author: SMITH, Judge.

text:
    STATE ex rel. UNITED STATES FIDELITY & GUARANTY CO., Relator, v. Hon. Richard J. MEHAN, Judge, of the Circuit Court of St. Louis City, Missouri, Respondent.
    No. 39736.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 14, 1979.

      David M. Duree, Francis L. Kenney, Jr., Kenney, Leritz & Reinert, P.C., St. Louis, for relator.
    Donald S. Hilleary, Dennis J. Lenard, Clayton, for respondent.
   SMITH, Judge.

United States Fidelity and Guaranty Co. (hereinafter U.S.F.& G.) sought our writ of prohibition to prevent respondent judge from proceeding further in a suit entitled “Board of Governors of State Colleges and Universities of the State of Illinois [hereinafter Board] for the Use and Benefit of Mesker of Chicago, Inc., a corporation [hereinafter Mesker] v. United States Fidelity & Guaranty Co., a corporation.” We issued our preliminary writ and then after briefing and oral argument issued a divisional opinion quashing the preliminary writ. We then ordered a rehearing before an expanded panel and now make our preliminary writ permanent.

Alden Bennett Construction Co., Inc. entered into a contract in 1973 with the Board to construct the Commuter Center Addition of Northern Illinois University of Chicago, Illinois. Pursuant to Smith-Hurd Illinois Annotated Statutes, Chapter 29, § 15, Bennett, as prime contractor on the project, executed a performance and payment bond to the Board with U.S.F.& G. as surety thereon. Bennett then entered into a contract with Mesker (which despite its name is a Missouri corporation) for Mesker to supply hollow metal doors for the Addition.

In 1976, Mesker filed suit in the Circuit Court of the City of St. Louis, under the style heretofore set out, to recover on the bond for materials supplied to the Addition. U.S.F.& G. filed an answer and motion for judgment on the basis that the Circuit Court lacked jurisdiction over the subject matter by virtue of Smith-Hurd Illinois Annotated States, Chapter 29, § 16, which provides:

“. . . Such suit [on the bond] shall be brought only in the Circuit Court of this state in the judicial district in which the contract is to be performed.”

Mesker contends that this restriction may not be imposed upon a “transitory” cause of action created by the State of Illinois. It is generally true that a transitory action, whether created by statute or common law may be brought in any court of competent jurisdiction where jurisdiction over the defendant can be obtained. In Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, 34 S.Ct. 587, 58 L.Ed. 997 (1914) the Supreme Court held that a “state cannot create a transitory cause of action and at the same time destroy the right to sue on that transitory cause of action in any court having jurisdiction.” l.c. 360, 34 S.Ct. 589. Such a statement, however, largely begs the question, for the question to be resolved is whether a statutorily created cause of action is in fact transitory or local. In State of California v. St. Louis Union Trust Company, 260 S.W.2d 821 (Mo.App. 1953) [16, 17] this court recognized that a particular cause of action created by statute could be made either transitory or local depending upon the provisions of the statute which created it. If the statute provides for a specific remedy, limited and prescribed, and tied to a local court, the cause of action created is local. This is in keeping with Tennessee Coal, supra, and Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). The teaching of Tennessee Coal, supra, and Atchison, T.&S.F.R. Co. v. Sowers, 213 U.S. 55, 29 S.Ct. 397, 53 L.Ed. 695 (1909) upon which it relies, is that the legislative decision to limit suit upon such cause of action to a specific court must be based upon some reasonable and legitimate state concern. Suspicion and distrust of the courts of sister states and protection of local business interests are not such reasonable and legitimate concerns. Both cases involved actions for personal injuries characterized in Atchison as “universally held to be transitory.” (l.c. 67, 29 S.Ct. 397). In Tennessee no legitimate basis for the restriction of an otherwise transitory cause of “action to Alabama appears. In Atchison the legislature specifically stated its reason for the restriction to be the protection of local business and the prevention of “derogation of the dignity of the courts” of the territory.

Before turning to a discussion of the reasonableness of the Illinois statute, we note that several courts, confronted with construction bond suits for work done in foreign jurisdictions having similar restrictions on the place of suit to that contained in the Illinois law have held that they lack jurisdiction because of such restriction. See Long v. Ferriss, 196 Mise. 567, 94 N.Y.S.2d 493 (City Ct.1949); Omega New York Products Corp. v. Parisi Bros. Inc., 57 Misc.2d 1000, 293 N.Y.S.2d 878 (Sup.1968). Both state and federal courts in Illinois have held that suits brought other than in the court prescribed by the Illinois statute must be dismissed for lack of jurisdiction. E.I. DuPont DeNemours & Co. v. McKay Engineering and Construction Co., 297 Ill.App. 495, 18 N.E.2d 64 (1938); Village of Crainville ex rel. Pipe and Valve Supply Co. v. Argonaut Insurance Co., Civil No. 74-34 — B (E.D. Ill. 5-24-76) (Unpublished). Federal courts have uniformly dismissed suits brought in a location other than that provided for in the Miller Act, 40 U.S.C.A. Sec. 270a et seq., which contains a similar restriction on suits, at least where the parties have not voluntarily agreed to a different forum. Some of these cases are based upon an absence of jurisdiction, others upon an absence of ven-United States ex rel. Vermont Marble v. Roscoe-Ajax Construction, 246 F.Supp. 439 (N.D.Cal.1965); U.S.F.& G. v. Hendry Corp., 391 F.2d 13 (5 Cir. 1968); United States ex rel. Industrial Lumber Co., Inc. v. F.D. Rich Co., Inc., 473 F.2d 720 (9 Cir. 1973). In those cases where statutes requiring performance and payment bonds on construction projects in foreign jurisdictions do not contain provisions restricting suit to the project state, courts generally hold the action may be brought wherever personal jurisdiction is acquired. State of Kansas ex rel. American Steel Works v. Hartford Accident and Indemnity Co., 426 S.W.2d 720 (Mo.App.1968); 85 A.L.R. 847. This is not universally true. See Commonwealth of Pennsylvania ex rel. Beals v. Beals, 139 Mise. 785, 249 N.Y.S. 232 (Sup. 1931). We have been cited to, and have found, no case holding forum restriction provisions in public construction bond statutes to be invalid or unenforceable. ue. Co.

In considering the question of reasonableness we note certain features of performance and payment bonds generally, and in particular the requirements of the Illinois statute. Initially the bond is intended to provide security to the state for damages it may incur because of the failure in performance of the contractor and the possibility that insolvency, bankruptcy or some other cause may make recovery of such damages from the contractor impossible. For this reason the contracting parties are the State or its instrumentality on the one hand and the contractor and surety on the other. The second purpose of the bond is to protect materialmen and mechanics from losses due to non-payment by the contractor for their goods and services that have gone into the structure. Again the bond serves to prevent loss because of the difficulty or impossibility of recovering from the contractor. The latter bond protections in large part parallel those available under materialmen’s and mechanics’ liens in private construction, which liens are not available against public construction projects. The provisions of the statute require that subcontractors, materialmen and laborers may, after filing a notice of claim with the state, sue on the bond in the name of the state or political subdivision for the use and benefit of the claimant. The Illinois courts have held that no right of suit against the bond lies by a claimant, even as a third party beneficiary, except under the provisions of the statute. Board of Education v. Pacific National Fire Ins. Co., 153 N.E.2d 498 (Ill.App.1958) [2],

For the following reasons we do not find the restriction on suit provision unreasonable, and conclude that the cause of action created by the statute is local in nature:

1. The provisions closely parallel the relief available under mechanics’ and materi-almen’s liens which are traditionally throughout the country, and specifically in Illinois, local actions restricted to the situs of the project. Smith-Hurd Annotated Statutes, Chapter 82, § 9.

2. The Illinois legislature has provided that the action may be brought in the name of the State. It is peculiarly a legislative function to determine or restrict the forums in which the State may sue.

3. Bond suits frequently involve complex issues, multiple parties, cross-claims, counterclaims, interventions, and consolidations. On occasions the total amount of the claims or the damages awarded may exceed the total amount of the bond obligation. It is reasonable that a single forum be provided for the adjudication of such matters. It is also reasonable and logical that the forum provided be at the situs of the project where all parties by their voluntary actions have come to do business. Such location may provide the only forum in which all interested parties may be compelled to appear. See discussion of similar considerations as they pertain to the Miller Act in United States Fidelity and Guaranty Company v. Hendry Corporation, supra. We also note that the Illinois legislature has not only precluded suits on the bond in foreign courts, but has also precluded such suits in its own courts other than those where the project is located. This is not evidence of the parochial distrust of foreign jurisdictions found in Tennessee Coal, supra, and Atchison, supra.

4.The action here is not one for personal injury nor one having common law roots. It is exclusively a statutory cause of action to provide a specific protection to a specific group of readily identifiable parties. Its purpose is to provide security through the surety for the contractual failings of the general contractor and presumably would not prevent suit against the contractor alone on general common law contract theories wherever the contractor is amenable to service. (But, see, United States Fidelity and Guaranty Co. v. Hendry Corp., supra, as to the legal effect of such suit on the surety’s liability in Miller Act cases.) The action therefore is not one which is “universally held to be transitory.”

We find the statutory limitation on the situs of suit to be reasonable and that it precludes the trial court from proceeding on this statutory cause of action because it lacks jurisdiction of the subject matter.

Our preliminary writ of prohibition is made permanent.

WEIER, C. J., and KELLY, GUNN, STEWART, STEPHAN and SNYDER, JJ., concur.

ADDENDUM

“§ 15. Bond required — Provisions required in bond

All officials, boards, commissions or agents of this State, or of any political subdivision thereof in making contracts for public work of any kind to be performed for the State, or a political subdivision thereof shall require every contractor for such work to furnish, supply and deliver a bond to the State, or to the political subdivision thereof entering into such contract, as the case may be, with good and sufficient sureties. The amount of such bond shall be fixed by such officials, boards, commissions, commissioners or agents, and such bond, among other conditions, shall be conditioned for the completion of the contract, for the payment of material used in such work and for all labor performed in such work, whether by subcontractor or otherwise.

Each such bond is deemed to contain the following provisions whether such provisions are inserted in such bond or not:

‘The principal and sureties on this bond agree that all the undertakings, covenants, terms, conditions and agreements of the contract or contracts entered into between the principal and the State or any political subdivision thereof will be performed and fulfilled and to pay all persons, firms and corporations having contracts with the principal or with subcontractors, all just claims due them under the provisions of such contracts for labor performed or materials furnished in the performance of the contract on account of which this bond is given, when such claims are not satisfied out of the contract price of the contract on account of which this bond is given, after final settlement between the officer, board, commission or agent of the State or of any political subdivision thereof and the principal has been made.’

The bond required by this Section may be acquired from the company, agent or broker of the contractor’s choice, subject to the right of reasonable approval or disapproval by the State or political subdivision thereof concerned.

§ 16. Recovery on bond — Notice of claim— Limitation

Every person furnishing material or performing labor, either as an individual or as a sub-contractor for any contractor, with the State, or a political subdivision thereof where bond shall be executed as provided in this Act, shall have the right to sue on such bond in the name of the State, or the political subdivision thereof entering into such contract, as the case may be, for his use and benefit, and in such suit the plaintiff shall file a copy of such bond, certified by the party or parties in whose charge such bond shall be, which copy shall, unless execution thereof be denied under oath, be prima facie evidence of the execution and delivery of the original; provided, however, that this Act shall not be taken to in any way make the State, or the political subdivision thereof entering into such contract, as the case may be, liable to such sub-contractor, mate-rialman or laborer to any greater extent than it was liable under the law as it stood before the adoption of this Act. Provided, however, that any person having a claim for labor, and material as aforesaid shall have no such right of action unless he shall have filed a verified notice of said claim with the officer, board, bureau or department awarding the contract, within 180 days after the date of the last item of work or the furnishing of the last item of materials. The claim shall be verified and shall contain (1) the name and address of the claimant; the business address of the claimant within the State and if the claimant shall be a foreign corporation having no place of business within the State, the notice shall state the principal place of business of said corporation and in the case of a partnership, the notice shall state the names and residences of each of the partners; (2) the name of the contractor for the government; (3) the name of the person, firm or corporation by whom the claimant was employed or to whom he or it furnished materials; (4) the amount of the claim; (5) a brief description of the public improvement sufficient for identification.

No defect in the notice herein provided for shall deprive the claimant of his right of action under this article unless it shall affirmatively appear that such defect has prejudiced the rights of an interested party asserting the same.

Provided, further, that no action shall be brought until the expiration of one hundred and twenty (120) days after the date of the last item of work or the furnishing of the last item of materials, except in cases where the final settlement between the officer, board, bureau or department of municipal corporation and the contractor shall have been made prior to the expiration of the one hundred and twenty (120) day period, in which case action may be taken immediately following such final settlement; nor shall any action of any kind be brought later than six (6) months after the acceptance by the State or political subdivision thereof of the building project or work. Such suit shall be brought only in the circuit court of this State in the judicial district in which the contract is to be performed.”

      . Smith-Hurd Illinois Annotated Statutes, Chapter 29, §§ 15-16 have been attached as an addendum to this opinion.

      . Under Illinois law the terms of the statute become a part of the bond contract. Chicago Housing Authority ex rel. General Bronze Corp. v. United States Fidelity and Guaranty Co., 49 IH.App.2d 407, 199 N.E.2d 217 (1964). Mesker is bound by the terms of that contract, which include the limitations concerning the place of bringing suit. Omega New York Products, supra; Aiwinseai, Inc. v. Travelers Indemnity Co., 61 A.D.2d 803, 402 N.Y.S.2d 33 (1978), and see Bradford Electric Light Co. Inc. v. Clapper, 286 U.S. 145, 52 S.Ct. 571, 76 L.Ed. 1026 (1932). Mesker chose to participate in the Addition construction and if it desired the security afforded to it by the bond it must be prepared to accept the conditions under which the bond was issued.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    Wendell KING, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 39518.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 20, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 18, 1979.

      William Shaw, Public Defender and Joseph W. Downey, Asst. Public Defender, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Brenda Farr Engel, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Steven H. Goldman, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   STEWART, Judge.

Wendell King was sentenced to a term of 20 years upon his plea of guilty to the crime of robbery in the first degree with a dangerous and deadly weapon. He filed a motion under Rule 27.26 to set aside the judgment entered upon his plea. After an evi-dentiary hearing the court denied the motion. We affirm the order of the trial court.

As we read the points relied on by Mr. King, he contends that the court erred in failing to set aside his plea of guilty and vacate the judgment and sentence, because at the time he entered the plea the court had reasonable cause to believe that he had a mental disease or defect that rendered him unfit to proceed, and that the court, upon its own motion, should have ordered a psychiatric examination and conducted a hearing to determine the issue. He also contends that he was denied effective assistance of counsel in that counsel did not move the court for a psychiatric examination to determine his fitness to proceed.

Mr. King’s motion under Rule 27.26 also attacked his sentence on the ground that he was denied effective assistance of counsel because counsel misled him into believing that if he entered a plea of guilty he would be placed on probation and sent to Archway House, a drug rehabilitation center. He does not challenge the trial court’s denial of his motion on this ground.

Because of the nature of this appeal it is necessary to make an extensive statement of the facts developed at the evidentiary hearing. In 1966 Mr. King entered a plea of guilty to the crimes of robbery first degree and assault with intent to rob. The court suspended his sentence of concurrent terms of five years imprisonment. In February, 1972 he entered a plea of guilty to the crimes of robbery in the first degree and robbery in the first degree with a dangerous and deadly weapon. Again the court assessed terms of five years to run concurrently and suspended the sentence.

On February 23, 1972 the movant was released from confinement after his plea and entered St. Louis State Hospital with a chief complaint of drug addiction. On March 6, 1973 he was discharged to Archway -House with a final diagnosis of “Personality disorder, drug dependence . opium, opium alkaloids and their derivatives . anti social personality.”

On September 27, 1973 Mr. King entered a plea of guilty to the crime of robbery in the first degree with a dangerous and deadly weapon. This proceeding is the subject of the present appeal. The robbery occurred on Sunday, May 6, 1973 in a Quick Shop in St. Louis County. The store manager was robbed of $276.00 at gun point and three customers and three employees were locked in a meat cooler.

The transcript of the plea hearing and of the sentencing was introduced into evidence at the hearing on the 27.26 motion. The proceeding with respect to the plea covers eighteen pages of the transcript. The court’s inquiry developed that Mr. King, a native of St. Louis, was 26 years of age and went to the eleventh grade in school. He has an I.Q. of 80 which is on the border line of retardation. He was represented by a reputable and competent attorney. Mr. King’s mother worked in the lawyer’s household and the members of the King family were friends of the lawyer. This attorney had represented the movant with respect to the charges made against him in 1966 and in 1972. The attorney had counseled and worked closely with Mr. King in attempts to rehabilitate him. Another member of this attorney’s law firm was present when Mr. King entered his plea of guilty. Mr. King’s mother and his drug counselor were also present at the hearing.

The trial court meticulously explained the rights that movant would waive upon entering a plea of guilty and carefully questioned him with respect to his understanding of his rights and the consequences of a plea.

Mr. King advised the court that he had been confined for over three months and was not under the influence of drugs or alcohol. He was not taking medicine of any kind. He told the court that he had been to State Hospital and to Malcolm Bliss on a drug program. At State Hospital they had something “for me not being right” because of drugs. When asked if his “mind was working all right now” he replied “Not quite all right, sir.”

Crucial to our consideration is the testimony that follows:

Q. (By the court) “What’s the matter, Mr. King?
A. It just doesn’t seem right all the time. It just isn’t right all the time. It’s just mostly paranoid.
Q. All right. Let me ask you do you have any fears. Are you afraid of anything much? A. No.
Q. Do you have a feeling like you want to be aggressive and hurt somebody or break out or get away or . . ..A. No.
Q. Tell me how this affects you, this paranoia that you are talking about.
A. It just affects my mind, it seems like, every once in a while as far as a seizure or something like that.
Q. How does that affect you? Does it make you tremble or shake, or does a lot of lights flash or what happens?
A. It makes me tremble.
Q. How often does that happen?
A. Every once in a while.
Q. Have you had any of that trouble in the last two or three days?
A. Since I have been over there I have had it.
Q. Over at the county jail? A. Yes, sir.
Q. When was the last time you had one of those problems?
A. About last month.
Q. How do you feel this morning? Do you feel physically all right?
A. Yes, sir.
Q. Do you understand what is going on here? That’s the big important problem.
A. Yes, sir.”

Mr. King lucidly related the circumstances leading up to the crime and the commission of the robbery. He told the court that on the Friday before the robbery he was sick and contacted his probation officer who referred him to the drug counselor. He contacted the counselor who told him to come in on Monday and to stay out of trouble. On Sunday he committed the robbery. He said that he borrowed a gun from an old friend and drove to the Quick Shop where he committed the robbery. He got about $200.00 and was arrested in trying to escape. He had no accomplices. The money “was confiscated by the police.” He acknowledged that he had received no promises or inducements to plead.

After the court ascertained that Mr. King still wanted to enter a plea of guilty, it accepted the plea, found that Mr. King had entered the plea voluntarily with full knowledge of all of his constitutional rights; that he had waived those rights; that he fully appreciated and understood what was being done and that there was no coercion, threats or promises and no intimidation by anyone of what the court would do. The court postponed sentencing until a presentence report could be obtained.

Movant was sentenced on November 30, 1973. He appeared with his attorney and the other member of the firm who had represented movant at the plea hearing. His mother was also present. The court had before it a presentence report from the probation officer as well as a letter from Mr. Boyd Brown, a drug counselor from Malcolm Bliss Mental Health Center. The letter recounted the fact that movant had been hospitalized as a patient under the federal drug rehabilitation effort, and released to the post hospitalization phase. It was Mr. Brown’s clinical impression that Mr. King had the strength and potential to warrant further work with him.

Mr. King explained to the court that he had committed the robbery because he was sick from drug intoxication and that he also needed the money to pay people he owed for drugs or “they would do something” to him.

When the evidentiary hearing on the present motion was first set on September 3, 1974, the cause was continued so that a psychiatric examination could be had. Mr. King was examined by Dr. Jacks who concluded in a report dated October 4, 1974, that movant was not then capable of proceeding. The hearing was continued. A report of Dr. Jacks dated November 4, 1977 concluded that movant was competent to proceed with the hearing at that time. The evidentiary hearing was held on December 12, 1977. Prior to the hearing on that date a psychiatrist retained by Mr. King’s family examined movant and concluded that he was competent to proceed. In that examination he also concluded that Mr. King suffers from “chronic schizophrenia probably paranoid in type and currently in remission.”

This doctor testified on behalf of movant that he had examined Mr. King on August 4, 1975, August 16, 1975 and October of 1975 at Fulton State Hospital. When he first saw Mr. King he was suffering from schizophrenia. Because of his past history and the emergence of the psychosis while in prison the doctor was of the opinion that movant was obviously unable to cope with the stress of penitentiary life.

This doctor questioned the validity of the diagnosis made at State Hospital in St. Louis because in his opinion it did not fully consider the nurses notes which indicated that Mr. King would make inappropriate responses to certain situations such as “laughs and smiles at most unfunny things.”

The doctor was unable to say that mov-ant was not competent to proceed at the plea hearing. He testified that it was possible that movant knew what he was doing at the time he entered the plea of guilty.

The attorney who represented movant when he entered his plea of guilty was of the opinion that movant understood what was going on at that hearing and that he understood the meaning of the plea. He had seen Mr. King on other occasions. He saw movant on at least one occasion in the home of Mr. King’s principal counsel. There was nothing that counsel saw in his discussion, his relations with Mr. King or his knowledge of the case that would cause him to request an examination to determine his mental fitness to proceed. The lawyer was pessimistic about movant’s chances of obtaining any kind of probation and did not make any promise of probation to Mr. King.

Movant testified that he did not remember pleading guilty. He did remember that he had a case involving robbery. He recalled talking to the lawyer who was present at the plea hearing and that he went into court after talking to the lawyer. The lawyer promised him that he would go to Archway House. He “felt” that after going before the judge that he would go to Archway House. He had also talked to the attorney who primarily represented him. This attorney “just said I [movant] might have a chance [of] going to Archway House.”

On cross examination he testified that after talking to the lawyer who was at the plea hearing he went into court and talked to the judge. He testified that he could not remember what he talked about before the judge on that day.

The court made extensive findings of fact and conclusions of law. It found that mov-ant had a long history of heroin addiction and that his troubles including his hospitalization were due to the addiction. It found that on the date of the plea movant was represented by counsel; that his mother and his drug counselor were present; that movant had been confined for a number of months and was “presumably drug free”; that none of the persons present then or at any other time suggested that movant was not mentally fit to proceed or that a psychiatric examination should be made. The court observed that it carefully questioned movant and that it saw and heard nothing then or previously that would lead the court to believe that a psychiatric examination would have disclosed that movant was not mentally fit to proceed. The court made essentially the same finding with respect to sentencing, noting that movant’s mother and both of his attorneys were present and that no one, including movant, gave the slightest indication that Mr. King needed or wanted a psychiatric examination or that he was not mentally fit to proceed.

The court acknowledged that movant suffers from schizophrenia and probably had the disorder at the time of the proceeding in question but found that the condition was in remission and that it did not interfere with movant’s ability to understand the nature of the proceedings, or to consult and cooperate with counsel.

The court concluded that movant had not sustained his burden in the proceeding; that counsel did not tell him that he would be placed on probation if he pleaded guilty; that it was also made clear to him by the court and he understood it; further that movant was mentally fit to proceed; no one suggested the contrary and that it saw and heard nothing to require a sua sponte order for psychiatric examination.

The conviction of an accused, by way of trial or plea of guilty, while legally incompetent is a violation of due process. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). In Missouri a person is not competent to proceed if as a result of mental disease or defect, he lacks capacity to understand the proceedings against him or to assist in his own defense. § 552.020. Bryant v. State, 563 S.W.2d 37, 41 (Mo. 1978). If a judge at any stage of the proceedings has reasonable cause to believe that a defendant has a mental defect or disease excluding fitness to proceed it is incumbent upon the court to order a psychiatric examination and if necessary thereafter to hold a hearing to determine the issue. § 552.020(2). Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).

In a motion under Rule 27.26 the burden is upon movant to prove by a preponderance of the evidence that the court should have instituted a competency proceeding under the principles outlined above. Pickens v. State, 549 S.W.2d 910 (Mo.App. 1977). On review of the trial court’s ruling upon the issues raised in the motion we are “limited to a determination of whether the findings, conclusions and judgment of the trial court was clearly erroneous.” Rule 27.26(j).

As said in McDonald v. State, 572 S.W.2d 633, 635 (Mo.App.1978),

“. . . suspicion or actual presence of some degree of mental illness or need for psychiatric treatment does not equate with incompetency to stand trial. . Neither does the fact of commitment in a mental hospital, . . . considerable emotional disturbance, . . . nor alcoholism and drug addiction, make a defendant incompetent as a matter of law.”

In the case at bar there was nothing about movant’s behavior at the hearing on the plea or at the sentencing some weeks later that would indicate to the court or to counsel that movant was incompetent to proceed. We do not have bizarre behavior or attempted suicide that was present in Pate, supra, and Drope, supra. Although the court expressed an interest in seeing the medical report of movant’s confinement in the State Hospital, it was not furnished. The diagnosis contained in that report merely confirmed movant’s explanation of his condition as drug addiction. The court questioned movant carefully with respect to his symptoms and of his understanding of the proceeding. It listened to the movant’s lucid account of the robbery. After considering all of the circumstances the court concluded that movant fully appreciated and understood what was being done and accepted movant’s plea. At the hearing on the 27.26 motion movant’s memory of what transpired immediately before the plea was entered was crystalline. He testified that his attorney promised that he would be put under the supervision of Archway House. The opacity developed only when inquiry was made concerning his recollection of the hearing on the plea which occurred immediately after he spoke with the lawyers. It is then that he professed to remember nothing that transpired in the hearing. This testimony would indicate to the court that mov-ant was concealing the true extent of his recollection and understanding of the proceeding. The court was also aware that movant had pleaded guilty on two prior occasions.

The court had the opportunity of observing movant at the plea hearing and six weeks later at the sentencing. The court could reasonably find that there was nothing in movant’s demeanor to raise a reasonable doubt in the court’s mind as to Mr. King’s competency. Present at the plea hearing were movant’s attorney, the drug counselor who was familiar with his background and problems, and his mother. None of them indicated that movant was not competent to proceed.

The court’s conclusion that movant had not carried his burden of proving that a reasonable doubt existed as to movant’s competency to proceed is not clearly erroneous.

Movant also charges that counsel was ineffective in not requesting a mental examination and hearing with respect to his competency to proceed. Movant’s counsel was closely acquainted with movant and his mother and saw no necessity of requesting a mental examination. Co-counsel, who appeared with movant, testified that he saw nothing in his discussion or relations with Mr. King or his knowledge of the case that would cause him to request an examination to determine his mental fitness to proceed. In this respect movant has again failed to carry the burden required of him. See McDonald v. State, supra.

The judgment of the trial court is affirmed.

STEPHAN, P. J., and KELLY, J., concur.


author: REINHARD, Judge.

text:
    Bonnide JOHNSON, Appellant, v. STATE of Missouri, Respondent.
    No. 40317.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 20, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 18, 1979.

      Robert C. Babione, Public Defender, Christelle Adelman-Adler, Asst. Public Defender, St. Louis, for appellant.
    Paul Robert Otto, Kristie Green, Asst. Attys. Gen., John D. Ashcroft, Atty. Gen., Jefferson City, Richard Poehling, Dwight A. Warren, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Judge.

Movant appeals from the denial of his Rule 27.26 motion without an evidentiary hearing. He was convicted for two counts of robbery first degree by means of a dangerous and deadly weapon. The jury assessed punishment at fifteen years imprisonment on each count, and the court ordered the sentences to run concurrently. The case was affirmed by the Supreme Court. State v. Johnson, 499 S.W.2d 371 (Mo.1973). A resume of the facts can be found in that case.

In movant’s Rule 27.26 motion he alleges ineffective assistance of counsel in “that counsel failed to [interview and call] two important witnesses in . . .” his behalf. One was a co-defendant who movant contends would have given testimony to the effect that movant had not accompanied him on the robbery. The other witness was one of the arresting officers “who had testimony material to the question of whether it was indeed movant who had entered the victimized firm at the time of the arrival of the arresting officers.”

To be entitled to an evidentiary hearing, the motion is required to set forth facts, as opposed to conclusions, sufficient to support the claim for relief. Charles v. State, 570 S.W.2d 700, 702 (Mo.App.1978). Those facts alleged by a movant in support of his motion must raise matters not refuted by the files and records in the case. In this context, we may notice the transcript of the original appeal, even though that appeal was to the Supreme Court. Chambers v. State, 554 S.W.2d 112 (Mo.App.1977). We believe that a fair reading of the transcript shows that movant never expected his counsel to call either of the witnesses he alleges should have been called.

After the state rested, the court asked the defense attorneys if they were going to put on any evidence. A recess was granted so that the defense attorneys might talk to movant. One of his attorneys stated to the court that the movant had told them he did not want to testify, and for that reason, the defense would rest upon the state’s resting its case. The movant then told the court that he did not want to testify, stating, “I don’t have the intention of testifying.” There was then discussion relative to mov-ant’s statement that he wanted to say something at the sentencing. A review of the entire colloquy between movant and the trial court reveals that the movant was aware that no more evidence was to be offered. He may not now complain that his attorneys should have done more.

Affirmed.

GUNN, and CRIST, JJ., concur.


author: CRIST, Judge.

text:
    Joseph STEINLAGE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 40335.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 27, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 18, 1979.
    Brassil, Rohlfing & McDonald, Michael J. McDonald, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Kristie Green, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., David 0. Fischer, St. Louis, for respondent.
   CRIST, Judge.

Appeal from judgment denying movant’s motion to amend Rule 27.26 motion filed after entry of adverse judgment on the Rule 27.26 motion.

Movant makes no objection to the Rule 27.26 adverse judgment rendered on December 27, 1977. On January 13, 1978, he filed a motion to amend his original Rule 27.26 motion. The motion to amend proposed an additional ground: that movant’s lawyer told him to lie to the court when questioned at the guilty plea hearing and that if he did not “movant would receive a lot of time.” The trial court denied his motion to amend.

His proposed amendment was tantamount to a second Rule 27.26 motion. The grounds alleged in the amendment were new, but were known and could have been raised in the earlier motion. Rule 27.26(d) prohibits this kind of motion. Riley v. State, 545 S.W.2d 711, 713 (Mo.App. 1976). The motion to amend the original Rule 27.26 motion was not timely. It was filed after the trial court’s adverse ruling.

In any event, the fact that his attorney may have told him to lie, without more, did not taint the voluntariness of movant’s plea or require a hearing. See Blade v. State, 558 S.W.2d 352, 355 (Mo.App.1977).

The judgment is affirmed.

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


author: REINHARD, Presiding Judge.

text:
    Rosetta ELLIS, Appellant, v. The JEWISH HOSPITAL OF ST. LOUIS and Mark R. Russell, Respondent.
    No. 40705.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 3, 1979.
    Harold L. Whitfield, St. Louis, for appellant.
    Norman Bierman, St. Louis, for respondent.
   REINHARD, Presiding Judge.

This is an action for libel as defined in § 559.410 RSMo (1969). Plaintiff brought this action against her former employer, Jewish Hospital of St. Louis, and its Assistant Executive Director, Mark R. Russell. The trial court granted defendants’ motions to dismiss and plaintiff appeals.

From the record we learn that defendant Jewish Hospital of St. Louis hired plaintiff as a staff pharmacist on or about November 29, 1965. Plaintiff was promoted to Assistant Chief Pharmacist in 1967 and became Director of Pharmacy in 1973. Plaintiff resigned from her position as Director of Pharmacy by a letter dated June 2, 1976, said resignation allegedly effective July 16, 1976.

In August of 1976, plaintiff filed a Petition for Specific Performance in which she sought an order requiring defendants to compensate plaintiff at her regular wage for the period June 8, 1976 to July 16, 1976, and requiring defendants to expunge certain statements from her personnel file. Upon defendants’ motions, the court dismissed plaintiff’s petition without prejudice, allowing plaintiff ten days to file another cause of action in law.

On November 9, 1976, plaintiff filed, a Petition for Damages alleging that defendant Mark Russell, as agent of defendant Jewish Hospital, had libeled defendant by making certain evaluations and causing them to be incorporated in her personnel file. The trial court granted defendants’ separate motions to dismiss plaintiff’s petition for damages, but allowed plaintiff ten days to file an amended petition alleging special damages.

Plaintiff then filed her First Amended Petition for Damages, in which petition she alleged, inter alia, that defendant Mark Russell, while acting within the scope of his authority, had “intentionally, wantonly and maliciously libeled Plaintiff in describing to others an alleged need for Plaintiff to improve her interpersonal relationship skills and personnel management, and has caused such untrue statements to become incorporated in the official personnel file of the plaintiff.” Plaintiff then alleged that, “[a]s a direct and proximate cause of the intentional, wanton, and malicious libel of plaintiff,” she had suffered a loss of wages in the amount of $10,800 from the period June 8, 1976 to September 16, 1977, and has been unable to find employment since September 16, 1977. Again the trial court sustained defendants’ separate motions to dismiss. Plaintiff appeals from the dismissal.

On appeal, plaintiff asserts that the trial court erred in granting defendants’ motions to dismiss, because there remained “a genuine issue as to the truth of the statements made by Mark R. Russell,” and because the trial court failed to construe the petition liberally and favorably so as to allow the recognition of this issue.

The record reveals that the deposition of plaintiff was presented to the trial court and were filed as exhibits in this court. Because matters outside the pleadings were presented and considered by the trial court, defendants’ motions as granted will be treated as motions for summary judgment. Rule 55.27(b); Empiregas, Inc., of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657, 660, Fn. 4 (Mo.1974); Talkington v. J. S. Alberici Const. Co., 528 S.W.2d 5, 7, Fn. 3 (Mo.App.1975); Kelley v. Schnebelen, 545 S.W.2d 332, 334 (Mo.App.1976).

A reading of the record, including plaintiff’s deposition, shows that defendant Russell was plaintiff’s supervisor and that defendant Russell’s duties included an annual evaluation of plaintiff’s job performance and the placement of this evaluation in plaintiff’s personnel file, a part of the defendant hospital’s records. In 1975 and 1976, Russell evaluated in written form plaintiff’s job performance. Plaintiff alleges that it was libelous for defendant Russell to describe her in these annual assessments as possessing “poor interpersonal relationship skills,” as having “a flagrant disregard for others,” and as lacking “interpersonal relationship skills.”

Libel, as defined in § 559.410 and the relevant case law, requires a publication. McDonald v. R. L. Polk & Co., 346 Mo. 615, 142 S.W.2d 635, 638 (1940). Plaintiff’s deposition reveals that the alleged publication in this case comprised the inclusion of these evaluations in plaintiff’s personnel file and the reading of these evaluations by those who were plaintiff’s supervisors and administrative superiors. Furthermore, the evaluations were only those which defendant Russell was required to make. This communication of employee personnel files, containing required evaluation material, to supervisory personnel within the hospital itself does not constitute actionable publication. See Hellesen v. Knaus Truck Lines, Inc., 370 S.W.2d 341, 344 (Mo.1963), where the court held that “communications between officers of the same corporation in the due and regular course of the corporate business, or between different offices of the same corporation, are not publications to third persons.”

No issue remains as to alleged publication. The various materials offered to the circuit court establish a lack of actionable publication, without which an action for libel cannot lie. Therefore, the trial court’s granting of defendants’ separate motions to dismiss, considered as motions for summary judgment, was appropriate.

Judgment affirmed.

GUNN and CRIST, JJ., concur.


author: SNYDER, Presiding Judge.

text:
    David M. DORRIN, a minor by Harry Dorrin, his next friend, Plaintiff-Respondent, v. UNION ELECTRIC COMPANY, a corporation, Defendant-Appellant.
    No. 39454.
    Missouri Court of Appeals, Eastern District, Division One.
    April 3, 1979.

      James J. Virtel, Jerry B. Wamser, Schlafly, Griesedieck, Ferrell & Toft, St. Louis, for defendant-appellant.
    Charles E. Gray, Thomas C. DeVoto, Gray & Ritter, St. Louis, for plaintiff-respondent.
   SNYDER, Presiding Judge.

Plaintiff David Dorrin, an eighteen year old college freshman, while in a tall tree located between Queeny Park and Mason Road in St. Louis County, came into contact with an uninsulated 7200 volt electric line maintained by defendant Union Electric. Dorrin suffered severe electrical burns on his back, right shoulder, left leg and left thumb, but survived the shock and ensuing fall.

Plaintiff tried the case on the theory that Union Electric was negligent in maintaining an uninsulated wire within the probable reach of persons who might climb the tree. Union Electric relied on the affirmative defense of contributory negligence. Ten members of the jury returned a verdict for Union Electric. Upon plaintiff’s motion, a new trial was granted on the ground that prejudicial error was committed in giving defendant’s verdict-directing Instruction No. 3, which submitted the defense of contributory negligence. Union Electric appeals. In this opinion the parties will be referred to by their trial court designations or by name.

Reversed and remanded, with instructions to reinstate the verdict for the defendant, Union Electric, and enter final judgment thereon.

Dorrin and his two companions, Bill Rea and Steven Clerk, left Rea’s house late in the afternoon of September 26, 1974, to go to Clerk’s house to play pool. On their way over Mason Road they passed Queeny Park. Because Queeny Park had just been opened to the public that day, they decided to stop and look around the park. After parking their automobile, the three got out of the car, crossed Mason Road from east to west, walked under Union Electric’s wires and entered Queeny Park.

After walking in the park for fifteen or twenty minutes, and enjoying the clear, warm fall afternoon, they decided to return to their car. As they approached Mason Road from the west, they discovered a tall tree with a set of wooden steps nailed to its trunk. The tree was about sixty feet high and had several large branches extending upward from the trunk and toward Mason Road. The boys decided to climb the tree to get a better view of the park and the surrounding area. Dorrin was the first one into the tree and climbed higher than his two companions. Although it was late in September, the tree was still in leaf. From this point on, the versions of the accident given by Dorrin and the witnesses differ.

Dorrin testified he climbed until he was standing on the sixth of the eight wooden steps. Two Union Electric 7200 volt primary wires and one common neutral or ground wire passed the tree on the east side. They were supported by poles at a height of approximately thirty-five feet for the primary wires and twenty-nine feet for the neutral. Dorrin’s head was one or two feet above the primary wire closest to the tree. According to Dorrin, he was straddling the main limb, pressing his chest against it, while holding onto the upper wooden steps. The limb was twelve inches in diameter and did not bend or sway under his weight. When Dorrin was in this position he faced east, toward the electric wires, and looked out over Mason Road. The trunk of the tree was between him and the wires. To view the park he would have had to turn around or look back over his shoulder. Twenty-two inches separated the tree and the closest uninsulated primary wire.

Dorrin and Bill Rea believed they were in the tree for fifteen to thirty minutes and never climbed above the primary wire. Dorrin, Rea and Clerk denied seeing the Union Electric wires and poles at any time during the afternoon.

Dorrin’s version of the accident was that after about fifteen minutes of standing on the wooden step, he turned his body to the right, keeping the limb in front of him. Suddenly, he was “grabbed by some force”; he saw a flash of light and then fell to the ground. Dorrin believed he came into contact with the wire and then fell; he specifically denied falling into the wire. Neither Clerk nor Rea could say how Dorrin came into contact with the wire.

Plaintiff’s witness McDowell, who lived on Mason Road, close to the scene of the accident, testified the boys were in the tree when he came home from work at about 4:10 p. m. If the accident happened at or after 5:45 p. m. (as the evidence indicated), the boys would have been in the tree an hour and one-half, or more. McDowell also believed their position in the tree was well above the primary wire.

Defendant’s witness Hagar arrived at his home on Mason Road about 4:30 p. m. and saw three young men in the tree at a point six to eight feet above the wires. According to Hagar, the three stayed in this position for some time, were loud and rowdy, and shouted obscenities at a young girl passing by the tree. Hagar placed the time of the accident between 6:00 and 6:15 p. m. He heard a limb crack and then a loud explosion; he looked out his dining room window and saw Dorrin hit the ground.

Based upon the nature of the burns suffered, Dorrin’s medical witness believed the electric current entered the left side of the small of Dorrin’s back and exited through his left thumb and right shoulder. Plaintiff’s expert witness, Joseph Movshin, an engineer, held the opinion that Dorrin was climbing or circling around the tree limb and touched his back to the uninsulated wire. He did not believe the electric current in the wire could jump or arc 34 inches under the conditions then present.

Union Electric’s verdict-directing Instruction No. 3 read as follows:

Your verdict must be for the defendant whether or not defendant was negligent if you believe;
First, Plaintiff knew or by the use of ordinary care could have known of the presence of an electric wire near the tree and knew or by the use of ordinary care could have known there was a reasonable likelihood of injury to himself if his body contacted said wire: and
Second, while plaintiff was in the tree he either: failed to keep a careful lookout for the electric wire, or caused his body to contact the electric wire; and
Third, Plaintiff’s conduct in any one or more of the respects submitted in paragraph Second, was negligent; and
Fourth, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.
The term “negligence” as used in this instruction with respect to plaintiff David Dorrin means the failure to use that degree of care which an ordinarily prudent boy of the same age, capacity and experience would use under the same or similar circumstances.
MAI 32.01 modified
MAI 11.04.

In his motion for new trial, plaintiff contended the instruction contained eleven “prejudicial errors.” Eight of these were sustained by the trial court. In substance, the eight alleged defects or errors were:

(1) The instruction overemphasized the duty of lookout by submitting the duty in both Paragraphs First and Second;
(2) Paragraph First violated Rule 70.-02(a) because it submitted detailed evi-dentiary facts and was not simple, brief and impartial;
(3) Paragraph First submitted “could have known" instead of “should have known” in connection with plaintiff’s duty;
(4) The instruction, by submitting plaintiff “caused his body to contact the electric wire,” allowed the jury to consider conduct of the plaintiff which was not the proximate cause of his injury;
(5) The language “caused his body to contact the wire” amounted to a roving commission and allowed the jury to find in favor of defendant if “any” of plaintiff’s damages were the result of any conduct of plaintiff which caused his body to touch the wire:
(6) The instruction did not require the jury to find the electrical burns were proximately caused by plaintiff’s negligence in causing his body to contact the wire;
(7) The instruction gave the jury a roving commission to speculate on what con-' duct of plaintiff constituted negligence; and
(8) Under the evidence plaintiff was not under a duty of lookout.

Generally, in reviewing the action of the trial court in ruling on a motion for new trial, an appellate court is more liberal in upholding the action when the motion is granted than when it is denied, because reversing the trial court’s action in denying a new trial would require a reversal of a judgment. Pollard v. General Elevator Engineering Company, 416 S.W.2d 90, 96 (Mo. 1967); Royal Indemnity Company v. Schneider, 485 S.W.2d 452 (Mo.App.1972).

However, this rule of liberality must be interpreted and applied in the light of cases holding that “ ‘[t]he trial court’s power “to grant a new trial is discretionary only as to questions of fact and matters affecting determination of issues of fact. There is no discretion in the law of a case, nor can there be an exercise of sound discretion as to the law of a case.” ’ ” Wims v. Bi-State Development Agency, 484 S.W.2d 323, 326 (Mo. banc 1972); Tate v. Giunta, 413 S.W.2d 200 (Mo.1967).

In Highfill v. Brown, 340 S.W.2d 656 (Mo. banc 1960), the trial court’s action in granting plaintiff’s motion for new trial was reversed and the case remanded with instructions to grant judgment for defendants. Plaintiff had contended in his motion that defendants’ verdict-directing instruction submitting the issue of contributory negligence was prejudicially erroneous. The supreme court held that “[wjhether the instruction was erroneous and, therefore, prejudicial was a question of law to be determined upon the record presented. No fact question was involved.” Highfill, id., 664. Therefore, the granting of a new trial was not within the discretion of the trial court. Accord, Wims, supra.

Likewise, in this case, the trial court’s action on the motion for new trial involved the application of legal principles rather than the exercise of judicial discretion. The issue before this court is not the propriety of an exercise of discretion but rather whether the granting of the motion for new trial because of errors in the instruction rested on a valid or erroneous view of the law. Compare State ex rel. Mather v. Carnes, 551 S.W.2d 272 (Mo.App.1977).

In the interest of clarity, plaintiff’s points in his motion for new trial will be treated out of order.

I. Was plaintiff under a duty of lookout? (Ground No. 8).

Before a plaintiff can recover on a charge of primary negligence, the law requires that he exercise due care to discover and avoid the danger created by defendant’s negligence. Hamilton v. Laclede Electric Cooperative, 294 S.W.2d 11 (Mo. 1956); Wells v. Wachtelborn, 410 S.W.2d 558 (Mo.App.1966).

‘The duty to exercise ordinary care to avoid injury includes the duty to exercise ordinary care to observe and appreciate danger or threatened danger. A person is required to make reasonable use of his faculties of sight, hearing, and intelligence to discover dangers and conditions of danger to which he is or might become exposed, and one injured as a result of his failure to use his faculties to observe and discover a danger which would have been observed and discovered by an ordinarily prudent person is guilty of contributory negligence.’

Chisenall v. Thompson, 363 Mo. 538, 543, 252 S.W.2d 335, 337-338 (1952), quoting 65 C.J.S. Negligence § 120.

The minority of the plaintiff does not preclude assertion of the defense of contributory negligence. Rather, the standard for judging the conduct alleged to be contributory negligence is altered from the objective standard of the ordinarily prudent person to the subjective standard of the level of care ordinarily exercised by one of the age, intelligence, discretion, knowledge and experience of the particular plaintiff under the same or similar circumstances. Carter v. Boys’ Club of Greater Kansas City, 552 S.W.2d 327, 332 (Mo.App.1977). Thus, in applying the duty of lookout to a minor plaintiff, the circumstances surrounding the accident, as well as the minor’s age, intelligence, knowledge and experience, must be considered and analyzed.

The accident occurred during the daylight hours of a warm, calm fall day. Plaintiff’s and defendant’s neighborhood witnesses indicated plaintiff and his companions may have been in the tree for nearly two hours. Although Dorrin stated he never climbed above the primary wire and remained in the same position, both neighborhood witnesses placed him above the wires and witness Hagar believed the three changed their positions while they were in the tree. Even accepting plaintiff’s statement of his position in the tree, his head was one to two feet above and facing the wire and less than three feet west of it. Plaintiff testified that he looked down toward the wire at least for a time to observe the young girl on the road below. Further, the evidence and opinions as to how the accident occurred all are consistent with, or premised on, movement by plaintiff toward the wires. While the tree was in leaf, Dor-rin conceded, and the photos admitted into evidence at trial confirm, there were fewer limbs and less foliage on the side of the tree facing Mason Road and the electric wires. Finally, the obvious must be remembered: Plaintiff was in a tree, at a height of thirty-five feet, along the side of a major road — a place where wires are frequently strung.

The accident occurred on September 26, 1974, four days before plaintiff’s nineteenth birthday. He was a freshman at Meramec Junior College. He had climbed trees before and had participated in rope climbing and rappelling. He knew electricity was dangerous and that it was transmitted on wires strung on poles. He had walked under the wires when he and his two companions entered Queeny Park.

As a part of his case, plaintiff introduced the deposition of Harry Slyman, a seventeen year old boy who lived in the neighboring Mason Valley subdivision. Slyman had climbed the tree a number of times and had seen the electric wires on those occasions. Clerk and Rea, Dorrin’s two companions, testified they could see the wire at the moment of his injury.

After considering the circumstances of the accident and the characteristics and abilities of the minor plaintiff, it must be concluded that substantial evidence was produced to support submission of the issue of whether plaintiff, in the exercise of proper care for his safety, could and should have seen the wires and the danger they presented in time to have prevented his ensuing injury. Young v. Grotsky, 459 S.W.2d 306, 309 (Mo.1970). No error was committed in submitting the issue to the jury. Rickman v. Sauerwein, 470 S.W.2d 487, 489 (Mo. 1971).

II. Does Paragraph First violate Rule 70.02? (Ground No. 2).

Rule 70.02(a) provides in relevant part: “All instructions shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.”

In his motion for new trial, plaintiff did not explain how the instruction violated the rule; he merely claimed the paragraph submitted evidentiary facts and was not simple, brief and free from argument. The question of whether this is a sufficiently specific objection under Rule 78.07 will be passed over, and the claim addressed on its merits.

The language of Paragraph First is simple and easily understood. The words chosen are neither argumentative nor unduly favorable to defendant. There is no embellishment. The paragraph, and the instruction as a whole, is brief in comparison to the instructions found in the older pre-MAI cases, where the instruction frequently covered an entire page of the opinion, contained all of the evidentiary facts supporting the submission, and served as the parties’ “written argument.” Shackman v. Lincoln Property Co., 556 S.W.2d 50, 53 (Mo.App.1977).

Equally important, the language of the paragraph was necessary to submit to the jury the ultimate issues of knowledge and appreciation of the danger and risk of injury-

“Knowledge and appreciation of the danger and risk of injury, actual or imputed, is essential in order that a child may be guilty of contributory negligence. Mere knowledge that injury might result, without appreciation of the risk of injury to which his conduct exposed him, is not sufficient.” Turner v. City of Moberly, 224 Mo.App. 683, 685, 26 S.W.2d 997, 998 (Mo.App.1930). See, also Koirtyohan v. Washington Plumbing & Heating Co., 471 S.W.2d 217, 221 (Mo.1971); Bledsoe v. Northside Supply & Development Co., 429 S.W.2d 727 (Mo.1968); Van Dyke v. Major Tractor & Equipment Co., 557 S.W.2d 11, 14 (Mo.App.1977).

The supreme court reversed a judgment for defendant in Davidson v. International Shoe Company, 427 S.W.2d 421 (Mo.1968) on the ground, among others, that the contributory negligence instruction submitted by defendant failed to require a finding of knowledge and appreciation of the danger on plaintiff’s part as a necessary element of contributory negligence. See also, Bledsoe, supra; and Van Dyke, supra. The cited cases show Paragraph First, in proper language, submitted the ultimate facts necessary for a finding of contributory negligence. This attack on Paragraph First is rejected.

III. Does the instruction contain a double submission of the duty of lookout, thus overemphasizing plaintiff’s duty to observe and know of the wire’s presence? (Ground No. 1).

Plaintiff contended in his motion that the instruction overemphasized the duty of lookout by submitting that duty in both Paragraphs First and Second.

Paragraph First required the jury to find the ultimate issues of knowledge and appreciation of the danger and risk of injury, or, in other words, that plaintiff was under a duty to keep a lookout and had an obligation to make use of his faculties to observe and avoid danger. As Davidson, supra, Bledsoe, supra, and Van Dyke, supra, note, it would have been reversible error to fail to submit the ultimate issues of knowledge and appreciation of risk. Paragraph Second then posed the issue of whether plaintiff exercised due care or breached his duty and submitted conduct on his part which involved an undue risk of harm. Paragraph Third required the jury to find plaintiff’s breach of duty was negligent and Paragraph Fourth presented the issue of whether plaintiff’s negligence was the proximate cause of his injury.

The instruction thus submitted, in order, the issues of duty, negligent breach of duty and proximate cause. The issue of lookout was not unduly emphasized because the instruction properly required separate findings or conclusions that plaintiff was under that duty (Paragraph First) and then, by his conduct, breached that duty (Paragraph Second). The presentation of these separate issues was essential for a finding of contributory negligence. There was no double submission and no overemphasis of the duty of lookout.

IV. Did Paragraph First err in using “plaintiff knew or by the use of ordinary care could have known,” instead of “plaintiff knew or by the use of ordinary care should have known,” in submitting the issue of plaintiff’s constructive knowledge and appreciation of the danger presented by the uninsulated wire? (Ground No. 3).

Plaintiff contended in his motion for new trial that Paragraph First misstated the applicable legal standard for determining the ultimate issue of his constructive knowledge by twice using the phrase “could have known.” Paragraph First read:

First, Plaintiff knew or by the use of ordinary care could have known of the presence of an electric wire near the tree and knew or by the use of ordinary care could have known there was a reasonable likelihood of injury to himself if his body contacted said wire .

In everyday use the words “could” and “should” do have different meanings. “Should” implies the “idea of obligation; it is the past tense of ‘shall’ which implies ‘owes, ought to, must’ (Webster’s 3rd Internal Dict.).” Burrell v. Mayfair-Lennox Hotels, Inc., 442 S.W.2d 47, 54 (Mo.1969). “Could,” on the other hand, “denotes mere ‘capability’ and is often used as meaning ‘might’ ” or “a mere ability to do or make.” Burrell, id., 54.

Neither the case law nor MAI Instructions offer a clear-cut answer to this question. Some cases use the word “should” in their approved instructions or their discussion of the issue of constructive knowledge; other cases use “could.” Some MAI instructions approve the use of the word “could” for constructive knowledge submission; other instructions use “should.” No meaningful criteria for selecting “could” in some circumstances and “should” in others were discovered in reading the cases, instructions and notes on use.

To add to the confusion, some cases use “could” and “should” in tandem in discussing constructive knowledge. Other cases use “should” in discussing or approving instructions using “could.” Some approved instructions use both words in different portions of the same instruction. One case used “should” in defendant’s verdict-director and “could” in plaintiff’s. The encyclopedias also use both words, again, sometimes in tandem.

In White v. Gallion, 532 S.W.2d 769 (Mo. App.1975), plaintiff’s verdict-director MAI (17.14 modified) submitted the issue of defendant’s constructive knowledge of plaintiff’s position of immediate danger by the words “ ‘ “could have known,” ’ ” at 770. Defendant’s counsel contended in final argument that these words did not impose a duty of lookout. In holding that argument to be reversible error, the court cited the Notes on Use, No. 3 for MAI 17.14, which equated the phrase “ ‘could have known’ ” with lookout. The court agreed those words should be used when there is a duty of lookout.

White, therefore, provides authority for approving defendant’s choice of the word “could” in submitting the issue of constructive knowledge. The issue of “could” as opposed to “should” is, however, a false issue under the circumstances of this case. As noted above, every person is under an obligation to use ordinary care (or appropriate care in the case of a minor) for his own protection and is under a duty to make ordinary use of his faculties of sight, hearing and intelligence to avoid his own injury. Wells, supra. These duties place plaintiff under an obligation to see arid avoid that which is capable of being seen. It is the opportunity to appreciate peril which bars a plaintiff from recovery for defendant’s negligence. Bridges v. Arkansas-Missouri Power Company, 410 S.W.2d 106, 111 (Mo.App.1966). What is capable of being seen and appreciated ought to be seen and appreciated. If plaintiff was capable of knowing of the presence of the wire, and here he was, then, in the exercise of ordinary care for his own safety, he was obligated to have known of its presence. If plaintiff was under a duty to use his sight and intelligence and to exercise ordinary care, then nothing needed to be added to the ability to see and appreciate danger before an obligation to see and appreciate it arose. The use of the word “could” properly raised the issue of plaintiff’s constructive knowledge and appreciation.

The purpose of instructions is to guide the jury in reaching a just verdict by informing the jurors of the law as it is to be applied to the evidence they have heard. White v. Kansas City Public Service Co., 347 Mo. 895, 149 S.W.2d 375 (Mo.1941); White v. Metropolitan Life Ins. Co., 218 S.W.2d 795 (Mo.App.1949). An appellate court must review allegedly offending language in the light of the entire instruction. Arthur v. Royse, 574 S.W.2d 22, 24 (Mo. App.1978). Given the facts under consideration here, the instruction was a proper guide to the jury as to the applicable law. No error was committed through its use.

V. Did the instruction, by submitting plaintiff “caused his body to contact the electric wire,” allow the jury to consider conduct by plaintiff which was not the proximate cause of his injury? (Ground No. 4).

Plaintiff’s argument, as clarified by his brief, is that defendant presented evidence which would have allowed the jury to find plaintiff fell from the tree into the wire or was on a branch which broke and dropped him onto the wire. By submitting “caused his body to contact,” defendant’s instruction, it is argued, allowed the jury to consider conduct which was not the proximate cause of plaintiff’s injury. [See Williams v. Springfield Gas and Electric Co., 274 Mo. 1, 202 S.W. 1, 2 (1918), in which case the supreme court cited with approval Thompson v. Slater, 197 Mo.App. 247, 193 S.W. 971 (1917), where a boy, who was sitting on a limb which broke, fell onto uninsulated wires. It was held in Thompson that the noninsulation and not the fall was the proximate cause of his injuries.]

“To determine the meaning of an instruction its entirety must be considered, not just isolated paragraphs, words or phrases . .” Hart v. City of Butler, 393 S.W.2d 568, 577 (Mo.1965). When this challenged phrase is read in the light of the whole instruction, plaintiff’s point must be rejected.

Paragraph First required the jury to find plaintiff knew and appreciated (actually or constructively) the danger and risk of contact with the electric wires. Paragraph Third required that the jury find plaintiff’s action in causing his body to contact the wire, as submitted in Paragraph Second, was negligent. Paragraph Fourth required a finding that his negligent conduct was the proximate cause of his injury. Negligence was then properly defined for a minor.

In finding contributory negligence the jury was thus limited, in light of the entire instruction, to negligent contact with the electric wire. There was no roving commission because simple contact with the wire through nonnegligent actions would not have been sufficient to support a finding of contributory negligence.

Plaintiff has not only isolated the challenged phrase from the whole of the instruction, he has also converted the words “caused his body to contact the electric wire” into “contacted the electric wire.” “Caused his body” clearly implies volitional conduct on plaintiff’s part which brought him into contact with the wire. A simple fall cannot be categorized as “caused his body to contact.”

This view is supported by plaintiff's own evidence. Plaintiff’s expert witness and his medical witness both believed his burns were caused by contact between his back and the electric wire. Plaintiff’s expert held the opinion plaintiff came into contact with the wire while he was climbing or circling around the limb. Plaintiff specifically denied falling onto the wire.

Further, language similar to that challenged here was used and approved in Robinett v. Kansas City Power & Light Compa ny, 484 S.W.2d 506, 510 (Mo.App.1972), where plaintiff either failed to keep a careful lookout for the electric wire or “caused or permitted the truck to contact the electric wire . . . .” The court specifically rejected the argument that “caused or permitted the truck to contact the electric wire” amounted to submission of general negligence.

The challenged language was narrowly focused, by the entire instruction and the facts of the case, on the volitional conduct of plaintiff in causing his body to contact the electric wire. Speculative, non-proximate cause contact was sufficiently excluded.

VI. Did the language “caused his body to contact the wire” amount to a roving commission and allow the jury to find in favor of defendant if “any” of plaintiff’s damages were the result of any conduct of plaintiff which caused his body to touch the wire? (Ground No. 5).

The “roving commission” portion of this point was treated in V above.

Plaintiff appears to argue further that if the jury found he was negligent in falling out of the tree, the instruction authorized a finding for defendant if plaintiff suffered any injuries from the fall, as opposed to injuries suffered from contact with the electric wire.

Analysis of the instruction has shown it properly excluded consideration of a fall as negligent conduct proximately causing plaintiff’s injury. Further, MAI Instructions 32.01, 32.02, 32.03, 32.04 and 32.05 use language similar or identical to that found in Paragraph Fourth of defendant’s verdict director. The challenged language is, in fact, taken verbatim from MAI 32.01. There was no error.

VII and VIII. (Grounds No. 6 and 7).

Plaintiff’s final two challenges — that the instruction did not require the jury to find the electrical burns were proximately caused by plaintiff’s negligence in causing his body to contact the wire and that the instruction gave the jury a roving commission to speculate on what conduct of the plaintiff constituted negligence — have been sufficiently answered in the foregoing analysis. In connection with the latter point, Paragraph Third restricted the jury’s consideration to the specific grounds of negligence hypothesized in Paragraph Second. The language referred the jury back to Paragraph Second and thereby limited their consideration to the conduct submitted. Compare Gousetis v. Bange, 425 S.W.2d 91 (Mo.1968); Pollard, supra; State ex rel. Burgess v. Neaf, 439 S.W.2d 190 (Mo.App. 1969).

Finally, the other objections raised in plaintiff’s motion for a new trial have been reviewed. Eilers v. Union Electric Company, 386 S.W.2d 427, 431[8] (Mo.App.1964). An extended analysis of those issues is not necessary. The record in the case and the applicable rules of law indicate they were properly overruled by the trial court.

Therefore, the cause is reversed and remanded with instructions to reinstate the verdict for the defendant and enter final judgment thereon.

WEIER, C. J., and SMITH, J., concur.

      . Cover v. Phillips Pipe Line Company, 454 S.W.2d 507 (Mo. 1970); Turpin v. Shoemaker, 427 S.W.2d 485 (Mo.1968); Carey v. Crawford Electric Cooperative, Inc., 347 S.W.2d 184 (Mo. 1961); Shackman, supra, 53.

      . White v. Gallion, 532 S.W.2d 769 (Mo.App. 1975); Erbes v. Union Electric Company, 353 S.W.2d 659 (Mo. 1962); Thompson v. Quincy, O. & K. C. R. Co., 18 S.W.2d 401 (Mo.1929); Kewanee Oil Company v. Remmert-Werner, Inc., 508 S.W.2d 23 (Mo.App. 1974); Creager v. Chilson, 453 S.W.2d 941 (Mo. 1970); Mayfield v. Kansas City Southern Ry. Co., 337 Mo. 79, 85 S.W.2d 116 (1935); Kraus v. Auxvasse Stone & Gravel Company, 444 S.W.2d 434 (Mo. 1969).

      . MAI Instructions 17.04, 17.14, 17.15, 22.03, ' 33.06(1), (2), (3) and (6).

      . MAI Instructions 22.01, 22.02, 22.04, 22.05.

      . Young v. Grotsky, 459 S.W.2d 306 (Mo. 1970); Erbes v. Union Electric Company, supra; Thompson v. Quincy, O. & K. C. R. Co., supra.

      . Erbes v. Union Electric Company, supra; Kewanee Oil Company v. Remmert-Werner, Inc., supra; or “could” in discussing a “should” instruction, Butler v. Phillips Pipe Line Company, 554 S.W.2d 449, 450-451 (Mo.App. 1977).

      . Erbes, supra; Thompson, supra.

      . Koirtyohann v. Washington Plumbing & Heating Co., 494 S.W.2d 665 (Mo.App. 1973).

      . “Could”: 57 Am.Jur.2d Negligence, § 338; “should”: 57 Am.Jur.2d Negligence, §§ 323, 325, 332; 65A C.J.S. Negligence § 121; should or could or should and could: 57 Am.Jur.2d Negligence, § 332 and 65A C.J.S. Negligence § 120(1).


text:
    STATE of Missouri ex rel. CHURCH’S FRIED CHICKEN, INC., Relator-Appellant, v. The BOARD OF ADJUSTMENT OF the CITY OF ST. LOUIS, Charles K. Baker, Gregory Gunn, Joseph F. Failoni, Charles A. Sala, in their capacity as members of the Board of Adjustment of the City of St. Louis, Respondents-Respondents.
    No. 40222.
    Missouri Court of Appeals, Eastern District, Division One.
    April 3, 1979.

      Kenneth C. Brostron, James J. Hennelly, Lashly, Caruthers, Thies, Rava & Hamel, St. Louis, for relator-appellant.
    Jack L. Koehr, City Counselor, Edward M. Peek, Associate City Counselor, St. Louis, for respondents-respondents.
   SNYDER, Presiding Judge.

Appeal from a judgment of the Circuit Court of the City of St. Louis, in a certiora-ri proceeding, affirming a decision by the Board of Adjustment to revoke a building permit issued to Church’s Fried Chicken, Inc., for the construction of a restaurant at 1825 Gravois.

The issue on appeal is whether the Board of Adjustment’s decision that Church’s Fried Chicken, Inc. was constructing a “carry-out restaurant,” as that term is defined in St. Louis Zoning Code, Section 901.095, is supported by competent and substantial evidence upon the whole record or is clearly contrary to the overwhelming weight of the evidence.

Reversed and remanded with instructions to reinstate the building permit.

On December 30, 1976 the Department of Public Safety, Division of Building and Inspection of the City of St. Louis, issued a building permit to Church’s Fried Chicken, Inc. (Church’s) to erect a one-story “sit-down restaurant" at 1825 Gravois in the City of St. Louis. The Board of Adjustment of the City of St. Louis (Board) informed Church’s, by a letter dated March 9, 1977 and received by Church’s March 10, 1977, that St. Michael’s Russian Orthodox Church (St. Michael’s) had requested a “clarification in the issuance” of Church’s building permit. St. Michael’s is located directly to the west and immediately adjacent to the Church’s lot. The request for “clarification” was apparently treated by the Board as an appeal by St. Michael’s of the issuance of the building permit. A hearing was set for and held on March 23, 1977.

On March 30, 1977 Church’s received notice that its building permit had been revoked. The revocation was based upon the Board’s finding that the proposed facility was a “carry-out restaurant” rather than a “sit-down restaurant.” Construction was halted. At that time the restaurant was 65 percent complete and $112,000 had been spent on the purchase of the lot and construction of the building.

Church’s sought and was granted a rehearing on the building permit revocation. At the rehearing on May 18, 1977 four witnesses appeared on behalf of St. Michael’s: John Laskowski, president of St. Michael’s Church council; George Fedak, a parishioner of St. Michael’s; Father David Homiak, parish priest of St. Michael’s; and St. Louis Alderman Raymond Leisure, who represents the ward containing St. Michael’s parish. Church’s produced two witnesses: Reginald Lynch, Church’s Division Manager for the nine-state region including Missouri; and Gerald Oliver, construction engineer for Church’s. Their testimony will be discussed below.

On May 20, 1977 the Board issued its Findings of Fact, Conclusions of Law and Order and again revoked the building permit on the ground that the proposed restaurant was a “carry-out restaurant,” as that term is defined in St. Louis Zoning Code § 901.095. Such a use at the proposed location is not permissible under § 910.020 of the Zoning Code. A “sit-down restaurant,” however, is a permitted use.

Pursuant to § 89.110, RSMo 1969 and Rule 100.01 et seq., Church’s filed a petition for writ of certiorari on June 17, 1977. The case was submitted to the circuit court upon the transcript and exhibits before the Board and no further evidence was received. The circuit court affirmed the findings and order of the Board, and this appeal followed.

The scope of judicial review to be given a decision of the Board of Adjustment in zoning matters is limited:

Neither the Circuit Court nor this court can try this case de novo or substitute its judgment for that of the Board. Review is limited to a determination of whether the ruling of the Board is authorized by law and is supported by competent and substantial evidence upon the whole record. If the ruling of the Board is supported by substantial evidence and the result reached is reasonable the courts are without authority to disturb the finding unless it is clearly contrary to the overwhelming weight of the evidence. [Citing cases and authorities].

State ex rel. Ellis v. Liddle, 520 S.W.2d 644, 646 (Mo.App.1975).

“Substantial evidence” has been defined as “evidence which, if true, would have a probative force upon the issues. [Citing cases].” State ex rel. Rice v. Public Service Commission, 359 Mo. 109, 220 S.W.2d 61, 64 (Mo. banc 1949). Accord, State ex rel. Utility Consumers Council v. Pub. Serv. Com., 562 S.W.2d 688, 692 (Mo.App.1978), cert. denied, - U.S. -, 99 S.Ct. 192, 58 L.Ed.2d 177 (1978). In Central Bank of Clayton v. State Banking Bd. of Mo., 509 S.W.2d 175, 188 (Mo.App.1974), this court, in discussing that quantum of evidence described it as:

“evidence from which the trier or triers of fact reasonably could find the issues in harmony therewith; it is evidence of a character sufficiently substantial to warrant the trier of facts in finding from it the facts, to establish which the evidence was introduced.” Collins v. Division of Welfare, 364 Mo. 1032, 270 S.W.2d 817, 820 (1954).

Section 901.095 of the Zoning Code sets out two factors for the Board’s consideration in determining whether a proposed restaurant will be a “carry-out restaurant” and subject to the proximity strictures of § 910.020. The first of these is whether the food will be “primarily sold in a packaged, ready to consume state.” The second consideration is whether the food is “intended for consumption by the customer off the premises.” For the Board’s decision to stand, there must be substantial and competent evidence on both elements.

Examination of the entire record in light of these considerations compels the conclusion that the Board’s decision is not supported by competent and substantial evidence.

The only evidence on the first element— how the food will be served — was provided by Reginald Lynch, Church’s Division Manager. He stated, on direct examination, that “[t]he food that will be served on these premises will be served on open trays for on the property unless the customer wants food to go and then we’ll put it in boxes.” This statement was not contradicted or challenged by any evidence from St. Michael’s. The Board, in its findings of fact, did not include a finding that the testimony of Mr. Lynch was not credible. In Mo. Church of Scientology v. State Tax Comm., 560 S.W.2d 837, 843 (Mo. banc 1977), the court stated the rule that an administrative tribunal “may not arbitrarily disregard or ignore undisputed testimony of a witness not shown to have been impeached or disbelieved” by the administrative tribunal. Thus, the only evidence on the first element showed the food was to be primarily served on open trays and not in a packaged state. There was no evidence, substantial or otherwise, to the contrary.

In finding the second element — that the food was intended for consumption off the premises — the Board relied “upon the nature of the Applicant’s business and the size and character of the proposed building, including available seating capacity.” The Board made three findings of fact which it apparently considered supportive of its conclusion on this element. In “Finding of Fact No. 12,” the Board stated, “According to its 1975 Annual Report, ‘Church’s Fried Chicken, Inc.’ sells fried chicken and complementary food items through a chain of drive-in take-out neighborhood stores.” In “Finding of Fact No. 13,” the Board found that Church’s had “provided twenty-four (24) seats for sit-down service in an area of approximately 240 or 250 sq. ft.” In “Finding of Fact No. 15,” the Board stated, “Testimony on behalf of the Applicant indicated that the seating capacity of the subject store is approximately 3.6 times as many seats as it normally provides in its carry-out stores and further that it has one (1) store in St. Charles, Missouri with a seating capacity of fifty-two (52) seats.”

Unfortunately, Finding No. 12 relies on documentary evidence not properly admitted. Finding No. 13 is factually accurate but not supportive of the Board’s conclusion. Finding No. 15 misstates the facts as they were presented to the Board.

Leaving aside the issue of whether the 1975 Annual Report was competent evidence on the nature of Church’s business (i. e., not hearsay), the record reveals this document was never admitted into evidence at the hearing on May 18, 1977. It was never introduced, marked or received in evidence and made part of the record of this case. While it is included in the exhibits on appeal as “Exhibit ‘J’,” that letter was assigned at the hearing to the “Agreed Statement of Facts” submitted by the parties, which was admitted after the only reference to the Annual Report. Church’s had no opportunity to challenge its introduction and consideration in the absence of a formal offer of the report as evidence. Further, Church’s made repeated objections to admission of or reference to other similar documents. These objections were sustained and the objects withheld, the chairman stating that this documentary evidence would be excluded. The chairman also stated these reports were not in issue, the sole issue being the type of operation to be carried on at 1825 Gravois.

Although the rules of evidence have been greatly relaxed in administrative hearings, “it does not follow that the fundamental rules of evidence can be abrogated and nullified. [Citing cases].” State ex rel. Bond v. Simmons, 299 S.W.2d 540, 545 (Mo.App. 1957). Further, “a determination as to whether the decisions of any administrative agency is supported by competent and substantial evidence upon the whole record can only be made by reference to such evidence as is incorporated in the record presented for review. [Citing authorities].” Koplar v. State Tax Commission, 321 S.W.2d 686, 695 (Mo.1959). Because the only item of documentary evidence relied upon by the Board to support its conclusion that the nature of Church’s business was “carry-out restaurants” was not in the record, that finding is not supported by substantial and competent evidence.

The only other evidence on the “carryout” nature of Church’s business were the conclusional statements of the witnesses for St. Michael’s. Mr. Laskowski stated, “To have a sit-down restaurant, believe me, I think I would have a bigger dining area . .” Mr. Fedak stated, “My impression and opinion of a restaurant that would be serviced would be a waitress that would come and serve you sit-down style.” Aider-man Leisure simply said, “[A]s far as I’m concerned, it’s a carry-out restaurant.” These witnesses’ conclusions on the very issue before the Board, or their opinions as to how a sit-down restaurant should be run, devoid of any factual support, do not rise to the level of substantial and competent evidence on the factor set out in § 901.095— “intended for consumption by the customer off the premises.”

In concluding that “the size and character of the proposed building, including available seating capacity” indicated Church’s intended to operate a “carry-out” restaurant, the Board must have relied in large part on “Findings of Fact" Nos. 13 and 15.

The fact that twenty-four seats were to be provided for sit-down service (Finding No. 13) is not substantial evidence that the proposed business was to be a carry-out restaurant in the absence of some further evidence that restaurants with only twenty-four seats were invariably, or even usually, carry-out restaurants. The only evidence before the Board relating to the number of seats and size of the restaurant in this connection were the conclusional statements of witnesses Laskowski, Fedak and Leisure.

The first portion of Finding No. 15 “that the seating capacity of the subject store is approximately 3.6 times as many seats as it normally provides in its carry-out stores” misstates the evidence. The actual testimony of Mr. Lynch, on behalf of Church’s was that “we have assigned over three times, three point six [3.6] times as much area as sit-down restaurant on Gravois as we have for carry-out.” His actual statement obviously has a different meaning and implication in light of the language of the ordinance — “intended for consumption by the customer off the premises.”

The second portion of the finding — regarding the number of seats at a St. Charles Church’s restaurant — was based on irrelevant evidence. At the hearing on May 18, 1977 the chairman repeatedly stated the only issue before the Board was the character of the store at 1825 Gravois and that “anything pertaining to other sites and so forth is not at issue.” When Father Hom-iak objected to Mr. Oliver’s comment on other stores, the chairman replied, “I will disregard that [Oliver’s testimony]. Our only discussion at this time is about the Church’s on Gravois.” The chairman’s statements at the hearing show he realized comparisons to and comments about Church’s other stores were irrelevant to the issue of Church’s intended operations on Gravois. Yet, the Board’s findings rely on this irrelevant evidence.

Appellate courts are, with good reason, hesitant to interfere with and overturn the decisions of administrative tribunals. The standard devised for appellate review insures that the majority of their actions and decisions will be upheld. However, when an administrative tribunal makes a decision based on incompetent, unadmitted, irrelevant and misstated evidence and relies on bald conclusional statements to support its decision, the judgment of the tribunal must be reversed. And where the overwhelming weight of the evidence supports the conclusion that an applicant for a building permit does not intend to operate a restaurant which will be primarily “carry-out,” as that term is defined in § 901.095 of the Zoning Code, the permit may not be revoked on the ground that it does so intend. Here, Church’s intends to primarily serve food on open trays for consumption on the premises. Booths and settees seating twenty-four patrons — the maximum number of seats feasible in the dimensions of the building — will be provided immediately adjacent to the counter where the food is ordered and served. The ratio of seating area to carryout area is 3.6 to 1. A drive-through window included in the original plans and construction package has been abandoned. Whether the decision of the Board is condemned as not supported by competent and substantial evidence, or as against the overwhelming weight of the evidence, it cannot stand.

It is unnecessary to rule on Church’s other contentions that: (1) St. Michael’s was guilty of laches and its appeal untimely; (2) the Board was estopped from revoking the permit and was guilty of laches; and (3) St. Michael’s was not an aggrieved person within the meaning of § 89.100, RSMo 1969.

Reversed and remanded, with instructions to reinstate the building permit.

WEIER, C. J., and SMITH, J., concur.

      . Section 901.095 of the Zoning Code defines a “carry-out restaurant” as “an establishment where food, frozen dessert, or beverages are primarily sold in a packaged, ready to consume state intended for consumption by the customer off the premises.”

      . Section 910.020 of the Zoning Code sets out the appropriate use regulations and states that, for this type of district, on a street with an average weekday traffic volume in excess of 7,500 vehicles per day, no carry-out restaurant shall “be erected nearer than 300 feet of such use on the same side of the street . . . The City Counselor’s Office and Church’s submitted an agreed statement of facts to the Board which stipulated the traffic volume in this block of Gravois exceeded 7,500 vehicles per average weekday and that there was a Jack-in-the-Box carry-out restaurant on the same side of the street within 300 feet of Church’s structure.

      .Accord: Rosedale-Skinker Imp. Assn. v. Board of Adjustment, 425 S.W.2d 929 (Mo. banc 1968); Lichte v. Heidlage, 536 S.W.2d 898 (Mo.App.1976); Brown v. Board of Adjustment, 469 S.W.2d 844 (Mo.App.1971); 82 Am. Jur.2d Zoning, §§ 334-335.

      . Accord: State ex rel. Kahler v. State Tax Commission, 393 S.W.2d 460, 465 (Mo. 1965); Koplar v. State Tax Commission, 321 S.W.2d 686 (Mo. 1959).

      . Standard and Poor’s Register (1977); Moody’s OTC Industrial Manual (1976); Food Service Chain Executive Magazine, January, 1977 issue.


text:
    Eugene MILLS, d/b/a Eugene Mills and Sons, Plaintiff-Appellant, v. B. Wayne FREEMAN and Doris Eileen Freeman, Defendants-Respondents.
    No. 39732.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 3, 1979.
    William D. Kimme, Washington, Isadore Lamke, Union, for plaintiff-appellant.
    Dallas W. Cox, Jr., Terrence F. Moffitt, St. Louis, for defendants-respondents.
   STEWART, Judge.

This is an appeal from the order of the trial court granting defendant a new trial after a jury verdict in plaintiff’s favor in an action to enforce a mechanics lien.

The trial in this case was held on June 23, 1977. One of the members of the venire revealed that plaintiff’s counsel had been retained and performed services for her in April of 1977. Defendant’s challenge for cause was denied.

After the verdict for plaintiff the trial court granted a new trial on the ground that it should have stricken the venireman after she had been challenged for cause for the reason that the plaintiff’s counsel had represented her within six months of the date of the trial.

Chapter 495, RSMo 1969 governs petit jury selection in counties of 60,000 to 200,-000 population. Franklin County, the situs of the trial in this case, is governed by that statute. The basis for the court’s action is § 495.150 which reads as follows:

“If upon the voir dire it appears that any juror is in the employ of any person, firm, or corporation who has within the six months last past employed, or who within such time has had in his or its employ, any attorney on either side of the case being tried, the opposing party shall have the right to challenge such juror for cause. (R.S.1939, § 748)”

Plaintiff would argue that under the statute the trial court is not required to excuse a juror who has been represented by counsel for either side when challenged. He urges that the trial court may in its discretion determine the qualifications of such a juror as it would any other juror challenged for cause and upon a determination that no prejudice exists, deny the challenge. He contends that the statute merely gives the right to challenge; that it does not create a disqualification.

The issue raised has not been specifically ruled by our courts. The right to challenge any juror for cause is fundamental to our system of jurisprudence. A party is entitled to a fair and impartial jury. He has a right to reject all who are prejudiced or unqualified. State v. Andrews, 371 S.W.2d 324 (Mo.1963). If we accept plaintiff’s interpretation of the statute the litigants have obtained nothing that they did not have before the statute was passed.

In statutory construction we give primary emphasis to the legislative intent as expressed in the statute. We also assume that the legislature intended to change the existing law and that it intended to pass a law that would be effective. Cohen v. Poelker, 520 S.W.2d 50 (Mo.1975). The legislature certainly intended to give to a litigant something more than the mere right to have the trial court act upon his request that a juror be excused in cases where counsel for one of the parties had represented the juror within six months of the trial. The only right that could be granted by the statute that did not exist before its passage is the right to have such juror excused upon request.

The legislative intent of § 495.150 was delineated in Learned v. Godfrey, 461 S.W.2d 5, 7 (Mo.1970). It is said in that case that the legislature believed that conditions existed in counties described in Chapter 495 which made it necessary to provide jurors in those counties who were entirely disinterested and free from the influence of the attorneys who were retained in the cause.

The facts in Learned are practically identical with the facts in this case. Two jurors were clients of the firm that represented defendant. The court granted plaintiff a new trial for failure to strike the two jurors when challenged for cause under § 495.150. It was contended that the statute applied to disqualify only those jurors who had been in the employ of a client of a lawyer in the case and not to a juror who is himself a client of one of the lawyers. Although the statute was not deftly drawn the court held that the legislature did not intend such an absurd result and that a reasonable interpretation also required the disqualification of the juror who was the diene of the lawyer. While the issue was not presented there is no doubt but that the Supreme Court read § 495.150 as a disqualification of the lawyer who had represented a juror within the six months period. See also Hicks v. Simonsen, 307 Mo. 307, 270 S.W. 318 (1925) holding the statute to be constitutional as a general rather than a special law.

A reasonable construction of the statute in accord with the legislative intent requires the court to strike a juror upon challenge when the juror or the juror’s employer has been represented by counsel for the opposing party within six months of the trial. The trial court did not err in granting a new trial.

Other matters urged by the parties need not be discussed.

The order of the trial court is affirmed and the cause is remanded for a new trial.

STEPHAN, P. J., and KELLY, J., concur.