author: GUNN, Presiding Judge.

text:
    Ruth SMITH, Plaintiff-Respondent, v. STANDARD OIL, DIVISION OF AMOCO OIL COMPANY, Defendant-Appellant, and A. T. Leasing Company d/b/a Chromalloy Rents, Defendant-Appellant.
    Nos. 38802, 38803.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 2, 1978.
    Motion for Rehearing and/or Transfer Denied June 8, 1978.
    Application to Transfer Denied July 24, 1978.

      Terry A. Bond, Luke, Cunliff, Wilson, Herr, Chavaux & McCluggage, St. Louis, for Standard Oil.
    Ralph Kleinschmidt, Evans & Dixon, St. Louis, for A. T. Leasing.
    Godfrey Padberg, Padberg, McSweeney & Slater, St. Louis, for plaintiff-respondent.
   GUNN, Presiding Judge.

Plaintiff’s action is against A. T. Leasing Company, doing business as Chromalloy Rents (Chromalloy), for libel and tortious interference with contract and against Standard Oil, Division of Amoco Oil Company (Amoco), for intentional infliction of emotional distress. The trial court sustained Chromalloy’s motion for directed verdict at the close of all evidence, and plaintiff has appealed this ruling. The jury awarded plaintiff $5,000 actual and $10,000 punitive damages against Amoco. Amoco has appealed from the judgment against it in favor of plaintiff Smith. We reverse as to the judgment adverse to Amoco, affirm as to the directed verdict in favor of Chro-malloy on plaintiff’s libel action and reverse as to the directed verdict in favor of Chro-malloy on tortious interference with contract.

To achieve a denouement in this case, we are required to make a rather tedious trek through the facts as presented. Plaintiff was the holder of a “Torch Club” credit card issued by Amoco in conjunction with Diner’s Club. Under the terms of the credit contract, plaintiff was permitted to use the credit card for purposes other than charges for products and services from Amoco. On at least four occasions prior to the incident leading to this action, plaintiff had accompanied her daughter Jacquelyn to the Chromalloy car rental facilities and had allowed her Amoco credit card to be used as security for monthly rental of a car by her daughter. On each occasion, the daughter paid the rental charges with her own funds when she returned the car, and no charge was made on plaintiff’s charge account. In February, 1974, the daughter rented a car from Chromalloy without plaintiff’s knowledge or, at least, without permission to use the plaintiff’s Amoco card as security. Inasmuch as the daughter had previously rented cars using the plaintiff’s card as collateral, the Chromalloy employee handling the rental arrangement erroneously assumed that the same situation applied and copied plaintiff’s card number on the rental agreement as had been done in the past. But this time plaintiff’s signature was not obtained on the rental agreement as it had been on prior occasions. The plaintiff had not in fact authorized the use of the credit card as security for her daughter’s car rental.

In May, 1974, plaintiff received her Amoco bill for $725.39 for charges made on her account. The bill contained a charge of $211.55 for the unpaid balance due on the car rental by plaintiff’s daughter which had not been authorized by plaintiff. The remaining $513.84 (the difference between $725.39 and $211.55) represented charges which plaintiff had made on her account. Plaintiff complained by telephone and in writing to Amoco about the unauthorized charge of $211.55 and at a later date was credited with that amount. After this adjustment, her charge account properly indicated slightly over $500 still due and owing. During Amoco’s investigation of plaintiff’s complaint, it contacted Chromalloy about the $211.55 charge and was advised by letter from a Chromalloy employee as follows:

“Attached please find a copy of rental agreement # 1774, concerning charges $211.55. Miss Jacquelyn Smith, daughter of Mrs. Ruth Smith did not qualify for rental without a major credit card and her mother presented her diner’s card for credit in lieu of any problems of nonpayment from Jacquelyn. Miss Jacquelyn Smith was able to pay only $73.00 of a rental amounting to $284.55, the remainder was charged to her mother’s card, $211.55.
Attached, also find a copy of rental agreement # 1511, in which both mother and daughter’s names and signatures appear on the same rental agreement using the same diner’s club card as credit backing, this agreement they paid in cash. This is for your information and further handling.”

Rental agreement # 1511 had covered a previous car rental by the daughter, and plaintiff had indeed signed the agreement and allowed her credit card to be used. But plaintiff had not signed rental agreement # 1774, nor had she permitted use of her credit card.

Thereafter, the $211.55 charge was reinstated. After August, 1974, plaintiff made no further payments on her account — neither the $211.55 which had been mischarged as a result of her daughter’s car rental nor the $513.84 for which plaintiff was responsible. Throughout September, 1974, Amoco unsuccessfully pressed for payment and in October cancelled her credit privileges, demanded return of the credit card and suggested that the matter would be referred to its attorney or a collection agency. In November, 1974, plaintiff, by letter to Amoco, reiterated that she was not liable for the $211.55 and returned the credit card as had been demanded. In early December, 1974, plaintiff received three telephone calls from Amoco described by her as neither loud, abusive nor insulting, in which the credit mix-up was discussed. Plaintiff received a letter dated December 5, 1974 from an Amoco attorney urging payment of the account. This letter was followed by another bill for the $211.55, plus the charges actually owed by plaintiff, with an added $9.56 interest charge and a $15 fee for renewal of her Amoco credit card. Plaintiff’s next item of correspondence from Amoco was a January 1975 bill giving credit for $211.55 but including the credit card renewal and finance charge added to the balance over $500 still actually owed by plaintiff. Soon thereafter a letter from an Amoco attorney requesting payment in full was received by plaintiff. In April and in May, 1975, plaintiff received two other letters from a collection agency requesting payment of her account. The tenor of these letters was the same as those from Amoco — businesslike, but inoffensive. Tn .addition to the letters, plaintiff received three telephone calls during April from an employee of the collection agency urging her to settle her account. The calls were made during normal working hours, each about one week apart. According to plaintiff, the agency representative used the words “hell” and “damn” in his conversations. No other invectives or expletives were used. In May, 1976, plaintiff was advised that $211.55, less a 5% processing discount rate, had been finally credited to her account. Without paying anything, including the undisputed amount she owed, plaintiff instituted this action.

We first consider plaintiff’s cause of action against Amoco for intentionally inflicting emotional distress upon her. Plaintiff testified that the telephone calls and collection letters “upset” her. During the trial plaintiff indicated that she had seen a doctor for treatment of her upset condition, but any effect of this evidence was erased by her obligation to provide information responsive to the interrogatories inquiring as to medical treatment and her answers to those interrogatories which denied that she had received any medical treatment.

The law in Missouri regarding action for intentional infliction of emotional distress, commonly referred to as the tort of outrage, is clear. In Pretsky v. Southwestern Bell Telephone Company, 396 S.W.2d 566, 568-69 (Mo.1965), the Missouri Supreme Court adopted from Restatement (Second) of Torts, § 46 (1965), as the standard of liability for outrageous conduct, the following:

“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse the resentment against the actor, having led to exclaim ‘outrageous!’ ”

Mere insults, indignities, inconsiderations or petty oppressions do not rise to the level of the outrageous conduct essential to plaintiff’s right of recovery. Pretsky v. Southwestern Bell Telephone Company, supra; Hood v. Naeter Bros. Publishing Co., 562 S.W.2d 770 (Mo.App.1978).

The alleged outrageous conduct which “upset” plaintiff consisted of a series of letters from Amoco, three telephone calls from Amoco’s credit department, three form letters from a financial collection agency — all of which were admittedly non-abusive in nature — and three telephone calls from the agency. The only telephone call which could be considered in any way abusive — but which we hold not to be grossly so — came from a collection agent whom plaintiff accused of saying “hell” and “damn” on one, or perhaps two, instances (“Why in the hell don’t you sell the damn TV and pay those people”). All communications were over the course of twelve months, and the telephone calls were made during usual working hours. Under the circumstances of this case and gauged by the standard adopted in Pretsky, we hold as a matter of law that the alleged conduct here is not of the extreme and outrageous nature contemplated by § 46 of the Restatement (Second) of Torts. The judgment in favor of plaintiff against Amoco must be reversed. Nelson v. Grice, 411 S.W.2d 117 (Mo.1967); Pretsky v. Southwestern Bell Telephone Company, supra; Hood v. Naeter Bros. Publishing Co., supra; Kuehner v. Denny Loan Corporation, 518 S.W.2d 94 (Mo.App.1974).

We now turn to plaintiff’s claim against Chromalloy for libel and tortious interference with contract. Plaintiff’s claim against Chromalloy rests on the following portion of a letter written by Chro-malloy to Amoco:

“Miss Jacquelyn Smith, daughter of Mrs. Ruth Smith did not qualify for rental without a major credit card and her mother presented her diner’s card for credit in lieu of any problems of non-payment from Jacauelvn.” (emphasis added)

The underlined portion of the letter was of course incorrect, for plaintiff in this particular instance had not presented her credit card as collateral for her daughter’s car rental as had been done on previous occasions. As a result of the false statement in the letter, a jury could find that the unwarranted $211.55 charge was reinstated and that upon plaintiff’s refusal to pay this charge her Amoco and Diner’s credit was revoked. While the $211.55 charge was ultimately withdrawn, plaintiff did lose her credit privileges which were restored only upon her paying a new application fee of $15. Additionally, a finance charge, presumably for the non-payment of the $211.55, was added to plaintiff’s bill — at least there was no evidence that the interest charge was on the $500 balance actually owed by plaintiff.

Plaintiff acknowledges that the wording of the Chromalloy letter to Amoco is not libelous per se. Hence, she relies on libel per quod for her recovery, which necessitates proof of defamation by extrinsic facts. Langworthy v. Pulitzer Publishing Co., 368 S.W.2d 385 (Mo.1963). See also, Missouri Church of Scientology v. Adams, 543 S.W.2d 776 (Mo. banc 1976), and Williams v. Gulf Coast Collection Agency Co., 493 S.W.2d 367 (Mo.App.1973). Plaintiff concedes that to make her case for libel she must show “malicious defamation” of her person. Plaintiff relies on and quotes from Diener v. Star-Chronicle Pub. Co., 232 Mo. 416, 135 S.W. 6, 11 (1911), the following definition of malicious defamation:

“To make a libel, there must be defamation in the sense of the law, before the public scorn and contempt feature is operative. Defamation includes the idea of calumny, aspersion by lying; the injury of another’s reputation in that way. To defame is to speak evil of one maliciously, to dishonor, to render infamous.” Accord Brown v. Kitterman, 443 S.W.2d 146 (Mo.1969); Williams v. Gulf Coast Collection Agency Co., supra.

As a matter of law, we find that the statement in Chromalloy’s letter to Amoco is not defamatory under § 559.410 and as defined in Diener v. Star-Chronicle Pub. Co., supra. The statement implies no more than that plaintiff is wrongfully refusing to pay a charge. There is no vicious attack on her character or reputation which could subject her to public scorn. Plaintiff’s case for libel per quod therefore fails, and the trial court was correct in sustaining Chro-malloy’s motion for a directed verdict as to that count.

However, in viewing the evidence in the light most favorable to the plaintiff and resolving all conflicts in her favor, we believe a jury could find tortious interference of contract. The essential elements for tortious interference of contract as stated in Tri-Continental Leasing Co. v. Neidhardt, 540 S.W.2d 210, 212 (Mo.App.1976), are as follows:

“1) that a contract was in existence; 2) that the defendant had knowledge of the contract; 3) that the defendant induced or caused the breach of the contract; 4) that the defendant’s acts were not justified; and 5) that the plaintiff thereby suffered damages.”

Although under the plaintiff’s evidence the jury would not be impelled to do so, we believe that it could find that the letter written by Chromalloy was unjustified and did cause plaintiff’s credit with Amoco-Diner’s Club to be cancelled, causing her damages on this record of at least the amount of a $15 re-application fee and interest charges on the unpaid $211.55. As we have said, there is nothing within the record to indicate that the plaintiff’s loss of credit card or assessed interest charge was attributed solely to her failure to pay the $513.84 actually owed. Rather, the evidence appears to be that Amoco cancelled the credit card and assessed the interest charges after receipt of the letter from Chromalloy indicating that plaintiff had presented her credit card as security for her daughter’s car rental — a misstatement.

Judgment as to Amoco for outrageous conduct is reversed. Judgment on directed verdict in favor of Chromalloy on the charge of libel per quod is affirmed. Judgment on directed verdict in favor of Chro-malloy on charge of tortious interference of contract is reversed and the cause remanded for trial on that charge.

SIMEONE, C. J., and KELLY, J., concurs.

      . At the most, there were two “hells” and one “damn” recited. Plaintiff testified that the agency representative said: “Why in the hell don’t you sell that damn TV and pay those people, what the hell do you .think.” An apparent reference was being made to the fact that plaintiff’s TV was heard over the telephone by the representative at the time the calls were made.

      . For examples of conduct held to be outrageous, see Warrem v. Parrish, 436 S.W.2d 670 (Mo. 1969), where défendant held plaintiff for three hours on a car lift. Also, see, Liberty Loan Corp. of Antioch v. Brown, 493 S.W.2d 664 (Mo.App.1973), where a loan company officer telephoned eight to ten times within an hour at the debtor’s place of employment, casting aspersions on the chaste character of the debtor, her family heritage, and threatening harm to her daughter.

      . For a thorough treatment on libel per quod, see Eldredge, The Spurious Rule of Libel Per Quod, 79 Harv.L.Ed. 733 (1966), and Prosser, More Libel Per Quod, 79 Harv.L.Ed. 1629 (1966).


source: Caselaw Access Project

author: DOWD, Judge.

license: Public Domain

text:
    Gregory Robert GRIMM, Individually and as Assignee of Wilmer H. Grimm, Plaintiff-Appellant, v. Steve SINNETT, Defendant, Sinnett Lacquer Manufacturing Co., Garnishee-Respondent.
    No. 38707.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 9, 1978.
    Motion for Rehearing and/or Transfer Denied June 8, 1978.
    Application to Transfer Denied July 24, 1978.

      Gerritzen & Gerritzen, Ray A. Gerritzen, St. Louis, for plaintiff-appellant.
    Bryan, Cave, McPheeters & McRoberts, Lewis B. Shepley, David S. Slavkin, St. Louis, for garnishee-respondent.
   DOWD, Judge.

A garnishment proceeding involving an interlocutory default judgment against the garnishee. On May 29,1969 plaintiff Gregory Robert Grimm, then age 16, was injured when Steven Sinnett, then age 17, struck him in the mouth with a pool cue at a local high school. As a result of a jury trial, Gregory Grimm obtained a judgment against Steven Sinnett for $10,000 and Grimm’s father a judgment for $1,049.09 for dental and medical bills. Plaintiff’s father assigned his judgment to plaintiff on May 21, 1976. As of May 15, 1976, the judgment plus accrued interest amounted to $13,862.33.

On or about May 6, 1976 plaintiff filed a request for garnishment to issue to Sinnett Lacquer Manufacturing Company, where Steven Sinnett was employed as a salesman. A summons was served on the garnishee on June 2, 1976 returnable August 19. Plaintiff sent interrogatories to the garnishee on August 13, 1976. An interloe-utory default judgment was entered against garnishee Sinnett Lacquer Manufacturing Company on August 31, 1976, for failure to answer plaintiff’s interrogatories within 10 days of being served with them, as required by Rule 90.13. Also on August 31,1976, plaintiff filed a notice to garnishee which stated that on September 13, 1976 “plaintiff will proceed to final judgment against Garnishee Sinnett Lacquer Manufacturing Company under the provisions of Rule 90.16 Missouri Rules of Civil Procedure.”

At the final judgment hearing, Warren Abell, who kept the payroll records for the garnishee, testified as to the manner in which he processed the garnishment. He withheld 25% of Steven Sinnett’s after-tax wages for two pay periods. Then, on July 3, 1976 Steven Sinnett was married, and afterwards Warren Abell withheld 10% of Sinnett’s after-tax wages for the next three pay periods, ending August 15, 1976. The total amount withheld was $293.60. Warren Abell further testified that he answered plaintiff’s interrogatories and mailed them to the clerk of the circuit court by certified mail, along with a check for $293.60. He presented the return receipt showing that the answers to the interrogatories had been delivered to the circuit clerk on August 19, 1976. The garnishee moved to set aside the default judgment at these proceedings. He filed a new set of answers to interrogatories on September 14, 1976, with a new cheek in the amount of $293.60. •

On November 5, 1976 Judge Richard Me-han ordered the default judgment against Sinnett Lacquer Manufacturing Company set aside for good cause shown. He also concluded that even if there was no good • cause to set aside the default judgment, the amount due from garnishee would still be $293.60, and ordered the garnishee discharged.

Plaintiff claims the trial court erred in setting aside the default judgment. Rule 74.05 provides that an interlocutory default judgment may be set aside at any time before damages are assessed or final judgment rendered for good cause shown. Our standard of review is to determine whether the trial court abused its discretion in setting aside the default judgment. Fulton v. International Telephone & Telegraph Corp., 528 S.W.2d 466, 469[4] (Mo.App.1975); cert. denied 424 U.S. 913, 96 S.Ct. 1111, 47 L.Ed.2d 317 (1976). The propriety of the trial court’s action in setting aside a default judgment must be judged by whether it was predicated upon “good cause.” Corzine v. Stoff, 505 S.W.2d 162, 164[3] (Mo.App.1973). The term “good cause” connotes a remedial purpose in a matter addressed primarily to the conscience of the court and should be interpreted with commensurate liberality, not only to prevent a manifest injustice but to avoid a threatened one. Vaughn v. Ripley, 416 S.W.2d 226, 288 (Mo.App.1967). The trial court is vested with considerable discretion in ruling on motions to vacate judgments. Vaughn v. Ripley, supra. An appellate court is less likely to interfere when the trial court has set aside a default judgment than when it has not. Corzine v. Stoff, supra. Based on the record and the principles set out above, we hold the trial court did not abuse its discretion in setting aside the default judgment.

Plaintiff next argues the garnishee failed to plead and prove it had good reason for failure to file timely and proper answers to the interrogatories. We disagree. The testimony of Warren Abell and the garnishee’s exhibits clearly demonstrated that the interrogatories had been timely answered and mailed by certified mail, but had never been placed in court files and were apparently lost. Thus good cause existed to set aside the default judgment. Rule 74.05; Hinson v. Hinson, 518 S.W.2d 330 (Mo.App.1975). Furthermore, because of the lost answers, the court was fully justified in considering garnishee’s new set of answers even though they were not filed within the time limits of Rule 90.13. Plaintiff’s points regarding these issues are without merit.

Plaintiff next contends that the garnishee’s first set of answers to the interrogatories had no legal effect because they were not signed or notarized. Rule 90.13 requires that the garnishee file the answers under oath. The garnishee’s payroll clerk testified that he answered the interrogatories by typing the answers on the interrogatories and mailed them to the court by registered mail. The answers were not signed nor given under oath. The judge found that this first set of answers “were never placed in the court files and are apparently lost.” Apparently they were found at some point since they appear in the record. On the day following the hearing for damages, the garnishee filed a second set of answers to the interrogatories.

Our research discovers no Missouri case ruling on the effect of failing to answer interrogatories in a garnishment under oath.

At least one other jurisdiction has concluded that an unverified answer is not automatically void. In Hussey v. Hussey, 224 Miss. 856, 82 So.2d 442 (1955) the garnishee wrote a letter to the clerk instead of answering the garnishment writ under oath. The court found him in compliance with the rules, stating, “the garnishee did not wholly make default but filed in due time a purported answer in a good faith effort to give the information called for by the writ .. . [and] the defects and insufficiencies of the purported answer were such as could have been cured by amendment if its sufficiency had been challenged at any time before final judgment was taken against the garnishee.” 82 So.2d at 447. Presumably the requirement that answers be verified exists due to the rule that a garnishee’s answer is presumed true unless excepted to or denied. Rule 90.20; Frohoff v. Casualty Reciprocal Exchange, 113 S.W.2d 1026[7] (Mo.App.1938). Plaintiff has not been injured by the lack of oath since the second set of answers filed September 14, 1976, contained the same responses as the lost first set of answers. If plaintiff disputed the answers or felt they were insufficient he could have excepted to them under Rule 90.17 or denied them under Rule 90.18. He did not do so. Since the garnishee answered in good faith and substantially complied with Rule 90.13, and plaintiff has not been injured by the garnishee’s failure to answer the first set of interrogatories under oath, the trial court did not err in holding the lost, unsworn, unsigned, answers sufficient to fulfill garnishee’s obligation under Rule 90.13. The point is dismissed.

Plaintiff next contends that the judge erred in allowing Warren Abell to testify concerning the amount due under the garnishment, as this testimony “constituted Answers to Interrogatories out of time, and such evidence was not properly before the court.” We disagree. Rule 90.-16 states “no final judgment shall be rendered against the garnishee until there be final judgment against defendant, and in no case for a greater amount than the amount sworn to by the plaintiff, with interest and costs, or for a greater amount than the garnishee shall appear to be liable for to the defendant.” (Emphasis added) The liability of a garnishee is measured by its liability to defendant. Tom Houlihan Men’s Wear v. Wilkerson, 407 S.W.2d 58, 60[3] (Mo.App.1966). Thus it is incumbent upon the trial court to determine what amount the garnishee owed defendant, and in fact a judgment against a garnishee is void or irregular without a determination of the amount due from garnishee. Chenoweth v. La Master, 342 S.W.2d 500[1] (Mo.App.1961). Evidence must be adduced to fix the measure of damages. Laughlin v. January, 59 Mo. 383 (1875). Under our statute the maximum amount that could be garnisheed from defendant’s wages during the garnishment period was 25% per day period when he was unmarried, and 10% per day period after he was married. RSMo § 525.030(2). Warren Abell’s testimony concerning how much defendant earned and how much was withheld from the earnings directly bore on the issue of the garnishee’s liability to defendant. The court did not err in admitting this testimony, nor did it err in finding that only $293.60 of defendant’s wages was subject to garnishment based on this testimony. See Texas Co. v. Asphalt Distributing Co., 224 Mo.App. 1192, 33 S.W.2d 1003, 1004[2, 3] (1931).

Respondent garnishee contends it is entitled to attorneys’ fees and costs under Rule 90.23 because plaintiff did not accept the amount of judgment assessed by the trial court but chose to appeal. Rule 90.23 reads in part, “If any plaintiff in attachment shall cause any person to be summoned as garnishee, and shall fail to recover judgment against such garnishee, all the costs . . . shall be adjudged against such plaintiff . . . .” Since the plaintiff did not “fail to recover judgment against such garnishee,” but in fact recovered $293.60, the rule does not apply. Respondent’s contention is denied.

The judgment is affirmed.

STEWART, P. J., and REINHARD, J., concur.

      . See Thompson v. Thompson, 236 Miss. 31, 109 So.2d 530 (1959) where the clerk’s failure to note on the docket a letter (which the court found to be an adequate substitute for a proper answer to writ of garnishment even though not an answer in statutory form) justified the setting aside of a default judgment.


author: McMillian, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gregory Edward CARR, Defendant-Appellant.
    No. 39028.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 9, 1978.
    Motion for Rehearing and/or Transfer Denied June 8, 1978.
    Charles H. Mostov, Asst. Public Defender, Robert C. Babione, Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Stanley Robinson, Asst. Attys. Gen., Jefferson City, George Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
   McMillian, Judge.

Appellant Gregory Edward Carr appeals from the denial of his pro se petition for credit for bail time. The trial court apparently treated this petition as a motion to vacate judgment and sentence pursuant to Rule 27.26, V.A.M.R. and denied the motion without an evidentiary hearing. For reversal appellant argues that the trial court erred in denying his petition requesting credit for bond time because the conditions of the bond agreement sufficiently restricted his freedom of movement so as to require a reduction of his sentence by the amount of time he was subject to the terms of the bail bond. We disagree and accordingly affirm the judgment.

Briefly, the facts of the case are as follows. On March 9, 1975, appellant was arrested and charged with robbery in the first degree; he was released on bond on March 20,1975. On January 5,1976, appellant appeared with counsel and entered a plea of guilty. The trial court ordered a pre-sentencing investigation and deferred sentencing. In the meantime appellant was arrested and charged with burglary in the second degree on January 26,1976. He was released on bond on February 11,1976. On May 3, 1976, appellant was sentenced to eight (8) years imprisonment. On May 13, 1976, appellant entered a plea of guilty to the burglary charge and was sentenced to four (4) years imprisonment, said term to run concurrently with the eight (8) year sentence. Appellant was credited with jail time.

Thereafter appellant petitioned the trial court for allowance of bond time, approximately fourteen (14) months. The trial court denied the motion without an eviden-tiary hearing. This appeal followed.

The only question on appeal is whether appellant is entitled to credit toward his sentences for the time he was subject to the terms of the bail bond. The same issue was presented in Beaver v. State, 543 S.W.2d 787 (Mo.App.1976). In Beaver, supra, the defendant contended that . the conditions of his bond restricted his freedom of movement so that he was ‘in custody’ while on bail, and therefore, entitled to credit as jail time the time he was ‘out’ on bail. ...” Id. at 788. “. . '. The trial court correctly found that a defendant on bail is not in custody, and that the law does not allow credit against a sentence for time on bail.” Id.

We also note that § 546.615(1), RSMo Supp. 1975 (repealed by 1977 Mo. Laws 212, S.B. No. 60, § 1 enacting the Missouri Criminal Code, effective January 1,1979), specifically allows credit only for time spent “in prison or jail both awaiting trial and pending transfer to the division of corrections.” The statute does not refer to bail or bond time. Therefore, the trial court did not err in denying appellant credit against his sentence for the time he was out on bond.

We find the cases cited by appellant, e. g, Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973), distinguishable. Further discussion of this question is without precedential value. Rule 84.16, V.A.M.R.

Judgment affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: CLEMENS, Presiding Judge.

text:
    CITIZENS BANK OF UNIVERSITY CITY, Respondent, v. Fred GEHL, Appellant.
    No. 39084.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 9, 1978.
    Motion for Rehearing and/or Transfer Denied June 8, 1978.

      Milton L. Schwartz, St. Louis, for respondent.
    Leonard J. Frankel, Clayton, for appellant.
   CLEMENS, Presiding Judge.

When defendant-borrower failed to appear for trial the court awarded plaintiff-bank actual and punitive damages for defendant’s fraud in obtaining a loan from plaintiff. Defendant has appealed from denial of his motion to set aside.

In June of 1973 defendant, a chiropractor, applied to plaintiff for a $38,261 loan to purchase an x-ray machine. Defendant pledged the machine as collateral and signed a statement declaring he had received the machine in good working order. The bank relied on the declaration and made the loan.

In January of 1974 defendant defaulted on his loan payments and the bank attempted to repossess the collateral. Eventually the machine was found in a destroyed condition.

In January of 1975 plaintiff filed suit, alleging defendant had fraudulently represented he had received the x-ray machine in good condition at a time when in fact he had not received it. The case was set for trial on eight different dates and defendant was represented by three different attorneys. Before the withdrawal of Mr. Richard Schwartz as defendant’s attorney, Mr. Louis Winter, a Florida attorney, filed a motion for temporary practice in Missouri. On January 21, 1977 the court denied Mr. Winter’s motion due to violation of several Missouri civil rules. On January 25, 1977 Mr. Schwartz withdrew as attorney for defendant.

Plaintiff duly appeared for trial on January 31, 1977. Defendant failed to appear but sent a telegram to the court stating a settlement agreement had been reached. The court passed the matter for settlement but defendant thereafter refused to carry out the alleged settlement. The court then set the case for trial on February 28, 1977. Plaintiff’s counsel notified defendant by mail sent to his recorded address, but defendant failed to appear at trial. The court heard evidence and entered judgment for plaintiff for $40,867 actual damages, $5,713 for attorney’s fees and $35,000 as punitive damages.

Defendant’s motion to vacate the judgment was denied. On appeal, defendant alleges the court erroneously denied his motion to vacate. He also contends the trial court erred in awarding punitive damages.

Defendant’s first ground is that the trial court erred in denying his motion to vacate because it alleged a good cause for his non-appearance in that he did not have timely notice of the trial setting.

A trial court has broad discretion in passing on motions to vacate judgments. A judgment may be set aside on grounds of extrinsic fraud, accident or mistake, but to succeed the moving party must show reasonable diligence and good grounds for failing to defend, must show he has a meritorious defense, and that the other party will not be substantially harmed by the delay. Human Development Corp. of Metropolitan St Louis v. Wefel, 527 S.W.2d 652[l-3] (Mo.App.1975).

Defendant’s motion fails on each ground. Defendant knew the case had been set for trial and then passed for settlement on January 31,1977. Subsequently he failed to carry out the alleged settlement. Defendant knew he had no attorney authorized to practice in Missouri at the time and, furthermore, failed to notify plaintiff or the court of his change of address. Defendant’s failure to receive timely notice of trial was due to his own carelessness. If one negligently fails to look after litigation, he has no cause to complain that a judgment should be set aside. Gregg v. Johnston, 546 S.W.2d 754[2, 3] (Mo.App.1977). Furthermore, defendant’s motion fails to show a meritorious defense. The trial court did not abuse its discretion in denying defendant’s motion to set aside the judgment.

Defendant next contends the trial court erred in awarding punitive damages. For the elements of fraud to warrant punitive damages, see Ackmann v. Keeney-Toelle Real Estate Co., 401 S.W.2d 483[2-5] (Mo.1966). Defendant contends the evidence fails to show the falsity of his representation that he had received the x-ray machine in good working order. We disagree. By defendant’s deposition he testified he signed the acceptance agreement in June of 1973. He further testified the x-ray machine did not arrive in St. Louis until the following month and at that time the machine was in pieces. The evidence clearly shows defendant represented the x-ray machine was in good condition when, in fact, he had neither received nor seen it. That was fraud and punitive damages were not improperly awarded. Ackmann, supra, at 489-490[8-10]. See also Universal C.I.T. Credit Corp. v. Tatro, 416 S.W.2d 696 (Mo.App.1967).

Alternatively, defendant contends the trial court’s $35,000 punitive damage award was excessive. Punitive damages are awarded to punish wrongdoing, as an example and deterrent to similar conduct. Beggs v. Universal C.I.T. Credit Corp., 409 S.W.2d 719[8] (Mo.1966). Among proper factors in determining the amount of punitive damages are the tort-feasor’s affluence and the degree of malice characterizing the act. Hoene v. Associated Dry Goods Corp., 487 S.W.2d 479[17] (Mo.1972). Here, defendant is a man of presumably high intelligence and professional standing in the community; his net worth is over $490,000. That is properly considered in arriving at the amount of allowable punitive damages. Pisha v. Sears, Roebuck & Co., 496 S.W.2d 280[7] (Mo.App.1973). The trial court gave plaintiff actual damages of $40,867 and punitive damages of $35,000. Punitive damages must bear a reasonable relation to the injury inflicted. Hunter v. Kansas City Rys. Co., 213 Mo.App. 233, 248 S.W. 998[6] (1923). The amounts awarded were reasonably related.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


author: SMITH, Judge. McMILLIAN, Judge,

text:
    STATE of Missouri, Respondent, v. R. V. PRIDE, Appellant.
    No. 39137.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 9, 1978.

      O. J. Gibson, Cape Girardeau, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Chief Counsel, Asst. Atty. Gen., Jefferson City, William L. Syler, Jr., Sp. Prosecutor, Cape Girardeau, for respondent.
   SMITH, Judge.

This case reaches the writer on reassignment. An opinion was originally prepared by Judge McMillian which failed of acceptance by a majority of the division. With the exception of the portion of this opinion dealing specifically with Mr. Berkbigler and Mr. Broker, this opinion is substantially that prepared by Judge McMillian.

Appellant R. V. Pride appeals from a judgment entered upon a jury verdict in the circuit court of Cape Girardeau finding him guilty of robbery in the first degree (Count I), § 560.135 RSMo 1969, and assault with intent to kill with malice (Count II), § 559.-180 RSMo 1969. Because the jury was unable to agree upon the punishment, the trial court sentenced appellant to twenty (20) years imprisonment for Count I and five (5) years imprisonment for Count II, the sentences to run consecutively.

For reversal appellant argues that the trial court erred in: (1) refusing to grant appellant’s motion for authority to obtain the services of a court reporter, § 600.150(2) RSMo Supp.1977; (2) refusing to give instructions to the jury on self-defense and the lesser offense of assault without malice; (3) failing to strike for cause four members of the jury panel; and (4) allowing the piosecution such wide latitude in closing argument to the jury. For the reasons discussed below, we affirm.

No question as to the sufficiency of the evidence has been raised; therefore, only that evidence necessary for our decision will be discussed. On October 21, 1976, Ms. Mabel Stewart was travelling south on interstate highway 1-55. She turned off the highway and parked her car on the truck parking side of the highway rest area in Cape Girardeau. She locked her car and went into the women’s restroom. As she was leaving one of the stalls in the restroom, someone grabbed her around the neck and pushed her to the floor. Ms. Stewart testified that she was beaten about the head and robbed of her car keys and watch. She identified Roscoe James Pittman as the robber. She further testified that appellant did not attack or threaten her, but did enter the restroom on one occasion.

Gary Lively, a truck driver, heard Ms. Stewart scream as he was coming out of the men’s restroom. He testified that he saw Pittman standing inside the women’s restroom and appellant standing “a foot or so away.” Pittman and appellant then proceeded toward their car. Lively followed them and copied the license number of the car the two men were about to enter and called the police on his CB radio.

In the meantime, Ms. Stewart had gotten her pistol from her car and enlisted the aid of another truck driver, Phillip Wayne Brough, to help stop Pittman and appellant. Brough took the gun from Ms. Stewart and walked toward the car, holding the gun at his side. Brough testified that when he was within twenty or thirty yards, the man on the passenger side of the car (Pittman) leveled a .22 caliber rifle at him. Brough stopped and jumped behind a picnic table. Pittman and Brough exchanged shots. Then Pittman and appellant got in their car and drove off. Brough further testified that he fired one more shot as the car sped away. No one was seriously injured. Pittman and appellant were arrested later by the Jackson police.

Appellant first argues that the trial court erred in refusing to grant appellant’s motion for authority to obtain the services of a court reporter. Appellant argues that, as a poor person, he was entitled to take depositions of the prosecution’s three principal witnesses at state expense. See Rule 25.41, V.A.M.R.; § 600.150(2) RSMo Supp. 1977, and that the inability to take such depositions was prejudicial to the preparation of his case. Appellant contends that the statute plus State v. McCormick, 426 S.W.2d 62 (Mo. banc 1968), cert. den. 394 U.S. 930, 89 S.Ct. 1199, 22 L.Ed.2d 460 (1969), made the granting of this kind of pretrial motion “virtually mandatory.”

Appellant first filed a motion for authority to obtain the services of a court reporter on January 13, 1977. The motion was denied January 19. Appellant renewed this motion just before trial on February 11. The prosecution opposed the motion for several reasons: counsel for appellant had been present throughout the trial of Roscoe James Pittman, appellant’s alleged companion, during which counsel heard the testimony of the three witnesses; counsel had a transcript of the preliminary hearing and the opportunity to talk informally with the witnesses at the first trial; and that taking the depositions would only serve to delay the proceedings. The trial court again denied the motion, apparently agreeing with the prosecution.

In McCormick, supra, our Supreme Court held that the denial of an accused’s pretrial motion as a poor person to take depositions and for stenographic services at state expense would not be considered a violation of due process where defendant failed to show how he was or could have been prejudiced by the refusal of the trial court to provide free stenographic services. 426 S.W.2d at 63; cf. State v. Wallace, 504 S.W.2d 67, 70 (Mo.1973) (equal protection); State v. Aubuchon, 381 S.W.2d 807, 812 (Mo.1964) (equal protection). The Supreme Court emphasized the lack of legislative authority to provide free stenographic services. 426 S.W.2d at 63, citing State v. Aubuchon, supra. Although there is now specific legislative authority which provides funds for services needed for adequate representation of indigent persons, § 600.150(2) RSMo Supp.1977 (1972 Mo. Laws 1039, § 12, Amended in 1976), we do not read the statute to require the trial court to automatically advance funds. The trial court must first find “ . . . after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the indigent person is financially unable to obtain them. . ” Evidently the trial court did not find the services were necessary in the present case.

Appellant has only alleged generally that the failure of the trial court to grant the motion was prejudicial to the preparation of appellant’s case for trial. For this reason we are unable to review the sufficiency of the trial court’s finding that the services were not necessary. Appellant has failed to allege or establish how he had been prejudiced by the trial court’s failure to advance the funds. See State v. McCormick, supra. Our ruling on this point, however, in no way passes upon the adequacy of the reasons advanced by the prosecution in the present case as substitutes for the taking of depositions.

Secondly, appellant argues that the trial court erred in refusing to give instructions to the jury on the law of self-defense and the lesser offense of assault without malice. Appellant argues there was sufficient evidence as a matter of law: the evidence showed Brough approached appellant with a gun in his hand and actually fired at the car as it drove away. Appellant contends this evidence established that appellant could have reasonably believed that his life or personal safety was immediately threatened and was therefore entitled to an instruction on self-defense. E. g., State v. McDonald, 527 S.W.2d 380, 381 (Mo.App.1975). We disagree and find that appellant was not entitled to an instruction on self-defense as a matter of law.

If there is any substantial evidence putting self-defense in issue, it is the duty of the trial court to instruct on self-defense as part of the law of the case. § 546.070 RSMo 1969; Rule 26.02, V.A.M.R.; see, e. g., State v. Austin, 367 S.W.2d 485, 486 (Mo.1963); State v. Nunes, 546 S.W.2d 759, 764 (Mo.App.1977). In such a situation the trial court must instruct on self-defense whether or not the defendant requested the instruction and even though the instruction requested or submitted by the defendamt was defective. State v. Spencer, 307 S.W.2d 440,443 (Mo.1957); State v. Sherrill, 496 S.W.2d 321, 325 (Mo.App.1973). Under the so-called withdrawal doctrine, however, which is as applicable to assault as to homicide, one who was the aggressor or who provoked the difficulty in which he killed (or injured or assaulted) another cannot invoke the right of self-defense to excuse or justify the homicide (or injury or assault), unless he had previously withdrawn from the combat in such a manner as to have shown his intention in good, faith to desist. State v. Spencer, supra (assault); State v. Eldridge, 554 S.W.2d 422, 424 (Mo.App.1977) (second degree murder); State v. Sherrill, supra (second degree murder); see also MAI-CR Comments, Self-defense 37-40 (Richardson ed. 1974). Furthermore, “[t]here is a difference between ‘withdrawal in good faith’ from combat, and a mere ‘retreat’ which may be and often is a continuance of hostilities. A ‘withdrawal’ is an abandonment of the struggle by one of the parties and such abandonment must be perceived by the other.” State v. Mayberry, 360 Mo. 35, 226 S.W.2d 725, 727 (1950), citing State v. Heath, 237 Mo. 255, 141 S.W. 26, 29 (1911).

In the present case it is true that Brough approached Pittman and appellant with a gun in his hand. Although at this point Brough became the aggressor, appellant is not entitled to the defense of self-defense because appellant was himself the aggressor in the robbery and had not indicated in any way that he was withdrawing from the combat so as to revive his right to self-defense. Because the robbery and the assault are so related in time, proximity and purpose, even though the victims are different, we view each as part of a single incident. Pittman and appellant were leaving the rest rooms, the scene of the robbery, and walking toward their car when Brough started to approach them. In our view the action by Brough prevented Pittman and appellant from escaping with the stolen property and thus successfully completing the robbery. In other words, under these circumstances, appellant was merely retreating and not withdrawing in good faith. For this reason the trial court did not err in refusing to give an instruction on self-defense.

Nor do we find error in the trial court’s refusal to give an instruction on the lesser charge of assault without malice. Whether an instruction should be given on a lesser included offense depends upon whether there are facts in evidence sufficient to arguably show a lack of an essential element of the higher degree of the offense. State v. Howell, 524 S.W.2d 11, 21 (Mo. banc 1975); State v. Lee, 549 S.W.2d 934, 941 (Mo.App.1977). Stated another way, instructions on lesser included offenses must be given only if they are supported by the evidence, e. g., State v. Lane, 537 S.W.2d 569, 570 (Mo.App.1976); State v. Webb, 518 S.W.2d 317, 320-21 (Mo.App.1975). Assault without malice, § 559.-190 RSMo 1969, is assault with intent to kill or do great bodily harm or to commit a felony; assault with malice aforethought, § 559.180 RSMo 1969, is assault with intent to kill or maim by shooting, stabbing or by means of a deadly weapon or force likely to produce death or great bodily harm. “While many decisions have stated that the essential ingredient of § 559.180 is ‘malice aforethought,’ upon closer examination the true distinction ‘lies in a general weighing together of all the facts and circumstances including . . . the presence or absence of provocation . . . the weapon or means or force employed, [and] the manner in which the weapon or force was employed . . . State v. Lee, 549 S.W.2d 934, 940 (Mo.App.1977), citing MAI-CR Comments, Assault 22-23 (Richardson ed. 1974). In addition, we note that there is a presumption of malice in an assault with a deadly weapon in the absence of countervailing circumstances. E. g., State v. Kopf, 481 S.W.2d 7, 9 (Mo.1972); State v. Johnson, 461 S.W.2d 724, 727 (Mo.1971); State v. Jones, 518 S.W.2d 322, 325-26 (Mo.App.1975).

The evidence in the present case showed that Pittman fired a rifle in the direction of Brough and then fired again at the picnic table behind which Brough had taken cover. Appellant did not testify. The evidence also showed that Pittman and appellant had moments earlier taken part in a robbery and were in the act of leaving the scene when the shooting occurred. We can find no evidence of any countervailing circumstances so as to justify the giving of instructions on assault without malice. As discussed above, appellant was not entitled to use self-defense as a theory of defense. Under the facts presented, appellant was either guilty of assault with malice or entitled to an acquittal. See State v. Lee, supra; State v. McCoy, 530 S.W.2d 8, 10 (Mo.App.1975).

Thirdly, appellant argues that the trial court erred in refusing to strike for cause four jurors, Mrs. Norman Tuschoff, Mrs. Norman Wille, Ronald Broker, and Leroy Berkbigler, when they as veniremen indicated bias and prejudice against appellant during voir dire. The state argues, however, that there was no bias or prejudice expressed and that appellant fails because he did not allege that he was forced to expend one of his peremptory challenges as a result of the trial court’s refusal to strike the jurors for cause.

A defendant in a criminal case has the right to a full panel of qualified jurors before he is required to expend his peremptory challenges; if a defendant is required to exercise one of his peremptory challenges to remove a prospective juror who should have been stricken for cause, the judgment must be reversed and the cause remanded for a new trial, e. g, State v. Land, 478 S.W.2d 290, 292 (Mo.1972), citing State v. Foley, 144 Mo. 600, 46 S.W. 733, 735 (1898); State v. Hirsack, 465 S.W.2d 543, 545 (Mo.1971). Our supreme court recently held in State v. Morrison, 557 S.W.2d 445 (Mo. 1977), that a defendant is entitled to both a qualified panel and the statutory number of peremptory challenges, and that he need not sacrifice one to the other. See also State v. Thompson, 541 S.W.2d 16, 17 (Mo.App.1976). Furthermore, the court in Morrison, supra, held that a defendant does not waive his right to challenge on appeal the action of the trial court in overruling his challenge to the prospective jurors for cause, regardless of whether his peremptory challenges were already exhausted, or if not, whether he used a peremptory challenge to dispose of the juror. Id., 557 S.W.2d at 447; cf. Theobald v. St. Louis Transit Co., 191 Mo. 395, 90 S.W. 354, 361 (1905) (civil suit); Golden v. Chipman, 536 S.W.2d 761, 762-63 (Mo.App.1976) (civil suit). Therefore, applying the holding in Morrison, supra, appellant did not have to allege that he was forced to expend one of his peremptory challenges in order to preserve his right to appeal this point.

We now consider whether the trial court abused its discretion by refusing to strike for cause the four jurors, Mrs. Norman Tuschoff, Mrs. Norman Wille, Ronald Broker, and Leroy Berkbigler. Denial by the trial court of a legitimate request by an accused to excuse for cause a partial or prejudiced venireman constitutes reversible error, e. g., State v. Lovell, 506 S.W.2d 441, 444 (Mo. banc 1974); State v. DeClue, 400 S.W.2d 50, 57 (Mo.1966). It is the duty of the trial judge to determine whether a challenged venireman should be allowed to serve as a juror, e. g., State v. Thompson, supra. Furthermore,

“. . . [determination of a challenged venireman’s qualifications initially rests within the sound judicial discretion of the trial judge and will not be lightly disturbed on appellate review; however, appellate courts are not required to gi ve blind deference to a trial judge’s exercise of discretion in this respect and should, when the question is raised, review the record and determine whether or not the trial judge, in fact, abused his discretion. .” (Citations omitted.) Id. at 18.

A cause is to be tried by individuals who are free from partiality or bias for or against the litigant; jurors should come to the consideration of the case unaffected by any previous judgment, opinion or bias, either as respects the parties or the subject matter of the controversy. See State v. Richards, 536 S.W.2d 779, 785 (Mo.App.1976); State v. Hicks, 530 S.W.2d 396, 398 (Mo.App.1975). In brief, appellant argues that the trial judge should have removed the jurors for cause because two jurors, Mrs. Tuschoff and Mrs. Wille, were related to police officers who were members of the police department which arrested appellant; another juror, Mr. Berkbigler, indicated that his wife had experienced an unpleasant encounter with blacks in the past (appellant is black); and the fourth juror, Mr. Broker, indicated that he was a truck driver and for that reason he would be a little more sympathetic to truck drivers.

We note that although Mrs. Tus-choff had heard about the case from her husband, a police officer of the police department involved in this case, both she and Mrs. Wille stated without reservation that they had not formed any opinion in regard to innocence or guilt. Although we would be less inclined to include as jurors in criminal cases persons who are related to law enforcement officers, we cannot say the trial court abused its discretion in refusing to strike for cause Mrs. Tuschoff and Mrs. Wille.

Neither the voir dire examination of Mr. Berkbigler nor Mr. Broker sufficiently demonstrated bias or prejudice to require the trial court to excuse them for cause. In neither case was either individual asked whether his experiences or sympathies would prevent him from fairly trying the case. In neither case do the answers indicate such unfairness. Mr. Broker agreed to a statement that as a truck driver he might be a “little more sympathetic” to truck drivers. Such an answer does not indicate bias or prejudice anymore than would an answer that a prospective juror tended to be sympathetic to the victim. Sympathy is not bias. It becomes such only when that sympathy prevents the juror from fairly deciding the case under the evidence and the law. There is no indication that Mr. Broker’s “sympathy” reached that far.

Mr. Berkbigler indicated that his wife’s experience would not affect him in deciding the case. He used the idiom “I don’t really think so.” This common vernacular to express a negative is not equivocation. As much as judges and lawyers might desire it, people generally do not speak in absolutes, probably because they realize that few things are ever absolute. To convert Mr. Berkbigler’s. attempt to fully disclose any possible ground he might have for bias into bias itself is totally unwarranted.

It should also be pointed out that nine potential jurors were challenged for cause by defendant. The court denied four challenges and sustained five. It is apparent that the trial court carefully considered the challenges, sustained those in which the potential jurors had demonstrated a degree of bias or prejudice and denied the remainder. We find no abuse of discretion.

Appellant’s final argument is that the trial court erred in allowing the state such wide latitude in closing argument. Appellant argues that the prosecutor in closing argument referred to matters not included in the evidence presented and which were very prejudicial to appellant’s ease. Specifically, the prosecutor stated that appellant took a rifle from the trunk of the car and handed it to Mr. Pittman. The prosecutor also said, “it took four police cars to stop them”. Appellant did not “set forth [these points] in detail and with particularity” in the motion for a new trial and therefore should not be entitled to appellate review because they were not properly preserved. Rule 27.20(a), V.A.M.R.; State v. Madison, 537 S.W.2d 563, 565 (Mo.App.1976).

At trial appellant objected to the prosecutor’s statement about the rifle on the ground that it was speculative. The trial court overruled this question. On appeal appellant now argues that there was no evidence as to where the rifle came from or that appellant was seen handling the rifle. The objection that the statement was speculative in no way called the trial court’s attention to this additional ground. The trial court was thus not given the opportunity to rule upon the objection for that reason. For that reason, this point has not been properly preserved for review, e. g., State v. Lang, 515 S.W.2d 507, 511 (Mo.1974); see also State v. Franco, 544 S.W.2d 533, 537 (Mo. banc 1976). Furthermore, to preserve an overruled objection for appellate review, in addition to being set forth with particularity in the motion for a new trial as discussed above, the objection made to the trial court must be substantially the same as that relied on in the brief on appeal, e. g., State v. Merritt, 564 S.W.2d 77 (Mo.App.1978); State v. Harper, 553 S.W.2d 895, 897 (Mo.App.1977).

The trial court erroneously overruled appellant’s objection to the prosecutor’s statement that “it took four police cars to stop them.” The evidence showed that only two police cars intercepted appellant’s car on the highway. Although the prosecutor’s remark was improper, we do not believe it can be said to have prejudiced appellant’s case or to have influenced the jury’s verdict, e. g., State v. Johnson, 539 S.W.2d 493, 513 (Mo.App.1976), cert. den. 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977); State v. Knapp, 534 S.W.2d 465, 469 (Mo.App.1975). The difference between the prejudicial impact of the improper reference to four police cars and that of the accurate reference to two police cars is not significant. While we would caution prosecutors against making inaccurate statements in closing argument, this particular mistake cannot be said to be reversible error in the present case.

Judgment affirmed.

CLEMENS, P. J., concurs.

McMILLIAN, J., dissents in separate opinion.

McMILLIAN, Judge,

dissenting.

I must dissent. I disagree with the majority opinion and would reverse and remand for a new trial. Specifically, I believe the trial court erred in refusing to strike for cause four jurors: Mrs. Norman Tuschoff, Mrs. Norman Wille, Ronald Broker, and Leroy Berkbigler, when, as veniremen, they indicated bias and prejudice against appellant.

I would find that the trial court abused its discretion in refusing to strike for cause Mrs. Tuschoff and Mrs. Wille, who are both related to members of the Jackson City police department, which arrested appellant and investigated the present case. Mrs. Tuschoff had heard about the case from her husband, a member of the police department. Mrs. Wille’s relationship is admittedly more tenuous; her brother-in-law is apparently the chief of the police department. Although I agree with the majority in that I would be less inclined than the trial court to include as jurors in criminal cases persons who are related to law enforcement officers, I would distinguish those persons who are related to law enforcement officers whose departments or units were specifically involved in the investigation of the case being tried. There is nothing prejudicial per se in being related to law enforcement officers. For example, one of the potential jurors was related to Jefferson City and St. Louis police officers and was not challenged for cause. However, the likelihood of independent information and a certain amount of bias when a potential juror is related to a member of the particular police department involved in the case should not be ignored. For this reason, I believe the trial court should have removed Mrs. Tuschoff and Mrs. Wille.

It is true that of appellant’s nine challenges for cause, the trial court-sustained five. I cannot, however, after a careful reading of the record of the voir dire examination, detect any significant differences between the responses of those veniremen retained and those removed. The majority opinion emphasizes that sympathy is not bias and that Mr. Broker’s answer that as a truck driver he might be a “little more sympathetic" to truck drivers does not indicate bias or prejudice any more than an answer that a prospective juror would tend to be more sympathetic toward the victim. Mr. Broker was not indicating a natural sympathy toward victims but toward truck drivers; he was himself a truck driver and had heard of the incident from other truck drivers. It must be remembered that the present case involved truck drivers (two of the three main witnesses for the prosecution were truck drivers) and, unfortunately, the dangerous aspects of highway travel. The trial court should have removed Mr. Broker.

I am unable to distinguish Mr. Berkbigler from two other veniremen who related similar racial experiences and were successfully challenged and removed from the jury. Mr. Berkbigler quite frankly disclosed that his wife had been scared by an unpleasant encounter with three black men in the past and answered “I don’t really think so” to the question whether that experience would affect him. I cannot agree with the majority’s characterization of Mr. Berkbigler’s response as merely “common vernacular to express a negative” and believe that it does indicate some equivocation. Furthermore, I note that two other veniremen whose adverse racial experiences were more remote in relationship and time than Mr. Berkbi-gler’s were removed — Mrs. Urhahn, whose sister’s store was disturbed by three black men, and Mr. Lorenz, who disclosed racial problems during his military service in Vietnam. Mr. Berkbigler should havé been similarly removed.

“. . . [Ujnder our system of jurisprudence there is no feature of a trial more necessary to the pure and just administration of the law than that every litigant should be accorded a fair trial before a jury of his countrymen who enter upon the trial totally disinterested and wholly unprejudiced. (Citation omitted.) And if for any reason, statutory or otherwise, a venireman is not in a position to enter the jury box with an open mind, free from any bias, he is not a competent juror. . ” State v. Holliman, 529 S.W.2d 932, 942-43 (Mo.App.1975) (Simebne, P. J., concurring).

Somewhat analogous to Judge Simeone’s analysis in Holliman, although no single factor regarding the qualifications of the veniremen challenged in the present case would be sufficient to sustain a challenge for cause, the cumulative effect of these factors would be sufficient, in my opinion, to sustain a challenge for cause against each. In view of the cumulative facts present in the record of the voir dire examination, I would reverse and remand for a new trial because the trial court refused to remove for cause the four jurors, thereby abusing its discretion.

In cases of this nature, a court must ask itself three questions: (1) was the defendant given a fair trial; (2) did the defendant have a fair hearing; and (3) was justice done. Here, in my opinion, the answer to each question is an unqualified no. Moreover, it is inconceivable that in the midst of a pool of qualified veniremen that a court would permit jurors in a suspect category to sit in final judgment of an accused. I cannot believe that if any reasonable person unfortunately found himself or herself under charges as a defendant would countenance as jurors to hear and decide their case who have the credentials of those four jurors permitted to serve in this case.

For the reasons given herein, I would reverse and remand the cause for a new trial.

      . We note that the statute requires the trial court, “ . after appropriate inquiry in an ex parte proceeding . . to make two findings before advancing any funds: (1) the services are necessary and (2) the indigent person is financially unable to obtain them. The trial court in the present case simply denied appellant's motion, thus implicitly finding that the services were not necessary (appellant had already been proven to be a poor person). In order to facilitate our review of future motions pursuant to § 600.150(2) RSMo Supp. 1977, we request the trial court to include in the record his findings and indicate briefly his reasons.

      .Instruction No. A—
      “If you do find the defendant guilty under Count II of assault with intent to kill with malice aforethought, you must consider whether he is guilty under Count II of assault with intent to kill without malice aforethought.
      “As to Count II, if you find and believe from the evidence beyond a reasonable doubt:
      First that on or about October 21, 1976, in the County of Cape Girardeau, State of Missouri, Roscoe Pittman shot at Phillip Wayne Brough, and
      Second, that he did so with intent to kill Phillip Wayne Brough, and
      Third, that the defendant knowingly and intentionally aided or encouraged the person who engaged in the conduct submitted in the above paragraphs,
      then you will find the defendant guilty under Count II of assault with intent to kill without malice aforethought.
      “However, if you do find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty under Count II of that offense.
      “If you find the defendant guilty under Count II of assault with intent to kill without malice aforethought, you will fix his punishment: ******
      (MAI-CR 6.24)”
      Instruction No. B—
      “One of the issues in this case is whether the use of force on Phillip Brough was a justifiable assault. By ‘justifiable assault’ is meant the use of force on another in lawful self-defense. On that issue you are instructed as follows:
      1. The State has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the evidence in this case leaves in your mind a reasonable doubt as to whether the defendant acted in lawful self-defense, then you must find the defendant not guilty.
      2. If the defendant had reasonable cause to believe and did believe that he was in immediate danger of death or serious bodily harm and had reasonable cause to believe, and did believe, that it was necessary for him to act as he did to protect himself from such danger, then you are instructed that he acted in lawful self-defense and must be acquitted.
      3. In determining whether or not the defendant acted in lawful self-defense you should consider all of the evidence in the case.
      4. If the defendant had reasonable cause to believe and did believe that he was in immediate danger of death or serious bodily harm and that it was necessary for him to act as he did, it is of no consequence that the appearances later turned out to be false. If he acted in self-defense, as submitted in this instruction, he must be acquitted even though there was no purpose on the part of Phillip W. Brough to kill him or to do him serious bodily harm and no actual necessity to use the force which he did. (MAI-CR 2.40 (modified))”

      . We distinguish this case from homicide cases wherein all lesser offenses must be instructed upon. See MAI-CR 6.02, Notes on Use and Caveats.

      . Voir dire examination—
      “Mr. Gibson (appellant’s counsel): Anyone else? Again. I am asking you to be very candid, very frank.
      “Mr. Berkbigler: I just remembered that three colored fellows came into the store a few weeks back and scared the wife pretty badly.
      “Mr. Gibson: Do you think that would affect you in some way in sitting on this type of case?
      “Mr. Berkbigler: 1 don’t really think so but I thought I would mention it.”

      . Voir dire examination—
      “Mr. Gibson (appellant’s counsel): Who else indicated they had heard about the case from a source other than the newspaper?
      “Mr. Broker: Just from the guys I work with. They said it was just hearsay what they told me.
      “Mr. Gibson: Would that cause you in any way to form an opinion?
      “Mr. Broker: I drive a truck; I don’t believe it would.
      “Mr. Gibson: The fact that you drive a truck, would that make you a little more sympathetic to truck drivers?
      “Mr. Broker: Well, yeah.”


author: STONE, Judge.

text:
    Blaine HINES and Anna Maude Hines, Plaintiffs-Appellants, v. James Henry SWEET, Defendant-Respondent.
    No. 10098.
    Missouri Court of Appeals, Springfield District.
    May 12, 1978.
    Motion for Rehearing or to Transfer Denied June 6, 1978.
    Application to Transfer Denied July 24, 1978.

      L. R. Buehner, Buehner & Buehner, Joplin, for plaintiffs-appellants.
    Jon Dermott, Ronald E. Mitchell, Blanchard, Van Fleet, Martin, Robertson & Der-mott, Joplin, for defendant-respondent.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   STONE, Judge.

This is a second appellate chapter in the above-captioned case, which was instituted by plaintiffs Blaine Hines and Anna Maude Hines, as the natural parents of Sally Ann Alderman (nee Hines), against defendant James Henry Sweet, for the recovery'of damages on account of the allegedly wrongful death of Sally on May 1,1970, by reason of injuries sustained by her in a vehicular collision on April 22, 1970. Sally’s husband having failed to sue within one year after her death, her parents instituted this action for wrongful death on December 7, 1971. § 537.080(2), RSMo 1969, V.A.M.S. Upon trial to the court and jury in October 1973, judgment for defendant Sweet was entered upon a unanimous jury verdict; but in January 1974, plaintiffs’ motion for. new trial was sustained for error in an instruction given at defendant’s request. Upon appeal to- this court, that order was affirmed and the cause was remanded. Hines v. Sweet, 518 S.W.2d 710 (Mo.App.1975).

The subsequent retrial resulted in a unanimous jury verdict for plaintiffs Hines and assessment of plaintiffs’ damages at $5,000, for which judgment was entered. Plaintiffs again appeal, presenting only a single point directed to the alleged inadequacy of the verdict. Before specifically treating of that point, our study of the transcript prompts the following observations.

Plaintiffs Blaine and Anna Maude Hines had two sons and two daughters. At the second trial presently under review, Anna Maude, the mother, testified that Brenda, the oldest child, was twenty-one months older than Sally, and that Sally was four years older than Phillip and six and one-half years older than Frank. And, the father’s testimony at .the second trial on May 27, 1975, disclosed that Prank was then twenty-two years of age. From the facts thus revealed by plaintiffs’ testimony at the second trial, it necessarily follows that, when Sally died on May 1, 1970, slightly more than five years prior to that trial, Frank then was seventeen years of age and Sally was between twenty-three and twenty-four years of age.

However, in carefully reviewing the transcript, we note that in the course of reading into evidence life expectancies from one of the mortality tables appearing in 42 V.A. M.S. at page 801, plaintiffs’ counsel stated that Frank “was at the time of this incident [resulting in Sally’s death], 17 years old," and that “Sally . . . was 19 years of age at the time of her death [9 days later on May 1, 1970].” (All emphasis herein is ours.) Likewise in plaintiffs-appellants’ brief filed in this court, counsel stated no less than three times (twice in the statement of facts and once in the argument section) that Sally was 19 years of age at the time of her death, and in each instance also has declared in the same paragraph that Frank was then 17 years of age.

A meticulous search of the transcript reveals no testimonial support for the assertions of plaintiffs’ counsel that Sally was 19 years of age at the time of her death. The only evidence of Sally’s age, other than the afore-mentioned testimony of plaintiff Anna Maude Hines, the mother of Sally and Frank, was Sally’s birth certificate received in evidence as plaintiffs’ exhibit 7. Since that certificate obviously would have afforded reliable, if not conclusive, proof on the factual conflict concerning Sally’s age, it was the duty of plaintiffs-appellants to file that exhibit with the clerk of this court which has not been done. Missouri Court of Appeals Rules, Springfield District, Special Rule 4; Ryan v. Equitable Life Assurance Society of U. S., 560 S.W.2d 884, 886-887(3) (Mo.App.1977); Kewanee Oil Co. v. Remmert- Werner, Inc., 508 S.W.2d 23, 27 (Mo.App.1974); Lange v. Baker, 377 S.W.2d 5, 7(4) (Mo.App.1964).

In view of the utilization of and reliance upon actuarial tables in the presentation of plaintiffs’ case, and the emphasis upon the purported special relationship between Sally and Frank, we have been moved to examine the entire record in this court on the prior appeal, as we are authorized to do. Collins v. Leahy, 347 Mo. 133, 137-138, 146 S.W.2d 609, 611(2) (1940); Hardin v. Hardin, 512 S.W.2d 851, 854-855(2, 3) (Mo.App. 1974); Langdon v. Koch, 435 S.W.2d 730, 733(4) (Mo.App.1968). See also Wessels v. Smith, 362 S.W.2d 577, 578(3) (Mo.1962).

From that examination of the transcript on the first appeal docketed as our Case No. 9664, we glean the following. In the opening statement of plaintiffs’ counsel, we find the representation and assurance that “[t]he evidence will be that, as I say, Sally was just short of 24 years of age when she died, and we will have evidence about what her life expectancy was . . .” The evidentiary portion of the transcript on appeal was abbreviated by the fact, as recited in the transcript, that “[t]he testimony of certain witnesses has been omitted from this transcript by agreement of counsel.” Accordingly, none of the testimony by members of the Hines family was included. However, in the closing argument of plaintiffs’ counsel which was reported, we find the positive statement (presumably conforming to the untranscribed evidence) that: “Sally was seven years old when Frank arrived. Now, you folks, in your own experience, know what the coming of a baby, a new baby in the family would be to a seven year old girl.”

Similarly, in his opening statement to the jury at the first trial, defendant’s counsel told the jury that he anticipated the evidence would show that at the time of accident Sally “was an adult, she was 23 years of age,” and in his closing argument advised the jury that “you must bear in mind that this was a young woman, 23 years of age.” Even though appellants’ adhibition of mortality tables and their presentation and argument in the second trial now under review apparently were predicated, at least to some extent, on the meta-chronism that Sally was born nineteen years before the accident which took her life in 1970, defendant-respondent neither objected at trial to the assumption by plaintiffs’ counsel that Sally was nineteen at the time of her death nor appealed from the judgment nisi. Hence, we proceed to treat of the single point in plaintiffs-appellants’ brief on this appeal, which was directed to the alleged inadequacy of the verdict and charged that the trial court “committed prejudicial error in excluding proposed testimony from the witness Dr. Patterson, and the proposed witness Robert Dieckhoff, that Frank Hines, retarded son of plaintiffs [Hines] and brother of the deceased Sally Ann Alderman, needed care of a type offered by group care homes and that such care was available in the area at a cost of approximately $275 per month, because such evidence was admissible ... to establish damages to the plaintiffs that they were reasonably certain to sustain in the future as a direct result of the death of their daughter, whom the evidence established was reasonably certain to render service to her parents or either of them by furnishing such needed care to her retarded brother.”

Frank lived with his parents (plaintiffs Hines) in their home on a tract of “just under 40 acres” in the “north edge” of Newton County. At the time of the second trial in May 1975, both plaintiffs were 63 years of age and Frank was 22 years of age. Aside from the fact that plaintiff Blaine “used to could castrate pigs” but no longer could do so, he led a “normal life” and his health was “all right.” Plaintiff Anna Maude forthrightly declared “I am in good health.”

Plaintiffs’ witness, Dr. Ronald R. Patterson, then medical director of the Joplin Regional Diagnostic Clinic, pictured Frank as a Mongoloid who physically was “a healthy young man” but mentally had an “intelligence” level of “approximately age five” and accordingly needed supervision like any other child of that age.

In response to the interrogative guidance of their counsel, plaintiffs Blaine and Anna Maude testified in detail concerning Sally’s deep affection for her retarded brother and her patient and continuing efforts to help him improve his speech and develop his limited capabilities, which need not be detailed here in view of the thrust in the above-quoted single point on appeal presented by plaintiffs-appellants.

None of the seven cases cited by plaim-tiffs-appellants involved a factual situation similar to the case at bar, and none of those cases was an action by parents for the recovery of damages by reason of the death of a child. In fact, six of those seven cases are cited by plaintiffs-appellants to the single long-settled proposition that, if the right to recover damages is established, difficulty in calculating or measuring the exact amount of damages will not prevent some recovery.

We recognize that family circumstances and finances may be considered in a wrongful death action by the parents of a deceased child and that recovery may be had for the parents’ pecuniary loss occasioned by the child’s death; and we are cognizant that such pecuniary loss embraces not only the monetary contribution, if any, of the deceased but also such elements of pecuniary value as enter into the domestic relationship of parent and child.

The seventh and final case cited by counsel for plaintiffs-appellants, namely, Lebrecht v. United Rys. Co. of St. Louis, 237 S.W. 112, 114(2) (Mo.1921), stated and applied the following principle which was controlling in Lebreeht and which is quoted and recognized in instant plaintiffs-appellants’ brief as controlling here, i. e., “[t]o justify a recovery for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury.” Otherwise stated, this principle with which we agree is that recovery for future conditions and related expenditures is limited to those reasonably certain to occur, and that those which are merely possible, foreseeable, or even probable provide no basis for recovery, because “ ‘[cjonsequences which are contingent, speculative, or merely possible are not proper to be considered by the jury in ascertaining the damages, for it would be plainly unjust to compel one to pay damages for results that may or may not ensue, and which are merely problematical.’ ” Coffer v. Paris, 550 S.W.2d 915, 918(5) (Mo.App.1977); Hahn v. McDowell, 349 S.W.2d 479, 482(2, 3) (Mo.App.1961).

The transcript of the second trial now under review discloses that both plaintiffs and John Alderman, husband of the deceased, testified in some detail concerning Sally’s assistance around her parents’ home and farm, the relationship between Sally and her retarded brother Frank, and the care and attention Sally gave to Frank. Thus, the excluded “proposed testimony from [plaintiffs’] witness Dr. Patterson, and the proposed witness Robert Dieckhoff,” to which plaintiffs’ counsel refer in their here-inbefore-quoted point, would have been material only to the factual issue as to the need for and cost of institutionalizing Frank. However, the overwhelming weight of the evidence negated the suggestion of plaintiffs’ counsel that Frank would be placed in an institution within the foreseeable future.

The health of Frank and his parents was good at the time of the second trial. Dr. Patterson testified that Frank “had none of the usual complicating [physical] factors” normally associated with Mongoloidism, and that “Frank is a healthy young man.” Likewise, Anna Maude Hines, Frank’s mother, declared that “[h]e [Frank] is in good health”; and, as hereinbefore noted, Mrs. Hines similarly averred without reservation or qualification, “I am in good health,” and Mr. Hines agreed that he led a “normal life” and his health was “all right.” Frank had not been institutionalized either before or after Sally’s death; and, as a matter of fact, both Blaine and Anna Maude Hines testified that they had never “considered,” “discussed,” or “even thought of” placing Frank in an institution. From the foregoing portrayal by plaintiffs’ own testimony, we concur with the trial court that it was far from reasonably certain that Frank would need institutionalization, must less at what time or under what circumstances.

The evidence on the cost of institutionalization was similarly indefinite, if not inconsistent. Mr. Dieckhoff, a psychiatric social worker whose testimony at the first trial was, following the second trial, appended to plaintiffs’ motion for new trial as an offer of proof and hence is before us in the second-trial transcript, initially stated that the monthly cost of institutionalization in the type of facility used or employed for the care of Mongoloids “goes from $200 to $300, depending on the rating which we give to the home,” subsequently stated that in the only such facility known to him in .that territory the “base rate [was] $230” per month, and finally disclosed on cross-examination that the cost “depends on what the family can, you know, pay towards that home” and that, “if a retarded child comes out of an indigent type home, probably the family wouldn’t be charged anything.”

In their motion for new trial and on appeal, plaintiffs-appellants complain that the judgment for $5,000 was grossly inadequate and that they were entitled to recover a substantially larger sum on the theory that Frank would need to be institutionalized at a projected cost of “approximately $275.00 per month,” which Sally would have provided. This, notwithstanding the fact that plaintiff Blaine admitted on cross-examination that from the time of her marriage until her death Sally had contributed nothing to their support and that plaintiff Anna Maude likewise stated that Sally had made no “financial or money” contribution to either parent.

Plaintiffs-appellants do not assert that Sally would have had any legal obligation to have provided or paid for Frank’s institutionalization at any time, and there is no evidence she would have been able to have paid for such institutionalization, if and when it might be needed. Furthermore, the record neither suggests nor indicates that, should Frank be institutionalized during the lifetime of his parents, Sally would pay or be requested to pay for such institutionalization, particularly so in view of the above-noted disclosure in plaintiffs’ offer of proof by Dieckhoff that the cost depends on what the family can pay.

In fine, because not only Frank’s institutionalization but also payment therefor by Sally were contingent on several factors and consequences which were too remote, indefinite, uncertain and speculative to rise to the required standard of reasonable certainty, the trial court did not err in any respect assigned in the hereinbe-fore-quoted single point relied on.

The judgment is affirmed.

BILLINGS, C. J, and TITUS, J., concur.

      . The obvious effects of lowering Sally’s age by -some four or five years would be (a) to increase her life expectancy as reflected in the mortality tables and (b) to narrow the age gap between Sally and Frank.

      . Shechter v. Brewer, 344 S.W.2d 784, 791 (Mo.App.1961) (“[W]here it is certain damage has resulted, uncertainty as to amount will not preclude recovery”); Naeger v. Naeger, 339 S.W.2d 492, 498 (Mo.App.1960) (“[T]he uncertainty which prevents a recovery is uncertainty as to the fact of the damage and not as to its amount”); Moore v. St. Louis Southwestern Ry. Co., 301 S.W.2d 395, 403 (Mo.App.1957) (“[T]he rule against recovery of uncertain damages generally has been directed against uncertainty as to cause rather than uncertainty as to measure and extent. . . [WJhere substantial damages are established but the amount, so far as susceptible to pecuniary ad-measurement, is either entirely uncertain or extremely difficult of ascertaining, [that fact] will not prevent recovery”); Boston Securities, Inc. v. United Bonding Insurance Co., 441 F.2d 1302, 1304 (8th Cir. 1971); Brink's, Inc. v. Hoyt, 179 F.2d 355, 360-361 (8th Cir. 1950); Hawkinson v. Johnston, 122 F.2d 724, 731 (8th Cir. 1941) (“ ‘The rule that damages which are uncertain or contingent cannot be recovered . only applies to such damages as are not the certain result of the breach, and not to such as are the certain result, but uncertain in amount.’ ”).

      . Richeson v. Hunziker, 349 S.W.2d 50, 52-53(1-2) (Mo.1961); McCrary v. Ogden, 267 S.W.2d 670, 676 (Mo.1954); Dougherty v. Smith, 480 S.W.2d 519, 520 (Mo.App.1972); Anderson v. Robertson, 402 S.W.2d 589 (Mo.App.1966). See generally Martin v. Sloan, 377 S.W.2d 252, 265(20) (Mo.1964); Patison v. Campbell, 337 S.W.2d 72, 75(2) (Mo.1960); Lynch v. St. Louis Public Service Co., 261 S.W.2d 521, 524(9) (Mo.App.1953).

      . Hertz v. McDowell, 358 Mo. 383, 389-390, 214 S.W.2d 546, 549-550(5, 6) (banc 1948). See also Talbert v. Chicago, R. I. & P. Ry. Co., 321 Mo. 1080, 1089, 15 S.W.2d 762, 765(5) (banc 1929); Bolino v. Illinois Terminal R. Co., 355 Mo. 1236, 1248, 200 S.W.2d 352, 359 (1947); Schwarz v. Gage, 417 S.W.2d 33, 36(1) (Mo.App.1967).

      . To the same effect, see 25 C.J.S. Damages § 26, p. 678, quoted in plaintiffs-appellants’ brief, to wit:
      “Compensation cannot be based on a mere conjectural probability of future loss. So an award for future disability cannot be based on mere conjectures and probabilities. Where a plaintiff claims compensation for future consequences of an injury ordinarily he must prove with reasonable certainty that such consequences will happen.”

      . See also Jenkins v. Jenkins, 453 S.W.2d 619, 621 (Mo.App.1970); Zoeller v. Terminal Railroad Ass’n of St. Louis, 407 S.W.2d 73, 78(3) (Mo.App.1966); Kirby, Tort Actions and the Economic Expert, 31 Mo.B.J. 25, 30 (1975) (“Expert testimony as to expected future consequences of the injury is valid if they are reasonably certain to occur in the ordinary course of nature.”). For cases requiring damages for future expenses or losses to be established to a degree of reasonable certainty in a variety of factual situations, see the following cases and those cited therein: Sampson v. Missouri Pacific R. Co., 560 S.W.2d 573, 589(28) (Mo.banc 1978); Clark v. Mississippi River & B. T. Ry., 324 Mo. 406, 419, 23 S.W.2d 174, 179(11, 12) (1929); Rotermund v. Basic Materials Co., 558 S.W .2d 688, 691(4) (Mo.App.1977) (“[t]he pecuniary loss must be determinate and must be proved with reasonable certainty, rather than left to speculation”); Chaussard v. Kansas City Southern R. Co., 536 S.W.2d 822, 828(7) (Mo.App.1976); Thienes v. Harlin Fruit Co., 499 S.W.2d 223, 229-230(8, 9) (Mo.App.1973); Kramer v. May Lumber Co., 432 S.W.2d 617, 621-622(4, 5) (Mo.App.1968); Moore v. St. Louis Southwestern Ry. Co., 301 S.W.2d 395, 402(6, 7) (Mo.App.1957); Waddell v. Metropolitan St. Ry. Co., 113 Mo.App. 680, 687, 88 S.W. 765, 767(7) (1905).

      . Plaintiffs’ evidence was that, at the time of the trial under review, plaintiff Blaine's life expectancy was 18.90 years and plaintiff Anna Maude’s life expectancy was 22.49 years. As the trial court commented and counsel agreed, in no event could plaintiffs recover for possible care of Frank during any period beyond plaintiffs’ life expectancy or death. McIntyre v. St. Louis & San Francisco Ry. Co., 286 Mo. 234, 258-259, 227 S.W. 1047, 1054-1055(14) (1921), cert. den. 255 U.S. 573, 41 S.Ct. 376, 65 L.Ed. 792; Morton v. Southwestern Tel. & Tel. Co., 280 Mo. 360, 379, 217 S.W. 831, 835(8) (1920); Dougherty v. Smith, 480 S.W.2d 519, 520(1) (Mo.App.1972). See McCord v. Schaff, 279 Mo. 558, 566, 216 S.W. 320, 321-2(4) (1919); Stevens v. Kansas City Light & Power Co., 200 Mo.App. 651, 654, 208 S.W. 630, 631(4) (1919).