author: TURNAGE, Judge.

text:
    Richard DEWEY, Appellant-Plaintiff, v. AMERICAN STAIR GLIDE CORPORATION, a corporation, Respondent-Defendant.
    No. KCD 27570.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.

      M. Randall Vanet, Lowe, Kokjer, Kircher, Wharton & Bowman, Kansas City, for appellant-plaintiff.
    Robert L. Driscoll, Stinson, Mag, Thomson, McEvers, & Fizzell, Kansas City, for respondent-defendant.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   TURNAGE, Judge.

Richard Dewey brought suit against American Stair Glide Corporation for damages for the alleged appropriation of a novel idea by Stair Glide resulting in its unjust enrichment.

By agreement the cause was tried by the court without a jury and the court entered a judgment for Stair Glide.

On this appeal Dewey claims essentially the court erred in finding his recovery was barred by the shop right doctrine and this court should enter judgment in his favor for both aetual and punitive damages. Reversed.

The trial court made findings of fact and conclusions of law. The following facts were substantially those found by the court.

Stair Glide is engaged in the manufacture of elevator chairs. These chairs, which operate on rails, are designed to accommodate persons who cannot climb stairs. The rails are affixed at the side of the stairway and the chair moves up and down by means of a cable operated by an electric motor.

In August, 1970, Stair Glide first became aware of a problem in the operation of the chair when it was notified an owner in Virginia had been thrown from the chair when a gear had stripped allowing the chair to accelerate to the bottom. Thereafter, other such failures occurred and resultant personal injuries and claims were made against the company. Eventually 32 failures were reported.

Stair Glide employed a metallurgist who examined the motors and determined the gears were underdesigned for the chair. Stair Glide realized it had about 2,000 chairs in use and it would be very difficult to trace and notify all of those customers.

Stair Glide consulted with a number of firms in an effort to have a safety device developed which could be fitted on the chairs already in use and which could be installed on new chairs as they were manufactured. However, none of these firms developed a satisfactory solution.

Stair Glide contracted with Midwest Research Institute (MRI) to help solve the problem. MRI developed a testing method to test chairs in use to determine those most likely to fail. A program was developed to test all chairs in use about October, 1970. As a result, a large number of motors were replaced. However, the need remained to develop a built-in safety device which could be installed to prevent a chair from suddenly accelerating.

MRI developed an internal safety device, but this did not prove to be the answer. During this time Stair Glide had heard proposals for everything from a large spring located at the bottom of the stairway which would allow the chair to bounce, to a dragchute to be attached to the chair. Between these extremes were all types of mechanically and electrically activated devices placed at every conceivable place on the chair and the tracks.

Dewey was employed in Stair Glide’s shop as a welder on the track and frame assembly. He had been employed by Stair Glide about a year and had been a welder for about 24 years. He was not employed by Stair Glide to do any engineering or design concept work.

Dewey first learned of the problem concerning the chairs in October, 1970, through “shop talk.” Dewey did not know the cause of the failures until the first part of November, 1970.

On the morning of Thursday, January 7, 1971, Dewey showed a rough sketch of a proposed safety device to Don Robertson, the general manager of Stair Glide. After looking at the sketch, both concluded it was too complicated. At about 10 minutes until 12:00 on that same day, an idea occurred to Dewey for a safety device and he gathered some scrap material around his work bench and started to make a mock up of this idea. He was soon stopped by his foreman and when Dewey told him what he was doing, the foreman informed him he was not to do that on company time. Dewey then returned to his regular duties until lunch time, but then spent his lunch hour collecting parts from the scrap barrel and built a model of his idea for a safety device. Dewey used the company welder and cutting torch as well as some of his own tools. Dewey testified employees were allowed to take home scrap parts such as he used.

The rough model was put together in about 15 or 20 minutes on Dewey’s lunch break and he then went to Robertson’s office and told him he wanted to show him what he had done. At the end of Dewey’s lunch hour, Robertson and another employee went to Dewey’s work bench where Dewey demonstrated the device. This device worked on the principle of a knurled knob being thrown against the cable so as to lock it against the striker plate. Dewey had not yet developed a triggering mechanism, that is, a way in which the knob could be thrown against the cable automatically when the chair began to accelerate. However, his device did demonstrate it was possible to snub or stop the cable in movement by forcing the knob against it. After he had viewed the demonstration, Robertson stated he liked the idea.

After Dewey had demonstrated his model, he did no further work on his idea that day, but spent the remainder of the afternoon at his regular duties. Robertson stated he had no knowledge that Dewey worked on the device on that day other than during his lunch hour between 12:00 and 12:30 P.M.

When Dewey left work he asked permission from Robertson to do work at home, but Robertson neither encouraged nor discouraged him. Dewey took the model home and called his step-son, who had some drafting training to help make a drawing of his idea. That night at home Dewey made a drawing of his safety device which he stated included all of the mechanical applications of his idea, including a triggering device.

In order to prove the day on which he had the idea and on which he made the drawing, Dewey took his drawing to a neighbor and had him and his wife sign the drawing with the time and date. Dewey returned home and made a copy of the drawing. Dewey called Robertson about 10:15 that evening and told him he had some drawings he wanted to show him the next day.

The next morning Dewey took his drawings to Robertson, but he was told he would have to show them to Schroeder, who was the engineer who worked for MRI and was assigned to the Stair Glide problem.

Later that day Dewey showed his drawing to Robertson and Schroeder and other officials of Stair Glide. At this time Dewey fully explained his idea and its operation. Incorporated in Dewey’s idea was a centrifugal clutch which MRI had used in its safety device. At this time Dewey gave one copy of his drawing to his immediate supervisor who in turn showed it to Robertson and Schroeder as Dewey explained it to them. This drawing was never returned to Dewey.

After the explanation of the drawing, Robertson requested Dewey to strengthen a bar on his model. Dewey thickened the backup bar of the snubbing device and attached a pulley. He did not build a complete working model of his idea.

After Dewey had done the additional work on his model, the safety device was attached to the top of a test track and a cable was run through the pulley and a chair was weighted with 400 pounds. The cable was then released to simulate the chair suddenly accelerating and each time the chair was stopped instantly by Dewey’s safety device. Everyone was satisfied with Dewey’s device, except some concern was voiced about damage to the cable when the device snubbed or stopped it.

A day or two after Friday, January 8, Dewey’s immediate supervisor arranged a demonstration of the safety header device developed by Dewey. The device worked without damage to the cable. MRI was then authorized to build an initial prototype of the device.

Thomas Scofield, a patent attorney, testified the drawing made by Dewey at home was not a finished engineering drawing, but was certainly not a rough sketch. He gave as his opinion the drawing would have been entirely adequate for filing a patent application and for making complete production drawings. He stated it was his opinion Dewey’s device was conceived when he formed the mental picture of the entire working device and it was perfected by the drawing which Dewey made on the evening of January 7.

On Monday, January 11, 1971, Dewey mentioned to his immediate supervisor that he wanted compensation for the use of his idea. He was informed the company had no money available for employee ideas. Dewey then consulted a patent attorney who wrote a letter to Stair Glide on January 14 notifying it of Dewey’s claim to be compensated for his idea.

Upon receipt of the letter from Dewey’s attorney, Stair Glide referred it to their own patent attorney. On February 17, 1971, Stair Glide was advised by its attorney that it could make full use of Dewey’s idea without compensation to him because Dewey had not contributed any idea under the shop right doctrine. After receipt of this advice, Robertson decided to continue with the development of the safety header device. No production model of such device had been produced prior to that time. Thereafter the safety header device was manufactured and used by Stair Glide.

The court did not accept as true Stair Glide’s evidence tending to show Dewey did not have a novel idea or contribute to the solution of the problem. Robertson testified Dewey’s only contribution was to weld a few pieces together and use Robertson’s idea to place the device at the top of the stairs. Stair Glide’s other employees also sought to minimize Dewey’s contribution. However, Schroeder testified the first idea he saw or heard about a safety device at the top of the stairs utilizing the ideas Dewey showed and demonstrated came from Dewey on January 8.

In its conclusions of law the court concluded Dewey was the originator of a novel idea and had a common law property right in it. The court further concluded Dewey had no obligation to assign his rights to this idea by virtue of his employment. The court further concluded the fact Dewey incorporated some elements of MRI’s safety device did not deprive him of being the originator of a novel idea since he brought various elements into a combination for a workable unit. The court stated it found against Dewey because the safety header device was conceived and perfected to practical usable form by use of Stair Glide’s time, money, materials and facilities.

There can be no doubt Dewey had a property right in his idea for a safety header device when this idea was reduced to a concrete form in the drawing and in the model which he made on his own time using Stair Glide’s scrap material. It was stated in Schonwald v. F. Burkart Mfg. Co., 356 Mo. 435, 202 S.W.2d 7, 12[2-5] (1947):

Of course, there can be no property right in a mere abstract idea, but there may be “in a particular combination of ideas or in the form in which ideas are embodied.” [Fendler v. Morosco, 253 N.Y. 281, 171 N.E. 56, 58.] Surely when ideas are embodied in a concrete plan for accomplishing a definite result, the one who has conceived the plan has a right to contract with reference to its disclosure and to give instructions in its use, even though he did not originate it in the sense that no one else ever had similar ideas.

On this appeal Stair Glide does not dispute the fact Dewey had a novel idea and has a property right in it, but contends the court was correct in its application of the shop right doctrine. The leading case on the shop right doctrine is United States v. Dubilier Condenser Corp., 289 U.S. 178, 53 S.Ct. 554, 77 L.Ed. 1114 (1933). Although the shop right doctrine as such was not involved in this case, the court nevertheless enunciated the doctrine which has been followed as embodying the requirements of shop right.

The Dubilier requirements for a shop right have been succinctly stated in Banner Metals, Inc. v. Lockwood, 178 Cal.App.2d 643, 3 Cal.Rptr. 421, 432 [22-23] (1960):

Where an employee (1) during his hours of employment, (2) working with his employer’s materials and appliances, (3) conceives and (4) perfects an invention for which he obtains a patent, he must accord his employer a non-exclusive right to practice the invention (United States v. Dubilier Condenser Corp., supra, 289 U.S. 178, 188, 53 S.Ct. 554, 77 L.Ed. 1114).

Thus, if Stair Glide is entitled to a shop right, or otherwise stated, a non-exclusive license to use Dewey’s idea without compensation to him, then the evidence must show Dewey conceived and perfected the safety header device during his hours of employment while working with Stair Glide’s materials and appliances.

The evidence as heretofore set out reveals that Dewey did have an idea concerning the safety header device on Thursday shortly before noon. However, when he started to do some work on the idea during working hours, he was told to discontinue this activity, which he did. Thereafter the work he did was on his lunch hour, using scrap material, and using some of Stair Glide’s equipment and some of his own. The idea was not fully developed at that time, and, in fact, was not fully developed until Dewey made his drawing at home Thursday night. At that time the idea was fully developed and was placed in a concrete form so that it could be utilized. Mr. Sco-field, the patent attorney, testified the drawing was sufficient to form the basis for the issuance of a patent and that plant drawings could be made from it to manufacture the device. The time spent on Friday on company time was devoted to demonstrating the idea and to making minor adjustments in the model which Dewey had already constructed on his own time, and was not spent in conceiving or perfecting his idea. Furthermore, the time spent on Friday was at the specific request of Stair Glide’s superintendent.

The trial court found the use of Stair Glide’s time and materials on Thursday was de minimis, and Stair Glide does not contend otherwise.

Although the court found the use of Stair Glide’s time and materials on Thursday was de minimis, it made no specific finding as to when Dewey conceived and perfected his idea on company time, nor when he used company materials sufficient to give rise to a shop right. The only time either could have occurred was on Friday, January 8.

The time spent on Friday, when Dewey offered to show his idea to his superiors, was spent to demonstrate that his idea functioned properly rather than in conceiving or developing the idea. By Friday, Dewey’s idea was fully developed and the only thing which remained to be done was to convince his superiors his idea was a good one which would solve the problem.

Stair Glide does not argue in its brief what has been said to this point, but stakes its claim to a shop right on the ground Dewey’s idea was not “reduced to practice” until Stair Glide had full production drawings made and caused the safety header device developed by Dewey to be manufactured. As shown above, the rule concerning shop right does not require a “reduction to practice.” The term “reduction to practice” is applied to inventions and has no place in the question of the application of the shop right doctrine. Consolidated Vultee Aircraft Corp. v. Maurice A. Gar-bell, Inc., 204 F.2d 946 (9th Cir. 1953).

Stair Glide cites cases such as Kinkade v. New York Shipbuilding Corporation, 21 N.J. 362, 122 A.2d 360 (1956). However, Kinkade did not require a “reduction to practice” before the shop right doctrine would be applied. Kinkade applied the requirements of the shop right doctrine as set out in Banner and found from the facts therein the employer had obtained a shop right in the employee’s invention. Likewise in other cases cited by Stair Glide, the doctrine as stated in Banner, which originates in Dubilier, was applied when the court found the facts came within the doctrine.

In this case the facts simply do not show Dewey developed his idea on company time using company materials or the time of fellow employees. The evidence unmistakably shows the idea was originated and fully developed by Dewey at home, and the work performed at the plant in developing the idea was during his lunch hour. Further time at the plant was spent on demonstrating the idea with a few minor adjustments, but not in originating and developing the idea as required to establish a shop right. The use of the small amount of company materials and equipment is not sufficient to establish a shop right. Banner, supra.

Stair Glide does not supply the deficiency in the court’s findings by pointing out the exact time or materials of Stair Glide that Dewey used. Like the court, Stair Glide presents only the general conclusion that Dewey did use company time and materials. Neither has this court found any time or materials of significance used by Dewey in conceiving and perfecting his idea which belonged to Stair Glide. The court’s judgment in denying recovery to Dewey because Stair Glide obtained a shop right in Dewey’s idea is not supported by substantial evidence and must for that reason be set aside. Murphy v. Carron, 536 S.W.2d 30, 32[1-2] (Mo.banc 1976).

One further point which Stair Glide inferentially raises as a defense to Dewey’s claim deserves mention. Dewey made his first demand for payment for any use of his idea or invention on Monday following his disclosure on Friday. When that demand was refused, his attorney wrote a demand to Stair Glide on the following Thursday. Stair Glide thereupon asked its attorney for advice on whether or not a payment to Dewey was required. It was only after Stair Glide’s attorney advised use of the idea or invention could be made without compensation that Stair Glide proceeded with the full development and manufacture of the safety header device. Thus, it is clear Stair Glide, as a matter of fact, did not rely on the failure of Dewey to demand compensation on Friday when the idea was revealed. Further, Stair Glide fails to show any change in position from Friday until Monday. Stair Glide does not assert any other reason to bar recovery on this ground. In this circumstance, the failure of Dewey to demand compensation on Friday is of no consequence. Osborn v. Boeing Airplane Company, 309 F.2d 99, 102 n. 7 (9th Cir. 1962).

Dewey makes some argument that the court’s conclusions are inconsistent. However, it is not necessary to resolve that contention, nor the contention of Stair Glide that the inconsistencies Dewey raises were the result of invited error, because this court finds the conclusion reached by the trial court is not supported by substantial evidence.

The conclusion necessarily follows that Stair Glide appropriated Dewey’s idea or invention and put such to its own use.

In his petition Dewey alleged Stair Glide was unjustly enriched when it misappropriated his safety header device. He further alleged Stair Glide had converted his design. Dewey prayed actual damages in the amount of the reasonable value of the savings realized by Stair Glide in using his safety device. It is apparent Dewey has co-mingled two theories of recovery in his pleading—a theory in contract based on unjust enrichment, and a theory in tort based on conversion.

A quasi contract arises from “obligations arising from ‘unjust enrichment’, i. e., the receipt by one person from another of a benefit, the retention of which is unjust.” Rolla Lumber Co. v. Evans, 482 S.W.2d 519, 522[5] (Mo.App.1972).

On the other hand, “ ‘[conversion is an unauthorized assumption and exercise of the right of ownership over the personal property of another to the exclusion of the owner’s right. * * * Carson Union May Stern Co. v. Pennsylvania R. Co., 421 S.W.2d 540, 543[3] (Mo.App.1967). Of course, conversion is based upon a tort theory-

The measure of damages for conversion is the value of the property converted. Roll v. Fidelity Nat. Bank & Trust Co. of Kansas City, Mo., 115 S.W.2d 148, 151[9] (Mo.App.1938).

A reading of Dewey’s petition leaves no doubt the petition sounds in contract based on the unjust enrichment of Stair Glide for the use of Dewey’s idea or invention without payment. This contract theory is clearly revealed in Dewey’s prayer for actual damages based on the savings realized by Stair Glide in utilizing Dewey’s safety device. Dewey prayed for an accounting in order to accurately determine the amount of savings which further indicates his theory of recovery was based on the quasi contract which resulted in Stair Glide’s unjust enrichment.

More importantly, Dewey’s evidence followed his pleading. He introduced evidence to show the amount Stair Glide saved by using his device. Had Dewey intended to recover on a conversion theory, he would have shown the actual value of the personal property converted, i. e., the prototype and design he drew. Both by pleading and proof Dewey has elected to attempt recovery on the theory of a breach of an implied contract. Therefore, recovery will be predicated on that theory.

The trial court, because of its judgment, did not consider the question of damages, however, the evidence concerning damages was fully presented and is contained in the voluminous transcripts before this court.

Under Rule 84.14 this court is required to give such judgment as the trial court should have given and to finally dispose of this case. This requires the assessment of the amount of damages Dewey should recover.

The measure of damages when the employer appropriates an idea of the employee based on the theory of unjust enrichment is the reasonable value of the use of the device and the reasonable value of the services rendered by the employee. Ma-tarese v. Moore-McCormack Lines, 158 F.2d 631, 635[9, 10] (2d Cir. 1946). One method by which the reasonable value may be determined is to calculate the savings realized by the company in utilizing the device. Matarese, supra.

In considering the question of damages it should be noted the safety header device was not installed on new units manufactured by Stair Glide nor was the device sold by Stair Glide to any other company or individual. Stair Glide paid the full cost of the manufacture of the safety header device.

When the gear failure was first reported, Stair Glide developed a program whereby all units previously sold and installed were inspected. All units tested were rated as to the gear wear. By application of the test results to a previously devised formula, units were placed in either a safe or unsafe classification. Those which were determined to be unsafe were replaced by Stair Glide at no cost to the owner. The replacement consisted only in replacing the housing containing the motor and the gears which operated the cable by which the chair was caused to go up and down the stairs. Safety header devices were not used on those units.

Safety header devices were only placed on units which tested in a range of close proximity to unsafe rating. . It was stipulated there were 287 safety header devices installed on previously sold chairs. However, 187 of these were later removed because the safety header device had a tendency to prematurely trip and was noisy when the chair was operated. When the device prematurely tripped, it was necessary for the dealer to make a trip to the site to reset the device. It was also necessary for the dealer to replace the cable because the device proved to damage the cable when it was activated. Thus the overall result was the use of 100 safety header devices.

Stair Glide contends there is no evidence to show units on which the safety header device was installed would have been replaced if the device were not available. Though his testimony was considerably hedged when he talked about a policy of either replacing a unit or installing a device, Robertson finally conceded he followed such a policy. It is a fair inference from this concession that the installation of a device saved the installation of a new unit.

The evidence showed there was a savings to Stair Glide by installing the safety header devices over replacing the unit. The difference in the direct cost between replacing a unit with a new one and installing a safety header device, considering the cost of a new unit, the cost of the safety header device, and the cost of installation of a new unit, less the salvage realized by Stair Glide, amounted to $236.02 per unit. For the 100 safety header devices utilized, this would mean a savings to Stair Glide of $23,600. In addition, there was a savings by utilizing the safety header device in shipping, packing and installation of $25.00 per unit. This would total $2500 for the 100 units.

By utilizing the 100 safety header devices, Stair Glide did not replace that number of units which meant new units could be sold at the normal profit rather than being used as replacements with no profit to Stair Glide. This amounted to an average of $88.50 per unit over the years 1971 to 1973. This savings totaled $8,850.

In addition Stair Glide did realize some savings in travel expenses for employees involved in the replacement of units because the time involved was less for installing the safety header device than the replacement process. Further, there was undoubtedly some value to the company in having the safety header device available for immediate installation to prevent further chair failure. The failures created a rather serious situation which caused the company to immediately mount a massive effort to find a solution. Not one failure was reported in any chair in which a safety header device had been installed. Thus, the company’s reputation was at least preserved to some extent by utilizing the safety header device.

The cost of the 187 units installed but later removed was to some extent offset by the value received during the period the devices were in use.

The direct cost savings to Stair Glide which can be definitely calculated totals $34,950. In addition, there was value which cannot be assigned a definite dollar figure. In considering all of the evidence, this court has concluded the reasonable value to Stair Glide for utilization of Dewey’s idea or invention is $30,000.

Dewey further claims punitive damages. As already noted, Dewey’s theory of recovery of actual damages is based on the contract theory of unjust enrichment. It is beyond question that punitive damages do not lie for a breach of contract. Smith v. Piper, 423 S.W.2d 22, 27[17-18] (Mo.App.1967). Thus, Dewey is not entitled to punitive damages.

The judgment is reversed and the cause is remanded with directions to enter a judgment in favor of Dewey and against Stair Glide .and to assess Dewey’s actual damages at $30,000, and to assess all costs against Stair Glide.

All concur.

      . A comprehensive review and discussion of cases involving the application of the shop right rule is found in Annotation, 61 A.L.R.2d 356 (1958).


source: Caselaw Access Project

author: PRITCHARD, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Larry D. FOSTER, Appellant.
    No. KCD 28270.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.
    Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Jeff W. Sehaeperkoetter, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, C. J., DIXON, J., and PRITCHARD, P. J.
   PRITCHARD, Presiding Judge.

Appellant was convicted by the verdict of a jury of the commission of these crimes: Count I, burglary of and stealing from the M & M Hearing Aid Company, 3600 Broadway, Kansas City, Missouri; Count II, burglary of and stealing from Rhoden Investment Company, 3600 Broadway, Kansas City, Missouri. Upon a finding of the applicability of the Second Offender Act, the court sentenced him: Count I, burglary, 5 years, stealing, 2 years, to run concurrently; Count II, burglary, 4 years, stealing, 2 years, to run concurrently. The sentences, however, under Counts I and II were ordered to run consecutively. Both Counts I and II were alleged to have occurred on the same day, November 12, 1974.

The sole point presented is whether the trial court erred in failing to sustain an objection [without grounds stated] and a request for mistrial because of the prosecuting attorney’s opening statement to the jury that “The evidence will be that on November 12, 1974, several burglaries occurred at the Broadway-Valentine Shopping Center.” (Italics added.) The assertion of error is that the statement injected “proof of separate, distinct crimes for which appellant was not being tried and were prejudicial, denying him a fair trial.”

The sufficiency of the evidence to sustain the conviction is not challenged. The evidence showed that the two businesses, located at the common address, 3600 Broadway, had been burglarized at about the same time, and appellant was apprehended across the street, after having been seen exiting from Rhoden and entering M & M, with loot from both businesses in his possession.

The complaint is that the word “several” connoted more than the two burglaries. The dictionary definitions of “several” vary: “In legal use: More than one. * * As a vague numeral: Of an indefinite (but not large) number exceeding two or three; more than two or three but not very many.” The Oxford English Dictionary, Vol. IX, p. 568; “more than two, often used to designate a number greater than one.” Black’s Law Diet., Rev. 4th Ed., p. 1540; consisting of “an indefinite number more than two and fewer than many.” Webster’s Third New International Dict., Unabridged, p. 2080. Among cases holding that several means more than one are: Walker v. Rowe, 41 Ga.App. 769, 154 S.E. 722 (1930); Black v. Brooks, 60 Tex.Civ.App. 533, 129 S.W. 177 (1910); Rowe v. Walker, 40 Ga.App. 1, 148 S.E. 762 (1929); Western Union Tel. Company v. DeAndrea, 45 Tex.Civ.App. 395, 100 S.W. 977 (1907); and Walton v. U. S. Steel Corporation, 362 S.W.2d 617 (Mo.1962). Those cases saying that “several” means more than two are: Brown-Service Insurance Company v. Wright, 32 Ala.App. 578, 28 So.2d 318 (1946); Day v. Becker, 145 S.W. 1197 (Tex.Civ.App.1912); Lunt v. Post Printing & Publishing Company, 48 Colo. 316, 110 P. 203 (1910) [overruled on other grounds]; and Barber v. County Court of Brooke County, 114 W.Va. 255, 171 S.E. 589 (1933).

The varied disparate definitions and interpretations of the meaning of the vague word “several” above set forth are of no consequence in this case. Immediately after the request for mistrial, the prosecuting attorney stated to the jury that the two burglaries occurred at Rhoden and M & M, which businesses were located next door to each other. The evidence showed no other offenses. Obviously, the two mentioned offenses occurred approximately simultaneously or as a part of a same scheme or transaction, and thus do not offend the rule against evidence, or allusion to evidence, of other crimes than those for which a defendant is on trial. Taken in the context of the statements, no error appears.

The judgment is affirmed.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    Leo M. MULLEN, M.D., Appellant, v. CITY OF KANSAS CITY, Missouri, a Municipal Corporation, and Board of Zoning Adjustment, Respondents.
    No. KCD 28399.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.

      Haskell Imes and Allan R. Browne of Ennis, Browne, Martin & Tapp, Kansas City, for appellant.
    Aaron A. Wilson, City Atty., James C. Bowers, Jr., Asst. City Atty., Kansas City, for respondents.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   SWOFFORD, Presiding Judge.

This appeal involves an attempt by the appellant to establish a legal nonconforming use status under Missouri Zoning Ordinances for a horse breeding farm at 7611 Sycamore in Kansas City, Missouri, zoned for single family dwellings. Appellant’s application for such authority was denied by the Board of Zoning Adjustment (Board) after two evidentiary hearings, and he filed his petition for review, as provided by law, in the Circuit Court. That court affirmed the Board’s ruling, finding that there was competent and substantial evidence to support the Board’s decision denying appellant’s request for a special permit for nonconforming use of the property for horse breeding purposes and, thereafter, denied a rehearing. This appeal followed in due course.

The appellant advances two points upon which he seeks reversal. His second point will be initially considered because, if meritorious, it disposes of the entire appeal. He asserts that, since the Board made no findings of fact and no declarations of law, “the orders of the court (below) were illegal and without authority” because “the circuit court was afforded no way to make its determination as to the propriety of the Board’s decision”. It is true that the Board’s duty is to find and determine the facts. Veal v. Leimkuehler, 249 S.W.2d 491, 496[9—12] (Mo.App.1952); McKinney v. Board of Zoning Adjustment of Kansas City, 308 S.W.2d 320, 322[1, 2] (Mo.App.1957).

Appellant, however, cites no eases or other authority supportive of his position that the Board must make written findings of fact. No such requirement is found in the Zoning Ordinances of Kansas City nor in Chapter 89, RSMo 1969 (Zoning and Planning), nor in the case law. The cases relied upon by appellant which require reversal for lack of written findings of fact and conclusions of law deal with boards or administrative bodies governed by Chapter 536 RSMo 1969 (Admr. Procedures & Review). These statutes do not deal with nor apply to municipal zoning board decisions. Cohen v. Ennis, 314 S.W.2d 239, 244[3, 4] (Mo.App.1958); Reed, “The 1945 Constitution and Administrative Agency Legislation”, 19 Univ. K.C.Law Rev., 282, 287 (1950-1951); Section 536.100 RSMo 1969.

Moreover, the appellant concedes in his brief that the evidence before the Board was not in any dispute or material conflict (App. Brief, pp. 5-6) and he made no request for any written findings or conclusions to the Board, nor did he assert any error based upon the lack thereof in his petition for review or certiorari in the court below. This second ground or point on this appeal is without merit and is ruled against appellant.

The appellant’s first point, in summary, is that under the undisputed evidence the property in question has been used for horse breeding purposes for such a time before the imposition of a zoning ordinance restricting its use to single family dwellings that a “de facto horse breeding farm situation was established” i. e. an undisputed nonconforming use. Therefore, the appellant argues, the Board’s orders were without reasonable basis and “against the overwhelming weight of the evidence.”

It should be here noted that no additional evidence was heard in the Circuit Court and its decision, now under review, was based solely upon the transcript of the testimony before the Board. Under such circumstances the scope of this court’s review is whether or not, in the proceeding before the Board, there was competent and substantial evidence to support the Board’s order. Beckmeyer v. Beuc, 367 S.W.2d 9, 11[1, 2] (Mo.App.1963); Pearce v. Lorson, 393 S.W.2d 851, 854[1] (Mo.App.1965).

The property in question consists of approximately 6 acres of land, and was annexed to Kansas City, Missouri in 1957 and became subject to the municipal zoning law. It is conceded that the area in which this property is located by such annexation became zoned for single family dwellings and that the use made of the property by appellant was nonconforming. It was by application to the city for permission to legally continue such use that this proceeding was initiated.

Section 65.020 of the zoning ordinance defines a nonconforming use as “one that does not, by reason of use, size or design comply with the regulations of the district or districts in which it is situated.” Section 65.230 provides that a lawful nonconforming use existing at the time the zoning became applicable may be continued with certain exceptions. Such lawful nonconforming use may not be changed to a lower use nor may it be discontinued or abandoned and then resumed after a lapse of six months. Section 65.230(7). The Commissioner of Buildings and Inspections is authorized to issue certificates of occupancy for all lawful nonconforming use.

All zoning ordinances must contain provisions exempting from their imme-

diate operation existing nonconforming uses. City of Monett, Barry County v. Buchanan, 411 S.W.2d 108, 115[10] (Mo.1967), and nonconforming uses or structures existing at the time of the effective date of a zoning ordinance may be continued. State ex rel. Capps v. Bruns, 353 S.W.2d 829, 830[1] (Mo.App.1962). A legal nonconforming use must be a continuance of the same or similar use and not some other kind of nonconforming use. Royal Meat Products Co. v. Kansas City, Mo., 240 Mo.App. 688, 214 S.W.2d 713, 717[1, 2] (1948); 8A McQuillin, Municipal Corporations, Sections 25.202-25.212a (1976). The spirit of zoning ordinances is to decrease and diminish nonconforming uses in the public interest. Hoffman v. Kinealy, 389 S.W.2d 745, 750[4] (Mo. banc 1965).

In this type of proceeding the burden of proof was upon appellant to establish the lawful and continued existence of the use of the property at 7611 Sycamore as a horse breeding farm from 1957, the date of annexation, to the present time. Kansas City v. Wilhoit, 237 S.W.2d 919, 922[l-3] (Mo.App.1951).

Keeping in mind the limited scope of review imposed upon both the court below and on this court to search the record to ascertain if the Board’s action in denying appellant’s request was based upon substantial and competent evidence, the testimony may be thus summarized:

The area in which this property is located consists of large home tracts and many of the residents keep animals, including horses. Mr. and Mrs. Constantine owned and occupied the property from 1962 to 1971 and sold it to the appellant; they knew there were horses on the property as early as 1946 before they acquired it; and after they acquired the property they kept horses thereon for their own personal, recreational and family use, but did not breed them. Occasionally a mare would foal and they would usually sell the colt but they were not in that business and did not breed horses on the place.

Mr. Anders, who took care of the place and horses for the appellant, testified in some detail as to his activities and duties and that the principal activity on the place was “stock raising”.

The appellant testified that he purchased the property in 1971 for use as a “riding academy” and secured an occupational license for such use. He did not make his home there. He constructed nine additional horse stables on the property. In 1971, there were seven horses there and at the time of his testimony there were fifteen and at times as many as twenty-five. Currently the property is used for horse breeding purposes. He inspected the property 30 days before he purchased it and he observed the property was used for “stabling of horses”. There were three horses on the property at that time.

Each case of this nature usually involves many facets and each differs materially, one from the other. Each must be determined upon its peculiar facts. For those interested many of these cases are collected at Annot., “Zoning: changes, repairs or replacements in continuation of non-conforming use”, 87 A.L.R.2d 4 (1963).

The conclusion is reached that the Board had before it substantial competent evidence to find that the property involved was not used as a horse breeding farm at the time of its annexation in 1957; that horses were kept there only for the resident family’s enjoyment; that appellant changed this use into a commercial venture; that he thus discontinued the preexisting use; and was not entitled to a permit to continue a legal nonconforming use as contemplated in the Zoning Ordinances of Kansas City.

The judgment of the court below upholding the Board’s action is affirmed.

All concur.


text:
    Milton LOEFFLER, Plaintiff-Appellant, v. CITY OF KANSAS CITY, Missouri, Defendant-Respondent.
    No. KCD 28518.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.
    Charles C. Shafer, Jr., Kansas City, for plaintiff-appellant.
    Aaron A. Wilson, City Atty., Carrol C. Kennett, Asst. City Atty., Kansas City, for defendant-respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   TURNAGE, Judge.

Milton Loeffler appeals the refusal of the trial court to grant his petition in the nature of error coram nobis to set aside the dismissal of his action against the City of Kansas City.

On this appeal Loeffler contends the judgment should be set aside because of a mistake in fact as to the true provisions of the statute under which his action was brought. Reversed and remanded.

In 1970, Loeffler brought suit against the City for property damages as a result of riots in the City in April, 1968. His action was based upon §§ 537.130 and 537.140, RSMo 1969. The trial court dismissed the action because § 537.140, as contained in the Revised Statutes, limited liability to cities of the first and second class and Kansas City was a constitutional charter city. The trial court’s dismissal was affirmed by this court in Loeffler v. Kansas City, 485 S.W.2d 633 (Mo.App.1972).

In Protection Mutual Insurance Company v. Kansas City, 504 S.W.2d 127 (Mo.1974) the court considered another action based on §§ 537.130 and 537.140. In that case the City made the same defense, that liability was confined to cities of the first and second class, and Kansas City was a constitutional charter city. However, the court found § 537.140, as originally passed by the Legislature, did not apply to first and second class cities, but applied to all cities of over 25,000 population. The court found the mistake in wording occurred in the publication of the Revised Statutes in 1889. Since the Legislature had not changed the law, but the wording had apparently been changed by the revisor of statutes, the court held the original wording prevailed and liability for property damage resulting from riots existed as to Kansas City.

After the decision in Protection Mutual Insurance Company, supra, Loeffler filed a petition for a writ of error coram nobis to set aside the judgment which denied him recovery because Kansas City was a constitutional charter city and not a city of either the first or second class. The court refused and this appeal follows.

Loeffler contends on this appeal the judgment against him was based on a mistake of fact as to the true provision of § 537.140. The City contends any error was a mistake of law, but even if a mistake of fact, Loef-fler is barred because he knew or should have known of the true wording of the statute when his original suit was brought.

The requirement for relief under a writ of error coram nobis is stated in City of St. Louis v. Franklin Bank, 351 Mo. 688, 706, 173 S.W.2d 837, 846[13—15] (banc 1943). The court there stated the writ lies for errors of fact that would make the judgment erroneous. The court stated:

The facts must be such as affect the power and right of the court to render the particular judgment — facts which, if known, would have prevented its rendition. In a sense they must be directed against what would have been either a want or abuse of jurisdiction — at least, not mere error — if the facts had been known to the court.

The City admits in its brief the court would not have entered the judgment against Loeffler had the true provisions of § 537.140 been brought to its attention. However, the City argues this amounts to a mistake of law as contrasted with a mistake of fact and relies upon Veal v. Leimkuehler, 267 S.W.2d 387 (Mo.App.1954). Leimkueh-ler recognized the requirement of the writ of error coram nobis but said in that case the question of whether or not a board of adjustment had the power to revoke a building permit was a mistake of law. That holding was correct since the question of whether or not the board had the power to revoke a permit called for a construction of the law as contrasted with whether or not the law as printed and relied upon by the parties accurately set forth the law as actually enacted by the legislative body.

The question presented in this case is the existence of the law and not its construction. Whether or not a law exists is a question of fact, and after the fact of its existence is established, then its construction is a question of law. Walsh v. Public Service Company, 92 N.H. 331, 30 A.2d 494, 496[2, 3] (1943). The question here involved the very existence of a statute and its true content, and not its construction. As the City concedes, had the court known the true wording of § 537.140, judgment against Loeffler would never have been entered. It was only the unauthorized change in that Section which led the court to enter its judgment against Loeffler. This was a mistake of fact upon which relief under error coram nobis may be granted.

The City next contends the true wording of § 537.140 was contained in the original roll of this Section in the Secretary of State’s office and Loeffler is charged with constructive knowledge of the accurate wording. For this reason the City argues error coram nobis is not applicable because the rule requires the fact as to which a mistake is made to be either unknown or not discoverable by the exercise of reasonable diligence at or before the trial. This court recognized this part of the rule in Zahorsky v. Zahorsky, 543 S.W.2d 258 (Mo. App.1976).

Section 3.090, RSMo 1969, requires the revisor of statutes to certify that all statutes printed in the Revised Statutes have been examined and compared and the same are true and correct copies thereof as passed and remaining in the office of the Secretary of State. This Section further provides the Revised Statutes shall be pri-ma facie evidence of such statutes. Consistent with that provision, the court held in Protection Mutual Insurance Company, supra, the Revised Statutes are prima facie evidence of such statutes. The court earlier held in Langston v. Canterbury, 173 Mo. 122, 73 S.W. 151 (1903) the verity of the Revised Statutes could not be questioned except in the face of the original documents on file with the Secretary of State.

Section 3.010, RSMo 1969, requires Revised Statutes of Missouri to be printed every ten years. Section 3.080 requires the Secretary of State to deliver to the revisor of statutes the original rolls of all laws of a general nature to use in preparing the ten year editions of the Revised Statutes. The revisor is required to certify, by § 3.090, in each edition of the Revised Statutes that such statutes are true copies of the existing laws of the State.

Loeffler was required to use reasonable diligence to ascertain the law at the time he originally filed his suit. Reasonable diligence embraces such watchfulness, caution and foresight as under all the circumstances would be exercised by a careful and prudent man. Sweeney v. Terminal R. Ass’n of St. Louis, 110 S.W.2d 852, 854[4-7] (Mo.App.1937). In view of the standing which is accorded the Revised Statutes of Missouri, both by law and judicial precedent, it cannot be said that reliance on the laws as printed in the Revised Statutes is a failure to exercise reasonable diligence. This court holds Loeffler did not fail to exercise reasonable diligence to ascertain the law when he relied on § 537.140 as printed in the Revised Statutes for both 1959 and 1969.

Because of the mistake of fact as to the existence of a law imposing liability on the City, the court entered judgment against Loeffler. Now that the existence of a law under which liability may be imposed upon the City has been revealed, it is evident Loeffler is entitled to relief under his petition for writ of error coram nobis.

The City lastly contends Loeffler is not entitled to relief because § 537.140 was repealed by the General Assembly in 1975. This contention was fully considered and decided adverse to the City by this court in Protection Mutual Insurance Company v. Kansas City, 551 S.W.2d 909 (Mo.App.1977).

The judgment is reversed and the cause is remanded with directions to sustain Loef-fler’s petition for writ of error coram nobis and to set aside the judgment dismissing Loeffler’s claim.

All concur.


author: SHANGLER, Presiding Judge.

text:
    Charles CALDERONE, Respondent-Plaintiff, v. ST. JOSEPH LIGHT & POWER COMPANY, Appellant-Defendant.
    No. KCD 28568.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.

      Robert E. Douglass, Wilcox & Houts, St. Joseph, for appellant-defendant.
    Frank K. Nichols, Pope & Nichols, James 0. Turner, Turner & Whetsell, St. Joseph, for respondent-plaintiff.

      Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The plaintiff Calderone had judgment for personal injury from contact with a fallen electric power line owned by the defendant St. Joseph Light and Power Company. The plaintiff submitted his case to the jury on the theory that the defendant negligently failed, within a reasonable time after notice, to turn off the power to an uninsulated 7200 volt transmission line which was down and suspended across an intersection. The defendant submitted the contributory negligence of the plaintiff.

On this appeal the defendant Power Company contends for judgment on the ground that the plaintiff was guilty of contributory negligence as a matter of law, or for a new trial on instruction error.

The evidence shows that in the early morning — about 2:30 to 3:00 o’clock a. m.— Lt. Raymond Baker on night patrol for the office of the Buchanan County Sheriff discovered that a car had struck and shorn a utility pole on the northwest corner of Highway 169 and Route FF. He found the car in the ditch thereby and the occupants injured, on the ground.

At this intersection Highway 169 goes east and west and Route FF runs north and south. Route FF does not extend through Highway 169 but is continued north by a gravel road designated South E. Lt. Baker discovered that the top of the utility pole had fallen and that broken wires were strewn on the ground. One wire on that pole remained unbroken and suspended from a crossarm diagonally to an undamaged pole on the southeast corner of the intersection. The unbroken wire was uninsulated and carried 7200 volts. It suspended about two feet above the ground on the edge of the north shoulder of Highway 169, but rose sharply to the pole on the southeast corner of the intersection. That means' that although traffic eastbound on Highway 169 was not impeded, the suspended wire interfered with the movement of westbound vehicles.

Lt. Baker positioned his car in the westbound lane of U.S. 169 to face south down Route FF. The headlights of his car, which were turned on, did not illuminate the suspended wire. He reported the casualty by radio to dispatcher Houghton at the county office and requested him to call an ambulance, notify the Power Company and the Highway Patrol.

It was the testimony of dispatcher Houghton that in response to the call from Lt. Baker he notified the Missouri Highway Patrol of the accident at 2:42 o’clock that morning, called for an ambulance to the scene at 2:48 a. m., and then notified the Power Company at 2:56 a. m. that a pole was down at the intersection of Highway 169 and Route FF. No other inquiry or information passed during the conversation with the Power Company employee.

Another witness for the plaintiff, Chester Jones, was on duty for the defendant Power Company on the day of the event. He received two trouble calls by telephone that morning. The first came around 2:45 a. m. from a party who reported that the lights were out in the vicinity of Agency, Missouri. The second call came about five minutes later, either from the Missouri Highway Patrol or the Sheriff, that a utility pole and line were down on Highway 169. Jones called Cotton, the troubleman, to make the repairs. Cotton drove to the Power Company garage, picked up the company truck and drove to the accident scene.

Ed Swearinger, load dispatcher from the Power Company, was called as a witness for the plaintiff. From his office he controlled the power to eight sub-stations in the area. He testified that he received two telephone calls from the Missouri State Highway Patrol. The first call — before 3:00 a. m. — informed him that a pole had been broken at Highway 169 and Route FF and requested that a repairman be sent to the scene. He thereupon called Pettit, another trouble-man, to investigate the difficulty. Pettit went to the Power Company garage for a truck and, in coordination with Cotton in the other truck, undertook to investigate the trouble. It is clear that at all times after Cotton and Pettit mounted their trucks each was in radio communication with the other and with Swearinger.

The second telephone call from the Highway Patrol informed Swearinger that a man at the accident scene had been burned by the fallen wire. He did not then de-en-ergize that line. Swearinger testified it would have taken him from five to fifteen seconds to cut off the electrical current to the wires at the accident scene by the operation of two buttons within the room of his location, but he did not do so. Nor did he make inquiry during conversations with the Highway Patrol of the particular circumstances of the downed pole and lines. He did not shut off the current to the suspended line because to do so would be to deprive the entire area served by the Ajax substation of power. Swearinger had instructions that in an emergency of this nature the repairman was to investigate the trouble.

This testimony, taken with the evidence of troubleman Pettit and engineer Horn, discloses that the downed lines were on one of the four circuits which carry power from the Ajax substation to the surrounding community. Each circuit feeds a different area. The substation serves about 3500 customers in all. The power to Ajax is received from one 33,000 volt transmission line. It was this main line which Swearing-er controlled and could have cut off by manipulation of selector buttons. Had he done so, troubleman Pettit could then have closed the circuit at Ajax which fed the broken line at the accident scene, then called Swearinger to reactivate the main transmission line into Ajax, and thereby returned full power to the other three circuits with only that interruption of service. That procedure would have meant that the only line to remain without power would have been the line by which plaintiff was injured.

As to the incidence of the injury, the evidence was that plaintiff Calderone was an ambulance attendant and had been dispatched to the scene of the accident along with the driver. Baker testified that when the ambulance arrived at the scene he motioned for the vehicle to stop at a point west of the suspended wire. The driver [Reynolds] left the ambulance and walked over to Baker. Then the attendant [Calder-one] got out of the ambulance, walked around the rear of the vehicle, and up to Baker and Reynolds. Baker testified that he told the driver about the suspended wire, flashed his light on it, and warned him that the line might be live. He directed the driver to take the ambulance east, under the wire, and then go north on to Route South 4E for safe access to the injured persons lying in the ditch. After the driver began to move the ambulance as directed, Lt. Baker told the plaintiff, then next to him on the north side of the highway west of the suspended wire that the line might be live and played his flashlight on it. Baker then walked away to the center of the highway. The ambulance went under the wire. As it did the antenna struck the suspended wire and “popped” amidst a shower of sparks. [It was'then for the first time that Baker actually knew the wire was still live.] At the same time that Baker glanced to his left, saw plaintiff take two or three steps, and walk into the suspended wire. Baker testified that he and Trooper Noyes shouted “not to move, the line was hot”. According to Baker, it was only a matter of a few seconds from when the antenna struck the wire, the shouted warning by the officers, and the movement of the plaintiff into the wire, Baker — then only four feet away — saw Calderone burn in a halo of sparks and fire.

Trooper Noyes of the Missouri Highway Patrol was also at the scene. In response to a call he arrived at about 3:00 a. m. He also saw the ambulance antenna strike the suspended wire as the vehicle moved from the west side to the east side of the wire. He saw the plaintiff walk towards the wire and while Calderone was still six to ten feet from the wire shouted a warning to him from about twenty feet away. However, the plaintiff continued to walk into the wire and struck it at about eyebrow level. Noyes testified that only a few seconds elapsed between his warning and the casualty.

Claude Herrin, a witness for defendant, had come upon the scene and recognized Lt. Baker, who was then standing by his patrol car on the east side of the suspended wire. So he crossed over the highway to him. As he recalled the incident from that coign of vantage — some eight feet from the wire— when the ambulance arrived at the scene it did not stop, and Calderone did not emerge, until after it had driven under the wire and pulled up next to the police car on the east side of the suspension. He saw the ambulance antenna strike the wire as it moved from west to east. After the ambulance stopped, Calderone stepped out, presumably to guide the driver to the injured persons. As he did so, he walked back west under the suspended wire — at that point some twelve feet above the ground, then, with his hands in pocket, moved towards the north side of the highway where the live wire slackened closer to the pavement and walked directly into it. When the plaintiff Calderone was one or two steps from the wire, Herrin and Baker shouted a simultaneous warning, but Calderone continued on his path and the casualty ensued. Herrin testified that no one at the scene spoke with anyone in the ambulance before the antenna of that vehicle struck the wire.

Ambulance driver Reynolds also testified for defendant. At his arrival he was stopped west of the strewn wires by a man who beckoned with a flashlight. Reynolds stepped out of the ambulance and could see wires on the ground. The man with the flashlight [presumably Baker] indicated the ear in the ditch and warned him to drive with care because wires were down. Reynolds re-entered the ambulance and told attendant Calderone not to emerge until they had gotten through the field of fallen wires. As they drove, the antenna of the ambulance caught a wire momentarily. When they had driven through, attendant Calder-one got out of the ambulance and went towards its rear to the south. Reynolds testified that as soon as Calderone left the ambulance, he heard a shout: “Get back in your car” and an instant later, “Your attendant’s dead”. It was his testimony that, although he was warned that wires were down on the highway, neither he nor Cal-derone was warned of any wires suspended above them. Reynolds testified that contact of the antenna with the strung wire, the emergence of the attendant from the ambulance, and the shouted warning was an essentially simultaneous sequence.

On his own behalf Calderone testified that when the ambulance arrived at the scene, Reynolds stopped the vehicle, left it, and walked towards a police car parked on the side of Highway 169. There he spoke with someone. Calderone then left the ambulance and walked toward the rear of the vehicle to examine the wreck for injuries. He was unable to remember anything further. He did not remember that anyone at the scene said anything to him, nor particularly that Lt. Baker told him that a utility wire was suspended above the highway or that the officer illuminated the wire for him with his flashlight. He saw neither the wires on the ground or above him, nor realized that the ambulance antenna had struck the wire overheard.

The first point contends that the plaintiff knew of the wire and the danger it posed but that he nevertheless moved into it to his injury and so was contributorily negligent as a matter of law. Accordingly, defendant contends the denial of the motion for directed verdict was error.

The law requires those who generate and transmit electricity to use the highest degree of care to prevent injury which can be reasonably anticipated. Erbes v. Union Electric Co., 353 S.W.2d 659, 664[1] (Mo.1962). The defendant Power Company does not contend that the plaintiff has not proved a breach of that duty to him. Indeed, the evidence for plaintiff by Swear-inger, load dispatcher for the defendant, that he had it within his power by the manipulation of selector buttons to discontinue the deadly current to the live wire suspended over the highway within fifteen seconds after notice but — for reasons of his own — failed to do so, proves a jury issue on the negligent causation of a foreseeable injury. Kidd v. Kansas City Light & Power Co., 239 S.W. 584, 586[1, 2] (Mo.App.1922); Tellis v. Union Electric Co., 536 S.W.2d 742, 745[2, 3] (Mo.App.1976). Rather, the defendant argues that the conscious movement of the plaintiff into the suspended wire after knowledge that it was charged and dangerous constitutes his contributory negligence as a matter of law.

In the law of electricity contributory negligence remains an issue for the jury unless reasonable men, on a view of the evidence most favorably to the plaintiff, cannot differ on the conclusion that the plaintiff failed to use ordinary care for his own safety commensurate with the danger to be avoided. Losh v. Ozark Border Electric Cooperative, 330 S.W.2d 847, 851[3, 5] (Mo.1960); Tellis v. Union Electric Company, supra, l.c. 747[6]. In the circumstances of this case, the contention of contributory negligence must be determined by whether the evidence shows conclusively to any reasonable man — that is, as a matter of law— that Calderone moved into a known danger and so assumed the risk of injury.

The Power Company fashions this argument on the' evidence of the several witnesses, Baker [for the plaintiff] and Noyes and Herrin [for the defendant] that they warned Calderone of the impending danger of his continued movement in the direction of the live wire but that Calderone took no heed. Although the defendant does not differentiate the evidence on this claim of contributory negligence, the reference intends to recall the testimony of Trooper Noyes [for the defendant] that he had shouted a warning to Calderone when he was six to ten feet from the wire, the testimony of Herrin [for the defendant] that his warning — shouted simultaneously with Noyes and Baker — was given when Calderone was a step or two from the wire, and the testimony of Lt. Baker [for the plaintiff] that he had initially warned Cal-derone the wire might be live when the ambulance first arrived, and after contact of the antenna with the overhead wire confirmed that surmise, his warning shouted with Trooper Noyes when Calderone was two or three steps from the wire.

The plaintiff responds that the defendant may not have the benefit of all this evidence because the testimony of Baker [received as a witness for the plaintiff] in respects contradicts the testimony of Noyes and Herrin [received as witnesses for the defendant]. More specifically, the plaintiff contends the Baker testimony that he descried the path of the suspended wire for Calderone by his flashlight and warned him the wire might be live was directly contradicted by the Power Company testimony from ambulance-driver Reynolds and Her-rin that Baker had no conversation at all with Calderone, and so cannot bear on the issue of contributory negligence.

As will appear, these contentions are all but academic. On any valid view of the evidence, the contributory negligence of the plaintiff was for the jury.

The law of negligence precludes a plaintiff from recovery on either of two independent grounds: that his own evidence conclusively shows contributory negligence or because the defendant has proved the issue as an affirmative defense. Thompson v. Byers Transportation Company, 362 Mo. 42, 239 S.W.2d 498, 499[1-4] (1951). The burden rests on the defendant to prove the affirmative defense of contributory negligence. The defendant has no burden, however, as to the plaintiff’s case, and where that evidence establishes contributory negligence as a matter of law, recovery is defeated [with few exceptions], not by any intendment given defendant’s evidence, but by the force of the plaintiff’s case alone. Slates v. Joplin Butane Gas Co., 315 S.W.2d 808, 813[1, 2] (Mo.1958); Beaver v. Wilhelm, 321 S.W.2d 1, 2[1] (Mo.App.1959).

To meet the burden of proof on the affirmative defense of contributory negligence, the defendant may have the benefit of its own evidence or that given by the plaintiff favorable to defendant. That rule is subject to the qualification that, for that purpose, a party may not use the evidence of his adversary which contradicts his own proof and theory of the case. Picarella v. Great Atlantic & Pacific Tea Company, 316 S.W.2d 642, 649[8—18] (Mo.App.1958); Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600, 603[7-8] (1934).

The defendant Power Company — however diffuse the statement — argues that the evidence proves each separate ground of contributory negligence as a matter of law. The argument asserts that the testimony of Lt. Baker, unmodified by any other plaintiff witness, that he had warned Calderone the suspended wire posed a hazard conclusively proves the injury resulted from failure by plaintiff to observe ordinary care for his own safety. The argument further asserts that the evidence of the witnesses Herrin and Noyes [for the defendant] and Baker [for plaintiff] that Calderone moved into the wire after they had shouted warning to him conclusively proved the affirmative defense of contributory negligence. We do not find, as plaintiff suggests, that defendant has mingled impermissible inferences or contradictory evidence to support these contentions.

The contention that plaintiff proved himself guilty of contributory negligence as a matter of law rests altogether on this fragment of the testimony whereby Lt. Baker related, first to ambulance-driver Reynolds and then to attendant Calderone, the condition of the wires:

Q. Now, what happened at that point then?
A. [By Lt. Baker] At that time, I told him [driver Reynolds] about this line
Q. So then what happened?
A.I told the ambulance driver about the line. I told him where to pull his ambulance. After he had told the man [Calderone] that he would see him over on the road, for him to go on over there, then that’s when I explained to the attendant about the line stretched across the highway. I shined my flashlight up and down it and explained that it may be hot.
Q. Why did you use the flashlight?
A. Well, it was dark; you couldn’t see without it.

If we exclude the testimony by Herrin and Reynolds for the defendant that Baker gave no such advice, as contradictory to the evidence and theory advanced by plaintiff [Picarella v. Great Atlantic & Pacific Tea Company, supra, l.c. 649], this narrative by Baker taken with the other circumstances of the case, does not establish that the plaintiff has proved himself out of court.

The law expects a person, of full capacity, to use ordinary care for his own safety to avoid a known danger. Tellis v. Union Electric Company, supra, l.c. 746[5]; 57 Am.Jur.2d Negligence, § 317. It does not always follow from the proof of a hazardous physical condition, however, that the plaintiff appreciated the danger to which he was exposed. It is the voluntary exposure to a hazard known and appreciated which bars recovery to a plaintiff. Bartlett v. Taylor, 351 Mo. 1060, 174 S.W.2d 844, 850[8-12] (1943); Tellis v. Union Electric Company, supra, l.c. 746[6].

The full evidence given by Lt. Baker places the extract upon which defendant relies into a more complete perspective. At the time the ambulance arrived at the scene, the intersection was in total darkness. Also, a rain continued to fall. None of the wires was visible without other illumination. The headlights of the police vehicles and of the on-lookers gathered there gave some light, but not on the scene. The suspended line formed an imperfect arc above the intersection, and from a nadir some two feet off the ground near the northwest corner [where the injured persons lay] rose sharply to the pole at the southeast corner. The suspended wire was sufficiently elevated at the southeast of the intersection to allow the ambulance [except for the antenna] to clear it. All of these facts appear in the full testimony of Lt. Baker. The excerpt of his testimony that he had advised ambulance-driver Reynolds and attendant Calderone of a safe passage under the wire and that he described the contour of the suspended line to them by flashlight, relates occurrences immediately before the vehicle was moved east under the suspension. This testimony, aided by the non-contradictory testimony of defendant witness Reynolds — to which the plaintiff is clearly entitled on the issue of his contributory negligence [Slates v. Joplin Butane Gas, supra, l.c. 812[1, 2] ] — that the line above could not be clearly seen even with the light upon it, raises a number of inferences favorable to the Calderone recovery. A jury could have, reasonably believed that the warning given the plaintiff and his driver had to do only with the passage of the vehicle under the wire and that Baker by his flashlight described only that portion of the wire which overhung the path of the vehicle. A jury could have believed that under those conditions of climate and darkness the course of the suspended wire could not be seen definitely even by flashlight. From these facts the jury could have inferred that Calderone reasonably believed the overhang came no closer to the ground above the intersection than where the ambulance had driven through — a place of sufficient clearance to allow a man to pass under safely.

Nor does the evidence establish the affirmative defense of contributory negligence as a matter of law. For this proposition the defendant Power Company argues the shouted warning by Baker, Noyes and Herrin to Calderone who was then afoot towards the injured persons in the direction of the wire which there suspended about two feet above the ground. It was the testimony of these witnesses that they shouted in virtual unison a warning to Cal-derone not to move because the line was live. The testimony of these witnesses was not altogether uniform, however, as to how far Calderone was from the wire when the warning issued. Herrin for the defendant gave that distance as one or two steps; Noyes for the defendant as six to ten feet, and Baker for the plaintiff as two or three steps. Baker estimated that a few seconds elapsed between the first spoken warning to Reynolds and Calderone, the second shouted warning, and the injury. Noyes thought a few seconds passed from his shout and the injury. Herrin gave no estimate.

It is evident that these proofs raise a jury issue as to whether the warnings issued in sufficient time to be heeded. The testimony of defendant witness Herrin that Calderone was one or two steps from the wire when the warning was shouted could mean to reasonable minds that it came in the very act of injury, and so too late. The rule which precludes one party from the benefit of the contradictory evidence of the other does not apply to estimates, such as of time and distance, which are not meant as positive statements of fact based on knowledge, but rather merely as opinions. Burris v. Kansas City Public Service Co., 226 S.W.2d 743, 747[1-4] (Mo.App.1950). Accordingly, defendant may rely on the testimony of Baker for his contributory negligence contention to the extent that his estimates are of advantage, but they are of no significant help. The testimony of defendant witness Herrin allows the inference that the injury almost immediately followed the warning. It cannot be said on this evidence that reasonable minds would agree that Calderone voluntarily and unnecessarily assumed a position of danger with knowledge and appreciation of the risk his conduct entailed.

The precedents defendant cites to support the point are not analogous on the evidence. They are of that ilk which deny recovery because the plaintiff has exposed himself to dangerous wires, unobstructed to the view, with knowledge and appreciation of the obvious hazard. Thus, in Tellis v. Union Electric Co., 536 S.W.2d 742 (Mo.App.1976) plaintiff operated a boom into an overhead live wire in broad daylight. In Hamilton v. Laclede Electric Co-op, 294 S.W.2d 11 (Mo.1956) the plaintiff raised a water pump assembly into a high tension wire which was in plain view. Each was determined to be contributorily negligent as a matter of law. A case which more nearly resembles the facts we confront is Kidd v. Kansas City Light & Power Co., 239 S.W. 584 (Mo.App.1922). A transmission line of the defendant Power Company in a residential area was broken by a fallen tree and grounded. This defect was immediately and automatically registered by instrument at the office of the defendant where the operator had it within his means to instantly shut off the current on the defective circuit. Instead of resort to that procedure, the defendant sent a man to repair the break. The live wire thus lay on the street for about an hour. Some boys in the neighborhood began to play with it, and the plaintiff — unaware that it was charged— picked up the exposed end and was injured. The defendant Power and Light Company contends the plaintiff was guilty of contributory negligence as a matter of law because the other boys warned him the wire was live and not to touch it. There was evidence, however, that the warning first came as he was in the very act of snatching the wire. Thus, the question of timely warning — and contributory negligence— was for the jury. These contentions of the defendant are overruled.

The last point of defendant Power Company asserts prejudicial instruction error. The plaintiff submitted his theory of recovery by Instruction No. 4, a modification of MAI 22.02 — Dangerous Condition Near Public Thoroughfare:

Your verdict must be for the plaintiff if you believe:

First, one of defendant’s transmission lines was down and
Second, that said downed transmission line was uninsulated, and
Third, defendant was notified of such downed uninsulated transmission line, and
Fourth, defendant could reasonably anticipate that others may lawfully come into close proximity to such downed uninsulated transmission line, and such persons in the exercise of ordinary care were exposed to a danger of electrical shock, and
Fifth, defendant knew or should have known of such danger, and
Sixth, defendant failed to use the highest degree of care by failing within a reasonable time after notice to turn off the power to the downed uninsulated transmission line, and
Seventh, as a direct result of such failure plaintiff was injured unless you believe plaintiff is not entitled to recover by reason of Instruction No. 7.

The defendant does not suggest that the plaintiff submitted on an improper adaptation of an MAI model, but only that the formulation was incomplete. The defendant cavils because the instruction did not say how the dangerous condition of the wire could have been made safe, except to turn off the power to the transmission line. The defendant argues, in effect, that circumstances could arise where reasonable prudence would dictate a different course to protect from injury than merely to cut off the current from an endangered line— such as by barricade, sign, or other notice. The defendant argues these premises from two foreign authorities [Osborne v. Tennessee Electric Power Co., 158 Tenn. 278, 12 S.W.2d 947 (1929) and Pennebaker v. San Joaquin Light & Power Co., 158 Cal. 579, 112 P. 459 (bank 1910)]. The sense of these authorities is that to shut off the lights of a city is a serious matter and the damage which results may far exceed the injury the discontinuance of power was meant to prevent.

There can be no doubt that the law does not require a supplier of electricity to insure the public safety but is liable only for negligence. Donovan v. Union Electric Company, 454 S.W.2d 623, 626[2, 3] (Mo.App.1970). The law does require such an enterprise to exercise the highest degree of care to prevent injury reasonably foreseeable. Erbes v. Union Electric Co., 353 S.W.2d 659, 663[1] (Mo.1962). And when the evidence shows — in this case — that the Power Company was made aware that its uninsulated transmission line was near the ground above a public highway, liability is made out when the jury finds that the Power Company could reasonably anticipate injury to persons nearby, but failed its duty of care. These were the propositions submitted by paragraphs first through fifth of Instruction No. 4. The defendant takes issue with paragraph sixth, which submits the essential element of breach of duty by the finding that the Power Company failed to turn off the power to the live wire within a reasonable time after notice of the condition. The defendant finds fault because that proposition does not offer the jury an alternative, and less drastic, course of conduct whereby to acquit its duty of reasonable care — as, for instance, by a barricade of the wire.

It may be that in a given case more injury would be caused than prevented by the curtailment of electrical power, and reasonable prudence would prompt a different course. That is not this case. Here there was proof that defendant had the means within fifteen seconds after notice to cut off the flow of energy to the suspended line, but failed to do so. That was the theory of recovery submitted by Instruction No. 4. The submission followed the evidence as indeed an instruction must before a jury may find the issue, and the return of verdict was on the proof of that submission. Brassfield v. Sears, 421 S.W.2d 321, 323[1,2] (Mo.1967).

The argument of the Power Company that Instruction No. 4 should have submitted also alternative courses of reasonable conduct which defendant could have taken to prevent injury after notice of the danger presented by its instrumentality undermines the fundamental doctrine of advocacy that a party has no duty of evidence on matters that do not bear on his theory of recovery. The procedures of MAI allow an adversary in a negligence case to exculpate a contention of fault against him in the verdict-director by a converse instruction. It was open to the Power Company merely to converse paragraph sixth of Instruction No. 4, which submitted that defendant failed to use the highest degree of care by failure within a reasonable time after notice to cut off the power to the suspended line. It was also open to the Power Company to submit an affirmative converse in the manner allowed by MAI 33.01 (Third Method) based upon independent evidence of the defendant that it had taken reasonable action — other than total curtailment of power — to prevent the injury. Wilson v. Checker Cab, 431 S.W.2d 122, 123 (Mo.1968). In fact, the Power Company attempted to justify its failure to discontinue the electric current after notice that the line was down above the intersection by the testimony of load-dispatcher Swearinger at the Ajax substation that he did not shut off the circuit which fed that line because a hospital, nursing home and other facilities in the area would be deprived of power. Had this evidence stood, it would have supported an affirmative converse of paragraph sixth of Instruction No. 4. Other evidence by the defendant was, however, that with trouble-men Pettit and Cotton in radio communication with Swearinger, had the direction been given a simple procedure among them would have restored power to all the lines in the area except for the suspended wire before the occurrence of the injury, but that direction never issued. In any event, the effect of this evidence was all but nullified because the Power Company in fact did turn off the power after Calderone was injured. It is the sense of the argument now made by the Power Company that Calderone should have proved for the defendant what the defendant could not prove for itself — that the Power Company could have reasonably avoided injury to Calder-one by a method other than the discontinuance of the electricity.

The final point contends Instruction No. 4 was erroneous because the jury was not required to find that the failure to turn off the power to the uninsulated line was negligence. If an instruction requires the jury to find propositions which, if true, establish that defendant was negligent per se, or as a matter of law, then the instruction is valid without the additional requirement that the propositions, if found, constitute negligence. In such case the law draws the conclusion, for if the jury find them no other result than negligence could be found. Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914, 919[4, 5] (1942); Haley v. Edwards, 276 S.W.2d 153, 162[4] (Mo.1955); Courtney v. City of Ferguson, 401 S.W.2d 172, 174[1] (Mo.App.1966).

The facts of the case at bench, as we have noticed, are analogous to those which determined Kidd v. Kansas City Light and Power Company, supra. That court found the defendant Power Company, which had become aware that a transmission line was broken and grounded in a residential area but failed to make the condition safe, guilty of negligence per se. That rationale applies as well to the danger from an exposed high voltage wire suspended above a public highway as to impede the safe passage of traffic, a condition known to the Company but which the defendant did not undertake to correct. The jury return for plaintiff on the propositions of Instruction No. 4 was equivalent to a determination that defendant was negligent.

The judgment is affirmed.

All concur.


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    Linda K. WEBER et al., Plaintiffs-Appellants, v. The LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri et al., Defendants-Respondents.
    No. 28599.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.
    Doyle R. Pryor, Gant, Jolley, Moran, Walsh, Hager & Gordon, Kansas City, for plaintiffs-appellants.
    Rick V. Morris, Acting Chief Counsel, William W. Clinkenbeard, Counsel, Div. of Emp. Security, Jefferson City, Don J. Chat-field, Counsel, Labor & Indus. Rel. Com., Jefferson City, for defendants-respondents.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   TURNAGE, Judge.

Linda Weber, Pamela Hill, Linda Williams and Karen Witten made claim for unemployment benefits. Their claim was denied by the deputy, the appeals referee and the Commission. Their appeal to the circuit court likewise failed to gain any relief and they have now appealed to this court.

Weber and her fellow employees contend in this court the finding of the appeals referee, which was adopted by the decision of the Labor and Industrial Relations Commission, is erroneous because they had good cause for withholding their services. Affirmed.

Weber and the others were employed by The Edison Credit Union. The Credit Union had its office in a building occupied by The Kansas City Power and Light Company. There was no connection between the Credit Union and the Power and Light Company, and Weber and the three other employees of the Credit Union were in no way employed by the Power and Light Company.

On July 9, 1974, when Weber and the other claimants reported for work they found employees of the Power and Light Company were on strike with pickets stationed at the building where the Credit Union was located. Weber testified she refused to cross the picket line and for that reason did not report to her office to perform her normal duties.

In addition to the four claimants involved here, the Credit Union was operated by a secretary-treasurer who was not a member of the union. The secretary-treasurer crossed the picket line to perform necessary duties in the office, but also made himself available on the lawn and in his car outside the plant in order to transact business with Power and Light employees without the necessity of their crossing the picket line.

Weber testified she never talked with the secretary-treasurer who was in charge of the Credit Union office when she reported for work on July 9 even though she saw him conducting Credit Union business outside the plant. The strike continued for 83 days, but none of the claimants ever talked with the secretary-treasurer during that time about any duties they were to perform or where they might perform such duties during the strike.

The only evidence concerning conduct of the Credit Union business during a strike by Power and Light employees was a conversation about a week before the strike here involved began. At that time Weber stated the secretary-treasurer said the conduct of the Credit Union’s business during the anticipated strike, which later materialized on July 9, would depend upon the girls, meaning the claimants herein. At that time Weber said the girls, were not going to work as they did during the last strike when the girls only worked half time. Weber took the position the labor agreement between the four girls in the office and the Credit Union required the layoff of those employees with the least seniority and required the needed employees to work full time. She reported the secretary-treasurer stated none of the girls would receive unemployment compensation, and with that the conversation ended.

The deputy found Weber and the others were ineligible for waiting week credit or benefits under § 288.040-5, RSMo 1969, which provides for ineligibility when unemployment is due to stoppage of work because of a labor dispute. The appeals referee found the ineligibility was because of § 288.040-1(2), RSMo 1969. The appeals referee found Weber and the others ineligible because, as shown by their own evidence, they were not available for work.

Review of a decision by the Labor and Industrial Relations Commission is upon both the facts and the law, but as to questions of fact the review is limited to a determination of whether upon the whole record, including reasonable inferences, the award is supported by competent and substantial evidence, and absent fraud, the findings are conclusive. Von Hoffman Press, Inc. v. Industrial Commission, 478 S.W.2d 403, 404[1, 2] (Mo.App.1972).

It is well settled the burden of proof to establish a claimant’s right to benefits under the Unemployment Compensation Act is upon the plaintiff and the claimant assumes the risk of non-persuasion. Haynes v. Unemployment Compensation Commission, 353 Mo. 540, 183 S.W.2d 77, 80[1] (1944).

In this case the Commission found Weber and her fellow employees were ineligible because they were unavailable for work within the meaning of § 288.040-1(2). Section 288.040-1(1-2) provides:

1. A claimant who is unemployed and has been determined to be an insured worker shall be eligible for benefits for any week only if the deputy finds that
(1) He has registered for work at and thereafter has continued to report at an employment office in accordance with such regulations as the division may prescribe;
(2) He is able to work and is available for work; provided, however, that no person shall be deemed available for work unless he has been and is actively and earnestly seeking work;

The burden was upon Weber and the others to establish that they were actively and earnestly seeking work. The only evidence bearing on this issue came from Weber and indicated Weber and the others were not only not seeking work anywhere else, but were refusing to report for work with the Credit Union.

They made no attempt to contact their supervisor to receive instructions as to when and where to work even though they saw their supervisor actively carrying on the business of the Credit Union outside the picket lines. The claimant’s evidence wholly fails to show that they made any effort to actively or earnestly seek work from any employer, including their own.

Weber asserts on this appeal the reason no attempt was made to report for work at the Credit Union was because of the violation by the Credit Union of the Collective Bargaining Agreement which required the lowest seniority employees to be laid off when there was insufficient work to occupy all the employees. Whatever the significance of the violation of this Agreement may be, still Weber and the other claimants were required to comply with the provisions of § 288.040-1(2) to actively and earnestly seek employment. Thus, if Weber and the others felt the Credit Union had violated their agreement, they were required to seek employment from other employers in order to qualify for unemployment benefits. Their evidence shows they failed to do this and the finding by the Commission that all four employees were not available for work is supported by substantial evidence.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Herman D. FULSOM, Appellant.
    No. KCD 28718.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.

      Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFPORD, C. J., PRITCHARD, P. J., and DIXON, J.
   PRITCHARD, Presiding Judge.

Appellant, found to be a second offender, was sentenced by the court to 10 years imprisonment in the Department of Corrections, upon his finding of guilt by a jury of burglarizing Peterson Prescription Center, 4900 Swope Parkway, Kansas City, Missouri.

Three points, not raised in the motion for new trial, involving federally protected, constitutional rights, will nonetheless be considered.

The first point is that the trial court erred in overruling appellant’s motion to suspend the [trial] proceedings so that he could be examined mentally under § 552.-020, RSMo 1969, “insofar as such failure denied appellant a determination of his competency to proceed and violated his due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution.” The matter came up in this way: The trial began February 4, 1976, with appellant and his counsel present with a jury. Preliminary instructions were given and one witness gave testimony prior to the noon recess, at which time counsel told appellant he would see him at 1:30 p. m. Appellant had been late that morning and the court had admonished him not to be late again. Appellant did not appear at 1:30 p. m. A recess was taken after which appellant had not appeared, and court was adjourned until 9:30 a. m. the following morning, at which time appellant again failed to appear. After the previous noon recess appellant’s counsel told the court, “Well, the only reason that I can think of that he’s not here is because he felt that he was going to be convicted and wanted to avoid prosecution.” The next morning, in appellants absence, counsel stated that there had been no waiver of appellant’s right to confrontation; there had been no disruptive behavior on his behalf; and that there was no concession that his absence was due to inattention, or was either voluntarily or intentionally done. Counsel then moved the court to suspend the proceedings, “so that the defendant may be mentally examined by competent physicians, because during the course of these proceedings the defendant has acted irrationally, and has, in effect, appeared incompetent to reason in connection with these proceedings. To illustrate this, the defendant was unable to come to any decision as to whether or not it was in his better interest to plead on the charge, or to go to trial. He could not adequately or effectively assist his counsel in any manner.” [Paradoxically, counsel stated also: “Further, the defendant was in the process of giving defense counsel valuable information, regarding the circumstances surrounding his arrest and apprehension inside of the Peterson’s Prescription Center, at 4900 Swope Parkway, immediately preceding trial. It was anticipated by defense counsel that he would also be available to give further assistance to counsel, during the course of the trial.”] A written motion for mental examination was subsequently filed, and was overruled.

The conclusory statements of appellant’s counsel, not only being contradictory as above noted, do not prove themselves. What is determinative of the issue of appellant’s competency to proceed with trial is the trial court’s observation of him and its appraisal of his mental state. In this connection, the court stated, “Now, in this matter there was an aborted guilty plea, at which time it was obvious to all concerned that the defendant had no mental problems. There was no request by counsel for defendant, after representing this defendant for a long period of time, and after having represented him at an aborted guilty plea, and after representing him during voir dire, at which time the Court observed the defendant apparently intelligently cooperating with his counsel, and the Court is not aware of any development regarding the defendant since that time, and can only conclude that the motion for mental examination is a matter of strategy, rather than an actual desire to have the mental examination, because there have been no developments that could have occurred in the interim.”

Other than counsel’s statements, conclusions and the written motion for mental examination, none of which, as noted, prove themselves, nothing was presented to the trial court by way of facts which would tend to establish a reasonable cause to believe that appellant had a mental disease or defect excluding fitness to proceed under § 552.020, at the time the motions were presented, February 4, 1976. Indeed, the court’s observations, supra, indicate that appellant had no disease or defect affecting his ability to cooperate with counsel in proceeding with trial. For a statement as to the deference to be accorded the trial court in its observations of a person’s mental capacity to proceed, see State v. Rand, 496 S.W.2d 30, 38 (Mo.App.1973), a ease where, as here, the defendant sought to present the issue of mental unfitness to proceed to trial after it had started.

Further revealing on the issue is appellant’s trial counsel’s testimony on the hearing upon the motion for new trial: During his representation of appellant, he had no occasion to discuss with him his defenses under Chapter 552. Although he knew appellant was receiving methadone as a substitute for heroin, counsel formed no opinion that because of his drug habits he did not understand his rights. On the day prior to trial when counsel tried to plead appellant guilty, he believed that he knew what was taking place. On the day of trial, there were indications that appellant, as a result of previous plea negotiations, “didn’t know a good deal when he saw one” but that did not cause counsel to presume that made him incompetent. He could not tell by his demeanor that appellant was then under the influence of drugs — he did not appear to be. Appellant seemed to counsel that he understood what was going on. The motion for mental examination filed by counsel was on the basis that appellant did not appear after the noon recess, and on February 5, 1976, that he did not appear to appreciate the plea offers made, on the basis that he had a drug habit, and the fact that there may have been a possibility that a mental problem existed. There was nothing presented to the trial court to cause it to believe that good cause existed to permit the defense to be raised at the beginning of trial, thus in effect waiving the 10-day notice of the defense required by § 552.030(2). Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), relied upon by appellant, is distinguishable by the existence therein of facts creating a reasonable doubt as to defendant’s competency to stand trial. The trial court did not err in overruling the motion for mental examination.

By Point II, appellant contends that the trial court committed reversible error in proceeding to trial in appellant’s absence, in violation of his Sixth Amendment rights to confront witnesses against him, and to have effective assistance of counsel. Where a criminal defendant voluntarily absents himself during the course of the proceedings, he is held to have waived his constitutional and statutory right to be present. State v. McCrary, 287 S.W.2d 785, 787 (Mo.1956). In State v. Whites, 538 S.W.2d 70, 73 (Mo.App.1976), it was said that when a defendant is free on bond (as here) and does not appear at the time specified, it is presumed, until established otherwise, that his absence is voluntary for the purpose of deciding whether he has waived his right to be present at trial. The only explanation came from appellant in testifying during the hearing on the motion for new trial. Appellant claimed that his failure to return to trial resulted from an overdose of methadone which he had taken the previous night; that he regained consciousness on the evening of February 5, 1976, and was then informed by his mother that the trial had already ended, and he was unable then to reach his attorney; he admitted expressly denying to the court on appearing for trial or a plea February 4, 1976, that he was under the influence of drugs. He did not ever contact his attorney after February 5th. [His attorney saw him only after his arrest about a month later when he was in jail and when counsel was there to see another client.] The trial court was not bound to accept appellant’s version as to the reason for his absence, especially in view of his conflicting testimony. The trial court, under this record, did not err in proceeding to trial in appellant’s absence.

By his last point, appellant contends that it was error to allow a police officer to identify a photographic “mug shot” because it suggested that he had a prior criminal record. The officer testified that the photograph was taken on the same day appellant was arrested, so by no implication could it suggest a prior criminal record. See State v. Poor, 533 S.W.2d 245, 250-251 (Mo.App.1976), which controls the point. The other portion of the last point is that appellant was denied confrontation of the witness, but that contention is ruled by his waiver of the same by his voluntary absence from trial.

The judgment is affirmed.

All concur.