author: GREENE, Judge.

text:
    Roger D. LAWSON, Francis E. Lawson, Peggy I. Lawson, and Beverly J. Lawson, Plaintiffs-Appellants, v. SCHUMACHER & BLUM CHEVROLET, INC., and General Motors Corporation, Defendants-Respondents.
    No. 13363.
    Missouri Court of Appeals, Southern District, Division One.
    March 19, 1985.

      Loren R. Honecker, Sherwood, Honecker & Bender, Springfield, Nolen W. Berry, Johnson & Berry, Neosho, for plaintiffs-appellants.
    David C. Humphreys, Joplin, for defendant-respondent Schumacher & Blum Chevrolet; Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, of counsel.
    Rodney E. Loomer, Meredith B. Turner, Turner, Reid, Duncan, Loomer & Patton, P.C., Springfield, for defendant-respondent General Motors Corporation; Patricia S. Harris, Judith A. Zakens, Detroit, Mich., of counsel.
   GREENE, Judge.

Plaintiffs, Roger Lawson, Beverly Lawson, Francis Lawson and Peggy Lawson sued defendants, Schumacher & Blum Chevrolet, Inc., and General Motors Corporation, for damages alleging personal injury to Roger, loss of services to his wife, Beverly, and property damage to plaintiffs’ tractor truck as a result of a wreck Roger had on November 15, 1977, in a 1976 Chevrolet tractor truck manufactured by General Motors, which plaintiffs had purchased on August 24, 1977, from Schumacher & Blum.

The case was submitted on the theory that a 1976 Chevrolet Titan 90 Royal Custom tractor truck unit was sold to plaintiffs in a defective condition which rendered it unreasonably dangerous for its anticipated use of pulling loaded trailers, and that such defect caused the accident in question. Roger’s testimony was that he was driving the truck approximately 45 miles per hour down a hill with a right-hand curve at the bottom on U.S. Highway 65 in Christian County, Missouri, when the steering apparatus went into “a complete lockup” causing him to lose control and, as a result, the truck ran off the left side of the highway and crashed. Lawson testified that he had previously noticed an undefined roughness in the steering from time to time.

Plaintiffs attempted to prove that metal fragments in the hydraulic valve mechanism of the power steering assist unit caused the valve to bind, resulting in failure of the power steering unit to respond to pressure applied by Roger to turn the steering wheel. Roger testified that as he approached the accident scene, he exerted as much pressure as he could on the steering wheel in an attempt to turn the truck to the right, but that the wheel broke loose from his hands and spun rapidly, causing the truck to lurch sharply, leave the road and finally crash into a rock bluff on the left side of the highway, seriously injuring him. The jury found for defendants, and the plaintiffs appeal.

On appeal, plaintiffs raise three eviden-tiary points as grounds for reversal. Two of these points require some understanding of the steering system involved and of the evidence offered by the parties.

The steering system in question was a mechanical system with a power assist. In the mechanical system, the steering wheel connects through the steering column to a “stub shaft” which engages a worm gear housed in the steering gear box. The latter mechanically transfers movement to a connected Pitman arm and, in turn, to the linkage which directs the wheels.

Working to aid the mechanical steering is a hydraulic power assist system. In this system, a pump driven by a belt from the vehicle’s engine causes fluid from a supply cannister to be circulated under pressure through a valve assembly. The valve has a small cylindrical spool or core which is positioned inside a closely fit valve body, also cylindrical in shape. The matching surfaces of these two parts contain longitudinal grooves which relate to one another in the operation of the valve. The stub shaft passes through the common center of these nested cylinders so that it is, in a sense, the common element of the mechanical and hydraulic systems.

The valve assembly is in a housing attached to the upper part of the steering gear box. Although the stub shaft and the worm gear are necessarily connected up as part of the mechanical system, there is a seal between the gear box and attached valve housing which prevents their separate fluid contents from mixing.

The valve components and stub shaft generally turn with the steering wheel and the mechanical steering system. However, the stub shaft also contains a torsion bar device, so that when a turning effort on the steering wheel meets substantial resistance from the road friction, the torsion bar will be twisted. Because of the way the stub shaft engages the valve parts, the twisting allows the valve spool to turn slightly inside the valve body in one direction or the other, depending on which way the operator is turning the steering wheel. Normally, fluid pumped into the valve simply circulates back to the pump because of certain holes found in the valve parts. However, the relative dislocation of the spool in the valve body under turning pressure results in the fluid being diverted by the alignment of the grooves mentioned earlier, so as to pass the fluid through one of two sets of small holes drilled through the valve body, again depending on the direction of the desired turn. These sets of holes or ports channel fluid through hoses going to either side of a double-acting cylinder which is mounted directly to the vehicle’s steering linkage. Thus, when the diversion of pressurized fluid causes a flow to one side of the cylinder, its forceful movement in response to that flow is transferred to the linkage, greatly assisting the manual steering.

Plaintiffs’ theory was that metal particles left from the manufacturing process clogged the holes in the valve assembly causing it to bind, which, in turn, caused the accident in question.

Shortly after the accident, the gear box and hydraulic valve apparatus were removed from the truck and delivered to Dr. Henry Hicks, an engineering professor at the University of Arkansas. His testimony, to the extent admitted, was presented by deposition. His inspection disclosed no particles in the valve assembly, but he did find some in the mechanical gear box. The latter discovery was not admitted in evidence because not relevant in view of plaintiffs’ theory of the case (particles jamming the valve), because the contents of the two assemblies do not communicate during operation.

Later, the power steering pump and hoses were removed from the wrecked truck and, along with the parts seen by Hicks, submitted to Dr. Donald Gibson, a professor of engineering at the University of Missouri. His opinions became the basis for the submission of plaintiffs’ case. In early 1981, Gibson disassembled the Titan 90’s pump and fluid cannister. He found some particles, metallic and some other types, in the recesses of the container, and discovered additional particles on a magnet which is factory-installed in the pump to catch and hold furrous material which may find its way into the hydraulic fluid. These particles were described as gray cast iron, consistent with castings used in the steering system. They were not “wear particles,” but apparently remained in the cylinder after the manufacturing process.

In answer to a hypothetical question, Gibson opined that the temporary lockup related by Lawson was caused when the valve spool was bound by a particle trapped between the flutes of the valve body and spool. It is important to understand that plaintiffs’ theory, as developed by Dr. Gibson, was not merely one of loss of power assist from the particle entrapment. Although Gibson recognized that the mechanical steering system would remain operable in the event of a general failure of the power assist system, it was his belief that a particle trapped, as he described, would also effectively block the mechanical ability to steer until the particle sheared. Gibson believed that fluid in the hydraulic assist cylinder fastened to the steering linkage was not free to drain back through the jammed valve. If he was correct in his belief, a hydraulic blockage would be created, thus making the assist cylinder an effective brake on mechanical movement of the linkage.

William Hubble, a mechanic, also testified for plaintiffs. He performed an experiment in which the Lawson steering gear and hydraulic valve assembly were installed on a rented truck similar to that of the Titan 90. The hydraulic pump was not included in the test so that fluid was pumped into the valve from the test vehicle’s own cannister and pump and through its own hoses.

Because a motion in limine was sustained as to any substances Hubble discovered after the test, these findings were included in the record as an offer of proof outside the presence of the jury. Hubble found some “metal shavings” in the gear box, and in the hydraulic valve housing and valve spool. These particles were indiscriminately mixed in a plastic bag as plaintiffs’ Exhibit 17. At the conclusion of the offer, the court again ruled Exhibit 17 inadmissible, stating there was no way to know whether the particles originated with the wrecked or the test vehicle.

The primary witness for the defense was Don Deford, an engineer at General Motors Institute of Engineering and Technology and had worked 36 years with the Saginaw Steering Gear Division of General Motors, mostly in the design of products, including steering components. Deford gave a thorough explanation and demonstration of how the mechanical steering and power assist work on trucks like the Titan 90. A major disagreement with plaintiffs’ hydraulic lockup theory became apparent as De-ford strongly emphasized that it was not possible for the valve spool to jam in the valve body so that fluid would be blocked in the assist cylinder without a way to flow out.

Deford also testified to a complete examination and testing of the steering components from the Lawson truck, and he reported finding nothing to suggest a failure. Part of this testing included installation of the pump, gear, hydraulic valve and cylinder on a similar truck which he road tested with no sign of difficulty.

Another experiment conducted by Deford was videotaped and shown to the jury over the objection of plaintiffs. A truck of the same type as the wrecked one was utilized, and a concoction of 750 mg. of gray iron and malleable iron chips and filings, hardened steel chips, slivers of Teflon, and core sand was placed in its hydraulic steering fluid along with some used oil containing scrapings from a “high mileage magnet.” The tape showed Deford putting the truck through some difficult turning, during which he noticed two or three “nibbles,” and through a road test with no difficulty. Apparently, at the time of trial, the truck with the contaminated fluid continued to be used by Saginaw Steering as a fleet vehicle, pulling trailers, with no further alterations to the steering system.

Deford also testified that the rotating valve type power steering units are designed to tolerate wear and other particles which can be expected to occur in the system even if not caught by the magnet installed near the pump. This was emphasized by showing that any particle caught between the valve spool and body would be subject, by principles of physical leverage, to a force more than 18 times that exerted on the steering wheel. In this respect, the system digests, by shearing, any particles which might be so situated. In Deford’s opinion, the steering mechanism had nothing to do with the wreck, because no particle small enough to get into the valve could cause it to jam, nor cause a hydraulic block.

Plaintiffs’ first point relied on is that the court erred in excluding evidence of the various particles found by Hicks in the gear box, and those found by mechanic Hubble (Exhibit 17), after his examination and testing using uncleaned components from another truck. They urge that this evidence is relevant to the issue of the existence of at least one particle in the hydraulic valve at the time of the mishap.

Evidence in the form of an offered fact is relevant if it tends to prove or disprove a fact in issue, or corroborates evidence which is relevant and which bears on the principal issue. Arie v. Intertherm, Inc., 648 S.W.2d 142, 154[16] (Mo.App.1983). Relevancy is that relationship between the offered fact and fact in issue to such a degree that the truth of the offered fact makes probable the existence of the fact in issue. McIlroy v. Hamilton, 539 S.W.2d 669, 676[10] (Mo.App.1976). The determination is often subjective. For that reason, a trial court has substantial discretion in ruling on the admissibility of evidence. Karashin v. Haggard Hauling & Rigging, Inc., 653 S.W.2d 203, 205[3] (Mo. banc 1983); Gant v. Hanks, 614 S.W.2d 740, 744[3] (Mo.App.1981). Thus, the admission or exclusion of questionable evidence is committed to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Moreland v. State Farm Fire and Casualty Co., 662 S.W.2d 556, 565[16, 17] (Mo.App.1983); Lawson v. Cooper, 475 S.W.2d 442, 447 (Mo.App.1972).

These principles are fully applicable to the case before us, and we find no abuse of discretion in excluding evidence of the particles found by Hicks and Hubble. What we have in each case is a secondary relationship, at best, to a fact in issue, so that the probability of the latter was not necessarily enhanced by the proffered evidence. Moreland, supra, 662 S.W.2d at 565; City of Cape Girardeau v. Robertson, 615 S.W.2d 526, 531 (Mo.App.1981). We fail to see how the presence of particles in a separate component lends logical impetus to the conclusion plaintiffs asked the jury to reach. They argue that because the gear box was subject generally to the same manufacturing conditions and processes, the particles found show a tendency which renders particles in the valve more probable. There is some circumstantial appeal to this argument, but we are not prepared to say the trial court abused the considerable discretion it had in the matter. This is especially so in view of the fact that there was never a doubt that particles might exist in the system, and that such were even to be anticipated.

The particles found by Hubble in the valve parts, after a hookup to the pump and related parts of another truck, have no discernible probative significance other than to show it possible for particles to get there. Again, that was not really denied; the issues were whether such particles could jam the valve and create a lockup of the steering. The jury could infer from the testimony of Gibson that some particles were in the system at the time of the accident and did have the capability of reaching the valve area. The wholly speculative matter of the Hubble particles was collateral to the real issues, not relevant and possessed of a tendency to mislead. See Jones v. Terminal R.R. Ass’n. of St. Louis, 242 S.W.2d 473, 477 (Mo.1951). Plaintiffs’ first point is denied.

Plaintiffs next allege that the trial court erred in allowing in evidence that portion of the accident report prepared by the investigating officer, Trooper Sam Kaunley, called as a witness by General Motors, which stated “speed too fast for conditions.”

Kaunley had worked the accident in question well over five years prior to the time of trial. He recalled that the accident occurred at a place called the “S-Curve,” and in fact in the “first curve in the S.” Several accidents have occurred in this area, which is at the end of a long hill sloping downward in the direction the truck was going. The trooper testified, without objection, that his report did not reflect any debris prior to the point of impact with a rock wall, nor was there any indication of skidmarks, which features would have been noted if present.

When counsel for General Motors asked if there was any evidence to indicate that Roger Lawson took evasive action, plaintiffs interposed an objection. Counsel for General Motors then attempted to lay a foundation for use of the trooper’s written report as a business record. However, before the court could rule, plaintiffs’ counsel insisted on some voir dire questions, which he concluded by volunteering that the report could be admitted as representing the “past recollection recorded” of the trooper. The court promptly announced the report admitted, and direct examination briefly resumed.

Upon further objection by plaintiffs’ counsel, based on the fact the witness then appeared to be testifying from refreshed recollection, in which event “he can’t testify from that document,” the court made it clear it thought the business records exemption covered the matter. Counsel immediately protested: “Wait a minute, if we are talking about business records, I want to object to it on hearsay, that it has hearsay and conclusions in it.” In the ensuing colloquy, it became clear that the real object of plaintiffs’ concern was a notation in the report: “speed too fast for the conditions.” Although counsel made various references to hearsay, the more thoroughly explained ground of objection was that a purported expert conclusion was involved, and the trooper had not been qualified as an expert in “accident reconstruction.” The absence of certain physical evidence at the scene, it was stated, does not establish speed. It was also complained that the conclusion “invades the province of the jury.”

Following the overruling of these objections, General Motors’ counsel proceeded to once again question the witness as to the lack, at the scene, of any physical signs, such as scuff marks, signs of rubber or other debris, which would have been consistent with Roger Lawson’s testimony about how his wheels turned sharply right and the tractor violently continued off the left of the road into the rock wall. Plaintiffs’ last overruled objection “for the purpose of the record,” just before this testimony, was to “continue to object to this witness giving testimony which calls for an expertise which he has not been qualified to give.” The judge pointedly responded that he thought the witness was “qualified for accident investigation.” The trooper was then allowed to say again that, according to his report, there was no evidence of scuff marks, rubber residue or debris prior to the point of impact.

The report was then passed to the jury. Thereafter, plaintiffs’ counsel cross-examined the trooper at some length about his investigation. At the conclusion of this examination, “the box marked speed” was mentioned for the first time in the presence of the jury as counsel for the plaintiffs elicited the acknowledgement that the trooper did not recall why he had included the speed notation.

On appeal, plaintiffs claim the trooper’s report should not have been admitted in toto, and that the notation about speed and conditions should have been excluded. The specific ground now assigned is that the officer was not competent to reach “such a conclusion with respect to a subject exclusively within the providence (sic) of the jury.” The point as framed, and the arguments made in support, leaves some uncertainty as to whether the complaint is that the trooper was not shown to be qualified to have made the conclusory remark, Cebula v. Benoit, 652 S.W.2d 304, 309 (Mo.App.1983), or that the subject matter is not one appropriate for the special qualification of an expert. Hamre v. Conger, 357 Mo. 497, 507, 209 S.W.2d. 242, 249 (1948). In any event, plaintiffs recognize they have a preservation problem, but note that they did begin to object before the report was shown to the jury.

We can hardly ignore the express consent by plaintiffs’ attorney, without reservation, that the document could be admitted in evidence, a tender which the court promptly obliged by admitting the report. It is only reasonable that having expressly consented to an item being admitted in evidence, there is no standing to complain later about the matter, in whole or in part. Where a documentary exhibit is admitted, then generally the whole of its contents is in evidence. Ellis v. Farmer, 287 S.W.2d 840, 844[5] (Mo.1956). Thus, where a party concedes the admission of such an exhibit without specific objection or reservation as to a part not then read to the jury, a later objection will be unavailing. See Skelton v. General Candy Co., 539 S.W.2d 605, 613-614 (Mo.App.1976); State v. Martin, 616 S.W.2d 80, 81 (Mo.App.1981). This is especially true where the contents have been previously available to counsel so that he should have been sufficiently informed of possibly objectionable material. See State v. Foster, 501 S.W.2d 33, 36 (Mo.1973).

It should also be emphasized that neither speed, nor any aspect of Roger Lawson’s conduct, was at issue in the case. Contributory negligence, as historically understood, is not a defense in a strict liability case. Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362, 365 (Mo.1969). However, it is true that conduct of the user may become a superseding cause of damages in a products liability action. Such conduct may be grounded on misuse of the product and use while knowing of a defect. Prosser and Keeton on The Law of Torts § 102 (W. Keeton 5th ed. 1984). The latter, known in Missouri law as contributory fault, is an affirmative defense and was not submitted in this case. Means v. Sears, Roebuck & Co., 550 S.W.2d 780, 787 n. 6 (Mo. banc 1977); MAI 32.23 [1978 Revision]. The former was adopted into Missouri law as an affirmative part of a plaintiff’s case. Keener, supra, 445 S.W.2d at 365-366. Thus the verdict directors correctly submitted the proposition that “the truck was used in a manner reasonably anticipated.” MAI 25.04 [1978 Revision].

Roger Lawson’s testimony was sufficient to submit that he was using the truck in a manner reasonably to be anticipated. No converse of this was offered. It is clear that the trooper’s testimony was offered to show that the physical facts were inconsistent with Roger Lawson’s account of how the steering locked then broke loose in a manner to violently pitch the cab and force the truck across the road to the point of impact. It was plaintiffs’ own counsel who emphasized the speed notation. In doing so, it was made quite clear to the jury that the trooper had no actual knowledge of the speed, that he did not know upon what basis he made the entry and that no speed citation was issued. Thus, the speed opinion concerned a matter not really at issue and the jury understood the officer could offer no explanation for the conclusion. Admission of the trooper’s report was of little consequence, and was not prejudicial, even if the trial court could be said to have erred. See Le Grand v. U-Drive-It Co., 247 S.W.2d 706, 714-715 (Mo.1952). Plaintiffs’ second point is denied.

Plaintiffs’ third point of alleged error challenges the videotaped experiment shown to the jury during the testimony of Donald Deford. Plaintiffs’ objections to the taped experiment were that it did not duplicate the conditions of the wrecked vehicle in that the latter had 17,000 miles on it at the time of the accident while the test truck had 655,000 miles of use, that the Lawson truck was pulling a loaded trailer whereas the test tractor pulled no trailer at all, and that the injected contamination was not shown to be chemically equivalent to what had been found on the magnet of the wrecked truck. The court held that these differences went to the weight of the evidence, and that the tape was probative on the issue of whether particles in the system is a dangerous defect.

The standards for the admission of experimental evidence were stated in the context of strict liability litigation in Blevins v. Cushman Motors, 551 S.W.2d 602, 610 (Mo. banc 1977):

The law is well settled that experimental evidence is admissible when the experiment was made under conditions substantially similar in essential particulars to the conditions which prevailed at the time of the occurrence in suit, and that the conditions need not be identical. Faught v. Washam, 329 S.W.2d 588, 598 (Mo.1959); Wilcox v. St. Louis-Southwestern Railroad Co., 418 S.W.2d 15 (Mo.1967); Klaesener v. Schnucks Markets, Inc., 498 S.W.2d 555, 557 (Mo.1973). The similarities must be in those circumstances or conditions as might supposedly affect the result in question; and the degree of similarity or difference should be judged in the light of the fundamental principle that any fact should be admissible which logically tends to aid the trier in determination of the issue. Ward v. Penn Mutual Life Insurance Co., 352 S.W.2d 413, 425 (Mo.App.1961). In determining this question of sufficient similarity, a substantial measure of discretion must be accorded to the trial judge. Klaesener v. Schnucks Markets, Inc., supra; Lietz v. Snyder Manufacturing Co., 475 S.W.2d 105, 107 (Mo.1972); Lynch v. Railway Mail Association, 375 S.W.2d 216 (Mo.App.1964); Ward v. Penn Mutual Life Insurance Co., supra.

See also Fowler v. S-H-S Motor Sales Corp., 560 S.W.2d 350, 356 (Mo.App.1977).

The purpose of the experiment went to the heart of the case, and was designed to show that particles circulating in the power steering system would not produce the disastrous condition plaintiffs’ theory supposed. As such, it is difficult to imagine a more appropriate test. Plaintiffs’ claimed violation of the rule of substantial similarity has no merit.

Certainly, the proponent of experimental evidence has the burden of presenting a foundation showing that the test, in material aspects, has the requisite similarity to the conditions or occurrences at issue in the suit. Barnes v. General Motors Corp., 547 F.2d 275, 277 (5th Cir.1977). However, substantial similarity is a very flexible concept depending on what conditions it is important to control. McCormick on Evidence § 202, at 601 (E. Cleary 3rd ed. 1984). Variances in conditions which are more detrimental to the proponent of the test than those which existed in the original will not bar admission. Blevins, supra, 551 S.W.2d at 609-610. Variances in critical conditions which are unduly favorable to the proponent will require a test to be disallowed. See Cohen v. Archibald Plumbing & Heating Co., 555 S.W.2d 676, 680 (Mo.App.1977).

In a hearing outside the presence of the jury, before the videotape was admitted for showing to the jury, it was established that the test truck was a Titan 90 with the same steering mechanism as the Lawson truck. It was also stated that the concoction introduced into the system, most of which was placed into a hose so it would be certain to circulate through the valve area, contained all the types of particles which might typically be expected to be present. It specifically included both machining chips and filings of gray iron like plaintiffs’ expert Gibson testified he found on the magnet of the Lawson vehicle. Deford estimated there was more than 30 times the amount of foreign material placed in the system than appeared ori the magnet of the Lawson truck. He acknowledged there would be wear in certain parts of the system of the test truck, such as where the valve assembly rotates in its housing. Although he did not examine those parts, he did not feel that such wear would affect the ability of the valve to handle the particles. He further noted that the effect of a loaded trailer would be to place more weight on the front wheels, but that the function of the valve mechanism would not be affected. The tape depicted the experiment in a straightforward manner and showed the truck being operated in a variety of situations, including highway driving at a speed of 45 miles per hour. The proponent of the experiment, General Motors, met its foundational burden. There was clearly no abuse of discretion in admitting the taped experiment. The issues raised by plaintiffs are matters of weight, not admissibility.

Plaintiffs had a fair chance to present their theory as to an unreasonably dangerous defect, and the jury was able to fairly weigh the conflicting expert opinions. Nothing in the points raised by plaintiffs constitutes reversible error. The judgment of the trial court is affirmed.

TITUS, P.J., and FLANIGAN, J., concur.


source: Caselaw Access Project

author: SHANGLER, Judge.

license: Public Domain

text:
    Kris JURGENS, Appellant, v. RAM LEATHER CARE, Respondent.
    No. WD 35121.
    Missouri Court of Appeals, Western District.
    March 19, 1985.

      Donald L. Cain, Kansas City, for appellant.
    Timothy W. Monsees, Morris, Larson, King, Stamper & Bold, Kansas City, for respondent.
    Before PRITCHARD, P.J., and SHAN-GLER and BERREY, JJ.
   SHANGLER, Judge.

The action commenced as a pro se petition in the small claims court by Jurgens against former employer Ram Leather Care for $500 unpaid wages and vacation pay. The defendant Ram Leather responded with a counterclaim in excess of the small claims court jurisdiction [§ 478.225, RSMo Supp.1984] and was certified by that tribunal to the circuit court [Rule 145.06]. The presiding judge of the circuit court assigned the case to Associate Circuit Judge Stitt, in lieu of a circuit judge. The plaintiff then engaged counsel and amended her petition to enlarge the claim, and applied for change of judge. Judge Stitt ordered the cause transferred to Judge Romano, another associate circuit judge. Thereafter, the formal order of Judge Romano transferred the cause to Judge Ian-none, yet another associate circuit judge, “[b]y agreement of Judges.” Judge Ian-none tried the case, and entered judgment for the defendant on the petition. The defendant thereupon dismissed the counterclaim.

The plaintiff Jurgens contends on appeal that the judgment was rendered by an associate circuit judge other than the associate circuit judge duly assigned to adjudicate the case, and hence is void. The contention amounts to an assertion of want of jurisdiction by Associate Circuit Judge Ian-none over the subject matter of the suit.

The jurisdiction of an associate circuit judge is confined by statute to the limited class of cases enumerated in § 478.-225, subsections 2 and 3,,RSMo Supp.1984, except that an associate circuit judge may hear and determine such other cases or classes of cases as are assigned by an order of the presiding judge of the circuit court [§ 478.240.2], or by circuit court rule [§ 478.245.1(1)], or by order of the supreme court [Mo. Const. Art. V, § 6]; City of Kansas City v. Rule, 673 S.W.2d 21, 23[1,2] (Mo. banc 1984). The subject matter confided to an associate circuit judge for adjudication by § 478.225 includes [subdivision (1) of subsection 2] “all civil actions and proceedings for the recovery of money ... when the sum demanded, exclusive of interest and costs, does not exceed five thousand dollars.” The counterclaim of defendant Jurgens was for $15,500 [for employment duty mismanagement], and hence beyond the conferred subject matter jurisdiction of an associate circuit judge. In such a case, the associate circuit judge must certify the case to the presiding judge of the circuit court for assignment to a circuit judge or to an associate circuit judge for hearing. §§ 517.240.2 and 517.-520.2. Those directions appertain also to a petition before the associate circuit judge in the small claims court. Rule 145.06.

The procedure was duly followed, and the order of the presiding judge of the circuit court assigned the case to Associate Judge Stitt. The plaintiff Jurgens thereafter applied for change of judge, and Associate Judge Stitt simply transferred the cause by his order to Associate Circuit Judge Romano. The clear direction of the statute [§ 478.255.1], however, is:

When the presiding judge assigns an associate circuit judge to sit as circuit judge in a case, and thereafter, the associate circuit judge is disqualified from hearing the case, the case shall be returned to the presiding judge for reassignment to another judge of the circuit court including the presiding judge himself should that be necessary in the discretion of the presiding judge, [emphasis added]

Thus, the peremptory terms of the statute empower an associate circuit judge who sits as a circuit judge in a case by assignment and is thereafter disqualified to return the case to the presiding judge — and nothing more. The disqualification to hear the case exhausts the power to adjudicate as a circuit judge as to the subject matter of that case or class of cases and terminates the enhanced jurisdiction under the assignment.

The defendant Ram Leather concedes that, in the absence of an order of reassignment by the presiding judge of the circuit court, the transfer of the cause by the order simpliciter of Associate Circuit Judge Stitt was without effect to invest Associate Circuit Judge Romano [and hence Associate Circuit Judge Iannone] with jurisdiction over the subject matter of the cause. The defendant contends the provision of § 478.255.1, that an associate circuit judge under assignment by order of the presiding judge of the circuit court must return the case for reassignment upon disqualification notwithstanding, another provision of statute enabled the judgment rendered by Associate Circuit Judge Iannone: subsection 6 of § 478.225:

Associate circuit judges in addition to the cases enumerated in this section also may hear, and determine within the county of their residence any other civil case if a written consent to such hearing and determination executed by all of the parties to the case, either personally or by counsel, is filed of record in the case. Such consent may be as to all proceedings with respect to the case or it may be limited to particular pretrial matters or other proceedings in the case, [emphasis added]

The defendant Ram Leather acknowledges that “the technical requirements of consent were not rigidly adhered to” — that is: a written consent to such hearing and determination executed by all the parties to the case, either personally or by counsel, filed of record in the case. The defendant contends, nevertheless, that the letter by counsel for plaintiff Jurgens on May 4, 1983, to counsel for defendant Ram Leather that as a consequence of the application for change of judge lodged by the defendant the case was set for trial on May 19, 1983, before Associate Circuit Judge Ian-none, coupled with the actual trial of the case to that court, amounted to a “consent to such hearing and determination” satisfies the conditions of the § 478.225.6 for valid associate circuit judge original jurisdiction over the cause.

The proviso of subsection 6 that a written consent to such hearing and determination executed by all the parties to the case, filed of record in the case, imposes not a mere “technical requirement,” but a condition precedent to the power of an associate circuit court to adjudicate cases otherwise reserved to the plenary jurisdiction of the circuit court. The condition that the written consent to the associate circuit court exercise of jurisdiction be made a part of the record in the case serves the same function of an order of assignment by the presiding judge of the circuit court [§ 478.240.2], or by circuit court rule [§ 478.245.1(1)], or by order of the supreme court [Art. V, § 6]: to authenticate the regularity of a proceeding and judgment otherwise beyond the authority of that court of limited jurisdiction to render. City of Kansas City v. Rule, 673 S.W.2d 21, 23[1, 2] (Mo. banc 1984); State ex rel. Lambert v. Flynn, 154 S.W.2d 52, 57[8, 9] (Mo. banc 1941); and see Rule 74.32.

The revised judicial article of the Missouri Constitution [adopted August 3, 1976] and the legislation enacted to implement that provision [Chapters 478 and 517 among them] describe a public policy to enlarge the role of the associate circuit court beyond that exercised by the predecessor magistrate court in order to expedite litigation, but within a scheme of ordered jurisdiction. City of Kansas City v. Rule, 673 S.W.2d 21, 24[4] (Mo. banc 1984). That scheme [Mo. Const. Art. V, § 17] effective January 1, 1979, confers on an associate circuit judge the jurisdiction exercised by the predecessor magistrate and probate courts and such additional cases or classes of cases as may be provided by law. That scheme is implemented by the provision of law [§ 478.225.2 and 3] which enables an associate circuit court to determine the enumerated classes of cases— among them, civil actions for the recovery of money where the demand does not exceed $5,000 [§ 478.225.2(1) ]. That scheme is implemented also by the provision of law [§ 478.225.4] that an associate circuit judge may determine such other classes of cases as are assigned by the presiding judge, a rule of court, or by an order of the supreme court or by the provision of law [§ 478.225.6] any other civil case by written consent of the litigants made of record in the proceeding.

Thus, an associate circuit judge has neither constitutional nor statutory authority to adjudicate a civil action for the recovery of money in excess of $5,000 unless under assignment from the presiding judge of the circuit court, a court rule, or the supreme court — or under a written consent of the litigants made a record in the case. The record discloses neither assignment [by a court or rule] nor the written consent of the litigants to submit the dispute to Associate Circuit Judge Iannone for trial and judgment. The “agreement of judges” [as the unilateral order of transfer from Associate Circuit Judge Romano to Associate Circuit Judge Iannone describes the transfer], absent the written agreement of the parties in the case, does not satisfy § 478.225.6, nor confer a power to adjudicate a subject matter foreclosed to such a court by law. That judicial order, however benign the motive, can only be ipse dixit and pretension of authority, since a court may adjudicate a subject matter only as conferred by law. State Tax Commission v. Administrative Hearing Commission, 641 S.W.2d 69, 72[l-5] (Mo. banc 1982). The letter from one counsel to the other to notify of the trial date was not a consent to trial [within the sense of § 478.225.6], but a usual gesture and courtesy. To accede to the postulate of Ram Leather, that the submission of the parties to suit without objection — that is, that the mere exercise by a court of the adjudicatory function— ipso facto validates any judgment of an associate circuit court, is to obliterate distinction of rank between trial judges and to refuse efficacy to the scheme of ordered jurisdiction established by constitution and enacted by law.

The defense of want of subject matter jurisdiction may not be waived. Rule 55.27(g)(3). The power of an associate circuit judge to adjudicate a claim for money in excess of $5,000 depended on a special statutory condition which lacked — the written consent on record — an element indis-pensible to the exercise of the judicial power of an associate circuit judge to adjudicate the subject matter of the claim. State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52, 57[8, 9] (banc 1941). It is a deficiency the parties cannot confer by consent, agreement [except in the manner prescribed by law — § 478.225.6], nor by submission to trial, nor by estoppel. Sisk v. Molinaro, 376 S.W.2d 175, 177[1] (Mo. 1964). It is a deficiency so fundamental as may be raised at any stage of the proceedings. United Cemeteries Co. v. Strother, 342 Mo. 1155, 119 S.W.2d 762, 765[l-5] (1938).

The judgment of Associate Circuit Judge Iannone is set aside and the cause is remanded to the Presiding Judge of the Sixteenth Judicial Circuit for reassignment to a circuit judge or an associate circuit judge under the provisions of § 478.240.2.

All concur.


author: SMITH, Judge. STEWART, Judge,

text:
    Jack ABSHIRE and Lorene Abshire, Appellants, v. NORDSON CORPORATION, Respondent.
    No. 47561.
    Missouri Court of Appeals, Eastern District, En Banc.
    Jan. 22, 1985.
    Order Feb. 19, 1985.
    Application to Transfer Denied April 30, 1985.
    James Joseph Hennelly, St. Louis, for appellants.
    Joseph H. Mueller, St. Louis, for respondent.
   SMITH, Judge.

Plaintiffs appeal from a jury verdict against them in a products liability case. Plaintiff-husband sustained serious injuries as the result of a fire at his place of employment. Wife sought damages for loss of consortium. Plaintiffs brought suit against defendant Nordson Corporation, the supplier of electrostatic paint spraying equipment, and Don V. Davis Company, the supplier of toluol. The fire was caused by the interaction of the equipment and the chemical. Both defendants were charged with supplying an unreasonably dangerous product without warnings of the danger. The jury returned its verdict in favor of both defendants. Following appeal plaintiffs settled with the Davis Company, so only the appeal from the jury verdict in favor of Nordson is before us.

The sole attack on appeal is directed to defendant’s converse instructions to each plaintiffs verdict-directing instruction. The verdict-director (MAI 25.05 modified by 19.01) hypothesized the sale of the product by defendant, that it was unreasonably dangerous when used as anticipated, that defendant failed to give adequate warning of the danger, that the product was used in the anticipated manner and:

“... the sale of the electrostatic paint spraying system without an adequate warning directly caused or directly contributed to cause damage to plaintiff, Jack Abshire.”

Nordson utilized a true converse instruction (MAI 33.01, 33.04(4)) which stated:

“Your verdict must be for defendant Nordson Corporation on the claim of plaintiff Jack Abshire, unless you believe said defendant did not give an adequate warning of the danger and as a direct result of such failure, plaintiff Abshire sustained damage.”

Plaintiffs contend that the utilization of the “direct result” language served to mislead the jury into ignoring the “directly contributed” language of the verdict-director and allowed them to return a verdict for Nordson if they believed Nordson’s conduct was not the sole cause of the plaintiff’s injuries, even if such conduct contributed to cause those injuries. Their argument basically emanates from MAI 19.01 indicating that in joint tortfeasor cases the “direct result” language in the verdict-director “might be misleading.” Because of that a plaintiff, at his option, may use the verdict-director utilized by plaintiffs here.

The author has expressed his opinion concerning whether the utilization of the “direct result” converse is error in a dissenting opinion in Brickner v. Normandy Osteopathic Hospital Inc., 687 S.W.2d 910 (No. 47217) handed down contemporaneously. Both cases having been heard by the same expanded panel on rehearing no useful purpose would be served by restating that opinion. We will assume therefore that the converse as used was erroneous.

We find no prejudice to plaintiffs from the use of that instruction. As pointed out in Brickner the instructions in this case included a jury instruction on apportionment of fault and an apportionment of fault verdict-director. These items along with the verdict-directors made it clear that recovery could be had against both defendants. See Sall v. Ellfeldt, 662 S.W.2d 517 (Mo.App.1983) [11]. That destroyed any implication that the converse instructions required a sole cause finding.

Judgment affirmed.

DOWD, PUDLOWSKI, SIMON, GAERT-NER and KAROHL, JJ., concur.

REINHARD, C.J., dissents.

STEWART, J., dissents in separate opinion.

CRIST, J., dissents & concurs with dissenting opinion.

STEWART, Judge,

dissenting.

I respectfully dissent primarily because of my concern that we are steadily destroying the concept of simple mandatory MAI instructions.

We seem to have forgotten the warning taken from the report of the special committee and adopted by the Supreme Court of Missouri in a number of early cases. “If counsel are permitted to ‘improve’ the approved instructions, even within the confines of specific precedents, the value of these instructions will be lost.” Motsinger v. Queen City Casket Co., 408 S.W.2d 857, 860 (Mo.1966); Hunter v. Norton, 412 S.W.2d 163, 166 (Mo.1967); Brown v. St. Louis Public Service Company, 421 S.W.2d 255, 258 (Mo. banc 1967).

Judge Finch in Brown at p. 258 warned against substituting synonyms for the precise language of the pattern instruction. He stated that if variations are made, “but held to be non-prejudicial on the basis the words are synonyms and convey the same meaning, the number of potential variations in all MAI instructions would be limited only by the number of synonyms available.”

With these principles in mind we consider the issue presented in this case. The notes on use to MAI 33.03 state that the examples given of converse instructions “are not approved for any particular litigation since the proper language for a converse instruction in any particular litigation depends upon the verdict director being conversed.” In other words a proper verdict director becomes the mandatory pattern instruction for the converse.

It has been held that Committee Comments are directive not mandatory. Sail v. Ellfeldt, 662 S.W.2d 517, 524 (Mo.App. 1983). Notes on use are commands which must be followed. Weinbauer v. Berberich, 610 S.W.2d 674, 680 (Mo.App.1980); Vest v. City National Bank and Trust Company, 470 S.W.2d 518, 520 (Mo.1971). With respect to converse instructions it would appear that the notes on use adopted the committee comment and should be followed.

The verdict directing instruction gives all the elements necessary for consideration of the jury. The converse instruction like the human appendix is an unnecessary appendage to the concept of simplified instructions and like its human counterpart it can infect the system. The converse instruction is however well entrenched and will survive. Nevertheless if it is used it should faithfully follow the language of the verdict director.

In the present case the verdict directing instruction required the jury to find that the failure of defendant Nordson to give adequate warning “directly caused or directly contributed to cause damage” to plaintiff. Defendant’s converse instruction omitted the words “directly contributed.” It read:

Your verdict must be for defendant Nordson Corporation on the claim of plaintiff Jack Abshire, unless you believe said defendant did not give an adequate warning of the danger and as a direct result of such failure, plaintiff Abshire sustained damage.

Plaintiff here followed the suggestion given in MAI 19.01 because as stated there the phrase “direct result” might be misleading when the verdict directing instruction directs a verdict against one of two or more joint tortfeasors.

The two alternative paragraphs provided in 19.01 are MAI approved paragraphs for use at plaintiff’s option where there are two or more joint tortfeasors. The Supreme Court has held the failure of plaintiff to use the 19.01 paragraphs is not error because the “direct result” language places a greater burden upon plaintiff. Joly v. Wippler, 449 S.W.2d 565, 569 (Mo.1970).

It should follow that when a plaintiff gives an approved MAI instruction intended to prevent an instruction from misleading a jury, the converse must follow the verdict director. When the converse instruction omits the phrase “or directly contributed to” the instruction places a greater burden upon plaintiff and is prejudicially erroneous. Joly v. Wippler, supra.

Although the case of Snyder v. Chicago Rock Island & Pacific R.R. Co., 521 S.W.2d 161 (Mo.App.1973) is a FELA case I believe that it is apropos here. In that case contributory negligence could not defeat plaintiff's claim. Plaintiff was required only to prove that defendant was negligent to some degree. He submitted a proper verdict director that required a finding that the specific negligence of defendant “directly resulted in whole or in part” in damage to plaintiff.

The converse instruction that was given required the jury to find that plaintiff sustained damage “as a direct result of” defendant’s negligence.

The court held that the converse instruction was prejudicially erroneous because it imposed upon plaintiff a legal theory of causation different and more burdensome than the theory submitted in the verdict director.

In the case of multiple defendants plaintiff does not have to prove that the defendant against whom the verdict director is submitted directly caused the injury in whole but only that defendant’s negligence contributed to cause damage to plaintiff.

The rule that an instruction is not erroneous if when it is read with other instructions correctly declare the law, is not applicable when the instruction is in conflict with the other instructions given in conjunction with it as in this case. John O’Brien Boiler Works Co. v. Sievert, et al., 256 S.W. 555, 557 (Mo.App.1923); West v. St. Louis Public Service Co., 236 S.W.2d 308, 313 (Mo.1951).

As indicated above we are cognizant of the trend away from remand for instructional error. Fowler v. Park Corporation, 673 S.W.2d 749 (Mo. banc 1984). The purpose of MAI was to simplify submission to the jury. The simplest and easiest way to avoid retrial for instructional error is to follow MAI. It is improvisation that brings instructional issues to the level of appellate review and requires retrials.

The fact that three cases including the case at bar have come before the Missouri Court of Appeals in a short period of time on practically the same issue is ample proof of the danger of the present trend. Sall v. Ellfeldt, 662 S.W.2d 517 (Mo.App.1983); Brickner v. Normandy Osteopathic Hospital, Inc., 687 S.W.2d 910. It is for the reasons set out herein that I have concurred in the result only in Brickner.

The dangers forseen by Judge Finch in Brown v. Public Service Company, supra, have descended upon us.

I would reverse and remand for a new trial on this issue.1

ORDER

The en banc opinion issued in this cause on January 22,1985 supersedes the original opinion of September 4, 1984.

      . The converse was identical as to each plaintiff so we will discuss the issue only in regard to the plaintiff-husband.


author: CRIST, Judge.

text:
    Pamela GIBSON, Respondent, v. Voleta HUMMEL and the Southland Corporation, Appellants.
    No. 48216.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 22, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 1985.
    Application to Transfer Denied April 30, 1985.

      Shepherd, Sandberg & Phoenix, Kenneth W. Bean, Stephen J. Potter, St. Louis, for appellants.
    Arthur G. Muegler, Jr., St. Louis, for respondent.
   CRIST, Judge.

The Southland Corporation (employer) and Voleta Hummel (supervisor) appeal from a judgment awarded Pamela Gibson (employee) on her claims for intentional infliction of emotional distress and violation of the “service letter” statute. The jury awarded employee $125,000.00 actual damages jointly against both defendants, and punitive damages of $400,000.00 against employer, and $30,000.00 against supervisor, on employee’s claim for intentional infliction of emotional distress, and actual damages of $5,000.00 against employer for the service letter violation. We reverse.

Employer and supervisor challenge submissibility. Employee was an employee at will, and as such could be fired for any or no reason. Amaan v. City of Eureka, 615 S.W.2d 414, 415 (Mo. banc 1981); Ising v. Barnes Hospital, 674 S.W.2d 623, 625-26 (Mo.App.1984). Employer and supervisor claim that employee only proved wrongful discharge, recovery for which is barred. Employee contends the conduct of defendants, in light of the attendant circumstances, was extreme and outrageous, and intentionally caused emotional distress, under the theory of § 46, Restatement (2d) of Torts (1965). Pretsky v. Southwestern Bell Tel. Co., 396 S.W.2d 566 (Mo. banc 1965). Assuming, without deciding, a case for wrongful discharge may ripen into the tort of outrage, our inquiry is directed to the question of whether employee made a submissible case. We review the evidence in a light most favorable to the verdicts. Duke v. Gulf & Western Mfg. Co., 660 S.W.2d 404, 409 (Mo.App. 1983).

Employer, who owns the registered trade mark “7-Eleven,” is the world’s largest operator and franchisor of convenience stores. Employee was a full-time clerk in one of these stores, located at the Colonnade Shopping Center in St. Louis County, in supervisor’s area. Employee claims the conduct of supervisor and employer, occurring from April 24 to May 4, 1982, when her employment ended, was extreme and outrageous, and intentionally and recklessly caused her severe emotional distress.

The Colonnade Store had experienced severe inventory shortages for several months. Employer was aware inventory shortages, which regularly occurred at its stores, was due to several causes, including errors in accounting, computing, or auditing (counting) inventory, errors or theft by vendors, customer theft, manager errors or negligence, and employee errors, grazing (in-store consumption of items without payment) and theft. A procedure was established to control inventory shortages. It was explained in this procedure that employee theft and grazing accounted for 83% of the total of inventory shortages. Employer’s zone manager and district manager, witnesses called by employee, could not substantiate that figure, but did testify, in their experience, employee theft was the major inventory control problem, accounting for more than 50% of shortages. They believed the 83% figure was an industry— wide figure, which they followed as true. The brunt of the inventory control procedure fell on the store managers, who were taught not to trust the employees. Spy techniques were used by the managers to discover the causes of shortages, to preserve their own jobs. Polygraphs were available, but the managers were told that good management was the real answer to their problems.

Supervisor had serious inventory control problems in her stores. Her job performance, rated about seven weeks before employee lost her job, was unsatisfactory, in part because inventory losses in her stores were 1.9% of sales as opposed to a generally allowable 1% of sales. This was also a factor in a demotion of supervisor’s immediate superior which occurred after April of 1982.

The Colonnade Store had experienced several months of inventory losses over the allowable limit before April of 1982. An audit on April 15, covering the first 15 days of the month, showed a shortage of $882.00. A second audit, performed eight days later because of the large shortage in the first audit, showed an additional shortage of over $1,200.00. These audits did not reveal the cause of the shortages, or reveal what was missing. After checking the paper work, and discovering no cause of the shortages, supervisor and her immediate superior decided to polygraph the three full-time employees of the store. They had no factual basis to suspect employee of complicity in the shortages.

Employee had worked for employer for over a year. She had received a promotion, several merit raises, and an award from employer. She was an employee at will. On duty when supervisor came into the store right after the audit, employee was told “heads were going to roll.” The audit was unacceptable and something was going to be done about it. Employee was indecisive about whether the store manager or anyone else in the store heard this conversation. In a second, later conversation, supervisor again complained about the audit, and stated she believed an employee in the store was stealing, and the full-time employees would have to take polygraph tests or be fired. Again, employee was indecisive as to whether anyone overheard this conversation.

Supervisor selected the polygrapher, and drove the three employees to their location. Employee did not remember signing the consent and release form admitted into evidence, but stated she did not voluntarily consent to take the test. Preliminary questions about employee’s drug or alcohol use, bill-paying practices, and whether she was self supporting were highly offensive to her. The small polygraph room made her claustrophobic. The polygraph itself looked like an “octopus” that would shock or electrocute her. She went in and out of consciousness during the test, and was involuntarily tapping her foot and breathing deeply. When asked to stop these movements, she could not do so.

Polygrapher reported the test was inconclusive with signs of deception, and employee had confessed to taking approximately $100.00 worth of merchandise during her employment. Supervisor confronted employee with this report and gave her the choice of quitting, or being fired and having the police called. Employee denied the charges, and pleaded for more time, but this was not granted. She then “quit.”

Employee then consulted a psychiatrist, who diagnosed her as having a major mental disorder arising from the termination and surrounding circumstances. She was alleged to have been susceptible to stress, and described by fellow employees as “nervous,” “high strung,” “up-tight,” “very hyper” and particularly sensitive to work related criticism. It was alleged that defendant knew of this; however, supervisor testified employee did not seem abnormally nervous.

The Supreme Court in Pretsky essentially adopted § 46, Restatement (2d) of Torts (1965), providing;

(1)One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and if bodily harm to the other results from it, for such bodily harm.

There are three elements of proof:

(1) defendant’s conduct must be extreme and outrageous;
(2) defendant acts in an intentional or reckless manner; and
(8) by reason of said acts, plaintiff is caused to suffer severe emotional distress for which severe bodily harm results.

LaBrier v. Anheuser Ford, Inc., 612 S.W.2d 790, 793 (Mo.App.1981); but see Bass v. Nooney Co., 646 S.W.2d 765 (Mo. banc 1983) (modifying the bodily harm requirement).

For a plaintiff to recover, a defendant’s conduct must have been extreme and outrageous. Comment d to § 46, Restatement (2d) of Torts (1965), delineates the type of conduct which is required:

d. Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

Conduct meeting this standard was found in LaBrier, where defendant’s employees appeared at plaintiff’s (wife of former employee) residence, and using a loud and threatening voice harassed and humiliated plaintiff by questioning her as to her husband’s whereabouts and threatened to have him arrested, in light of defendant’s knowledge of plaintiff’s recent hospitalization for emotional problems. LaBrier, 612 S.W.2d at 793-94. It has also been held that it can not be said as a matter of law that showing a pornographic movie to a female, claiming it is an educational film, while uttering sexual obscenities to the (non-employee) female, does not constitute outrageous conduct. Young v. Stensrude, 664 S.W.2d 263, 265 (Mo.App.1984).

Conduct which has been held not to meet the standard includes; gaining access to a home by use of a false statement and causing anxiety by that statement (Pretsky, 396 S.W.2d at 569-70); conveying the information that plaintiff would not be re-employed for the next school year to plaintiff while she was at her doctor’s office under sedation, where it is not alleged that defendant knew of that condition, [Williams v. School District of Springfield R-12, 447 S.W.2d 256, 265-67 [Mo.1969)]; transferring a graphic artist to a job as a television camera operator and assigning him an undesirable work schedule [Frye v. CBS Inc., 671 S.W.2d 316, 319 (Mo.App.1984) ]; insurance company’s attempt to settle a wrongful death claim while claimants were in mourning from that death, [Luster v. Columbia Mut. Ins. Co., 624 S.W.2d 890, 892-93 (Mo.App.1981) ]; threatening to cut telephone service unless plaintiff pay for cutting an underground line, an action threatened in good faith but erroneous belief of its legality, (United Tel. Co. of Mo. v. Horn, 610 S.W.2d 701, 704 (Mo.App. 1980)]; firing an employee who had been informed he would be privately reprimanded for a mistake on the job [Boyd v. Kansas City Area Transp. Authority, 610 S.W.2d 414, 415 (Mo.App.1980) ]; actions to collect a bill which were a series of letters from the creditor, three phone calls from the creditor, three letters from a collection agency, and three phone calls from that agency, only one of which could be considered abusive [Smith v. Standard Oil Div. of Amoco Oil Co., 567 S.W.2d 412, 416 (Mo.App.1978) ]; and a series of phone calls to debtor’s employer and a visit to that employer, where employer was momentarily mistaken for debtor, but no one present believed employer was delinquent in payments [Leonard v. Pioneer Finance Company, 568 S.W.2d 937, 941-43 (Mo.App. 1978) ].

Employee urges the conduct of employer and supervisor in requiring employee to take the polygraph and involuntarily terminating her employment amounted to outrageous conduct. However, there is insufficient evidence to show this conduct went “beyond all possible bounds of decency” or was “atrocious, and utterly intolerable in a civilized community,” as is required for recovery. Frye, 671 S.W.2d at 319. Employee, who was an employee at will, could be fired for no reason at all, and could be required to submit to a polygraph examination as a condition of continued employment. Ising, 674 S.W.2d at 626.

Requiring a polygraph was not so unreasonable as to be actionable. There is no dispute over the seriousness of the inventory shortages. Employee established more than one-half of inventory shortages were due to employee theft. It was not unreasonable for employer to take steps to halt the shortages. Employee also does not dispute that polygrapher reported to supervisor and employer employee’s alleged confession of stealing $100.00 worth of merchandise. While employer’s and supervisor’s conduct would have been sufficient for wrongful discharge, not actionable in Missouri, such conduct fell short of being so extreme and outrageous as to be actionable.

There is also insufficient evidence to support a finding employer and supervisor acted intentionally or recklessly to cause emotional distress. Employee’s evidence concerning the discussions about the shortages, taking place in the store between employee and supervisor, did not show any intentional or reckless misbehavior on the part of supervisor, especially in light of the lack of evidence of any intent to injure, or that they were overheard by any identifiable third party. Even if it were established, any recklessness involved here would not help in showing reckless or intentional conduct in requiring the polygraph or in firing employee. In short there was insufficient evidence to elevate this case from one of wrongful discharge to one of outrage. See Ledl v. Quik Pik Food Stores, Inc., 133 Mich.App. 583, 349 N.W.2d 529, 532-33 (1984); Todd v. South Carolina Farm Bureau Mut. Inc., 321 S.E.2d 602 (S.C.App.1984); Food Fair, Inc. v. Anderson, 382 So.2d 150 (Fla.App.1980); contra. Smithson v. Nordstrom, Inc., 63 Or .App. 423, 664 P.2d 1119 (1983) (prolonged interrogation without evidence of wrongdoing, culminated by a coerced confession of theft and a termination of the employee); Bodewig v. K-Mart Inc., 54 Or. App. 480, 635 P.2d 657 (1981) (clerk strip searched for twenty dollars); M.B.M. Co., Inc. v. Counce, 596 S.W.2d 681 (Ark.1980) [conduct (employee forced to take polygraph, part of last check was withheld to cover part of a cash shortage, and employer lied to unemployment compensation authority) held actionable when it occurred after employee-at-will was terminated.]

Employer also attacks the recovery on employee’s claim of a violation of the “Service Letter” statute, § 290.140 RSMo 1978, on the ground there was insufficient evidence of damages to support a recovery. Actual damages in a service letter case are proven by showing (1) plaintiff was refused or hindered in obtaining employment, (2) due to the absence or inadequacy of a service letter, (3) the position plaintiff was refused or was hindered in obtaining was actually open, and (4) the rate of pay of that position. Herberholt v. dePaul Com. Health Center, 625 S.W.2d 617, 622-23 (Mo. banc 1981). Employee did not meet the elements of proof. She testified she applied for, but did not get, three jobs. All of these jobs were applied for before she requested a service letter from employer. There is no showing the contents of or absence of this service letter affected her chances for any of these jobs, that any of them were open, or their rate of pay. Therefore, the judgment for damages on the service letter claim must be reversed as well.

The judgment for intentional infliction of emotional distress in the amount of $125,-000.00 actual damages against both defendants jointly, punitive damages of $400,-000.00 against employer and punitive damages of $30,000.00 against supervisor is reversed. The judgment against employer for violation of the Missouri Service Letter Statute in the amount of $5,000.00 is reversed.

DOWD, P.J., and CRANDALL, J., concur.

      . We do not decide the issue of submissibility because the majority have sustained the judgment of the trial court in favor of defendant.


author: STEPHAN, Judge.

text:
    James Bruce TIDROW, Petitioner-Appellant, v. DIRECTOR, MISSOURI STATE DIVISION OF FAMILY SERVICES, Respondent-Respondent.
    No. 48250.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 22, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26,1985.
    Application to Transfer Denied April 30, 1985.

      Ramon J. Morganstem, Michael J. Mc-Kitriek, Barbara Blee Maille, Clayton, for petitioner-appellant.
    Paul T. Keller, Public Counsel, Jefferson City, for respondent-respondent.
   STEPHAN, Judge.

James Bruce Tidrow appeals from a judgment of the Circuit Court of St. Louis County affirming a determination by the Director of the Division of Family Services that he is not entitled to medical assistance to pay the costs of residential care as provided by § 208.151, RSMo. The Director’s rejection of appellant’s application for assistance is based on the Director’s finding that “claimant has resources in excess of the maximum allowed.” As developed at a hearing conducted by a hearing officer appointed by the Director, appellant is the primary beneficiary of a spendthrift, discretionary trust created by his father’s will. The assets of the trust, consisting mainly of a residence and proceeds of life insurance policies, were valued at approximately $175,000. Imputing the value of the trust assets to appellant, the Director denied benefits to appellant on the authority of § 208.010-2 (4) which prohibits such payments to anyone who owns cash or securities in the amount of $1000 or more and (5) which prohibits payments to anyone who is the record or beneficial owner of any kind of property of a value in excess of $20,500. For reasons hereinafter set forth, we believe that it was error to impute the value of the trust assets to the appellant. Accordingly, we reverse and remand to the Circuit Court to remand to the Director for a redetermination of the issues, as provided by § 208.100, RSMo Cum.Supp.1981 and § 208.110, RSMo 1978.

Appellant, known as “Bruce” Tidrow, was 34 years of age at the time of the hearing. He has been severely mentally retarded since birth, has an IQ of 29 and a mental age of five years, one month. Appellant was cared for at home until appellant’s mother became critically ill. In early May of 1980, appellant’s father, Earl Ti-drow, contacted the Family Service Center for emergency respite day care for Bruce. Mr. Tidrow was referred to the Missouri Department of Mental Health Regional Center, where he applied for and received financial assistance. At that time the cost of day care for five days a week was $559.36 per month. The Department of Mental Health also paid for adult developmental classes at the St. Louis Association for Retarded Citizens.

Appellant’s mother died in July, 1980. Several weeks later Earl Tidrow applied for future residential services for his son Bruce, which at that time cost $1234.00 per month. At the time of the hearing, the cost of such care had increased to approximately $2,200 per month. Mr. Tidrow was aware that funds were generally available for financial assistance of residential-type programs and that Bruce would have to be institutionalized for as long as he lived. A week after this initial application, Earl Ti-drow executed his last will and testament, leaving the bulk of his estate in a discretionary, spendthrift trust for the benefit of his son, Bruce, and secondarily for the benefit of his other son, Kim, with the remainder to go to Kim free of trust upon Bruce’s death.

Earl Tidrow was hospitalized in June, 1981, and died on July 3, 1981. Bruce was considered for immediate placement in the residential program and, after a two-week trial period, was accepted into the program. Medical assistance was applied for on Bruce’s behalf on August 1, 1981. An attorney in the office of the general counsel of the Department of Social Services gave an opinion that the assets of the trust were “available” to Bruce, and the application was denied by the Division of Family Services on October 6, 1981.

Appellant contends that the trial court erred in affirming the decision of the Missouri State Division of Family Services because appellant’s interest in the trust is not an “available resource,” and thus the decision of the Director of the Missouri State Division of Family Services was arbitrary and capricious, not supported by substantial and competent evidence, or authorized by law.

The trust here in question is a “true spendthrift trust” as described in McNeal v. Bonnel, 412 S.W.2d 167,170 (Mo.1967) in that it expressly provides that no beneficiary may alienate his interest therein and that no creditor of a beneficiary may reach such interest in satisfaction of any claim against a beneficiary. In the words of the instrument:

Neither the principal nor the income of the trust estate created herein shall be liable for the debts of any beneficiary hereof, nor shall the same be subject to seizure by any creditor of any beneficiary under any writ or proceeding at law or in equity, and no beneficiary shall have any power to sell, assign, transfer, encumber or in any other manner to anticipate or dispose of his or her interest in the trust estate or the income produced thereby.

Similarly, the trust is wholly discretionary in that it authorizes, but does not require, the trustee to pay from interest or principal any amount the trustee deems necessary, in its discretion, to provide for Bruce’s “reasonable comfort” during his life. The trustee is also authorized to pay to Bruce’s younger brother, Kim, such amounts as may be warranted by his needs or by a “medical or family emergency,” subject to the trustee’s determination that Bruce’s welfare would not be jeopardized. Upon Bruce’s death, the trustee is directed to pay the trust estate, free of trust, to Kim, if living, or to his descendants. The trust does not require the payment of any set amount of principal or interest at any time to any beneficiary; any interest not paid out is to be turned into principal.

The respondent Director candidly concedes in his brief that, if Earl Tidrow were living, his net worth would not disqualify his adult retarded son from receiving the medical assistance benefits here in issue. This is consistent with § 208.010-8 which provides:

In determining eligibility and the amount of benefits to be granted under federally aided programs, the income and resources of a relative living in the home shall be taken into account only to the extent the income, resources, support and maintenance are available for the support of the claimant unless the relative is the claimant’s spouse or minor child living in the home, or is the parent of a minor child for whom benefits are claimed.

Against such factual and statutory backdrop we pursue our basic task of determining whether the Director’s conclusion that the assets of the trust are “available” to Bruce is legally tenable. See Pummill v. Missouri Division of Family Services, 674 S.W.2d 647, 648 (Mo.App. 1984). Our determination turns on whether such conclusion is reasonably consistent with the settlor’s intent in creating the trust. Almost a century ago, our Supreme Court said:

In construing wills, the familiar rule prevails that they are to be construed as a whole; liberally construed; construed with reference to the intention of the testator; and unless that intention, if carried out, will violate some positive rule of law, or subvert some rule of public policy, such intention must be allowed to control, and be effectuated by the courts. And, in construing wills which create trusts, the same liberality of construction as to such trusts prevails.

Partridge v. Cavender, 96 Mo. 452, 9 S.W. 785, 786 (1888). The concept that the intention of the settlor is the key to the construction of a trust and that the intention will be effectuated unless contrary to law or public policy continues to prevail. See Webb v. St. Louis County National Bank, 551 S.W.2d 869, 875 (Mo.App.1977); First National Bank of Kansas City v. Waldron, 406 S.W.2d 56, 58 (Mo.1966); and First National Bank of Kansas City v. Hyde, 363 S.W.2d 647, 652 (Mo.1962), where the court said, “In determining the meaning of a trust provision, the paramount rule of construction is that the sett-lor’s intent is controlling and such intention must be ascertained primarily from the trust instrument as a whole.”

From the instrument involved here, it is abundantly clear that Bruce’s father intended that payments from the trust to or for Bruce were to supplement, rather than supplant, the benefits to which Bruce would otherwise be entitled. As indicated above, the Director has conceded that, if Earl Tidrow were alive, he would not have to deplete all of his assets before Bruce could qualify for benefits from the State. Thus, the conclusion is compelling that the father intended his trust estate, the existence of which was triggered by his death, to do for Bruce what his father did for him in life: to supplement the benefits received from the State. Earl Tidrow was obviously aware that Bruce’s age and good physical health augured a long life expectancy for him, that Bruce will need custodial care for as long as he lives, and that the cost of such care was increasing. In view of such facts, it would not comport with common sense to have created a gift of total support which would be wholly dissipated in a matter of a few years. On the contrary, the repeated references in the trust to Bruce’s “lifetime” and “for so long as [Bruce] may live,” as well as the provision that, upon Bruce’s death, the remaining assets would be paid to Kim or his descendants argue forcefully for the conclusion that settlor’s intent was that the trust would continue throughout Bruce’s life and that it would be supplementary to support received from the State. A contrary conclusion would totally frustrate the settlor’s intent that his other son Kim would, at least ultimately, derive benefits from the settlor’s estate. It would also invite anyone, finding himself in the position of Earl Tidrow in the future, to make no testamentary provision for a handicapped child in the hope that the largesse of others bene-fitted by his will would provide “extras” for his disabled offspring.

In justification of his denial of benefits to Bruce, the Director cites § 208.010-2(5) which states that benefits are not payable to one who, “owns or possesses property of any kind or character, or has an interest in property, of which he is the record or beneficial owner, the value of such property, as determined by the division of family services, less encumbrances of record, exceeds twenty thousand five hundred dollars.” The Director argues that, as a beneficiary of his father’s trust, Bruce is a beneficial owner of the trust assets and is ineligible for benefits by reason of the value of the assets.

The statute need not, and for reasons hereinafter stated, should not be so narrowly interpreted. Section 208.010-1 opens with the following provision:

In determining the eligibility of a claimant for public assistance under this law, it shall be the duty of the division of family services to consider and take into account all facts and circumstances surrounding the claimant, including his living conditions, earning capacity, income and resources, from whatever source received ... (Emphasis added.)

Although the trust authorizes, and indeed contemplates, the bestowal of benefits upon Bruce, it does not mandate payments. Thus, at any given time, Bruce may or may not have in his possession anything “received” from the trust and nothing had been received at the time this application for benefits was made. As discussed above, the trust is spendthrift and payments from interest and principal are matters within the discretion of the trustee. Granted that the total refusal of the trustee to make any payments from interest or principal might, under some circumstances, constitute an abuse of the trustee’s discretion as conflicting with the settlor’s intent; similarly the Director’s determination that the total assets of the trust are presently available to Bruce is in conflict with the clear intent that the trust would last for the duration of Bruce’s life and beyond.

Title 42, § 1396a (17)(B) provides that a State plan for medical assistance, such as that set out in § 208.010, RSMo, et seq., must “provide for taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant ...” (Emphasis added.) Any effort by a State to impose a more restrictive standard of eligibility is invalid under the Supremacy Clause of the United States Constitution, unless “clearly authorized by the language of the [Social Security] Act or its legislative history.” Lewis v. Shulimson, 400 F.Supp. 807, 809-810 (U.S.D.C., E.D.Mo., 1975), citing Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971); and Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972).

Part of the “legislative history” of the Act, and particularly subsection (17), was cited by the Supreme Court of the United States in Schweiker v. Gray Panthers, 453 U.S. 34, 45,101 S.Ct. 2633, 2641, 69 L.Ed.2d 460, 471 (1981) when it quoted the leader of “the Senate’s conference delegation,” summarizing the effect of subsection (17), “No income can be imputed to an individual unless actually available ...” Ill Cong. Rec. 18350 (1965). Furthermore, with respect to the term “available resources,” the “standards prescribed by the Secretary” include the following, “resources are considered available both when actually available and when the applicant or recipient has a legal interest in a liquidated sum and has the legal ability to make such sum available for support and maintenance.” 45 C.F.R. § 233.20 (a)(3)(D).

In view of the fact that the Secretary’s definition of “available” is entitled not only to deference, but to “legislative effect” in matters of this nature, Schweiker, supra, 453 U.S. at 44,101 S.Ct. at 2640, 69 L.Ed.2d at 470, we conclude that the Director’s determination that the total assets of the trust are immediately available to Bruce is unauthorized by law. We need not, at this juncture, plumb the difference between the term “legal interest” in the regulation and the apparently broader scope of the term “beneficial owner” in § 208.010-2(5), or the effect of that difference on the validity of the statute under the Supremacy Clause. We do hold, however, that Bruce does not, at this time; have “the legal ability to make [the total assets of the trust] available for support and maintenance.” This, for the reason that no abuse of the trustee’s discretion to withhold payment has been shown on this record. As discussed above, it is our view that the settlor’s intent was to provide lifetime supplementary support and assistance for Bruce and that intent cannot be fulfilled by making the income and principal of the trust immediately and completely available for the full cost of his support. Accord, Zeoli v. Commissioner of Social Services, 179 Conn. 83, 425 A.2d 553 (1979). See also, Oddo v. Blum, 83 A.D.2d 868, 442 N.Y.S.2d 23 (1981).

Finally, we distinguish the instant case from Estate of Janet Wallace v. Director, Missouri State Division of Family Services, 628 S.W.2d 388 (Mo.App.1982) upon which respondent places great reliance. In that case, it was held that the beneficiary of a trust was properly denied medical assistance under Chapter 208, RSMo, because the assets of the trust approximated $37,-000 at the time of the Director’s hearing. The decisive difference between that case and the one at hand is that the claimant was not only the beneficiary of the trust but the grantor and co-trustee. The trustee was required to pay the income from the trust to the claimant, as well as any amount of principal which the claimant requested in writing. Furthermore, the trust specifically authorized the trustee to withhold any benefits to the extent that they were available from public funds; and, on appeal, the claimant’s principal argument was that she “had no right to support from the trust to the extent that benefits were available from the Division.” Id. at 389.

Disposition of the Wallace case was consistent with the version of § 208.010-2(l)(a) in effect at the time. The cited provision barred payment of any benefits to any person who “within five years preceeding the date of the investigation” transferred anything of value to another “without receiving fair and valuable consideration.” Other provisions made the disqualification coextensive with the value of the thing transferred. In short, the public policy of this State as articulated by the cited statute and the Wallace case is that a person may not, by voluntary divestiture of his assets, deplete his resources in order to qualify for public assistance.

Our disposition of this case does no violence to that public policy. We merely re-assert the rule of First National Bank of Kansas City v. Hyde, supra, that “the paramount rule of construction is that the settlor’s intent is controlling,” and where, as here, that intent is determinable, the court will see to its effectuation. To affirm outright the determination of the Director that the assets of the trust are immediately available to the appellant would authorize the rapid and total dissipation of the trust estate. Such disposition would be wholly contrary to the clear intent of the settlor that, barring unforeseen events requiring unusually large expenditures, the trust would provide supplementary benefits for Bruce throughout his lifetime and, thereafter, the trust assets would be paid to Bruce’s younger brother.

Accordingly, we reverse and remand to the Circuit Court with directions to remand the matter to the Director for reconsideration of his decision, as provided by § 208.-100-5, RSMo 1983. Such reconsideration may take into account what part, if any, of the cost of services required by appellant should be paid by him, giving full regard to the terms of the trust and the intent of the settlor, as discussed herein. With respect to the cost of ordinary medical and custodial care required by appellant, such reconsideration by the Director shall be based upon a threshhold determination of what portion of the interest income of the trust estate is “actually available” to the appellant: that is to say, not more than the maximum amount which can be paid from income without subjecting fulfillment of the settlor’s intent to unreasonable risk. An opportunity to be heard on this issue should be extended by the Director to the corporate trustee as well as to Kim Tidrow as co-trustee and secondary beneficiary.

SIMON, P.J., and STEWART, J., concur.

      . Except as otherwise noted, references herein to §§ 208.151 and 208.010 are to legislation which became effective Feb. 16, 1982, the date of the Director’s hearing.

      . St. Louis County Bank and Bruce’s younger brother, Kim Tidrow, are co-trustees. Kim, however, may not participate in any decision to pay out interest or principal to himself. For the sake of convenience, the co-trustees will be referred to as "trustee”.

      . The language of the trust is:
      During the lifetime of my said son, [Bruce], the Trustee shall use and apply so much of the net income and principal of the trust estate as the Trustee may, in the Trustee’s discretion, deem necessary for the health, maintenance and support in reasonable comfort of such child, any net income not so used shall be accumulated and, at least annually, added to income. (Emphasis added.)
      The foregoing may be contrasted with the following language in a testamentary trust construed in Winkel v. Streicher, 365 Mo. 1170, 295 S.W.2d 56, 59 (banc 1956) to mean that all income from the corpus was to be paid for the support of the beneficiary, but that payments out of principal were at the discretion of the trustee:
      The trustee shall pay the net income and any part of the corpus of the estate, as he in his sole discretion deems necessary, to my niece, Lillie Streicher or her guardian or to any person or corporation caring for her, for the support and maintenance of my said niece.
      The court stated in Winkel that, in order to hold that payment of the interest was discretionary with the trustee, "it is necessary to transpose the words ‘any part of so that the sentence would read: ‘The trustee shall pay any part of the net income and the corpus of the estate etc.’ ” So it is in the instant case; payments from both interest and principal are matters within the discretion of the trustee.

      .Exclusion from the determination of any consideration of the resources of a parent of a claimant who is over the age of twenty-one may be looked on as a statutory exception to the common law rule recognized in the State of Missouri that a parent’s obligation of support does not terminate when his child reaches twenty-one "where the adult child is unmarried, un-emancipated and insolvent and physically or mentally incapacitated from supporting himself.” Lieberman v. Lieberman, 517 S.W.2d 478, 480 (Mo.App.1974). Such exception is necessitated by the prohibition against State established standards in federally aided programs which “take into account the financial responsibility of any individual for any applicant or recipient of assistance under the plan unless such applicant or recipient is such individual’s spouse or such individual’s child who is under age 21 ...” 42 USCA § 1396a(17)(D).