author: MANFORD, Judge.

text:
    Lloyd W. PARRISH (Deceased) and Marjorie L. Parrish, Widow, et al., Respondents, v. KANSAS CITY SECURITY SERVICE, et al., Appellants.
    No. WD 34362.
    Missouri Court of Appeals, Western District.
    Oct. 2, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      David W. Shinn, Kansas City, for appellants.
    Roger J. Staab, Kansas City, for respondents.
    Before TURNAGE, C.J., and SOMER-VILLE and MANFORD, JJ.
   MANFORD, Judge.

This is an appeal from the judgment of the circuit court which affirmed a previous award for worker’s compensation death benefits by the Missouri Labor and Industrial Relations Commission. The judgment is reversed with directions.

Appellant, Kansas City Security Service Co. (hereinafter employer) presents two points, which in summary charge that the circuit court erred in affirming the award of the Commission because (1) said award was not supported by substantial and competent evidence, and (2) the award was based solely upon the found-dead presumption which was rebutted by evidence adduced.

The pertinent facts are as follows. The employer herein provides uniformed guard services for various companies. One such company is Comet Electronics, located at 4800 Deramus, Kansas City, Missouri. Lloyd Parrish was employed as a guard by the employer at Comet. Parrish worked the 4:30 p.m. to 11:00 p.m. shift on Monday through Friday. Parrish also had a second job (unrelated) cleaning two churches.

Comet Electronics supplies and services remote switching devices in local railroad yards. Parrish had only two functions to perform in carrying out the security services for the employer at the Comet building. The first function was to “make a watchman’s clock round” every hour. In making this “round”, Parrish carried a specially designed clock, walked to six different locations (four locations were inside the Comet building and two were just outside the Comet building), took a key from each location and turned the key in the lock which in turn would cause the clock to register on a rotating tape the time and location.

Parrish and his fellow guards were instructed to make a “round” every hour in the order of location one through six, or just the opposite from location six through a reverse order to location one. Concerning the two “outside locations”, Parrish and the others were instructed to step outside, turn the key, and return to the inside of the building. The duties of Parrish and the others did not require them to be outside the building other than the procedure described above for the two outside key locations. Parrish and the others were provided no written instructions of their duties and they were trained on the job by a supervisor for the employer. Some of the guards, including Parrish, were authorized to carry a firearm. Some of the guards carried the weapons on their person and some did not.

On October 17, 1975, Parrish left his home at approximately 3:30 p.m. for his work tour at Comet. Parrish drove his own automobile to and from work. His work duties did not include the use of his automobile. Between 6:01 and 6:45 p.m. on the evening of October 17, 1975, Parrish’s body was found between the front of Parrish’s automobile and the front showroom of the Comet building. The showroom area had a plate glass window. The top portion of the body was just inside the building as the plate glass had been broken. The lower portion of the body was on the outside of the building.

The local fire department arrived on the scene first. They were followed by local police, who sealed off the area and conducted an investigation. When the police arrived, the hood of Parrish’s vehicle was down and the ignition was off. (A police investigator later testified that there was no tampering with anything at the scene.) Police found a red-handled screwdriver and a flashlight on the ground near Parrish’s body. (The surviving widow, Marjorie Parrish later testified that her late husband used a red-handled screwdriver on the janitor’s job, which he went to after his duty tour at Comet. The screwdriver was kept either on his person or in the glove compartment of his automobile.) Police investigators also found another screwdriver •and a pair of pliers under the automobile hood. Also under the hood they found a shop rag on the left side of the engine. Investigators also observed that the engine air cleaner was not in its regular or normal position and the wing nut which held it in place was missing. They also observed that the transmission was in low gear and the emergency brake was on. Investigators later stated that the engine was still warm and there was an “overheating” smell coming from the automobile. The Comet building contained smoke from the burning transmission bands of the Parrish automobile.

The Parrish automobile was towed to the local police garage and examined. The police mechanic observed that the linkage between the accelerator and the carburetor was sticking. From their investigation, police investigators concluded that there was no evidence of any criminal conduct, and that Parrish was accidentally killed while working on his automobile. Mrs. Parrish later stated that while she did not know if her husband worked on his automobile at the time of his death, he did not normally perform work on his automobile.

A former employee of Kansas City Security, Robert Hemmer, who had also worked at Comet, testified for respondents. Hemmer, in summary, testified to the following pertinent facts. He stated that there was no key location outside of the front door of the Comet building and that the clock-key round would not take a guard to the front door. He further stated that the telephone could not be answered from outside. He also stated that there were no job duties which took a guard outside at the front door and that the guards were not supposed to leave the building.

Other evidence revealed that the nearest clock-key location was some 100 to 150 yards from where the body of Lloyd Parrish was found. Other evidence revealed no outside speaker for the telephone near the front door of the Comet building and that the telephone could not be heard by anyone outside at the front of the building.

At the close of the hearing, the Administrative Law Judge found from all the credible evidence and by application of presumptions allowed by law, that Lloyd Parrish died as a result of an accident arising out of and in the course of his employment. The decision was appealed to the Commission, which affirmed the award with one Commissioner dissenting. The employer then appealed the Commission ruling to the circuit court, which in turn affirmed the award. The appeal to this court then followed.

As noted above, the appellant-employer presents two points, charging that the trial court erred in affirming the Commission’s award. These two points are so interrelated, they are not discussed separately, but rather, this decision, in disposing of this appeal, takes up both issues conjunctively.

It is evident from the “Findings of Fact and Rulings of Law”, that the Administrative Law Judge relied upon and applied the “found-dead presumption”. No detailed explanation of that presumption is undertaken herein as that has been previously provided in Russell v. Southwest Grease and Oil Co., 509 S.W.2d 776 (Mo.App.1974). It can be said that Russell acknowledges and applies the following rule that there arises a rebuttable presumption if an employee is shown to have died or been injured under unexplained circumstances on the employer’s premises and during the hours of employment, that the death or injury resulted from an accident arising out of and in the course of employment.

Immediately, certain other factors must be considered. The first worthy of mention is the caution expressed in Russell that the rebuttable presumption does not extend to a showing of the elements of an accident. rrhis court, in Russell, also went on to declare at 779:

“In the many Missouri cases discussing the presumption, the element of accident either plainly appeared or was readily inferable from the surrounding circumstances, and the only debated issue was whether the injury ‘arose out of and in the course of employment’.
There is sound logic in presuming that an unexplained injury or death which occurs on the premises and during the time of employment has a causal connection with the employment activities. Work-relatedness naturally follows as a rebut-table presumption from those facts.” (emphasis added)

Stated another way, the rebuttable presumption, in absence of contrary evidence, provides the causal connection between duties or activities of employment and the resulting death or injury. The presumption neither prevents proof of the lack of causal connection, nor eliminates as part of the claimant’s burden of proof of a causal connection. The presumption, in absence of any proof either as to the cause of death or injury or the causal connection, simply supplies the two critical elements of a claim.

As noted from the quote above, causal connection must be shown either by evidence or the presumption. The mere fact that an employee is found dead or injured on the employer’s premises during the hours of employment does not, standing alone, conclusively prove a claim for benefits. There remains the requirement that the death or injury had occurred “under unexplained circumstances.” It is obvious that if the circumstances giving rise to the injury or death are by proper evidence or reasonable inferences therefrom explained, two critical issues are resolved. First, the actual (and hence explained) cause of death or injury is disclosed. Second, it becomes more readily possible to determine if the death or injury “arose out of and in the course of employment.” As regards this second issue, the question of causal connection is also resolved.

The foregoing concepts have been succinctly stated in Jackson v. McDonnell Aircraft Corp., 426 S.W.2d 669, 676 (Mo.App.1968) and followed in Russell, supra.

“We have grave doubts that the presumption arose in this case, and that it must invariably arise in every case, merely because, without any consideration of the surrounding facts and circumstances, a claimant’s evidence shows that during his working hours he was found injured at a place where his duties required him to be. It must be remembered that the burden of proof remains on the claimant throughout the case to show that he was injured in an accident which arose out of and in the course of his employment and such presumptions are merely, ‘ * * * procedural (placing the burden upon the party denying their truth to produce evidence) * * *,’ Duff v. St. Louis Mining & Milling Co., 363 Mo. 944, 255 S.W.2d 792, 793. While the passage previously quoted from Mershon v. Missouri Public Service Corp., supra read literally is subject to the interpretation placed upon it by the Commission, an analysis of the presumption cases reveals that it has never been so applied. In fact, as the Supreme Court pointed out in Kelley v. Sohio Chemical Co., Mo., 392 S.W.2d 255, 257, ‘ * * * in fact, no Workmen’s Compensation case actually decided on such a presumption is cited, nor have we found any.’ We are of the opinion that the presumption may arise but that in determining in the first instance whether it does consideration must be given to all of the relevant evidence which is developed and is binding upon claimant, including such evidence as the character of the work assigned to him, the machinery, tools and appliances employed in the performance of his duties, the manner in which his work is customarily performed, the condition of the prior health of the employee, the nature of his injury, and similar pertinent facts and circumstances.” (emphasis added)

It is obvious that both the Russell case and the Jackson case are distinguishable as regards the death (i.e., Russell, death from natural heart failure) and injury (i.e., Jackson, a self-inflicted knife wound) from the instant ease, and it might be argued that neither applies to the instant case. However, both cases take up and consider the presumption and hence do find application herein. In addition, both cases place in perspective the issue whether the death or injury “arose out of and in the course of employment.”

Russell was discussed in Kinney v. City of St. Louis, 654 S.W.2d 342, 343 (Mo.App.1983), with the court again restating at 343:

“Claimant bears the burden of proving her claim to be within the Worker’s Compensation Law’s provisions. Bauer v. Independent Stave Company, 417 S.W.2d 693, 696 (Mo.App.1967). To sustain that burden, claimant must show decedent sustained a death-causing injury which, in turn, was caused by an accident ‘arising out of and in the course of [decedent’s] employment.’ * * *
Claimant contends for a presumption of a work-related accidental injury and death, which she claims arises whenever a worker sustains an unwitnessed injury at a place his employment duties require him to be. While Missouri Courts have toyed with such presumption, none have permitted recovery by its application. This presumption does not extend to a showing of the element of ‘accident.’ If recovery could be granted on the presumption, the element of accident must plainly appear or be readily inferrable from the surrounding circumstances.”

The court in Kinney went on to point out that the ruling in Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781 (Mo. banc 1983) did not change the requisites as previously set forth in Russell.

Referring to an earlier decision, Wheaton v. Reiser Co., 419 S.W.2d 497, 499 (Mo.App.1967), this court discussed the requirement of a claimant to “show that death resulted from an accident arising out of and in the course of employment.” This court went on to point out:

“There is no question that the accident, i.e., the fall, occurred ‘in the course of’ employment. However, the difficulty arises in determining whether or not the accident arose ‘out of’ the employment. In order to recover, claimant must show a causal connection between the employment and the fall and that the fall caused the hemorrhage which caused deceased’s death.
It is not every injury occurring while claimant is at work which is compensa-ble. Only such injuries which arise ‘out of’ employment are compensable. Before it can be held that an injury (or death resulting therefrom) arose ‘out of’ the employment a causal connection between the employment and the accident and injury must be found. See Liebman v. Colonial Baking Company, Mo.App., 391 S.W.2d 948, where this requirement is set out: ‘The familiar rule is that an accident will be held to have arisen “out of” the employment when, from a consideration of all the relevant circumstances, it appears that there was a direct causal connection between the employment and the injury (attributable either to the nature of the employee’s duties or to the conditions under which he was required to perform them) so that the accident can fairly be said to have been a rational consequence of some hazard connected with (or aggravated by) the employment.”

In Wheaton, after pointing out prior decisions wherein the presumption has been considered, this court further declared at 500:

“To carry her burden of showing such causal connection between deceased’s employment and his fall, claimant relies on the presumption that a workman was injured in the course of and in consequence of his employment when he is found injured or dead at a place where the performance of the duties of his employment required him to be. This presumption has been asserted and discussed in such cases as Duff v. St. Louis Mining and Milling Corp., 363 Mo. 944, 255 S.W.2d 792; Oswald v. Caradine Hat Co., Mo.App., 109 S.W.2d 893; Stamps v. Century Electric Co., Mo. App., 225 S.W.2d 493; McClelland v. Hagerty Wrecking Co., Mo.App., 384 S.W.2d 93. In Mershon v. Missouri Public Service Corporation, 359 Mo. 257, 221 S.W.2d 165, the holdings of numerous cases concerning this presumption are summarized as follows: ‘Without reviewing those cases separately, we make the following general observations: Some, or all of them, hold under our Workmen’s Compensation Act and similar Acts that the burden is on a claimant to show that an employee’s injury resulted from an accident arising out of and in the course of his employment; but, when an employee charged with the performance of a duty is found injured at a place where his duty required him to be, a presumption arises that he was injured in the course of and in consequence of his employment; that such presumption is rebuttable.’
In all of these cases, the presumption is discussed, but in each case the court found that there was evidence showing how the accident occurred, and that, therefore, the presumption went out of the case and the decision was based upon the evidence alone.”

Thus, Wheaton illustrates that a death or injury may occur during or “in the course of” employment, but that alone does not satisfy. There remains the difficulty of showing also that the death or injury arose “out of” the employment. First, it must be noted that the terms “in the course of” and “arising out of” are not synonymous, but rather, they “are separate tests for compensability, and both must be satisfied before the employee (i.e., or those claiming under him) is entitled to recover.” Fingers v. Mount Tabor United Church of Christ, 439 S.W.2d 241, 243 (Mo.App.1969). The court in Fingers went on to provide a definition for the two terms. It said at 243, after citing to Lampkin v. Harzfeld’s, 407 S.W.2d 894, 897 (Mo.1966):

“An injury arises ‘out of’ the employment when there is a causal connection between the conditions under which the work is to be performed and the resulting injury and it arises ‘in the course of’ the employment when it occurs within the period of employment at a place where the employee may reasonably be and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto.”

For other cases adopting the foregoing definition, see Elmer E. Stockman, Jr., Construction Co. v. Industrial Commission, 463 S.W.2d 610, 612 (Mo.App.1971), Kunce v. Junge Baking Co., 432 S.W.2d 602, 609 (Mo.App.1968), and Taylor v. Bi-State Development Agency, 416 S.W.2d 31, 34 (Mo.App.1967).

At this juncture, it becomes necessary to consider the particular facts and circumstances of the instant case and to view them in light of the foregoing principles and/or definitions. Certain conclusions can first be set forth in summary fashion and without lengthy discussion, leaving the opportunity for greater detailed consideration of two remaining matters. First, it can be concluded that the deceased employee was, at the time of his death, upon the employer’s premises during the hours of his employment. It can also be concluded that the employee’s death was the result of an accident (i.e., being crushed to death by-his own automobile). This latter conclusion stems from physical evidence found at the scene, plus the absence of any evidence which neither suggests nor establishes either a homicide or a suicide. Stated another way, there is absolutely no evidence that the deceased employee committed suicide. In addition, the evidence presented by investigating authorities supported their conclusion that the deceased employee did not die as a result of, nor was he a victim of, a homicide. Thus, the only conclusion that can be reached is that his death resulted from an accident.

With the foregoing conclusions having been stated, the court’s attention can be directed toward answering three questions, and with the answers thereof, the final determination of this appeal can be reached. The first question is: Did the accident resulting in the employee’s death arise in the course of his employment? The second question is: Did the accident resulting in the death of the employee arise out of his employment? The third question is: Did the “founddead presumption” apply to the instant case?

In taking up the first question, the above definition must again be considered. That definition stated that an injury (or death) arises “ ⅛ the course of’ the employment when it occurs within the period of employment, at a place where the employee may reasonably be and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto.” (emphasis added)

The evidence upon the record before this court is undisputed that the deceased employee sustained a fatal injury within the period of employment.

Continuing then, the evidence regarding at a place where the employee may reasonably be must be considered. The record herein clearly defined the deceased employee’s duties as a security guard. Each hour he was to turn a clock-key at six defined locations at the Comet Electronics Company building. Four of these clock-key locations were inside the building. Two clock-key locations were outside (but attached) to the building. The remainder of time on the job was to be spent listening for the telephone and in turn reporting emergencies, if any, to designated employees of Comet Industries. The job duties did not include the use of the employee’s automobile, nor was there any evidence that the automobile was ever used in furtherance of the employer’s business or to the benefit of the employer. In addition, the evidence revealed that the job duties (with the exception of turning the two outside key-clocks) did not include any activity outside of the building. The evidence included testimony of a former employee (and from the record it is apparent that this former employee was, to say the least, unfriendly toward appellant-employer) who stated that there were no duties which called for a guard to be outside at the front door of the building (i.e., the approximate location of the fatal accident) and that the guards were not supposed to leave the building. The evidence revealed that the nearest key-lock location was some 100 to 150 yards from the location of the fatal accident. Additionally, it was established that the telephone could not be heard from the outside. Considering this evidence, it cannot be said that the deceased employee was, at the time of his fatal injuries, at a place where he, as an employee, may reasonably be as required within the above definition.

In further consideration of the evidence, with particular reference to the remainder of the “in the course of” definition again, the definition or the remaining portion thereof is set forth. An employee is said to have been injured or the injury is said to arise “in the course of the employment ... while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto.” (emphasis added) The record reveals that the deceased employee was found crushed to death as a result of his being crushed between the front of his automobile and the front of the Comet building. A pair of pliers, a screwdriver, and a “shop rag” were found at the location. The automobile engine was still warm, in low gear, but the ignition was turned off. The evidence revealed that the hood was down, but nothing shows that it was latched. The inside of the building was filled with smoke from the burning transmission bands on the automobile. The evidence revealed that the linkage between the accelerator and the carburetor was sticking. Again, it is noted that the duties of the deceased employee did not include the use or operation of his automobile, nor was there evidence that his automobile was in any manner utilized to further the business of the appellant employer. It must be concluded from the evidence presented that the activities leading to the employee’s death were not such that he was reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto as required by the above definition.

Thus, it must be further concluded that the employee did not sustain his fatal injuries “in the course of” his employment.

Considering further the requirement that there must be proof that the death or injury arose “out of” the employment, a return once again to the above definition, followed by the facts upon this record, must be undertaken. As noted above, an injury [or death] “arises out of” employment when there is a causal connection between the conditions under which the work is to be performed and the resulting injury.

Even with the risk of repetition, it must be noted that there is no evidence which reveals that the employer’s duties called for the use of his automobile or that the business of the employer was furthered, or that the employer derived a benefit therefrom. It must also again be noted that the employment duties (except for briefly stepping outside to turn a key-clock at two locations) did not provide for the employee to be outside the building. In addition, testimony revealed that the guards were not supposed to leave the building. The evidence revealed that the nearest key-clock was some 100-150 yards from the location of the fatal accident. The only conclusion which can be reached is that the employee, at the time he sustained his fatal injuries, was not performing work in furtherance of his employment duties, nor did the evidence establish any causal connection between the conditions under which the work was to be performed and his resulting injury.

Thus, it must be concluded that the fatal injuries sustained by the employee did not arise “out of” his employment.

The final question is: Does the “found-dead presumption” apply to the instant case? The presumption, as noted above, in absence of contrary evidence provides that an employee found injured as a result of unexplained circumstances, is presumed to have been injured in the course of his employment, and his injuries arose “out of” his employment. To repeat the above facts is unnecessary, as it is shown that two critical elements within the presumption, by substantial and competent evidence upon the record, are lacking in this case (i.e., “out of” and in “the course of” the employment). The evidence having established the non-existence of those two elements thus rendered the presumption non-applicable to the instant case. As noted in Russell, the presumption cannot be applied to a showing of the elements of an “accident”. Further, in accordance with Russell, the evidence upon this record provides ready inference that the deceased employee was, at the time of his fatal injuries, working on his private automobile, and his conduct or activities were neither within the course of his employment, nor was there any causal connection between his working conditions under which his work was to be performed and his resulting injury. The evidence upon this record clearly removed the presumption from this case. As a further matter, it cannot be said that the evidence upon this record, standing alone and without the application of the “found dead presumption” was competent and substantial as to support an award within the meaning of our worker’s compensation law. It has previously been shown why the presumption has no application. It must be concluded further that there was not substantial and competent evidence to support the Commission’s award.

The judgment is reversed and this cause is remanded with directions to the circuit court to in turn order the Missouri Labor and Industrial Commission to set aside its award and enter, in lieu thereof, its order denying compensation benefits herein.

All concur.


source: Caselaw Access Project

author: LOWENSTEIN, Judge.

license: Public Domain

text:
    Jeanine M. HAGERMAN, Respondent, v. Charles D. HAGERMAN, Appellant.
    No. WD 35422.
    Missouri Court of Appeals, Western District.
    Oct. 2, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.
    Application to Transfer Denied Jan. 15, 1985.
    John W. Dennis, Jr., Paden, Welch, Martin Albano & Graeff, P.C., Independence, for appellant.
    Anne W. Elsberry, Hunter, Chamier, Lee, Elsberry & Brown, Moberly, for respondent.

      Before CLARK, P.J., and DIXON and LOWENSTEIN, JJ.
   LOWENSTEIN, Judge.

The appellant-husband appeals from a decree dissolving a fourteen year marriage. There were no children of the marriage. The wife, age 46 with a high school education, had been a housewife for all but two years of the marriage. Since the separation she had, for the most part, been unable to find employment. The husband, with college degrees in engineering and business, began working at Armco Steel, Inc. during the marriage, and continued to work for that company. The husband’s yearly pay for the two years prior to trial was $42,154.00 of which $10,900.00 was for overtime, and $51,800.00, of which $16,-239.00 was for overtime. Just at the time of trial, June 2,1983, the husband had been transferred from Moberly to the home office of his employer where no overtime was paid. The record shows he was to then go to Utah for his employer as of June 8, 1983 where his base salary was to increase from $16.75 an hour to $17.14, and he was to receive a housing allowance of about $510.00 a month. At trial the wife requested and received $1200.00 a month maintenance for 5 years so as to allow her to get a college degree at the University of Missouri. This award forms the husband’s first point on appeal. His second point contests the trial court’s order awarding the wife fifteen percent of the husband’s non-vested, non-matured pension, when and if the husband retires at age 65. Vesting was to occur on October 15, 1983.

The trial court’s judgment will only be reversed pursuant to non-compliance with standards in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

On appeal the husband says the $1200.00 award of maintenance for 5 years was excessive because the court incorrectly speculated the husband’s pay would stay approximately the same; that it was an attempt to divide marital property, and because the trial judge incorrectly believed the award could be modified. Despite the husband’s arguments, if there is any reasonable theory by which the same judgment can be reached, then the judgment should be affirmed. In Puckett v. Puckett, 632 S.W.2d 83 (Mo.App.1982), the husband appealed the trial court’s division of marital property, arguing that the court had misapplied the law. However the court affirmed the award because based on the review of the entire record, the award could reasonably be justified on other grounds.

In this case there is no dispute with the following facts:

1. Wife desired to earn a college degree over four years in order to be self-sufficient.
2. Wife’s living expenses were $1,767.00 per month.
3. Wife did not have sufficient property to provide for her support, and was unable to support herself through appropriate employment.
4. Husband’s net monthly income at the time of the decree was $1,986.20 (including his $200.00 per month to his credit union and $100.00 per month that would no longer be deducted for insurance).
5. Six days after the decree husband anticipated an increase of his hourly wage of approximately $0.40 per hour and would be receiving $510.00 per month for a housing allowance.

The trial court may have also taken into account husband’s possibility of overtime pay, and erroneously assumed that if the overtime did not come to pass it would be a basis for him to come back to modify the decree. Doerflinger v. Doerflinger, 646 S.W.2d 798, 801 (Mo. banc 1983). But apart from this error there is substantial evidence to show that wife needed the $1200.00 per month and that the husband would get a slight raise plus a living allowance that would negate $510.00 a month in his projected expenses. The trial court’s determination as to the amount and time of the maintenance was not an abuse of the trial court’s considerable discretion and does not require reversal. Steinmeyer v. Steimneyer, 669 S.W.2d 65, 67 (Mo.App.1984).

The husband’s second contention is that because his pension fund with Armco was not vested at the time of the dissolution decree, it was not marital property subject to division. He does not, however, contest the valuation of the pension nor the fifteen percent awarded wife if and when he retires.

The pivotal case for this question is Kuchta v. Kuchta, 636 S.W.2d 663 (Mo. banc 1982), where the Missouri Supreme Court held for the first time that pension benefits earned during the marriage were marital assets. See also Abanathy v. Abanathy, 657 S.W.2d 51 (Mo.App.1983). Reduced to the lowest common denominator, the husband here contends a “Stage I” (non-vested, non-matured) plan, as designated in Kuchta, that gives benefits to the non-employee spouse after the dissolution, should not be considered a marital asset. This argument is bolstered by the fact that Kuchta and subsequent Missouri cases have dealt only with “Stage II” (vested but non-matured as factually involved in Kuch-ta) and “Stage III” (vested and matured— so if terminated the employee could presently get certain benefits).

The husband tries to argue that because Kuchta, and subsequent cases like Cregan v. Clark, 658 S.W.2d 924 (Mo.App.1983), dealt with vested but not matured pension rights, that non -vested, non-matured rights cannot be marital property. Certain language in Kuchta as next cited is also noted as casting doubt on whether Stage I plans were to be marital property:

Even a casual reading of the somewhat artificially designed “time-periods” makes it apparent that a trial court, if it deemed proper in the first instance, could act with a relative degree of certainty during Stage I or Stage III, with more lingering doubts in the latter.

See also Note, Pension Rights a Marital Property: A Flexible Approach. 48 Mo.L. Review 245 (1983).

The husband misses the true result of Kuchta, 636 S.W.2d at 664, as evidenced when the court said:

[WJhether or not present or prospective pension rights are to be classified as marital property is no longer of primary concern, but rather the manner by which the trial court can treat the same in seeking to reach a fair and equitable division thereof if necessary to comply with § 452.330. (Emphasis added.)

The court also emphasized that a pension is not earned on the last day of employment prior to retirement but is earned over the entire period of employment. Whether or not the pension was vested at the time of the decree is not dispositive. In Mills v. Mills, 663 S.W.2d 369, 372 (Mo.App.1983), the husband complained that there was no evidence that his pension plan had vested, yet the court held that even though a spouse’s interest is contingent or subject to divestment does not prevent it from being marital property.

At the time the trial court entered the initial decree in this case, husband was four months away from having his pension vest. Had the husband’s employment been terminated with Armco during that four months, it is true that husband would have received no pension. However, neither would the wife, for the decree was structured so that wife would receive her fifteen percent only after the pension was vested and if husband retired. The uncertainties of a Stage I plan did dictate the style of the award, but these uncertainties should not utterly defeat any award. This method of fashioning a certain portion of the retirement benefits to be paid if, as, and when the employee spouse actually receives payments was mentioned in Kuchta, 636 S.W.2d at 666 and was approved in Alvino v. Alvino, 659 S.W.2d 266 (Mo.App.1983). The method chosen here by the trial court certainly, “divides equally the risk that the pension will fail to [mature].” Kuchta, supra, at 666.

The spirit of Kuchta is that the elusive nature of attaching present and future values on pensions that may never bloom into cash dollars, should not alone keep the court from awarding the non-employee spouse a portion of those moneys. Neither should the high risk of forfeiture of Stage I benefits keep these plans from being designated marital property. Kraus-kopf, Pension Benefits: Valuing and Dividing at Marriage Dissolution. Journal of the Missouri Bar, March 1984, page 81. This court holds Stage I plans are not precluded from the marital estate.

The judgment is affirmed.

All concur.


author: CRANDALL, Judge.

text:
    Andre CHATMAN, Respondent, v. CIVIC CENTER CORPORATION, Appellant.
    No. 48212.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 2, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Daniel T. Rabbitt, St. Louis, for appellant.
    Michael John Coleman, St. Louis, for respondent.
   CRANDALL, Judge.

This is an appeal from a default judgment rendered in favor of plaintiff in his action for bodily injuries. We dismiss the appeal.

On April 25, 1983, plaintiff, Andre Chat-man, brought an action against defendant, Civic Center Corporation, for damages arising out of bodily injuries that he sustained when he slipped and fell while working on defendant’s property. On April 29, 1983, personal service was had on C.T. Corporation System, defendant’s registered agent in Missouri. Defendant failed to respond, and plaintiff, pursuant to Rule 74.045, obtained an interlocutory judgment by default nihil dicit on August 31, 1983. On September 15, 1983, plaintiff waived a jury and the trial court held a hearing to determine damages in accordance with Rule 74.-10. Judgment was entered for plaintiff for $100,000, the amount prayed for in plaintiff’s petition.

On October 14, 1983, twenty-nine days after the entry of the judgment, defendant filed a motion in the trial court seeking in the alternative: (1) to set aside or vacate the judgment, (2) for a new trial, (3) for remittitur, and/or (4) a petition for review of the default judgment under Rule 74.15. The trial court held a hearing on the motion on October 28, 1983. The motion was denied on December 8,1983. Defendant filed his notice of appeal on December 16, 1983.

On appeal, defendant contends that the trial court erred in overruling defendant’s motion because (1) plaintiff failed to state a claim upon which relief could be granted, (2) plaintiff was contributorily negligent as a matter of law, and (3) the judgment entered in the amount of $100,000 was excessive and not supported by evidence.

We first consider the procedural posture of this case.

A default judgment is not appeal-able in the absence of a motion to set aside or vacate the judgment. VonSmith v. VonSmith, 666 S.W.2d 424 (Mo. banc 1984), on retransfer, 666 S.W.2d 426 (Mo.App.1984); Wait v. Wait, 669 S.W.2d 632 (Mo.App.1984). In this case the defendant filed a motion to set aside or vacate, or for a new trial, or for remittitur, but did so more than fifteen days but less than thirty days after the judgment was entered by the trial court. “If ... a motion to set aside judgment is filed within the fifteen days after judgment is entered, it may be treated as a motion for new trial; extending the time during which the court may act from thirty to ninety days.” State ex rel. Stoffer v. Moore, 628 S.W.2d 637, 643 (Mo. banc 1982). “Such a motion made more than 15 days after judgment will not extend the trial court’s jurisdiction beyond the 30 day period.” State ex rel. Campbell v. Anderson, 536 S.W.2d 200, 202 (Mo.App.1976). The fifteen-day requirement was not met in this case by the defendant, meaning the time in which the trial court could act was not extended as it would have been under Rule 81.05 if the motion had been timely filed. The motion here served “only as a suggestion to the trial court to exercise the powers conferred upon it by Rule 75.01 to vacate the judgment provided that power was exercised ... 30 days after the judgment entry.” Caldwell Paint Manufacturing Co. v. Lebeau, 591 S.W.2d 1, 5 (Mo.App.1979). Since the trial court did not act within the time constraints of Rule 75.01, the judgment became final for purposes of appeal on the thirtieth day after its entry, October 15, 1983. The defendant then had ten days within which to file its notice of appeal. Rule 81.04. Defendant filed its notice of appeal on December 16, 1983.

Defendant places strong emphasis on State ex rel. Brooks, etc. v. Gaertner, 639 S.W.2d 848 (Mo.App.1982), where a judgment entered May 14, 1981, was not deemed final until August 17, 1981. However, this court so held because that date was when all issues between all parties had been finally resolved. Rule 74.08; Sherrill v. Wilson, 653 S.W.2d 661, 663 (Mo. banc 1983). In the present case there was only one defendant and all issues had been resolved.

We hold that although defendant had a right in this case to appeal from the default judgment, the notice of appeal was untimely filed. Defendant is therefore now precluded from a direct appeal from the judgment of the trial court.

In view of our holding, there is no need to address the substantive issues raised by the defendant. Defendant’s appeal is dismissed.

DOWD, P.J., and CRIST, J., concur.

      . Defendant did not appeal the denial of his petition for review. Although there is mention in the parties’ briefs of the applicability of a Rule 74.32 motion to this case, no such motion was filed in the trial court and therefore that issue is not presented in this appeal.


author: DONALD BARNES, Special Judge.

text:
    Henry THOLE, Ralph Thole, John Lograsso, Jack Hale, Harry Schlotte, Chet Swalley, W & S Novelty, Inc. and American Cigarette Vending Company, Petitioners-Respondents, v. George R. WESTFALL, Prosecuting Attorney of St. Louis County, Mo., Countermovant-Appellant.
    No. 47929.
    Missouri Court of Appeals, Eastern District, Division Twelve.
    Oct. 9, 1984.
    Motion for Rehearing and Transfer Denied Nov. 20, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Thomas W. Wehrle, Timothy L. Grosch, Clayton, for countermovant-appellant.

      Roy A. Walther, Jr., J. Martin Hadican, Dewey S. Godfrey, Jr., Robert Herman, St. Louis, for petitioners-respondents.
   DONALD BARNES, Special Judge.

This is an appeal of several cases which were consolidated at trial below. All the cases involve video games that were seized, pursuant to warrants, from several bars and taverns in St. Louis County on August 5, 1982. The sole issue for our consideration is whether the court below misinterpreted and misapplied Missouri gambling laws in holding that none of the games was a gambling device subject to forfeiture under § 572.120 RSMo 1978.

The games are described in the record as “Omega Double Up”, “Royal Flush”, “Electro Sport Draw Poker”, “Electro Sport Draw Poker II”, “Double Up”, “Draw 90 Card Game”, “Draw 80 Card Game”, “Tuni Electro”, “Draw Poker Video”, “Draw Poker”, “Sweet Shawnee II”, “Shawnee # 2”, “Kenney Sweet Shawnee”, “Circus Days”, and “Players Choice”. All were leased, usually under oral profit sharing arrangements, by their respective owners (Respondents herein) to the bars and taverns from which they were seized.

The characteristics and play of the machines are not in dispute. Four simulate slot machine play, one features Black Jack poker and the remainder are programmed to simulate some of the elements of draw poker. The electronic circuitry of the slot machine devices is programmed to produce, at random, images of various objects which “rotate” on the screen. When the “rotation” stops, the player is awarded “points” if designated combinations of objects are shown or highlighted. The circuitry of the poker devices produces an electronic simulation of a hand of five cards, in the case of draw poker, or two hands of two cards (the “dealer’s” and the player’s), in the case of Black Jack. After the cards are displayed, the player must press a button to indicate whether he wishes to “stand pat” or, in the ease of draw poker, to discard and have replacement cards “dealt” or, in the case of Black Jack, to simply have additional cards “dealt”. If the resulting hand is a winning hand according to the rules of the respective games, the player is awarded “points”. Some devices allow players to accumulate up to 9,999 points.

All machines are coin operated accepting from a single coin to multiples of coins, in some cases hundreds of coins (generally quarters) at a time and will credit the player one “point” for each coin inserted. The machines are programmed so that points credited for coins and points won for successful play may be used in the same manner: either may be used to replay the device and, on some machines, may also be bet, up to ten at a time, on any one replay. All points, whether won or paid for, are thus equal in value to an equivalent number of coins.

On most machines, points of players who do not wish to continue play may be erased by using a “knock down” button or switch. The number of points so erased is either recorded on meters concealed from public view or stored in “memory” and brought up only by flipping a special switch or entering a special code. At trial, the owners of these machines testified they were aware of this recording feature but could not explain its purpose. Appellant’s expert witness, William L. Holmes, an agent with FBI gambling unit, testified that a record of total points erased was useful only if someone were making payoffs for points won and needed a record of points paid off (points erased) so that he could be reimbursed by the machine’s owner.

Although there was no evidence that cash payoffs had been made on the machines in issue, Officer Schupp of the St. Louis County Police Department testified that, in the course of his department’s investigations, he had observed bar owners making cash payoffs on an “Omega Double Up” and “Draw 90” like those in issue. He testified that bar owners made the payoffs (ten dollars for forty points and thirty dollars for one hundred twenty points) and then erased the points paid off.

The trial court held that, since the machines in issue directly pay off only in free replays, they are capable of innocent use and thus may not be declared forfeit without evidence that other types of payoffs have been made. Appellant, the Prosecuting Attorney for St. Louis County, contends the trial court, in so holding, misinterpreted and misapplied the applicable gambling laws.

We begin with the fundamentals. In Missouri, a machine may be deemed a gambling device even when there is no showing that it has been used for gambling. § 572.010(5) RSMo 1978 defines gambling devices to include devices that are usable, as well as those that are used, in gambling. Of course, not every device that is merely usable in gambling may be seized. Such a device, with the exception of a slot machine, is subject to seizure only if its possessors knew or had reason to believe it was to be used in gambling. §§ 572.120 and 572.070 RSMo 1978. When it is obvious, from the appearance and play of a device, that it was specifically devised for gambling, the device itself will be circumstantial evidence that its possessors knew it was to be so used. Whether or not such a device is capable of innocent use is irrelevant; any device may be used innocently just as any device may be used in gambling.

§ 572.010(4), (3), (12) RSMo 1978 provide the basis for determining whether a device is specifically devised for gambling. These definitions show that gambling includes playing games wherein 1) players stake or risk something of value, 2) chance is a material factor and 3) successful play is rewarded by “something of value”. The only game expressly excluded from the definition of gambling is “an amusement device that confers only an immediate right of replay not exchangeable for something of value”. Thus, a device should be considered an inherent gambling device — a gambling device per se — if it 1) features a game with the aforementioned elements and 2) does not fall within the statutory exception.

We believe that the devices in issue feature games with all the gambling elements. Players must insert coins in order to initiate play, and it is obvious from the character of the featured games that this money is “staked or risked”. It is also apparent that the outcome of the games depends, in a material way, upon the element of chance. In the slot machine games, the objects that appear on the screen are determined by the devices’ electronic circuitry and the player has no control over which combination of objects will appear. Thus, from the player’s point of view, winning is purely a matter of luck, a matter of chance. In the Black Jack and draw poker games, the player decides whether additional cards will be dealt but has no control over other factors materially affecting the composition of the final hand: the cards initially displayed and the cards selected either as additions to the original hand (in the case of Black Jack) or as replacements for the discards (in the case of draw poker) are determined by the games’ electronic circuitry. Thus, for even the most exceptional player, chance plays a significant role in determining whether he wins or loses. And finally it is clear that, upon successful play, the seized devices award “something of value”. “Something of value” is defined, in § 572.010(12) RSMo 1978, to include, among other things, any form of credit “involving extension of ... a privilege of playing at a game ... without charge”. It is undisputed that the points awarded on these devices may be used to replay the games without charge.

We also do not believe that all of the games fall within the statutory exception. The only “free replay” device exempt from the definition of gambling is “an amusement device that confers only an immediate right of replay not exchangeable for something of value (emphasis added)”. § 572.010(4) RSMo 1978. On some of the machines, the number of replay points potentially awardable is so great that it may be assumed that they are exchangeable for something of value. More significantly, most of the devices record total “replay points” erased, and this record serves no useful purpose unless these points have been exchanged for cash payoffs or other things of value. Where points have been so exchanged, such a record is very useful as it enables the owner of the device to calculate total payoffs made by those he must reimburse. We therefore hold that, where a device capable of awarding hundreds of free replays (which perhaps would take hours to days to play off) records information that has no purpose unless replay rights are exchanged for other things of value, there is no merit in the contention that the device awards only “an immediate right of replay not exchangeable for something of value”.

The trial court also held that there was no evidence that the owners of any of the devices had reason to know they were to be used in gambling. We disagree. Video poker and slot machine games that are designed to award hundreds of “replays” and to count and record cancelled “replays” are, in and of themselves, clear and convincing circumstantial evidence that their possessors knew they were intended for use in gambling. Their owners' mere assertions that they did not know the devices were used for gambling will not bar forfeiture.

Although whether a device is inherently a gambling device is purely a matter of state law, we note that: 1) Pennsylvania and Illinois have found devices with meters for recording cancelled replays to be gambling devices per se. See Com. v. Two Electronic Poker Game Machines, 502 Pa. 186, 465 A.2d 973 (1983); People v. One Machine Known as “Circus Days”, 23 Ill.App.2d 480, 163 N.E.2d 223 (1960); 2) the fact that owners had removed switches for erasing credits was significant in a recent Kansas decision holding that video poker games were not gambling devices. See Games Management, Inc. v. Owens, 233 Kan. 444, 662 P.2d 260, 263 (H3) (1983); 3) Meters for recording erased points have long been deemed significant in determining whether “free replay” machines are gambling devices. See 38 Am.Jur.2d Gambling § 92; “Gambling”, 269 Annals of the American Adacemy of Political and Social Science 62-70 (1950); See also United States v. Two Coin-Operated Pinball Machines, 241 F.Supp. 57, 59 (W.D.Ky.1965); Szybski v. United States, 220 F.Supp. 806, 811 (E.D.Wisc.1963).

We thus reverse and remand for proceedings consistent with this opinion.

SNYDER, J„ and DOUGLAS GREENE, Special Judge, concur.

      . Respondents also contend that the applicable provisions of the Missouri Gambling Code are unconstitutionally vague. This contention was not raised below and we find no merit in it.

      . Some of the slot machine games also give winning players the option of holding objects over to the next rotation and betting "double, triple or nothing” on that rotation.

      . Many draw poker machines also have a "double up” option whereby a winning player can bet the points he’s won, “double or nothing”, on whether the next randomly "dealt” card is above or below an eight.

      .Owners’ responses to questions about the purpose of recording total points were: “This came with the machine. I didn’t make the machine that way.” "If you didn’t have that, you wouldn’t get a true picture of what the machine is doing ... this is what they tell me. Now I don’t know. All I know is what they tell me." "That's the way the machine came ... I don’t use it.”

      . Section 572.120:
      "Any gambling device or gambling record, or any money used as bets or stakes in unlawful gambling activity, possessed or used in violation of this chapter may be seized by any peace officer and is forfeited to the state...".
      Section 572.070:
      “1. A person commits the crime of possession of a gambling device if, with knowledge of the character thereof, he manufactures, sells, transports, places or possesses, or conducts or negotiates any transaction affecting or designed to affect ownership, custody or use of:
      (1) A slot machine; or
      (2) Any other gambling device, knowing or having reason to believe that it is to be used in the state of Missouri in the advancement of unlawful gambling activity...

      . In a forfeiture proceeding, evidence that a possessor had reason to know... must be "clear and convincing" but need not be "beyond a reasonable doubt”. See § 542.301(4) RSMo Supp.1984.

      . Section 572.010:
      “ ‘Gambling’, a person engages in ‘gambling’ when he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he will receive something of value in the event of a certain outcome. Gambling does not include bona fide business transactions valid under the law of contracts, including but not limited to contracts for the purchase or sale at a future date of securities or commodities, and agreements to compensate for loss caused by the happening of chance, including but not limited to contracts of indemnity or guaranty and life, health or accident insurance; nor does gambling include playing an amusement device that confers only an immediate right of replay not exchangeable for something of value;”
      Section 572.010(3):
      “ ‘Contest of chance’ means any contest, game, gaming scheme or gaming device in which the outcome depends in a material degree upon an element of chance, notwithstanding that the skill of the contestants may also be a factor therein;”
      Section 572.010(12):
      "‘Something of value’ means any money or property, any token, object or article exchangeable for money or property, or any form of credit or promise directly or indirectly contemplating transfer of money or property or of any interest therein or involving extension of a service, entertainment or a privilege of playing at a game of scheme without charge;”
      Since gambling includes many diverse activities — lotteries, bookmaking, direct play between individuals, play by individuals on mechanical contrivances — the definitions relating to gambling are necessarily broad. See “Gambling Laws of Missouri”, 7 Journal of the Missouri Bar 85 (May 1951).

      . In Missouri, chance must be a material element in determining the outcome of a gambling game. It need not be the dominant element. See § 572.010(3) RSMo 1978 and Comments to § 572.010 RSMo 1978.

      . Even on machines with the option described in fn. 2, supra, a player makes no decisions and otherwise has no control until after a "rotation". Thus, although knowledge of the total number of objects on these devices could be helpful in deciding whether to play the option, chance is very significant in determining one’s winnings since chance determines whether a player has the opportunity to play the option. And, since the option involves another randomly generated “rotation”, chance plays a material part in the outcome of the option play as well.

      . Two of respondents' expert witnesses, both professors of electrical engineering, stated that tests they conducted showed that a player with knowledge of probability theory will, on the average, win significantly more video poker games than one without this knowledge. This testimony does not conflict with our holding that chance is a material element in the play of these games. The outcome of a game may depend significantly on chance "notwithstanding that the skill of the contestants is a factor therein”. § 572.010(3) RSMo 1978.
      It should perhaps also be noted that, "the test of whether a game is one of skill or chance ... is not ... measured by the standard of experts or any limited class of players, but by that of the average skill of the majority of players likely to play the game...”. State v. Prevo, 44 Haw. 665, 361 P.2d 1044, 1051 (1961).

      . We also note the evidence that payoff percentages on these games are generally determined either by the programming or by adjustable dials on the machines. Thus, in the long run, players can win no more than the machine allows.

      . The comments to § 572.010 RSMo 1978 indicate that the exception was added to exclude “trivial amusement such as an additional pinball game (emphasis added)”. We do not believe any "game of chance” that awards hundreds of free replays is covered by this exclusion. It might be added a claim that the repeated insertion of a coin or many coins into a machine to watch objects, numbers or cards appear at random in display windows, each operation completed in five seconds or less, could be “amusing" to even a grade school boy stretches one’s imagination.


author: CLARK, Presiding Judge.

text:
    Rodney McKOWN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 34955.
    Missouri Court of Appeals, Western District.
    Oct. 9, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Fred Duchardt, John R. Shank, Public Defender for Seventh Judicial Circuit, Liberty, for appellant.
    Frank A. Rubin, Asst. Atty. Gen., Jefferson City, for respondent.
    Before CLARK, P.J., and DIXON and LOWENSTEIN, JJ.
   CLARK, Presiding Judge.

Appellant instituted this action under Rule 27.26 to repudiate his prior plea of guilty to the charge of first degree murder and to set aside the judgment of conviction and sentence. Principally relied on by appellant as grounds for relief were the claims that the conviction was fatally defective for want of a preliminary hearing as to the charge of first degree murder and that the plea was involuntary because defense counsel overreached and coerced appellant to forgo a jury trial. Error by the trial court in its rulings on these contentions constitutes the substance of points presented on this appeal.

The facts of the case are of minimum significance in resolution of the appeal. It suffices to say that appellant and one Edg-man participated in the robbery of a victim who was thereafter beaten and subsequently died. At no time has there been any question of appellant’s participation in the robbery, but it is not entirely clear which of the assailants, appellant, Edgman or both, struck the fatal blows.

Appellant was charged with capital murder and that complaint stood until the day the guilty plea was entered. The prosecutor and defense counsel had discussed a reduction in charge in exchange for a plea and counsel, in turn, relayed these discussions to appellant. The record suggests that throughout a period of some eleven months while awaiting trial, appellant had no expectation of entering a plea and was optimistic as to the results which would follow a jury trial. Defense counsel, to the contrary, was of the opinion that appellant's appraisal of the case was unrealistic.

Trial of the case was scheduled for October 6, 1980. During the preceding week, defense counsel discussed a proposed plea bargain with the prosecutor and with appellant. The agreement was for a plea of guilty to a charge of first degree murder, the benefit to appellant being avoidance of a death sentence or a life sentence without parole for fifty years. In the course of discussions with appellant, counsel displayed photographs of the crime scene and informed appellant that workers at the TWA plant in Platte County had wagered on the trial outcome with odds favoring imposition of the death penalty. The attorney encouraged appellant to accept the plea agreement and appellant acceded. The plea was entered October 1, 1980.

As to the first point, the failure to provide appellant a preliminary hearing, the subject impinges upon one which has provoked controversy within the Missouri Supreme Court since 1982, that is, whether first degree murder is a lesser included offense within a charge of capital murder. The issue arises in this case because on the day of the plea hearing, the state purported to reduce the charge against appellant by amending the original information from the charge of capital murder to first degree murder. No formality, as would be juris-dictionally requisite in the case of a new charge, accompanied the amendment and appellant was not provided a preliminary hearing and did not expressly waive that right.

In State v. Gladies, 456 S.W.2d 23 (Mo.1970), the defendant was charged by information with assault with intent to rape. The prosecutor undertook to amend the information by adding the words, “with malice aforethought.” Different statutes proscribe the respective acts. The court held the purported amendment and subsequent proceedings to be a nullity because an amendment may not be made to alter an information so that the amended charge is distinct and different from the original charge. So, also, in State v. Couch, 523 S.W.2d 612 (Mo.App.1975) was it held that § 545.300, RSMo 1978 and then Rule 24.02, now Rule 23.08, prohibit amendment of an information to charge another offense. If capital murder and first degree murder are distinct and different offenses, then the amended information, on which appellant’s plea in this case was based, was a nullity as were the judgment and sentence which followed. A judgment rendered on an amended information charging a different offense is a nullity because the impermissible amendment rises to a denial of due process of law. State v. Amerson, 661 S.W.2d 852 (Mo.App.1983) citing State v. Burnside, 527 S.W.2d 22 (Mo.App.1975).

On the theory that a lesser included offense is not a different offense, an information may be amended to reduce a charge because the amendment is conceptually within the scope of the original complaint and preliminary processes. State v. Gladies, supra, State v. Couch, supra, State v. Amerson, supra. Thus, the question in this case, as to appellant’s first point, is whether first degree murder is a lesser included offense of capital murder. If it is, then the amended information was permissible and the judgment of conviction is not vulnerable for failure of the state to proceed against appellant as on a new charge.

The offense in this case was committed on July 20, 1979 and the plea proceedings were conducted on October 1, 1980. The penalty and offense statutes applicable were therefore those of the new criminal code which became effective on January 1, 1979. At the time appellant entered his plea, the controlling case law appeared to be that exemplified by State v. Daugherty, 631 S.W.2d 637 (Mo.1982) which held that first degree murder was a lesser included offense of capital murder. Thereafter, however, the court decided State v. Baker, 636 S.W.2d 902 (Mo. banc 1982), cert. denied, 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983). That case held that the prior cases ruling offenses under the 1979 homicide statutes were in error because those cases had relied on previous but inapplicable statutes. Baker held first degree murder not to be a lesser included offense of capital murder under § 556.046, RSMo 1978.

Under the authority of Baker, appellant’s contention here would be sound and the information which first charged capital murder could not be amended down to charge first degree murder. Baker, however, was not the last word on the subject. The court next considered the question in State v. Goddard, 649 S.W.2d 882 (Mo. banc 1983). There the court ruled that the decision in Baker was not retroactive but was prospective and had no application to Goddard’s trial which was conducted August 31, 1981. The point was significant to Goddard because he was charged with capital murder but was convicted of first degree murder on instruction which submitted that offense as a lesser included offense. The Goddard rationale was reaffirmed in State v. Holland, 653 S.W.2d 670 (Mo. banc), cert. denied, — U.S. -, 104 S.Ct. 495, 78 L.Ed.2d 689 (1983).

Whatever may be the merits of the respective contentions on the subject, the express pronouncement and controlling decision of the Missouri Supreme Court gives the Baker decision prospective application only and we are obligated to follow that authority. Appellant’s case tried before Baker is not to be decided under the Baker rule, but by the prior law. As the decided cases before Baker construed the law, first degree murder is a lesser included offense of capital murder under the 1979 code and the amendment of the information here was permissible under Rule 23.08.

In his second point, appellant contends that his plea was involuntary and was the product of the duress and coercion of his attorney. The supporting facts are those which were described earlier. The evidence was generally not in conflict, the sole question being whether the conduct of defense counsel amounted to coercion. The trial court ruled that it did not and substantial evidence supports that conclusion.

A reasonable survey of the situation shows that as trial approached, defense counsel was concerned that appellant was facing a possible death sentence but had not realistically faced the prospect. Discussion with appellant as to the wagering among TWA employees was calculated to convey to appellant the actual circumstance of community hostility aroused by the crime. The display of prospective photographic evidence obtained from the state was intended to give appellant some advance idea of what the prosecution would offer and what a jury would see. These were important facts of which appellant needed to be aware and it was the attorney’s obligation to alert appellant to the potential risk. Wright v. State, 549 S.W.2d 554 (Mo.App.1977).

Defense counsel, by his testimony at the motion hearing, established that he was fully prepared to try appellant’s ease and no evidence contains any suggestion to the contrary. It was the attorney’s opinion that the plea to the reduced charge was in appellant’s best interest. We find no evidence that the attorney’s advice exceeded that which it was his duty to supply or that any fear or apprehension entertained by appellant was other than that properly a consequence of the seriousness of the crime and the likelihood of conviction. This is not a case in which, as in appellant’s cited case of State v. Williams, 361 S.W.2d 772 (Mo. banc 1962), the defendant has been misled and the misapprehension has caused a plea of guilty to be entered. The trial court found appellant’s plea to have been knowing and voluntary and his counsel’s representation to be effective. We agree.

The judgment is affirmed.

All concur.

      . See the dissenting opinion of Welliver, J., State v. Holland, 653 S.W.2d 670, 679 (Mo. banc), cert. denied 104 S.Ct. 495 (1983). No attempt is made here to deal with the problem noted by Rendlen, CJ. as to what retrospective effect should be given Baker where the issue is whether or not the evidence supports the first degree murder instruction. That question is not posed here.


text:
    Frank J. MURPHY, as Guardian ad Litem for the Person and Estate of Gary Fetterolf, Respondent, v. James R. SMITH and Helen Smith, Appellants.
    No. WD 35706.
    Missouri Court of Appeals, Western District.
    Oct. 9, 1984.
    Motion For Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.
    Application to Transfer Denied Jan. 15, 1985.
    Elwyn L. Cady, Jr., Independence, for appellants.
    Frank J. Murphy, Hillix, Brewer, Hoff-haus & Whittaker, Kansas City, for respondent.
    Before CLARK, P.J., and MANFORD and LOWENSTEIN, JJ.
   CLARK, Presiding Judge.

After a bench trial, appellants James R. Smith and Helen Smith were ordered removed as guardians of the person and estate of Gary Fetterolf, an incompetent. On this appeal, the Smiths contend the judgment of removal was in error because their conduct was responsive to their statutory duties as guardians. Affirmed.

Gary Fetterolf was injured in an automobile accident December 27, 1970 and on March 10, 1971, he was declared incompetent, the consequence of a head injury suffered in the accident. The Smiths, on their own application, were appointed guardians of Fetterolf’s person and estate. For many years, Fetterolf has been a patient at the Marshall State School and Hospital. He is totally incapacitated.

Patients at the Marshall institution are billed for the cost of care based on ability to pay. For the purpose of determining that ability, a report of individual resources is required. The Smiths made such a report on behalf of Fetterolf and represented that he and his estate were possessed of only minimal and inconsequential assets. As a result of Fetterolf s apparent indigen-cy, his charge for daily care was assessed at $1.66.

In 1977, it first came to the attention of officers at the Marshall institution that the Smiths had been receiving social security benefit payments on account of Fetterolf’s disability and had accumulated a fund which then amounted to $10,439.15. The state recomputed the amount owed for Fetterolf s past care based on the true resources of the estate and presented a claim to the probate court. In that proceeding, Department of Mental Health v. Smith, Jackson County Circuit Court No. PR79-112492-01, the court found that the Smiths “knowingly, willfully, wrongfully and falsely” had misrepresented to the Department of Mental Health the extent of the estate’s assets. The claim was allowed in the amount of $13,828.13 plus accrued interest from September 1,1971 to December 31, 1978 amounting to $2,348.33. At the date of trial of the present case, the claim remained unpaid by the guardians and had accumulated interest at 9% a year since the date rendered.

When the state acquired notice of the Fetterolf social security benefit entitlement in 1977, the monthly contribution requirement for future care was redetermined and was increased thereafter as social security payments were adjusted nationally. The guardians also failed to pay these monthly care bills regularly and, as of the date of trial, an additional delinquency amounting to $1,184.08 had accumulated. That amount did not subsequently increase because, pursuant to state action in 1983, the Department of Mental Health has been designated representative payee and has received the social security payments for Fetterolf’s account.

The judgment in this case ordered appellants removed as guardians for several enumerated reasons among which were failure to pay the allowed claim of the Marshall State School and Hospital, the failure to pay current charges in full incurred by the incompetent at the Marshall institution during the period from 1979 to 1982 and because the continued status of the incompetent as a patient at the Marshall facility was jeopardized by the failure of the guardians to pay the ward’s accounts.

Appellants’ brief and argument are less than models of clarity and the statement of the single point on appeal is of doubtful relevance or application to the facts. As best the contention can be interpreted, however, the guardians assert that the amount of the allowed claim for past care of the incompetent exceeded the funds of the estate and, therefore, in discharge of their duties as guardians, appellants were obligated not to make payment on the claim until forced to do so. This, they say, necessitated a recourse by the state to execution, as provided in § 475.260, Laws of Mo.1983, p. 885, through application of § 473.573, RSMo 1978. The appellants’ position is that they breached no duty by requiring the Marshall school to enforce its allowed claim by execution against the guardians.

We assume for disposition of the point, although the record provides no confirmation, that present assets of the guardianship estate amount to less than the balance of the judgment awarded the Department of Mental Health on its claim. The fact remains, however, that the claim has been allowed after vigorous contest by appellants. Section 475.213, Laws of Mo. 1983, p. 884 required the guardian to pay all allowed claims, as far as he has assets. If potential but unallowed claims against an estate offer the prospect that limited estate assets may require payment in discounted amounts, the guardian is obligated by the statute to provide the clerk of the court with names and addresses of creditors for the purpose of giving notice. Within the time specified after notice, the guardian may then consider unfiled claims as barred and pro rata distribution may be made.

In this case, appellants have not suggested that any other claims may be outstanding against this estate and there has been no showing that expenses of administration have been allowed or will be allowed. Apart from court costs, the amount of which has not been described, the sole obligation of the estate, discernable from this record, is the subject claim due the Department of Mental Health. It is the sheerist sophistry to assert, as do appellants, that they are somehow fulfilling a fiduciary duty by requiring the creditor, the Department of Mental Health, to resort to execution to force appellants to meet their statutory duty to pay the claim to the extent of estate resources.

The trial court found that appellants should be removed as guardians because they failed to pay the allowed claim of the Department of Mental Health without just cause or excuse. That finding was amply supported by the evidence for the reasons mentioned above. Appellants’ removal, however, was not conditioned alone on this finding. Although appellants contest their removal only as unjustified because of the claim circumstance, the trial court recited other grounds for its judgment.

According to the evidence, appellants also failed to pay when due other bills rendered by the Marshall facility for board, care and clothing of the ward and, as a consequence of the continuing delinquencies in the account, the status of Fetterolf as a patient at the hospital was placed in jeopardy. In short, while appellants accumulated a large sum of money in the estate account, the beneficiary was dependent upon state charity, as a matter of grace potentially terminable from day to day, for his board and care. The court found that in so doing and by incurring the expenses associated with the misrepresentation of the estate assets and the subsequent claim proceedings, appellants mismanaged the financial affairs of the ward to his potential detriment. The record also supports this finding made by the trial court.

The trial court properly ordered the letters of guardianship previously issued to appellants revoked. That judgment is affirmed.

All concur.

      . The term "conservator" has been substituted in the 1983 amendment to the statute and “pro-tectee” is used in place of ward or incompetent.


author: REINHARD, Chief Judge.

text:
    Kristy L. KESLER, Appellant, v. Robert E. KESLER, Respondent.
    No. 48036.
    Missouri Court of Appeals, Eastern District, Division Six.
    Oct. 9, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.

      Robert R. Young, Timothy S. Murphy, St. Louis, for appellant.
    James J. Knappenberger, Clayton, for respondent.
   REINHARD, Chief Judge.

Wife appeals from a decree of dissolution challenging only a provision of the decree relating to the temporary custody of the minor child.

The parties had a marriage of short duration. There was one child born of the marriage, Jonathan. At the time of the hearing he was 8 months old. He was born premature and spent several weeks in the hospital. He underwent surgery in March, 1983 and may need another operation. According to his mother he was allergic to certain clothing, fabrics and food and required a special diet and clothing.

Husband, at the time of the hearing was a private in the army stationed in Tennessee. In April, 1984, he was due to be transferred to an army post in West Germany. Husband testified that if granted temporary custody he would come to St. Louis on weekends and take the child to his mother’s house in Union. He agreed to follow any instructions given by the wife concerning formula, medication, diapers and clothing. The home in Union had everything a baby needed including a play pen, crib, and swing.

After hearing the evidence, the trial court dissolved the marriage, set aside separate property to the parties, awarded the marital property, awarded custody of Jonathan to wife with an award of child support, and awarded temporary custody of Jonathan to husband from 10:00 a.m. Saturday to 5:00 p.m. Sunday on alternate weekends. The court further decreed that “[o]n weekends when [husband] is unable to be in St. Louis County temporary custody rights shall be exercised by the child’s paternal grandmother.”

We note that the grandmother was not a party to this proceeding and neither filed a motion to intervene, testified or presented any evidence. Husband made no request that his mother exercise his rights in his absence. On appeal, wife contends that the provision of the decree allowing the husband’s mother to exercise husband’s temporary custody rights was error.

Section 452.400.3, RSMo.Supp.1983, provides:

The court may grant reasonable visitation rights to either the maternal or paternal grandparents of the child and issue any necessary orders to enforce the decree. A maternal or paternal grandparent shall have the right to intervene in any dissolution action solely on the issue of visitation rights; the grandparents shall also have the right to file a motion to modify the original decree to seek visitation rights when visitation rights have been denied to them. The court shall determine if the visitation by the grandparent would be in the child’s best interest or if it would endanger the child’s physical health or impair his emotional development.

In Hamilton v. Hamilton, 622 S.W.2d 252, 253 (Mo.App.1981), paternal grandparents filed a motion to intervene in a dissolution proceeding and requested visitation rights pursuant to Section 452.400, RSMo. 1978. A hearing on grandparents’ motion was held and a provision awarding them visitation on the 1st and 3rd weekend of every month from 10:00 A.M. Saturday to 5:00 P.M. Sunday was included within the dissolution decree. This court, citing Barry v. Barrale, 598 S.W.2d 574 (Mo.App.1980), held the visitation provision was proper. In Barry, the trial court granted temporary custody of the two children to grandparents once each month from 9:00 a.m. Saturday to 7:45 p.m. on Sundays. The Western District held the trial court could not grant grandparents “temporary custody” pursuant to Section 452.402 which only authorized grandparent visitation. However, the court stated that, “[w]e are inclined to the view that the trial court did not intend by use of the word ‘custody’ any broader rights than the visitation authorized by the statute” and it modified the order to provide for the same terms of visitation to the grandparents as had the order which referred to “temporary custody.” 598 S.W.2d at 581.

In a proceeding under Section 452.-400.3, grandparents must intervene, request visitation and present evidence so that the trial court may determine whether visitation by the grandparent would be in the child’s best interest or if it would endanger the child’s physical health or impair his emotional development. While there was no evidence that grandmother was an unfit custodian, there was scant evidence presented as to the suitability of grandmother or her home to support a visitation award. Moreover she was not a party and had made no request for visitation.

We have concluded that the trial court erred in allowing grandmother to exercise temporary custody of Jonathan. We reverse and remand this case to the trial court to allow grandmother 30 days in which to file a motion to intervene, pursuant to § 452.400.3. If she does so and, after holding a hearing at which the trial court shall determine if the visitation by the grandparent would be in the best interests of the child, the court may fashion an appropriate order of visitation. In all other respects the decree is affirmed.

CRIST and KAROHL, JJ., concur.

      . In April, 1984, husband was, in fact, transferred to Germany. In July, 1984, husband filed a motion to stay the proceedings in this court pending his return, pursuant to the Soldiers and Sailors Civil Relief Act, 50 U.S.C.A.App. § 521. This provides for a stay of proceedings in any court unless, "in the opinion of the court, the ability of the plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.” At the time the motion was filed, the record on appeal was complete and all briefs were filed. Husband’s presence for oral argument was unnecessary. We have concluded the ability of husband to prosecute this appeal, as would be true in most every appeal, was not materially affected by his military service. Briner v. Briner, 60 Cal.App.2d 473, 140 P.2d 995 (1943). Motion denied.

      . Our research has revealed the case of Neustaedter v. Neustaedter, 305 S.W.2d 40 (Mo.App.1957) decided before the enactment of the new Dissolution Act and the grandparent visitation statutes. In Neustaedter, the order was almost identical to the one under review here, as it awarded husband temporary custody of the minor child on alternate Sundays, “and when unable to exercise this privilege the paternal grandparents ... are to have the custody during the same period.” 305 S.W.2d at 42. This court held that an award of temporary custody to the grandparents could only be upheld when there was a showing of special or extraordinary circumstances, but found no such special or extraordinary circumstances. The court cited Solomon v. Solomon, 319 Ill.App. 618, 49 N.E.2d 807 (1943) in which paternal grandparents were granted temporary custody because the father of the child was in the army and was involuntarily removed from access to his child when assigned to active duty. Father stated the only contact he was able to have with the child was through his parents and expressly requested the temporary custody arrangement. The Illinois court held that it would be proper to allow grandparents temporary custody under those circumstances, but reversed and remanded the case to allow wife to present evidence that grandparents were unfit custodians. In the case at bar, we need not resolve whether the rule announced in Neustaedter is sound in light of the new Dissolution Act and the grandparent visitation statute. Even if Neustaedter is sound it is of no help to father because there was neither a request by husband nor grandmother for this custody arrangement and scant evidence of the suitability of either grandmother or her home.


text:
    Werner KUGLER and Gerda Kugler, et al., Respondents, v. John RYAN, Appellant.
    No. 48311.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 9, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Jerry J. Murphy, St. Louis, for appellant.
    Frank Susman, St. Louis, for respondents.
   CRANDALL, Judge.

Defendant, John Ryan, appeals from a judgment which permanently enjoins him from trespassing upon the plaintiffs’ premises, known as The Doctors Building located at 100 North Euclid Avenue in the City of St. Louis. The injunction also prohibits the defendant from conducting other activities while on the premises.

Defendant appeals alleging five points of error: (1) there were no facts in the record to warrant issuance of an injunction; (2) the injunction improperly restricts the defendant’s rights of free speech and of assembly; (3) the injunction is unconstitutionally vague and not capable of being enforced; (4) the court erred in returning the $100 bond to respondents and in failing to grant defendant attorneys’ fees after a temporary restraining order was dissolved; and (5) the petition did not state a claim upon which relief could be granted. Under the standard of review for a court-tried case as set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), we affirm.

Based upon stipulated evidence, being paragraphs one through seven of plaintiffs’ petition, the trial court found the defendant had committed a series of willful and knowing trespasses, and that such activity was not protected by the state or federal constitutions. Thus, the evidence, in its entirety, is as follows:

1. Plaintiffs WERNER KUGLER and GERDA KUGLER, doing business as West Pine Partnerships, are the owners and Lessor of The Doctors Building, 100 North Euclid Avenue, St. Louis, Missouri 63108, and are residents of the County of St. Louis, Missouri.
2. Defendant resides in the County of St. Louis, Missouri.
3. At all times herein mentioned, Plaintiffs were and continue to be the rightful owners of the real property and its premises identified as The Doctors Building, 100 North Euclid Avenue, within the City of St. Louis, Missouri. Said premises consist of leased suits of offices with various medical and other offices, lobbies, and hallways for use by patients, clients and other business invitees of Plaintiffs and their lessees. Said premises also include, as part of the common area, an outside parking lot for the convenience of the building owners, lessees and business invitees of the owners and of their tenants. All of the building tenants rent their premises from Plaintiffs under leases for various terms of years, with each lease requiring Plaintiffs to maintain the common area, including the parking lot of the building for the peaceful and quiet enjoyment of all tenants.
4. On or about November 12, 1983, November 19, 1983, November 26, 1983, December 3, 1983, and December 10, 1983, Defendant entered upon the premises of Plaintiffs, without invitation and not in the capacity of a business guest or invitee of either Plaintiffs or any of their lessees.
5. On each occasion, Defendant’s purpose for being on the premises was to converse with and distribute literature to persons who may be seeking abortions on the premises, for the purpose of dissuading such persons from obtaining abortions.
6. Defendant’s conduct was contrary to the expressed desires of Plaintiffs and Defendant refused to leave the premises on each occasion, although requested to do so by Plaintiffs’ agents.
7. On each occasion, Defendant’s removal was effected only through his arrest by the police.

Defendant first argues that there were no facts in the record to warrant issuance of an injunction. He claims plaintiffs failed to prove the threat of immediate and irreparable injury or damage to plaintiffs and claims plaintiffs have not shown that they have no adequate remedy at law.

While the threat of irreparable harm and lack of an adequate remedy at law must usually be specifically shown for injunctive relief to be granted, Smith v. Western Electric Co., 643 S.W.2d 10, 13 (Mo.App.1982), “[wjhere a trespass is recurring and would involve a multiplicity of suits an injunction will lie to restrain it.” Reproductive Health Services, Inc. v. Lee, 660 S.W.2d 330, 335 (Mo.App.1983). The court in Reproductive Health Services did not specifically discuss the defendant’s contention that no irreparable harm or inadequacy of remedy at law had been established but followed the rule quoted above.

We find that in the case of a repeated or continuous trespass there are two different theories regarding the requirement of irreparable harm. One theory is that irreparable harm need not be shown. This theory was adopted in Turner v. Stewart, 78 Mo. 480, 481-482 (1983), where the Missouri Supreme Court stated: “It is not necessary that the defendant should be insolvent or the wrong irreparable to sustain the right to equitable relief against trespasses.” The court noted that because of the need for a multiplicity of suits in the case of a repeated trespass, there was no adequate remedy at law. See also Bryant v. West, 219 S.W. 355 (Mo.1919), citing Turner. In Union Electric Land & Development Co. v. De Graffenreid, 229 Mo.App. 622, 624, 78 S.W.2d 571, 572 (1934), the court held: “Nor can it be questioned that the remedy by writ of injunction exists to prevent repeated trespasses on land, provided irreparable injury is caused thereby, or when an adequate remedy cannot be afforded by an action at law.” (Emphasis added.) A more recent decision held that even where the injury from each trespass is or would be trifling, the plaintiff can proceed by way of an injunction in the first instance. Cacioppo v. Southwestern Bell Telephone Co., 550 S.W.2d 919, 925 (Mo.App.1977). “The principle is also rather uniformly accepted that injunction is a proper remedy for an interference with a right of way whenever the injury complained of is irreparable, the interference is of a permanent and continuous nature, or the remedy at law by an action for damages will not afford adequate relief.” (Emphasis added). Winslow v. Sauerwein, 285 S.W.2d 21, 25 (Mo.App.1955).

It appears the Missouri cases adopt the theory that irreparable harm need not be shown in the case of a repeated or continuing trespass. Regardless of the theory, it is clear that an injunction is a proper remedy-

Defendant also claims plaintiff failed to show lack of an adequate remedy at law. When a trespass is repeated and would require a multiplicity of suits to redress, as was the case here, damages are not an adequate remedy. State ex rel. Taylor v. Anderson, et al., 362 Mo. 513, 242 S.W.2d 66, 72 (1951), citing Turner, 78 Mo. 480. See also 43 C.J.S. Injunctions § 29, at 824 (1978). The defendant entered upon plaintiffs’ premises five times, once a week for five weeks and was there against the wishes of the plaintiffs. Plaintiffs called the police to arrest the defendant each time. Plaintiffs had the right to seek an injunction to prevent future trespasses.

We also find that the court properly found that these trespasses would continue in the future. “When injunctive relief is sought to restrain future threatened action, the threatened action must be based on a real apprehension, and acts for which an injunction is sought must be such as are not only threatened, but will in all probability be committed.” May Department Stores Co. v. County of St. Louis, 607 S.W.2d 857, 870 (Mo.App.1980). Although there is no direct evidence of a threat of future trespasses, we find that the trial court could reasonably infer that they would occur given the frequency and pattern of defendant’s entry upon plaintiffs’ property.

Defendant’s next based on a free speech argument. U.S. ConstAmend. I; Mo. Const. Art. I, § 8. He claims his rights of free speech and assembly override the plaintiffs’ property rights. The evidence shows that the defendant was on the premises against the wishes of the plaintiffs. The evidence also shows that his “purpose for being on the premises was to converse with and distribute literature to persons who may be seeking abortions on the premises, for the purpose of dissuading such persons from obtaining abortions.” (Emphasis added.) There is no evidence in the record that the defendant ever attempted to effectuate his purpose. His purpose is therefore immaterial. Consequently, the only conduct before us now is the acts of trespass by the defendant. contention is

Assuming, arguendo, that the question of free speech is properly before this court, the first amendment does not give the defendant a right to trespass on private property. Hudgens v. National Labor Relations Board, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976); Lloyd Corporation v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). The case of Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) cited by the parties, cannot be used as support for defendant’s position. The court in Pruneyard based its holding that individuals had a free speech right which overrode the property right of the owner of a shopping center, on the fact that the California Supreme Court had found this right in its state constitution. There is no similar interpretation by the Missouri Supreme Court cited to us. See also State v. Levering, 661 S.W.2d 792, 793-794 n. 3 (Mo.App.1983). Defendant’s argument that because the message related to the premises, he has rights superior to the property owner, is refuted by Hudgens v. National Labor Relations Board, 424 U.S. 507, 96 S.Ct. 1029.

Defendant’s third point claims the injunction is unconstitutionally vague and not capable of being enforced. The injunction bars the defendant from “engaging in any activities which constitute coming upon or a trespass upon Plaintiffs’ premises,” and from “barricading, blockading, or interfering with ingress to, egress from or movement within” the premises. This language is clear. The injunction includes additional language barring defendant from other activities while on the premises. This is mere surplusage. If the defendant cannot go on the premises at all, then he cannot conduct any activities on the premises. Defendant’s third point is denied.

In his fourth point, defendant claims the court erred in allowing plaintiffs to recover their $100 cash bond and in refusing to grant defendant attorneys’ fees. This claim stems from the ruling by this court dissolving a temporary restraining order issued by the trial court. Defendant’s claim is without merit and the trial court’s denial of defendant’s motion on this point is affirmed pursuant to Rule 84.16(b).

Defendant’s fifth point is that the plaintiffs’ petition failed to state a claim because it did not allege immediate irreparable injury or any injury at all, or that there was no adequate remedy at law. Because we have found sufficient evidence to support the issuance of the injunction, and since the evidence is solely taken from plaintiffs’ petition, there is no need to discuss this point separately from defendant’s first point.

The judgment of the trial court is affirmed.

DOWD, P.J., and CRIST, J., concur.

      . Supporting the theory that irreparable harm need not be shown in the case of a continuing or repeated trespass are the following cases: Pliske v. Tuskis, 83 Ill.App.3d 89, 38 Ill.Dec. 479, 403 N.E.2d 710 (1980); Daughtrey v. C and D Sportswear Corp., 239 Ga. 482, 238 S.E.2d 37 (1977); Conrad v. Jones, 31 N.C.App. 75, 228 S.E.2d 618 (1976); Seventeen, Inc. v. Pilot Life Insurance Co., 215 Va. 74, 205 S.E.2d 648 (1974). See also 43A C.J.S. Injunctions § 60, at 54 (1978).
      Another theory in the case of a continuing or repeated trespass is that the requirement of irreparable harm is met by the fact a multiplicity of suits would be necessary. Critney v. Goodyear Tire and Rubber Co., 353 So.2d 341 (La.Ct.App.1977); Gregory v. Sanders, 635 P.2d 795 (Wyo.1981). See also 43A C.J.S. Injunctions § 74, at 78 (1978).

      . Defendant cites to Crenshaw v. Cook, 65 Mo.App. 64 (1896) for the proposition that the right to equitable relief on the ground of preventing a multiplicity of suits does not arise where repeated trespasses are committed by the same person. We do not find this rule stated in later cases which discuss injunctions to prevent a multiplicity of suits. Reproductive Health Services, Inc. v. Lee, 660 S.W.2d 330 (Mo.App.1983); St. Louis Smelting & Refining Co. v. Hoban, 357 Mo. 436, 209 S.W.2d 119 (1948); Schroeder v. Ziegelman, 443 S.W.2d 16 (Mo.App.1969).

      .Plaintiffs' petition does include an allegation that defendant’s past conduct shows a clear intention to repeat the trespasses, but this allegation was not part of the stipulated evidence. The legal file includes an affidavit from the defendant stating his intention to continue these trespasses; however, that affidavit was never entered into evidence.