text:
    STATE of Missouri, Respondent, v. Leonard A. DONAHUE, Appellant.
    No. 30315.
    Missouri Court of Appeals, Western District.
    June 29, 1979.

      Clifford A. Cohen, Public Defender, Gary L. Gardner and Kevin R. Locke, Asst. Public Defenders, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   PRITCHARD, Judge.

Appellant was convicted by the verdict of a jury of the commission of the crime of robbery in the first degree. The trial began on June 7, 1978. Upon a finding that appellant was a second offender, the court sentenced him to ten years imprisonment in the Division of Corrections.

The sufficiency of the evidence is not questioned. It suffices to say that appellant by use of a handgun robbed the victim, Eula Johnson, of her 1977 Thunderbird automobile.

At the outset of the trial, appellant moved to quash the jury panel upon the grounds that Missouri’s exemption from jury service granted to women upon their exercise of the option not to serve was unconstitutional because it denied his right to have a jury panel selected from a fair cross-section of the community. This issue was ruled in Duren v. Missouri, 439 U.S. -, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), which controls the disposition of this case.

Appellant’s first point presents the matter contained in his motion to quash the jury panel “insofar as Jackson County’s procedure for selection of jury panels allows women an automatic exemption which denies the accused his right to a jury composed of a representative cross-section of society, thus denying appellant his sixth amendment rights.” The state counters and says that appellant presented no competent or relevant evidence to support his motion to quash the jury panel, and notes that there was presented to the trial court only a stipulation concerning the composition of the 1976 jury wheel, and a transcript in the case of State v. John Henry Bass, No. CR77-1146 in the circuit court of Jackson County, Missouri.- [The Bass case was not appealed, but the transcript of the proceedings is filed by reference in several other Duren type cases in this court.]

Both the stipulation for 1976, and the Bass transcript, show a wide percentage discrepancy between the numbers of male and female persons summoned for jury service. Previous cases before this court treat the statistics existing in 1976 as continuing through 1977. The Duren case was handed down January 9, 1979. There are of course no statistics in this case as to the number of women jurors summoned, or who claimed the exemption, for 1978.

In State v. Hawkins, 582 S.W.2d 333 (Mo. App.1979) the cases were noted applying the Duren, supra, rule. Among them are State v. Tate, 582 S.W.2d 329 (Mo.App. 1979), which noted that the automatic exemption of women upon request has in the last few years been spread upon the records of many trial courts, this court and the Supreme Court of Missouri, in a number of cases and was well and generally known. In State v. Coleman, 582 S.W.2d 335 (Mo. App.1979), it was held, “These proofs concede, and these precedents decide, that the systematic gender discrimination in Jackson County venires for the year 1976 which prompted reversal in Duren continued into the year 1977 * * [Latter emphasis supplied.] In the Hawkins case, supra, the statistics in other cases for 1977 were judicially known, demanding reversal and remand for new trial.

In all of the foregoing cases it is clear that the statistical gender discrimination continued into 1977 because of the method used in venire selection. During 1978, because the method had not been changed, the statistical disproportion of women on juries must have continued. This calls into play a rule of evidence which is applicable here: “Proof of the existence at a particular time of a fact of a continuous nature gives rise to an inference, within logical limits, that it exists at a subsequent time; and a fact or relation found to exist at different dates may be of such a nature that its continuance during the intervening period may be legally presumed, * * 31A C.J.S. Evidence § 124(1), p. 222. See Martin v. Sloan, 377 S.W.2d 252, 256, 257 (Mo.1964). The principle is stated in Wig-more on Evidence, 3rd Ed., § 2530, p. 461, and is expounded at § 383, pp. 321, 322, of that work: “It has already been seen (ante, § 190) that the prior or subsequent existence of a quality or condition is evidential of its existence at a given time. This principle is equally applicable in evidencing a habit or cause (sic, course?) of conduct. Its use is most frequent for facts which can at first sight hardly be ranked here in any natural classification, — facts roughly to be described as involving a human status or relation to external affairs; for example, possession, ownership, solvency and the like. * * * The prior or the subsequent existence of such a fact is always evidential to show its existence at a time in issue, upon the general experience that such facts involve a human attitude more or less continuous and permanent. The probability of continuance depends much, of course, on the nature of the specific fact and the circumstances of each case; * * No case has been found applying the presumption to a case precisely like this. Closely analogous, however, is Penn Oil Co. v. Vacuum Oil Co., 60 U.S.App.D.C. 96, 48 F.2d 1008 (1931), which involved the unauthorized and undisclosed substitution of one article for sale for another, held to be a ground for injunction. The substitutions were found to exist in July, 1925, and it was contended that they did not justify an injunction in February, 1929. The court said, p. 1011[5, 6], “The evidence having established sales of substitutes during the period of investigation from July 25 to July 30, 1925, indicated a course of conduct which, like certain other facts, once found to exist, are presumed to continue. 1 Wigmore, Ev. 382. The charge of unfair competition being established, it follows that equity will afford relief by injunction to prevent such unfair competition for the future. Several acts of unfair competition having been shown, we are warranted in concluding that petitioner is willing to continue that course of conduct, unless restrained. (Citing case.)”

The manner of selection of the venire in Jackson County having impermis-sibly resulted in a disproportionate percentage of women serving on juries during 1976 and 1977 having been shown to have existed, must be presumed to have continued as a course of conduct or practice through 1978, and indeed until the Duren case, supra, struck down that practice on January 9, 1979. See § 479.140, RSMo. 1978, which requires that the jury wheel be replaced annually on or before October 1. Aiding this presumption is the case of State v. Buford, 582 S.W.2d 298 (Mo.App.1979). There the 1976 stipulation revealed that 21,884 females declined to serve for no apparent reason other than the election to be excused on that basis. It was said, “The stipulation for 1976 also shows the numbers of those females disqualified because of age, prior jury service, disability, and occupation as teachers. In the 1977 jury wheel chosen by the same process, it is likely that approximately the same number of females declined to serve in 1977 solely by reason of the statutory right to decline jury service; there is no basis to suppose otherwise. To assume otherwise would require this court to presume that over one-half of the persons chosen at random were disqualified for reasons other than election not to serve by gender. It would also require an assumption that the process identical to the 1976 process did not operate to provide a jury wheel of approximately the same proportions as that which the Supreme Court declared improper in Duren.” The same concept of mathematical probabilities applied in the Buford case should be here applied, resulting in this holding that the manner of selecting venires during 1978, could only result in juries serving during that period

and until Duren, supra, not being composed of a fair cross-section of the community.

The matter of appellant’s second point as to claimed improper cross-examination about the details of a prior conviction in an attempt to elicit whether a weapon had been used, is not likely to arise on new trial, and need not be considered.

The judgment is reversed and the case is remanded for new trial.

All concur.


source: Caselaw Access Project

author: FLANIGAN, Chief Judge.

license: Public Domain

text:
    Marcella R. MAYFIELD, Plaintiff-Appellant, v. METROPOLITAN LIFE INSURANCE CO., Defendant-Respondent.
    No. 10855.
    Missouri Court of Appeals, Southern District, Division Three.
    July 24, 1979.
    Motion for Rehearing or to Transfer Denied Aug. 27, 1979.
    Application to Transfer Denied Oct. 10,1979.

      W. H. Winchester, III, Blanton, Rice, Sickal, Gilmore & Winchester, Sikeston, for plaintiff'^appellant.
    John L. Oliver, Jr., Oliver, Oliver & Jones, P. C., Cape Girardeau, for defendant-respondent.
   FLANIGAN, Chief Judge.

Plaintiff Marcella R. Mayfield brought this action against defendant Metropolitan Life Insurance Company for the “double indemnity benefit” contained in an insurance policy issued by defendant on the life of Loomis Mayfield. Plaintiff, the beneficiary named in the policy, is the widow of the insured. The cause was submitted to a jury which returned a verdict in favor of defendant. Plaintiff appeals.

Plaintiff’s first “point relied on” reads: “The verdict and judgment were contrary to and against the weight of the evidence and contrary to the law under the evidence.” This point preserves nothing for appellate review for it violates Rule 84.-04(d) in failing to state “briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.” Similar statements have been held to be defective. See Wombles v. General Am. Life Ins. Co., 541 S.W.2d 45, 46 (Mo.App. 1976); Stokes v. Kelly, 537 S.W.2d 562 (Mo. App.1976); Barber v. M. F. A. Milling Company, 536 S.W.2d 208, 211[13] (Mo.App. 1976); Davis v. Schott, 508 S.W.2d 193 (Mo. App.1974); Bowers v. Spinaio, 421 S.W.2d 790, 792[3] (Mo.App.1967); State v. Koch, 272 S.W.2d 22, 25[2] (Mo.App. 1954).

Whether a jury verdict is against the weight of the evidence is a question for the trial court alone. Wilcox v. Coons, 362 Mo. 381, 241 S.W.2d 907, 917[25] (1951). “The statement that the verdict is against the greater weight of the credible evidence presents nothing for review because appellate courts do not weigh the evidence in a case tried before a jury.” State ex rel. State Highway Commission v. Twin Lakes Golf Club, Inc., 470 S.W.2d 313, 315[3] (Mo. 1971). See also Neavill v. Klemp, 427 S.W.2d 446, 449[13] (Mo.1968); Homeyer v. Wyandotte Chemical Corp., 421 S.W.2d 306, 309[3] (Mo.1967).

Plaintiff advances three additional “points relied on,” which will be considered together for the reason that each of them attacks the propriety of Instruction No. 3, given at the request of the defendant. One of these points also challenges the propriety of Instruction No. 4. Each of the challenged instructions is set forth below.

Plaintiff’s criticisms of Instruction No. 3 include the charge that it is confusing and misleading. Plaintiff challenges Instruction No. 4 on the ground that it “should have been modified to place the burden of proof upon defendant to cause the jury to believe the propositions necessary to support the claims set out in Instruction No. 3.”

On October 30, 1974, Loomis Mayfield was admitted to the Missouri Delta Community Hospital at Sikeston, Missouri. The diagnosis on admission was “acute diverticulitis.” The initial treatment consisted of medication and bed rest. The attending physician was Fred Thornton, M.D. In the early morning hours of November 3, 1974, Dr. Thornton performed surgery consisting of an exploratory laparotomy and colostomy.

During the course of the surgery Loomis was anesthetized and an endotracheal tube was inserted. The tube, according to Dr. Thornton, “allows the anesthetist to breathe for the patient while he is paralyzed.” Dr. Thornton testified that the use of the tube was “an essential part of the surgical treatment.” Following the surgery Loomis, with the tube still intact, was transferred to the intensive care unit.

At 4:30 p. m. on November 3, 1974, while Loomis was in the intensive care unit, the tube became dislodged from his trachea. Several minutes passed before the tube could be “reinstated.” During those minutes, the parties stipulated, there was “an inadequate supply of oxygen to the blood which led to the brain of Loomis.” The parties further stipulated: “The hypoxic episode and resultant cerebral edema and cerebral necrosis were the direct and proximate result of a lack of oxygen when the endotracheal tube became dislodged.”

Immediately following the tube dislodgement Loomis became comatose and remained in that condition until his death. On November 12, 1974, he was transferred to Baptist Memorial Hospital in Memphis, Tennessee, where he remained until his death on January 6, 1975. An autopsy was performed by Marvin P. Meadors, M.D., a pathologist.

The only oral evidence was introduced by plaintiff and it consisted of the testimony of Pamela Allred, who was the “medicine nurse” in the intensive care unit, and the testimony of Dr. Thornton. Mrs. Allred described the tube dislodgement incident. It was her testimony that the tube was out of place for approximately 15 minutes. She said she did not know “how the tube came out — no one knows.”

Dr. Thornton testified that the tube was inserted at the start of the surgery and was left in place when Loomis was taken to the intensive care unit. After Loomis was placed in that unit, Dr. Thornton “saw him frequently during the course of the day and he seemed to be doing well, making a rather standard recovery.” At 4:45 p. m., minutes after the dislodgement had occurred, Dr. Thornton was notified of the incident and “got there as quickly as I could and reinserted the tube.” On the doctor’s arrival Loomis’s “color was black, he was markedly cyanotic and his heartbeat was 14 per minute the normal being about 80.” After the tube was reinserted Loomis was breathing but he was unconscious.

Dr. Thornton testified that the dislodgement of the tube “was not a part of my prescribed treatment.” Dr. Thornton interpreted the autopsy report to mean “that the final cause, the thing that really killed Loomis, was the pseudomonas septicemia, and he had gotten this because he was unprotected with his necrosis of the brain or death of the brain.”

Dr. Thornton also testified that in his opinion Loomis died “as a result of his cerebral cortical necrosis and complications that resulted therefrom — the proximate cause of the cerebral cortical necrosis was the hypoxic episode that occurred when the tube was dislodged.” The witness defined the term “hypoxic episode” as “the length of time he went without oxygen.”

Dr. Thornton also testified, in essence, that in his opinion Loomis would have survived if the tube had not dislodged.

The material provisions of the insurance policy read:

“DOUBLE INDEMNITY BENEFIT

The Company will pay to the Beneficiary, subject to the provisions of this policy, an additional sum equal to $5,000, upon receipt of due proof that the death of the Insured occurred, while this benefit is in effect, as the result, directly and independently of all other causes, of bodily injury caused solely by external, violent, and accidental means.

Risks Not Covered — Such additional amount will not be payable if the Insured’s death:

(b) is caused or contributed to, directly or indirectly, by disease or bodily or mental infirmity, even though in such case bodily injury caused solely by external, violent, and accidental means is the proximate cause of death;

(c) is caused or contributed to, directly or indirectly, by infection of any nature, except septic infection incurred through an external visible wound sustained through external, violent, and accidental means;

(d) results, directly or indirectly, from medical or surgical treatment.”

The parties assign different labels to Instruction No. 3. Plaintiff takes the position that Instruction No. 3 is an affirmative defense instruction based, at least in part, on a policy exclusion. Plaintiff cites Gennari v. Prudential Insurance Co. of America, 335 S.W.2d 55 (Mo.1960). In that case an action was brought on an insurance policy which provided for a double indemnity benefit payable for death by accidental means. The defendant pleaded that the insured’s death resulted from disease. The policy contained a clause to the effect that the double indemnity benefit was not payable if the death resulted “directly or indirectly from bodily or mental infirmity or disease in any form.” The supreme court said, at 61, that an allegation by the defendant that the death resulted from disease “is not the allegation of an affirmative defense and the burden thereon does not rest upon the defendant.” The court also said that the “clause in the policy relative to death from bodily or mental infirmities or disease is not an exception to the general liability clause governing double indemnity and is, as the St. Louis Court of Appeals viewed it, essentially a redundant statement.” (Emphasis added.)

Plaintiff states that, under Gennari, the “disease" ground in Instruction No. 3 is not an exclusion and that possibly the same is true with respect to the “infection” ground contained in that instruction. Plaintiff argues, however, that the “medical or surgical treatment” ground of Instruction No. 3 “is a true exception to the general liability clause” and, as such, is an affirmative defense.

Plaintiff then argues that Instruction No. 4 is erroneous because it violated the Notes on Use under MAI 3.01 in that it failed to inform the jury that the burden was on the defendant with respect to the matters submitted in Instruction No. 3. Plaintiff relies on Arnel v. Roettgen, 530 S.W.2d 20 (Mo. App.1975) where the court held, in a personal injury action, that the burden of proof instruction was erroneous in omitting to tell the jury that the burden was on the defendant with respect to the affirmative defense of contributory negligence and rejected the defendant’s contention that the plaintiff invited the error by preparing and submitting the erroneous burden of proof instruction. The court in Arnel said, at 23, “Error in failure to comply with MAI 3.01 should not be judged on the basis of who submitted the defective instruction, but rather on the basis of whether the error is prejudicial.” The court held the error to be a prejudicial one.

At one place in its brief defendant refers to Instruction No. 3 as “an affirmative defense instruction or an affirmative converse instruction.” Later in its brief defendant, arguing that Instruction No. 3 is “a pure MAI 33.05 affirmative converse” instruction, relies on Restaurant Industries, Inc. v. Lum’s, Inc., 495 S.W.2d 668 (Mo.App.1973) for the proposition that it is not error for the trial court to fail to modify MAI 3.01 to tell the jury that the burden was on defendant to cause the jury to believe the proposition necessary to support defendant’s affirmative converse, also called a Third Method Converse, instruction.

It is unnecessary to rule whether Instruction No. 3 is an affirmative defense instruction or is an affirmative converse instruction. If that portion of Instruction No. 3 dealing with “medical or surgical treatment” is an affirmative defense, based on a policy exclusion, the burden was on defendant to prove the facts which would make the policy exclusion applicable. Mission Insurance Company v. Ward, 487 S.W.2d 449, 451[3] (Mo. banc 1972).

If it be assumed, arguendo, that Instruction No. 3 is, as defendant at times claims it to be, an affirmative converse instruction, defendant’s use of it “carries with it the risk of nonpersuasion” [Notes on Use — MAI 33.05], and it is at least arguable that it does not follow the format of MAI 33.05. In addition, plaintiff’s assertion that Instruction No. 3 is confusing and misleading has some merit.

Instruction No. 3 presents the three enumerated grounds disjunctively. Looking only at the third ground, paragraph FIRST reads: “Loomis F. Mayfield died resulted from medical or surgical treatment.” The preparer of the instruction probably intended that portion of the instruction to mean, “the death of Loomis F. Mayfield resulted from medical or surgical treatment,” but even if that benevolent construction be placed upon it, paragraph SECOND may add confusion when it is applied to the third ground. With respect to the third ground paragraph FIRST requires a belief that the death resulted from medical or surgical treatment and paragraph SECOND requires that the death be the direct result. To say the least, the dual requirement of result, one “direct” and one undescribed, lacks clarity.

The matters touched upon in the preceding paragraph are neither pursued nor ruled for the reason that this court holds that Instruction No. 3 was prejudicially erroneous in that there was no evidentia-ry support for the proposition set forth in it that the death of Loomis directly resulted from medical or surgical treatment.

Defendant asserts that plaintiff’s evidence furnishes support for the proposition that the death of Loomis directly resulted from medical or surgical treatment. Defendant refers to the evidence concerning the use of the endotracheal tube and the incident involving its dislodgement. Defendant argues that the use of the tube was “medical or surgical treatment” and indeed such was the testimony of Dr. Thornton. However, Dr. Thornton also pointed out that the dislodgement of the tube was not a part of his treatment.

Defendant’s excellent brief cites cases involving accident insurance policies containing similar exclusions with respect to medical or surgical treatment. The cited cases are: McKay v. Bankers Life Co., 187 N.W.2d 736 (Iowa 1971); Wilson v. Travelers Ins. Co., 29 A.D.2d 312, 287 N.Y.S.2d 781 (1968); Provident Life & Acc. Ins. Co. v. Hutson, 305 S.W.2d 837 (Tex.Civ.App.1957); Wilson v. Business Men’s Assur. Co. of America, 181 F.2d 88 (9th Cir. 1950); Pitman v. Commercial Travelers Eastern Acc. Ass’n., 284 Mass. 467, 188 N.E. 241 (1933); Westmoreland v. Preferred Accident Insurance Co., 75 F. 244 (5th Cir. 1896). These authorities are not controlling.

In McKay, while performing a biopsy on the insured, the physician severed a blood vessel. “Profuse bleeding resulted which caused” the death. In Wilson v. Travelers Ins. Co., during the administration of anesthesia, an increase in the pressure in the veins caused the brain to swell and push down against a tumor. The sudden pressure resulted in a depression of respiration and an insufficient amount of oxygen to sustain the action of the heart. In Provident, during the performance of a pneu-moencephalogram, a brain stem tumor was caused to hemorrhage, resulting in death. In Wilson v. Business Men’s, a two-to-one opinion, the death of the insured resulted “from an embolism which was brought about by the ‘extraordinarily violent coughing, choking and snoring of the insured resulting unforeseeably from the routine administration of opiates and sedatives incident to the operation.’ ” In Pitman the operating surgeon used a contaminated instrument which fatally infected the insured. In Westmoreland “the patient — in part at least, according to plaintiff’s petition — died from” the administration of chloroform.

In each of the foregoing cases the administration of treatment played the fatal role. In the case at bar the evidence, if believed by the jury, supported a finding that the cessation of treatment, occasioned by the dislodgement, was the death-producing factor. There is no evidence to show that the dislodgement of the tube inflicted a physical injury. It was merely a matter of the tube, upon dislodgement, no longer performing its beneficial function.

Instruction No. 3, so defendant asserts, requires a direct causal connection between treatment and death. That requirement is not met by evidence showing a direct causal connection between lack of treatment, or mere interruption of treatment, and death. A requirement of direct causal connection between treatment and death (or fatal injury) is not satisfied by a mere showing that the death or injury occurred during treatment. Causal relationship, rather than mere time relationship, must be shown.

If a person were receiving respiratory sustenance from an oxygen tent, and the tent quit functioning because of a power failure due to an act of God, the resultant death would be attributable to the act of God but it would not be accurate to say that the death resulted from treatment. It is no answer to say that in the hypothetical instance there was no negligence while here there may have been negligence on the part Of the hospital authorities in failing to supervise the patient to see that the tube remained in its proper place. Neither Instruction No. 3 nor the policy speaks in terms of the defendant being exonerated by reason of negligence (active or passive) on the part of the hospital. The proposition in the instruction is that the defendant is relieved from payment because death was caused by treatment. The trial court erred in giving Instruction No. 3 because it lacked evidentiary support.

This appeal does not involve the question of the sufficiency of plaintiff’s evidence to bring the circumstances within the provisions of the insuring clause of the policy. Defendant has not raised that issue, if such it be, and this opinion does not address it.

The judgment is reversed and the cause remanded.

BILLINGS, MAUS and GREENE, JJ., concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R.

      . “ ‘Instruction No. 3
      Your verdict must be for Defendant if you believe:
      FIRST: Loomis F. Mayfield died either
      (1) From disease, or,
      (2) From infection of any nature, or,
      (3) Resulted from medical or surgical treatment and
      SECOND: That Loomis F. Mayfield’s death was the direct result of any one or more of the conditions referred to in Paragraph First.’
      Not in MAI. Submitted by Defendant.”
      “ ‘Instruction No. 4
      In these instructions you are told that your verdict depends on whether or not you believe certain propositions submitted to you. In determining whether or not you believe any proposition, you must consider only the evidence and the reasonable inferences derived from the evidence. The burden is upon plaintiff to cause you to believe the propositions necessary to support her claim against defendant. If the evidence in the case does not cause you to believe a particular proposition submitted or if you are unable to form a belief as to any such proposition, then you cannot return a verdict requiring belief of that proposition.’ MAI 3.01 — Submitted by Plaintiff.”

      . For a definition of an “affirmative converse” instruction see Morris v. Klein, 400 S.W.2d 461, 465 (Mo.App.1966). For a discussion of what constitutes “an affirmative defense” see Semo Grain Co. v. Oliver Farms, Inc., 530 S.W.2d 256, 258 (Mo.App.1975).
      See “Converse Instructions Under MAI,” 42 Mo.L.Rev. 175 (Spring 1977), an excellent article written by Prof. Elwood L. Thomas. At pp. 200-206 the author discusses the affirmative converse instruction. He points out that MAI No. 1.03 prohibits the use of a sole cause instruction and says, at 203: “However, any affirmative converse instructions, which are authorized by MAI 33.05, run a high risk of being sole cause instruction.” The author closes with the admonition, “Do not use the affirmative converse instruction.”

      . Note that paragraph SECOND of Instruction No. 3, as applied to medical or surgical treatment, requires that the death of Loomis was the direct result of medical or surgical treatment. Paragraph (d) of the policy, set forth earlier in the opinion, eliminated coverage if the death resulted “directly or indirectly” from medical or surgical treatment.

      . Dr. Thornton testified for the plaintiff. In cross-examining Dr. Thornton defendant’s counsel sought to elicit testimony minimizing the significance of the episode involving the tube dislodgement. The cross-examination emphasized that the incident affected the cortical portion of the brain rather than the medullary portion and that the latter controlled breathing. The doctor informed counsel that his line of questioning was creating the impression that after the incident Loomis “had a normal respiratory system because his medulla was okay” but the doctor stated that “in fact he did not.”

      . “Considering this record, there is no evidence from which any jury could have found as a fact that Brand’s hernia caused the pricking of his artery. Such a verdict would have been as far-fetched as to find that, had the ceiling fallen while he lay strapped to the operating table, the hernia that brought him to the table caused or contributed to the injury produced by the falling plaster.” Aetna Life Ins. Co. v. Brand, 265 F. 6, 7 (2nd Cir. 1920).
      In Reid v. Aetna Life Ins. Co., 440 F.Supp. 1182 (1977), affirmed w/o opinion, 588 F.2d 835 (7 Cir. 1978), the court stated a hypothetical case of a mad man shooting a patient undergoing medical or surgical treatment. The court said, “It may be conceded that the mere fact that medical or surgical treatment is going on at the time does not preclude liability for such an accidental death; but quite obviously in such cases the death could not be said to have been as a consequence of the medical treatment.”


author: WASSERSTROM, Judge.

text:
    Skipper R. HEDGES, Plaintiff-Appellant, v. DEPARTMENT OF SOCIAL SERVICES OF MISSOURI and Personnel Advisory Board of Missouri, Defendants-Respondents.
    No. KCD 30395.
    Missouri Court of Appeals, Western District.
    June 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 31, 1979.
    Application to Transfer Denied Sept. 11, 1979.

      David H. Dunlap, Campbell, Gilmore, Erickson, Cottingham, Morgan & Gibson, Kansas City, for plaintiff-appellant.
    John D. Ashcroft, Atty. Gen., Terry G. Allen, Asst. Atty. Gen., Donald Kammerer, Director, Division of Investigation, Dept, of Social Services, Jefferson City, for defendants-respondents.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   WASSERSTROM, Judge.

Plaintiff filed a petition in the circuit court for a review of his dismissal from employment by the Missouri Department of Social Services. The circuit court dismissed plaintiff’s petition, and he appeals.

The cause was submitted on an agreed statement of facts. On October 1, 1976, plaintiff received a provisional appointment as an investigator for the Department of Social Services. On March 3, 1977, the Department filed a request with the Personnel Advisory Board for an extension of plaintiff’s probationary employment period for an additional six months, so that the probationary period would expire October 1,1977, instead of April 1, 1977. That extension was granted in writing, but no notice of that extension was ever served upon plaintiff.

On April 7, 1977, the Director of the Division of Investigation of the Department of Social Services sent written notice to plaintiff that he was being suspended from employment for 20 days “pending an investigation of allegations arising out of your activities of last night.” On April 14, 1977, the Director of the Department notified plaintiff that his employment was being terminated.

Plaintiff filed an appeal from each of those actions. However, on April 22, 1977, the Director and Secretary to the Personnel Advisory Board advised plaintiff’s lawyer by letter that the personnel records showed that plaintiff was not a regular employee and therefore not entitled to appeal: “His original probationary period was extended until October 1, 1977, as a result of a request from James F. Walsh, Director, Department of Social Services, dated March 3, 1977. Under Chapter 36 RSMo only regular employees may appeal a suspension or dismissal to the Personnel Advisory Board. However, the complete file in this case will be presented to the Board at its May meeting for an official ruling on jurisdiction.” The matter was presented at a meeting of the Board held May 18, 1977, and the Board declined jurisdiction for the reason stated in the letter of April 22.

The Point Relied On by plaintiff in connection with this appeal is that he was entitled to appeal to the Personnel Advisory Board because he had become a “regular employee” on April 14, 1977. Defendants, on the other hand, contend that plaintiff had no right to appeal because on that date plaintiff was still a “probationary employee.” The question as to plaintiff’s status therefore constitutes the controlling issue in this case.

The governing statutory provisions are contained in Chapter 36, RSMo 1978. Section 36.020(6) defines a “probationary employee” as one who is serving a probationary period of employment. Section 36.-020(12) defines a “regular employee” as one who has successfully completed a probationary period. The meaning of “probationary period” is in turn defined by § 36.250.1. That section states that there shall be a minimum probationary period of not less than two months and a maximum of six months, provided that the appointing authority may request the extension of the probationary period up to a total of twelve months from the date of appointment.

Section 36.370 deals with suspensions and states that any regular employee suspended for more than three days may appeal under the provisions of § 36.390. Section 36.380 deals with dismissals and provides that any regular employee shall be entitled to receive written statement of the reason for dismissal and shall have a right to appeal to the Board under the provisions of § 36.390.

Putting together all of the provisions just summarized, it would seem clear that on April 14, 1977, plaintiff was still in a probationary status so far as the statutes are concerned and therefore would not be entitled to appeal the termination of his employment. However, plaintiff challenges that conclusion in reliance upon an administrative rule set forth in 1 Code of State Regulations 20-3.040(2): “When an extension has been approved by the director, the appointing authority shall notify the employee in writing of the extension and the reasons therefor.” Plaintiff argues that he did not receive notice of the extension prior to the extension of his original probationary period, and that by allowing him to work beyond the probationary period the state automatically conferred upon him the status of a tenured “regular employee.”

The greatest difficulty with that argument lies in its assumption that the requirement of notice of the extension is mandatory, so that a failure to give such notice renders the extension null and void. With respect to whether a statutory requirement (and by analogy a requirement created by administrative regulation) is mandatory or merely directory, the general rule has been stated frequently that when the statute provides what results shall follow a failure to comply with its terms, it is mandatory and must be obeyed, whereas, if it merely requires certain things to be done and nowhere prescribes the results that shall follow if such things are not done, the statute is merely directory. State ex rel. Dietrich v. Schade, 167 S.W.2d 135 (Mo.App. 1943); State ex rel. Ferro v. Oellermann, 458 S.W.2d 583 (Mo.App.1970); Trantina v. Board of Trustees of Fire. Retire. Sys., 503 S.W.2d 148 (Mo.App.1974); Conner v. Herd, 452 S.W.2d 272 (Mo.App.1970).

In the present case, no statute requires the notice in question, and even the regulation which is the only authority setting up the requirement specifies no penalty or consequence for nonnotification. Therefore, under the general rule stated above, the requirement here is only directory.

Moreover, in determining whether a requirement is mandatory or directory, the cases look at the effect of ruling one way or the other. State ex rel. Hay v. Flynn, 235 Mo.App. 1003, 147 S.W.2d 210 (1941); Granite Bituminous Paving Co. v. McManus, 144 Mo.App. 593, 129 S.W. 448 (1910). Here, the provision for an extension of a probationary period is beneficial for both the employee (who is thereby given a further opportunity to prove his qualifications for regular employment) and also to the state (which is thereby given an opportunity to further test a potential employee without having that aspirant frozen into place). More would be lost than gained by a declaration that the requirement of notice is mandatory as a condition of validity, and we therefore conclude that the requirement of notice should be treated as merely directory, at least unless the employee can show prejudice from not having received the notice.

Plaintiff asserts that prejudice does arise from the lack of notice in two ways. He theorizes, first, that if he had received timely notice, then he would have known that his chances for permanent employment were at best risky and that he could then have quit voluntarily and thus have avoided a record of dismissal. This suggestion is purely hypothetical and carries no persuasion. The record contains no indication that plaintiff would have considered quitting or that he had any other opportunity for employment. Moreover, his suspension occurred a short seven days after the expiration of the original probationary period. Certainly upon that suspension he should have realized that his continued employment was at best risky and he could have then voluntarily quit if he had desired to do so, but no such action was taken by him.

Plaintiff argues as a second basis for prejudice that if he had been given timely notice he could have challenged the extension of the probationary period by court action. The short answer to this is that plaintiff did in fact institute a court action, but he has not at any time undertaken to show that the appointing authority did not have a proper basis upon which to be doubtful of plaintiff’s ability and therefore for requesting an extension of the probationary period. Assuming that plaintiff had a right to judicial review of the grounds for extension, he could have and should have presented his contention to the circuit court in the present action.

The trial court found that: “I do not see that Mr. Hedges in any way was prejudiced by the delay in receiving notification that his status was not a permanent one.” Plaintiff has failed to carry the burden of showing prejudice, and the quoted finding is entitled to affirmance under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

Plaintiff has cited a number of authorities from other jurisdictions to support his claim that he had acquired tenured status. Each of those cases is distinguishable either because of difference in governing statutory provisions or because of factual differences, or both.

In the argument portion of plaintiff’s brief, he also attempts to argue that the denial to him of a hearing violates constitutional due process. That argument will not be considered because it was not properly preserved either in the petition for review filed in the circuit court nor in the Points Relied Upon in the brief filed in this court.

Affirmed.

All concur.


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Robert Louis GOREE, Appellant.
    No. 30542.
    Missouri Court of Appeals, Western District.
    June 29, 1979.

      David M. Strauss, Public Defender, 13th Judicial Circuit, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. 'Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J„ and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Robert Goree was convicted by a jury of stealing a motor vehicle §§ 560.156 and 560.161, RSMo 1969, and sentenced as a second offender to imprisonment for five years. On this appeal Goree contends the court admitted evidence of other crimes when it allowed the arresting officer to state that he arrested Goree for operating a motor vehicle without the owner’s consent and as a fugitive from Columbia, Missouri. Affirmed.

Goree was arrested in November, 1977, in St. Louis when a police officer became suspicious of his activities in an alley around the trunk of a 1977 Olds Cutlass. As a result of investigating the ownership of the automobile, Goree was taken to the police station. The officer stated a phone call was placed to Columbia, Missouri. After evidence of that call he was asked on direct examination the nature of the charges for which he arrested Goree. The officer stated he advised Goree he was under arrest “for operating without the owner’s consent and a fugitive from Columbia, Missouri.” No objection was made to the question or answer.

On cross-examination by Goree’s counsel, the officer was asked, “You placed him under arrest for auto tampering didn’t you?” To this the officer answered, “I placed him under arrest for operating without the owner’s consent and for fugitive from Columbia.”

The only evidence of any crime was the stealing of the Olds Cutlass from Columbia, Missouri, and an admission by Goree that he took the automobile from the dealership where it had been left for repairs and drove it to St. Louis. Goree now contends the court committed prejudicial error when it overruled his objection to the officer’s answer during cross-examination concerning the nature of the charges for which Goree was arrested. The objection at trial was that the officer’s answer indicated there were other charges pending against him. On appeal the contention is made the answer shows the commission of another crime.

In State v. Taylor, 408 S.W.2d 8 (Mo. 1966) a police officer stated he arrested the defendant as a fugitive from justice. The arrest there was made in the City of St. Louis and the crime had been committed in St. Louis County. The court stated the jury could probably consider that the City policeman made the arrest at the request of the County as a part of its investigation of the offense in question. Here the crime for which Goree was being tried was committed in Columbia and he was arrested in St. Louis. The evidence showed the police officer made a call to Columbia prior to the time he actually placed Goree under arrest. As in Taylor, the jury here would most likely consider the phrase “fugitive from Columbia” as indicating only that Columbia was interested in having the person who stole the Olds arrested for that crime. There is no other evidence that even suggests the commission of another crime by Goree nor that he was wanted on any other charges.

Further, in Taylor the police officer testified twice that he arrested the defendant as a fugitive from St. Louis County. The first objection was not preserved and the court held that since the defendant could not complain of the first answer the admission of the second answer would be harmless even if it were assumed the answer was inadmissible. Likewise, in this case the officer testified twice that he arrested Goree as a fugitive from Columbia — the first without objection. Thus, under Taylor, even if it be assumed the answer was inadmissible, the second answer would be harmless.

Goree attempts to distinguish Taylor on the basis that the only reason for arrest given in Taylor was as a fugitive from St. Louis County whereas in this case two reasons were assigned — for operating without the owner’s consent and fugitive from Columbia. No distinction may be drawn on this basis. The only complaint made here concerns the phrase “fugitive from Columbia” which is the same phrase used in Taylor. Taylor held the jury would not construe the complained of phrase to be evidence of another crime. There is thus no basis on which to hold the same phrase objectionable on that ground in this case.

The judgment is affirmed.

All concur.


author: SHANGLER, Judge.

text:
    Robert J. HOGSHOOTER, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 30549.
    Missouri Court of Appeals, Western District.
    June 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 31, 1979.
    Application to Transfer Denied Sept. 11,1979.
    Julian J. Ossman, Asst. Circuit Atty., 19th Judicial Circuit, Jefferson City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, C. J., and SHAN-GLER, PRITCHARD, WASSERSTROM, SOMERVILLE, TURNAGE and CLARK, JJ.
   SHANGLER, Judge.

The defendant appeals from denial of a Rule 27.26 motion to vacate the judgment of conviction for failure to return from furlough [§ 557.351, RSMo 1978] and the sentence of two years confinement entered. It is the contention on appeal that the judgment of the court failed to make findings of fact and conclusions of law on all issues presented as required by Rule 27.26(i).

The formal motion raises the single issue: that the court was without jurisdiction to render judgment for want of venue. In lieu of other evidence, the defendant subscribed to a “stipulation of facts” and a “stipulation of law” to amplify the pleading. These facts recite that the defendant during lawful confinement in the penitentiary was furloughed to the City of Bolivar, in Polk County, Missouri, overstayed leave, was apprehended in Greene County, and was then returned to the custody of the penitentiary in Cole County, Missouri. The defendant was charged for the unlawful failure to return by information in Cole County and entered his plea of guilty to that venue.

Although couched in terms of jurisdiction, the pleading of the defendant was properly understood by the Rule 27.26 court to contend that the venue for the prosecution for unlawful failure to return was properly in Polk County, where leave expired and not Cole County, the place of lawful return. The defendant says, never-, theless, that the conclusion by the court that venue properly lay in Cole County was not found by sufficient facts in the judgment. The basis for the judgment, however, was the very facts formulated by stipulation of the defendant. The actual cavil is against the conclusion of law based upon the facts tendered as evidence that the situs of original confinement was a proper venue for prosecution. The validity of that exercise, however, need not be examined. The defendant submitted a plea of guilty to the Cole County Court without remonstrance and so waived the venue. The right of an accused to the place of trial provided by State Constitution or statute is a personal prerogative which may be waived. State v. Speedy, 543 S.W.2d 251, 255[4, 5] (Mo.App. 1976).

The judgment is affirmed.

All concur.