author: SNYDER, Judge.

text:
    Barbara T. WILSON, Plaintiff-Respondent, v. Theodore D. McNEAL et al., Defendants-Appellants. The PULITZER PUBLISHING COMPANY, Plaintiff-Respondent, v. Theodore D. McNEAL et al., Defendants-Appellants.
    Nos. 39223, 39264.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 5, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 12, 1979.
    Applications to Transfer Denied Feb. 13, 1979.

      Albert J. Stephan, Jr., Kenneth C. Bros-tron, Lashly, Caruthers, Thies, Rava & Hammel, St. Louis, for defendants-appellants.
    Benjamin Roth of the American Civil Liberties Union of Eastern Missouri, St. Louis, for Barbara T. Wilson.
    Robert B. Hoemeke, Evans, Hoemeke & Casey, St. Louis, for The Pulitzer Pub. Co.
   SNYDER, Judge.

Respondents, the Pulitzer Publishing Company (Pulitzer) and Barbara T. Wilson (Wilson), in separate suits against appellants, members of the St. Louis Board of Police Commissioners (Board) were granted injunctions by the trial court, enjoining the Board, among other things, from denying respondents access to a report made by the Bureau of Inspections of the St. Louis Police Department pertaining to an investigation into the death of Joseph Lee Wilson. The Board has appealed from the judgments granting the injunctions. Upon motion, the cases were consolidated for appeal. The judgments are reversed and remanded with instructions to dissolve the injunctions.

This is a case of first impression under Missouri’s Sunshine Law, Chapter 610, RSMo Cum.Supp.1975. The question to be answered is whether the exemptions from disclosure authorized in § 610.025 are limited in any way as to time. This court holds that an investigatory record, closed as authorized in § 610.025(4) is not required to be opened to the public after the investigation is concluded and a final decision made to take no action based on the report.

Joseph Lee Wilson died on August 25, 1971 while in police custody. Investigation was. conducted by the Internal Affairs Division of the Bureau of Inspections of the St. Louis Metropolitan Police Department to determine whether Wilson’s death was caused by misconduct on the part of any personnel of the St. Louis Police Department.

Pulitzer had filed suit earlier against the Board requesting the trial court to order the Board to grant Pulitzer access to certain arrest registers, arrest records and police reports of the St. Louis Police Department and to permanently enjoin the Board from denying Pulitzer access to those documents. Section 610.030 of the Sunshine Law specifically authorizes circuit courts to grant injunctive relief. While Pulitzer’s arrest record suit was pending the Inspector of Police transmitted the Wilson report to the Board for its review.

On August 25, 1976 by unanimous vote the Board found the charge that unidentified police officers were responsible for Wilson’s death “is not sustained.” According to Board rules this finding meant that there was insufficient evidence available to either prove or disprove the allegations in the complaint. Pulitzer and representatives of Wilson demanded the right to inspect the Wilson report. The Board refused to accede to their demands.

Pulitzer then amended its earlier petition relating to arrest records to include a request that the Board be enjoined from denying it access to reports of completed investigations filed with the Board by the Bureau of Inspections. While the Pulitzer suit was pending, the Board adopted a policy permitting public inspection of the arrest records and no issue relating to these records has been raised on appeal.

Barbara T. Wilson filed her petition for injunction on September 24,1976 seeking to prevent the Board from denying her access to the report of the Bureau of Inspections concerning the incidents surrounding and leading up to the death of her husband, Joseph Lee Wilson, and the records prepared by or submitted to the Bureau of Inspections in connection with its investigation and upon which the report on Joseph Lee Wilson’s death “was based and from which the report was prepared.”

Cross-motions for summary judgment were filed in both cases.

The affidavit of Inspector of Police, Lt. Col. Atkins Warren, Commander of the Bureau of Inspections, was filed in support of the Board’s motion for summary judgment. The affidavit described the mission of the Bureau of Inspections and the circumstances of the Bureau’s investigation of the Wilson death. Lt. Col. Atkins Warren further stated such investigations are of a confidential nature and that the resulting reports contain elements of hearsay. According to the affidavit, the disclosure of such an internal investigation file would seriously compromise the mission of the Bureau of Inspections.

An August 25, 1976 statement of Col. T. D. McNeal on behalf of the Board was also filed in support of the Board’s motion for summary judgment. The statement set forth the refusal to make a public disclosure of the Wilson investigatory file. It was also pointed out in the statement that investigations of the death of Mr. Wilson had been made by the Homicide Division, the Inspector of Police, the Coroner’s Office, a St. Louis circuit court grand jury, a federal grand jury, the Federal Bureau of Investigation and the Civil Rights Division of the U.S. Department of Justice and that none of these seven agencies had found sufficient evidence to justify proceeding against any member of the St. Louis Police Department.

Col. McNeal stated it was a Board policy of many years standing not to make public any investigatory file. He said further that there were numerous good reasons for the policy and among them listed the following:

(a) Investigators assigned to the Inspector’s Office and the Homicide Division are required to check out every lead, including hearsay and rumors. Thus, the names of many innocent persons appear in these files. The release of such files could lead to the unjust ruin of reputations and careers of innocent citizens;
(b) Police Officers who submit reports must feel free to honestly state their opinions and conclusions without the fear that these remarks will be made public, or possibly subject them to personal liability.

The trial court granted Pulitzer’s motion for summary judgment by ruling that “completed reports of investigations made by the Bureau of Inspections, after the matter is finally closed and no litigation nor hiring, firing or promotion of personnel is contemplated, should be records open to the public” and permanently enjoined the Board from denying Pulitzer access to such completed reports, specifically including the Wilson report.

The trial court granted Wilson’s motion for summary judgment and permanently enjoined and restrained the Board from denying plaintiff the opportunity to inspect the report made by the Bureau of Inspections on the death of Joseph Lee Wilson and the records prepared by or submitted to the Inspector’s Office in connection with the investigation and upon which the report was based and from which it was prepared.

The Board’s appeals followed.

This has been a difficult decision. The very basic right of the public to be fully informed of government activities conflicts with the obvious necessity for restraints on this right to know in the case of litigation, meetings and records relating to personnel, mental health matters, military matters and juvenile and certain other court proceedings. The conflict here is one between the philosophy of openness in government, which for the last few years has been the subject of much discussion and legislation on both the federal and state levels, and the recognized need for confidentiality in certain special situations. The legislature recognized both the need for openness and the concomitant need for exempting certain types of information from disclosure when it passed the Sunshine Law in 1973. This conflict, coupled with the need to divine the legislative intent behind the Sunshine Law, presents a problem of some magnitude, and is further complicated by a lack of precedent in this developing field of law.

The first open records law was passed by the General Assembly in 1961 but it was never referred to as a Sunshine Law, perhaps because that designation had not yet come into fashion. It provides in §§ 109.-180 and 109.190, RSMo 1969 that “except as otherwise provided by law, all state, county and municipal records kept pursuant to statute or ordinance shall at all reasonable times be open for a personal inspection by any citizen of Missouri, . . . .” Penalties are provided for noncompliance.

Not all government records are kept pursuant to statute or ordinance, however, and the 1973 Sunshine Law, in an all inclusive definition, describes public records as “any record retained by or of any public governmental body . . . .” § 610.010(4).

A public governmental body is defined as: [A]ny constitutional or statutory governmental entity, including any state body, agency, board, bureau, commission, committee, department, division, or any political subdivision of the state, of any county or of any municipal government, school district or special purpose district, and any other governmental deliberative body under the direction of three or more elected or appointed members having rulemaking or quasi-judicial power. [§ 610.010(2)].

The statute then mandates open meetings and public disclosure of “public records” as follows:

Except as provided in section 610.025, and except as otherwise provided by law, all public votes shall be recorded, and if a roll call is taken, as to attribute each “yea” or “nay” vote, or abstinence if not voting, to the name of the individual members of the public governmental body, and all public meetings shall be open to the public and public votes and public records shall be open to the public for inspection and duplication. [§ 610.-015].

In § 610.025 there are five subsections which provide for closed meetings, records or votes which are exempt from disclosure. The two exemptions pertinent here read as follows:

2. Any meeting, record or vote pertaining to legal actions, causes of action, or litigation involving a public governmental body, . . may be a closed meeting, closed record, or closed vote.
4. . meetings relating to the hiring, firing or promotion of personnel of a public governmental body may be a closed meeting, closed record, or closed vote.

The Board contends that the Wilson report and similar final investigatory reports are records which may be closed under § 610.025(2) and (4) of the Sunshine Law and that these records may remain exempt from disclosure as long as the Board, as the involved public governmental body, wants to maintain the confidentiality. Respondents argue that the reports in question are public records open to the public for inspection and duplication under Chapter 610, and that they do not fall within the classes of meetings, records or votes which may be closed under the statute. In the alternative, respondents contend if they do fall within the exemptions, the reports should be opened when action on them is completed.

The Board does not explicitly admit or deny in its pleadings that the Wilson report is a public record as defined in Chapter 610. Its briefed contention that the report is a closed record under § 610.025, however, is a tacit admission that it falls within the public record definition of the statute, § 610.010(4). It could hardly be argued otherwise. The report here in question is a “record retained by” the Board of Police Commissioners, a public governmental body under the statute. See Cohen v. Poelker, 520 S.W.2d 50 (Mo. banc 1975).

Preliminarily it must be decided whether the Wilson report and other similar reports fall within the category of matters exempted from disclosure by the statute. If the report does not fall within the definition of matters permitted to be closed under § 610.-025, the injunction was properly granted and the judgments must be affirmed.

In reality, the Board here has made two decisions: (1) these documents fall within the statutory exemptions from disclosure and (2) these documents will not be disclosed. The second decision clearly is committed by the statute to the Board’s discretion, but the first decision may be challenged and examined in the courts. In this case, the uncontroverted affidavit of Lt. Col. Atkins Warren has supplied the basis for the determination that the Wilson report is a report included in the definition of those exempt from disclosure under § 610.025(4) relating to the “firing” of personnel. The affidavit stated:

The purpose of the investigation was primarily to determine whether Mr. Wilson’s death was caused by any misconduct on the part of any personnel of the St. Louis Metropolitan Police Department. If such misconduct had been found, my duties as Inspector of Police would have required me to initiate procedures against any such person or persons which could have led to dismissal from the Department.

In addition, the trial court in its memorandum opinion correctly found that, “With regard to the Wilson report, it is not denied by plaintiff and indeed there can be no question that in its original compilation this investigative report was made in contemplation of possible disciplinary proceedings which might result in the ‘firing . of personnel of a. public governmental body.’ ”

Because the Wilson report may be a closed record relating to personnel matters as authorized by § 610.025(4), there is no need to consider the question of whether it falls within § 610.025(2) which authorizes closed records pertaining to legal actions or litigation.

The order in the Pulitzer case enjoined the Board from denying Pulitzer access to all reports of completed investigations filed with the Board by the Bureau of Inspections, including the Wilson report. The decision on this appeal will apply to the Wilson report and any other Bureau of Inspection reports falling within the disclosure exemptions permitted by § 610.025. It is possible, however, that future Bureau of Inspection reports will not fall within the statutory exemptions and hence will be subject to disclosure.

The trial court held that since the Joseph Lee Wilson case is now concluded and no disciplinary action contemplated, the report, although initially exempted from disclosure under § 610.025(4), should now be made public. The reasoning was that once an investigation is concluded and any “potential sequelae” are eliminated, the statutory exemptions from public disclosure become meaningless and that a public purpose would be served by disclosure of the report. The court, however, admitted that the statute is silent as to the duration of the confidentiality permitted for the matters exempted from disclosure by § 610.025.

Respondents and the trial court relied heavily on the Oregon case of Jensen v. Schiffman, 544 P.2d 1048 (Or.App.1976). In Jensen a report of an investigation of the police department of the city of Reefsport, Oregon was made. Plaintiff sought a copy of that report. The Oregon statute, Or. Rev.Stat. § 192.500, provided that “investigatory information compiled for criminal law purposes” was exempt from disclosure. The parties stipulated that the report was compiled for criminal law purposes and the court based its decision on that understanding. The case is not very helpful and can be distinguished in many respects. The court in Jensen was not considering a report prepared for personnel disciplinary purposes. The Oregon statute contains a provision that records are exempt “unless the public interest requires disclosure in the particular instance.” The Missouri statute contains no similar language.

Further, although their decision clearly favored the philosophy of disclosure and indicated an in camera examination revealed the report appeared to be available for public inspection, the Oregon court did not order the report disclosed. After rejecting the extreme positions of both parties, the court remanded the cause to the trial court for further consideration in light of its interpretation of the Oregon statute. A portion of the report was admittedly exempt from disclosure because it involved pending civil litigation. The court also spoke to the question of confidential sources, which are exempt from disclosure under the Oregon law, and said merely that the defendant presented no evidence as to information submitted in confidence. Apparently, if there had been such evidence at least portions of the report would have been exempt for confidential source reasons.

The Oregon court compared the Oregon statute and the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1970), as amended by Pub.L. No. 94-409, § 5(b) (1976), after which the Oregon law apparently was modeled. The court based its decision in part on the 1974 amendments to 5 U.S.C. § 552(b)(7) which limited the exemption from disclosure of federal investigatory records compiled for criminal law purposes by allowing the records to be kept confidential only if the disclosure would result in certain specified detriments to individuals or the law enforcement process.

Prior to the passage of the 1974 amendments it was held in Weisberg v. U. S. Dept. of Justice, 160 U.S.App.D.C. 71, 489 F.2d 1195 (1973), cert. denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772 (1973), and other cases, that investigatory information compiled for criminal law purposes was exempt from disclosure after the investigation for which it was compiled was closed. There was a split of authority among the courts, however, and Congress, to clarify the law, amended it to limit the exemptions from disclosure. At least Weisberg, supra, and the cases at footnote 3 construed the federal act to allow indefinite exemption from disclosure before the limiting amendment was passed, lending support to the Board’s contention that the Missouri statute should be similarly construed. In addition, in the federal law there are certain classes of records and meetings relating to personnel matters and to the accusing of any person of a crime or formally censuring a person that are exempted from disclosure, apparently for as long as the concerned agency decides they should remain confidential. 5 U.S.C. § 552(b); 5 U.S.C. § 552b(c).

Although federal statutes and decisions are not controlling on Missouri courts, the provisions and legislative history of the FOIA and the related court decisions lend some support to the position of the Board.

Among other cases from foreign jurisdictions Pulitzer also cites Moak v. Philadelphia Newspapers, Inc., 336 A.2d 920 (Pa.Cmwlth.1975) which construed Pennsylvania’s “Right to Know Act.” The case is not in point. The exemption from disclosure provision in Moak was “ ‘any record . which would operate to the prejudice or impairment of a person’s reputation or personal security, . . . Pa.Stat.Ann. tit. 65, § 66.1(2) (Purdon) (as amended 1971). The records in question were the payroll records of the Philadelphia Police Department. The Commonwealth Court of Philadelphia affirmed the judgment of the trial court allowing access to the records, holding that where the records themselves would not operate to prejudice or impair police officers’ reputations, they were not exempted from disclosure, even though correlation of the records with information in a crime commission report could result in identification of officers accused of corrupt and improper conduct. The Pennsylvania and Missouri statutes are dissimilar, as are the' exemption provisions, and the case does not support respondents’ position.

Pulitzer also cites Farrell v. Village Bd. of Trustees, Village of Johnson City, 83 Misc.2d 125, 372 N.Y.S.2d 905 (1975). Farrell, too, involved a statute and exemption different from the provisions of the Missouri Sunshine Law. The 18 page report in question, however, concerned an investigation of the conduct of police officers. Although the áppellate court directed the disclosure of three written reprimands it held that most of the report should be kept confidential because it was “part of investigatory files compiled for law enforcement purposes” as exempted by the statute, saying, at page 908:

The Legislature specifically exempted such matters from disclosure. Investigatory files are apt to consist of remarks, gossip, guesses, impressions, hearsay, relevant information, irrelevant information, comments, surmises, data and facts. The Legislature decided it would be best not to have such medley of matters disclosed.

Disclosing the reprimands in Farrell without the other matter in the report is comparable to disclosing only the Board’s final decision in the case at bar, the decision that the facts do not warrant any disciplinary action. Farrell is more supportive of the Board’s position than that of the respondents.

Another foreign case relied on by Pulitzer is Miami Herald Publishing Company v. Collazo, 329 So.2d 333 (Dist.Ct.App.1976). Again the case is distinguishable. The trial court in Miami Herald Publishing Company sealed the terms of the settlement of a civil suit brought by Collazo against the city of Miami. No sunshine law was involved. Instead, the decision to order disclosure was posited on an abuse of discretion by the trial court in exercising its inherent power to do all things reasonably necessary for the administration of justice. The appellate court reversed, holding that the trial court abused its discretion in ordering the terms of the settlement sealed.

In an effort to obtain as much information as possible, the laws of 28 states relating to public disclosure were reviewed. None contain language similar to that in Missouri’s Sunshine Law. Most relate to meetings instead of records and allow closed or executive sessions when discipline or dismissal of employees is being considered. There is a thread of general intent running through this type of legislation, as adopted in other states, to exempt from disclosure matters relating to appointment, employment, discipline or dismissal of employees. In some states the employee being investigated is permitted to open to the public an otherwise closed meeting. Perusal of these statutes has only served to emphasize that the problem of closing personnel matters is recognized in nearly all jurisdictions which have passed open meetings legislation. However, the review did not shed any light on the problem of the duration of the record closure being considered here.

Farrell, supra, and the provisions and legislative history of the federal FOIA are mildly persuasive that the duration of the exemptions from disclosure under § 610-025(4) is at the discretion of the public governmental body. But the language of the law itself, construed in accordance with accepted principles, must be the basis for decision. Pulitzer admits in its brief that the primary issue in the appeal is the construction to be given § 610.025.

It is axiomatic that in construing a statute a court’s primary duty is to give effect to legislative intent as expressed in the words of the statute. Cohen, supra. Provisions not plainly written in the law, or necessarily implied from what is written, should not be added by a court under the guise of construction to accomplish an end that the court deems beneficial. Missouri Public Service Co. v. Platte-Clay Elec. Coop., 407 S.W.2d 883 (Mo.1966). “We are guided by what the legislature says, and not by what we think it meant to say.” United Air Lines, Inc. v. State Tax Commission, 377 S.W.2d 444, 448 (Mo. banc 1964).

It is not disputed that the intent of the legislature should control; nor is it arguable that the legislature in passing Chapter 610 intended to let the sunshine in on public meetings, records and votes. Likewise, it is clear that the legislature intended to exempt certain meetings, records and votes from public disclosure.

Pulitzer asserts that § 610.025(4) pertains only to meetings relating to personnel matters. The language of the section is not as clear as it might be, but as Pulitzer admits in its brief, it is obvious that if a meeting is to be closed, the records of the meeting must also be closed, a conclusion with which it would be difficult to disagree. The Wilson report and supporting documents are records of closed meetings relating to the firing of personnel and fall within the exemption described in § 610.025(4).

Section 610.025 contains no words limiting the closing of the meetings, records or votes described in the section. There are no words in any other part of Chapter 610 which limit the exemptions from disclosure. Respondents have not cited any portion of the statute which even remotely hints at an intention on the part of the legislature to place a time limit on the closing of the meetings, records and votes which were allowed to be exempted from the Sunshine Law. The statute says, “[Meetings relating to the hiring, firing or promotion of personnel of a public governmental body may be a closed meeting, closed record, or closed vote.” § 610.025(4). Obviously discretion to close is granted to the concerned public governmental body, in this case the Board. The Board has elected to close the record as they are empowered to do under the statute. There may be good reasons from a public policy standpoint for revealing the Wilson report and the underlying documents, but courts must construe a statute as it stands, England v. Eckley, 330 S.W.2d 738 (Mo.banc 1960), and must give effect to it as it is written. State v. Patton, 308 S.W.2d 641 (Mo.banc 1958). This court may not engraft upon the statute provisions which do not appear in explicit words or by implication from other language in the statute.

Respondents urge a decision based upon a philosophy of openness and disclosure in government instead of a decision based upon the plain language of the statute. The legislature has decided that certain meetings, records and votes may be closed. Having granted the authority to the public governmental body to close the records, the legislature has said nothing about the duration of that privacy.

If the members of the General Assembly had intended to limit the duration of the exemption would they not have included some provision to that effect in the statute? Perhaps because sunshine legislation is of recent origin the question of a time limit on exemptions was not brought to the attention of the lawmakers. On the other hand, it is just as likely that the subject of limits to exemptions was considered, debated and rejected. There are no legislative records which furnish this information, but the law itself contains no words to support the position of respondents. There is no language saying when, if ever, closed matters must be opened to the public. In judicial construction of statutes the legislature is presumed to have acted with full knowledge of the subject matter, relevant facts and existing conditions. Smith v. Pettis County, 345 Mo. 839, 136 S.W.2d 282 (Mo.1940); Mack Motor Truck Corporation v. Wolfe, 303 S.W.2d 697 (Mo.App.1957); 82 C.J.S. Statutes § 316 page 541.

It is not for a court to speak for the legislature. It is the duty of the representatives of the people to write our statutes and if records of investigations relating to the hiring, firing or promotion of personnel of public governmental bodies are to be given only a limited time exemption, then the legislature should set the limits after thorough consideration of all pertinent problems in the hearings and debates inherent in the legislative process. As the law is written it must be held that the exemption from disclosure for closed meetings, records or votes relating to the hiring, firing or promotion of personnel of public governmental bodies continues after final action is taken.

An affirmance would establish a precedent for public disclosure, once final action had been taken, of all meetings, records and votes pertaining to personnel matters of the police board and all other public governmental bodies. It would be impossible for school boards, for example, to obtain confidential information relating to disciplinary problems or the hiring and discharge of personnel, because once the hiring, firing or promotion was accomplished, the record would be open to the members of the public and press. Knowledgeable persons would refuse to supply facts and information because of the fear of ultimate public disclosure.

If respondents’ view of the statute were to be upheld, § 610.025(4) would become almost meaningless. The exemption from disclosure would cease when the personnel decision had been made and all of the personal information considered by the agency would be exposed to the public gaze. The possibility of harm to reputation or employment would be substantial. At the very least, persons involved might be caused embarrassment or humiliation. If the purpose of the exemption is to permit candid, open and confidential discussion of personnel matters within a public governmental body, the purpose is defeated if members and informants know that, although the initial discussion and any record made are confidential, they are immediately open to the press and public once a decision is made or a vote taken. No purpose could be served in closing the meeting initially.

A more unreasonable result would occur if a closed vote, once taken, were to be subject to immediate disclosure. The closed vote provision in the statute means nothing if the only time the vote would be closed would be during the actual vote taking. The legislature is presumed to intend a logical and reasonable result. McCarthy v. Board of Trustees of the Fire Retire. Sys., 462 S.W.2d 827 (Mo.App.1971). There is also a presumption that the legislature did not intend unreasonable consequences. 82 C.J.S. Statutes § 316 page 546.

Although the ruling here is based upon the construction of the statute, the construction is given strong support by the nature of the Wilson report. The report contains hearsay and unverified information, some of it obtained from confidential sources. Witnesses were told their interviews were confidential. Disclosure of the report would inhibit officers and citizens from divulging information in the future. Confidential sources and investigative techniques would be revealed and the efforts of the Bureau of Inspections to maintain proper discipline would be prejudiced.

Meetings, records or votes closed as authorized under § 610.025(4) may remain closed indefinitely at the discretion of the supervising public governmental body. If the legislature had intended otherwise, it would have placed some type of time or other limitation upon the closing authority, or perhaps granted to the courts the power to decide what should remain closed and what should be revealed to the public. An appellate court cannot and should not order a limitation when the legislature omitted to do so. Such judicial usurpation of the legislative function has been a too frequent occurrence in court decisions at all levels in recent years.

The purpose of the statute is not defeated by dissolving these injunctions. The purpose of the statute is accomplished through the mandatory public disclosure of the vast majority of public records and votes and the opening of nearly all public meetings, many of which in the past were concealed from the press and the public. The exemptions from disclosure under consideration here pertain to a minimum of governmental activity.

The judgments of the trial court are reversed and remanded with instructions to dissolve the injunctions.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . Unless otherwise noted, all statutory references are to RSMo Cum.Supp.1975.

      . 5 U.S.C. § 552(b)(7) provides an exemption for:
      (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel; .

      . See Aspin v. Department of Defense, 160 U.S.App.D.C. 231, 491 F.2d 24 (1973); Frankel v. Securities and Exchange Commission, 460 F.2d 813 (2d Cir. 1972), cert. denied, 409 U.S. 889, 93 S.Ct. 125, 34 L.Ed.2d 146 (1972); Evans v. Department of Transportation of United States, 446 F.2d 821 (5th Cir. 1971), cert. denied, 405 U.S. 918, 92 S.Ct. 944, 30 L.Ed.2d 788 (1972); Koch v. Department of Justice, 376 F.Supp. 313 (D.C.Dist.1974).

      . See Bristol-Myers Co. v. Federal Trade Commission, 138 U.S.App.D.C. 22, 424 F.2d 935 (1970), cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970).

      . Alaska Stat. § 44.62.310 (1976); Ariz.Rev. Stat.Ann. §§ 38-431 to 38-431.09 (1978); Ark. Stat.Ann. §§ 12-2801 to 12-2807 (as amended 1976); Cal. Gov’t Code § 6254 (West) (as amended 1977); Conn.Gen.Stat. §§ l-18a to 1-19 (1977); Fla.Stat. § 286.011 (1971); Haw. Rev.Stat. §§ 92-1 to 92-13 (1976 Replacement Vol.); Ill.Ann.Stat. Ch. 102, §§ 41-46 (Smith-Hurd) (as amended 1977); Ind.Code Ann. §§ 5-14-1.5-1 to 5-14-1.5-7 (Burns) (1977); Iowa Code Ann. §§ 68A.1 to 68A.9 (as amended 1976); Me.Rev.Stat. tit. 1, §§ 401-406 (1975); Md.Ann.Code art. 76A, §§ 1-15 (1977); Mass. Ann.Laws ch. 4, § 7, cl. 26(a)-(i) (Michie/Law. Co-op) (as amended 1977); Mich.Comp.Laws §§ 15.261 to 15.275 (1976); Minn.Stat. § 471.-705 (as amended 1975); N.J.Rev.Stat. §§ 10:4-6 to 10:4-21 (1975); N.M.Stat.Ann. §§ 5-6-23 to 5-6-26 (1974); N.Y.Pub.Off.Law §§ 95-106 (McKinney) (1976); N.C.Gen.Stat. §§ 143.318.1 to 143.318.7 (1971); Ohio Rev.Code Ann. § 121.22 (Anderson) (as amended 1975); Okla. Stat. tit. 25, §§ 301-304 (1977); Or.Rev.Stat. §§ 192.410 to 192.500 (1973); Pa.Stat.Ann. tit. 65, § 66.1 (Purdon) (as amended 1971); Vt.Stat. Ann. tit. 1, §§ 311-314 (amended 1973); Va. Code §§ 2.1-340 to 2.1-346 (as amended 1977); Wash.Rev.Code §§ 42.17.250 to 42.17.340 (as amended 1975-1976, as approved at the election of Nov. 2, 1976) W.Va.Code §§ 29B-1-1 to 29B-1-6 (1977); Wisc.Stat. §§ 19.81-19.98 (1975).


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    Sherman L. STRONG and Betty J. Strong, Appellants, v. The CURATORS OF the UNIVERSITY OF MISSOURI et al., Respondents.
    No. 39744.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 5, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 12, 1979.
    Application to Transfer Denied Feb. 13, 1979.
    M. Barry Forman, Forriss D. Elliott & Assoc., Inc., St. Louis, for appellants.
    Kortenhof & Ely, Joseph M. Kortenhof, St. Louis, for respondents.
   GUNN, Judge.

On June 14, 1976, decedent, a 6 year old boy, drowned in a swimming pool owned and operated by the University of Missouri at St. Louis. Decedent’s parents, as plaintiffs, brought suit in negligence against defendant Curators of the University of Missouri. The Curators filed a motion to dismiss plaintiffs’ petition based on the doctrine of sovereign immunity. The trial court sustained the Curators’ motion and dismissed plaintiffs’ petition as to them. We affirm.

Todd v. Curators of University of Missouri, 347 Mo. 460, 147 S.W.2d 1063 (1941), surrounds the defendant Curators with the protective aegus of the doctrine of sovereign immunity. Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977), abrogated the doctrine prospectively from August 15, 1978 except for Jones and those certain cases considering the issue decided on the same date as Jones. Inasmuch as plaintiffs’ claim arose on June 14, 1976, the defendant Curators are protected from the claim by reason of the doctrine and Jones.

Plaintiffs have raised the point that inasmuch as the University of Missouri has insurance coverage, there is no need to apply the doctrine’s repealer prospectively; that by the fact that the Curators have provided insurance coverage, they have, in effect, waived the doctrine to the extent of the coverage. In support of their position, plaintiffs refer specifically to the following language in Jones:

“In order that an orderly transition be made, that adequate financial planning take place, that governmental units have time to adjust their practices and that the legislature be afforded an opportunity to consider the subject in general, the doctrine is abrogated prospectively as to all claims arising on or after August 15,1978 ..” Jones v. State Highway Commission, id. at 231.

Plaintiffs argue that the purpose of the prospective application of the doctrine’s abrogation has already been met as the Curators have insurance. Consequently, so plaintiffs claim, no added time is necessary for an orderly transition of financial planning as this has already been accomplished through the insurance coverage. But Jones is not so conditioned as to make its prospective application inapplicable to those blanketed by the doctrine who incidentally carry insurance. No distinction is made in Jones as to those agencies with or without insurance. The language in Jones is explicit that the doctrine of sovereign immunity is to be effective to August 15, 1978, and there is no provision for lifting its protective veil simply because the agency has insurance. We are, of course, bound by the Supreme Court’s decision in Jones. Mo. ConstArt. V, § 2.

Section 71.185 RSMo 1969 allows recovery against municipalities to the extent of liability insurance coverage. But there is no contention made here that the University of Missouri is a municipality. Hence, § 71.185 is not applicable or helpful to plaintiffs. Judgment affirmed.

REINHARD, P. J., and CLEMENS, J., concur.

      . The City of Northwoods and its park board were also joined as parties defendant as sponsors of the recreational program in which the decedent was participating at the time of his death. Neither Northwoods nor its park board is involved in this appeal.

      . Prewitt v. Parkway School District, 557 S.W.2d 232 (Mo. banc 1977); Wheeler v. St. Clair County Hosp. Dist. No. 1, 557 S.W.2d 233 (Mo. banc 1977); State ex rel. Racer v. Richardson, 557 S.W.2d 235 (Mo. banc 1977).

      . Sections 537.600-537.650, 1978 Mo.Legis. Serv., effective August 13, 1978, provide for conditions of sovereign immunity and substantially modify the effect of Jones v. State Highway Commission, supra, particularly to the State and its political subdivisions having insurance coverage.


text:
    Ocieleen MITCHELL, Plaintiff-Appellant, v. ST. LOUIS COUNTY, Defendant-Respondent.
    No. 39972.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 5, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 12, 1979.
    Application to Transfer Denied Feb. 13, 1979.

      David R. Hess, Clayton, for plaintiff-appellant.
    Thomas W. Wehrle, St. Louis County Counselor, Harold P. Heitmann, Sp. Asst. County Counselor, Clayton, for defendant-respondent.
   GUNN, Judge.

Plaintiff-appellant was discharged from her employment with defendant-respondent St. Louis County for the reason of excessive absenteeism. She brought suit under § 287.780, RSMo Supp.1978 alleging that her discharge was discriminatory because it was based upon her filing of a Chapter 287 workmen’s compensation claim. At the close of all the evidence, the trial court sustained defendant’s motion for a directed verdict. We affirm.

After about 11 months of employment with defendant, plaintiff received a discharge letter from the director of her department stating in part:

I am in receipt of a summary sheet of employee counseling interview. . This summary counseling interview indicates that you have fallen short of job requirements on several items. But most importantly, I note that you had 76.5 hours of absenteeism charged against you during the last six months. Several reasons were specified for the absenteeism, including sickness, back injury, and so forth.

While working, plaintiff injured her back and about three months later filed a workmen’s compensation claim. For the six months preceding her discharge, defendant noted that plaintiff had 76.5 hours of absence from work, 68 of which plaintiff attributed to her back injury. However, at trial plaintiff conceded that she had missed work for a multitude of reasons unrelated to her back: missed bus connections, chills and sore throat, tooth extraction, • bad weather and illness, family illness, clinic appointments not related to the back injury, bad cold and sinus, oversleeping, personal business, leg problems, gynecologist appointment.

Plaintiff’s theory of recovery is that she was discharged for exercising her rights under the Missouri Workmen’s Compensation Law, specifically, § 287.780, RSMo Supp.1978, which provides:

No employer or agent shall discharge or in any way discriminate against any employee for exercising any of his rights under this chapter. Any employee who has been discharged or discriminated against shall have a civil action for damages against his employer.

The trial court sustained defendant’s motion for directed verdict. Plaintiff, for her sole point on appeal, alleges:

The trial court erred in granting defendant St. Louis County’s motion for a directed verdict at the close of plaintiff’s case for the reason that there was evidence before the court that plaintiff had been discharged from her employment for having been absent from work due to a work related injury when such employment was covered under the Workman’s Compensation Act.

We are required to give § 287.780 —as any statute — reasonable interpretation to avoid any absurd result. State ex rel. Zoological Pk. Subd., St. Louis v. Jordan, 521 S.W.2d 369 (Mo.1975); Shaffer v. Cochenour, 569 S.W.2d 320 (Mo.App.1978); Taylor v. McNeal, 523 S.W.2d 148 (Mo.App.1975); Hill v. Missouri Dept. of Public Health & Welfare, 520 S.W.2d 182 (Mo.App.1975). From our reading of the statute, it is palpable that a cause of action lies only if an employee is discharged discriminatorily by reason of exercising his or her rights under the Workmen’s Compensation Law. Plaintiff’s point on appeal does not allege that defendant is guilty of any discrimination, and we agree with the trial court that the record is destitute of any evidence of a discriminatory discharge by reason of filing a workmen’s compensation claim. There certainly is nothing within the Workmen’s ■Compensation Law indicating that an employee who has been injured and has returned to work, receiving a regular salary, may be absent repeatedly without penalty. Plaintiff alleges only that: (1) plaintiff had been discharged for absence from work due to a work related injury, and (2) that her employment was covered under the Workmen’s Compensation Law. The critical element of discrimination is missing, not only from the point raised on appeal but from the evidence. Plaintiff’s case thus fails and the directed verdict was proper, as there was no substantial evidence to support her claim. Kaelin v. Nuelle, 537 S.W.2d 226 (Mo.App.1976).

Texas Steel Co. v. Douglas, 533 S.W.2d 111 (Tex.Civ.App.1976), relied on by plaintiff, is distinguishable from the factual situation here. In Douglas, there was substantial evidence of discrimination by the employer; there is none here. More to the point is Axel v. Duffy-Mott Co., Inc., 62 A.D. 651, 406 N.Y.S.2d 155 (1978), dismissing a claim for an alleged discriminatory discharge for filing a workmen’s compensation claim where the employee had no probative evidence other than the filing of the claim and the subsequent discharge. Such is the situation in this case. Also, in Swanson v. American Manufacturing Co., 511 S.W.2d 561 (Tex.Civ.App.1974), a suit charging discrimination by reason of a workmen’s compensation claim was dismissed, as the record established that the ground for discharge — as here — was based on legitimate reason, vis-a-vis any showing of discrimination. Plaintiff rests her case on the fact that she was discharged several months after filing a claim for compensation. But the record amply supports the basis for her discharge for excessive absenteeism — a valid and not pretextual motive. D. C. International, Inc. v. N. L. R. B., 385 F.2d 215 (8th Cir. 1967). See also, Aubuchon v. Gasconade Cty. R-1 Sch. Dist., 541 S.W.2d 322 (Mo.App.1976). Plaintiff had been warned regarding her absences, and when they continued she was dismissed. No submissible case of discrimination was-made.

Judgment affirmed.

REINHARD, P. J., and CLEMENS, J., concur.

      . The provisions of Chapter 287 are applicable to St. Louis County by reason of § 287.030, RSMo Supp.1978.

      . See also, Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973).


author: FLANIGAN, Presiding Judge.

text:
    Rose Beryl HAYES, Respondent, v. James H. CARDWELL, Administrator of the Estate of James O. Cardwell, Appellant.
    No. 10567.
    Missouri Court of Appeals, Springfield District.
    Dec. 11, 1978.
    Motion for Rehearing or to Transfer Denied Jan. 9, 1979.
    Rehearing Denied Feb. 13, 1979.

      McCormick V. Wilson, Jefferson City, for appellant.
    Michael P. Riley, Carson, Monaco, Coil & Riley, P.C., Jefferson City, for respondent.
    Before FLANIGAN, P. J., STONE and TITUS, JJ., and MOORE, KENNEDY and CAMPBELL, Special Judges.
   FLANIGAN, Presiding Judge.

This action originated in the Probate Court of Camden County, Missouri, where plaintiff-claimant Rose Beryl Hayes filed a claim against the estate of James 0. Card-well, deceased. Defendant is the administrator of the estate. The claim contained five “items.” Items I, II, and III were adjudicated by the probate court, after a hearing attended by the parties and their attorneys. Neither side attacked that adjudication and those items are not involved in this appeal. Items IV and V are alternative statements of a claim for services rendered decedent by plaintiff. At a subsequent hearing on that claim the probate court entered its order disallowing it. Plaintiff appealed to the circuit court where the cause was tried to a jury and a verdict in the amount of $20,000 was awarded plaintiff. Defendant appeals from the judgment based on the verdict.

Defendant’s first “point relied on” is that the circuit court erred in denying defendant’s motion to dismiss, the motion being based on the “failure of the plaintiff to comply with provisions of § 473.400 V.A.M. S.”

The pertinent portion of § 473.400 reads: “ Unless expressly waived in writing by the executor or administrator, a copy of each claim filed against the estate of any decedent on which is endorsed the date of filing, together with a notice stating the time within which offsets or counterclaims may be filed under section 473.410 and also stating the time for hearing as fixed by court rule or by the court, shall be promptly served on the executor or administrator in the manner provided by subdivision (1) of subsection 2 of section 472.100 RSMo, or by ordinary mail, and proof of service in the manner provided by section 472.110 RSMo shall be filed in the court prior to the hearing and allowance thereof. . . . ” (Emphasis added.)

Defendant’s first point must be considered in the light of certain facts surrounding the processing of plaintiff’s claim in the probate court.

On May 30, 1973, Michael P. Riley, attorney for plaintiff, mailed a letter to the clerk of the probate court at Camdenton enclosing the claim of his client and requesting that it be filed. This letter stated that a copy of the claim, and of the letter itself, had been mailed to the administrator and to the administrator’s attorney, McCormick Wilson. Both Riley and Wilson had their respective law offices in Jefferson City and the administrator lived in Jefferson City.

On May 31, 1973, the claim was received by the clerk of the probate court and it was filed. On the same date the administrator and attorney Wilson received their copies of the claim and Riley’s letter of May 30 to the clerk.

On June 18,1973, attorney Wilson mailed to the clerk of the probate court a pleading of the administrator and mailed a copy to attorney Riley. The original was received by the clerk on June 19. The first page (caption omitted) of that four-page document reads, in pertinent part:

“MOTION, ANSWER AND SET-OFF
“Comes now James H. Cardwell, Administrator of the Estate of James Okel Card-well, deceased, and enters his special appearance for this purpose only in the claim of Rose Beryl Hayes and moves that the claim be dismissed for the following grounds:
“1. Claimant has failed to comply with the provisions of Section 473.400 V.A.M.S. relating to Service of Claims and Service of Notice of the filing thereof.
“In the Alternative, and only in the event that this Motion above is overruled by the Court; the Administrator states to the Court in response to the Claim of Rose Beryl Hayes, and the Items thereof, as follows:

The remaining three pages of the administrator’s pleading responded specifically to each of the five items of the claim and then pleaded a “set-off.”

Also on June 19, 1973, attorney Wilson wrote a letter to Janice P. Noland, the probate judge, and sent copies to the administrator and attorney Riley. The caption of that letter referred to “Estate of James O. Cardwell, deceased, Estate No. 1095.” The letter reads:

“Dear Judge Noland:
I talked to Mike Riley after he received my responsive pleading.
We are in agreement that it would be proper to submit the first three items of Mrs. Hayes’ claim to you separately from the rest. This would be her claim for the bank account and the certificates of deposit as set out in those items of the claim.
The claim for services, Item Four, and the Contract to Will, Item Five, would be heard at a later time.
In order to start on finding a suitable time we can all be available on July 10, 1973, if that is an acceptable date to you. If not, please contact me and Mr. Riley and we will set it at your convenience.
Yours very truly,
McCormick V. Wilson”

On June 21,1973, the clerk of the probate court, using a “speed letter” form provided her by attorney Wilson, wrote a letter to Wilson informing him that “We have set the hearing for July 10 at 10:00 a. m.” and asking Wilson to relay the information to Riley.

On June 25, 1973, attorney Wilson wrote a letter to Riley and sent copies to Judge Noland and administrator Cardwell. That letter reads:

“Dear Mike:
I attach hereto the pink copy of a speed letter from Carol Harper, Probate Clerk, notifying me that this matter is set for hearing on July 10 at 10 A. M. and requesting me to notify you.
It is still my understanding that this will be a partial hearing on your claim dealing with Items 1, 2 and 3 and not dealing with Item 4 or Item 5.
Yours very truly,
McCormick V. Wilson”

On July 13, 1973, a hearing was held in the probate court on Items I, II, and III. Plaintiff and defendant appeared in person and by their respective attorneys. The court, after hearing the evidence, adjudicated those claims. Another evidentiary hearing was held in the probate court on May 15,1974, and the parties and their attorneys again appeared. It was at that hearing that the instant claim was disallowed.

Defendant asserts that the requirements of § 473.400 were not met in that there was not served on the administrator a copy of the claim “on which was endorsed the date of filing, together with a notice stating the time within which offsets or counterclaims may be filed under section 473.410 and also stating the time for hearing as fixed by court rule or by the court.” Defendant also argues that there was no “proof of service filed in the court prior to the hearing and allowance of the claim.”

Certain factors should be pointed out before defendant’s first point receives disposition. Defendant’s present descriptions of the alleged non-compliance are more specific than was ground 1 of his motion to dismiss. It should also be noted that defendant’s first point, as does ground 1 of his motion to dismiss, alleges that plaintiff failed to comply with § 473.400. However, it seems clear that any non-compliance with the statute was that of the clerk and not of the plaintiff. See the form mentioned in footnote 2.

Claims in the probate court are often processed with less formality than that accorded the handling of petitions in the circuit court. Before a probate claim is filed, the identity of the personal representative is a matter of public record and so is the identity of the attorney for the estate. Attorney Riley’s letter of May 30 to the clerk did not instruct the latter to refrain from literal compliance with § 473.400. The clerk knew, however, that the administrator and the attorney had been mailed copies of the claim.

The transcript does not reflect that the administrator’s motion to dismiss was brought to the attention of the probate judge or that it received a ruling in that court. The motion is not mentioned in either of the orders of the probate court which adjudicated the two sets of claims. Perhaps it was the strategy of the administrator to permit the motion to lie dormant in the probate file and to refrain from obtaining a ruling on it. If the motion had been pressed, the alleged non-compliance was readily curable by meeting the literal requirements of the first sentence of § 473.-400. The motion, as a weapon of frontal assault, would gain only a temporary and hollow victory. Perhaps a more telling result would be won by ambuscade.

As a practical matter each of the purposes sought to be achieved by the first sentence of § 473.400 had been met by what was done in the case at bar. The administrator and his attorney had received a com-píete copy of the claim. Although their copies did not bear the endorsement of the date the claim was filed, each of them had received a copy of attorney Riley’s letter of May 30, 1973, forwarding the claim to the clerk. Letters from attorney Wilson to the clerk and to the probate judge, of which the administrator received copies, demonstrate that Wilson and the administrator knew that the claim had been filed. The administrator did include a “set-off” in his pleading and there is no contention that he was prejudiced by a failure to receive “a notice stating the time within which offsets or counterclaims may be filed under section 473.410.” The “time for the hearing” was the subject of correspondence in which attorney Wilson participated and the hearing date was agreed upon.

In fine, if § 473.400 had received literal compliance, the administrator and his attorney would not have received any information which they did not already possess. There is a total lack of a showing of prejudice occasioned by any technical non-compliance with the statute.

It is unnecessary to rule on the significance of the factors just mentioned. Section 472.130 provides in part that an administrator “may make waiver either in person or by attorney.” This court holds that Wilson’s letter of June 19, 1973, to Judge No-land is sufficient to meet the “express written waiver” requirement of § 473.400.

In that letter, which was written and sent after the administrator’s motion to dismiss had been filed, Wilson told the court that he and attorney Riley “are in agreement that it would be proper to submit the first three items of Mrs. Hayes’ claim to you separately from the rest.” The letter continues that the claim here involved “would be heard at a later time.” It is a fair construction of that letter that Wilson intended to abandon, and was abandoning, the motion to dismiss. The particulars of the claims would not be “submitted” to the court if the motion to dismiss were sustained. The motion embraced all five items of the claim and were it to be sustained, there would be no occasion for piecemeal hearings or any further hearing. Wilson’s letters of June 19 and June 25 make no mention of the motion to dismiss. The only reasonable construction to be placed upon those letters is that the five items would be heard on their merits.

The administrator had the power to waive the requirements of the first sentence of § 473.400. The statute says so itself. It would be a tortured construction of the statute to say that, by use of the word “express,” the legislature intended that the written waiver must make specific reference to the statute. The language of the waiver, contained in the form mentioned in footnote 2, is simply, “service of all notices is waived.”

The administrator relies upon language in Greenwood v. Schnake, 396 S.W.2d 723 (Mo. 1965) to the effect that a defendant may “probe into the merits of the case without the necessity of making the time-honored ‘special appearance’ or reserving the jurisdictional point at each stage of the procedure. Having once hoisted the flag at the beginning of the journey a litigant over whose person a court lacks jurisdiction need not continuously wave the flag at every way station along the route.”

In Greenwood, defendant’s motion attacking the jurisdiction over his person was not permitted to lie dormant. It received a specific ruling. Moreover, Greenwood was based upon various portions of Rule 55 which deals with pleadings and motions. The instant action originated in the probate court to which Rule 55 is not applicable, Rule 41.01(a), nor was it applicable to the action after it was lodged in the circuit court for the reason that the latter tribunal did not order the application of Rule 55. See Rule 41.01(b).

Missouri courts have construed provisions of the probate code liberally in order to secure a just determination of the proceeding on its merits. See, for example, Johnson v. Estate of Girvin, 414 S.W.2d 245 (Mo. banc 1967); Jensen v. Estate of McCall, 426 S.W.2d 52, 57 (Mo. 1968); and State ex rel. Nollmann v. Gunn, 513 S.W.2d 710 (Mo.App.1974).

It is the command of Rule 84.13(b) that this court shall not reverse a judgment “unless it finds that error was committed by the trial court against the appellant, materially affecting the merits of the action.” To sustain defendant’s first point, in light of the instant record, would permit form to triumph over substance and would contravene that mandate.

It is unnecessary to consider whether, under the facts here, defendant’s first point is undermined by that portion of § 472.130 which reads: “ . . . Any person who submits to the jurisdiction of the court in any hearing waives notice thereof.”

Defendant’s first point has no merit.

Defendant’s second point is that the circuit court erred in failing to dismiss, as premature, plaintiff’s appeal from the judgment of the probate court for the reason that the latter judgment was not a final one in that it did not “dispose of all items of this claim against the estate.”

In Item IY of her claim plaintiff alleged that she “continuously performed services for the decedent irom March 1967 until the time of his death,” and listed 7 types of “personal services” and 11 types of “business services” which plaintiff allegedly rendered. Item IV further alleged that plaintiff “received no funds or payment for her work in operating decedent’s business or for personal services, although decedent knew and expected to pay for said services; that a reasonable value for said services is $60,-000. Amount claimed $60,000.”

Item V, pleaded “in the alternative” to Item IV, incorporated all of the allegations of Item IV. In addition, Item V alleged that the decedent and claimant, by express contract, agreed that, in return for the services performed by claimant, decedent would, by his will, give her a named asset having an alleged value of $60,000.

Although both Item IV and Item V stated that the amount claimed, for the item, was $60,000, the two amounts were not combined in the prayer and the latter sought $60,000 on whichever of the two items was allowed.

After the hearing on May 15, 1974, the probate court entered its judgment. The opening paragraph of the judgment recites that the court “takes up Item IV of the claim.” The decretal portion of the judgment reads, “Wherefore, it is ordered, adjudged and decreed that the claim of Rose Beryl Hayes for $60,000 for services shall be disallowed.”

Section 473.380, which deals with “form and verification of claims,” requires only that a claim be “in writing, stating the nature and amount thereof, if ascertainable,” and be accompanied by an affidavit containing certain statements. The statute makes other requirements if the claim is founded on a written instrument.

“[T]he niceties of pleading required fn actions initiated in the circuit court need not be observed in proceedings originating in the probate court * * * and a formal pleading is not necessary in presentation of a claim in the probate court.” Malone v. Adams, 362 S.W.2d 95, 98[2] (Mo.App.1962).

The relationship between Item IV and Item V may be illustrated by considering a somewhat analogous situation which arose in J. G. Jackson Associates v. Mosley, 308 S.W.2d 774 (Mo.App.1958). In that case, a two-count petition was filed in the magistrate court. Each count sought compensation for services rendered. Count I was based upon an express contract theory and Count II was based on the theory of quantum meruit. The magistrate court entered judgment in favor of the defendant. On appeal to the circuit court, the latter tribunal entered a judgment in favor of plaintiff but the judgment, in the amount of $450, made no reference to the two counts. The court of appeals held that the circuit court judgment was a final one and that the appeal was not premature. At p. 776 the court said:

“Where the disposition of one count and the entry of a general judgment thereon operates to settle all questions, eliminate all issues as between the parties and preclude a recovery on all other counts, there is a final judgment for the purposes of appeal. The instant appeal falls within that exception. The recovery of $450 plus interest for certain engineering services upon a contract theory settled the question and eliminated the issue whether defendant owed plaintiff $450 for the same engineering services on a theory of quantum meruit, and would preclude a recovery under Count II, for it is certain that plaintiff could not recover twice for the same thing.”

In the instant case Item IV presented a theory of recovery based on quantum meruit and Item V presented a theory of recovery based upon breach of an express contract. At the pleading stage in the probate court the claimant could not be required to elect between the two theories. Jensen v. Estate of McCall, supra, 426 S.W.2d at 56[4]. However, both Item IV and Item V were predicated on the same cause of action or claim. In the language of J. G. Jackson Associates, the two items stated alternate theories “for the same thing.”

If there is an inconsistency between the recitals of a judgment and its decretal portion, the latter controls. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132, 141[27] (1952); see also Page v. Page, 516 S.W.2d 537, 539[1, 2] (Mo.App.1974). Although a recital in the judgment of the probate court mentioned Item IV and did not mention Item V, the decretal portion of the judgment disallowed “the claim of Rose Beryl Hayes for $60,000 for services.” The decre-tal portion of the judgment in effect made a final disposition of both Item IV and Item V. It is unnecessary to determine whether the judgment of the probate court would have been appealable if its decretal portion had been limited to Item IV.

Defendant’s second point has no merit.

Defendant’s third point' is that the trial court erred in permitting the plaintiff, over the objection of the defendant, “to testify as to acts and contracts done or made prior to .the appointment of the administrator, and in her own favor against the administrator as to transactions with the deceased in violation of § 491.010 V.A. M.S.”

Section 491.010, “the dead man’s statute” was discussed in Flanagan v. DeLapp, 533 S.W.2d 592 (Mo. banc 1976). Pointing out that the statute has “three functional parts,” the court said:

“First, it qualifies as witnesses those individuals disqualified at common law because of their interest in the outcome of the case. Next, in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, the so-called transactions proviso of the statute makes a surviving party incompetent as a witness in his own favor or in favor of one claiming under him. Under this proviso the witness is incompetent only as to those matters about which decedent could have testified if he had lived. Finally, where one of the parties to a contract is deceased, and an executor or administrator is a party to a suit involving such contract, the portion of the statute referred to as the administration proviso makes the surviving party to the contract totally incompetent as a witness except as to matters occurring after probate of the will or appointment of an administrator.” (Emphasis added.) Flanagan at p. 597.

In the instant action, James Cardwell, defendant’s decedent, was an original party “to the contract or cause of action in issue and on trial.” § 491.010. Accordingly defendant was entitled to the protection of the transactions proviso. Further, this was an action against an administrator and the “contract in issue” was not “originally made with a person who is living and competent to testify.” Accordingly, by reason of the administration proviso, plaintiff “shall not be admitted to testify either in his own favor . . . except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator.” § 491.010. Upon proper and timely objection plaintiff should not have been permitted to give testimony which would run afoul of either proviso. See Birdsong v. Estate of Ladwig, 314 S.W.2d 471 (Mo.App.1958); Thomas v. Fitzgerald’s Estate, 297 S.W. 425 (Mo.App.1927).

In the trial before the jury in circuit court plaintiff was called as a witness in her own behalf. On direct examination she stated her name, address, and place of current employment. She said she was not married and that she had two adult children. Plaintiff’s counsel asked the witness if she had ever been married and she said, “yes.” At that juncture defendant’s counsel, Mr. Wilson, said, “If the court please. I object. This calls for testimony prior to the date of the admission of this will in probate. The executor is a party to this case, the administrator is a party to this case. This witness is incompetent to testify to matters prior to that time.” The court overruled the objection.

Plaintiff’s counsel then renewed his question concerning her prior marital status. The witness testified that she had been married and that her husband died in 1960. Defense counsel then stated: “I renew my objection on the grounds of her incompetency since the administrator is a party to this proceeding.” The objection was overruled.

The following then transpired:

“Q. And what businesses have you been in, Mrs. Hayes?
“A. We have been in .
“Wilson: If these have to do with anything prior to that time, I renew the objection on the same grounds of her incompetence to testify under the first provision in the rule, no, under the provision of the rule 491.010 relating to suits involving administrators and executors.”

The court informed defense counsel that the objection was overruled. The court also stated: “We’ll show that that’s a continuous objection as to the competency to anything that happened prior to the probate of the will.”

The claimant then testified extensively on direct examination. Her testimony dealt primarily with matters which antedated the appointment of the administrator. She described her relationship with the decedent, which commenced in 1962, including their “business relationship.” She described her financial affairs. She gave a detailed description of living with Cardwell at the Silver King Resort (which he owned) from 1967 until Cardwell’s death in 1972. She gave testimony concerning the resort business, work she and Cardwell had done together, loans she had made to Cardwell, services she had rendered him, and the fact that she had not been paid for those services. She mentioned temporary separations of herself and Cardwell. In fine she gave a detailed description of the facts on which she based her claim for services. Although the court had informed defense attorney Wilson that his objection, based upon the dead man’s statute, was to be considered to be a continuing one, counsel reiterated that objection several times during the course of the witness’ direct testimony.

By reason of the administration proviso of § 491.010 plaintiff was not competent to testify as to any matters which antedated the appointment of the administrator. Most of her testimony was also objectionable under the transactions proviso.

Plaintiff seeks to counter defendant’s third point by making three contentions:

(a) The objections of defense counsel were too general;

(b) The point was not adequately preserved in defendant’s motion for new trial; and

(c) The error was waived by defendant’s cross-examination of the plaintiff, both in the probate court and in the circuit court.

The adequacy of objections based upon the dead man’s statute is the subject of authorities discussed in “waiver of the Missouri Dead Man’s Statute,” 39 Mo.Law Rev. 218 at p. 232. This court holds that the instant objections were sufficiently specific and timely to preserve the error.

Defendant’s motion for new trial contained this assignment: “4. The court erred in admitting the testimony of an incompetent witness over the objection of the defendant when it permitted the plaintiff Rose Beryl Hayes to testify in her own favor against the administrator as to acts and contracts done or made prior to the appointment of the administrator, and as to transactions with the deceased, in violation of § 491.010 RSMo.” This court holds that defendant’s third point was adequately preserved in defendant’s motion for new trial.

In support of plaintiff’s contention that defendant waived the error by cross-examining plaintiff in the probate court, plaintiff relies on Moore v. Adams’ Estate, 303 S.W.2d 936 (Mo. 1957). Moore is distinguishable. In Moore, during the proceeding in the probate court, the claimant’s testimony, on direct examination, was limited “to showing in whose handwriting the charges in his books of account were made and when they were made.” Counsel for the executor, on cross-examination, examined the claimant “about entirely new and highly material matters, to-wit, ‘what had been done in the way of repairs and with reference to the agreement which he had with Mrs. Adams.’ ” The court held that cross-examination of the claimant in the probate court “on the new matter of the extent of his labor and the terms of his agreement with Mrs. Adams constituted a waiver of his incompetency at the trial in the circuit court for all purposes relating to that subject matter.”

The flaw in plaintiff’s contention (c), with regard to the trial in the probate court, is that the instant record contains no factual support for that contention. The record is silent as to the content of plaintiff’s testimony on direct or cross examination in the probate court and it is also silent with respect to what objections, if any, were made in that court or what rulings, if any, were made thereon.

In the circuit court defendant’s counsel did conduct an extensive cross-examination of plaintiff and of course the transcript contains that testimony. Most of it, however, dealt with matters which had been elicited (over defendant’s objection) on direct examination.

“It is only where the party insisting upon the incompetency [under § 491.010] nevertheless cross-examines the witness on new matter not touched upon or brought out on the examination in chief that the incompetency is waived and then only as to such new matter. McCune v. Goodwillie, 204 Mo. 306, 102 S.W. 997; Bussen v. Del Commune, 239 Mo.App. 859, 199 S.W.2d 13, 19.” Hegger v. Kausler, 303 S.W.2d 81, 88[1] (Mo. 1957).

The direct and redirect examination of plaintiff covers 55 pages of the transcript. The cross-examination covers 37 pages. Only a small portion of the cross-examination dealt with “new matter.” There was no waiver of the objection with regard to the topics elicited on direct examination.

Defendant’s third point is a valid one.

The judgment is reversed and the cause remanded.

All concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.

      . Plaintiffs four-page statement of her claim was attached to a printed claim form which is the same as the one set forth in Vernon’s Annotated Missouri Statutes immediately following § 473.380. The only portion of the form which was filled in was the forepart which concludes with the signature of the claimant and the jurat of the notary public. Subsequent portions of the form (commencing with that calling for the signature of the administrator with regard to service of all notices, etc.) were not filled in or executed by any person.

      . Notice of the issuance of letters of administration was first published on February 23, 1973. Thus the claim was timely filed within the limitation of § 473.360. Date of filing is also material under § 473.397 dealing with classification of claims.

      . The portion of the printed form mentioned in footnote 2 entitled “Notice of Filing of Claim,” although not filled in, did read: “You have ten days from the service of this notice to file any off-set or counterclaim which you may have against said claim.”

      .In this respect the statute is unlike other portions of the probate code, such as the “non-claim statutes” which “cannot be waived, and, if they are applicable, compliance with said statutes is deemed mandatory and, in effect, jurisdictional.” Strumberg v. Mercantile Trust Company, 367 S.W.2d 535, 538[2] (Mo. 1963).
      Section 473.013 provides that the administration of the estate of a decedent “is deemed one proceeding for purposes of jurisdiction” and “is a proceeding in rem.” The statute also says: “No notice is jurisdictional except the notice by publication provided in section 473.033, unless the provision requiring the notice expressly provides that the notice is jurisdictional.”

      . “Generally a motion which is never called to the attention of the court is presumed to have been waived or abandoned by the moving party, and, where no ruling appears to have been made on a motion, the presumption is, unless it otherwise appears, that the motion was waived or abandoned.” 60 C.J.S. Motions and Orders § 42, p. 63. See also 56 Am.Jur.2d Motions, Rules and Orders § 22, p. 18.

      . “Motions are not specifically authorized by the probate code. However, to raise objections appearing on the face of the record and in other instances, motions are appropriate.” Maus, Missouri Practice, Probate Law and Practice, Vol. 3 § 512, p. 514.

      .See Jensen v. Estate of McCall, 426 S.W.2d 52, 58[8] (Mo. 1968) where the court pointed out that a claim couched in similar language did not purport to be an equitable action for specific performance, the prayer being for a money judgment, and upheld the jurisdiction of the probate court over the subject matter of the claim.

      . “[T]he essential character of the damages, not the amount, is what is contemplated in determining the identity of the transaction. Thus where a plaintiff has a contract for services at a stipulated price (the measure of damages being the contract value) he may nevertheless sue in assumpsit as for quantum meru-it, and recover the reasonable value of the services, not in excess of the contract value— and still he may introduce the contract in evidence to prove his case without changing the cause of action.” Grue v. Hensley, 357 Mo. 592, 598, 210 S.W.2d 7, 11[5] (1948). (Emphasis in original.)
      See also 35 A.L.R.3d 874 Res Judicata — Contracts — Express, Implied.

      . “491.010. Witness’ interest does not disqualify — exceptions No person shall be disqualified as a witness in any civil suit or proceeding at law or in equity, by reason of his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his credibility; provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him, and no party to such suit or proceeding whose right of action or defense is derived to him from one who is, or if living would be, subject to the foregoing disqualification, shall be admitted to testify in his own favor, except as in this section is provided, and where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator; provided further, that in actions for the recovery of any sum or balance due on account, and when the matter at issue and on trial is proper matter of book account, the party living may be a witness in his own favor so far as to prove in whose handwriting his charges are, and when made, and no farther.”

      . The record makes it clear, and plaintiff does not contend otherwise, that attorney Wilson was referring to the statute, § 491.010, and not to a “rule.” The transcript, immediately following Mr. Wilson’s statement, contains this entry: “The book was handed to the judge by Mr. Wilson and the judge is reading the statute he is talking about.”

      . The fact is that Cardwell died intestate. Plaintiff has not attacked, on the basis of that factual discrepancy, the sufficiency of Wilson’s objections. As the opinion reflects, the objections also mentioned that the administrator “is a party to this case” and “is a party to this proceeding.”

      . Section 472.140 authorizes the probate judge, on his own motion, or on the request of an interested person, to direct the making of a stenographic record of any hearing in a probate proceeding.


author: BILLINGS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Robert STAPP, Appellant.
    No. 10766.
    Missouri Court of Appeals, Springfield District, Division Two.
    Dec. 12, 1978.
    Motion for Rehearing and for Transfer Denied Dec. 28, 1978.

      Sandra L. Skinner, Springfield, for appellant.
    John D. Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.
   BILLINGS, Presiding Judge.

Defendant Robert Stapp was tried and convicted of the sale of a controlled substance (marijuana) and duly sentenced. Because of defendant’s failure to comply with the rules governing appellate procedure, we dismiss his appeal.

Sentence was imposed and judgment entered July 29, 1977. Defendant filed his notice of appeal August 5, 1977. On November 4, 1977, the court entered an order extending the time within which to file the transcript to six months from the date of the filing of the notice of appeal. The transcript was filed with our clerk on February 3, 1978.

Rule 81.18 provides: “The transcript on appeal shall be filed with . . . the appellate court within 90 days from the date of filing of the notice of appeal . . .

Rule 81.19 authorizes the trial court to grant a limited extension of time within which to file the transcript, provided certain conditions are met. This rule states: “The trial court may extend the time within which any act may be done under Rules 81.12 and 81.18 in accordance with the subdivision (b) of Rule 44.01. The trial court shall not extend the time for filing the transcript on appeal beyond 90 days from the date of filing in the trial court of the notice of appeal . . . unless the transcript on appeal be ordered in writing from the court reporter within 30 days after the filing of such notice of appeal and a duplicate copy of such written order to the reporter be filed in the case within 15 days thereafter. The trial court shall not extend the time for filing the transcript on appeal for a longer period than six months from the date of the filing in the trial court of the notice of appeal . . .

The transcript, approved by the parties, fails to show a written order for the preparation of the transcript within the required 30-day period following the filing of the notice of appeal and the filing of a duplicate of such request within 15 days thereafter. Consequently, the trial court was, by the terms of Rule 81.19, prohibited from granting the six month extension on November 4, 1977, and was without jurisdiction to do so unless Rule 44.01(b) authorized such action.

Rule 44.01(b) is of no help to defendant. Within the original 90-day period, this rule would have permitted the trial court, “for cause shown” and upon “request therefor”, to order an extension of time as limited by Rule 81.19. After the expiration of 90 days, “upon notice and motion” and a finding of “excusable neglect”, the court, under this rule, was empowered to grant an extension not to exceed six months from the date of the filing of the notice of appeal. The trial court’s order was entered the 91st day following the filing of the notice of appeal. The transcript does not reveal any notice and motion seeking an enlargement of time, nor any assertion of or determination of excusable neglect. There was no compliance with Rule 44.01(b).

Oft-repeated warnings of the necessity of compliance with the rules governing appellate practice have been made by this and other appellate courts of this state. The volume of cases reaching the appellate courts requires adherence to those rules.

The appeal is dismissed.

HOGAN and TITUS, JJ., concur.


author: STEPHAN, Judge.

text:
    Zoe Rene BISHOP, Plaintiff-Appellant, v. BOARD OF EDUCATION OF the FRANCIS HOWELL SCHOOL DISTRICT, ST. CHARLES, Missouri, et al., Defendants-Respondents.
    No. 39974.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Dec. 12, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 12, 1979.
    Application to Transfer Denied Feb. 13, 1979.
    Charles A. Werner, Christopher T. Hex-ter, Schuchat, Cook & Werner, St. Louis, for plaintiff-appellant.
    Paul F. Niedner, Niedner, Moerschel, Ahlheim & Bodeux, St. Charles, for defendants-respondents.
   STEPHAN, Judge.

This is an appeal from a circuit court decision which affirmed an order of the respondent Board of Education of the Francis Howell School District terminating, without a hearing, appellant’s indefinite contract as a teacher with the district. We reverse that decision and remand for further proceedings as hereinafter set out.

Before her dismissal, appellant qualified as a “permanent teacher” with the district. Section 168.104(4), RSMo 1969. The dismissal was therefore cloaked with the procedural safeguards prescribed in the “Teacher-Tenure Act,” §§ 168.102 to 168.-130, and particularly § 168.116. The last cited section provides that a permanent teacher may not be discharged by the district unless furnished with a written statement of the charges against him or her, a notice of a hearing on those charges and a hearing before the board if the teacher so requests. Section 168.116-1. If the reason for the proposed dismissal is incompetency, inefficiency, or insubordination in the line of duty (one of the six grounds for termination specified in § 168.114), such notice must be preceded, by at least thirty days, by written warning “stating specifically the causes which, if not removed, may result in charges” and a conference between the teacher and superintendent “in an effort to resolve the matter.” Section 168.116-2. Section 168.116-3 provides:

“Notice of a hearing upon charges, together with a copy of charges, shall be served on the permanent teacher at least twenty days prior to the date of the hearing. ... If the teacher or his agent does not within ten days after receipt of the notice request a hearing on the charges, the board of education may, by a majority vote, order the contract of the teacher terminated. If a hearing is requested by either the teacher or the board of education, it shall take place not less than twenty nor more than thirty days after notice of a hearing has been furnished the permanent teacher.”

On April 12, 1977, appellant was served with a warning letter such as that contemplated by § 168.116-2. It was signed by the district superintendent. On the following day, appellant was called to a meeting attended by the superintendent and several other of appellant’s superiors, which was apparently intended to serve as the conference mandated by § 168.116-2.

On July 17, 1977, the board, over signature of its president, issued to appellant a document captioned, “NOTICE OF TERMINATION HEARING BEFORE THE SCHOOL BOARD OF FRANCIS HOWELL SCHOOL DISTRICT”. The notice opened with the following:

“Formal notice is hereby given you of hearing upon charges contemplating possible termination of your teacher’s contract with this School District.
Such hearing will be had before the School Board of this School District on August 11, 1977, at the Francis Howell Administration Office at the hour of 8:15 p. m., and will continue from day to day pursuant to adjournment from time to time as set by the School Board.” (Emphasis added.)

There then followed seven charges of incompetency, inefficiency or insubordination. Because of the result reached here, we do not decide the adequacy of the “warning letter” or the sufficiency of the charges. The document contained no reference to a request for a hearing by appellant.

Appellant and counsel appeared at the designated time and place with witnesses and documents to refute the charges. Although the board was conducting a regular meeting, it refused to proceed with a hearing because appellant had failed to request such a hearing within ten days of receipt of the notice, as required by § 168.116-3. Counsel for appellant made several abortive efforts to be heard, which were rebuffed by the board. The board retired into closed session and adopted a resolution terminating the appellant’s contract. A copy of the resolution was forwarded to appellant by the superintendent on August 16, 1977.

Appellant contends, inter alia, that the termination without a hearing violates her constitutional right to due process of law. The board responds that due process requirements are met in this context when an opportunity for a hearing is accorded to a tenured teacher and that appellant waived the opportunity to have such a hearing when she failed to request one, as provided by § 168.116. However, we need not decide this case on the basis of constitutional standards; our reading of the Teacher Tenure Act mandates the conclusion here reached. Although § 168.116 specifically provides that a hearing will be held if requested by the teacher, it also contemplates that the board may request a hearing. Subsection 3 provides in part, “If a hearing is requested by either the teacher or the board of education, it shall take place not less than twenty nor more than thirty days after notice of a hearing has been furnished the permanent teacher.” Any fair reading of the “Notice of Termination Hearing” signed by the board’s president and issued on July 17, 1977, would lead to the conclusion that the board was not only requesting but directing that a hearing be held twenty-five days hence, on August 11,1977. Under such circumstances, a “request” from the teacher for a hearing already ordered by the board would appear to any reasonable mind to be a redundancy. By its unequivocal, unconditional announcement that a “hearing will be had before the School Board of this School District on August 11, 1977” the board effectively exercised its option to request a hearing. Absent the expression of the condition of a request from appellant, the necessity for further action on the part of the appellant was obviated. While it is true that the board need not give legal advice in the notice, State v. Goodbar, 297 S.W.2d 525, 528 (Mo.1957), and that appellant must be held to a knowledge of the law, it is equally true that the board cannot, with impunity, mislead. The board’s refusal thereafter to accord appellant a hearing violated the Teacher Tenure Act and requires reversal and remand. Lindbergh School District v. Syrewicz, 516 S.W.2d 507, 512 (Mo.App.1974).

Upon remand, the circuit court should enter judgment in accordance with §§ 168.-116-4 and 168.120-4 reinstating appellant’s status as a permanent teacher and ordering that she receive compensation for the period of the pendency of her appeal, subject to the doctrine of mitigation, Pollard v. Board of Education Reorganized School District No. III, 533 S.W.2d 667, 671[7] (Mo.App.1976), Dameron v. Board of Education of the Lebanon School District R-3, 549 S.W.2d 671, 677 (Mo.App.1977), as that doctrine is set forth in Wolf v. Missouri State Training School for Boys, 517 S.W.2d 138, 147-148 (Mo.banc 1975). See also Stewart v. Board of Education of Ritenour Consolidated School District R-3, 574 S.W.2d 471 (1978).

Reversed and remanded for further proceedings consistent with the foregoing.

STEWART, P. J., and REINHARD, J., concur.

      . Section 168.116 presents an ambiguity. After requiring service of a “notice of hearing” upon the teacher, it seems to condition the requirement for the hearing itself upon a request from the teacher or the board. What then should such a notice advise: that it is a notice of a right to a hearing? Would such a document fulfill the notice requirement? We do not answer these questions but merely pose them for possible clarification by the General Assembly. Our holding in this case is limited to the unambiguous terms of the notice here involved.


author: CLEMENS, Judge.

text:
    Fay FEDERBUSH, Appellant, v. MARK TWAIN PARKWAY BANK and Richard N. Federbush, Respondents.
    No. 39993.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 12, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 12, 1979.
    Application to Transfer Denied Feb. 13, 1979.

      Greensfelder, Hemker, Wiese, Gale & Chappelow, John J. Bahnak, Jr., St. Louis, for appellant.
    Theodore F. Schwartz, Clayton, for defendant Federbush.
   CLEMENS, Judge.

Conflict of laws case. Plaintiff, divorced wife of defendant Richard Federbush, and mother of his 19-year-old child, sought by execution and garnishment to collect for unpaid adjudicated child support payments. The trial court quashed the garnishment on defendant’s motion because the parties’ child had reached majority under the law of Massachusetts, where she now resides with plaintiff. Plaintiff has appealed.

The issue: Is the father’s obligation to pay child support to be enforced by the law of Missouri where it exists until the child becomes twenty-one, or is that obligation terminated by the law of Massachusetts, where the age of majority is eighteen years?

Plaintiff and defendant were divorced in St. Louis County in 1972. The decree provided plaintiff was to have custody of their 14-year-old child and she be allowed to remove the child to Massachusetts; that defendant pay plaintiff $400 a month for child support.

The child turned eighteen on September 13, 1976 and defendant ceased making child-support payments. He did this on the ground that the child, domiciled in Massachusetts since 1972, had attained majority there at the age of eighteen years, thereby terminating his obligation.

Generally, in Missouri, the obligation to pay decreed child support continues until the child attains majority at the age of twenty-one or has been emancipated, or until such order is modified by the court. Martin v. Martin, 539 S.W.2d 756[1, 2] (Mo.App.1976); Specking v. Specking, 528 S.W.2d 448[3, 4] (Mo.App.1975). Ordinarily, jurisdiction to declare a child’s status is determined by its domicile. It was so stated in Beckmann v. Beckmann, 218 S.W.2d 566[3] (Mo. banc 1949), now relied on by defendant. In that ease, however, the court was ruling on child custody, not child support as here. The Beckmann court did deny child support, but on a different ground— that service by publication did not give the trial court jurisdiction to render a monetary judgment.

When ruling upon a father’s obligation to support his child, the law of the father’s domicile determines the child’s status as a minor. See Yarborough v. Yarborough, 290 U.S. 202, 54 S.Ct. 181, 78 L.Ed. 269[8] (Mo.1933); followed in Berkley v. Berkley, 246 S.W.2d 804[2] (Mo.1952).

In Berkley the defendant-father lived in Missouri and the plaintiff-mother lived with their minor child in California. She sued here to compel the father to support the child. In the trial court the father prevailed, contending he was not liable under California law. Reversing, the supreme court held: “The character and extent of the father’s obligation, and the status of the minor, are determined ordinarily, not by the place of the minor’s residence, but by the law of the father’s domicile. . . . ” We recognize that in Berkley the plaintiff sought to recover on the husband’s common law obligation, for there had been no divorce. That difference does not help defendant because, as ruled in Lodalh v. Papenberg, 277 S.W.2d 548[1, 2] (Mo.1955): “A father has the primary common-law duty and obligation to support his minor children, regardless of whether there is in force a valid order of court requiring him to do so. The order contemplated by the statute, Section 452.070, supra, is a determination of the father’s liability for the support of the minor child and the order and judgment are in effect a substitution for the father’s common-law liability which would otherwise exist.”

In determining the father’s obligation under the Missouri judgment to support his child, we hold the child’s domicile in Massachusetts does not control. Compare the case of Nelson v. Browning, 391 S.W.2d 873[10—13] (Mo.1965) where a minor Missouri resident was injured here and executed a release in Arkansas, permissible under its law. In ruling the release invalid the court held: “The internal law of Missouri, where the cause of action accrued, and not the Arkansas law, governs in determining whether plaintiff was or was not a minor, and therefore whether plaintiff was capable or incapable of executing a valid release.” The court relied on its earlier case of Philpot v. Mo. Pac. Ry. Co., 85 Mo. 164 (Mo.1884), holding: “As to acts done and rights acquired here, the laws of this state and not those of Texas, must determine whether the son was or was not a minor.”

Following these principles, we hold that the law of Missouri, imposing upon defendant-father by unchallenged decree the obligation to support his child until she is twenty-one is the controlling law, not to be negated by the fact that he has no such obligation under the laws of Massachusetts.

The judgment is reversed and the cause remanded with instructions to set aside the quashal order.

REINHARD, P. J. and GUNN, J., concur.