author: TOM J. STUBBS, Special Judge.

text:
    Marion B. ROBERTSON, Plaintiff-Appellant, v. Hazel Beck WEINHEIMER, Executrix of the Estate of Fred H. Beck, deceased, Defendant-Respondent.
    No. 52155.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.

      Manion & Hawk and James E. Hawk, Jr., and E. A. O’Rourke, St. Louis, for appellant.
    Robert E. Keaney, J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
   TOM J. STUBBS, Special Judge.

Plaintiff seeks to recover $75,000.00 in damages because of personal injury and damage to property alleged to have resulted from the collision of two motor vehicles in the intersection of Jamieson and Marquette Avenues in the City of St. Louis, Missouri. At the conclusion of the plaintiff’s evidence the trial court sustained defendant’s motion for directed verdict. The question presented by this appeal is the sufficiency of the competent evidence to make a jury issue with respect to decedent’s negligence. Fred H. Beck, driver of defendant vehicle died before this action was instituted.

Plaintiff was permitted to testify over timely objections, based upon the “Dead Man’s” statute (Section 491.010 RSMo 1959, V.A.M.S.) that before the collision he was driving his automobile south on Jamieson Avenue in the center of three lanes for southbound traffic and continued in this lane into the Jamieson and Marquette intersection (where the collision occurred). In view of the objections the testimony was inadmissible and it will not be considered in our determination of the sufficiency of the evidence.

Jamieson Avenue extends north and south and is approximately 60 feet wide, containing three southbound and three northbound lanes for moving traffic separated by a concrete divider. Marquette Avenue extends east and west and intersects Jamie-son. There are no traffic signs on Jamieson for the control of southbound vehicles, however there is a stop sign on Marquette for the control of westbound vehicles before they enter its intersection wtih Jamieson.

Patrolman Norbert Stuckenschneider of the City of St. Louis Police Department arrived at the accident intersection shortly after the accident had occurred on October 27, 1962 at about 9:50 a. m. He saw two automobiles “in the center of the street.” Both were damaged. He talked with the plaintiff and with Fred Beck.

In response to the officer’s questions, Mr. Beck said that he was westbound on Marquette and stopped at the intersection, glanced to his right and observed another car coming south on Jamieson. He said he thought he had enough time to cross the intersection and “continued on across and then he was involved in a collision in the intersection.” Mr. Beck identified the plaintiff as the driver of the other car. Mr. Beck estimated his speed at the time of the impact at 20 miles an hour. “The distance of the accident” when “first noticed by him” was 20 feet and his speed at that time was 20 miles per hour. We interpret this latter testimony to have been intended and was understood to mean that Mr. Beck first noticed the danger of collision when his car was 20 feet from the point of impact and that his speed then was 20 miles per hour.

Plaintiff sustained damage as a direct result of the collision.

The violation of pleaded and proved ordinances of the City of St. Louis forms the basis of plaintiff’s claim of actionable negligence. The Ordinances 46687 and 51234, as they apply here provide that “every driver” westbound on Marquette Avenue “shall stop” at the stop sign before entering the intersection of Jamieson and Marquette and shall “yield the right of way to drivers” on Jamieson Avenue “and shall not proceed through the intersection or into” Jamieson Avenue “until safe to do so.”

It is our view that a trial jury could well believe from the evidence adduced by plaintiff that Mr. Beck, driving an automobile westbound on Marquette brought it to a stop at the stop sign as commanded by the ordinance, saw the plaintiff’s car approaching from the north, and then in direct violation of the ordinance failed to yield the right of way to plaintiff and drove into Jamieson Avenue and attempted to proceed through the intersection when it was not safe to do so and was thus negligent. Mr. Beck saw an approaching car and a fair inference from the evidence is that it was the plaintiff’s automobile he saw. A collision did occur in the intersection. The fact of the collision demonstrates rather conclusively that it was not safe for Mr. Beck to drive his car into the intersection when he did.

In Herr v. Ruprecht, Mo.Sup., 331 S.W.2d 642 it is said:

“Defendant’s statutory duty extended beyond stopping at the entrance to the intersection and giving preference to vehicles already in it. She was also required to yield the right of way to vehicles approaching the intersection so closely on the through highway as to constitute an immediate hazard. And defendant’s duty to ‘yield the right of way’ existed not merely at the entrance and while she was stopped, but it continued with her into the intersection * *

Defendant says that Herr v. Ruprecht, supra, and similar appellate authority are not controlling here because defendant’s duty in those cases was measured by Section 304.021 (4), RSMo 1959, V.A.M.S. relating to the construction of the phrase “an immediate hazard.” If the ordinances we are concerned with here impose any different duty than Section 304.021 (4) supra, they impose a greater rather than lesser duty upon the defendant. The ordinance simply prohibits entry into the intersection until “it is safe to do so.”

In our view the precise place in the intersection where the collision occurred is of no consequence in determining the issue presented here. Stopping distances are not involved.

The judgment is reversed and the cause is remanded.

All of the Judges concur.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    Helen RECKERT, Appellant, v. ROCO PETROLEUM CORPORATION, a Corporation, and Otto Evans, Respondents.
    No. 51720.
    Supreme Court of Missouri, Division No. 1.
    Dec. 30, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Peb. 13, 1967.

      James F. Koester, St. Louis, for plaintiff-appellant.
    F. X. Cleary, Paul S. Brown, J. C. Jaeck-el, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for Roco Petroleum Corporation, respondent.
   HOUSER, Commissioner.

Death action by Helen Reckert, widow of William, an employee at a gasoline filling station burned to death when gasoline escaping from the tank of a station wagon on a hydraulic grease rack caught fire and exploded.

Standard Oil Company, allegedly the owner of the filling station, Roco Petroleum Corporation, lessee, and Otto Evans, sublessee, were originally named as defendants. Standard was dismissed. The jury exonerated Evans and returned a verdict for $25,000 against Roco. A new trial was granted Roco on the ground that the court erred in giving Instruction No. 2, and plaintiff appealed.

The first question is whether, considering the evidence in the light most favorable to plaintiff, plaintiff made a submissible case of negligence against Roco.

The written lease between Roco as lessor and Evans as lessee covered fixtures, equipment and appliances. The rental was not only for the use and enjoyment of the real estate and buildings but also was specified to be for the use of the equipment. Under the lease Evans was to handle Roco’s products exclusively. Lessee Evans was bound to keep the equipment in repair and lessor had a right to inspect the premises to insure lessee’s performance of this obligation. In the writing lessee acknowledged that he had examined and knew the condition of the equipment and appliances and that they were received in good order and repair. The lease provided that lessor was to be exonerated and indemnified against liability arising out of the condition, use and operation of the property and premises. No provision of the lease was to be construed as reserving to lessor any right to exercise any control over the business or operation or to direct how it should be conducted, “it being understood and agreed that the entire control and direction of such activities shall be and remain with the Lessee.” Lessee was to have no authority to employ any persons or agents for lessor and lessee was not to be deemed to be the employee of lessor. A separate loaned equipment agreement executed between the same parties at the same time contained an acknowledgment by Evans that he had in his possession the hydraulic grease rack and granted him the right to use it. This agreement also contained an indemnification clause holding Roco harmless as against any liability arising out of injury to persons caused by or resulting from the condition or use of the equipment, whether caused by improper construction or negligence.

The grease rack consisted of two parallel I-beams joined at the middle, attached to a hydraulic piston capable of raising an automobile. When the rack was in a “down” position the beams rested on the floor. An automobile would be “run on” with its wheels on each side of the I-beams. By turning a valve compressed air would raise the rack until it came in contact with the front axle and rear axle housing. The front axle would rest on stationary pieces of metal attached to the I-beams. The rear axle housing would rest on flanges or dogs.” These dogs were moveable and could be adjusted to accommodate automobiles of differing lengths by sliding them along the I-beams. When properly positioned the automobile would be lifted to the desired height for servicing.

Here is a picture of one of the I-beams, showing a flange or “dog” in upright or vertical position:

The dogs would be turned down in a horizontal position when an automobile, straddling the beams, would be driven into position over the rack. The filling station attendant would get down on his knees and by the use of an attached rod or handle would slide the dogs along the beams to the back axle housing. The dogs would then be turned upright in a vertical position so that when the grease rack was elevated the circular cut-out portions of the top part of the dogs would accommodate or fit around the bottom of the rear axle housing, thus providing support for the automobile as it was lifted.

This accident occurred in March, 1964, during Evans’ operation of the filling station. Evans’ predecessor as lessee was Hubert Parks. Parks testified that often the dogs would fall over to the side after being placed in position and before the rack was lifted. In November, 1963, during Parks operation, there was an accident involving this same grease rack. On that previous occasion the tank of a 1956 model Chevrolet station wagon was punctured. Parks testified as follows: “ * * * I got the dogs set and went to the valve to turn the air to lift it and while I was doing that one of the dogs fell over and * * * let the car come down and left the one dog that was standing up puncture the tank, and all the gas escaped from it.” It was not the dog that fell over that punctured the tank; it was “[t]he one on the other side.” The inquiry continued: “Q Did you report that back to Roco Petroleum, their employee, or agent? A Mr. Metze, yes. Q Would you tell the Jury whether or not you told him that you had had that happen, that it punctured a gas tank? A I certainly did.” (Our emphasis.) Roco’s supervisor told Parks that Roco would remedy the situation “as soon as they could,” but that they were so busy installing new stations that he did not know when it could be done. When Evans commenced operating the station no one from Roco showed Evans how to operate the rack. Evans found that the rack was damaging the front end of “our modern automobiles.” He complained of this to two different officials of Roco, stating that the rack “was insufficient for the new model automobiles,” and several times requested that Roco install a new rack. These complaints were made about 60 days before the accident happened. The only difficulty Evans experienced with the rack from the time he leased the station in January until the accident in March related to the inefficiency of the rack in causing misalignment of the front wheels of automobiles placed thereon. Apparently he had no experience with the dogs falling. He testified that the dogs “were doing what they were supposed to do.” It was not until after the accident in question that Parks told Evans about the previous incident in which the gasoline tank of a Chevrolet station wagon had been punctured. Notwithstanding the two tenants had requested that the rack be replaced Roco did nothing; did not undertake to repair the dogs, change, remodel or replace the rack, and did not send anyone to make an inspection of the rack. Roco, however, did make some repairs of the building and equipment, repaired the furnace and replaced a broken pane of glass in the overhead door.

On the day in question, during Evans’ operation of the station, the former tenant Parks drove his 1957 Chevrolet station wagon into the station and onto the grease rack to have work done on his master brake cylinder. Evans got down on his knees and slid the dogs forward to place them under the axle housing. The top cut-out of the dogs accommodated cars having 15-inch wheels. The lower cut-out was used in the case of cars having 14-inch wheels. In positioning the dogs for cars with 15-inch wheels the operators had to be careful to place the dog at the right place so that when the rack was lifted the dogs would come in contact with the axle housing, but in positioning dogs for cars with 14-inch wheels the operator pushed the dogs forward until the dog came in contact with the axle housing. When that point was reached the operator knew the position was right because the rear of the dog protruded above the bottom of the axle housing, and this prevented the dog from being pushed any farther forward. Thus the housings of automobiles with 14-inch wheels always rested in the front cut-out and those of 15-inch-wheel automobiles rested in the back cut-out of the dogs. The back part of the top extended back 5½ inches from the center of the dogs. In the case of some automobiles, particularly 1956 and 1957 Chevrolet station wagons, holes would be punched in the gasoline tanks when they were lifted, regardless of how carefully the dogs were positioned, because of the manner in which the rack was designed and had to be used. This was due to the fact that in the construction of those models the gas tank is located within 5 inches of the dog. These models have 14-inch wheels, which meant that their rear axle housings would rest in the front cut-outs. This left 5½ inches or so of metal extending backwards from the housing, so that when the lift was pushed upwards the back top portion of the dogs would puncture the gas tank. The dogs were properly positioned and used the way they were intended to be used. Evans knew before the upward movement began that the dogs were going to come in contact with the axle housing “in the cutaway” but he did not know where the dogs were in relationship to the gas tank, because the vision of one looking underneath was obstructed by the spare tire carrier. After he positioned the dogs he raised the lift. The top portion of one of the dogs punctured the gasoline tank. Gasoline ran out of the hole in the tank onto the floor of the filling station. Evans’ employee William Reckert was working underneath a car next to the grease rack. The gasoline caught fire from a flame in a burner in the station and there was an explosion. In the holocaust Reckert received fatal burns.

In Paragraph 6(a) of the petition defendants were charged with operating the grease rack at a time when they knew or in the exercise of ordinary care could have known that the rack was defective and as a result an automobile might be caused to shift, slide or fall and thereby creating a dangerous and hazardous condition and situation to persons in the immediate area.

In Paragraph 6(e) of the petition defendants were charged with maintaining and continuing to use a dangerously constructed grease rack not reasonably safe for use with modern automobiles, including the one in question, in that using it as intended there was a reasonable probability or likelihood that it would puncture a gasoline tank and thereby create a situation of danger, and in failing to warn plaintiff of the likelihood of danger.

The negligent breach of duty charged against the lessor relates to a piece of equipment normally used and found in gasoline filling stations. The one to whom the duty is claimed to have been owed was an employee of the lessee who operated the filling station; one whom lessor could reasonably expect to be and work in the vicinity of the grease rack.

The defense is that lessor owed the employee no duty greater than that owed the lessee; that this is a landlord and tenant relationship under which lessor owed lessee no duty except on proof of a latent defect known to lessor at the time of the letting, not disclosed to lessee at the time of the letting and not discoverable by lessee in the exercise of ordinary care; that the grease rack and its parts were open, obvious and in plain view at all times and that there was no latent defect; that no act or omission of Roco caused the accident; that whatever liability there was rested upon lessee and not lessor; that this is not a bailment case, but if it is there is nevertheless rio liability on Roco as bailor because the condition of the rack and its parts was open and obvious to the bailee; that plaintiff may not rely upon the theory that the rack was inherently dangerous because she did not proceed on that theory below.

The relationship between Roco and Evans was that of landlord and tenant, Elbers v. Standard Oil Co., 331 Ill.App. 207, 72 N.E.2d 874 [4], and Roco’s liability in this case is governed by the principles of the law of landlord and tenant. Employees of a tenant are on the leased premises in the right of the tenant and not as licensees or invitees of the landlord. The duties and liabilities of a landlord to those who enter the leased premises under the tenant’s title are the same as those owed to the tenant. A tenant’s employees have no greater rights against the landlord than the tenant himself. Darlington v. Railway Exchange Bldg., Inc., 353 Mo. 569, 183 S.W.2d 101; Bender v. Weber, 250 Mo. 551, 157 S.W. 570, 46 L.R.A.,N.S., 121; Burks v. Buckmiller, Mo.App., 349 S.W.2d 409; 32 Am. Jur. Landlord & Tenant § 665.

The general rule is that the landlord is not liable to the tenant or to those on the premises under the tenant’s title for injuries caused by a dangerous condition, whether natural or artificial, which existed at the time the tenant took possession under the lease. Warner v. Fry, 360 Mo. 496, 228 S.W.2d 729; Restatement of the Law of Torts, 2d, § 356; 32 Am Jur. Landlord & Tenant § 665. This general rule is subject to an exception where at the time the lease is executed there is a dangerous condition of the premises involving unreasonable risk of physical harm to persons on the premises, which is known to the landlord and not known to the tenant and not discoverable by the tenant in the exercise of ordinary care. In such case there is a duty on the landlord to disclose to the tenant the existence of the dangerous condition and he is liable to the tenant or the tenant’s invitees for injuries or death resulting from such condition if the landlord fails to disclose them to the tenant or conceals their presence from the tenant. Begley v. Adaber Realty & Inv. Co., Mo.Sup., 358 S.W.2d 785, 791; Roach v. Herz-Oakes Candy Co., 357 Mo. 1236, 212 S.W.2d 758; Bartlett v. Taylor, 351 Mo. 1060, 174 S.W.2d 844; Underwood v. Moloney, Mo.App., 397 S.W.2d 18; Burton v. Rothschild, 351 Mo. 562, 173 S.W.2d 681; Coates v. Dewoskin, Mo.App., 379 S.W.2d 146; Flournoy v. Kuhn, Mo. App., 378 S. W.2d 264; Grimmeissen v. Walgreen Drug Stores, Mo.App., 229 S.W.2d 593; 32 Am.Jur. Landlord & Tenant § 671, p. 539; 52 C.J.S. Landlord and Tenant § 417 a. (3).

Actual knowledge on the part of the landlord of the dangerous condition is not necessary to make a case under this exception. It is sufficient that the landlord “had knowledge of facts from which he ought to have known, or will be presumed to have known,” of the defect, Meade v. Montrose, 173 Mo.App. 722, 160 S.W. 11, or, according to the Restatement of the Law of Torts, 2d, § 358, that the landlord “knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.” The rule is thus stated in “Tort Liability of a Landlord,” by Hark-rider, 26 Mich.Law Review 260, 268: “The landlord, as a rule, need not, before leasing the premises, look for defects therein. But if he has knowledge of facts that would lead a reasonable man to suspect that defects actually exist, he should disclose such facts to the prospective tenant. If he fails to do so he will be charged with knowledge of what, a reasonable inspection would have disclosed. To impose any further obligation upon him would render him to a great extent an insurer against concealed defects and dangers. On the other hand he cannot close his eyes to facts that would lead reasonable men to act.” Prosser says that it is enough that the landlord is “informed of facts from which a reasonable man would conclude that there is danger.” Prosser on Torts, 3rd ed., § 63, p. 413.

Applying these rules to the facts of this case, lessor Roco had actual knowledge, prior to the letting to Evans, that there was a dangerous condition of the grease rack, in that the gasoline tank of a 1956 Chevrolet station wagon had been punctured when it set .led down onto an upright dog, thereby discharging its gasoline into the building. Actual knowledge of the defective condition of the grease rack which permitted this to happen was actual knowledge of a fact which a jury reasonably could find would lead the managing agents of the lessor to suspect that the grease rack had inherently dangerous characteristics, thereby requiring the lessor to “exercise reasonable diligence to satisfy himself of their nonexistence before leasing, without mentioning the matter to his tenant.” Meade v. Montrose, supra, 160 S.W. 1. c. 13. Roco was engaged in the business of leasing numerous filling stations in which its products were exclusively sold. As an experienced lessor of filling stations, having a commercial interest in the provision of filling station equipment which the public was invited to use and which Roco knew its tenant and his employees would be using frequently, Roco should have appreciated the danger attending the use of hydraulic grease racks. A jury might well have found that if Roco had made a reasonably diligent investigation when the incident occurred in November, 1963 it would have discovered that the gasoline tanks of station wagons of this make and vintage were so located that dogs on this type of rack would puncture them when lifted. In any event, a jury could reasonably find that Roco, as an experienced lessor of this equipment, with a commercial interest in supplying it, might reasonably have foreseen that some type of injury might occur to Evans or his employees as a result of the continued use of this grease rack. The fact that a dog fell over on the previous occasion does not relieve Roco of liability because that fact could be found coincidental and not a causative factor, in view of the testimony that it was the upright remaining dog that punctured the tank. Liability does not depend upon whether a defendant reasonably and in the exercise of ordinary care could have foreseen or ought to have foreseen the very injury complained of, or “the precise manner in which the injury occurred,” but a defendant may be held liable for any injury which, after the casualty, appears to have been the natural and probable consequence of his act or omission, if he might reasonably have anticipated that injury of some kind would result. Miller v. Brunson Const. Co., Mo.Sup., 250 S.W.2d 958, 960 [4]; Boyd v. Terminal R. Assoc. of St. Louis, Mo.Sup., 289 S.W.2d 33, 37 [3], 58 A.L.R.2d 1222; McLeod v. Linde Air Products Co., 318 Mo. 397, 1 S.W.2d 122.

Accordingly, we are of the opinion that this case comes within the exception; that a submissible case of negligence was made by showing that Roco was in the business of leasing numerous filling stations for the exclusive sale of its products; that during the term of the preceding lease Roco’s supervisors were informed that a 1956 Chevrolet station wagon had its tank punctured by reason of an accident on this grease rack; that Roco’s supervisors were advised by the tenant of other shortcomings in the grease rack and were requested many times to replace it; that Roco knew or had reason to know that there was a concealed potential danger in the operation of the rack, and realized or should have realized that there were risks involved in its use; that this knowledge was communicated to Roco’s supervisors more than sixty days before the accident in March, 1964; that nevertheless Roco leased to Evans and supplied him with a grease rack so constructed and constituted that even when used carefully and in the manner intended gasoline tanks on certain types of automobiles lifted thereon were likely to be punctured, thereby releasing gasoline, a combustible substance, with consequent danger of fire and explosion ; that Roco did not warn Evans of the dangers involved or disclose the existence of the dangerous condition; that Evans did not know or have reason to know of the dangerous characteristics of the rack; that the dangerous condition was of such a nature that it would not be known to lessee Evans by an inspection of the rack, and would not be discoverable by him in the exercise of ordinary care; that Roco permitted the continued use under the lease of this mechanism with a dangerous potential,- and that plaintiff’s decedent, lawfully on the premises in the right of the lessee, received fatal burns as a result of exposure to this situation of danger.

Roco argues that there is nothing to show that there was any latent defect or other defect in the grease rack; that it was open, obvious, and the rails or dogs were in plain view; that Evans stated in writing that he had examined the lift, found it in good order and repair and testified that he was familiar with its operation and had used it many times prior to the accident. It is true that there was no latent defect in the conventional sense of the term; that is, there was no hidden crack, fault, or vice existing in the material itself, not discoverable by mere observation or inspection. There was, however, a latent fact or characteristic about this rack which visual inspection by a person of ordinary education would not have revealed, but which, according to the evidence, involved a certain danger. Evans, the tenant, could not have known of this dangerous condition except by receiving the information from others or actual experience. Under these circumstances Evans’ execution of the lease acknowledging that he had examined the lift and found it in good order and repair would not keep plaintiff from invoking the undisclosed dangerous condition exception.

The next question is whether the court erred in granting Roco a new trial for error in giving Instruction No. 2, which follows:

“Your verdict must be for plaintiff and against defendant Roco Petroleum Company if you believe:
“First, plaintiff was the wife of deceased, William Reckert, and
“Second, defendant Roco Petroleum Company leased the service station with a grease rack lift therein to defendant Otto Evans, and
“Third, that said grease rack lift was dangerous for use on some modern day automobiles, including the automobile in question, and
“Fourth, defendant Roco Petroleum Company knew or should have known of such danger, and
“Fifth, that defendant Roco Petroleum Company supplied and provided for use, said grease rack lift used by defendant lessee, Otto Evans, which caused a hole or holes to be punctured into the gas tank of the automobile in question, and
“Sixth, that defendant Roco Petroleum Company was thereby negligent, and
“Seventh, that as a direct result of such negligence William Reckert died.”

Instruction No. 2 unnecessarily deviates from MAI No. 26.01, contains modifications not tailored to fit the facts in this case, and omits essential elements. The court properly ruled that it committed reversible error in giving this instruction. In resubmitting the case MAI No. 26.01 should be given, modified however to require that the jury believe the existence of the following essential elements: that the grease rack was so constructed and constituted that it was likely to puncture gasoline tanks of 1956 and 1957 Chevrolet station wagons and was thereby dangerous to persons in the vicinity of its probable use while it was being used in the manner and for the purpose intended; that lessor knew or by using ordinary care could have known of the dangerous condition; that lessor had reason to expect that lessee Evans would not discover the dangerous condition or realize the risks involved, and that lessor failed to disclose the dangerous condition to lessee Evans.

The order granting a new trial is affirmed and the cause is remanded.

WELBORN, C., dissents.

HIGGINS, C., concurs.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

HENLEY and HYDE, JJ., and STORCKMAN, Alt. J., concur.

HOLMAN, P. J., not sitting.


author: PRITCHARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Elmer SMITH, Appellant.
    No. 52039.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.
    Norman H. Anderson, Atty. Gen., Brick P. Starts, III, Asst. Atty. Gen., Jefferson City, for respondent.
    Elmer Smith in pro. per.
   PRITCHARD, Commissioner.

This is a motion to vacate, under Criminal Rule 27.26, V.A.M.R., a judgment of conviction and a sentence of fifteen years imposed by a jury on June 24, 1960, for the crime of robbery in the first degree. Appellant argued his case before this court pro se. The trial court denied appellant’s motion to vacate on February 6, 1966, without an evidentiary hearing.

Appellant’s first point is that there was insufficient evidence to support and sustain a conviction for robbery. In this proceeding we do not examine the matter of sufficiency of the evidence, but only whether the “sentence was imposed in violation of the Constitution and laws of this State or the United States, or that the court imposing such sentence was without jurisdiction to do so, or that such sentence was in excess of the maximum sentence authorized by law or is otherwise subject to collateral attack, * * (Our emphasis.) Criminal Rule 27.26, V.A.M.R. The allegation, being one of error in the course of the trial, is one for direct appeal, and not for collateral attack under the rules. State v. Warren, Mo., 344 S.W.2d 85, 86; State v. Schaffer, Mo., 383 S.W.2d 698, 699; State v. Macon, Mo., 403 S.W.2d 630, 631. The point is overruled.

Secondly, appellant urges error in the denial of his request for appointment of counsel at his preliminary hearing “and thereby denied him of his right to confront and properly examine the state’s witnesses- and properly conduct his defense.” The Magistrate Court proceedings which are included in the transcript show that appellant and his co-defendant, Charles Smith, were before that court, were advised of their rights, and having seen and heard the charge in the affidavit, requested a preliminary hearing. The Magistrate Court record further shows that such preliminary hearing was held with appellant being present, and the court found that a felony had been committed and that there was reason to believe that appellant (and his co-defendant) might be guilty thereof. Appellant was then bound over to the circuit court to await its action. The transcript does not reflect a request for counsel at the preliminary hearing, and even if he did so request, it would not be error to deny it in the absence of some prejudice to defendant. The sole purpose of the magistrate court in preliminary hearings is to ascertain if a felony has been committed and that there is probable cause to believe that defendant committed it. State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314; State v. Richardson, Mo., 347 S.W.2d 165. We find nothing in the record (and appellant suggests nothing) that occurred in the Magistrate Court hearing that was prejudicial to appellant in his Circuit Court trial or that was used in the latter court. One witness, Leonard Marlow, whom appellant complains (under Point 11) was not put on the stand at his preliminary hearing “in violation of his right to confront and examine him,” testified at the Circuit Court trial wherein one of appellant’s appointed counsel (Mr. Robert L. Borberg) fully cross-examined him. The following cases in this state hold that a defendant is not deprived of his constitutional right to counsel even though not represented by such in the preliminary hearing where he has counsel prior to trial (as here): State v. Gagallarritti, Mo., 377 S.W.2d 298, 301 (distinguishing Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, where defendant lost the right to enter a plea of insanity under peculiar Alabama law; and White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, where defendant’s plea of guilty entered before the Magistrate was used against him at the trial) ; State v. Engberg, Mo., 391 S.W.2d 868, 870 [4] ; and State v. Tettamble, Mo., 394 S.W.2d 375, 382 [25, 26]. The state here gained nothing and the appellant lost nothing by reason of his having no counsel at the preliminary hearing. Gagallarritti, supra. His second point is overruled as is Point (11) relative to claimed error in the failure to put Marlow on the stand at appellant’s preliminary hearing.

There is no merit in Point (3) of appellant in which he alleged that the information was void “in that the jury did not find that the defendant was guilty as charged in the information.” The information is in usual form and follows the wording of the statute for first degree robbery under § 560.120, RSMo 1959, V.A.M.S. Point (4) contains the allegation that it does not refer to the information in its description of the offense. The points are inconsistent and insufficient to advise us exactly of what appellant complains, but we have examined the verdict which we find to be responsive in that the jury found appellant “guilty of robbery in the first degree with a dangerous and deadly weapon.”

Appellant in his Point (6) alleges that the information is void because it failed to state that he took Leonard Marlow’s automobile which violated his right to be informed of the specific crime with which he was charged. Pertinent parts of the information are: “[t]he defendants Charles Smith and Elmer Smith, acting jointly and together, with specific criminal intent willfully and unlawfully and feloniously in and upon one Leonard Marlow, did make an assault, by the use of a dangerous and deadly weapon, to-wit: .38 caliber Smith and Wesson pistol, loaded with gunpowder and metal bullets; and one 1957 four door whiie and green color Chevrolet motor vehicle, bearing Oklahoma License # 3^1090, being the property of said Leonard Marlow, and in the presence of the said Leonard Marlow, and against the will of the said Leonard Marlow, then and there by force and violence to the person of the said Leonard Marlow, feloniously did rob, steal, take and carry away, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Missouri.” It is seen that the information did charge that appellant took Mar-low’s automobile. Points (3), (4) and (6) are overruled.

Points (7), (8), (9) and (10) all relate to instructions to the jury which appellant claims are erroneous. Such allegations will not be considered in the collateral proceedings of a motion to vacate judgment and sentence, being allegations of trial errors only. State v. Childers, Mo., 328 S.W.2d 43; State v. McMillian, Mo., 383 S.W.2d 721.

By Point (12) appellant alleges that he was denied effective assistance of counsel at his trial in that his court-appointed attorneys had an interest in the case desiring a conviction. No fact is alleged of any basis of such interest, such as a property right, or even any kind of feeling toward appellant showing prejudice toward him in any way. In our examination of the transcript of the record of the trial we note that both of appellant’s appointed counsel-participated in the trial and exerted commendable efforts in his behalf. The fact that they may not have objected to testimony of Bill Miller, the Sheriff, as to statements made by appellant while in jail (tending to show commission of the crime charged) may have been a matter of trial strategy. The record indicates that a strong submissible case of appellant’s guilt was made by the state, and so is explained the lack of a motion for judgment of acquittal at the end of the case. Appellant further alleges that his counsel ill-advised him by telling him that if a motion for a new trial was filed and granted that defendant would probably get a lot more time on a new trial. What actually happened after the jury was excused is shown by the transcript :

“THE COURT: Let the record show that after the jury was excused, counsel for defendants have conferred with their clients and have a statement they would like to make at this time.
"MR. BORBERG: Both of the defendants, Elmer Smith and Charles Smith, have told me, as their attorney, just now that they want no more trials; that they don’t want me or my associate, Mr. Harrison, to file a motion for a new trial and request that we proceed and get it over with at this time.
“Is that correct, gentlemen?
“CHARLES SMITH: Yes.
“ELMER SMITH: Yes.
“MR. BORBERG: Let the record show that both Charles and Elmer Smith have answered ‘Yes’ to my question.

SENTENCE

“THE COURT: The Court will ask the two defendants, Elmer Smith and Charles Smith to come forward, please.

(Defendants approach the Bench)

“THE COURT: Mr. Charles Smith, you have heard the statement made by your counsel to the effect that you don’t desire to file a motion for a new trial. Do you realize that by not filing a motion for a new trial that the Court can, at this time, pronounce sentence upon you in accordance with the verdict of the jury?
“CHARLES SMITH: Yes, sir.
“THE COURT: And the same question is addressed to you, Elmer Smith. Do you so understand?
“ELMER SMITH: Yes, sir.
“THE COURT: Do either of you have any lawful reason why sentence should not now be pronounced upon you at this time?

(No audible response)

“THE COURT: Very well; there being no response, it will be the judgment and sentence of this Court that you, Charles Smith, having been found guilty by a jury in this court and the punishment having been set for a term of 10 years, be confined in such place of confinement as may be designated by the State Department of Correction, to whom you are committed.
“And you, Elmer Smith, having similarly been found guilty and your punishment having been assessed at a term of fifteen years, you will be confined for a period of fifteen years in such place of confinement as may be designated by the State Department of Correction, to whom you are committed.
“The Sheriff will be allowed two guards for the purpose of conveying the defendants to their place of confinement.”

If counsel thought that appellant would get “more time” on a new trial, there is nothing alleged to show that advice to that effect given appellant by his counsel with respect to filing a motion for new trial was ill-advised. The motion, records and files which we have before us show that appellant is entitled to no relief, was not entitled to a hearing below, and thus there was no abuse of discretion in the trial court in failing to appoint counsel for appellant for this appeal [Point (5) of appellant] .

The judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM:

The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Floyd Delorace POPE, Appellant.
    No. 51314.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, Gerald H. Johnson, Special Asst. Atty. Gen., Cape Girardeau, for respondent.
    No attorney for appellant.
   STOCKARD, Commissioner.

Appellant was found guilty by a jury of robbery in the first degree, and was sentenced by the court to imprisonment for fifteen years. That judgment was affirmed on appeal. State v. Pope, Mo., 364 S.W.2d 564. Appellant thereafter filed a motion pursuant to Criminal Rule 27.26, V.A.M.R., to vacate the judgment and sentence, and from the order of the trial court denying that motion without an evidentiary hearing he has appealed. After a previous opinion was handed down by this court on October 10, .1966, affirming the order of the trial court a rehearing was granted and the cause resubmitted.

Edward Dugan testified at the trial that in the early hours of December 14, 1961, appellant and another person assaulted him and took between $120 and $130 from him while he was in a vacant lot or yard at the end of a “dead end alley” off of Washington Street in the City of St. Louis. About two o’clock in the morning of December 17 appellant was arrested with two women in front of a cocktail lounge at 4458 Washington. He was not then arrested for this robbery. A short time later he was identified by Edward Dugan as the person who had robbed him three days earlier. At the time of his arrest he was wearing an earring with a white stone, and Mr. Dugan testified that the man who robbed him was wearing such an earring.

Appellant’s motion, apparently drafted pro se, is inartfully written. However, it can be ascertained therefrom that he contends (1) his “arrest without a warrant was an unconstitutional act, he was not arrested for the robbery charged,” and he was thereby deprived of his “right to build and combat the evidence which officers Casey and Janson coerced from Miss Irons;” (2) a diamond studded “ear screw” was wrongfully taken from him while under arrest and subsequently admitted into evidence; (3) the officers participating in the arrest “collaborated in giving perjured testimony;” and (4) Mr. Edward Dugan, the prosecuting witness, committed perjury.

Appellant filed a motion in the trial court and has renewed that motion in this court for the appointment of counsel to assist him in the preparation and presentation of his contentions in the trial court and on this appeal. He argues that counsel in this post-conviction proceeding is necessary to “bring out the hidden merits.” He cites many cases pertaining to the requirement that counsel be appointed at trial for an indigent accused. Those cases are not applicable here. Appellant was represented by counsel at his trial. In a recent case, State v. Washington, Mo., 399 S.W.2d 109, 112, this court held that “A motion to vacate and set aside a criminal conviction is in the nature of a civil procedure rather than a criminal prosecution and the defendant is not entitled to counsel as a matter of right solely by reason of indigency.” See also Long v. District Court of Iowa, 385 U.S. 192, 87 S. Ct. 362, 17 L.Ed.2d 290, where the issues included the refusal to appoint counsel and to furnish a free transcript to an indigent petitioner in a post-conviction proceeding. The Supreme Court granted certiorari “limited solely to the refusal to furnish petitioner, an indigent, with a transcript of the habeas corpus proceeding, for purpose of appeal.” The Supreme Court has not yet required the appointment of counsel in a post-conviction proceeding to vacate a sentence and judgment. There is no abuse of discretion in failing to appoint counsel to “bring out the hidden merits” in this post-conviction proceeding.

We turn now to appellant’s specific contentions in his motion. Appellant did not challenge the legality of his arrest at his trial, and the fact that appellant was not charged with robbery at the time of his original arrest constitutes no basis for challenging the validity of a subsequent conviction of robbery based upon a proper information. If appellant is lawfully held in confinement he is not wrongfully deprived of anything. However, in this case appellant asserts that he was deprived of an opportunity to “combat the evidence which Officers Casey and Janson coerced from Miss Irons.” The facts, as alleged by appellant in his motion are these: While in jail appellant was told by Miss Irons, another prisoner, that Officers Casey and Jansen had a man in their office who said that appellant and a woman, a Miss Johnson, had robbed him, and that if she, Miss Irons, wanted to “get off the hold-over and go home” she would have to make a statement that appellant and Miss Johnson had told her that they did rob the man. However, although appellant then alleges that Miss Irons “said she did” and was released, he alleges further that she “was never called to trial.” The transcript of appellant’s trial shows that Miss Irons was not a witness and no statement of hers was offered or received in evidence. Under no circumstance could the circumstances related by appellant constitute grounds for vacating his conviction.

Mr. Edward Dugan identified appellant as the one who robbed him, and as previously noted he testified that at the time appellant was wearing an earring in his left ear. The testimony also showed that at the time of his arrest he was wearing an earring, or what appellant calls an “ear screw.” Appellant alleges that while he was under arrest Officer Casey took from his ear “a diamond studded ear screw” and told him that it would be kept with the rest of his property, apparently for safe keeping. At the trial an earring or “ear screw” was identified as the one taken from appellant’s ear and it was admitted into evidence after appellant’s counsel, when asked if he had any objection, said “None whatever.” There obviously was no error in admitting the earring in evidence, but in any event such matters cannot be reached in an attack on the judgment and sentence in a post-conviction proceeding such as this. State v. King, Mo., 379 S.W.2d 522; State v. Engberg, Mo., 391 S.W.2d 868.

The remaining two contentions pertain to alleged perjured testimony and may be considered together. In the trial Mr. Du-gan testified that the robbery took place after he had driven his automobile south from Washington Street about seventy-five feet into an “alley.” He stated that the “alley” was about fifteen feet in width and extended along the building about fifty feet, and then entered into a lot or an area. It was after he had entered this lot or area and had started to turn his automobile around that the robbery took place. The “alley” did not extend through the lot or area but “dead ended” there. At one time Mr. Dugan referred to it as “a driveway, more or less.” Several times in his testimony Mr. Dugan said the alley or driveway was in the 4600 block of Washington, but he also located it as being a short distance east of the Hermitage Hotel and west of Newstead Street which would have placed it in the 4400 block. Appellant alleges that Mr. Dugan’s testimony about the alley constituted perjury because the sidewalk supervisor of the Department of Streets of the City of St. Louis has advised him by letter that there are “no north and south alleys on either the north or south sides of the 4400 block of Washington Boulevard.”

Appellant alleges that Officers Casey and Jansen “collaborated in giving perjured testimony” which is “unquestionably shown by the, testimony of Mr. Edward Dugan and that of both Officers Casey and Jansen.” In asserting what constituted perjury, reference is made only to the testimony of Mr. Dugan as above set out. At the trial Officers Casey and Jansen testified to the circumstances of appellant’s arrest and that at the time he was wearing an earring. Neither made any mention of the circumstances of the alleged robbery, and in the testimony of neither was there any mention whatever of an alley or of the place where the robbery took place. There is absolutely no factual basis for the con-clusionary allegations of perjury on the part of either Officer Casey or Officer Jansen, or that they “collaborated in giving perjured testimony.”

The term “alley” is commonly used to refer to a passageway that is not a street, avenue or boulevard. It is defined as “a narrow way designed for the special accommodation of the property it reaches.” Black’s Law Dictionary. It may but does not necessarily refer to a “public” way. In fact, in this case, Mr. Dugan referred to the passageway as an “alley” and also as “a driveway, more or less.” At no place did he refer to it as a “public” alley or describe it so as to infer that it was a public way. His description of it, that is, that it was fifteen feet in width, and that it extended about fifty feet along the length of the building and ended in a lot or area behind the building clearly indicated that it was not a public way. Assuming, as appellant contends, that there is no “public” alley extending south in the 4400 block of Washington, and that is all that the letter from the sidewalk supervisor says, no perjury is shown to exist in the testimony of Mr. Dugan. There is no contention that Mr. Dugan committed perjury when he testified, in effect, that the robbery occurred in a lot or area south of Washington Street reached by a narrow way. It is immaterial whether Mr. Dugan called that narrow way an “alley,” a “driveway,” or used some other term describing such a passageway, and certainly the use of the descriptive term “alley,” when perhaps under the facts a better descriptive term would have been a “driveway” or “private alley,” could not constitute perjury.

The motion of appellant, and the information submitted by him in support thereof, together with the files and records in the case conclusively demonstrate that he is not entitled to the relief sought, and the trial court did not err in denying his motion without an evidentiary hearing. See State v. Moreland, Mo., 351 S.W.2d 33; State v. Johnstone, Mo., 350 S.W.2d 774, certiorari denied 369 U.S. 877, 82 S.Ct. 1149, 8 L.Ed.2d 280; Martinez v. United States, 10 Cir., 344 F.2d 325; Thomas v. United States, 7 Cir., 308 F.2d 369.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM:

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Arthur A. MARTIN, Appellant.
    No. 52267.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Peter J. Grewach, Sp. Asst. Atty. Gen., Troy, for respondent.
    William E. Gladden, Houston, for appellant.
   STOCKARD, Commissioner.

Defendant was found guilty by a jury of the offenses of burglary and stealing and was sentenced to a term of two years for each offense. He has appealed from the ensuing judgment.

A complaint was filed against defendant on August 2, 1965, and his preliminary hearing was held on August 24 at which he was represented by employed counsel of his own selection. The information was filed in the Circuit Court of Texas County on October 8, 1965. The record does not show any continuances having been requested or granted. The case was set for trial on February 23, 1966, and at 9:30 o’clock in the morning of that day counsel for defendant stated to the court that he wished to withdraw as attorney for defendant because, although he represented defendant at the preliminary hearing and had been paid for that service, the defendant had not paid him a fee for representing him in the circuit court. He also stated that he had “tried to get the defendant in” so he could talk to him, and had asked him to “come in the latter part of last week, Monday, and I never saw the defendant until this morning.” The trial court then addressed the defendant and the following occurred:

“The Court: He said he is withdrawing as your attorney. Do you understand that?
“The Defendant: Yes.
“The Court: You’ll have to go to trial. You’ve had a long time and you’ve had Mr. Lay in your — as your attorney and he says you wouldn’t cooperate with him and didn’t pay him.
“The Defendant: Well, I didn’t have the money to pay.
“The Court: Well, you didn’t come in to see him about it, did you ?
“The Defendant: I called him yesterday evening.
“The Court: He says he’s been trying to get you to come in for a good, long while to go over this thing and make some arrangement about it and you never did show up.
“The Defendant: Well, I talked to him about two or three weeks ago.
“The Court: Well, you’ll have to go to trial. You’ve got some witnesses subpoenaed here.
“The Defendant: Well, Okay.
“The Court: * * * I guess we better call the jury in, Mr. Sheriff.”

The court then asked defendant if he understood the charge against him, and he replied that he did. At the trial the State offered the testimony of eight witnesses, five of whom were recalled, and the defendant offered the testimony of one witness and he testified himself. We note that not one objection to testimony was made, and the transcript reveals that defendant was extremely inept in cross-examining the State’s witnesses and in questioning his witness on direct.

Letters in the file of this Court indicate that defendant made arrangements with the attorney, who now represents him on this appeal by appointment, to file a motion for new trial. After that motion was overruled a notice of appeal was filed, and defendant’s motion to be permitted to appeal as a poor person was sustained. It appears from the transcript that defendant is a timber cutter by trade, who received a fifth grade education, and who is fifty years of age.

The first assignment of error in the motion for new trial, and the first point in defendant’s brief to this court challenges the validity of the trial on the ground that he was tried for a felony without the assistance of counsel.

It is obvious that employed counsel had intended to go to trial on the day the case was set if he had been paid his fee. He had had subpoenas issued for two witnesses and one of them was in the courtroom. No request for a continuance had been or was made. We note here the following provisions of Supreme Court Rule 4.44, V.A.M.R.: “The right of an attorney or counsel to withdraw from employment, once assumed, arises only from good cause. Even the desire or consent of the client is not always sufficient. The lawyer should not throw up the unfinished task to detriment of his client, except for reasons of honor or self-respect. If the client insists upon an unjust or immoral course in the conduct of his case, or if he persists over the attorney’s remonstrance in presenting frivolous defenses, or if he deliberately disregards an agreement or obligation as to fees or expenses, the lawyer may be warranted in withdrawing on due notice to the client, allowing him time to employ another lawyer. * * * ” Within the above limitations counsel was entitled to request permission to withdraw for the failure of defendant to pay the agreed fee for services. However, there is nothing in the record of this case to indicate that defendant had any notice whatever, earlier than 9:30 o’clock of the morning the case was set for trial, that his attorney intended to ask permission to withdraw. The reason given by defendant for not paying the fee of his employed counsel was that he did not have the money. While there was no investigation at that time of his ability to pay a fee, on May 13, 1966, the trial court authorized him to appeal as a poor person. The transcript discloses that defendant’s trial was started immediately upon withdrawal of the previously employed counsel, and that defendant was not represented by counsel.

Defendant was not afforded a reasonable time to attempt to employ other counsel. The record does not show that he was advised that if he was unable to employ counsel the court would upon request appoint counsel to represent him. “Our courts have universally held that a defendant charged with a serious crime has the right to the assistance of counsel and that, if he is unable to employ one, the court should appoint counsel; * * State v. Moreland, Mo., 396 S.W.2d 589, 594. The federal courts have enforced the right of a defendant charged with a serious crime to the assistance of counsel as a fundamental right guaranteed by the due process clause. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed. 2d 167; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158. The State argues on this appeal that defendant waived his right to counsel, by not requesting time to secure or to have counsel appointed. We agree that the right to counsel may be waived, if the waiver is voluntarily and understandingly made. State v. McDonald, Mo., 343 S.W.2d 68, 71; State v. Glenn, Mo., 317 S.W.2d 403. However, in this case it appears that defendant had only a fifth grade education, and his employment was that of a timber cutter. He was not charged as a second offender and there is nothing to indicate that he had ever been involved in a court proceeding before. His performance clearly established his incompetence to represent himself. The record does not justify a finding that the defendant voluntarily and intelligently waived counsel.

We conclude that by compelling defendant to go to trial without counsel immediately upon the withdrawal without notice of his employed counsel, under the circumstances revealed by the record, resulted in a denial of due process of law.

The judgment is reversed and the cause remanded.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    ST. LOUIS COUNTY WATER COMPANY, a Missouri Corporation, Appellant, v. STATE HIGHWAY COMMISSION of Missouri, Respondent.
    No. 51953.
    Supreme Court of Missouri, Division No. 1.
    Dec. 30, 1966.
    Motion for Rehearing or to Transfer to Court Bn Banc Denied Feb. 13, 1967.
    Opinion Modified on Court’s own Motion Feb. 13, 1967.

      Gerald K. Presberg, St. Louis, for plaintiff-appellant.
    Robert L. Hyder, Bruce A. Ring, Jefferson City, for respondent.
   HIGGINS, Commissioner.

Proceeding under Section 536.100 et seq., V.A.M.S., for judicial review of an order of the State Highway Commission, affirmed by the circuit court, directing St. Louis County Water Company to relocate certain of its facilities located in state highway right of way at a cost to the Company in excess of $15,000.

This is the second appeal in this matter, the first being reported at 386 S.W.2d 119; and, in order to provide background and continuity, much of the case as there stated is set out.

“Commission Project F-610(ll) was for the improvement of some 8200 feet of Lindbergh Boulevard (Route 66TR) in the vicinity of its intersection with Page Boulevard in St. Louis County. The plans called for elimination of a number of curves in Lindbergh, the construction of a cloverleaf interchange at the Page Boulevard intersection and an underpass under tracks of the Rock Island Railroad. The reconstructed highway was to consist of two 24-foot roadways, paved with concrete and separated by a medial strip, with stabilized shoulders.

“In 1947, pursuant to a permit issued by the commission, the company had installed a 20-inch water main in the highway right-of-way for more than 6 miles along Lindbergh, which included the area involved in Project F — 610(11). The permit called for the installation of the main 8 feet west of the west edge of Lindbergh Boulevard. This main is the principal facility involved in the proceeding under review.

“After conferring with water company representatives, the commission, on May 31, 1961, through its district engineer, issued an order approving plans for the location of the water company’s facilities in the improvement area. Of some 8200 feet of 20-inch line involved, some 2000 feet in locations not affected by the new construction were to remain in place. The company agreed to the relocation of some 2000 feet of the line situated in sites in which the grade of the existing roadway was to be changed, including the Page Boulevard and Rock Island underpasses. Some 4200 feet of the 20-inch line were to be abandoned and relocated, along with 580 feet of 8-inch line.

“The order, pursuant to Section 227.240, supra, notified the company that a hearing would be held on the commission’s proposal involving the company’s facilities. A hearing was held at which evidence was presented by representatives of the highway department and of the company. Following the hearing, the commission issued the order presently involved, requiring the abandonment of some 2775 feet of 20-inch line in three separate locations and approximately 300 feet of 8-inch line.

“The first location in which changes in the company’s facilities were ordered was in the vicinity of the intersection of Dorsett Road with Lindbergh. There the roadway was to be widened by the adding of new pavement on both sides of the existing pavement. The order called for the retirement of some 1275 feet of 20-inch main which would have been under the new pavement at distances, measured from the west edge of the pavement, of from 10 to 20 feet. It also called for the retirement of 300 feet of 8-inch main which would have been under the new pavement by a maximum of 20 feet and a minimum of 10 feet from its west edge.

“The second and third locations were in areas where curves in the existing road were straightened. In both the second and third relocation sites, the 20-inch main would have crossed the new roadway beneath new pavement at oblique angles which would have placed some 550 feet of main under the roadway in the second relocation site. In that site some 650 feet of 20-inch main were to be retired, consisting of the 550 feet which would have been under the pavement and 100 feet which would have been in the shoulder of the roadway. In the third site, 450 feet of 20-inch main which would have been beneath the new paved roadway and some 400 feet of the main which would have been in the shoulder of the new roadway were ordered retired or removed.

“The order submitted approved reloca-tions of the mains to be retired or removed. Generally, the relocations were near the edge of the right-of-way of the highway as improved. Where crossings of the new roadway were to be made to rejoin portions of the main left in use, the lines crossed the roadway at angles which made the portion of the line beneath the pavement approximately the same length as the width of the pavement at the point of crossing.

“By its final order, the commission found that the highway improvement involved the construction of a hard surface highway; that facilities of the company ordered relocated would be either covered with hard surface pavement or incorporated in the shoulders of the roadway; that some of the facilities, if left in place, would cross under the new paved roadway ‘on a sharp skew angle, thereby creating a crossing of considerable length; that other parts of the facilities, if let (sic) in place, will be under the shoulder of the roadway or under the pavement to varying extents; and that the presence of a part of said facilities will interfere with the proper and economical construction and maintenance of said highway and will impede the lawful traffic thereon after reconstructed * *

“ * * * On this appeal, the company first contends that the relocation order is unsupported by competent and substantial evidence upon the whole record and is arbitrary, capricious and unreasonable. The company contends further that the order of the commission is in excess of its authority and not authorized by law because it was based not upon the evidence adduced at the hearing but upon a previously adopted policy of the commission. Inasmuch as we conclude that this second contention is dispositive of this appeal, we turn to it.

“At the hearing, the commission placed in evidence a pamphlet entitled ‘A POLICY ON LOCATION OF UTILITY FACILITIES ON STATE HIGHWAYS.’ According to the pamphlet, the policy had been established by the Missouri State Highway Commission on October 14, 1958. The witness who identified the pamphlet stated that the provisions under portions of the policy statement dealing with ‘HIGH TYPE ROADS’ applied in this case. The portions which he pointed out as being applicable were as follows:

“ ‘II. HIGH TYPE ROADS.
“ ‘A. Existing Roadway Included in Final Improvement and Existing Utility Facilities on Present Right-Of-Way.
“ T. Relocate all parallel surface installations and parallel underground installations carrying pressure to near the new right-of-way lines.
“ ‘3. All underground mainline pipes under pressure crossing the roadway shall be encased from shoulder to shoulder of roadway as a minimum.’

“The statement of policy is prefaced as follows:

“ ‘The following policy is established for the location or relocation of utility facilities on the right-of-way of highways in the state highway system. Any location or relocation of utility facilities contrary to this policy is declared to be an interference with the construction or maintenance of state highways and their rights-of-way and is prohibited.’ * * *
“We deem it unnecessary here to set out in detail the controverted evidence presented at the hearing and concerning which no basic findings were made.”

The opinion then noted a portion of the evidence but, in respect to any consideration of same, proceeded:

“We do not deem it our proper function to decide, in this case, whether or not the commission could, on the basis of this and other evidence presented, have found basic facts to support its ultimate finding. ‘The Commission is the fact-finding body, and the Court examines the evidence not to make findings for the Commission but to ascertain whether its findings are properly supported.’ * *

The court then concluded:

“Support for the conclusion that the mere presence of the mains would constitute interference with the construction, maintenance and use of the new highway is found only in the commission’s declaration of policy to that effect. We, therefore, must conclude that, the commission having made no basic findings from the evidence adduced at the hearing, the commission’s ultimate finding was based upon the previously established policy, and not upon the evidence adduced at the hearing. As pointed out in Weinstein, supra (State ex rel. State Highway Commission v. Weinstein, Mo., 322 S. W.2d 778), such is not a proper basis for determination of the matter.
“Inasmuch as the commission made no findings pertaining to the issues properly determinative of this case, the matter should be remanded to the commission for such determination.
“Therefore, the. judgment of the circuit court affirming the commission’s order is reversed and the cause remanded to the circuit court with directions to remand to the commission for further proceedings in accordance with this opinion.”

Pursuant to the foregoing order of the Supreme Court, the Circuit Court of St. Louis County remanded the cause to the Commission for further proceedings, and thereafter the Commission entered its findings and order as per Order In The Matter Of The Relocation Of Water Distribution Facilities, Route 66TR, St. Louis County, Project F-610(ll). It was served on the Company September 30, 1965, and, after a history of the case, proceeded:

“The transcript of all evidence has been furnished to all members of the present Commission and, after said transcript being read and considered by each member of the present Commission, the Commission finds as follows:
“Certain water transportation and distribution facilities owned by the St. Louis County Water Company shown on the plans originally served upon said Company as Exhibit ‘A’ to the original notice dated May 31, 1961, are presently located within the right-of-way of a public State highway. The facilities of the Company are located within said right-of-way pursuant to the terms of a permit issued to said Company by the State Highway Commission on October 8, 1946. At the time of the original notice dated May 31, 1961, directed to the St. Louis County Water Company, the Commission had scheduled Route 66TR, St. Louis County, Project F-610(ll), for reconstruction in the immediate future thereafter. The plans of the Commission provided for hard surfacing of the reconstructed highway. The facilities of the St. Louis County Water Company which Commission’s engineer had directed to be relocated, if left in place, would, after the reconstruction of the highway, be either covered with hard surface pavement or underneath the shoulders of the roadway. Some of said facilities, if left in place, are so located in reference to the proposed highway improvement that they would cross under the pavement on a sharp skew angle, thereby creating a crossing of considerable length. At the hearing held before the Commission in this matter, the St. Louis County Water Company conceded that it would be necessary to alter and relocate certain of its facilities, and agreed that it would remove and alter same. Those facilities which the Company agreed to relocate are shown by means of red crosses on St. Louis County Water Company Exhibit No. 18.
“If the facilities involved in this matter were left in place, the pavement of the highway would be subjected to damage from breaks or leaks which might occur in the water lines, and also would be subjected to damage because of the necessity for cutting the highway pavement to obtain access to the water lines to connect or disconnect service. Damage to the highway from breaks or leaks can occur in one of two ways. If the force of water escaping from the water main is sufficient, the base supporting the pavement, and in some instances the pavement itself, can be eroded away. If the flow of water escaping from the water main is not of sufficient force to erode the surrounding soil, it can still result in a saturation of the base and subbase for the pavement, which, when subjected to heavy traffic, can result in pavement settlement and instability. New service connections to the main or the disconnection of existing services to the main are made either by tunneling under the pavement or cutting through the pavement to reach the main. The repair of breaks or leaks in the main would also involve either cutting the pavement or tunneling under the pavement. In the event it should become necessary to cut the pavement to reach a main involved in this matter, the traffic using the highway would be hindered while the work was being done and while the pavement was being repaired. When any such cut is made in the pavement, there is a period of time that portions of the driving surface of the highway are blocked. This results in channeling all of the traffic on the highway into the remaining lanes, which not only slows down the movement of traffic upon the highway, but also create (s) a sharp hazard to the traffic. This hazard is especially prominent when such cuts are left open or barricaded at night. Eyen when the work involved can be performed on the shoulder of the highway, it still creates some hazard although perhaps not so great as if the work were being performed within the traveled way. When such work is performed on the shoulder it entails the use of machinery and men operating in close proximity to the traveled way, and motorists on the traveled way tend to veer away from any obstruction on the shoulder of the highway immediately adjacent to the lane in which they are traveling. Cuts in highway pavement for the purpose of connecting services and making repairs to water lines go on year around, which involves making repairs to cut pavement when weather conditions are not satisfactory for such work. A patch in a pavement offers a hindrance to traffic from that time on because of the unstable condition it creates, and constitutes a maintenance problem to Commission’s maintenance forces in an effort to maintain as smooth a riding surface on the highway as possible. This problem is even more pronounced in those instances where the pavement repair is made during times when weather conditions are not satisfactory for such work. There have been instances where breaks in water lines underneath a highway pavement have resulted in extensive damage to the highway facility from the erosion of the support for the pavement, and, in some instances, by actually eroding away the pavement itself. Although the Water Company pointed out at the hearing instances where pavement had been laid over water lines with no damage resulting, there have been other instances where breaks occurred immediately after the completion of pavement, requiring the pavement to be cut to make repairs.
“During the construction of a highway such as that contemplated by the plans in the instant matter, it is standard practice for contractors to use heavy equipment. This equipment consists of heavy scoops used for the movement of earth, which carry a load as great as twenty-one cubic yards, and when empty have a weight in excess of that permitted by statute upon State highways. In addition to the heavy earth-movers, the grade for the highway is prepared by compaction with heavy sheeps-foot rollers. This heavy equipment is normally operated over the entire length and width of the highway right-of-way, and it would be impossible to properly construct the proposed highway here involved without such equipment being directly over the water lines involved, thus subjecting the water lines to considerable stress from the weight and vibration of the machinery, with the possibility of causing a break or leak in the water lines. In the construction of a highway improvement such as is contemplated by the plans in this matter, it is not unusual that during the period of construction the contractor will encounter material which is not satisfactory upon which to prepare a proper grade for the highway. When such unsatisfactory material is encountered during construction it is necessary that it be removed and replaced with satisfactory material. It is customary for the contractor to remove this material for the entire width of the earth-moving machinery in use on the job. If in this case such unsatisfactory material were encountered during construction and its removal conflicted with the location of the water line, the contractor would be delayed until adjustment could be made in the water line. It cannot be determined whether such unsatisfactory material will be encountered until the construction is under way and the material in place is subjected to the compaction procedures.
“Based upon the foregoing, we are of the opinion that those water lines involved in this matter which, upon the completion of the proposed construction, would be located underneath the pavement of the highway should be relocated to another location within the highway right-of-way, except in those instances where the line will not be underneath the pavement a sufficient distance to make it impractical to reach the line without cutting the pavement. There are also instances where it is necessary for the water line to cross underneath the pavement from one side of the highway to the other, and this condition must be tolerated, since there is no other practical solution except to so install the water line that it will cross underneath the pavement within the shortest distance possible. We feel that, based on the above findings from the evidence in this matter, some of the facilities of the St. Louis County Water Company which it objects to relocating, if left in place, would interfere with the proper and economical construction and maintenance of said highway, and will tend to impede the lawful traffic thereon after reconstruction of the highway. There are, however, some of the facilities which the District Engineer originally ordered to be relocated that are not of sufficient degree of impediment to construction and maintenance of the highway, or traffic thereon, as to justify our requiring them to be relocated.
“We conclude that the location and removal of the facilities involved in this matter insofar as the public travel and traffic are concerned, and insofar as the same may interfere with the construction or maintenance of the highway is under the supervision of the State Highway Commission, and that the costs of altering the facilities as ordered hereby shall be borne by the St. Louis County Water Company.
"It is, therefore, the order of the Commission that, in addition to those facilities which the St. Louis County Water Company has agreed to alter and adjust, said Company shall cause its water transportation and distribution facilities to be relocated and altered substantially in the manner shown by red lines, words, and symbols on the plans attached hereto marked Exhibit Al and incorporated by reference herein. The St. Louis County Water Company may at its election relocate said facilities to the locations shown by the blue lines on said Exhibit.
“Upon motion made, seconded, and unanimously carried, the Commission adopted the foregoing as its findings and order in this matter, and directed the Secretary to certify a copy hereof and serve same upon the St. Louis County Water Company.”

The Company again petitioned for review of the decision of the Commission; the cause was submitted on the record, and the decision of the Commission was affirmed.

Appellant contends as upon the first appeal: (I) that the relocation order is unsupported by competent substantial evidence upon the whole record and is arbitrary, capricious, and unreasonable; (II) that the order is in excess of the Commission’s authority, and not authorized by law because not based upon evidence but on a previously adopted policy of the Commission.

The Commission’s power to order relocation under Section 227.240 and the extent of judicial review of decisions exercising that power are delineated in State ex rel. State Highway Commission v. Weinstein, Mo., 322 S.W.2d 778, 786, 787 [13-15] : “The question for determination of the Commission in the required hearing is whether the reconstruction of the highway in accordance with these plans makes it necessary to move these pipes to the proposed new location to prevent interference with the construction, maintenance, or use of the reconstructed highway. Judicial review would be limited to the determination of whether, on all the evidence produced at the hearing, the Commission could reasonably have made findings which would show that the pipes in their present location would interfere with the construction, maintenance, or use of the reconstructed highway and which would make it reasonable to require their removal to the proposed new location.” See also Jackson County Public Water Supply Dist. No. 1 v. State Highway Commission, Mo., 365 S.W.2d 553, 558. And, in respect to the previously mentioned policy, “The object of the hearing is not * * * to determine whether or not the policy should be applied. The object of the hearing is to determine whether or not the evidence shows that in the particular project the utility facilities would interfere with the construction, maintenance or use of the highway.” St. Louis Water Co. v. State Highway Commission, supra, 386 S.W.2d 1. c. 125.

Appellant questions neither the form of the Commission’s findings nor the sufficiency of the basic findings for the inference and ultimate finding that the water mains in question would interfere with the construction, maintenance, and use of the relocated highway. The problem here is thus narrowed to determining 'whether, on all the evidence and aside from its statement of policy, the Commission, on remand, could reasonably have made the findings in its order.

It was shown that if left in place, facilities ordered relocated would, after construction, be under hard surface concrete pavement or newly compacted roadway shoulders. In the opinion of A. E. Brewer, a Senior Engineer with the Commission, it is not desirable to have water lines under pressure under road construction due to vulnerability to breaks, leaks, and the need to make connections, all of which damage a road or shoulder. Large leaks can wash away grade and subsurface. Small leaks saturate and weaken pavement support. Repairs thus occasioned cause cuts in the roadway which interfere with use and maintenance. Construction here would involve operation of heavy earth movers hauling 21 cubic yards of material and heavy sheeps-foot impacting rollers over the ground covering the mains. Vance C. Lischer, a Consulting Engineer for appellant, felt that such weights could be withstood by the Company’s mains where covered by 21 inches of soil and where distributed over areas larger than the tires or tracks of such machine by hard pavements. He also recognized that the weight alone with less cover or without distribution would rupture pipe of the type used by the Company. Such heavy equipment is generally operated over the entire construction area and thus would be operated over the covering of any pipes located within the construction , site. The plans in evidence show that this project would involve two 24-foot pavements divided by median with stabilized shoulders on either side of the pavements. The present grade surfaces would be graded additionally to the extent necessary to accommodate a 4 — inch compacted granular base underlying the 9-inch pavement thickness. According to Mr. Brewer it is not always known how deep exis' 'ng grade will have to be removed in order to get a satisfactory base for the pavement and granular material. “We often times on construction have to remove unsatisfactory material to a depth of several feet and replace that with satisfactory material and compact it, so therefore we do not know the amount of undergrading or subgrading necessary.” Inferior or unsatisfactory materials could be expected to be encountered under any areas where pavement or previously stabilized shoulders had been. Much of the original concrete here would be covered rather than broken and removed but unsatisfactory material is found as well under old shoulders which would be graded or compacted in the project. “There is no base in the present shoulder. We will have to go down to the thickness of our new pavement, plus the base, plus any unsatisfactory material which we might find below it. Is it safe to assume that we won’t hit those? I don’t think so.” There was some testimony as to average depth of the Company’s lines’ exact depths being unknown, and Mr. Brewer felt from his experience in encountering water lines where not anticipated that excavation could go as low as such lines, in which case interference with and delay in construction would be occasioned. He recalled a break on Cypress Road on the Interstate 70 project which developed right after placement of new pavement over a Company water line. “ * * * it resulted in a washout underneath the pavement and a necessary cut through this new pavement with the result of a patch. * * * we have had plenty of instances * * * where water lines started to leak or did break after new pavement was constructed over them. * * Q. Mr. Brewer, let’s assume * * * that the lines that are involved in this hearing were to be left in place, could we be assured that in the construction of this highway we would not encounter some of those lines which would offer some interference to the actual construction of the highway? A. We could not, no. Q. And so far have you had an assurance that there would be no leaks encountered or no cuts made in the pavement for the installation of service connections? A. No sir. Q. Have you had any experience that would indicate to the contrary? A. Yes sir, as stated previously, we have had leaks and breaks under pavements that have required cutting the pavement and interference with traffic to repair those leaks or to replace a washed out roadway.”

Roy Rucker, District Engineer for the Commission, described a water main break in the Mark Twain Expressway necessitating cutting, backfill, grouting and patching with accompanying interruption of use. On that job an unanticipated main was encountered which required construction changes. He also described “cut compaction” requiring excavation to 18 inches below pavement where unsatisfactory materials were encountered.

Leon Corder, Traffic Engineer for the Commission, described the obstruction and hindrance of traffic where breaks and leaks occurred both on the pavement and shoulders. It was his opinion that “there’s almost invariably an interference with maintenance operations and with a soft shoulder, consequently an interference with traffic operations.”

The Company offered evidence of previous projects in the immediate area in which new pavement had been laid over water lines; that through the use of bell joint clamps they could prevent joint leaks; that the probability of breaks in its lines was remote ; and that anticipated connections could be accomplished without cutting or tunneling the road surface. Mr. Dolson of the Company described their manner of obtaining average pipe depth by gauging elevation of the pipe at 100-foot intervals. He-conceded that some of the pipe would be closer to the surface than his average depth of 23 or so inches under cover, and “I testified to the fact there was one spot, 8 inches, Yes. * * * there is one other spot where I think the distance from the surface to the top would be about 24 inches. From the bottom of the compacted base the top would be around 10 or 11 inches.” His experience data on line breaks did not take into consideration breaks occasioned by contractors and “accident.”

The foregoing is not intended as an exhaustive review of the evidence but is merely to show that the findings of the commission are supported and are such as reasonably could have been reached by such fact-finding body, resolving, where necessary, the conflicts in the evidence. Being thus supported by the evidence, such findings are not arbitrary, capricious, or unreasonable, thus creating a situation in which this court may not substitute its discretion for that of the Commission. Stein v. State Tax Commission, Mo., 379 S.W.2d 495, 498 [3].

And since the Commission has made the findings for which remand was formerly ordered and such are shown to he supported by the record, it may no longer be said that the Commission’s order was not based upon evidence but only upon policy.

Judgment affirmed.

HOUSER and WELBORN, CC, concur.

PER CURIAM.

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

All concur.

      . Section 227.240, V.A.M.S., in pertinent part provides:
      “1. The location and removal of all telephone, telegraph and electric light and power transmission lines, poles, wires, and conduits and all pipe lines and tramways, erected or constructed, or hereafter to be erected or constructed by any corporation, association or persons, within the right of way of any state highway, insofar as the public travel and traffic is concerned, and insofar as the same may interfere with the construction or maintenance of any such highway, shall be under the control and supervision of the state highway commission.
      “2. The commission or some officer selected by the commission shall serve a written notice upon the person or corporation owning or maintaining any such lines, poles, wires, conduits, pipe lines, or tramways, which notice shall contain a plan or chart indicating the places on the right of way at which such lines, poles, wires, conduits, pipe lines or tramways may be maintained. The notice shall also state the time when the work of hard surfacing said roads is proposed to commence, and shall further state that a hearing shall be had upon the proposed plan of location and matters incidental thereto, giving the place and date of such hearing. Immediately after such hearing the said owner shall be given a notice of the findings and orders of the oommission and shall be given a reasonable time thereafter to comply therewith; provided, however, that the effect of any change ordered by the commission shall not be to remove all or any part of such lines, poles, wires, conduits, pipe lines or tramways from the right of way of the highway. The removal of the same shall be made at the cost and expense of the owners thereof unless otherwise provided by said commission, and in the event of the failure of such owners to remove the same at the time so determined they may be removed by the state highway commission, or under its direction, and the cost thereof collected from such owners, and such owners shall not be liable in any way to any person for the placing and maintaining of such lines, poles, wires, conduits, pipe lines and tramways at the places prescribed by the commission.”


text:
    STATE of Missouri, Respondent, v. Travis GULLETT, Appellant.
    No. 52275.
    Supreme Court of Missouri, Division No. 1.
    Feb. 13, 1967.
    Norman H. Anderson, Atty. Gen., John C. Klaffenbach, Asst. Atty. Gen., Jefferson City, for respondent.
    No attorney for appellant.
   HOUSER, Commissioner.

This is an appeal from an order overruling a motion filed under Criminal Rule 27.26 to vacate a sentence and judgment in a burglary and larceny case filed against Travis Gullett.

We have no jurisdiction of this appeal and the appeal must be dismissed for the reason that the notice of appeal was not filed in time.

An order overruling a motion to vacate a sentence and judgment, filed under Criminal Rule 27.26, is deemed a final judgment for the purpose of appeal. Criminal Rule 27.26; State v. Warren, Mo.Sup., 344 S.W.2d 85 [3]. The rules applicable to appeals in civil proceedings govern, since a proceeding under Criminal Rule 27.26 is regarded as a civil proceeding. State v. Floyd, Mo.Sup., 403 S.W.2d 613. Civil Rule 82.04, governing the time and manner in which appeals shall be taken, provides that no appeal shall be effective unless the notice of appeal shall be filed not later than 10 days after the order appealed from becomes final. For the purpose of ascertaining the time within which an appeal may be taken, a judgment becomes final at the expiration of 30 days after the entry of such judgment, where (as in this case) no motion for a new trial is filed. Civil Rule 82.05. This order w.as entered on March .11,.1966, and it became a final judgment for the purpose of appeal 30 days thereafter. If the notice of appeal had been filed not later than April 20, 1966 this appeal would have been timely. The notice of appeal, however, “received” by the clerk from the defendant on May 18, was not filed until May 24, 1966, which was too late. We have no jurisdiction of this appeal because the time for the filing of the notice of appeal had expired at the time of the filing. State v. Brookshire, Mo.Sup., 400 S.W.2d 61.

Civil Rule 82.07 (a) provides that when an appeal is permitted by law from a final judgment in the trial court but the time prescribed for filing the ordinary notice of appeal has expired, a notice of appeal may be filed in the trial court within 6 months from the date of the final judgment, if the party seeking reversal of the final judgment is permitted to do so by a special order of the appropriate appellate court. There is nothing in the transcript or records of this Court showing that the notice of appeal was filed pursuant to a special order of this Court as authorized by Civil Rule 82.07 (a). State v. Brookshire, supra.

Accordingly, the appeal is dismissed.

WELBORN and HIGGINS, CG, concur.

PER CURIAM:

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.

      . All references to rules relate to Rules of the Supreme Court of Missouri, found in V.A.M.R.


text:
    Stanton M. GLADDEN, Janies Hogan, Frank Shortino and Richard Call, Appellants, v. KANSAS CITY, Missouri, a Municipal Corporation, Respondent.
    No. 52186.
    Supreme -Court of Missouri, Division No. 2.
    Feb. 13, 1967.

      Charles C. Shafer, Jr., Kansas City, for appellants.
    Herbert C. Hoffman, City Counselor, Carrol C. Kennett, Asst. City Counselor, Kansas City, for respondent.
   STOCKARD, Commissioner.

In this class action the plaintiffs have appealed from a judgment of the Circuit Court of Jackson County dismissing their petition with prejudice. On behalf of approximately 8S0 members of the Fire Department of Kansas City, plaintiffs sought, by Count I of their petition, the sum of $809,113.38 as overtime compensation for time worked from October 8, 1956 to March 28, 1964, and by Count II of their petition they sought approximately $150,000 overtime compensation for time worked each month after March 28, 1964. Jurisdiction of this appeal is in this court.

After the defendant had filed its answer and plaintiffs had filed a reply, plaintiffs filed a motion for “summary judgment in their favor.” On July 22, 1965, the following order was entered of record: “Now on this day plaintiffs’ motion for summary judgment is by the court overruled.” No other motion was filed by either party. However on April 21, 1966, and as far as is shown by the record with no notice to the parties, at least not to plaintiffs, the following was entered of record: “It appearing to the court from plaintiffs’ motion for summary judgment that there are no issues of fact in this cause and that the same may be determined solely on questions of law, and it appearing from defendant’s answer that there are no questions of fact and that defendant denies owing plaintiffs any money as claimed in their petition. Therefore, it is ordered, adjudged and decreed that plaintiffs’ motion for summary judgment is by the court overruled, and plaintiffs’ petition is dismissed with prejudice and that defendant have and recover its costs herein expended.”

Whether July 22, 1965, or April 21, 1966, be considered the date on which the trial court overruled plaintiffs’ motion for summary judgment, the result of the trial court’s action was that on April 21, 1966, with no notice to plaintiffs and without any request or motion on the part of the defendant, the trial court on its own motion dismissed plaintiffs’ petition with prejudice, which action constituted a ruling by the court on the merits of plaintiffs’ claim. See Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907; Bindley v. Metropolitan Life Ins. Co., 358 Mo. 31, 213 S.W.2d 387; Hannibal v. St. Louis Public Service Co., Mo. App., 200 S.W.2d 568. We are constrained to hold that this was error.

In Bindley v. Metropolitan Life Ins. Co., supra, this court said this: “Notice and a hearing, or an opportunity to be heard, have long been considered essential to due process, to a decision on the merits of a cause and to the deprivation of rights and property.” Reference was made to various motions authorized by the then code of civil procedure which resulted a final adjudication of a cause, and it was held that “Such motions require notice and a hearing or an opportunity to be heard, where the party is not in default for failure to appear.” In Hoppe v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347, 23 A.L.R.2d 846, judgment for defendant pursuant-to a jury verdict was entered in plaintiff’s action for personal injuries. Plaintiff’s motion for new trial was filed out of time and was a nullity. Thereafter, but within thirty days after judgment, the trial court of its own motion but with no notice to defendant granted plaintiff a new trial on the ground that the verdict was against the weight of the evidence. This court stated that the question for decision “concerns not the power of the court to order the vacation of a judgment,” but that “[w]e are here concerned only with the manner of the exercise of such power.” The court then held as follows: “In our system of jurisprudence reasonable notice to a litigant (when there exists even the possibility of action adverse to his interests) is deemed to be of the essence of fairness and justice. Reasonable notice to parties whose interests are at stake in a contemplated order is a prerequisite to the lawful exercise of the court’s power. Opportunity for a litigant to present his views as to matters instantly before the court which may affect his rights is the very foundation stone of our procedure.” The order granting a new trial in the Hoppe case was set aside, and we are of the opinion and hold that the dismissal with prejudice of a petition without notice is subject to the same rule.

Defendant argues that the trial court had jurisdiction to enter the judgment of dismissal, and we agree, but as in the Hoppe case we disagree with the manner of the exercise of that jurisdiction. Defendant also contends that “under the established rules of statutory construction, appellants have neither stated nor proved a claim for recovery or relief.” In the absence of a trial we agree there has been no proof. As to stating a claim, the decision by the trial court on that issue adverse to plaintiffs based on “established rules of statutory construction,” if this was the basis for the trial court’s ruling, resulted in a decision on the merits of plaintiffs’ claim with no notice to them and with no right to be heard.

The judgment dismissing plaintiffs’ petition with prejudice is reversed and the cause remanded.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM:

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.