author: ANDREW JACKSON HIGGINS, Special Judge. SEILER, Judge,

text:
    Carl Edward MYERS and Movelda Myers, Plaintiffs-Respondents, v. BI-STATE DEVELOPMENT AGENCY, Defendant-Appellant, and Norfolk and Western Railway Company, Defendant-Respondent.
    No. 60358.
    Supreme Court of Missouri, En Banc.
    June 15, 1978.
    Rehearing Denied July 24, 1978.

      James E. Hullverson, Stephen Ringkamp, St. Louis, Mo., for plaintiffs-respondents.
    John D. Schneider, St. Louis, Mo., for defendant-appellant.
    Albert E. Schoenbeck, Stephen M. Scho-enbeck, St. Louis, Mo., for defendant-respondent.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal on transfer by order of the Supreme Court after opinion by the Court of Appeals (Rule 83.03), from verdicts and judgments in favor of Carl Edward and Movelda Myers against Bi-State Development Agency on his claim for damages for personal injuries and her claim for damages for loss of consortium against Bi-State and Norfolk and Western Railway Company. The questions (Rule 83.09) are whether the court erred in giving plaintiffs’ verdict-directing instructions against Bi-State, in ruling on plaintiffs’ cross-examination of Bi-State’s doctor, in exclusion of evidence relating to brakes proffered by Bi-State, in allowing plaintiffs’ evidence and argument relative to use of sick leave compensation accumulated by Carl Myers, and in admission of a St. Louis ordinance relative sounding of train whistles on behalf of NW. Affirmed.

Plaintiffs’ action arose from a collision December 11, 1973, at the intersection of Goodfellow Avenue and NW tracks in the City of St. Louis between a southbound Bi-State bus and an eastbound NW train. The intersection is guarded by railroad crossing signals, one located in each of the northwest and southeast quadrants. Each signal consists of circle cross-buck signs mounted atop a pole standard. One arm of each cross-buck says “RAILROAD,” the other “CROSSING.” Below the cross-buck on each standard are four red flasher lights, two showing to the north and two to the south. The lights flash alternately when electrically activated by a train on the track within one-fourth mile of the crossing. Below the flasher lights on the face of each standard is a square sign which says: “STOP ON RED SIGNAL.” A southbound motorist on Goodfellow approaching the crossing would be faced with the crossing signal and two of its flasher lights in the northwest quadrant to his right, and with two of the flasher lights on the crossing signal in the southeast quadrant on his left.

Prior to the collision, Bi-State’s bus had been traveling south on Goodfellow and had stopped one block north of the railroad crossing. As the driver left that stop, he saw the red lights flashing on the railroad crossing signals. He began to apply his brakes when between 60 and 100 feet from the crossing. He saw the train when he was between 30 and 50 feet from the crossing and continued to slow his bus. After nearly stopping at about 10 feet from the crossing, the driver accelerated the bus to beat the train across the intersection. He failed in his attempt and the bus was struck in its right rear quarter by the train. The driver said he accelerated because his brakes did not seem to be working right and he thought he could not stop the bus in time. The brakes had been working properly prior to that time, and tests performed after the collision revealed no mechanical malfunction. As the train approached the Goodfellow crossing, it was being slowed by its regular brakes. When the bus accelerated, the engineer, upon warning from his student engineer and brakeman, set the emergency brakes which further slowed but did not stop the train. Testimony conflicted on warnings sounded by the train.

Carl Myers was thrown from his seat in the bus by the collision and received injuries to his ribs and lungs. He was off work for several months and used some 500 hours of accumulated sick leave. While at home he was cared for by his wife Movelda. The medical evidence conflicted on permanent injuries, particularly permanent partial lung dysfunction.

Plaintiffs’ claims against Bi-State were submitted by Instructions 3 and 4, identical except for names:

“Your verdict must be for plaintiff Carl Myers against defendant Bi-State Development Agency if you believe:
“First,
defendant Bi-State Development Agency either: failed to keep a careful lookout, or violated the railroad crossing signals, and
“Second,
defendant Bi-State Development Agency’s conduct, in any one or more of the respects submitted in paragraph First, was negligent, and
“Third,
such negligence directly caused or directly contributed to cause damage to plaintiff Carl Myers.
“The term negligence as used in this instruction means the failure to use that degree of care that a very careful and prudent person would use under the same or similar circumstances.
“M.A.I. 17.02 modified; 11.02. Offered by Plaintiffs.”

The jury’s verdicts were against plaintiffs and in favor of NW; and for plaintiffs and against Bi-State for $62,500 for Carl Myers and $5,000 for Movelda Myers. Judgments were entered accordingly.

Appellant charges the court erred (I) in giving plaintiffs’ verdict-directing instructions against Bi-State “because this Not-in-MAI instruction improperly creates a duty contrary to law in an argumentative and inflammatory form inferring that failure to heed a [the] warning was a punishable and inherently illegal act giving a privately erected warning device the appearance of the force of law.” Appellant argues that the instructions submitted an issue which does not exist under the law because such signals do not carry the force of law, were not established by the State or its political subdivision, and that there is no statute or ordinance which makes it a crime or offense to- pass through such a privately erected warning device. Appellant suggests that plaintiffs’ claims would have been properly submitted on failure to stop after danger of collision was apparent in form MAI 17.04.

The difficulty in this contention is that plaintiffs’ submissions against Bi-State conform to Missouri’s scheme for the instruction of juries under Rule 70.

The evidence may have warranted other submissions; however, plaintiffs were entitled to submit their claims as they saw fit within limitations imposed by the evidence. Instructions 3 and 4, supported by evidence, are MAI 17.02, mandated for submission of multiple negligent acts, and they include as one of two negligent acts “violated the railroad crossing signals” as authorized by and in the language of MAI 17.01, for submission of “violated the traffic signal,” together with the requisite definition of “negligence” of MAI 11.02. Nothing in MAI limits use of MAI 17.01 to situations involving “statutory” traffic controls. A “traffic signal” is an electrically operated signal such as a system of colored lights for warning and controlling traffic. Brittain v. Clark, 462 S.W.2d 153, 156 (Mo.App.1970). See also Silvey v. Missouri Pacific Railroad Co., 445 S.W.2d 354 (Mo.1969), for approval of submission of plaintiff’s contributory negligence in a truck and train crossing collision by use of “failed to heed the electric flasher warning signals.” Note that among meanings ascribed to “violate,” Webster’s Third New International Dictionary defines the term as “to fail to keep: BREAK, DISREGARD”; and that one can “violate the standard of ordinary care,” Miller v. F. W. Woolworth Co., 328 S.W.2d 684, 689 (Mo. banc 1959).

Instructions 3 and 4 did not equate “violated the railroad crossing signals” with “violated the law.” They instructed the jury that if it believed that Bi-State “violated the railroad crossing signals,” i. e., that Bi-State failed to heed or disregarded such signals, and that such was negligence as defined, and, if so, that such negligence caused damage to plaintiffs, then the jury was to find for plaintiffs.

Nor did Instructions 3 and 4 submit negligence per se. See MAI 17.17 and 17.18 for submissions of per se negligence; and note again that paragraph Second of Instructions 3 and 4 required a finding that “violated the railroad crossing signals” was negligence before the jury could return verdicts for plaintiffs.

Appellant charges the court erred (II) in failing to sustain objection to a cross-examination question put to Bi-State’s doctor relative a pulmonary function test of Carl Myers “because that question assumed a fact not in evidence and thereby denied [Bi-State] a fair trial on the issue of whether the plaintiff had a permanent loss of lung function.”

Dr. A. J. Steiner had treated Carl Myers and his family for a number of years. In his opinion, Mr. Myers had lost 35% of the use of his right lung as a result of injuries received in the Bi-State and NW collision. Part of the basis for his conclusion was two breathing tests which he performed, one in March 1974, which showed decreased ability to take air, and an exercise ability test in September 1974. Bi-State cross-examined Dr. Steiner with respect to performance of a “pulmonary function test” referred to later by Bi-State’s doctor, Belmont R. Thiele, M.D. Dr. Thiele stated that the best way to measure loss of lung function was to use a pulmonary lung machine producing a graph and chart of lung capacity. In Dr. Thiele’s opinion, Carl Myers had suffered no loss of use of his right lung. Dr. Thiele was cross-examined by plaintiffs; and from this background, appellant, in support of his contention, asserts “the following is the pertinent record”:

“Q [By Mr. Hullverson] You knew the final test, if there is a pulmonary disorder, is to take the pulmonary tests? A Not in a case like this. Q Were you looking for lung damage, you could have known what the lung damage was in his case, you could have sent him down tWe street? A I could have. Q Do you know they were made by Dr. Steiner? MR. SCHNEIDER: That is not true. MR. HULLVERSON: That is what Dr. Steiner testified. MR. SCHNEIDER: That is not what he testified to. THE COURT: The ladies and gentlemen of the jury will be governed by the testimony.
“MR. SCHNEIDER: I am objecting. I want my objection on the record, and ask for a ruling of the Court in that regard. THE COURT: Overruled.
“Q [By Mr. Hullverson] Did you know Dr. Steiner had run tests on this man’s lungs, in order to evaluate, by graph and chart, what kind of di sfunction there was, and he found a disability, I think he said, of 30 percent of the lung? A No. Q But you did not order pulmonary function test, did you, Doctor? A That is correct. MR. HULLVERSON: That is all.”

The foregoing quotation from the record demonstrates that defendant did not preserve by specific objection to the trial court the point now urged for appellate review. Rule 84.13(a).

Appellant contends (III)(A) that “the error briefed in Point II * * * resulted in an excessive verdict”; and (III)(B) that the verdicts “are grossly excessive because the remaining damage evidence, excluding alleged loss of lung function, support only an initial painful injury which had healed, and therefore the verdicts are clearly disproportionate to the evidence demonstrating that the falsely assumed fact substantially determined the amount of the verdict.”

The failure to preserve the error charged in Point II leaves nothing for review under this contention. It may not be said that plaintiffs’ damages are without support. Carl Myers experienced immediate pain on his right side when thrown about in the bus; he could not breathe or lift his head. In the hospital, he struggled to breathe and breathing caused pain. At trial in June, 1975, he was never without pain in his back, neck, and shoulders, tenderness, discomfort, and inability to breathe deeply. Such pains worsen in damp or cold weather, or when confined to one position. He experienced psychiatric problems with depression, tears, and loss of self-confidence. His immediate injuries produced shock, cyanosis, four broken ribs, and a puncture and collapse of his right lung. He sustained a pneumothorax and a hemotho-rax, the latter requiring removal of a quart of blood. He suffered for a time from a kidney injury. He lost 35 per cent of the use of his right lung and sustained thickening of the pleura over one third of the lung with loss of chest expansion and had bad breath sounds. His ability to fight colds had lessened; he will have pain and suffering in the future. He used sick leave benefits equaling approximately $5,000. He had hospital and doctor bills totaling $2,392. He was 36 years of age at trial with a life expectancy of 37.78 years. He could not work for three months, his energy is gone, he has problems with stairs, shortness of breath, and cannot complete normal household chores or otherwise enjoy normal life. He had none of these problems before the collision. Mrs. Myers took care of her husband while he was confined to his home, and her husband is partially permanently disabled as a result of the collision.

Appellant charges the court erred (IV) in excluding evidence sought to be developed upon cross-examination of NW’s expert witness to effect that a piece of sand in the brake valve can cause a brake failure which could go undiscovered upon an inspection of the brakes. Appellant admits that if its purpose had been to prove that its bus actually had sustained a brake failure because of sand in the system just before the collision, the evidence was properly excluded as speculative in that there had been no showing of sand in the collision area or other showing to support such question. Appellant argues, however, that the evidence was proper to counter the weight of prior evidence that an inspection showed no defects in the bus brakes and to show that the bus driver was not lying when he said his brakes had failed.

This contention fails under the rule that opinion testimony of an expert witness must be based on facts in evidence and may not be a guess. Crystal Tire Co. v. Home Service Oil Co., 525 S.W.2d 317, 324[9] (Mo. banc 1975); Harp v. Illinois Central Railroad Co., 370 S.W.2d 387, 391[1-3] (Mo.1963). See Pollard v. General Elevator Engineering Co., 416 S.W.2d 90, 95[1-4] (Mo.1967); Citizens Bank of Festus v. Missouri Natural Gas Co., 314 S.W.2d 709, 715-716[4] (Mo.1958). There were no facts in evidence to support a question whether sand could cause a brake failure. That the effect was to show that a brake failure might have occurred due to sand increased the speculation and confusion surrounding the question. An expert witness may be questioned on facts not in evidence to test his qualifications, credibility, and skill, Stafford v. Lyon, 413 S.W.2d 495, 498-499[6-9] (Mo.1967); but such was not Bi-State’s purpose.

Appellant charges the court erred (V) in allowing evidence and argument that plaintiff could be compensated for use of his accumulated sick leave at some future wage rate “because there was no evidence from which the jury could determine with reasonable certainty whether the plaintiff would ever sustain a loss, nor was there any evidence from which to calculate with reasonable certainty the future inflated wage rate.”

This contention fails under the rule, followed except in a few situations, which requires that whenever there .is an allegation of error which pertains only to the issue of damages, appellant must brief a separate point demonstrating that the verdict was excessive as a result of that particular allegation of error. Rule 84.04(d); Chambers v. Kansas City, 446 S.W.2d 833, 840-841[12-14] (Mo.1969); Anderson v. Bell, 303 S.W.2d 93, 100[13] (Mo.1957). See also Miller v. Haynes, 454 S.W.2d 293, 296-297 (Mo.App.1970).

Appellant charges the court erred (VI) in admitting in evidence an ordinance of the City of St. Louis prohibiting “regular” sounding of a locomotive whistle “because there was no evidence that the locomotive was within the boundaries of the city as it approached the place of the occurrence when a whistle would be required.” Appellant argues that the admission gave the railroad an excuse for negligence in failing to sound its whistle and deprived the jury of a chance to find that a sounding of the whistle would have caused the bus driver to apply his brakes sooner and to have stopped instead of attempting to beat the train through the crossing, with the result that the railroad was absolved of liability despite its negligence.

Appellant could not have been prejudiced by such an error in favor of the codefendant. Only the plaintiffs could have been prejudiced by it, and they are not complaining. A defendant may not complain of errors whose only effect was to absolve codefendants of liability and thus to prevent a joint verdict against both defendants. Duboise v. Railway Express Agency, Inc., 409 S.W.2d 108, 115[5] (Mo.1966); May v. Bradford, 369 S.W.2d 225, 228[4] (Mo.1963); Ciardullo v. Terminal Railroad Ass’n of St. Louis, 289 S.W.2d 96, 98-99[3, 4] (Mo.1956).

Judgments affirmed.

MORGAN, C. J., BARDGETT, DONNELLY and RENDLEN, JJ., and HOUSER, Special Judge, concur.

SEILER, J., concurs in part and dissents in part in separate opinion filed.

FINCH, J., not sitting.

SIMEONE, J., not participating because not a member of the Court when cause was submitted.

SEILER, Judge,

concurring in part and dissenting in part.

I concur except as to the ruling that the objection to the question about the pulmonary function test was not sufficiently specific, to which portion of the opinion I dissent.

      . See State ex rel. Kansas City Public Service Co. v. Shain, 350 Mo. 316, 165 S.W.2d 428, 432[6] (1942) (point that verdict was excessive not needed if error relates to instructions on damages); State ex rel. State Highway Com’n v. Thurman, 552 S.W.2d 42 (Mo.App.1977) (point not needed if only issue in case is damages). See also State ex rel. State Highway Com’n v. Gravois Farm Club, 483 S.W.2d 786, 789-790[8] (Mo.App.1972), refusing to require separate point on inadequacy of verdict when error only pertains to inadequacy of a damages award.

      . The instant case was tried prior to the decision of Missouri Pacific Railroad Co. v. Whitehead & Kales Co., Mo. banc, 566 S.W.2d 466; and application of the rules stated in this paragraph should not be taken to affect or modify the law as declared in that decision.


source: Caselaw Access Project

author: ANDREW JACKSON HIGGINS, Special Judge.

license: Public Domain

text:
    Anna NAGEL, Plaintiff-Respondent, v. BI-STATE DEVELOPMENT AGENCY, Defendant-Appellant, and Norfolk and Western Railway Company, Defendant-Respondent.
    No. 60416.
    Supreme Court of Missouri, En Banc.
    June 15, 1978.
    Rehearing Denied July 24, 1978.
    John D. Schneider, St. Louis, for defendant-appellant.
    James E. Hullverson, Stephen H. Ring-kamp, St. Louis, for plaintiff-respondent.
    Edward L. Dowd, St. Louis, for defendant-respondent.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal on transfer by order of the Supreme Court prior to opinion by the Court of Appeals (Rule 83.06), from verdict and judgment in favor of Anna Nagel against Bi-State Development Agency on her claim for damages for personal injuries against Bi-State and Norfolk and Western Railway Company. The questions (Rule 83.09) are whether the court erred in giving plaintiff’s verdict-directing instruction against Bi-State, in ruling on plaintiff’s hypothetical question concerning causation of her compression fractures, and whether the verdict is excessive. Affirmed.

Plaintiff’s action arose from the collision described in Myers, et ux. v. Bi-State Development Agency and Norfolk and Western Railway Co., Mo. banc, 567 S.W.2d 638. Mrs. Nagel was a fellow passenger of Mr. Myers. She was thrown from her seat in the bus by the collison, was rendered unconscious, and received injuries to her chest, mouth, nose, knees, and back. She received treatment in the hospital on several occasions and lost considerable time from work. The medical evidence conflicted on severity of injuries, particularly on the question of vertebral fractures.

Plaintiff’s claim against Bi-State was submitted by Instruction 2, identical to Instructions 3 and 4 in Myers v. Bi-State, supra, except for names.

The jury’s verdict was against plaintiff and in favor of NW; and for plaintiff and against Bi-State for $53,000. Judgment was entered accordingly.

Appellant charges the court erred (I) in giving plaintiff’s verdict-directing instruction against Bi-State “because this instruction improperly creates a duty contrary to the law in an argumentative form inferring that failure to heed a warning was a punishable and inherently illegal act giving a privately erected warning device the appearance of the force of law.”

The foregoing demonstrates and appellant’s brief concedes that this contention is identical to Point I in Myers v. Bi-State, supra. It is denied for the reasons there stated.

Appellant charges the court erred (II) in failing to sustain its objection to a hypothetical question concerning causation of her compression fractures because there was not a sufficient foundation laid “in that there was no testimony in the plaintiff’s case that the X-ray taken on the date of the occurrence demonstrated an acute fracture which was a necessary element because that X-ray was available and because all medical evidence agreed that whether a compression was acute could be determined as a fact from the existence or absence of spur formation at the fracture site.”

The pertinent record arose from the direct examination of plaintiff’s physician, Dr. J. Otto Lottes, viz:

“Q. (By Mr. Hullverson) Assume this lady’s on a bus that’s hit by a train and there is considerable violence; she is knocked across the seat and knocked unconscious; she immediately wakes up, she’s got intense pain in the chest, breast plate, she’s got pain in the upper dorsal region of her back, and she has a great deal of pain and discomfort in that area and in her chest. Assume that before December 11, 1973 when she is knocked about in the bus in the manner in which I have indicated to you, that she’s got no pain in her chest and in her mid-dorsal back region. And assume further that she goes to Jewish Hospital, Homer Phillips, and they say you have got a fractured sternum by diagnosis. Assume further that she has complained repeatedly about trouble in her chest and in her mid-dorsal region from that moment forward, and assume that she worked with two ladies for fifteen years and did not complain about chest pain or pain in her mid-dorsal region. Assume also, Doctor, that this same lady complained about pain in her mid-dorsal vertebrae area for several months and that finally on March 19, 1974 an x-ray was taken of her dorsal vertebrae and it was described as revealing compression fractures of T-3 and T^4. Assume further that in December when she went into Jewish Hospital, December 11th, they took an x-ray of her dorsal vertebrae and they said this looks like a compression fracture of T-3 but it’s not a particularly good film, we recommend you take more films. None were taken, assume, until finally March 19th they take some more films. They then say she’s got compression fractures of T-3 and T-4. And assume further that in August 21,1974, Doctor, a follow-up x-rays are taken of those original x-rays which describe the defect and compression fractures of T-3 and T-4 as healing. Assuming those things, Doctor, do you have an opinion as to whether or not the train wreck caused the lady’s fractured sternum and fractured back?
“MR. SCHNEIDER: I will object, of course, to the question, but I will object to the form of the question. There hasn’t been sufficient foundation laid.
“THE COURT: All right. Overrule the objection.”
Dr. Lottes gave his opinion that “the accident caused her compression fractures, her neck injury and sternum [injury].”

This record demonstrates that defendant’s objection was general and did not specify to the trial court what, if anything, was lacking in the question’s foundation to preserve the point now urged for appellate review. On appeal a party is held to the specific objections presented to the trial court. Rule 84.13(a); Schmitt v. Pierce, 344 S.W.2d 120, 130[12] (Mo. banc 1961). See Brooks v. Travelers Insurance Co., 515 S.W.2d 821, 824[3] (Mo.App.1974), where objection to a hypothetical question did not have a proper foundation; counsel did not state wherein the foundation was lacking or what evidence was omitted, and the objection was thus insufficient to preclude the opinion sought; Cole v. Evans, 546 S.W.2d 748, 750[1] (Mo.App.1977), where defendant’s failure' to include in his objection or otherwise point out to the trial court relevant facts which he claimed were omitted rendered his objection to hypothetical question on ground it omitted relevant facts in evidence insufficient and there was no error in overruling it; Kirk v. Kansas City Terminal Ry. Co., 27 S.W.2d 739, 743[6] (Mo.App.1930), where the objection to a hypothetical question asked of a medical expert failed to preserve the point urged on appeal because it did not specify, among other things, why the question was improper and what essentials were omitted. The appellate court considers only those omissions in hypothetical questions to which specific objection has been made to the trial court specifying what is missing or improperly included. Skelton v. General Candy Co., 539 S.W.2d 605, 614[29] (Mo.App.1976); Morton v. St. Louis-San Francisco Ry. Co., 323 Mo. 929, 20 S.W.2d 34, 45[15] (1929); Glowczwski v. Foster, 359 S.W.2d 406, 411[6] (Mo.App.1962). Appellant’s citations, e. g., Dolan v. D. A. Lubricant Co., 416 S.W.2d 40 (Mo.App.1967); Long v. St. Louis Public Service Co., 288 S.W.2d 417 (Mo.App.1956), and Harp v. Illinois Central Railroad Co., 370 S.W.2d 387 (Mo.1963), do not address this aspect of hypothetical questions.

Appellant contends (III) the verdict “is so grossly excessive that it is conclusive proof . that the verdict was based upon the incompetent evidence that the plaintiff sustained two compression fractures as a result of the occurrence and therefore the error under Point II must be held to be prejudicial error.”

Inasmuch as appellant argues that plaintiff’s verdict is excessive if the evidence of the fractured vertebrae had been excluded, failure of the “error under Point II” leaves nothing for review under this contention. It may not be said that plaintiff’s damages were excessive. Anna Nagel took early retirement in June, 1974, at 64 years of age, because of her physical condition resulting from the injuries she sustained in the collision December 11, 1973. She was off work from the date of her injuries until February, 1974, during which time she was not paid. At the time of her retirement she was making $117 per week. The accident produced immediate pain to her chest and back. In the hospital following the collision she could not move because her chest, back, and breathing pained her. Her activities have become limited because of arm, chest, and back pain, areas in which she was pain-free prior to the collision. Mrs. Nagel had been a seamstress at Low-enbaum’s for 13 years prior to her injuries. Lowenbaum’s had no retirement age and plaintiff, as other ladies at Lowenbaum’s who worked into their seventies, had no intention of quitting until forced to do so by her injuries. Mrs. Nagel received care at Homer G. Phillips and Jewish Hospitals at a cost of $1,367, and paid numerous visits to physicians at the Garment Center Clinic prior to seeing Dr. Lottes. After seeing Dr. Lottes, she took physical therapy at Christian Hospital Northeast and was doing so at the time of trial May 24,1976. At trial she had severe pains in her chest and back which were aggravated upon movement. Breathing was difficult. She had pain every day. She suffered compression fractures of two vertebrae, a fractured sternum and cervical syndrome. These injuries in turn caused injury in surrounding soft tissues which would produce pain for the remainder of her life expectancy of 11.94 years. She also sustained loss of normal lordotic curve of her spine and cerebral concussion. Her injuries impaired her ability to work. Amount of verdict does not in and of itself establish that it was the result of bias or passion and prejudice, without showing some other error committed at trial. Skadal v. Brown, 351 S.W.2d 684, 690 (Mo.1961). No such error appears.

Judgment affirmed.

MORGAN, C. J., BARDGETT, DONNELLY, RENDLEN and SEILER, JJ., and HOUSER, Special Judge, concur.

FINCH, J., not sitting.

SIMEONE, J., not participating because not a member of the Court when cause was submitted.


author: MORGAN, Chief Justice.

text:
    William E. FISHER et al., Appellants, v. REORGANIZED SCHOOL DISTRICT NO. R-V OF GRUNDY COUNTY, Missouri, et al., Respondents.
    No. 60212.
    Supreme Court of Missouri, En Banc.
    June 15, 1978.
    Rehearing Denied July 24, 1978.

      L. E. Atherton, Milan, for appellants.
    R. Max Humphreys, Trenton, for respondents.
   MORGAN, Chief Justice.

More than one hundred electors and taxpayers of Reorganized School District No. R-V of Grundy County, Missouri, initiated this action against the district and the officers thereof; wherein, they sought a declaratory judgment that an “election” held on February 8, 1977, was invalid and that the tax levy approved thereat was void. Alleged irregularities in the conduct of the election were abandoned by plaintiffs and the sole question presented was whether or not the levy, as approved by the voters, was in excess of constitutional limitations. The trial court determined that it was not and we agree.

At the center of the controversy is § 11(c) of Article X of the Missouri Constitution. In May 1970, that section provided, in part, that:

. in school districts the rate of taxation as herein limited may be increased for school purposes so that the total levy shall not exceed three times the limit herein specified and not to exceed one year

Pursuant thereto, the district at the school election of 1970 submitted to the voters an increase to a total rate of $3.75. The notice thereof read as follows: “To authorize a tax levy of 250 cents on the one hundred dollar valuation for a period of one year” in addition to the levy of $1.25 which could be made without voter approval. Acceptance of the total figure of $3.75 resulted in conformity with § 11(c) of Article X as it then existed.

Thereafter, said section was amended at the general election held on November 3, 1970, to provide, in part, that:

. in any school district where the board of education is not proposing a higher tax rate for school purposes, the last tax rate approved shall continue and the tax rate need not be submitted to the voters .

That is precisely what occurred in the defendant district. The $3.75 rate, approved in 1970, continued yearly until the 1977 school election, at which time a 60 cent increase to a total of $4.35 was submitted to and approved by the voters of the district.

Plaintiffs’ challenge appears to be predicated upon the following reasoning, to-wit: (1) that the 1970 rate increase created a contract between the taxpayers and the district that it would last for one year only, (2) that this constituted a vested right in favor of plaintiffs, (3) that any construction of the November 1970 constitutional amendment which put a stamp of approval upon the continued use of the 1970 tax rate would be violative of the proscription against retrospective application thereof, (4) that the tax rate approved in 1977 was void because it was based on the assumption the 1970 rate ($3.75) had continued intact from that date, and (5) that, generally, there had been a denial of due process.

The trial court ruled that the 1970 amendment had removed any necessity for the district to submit the rate approved in May 1970 to further consideration because no increase in that levy was proposed during that period from 1970 to 1977; and, thus, when an increase was proposed in 1977 it was added correctly to the $3.75 rate which had continued pursuant to said 1970 amendment for some seven years.

The parties have no quarrel with the underlying legal principle which seeks to protect “vested rights” from destruction by retrospective application of new laws, be they statutory or constitutional. 16 C.J.S. Constitutional Law § 40; 16A C.J.S. Constitutional Law § 417. As said in McManus v. Park, 287 Mo. 109, 229 S.W. 211 (1921) at 212, a law “. . .is not retrospective in its operation, within the terms of the constitution, unless it impairs some vested right.” Later in Willhite v. Rathburn, 332 Mo. 1208, 61 S.W.2d 708 (1933) at 711, the court held that: “The constitutional inhibition against laws retrospective in operation does not mean that no statute relating to past transactions can be constitutionally passed, but rather that none can be allowed to operate retrospectively so as to affect such past transactions to the substantial prejudice of parties interested.”. (Emphasis added.) Furthermore, a vested right “. . . must be something more than a mere expectation based upon an anticipated continuance of the existing law. It must have become a title, legal or equitable, to the present or future enjoyment of property or to the present or future enjoyment of the demand, or a legal exemption from a demand made by another.” People ex rel. Eitel et al. v. Lindheimer et al., 371 Ill. 367, 21 N.E.2d 318, 321 (1939).

In the instant case, the constitutional amendment did operate in such a way as to relate to antecedent events for the simple reason it allowed the school board to carry forward until 1977, without further approval, a tax rate voted in 1970. Thus, the issue turns on whether or not a vested right did exist. For several reasons, we find that it did not.

The “substantial prejudice” required in Willhite v. Rathburn, supra, is clearly not present. The voters of defendant district not only passed the 1970 tax levy but then paid their taxes under the provisions of the same, without challenge, each year until 1977. Further, in that year they passed an even larger levy based on an increase of the 1970-1976 rate by a two-thirds majority. We find it difficult to see any “substantial prejudice” given the willingness to abide by the 1970-76 rate and to vote, in 1977, for what in effect amounted to a ratification of the past extension of the 1970 rate. While there is authority for the proposition that a levy of taxes which is illegal or invalidated for irregularities may be cured by a subsequent levy (84 C.J.S. Taxation § 370), we do not base our decision on ratification. We merely find a glaring lack of substantial prejudice evidenced from the record concerning the history of tax levies in the defendant district for the past several years.

At the end of the year following the 1970 election, the voters had received exactly what they had a right to by the terms of that election — a rate of $3.75 for the year. The election and its result stood on its own merit, untouched, for that period. Based on the law as it was in 1970, the voters surely might have held the expectation that the levy would not and could not continue in later years without a new vote. Adoption of the constitutional amendment certainly divested them of the same. However, a “vested right” to be entitled to constitutional protection must be more than an “expectation” based on supposed continuation of the law as it had been in the past. State ex rel. Otto v. Kansas City, 310 Mo. 542, 276 S.W. 389, 400 (1925). See also Middleton v. Texas Power and Light Co., 249 U.S. 152, 39 S.Ct. 227, 63 L.Ed. 527 (1919) and cases compiled in 16 Am.Jur., Constitutional Law § 423, n.2.

Plaintiffs also allude to a due process violation premised on the alleged destruction of a vested right. Finding an absence of the latter, the argument is without merit.

The judgment of the trial court is affirmed.

BARDGETT, FINCH, DONNELLY, RENDLEN and SEILER, JJ., and HOUSER, Special Judge, concur.

SIMEONE, J., not participating because not a member of the Court when cause was submitted.

      . § 11(c) of Article X, as now written, incorporates both the limitation of “not to exceed one year” and the directive that “the last tax rate approved shall continue and the tax rate need not be submitted to the voters” if a higher rate is not proposed. Circumstances could be hypothesized which would make the same repugnant one to the other. If construed as such, the law provides that: “[a]s the latest expression of the will of the people a clause in a constitutional amendment will prevail over a provision of the constitution or earlier amendment inconsistent therewith, since an amendment to the constitution becomes a part of the fundamental law, and its operation and effect cannot be limited or controlled by previous constitutions or laws that may be in conflict with it.” 16 C.J.S., Constitutional Law § 26, p. 99; State ex rel. Board of Fund Commissioners et al. v. Holman, 296 S.W.2d 482, 491 (Mo.banc 1956).


author: FINCH, Judge.

text:
    INTERNATIONAL TRAVEL ADVISORS, INC., Petitioner-Appellant, v. STATE TAX COMMISSION of Missouri et al., Respondents-Respondents.
    No. 60159.
    Supreme Court of Missouri, en banc.
    June 15, 1978.
    Rehearing Denied July 24, 1978.
    Joseph B. Meives, George J. Leontsinis, St. Louis, for petitioner-appellant.
    John D. Ashcroft, Atty. General, S. Joel Wilson, Asst. Atty. Gen., Jefferson City, for respondents-respondents.
   FINCH, Judge.

International Travel Advisors, Inc. (In-trav), in filing its 1970 income tax return pursuant to then § 143.040, RSMo 1969, elected to compute its tax in accordance with the alternative method authorized in § 143.040.2. The Director of Revenue assessed additional tax of $4,806.89 on the basis that Intrav should have included 50% of receipts from transactions allegedly occurring partly in Missouri and partly elsewhere. After the Director of Revenue denied Intrav’s petition for abatement, Intrav appealed to the State Tax Commission (Commission) which approved the assessment. Intrav then filed a petition for review in the circuit court. It affirmed, after which Intrav appealed to this court. We have jurisdiction because the appeal involves construction of a revenue law of this state. We affirm.

Intrav is a Missouri corporation engaged in the business of packaging, marketing and conducting back-to-back group charter tours to foreign countries. A chartered plane operates on a continuous shuttle between various cities in the United States and the foreign cities to be visited. The plane brings a tour group from the United States to the first city on the tour. When that group deplanes, the members of the preceding tour are taken on board and flown to the next city. The incoming group occupies the hotel rooms just vacated by the departing group. This process is continued until all scheduled tours are completed. In 1970 those tours were to the Orient and to Africa. These tours were planned in In-trav’s home office in St. Louis where all of its employees were located. Intrav had no offices elsewhere.

Before any tours were sold, representatives of Intrav visited the cities to be included in a tour and made arrangements for hotels, restaurants, baggage handling, ground transportation, various sightseeing tours and other details, including arrangements for a staff to set up and operate a hospitality desk in the hotel lobby in each city visited. Various airlines were contacted and following negotiations one airline was chosen to carry all passengers on the tours for one season. Intrav would then prepare printed brochures giving the details of each tour, plus sample form letters and other materials to be used in selling the tours.

After these arrangements had been completed, Intrav’s five salesmen then traveled from their office in St. Louis to visit various professional and social organizations throughout the United States in an attempt to persuade them that these tours would be of benefit to their members and that they should sponsor a tour for members. Such organizations were utilized because they provided an established group which would satisfy regulatory provisions applicable to charter flights and because selling the tours in this manner avoided the expense and management headaches of establishing and maintaining branch offices in various parts of the country.

The salesmen had no authority to alter the tours to meet special requests. They were to be sold only as previously packaged. When an organization contacted by a salesman agreed to sponsor a tour for its members, arrangements were made for the organization to mail the previously prepared brochures and an accompanying letter to members. For this purpose, the brochures and other materials were sent from St. Louis to the sponsoring organization. The organization was reimbursed for its actual out-of-pocket expenses, including secretarial work and postage, but it was to receive no other compensation of any kind. No contract between Intrav and the sponsoring organization was signed and the latter incurred no contractual or financial obligation to Intrav by assuming such sponsorship. It assumed no responsibility for the tour. That was the obligation of Intrav. The sponsoring organization was required to sign a charter contract for the airplane with the airline company but the sponsor had no financial obligation therefor. That was taken care of by Intrav.

The brochures gave details of the tour including place and time of departure, places to be visited, the names of the hotels, a listing of what the tour included, weight allowance, the price of the tour and other information. All brochures were identical except for time and place of departure and the name of the sponsoring organization printed on the top of the front page and in the reservation coupon on the back page.

Persons interested in making the tour were instructed to clip a reservation coupon from the back of the brochure and mail it, along with a deposit of $100.00 per person, to the headquarters of the sponsoring organization. The coupon for the Orient tour, which was typical, read: “Enclosed is my check for $_($100 per person) as deposit. I understand the total deposit will be refunded if it becomes necessary to cancel my Orient Adventure membership at least 60 days before departure, when final payment is due.” It then was followed by the name and address of the member making the reservation.

Upon receipt at a sponsoring organization’s headquarters of a reservation coupon and check, it would be recorded in the manner and on forms specified by Intrav after which the coupon and money were forwarded on to Intrav’s St. Louis office. The sponsoring organization would mail to its member a “Welcome Aboard” letter, the form for which had been furnished by In-trav’s salesman. The letter provided additional information concerning the tour.

Approximately 90 days before schecjuled departure of a particular tour, Intrav, from its St. Louis office, would send to those who had sent in reservation coupons a bill for the balance of the tour price. Payment of the balance due was made directly to Intrav in St. Louis. However, the member still had the right at any time up to 60 days before departure to secure a refund of his initial deposit. If he did that, he had no obligation to pay any part of the subsequent billing. However, if the member cancelled less than 60 days before scheduled departure, he forfeited his original deposit and, if the balance of the tour price had been paid, he also forfeited that portion thereof attributable to the cost of air transportation unless Intrav sold the space to some other member. Upon receipt from a member of payment of the balance due for the tour, Intrav mailed from St. Louis to that member final flight information, including an official “Welcome Aboard” letter, departure details, passport cases, restaurant coupon books, and information concerning optional sightseeing tours offered by Intrav at the various places to be visited.

Tours departed from and returned to an airport near the headquarters of the sponsoring organization. Each tour was accompanied at all times by one of Intrav’s regular tour directors from the St. Louis office or occasionally by other personnel from that office who acted as tour director. They processed the group onto planes, trains and buses and through transportation terminals and hotels, also handling any individual problems or special requests. This tour director was with the group from time of departure until the group returned to the city from which it had departed.

In 1970 there were 35 charter trips to the Orient on which there were 5,666 passengers and there were 20 charter trips to Africa on which there were 3,111 passengers. Five of these flights, on which there were 446 passengers, originated from Missouri airports. The other flights originated from airports in other states.

In preparing its 1970 Missouri income tax return, Intrav included in determining the numerator of the elective allocation formula only receipts from passengers whose planes departed from Missouri airports. Receipts from the passengers on all other flights were excluded therefrom but all such income was included in the denominator. This was done on the basis that these were derived from sales made wholly outside of Missouri and that such receipts were to be excluded pursuant to the elective alternative formula provided in § 143.040.2. The Department of Revenue took the position that 50% of receipts from flights originating outside Missouri should be included and on that basis assessed the additional tax against Intrav.

Intrav argues that the original offers of the tours were mailed from the sponsoring organization’s office to people residing outside Missouri and that such offers were accepted by members executing and mailing the reservation coupon, accompanied by a check, also done outside Missouri. Thus, says Intrav, these were sales outside Missouri and no part of the income therefrom is includable in making the computation under the alternative elective formula.

Resolution of the issue presented depends on how the provisions of § 143.040 are interpreted. In subsection 1 thereof, an income tax is imposed on net income from all sources in Missouri. The subsection goes on to provide that such income includes all gains, profits and revenue from transactions of business in this state, including income from the portion done in this state of transactions done partly in Missouri and partly elsewhere. In subsection 2, it is provided further that where income results from a transaction conducted partly in this state and partly elsewhere and such income cannot be segregated, a portion thereof shall be allocated to Missouri on the basis of the portion of the transactions done in this state. Evidently in recognition that such allocation may be difficult, the subsection gives the taxpayer an option to utilize a formula in computing its tax. That formula provides:

“ . . The net income from all sources shall be determined as now or hereafter may be provided, excluding therefrom the figures for the operation of any bridge connecting this state with another state. The amount of sales which are transactions wholly in this state shall be added to one-half of the amount of sales which are transactions partly within this state and partly without this state, and the amount thus obtained shall be divided by the total sales . . and the net income shall be multiplied by the fraction thus obtained, to determine the proportion of income to be used to arrive at the amount of tax, and the amount of tax shall be such percent thereon as may now or hereafter be provided. . . . ”

Section 143.040 was construed by this court in State ex rel. River Corporation v. State Tax Commission, 492 S.W.2d 821 (Mo.1973). Taxpayer therein operated a cement plant in Missouri. It had terminals in various other states to which it shipped cement. Each terminal had a sales office and sales staff. As sales were made by those salesmen, cement was shipped from a terminal to the customer. River Corporation paid income taxes to six other states based on the proportion of sales made in those states. The issue presented was whether sales from these out-of-state terminals should be taxed as Missouri income.

River Corporation argued that under the subsection 2 elective formula, which it had ' utilized, the formula for assessment of taxes was based on sales and that the sales in question were made wholly outside the state of Missouri. The Tax Commission argued that § 143.040 imposed a tax based on transactions, of which sales were only a part, and that material portions of the transactions involved had occurred in Missouri. The opinion in River Corporation, while recognizing that the tax imposed by the provisions of subsection 1 was on the revenue from transactions, concluded that the subsection 2 alternative formula was based on sales rather than transactions. On that premise it was held that Missouri tax was not due.

On reconsideration of the provisions of § 143.040, we have concluded that our decision in River Corporation that the tax is on sales rather than transactions where the elective formula of subsection 2 is utilized is incorrect. Actually, the tax is imposed by the terms of subsection 1. The language thereof makes it clear that the tax is on income from transactions and where transactions occur partially in Missouri and partially elsewhere, the portion allocable to Missouri is to be included in the tax computation. Subsection 2 does not impose a different tax. In fact, it does not purport to levy a tax at all. Rather, it deals only with how to compute the tax levied in subsection 1. Thus, the income to be taxed continues to be income from transactions. This is recognized in the first part of subsection 2 which continues to speak of income from transactions. Then, in providing for an alternate formula for computation of the tax previously imposed, the subsection mentions both transactions and sales. It states in part: “The amount of sales which are transactions wholly in this state shall be added to one-half of the amount of sales which are transactions partly within this state and partly without this state * This reference to sales at this point does not have the effect of imposing a tax on a different basis than that imposed on other taxpayers not employing the alternate formula. The basis remains the same. What this formula does do is to provide an alternate simplified method of computing the tax where there are transactions which occur partly in Missouri and partly elsewhere. We look to whether in fact there was income from business transacted partly in Missouri and partly elsewhere and where that is the situation the amount of taxable income therefrom is determined by a formula based on the volume of sales receipts from such transactions. Instead of seeking to determine an appropriate percentage of income from such transactions, the formula arbitrarily uses 50% of the entire sales income from such transactions (partly in Missouri and partly elsewhere) to determine the numerator of the fraction.

As previously noted, Intrav argues that the place where a proposal is accepted and a contract made is the place of sale and that if that is outside Missouri such sales are entirely outside Missouri and are not to be included in computation of tax due under the alternate formula. If that interpretation were correct, then there would be no income apportioned between Missouri and other states. Income would be totally Missouri income or wholly income in other states, depending on where the contract was accepted. This is not what the legislature contemplated when it adopted § 143.-040 because it spoke of and undertook to tax income derived from transactions occurring partly in Missouri and partly elsewhere. The legislature intended to tax income from transactions, including portions of income from transactions performed only in part in Missouri, not income only from sales where the contract was accepted in Missouri.

The Commission found that the transactions whereby Intrav planned, packaged, sold and implemented these back-to-back charter tours were performed partly in Missouri and partly elsewhere. As indicated by the facts recited at the outset of this opinion, this finding is supported by substantial evidence. The Commission also arrived at the legal conclusion that the contracts on flights originating outside Missouri were accepted in Missouri. We need not consider whether such legal conclusion was right or wrong. It makes no difference where the actual point of sale occurred so long as the transaction occurred partly in Missouri. In such case, 50% of all sales income attributable to the transaction, regardless of the place where the actual contract of sale was made, shall be included in the numerator of the alternative formula of § 143.040.2 that Intrav elected to use in this case. To the extent that State ex rel. River Corporation v. State Tax Commission, supra, holds to the contrary, it should no longer be followed.

For the reasons stated, the judgment is affirmed.

MORGAN, C. J., BARDGETT, DONNELLY, RENDLEN and SEILER, JJ., and HOUSER, Special Judge, concur.

SIMEONE, J., not participating because not a member of the court when cause was submitted.

      . Sec. 143.040, RSMo 1969, was repealed in 1972. Laws 1972, p. 698, § A, eff. Jan. 1, 1973. It was replaced by §§ 143.071 and .441, both Laws 1972, p. 699, § A, eff. Jan. 1, 1973.

      . The pertinent portions of § 143.040, RSMo 1969, provided:
      “1. Each year, '. . .a tax shall be levied upon, assessed against, collected from, and paid by every corporation, . licensed to do business in this state, ... in such percent, as now or hereafter provided, of the net income from all sources in this state during the preceding year. Income shall include all gains, profits and revenue from the transactions of the business of the corporations in this state, including gains, profits and revenue from the doing in this state of such portions of each transaction of the business of the corporation which transaction is partly done in this state and partly done in another state or states, .
      “2. Where income results from a transaction partially in this state and partially in another state or states, and income and deductions of the portion in the state cannot be segregated, then such portion of income and deductions shall be allocated in this state and other state or states as will distribute to this state a portion based upon the portion of the transaction in this state and the portion in such other state or states. The taxpayer may elect to compute the portion of income from all sources in this state in the following manner: The net income from all sources shall be determined as now or hereafter may be provided, . The amount of sales which are transactions wholly in this state shall be added to one-half of the amount of sales which are transactions partly within this state and partly without this state, and the amount thus obtained shall be divided by the total sales or in cases where sales do not express the volume of business, the amount of business transacted wholly in this state shall be added to one-half of the amount of business transacted partly in this state and partly outside this state and the amount thus obtained shall be divided by the total amount of business transacted, and the net income shall be multiplied by the fraction thus obtained, to determine the proportion of income to be used to arrive at the amount of tax, and the amount of tax shall be such percent thereon as may now or hereafter be provided. . .

      . All statutory references are to RSMo 1969 unless otherwise indicated.

      . This does not mean that we are indicating that a different result would follow if the interpretation of § 143.040 herein adopted were applied in that case. That question is not before us. There were substantial factual differences between River Corporation and the instant case. For example, in that case, the taxpayer had branch offices from which sales were made and goods shipped and income taxes were paid other states.