author: DIXON, Presiding Judge.

text:
    Harold RICKETTS, Plaintiff-Respondent, v. KANSAS CITY STOCK YARDS OF MAINE, a corporation, Defendant-Appellant.
    No. KCD 26956.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.
    Motion for Rehearing and/or Transfer Denied June 1, 1976.
    Application to Transfer Denied July 12, 1976.

      Joe W. Coleman, Leonard A. O’Neal, Kansas City, for defendant-appellant.
    M. L. Kodas, James C. Logan, Kansas City, for plaintiff-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

This is the second appeal of plaintiff’s common law action against the defendant for injuries received by plaintiff while engaged in employment as a laborer by defendant. Plaintiff’s injuries were received when a portion of a concrete gutter being removed by plaintiff and fellow workers fell upon him. Plaintiff received a jury award of $150,000 on the second trial, and defendant appeals. The first trial resulted in a jury verdict for $125,000 which was reversed on appeal by the Supreme Court for error in the damage instruction. The opinion on the first appeal is reported in 484 S.W.2d 216 (Mo. banc 1972).

Defendant company has briefed six points of claimed error, each with several subpoints. These points are unreasonably prolix and argumentative, so much so as to verge on violation of Rule 84.04(d). To keep this opinion within reasonable limits of length and intelligibility, they will be paraphrased at the beginning of each section of the opinion.

Generally stated, they are claims of error in the admission and exclusion of evidence, erroneous argument by plaintiff, erroneous exclusion of defense arguments, failure to order remittitur and error in the principal instruction.

As noted, the plaintiff was injured when a large piece of concrete gutter fell upon him as he was climbing to the scaffold erected by defendant to permit the plaintiff and his fellow workmen to remove the gutter. A detailed statement of the facts appears in the prior Supreme Court opinion, and there is so little variance in the evidence presented in the two trials that reference may be made to the earlier opinion for a detailed statement of the facts. In the discussion of the points raised, the eviden-tiary references will be to the evidence presented in the second trial.

I.

Defendant’s first claim of error related to opening statement and evidence of the plaintiff referring to the defendant company’s rejection of the Missouri Compensation Act and the failure of defendant to elect coverage under the Kansas Compensation Act.

Some procedural background is necessary for the resolution of this point. On the Friday prior to the start of the trial, there was an extended off-the-record conference between the court and counsel. As appears from the record made on the Monday the trial commenced, there had been a sharp dispute as to the availability to the defendant of the defenses of contributory negligence and assumption of the risk, both of which defenses having been pled in the answer remained in the case. The colloquy between court and counsel also indicates that the issue of the proof of rejection of the Missouri Compensation Act and the election under the Kansas Act also was discussed at the Friday conference. The relation between the Acts and the defenses is that the defenses are denied if defendant rejected the Missouri Act and elected not to come under the Kansas Act. The court in the colloquy indicated that a stipulation had been filed in the prior trial that removed the issues of coverage under the Acts, but that the defendant had indicated such a stipulation would not be made in the pending trial. The trial court thus stated he expected evidence to be offered by the plaintiff on the issue of the rejection of Workmen’s Compensation Acts and cautioned the plaintiff not to make any effort to show or imply that this was anything but a proper exercise of defendant’s rights.

After that statement by the court reflecting the court’s understanding of the position of the parties, the defendant then attempted to amend the pleadings to remove the issues of contributory negligence and assumption of risk. The request of defendant at that time was to obtain a ruling on the motion for leave to amend. Simultaneously, the defendant had offered to admit the allegations of paragraph 2 of plaintiff’s petition, again by amendment of the pleadings, thus admitting its rejection of the Missouri Act. No corresponding offer was made to delete the pleading that defendant was subject to the Kansas Act, and no admission thereto was offered.

After this colloquy, the court denied the motion to amend. The plaintiff offered, and the court received over defendant’s objection, the testimony of the Directors of Workmen’s Compensation of the States of Kansas and Missouri to the effect that the defendant had rejected the Missouri Compensation Act in 1927 and failed to elect to be covered by the Kansas Compensation Act since its adoption. This evidence followed an assertion by plaintiff in opening statement that such evidence would be forthcoming, likewise objected to by defendant.

Defendant’s argument on this point is suffused with the trial judge’s reasons for the admission of the evidence. Those reasons advanced by the trial court as support for the ruling need not be of concern here. The ruling if it be right, even if erroneously arrived at, will not be disturbed. Edgar v. Fitzpatrick, 377 S.W.2d 314 (Mo. banc 1964); Dill v. Poindexter Tile Company, 451 S.W.2d 365 (Mo.App.1970), and Commercial Union Ins. Co. v. Farmers Mut. Fire Ins. Co., 457 S.W.2d 224 (Mo.App.1970).

Likewise, the issues raised and argued as to the propriety of the plaintiff’s pleading the rejection of the Workmen’s Compensation Act need not be considered or decided. Whatever the merits of the plaintiff tendering the issue by the anticipatory pleading of the defendant’s rejection, the fact remains the defendant elected to plead over and tender the issue. The fundamental issue is the admissibility over the objections made.

The precise objection was that the evidence was “irrelevant to any issue,” that “it was strictly a matter for the court” and “relates to no issue to be submitted to the jury.” Defendant also asserted that such evidence was “prejudicial” and its only purpose was to “biasing and prejudicing the jury.”

The action of the trial court in overruling the motion to amend the pleadings is not attacked by defendant, nor could it be successfully attacked. The action of the trial court in ruling such a proffered amendment on the day of trial is discretionary. Boling v. State Farm Mutual Automobile Ins. Co., 466 S.W.2d 696 (Mo.1971); Kessler v. Reed, 481 S.W.2d 559 (Mo.App.1972). In the circumstances of this case, no abuse of discretion appears. The defendant on the Friday conference had remained adamant in refusing to amend or stipulate. The defendant’s tardy recognition of the facts and the effect of the denial of the rejection of the Missouri Compensation Act cannot be said to convict the trial court of an abuse of discretion.

Shorn of issues not properly raised and of the issues not necessary for decision, the question becomes a simple one of relevancy. The trial court must rule on the admission of evidence in the posture of the case at the time the evidence is offered. State ex rel. State Highway Commission v. Heim, 483 S.W.2d 410, 414 (Mo.App.1972). When the evidence was offered, the rejection of the Missouri Act and the election under the Kansas Act were live issues in the case. The evidence offered was clearly relevant on those issues.

What this boils down to is an attempt by the defendant to equivocate on the issue in the pre-trial stages and force the plaintiff to his proof in the hope that this would somehow infuse error in the case. The defendant’s belated request that the trial court hear this evidence and rule upon it as a matter of law has the same hollow ring. If defendant wished to keep this evidence from the jury, it could have simply stipulated as in the first trial and in any event have timely filed an admission.

It follows that defendant’s claimed error of mention of such evidence in the plaintiff’s opening statement also must fail. If the evidence was admissible, it was appropriate for plaintiff to set forth in the opening statement what the proof would show. The objection made was only that defendant intended to object to the evidence itself and in any event defendant, in the two pages devoted to its point of error, never mentions the trial court’s action on opening statement as part of the error complaint of.

Defendant also complains that the plaintiff raised the matter of the rejection by defendant in final argument. No objection was made at the time, and the matter is thus not preserved. Defendant in its brief gives a transcript reference to the objection made to plaintiff’s opening statement. The objection was not a continuing one. The trial judge’s remark that the objection would apply to any other remarks on the subject was clearly intended to preserve the objection to any other such remarks in the opening statement. In no realistic sense was the trial court’s remark related to a matter which occurred over one thousand transcript pages later in the trial in the final argument. Likewise, the evidence was in the case, and no motion to withdraw or instruction withdrawing it was offered by the defendant when the case went to the jury. The plaintiff did not elaborate on the simple statement of the nonexistence of any right to compensation benefits as being the reason for the common law action. No error appears.

II.

Defendant’s second claim of error may be paraphrased as follows:

1. It was error to sustain an objection to defendant’s proffered testimony that plaintiff was warned to stay from underneath the gutter, said testimony being an element of defendant’s defense that its method of removing the gutter was non-negligent.

2. It was error to sustain plaintiff’s objection to defendant’s offer of proof that plaintiff had admitted he was aware of the possible danger the gutter might fall because plaintiff had put in issue plaintiff’s inexperience and defendant’s superior knowledge.

The position of defendant as to the exclusion of the evidence of warning is best understood by taking the exact language of defendant’s argument:

“Defendant contends this evidence should have been received to show warnings given, and that defendant’s method included express directions to plaintiff not to do the very act which caused his injury.” “. . . here where plaintiff was in a position where he was distinctly told not to be, then to prevent defendant from showing this evidence, is making defendant an insuror [sic] against plaintiff’s own negligence as opposed to merely placing upon defendant the burden of providing plaintiff a safe place to work.”

Plaintiff counters by saying that such evidence is solely and simply another effort to inject contributory negligence or assumption of the risk as defensive elements in the case.

In support of its argument, defendant urges Willis v. Skinner et al., 94 Kan. 621, 147 P. 60 (1915); Uhlrig v. Shortt, 194 Kan. 68, 397 P.2d 321 (1964); Gilbert v. Hilliard, 187 S.W. 594 (Mo.App.1916). The Skinner case is a very old Kansas case which holds that no negligence of the defendant was shown in directing plaintiff in his work. The discussion in that case of the act of the servant in exposing himself to danger after being warned by the master of the danger is not determinative as defendant implies from its citation of the case.

The Missouri case cited, Gilbert v. Hilliard, supra, is a case involving an instruction in a master-servant case which the court held defective as not submitting the actionable negligence of the master. In the original opinion, a majority of the court felt there was no evidence of the negligence of the master, and the cause was reversed without remand. On motion to modify the judgment, a majority of the court remanded the case on the ground of reversing its prior finding that the negligence of the master was shown by inference. It is not, as defendant suggests a case showing that the servant’s voluntary act in exposing himself to danger constitutes a proximate cause of injury.

The Uhlrig ease was considered in the prior appeal of this case and, as stated therein, is a case involving assumption of risk. As the concurring opinion points out in the previous appeal of this case, the rationale of the Uhlrig case and other eases cited in the prior appeal is assumption of risk.

At the time defendant offered the evidence of the warning, no issue remained in the case as to the defendant of either assumption of risk or contributory negligence. This was offered at the very close of defendant’s evidence, and there had not been a shred of evidence that defendant had not rejected the Missouri Compensation Act nor accepted the Kansas Compensation Act.

In fact, defendant, in its brief filed here, claims that the matter never was in issue and that it had judicially admitted the rejection of the Missouri Act and the consequent denial of it of the defenses of contributory negligence and assumption of risk. On that basis, the testimony of the warning by the foreman was not admissible, it going only to the question of plaintiff’s contributory negligence.

The Supreme Court in the prior appeal of this case pointed out that there was a jury issue on the defendant’s negligence, and that is conceded here. The issue, thus, is not, as defendant poses it, a question of the plaintiff causing his own injury by disobedience. The injury received was at least in part due to the continuing negligence of the master in failing to provide a safe place to work. The Kansas cases cited by defendant on assumption of risk are predicated upon knowledge of the defendant and the plaintiff of a risk of the employment which may or may not be negligently caused, and in those cases where there is negligence and equal knowledge, the doctrine of assumption of risk applies, but here where assumption of risk and contributory negligence are specifically barred by the Missouri statute, knowledge of the employee of any danger created by the employer’s negligence is immaterial to any proper issue in the case. The theory, therefore, upon which defendant offered the testimony as to a warning of the danger of being under the work is immaterial to any proper issue submitted to the jury in this case. The trial court’s ruling was correct.

On the exclusion of the evidence of the plaintiff’s deposition testimony, the same reasoning must prevail. Clearly, the evidence went only to the plaintiff’s knowledge of possible danger by crawling under the gutter which might fall. This is plainly contributory negligence evidence as the Supreme Court held in the prior appeal, 1. c. 220:

“Likewise, to be considered is plaintiff’s statement that before he climbed down, he saw the top edge of the gutter had gaps broken out, was shattered, shaken loose with cracks through it; but he also said ‘it looked like it was pretty solid.’ It is also true that if plaintiff had climbed back on the scaffold to the west of where he was chipping he would not have been struck by the falling gutter. Defendant claims this was the sole cause of plaintiff’s injuries. Our view is that if defendant had not rejected the Missouri Workmen’s Compensation Act, this would have authorized submission of a defense of contributory negligence. However, its rejection of the Act barred this defense. It appears that some Kansas cases may designate as assumption of risk what we call contributory negligence. However, such assumption of risk is also barred as a defense to this defendant because it rejected the Missouri Workmen’s Compensation Act. See Moles v. Kansas City Stock Yards Co. of Maine, Mo.App., 434 S.W.2d 752.” (Emphasis supplied).

This entire line of argument on the exclusion of the evidence is simply casting in another form what was decided on the prior appeal.

III.

Defendant urges error in the trial court’s failure to order a remittitur “under the rule of uniformity,” suggesting a remittitur here of $135,000 and leaving a verdict of $15,000.

Defendant relies on and extensively analyzes Giambelluca v. Missouri Pacific Railroad Company, 320 S.W.2d 457 (Mo.1959). Reference is made also to Amos v. Southern Railway Company, 273 S.W.2d 155 (Mo.1974), cited in Giambelluca. No other cases are cited. Defendant’s argument consists of analyzing the injuries received by Giam-belluca, comparing them with those suffered by the plaintiff here and concluding that Giambelluca had more severe and extensive injuries and that the $75,000 award there reduced by remittitur $25,000 to $50,-000 demonstrates that under the “rule of uniformity,” the verdict here should be reduced $135,000 to $15,000. The last step in this reasoning is not very clear, but it is apparently based upon the judgment of counsel that Giambelluca’s injuries were more extensive, aided by counsel’s assumption that the ultimate award of $50,000 can be reduced to $35,000 for “injuries and disability” because there was proof of $15,000 in special damages.

The analysis of defendant which concedes differences in the injuries and situation of the parties between the cited case and the instant one demonstrates the fallacy inherent in defendant’s claim that remittitur is required under the “rule of uniformity.”

In the early development of the doctrine of remittitur, the fundamental determination that was made by the courts was a matter of simple uniformity as defendant here asserts. Burdict v. Missouri Pac. Ry. Co., 123 Mo. 221, 27 S.W. 453 (1894) and Devoy v. St. Louis Transit Co., 192 Mo. 197, 91 S.W. 140 (1905). The later and more persuasive cases upon the doctrine of remit-titur developed a more sophisticated and rational test for determining the question of whether a remittitur would in fact be ordered. Typical of that more recent line of cases is Marczuk v. St. Louis Public Service Co., 355 Mo. 536, 196 S.W.2d 1000, 1007 (1946), in which the test was set forth in the following language:

“Admittedly, there is no exact formula for gauging whether a verdict is excessive; each case depends upon its own facts. We may only consider the nature and extent of his injuries and losses, and diminished earning capacity, give some consideration to economic conditions and compare the award with the compensation awarded and permitted in cases of comparable injuries.”

Clearly, by the time of the decision in Marc-zuk, the courts had adopted a test which included uniformity as one of the elements for determination of the propriety of a re-mittitur at the appellate level, but uniformity was not the sole determining factor. In addition to the factors set forth in the Marczuk language, supra, other cases have added as factors for consideration, the plaintiff’s age, changing economic factors and a factor of deference to trial court and jury findings. Cases exemplifying the addition of these factors are Hart v. City of Butler, 393 S.W.2d 568 (Mo.1965); Blond v. Overesch, 527 S.W.2d 633 (Mo.App.1975), and Turner v. Yellow Cab Company of Springfield, 361 S.W.2d 149 (Mo.App.1962). Thus, what has emerged from the case law is a standard of reasonableness of the verdict to be determined by the appellate court taking into consideration all of the various factors that the courts have recognized as affecting the issue of reasonableness and utilizing as only one of those factors the notion of uniformity with comparable injuries.

It is also a part of the remittitur doctrine that in making the evaluation of the reasonableness of the verdict the appellate court looks to the evidence most favorable to the verdict and does not, as the defendant has obviously done in making the comparison in his brief, utilize the testimony which is unfavorable to the plaintiff’s verdict in terms of injury proven. Hart v. City of Butler, supra, and Goslin v. Kurn, 351 Mo. 395, 173 S.W.2d 79 (1943).

Thus, the reliance by the defendant upon Giambelluca is misplaced, both in the defendant’s theory that only uniformity is to be considered and in the application of the case by the defendant’s argumentative assertion of the most favorable medical evidence and proof with respect to the defendant’s injuries.

Despite this failure of the defendant to properly approach the issue of remittitur to be decided here, the transcript has been reviewed and the factual elements of the plaintiff’s injuries isolated, as well as the other inherent factors affecting those injuries such as the age of the plaintiff, his educational level and capability of doing work other than manual labor. Based upon that examination, the following appears to be a fair statement of the plaintiff’s injury and damage.

Plaintiff suffered fractures of the transverse processes on the left side of the second, third, fourth and fifth vertebrae and fractures of the twelfth left rib, sacrum, right acetabulum, right innominate bone and the mid shift of the fifth metatarsal in the left foot. Several of the fractured transverse processes were displaced. In addition to these nine fractures, there was displacement of the left sacroiliac articulation and the pubis symphysis. Plaintiff also sustained numerous pulled and torn muscles and ligaments.

As a result of these “serious” and “massive” injuries, as defendant’s own doctor described them, plaintiff was immediately hospitalized and remained hospitalized for five weeks. He was placed in a sling that ran under his pelvis, suspending him from an overhead bar, in an attempt to push together the separated joints. The fractured foot bone was wired to hold it in place for healing. Plaintiff took heavy doses of pain medication all during this hospitalization and continued to take pain medication after going home.

Plaintiff was released from the hospital with an unstable pelvis. It did not heal correctly, and six months later he was hospitalized for an operation to fuse the improperly healed sacroiliac. He was placed in a cast from his armpits to his ankles and released after 24 days. Soon thereafter he was hospitalized for 38 days when he developed rectal sores which were too difficult to treat at home. He was in the body cast fourteen weeks.

The long range effects of the injuries included a shrinking of the left leg by three fourths to one inch, probable development of post traumatic arthritis because of damage to cartilage around the left hip joint and pain and suffering in the areas of his injuries.

Plaintiff used crutches after the first hospitalization and there was pain in his lower back, hips and left foot. Because of the pain involved, he could not lift a baby from the floor.

After the third hospitalization, he was on crutches five or six months. Then he used a cane for one to one and one half years. After that he often used a fence or wall for support.

At the time of trial, plaintiff continued to experience pain at the location of his injuries when the weather was damp or cold. He experiences pain when he sits or stands on his feet in one position too long. It is painful for him to bend down or back, squat or drop to one knee, sit with legs extended or reach his arms high. He can dress himself, but with difficulty. He continues to wear a back brace, even when he sleeps. When lying down, he experiences pain if he turns on his left side and since the time of the first hospitalization he has not experienced a complete night’s sleep. He takes aspirin regularly. His family administers massages and heat treatments.

He cannot pursue activities he once enjoyed such as games with his children that require physical activity. He cannot shoot pool because of the pain. He has given up hunting because it is too strenuous for him, and he is limited in fishing because he cannot stand upright to fish. He was earning some income by driving a bus at the time of trial, but that job induced pain because of the vibrations of the moving bus.

Plaintiff walks with a moderate left leg limp. The condition is likely to be permanent unless plaintiff stretches his leg muscles, but the required therapy would be painful. He is tender in the area where there are surgical sears. Internal scar tissue, formed after the tearing of muscles in the accident, is a source of pain.

Plaintiff’s doctor advised him to avoid work requiring standing, walking, climbing, back bending, or lifting. He is incapable of heavy work. An employment counselor testified that if plaintiff’s condition is as herein described, there is little chance of plaintiff could work as a laborer or in a semiskilled labor capacity. For example, plaintiff could not function as a janitor or bus boy. Yet because of plaintiff’s lack of education, he was qualified only for laborer or semi-skilled positions.

Considering the serious fractures, the large amount of soft tissue injury and injury to the pelvic girdle involved in this plaintiff’s injuries, his subsequent disability in terms of his ability to walk and to work, his testimony concerning his continuing pain upon the motion of his legs and in doing the only type of work for which he is fitted, the injuries would clearly sustain a larger award than was given and affirmed in Bedwell v. Chicago, Milwaukee, St. Paul & Pac. R. R. Co., 509 S.W.2d 81 (Mo.1974), where a $94,000 judgment was held not excessive upon injuries much less extensive than the present plaintiff’s injuries. That case, recognizing as it does the presently eroded purchasing power of the dollar, more nearly fits the level of verdicts necessary at this time to properly compensate plaintiffs for the injury and damage sustained by such injuries.

In this case, one jury in the first trial gave the plaintiff a verdict of $125,000. The question of remittitur was not considered by the appellate court in that case, but clearly, the trial court entered no remit-titur. Here, the question of remittitur was raised, briefed and argued to the able trial judge after the jury verdict. That he carefully considered and weighed the size of the verdict based upon his advantage of having seen the plaintiff and having heard his testimony and that of the expert medical witnesses is evidenced by a portion of his opinion filed in this case which is as follows:

“In no case is it possible to determine with absolute accuracy the maximum verdict amount which can be supported by the evidence. Each case must be reviewed on its own facts . . .. In the present case, plaintiff suffered fractures of four lumbar vertebrae, the sacrum, the right acetabulum, a separation of the symphysis pubis, other fractures and numerous injuries to internal organs and bodily muscle structures. He was hospitalized for a total time of more than eight weeks and, according to plaintiff’s evidence, he was totally and permanently disabled from performing manual labor, the only occupation available to him considering the level of his ability, education and experience. It cannot be held on this factual situation that the verdict of $150,-000.00 represents any bias and prejudice on the part of the jury or that the amount is manifestly unjustified. The court expressly finds on this record and having due regard to the opportunity afforded the court to hear the testimony that the verdict of $150,000.00 is not excessive.”

Such careful consideration by the trial court brings still another factor into focus in the determination here to be made of the excessiveness of the verdict claimed by the defendant. When the appellate court has before it a verdict which the trial court has reduced by a remittitur, the appellate courts review on the basis of an exercise of discretion by the trial court. This is because the order of remittitur by the trial court constitutes a ruling upon the weight of the evidence (Morris v. Israel Brothers, Inc., 510 S.W.2d 437, 447 (Mo.1974)), and it is only where there is an abuse of discretion in failing to order a remittitur or in the amount of remittitur ordered that a judgment is reviewable by the appellate court. Dodd v. Missouri-Kansas-Texas R. Co., 354 Mo. 1205, 193 S.W.2d 905 (1946); Williamson v. Wabash Railroad Co., 355 Mo. 248, 196 S.W.2d 129 (1946). The rule is stated in Couch v. St. Louis Public Service Co., 173 S.W.2d 617, 626 (Mo.App.1943), in the following language: “when the trial court . actually considers the matter of the excessiveness of the verdict and, by ordering remittitur, gives an affirmative expression of his own considered view . the appellate court . . .regards it as so strongly persuasive that except in a case which calls unmistakably for a greater reduction, the judgment left to stand by the trial court will not be disturbed on the appeal.” (Emphasis added) In Morris, the court held that the same deference to the action of the trial court is to be accorded in a case where the plaintiff appealed urging restoration of a cut in the verdict. There is no reason in logic or law that the same deference should not be a factor in the consideration of a defendant’s request for remittitur when the trial court has affirmatively acted to sustain a jury verdict. As evidenced by the written opinion in this case, the trial judge carefully considered the question and upon his weighing of the evidence found no remittitur necessary. In viewing the injuries in this case, comparable awards of current date and all of the factors to be considered under the appropriate test for directing remitti-tur, as well as the fact that two juries have awarded this plaintiff a substantial verdict and the clear indication present in this case that the trial court weighed the evidence and found no remittitur should be ordered, there is no basis for affording the defendant relief by way of remittitur.

IV.

By separate and again very prolix points, the defendant alleges error in three separate areas of the argument. Defendant claims error, first, in plaintiff suggesting to the jury lump sum amounts for pain and suffering; second, in the trial court’s refusing to order a mistrial after the defendant’s objection was sustained to an argument verging on a computation by the hour of plaintiff’s pain and suffering; and third, error on the part of the trial court in directing the defendant not to argue any further on what the defendant characterizes as the issue of remote cause, thereby depriving the defendant of the opportunity of arguing the issue of proximate cause.

Turning to these points in order, some background of the argument must be set forth as to each. With respect to the issue of lump sum arguments for pain and suffering, the plaintiff had made an argument on wage loss at $2.61 an hour. Following that, the record shows the following:

“Now then, pain and suffering. You are entitled to something for pain and suffering, are you not? You know what he went through in this first hospital, hospital Number 1, he was in there 36 days. It’s your discretion but I say—
MR. O’NEAL: Objection, Your Honor. There is no evidence to support a computation and I feel like it’s wholly irrelevant.
MR. KODAS: From May 28th to July—
MR. O’NEAL: I would like a ruling on my objection, Your Honor.
THE COURT: Come forward.
(WHEREUPON, the following proceedings were had and entered of record in the presence BUT OUT OF THE HEARING OF THE JURY:)
MR. KODAS: I trust the Court will observe my time.
THE COURT: I will. I don’t understand the objection. A computation of what?
MR. O’NEAL: He’s going to compute pain and suffering. It’s obviously — there is no computation you can make on pain and suffering.
MR. KODAS: Pain and suffering, that’s what I am computing.
MR. O’NEAL: Of course, there is no evidence involving any such computation and I don’t feel that plaintiff is entitled to make any such computation. This is a matter solely for the jury. That’s the basis.
THE COURT: The objection is overruled.
(WHEREUPON, the following proceedings were had and entered of record IN THE PRESENCE AND HEARING OF THE JURY:)
MR. KODAS: Okay. Hospital No. 2, here’s where we have the surgery. This is when they cut the back open, 22 days he’s in there that time. I say, allow the man $2200. for what he lay there and thought of and feared and underwent. And the continual narcotics that were prescribed in all three of those hospital records. Hospital No. 3—
MR. O’NEAL: Just a moment, I object again, Your Honor.
(WHEREUPON, the following proceedings were had and entered of record in the presence BUT OUT OF THE HEARING OF THE JURY:)
MR. O’NEAL: If the Court please, he said to allow the man the 22 days and then he wrote on the chart for the jury in his computation, the sum of $2,200, so he’s obviously allowing one hundred dollars a day for pain and suffering. There is no evidence of any such thing, that’s wholly improper computation for the jury, invades the province of the jury and we most strenuously object to it. It’s very prejudicial to the defendant.
MR. KODAS: To resolve the matter I will make round numbers of everything.
MR. O’NEAL: Oh, no, that doesn’t solve the situation.
THE COURT: Well, I don’t understand, Mr. O'Neal, what your objection is?
MR. O’NEAL: He is computing pain and suffering by a formula of one hundred dollars a day. There is no evidence to substantiate that pain and suffering is to be compensated to plaintiff at one hundred dollars a day. This is a question for the jury, strictly invading the province of the jury, is prejudicial to this defendant.
MR. KODAS: These computations are your deductions. I don’t know what a jury might deduct.
MR. O’NEAL: Well, when he says “We will allow him the 22 days and writes $2,200 on the pad he’s writing on in front of the jury, it’s clear that he’s allowing one hundred dollars a day for pain and suffering. It’s just improper to make computations of this kind, Judge.
MR. KODAS: I have stated on the record, if I can ever get back to it I will make round numbers out of it so that you won’t worry about it at all then.
MR. O’NEAL: I assume that it’s going to be marked as an exhibit in the case, Your Honor.
MR. KODAS: Certainly.
MR. O’NEAL: And preserved. Do I have a ruling?
THE COURT: The objection is overruled.
(WHEREUPON, the following proceedings were had and entered of record IN THE PRESENCE AND HEARING OF THE JURY:)”

Defendant relies on Faught v. Washam, 329 S.W.2d 588 (Mo.1959); McCormick v. Smith, 459 S.W.2d 272 (Mo.1970); and Chambers v. City of Kansas City, 446 S.W.2d 833 (Mo.1969), contending that these cases condemn the argument made by the plaintiff in this case. Defendant in his argument has combined the objection he later made concerning the hourly rate with the argument set forth above, but they are properly and logically separable in the argument and should be considered separately.

There can be no doubt that Faught condemned any mathematical formula for the computation of sums to be allowed for pain and suffering and in dictum both Chambers and McCormick, supra, support Faught at least inferentially. Chambers was closer to a case involving a formula than was McCormick. In McCormick, the plaintiff argued for $3,000 for pain and suffering for sixty days and $1,000 for a 64-day period, whereas, in Chambers, every sum argued was the result of a formula either by the day or per treatment to the plaintiff. Faught recognized, however, 1. c. 602, 603, that mere argumentative suggestion of a lump sum does not constitute reversible error. The real question to be decided is whether the argument of the plaintiff setting forth differing lump sums for different periods of time of hospitalization constitutes a direction to the jury to utilize a formula for the determination of pain and suffering. Examining the arguments in this case of $4,000 for 36 days of hospitalization, $2,500 for 22 days of hospitalization, and $1,500 for a third period of hospitalization covering 37 days, it cannot be said they suggest a formula. The case is more like McCormick than like Chambers, and the issue of the use of a lump sum for specific periods of hospitalization was not there ruled or decided. Clearly, the sums mentioned by the plaintiff in this case were different for the different periods of hospitalization, apparently based on the differing intensity of care during the periods of hospitalization. The posture in which plaintiff offered the figures is such that he did not refer to any per day or per hour amount but simply suggested a lump sum for the specific periods, all of which differ. But there is an even stronger reason why this is not reversible error in the present case. None of the objectionable factors found in Faught, supra, appear, and although the defendant has coupled the claim of error with a claim of excessiveness as Chambers and McCormick both suggest is necessary, the trial court has clearly ruled that in considering the effect of the argument in the light of the claim of excessiveness, the argument did not affect the size of the verdict, nor cause it to be excessive. The trial court pointed out that even if the argument were assumed to be improper, the argument of the amounts of $4,000, $2,500 and $1,500 for a total of $8,000 in lump sums argued by plaintiff as pain and suffering for hospital stays when compared with the verdict of $150,000 does not demonstrate that the jury relied upon such argument to arrive at their verdict. Indeed, it is clear from the exhibit which shows all of the figures argued by the plaintiff that the argument for $180,000 for pain and suffering after the hospitalization to the date of trial, and the argument for $105,000 for pain and suffering for the balance of his life might have had far greater influence upon the jury in determining the amount of their verdict. The defendant did not object in any fashion to those figures, nor did the defendant raise the question of the plaintiff’s use of the chart to gather all of these figures. The entire amount requested by the plaintiff of $347,000 was not accepted by the jury. The verdict was for less than half of that amount. The defendant has not shown that the discretion of the trial court was abused in ruling upon the lack of prejudicial effect of improper argument as the trial court plainly did on the after-trial motion. S. G. Payne & Company v. Nowak, 465 S.W.2d 17 (Mo.App.1971); Hawkins v. Allen Cab Company, 457 S.W.2d 940 (Mo.App.1970).

Defendant also claims error in the court’s failure to order a mistrial after sustaining the defendant’s objection to another portion of the plaintiff’s argument. After the argument as to the hospital stays, plaintiff’s counsel began an argument which seems clearly to have been leading toward a computation of the pain and suffering of the plaintiff by an hourly rate, although he never gave an hourly rate, nor made the job offer type argument condemned in Faugh t, supra, but was interrupted by an objection which was sustained by the court. The court overruled the request for the mistrial but instructed plaintiff’s counsel outside of the record to avoid arguing any formula basis for pain and suffering. After that ruling, plaintiff returned to the argument on pain and suffering and gave the lump sum figures above referred to (of $180,000 and $105,000) without objection by the defendant, and negated the notion of any direct formula for computing such sums by pointing out to the jury that pain and suffering did not occur during sleeping hours and that on some days it was less than upon others, and frankly admitted that the plaintiff had “gotten better” and that the lesser figure for the latter period reflected that fact. This denial of the mistrial by the trial court is, of course, again a matter of the trial court’s exercise of discretion. In the light of the prompt action of the trial court and the plaintiff’s complete obedience to the trial court’s direction to the extent of suggesting to the jury quite appropriately that pain and suffering is a variable matter not subject to calculation, the ruling cannot be held to be an abuse of discretion. Furlow v. Laclede Cab Company, 502 S.W.2d 373 (Mo.App.1973).

The third area of argument error is defendant’s claim that it was improperly limited in its argument. The exchange with respect to this argument occupies several pages in the transcript, but the flavor of the issue may be reached by paraphrase. Defendant had argued extensively on the issues of primary cause, the reasonably safe method prescribed by the defendant for doing the work, the conflict in method between that prescribed by the defendant and the plaintiff’s expert and clearly had argued specifically that the jury must find that the defendant’s method of doing the work was the direct cause of the plaintiff’s injury and was the substantial factor causing the injury. Defendant then shifted its argument and, after fully arguing the issues of direct causation and the method of work, premised the next feature of its argument with a specific description of the plaintiff’s activities immediately before his injury, emphasizing the fact that the plaintiff was entering upon the scaffold at a point under the trough and was in fact lying upon the inside edge of the scaffold when the gutter came down. Then the defendant said in the argument, “Nów where in the world was Tribble’s method of taking this gutter down the direct cause of plaintiff’s injuries?” Plaintiff’s counsel thereupon objected, contending that by coupling the method of work and the actions of the plaintiff, the defendant was injecting the issue of contributory negligence or assumption of risk. After a long colloquy in which defendant’s counsel vehemently argued his right to argue the issue, the court overruled the objection and cautioned defendant’s counsel not to impinge upon the area of contributory negligence. The defendant immediately upon returning to the argument said, “We, submit to you, gentlemen, that Clarence Tribble’s method could be no more than a remote cause of the plaintiff’s injuries in this case.” The court, after some considerable colloquy, indicated he was again going to overrule the objection, but cautioned defendant’s counsel to discontinue a line of argument of this nature. There was some further colloquy in which defendant’s counsel claimed not to understand the ruling, and the court offered to sustain the objection and instruct the jury if he did not abstain from the argument, and counsel said, “I will not pursue it further.” The court then said, “Well, make up your mind,” and counsel asserted, “Well, you sustained the objection.” After some further colloquy, the court, understandably piqued by the continuing wrangle over the argument, sustained the objection and instructed the jury to disregard the last comments.

Defendant cites cases involving improper oral instructions by the judge or prohibition of an argument clearly proper and contends that the trial court’s ruling in effect made the defendant an insurer of defendant’s safety. From a consideration of the entire argument on the issue of liability, it is clear that defendant was permitted to argue the only issue available to him in the defense of this case, the existence or nonexistence of negligence of the employer. The issue of such liability is succinctly put in Moles v. Kansas City Stock Yards Co. of Maine, 434 S.W.2d 752, 755 (Mo.App.1968), “The ultimate effect of this statute [RSMo 287.-080(1)] is to make negligence of the employer, or the absence thereof, the sole and only issue to be determined insofar as liability is concerned.”

Defendant seizes upon language in the earlier opinion indicating that the plaintiff’s performance of the work was to be considered in determining the question of negligence. A fair reading of that language and the entire opinion can lead only to the conclusion that the court was considering the manner in which the plaintiff was to perform the work in relationship to the placement of the scaffold upon which the plaintiff worked. Following that comment, the court clearly stated that the plaintiff had made a submissible case of the defendant’s negligence in providing a safe place to work. The court in the earlier appeal certainly did not mean to imply that the plaintiff’s conduct could be argued as an intervening or other cause of his injury, as defendant sought to argue. No matter what semantic device is utilized, remote cause, sole cause, or proximate cause, the plaintiff’s conduct contributing to the injury cannot be injected into this case to defeat his recovery. This is so for the simple reason that the negligence charged against this defendant and admittedly proven as a submissible case is a question of continuing negligence, and the lack of safety of the place to work was not terminated and could not have been terminated so long as the work progressed. Therefore, any conduct which combined with or contributed to the plaintiff’s injury could at most be a concurrent or combining cause of the injury and not an intervening or remote cause. Defendant’s contention as to trial court error in denying him the right to argue evidence of plaintiff’s conduct in relation to the method of work is simply a sophisticated, but nonetheless, improper argument of contributory negligence. In the exercise of his discretion, the trial court did not err in sustaining the objection and directing the jury to disregard the improper argument.

V.

Defendant finally contends that the giving of instruction 3 was reversible error because it failed to submit five issues of ultimate fact, assumed a fact not in evidence, and failed to hypothesize correctly the defendant’s method of work. The instruction given is as follows:

“Instruction No. 3: Your verdict must be for plaintiff if you believe: First, defendant employed a method of work requiring plaintiff to use a scaffold where plaintiff would be below the gutter to be removed, and Second, defendant knew or by using ordinary care should have known that the method of work described in paragraph First did not provide plaintiff a reasonably safe place to work, and Third, defendant was thereby negligent, and Fourth, as a direct result of such negligence, plaintiff was injured. (MAI 22.01 Modified-Given)”

Upon the first issue of the omission of essential elements, the defendant argues (a) that the unsafe condition should have been specified as being at a specific location at the place of work and creating a danger not ordinarily inherent in the employment, (b) that the plaintiff had no knowledge or could not have known and that the defendant knew or by exercising ordinary care could have known of the condition, (e) that the defendant failed to remove the unsafe element or warn of it, and (d) that as a direct result the plaintiff was injured. When these assumed elements are considered, it is clear that the defendant is arguing that the plaintiff should have submitted upon a theory of warning and attempting to argue for error in the instruction given by asserting that the instruction was upon a different theory. Defendant relies on Uhlrig v. Shortt, supra; Gibson v. Freygang, 112 Mo.App. 594, 87 S.W. 3 (1905), and Piepmeyer v. Johnson, 452 S.W.2d 97 (Mo. banc 1970).

These cases are factually similar to the instant case but they are not controlling because they were submitted on a different theory. They were common law actions by a servant against a master in which assumption of risk was an available defense which the servant could avoid by proving the master had superior knowledge of the risk and the servant had none, and that the risk was not open and obvious. When assumption of risk is in the case, a plaintiff must instruct on those issues. In the case at bar, the defense of assumption of risk was denied defendant by statute. Since the instruction was here responsive to a theory that eliminated the defense of assumption of risk, it properly eliminated from the jury’s consideration the theory of warning. The theory of the instruction actually given was a simple one and clearly a proper one under the law of the case as announced in the prior decision of this case in the Supreme Court.

Two issues were raised in the prior appeal with respect to the instruction. First, that the use of the language, “Such negligence directly in whole or in part in injury to plaintiff” was error because such instruction was only proper in a FELA case. That issue is no longer in this case, the present instruction clearly avoiding that error. The second issue raised was that the instruction was too broad and indefinite in submitting only a failure to provide a reasonably safe condition of work and not submitting any condition specifically. The court in discussing this claim of error said that the plaintiff’s main claim was that the method of work was unsafe because the men stood on the scaffold below the gutter and caused pieces of gutter to fall around where they stood. The court, indicating what could properly have been submitted, said as follows: “Plaintiff’s verdict directing instruction could have submitted, in accordance with this theory, a finding that the place or conditions of work were unsafe because or on account of having the men work on a scaffold where they would be standing below the gutter they were required to remove.” (l. c. 222) The instruction here is precisely that. It submits a method of work requiring plaintiff to use a scaffold where plaintiff would be below the gutter to be removed. It requires further that the defendant knew or should have known that the method did not provide plaintiff a reasonably safe place to work, and that the defendant was thereby negligent and that as a direct result of that negligence, the plaintiff was injured. The additional findings urged by defendant here would plainly have changed plaintiff’s theory of his case which the defendant has no right to do. The plaintiff submitted in the instant case upon the theory presented in the prior case and followed the direction of the Supreme Court in instructing on that theory.

The evidentiary fact which defendant claims is assumed by the instruction and is not in evidence is that the scaffold was below the gutter. The demonstrative evidence in this case, all of the testimony and everything in the prior opinion indicates that the scaffold was below the gutter. The argument is completely specious. The pictures demonstrate that in view of what actually occurred, no matter where the plaintiff had been standing on the scaffold performing his duties of chipping, he could likely have been struck by the gutter fragments falling upon him. The photographs clearly indicate that the concrete that fell covered the entire width of the walkway and whoever chanced to be on the walkway when it fell would have been struck.

The last complaint made by the defendant is that the instruction failed to properly hypothesize the method of work. Cited for this proposition is again the early appeal of this case and especially the language, 1. c. 220, “[o]f course, the method of work directed, requiring chipping from the ends of the gutter, must be taken into consideration on the issue of negligence.” Defendant insists this language required that the entire method be hypothesized. Immediately preceding the quoted portion relied on by the defendant, the court pointed out that plaintiffs claim of negligence was not based on design or construction, but on the use of a scaffold in the position it was placed requiring the men to do the work of removing the gutter standing where the pieces of gutter would fall around them on the scaffold with the risk that a larger section than intended would fall as it did. Clearly, the negligence consisted not of requiring the plaintiff to chip from the ends of the gutter but in providing a place for him to stand while chipping which exposed him to the risk which is exactly the issue submitted in instruction 3. There is no error in the instruction. The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: WASSERSTROM, Judge.

license: Public Domain

text:
    Anthony NOLA and Elizabeth J. Nola, Appellants, v. MEROLLIS CHEVROLET KANSAS CITY, INC., et al., Respondents.
    No. KCD 26995.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.
    Motion for Rehearing and/or Transfer Denied June 1, 1976.
    See also, Mo.App., 537 S.W.2d 636.

      William J. Hill, Kansas City, for appellants.
    W. H. Bates, Daniel M. Dibble, Kansas City, for respondents.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Plaintiff Anthony Nola sues his former employer Merollis Chevrolet Kansas City, Inc., and other defendants who control that corporation, in four counts: (1) Count I is against Merollis Chevrolet Kansas City for breach of employment contract; (2) Count II is against defendants Carl B. Merollis and Edward N. Harris for inducing Merollis Chevrolet Kansas City to breach that contract; (3) Count III is against Carl and Harris for breach of “buy-out” contracts between those two defendants respectively and Nola; and (4) Count IV proceeds against those three defendants together with defendant Merollis Chevrolet, Inc., for alleged fraud and conspiracy to oppress Nola. Merollis Chevrolet, Inc., pressed a counterclaim on a promissory note signed by plaintiffs. From judgment in favor of plaintiff Anthony Nola on Counts I and III but against him on Counts II and IV and against both plaintiffs on the counterclaim, plaintiffs appeal.

Nola was a long time employee of the Merollis family in automobile agencies operated by the latter in Detroit and later in St. Louis. In 1969 Carl determined to expand his St. Louis operation, conducted as Merol-lis Chevrolet, Inc., and he entered into negotiations to acquire the Jerry Green Chevrolet Agency in Kansas City. Since the Chevrolet Motor Division of General Motors Corporation would consider this as a chain operation, Carl knew that they would require that the Kansas City operation have a different “dealer-operator” before a Chevrolet franchise would be granted. Furthermore, Chevrolet policy required that this dealer-operator have an immediate 25% stock interest and that he have the right to acquire the balance of the stock ownership within a period of five years.

About the time that Carl was negotiating with the owners of the Jerry Green agency, he also entered into discussions with Nola (who was then general manager of the Mer-ollis St. Louis agency) to become the dealer-operator in Kansas City, and Carl also began discussing with Harris arrangements under which the latter would participate in the financing of a corporation to carry on the new Kansas City operation.

The contemplated capitalization of the new agency was to be $200,000, so that Nola’s 25% equity participation would come to $50,000. He was able to raise cash of only $6,500, including payment to him of a $5,000 bonus by Merollis Chevrolet, Inc., which normally would not have been paid until the end of the year. In order to make up the balance, Carl arranged for the Bank of St. Louis to lend Nola $35,000, to be secured by Nola’s stock in the new agency and by Carl’s agreement to guarantee payment; and the balance of $8,500 was provided by loan to Nola by Harris. Pursuant to these arrangements, 25% of the stock in Merollis Chevrolet Kansas City was issued to Nola. Harris and Carl each provided half of the remaining capital, and 37½% of the capital stock was issued to each. The 37½% originally issued to Carl was subsequently reissued to Merollis Chevrolet, Inc., since Carl had caused that corporation, which was solely owned by him, to pay the subscription price.

As prerequisite to and part of the closing transactions with Chevrolet, Carl and Harris each executed a “buy-out” agreement with Nola (designated as the buyer) which provided:

“IT IS UNDERSTOOD AND AGREED that the buyer shall have the opportunity to increase his investment in the dealership from salary, bonus and/or dividends he receives from the dealership so that by making equal annual purchases representing Twenty percent (20%) of the stock held by the seller, he may acquire seller’s complete ownership within a period of Five (5) years.
“IT IS UNDERSTOOD AND AGREED that the buyer will receive a salary of $25,000 per year and a bonus of 10.0% of net profit before bonus and income tax but after an amount equal to 10% return on the seller’s total investment. Buyer agrees to use all funds less taxes from bonus and dividends to purchase additional stock from seller but not to exceed Fifteen (15%) of the seller’s equity in dealership’s net worth for any given year.
* * * * * *
“IT IS UNDERSTOOD AND AGREED between the parties hereto that the value and the consideration for the purchase of additional capital stock in this proposed dealership shall be determined and not exceed the current net worth of the business on December 31st of the year of said option.
“IT IS UNDERSTOOD AND AGREED between the parties that the buyer shall have the right to acquire any of seller’s financial interest which remains outstanding at the conclusion of the Five (5) year term from any source of capital available to him providing that it involves a financial reorganization acceptable to Chevrolet Motor Division.”

As part of the same closing, the new corporation Merollis Chevrolet Kansas City executed a Dealer Selling Agreement with Chevrolet which provided in part as follows:

“THIRD: This Agreement is a personal service contract, and is entered into by Chevrolet with Dealer in reliance upon and in consideration of the personal qualifications, and the representations made to Chevrolet with respect thereto, of the following named person or persons who, it is agreed, will substantially participate in the ownership of Dealer and/or will actively participate in the operation of Dealer’s Chevrolet dealership:”

Immediately following in the blanks provided, the name of Nola was shown as participating both in ownership and in operation and that of Carl as participating in ownership. Then after some intervening language, paragraph THIRD concludes with the following provision:

“No change in such ownership, financial interests or active management of Dealer shall be made without the prior written approval of Chevrolet. Any such approved change shall be evidenced by the execution of a revised ‘Dealer Statement of Ownership, Financial Interests and Active Management’.”

Nola immediately moved to Kansas City, and the new agency business commenced on August 1, 1969. The business at once encountered major trouble. All of Kansas City was gripped in a major construction strike with attendant adverse financial consequences, particularly in the working class area in which the new Merollis agency was located. In addition, the automobile salesmen and repair mechanics had embarked on a strike, the striking salesmen established picket lines at the Merollis agency, and the strike continued steadily through January, 1970. The financial report of the agency showed substantial loss. These reports went both to Carl in St. Louis and to William H. McGuire, the Chevrolet Zone Manager in Kansas City. Both of them were concerned by the loss figures and began discussions with Nola as to ways in which to reduce expenses. Carl particularly was critical of the high level of expenses and also with respect to various practices carried on or condoned by Nola. These complaints eventuated in a joint meeting of stockholders and directors of Merollis Chevrolet Kansas City on November 22, 1969, during the course of which Carl warned on behalf of himself and Harris that costs would have to be cut and that if Nola did not comply with this and previous admonitions to the same effect, then “the corporation would have to take prompt action to change management.” Carl further stated that he and Harris were unwilling to make any additional investment in the corporation “unless real management improvement was demonstrated by Mr. Nola.”

Instead of the situation improving, the net loss escalated in December so that the loss for that month alone was $28,787.07. Upon receipt of those figures, Carl had a meeting separately with Harris and then came to Kansas City for a meeting with Nola on January 27, 1970. This meeting was treated by all concerned as a joint meeting of stockholders and directors, although no formal advance notice was given to Nola. At this meeting Carl announced to Nola that the business could not continue without further advances and that he and Harris were unwilling to put any more money into the agency with Nola in charge. Carl then offered on behalf of himself and Harris to either buy out Nola or to permit Nola to buy out their interests. Nola stated that he himself did not have adequate funds with which to make such a purchase, but that he would like some time to explore the possibility of raising the money. Carl agreed to the granting of time for this purpose, but he proceeded with the determination already made by him and Harris to replace Nola as the managing head of the business. A new manager brought in from St. Louis immediately took over for this purpose. Although Nola reported daily to the place of business for some weeks thereafter, he was not permitted to perform any management functions.

After Nola was so terminated, he continued to retain and use an automobile which had been supplied to him by the corporation as a fringe benefit. On April 10, 1970, Merollis Chevrolet Kansas City brought a replevin action to recover possession of that automobile. In response, Nola filed a counterclaim and a third party petition against Carl and Harris; and in reaction to that, Merollis Chevrolet Kansas City amended its original petition to allege mismanagement and waste by Nola as dealer-operator. During that same month of April, 1970, in which the replevin action was commenced, the Bank of St. Louis called upon Carl to pick up the Nola note which was then in default, and Carl caused Merollis Chevrolet, Inc., to pay the amount due in full to the Bank of St. Louis. Thereupon Merollis Chevrolet, Inc., on August 28, 1970, filed suit against Nola and his wife for the balance due, unpaid interest and attorneys fee. To this second suit Nola again filed a counterclaim and a third party petition. Later, on May 25, 1971, Merollis Chevrolet, Inc., foreclosed on the stock securing the $35,000 note and purchased that stock at the foreclosure sale for $22,000. Before trial both of the suits were consolidated, the parties were realigned, and the case proceeded to trial on an amended petition in four counts on the part of Nola and a counterclaim by Merollis Chevrolet, Inc. on Ñolas’ $35,000 note.

At the close of the evidence, the court sustained the defendants’ motion for directed verdict as to Counts II and IV of Nola’s petition, and it also sustained the motion by Merollis Chevrolet, Inc., for a directed verdict on its counterclaim for which judgment was entered against Ñolas in the amount of $16,260. Counts I and III of the Nola petition were submitted to the jury which returned a verdict in favor of Anthony Nola for $35,000.

Ñolas’ points on appeal, greatly summarized, are as follows: (1) that the trial court should have granted an additur to the jury verdict; (2) that alternatively the trial court should have granted a new trial on the issue of damages only; (3) that the trial court should not have directed a verdict on Counts II and IV; and (4) that the trial court should not have directed a verdict on the counterclaim.

I.

Plaintiffs’ first and second points on appeal are so closely related that they can be treated together. In both, plaintiffs raise the same basic issue as to whether Nola was entitled to damages in excess of the $35,000 awarded by the jury. The only difference between the two points is that in the first plaintiffs suggest that this should have been done by the court itself in the form of additur, whereas in the second they say that if the additur device be not accepted, then the trial court should have granted a new trial so that a larger measure of damages could be submitted for jury determination.

Regardless of that difference in mechanics to accomplish its purpose, plaintiffs’ underlying argument is that the jury found under the instructions that Nola had fully performed his duties for Merollis Chevrolet Kansas City, that under the evidence he had a five year contract for $25,000 per year, plus fringe benefits, and that the amount due him for the five year employment period is mathematically calculable to the sum certain of $143,380; and they further contend that the amount due even calculated pro rata to the date of the verdict would come to $118,542. Thus they say that the verdict actually rendered by the jury in the amount of $35,000 is contrary to the evidence and unsupportable.

Defendants counter that the verdict is justified on the ground that it represents compensation to Nola for the last one-half of what was only a one year employment contract, together with a return of his cash investment and an amount equal to the deficiency judgment which was directed against plaintiffs under the counterclaim. Plaintiffs in effect admit that defendants are right if Nola’s employment was in fact for only one year rather than for five years. In this respect they say in their brief: “Under such a theory [of a one year employment contract], it might well be argued that the verdict was composed of $12,000.00 as remaining salary for one year, the $6,500.00 lost investment and the $16,222.00 [sic] judgment which the court directed against Plaintiff [sic] on the $35,000.00 note and about which the jury was told (T. 808-809), making a total of $34,722.00, or within $278.00 of the actual verdict.” The whole argument between the parties on this phase of the case therefore comes down to the basic issue of whether Nola’s employment was for one year or for five years.

The duration of Nola’s employment by Merollis Chevrolet Kansas City is essentially a question of fact dependent on the intention of the parties as determined by all of the circumstances. 53 Am.Jur.2d Master and Servant § 27, p. 103; 56 C.J.S. Master and Servant § 8, p. 74. There is one element in this situation which tends to support an inference that the parties intended a five year period of employment. This element consists of the factor that the buyout agreements gave Nola five years within which to acquire all of the stock owned by Carl and Harris. This factor might possibly have been sufficient to warrant an express submission to the jury of this as a factual question.

However, plaintiffs never made any request for any such submission. Their whole theory in the trial court was and continues to be in this court that the employment contract was one for five years as a matter of law. Even now, they make no point on this appeal that there was any error in instruction in failing to expressly submit for jury determination whether the employment was for one year or for five years. In view of this line of strategy which has been consistently followed by plaintiffs, the only matter now presented is whether this record shows as a matter of law that Nola had a five year contract. No such showing has been made.

Not only does the record here not compel the conclusion of a five year employment contract, but to the contrary the far more reasonable interpretation is that the parties intended only a one year employment period. A number of factors combine to support this interpretation. First of all, the contemplated salary arrangement referred to in the buy-out agreements is expressed in terms of “$25,000 per year.” While the statement of salary in accordance with a one year unit does not compel the conclusion that the parties intended a one year contract, nevertheless that factor together with other factors, may be taken to indicate an agreement for that time unit. Restatement, Agency 2d § 442(b), p. 339. In addition, the buy-out agreements provided for annual bonuses to Nola in the amount of 10% of net profit. Provision for such an annual bonus or share of profits at the end of the year has frequently been relied upon for a holding that the hiring was for a one year period. 11 A.L.R. 469, 479; 100 A.L.R. 838; 161 A.L.R. 706. Still other factors aim in the direction of a one year contract; Nola left a managerial position in St. Louis and moved his family to Kansas City; and the position which he assumed in Kansas City was an important one in which an intention for temporary employment was not likely. These factors are to be given consideration in the present inquiry. Restatement, Agency 2d § 442(b), p. 339. Also to be considered is the fact that Nola’s election as president was for a term of one year. And still further, a one year initial period ties in with business realities in the automobile industry, in which that period represents a fair standard for testing the effectiveness of the management of a new retail sales agency. In this regard, the Chevrolet Zone Manager testified that it would take a one year experience to test the efficiency of the business operation, and this one year test was adopted by plaintiffs’ attorney himself as “a good yardstick” in the course of his closing argument to the jury. Even the options for stock purchase by Nola are limited to a maximum amount in any given year, so that his purchase could not “exceed Fifteen (15%) of the seller’s equity in dealership’s net worth for any given year.” In view of all these factors, it can by no means be said that the jury was unreasonable in calculating damages based upon an employment for a one year period.

Plaintiffs lay heavy stress on the provision in the Dealer Selling Agreement which provided that there would be no change in the management of Merollis Chevrolet Kansas City “without the prior written approval of Chevrolet.” Plaintiffs point out that defendants concede that there never was any written approval by Chevrolet of Nola’s termination and removal from management. They go on to argue that this approval was a condition precedent, noncompliance with which made the termination illegal and ineffective.

The weak link upon which that argument pulls apart is that Nola has no right to rely upon or seek to enforce the provisions of the Dealer Selling Agreement. That agreement was between Chevrolet and Merollis Chevrolet Kansas City, with the dealer’s covenants running solely to Chevrolet. Plaintiffs seek to bridge this gap by saying that Nola was a third party beneficiary of this agreement. That contention cannot be accepted for the reason that Nola was at most an incidental rather than a direct beneficiary. The authorities are uniform in holding that a mere incidental beneficiary is entitled to no rights under the contract to which he is not a party. Mertens v. MGR Incorporated, 507 S.W.2d 433 (Mo.App.1974); Stephens v. Great Southern Savings & Loan Ass’n, 421 S.W.2d 332 (Mo.App.1967); Black and White Cabs of St. Louis, Inc. v. Smith, 370 S.W.2d 669 (Mo.App.1963). The facts of this case fall within that rule. Chevrolet had its own purposes to serve by the dealership agreement, including the provision now in question. It is to be presumed that the provision was intended by Chevrolet for its own benefit, not that of Nola. 17 Am.Jur.2d Contracts § 304, l.c. 730.

It is quite true that Chevrolet did intend to make Nola the direct beneficiary of certain promises relating to a certain amount of salary, annual bonuses, and a right to acquire all of the equity interest in the agency within a five year period. However, with respect to these matters as to which Chevrolet wanted to give Nola a direct interest, it followed the direct and unequivocal method of requiring that the other principals in the new Merollis agency contract direct with Nola, pursuant to written contracts to which Nola had to be a party, and Chevrolet would not grant its franchise unless and until those direct contracts with Nola were made and submitted to Chevrolet for approval. It must be inferred from this course of dealing that everything that Chevrolet intended to be for the direct benefit of Nola was required by it to be included in the contracts to be made directly by Carl and Harris with Nola. Since those contracts to which Nola was a direct part contained no provision conditioning the right of Merollis Chevrolet Kansas City to terminate Nola’s employment, it must be concluded that Chevrolet did not intend for Nola to have any enforceable right in this regard. The contractual provision in the Dealer Selling Agreement requiring Chevrolet’s agreement to a change in management, if for Nola’s benefit at all which is very doubtful, provided benefit to him merely incidentally. That this must be true is virtually demonstrated by the fact that Chevrolet could agree to a termination of Nola’s employment regardless of whether Nola was willing to be terminated and indeed even if it was against his vehement protest.

Still further, the record strongly indicates a waiver by Chevrolet of the provision in question. The record shows that a Chevrolet Zone Manager generally keeps in close touch with a new agency and that the Zone Manager in Kansas City did so particularly with respect to the new Merollis agency in view of the fact that it was losing money from September through January. Zone Manager McGuire testified that during that period he called four or five times upon Nola to discuss the agency’s business problems. While McGuire (who was the Kansas City Zone Manager until January, 1970) changed his job in that month and the new Zone Manager did not testify in this case, nevertheless it would be incredible to believe that the new Zone Manager did not continue to call upon the Merollis agency just as McGuire had done prior to January, 1970. Any call or inquiry by the manager after January 27, 1970, would immediately disclose that Nola had been severed from management functions. That simply must have been known to Chevrolet through its Zone Manager. As a matter of fact, this is not left wholly to conjecture since Carl testified directly that he did give oral notification of this management change to Chevrolet. In view of the more than three years which expired between Nola’s termination and the date of trial (May 21,1973), it must be inferred that Chevrolet knew of the change of management and waived the requirement of its written consent and execution of a new Dealer Selling Agreement.

Summarizing, plaintiffs’ contention that damages are mathematically calculated in excess of the jury verdict, based on a five year employment contract, is untenable.

II.

Plaintiffs’ third point on appeal contends that Anthony Nola was entitled to go to the jury on the theory of tortious interference with Nola’s employment contract (based on Count II of the petition) and upon conspiracy to oppress Nola economically (based on Count IV of the petition). Neither of these contentions is well taken.

With reference to the theory that defendants Carl and Harris are liable for inducing a breach of contract, recovery is barred by the legal principle that one interested as a stockholder or officer in a corporation is privileged to so induce the corporation, provided that no improper means are used, the defendant acts in good faith to protect the corporation and does not act for his own personal benefit. This remains true even though the defendant in so acting may have been guilty of an error of judgment. 45 Am.Jur.2d Interference, § 54, p. 327; 26 A.L.R.2d 1227, l.c. 1270; 3 Fletcher Cyc. Corps. § 1001, p. 540; Avins, “Liability for Inducing a Corporation to Breach Its Contract,” 43 Cornell L.Q. 55 (1957); May v. Santa Fe Trail Transportation Co., 189 Kan. 419, 370 P.2d 390 (1962); Wilson v. McClenny, 262 N.C. 121, 136 S.E.2d 569 (1964); Worrick v. Flora, 133 Ill.App.2d 755, 272 N.E.2d 708 (1971); Rhine v. Sanders, 100 Ga.App. 68, 110 S.E.2d 128 (1959).

Nor do plaintiffs stand in any better stead with respect to their contention that the defendants engaged in a conspiracy to oppress Nola economically. A careful review of the whole record fails to show any evidence fairly supporting this charge. The termination of Nola in January of 1970 was done in what appears to have been a good faith exercise of business judgment. Even though the jury did not agree that Nola’s termination was in fact justified, still that merely makes out a breach of contract and does not go so far as to support the charge of conspiracy to oppress. The litigation which followed was complicated, hard fought and perhaps to an extent embittered, but no more so than frequently occurs as a common incident to forensic struggle in the courts. Nola himself admitted in his testimony that Carl (who was the moving spirit among the defendants) had treated him fairly in general in the twenty-two years of their relationship and had never done him any serious wrong, although “there were times when we had our problems and disagreements as two normal people would.” He further admitted that Carl had truly wanted him to succeed in the Kansas City agency and that nobody from Merollis Chevrolet had done anything to prevent him from getting a job since January, 1970.

The trial court committed no error in directing a verdict for defendants on Counts II and IV.

III.

Plaintiffs argue that judgment should not have been directed on the counterclaim because: (1) the foreclosure on the stock to secure the note was not conducted in a commercially reasonable manner as required by § 400.9-504(3) RSMo 1969; and (2) that the acts of the defendants rendered payment of the note impossible or frustrated the purpose thereof. Neither of these contentions can be sustained.

With respect to compliance with the statutory mandate, the manner of foreclosure appears to have been entirely reasonable. Due notice on the proposed sale was published and also mailed to plaintiffs. On the date of which notice was so given, a public auction took place, conducted by defendants’ attorney. Defendant Merollis Chevrolet, Inc., made the best and only offer in the amount of the book value of the stock. No challenge to the amount so bid is made by plaintiffs and indeed the amount bid seems quite favorable to them inasmuch as the stock in question represented only a minority interest in Merollis Chevrolet Kansas City. It could hardly be expected that an outsider would be willing to pay the book value, but instead would undoubtedly have exacted a substantial discount below book value.

Plaintiffs place much stress on the fact that the sale took place in St. Louis, Missouri, whereas the business of the corporation was located in Kansas City. No significance is seen in this fact, when consideration is given to the facts that the note was pledged in St. Louis and the corporate headquarters of Merollis Chevrolet, Inc., was located in St. Louis. Plaintiffs cite no authority even remotely indicating that the circumstances mentioned tend to make the foreclosure sale commercially unreasonable.

As for the claim that defendants prevented payment of the note, the facts lend no support. Nola may have intended to pay the note out of salary and bonus to be earned from Merollis Chevrolet Kansas City, and of course he had no such earnings after January, 1970. However, he could and the record shows that he did work elsewhere. The note could have been paid from those earnings. Accordingly it cannot be said that defendants prevented payment of installments on the $35,000 note as they came due.

With respect to plaintiffs’ argument based on commercial frustration, plaintiffs admit in their brief that “[rjesearch reveals that the doctrine has not yet been applied in Missouri.” Even under the law of states which have accepted that doctrine, no case has been cited nor found applying the doctrine under facts at all similar to those of the case at bar.

In any event, no prejudice has been caused to plaintiffs by reason of the judgment against them under the counterclaim, since they have already recouped the full amount as part of the jury verdict in their favor. In the course of closing argument, defendants’ attorney called the jury’s attention to the fact that the court had ruled that Merollis Chevrolet, Inc., was entitled to recover $16,260 on plaintiffs’ note. Defendants’ counsel then went on in effect to make an offer of judgment as follows:

“ . . .if you members of the jury feel you want to do anything at all for Tony Nola — I don’t propose to tell you what to do — you give him sixteen thousand two hundred sixty dollars, just that sum. That will just wash out that note, that is fine, we won’t collect a dime on it, just give him sixteen thousand two hundred sixty dollars, we break even, everybody goes their own way. I respectfully suggest and request that you do just that.”

The jury did bring in a verdict for $35,000 which was, of course, in excess of the amount for which defendants’ counsel had asked them to enter judgment in favor of Anthony Nola. That the $35,000 did include the $16,260 is virtually conceded by plaintiffs in their brief where they say that the $35,000 judgment might well be argued to consist of various items, including “the $16,222.00 [sic] judgment which the court directed against Plaintiff [sic] on the $35,-000.00 note.” Thus, what plaintiffs lost by judgment under the counterclaim, they immediately got back by way of the $35,000 judgment in favor of Anthony Nola.

IV.

In view of the affirmance of the judgment below, it becomes unnecessary to rule on defendants’ motion to dismiss this appeal.

All concur.

      . With respect to the permissibility of additur, see Stahlheber v. American Cyanamid Co., 451 S.W.2d 48 (Mo.1970) and Worley v. Tucker Nevils, Inc., 503 S.W.2d 417 (Mo. banc 1974).

      . Although not suggested by either party, other conceivable possibilities are: 1) that the contract was for employment at will; or 2) that the employment was for a reasonable length of time. The analysis, infra, of all the circumstances in this case demonstrates that the first of those interpretations would be inappropriate; the same factors which go to support the conclusion that the parties intended a contract for a one year period of employment, apply likewise to negate an intention that the employment be at will for an indefinite period. The second of those interpretations would not change the result reached in this opinion; if it could be said that the parties intended the employment to be for a reasonable time, then the factors mentioned show that the reasonable period would be one year.

      . Defendants offered considerable evidence tending to show mismanagement by Nola, including maintaining an excessive parts inventory, retaining an excessive number of demonstrators with equipment which was too expensive, allowing the service manager a percentage commission on “internal labor,” permitting accounts receivable to become too high, allowing preparation charges for preparing new cars to become greatly in excess of industry practice, permitting the sale of clothing and jewelry in the store, keeping too many low value trade-in cars on the used car lot instead of wholesaling them, expending too much to recondition used cars, improper processing of reports respecting internal repairs on used cars, expenditure of funds for lavish and unnecessary equipment on pick-up trucks used for parts pick up and delivery, retaining an excessive number of personnel, and failure to process warranty paperwork timely and in proper form so as to recover reimbursement from Chevrolet.

      . For some discussion of this doctrine, see Ellis Gray Milling Co. v. Sheppard, 359 Mo. 505, 222 S.W.2d 742, 748 (Mo. banc 1949).


text:
    Edward N. HARRIS, Appellant, v. Anthony NOLA and Elizabeth Nola, Respondents.
    No. KCD 27580.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.
    Motion for Rehearing and/or Transfer Denied June 1, 1976.

      W. H. Bates, Daniel M. Dibble, Kansas City, for appellant.
    William J. Hill, Kansas City, for respondents.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

This is a companion case to Anthony Nola, et al. v. Merollis Chevrolet Kansas City, Inc., et al., KCD 26995, decided concurrently herewith. Since all of the complicated facts are comprehensively stated in that opinion, only so much of the circumstances will be repeated here as are necessary to bring the issues of this separate case into sharp focus.

On August 28, 1970, Merollis Chevrolet, Inc., filed suit No. 740073 against Anthony Nola and Elizabeth J. Nola on a $35,000 note signed by them. In response, Anthony Nola filed a third party petition naming Edward N. Harris as a third party defendant. On November 19, 1970, Harris filed a motion to dismiss the third party petition against him. That motion was not overruled until September 3, 1971. Thereupon, on September 16, 1971, Harris filed his answer.

After Harris had filed his motion to dismiss, but before he had filed the answer just mentioned, a promissory note from the Ñolas to Harris became due on July 15, 1971. It was not until almost two years after that maturity date that Harris filed his petition in the present law suit on June 14, 1973. By that time the earlier filed litigation between these parties had been tried, and a judgment in the amount of $35,000 had been entered in favor of Anthony Nola. Both Ñolas responded to Harris’ new suit by filing a motion to dismiss on the ground that this suit on the note was the subject for mandatory counterclaim in the earlier litigation and that it had become barred by failure of Harris so to assert it. The trial court sustained the Nola motion, treating it as a motion for summary judgment. Harris appeals from that order and judgment. His sole point on appeal is that his present cause of action is not barred by the mandatory counterclaim rule.

This question is governed by Rule 55.32(a) which provides as follows:

“Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. * * * y>

In support of his contention that the present suit does not fall within those provisions, Harris sets forth two subpoints in his Points Relied Upon, and in addition he argues a third subpoint in the Argument portion of his brief.

I.

Harris argues first that he did not have this cause of action as a matured claim at the time he filed and served his “first pleading” in case No. 740073, that therefore he could not have filed any kind of claim or counterclaim on the note at that time, and that he should not now be penalized for not doing so. This argument depends upon the validity of the following sub-arguments: 1) that Rule 55.32(a) applies only to claims existing at the time of the first responsive pleading; and 2) that Harris’ motion to dismiss filed on November 19, 1970, was indeed a “pleading” within the meaning of the rule. The validity of the first of those sub-arguments is highly problematical, and Harris offers no authority to support it. However that question need not be pursued, since Harris’ present argument clearly fails with respect to whether the motion to dismiss should be considered as a “pleading.”

That the motion to dismiss should not be considered as a pleading for present purposes is sufficiently shown by Rule 55.-32(a) itself. The rule commences by saying that “[a] pleading shall state as a counterclaim * * Since a motion cannot include a counterclaim, a motion cannot qualify as a pleading within the meaning of the quoted phrase. The scope and permitted content of motions are set forth in Rule 55.27(a), consisting of twelve different defenses. None of those twelve different items covers the filing of a counterclaim by way of a motion.

Moreover, others of the Rules of Civil Procedure reflect a careful distinction between the use of the term “pleading” as opposed to the term “motion.” Thus Rule 55.01 lists the different kinds of pleadings, and does not include any mention of motions. Rule 55.25(c) provides that the filing of any motion alters the time fixed by the rules for the filing of any required responsive pleadings. Rule 55.26(b) provides that matters of form applicable to pleadings shall also apply to motions. Rule 55.27(a) provides that every defense shall be asserted in the responsive pleading except that certain defenses may at the option of the pleader be made by motion; and this rule further goes on that if the defense be by motion, then it shall be made within the time allowed “for responding” to the opposing party’s pleading, and “[mjotions and pleadings may be filed simultaneously.” Subsection (c) of Rule 55.27 deals with certain defenses “whether made in a pleading or by motion.”

The foregoing provisions considered separately, but even more when taken in combination, show plainly beyond question that motions are treated as separate and different from the “pleadings.” This analysis and conclusion was reached in Lawhorn v. Atlantic Refining Company, 299 F.2d 353, l.c. 356 (5 Cir.1962), where it was held that the Federal Rules of Civil Procedure with respect to mandatory counterclaims did not require that a counterclaim be filed at the time of a motion to dismiss, and the failure to file a counterclaim then did not precipitate the coercive sanctions of the compulsory counterclaim rule . See also, Savings Finance Corporation v. Blair, 280 S.W.2d 675 (Mo.App.1955).

As a further contention that he did not have a matured claim on the note at the time of his “first pleading,” Harris argues that even if his motion to dismiss in case No. 740073 cannot be considered as a pleading, nevertheless he had filed an answer even earlier (on June 20, 1970) in a connected case, No. 735744, involving all the same parties and in which Anthony Nola had also filed a third party petition against various defendants, including Harris. Harris argues that his third party answer in case No. 735744 should be given effect as an answer in case No. 740073, since he says that the third party petitions in both cases were identical and were later merged when those two cases were consolidated for trial.

That argument is incorrect factually. The two third party petitions were far from being identical. The one filed by Nola in case No. 735744 was on the ground that Harris and others had induced Merollis Chevrolet Kansas City, Inc., to breach its contract of employment with Nola, for which Nola asked actual damages of $315,-000 and punitive damages of $300,000; and on a second ground that Harris had breached a buy-out agreement between him and Nola, for which Nola asked actual damages of $315,000. On the other hand, Nola’s third party petition in case No. 740073 was based upon an alleged conspiracy by Harris and others to oppress Nola economically, as part of which conspiracy they allegedly caused Nola to incur indebtedness including the $8,500 note here in suit and then created conditions making it impossible for Nola to meet those obligations; for which Nola asked actual damages of $35,000 and punitive damages of $150,000, to be additional to the damages prayed under the third party petition in the earlier numbered suit 735744.

Moreover, the two third party petitions were not merged when the two cases were consolidated for trial. The subject matter of the third party petition in case No. 735744 was included as Counts II and III of the amended petition in the consolidated case, while the subject matter of the third party petition in case No. 740073 became the subject of Count IV of that amended petition. Thus, the two third party petitions were at all times separately identifiable. An answer in the first was not and never became an answer to the second. The answer filed by Harris on September 16, 1972, in case No. 740073 was at a time when he had a fully matured claim on the $8,500 note, and he was obligated to file his counterclaim on that note at that time as part of that answer on penalty of being forever barred if he failed to do so.

II.

Harris as his next major contention argues that his claim on the note does not come within the compulsory counterclaim rule because it did not arise out of the same transaction that was the subject matter of Nola’s third party petition in case No. 740073. This requires an understanding of the very broad sense in which the term “transaction” is used in Rule 55.32. The Missouri Supreme Court has adopted the interpretation long held by the federal courts to the effect that the term “transaction” is one of broad and flexible meaning and is intended to include all the facts and circumstances constituting the foundation of a claim and shall be applied so as to bring all logically related claims into a single litigation. This conception is well and authoritatively stated in Cantrell v. City of Caruthersville, 359 Mo. 282, 221 S.W.2d 471, l.c. 474 (1949):

“The Section 73 [now Rule 55.32] is almost identical with Federal Rule 13(a). The objective of Section 73 ‘is to discourage separate litigations covering the same subject matter, and to require their adjudication in the same action.’ State ex rel. Fawkes v. Bland, 357 Mo. 634, 210 S.W.2d 31, 37; Vol. 1, Carr, Missouri Civil Procedure, pp. 525-534. The compulsory counterclaim provision [Federal Rule 13(a)] is said to be a means of bringing all logically related claims into a single litigation, through the penalty of precluding the later assertion of omitted claims. Lesnik v. Public Industrials Corporation, 2 Cir., 144 F.2d 968; American Mills Co. v. American Surety Co. of New York, 260 U.S. 360, 43 S.Ct. 149, 67 L.Ed. 306 (counterclaim under former Federal Equity Rule 30). The word ‘transaction’ as used in the Federal Rule 13(a) is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediacy of their connection as upon their logical relationship. This liberal view is now well established. Lesnik v. Public Industrials Corporation, supra; Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750, 45 A.L.R. 1370. The word ‘claim’ and the word ‘transaction’ are both of broad meaning. The word ‘claim’ does not refer to the form of the action but to the underlying facts combined with the law giving a party a right to a remedy of one form or another based on the claim. ‘Transaction’ is a word of still broader meaning. ‘Transaction’ should be broadly construed to include all of the facts and circumstances which constitute the foundation of a claim, Grue v. Hensley, 357 Mo. 592, 210 S.W.2d 7, at page 10, ‘all the facts and circumstances out of which the injury complained of * * * arose.’ Ritchie v. Hayward, 71 Mo. 560 at page 562.”

See also for similar and more recent statements of the rule, Rape v. Mid-Continent Bldg. Company, 318 S.W.2d 519, 522-523 (Mo.App.1958) and Williams v. Kaestner, 332 S.W.2d 21 (Mo.App.1960).

Applying those principles here, the facts and circumstances which constitute the foundation of the claim on the $8,500 note are the same as or at a minimum arose out of those ‘which constituted the foundation for Nola’s third party petition in case No. 740073. The facts and circumstances relied on in that third party petition covered all the dealings pertaining to the financing, commencement and initial operation of Merollis Chevrolet Kansas City, Inc. That third party petition, in setting forth those financing arrangements, specifically referred to the $8,500 note executed by the Ñolas to Harris. The petition also alleged that Harris and his confederates knew that Nola had only modest resources and that they conspired to prevent him “from being able to meet the substantial obligations which Merollis and Harris had helped Nola incur in the transaction” and that the acts of Harris and others were intended and calculated to financially bankrupt Nola.

Also to be considered on the question of whether there was a logical relationship between the $8,500 note and the matters set forth in the third party petition, is the fact that Nola’s third party petition itself was in response to a suit by Merollis Chevrolet, Inc., on the Nola $35,000 note given as part of the arrangement to finance the new Merollis Chevrolet Kansas City, Inc. The $35,000 note was given as part and parcel of the very same arrangement and transaction as the $8,500 note given to Harris and which is here in suit.

In sum, the claim by Harris on the $8,500 note is just one incident to the total facts and circumstances which constituted the foundation of Nola’s claim by way of his third party petition against Harris; so Harris was bound to present this logically related aspect by way of counterclaim to Nola’s third party petition in case No. 740073. See G & M Tire Co. v. Dunlop Tire & Rubber Corp., 36 F.R.D. 440 (N.D.Miss.1964).

III.

As a final argument, Harris contends that even if he is barred against Anthony Nola, the operation of Rule 55.32 should not bar his claim against Elizabeth J. Nola. It is questionable whether this has properly been raised for consideration on appeal, since this matter is not referred to at all in Harris’ Points Relied Upon. Nevertheless, the argument will be answered.

True, Mrs. Nola was not an “opposing party” to Harris in case No. 740073, since she at no time ever pursued any affirmative claim against Harris or for that matter against any of the other parties in either case No. 735744 or No. 740073. She was a named party in that litigation only by reason of having been sued as a party defendant on the $35,000 note.

Nevertheless, Mrs. Nola could have been brought in as a party defendant to a counterclaim in case No. 740073. Even if she had never been a party to either of the prior lawsuits in any capacity, she could and should have been joined as an additional party under the express provisions of Rule 55.50, which was in effect until September 1, 1973. Thus Harris could have and he was bound to join Mrs. Nola for the purpose of mandatory counterclaim in case No. 740073. This point was so ruled in Barclay Investment Corporation v. Lamkin, 408 S.W.2d 168 (Mo.App.1966). See also the cases there cited.

Affirmed.

All concur.

      . No implication is intended that the result would be different under new Rule 55.32(g) which became effective September 1, 1973, after completion of the trial in case No. 740073. The new rule says that the new party “may” be added, in contrast to the wording of the former rule that the new party “shall” be added. However, the same result probably is required under 55.32(g) because of the incorporation by reference therein of Rule 52.04.