recovered $2,500 against him, she would have been required by § 287.150 to have reimbursed the compensation carrier for payments received by her from it. That would have resulted in a net recovery by her of $1,970.95. Consequently, argues defendant, if plaintiff’s recovery in this case is reduced by the $529.05 which she received from her compensation carrier, she will have received the same net amount as she would have if the tort-feasor had been insured.

This theory as to the meaning and purpose of § 379.203 is not in harmony with our interpretation thereof in Cameron Mutual Insurance Co. v. Madden, 533 S.W.2d 538 (Mo. banc 1976). The policy involved in that case covered two automobiles and as to each provided uninsured motorist coverage which included $10,000 coverage for one person and $20,000 for one accident. However, the policy contained a clause which undertook to restrict insurer’s total liability under the policy to the limits stated for one automobile. In other words, the policy sought by the clause to prevent “stacking” of coverages. This court held that § 379.-203 requires the specified minimum coverage on each automobile and that the public policy thereby expressed dictates that such coverages may not be restricted or diminished by contractual provisions which undertake to limit maximum coverage to the amounts specified for one automobile when such contractual limitations were not specifically authorized by the statute.

The dissenting opinion in Cameron referred to Sterns v. M.F.A. Mutual Insurance Co., 401 S.W.2d 510, 517 (Mo.App.1966), and argued that as therein stated the purpose of § 379.203 was to give the same protection to a person injured by an uninsured motorist as he would have had if the tort-feasor had been covered by the minimum coverage required by the Safety Responsibility Law. So construed, argued the dissenting opinion, the statute was satisfied if the policy provided minimum coverage to give the protection called for by the Safety Responsibility Law and, hence, it did not require stacking of coverage. If that reasoning had been adopted by this court, the result in Cameron necessarily would have been to uphold the limiting clause in the policy considered in that case. Instead, we held that the limiting clause did violate the public policy expressed in § 379.203 and, hence, was void.

Similarly, the case of Galloway v. Farmers Insurance Co., 523 S.W.2d 339 (Mo.App.1975), cited with approval in Cameron, recognized that an insurer may not, by contractual provisions, diminish coverage required by the Safety Responsibility Law. In Galloway, there were separate policies on two automobiles rather than a single policy covering two automobiles as in Cameron. Each policy provided coverage in amounts which complied with the Safety Responsibility Law but each contained a provision which stated that if other insurance in the company was applicable, no payment should be made thereunder which would result in a total payment to the insured in excess of the highest applicable limit under any one policy. In other words, it also undertook contractually to prevent stacking of the coverage in the two policies. In holding these contractual restrictions inconsistent with the public policy expressed in § 379.203 and, hence, unenforceable, the court said at 343:

“ * * * Public policy requires that coverage in the statutory amount under each of the policies stand undiminished by contractual limitation, regardless of whether the policies are issued by the same or different insurers. Numerous cases have permitted stacking of coverage under multi-policies issued by the same company to the same party, despite limiting policy clauses of the type under consideration. (Citations omitted.) * * * tf

A result consistent with that approved in Cameron and Galloway was reached in Webb v. State Farm Mutual Automobile Ins. Co., supra. In that case the insurer sought to reduce the sums payable under its uninsured motorist coverage by amounts due under its medical payment coverage in the same policy. It relied on a provision in the policy which stated that any amount payable under its uninsured motorist coverage would be reduced by sums paid or payable under the medical payments coverage. In denying such deductions, the court said, 479 S.W.2d at 152:

“ * * * [Defendant's policy provision which undertakes to reduce the amount payable under the uninsured motorist coverage by an amount due under the medical payments coverage is on its face repugnant to the mandate of our uninsured motorists and financial responsibility laws which require limits of not less than $10,000 for injury to or death of one person and $20,000 for injury to or death of two or more persons in any one accident. Although the question we consider has not been passed on previously by an appellate court of this state, the result we reach accords with the weight of sound authority in other jurisdictions which hold (under statutes substantially the same as our own) that an uninsured motorist policy provision which authorizes a setoff of payments owing thereunder by amounts payable under a separate medical payments coverage is void and unenforceable as resulting in a reduction of insured motorist coverage below the minimum required by statute. * * * ”

The holdings in Cameron, Galloway and Webb that § 379.203 requires that coverage in the amounts required by the Safety Responsibility Law not be diminished by contractual limitation, absent express statutory authority therefor, govern the outcome of this case. It would violate the public policy expressed in § 379.203 to permit diminution of coverage by requiring credit for workmen’s compensation payments. Hence, we hold that the policy provision requiring reduction of sums payable under the policy by workmen’s compensation payments is void. Such holding is consistent with the decision in Steinhaeufel v. Reliance Insurance Companies, supra.

In deciding this case we have considered eases from other jurisdictions, including those cited by the parties, some of which are consistent with the conclusion we reach and some of which are contrary thereto. In some instances cases upholding such limiting clauses are based on statutory authorization and are distinguishable for that reason. Others have not been found to be persuasive in interpreting our statute.

Defendant advances an additional argument which we have considered. It urges that we should adopt the interpretation of the statute it proposes because to do otherwise results in double recovery by the injured party to the extent that the total amount received exceeds her total damages. In other words, it argues that in this case the effect is to give plaintiff a windfall of $529.05. Such an argument was considered and answered in Steinhaeufel, supra, 495 S.W.2d at 467, when the court said:

“ * * * Another theory urged in other jurisdictions has been that it was not the intention of the legislature to provide a windfall to those who had been injured in accidents caused by drivers of automobiles covered by the standard automobile insurance policy. The answer to this seems to be that to allow an insurer to reduce its liability on uninsured motorist coverage would be a windfall to it. * * * If

See also Williams v. Buckelew, 246 So.2d 58, 68 (La.App.1971).

Furthermore, this last argument by defendant overlooks the fact that such a result regularly occurs when a plaintiff receives payments from a source unconnected with defendant such as hospitalization insurance. In such instances, the collateral source doctrine is applied and the courts consistently hold that the tort-feasor has no right to benefit from such payments. Stanziale v. Musick, 370 S.W.2d 261, 267 (Mo.1963); Kickham v. Carter, 335 S.W.2d 83, 89-90 (Mo.1960); Aldcroft v. Fidelity & Casualty Co. of New York, 106 R.I. 311, 259 A.2d 408, 412 (1969); 25 C.J.S. Damages § 99 (1966). In this case, the defendant did not create or pay for and was not the source of the workmen’s compensation payments received by plaintiff. If defendant company is allowed credit therefor, it receives a windfall in that its coverage is reduced in spite of the public policy of Missouri expressed in § 379.203. In such a situation, if there is to be a windfall, it should go to the injured person rather than to insurer. Steinhaeufel, supra; Adams v. Turner, 238 F.Supp. 643, 644-45 (D.D.C. 1965).

Judgment affirmed.

All concur.

RENDLEN, J., not participating.

      . All statutory references are to RSMo 1969 unless otherwise indicated.

      . The policy in question contained this provision under the section of the policy headed “Limits of Liability”:
      “(b) Any amount payable under this coverage because of bodily injury sustained in an accident by a person who is an insured under this coverage shall be reduced by: .
      (2) the amount paid and the present value of all amounts payable on account of such bodily injury under any workmen’s compensation law, disability benefits law or any similar law; ...”

      . It is true that in Sterns v. M.F.A. Mut. Ins. Co., supra, at 527, decided before adoption of our uninsured motorist statute in 1967, and in Webb v. State Farm Mut. Auto. Ins. Co., supra, at 151, the court of appeals stated by way of explanation and historical background that uninsured motorist coverage was designed to give the same protection to one injured by an uninsured motorist that he would have had if the tort-feasor had been covered by a standard automobile liability policy. As already noted, we do not agree with that interpretation of § 379.203. However, the decisions in those cases were not based upon such explanation of the purpose of our uninsured motorist insurance statute and our disavowal of such meaning of the statute is not intended to cast doubt on either of those decisions.

      . For those interested in other cases, see A. Widiss, A Guide to Uninsured Motorist Coverage § 2.65 (1976 Supp.); Annot. 28 A.L.R.3d 551 (1969); Annot. 24 A.L.R.3d 1369 (1969); 39 Mo.L.Rev. 96 (1974); 17 S.D.L.Rev. 152 (1972).

      . For example, see Safeco Ins. Co. of America v. Houchins, 12 Cal.App.3d 12, 90 Cal.Rptr. 414 (2d Dist. 1970).


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    Charles L. McDOWELL, Plaintiff-Respondent, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, Defendant-Appellant.
    No. 37079.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 7, 1976.

      James E. Taylor, Kansas City, Oliver, Oliver & Jones, John L. Oliver, Jr., Cape Girar-deau, for defendant-appellant.
    Schnapp, Graham & Reid, Maurice B. Graham, Fredericktown, for plaintiff-respondent.
   GUNN, Judge.

Plaintiff-respondent brought a negligence action against defendant-appellant Southwestern Bell Telephone Co. to recover damages for injuries sustained while plaintiff was using a telephone installed in his residence by the defendant. Plaintiff alleged that his injury was caused by a severe acoustical trauma brought about by a loud noise. The case was submitted to the jury on a res ipsa loquitur theory, and the jury returned a verdict in favor of plaintiff for $10,000.

On appeal, the defendant raises the following points: 1) error was committed in allowing plaintiff to introduce and comment on out-of-court statements of an employee relating to the source of the loud noise which produced plaintiff’s injury; 2) that the doctrine of res ipsa loquitur was wholly inapplicable to the facts of the case, particularly as there was no evidence of defendant’s control over the receiver from which the loud noise was alleged to have emanated; 3) that there was no substantial evidence to establish proximate causal relationship between any negligence and plaintiff’s injury; 4) plaintiff’s verdict director improperly modified the MAI; 5) plaintiff’s damage instruction was not supported by evidence; 6) plaintiff’s closing argument contained prejudicially erroneous comments; 7) the jury verdict was excessive. We find no reversible error and affirm the judgment.

While talking on the telephone with Mrs. Alice Johnson, plaintiff experienced a sensation in his left ear. As plaintiff related, it “was like someone hit me, slapped me across the head, hard.” Plaintiff’s wife, who was present at the time, saw the house lights blink and then almost immediately noticed an expression on plaintiff’s face as he held the telephone away from his ear. She testified that plaintiff exclaimed, “it bit me.” Plaintiff’s wife picked up the receiver and held it to her ear and heard a cracking and popping sound. Mrs. Johnson testified that she heard a sound over the telephone which she characterized as “kinda lightning and thunder run in on the telephone. ... It roared like lightning when it does on a wire.” Mrs. Johnson also testified that it “shook up” her ear.

Immediately after the incident, the plaintiff was stunned and dazed and began to have an earache and headache. He suffered some dizziness and had double vision and began to experience a buzzing sound in his left ear “like a cricket or a small electric motor running.” He noticed that he was having hearing problems in his left ear and difficulty discerning sound location. There was medical testimony that the plaintiff suffered a labyrinthine concussion in his left ear at the time of the initial trauma with some mild to moderate sensory neuro hearing loss in the speech frequency range. The buzzing sound in plaintiff’s left ear was diagnosed as tinnitus.

Plaintiff’s telephone was not rendered inoperative by the incident. Two days after the occurrence, plaintiff’s wife called defendant’s Fredericktown office to report the incident. She was referred to defendant’s employee, Harold Richardson, who, as wire chief, was in charge of wires and maintenance in the Fredericktown area. Richardson examined the telephone unit and the devices designed to prevent excessive noise from coming through the customer’s receiver and found them to be in proper order. Defendant also presented expert testimony to the effect that the sound protective devices functioned properly when tested and afforded adequate sound protection. However, one of defendant’s expert witnesses did concede that if the plaintiff and Mrs. Johnson were telling the truth and accurately described what happened, then the telephone and its protective devices would not have been functioning properly. Over defendant’s objection, plaintiff’s wife testified that wire chief Richardson had told her that the only cause of the incident that he could give would have been a “power surge.”

I

Defendant’s first point of alleged error concerns statements attributed to Harold Richardson regarding the possible cause of the noise. Defendant also asserts that it was error to permit the reading of a portion of Richardson’s deposition which related to his explanation as to the cause of the noise.

In response to plaintiff’s wife’s complaint, Richardson came to plaintiff’s home and inspected the telephone system. Plaintiff’s wife testified that when Richardson completed his examination she asked about the cause of the noise. Over defendant’s objection, plaintiff’s wife was permitted to relate the conversation: “I asked him what could have caused something like this and he said the only thing he could think of was a power surge.” Plaintiff’s counsel over objection also read portions of Richardson’s deposition in which Richardson reaffirmed what plaintiff’s wife related by stating: “I believe that I did mention it to Mrs. McDowell that it would be my opinion that a power surge would have been the only thing I could see that would even cause it.” Defendant contends that Richardson’s statement to Mrs. McDowell and his depositional statement constituted inadmissible hearsay, inasmuch as the plaintiff failed to establish that it was within the scope of Richardson’s employment to make such statements on behalf of defendant. Defendant relies primarily on Roush v. Alkire Truck Lines Inc., 299 S.W.2d 518 (Mo.1957), in this regard. But even if we were to consider that it was error to admit both Mrs. McDowell’s testimony and Richardson’s deposition, such alleged error cannot be held to be prejudicial. Richardson testified as a witness in defendant’s case. During direct examination, Richardson stated that he told Mr. McDowell that a power surge could have caused the noise: “After examining the telephone and finding no visual evidence of damage to the telephone itself, I then related to Mrs. McDowell, if Mr. McDowell was standing near the electric stove or anything like this; I said something like that. When the power company is overloaded you may get a power surge and cause a buzzing in the telephone or popping.” On cross-examination during trial, Richardson reiterated that he had told Mrs. McDowell that a power surge might have caused the problem:

“Q. And you did tell Mrs. McDowell that a power surge was the only thing that you could think of that might have caused this problem?
A. [Richardson] Yes.
Q. And, of course, you meant the power surge coming over the telephone.
A. Coming back through the telephone system.”

Thus, if Richardson’s in-court testimony as a witness for defendant was consistent with his deposition and the statement attributed to him by Mrs. McDowell, defendant was not prejudiced by the latter statements even had they been inadmissible. Kagan v. St. Louis Public Service Co., 334 S.W.2d 379 (Mo.App.1960), is a case in point. In Ka-gan, defendant contended that under Roush v. Alkire Truck Lines, supra, error was committed in permitting the plaintiff to testify about a statement made by the operator of defendant’s vehicle after an accident. While acknowledging that it was error to have admitted the operator’s statement (we do not necessarily find Richardson’s statements to Mrs. McDowell to be error), the Court of Appeals found the statement to be non-prejudicial as the operator later testified to the same effect at trial. Based on the evidence on this case, we find no prejudicial error, as Richardson in trial on direct and cross-examination reaffirmed what had been said by Mrs. McDowell and in his deposition.

Defendant also suggests that Richardson was not qualified by position or experience to state his opinion that a power surge would have been the cause of the incident leading to plaintiff’s injury. We find defendant’s argument in this regard to be somewhat specious. The record is clear that at the time of the investigation, Richardson was defendant’s wire chief for the Fredericktown area. Both defendant’s own counsel on direct examination and plaintiff’s counsel on cross-examination established Richardson’s impressive knowledge of the defendant’s telephone system and his technical expertise to expound on its workings including, at the request of defendant’s counsel, an elaboration as to “power surge”; that it was Richardson’s particular responsibility to investigate and determine the cause of the type of problem called in by plaintiff. The trial court found Richardson to be an expert witness and from our review of the record on Richardson’s qualifications we cannot find that the trial court abused its considerable discretion in permitting Richardson to testify as to the cause of the loud noise causing plaintiff’s injury, particularly since a portion of Richardson’s opinion was given at defendant’s counsel’s behest. State ex rel. State Hwy. Com’n v. Reynolds, 530 S.W.2d 34 (Mo.App.1975).

II

The second point argued on appeal by the defendant is that the doctrine of res ipsa loquitur is wholly inapplicable to a case in which a plaintiff claims to have suffered acoustical trauma from a telephone. The term “res ipsa loquitur” literally translated means “the thing speaks for itself.” Maybach v. Falstaff Brewing Corp., 359 Mo. 446, 222 S.W.2d 87, 89 (1949). The doctrine is applicable only when the facts produced speak of the negligence of the defendant. Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13, 18 (1943). When the doctrine is applied “it operates as a substitute for proof of specific negligence (cites omitted) and permits the ultimate fact of the defendant’s actionable negligence to be established by the showing of a particular kind of circumstantial evidence relating solely to the unusual character of the accident itself.” Brown v. St. Louis County Gas Co., 131 S.W.2d 354, 359 (Mo.App.1939). The doctrine serves as an aid to a plaintiff who does not know and cannot plead or adduce proof showing the specific cause of his injury. LoBello v. Laclede Gas Co., 517 S.W.2d 474 (Mo.App.1974). Establishing a prima facie res ipsa case creates a substantial factual inference of the defendant’s negligence that constitutes sufficient evidence of the defendant’s negligence. Clark v. Linwoood Hotel, Inc., 365 Mo. 982, 291 S.W.2d 102 (1956); Maybach v. Falstaff Brewing Corp., supra; Collins v. Nelson, 410 S.W.2d 570 (Mo.App.1965). For a prima facie res ipsa case, the plaintiff must establish the following three elements: 1) the occurrence resulting in injury was such as does not ordinarily happen if those in charge exercise due care; 2) the instrumen-talities were under the management and control of the defendant; and 3) the defendant possesses superior knowledge or means of information as to the cause of the occurrence. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557 (banc 1932); Furlong v. Stokes, 427 S.W.2d 513 (Mo.1968); Willis v. Terminal R.R. Assoc., 421 S.W.2d 220 (Mo.1967); Walsh v. Phillips, 399 S.W.2d 123 (Mo.1966); Long v. Spanish Lake Service, Inc., 507 S.W.2d 935 (Mo.App.1974). If one of the above elements is not present, then the case is not properly one for application of the res ipsa loquitur doctrine, Brown v. St. Louis County Gas Co., supra, and the burden is on the plaintiff to prove each factual ingredient necessary to establish a prima facie case. Shafer v. Southwestern Bell Telephone Co., 295 S.W.2d 109 (Mo.1956). It should further be noted that the burden does not shift to the defendant after the plaintiff has made a prima facie res ipsa loquitur case. McCloskey v. Koplar, supra.

It is the defendant’s contention that the res ipsa loquitur doctrine cannot be applied to a situation where a plaintiff is exposed to a loud sound transmitted through his telephone. The defendant contends that negligence cannot thereby be inferred, and, hence, the first element of a res ipsa case cannot be established. Whether or not an occurrence would ordinarily happen if those in charge use due care is a question of law and not a question of fact for the jury. Long v. Spanish Lake Service, Inc., supra. As there are no Missouri res ipsa cases in which a plaintiff seeks to recover for acoustical trauma caused by a telephone, we look to other jurisdictions for guidance. Eyerman v. Mercantile Trust Co., N.A., 524 S.W.2d 210 (Mo.App.1975). In Gandy v. Southwestern Bell Telephone Co., 341 S.W.2d 554 (Tex.Civ.App.1960), the doctrine was found to be applicable to an acoustical trauma case similar to the case before this court. In Gandy, the plaintiff was talking to her sister over the telephone when they both heard a loud, clashing noise through their respective telephone receivers. The plaintiff became partially deaf in one ear after the incident. She brought suit against Southwestern Bell, basing her action on res ipsa loquitur. In holding that the doctrine could apply, the court compared the acoustical trauma situation with cases in which persons using telephones received electrical shocks, and found a duty on the part of the defendant to prevent the transmission of dangerous amounts of sound: “As in the case of the transmission of electricity, the utility is under a duty to use the known necessary devices and methods to prevent the passage of dangerous amounts (of noise).” Id., 341 S.W.2d at 556. The court recognized that although the the telephone company’s negligence may not have created the noise itself, e.g. the court notes that the noise could have been caused by a third party slamming down the- extension of the party lines involved, it stated that the company is not thereby relieved of its duty to safely control the excessive sound that its phone lines emit. Id., 341 S.W.2d at 557. The court concluded that there was ample evidence to show that the sound did in fact occur, which permitted the inference to be drawn that whatever the origin, the maximum sound transmitted was negligently controlled by the telephone company. Id,341 S.W.2d at 557-58. See also Scott v. Diamond State Telephone Co., 239 A.2d 703 (Del.1968), which also recognized that an acoustical trauma case can be properly brought on a res ipsa theory.

We agree with the Texas court in Gandy v. Southwestern Bell Telephone Co., supra, that the telephone company has a duty to use known devices and methods to prevent the passage of dangerous amounts of sound. If a plaintiff can show that he was exposed to an excessive noise or sound when using the telephone, and, parenthetically, has also satisfied the two other elements of a res ipsa case, it can be inferred that the defendant breached this duty and was thereby negligent. We therefore disagree with the defendant’s position that the res ipsa doctrine can never be applied when a person using a telephone experiences an excessive sound and is thereby injured. There are Missouri decisions which have held the res ipsa loquitur doctrine applicable to cases in which a person received an electrical shock while using the telephone, and these cases lend support to our position. Robinson v. Southwestern Bell Telephone Co., 434 S.W.2d 249 (Mo.App.1968); Joyce v. Missouri & Kansas Telephone Co., 211 S.W. 900 (Mo.App.1918); Warren v. Missouri & Kansas Telephone Co., 196 Mo.App. 549,196 S.W. 1030 (1917). The defendant contends that the electrical shock cases are not in point. We see no distinction between the situation in which a person has received an electrical shock through the telephone receiver and the situation in which a person is exposed to acoustical trauma. In both cases it can be inferred that the telephone company breached its duty to use the highest degree of care practical in making safe the use of its phones and was thereby negligent. In Joyce, the plaintiff claimed to have received an electrical shock while using a telephone. In holding that the res ipsa loquitur doctrine properly applied to the case, the court said:

“[An electrical shock] does not follow when ordinary care is used in the management and construction of such instruments, and when it does it suggests something wrong with the management, the machinery, or the device, which, if not explained by the party charged, will raise a presumption of negligence against him.” Id., 211 S.W. at 902.

And, indeed, one of defendant’s experts did acknowledge that if the plaintiff and his witnesses were relating the truth, the protective devices were malfunctioning. In Warren v. Missouri & Kansas Telephone Co., supra, the doctrine was held to apply when an electrical shock was received from the telephone. The court said that the “defendant is required to use the highest degree of care practical in making safe the use of its phones.” Id., 196 S.W. at 1031. Although the defendant argued in Warren that it had exercised the requisite degree of care, the court responded: “The credibility of the explanation and its sufficiency were questions for the jury, and the prima facie case of the plaintiff is not necessarily overthrown by uncontradicted evidence that the appliances were constructed and operated in a proper manner.” Id., 196 S.W. at 1033. And in Seeley v. New York Tel. Co., 281 App.Div. 285, 120 N.Y.S.2d 262 (1953), in which the plaintiff and the other party on the telephone both testified that they received electrical shocks, the court, in holding that res ipsa loquitur applied, said: “Such incidents do not ordinarily happen if reasonable care is used in the installation, maintenance and control of telephone lines.” Id., 120 N.Y.S.2d at 266. See also Hanaman v. New York Tel. Co., 278 App. Div. 875, 104 N.Y.S.2d 315 (1951).

The defendant relies on Katz v. New England Telephone & Telegraph Co., 145 A. 14 (R.I.1929), which held that the plaintiff could not use the res ipsa doctrine in an acoustical trauma case. In Katz, the plaintiff alleged that she was injured when a loud noise or explosion came through the receiver of her telephone. In affirming a directed verdict for the defendant, the court stated that the evidence demonstrated that a great amount of voltage was required to produce the noise the plaintiff complained of, and the uncontradicted evidence showed that if the voltage had been of such a magnitude, then service on the phone would have been interrupted. Since the uneontradicted evidence demonstrated that the service had not been interrupted, the court concluded that there had been no increase in voltage and therefore no evidence that an excessive noise had been emitted. The court said:

“The business of the defendant is to carry speech and sound over the wire by means of electricity and the function of the telephone is to transmit sounds. (I)t is clear that (the plaintiff's) statement that the noise was due to faulty equipment or operation is inconsistent with facts clearly established. If the noise was produced by the current of electricity in the telephone apparatus, such a loud noise could not have been produced as plaintiff claims without an immediate and continued interruption of the service over that telephone line. The noise was of the same intensity at both ends of the line. But (the other party to the call) suffered no injury or serious inconvenience.” Id., at 15-16.

Thus, Katz holds that the plaintiff failed to prove that an excessive sound had been transmitted through her telephone. However, in dictum, the court stated that even if the plaintiff had demonstrated that the noise had been excessive, unusual and improper, there was no evidence to place the responsibility on the defendant. The court noted that the company produced evidence showing that its equipment did not produce the noise. The court hypothesized that since both phones involved were party lines, the noise might have been caused by a receiver being off the hook at any residence having in the party lines. Since there was no showing that the defendant’s negligence created the noise, the court concluded that the res ipsa doctrine would not have applied even if the plaintiff had proved that a loud noise had occurred. We are not persuaded by the dicta in Katz for two reasons. First, although it is not completely clear from the opinion, the court seemed to have made a different approach to the res ipsa doctrine than Missouri courts. It appears that the Rhode Island court was of the view that evidence produced by the defendant can prevent the plaintiff’s case from going to the jury. That does not appear to be the rule in Missouri. In Missouri, if the plaintiff produces a prima facie case under the res ipsa loquitur doctrine, he is entitled to go to the jury with it, even if the defendant’s evidence is unimpeached or uncontra-dicted. Robinson v. Southwestern Bell Telephone, supra. See also Clark v. Linwood Hotel, Inc., supra, where the court said, 291 5.W.2d at 105: “A prima facie showing of negligence under that doctrine raises a substantial factual inference of defendant’s negligence which amounts to evidence, as distinguished from a mere procedural presumption, that does not disappear upon the submission of evidence tending to exculpate defendant, but remains in the case as evidence sufficient to support an affirmative finding for plaintiff.” Second, in its dicta, the court in Katz focuses on who was responsible for creating the noise rather than focusing on whether the defendant was negligent in permitting the transmission of such noise through the plaintiff’s telephone receiver. As we stated earlier, focus should be on the latter. Therefore, to whatever extent the Katz decision stands for the proposition that occurrence of an excessive sound through a telephone receiver cannot support an inference of negligence on the part of the telephone company we are constrained to disagree with it.

To further support its contention that negligence cannot be inferred from the occurrence of a loud noise in a telephone receiver, the defendant cites several cases for the proposition that since the telephone is designed to produce sound, the fact that an excessive sound was emitted cannot give rise to an inference of negligence and therefore the res ipsa doctrine is inapplicable. We have read the cases cited by the defendant and find that they do not support the defendant’s theory.

Ill

Having determined that the res ipsa doctrine can be utilized by a plaintiff who alleges to have suffered acoustical trauma when speaking on the telephone, we now turn to the defendant’s third point on appeal — that the plaintiff failed to make a submissible case on the issues of negligence and causation. To determine whether the plaintiff has made a submissible case, this court must view the evidence in the light most favorable to plaintiff and give him the benefit of all inferences which may be reasonably drawn from the evidence supporting his cause of action. We disregard the defendant’s evidence, except as it aids the plaintiff’s case. Smith v. Allied Supermarkets, Inc., 524 S.W.2d 848 (Mo. banc 1975); Tri-Continental Leasing Co. v. Neidhardt, 540 S.W.2d 210 (Mo.App.1976); Oventrop v. Bi-State Development Agency, 521 S.W.2d 488 (Mo.App.1975).

The defendant first contends that the plaintiff failed to establish the second element of a prima facie ease — that at the time of the loud sound the defendant controlled and managed the hand receiver of the plaintiff’s telephone as well as the sound input into the receiver. As stated in discussing defendant’s second point on appeal, one essential element of a res ipsa case is that instrumentality causing the injury was under the management and control of the defendant. Niman v. Plaza House, Inc., 471 S.W.2d 207 (Mo. banc 1971); Furlong v. Stokes, supra; Willis v. Terminal R.R. Assoc., supra; Walsh v. Phillips, supra; Long v. Spanish Lake Service, Inc. supra. The control element is essential, because it ties the defendant to the occurrence that would not ordinarily happen if those in charge exercised due care. Merely demonstrating that an incident occurred is not enough. The plaintiff must also show that it was the defendant who controlled the instrumentality causing the injury, for this permits the inference to be drawn that it was the defendant who was negligent. Niman v. Plaza House, Inc., supra; Maybach v. Falstaff Brewing Corp., supra; Brown v. St. Louis County Gas Co., supra.

The defendant argues that since the undisputed evidence shows that the plaintiff had physical possession over the telephone receiver when the incident occurred, it cannot be said that the defendant had exclusive control over the instrumentality causing the injury. We find that this contention is without merit. Exclusive control has been defined by Missouri courts as not necessarily meaning physical control, but refers to the right of such control. Smith v. Wabash R. Co., 416 S.W.2d 85 (Mo. banc 1967); Walsh v. Phillips supra; Parlow v. Carson-Union-May-Stern Co., 310 S.W.2d 877 (Mo.1958).

Initially, it was stipulated between parties that defendant was the owner of the system installed in plaintiff’s home, including the lines, telephone protection, wires and telephone receivers and that it exercised control of the system to the point where the telephone wire entered plaintiff’s home. Additionally, plaintiff testified that defendant installed the telephone unit in plaintiff’s house and that he had nothing to do with any of the unit mechanism. While defendant entreats us to find that plaintiff’s physical possession of the telephone destroys the res ipsa case, we cannot do so. The plaintiff was using the telephone in the usual and normal manner as intended by defendant when the unit was placed by the defendant in plaintiff’s home. There is no contention that the telephone unit was used improperly by plaintiff. The fact that the plaintiff had possession of the unit within the house does not prevent a finding that the instrumentality (the unit) that caused the injury or through which the injury was caused was controlled and managed by defendant. Plaintiff did not, in fact, have control of the telephone mechanism or its workings. Clearly the mechanical forces of the phone were in control of the defendant and the telephone was merely being used in the usual and normal manner. We find that the defendant had the requisite control over the receiver of plaintiff’s telephone. Niman v. Plaza House, Inc., supra; Parlow v. Carson-Union-May-Stern Co., supra; Clark v. Lindwood Hotel, Inc., supra; Warren v. Missouri and Kansas Telephone Co., supra; Robinson v. Southwestern Beil Telephone Co., Inc. supra; Joyce v. Missouri and Kansas Telephone Co., supra; Gandy v. Southwestern Bell Telephone Co., supra.

Defendant’s reliance on Brown v. St. Louis County Gas Co., supra, is not persuasive, for in Brown the instrumentality involved was owned by the plaintiff and in her exclusive control. Not so here.

Defendant also argues that it did not have control of the sound input over the telephone, but such argument is misplaced. The defendant focuses on the creation of the noise over which, it argues, it had no control. But the correct focus in this case is on the inference of negligence to be drawn from the fact that the loud noise, however created, passed through the telephone receiver due to an apparent failure of the sound protective devices. As we have already stated, the defendant has a duty to use the highest degree of care practical to keep its telephones and apparatus used therewith safe or so as to be used with safety. Warren v. Missouri & Kansas Telephone Co., supra; Gandy v. Southwestern Bell Telephone Co., supra. We have also stated earlier that the occurrence of a loud noise over the telephone lines injuring a person holding the receiver will permit the jury under the res ipsa loquitur doctrine to draw the inference that the defendant breached such duty and was thereby negligent. There is no dispute that the defendant managed and controlled the various protective devices designed to prevent excessive noises from passing through the telephone receiver. Thus, even if a third party were negligent in creating the noise that caused the plaintiff’s injury, this would have no impact on the defendant’s negligence in permitting excessive sound to pass through the telephone system and into the plaintiff’s telephone receiver. Therefore, under the facts of this case, the plaintiff did not have to prove that the defendant controlled the source of the sound in order to make a submissible res ipsa loquitur case, and thus, the defendant’s contention is without merit.

The defendant further contends that the plaintiff failed to produce substantial evidence that the defendant possessed superior knowledge or the means of acquiring knowledge as to the cause of the occurrence. We agree with the defendant that this is an element of a prima facie res ipsa loquitur case. Furlong v. Stokes, supra; Willis v. Terminal R.R. Assoc. supra; Walsh v. Phillips, supra; Long v. Spanish Lake Service, Inc., supra. “The doctrine of res ipsa loquitur serves as an aid to the injured party who does not know and cannot plead or adduce proof showing the specific cause of the injury. . . . (W)here the plaintiff’s evidence does not clearly show the cause of the accident or where the cause is in doubt, the plaintiff may invoke the res ipsa doctrine.” LoBello v. Laclede Gas Co., supra, 517 S.W.2d at 477. Although the superior knowledge requirement was never specifically dealt with in those electrical shock and acoustical trauma telephone cases that held that the res ipsa loquitur doctrine was applicable, it must be said that in finding that a submissible res ipsa case had been made, these cases recognized that the telephone company possessed superior knowledge, or the means of acquiring superior knowledge of the cause of the occurrence. See Robinson v. Southwestern Bell Telephone, supra; Joyce v. Missouri & Kansas Telephone Co., supra; Warren v. Missouri & Kansas Telephone Co., supra; Scott v. Diamond State Telephone Co., supra; Gandy v. Southwestern Bell Telephone Co., supra. The facts relevant to the question of whether the defendant telephone company had superior knowledge or the means to acquire knowledge of the cause of the occurrence in the case before us are similar to those in the cases cited, and therefore we find that the plaintiff has satisfied this element of his cause of action. In those eases that held that the doctrine could not be applied to acoustic trauma fact patterns, the superior knowledge requirement was not discussed. See Katz v. New England Telephone & Telegraph Co., supra; Gallaher v. Waynesboro Mut. Telephone Co., supra.

In its final attack on the sufficiency of plaintiff’s evidence, defendant argues that the plaintiff failed to produce substantial evidence to establish any proximate causal relationship between the accident and plaintiff’s hearing difficulty. Plaintiff’s medical expert testified that as a result of the initial trauma from the telephone, plaintiff suffered a hearing loss and that there was “a direct causal relationship between the acoustical trauma and his hearing loss.” Plaintiff also testified as to his hearing difficulty after the incident including a buzzing, headache and earache and loss of sound direction. We believe the causation element was adequately fulfilled by the complementary testimony of the exert medical witness and plaintiff. See Harrison v. Weller, 423 S.W.2d 226 (Mo.App.1967).

Summarizing plaintiff’s evidence which we believe sufficient for a jury to find liability against defendant are the following facts: 1) plaintiff heard a loud noise (the telephone “bit” him; it was like being hit on the ear, hard); 2) that some sort of acoustical disturbance passed through the telephone into plaintiff’s ear was corroborated by plaintiff’s wife (she noticed the dazed look and heard a popping and cracking in the receiver after she picked it up) and by Mrs. Johnson (“kinda like lightning and thunder”); 3) defendant’s own expert conceding that if what plaintiff and his corroborating witnesses stated was the truth, then defendant’s noise protective devices had malfunctioned; 4) defendant’s wire chief Richardson’s acknowledgement that a power surge, apparently unchecked by the sound protection devices, could have caused the noise; 5) defendant’s control of the telephone system and its devices; 6) the resultant injury to plaintiff.

Therefore, in this case we have considerably more than plaintiff’s unsupported and unsubstantiated statement that he heard a noise over the telephone; there are several additional factors which permit the doctrine of res ipsa loquitur to apply. But we are also fully mindful that a promiscuous application of res ipsa to every so called noise over the telephone can lead to mighty abuses and that we should indeed be circumspect in applying the doctrine in telephone acoustical trauma cases. We have not held that every crackle, ping, pop or other noise heard over the telephone is sufficient to bring the cause within the doctrine. We have not held that every subjective complaint about a “noise” on the telephone brings the case within the doctrine and is sufficient to establish an inference of negligence. Obviously, it is necessary to give thoughtful and careful consideration to the facts of each particular case where application of res ipsa is sought on a complaint for telephone acoustical trauma.

IV

In its fourth point, the defendant attacks the plaintiff’s verdict directing Instruction No. 2. That instruction reads:

“Your verdict must be for plaintiff if you believe First, defendant Southwestern Bell Telephone Company was the operator of the telephone system, and Second, the telephone receiver made a sudden loud noise, and Third, such loud noise was the direct result of negligence of defendant, Southwestern Bell Telephone Company, and Fourth, as a direct result of such negligence the plaintiff sustained damage.”

The defendant first contends that since the res ipsa loquitur doctrine is inapplicable to this case, the instruction should not have been given. Having resolved this question against the defendant earlier in this opinion, there is no need to reiterate why the doctrine is applicable.

The defendant also claims that the phrase “operator of the telephone system” is an improper modification of MAI 31.02(2) in that it fails to properly submit the control requirement of the res ipsa loquitur doctrine. The defendant contends that “operator of the telephone system” is too broad in that it is not limited to the instrumentalities involved, and that the proper hypothesis of control would have been a requirement that the defendant controlled the sound input into the plaintiff’s telephone receiver. There is no dispute that there is no MAI instruction to fit the facts of this case and therefore a modification was necessary. When modifying an MAI instruction, Rule 70.01(e) controls:

“Where an MAI must be modified to fairly submit the issues in a particular case, or where there is no applicable MAI so that an instruction not in MAI must be given, then such modifications or such instructions shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.”

In testing the legal sufficiency of instructions, a court “should not be hypertechnical in requiring grammatical perfection, the use of certain words or phrases, or any particular arrangement or form of language, but * * * should be concerned with the meaning of the instruction * * to a jury of ordinarily intelligent laymen.” Bartleman v. Humphrey, 441 S.W.2d 335, 348 (Mo.1969); Tietjens v. General Motors Corp., 418 S.W.2d 75, 86 (Mo.1967); Snyder v. Chicago, Rock Island & Pacific R.R. Co., 521 S.W.2d 161, 164 (Mo.App.1973). While we agree with the defendant that the phrase “defendant . . . was the operator of the telephone system” is a broad formulation of the control requirement, we believe that when the first paragraph is read in conjunction with the remaining paragraphs of the instruction, a jury of ordinarily intelligent laymen, in determining that the defendant was liable, would have to find that in controlling the telephone system, the defendant controlled the plaintiff’s telephone and controlled the protective devices connected to it. Paragraph Second of the plaintiff’s verdict director focuses on the telephone receiver. It was stipulated that this telephone was owned and installed by the defendant. We believe that a jury of ordinarily intelligent laymen, having heard the evidence, could only read the term “telephone system” used in paragraph First as referring to and including the telephone system in the plaintiff’s residence. Although the instruction could have been made more specific by including in paragraph First reference to the management and control of the specific telephone and its protective devices we believe that no error was committed in submitting paragraph First. Furthermore, if the defendant were of the view that no MAI form was applicable, and that the instruction offered by the plaintiff was too general, it was the defendant’s duty to offer a more specific instruction. Boten v. Brecklein, 452 S.W.2d 86 (Mo.1970).

The defendant next attacks the second paragraph of the plaintiff’s verdict-directing instruction which reads: “Second, the telephone receiver made a sudden, loud noise.” The defendant contends that there was no evidence to show that a noise had been emitted and therefore no evidence to support this submission. In our discussion of the defendant’s third point we found that there was sufficient evidence to show that a noise had been emitted and therefore we rule against the defendant on this point.

The defendant further attacks the second paragraph, as well as the third paragraph of the instruction claiming that there was no evidence to show that the sound was “loud” and, furthermore, that the word “loud” is a relative term that gives the jury free rein in determining whether the defendant was negligent. We have already noted plaintiff’s testimony that the telephone “bit me,” “hit me open handed across the ear, hard,” Mrs. Johnson’s testimony of lightening and thunder, and plaintiff’s wife’s testimony of “cracking and popping.” We believe that such evidence was sufficient to show that the plaintiff heard a “loud noise.” We now consider whether the use of the word “loud” in the instruction gave the jury free rein to determine negligence as the defendant claims. “It is the general rule that ‘words of common usage which are generally understood, when used in a charge to the jury, need not be defined in the absence of a request . . and not always when requested.’ ” S. P. Personnel Associates v. Hospital Building & Equipment Co., Inc., 525 S.W.2d 345, 350 (Mo.App.1975). See also State v. Goodman, 490 S.W.2d 86 (Mo.1973); Burns v. Vesto Co., Inc., 295 S.W.2d 576 (Mo.App.1956). We believe that “loud” is a commonly understood word defined as “marked by intensity or volume of sound” in Webster’s Third New International Dictionary, unabridged, (1961) and that it was not error to use the term to describe the noise. A cursory examination of the instructions contained in the MAI reveals that instructions containing relative adjectives have been approved. See for example MAI 17.02 where the term “speed” is modified by the adjective “excessive.” Both “excessive” and “loud” are relative terms not subject to a precise, objective definition. They are both words of common usage and meaning, and it is for the jury to determine whether or not something was “excessive” or “loud” under the facts of the particular case. We therefore hold that no error was committed in including the term “loud” in the plaintiff’s verdict director.

Having found that the plaintiff’s verdict directing instruction was supported by substantial evidence and that the modification, while possibly inartfully phrased, was not improper, we conclude that no error was committed in the trial court’s submitting the instruction to the jury.

The defendant also contends that the plaintiff was not entitled to have his case submitted under a general negligence theory due to the fact that through one of his own witnesses, Robert Bayles, the plaintiff introduced evidence of specific negligence. The defendant points to Bayles’ testimony as a rebuttal witness for the plaintiff that in his opinion the plaintiff had not been afforded complete protection from excessive noise due to the defendant’s rendering inoperative certain 7-amp fuses. The defendant claims that this is evidence of specific negligence.

“(W)here specific negligence, the real or precise cause, is shown definitely by direct evidence there is no room for the presumption or inference which the res ipsa rule affords. The plaintiff is bound by his evidence in a res ipsa case just as he is in an ordinary negligence action and cannot in effect say to the jury, ‘I have shown you exactly how this collision occurred but you are, nevertheless, still at liberty to speculate and presume that it may have happened some other way.’ ” Rea v. St. Louis-San Francisco Ry. Co., 411 S.W.2d 96, 99 (Mo.1967). See also LoBello v. Laclede Gas Co., supra; Duncker v. St. Louis Public Service Co., 241 S.W.2d 64 (Mo.App.1951).

However, although the plaintiff’s evidence may tend to show the specific cause of the accident, he will nevertheless not lose the benefit of the res ipsa doctrine if after his evidence is complete, the true cause is still left in doubt or is not clearly shown. Stevens v. Missouri Pacific R.R. Co., 355 S.W.2d 122 (Mo.1962); Collins v. Nelson, 410 S.W.2d 570 (Mo.App.1965). Thus, we must determine whether the testimony of Robert Bayles constitutes “such a clear and definite showing of what actually happened, or so clearly etch and outline the precise and specific act of negligence that caused plaintiff’s injuries, as to exclude all doubt as to the true cause of the occurrence.” Stevens v. Missouri Pacific R.R. Co., supra, 355 S.W.2d at 130. After a review of Bayles’ testimony, we find that it does not exclude all doubt as to the true cause of the occurrence. While there was some reference to specific negligence in Bayles’ direct testimony, on cross-examination such testimony was positively established to be inaccurate, and the specific negligence completely vitiated. Having reviewed Bayles’ testimony it cannot be said that plaintiff had definitely shown the real and precise cause of his injury. Thus, he should not be deprived of the use of the res ipsa doctrine.

V

In its fifth point on appeal, the defendant contends that the trial court erred in submitting Instruction No. 6, the damage instruction, to the jury. Instruction No. 6, which is MAI 4.01, reads:

“If you find the issues in favor of the plaintiff, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe he sustained [and is reasonably certain to sustain in the future] as a direct result of the occurrence mentioned in the evidence.”

The defendant claims that it was erroneous to refer to future damages in the instruction since there was no evidence to support the plaintiff’s claim that his injuries were permanent. It is axiomatic that submissions to the jury must be supported by substantial evidence. Kramer v. May Lumber Co., 432 S.W.2d 617 (Mo.App.1968); Settell v. Horgan, 362 S.W.2d 769 (Mo.App.1962). See also MAI 4.01 Notes on Use. Furthermore, the burden is on the plaintiff to show the permanency of his injuries. Yates v. Bradley, 396 S.W.2d 735 (Mo.App.1965); Heibel v. Robison, 316 S.W.2d 238 (Mo.App.1958).

The plaintiff has two complaints which he claims are permanent. The first is a buzzing in his left ear, diagnosed as tinnitus, which he testified he has had continually since the telephone incident. He stated that there was no medication available to stop the buzzing. The other complaint deals with hearing problems in his left ear. He testified that he cannot hear as well since the incident, and had never noticed any problems with his hearing before the injury. He also related problems he had discerning sound location. Plaintiff’s medical witness testified:

“Q. ... Do you have an opinion, based upon a reasonable degree of medical certainty, as to whether or not this tinnitus, this buzzing in the ear, is a permanent condition?
A. Yes, I do. I feel it probably will be permanent.”

It is questionable whether the doctor’s response satisfies the requirement that permanent injury be shown with reasonable certainty, as he uses the term “probably.” However, the physician’s other testimony concerning the permanency of the plaintiff’s hearing loss does satisfy the reasonable certainty requirement. Plaintiff’s doctor diagnosed the plaintiff’s hearing condition as a mild to moderate sensory neuro hearing loss in the speech frequency range and positively stated that the condition was permanent and that there was no generally accepted course of curative treatment. We believe that through his own testimony concerning his hearing difficulties, and through that of his medical witness, the plaintiff did produce sufficient evidence to justify including future damages in Instruction No. 6. See Goins v. O’Keefe, 412 S.W.2d 513 (Mo.App.1967). We therefore hold that no error was committed in submitting the damage instruction to the jury.

VI

Defendant argues that the trial court erred in permitting plaintiff’s counsel in closing argument to comment on the size of defendant corporation and its responsibility to the public. The trial court has wide discretion in controlling argument of counsel and we defer to the judgment of the trial court, finding no error. Burian v. Dickens, 527 S.W.2d 26 (Mo.App.1975); Rohlfing v. State Farm Fire and Casualty Co., 349 S.W.2d 472 (Mo.App.1961).

VII

Finally, defendant asserts that the jury verdict of $10,000 was excessive. The jury is vested with broad discretion in fixing the amount of the award, and in determining whether a jury verdict is excessive we view the evidence in the light most favorable to the verdict. Blond v. Overesch, 527 S.W.2d 663 (Mo.App.1975). The appellate court will not interfere with the action of the jury unless the injustice of the size of the verdict is manifest. Woodford v. Illinois Central Gulf R.R. Co., 518 S.W.2d 712 (Mo.App.1974). A review of the evidence shows that the plaintiff, who was 38 years old at the time of trial, suffered a permanent hearing impairment in his left ear and tinnitus, which is a permanent buzzing in the ear. Giving consideration to the requisite factors which govern our review of an excessive verdict issue as found in Woodford v. Illinois Central Gulf R.R. Co., supra, Young v. Jack Boring’s Inc., 540 S.W.2d 887 (Mo.App.1976), and Hodges v. Johnson, 417 S.W.2d 685 (Mo.App.1967), and also considering the shrinking value of the dollar and the broad jury discretion allowed, we cannot find the verdict in this ease to be excessively munificent.

The judgment is affirmed.

KELLY, P. J., and SIMEONE, J., concur.

      . There was also medical testimony that the plaintiff has hearing problems in his right ear in higher sound frequencies, but he makes no claim that the problems with the right ear are related to the acoustical trauma.

      . Defendant’s objection to the use of Richardson’s deposition should have been on the ground that it was in violation of Rule 57.07(a), in that Richardson was not a designated party authorized to give a deposition. Although the motion for new trial sets forth Rule 57.07(a) as reason for not permitting use of Richardson’s deposition such objection should have been asserted at trial at the time the alleged error for the use of the deposition occurred.

      . Defendant infers that Richardson was only a “repeaterman” at the time of the accident. The record makes such contention chimerical, for it is clear from the record through defendant’s counsel’s direct examination of Richardson that he was wire chief at the time of the accident, and his “job was to supervise the installation and maintenance of the telephone system in Fredericktown for the outside and inside plant department.”

      . In addition to the testimony of the plaintiff and her sister describing the noise, there was evidence indicating that the noise had occurred. Both the plaintiffs and her sister’s phones went dead for several hours after the occurrence. The following day the plaintiff’s phone, which was about 30 years old, was removed and taken out of service. The earpiece of the plaintiff’s phone was cracked. Of course, in the instant case, there was no indication of damage to the receiver.

      . In Scott v. Diamond State Telephone Co., supra, the plaintiff, while on the telephone, was knocked off his feet by a loud explosive noise that came over the telephone. The plaintiff submitted his case on a res ipsa theory. The defendant introduced evidence tending to show that it was not negligent. The trial court, in this judge-tried case, entered judgment on the merits for the defendant, holding that the plaintiff had not established the defendant’s liability by the preponderance of the evidence. This ruling was affirmed on appeal. After noting that the doctrine of res ipsa loquitur permits but does not compel the trier of fact to draw an inference of negligence, the court reviewed the evidence supporting the findings and conclusions of the trial judge. The appellate court found that after balancing the inference created by the facts of the accident against the defendant’s evidence, the trial court could properly have concluded that the plaintiff failed to show the defendant’s liability by a preponderance of the evidence. It is important to note, however, that the court expressly stated that the case was properly submitted as a res ipsa loquitur case. Id., 239 A.2d at 705.

      . The court placed great weight on the defendant’s evidence that it had not produced the noise. The court also emphasized that the medical evidence produced at trial showed that the plaintiff suffered from hysteria and that the medical testimony was almost conclusive in showing that the complaints of the plaintiff arose from her physical condition as opposed to any injury received from use of the telephone.

      . The defendant also relies on Gallaher v. Waynesboro Mut. Telephone Co., 143 Va. 383, 130 S.E. 232 (1925), to support its position that the occurrence of an excessive noise through a telephone receiver is not such an occurrence as would happen only if those in charge failed to exercise due care. We do not believe that Gallaher supports the defendant’s position. In that case the plaintiff alleged that he was injured by a loud noise while using the telephone. The trial court sustained the defendant’s demurrer to the plaintiff’s evidence and this ruling was affirmed on appeal. From the evidence it appeared that the plaintiff resided in a rural area outside the city limits of Waynes-boro. The telephone lines outside the city limits were owned and controlled by the farmers living in the rural areas. The privately owned lines connected with the defendant’s at the city limits. The evidence also established that the sole cause of the noise was the close proximity of an electrical line to the telephone line out in the rural area and that the defendant had nothing to do with either of the two lines involved. The court found that res ipsa could not be applied because the defective instrumentality which caused the injury was neither managed, operated, owned nor controlled by the defendant. Id., at 233. The court also emphasized that the defendant had provided its customers with every known device designed to protect against dangerous currents of electricity and the state of the art was such that it was not possible to install any device that would eliminate excess noise. It should therefore be remembered that Gallaher was decided in 1925. Gallaher merely holds that the doctrine cannot be applied to the facts in that case because the instrumentalities that caused the injury were not in the control or management of the defendant (the second element of a prima facie res ipsa case). It does not hold that the occurrence of an excessive noise over telephone lines is such an occurrence that will not happen unless those in charge failed to exercise due care. Thus, Gallaher does not lend support to the defendant in its contention that negligence cannot be inferred from the fact that a person using a telephone experienced acoustical trauma.

      . The res ipsa loquitur doctrine was held to apply in each of the cited cases even though the plaintiff was not physically possessing or making use of the mechanical instrument involved. But the basic control of the mechanism remained in the defendant and was being used by plaintiff as intended.

      . The defendant relies on Katz v. New England Telephone & Telegraph Co., supra, to support its position that the control requirement of the res ipsa doctrine cannot be satisfied unless the plaintiff can show that the defendant controlled the source of the sound. Katz, which we have discussed in detail in the defendant’s second point on appeal, held that res ipsa doctrine could not be applied to that particular case because the evidence would not support the conclusion that an excessive noise occurred. The court went on to say in dicta, upon which the defendant relies, that even if it were to assume that an excessive noise had occurred, there was no evidence to place responsibility upon the defendant. The court noted that a party line was involved and the noise may have been created by someone leaving the receiver off the hook. It should be noted that the Katz case was decided in 1929 and that the court did not apparently impose upon the telephone company the duty to use the highest degree of care to prevent excessive noise from passing through their phone lines. As was said earlier, we believe that the rationale employed by the Texas court in Gandy v. Southwestern Bell is more in harmony with Missouri cases. In Gan-dy, a party line was also involved and there was some evidence indicating that a third party may have slammed down his receiver causing the noise in question. This did not prevent the plaintiff from making a submissible res ipsa case. The Court said: “From all of this testimony, the fact of a party line and even that a third party slammed down a receiver, does not excuse defendant from its duty to control excessive sound which its lines emit.” Id., 341 S.W.2d at 557.

      .Prosser, in discussing this element of the res ipsa doctrine says: “It is difficult to believe that this factor ever can be controlling, or more than at best a makeweight.” Prosser, Law of Torts, 4th ed. 1971 at 225.

      . It would appear that the plaintiff when modifying the first paragraph of MAI 31.02(2), substituted “telephone system” for the term “bus.” “Bus” as used in the model instruction is the specific instrumentality that caused the injury akin to the telephone receiver and protector systems involved in the case before us. Although the “telephone system” includes the specific telephone involved and its protective devices, the term is broader than that used to describe the instrumentality in the first paragraph of MAI 31.02(2).

      . If the plaintiff had not included an adjective to describe the noise in the verdict directing instruction, it would seem that the defendant would then be heard to complain that the instruction was defective for not describing the kind of noise produced. The defendant would argue that by not describing the noise, the jury would have been permitted to find the defendant liable if any degree of sound were produced. The defendant would not be negligent if the sound produced by the telephone were within ordinary limits, it would appear necessary for the plaintiff to describe the sound more specifically in his verdict director. We find that this was accomplished by inclusion of the word “loud.”

      . Of course, it is not essential for a plaintiff to prove permanent injury to recover for future damages. Future damages and permanent damages are not synonymous terms. Gaynor v. Horwitz, 464 S.W.2d 537 (Mo.App.1971).

      . Plaintiffs reference to defendant as “big insurance company” was held not to be prejudicial as a matter of law.

      . See Worley v. Tucker Nevils, Inc., 503 S.W.2d 417 (Mo. banc 1973) and Best v. Fred Weber Construction Co., 525 S.W.2d 102 (Mo.App.1975).


author: SWOFFORD, Judge.

text:
    STATE of Missouri, Respondent, v. Kenneth PETERSON, Appellant.
    No. KCD 28393.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1976.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

Appellant was convicted, after a jury trial, of assault with intent to kill with malice, Section 559.180 RSMo 1969, and sentenced to life imprisonment. He raises three points or assignments of error on this appeal. First, he asserts that the court erred in overruling his objection and motion for a mistrial when Detective James Theisen of the Kansas City, Missouri police department testified as to the lineup identification of the defendant by one Roberta Hodges, upon the basis that such evidence was hearsay, inadmissible and highly prejudicial. Second, he charges the trial court with error in failing to give his three requested instructions on the issue of defendant’s identification. Third, he claims that he had previously been placed in jeopardy on the charge for which he was convicted and the court’s action in failing to grant his motion to dismiss violated his rights under the Fifth Amendment.

A summary of the evidence and record, viewed in the light most favorable in support of the jury verdict, is necessary for the resolution of this appeal.

11th Street in Kansas City, Jackson County, Missouri is an east-west street, and Altman’s Jewelry Store (hereafter Altman’s) is located on the north side of 11th Street between Walnut Street to the east and Main Street to the west. On November 29, 1974, shortly before noon, a late model green Cadillac automobile was observed by two pedestrians, William Stein-man and Donald Calvert, who were walking south on Walnut. The Cadillac was stopped at the northwest corner of 11th and Walnut headed in a westerly direction, and the pedestrians testified they observed three Negro males get out of the car and walk west on the north side of 11th. The witnesses, who were together, crossed 11th and Walnut and walked west on 11th on the south side. Thus, they were proceeding in the same direction as the three Negroes on the opposite side of 11th and somewhat behind the three. The three men were observed going into Altman’s. When the witnesses came to a point across 11th Street from Altman’s, they observed the three men in the store and one of them holding a handgun pointed at a clerk behind the counter in the store. Both of the witnesses hurried into Harzfeld’s store, which has an entrance on the south side of 11th, approximately opposite Altman’s entrance. One of them, Steinman, proceeded to a telephone and called the police, while the other, Calvert, stationed himself at the entrance of Harz-feld’s where he could observe the Altman store. Thus, the robbery was reported to the police while it was still in progress.

Neither of these two witnesses could identify the defendant as one of the three men involved, and neither obtained the license number of the green Cadillac. The three men were in Altman’s about five minutes and then were observed by the witness at the door of Harzfeld’s to emerge and run west on 11th to Main Street, cross Main and enter the Main Street entrance of Macy’s. This store has an entrance on Main and also an entrance on Baltimore Avenue one block west of Main, so that a person entering Macy’s on Main can go through the second floor of the store and exit on Baltimore.

An employee of Macy’s, Harold Edwards, who was due to report on his job at noon, left a bus at 11th and Baltimore at about 11:50 a. m. on that day and observed a green Cadillac parked on the east side of Baltimore near the Macy’s entrance on that street. There was a black woman behind the wheel and he observed a black young man get in the car and two black men come out of Macy’s carrying a large paper bag and also get into the Cadillac. When this witness entered the store, he observed Macy’s security officer retrieve some rings from a trash receptacle. This witness could not identify this defendant as one of the men he observed getting into the green Cadillac.

State’s witness, Ronald V. Reine, was a pedestrian on Baltimore in the vicinity of 11th Street and testified that he observed a green Cadillac parked below Macy’s and occupied by three black males and a black female. Reine observed a police traffic officer park his motor scooter. He then observed the officer approach the Cadillac with his service revolver drawn. Someone in the automobile started firing and blasted the officer back against the building wall and then the Cadillac “took off”. Reine obtained the license number, which was Missouri XN 7303. He then ran to a business telephone and called the police. This witness could make no identification of defendant.

John M. Evans testified for the state. He was a northbound motorist on Baltimore. He observed the greed Cadillac stopped on the east side of Baltimore; he observed that it had four occupants; and, saw the police officer shot by the person in the left rear seat. Evans also obtained the license number, but could make no identification of the defendant. Frank Clark was in the same automobile as Evans, and observed and testified to the same events.

Ramen Kerfoot testified that on November 29, 1974, he was a member of the Kansas City, Missouri police department assigned to traffic control in the downtown area. At about noon on that day, he received a radio broadcast regarding the Altman holdup and a description of the green Cadillac, and information that it was in the vicinity of 10th and Baltimore. He operated his three-wheel motor scooter to that intersection and observed a green Cadillac. He parked his vehicle and approached the automobile, and one of the occupants fled. He ordered the other occupants out of the car, whereupon, two shots were fired at him from the back seat through the front window of the car, the second shot striking him in the chest. He was unable to identify the defendant as being in the Cadillac.

Detective James Dawson testified that he received the license number of the Cadillac from Ronald Reine at the scene of the shooting, and that Mo. XN 7303 was registered in the name of defendant, Kenneth Peterson. He interviewed the defendant at police headquarters later that evening. The defendant told the police officer that his Cadillac had been stolen from a service station where he had taken it that morning to have snow chains put on. When questioned about the shooting of Officer Ker-foot, the defendant became visibly upset, began perspiring, pounded the desk and said to Detective Dawson, “It’s all that crazy fucking nigger’s fault. He wasn’t supposed to shoot nobody. I told that crazy nigger.”; “That crazy nigger said he wasn’t going to get busted. He would shoot anybody”; and, after being permitted to use the telephone, he said, “I know where he’s at and he has some of the jewelry with him.” The defendant refused to give this party’s name, but did give Detective Dawson the “nicknames” of two parties that he said were involved. He sought immunity, without success, and refused to give a formal statement.

The defendant’s first point hinges upon the testimony of two of the state’s witnesses, Roberta Jean Hodges and Detective James Theisen.

Ms. Hodges testified that she was employed by Altman’s on November 29, 1974, and that at about noon on that day, three black men entered the store. One of these, she identified as the defendant. The defendant announced that “This is a holdup”. He had a weapon in his hand. At that time, she was seated at her desk adjacent to the diamond case about three feet away from the defendant. The defendant came around the ease “right in front” of the witness; broke the glass of the case with the barrel of the gun, and began to put diamonds or jewelry into an attache case; and, told the witness to put her head down. She stated that the three men were in the store “five minutes or more”. Later that day, she was shown a number of photographs at the police headquarters and identified a photograph of the defendant as the man with the gun.

On direct examination, she testified, without objection, that at the store, before she was shown the photographs at police .headquarters, she told a Detective Roberts that she thought the man with the gun was named Curtis Allen, who had been in the store sometime previously, with the defendant, to leave a watch for repair and whose name and address she had taken from Altman’s records. She later, however, positively identified the defendant from the police photographs, at a police lineup the following day, and made a positive, unequivocal, in-court identification of the defendant. She freely admitted in her testimony her initial mistake in names.

. Ms. Hodges was vigorously cross-examined as to her statement to Detective Roberts naming Curtis Allen, and repeatedly ■explained her mistake as to names. At the ■police station when she made the photographic identification of the defendant, she told the detectives of this initial mistake in names. She was shown a photograph of Curtis Allen at the police station and stated definitely that he was not involved in the robbery.

Detective James Theisen, one of the officers assigned to the Altman case, testified that he had interviewed Ms. Hodges, had shown her police photographs, and had thereafter issued a pickup for the defendant and had conducted a lineup the following morning. On cross-examination, Theisen stated that Ms. Hodges had stated she believed one of the men was named Curtis Allen, but she “at no time made a definite statement” to that effect. He was cross-examined at great length as to statements made by Ms. Hodges about Curtis Allen and the defendant. On recross-examination by defense counsel, the following occurred:

“q, * * * it’s true, is it not, Mrs. Hodges identified Mr. Curtis (sic) and said he was the man — her first impression was, he was the man that robbed the place?
A. She did not, no, sir.
Q. She didn’t tell you that?
A. She did not at no time say he was the man that held her up.”

On redirect examination by the prosecutor, the following occurred:

“Q. Detective Theisen, when Mrs. Hodges identified Defendant’s Exhibit No. 12 (police photograph of defendant), did she identify that man as being Allen Curtis (sic) or identify him as being the man who robbed the store?
A. She stated that is the man who robbed the store.
MR. HAGGERTY: (Prosecutor) All right. No further questions.
MR. HANDLEY: (Defense Counsel) I have no questions.”

The witness was then excused and the court declared a recess, and gave the jury the usual recess admonishment. Thereupon, defense counsel objected to the foregoing question and answer as violative of the hearsay rule under the “Degraffenreid Principle” (State v. Degraffenreid, Mo. banc 1972, 477 S.W.2d 57). The court overruled the objection as untimely made, coming after the question was asked and the answer given. Counsel also asked that the court declare a mistrial, which request was denied.

The defense offered the following evidence, pertinent to the issues here:

Curtis R. Allen stated he was a self-employed jewelry dealer; that he deals with Altman’s and that they have his name and home address; that he is not acquainted with the defendant; and, has never been in Altman’s in defendant’s company. Allen was in the vicinity of 10th and Baltimore in his automobile when Officer Kerfoot was shot. He heard the shot but did not observe any of the occurrences connected with the crime.

Edward Golden testified that he operated a Standard Oil service station at 3042 Benton Boulevard. He testified that about 11:00 a. m. on November 29, 1974, the defendant brought his green Cadillac automobile to the station to have snow chains put on. Two men were with the defendant. The defendant left the car outside the building and brought the keys to the witness, who requested that defendant leave the keys in the car. Later, the witness discovered that the Cadillac was gone. While he could not pinpoint the time of this discovery, it was before he could “get to” it in order to install the snow chains. Witness Golden did not observe the car taken and did not know the identity of the person who drove it away, but admitted such person could have been the defendant.

Quinlock Shobe, the former “girl friend” of the defendant, was offered as an alibi witness. She testified that around noon on November 29, 1974, she saw the defendant in a house in the vicinity of 39th and Olive with another woman.

The defendant, Kenneth Peterson, testified in his own defense. He admitted the ownership of the 1972 green Cadillac De-Ville Sedan here involved; that he took it to Golden’s service station at about 10:00-10:30 a. m. on November 29, 1974, and left it there to have snow chains installed; that he was then driven to 3928 Olive by an unknown man, who was at the service station, and saw Quinlock Shobe there about noon; that later, his grandmother told him on the telephone that there was a police pickup broadcast for him; and, that he went to police headquarters in the late afternoon in the company of his parole officer, where he was interrogated. He denied the statements attributed to him by Detective Dawson. He stated he did not know Curtis Allen, had never been in Altman’s, and denied his guilt and any connection with the Altman robbery or the shooting of Officer Kerfoot.

The defendant admitted a previous conviction in the Federal Court in 1967 for robbery of the Twin City Federal Savings & Loan Association of Kansas City, for which he received a sentence of fifteen years on a guilty plea and served five years and eight months, being released on parole September 18, 1972. He was still on parole November 29, 1974. He also admitted a previous conviction in 1963 for stealing from the person.

Assuming but not deciding, on the record in this appeal, that the question and answer of Detective Theisen on redirect examination, as above quoted, was inadmissible under the hearsay rule, on the authority of State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972), the trial court properly ruled the objection thereto to be untimely. It is axiomatic under the procedural law of this state that proper and timely objections to inadmissible evidence must be made and adversely ruled in order to preserve error. State v. Jackson, 500 S.W.2d 306, 314[15,16] (Mo.App.1973). Under ordinary circumstances, an objection not made until after an answer is given is not timely. State v. Phillips, 480 S.W.2d 836, 837[2] (Mo.1972); State v. Tibbs, 523 S.W.2d 108, 110[1] (Mo.App.1975).

A recognized exception to this rule occurs in a situation where the record shows that no opportunity was afforded the complaining party to voice an objection between the question and a responsive answer because the witness answered so quickly as to preclude the interjection of the objection or for some other reason apparent on the record. State v. Simmons, 500 S.W.2d 325, 328-329[2-6] (Mo.App.1973). When such a trial situation develops, the proper procedure is to voice the objection at the earliest possible opportunity and move to strike the answer. In the absence of such a motion to strike, the ruling of the trial court is not preserved for review. State v. Taylor, 408 S.W.2d 8, 11[8] (Mo.1966); State v. Velanti, 331 S.W.2d 542, 546-547[7] (Mo.1960).

This record is absolutely devoid of any indication of lack of opportunity for defense counsel to object to the question before Detective Theisen’s answer. To the contrary, after the answer was given, defense counsel stated he had no questions, the witness was excused, and the jury admonished and excused for a recess. Only then, did defense counsel voice his objection and move for a mistrial. No motion to strike the answer or request that the jury be instructed to disregard it was made. Upon this record, the objection was untimely and preserved nothing for appellate review. The defendant’s first point is ruled against him.

The defendant offered three instructions on the issue of burden of proof of identification, and assigns as error the court's refusal to give them.

These instructions were in the following form:

“INSTRUCTION NO. A
One of the most important issues in this case is the identification of Kenneth Peterson as the perpetrator of the crime. The state has the burden of proving identity beyond a reasonable doubt. If after examining the testimony, you have a reasonable doubt as to the accuracy of the identification you must find Kenneth Peterson not guilty.
INSTRUCTION NO. B
The jury must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him. If you are not convinced beyond a reasonable doubt that Kenneth Peterson was the person who committed the assault or that he acted with others in committing the assault, you must find the defendant not guilty.
INSTRUCTION NO. C
One of the most important issues in this case is the identification of Kenneth Peterson as the perpetrator of the crime. The burden of proof of the prosecutor extends to every element of the crime charged and this specifically includes the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of this crime for which he stands charged. If, after examining the testimony, you have a reasonable doubt as to the accuracy of the identification, you must find the defendant not guilty.”

In connection with these proffered instructions, it should be noted that they are not included in MAI-CR and their source is not delineated; they all cover the same theory of defense on burden of proof as to identification, and accordingly, at best, the defendant would be entitled to only one of them; and, they are strictly cautionary in nature. More importantly, however, they do not properly declare the law under the circumstances of this case. They are based upon the recurring hypothesis that, if the jury entertained a reasonable doubt as to the identification of defendant by Roberta Hodges, the jury was required to acquit. Thus, the instructions completely overlook the circumstantial fact that the defendant’s automobile was used in the Altman robbery and the shot constituting the assault upon Officer Kerfoot was fired by someone within the car. Further, they overlook the incriminating statements made by the defendant to Detective Dawson. In other words, if the jury did not believe the defendant’s alibi but accepted the fact of his ownership of the automobile and his incriminating statements, they were authorized to convict, although some reasonable doubts were entertained as to the accuracy of Roberta Hodges’ identification. The instructions, therefore, must be faulted as containing misdirection.

Decisive to the resolution of this point, however, is the fact that the jury was fully instructed on all elements of the offense charged in the state’s verdict director Instruction No. 8, and the burden of proof Instruction No. 4. In addition, the court gave Instruction No. 9, MAI-CR 3.02, as follows:

“If you do not find and believe from the evidence beyond a reasonable doubt that Kenneth Peterson was present at the scene and, either alone or acting in concert with others, assaulted Officer Ker-foot, then you must find the defendant not guilty.”

and Instruction No. 11, MAI-CR 3.20, as follows:

“One of the issues in this case is whether Kenneth Peterson was present at the time and place the offense is alleged to have been committed. On that issue, you are instructed as follows:
1) The state has the burden of proving beyond a reasonable doubt that Kenneth Peterson was present at the time and place the offense is alleged to have been committed.
2) If the evidence in this case leaves in your mind a reasonable doubt regarding Kenneth Peterson’s presence at the time and place the offense is alleged to have been committed, then you must find Kenneth Peterson not guilty.”

It is well-settled law in this state that when a court has fully and properly instructed on a subject, there is no error in refusing further instructions on the subject. State v. Taggert, 443 S.W.2d 168, 175-176[14] (Mo.1969), (identification instruction refused in a rape case); State v. Neal, 514 S.W.2d 544, 547-548[l, 2] (Mo. banc 1974), (instruction on burden of proof, presumption of innocence and reasonable doubt refused in burglary case); cases collected in 9A Mo. Dig. Criminal Law, Section 829(1).

This rule is thus stated in State v. Smith, 358 Mo. 1, 212 S.W.2d 787 (1948), a first degree robbery case where the matter of identification was the paramount issue. The defense was alibi. The trial court refused an instruction offered by the defendant which singled out the question of identification. In affirming a conviction on this point, the court said, 1. c. 789[3]:

“The main instruction required the jury to believe beyond a reasonable doubt that defendant committed the robbery. That was sufficient, and fully protected defendant on the issue of identification. Unless the jury believed beyond a reasonable doubt that the defendant was the person who committed the robbery it could not have found him guilty under that instruction. * * * ”

Even had defendant’s Instructions A, B and C in this case been properly drafted, they were cautionary in nature. The giving or refusal of cautionary instructions is always discretionary with the trial court, State v. Bibbs, 461 S.W.2d 755, 760[7] (Mo.1970). No abuse of this discretion in the refusal of Instructions A, B and C appears on this record. The defendant’s second point is ruled against him.

Before any evidence was introduced at the trial of this case, the defendant presented and argued to the court his motion to dismiss the charge of assault upon Officer Kerfoot. The basis for this motion was that the defendant had been tried in August, 1975 (a month before the present trial) under a separate indictment, charging him with first degree robbery arising from the robbery of Altman’s and he was found guilty of that charge. At that trial, the court admitted some evidence of the assault upon Officer Kerfoot and the defendant argued that the admission of such evidence placed him in jeopardy on the assault charge, and to permit the instant case to proceed, violated his constitutional rights under the Fifth Amendment. The court below overruled the motion to dismiss and such ruling is urged as error here under the defendant’s third point.

It should be noted that at the time the motion to dismiss was argued to the court below, the robbery conviction was pending on a motion for a new trial. The motion for a new trial was subsequently overruled and the defendant was sentenced by the court to fifty (50) years in the penitentiary. This conviction was appealed to this court and affirmed on November 4,1976, State of Missouri v. Kenneth S. Peterson, 543 S.W.2d 566. In that appeal, the sole point raised by the defendant was that the court erred “in admitting evidence of the assault of Officer Kerfoot” since such evidence “was proof of a separate and distinct crime.” This court in the opinion of November 4, 1976, adopted this analysis but held that the evidence of the assault was relevant to the issues presented on the robbery charge and was therefore admissible.

Since the charge of assault here involved was a separate and distinct crime from the robbery charge, the state had the right to seek separate indictments and conduct separate trials without exposing the defendant to double jeopardy.

In the case of State v. Cline, 477 S.W.2d 91, 94[3] (Mo.1972), the rule is thus stated:

“Before a defendant may successfully plead double jeopardy, he must show he was prosecuted for the same offense after prior acquittal, a second prosecution for the same offense after prior conviction for that offense, or multiple punishments.” (Emphasis added)

In State v. Glover, 500 S.W.2d 271, 273[3] (Mo.App.1973), it is stated:

“ * * * ‘The test is the identity of the “offenses”, offenses identical in law and in fact’. State v. Bowles, 360 S.W.2d 706, 707 (Mo.1962).” (Emphasis supplied)

The charges against the defendant do not in any particular meet these tests, and his third point is ruled against him.

The judgment is affirmed.

All concur.