author: GUNN, Judge.

text:
    Aileen Bounds DICK, Plaintiff-Respondent, v. SCOTT CONSTRUCTION COMPANY, Defendant-Appellant.
    No. 36842.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 6, 1976.

      Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, Samuel Richeson, Hillsboro, for defendant-appellant.
    Bloodworth & Bloodworth, Wm. Howard Bloodworth, Poplar Bluff, for plaintiff-respondent.
   GUNN, Judge.

Plaintiff-respondent ran into the rear end of defendant-appellant’s road grader and suffered severe injuries for which she has sought recompense. The first trial of this case resulted in a judgment for $35,000 in favor of plaintiff and against the defendant. The defendant appealed the first judgment to the Supreme Court and was successful in obtaining a reversal and remand for new trial of the case on the basis of an improper submission to the jury. Bounds v. Scott Construction Co., 498 S.W.2d 765 (Mo.1973). We are now on the appeal of the second trial in which the plaintiff was favored with a jury verdict of $60,050. Trusting that it will fare better on a third try, defendant has once more appealed, alleging as points of error in the second trial that: 1) plaintiff’s verdict director was erroneous; 2) that the trial court failed to find plaintiff contributorily negligent as a matter of law; 3) that defendant was protected from liability by the doctrine of sovereign immunity; 4) that the defendant was not negligent as a matter of law; 5) that certain evidence as to plaintiff’s injuries was outside the scope of the pleadings; 6) that portions of the closing argument of plaintiff’s counsel were improper. Regrettably, we find prejudicial error in plaintiff’s verdict directing instruction and must once more remand this somewhat jaded litigation for further jousting by the parties in the courtroom arena.

The accident involving plaintiff’s auto and defendant’s road grader occurred on a newly constructed portion of Highway 21, one mile south of Ellington. On the day of the accident, the paving of the highway had been completed, and the defendant construction company under a contract with the State Highway Commission was building and shaping the shoulder by the use of a road grader within the northbound lane of traffic. The plaintiff testified that she was driving north in the northbound lane when she first observed defendant’s road grader 300 feet in front of her in the northbound lane. She stated that at the time she was moving between 50-55 miles per hour and that the road grader was backing up. Plaintiff related that she applied her brakes and turned her steering wheel to the left, but because of dirt and pea gravel on the road’s surface her auto skidded 137 feet directly into the back of the road grader. Plaintiff also testified that approximately two miles south of the scene of the accident she had noticed a diamond shaped caution sign, but she had seen no other warning signs or flagmen leading to the point of impact. She had taken the same route the previous day and had seen no construction vehicles on the highway.

The operator of defendant’s road grader testified that he was in the process of backing up in the northbound lane to make a final pass over the shoulder when he first noticed plaintiff’s auto 740 feet away. Upon seeing plaintiff, the operator looked to see if any southbound traffic was approaching, and seeing that the southbound lane was clear, he waved to plaintiff to pass. The operator estimated plaintiff’s speed at 70-80 miles per hour. Witnesses were called on behalf of defendant to testify that there was a fine array of signs located along the highway warning approaching motorists that road construction was in progress. The contradictions in testimony are for the jury to resolve. Dintelman v. McHalffey, 435 S.W.2d 633 (Mo.1968); Lamb v. Heiligers, 532 S.W.2d 820 (Mo.App.1975).

Plaintiff submitted her case on the theory that defendant negligently operated its road grader in a lane reserved for moving traffic. Plaintiff’s verdict directing instruction which is the subject of defendant’s first assault is as follows:

“Your verdict must be for plaintiff on plaintiff’s claim for damages if you believe:
First, defendant operated its motor grader in a lane reserved for moving traffic, and
Second, defendant was thereby negligent, and
Third, as a direct result of such negligence the plaintiff sustained damage, unless you believe plaintiff is not entitled to recover by reason of Instruction No. 4.” (emphasis added).

The foregoing instruction modified MAI 17.20 by substituting the word “operated” for the word “stopped” in paragraph First. The defendant contends that the modification is prejudicially erroneous, in that it omits a factual basis upon which the plaintiff can recover and is misleading and confusing. We are constrained to agree with defendant in this regard.

Plaintiff’s verdict director is erroneous, for it fails to hypothesize a negligent act on the part of the defendant. The jury is instructed to hold defendant liable if they find that the road grader was being operated in a lane reserved for moving traffic and that defendant was thereby negligent. Yet, plaintiff concedes that the presence of the road grader in the northbound lane was not negligence per se, as it necessarily had to be in the northbound lane to perform the road shoulder construction work defendant was required to do. Plaintiff submits that it was not the fact that the road grader was in a lane reserved for moving traffic (the northbound lane in this case) that created the negligence, but that it was the presence of the road grader in the northbound lane without giving adequate warning to motorists — the plaintiff, in particular — of the presence of the grader. Also, plaintiff suggests that accumulation of dirt and gravel on the roadway caused by defendant’s operations contributed to its negligence. Thus, under plaintiff’s own theory of recovery, the mere presence or operation of the road grader in the northbound lane was not by itself negligence, but something more, such as the failure to provide adequate warning of the presence of the grader or that pea gravel was permitted to accumulate on the road, was required to establish defendant’s negligence. But plaintiff’s verdict director speaks only of the fact that defendant “operated” its road grader in a lane reserved for moving traffic which plaintiff admits is not, without more, negligence. Therefore, without requiring the jury to resort to substantial conjecture, paragraph First fails to hypothesize any facts which constitute negligence under the circumstances of this case. Consequently, the plaintiff’s verdict director failed to submit to the jury a theory upon which recovery could be based. The modification of MAI 17.20 by replacing the word “stopped,” which within the instruction constitutes a specific act of negligence, with the word “operated,” which under the facts of this case does not constitute an act of negligence, was error.

Plaintiff contends that the term “operated” encompasses more than the fact that the road grader was located and working in the northbound lane; that a fair reading of the word “operated” includes the condition that there was inadequate warning and an improper accumulation of pea gravel in the northbound lane. We disagree. Without any suggestions as to why defendant’s operation of the road grader was somehow improper the jury was improperly given a roving commission to speculate as to how the act of operating the road grader was negligent. Moore v. Quality Dairy Co., 425 S.W.2d 261 (Mo.App.1968). If, as plaintiff asserts, the defendant’s act of negligence in operating the road grader was by reason of failure to warn or improper maintenance of the road surface, the jury should have been so instructed.

We also find plaintiff’s verdict director to be misleading and obfuscatory, and “[ijnstructions may not be confusing, misleading, inadequate nor prejudicially erroneous. . . . (cite omitted) The language of the instruction should be so plain that no doubt can arise as to its meaning. The spirit of jury instructions is to use ‘simple, direct, concise and unambiguous words and phrases that do not require further definitions.’ ” Woodford v. Illinois Central Gulf R.R. Co., 518 S.W.2d 712, 716 (Mo.App.1974). See also Rule 70.01(e). Plaintiff’s verdict director is manifestly dissonant with the foregoing rubric. The term “operated” as used in the instruction has more than one meaning. It can be construed to refer solely to the fact that the road grader was operating in the northbound lane, that is, the jury could find for plaintiff merely because the defendant’s road grader was performing construction work on the highway. Yet, plaintiff acknowledges that such fact does not form a sufficient basis for a liability, and under such an instruction no act of negligence is hypothesized. The other alternative available to the jury would be to improperly speculate as to what conditions or circumstances made the road grader’s operations somehow negligent. The fact that an accident occurred does not establish negligence. Powell v. Watson, 526 S.W.2d 318 (Mo.App.1975). Neither, as plaintiff admits, did the sole fact of defendant’s operating the road grader on the highway constitute negligence. We must therefore reverse and remand the case for a new trial.

We now dispose of the other points of alleged error raised by the defendant. Since we have held that the plaintiff’s verdict directing instruction was improper we need not reach the defendant’s second point relating to that instruction — that the theory submitted in the instruction was not within the plaintiff’s pleadings.

The defendant also contends that the plaintiff was contributorily negligent as a matter of law because she failed to keep a lookout, drove at an excessive speed and failed to take evasive action. This exact contention was raised in the first appeal of this case to the Missouri Supreme Court. Based on the same material facts as present in the record before us, the Supreme Court held that the plaintiff was not contributorily negligent as a matter of law under any of the theories presented by the defendant. The question of plaintiff’s contributory negligence was determined to be a question for jury resolution. Bounds v. Scott Construction Co., 498 S.W.2d 765, 768 (Mo.1973).

An additional point raised by the defendant on this appeal concerns the trial court’s refusal to submit to the jury a proposed instruction offered by the defendant that would have provided the defendant with the protection of governmental immunity if the jury were to find that the defendant performed the construction work on the shoulder in compliance with the Missouri State Highway Commission’s plans and specifications. This point was specifically dealt with and denied by the Supreme Court in the defendant’s first appeal, Bounds v. Scott Construction Co., supra at 768, and we are bound by that ruling. See also Best v. Fred Weber Construction Co., 525 S.W.2d 102 (Mo.App.1975), holding that a road contractor may not hide behind a contract with a public authority to escape liability for tortious conduct.

The defendant asserts that the trial court erred in failing to grant the defendant’s motion for a directed verdict.

“In reviewing the action of a trial court in ruling on defendant’s motion for a directed verdict . . the reviewing court must determine whether plaintiff made a submissible case, and in so doing, the plaintiff is entitled to the most favorable view of all the evidence and must be given the benefit of all favorable inferences to be drawn therefrom.” Boyle v. Colonial Life Ins. Co., 525 S.W.2d 811, 815 (Mo.App.1975).

Viewing the evidence as commanded by the foregoing maxim, we conclude that a sub-missible case was made. From the evidence and the reasonable inferences drawn therefrom, the jury could have found that the defendant failed to adequately warn a northbound motorist that a road grader was working in that lane. Testimony of the plaintiff and her witnesses was to the effect that no flagmen were present and that whatever warning signs were present were not sufficient to alert a motorist to the fact that the northbound lane would be blocked. Furthermore, the jury could have found that there was between one quarter and four inches of dirt and pea gravel left on the road by the defendant immediately south of the scene of the accident. Such facts could be sufficient to demonstrate the defendant’s negligence, and the trial court properly denied the defendant’s motion for a directed verdict. See Morris v. Israel Brothers, Inc., 510 S.W.2d 437 (Mo.1974); Best v. Fred Weber Construction Co., supra.

The defendant asserts that since plaintiff’s petition did not specifically allege particular injuries the trial court erred in overruling motions to strike evidence relating to alleged brain damage, double and blurry vision, headaches and a shortening of a leg. The relevant portion of plaintiff’s petition states:

. . as a direct and proximate result of the carelessness and negligence of the defendant as aforesaid, the plaintiff sustained the following injuries, to wit: Plaintiff’s head, . . . body, legs, ankles . . were bruised, contused, wrenched, torn, misplaced, cut, lacerated, broken, wounded, sprained, diseased, scarred and disfigured, and the bones, muscles, ligaments, tendons and nerves in plaintiff’s head, . . legs, ankles were severely shocked, misplaced, torn loose, bruised, mangled, diseased, scarred and disfigured and rendered useless. Plaintiff states that she suffered a concussion of the brain and the function of this plaintiff’s entire nervous system was shocked and her head, . . . limbs . . . and the . nerves, tendons and ligaments thereof were bruised, contused and impaired . . .

The trial court correctly overruled defendant’s objection to plaintiff’s evidence of impaired vision and hearing, headaches and shortened leg and found that such injuries were a consequence of the accident as pleaded. Although Rule 55.19 requires items of special damage to be specifically stated in the petition, the injuries alleged in the petition were sufficiently stated with enough breadth and detail to embrace the specific injuries introduced into evidence. The allegations relating to injuries to plaintiff’s head, including the concussion, were sufficient to encompass evidence of dizziness, blurred and double vision, headaches and defective hearing. The allegations as to injuries as to plaintiffs leg and limbs were sufficient to cover the shortened leg. Erbes v. Union Electric Co., 353 S.W.2d 659 (Mo.1962); Alfultis v. Bi State Development Agency, 439 S.W.2d 206 (Mo.App.1969); Fleddermann v. St. Louis Transit Co., 134 Mo.App. 199, 113 S.W. 1143 (1908). Our holding on this point is further buttressed by the fact that defendant made no motion to make the allegations of injury more definite and certain — a significant factor. Condos v. Associated Transports, Inc., 453 S.W.2d 682 (Mo.App.1970).

Finally, defendant asserts that the trial court erred in allowing plaintiff’s counsel to comment in closing argument on the failure of a State trooper called as a defense witness to testify regarding the existence of warning signs, as the trooper was equally available to plaintiff. Since this point is not likely to reoccur on the retrial of the case we need make no finding as to whether such comment was error vel non.

Due to the prejudicial error of submitting plaintiff’s verdict directing instruction we reverse the judgment and remand for new trial.

SIMEONE, P. J., and RENDLEN, J., concur.

      . Plaintiff has married since the first trial, hence the change in the style of the case.

      . The testimony of the parties was in sharp conflict as to the amount of dirt and gravel on the road. The plaintiff presented evidence that there was between one quarter inch and four inches of dirt and gravel on the northbound lane to the point of impact. A State trooper testified that there was dirt and gravel one quarter inch thick, and defendant’s construction superintendent testified that there was only a little dust and gravel on the road. We leave it to the jury to resolve such conflicts.


source: Caselaw Access Project

author: SIMEONE, Judge.

license: Public Domain

text:
    GENERAL AMERICAN LIFE INSURANCE CO., a corporation, Plaintiff, v. Vera Jean ROGERS, Defendant-Appellant, Vanita M. Rogers et al., Defendants-Respondents, and Bernice Swaim, Defendant.
    No. 37258.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 6, 1976.

      James F. Hespen, St. Louis, for appellant.
    Dale L. Rollings, St. Charles, for respondent.
    Joel D. Monson, St. Louis, for plaintiff.
    James E. Hawk, Jr., St. Louis, for defendant Bernice Swaim.
   SIMEONE, Judge.

This is an appeal by defendant-appellant, Vera Jean Rogers, the wife of deceased, Eugene Leroy Rogers, from a summary judgment entered by the circuit court of the City of St. Louis which denied her any rights in the proceeds of a group life insurance policy issued by General American Life Insurance Company on the life of the decedent. For reasons hereinafter stated, we affirm the judgment.

Prior to May 23,1972, Eugene Leroy Rogers and Vanita M. Rogers were husband and wife. Four children were born of the marriage — Terry, Vickie, Bruce and Holly. Mr. Rogers was employed by Union Electric Company of Missouri and was insured under a group insurance policy issued by General American to Union Electric. He became insured under the policy on September 17, 1953. Over the years the policy increased in value.

On May 23, 1972, Eugene and Vanita were divorced by decree of the circuit court of Warren County. On the same date, they executed a “Stipulation and Property Settlement Agreement,” which was incorporated by reference into the decree. On July 27, 1974, Mr. Rogers was killed accidentally and as a result accidental death benefits became due and owing to his proper beneficiary. The proceeds of the policy amounted to $30,000 death benefits and $30,000 double indemnity, for a total of $60,000.

On November 18,1974, General American filed its petition in interpleader pursuant to Rule 52.07 and alleged that conflicting claims had been made for the proceeds of the policy by (1) appellant, Vera Jean Rogers, the wife of decedent at the time of his death, (2) by a trustee for his children, Bernice Swaim, under a change of beneficiary form, and (3) by his four children and his former wife, Vanita, on behalf of the minor children.

All these parties were made defendants. The petition prayed that they be required to interplead and that General American be discharged from liability with costs.

The conflicting claims to the proceeds of the policy arise because of the legal effect of the stipulation and property settlement agreement entered into by Eugene and Va-nita at the time of their “divorce.” In the document, Mr. Rogers agreed in paragraph 8: (1) to cause the Union Electric Group policy in the amount of $4,500.00 “to be continued in full force and effect”; (2) to continue to permit deductions from his pay to be made in order to retain the policy in full force and effect; (3) “to designate as beneficiaries of the aforementioned group life insurance [policy] the children of the marriage of the parties, equally”; (4) in the event he remarries and has children, he may “be entitled to name and to designate said subsequent born children also as beneficiaries on the afore-described life insurance policies, provided that all of his children, whether born of this marriage or hereafter, shall remain on an equal and irrevocable basis”; (5) to designate the “present children of his marriage as irrevocable beneficiaries”; and (6) “to perform whatever acts are necessary to effect the irrevocable beneficiary status of his children. . . ”

On June 9, 1972, Mr. Rogers executed a change of beneficiary form with General American naming as his beneficiaries his four children, Terry, Vickie, Bruce and Holly Renee, “equally if living, or to the survivors) among them.” And he named his sister, Bernice Swaim, as trustee to receive any amount due “a beneficiary who is a minor when amount becomes payable. . . ."

Then, on January 25, 1973, he executed another change of beneficiary form which added his second wife, Vera Jean, as an additional beneficiary.

After all pleadings were closed, and interrogatories were filed and answered, each of the conflicting claimants — Vera, Bernice Swaim, Vanita and the four children — filed a motion for summary judgment together with supporting affidavits. Rule 74.04. The four children prayed the court to enter summary judgment in their favor and requested that they each receive a one-fourth share of the proceeds of the policy and that the shares payable to the minor children, Bruce, Holly and Vickie, be paid to their natural mother, Vanita. Vera sought summary judgment and prayed that the court distribute from the proceeds of the policy a one-fifth interest to her and to “Bernice Swain [sic], the one-fifth interests due the” children.

Bernice Swaim, as trustee, prayed that the interests due the minor children (Bruce, Vickie and Holly) be distributed to her as trustee.

After discharging General American from any further liability in the cause, the motions were argued and submitted. The trial court held that (1) the cause was a proper one for summary judgment, (2) the four children, as a result of the stipulation and settlement, acquired a property interest in the proceeds of the policy which could not be divested by subsequent attempts by Mr. Rogers to change the beneficiaries contrary to the stipulation, (3) Mr. Rogers had no power to add his second wife, Vera Jean, as a beneficiary, and (4) the contention of Vera that Mr. Rogers by the stipulation attempted to guarantee to his children a total of $4,500.00 only, was without merit because the “use of the figures totaling $4,500.00 in paragraph 8 of the Agreement was only an attempt to aid in the designation or description of the policy and not an attempt to limit the proceeds.”

The court therefore concluded that the children were the proper beneficiaries and ruled that Vanita was the proper person to receive the proceeds due the minor children, subject to the jurisdiction, instruction and guidance of the probate court. The court therefore overruled the motions for summary judgment of Vera and Bernice Swaim and sustained the motion of Vanita and the four children. The court ordered that one-fourth of the funds be awarded the adult child, Terry, the other three children be each paid a one-fourth share and that their mother establish a guardianship of the estates of the minor children and upon exhibition of letters, the three shares for the minor children be paid to her as guardian.

Vera Jean Rogers appealed. On this appeal she contends that the court erred (1) in finding that Mr. Rogers could not add her as a beneficiary thus entitling her to one-fifth of the proceeds of the policy, and (2) in not finding that the intent of the parties to the divorce stipulation was to limit the proceeds of the policy “so that the insured was to set aside for his children” only $4,500.00 rather than the total amount of the proceeds. She argues that paragraph 8 of the stipulation shows that Mr. Rogers had entered into a contract for only a portion of the “$30,000.00 . . . Group Policy” and “[a]s to the remaining proceeds [$30,000 less $4,500?], the insured could add additional beneficiaries as long as he did not encroach on the . . $4,500.00 . of the proceeds of such policy. . . . ”

She bases her contention on the principle that where a policy of life insurance is issued reserving to the insured the right to change the beneficiary, the issuance of the policy does not confer a vested right in the beneficiary, and the insured has the right to change a beneficiary without the knowledge or consent of the original beneficiary. Postal Life and Casualty-Insurance Co. v. Tillman, 287 S.W.2d 121, 125-126 (Mo.App.1956). She also argues that the thrust of the settlement agreement was to limit the proceeds to the children in the amount of $4,500, since paragraph 8 is clear and unambiguous, and the other provisions of the stipulation show that Mr. Rogers was designating only $4,500 for his children, and hence he had a right to include his wife, Vera, as an additional beneficiary, thus reducing the childrens’ shares to one-fifth, rather than one-fourth.

We disagree with the contentions raised by appellant and affirm the summary judgment entered by the trial court.

This is a proper case for summary judgment. Rule 74.04(e) provides that if the “pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law,” summary judgment shall be rendered. See also Hurwitz v. Kohm, 516 S.W.2d 33 (Mo.App.1974). The material facts were not substantially in dispute; the question was one of law to be determined by the trial court.

As to appellant’s first point, that the court erred in finding that Mr. Rogers could not add the appellant as an additional beneficiary, she claims that under the law the insured has the right to change a beneficiary in this case as long as Mr. Rogers did not encroach on the $4,500 given to the children. But this principle must be reconciled with the law in Missouri and elsewhere that where beneficiaries have a vested equitable interest or a property right in the proceeds of the policy by contract of the parties, that interest may not be defeated by an effort to change the beneficiaries without their consent. The law in Missouri and elsewhere is clear that a contract obligating the insured to maintain a present policy in full force and effect for the benefit of certain beneficiaries named pursuant to an agreement is valid and that the beneficiaries so named acquire a right in the proceeds of the policy which will be protected against subsequently named beneficiaries who have no superior right. Prudential Insurance Co. of America v. Gibson, 421 S.W.2d 26, 33-34 (Mo.App.1967), and cases cited therein; Perry v. Perry, 484 S.W.2d 257 (Mo.1972).

Considering the whole of paragraph 8 of the stipulation and agreement entered into by Mr. Rogers in 1972, we are compelled to conclude that the agreement meant that he would continue his group policy in full force and effect for the benefit of his children of the marriage to Vanita and any subsequent children born if he remarried. The legal position of the children is that they acquired a vested interest or a property right in the res — the proceeds of the policy — by the stipulation and agreement. Whatever theory is utilized by the authorities, it is clear that the children were by the stipulation and agreement vested with an interest in the group policy which may not be defeated by Mr. Rogers’ effort to add Vera as a beneficiary in violation of the terms of the stipulation. Prudential Insurance Co. of America v. Gibson, supra, 421 S.W.2d at 34; Perry v. Perry, supra, 484 S.W.2d at 258. The stipulation provided that Mr. Rogers agreed to continue the policy in full force and effect and to designate as beneficiaries “the children of the marriage of the parties, equally.” It is clear to us that, by the stipulation, Mr. Rogers intended to maintain the group policy for the benefit of his children in equal shares. He expressly stated that “all of his children, whether born of this marriage or hereafter, shall remain on an equal and irrevocable basis.”

We agree with the trial court that “[t]he insured [Mr. Rogers] makes no mention of any reservations of the balance and the document when viewed as a whole evidences an attempt to designate the whole policy for the benefit of his minor children rather than limit any one part of it for that purpose. . . .”

Under the provisions of paragraph 8 of the agreement and under the circumstances and under the authorities, we hold that the four children of Mr. Rogers acquired an equal interest in the proceeds of the policy which could not be divested by his subsequent attempt to add the appellant as a beneficiary.

The second contention of appellant — that the court erred in failing to find that the intent of the parties in the stipulation and agreement was to set aside $4,500.00 for the children and not the total amount of the policy benefits — is without merit. Appellant argues that only $4,500 of the total was set aside for the children by the agreement and presumably argues that the balance is to be distributed to the appellant in equal shares with the four children.

The primary rule of the construction of the agreement is to ascertain the intention of the parties and give effect to that contention. J. E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo. banc 1973). In ascertaining this intention, resort may be had to the circumstances surrounding the formulation and execution of the contract, the relationship of the parties, the purpose to be served, and the course of negotiations, if any. Prudential Insurance Co. of America v. Gibson, supra, 421 S.W.2d at 31. Appellant contends that the stipulation is clear and unambiguous in that it set aside only $4,500 to the children. But we conclude as did the trial court that paragraph 8 set aside the total proceeds of the policy for the benefit of Mr. Rogers’ four children.

Here the deceased — husband and father — entered into an agreement with his wife as a part of the divorce proceeding. By the stipulation he agreed to continue the policy “in the amount” of $4,500 in full force and effect; he agreed to designate his children as the beneficiaries of the “aforementioned group life insurance policies he agreed that all his children would remain on an equal and irrevocable basis and agreed to designate his present children as “irrevocable beneficiaries under the aforesaid policies.” He agreed to continue to permit deductions from his pay “in order to retain said policies in full force and effect”; he agreed to designate his children as equal beneficiaries. All of this language refutes the appellant’s contention that Mr. Rogers intended to set aside only $4,500.00 to his children. Furthermore, the logic of the situation is contrary to appellant’s contention. Surely Mr. Rogers as a father would not set aside merely $4,500 for all his children whether born of the marriage to Vanita or born after remarriage. The trial court was clearly correct when it concluded:

. that the use of the figures totaling $4,500.00 in paragraph 8 of the Agreement was only an attempt to aid in the designation or description of the policy and not an attempt to limit the proceeds. The insured makes no mention of any reservations of the balance and the document when viewed as a whole evidences an attempt to designate the whole policy for the benefit of his minor children rather than limit any one part of it for that purpose. . .

The words in the agreement “in the amount” of $4,500 are, we believe, to be words of “designation” rather than “limitation.” The policy was issued in 1953; there were multiple increases thereafter. Under all these circumstances, we conclude that the stipulation and agreement evinced an intention not to limit the proceeds to $4,500 but to designate the total proceeds of the policy for the benefit of his children. The fact that other provisions of the stipulation and agreement used clearer words does not change that intention indicated in paragraph 8.

We have read the entire transcript, the briefs and all the authorities relied upon by the parties and conclude that the trial court reached a logical, legal and just result.

The judgment is affirmed.

KELLY and GUNN, JJ., concur.

      . Paragraph 8 specifically reads: “The defendant agrees to cause General American Life Insurance Company group policy #G-5750 in the amount of $500 Dollars upon defendant’s life; Union Electric Group Policy #G-5750 in the amount of $4,000 Dollars upon defendant’s life; . . to be continued in full force and effect, and defendant further agrees to continue to permit deductions iron [sic] his pay to be made in order to retain said policies in full force and effect. Defendant agrees to designate as beneficiaries of the aforementioned group life insurance policies the children of the marriage of the parties, equally. . ” There was only one group policy G-5750. He further agreed that in the event he remarried and other children were born, he was entitled to name and designate the subsequent born children as beneficiaries to share equally. No children were born to Mr. Rogers and his second wife, Vera.

      . The court reasoned that “[t]he insured makes no mention of any reservations of the balance [of the proceeds] and the document when viewed as a whole evidences an attempt to designate the whole policy for the benefit of his minor children rather than limit any one part of it for that purpose. That argument is therefore ruled against defendant, Vera Rogers.”

      . This argument is difficult to follow. If the children were limited to $4,500.00 (not each), there would be $55,500 remaining from the $60,000 accidental death benefits. We perceive that Vera is therefore seeking one-fifth of $55,-500.

      .If this contention is logically followed, it is difficult to comprehend why the children are entitled to one-fourth of the proceeds. If Mr. Rogers intended to limit the children to $4,500.00, why then are they entitled to one-fifth share of the proceeds?

      . Mutual Life Insurance Co. of New York v. Franck, 9 Cal.App.2d 528, 50 P.2d 480 (1935)—vested equitable interest; Shoudy v. Shoudy, 55 Cal.App. 344, 203 P. 433 (1921)—equitable interest; Visnik v. Mance, 326 Pa. 399, 191 A. 127, 129 (1937)—equitable assignee; Hundertmark v. Hundertmark, 372 Pa. 138, 93 A.2d 856, 858 (1952); Campbell v. Prudential Insurance Co., Ohio App., 73 Ohio Law Abst. 262, 137 N.E.2d 515, 519 (1955)—estoppel—agreement for the benefit of the children; Ehrlich v. Cohn, 1 A.D.2d 1004, 151 N.Y.S.2d 802, aff’d 2 N.Y.2d 886, 161 N.Y.S.2d 143, 141 N.E.2d 627 (1957)—children acquired an equitable interest in policy superior to that of second wife; Metropolitan Life Insurance Company v. Enright, 231 F.Supp. 275, 277 (S.D.Cal.1964); Provident Life and Accident Ins. Co. v. Gammage, 296 F.Supp. 1331, 1334 (S.D.Ga.1969); Equitable Life Assur. Soc. of U. S. v. Wilkins, 44 F.Supp. 594, 595 (E.D.N.Y.1942); Chilwell v. Chilwell, 40 Cal.App.2d 550, 105 P.2d 122, 124 (1940); Ferro v. Bologna, 31 N.Y.2d 30, 334 N.Y.S.2d 856, 286 N.E.2d 244, 245 (1972); 17 Couch, Insurance, § 63:370, p. 91 (2d ed. 1967); 46 C.J.S. Insurance § 1175, p. 83 (1946); 44 Am. Jur.2d, Insurance, § 1777, pp. 690-691 (1969); Annot., 175 A.L.R. 1231, 1233 (1947).

      . In Perry, a husband entered into a stipulation with his wife in a divorce proceeding to the effect that he would make his children beneficiaries on the insurance policies so that they would receive the proceeds. The Supreme Court held that “[o]n settled authority, that contract constituted an equitable assignment of the policies for the children’s benefit and gave them a vested right to the proceeds, subject to be defeated only by proof of a superior right. . ” Perry v. Perry, supra, 484 S.W.2d at 258.

      . “Maintain” was the word used in Prudential Insurance Co. of America v. Gibson, supra.


author: SIMEONE, Presiding Judge.

text:
    Azlee BLESSING, Plaintiff-Respondent, v. Thurman J. BLESSING, Defendant-Appellant.
    No. 36961.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 6, 1976.

      William R. Dorsey, Dorsey & Dorsey, Clayton, for defendant-appellant.
    Fred A. Gossom, Theodore D. Ponfil and Michael S. Moran, Blumenfeld, Kalishman, Marx, Tureen & Paster, P. C., Clayton, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

This is an appeal by defendant-appellant, Mr. Thurman J. Blessing, from a judgment entered by the circuit court of St. Louis County on January 21, 1975, which dissolved the marriage of the plaintiff-respondent, Mrs. Azlee Blessing, and Thurman Blessing and which awarded the wife certain “marital property.” This action was filed by Mrs. Blessing prior to the new dissolution law but was heard after the new law went into effect on January 1, 1974. The decree dissolving the marriage and dividing the marital property was entered after the effective date of the new law. For reasons hereinafter stated, we reverse the judgment and remand the cause for further proceedings.

This action was begun by Mrs. Blessing by the filing of a petition for “divorce” on August 3, 1972. An amended petition was filed on August 28, 1973, in which Mrs. Blessing alleged that the parties were married in 1969, separated in 1972 and alleged general indignities. The petition prayed (1) that the marriage be dissolved, (2) for alimony, both temporary and permanent, or in gross, (3) for suit money, court costs and attorney’s fees, and (4) that “the Court will make such other and further orders, judgments and decrees in the premises as the Court shall find to be just and equitable.” In due time, an answer was filed admitting certain of the allegations and denying the general indignities.

From the time of the original filing of the petition, innumerable motions were filed and heard, and many continuances were granted, although the record does not show at whose behest. Income and expense statements were filed. Interrogatories were filed and answered. Motions for alimony “pdl” were filed and continued. On one occasion in 1974, the cause was continued because of the illness of the trial judge.

The cause was originally set for trial October 30, 1972, but the cause was continued on May 5,1974, October 8,1974, and on December 2, 1974. On December 2, 1974, the cause was again continued and reset for trial on January 16 and 17, 1975.

On January 6, 1975, some ten days prior to the setting of the cause, the trial judge received a telephone call from Mr. Blessing’s former attorney seeking leave to withdraw from the case, since he had been discharged by Mr. Blessing. Mr. Blessing was present in the attorney’s office during the conversation. The court permitted the withdrawal but informed the attorney to advise Mr. Blessing that the cause had been specially set for January 16 and 17 and that the withdrawal would not entitle him to a continuance. On January 6, 1975, Mr. Blessing’s attorney wrote to Mr. Blessing informing him that he had withdrawn and specifically informed him that

‘Your case is set specifically in Division # 12 of the Circuit Court of St. Louis County ... on January 16, 1975 for trial. . . . During my conversation with the Judge concerning my withdrawal as your attorney, [the judge] specifically requested that you be notified that irrespective of my withdrawing, your case would be heard by the Court at the above specified time and that my withdrawing would not entitle you to a continuance of the case.’ ”

On the afternoon of January 15,1975, the day before the trial was to begin, the judge received a letter from Mr. Blessing. The letter read as follows:

“ ‘Due to complications involving a recent accident, I feel that my present physical condition makes me unable to appear before you in the Case of Blessing vs. Blessing presently scheduled for January 16 and 17, 1975. You may verify my present physical condition with my physician .
‘In order to prevent an unnecessary expense and inconvenience to all of the people involved; I respectfully request a continuance of this case to a date after February 15, 1975, which is my next scheduled appointment with my physician.
T have advised the attorney [for Mrs. Blessing] of my actions.’ ”

The letter was signed, sworn to and notarized. No statement or certificate from a physician accompanied the letter.

On the morning of the trial, January 16, 1975, Mr. Blessing did not appear, and no attorney appeared for him. Mrs. Blessing and her attorney, however, were present. For the record, the trial court explained the telephone call from Mr. Blessing’s attorney and the letter he received from Mr. Blessing the day before and indicated “[t]his is not a continuance application in accordance with the Statutes, and if it is a continuance application by Mr. Blessing, it is denied. We will proceed.”

The court proceeded to hear the testimony of Mrs. Blessing. She testified as to the various indignities, and testified as to the ownership of certain “marital property,” including stocks and a mobile home. She testified that Mr. Blessing owned several hundred shares of stock in a particular company which was acquired “in the course of the marriage . . She requested the court to award her the mobile home which was in joint names and one-half of the stock. She testified that she would waive any claim for maintenance in the event the court “should make a distribution of the marital property . . She admitted that the marriage was “irretrievably broken.”

On January 21,1975, the court entered its decree dissolving the marriage and awarded the petitioner 414 shares of stock or one half of those allegedly acquired by Mr. Blessing during the marriage, the mobile home and set apart to her as her sole property the shares of stock she owned in her own name. The court further ordered Mr. Blessing to execute the necessary documents to effect the transfers.

Within a week, present counsel for Mr. Blessing filed a motion for new trial, alleging that the court erred in (1) denying the written request and affidavit for a continuance because Mr. Blessing was physically incapacitated and unable to attend the trial, (2) depriving him of his right to a trial and to present his evidence since he had a meritorious defense, (3) depriving him of a trial “in violation of his constitutional rights,” (4) dividing the marital property because on the “face of the pleadings” plaintiff was not entitled to such relief, (5) finding that the shares of stock were marital property because the certificates would show they were acquired prior to the date of the marriage, and (6) failing to set aside to Mr. Blessing his property, contrary to § 452.330, RSMo Supp.1973.

The motion was vigorously argued and all of the above matters were discussed. However, the motion was overruled, and this appeal was taken.

Appellant, Mr. Blessing, contends here that (1) the court erred in denying the continuance, (2) the court lacked jurisdiction to enter an order awarding the marital property to Mrs. Blessing because her petition did not request such a division, and (3) Mr. Blessing was deprived of his constitutional right to a trial in violation of Article 1, Section 10 of the Missouri Constitution.

Our review in this case is governed by Rule 73.01, which directs us to review the case upon both the law and the evidence, giving due regard to the trial court to judge the credibility of the witnesses. If we believe that the trial court erred in its decree it is our duty to enter such judgment as the trial court should have entered. Murray v. Murray, 538 S.W.2d 587, 588 (Mo.App.1976); In re Marriage of Powers, 527 S.W.2d 949, 954 (Mo.App.1975); Richardson v. Richardson, 524 S.W. 2d 149, 151 (Mo.App.1975). The trial court’s decree is to be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

We reject appellant’s contention that the court erred in denying the continuance. While a litigant has a right to be present at his own hearing and the right to attend the trial, the principle is well established that the granting or denial of a continuance, even on the ground of illness, rests within the sound discretion of the trial court. Of course, that discretion must be judicial in nature and not arbitrary, and, although the ruling is reviewable on appeal, every intendment is in favor of the court’s ruling. Denial of a continuance is rarely reversible error. The trial court has the right to control the docket and the progress of litigation. The grant or denial of a continuance is therefore discretionary. State ex rel. Schaper v. Stussie, 487 S.W.2d 49 (Mo.App.1972).

The enforced absence of a party to a cause is not always a reason for a continuance, and whether in a particular case it is a good reason or not is to be determined by the trial court. Riverside Lumber Co. v. Schmidt, 130 Mo.App. 227, 109 S.W. 71, 72 (1908); Erhart v. Todd, 325 S.W.2d 750, 753 (Mo.1959); Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 228 (1915).

We find no abuse of discretion under the circumstances of this case. Here, the cause had been reset a number of times, although there is no indication that it was at the request of the defendant, Mr. Blessing. Two specific days had been set aside for the contested trial; no certificate of a physician was attached to the “affidavit” of Mr. Blessing, cf. Smith v. Smith, supra, 34 S.W. 471; no real “facts” were stated in the affidavit as required by § 510.090 and Rule 65.03; and no particular facts as to what Mr. Blessing would prove were stated in violation of § 510.100 and Rule 56.04. A trial judge is under no obligation to seek out a physician to determine whether the party or a witness is suffering from an illness. Mr. Blessing was aware, when his attorney telephoned the judge, that the trial was to be held on January 16,1975, even though his attorney was allowed to withdraw. He had over a week to employ a new attorney to represent him and be present at the hearing if he were unable to attend.

Under all the circumstances, we cannot conclude that the trial court abused its discretion in denying the continuance the day before the hearing was set.

The second point raised by the appellant is more troublesome. The precise issue is whether, when a petition for “divorce” is filed prior to the effective date of the new dissolution law praying for a “divorce,” alimony and attorney’s fees but not for a division of property, and a hearing is held after the effective date of the new law, the court may order a division of the marital property in the absence of an amendment of the petition specifically praying for a division of the marital property. It is true that the petition for “divorce” contained a prayer for “divorce,” “alimony,” suit money and attorney’s fees, and a “general prayer” for relief, but it did not specifically request a division of the marital property.

Section 452.310 provides that the petition in a proceeding for dissolution of marriage shall allege and set forth various matters including “the relief sought.” § 452.310, subsection 2(6). But, section 452.330, subsection 1, imposes a duty on the court to “divide the marital property in such proportions as the court deems just . . . .” On the one hand, it could be argued that without a specific prayer for distribution the court is required to divide the marital property, and on the other, that before a division is made it must be requested in accordance with § 452.310, subsection 2(6).

Prior to the effective date of the dissolution law, our courts were not authorized to adjudicate property rights or to divest title to property, real or personal, from one party and vest it in the other. Bishop v. Bishop, 151 S.W.2d 553, 556 (Mo.App.1941); Rhoads v. Rhoads, 342 Mo. 934, 119 S.W.2d 247 (1938); § 452.070, RSMo 1969, repealed L.1973, HB 315, § A; Aylor v. Aylor, 186 S.W. 1068 (Mo.1916); Fisher v. Fisher, 207 S.W. 261 (Mo.App.1918); Watts v. Watts, 304 Mo. 361, 263 S.W. 421 (Mo.1924); cases collected in note 73, § 452.070, V.A.M.S. (1952).

But under the new law it is incumbent upon the trial court to “divide the marital property in such proportions as the court deems just . . . .” § 452.330. The question therefore is whether the trial court may make a division of the marital property when the original petition filed prior to the effective date of the new law does not request division and no amendment praying for such division of marital property is made.

Rule 55.05 requires that a pleading which sets forth a claim for relief shall contain (1) a short and plain statement of the facts showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which the pleader deems himself entitled. This rule continues the practice of “fact” pleading in existence prior to the adoption of the Rules of Civil Procedure. In this respect, our practice differs from the philosophy of the Federal Rules of Civil Procedure authorizing “notice pleading.” Fed.R.Civ.P. 8(a).

The pleadings in Missouri continue to be of the greatest utility in defining the issues of a case. Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25, 28 (1946). The pleadings perform the function of defining the issues and informing the defendant what allegations must be met. While it has been stated that the prayer forms no part of the claim, under a general prayer for relief, only such relief may be granted which is within the scope of the pleadings and the evidence between the parties. And many decisions hold that where the defendant in a “divorce” case does not appear at trial, the plaintiff is confined to the facts stated in the petition and to the specific relief prayed.

We believe this to be a sound principle. We believe that the requirement of § 452.-330 that the trial court “shall divide the marital property” must be read in conjunction with § 452.310, subsection 2(6). When read together, the trial court is required to divide the marital property when such relief is requested in the petition or in an amended petition.

While this case does not present a classic default judgment situation, the facts are analogous to a default case. Although the defendant here was served and answered, he was not present at the hearing on January 16, 1975. It has always been the rule that in a default case the petitioner is not entitled to relief beyond that requested in the petition. § 511.160; Rule 74.11; White v. McFarland, 148 Mo.App. 338, 128 S.W. 23 (1910).

In the posture of this case, and under the unique facts presented, we hold therefore that where (1) the petition did not state facts material to a division of the marital property, (2) the petitioner did not pray for a division of marital property in the original or amended petition, (3) the respondent was not present at the hearing and no evidence was presented which would, under the rules, amend the petition to conform to the proof, or there was no substantial evidence to show that the appellant had a clear knowledge that the marital property was to be divided, and (4) there has been a drastic change in the new dissolution law giving the courts power to divide property where none existed previously — the appellant-husband should be provided an opportunity to be heard on the issue of the division of the marital property. Particularly is this true when appellant here asserts that evidence may well show that the property divided by the court was not marital property under § 452.330 and was acquired prior to the marriage. Under all the circumstances, we hold that the appellant should have such opportunity to be heard on the issue of the division of the marital property.

As to appellant’s third point, we find it to be without merit, since it was not preserved for review.

We have read the transcript, the authorities relied upon by both parties and believe that the cause should be reversed and remanded for a hearing on the issue of the division of marital property.

The judgment is reversed and the cause remanded for a hearing on the issue of the division of marital property.

KELLY and GUNN, JJ., concur.

      . The memorandum stated, however, that “Petitioner and Respondent appear in person and by their respective attorneys[;] cause continued and reset for trial on January 16, 1974 [sic] at 9:30 a. m. and on January 17, 1974 [sic] at 10:00 a. m.”

      . Rules 65.01, 65.03, 65.04, 65.05; Savings Finance Corporation v. Blair, 280 S.W.2d 675, 678 (Mo.App.1955), and cases cited therein; Van Fleet v. Van Fleet, 253 S.W.2d 508, 510 (Mo.App.1952) — divorce case — wife had higher than normal blood pressure; Smith v. Smith, 132 Mo. 681, 34 S.W. 471, 472-73 (1896)— sickness — no certificate from physician, only affidavit which did not disclose ailment; Gregory v. Hansen, 224 S.W. 82 (Mo.App.1920) — illness — absence of facts; Owens v. Tinsley, 21 Mo. 423 (1855)—illness; McClellan v. McClellan, 97 S.W.2d 853, 854 (Mo.App.1936) — illness; Albi v. Reed, 281 S.W.2d 882, 886 (Mo.1955)—sickness of client; 17 Am.Jur.2d, Continuance, § 18, pp. 137-140 (1964); Annot., 68 A.L.R.2d 470 (1959); 17 C.J.S. Continuances § 29, pp. 407-10 (1963); Annot., 4 A.L.R.Fed. 929, 946-951 (1970).

      . Rottman Distilling Co. v. Van Frank, 88 Mo.App. 50 (1901). Illness of a party is not ipso facto grounds for a continuance.

      . Compare Gregory v. Hansen, supra, 224 S.W. 82; Kyger v. Koerper, 207 S.W.2d 46 (Mo.banc 1946).

      . Cf. Gregory v. Hansen, supra, 224 S.W. 82— “. . . An application for a continuance, which does not state what particular facts the absent one, party or witness, would prove, if present, could not in any case be sufficient. . . 224 S.W. at 82; Carr v. Carr, 308 S.W.2d 357 (Mo.App.1957), implies that the affidavit applies to a party.

      . §§ 452.300—452.415, RSMo Supp.1973.

      . Section 303 of the Uniform Marriage and Divorce Act also requires that the verified petition shall set forth, inter alia, the “relief sought.”

      . “Specific property may be awarded to either party upon the granting of a divorce if done by a stipulation of the parties.” Missouri Family Law (Mo.Bar CLE), ch. 12, Divorce, p. 218 (1970); note 67, § 452.070, V.A.M.S. (1952);
        North v. North, 339 Mo. 1226, 100 S.W.2d 582, 584, 109 A.L.R. 1061 (1936).

      . Subsection 4, § 452.330 provides that “[t]he court’s order as it affects distribution of marital property shall be a final order not subject to modification.”

      . We do not deal with the question of custody of children or support or maintenance. Section 452.375 requires the trial court to “determine custody in accordance with the best interests of the child. . . . ”

      . See cases collected in 23 Mo. Digest, Pleading, (1962), and notes 32 and 33, § 509.050, V.A.M.S.; Homan v. Employers Reinsurance Corporation, 345 Mo. 650, 136 S.W.2d 289, 127 A.L.R. 163 (1939); Caldwell v. Eubanks, 326 Mo. 185, 30 S.W.2d 976, 72 A.L.R. 621 (1930); Willman v. Beheler, 499 S.W.2d 770, 778 (Mo.1973). The principle that may be deduced is that a general prayer for relief broadens the range of relief only in situations in which the relief is based upon, or clearly related to, the allegations and the prayer. In this case, at the time of filing the divorce the court had no power to divide property, and the division of property was not directly related to the allegations in the petition.

      . Rogers v. Rogers, 35 Idaho 645, 208 P. 234 (1922); Remington v. Superior Court, 69 Cal. 633, 11 P. 252, 253 (1886); Kinsey v. Kinsey, 143 W.Va. 574, 103 S.E.2d 409, 414 (1958) [statute]; Kitchens v. Kitchens, 162 So.2d 539, 542 (Fla.App.1964); 24 Am.Jur.2d, Divorce and Separation, § 938, pp. 1072-1073 (1966); Annot., 152 A.L.R. 445, 456 (1944), and 12 A.L.R.2d 340, 344 (1950); see discussion in 27B C.J.S. Divorce § 299(4), pp. 325-328 (1959).

      . In Remington v. Superior Court, supra, 11 P. at 253, it is stated: . We apprehend that in an action for divorce, if a disposition of property is sought, there should be some pleading (either by the original complaint or by supplemental pleading) by which an issue as to such property would be tendered. . . ”


author: WEIER, Presiding Judge.

text:
    In the Matter of C. G., a minor.
    No. 38033.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 13, 1976.

      Tessler & Geigerman, Michael S. Geiger-man, Clayton, for petitioner.
    Peter Lumaghi, St. Louis, Allan F. Stewart, Legal Aid Society, Clayton, Harold G. Johnson, St. Ann, for minor.
   WEIER, Presiding Judge.

This is a proceeding in habeas corpus seeking custody of a 15 year old non-resident run away minor. Our writ was issued upon a petition which alleged that the minor child was removed from custody of the petitioner, the natural mother, without her consent, and was being illegally restrained by the juvenile authorities of St. Louis County without a valid custody order based on competent facts sufficient to remove the child from the custody of the mother.

The return of the St. Louis County Circuit Court, Juvenile Division, stated that on December 12, 1975 Mrs. Rebecca Anderson, half-sister of the minor child, accompanied by the child, applied for legal and physical custody at the Neglect Department of the Juvenile Court. An interview was held, a call was made to the natural mother, who resided in Texas, and then an informal hearing was held by a duty officer who recommended detention under § 211.141, RSMo. 1969. On this date, the judge of the Juvenile Division affixed his signature to the detention order, a copy of the order being attached to the return. Subsequently, on March 11, 1976, as authorized by the court, the petition of the Juvenile Officer was filed alleging that the child was without proper care, custody and treatment, and that the parents had refused to provide care for her well-being. Two settings on this petition, one on March 17, 1976, and the second on April 7, 1976, were continued at the request of the mother.

The Juvenile Court, in its order of December 12, 1975, had specified that the minor would be placed under the temporary physical custody of her half-sister, Mrs. Rebecca Anderson, and her husband, Mr. Roger Anderson. The Andersons filed a return in this habeas corpus proceeding raising the issue of fitness of the mother and suggested that the welfare of the child called for continued custody in the respondents. The petitioner, in her answer, denied both the legality of the child’s detention and the allegations of unfitness and welfare of the child.

The first issue with which we are confronted is whether the St. Louis County Juvenile Court has jurisdiction to adjudicate the custody of a non-domiciliary minor child who is physically present within its territorial jurisdiction. Section 211.031, RSMo. 1969, provides that the juvenile court shall have exclusive jurisdiction in proceedings “[ijnvolving any child who may be * * * within the county * * * who is alleged to be in need of care and treatment * * *This language means physical presence within the county. In re M. W., 504 S.W.2d 189, 191[1] (Mo.App.1973). Under the authority of § 211.-131(3), RSMo. 1969, “The jurisdiction of the court attaches from the time the child is taken into custody.”

The courts of this state generally have jurisdiction over children who are physically present within this state and may adjudicate custody and other matters affecting their interests, especially where the welfare of the children is involved. Urbanek v. Urbanek, 503 S.W.2d 434, 441[11] (Mo.App.1973); Kennedy v. Carman, 471 S.W.2d 275 (Mo.App.1971); Restatement (Second), Conflict of Laws, § 79. Such jurisdiction is inherent in the position of the state as parens patriae to the child and is based upon the concern that courts have for “the protection that is due to the incompetent or helpless.” Justice Cardozo in Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624 (1925). It is particularly appropriate that juvenile courts have jurisdiction of non-domiciliary minors who are physically present within the territorial venue of the court and who are determined to be in need of care and protection under Chapter 211, RSMo. 1969.

The detention order issued by the Juvenile Court dated December 12, 1975 indicated that the minor child was without legal protection and proper care and support. As previously stated, the court authorized the Juvenile Officer to file a petition with the court alleging that the child was without proper care, custody and treatment, and that the persons responsible for her care had neglected to provide support and other care necessary for her well-being. The court under its original detention order, by authority of § 211.131, supra, has properly asserted custody over the child and has indicated an intention to pursue its inquiry under § 211.031, supra, to determine whether the child is in need of care and treatment, or whether the persons legally responsible for her care and support have neglected or refused to provide the same. We find no invalidity in the proceedings to this point, and affirm the court’s jurisdictional power to proceed to inquire with regard to the welfare of the child under the Juvenile Code of this state.

The effect of the Interstate Compact on Juveniles, § 210.570, RSMo. 1969, has been raised in this proceeding. The attorneys for petitioner have filed in this court a copy of a requisition order purportedly issued by the Juvenile Court of Wichita County, Texas, wherein it is recited that the minor child left her classes in the high school of Electra, Texas in that County and ran away with her half-sister, Becky Anderson, without petitioner’s knowledge or consent. The court order further determines that petitioner is entitled to legal custody and that it would be to the best interest of the minor to compel her to return to her domicile in Texas. Resident counsel for petitioner in this state is appointed by the order to receive the juvenile and transport her to Texas. Although the order is unauthenticated (28 U.S.C.A. § 1738; § 490.130, RSMo. 1969), out of respect for the judgments of competent courts in sister states and comity between the states, we have considered its effect upon the proceedings before us and in the Juvenile Court of St. Louis County, Missouri. Article IV of the Compact, as set forth in § 210.570, concerns run away children. The procedure for their return to their state of origin is set out therein. The article also contains a provision that in the event there is pending in the state where the juvenile is found any proceeding to have him adjudicated a delinquent juvenile for an act committed within such state, he is not to be returned without the consent of the state where he is found until discharged from detention or supervision. Section 210.595, RSMo. 1969, contains this definition: “The term ‘delinquent juvenile’ as used in the inter-state compact on juveniles includes those persons subject to jurisdiction of the juvenile court within the meaning of subdivisions (1) and (2) of section 211.031, RSMo.” Subsection (1) includes the provision with regard to children who are in need of care and treatment because of neglect or without proper care and custody. Thus Article IV, when taken in conjunction with the definition as given, allows the Juvenile Court to detain the minor child, order appropriate detention and supervision, or it may consent to her return pursuant to a proper requisition issued by a court of competent jurisdiction in the state where she resided. For a discussion of the paramount claims of state of physical presence against state of parental domicile under the compact on juveniles, see Application of Chin, 41 Misc.2d 641, 246 N.Y.S.2d 306 (1963); Chin v. Yen, 41 Misc.2d 650, 246 N.Y.S.2d 316 (1963).

Since we have concluded that the Juvenile Court of St. Louis County has jurisdiction over the minor child, the writ of habeas corpus heretofore issued by us is quashed and the custody of said child is remanded to that court.

McMILLIAN and RENDLEN, JJ., concur.


author: DOWD, Judge.

text:
    Harold SCHOESSEL, Plaintiff-Appellant, v. STANDARD AUTOMOTIVE COMPONENTS (MISSOURI RESEARCH) et al., Defendant-Respondent.
    No. 35968.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 13, 1976.
    Harry J. Nichols, St. Louis, for plaintiff-appellant.
    Edward Vokoun, St. Louis, for defendant-respondent.
   DOWD, Judge.

This is an appeal by employee Harold Schoessel in a workmen’s compensation proceeding from a judgment of the Circuit Court of St. Louis County which affirmed the final award of the Labor and Industrial Relations Commission of Missouri (hereinafter called Commission) denying compensation for an injury to the right elbow. The Commission reversed the decision of the referee who had found the injury was caused as a result of an accident. We affirm.

The sole issue here is whether the employee sustained an accident as a matter of law. The Commission found the incident allegedly causing the injury was not an accident as defined by § 287.020(2) RSMo 1969 and as interpreted by our courts because there was no abnormal or unusual strain at the time of the occurrence. This is a case in which the claimant’s testimony is undisputed and constitutes the only evidence relevant to the incident in question. There is no question of conflict, credibility or weight of the evidence. Thus whether the finding of the Commission was correct becomes a matter of law, and we are not bound by its result. Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 297[9] (Mo.1965), McLain v. Yellow Cab Co., 439 S.W.2d 200, 202[4] (Mo.App.1969). We may review the whole record to see if the Commission correctly interpreted the law. Baker v. Krey Packing Co., 398 S.W.2d 185, 187[2] (Mo.App.1965). We hold that it did.

The facts show that on August 3, 1970, the employee was employed testing alternators. He tested from 100-400 alternators per day. He would lean over an assembly line bench with his heels off the floor and bend forward to grasp alternators weighing 8-13 pounds that moved along a conveyor belt above the bench. In the performance of his duties on the assembly line it was customary that he worked in an off-balance position. He would normally grasp two alternators at a time by the pulley end in order to pull them towards himself and test them. This grasping would cause the alternators to rotate one way or the other depending on which end was the heaviest. Whenever he picked up the alternators by the pulley end they would turn to a certain degree. Then, he would pull them towards himself, and twist them over to inspect the opposite side. He spent about 2 or 3 hours a day turning over alternators and pulling them towards himself. On this particular occasion, the alternator “turned over” a little further, so he had to turn it back in the reverse direction. At this point he felt a sharp pain in his right elbow. He continued to work and reported the incident to the foreman a week later. On cross examination he testified that this was not the first time an alternator had turned so far over but that it had happened on the average of a dozen times a week in the eleven months since he had been working there. The only thing unusual on the particular occasion was the onset of pain. Employee testified that the weight of the particular alternator, the position of his body, and the motion of pulling the alternator toward himself were all according to his usual customs.

Under these facts, the Commission correctly concluded that there was no injury due to “accident” under the provisions of the Missouri Workmen’s Compensation Act. Ever since the landmark case of Crow v. Missouri Implement Tractor Company, 307 S.W.2d 401, 405[1] (Mo.banc 1957), which eliminated the “slip or fall” requirement in accident cases, it has become clear that an employee must at least prove he suffered unusual and abnormal strain before he can receive compensation for an “accident.” A long line of cases attests to this fact. Davies v. Carter Carburetor, 429 S.W.2d 738, 746[4] (Mo.1968), Harryman v. L-N Buick-Pontiac, Inc., 402 S.W.2d 828, 831[5] (Mo.App.1966), Roux v. Dugal’s Big Star Food Store, 510 S.W.2d 810, 812[4] (Mo.App.1974). “Performance of any manual task is accompanied by a certain degree of straining the muscles . . . . Injuries produced by strains which are normal for the job to be performed in a customary fashion are not compensable although the amount of straining may be great or would be considered abnormal in other classes of employment . . . McClain v. Yellow Cab Company, supra at 203[9].

It is immaterial that the medical experts here disagreed over whether the employee’s repetitive arm motions during work were the medical cause of his elbow strain. Even if we believe appellant’s expert who testified that the occurrence on August 3 was the medical cause of tendonitis in the right elbow area, the fact remains that such injury was not due to unusual or abnormal strain. Appellant testified that he was following his normal routine in his normal stance and position and that he customarily worked in an off-balance position. The only thing unique on this particular occasion was the onset of pain. Thus this case can be readily distinguished from the recent case by this court of Lindquist v. Container Corp. of America, 537 S.W.2d 676 (1976). There, in a well-reasoned opinion written by Judge Stewart, this court held that the employee suffered a compensable accident when he performed his lifting job, not in his usual manner but by placing himself in an awkward position and lifting hurriedly.

Employee contends that because his injury was sudden, violent and unforeseen, it falls within the statutory definition of “accident” as set out in Section 287.020(2) which reads in part, “accident shall . . . mean an unexpected or unforeseen event happening suddenly or violently . . . .” He relies on Lampkin v. Harzfeld’s, 407 S.W.2d 894 (Mo.1966) as authority for this contention. His reliance on Lampkin is misplaced. Lampkin held that an adverse reaction to an influenza innocu-lation constituted a compensable accident. A similar argument was presented and rejected in the recent case of Herring v. Safeway Stores, Inc., 499 S.W.2d 538 (Mo.App.1973), at 540[3] which also distinguished Lampkin. Herring was a lifting case where there was also held to have been no accident. It is the accident which must be “sudden, violent, and unforeseen,” not the injury. Bauer v. Independent Stave Co., 417 S.W.2d 693, 696[3, 4] (Mo.App.1967), Tines v. Brown Shoe Co., 290 S.W.2d 200, 201-202[1] (Mo.App.1956).

Appellant briefly mentions an alternative theory of occupational disease. Suffice it to say that he made no such claim before the Commission and is therefore foreclosed from raising it on appeal. Bryant v. Montgomery Ward & Co., 416 S.W.2d 195, 200-201[9] (Mo.App.1967).

Here we have a situation where the employee was engaged in his normal work, using the same method he had often used, without any variance of his routine. The only thing unusual was the onset of pain. It has long been the rule that pain alone without any unexpected or. unforeseen event is not an accident within the meaning the Missouri Workmen’s Compensation Act. Keller v. Bechtel, McCone, Parsons Corp., 174 S.W.2d 925, 927[4] (Mo.App.1943). The judgment is affirmed.

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

      . See generally 1A A. Larson, The Law of Workmen’s Compensation §§ 38.20-38.30 (1973), and Carroll, Present Concept of Accident Under Missouri Workmen's Compensation

        Law, 21 J.Mo.Bar 208 (1965). For an excellent analysis of the present law of workmen’s compensation in Missouri see Domrese & Graham, Workmen’s Compensation in Missouri, 19 St.L. U.L.J. 1 (1974).


text:
    Junior C. STROUP and Eula Mae Stroup, Plaintiffs-Appellants, v. Noel C. JOHNSON and Mrs. Noel C. Johnson, Defendants-Respondents.
    No. 36926.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 13, 1976.
    Charles G. Hyler, Farmington, for plaintiffs-appellants.
    Guilfoil, Symington & Petzall, J. J. Shoe-make, St. Louis, for defendants-respondents.
   WEIER, Presiding Judge.

This is an appeal from a judgment for defendants Mr. and Mrs. Noel C. Johnson on a suit filed by plaintiffs Mr. and Mrs. Junior C. Stroup to quiet title in a 15 foot wide easement used as a passageway for livestock across the highway frontage of plaintiffs’ land. Plaintiffs contend this easement terminated in 1929 when Mr. and Mrs. William A. Smith sold the land to which it attached, and therefore defendants own no interest in the property. We affirm the decision of the trial court.

All of the land involved in the dispute was originally owned by Mr. and Mrs. Smith. In 1921 they granted an eighty-three acre tract to Frank W. and Henry E. Bieser, plaintiffs’ remote predecessors in title. In that deed the following reservation is contained:

“First parties reserve for themselves a strip of land 15 feet wide along the South side of the above mentioned County Road, beginning at the North West corner of the above mentioned Eighty (80) acres, and extending in a Northeastwardly direction to a point opposite the East abutement (sic) of a Concrete Bridge, across the said County Road, which bridge was built large enough to permit of the passage of stock under said road, and the strip of land hereby reserved is to be held by first parties, as a passage-way for stock between the tract of land lying on the North side of the road, and the tract in the Northwest Quarter of the Southwest Quarter of Section Twenty-Eight (28) now held by first parties so long as they own both tracts as above mentioned, and should they sell either of the above mentioned tracts, so that they do not require the use of this 15 foot strip as a passage-way for stock, then the title to the same shall pass to and be vested in second parties, their heirs or assigns.”

In 1929 Mr. and Mrs. Smith conveyed their remaining land to Rosa B. Manley through whom defendants claim title. The 1929 deed specifically mentions the easement as a part of the conveyance. At the time of the trial of this case, defendants Johnson owned 35 acres on the north side and 50 acres on the south side of the county road. The easement commenced at the northeast corner of the 50 acre tract. This corner is south of the road and across from the southwest corner of the 35 acre tract. The easement extended eastwardly across the north side of the 9.677 acre Stroup tract adjacent to the south side of the county road to a bridge on the road. This bridge, used as an underpass, furnished a way for the stock to travel north to the 35 acre tract from the east end of the easement.

As stipulated at trial, the only issue to be resolved was whether the reservation of the easement in the 1921 deed from Smith to Bieser created an easement which in turn was conveyed through a chain of title to defendants Johnson.

Plaintiffs assert the easement was determinable on the condition that Mr. and Mrs. Smith should sell either or both of their tracts of land connected by the passageway. Under this interpretation, the easement terminated when the Smiths sold the tracts on both sides of the road to Manley in 1929. Defendants claim the easement has not terminated since the condition expressed when the easement was created is that it would terminate when either of the tracts should be sold without the other “so that they [the owners of the easement] do not require the use of this 15 foot strip as a passage-way” between separate parts of their land. All of the grantees of the reserved estate including defendants have owned the land on both sides of the highway which the easement connects. Defendants maintain the condition which terminates the easement has not occurred because they still own tracts on both sides of the road and need this easement to move cattle between their fields. The only point plaintiffs raised in this appeal is that the trial court improperly interpreted the reservation in the 1921 deed.

In interpreting the meaning of a clause in a deed reserving an easement, a consideration of the clause as a whole will be made with the intent of the parties controlling. Stotzenberger v. Perkins, 332 Mo. 391, 58 S.W.2d 983, 986[2] (1933); 154 A.L.R. 11. The fact that the word “heirs” is not included in the reservation does not prevent the easement from being appurtenant to the land. Stoutimore v. Quincy O. & K. C. R. Co., 215 Mo.App. 194, 256 S.W. 121, 123[1] (1923); 28 C.J.S. Easements § 29, p. 685; see § 442.460, RSMo 1969. In Winthrop v. Fairbanks, 41 Me. 307, 312-313 (1856) [cited with approval in Snoddy v. Bolen, 122 Mo. 479, 25 S.W. 932, 933 (banc 1894)] a right-of-way for the passage of cattle between non-adjacent fields was reserved in the grantor himself. The Winthrop court, however, held that because the right-of-way was intended for the benefit of the grantor’s lands and was annexed as appurtenant thereto, the easement could be passed by deed. It is clear that the Smiths reserved an appurtenant easement. Their land was benefited by this passage-way connecting the fields. Without the easement they would have difficulty in moving livestock between the fields separated by the roadway.

An appurtenant easement attaches to and passes with the conveyance of the land even though it may not be specifically mentioned in the transfer. Beldner v. General Electric Company, 451 S.W.2d 65, 75[6-9] (Mo.1970). When the Smiths conveyed the dominant tenement to Manley in 1929, they conveyed the easement as part of the grant. Defendants Johnson, as owners of the two tracts separated by the road, are owners of the easement for the passage of stock, terminable if they sell either tract so they do not require the use of the easement. It will not be terminable by mere nonuser. United Realty Co. v. Outlaw, 522 S.W.2d 100, 101 (Mo.App.1975).

The judgment is affirmed.

McMILLIAN and RENDLEN, JJ., concur.


author: CLEMENS, Presiding Judge.

text:
    YELLOW SERVICE COMPANY, INC., Respondent, v. HUMAN DEVELOPMENT CORP. OF ST. LOUIS, Appellant.
    No. 37427.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 13, 1976.
    Louis Gilden, Doreen D. Dodson, St. Louis, for appellant.
    Robert W. Henry, Clayton, for respondent.
   CLEMENS, Presiding Judge.

Plaintiff-lessor received a $4,500 jury verdict and judgment for damages done to its building by defendant-lessee’s failure to maintain the premises in good repair.

Defendant-lessee, Human Development Corporation, rented office space from plaintiff-lessor Yellow Service Company, Inc., agreeing to keep “the premises, and all parts thereof ... in good and substantial repair and in tenantable condition.” Upon inspection when defendant vacated the building, plaintiff found broken Venetian blinds, missing ceiling tile, bolt holes in the floor, numerous places in which paint was removed from the walls and names painted in gold spray paint on a wall in a washroom. Plaintiff’s witness, Spencer Longhibler, a painting contractor, testified he had examined the building and observed the described damage. He testified to the repair work he had done, the price he had charged and the reasonableness of that price. When specifying the repairs he had done, Longhibler stated he had “contracted” to do various repair jobs on the premises for $2,439. Defendant unsuccessfully objected and requested a mistrial on the grounds the contract between plaintiff-lessor and Longhibler was not binding upon defendant-lessee. The trial court ruled Longhibler had merely testified as to the work he had done and the price he charged for it. Defendant then asked that the contract between Longhibler and plaintiff be produced, contending the best evidence rule so required. The court disagreed, on the grounds that the facts establishing the reasonableness of the charge for repairs to the premises existed independently of the contract and therefore the contract was secondary, not primary evidence on the issue of damages.

On appeal, defendant urges us to find reveisible error in the trial court’s actions relating to the contract between Lon-ghibler and plaintiff. We are unable to ascertain from the points relied on portion of defendant’s brief exactly what theory of law defendant believes requires reversal: “The court committed prejudicial error in permitting oral testimony concerning an existing written contract between plaintiff and Mr. Spencer Longhibler for repairs to the premises, when the written contract was available to plaintiff,” and “the court erred in shifting the burden of proof to defendant by placing the burden of producing the written contract between plaintiff and Longhibler on the defendant.” These are abstract statements and fail to comply with Rule 84.04(d), requiring points relied on to state briefly and concisely what rulings are erroneous and “wherein and why they are claimed to be erroneous.” See Thigpen v. Dodd’s Truck Lines, Inc., 498 S.W.2d 816[5, 6] (Mo.App.1973). The requirements of Rule 84.04 are to be strictly applied. Long v. Lincoln, 528 S.W.2d 512[1, 2] (Mo.App.1975). Defendant may not rely on this court on appeal to piece together its case from abstract points relied on. Defendant’s quoted points preserve nothing for review.

In reviewing defendant’s second contention that there was no evidence to support an instruction regarding defendant’s failure to maintain the premises in good repair, we consider the evidence most favorable to plaintiff’s verdict. Frantz v. State Farm Mutual Automobile Insurance Co., 526 S.W.2d 345[1] (Mo.App.1975). Defendant admits the washroom wall had names spray painted on it; this alone contradicts defendant’s assertion there was no supportive evidence. The record further shows evidence of broken Venetian blinds, bolt holes, missing ceiling tile and other facts from which a jury could conclude defendant failed to maintain the premises in good repair. Defendant’s second contention is without merit.

Defendant finally contends the court erred in giving MAI 4.01 (Modified) because the jury had no evidence of the amount of damages to be assessed against defendant. In determining what would fairly compensate plaintiff for damages done by defendant, the jury could consider the cost of restoring the damaged property to its former condition, and, if that amount is not enough, the diminution in the building’s value. Jack L. Baker Companies, Inc. v. Pasley Manufacturing and Distributing Co., 413 S.W.2d 268[7] (Mo.1967). Here plaintiff presented evidence of cost of restoration and also diminution in value. The latter was established by William Seibert, plaintiff’s sole stockholder, that the property was worth $85,000 when defendant assumed occupancy and only $80,000 when defendant vacated. The $4,500 verdict indicates the jury concluded the diminution in value was not entirely attributable to the damages caused by defendant. We deny defendant’s challenge to the amount of damages.

Judgment affirmed.

DOWD and STEWART, JJ., concur.