author: CRIST, Judge.

text:
    Peter GRGIC, Appellant, v. Carl COCHRAN and Barbara Cochran, Respondents.
    Nos. 48452, 48477.
    Missouri Court of Appeals, Eastern District.
    Feb. 13, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.

      Prudence L. Fink, Union, for appellant.
    John Robert O’Connor, I.I. Lamke, Kimme, Lamke & O’Connor, Washington, for respondents.
   CRIST, Judge.

Plaintiff (subcontractor) appeals the dismissal of his equitable mechanic’s lien action for failure to timely substitute the statutory trustees of original contractor, a corporation which had forfeited its charter, and the failure to grant a default judgment against those statutory trustees. Defendants Carl and Barbara Cochran (owners) cross-appeal the dismissal of their counterclaim sounding in tort and contract, alleging poor workmanship and conversion of building materials. We affirm the dismissal of Counts I and II of owners’ counterclaim, and reverse the balance of the judgment.

Owners contracted with WECO Enterprises, Inc. (original contractor) to build a house. Part of the work was subcontracted to subcontractor. Original contractor did not pay for the work, and, on December 28, 1978, subcontractor filed his mechanic’s lien statement.

The corporate charter of original contractor was forfeited by the Secretary of State on January 1, 1979. Neither owners nor subcontractor had any knowledge of this forfeiture until 1981. Upon the forfeiture, W. Wallace Warren and Steven C. Evrard, the members of the last board of directors of the corporation, became the statutory trustees of the corporation. Warren was also the last registered agent of the corporation.

On April 23, 1979, subcontractor filed this equitable mechanic’s lien action against owners, original contractor as a corporation, the construction financer, and four other mechanic’s lien claimants. Corporate capacity of contractor was denied in owners’ answer on lack of information and belief.

The return of service on the first summons issued against original contractor shows service on Mrs. Wallace Warren, contractor’s office manager, at the Warren residence, on May 22,1979. A second summons against original contractor was returned “non-est” on May 29, 1979, showing contractor had moved. A third service was made on W. Wallace Warren, as contractor’s registered agent, on June 17, 1980. After discovery of the forfeiture of the corporate charter, subcontractor, on August 1, 1981, asked for and received permission to join the statutory trustees. He amended his petition on August 21, 1981, naming the trustees as defendants, served Warren personally on September 9, 1981, and served the other trustee, who could not be found and personally served, by publication. At all times, contractor, either as a corporation or as the statutory trustees, was in default.

The issue is whether subcontractor commenced his action against all defendants within six months after filing his lien statement, as required by § 429.170, RSMo 1978. Suit was filed on April 23,1979, well within six months of filing the lien statement on December 28,1978. All necessary parties must be joined within that period. The question is whether the amendment of the petition joining the trustees relates back to the date of filing under Rule 55.-33(c). Home Bldg. Corp. v. Ventura, 568 S.W.2d 769, 771-72 (Mo. banc 1978).

Rule 55.33(c) contains three requirements for an amendment to a pleading to relate back to the original date of filing. First, the claim must arise from the conduct, transaction or occurrence that is the subject of original petition. Here, subcontractor raises precisely the same claim against trustees as he did against original contractor.

The second and third requirements are likewise met. If the party to be added, within the period of time provided for the commencement of the action, (1) has received notice of the action, so that he will not be prejudiced in maintaining a defense, and (2) knew or should have known he would have been a defendant but for a mistake, then the amendment will relate back. Rule 55.33(c). Here, at least one trustee (Warren) had the requisite notice, as he had been served with process in his capacity as agent for the corporation. As a director, Warren should have known the facts surrounding the forfeiture of the charter. And, as original contractor, either as a corporation or through its statutory trustees, always was in default, no prejudice to it can be shown. There is also no prejudice to owners, nor a showing in the record of either subcontractor’s failure to prosecute the action with due diligence or owners’ attempt for a quick resolution of the action. The lien action should not have been dismissed. Home Bldg. Corp., 568 S.W.2d at 772.

Subcontractor also properly complains of the trial court’s failure to grant a default judgment against the trustees as well as against original contractor, WECO. The default judgment against WECO is not challenged. The trustees are equally in default, and judgment should have been granted against them as well.

Owners’ cross appeal asserts error in the dismissal of their counterclaim. Count I alleged subcontractor had a duty in tort to owners to perform labor and services in a workmanlike manner. Count II alleged owners were third party beneficiaries of a contract between original contractor and subcontractor, suing for damages for the breach thereof. Both counts alleged various defects in the building as damages resulting from the breach of duty or contract. Count III alleged tortious conversion of lumber and nails. The trial court dismissed all three counts for want of privity-

The dismissal of counts I and II was proper whether viewed in contract or in tort. Subcontractor had no contract with owners and there was no privity of contract between them. Rackers and Baclesse, Inc v. Kinstler, 497 S.W.2d 549, 553 (Mo.App.1973). Owners, therefor, could not sue subcontractor directly for breach of contract, which was the real basis of these counts. Owners’ remedy is to sue the original contactor or his trustees on their contract. Kahn v. Prahl, 414 S.W.2d 269, 277-78[2, 3] (Mo.1967). There is no duty owed to owners by subcontractor in the absence of privity of contract. See H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 986 (1928).

Owners’ theory of tort liability also must fail. The liability of a contractor to an owner for defective construction is based either on breach of contract, see e.g. Kahn, supra; or warranty, not tort. Crowder v. Vandendeale, 564 S.W.2d 879, 881-85 (Mo. banc 1978). Clark v. Landelco, Inc., 657 S.W.2d 634, 635-36 (Mo.App.1983).

The dismissal of Count III was erroneous. That count, alleging conversion of building materials, had no connection to the contractual relationships of original contractor, subcontractor and owners. Privity of contract is not an element of conversion. See, e.g. Farmers & Merchants Bank of St. Clair v. Borg-Warner Acceptance Corp., 665 S.W.2d 636, 640 (Mo.App.1983).

The dismissal of Counts I and II. of the counterclaim is affirmed. The judgment, in all other respects, is reversed and remanded.

DOWD, P.J., and CRANDALL, J., conCur.


source: Caselaw Access Project

license: Public Domain

text:
    CUNETTO HOUSE OF PASTA, a Missouri corporation and Vincent J. Cunetto, Plaintiffs/Respondents, v. Jerry TUMA, Leroy Strubberg, James Cunetto and Cunetto Restaurant, Inc., Defendants/Appellants.
    No. 48530.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 13, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.

      Richard B. Dempsey, Briegel, Dempsey, Baylard & Patane, Union, for defendants/appellants.
    Walter L. Brady, Jr., Lee, O’Hanlon & Brady, St. Louis, for plaintiffs/respondents.
   CRIST, Judge.

Defendants appeal from the issuance of an injunction permanently barring them from using the name “Cunetto” and the names of two food preparations in the operation of a restaurant called “J. Cunetto’s”, located in West St. Louis County. We affirm in part and reverse in part.

Plaintiff Cunetto House of Pasta is a highly successful Italian Restaurant owned by plaintiff Vincent J. Cunetto (Vince). Defendant James Cunetto (James), Vince’s nephew, had worked for Vince in various capacities, including cook, in the restaurant. He was encouraged by Vince to learn the various recipes used in the restaurant. A few years later, James opened a restaurant in Union, Missouri, about fifty miles away from St. Louis, called “M.J. Cunetto’s”. This restaurant, featuring a format and menu strikingly similar to that of “Cunetto’s,” quickly failed. Strubberg blamed the failure of “M.J. Cunetto’s” on its location in Union and James’s lack of business and management ability.

James spoke with defendants Strubberg and Tuma, later to be the other two owners of J. Cunetto’s. Strubberg and Tuma agreed with James to open a restaurant in West St. Louis County, to be called “J. Cunetto’s”. The new restaurant also featured a format and menu strikingly similar to “Cunetto’s”. The restaurant is operated by a corporation. Strubberg, Tuma, and James, who was chosen as president because he would be on the premises more than the others, each own 100 shares of stock, purchased at $10 per share. Each borrowed the money for his stock from Tuma Investments, a corporation owned by Strubberg and Tuma. Through guaranties of loans and accounts payable and further advancements of personal monies, Strub-berg and Tuma have invested over $500,-000. James invested little or nothing.

Just a few days after “J. Cunetto’s” opened Vince commenced the present action seeking injunctive relief and damages. The application for a temporary injunction was taken with the application for a permanent injunction. The court found the name “Cunetto” was protectable as a tradename, and enjoined defendants from using the tradename “Cunetto’s” in St. Louis City or County, or using the name Cunetto or Cu-netto’s to identify their restaurant, and for $750.00 in damages. The court also found protectable trademarks in the name of two food preparations and enjoined defendants’ use of the names as well. Defendants appeal the grant of injunctive relief.

The status of “Cunetto’s” as a trade name is not denied. Defendants concede Vince proved the necessary secondary meaning to the name. Better Business Bureau, Etc. v. Chappell, 307 S.W.2d 510, 515 (Mo.App.1957); Shrout v. Tines, 260 S.W.2d 782, 788 (Mo.App.1953). It is also conceded actual confusion was shown in several calls made to plaintiff's restaurant for reservations at defendants’ restaurant. The challenge is based on the ground James Cunetto has the right to operate his business under his own name.

The right to operate under one’s own name is not unlimited. See Osborn Paper Co. v. Carrold Osborn Paper Co., 234 S.W.2d 614, 616 (Mo.1950). When a family name acquires a secondary naming, as it has in the instant case, the first user is entitled to protection. A family name cannot be used to appropriate the business of another. Id. at 616-617. The use here has caused confusion with the public as to whether “J. Cunetto’s” is related to “Cu-netto’s”. Such use, even of surnames, can be enjoined, and there was no error in the trial court doing so. Cook Chemical Co. v. Cook Paint and Varnish Co., 185 F.2d 365, 367 (8th Cir.1950); MacSweeney Enterprises, Inc. v. Tarantino, 235 Cal.App.2d 549, 45 Cal.Reptr. 546 (1965).

However, the court did err in holding the food preparation names were pro-tectable as trademarks. Vince claimed protection for “Margheritine con Covolfiore” and “Petto di Polio Alla Dorfo” as trademarks. Assuming a restaurant can establish the name of a food preparation as a trademark by using that name on its menu but see e.g. 74 Am Jur 2d Trademarks and Tradenames, § 7 (1974), neither of these names qualify for the protection. “Margheritine con Covolfiore,” claimed by Vince to be a misspelling of “Margheritina”, has been used without interference from Vince by another St. Louis restaurant. Vince did not show a protectable interest. Cf. Bass Buster Inc. v. Gapen Mfg. Co., Inc., 420 F.Supp. 144, 155, 159 (W.D.Mo.1976): The record was replete with reasons for choosing these names, but not with the dates when they where chosen and used, and therefore priority was not established. Finally, there was no showing defendants’ use of the names would confuse the public concerning Vince’s connection with defendants’ operation. Assuming they were trademarks, no infringement was shown. Anheuser-Busch, Inc. v. Stroh Brewery Co., 587 F.Supp. 330, 338 (E.D.Mo.1984).

Defendants raise two other points. As defendants did not file the exhibit they rely upon with the court, we cannot determine if their allegation concerning the status of plaintiff’s corporate charter, supposedly shown by this exhibit, is valid. The point is denied. Their assertion plaintiffs were guilty of laches is meritless, as suit was filed the same month defendants began operations. See Missouri Fed. of Blind v. National Fed. of Blind, Etc., 505 S.W.2d 1, 8-10 (Mo.App.1973).

The judgment is reversed insofar as it enjoins defendants’ use of the food preparation names. In all other respects, the judgment is affirmed.

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


author: KAROHL, Judge.

text:
    Samuel Edwin ASHCRAFT and Annabelle Ashcraft, Plaintiffs-Appellants, v. Travis D. ASHCRAFT, a minor, by his Next Friend, Renee ASHCRAFT, Intervenor-Plaintiff-Respondent.
    No. 48545.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 13, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.

      Ray A. Gerritzen, St. Louis, for plaintiffs-appellants.
    Lindal Dwayne Hackworth, Piedmont, for intervenor-plaintiff-respondent.
   KAROHL, Judge.

Plaintiffs, parents of decedent, appeal trial court order distributing funds that Allstate Insurance Company offered into court as payment on their uninsured motorist policy. The policy insured two vehicles. Plaintiffs’ original petition was in two counts, the first for the wrongful death of their adult son against an uninsured motorist and the second, a claim against Allstate Insurance Company based on their uninsured motorist policy.

Plaintiff-intervenor, son of the decedent and grandson of plaintiffs, intervened on both counts. Intervenor filed a motion for separate trials on the two counts which was granted. Allstate made an offer of judgment for $20,000 based on its insurance policy. After an evidentiary hearing on the apportionment of damages the trial court ruled that Allstate was liable for $20,000 and that $3,000 plus interest should be given to plaintiffs and $17,000 plus interest to the intervenor.

On appeal plaintiffs maintain that the intervenor, minor son of the decedent, should not have recovered any of the proceeds based on the insurance policy because he was not a party to the contract. Plaintiffs also contend that since the uninsured motorist filed a bankruptcy action all other legal actions concerning him must be stayed by reason of Federal Bankruptcy Law. Finally plaintiffs argue that the trial court could not apportion the damages because § 537.095 RSMo Supp.1984 requires that the total damages arising out of the fatal collision be determined prior to distribution.

The trial court order will be upheld unless there is no substantial evidence to support it, it is against the weight of the evidence or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The cause of action was separated into two trials, Count I, the wrongful death action against the uninsured motorist remains untried; the insurance claim was tried to the court and is the subject of this appeal. The first is an action in tort only against the uninsured motorist and the second an action in contract only concerning Allstate. Hill v. Seaboard Fire and Marine Ins. Co., 374 S.W.2d 606, 611 (Mo.App.1963). The action on the insurance contract is not a suit against the now bankrupt uninsured motorist. Rule 401 of the Bankruptcy Code, 11 U.S.C. 362(a) notes that the filing of a petition of bankruptcy stays the continuation of any noncriminal action against the bankrupt. The insurance policy was a contract between plaintiffs and Allstate. The resolution of that action in no way effects any claims that plaintiff or intervenor may have against the uninsured motorist.

To prevail on an action based on an uninsured motorist coverage a party must show (1) that the motorist was uninsured; (2) that that motorist is legally liable to the insured; and, (3) the amount of damages. Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713, 715 (Mo. banc 1979). It is not necessary to show an unsatisfied judgment against the uninsured motorist. Noland v. Farmers Insurance Exchange, 413 S.W.2d 530, 533 (Mo.App.1967).

Plaintiffs’ uninsured motorist policy provides that “Allstate will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury ... including death resulting therefrom ...” Insured is defined as “the named insured as stated in the policy, the spouse of any such named insured and relatives of either, while residents of the same household.” The Allstate policy named Samuel E. Ashcraft as the insured. The decedent, his adult son, resided with him in the family home. Consequently both Samuel and the decedent were insureds under the policy.

The policy provides recovery to the insured or his legal representative for damages caused by the death. When an insured has died his legal representatives may recover. In this case both plaintiff Samuel Ashcraft and intervenor Travis Ashcraft are legal representatives of the insured. See Cobb v. State Security Ins. Co., 576 S.W.2d 726, (Mo. banc 1979); § 537.080 RSMo Supp.1984.

In addition the policy provides that any amount Allstate owes under the policy is payable to "... (c) if the insured be deceased to his surviving spouse, otherwise (d) to a person authorized by law to receive such payment or to a person legally entitled to recover the damages which the payment represents.... ” In this case the damages represent payment for the wrongful death of decedent. Sterns v. M.F.A. Mutual Ins. Co., 401 S.W.2d 510, 517 (Mo.App.1966). See also Williams v. Williams, 23 Ariz.App. 191, 531 P.2d 924, 926 (1975). Section 537.080 RSMo Supp.1984 provides that “whenever the death of a person results from any act, conduct ... or circumstance which, if death had not ensued, would have entitled such person to recover damages ... damages may be sued for (1) by the spouse or children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive;” As decedent was single both plaintiffs, decedent’s parents and in-tervenor, decedent’s son are entitled to payment under the policy. Sterns, 401 S.W.2d at 517. See also Satzinger v. Satzinger, 156 N.J.Super. 215, 383 A.2d 753 (1978). The fact that the intervenor is not a party to the contract does not preclude his recovery because the policy bases recovery on the wrongful death statute. Sterns, 401 S.W.2d at 517. See also Satzinger, 383 A.2d at 756-757.

The trial court distributed the money from the policy “in proportion to the losses suffered by” plaintiffs and intervenor. Plaintiffs received reimbursement for the funeral expenses and intervenor’s loss was measured by the child support payments he would have received had decedent survived. This is in accordance with the terms of the insurance policy and § 537.095 which permits the court to apportion damages based on a wrongful death in accordance to the losses suffered by the claimants.

Appellants maintain that the trial court could not apportion the damages because the wrongful death act requires that total damages arising out of the collision must be determined prior to disbursement. Here the money was distributed in settlement of an insurance policy. The trial court found that under the policy Allstate was only liable for $20,000. Although the coverage under the policy referred to the fatal accident, and determination of who was entitled to relief was based on the wrongful death accident, the statutory requirement for determination of total damages does not apply to the contract action. The total damages for the contract action was established at $20,000. There may be other damages established in the tort claim. The wrongful death act requires that all those damages be determined prior to disbursement. The statute does not address damages to be recovered from a source other than the tort-feasor.

We deny respondent’s motion for assessment of damages for frivolous appeal and affirm the trial court’s order.

PUDLOWSKI, P.J., and GAERTNER, J., concur.

      . The resolution of this cause of action does not affect the extent of damages on the wrongful death claim. Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713, 721 (Mo. banc 1979). The award of damages in that cause of action will be reduced to the extent of any recovery awarded in this cause of action. This action does not determine total damages for the wrongful death claim-only for the contract claim. Oates at 719-21.

      . Legal representative includes more than the executor or administrator of the estate. It also includes "the parties benefitted by the rights conferred under the wrongful death act." Sterns v. M.F.A. Mutual Ins. Co., 401 S.W.2d 510, 519 (Mo.App.1966).


author: KELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael CAMPBELL, Defendant-Appellant.
    No. 48676.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 13, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.

      Daniel Gralike, Public Defender, St. Louis, for defendant-appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   KELLY, Judge.

Michael Campbell, appeals the judgment of conviction in the Circuit Court of the City of St. Louis of two counts of robbery in the first degree, § 569.020, RSMo 1978. Finding that he was a persistent offender, § 557.036, RSMo 1978, the trial court sentenced him to a term of 18 years in the custody of the Missouri Department of Corrections on each count, said sentences to be served concurrently.

Prior to trial, appellant filed a motion to sever the two counts for separate trials pursuant to Rule 24.07. This motion was denied. He then made an oral motion in limine to bar the introduction of evidence concerning a robbery at an East St. Louis, Illinois carwash which evidence would show that he and the three other men who participated in the two robberies for which he was on trial were also active parties. The trial court also overruled this motion.

On appeal he contends the trial court erred in overruling his pre-trial motion to sever the two offenses for separate trial because (a) the offenses with which he was charged were not based on the same act or on two or more acts which were part of the same transaction that constituted parts of a common scheme or plan, and (b) as a result of the joinder of offenses, testimony concerning an unrelated crime allegedly occurring in the state of Illinois was admitted which had no logical relevance to prove a material fact in issue in his case, and that he was thereby denied of his due process and equal protection rights guaranteed to him by the Missouri Constitution, Article I, Sections 2, 10, 15, and 18(a) and the United States Constitution, Amendments V, VI and XIV. We affirm.

Appellant does not question the sufficiency of the evidence to support his conviction. Viewed in a light most favorable to the state, the evidence supports the jury verdict as we shall hereinafter demonstrate.

Count I involved the hold-up of Richard Jackson at about 10:30 p.m. on September 10, 1983 at a self-serve carwash on North Vandeventer in the central part of the City of St. Louis. Jackson’s car was taken in that robbery by four black men. The four men had been on foot before. Two of the men had handguns. Jackson identified appellant as one of these men. The other three men involved allegedly were Kevin Davis, Jackie Southerland, and Louis Byrd. One of the men hit Jackson on the back of the head with an unknown object before the four left the scene with Jackson’s car.

Count II involved another robbery committed approximately three hours later, at about 1:00 a.m. on September 11, 1983, in the downtown St. Louis area. The victims of this second robbery were Bobby and Connie Branch. The couple had driven to St. Louis from Humboldt, Tennessee, to see a Cardinal football game. At the time of the robbery they were parked on the side of the road near Highway 70 and Highway 55 examining a road map. One car pulled up in front of the Branches’ auto while a second vehicle pulled up behind. One of these was Mr. Jackson’s dark blue Ford Mustang. Mrs. Branch got the license number. During the robbery, a tow truck passed slowly and one of the four black men involved fired a shot at it. The four then left quickly, with one of the men driving the 1980 Oldsmobile Cutlass that the Branches had been driving. Bobby Branch identified appellant as one of the four robbers.

Joinder is proper under Rule 23.05 if each of the offenses charged “are based on the same act or on two or more acts that are part of the same transaction or on two or more acts or transactions that constitute part of a common scheme or plan.” The Missouri Supreme Court has determined that for purposes of Rule 23.05 a common scheme or plan links two or more crimes together whenever the offenses are “products of a single or continuing motive.” State v. McCrary, 621 S.W.2d 266, 271[2] (Mo. banc 1981).

Appellant contends that the record does not support the conclusion that the motive inducing the robbery of Richard Jackson “lived on to induce the commission of similar acts” against the Branches. We disagree.

While the victims of these two robberies were not selected in advance, the record supports the finding that appellant and his partners in crime set out on the evening of September 10, 1983, with the intention of obtaining cars and money from targets of opportunity. They employed the car taken from Mr. Jackson at the St. Louis carwash for transportation to an East St. Louis, Illinois carwash where, under a modus operandi similar to the robbery at the St. Louis carwash they perpetrated another robbery and a second car, a Buick, was taken from the victim. Then, with the Mustang and the Buick the same four men proceeded to Highways 70 and 55 in St. Louis where they used both of these cars to sandwich in the Branch motor vehicle which was parked on the shoulder of the highway. The Buick was pulled up in front of the Branch Oldsmobile and the Mustang, driven by appellant, was pulled up behind the Branch automobile, thereby preventing the Branches from moving either backward or forward to escape being robbed. The robbery of the Branches was made possible in large part by the availability of the two cars appellant and his companions had obtained earlier in the other two robberies.

From the evidence we conclude that it is unlikely that appellant and his fellow robbers thought of the commissions of the subsequent two robberies only after the robbery of Jackson in St. Louis, or that he conceived the idea of committing the second and third robberies independently. This is particularly so because of the mo-dus operandi employed in each robbery. In each of these robberies the person or persons robbed were either near or in their respective car, and after the victim was relieved of his or her valuables, their car was stolen.

We believe that these similarities are an indication of the existence of a common scheme or plan to obtain valuables, money and cars by means of armed robbery. Also, when the appellant and his accomplices saw the Branches’ car, according to the testimony of Louis Byrd, one of the participants who was a prosecution witness, they didn’t have to stop and decide to rob the Branches. According to Byrd they seem to have decided to rob the Branches as soon as they saw the car stopped on the shoulder of the highway. This indicates a predetermined plan to rob targets of opportunity.

In State v. Ross, 611 S.W.2d 296, 298[2] (Mo.App.1981) this court held that if an automobile is both feloniously taken and used in the perpetration of a second crime a short time later, the two crimes can be considered part of the same transaction. The Ross case cites favorably State v. Johnson, 505 S.W.2d 11 (Mo.App.1974). In Johnson the defendant operated a motor vehicle without the consent of the owner and used it about an hour later to reach and depart from the scene of a robbery. The court held that the felonious taking of the automobile and the subsequent robbery were part of the same transaction and properly joined for trial. Ross and Johnson are, in our opinion, controlling in the circumstances of this case, where appellant and his accomplices were driving the Branch automobile when they were observed and chased by the police who recognized the license plate on the Branch Oldsmobile as that of the Ford Mustang reported stolen a few hours earlier by Richard Jackson. Proof of the first St. Louis robbery was further interconnected with the second St. Louis robbery by the fact that appellant used the Mustang stolen in the first robbery to block the escape of the victims in the second robbery.

Appellant also contends that evidence of the robbery in East St. Louis was improperly admitted. This point was not properly preserved for appellate review because no objection was made at trial to the admission of such evidence. While a motion in limine was orally made prior to commencement of the trial to exclude the evidence and overruled, timely objection at trial is required to properly preserve the point on appeal. State v. Allbritton, 660 S.W.2d 322, 328[13] (Mo.App.1983); State v. Johnson, 586 S.W.2d 437, 440[1] (Mo.App.1979). No objection to Louis Byrd’s testimony concerning the East St. Louis robbery was voiced. Thus, if we are to afford this point review, we must do so as “plain error” under Rule 29.12(b). Appellant has failed to demonstrate a manifest injustice or miscarriage of justice has resulted from admission of this evidence and therefore we find no “plain error” which would cause us to reverse these convictions.

Even if timely objection to this evidence had been made, the trial court would not have committed reversible error in overruling said objection and admitting it. This evidence established that appellant and his accomplices had access to a light colored Buick with Illinois license plates. A car meeting this description was involved in the Branch robbery. This evidence had a tendency to implicate appellant in the Branch robbery and also tended to establish that he was on a “preconceived and deliberate criminal foray.” State v. Buxton, 324 Mo. 82, 22 S.W.2d 635, 637 (Mo.1929). Ultimately, the testimony indicated the existence of a common scheme or plan in which multiple robberies were contemplated. This would have been sufficient reason for admission of this evidence. Steve v. Reese, 364 Mo. 1221, 1226, 274 S.W.2d 304, 307 (Mo. banc 1954).

Judgment affirmed.

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


author: REINHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Sherriad WHITE, Appellant.
    No. 48700.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 13, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.

      Macarthur Moten, St. Louis, for appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   REINHARD, Chief Judge.

Defendant was convicted of manslaughter. In accordance with the punishment assessed by the jury, the court sentenced defendant to ten years’ imprisonment. He appeals, claiming infringement of his constitutional right to a speedy trial. We affirm.

In November of 1982, five-year-old Charles Akins moved in with his aunt and uncle (defendant) at the request of his mother, who was homeless and unable to support Charles. Defendant and his wife took Charles in and supported him in the same manner as their own two children. Charles was hyperactive and had some behavioral problems at school. On February 9, 1983, after the children came home from school, defendant’s son reported that school personnel were no longer going to allow Charles to stay and play after school because Charles had created a disturbance with a wire, a pan of water, and an electrical outlet. Defendant’s wife asked defendant to give Charles a “whooping” as punishment.

Defendant spanked Charles with a belt, and then had Charles stand in a corner for a period of time. Defendant’s wife and children left the house for a school meeting during that time. Defendant again spanked Charles, striking him severely as he tried to escape. Defendant then had Charles stand in the corner where he cried and trembled. Some time later, defendant sent Charles to bed in defendant’s room. Charles limped as he went to bed. Later, when the wife returned and Charles was moved to his own bed, he was non-responsive. Defendant called an ambulance, and Charles was pronounced dead at the scene. Defendant made a taped statement to police in which he admitted striking the child and stated, “I guess this time I may have got carried away. ...”

The state filed a complaint on February 10, 1983, and defendant was indicted for manslaughter on February 22. Trial was set for March 21, but the cause was continued twice for the state and trial was reset for June 13. On June 15, before trial had begun, defendant was indicted for second degree murder based on the same facts. On the following day, the manslaughter indictment was suspended.

Defendant’s murder trial was set for July 25, 1983. However, the state was granted three continuances and trial was reset for November 14. On November 16, after a jury was selected and pretrial motions were heard and ruled upon, the state filed a memorandum of nolle prosequi “due to the fact the state elects not to proceed at this time.” It appears from the record that a witness for the state was unavailable at that time.

On the same day, the state filed yet another complaint against defendant, and defendant was again indicted for second degree murder. On November 30, defendant filed a motion to dismiss the indictment, alleging infringement of his right to a speedy trial. The court overruled the motion, and set trial for January 15, 1984. After two continuances for the state and one for defendant, trial began on March 26.

During the more than thirteen months from initial arrest to trial, defendant was incarcerated for eighteen days after the manslaughter indictment, twenty-two days after the first murder indictment, and four months after the third indictment. While in prison after the third indictment, defendant obtained an eighteen-day continuance. Of the seven continuances for the state, five were granted because the state’s attorney was in another trial.

On appeal, defendant’s sole point is:

The trial court erred in overruling defendant’s proper motions to dismiss the second-degree murder indictment against him for failure to prosecute because said action denied defendant his right to a speedy trial as secured by the sixth amendment of The United States Constitution in that defendant was seriously prejudiced by the thirteen-month delay between his initial arrest and subsequent trial.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court analyzed the sixth amendment right to a speedy trial when it rejected a defendant’s claim of infringement. This analysis has been adopted in Missouri. See, e.g., State v. Bolin, 643 S.W.2d 806 (Mo. banc 1983). In Barker, the defendant was indicted for murder. The delay from arrest to trial was more than five years, and the state had obtained sixteen continuances. Defendant did not object to the delay until three and a half years after the arrest. Speaking for a majority of the court in a unanimous decision, Justice Powell stated:

The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused....
... [Ujnlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to a speedy trial does not per se prejudice the accused’s ability to defend himself.

407 U.S. at 519-21, 92 S.Ct. at 2186-87. Thus, merely because there has been a lengthy delay does not mean the speedy trial right has been infringed so as to require a reversal. Rather, the Court set out an ad hoc balancing test to aid in determining whether an infringement has occurred. 407 U.S. at 530, 92 S.Ct. at 2192.

The first factor to be weighed is the length of the delay. Unless the length of delay is “presumptively prejudicial,” there is no need to inquire into the other three factors. Whether a given length of time triggers further inquiry depends upon the circumstances of each case; for example, “[t]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious ... charge.” 407 U.S. at 531, 92 S.Ct. at 2192. For purposes of the sixth amendment analysis, the length of delay is measured from the time defendant becomes an “accused,” either by indictment or when he is actually restrained by arrest and charged. United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971); State v. Black, 587 S.W.2d 865, 872 (Mo.App.1979). Here, because defendant continually faced charges from the time of initial arrest until trial, he became an “accused” when he was first arrested and charged, more than thirteen months before he was tried. See State v. Granger, 680 S.W.2d 258 (Mo.App.E.D.1984). Although Missouri cases establish no exact formula for determining whether this delay is “presumptively prejudicial”, as a general rule our courts hesitate to preclude further inquiry into the Barker factors. See State v. Bolin, 643 S.W.2d at 813-14. We find that the delay in the circumstances of this case warrants further inquiry. Cf the following delays held to be “presumptively prejudicial”: State v. Bolin, 643 S.W.2d 806 (Mo. banc 1983) (seven months in a burglary case); State v. Buckles, 636 S.W.2d 914 (Mo. banc 1982) (fifteen months in a capital murder case); Stokes v. State, 688 S.W.2d 19 (Mo.App.E.D.1985) (sixteen months in a capital murder case); State v. Granger, 680 S.W.2d 258 (Mo.App.E.D.1984) (fifteen months in a robbery case); State v. Harris, 673 S.W.2d 490 (Mo.App.1984) (fifteen months in a drug possession case); State v. Morris, 668 S.W.2d 159 (Mo.App.1984) (twenty-eight months in a manslaughter case).

The second factor to be weighed is the reason for the delay. If the state has deliberately hampered the defense, this should weigh heavily against the state. If the delay is due to the state’s negligence or overcrowded courts, this weighs less heavily against the state. If the delay is for a valid reason, such as a witness who is unavailable, it is justified and is not to be weighed against the state. Barker, 407 U.S. at 531, 92 S.Ct. at 2192. Here defendant’s request for a continuance contributed eighteen days to the delay. Five of the state’s continuances were granted because of conflicting trials. These are not weighed heavily against the state, although the state is ultimately responsible for such circumstances. Id. The second indictment was for the more serious charge of second degree murder, and one of the state’s witnesses was absent at the time of trial. There is no indication on the record that the state was deliberately hampering the defense. We weigh this factor against the state, although not heavily.

The third factor under Barker is when and how the defendant asserted his right to a speedy trial. 407 U.S. at 531, 92 S.Ct. at 2192. In this context, the right is again different from other constitutional rights in that a delay may or may not work to the defendant’s benefit. Thus, the Court set no rigid requirement for when the right must be asserted, but rather held that the circumstances surrounding the assertion or failure to assert comprised one of the factors to be weighed. 407 U.S. at 526, 92 S.Ct. at 2190. The Court also noted that the defendant in that case had not asserted the right through a motion for an immediate trial, but moved to dismiss the indictment, thus indicating a desire to avoid trial rather than to have a speedy trial. 407 U.S. at 534-35, 92 S.Ct. 2194. Here, defendant likewise first asserted the right in a motion to dismiss on November 30, 1983. This was more than nine months after the initial arrest and complaint. Although the defendant did nothing to hamper the commencement of his trial, he neither objected to the state’s continuances nor asked for his trial to begin quickly. We weigh this factor against defendant.

The final and most important of the Barker factors is whether the delay actually prejudiced the defendant. Analysis of this factor encompasses three interests which are protected by the right to a speedy trial: (1) prevention of oppressive pretrial imprisonment; (2) minimization of defendant’s anxiety and concern; and (3) limitation of the possible impairment of the defense. Barker, 407 U.S. at 532, 92 S.Ct. at 2192-93. The most important of these interests is the last. Id. “The resulting prejudice to require reversal must be actual prejudice apparent on the record or by reasonable inference — not speculative or possible prejudice.” State v. Buckles, 636 S.W.2d 914, 920 (Mo. banc 1982) (citing United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971)).

As to the first two interests, defendant complains that the thirteen month delay and five months of incarceration caused “lost earnings and the hard feelings of his employer,” and that “the prospect of being held responsible for [the child’s] untimely death weighed heavily upon him.” While these claims are no doubt true, we believe they are outweighed by the lack of impairment to his defense. We also note that defendant’s own request for a continuance was made while he was in prison, thus prolonging his incarceration. Defendant does not claim the loss of a witness or loss of a witness’ memory; rather, he claims that with the money he would have earned had he not been incarcerated during the delay, he could have hired an expert to investigate other possible causes of the child’s death. This claim is speculative and not supported by the record. On balance, we find that defendant was not prejudiced by the delay.

In balancing the four factors of the Barker analysis, we note that the only available remedy for infringement of the right to a speedy trial is “the unsatisfactorily severe remedy of dismissal of the indictment.” Barker, 407 U.S. at 522, 92 S.Ct. at 2187-88. Although the state could and should have acted more quickly than it did, we are persuaded that defendant’s constitutional right to a speedy trial was not infringed. Affirmed.

DOWD and CRANDALL, JJ., concur.


author: PER CURIAM:

text:
    Jerry HUTCHINS, Appellant, v. STATE of Missouri, Respondent.
    No. 48740.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 13, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.
    Marianne Marxkors, Asst. Public Defender, St. Louis, for appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DOWD, KELLY and CRAN-DALL, JJ.
   ORDER

PER CURIAM:

Appellant entered guilty pleas in the Circuit Court of the City of St. Louis to charges of burglary in the first degree, and assault in the first degree, §§ 569.160 and 565.050, RSMo 1978, respectively. He was sentenced to twelve years on each charge, to be served concurrently with one another and with another seven year sentence for stealing imposed at the same time. One 27.26 motion was filed on both the burglary in the first degree and the assault in the first degree charges, and the trial court denied the motion without an evidentiary hearing. Hutchins appeals. The judgment is affirmed in accordance with Rule 84.-16(b).


text:
    STATE of Missouri, Respondent, v. Charles K. STARR, Appellant.
    No. 48772.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 13, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.

      Debra Buie Arnold, Public Defender, St. Louis, for appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   REINHARD, Chief Judge.

Defendant, Charles Starr, appeals his conviction, after a jury trial, of two counts of robbery first degree, § 569.020 RSMo (1978), and one count of armed criminal action, § 571.015 RSMo (1978). He was found to be a prior offender, § 558.016.2. RSMo (Supp.1984), and sentenced by the court to twenty-five years’ imprisonment on each of the robbery counts and five years’ imprisonment on the armed criminal action count. All sentences were to run consecutively. We affirm.

Defendant does not challenge the sufficiency of the evidence to support the convictions. A detailed review of the facts is therefore unnecessary. There was clearly sufficient evidence to support the verdict on all counts.

Defendant’s sole point on appeal challenges the trial court’s denial of his motion for a mistrial which alleged that one of the jurors had “been sleeping on and off [for a] half hour.” In overruling the motion, the trial judge indicated that he had observed the juror but did not think the juror had been sleeping. Defense counsel did not ask to question the juror or for any less drastic relief.

“The granting of a mistrial rests largely within the discretion of the trial court. The trial judge ‘has observed the incident giving rise to the request for mistrial and is in a better position than an appellate court to evaluate the prejudicial effect and possibility of its removal by action short of a mistrial.’ ” State v. Pirtle, 652 S.W.2d 272, 273 (Mo.App.1983) (quoting State v. Heather, 498 S.W.2d 300, 303 (Mo.App.1973)). Here the court observed the event giving rise to the request, and determined that the request was based on a misperception of that event. Defense counsel made no attempt to establish, on the record, whether the juror had in fact been sleeping. Therefore, we find no abuse of discretion in the court’s denial of the motion for a mistrial.

The judgment is affirmed.

DOWD and CRANDALL, JJ., concur.


author: CLEMENS, Senior Judge.

text:
    STATE of Missouri, Respondent, v. Lawrence J. MEROLA, Appellant.
    No. 48782.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 13, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.

      Mark V. Clark, Columbia, for appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Senior Judge.

Under § 216.460 RSMo. a prison inmate who offers violence to a guard faces from 2 to 5 years further confinement. The state dually charged defendant-prisoner with that violation. A jury found defendant guilty and the court sentenced him as a prior felon to two concurrent four-year prison terms. He appeals.

Here defendant makes two points. First he contends the court erred in letting him represent himself without his written waiver of counsel as provided in § 600.051 RSMo. Second defendant claims error in the verdict directing instruction omitting a mental element of his conduct.

The evidence: The first crime charged was that during defendant’s absence a prison guard made a routine inspection of his cell and there found and confiscated prohibited food and utensils; that when defendant returned to his cell he profanely threatened the guard and hit him with a cup.

Under prison rules this first encounter required the guards to take defendant to a prison nurse for physical examination. Minutes after the first encounter guards opened defendant’s cell door and he struck one in the head. A free-for-all followed in which defendant was also injured.

We now consider defendant’s first point that the state failed to get his written waiver of counsel as required by § 600.-051.1. The state relies on the record showing defendant did in fact have counsel at trial.

Defendant relies on Peterson v. State, 572 S.W.2d 475 (Mo. banc 1978). That case condemned a conviction where defendant had appeared without counsel and entered a guilty plea. It is not in point.

The record here shows: Defense counsel actively took part in all pre-trial matters and was prepared to defend at trial. When defendant said he wanted to personally examine witnesses the trial court warned him of being his own lawyer and ordered defense counsel to remain at the counsel table, which counsel had requested, so as to give defendant any requested advice. The trial court declared that from voir dire through the instruction conference defense counsel had been available to defendant for consultation.

As we ruled in State v. Johnson, 586 S.W.2d 437[18, 19] (Mo.App.1979):

“Since appellant did not waive this right to counsel but proceeded, in the court’s discretion, as co-counsel with an attorney’s assistance, a written waiver was not necessary.”

To the same effect see State v. Tyler, 587 S.W.2d 918[1, 2] (Mo.App.1979). We deny defendant’s first point and take up his other point.

There defendant claims error in the state’s verdict directors by failing to posit a mental element. The instruction was based on § 216.460 RSMo. prescribing punishment for a prisoner who “offers any violence” to a prison guard. Defendant submits no case in point, but the state refutes the contention. It cites State v. Jackson, 500 S.W.2d 306[1] (Mo.App.1973) ruling on the cited statute and holding, as had been held in State v. Goodman, 425 S.W.2d 69[2] (Mo.1968), that assault on a prison guard “is unlike ordinary felonious assault in that intent to do great bodily harm need not be charged or proved.”

Affirmed.

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


text:
    STATE of Missouri, Respondent, v. Anthony PRIMM, Appellant.
    No. 48796.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 13, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.
    Henry B. Robertson, Public Defender, St. Louis, for appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent. •- ,
    Before DOWD, CRIST and CRANDALL, JJ.
   ORDER

PER CURIAM:

Defendant, Anthony .Primm, appeals from his convictions, after a jury trial of two counts of assault in the second degree. He was sentenced to concurrent terms of five years’ imprisonment. No jurisprudential purpose would be served by a written opinion. The judgment of the trial court is affirmed pursuant to Rule 30.25(b).


author: PUDLOWSKI, Presiding Judge. GAERTNER, Judge,

text:
    David BLISSENBACH and Luanna Blissenbach, Plaintiffs-Respondents, v. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Defendant-Appellant.
    No. 48846.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 13, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.

      Evans & Dixon, Laura B. Allen, Edward S. Meyer, St. Louis, for defendant-appellant.
    Rodney H. Powell, St. Louis, for plaintiffs-respondents.
   PUDLOWSKI, Presiding Judge.

This action involves a claim for damages brought by plaintiffs-respondents David and Luanna Blissenbach against defendant-appellant Provident Life & Accident Insurance Company for medical expenses arising from the birth of their son. The trial court granted summary judgment in favor of the Blissenbachs in the amount of $1,813.23. We affirm.

On or about May 1, 1976, Provident Life & Accident Insurance Company (Provident Life) issued its group insurance policy # G-316 to Alvin Optical Enterprises, Inc. David Blissenbach, an employee of Alvin Optical, and his wife, Luanna, enrolled to obtain coverage under the policy. On September 27,1977, employment was terminated. On December 1, 1977, Alvin Optical failed to pay the premium due for the policy. The policy was cancelled effective December 31, 1977.

Thereafter, Luanna Blissenbach gave birth to a child on January 16, 1978. The Blissenbachs filed a claim for benefits under the group insurance policy. Provident Life declined to pay the claim asserting the master policy had been terminated on December 31, 1977.

Provident Life’s sole point on appeal contends the trial court erred in finding the group insurance policy afforded maternity benefits because the plain and unambiguous terms of the contract provided no coverage unless the master policy was in effect and the Blissenbachs’ incurred no hospitalization or obstetrical expenses until after cancellation of the master policy.

It is well settled that a master group policy can be cancelled or modified by the group sponsor, so as to terminate the coverage of an individual member, without the latter’s consent, if such a right is given by the contract. Satz v. Prudential Insurance Company of America, 225 S.W.2d 480, 482 (Mo.App.1949) However, to defeat liability on an insurance contract, the termination must be effective before any liability attaches. Kingsland v. Missouri State Life Insurance Company, 228 Mo.App. 198, 66 S.W.2d 959, 961 (1934). Thus, the issue before this court is whether the contract provided insurance for medical and hospital expenses for an injury or illness (pregnancy) occurring during the life of the policy or for the payment of the costs of such services incurred during the policy period.

In relation to pregnancy, courts have generally followed two lines of reasoning. Courts have based their decisions as to the insurer’s liability for hospital and medical expenses upon a consideration of whether the language of the policy provided coverage only for childbirth occurring during the policy term, Lundquist v. Illinois Life & Accident Insurance Co., 24 Ill.App.2d 316, 164 N.E.2d 293 (1960), or whether it also provided coverage for any condition arising out of, and during, pregnancy, Blue Cross-Blue Shield of Alabama v. Turner, 43 Ala.App. 542, 195 So.2d 807 (1966), in the event of which the insurer’s liability was ruled to have become fixed at the moment of the conception of a child by the insured.

Turner was a case where the group insurance policy provided for maternity care benefits “for any condition arising out of and during pregnancy.” The court held that the liability of the insurer attached at the moment of conception, and that through the payment of premiums the insured had obtained an interest in the policy which was sufficient to prevent a cancellation. In so ruling, the court distinguished the policy language in this case from that which was involved in Lundquist, wherein the policy in question provided, “when the insured, if a married woman, or the wife of the insured, if a dependent, shall while this policy is in force ..., give birth to a child or children, the Company will pay the expense actually incurred in connection there-with_” The court emphasized that under the policy insuring the plaintiff in Turner, benefits were provided not just for childbirth but “for any condition arising out of and during pregnancy.”

In the case at bar, the master policy stated in relevant part:

With respect to pregnancy, benefits will be payable as provided above for confinement beginning within nine months after termination of insurance if the pregnancy of the employee or dependent wife exists on the date of such termination, and if benefits would have been payable and the confinement begun on the date of termination of insurance. This provision shall be applicable only if this policy is in effect on the date of commencement of confinement.

This policy is similar to that of Turner’s. Coverage began at the moment of conception. The coverage was for the condition arising out of and during pregnancy. Thus, liability attached before termination could be affected. Kingsland.

Judgment affirmed.

GAERTNER, J., concurs with separate opinion.

KAROHL, J., concurs.

GAERTNER, Judge,

concurring.

I concur in the majority result, but for somewhat different reasons.

The Supreme Court in Robin v. Blue Cross Hospital Service, Inc., 637 S.W.2d 695 (Mo.banc 1982), succinctly stated the law regarding interpretation of insurance contracts:

The rules of construction applicable to insurance contracts require that the language used be given its plain meaning. Madison Block Pharmacy, Inc. v. United States Fidelity & Guaranty Co., 620 S.W.2d 343, 346 (Mo. banc 1981); Moskowitz v. Equitable Life Assur. Soc. of the United States, 544 S.W.2d 13, 20 (Mo. banc 1976). If the language is unambiguous the policy must be enforced according to such language. Moskowitz, 544 S.W.2d at 20; State Farm Mutual Automobile Co. v. Thomas, 549 S.W.2d 616, 618 (Mo.App.1977). If the language is ambiguous it will be construed against the insurer. Meyer Jewelry Co. v. General Insurance Co. of America, 422 S.W.2d 617, 623 (Mo.1968). Language is ambiguous if it is reasonably open to different constructions; and language used will be viewed in light of “the meaning that would ordinarily be understood by the layman who bought and paid for the policy.” Stafford v. Travelers Ins. Co., 530 S.W.2d 23, 25 (Mo.App.1975).

Id. at 698.

The provisions of the master policy relating to maternity benefits are set forth in the majority opinion. Within the same policy clause, the drafters state benefits will be paid “for confinement beginning within nine months after termination of insurance” and simultaneously provide “the provision shall be applicable only if this policy is in effect on the date of commencement of confinement." (emphasis added). Applying the rules set forth in Robin, it is clear this language is ambiguous to say the least. The former provision provides for pregnancy benefits even after the termination of the policy whereas the latter section attempts to negate this coverage. Thus, within the same clause coverage is both given and taken away.

As an insurance contract, the language of the policy must be interpreted in favor of the insured and against the insurer. Robin, 637 S.W.2d at 698.

Accordingly, for the reason that the conflict in policy terms must be resolved in favor of the insured, I concur in the affirmance.


author: NUGENT, Judge.

text:
    Ed W. FOLTZ, Plaintiff-Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellant.
    No. WD 35095.
    Missouri Court of Appeals, Western District.
    Feb. 19, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Application to Transfer Denied May 29, 1985.

      Spencer J. Brown, Deacy & Deacy, Kansas City, for defendant-appellant.
    Jo B. Gardner, Jo B. Gardner, Inc., Mon-ett, for plaintiff-respondent.
    Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
   NUGENT, Judge.

Defendant, Burlington Northern Railroad Company, appeals from a verdict and judgment under the Federal Employers’ Liability Act in favor of plaintiff Ed Foltz for damages suffered as a result of defendant’s negligence. Burlington Northern claims the trial court erred in instructing the jury, that the evidence was insufficient to support submission of the case to the jury, and that the verdict is excessive. We affirm.

Mr. Foltz is a railroad employee of the defendant working as a switchman in a railyard in Kansas City. Mr. Foltz along with four other crew members was responsible for switching tracks in the yard. At the time of trial, he was fifty-four years old and had been railroading since he was eighteen years old. The plaintiff has an eighth grade education and has no other skills beside his railroad training. His approximate yearly wages are $47,000.

Between May of 1978 and June of 1981 Mr. Foltz suffered a series of four injuries in the course of his employment for which he filed suit under the Federal Employers’ Liability Act (FELA), 45 U.S.C. 51, et seq.

In April of 1983, the case was tried to a jury which returned a verdict in favor of defendant on plaintiff’s first, second, and fourth causes of action, and a verdict in favor of plaintiff on his third cause of action awarding him $190,000, and judgment was entered accordingly. The trial court denied defendant’s motion for judgment notwithstanding the verdict and in the alternative a new trial.

Although plaintiff has not appealed from the three verdicts in favor of defendant, we set out the facts concerning all four of the injuries because they form part of the factual basis for the legal issues presented by this appeal.

The three occurrences about which the jury found in favor of defendant took place on May 24, 1978, September 25, 1978, and June 1, 1981, and all involved similar facts. In each of those incidents, plaintiff stepped from the cab of a train or a train car onto uneven ground or into a hole, injuring his foot, leg, hips and back.

The jury found in favor of plaintiff on his third cause of action which stemmed from an injury that occurred on August 19,1979. On that date, plaintiff manually threw a switch to realign tracks in the yard. To throw the switch he first had to push it to a vertical position and then compress it all the way down to complete the operation. At trial, plaintiff testified that the switch was difficult to throw and that as he was pulling it down he experienced sharp pains in his lower back and hips.

Plaintiff also testified that he had reported this difficulty with the switch to his crew foreman five days before the August 19 injury. That testimony was not contradicted. Plaintiff’s witness, Reyburn Jones, testified that he had operated the switch before plaintiff’s injury and that it had been difficult to throw. He further testified that he had reported the condition to the foreman, but he could not say for how long the switch had been in that condition or when he had made the report. After the incident, the difficulty was again reported, and a witness for defendant, a section foreman, testified that he inspected the switch in response to the report in August of 1979 and found it difficult to throw, but found no mechanical defect. he

Both parties presented medical evidence concerning the plaintiffs injuries allegedly caused by defendant's negligence. The plaintiff had suffered injuries to his back in 1951, 1955, and 1966, but the evidence conflicted as to whether those injuries had completely healed by May of 1978.

Plaintiff presented the testimony of two physicians who had examined him, the first being Dr. Arnold Schoolman, a neurosurgeon. He testified that plaintiff was suffering osteophytes, also known as degenerative arthritis, basically a condition of bone spurs in the spine which narrow the spinal passage opening causing back pains. Counsel asked the doctor the hypothetical question whether the plaintiff’s throwing of the switch could have caused plaintiff’s back condition. He answered, “Well, certainly anything that is trauma to this patient could have been a contributory cause, and if what you say he did, he did, it could have contributed to his back pain.” Also in response to hypothetical questions positing the facts of the other three injuries, the doctor testified that they too could have contributed to plaintiff’s back condition. He was troubled by the other injuries and could not say whether one of the injuries alone caused the condition.

Plaintiff’s attorney next asked Dr. Schoolman whether, based on the fact that Mr. Foltz had complained of the back pain since the first occurrence in 1978, he had an opinion as to the permanency of the condition. He responded, “Certainly the longer the duration of the pain, the more likely it is that he is going to be troubled with it in the future.” He said that this was not equivalent to permanence but that the longer the pain had existed in the past, the longer it would continue in the future. On cross-examination, the doctor testified that he was unaware of plaintiff’s pre-1978 injuries and that they could have contributed to the back condition if they were not healed by the time of the first injury.

Plaintiff next called a second examining physician, Dr. Meyers, a family practitioner who had some training in orthopedics. His examination also revealed evidence of os-teophyte formation in Mr. Foltz’ spinal column. In response to a hypothetical question about plaintiff’s August 19 throwing of the switch, he stated that as a result plaintiff would have sustained substantial trauma to his lower back. Similarly, he testified that the other three injuries sued upon could have contributed to the back condition. He could not pinpoint any one of the injuries as the sole cause, but stated that any trauma to the back could force the spurs to move, causing pain. He also testified that without surgery plaintiff would suffer continuous and increasing pain of an undeterminable degree and that the condition would cause considerable pain when plaintiff performed manual labor and could eventually prevent him from doing all manual labor.

On cross-examination, Dr. Meyers testified that he was unaware of the plaintiff’s pre-1978 injuries, but that if they had not healed by the time of the first occurrence the condition would already have become chronic. On redirect, the doctor read from a 1966 hospital report concerning plaintiff's 1966 injury which stated that the earlier injuries were completely healed.

Mr. Foltz also testified as to his injuries and the pain that he was suffering. He stated that he was in constant pain and that he was unable to get a full, uninterrupted night’s sleep. Because of the pain he could not ride in an automobile for long distances, he had trouble sitting, and at times he was unable to disrobe. The pain persisted in varying degrees while he worked, and it interfered with his leisure time activities of hunting, fishing and gardening. His condition aggravated him and made him irritable with his friends and family. He did not testify that his pain was the result of only the August 19 injury. Finally, he testified that he had lost $1,900 in wages because of the August 19 occurrence.

The defendant called an orthopedic surgeon, Dr. John Barnard, who had examined the plaintiff after this action began. He said that plaintiff had an osteophyte condition and that the condition could result from ordinary wear and tear, strenuous manual labor, or could be caused by trauma. As far as he could tell, the condition was brought on by more than one trauma to plaintiffs back. On cross-examination, he testified that any of the traumas involved in this case could have contributed to the condition.

All of the medical witnesses agreed that plaintiff has an osteophyte condition in his spinal column and that any of the four injuries sued upon here could have caused or contributed to Mr. Foltz’ back problem. None of them was able to say that the August 19 injury was the sole cause of the problem. They all agreed that the bone spurs would cause pain. The doctors who testified for plaintiff stated that the pain would continue in the future but would not say that it was permanent.

At both the close of plaintiff's evidence and the close of all the evidence, defendant moved for a directed verdict. Both motions were denied. The jury returned its verdicts, awarding plaintiff $190,000 on his third cause of action, and judgment was entered. Defendant filed a motion for judgment notwithstanding the verdict or in the alternative a new trial, which was denied.

Defendant raises four points on appeal: First, that jury instruction No. 17, based on M.A.I. Third 24.01, was erroneous because it did not include an additional instruction on foreseeability as recommended by the notes on use, M.A.I. Third 24.01. Second, that jury instruction No. 19, based on M.A.I. Third 4.01, included an instruction for future pain and suffering which was not supported by sufficient evidence. Third, that the verdict was grossly excessive, requiring a new trial or remittitur, and, fourth, that the trial court erred in not granting defendant’s motions for a directed verdict and judgment notwithstanding the verdict because plaintiff had not presented a submissible case.

Two of defendant’s points require a review of the jury instructions given in the case. Rule 70.02(c) sets forth the effect of error in instructing the jury: “The giving of an instruction in violation of the provisions of this rule shall constitute error, its prejudicial effect to be judicially determined.” Ordinarily, deviation from the requirements of M.A.I. is not approved, but a deviation may not be prejudicial. Burrell v. Mayfair-Lennox Hotels, Inc., 442 S.W.2d 47, 54 (Mo.1969). Here we find no deviation from the requirements of M.A.I. in the instructions submitted.

I.

Defendant’s first point concerns instruction No. 19 which was based upon M.A.I. 24.01, a verdict directing instruction in FELA cases. The judge instructed the jury as follows:

Your verdict must be for plaintiff if you believe:
First, August 19, 1979, defendant failed to provide reasonably safe conditions for work, or reasonably safe appliances, and
Second, defendant in any one or more of the respects submitted in Paragraph First was negligent, and
Third, such negligence resulted in whole or in part in injury to plaintiff.

The defendant’s complaint is that the judge did not include the following additional paragraph provided for in the Notes on Use, M.A.I. Third 24.01 (1981 revision): “defendant knew or by using ordinary care should have known of such condition, and that such condition was reasonably likely to cause substantial harm.” The notes explain that the additional paragraph should be given when plaintiff submits some act of negligence, constructive knowledge of which is not chargeable to the defendant railroad. Defendant asserts that plaintiff did not present sufficient evidence to justify the judge’s conclusion that the railroad was chargeable with constructive knowledge of the condition of the switch, thus the additional instruction was required. Plaintiff counters that defendant had actual knowledge of the state of the switch and the omission was not in error.

The resolution of this point depends upon whether a defendant railroad can be charged with constructive knowledge of a negligently produced condition. Implicit in the notes on use explanation as to when the additional instruction is required is the idea that the judge must decide whether the plaintiff has presented sufficient evidence to justify not submitting the issue to the jury. Obviously, if the judge decides that plaintiff has shown defendant had actual knowledge, the instruction is not required.

Defendant relies principally upon White v. St. Louis San Francisco Ry. Co., 539 S.W.2d 565 (Mo.App.1976), as authority for its argument. In White, the court in dictum stated that, unless plaintiff shows that the condition or defendant’s action violated a safety rule, the additional instruction must be given. In the ease at bar, plaintiff did not show that the condition of the switch violated a railroad safety rule. The mere violation of the safety rule charges the defendant with constructive knowledge.

The White decision relies upon two Missouri Supreme Court decisions for the dictum mentioned above. Both of the cases concerned alleged errors in pre-M.A.I. instructions. In Adams v. Atchison, Topeka and Sante Fe Railway Co., 280 S.W.2d 84, 92 (Mo.1955), the court held that, where violation of a safety rule is shown, the evidence need not show that plaintiffs injury could have been reasonably anticipated. In the second case, Hughes v. Terminal R. Ass’n of St. Louis, 265 S.W.2d 273, 280 (Mo.1954) (en banc), the court held that, where no violation of a safety rule or custom was shown, a court could not hold as a matter of law that defendant had the duty alleged by the plaintiff and the issue was for the jury. Neither of the cases construed the notes-on-use provision in question here. The White decision only stands for the proposition that, if plaintiff shows a violation of a safety rule, then the additional instruction is not required. In light of Wilmoth v. Chicago R.I. & P.R. Co., 486 S.W.2d 631, 639 (Mo.1972), the White case does not dictate that plaintiff must show a violation of such a rule to justify omitting the notes-on-use addition.

The Wilmoth case did involve the use of M.A.I. 24.01 without the additional instruction in a FELA case; the court held that the omission was not error. Wilmoth was a wrongful death action where plaintiff alleged defendant was negligent in not providing the decedent with adequate help in performing his job as station master. The decedent died of a heart attack while unloading mail from a train by himself. The defendant had actual knowledge of the un-derstaffing because the decedent had worked at the same station for sixteen years and during that time the defendant had reduced the staff from five to two even though the amount of work at the station had not decreased. The defendant’s own doctors had diagnosed the heart condition which eventually caused decedent’s death. The defendant had also changed the lunch hour of the decedent’s only helper so that he was at lunch upon the arrival of the train that decedent was unloading when he suffered a heart attack and died.

The supreme court simply stated that defendant had constructive knowledge of the understaffing and decedent’s heart condition so that the additional instruction was not necessary. No showing was made in Wilmoth that a safety rule had been violated. On the facts in Wilmoth, defendant had not only constructive knowledge but actual knowledge of an unreasonably dangerous condition. Where the defendant has such actual knowledge, the additional instruction is unnecessary even without showing a safety rule violation. Id. Wilmoth is also authority for the principle that where substantial evidence is presented that defendant had constructive knowledge of a negligently existing condition, the additional paragraph can be omitted, even without a showing of safety rule violation. Id.

We find in this case that the evidence was sufficient to show that defendant had actual notice of the condition or that at the very least the evidence was substantial enough to show constructive knowledge. The plaintiff testified that he had reported the condition of the switch to his foreman five days before the injury. Another witness also testified that the switch was hard to throw before the accident and that he reported it to his foreman, although he was unable to state for how long the condition existed or when he reported it. The switch was inspected right after the accident, and the inspecting foreman testified it was hard to throw. Knowledge of a defendant’s employee is usually knowledge of the defendant. Wiser v. Missouri Pacific R.R. Co., 301 S.W.2d 37, 41 (Mo.1957). The uncontradicted evidence was that the difficulty with the switch had been reported to supervisory personnel of defendant prior to August 19, 1979, therefore, the trial judge committed no error in not including the additional provision in his instructions.

II.

The railroad next asserts that the court erred in its instruction No. 19 which was derived from M.A.I. Third 4.01. The judge instructed the jury as follows:

If you find the issues in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe he sustained [and is reasonably certain to sustain in the future] as a result of throwing a switch August 19, 1979 mentioned in the evidence. Any award you make is not subject to income tax.

Defendant asserts that the court erred in including the bracketed segment in its instruction. The notes on use on this point provide that the segment at issue should be added if supported by the evidence. The railroad argues that the evidence was not sufficient to support a submission for future damages since the consequences of an injury must be shown with reasonable certainty before the issue can be submitted to the jury. Zoeller v. Terminal R.R. Ass’n of St. Louis, 407 S.W.2d 73 (Mo.App.1966).

In essence, defendant contends that plaintiff did not show with reasonable certainty that any possible future damages suffered by Mr. Foltz would result from the August 19th injury. Substantial evidence was adduced to show with reasonable certainty that Mr. Foltz will experience pain and suffering in the future, but the issue here is whether sufficient evidence was presented to attribute that future damage to the cause of action for which Mr. Foltz recovered. The answer depends upon how much evidence is required before an issue of future pain and suffering can be submitted to the jury in a FELA case. Our decision here is controlled by the fact that this is a FELA case, and the strong preference in such a case is for the jury to determine all factual issues where the jury can reasonably draw the particular inference or conclusion submitted to it. Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 110, 80 S.Ct. 173, 175, 4 L.Ed.2d 142 (1959); Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957).

At trial, plaintiff presented ample evidence that he has a back condition that was at least in part caused or aggravated by the four injuries for which he sought recovery. Also, ample evidence was adduced that the condition would persist for some time in the future. The problem for the plaintiff stems from the fact that he had four injuries which could have caused or contributed to his back problem, he recovered on only one, and none of the evidence attributed his problem solely to that particular occurrence. In addition, conflicting evidence indicated that plaintiff’s problem existed even before the first of the four injuries.

In FELA cases, decisions of the United States Supreme Court are controlling when applicable to an issue. See e.g. Wehrli v. Wabash R.R. Co., 315 S.W.2d 765, 769 (Mo.1958). The Supreme Court’s decision in Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142 (1959), applies directly to the facts of this case and determines our decision.

Sentilles concerned a negligence action brought by a seaman under the Jones Act, 46 U.S.C. § 688. The Jones Act by its terms, and as construed by a line of Supreme Court decisions, incorporates the rights and liabilities found in FELA. 46 U.S.C. § 688; Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958); Cox v. Roth, 348 U.S. 207, 209, 75 S.Ct. 242, 243, 99 L.Ed. 260 (1955). Therefore, cases construing either act are authority for the construction of the corresponding act. Greenhaw v. Pacific-Atlantic S.S. Co., 190 Or. 182, 224 P.2d 918, 922 (1950); See Cox v. Roth, supra; Kernan v. American Dredging Co., supra; Mitchell v. Trawler Racer, Inc., supra.

In Sentilles, the plaintiff sued for the aggravation of a latent tubercular condition which he alleged was caused by a fall incurred during his employment. A doctor who testified for the plaintiff stated that an acute dissemination of tuberculosis “might” be a consequence of the fall. Id. 80 S.Ct. at 175. Two other expert witnesses for the plaintiff testified that the accident most likely or probably aggravated the condition. The Court reversed the circuit court’s decision that the evidence was not sufficient to support a jury verdict in favor of plaintiff. The Court held as follows (and we feel it important to quote this part of the decision at length):

The jury’s power to draw the inference that the aggravation of petitioner’s tubercular condition, evident so shortly after the accident, was in fact caused by that accident, was not impaired by the failure of any medical witness to testify that it was in fact the cause. Neither can it be impaired by the lack of medical unanimity as to the respective likelihood of the potential causes of the aggravation, or by the fact that other potential causes of the aggravation existed and were not conclusively negated by the proofs. The matter does not turn on the use of a particular form of words by the physicians in giving their testimony. The members of the jury, not the medical witnesses, were sworn to make a legal determination of the question of causation. They were entitled to take all the circumstances, including the medical testimony into consideration. Though this case involves a medical issue, it is no exception to the admonition that, “It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. * * * The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. * * * ” (Footnotes and citations omitted.)

In our case, without doubt, plaintiff has a back problem and ample evidence supports a finding that the incident of August 19 aggravated that condition. In Sentilles, the plaintiff’s condition was already extant and evidence of the aggravation of that condition was sufficient to make a jury question on causation. The amount awarded by the jury was substantially less than the amount of plaintiff’s prayer. The jury could have reasonably drawn the conclusion that $190,000 represented the amount of future pain and suffering due to the particular occurrence for which plaintiff won a verdict. Also evidence was introduced to show that the plaintiff may not be able to do manual labor if the pain continues. Therefore, following Sentilles, we conclude that the evidence was sufficient to submit the issue to the jury.

Defendant also argues that the jury’s verdict on this issue was the result of conjecture and speculation. As explained in Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946), a degree of conjecture and speculation in a jury’s decision in a FELA case is not fatal. The court there said:

It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.

Two Missouri cases lend general support for our decision in this case. The injury need not be shown to be permanent to justify the instruction. Chaussard v. Kansas City Southern R. Co., 536 S.W.2d 822, 828 (Mo.App.1976). Evidence of the long continuance of conditions existing at trial is sufficient to justify the instruction, and the evidence may come solely from the plaintiff with medical corroboration. Jones v. Allen, 473 S.W.2d 763, 766 (Mo.App.1971). To the extent that the decision in Zoeller v. Terminal Railroad Ass’n of St. Louis, 407 S.W.2d 73, 77 (Mo.App.1966), seems to require a different result, we note that in the Zoeller opinion no mention is made of a controlling United States Supreme Court case. For that reason we find that Zoeller does not control in this particular fact situation.

III.

The railroad’s next point on appeal is that the trial court erred in not granting its motion for a new trial or a remittitur on the ground that the verdict was excessive, and not supported by the evidence. Defendant points out that plaintiff only lost $1,900 in wages as a result of the August 19 occurrence, and all medical expenses were paid by insurance.

First, we note that a distinction is apparent between a verdict which is merely excessive and one so grossly excessive as to indicate jury bias and prejudice in the award. Skadal v. Brown, 351 S.W.2d 684, 689-90 (Mo.1961). Where the verdict is merely excessive, indicating an honest mistake by the jury in weighing the evidence in reference to the nature and extent of the injury, it can be corrected by remit-titur without a new trial. Id. Where the verdict is so excessive as to indicate bias and prejudice, however, the entire verdict is invalidated “not only as to the amount of the award, but also as to the determination of liability, and cannot properly be corrected by a remittitur ..., but requires that the verdict in entirety be set aside” and a new trial be granted. Id. at 690. The mere size of the verdict alone is not enough to show bias and prejudice; some error committed during the course of the trial, revealed by the record, must point to jury bias and prejudice. Id. Defendant points to no such error in the record, and relies only upon the size of the verdict for its argument; our reading of the record does not reveal this type of error. Therefore, a new trial on this point is not warranted.

The appropriate remedy for a merely excessive verdict is to grant a remitittur. Id. In a recent case, the Missouri Supreme Court in discussing remittitur said:

The day is past when this Court and the courts of appeals engage in close scrutiny of the amounts awarded by juries for personal injuries. We rely on the trial judge. Judge Tillman called for briefing on the amounts awarded in comparable cases, and then allowed the verdict to stand. We do not believe that we should supersede his judgment. We do not disclaim our authority, or that of the courts of appeals, to give attention to the size of verdicts, or to order remittiturs if persuaded that there had been a clear abuse of discretion. There may be cases in which the award is so far out of line, when compared to the tangible damages shown, that the appellate court would be impelled to take corrective action. This case is not one of them. (Footnote omitted.)

Fowler v. Park Corp., 673 S.W.2d 749, 758 (Mo.1984) (en banc).

In this case, we cannot say that the award is so far out of line with the tangible damages shown to require corrective action. Mr. Foltz testified to the continuing pain that he is suffering. He stated that it adversely affects his work, his ability to sleep, to even sit up, and at times prevents him from undressing. He also testified that the pain prevents or interrupts his enjoyment of his leisure time activities. Medical testimony was received that the pain will continue in the future and that it may eventually prevent him from doing all manual labor. If Mr. Foltz is eventually unable to do any manual labor, he seems to have no other employment possibilities or skills. We have already held that the jury’s award of damages for future pain and suffering in this case was not unreasonable. In light of the evidence, we do not believe that the award is so out of line that we should supercede Judge Mauer’s judgment.

IV.

The railroad raises one final point: that the trial court was incorrect in overruling its motions for a directed verdict and judgment notwithstanding the verdict because there was not sufficient evidence to submit the ease to the jury. It cites no authority for this point and does not even make the effort to brief an argument. This is certainly not a case where authority or argument is not appropriate, and we find that this point is abandoned. Thummel v. King, 570 S.W.2d 679 (Mo.1978) (en banc). In addition, we find no merit to defendant’s point in light of the amount of evidence required to support submission of an issue to the jury in a FELA case. Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957).

For the foregoing reasons, we affirm the judgment.

All concur.