author: MORGAN, Judge.

text:
    STATE of Missouri, Respondent, v. Patrick Murray KEATING, Appellant.
    No. 59437.
    Supreme Court of Missouri, En Banc.
    May 10, 1977.
    Rehearing Denied June 14, 1977.
    Lee Nation, Asst. Public Defender, Kansas City, for appellant.
    James S. Haines, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
   MORGAN, Judge.

Respondent’s application to transfer this cause from the Kansas City District of the Court of Appeals having been sustained, we consider the same “as on original appeal.” Mo.Const. Art. 5, Sec. 10.

Appellant, a lawyer, was indicted and convicted of possession of Phenmetrazine Hydrochloride, a Schedule II controlled substance, and his punishment was fixed by the jury at five years confinement. §§ 195.017, 195.020 and 195.200, RSMo Supp. 1973. We affirm.

Prior to the alleged offense, several law enforcement officers had been assigned to investigate drug traffic into the jail of Jackson County. Officer Charles Williams knew that one Sharon Pollard (hereinafter referred to as the informant) was incarcerated at a Municipal Correctional Institution and he visited her there during May of 1973. On this occasion, they discussed “criminal activities in this town” and “Mr. Keating”; and, she “suggested to [Williams] that Pat Keating might be involved” with drugs being brought into the jail. The officer gave her “a hundred-dollar bill” even though she made no firm commitment to provide information. Upon being released, informant contacted Officer Williams with information, presumably about both appellant and the drug problem. Later she met with the officer at his office in the Jackson County Courthouse where plans were made for informant to pass drugs to appellant on June 21. To avoid some repetition, we detail such “plans” as they were revealed at trial.

Officer Williams was aware that informant had “sources” from which to obtain controlled substances. During the afternoon of June 20, James Lyons, an investigator for the prosecutor’s office, chauffeured informant to the offices of two “doctors” in the metropolitan area of Kansas City where she obtained two prescriptions for the controlled substance which appellant was convicted of possessing. Investigator Lyons accompanied informant as far as the waiting room of each doctor’s office and paid for the prescriptions she obtained. He then took informant to the Nigro Building in Kansas City where they met Officer Williams at approximately 5:00 P.M. There, according to informant, she telephoned appellant and told him she “had been able to arrange to obtain some drugs that [they] had discussed previously.” She testified that a meeting between the two that night was discussed, but since the two prescriptions had not been filled she advised appellant she would have to call him back to set a definite time and place for them to meet. She further testified that she called appellant later and arranged to meet him the following morning (June 21, 1973) around 8:00 or 8:30 on the ninth floor of the county courthouse. Officer Williams gave her thirty or thirty-five dollars to be used in filling the prescriptions. Stops by informant at several pharmacies produced sixty pills, six of which she kept and took that night.

The next morning, Officer Williams had Harl Morris, a detective on the Jackson County Sheriff’s Patrol, go after informant and bring her to the prosecutor’s office. She arrived between 7:00 and 7:30 A.M. and had with her the remaining 54 pills. They were in a “plastic container” inside a “white sack” that had come from one of the pharmacies. An effort was made “to wire Miss Pollard [informant] for sound so we could overhear the conversation she was going to have with Mr. Keating.” The “monitoring device” to accomplish this hoped for result would not work so Investigator Lyons was selected to go to the ninth floor to “witness the pass.” When informant stepped off the elevator on the ninth floor she observed appellant standing by the south corridor window. When she walked over to him, according to informant’s testimony, appellant asked her if “she had the pills” and she replied that she did. The “white sack” was handed to appellant and he placed it in his left inside coat pocket. Informant also testified that she asked appellant for directions to “get on the freeway” to go to Kansas City, Kansas, and that he pointed out the route through the window. She then left.

Investigator Lyons, on the ninth floor to “witness the pass,” confirmed the events just described except the conversation, if any, had between informant and appellant. When he, Lyons, observed appellant leaving the ninth floor by means of the “jail elevator,” he called the prosecutor’s office that the “pass had been made,” and he went to the jail area of the courthouse on the twelfth floor. Soon after appellant’s arrival at the jail, he was apprehended by Lyons and other “corrections officers.” The sack with pills in it was taken from appellant.

Appellant took the stand to testify on his own behalf. He contradicted informant’s version of the “meeting” between the two on the ninth floor. He testified that he agreed to meet informant on the morning of June 21 to counsel with her about obtaining a bond with reference to a criminal charge pending against her in Kansas. He told the jury that he believed that the “white sack” passed to him contained money in payment of a fee for legal services he had rendered previously for informant; and, that when he left the “meeting” he proceeded to the jail for a purpose totally unrelated to that claimed by the state.

The record reflects, further, that informant was a user of “various drugs,” including Heroin, “off and on” for a period of twenty years, and an “informer” throughout the course of ten years, on more occasions than she could count or remember, for the offices of the United States Attorney, Jackson County Sheriff, Jackson County Prosecutor and the Kansas City Police Department. Not unexpectedly, her credibility was attacked vigorously by defense counsel throughout the trial and the record is replete with evidence of her prior criminal convictions and efforts to establish that her testimony was fabricated in return for favorable “arrangements” reference other charges.

Prior to trial, a separate hearing had been held on appellant’s Motion To Suppress the controlled substance. Informant, as a witness, was available to testify as to appellant’s “predisposition” to commit the crime — a relevant and necessary issue under the subjective test. For instance, in response to one question she said: “Well, we discussed the prior times I’d given Mr. Keating pills to take into the County Jail.” The following dialogue occurred with informant as a witness:

Q — Now, you say that you obtained the pills for Mr. Keating prior to June the 20th?
A — Yes, I did.
Q — Can you tell us what dates they were prior to June the 20th?
A — No, I don’t know the exact dates. Q — Did you report this to any law enforcement agency?
A — No, I didn’t.
Q — Did you ever tell Mr. Williams about it?
A — Yes.

Thus, it is readily apparent that the state was prepared, if entrapment was raised at trial, to assume its burden of showing beyond a reasonable doubt (under the subjective test) that appellant was predisposed. Defense counsel, being not only aware of the law but also the state of the evidence, as an apparent trial strategy took a very ambivalent approach to his problem — the result being that some statements made during trial are totally inconsistent with some of the arguments made on appeal. Three comments of defense counsel to the trial court should suffice:

Your honor, I can state specifically what I’m concerned about. And that is getting into information — alleged information which — about other alleged drug activities supposedly connected with Mr. Keat-ing. I believe that would be beyond the bounds .
Judge, during the last break, a comment Mr. O’Sullivan (Prosecutor) made to me makes me think there may be some misunderstanding as to the nature of the defense in this ease, specifically as to whether or not entrapment in the sense usually used is relied on in this case. It is not. (Emphasis added.)
This type of entrapment is not the case here ... As I’ve stated, it’s the defense position that Sharon Pollard has, in effect, framed Pat Keating. That he had no knowledge that he possessed narcotics. That he had no intent to possess narcotics . . . this is a factual defense, obviously.

In his original brief filed in the Court of Appeals, appellant contended that the trial court erred (1) “in overruling appellant’s [motion for] judgment of acquittal as entrapment exists as a matter of law whenever the state provides the contraband upon which a possessory offense is based”; (2) “in failing to view documents subpoenaed by appellant after attorney-client privilege was claimed”; (3) “in failing to grant appellant a new trial on the grounds that the prosecution failed to disclose its agreement or understanding with witness Sharon Pollard”; (4) “in improperly limiting the cross-examination of prosecution witness Sharon Pollard”; and, (5) “by excluding evidence tending to show an agreement between the prosecution and witness Sharon Pollard.”

In his supplemental brief filed in this court, appellant expands the point on entrapment by contending that: “A —entrapment was interjected into appellant’s trial; no predisposition was shown by the prosecution; thus, entrapment was established as a matter of law; B — the trial court erred in failing to instruct on entrapment as entrapment was part of the law of the case; C —Missouri’s entrapment defense should be modified similar to the test employed in United States v. Mosley, 496 F.2d 1012 (5th Cir. 1974); and D — this court should establish the objective entrapment test.”

First, we consider the point on entrapment and hasten to add that there can be no doubt as to the law in this state. Missouri follows the “subjective” test which focuses on the “origin of intent” to commit the crime with emphasis on the “predisposition” of the accused in contrast to the “objective” test which concentrates on whether or not the police activity shown should be condoned or rejected.

This court in State v. Decker, 321 Mo. 1163,14 S.W.2d 617 (1929) at 619 said: “The rules applicable may be stated thus: Where the criminal intent originates in the mind of the defendant on trial, and the offense is accomplished, it constitutes no defense that an opportunity is furnished, or that an officer aids the accused in the commission of the crime, in order to obtain evidence upon which to prosecute him. But where the criminal intent originates in the mind of the entrapper, and the accused is lured into the commission of the offense charged, in order to prosecute him therefor, it is the general rule that no conviction may be had, though the criminality of the act is not affected by any question of consent.”

Recently, this court in State v. Hammond, 447 S.W.2d 253 (Mo.1969), reaffirmed the holding in Decker and approved an instruction (l.c. 254-255) premised on the subjective test. We need only quote thé last two paragraphs of said instruction to give a concise example of how the test is articulated in this state, to-wit:

“If, then, the jury should find beyond a reasonable doubt from the evidence in the case that, before anything at all occurred respecting the alleged offense involved in this case, the defendant was ready and willing to commit crimes such as charged in the Information, whenever opportunity was offered, and that the Government agents did no more than offer the opportunity, the defendant is not entitled to the defense of unlawful entrapment.
On the other hand, if the jury should find from the evidence in the case that the defendant had no previous intent or purpose to commit any offense of the character here charged, and did so only because he was induced or persuaded by some agent of the Government, then the defense of unlawful entrapment is a good defense, and the jury should acquit the defendant.”

Compare MAI-CR 3.28.

Our holdings reference entrapment as a defense are consistent with those of the United States Supreme Court. Representative state cases include: State v. Varnon, 174 S.W.2d 146 (Mo.1943); State v. Taylor, 375 S.W.2d 58 (Mo.1964); State v. Van Regenmorter, 465 S.W.2d 613 (Mo.1971); State v. Sledge, 471 S.W.2d 256 (Mo.1971); State v. Stock, 463 S.W.2d 889 (Mo.1971); State v. Golightly, 495 S.W.2d 746 (Mo.App.1973); State v. Sykes, 478 S.W.2d 387 (Mo.1972); State v. Boxley, 497 S.W.2d 129 (Mo.1973); State v. Pearson, 519 S.W.2d 354 (Mo.App.1975); and State v. Hyde, 532 S.W.2d 212 (Mo.App.1975). Of interest is a Comment, Entrapment: A Critical Discussion, in Volume 37, No. 4 (Fall 1972), Missouri Law Review at 633, wherein many of the cases just cited are discussed. The author of the comment, contrary to the decisions of this court, finds the “objective” test attractive.

First, it must be determined if “entrapment” is a viable issue in this case. We think it obvious that it is not. Where was there a possibility of illegal “inducement” of appellant to commit the offense? Police activity of which he was unaware would not be relevant as it could not have affected his activities in any manner. Thus, the only possible inducing factor left would be the two phone calls informant made to appellant; and, he eliminated any chance they tended to induce him to take drugs into the jail by testifying that such phone conversations involved subject matter other than drugs. Nothing else is left; and, it was not necessary that the defense of entrapment be submitted to the jury. State v. Taylor, supra. However, if entrapment evidence had been present, it would have been incumbent upon the court to instruct on the issue whether requested or not. State v. Decker, supra, 14 S.W.2d at 620.

This case is much like that of State v. Napolis, 436 S.W.2d 645 (Mo.1969) wherein the court discussed comparable facts and the holding in Kibby v. United States, 372 F.2d 598 (8th Cir. 1967); and, then ruled (l.c. 649) that: “ . . . the only evidence which possibly could pertain to the issue of entrapment was that the agent Rutledge and the informer Ivy went to an apartment building where they asked to see Chico, the defendant, and when they saw him merely told him that Ivy’s companion wanted to buy some ‘splash.’ This evidence is comparable to the evidence of the telephone call in Kibby and is insufficient to warrant consideration of the issue of entrapment or to justify an instruction to the jury on that issue.”

Appellant’s defense was much like that in State v. McIntosh, 333 S.W.2d 51 (Mo.1960), wherein it was said at 60: “Her theory and testimony was that she had not sold narcotic tablets as alleged in the amended information. Her tendered instruction, the refusal of which is assigned as error, was not based on the theory of entrapment. It was based on the theory that she was innocent of the charge against her; that the evidence had been ‘planted’ and defendant ‘framed’ by false testimony . . . The instruction was properly refused . . . ” As heretofore shown, the instructions given (Nos. 5 and 6) submitted this very issue (deception) and we cannot avoid the fact that by its verdict the jury rejected appellant’s version.

Nevertheless, we feel compelled to respond briefly to appellant’s other arguments reference entrapment although they fall necessarily into a category of dicta.

1. Originally in the Court of Appeals, the entrapment argument was limited to a contention that an acquittal must always follow when the state provides the contraband. Reliance was placed on United States v. Bueno, 447 F.2d 903 (5th Cir. 1971), and United States v. Mosley, 496 F.2d 1012 (5th Cir. 1974); both of which, in fact, direct acquittal in such a case and the declaration of such a rule became identified as a “Bueno” Instruction. Appellant recognizes that the 8th Circuit Court of Appeals rejected a comparable approach in United States v. Hampton, 507 F.2d 832 (1974), upon which the United States Supreme Court granted certiorari at 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761 (1975). We now have the guidance of that opinion-found in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). Therein, the court reaffirmed its belief in the fairness of the “subjective” test and rejected all arguments that supplying of contraband by the state barred prosecution. We agree.

2. In his supplemental brief, filed in this court under “A”, appellant submits that the state failed to make a submissible case because no “predisposition” of appellant was shown. Since entrapment was not an issue, the point is moot. However, we recognize respondent’s argument that: “It strains credulity to say that a manifest injustice can result from the state’s failure to adduce predisposition evidence . . . when it is remembered that these failures resulted from the calculated trial strategy of appellant.”

3. Point “B” is lacking in merit since it has been found that entrapment was not an issue and no instruction thereon was required.

4. Point “C” recommends our adoption of the finding in United States v. Mosley, supra, but we decline since such an approach has been rejected in- United States v. Hammond, supra.

5. Point “D” recommends that this court reject the “subjective” test and adopt or establish an “objective” test. Conceding as we must that the “subjective” test is not without its problems, we decline to abandon it. “The defense of entrapment was not known at common law. It is not recognized in some states, and some states seem to support the view that the entrapment doctrine is not applicable to certain prosecutions . . . ” 21 Am.Jur.2d, Criminal Law, § 143, p. 212. However, the test therein is at least directed toward a determination of whether or not the accused was “induced” to commit the crime, while the “objective” test makes no effort to resolve that basic issue and goes off on a tangent to resolve whether or not the state activity was too offensive to tolerate.

The point (with its sub-points) is ruled against appellant.

Next, we consider those points (other than entrapment) presented initially in the Court of Appeals and heretofore listed. Nos. 2, 3 and 5 all revolve around appellant’s contention that informant’s testimony was fabricated in return for favorable treatment by the state reference her many criminal activities and charges. No. 2 pertains to a subpoena duces tecum seeking examination of the file of Mr. Henri Watson, an Associate Public Defender, who represented informant in some of the charges pending against her. At a hearing thereon, appellant’s counsel advised the court that: “ . . . counsel does not have the exact nature of the papers in Mr. Watson’s file . ” but went on to guess what might be found therein and contended the same did not come under the attorney-client privilege, § 491.060, RSMo 1969, as asserted by Mr. Watson. See Rule 25.32 which calls for the state’s disclosure to a defendant of most every conceivable bit of information available. It is not necessary for us to balance the dictates of the rule against the duty of Mr. Watson to protect the confidences of his own client, the informant. Even if it be assumed that the trial court erred in sustaining Mr. Watson’s position, the ruling could not have been prejudicial to appellant. At the hearing on the motion, Mr. Watson explained events leading to dismissal of the two charges in Kansas. He testified that long before the instant case prosecutors there had agreed to dismiss the same if informant paid the costs. “At that time I received that letter [offering to nolle the same], I had no communications whatsoever with Mr. O’Sullivan or anybody else in the Jackson County Prosecutor’s Office with reference to these two charges. In fact, it was not until much later, and that is, after I had learned that Sharon Pollard was a prospective witness for the State in the Keating case, that I had occasion to discuss these charges with Mr. O’Sullivan.”

In connection with the dismissal of charges in Missouri, Mr. Joseph Hogsett, trial director of the Jackson County Prosecutor’s Office, testified that his dismissal of the charges in the Jackson County Circuit Court against Sharon Pollard and her son was not the result of a deal between the state and Sharon Pollard, but rather, in her case it was the result of an illegally obtained confession. With respect to dismissal of the charge against her son, it was concluded that the charge should not have been filed in the first place. As said in State v. Sims, 501 S.W.2d 161 (Mo.1973), l.c. 162: “The difficulty in appellant’s position is that his contention does not prove itself, and there is nothing in this record to suggest that the prosecuting attorney had made any promises to or agreements with the witnesses with respect to their future prosecution to disclose to the jury.” The promise to arrange an outstate location for informant to finish serving her term was divulged.

Point 2 is lacking in proof and the same necessarily applies to Nos. 3 and 5. See State v. Collett, 526 S.W.2d 920 (Mo.App.1975) reference Point VI, The “Deal”, at 930, 931 and 932.

In No. 4, appellant contends he was unduly restricted in his cross-examination of informant and therefore the jury was unaware of certain facts which might have discredited her testimony. We adopt, and consider sufficient, the respondent’s response wherein a portion of the evidence is summarized, to-wit:

On direct examination Sharon Pollard gave her residence as the Lexington County Jail. On cross-examination Sharon Pollard said that she had been taking drugs for twenty years, that she had been hospitalized in the federal narcotics hospital at Lexington, Kentucky, that she had been in a methadone program administered by the Kansas City University Medical Center, that she had taken a number of drugs, including heroin, that her participation in the methadone program ended with her incarceration at the Municipal Correctional Institution, that during May, 1973, a narcotics charge, a burglary charge, and two forgery charges were pending against her, that she had been married four times, that she had only been employed for a brief period during the preceding eight years and that was while she was in a federal narcotics rehabilitation program, that in the past she had served time in the Municipal Correctional Institution, the Jackson County Jail, and the Missouri Penitentiary for Women, that she once walked away from a hospital in Columbia, Missouri, while she was in the custody of the Missouri Department of Corrections, that she once attempted to escape from the Municipal Correctional Institution, that for ten years she had been an informer for the Kansas City Police Department, the United States Attorney’s Office and the Jackson County Prosecutor’s Office, that she would not characterize herself as a law-abiding citizen, that during the time she operated as an informant criminal charges pending against her were dismissed, that she had been convicted of one felony and four or five misdemeanors,- and that her misdemeanor offenses included carrying a concealed weapon, prostitution, and shoplifting, while the felony offense was forgery.

From the record as made, it cannot be said that a jury of reasonable intelligence did not appreciate informant’s reputation; and, accordingly there was no denial of the right of confrontation.

Point No. 4 is ruled against appellant. Finding no reversible error, the judgment is affirmed.

SEILER, C. J., and BARDGETT, HENLEY, FINCH and DONNELLY, JJ., concur.

RENDLEN, J., not participating because not a member of the Court when cause submitted.

      . The sack was admitted in evidence as State’s Exhibit No. 2 and we observe that it is 10 inches in length and 9 inches in circumference. Thereon, in dark red, is printed: SHALINSKY, Rexall, Drug Store(s) (with a decorative circle around the same) and Professional Prescription Service followed by addresses and phone numbers.

      . Defendant’s theory as thus expressed was exactly that submitted to the jury in Instructions 5 and 6. No. 5 required the jury for conviction to find “that defendant was aware of the character of the drug and intentionally and knowingly had it in his possession” while No. 6 provided that: “If you do not find and believe from the evidence beyond a reasonable doubt that defendant was aware of the nature of the drug and knowingly had it in his possession, you must find the defendant not guilty.”

      . The obvious objective was disclosure of “deals” allegedly made by the state for informant’s assistance and the post-trial dismissal of at least four charges that had been pending against informant or her son.


source: Caselaw Access Project

author: PINCH, Judge.

license: Public Domain

text:
    BLUE SPRINGS BOWL et al., Plaintiffs-Respondents, v. James R. SPRADLING et al., Defendants-Appellants.
    No. 59523.
    Supreme Court of Missouri, En Banc.
    May 10, 1977.
    Rehearing Denied June 14, 1977.

      Clarence Thomas, Asst. Atty. Gen., Jefferson City, for defendants-appellants.
    Richard M. Shteamer, Kansas City, for plaintiffs-respondents.
    Betty Jane Okenfuss, Asst. County Counselor, Clayton, for amicus curiae.
   PINCH, Judge.

This appeal, involving construction of the revenue laws of this state, is one of which we have jurisdiction. Mo.Const. art. V, § 3. The precise single question presented is whether the Missouri sales tax law imposes a tax on receipts derived from fees or charges paid for participating in the activity of bowling at commercial bowling establishments. The trial court, considering itself bound under the decision in L & R Distributing, Inc. v. Missouri Department of Revenue, 529 S.W.2d 375 (Mo.1975), held that the sales tax law does not impose a tax on such receipts. Accordingly, it invalidated a Department of Revenue rule which called for imposition of a tax thereon and enjoined the Department of Revenue from collecting such taxes. We reverse and remand with directions.

The facts were stipulated. Effective April 30, 1974, the Department of Revenue promulgated a revised Revenue Rule 49 which reinterpreted the sales tax act, in particular § 144.020.1(2), RSMo Supp.1973, as imposing a sales tax on gross receipts derived from fees or charges paid for participating in bowling in any place of amusement, entertainment or recreation. This represented a change in the position of the Department of Revenue because previous department rules had not included in receipts to be taxed those fees paid for participating in bowling. Respondents paid the tax under protest and then brought this action, seeking a declaration that revised Rule 49 is invalid insofar as it requires payment of sales tax on receipts from bowling fees or charges. The suit also sought injunctive relief.

At the outset, we address the question of whether, as respondents contend and the trial court believed, L & R Distributing, Inc. rules the decision herein. If it does, we need do no more than to so recognize and state. That would mean affirming the action of the trial court.

In L & R Distributing, Inc. the issue was whether § 144.020.1(2) imposed a sales tax on gross receipts of coin operated devices such as pinball machines placed in “ ‘restaurants, confectionaries, bowling alleys, hotels, motels, bus stations, airports and other similar places’ ”. The court pointed out that the statute provides for taxation of fees paid to or in a place of amusement, entertainment or recreation, saying “two elements are essential, — that there be fees or charges and that they be paid in or to a place of amusement, etc.” Id. at 378. The court was of the view that places such as hotel lobbies, restaurants, motels, bus stations and airports are not, within normal contemplation, places of amusement or entertainment and are not converted into such types of places by the placement therein of pinball machines. Thus, the second part of the two element test, namely, that the fees or charges be paid in or to a place of amusement, entertainment or recreation, was lacking. Hence, the court reasoned, the statute did not impose a sales tax on receipts from those devices as such. As the court pointed out, the tax is imposed only if there are fees paid in or to a place of amusement, etc.

In this case, we do not have an attempt to impose a tax on fees received for bowling as such, regardless of where paid. Rather, we have for decision whether fees paid in commercial bowling establishments for participation in bowling are taxable. Such places clearly fall within one or more of the categories of places of “amusement, entertainment or recreation” mentioned in the statute. Thus, the situation is not comparable to the one considered in L & R Distributing, Inc. It follows that the holding therein that receipts from coin operated machines such as pinball machines, located elsewhere than in places of amusement, etc., were not taxable does not dictate a result in this case.

In deciding whether § 144.020.1(2) imposes a sales tax on fees paid for bowling in commercial bowling alleys and whether revised Revenue Rule 49 does or does not correctly interpret and apply said statutory provision, there are certain well established rules of statutory construction which we must follow. “The primary rule of statutory construction is to ascertain the intent of the lawmakers from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning.” State v. Kraus, 530 S.W.2d 684, 685 (Mo. banc 1975). “ * * * [W]here the language of a statute is plain and admits of but one meaning there is no room for construction.” Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920, 931 (banc 1933). United Air Lines, Inc. v. State Tax Commission, 377 S.W.2d 444, 448 (Mo. banc 1964); Rathjen v. Reorganized School District R II, 365 Mo. 518, 284 S.W.2d 516, 523 (banc 1955). Tax laws are to be strictly construed and if the right to tax is not conferred by plain language, it will not be extended by implication. United Air Lines, Inc. v. State Tax Commission, 377 S.W.2d at 449.

Applying those rules, we conclude that the language of § 144.020.1(2) is clear and unambiguous when applied to the facts stipulated in this case. First, the statute plainly provides for a sales tax on receipts from amounts paid for admission to places of amusement, entertainment or recreation, as well as to games and athletic events. Next, it clearly imposes a tax on receipts from amounts paid for seating accommodations in such places. However, the statute does not stop there. It goes on to impose a tax on receipts from fees paid to or in such places. Respondents argue that when the statute refers to “fees paid to, or in” places of amusement, etc., the plain and clear meaning thereof “is that the tax should be imposed on the charge that is made for reserved seats and tables within the place of amusement after admission”. Such a meaning, argue respondents, “gives a reasoned, unstrained construction to the statute and gives full weight to the context created by the antecedent words of the subsection, i. e., ‘for admission and seating accommodations’.” In so contending, respondents, in effect, say that the words “fees paid to, or in” the place of amusement, etc., really add nothing new at all. They do not impose a tax on anything except what preceding language of the subsection already has taxed. They simply restate in different and more general language the previous direction that a tax is imposed on the amount paid for seating accommodations in places of amusement, etc. To so hold would be to say that by adding these additional words imposing a tax on “fees paid to, or in” such places, the legislature did a vain and useless thing.

In our view, this additional language is not subject to such an interpretation. The additional words say in plain language that in addition to those things already taxed in connection with any place of amusement, etc., namely, “admission and seating accommodations”, the sales tax also is imposed on such other fees as are paid to or in said establishments. That simple general language is not limited or qualified in any way. It applies to all such fees paid to or in such establishments. It says nothing about excluding therefrom any fees paid for participating in sports or events in said establishments. Giving the words used their plain and ordinary meaning, it follows that § 144.020.1(2) simply says that a three percent sales tax is imposed (1) on sums paid for admission to places of amusement, etc., (2) on amounts paid for seating accommodations therein (whether simply seats or seating at tables), and (3) on such other fees as are paid to or in places of amusement, etc. We should so interpret the statute unless, for one of the reasons advanced by respondents, a contrary result is dictated.

Respondents first argue that the Department of Revenue’s long standing administrative interpretation of the statute (1937-1974) as not taxing fees charged in places of amusement, etc., for participating in bowling should be given great weight and should result in the statute being construed as not imposing a sales tax on revenues derived from fees for participating in bowling. If we found the language of § 144.020.1(2) to be ambiguous and there was need to resort to extrinsic aids to statutory construction, this lengthy administrative interpretation, even when based, as it obviously was, on the opinion of the Attorney General dated August 21, 1937, would be considered and given appropriate weight along with such other extrinsic aids as might exist. State ex rel. Jackson County v. Public Service Commission, 532 S.W.2d 20, 28 (Mo. banc 1975). However, when a statute is clear and unambiguous, extrinsic aids to statutory construction cannot be used.

This well established rule was stated thus in Automobile Gasoline Co. v. City of St. Louis, 326 Mo. 435, 32 S.W.2d 281, 283 (1930):

“ * * * The construction of a statute by those charged with the duty of enforcing it, when it has long prevailed, while not binding upon the courts, is entitled to weight where the meaning of the statute is uncertain. * * * ”

In State ex rel. Bell v. Phillips Petroleum Co., 349 Mo. 360, 160 S.W.2d 764, 769 (Mo.1942), the court, after quoting the above, added:

“ * * * We find no ambiguity or uncertainty in this statute. * * * If section 8437, supra, is clear and unambiguous, it must be construed in accordance with its manifest intent and we may not search for a meaning beyond the statute itself. * * * ”

This rule was repeated with emphasis in Consolidated Freightways Corp. of Delaware v. State, 503 S.W.2d 1, 5 (Mo.1972), cert. denied, 412 U.S. 919, 93 S.Ct. 2732, 37 L.Ed.2d 145 (1973), in these words:

“Appellant .alleged in its petition that the Department of Revenue had uniformly interpreted the 1965 Act as applying to special fuels as well as motor fuels. It is argued that on a motion to dismiss we should consider this to be an established fact, and that this fact should be given serious consideration in construing the intent of the Act. State ex inf. Anderson v. St. Louis County, Mo., 421 S.W.2d 249, 254. However, this rule of statutory construction is applied only to statutes or constitutional provisions which are ambiguous or uncertain. State ex rel. Bell v. Phillips Petroleum Company, 349 Mo. 360, 160 S.W.2d 764, 769. We do not find the 1965 Act to be reasonably susceptible to different constructions; thus, there is no ambiguity. State ex rel. Koeln v. St. Louis Y.M.C.A., 259 Mo. 233, 168 S.W. 589, 590. Therefore, there is no occasion to apply the rule of administrative interpretation.”

Other cases so holding include State ex inf. Anderson v. St. Louis County, 421 S.W.2d 249, 254 (Mo. banc 1967); Foremost Dairies, Inc. v. Thomason, 384 S.W.2d 651, 659 (Mo. banc 1964); Lemasters v. Willman, 281 S.W.2d 580, 588 (Mo.App.1955).

The case of L & R Distributing, Inc. v. Missouri Department of Revenue, supra, cited by respondents in urging that we interpret the statute in accordance with the department’s 1937-1974 administrative interpretation, recognizes that it is when a statute is ambiguous that weight is given to prior administrative interpretation. Said case is not authority for using an administrative interpretation when the statute involved is clear and unambiguous. Id. at 378-379.

Since we have ruled that § 144.-020.1(2) is clear and unambiguous, plainly imposing a sales tax on fees for bowling paid to respondents, we hold that such interpretation is not to be affected by the earlier administrative interpretation by the department. The plain and unambiguous language of the statute cannot be made ambiguous by administrative interpretation and thereby given a meaning which is different from that expressed in clear and unambiguous language in the statute.

A second proposition advanced by respondents is that as originally enacted, the terms of the sales tax act required that it be reenacted every two years. This continued until 1953 when that requirement was eliminated. As a result, the legislature on eleven separate occasions after 1937 reenacted § 144.020.1(2), each time with exactly the same language as it contained in 1937. Respondents argue that it is presumed that the legislature was aware of the administrative interpretation by the department starting in 1937 and that by the reenactments without change in language, the legislature placed its stamp of approval on the department’s administrative interpretation that gross revenues from bowling were excluded from the sales tax and adopted such construction of the statute. Accordingly, say respondents, § 144.020.1(2) did not apply to bowling receipts.

We reject this argument. In the first place, it seeks to extend to instances of administrative interpretation a rule which has been applied on occasion after a statute has received a settled judicial construction by the highest court of a state. In such instances the court has said that if a statute which has received a settled judicial construction by the court of last resort and the legislature thereafter reenacts it, it will be presumed that the legislature knew of and adopted that construction. Examples of such cases are State ex rel. Howard Electric Cooperative v. Riney, 490 S.W.2d 1, 9 (Mo.1973); State ex rel. Smith v. Atterbury, 364 Mo. 963, 270 S.W.2d 399, 403-404 (banc 1954); and Duckworth v. United States Fidelity & Guaranty Co., 452 S.W.2d 280, 286 (Mo.App.1970). While it is not unreasonable to assume that the legislature would be aware of such judicial construction by the court of last resort, the same is not necessarily so of administrative rulings by various departments. We are unaware of any Missouri case which has extended to such situations the doctrine that by legislative reenactment the legislature is presumed to have known of, approved and adopted such administrative interpretation. It is true that in Howard Electric Cooperative the court referred to acceptance of the judicial and administrative construction of the statute but the authority cited referred only to judicial interpretation. The case is not authority for the proposition that reenactment presumes adoption of prior administrative interpretation where that interpretation is not buttressed by judicial interpretation.

It should next be noted that to hold that by the various reenactments of § 144.020.-1(2) in the 1940s and 1950s the legislature adopted the administrative interpretation that said section did not impose the tax on bowling receipts would lead to anomalous results. This necessarily would be so because in 1974, as previously noted, the Department of Revenue adopted revised Revenue Rule 49 which reinterpreted § 144.020.-1(2) as imposing a sales tax on revenues derived from fees for bowling in a place of amusement, etc. Then in 1975, the legislature reenacted § 144.020.1(2), again in the identical form in which it had existed since 1937. Sec. 144.020.1(2) RSMo Supp.1975. Adoption of the rule urged by respondents would mean necessarily that by the reenactment in 1975, the legislature now approved and adopted the administrative ruling in revised Revenue Rule 49 of April 30, 1974. Thus, by enacting identically the same language, the legislature at one time would have approved and adopted an interpretation which said no tax was due on bowling receipts in places of amusement, etc., and at another time an interpretation that such tax was imposed thereon.

A third basis advanced by respondents for interpreting § 144.020.1(2) as not imposing a tax on the bowling revenues herein involved is that the legislature failed to enact amendments to the sales tax act which would have stated expressly that a sales tax was imposed on such receipts and that the court should read into such legislative action an intent to exclude the application of the statute to receipts from bowling paid in places of amusement, etc. Reference is made particularly to two bills. One, introduced in 1939, would have extended the act to proceeds paid to participate in any amusement, entertainment, recreation, game or athletic event. A committee substitute was adopted by the House of Representatives but failed of adoption in the Senate. The other bill, introduced in 1961, would have amended § 144.010.1(1) to say that the term “admission” includes charges for participation in amusement, entertainment, sporting events, etc. It was rejected. Such legislative action, according to respondents, shows a legislative intent not to tax bowling receipts.

If § 144.020.1(2) were ambiguous, this legislative history could be considered as one of the aids to statutory construction which a court may use. However, reliance on bills not passed provides a tenuous basis for determining legislative intent. We have no legislative record in Missouri to disclose the explanation offered in committee or on the floor to aid in understanding the purpose for which the bill is introduced. Neither do we have a record of debate on the bill when it is considered. Hence, we know whether the bill was adopted or rejected but we do not know why. Under such circumstances, it is not really possible to look at the legislative record and know why the legislature rejected a proposed bill. Respondents argue that mere rejection of the proposed bills indicates an intention not to tax fees for participating in things such as bowling. However, it is arguable, as appellants contend, that the bills could have been rejected because it was felt that the language already was clear and unambiguous and no amendment was necessary. Appellants point out that since the issuance of revised Revenue Rule 49, there have been several bills introduced which would have provided specific exemptions for receipts from such things as participating in bowling, etc. These have not passed. Appellants argue that this fact should be considered if we are going to interpret the statute on the basis of legislative action or inaction on proposed amendments to the statute.

In any event, we have ruled previously that § 144.020.1(2) is clear and unambiguous. That being true, as we previously have noted herein, we may not resort to extrinsic aids to construction for the purpose of arriving at a meaning of the statute which differs from what we have said it plainly means.

Respondents’ fourth and final contention is that their interpretation of § 144.-020.1(2) is supported by the opinion of the Attorney General rendered August 21,1937, and that we should adopt that interpretation. To whatever extent such opinion would be considered, it is at most an extrinsic aid to construction. Since we havfe held the statute to be clear and unambiguous, we will not look to or consider such aids.

We hold that § 144.020.1(2) taxes receipts received from bowling in a commercial bowling establishment and that revised Revenue Rule 49 in so providing correctly interprets the statute. We reverse and remand with directions to the trial court to enter judgment in accordance with the views herein expressed.

All concur.

      . Sec. 144.020.1(2) reads as follows:
      “1. A tax is hereby levied and imposed upon all sellers for the privilege of engaging in the business of selling tangible personal property or rendering taxable service at retail in this state. The rate of tax shall be as follows:

      “(2) A tax equivalent to three percent of the amount paid for admission and seating accommodations, or fees paid to, or in any place of amusement, entertainment or recreation, games and athletic events;”

      . Revised Rule 49, effective April 30, 1974, provided in part as follows:
      “Receipts from admission shall include any entrance charges, accommodations charges, and fees to gain entrance to any place of amusement, entertainment, and recreation. For example: admission to theaters, operas, concerts, shows, athletic contests and events, zoos, dances, roller and ice skating rinks, billiard and pool halls, bowling alleys, card and other games, swimming pools, golf courses, circuses, carnivals, fairs, parks, amusement parks, resorts and other recreational attractions and entertainment, including cover charges in night clubs, and other eating and drinking establishments.
      “In addition, any fees or charges received for the use of any facility or property in any place of amusement, entertainment, or recreation, such as pinball machines, and any other coin operated amusement devices, rides in carnivals and horseback riding, shall be subject to sales tax. Receipts from fees or charges paid for participating in any activities in any place of amusement, entertainment or recreation, such as billiards, pool, bowling, and games, shall also be subject to sales tax.
      “The enumerated examples are not all inclusive but serve only to illustrate the types of activities and events to be taxed.” (Emphasis supplied.)

      . “Important Changes in Rules and Regulations Relating to the Missouri Sales Tax Act as Amended” (1939-40), an exhibit in this case, states at p. 14:
      “By an opinion of the Attorney General’s office August 21, 1937 the original Special Rule No. 27 is changed, and from and after September 1, 1937, charges made for playing billiards, pool, bowling . . . are not subject to the 2% Sales Tax.”
      Thereafter, until revised Rule 49 became effective on April 30, 1974, rules of the Department did not call for sales taxes on bowling receipts in places of amusement, entertainment or recreation.
      On May 10, 1974, the Attorney General issued Opinion No. 202, which withdrew the earlier opinion of August 21, 1937, as erroneous and reinterpreted § 144.020.1(2) as imposing a sales tax on receipts from bowling, etc., paid in places of amusement, etc.

      . For discussion as to the extent to which an opinion of the Attorney General is to be given effect, see L & R Distrib., Inc. v. Mo. Dep’t of Revenue, 529 S.W.2d at 378; Mesker Bros. Indus, v. Leachman, 529 S.W.2d 153, 158 (Mo. 1975); Gershman Inv. Corp. v. Danforth, 517 S.W.2d 33, 34-36 (Mo. banc 1974).


author: DONNELLY, Judge.

text:
    Albert L. BLEVINS and Linda Blevins, Plaintiffs-Respondents, v. CUSHMAN MOTORS, a Division of Outboard Marine Corp., a Corporation, Defendant-Appellant.
    No. 59807.
    Supreme Court of Missouri, en banc.
    May 10, 1977.
    Rehearing Denied June 14, 1977.

      Joseph A. Sherman, Kansas City, for defendant-appellant.
    James S. Formby, Kansas City, for plaintiffs-respondents.
   DONNELLY, Judge.

This is a products liability case. The facts of the case and that portion of this opinion which pertains to Cushman’s first and second contentions on appeal (I and II) were written in this Court. The balance of the opinion was written by Judge Wasser-strom in the Court of Appeals and is adopted here, substantially as originally written, without quotation marks.

On the afternoon of July 15, 1969, plaintiff, Albert L. Blevins, and his occasional golfing partner and former co-worker, Kermit Maxwell, met to play golf at Stayton Meadows Golf Course. After splitting between them the rental cost of a three-wheeled golf cart manufactured by Cush-man, the two men completed the first nine holes of an intended eighteen holes of golf. The first three holes of the back nine were played with the aid of the golf cart without incident.

At the thirteenth tee, Maxwell began play by slicing his tee shot slightly to the right. Plaintiff’s first shot off the tee hooked somewhat to the left. The two men proceeded in the cart to Maxwell’s ball, and he made his second shot. Maxwell then drove the two of them in the cart toward the plaintiff’s ball. The cart was steered in a gradual turn toward its destination at a speed estimated by plaintiff to be approximately nine miles per hour. While the turn was being executed, Maxwell lifted his foot from the accelerator causing the speed of the cart to decrease to perhaps as low as five miles an hour. As the vehicle neared plaintiff’s ball, the cart was driven out of the bright sunlight onto a shaded area of the golf course on which a light dew was present. Upon entering the shaded area the cart “skidded, tipped and turned over.” The cart slid to the left “like being on ice” for ten to fifteen feet before overturning.

As the golf cart overturned, Maxwell was thrown clear; however, plaintiff, despite his attempt to jump from the cart, fell to the ground on his back and was pinned beneath the rolling cart when it came to rest.

Plaintiff, Albert L. Blevins, initiated this action for personal injuries in the Circuit Court of Jackson County in which his spouse also sought damages for loss of consortium resulting from the accident involving the golf cart manufactured by Cush-man. During the course of the trial, the defendants, other than Cushman, reached a settlement with the plaintiffs.

The case was submitted to the jury on the theory of strict liability in tort as expressed in MAI 25.04. The jury returned a verdict of $73,000 for Albert and $21,000 for his spouse, Linda. Judgment was entered in the respective amounts of the two verdicts, reduced by $1,500 each to reflect payments made by those defendants who set-tied. Following entry of judgment for the plaintiffs, Cushman perfected an appeal to the Court of Appeals, Kansas City District, where the judgment was affirmed. The cause is now before this Court to be decided as if on original appeal. Mo.Const. Art. V, § 10.

I

On appeal, Cushman’s first contention is that the trial court erred in overruling its motion for directed verdict for the reason that plaintiffs failed to make a submissible case. Among the several alternative arguments posited by Cushman, three challenge the submissibility of plaintiffs’ case under theories of warranty and negligence. Since plaintiffs submitted a case based on strict liability in tort to the jury under MAI 25.04, it is unnecessary to address the sufficiency of the evidence to establish a submissible case under other theories.

With regard to the submissibility of plaintiffs’ case on the theory of a strict liability in tort, Cushman mounts the following attacks: (1) strict liability in tort is inapplicable in cases in which the alleged defect is in the design of the product; (2) even assuming strict liability in tort is applicable to defective design cases, the proof necessary to establish a defective design in strict liability in tort is essentially the same as that required to prove a design defect in negligence; and (3) further assuming that strict liability applies in this case, the golf cart should be viewed as a product which is “unavoidably unsafe.”

First, we cannot sustain Cushman’s contention that strict liability in tort does not apply to defective design cases. In Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362, 364 (Mo.1969) we recognized the concept of strict liability in tort as stated in 2 Restatement, Law of Torts, Second, § 402A. We adopted this new cause of action in Keener “ ‘to insure that the costs of injuries resulting from defective products are borne by the manufacturers [and sellers] that put such products on the market rather than by the injured persons who are powerless to protect themselves.’ Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 901, 13 A.L.R.3d 1049.” Significantly, in Greenman, the product involved was found to be unsafe due to its defective design.

In Keener, this Court established that an action sounding in strict liability in tort may lie to recover for injuries caused by a product which is unreasonably dangerous as manufactured. It is only logical that in this case we permit an action in strict tort liability to obtain for the recovery for injuries caused by a product which is unreasonably dangerous as designed because,

“[Tjhere is no rational distinction between design and manufacture in this context, since a product may be equally defective and dangerous if its design subjects protected persons to unreasonable risks as if its manufacture does so.” Pike v. Frank G. Hough Co., 2 Cal.3d 465, 85 Cal.Rptr. 629, 636, 467 P.2d 229, 236 (banc 1970).

Already in Missouri, the Court of Appeals has recognized that defective design cases are cognizable under strict liability in tort. Higgins v. Paul Hardeman, Inc., 457 S.W.2d 943 (Mo.App.1970); See also, Hoppe v. Midwest Conveyor Co., Inc., 485 F.2d 1196 (8th Cir.1973). In fact, the clear majority of jurisdictions which have confronted the issue have applied strict liability in tort to defective design cases. Mather v. Caterpillar Tractor Co., 23 Ariz.App. 409, 533 P.2d 717 (1975); Cronin v. J. B. E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153 (1972); Bradford v. Bendix Westinghouse Automotive Air Brake Co., 33 Colo.App. 99, 517 P.2d 406 (1973); Rindlisbaker v. Wilson, 95 Idaho 752, 519 P.2d 421 (1974); Allen v. Kewanee Machinery and Conveyor Co., 23 Ill.App.3d 158, 318 N.E.2d 696 (1974); Phipps v. General Motors Corp., 363 A.2d 955 (Md.App.1976); Brandenberger v. Toyota Motor Sales, U. S. A., Inc., 162 Mont. 506, 513 P.2d 268 (1973); Bexiga v. Havir Mfg. Co., 60 N.J. 402, 290 A.2d 281 (1972); Deem v. Woodbine Mfg. Co., 89 N.M. 50, 546 P.2d 1207 (N.M.App.1976); Seibel v. Symons, 221 N.W.2d 50 (N.D.1974); Phillips v. Kimwood Machine Co., 269 Or. 485, 525 P.2d 1033 (1974); Engberg v. Ford Motor Co., 205 N.W.2d 104 (S.D.1973); Pizza Inn, Inc. v. Tiffany, 454 S.W.2d 420 (Tex.Civ.App.1970); Seattle-First National Bank v. T. E. Tabert, 86 Wash.2d 145, 542 P.2d 774 (banc 1975); Arbet v. Gussarson, 66 Wis.2d 551, 225 N.W.2d 431 (1975).

Our acceptance of strict liability in tort in defective design cases “eliminates proof as to violation of the standard of reasonable care” with respect to the adoption by a manufacturer of a particular product design. Hoppe, supra, 485 F.2d at 1199. We reaffirm that a product may be found to be in a “defective condition unreasonably dangerous to the user or consumer or to his property,” and, therefore, actionable under § 402A, when the product is found to be “defective and dangerous when put to a use reasonably anticipated” by the manufacturer. Keener, supra, 445 S.W.2d at 366.

Second, with reference to the application of strict liability in tort to defective design cases, Cushman maintains that in such cases strict liability and negligence are essentially the same; thus, that Cushman’s conduct should be examined in the light of traditional negligence. Admittedly, in one jurisdiction which has adopted strict liability in tort in defective design cases, it has been conceded that the application of strict liability or of negligence will usually produce the same result. E. g., Cronin v. J. B. E. Olson, Corp., supra, 501 P.2d at 1162.

Nonetheless, there exists an important distinction between the two concepts. In negligence cases the duty owed is based on the foreseeable “or reasonable anticipation that harm or injury is a likely result of acts or omissions.” Hull v. Gillioz, 344 Mo. 1227, 130 S.W.2d 623, 628 (1939); Taylor v. Hitt, 342 S.W.2d 489, 494 (Mo.App.1961). On the other hand, strict liability in tort is based in part on the foreseeable or “reasonably anticipated” use of the product, Keener, supra, 445 S.W.2d at 366, rather than on the reasonably anticipated harm the product may cause.

Stated another way, the difference between negligence and strict liability in tort in defective design cases,

“ * * * is in strict liability we are talking about the condition (dangerousness) of an article which is designed in a particular way, while in negligence we are talking about the reasonableness of the manufacturer’s actions in designing and selling the article as he did. The article can have a degree of dangerousness which the law of strict liability will not tolerate even though the actions of the designer were entirely reasonable in view of what he knew at the time he planned and sold the manufactured article.”

Phillips v. Kim wood Machine Co., 269 Or. 485, 525 P.2d 1033, 1037 (banc 1974); Roach v. Koronen, 269 Or. 457, 525 P.2d 125, 129 (1974).

Finally, as to Cushman’s contention that the golf cart should be viewed as a product which is “unavoidably unsafe,” the following explanation in comment k to § 402A is pertinent:

“k. Unavoidably unsafe products. There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.”

In our opinion, golf carts are not “incapable of being made safe for their intended and ordinary use.”

Plaintiffs submitted their case on a theory of strict liability in tort. “To establish the manufacturer’s liability it was sufficient that plaintiff proved that he was injured while using the [golf cart] in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware that made the [golf cart] unsafe for its intended use.” Green-man, supra, 27 Cal.Rptr. at 701, 377 P.2d at 901. According to the evidence, the stability of the cart could be improved by widening the wheel base, by use of four wheels, by lowering the center of gravity, by increasing its minimum turning radius, and by decreasing its maximum speed. On the basis of the evidence adduced, we believe plaintiffs made a submissible case.

Plaintiffs’ statement of their case against Cushman was contained in Counts VII and VIII of plaintiffs’ First Amended Petition. Count VII pleaded implied warranty. See Morrow v. Caloric Appliance Corporation, 372 S.W.2d 41 (Mo. banc 1963). Count VIII pleaded negligence. Cushman claims that the submission by plaintiffs of their case to the jury on a theory of strict liability under Keener, supra, constituted an impermissible substitution of a cause of action not pleaded.

In the abstract, Cushman’s contention has merit. In Keener, we pointed out that the main advantage to be gained from adopting the Restatement theory “could be release from the shackles of warranty language.” While the difference between Morrow and Keener is not one of substance, they do not represent the same cause of action. However, in this ease, Cushman’s contention cannot be sustained. We must conclude from the record that all parties understood the Keener concept was being pursued by plaintiffs and that the Keener issues were tried by implied consent of the parties. Rule 55.33(b).

Ill

For its third point Cushman challenges the admission of the testimony of plaintiffs’ expert witness concerning tests made by him and opinions reached by him based on those tests. Cushman objects that one type of test made by that expert was not under substantially similar conditions to those which existed at the time and place of the accident in question, thereby depriving the test of a proper foundation.

Plaintiffs’ expert, Jon Shannon McKib-ben, qualified to the trial court’s satisfaction as an engineer expert in the testing of automotive vehicles with respect to safety design. He attempted to obtain a Cushman cart, Model No. 881602, which was the model number of the cart in which Albert Blevins was injured, but was unable to do so. He did obtain a Cushman cart, Model No. 898102, which McKibben then subjected to a number of different tests. One of these tests consisted of McKibben driving the cart himself, thereby making certain subjective observations. He also conducted a “tilt test” on the basis of which he made certain mathematical computations in order to arrive at a determination of the center of gravity of the cart and a projection concerning the rate of speed and the degree of curve at which the cart would overturn. He then also conducted a series of “dynamic” tests which consisted of operating the cart at various speeds and putting it into a turn to ascertain at what point an overturn would occur. In addition, McKibben made a personal inspection of hole number 13 at Stayton Meadows Golf Course in Kansas City. On the basis of all these, McKibben gave his opinion that the cart was defective and unsafe.

Cushman objects that the dynamic experiments should not have been admitted into evidence and that McKibben’s opinion based at least in part thereon should not have been permitted because of the following differences between the conditions under which McKibben conducted these tests as compared to the conditions at Stayton Meadows Golf Course on July 15, 1969: McKibben used a different model of Cush-man cart; there were no golf bags on the back of the golf cart when tested; the cart carried two anthropometric dummies instead of human beings; the ground in California where the tests were made was harder and the turf more coarse than that at Stayton Meadows; the test cart was operated by remote control which required a steady rate of speed and putting the cart into a full turn; and the California test area was dry as compared to the wetness from dew on the portion of the Stayton Meadows Golf Course where the overturn occurred.

Plaintiffs answer these objections by pointing to McKibben’s testimony that he had the plans and specifications for both of the Cushman Models 881602 and 898102, that he compared them and there were no differences which would be of any significance in terms of performance; that the anthropometric dummies were as close as science could come to duplicating the human body in a crash vehicle; that while each of the dynamic tests had to be at a steady rate of speed, more than one test was made at more than one rate of speed; that although the cart was put into a turn by mechanical remote control, the cart could be observed at different rates of turn as the cart described a progressively more narrow arc and that the cart actually overturned at an early point after each turn commenced; that the absence of golf bags on the back of the cart was actually a factor to Cushman’s advantage since the presence of golf bags would have raised the center of gravity even higher; and that the other differences complained of by Cush-man were all differences which were to Cushman’s advantage and of which it therefore should not be heard to complain.

The law is well settled that experimental evidence is admissible when the experiment was made under conditions substantially similar in essential particulars to the conditions which prevailed at the time of the occurrence in suit, and that the conditions need not be identical. Faught v. Washam, 329 S.W.2d 588, 598 (Mo.1959); Wilcox v. St. Louis-Southwestern Railroad Co., 418 S.W.2d 15 (Mo.1967); Klaesener v. Schnucks Markets, Inc., 498 S.W.2d 555, 557 (Mo.1973). The similarities must be in those circumstances or conditions as might supposedly affect the result in question; and the degree of similarity or difference should be judged in the light of the fundamental principle that any fact should be admissible which logically tends to aid the trier in determination of the issue. Ward v. Penn Mutual Life Insurance Co., 352 S.W.2d 413, 425 (Mo.App.1961). In determining this question of sufficient similarity, a substantial measure of discretion must be accorded to the trial judge. Klaesener v. Schnucks Markets, Inc., supra; Lietz v. Snyder Manufacturing Co., 475 S.W.2d 105, 107 (Mo.1972); Lynch v. Railway Mail Association, 375 S.W.2d 216 (Mo.App.1964); Ward v. Penn Mutual Life Insurance Co., supra. The trial court in this case determined that the test conditions were sufficiently similar to those which obtained at the time and place of the accident and no abuse of that exercise of discretion has been made to appear.

IV

As its next point, Cushman contends that the court erred in permitting plaintiffs’ attorney to argue that Cushman had a right to a pretrial physical examination and that the jury could infer that such an examination would not have produced any testimony different from that given by plaintiffs’ doctors. Cushman had in fact been accorded an examination of Albert Blevins by a doctor of its choice, Dr. Ellfeldt. Through inadvertence plaintiffs’ lawyer neglected to get this fact into evidence. At the close of all the evidence, Cushman’s attorney, in a conference held outside the hearing of the jury, requested a ruling that plaintiffs’ attorney not be permitted to make any comment on the absence of Dr. Ellfeldt.

At this conference the following colloquy occurred:

“THE COURT: All right. Any other record you gentlemen wish to make?
MR. SHERMAN: Yes, Your Honor.
Prior to this conference in chambers, I asked Mr. Formby if he intended to comment upon the absence of Dr. Howard J. Ellfeldt, who did examine for the defendants. Dr. Ellfeldt’s name has not been mentioned in evidence. It would thus be improper, and we would object and ask that the Court instruct plaintiffs’ counsel to not comment on the absence of Dr. Ellfeldt inasmuch as there’s no evidence regarding any examination by Dr. Ell-feldt.
MR. FORMBY: Your Honor, I believe the Court will recall, during the cross-examination of Albert Blevins, it was brought out that he had gone to another doctor, at the request of Mr. Sherman. I don’t believe that he mentioned his name, and I have no intention to mention his name, but I do intend to comment on the fact that he did not bring in the doctor who he had requested Mr. Blevins to go to see.
THE COURT: Mr. Sherman, has Mr. Formby correctly stated it? Was it brought out in direct examination that he had been to see a doctor at the direction of the defendant or at the request of the defendant, but the doctor’s name was not mentioned?”

Cushman’s attorney then made specific reference to the transcript as to the testimony on this point. Then the court made the following ruling:

“THE COURT: Well, I think in view of the fact that it’s not in evidence that the objection will be sustained and it’s not a proper matter for comment at the time of closing.”

In the jury argument which then followed, plaintiffs’ attorney made the following argument:

“It’s undenied, they brought no doctor into this courtroom, and they have the right to have the man examined—
MR. SHERMAN: Your Honor, this is objected to. This is not proper argument. Counsel knows full well that it isn’t. We don’t have the burden of proof in this case. The burden is on the plaintiffs. He’s arguing contrary to the law and the instructions of the Court.
THE COURT: The objection will be overruled.
MR. FORMBY: They have the right under the law, this is the law of Missouri, that every person who files a lawsuit claiming injuries, they have a statutory right to have him examined by a physician, at their request, and to call that physician into the courtroom to testify. And I'm going to tell you the only reason they didn’t do it is because any honest physician of integrity would have made a diagnosis and finding exactly like the hospital records and like Dr. Szabados.”

Cushman contends that argument was reversibly erroneous on a twofold basis. It argues, first, that this portion of .plaintiffs’ jury argument defied the ruling made by the trial court in chambers. However, plaintiffs’ counsel states in his brief that he honestly understood the court’s ruling to mean only that he should not make specific reference to Dr. Ellfeldt by name. The trial judge is the one who made the ruling and he was in a much better position than is this court to determine whether plaintiffs’ counsel defied the ruling made in chambers and if so what corrective measure, if any, was required. If this were all that was involved in this point, there clearly would be no occasion for interference by this court with the disposition made by the trial court.

But Cushman says there is more. It places its principal emphasis on the provisions of Rule 60.01, under which a party may obtain a physical examination of his adversary by an order of court and which further provides that “[t]he order may be made only on motion for good cause shown * * Cushman further relies upon Stubenhaver v. Kansas City Rys. Co., 213 S.W. 144 (Mo.App.1919) and Hoffman v. Illinois Terminal Railroad Co., 274 S.W.2d 591 (Mo.App.1955), which held that it was prejudicial error for a plaintiff to argue to -the jury that the defendant has an absolute right to obtain a pretrial physical examination of the plaintiff.

Cushman urged this as one of its grounds for a new trial, and in response the trial court held as follows:

“Another claim of error was the Court’s failure to admonish plaintiffs’ counsel in final argument after objection about his statement that the defendant had the right to have the plaintiff examined by a doctor of his choosing. The Court was in error in not sustaining the objection to that remark. The Court recognizes that absent the agreement of the parties, plaintiff can only be examined by defendant’s doctor on court order. The Court’s rationale in not sustaining the objection is two-fold: First, defendant did have the plaintiff examined but did not call its doctor; second, despite case law to the contrary, this Court feels it is foolish to deny to the jury what, in reality, is true.
In the opinion of the Court, the defendant here because of the circumstances of the case had an absolute right to have the plaintiff examined and if any Court had denied defendant that right, it is believed that prejudicial error would have been committed by such denial.
In reflection, the Court believes that the objections should have been sustained because of case requirements, but it is not felt that reversible error was committed in failing to sustain the objection.”

The latter of the two points stated by the trial court could not be sustained without reconsideration of the rulings of Stuben-haver and Hoffman and reinterpretation of the provisions of Rule 60.01. However, that portion of the trial court’s reasoning was not necessary to its ruling. The first of the two reasons stated by the trial court sufficiently distinguishes the prior case law mentioned.

The facts are that Albert Blevins was the victim of a serious accident resulting in immediate, severe injury; those injuries were shown by objective evidence, including a number of X-ray pictures; plaintiffs’ medical testimony showed the extent and permanency of those injuries; all of the foregoing was undisputed by any evidence offered by Cushman; and plaintiffs made a candid disclosure of the extent of Albert’s recovery, the increase in his earning capacity as compared to what it was prior to the accident and the extent to which he can now drive 35,000 to 60,000 miles a year in the course of his work and even engages in some playing of golf. This state of the record overwhelmingly indicates the conclusion that Albert Blevins had in fact suffered the physical injuries and disabilities testified to by him, his wife and his physicians, Dr. Szabados and Dr. Snyder. In view of that, the trial judge found that the jury argument in question resulted in no prejudice to Cushman. No abuse of discretion appearing, an appellate court should not disturb that exercise of discretion. Cook v. Cox, 478 S.W.2d 678, 682 (Mo.1972).

V

For its next point, Cushman argues that the trial court erred in permitting the bailiff to give verbal instructions to the jury during their deliberations. The situation complained of came about as follows: At 2:12 p. m. the jury returned to open court. They returned two sheets of paper, one of which was signed by nine jurors who found “in favor of Albert L. and Linda Blevins, plaintiffs.” The second sheet was signed by all twelve jurors who stated that they “find in favor of Albert L. and Linda Blevins, plaintiffs. We assess Mr. Blevins’ damages at $73,000.00 and assess Mrs. Blevins’ damages at $21,000.00.” These purported verdicts failed to comply with Instruction No. 9 which required a separate verdict for or against Albert L. Blevins and a separate verdict for or against Linda Blevins.

Upon receipt of these two sheets of paper the court conferred with counsel and then stated to the jury: “I must request of you, please, to return to your jury room, and using the precise form and language of Instruction No. 9, return your verdicts in accordance with those precise words and forms. If you would do that, please.”

The jury then returned to the jury room under escort of the court bailiff. When the bailiff returned from this escort service, he reported to the judge in the presence of the lawyers, that the jurors had indicated some confusion about the form of verdict, to which the bailiff responded, “You’ll just have to read the instructions.” Some 20 minutes later, at 2:35 p. m., the jury again returned to open court, this time with two forms of verdict in precise compliance with Instruction No. 9. The first of these, signed by nine jurors, found for Albert L. Blevins and assessed damages of $73,000; the second, also signed by nine jurors, found for Linda Blevins and assessed her damages at $21,000.

Cushman objects as the gist of this point that the bailiff improperly gave supplemental verbal instructions to the jury. This approach does not fairly represent what happened. Rather than being a verbal “instruction,” the bailiff gave little more than a civil response, repeating almost exactly what the judge had already told the jury in open court and in the presence of the lawyers. Certainly what the bailiff said constituted no misdirection. Nor can it be considered misconduct, especially since the bailiff promptly reported to the judge and to the lawyers just exactly what had occurred.

In any event, this matter could not have prejudiced Cushman. The jury had already reached a decision, evidenced by the original verdicts returned at 2:12 p. m. The final verdicts were a mere correction in form and came back with precisely the same amount for each plaintiff which had been originally reported.

The cases cited by Cushman are distinguishable. A detailed discussion of them would unnecessarily extend an already lengthy opinion.

VI

Cushman’s next point complains of the admission into evidence of Exhibits 18 and 19, consisting of Cushman advertisements which had appeared in a golfing magazine. These advertisements read in part as follows:

“Talk about a turned on ride. Smooooth. With a beefier, low-slung 3-point rubber suspension. New rubber suspension between power frame and main frame lets the GC tool through turns with super ease, super safety, super stability. Low ground-hugging center of gravity makes for wide stance, razor-honed handling. Pat, ground-gripping, turf-protecting 9.50 X 8 Terra Tires are standard. This baby floats the course.”

Maxwell, Albert Blevins’ fellow golfer, who had been driving the cart at the time of the accident, testified that he had seen and read Cushman advertisements similar to these exhibits. Cushman in its answer referred to Maxwell as “plaintiff’s agent, servant, employee and joint venturer.”

Cushman argues principally under this point its alleged distinction between a cause of action based upon warranty as opposed to a cause of action based upon strict liability in tort. It says that while the advertisements would have been admissible under the theory of warranty, they are not relevant to strict liability. This purported distinction has already been fully discussed under Point II of this opinion, which refuses to accept Cushman’s position in this regard.

In any event, the advertisements represented by Exhibits 18 and 19 are plainly relevant under the strict liability submission. The instruction under this theory, MAI 25.04, requires the plaintiff to show and the jury to find that the product m question was put to “a use reasonably anticipated.” The advertisement in question not only made the type of use to which Albert Blevins and Maxwell put the cart “reasonably anticipated,” but in addition that type of use was encouraged and “super safety” in doing so was specifically assured.

Moreover, Cushman had available, pleaded and attempted to prove, an affirmative defense of contributory fault. The assurances contained in the Cushman advertising were relevant as showing a justified use and reliance by the driver Maxwell and as tending to show that he was lulled by this advertising into a sense of security.

The contention by Cushman that these exhibits were inadmissible as hearsay has been considered and found without merit. These exhibits were identified and proved by Cushman's answers to interrogatories submitted by plaintiffs, and hence the exhibits are not within the hearsay preclusion.

VII

Cushman next assigns as error the admission of portions of the deposition of Robert D. Von Seggern as admissions against interest. The principal basis for this objection is that the deponent had not been shown to be authorized to make admissions on behalf of Cushman.

When plaintiffs submitted interrogatories concerning the design, construction and performance of the Cushman golf cart, the answers came back to them signed by Von Seggern as the Cushman Chief Engineer. Plaintiff desired further information and explanations and therefore took Von Seg-gern’s deposition. Statements appearing in that deposition, pertaining to the design, testing and performance of the carts, constituted the subject matter now in question.

The fact that Cushman itself designated Von Seggern as the one to answer questions in these respects fully answers the question of whether Von Seggern had that authority. His designation for the purpose of answering interrogatories made his similar answers on deposition also within the scope of this authority.

Cushman attempts to distinguish the answers to interrogatories from the answers given on deposition by saying that the “factual matters” stated in answers to interrogatories “are a far cry from any admission of liability or intonation of liability.” The vice of this attempted distinction is that the answers on deposition were just as much “factual matters” as were the answers to interrogatories.

Cushman also argues that plaintiffs’ use of the term “admissions against interest” was prejudicial to it. In support, it points to the recognized distinction between admissions by a party and declarations against interest by a non-party. Cushman contends that by tacking on the words “against interest” to the concept of admissions, plaintiffs were taking an unfair and prejudicial advantage before the jury. The trouble with this argument is that a statement could not very well be an “admission” unless it were against interest. The term “admission” carries the connotation in everyday usage that it is contrary to the advantage of the one making the statement. Accordingly, the use of the additional phrase “against interest” could have created no prejudice in the minds of the jury which would not otherwise have been carried by the bare term “admission.”

VIII

Cushman’s next point is that the trial court erred in not granting a new trial because the verdict was so excessive as to establish bias and prejudice by the jury. To put this point into perspective requires a description of the injuries to Albert Blevins.

When the cart upset and came down on Blevins, he was in distress as he lay under the cart with his feet mashed back over his head; he was unable to breath; he could inhale but he could not exhale. His condition was diagnosed as pneumothorax (collapse) of the left lung and his life was despaired of for several days during which he was kept under intensive care in the hospital.

He also received a twisting injury to the spine which resulted in compression fractures of the 11th and 12th dorsal vertebrae and the first lumbar vertebra and a dislocation of the costovertebral joints. He sustained fracture of the sternum which healed with a prominence or palpable ridge. Four of the fractured vertebrae fused together and they have become ossified. There was wedging of the various vertebrae with resulting angulation or dorsal prominence which has been a source of discomfort. Dr. Szabados testified that Blevins had made maximum recovery at the time of his examination and that conditions would grow worse with aging. Blevins was an inch shorter at the time of trial then he had been at the time of the accident. His life expectancy at the time of trial was 32.18 years.

Blevins testified that he could no longer play with his children or go on overnight Boy Scout trips with his son. He formerly did lawn and yard work and tied tomato vines but can no longer do so. If he leans over at an angle for more than a minute or two his back gets a numb sensation. He can no longer help his wife with housework. He has difficulty in sleeping. He cannot put on his shoes without a long shoe horn and cannot cut his toenails. He cannot attend church regularly because the wooden pews are uncomfortable to the dorsal prominence in his back.

His work requires considerable driving but this causes him distress and discomfort and sometimes he has to stop short on a trip and check into a motel. Although he is still able to play 4 or 5 rounds of golf a season, he has been unable to bowl since the accident. He can assume a normal position for sexual intercourse for only a very, very short period of time.

Cushman concedes that there are two different objections which can be made against a jury verdict. One is that it is merely excessive, and in that case the verdict may be cured by remittitur. The second type of objection is that the verdict is excessive as the product of bias and prejudice on the part of the jury; and in this case the excessiveness cannot be cured by remittitur, but requires a new trial. Cush-man here makes only the second objection and pins its entire claim to relief under this point on the claim of bias and prejudice requiring the drastic relief of a new trial.

It is firmly settled that “ ‘the mere size of a verdict — the fact that it may be excessive — does not in and of itself establish that it was the result of bias or passion and prejudice * * *, without showing some other error committed in the trial' ” Cline v. Carthage Crushed Limestone Co., 504 S.W.2d 102, 1. c. 116 (Mo.1973) and cases there cited. In order to show such “other error,” Cushman relies upon the alleged erroneous closing argument pertaining to the right to call a physician, the bailiffs action in allegedly interfering with the jury’s deliberations and the alleged punitive damage argument. These matters are discussed respectively under Points IV, V and X of this opinion and in each instance the claim of error is rejected. Accordingly, these claims cannot constitute “other error” for the purpose of satisfying the rule stated by Cline.

The conclusion reached in the Cline opinion at 504 S.W.2d 1. c. 117 is equally applicable in the present case:

“After considering the matter the trial court approved the amount of the verdict. Considering the broad discretion allowed the jury in fixing the amount of an award; the fact that the verdict had the approval of the trial judge, and considering all of the evidence on the question of damages in the light most favorable to the verdict, we cannot say that the amount awarded shocks the conscience of the court or conclude that the broad discretion granted the jury and trial court has been arbitrarily exercised and abused. Under the rulings in Huffman v. Young, 478 S.W.2d 332 (Mo.1972); Long v. Hooker, 443 S.W.2d 178 (Mo.1969), and related cases, the verdict of the jury under these circumstances is conclusive on appeal.”

IX

Cushman next assigns error in that the trial court failed to reprimand counsel with respect to a remark in the course of closing jury argument. The trial incident complained of appears in the record as follows:

“But now you will have some idea, Mrs. Smith and gentlemen, if you ever become a victim—
MR. SHERMAN: Now, if the Court please, this is objected to. This is highly improper and prejudicial, this type of argument, and prohibited by the Supreme Court rules.
THE COURT: The objection will be sustained.
MR. SHERMAN: I request that the jury be asked to disregard that remark and that counsel be admonished not to indulge in that type of remark again.
THE COURT: Yes. The jury will disregard the last remark.”

It will be noted that the trial court sustained Cushman’s objection to the incom-pleted remark made by plaintiffs’ counsel and also ordered the jury to disregard that incompleted remark. All that is left for Cushman to complain of is the failure of the trial court to give the last item of relief asked by Cushman, namely that plaintiffs’ counsel be admonished.

The decision as to what action is appropriate to remedy errors made in closing argument lies very largely within the judgment of the trial court. As stated in Wilkins v. Cash Register Service Co., 518 S.W.2d 736, 1. c. 753 (Mo.App.1975), “the matter of reprimanding counsel is discretionary with the trial court.” The failure to reprimand did not constitute an abuse of discretion which would warrant reversal of the judgment. The situation in Faught v. Washam, 329 S.W.2d 588 (Mo.1959), the sole case relied upon by Cushman, was wholly different from that here and Faught is not controlling.

X

Cushman next assigns as error that the trial court permitted plaintiffs’ counsel to argue “if you want the corporate giant to react, you take away a little of that profit and he’ll notice that. He’ll make some changes when you begin to do that.” Cushman contends that remark did not pertain to any proper element in the case and was an effort to argue punitive damages. Fatal to this contention is the fact that Cushman made no objection at the time of the argument of which complaint is now made. The objection was therefore waived.

Cushman asks that this claim of error be reviewed as “plain error” under Rule 79.04 (now Rule 84.13[e]). The argument in question did not produce any manifest injustice or miscarriage of justice within the requirement of that exception. Sandy Ford Ranch, Inc. v. Dill, 449 S.W.2d 1 (Mo.1970); Stevens v. Wetterau Foods, Inc., 501 S.W.2d 494 (Mo.App.1973); Kallenbach v. Varner, 502 S.W.2d 446 (Mo.App.1973).

XI

Finally, Cushman urges that the trial court erred in not granting a new trial because of the cumulative effect of the matters heretofore discussed. Each of the other ten specific assignments of error have already been individually considered and ruled adversely to Cushman. Those assignments have no greater effect collectively.

Cushman says that the opinion in Faught v. Washam, supra, controls. The factual situation in Faught was so utterly different that the ruling there has no application here.

The judgment is affirmed.

SEILER, C. J., MORGAN, BARDGETT, HENLEY and FINCH, JJ., and FLANI-GAN, Special Judge, concur.

RENDLEN, J., not sitting.

      . In Keener, 445 S.W.2d at 364, appears an error in the quotation from 2 Restatement, Law of Torts, Second, § 402A. The words “reasonably dangerous” should read “unreasonably dangerous.”