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STARK v. VANDERPOOL

No. WD31675.

613 S.W.2d 203 (1981)

Randy Allen STARK, Lee V. Stark and Ruby Stark, Plaintiffs-Respondents, v. Don VANDERPOOL, Defendant-Appellant.

Missouri Court of Appeals, Western District.

March 2, 1981.

Attorney(s) appearing for the Case

Wesner, Turley & Kempton, Inc., Mark T. Kempton, Sedalia, for defendant-appellant.

Robert E. Harris, Warrensburg, for plaintiffs-respondents.

Before DIXON, P. J., WASSERSTROM, C. J., and NUGENT, J.

DIXON, Judge.

A jury verdict for defendant was set aside and a new trial granted to the plaintiff. The trial court did so on the ground that defendant had argued, over objection, the contributory negligence of the plaintiff which was neither pleaded nor submitted.

The action of the trial court is reviewable only as an abuse of discretion. Penn v. Hartman, 525 S.W.2d 773, 775 (Mo.App. 1975).

Plaintiff Stark...

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