text:
    Evelyn Lantz WELCH, Appellant, v. CONTINENTAL PLACEMENT, INC., et al., Respondents.
    No. 30101.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Lantz Welch, James Bartimus, Welch & Austin, Kansas City, for appellant.
    Don A. Peterson, Joe W. Coleman, Kansas City, for respondents.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of dismissal of petition on grounds that action was barred by limitations. The prematurity of the appeal requires its dismissal.

On January 19, 1972, Evelyn Lantz Welch, appellant, filed a four-count petition in the Jackson County Circuit Court, seeking money damages and injunctive relief in a cause arising out of her sale of stock of Evelyn Welch Associates, Inc. to the defendants in the case. The defendants, Continental Placement, Inc., Dolores Sawyer and M. B. Sawyer, on January 31, 1972, filed an answer to the petition and a counterclaim and cross-petition. One count of the counterclaim sought damages against plaintiff for interference in the business operation of Evelyn Welch Associates, Inc., and for violation of her agreement concerning the sale of her stock in that company. A second count sought equitable relief.

The claim for equitable relief in plaintiff’s petition and the equitable count of defendants’ counterclaim were tried separately and determined adversely to plaintiff in April, 1972.

In December, 1975, plaintiff filed her first Amended Petition in one count, seeking reformation of the contract for the sale of her stock. Trial of that matter began on August 15, 1977. On the second day of the trial, plaintiff was permitted to amend her First Amended Petition by, in effect, including therein Counts I and II of her original petition, which had been omitted from the First Amended Petition.

The abbreviated transcript filed here indicates that, on the first day of the trial, the defendants had dismissed their counterclaim without prejudice. Upon the trial court’s overruling of defendants’ objections to the amendment of plaintiff’s petition, the defendants requested the trial court to reinstate their counterclaim and cross-petition. The trial court granted the request and ordered that the counterclaim and cross-petition be reinstated as a pleading in the case. Trial then proceeded on Count III of the First Amended Petition, as amended, and a judgment was entered thereon.

Defendants moved for summary judgment on Counts I and II of the petition as amended on the grounds that they were barred by the statute of limitations. The trial court sustained the motion and entered judgment for defendants on Counts I and II.

Plaintiff appeals from that judgment. Respondents suggest that the appeal is premature in that, in view of their pending counterclaim and cross-petition, the judgment appealed from does not dispose of all issues and all parties and is therefore not a final judgment under Section 512.020, RSMo 1969, and Rule 81.06.

The counterclaim arises “out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case * * * ” (Rule 81.06). The judgment appealed from has not been designated as final for purpose of appeal by the trial court. Therefore, the appeal is premature and must be dismissed. Allis-Chalmers Credit Corp. v. Baker, 559 S.W.2d 763 (Mo.App.1977); Dudley Special Road District v. Harrison, 515 S.W.2d 597 (Mo.App.1974).

Appeal dismissed.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Raymond CRAWFORD, Appellant, v. Norma McMILLEN, Respondent.
    No. KCD 30141.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Jimmie D. James, David G. Sperry, James & Sperry, A Professional Corporation, Independence, for appellant.
    Austin B. Speers, Speers & Slyter, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   PER CURIAM.

This case, tried to the Court, ended in a judgment in favor of defendant (respondent) and an appeal by plaintiff (appellant).

Appellant’s action against respondent sounded in two counts — one, for recovery of money ($1,600.00) loaned to respondent, and two, for recovery of the reasonable value ($249.03) of certain materials and services provided and performed by appellant on behalf of respondent. The position of appellant on appeal — error on the part of the trial court in rejecting his claims in that doing so was against the greater weight of the evidence — finds its nemesis in the record and the applicable law to which it is subject.

Appellant’s testimony took the following course: he was a divorced person and casual acquaintance of respondent; he loaned respondent $1,600.00 in money and provided materials and performed certain services on respondent’s behalf of the reasonable value of $249.03, all of which respondent promised to repay and pay for. Respondent’s testimony took the following course: she was a widow with whom appellant became enamored; the $1,600.00 in money and materials and services of the reasonable value of $249.03 were gifts, pure and simple. Confronted with these conflicting versions of the financial entanglements which prompted the litigation, the trial judge found in favor of respondent and against appellant under both counts of appellant’s petition.

This court has no choice but to defer to the trial court’s assessment of the credibility of the witnesses and to yield to the command of Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976), and affirm the judgment of the trial court because it cannot be said to lack substantial evidence to support it, or to be against the weight of the evidence, or to erroneously declare or apply the law.

As an extended opinion in this case would have no precedential value, the judgment of the trial court is affirmed in accordance with Rule 84.16(b).

Judgment affirmed.


author: CLARK, Judge.

text:
    STATE of Missouri, Respondent, v. Lillie DOWDELL, Appellant.
    No. KCD 30142.
    Missouri Court of Appeals, Western District.
    June 11, 1979.

      Rita M. Montgomery, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Hope E. Thur-rott, Special Asst. Atty. Gen., Kansas City, for respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   CLARK, Judge.

Lillie Dowdell was convicted by a jury of the offense of perjury and was sentenced to a term of seven years. The issue on this appeal is denial of appellant’s right to representation by counsel at trial. Reversed and remanded.

Appellant was charged by information filed February 23, 1977. The first trial setting was April 20, 1977. On that date appellant appeared with private counsel who, it is inferred, had earlier been retained by appellant and had entered his appearance on her behalf. Such conclusion is drawn from the docket entry of that date which reflects the filing of a motion by appellant’s counsel seeking leave to withdraw and the motion itself which recites the prior entry of appearance.

Further discussion among the court, appellant and counsel as to withdrawal and substitution of counsel for appellant continued at docket calls until June 6, 1977. On that date appellant appeared personally together with the prosecuting attorney and appellant’s attorney, although absent, was granted leave to withdraw in accordance with his motion previously filed. A subsequent letter from that attorney to appellant and reproduced in the supplemental transcript indicates a source of disagreement to have been a financial commitment unfulfilled.

Various trial settings subsequent to April 20, 1977 at which appellant appeared without counsel followed, but the case was successively continued either because not reached or by reason of requests for continuance. On September 14, 1977, another continued trial date, appellant informed the court that she had tentatively employed an attorney, one Larry Bryson, subject to agreement on fee arrangements. The court reviewed the history of continuances in the case, appointed the public defender to represent appellant and announced that the case would be tried at the next setting “either with Mr. Bryson or the defender’s office or yourself representing yourself in this matter”.

On September 20,1977, the court received a letter from Larry Bryson advising that he had not been retained by appellant. A motion by the public defender to withdraw as appellant’s attorney was filed October 19, 1977 and was granted by the court October 24, 1977. No notice of the filing of the motion by the public defender to withdraw or of the order granting leave to withdraw was given to appellant.

On October 31,1977, pursuant to an earlier docket entry setting the case, it was called for trial. Appellant appeared pro se, announced that she was not prepared to proceed because she did not have an attorney and requested time to consult or employ counsel. The request was denied and trial proceeded with appellant defending herself unassisted.

In the consideration of this case, it is first necessary to address the question of the untimely filing of appellant’s motion for new trial. On the date of rendition of the verdict, October 31, 1977, the court granted an additional thirty days for filing the motion, a period which expired December 10, 1977. That date passed with no action taken. On December 27, 1977, present counsel entered an appearance for appellant and was given until January 27, 1978 to file a motion.

Such order was beyond the jurisdiction of the trial court which jurisdiction had been exhausted by the original extension of thirty days. Rule 27.20. A motion for new trial was, however, filed on January 26, 1978, was heard by the court on February 27, 1978 and was overruled March 13, 1978. This appeal followed.

On the above state of the record, failure of appellant to file timely a motion for new trial preserves nothing for appellate review. State v. Morris, 518 S.W.2d 78 (Mo.App.1974). In appropriate cases, however, Rule 27.20(c) authorizes the court to consider plain error even though not preserved. To invoke the plain error doctrine, it must appear that there is a sound, substantial manifestation and a clear showing that injustice or a miscarriage of justice will follow if the rule is not applied. State v. Davis, 566 S.W.2d 437, 447 (Mo. banc 1978).

We conclude that the trial court was obligated to secure from appellant a knowing and intelligent waiver of counsel, appoint counsel or make a finding that appellant could afford to pay counsel and having complied with none of these alternatives, manifest injustice resulted when appellant was compelled to proceed to trial without counsel. Review of the case is therefore accepted pursuant to Rule 27.-20(c), it being also observed that expiration of the time allotted for filing the new trial motion occurred before entry of counsel on appellant’s behalf.

The right of an accused to counsel at trial is of constitutional stature. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Absent a knowing and intelligent waiver, no person may be imprisoned unless he was represented by counsel at trial. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Where a defendant has appeared pro se, the burden is on the state to show that the defendant voluntarily waived his right to counsel with understanding of his rights and of the consequences. State v. Tilley, 548 S.W.2d 199 (Mo.App.1977).

No suggestion may be made here that appellant waived her right to counsel intentionally or knowingly. Rather, the trial commenced after her request for additional time to obtain counsel had been overruled. At most it can only be claimed that waiver of counsel is to be inferred on the premise that appellant was financially able to employ counsel, was afforded sufficient time to do so but failed to exercise the right and, hence, waived the right.

The record in this case eliminates any possibility for concluding that appellant inferentially by her conduct waived her right to counsel. In recognition of the prospect that appointment of counsel was indicated, the court did, as noted, appoint the public defender to represent appellant and later confirmed that such had been the purport of the September 14, 1977 order by entertaining and granting a motion for leave for appointed counsel to withdraw. While the charge upon the public defender to prepare appellant’s case for trial on the contingency that other counsel possibly would enter the case presented a potentially vexing problem, appellant was entitled to assume until the morning of trial that the public defender would represent her as she was given no notice of the earlier motion and order under which the public defender withdrew and she was otherwise unrepresented.

Apart from the failure of notice to appellant that the public defender was seeking to withdraw and was later granted leave to do so within one week of the date set for trial, a further omission enhances the status of appellant’s claim. Rule 29.-01(d) imposes a duty on the court to assure continuous representation of a criminal defendant once counsel is appointed. Under the rule, the court is required to appoint new counsel when previously appointed counsel is permitted to withdraw. In the present' case, entry of the order granting leave to the public defender to withdraw obligated the court to appoint substitute counsel and trial should not have proceeded in the absence of compliance with the rule.

The record is deficient in the matter of appellant’s ability to employ counsel or, conversely, her indigency entitling her to appointed counsel. On June 8, 1977, the occasion of a docket call of the case, the court conducted a brief inquiry of appellant regarding her employment and approximate income and admonished appellant that she must either have counsel or be prepared to defend herself. Similar colloquies followed at docket calls on July 26,1977 and September 14, 1977. On the latter date, the court did, as earlier noted, appoint the public defender to represent appellant and included an observation that by reason of appellant’s employment and ability to pay, the expense of furnishing representation could be taxed as costs.

Immediately prior to the commencement of trial on October 31, 1977, further interrogation of appellant by the court as to her ability to employ an attorney provided only limited information. From her employment at the University Medical Center, appellant had gross earnings of $280.00 for two weeks and net earnings of $150.00 to $160.00. She had no dependents. The only additional information available to and relied on by the court to determine appellant’s entitlement to appointed counsel was a letter dated October 12, 1977 addressed to the trial judge by the public defender stating that the public defender would not represent appellant because she was not indigent and did not qualify for their services. Additional .comment by the court at the pre-trial proceedings on October 31, 1977 discloses an acceptance of the public defender’s inquiry and decision regarding appellant’s indigen-cy as conclusive on the subject.

Section 600.046, RSMo Supp.1976 requires the court to appoint counsel to represent an indigent defendant charged with a felony. Determination of indigency is a finding required by Section 600.086, RSMo Supp.1976 to be made by the court “through suitable inquiry into the financial circumstances of the person and his immediate family with regard to their assets, income, debts and family obligations, and such other matters as may be relevant, including the nature of the charge and the probable cost of adequate legal representation”. The test of financial ability to pay for the services of an attorney is to ascertain if the evidence shows the person can do so without substantial hardship to himself. State v. Brown, 557 S.W.2d 687 (Mo.App.1977).

In this case, the trial court did not make the inquiry as to appellant’s financial circumstances which the statute requires. No information was before the court concerning appellant’s debts or assets, her personal living expenses or the prospective cost of defense counsel fees. The fact that appellant did have net disposable income of $75.00 to $80.00 per week from employment does not alone suggest a presumptive capability to retain private counsel.

Although the public defender apparently made some investigation regarding appellant’s financial resources he made no factual report to the court, only, the conclusion indicated by the record. The duty of ascertaining indigency and qualification for and appointment of counsel is a function to be performed by the court and may not be delegated to the public defender as was apparently done here. In permitting the public defender to withdraw and requiring appellant to proceed to trial pro se upon her failure to employ counsel, the court resolved the issue of appellant’s entitlement to appointed counsel without the requisite information.

From the foregoing, it must be concluded that appellant did not waive the right to counsel at trial and the court erred in permitting appointed counsel to withdraw and in requiring appellant to proceed to trial without an attorney.

The judgment is reversed and the cause 'remanded for a new trial.

All concur.


author: MANFORD, Judge.

text:
    CITY BLOCK & PRODUCTS COMPANY, Appellant, v. The SPOFFORD HOME et al., Respondent.
    No. 30193.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    John K. Weilert, J. D. Williamson, Jr., Independence, for appellant.
    Paul H. Niewald and John L. Hayob, Kansas City, Attorneys for respondents The Spofford Home and Jenkins & Blaine Construction Co.
    W. Perry Brandt, Kansas City, for respondents Michael G. O’Flaherty and First National Bank.
    Daniel J. Flanigan, Kansas City, for respondent Daniel J. Flanigan.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Appeal from final order dismissing appellant’s petition. Reversed.

Appellant supplied certain building materials for respondent’s property. Appellant timely filed its mechanic’s lien. Upon suit to enforce its lien, appellant asked leave of the trial court to amend its petition to correct a typographical error in its petition. It was alleged that the date should have been April 11 instead of March 11, as stated in the petition.

As required by statute, appellant provided an accounting of materials furnished. Copies of this accounting were attached to the petition and made a part thereof. As exhibits and as part of the petition, these documents established the validity of the April 11, 1977 date.

The trial court denied appellant’s request to amend- and almost simultaneously sustained respondents motion to dismiss. The refusal to permit appellant to amend the face of his pleadings placed appellant’s claim outside the statute of limitations regarding mechanic’s liens.

The trial court abused its discretion and should have permitted appellant to correct the typographical error. In its failure to do so, the trial court failed to follow the more liberal and favored interpretation of Rule 55.12, because the exhibits attached to the petition became a part of the petition.

The dismissal of appellant’s petition with prejudice constituted a final adjudication of the cause on its merits, giving this court the power to review the action taken, (see Rule 67.02)

It should be noted that the rule laid down in Braun v. Graham, 211 S.W.2d 494 (Mo.App.1948), relied upon by respondents, prohibiting amendment to a petition which changes substantial facts, not only fails to be persuasive herein because appellant did not attempt to change a substantial fact, but further, without overruling Braun v. Graham, supra, our State Supreme Court held that such rule was not to be enforced. White v. Sievers, 359 Mo. 145, 221 S.W.2d 118 (1949).

There is nothing in this record to indicate that respondents will suffer any undue hardship if the matter is tried on its merits.

This case is reversed and remanded with directions that appellant be granted leave to amend its petition to the date of April 11, 1977 in lieu of March 11, 1977, and that the matter be taken up and disposed of on the merits.

All concur.


author: WASSERSTROM, Judge.

text:
    Mr. and Mrs. Joseph E. STURGESS, Mr. and Mrs. Glen W. Pendegraft, Theron Carl Sturgess, by his next friend, Joseph E. Sturgess, and Bryan Pendegraft, by his next friend, Glen W. Pendegraft, Relators-Respondents, v. Mr. Robert GUERRANT, Mr. George H. Carrington, Mr. E. C. Tennyson, Mr. Ernest Wagner, Mr. Clyde Hickman, Mr. Frank Mahoney, Jr., and Mr. Robert Hunt, Sr., Respondents, Gary Vandelicht, Monroe Bartley, Jim Meyer, Stanley Brown, Wayne Brooks and Richard Smart, Intervenors-Appellants.
    No. KCD 30199.
    Missouri Court of Appeals, Western District.
    June 11, 1979.

      Larry M. Woods, Sapp, Woods & Orr, Columbia, for intervenors-appellants.
    James C. Swearengen, Kenneth R. Scat-terly, Hawkins, Brydon & Swearengen, P.C., Jefferson City, for relators-respon-dents.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   WASSERSTROM, Judge.

The parents of Theron Sturgess and the parents of Bryan Pendegraft applied to the Board of Directors of South Callaway R-II School District (hereafter referred to as “the Board”) for reassignment of these two children to the Fulton School District under the authority of Section 167.121. The Board declined to make either reassignment. The parents, on behalf of themselves and as next friend of their respective children, filed a joint petition in the circuit court for mandamus to compel the transfers. The circuit court issued its alternative writ and thereafter its preemptory writ in favor of the relators. The Board appeals.

As a preliminary matter, we note that the relators failed to follow the customary practice of filing their application for mandamus in the name of the State. However, no point has been made with respect to this in either the trial court or in this court. Inasmuch as the defect is not jurisdictional, we will proceed to a consideration of the cause on its merits. England v. Eckley, 330 S.W.2d 738, l.c. 740 (Mo. banc 1960). This matter is mentioned only for the purpose of preventing the bar from being misled as to the proper form of procedure through any reliance upon the manner in which the present case is styled.

The facts are undisputed. The Sturgess and Pendegraft families live in the South Callaway R-II School District, and Theron and Bryan would both normally attend the Mokane Elementary School. However the area in which they live is much closer to the schools in the Fulton School District. »Because of the greater convenience to the families in this area of sending their children to the Fulton schools, a petition was filed and an election held in 1972 with respect to a change of the school boundary line. Although the voters in the Fulton School District and the residents of this particular area voted in favor of a boundary change, the proposed change failed because of an adverse vote of the voters as a whole in the South Callaway R-II School District.

In 1976, Theron attained school age and the Sturgesses filed an application on April 25, 1976, to the Board for reassignment of Theron to the Fulton District. At a meeting of the Board, of which notice was sent to the Sturgesses, but which they did not attend, the Sturgess application was denied on July 14, 1976. The Sturgesses nevertheless enrolled Theron in the Bush Elementary School in the Fulton District at their own expense. They again requested a reassignment of Theron and the request was again denied on December 17, 1976.

Bryan Pendegraft was 11 years old at the time of the trial. He had attended the Mokane School until January 27, 1977. He was having reading difficulty, but the Mok-ane School had no remedial reading program. The Pendegrafts therefore requested a reassignment to the Fulton School District which did have such a program, but their application was denied by the Board on March 9, 1977. The Pendegrafts nevertheless enrolled Bryan in the Center School in the Fulton District at their own expense, and Bryan attended that school for the balance of the school year.

The application for mandamus by the two families to compel reassignment of the two children was filed in the circuit court on April 19, 1977, and alleged in accordance with the statutory language of Section 167.-121 that the Fulton schools were “more accessible” to them than the Mokane School. An alternative writ was issued by the circuit court, to which the Board filed a return in which it denied the allegation of greater accessibility of the Fulton schools. In addition, the Board’s return alleged “that to permit reassignment of said students to the Fulton School District will set a dangerous precedent by the Court which in effect constitutes a rewriting of the boundary lines of said school districts involved.”

Preliminary to the trial in the circuit court, the parties entered into a stipulation which included the following facts. If Theron were required to attend the Mokane School, that would require a round trip of 46.6 miles each day. In contrast, the round trip to the Bush School is only 7.4 miles. The difference in daily mileage for Theron therefore comes to 39.2 miles. Bryan would have to travel 47.8 miles daily to the Mok-ane School, whereas the distance for the round trip to the Center School is only 8 miles, for a difference of 39.8 miles daily. On the other hand, South Callaway R-II District is the only school district authorized to furnish transportation to these children, and no such transportation is provided by the Fulton School District to them.

Additional facts were introduced by way of testimony. Uncontradicted testimony on behalf of Theron showed that his father is employed by the Fulton School District, the mother also works in Fulton, both travel there to work, and one or the other drives Theron to and from the Bush school. If both parents are delayed in the after school pickup for any reason, Theron can walk to the home of a babysitter who lives two blocks from the school and where Theron’s younger sister is cared for during the day. As an alternative to that, neighbors who have children in the Fulton schools can pick Theron up and take him home.

The Sturgesses attend church in Fulton and they do their shopping and banking there. Their doctor and dentist are located in Fulton. If Theron were required to take the Mokane School bus, in the morning he would have to cross the road in front of his house to get to the bus, and that road has been the scene of some traffic accidents. Mrs. Sturgess works with the Bush School PTA assisting in school activities there, was president of the Fulton Art League and has been a member of the hospital auxiliary of Fulton. If the Mokane bus were utilized, Theron could arrive home before his parents and there would be no one to receive him.

The following uncontradicted testimony was offered with respect to Bryan. During his partial year attendance at Center School, he was driven each way by his mother in the family car. During the time he was at the Mokane School, he started but had to drop out of Cub Scouts because of the distance involved. He would have liked to attend school basketball games, but it was impossible for him to do so. He did not enter into any extracurricular activities at the Center School because he entered there too late in the school year, but during the ensuing school year he expected to participate in school wrestling and school basketball. Mrs. Pendegraft had been unable to participate in PTA activities at the Mok-ane School, but intended to participate in the PTA at the Center School. Bryan has an ear affliction, and the doctor to whom he goes for periodic attention is located in Fulton. The Pendegrafts do their shopping and banking in Fulton.

For its first point on appeal, the Board argues that the trial court erred in issuing its writ of mandamus because by doing so it improperly substituted its discretion for that of the Board. In support of that contention, the Board invokes the rule that mandamus will not lie to control or coerce a discretionary act of an administrative body. However, the rule relied upon by the Board was held in State ex rel. Seidl v. Jefferson County Board of Education, 548 S. W.2d 853 (Mo.App.1977) to be subject to the following exception: “Exception to the general rule is that in cases of undisputed facts, where the discretion of the official could legally be exercised in only one way, the court may issue mandamus to control discretionary acts.” Furthermore, State ex rel. Shepherd v. St. Louis County Board of Education, 542 S.W.2d 55 (Mo.App.1976) holds that judicial review of a refusal to reassign a student to a different school district is governed by Rule 100.08 and Section 536.150, and that under that authority a court has the power to review the Board’s action for an alleged abuse of discretion.

But, says the Board, it reviewed all of the factors listed in State ex rel. Seidl v. Jefferson County Board of Education, supra, as bearing on the concept of “accessibility,” it reached a reasonable conclusion based upon a balancing of those factors, and therefore its denial of the reassignments cannot be deemed an abuse of discretion. In this connection, the Board relies upon a portion of the trial court’s memorandum which states as follows: “[I]t would appear from the evidence adduced at the trial that as to distance and where parents worked, both would be resolved in favor of relators. That as to the question of available bus transportation, this would be resolved in favor of respondent and that the safety of the road as between traveling to Fulton by car or traveling to Mokane by bus would be a toss-up.” The Board argues that upon this analysis, a reasonable conclusion could be reached either way, thus showing that the determination reached by the Board was not arbitrary or an abuse of discretion.

Whatever merit this argument may have had when the matter was before the Board or even at the time of hearing before the trial court in August, 1977, the argument no longer has any validity. On September 28, 1977, a new statutory provision became effective requiring that transportation of pupils transferred pursuant to Section 167.121 “shall be provided by the district of residence.” Section 167.241, RSMo Supp.1977. That new section was in force at the time the trial court issued its peremptory writ of mandamus on February 23, 1978, and is still in force. An appellate court must decide a case on the basis of the law in effect at the time of the appellate decision. United States v. The Schooner Peggy, 5 U.S. 103 (1801); Ziffrin, Inc. v. United States, 318 U.S. 73, 78, 63 S.Ct. 465, 87 L.Ed. 621 (1943); Dinsmore v. Southern Express Co., 183 U.S. 115, 22 S.Ct. 45, 46 L.Ed. 111 (1901); Bradley v. School Board of City of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); De Rodulfa v. United States, 149 U.S.App.D.C. 154, 461 F.2d 1240 (1972); 5 Am.Jur.2d Appeal and Error, Section 729, p. 173.

The advantage to these children of having school bus transportation to the Mokane School, in contrast to no bus transportation to the Fulton schools, has therefore been eliminated. With the element of transportation by school bus thus taken out of the case, there is no substantial factor weighing in favor of the determination made by the Board. This case therefore falls within the discussion by Judge Dixon on behalf of this court in Haymart v. Freiberger, 498 S.W.2d 590, l.c. 593 (Mo.App.1973). That case involved a petition for mandamus in 1972 by parents who sought the reassignment of 14 children from the Mokane School to the Fulton schools. Those parents are now neighbors of the Sturgesses and Pende-grafts, and are so referred to in the evidence in the present case. This court affirmed a writ of mandamus requiring the transfer of those neighboring children. In the course of the Haymart opinion, the following appears at page 593:

“All of the evidence in this case disclosed that in addition to the proximity of the Fulton schools, other factors operated to make the Fulton schools more accessible in the broad sense of that term. Conceding that accessibility is not solely a matter of geography does not alter the fact in this case, that the children’s ability to utilize all the services of the school was impaired if they were required to attend the Mokane School and that there was uneontroverted evidence that the road hazard would be greater, not only as to the distance and time involved, but as to the quality of the roads they would travel if they attended the Mokane School. Thus, considering all the factors, the Mokane School is clearly less accessible than the Fulton school. A contrary finding by the Superintendent based on the evidence adduced at the trial would very likely be so clearly arbitrary and capricious that it would be an abuse of discretion and permit the court’s intervention on that ground.”

For its second point on appeal the Board contends that the Sturgesses and Pende-grafts had the burden of satisfying the Board that the Fulton schools were more accessible, but that they failed in carrying that burden. To support that contention the Board argues that these applicants failed to appear and presented no evidence before the Board, although they had been notified of the meetings at which these applications were to be considered.

Even though it is true that neither the Sturgesses nor Pendegrafts appeared at the Board meetings in support of their respective applications, nevertheless the Board takes the strong position before this court that the Board members were “totally intimate” with all the factors involved and took all of the relevant factors into account. Thus, whether or not the necessary information was produced by the applicants, the Board did have full knowledge of the facts; and under the law the Board’s “duty was to consider and act on the basis of all pertinent facts of which it had knowledge or information.” State ex rel. Shepherd v. St. Louis County Board of Education, supra 542 S.W.2d at p. 59. Accordingly, the failure of the Sturgesses and Pendegrafts to appear and give evidence before the Board had no adverse effect and cannot excuse the erroneous action taken by the Board.

Another matter raised by the Board in the trial court will be answered, although not preserved for review by a Point Relied On. In its return to the alternative writ, the Board objected that the reassignment of Theron and Bryan would amount to “a rewriting of the boundary lines of said school districts.” That objection fails to take into account and confuses the contrasting purposes of the two statutory procedures, and this error may have caused or contributed to the Board’s determinations in this case.

A change of boundary proceeding is a statutory method by which a whole group of school children in an entire area may be shifted from one school district to another. The procedure for reassignment under Section 167.121 is entirely different. The latter proceeding is on an individual basis, rather than on a group or area basis, and the purpose is to alleviate hardship or inconvenience to a particular individual family, with the result that each application must be considered separately on its own particular facts. State ex rel. Seidl v. Jefferson County Board of Education, supra at 857. And this provision for reassignment “should be liberally construed in order to effectuate its beneficent purpose.” School Dist. of Mexico, Mo. v. Maple Grove School District, 359 S.W.2d 743, l.c. 746 (Mo.1962).

The trial court did not improperly state or apply the law, its decision is supported by substantial evidence and is not contrary to the weight of the evidence. Under the doctrine of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), that determination is entitled to affirmance. State ex rel. Shepherd v. St. Louis County Board of Education, supra.

Affirmed.

All concur.

      . All statutory references, unless otherwise noted, are to RSMo 1969. Section 167.121 provides as follows: “If any pupil is so located that a school in another district is more accessible, the county board of education shall assign the pupil to the other district. The board of education of the district in which the pupil lives shall pay the tuition of the pupil assigned. The tuition shall not exceed the pro rata cost of instruction.”

      . At the time of the trial, a remedial reading program had been formulated for the Mokane School and was to be available for the 1977-1978 school year.

      . It should be noted that in 1972 a comparable error was made by the County Superintendent of Schools with respect to reassignments from this same school area, as pointed out in Hay-mart v. Freiberger, supra.


author: KENNEDY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Randel Ray CLEVELAND, Defendant-Appellant.
    No. KCD 30222.
    Missouri Court of Appeals, Western District.
    June 11, 1979.

      Jerry V. Venters, Jefferson City, for defendant-appellant.
    John Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   KENNEDY, Judge.

A jury convicted Randel Ray Cleveland of felony-murder. He was duly sentenced in accordance with the verdict to life imprisonment by the Department of Corree-tions. He appeals to this court. We reverse and remand for reasons hereafter explained.

According to the state’s evidence, defendant was the driver of the escape car used in the June 12, 1977, robbery of a liquor store in Jefferson City, during the course of which one Lawrence Micke, the proprietor of the store, was killed.

The principal in the robbery and murder was Lee Roy Shockley who entered .the store and undertook to rob Micke and his son, Keith Lawrence Micke, at gunpoint. Shockley began firing when the elder Micke struck him in the head with a bottle of whiskey. Micke was fatally wounded.

Defendant, testifying in his own behalf, denied participation in the robbery. He called Shockley as a witness, who testified that it was not defendant who was the driver of the car for the Warehouse Liquors robbery, but another friend of his, by the name of “Dave”. Shockley admitted his role in the robbery and murder. He had been convicted of the offense and was in prison at the time of trial.

Other facts will appear in the course of the opinion.

Cross-examination of defendant about prior criminal acts of which he had not been convicted.

Defendant on cross-examination admitted prior convictions for burglary, forgery and escape. He was then asked about the following other crimes of which he had not been convicted:

1. “. . . You and Mr. Shockley both escaped from [Kettle Marine Correctional Institute in Plymouth, Wisconsin] about the 26th of May 1977?” After an objection was overruled, defendant admitted the escape.
2. . . Is it not a fact that you committed the armed robbery at a Mill Street Market in Festus-Crystal City area on May 30,1977?” Defendant admitted he had done so, and, in response to other questions, that he had done so in concert with Lee Roy Shockley.

(Proof of the same two crimes was later made by cross-examination of defendant’s witness, Lee Roy Shockley — of which more later.)

Defendant was then asked about two robberies in Jefferson City — one at the Seven-Eleven Liquor and Sundries Store on June 3, 1977, and the other at the Apeo Service Station on June 10. Defendant denied both these offenses. No objection was made to the questions about the Jefferson City robberies, and no complaint is made about them on this appeal.

Defendant does complain, however, of the cross-examination of defendant and of defendant’s witness, Lee Roy Shockley, about the Wisconsin prison escape and of the Fes-tus-Crystal City robbery. The point must be sustained upon the authority of State v. Dunn, 577 S.W.2d 649 (Mo. banc 1979); decided during the pendency of this appeal.

The state does not contend that proof of the crimes inquired about was admissible to prove defendant’s guilt of the instant offense. Any such argument would have been unavailing under State v. Reed, 447 S.W.2d 533 (Mo.1969), and State v. Spray, 174 Mo. 569, 74 S.W. 846, 847, et seq. (Mo.1903). It claims instead that it was proper to prove such crimes by defendant’s admissions upon cross-examination as affecting his credibility as a witness, citing State v. Foster, 349 S.W.2d 922, 925 (Mo.1961). It is to be noted that the subjects of the cross-examination were not criminal convictions but criminal acts of which defendant had not been convicted. There would be no question about the propriety of the former. § 491.050, RSMo 1969; State v. Dunn, supra at 651.

In Dunn, the defendant was being tried for stealing a motor vehicle, and on cross-examination was asked if on a certain date in St. Louis County he had stolen property from an automobile. Even though defendant answered the question in the negative, our Supreme Court held the allowance of the question was an abuse of discretion and therefore prejudicial error.

Under Dunn, the allowance of cross-examination about prior acts of crime, and other misconduct, and the extent of such cross-examination, is left to the trial court’s discretion. The appellate court will not interfere unless that discretion is abused. However, the trial court’s discretionary latitude is greatly narrowed by the following statements in the opinion by the learned Bardgett, J.: “. . . The fact that it is the defendant who is being cross-examined is a factor a court can and should consider in ruling upon an impeaching question as presented here [p. 652] . . Thus, it is seen that although a defendant testifying in his own defense may, as a general proposition, be impeached the same as any other witness, nevertheless, a court should, on objection being made, limit certain cross-examination of a defendant where the cross-examination is technically purely collateral as to general credibility and the nature is such as to impair the defendant’s right to a fair trial on the charge brought against him. [p. 653] . . . Cross-examining a defendant as to alleged prior acts of misconduct, particularly where details are stated and the acts are somewhat similar to the ease on trial, as here, lends itself to the creation of substantial prejudice even though the answers are in the negative. The cases of State v. Foster . . ., State v. Williams . . ., and State v. Summers . . ., noted in the excerpt from the court of appeals opinion, do not require a trial court to permit all cross-examination of a defendant as to prior acts of misconduct and do not preclude an appellate court from determining that the specific questioning was erroneous and constituted prejudicial error.” [p. 653].

We will first take up the cross-examination testimony of defendant about his escape from the Wisconsin prison. Actually, Dunn does not directly rule this particular evidence, because the crime of escape is not similar to the offense of armed robbery or of felony-murder for which defendant was being tried . . and the court noted in Dunn, as pointed out above, that the crime there inquired about was similar to the offense there being tried. That similarity gave even the question, let alone any admission, a particularly poisonous effect.

We do not think, though, that our Supreme Court intended to say that similarity was the only factor to be considered in allowing or excluding such evidence. The learned men who have considered the subject identify, as another limiting factor, the relevancy of the criminal conduct to impeach the veracity of the witness. State v. Miller, 485 S.W.2d 435, 441 (Mo.1972); State v. Williams, 492 S.W.2d 1, 7 (Mo.App.1973); 3A Wigmore, Evidence § 982 (Chadbourne rev. 1970). By this test, evidence of escape from confinement must be ruled out, for it only indirectly and remotely bears upon one’s disposition to tell the truth under oath.

We hold, therefore, that the trial court exceeded its discretion in allowing cross-examination of the defendant about his escape from prison.

The evidence of the Festus-Crystal City robbery was of course similar to the one now on trial, right down to the point of defendant’s association with Shockley. This evidence is specifically condemned by Dunn. Its admission was an abuse of dis-eretion, to use the Dunn terminology, and therefore prejudicial error.

The mischief of evidence of prior criminal acts offered for impeachment of the defendant witness is that the jury will not confine it to its intended purpose of impeachment. They will consider it as evidence of the defendant’s bad character and thus probative of guilt of the main offense. Every lawyer knows the stunning effect of evidence of the commission of prior crimes by the defendant. State v. Lee, 486 S.W.2d 412 (Mo.1972). (In this case, MAI-CR 3.58 was given, limiting to impeachment the purpose for which conviction of an offense could be considered. There is no similar instruction in MAI-CR for evidence of the commission of an offense, and no such instruction was given. We do not mean to say that such an instruction would have cured the error.)

Furthermore, proof of, or a question about another crime introduces into the case a collateral matter which will inevitably distract from the main issue in the case. Because it would be intolerably time-consuming and confusing, it is not allowable to go fully into the circumstances of the other crime. And yet is it fair only to strike the blow, “hit-and-run” fashion, and leave the wound to fester? And if time would permit, and if confusion could somehow be avoided, could the defendant be prepared to meet every accusatory question which the prosecutor might elect to ask? (Of course, if a conviction has resulted, then the matter presumably has been fully gone into and is settled.) 3A Wigmore, Evidence § 979 (Chadbourne rev. 1970).

Thus Dunn with good reason places the prosecutor upon rather a short tether in cross-examining the defendant about the commission of unconvicted crimes. Dunn says the inquiry may not be made about similar crimes. We now add that another limiting factor upon the trial court’s discretion is the tendency of the offense to show a liar’s disposition, even though the offense inquired about may have been dissimilar to the one on trial. Dunn does not, however, remove the matter entirely from the trial court’s discretion, and announces no rigid exclusionary rule. In some cases, depending upon the posture of the trial and the issues, the cross-examination condemned in Dunn and in the present case might be permissible. See, for example, State v. Moore, 581 S.W.2d 873 (Mo.App.1979).

Proof of defendant’s prior criminal acts for impeachment by extrinsic evidence.

Defendant also says that it was error to allow evidence by cross-examination of defendant’s witness, Lee Roy Shockley, that witness Shockley and defendant together had escaped from the Wisconsin prison and that they together had committed the Fes-tus-Crystal City robbery.

The complaint is not that the character of defendant’s witness, Shockley, was thus denigrated by impermissible proof and the value to defendant of his testimony undermined. Defendant’s complaint about the testimony of Shockley is that it proved other criminal acts by defendant.

Defendant did not object to these questions, but he says that, in view of the court’s ruling on his earlier objections to the same testimony during the cross-examination of defendant, that an objection would have been useless. He says he is not required to make a useless objection in order to preserve the matter for review by this court. The principle is sound, State v. Sanford, 317 Mo. 865, 297 S.W. 73, 77 (Mo.1927), and we have applied the same in considering the cross-examination of defendant with respect to the Festus-Crystal City robbery. We will not pause to determine whether the principle is applicable to the present situation, but will consider the point for guidance in another trial of the defendant.

It has always been the rule that extrinsic evidence could not be allowed to prove prior unconvicted criminal acts of a witness, for impeachment, and that rule has stronger reasons where defendant is the witness sought to be impeached. State v. Leonard, 182 S.W.2d 548, 551 (Mo.1944); State v. Barker, 296 Mo. 51, 246 S.W. 909, 910 (Mo.1922); 98 C.J.S. Witnesses § 506 (1957). As we have already said, the proof was not allowable on the issue of defendant’s guilt or innocence. Therefore,.to allow Shockley to testify of defendant’s crimes was not allowable for any purpose.

The attorney general says, though, that the evidence was admissible to impeach the witness Shockley himself.

As to the Festus-Crystal City robbery, the witness had been convicted of it and it was permissible to prove the conviction as impeaching his credibility — § 491.-050, RSMo 1969 — but that does not justify the additional proof of defendant’s participation in the crime. Proof of the witness’s conviction could have been made without mentioning defendant’s participation in it.

If proof of the Wisconsin escape was admissible to impeach witness Shockley, which is doubtful (see n. 7), once again that does not justify proof of defendant’s participation therein, and its allowance would be prejudicial error.

Two other of defendant’s points of error should perhaps be noticed.

Evidence of conviction of confederate.

Witness Shockley was permitted to testify that he had pleaded guilty to the offense for which defendant was now being tried. Defendant says it was error to permit this, citing many cases which hold it is improper to tell the jury that an accomplice has been convicted of the crime. In one such case, State v. McCarthy, 567 S.W.2d 722, 724 (Mo.App.1978), it is said: “The basic rationale underlying the holdings that this is prejudicial error is that it is irrelevant and incompetent because it infers that since the confederate was guilty the defendant must therefore be guilty and violates the defendant’s right to be tried on his own.”

None of defendant’s cases reaches our present situation where the confederate himself is testifying for defendant and the witness’s commission of the crime is affirmatively brought out by defendant. The state claims it has an unconditional right to show convictions of crime for the purpose of impeachment, § 491.050 RSMo 1969 — but however that may be, we see no prejudice where defendant’s own theory is that the alleged confederate did indeed commit the crime, but without the defendant’s participation.

Witness in restraints.

Appellant complains of witness Shockley’s having been brought into the courtroom as a witness for defendant, with his hands cuffed to a leather belt. The state points out that the defendant had not objected when Shockley twice earlier was brought into the courtroom in the same restraints, for identification, and argues that defendant had thereby waived the objection. We do not decide the waiver question, preferring to deal with the matter by another approach.

Appellant’s complaint presents a troublesome question. The sight of chains can only have been dramatic to a jury unaccustomed to seeing people in shackles. They are a visual demonstration of the court’s lack of confidence in the witness. Physical restraints also impair the mental processes. State v. Rudolph, 187 Mo. 67, 85 S.W. 584, 589 (Mo. banc 1905); State v. Jones, 556 S.W.2d 736 (Mo.App.1977). See also State v. Borman, 529 S.W.2d 192 (Mo.App.1975) (and cases cited therein) and State v. Wendel, 532 S.W.2d 838 (Mo.App.1975), concerning the shackling of the defendant himself.

It is, of course, the responsibility of the trial judge to maintain order and safety in the courtroom and to prevent the escape of the prisoner witness, and he must be allowed a very wide discretion in the measures he takes to accomplish these ends. Russell v. State, 494 S.W.2d 30, 38 (Mo.1973); State v. Borman, 529 S.W.2d at 194. Although there was no showing of untoward behavior during the trial, the court noted that witness Shockley was serving a penitentiary sentence for armed robbery and murder. The fact of his escape from the Wisconsin prison was also known to the trial judge.

We cannot determine from these meager facts that there was any abuse of discretion.

Points of error not considered.

Defendant’s other points of error are clearly ruled by cases already in the books, and are without merit. Our discussion of them would be of no help to court or counsel upon another trial, and would add nothing to the literature.

For reasons discussed above, the judgment of conviction is reversed and the cause is remanded for a new trial.

All concur.

      . See State v. Dunn, 577 S.W.2d 649 (Mo. banc 1979); which holds that even a question such as this, although answered in the negative, is impermissible and may cause a reversal upon appeal. Defendant’s objection to the question would only aggravate the prejudicial effect of the question. The prosecutor should, it seems, secure a preliminary ruling by the court outside the jury’s hearing before asking a doubtful question of this kind.

      . 349 S.W.2d 922 (Mo.1961).

      . 492 S.W.2d 1 (Mo.App.1973).

      . 506 S.W.2d 67 (Mo.App.1974).

      . Compare cases which hold that proof of general bad character is not admissible to impeach a witness, but only his reputation for truth and veracity. State v. Spencer, 472 S.W.2d 404 (Mo.1971); State v. Lora, 305 S.W.2d 452, 455 (Mo.1957); State v. Williams, 337 Mo. 884, 87 S.W.2d 175, 180-184 (Mo. banc 1935).

      . See Rule 608, Federal Rules of Evidence: “Specific instances of the conduct of a witness . may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness.” The Advisory Committee’s Note to the United States Supreme Court version of the Rules of Evidence on this provision call attention to Rule 403, saying: “Also, the overriding protection of Rule 403 requires that probative value not be outweighed by danger of unfair prejudice, confusion of issues, or misleading the jury . These rules recognize in this area two competing considerations which the trial judge must balance. On the one hand, the jury should be permitted to know facts which enable them to evaluate the defendant witness’s testimony; on the other hand, the defendant should not be unfairly prejudiced upon the issue of his guilt or innocence of the main offense. Cogent evidence on the first issue may be excluded by the second consideration. And so forth.

      . Anent the escape as impeaching Shockley: State v. Dunn, supra at 652 says: “Even so, questions put to defendant’s witness to discredit such witness and which deal with purely collateral matters can prejudice a defendant and cause the reversal of a criminal conviction.” The opinion cites State v. Spencer, 472 S.W.2d 404 (Mo.1971) and State v. Miller, 485 S.W.2d 435 (Mo.1972). In Miller, the court observed that the acts inquired about, even though criminal, “still must affect his credibility” (485 S.W.2d at 441). In Miller, and also in State v. Lora, 305 S.W.2d 452, 455 (Mo.1957), it is noted that the witness whose cross-examination was held to be prejudicial error was an important witness to defendant’s defense.


author: ■SHANGLER, Presiding Judge.

text:
    Donald F. TANNER, Appellant, v. Donald K. GASH, Respondent.
    No. KCD 30229.
    Missouri Court of Appeals, Western District.
    June 11, 1979.

      Charles C. Shafer, Jr., Kansas City, for appellant.
    Larry E. Sells, Shaffer, Gibson & Cox, Kansas City, for respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   ■SHANGLER, Presiding Judge.

The plaintiff Tanner asserts a civil cause of action for an attorney fee against the defendant Gash on the breach of § 561.460, RSMo 1969, which renders it a crime for a maker, with intent to defraud, to issue a check for a past obligation with knowledge that the account has not sufficient funds for payment. The circuit court dismissed the petition and the plaintiff brings appeal.

The petition alleges that defendant Gash caused a check for $5,000, in settlement of past obligations, to be drawn against the corporate account of Kimberly Industries at the Roeland Park State Bank & Trust Company. The check was presented by the plaintiff but was dishonored by the bank on an order to stop payment and because the account against which the cheek was drawn was without sufficient funds.

Tanner resorts to the criminal statute for a right of action on the belief that he is otherwise without civil recourse against Gash who [he argues but does not plead] merely used a corporate check for a personal transaction. Thus, whereas, the criminal statute condemns the issue of any check with intent to defraud, the law on commercial paper [§ 400.3-802] allows an action only on the dishonored instrument or the obligation — so [according to contention] as to have enabled a cause of action had the check been that of Gash rather than of the corporation. This premise neglects the remedy of the Code against an unauthorized signatory of an instrument taken in good faith. §§ 400.1-201(43) and 400.3-404. It neglects also the obvious common law action available to the plaintiff on the underlying obligation.

The theory of the petition and the argument are tendentious; they disguise the one true purpose — to recover an attorney fee. The petition does not seek to recoup the check but only judgment for the cost to retain “expensive counsel” on account of “defendant’s action.”

A set of conduct may at once constitute a criminal offense and a civil wrong subject to private redress. Parker v. Lowery, 446 S.W.2d 593, 595[5] (Mo.1969); 1 Am.Jur.2d, Actions, § 57. A criminal statute, however, is a public enactment and does not invest a civil remedy for private injury unless that purpose clearly appears in the expression of the statute. Christy v. Petrus, 295 S.W.2d 122, 126[6] (Mo. banc 1956). An attorney fee, in any event, is not a usual consequence of private injury and does not follow as of course. Burchett v. Burchett, 572 S.W.2d 494, 504[14-16] (Mo.App.1978). Were the validity of the petition as a recovery of a private right based on a criminal statute otherwise assured, the chosen theory presents no justifiable claim because § 561.460 from which the assertion of right derives makes no provision for an attorney fee — the only subject of the petition — or other private redress. Christy v. Petrus, supra, 1. c. 126[7].

The judgment of dismissal is affirmed.

All concur.

      . The petition does not say whether the past obligation was to Tanner from the Kimberly Corporation [as the brief of defendant Gash asserts] or from Gash personally [as the brief of plaintiff Tanner asserts]. Nor, for that matter, does the petition allege the payee — whether Gash or another. The check was not made part of the record on appeal.

      . The petition does not allege the capacity of Gash as maker, whether as the corporate agent —actual, implied or apparent — of Kimberly, or simply for his own behalf. Once again, the check was not made part of the record on appeal so we do not know what the intrinsic instrument shows.

      .We surmise, if not from an express pleading then from the tenor of the briefs and arguments, that Gash was an authorized corporate signatory.

      . We assume the petition attempts a claim in tort. The general rule allows a tort action, independently of any right at common law, where a breach of the criminal statute causes a special private injury — and where the intent of the criminal law to allow such a recovery is clear. The rationale is one of duty: that is, a criminal statute imposes a duty to the public protection which, when breached and proximately causes specific private injury, does not preclude a civil action for damages even though violation imposes a public penalty. Christy v. Petrus, supra; Parker v. Lowery, supra; State v. Taylor, 335 Mo. 460, 73 S.W.2d 378, 380 (banc 1934) [dictum]; Wells v. Welch, 205 Mo.App. 136, 224 S.W. 120, 122[4, 5] (1920); 1 C.J.S. Actions § 11; 1 Am.Jur.2d, Actions § 57.


text:
    Anne M. McMANUS, Plaintiff-Respondent, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Defendant-Appellant.
    No. KCD 30244.
    Missouri Court of Appeals, Western District.
    June 11, 1979.

      Michael H. Maher, Kansas City, for defendant-appellant.
    Eileen S. Sullivan, Kansas City, for plaintiff-respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   KENNEDY, Judge.

We reverse the trial court’s judgment for $3,036 in favor of plaintiff’s claim upon a group medical policy issued by defendant The Equitable Life Assurance Society of the United States. The judgment was for an amount paid or incurred for services rendered to plaintiff’s deceased husband by Brothers of Mercy Extended Care Facility during a period beginning April 3, 1972, and (with one intermission of 27 days) ending with his death on November 30, 1972.

The case turns upon whether the Brothers of Mercy Extended Care Facility was a “hospital” within the meaning of the policy. If it was a “hospital”, the expenses were covered by the policy and Equitable is liable for the amount of the judgment; if it was not, then the expenses were not covered and Equitable is not liable. Since the term “hospital” is defined in the policy, we must look there and nowhere else for the definition, for the definition is a part of the contract. 44 Am.Jur.2d Insurance § 1624 (1969). It is there defined as follows:

The term “hospital” means only a legally constituted and operated institution having, on the premises, organized facilities (including organized diagnostic and major surgical facilities) for the care and treatment of sick and injured persons by or under the supervision of the staff of legally qualified physicians with a registered professional nurse (R.N.) on duty, or on call, at all times. In no event, however, will the term “hospital” include any charges incurred in connection with confinement to, any institution or part thereof which is used principally as a rest or nursing facility or a facility for the aged, chronically ill, convalescents, drug addicts or alcoholics, or as a facility providing primarily custodial, educational or rehabilitory care. (Emphasis supplied.)

There are at least two points at which Brothers of Mercy Extended Care Facility does not qualify as a hospital under this definition. It did not have “organized major surgery facilities”, and it was “used principally . . . as a facility for convalescents or as a facility providing primarily . rehabilitory care.” This is clearly established by the evidence and there is no evidence to the contrary.

The evidence of the character of Brothers of Mercy, as we shall hereafter call the facility, is contained in a written questionnaire submitted by Equitable and answered in behalf of Brothers of Mercy by its personnel chief, Kathleen Allen; in the deposition of its administrator, Mr. Ainsworth; and in a Stipulation of Facts entered into by the parties. From these sources, we learn that the facility was licensed by the State of Missouri as a professional nursing • home under Chapter 198, RSMo 1969. In the questionnaire, it describes its “type” as “extended care facility”, and its “type of license” as “skilled nursing facility”. It has facilities for “Rehabilitation and some ambulatory care,” and is “For recovery following acute condition,” rather than for “short-term confinement for acute care,” according to the questionnaire.

Mr. Ainsworth, the administrator, said that the following statement, contained in a brochure published by the facility, accurately stated its basic purpose: “Through our restorative services the post-hospital patient may receive the rehabilitative care needed prior to his transfer to his own home or to a facility designed for long-term care.”

The facility provides various types of therapy — occupational therapy for strengthening and correcting alignment of muscles, physical therapy for gait training to improve patient mobility and muscle strength, speech therapy, and recreational therapy. However, it is not equipped for any type of surgery.

We see, therefore, that Brothers of Mercy is not a hospital within the meaning of the policy, and the plaintiff may not recover under the policy.

Plaintiff says the language is ambiguous, and that the ambiguity is to be resolved in plaintiff’s favor. That ambiguities in insurance policies are to be resolved against the insurance company is a correct statement of contract construction. United States Fidelity & G. Co. v. Safeco Insurance Co. of America, 522 S.W.2d 809 (Mo. banc 1975). Plaintiff argues that since the contract definition of hospital did not specifically exclude “extended care facility”, having specifically excluded certain other facilities by name, the “extended care facility” is included.

We, however, find no ambiguity in the contract language as it applies to Brothers of Mercy. The exclusions are stated in the policy in terms of the primary or principal function, or services rendered, or which the facility is equipped to render, rather than by the name which the facility might adopt for itself. It might have called itself a hospital, but it still would not come within the policy definition, since it had no organized facilities for major surgery, and its principal service was convalescent and rehabilitative care to the patient.

Since all the evidence is in the form of a document, a deposition, and a fact stipulation, there is no occasion for deference to the trial court’s fact findings, which is based upon his superior opportunity to judge the credibility of witnesses. Giokaris v. Kincaid, 331 S.W.2d 633, 635 (Mo.1960); Western Casualty & Surety Co. v. First State Bank, 390 S.W.2d 913 (Mo.App.1965). It is a matter of the application of principles of law to given facts, which presents a question of law rather than a question of fact. We believe in this instance the trial court has erroneously applied the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

The judgment is reversed, with directions to enter judgment for defendant-appellant.

All concur.

      . The term “extended care” is evidently taken from 42 U.S.C.A. § 1395x, which uses the terms “extended care services” to mean certain services furnished to a patient by a “skilled nursing facility”.

      . Plaintiff for this point cites Hoover v. National Casualty Co., 162 S.W.2d 363 (Mo.App.1942), as an application of the expressio unius rule, but we do not find the case in point. There the “private pleasure type automobile . . . (excluding motorcycle and farm machinery)” was held to include a company-owned bus!


text:
    Billy Joe MASSEY, Appellant, v. Darrell Ray HAMILTON and Lawrence E. Hawkins Contractors, Inc., Respondents.
    No. KCD 30269.
    Missouri Court of Appeals, Western District.
    June 11, 1979.

      James C. Butcher, Columbia, for appellant.
    Roland P. Walker, Columbia, counsel for respondent, Lawrence E. Hawkins Contractors, Inc., only.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Direct appeal from summary judgment.

Review of this cause is made pursuant to Rule 74.04(c). Because summary judgment is of such a severe nature and rests upon the premise that as a matter of law, no issue of fact exists, when the review of such action is made, it gives the party against whom summary judgment was entered every accord in the matter. See Allen v. St. Luke’s Hospital of Kansas City, 532 S.W.2d 505 (Mo.App.1975), appeal dismissed 429 U.S. 804, 97 S.Ct. 37, 50 L.Ed.2d 65 (1976); that such review is made as in any other bench tried case, see Kerr v. Grand Foundries, Inc., 525 S.W.2d 783 (Mo.App.1975).

Appellant presents two points on this appeal, alleging trial court error in granting summary judgment when an issue of genuine fact existed and further, the court erred in granting summary judgment because separate respondent Lawrence Hawkins did not show by unassailable proof that there was any genuine issue of fact. For purposes herein, both points raised by appellant can be taken up and considered together, for they address the same general question.

The original petition herein rests upon a claim for personal injuries arising from a collision between appellant while on his motorcycle, and a truck owned by Roger Hamilton, but at the time of the collision, being operated by respondent, Darrell Hamilton. The collision occurred July 3, 1975.

Roger and Darrell Hamilton are brothers and their residence is in the state of Kentucky. The record fails to reflect the exact date that they were hired by respondent, Lawrence E. Hawkins Contractors, Inc., to work at the Mark Twain Mine, seven miles north of Columbia, Missouri. It can be assumed from the briefs and record that both had been hired and on the payroll, for on the date of the collision, the evidence shows both had received their wages from their employer.

At the time of initial employment, respondent Darrell Hamilton, was hired by respondent Lawrence E. Hawkins Contractors, Inc., and the employer paid mileage to the employee to come to Missouri from Kentucky. The brother, Roger, tagged along, hopeful of being employed, and his employment subsequently occurred. The brothers took up temporary residence in a trailer in Columbia, Missouri.

During the period of employment, the truck owned by Darrell Hamilton was used by him for the benefit of the employer to run errands for spare parts and other duties during the work day. Darrell Hamilton had no valid Missouri operator’s license and there was no insurance on the truck. The evidence revealed that the employer made no inquiry of licensure or insurance, but at the time of initial employment, he merely paid mileage to the employees to defer the newly hired employees’ initial expenses to the job site.

The events of the day, July 3, 1975, must be reviewed in resolving the issues raised by appellant.

Darrell and Roger Hamilton went to work. At approximately 4:30 p. m., they ended their work day and were paid their wages. They departed the job site, went to their trailer to change clothes and to clean up in preparation for their trip to Kentucky to celebrate the 4th of July holiday weekend. Their plans included picking up two fellow employees for the purpose of giving these fellow employees a ride to their fellow employees’ home in the State of Illinois. While en route to pick up their co-workers, the collision occurred.

The petition herein joined respondents as co-defendants. Darrell Hamilton failed to file a timely answer and is in default. The petition alleged that Darrell Hamilton was at the time of the collision . the duly authorized agent, servant and employee of defendant Lawrence E. Hawkins Contractors, Inc., acting within the scope of his employment and authority.”

The record refers to the depositions of both respondents wherein disclaimer is made that Darrell Hamilton was, at the time, within the scope of his employment. The mere denial of such fact by the respondents would not, unto itself, justify the entry of a summary judgment, but rather, the evidence reflecting the respective roles of both respondents at the time of collision is the controlling factor.

The record clearly shows at the time of the collision Darrell Hamilton and his brother were participating in acts in furtherance of their exclusive personal plans and not engaged in any act at the direction of their employer, nor was the employer the direct or indirect beneficiary of the employees’ plan to travel to Kentucky for a holiday weekend.

Both brothers had ended their .work day, been paid their wages, proceeded to their temporary residence, changed clothes and made preparations for a personal trip home for the holiday weekend.

One standard to be applied in determining the employer or master’s liability for the tortious conduct of his employee or servant and the one most applicable to the facts herein, is the so-called “going to or from rule”. See Gardner v. Simmons, 370 S.W.2d 359, 364 (Mo.1963) wherein the Supreme Court held, “[Ojrdinarily an employee going to or returning home from his place of employment is not engaged in the prosecution of his employer’s business during either trip.”

This standard, however, is not absolute and the law will not permit the employer or master to escape his responsibility if the employer is benefited during the course of the coming or going. See Pyles v. Bos Lines, Incorporated, 427 S.W.2d 790, 794 (Mo.App.1968).

“However, the test to be applied in determining whether an employer can be held liable for an employee’s act is, not whether said act was done during the term of the employment, but whether it was committed in the prosecution of the employer’s business.” loe. cit. 794

After declaring the above, the court went further in saying,

“ ‘. . . If at said time the employee has departed from his work to accomplish some purpose of his own, not connected with his employment, the relation of employer and employee is thereby temporarily suspended and the master is not liable for his employee’s acts during the period of suspension . . .’”

The further argument of appellant that “[Wjhere one of two innocent persons must suffer for the wrong of a third, the loss should fall on the one who enabled the third person to do the wrong,” lacks necessary merit because it incorrectly presumes that the employer in this case had the means to either prevent the trip by the employees, or in the alternative, that in some manner the employer was a party to the trip by the employees. There is nothing in the record to even suggest, let alone establish, validity for such a presumption.

As to the fact that the employer herein was and presumably still is engaged in employing people in various parts of the country, and as a part of that employment pays said employees mileage to reach the job site upon initial employment, does not force the conclusion that the employer stands responsible for the tortious conduct of his employee under each and every situation. To arrive at such a conclusion would, in fact, make employers the insurers of their employees. This is not the intent of an employer-employee relationship, but rather, such relationship is based upon the interaction of each to the other in carrying out the design and purpose of the employer while at the same time affording employment to the employee.

There is no evidence in this case to establish the relationship of employer-employee or master-servant relationship between respondents at the time of the collision. Quite the contrary, the evidence clearly establishes the employer-employee relationship had been suspended. The employees were exclusively carrying out the design of their own personal plans. The employer benefited neither directly nor indirectly by the acts of the employees at the time of this collision. Under the rule of Pyles v. Bos Lines Incorporated, supra, the acts of the employees herein were not done to further the prosecution of the employer’s business.

As to appellant’s claim against defaulting respondent Darrell Hamilton, appellant is left to his remedy by virtue of the default, but as to the issue of employer-employee or master-servant relationship between respondents, there was no question of fact to be resolved as a matter of law between the parties on this question. The action by the trial court was for all reasons proper and the judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Gerald D. PETERSON, Appellant.
    No. KCD 30270.
    Missouri Court of Appeals, Western District.
    June 11, 1979.

      Robert G. Duncan, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Earl W. Brown, III, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   CLARK, Judge.

Gerald D. Peterson appeals from his conviction of burglary second degree and stealing. Reversed.

The case against defendant was based on circumstantial evidence consisting of stolen articles and burglary tools. In this appeal defendant contends that the incriminating evidence was obtained by unlawful search and seizure in violation of rights protected by the Fourth Amendment and that the trial court erred in failing to suppress such evidence in response to defendant’s motion.

A summary of the evidence presented at the suppression motion hearing is necessary to define the legal issues. That evidence consisted of a stipulation of facts filed by counsel and the testimony of witnesses called by defendant. In certain particulars hereafter identified, the evidence was conflicting. Facts not in controversy follow.

Between August 29 and September 1, 1975, the Poucher residence in St. Joseph was burglarized and personal property including a coin collection was taken. On the suggestion of an informant, officers conducted a search of a Kansas City residence owned and occupied by one Hamon. The search was made during early morning hours on September 9, 1975. Hamon gave his consent to the search. Although a search warrant had been obtained, it was neither served upon nor disclosed to Ha-mon. At the time of the search, defendant was not a suspect and was not present.

Among the areas of the Hamon residence searched was a basement room accessible from inside the house through an unlocked door and from an outside door which was locked. Hamon informed the officers that the basement room was rented to the defendant, that defendant had recently been in the room and that defendant carried a key to the outside door. Stolen articles and burglar tools were seized after a search of the basement room.

As a result of evidence obtained from the Hamon residence, a warrant was issued for defendant’s arrest. The evening of September 9, 1975, a parked automobile was located matching a description broadcast of defendant’s car. After a neighborhood investigation, defendant was found in a nearby apartment and was arrested.

At the time of defendant’s arrest, his automobile was legally parked on a residential street and was locked. The police ordered the car towed to an impoundment area and obtained the keys from defendant to facilitate the towing. Before the car was moved, an officer conducted an inventory search and identified for this purpose several items which included a notebook found on the rear seat of the car. The officer read through the notebook and found that it contained a listing of coins by year, denomination and value corresponding with the inventory of coins reported stolen in the Poucher burglary.

After defendant’s automobile was towed to the police garage, a warrant to search the car was obtained based on an affidavit which recited the contents of the notebook and the other events described above. A search of the vehicle pursuant to the warrant resulted in the recovery of numerous coins and coin containers, all identified as the property of Poucher and missing after the burglary.

Defendant’s motion to suppress the evidence seized from the basement room at the Hamon residence and from defendant’s automobile was overruled. The case proceeded to trial before the court, defendant was found guilty and this appeal followed.

Defendant first challenges the validity of the warrant issued for the search of the Hamon residence on the grounds that the application for the warrant failed to comply with Sections 542.271 and 542.276 RSMo 1969 and that neither the reliability of the undisclosed informant nor the information conveyed by him through an intermediary was shown. These defects in the process which generated the warrant are apparent but do not present issues for resolution in this ease. Under the agreed facts, the warrant was never executed and its existence was unknown to Hamon until after the search had been concluded and the officers had left the premises with the articles seized. Validity of the warrant is immaterial.

As the police officers failed to employ and rely on the warrant as the basis for their entry and search of the residence, availability to the state in this criminal prosecution of the evidence seized depends on a valid consent to the otherwise impermissible intrusion. The record, while not devoid of suggestive circumstances, does not permit a conclusion that Hamon’s consent to the search was involuntary or coerced. The pertinent inquiry is as to Ha-mon’s authority to consent to the search of the basement room and defendant’s standing to assert a constitutional right to protection against the search without a warrant and without defendant’s consent.

Evidence presented to the trial court on the motion to suppress was in conflict regarding defendant’s status as a tenant in the basement room. While the parties did purport to stipulate as to relevant facts, the witnesses in their testimony did not adhere to the stipulation. Such stipulation included the following:

“13. Detective Austin testified at the preliminary hearing that * * * [Ha-mon] stated that defendant had not used the room for over two months and had not paid rent until one week prior to September 9, 1975 * * *

Significantly, the stipulation did not purport to conclude the issue of defendant’s status as a tenant, only the fact of Austin’s previous testimony. Indeed, when Austin subsequently testified at the suppression motion hearing conducted at the request of the trial court, his evidence was in apparent contradiction of the stipulation. He there related Hamon’s statement as being to the effect that defendant had ceased being a rent-paying tenant a month and a half to two months before and defendant’s recent access to the room was only on Hamon’s consent that defendant could “store some stuff there”. This latter version was confirmed by the testimony of detective Reed.

Hamon, called by defendant to testify in support of the motion to suppress, denied making the statements described by the officers and stated that defendant was, at the time of the search, a tenant in the basement room, had not vacated the premises and was current in his rent. In explanation of evidence which indicated Hamon’s access to the room, he acknowledged entry to the room on occasion to “look around”.

The warrantless search of a private dwelling can survive constitutional inhibition only upon a showing that the surrounding facts brought the search within one of the exceptions which excuse the requirement of the warrant. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). Initially, the entry of the officers was validated by the consent of Hamon who admitted them and permitted the search. As to the basement room, however, defendant contended by his motion that the consent was ineffective and it was therefore incumbent upon defendant to show a sufficient interest in the premises to establish himself as a person aggrieved and as one entitled to a reasonable expectation of privacy. Rakas et al. v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); In re 487 S.W.2d 502 (Mo. banc 1972).

The evidence, as previously noted, presented an issue of fact as to defendant’s use, occupancy and tenancy in the basement room. The only direct evidence was that of Hamon and, if believed, would have established defendant’s interest in the premises sufficient to avoid the warrantless search of the room and invalidate for evidentiary use the articles seized. Hamon’s testimony was, however, impeached by testimony of the officers who related an earlier and contradictory statement by Hamon describing defendant’s occupancy and rent-paying status.

Although the trial court here made no express findings of fact, the order overruling defendant’s motion to suppress the evidence seized from the basement room must necessarily,have been premised on disbelief of Hamon’s testimony. The trial court is, of course, entitled to accept or reject on grounds of credibility the testimony of any witness and such belief is binding on this court. State v. Oldham, 546 S.W.2d 766 (Mo.App.1977); State v. Alewine, 474 S.W.2d 848 (Mo.1971). Upon failure of Ha-mon’s testimony, defendant having not been present at the time of the search and having otherwise shown no interest in the premises, he lacked standing to invoke Fourth Amendment rights or to complain that Hamon’s consent to the search was deficient. The articles seized from the basement room were therefore properly received in evidence and no error is found in the trial court’s order overruling the motion to suppress such evidence.

Defendant next contends that evidence seized from his automobile, although preceded by a warrant authorizing the search, was nevertheless the product of an unlawful search because based on an initial intrusion which was unlawful. As probable cause to acquire the warrant was generated solely from the products of the inventory search preparatory to towing the vehicle, legitimate prosecutorial acquisition of the incriminating evidence depends upon an initially valid impoundment of the vehicle which created sanction for police inventory of the contents and the succeeding discovery of tools and fruits of the burglary. Of course, ultimate recovery of contraband does not retroactively validate original entry into the vehicle without a warrant. Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927). Applicable standards controlling admission of evidence obtained from defendant’s car are therefore those imposed in warrantless searches of vehicles despite the warrant procured here after the contents inventory had been made.

Consistent with the protection afforded by the Fourth Amendment, warrant-less searches are prima facie invalid and may be subsequently condoned only if shown to have been justified by reason of specific exceptions. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The burden is on the state to justify failure to procure a warrant. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). Searches of automobiles are, in general, subject to the same proscriptions attendant upon warrantless searches of dwellings, Chambers v. Maroney, 399 U.S. 42, 90. S.Ct. 1975, 26 L.Ed.2d 419 (1970); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), although the expectation of privacy is somewhat less in an automobile than in a home. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). The inherent mobility of automobiles and circumstances of public traffic, safety and regulation distinguish the nature of exceptions and specification of exigent circumstances which justify warrantless searches of vehicles. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (moving vehicle transporting contraband); Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (damaged automobile at accident scene); South Dakota v. Opperman, supra (automobile in violation of parking restrictions).

The facts of the subject case severely limit the state’s opportunity to seek justification for the warrantless search of defendant’s automobile on exigent circumstances or exceptional conditions approved under previous Fourth Amendment cases. Defendant’s arrest in the nearby apartment precludes any contention that seizure and search of the car was incident to the arrest. No factual basis was advanced to show probable cause for belief that a search of the car would reveal evidence of the crime nor was there any evidence that were probable cause to be assumed, immediate measures to safeguard potential evidence were needed because of any likelihood that the vehicle would be removed and secreted. Understandably, the state limits its argument on appeal to a contention that the police, having placed defendant under arrest, were under some obligation to arrange for the safekeeping of defendant’s automobile and this, in turn, required the concomitant inventory preliminary to impoundment.

Assuming, arguendo, that circumstances could arise in which the automobile of a suspect placed under arrest would be so located as to be subject to imminent peril of damage or loss and that arresting officers thereupon incur some responsibility to safeguard the arrestee’s property, such were not the facts here. Defendant’s car was lawfully parked on a residential street and was locked as, no doubt, were numerous vehicles of other apartment residents in the neighborhood. In no manner would the evidence support a conclusion that the vehicle or its contents were in any greater circumstance of hazard after defendant’s arrest than before nor was there any showing that the vehicle was obstructing traffic or interfering with public access or private transit. Rather, the inference is inescapable that the proffered concern for defendant’s property was pretextual to justify an otherwise impermissible investigatory search.

Cases cited by the state do not support the inventory search of defendant’s car. South Dakota v. Opperman, supra, involved an unoccupied vehicle impounded by reason of violation of overnight parking restrictions. In United States v. Kelehar, 470 F.2d 176 (5th Cir. 1972), the car was in a restaurant parking lot and was removed by police at the request of the restaurant manager. While Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) may not be as readily distinguished because impoundment of defendant’s car from a parking lot lacked any basis other than the purpose of investigatory search, the sanction was limited expressly to an exterior inspection of tires and paint. The plurality opinion did not approve access to the interi- or of the vehicle even for mere inventory.

In a well reasoned and comprehensive opinion, the Supreme Court of New Jersey in State v. Ercolano, 79 N.J. 25, 397 A.2d 1062 (1979), on facts similar to the case at bar, reviewed development of automobile impoundment-inventory cases and concluded that if there be an “automobile exception” to the Fourth Amendment warrant requirement, the key to the exception lies in the mobility of the vehicle and the impracticality of previously obtaining a warrant under the circumstances then obtaining. (See also State v. Slockbower, 79 N.J. 1, 397 A.2d 1050 [1979] contemporaneously decided). In short, the impoundment which precedes the inventory search without a warrant is justified only if the vehicle is associated with the commission of an offense or the arrest of the defendant or, if the location or condition of the vehicle is such that the safety or interest of the public requires its removal and police intervention is the only viable option.

Assumption by the police of responsibility for safekeeping of an arrestee’s automobile is not, per se, a prohibited activity and may, in appropriate circumstances, provide a laudable service. The practice not to be permitted is employing property protection as a subterfuge to avoid securing a warrant to search for incriminating evidence. If, in fact, the object is to protect the car, the owner may in most instances be able to take reasonable steps to safeguard his property, if permitted, or to contact others to do so for him. In neither option is available because of incapacity or absence, rolling up the windows and locking the doors will generally suffice. Impoundment, towing and inventory of automobiles over objection of the owners in many cases results in greater damage than the value of the property “safeguarded”. United States v. Lawson, 487 F.2d 468 (8th Cir. 1973).

In summary, the uncontroverted facts of this case totally fail to justify impoundment of defendant’s car by the police. The defendant was neither in nor near the vehicle when arrested, no evidence had been brought to the attention of the officers which associated the ear with the offense under investigation, no public interest prompted removal of the car as an obstruction or hazard and no apparent risk of loss or damage to the vehicle required safekeeping measures.

Impoundment seizure of the car having been unwarranted, intrusion for inventory purposes was constitutionally impermissible as was the information derived therefrom. No approbation results from subsequent issuance of the search warrant as probable cause to issue the warrant was acquired from the unlawful inventory intrusion. All evidence seized from defendant’s automobile was obtained in violation of defendant’s Fourth Amendment rights to be secure in his effects against unreasonable search and seizure. Such evidence should have been suppressed and the trial court was in error in failing to sustain defendant’s motion as addressed to the articles so obtained.

As a consequence of the decision here announced, it need not of necessity be concluded that insufficient evidence against defendant remains upon which a submissi-ble case may be made. Coin wrappers and other papers bearing the name or identification of the burglary victim as well as tools importing some inferential relationship to the offense were recovered from the basement room as earlier described. This evidence is available for use by the state. The decision as to sufficiency of such evidence to support a conviction is, under the circumstances here, one appropriately assignable to the trier of the facts. Such distinguishes this case from Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and State v. Basham, 568 S.W.2d 518 (Mo. banc 1978) and requires that the cause be remanded for retrial.

The judgment of conviction is reversed and the cause is remanded to the circuit court.

All concur.


text:
    Kenneth J. STEPHENS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 30279.
    Missouri Court of Appeals, Western District.
    June 11, 1979.

      James D. Worthington, Lexington, for movant-appellant.
    John Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   KENNEDY, Judge.

We affirm the trial court’s judgment denying the 27.26 motion of Kenneth J. Stephens.

Defendant on September 1, 1977, following an earlier guilty plea, was sentenced by the Circuit Court of Lafayette County to two 20-year terms of imprisonment on two counts of armed robbery respectively. The terms were to be served concurrently with each other, but under § 222.020, RSMo 1969, they were required to be served consecutively to a sentence, of which six years remained, which defendant was under at the time of the robberies. Defendant at the time of the robberies was an escapee from the Missouri Department of Corrections.

The movant set forth several grounds for relief in his motion, but on this appeal only one has been briefed. Those not briefed are abandoned. Herron v. State, 498 S.W.2d 530 (Mo.1973); Borman v. State, 528 S.W.2d 502 (Mo.App.1975). The remaining allegation is that § 222.020, RSMo 1969 is invalid because in violation of movant’s Due Process and Equal Protection rights under the Constitutions of Missouri and the United States. If found to be so, presumably we would reverse and remand for the court to exercise discretion in determining whether the two 20-year sentences should run consecutively or concurrently with the sentence which defendant was under at the time of the robberies — or would order them served concurrently as in Anthony v. Kaiser, 169 S.W.2d 47 (Mo. banc 1943).

The question of the validity of the statute as against Due Process and Equal Protection challenges has been decided adversely to movant’s position by the Supreme Court of Missouri in King v. Swenson, 423 S.W.2d 699 (Mo. banc 1968.) A later case, State v. Baker, 524 S.W.2d 122 (Mo. banc 1975) overruled King with respect to its approval of another statute, but its authority is unimpaired with respect to § 222.020, RSMo 1969. We are bound to follow it as the “last controlling decision” of the Missouri Supreme Court. Mo.Const. Art. V, § 2; State v. Hegwood, 558 S.W.2d.378 (Mo.App. 1977).

The judgment is affirmed.

All concur.