author: GUNN, Judge.

text:
    John DEFFORD, Appellant, v. ZURHEIDE-HERMANN, INC., Respondent.
    No. 36881.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 16, 1976.
    Motion for Rehearing or Transfer Denied April 13, 1976.
    Application to Transfer Denied June 14, 1976.

      Roger M. Hibbits, Florissant, for appellant.
    Thomas, Busse, Goodwin, Cullen, Clooney & Ottsen, Donald H. Clooney, St. Louis, for respondent.
   GUNN, Judge.

Plaintiff-appellant John Defford appeals from a judgment of the trial court sustaining a motion to dismiss Defford’s five count petition requesting that a default judgment be set aside and for other relief. We affirm the trial court’s action.

In the tedious journey to the denouement of this case, we must briefly indite the past involutions of this terribly jaded litigation which lead to its present status. The germ root of this litigation was planted long ago — August 11,1967 — when Zurheide-Her-mann, Inc. (defendant-respondent here) filed suit for breach of contract against Defford and three corporations. Answers and a reply were filed on behalf of Defford and the other defendants. Many days and legal maneuverings passed, including the withdrawal of Defford’s attorneys on June 9, 1969. On July 19, 1969 Zurheide-Her-mann filed interrogatories to be answered by Defford with copies of the interrogatories served on Defford by registered mail. On August 27, 1969 Zurheide-Hermann filed a motion to compel Defford to answer the interrogatories with notice that the motion to compel answers was set for hearing on September 5, 1969. At the September 5 hearing, for which Defford did not appear, the trial court sustained the motion to compel answers and set September 20, 1969 as the date by which Defford was to answer the interrogatories with failure to do so to result in the striking of Defford’s pleadings. Defford was notified of the trial court’s action, and still nothing was forthcoming from him or any of the corporate defendants. On September 29, 1969 default and inquiry was granted to Zurheide-Hermann, and Defford’s and the other defendant’s pleadings were thrown out. On October 21, 1969 Zurheide-Hermann’s motion for default judgment was heard and granted with judgment entered against Defford and the other defendants for $31,350.57.

On September 28, 1972, nearly three years after the entry of the default judgment, Defford and the corporate defendants filed a joint motion to set aside the judgment. The allegation was made that the default judgment was defective for irregularities patent on the face of the record. Defford’s argument was that he was never in default; that the interrogatories and motion to compel answers were improperly mailed; and that inadequate notice was given of the hearing to compel answers or strike defendant’s pleadings. The trial court overruled Defford’s motion to set aside the default judgment, and the trial court’s ruling in that regard was appealed to the Missouri Supreme Court. On December 14, 1973, the Supreme Court in Zurheide-Hermann, Inc. v. London Square Development Corp., 504 S.W.2d 161 (Mo.1973), found that the default judgment was not defective and affirmed the trial court’s order overruling Defford’s motion to set aside the judgment. Specifically, the Supreme Court found that the written interrogatories, motions to compel answers and notices of hearing on the motion to strike pleadings were properly served. It was held that Defford was afforded adequate notice and opportunity to be heard. All of the foregoing brings us to the controversy confronting this court.

Having failed before the Supreme Court to have the default judgment set aside for errors patent on the pleadings, Defford, on August 9, 1974, as plaintiff to this case, filed a five count petition seeking: 1) to set aside the default judgment of October 21, 1969, by writ of coram nobis on the ground that Zurheide-Hermann had committed fraud in failing to carry out a settlement agreement; 2) that the judgment be set aside for fraud; 3) that judgment be entered in Defford’s favor on the alleged settlement; 4) that damages be awarded Def-ford by reason of Zurheide-Hermann’s malicious prosecution of the default judgment; 5) that garnishment and execution by Zu-rheide-Hermann on the default judgment be quashed. The basic thrust of Defford’s new suit is whether Zurheide-Hermann obtained the default judgment against Def-ford by fvaud. Going to the heart of Def-ford’s current action, which is the five count petition against Zurheide-Hermann, is Defford’s allegation that before the default was entered, the case had been settled as to him. According to Defford it was agreed that Zurheide-Hermann would dismiss the action against Defford and Project Development Leasing, Inc. and take a consent judgment against the other defendants. Supposedly, the settlement agreement that the action against Defford would be dropped took place while Defford was represented by counsel (prior to June 9, 1969, the date when Defford’s attorney withdrew). Thus, according to Defford, all the actions of Zurheide-Hermann in serving interrogatories, motions, notices and the taking of the default judgment during the months of August, September and October were contrary to an alleged agreement made sometime prior to June, 1969. Accordingly, Defford alleges the default was obtained by deceit and fraud.

Zurheide-Hermann as defendant in this action filed a motion to dismiss Defford’s petition, or in the alternative, to make it more definite. The trial court sustained Zurheide-Hermann’s motion to dismiss, and Defford’s motion to set aside the motion, or, in the alternative, motion for new trial was overruled.

Defford initially asserts that after the trial court had dismissed his petition, opportunity should have been given to him to amend his petition and present evidence to counter Zurheide-Hermann’s allegations in its motion to dismiss. Defford also eom-plains that the trial court failed to make written findings of fact or conclusions of law in support of its rulings. We forebear any discussion as to these assertions, for we find that the trial court was correct in dismissing Defford’s petition. For the reasons which follow, Defford failed to state a cause of action, and no further evidence or amendment of petition would enable him to do so.

The first issue, which we consider as raised by Defford is that the default judgment of October 21, 1969, should have been set aside in equity on the ground of fraud in the procurement. Defford contends that prior to the entry of the default judgment that a settlement had been reached between Zurheide-Hermann and him; that in view of the settlement, the default judgment was fraudulently obtained. We find that Defford’s action in this regard is barred by the doctrine of res judicata and by Defford’s own inaction.

At the outset of this proceeding, Zurheide-Hermann filed a motion to dismiss Defford’s petition, asserting as one of its grounds that the doctrine of res judicata proscribed Defford’s action. In support of the motion to dismiss, Zurheide-Hermann submitted an affidavit as to the facts and circumstances of the previous litigation involving Zurheide-Hermann’s default judgment against Defford with a copy of the Supreme Court’s opinion in Zurheide-Hermann, Inc. v. London Square Development Corp., supra (the default judgment appeal based on errors patent) and a copy of the transcript of proceedings in that case. The issue of res judicata was thus properly raised by Zurheide-Hermann in this case, although Defford contends that res judicata may not be raised in a motion to dismiss. As stated in State ex rel. United States Fidelity & Guaranty Co. v. Walsh, No. 36,-050 (Mo.App.St.L.Dist. Dec. 23, 1975):

“[R]es judicata may be raised by a ‘speaking motion to dismiss’ even though it is an affirmative defense under Rule 55.27 if it will dispose of an action groundless on the merits [cites omitted].”

A “speaking motion to dismiss” for failure to state a claim upon which relief can be granted, by referring to material not in the pleadings, such as a prior judgment, becomes in effect a motion for summary judgment. State ex rel. United States Fidelity & Guaranty Co. v. Walsh, supra; Rule 55.-27(a). The facts and circumstances contained in the Supreme Court’s decision in Zurheide-Hermann, Inc. v. London Square Development Corp., Inc., supra, and the accompanying affidavit and transcript of proceedings in the default judgment case establish that there is no genuine issue in this case as to any material fact. Therefore, Zurheide-Hermann is entitled to summary judgment as a matter of law. Kuhlman Plastics Co. v. Kansas City Power & Light Co., 400 S.W.2d 409 (Mo.1966). As shall be discussed hereinafter, the Supreme Court opinion in the default judgment case (Zurheide-Hermann, Inc. v. London Square Development Corp., supra) and the accompanying transcript show irrefutably that this action is interdicted by the doctrine of res judicata. It would therefore be unavailing to allow Defford additional time to submit evidence in opposition to Zurheide-Her-mann’s motion to dismiss or to allow him to amend his pleadings, and the trial court did not err in refusing to do so.

Defford contends that the doctrine of res judicata cannot apply because the parties to the default judgment proceeding and this case are not identical. Defford points to the initial suit where Zur-heide-Hermann sued Defford and certain other corporations as parties defendant while in this suit Defford has sued Zur-heide-Hermann, Inc. and three individual agents of Zurheide-Hermann, Inc. who were not parties to the original action. Defford’s position in this regard is untenable. It is true that parties to the former and subsequent actions must be the same. Plaza Express Co. v. Galloway, 365 Mo. 166, 280 S.W.2d 17 (banc 1955); Woodford v. Ill. Central Gulf RR Co., 518 S.W.2d 712 (Mo.App.1974). But that tenet is sufficiently met in this case. The fact is that the three individual agents of Zurheide-Hermann have no place in this suit to set aside a judgment in the prior suit to which they were not parties. The addition of the three individuals to this litigation does not affect the res judicata doctrine, “because one who has had his day in court may not reopen the identical issues by merely adding new parties who are unnecessary to the determination of those issues.” Reis v. La Presto, 324 S.W.2d 648, 653 (Mo.1959). The individual agents of Zurheide-Hermann, Inc. are not necessary to the determination of the issues here. Furthermore, the fact that all the parties to the former litigation (the corporate defendants in the default case against Defford, et alii) are not included here does not preclude the application of the res judi-cata doctrine to this case. In re Delany’s Estate, 258 S.W.2d 613 (Mo.1953).

We now reach the cynosure of this action — the basis of the application of res judicata to this case precluding Defford’s recovery. Recently, in Gerhardt v. Miller, 532 S.W.2d 852 (Mo.App.1975), Judge Weier, in noting the dual aspects of the doctrine of res judicata, spoke for the court as follows:

“A judgment on the same cause of action between the same parties may be raised as a bar to the prosecution of a second action upon the same cause of action as to any issue which was or might have been litigated in the first. This is known as estoppel by judgment. A prior judgment between the same parties may also be raised on a different subsequent cause of action as binding with regard to ultimate facts decided or issues passed upon in the prior action, and is conclusive upon the parties as to these facts actually decided and issues necessarily determined in rendering the judgment. This is called es-toppel by verdict, [cites omitted]”

Reviewing the circumstances of this case we find that Defford’s current action is barred to him by that aspect of res judicata known as estoppel by judgment. In the present litigation, Defford seeks to set aside the default judgment on the basis of fraud in the procurement by reason of duplicitous actions of Zurheide-Hermann. He argues that a settlement had been reached several months prior to the judgment, with the service of interrogatories, the motion to compel answers thereto and notice of hearing of default judgment intervening between the time of settlement and actual rendition of the default judgment. The Supreme Court has held that Defford was properly served and had adequate notice of the foregoing. We specifically find that Defford cannot now with merit charge that he was deceived in believing that the first case against him had been settled. The Supreme Court held that Defford had been properly served with the interrogatories and the motion to compel answers and had been given constitutionally adequate notice of the hearing. He cannot now, in this proceeding, be heard to say that he was deceived into believing that the case against him was being dismissed.

Since the former adjudication determined that Defford had timely and adequate notice of the judicial proceedings leading to the judgment, his allegations concerning the alleged settlement and fraud in the procurement must fail. An examination of default judgment cases involving fraudulent misrepresentations supports our conclusion. For example, in Reis v. La Presto, supra, a party attempted to have a default judgment set aside for fraud in the procurement, alleging that the default judgment was obtained while negotiations for settlement were in progress and with no notice to the defaulting party. The court found no such fraud in that case, and noted the following:

“False representations by a party to his adversary that he need not file any pleading while they negotiate for a settlement could support an action in equity to set aside a judgment obtained without notice and in violation of those representations. But, when no such representations were made either in fact or by implication, then it is the defendant’s responsibility to look after his litigation, and if he negligently fails to do so he is in no position to seek equitable relief from the courts. Mutual Casualty Co. of Missouri v. Sansone, Mo.App., 17 S.W.2d 558[2]. One who has been served personally with a summons must use diligence to prevent a default judgment against him, Duncan v. Gibson, 45 Mo. 352, and he has less excuse to cry fraud than one who has been served with substituted service or by publication.” [cites omitted; emphasis added] Reis v. La Presto, supra, at 654-655.

The alleged facts in our case are somewhat different, but the theory is the same. Even assuming, as we must, that a settlement was reached, Defford, who had been personally served at the beginning, received repeated notification from Zurheide-Her-mann’s attorney that it was proceeding to judgment. Defford had notice of the default judgment and the multiplicity of proceedings leading up to it. With all the warnings manifest, Defford was, or at least should have been, aware that no settlement of the first suit existed. The actions of Zurheide-Hermann of which Defford had notice certainly belie the continued existence of any settlement.

Clearly, the factual issues regarding whether Zurheide-Hermann had reneged on any purported settlement agreement and pursuing its case to judgment in derogation of such agreement was known to Defford at the time he took his appeal to the Supreme Court on the defense of errors patent on the record. The defense of fraud was palpably available and known to Defford at the time of the Supreme Court case. Or, at least, Defford should have known that the settlement had failed or in spite of the settlement Zurheide-Hermann proceeded to judgment against him. Defford has had his chance and missed it, for having had the opportunity to have brought the issue of fraud before the Supreme Court in Zurheide-Hermann, Inc. v. London Square Development Corp., supra, he is now too late and forbidden to relitigate the issue in a second proceeding. Defford could have raised the fraud issue at the time of his action before the Supreme Court, and by his failure to do so then he is precluded from doing so now. St. Bethel Missionary Baptist Church, Inc. v. St. Louis Builders, Inc., 388 S.W.2d 776 (Mo.1965). As said in Munday v. Thielecke, 483 S.W.2d 679, 681 (Mo.App.1972):

“Under what is called estoppel by judgment a final adjudication is conclusive in subsequent proceedings not only as to every issue of fact which was actually litigated, but also as to every issue of fact which might have been.”

Defford has been given his day in court. His fraud issue could have been but was not litigated in the previous action. He is now estopped to litigate it.

This case is to be distinguished from Esco Industries, Inc. v. Indian Creek Hills, Inc., 529 S.W.2d 672 (Mo.App.1975), and J. R. Watkins Co. v. Hubbard, 343 S.W.2d 189 (Mo.App.1961), and cases cited therein, holding as a nullity a default judgment obtained in derogation of an agreement. The basic defense in this case is that Def-ford should have been aware that no settlement was in effect, and he should have been circumspect of resulting consequences. While equity has jurisdiction to grant relief on the grounds of fraud in the procurement of a judgment, the complaining party must be free from fault, neglect or inattention to his case, Jones v. Jones, 254 S.W.2d 260 (Mo.App.1953), and prove that he exercised reasonable diligence or has a good excuse for the default. Human Development Corp. v. Wefel, 527 S.W.2d 652 (Mo.App.1975). Viewing Defford’s allegations most favorably to him, it is manifest that he was not free from fault or neglect and did not exercise reasonable diligence in view of the issues decided against him in the prior litigation.

Having thus disposed of the fraud in the procurement count for the reasons set forth, Defford’s application for writ of error coram nobis loses all vitality and we need not deal with it. The basis of Def-ford’s claim for relief by coram nobis was that Zurheide-Hermann had committed fraud in failing to carry out a settlement agreement. But we have already determined that the fraud issue was available to Defford at the time of his appeal in the first case, and coram nobis cannot breathe life into that issue now. A writ of error coram nobis does not lie if the fact now alleged as grounds for the writ was known to the complaining party at the time of the judgment, or might have been known by the exercise of reasonable diligence. As noted, Defford knew or should have known at the time of his first appeal of the facts upon which he now grounds his application for writ of error coram nobis. Schoenhals v. Pahler, 257 S.W.2d 662 (Mo.1953); Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132 (1952).

So, too, Defford’s counts seeking judgment, by collateral attack, on the settlement, malicious prosecution damages and relief from execution on the default judgment must fail. Since Defford has failed in his direct attack he is forbidden to make a collateral assault on the judgment. McMahon v. May Department Stores Co., 374 S.W.2d 82 (Mo.1963).

The order dismissing Defford’s petition is affirmed.

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

      . Zurheide-Hermann, Inc. initially filed suit against John Defford, individually, London Square Development Corporation, United States Construction and Development Corporation, and Lewis & Clark Towers, Inc. The suit was subsequently expanded to add Project Development and Leasing, Inc. and Lewis & Clark Management Co. as parties defendant.

      . The notices, motions, orders and judgments applied to the corporate defendants as well as to Defford.

      . Defford’s argument was also applicable to the corporate defendants in the default judgment.

      . The style of the suit as originally filed on August 11, 1967.

      . In Defford’s petition before this court he named three individuals as defendants in addition to Zurheide-Hermann, Inc., but in our treatment of the case we have, for the most part, referred to all defendants together, as “Zurheide-Hermann.”

      . The St. Bethel Missionary Baptist Church case involved the dismissal of a suit for fraud which could have been raised in previous litigation involving another matter.

      . Defford has here violated Rule 55.15 which provides “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” See also J. R. Watkins Co. v. Hubbard, supra. However, since Defford was not granted leave to amend his petition, we have given the broadest interpretation to his allegations of fraud and deceit. Still, the petition fails to state a cause of action upon which relief can be granted.


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Troy Atwater GORDON, a/k/a Troy A. Gordon, a/k/a Donald Lee Spicer, Defendant-Appellant.
    No. 36013.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 23, 1976.
    Motion for Transfer to Supreme Court Denied May 17, 1976.

      Richard E. Snider, Cape Girardeau, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, A. J. Seier, Pros. Atty., Cape Girardeau, for plaintiff-respondent.
   KELLY, Judge.

Troy Atwater Gordon, the appellant, was convicted after a trial by jury in the Circuit Court of Cape Girardeau County on a three count Second Amended Information wherein, after alleging that appellant had been previously convicted in the State of Arkansas for delivery of phenobarbital, a crime which if committed in the State of Missouri would be a felony, then alleged in Count I that on November 17, 1973, he distributed to Jo Ann Rose, a female under 21 years of age, a Schedule II Controlled Substance named Desoxyn, in Count II, that on the same day appellant distributed to Tammy Pobst a Schedule II Controlled Substance named Desoxyn, and in Count III that on the same day appellant distributed to Tammy Pobst a Schedule III Controlled Substance named Tuinol. The trial court, after an evidentiary hearing found that the appellant was subject to the provisions of the Second Offender Act, § 556.280 RSMo. 1969, V.A.M.S., and after denying appellant’s Motion for New Trial, sentenced him to serve a term of ten (10) years in the custody of the Missouri Department of Corrections on each Count, the sentence on each Count to be served concurrently with the sentence imposed on each of the other two counts. After a timely notice of appeal was filed, this appeal followed.

Appellant charges in the Points Relied On section of his brief that the trial court erred (1) in overruling his motion for directed verdict at the close of the State’s case because the State failed to prove that the controlled substances were distributed in violation of § 195.020 and/or 195.240 V.A. M.S., in that the evidence is that the appellant did not intend to surrender ownership or control of State Exhibits “A,” “B” and “C” and thus did not distribute said Exhibits; (2) in overruling his motion for a directed verdict as to two of the three Counts, because even if this court concludes that the evidence proved that the State Exhibits “A,” “B” and “C” were distributed, or that this is a possession case, then there can be only one distribution or possession; and (3) in punishing appellant in accordance with § 195.200.1(5) V.A.M.S. because punishment should have been in accordance with § 195.200.1(2) V.A.M.S. Respondent calls to the attention of this court that the error assigned by the appellant in his first point was not raised in either of his motions for judgment of acquittal nor in Ms motion for new trial and argues therefore that this first point was not preserved for review. We have examined appellant’s motion for judgment of acquittal filed at the close of all of the evidence in the cause as well as his Motion for New Trial and we have thereby discerned that of the three points appellant seeks to present to this court for review in the Points Relied On section of his brief, only paragraph 6 of his Motion for New Trial presents anything faintly resembling the points presented here. Paragraph 6 of appellant’s Motion for New Trial is:

“In failing to dismiss Count III at the request of the defendant for the reason that the evidence showed that if the acts complained of in Count III and Count II were in fact true, said acts constituted one offense only, in that all drugs which were distributed to the same person mentioned in Count II and Count III were distributed at the same time and in the same containers and such offenses, as set out in said counts were in fact one offense only, notwithstanding the fact that the drugs were of a different schedule.”

This allegation of trial court error, broadly construed, might be encompassed within the second point relied on as set out in appellant’s brief, but then only with reference to Counts II and III, those Counts wherein it is alleged that two separate Controlled Substances, to-wit: Desoxyn, a Schedule II substance, and Tuinol, a Schedule III substance, were distributed to Tammy Pobst on November 17, 1973.

Appellate courts, being courts of review, generally are precluded from affording review to trial court errors which have not in the first instance been presented to the trial court in a Motion for New Trial. In this State, with some few exceptions, points not presented to the trial court in a Motion for New Trial are not preserved for appellate review. Rule 27.20 V.A.M.R., State v. Meiers, 412 S.W.2d 478, 481[6] (Mo.1967). Allegations of error respecting the sufficiency of the information or indictment, verdict, judgment and sentence shall be considered upon an appeal although not raised in the trial court or preserved for review, but the court will consider no allegations of error asserted in the Motion for New Trial which are not briefed in the appellate court and allegations of error not briefed on appeal will be deemed waived or abandoned. Rule 28.02, V.A.M.R. By Rule 27.20(c) V.A.M.R. the trial court on Motion for New Trial, or the appellate court on appeal, may, when it deems that manifest injustice or miscarriage of justice has resulted therefrom, consider plain errors affecting substantial rights though not raised in the trial court or preserved for review, or defectively raised or preserved. This review is, however, purely discretionary.

Appellant’s Motion for New Trial is devoid of any reference to the first point presented in his Points Relied On section of the brief filed in this court. It has not, therefore, been preserved for review. However, even if it had been properly preserved for review we would hold that it is without merit, as we shall more fully explain after a statement of the facts viewed most favorably as supportive of the jury verdict.

On the morning of November 19, 1973, David Gaither, a deputy sheriff of Cape Girardeau County and an investigator in the office of the prosecuting attorney of the same county, went to the Sunny Hill Motel and Restaurant within the city of Cape Girardeau, at approximately 9:00 a. m. As he drove into the parking lot of the motel he observed appellant behind a blue Lincoln Continental motor vehicle with Arkansas license plates on it. He drove up to appellant and inquired concerning ownership of the auto and appellant told him that the car belonged to appellant’s father. Appellant was then asked who the license plates on the car belonged to and appellant said that he did not know, that they were on the car when his father bought it. When asked who he was, appellant identified himself by means of a driver’s license as Donald Lee Spicer. After the conversation between Mr. Gaither and the appellant concluded, the appellant walked due east across the parking lot to where three girls and two boys were standing, a distance of approximately 15 feet. As appellant traversed the parking lot lie had his hands in his pockets. Two of the girls toward whom appellant walked were Tammy Pobst and Jo Ann Rose and they were standing two and a half or three feet apart. The other girl and the two men present were about eight feet to the left of Ms. Pobst and Ms. Rose. Appellant walked directly to where Ms. Pobst and Ms. Rose were standing with his back towards Mr. Gaither and some other law enforcement officers who were there with him.

When appellant came up to Ms. Rose, she inquired if he had anything on him. He replied that he did, and she invited him to give whatever he had on him to her. Appellant then removed his right hand from his right coat pocket, removed two bottles therefrom and put them in the right pocket of Ms. Rose’s coat. Almost at the same instant appellant pulled his left hand out of his left coat pocket and in it he had a green looking bottle. He stuck this bottle into the right coat pocket of Ms. Pobst. Upon observing this, Mr. Gaither walked up to appellant, Ms. Rose and Ms. Pobst and placed them under arrest for investigation for burglary. He then took the three girls to the back of the car and asked them to dump everything out of their pockets. Another deputy, Earl Cheek, who was also present, searched the appellant. Ms. Rose removed from her coat pocket two bottles identified at trial as Exhibits “A” and “B”. After Ms. Rose removed the two bottles from her pocket Mr. Gaither placed her under arrest on suspicion of possession of narcotics and took her to the back of the patrol car, sat her down and called the juvenile authorities. In the meantime, the two other girls were emptying their pockets. After Mr. Gaither put Ms. Rose in the police car he returned to where the others were and observed the green bottle on the back of a green Cadillac parked there. This bottle was marked Exhibit “C.” All three bottles were conveyed to the L.E.A.C. Crime Laboratory at Southeast Missouri State University in Cap Girardeau where they were examined by a criminalist employed there. Exhibits “A” and “B” contained small yellow pills and Exhibit “C” contained nine different types of pills. After the conclusion of a battery of tests the criminalist concluded that Exhibits “A” and “B” contained Desoxyn and that the following pills were in Exhibit “C”: 56 yellow pills containing Desoxyn, 40 orange triangular pills containing Dexedrine, 10 tan and clear capsules containing Eskatrol Spansule, 1 pill — “C-4” containing Dexedrine Span-sule, 8 black and white pills containing Strasenbaugh Biphetamine 12½, “C-6”, a black capsule containing Strasenbaugh Biphetamine 20, “C-8,” a pill containing Tui-nal, and “C-9,” a pill, containing Preludin. According to the criminalist the pills found in Exhibits “A,” “B” and “C” contained Schedule II Controlled Substances and Exhibit “C” also contained a pill identified as “C-8” — Tuinal—a Schedule III Controlled Substance. On this evidence the jury found appellant guilty of all three counts of the Second Amended Information.

While we are reticent to review appellant’s first point, i. e. that the prosecution failed to prove that the controlled substances were “distributed” as that term is used in § 195.020 and/or § 195.240 V.A.M.S., because this point was not properly preserved for review and because we conclude that it is without merit and would, if properly raised, have been found to be so, we will, nevertheless, dispose of the point.

The thrust of appellant’s argument is that the word “distribute” as used in §§ 195.020 and/or 195.240 V.A.M.S., requires an intent to surrender the right, title or interest in the controlled substance on the part of the person transferring it from himself to another. He contends that the evidence in this record refutes any intention on his part to relinquish any right, title or interest he may have had in the controlled substances contained in the three bottles. Rather, he reasons, the evidence clearly proves that in passing the bottles and their contents to the two girls he did so with the intent to avoid being caught with them on his person.

The term “distribute” as used in § 195.020 V.A.M.S. is defined in Paragraph (12) of § 195.010 V.A.M.S. as “to deliver other than by administering or dispensing a controlled substance.” “Deliver” is defined in Paragraph (8) of § 195.010 V.A.M.S. as “the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.” “Transfer” is defined “to carry or take from one person to another” or “to move or send to a different location” or “to cause to pass from one person to another.” Merriam-Webster Third New International Dictionary. Appellant contends that the term “transfer” as used in Paragraph (8) defining “Delivery” is the term as defined in Webster’s Third New International Dictionary of the English Language, “la. The conveyance of right, title or interest in either real or personal property from one person to another by sale, gift or other process, b. The removal or acquisition of property by mere delivery with intent of the parties involved to transfer the title.” We are required by § 1.090 RSMo. 1969 to take words and phrases in their plain or ordinary and usual sense except, however, technical words and phrases having peculiar and appropriate meaning in law shall be understood according to their technical import. We reach the conclusion that the crime we are considering here is committed when one person divests himself of possession of a controlled substance by passing it from himself to another. And we further conclude that while the statute enumerates a number of different ways in which one may violate it, and some may even overlap, it is not an element of that manner of violation identified as “distribute” that there be a specific intent to convey any right, title or interest in the controlled substance transferred. The mere surrender of possession is sufficient.

Neither the appellant nor the respondent have cited any Missouri cases directly in point. Appellant cites Veitenheimer v. State, 501 P.2d 908 (Okl.Cr.1972), People v. Freeman, 41 A.D.2d 811, 342 N.Y.S.2d 396 (1973) and Wood v. Commonwealth, 214 Va. 97, 197 S.E.2d 200 (1973) but each of these cases is distinguishable and is not controlling here. The respondent cites Tipton v. State, 528 P.2d 1115 (Okl.Cr.1974) where the court rejected defendant’s contention that he was not guilty of unlawful distribution of a controlled substance when he accompanied an undercover agent to a source of supply and obtained an amount of heroin which he turned over to the agent. This decision was reached on the ground that the applicable statute defined “distribution” in essentially the same terms as the Missouri statute. The same court in Starks v. State, 523 P.2d 1108, 1110[2] (1974) held that the term “distribute” as used in a statute prohibiting the distribution of controlled substances means to deliver in any manner other than by administering or dispensing and encompasses the act of selling a controlled dangerous substance. The Oklahoma statute does not contain the word “sale” or “sell” whereas the Missouri statute does. § 195.020. A number of federal cases have construed the word “distribute” or “distribution” as those terms are used in the Comprehensive Drug Abuse and Control Act of 1970, 21 U.S.C.A. § 802[11], to include the mere “handing over” of a controlled substance to constitute a violation of that law proscribing the “distribution” of drugs. United States v. Pruitt, 487 F.2d 1241, 1245[4] (8th Cir. 1973); United States v. Pierce, 162 U.S.App.D.C. 170, 498 F.2d 712, 713[2] (1974). “Sale,” as that term is defined in the Missouri statute, includes “barter, exchange, or gift, or offer therefor,” § 195.010[30], and implies more than a mere transfer or delivery of possession. Were the term “distribute” to require the same elements as the term “sale” in the statute, it would at best be redundant. We have come to the conclusion that the General Assembly in adopting Ch. 195 intended to relieve the State of the burden of proving all of the elements of a sale in a case of “distribution” of a controlled substance in violation of the law and authorize a conviction upon the mere transfer from one person to another of a forbidden narcotic drug. We therefore find no merit to this point.

Appellant further contends that the State’s evidence itself negates any intent on his part to distribute these controlled substances. The foundation for this argument is that the reason he handed these drugs to Ms. Rose and Ms. Pobst was for the purpose of avoiding any difficulties with the police officers which would naturally ensue were the drugs found on his person or in his possession. This, he reasons, negates any intent to surrender ownership or control over the controlled substances and in the absence of such proof a violation was not proven. The State replies with the proposition that proof of intent to surrender ownership or control is not necessary to prove a violation of the statute and that the mere transfer of possession of a controlled substance alone comes within the term “deliver” as used in the statute.

To make a case of distribution of a controlled substance in violation of § 195.-020 the State had to prove: 1) distribution of the controlled substance to Ms. Rose and/or Ms. Pobst, 2) that Desoxyn is a controlled substance listed in one of the Schedules of § 195.017 of the Narcotic Drug Act, and in Count I, that Ms. Rose was under the age of 21 at the time of the distribution. State v. Platt, 525 S.W.2d 637, 639[1] (Mo.App.1975). § 195.020 does not by its terms require a finding of an intent to distribute; the words “willfully,” “intentionally,” or “knowingly” do not appear therein. As a general rule, however, a statute defining a crime is to be construed in the light of the common law and the existence of a criminal intent is to be regarded as essential, even when not in terms re-quuired and before a statute will be construed as to eliminate “intent” as an element of an offense, the legislative intent to do so must be clearly apparent. It has been held, however, that a criminal intent is not an element of the offense where the commission of an act is made a crime without any express reference to intent. Whether criminal intent is an element of a statutory crime depends on the intent of the legislature, and is a matter of statutory construction. State v. McLarty, 414 S.W.2d 315, 318 [1-4] (Mo.1967). The Supreme Court of Missouri has held that under the prior Uniform Narcotic Drug Act and §§ 195.020 and 195.240 that knowledge on the part of an accused that the item sold was a narcotic drug was not included as an element of the offense under either section of the statutes. State v. Page, 395 S.W.2d 146, 149[4, 5] (1965), State v. Napolis, 436 S.W.2d 645, 647[2, 3] (1969). In Page, l.c. 149, the court said: “We find it difficult to conceive of any offense which so adversely affects public welfare and interest as the wrongful sale of narcotic drugs. This unquestionably justifies a State, in the exercise of its police power, to prohibit all sales thereof, except as specifically authorized, and to place on all persons the responsibility to see that they do not sell narcotic drugs unlawfully.” This same language was approved in Napolis, l.c. 647, and immediately thereafter the court announced the holding of the case, to-wit: “We hold that the State has the same right, in the exercise of its police power, to prohibit possession, sale, distribution, or transfer of barbituates and stimulant drugs except as specifically authorized in the statute, and that it is not necessary that the legislature make knowledge or criminal intent an element of the offense. We find further that the language of § 195.240 indicates a legislative intent not to require such knowledge or criminal intent.” These cases are controlling here and are equally applicable to sections of the Narcotic Drug Act of 1971 enacted in lieu of the former Uniform Narcotic- Drug Act sections the court in Page and Napolis construed. We hold therefore that the appellant’s conviction is not unlawful by reason of the failure of the State to prove the intent he alludes to in his argument. The fallacy of this argument propounded by appellant in this court is that he mistakes motive for intent. As the Supreme Court of Missouri pointed out in State v. Logan, 344 Mo. 351, 126 S.W.2d 256, 260[13-15] (1939), “Intent and motive are not in law one and the same thing, although frequently so considered in the popular mind. . ‘Motive is the moving cause which induces action; it has to do wholly with desire. Intent is the purpose or design with which an act is done, and involves the will.’ ” Motive is an evidentiary fact — a circumstance for argument and the consideration of the jury. While it may have been appellant’s “motive” to avoid being apprehended with the drugs on his person, whether he possessed a criminal intent is wholly irrelevant and immaterial to the issues before this court as we have heretofore ruled. There can be no question, under the evidence in this case, that appellant intended to hand over the drugs to both Ms. Rose and Ms. Pobst and thereby surrender possession thereof. That was sufficient evidence, together with proof of the fact that the drugs were Schedule II drugs to support a conviction under § 195.020. The evidence to support the allegation in the Second Amended Information with respect to Ms. Rose’s minority was for the purpose of bringing into the case the penalty provisions of §§ 195.200.1(5) and 195.200.4, and this will be considered in disposing of appellant’s third and final point.

Appellant’s second point, reduced to its simplest terms, is that there was but a single offense committed under the facts of this case and the trial court should therefore have sustained his Motion for Judgment of Acquittal filed at the close of all of the evidence as to Counts II and III. He contends that the State has “carved out” of one transaction three separate crimes on the ground that the drugs were distributed to two different persons and for the further reason that the drugs allegedly distributed to Ms. Pobst were controlled substances categorized under two different Schedules of the law, § 195.017. The State responds and argues that appellant has not properly preserved this point for review because it was not raised during the course of the trial, and, even in his motion for new trial, when some reference is made to this issue, appellant confined this point to an allegation that Counts II and III constituted parts of the same offense. However, in the event this court should consider this point as plain error under Rule 27.20(c) V.A.M.R., the State argues that by reason of §§ 195.020 and 195.240, three separate offenses were committed. The State identifies the issues before the court with respect to this point as being twofold: 1) can a series of closely related acts constitute separate violations of the same statute for which separate convictions and sentences are returnable and 2) whether a single act can give rise to two separately punishable offenses, a violation of § 195.020 and a violation of § 195.240.

Absent a waiver a person cannot be tried and convicted for a crime which has several incidents included in it, and at the same time be tried for one of those incidents without being twice put in jeopardy for the same offense. The State cannot split a single crime and prosecute it in separate parts. State v. Parsons, 513 S.W.2d 430, 438[5, 6] (Mo.1974). The Fifth Amendment to the United States Constitution protects an accused against multiple punishments for a single offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). However, a person may by one act violate more than one statute or commit more than one offense for which prosecution for each offense is permissible. State v. Richardson, 460 S.W.2d 537, 539[1] (Mo. banc 1970). While the rules of law are clear, their application is oftimes fraught with difficulties.

From the record we discern that this appellant was charged in the magistrate court with “eight other similar charges” and he waived preliminary hearing on each of those charges. Only one charge — an Information charging that on the 19th day of November, 1973, this appellant did unlawfully deliver to Jo Ann Rose, a female under the age of 21, a Schedule II Controlled Substance known as Desoxyn— was filed in the circuit court. This charge was brought under § 195.020 and § 195.200, and was filed on December 11, 1973. On December 17, 1973, the appellant was arraigned, the Information was read to him and he entered a plea of not guilty. On January 14, 1974, appellant, through his counsel, filed a “Motion to Compel State to File Additional Charges and to Consolidate,” wherein he moved the court to order the State to file Informations for felonies on all charges in which he had waived preliminary hearing in the magistrate court or to dismiss those charges, and in the event that all of said charges were filed, that they be consolidated with the “existing case and tried together.” On January 15, 1974, an Amended Information charging appellant with these same offenses now before this court for review was filed and at a pre-trial hearing on January 21,1974, after the prosecuting attorney had stated to appellant’s counsel and the trial court that the three Counts contained in the Amended Information were all of the charges which would be filed against the appellant as a result of the occurrences of November 19, 1973, counsel for appellant made an oral motion to dismiss Count III of the Amended Information for the reason “it is not two separate offenses to deliver a group of controlled substances to one person on the same occasion.” A Second Amended Information charging the prior Arkansas felony conviction together with the three Counts charged in the Amended Information and now before this court for review, was filed over appellant’s objection and the trial court then reserved ruling on appellant’s motion to dismiss Count III. At no time was there a definitive ruling on this motion to dismiss other than the denial of same by the submission of Count III to the jury in Instruction No. 5 at the close of the evidence. We have previously set out the manner in which this alleged trial error was preserved in appellant’s Motion for New Trial. It is clear that appellant did not preserve for review in this court his present contentions that the trial court erred in denying his “motion for a directed verdict” as to two of the three counts prior to filing his brief in this court. His motion for judgment of acquittal filed at the close of all of the evidence was on two grounds: 1) the evidence of the State fails to establish facts sufficient to establish the guilt of the defendant beyond a reasonable doubt and 2) under the law and the evidence the State of Missouri has failed to show facts sufficient to submit the issue of the defendant’s guilt to the jury. Neither of these are the grounds presented here. We glean, from a reading of Point II of appellant’s brief and the argument in support thereof that the Point he is attempting to make is that there was only one distribution of Exhibits “A”, “B” and “C” and therefore the trial court erred in overruling “his motion for directed verdict” as to two of the three counts, i. e. Counts II and III. Inasmuch as the Point that Counts II and III were a single continuous transaction together with Count I was never presented to the trial court either (1) prior to trial, (2) during trial nor (3) in appellant’s Motion for New Trial, he has not preserved this alleged trial error for review. Rule 27.20 V.A.M.R., State v. Scott, 515 S.W.2d 524, 528[4] (Mo.1974); State v. Henderson, 510 S.W.2d 813, 821[12] (Mo.App.1974). Nevertheless we shall dispose of it.

This is, so far as we have been able to determine, the first time this issue has been presented to an appellate court of this State with respect to Ch. 195, the Drug Control Act, since its adoption in 1971. For that reason neither appellant nor the State have cited any Missouri cases on the Point but rather have applied general principles and cases from other jurisdictions. Appellant relies on Braden v. United States, 270 F. 441 (8th Cir. 1920), Parmagini v. United States, 42 F.2d 721 (9th Cir. 1930), State v. Butler, 112 N.J.Super. 305, 271 A.2d 17 (1970), Jones v. State, 482 S.W.2d 194 (Tex.Cr.App.1972), Wells v. State, 517 S.W.2d 755 (Tenn.1974), and Ellis v. State, 502 S.W.2d 146 (Tex.Cr.App.1973). The State, on the other hand, contends that the holdings in Braden and Parmagini are of doubtful validity in view of the rule announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 306 (1931), and Normandale v. United States, 201 F.2d 463 (5th Cir. 1953). Each party cites other cases which do not consider this issue in the context of a violation of a narcotics law. The authorities cited by appellant stand for the legal principle that where there is but a single transaction, e. g. the sale of two different drugs, at one and the same time to a single individual there is but one offense, and where a defendant is charged in a multi-count indictment for the sale of the one drug, and then in a second count for the sale of the other drug, convicted on both counts and sentenced thereon, the conviction on one of the two counts must be set aside. Those authorities cited by the State, on the other hand, stand for the principle of law that there where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each charge requires proof of an additional fact which the other does not.

The State would distinguish Braden and Parmagini on the grounds that the statutes in those cases — the Harrison Narcotic Act in Braden and both the Harrison Narcotic Act and Jones-Miller Act in Parmagini-did not distinguish between the two types of drugs involved in those cases. The drugs in Braden, which were found in defendant’s apartmeht at the time of a search, were morphine sulfate, cocaine, heroin and opium. All, except cocaine are derivatives of opium. The drugs in Parmagini, which were morphine and crude opium, were seized in a single sales transaction of five ounces of the morphine. However, at the time the morphine was delivered an ounce of crude opium adhered to the bottom of the container in which the morphine was delivered. It is the State’s position that in this case the appellant violated both § 195.020 and § 195.240 when he distributed Schedule II drugs in violation of the former and a Schedule III drug in violation of the latter; that with respect to Count I and Count II identical evidence would not have been sufficient for the State to prove its charges against appellant because on Count I the jury had to find that appellant distributed a Schedule II substance to Ms. Rose, whereas on Count II the jury had to find that appellant distributed a Schedule II substance to Ms. Pobst. As we construe this argument, the State contends the distribution of the drugs to the two girls, although almost simultaneous, actually constituted two separate transactions and with this we agree. We therefore hold that the trial court did not err in denying appellant’s motion to dismiss Counts II and III on the basis that they constituted a single offense with Count I.

The issue remains however, whether Count II and Count III “carved” two offenses out of one. Both appellant and the State have prosecuted this appeal on the basis that violations of § 195.020 constitute one offense under Ch. 195 and of § 195.240 another. This is the way the case was tried in the trial court and the theory on which it is submitted here. Appellant’s position on this issue is the same as it was with respect to his attack on the conviction for Counts I and II. The State argues that the test for determining whether a closely related series of acts can give rise to more than one offense is whether identical evidence is required to sustain each offense. From this premise, the State proceeds to the proposition that appellant was charged in Count II with distributing a Schedule II substance to Ms. Pobst, in violation of § 195.020, whereas in Count III appellant was charged with distributing a Schedule III substance to Ms. Pobst, in violation of § 195.240. Different facts were necessary to sustain convictions on each count because as to Count II the jury had to find that appellant distributed a Schedule II substance to Ms. Pobst, but on Count III the jury had to find that appellant distributed a Schedule III substance to Ms. Pobst, the State maintains. It is clear from the evidence in this case that the only fact which the State would have to establish in Count II which would be any different than the facts to be established in Count III is the nature of the controlled substance passed to Ms. Pobst. In Count II the State, in accordance with its pleadings, had the burden of proving that the controlled substance distributed to Ms. Pobst was Desoxyn, a Schedule II controlled substance. In Count III, that it was Tuinal, a Schedule III controlled substance. Every other fact which would prove Count II would also prove Count III. If, as the parties agree, § 195.-020 defines one offense, and § 195.240 defines another and separate offense under Ch. 195, then it is clear under the “identical evidence test” the appellant could properly be charged with two separate offenses arising out of the single transaction. The courts of the State of California are committed to this position even in those cases where the drugs were chemically of more than one kind, even though of the same legal classification. People v. Mason, 276 Cal.App.2d 386, 81 Cal.Rptr. 195, 197[5] (1969) involved the furnishing of seconal and benzedrine to a minor in one package, and the conviction and sentencing of defendant for two distinct violations of the Business and Professions Code, Section 4234, were upheld against his contention that he was guilty of only one offense in selling a single package containing the two drugs to the minor. There is also support for this result if § 195.240 is viewed as a special statute applicable only to Schedules III, IV and V controlled substances whereas § 195.020 is viewed as the statute applicable to Schedules I and II controlled substances. While the General Assembly could have enacted a single statutory provision making it unlawful to distribute any controlled substance and thereby create but one offense with the range of punishment or penalty dependent upon the dangerous nature of the different scheduled drugs involved, it obviously did not. This is what the General Assembly did in enacting the Stealing statute, §§ 560.156 and 560.161 V.A.M.S. Rather, by Laws of Mo.1971, p. 237, H.B. 69 Sec. A, it enacted § 195.020 making it unlawful for “any person to . . . distribute . any controlled substance” except as authorized by other sections of the Act. Punishment for violations of this section with respect to Schedule I and II controlled substances is set out in § 195.200. In the same Bill the former law, § 195.240, was repealed and reenacted by removing from the former statute the introductory phrase, “The possession, sale, distribution or transfer of any drug which is designated by the division of health to be a barbituate, stimulant, or hallucinogenic drug” and inserting in lieu thereof the following: “The possession, sale, distribution, or transfer of any controlled substance listed in Schedules III, IV, or V . . . .” Punishment for any violation of § 195.240 was set out in § 195.-270. This we conclude is evidence that it was the intent of the General Assembly in adopting H.B. 69 Sec. A to establish two different offenses and for that reason we find no merit to appellant’s contention that the trial court erred in denying his motion to dismiss Count III. We rule this Point against appellant.

Appellant’s third and final point is that he was sentenced under the wrong paragraph of § 195.200.1. The trial judge imposed sentence on Counts I and II of the Second Amended Information under § 195.-200.1(5). Appellant contends here that he should have been sentenced under § 195.-200.1(2). The obvious reason for this contention is that the minimum sentence permissible under § 195.200.1(2) is 5 years whereas the minimum under § 195.200.1(5) is 10 years. The thrust of appellant’s argument in support of this point is that there is no punishment specified for “distributing” a Schedule I or II controlled substance provided for in that sub-division of the law; but, rather, the provisions of sub-division (2) of § 195.200.1 for a sentence for a second offense other than selling, giving or delivering of any Schedule I or Schedule II drug are therefore applicable, and is the sub-division under which his sentences should have been imposed. Here again the State calls to our attention that appellant has not preserved this point for review in this court inasmuch as he did not raise it at trial nor in his motion for new trial. We agree. However, there is no merit to his contention and we so hold. The word “distribute” is defined in § 195.010(12) to mean “to deliver other than by administering or dispensing a controlled substance.” “Deliver” is defined in subsection (8) to mean “the actual, constructive, or attempted transfer from one person to- another of a controlled substance, whether or not there is an agency relationship.” It is apparent that the two terms refer to the same basic activity, i. e. a transfer from one person to another, whether there is an agency relationship, and for the purposes of § 195.200.1 (5) the term “deliver” includes the term “distribute.” See State v. Rollins, 449 S.W.2d 585 (Mo.1970).

We have reviewed those parts of the record required by Rule 28.02 and find no error.

Having disposed of the appellant’s contentions of trial error, the judgment is affirmed.

CLEMENS, P. J., and STEWART, J., concur.

      . All references to Chapter 195 R.S.Mo.Supp. 1973, the Narcotic Drug Act, are to those sections as they existed at the time this cause was tried, i. e. January 22, 1974, except as otherwise noted.

      . The Narcotic Drug Act, Chapter 195 RSMo. 1971, is closely modeled after the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A. § 801 et seq. For the legislative history and purpose of Pub.L. 91-513, see: 1970 U.S.Code Cong.and Adm.News, p. 4566. Its history indicates the Act’s broad scope in application — a breadth needed to combat the growing menace of the illicit drug traffic that has filtered into all strata of society, especially the young. The intent of the Act, in mounting a frontal assault on all aspects of the drug problem, is the basis for the broad definition and application of the terms of the Act.
      The “agency relationship” mentioned in the definition of “Deliver” in Paragraph (8) of § 195.010 V.A.M.S. is directed to the elimination of the “procuring agent” defense.

      . See: Anno. Construction and effect of “sale” A.L.R.2d 1008. or “sell” in Uniform Narcotic Drug Act, 93'

      . Other California cases following this rule are: People v. Mandell, 90 Cal.App.2d 93, 98, 202 P.2d 348 (1949)-one box containing cocaine, opium and morphine held to support three separate counts; People v. Lopez, 169 Cal.App.2d 344, 351, 337 P.2d 570-possession of heroin, marijuana and amidone supported three counts; People v. Lockwood, 253 Cal.App.2d 75, 82, 61 Cal.Rptr. 131-possession of codeine and opium supported two counts; People v. Seaberry, 260 Cal.App.2d 507, 510, 67 Cal.Rptr. 182 (1968)-possession of seconal and benzedrine supported two counts; People v. Schroeder, 264 Cal.App.2d 217, 227, 70 Cal.Rptr. 491 (1968)-possession of opium and morphine supported two counts.

      . This case was tried January 22, 1974, prior to the amendments of § 195.200 by Laws of Mo.1975, p. -, H.B.No.150 sec. 1.


author: HIGGINS, Special Judge.

text:
    Roger Dale CHAUSSARD and Judy A. Chaussard, Respondents, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, a corporation, Appellant.
    No. 26862.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    Motion for Rehearing and/or Transfer Denied May 3, 1976.
    Application to Transfer Denied June 14, 1976.

      Robert D. Youle, William C. Hopkins II, Kansas City (Lathrop, Koontz, Righter, Cla-gett, Parker & Norquist, Kansas City, of counsel), for appellant.
    Michael J. Albano, Graham, Paden, Welch, Martin & Tittle, Independence, for respondents.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   HIGGINS, Special Judge.

Appeal from verdicts and judgments of $100,000 for Roger Chaussard for personal injuries and of $25,000 for Judy Chaussard for loss of consortium. The questions are whether the court erred: in admitting Roger’s testimony and plaintiffs’ exhibits on his future wage loss; in excluding defendant’s exhibits on Roger’s prospects for future gainful employment; in admitting testimony and an exhibit showing medical and hospital bills paid by Roger’s employer for his medical care; and in giving Instructions 7 and 8 on plaintiffs’ damages. Affirmed.

Appellant !‘make[s] no point upon this appeal that plaintiffs failed to make a sub-missible case.”

The injury occurred January 7, 1971, at about 10:15 p. m., when Roger Dale Chaus-sard, operating a fork lift or tow-motor power vehicle, was upon and unloading logs from a railroad flatcar spotted at the roofing plant of his employer, GAF Corporation. Kansas City Southern Railway was then engaged in switching at the GAF plant, and was shoving several ears in front of an engine toward the dead end of the siding track. The flatcar upon which Roger was working was located with its north end about six feet from the bumping post at the end of the siding. Several coupled cars were to the south of the flatcar, and another car was situated to the south of them. This separate car was empty and waiting to be pulled. The string of cars coupled to the engine was shoved against it; the intended coupling failed, and the car rolled to the north and bumped the coupled cars. The flatcar upon which Roger was working was moved between three and fifteen feet according to various estimates. Roger had just placed his fork lift under a load of wood. He flew back against the seat on impact. The flatcar was driven forward into the stopper post and he hit his head on the hoist of his fork lift. The latter action drove the flatcar back again. Roger climbed down from the fork lift and leaned against a bale of paper to avoid falling. When able, he walked to the office and reported the accident. He then left the plant and drove to the Independence Sanitarium and Hospital, stopping once on the way due to pain and illness.

On October 29, 1964, Roger was injured in an explosion of a tar vat at GAF which caused severe burns over much of his head, neck, shoulders, and arms. At the time of injury he also fell a distance of six feet from a ladder or platform. He was hospitalized from time to time during the next five months for treatment of his burns. He suffered also from a severe and chronic back sprain. He was off work for a year, and was rated by Dr. H. B. Overesch to have fifteen per cent permanent disability of the body as a whole. He continued to have discomfort in his back if he worked two consecutive shifts.

On May 15, 1967, Roger was in an automobile accident and suffered a ruptured disc at LA-5 (right) for which he was operated. He was hospitalized from June 26 to July 11, 1967, was off work for four months, and missed some work during the following year. After returning to work he continued to have some back pain but became progressively better.

In April, 1968, Roger received an injury at GAF which resulted in a back sprain and stiff and aching right leg. He did not lose much work time from this injury but wore a back support and shoe lift temporarily.

About November 29, 1970, Roger took a fall from a motorcycle after which he suffered from headaches for which he was hospitalized from December 8 to December 15, 1970. He was then off work for two weeks and, upon his return to work, experienced no physical problems as a result of the fall.

From some time in 1969 until the accident of January 7, 1971, Roger performed heavy physical labor, missed no work due to back problems, and was relatively pain free.

Following the occurrence of January 7, 1971, Roger was examined at the Independence Sanitarium and was given medication for pain. He was hospitalized at St. Joseph’s Hospital from January 9 through January 23, 1971. He was again hospitalized from February 17 through February 27,1971, with diagnosis of and operation for disc extrusion at LA-5 (left). He had a normal recovery. Due to financial pressures he returned to work in June, 1971, and performed a job which was not heavy work as he had done previously. He was unable to perform some duties, could not accept overtime, and changed to a less strenuous job. His back continued to bother him.

On November 22, 1971, at GAF, Roger lifted a butane tank and felt sudden back pain. He was hospitalized at St. Joseph’s Hospital from November 23 through December 10, 1971, from January 16 through January 20, 1972, and from February 15 through February 26, 1972. On December 2, 1971, he had a third disc operation at L4-5, including a spinal fusion at that site. He progressed well for several weeks, after which there were persistent medical problems and complaints; body jackets were applied on two occasions. He continued to time of trial with complaints, including constant pain for which drugs were taken to the extent of addiction. He did not return to work at GAF.

Dr. Campbell C. McCullough, Jr., an orthopedic specialist, performed the three operations on Roger’s back at L4-5. In his opinion, Roger’s injuries from the January 7,1971, KGS switching operation contributed to cause the injury of November 22, 1971, and the problems subsequent to that injury; the November, 1971, injury was “the straw that broke the camel’s back.” Dr. Arnold Schoolman, a neurosurgeon who examined and tested Roger following his January, 1971, injury, expressed the same opinion, and both doctors were of the opinion that Roger was totally and permanently disabled from heavy, physical work.

Roger had an interest in motorcycles, hunting, and fishing. Since his injuries, he has ridden on but one occasion in the block near his home. He has gone hunting rarely and has found it necessary to limit his walking. He has tried bicycle riding and swimming as prescribed therapy during which he continues to experience pain.

Judy Chaussard described her husband’s back problems, saying he could no longer lift a sack of groceries, move furniture, or mow the lawn. These limitations were confirmed by two neighbors.

Henry Smith, personnel director at GAF, testified to Roger’s work, earnings, and loss of time from the January accident, and identified Exhibits P-32 and P-34, payroll records showing such matters. He also identified P-31 as a file of bills for hospital care and doctors’ services for Roger from January, 1971, forward, which, according to Ann Trantham, totaled $7,887.17. Such testimony and Exhibit P-31 were received over defendant’s objection.

Roger Dale Chaussard testified to his loss of earnings and identified Exhibits P-23 and P-24 which illustrated his future wage loss calculation as a result of the accident of $264,914.40. Such testimony and Exhibits P-23 and P-24 were received over defendant’s objection.

Roger had an interest in learning a home entertainment system trade. He completed half of a 52-week course in 1969 and 1970 at the Electronics Institute. He attended the same trade school from October, 1972, to time of trial, and would graduate in July, 1973, if he completed the course. His grades ranged from A’s to C’s. He knew the school had placed some of its graduates, but was not at all confident he could find a job in this trade. Glenn Farmer of the Institute testified to Roger’s former and current stint as a student at the Institute. He identified Exhibits D-20 and D-21, records of the Institute, and offered in connection with them to testify with respect to Roger’s prospects for employment in the field of electronics. Such testimony and exhibits were refused upon plaintiffs’ objection that the exhibits were immaterial and irrelevant and that the testimony was speculative.

Dr. William Medlicott, an orthopedic surgeon, examined Roger on behalf of defendant, gave his findings, and expressed his opinion that Roger could return to his work at GAF.

Plaintiffs’ damages were submitted by:

“INSTRUCTION NO. 7:
“If you find the issues in favor of plaintiff, Roger Chaussard, then you must award the plaintiff such sum as you believe will fairly and justly compensate such plaintiff for any damages you believe he sustained and is reasonably certain to sustain in the future as a direct result of the occurrence of January 7, 1971, and such damages as you believe he sustained in the occurrence of November 22, 1971, if you believe such injuries were either caused or contributed to by the injuries sustained in the occurrence of January 7, 1971.”
“INSTRUCTION NO. 8:
“If you find the issues in favor of plaintiff, Judy Chaussard, then you must award her such sum as you believe will fairly and justly compensate her for any damages you believe she sustained as a direct result of the injuries sustained by Roger Chaussard in the occurrence of January 7, 1971, and such damage as you believe she will sustain for the injuries to plaintiff Roger Chaussard in the occurrence of November 22, 1971, if you believe such injuries were either caused or contributed to by the injuries sustained in the occurrence of January 7, 1971.”

Appellant contends (IA) that the court erred in admitting Roger’s testimony and Exhibits P-23 and P-24 on his gross future wage loss of $264,914.90, resulting from multiplying his average net earnings for the three years prior to the accident of January 7, 1971, by 39 years, the difference between his age, 26, and GAF’s mandatory retirement age of 65. Appellant argues (1) that such evidence was necessarily predicated upon total permanent disability which is contrary to the evidence, asserting (a) that the medical and other evidence does not support complete and permanent disability, and (b) that the evidence proves plaintiff was near completion of training for an occupation in which he could physically engage. Appellant asserts (2) that such evidence was erroneous and prejudicial in that it was not reduced to present value and did not take into account the earning power of money as a basis for determining compensation damages, asserting (a) that under Missouri law only compensatory damages directly and proximately resulting from an injury are to be awarded, (b) that earning power of money must be considered so a future wage loss claim must be reduced to present value, (c) that prior to MAI, defendant would have been entitled to a limiting “present value” instruction on damages, and (d) that under MAI, evidence to be admissible must reflect present value of claimed future wage loss.

Although Dr. Medlicott’s opinion was to the contrary, the opinions of Drs. Schoolman and McCullough furnished evidence that Roger Dale Chaussard was totally and permanently disabled from engaging in the future in his work at GAF. Evidence showing his engagement in bicycle riding, swimming, and walking showed also that he did so with difficulty and as therapy pursuant to his doctors’ instructions. The evidence shows also that he is not able to perform normal activities around his home and has been in continual pain to the extent of addiction to the drugs he takes to relieve his pain. Such evidence justified inclusion of the element of permanency of the injuries to plaintiff as a foundation for the receipt of plaintiff’s evidence of his future wage loss. Settell v. Horgan, 362 S.W.2d 769 (Mo.App.1962).

Nor does Roger’s attendance at the Electronics Institute show him to be employable in such a trade. His schooling had not yet been completed and it had not produced any confidence in him that he could become gainfully employed in electronics. The evidence shows him to be disabled for any job requiring lifting or cramped positions, and defendant failed to show any evidence of his physical ability to engage in electronics repairing.

It is true as appellant asserts (I2a) that only compensatory damages can be awarded in Missouri. Reference to Instructions 7 and 8 shows that the jury was instructed according to this proposition in that the jury was to award “such sum as you believe will fairly and justly compensate such plaintiff * * * as a direct result of the occurrence of January 7, 1971,” as prescribed by MAI 4.01.

It is not necessary to deal with appellant’s thesis in (I2bd) that Roger had some duty by computation, instruction, or otherwise, to reduce his future wage loss claim to present value and failed to do so, see e. g., Coffman v. St. Louis-San Francisco Ry. Co., 378 S.W.2d 583 (Mo.1964), other than to observe that the jury in its wisdom took care of any such problem in this case when it determined Roger’s damages in a sum unrelated to his future wage loss calculations. See discussion in Beaulieu v. Elliott, 434 P.2d 665 (Alaska 1967).

In answer to appellant’s argument (I2c), suffice to say that if its authorities, Moran v. Atchison, T. & S. F. Ry. Co., 330 Mo. 278, 48 S.W.2d 881 (banc 1932), and Beanland v. Chicago, Rock Island & Pacific R. Co., 480 F.2d 109 (8 Cir. 1973), entitled it to a limiting “present value” instruction, error, if any, was appellant’s own in its failure to draft and request such an instruction. 2 MAI LXII; Turner v. Cowart, 450 S.W.2d 441 (Mo.1969); Moran v. Atchison, T. & S. F. Ry. Co., supra.

Appellant contends (IB) that the court erred in excluding Exhibits D-20 and D-21 and evidence by Mr. Farmer proffered to show that Roger Dale Chaussard would shortly complete a trade school for an occupation in which he physically could and intended to engage, and the prospects of his employment and earnings in such occupation.

Appellant argues that Exhibits D-20 and D-21 were relevant to show Roger’s excellent grades and reason for interruption of school at the Electronics Institute as of February 20, 1970, and that testimony offered through Mr. Farmer was proper as against an objection it was speculative on whether Roger could obtain employment in electronics if he completed his course.

Exhibit D-20 showed Roger’s attendance at the Electronics Institute from September 12, 1969, through March 15, 1970, in a course differing from the course he was taking at time of trial, together with his lesson grades which ranged from A plus to C minus and two examination grades of C minus. Exhibit D-31 was an “interruption Check-off Sheet” of the Electronics Institute, dated March 20,1970, showing Roger’s last date in attendance as February 20, 1970, and the reasons for interruption as “back trouble” and “financial.”

Such information was not relevant to the occurrence and injury of January 7, 1971, which precipitated this trial, and it was remote from any indication of employa-bility. Its exclusion was within the discretion accorded the court in receipt of evidence. Bine v. Sterling Drug, Inc., 422 S.W.2d 623, 631 (Mo.1968).

Such information was also cumulative because the jury had been apprised of Roger’s record of good grades at the institute and his prior back problems. In such situation, error, if any, in exclusion of the information, was harmless. Potter v. Milbank Mfg. Co., 489 S.W.2d 197, 206 (Mo.1972).

The excluded testimony of Mr. Farmer, as described by appellant, included: many of the school’s students were physically handicapped and came from Vocational Rehabilitation; about 95% of its graduates found employment with average earnings from $7,400 to $8,000 with potential earnings up to $12,000 to $15,000 in five years; numerous local employers and available jobs awaited school graduates.

Immediately prior to this excluded offer, Mr. Farmer, upon qualifying questions, admitted that the Institute did not guarantee a job to its graduates or to Roger Dale Chaussard. In a similar vein, it could not be shown that Roger would graduate from the Institute despite his interest and good grades; and this is particularly true in Roger’s situation because he had already experienced interruption due to his physical problems. Accordingly, both the future job and earnings, in these circumstances, were speculative, and the court did not abuse its discretion in excluding the offer. Such offer lacked the quality of “reasonable certainty” to qualify it for admission. Thienes v. Harlin Fruit Co., 499 S.W.2d 223, 229-231 (Mo.App.1973); Haley v. Byers Transportation Co., 414 S.W.2d 777, 781 (Mo.1967). Cf. and distinguish, e. g., Turrietta v. Wyche, 54 N.M. 5, 212 P.2d 1041 (1949), where the test of probability, i. e., reasonable certainty, was met in that the witness testified that he had a job for the disabled party; and De Haas v. Pennsylvania R. Co., 261 Pa. 499, 104 A. 733 (1918), permitting “lessened capacity to earn in any actually available occupation” to be shown on the issue of a plaintiff’s damages.

Appellant contends (II) that the court erred in giving Instructions 7 and 8, asserting (A) the evidence showed that Roger Dale Chaussard had - recovered from the January 7,1971, injury and had returned to his employment by June 15, 1971, so there was no evidentiary basis for submission of future damage in the instructions; and (B) the November, 1971, injury was an independent occurrence for which defendant was not liable.

The language “and is reasonably certain to sustain in the future” may be included in instructions on the measure of damages if supported by the evidence. MAI 4.01; Kramer v. May Lumber Co., 432 S.W.2d 617, 621 (Mo.App.1968); Harrison v. Weller, 423 S.W.2d 226, 231 (Mo.App.1967); Zoeller v. Terminal Railroad Ass’n of St. Louis, 407 S.W.2d 73, 77-78 (Mo.App.1966).

Doctors Schoolman and McCullough stated that Roger Dale Chaussard was permanently and totally disabled; that his accident and injuries in the January 7, 1971, occurrence contributed to his injury in November, 1971, and his own testimony was that his return to work was not predicated on recovery but on necessity. Aside from such showing, an instruction which includes future pain and suffering and future loss of earnings as considerations in an assessment of damages is not dependent upon a showing of permanent injury. Simmons v. Jones, 361 S.W.2d 860, 861-862 (Mo.App.1962). Long continuance of conditions existing at trial is sufficient to warrant giving an instruction on damages from future pain and suffering. Jones v. Allen, 473 S.W.2d 763, 766 (Mo.App.1971). Consequently, it may not be said in this case that there was no evidentiary basis for modification of MAI 4.01 to include submission of future damages. See also Young v. Frozen Foods Express, Inc., 444 S.W.2d 35, 41 (Mo.App.1969); Moore v. Huff, 429 S.W.2d 1 (Mo.App.1968); Gaynor v. Horwitz, 464 S.W.2d 537 (Mo.App.1971); Pryor v. American Oil Co., 471 S.W.2d 492 (Mo.App.1971). Cf. Harrison v. Weller, supra, where there was no evidence that the complaints at trial had persisted from the time and as a result of the accident.

In order to submit the question of defendant’s liability for his November, 1971, injuries, Roger Dale Chaussard needed to show only that the January 7, 1971, injury, caused by defendant, caused or contributed to cause the November, 1971, (re)injury. Bowyer v. Te-Co., Inc., 310 S.W.2d 892 (Mo.1958). Missouri follows the general rule that a person injured due to negligence of another is entitled to recover all damages proximately traceable to the original negligence, including subsequent aggravation which the law regards as a natural result of the original injury, even though some intervening agency may have contributed to the result. State ex rel. Smith v. Weinstein, 398 S.W.2d 41, 44 (Mo.App.1965). This was satisfied by the testimony of Doctors Schoolman and McCullough that Roger’s January 7, 1971, injury contributed to his reinjury November 22, 1971. Cf. Herr v. Ruprecht, 331 S.W.2d 642 (Mo.1960), where doctors’ statements that the condition of plaintiff’s right knee following the original injury “played a part” in a latter fall as opposed to contributing to cause such latter fall was properly discounted as “nothing but speculation.” Consequently, it may not be said that the court erred in modifying MAI 4.01 to submit damages that Roger may have suffered from the occurrence of November 22, 1971, since there was evidence that such injuries were caused or contributed to by the injuries in the occurrence of January 7, 1971. Homm v. Oakes, 453 S.W.2d 679 (Mo.App.1970); Notes on Use, MAI 4.01.

Appellant contends the court erred (III) “in admitting * * * testimony of witnesses Henry Smith and Ann Trantham * * * and Plaintiff’s Exhibit 31, * * medical and hospital bills in the amount of $7,887, for care and treatment of Roger Chaussard, which * * * had been paid by [his employer] GAF Corp. under Missouri Workmen’s Compensation provisions; said evidence * * * was misleading and prejudicial * * * , especially as it included $4,354.29 of medical expenses incurred for treatment of the later injury of November, 1971.”

There was evidence to show that defendant caused the injury of November, 1971, as well as the injury of January, 1971. These bills were shown to be the obligation of plaintiff for his medical care for those injuries. As such, they were admissible as evidence for which plaintiffs could be compensated, and their payment by a third party was immaterial. Kickham v. Carter, 335 S.W.2d 83 (Mo.1960); Erbes v. Union Electric Co., 353 S.W.2d 659 (Mo.1962).

In so far as appellant’s charge is that the very nature of these bills rendered them inadmissible, the point is not supported by authority. Adams v. White, 488 S.W.2d 289, 294 (Mo.App.1972); Cady v. Kansas City Southern Railway Co., 512 S.W.2d 882 (Mo.App.1974).

Judgments affirmed.

All concur.


author: PRITCHARD, Chief Judge.

text:
    Harold B. HOLLEY, Appellant, v. The PERSONNEL ADVISORY BOARD OF the State of Missouri et al., Respondents.
    No. KCD 27042.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    Motion for Rehearing and/or Transfer Denied May 3, 1976.
    Application to Transfer Denied June 14, 1976.

      Thomas J. Downey, Jefferson City, for appellant.
    Richard C. Ashby, Jefferson City, for respondents.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

The Personnel Advisory Board of the State of Missouri, after hearing, affirmed the suspension and dismissal by the appointing authority, the Division of Mental Health, of appellant who was an Alcohol Counselor Assistant I of the Western Missouri Mental Health Center in Kansas City, Missouri. The Advisory Board found: “That the preponderance of the credible evidence and testimony offered at the hearing clearly indicated that the said Harold B. Holley was incompetent and inadequate in the performance of the duties of his position and that he was frequently absent from his place of duty without authority on the ward where appellant was assigned his place of duty; That he was habitually tardy in reporting for duty or absented himself without authority frequently from duty during regular working hours; That on or about April 7, 1972, he left the institution with important statistical reports and thereafter was absent without authority for two days; That he was late for work or absent and on February 28,1972, received a three-day suspension for failure to report to work.” The trial court affirmed the decision and order of the Personnel Advisory Board, finding that it “is lawful, reasonable, proper and is based on competent and substantial evidence upon the whole record.”

One preliminary matter must be considered. Respondents have filed a motion to dismiss Point V of appellant’s reply brief and the argument portion of his reply brief wherein he contends “V. The judgment of the circuit court affirming the agency is unlawful because the decision of the Personnel Advisory Board did not include or was not accompanied by findings of fact and conclusions of law as required by Section 536.090.” In support of the motion, respondents say the reply brief issue was not raised in his original brief, nor in respondents’ brief, but that the matter is an improper attempt to enlarge the issues by presentation in the reply brief. An inspection of the records reveals that not only did appellant raise the issue in his original petition for review (i. e., that no findings of fact and conclusions of law were made), but in his supplemental petition, filed after the findings of fact and conclusions of law were filed, wherein he pleaded that the findings of fact and conclusions of law did not accompany the original decision. The matter was further presented by Point IV of appellant’s original brief here. It is apparent that no new matter was introduced. It is not necessary to consider whether Stephen & Stephen Properties, Inc. v. State Tax Com’n, 499 S.W.2d 798, 804[8, 9] (Mo.1973), is prospective only in its holding that the agency cannot postpone making its findings of fact and conclusions of law until the notice is received of the filing of the petition for review, and then later making findings and conclusions of law which will support that decision. Here, appellant filed a supplemental petition for review, and in Missouri U. Meth. Retire. Homes v. State Tax Com’n, 522 S.W.2d 745, 748 (Mo.1975) [where plaintiff amended its petition for review after the findings and conclusions were filed, as here, “presumably to meet any new issue presented by the findings and conclusions”], it was held that there was no prejudice to plaintiff. Not only is respondents’ motion to dismiss overruled, but necessarily, the U. Meth. Retire. Homes case controls and appellant’s Point IV (and his reply brief Point V) are ruled against him.

Appellant’s Point I is that the judgment of the trial court is unlawful because the letter of dismissal failed to give him a written statement setting forth in substance the reason for dismissal as required by § 36.380, RSMo (Amended Laws 1974, 1st Ex.Sess. p. 515, H.B.No.8, § 1); and the letter of dismissal failed to set forth specific instances as required by the Rules and Regulations of the Personnel Advisory Board.

§ 36.380 provides in part: “An appointing authority may dismiss for cause any employee in his division occupying a position subject hereto when he considers that such action is required in the interests of efficient administration and that the good of the service will be served thereby. No dismissal of a regular employee shall take effect unless, prior to the effective date thereof, the appointing authority gives to such employee a written statement setting forth in substance the reason therefor and files a copy of such statement with the director. * * *

Rule 13.2 of the Personnel Advisory Board, which supplements the statute, provides “with respect to suspension, demotion, or removal from classified service”, these causes: “* * * (b) Is incompetent or inefficient in the performance of the duties of his position (specific instances to be charged); * * * (f) Has been habitually tardy in reporting for duty or has absented himself frequently from duty during regular working hours.”

The April 18, 1972, letter of the appointing authority [Western Missouri Mental Health Center] dismissing appellant is:

“You are hereby dismissed from employment by the Division of Mental Health for violation of the Missouri Personnel Board Rule 13.2.
Rule 13.2 reads as follows:
(b) Is incompetent or inefficient in the performance of the duties of his position.
(f) Has been habitually tardy in reporting for duty or has absented himself frequently from duty during regular working hours.
In an incident report dated April 18, 1972, it was reported that on April 7,1972 you left WMMHC with important statistical reports. You then called in both April 10th and 11th, ill. This incident is important in that the papers were needed in Jefferson City and were not available.
On April 18, 1972 you called to advise you would be late for work. This was at 2:00 P.M. You reported for work about 2:25 P.M.
On February 28, 1972 you failed to report for work. This was following a three day suspension.
On February 16 and 17, 1972 failed to report for work or call in.
On September 28, 1971 you failed to report for work and did not call in.
We enclose copies of the above mentioned incident reports.
Accordingly, you are hereby dismissed effective at the close of business on April 21, 1972. You are suspended from April 19, 1972 until the date of your dismissal.
You are advised that you may appeal your dismissal to the Missouri Personnel Board provided such appeal is made in writing within thirty days of the effective date of your dismissal.”

Appellant is correct that the purpose of the requirement of the statute that the substance of the reason for dismissal be set forth, and under Rule 13.2 that specific instances be set forth as to incompetency or inefficiency, is so he can protect himself under the State Merit System by the appeal of the reasons to the Personnel Advisory Board and to the courts. See 63 Am.Jur.2d, Public Officers and Employees, § 215, p. 760. It is apparent, even though the dismissal letter did not charge that appellant was incompetent or inefficient in the performance of his duties by reason of taking important statistical reports away from WMMHC, which papers were needed in Jefferson City, it is a fair construction that the incident was specifically the reason for the charge of incompetence or inefficiency. No doubt, that incident was the precipitating cause of the dismissal — an act which may be inferred to have interfered with the efficient operation of WMMHG, although it was not claimed that the removal of the reports was done in violation of any office policy.

It is true that the single incident of tardiness charged in the dismissal letter would not constitute habitual tardiness, and standing alone would not constitute a sufficient basis for discharge from employment. There were, however, specific instances charged of absence from duty during regular working hours. Certainly, those absences would be a sufficient cause for dismissal under the statute. The question is whether the three absences are “frequent” so as to be a reasonable basis for dismissal. It is unnecessary to adopt appellant’s construction of “frequent” or his reliance upon Churchwell v. State, 22 S.E.2d 824 (Ga.1942), that the word means “ ‘numerous;’ ‘often to be met with;’ ‘happening at short intervals;’ [or] ‘often repeated or occurring.’ ” § 36.880, supra, gives discretionary authority to the appointing authority to dismiss for cause any employee when he considers that such action is required in the interests of efficient administration and that the good of the service will be served thereby. Upon appeal, the Personnel Advisory Board may “Sustain the dismissal of such employee, unless the board finds that the dismissal was based upon political, social, or religious reason, * * § 36.-890.5(2). Appellant does not claim that his dismissal was not for the good of the service, a ground of review under § 36.390 Subd. 5. Among the grounds of inquiry on review of the action of the agency under § 536.140 RSMo 1969, the court may determine whether it (2) * * ⅞ is in excess of the statutory authority or jurisdiction of the agency; (3) Is unsupported by competent and substantial evidence upon the whole record; (4) Is, for any other reason, unauthorized by law; (5) Is made upon unlawful procedure or without a fair trial; (6)Is arbitrary, capricious or unreasonable; and (7) Involves an abuse of discretion. Clearly, the actions of the appointing authority and the Personnel Advisory Board were within their statutory authorities and jurisdiction. The record shows that incidents charged were supported by competent and substantial evidence, “substantial” in the sense that it supports the discretionary determination that the dismissal was for the good of the service. Since there was adequate specification of the charges to inform appellant thereof, the action was not unauthorized by law. Appellant had a fair trial. In view of the statutorily granted discretion the decision was not arbitrary, capricious or unreasonable and did not involve an abuse of discretion. The admonition of § 536.140 5, is that “the court shall not substitute its discretion for discretion legally vested in the agency.” Greene County v. Hermel, Inc., 511 S.W.2d 762 (Mo.1974); Missouri Real Estate Commission v. Steger, 509 S.W.2d 47 (Mo. banc 1974).

The finding of the Personnel Advisory Board that appellant was absent without authority for two days after he took away the statistical reports is not supported by the evidence, for the attendance at work record shows that he was on authorized sick leave for those two days. The findings are otherwise amply supported by the record.

By Point V, appellant says that the removal of his name from all registers under the State Merit System by the Director of the Personnel Division, and the action of the Personnel Advisory Board upholding the same, are unlawful. By Point VI he claims that the refusal of the director to restore his name to the registers, at his request, and the action of the Personnel Advisory Board upholding the director, are unlawful. By letter of May 18, 1972, the director of the Board struck appellant’s name from the following registers: Clinical Casework Assistant I, Alcoholism Counselor Assistant II, Caseworker, Alcoholism Counselor I, Health Educator I, and Health Program Representative I. § 36.390, subd. 4, RSMo 1969, provides that an eligible whose name has been removed from a register may appeal to the board within 30 days after notification. Appellant did not seek to amend his appeal of his dismissal by the appointing authority to include the matter of removal of his name from the registers. The appeal was not timely made on the supplemental matter, and therefore, will not be considered. It is noted, however, that by letter of November 22, 1972, the Personnel Advisory Board ordered that appellant’s name be returned to the Merit System register for Alcoholism Counselor Assistant I.

The judgment is affirmed.

All concur.