author: WILHOIT, Judge.

text:
    James HUTTO, Carolyn Hutto, Peter Hutto, and James Construction Company, Inc., Appellants, v. Bernard H. BOCKWEG and Selective Securities, Inc., Appellees.
    Court of Appeals of Kentucky.
    March 23, 1979.

      Henry A. Triplett, Hogan, Taylor, Denzer & Bennett, Louisville, for appellants.
    F. Thomas Conway, Robinson, Tackett, DeMoss & Conway, Louisville, for appellees.
    Before MARTIN, C. J., and GANT and WILHOIT, JJ.
   WILHOIT, Judge.

This is ah appeal from a summary judgment granted by the Jefferson Circuit Court dismissing the claims of James Hutto, Carolyn Hutto, Peter Hutto, and the James Construction Company against Bernard Bockweg and Selective Securities, Inc., for fraudulent misrepresentations made in the sale of stock to the Huttos. The motion which the court granted asserted that the claims were barred by the statute of limitations section of the Kentucky Blue Sky Law, KRS 292.480(3).

The Huttos stated in their complaint that Bockweg and/or Selective Securities on July 10, 1973, sold 1000 shares of stock in the DMR Company to James Hutto, sold 100 shares to James Hutto as custodian for Peter Hutto, and sold 200 shares to the James Construction Company. The Huttos alleged that it was “fraudulently represented” that the shares had a greater value than they actually had, upon which representation the Huttos relied in buying the stock. The complaint also alleged that on November 5, 1973, James Hutto paid $5,000.00 to Bockweg which Bockweg had fraudulently represented to be “part payment to become an inside shareholder of Selective Securities, Inc.” The complaint was filed on April 8, 1977, more than 3 years after these transactions occurred.

The answer of Bockweg and Selective Securities raised the 3-year statute of limitations of KRS 292.480 as a bar to the action. The Huttos subsequently filed an amended complaint challenging the constitutionality of KRS 292.480(3) on the ground that it imposes a 3-year limitation for actions based on fraud in securities transactions while KRS 413.120(12), the general statute of limitation for fraud actions, imposes a 5-year limitation, and that therefore KRS 292.480 is unconstitutional “special legislation.” The Attorney General was properly notified that the constitutionality of a statute was being challenged but chose not to enter the action. The trial court dismissed the Huttos’ claims, granting summary judgment to Bockweg and Selective Securities.

KRS 292.480(1) authorizes the recovery of civil damages by the purchaser of a security against one who offered or sold the security in violation of the provisions of the Kentucky Blue Sky Law, or who offered or sold the security “by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made in the light of the circumstances under which they are made not misleading (the buyer not knowing of the untruth or omission) . . ..” KRS 292.480(3) provides that: “No person may sue under this section more than three (3) years after the contract of sale.”

Counsel for the Huttos abandoned at oral argument the first argument made in the brief — /. e., that the Blue Sky Law did not apply here because the statute is directed at unintentional acts rather than at fraudulent misrepresentation such as alleged in this case. We agree that there is nothing in the statute limiting it to unintentional acts and the Blue Sky Law applies to this case.

The Blue Sky Law applies only to the offer or sale of a “security.” KRS 292.-480(1). The Huttos concede that the DRM Company stock is a “security” but they argue that the $5,000.00 payment to Selective Securities, Inc., does not fall within the definition of a “security,” and, therefore, the 3-year Blue Sky statute of limitations does not apply to that transaction. The definition section of the Blue Sky Law, KRS 292.310, provides in relevant part that:

(13) “Security” means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, pre-organization certificate or subscription, transferable share, investment contract, voting-trust certificate of deposit for a security; fractional undivided working interest in oil or gas rights; or, in general, any interest or instrument commonly known as a “security,” or any certificate of interest in or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase any of the foregoing.

The $5,000.00 payment is characterized as an “inside shareholder fee.” According to the Huttos, inasmuch as the definition of security does not include “inside shareholder fee,” there was no security involved in the transaction. The letter written by James Hutto to Bernard Bockweg demanding return of the $5,000.00 refers to payment toward an “inside share of Selective Securities.” Further, return of the money was being demanded not because shares or certificates had not been delivered but because Selective Securities had not purchased Gen-Mar Pool Company as had been represented to Hutto. In an affidavit, Hutto stated that no stock nor any evidence of ownership had been issued to him, implying that such was contemplated at the time the transaction occurred. Bockweg stated in his deposition that Selective Securities, Inc., was organized under the “Kentucky Ten Man Rule,” authorizing ten inside shareholders who “are on the ground floor, so to speak, in that when the shares eventually go public [they] have a preferred position, because usually there’s a stock split before the shares are offered to the public.” The payment was clearly made to obtain the “insider’s stock.” Thus, the transaction involved a “security.”

The Huttos next argue that the 3-year statute of limitations contained in KRS 292.480(3) violates Sections 59 and 60 of the Kentucky Constitution. Section 59 prohibits the General Assembly from passing local or special acts concerning a number of subjects, including regulation of “the limitation of civil or criminal causes.” Section 60 provides in part that “[t]he General Assembly shall not indirectly enact any special or local act by the repeal in part of a general act, or by exempting from the operation of a general act any city, town, district, or county; but laws repealing local or special acts may be enacted.” The Huttos assert that inasmuch as there is a general 5-year statute of limitations for actions based on fraud, KRS 413.120(12), the shorter statpte of limitations contained in the Blue Sky Law is unconstitutional since there is no reason to make such a distinction between general actions based on fraud and actions based on fraud in stock transactions.

The shorter Blue Sky Law statute of limitations has withstood earlier legal challenges. See City of Owensboro v. First U. S. Corporation, Ky., 534 S.W.2d 789 (1975); First State Bank of Pineville v. Slusber, 267 Ky. 190, 101 S.W.2d 661 (1937). Yet, as the Huttos point out, these cases did not expressly consider the validity of the shorter statute of limitations in light of this constitutional argument. The relevant constitutional provisions do not prohibit the legislature from making reasonable classifications — where a classification is made upon a reasonable and natural distinction having a reasonable relationship to the purposes of the legislation, the constitution is not violated. Kentucky Milk Marketing and Anti-Monopoly Comm’n v. Borden Company, Ky., 456 S.W.2d 831 (1970).

While the constitutionality of the Blue Sky Law statute of limitations was not at issue in City of Owensboro v. First U. S. Corporation, we believe that the Court in that case recognized the distinction which supports the classification of actions based on fraud into general actions, which have the 5-year statute, and actions based on securities fraud, which have the 3-year statute. The Court explained that “[t]he lot of the [security] seller is made more onerous by the Blue Sky Statute in misrepresentation cases . . .. Some of the inhibiting strictures of the law of misrepresentation are relaxed and the price exacted is the shortened limitations period.” 534 S.W.2d at 791. We believe that the classification is reasonable, and, therefore, the shorter statute of limitations is constitutional.

The Huttos finally argue that the summary judgment should not have been granted because there was an issue of fact remaining as to the application of the statute to Peter Hutto, a minor, and because the limitation period as to the “inside shareholder fee” should have been computed from the date of James Hutto’s rescission of that transaction rather than from the date of the sale. With respect to the application of the statute of limitations to the transaction involving the minor, while there is a statutory provision (KRS 413.170) permitting a minor to bring suit within the same number of years after the minor reaches majority, this statute expressly applies only to the actions mentioned in KRS 413.090 to KRS 413.160. There is no such saving statute in the Blue Sky Act. Saving statutes are a matter of legislative choice — there is no authority for a conclusion that such a provision is a constitutional necessity. Fann v. McGuffey, Ky., 534 S.W.2d 770, 778 (1975).

The argument that the 3-year statute should not have begun to run until the date James Hutto rescinded the “inside shareholder fee” is refuted by the statute. KRS 292.480(3) provides that no person may sue under that section more than 3 years “after contract of sale.”

The judgment of the circuit court is affirmed.

All concur.


source: Caselaw Access Project

author: WINTERSHEIMER, Judge.

license: Public Domain

text:
    William George CALLAHAN, Appellant, v. Patricia Viola CALLAHAN, Appellee.
    Court of Appeals of Kentucky.
    March 23, 1979.

      Joseph V. Mobley, Louisville, for appellant.
    William Blackburn, Louisville, for appel-lee.
    Before HOWARD, REYNOLDS and WINTERSHEIMER, JJ.
   WINTERSHEIMER, Judge.

This appeal is from a judgment entered December 20,1977, which granted a dissolution of marriage and awarded maintenance and child support and divided the property of the parties.

The original dissolution was filed by the petitioner/appellee on March 4, 1976, and an amended petition was filed on October 5, 1976. The petitioner/appellee moved to reallot the case from Judge Oldham to Judge Stephenson. Trial was set for December 6, 1977, at which time the trial judge’s reporter did not appear and neither party had made arrangements for a private stenographer. Appellant’s deposition had been taken on November 22, 1976. At the conclusion of the evidence, the trial judge directed the respective lawyers to submit their proposed findings on behalf of their clients, and thereafter, adopted the findings of the pe'titioner/appellee’s attorney. This appeal followed.

The appellee has failed to file a brief in this appeal, and therefore, we will consider the appellant’s statements as to the facts and issues as correct, pursuant to Civil Rule 76.12(8)(c)(i).

Appellant sets out the following questions:

1) Did the trial court abuse its discretion in awarding maintenance and child support?
2) Did the trial court abuse its discretion in adopting the values set out in the wife’s proposed findings when the only proof introduced as to the marital estate is the husband’s assets and liabilities data?
3) Did the trial court commit reversible error in failing to draft its own findings?

This Court affirms the judgment of the trial court in regard to the award of maintenance and child support, but reverses as to the values of the marital estate and reverses the trial court for its failure to draft findings of fact as provided by Civil Rule 52.01.

A careful examination of the record here indicates that the trial court did not abuse its discretion in awarding an effective pay order of $650.00 per month as maintenance and child support to be paid out of an average income of the husband of $1,118.00 net per month. The award of $25.00 per week for maintenance is consistent with the facts in this case and the directions of KRS 403.200. We cannot say that the decision of the trial judge was clearly erroneous when viewed in the light of the duration of the marriage and the availability of the appellee to find more lucrative employment. The valuation errors do not require us to reverse the award of maintenance. Barnes v. Barnes, Ky., 415 S.W.2d 602 (1966).

It appears that the values placed by the trial judge upon the household furnishings and the 1969 automobile awarded to the appellee were clearly erroneous. The trial court found the furnishings to be worth $500.00 and the automobile to be valued at $100.00. We believe these findings are in error because the only proof as to the furnishings was the appellant’s valuation of $2,000.00. Moreover, the record supports the conclusion that the automobile was worth at least $650.00. Although we recognize the trial judge’s difficulty in arriving at findings in this respect because of the parties relative failure to introduce effective proof as to their assets and expenses, we do not believe this error can be overlooked.

The trial court committed reversible error in failing to draft its own findings as required by Civil Rule 52.01.

The appellate courts of this state have universally condemned the practice of adopting findings of fact prepared by counsel. In this case the judgment clearly recites that it was tendered by the attorney for the successful party. This practice has been repeatedly condemned because of the problems such findings present upon appellate review. Although we are totally sympathetic to trial judges and fully appreciate the difficulty of trial courts in handling the volume of cases that they must consider, particularly in an urban area where criminal and domestic cases frequently clog the dockets, we cannot condone the delegation by the trial court of its responsibility to make findings of fact, because based on such findings subsequent conclusions of law and the ultimate judgment results. It is critically important to the litigants to be assured that the decision making process is totally under the control of the trial judge. It is equally important for the appellate courts to be similarly confident if and when they become involved in the judicial process. Civil Rule 52.01; Kentucky Milk Marketing and Anti-Monopoly Commission v. Bordon Co., Ky., 456 S.W.2d 831 (1970); Brunson v. Brunson, Ky.App., 567 S.W.2d 173 (1978). Although under certain conditions, for purely clerical reasons, the preparation of some documents may be delegated to counsel, such a situation should be limited to routine matters and should be conducted under the close scrutiny of the trial court. United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964).

In this particular situation the poor record, which is compounded by a lack of stenographic transcription, exemplifies the damage of adopting findings as tendered by counsel. Upon review, it appears to us that the result of these findings is not consistent with the evidence in the record.

It is the holding of this Court that the trial judge did not abuse his discretion in awarding maintenance and child support, and therefore, that portion of the judgment is affirmed.

It is the further holding of this Court that the trial judge was clearly erroneous in adopting the values of the appellee in the findings of fact which he signed, and therefore, that portion of the judgment is reversed and remanded to the trial court with directions to reconsider the evidence in the record.

It is the further holding of this Court that the trial judge committed reversible error in failing to draft his own findings and in adopting findings presented by trial counsel that were not supported by the record.

All concur.


author: REINHARD, Presiding Judge.

text:
    Patricia E. McBRIDE, Petitioner-Appellant, v. Richard C. McBRIDE, Respondent.
    No. 39887.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 14, 1979.
    Leonard J. Frankel, Donald L. Wolff, Wolff, Frankel, McConnell & Passanante, Clayton, for petitioner-appellant.
    Charles Merz, Padberg, McSweeney, Slater, Merz & Reid, St. Louis, for respondent.
   REINHARD, Presiding Judge.

Mother appeals from an order of the trial court sustaining Father’s motion to modify child custody by transferring custody of 15 year old girl to him. She alleges error in Father’s failure to meet his burden of proof that he is a fit custodian for the minor child, that there has been a sufficient change of circumstances to require modification, or that the transfer was in the best interest of the child.

Parties were divorced June 22, 1972. At that time the parties entered into a stipulation as to custody of their five children. The wife was to get custody of two sons, ages 15 and 12 and a 9 year old girl, the subject of this action. The husband was to get custody of an 18 year old son and a 16 year old son. There was a provision for temporary custody in each parent as to the children of which the other parent had general custody.

On June 8, 1977, Mother filed a motion to modify the divorce decree, asking for an increase in child support payments as to the youngest child because of a substantial change in financial circumstances of the parties. Also on that date she filed a motion for contempt against Father alleging that he had unlawfully taken custody of the minor child on May 30, 1977. On the same date Father filed this motion to modify child custody, which was amended on June 22, 1977. Hearing was held on Father’s motion on October 11, 1977, with the child and the Mother testifying. The parties stipulated to the fact that “both the mother’s home and the father’s home . [were] . . . suitable so far as living quarters . . . [were] . . . concerned.”

At the hearing the child testified that she had been living with her father voluntarily for four and one-half months, and that she understood that her mother had the legal right to her custody. She stated that she had arguments with her mother, was adequately supervised by her father, and was happy with him and desired to live with him. She said that fighting with her mother was constant, that she was unable to even have a conversation with her mother, that she was unable to take the pressure of living with her mother, that she could not handle the difficulties with her mother, and that her mother had shown no signs of loving or caring for her. She further testified that while living with her mother she had suffered from a nervous stomach. She said she knew her father loved her, that she did not feel constant pressure living with her father, and that the other children whose custody had been given to the mother had previously moved to live with the father.

Mother testified her former husband had not been a good father. She alleged that the children had been abused and left without adequate food and clothing. Moreover, she pointed to problems concerning drug abuse, alcohol, and school truancy. Father did not testify.

Without making findings of fact, the court sustained respondent’s motion to modify child custody.

We first reject Mother’s allegation as to the failure of proof of fitness of the father to be custodian of the child. At the time of the original divorce she agreed to his fitness by her stipulation that he was to have custody of the two children and temporary custody of the others. See Olson v. Olson, 184 S.W.2d 768, 773 (Mo.App.1945). When the court followed the stipulation and granted him custody of two children and temporary custody of the others, the court necessarily found at that time he was a fit parent. Pelts v. Pelts, 425 S.W.2d 269, 270 (Mo.App.1968). These circumstances, in addition to the testimony of the child regarding her father’s fitness as a parent were sufficient to sustain his burden. Because of its superior position for judging credibility, the circuit court could disbelieve the testimony of the mother.

Mother next contends that Father failed to show any significant change of circumstances that would warrant modification of the custody decree.

Once custody has been fixed, the court may make a modification only upon a showing of changed circumstances of the child or custodian as manifested by facts which have arisen since the prior decree or which existed at the time of the decree but were unknown to or concealed from the court. Furthermore, the modification must serve the best interests of the child. § 452.410 RSMo (Supp.1975); J. L. W. v. D. C. W., 519 S.W.2d 724, 729 (Mo.App.1975). This same general rule was applied by the courts before the enactment of the Dissolution Statute. Lickteig v. Goins, 458 S.W.2d 596, 599 (Mo.App.1970). The burden of showing a change of conditions requiring the transfer of custody is on the moving party. L. H. Y. v. J. M. Y., 535 S.W.2d 304, 307 (Mo.App.1976). We believe that evidence of the change in the daughter’s age, coupled with her testimony as to the deteriorated nature of her relationship with her mother, was sufficient to meet this burden. Specifically, the increased age of a child since the previous custody order can, by itself, constitute a “changed circumstance” which a court may properly consider in modifying the prior custody order. Blair v. Blair, 505 S.W.2d 444, 447 (Mo.App.1974); Cascio v. Cascio, 485 S.W.2d 857, 859 (Mo.App.1972).

Section 452.375 RSMo. (Supp.1975) states:

The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:
(1) The wishes of the child’s parents as to his custody;
(2) The wishes of a child as to his custodian;
(3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child’s best interests;
(4) The child’s adjustment to his home, school, and community; and
(5) The mental and physical health of all individuals involved.

The mother contends that the court placed too much emphasis on the wishes of the child and that it did not consider the other factors enumerated in the statute. In L. H. Y. v. J. M. Y., 535 S.W.2d at 306, the court stated: “In our review of this case, we proceed on the presumption that the trial court studied all of the evidence thoroughly and decreed custody in the manner it believed would be in the best interests of the child.” The trial court is “in a better position not only to judge the credibility of the witnesses and the persons directly but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.” (Emphasis in original.) E_ (S_) v. E_, 507 S.W.2d 681 (Mo.App.1974).

The evidence in the record revealed the father’s love for the child, the child’s maturity and wishes, the nature of her existing relationship with her mother, and the suitability of the living quarters offered by the father as well as the mother. We believe this to be sufficient evidence to support the court’s determination that transfer was in the best interests of the child. Also in this regard, we note the degree of effort made by the trial court to determine from the child the basis for her preference for her father. The court did not rely on a simple statement of choice. Applying the standard of review of Murphy v. Carron, 536 S.W.2d 30 [1] (Mo.banc 1976), we affirm.

This case should not be used for the proposition that a child can always pick its custodial parent. We are aware of the pressures upon both children and parents; further, we recognize that children can be enticed by one parent from the other by many factors, including the desire of a child to get away from strong discipline. In considering the wishes of the child, it is important to ascertain and evaluate the basis for these wishes, so that the court can properly place this element in its proper perspective in deciding what is in the best interest of the child. The record in this case reveals extensive conversation between the court and child as to many factors of the child’s life, past, present, and future. The court did not proceed as an advocate, maintained its proper stance, and from the testimony had much more information to consider than simply the child’s expressed wishes.

Affirmed.

CLEMENS and GUNN, JJ., concur.


text:
    Buddy E. ALLEN, Appellant, v. James LaPAGE et al., Respondents.
    No. 40337.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 27, 1979.

      Dennis C. Brewer, Brewer & Gerhard, Perryville, for appellant.
    John G. Meyer, Pros. Atty., Perryville, Richard L. Wieler, J. Kent Lowry, Arnold R. Day, Asst. Attys. Gen., Jefferson City, for respondents.-
   REINHARD, Presiding Judge.

Buddy Allen appeals from a circuit court order affirming the action of the director of revenue revoking his driver’s license based on alleged convictions of traffic offenses in another state.

On October 21, 1977, the director of the Missouri Department of Revenue mailed to appellant notice that his Missouri driver’s license was being revoked for one year due to an accumulation of 12 or more points. The notification contained appellant’s driving record, which showed two assessments of 12 points each for violations allegedly occurring in Illinois. On November 10, 1977, appellant filed his petition for review in the circuit court, alleging that the decision of the director of revenue was based on insubstantial and incompetent evidence and constituted an abuse of discretion.

The trial on the petition was held on March 14, 1978. As Exhibit Number 1 and its only evidence, the Department of Revenue presented a certified copy of that department’s records regarding the driver’s license of Buddy Allen. The exhibit included the following: a copy of a traffic ticket issued by an Illinois State Trooper to appellant charging him with reckless homicide under Ill.Rev.St. Ch. 38, § 9-3; a copy of an order of revocation from the Illinois Secretary of State to the appellant, reciting that the revocation of appellant’s Illinois driver’s license was based on his conviction for reckless homicide; a copy of a traffic ticket issued by an Illinois State trooper to appellant charging him with driving under the influence of intoxicating liquor, in violation of Ill.Rev.St. Ch. 95½, § ll-501(a); a copy of a second order of revocation from the Illinois Secretary of State to appellant, the revocation based on a reported conviction of operating a motor vehicle while under the influence of intoxicating liquor; and a notice of loss of driving privileges from the Missouri director of Revenue to appellant, based in part on the alleged Illinois convictions and effective as of November 11, 1977. Appellant objected to the introduction into evidence of each of these documents as being both hearsay and irrelevant. The trial court overruled each of these objections, denied appellant’s motion for summary judgment, and on the basis of this evidence alone, dissolved its temporary restraining order against the revocation order of the Department of Revenue. Appellant then brought this appeal, and the court stayed the revocation order pending the resolution of the appeal.

Appellant first posits error in the trial court’s refusal to grant his motion for a summary judgment, contending that the director of revenue failed to prove he had proper notice of a conviction in another state. Appellant argues that these documents offered to prove notice were inadmissible because either hearsay or irrelevant. Specifically, appellant finds inadequacy in the lack of proper certification of these documents.

§ 302.160, RSMo 1969 provides that “[t]he director of revenue is authorized to suspend or revoke the license of any resident of this state upon receiving notice of the conviction of such person in another state of an offense therein which, if committed in this state, would be grounds for . suspension or revocation . . ." (Emphasis added) Nowhere in the statute or the case law is there any requirement that said notice be a certified copy of the court records of that state.

In Merrigan v. Spradling, 564 S.W.2d 615 (Mo.App.1978), our Kansas City brethren confronted the question of the admissibility of Merrigan’s driving record maintained by the Department of Revenue, records similar to those admitted here. The records were certified by the custodian of records of the drivers license bureau, as were the records offered here. Merrigan argued that the records should not have been admitted unless the report of the conviction maintained by the director was properly certified under § 490.130. The court found that the certification requirements of § 490.130 were not applicable to that situation and ruled that the records maintained by the Department of Revenue were admissible. In so holding the court also noted that under § 301.430, the clerks of courts of record in Missouri are to send reports of convictions to the director of revenue who is to maintain records of those convictions. 564 S.W.2d at 617; § 301.430.

Similarly, the statutes of Illinois contain provisions which require the clerks of Illinois courts to send reports of convictions of traffic offenses to the Secretary of State of Illinois, records which the Secretary of State is to maintain. S.H.A. Ch. 95½ §§ 6-204 and 6-117. The Illinois statutes further authorize the Secretary of State to send a copy of a report of a conviction of a non-resident to the motor vehicle administrator of the state where the party resides, and require the Secretary of State, upon the revocation in Illinois of a non-resident’s operating privilege, to forward a certified copy of the record of such action to the vehicle administrator in the state where the party resides. S.H.A. Ch. 95⅛, § 6-202(b) and (c). Therefore, the traffic records maintained by the Director of Revenue comprised documents required to be kept by the Illinois authorities.

Although Merrigan did not involve convictions from another state, the case does suggest that it is the certification of the records kept by the director that is significant, not certification of the underlying information forwarded to him from either Missouri courts or the courts and administrators of other states. Furthermore, as to the Department’s exhibit comprising copies of the records of that department, § 302.312 provides that copies of all papers in the department’s records and files are admissible the same as the original, if properly certified by the custodian or the director.

The driving records of appellant maintained by the Department of Revenue were properly certified by the custodian of records of the Drivers License Bureau of that department. As noted above, the relevant parts of this record were two Illinois traffic tickets issued to appellant and two orders of revocation from the Illinois Secretary of State to appellant. Though the copies are not of the highest quality, the tickets contain, inter alia, the name of appellant, his license number, the dates, location and nature of the alleged violations, the statutory provisions violated, and the signature of the issuing officers. Furthermore, the reverse sides of these tickets, although generally indecipherable, each contain a finding of “guilty”, a fine, and the signature of an undesignated party. As for the orders of revocation, these recite the statutory provision authorizing revocation and the conviction warranting the revocation. These orders are designated at the bottom as “FOR FOREIGN STATE” and contain both the signature of the Secretary of State of Illinois and the seal of the State of Illinois. These items constituted notice to the director of revenue within § 302.160, and the director was not obligated to look beyond the notice provided by the Illinois authorities. Farnsworth v. Director of Revenue, 573 S.W.2d 135, p. 137 (K.C.D.Mo.App.1978). The evidence offered was competent and sufficient to show that the director had proper notice of a conviction in another state.

As his second point of error, plaintiff contends the Department of Revenue failed to meet its burden of showing that the Illinois convictions, if committed in Missouri, would have resulted in an assessment of 12 points in Missouri. We cannot agree.

The records offered reveal that appellant was convicted in Illinois of “operating a motor vehicle while under the influence of intoxicating liquor,” in violation of Ill.Rev.St. Ch. 95½, § ll-501(a). § 302.-302(7), RSMo (Supp.1975) provides that “[d]riving while in an intoxicated condition” shall warrant an assessment of 12 points. The Missouri Supreme Court in McIntyre v. David, 431 S.W.2d 216, 220 (Mo.1968) held that the phrase “under the influence of intoxicating liquor” as used in the California Vehicle Code was synonymous with the phrase “while in an intoxicated condition” as used in the Missouri Statutes §§ 564.440 and 302.302(7), RSMo 1969. We find that those same phrases are also synonymous as used in the Ill.Rev.St. Ch. 95½, § ll-501(a) and, again, §§ 564.440 and 302.302(7) RSMo (Supp.1975).

Appellant’s other conviction on which his revocation was based was of “reckless homicide” under Ill.Rev.St. Ch. 38, § 9-3. “Reckless homicide” is defined in Ill.Rev.St. Ch. 38, § 9-3(b)(2) as a Class 4 Felony. Although there is no statutory definition of “reckless homicide” in Missouri, the offense of reckless homicide, as defined in Ill.Rev.St. Ch. 38, § 9 — 3, is equivalent to the offense of manslaughter by culpable negligence in the operation of an automobile. § 559.070; State v. Achter, 448 S.W.2d 898 (Mo.1970); State v. Cutshall, 430 S.W.2d 173 (Mo.1968). Furthermore, manslaughter by culpable negligence in the operation of an automobile is a felony. §§ 556.020 and 559.140. § 302.302(9) provides that conviction of any felony involving the use of a motor vehicle warrants an assessment of 12 points. Therefore, taking judicial notice of the statutes of Missouri and the statutes of Illinois, § 490.080, we find also that there was sufficient evidence to support the finding that the conviction for reckless homicide, if committed in Missouri, would have resulted in an assessment of 12 points.

Affirmed.

CLEMENS and GUNN, JJ., concur.

      . Other documents were included in appellant’s driving record offered as Exhibit 1. such as a Missouri Uniform Traffic Ticket, various correspondence between the Department of Revenue and appellant, and a copy of the court order staying the revocation of appellant’s license. While some of these items may not have been relevant to the issue of notice of convictions from other states, their admission was in no way prejudicial.'

      . Unless otherwise indicated, all statutory references are to RSMo 1969.


author: WILLIAM L. RAGLAND, Special Judge.

text:
    STATE of Missouri, Respondent, v. Francis Guy PULIS, Appellant.
    No. 10664.
    Missouri Court of Appeals, Southern District, Division Two.
    March 6, 1979.
    Motion for Rehearing or Transfer Denied March 22, 1979.

      John D. Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Lloyd R. Henley, Springfield, for appellant.
   WILLIAM L. RAGLAND, Special Judge.

Defendant appeals from a conviction by a jury of burglary in the second degree and stealing. Under the second offender act, the court assessed his punishment at six years imprisonment on the charge of burglary and three years on the charge of stealing. The sentences are to run consecutively. We affirm.

A building in Springfield, Missouri, occupied by John F. Connelly Plumbing and Heating, Inc., was burglarized on the evening of August 31, 1976 or the early morning of September 1, 1976. Entry was gained by breaking and raising a window. Upon inspection of the premises, a quantity of copper tubing was discovered to be missing. On September 2, 1976, defendant, accompanied by one or more persons, sold three hundred forty pounds of copper tubing later identified as the property stolen, to Karehmer Iron and Metal Company, receiving in return $190.40. Defendant did not dispute the transaction at Karehmer’s, but maintained that he sold the property as an accommodation to one Mac Asbell, who allegedly found the copper tubing while walking along some railroad tracks. Defendant also claimed to be at his father’s house during the entire time in question. This testimony was corroborated by defendant’s father and Asbell.

Defendant first challenges the sufficiency of the information. He complains that it failed to describe the property stolen with sufficient specificity. The goods allegedly stolen were set out as “the above-described personal property,” the reference being to the burglary portion of the information which specified a “building in which divers goods and other valuable things were then and there kept and deposited, and copper tubing, . . . ”

In determining the sufficiency of an information, constitutional and statutory requirements must be satisfied. The defendant in a criminal case has a right to demand the nature and cause of the accusation and the information must be sufficiently definite to enable him to prepare his defense. State v. Tandy, 401 S.W.2d 409 (Mo.1966); V.A.M.S.Const. art. 1, § 18(a). In addition, in criminal prosecutions, there must be compliance with Rule 24.01 [V.A. M.R.] which provides that the information must allege essential facts constituting the offense charged. State v. Frankum, 425 S.W.2d 183 (Mo.1968). As will be discussed later, the provisions of Rule 24.03 must be also considered when the information lacks details or the particulars, of the offense.

In the information filed in the instant case, the allegations follow the language of the statutes and are therefore sufficient to satisfy constitutional and statutory requirements. State v. Tandy, supra. The next issue to be resolved is whether the description of the stolen property was sufficient to comply with the requirement that “essential facts” must be alleged. We conclude in the affirmative.

Defendant relies on State v. Rose, 428 S.W.2d 737 (Mo.1968) wherein the court was concerned by the lack of specificity in the amended information. In that case, the property was described in the amended information as “the said goods, wares, and merchandise, personal property of Raymond Wright.” In the portion of the information charging burglary there was language indicating that the theft was from a jewelry store. This was the only indication of the nature of the property. While this practice was criticized, no reversal occurred under the circumstances of that case. Here, while it might have been possible to identify the property allegedly stolen in more detail, such as to size, its description as “copper tubing” was sufficient to inform the defendant of the essential facts and was clearly more specific than the charge in Rose.

Rule 24.03 provides that when an information alleges essential facts constituting the offenses charged but fails to inform the defendant of the particulars of the offenses, the defendant may file a bill of particulars. Thus, if the information was lacking in details as to the description of the stolen property, defendant should have filed a bill of particulars. State v. Rose, supra. The reviewing court must assume that a defendant was sufficiently informed of the details to prepare his defense where the information alleged essential facts constituting the offenses and the defendant did not file a motion for a bill of particulars. State v. Edmonds, 347 S.W.2d 158 (Mo.1961). Failure of an information to-give all desired details may be waived by the defendant’s failure to request a bill of particulars. State v. Frankum, supra, 425 S.W.2d at 189; State v. Kesterson, 403 S.W.2d 606 (Mo.1966). We therefore find no merit to defendant’s first assignment of error.

Defendant in his second assignment of error presents two points. Paraphrased, he complains (a) that the metal delivered to the scrap buyer was never sufficiently identified as the stolen copper and (b) that the ownership of the stolen copper was never established in the corporate owner mentioned in the information and instructions. He therefore asserts that there was insufficient evidence for submission of the case to the jury and his motion for judgment of acquittal should have been sustained. Although the evidence received by the jury was similar as to both identification and ownership, we will, as done by defendant in his brief, discuss the sufficiency of such evidence as separate issues. It should be noted here, however, that the standard of review is the same on both points. In testing the sufficiency of the evidence in a criminal prosecution by motion for a judgment of acquittal, facts and evidence and favorable inferences reasonably to be drawn therefrom must be considered in the light favorable to the state and all evidence and inferences to the contrary must be disregarded. State v. Strong, 484 S.W.2d 657 (Mo.1972).

With regard to the identification of the copper tubing, (a) defendant argues that the identification was “summary” in that it was “not based on actual recognition, but on mere suspicion.” He complains further that there was no testimony about the sizes or other characteristics of the material stolen. As will be noted later, the record in the case does not support such allegations of the defendant. The thrust of defendant’s argument is that the identification of the property by the witnesses, standing alone, was insufficient to make a submissi-ble case. With two exceptions, cases cited by defendant, while stating general requirements applicable to sufficiency of identification, are not factually analogous to the case at bar and are of little assistance. State v. Lease, 124 S.W.2d 1084 (Mo.1939) states that a case is too frail for submission to. a jury if the goods never are identified clearly as those charged to have been carried away from the complaining witness. The identification of the alleged fruits of larceny must be “by the most direct” testimony of which the case is susceptible. State v. Sloan, 548 S.W.2d 633 (Mo.App.1977).

Defendant relies on, and emphasizes, two cases, State v. Hampton, 275 S.W.2d 356 (Mo.banc 1955), and State v. Thompson, 428 S.W.2d 742 (Mo.1968), which, while closely in point, may be distinguished from the case at bar. In Hampton, the property allegedly stolen consisted of a roll of dimes wrapped in paper “like those normally used by banks to wrap dimes.” The court stated, at p. 358:

“In our view, while the fact that a five-dollar roll of dimes, wrapped in the same colored paper as the missing roll, was the same day found in the possession of defendant was a circumstance admissible in evidence; nevertheless, inasmuch as there was no evidence sufficiently identifying the roll of dimes defendant had as that taken from the tavern, this circumstance was not substantial evidence inconsistent with a reasonable hypothesis of defendant’s innocence.” (emphasis ours)

In Thompson, the property allegedly stolen consisted of one new brown leather wallet, bearing the name of “Swank”; one new pair of black leather gloves, bearing the legend “made in Japan”; eighteen hundred pennies, and other articles. Identification of the property allegedly stolen was attempted by the owner who testified that the gloves were “exactly like” those taken from his home although he had stated previously that his gloves had a black lining, whereas those found on the defendant had a white lining. He further testified that his gloves and those found on defendant were not, so far as he could tell, different from any other pair of black leather gloves made in Japan. He could not identify the wallet as being his or “exactly like” his. He stated that he could not identify the [ninety-four] pennies on defendant’s person. The court found that the identification was insufficient. The court observed that the conviction could not be upheld merely because defendant happened to have in his possession gloves “exactly like” those stolen, “exactly like” many and possibly hundreds of others. Thus, where there is no evidence presented on identification, as in Hampton, or where the evidence was not substantial, casting a mere suspicion, as in Thompson, it was held that the identification was insufficient. It should be noted that both cases involved property in common and everyday usage.

Clearly, the evidence presented in the instant case bears no resemblance to the evidence presented in Hampton or Thompson. Witness Edwards, president of the corporate occupant of the burglarized building, identified the copper tubing by its size and brand and noted that to his knowledge he was the only one in the area with such tubing. He also identified one sample by the markings of the company that sold it. He concluded that he was “dead certain” the copper was his and if he had any doubts, he “wouldn’t be sitting here this afternoon.” The witness Edwards identified the property and indicated the reasons for this identification. Since copper tubing is not of common source and use, the usefulness and believability of the witness’s identification are greatly increased. The identification of the copper tubing was certainly beyond the minimum demanded for sufficiency. We therefore hold that sufficient evidence was presented to make a submissi-ble case.

As stated above, defendant complains (b) that the ownership of the stolen copper was never established. He directs our attention to the fact that witness Edwards, in his testimony, did not specifically state that he was the owner of the stolen goods. His contention in that regard is accurate; however, his conclusion that the record is barren of evidence concerning ownership, as will be demonstrated, is in error. Ownership, like every other element of the offense of stealing, can be proven by circumstantial evidence. City of Kansas City v. Stoner, 424 S.W.2d 768 (Mo.App.1968); State v. Brewer, 325 S.W.2d 16 (Mo.1959); State v. Logos, 339 Mo. 862, 98 S.W.2d 564 (1936). Lawful custody and control of property, even though actually owned in the formal or strict sense by another, is in the eyes of the law a sufficient attribute of ownership to support an averment and proof of ownership against one charged with stealing property belonging to another. State v. Webb, 400 S.W.2d 84 (Mo.1966); State v. Hill, 528 S.W.2d 798 (Mo.App.1975). In prosecutions for larceny, proof of possession is sufficient as to ownership. State v. Campbell, 386 S.W.2d 383 (Mo.1965); State v. Gale, 322 S.W.2d 852 (Mo.1959); 52A C.J.S. Larceny § 13 b., pp. 437 — 438.

Thus, in the instant case, the testimony indicating that the copper tubing was in use by the company, in their possession, stored on their premises and identified by the president of the corporation constituted sufficient evidence to make a submissible case on the question of ownership. The custody and control over the stolen tubing shown by the evidence was sufficient proof. Additionally, throughout the testimony, witness Edwards referred to his business, his building, his copper and used his invoices in calculating the value of the stolen property. From this testimony his ownership of the stolen property can certainly be inferred.

Defendant cites State v. Cline, 452 S.W.2d 190 (Mo.1970) which, in our opinion, supports the position of the state rather than the defendant. In that ease, the property allegedly stolen consisted of watches which were identified by the owner by their type and retail value. The evidence was found to be sufficient to show ownership. Defendant also cites State v. Lackey, 230 Mo. 707, 714, 132 S.W. 602, 604[4] (1910), for the proposition that a conviction for stealing cannot stand without proving ownership of the property stolen; and State v. Boswell, 153 Mo.App. 338, 341, 133 S.W. 99, 100[3] (1910), for the proposition that proof of ownership of a building does not prove ownership of its contents. There is no quarrel with these authorities; they are simply not in point because the evidence heretofore summarized was amply sufficient to make a submissible case.

Defendant’s third assignment of error is that the jury should have been admonished or a mistrial declared when the prosecuting attorney asked a defense witness if he had ever had contact with the police department. The alleged improper questions of the prosecutor occurred during the cross-examination of witness Mae Asbell who testified that he had found the copper tubing near some railroad tracks. The exchange, with the obvious purpose of impeachment, was as follows:

“Q. Have you got a criminal record, Mr. Asbell?
A. No, sir.
Q. None at all?
A. No, sir.
Q. You’ve had no contact with the Springfield Police Department or the Greene County sheriff’s office?”

Defendant’s prompt objection was then sustained and the exchange ended. The state in its brief admits the last question was improper and we agree. Section 491.050 RSMo 1969, provides that the conviction of a criminal offense may be proved to affect the credibility of a witness. Mere arrest or other contact with a law enforcement agency ordinarily will not supply impeachment. State v. Lockhart, 507 S.W.2d 395 (Mo.1974). For this reason, authority condemns the prosecutorial practice of asking about being under suspicion, or investigation, or whether officers have visited the witness. State v. Sanders, 360 S.W.2d 722 (Mo.1962). The question to be answered here, however, is whether the bounds of the statute were exceeded to an extent sufficient to reverse a judgment of conviction. We conclude in the negative.

The eases relied on by appellant to illustrate prejudicial violations of this statute all involye extended or in-depth cross-examination of a witness, clearly unlike the questioning in this trial. No cases are found which hold that error occurred when questioning was immediately halted by objection. The primary case relied on by appellant, State v. Lockhart, supra, only held that such continued cross-examination would not be permitted. Here, continued cross-examination was not permitted by the trial judge below. The second case cited by appellant, State v. Sanders, supra, involved extended questioning over the objections of the attorney. Since such questioning did not occur in the trial below, this decision is not persuasive.

Any possible adverse effect upon defendant by the mere asking of the one question was adequately dealt with by instructions given to the jury. The jury was instructed, MAI-CR 2.02, “ . . .If the court sustains an objection to a question, you will disregard the entire question and you should not speculate as to what the answer of the witness might have been...."

By sustaining the objection and giving this instruction, the trial judge did all that was proper and all that was requested of him. Any further admonitions or declarations by the judge would have been excessive, unnecessary, and clearly un-required. There was no motion for mistrial, or request for further admonition or cautionary instruction. The appellant should not now be able to claim error, when the only relief he requested at the time was granted. State v. Cissna, 510 S.W.2d 780 (Mo.App.1974).

Defendant’s fourth and final point is that the court erred in overruling his objection to the filing of the amended information because it did not contain the section number of the second offender act, § 556.280 RSMo 1969. He asserts that such action by the trial court violated Rule 24.01 which requires both the designation of the statutes containing the proscribed conduct under which the defendant is charged and the section of the statutes which fixes the penalty or punishment therefor. His argument alludes to the use of the term “fix.”

In the instant case, the information alleged the necessary facts to support the application of the second offender act. When defendant objected to the omission of the section number of the second offender act, the trial court observed:

“That portion of the information bringing into play the second offender act is not a part of the substantive charge against the defendant but would only go to enhance or to alter the procedure for imposing punishment in the event the Court should find the defendant is a second offender, so the Court does not believe that those sections need to be shown on the face of the information.”

It is elementary that the second offender act is not an act charging an offense, nor does it fix the penalty or punishment therefor. The act simply operates to take the matter of punishment away from the jury and place it with the judge. The use of the statute is not a substantive charge against defendant, and the court below was correct in its understanding of the meaning and intent of the statute. The only case cited by defendant, McKann v. Town of Irvington, 133 N.J.L. 63, 42 A.2d 391 (1945) involves a statutory requirement to fix compensation and is not in point.

The judgment is affirmed.

BILLINGS, C. J., and HOGAN, J., concur.


author: KELLY, Judge.

text:
    Esther SANDERS, Plaintiff-Appellant, v. Robert J. RICHMOND, Defendant-Respondent.
    No. 39019.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 13, 1979.

      David 0. Danis, Whalen, O’Connor, Danis & Tobben, St. Louis, for plaintiff-appellant.
    Donald L. James, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Lawrence B. Grebel, Michael R. Noakes, St. Louis, for defendant-respondent.
   KELLY, Judge.

This appeal presents the question whether a widow’s claim for the death of her husband caused by injuries sustained when two motor boats collided on the Mississippi River is barred by the decedent’s contributory negligence. We hold that it is not, reverse the judgment entered in the trial court for the defendant, and remand the cause for a new trial.

Charles L. Sanders, the decedent, was, on July 12, 1975, the owner of a 16 foot long john-boat which was powered by a 20 horsepower motor mounted on the stern of the john-boat. The john-boat was not equipped with running lights as required by law.

Sometime between the hours of 10:00 p. m. and 11:00 p. m. on that date, decedent and his brother-in-law, Edward A. Dillon, got under way from a boat dock on the Missouri bank of the Mississippi River near an area known as Lake Shore for the purpose of checking some trot lines on Two Branch Island. Decedent, who was seated on a swivel-type chair on the thwart just forward of the stern, and who was operating the outboard motor from that position, was wearing a camouflage jacket. He also had a lighted reflector lamp attached to his head. Mr. Dillon was seated on a thwart somewhat forward of the decedent and facing aft. He was wearing a reddish-orange life jacket.

Two Branch Island is located approximately in the middle of the river at this point and almost directly northward across the river from whence decedent and his brother-in-law took departure. To reach the island it was necessary for decedent to proceed across the main channel of the Mississippi River which at this point runs in an approximately east-west direction.

The weather was clear and the waters calm.

As the john-boat with decedent and Mr. Dillon in it was proceeding northwardly across the Mississippi River heading for Two Branch Island at a speed of approximately 12 to 15 miles per hour, Mr. Dillon, who was looking at decedent’s clubhouse astern, which was situated near the dock they had left, heard a thump and was knocked unconscious. At no time prior to feeling the thump did he see any approaching lights or hear the sound of an engine. He was uncertain from what direction the john-boat he was in was collided with by the other vessel. When he regained consciousness Mr. Dillon observed the decedent lying in the stern of the john-boat, apparently unconscious.

According to Mr. Dillon, when decedent left the dock and got underway to go to Two Branch Island, the light he had on his head, which “looked like a miner’s light,” was turned on and shed some illumination. On cross-examination he admitted that he did not know whether this light on decedent’s head was still on when the collision occurred, and that even if it were, it would have been directed where decedent was looking at any given time.

Robert J. Richmond, the respondent, was operating a 19 foot Sidewinder run-about, powered by a 455 jet engine, proceeding upstream at an estimated speed of 18 to 20 miles per hour enroute from a restaurant where he and a lady passenger had dined. The run-about was equipped with the running lights required by law for motor boats of this class. The dashboard lights on the craft were turned off. He was traveling in the main channel of the river, and was looking dead ahead. At the speed he was traveling the boat he was operating planed; and at the time of the collision the boat was planing and this was the basis of his estimate of the speed of his motorboat when the collision occurred. According to the evidence, this boat was owned by Julia Richmond, respondent’s mother.

The passenger in the boat being operated by respondent was seated on the port side of said boat, across from the respondent as he steered the boat from the starboard side. She was facing him but she was not turned from side to side, she was more or less looking out across the water.

Immediately prior to the collision, the respondent saw a shadow to his left; but he saw no lights. He never saw the decedent or the john-boat until after the collision. His passenger’s first notice of the collision was the bump, which caused her to be “bumped up into the air.”

The points of collision, as evidenced by photographs of damage to the two craft were the bow of the runabout at the waterline, and the starboard side of the john-boat just forward of the thwart on which decedent was sitting as he was operating the outboard motor on the john-boat.

The jury returned a verdict for the respondent and the trial court entered judgment accordingly. The appellant’s timely motion for new trial was overruled and this appeal followed.

On appeal five points are relied on as grounds for reversing the judgment of the trial court and the remanding of the cause for a new trial. Each is directed to whether the respondent was entitled to submit the contributory negligence of the decedent to the jury as a bar to his widow’s claim for wrongful death. As we have said herein-above, we hold that contributory negligence was not a complete bar to appellant’s claim and the trial court erred in submitting the contributory negligence of the decedent to defeat his widow’s claim.

The injuries from which the decedent came to his death were incurred as the result of a collision between two motorboats on the Mississippi River. The Mississippi River at the point where the collision occurred, approximately one-half the distance between the Missouri bank of the river and Two Branch Island, and between miles 230 and 229, is a navigable stream and motorboats operated thereon at this location are subject to the rules of navigation applicable to the Mississippi River and its tributaries, the Atchafalaya River and the Red River of the North. 33 U.S.C. § 301 (1970). The Federal Boat Safety Act of 1971, 46 U.S.C. § 1459, with one exception, preempts any state law or regulation which establishes “any boat or associated equipment performance or other safety standard, or which imposes any requirement for associated equipment” except where state boating safety programs are directed at implementing and supplementing the Act. (The exception has no application to the issues in this case.)

Appellant contends that her claim is one brought under the law of admiralty and that her late husband’s contributory negligence does not bar recovery because under Federal Maritime Law contributory negligence of her decedent may be considered only in mitigation of damages as justice requires.

Respondent, on the other hand, contends that the appellant did not plead the non-statutory federal maritime wrongful death cause of action established in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970) which would have been cognizable in federal court on its admiralty side, but, that she brought her action in a state court under the Missouri Wrongful Death Statute, § 537.080 RSMo.1969, and therefore her husband’s contributory negligence is a complete bar to her claim. Sec. 537.085 RSMo.1969. We conclude, and we also believe respondent concluded, that the appellant pled the federal maritime cause of action for wrongful death recognized by the Supreme Court of the United States when it decided Moragne v. States Marine Lines, Inc., supra.

To fully understand the reason for this conclusion it is essential that we review the pleadings in this cause in chronological order as they appear in the transcript on appeal. Appellant filed her petition for damages on the 13th day of August, 1975. In this petition she joined Julia Richmond, as the owner of the runabout, and Robert J. Richmond, as its operator. The petition as it appears in the record is as follows:

“PETITION

Comes now plaintiff and for her petition against defendants, states as follows:

1. Plaintiff and. defendants are residents of St. Charles County, Missouri.

2. On and prior to July 12, 1975, Charles L. Sanders was plaintiff’s lawful husband, and plaintiff brings this action as the surviving spouse of said Charles L. Sanders, deceased, as provided by Section 537.070 and 537.090, R.S.Mo.1959, (sic) as amended.

3. Defendant Julia Richmond was the owner of a 1973 Sidewinder boat # 29VJ113 and defendant Robert J. Richmond was the operator of said boat on July 12,' 1975, at the time of the collision herein referred to.

4. Charles L. Sanders met his death on July 12, 1975, as the direct result of the negligence and carelessness of defendants in the following respects to-wit:

(a) Defendants operated said boat in a careless and wreckless (sic) manner.
(b) Defendants operated said boat at an excessive speed too fast for the conditions as they existed.
(c) Defendants failed to keep a lookout while operating said boat.
(d) Defendants failed to warn of their approach.
(e) Defendants failed to properly light their boat after dark.

All of the aforementioned acts of carelessness and negligence resulted in defendants’ boat colliding with the person of Charles L. Sanders and causing wounds to the said Charles L. Sanders from which he expired on July 12, 1975.

5. Said collision occurred on the Mississippi River, a navigable stream in the State of Missouri.

6. The plaintiff was dependant (sic) upon her said husband for her support.

7. As a direct and proximate result of the foregoing negligence and carelessness of defendants, plaintiff has been deprived of the support, aid, society, companionship and consortium of her aforesaid husband and has been caused to incur the necessary burial expense in the approximate sum of Two Thousand and No/100 Dollars ($2,000.00).

WHEREFORE, the premises considered, plaintiff prays judgment against defendants in the sum of TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($250,000.00) and for her costs herein expended.

FILED: August 13, 1975”

On September 4, 1975, the defendants filed a joint Answer admitting that they were residents of St. Charles County, Missouri, denying each and every other allegation of plaintiff’s petition and alleging that her claim was barred by the decedent’s contributory negligence. Thereafter, on September 10, 1975, plaintiff filed a motion to strike defendant’s Answer and as grounds for said motion alleged that the cause of action arose out of injuries that occurred on the Mississippi River, a navigable stream, under the jurisdiction of admiralty law and that under the law of admiralty, contributory negligence is not a defense to a negligence tort action. The record does not show whether this motion was argued, but on April 22, 1976, Julia Richmond filed a Separate Amended Answer wherein she abandoned the defense of contributory negligence raised in her prior Answer, and instead raised an affirmative defense that she was the owner of the vessel mentioned in plaintiff’s petition and pursuant to the Admiralty and Maritime Laws of the United States, such ownership limits her liability to the reasonable value of the vessel on the date and time of the occurrence and accordingly, pled exoneration. On the same date the respondent likewise filed a Separate Amended Answer wherein he too abandoned his previous affirmative defense of contributory negligence and alleged instead the affirmative defense of exoneration and limitation from liability available to the owner of a vessel under the Admiralty Law of the United States. He also alleged that he was the owner of the vessel involved in this accident and that his liability arising out of the incident mentioned in the plaintiff’s petition was therefore limited solely to the value of the vessel involved in said accident and could not exceed its value.

On August 13,1976, the attorneys for the plaintiff served notice upon the defendants’ attorney that he would take up his motion to strike portions of defendants’ Answer on September 7, 1976.

Thereafter, on August 23, 1976, both Ms. Richmond and respondent filed separate “Second Amended Answers.” In each they again raised the admiralty defense of exoneration and further alleged contributory negligence of the deceased as diminishing the award of any damage under the applicable laws of admiralty in the event either defendant should be found to be partially negligent.

Thereafter, on February 1, 1977, when the cause came on for trial, by stipulation of the parties, plaintiff’s cause of action as to defendant Julia Richmond was dismissed without prejudice. The cause proceeded to trial with the pleadings framed accordingly. At the conclusion of the evidence, the respondent tendered to the trial court a contributory negligence instruction drafted in the pattern of MAI 32.01, directing the jury to return a verdict for the respondent if it found that the decedent was negligent in that he either failed to keep a careful lookout, or failed to yield the right-of-way, or failed to display required running lights, and that such negligence of the decedent caused or directly contributed to cause any damage the appellant may have sustained, whether or not the respondent was negligent.

During an instruction conference the trial court indicated that it would submit this contributory negligence instruction to the jury but it was called to its attention that contributory negligence as a complete bar to appellant’s claim had not been pled and the trial court concurred in this argument of appellant’s counsel. The trial court then, over appellant’s objection, granted the respondent leave to amend his Second Amended Answer to incorporate contributory negligence as a bar to appellant’s claim and submitted the tendered instruction to the jury as Instruction No. 3.

Prior to the Moragne decision, supra, de-cisional law was to the effect that maritime law provided no recovery for wrongful death within a state’s territorial waters. The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886); The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959). However, Moragne overruled these prior decisions and held that an action lay under general maritime law for death caused by violation of maritime duties on navigable waters within a state as well as on the high seas. It did not, however, undertake a complete delineation of the legal system it germinated, and left many questions for later resolution by permitting them to sift through the lower courts in future litigation. 398 U.S. l.c. 408, 90 S.Ct. 1772. And although the court in Moragne permitted the widow in that case to assert a wrongful death claim for the death of her husband occurring aboard a vessel on navigable waters within the state of Florida, it specifically refused to decide which beneficiaries were entitled to recover for the common law wrongful death. With respect to the measure of damages in the newly recognized wrongful death action the court also made no definitive ruling, preferring instead to refer the courts before whom the question should arise to look to the Death on the High Seas Act and the numerous state wrongful death acts for a resolution of these questions.

The right of a widow to recover for the loss of her husband’s society and a rejection of the contention that recovery should be limited to pecuniary items such as the loss of support was not determined until 1974 when the court handed down the decision in Sea-Land Services v. Gaudet, 414 U.S. 573, 584[13, 14], 94 S.Ct. 806, 39 L.Ed.2d 9. It was during this period when the courts were engaged in resolving those issues untouched in Moragne that appellant filed her petition. For these reasons, together with those previously mentioned with reference to the Answers filed by the respondent wherein he raised defenses peculiar to admiralty law and unknown to the common law of this state, we conclude that the mere presence in plaintiff’s petition of an allegation that she brought this action as a surviving spouse of Charles L. Sanders, deceased “as provided by Section 537.070 and 537.090, R.S.Mo.1959 (sic), as amended” does not change her cause of action to a Missouri wrongful death proceeding and expose her to the defense of contributory negligence as a matter of Missouri substantive law. Before the Moragne decision, and we believe, as a direct consequence of the denial of a common law wrongful death action for the death of one caused by negligence on the navigable waters within state territorial boundaries, Admiralty Courts found it necessary to borrow a remedy from the states in whose territory such death occurred so as to afford some form of relief to the person or persons entitled to redress by reason of said death which was the direct result of a maritime tort. In those circumstances the cases held that the substantive law of the state wherein the death occurred and whose wrongful death statute was “borrowed” as the basis for recovery, was to be followed. When that tack was taken, a state court was bound to apply contributory negligence as a bar to recovery where that was the substantive law and the wrongful death action was brought in the courts of that state. However, if the plaintiff was fortunate and could bring the same cause of action in a state court where contributory negligence was not a bar but merely mitigated the damages which might be awarded plaintiff, the law of comparative negligence would be applicable. In the first instance, the apportionment of damages rule applied in federal maritime law would be avoided; in the latter, however, it would be applied.

We believe, however, that Moragne did make clear that maritime principles of negligence form the basis for recovery in a cause of action brought under the common law wrongful death cause of action it announced, and that a state court is required, therefore, to apply the federal maritime law in a cause for wrongful death suffered on the navigable waters within the territorial waters of the state in whose courts the remedy is pursued. 398 U.S. l.c. 378(1), 90 S.Ct. 1772.

We are also of the opinion that the decisions of the Supreme Court of the United States in Moragne, supra, and Sea-Land Services v. Gaudet, supra, have displaced state law remedies for wrongful death on navigable waters within the territorial boundaries of a state and have substituted in lieu thereof a maritime cause of action. Law v. Sea Drilling Corp., 523 F.2d 793, 798[3] (5th Cir. 1975). In commenting upon the effect of the Moragne decision the court in Law, said, l.c. 798:

“No longer does one need a state remedy. No longer does one need a state court, or The Admiralty as a Court, or DOHSA as a remedy. There is a federal maritime cause of action for death on navigable waters — any navigable waters — and it can be enforced in any court.”

Since Moragne we are of the opinion that those authorities which held that state substantive law with respect to contributory negligence must be followed in a wrongful death action brought in a state court for death on a navigable stream within the territory of that state are no longer to be followed.

One line that runs through Moragne is the principle that federal admiralty law should be system of law coextensive with and operating uniformly in the whole country. 398 U.S. l.c. 402[11], 90 S.Ct. 1772. In holding that Moragne has made it necessary to apply the federal maritime substantive law wherein contributory negligence is not a total bar to a claim for wrongful death occurring on a navigable stream within the territorial boundaries of a state we will give effect to the constitutionally based principle that federal admiralty law should be a system of law coextensive with and operating uniformly within the whole country. In reaching the conclusion we have, cognizance has been taken of admiralty as both a distinct jurisdiction and as a substantive body of law where commonly referred to as “maritime law.”

Admiralty jurisdiction, as the term connotes, is concerned with the power to administer the substantive maritime law. Admiralty jurisdiction is vested exclusively within the courts of the United States by Article III, Sec. 2 of the Constitution of the United States. In enacting Section 9 of the Judiciary Act of 1789, now 28 U.S.C. § 1333, Congress implemented the constitutional grant by saving to suitors in all cases all other remedies to which they were otherwise entitled. This clause of the Act is more commonly known as “The Saving to Suitors Clause,” and the meaning of this clause is crucial to the decision in this case because it determines in what court an action in admiralty is to be brought, and whether the action is one in admiralty or is a civil action.

The threshold question is whether the tort which is the basis for this cause of action is in fact a maritime tort and as such cognizable in admiralty. Admiralty jurisdiction over maritime torts historically was established on the basis of the locale of the tort; and if the tort occurred upon any navigable stream of the United States claims arising therefrom were within admiralty jurisdiction. The Plymouth, 70 U.S. (3 Wall.) 20, 36, 18 L.Ed. 125 (1865). However, since Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972) an additional factor has been added, and the wrong now must bear a significant relationship to traditional maritime activity. However, the operation of pleasure craft upon the navigable waters of the United States has been held to fall appropriately within the historical scope and design of the law of admiralty. Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319 (1953); Coryell v. Phipps, 317 U.S. 406, 63 S.Ct. 291, 87 L.Ed. 363 (1943); Just v. Chambers, 312 U.S. 383, 668, 61 S.Ct. 687, 85 L.Ed. 903 (1941); St. Hilaire Moye v. Henderson, 496 F.2d 973, 979[1] (8th Cir. 1974); Oppen v. Aetna Ins. Co., 485 F.2d 252 (9th Cir. 1973); Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973).

We believe it can no longer be questioned that a suitor with an in person-am claim arising out of a maritime tort may elect to sue in a state court or in a federal court on the law side on the authority of the saving to suitors clause of the Judiciary Act of 1789. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959); Pryor v. American President Lines, 520 F.2d 974, 977[2] (4th Cir. 1975); Still v. Dixon, 337 So.2d 1033, 1035[2] (Fla.App.1976); Smith v. Allstate Yacht Rentals Ltd., 293 A.2d 805, 807[2] (Del.Super.1972); Shannon v. City of Anchorage, 478 P.2d 815, 818[3] (Alaska 1970); Blevens v. Sfetku, 259 Cal.App.2d 527, 66 Cal.Rptr. 486, 489[5] (1968); 2 Am. Jur.2d Admiralty, § 106, p. 783. Appellant, as was her right, chose to pursue her Mo-ragne wrongful death claim in the state courts of Missouri. Substantive maritime law does not recognize contributory negligence as a complete bar to recovery where an in personam claim is brought for personal injuries or property damages sustained as a result of a maritime tort; rather, it employs the division of damages rule. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953); The Max Morris v. Curry, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed. 586 (1890); Landry v. Two R Drilling Company, 511 F.2d 138, 143, fn. 4 (5th Cir. 1975); 2 Am.Jur.2d Admiralty § 187, p. 833. We hold therefore, that because this was a Mo-ragne wrongful death action brought in the state court the substantive law with reference to damages is that of admiralty law and the trial court erred in instructing the jury on the common law defense of contributory negligence.

Because we have decided to reverse the judgment and remand the cause for a new trial on the grounds that contributory negligence was improperly submitted as a bar to appellant’s claim, we conclude that it is not necessary that we specifically rule on appellant’s remaining points because they too are directly affected by the substantive law to be applied with respect to decedent’s contributory negligence. These same questions should not arise in the course of the new trial.

Reversed and remanded to the trial court for a new trial in which the substantive maritime law shall apply.

WEIER, C. J., and GUNN, P. J., concur.

      . See: Annotation, Liability of Owner or Operator of Motorboat for Injury or Damage, 63 A.L.R.2d 343, 372, § 12; Annotation, Action for Death Caused by Maritime Tort within a State’s Territorial Waters, 71 A.L.R.2d 1296, 1319, § 15); Comment, Torts on Inland Waters — Admiralty Jurisdiction, 39 Mo.L.R. 23, 50, 1974.


author: ROBERT LEE CAMPBELL, Special Judge.

text:
    Richard COCHRAN and Connie Cochran, Plaintiffs-Appellants, v. Henry DeSHAZO and Margaret DeShazo, Defendants-Respondents.
    No. 10441.
    Missouri Court of Appeals, Southern District, Division One.
    March 26, 1979.

      Clyde A. Butts, R. Jack Garrett, Michael L. Shortridge, West Plains, for plaintiffs-appellants.
    Richard D. Moore, West Plains, for defendants-respondents.
   ROBERT LEE CAMPBELL, Special Judge.

Plaintiffs Richard and Connie Cochran filed suit seeking to enjoin defendants Henry and Margaret DeShazo from cutting timber on land allegedly described in a so-called “Option to Buy Additional Acres.” Later plaintiffs filed another cause of action against defendants seeking specific performance of the option and for damages. Defendants counterclaimed in the first lawsuit for damages from plaintiffs. The two cases were consolidated and, on trial to the court, it denied relief to the plaintiffs. A prior appeal was dismissed because the counterclaim remained pending. Cochran v. DeShazo, 538 S.W.2d 598 (Mo.App.1976). After remand, the court entered formal judgment denying relief to plaintiffs and ruling in favor of plaintiffs on defendants’ counterclaim. Plaintiffs again appeal. We affirm.

Defendants owned a tract of land in Howell County. Plaintiffs did not have sufficient funds to purchase the amount of land they desired. Plaintiffs purchased from defendants 23.54 acres of land and entered into a written agreement with defendants which contained the option in dispute. The option, prepared by plaintiffs, read as follows:

“Option to Buy Additional Acres
The seller agrees to allow the buyer to buy additional acreage to make a total of 40 acres unbroken. This additional acreage (approx. 16.5 acres) will be sold buyer for $180 per acre. The location of land included in the option has been verbally agreed upon by both buyer and seller. On the west it extends to the bottom of the first gully, thence north, thence east to an existing north-south fence. Said fence is approximately 500 feet east of the NW corner of the 23.54 acres already sold. * * *”

The description of the land included in the option cannot possibly be ascertained from reading the option. There is no provision as to where the land would start on the south, whether or not the west line would be parallel to the land already purchased by plaintiffs, or how far north the boundary would go before proceeding east to the existing north-south fence. It is abundantly clear that the option cannot be enforced by a court of equity unless plaintiffs’ evidence established to the court’s satisfaction the location of the land actually agreed upon by plaintiffs and defendants.

Plaintiff Richard Cochran testified that on the only occasion prior to executing the option that he discussed the land to be included in the option with defendant Henry DeShazo, they stood on the land already purchased by plaintiffs. They didn’t step off anything and didn’t have any specific measurements. The gully referred to in the so-called option does not run parallel to the western boundary of the plaintiffs’ land, but runs at an angle to the northwest. On the other side of the gully at its southern end is pasture while on the north it is brushy. Plaintiff Richard Cochran conceded that, after the option had been prepared, a dispute arose between the parties as to whether any pasture land was to be included in the land to be purchased by plaintiffs. In addition, plaintiff Richard Cochran conceded that the land being discussed might not come out to be 16½ acres but that would be cured by having the additional acreage “come out of the scrub brush.”

At the close of plaintiffs’ evidence the court declined to grant relief to plaintiffs for the reason that the so-called option was too indefinite, vague and uncertain to be enforced by a court of equity.

Plaintiffs rely upon Herzog v. Ross, 355 Mo. 406, 196 S.W.2d 268 (1946) and Smith v. Wilson, 160 Mo. 657, 61 S.W. 597 (1901), for the rule that realty need not be fully and accurately described as long as the writing affords means whereby identification may be made perfect and certain by parol evidence. In Herzog the description was “Property known as and numbered as 6850 Plateau, * * The court quoted the above rule from Black v. Crowther, 74 Mo.App. 480 (1898) and held that, the description, “6850 Plateau” was sufficient because the realty could be identified by parol evidence.

We also agree with the above rule of law. However, in this case, it is totally impossible to determine the land covered from the wording of the option or plaintiffs’ evidence. Although plaintiffs furnished the trial court with a sketch of an “L” shaped tract of land adjacent to plaintiffs’ land which could be the land covered by the option, plaintiff Richard Cochran’s testimony was too vague, indefinite and uncertain to permit anyone to conclude that the land shown in the skétch had been agreed upon by plaintiffs and defendants. The trial court correctly declined to grant relief to plaintiffs. The judgment is affirmed.

FLANIGAN, P. J., TITUS, J., and MOORE and KENNEDY, Special Judges, concur.


author: MAUS, Judge.

text:
    John J. WILLIAMS and Pauline L. Williams, Plaintiffs-Respondents, v. NORTH RIVER INSURANCE COMPANY, Defendant-Appellant.
    No. 10644.
    Missouri Court of Appeals, Southern District, Division Two.
    March 28, 1979.

      Walter E. Williams, William C. Myers, Jr., Webb City, for plaintiffs-respondents.
    L. R. Buehner, Buehner & Buehner, Joplin, for defendant-appellant.
   MAUS, Judge.

This is an action on a policy of fire insurance to recover for the loss of a dwelling. The insurer admitted the policy was in force and total loss of the dwelling by fire. It defended upon allegations of (1) the breach of policy conditions and (2) that plaintiffs burned, or procured the burning, of their own property.

The insured dwelling was a rental residence owned by the plaintiffs, who lived across the street. The tenants left the morning of December 30, 1972, for a proposed three day visit in Texas. At about 10:30 p. m. that day, their next door neighbor (who also rented from plaintiffs) saw flames in the kitchen area of the insured dwelling. The fire department was called. The plaintiffs were aroused and came to the scene.

The fire was apparently extinguished while confined primarily to the kitchen area. This is remarkable because extensive preparations had been made to burn the dwelling. A candle in a styrofoam base was in a closet. Paper towel streamers, soaked in kerosene, extended from the candle throughout much of the dwelling. Kerosene had been poured on some furniture. The candle had not been lighted.

The fire department personnel and police officers (who were investigating because of the evidence of arson) left about midnight. Thereafter, John J. Williams (who ironically was a city fireman) returned one or two times to check on the premises. He intended to go again at 3:00 a. m., but was awakened at about 2:00 a. m. as his wife had been aroused by a second fire at the dwelling. The second fire resulted in a total loss.

In view of the limited issues presented for consideration, an extensive review of the evidence in this well tried case is not necessary. Suffice it to say the defendant insurer made a submissible circumstantial case that plaintiffs burned, or procured the burning of their dwelling. However, the evidence also developed suggestive circumstances pointing to the tenants who were having financial problems, experiencing marital discord and had a few days before the fire insured their household effects for $10,000.00. There was also some evidence of threats toward the husband tenant arising from his job as a door man at a bar. Evidently as a result of the divergent circumstances, the jury concluded defendant had not met its burden of proof and returned a verdict for the plaintiffs. Defendant appeals and seeks reversal on two points (1) a breach of a policy requirement and (2) undue restriction of argument.

One of the many “Requirements in case loss occurs” provided in the policy was the following common provision: “The insured, as often as may be reasonably required, shall exhibit to any person designated by this Company all that remains of any property herein described, and submit to examinations under oath by any person named by this Company, and subscribe the same; . .” (Our emphasis)

Defendant insurer, through counsel, requested that the plaintiffs appear for examination. They did appear and each, in turn, was placed under oath and extensively examined in the presence of a stenographic reporter who administered the oaths. Some delay was encountered in the preparation of the transcripts of the examinations. Some difficulties were encountered in respect to the plaintiffs signing the transcript of their respective statement. The plaintiffs did, however, sign their respective transcript at the end thereof and returned them to defendant’s counsel. However, these signatures were not “notarized”.

The defendant has consistently, through correspondence, its answer, its after trial motion and brief in this court, maintained that plaintiffs did not comply with this policy requirement. Defendant insists the signatures must have been under oath, as in an affidavit. The trial court, in pretrial and after trial orders, determined plaintiffs had been examined under oath and did sign the transcripts at the end and that was all the policy required. We agree.

There can be no doubt but what plaintiffs did submit to examination under oath. What was required by “and subscribe the same”? We believe the meaning to be such that we are not called on to resort to rules of construction. “Subscribe” is defined: “To write (as one’s name) underneath.” Webster’s Third New International Dictionary. Wehmeier v. State Farm Mut. Auto. Ins. Co., 556 S.W.2d 739 (Mo.App.1977). This is exactly what was done by the plaintiffs.

If the same was necessary, this interpretation can be supported by rules of construction and authorities. The prime rule is that uncertain language in an insurance policy is to be construed against the company. Boling v. State Farm Mutual Automobile Ins. Co., 466 S.W.2d 696 (Mo.1971). A further guide is that where a term is used in one phrase of a policy, its absence in another phrase is significant. Otto v. Young, 227 Mo. 193, 127 S.W. 9 (1910); Maupin v. Southern Surety Co., 205 Mo. App. 81, 220 S.W. 20 (1928); 17 Am.Jur.2d, Contracts, § 247, p. 637. In this connection, defendant’s policy in regard to proof of loss says it shall be “signed and sworn to.” (Our emphasis) No such requirement is made in connection with the examination.

The authorities do not regard the signature, as distinguished from the examination under oath, as a critical matter. “When Mrs. Barbour appeared before the notary public and submitted to an examination under oath, there was a substantial compliance with this provision of the policy. The insurance company has obtained the information which it was designed to secure. The signing of the written result of the examination was a purely incidental matter.” Barbour v. St. Paul Fire & Marine Ins. Co., 101 Wash. 46, 171 P. 1030 (1918).

The requirement has been held to be satisfied by a signing after suit was filed, Agricultural Ins. Co. of Watertown, N. Y. v. Iglehart, 386 P.2d 145 (Okl.1963); Barbour v. St. Paul Fire & Marine Ins. Co., supra; or by an offer to sign contained in a petition, Potomac Fire Ins. Co. v. Turner, 67 S.W.2d 1080 (Tex.Civ.App.1934).

In closing argument counsel for defendant stated that lawyers work on a contingent fee basis (an objection to that remark being sustained) and then continued with an argument to the effect that once a lawyer was hired, “how do you turn it off?” (an objection was overruled) and counsel continued to the effect that a dismissal of the lawsuit would be an admission. The only portion of this line of argument to which an objection was sustained was the statement that lawyers represent people on a contingent fee basis. This was improper argument because it is improper to impugn the motive of counsel and it was beyond the scope of the evidence. Davis v. City of Independence, 404 S.W.2d 718 (Mo. banc 1966); Cook v. Cox, 478 S.W.2d 678 (Mo.1972); Speicher v. Dunn, 530 S.W.2d 45 (Mo.App.1975). The trial court did not err in sustaining an objection to this portion of the argument.

Counsel for defendant also argued that the action was being defended “because every insurance company has an obligation to its stockholders and policyholders to decline bum claims and the reason they have that obligation is because the policyholder’s premiums are determined by the claims that they pay.” An objection was sustained and counsel instructed not to pursue that argument any further.

It is generally held improper for defense counsel to make an argument appealing to self-interests of the jurors. Annot., 33 A.L. R.2d 442. In an action in which back injuries were alleged, statements of defense counsel that it was the “type of thing that places a burden upon us all” and that “causes the increase in the high cost of living” were improper, Lukich v. Angeli, 31 Ill.App.2d 20, 175 N.E.2d 796 (1961). The statement of the railroad’s attorney in closing argument relative to the effect that a verdict against the railroad would have upon business and upon jurors as individuals and as owners of businesses, as farmers, and as owners of property, was error requiring a new trial, Clark v. Grand Trunk Western Railroad Company, 367 Mich. 396, 116 N.W.2d 914 (1962). It has also been held to be improper to argue against a plaintiff’s verdict because: it would result in numerous suits against the city, Jones v. Kansas City, Missouri, 76 S.W.2d 340 (Mo.1934); that a judgment would be paid from tax funds, Massoni v. State Highway Commission, 214 Kan. 844, 522 P.2d 973 (1974); that the judgment would be paid by the taxpayers of a city, even though the city was in a county other than that in which the case was being tried, Huggins v. City of Hannibal, 280 S.W. 74 (Mo.App.1926); that the taxpayers would pay an award to a condemnee, Township of Saginaw v. Stanulis, 68 Mich.App. 314, 242 N.W.2d 769 (1976).

Argument that an award to a claimant would increase her employer’s insurance premiums and thereby prices charged by the employer has been held to be prejudicial and not curable. Waddell v. Charter Oak Fire Insurance Company, 473 S.W.2d 660 (Tex.Civ.App.1971). A similar argument was also condemned in Finney v. G. C. Murphy Company, 400 Pa. 46, 161 A.2d 385 (1960). We find no case in Missouri directly deciding the point. However, in a case involving the propriety of a retaliatory argument, it was said, “It may be conceded that argument by plaintiff’s counsel on the subject of increasing insurance premium rates would have been improper and objectionable in the absence of any remark to provoke it.” Hartford Accident and Indemnity Company v. List, 424 S.W.2d 761, 766 (Mo.App.1968). The control of argument is largely within the discretion of the trial court. St. Louis County v. Szombathy, 497 S.W.2d 144 (Mo.1973). Trial court did not err in sustaining the objection.

The judgment is affirmed.

BILLINGS, P. J., and HOGAN, J., concur.

      . “In the absence of a policy definition, any doubt or ambiguity resulting over the meaning of a policy provision must be resolved in favor of the insured and against the insurer.” Cotton Belt Ins. Co., Inc. v. Hauck, 424 F.Supp. 570, 575 (E.D.Mo.1976).