author: TURNAGE, Judge.

text:
    George WILLIAMS, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28726.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1977.

      Eichner, Hollander & Platke, Toby H. Hollander, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   TURNAGE, Judge.

George Williams was convicted of second degree murder and sentenced to serve 99 years in confinement.

On this appeal Williams asserts (1) he was denied adequate assistance of counsel; (2) the trial court unduly restricted Williams’ counsel in the voir dire; (3) the tape-recorded admission by Williams was improperly admitted; and (4) the court erred in seating an alternate juror. Affirmed.

Williams’ conviction resulted from the stabbing death of Lt. Harold Atkinson, a guard in the Missouri State Penitentiary. Williams was charged with this murder following his admission of the commission of this crime. On this appeal Williams does not challenge the sufficiency of the evidence to sustain his conviction. Suffice it to say Lt. Atkinson was found dead under a bunk in a cell in the Penitentiary. He had received approximately 69 stab wounds throughout his head, throat, chest and abdomen. As a result of the ensuing investigation, Williams was questioned and subsequently made his admission after receiving notice of his constitutional rights.

Williams first asserts he was denied the effective assistance of counsel in his trial because his counsel filed a motion for a change of venue from Cole County, but failed to accompany the motion with the required affidavits under § 545.490, RSMo 1969, and because his counsel failed to call Williams to testify during a hearing on his motion to suppress his tape-recorded admission.

The motion for change of venue was filed about three months after the murder and about three months prior to the trial. The court overruled the motion because it did not comply with the law and Williams contends counsel should have refiled a proper motion in the three months remaining before his trial. He bases his claim that a change of venue motion should have been filed on the publicity concerning the crime in the Jefferson City newspapers.

With reference to the failure to call Williams to testify on the motion to suppress the tape recording, Williams states this deprived him of any possible evidence he would have had concerning the involuntary nature of the statement.

Williams is represented by different counsel on this appeal than represented him at trial. No issue concerning ineffective assistance of counsel was raised in the motion for new trial and thus the issue is not preserved for review on this appeal. State v. Angel, 520 S.W.2d 687, 689[7] (Mo.App.1975). In State v. Hedrick, 499 S.W.2d 583, 586 (Mo.App.1973) this court stated:

“An allegation of ineffective assistance of counsel may be treated on direct appeal from the judgment of conviction, however, either as preserved in the motion for new trial under rule 27.20 or as plain error affecting substantial rights under Rule 27.20(c), where the allegations arise from isolated instances and the record as to each of them is fully developed. State v. Phillips, 460 S.W.2d 567, 569[3] (Mo.1970); State v. Bosler, 432 S.W.2d 237, 238[1, 2] (Mo.1968).”

Williams has not requested this matter to be reviewed under Rule 27.20(c) as plain error. In addition, the matters complained of are not fully enough developed in this record to permit a ruling. However, Williams is free to file a motion under Rule 27.26 under which his complaint concerning the inaction of his counsel may be fully developed by evidence and may be ruled on with the benefit of evidence both from Williams and other witnesses. State v. McClain, 541 S.W.2d 351, 356[14, 15] (Mo.App.1976) fully explains the reasons this matter can be much more satisfactorily ruled following a motion under Rule 27.26.

Williams next complains of the court’s action in denying his counsel the right to ask certain questions when counsel was asking members of the jury panel individual questions. Prior to the time counsel undertook his individual questioning, the trial court had informed the jury that Williams was charged with having killed Lt. Atkinson, and Williams had denied the charge. The court told the jury this raised an issue of fact which must be decided by the jury subject to instructions concerning the law which the court would give. The court further stated one of the instructions which would be given to them at the end of the case would advise them that the fact the defendant (Williams) had been charged with an offense is not evidence and it creates no inference that an offense was committed or that defendant was guilty. The court further stated the defendant is presumed to be innocent unless and until the jury, after their deliberations, finds him guilty. The panel was told this presumption of innocence placed upon the State the burden of proving beyond a reasonable doubt the defendant is guilty.

The court further informed the panel that if the evidence in the case left in their minds a reasonable doubt as to the defendant’s guilt, then they must return a verdict of not guilty. The court then inquired of the panel if there were any who did not understand the instructions. No one responded to this inquiry. The court then inquired if anyone on the panel could not follow the instructions he had just stated they would be given. Again no one on the panel responded.

On this appeal Williams contends the trial court erred when it failed to allow Williams’ counsel to pursue questions to individual members of the panel in four instances. In the first, counsel asked a panel member if she were familiar with the term “presumption of innocence.” Counsel later inquired of a venireman: “Do you understand the State is required to prove the defendant is guilty beyond a reasonable doubt?” Again, counsel inquired of an individual: “Do you have any difficulty in presuming defendant to be innocent?” In the final instance, counsel inquired of an individual venireman if he knew all of the elements of the crime charged must be proven and started to inquire as to the consequences of the failure to prove any element when he was interrupted by an objection.

In each of the above incidents the court refused to allow the question to be answered because the court had already advised the jury concerning the presumption of innocence, the burden of proof resting with the State, and the necessity to prove guilt beyond reasonable doubt. Williams now contends the court abused its discretion in refusing to allow the veniremen to answer such questions.

“The trial court has considerable discretion in the control of voir dire examination and the appellate court will interfere only when the record shows a manifest abuse of that discretion.” State v. Mudgett, 531 S.W.2d 275, 279[2, 3] (Mo. banc 1975). In view of the fact the trial court had previously advised the jurors concerning presumption of innocence, burden of proof and reasonable doubt, and had inquired if any would be unable to follow this instruction and had received a negative response, it was not an abuse of discretion to refuse to allow Williams’ counsel to cover this same ground a second time. Furthermore, “the personal feelings of the veniremen for or against the rules referred to were immaterial unless with respect to those rulings they entertained views so unyielding as to preclude them from following the law under the court’s instructions.” State v. Smith, 422 S.W.2d 50, 68 (Mo. banc 1967). Counsel gave no indication he was seeking to develop whether or not the individual veniremen entertained unyielding views which would prevent the application of the court’s instruction to them. No question is raised as to any limitation on counsel’s individual questioning. This phase of the examination covers about 75 pages in the record and discloses a full examination of each panel member. The court did not abuse its discretion in refusing to allow counsel to repeat the court’s questions and the rules pertaining to burden of proof, presumption of innocence and reasonable doubt.

Williams next contends the State did not establish the requisite foundation for admission of Williams’ taped admission. Williams correctly states that the Supreme Court in State v. Spica, 389 S.W.2d 35, 44 (Mo.1965) adopted a seven-point test to govern the admissibility of sound recordings in evidence. Of the seven elements to be considered, Williams complains that number 4, “a showing that changes, additions or deletions have not been made” was not met in this case and by reason thereof, the third element was not met which requires “establishment of the authenticity and correctness of the recording.” Williams bottoms his claim solely on the testimony of Sgt. George Payne of the State Highway Patrol. An investigator with the Cole County Prosecutor’s office was with Sgt. Payne when the tape recording was made. Sgt. Payne stated he operated the recorder. Near the beginning of the tape, the investigator stated the time waá 11:23 a.m. A notation was made that the recorder was turned off at 12:07 p.m. This would, of course, mean the tape ran 44 minutes. At the request of Williams’ counsel, the recording was played a second time in court after it was admitted in evidence for the purpose of timing the length it ran. When timed, the tape ran 36 minutes and 15 seconds.

Sgt. Payne stated the beginning time was noted by use of a clock on the wall and the ending time was noted from his own wrist watch. He further stated the time noted as the beginning time was not actually the time at which the recorded admission of Williams began, but was the time at which Williams was asked to sign a waiver of his constitutional rights and the actual questioning did not begin for several minutes thereafter. Beyond those factors, Sgt. Payne stated he could not explain the discrepancy between the time noted and the actual running time of the tape. However, Sgt. Payne stated that no changes, additions or deletions had been made in the tape and the recorder had not been shut off from the time it was turned on at the beginning of the statement until its completion. He stated the tape as played in court was authentic and correct. He identified the voice of Williams and the other voices audible on the tape.

Williams does not point to any evidence to show that any change, addition or deletion has been made in the tape, but contends only the time discrepancy alone demonstrates some change had been made in the tape. In view of the testimony of Sgt. Payne, it cannot be said the State failed to prove the seven elements required in Spica to show the admissibility of this tape. Williams does not point to any evidence to demonstrate any change had been made and the discrepancy in time was adequately explained by Sgt. Payne to overcome that objection.

Williams lastly contends the court erred in excusing one of the regular jurors and seating an alternate as a regular juror prior to the end of the trial. This resulted when the court became aware that one of the jurors was under the age of 21. Williams founds his argument on §§ 494.050 and 494.065, RSMo 1969. The first section provides no exception to a juror on account of his age shall be allowed after the juror is sworn. The latter section provides an alternate juror shall replace a juror who becomes unable or disqualified to perform his duties prior to the time the jury retires. Williams argues the underage juror did not become unable or disqualified after the jury was sworn, but his disability existed from the very beginning of the trial. He draws the conclusion the court was not authorized under the mentioned sections to excuse the regular juror and to seat the alternate. Williams makes no effort to demonstrate any prejudice flowing from the action of the court. In State v. Reynolds, 422 S.W.2d 278, 284[9] (Mo.1967) the court held the burden to demonstrate prejudicial error in the seating of an alternate juror had not been met and refused to grant relief. In this case, in the absence of any showing of prejudice to Williams in the seating of the alternate juror, no relief can be granted.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: SHANGLER, Presiding Judge.

license: Public Domain

text:
    Arthur J. FORSYTHE, Appellant, v. Charline M. FORSYTHE, Respondent.
    No. KCD 28560.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 29, 1977.
    Application to Transfer Denied Oct. 11, 1977.

      P. Wayne Kuhlman, Liberty, for appellant.
    Alvin D. Shapiro, Stinson, Mag, Thompson, McEvers & Fizzell, Kansas City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The decree of dissolution of marriage awarded custody of the two unemancipated children to the wife, awarded her $300 a month for their support, apportioned the property, and denied maintenance.

The parties married while at college. She soon became gravid, discontinued school attendance, and made the home for the family while the husband pursued a career. After twenty-five years, they separated. The husband has become budget director for Trans World Airlines and earns $30,000. The wife is without essential employment skill and attempts work as a travel consultant. She is paid on commission and has earned some $300 in five months. The husband has attended to the family finances throughout the marriage. The wife has lacked aptness even to balance a checkbook.

The funds which came into the marriage were managed by the husband, who invested them and otherwise directed the wife as to the disposition to be made. The couple amassed numerous stocks, some real estate and a residence. The source for much of this property was a conveyance of land by gift from the Thrustons, parents of the wife, to the parties as husband and wife. The land was sold and the proceeds invested in securities registered to them jointly. The court set these assets apart as the sole property of the wife. On this appeal the husband claims as his salient point that § 452.330 requires the court to treat a gift to both husband and wife as marital property subject to division on dissolution of marriage. We agree.

The question is determined by the provisions and intendments of § 452.330, RSMo 1975 Supp.:

1. In a proceeding for . dissolution of the marriage . . . the court shall set apart to each spouse his property and shall divide the marital property .
2. For purposes of sections 452.300 to 452.415 only, “marital property” means all property acquired by either spouse subsequent to the marriage except:
(1) Property acquired by gift, bequest, devise or descent;
3.All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of coownership . . . The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2. [Emphasis added.]

Section 452.330.3 presumes that all property acquired during the marriage is marital property and provides that one of the ways the presumption may be overcome is to show that the asset was acquired by gift by either spouse under § 452.330.2(1). A gift to both spouses does not fall within the literal ambient of that statute, so the question remains whether the integral Dissolution of Marriage Act [§§ 452.300 to 452.415] intends that such a joint gift shall also be excepted or shall be presumed marital property and so subject to division.

The property division provisions of the integral Act bring two new concepts to our law: the right of each spouse to an equitable share of the marital assets and the power of the court to make such a division.

At common law the marriage gave rise to no property rights by virtue of the marriage itself. The law treated the wife as a chatelaine whose role was without economic function. Also, in the absence of statute, the courts had no power to order the transfer or division of property. Krauskopf, Division of Property, 41 Mo. LR 165 (1976). The express provisions of § 452.330.1(1) which attributes economic value to the contribution of a spouse as homemaker and of § 452.330.1 which empowers a court to divide the marital property abrogate these common law postulates. Thus, the integral Act treats the marriage as an enterprise between partners, each entitled to a fair share of the family assets, however disparate the efforts which contributed to their prosperity. Corder v. Corder, 546 S.W.2d 798, 803[3] (Mo.App.1977). And to give effect to this purpose, the Act invests the court with power to make the division.

A gift of property to the spouses jointly, of course, is not a product of their industry, but it does come to them in the marriage relation and creates a title by the entirety which — unless the Act empowers a court to divide — requires an additional judicial procedure for severance. Holt v. Myers, 494 S.W.2d 430, 444[18,19] (Mo.App.1973); 41 Am.Jur.2d Husband and Wife, § 57. Prior to the enactment of § 452.330, upon divorce the parties became tenants in common as to all property held by the entirety during the marriage; hence, a separate partition suit was needed to finally determine the property interest of each spouse. Allan v. Allan, 364 S.W.2d 578, 582[10, 11] (Mo.1963). One purpose of that enactment was to eliminate the need for this “unsatisfactory half-remedy of partition” upon dissolution [Fowler and Kraus-kopf, 29 J. of Mo. Bar 508 (1973)] and to relieve the parties from further litigation to sever altogether the property relations between them. Corder v. Corder, supra, l.c. 804[4, 5].

The purpose of § 452.330.3 is to treat as marital property all assets acquired during the marriage ■ by the industry of either spouse. The purpose of § 452.330.2 which by mention exempts from division only a gift to either spouse is to treat as marital property a gift to both spouses. From this we conclude that the integral Act intends for the court to divide and settle title to all property which has come to the spouses by virtue of the marriage relation.

It is the contention of the wife, however, that although the five acres were conveyed by her parents to the names of herself and her husband jointly, the gift was intended for her alone. Ordinarily, in the absence of ambiguity, the language of the deed controls as to the intent of the grantor. Wolf v. Miravalle, 372 S.W.2d 28, 34[4, 5] (Mo.1963). Section 452.330.3 departs from this general rule and authorizes a court to look behind the deed of a property acquired during the marriage [and so presumptively marital property] to determine if it was acquired by a method listed in § 452.330.2 [e.g. as by a gift to either spouse] and so exempt from division. Therefore, this statute authorized the wife to adduce evidence to overcome the marital property presumption. In this case, however, her proof had to surmount yet another presumption: that a conveyance to a husband and wife results in a joint ownership by the entirety. Gibson v. Zimmerman, 12 Mo. 385, 387 (1949). That is to say, for the wife to fall within the gift exception of the statute and thus overcome the marital property presumption, she had first to overcome the presumption of joint ownership created by the language of the deed — and that by clear and convincing evidence that the conveyance was intended for her title alone. Conrad v. Bowers, 533 S.W.2d 614, 621[11-13] (Mo.App.1975).

The proof on the issue did not satisfy that standard. Only the wife gave evidence. The parties were married in 1950. The wife was an only child, and the four children of the marriage became the only grandchildren to the Thrustons, her parents, now deceased. Her parents lived on a ten acre tract. In 1966, her parents — on the recited consideration of one dollar, love and affection —conveyed five of those acres to their daughter and her husband in the marital relation. At the time of conveyance the land was intended for a family home, but soon it became more valuable as a commercial use and the entire ten acres were sold for $300,000. The husband managed the transaction as well as the proceeds which derived to them from the sale. He invested the $150,000 in stocks and bonds taken in their joint names because, the wife testified, that was the way they usually did everything. She also testified that she intended to pass these assets to her children.

The contention of the wife reduces to the argument that the name of her husband was placed on the deed only because he managed all business affairs of the family. She makes much of the failure of her husband to testify and emphasizes that she was an only child. We hold, however, that as a matter of law the evidence was not sufficient to contradict the plain language of the deed and the common law presumption that the conveyance to the husband and wife jointly created a whole estate in them as one person. This conclusion is confirmed by her testimony that the property was intended for their family home, that she made no effort to treat the conveyance as her separate property during the marriage, and that the proceeds from the sale were shared by both spouses.

We touch another contention by the husband, but only to correct an obvious mischance. To support his argument that the real estate conveyance and proceeds were marital property, the husband points to a bank deposit in which the wife deposited funds to their joint names. The husband asserts that the wife gave evidence that money from the sale of the five acres was placed in that joint account and that her explanation that she did not intend to make a gift to him of that money could not be received to contradict the joint tenure. There is no such evidence. The transcript references for this argument have nothing to do with the sale of the acreage, but rather with other funds received by the wife from two inheritances — one from her mother and the other from a friend — and used to purchase a new family home. The husband never claimed any interest in the two legacies, but as shown by an exhibit in his own hand, always treated the inheritances as the separate property of the wife. He does not contest the order of the court which adopts his concession and sets over to the wife as her own asset her contribution to the purchase of the jointly held residence.

The determination by the trial court that the conveyance was meant as a gift to the wife alone was erroneous. We conclude, rather, that the property was acquired by gift by both spouses jointly, and as such is subject to division as marital property under § 452.330. The wife also made claim for maintenance, but was denied by the trial court. Since the value of the marital property apportioned to the spouse who claims maintenance is a relevant factor to that determination [452.335.-2(1)], that issue also requires consideration.

Accordingly, the cause is reversed and remanded for redetermination of division of marital property and reconsideration of maintenance.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Hazel GARRETT, Appellant, v. STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE, Respondent.
    No. KCD 28723.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 29, 1977.
    Application to Transfer Denied Oct. 11, 1977.

      James L. Muller, Dwayne W. McConnell, Effie F. Day, The Legal Aid and Defender, Society of Greater Kansas City, Inc., Kansas City, for appellant.
    Robert R. Northcutt, Chief Counsel, Paul T. Keller, Senior Counsel, Missouri Division of Family Services, Jefferson City, for respondent.
    Before SHANGLER, P. J„ and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of Circuit Court affirming decision of Director of State Department of Public Health and Welfare, denying relief to claimant whose grant of aid to the permanently and totally disabled had been reduced.

In May, 1971, Hazel J. Garrett, then 64 years of age, was receiving a grant of aid of $80 per month under the program for assistance to the permanently and totally disabled. This grant was premised upon a public assistance budget showing a total expense of $237, budgetable income of $138.50, leaving a deficit of $98.50, resulting in her receipt of the maximum $80 per month grant under the program. § 208.-150(2), RSMo 1969.

In May, 1971, the Division of Welfare promulgated Rule 59, fixing a monthly standard budget for medical expenses of $12 per month for permanent and total disability claimants. The standard allowance also applied to recipients of old age assistance, general assistance and aid to the blind. Budgets for aid to dependent children recipients were to be based upon actual costs of medical care.

Following promulgation of the rule, the Division, in July, 1971, prepared an adjusted budget for Ms. Garrett in which the standard medical expense of $12 was used, with the result that she was shown to have had a deficit of $51.20, resulting in a grant to her of $51 per month.

Upon being notified of the reduction, Ms. Garrett filed an application for a hearing before the Director of the Department, attacking the procedure by which Rule 59 had been adopted and also contending that the rule was contrary to state and federal law.

A hearing was held before a referee in September, 1971. The claimant presented the budget documents prepared before and after the application of Rule 59. It was agreed that Ms. Garrett had shown, to the satisfaction of the Division of Welfare, “an unmet medical need of $59” and that there had been no change in her circumstances at the time of the hearing. The claimant also produced a letter from the Director of the Division of Welfare, explaining the reasoning behind the adoption of the Rule.

No other evidence was presented at the hearing.

The Director concluded that the budget prepared for the claimant had allowed all items that were proper and that under the current rules and procedures of the Division of Welfare she was receiving the most that could be allowed her. He further found: “The use of standard items of expense is authorized by Section 208.010 RSMo. See Thornsberry v. State Department of Public Health and Welfare (1956), 365 Mo. 1217, 295 S.W.2d 372.”

The claimant filed her appeal in the Clay County Circuit Court. The appeal was not called up for hearing in that court until late in 1975 when the cause was submitted on memoranda. The Circuit Court affirmed the Director’s decision. This appeal followed.

In this court, appellant asserts as one point, the unconstitutionality of Rule 59 on the grounds that it violates the Equal Protection clause of the 14th Amendment to the Constitution of the United States. In her request for hearing, basically the only pleading in the case, the claimant did assert constitutional questions arising out of the procedure whereby the rule had been adopted. That claim has not been preserved on appeal. Inasmuch as the claim now asserted was not advanced in the request for hearing, in which she did raise constitutional questions, the question now attempted to be presented has not been preserved because it was not raised at the earliest possible time. Therefore, this court has jurisdiction of the appeal.

Appellant’s primary contention is that Section 208.010, RSMo 1969, in effect at the time of the adoption of Rule 59, required that a welfare recipient be provided with medical assistance in accordance with his particular, individual need for medical care, and that in her situation, the $12 monthly expense standard is arbitrary and unreasonable and beyond the authority of the Division of Welfare to adopt.

Pertinent provisions of Section 208.010, RSMo 1969, as it read at the time here involved were:

“1. In determining the eligibility of a claimant for public assistance under this law, it shall be the duty of the division of welfare to consider and take into account all facts and circumstances surrounding the claimant, including his living conditions, earning capacity, income and resources, from whatever source received, and if from all the facts and circumstances the claimant is not found to be in need, assistance shall be denied. In determining the need of a claimant, the costs of providing medical treatment which may be furnished under sections 208.151 to 208.158 shall be disregarded. The amount of benefits, when added to all other income, resources, support, and maintenance, shall provide such persons with reasonable subsistence compatible with decency and health in accordance with the standards developed by the division of welfare * * *. In determining the need of a claimant in federally aided programs there shall be disregarded five dollars per month of any income *

In Thornsberry, the court held that the language “ ‘in accordance with standards developed by the Division of Welfare’ * * unquestionably provides the authority to develop and use reasonable standards for some usual essential expense items such as food and clothing.” 295 S.W.2d at 374.

Appellant argues that the court approved the use of standards for only “usual” expenses and that the court did not approve the use of standards for unusual expense items “such as the special need for necessary medical care which varies materially from individual to individual * * *.”

In Thornsberry, the court did conclude that some standards adopted by the Division were unreasonable. It adopted the conclusion of the Court of Appeals in the same case that “ * * it is a matter of common knowledge that $.50 per month is insufficient to supply even the barest needs of a high school student.” Thornsberry v. State Dept. of Public Health & Welfare, 285 S.W.2d 77, 86, Mo.App. ($0.50 per month was the standard for the expenses of children attending school.) The Supreme Court rejected the standard shelter allowance because it did not include any allowance for repairs and maintenance.

The basis for the rejection of the standards in that case was the unreasonableness of the standards in question.

In this case, the claimant, at the hearing before the referee, placed in evidence a letter from the Director of the Division of Welfare, dated May 27, 1971, explaining to the Associate Regional Commissioner of the Department of Health, Education and Welfare, the reasoning behind the adoption of Rule 59. As explained in the letter, information pertaining to medical expenses had been found “almost impossible for the claimant to validly and accurately supply.” A study was made of 2790 sample cases for April, 1971, which showed that 11% of the sample had budgeted medical expenses, with a median amount of costs of $11.00. “Any practical application of a budget standard results in increasing need figures in some cases while decreasing need in others. Our choice of a twelve dollar standard would reduce the total need determination in slightly less than one-half the cases with formerly budgeted medical costs and preserve or increase the level of need applied to the remaining cases.”

On this evidence, this court cannot conclude that the standard fixed by the Division was neither for a usual expense nor unreasonable within the Thornsberry ruling.

Appellant’s argument is basically that the Director had no right to adopt a standard for medical expenses because the statute requires him to consider the individual circumstances of each applicant. The provisions of Section 208.010 are the same as those existing at the time of Thornsberry, and the court there concluded that the amendment authorizing the use of standards was adequate authority for the director to do so.

The Court of Appeals in Thornsber-ry spoke of a requirement of “flexibility” in standards. 285 S.W.2d at 86[7], The case was subsequently transferred to the Supreme Court for determination “as on original appeal” (Const, of Mo. 1945, Art. V. § 10), so that the opinion of the Court of Appeals, except insofar as recognized by the Supreme Court in its determination of the ease, as above noted, is of no preceden-tial effect. State v. Norman, 380 S.W.2d 406 407[1, 2] (Mo.Sup.1964).

The fact that the applicant here had medical expense in excess of the $12 allowance does not, standing alone, demonstrate the unreasonableness of the standard or deprive the Director of authority to adopt such a standard. Of necessity a standard cannot cover actual requirement in every case. If the standard is to be ignored when actual expenditures are shown to exceed the standard, the standard becomes meaningless and the authority which has been granted would be a nullity. Furthermore the adequacy of the standard amount must be viewed in the light of benefits under the medicaid program extended to recipients of aid to the permanently and totally disabled. §§ 208.151-208.158, RSMo 1969.

Appellant states that the case of Clark v. New Hampshire Dept. of Health & Welfare, 114 N.H. 99, 315 A.2d 187 (1974), is “directly in point on the facts here.” In that case, the court held that administrative adoption of a “flat grant” program for aid to dependent children recipients was contrary to a statutory scheme which the court found to require a “case-by-case determination of the level of assistance necessary to provide reasonable subsistence compatible with decency and health.” 315 A.2d at 190. However, that case did not consider the meaning and effect of statutory language authorizing standards, as found in the Missouri law. In that regard, this court is bound to follow the Thornsberry case.

Appellant also cites and relies upon Rosado v. Wyman, 397 U.S. 397, 90 S.Ct.1207, 25 L.Ed.2d 442 (1970), and Shea v. Vialpando, 416 U.S. 251, 94 S.Ct. 1746, 40 L.Ed.2d 120 (1974). Those cases involved construction and application of federal statutes restricting state controls of programs for aid to dependent children. No suggestion has been made in this case that a federal statute is involved which would affect the validity of the regulation under attack.

Appellant has not shown that the decision appealed from was arbitrary or unreasonable (§ 208.100 5, RSMo 1969) or that it was unauthorized by law (§ 536.140 2, RSMo 1969). Therefore, the judgment of the circuit court is affirmed.

Judgment affirmed.

All concur.


author: WEIER, Judge.

text:
    OASIS CAR WASH, INC., et al., Plaintiffs, v. FIRST NORTH COUNTY BANK, etc., et al., Defendants-Respondents, and Rina Pizzurro, Defendant-Appellant.
    Nos. 36763 and 38524.
    Missouri Court of Appeals, St, Louis District, Division Three.
    July 26, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.
    Application to Transfer Denied Oct. 11, 1977.

      W. W. Sleater, Clayton, for defendant-appellant.
    Thompson & Mitchell, Charles A. Newman, David Wells, Vincent M. Flynn, John R. Parres, St. Louis, Coleman, Ross, Goetz & Schaaf, Clayton, for defendants-respondents.
   WEIER, Judge.

Appellant Rina Pizzurro appeals, in two cases consolidated by this court, from trial court action appointing a receiver for corporations partly owned by her and making other rulings concerning payments made and accountings filed by the receiver. Except for one portion of the first appeal questioning a trial court order denying appellant’s motion for damages on the injunction bond, we have no jurisdiction of the appeals.

Vito and Rina Pizzurro, formerly husband and wife, owned an automatic car wash establishment. They formed a corporation named Oasis Car Wash, Inc., and leased the car wash premises to the corporation. Oasis Oil Company, Inc., wholly owned by Oasis Car Wash, Inc., subleased part of the premises from the car wash corporation. The business was profitable and apparently ran smoothly for some time. However, when marital relations between Vito and Rina broke down, so did the amicable business arrangement. Vito and Rina resorted to the courts and sought to assert claims against each other, as well as others, in the name of the corporation. They were divorced during the long course of the present litigation. Vito and Rina settled all claims between themselves in the divorce decree but Rina reserved all her rights against other parties.

The first of the two cases consolidated on appeal (No. 36763) was commenced on March 6, 1971, by a petition filed by Vito and the two corporations against the First North County Bank and Trust Company and Rina praying for a restraining order and injunction to prevent Rina from writing checks as treasurer of the corporations. A restraining order and injunction were issued. Rina filed crossclaims and counterclaims seeking, among other things, the appointment of a temporary receiver penden-te lite and, upon a hearing on the merits, a liquidating receiver so that the assets of the corporations could be disbursed to the stockholders in proportion to their holdings. On October 21, 1971, John Hichew was appointed receiver pendente lite and given authority to manage and to delegate the management of the business. Numerous motions were filed and acted upon by various circuit court judges over the next three years. Several hearings were held to determine who should get how much of the assets by way of legal or receiver fees, damages or disbursement to the two stockholders, Vito and Rina. On September 12,1974, the circuit court issued extensive “Findings of Fact, Orders, Decree and Judgment” wherein the restraining order and injunction were dissolved, a request for permanent injunction was denied and Hichew was appointed liquidating receiver and ordered to liquidate the corporations. Rina’s motion for a new trial (which covers twenty-four pages of the transcript and contains forty-six points of alleged error) and her motion for damages on the injunction bond were denied by the trial court on December 20, 1974. Rina has attempted to appeal these actions to this court.

While this appeal was pending Rina filed a motion in this court to remand asserting that the order appealed from was not a final, appealable judgment in that the receiver had not completed his duties and various motions has been entertained by the trial court after the filing of the appeal. This motion was taken with the case.

The receiver died and a successor receiver, Vincent Flynn, was appointed by the trial court on May 3, 1976. A “Final Accounting” submitted on behalf of the deceased receiver Hichew was filed by a member of his former law firm. This accounting was approved on June 11, 1976. Rina’s motion to set aside approval of this accounting was overruled on September 13, 1976. Appellant has attempted to appeal from the orders entered June 11, 1976, and September 13, 1976. This is the second of the two consolidated appeals (No. 38524). An exhibit filed with Rina’s motion to consolidate the appeals indicates that the successor receiver Flynn filed a “Final Accounting” some time on or after October 1, 1976, which was subsequent to the trial court’s action from which Rina took her second appeal.

Whether appellant’s motion to remand should be granted is really a question of this court’s jurisdiction. Even if this issue had not been raised by appellant it would be our duty to consider it sua sponte, if necessary, to determine if we have jurisdiction to consider the case. Morris v. Patterson, 549 S.W.2d 613, 614 (Mo.App.1977).

The right of appeal is purely statutory. Bolin v. Farmers Alliance Mutual Insurance Co., 549 S.W.2d 886, 889[2] (Mo. banc 1977). • Section 512.020 RSMo 1969 allows appeals from various trial court actions including three situations which could apply here to give this court jurisdiction. The first of these is appeals from orders “refusing to revoke, modify, or change an interlocutory order appointing a receiver or receivers.” The second is appeals from orders “dissolving an injunction.” The third is appeals “from any final judgment in the case.”

Concerning the trial court’s refusal to modify an order appointing a receiver, the transcripts indicate that Rina filed a “Motion to Set Aside Order Appointing Receiver Pendente Lite . . .” The trial court overruled this motion on February 4, 1972. This action was appealable under Section 512.020, supra. Haley v. Horjul, Inc., 281 S.W.2d 832 (Mo.1955). But no post-judgment motion was filed and for purposes of ascertaining the time within which an appeal from this action could be taken, the order became final thirty days after it was entered. Rules 81.04 and 81.-05(a). An appeal filed later than ten days after the order became final would not be timely. Rule 81.04. The appeal in this case was filed almost three years after the trial court overruled the motion to set aside the order appointing the receiver. Hence, it was not timely. Our jurisdiction could not be invoked on this ground.

The trial court’s action dissolving the restraining order and injunction and refusing to grant a permanent injunction was appealable. Section 512.020 RSMo. 1969; State ex rel. Taylor v. Anderson, 362 Mo. 513, 242 S.W.2d 66, 70 (1951). But the party aggrieved by this action has not appealed. Appellant got what she requested and does not object to or appeal from this action. We do not have jurisdiction of the case on this ground.

We come to the question of whether the trial court action actually appealed from in either of these two cases is the “final judgment in the case.” Section 512.020 RSMo. 1969. “The general rule is that to be final and appealable, a judgment must dispose of all parties and all issues in the case and leave nothing for future determination, unless the trial court has ordered a separate trial of any claim or issue or has specifically designated the particular judgment as a final judgment for the purposes of appeal.” Caudle v. Kelley, 545 S.W.2d 427, 429[2] (Mo.App.1976).

In the recent case of Bolin v. Farmers Alliance Mutual Insurance Co., supra, the Supreme Court held that there was no final judgment where one trial court order sustained the first defendant’s motion for summary judgment (and the order recited that the ruling did not affect the rights of the second defendant) and a second court order sustained without prejudice the second defendant’s motion to dismiss as to her because even though the trial court had made disposition of all issues and all parties after the second order, the first interlocutory order was never converted into a final judgment in the case and it remained subject to change by the trial court at any time and the second order did not refer to or incorporate by reference the first and indicate it was a final adjudication. More generally, the court laid out some of the constituent elements of a final judgment at 891[4] as follows:

“The transcript on appeal should contain a final judgment, plainly constituting such. We should not approve an approach which makes it necessary for the appellate court to decide whether a resolution of the case as to one defendant makes the case moot as to the other, or which makes it necessary for the appellate court to piece and tack together various parts of the record, none of which purport to be a final judgment, and conclude therefrom that collectively they amount to a final judgment. This is not to say that a final judgment must have physically incorporated therein everything necessary to a conclusion that the court by this judgment has disposed of all issues and all parties.”

We consider the two cases consolidated in this appeal in light of the above authority.

In the first case consolidated on appeal (No. 36763) the trial court did not order separate trials or specifically designate its judgment as final for purposes of appeal. In fact the court in its order specifically reserved a ruling on the amount of additional fees that would be due the liquidating receiver at the conclusion of his liquidating the corporations. The court also refused to “make an Order at this time in regard to any additional fees [for the attorney acting on behalf of Vito and perhaps the corporations as well] coming from the assets of the two corporations.”

In addition to leaving these matters unresolved, the court ordered the liquidating receiver to “file an up-to-date accounting and to marshal the remaining assets of the corporations in order that this Court might bring this cause to a conclusion . so that the remaining assets of the corporation, if any, might be distributed to the only two stock holders, Rina Pizzurro and Vito Pizzurro, in equal shares.” It is clear that this judgment was not final and appealable. This case is similar to cases finding appeals to be premature when the “judgment” appealed from ordered an accounting and the accounting had not yet been completed. Proctor v. Jacobs, 472 S.W.2d 609 (Mo.1971); Anderson v. Metcalf, 300 S.W.2d 377, 378-79[5—7] (Mo.1957); Adams v. Adams, 294 S.W.2d 18, 21[5] (Mo.1956); Engel Sheet Metal Equipment, Inc. v. Shewman, 301 S.W.2d 856, 860[6] (Mo.App.1957). This order also fails as a final judgment because it is not “plainly” or “clearly” final. Bolin v. Farmers Alliance Mutual Insurance Co., supra at 891[4].

If this judgment had been final and a proper appeal had been taken therefrom, the trial court would have been powerless to exercise further judicial, as opposed to ministerial, functions. Brock v. Steward, 519 S.W.2d 365, 367[1] (Mo.App.1975). Because the ruling was not final, the trial court could, and in fact did, exercise further judicial functions. As noted above, the trial court appointed a successor receiver after the first receiver died. It also approved a “Pinal Accounting” submitted on behalf of the deceased receiver. The second case consolidated on appeal (No. 38524) is an appeal from this action as well as the trial court order overruling appellant’s motion to set aside approval of this accounting.

The problem facing us in this second appeal is similar to that in Bolin v. Farmers Alliance Mutual Insurance Co., supra. When the “Pinal Accounting” of the deceased receiver was approved by the trial court, a successor receiver had been appointed and was serving in that capacity. The order approving the alleged “Pinal Accounting” did not purport to be a final judgment because the successor receiver was still carrying out his duties in the continuing receivership. See 75 C.J.S. Receivers § 155, p. 796. Furthermore, for this court to determine if this order together with other numerous orders and rulings made throughout the course of this extended litigation, none of which purport to be a final judgment, collectively constitute a final judgment, would entail the kind of piecing and tacking together of various parts of the record which the Supreme Court specifically disapproved in Bolin v. Farmers Alliance Mutual Insurance Co., supra at 891[4].

This disposes of all of the second appeal and most of the first. But another order appealed from in the first case is the trial court’s order denying Rina’s motion for damages on the injunction bond. Proceedings to assess damages on an injunction bond are independent actions. J and P Trust v. Continental Plants Corp., 541 S.W.2d 22, 26[7] (Mo.App.1976); see also, Niemann v. Carps, Inc., 541 S.W.2d 712, 714 (Mo.App.1976). As such, a timely appeal may be taken from an order overruling a motion to assess damages on an injunction bond. See J and P Trust v. Continental Plants Corp., supra at 26-27. Such an appeal was taken in this case. On this issue appellant’s Point Relied On states, “The Circuit Court Erred in that it Failed to Assess Damages to Defendant Rina Pizzur-ro After Dissolving the Injunction.” This point violates Rule 84.04(d) because it fails to state “wherein and why” this action is claimed to be erroneous. The point fails to preserve anything for review. Plant v. State, 547 S.W.2d 835, 837[4] (Mo.App.1977).

The appeals are dismissed.

KELLY, P. J., and GUNN, J., concur.

      . It should be noted, however, that if the action actually appealed from is a final judgment then appellant may still raise the issue of the propriety of the trial court’s action in refusing to set aside the order appointing the receiver, even though no appeal was taken from that order within the prescribed time after it was made. Section 512.020 RSMo. 1969.


author: JOHN L. ANDERSON, Special Judge.

text:
    Adolph M. ROTERMUND, Plaintiff-Appellant, v. BASIC MATERIALS COMPANY, a Missouri Corporation, Defendant-Respondent.
    No. 37117.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 26, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.
    Application to Transfer Denied Oct. 11, 1977.

      James L. Sullivan, Sullivan & Evans, St. Louis, for plaintiff-appellant.
    Coburn, Croft, Shepherd & Herzog, Thomas L. Croft, John R. Musgrave, St. Louis, for defendant-respondent.
   JOHN L. ANDERSON, Special Judge.

Appellant, Adolph M. Rotermund, as plaintiff, commenced these proceedings in the Circuit Court of the City of St. Louis. Originally there were three counts and three defendants. These actions were removed by defendant, United States Steel Corporation, to the United States District Court where Counts I and II were adjudicated. Rotermund v. United States Steel Corp., 346 F.Supp. 69 (E.D.Mo.1972). Count III, however, was remanded to the state courts as it involved construction of the Missouri Service Letter Statute, § 290.140 RSMo.1969, i. e. whether the letter furnished to appellant complied with the purpose, intent, meaning and language of that statute, and for the further reason that diversity jurisdiction was not involved in that Count. Rotermund v. United States Steel Corp., supra. Count III was tried before a jury in the Circuit Court of the City of St. Louis between January 27th and January 31st, 1975. A motion for a directed verdict was filed at the close of plaintiffs case and denied by the court. The submission below resulted in a verdict in favor of appellant for damages in the sum of one hundred thousand dollars ($100,-000.00).

Thereafter respondent filed a motion for judgment in accordance with its earlier motion for directed verdict, or in the alternative, to amend the judgment to reduce it to one dollar ($1.00) or in the alternative, for a new trial. The trial court on April 30,1975, sustained the motion to amend judgment to one dollar ($1.00), set aside the jury verdict and entered judgment for that amount.

Appellant was employed by Basic Material Company (Respondent) on July 1, 1954 and continued in its employment until July 31, 1971, at which time he was discharged. On August 9, 1971, the board of directors removed appellant from the office of secretary to the corporation and the shareholders thereafter relieved him as a director.

Appellant’s duties with respondent were those of an accountant and assistant office manager. Appellant enjoyed a good working relationship with his employer and its management through nearly all of his seventeen years of employment. In 1965, Raymond Powell, president and managing officer of respondent, entered into a stock option purchase agreement with the United States Steel Corporation. By virtue of certain provisions of this agreement appellant, among others, became a third party beneficiary with U. S. Steel agreeing, upon the happening of certain well defined contingencies, to buy shares of stock subscribed by respondent and owned by appellant. This agreement was amended in 1968. For a more detailed discussion of the terms of these agreements see Rotermund v. United States Steel Corp., supra. In the spring of 1971 respondent was experiencing financial difficulties and was about to engage in delicate negotiations with one of its shareholders and principal creditors, U.S. Steel Corp., concerning a possible debt moratorium.

The stage thus set, appellant called upon U.S. Steel to purchase the stock owned by him that was the subject of the Powell-U.S. Steel agreement. Unbeknownst to the management of respondent appellant dispatched his attorney to Pittsburg to press his claim believing that he had rights under these agreements. Appellant threatened U.S. Steel with suit. Needless to say, appellant incurred considerable displeasure from respondent’s principal stockholder and president, Raymond Powell. Prior to pressing U.S. Steel appellant had attempted to reach an understanding with Powell regarding the purchase of appellants stock by him. These negotiations were fruitless.

The differences thus engendered culminated in appellant’s discharge. Appellant next requested a statutory service letter. Respondent replied on August 10, 1971, and that letter is the basis upon which the issue of liability was joined in this suit. Appellant contended that the service letter was deficient both as to its description of the nature and character of his services to respondent and the cause of his discharge. The issues upon which liability must be predicated were submitted by the trial judge and are not directly in issue on this appeal. For purposes of this review it is sufficient to say that appellant made his case on the issue of liability. Hence, we need not detail the letter or belabor eviden-tiary matter other than that pertaining to damages.

Following his discharge appellant sought other employment vigorously through numerous applications, but it is only with regard to one prospective employer, Edward T. Higgins (hereinafter referred to as Higgins), that we need exercise close scrutiny to determine if appellant proved actual substantial damage and supplied a reasonable basis from which a jury could calculate loss.

The submissibility of substantial actual damages rests entirely upon the testimony of Higgins. Higgins was not acquainted with appellant and appellant did not personally approach him seeking employment. Rather, appellant’s attorney, Mr. Sullivan, who had had a long association with Higgins asked him is he could help appellant in any way. Higgins responded that he could use a man of appellant’s caliber “because of the fact that we were having numerous reorganization at Slay’s” (Slay Industries) where Higgins was comptroller, and, “then, also, I had another accounting service.” Higgins indicated he needed someone. He testified that initially he and Sullvian talked generally about appellant’s capabilities, but that he would need an explanation for appellant’s termination by respondent. Later he would need more particulars after he saw the termination letter. Mr. Sullivan produced the service letter of August 10, 1971. Higgins testified that he formed “judgments both about appellant and the letter.” As to the letter, he testified he could find nothing particularly stating why appellant had been terminated and that he never did learn the cause. Higgins testified he could not use the letter to give to anybody for reference. Asked if he had positions available that would suit Mr. Roter-mund’s circumstances, background and education, Higgins replied: “Yes, I could have used him within dollar areas of maybe fifteen to twenty, twenty-five thousand, depending upon the client and the place I wanted to put him, because I had numerous clients that I still maintained contact with, even though I didn’t do the work.” Higgins then testified: “[T]he letter, as such indicated to me that I didn’t see any reason to spend my time or waste my time in looking at resumes of the man or anything else and I just said, well, let’s skip it, and I am not interested, I can’t use him.” Asked on cross examination if he had a specific job in mind Higgins replied: “Yes, I had; at the time, I, the one specific job I had was to take over the accounting business that I had left, to build that up and to give it better stature than the people that I had in there when I left.” The business referred to was known as Meyers-Higgins Company, and was a one man operation. Higgins stated that he was not going to replace the one man but “what we had in mind, we could have built, with proper people, we could have gone forward and built considerably more to it.” Higgins never employed anyone in this business on a salary basis. He did engage another person on a percentage basis, however. Higgins was asked if he would have offered appellant such a position on a percentage basis. He replied: “I would have offered it to him on a salary plus a percentage basis, which is not — I mean, it’s very normal as public accounting practice.” Higgins was then asked: “what would have been the offer you might have made Mr. Rotermund if you had made him one, by way of salary.” He answered: “I really couldn’t answer that question, because the only thing I saw was this, (apparently referring to the Service Letter) and then, after I saw that, why, that was it.”

Higgins was not familiar with the Missouri Service Letter statute or it’s requirements. His normal employment procedure was to request a resume and a letter of recommendation followed by a personal interview, spending at least a good day with a prospective employee. Higgins looked upon the service letter as a letter of recommendation and considered appellant’s unsatisfactory for that purpose. Higgins testified he forwarded letters of recommendation to prospective employers, but that he also used such letters for his own purposes.

Section 290.140 RSMo.1969, mandates that every corporation doing business in this state, upon a proper request, shall issue to every employee who leaves the corporation after ninety days employment, a service letter signed by either the superintendent or manager of the corporation. This statutory service letter must detail the duties performed by the employee, his length of service, and truly state the cause of termination. If the employer fails to provide a service letter or provides a letter that is deficient in one or more respects a cause of action accrues in favor of the employee. Nominal damages are recoverable upon a showing that plaintiff’s right to a letter was not complied with or that the letter was deficient under the requirements of the statute. If the evidence sustains a showing of either actual or legal malice punitive damages are recoverable. Schmidt v. Central Hardware Company, 516 S.W.2d 556 (Mo.App.1974); Bubke v. Allied Building Credits, Inc., 380 S.W.2d 516, 519, 521 (Mo.App.1964); Heuer v. John R. Thompson Co., 251 S.W.2d 980 (Mo.App.1952).

Liability being established nominal damages were recoverable. We must determine whether substantial actual damages were proved. A recovery of such is predicated upon a showing that appellant was either refused employment, or as here, that he was hindered in securing employment by reason of his not having a service letter in compliance with the statutory requirements. Schmidt v. Central Hardware Company, supra; Booth v. Quality Dairy Co., 393 S.W.2d 845, 848 (Mo.App.1965).

Commonly, actual damages are compensation for actual loss or injuries, Chappell v. City of Springfield, 423 S.W.2d 810, 814 (Mo.1968); State v. Shain, 341 Mo. 773, 108 S.W.2d 351, 356 (1937), and in statutory service letter cases damages must be susceptible of measurement. The pecuniary loss must be determinate and must be proved with reasonable certainty, rather than left to speculation. Warner v. Southwestern Bell Telephone Co., 428 S.W.2d 596, 604 (Mo.1968); Schmidt v. Central Hardware Company, supra.

Respondent provided an inadequate service letter and appellant claims substantial loss. To meet his burden of proof he must complete the causal chain and establish a reasonable basis from which his actual loss may be calculated. He may not recover for mere expectancies or speculative injuries, but must prove determinable and measurable damages. Such damages are ascertainable in service letter cases by showing, (1) the approximate date when an employee was either refused employment or hindered, i. e., his application was unacceptable because of an inadequate service letter or no such letter; and, (2) the salary rate of a job that in fact exists with the prospective employer who has turned him away. Schmidt v. Central Hardware Company, supra. Appellant has failed to make either showing. First, he fixes the time of refusal or hindrance, with no more specificity than “fall” of 1971. The damage differential for a period of this length could under circumstances of high earning power, such as we have here, encompass several thousands of dollars. If plaintiff in such circumstances were to elect the last day of fall as the point of refusal or hindrance no injustice could result, but to grant the jury a commission to pick and chose any day could very well result in an unwarranted award rather than a just recompense to appellant. We hold that to recover plaintiff must establish the date of injury with more certainty than he has done here or make the suggested election.

Secondly, we are compelled to conclude that appellant did not sustain his burden of establishing a “salary rate” or, for that matter, the existence of a definite job available to him. In reaching this conclusion we view the evidence in the light most favorable to appellant and give him the benefit of all reasonable inferences to be drawn therefrom disregarding respondent’s favorable evidence. Bubke v. Allied Building Credits, Inc., supra.

We have reviewed the deposition testimony of prospective employer Edward T. Higgins with the above rule in mind and have concluded that a job available to appellant had not really come into existence. No job was advertised. No formal application was made. No definitive description of services or duties was given. No hours were suggested. No definite salary was offered or included. The whole tenor of Higgins’ testimony tends to support the conclusion that the Sullivan-Higgins conversation about appellant was at best exploratory. Higgins was contemplating a change in Meyers-Higgins Company — a change that he never made. As an alternative to potential employment with Meyers-Higgins, Higgins might, if he so chose, refer appellant to one of his “clients.” But Higgins under these circumstances would be little more than a broker. The client would be the prospective employer with the ultimate decisional authority to hire or not and to set a salary.

It is not entirely clear from the evidence whether the testimony of a salary rate of “Maybe fifteen to twenty, twenty-five thousand” referred to client placements, though that appears to be the case, or whether it refers to employment by Higgins. Even if we were not left to speculate who was to be the prospective employer, the salary differential, like the time differential, was substantial and contingent on other factors. When pinned down on cross examination Higgins readily admitted he was not in a position to make an offer. The matter had not sufficiently ripened.

Careful analysis impels us to the conclusion that appellant is in much the same situation as Mrs. Schmidt in Schmidt v. Central Hardware Company, supra. Appellant, like her, was denied the opportunity of filing an application or pursuing a potential job opportunity beyond the initial contact. Under more propitious circumstances this opportunity might have resulted in further negotiations and ultimately ripened into an employment contract. We cannot say without engaging in speculation that further and seemingly necessary negotiations would have resulted in a job. There is little doubt that appellant suffered actual damages, but there simply is not sufficient evidence from which a jury could measure the actual loss, absent speculation, conjecture and guesswork.

There remains only the question of whether the trial judge properly cured the erroneous submission by amending the judgment and in effect allowing only the nominal damages. We believe he did. Appellant contends that the trial court was without authority to set aside the jury verdict. Appellant seems to fasten his argument on a theory that the trial court’s action was an invasion of the province of the jury and an attempt by the trial court to substitute its assessment of damages for that of the jury. It is clear that where a trial court does substitute its own assessment as to the amount of recovery the judgment so entered is without authority and void. Jaeger v. Agnew, 252 S.W.2d 847 (Mo.App.1952). It is also true that the authority of a jury to assess damages is statutorily decreed. § 510.270 RSMo.1969. However, the proposition that the measure of damages is solely within the province of the jury begs the initial question of whether, as a matter of law, the issue of damages may be presented to the jury at all. It is that question which must be first put. It is the trial judge’s duty to make a determination of the sufficiency of proof as a matter of law, and, if in the performance of this judicial function he determines that the evidence is not sufficient, there is nothing for the jury to decide. Insurance, Inc. v. Sanders, 378 S.W.2d 249, 254 (Mo.App.1964). A verdict is the decision of the jury upon an issue or fact submitted to them, and if there be no issue of fact as to the amount, there is nothing, in that regard, for the jury to decide. Home Trust v. Josephson, 339 Mo. 170, 95 S.W.2d 1148, 1155 (banc 1936); Schmidt v. Central Hardware Company, supra.

As a further attack upon the actions of the trial judge appellant contends:

“The amendment of the jury verdict by the trial court violated Rule 72.01 of the Missouri Supreme Court Rules.”

This assignment of error is in violation of Rule 84.04(d) as an abstract declaration of law. Bonds v. City of Webster Groves, 432 S.W.2d 777, 783 (Mo.App.1968). Simply stating errors without also specifying why they are errors neither complies with Rule 84.04 nor preserves anything for review. State ex rel. State Highway Commission v. Heim, 483 S.W.2d 410, 415 (Mo.App.1972).

Notwithstanding the insufficiency of the assignment we find nothing in Rule 72.01 which would preclude the rectifying action of the trial judge.

Appellant states that by amending the judgment to one dollar the trial court, in effect, granted respondent’s motion for a directed verdict on the issue of damages which had previously been denied. Appellant urges that in so doing the court has contradicted itself. We conclude the court merely corrected itself. Such action is consonant with sound post trial practice, the primary purpose of which is to apprise the trial court of its errors thus giving it the first opportunity to correct any deficiencies. The trial judge here properly anticipated our concurrence.

Judgment affirmed.

KELLY, P. J., and GUNN, J., concur.


author: GUNN, Judge.

text:
    Howard PULLIAM, Jr., et al., Plaintiffs-Respondents, v. McDONNELL DOUGLAS CORPORATION, Defendant-Appellant.
    No. 38162.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 26, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.
    Application to Transfer Denied Oct. 11, 1977.

      Evans & Dixon, Edward W. Warner, Raymond J. Flunker, St. Louis, for defendant-appellant.

      Padberg, McSweeney & Slater, R. J. Slater, St. Louis, for plaintiffs-respondents.
   GUNN, Judge.

Howard Pulliam was struck by a Norfolk and Western Railroad Company freight train as he was walking between his home and place of employment at the McDonnell Douglas Corporation. Plaintiffs-respondents, as Pulliam’s surviving dependent children and former wife, filed claim for death benefits under § 287.240 RSMo. 1969. The referee’s award denied compensation. On application for review of the referee’s award, the Missouri Industrial Commission found that Pulliam’s death arose out of and in the course of his employment and awarded death benefits to plaintiffs. McDonnell Douglas appealed to the circuit court, and the Commission’s award was affirmed; hence, this appeal by McDonnell Douglas.

The controlling issue on this appeal is whether, for the purpose of awarding workmen’s compensation death benefits, the McDonnell Douglas premises extended to the main line railroad track upon which Pulliam was killed. We find that the premises were not so extended and reverse the award of benefits to plaintiffs.

McDonnell Douglas, where Pulliam worked, employed about 26,000 persons at the time of Pulliam’s accident. For security measures, the McDonnell Douglas industrial complex is surrounded by a high cyclone fence with numbered gates interspersed to allow access to and from the facilities. On the day of his accident Pul-liam, who lived in a trailer court a short distance from McDonnell Douglas, was heading in the direction of gate 44A adjacent to Banshee Road when he was struck and killed by a freight train on the main line track of the Norfolk and Western Railroad Company. From the referee’s report, which we find to contain an accurate factual statement, we follow the route which Pulliam took to work on the date of his fatal accident:

“The employee [Pulliam] lived in a trailer court within [a] triangular-shaped residential area to the north of the railroad right-of-way and Banshee Road. On the date of the accident he had left his home to go to work at about 3:35 in the afternoon and had walked a couple of blocks south on Summit Avenue. When he came to the end of Summit Avenue at the railway right-of-way he crossed a small ditch and ascended a slight hill up on to the railway right-of-way. He then crossed either one or two of the northern main Norfolk and Western line. He then proceeded south about ten feet or less, and walked into the side of a moving eastbound Norfolk and Western train on the southernmost of the two Norfolk and Western main tracks. Had he not been fatally injured at this point, his path would have taken him to the southern boundary of the railway right-of-way where he would have descended a fairly-steep path some eight feet down to Banshee Road. He would have crossed Banshee Road and would have gone into gate 44A.
The path leading down from the right-of-way to Banshee Road is one which has obviously been worn by many years of foot traffic. It would be impassable in bad weather, except for a moderate amount of railroad gravel or ballast which covers it. It is obvious that this path has not been constructed, improved or maintained by anybody but is a path worn by pedestrian traffic taking a shortcut between McDonnell gate 44A and the residential area to the north of the tracks. In spite of the fact that there are thousands of employees at McDonnell Douglas, only a relatively small number of people would use this shortcut at any given time. These users would include a few residents of the nearby residential area, a few pedestrians who might have parked their cars in that area, or a few people heading toward the filling stations and bars that are on Lindbergh [Blvd.], some three blocks north of the railway right-of-way.”

The following is a graphic portrayal of the accident site showing the route Pulliam was taking to work:

While certain other gates providing access for the McDonnell Douglas facilities along Banshee Road had uniformed guards operating electric traffic controls for traffic across Banshee Road, there was no traffic control signal for gate 44A. Nor was there any cross walk indicated across Banshee Road for pedestrian traffic to cross over for ingress and egress to gate 44A. Gate 48, about 400 feet west of gate 44A, had traffic control signals operated by company guards. East of the accident site, where McDonnell Douglas’ property extends to both sides on Banshee, an overpass and underpass provide access between the McDonnell Douglas property separated by Banshee permitting pedestrian traffic to travel across Banshee Road without being exposed to the hazards of vehicular traffic. There was no indication that pedestrian traffic was to cross Banshee Road to utilize gate 44A in contrast to certain other gates along the road where there were traffic control signals such as at gate 48 or an overpass or underpass.

There was no evidence to suggest that McDonnell Douglas had any right of control or could interfere with the use of the Norfolk and Western’s right-of-way or adjoining property, particularly the residential area in which Pulliam lived or along the route he took to work. It is readily apparent that there was not much that McDonnell Douglas could have done to prevent Pulliam from taking the route he took or from crossing over the railroad main line track on which he was killed. Obviously, a string of parked railroad cars, a fossett and other obstacles did not provide a sufficient barrier, as Pulliam made his way by either crawling under, over or through the parked railroad cars to meet his appointment with death. It is doubtful if any kind of revetment would have sufficiently impeded his forward movement.

Relying particularly on Hunt v. Allis Chalmers Manufacturing Co., 445 S.W.2d 400 (Mo.App.1969); Bountiful Brick Co. v. Giles, 276 U.S. 154, 48 S.Ct. 221, 72 L.Ed. 507 (1928), and Cudahy Packing Co. v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366 (1923), the Industrial Commission applied the rule of extension of premises to encompass the Norfolk and Western main line track on which Pulliam was killed. The Commission found that the hazard Pul-liam encountered traveling over the railroad tracks to and from work was a risk incident to employment. In so finding, the Commission considered: 1) that the railroad spur line track from the main line entered into McDonnell Douglas property; 2) the location of the gates along Banshee Road and traffic control arrangements for pedestrian traffic across Banshee; 3) that the location of gate 44A across Banshee Road from a foot path offered open invitation to workers to walk across the railroad tracks by use of the foot path; 4) that the use of the foot path by employees was known and permitted without remonstrance, although such use could have been prohibited by the exercise of municipal police power over Banshee Road delegated to the security guards.

The circuit court, relying on Hunt v. Allis Chalmers Manufacturing Co., supra, affirmed the Commission’s award.

We first indite a few legal precepts which guide our review of Industrial Commission rulings. As succinctly stated in Webb v. Norbert Marking Construction Co., 522 S.W.2d 611, 614 (Mo.App.1975):

“[T]his court must determine if the award of the Commission is supported by competent and substantial evidence upon the whole record, Mo.Const. Art. V, § 22, Y.A.M.S., and all of the evidence and legitimate inferences arising therefrom must be viewed in the light most favorable to the award. We are not at liberty to substitute our own judgment for that of the Commission and may set aside an award only if there is not substantial competent evidence to support the award or if the findings of the Commission are clearly contrary to the overwhelming weight of the evidence.”

See also Lindquist v. Container Corporation of America, 537 S.W.2d 676 (Mo.App.1976); Snider v. Green Quarries, Inc., 535 S.W.2d 274 (Mo.App.1976); Homan v. American Can Co., 535 S.W.2d 574 (Mo.App.1976). We are required to review the whole record and reverse or modify awards which are not based on competent and substantial evidence and when such awards could not have reasonably been made. Duncan v. A.P. Green Refractories Co., 522 S.W.2d 639 (Mo.App.1975). We, of course, review the award of the Commission and not the referee’s award. Begey v. Parkhill Trucking Co., 546 S.W.2d 529 (Mo.App.1977).

Plaintiffs bottom their right of recovery on § 287.120(1), which subjects the employer to liability for an employee’s injury or death “arising out of and in the course of” employment. But it is the plaintiffs’ burden to establish that Pulliam’s death occurred within the statutory constraints of “arising out of and in the course of” his employment with McDonnell Douglas. As stated in Begey v. Parkhill Trucking Co., supra at 531:

“[A]n injury arises ‘out of’ the employment if it is a natural and reasonable incident thereof and is the rational consequence of some hazard connected with the employment, and rises ‘in the course of’ the employment when it occurs within the period of employment, at a place where the employee may reasonably be and while he is reasonably fulfilling the duties of his employment.”

The right of recovery is further restricted by § 287.020(6), which provides:

“6. Without otherwise affecting either the meaning or interpretation of the abridged clause, ‘personal injuries arising out of and in the course of such employment’, it is hereby declared not to cover workmen except while engaged in or about the premises where their duties are being performed, or where their services require their presence as a part of such service.” (original emphasis)

The meaning of the foregoing restrictive language of § 287.020(6) has frequently been held to limit recovery to injuries occurring on the employer’s premises and not to cover injuries sustained by the employee going to and from work. Person v. Scullin Steel Co., 523 S.W.2d 801 (Mo. banc 1975); Hunt v. Allis Chalmers Manufacturing Co., supra; Kunce v. Junge Baking Co., 432 S.W.2d 602 (Mo.App.1968); Kammeyer v. Board of Education, 393 S.W.2d 122 (Mo.App.1965); Hawley v. Eddy Brothers, Inc., 371 S.W.2d 338 (Mo.App.1963); Anderson v. Pickwick Hotel, Inc., 313 S.W.2d 39 (Mo.App.1958). See generally, Mo.Dig., Workmen’s Compensation 711, 719. The rationale behind this principle is that the employee traveling to and from work is not performing a service benefitting his employer; hence, his activity is not incident to his employment and his injury does not “arise out of” his employment. Hunt v. Allis Chalmers Manufacturing Co., supra. Alternatively, the rule is supported by reasoning that the employee going to and from work is subject only to the common risks shared by the general public and not to any risk casually related to employment. Kam-meyer v. Board of Education, supra.

In this case, Pulliam was on his way to work and was not upon his employer’s premises, so that recovery for his death would normally be precluded. Therefore, if plaintiffs are to prevail, the circumstances must support an exception to the general rule. The exception relied upon by the Industrial Commission in awarding death benefits to plaintiffs involves an implied extension of employer’s premises to include the site of the injury. As stated in I Larson’s Workmen’s Compensation Law, § 15.-13:

“The commonest ground of extension is that the off-premises point at which the injury occurred lies on only route, or at least on the normal route, which employees must traverse to reach the plant, and that therefore the special hazards of that route become the hazards of employment.”

This doctrine received substantial support when the U.S. Supreme Court used it as a basis to support awards in two cases from Utah arising under statutory language nearly identical to the language of the Missouri statute. Bountiful Brick Co. v. Giles, supra; Cudahy Packing Co. v. Parramore, supra.

In this case the referee and the Industrial Commission each issued lengthy opinions which dealt fully with the extension of premises doctrine in Missouri. The referee specifically found the exception not to apply; the Commission found the exception applicable. But in so doing, the Industrial Commission majority found facts discrepant from the findings of the referee, to wit: that there were guards regulating pedestrian traffic and cross walk lines painted across Banshee Road at gate 44A. If true, these facts could support an inference that McDonnell invited and encouraged employees to cross the road at that point, and the inference could extend to include an invitation or encouragement to use the path followed by Pulliam across the railroad tracks. These inferences could also support the Industrial Commission majority in reversing the ruling of the referee and finding that McDonnell had impliedly extended its premises to include the accident site. But plaintiffs and McDonnell Douglas agree that these particular findings of the Industrial Commission were erroneous; that there were no guards and no painted cross walk lines across Banshee Road at gate 44A. While the Circuit Court corrected the Industrial Commission’s factual error, it could not correct the effect of the error on the Commission’s award. A key element is now missing as a basis for award of compensation. We are thus left with the central issue of whether the McDonnell Douglas premises extended to the Norfolk and Western main line track where Pulliam was killed, or, as stated in Hunt v. Allis Chalmers Manufacturing Co., supra, 445 S.W.2d at 409:

“The determining factor is whether the hazard is encountered upon a way which, to all intents and purposes, has been appropriated by the employer as his premises.”

Considering the circumstances here, we cannot say that the railroad main line track on which Pulliam was killed was “so appropriated by the employer or so situate, designated and used by the employer and his employees incidental to their work as to make them for all practical intents and purposes, a part and parcel of the employer’s premises and operation.” Kunce v. Junge Baking Co., supra, 432 S.W.2d at 607.

In awarding plaintiffs’ benefits, the Industrial Commission made the following erroneous finding:

“The employee [Pulliam] and his fellow workers were in effect invited to cross over the railroad right-of-way by means of the foot path by the location of the open gates, the traffic control light maintained by McDonnell Douglas and operated by its guards, the lines painted on Banshee Road by McDonnell Douglas and the pedestrian aid rendered by McDonnell Douglas guards.”

With the sole exception that gate 44A was open, none of the foregoing components of the alleged invitation cited by the Commission actually existed. Thus, evidence supporting the Commissions award was erroneous and not competent. See Duncan v. A.P. Green Refractories Co., supra. As mentioned, the circuit court corrected the factual error of the Industrial Commission by noting that there were no control lights, pedestrian aids or cross walk lines on Banshee Road at gate 44A. But without such invitation components, as found by the circuit court not to be present, although erroneously found to exist by the Industrial Commission, we believe that there is neither competent nor substantial evidence to support an award of compensation. The facts before the Commission were insufficient to warrant the application of the extension of premises doctrine favorably to plaintiffs. See Donzelot v. Park Drug Co., 239 S.W.2d 526 (Mo.App.1951). We thus conclude that the essential elements for applying the extension of premises doctrine are lacking here, that is, those elements referred to in Larson’s Workmen’s Compensation Law, supra, and relied on in Hunt v. Allis Chalmers Manufacturing Co., supra.

Plaintiffs stress that Bountiful Brick Co. v. Giles, supra; Cudahy Packing Co. v. Parramore, supra; and Hunt v. Allis Chalmers Manufacturing Co., supra, afford precise and sturdy basis for upholding the award of compensation. We do not believe so in this case. In Parramore, recovery was justified because the employee: “had no other choice than to go over the railway track in order to get to work; and he was in effect invited by his employer to do so. And this he was obliged to do regularly and continuously as a necessary concomitant of his employment, resulting in a degree of exposure to the common risk beyond that to which the general public was subjected.” Cudahy Packing Co. v. Parramore, supra, 44 S.Ct. at 155. See also, Bountiful Brick Co. v. Giles, supra. This principle was recognized in Missouri in Hunt v. Allis Chalmers Manufacturing Co., supra. The award of compensation in Hunt was supported in part by the fact that the employee, struck on railroad tracks between an off-premises parking lot and the plant yard, would have had to cross the tracks at some point by any route he had to take to work. The award was affirmed even though an alternative crossing was protected by a gate, bell and electric signals. But that factor does not exist in this case. Had Pulliam gone to work by public road, he would not have had to cross the railroad tracks. The road passed under the tracks by either of the closest alternate routes he could have chosen. Thus, he could have avoided the risk entirely.

Plaintiffs argue that the alternate routes open to Pulliam were more circuitous and lengthy than the route he traversed. There is support for this position in Bountiful Brick Co. v. Giles, supra, where the Supreme Court affirmed an award to an employee who had chosen a more dangerous route merely because it was less circuitous and more convenient. But in doing so the Court held only that employer’s liability under such circumstances was not a denial of due process. The holding was permissive and did not constitute a mandate that states must impose such liability, and the Missouri Workmen’s Compensation statute does not do so.

Moreover, there is a further distinguishing factor in Giles. In Giles the record indicates that the more convenient route was followed by all the brickyard workers and that the entrance by road was never used, while it is apparent here that most of the McDonnell employees used guarded entrances.

Plaintiffs argue that the foot path leading to gate 44A had existed for so many years that McDonnell must have known of its use by its employees. From this assumed knowledge plaintiffs impute McDonnell Douglas’ acquiescence in the use and amplify acquiescence to approval of use and, finally, the approval and invitation of the path’s use. There is evidence that both gate 44A and the path had been used for as much as 15 years. But the plaintiffs do not suggest that the gate was fashioned to accommodate the use of the path; in fact, we believe it reasonable to assume that the use of the pathway across the railroad track developed after the existence of gate 44A. Certainly, it is manifest that the number of employees making use of the path to enter gate 44A is puny compared with the overall number of McDonnell Douglas employees, so that the effect is that the path was not the “normal” or recognized means of ingress and egress for employees as in Hunt, Giles and Parramore.

In Hunt v. Allis Chalmers Manufacturing Co., supra, the court found that the employer had invited employees to cross over railroad tracks from a parking lot to the plant yard. While the parking lot was owned by another company, Allis Chalmers had arranged for use of the lot by its employees and had issued instructions for the lot’s use. Further, Allis Chalmers had installed a gate in the fence around its plant to facilitate the employees’ travel across the tracks from the parking lot. The situation here is far different, and we do not consider it to be a reasonable inference that the existence of gate 44A was an invitation for employees to traverse from the area in which Pulliam lived over the terrain which he crossed on his way to work.

Plaintiffs claim that McDonnell Douglas could have prohibited the use of the path. We have already noted that Pulliam, by crawling over or through freight cars, was determined to overcome any impediment to his travel. The land traversed by Pulliam was privately owned. McDonnell Douglas had no association with the landowners by which it would have controlled the use of the land by its employees. In such regard, Hunt is clearly distinguishable. While McDonnell Douglas guards were stationed at other gates and were deputized by municipal police authorities to control traffic on Banshee Road, they had no authority to control trespassers on private land across from McDonnell Douglas on the route which Pulliam took. We therefore believe it would be unreasonable to find that McDonnell Douglas could have prevented employees from using the route on which Pulliam was killed. We do not deem the fact that spur lines moved into the McDonnell Douglas facilities from the main line to be of particular significance in this case.

McDonnell Douglas employees using the path were subject to no greater risk than any other member of the general public making use of the pathway. As such, a basis for a favorable award for plaintiffs does not exist. Kammeyer v. Board of Education, supra; Donzelot v. Park Drug Co. supra; Tucker v. Daniel Hamm Drayage Co., 171 S.W.2d 781 (Mo.App.1943). Plaintiffs urge that no one but McDonnell Douglas employees could utilize the path as it ended at the security fence enclosing McDonnell Douglas’ premises. But there is more. The path ended at a heavily used public road; the fence was across the road. Further, the path commenced in a residential neighborhood, and it would require substantial speculation to determine what use of the path was made by those living in the residences. Clearly the area was not so isolated or so exclusively associated with McDonnell Douglas as to warrant the assumption that it could be used only by its employees.

We conclude that Pulliam’s injury leading to his death did not arise out of nor was it in the course of his employment with McDonnell Douglas; that the McDonnell Douglas premises did not extend to the point where Pulliam was killed. Therefore, the death benefits under § 287.240 should have been denied.

The judgment is reversed.

KELLY, Jr., P. J., and WEIER, J., concur.

      . Pulliam’s former wife sought burial expenses. Statutory references are to RSMo 1969, as Pulliam was killed February 17, 1970. There have been subsequent amendments to the Missouri Workmen’s Compensation Law, but such amendments are not applicable here.

      . At some points in the record, the distance between gates 48 and 44A is indicated to be 200 feet, but the scaled master plan of the McDonnell Douglas plant, introduced as claimants’ (plaintiffs’) Exhibit H, shows the distance to be 400 feet.

      . Hunt v. Allis Chalmers Manufacturing Co., supra, and Kunce v. Junge Baking Co., supra, give thorough and excellent treatment and a collection of Missouri workmen’s compensation law relating to employees’ recovery for off premises injuries.