author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. Nathaniel HODGES, and Bernard Alonzo GRAY, Appellants.
    No. KCD29914.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 27, 1978.

      Samuel Raban, St. Louis, for appellants.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

A jury found both defendants guilty of attempted burglary in the first degree. Each defendant appeals, assigning as error: (1) the overruling of their respective motions for a directed verdict; (2) the form of the respective verdict-directing instructions; and (3) a ruling by the trial court restricting cross-examination of one of the State’s witnesses. We affirm.

The prosecution introduced evidence to show that at about 3:00 a. m. on July 10, 1977, John Leslie McCurdy was awakened by noise and voices immediately outside of his home. Apprehensive, he called the police. While calling, he heard screens being ripped from bedroom windows and he heard a plant situated on a stool within a foot of the window crashing to the floor. At the same time, he could see shadows cast upon the couch next to him reflecting movement by those outside one of the windows. From observing these shadows, it appeared to him that one person was crouching down as though stepping through the window.

Shortly thereafter the police arrived, and the three persons outside the house fled. Following a chase, the two defendants were apprehended. The police found in the vicinity a shotgun, a starting pistol and a can of mace. A screwdriver was also either taken from the person of defendant Hodges or from the ground close to where he was apprehended or had been. Also found below one of the windows with a torn screen was a new bicycle kick stand.

I.

The first point on appeal in each appellant’s brief reads as follows: “The trial court, in error, overruled the defendant’s motions for a directed verdict of acquittal at the close of the State’s case and at the close of the entire case, to the prejudice of the defendant [Nathaniel Hodges] [Bernard Alonzo Gray].” This assignment is insufficient under Rule 84.04(d) for the reason that it does not state wherein and why the challenged ruling of the trial court was erroneous. Nevertheless, this point will be reviewed for plain error under Rule 27.-20(c).

Both defendants argue principally under this point that the evidence shows a completed offense of burglary and that therefore the State was barred under Section 556.160, RSMo 1969 from charging them with a mere attempt to commit burglary. The rule which defendants seek to invoke applies only where the proof shows substantial evidence that the attempted offense was in fact consummated. State v. Gadwood, 342 Mo. 466, 116 S.W.2d 42 (1938); State v. Baker, 276 S.W.2d 131 (Mo.1955). In order for there to have been a consummated burglary, there must therefore have been some substantial evidence of an entry. Such proof is here lacking.

Defendants argue that entry is shown in two ways: (1) by reason of McCurdy’s observation of the shadows cast on his couch, and (2) because of the fallen plant just inside the window. With respect to the testimony about the shadows, that was far too uncertain to amount to substantial evidence. Thus the McCurdy testimony went in part as follows:

“Q. Mr. McCurdy, did you see any of the individuals enter your house?
A. No, sir, I did not.
Q. When you say that, did any of them enter ever so slightly in any way, shape or form?
A. Not that I could testify to. Like I say, I did see the silhouette on the couch but_[interrupted]
Q. What did you view; what was this silhouette, can you tell us—
A. Silhouette was two — what I assumed to be men, at the window, and since it was only two dimensional silhouette I couldn’t tell exactly what they were doing. They were at the window and there was the noise accompanying their movements at the window. I couldn’t distinguish any features or anything because of the silhouette. There’s a street light on the street behind the window there, that’s how I got the silhouette.
Q. Just as the police came, did any of these men enter or make any movements to enter your house?
A. Like I say, said before, with the two dimension of the silhouette I couldn’t really tell. A man was crouching down and he made a lifting movement at the window. I assume that he was coming in the window, but I couldn’t really tell.
Q. Did the shadows indicate he was coming in the window?
A. They did.
Q. Did any part of his body, according to that silhouette, penetrate the pane of the window?
A. I can’t tell for sure.
* * * * * *
Q. Can you tell me—this is very important—go back to the situation where—when you saw the silhouette coming through your window. Can you tell us exactly what you saw?
A. I saw a silhouette of two men at the window and just as the police car pulled up, I saw one of them crouching in a position that I interpreted to be one that you would get into to go through the window. Whether or not he was actually through the ■ window, I can’t say. I would say he was in the process of attempting to enter the window. The silhouette did not allow for any detail, just general body movements.”

The evidence with respect to the fallen plant just inside the window was equally speculative with respect to showing the element of entry. The evidence as a whole tends to the conclusion that the bicycle kick stand was used to break through the screen and that in the course of this breaking the tool knocked over the plant. This indeed was the argument made by defense counsel during the course of trial when he stated to the court, “there’s no way this screen could have been torn the way it is unless the instrument used to tear it made entry into the house.” If this be so, then the intrusion of the instrument into the enclosure of the house was not sufficient to constitute “entry” in the legal sense. A burglarious entry can be made by an instrument, but only “where a hook or other instrument is put in with intent to take out goods, or a pistol or a gun with intent to kill; but it is necessary that the instrument shall be put within the house, and that it shall be inserted for the immediate purpose of committing the felony or aiding in its commission, and not merely for the purpose of making an opening to admit the hand or body, or in other words for the sole purpose of breaking.” 12 C.J.S. Burglary § 10b, p. 674. See State v. Pigques, 310 S.W.2d 942, l.c. 947 (Mo.1958).

Of course it is possible that in the course of breaking the screen the hand of one of the defendants may have intruded into the house. However, this is purely speculative. Where the evidence is equally consistent with the plant having been knocked off either by the instrument or by a hand, the evidence does not preclude a reasonable hypothesis of innocence and therefore is not sufficient to support a conviction. State v. Boothe, 364 S.W.2d 569 (Mo.1963); State v. Walker, 365 S.W.2d 597 (Mo.1963); State v. Ramsey, 368 S.W.2d 413 (Mo.1963); State v. Morse, 503 S.W.2d 450 (Mo.App.1973). Accordingly, the evidence would not have sustained a submission of the consummated offense of burglary.

Both defendants further argue on the last page of their respective briefs, for the first time, under the heading “Conclusion” that the prosecution introduced no evidence showing an intent by the defendants to steal. This argument is mistaken. The circumstances here are adequate from which the jury could and did infer the intent to steal. State v. Ramsey, supra; State v. Faber, 499 S.W.2d 790 (Mo.1973); State v. Washington, 484 S.W.2d 267 (Mo.1972); State v. Cuffie, 403 S.W.2d 633 (Mo.1966).

Finally, under this heading, defendant Hodges argues that there was no evidence to prove that he did anything to further the crime perpetrated by others. However, the prosecution witnesses observed Hodges standing in the yard near the victim’s house at the time the crime was being committed and when the officers arrived, he “kind of raised his arms like he was waving and gesturing to the other two fellows, then they took off running.” This action by Hodges brings him within the ruling of McMannus v. Lee, 43 Mo. 206 (1869) which holds that any person who encourages or exercises the commission of a trespass “by words, gestures, looks or signs * * * is in law deemed to be an aider and abettor.” Further, Hodges’ flight from the police constitutes evidence indicative of guilt. State v. Hooper, 494 S.W.2d 306 (Mo.1973). In sum, the evidence was sufficient for submission to the jury, and the motions for acquittal were properly overruled. In this respect, there was no error, much less plain error in the meaning of Rule 27.20(c).

II.

The defendants object to the form of the verdict-directing instructions which were framed in terms of whether the defendants “attempted to break into the dwelling house”: and “attempted to make entry.” Defendants point to MAI-CR 2.06 which directs that the instruction shall submit each essential element of the defense, “using the words ‘attempted,’ ‘failed’ and ‘attempted but failed’ as appropriate.” The respective Point Relied On in each brief relative to this issue challenges the verdict-director as erroneous “by failing to include the words ‘failed’ or ‘attempted but failed.’ ” In the argument portion of each brief, the contention is explained as a complaint that “the Instruction as given does not use the words ‘attempted, failed’ and ‘attempted but failed’ as specified in the first paragraph of 2.06.”

The major premise of defendants’ argument consists of a misstatement of MAI-CR 2.06. Paragraph First of that form does not use the words “attempted, failed” as a separate phrase to be used as one of two alternatives along with “attempted but failed.” Instead paragraph First sets out three choices (“attempted”, “failed” and “attempted but failed”) any one of which can be used. Each verdict-director chose the first of the three permissible choices. Defendants’ challenge is untenable.

Moreover, the claim of prejudice by defendants is unconvincing. They contend that under the instructions as given, the jury may have believed that they could be convicted of attempted burglary even though an entry was actually consummated. That fear cannot stand inspection in light of Instruction No. 8 which was given on behalf of defendants and which directed the jury: “If you find and believe from the evidence that defendants or any one of them made entry however slight into the premises at 1620 Paris Road you must find them not guilty of attempted burglary.”

III.

Defendants’ final point complains of a restriction upon their effort to cross-examine Officer Holmes, a prosecution witness. In the course of his direct examination, Holmes testified that he took a statement from defendant Gray. With reference to that statement, the prosecuting attorney inquired and Holmes answered as follows:

“Q. Did you ask Mr. Gray how he got to Columbia?
A. Yes, sir.
Q. Did he respond or tell you how he got to Columbia?
A. Yes, sir.
Q. What did he say, sir?
A. He said he and his brother Mr. Hodges left St. Louis with another subject by the name of Craig in this vehicle.
Q. In this vehicle?
A. This ’69 Cadillac, the picture here, * * * 91

On cross-examination defense counsel undertook to cross-examine Officer Holmes further about the statement in an effort to show that Gray had also stated to Holmes that the purpose of defendants’ coming to Columbia was “to trade a shotgun for drugs.” This could have been important, because McCurdy had already testified that he had marijuana in his house and occasionally made sales to other people; and defendants’ counsel was endeavoring to have the jury infer that defendants’ intent was to get into McCurdy’s house to make a marijuana purchase, not to steal. With this objective, defense counsel asked a series of questions, of which the following questions, objections and rulings were typical:

“Q. Did they tell you their purpose or business in Columbia?
A. Yes.
Q. What was that?
MR. SEITZ: I object.
THE COURT: Sustained. Proceed.
Q. [by Mr. Doak] Did they tell you what they were doing at McCurdy’s house?
A. Yes, sir.
Q. What did they tell you?
MR. SEITZ: I object again, Your Hon- or.
THE COURT: That objection will be sustained. Proceed.”

Defendants argue that the rulings restricting their cross-examination with respect to the statement given by Gray to Holmes was erroneous for the reason that the State had opened up the subject by asking about part of the statement and defendants therefore had the right to elicit from Holmes any further portions of the same statement made at the same time and place. The law does recognize the right of a defendant to inquire about and place in evidence all additional parts of a statement which will tend to explain a partial excerpt which has first been introduced by the prosecution. This principle gives effect to the natural justice of not allowing the jury to hear only a one-sided version of a conversation without giving the other party a chance “to fill out and explain the sense of” the conversation already in evidence. The idea is to prevent any half-truths or false impressions by providing the jury any “relevant remainder” which the jury needs in order to examine and weigh defendant’s statement “in the light of the whole truth.” State v. Howard, 564 S.W.2d 71 (Mo.App.1978); Kelley v. Hudson, 407 S.W.2d 553 (Mo.App.1966). In order to accomplish this just purpose, the law permits the additional portion of the defendant’s statement even though self-serving and despite the fact that otherwise it would be excluded as hearsay. But to come within the reason of this exception, the additional portion which is sought to be introduced must be reasonably related to and explanatory of the portion already admitted.

The rule applicable to this situation is stated in 98 C.J.S. Witnesses § 381, pp. 141-142, as follows: “. . . as a general rule a witness who, on his direct examination has testified only as to a part of a particular conversation may on cross-examination be asked to give the rest or whole of the conversation or statement, so far as it is relevant and material to the controversy and tends to explain, contradict, or qualify the part of the conversation which was testified to on direct examination * * *." [emphasis added] See also 29 Am.Jur.2d, Evidence, Section 599, p. 653, and Jones on Evidence, Vol. 2, Section 13:54, p. 540. The rule quoted accords with State v. Sibley, 207 S.W. 806[4] (Mo.1918); State v. Hayes, 391 S.W.2d 338[3] (Mo.1965); People v. Flaherty, 162 N.Y. 532, 57 N.E. 73 (1900), cited and quoted at length with approval in State v. McDonough, 232 Mo. 219, 134 S.W. 545, l.c. 548 (1911).

The scope of the direct examination with reference to Gray’s statement to Holmes was limited to how the defendants got to Columbia and that they came together with a third party. The trial court could reasonably conclude that the question into which defendants sought to delve on cross-examination, the purpose of the trip, did not tend to explain, contradict or qualify the portion of the statement brought out on direct examination. Accordingly, the testimony sought to be introduced by cross-examination of Holmes does not come within the exception sought to be relied upon by defendants. If they desired to rely on the defensive matter in question, it was incumbent upon them to do so by putting Gray on the witness stand, thereby subjecting him to the normal safeguard of cross-examination. The ruling by the trial court limiting the questioning of Holmes did not exceed the broad discretion possessed by it with respect to the scope to be permitted cross-examination.

Affirmed.

All concur.

      . The argument portion of each brief also seeks to introduce an additional argument against these instructions, but that additional argument will not be considered because not included in the Points Relied On, as required by Rule 84.-04(d).

      . The Howard and Kelley cases both deal with the doctrine of “curative admissibility,” which is related to but distinct from the problem here under discussion. However, in both the underlying question is the same, in that the evidence sought to be introduced on cross-examination would not be admissible except in the interest of fairness in order to meet the earlier evidence admitted on direct.

      . Wigmore on Evidence Sec. 2113 states and recognizes the rule set forth by the foregoing texts, but also points out a line of cases following a more liberal rule which allows the additional material on cross-examination so long as it is relevant to the general subject matter. Wigmore concedes that “this liberal allowance cannot, in theory at least, be defended”, but nevertheless expresses an inclination in its favor because of allegedly greater simplicity. It does not seem to this court that an illogical legal principle should be adopted merely because of greater ease of administration and convenience.


source: Caselaw Access Project

author: ROBERT R. WELBORN, Special Judge.

license: Public Domain

text:
    Patricia Ruth TERRELL, Plaintiff-Respondent, v. BAILEY LIMESTONE CO., INC., Defendant-Appellant.
    No. KCD 28982.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 27, 1978.
    Application to Transfer Denied Feb. 13, 1979.

      Roy A. Larson, Thomas R. Larson, Morris, Larson, King, Stamper & Bold, Kansas City, for defendant-appellant.
    Harry L. Porter, Marceline, for plaintiff-respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J„ and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Action for damages for personal injuries received in automobile collision. Jury returned verdict for plaintiff for $25,000.00. Defendant has appealed from the ensuing judgment.

On December 15, 1972, at around 4:00 P.M., Patricia Ruth Terrell was driving her 1972 Ford LTD with four passengers eastbound on Route Z just outside Marceline, Missouri. The blacktopped road surface was icy. Mrs. Terrell slowed her vehicle preparatory to making a right turn into a driveway. She applied her brakes and activated the right turn signal light. As she slowed she noticed that a truck which had been following her began to get closer to her automobile. She slowed her vehicle to a speed of about two miles per hour and had just begun to turn into the driveway when the truck struck her auto in the rear, knocking it into a ditch and causing injuries to Mrs. Terrell.

Minor F. Martin, an employee of Bailey Limestone Co., Inc., was the driver of the truck, owned by Bailey. According to him, he was following the Terrell auto at a distance of about 200 to 300 feet at approximately 30 miles per hour when, without warning, the Terrell auto stopped in the road in front of him. He applied his brakes, but, because of the icy conditions, the wheels locked and the truck slid into the rear of the Terrell auto.

At the trial, Mrs. Terrell’s claim for damages was submitted under the following instruction:

“Your verdict must be for plaintiff if you believe:
“First, defendant was following the 1972 model Ford car operated by the plaintiff too closely, 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. 5.”

Defendant Bailey submitted the following instruction, given to the jury:

“Your verdict must be for the defendant whether or not defendant was negligent if you believe:
“First, plaintiff stopped on the highway in front of defendant’s truck, without adequate and timely warning in light of existing conditions; and
“Second, plaintiff’s conduct submitted in paragraph First was negligent; and
“Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.”

The jury returned a verdict for plaintiff and fixed her damages at $25,000.00. After its motion for new trial was overruled, defendant appealed.

In this court, the first assignment of error is predicated on the failure of the trial court to order a new trial because the term “negligent” as used in plaintiff’s verdict-directing instruction was not defined for the jury. Appellant contends that such definition was required in order to fairly submit the issues to the jury and that the absence of definition of the term resulted in a lack of direction for the jury and gave them a roving commission.

The question here raised has been put at rest under MAI revisions effective January 1, 1978, under which the term “negligent” or “negligence,” if it appears in an instruction, must be defined. See Notes on Use, MAI 11.02 (1977 Revision). At the time of trial of this case (April, 1976) no clear-cut rule had been established regarding the effect of failing to give an instruction defining the term. In the most recent case in the Supreme Court involving the question, the court expressed no opinion as to whether or not the absence of such definition constituted prejudicial error. The court noted “* * * that the better practice is to include such a definition where the term negligence appears in any of the instructions.” Epple v. Western Auto Supply Co., 548 S.W.2d 535, 544[17] (Mo.banc 1977).

In Carter v. Consolidated Cabs, Inc., 490 S.W.2d 39, 42-43[3-4] (Mo.1973), the court, after reviewing the prior cases on the subject, concluded that failure to define the term “negligently” as used in plaintiff’s verdict-directing humanitarian instruction which submitted that the defendant “negligently failed to so swerve” was not error. The instruction also required a finding that defendant “by using the highest degree of care * * * could have avoided injury to plaintiff by swerving” and the term “highest degree of care” had been defined. In holding that failure to define “negligence” was not error, the court said: “Failure to swerve is not a technical term, but rather is one in everyday understanding of jurors, and highest degree of care was defined.” 490 S.W.2d 43.

A similar approach is found in Rakestraw v. Norris, 478 S.W.2d 409, 420[25-27] (Mo.App.1972), where the negligence submitted was that “defendant either: violated the traffic signal, or failed to keep a careful lookout” (478 S.W.2d 416) and no definition of “negligent” was given, the court said (478 S.W.2d 420):

“* * * we realize that it is not an M.A.I. requirement that a definition of the word negligence be given whenever that term appears in the instructions, Brewer v. Swift & Company, Mo., 451 S.W.2d 131, 134, and perhaps if plaintiff had submitted her case solely upon a violation of the traffic signal, such definition would have been unnecessary. However, there is no specific statutory duty to maintain a careful lookout in this state, except as that duty inheres in the requirement that ‘[e]very person operating a motor vehicle on the highways of this state shall drive the vehicle in a careful and prudent manner . . and shall exercise the highest degree of care.’ § 304.-010, par. 1. ‘Keeping a careful lookout’ does not in itself denote the exercise of a specific standard of care; it is a term of variable meaning, depending upon the context in which it is used. In this particular case, the defendant was required to exercise the highest degree of care in the maintenance of a lookout to discover the presence of other persons and objects on the streets and to become aware of dangerous situations and conditions there existing, Miller v. St. Louis Public Service Company, supra, 389 S.W.2d 771[2], but the jury was given no standard by which to measure his duty because the terms ‘negligent’ and ‘negligence’ were not defined. As stated, because of the broad generality of the lookout submission, it is our opinion that the terms ‘negligent’ and ‘negligence’ should have been defined, and that plaintiff’s failure to define those terms was prejudicial to the defendant.”

In Cunningham v. Hayes, 463 S.W.2d 555, 562-565 (Mo.App.1971), the failure to define negligence in a res ipsa submission was held error. The court stated (463 S.W.2d 564-565):

“To submit MAI res ipsa loquitur negligence, a finding of probability, without defining the equivalent standard of care, an ingredient of that probability, is substantively insufficient as depriving the jury of a necessary basis for their finding.”

Appellant relies particularly upon the Rakestraw and Cunningham cases. Appellant contends that the term “was following * * * too closely” is a term of variable meaning, depending upon the context in which it is used. Appellant points out that the statutory prohibition of the practice is found in Section 304.017, RSMo 1969, as follows:

“The driver of a vehicle * * * shall not follow another vehicle more closely than is reasonably safe and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the roadway. * *

There is, thus, a statutory duty on the part of an operator of a motor vehicle not to follow another vehicle too closely. The statute is not specific in stating the distance. Variables are involved — speed, traffic and condition of the roadway. However, given the general familiarity of the public with automobile operation, jurors of average intelligence could be expected to understand that “following too closely” would mean that the driver of the following vehicle should not be so close to the vehicle ahead that he could not, under the circumstances, avoid striking the vehicle ahead which undertook a properly signalled and executed maneuver which involved a reduction of speed. To have added, in a case such as this, the MAI definition of negligence (MAI 11.02 II), would .not have brought specifically to the jury’s attention the variables recognized by the statute as involved in determining a reasonable following distance. In this case, there was no evidence of unreasonable speed on the part of either driver and other traffic was not a factor. There was agreement as to the slick condition of the roadway. In the comparatively simple circumstances of this case, the failure to define negligence for the jury was not reversible error.

Appellant next contends that the trial court erred in failing to order new trial because a juror intentionally concealed a prior insurance claim.

On voir dire, appellant’s counsel inquired:

“Have any of you had any lawsuits for personal injuries by any chance or made any claim for injuries to you or to members of your immediate family?”

One panel member stated that his father had been killed on the railroad and he made a claim against the railroad.

Counsel then inquired:

“Anyone else made a claim or had a lawsuit of that kind or nature either for your or your immediate family?”

No further response was made to the inquiry.

At a post-trial hearing, juror Albertson acknowledged that, in February, 1972, her automobile had been struck from behind by another vehicle at a stop sign in Chillicothe. She sustained an injury to her neck for which she received chiropractic treatment. She and her husband made a claim against the driver of the other automobile and received $600 in settlement of their claim. In explanation of her failure to disclose this occurrence she stated that she considered the incident in which she was involved “just a mishap because we didn’t even call the police. * * * I compare it nothing to this [case] because this was an accident to me; * * She stated that she did not hear the word “claim” in the voir dire question. She also said that if she had heard the word she thought that she would not have responded because she “forgot about it.” She said that she did not associate her claim with the lawsuit and did not see any connection between her case and the respondent’s. She said that she may have thought of her accident during the trial, but that she did not believe it influenced her mind either way.

Appellant relies upon Beggs v. Universal C.I.T. Credit Corporation, 387 S.W.2d 499 (Mo.banc 1965) as authority supporting his contention that Ms. Albertson intentionally concealed a material fact and that the trial court abused its discretion in overruling the motion for new trial because respondent did not have a trial before a jury of twelve fair and impartial persons.

As the court pointed out in Beggs, the determination of whether or not the failure of a juror to respond to a question concerning his qualification amounted to intentional concealment is a matter for the sound discretion of the trial court, reviewable only to ascertain whether or not the record “unmistakably” discloses an abuse of discretion. 387 S.W.2d at 503.

In Beggs, the action was against a finance company for unlawfully taking a truck in connection with a debt owed by plaintiff to the finance company. On voir dire, jurors were asked individually whether or not they had ever had any trouble with a finance company. Three jurors to whom the question was propounded responded negatively. At the post-trial hearing, it was shown that they had had such troubles. One juror admitted that he remembered the problems which he had had when the question was asked but responded negatively because he didn’t think his experience had any bearing. One said that he did not think about his numerous encounters with finance companies. Another responded that he did not consider his experience “trouble.” Another juror who had not responded to a question of the entire panel about being a party to a lawsuit acknowledged that he remembered when the question was asked an action in which he had been involved but he felt it had nothing to do with the case on trial.

The Supreme Court found that the jurors’ post-trial testimony showed that they willfully and intentionally withheld information which should have been disclosed on voir dire and it rejected the trial court’s contrary finding.

In this case, the juror did not acknowledge that her experience was recalled to her on the voir dire examination. The trial court, being aware of the circumstances of the voir dire and having the opportunity to observe the juror at the post-trial hearing was in a far better position than this court to assess the credibility of her explanation that she did not hear the word “claim” in connection with the inquiry about “lawsuits or claims.” On this record this court cannot say that an abuse of discretion on the part of the trial court “unmistakably appears” and its action will not be disturbed. See Goodman v. Firmin Desloge Hospital, 540 S.W.2d 907, 910—911[1] [2-8] (Mo.App.1976).

Appellant contends that the $25,000 verdict in favor of respondent is excessive under the rule of reasonableness and uniformity and that it should have been reduced by the trial court by remittitur.

Respondent was 20 years of age at the time of the accident. She sustained a severe sprain to the cervical area of the spine. She was hospitalized for two days, in traction. Thereafter she wore a cervical collar for a time. At the time of the trial in April, 1976, she was still bothered by pain in her neck for which she took muscle relaxants and received periodic traction. She complained of more frequent headaches following the injury and pain in her arms. According to respondent, she lost 50 weeks of work because of her injuries. Her normal pay was around $86 per week. The physician who treated her said that she could have returned to work after 10 weeks. According to her physician, respondent’s “condition is not being lessened in severity so it must be permanent.”

Basing its argument upon the rule of uniformity of verdicts, the sole authority cited by appellant as involving a case fairly comparable with the present case is Salzwedel v. Vassil, 351 S.W.2d 829 (Mo.App.1961). In that case a verdict in favor of a 35-year-old housewife who had sustained injuries somewhat comparable with those sustained by respondent was reduced by the appellate court from $9,000 to $6,000.00. Appellant acknowledges that inflation must be considered in applying that case today but suggests that considering that factor, an award of $12,000 in this case would be reasonably comparable with the 1961 $6,000 awarded in Salzwedel.

This court is not convinced that the single authority cited by appellant requires reduction of the verdict in this ease. There are distinguishing factors. Respondent here was hospitalized, although briefly. The plaintiff in Salzwedel was not hospitalized. Respondent is a younger person than plaintiff in Salzwedel. Although the doctrine of remittitur is still subject to application by an appellate court in Missouri (Worley v. Tucker Nevils, Inc., 503 S.W.2d 417, 423-424 (Mo.banc 1973)), it must be obvious that Salzwedel is the product of a time of closer appellate scrutiny of the amount of a verdict. There have been relatively few cases in recent years which have dealt with the amount of awards for injuries in cases such as this. Worthy of note is Warriner v. Eblovi, 485 S.W.2d 700 (Mo.App.1972), where a judgment of $30,000 for a cervical sprain was sustained. In that case plaintiff did have $1500 medical expenses and in this case the amount of respondent’s medical expenses was not placed before the jury although she obviously had such expenses. The injury in Warriner may have been somewhat more serious but, in view of that case, the judgment for $25,000 in the present case cannot be said to violate the uniformity rule.

Judgment affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    TRANSPORT INDEMNITY COMPANY, Appellant, v. James M. TETER, Carolyn Teter, and John Morris, Respondents.
    No. KCD 28907.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 27, 1978.
    Application to Transfer Denied Feb. 13, 1979.

      Roy A. Larson, Kansas City, for appellant.
    James H. McLarney, Kansas City, for respondents.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

This appeal is from a declaratory judgment which determined that a policy of insurance issued by plaintiff Transport Indemnity Company to Indiana Refrigerator Lines, Inc. affords coverage to defendant John Morris against liability from the operation of tractor-trailer leased by Indiana and driven by Morris.

The declaratory judgment action was tried to the court on a stipulation of the facts, exhibits and testimony of James Tet-er, seriously injured in the casualty and claimant against Morris for damages.

The evidence shows that on January 14, 1968, an International tractor-trailer driven by Morris overturned on an Iowa highway and caused injury to Teter, then asleep in the cab. The truck was owned by Philp [also, Phelps], a resident of Iowa, who transported freight by motor vehicle under contract to private and common carriers. The tractor-trailer unit was, at the time of the occurrence, under lease from Philp to Indiana Refrigerator Lines, Inc. to transport a load of beef from Sioux City, Iowa to Bangor, Maine. Indiana Lines was a common carrier of commodities under certificate from the Interstate Commerce Commission. At the time of the casualty Morris was the driver-employee of Philp and received for pay twenty-five percent of the gross sum received by Philp for the use of the unit for a given job. Teter was employed by Morris for the particular trip as a driver-helper to be paid by Morris from the sum received by him from Philp.

Transport Indemnity Company wrote an insurance policy wherein Indiana Refrigerator Lines was a named insured. The policy was in full force and effect on the date of the casualty to Teter. The Teters, husband and wife, brought suit for damages against Morris as defendant. [Teter had made claim and received benefits under the Workmen’s Compensation Law of Iowa.] Morris made demand upon Transport Indemnity to assume defense and to pay any judgment returned against him for the Tet-ers. Transport Indemnity thereupon brought this action for a declaratory judgment that Morris was not an insured under the policy issued to Indiana Refrigerator Lines and so was not obligated to defend the action against him or to pay any resultant judgment. Morris, although named and served, made no defense to the declaratory judgment action and does not respond to this appeal.

The circuit court declared and adjudged that Morris was an Insured under the policy so that Transport Indemnity owed him a defense and satisfaction of judgment returned against him for the Teters. The court made this determination of law to rest on the Exclusions of the policy terms:

THIS POLICY DOES NOT APPLY
A. To any liability
2. for bodily injury ... of any employee of an insured arising out of or in the course of his employment by any insured, except
a. liability the named insured may have with respect to bodily injury . of an employee of any insured other than the named insured.

The court adopted this syllogism to declare coverage for Morris under the policy:

Indiana Refrigerator Lines was the Named Insured under the policy.
Philp and Morris were Insureds under the policy at the time and place of the casualty.
Teter was an employee of an Insured [Philp] other than the Named Insured [Indiana Refrigerator Lines].
Teter was not an employee of Morris, the Insured who seeks coverage.
Teter was not an employee of the Named Insured Indiana Refrigerator Lines.
Since the Named Insured, Indiana Refrigerator Lines, may be liable to Teter for injury caused by the negligence of Insured Morris, the provision which excluded coverage to Teter because he was an employee of an Insured does not apply.

The judgment declares, essentially, that because by the terms of the policy Teter could have proceeded against the Named Insured [Indiana Refrigerator Lines] on the liability of the Insured [Morris], he may proceed against the Insured because Teter was not an employee of that Insured. This logic assumes, of course, that Morris was an Insured under the policy language.

The printed policy, however, provides coverage only to the Named Insured and those designated as additional Insureds. The definitions of those terms are given as:

NAMED INSURED — The words “Named Insured” shall mean only the person, firm or organization set forth in Item L of the Declarations.
INSURED — The word “Insured” shall mean the Named Insured and any other person, firm or organization to whom insurance protection has been extended under this policy.

DECLARATIONS Item 1 designates Indiana Refrigerator Lines [and other enterprises, neither Philp nor Morris among them] as Named Insured. A succession of endorsements extends coverage to numerous truckers as additional Insureds, but not Philp or Morris. Nor does the policy contain an omnibus clause to protect a permissive user of a motor vehicle leased to a Named Insured against liability.

Insurance is a matter of contract and, as with any other consensual undertaking, must be given effect according to the plain terms of agreement. Automobile Club Inter-Insurance Exchange v. Diebold, 511 S.W.2d 135, 137[1, 2] (Mo.App.1974). The insuring clauses of the policy show intention that coverage shall extend only to those declared as Named Insured or additional Insured. Philp and Morris were neither declared as persons to whom the policy issued nor were they added by endorsement to cover their personal liability as a special risk. [See, Long, Law of Liability Insurance, § 1.01 (1978); Keeton, Insurance Law, pp. 3 et seq. (1970)]. An insurance company may, within the limits of public policy, undertake agreements to limit or restrict coverage. Empire Fire and Marine Co. v. Brake, 472 S.W.2d 18, 21[1] (Mo.App.1971). In this case, Indiana Refrigerator Lines protected against liability to the public from operations as a motor carrier for hire of owned and nonowned vehicles. The effect of the coverage of the policy was to extend coverage to Indiana Refrigerator Lines from the transport activities of Philp and Morris under the lease but, in the absence of special endorsement, to withhold coverage for the personal liability of lessor Philp and his employee-driver Morris. It was an additional risk not undertaken by Transport Indemnity Company nor, as the policy discloses, paid for by Indiana Refrigerator Lines. Transport Indemnity Company owes no indemnity to Philp or driver-employee Morris for any liability adjudged against them for Teter.

The conclusion of law — that Philp and Morris were insureds under the policy at the time of the casualty — upon which the declaration of coverage is premised — finds coverage, not from the insuring clauses of the policy, but from the Exclusions provisions. The trial court entry of judgment makes no mention of the Named Insured and additional Insured definitions which, by clear terms, do not encompass Philp or Morris within the risks undertaken by the insurer. Rather, the court rendered coverage on their behalf by an “ambiguity” discovered in the Exclusions clause which, by the printed word, protects against “liability the named insured may have with respect to bodily injury . . . of an employee of any insured other than the named insured,” but which, by the construction accorded by the trial court, protects against the liability not only of the Named Insured but also of any additional Insured — namely, Philp and Morris. [Emphasis added.] Whatever may be the validity of recourse to construction of contract terms which, ostensibly, do not admit of misunderstanding, this exercise assumes an antecedent status of Insured for Philp and Morris which the Exclusions did not affect. That assumption does not stand.

An Exclusions provision of an insurance policy, by apodictic definition, excludes risk. It has no function to endow coverage but rather limits the obligation of indemnity. Couch on Insurance 2d, § 15.47; Wellman v. Liberty Mutual Insurance Company, 496 F.2d 131, 136[1-3] (8th Cir. 1974). Exclusions A(2)(a) [by which the trial court rendered coverage for Philp and Morris] stated as an affirmative proposition rather in the formulistic Exclusions and exception from Exclusions language of the policy, says clearly and simply: that the policy applies to liability the Named Insured may have for injury to an employee of an Insured but not to liability for injury to an employee of the Named Insured. Neither these, nor any other term of the policy, nominates, expressly or by a necessary implication, Philp and Morris as an Insured. The terms simply do not extend the protection of the policy to them. Insurance coverage cannot be invented but must be invested by the contract terms. Graham v. Gardner, 233 S.W.2d 797, 800[4, 5] (Mo.App.1950).

It is the argument of Teter on this declaratory judgment appeal that the policy issued by Transport Indemnity to Indiana Refrigerator Lines imports coverage of Morris even though he was not designated an Insured by the written policy. He contends that the operations which the policy undertakes to insure determine the coverage intended by the underwriter. In this case [he argues] the movement of commodities throughout thirty states almost entirely by leased vehicle by a common carrier under certificate from the Interstate Commerce Commission augurs intention that the drivers [always furnished by the lessor] were personally insured against public liability and, by analogy, simulates the coverage to a permissive driver by the omnibus clause of a standard insurance policy.

The argument of omnibus coverage by analogy rests on three premises: (1) the Interstate Commerce Commission regulations which require that Indiana Refrigerator Lines be fully responsible for leased vehicles under its direction and control and (2) endorsement eight of the Transport Indemnity policy issued in compliance with the regulations and (3) the requirements of Iowa law [where the casualty occurred] — all formulate a form of omnibus coverage for the benefit of a driver of a vehicle under interstate certificate as was Morris.

The provisions of Part II of the Interstate Commerce Act §§ 201-216 [49 U.S. C.A. §§ 301-316] require the ICC to regulate common carriers by motor vehicle in interstate commerce and empower that agency to promulgate rules on the use by motor carriers of nonowned vehicles. In this exercise, the ICC may adopt [§ 304(e)(2)]

. such other regulations as may be reasonably necessary in order to assure that while motor vehicles are being so used [under lease or contract] motor carriers will have full direction and control of such vehicles and will be fully responsible for the operation thereof in accordance with applicable law and regulations, as if they were the owners of such vehicles .

In conformance with the regulations adopted under this authority the lease between Indiana Refrigerator Lines and Philp included the agreement that the equipment leased was in the “exclusive possession, control and use of the authorized carrier LESSEE [Indiana] and the LESSEE assumes full responsibility in respect to the equipment it is operating, to the public, the shippers, and the INTERSTATE COMMERCE COMMISSION.” To secure compliance with other requirements of the Interstate Commerce Act § 215 [49 U.S.C.A. § 315] and the pertinent regulations of the ICC, endorsement eight issued as part of the policy from Transport Indemnity Company to Indiana Refrigerator Lines whereby the insurer agreed to pay, within the limits of liability

any final judgment recovered against the insured for bodily injury or death of any person . . . (excluding injury to or death of the insured’s employees while engaged in the course of their employment . . .) resulting from negligence in the operation, maintenance or use of motor vehicles under a certificate of public convenience and necessity or permit issued to the insured by the Interstate Commerce Commission regardless of whether such motor vehicles are specially described in the policy or not. [Emphasis added.]

Teter contends that the ICC regulations and the compliances given them by Indiana Refrigerator Lines by the terms of the lease and of endorsement eight import into the policy of insurance coverage against the personal liability to the public of the driver of a vehicle leased by a motor carrier. The respondents come to this conclusion on the principle — in the language of the brief — that “where coverage of certain persons is required by statute, a court must read into the policy the statutory omnibus clause covering such persons.” The fallacy of this argument is evident: the Interstate Commerce Act and regulations require only that the motor carrier under certificate [the insured in the terms of endorsement eight] shall be fully responsible for the operation of the nonowned motor vehicle. The purpose of § 315 [U.S.C.A.] of the Interstate Commerce Act [and of endorsement eight which copies the text of that enactment] is to protect the public against injury or death from the negligent operation of motor vehicles [owned or nonowned] used by a common carrier under certificate from the ICC. That purpose is fully served by a policy of insurance which insures the carrier against claims of negligent injury or death from its motor vehicle operations. Transport Indemnity Co. v. Rollins Leasing Corp., 14 Wash.App. 360, 541 P.2d 1226 (1975). The coverage of the driver is extraneous to this essential purpose.

The cognate provision of § 304 [U.S.C.A.] of the Interstate Commerce Act — that the common carrier under ICC certificate shall have full control and responsibility for the operation of a leased motor vehicle — corrects the historical abuse whereby the carrier engaged an owner of equipment as an independent contractor to transport cargo and thus enabled the carrier to evade, among other responsibility, liability to the public for injury from the negligence of the contractor. Duke v. Thomas, 343 S.W.2d 656, 658 (Mo.App.1961). The intention of § 304, found by our Supreme Court in Bran-naker v. Transamerican Freight Lines, Inc., 428 S.W.2d 524 (Mo.1968), l.c. 529, was

to put the use and operation of leased vehicles on a parity with equipment owned by the authorized carrier and operated by its own employees.

In terms of the requirement of § 315 [U.S.C.A.] that a motor carrier secure the public against injury from the negligent operation of motor vehicles used under ICC license, § 304 denies a carrier the defense of independent contractor [Duke v. Thomas, supra, l.c. 659], renders the driver a statutory employee of the carrier [Brannaker v. Transamerican Freight Lines, Inc., supra, l.c. 535] and, on principles of vicarious liability, the carrier liable as a matter of law for the negligence of the driver of a vehicle— owned or nonowned — operated under the certificate of the carrier. Proctor v. Colonial Refrigerated Transportation, Inc., 494 F.2d 89, 92 (4th Cir. 1974); Walter v. Dunlap, 250 F.Supp. 76, 80[3] (D.C.Pa.1966), aff’d, 368 F.2d 118 (3d Cir. 1966). These provisions of law direct only that a motor carrier answer to the public for negligent injury caused by a vehicle which displays the carrier ICC decal and permit; they express no public policy that a motor carrier provide against the liability of a driver of a nonowned vehicle nor that such an undertaking — in the absence of insurance contract provision — be deemed adopted into the terms of the coverage. Wellman v. Liberty Mutual Insurance Company, 496 F.2d 131, 138 et seq. (8th Cir. 1974). Nor does endorsement eight to the Indiana Refrigerator Lines policy whereby Transport Indemnity Company agrees to pay “any final judgment against the insured” [in the terms of the endorsement, the carrier under ICC certificate] — written to comply with the express language of § 315 that a carrier under permit shall insure against “any final judgment recovered against such motor carrier for bodily injuries to or the death of any person” as result of the negligent use of a motor vehicle under the certificate— confer an omnibus coverage or extend the protection of the insurance contract beyond the carrier by any rule of implication. National Mutual Ins. Co. v. Liberty Mutual Ins. Co., 196 F.2d 597, 599[4-5] (D.C.App.1952). Insurance coverage does not arise by simulation or analogy, but from agreement. Omnibus coverage for motor carriers is also a matter of contract; in this instance, an agreement undertaken neither by the carrier or insurer. National Mutual Ins. Co. v. Liberty Mutual Ins. Co., supra, l.c. 599[4].

Teter concludes his contention of omnibus coverage by implication of policy language, analogy, and import of statute, by reference to the laws of Iowa where the casualty occurred. Section 325.26 of the Iowa Code Annotated provides that no certificate shall issue to a motor vehicle carrier until an approved insurance policy be filed to protect the public from “the operation of such motor carrier and for which such motor carrier would be legally liable.” The laws of Iowa provide also [Chapter 321A] — as do the laws of Missouri [Chapter 303, RSMo 1969] — that a motorist make proof of financial responsibility for damages caused from the ownership or use of a motor vehicle. The proof of financial responsibility contemplated by the Iowa law is by certificate of motor vehicle liability policy which [§ 321A.21(2)(b)]

[s]hall insure the person named therein and any other person, as insured, using any such motor vehicle . . . with the express or implied permission of such named insured . . . . [Emphasis added.]

Teter contends that the rescripted subsection renders omnibus coverage into every insurance policy for a motor vehicle issued in Iowa, a certificated motor vehicle carrier included, on the principle [Ward v. Allstate Insurance Company, 514 S.W.2d 576, 578[1] (Mo.banc 1974) and Benzer v. Iowa Mutual Tornado Insurance Ass'n, 216 N.W.2d 385, 388[2] (Iowa 1974)] that a statute in force at the time of formulation of contract enters integrally into the contract. That rule, however, integrates only those statutes which are “pertinent and applicable” to the contract. Ward v. Allstate Insurance Company, supra, l.c. 578[1].

The financial responsibility law of Iowa [Chapter 321A] does not bear on the law of Iowa which governs motor vehicle carriers [Chapter 325] nor, particularly, on the requirement of § 325.26 that the carrier display an approved liability insurance policy before certificate to operate shall issue.

The financial responsibility law of Iowa, as does Missouri counterpart Chapter 303, provides only that after an accident which has caused injury or damage the privilege to drive becomes suspended until the owner or operator of the vehicle makes proof of financial responsibility as prescribed by Chapter 321A of the Code. This enactment has been construed by the courts of Iowa [as has the counterpart been construed by the courts of Missouri] not as a requirement for compulsory motor vehicle liability insurance coverage but only to operate in future to remove the suspension of license imposed on account of a prior accident. Western Casualty & Surety Company v. General Casualty Company of Wisconsin, 200 N.W.2d 892 (Iowa 1972), l.c. 893 gives this rationale for the financial responsibility law of Iowa [Chapter 321 A]:

[S]uch laws apply only to a second accident and not to a first accident; . there is no requirement that the owner or operator of a motor vehicle carry a policy of liability insurance or that it contain any particular provisions unless and until the safety responsibility law has been invoked by the occurrence of some event resulting in the order of a state official that security be deposited or that proof of financial responsibility be made; that the policy must be a “required” policy before the provisions of the safety responsibility law are to be incorporated therein. [Emphasis added.]

The motor vehicle liability policy prescribed by § 321A.21(2)(b) which Teter would read into the Transport Indemnity Company policy, therefore, merely certifies proof of future financial responsibility and can impose no requirement for omnibus coverage in the absence of an official order for deposit for security for injury already done. The financial responsibility law does not void provisions of a voluntary contract of insurance, and as that issued by Transport Indemnity to Indiana Refrigerator Lines, neither required nor certified under that law. The financial responsibility law was neither “pertinent [nor] applicable” to the insurance undertaking between them and so was not imported into that agreement. Ward v. Allstate Insurance Company, supra, l.c. 578[1]. The law of Missouri fully accords with, and adopts, the Iowa statement of rationale and function of the financial responsibility law — textually identical in both enactments. Perkins v. Perkins, 284 S.W.2d 603, 609[7] (Mo.App.1955); Empire Fire and Marine Insurance Co. v. Brake, supra, l.c. 23[4].

Nor do the terms of the Iowa motor carrier law, even without other reference, impose obligation for coverage of the personal liability of the permissive user of a vehicle, owned or nonowned, of the carrier. The liability bond to be carried by the carrier under § 325.26 of the Iowa Code before certificate will issue insures against injury to the public which results only “from the operation of such motor carrier and for which such motor carrier would be legally liable.” [Emphasis added.] “The purpose of the bond is to hold the insurance liability company for the very thing the motor carrier is liable for, and nothing else . [T]he bond is required under the statute as a protection to the public for the damages recoverable against the motor carrier. It is an insurance of the motor carrier’s liability . It is properly designated by the statute as ‘a liability insurance bond.’ What liability does it insure? It can only be intended to insure the liability of its principal, the motor carrier.” Crozier v. Hawkeye Stages, 209 Iowa 313, 228 N.W. 320, 324[9, 10] (1929). In the absence of voluntary agreement between an insurer and insured to extend coverage, that law imposes no condition that the personal liability of a driver shall be secured, but only that the public shall be protected against injury from the want of proper care by the motor carrier.

We determine that the judgment of the trial court that Philp and Morris were Insureds under the policy issued by Transport Indemnity Company to Indiana Refrigerator Lines and that Transport Indemnity Company owes a defense to Morris in the suit for damages brought by the Teters and is liable for any judgment returned in that action is erroneous as a matter of law and is reversed. Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976); Rule 73.01. The only liability owed the Teters under the policy was that which accrued against Indiana Refrigerator Lines as Named Insureds. Their action against Morris is beyond the scope of the liability of the policy.

The parties brief and earnestly argue numerous other points, all of them now irrelevant to decision.

The judgment is reversed.

All concur.

      . The statutory references are to the Iowa Code January 14, 1968. Annotated in effect at the date of the casualty,

      . The liability of Indiana Refrigerator Lines, under the theory asserted in the trial court, rests on two premises: first — that Morris was ^n Insured under the policy and second — that Teter was not an employee of Morris. The second assumption is necessary to coverage because Exclusions A(2)(a) renders the policy inapplicable to liability the Named Insured may have to an employee of an Insured. We have concluded that Morris was not an Insured under the policy and so the second premise is precluded. The second assumption that Teter was not an employee of Morris, however, is not without difficulty since that finding by the trial court was in the face of an apparently contrary stipulation of fact [No. 8] that Teter was employed by Morris to make the trip as a driver-helper for 25% of the payment Morris received from Philp.


author: SWOFFORD, Chief Judge.

text:
    Donald G. BLIVEN, Appellant, v. BRUNSWICK CORPORATION, Respondent.
    No. KCD 29732.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dee. 27, 1978.
    Application to Transfer Denied Feb. 13, 1979.

      Howard E. Bodney, Kansas City, for appellant.
    Joseph E. Stevens, Jr., Eric T. Swanson, Kansas City, for respondent; Lathrop, Koontz, Righter, Clagett, Parker & Nor-quist, Kansas City, of counsel.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SWOFFORD, Chief Judge.

Appellant (Bliven), a former employee of the respondent (Brunswick), brought suit for both actual and punitive damages alleging that upon his termination as employee of Brunswick, he requested and Brunswick failed to furnish him with a “service letter” as required by Section 290.-140 RSMo 1969. Brunswick filed its motion to dismiss the action upon the basis that Bliven’s petition failed to state a cause of action. This motion was sustained by the court below and Bliven appealed. Upon such record the scope of review of the judgment is clearly defined. This Court must accept the allegations of Bliven's petition as true and in a light most favorable to him, and afford to him all reasonable inferences to be drawn therefrom. Collins v. Vernon, 512 S.W.2d 470, 475[5] (Mo.App.1974). The pleadings shall be so construed as to do substantial justice, Rule 55.24. Further, the propriety of the judgment of dismissal depends upon whether the petition invokes legal principles which, if the evidentiary facts support such principles, entitle Bliven to relief. Brennaman v. Andes & Roberts, 606 S.W.2d 462, 488[1] (Mo.App.1973). When so viewed, the record presents the following facts:

In December, 1974, Bliven was a resident of Missouri and Brunswick was a Delaware corporation with its principal office at Skokie, Cook County, Illinois, and was authorized to do business in Missouri. In that month and year, Bliven entered into an employment contract with one Wayne Dollar, District Manager for Brunswick, to be Assistant Manager of “Brunswick Gladstone Bowl”, a facility of Brunswick in Gladstone, Clay County, Missouri. The agreement for such employment was entered into in Clay County, Missouri. Bliven continued in this capacity until September of 1975, a period of nine (9) months, at which time he was transferred by Brunswick to take over the job of Manager of the “Orbit Lanes” for Brunswick at New Orleans, Louisiana, where he worked in that capacity for about five (5) months. Bliven was then transferred to the job of Assistant Manager of the “Valley View Lanes”, a facility of Brunswick at Council Bluffs, Iowa, where he served until April, 1976, a period of two (2) months. He was then transferred to the job of Manager of Brunswick’s facility “Frontier Lanes” at Wichita, Kansas as Manager, in which capacity he served until December 29, 1976, a period of eight (8) months, when he was fired or terminated by Brunswick in Wichita, Kansas. Bliven’s total period of employment by Brunswick in these four states spanned a period of approximately two (2) years. He was employed in Missouri and terminated in Kansas.

After his termination, Bliven wrote to one A1 Weiner, Vice President of Brunswick (whose address does not appear) requesting a service letter. In response, he received a letter from John R. Lauderbaek, Personnel Director of Brunswick, (whose address does not appear), advising him that his request to A1 Weiner had been forwarded to Wayne Dollar, “District Manager” (the person who had employed Bliven), and that Bliven “should be hearing from Mr. Dollar in the very near future”. Lauderback’s letter shows that copies were sent to Weiner and Dollar. Bliven did not hear anything from Brunswick nor did he ever receive a service letter as required from the company by Section 290.140 RSMo 1969. This suit was thereupon filed in June of 1977, at which time Bliven was a resident of Missouri.

The single ground stated in Brunswick’s motion to dismiss Bliven’s case is that he alleged no cause of action for the reason that Brunswick was not required to furnish a service letter under the facts since Bliven “was not, at the time of his termination of employment, an employee working in Missouri for a corporation doing business in Missouri.” (Emphasis added). The judgment in the court below sustaining the motion to dismiss, states no specific reason for such action, so it must be assumed that the court adopted Brunswick’s theory for dismissal. Vorbeck v. McNeal, 560 S.W.2d 245, 249[1] (Mo.App.1978).

Bliven asserts that the court erred in dismissing his case because at the time he was employed by Brunswick he was a resident of Missouri, the contract of employment was entered into in Missouri, Brunswick was doing business in Missouri; that he served under said contract for a period of more than 90 days (i. e. 9 months); that he was a resident of Missouri at the time of the filing of the suit, and that such facts constitute significant and sufficient contact with Missouri for the application of Section 290.140 RSMo 1969. That statute provides, in part material to this case:

“Whenever any employee of any corporation doing business in this state shall be discharged * * * it shall be the duty of the superintendent or manager of said corporation, upon the written request of such employee to him, if such employee shall have been in the service of said corporation for a period of at least ninety days, to issue to such employee a letter * * * setting forth the nature and character of service rendered by such employee to such corporation and the duration thereof, and truly stating for what cause, if any, such employee has quit such service; * * * ”

When Bliven and Brunswick, acting through its District Manager, Dollar, entered into the employment contract in Missouri, this statute became a part of such agreement. This general rule is stated in Sharp v. Interstate Motor Freight System, 442 S.W.2d 939, 945[6,7] (Mo. banc 1969), where the court said:

“ * * * It is a fundamental rule that the laws which exist at the time and place of making a contract, and at the place where it is to be performed, affecting its validity, construction, enforcement, termination and discharge, enter into and form a part of the contract as if they were expressly referred to or incorporated therein. (Many cases cited).”

This principle of contract law is often referred to as the doctrine of “lex loci con-tractus ”, State ex rel. McCubbin, Admr. v. McMillian, 349 S.W.2d 453, 468[21] (Mo.App.1961) and has been recognized as applicable to contracts of employment involving the Missouri service letter statute, Cheek v. Prudential Life Ins. Co., 192 S.W. 387, 393[7] (Mo.1917); Brink’s, Inc. v. Hoyt, 179 F.2d 355, 358[1] (8th Cir., 1950); Horstman v. General Electric Company, 438 S.W.2d 18, 20[4] (Mo.App.1969), which cites Brink’s, supra, on this principle; Cf. Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122 (Banc 1956).

There can be no argument that the Bli-ven contract of employment entered into in December of 1974 was a Missouri contract which incorporated, by operation of law, the terms and provisions of Section 290.140, supra. Nor is there any room for doubt that Bliven has alleged in his petition full compliance with its conditions, namely:

1. That Brunswick was doing business in Missouri;
2. that Bliven was in its service in Missouri for approximately nine months;
3. that he made written request for a service letter;
4. that Brunswick failed to furnish such letter; and
5. that he sustained damages as a direct result of such failure.

But Brunswick maintains that this chain was broken and that it was relieved of its obligation under the contract and under the statute by reason of the fact that it transferred the scene of Bliven’s service over a period of approximately one year and three months to three other states, and that he was terminated in Kansas. A reading of the statute fails to find any legislative requirement that all of the employee’s service be performed in Missouri or that such employment be terminated in Missouri before the terms of the statute are applicable to a Missouri employment contract. Brunswick would have this Court write such terms into the statute by decision and thus invoke a power that does not exist. In this modern day of many corporations operating in all the states and many foreign countries, if the transfer of an employee (over which he presumably has little or no control short of resignation) from one place to another would change the obligations and terms of his employment contract instanter and from time to time the doctrine of lex loci contrac-tus would be destroyed or, at the very least, rendered meaningless and impossible of application.

Brunswick (and presumably the trial court) relies solely upon the case of Horstman v. General Electric Company, supra, to support its position. Horstman is completely inapplicable to the facts before this Court. In Horstman, the plaintiff, then a resident of Missouri, was employed by a division of the defendant in the State of Kansas; performed all of his services over a period of ten years in Kansas; reported to respondent’s place of business in Kansas; “worked for respondent solely in the State of Kansas”; was discharged in Kansas; requested and obtained a “service letter” in Kansas; and then there were no contacts, so far as Horstman’s employment was concerned, in the State of Missouri. His sole basis for claiming that the Missouri service letter statute was applicable was that at the time his contract of employment was entered into in Kansas, at the time he requested a service letter, and at the time he filed suit, he was a resident of Missouri, and that the defendant was licensed to do business in Missouri, although he performed no services for it in Missouri. A motion for summary judgment in favor of the employer was sustained and upon appeal to this Court was affirmed, the judgment holding that Horstman’s employment contract under the facts in that case was a Kansas contract and the Missouri service letter statute was inapplicable and had no extraterritorial effect. In the case before this Court, Bliven had significantly greater and, indeed, decisive, contacts and nexus with Missouri.

Hortsman is inapplicable to this case.

Many different employment situations can be argued by analogy pro and con and counsel have done so in their briefs. For example, Bliven hypothesizes a situation where a Missouri employee is transferred into another jurisdiction for the sole purpose of discharge in order to avoid the service letter statute. And Brunswick counters by hypothesizing a situation where a transferred employee works in another jurisdiction for twenty years before discharge. Such endeavors are fruitless since each case must be judged upon its own facts toward the ever present (and sometimes elusive) goal of substantial justice.

In this case and under the facts pled, the conclusion is inevitable that Bliven pled a cause of action under the Missouri service letter statute, that Brunswick violated its contract, and the court erred in sustaining Brunswick’s motion to dismiss.

The judgment is reversed and the cause remanded with directions to reinstate Bli-ven’s cause of action.

All concur.


author: TURNAGE, Judge.

text:
    Ruben M. CONCHOLA, By and Through his mother and next friend, Mrs. Connie Conchola, Respondent, v. Donald E. KRAFT and Churchill Truck Lines, Inc., Appellants.
    No. KCD 29540.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.
    Rehearing Denied Dec. 27, 1978.

      William H. Sanders, Thomas W. Wag-staff, Charles A. Schliebs, Kansas City, for appellants.
    Anthony J. Romano, Louis J. Sill, Jr., Kansas City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Ruben Conchóla, age 14, brought suit by his mother as next friend against Donald Kraft and Churchill Truck Lines for personal injuries. The jury returned a verdict in favor of Ruben for $20,000 and his mother for $2,000. On this appeal Kraft and Churchill allege the following errors: (1) allowing an amendment to the petition on the day of trial; (2) permitting a physician to testify whose name had not been revealed through supplementation of interrogatory response; and (3) the verdict was excessive. Affirmed.

Kraft and Churchill do not raise any question concerning the finding of negligence on their part. Briefly stated, Ruben was a passenger on a motorcycle when a Churchill single-axle trailer unit driven by Kraft ran a stop sign and pulled out in front of the motorcycle. Ruben’s cousin, the operator of the motorcycle, was forced to stop suddenly to avoid striking the trailer unit and the cycle overturned on top of the two boys. Reference to Ruben’s injuries will be made in discussion of the third point.

In their first point Kraft and Churchill contend the court erred in allowing Ruben to amend his petition for damages on the morning of trial. The allegation in the motion for a new trial complained of the court granting leave to amend the prayer of the petition by increasing the amount of damages sought from $2,500 to $125,000. However, in their brief Kraft and Churchill urge error in allowing the petition to be amended to include an allegation that Ruben would be required to undergo surgery. The ad damnum amendment is mentioned only in regard to the amendment concerning surgery and the entire argument is directed at the unfairness of an amendment which for the first time alleged the necessity of surgery. Such an amendment may not be noticed on this appeal because it was not presented to the trial court in the motion for a new trial. Rule 78.07; Cato v. Modglin, 545 S.W.2d 307 (Mo.App.1976).

At any rate the propriety of granting leave to amend a petition is wholly discretionary with the trial judge and may not be questioned on appeal absent a clear abuse of discretion. Kallenbach v. Varner, 502 S.W.2d 446, 448[2-4] (Mo.App.1973). This likewise applies to an amendment of the prayer for damages. 71 C.J.S. Pleading, § 293, p. 666. No effort has been made to demonstrate an abuse of discretion with reference to the damages amendment and none is discerned.

The accident occurred September 25, 1974, and Kraft and Churchill propounded interrogatories in August, 1975. About a month after answering the interrogatories, Ruben for the first time consulted Dr. Gordon Thorn, who made four reports concerning Ruben’s condition between his first examination and the trial. Ruben’s counsel did not supplement the answers to interrogatories to include Dr. Thorn’s name as a physician consulted with reference to his injuries. Dr. Thorn testified that there is a reasonable medical probability Ruben will have to undergo a spinal fusion. There was no objection made when Dr. Thorn was called as a witness. In fact, the direct examination of Dr. Thorn covers about 32 pages of the transcript and the cross-examination 21 pages. During all that time no objection was made. The first objection to Dr. Thorn appearing as a witness was made in the motion for a new trial when it was alleged the court erred in allowing the doctor to testify because his name had not been revealed to Kraft and Churchill through supplemental answers to interrogatories. Kraft and Churchill now argue that their objection to the amendment of the petition, alleging for the first time the necessity of an operation, was sufficient to raise an objection to Dr. Thorn’s appearance as a witness.

The record does not show an objection to the amendment of the petition because this was made at an in-chambers conference and the reporter’s notes on this conference were lost. However, assuming an objection was made to the amendment, it is apparent this would not suffice as an objection to the appearance of Dr. Thorn. The amendment of the petition went only to the issues to be tried and not to the witnesses who would prove those issues. It is conceded that no objection was ever made to the trial court concerning the appearance of Dr. Thorn. Thus, any objection to the appearance of Dr. Thorn was waived. Galovich v. Hertz Corp., 513 S.W.2d 325, 336 (Mo.1974). In Galovich the court held an objection was waived to the appearance of a witness whose name had not been furnished either by interrogatory answer or by supplemental answer because the objection was made after the witness had testified on direct examination. Here no objection was ever made to the appearance of Dr. Thorn, the first mention appearing in the motion for a new trial. Under the holding in Galo-vich, any objection Kraft and Churchill had to the appearance of Dr. Thorn was waived.

Kraft and Churchill also contend the verdict was excessive because the jury erred in weighing the evidence as to the nature and extent of injuries. This requires a review of the evidence concerning Ruben’s injuries. Immediately after the accident Ruben was taken to the Bethany Medical Center emergency room where he was examined, x-rayed and released. About 23 days later, Ruben saw Dr. Moreano who referred him to Dr. Gottsch. Dr. Gottsch examined Ruben and made a diagnosis of probable soft tissue strain to the dorsal and lumbar spine, probable soft tissue sprain and contusion to the right hip, and probable soft tissue strain and contusion of the right thumb.

Ruben first saw Dr. Thorn in October, 1975. On his first examination, Dr. Thorn found Ruben to have a 10-15 percent limitation of bending from side to side and positive straight leg raising to 80 degrees. He also found a pre-existing spondylolysis of the fifth pars interarticularis which was asymptomatic prior to the accident. Dr. Thorn made a diagnosis of lumbosacral instability with chronic lumbosacral strain and that the injury of September, 1974, had aggravated the pre-existing back condition. Dr. Thorn indicated Ruben would be unable to participate in sports or to do any lifting or bending required in a labor-type job. In Dr. Thorn’s second report in January, 1976, he suggested Ruben obtain a lumbosacral support to determine if it offered any relief. In his third report, in March, 1976, Dr. Thorn stated the back brace seemed to offer some relief but he still believed Ruben suffered from lumbosacral instability due to the soft tissue back injury received in the accident. He stated Ruben’s prognosis was guarded and spinal fusion surgery would probably be required. In his last report in August, 1976, Dr. Thorn noted Ruben continued to have pain when he exerted himself by bending, stooping and lifting. He recommended Ruben continue using the brace and again noted the possible necessity of a spinal fusion. After examining Ruben the day prior to the commencement of trial, Dr. Thorn testified that within a reasonable medical probability, Ruben would require spinal fusion surgery.

Ruben testified he had lower back pains following the accident and that he had had no pain prior to this injury. Ruben also stated he had been active, participating in sports such as weight lifting, football and basketball and ■ performing chores around the house, but since the accident he was unable to compete in any sports. He further stated he had formerly played the drums in a band but was now unable to do so because of the injury and he had to take pain pills and nerve pills because of the pain in his hip.

There was evidence that the cost of a spinal fusion would total approximately $2,450 and require a rehabilitation period of six months to a year. The medical expenses incurred to the date of trial totaled $516.43 and Ruben’s mother testified she had also purchased drugs amounting to about $300.

In reviewing the injuries under an allegation that the verdict is excessive, this court is required to view the evidence in the light most favorable to the plaintiff. Blond v. Overesch, 527 S.W.2d 663, 672 (Mo.App.1975). The factors to be considered in determining whether or not a verdict is excessive are fully set out in Woodford v. Illinois Central Gulf Railroad Company, 518 S.W.2d 712, 718[13-17] (Mo.App.1974) and, as this court observed in Blond, the law rightly vests broad discretion in the jury to fix the amount of an award. A further factor to be considered is the refusal of the experienced trial judge to order a remittitur. Ricketts v. Kansas City Stock Yards of Maine, 537 S.W.2d 613, 621 (Mo.App.1976).

Finally, this court must consider what amount would constitute fair and reasonable compensation for Ruben’s injuries within a uniform limit for compensation for comparable injuries and in view of the growth of inflation. Worley v. Tucker Nevils, Inc., 503 S.W.2d 417, 423[12-14] (Mo. banc 1973).

Viewing the evidence of Ruben’s injuries in the light most favorable to him and bearing in mind the refusal of the trial judge to order remittitur, this court cannot hold as a matter of law that the verdict is excessive. With reference to uniformity in verdicts, this court notes Rhodenberg v. Nickels, 357 S.W.2d 551 (Mo.App.1962) in which a verdict of $14,070 was approved, without any evidence as to the necessity of a spinal fusion, for back injuries sustained by a sixteen year old boy. Considering the rate of inflation since 1962, this court cannot say the verdict in the present case is not uniform with the amount approved in Rho-denberg.

The judgment is affirmed.

All concur.


author: STEWART, Presiding Judge.

text:
    CITIZEN’S ELECTRIC CORPORATION, Plaintiff-Appellant, v. Robert W. AMBERGER et al., Defendants-Respondents.
    Nos. 38765, 38773, 38774 and 38775.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 28, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 12, 1979.
    Application to Transfer Denied Feb. 13, 1979.
    Hannegan & Knight, Claude C. Knight, St. Charles, for plaintiff-appellant.
    Buerkle, Buerkle & Lowes, Albert C. Lowes, Jackson, for defendants-respondents.
   STEWART, Presiding Judge.

Condemnation proceedings in which plaintiff, an electrical utility company, was awarded easements over numerous parcels of property in Perry County.

Exceptions of plaintiff and defendants Amberger, Huber, Hornberger and Moll were tried by the court. Plaintiff appeals from the judgments assessing damages with respect to the four parcels of these defendants. The appeals have been consolidated for our consideration. We reverse and remand.

By the proceedings plaintiff obtained easements 100 feet in width across the lands of various defendants. The petition provides that the perpetual easement is for the “purpose of erecting, constructing, reconstructing, keeping, operating, inspecting, patrolling and maintaining, a line or lines consisting of poles, towers, crossarms, wires, cables, transformers, anchors, guy wires and appurtenances ... in order to transmit and distribute electric energy, or other power, together with the right . to construct, reconstruct, erect, place, keep, operate, maintain, inspect, patrol, add to, change the type of construction of and relocate at will said transmission lines across, upon, through, over and under said easement or right of way and with the further right, permission and authority to trim, cut and remove, by any means whatsoever, from said premises or the premises of the defendants adjoining the premises sought to be condemned, any trees, overhanging branches or obstructions which may endanger the safety of or interfere with said transmission lines; and together with the right of ingress to and egress from the premises sought to be condemned on such premises or the premises of defendants adjoining the premises sought to be condemned at any and all times for the [purposes set out] . . . and the right of traveling over said premises sought to be condemned for the purpose of gaining ingress to and egress from the rights of way or easements owned by Plaintiff over lands adjacent to the ends thereof for the purpose of doing anything necessary or convenient for the enjoyment of the easement . ..”

It is further provided that “Except for the area required for said transmission lines, and the rights Plaintiff needs and seeks to acquire as alleged, the balance of defendant’s lands and said right of way or easement upon and across said real estate will not actually be appropriated by plaintiff but will remain for such use by defendants as will not endanger or interfere with or create a hazard or obstruction to said transmission lines and the right plaintiff needs and seeks to acquire as alleged, except that the said defendants shall not have the right to erect or construct any buildings or structures upon said right of way.” Plaintiff further covenanted that it would not fence or enclose the right of way.

At the time of the trial the construction of the lines had been completed.

The determinative issues of these appeals are common to each parcel of property, the extent of the easements and the valuations differ. The basis of the value of the various properties before the taking is comparable sales. The sales used are common to the appraisal of plaintiff’s expert witness and the expert witnesses called by the defendants.

The Amberger Tract is illustrative of the issues common to each of the cases before us. This tract has a total of 176 acres. The easement covers 7.42 acres. Plaintiff set 13 poles and one anchor on the easement. Mr. Amberger testified that the value of the farm before the taking was $120,000.00. After the taking it was worth $100,000.00 resulting in a loss of $20,000.00. In determining the depreciation he considered that he had to cut 150 trees. He used some of the timber for fencing and sold the remainder for $1,500.00. Other factors considered in the valuation were the unsightliness of the poles, the compaction of the soil by reason of the construction. It was difficult to use four row farm equipment because of the poles. He also made reference to fence damage. The transcript is not clear as to just what if any damage was sustained to his fences.

Mr. Hoehn, Mr. Kassel and Mr. Meyer were called as appraisers on behalf of Am-berger. They placed the value of the farm before the appropriation at between $123,-000.00 and $132,000.00 and that the property was reduced in value by $10,224.00 to $11,535.00.

They all testified that factors considered by them included the value of the land before and after taking, the value of the land taken, damages to the property such as fencing, compaction of the soil on the easement, the difficulty of operating farm machinery around the poles and consequent weed infestation, the inability to have the crops sprayed by aircraft, unsightliness of the poles and frequency of entries on the land.

Mr. Hoehn testified he reached his conclusion as follows:

Damage to fencing at $2.00 per foot 2,656.00
Damage to remainder attributed to unsightliness, loss of income and frequency of entry 2.112.00
$10,333.00

Mr. Kassel and Mr. Meyer determined the damages to the tract as follows:

Damages for taking at:
$ 5,379.50 $725 per acre
$ 5,194.00 $700 per acre
Damages to 1328 feet of fencing:
2,988.00 $2.25 per foot
2,656.00 $2.00 per foot
Loss of income for:
2,968.00 7 years
2,374,00 5 years
$11,535.50 $10,224.00

Plaintiff’s expert witness opined that the damages to the Amberger farm was $2,600.00. He reached his conclusion by multiplying one-half the per acre value of the farm ($300.00) by the number of acres covered by the easement (7.42) and' rounded out the figure.

The judgment of the court with respect to the Amberger Tract reads as follows:

“Tract 8, Robert W. Amberger Tract— The Court assessed damages in the total amount of $7998.40, which the Court arrives at on the following basis:
“There was taken 7.42 easement acres according to the evidence, and the Court believes that the damages to those acres, considered as a whole, amounts to $400.00 per acre or a total assessment of damages of $2,968.00; there was evidence adduced that there was damage to fencing involving 1328 feet, and the Court believes that $2.00 per foot is a fair figure for that, or total damages re fencing of $2656.00. The Court believes that there will be an income loss suffered by the landowner by reason of this for a period of five years, and the Court places a value of $2374.40 on said damage, and these total the aforementioned figure.”

Kamo Electric Cooperative, Inc. v. Baker, 287 S.W.2d 858 (Mo.1956) contains a comprehensive discussion of the law that governs this case, and is the authority for all of the principles of law set out herein, unless otherwise indicated.

Preliminary to our discussion we review the applicable principles. Where, through condemnation, part of a tract of land is burdened with a perpetual easement the compensation (damages) to which the owner is entitled is “the difference, if any, between the fair and reasonable market value of the entire tract of land before and after the appropriation of the part,” as of the time of the appropriation.

In assessing damages to the entire tract it is proper for the fact finder to take into consideration that the condemnor is going to erect transmission lines and that it has required the right to enter upon the right of way to operate, maintain and patrol the line. In considering these factors it must be presumed that the condemnor will fully exercise the rights acquired and that it will act in a proper and lawful manner.

As said in Kamo l. c. 862:

“When the electric transmission line had been constructed at the time of the trial the actual damage that was done by the condemner on the right of way during the construction of the transmission line may be shown as evidence of the extent of the burden cast upon the land at the time of the appropriation, provided that the acts were not tortious and the damage could have been reasonably anticipated.”

The date of taking in the cases at bar was August 14, 1975. The case was tried on November 17, 1976 after the construction had been completed. The trial court could consider the damages occasioned to the land by plaintiff in the lawful use of the right of way which it had acquired. These damages may be considered for the purpose of showing the extent of the burden upon defendant’s entire tract at the time of appropriation. They may not be considered as separate items of damages in determining the amount of compensation due the defendant. Kamo at Page 863. In this case the court assessed loss of profits arising from the damages occasioned by compaction of the soil as a separate item of damages. In assessing loss of profits as a special item of damages the judgment is against the law.

As noted above the court also assessed damages to defendant’s fence as a special item in the sum of $2,656.00. It is clear from Kamo that if the fences were damaged and were not repaired the acts were tortious and the resulting damages are not cognizable in this action. The court misapplied the law with respect to this issue. We note in passing that the testimony of the owners with respect to damage to fences in each of the cases was too vague to permit a finding with respect to damages. The testimony of the appraisers adds nothing to the testimony of the owners. The judgment cannot stand.

Each of the cases involved in this appeal is tainted by the deficiencies noted above. It would only unduly lengthen this opinion to discuss each case individually, the judgments all contained the same elements of damage that requires reversal of the judgment with respect to the Amberger Tract.

For the reasons stated herein the judgments of the trial court in these cases are reversed and remanded for a new trial in accordance with the principles delineated in Kamo.

REINHARD and STEPHEN, JJ., concur.

      . The following occurred in the testimony of Mr. Amberger:
      “Q. After they finished with construction did they leave the fences in good shape, or you got fence troubles?
      A. Well, they’re not as good as they were.
      Q. You gonna have to do somethin’ with ’em?
      A. I will, yes, sir.”

      . [Defendant’s attorney] “Q. And was the fence destroyed?
      A. [Mr. Hoehn] The fence is repaired now, as I saw it, there is some damage to it. There has been — there is evidence of some damage. What I base my opinion on, when a heavy construction crew comes in and puts a fence along a quarter mile of land sitting cold, bringing in the equipment, I think that we would all agree that that strip of fence needs some work, replaced, or whatever it would be.
      Q. Okay. But this whole shot of land down here is, is, the total easement goes across down by 1328 feet of fencing, is that correct, down on — Let me show you Plaintiffs exhibit No. 4. You are talking about a fence from the edge of his property all the way down a total of 1328 feet?
      A. No. This is the part that I considered here. Q. Okay. Just that one part, the part, I guess, to the most left side between—
      A. Well, there’s other damages here, here and here.
      Q. I see.
      A. But this was the part that I considered.”
      Mr. Kassel testified only to the cost of fencing. He did not testify that it had been damaged. Mr. Meyer testified, “. . . the 1300 plus feet of fencing that will have to be maintained and replaced and can be replaced and repaired from time to time should they be destroyed, or in all probability will be opened, that will come out at $2,656.00, . .

      .“Tract 9, Jesse Huber Tract — The Court assesses damages in the total amount of $4190.00, which the Court arrives at on the following basis:
      “There was taken 3.12 easement acres according to the evidence, and the Court believes that the damages to those acres, considered as a whole, amounts to $350.00 per acre or a total assessment of damages of $1092.00; there was evidence adduced that there was damage to fencing involving 1050 feet, and the Court believes that $2.00 per foot is a fair figure for that, or total damages re fencing of $2100.00. The Court believes that there will be an income loss suffered by the landowner by reason of this for a period of five years, and the Court places a value of $998.00 on said damage, and these total the aforementioned figure.
      “Tract 10, Theodore Homberger Tract — The Court assesses damages in the total amount of $5154.50, which the Court arrives at on the following basis:
      “There was taken 6.35 easement acres according to the evidence, and the Court believes that the damages to those acres, considered as a whole, amounts to $350.00 per acre or a total assessment of damages of $2222.50; there was evidence adduced that there was damage to fencing involving 450 feet, and the Court believes that $2.00 per foot is a fair figure for that, or total damages re fencing of $900.00. The Court believes that there will be an income loss suffered by the landowner by reason of this for a period of five years, and the Court places a value of $2032.00 on said damage, and these total the aforementioned figure.
      “Tract 11, the Otto Moll Tract — The Court assesses damages in the total amount of $2930.10, which the Court arrives at on the following basis:
      “There was taken 3.03 easement acres according to the evidence, and the Court believes that the damages to those acres, considered as a whole, amounts to $350.00 per acre or a total assessment of damages of $1060.50; there was evidence adduced that there was damage to fencing involving 450 feet, and the Court believes that $2.00 per foot is a fair figure for that, or total damages re fencing of $900.00. The Court believes that there will be an income loss suffered by the landowner by reason of this for a period of five years, and the Court places a value of $969.60 on said damage and these total the aforementioned figure.
      “The Court further finds that the total damages assessed with respect to each tract above was clearly based on the evidence, and the Court in the last analysis has measured that as the total damage for each tract. The Court finds from the evidence produced by the landowner, which its credits, that the total damages were significantly more than contended by the Citizens Electric, and that the damages are as respect to each tract as assessed above.”


author: GUNN, Judge.

text:
    Larry W. FREEMAN, Appellant, v. STATE of Missouri, Respondent.
    No. 39637.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 5, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 12, 1979.
    Application to Transfer Denied Feb. 13, 1979.

      James Porter, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for appellant.
   GUNN, Judge.

Movant entered pleas of guilty to five charges of first degree robbery and two charges of assault with intent to kill with malice. He was sentenced to a 25 year term on each charge except for 15 year terms on two of the robbery charges. The sentences were to be served concurrently. His Rule 27.26 motion to set aside and vacate the judgment was denied after eviden-tiary hearing. He appeals the denial on the ground that the pleas were involuntary, in that: (1) he failed to receive effective assistance of counsel by reason of counsel’s failure to- interview witnesses; (2) there was lack of understanding of the charges; (3) he believed he would receive a life sentence if he insisted on a jury trial; (4) there was no adequate determination that the pleas were voluntary. Movant’s contentions are absolutely without merit or, justification, and " we affirm the trial court’s ruling.

The record of proceedings of mov-ant’s guilty pleas firmly establishes that they were knowingly and voluntarily made. The trial judge questioned the movant in exhaustive detail as to the charges against him, his understanding of the charges and whether he voluntarily wished to withdraw pleas of not guilty. From the record of proceedings, it is positive that movant was totally aware of his rights and the consequences of his pleas; that no promises had been made to him in exchange for the guilty pleas. Further, movant fully inculpated himself in the crimes as charged. The record absolutely refutes movant’s contentions that his pleas were not knowingly or voluntarily made, and no error occurred in denying his 27.26 motion. Rice v. State, No. 39300 (Mo.App. St.L.Dist., Oct. 24, 1978); Jackson v. State, 572 S.W.2d 181 (Mo.App. St.L.Dist., 1978); Breeland v. State, 568 S.W.2d 564 (Mo.App.1978); Haynes v. State, 565 S.W.2d 191 (Mo.App.1978).

Movant’s contention that he did not receive adequate assistance of counsel by reason of his trial attorney’s failure to interview witnesses is belied by the record. Movant never indicated to his counsel that any defense witnesses existed. But further, effectiveness of counsel on a guilty plea is immaterial except as it affects mov-ant’s understanding and voluntariness of his plea, which, in this case, was no factor. Rice v. State, supra; Jackson v. State, supra; Haynes v. State, supra; Keller v. State, 566 S.W.2d 260 (Mo.App.1978); Rogers v. State, 564 S.W.2d 576 (Mo.App.1978).

Finally, movant’s assertion that his guilty pleas were not voluntary as they were based on his belief that he would receive a life sentence if he did not so plea is not a basis for relief. The decision to plead guilty is not rendered involuntary even if influenced by fear of greater punishment if the plea were not made, Barber v. State, 564 S.W.2d 914 (Mo.App.1978), nor, if made, in expectation of lighter punishment. McMahon v. State, 569 S.W.2d 753 (Mo. banc 1978). The record also positively shows that no threats of greater punishment or promises of lighter punishment were made to obtain movant’s pleas of guilty.

No error appears in the denial of mov-ant’s motion, and the judgment is affirmed.

REINHARD, P. J., and CLEMENS, J., concur.