author: CORRIGAN, Special Judge.

text:
    COUNTY OF BOLLINGER et al., Plaintiffs-Respondents, v. Martha LADD, Defendant-Appellant, and Henry Acuff and Harold Glasener, Defendants-Respondents.
    No. 38354.
    Missouri Court of Appeals, St. Louis District, Special Division.
    Feb. 14, 1978.
    Motion for Rehearing and/or Transfer Denied March 10, 1978.

      Buerkle, Buerkle & Lowes, Albert C. Lowes, Jackson, for defendant-appellant.
    Kenneth W. Shrum, Marble Hill, Jim Spain, Bloomfield, for plaintiffs-respondents.
   CORRIGAN, Special Judge.

This action for declaratory judgment was brought by the County of Bollinger to determine the rights of the parties with respect to two roads located in Bollinger County. The suit, instituted in Bollinger County was transferred to the Circuit Court of Cape Girardeau County, and it is from the judgment of that court that this appeal was taken.

The old road in dispute runs south through the lands of Martha Ladd, Harold Glasener, and Henry Acuff. Prior to 1968, it was a county road, open to the public. In 1968, in preparation for the construction of a new road, the judges of the county court agreed with the Ladds that if they would give a right of way for the new road, they could have as their own property that portion of the old road which crossed their property, once the new road was completed. This agreement was reached in the county court with all three judges present but no writing, other than the surveyor’s plat, was ever made. The three judges and Mrs. Ladd testified concerning the agreement, but the trial court indicated that it would not consider this evidence because a county court can speak only through its records and was admitting the evidence in accordance with Supreme Court Rule 73.01, only for the purpose of allowing review by an appellate court.

Because entrance to the old road across Mrs. Ladd’s property had been barricaded by or on behalf of Mrs. Ladd in October, 1975, defendant Harold Glasener cross-claimed against Mrs. Ladd, seeking a declaration that the old road is open and public and further seeking an injunction restraining Mrs. Ladd from obstructing the road and ordering her to remove any obstructions she had placed there. Glasener had used the old road frequently before its obstruction and twice clipped the cable in order to continue using it. The new road does not touch Glasener’s land, and he cannot get to it without crossing Mr. Acuff’s property. The southern end of the old road is still open, but Glasener cannot use this without crossing Acuff’s land except by “going on down and double back and coming back up the old road.” This is nearly impossible when pulling machinery. Several other residents of the community also testified to the difficulty of taking a vehicle or equipment up the southern part of the road to Glasener’s farm.

Since Mrs. Ladd claims the road was abandoned, and it was stipulated that no formal proceedings were instituted to close the road, much of the testimony at trial concerned the use or nonuse of the old road within the past five years.

Eleven witnesses testified they had used the old road on numerous occasions from 1971 through 1974. Two of these witnesses were county employees who bladed the road on at least two occasions between 1968 and 1973.

Defendant Glasener used the old road every weekend and occasionally during the week until it was barricaded. He has also seen others use this road during that time period.

Defendant Ladd saw no one other than Glasener use the old road on weekends since the new one was built and knew of no grading since that time.

After presentation of all evidence, the trial court entered findings of fact and conclusions of law. It determined that members of the public had continued to use the old road after the construction of the new and that public money had been spent on maintenance of the old road since 1968. The court ruled that the old road is a public road and was not abandoned or vacated by nonusage and that Martha Ladd acted unlawfully in obstructing it. She was enjoined from obstructing the road and ordered to remove obstructions she had placed there. From this judgment defendant Martha Ladd appeals.

The first point to be considered is the effect of the oral contract between the county judges and the appellant regarding the status of the old road. The testimony is uncontroverted that the judges had agreed to abandon the old road and return it to appellant in exchange for the right of way for the new road. Even though this agreement was never committed to writing, there appears to be no doubt as to the good intentions of the various parties.

Section 432.070, RSMo.1969, provides that contracts made by counties shall be within the scope of their powers and committed to writing. Abandonment of a road can only be accomplished in accordance with Chapter 228 RSMo.1969.

Appellant contends that the statutory requirements are inapplicable because the oral contract has been fully performed by all parties. However, the thrust of these statutes is to protect the public interest, and that interest cannot be and was not protected by an oral contract to which the public was not a “party”. The only manner in which the public can be made a party to a contract is through statutory compliance. State v. Faith, 180 Mo.App. 484, 490-491, 166 S.W. 649, 651 (1914).

Assuming, arguendo, that an oral contract for abandonment is not per se invalid, appellant contends that the county should be forced to abandon the old road on the theory of implied contract or estoppel. Appellant performed her side of the bargain and argues that the county should be barred from gaining a benefit by retaining title to the old road. In support of her position, appellant relies on Sparks v. Jasper County, 213 Mo. 218, 241, 112 S.W. 265, 271 (banc 1908); Bride v. City of Slater, 263 S..2d 22, 26-27 (Mo.1953); and County of St. Charles v. Rollings, 537 S.W.2d 806, 807-808 (Mo.App.1976). In all three of these cases, although there is some language to indicate some statutory compliance, the matter involved was totally within the contractual powers of the county court. In the case at bar, however, the county court had no authority to bargain for the abandonment of the road short of statutory compliance. For the county judges to say that the road is abandoned does not make it so. Such a promise is inoperable as outside the scope of their powers as provided in § 432.-070, RSMo.1969. In addition thereto, there was no compelling public interest at stake in the cited cases as here where the county court was attempting to divest the public of its vested right to a public road.

The Missouri courts have consistently held that municipalities cannot be held liable either on a theory of implied contract or estoppel “by reason of . . accepting and using the benefits derived from void contracts . . . .” Likes v. City of Rolla, 184 Mo.App. 296, 304, 167 S.W. 645, 647[3] (1914). Without a written contract, even when the other party has performed, no legal liability is created on a theory of satisfaction, estoppel or implied contract.

Clearly, this contract was void because it exceeded the statutory powers of the county court; because it was not committed to writing; and because the vested public interest must be protected from even innocent abuses of power.

The next issue to be considered is whether the old road was abandoned by a nonuser pursuant to § 228.190 RSMo.1969. Once a road has become established as a public road, and there is no contention to the contrary here, the road becomes vested in and inures to the benefit of the public. The right to use cannot be abandoned unless all the public concur. State ex rel. Carter County v. Lewis, 294 S.W.2d 954, 958[4] (Mo.App.1956); Oetting v. Pollock, 189 Mo. App. 263, 271, 175 S.W. 222, 224 (1915); Connell v. Baker, 458 S.W.2d 573, 577 (Mo.App.1970). And the loss of such right of use may result only from the acts and doings of the parties entitled to the public road or highway. Johnson v. Rasmus, 237 Mo. 586, 592, 141 S.W. 590, 591 (1911), Connell, 458 S.W.2d at 577.

In both Lewis and Connell, even though travel on the disputed road had greatly diminished, the court nevertheless held that decreased travel over the road did not work an abandonment, nor affect its status as a public road so long as it was open for use by the public generally and was being used by those who desire or have occasion to use it. For the character of a road as to whether it is public or private is determined by the extent of the right to use it, and not by the extent to which that right is exercised.

Numerous witnesses testified in the case at bar that they had either used the old road or had' observed others use it during the period of time in question. Clearly, there was substantial evidence from which the trial court could have found, and in fact did find, that there had been continuous though intermittent use of the road by the public. Appellant has failed to prove by clear and cogent evidence that the road was abandoned in conformity with Lewis, supra. Hence, we are constrained to find that the old road was not abandoned and title cannot revert to appellant but must remain with the county.

The trial court did not rule on the parties’ rights with respect to the new road. Respondent county argues that appellants’ actions in giving the land to the county and permitting the public to use the new road amounted to an outright common law dedication of her land to public use. To reach this conclusion the county would ignore any evidence of the agreement between it and appellant, including their intent, and would consider only the action and acquiescence of appellant in permitting the county to take, construct, maintain and use the land as a public road.

Addressing the problem of common law dedication, our courts have clearly stated that a property owner may by his actions so express an intention to dedicate that he is estopped to deny that this was his intent. The Missouri Supreme Court announced this principle in School District No. 84 v. Tooloose, 195 S.W. 1023, 1024 (Mo.1917), when it held that:

“All that is necessary to be shown in such cases is an adverse use on the part of the public . . . or a user by the public under such circumstances and for such a period of time, with the acquiescence of the owner, as to imply on his part;a dedication of the land and a prescriptive right thereto on the part of the public by its acceptance and appropriation as a public highway, all of which may be shown by facts and circumstances, as well as positive proof.” (Emphasis added)

Although this principle has remained constant through the years, the appellate courts have somewhat amplified it in Lozier v. Bultman, 286 S.W.2d 43 (Mo.App.1955) and Connell v. Jersey Realty & Investment Co., 352 Mo. 1122, 180 S.W.2d 49 (1944). In Connell the court held that:

“To constitute a common law dedication, the owner must have done something by act or word which would unequivocally point to but one conclusion, namely, that the owner intended to dedicate to public use. Unequivocal means not doubtful, not ambiguous, clear, plain.” 180 S.W.2d at 53[7],

In Tooloose and Lozier the courts found a common law dedication and that the public had used the road in question for at least fifteen years. Viewing the facts of this case in their narrowest sense, appellant permitted the county to take and use her land; the county constructed a road therein and the public used it for seven years prior to the institution of this action; appellant’s acquiescence to the use of her land could easily be construed as a common law dedication under the principle espoused in Too-loose.

A careful analysis of the language in Tooloose and Connell, supra, however, negates the conclusion that appellant’s acquiescence to the use of her land per se resulted in dedication. Tooloose, paraphrased, holds that acquiescence sufficient to show dedication may be shown by facts and circumstances, as well as positive proof. 195 S.W. at 1024.

If dedication can be shown by facts and circumstances, certainly the converse must be likewise valid. Obviously, the appellate court had this in mind when it held in Connell, supra, that unequivocal intent is necessary for common law dedication.

Though we have previously held that the oral contract between the parties was statutorily unenforceable, nevertheless, in view of the law above cited, consideration must be given to the oral testimony of the county judges and appellant for the sole purpose of considering their intent in this transaction. In so doing, we must be cognizant of the longstanding proposition that the private intent of the landowner will not defeat an otherwise valid dedication, Main v. Nash, 212 Mo.App. 689, 245 S.W. 581, 582 (1922).

Here, the uncontroverted evidence was that the county judges offered to abandon the old road to appellant in exchange for her conveyance of the land to build the new road. Obviously, the joint intent of the parties was a promise for a promise. This was not the private intent of only the appellant, but was the underlying intent of all parties on which this oral agreement was bottomed. Appellant performed her side of the bargain, but the county could not. By virtue of this illegal, but innocent, agreement, appellant lost title to the “new road” land and received nothing in return. To permit this to occur would be to violate the basic constitutional protection of a landowner from the appropriation of his land by a condemning authority without compensation. Therefore, we conclude that under all the facts and circumstances of this transaction appellant did not dedicate her land to the public.

Since there was no dedication and since the agreement between appellant and the county was invalid, the construction of the new road was an unlawful appropriation of private property to public use without compensation. Missouri cases clearly establish that where a body having the right to condemn property appropriates it without legal authority, and makes permanent improvements thereon the landowner may recover compensation. The court in Doyle v. Kansas City & S.R.R. Co., 113 Mo. 280, 20 S.W. 970 (1892) held:

“But, where the injury is necessarily of a permanent nature, as in the case at bar, and consists in the absolute taking of a strip of ground, and doing this in such a manner as to incidentally injure the entire property abutting on the strip, there the damage, because of its permanency, will admit of but one recovery, which will obviously include all damages past, present and prospective. . . . This being the case, a judgment of recovery and satisfaction thereof will operate to vest in the defendant company an easement in the land, as much so and as effectually to all intents and purposes as if condemnation proceedings had been regularly instituted and conducted.” (Emphasis supplied) 113 Mo. at 286-287, 20 S.W. at 971.

The same case also sets forth the measure of recovery as the actual value of the land taken for a right of way plus any diminution in value of the land from which it was taken. 20 S.W. at 971[4]. The reasoning of the Doyle case has been followed in other, similar situations in Smith v. City of Sedalia, 244 Mo. 107, 124, 149 S.W. 597, 601 (banc 1912); Tooker v. Missouri Power & Light Co., 336 Mo. 592, 80 S.W.2d 691, 695 (1935); Beetschen v. Shell Pipe Line Corp., 248 S.W.2d 66, 70 (Mo.App.1952); Beetschen v. Shell Pipe Line Corp., 363 Mo. 751, 253 S.W.2d 785, 788 (1952).

The circumstances of the present case are not greatly unlike those of Twiehaus v. Wright City, 412 S.W.2d 450 (Mo.1967). There plaintiffs who were developing a subdivision received permission to connect sewer lines and water lines to the city systems. The court, in passing, noted: “This seems to indicate an original intent to dedicate to public use,” but did not return to this subject. Some months after permission was granted, plaintiffs and the city made a contract under which plaintiffs were to build lines necessary for the proper development of the addition and the city was to reimburse them for construction costs by annual payments from certain revenues to be collected from residents of the addition. The necessary lines were constructed but only partial reimbursement was made. The court held the contract invalid as being in violation of the Missouri Constitution and several statutes and ruled that the city was not estopped to deny that invalidity. 412 S.W.2d at 452. The plaintiffs had sought recovery on a theory of inverse condemnation as well as on the contract, and the Court found that the city had appropriated the sewer lines, destroying and rebuilding part of the system and connecting additional city lines to it. The court held at 412 S.W.2d at 454 that since the city had appropriated the sewer and could not disconnect its lines the plaintiffs were entitled to compensation. 412 S.W.2d at 454. The same rule would seem to govern the instant case where the county has appropriated land by constructing a permanent road thereon.

As respondent county notes, appellant did not request such relief. However, this does not prevent a court from granting it. In Mayor, Councilmen, etc. v. Dealers Transport Co., 343 S.W.2d 40 (Mo. banc 1961), a declaratory judgment suit, the court said:

“Under the Declaratory Judgment Act, the relief should be complete. As said in 26 C.J.S. Declaratory Judgments § 161, p. 374, ‘As a general rule, in awarding declaratory relief, the court should make a full and complete declaration, disposing of all questions of right, status, or other legal relations encountered in adjudicating the controversy . . . 343 S.W.2d at 43[3].

Likewise, in Chapman v. Schearf, 360 Mo. 551, 229 S.W.2d 552, 555[5] (banc 1950), the court held that although defendants did not request affirmative equitable relief, “the trial chancellor in determining the issues of injunctive relief sought by plaintiffs properly undertook to do full, adequate and complete justice between the parties justified by the evidence.” The court in Hoechst v. Bangert, 440 S.W.2d 476 (Mo.1969) cited Chapman in approving injunc-tive relief granted by the trial court to defendants. As in the instant case, appellant had not requested affirmative relief but respondents had requested the court to declare the rights of the parties and to grant specific injunctive relief and such other relief as should be appropriate. The court found that under all the pleadings and the evidence the trial court did not err in granting the injunction.

Where the trial court does not fully adjudicate the rights of the parties, it appears that an appellate court may do so. In Ford v. Boyd, 298 S.W.2d 501 (Mo.App.1957), a suit for removal of trustees, this court said:

“The question now before us is not whether the trial court should have fully ruled these two other questions but whether we should now do so. As said by the Supreme Court in Lins v. Lenhardt, 127 Mo. 271, 29 S.W. 1025, 1027, ‘When an equity cause comes up to this court, it is for hearing de novo, and it will be considered for the most part as if it had originated here, and was to be heard for the first time.’ ” 298 S.W.2d at 507[7],

The same standard of review is applicable to declaratory judgment actions. Rule 73.-01[3], Melton v. Ensley, 421 S.W.2d 44, 47 (Mo.App.1967), and although the court in Ford v. Boyd did not find further relief appropriate in that situation, it would seem proper in the instant case.

We affirm the lower court’s ruling as to the old road and remand the case for a new trial only on the issue of damages that appellant sustained as a result of the appropriation of the “new road” land.

CLEMENS, P. J., and DOWD, SMITH and RUDDY, JJ., concur.


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    Lloyd W. SCHOENHOFF, Plaintiff-Respondent, v. Gary H. OWENS et al., Defendants-Appellants.
    No. 39001.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 21, 1978.
    Motion for Rehearing and/or Transfer Denied March 10, 1978.

      David K. Breed, St. Louis, for plaintiff-respondent.
    Klamen, Summers & Compton, John P. Montrey, Clayton, for defendants-appellants.
   SMITH, Judge.

Defendants appeal from the action of the trial court in refusing to set aside a judgment of $6,426.00 entered against them. The judgment in question was rendered following a trial at which defendants did not appear either in person or by counsel.

The original suit was filed in January, 1971, seeking damages for conversion of certain personal property. The property was in premises owned by defendants which plaintiff had occupied as a tenant. Defendants filed an answer. On January 26,1977, the judgment against defendants was entered.

Defendants’ timely motion to set aside alleged that on January 25,1977, defendant Gary Owens received a letter from his attorney advising that the case was set for trial on January 24, 1977. The case was actually tried on January 25 to the court and judgment was entered the next day. On January 26, Owens was notified by his attorney that the attorney had withdrawn from his representation. Defendants alleged that Gary Owens was confined to bed for two weeks prior to the trial date and was not informed by his counsel of the status of the litigation. The motion further alleged, in conclusory language, the presence of a good and meritorious defense.

At the hearing on defendants’ motion the following largely uncontroverted evidence was developed. The case was set for trial on January 24, 1977. On January 21, Mr. Pentland, defendants’ attorney, requested the court to reset the cause for January 25. This was done, he explained, because Mr. Breed, plaintiff’s counsel, had told Pentland that because of Breed’s health condition he would not be able to try the case and if the case was to be tried Breed would have to get new counsel to represent plaintiff. This explanation was largely confirmed by the declaratory questioning of Pentland by Breed. Pentland notified his clients by mail that the case might be tried during the week of January 24. This letter was received by defendants on January 25 in the afternoon. At that time defendant Gary Owens was confined to bed with a severe knee infection. He had been so confined for two weeks prior to January 25, and was so confined for a week thereafter. On January 25, Pentland did not appear, but Breed and his client did. The court contacted Pentland in trial in St. Charles County and advised him that Breed and his client were present and prepared to proceed. The record would support a conclusion that Breed was prepared to proceed only if the case was non-contested. Pentland stated he could not be present and stated he was withdrawing so that his client could obtain new counsel. Such a withdrawal was filed in the court bearing a date of January 25. There is no indication of record whether it was approved by the court. The court was advised by Pentland that Breed had agreed to recommend a $1,500 settlement to his client, and it was suggested that if the trial were to proceed in the absence of defendants that judgment be limited to that amount. The trial court agreed that it would enter a judgment for that amount upon “Mr. Breed proceeding.” Breed acknowledged the $1,500 recommendation but advised the court that he did not consider himself so limited at trial as “a bird in the hand would have been worth two in the bush.” (Obviously a mathematical miscalculation as it turned out to be worth less than “four in the bush”). Following trial and prior to entry of judgment, the court advised Pentland of the amount of the judgment to be entered. Some dispute does exist in the record about whether Pentland indicated to Breed and the court that his withdrawal was based upon some lack of cooperation with defendants and some difficulty with his fee arrangement. We accept the trial court statement that Pentland indicated “some difficulties with his client.” Gary Owens attempted to contact Pentland on January 25, after receiving the letter but was unable to make contact until January 26, when Pentland advised him of his withdrawal and that a trial had occurred.

Defendants presented no evidence of a defense as such to the conversion action. They did, however, present evidence that the property of plaintiff which they removed was “trash”. We deem this to be evidence of a defense to the amount of damages.

The action of the trial court in overruling a motion to set aside a default judgment, or as here, a non-contested judgment is largely within the sound discretion of the trial court. In order to justify a trial court in setting aside such a judgment, the defendant must establish a meritorious defense and good reason or excuse for default. However, an appellate court is less apt to interfere when a judgment is set aside than when it is not. The general rule is that, where the application, motion to set aside, or hearing thereon discloses a meritorious defense and also shows reasonable diligence or excuse for default or non-appearance and no substantial injury to plaintiff from a delay, the trial court should exercise its discretion in favor of trial on the merits. Whitledge v. Anderson Air Activities, 276 S.W.2d 114 (Mo.1955) [3]; Anspach v. Jansen, 229 Mo.App. 321, 78 S.W.2d 137 (1935). While the negligence of counsel is imputable to the client, such is not the case where counsel abandons the defense of the case without notice to the client. Whitledge v. Anderson Air Activities, supra, [4]; Boeckmann v. Smith, 238 Mo.App. 855, 189 S.W.2d 449 (1945) [1, 2].

Under the peculiar facts of this case, we find the trial court abused its discretion in refusing to set aside the judgment against defendants. No injury to plaintiff from a delay is apparent, and the length of time the case was pending would indicate plaintiff had sensed no urgency. The evidence indicates defendants do have a meritorious defense to the amount of damages. While we cannot and do not condone a failure by counsel to appear for an established court date, it appears that the failure was caused either by a misunderstanding resulting from defense counsel’s attempts to respect Breed’s health problems or because he abandoned his client. In either posture we find no basis for concluding that defendants should be prevented from defending the case on the merits. If defense counsel’s failure was the result of an attempt to accommodate Breed, it was excusable. If it was an abandonment, it was not imputable to the client.

Judgment reversed and cause remanded for trial.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: KELLY, Judge.

text:
    Thomas M. PILLOW, Plaintiff-Appellant, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, a corporation, Defendant-Respondent.
    No. 38104.
    Missouri Court of Appeals, St. Louis District, Division 3.
    Feb. 21, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 10, 1978.
    Application to Transfer Denied May 9,1978.

      Dallas W. Cox, Jr., St. Louis, for plaintiff-appellant.
    Kortenhof & Ely, Frank Strzelec, St. Louis, for defendant-respondent.
   KELLY, Judge.

Plaintiff-appellant, Thomas M. Pillow, a practicing Doctor of Chiropractic, brings this appeal from a judgment of the Circuit Court of the City of St. Louis entered upon an order of the court sustaining the motion of defendant-respondent, General American Life Insurance Company, to dismiss Count II of his Second Amended Petition for failure to state a claim or cause of action upon which relief could be granted, and dismissing Count II of plaintiff-appellant’s petition with prejudice. The trial court made this order dismissing Count II of plaintiff’s petition with prejudice a final judgment for purposes of appeal and this appeal followed.

The sole issue on appeal is whether the trial court erred in dismissing this Second Amended Petition. Because we conclude that the trial court did not err, we affirm. Count II of Plaintiff’s Second Amended Petition reads as follows:

“COUNT II

Comes now plaintiff and for his claim under COUNT II states and alleges:

I

Plaintiff repleads Paragraph I of COUNT I as fully as if herein set out in full.

[I. That defendant General American Life Insurance Company, a corporation, is and at all times mentioned herein was a Missouri corporation, duly organized and existing under law, engaged in the insur-anee business in the City of St. Louis, Missouri, and elsewhere and that said defendant corporation was duly registered in the Department of Insurance of the State of Missouri under the laws of the State of Missouri applying to insurance companies and has duly authorized Stanley M. Richman to act as registered agent and that the office for service of process is 1501 Locust Street, St. Louis, Missouri 63166.]

II

Plaintiff repleads Paragraph II of COUNT I as fully as if herein set out in full.

[II. That the plaintiff is a duly licensed and practicing chiropractor in the County of St. Charles, State of Missouri, and had always maintained and enjoyed a good reputation in such profession.]

III

A. That plaintiff rendered chiropractic treatment to Charles Collier, Robert Lin-hardt, Henry Boster, Winifred Boster, Russell Browne, Samuel Cropper, Darren Hampton, Jr., Tina Linhardt, Sharlene Swinford, Glenda Upton, William D. Upton, Pamela Upton, Robert Merz, Mark Bohn, Deborah Damke, Bruce Bohn, John T. Day, Betty Damke, Virginia Bohn, Roger R. Hol-landsworth, Robert Alsop, Joseph W. Rina-barger, Thomas Edinger, James Chumney, Joyce L. Rhodes, William Wichern, Dennis Cowdrick, Cathy L. Allen, Victor Edinger, Bonnie DeLorez, Nancy Sue Young, Dorothy Claxton, William Lee Richards and Esther Edinger and that there was a contract implied in law and in fact between said plaintiff and said persons that plaintiff would exercise skill in the care and treatment of said patients in consideration of said patient’s payment to said plaintiff of reasonable sums as and for their care and treatment.

B. That there were then and there existing contracts of assignments as per plaintiff’s Exhibits 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56 and 57 attached herewith and made a part hereof between plaintiff and his patients, insureds of defendant, wherein plaintiff was assignee on any claim made by plaintiff of his said patients to defendant for plaintiff’s chiropractic treatment and professional services and bills rendered.

IV

A. That said contracts implied in law and in fact between plaintiff and his said patients were tortiously breached and terminated by defendant and said defendant by and through its agents, servants and employees then and there engaged upon the business of said defendant within the course and scope of their employment with said defendant by writing to plaintiff’s said patients said letters attached herewith and made a part hereof as plaintiff’s Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,18,19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30,31,32,33, 34, 35, 36, 37,38,39,40,41 and 42, and that all of said actions were done maliciously, intentionally and without legal justification or legal excuse to induce, to cause and to procure said parties to terminate their contracts with plaintiff as plaintiff’s patients.

B. That said contracts implied in law and in fact between plaintiff and his said patients were tortiously breached and terminated by defendant and said defendant by and through its agents, servants and employees then and there engaged upon the business of said defendant within the course and scope of their employment with said defendant by defendant breaching its legal obligation to pay plaintiff under its insurance contract with plaintiff’s said patients, when plaintiff had legal rights to receive such benefits as assignee of defendant’s insurance benefits to its insured and plaintiff’s said patients, said assignments signed by Robert Linhardt, Willis J. Rhodes, Harv-el Hampton, Jr., Robert J. Alsop, Joseph W. Rinabarger, Robert Linhardt, Betty Damke, Pearl Allen, Victor Edinger, Bonnie DeLo-rez, Sue Young, Dorothy Claxton, William Lee Richards, Dennis Cowdrick and Victor Edinger, as per plaintiff’s Exhibits 43, 44, 45,46,47, 48,49, 50, 51, 52, 53, 54, 55, 56 and 57 attached herewith and made a part hereof, and that all of said actions were done maliciously, intentionally and without legal justification or legal excuse to induce, to cause and to procure said parties to terminate their contracts with plaintiff as plaintiff’s patients.

V

That Glenda Spencer, Donna Rawley, Roy Caulk, Darlene Sherman, Catherine Reagan, Darren Hampton, Henry Boster, Cathy Allen, Marie Bruers, Rhea Alliston, Charles Collier, Samuel Cropper, Leroy Cruts, Robert Linhardt, Robert Merz, Gerrand Mellen-ger, Sharlene Swinford, Randy Kleischute, Collen Kleischute, Tina Linhardt, Byron Miller, Sue Young, Dorothy Claxton, Dennis Cowdrich, Norma J. Browne, Russell Browne, Harvel Hampton, Margaret Bradbury, Roger Hollandsworth, Calvin Granne-mann, Kenneth Hebb, Winfred Boster, Opal Richards, Betty Damke, Deborah (sic) Damke, Bonnie DeLorez, Joseph Rinabar-ger, Dorothy Rinabarger, William Richards, did so terminate their contracts with plaintiff as plaintiff’s patients as a direct and proximate result thereof thereby damaging plaintiff.

VI

WHEREFORE, plaintiff prays judgment under COUNT II against defendant in the sum of One Hundred Thousand Dollars ($100,000.00) compensatory damages and One Hundred Fifty Thousand Dollars ($150,000.00) punitive damages, together with his costs.”

It is apparent from a reading of Plaintiff’s Second Amended Petition that to ascertain whether plaintiff stated a claim for relief pursuant to Rule 55.05 V.A.M.R., which provides what a pleading setting forth a claim for relief shall contain, reference must be made to the contents of the Exhibits 1 through 57 attached to and made a part of said Petition pursuant to authority of Rules 55.12 and 55.22 V.A.M.R.

It is plaintiff’s position that Count II of his Second Amended Petition pleaded a cause of action for tortious interference with contract. In ruling this Point, the averments of the petition must be construed liberally and favorably to the plaintiff, giving him the benefit of all inferences fairly deducible from the fáCts stated therein. The facts stated in the petition are to be taken as true, and if the facts pleaded and the reasonable inferences to be drawn therefrom, viewed most favorably from the plaintiff’s vantage point, show any ground for relief, the petition may not be dismissed. All pleadings are to be construed so as to do substantial justice, Rule 55.24 V.A.M.R., and exhibits attached to the pleading are a part thereof “for all purposes.” Rule 55.12 V.A.M.R. In reviewing the judgment of a trial court dismissing a petition for failure to state a claim or cause of action, the reviewing court will consider all of the facts set out in the petition together with the exhibits attached thereto to ascertain whether the judgment of the trial court was erroneous. Burckhardt v. General American Life Insurance Company, 534 S.W.2d 57, 63[4, 5, 6, 8 & 9] (Mo.App.1975). A petition is not to be held insufficient merely because of a lack of definiteness or because of informality in the statement of an essential fact, and under modern pleading principles, a petition is not to be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625, 629 — 30[4] (Mo.App.1975); Watson v. Franklin Finance, 540 S.W.2d 186, 188[3, 4] (Mo.App.1976).

In a claim for tortious interference with contract plaintiff must allege facts showing (1) that a contract was in existence; (2) that the defendant had knowledge of the contract; (3) that the defendant induced or caused the breach of the contract; (4) that the defendant’s acts were without legal justification; and (5) that plaintiff was thereby damaged. Tri-Continental Leasing Co. v. Neidhardt, 540 S.W.2d 210, 212[3] (Mo.App.1976); Cady v. Hartford Accident and Indemnity Company, 439 S.W.2d 483, 485-6[8] (Mo.App.1969). The office of pleadings is to present, define and isolate controverted issues so as to advise the trial court and the parties of the issues to be tried and to expedite the trial of the cause on the merits. Walker v. Kansas City Star Company, 406 S.W.2d 44, 54[9] (Mo.1966); In re Estate of Youngblood, 447 S.W.2d 824, 827 (Mo.App.1969). The issue then, is whether Plaintiff’s Second Amended Petition fulfills this requirement.

Defendant contends that the trial court’s ruling whereby plaintiff’s petition was dismissed was not erroneous because the plaintiff failed to set forth sufficient facts which would entitle him to recover for tortious interference with contracts with his patients. It urges that plaintiff failed to allege sufficient facts to support each of the five elements of a cause of action for tor-tious interference with contract.

Missouri is among those states which include as an element of the cause of action for tortious interference with contract that the acts of the defendant inducing or causing the breach of the contract be without justification. Tri-Continental Leasing Co. v. Neidhart, supra; Cady v. Hartford Accident and Indemnity Company, supra; Harber v. Ohio National Life Insurance Company, 512 F.2d 170, 175[4] (8th Cir.1975).

This is one of the elements defendant contends plaintiff’s petition has failed to allege sufficient facts to support.

Since Downey v. United Weatherproofing, Inc., 363 Mo. 852, 253 S.W.2d 976 (1953) it has been the law of this state that one who maliciously or without justifiable cause induces a person to breach his contract with another may be held responsible to the latter for the damages resulting from such breach. Departing from the holding in Glencoe Sand & Gravel Co. v. Hudson Bros. Commission Co., 138 Mo. 439, 40 S.W. 93, 36 L.R.A. 804 (1897) that a claim for relief on the grounds of tortious interference with contract could lie only where the actionable wrong was committed by means of fraud, deceit or coercion, the Court in Downey held that a cause of action for tortious interference with contract would lie also where it was alleged that “the wrongdoer maliciously, that is, with knowledge of the contract and without justifiable cause, induced the breach.”

The allegations in Count II of plaintiff’s Second Amended Petition with which we are here concerned are as follows:

“that all of these actions were done maliciously, intentionally and without legal justification or legal excuse . . .”

Plaintiff’s petition, with the Exhibits attached, reveals that the defendant refused to pay certain of plaintiff’s charges because, in its opinion, they were either charges for treatments or services a chiropractor in Missouri could not legally render or they were not benefits to which defendant’s insureds were entitled under the terms of the group medical payments insurance policy.

While the term “malicious,” when used in connection with a cause of action for tortious interference, alludes to malice in its technical legal sense, that is, the intentional doing of a harmful act without justification or excuse, and does not necessarily include actual malice, that is malice in the sense of spite or ill will, it is conclu-sionary in nature and unless supported by factual pleadings is not sufficient to comply with the requirements of Rule 55.05 V.A. M.R. that a pleading which sets forth a claim for relief contain a short and plain statement of the facts showing that the pleader is entitled to relief.

In so holding, we are not unaware of the question whether the paragraph in the letters from the defendant to its insureds to the effect that the plaintiff’s claims included charges for treatments or services which a chiropractor in Missouri might not render constitutes a matter of law, of fact, or of both. The practice of the chiropractic art is defined in § 331.010 RSMo.1969, as amended by Laws 1969, p. 473 § 1. By definition the practice of chiropractic does not include the use of operative surgery, obstetrics, osteopathy, nor the administration or prescribing of any drug or medicine. So far as we have been able to ascertain there is only a single appellate decision construing the statute. In State v. Missouri Board of Chiropractic Examiners, 365 S.W.2d 773, 779[8] (Mo.App.1963) the court held that ear drops, vitamin pills and placebos constituted “medicine” within the meaning of that term as used in the statute and that a chiropractor in his professional capacity was not authorized to administer or prescribe them for a patient. Since that decision there have been no further judicial interpretations of what a chiropractor may or may not do in the practice of his or her profession.

Defendant argues that in sending these letters to its insureds explaining why it had recomputed the benefits payable under the terms of the group insurance policy and in refusing to pay claims submitted to it by plaintiff on the “Health Insurance Claim Forms” filed as exhibits, it was acting within its legal rights, and therefore, as a matter of law, no liability attached. As authority for this position defendant relies on Orr v. Mutual Benefit Health & Accident Association, 240 Mo.App. 236, 207 S.W.2d 511 (1947).

Orr, supra, stands for the proposition that no liability for procuring a breach of contract exists where the breach is caused by the exercise of an absolute right, that is, an act which one has a definite legal right to do without any qualification. 207 S.W.2d l.c. 515[5]; 84 A.L.R. 63. There are a number of cases so holding. In Cady v. Hartford Accident and Indemnity Company, supra, plaintiff brought suit against the liability insurance carrier for another with whom his automobile had been involved in a collision, for tortious interference with contract. The thrust of plaintiff’s petition was that after the collision he had entered into an oral contract with a body repair shop to repair the damages to his car — “full repair of all damage proximately caused by the collision” — but that the defendant sent one of its claim-adjusters to the body shop and influenced the party at the body shop to perform less than a full and complete repair of the automobile for a sum less than that quoted to plaintiff for the repairs to his car; that as a proximate result of these inadequate repairs the front end of his automobile collapsed while being driven on a public street, placing him in a position of danger, fear and apprehension for his safety.

In affirming the action of the trial court dismissing plaintiff’s petition for failure to state a claim, the court said that in alleging that the defendant “was likely” to be responsible for paying the repair bill under the contract, plaintiff affirmatively alleged that the defendant had an interest in the contract, and therefore any interference by it would not necessarily be wrongful; that in order to state a cause of action, it was necessary that facts be alleged from which it could be found that the interference was not justified. Thus, the court concluded, the petition did not state a claim upon which relief could be granted. At page 485 the court said:

“The absence of justification is an essential element of the claim [for tortious interference with contract].”

These cases recognize the principle of law that one who has a present, existing economic interest to protect, such as a prior contract of his own or a financial interest in the affairs of the person persuaded to breach his contract with another, is privileged to prevent performance of the contract which threatens said economic interest. Prosser on Torts, Second Edition, Ch. 23, § 106, p. 737; 86 C.J.S. Torts § 44, p. 967; 45 Am.Jur.2d Interference, § 30, p. 307. See also Annotation, 84 A.L.R. pp. 83-85.

However, it is not justification to knowingly procure the breach of a contract where the defendant acted with an improper purpose and sought not only to further his own interest, but in doing so employed improper means. 86 C.J.S. Torts, § 44 p. 967.

Plaintiff here, like the plaintiff in Cady, supra, has affirmatively alleged that the defendant had a contract of medical insurance with his patients’ employer whereby these insureds who were also his patients had authorized defendant to pay directly to him those medical and surgical benefits, if any, otherwise payable to them, but not for those charges, if any, which were in excess of the reasonable and customary charges for the services rendered. Exhibits 42 through 57. He thereby alleged the economic interest defendant had in respect to the charges for services rendered and for which he sought payment.

The fatal defect in plaintiff’s Second Amended Petition, Count II, and one which requires we affirm the action of the trial court, is the failure of the plaintiff to state sufficient facts in support of his allegation that defendant’s acts were without justification.

A careful study of the Exhibits 1 through 42, inclusive, attached to plaintiff’s petition demonstrates that defendant refused payment for the following items of treatment: “adjunctive therapy,” “supplements,” “modalities,” “foot levelers,” “pille-pedic,” and “spinal foot stabilizers.” In some of these letters defendant also informed its insureds that the major medical insurance coverage afforded them by the group insurance policy did not contain a schedule of reimbursement for medical expenses; that benefits under the policy were limited to the “covered expenses” definition contained in the policy of insurance; that any expense or portion of expense which exceeded the “customary charge for similar services or supplies” was not covered; that charges had to be in connection with the therapeutic treatment of an injury or sickness; and that the defendant might consider only those charges incurred for services for which the particular practitioner was licensed to perform.

We have found nowhere in Count II of plaintiff’s Second Amended Petition any factual allegations to support his charge that these statements of the defendant are malicious, i. e. the intentional doing of a harmful act without justification or excuse.

The law is clear that it is not every interference with contractual relations which gives rise to a claim for damages. It is only where the interference is wrongful that a cause of action exists.

Defendant, wé believe, had a right to inform its insureds why it had recomputed claims filed with it by plaintiff in order to collect benefits afforded them under the terms of the group insurance policy it had issued to their employer, McDonnell-Douglas Corporation, except where its explanation was false or improper. Where there is room for difference of opinion relative to what services rendered by a practicing physician are covered by a group insurance policy, the mere fact that the insurer challenges said charges and so informs its insured, in the absence of other facts demonstrating malice in the technical sense, has been held to be privileged. National Life and Accident Insurance Company v. Wallace, 162 Okl. 174, 21 P.2d 492 (1933); Peek v. Northern Pac. Ry. Co., 51 Mont. 295, 152 P. 421 (1915).

We conclude that plaintiff has failed to allege sufficient facts to support his claim of tortious interference with contract. Had plaintiff, in the trial court, requested leave to amend his pleading in an effort to overcome this fatal defect, as he might have done pursuant to the provisions of Rule 55.33 V.A.M.R., and had his request been denied, we might be inclined to return this cause to the trial court with directions to afford the plaintiff another opportunity to further amend his petition to state a claim. Plaintiff, however, chose to stand on his pleading in its present form and for that reason we resolve these issues in this court and affirm the judgment of the trial court.

GUNN, P. J., and WEIER, J., concur.

      . The parties hereinafter shall be referred to cupied in the trial court. plaintiff and defendant, the positions they oc-

      . These Exhibits are copies. Exhibits 43 through 57 are copies of “Health Insurance Claim Forms,” some of which were of such poor quality that it became necessary to resort to the use of a magnifying glass in an effort to ascertain their content, and, in some instances, we are not certain that we were able to decipher entries contained thereon which might be important to our decision. Two sets of these copies were furnished; one in the transcript as a part of the Plaintiffs Second Amended Petition and a second set filed with the Clerk of the Court after oral argument. Neither was of good quality. It is the responsibility of the appellant to furnish to this court a proper transcript, Rule 81.12 V.A.M.R. It is implied that in the case of a document, a readable copy be furnished both the trial and the reviewing courts.

        . There is a line of cases holding that justification is an affirmative defense and may not be considered as support of the trial court’s action in sustaining a demurrer unless it appears on the face of the complaint. Herron v. State Farm Mutual Insurance Company, 56 Cal. App.2d 202, 14 Cal.Rptr. 294, 363 P.2d 310 (banc 1961). See also Ringler v. Ruby, 117 Or. 455, 244 P. 509, 46 A.L.R. 245 (1926); 84 A.L.R. 79, Justification IV a. It has been held that it is not necessary to negative justification in an action for interference. Law Research Service of Missouri, Inc. v. Western Union Telegraph Company, 336 F.Supp. 510, 512[2] (E.D. of Mo., 1971); 45 Am.Jur.2d Interference, § 55 Pleading, p. 328.

      . Despite the lack of court decisions construing § 331.010 RSMo.1969 as amended by Laws 1969, p. 474, § 1, there have been a number of Attorney General Opinions on the subject. See: Op.Atty.Gen. No. 32, Geekie, 3-10-53; Op.Atty.Gen. No. 148, Akers, 5-2-68; Op.Atty. Gen. No. 55, Holt, 3-18-69; Op.Atty.Gen. No. 239, Holt, 11-10-70; and Op.Atty.Gen. No. 56, Frappier, 9-12-72.

      . In paragraph III of Count I of plaintiffs petition, he does allege that these letters defendant sent to his patients were “false, malicious, and libelous” and contained language that plaintiff was performing chiropractic services outside the scope of his license. But in Count II he fails to state facts which would describe the nature of the treatments rendered, and he does not plead that these treatments for which he charged come within the coverage afforded by the group insurance policy. Plaintiff did not allege that, as a matter of law, these treatments and services for which he made claim are those which he might render as a chiropractor in this state. He seems to rely on the fact that he charged for these services to support his allegation that defendant acted without justification in informing its insureds of its reasons for denying payment under the terms of the policy of insurance.


author: GUNN, Presiding Judge. KELLY, Judge,

text:
    Nadine EDDINGTON, Appellant, v. ST. FRANCOIS COUNTY R-III BOARD OF EDUCATION, Respondent.
    No. 38716.
    Missouri Court of Appeals, St. Louis District, Division 3.
    Feb. 21, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 10, 1978.
    Application to Transfer Denied May 9,1978.

      Louis Gilden, St. Louis, for appellant.
    Medley, Alexander & McIntosh, Charles W. Medley, James E. Alexander, Farming-ton, for respondent.
   GUNN, Presiding Judge.

Respondent, St. Francois County R-III Board of Education (School Board), terminated appellant’s indefinite contract of employment as a tenured teacher. The circuit court affirmed the School Board’s action and denied her petition for review. Appellant has appealed the circuit court’s judgment, raising five points of alleged error: (1) that there was no substantial or competent evidence to support the School Board’s decision terminating her employment because there was not sufficient proof that appellant’s job performance was deficient; (2) that she had not been given proper notice of the charges against her; (3) that inasmuch as she had filed sex discrimination charges against the School Board and against its members individually in federal district court, appellant was denied due process and a fair hearing, because the School Board had a personal interest in discharging her from employment; (4) that the appellant should have been given the opportunity to present evidence to the circuit court that the School Board was improperly influenced by its attorney; and, (5) that the hearing on the charges against appellant was conducted more than 30 days after the notice of hearing, contrary to § 168.116.3 RSMo 1969. We affirm.

Among the charges that served as a basis for the School Board’s ruling that appellant’s employment as a teacher should be terminated was that her teaching performance was incompetent; that she failed to maintain proper classroom order and disciplinary procedures; and that she failed to properly teach music fundamentals to her students — all in violation of School Board regulations. Without detailing all the evidence, we find that the School Board’s ruling was supported by competent and substantial evidence, not contrary to the overwhelming weight of evidence, and that appellant was given proper notice under § 168.116.2 of the charges against her. Consequently, we are compelled to affirm the School Board’s ruling. Bd. of Ed., Mt. Vernon Schools v. Shank, 542 S.W.2d 779 (Mo. banc 1976); Moore v. Bd. of Ed. of Sp. Sch. Dist., 547 S.W.2d 188 (Mo.App.1977); Aubuchon v. Gasconade Cty. R-1 Sch. Dist, 541 S.W.2d 322 (Mo.App.1977). While there was conflict in the evidence, such conflicts are to be resolved by the hearing tribunal. Moore v. Bd. of Ed. of Sp. Sch. Dist., supra. We thus rule against appellant on her first two points.

Appellant had filed sex discrimination charges in federal district court seeking money damages from the School Board and the superintendent of schools. At the time of the hearing against appellant, the sex discrimination charges were pending. Appellant contends that by reason of the case in federal court she could not receive fair and unbiased treatment from the School Board. She urges that the standards for due process forbade the School Board from participation in adjudication of the charges brought against her. We find insufficient basis to change the trial court’s ruling in this regard. Sections 168.114-168.118 provide the procedures for hearing on termination of a tenured teacher’s indefinite contract of employment. Those procedures were followed here. As stated in Duke v. Meissner, 417 S.W.2d 505, 509 (Mo.App.1967), regarding the validity of a hearing before an administrative body having the jurisdiction, as here, to conduct disciplinary procedures:

“They constitute the sole body before whom an appeal may be heard. We must assume they will honestly and efficiently perform the duties imposed on them by law and accord an impartial hearing on such appeals.”

Using Duke v. Meissner, supra, as a guide, we find that the record fails to disclose that appellant was deprived of a fair and impartial hearing by the School Board. We find that appellant was given a fair hearing in accordance with the statutory procedures. The fact that the School Board, which initiated the charges against appellant, conducted the hearing does not vitiate the proceedings. Rose v. State Board of Registration for the Healing Arts, 397 S.W.2d 570 (Mo.1965); Aubuchon v. Gasconade Cty. R-1 Sch. Dist., supra; Harrisburg R-VIII Sch. Dist. v. O’Brian, 540 S.W.2d 945 (Mo.App.1976). See also Duke v. Meissner, supra. The School Board followed the proper statutory procedures, and we find no basis for holding that the appellant’s hearing was other than fair and impartial despite the fact of the pending sex discrimination case filed by her against the School Board.

Appellant urges us to pay heed to Hortonville Dist. v. Hortonville Ed. Assoc., 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976), noting that in Hortonville, it was said that “[t]he Fourteenth Amendment permits a court to strip” a school board of power given to it by the state legislature if the board’s involvement with teachers proscribes actions consistent with due process. Id. at 494, 96 S.Ct. at 2315. But appellant overlooks the holding in Hortonville which recognizes and upholds the intrinsic power given to the school board by the state legislature to terminate a teacher’s employment without violating the teacher’s due process rights:

“A showing that the Board was ‘involved’ in the events preceding this decision, in light of the important interest in leaving with the Board the power given by the state legislature, is not enough to overcome the presumption of honesty and integrity in policymakers with decisionmak-ing power. Cf. Withrow v. Larkin, 421 U.S. at [35], 47. . . . Accordingly, we hold that the Due Process Clause of the Fourteenth Amendment did not guarantee respondents that the decision to terminate their employment would be made or received by a body other than the School Board.” 426 U.S. at 497, 96 S.Ct. at 2316.

There is no evidence here of actual bias or prejudice by the School Board against appellant. The mere filing of the sex discrimination action by appellant against the School Board does not justify the finding that a prejudice existed against appellant any more than a bias existed in Hortonville, where the school board—vested by the state legislature with teacher termination powers—terminated the employment of striking teachers after failing to negotiate a settlement. Here, the Missouri Legislature invested the School Board with powers to hear and terminate employment of tenured teachers. We see no reason to strip the School Board of those’ powers, particularly as we note that no other procedure for hearing teacher termination proceedings has been provided. Nor do we find justification for imposing some other procedure here.

Appellant contends that the School Board’s attorney improperly participated in the decision for terminating her employment and that the trial court erred in not permitting her to present evidence of the attorney’s participation in the proceeding, thus denying her fair trial. The School Board’s attorney did take active part in the proceedings, examining and cross examining witnesses. He also prepared findings of fact and conclusions of law for the trial court’s consideration and gave advice on how the hearing should be conducted, He also represented all but one of the School Board members in the appellant’s sex discrimination case. But these factors did not deny appellant a fair trial, nor was there evidence of unfairness in the School Board attorney’s actions. The fact that the School Board’s attorney actively participated in the hearing did not render the hearing unfair. Harrisburg R—VIII Sch. Dist. v. O’Brian, supra. We cannot assume that the School Board was improperly influenced by its attorney. Moore v. Bd. of Ed. of Sp. Sch. Dist., supra.

Appellant adverts to § 536.140.4 of the Administrative Procedure Act, providing in pertinent part as follows:

“ . . . the court may in any case hear and consider evidence of alleged irregularities in procedure or of unfairness by the agency, not shown in the record.”
(emphasis added)

Appellant contends that by reason of the foregoing language of the Act, it was error for the trial court not to have received further evidence of the School Board attorney’s involvement in the case. We find no error. Clearly, the language of § 536.140.4 does not mandate the trial court to consider further evidence; it is permissive only. Bloom v. Missouri Board for Architects P. E. & L. S., 474 S.W.2d 861 (Mo.App.1971). And we find no abuse of the trial court’s discretion in refusing to delve further in the matter. The School Board attorney’s involvement in the case was not denied, and his conduct did not deprive appellant of a fair hearing.

Finally, appellant importunes us to find that inasmuch as a portion of the hearing took place more than 30 days after notice of the hearing, it was invalid. Section 168.116.3 provides that the hearing “shall take place not less than twenty nor more than thirty days after notice of hearing has been furnished the permanent teacher.” The hearing commenced on June 21, 1976, the 25th day after the notice, and went to the midnight hour, at which time appellant’s attorney asked for a prorogation of the proceedings. The hearing was continued without objection to June 29, 33 days after the first notice of hearing. Appellant’s suggestion that she was not afforded the statutory right of hearing within 30 days of notice of hearing is destitute of merit. The hearing did commence within the 30 day period prescribed by § 168.116.3. After a full evening’s hearing, and at the behest of appellant’s attorney, it was continued to a date set by the School Board, 8 days later. We find that the statutory interdiction calling for a full hearing within a 30 day period from notice of hearing—if indeed any statutory violation did occur in this instance—was specifically waived by appellant. See § 536.060. Here, there was prompt continuance of hearing initially commenced within the statutory period, albeit the continued hearing was held 3 days beyond the 30 day period. Our waiver ruling is not dissonant with the purpose of the hearing as stated by appellant, “to give the teacher enough time for preparation for the hearing, and not so much time that there is no early certainty of the decision.” There was absolutely no prejudice to appellant resulting from the date of the continued hearing, and her interpretation and reasoning that a statutory time violation nullified the proceedings is too insular.

Judgment affirmed.

McMILLIAN, J., concurs.

KELLY, J., dissents.

KELLY, Judge,

dissenting.

I respectfully dissent.

The law is clear that due process guaranteed by the Fourteenth Amendment to the Constitution of the United States requires an impartial decision maker. Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Case law, both federal and state, generally rejects the idea that the combination of judging and investigating functions in an administrative body is a denial of due process. Hortonville Joint School District No. 1 v. Hortonville Education Association, 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976), Harrisburg R-VIII School District v. O’Brian, 540 S.W.2d 945, 950[5] (Mo.App.1976).

We have here, however, an issue which involves more than knowledge gleaned in a preliminary investigation to ascertain if there is cause to file charges and conduct a termination hearing. The School District, five of the six members of the Board sitting in judgment, and the Superintendent of Schools were named defendants in a Complaint filed in the Federal District Court for the Eastern District of Missouri, Eastern Division, by this teacher, following a finding of reasonable cause by the Equal Employment Opportunity Commission, charging the defendants with sex discrimination. Count I of the Complaint sought a declaration of sex discrimination, an injunction, and damages, both actual and punitive, against all defendants. Punitive damages sought were in the amount of $100,000.00. Count II was an action under 42 U.S.C. § 1983, and Count III, one for violation of the Teacher Tenure Act. Each of these Counts sought essentially the same relief prayed for in Count I. The decision making abilities of those members of the Board who were party defendants in the lawsuit in the Federal Court might have been colored by their involvement in that suit and the possible monetary damages which could be rendered if the probable cause found by the Equal Employment Opportunity Commission is proved correct.

Prior to the commencement of the hearing, appellant sought and was denied an injunction from the Federal Court in which her Complaint was then pending to restrain the defendants from proceeding with the scheduled hearing until after trial of the cause in that Court. The court relied upon the “rule of necessity” in denying the injunction and the right of appeal under state law available to appellant from any adverse decision of the School Board, and the conclusion that the charges then pending before the School Board related to matters which allegedly occurred “long after the institution of this suit.”

When the President of the School Board convened the hearing, counsel for the appellant raised the question whether the School Board could fairly try the issues in this disciplinary proceeding in view of the fact that five of the six members of the Board were defendants in the suit then pending in the Federal Court. He suggested that perhaps an opinion of the Attorney General should be requested on the question whether the Board had the authority to proceed in fairness to Miss Eddington. Counsel stated that it was his opinion that for the School Board to proceed would be violative of his client’s constitutional right to a fair trial and due process under the Constitutions of the United States and the State of Missouri. Counsel for the School Board responded, stating- that this was the same argument appellant had presented to the Federal Court and which had resulted in a ruling adverse to appellant there. Because the President of the Board concluded that this Board was the only Board “left to handle it,” he ordered the hearing to proceed. This issue was again raised after the adjournment of the initial session when, on June 29, 1976, the hearing was reconvened, and the Board was again requested to disqualify itself on the ground that it was not a fair body to hear ’the issues. Despite appellant’s entreaties, the hearing proceeded to conclusion.

The “rule of necessity” relied upon by the Federal Court is that rule which holds that where the legislature has provided for a hearing before a Board or other tribunal, and that Board is the only tribunal clothed with the power of conducting a hearing and resolving the issues, then, as a matter of necessity, where no provision is made for a substitution of personnel making up the Board or for a hearing before another administrative body, disqualification of the Board or any of its personnel will not be permitted. The reasoning for this rule is that to hold otherwise would allow the doors of justice to be barred and the wrongdoer be permitted to pursue his or her activities unchecked for lack of a forum.

The “rule of necessity” has been followed in this State. Rose v. State Board of Registration for Healing Arts, 397 S.W.2d 570, 575 — 576[4] (Mo.1965).

However, I do not believe this rule to be sacrosanct, and in a proper case the Fourteenth Amendment will permit a court to strip a Board of its decision making power where it can be demonstrated that the Board could not act consistently with due process by reason of some personal or financial stake in a matter pending before it and when a conflict of interest is clear. Hortonville Joint School District No. 1 v. Hortonville Education Association, supra, 1. c. 491-492[4],

The crucial question here is whether the fact that the five members of this tribunal were defendants in the suit then pending in the Federal Court is a proper case for application of the “rule of necessity.” Appellant has sued each of these five members of the Board for money damages — “all back wages lost including interest” and $100,000 punitive damages — because they have “engaged in unlawful employment practices with respect to plaintiff because of her sex in violation of 42 U.S.C. 2000 3 [2000C-3] et seq.” The bases for her sex discrimination action were that the defendants failed to promote her, refused her merit increases in pay and demoted her. Under these circumstances can it be said that the five members of the Board did not have the kind of personal or financial stake in the outcome of this hearing which might create or furnish grounds for the belief that they cannot sit in judgment?

The cases cited by the majority opinion do not reach this point. In each, the question was, whether the fact that the Board which initiated the charges also was the Board which conducted the hearing on those charges, was disqualifying. The holding in Hortonville, supra, is not controlling here. The Court there merely held that a showing that the Board was involved in the collective bargaining negotiations preceding the filing of charges and the conduct of the hearing was not enough to overcome the “rule of necessity.” Furthermore, in Hor-tonville there was no factual dispute for the tribunal to decide; it was admitted by the teachers that they were on strike and under Wisconsin law it was illegal for them to strike. The Supreme Court held that the decision in Hortonville was not an adjudicative one, 426 U.S. 1. c. 495, 96 S.Ct. 1. c. 2315, and “does not in the main turn on the Board’s view of the ‘seriousness’ of the teachers’ conduct or the factors they urge mitigated their violation of state law . The Board’s decision was only incidentally a disciplinary decision; it had significant governmental and public policy dimensions as well.”

Here the facts were disputed and the charges contested by the teacher. The hearing was a disciplinary one where the maximum discipline — termination—was imposed. The decision in this proceedings had no significant governmental or public policy dimensions.

I must candidly admit I have found no case holding the fact that the judge, or the tribunal, or one or more of its members, is a party to a lawsuit wherein he or it is sued for damages by the person whose rights will be subjected to decision is, thereby, per se, disqualified from proceeding in the cause.

The issue was raised in Arnold v. McGuiness, 289 F.Supp. 210 (D.C.N.D. of Calif. 1968) where the defendant, a judge, was being sued for an alleged violation of the plaintiff’s civil rights on the ground that the judge was disqualified. The basis for his disqualification, as alleged by plaintiff, was that he acted without jurisdiction when he ordered the plaintiff to appear and show cause why he should not be held in contempt and when he subsequently issued a bench warrant for the arrest of the plaintiff upon the failure of the plaintiff to appear at the scheduled hearing on the order to show cause. Plaintiff’s contention that the judge was without jurisdiction rested on the fact that at the time the order to show cause and the bench warrant were issued the plaintiff had a prior civil rights suit pending against the same judge. The defendant judge moved for dismissal of this second civil rights suit, and in sustaining that motion, the District Court, referring to § 170 of the California Code of Civil Procedure providing for disqualification of judges, said, 1. c. 210:

“An examination of that section reveals that there is no provision for the per se disqualification for the reasons given by the plaintiff. At the most, the fact that Judge McGuiness was a defendant in a law suit brought by Mr. Arnold would only be a ground for claiming that the Judge was disqualified for bias or prejudice under Section 170(5).”

The basis for the dismissal of the civil rights action in Arnold was the failure of the plaintiff to comply, in the contempt proceedings, with the requirements of Section 170 of the California Code of Civil Procedure that a written statement objecting to the hearing and setting forth the facts constituting the grounds for disqualification be presented to the court and filed with the clerk at the earliest practicable opportunity.

Appellant, in her Petition for Review, raised the question of bias and prejudice on the part of the decision makers here and when her counsel appeared in the Circuit Court on August 20,1976, he requested the Court to take evidence on the point pursuant to the provisions of § 536.140.4 RSMo. 1969, as amended Laws 1953, p. 679, § 2. The Circuit Court denied this request. In so doing I believe it erred to the prejudice of the appellant, and I would reverse the judgment of the Circuit Court and remand the cause for an evidentiary hearing on this point.

Our Administrative Review Act makes no provision for a de novo proceeding, nor is there any provision for the School Board which recognizes that it cannot be an impartial decision maker as constitutionally contemplated to obtain an authorized impartial hearing officer or decision maker to sit in its place. This deficiency could be cured by appropriate legislative action.

The Wisconsin Supreme Court, when faced with this dilemma found authority under the Wisconsin Constitution, § 9, Art. 1, to fashion an adequate remedy. It held that the School Board should make the initial determination as to the firing of a teacher. However, in those situations where the teacher was discharged or otherwise disciplined and due process was required, and the School Board was in an adversary position, it provided for the dissatisfied teacher to file a petition and thereby obtain a de novo determination of all issues in any court of record in the county where the School Board or a part of it is located. The issues were to be determined by the court without a jury, unless the judge determined to call an advisory jury. The court was to resolve any factual disputes and provide for a reasonable disposition of the action. Hortonville Education Ass’n. v. Hortonville Joint School District No. 1, 66 Wis.2d 469, 225 N.W.2d 658, 673 (1975).

While I would not necessarily be averse to following the lead of the Wisconsin Supreme Court in fashioning a procedure for resolving this issue, I am of the opinion that with the case in this posture it is the better procedure to remand the cause to the Circuit Court for a determination of the question whether the School Board was disqualified by reason of bias or prejudice and to permit the parties to present evidence on this issue, pursuant to the authority of § 536.140.4 RSMo.1969, as amended Laws 1953, p. 679, § 2.

      . Statutory references are to RSMo 1969.

      . It was at appellant’s counsel’s initiative that the hearing was continued, and it may be implied from the record that he approved the date to which the hearing was continued. Clearly, no objection was made at the time the continued hearing date was set.