author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE ex rel. STEAK n SHAKE, INC., a corporation, Appellant, v. CITY OF RICHMOND HEIGHTS, Missouri, a Municipal Corporation, Richard F. Provaznik, Charles F. Sargent, Nelson Clark and G. V. (Jerry) Flynn, Respondents.
    No. 38039.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 27, 1977.

      Robert C. Jones, Ziercher, Hocker, Tzin-berg, Human & Michenfelder, Clayton, for appellant.
    Donald U. Beimdiek, St. Louis, for respondents.
   ALDEN A. STOCKARD, Special Judge.

Steak n Shake, Inc. has appealed from the judgment of the Circuit Court of St. Louis County wherein it affirmed the refusal of the City of Richmond Heights to grant “conditional use permits” for appellant to construct and operate an enlarged restaurant facility.

Appellant submitted to the City of Richmond Heights two petitions for a “conditional use permit.” Petition 74-7 described land on which there existed a Steak n Shake restaurant operating primarily as a “carry-out” or “curb-service” facility. By the petition permission was sought to construct an enlarged facility. The other, Petition 74-6, described an area to be used for parking space for patrons of the new restaurant.

We do not find a copy of the applicable ordinance in the record. Therefore, we do not know and cannot set out the procedure therein provided for processing a petition for a conditional use permit. See for example, State ex rel. Union Electric Co. v. University City, 449 S.W.2d 894 (Mo.App.1970). Apparently it required the petitions to be submitted to various city departments, including the city Plan and Zoning Commission which recommended “that the City Council approve [the] petitions” contingent on seven enumerated conditions, all of which were expressly accepted and agreed to by appellant. Other departments made recommendations or comments concerning the applications, but none recommended disapproval, and there is no contention that appellant did not agree to any recommended condition.

On May 19, 1975 a public hearing was held before the City Council. At that hearing it was developed that Steak n Shake had an existing facility located on the land described in Petition 74-7 which had a floor area of 915 square feet, and which had eleven “stool-type” seats at a counter. Appellant sought to enlarge and modernize the building to 3,715 square feet and increase the seating capacity to 120 seats. By use of the land described in Petition 74-6 it was proposed to increase the parking facilities to 63 spaces. The overall purpose was to convert the facility to be primarily a “sit-down” restaurant, but to retain at least some curb-service. While the present business was 70% to 75% curb service, it was estimated that in the new facility only about 25% of the business would be curb-service. There was no evidence presented by the City, although questions were asked of appellant’s representatives by members of the Council, and there was some comment by a lay person concerning the then existing traffic conditions.

Again we note that we are not advised of the requirements of the applicable ordinance, but at the conclusion of the hearing the mayor announced that “in the matters concerning the granting or the consideration of the granting of the conditional use permits, we are required under the conditions and directions of our zoning ordinance to make certain specific findings.”

We set forth verbatim from the minutes of the City Council for November 3, 1975, the questions on which votes were taken, the questions being identical as to each petition, and the vote as to each petition.

(a) Will the proposed use substantially increase traffic hazards or congestion?
No. 74-7 Ayes — 3; Naes — 1.
No. 74-6 Ayes — 3; Naes — 1.
(b) Will the proposed use substantially increase fire hazards?
No. 74-7 Ayes — 0; Naes — 4.
No. 74-6 Ayes — 0; Naes — 4.
(c) Will the proposed use adversely affect the character of the neighborhood?
No. 74-7 Ayes — 0; Naes — 4.
No. 74-6 Ayes — 3; Naes — 1.
(d) Will the proposed use adversely affect the general welfare of the community?
No. 74-7 Ayes — 0; Naes^ — 4.
No. 74-6 Ayes — 0; Naes — 4.
(e) Will the proposed use over-tax public utilities?
No. 74-7 Ayes — 0; Naes — 4.
No. 74-6 Ayes — 0; Naes — 4.
(f) Will the proposed use adversely affect public safety and health?
No. 74-7 Ayes — 1; Naes — 3.
No. 74-6 Ayes — 0; Naes — 4.
(g) Is the proposed use consistent with good planning practice?
No. 74-7 Ayes — 2; Naes — 2.
No. 74-6 Ayes — 1; Naes — 3.
(h) Can the proposed use be operated in a manner that is not detrimental to the permitted developments and uses in the District?
No. 74-7 Ayes — 4; Naes — 0.
No. 74-6 Ayes — 4; Naes — 0.
(i) Can the proposed use be developed and operated in a manner that is visually compatible with the permitted uses in the surrounding area?
No. 74-7 Ayes — 3; Naes — 1.
No. 74-6 Ayes — 3; Naes — 1.
(j) Is the proposed use deemed essential or desirable to preserve and promote the public health, safety and general welfare of the City of Richmond Heights?
No. 74-7 Ayes — 2; Naes — 2.
No. 74-6 Ayes — 1; Naes — 3.

The mayor then announced that as to Petition 74-7 the Council’s findings “by a majority voice vote” were affirmative as to (a) and negative as to (g) and (j), thereby denying the granting of the petition, and that as to Petition 74-6 the Council’s findings “by a majority voice vote” were affirmative as to (a) and (e) and were negative as to (g) and (j), thereby denying the granting of the petition. We note here that the vote on Petition 74-7 as to questions (g) and (j) was not “by a majority voice vote,” but the vote was equally divided.

On December 1, 1975 appellant filed in the Circuit Court of St. Louis County its petition for a judicial review of the decision of the City Council pursuant to Rule 100.07, or in the alternative for a writ of certiorari for review pursuant to Rule 100.08. Appellant argues on this appeal that this is not a “contested case” as defined in Rule 100.01, and that the scope of review is that provided by Rule 100.08(a). No additional evidence was submitted to the trial court, and on March 3, 1976, it entered judgment that “the decision of the City Council denying [appellant’s] applications for conditional use permits [is] supported by competent and substantial evidence, and [is] not against the overwhelming weight of the evidence.”

This requires a determination on our part of the scope of our review which depends upon whether this case is a “contested case” within the meaning of Rule 100.01(3). The term is there defined as a “proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing; # * *

When the legislative . body of the City chooses, as the City of Richmond Heights has done, to delegate to itself the discretionary power to enforce its regulation of conditional use permits, it acts administratively in passing on applications for such permits. State ex rel. Manchester Improvement Co. v. City of Manchester, 400 S.W.2d 47 (Mo.1966); State ex rel. Union Electric Co. v. University City, supra.

A hearing was held on the petitions for conditional use permits, and in its brief appellant admits that “a public hearing is required [by the ordinance] to be held prior to the issuance of a conditional use permit.” It asserts, however, that this is not a “contested case” because “there is no statutory or ordinance requirement for a record to be kept.” We do not agree that this results in this not being a contested case. The case of In re Village of Lone Jack, 419 S.W.2d 87, 90 (Mo. banc 1967), involved a situation where the testimony of witnesses at a required hearing before an administrative agency was not preserved and therefore not filed with the reviewing court. It was held: “Parties desiring that their interests be reviewed in accordance with § 536.140 [Rule 100.07] will see to it that the full record necessary for proper review is certified to the initial reviewing court; * * The requirement in this case that the conditional use permits be issued only after a hearing resulted in this case being a “contested case,” but the duty to cause a record thereof to be made and kept is on the “parties desiring that their interests be reviewed.” See also Sullivan County v. State Tax Commission, 513 S.W.2d 452 (Mo.1974).

Appellant admits that the conditional use provisions of the ordinance of the City of Richmond Heights contain sufficient standards to guide the City Council in making its determinations, but it contends that the Council acted “arbitrarily, capriciously and discriminatorily in applying the evidence to these standards, and ignored uncontradicted and unimpeached testimony in making their determination to deny the applications.” See Rule 100.07(6). It also contends that there was not substantial and competent evidence to support the conclusions reached. See Rule 100.07(3).

We are not informed why two petitions for a conditional use permit were filed. It may have been because the land described in Petition 74-7 was zoned “G — Commercial” and that described in Petition 74-6 was zoned “F — 1 Limited Commercial.” But in each petition it was made clear that the purpose and intent was to “utilize the entire tract of land” owned by Steak n Shake as a “total facility” for a restaurant. Also, in the presentation of this ease to the City Council appellant made it plain that it proposed to use the two tracts described in the petitions “for a combined use and parking facility.” Under no circumstance could the members of the City Council reasonably have believed that Steak n Shake sought approval of either petition without approval of the other. While technical reasons may have required two petitions, they were in fact but one request. It may have been proper, and perhaps necessary, to vote on the ten questions as to each petition but it was inconsistent for the Council to determine that the use proposed by Petition 74-6 would adversely affect the character of the neighborhood, but that the use proposed by Petition 74-7 would not do so.

We also note that by its vote the City Council determined that the use proposed by each petition would not adversely affect the “general welfare of the community” or the “public safety and health.” But, by its vote on question (j) it determined that the proposed use in each petition would not be essential or desirable to “preserve and promote the public health, safety and general welfare of the City of Richmond Heights.” We consider the votes as to “adversely affect” and to “preserve” to be inconsistent. Appellant does not present the issue, but we know of no authority for a city to impose as a condition for the use of land that it affirmatively “promote” the public health and general welfare in addition to not having an adverse affect.

To recapitulate, the votes adverse to appellant’s applications were:

(a) the proposed use would increase traffic hazards or congestion;
(b) the proposed use would not be consistent with good planning practice;
(c) the proposed use would not be essential or desirable to preserve and promote the public health, safety and general welfare of the City of Richmond Heights.

There was evidence that some increase in traffic would probably result from the proposed use, but there was absolutely no evidence that this increase in traffic would “substantially increase traffic hazards or congestion.” This standard was not mentioned by any witness. There was no evidence of the existing volume of traffic, or of the capacity of the streets in the immediate neighborhood, or that the anticipated increase in traffic could not be absorbed by effective traffic controls. For example, the report to the Council by the Chief of Police recommended that “a barrier [be] built along the alley right of way with an established intersection between the two lots,” and the view was expressed that such barrier “would give a degree of safety for both pedestrians and vehicular traffic.” The test established by the ordinance is whether there would be a “substantial increase in traffic hazards or [traffic] congestion;” not whether there would be some increase in the volume of the traffic. The City totally ignores this distinction in its brief. The record is totally devoid of any evidence of the former.

The record also contains no evidence to establish, or from which it could be found, that the proposed use would not be consistent with good planning practice. There is nothing in the record from which it could be determined that the proposed use would violate any acceptable principle of good city planning. In fact, there is nothing in the record to show the characteristic of the immediate neighborhood, or that any plan exists, or in what respects a plan, if one exists, would be violated.

Disregarding the inconsistency between the findings by the Council that the proposed use would not “adversely affect” the general welfare or the public safety and health, but that it would not be essential or desirable to “preserve and promote” the public health, safety and general welfare, there is absolutely no evidence as to how and in what respects it would have the adverse affect referred to in the latter finding. Any such finding necessarily is based solely on speculation and conjecture.

The Council also found that the proposed use of the parking lot would adversely affect the character of the neighborhood but that the proposed use to enlarge the building would not. As previously noted, the record disclosed no intention to devote either parcel to the proposed use independently of the other. Other than a casual reference to a “McDonalds” in the neighborhood, there is no evidence of the character of the neighborhood, or how and in what respects the proposed use would adversely affect that character, whatever it is.

The City argues in its brief that the issue before the Council was a “debatable one,” and in support of this contention it sets forth the following seven items of information the Council had available to it for consideration.

(a) Information presented at the March 19, 1975 meeting of the City Plan and Zoning Commission.
(b) The March 25,1975 report of the City Plan and Zoning Commission.
(c) Reports from the City Department supervisors.
(d) Petitions from City residents.
(e) Information presented at the public hearing held on May 19, 1975.
(f) “Report dated July 15, 1975 from the Christner Partnership — Architects and Planners titled ‘Comprehensive Study — Phase I Richmond Heights, Missouri — area bounded by Clayton Road to Highway 40, Innerbelt to Black Creek.’ ”
(g) Personal observations of the area.

As to item (a), there is nothing in the record before us as to what “information” was presented at the March 19 meeting, and we do not even know that members of the City Council, or any of them, were present.

As to item (b), the report of the City Plan and Zoning Commission contained the recommendation that the petitions be granted with certain conditions, all of which appellant expressly agreed to.

As to item (c), there is no report in the record from any department supervisor recommending disapproval of the petitions, and we find nothing in any such report which lends support to the adverse votes of the Council.

As to items (d) and (e), the petitions in the record from City residents are all in support of the approval of the petitions, and we find nothing in the record of the hearing held May 19, 1975, which is a part of the record before us, which supports the adverse votes of the Council.

There is no such report in the record as that referred to in item (f). It was dated after the hearing on the petitions in this case was closed. If the City Council considered it to have been of any importance to this case, the hearing could have been reopened, the report then received in evidence, and appellant afforded an opportunity to reply to it if it was adverse to appellant’s petitions. Having elected not to do so, the City cannot now be heard to say that it was entitled to base its determination in part on that report.

In its brief the City admits that members of the Council based their decision, at least in part, on the information presented at the meeting of the Plan and Zoning Commission, the report dated July 15, 1975, and on “personal observations.” The City Council was required to determine certain issues after a public hearing. That requirement clearly contemplates that the findings and decisions of the members of the Council are to be based on the evidence presented at that hearing. As stated in 3 American Law of Zoning 2d ed., Anderson, § 20.37, “Where a board decides an issue on the basis of its knowledge, accumulated over the years or gained through an inspection of the premises, serious questions of fairness arise.” Also, “Although a board of adjustment [to which the City Council in this case should be comparable] may properly use its own knowledge to reach a decision, the facts which are known to the board members and not otherwise disclosed in the record must be recited in the record.” This precise issue was presented in Niggel v. City of Columbia, 254 S.C. 19, 173 S.E.2d 136, 139 (1970), and we agree with what was there said:

“The Zoning Ordinance requires that the Board of Adjustment determine issues presented to it after notice and a hearing. Its findings and decisions as to whether a proposed use of property complies with the uses permitted in a particular district must of necessity be reached on the basis of the evidence and record before it. While members of the Board may be presumed to have special knowledge of the area involved and may, under proper circumstances, use such knowledge in deciding a matter, there is no presumption that its special knowledge as to disputed factual issues was used in reaching a decision. As a general rule, before the special or personal knowledge of the members of the Board may be used as a basis for its decision, such fact must be set forth in the record, together with a statement of the facts which are known to the board and not otherwise disclosed in the record. Such disclosure of record has a two-fold purpose — first, to afford the parties an opportunity to test the accuracy or relevance of the board’s personal information relative to the disputed issues to be decided and, second, to provide a record for an intelligent review by the court. A lack of evidence at the hearing on disputed factual issues cannot be supplied by a presumption that the board had special information which was not shown in the record.”

Our review is confined to the evidence presented at the hearing before the City Council and certified to the Circuit Court, which constitutes the record on this appeal. There is nothing in that record to indicate what facts were considered by the board which are not a part of the record. The courts should not presume that members of an administrative agency based their decisions on personal knowledge simply because there is no evidence in the record that they did not do so. In that situation the agency is entitled to the presumption of regularity. Trovato v. Chiaradio, 95 R.I. 326, 186 A.2d 736 (1963). But in this case, the City admits in its brief that the members of the Council did base their votes, at least in part, on personal knowledge, on a report never introduced in evidence or seen by appellant, and on other evidence not in the record. In such circumstances this results in the action of the City Council in denying the petitions of appellant being arbitrary, capricious, and an abuse of discretion.

Because of the inconsistencies previously mentioned, the total lack of competent evidence to support the rulings adverse to appellant’s petitions, and the improper procedure on the part of the members of the City Council, the decision to deny the petitions cannot be permitted to stand.

The judgment of the Circuit Court is reversed and the cause remanded with directions that it remand the proceedings to the City Council of Richmond Heights for further consideration of the petitions.

SIMEONE, C. J., and NORWIN D. HOUSER, Special Judge, concur.

      . In its brief to this court the City of Richmond Heights erroneously states that the City Council concluded that the use proposed by Petition 74-7 would adversely affect the character of the neighborhood.


source: Caselaw Access Project

author: SAMUEL E. SEMPLE, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert Charles SINGLETON, Defendant-Appellant.
    No. 37181.
    Missouri Court of Appeals, St. Louis District, Special Division.
    Dec. 27, 1977.

      Allen I. Harris, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Sam C. Bertolet, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   SAMUEL E. SEMPLE, Special Judge.

Appellant, Robert Charles Singleton, was charged and convicted by a jury of stealing goods with a value of at least fifty dollars, § 560.156, subsection 2, § 560.161, subsection 1(2), RSMo. 1969, and having been tried under provisions of § 556.280, RSMo. 1969, was sentenced by the court to seven years imprisonment. Appellant appeals from that conviction and sentence. We affirm.

Appellant’s basic contention on appeal is that his Fourth Amendment rights were violated by an unlawful search and seizure and that the trial court thus erred in admitting the stolen merchandise into evidence despite appellant’s timely motion to suppress.

The evidence presented at the hearing on the Motion to Suppress established that on the evening of March 29, 1974, pursuant to a tip from a security guard that a known shoplifter was in the area, several officers of the Des Peres Police Department were dispatched to the West County Shopping Center to observe the activities of Ronald Jefferson. Police followed Jefferson from store to store and then to an automobile in the parking lot of the Center. After Jefferson entered the vehicle the police approached and observed a suit and other articles of clothing in his possession that appeared to have been stolen. Jefferson confessed to the theft and was arrested. Jefferson told the police that he had ridden to the shopping center with two other men and that all three had come with the intent of stealing whatever they could because they were all drug addicts. The two other men were identified as “Charles,” the owner of the car, and Robert Green.

The police officers, after receiving this information from Jefferson, put the car in which Jefferson had placed the stolen merchandise under surveillance and Jefferson was held in the police ear. Approximately fifteen to twenty minutes later appellant (Singleton) approached the car and Jefferson told the police officers that appellant was one of the other men with him. When appellant entered the car Officer Sutton then approached and observed appellant bending over inside the car apparently reaching for something from the floor board. Officer Sutton identified himself and appellant turned around startled. Appellant was told to get out of the car and was frisked by Officer Sutton. Several hard objects were felt at the waist area under the wind breaker jacket that appellant was wearing. Sutton opened the jacket and found three cameras stuck into appellant’s waist band. The cameras were seized.

Appellant’s motion to suppress was overruled four days before the trial of the case began. It was established at the trial that the appellant was advised of his rights and informed that he was under arrest after Officer Sutton discovered the cameras and seized them. Appellant then made a statement to the effect that he had stolen the cameras from the Famous-Barr stockroom. The three cameras were introduced in evidence over objection by the defense.

Appellant claims that the search and seizure of the cameras from his person was not justified under any of the exceptions to the Fourth Amendment and argues that the only act of the appellant was to approach a car that was under surveillance. We hold that the stop and search of appellant by Officer Sutton in this case was justified under the “investigatory stop” or “protective search” analysis developed in the cases of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); and Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

The general rule requires prior approval by a neutral judge or magistrate as a prerequisite to a valid search, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, reh. den. 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971). The Supreme Court in Terry recognized that historically police have deemed it essential to take action based upon quickly developing events when there is no time to resort to the warrant procedure. The Terry “stop and frisk” doctrine is now recognized as an exception to the general rule enunciated in Coolidge, and the now familiar conclusion in Terry is that:

“[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquires, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” 88 S.Ct. at 1884-1885.

An objective standard is used in determining whether facts available to the officer at the moment of the seizure of the suspect’s person warrant a person of reasonable caution in the belief that the action taken is appropriate. Terry, 88 S.Ct. at 1880. “[In] justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” Terry, 88 S.Ct. at 1880; see also State v. Johnson, 529 S.W.2d 658, 664 (Mo.App.1975).

Appellant appears to contend that the police had no more reason to suspect him of suspicious or criminal activity than they would any citizen who entered a ear in the parking lot of a shopping center. The evidence in this case does not warrant such an assertion at the time of the stop and protective search of appellant. Officer Sutton knew or had reasonable grounds to believe: (1) appellant and two other persons were there at the shopping center to steal whatever they could because they were all drug addicts; (2) stolen merchandise had been recovered from the car and one of appellant’s companions (Jefferson) had been arrested for stealing; (3) appellant’s companion, Jefferson, had implicated appellant as a participant in the plan to steal whatever they could; (4) Jefferson identified appellant as he approached the car; (5) appellant wore a jacket that covered his waist; (6) appellant upon entering the car leaned over and appeared to be reaching for something on the floor board and turned around startled when Officer Sutton identified himself.

Although the stop is reasonable the officer must also be justified in the belief that the subject could be armed to proceed with the “frisk.” The test is whether a reasonably prudent man would be justified in the fear that his safety or that of others was in danger. Terry, 88 S.Ct. at 1883.

The limited search conducted in this case was not violative of appellant’s Fourth Amendment rights. Even if the strong likelihood was that appellant had committed the crime furtively and without the use of weapons, which Officer Sutton could not be certain of, it is not unreasonable to fear that one who plans to unlawfully steal property of others in broad daylight would carry a weapon to aid an escape should he be discovered. Stealing invites resistance and possible pursuit. The fact that appellant was believed to be an addict and planned the activity in advance increases the likelihood that he would be armed. The widespread use of guns and knives by persons engaged in criminal activities has resulted in the killing and wounding of many law enforcement officers and such fact is relevant to an assessment of the need for law enforcement officers to protect themselves. Terry, 88 S.Ct. at 1881.

Information obtained from a reliable informant or third party, when coupled with a strong basis for crediting the information and reasonable corroboration, can justify an investigative stop as well as constitute probable cause for an arrest. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959); State v. Wiley, 522 S.W.2d 281, 288 (Mo. banc 1975); State v. Gant, 490 S.W.2d 46, 48 (Mo.1973); State v. Sanders, 530 S.W.2d 749, 752 (Mo.App.1975). The credence to be given the information received from a third party informant is a factual question to be determined under the circumstances of each case. The facts in this case clearly indicate a justified reliance by Officer Sutton on Jefferson’s statements. Jefferson had implicated himself in a theft, had made a confession, the information concerning appellant was given in the course of the confession and he had no motive to mislead the police at the time of his statements.

Peters, 88 S.Ct. 1889, supports our affirmance. Peters was one of two men an off-duty police officer suspected of burglarizing or attempting to burglarize apartments in his building in the early afternoon. Peters’ criminal plans apparently did not provide for a show of force, nor the use of weapons. Hearing a noise at his door, the officer observed through the peephole two men he knew to be strangers to his building “tiptoeing” toward the stairway. He put on clothes, armed himself, observed similar conduct again and slammed his door as he entered the hallway. The two men then fled down the stairway and the officer gave chase and captured Peters. The officer patted Peters down and felt a hard object in a pocket that he felt could have been a knife. The officer reached in and removed from the pocket an envelope containing burglar tools, the possession of which formed the basis of Peters’ conviction.

While the majority found probable cause to arrest Peters and thus upheld the search as incident to a valid arrest, Justice White felt that the affirmance should be based on the fact that “there was probable cause to stop Peters for questioning and thus to frisk him for dangerous weapons.” Peters, 88 S.Ct. at 1905. Sibron, 88 S.Ct. 1889, relied upon by appellant, is distinguishable on facts indicating a search to discover evidence instead of weapons under circumstances not justifying a reasonable fear for the officer’s or others’ safety.

The Missouri cases cited by appellant are distinguishable. In State v. Hall, 508 S.W.2d 200 (Mo.App.1974), the officer took defendant into custody and had defendant drive himself to the police station rather than be taken in a police car. While so going to the police station the officer searched the glove compartment of defendant’s car and discovered incriminating evidence of a crime the officer did not even suspect defendant of committing. The search was held not justified under the ruling in Terry and the evidence was suppressed. In the case of Kansas City v. Butters, 507 S.W.2d 49 (Mo.App.1974), also cited by appellant, it was held that a standard police department procedure of frisking “every male we came in contact with” to insure that they do not have a weapon could not circumvent the constitutional analysis required by Terry.

While the sole justification for the “patdown” search pursuant to an investigative stop is to discover weapons that could be used for an assault, Terry, 88 S.Ct. at 1884, it is clear that other evidence discovered in the course of such a search can be seized. Sibron, 88 S.Ct. at 1905 (White, J., concurring) and 88 S.Ct. at 1910 (Harlan, J., concurring). The cameras found on appellant’s person in this case were properly admitted into evidence.

Appellant argues that the search cannot be justified under the principles of “search incident to arrest” because (1) Officer Sutton testified that he did not arrest appellant until after the search, (2) Officer Sutton had no knowledge that a crime had been committed prior to the search, and (3) Hall, 508 S.W.2d at 205, states that an incidental search must be “incident to, following and not preceding a lawful arrest . . . .”

We hold there was probable cause to arrest appellant at the time the search was made by Officer Sutton and that the search can be upheld on that basis. Such a policy allows the court to determine the validity of a search by objective standards rather than relying on the officer’s subjective belief as to when he has probable cause to arrest. United States v. Skinner, 412 F.2d 98, 103-104 (8th Cir.), cert. den. 396 U.S. 967, 90 S.Ct. 448, 24 L.Ed.2d 433 (1969); United States v. Taylor, 428 F.2d 515, 519-520 (8th Cir. 1970), cert. den. 401 U.S. 983, 91 S.Ct. 1208, 28 L.Ed.2d 335 (1971).

We hold that there was probable cause for Officer Sutton to effect a war-rantless arrest of appellant. Probable cause requires more than mere suspicion that a subject has committed a crime, Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 170, 4 L.Ed.2d 134 (1959), but a “broad gulf exists” between the quantum of evidence necessary to establish guilt and that necessary to establish probable cause for a warrantless arrest. State v. Grady, 548 S.W.2d 601, 608 (Mo.App.1977). The test is whether the officer had reasonable grounds to believe that the subject had committed or was in the process of committing a crime. Gant, 490 S.W.2d at 48; State v. Robinson, 484 S.W.2d 186, 190 (Mo.1972); Wiley, 522 S.W.2d at 287; Grady, 548 S.W.2d at 608; Adams, 92 S.Ct. at 1924.

Draper, 79 S.Ct. 329, supports a finding of probable cause to arrest appellant on suspicion of theft at the time Officer Sutton ordered him from the automobile. In Draper a government agent was given information by a reliable informant that a subject — a stranger to the arresting officer — would alight from a train on one of two days wearing certain clothing and carrying a bag and that he would be walking fast and carrying narcotics. The agent “personally verified every facet of the information . . . except whether [suspect had the heroin] . . . . And surely, with every other bit of . information being thus personally verified, [the agent] had ‘reasonable grounds’ to believe that the remaining unverified bit of . information — that [the suspect] would have the heroin with him — was likewise true.” Draper, 79 S.Ct. at 333. Officer Sutton was equally justified in crediting Jefferson’s statement that appellant was involved in a stealing “mission” at the time of his search and in believing he had stolen merchandise in his possession at the time he entered the car.

We have reviewed all authority cited by appellant in support of his contentions and conclude that the search was not violative of his Fourth Amendment rights and that there is no error requiring reversal. The motion to suppress the cameras as evidence at trial was properly overruled.

The judgment of the trial court is affirmed.

SIMEONE, C. J., DOWD and STEWART, JJ., and DONALD L. MASON, Special Judge, concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Oscar James GRANT, Defendant-Appellant.
    No. 38165.
    Missouri Court of Appeals, St. Louis District, Special Division.
    Dec. 27, 1977.

      Robert C. Babione, Public Defender, Sara T. Harmon, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Walter O. Theiss, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent;
   SAMUEL E. SEMPLE, Special Judge.

Defendant-appellant, Oscar James Grant, appeals from a judgment of conviction entered by the Circuit Court of the City of St. Louis on May 21, 1976. The jury found Grant guilty of murder in the second degree, § 559.020, RSMo.1969, and assessed his punishment at ten years. The court imposed a sentence of ten years imprisonment in the Department of Corrections.

This appeal involves alleged errors in the trial court’s application of § 552.020, RSMo. 1969. Section 552.020 provides procedure and guidelines to be followed in determining whether an accused lacks capacity to understand the proceedings against him or to assist in his own defense as a result of a mental disease or defect. Specifically at issue on this appeal are (1) the right of an accused to a second psychiatric examination at state expense and (2) the circumstances under which a court must order a hearing on an accused’s competency to stand trial.

The evidence at the trial clearly established that appellant and his cousin, Sanders Johnson, Jr., the deceased, spent most of May 23,1975 drinking with friends. Appellant and the deceased got into an argument. The deceased struck appellant and pulled a knife on him. Appellant wrested the knife from the deceased and started chasing him. Appellant chased deceased into a store and deceased jumped at him. In the struggle that followed the deceased was fatally slashed and stabbed.

Appellant’s counsel filed a pretrial motion for a psychiatric examination of appellant. The motion stated that on May 23, 1975, and continuing thereafter, appellant had a mental disease or defect within the meaning of § 552.010, RSMo.1969. The trial court granted the motion and the psychiatric examination was performed at Fulton State Hospital in Fulton, Missouri. The confidential medical report resulting from the psychiatric examination showed that appellant was not suffering from a mental disease or defect within the meaning of § 552.010, RSMo.1969 and had the capacity to understand the proceedings and to assist in. his own defense. This report was filed with the Circuit Court on September 9, . 1975.

On September 10, 1975, after receiving a copy of the psychiatric report, appellant’s counsel filed “Objections To Findings of Psychiatrist” which stated:

“Comes now Joseph W. Warzycki, attorney for Defendant, and informs the Court that in accordance with the provisions of Section 552.020(4) R.S.Mo.1969, the Defendant hereby files an objection to the findings entered in the report of the psychiatric examination previously ordered by the Court, a copy of which was received by Defendant’s attorney on September 10, 1975. Defendant further informs the Court that he is without funds to employ the services of a psychiatrist; and Defendant requests that the court order that Defendant be examined by another psychiatrist to be designated by the Court and that a copy of the report of this examination be included in the confidential Court files relative to the Defendant’s cause before this Court.”

The trial court, on October 16, 1975, found that the findings of the psychiatric report were not contested by the State, nor the accused, nor his counsel. Thereupon the court found that the defendant had mental fitness to proceed based upon said psychiatric report. The cause was ordered removed from the mental examination docket and set for trial.

Appellant’s first contention is that the trial court erred in refusing to grant him a second psychiatric examination because § 552.020, subsection 4, RSMo.1969, requires the court to order that a defendant be examined by a second court appointed psychiatrist, upon timely written request, even though he is without funds to pay for the examination.

The pertinent portion of subsection 4, § 552.020 provides that:

“Within five days after the filing of the [initial psychiatric] report, both the accused and the state shall, upon written request, be entitled to an order granting them an examination of the accused by a physician of their own choosing and at their own expense.”

The court did not violate the provisions of subsection 4, § 552.020 in denying appellant’s motion that the court appoint a second psychiatrist to examine appellant at no expense to him. Subsection 4 makes no mention of, nor does it provide for, the appointment of a psychiatrist by the court as does subsection 2, § 552.020. Subsection 4 explicitly provides that the second examination is to be made by a physician, chosen and paid by the party making the request. That a defendant cannot obtain a second examination without cost to him has been definitely settled in this state. State v. Mullen, 532 S.W.2d 794, 799 (Mo.App.1975). The record does not indicate that a motion for an order granting appellant a second examination by a physician of appellant’s own choosing and at appellant’s own expense was ever presented to the trial court. Appellant does not cite any authority for construing subsection 4 as he urges. The only authority he does cite, Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) is not in point to appellant’s contention of error.

Appellant’s second contention is that even if the trial court acted properly under the statute in denying a second psychiatric examination, there was error because the statute is unconstitutional under the Fourteenth Amendment to the United States Constitution and Article I, Sections Two and Ten of the Missouri Constitution. Appellant contends that § 552.020, subsection 4, creates an invidious classification based upon wealth that denies an indigent defendant an equal opportunity to a second psychiatric examination to effectively contest the findings of the first psychiatric examination.

The Supreme Court of the United States has ruled that the equal protection clause does not require absolute equality or precisely equal advantages, nor does it require the State to equalize economic conditions. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974). See also, San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16, reh. den., 411 U.S. 959, 93 S.Ct. 1919, 36 L.Ed.2d 418 (1973).

Section 552.020 has withstood similar constitutional challenges as ruled by the Missouri courts. The appellant in State v. Terry, 472 S.W.2d 426 (Mo. banc 1971) claimed that § 552.020, subsection 4, denied him equal protection under the law because he, as an indigent person, could not have an examination by his own private physician whereas defendants with money could have the benefit of the testimony of a private physician. The court, citing the case of State ex rel. Hoover v. Bloom, 461 S.W.2d 841 (Mo. banc 1971), ruled on this constitutional issue as follows:

“In [Bloom case] an inmate in a state mental institution applying for release on the ground that he was now sane, sought an examination by a physician of his own choice contending he was entitled to the examination at state expense. The contention was rejected. . . . The cases concerning the alleged equal protection violation involved in making possible an examination by a physician of the petitioner’s own choice for moneyed inmates but not for indigents were reviewed, and we did not find a constitutionally impermissible discrimination. We do not find one here.” 472 S.W.2d at 429-430.

Accord, State v. Sturdivan, 497 S.W.2d 139, 144 (Mo.1973); State v. Mullen, 532 S.W.2d 794, 799 (Mo.App.1975); Newbold v. State, 492 S.W.2d 809, 820-821 (Mo.1973).

In view of the fact that the statute provides for, and appellant received, one free and objective examination at state expense, there is not an unconstitutional and invidious discrimination based upon wealth. That appellant was dissatisfied with the result of the initial examination does not without more require the State to continue to pay for subsequent examinations.

Appellant’s third alleged ground for reversal is that the trial court violated § 552.020, subsection 6, by not holding a hearing on the issue of appellant’s competency to stand trial. As the court has no alternative but to hold a hearing if a contest has in fact been made, the issue reduces itself here to whether the actions taken by appellant constituted a contest. The trial court found, and we agree, that appellant did not contest the psychiatrist’s opinion within the meaning of subsection 6.

Appellant bases his assertion that he contested the psychiatrist’s opinion on his motion for a second court ordered examination. In that motion appellant stated in part that “in accordance with the provisions of § 552.020(4), R.S.Mo.1969, the defendant hereby files an objection to the findings entered in the report of the psychiatric examination previously ordered by the court

Contrary to the language in appellant’s motion, there is no provision in § 552.020, subsection 4, for filing an objection to the findings of the court ordered psychiatric examination report. Appellant’s motion constitutes an unsuccessful attempt to obtain an order granting a second examination under subsection 4 of § 552.020. The motion contained no stated basis for the “objections” regarding either the competency of the examiner or the validity of the procedures used. The motion did not request a hearing at which appellant could dispute the findings of the examiner.

To “contest” is “[t]o strive, to win or hold; to controvert, litigate, call in question, challenge. . . .” Black’s Law Dictionary 391 (Revised 4th ed. 1968). At most, appellant's motion merely evidenced a dissatisfaction with the finding of the first examination. There was no attempt to show that the dissatisfaction was properly grounded, that is, the basis of the objection.

This court was presented with a similar claim in State v. Vansandts, 540 S.W.2d 192, 200 (Mo.App.1976). In that case defendant’s counsel also filed an objection to Findings of Psychiatrist and requested an examination by another psychiatrist. The court rejected the contention that such a motion for a second examination constituted a “contest” within the meaning of the law.

The object of appellant’s motion here was to obtain a second examination under subsection 4, § 552.020, not to contest the opinion of the first psychiatrist under subsection 6, § 552.020, As we find that appellant did not contest the opinion of the court-appointed psychiatrist, and since there is no error in failing to hold a competency hearing when a report is not contested, Vansandts, 540 S.W.2d at 201, Newman v. State, 481 S.W.2d 3, 6 (Mo.1972), we find no merit in appellant’s third asserted ground for reversal.

We have studied the transcript and all authority cited by appellant in support of his alleged grounds of error and find no error requiring reversal.

The judgment of conviction is therefore affirmed.

SIMEONE, C. J., DOWD and STEWART, JJ., and DONALD L. MASON, Special Judge, concur.

      . A different holding could result on a finding that the first psychiatrist was biased or incompetent; otherwise, one objective and independent examination is all that is constitutionally required under the statute. In Bloom, 461 S.W.2d at 844, the court stated that: “Even if relator had funds to employ a psychiatrist of bis own choosing, it could not be assumed that it would be concluded relator is now sane. All that money could have obtained would have been an ‘independent’ examination, and relator, by virtue of the equal protection clause, is entitled to have an examination that is professionally independent of any influence by those having custodial control. An examination by a competent psychiatrist who is in a position to freely render his opinion based only on his professional training is constitutionally adequate because ‘ * * * it is appropriate to observe that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an “invidious discrimination”.’ Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811.”

      . § 552.020, subsection 6, RSMo.1969, provides:
      “If neither the state nor the accused nor his counsel contests the opinion referred to in subsection 3, subdivision (3), of this section relative to fitness to proceed [the initial court ordered psychiatric examination], the court may make a determination and finding of record on the basis of the report filed or may hold a hearing on its own motion. If any such opinion is contested the court shall hold a hearing on the issue.”


author: PER CURIAM.

text:
    COMMERCE BANK OF KANSAS CITY, N. A., a Banking Corporation, Plaintiff-Respondent, v. William E. CONRAD, Defendant-Appellant.
    No. 38884.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 27, 1977.

      William E. Conrad, pro se.
    Robert N. Feldmann, Gary A. Growe, St. Louis, for plaintiff-respondent.
   PER CURIAM.

This appeal is from a judgment of the Circuit Court of St. Louis County for $947.64 in favor of the plaintiff-respondent and against the defendant-appellant, William E. Conrad. The action was instituted in the Magistrate Court of St. Louis County wherein judgment in the amount of $947.64 was entered in favor of the plaintiff-respondent and defendant-appellant perfected his appeal to the Circuit Court of St. Louis County for trial de novo. In the Circuit Court, as in the Magistrate Court, the defendant-appellant appeared in propria persona, and the cause was tried to the court without a jury in each instance. The judgment aforesaid was entered by the Circuit Court and defendant-appellant filed a notice of appeal to the Missouri Court of Appeals, St. Louis District. Subsequently appellant filed a motion for transfer to the Supreme Court of the State of Missouri. This motion was denied.

Throughout this case, as in this court, the defendant-appellant chose to appear pro se and has filed a pro se brief in this court on appeal of the aforesaid judgment of the Circuit Court. His brief is a composite of legalistic phrasing and acrimonious allegations directed against the trial judges in both the Magistrate and Circuit Courts in which the cause was tried.

We find ourselves unable to decide this case on the merits because the Statement of Facts contained in defendant-appellant’s brief is so woefully deficient and constitutes a flagrant failure to comply with the requirements of Rule 84.04(c). We are compelled to dismiss this appeal on this basis alone.

While the defendant-appellant has the right to try and appeal his own case, he is bound by the same rules of procedure as those admitted to practice law and is entitled to no indulgence he would not have received if represented by counsel. State v. Bruce, 554 S.W.2d 482, 483[2] (Mo.App.1977); Collector of Revenue of the City of St. Louis v. Parcels of Land Encumbered with Delinquent Tax Liens, 531 S.W.2d 100[2] (Mo.App.1975).

Rule 84.04(c) requires that a Statement of Facts be a fair and concise statement of the facts relevant to the questions presented for determination without argument. The purpose of this Rule is to provide the appellate court with an immediate, accurate, complete and unbiased understanding of the facts of the case. Wipfler v. Easier, 250 S.W.2d 982, 984[3] (Mo.1952). The Statement of Facts in defendant-appellant’s brief utterly fails to accomplish this purpose and is violative of the Rule in numerous ways.

Defendant-appellant’s Statement of Facts fails to make any reference to the subject matter of the suit. While it contains a chronological compendium of the procedural history of the case, it fails to provide any facts informing this Court of the general nature of the controversy. A Statement of Facts which contains no relevant facts is violative of Rule 84.04(c). Walker Brothers, Inc. v. J. K. Seear (U. S. A.) Ltd., 364 S.W.2d 51, 52[1] (Mo.App.1962). It is a flagrant violation of not only the requirement of the Rule that the facts be presented without argument in this portion of the brief — Rule 84.04(c) — but it contains remarks and allegations unsupported by citation to the part of the transcript of the record where they may be found. It accuses the Magistrate Judge of collusion with the plaintiff-respondent, the acts and decisions of the Circuit Court Judge are categorized as “unconstitutional” and it accuses the Circuit Court Judge and the plaintiff-respondent of conspiring. These remarks and others contained in defendant-appellant’s Statement of Facts represent they type of inflammatory and biased comments prohibited in a Statement of Facts by Rule 84.04(c).

Defendant-appellant repeatedly argues law in the Statement of Facts and presents erroneous conclusions as to what the applicable law is. A recitation of the law — even when correct — is improper in the Statement of Facts portion of the brief, and is a violation of Rule 84.04(c). State v. Div. 1287 of Amalgamated Employees of America, 361 S.W.2d 33, 45 (Mo. banc 1962).

Finally, defendant-appellant’s Statement of Facts is so confusing that it fails in its essential purpose of providing the reviewing court with an “understanding” of the case. The lack of organized discourse, incomplete sentences, and intertwining statements of fact and law, render his Statement of Facts incoherent. A Statement of Facts which violates Rule 84.04(c) is sufficient grounds for dismissing an appeal. Devoy v. Devoy, 502 S.W.2d 428, 430[2] (Mo.App.1973).

While the Rules of Civil Procedure are to be liberally construed to promote justice and to minimize the number of cases disposed of on procedural questions, this court would be derelict in its duty if it did not insist upon at least a substantial compliance with rules governing brief on appeal. Walker Brothers, Inc. v. J. K. Seear (U. S. A.) Ltd., supra, l. c. 52[2]. Under the circumstances we find it necessary to dismiss defendant-appellant’s appeal.

The appeal is dismissed.

All Judges concur.

      . In addition to the violation of Rule 84.04(c), defendant-appellant’s brief contained 47 allegations of error in the Points Relied On portion of said brief; 29 directed to alleged errors in the Magistrate Court and 18 to those errors allegedly occurring in the Circuit Court. Many of these, like the Statement of Facts, did not comply with Rule 84.04(d), and consisted of lengthy rambling statements of inappropriate legal references which had no application to the case. A reading of the transcript reveals an admission by the defendant-appellant that his only defense to plaintiffs claim was that BankAmericard or the plaintiff should not have extended_ credit to him under the circumstances and therefore he felt he should not have to pay.


author: SMITH, Judge.

text:
    In re MARRIAGE OF Shirley A. DAVIS, Petitioner-Appellant, and James H. Davis, Respondent-Respondent.
    No. 38430.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 27, 1977.
    Kelly & Webb, Gordon F. Webb, St. Louis, for petitioner-appellant.
    Joseph A. Lott, Clayton, for respondent-respondent.
   SMITH, Judge.

Petitioner appeals from the trial court’s award of child support in a dissolution of marriage suit. The trial court awarded petitioner $90 per month per child for the support of three children aged 18, 17, and 14 at the present time. In the year preceding the dissolution proceeding, petitioner had a gross income of $16,000; respondent’s net income for that year was $11,000. We find it unnecessary to set forth in detail the varying and disputed items of expense of each of the parties or their projections and estimates of the expense of the children. Our review of the record convinces us that the judgment of the trial court is supported by substantial evidence and is not an abuse of discretion. See Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We have also determined that an opinion would have no precedential value and affirm the judgment in accord with Rule 84.16(b).

Judgment affirmed.

CLEMENS, P. J., and MeMILLIAN, J., concur.


author: McMILLIAN, Judge.

text:
    Anita IRBY, Plaintiff-Appellant, v. ST. LOUIS COUNTY CAB COMPANY, a corporation, LaVerne Coffman, Frank Parker and Donald Smith, Defendants-Respondents.
    No. 39270.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 27, 1977.

      Elmer C. Oberhellmann, St. Louis, for plaintiff-appellant; McBride & Simon, St. Louis, of counsel.
    Armstrong, Teasdale, Kramer & Vaughan, John P. Emde, William J. Travis, Jeffrey D. Fisher, St. Louis, for defendants-respondents.
   McMILLIAN, Judge.

Plaintiff-Appellant Anita Irby appeals from the order of the circuit court of the City of St. Louis sustaining the defendant-respondent’s motion to dismiss with prejudice her fifth amended petition for failure to state a claim upon which relief can be granted.

On March 4,1976, plaintiff filed her fifth amended petition seeking recovery for the wrongful death of her husband, Galen Irby, and naming as defendants, St. Louis County Cab Company, and LaVerne Coffman, Donald Smith, and Frank Parker, employees of the St. Louis County Cab Company. Plaintiff alleged in essence that (1) on December 17,1974, Galen Irby, decedent, was working for the defendant, St. Louis County Cab Company as an “independent cab driver”; (2) on December 17, 1974, at 7:52 p. m., defendant through its agents, LaVerne Coffman, Donald Smith, and Frank Parker, dispatched the decedent to respond to a request for a taxi at 5616 Vernon Avenue in St. Louis, a known “high crime area”; (3) as a result of the business relationship between defendant and plaintiff’s decedent, defendant had a duty to exercise ordinary care in dispatching the decedent into “high crime areas,” and provide means to protect him from intentional criminal acts of third persons; (4) as a direct and proximate result of the negligence and carelessness of the defendant in dispatching the decedent to the “high crime area,” and failing to provide means to protect him from intentional criminal acts of third persons, Galen Irby was murdered; (5) as a direct and proximate result of defendant’s negligence and carelessness, plaintiff incurred $1200.00 burial expenses, and the loss of support from her husband to the extent of $750,-000.00.

Count II realleged paragraphs 1 through 6 of Count I and is similar in every respect, except the plaintiff alleged in addition: (1) the duty of care arose as a result of a contractual agreement between the deceased and the defendant; and (2) by said agreement defendant owed a duty to exercise discretion in dispatching deceased to a high crime area.

Defendant St. Louis County Cab Company filed a motion to dismiss stating that plaintiff’s fifth amended petition fails to state any facts which, if true, would indicate any negligence of the defendant; further as a matter of law, plaintiffs petition indicates the direct and proximate cause of decedent’s death was not the events or occurrences which plaintiff claims to be the negligence of defendants; and even if defendant had failed to act as alleged, the death of the decedent would not have been prevented. Defendant contends in his motion that Count II should be dismissed because it is redundant, and purports to be based on contract which is not included as an action under the wrongful death statute.

By consent of the parties, the trial court considered the motions to dismiss of all the defendants and sustained the same for the reason that plaintiff’s petition fails to state a claim upon which relief can be granted. This appeal followed.

Appellant raises two issues on appeal: (1) the trial court erred in dismissing plaintiff’s fifth amended petition for failure to state a claim upon which relief could be granted, “because said petition clearly establishes a duty owing from defendant to plaintiff’s decedent,” and (2) the trial court erred “because said petition plainly sets forth sufficient facts to establish foreseeability and proximate cause.”

It is well settled in Missouri that a petition is not to be dismissed for failure to state a claim upon which relief can be granted unless it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Laclede Gas Co. v. Hampton Speedway Co., 520 S.W.2d 625 (Mo.App.1975). In reviewing “. . . the sufficiency of a petition on a motion to dismiss, we give the aver-ments a liberal construction and accord the petition those reasonable inferences fairly deducible from the facts stated.” Dix v. Motor Market, Inc., 540 S.W.2d 927, 929 (Mo.App.1976); Scheibel v. Hillis, 531 S.W.2d 285, 289 (Mo.1976).

A petition seeking damages for actionable negligence must allege ultimate facts, which, if proven, show (1) existence of a duty on the part of the defendant to protect plaintiff from injury, (2) failure of the defendant to perform that duty, and (3) injury to the plaintiff resulting from such failure. Scheibel v. Hillis, supra, at 288; Stevens v. Wetterau Foods, Inc., 501 S.W.2d 494, 498 (Mo.App.1973); Wise v. Towse, 366 S.W.2d 506, 510 (Mo.App.1963). Therefore, if the allegations in plaintiff’s petition, taken as true, do not satisfy the elements of actionable negligence as set out above, the trial court correctly dismissed the petition for failure to state a claim. Dix v. Motor Market, Inc., supra, at 932.

Appellant contends that her petition “clearly establishes a duty owing from the defendant to plaintiff’s decedent.” The existence of such a duty is essential to her cause of action. A duty to exercise care may not only be imposed by a controlling statute or ordinance or assumed by entering into a contractual relationship, but also may be imposed by common law under the circumstances of a given case. Scheibel v. Hillis, supra, at 288; Zuber v. Clarkson Const. Co., 363 Mo. 352, 251 S.W.2d 52, 55 (1952). Where the existence of a duty is established, however, it is not one to protect against every possible injury which might occur. Schlegel v. Knoll, 427 S.W.2d 480 (Mo.1968). The duty of care is limited to the protection of one from reasonably foreseeable danger. The test of whether there is a likelihood of future events giving rise to a duty to take precautions to avoid it, “. . .is not the balance of probabilities, but of the existence of some probability of sufficient moment to induce the reasonable mind to take the precautions which would avoid it. . ” Zuber v. Clarkson Constr. Co., supra, 251 S.W.2d at 55. It is said that, “. . . ordinarily, the duties imposed by the law of negligence arise out of circumstances and are based on foreseeability or reasonable anticipation that harm or injury is a likely result of acts or omissions. . . . ” Green v. Kahn, 391 S.W.2d 269, 275 (Mo.1965).

Appellant’s petition alleges that the defendant owed plaintiff’s decedent a duty of ordinary care to exercise discretion in disbursing cabs into the city of St. Louis, where foreseeability of criminal acts by third persons were known or should have been known by the defendant to have a high frequency of occurring. The apparent thrust of this allegation is that the knowledge of a “high crime area” gives rise to a duty to take precautions against intentional criminal acts. It is true that in some circumstances, one may be charged with a duty of care to take precautions to protect others from intentional criminal acts or reckless conduct of third persons. See Scheibel v. Hillis, supra (duty to prevent injury when defendant knew of vicious propensities of third person and fact that third person knew of a loaded gun kept in the home of the defendant); David v. Missouri Pac. RR Co., 328 Mo. 437, 41 S.W.2d 179 rev’d on other grounds, 284 U.S. 460, 52 S.Ct. 242, 76 L.Ed. 399 (1932) (failure to inform guard of impending robbery after defendant was notified through tip); Charlton v. Jackson, 183 Mo.App. 613, 167 S.W. 670, 671 (1914) (duty to prevent injury from reckless use of gun by third person). Such a duty arises, however, when one should realize through special facts within his knowledge or a special relationship that an act or omission exposes someone to an unreasonable risk of harm through the conduct of another. Second Restatement Law of Torts, 2d, § 302B and Comments; Prosser, Law of Torts, § 33, pp. 173-76 (4th ed. 1971).

We do not believe the facts as alleged imposed a duty of care upon the defendant to protect plaintiff’s decedent against intentional criminal acts. The allegation of a “high crime area” does not ipso facto mandate this duty. Such intentional criminal conduct on the part of unknown third persons is not reasonably foreseeable when viewed in the light of common experiences, even in “high crime areas.” As stated in Prosser, Law of Torts, supra, at 173:

“There is normally much less reason to anticipate acts on the part of others which are malicious and intentionally damaging than those which are merely negligent; and this is all the more true where, as is usually the case, such acts are criminal. Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law. . . . ”

The appellant has failed to cite us to authority, nor has our research produced law which imposes such a duty on the facts as alleged. Cf. Liljegren v. United Rys. of St. Louis, 227 S.W. 925 (Mo.App.1921) (duty to protect passenger from intentional misconduct of third person); Zuber v. Clarkson Constr. Co., supra (duty to protect public from misconduct of third persons in leaving dangerous instrumentality accessible with knowledge that people gather around the area). Therefore, we hold that as a matter of law, based upon the particular facts herein, defendant had no duty to protect plaintiff’s decedent against the intentional criminal conduct of unknown third persons.

Appellant contends that the contractual arrangement by which her decedent was associated with the defendant gave rise to an increased duty of care. It is true that certain contractual arrangements may increase one’s duty of care. See Second Restatement, Law of Torts, supra, 320B, Comment e, § B. No express agreement was incorporated into appellant’s petition, therefore, any obligation arising from the contract must be implied. The duty owed to one in a special relationship may involve a somewhat different scope than one owed to a lay persbn. See Prosser, Law of Torts, supra, at 174; David v. Missouri Pac. RR Co., supra. A master’s duty to protect a servant is at times greater when the risk involved becomes greater, but stated generally is limited by what injury is reasonably foreseeable. See Vol. 20, Mo. Digest, Master & Servant, Crandall v. McGilvray, 270 S.W.2d 793 (Mo.1954).

In the case before us, we hold the duty implied from the contractual arrangement is also limited by foreseeability and therefore is no greater than the duty owed by operation of law.

In view of our findings that as a matter of law, defendant had no duty to protect plaintiff’s decedent from intentional criminal acts of unknown third parties, it is unnecessary for us to review the other elements constituting actionable negligence. As stated above, it is fundamental to tort law, that one plead and prove the requisite elements. The failure to satisfy one is fatal to the cause of action. The order of the trial court sustaining defendant’s motion to dismiss for failure to state a claim upon which relief can be granted is affirmed.

Accordingly, judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: BILLINGS, Chief Judge.

text:
    Albert Louis ALLEN and Rebecca Allen, his wife, Plaintiffs-Appellants, v. Billy E. STOVALL and Evelyn A. Stovall, his wife, Defendants-Respondents.
    No. 10614.
    Missouri Court of Appeals, Springfield District.
    Jan. 4, 1978.
    Motion for Rehearing or Transfer to the Supreme Court was Denied Jan. 13, 1978.
    Application to Transfer Denied Feb. 8, 1978.
    L. Dwayne Hackworth, Piedmont, for plaintiff s-appellants.
    W. Dean Million, Little, Million & Teran-do, Poplar Bluff, for defendants-respondents.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Suit to quiet title to a tract of land in Carter County. Plaintiffs Albert Louis Allen and his wife, Rebecca, have appealed from a judgment entered by the trial court quieting title to the tract in defendants Billy E. Stovall and Evelyn A. Stovall, his wife, and adjudging plaintiffs have no interest therein.

Trial was to the court and under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), the judgment is to be affirmed . . unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.”

There was substantial evidence that defendants Stovall had a better title to the tract than plaintiffs Allen. The Stovalls were in possession.of the disputed property under claim of ownership and color of title and thus had a superior title as against the plaintiffs. No error of law appears. An opinion would have no precedential value.

Affirmed pursuant to Rule 84.16(b), V.A. M.R.

All concur.

Motion for Rehearing

In their motion for rehearing, or in the alternative to transfer to the Supreme Court, the appellants fault us and the trial court because the latter’s decree was silent as to other realty which was described in appellants’ petition. Consequently, appellants say, all of the issues between the parties were not disposed of by the trial court’s decree or by our opinion.

The transcript shows that when the case came on for trial the parties stipulated that only one tract described in the petition was in dispute. Appellants’ evidence was limited to the stipulated tract and respondent’s evidence was directed to the stipulated tract and a tract described in their counterclaim.

In view of the express stipulation and evidence, the trial court’s judgment ruled the issue between the parties.

Appellants’ motion for rehearing or transfer is therefore denied.


author: TURNAGE, Presiding Judge.

text:
    Richard A. BREEDING, Plaintiff-Respondent, v. Dorothy E. SHOCKLEY, Defendant-Appellant. Dorothy SHOCKLEY, Admrx., Plaintiff-Appellant, v. Richard Alan BREEDING et al., Defendants-Respondents. Richard A. BREEDING, Plaintiff-Respondent, v. Dorothy E. SHOCKLEY, Grdn., Defendant-Appellant.
    Nos. KCD 28925, 28926 and 28939.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1977.

      John J. Phillips, Independence, for defendant-appellant.
    Houlehan & Waterman, Jerome F. Waterman, Kansas City, for plaintiff-respondent.
    Before TURNAGE, P. J., and PRITCH-ARD and SOMERVILLE, JJ.
   TURNAGE, Presiding Judge.

Dorothy Shockley made application to the probate court to be appointed administra-trix of the estate of her daughter, Elwanda Breeding. She also made application to be appointed guardian of her two grandchildren. The probate court appointed Dorothy in both capacities. As administratrix Dorothy filed suit in which she alleged Richard Breeding had intentionally killed his wife and prayed that he be disqualified from receiving any marital or insurance benefits. On appeal to the circuit court the appointment of Dorothy as guardian and adminis-tratrix was set aside and her suit to disqualify Richard from realizing any benefits was dismissed because of her improper appointment as administratrix.

On appeal from all three judgments Dorothy complains only of the action of the court in setting aside her appointment as administratrix and the dismissal of her suit to disqualify Richard from benefits. Her basis is that Richard was disqualified because of the allegation he intentionally killed his wife. Affirmed.

Richard Breeding and Elwanda Breeding were husband and wife. They had two children, ages nine and seven, at the time the proceedings here were begun. In July, 1974, Richard Breeding was charged with the murder of Elwanda. While the criminal charge was pending, Dorothy made application to the probate court to be appointed the administratrix of the estate of El-wanda and the guardian of the two minor children. The application for guardianship stated Richard was under investigation for murder of the mother of the children and the children should not be in the father’s custody. The probate court entered its order appointing Dorothy as administratrix and guardian. Thereafter Dorothy filed a petition in the circuit court as administra-trix of the estate of Elwanda against Richard, Southwestern Bell and General Ameri-can Life Insurance Company. In this suit Dorothy alleged Richard and Elwanda were the owners of certain real estate as tenants by the entirety, and were also the joint owners of certain personal property. The suit further alleged the existence of a group insurance policy issued by General American Life Insurance Company on the life of Elwanda in the face amount of $18,-000 with Richard as the designated beneficiary. The suit further alleged Bell was holding $8,343.41 as a death benefit and the sum of $132.35 in back pay. This suit prayed for an order that Bell and General American pay into court the sums held by them and further prayed for a judgment declaring that Richard had intentionally killed Elwanda. The petition concluded with a prayer that Richard be disentitled to take any benefit from the assets held by Bell and General American and derive no benefit from the one-half interest belonging to Elwanda in the jointly held real and personal property.

Richard filed an appeal to the circuit court from the action of the probate court granting letters of administration and letters of guardianship to Dorothy. Richard filed a motion to dismiss as to the petition filed by Dorothy in the circuit court on the grounds Dorothy was not an authorized party to bring this suit because she had been improperly appointed administratrix.

On this appeal Dorothy does not raise any question concerning the action of the circuit court in setting aside her appointment as guardian. She has thereby abandoned any claim of error on that action. State ex rel. Beeler v. City of Raytown, 453 S.W.2d 672[2] (Mo.App.1970).

As to the action of the court in setting aside Dorothy’s appointment as administra-trix, Dorothy argues that it must be assumed that Richard intentionally killed El-wanda. She concedes there is no estate belonging to Elwanda which could require administration unless Richard is shown to have intentionally killed Elwanda. In the hearing on the appeal from the appointment of Dorothy as administratrix, Dorothy did not introduce any evidence which would show Richard had intentionally killed El-wanda. However, the court held the matter under advisement until June, 1976. At that time a certified copy of the jury verdict in the criminal case in which Richard was charged with the murder of Elwanda was filed which indicated the jury had acquitted Richard. After the acquittal was filed, the court made its finding in which Dorothy’s appointment was set aside and the suit brought by her against Richard was dismissed because of her improper appointment as administratrix.

By § 473.110.2, RSMo 1969, so far as here applicable, letters of administration shall be granted to the husband or wife unless the court believes the one entitled to serve is not competent and suitable.

Dorothy concedes the absence of evidence to show Richard was not suitable, but contends since Richard had been charged with the murder of Elwanda it must be assumed Richard did intentionally kill Elwanda. It is from this assumption that Dorothy argues Richard was disqualified and Dorothy should have been appointed administratrix.

One who would disqualify a person preferentially entitled to be appointed the administrator of an estate has the burden of proving the basis of the disqualification. 33 C.J.S. Executors and Administrators & 60, p. 967. In 4 Maus Missouri Practice— Probate Law and Procedure § 654, p. 14 (1960) it is stated “the facts relied upon to show incompetency must be clearly established.”

Dorothy does not cite any authority which would authorize an assumption that Richard intentionally killed Elwanda and is thereby disqualified from being appointed administrator. She argues that the very nature of this case dictates the appointment of Dorothy because there would be no estate of Elwanda unless Richard did intentionally kill her. This argument ignores the burden of proof cast upon Dorothy to show Richard’s disqualification. Such disqualification may not be assumed but must be proven and the burden to so prove was upon Dorothy. Because she failed to sustain her burden, there were no facts presented to the circuit court upon which to base an appointment of Dorothy as adminis-tratrix.

Dorothy argues the court wrongfully accorded conclusive effect to the acquittal of Richard to show Richard did not kill Elwan-da. While this is an interesting question, it need not be reached in this case because whether or not the court did give conclusive effect to the acquittal, still there remains no evidence to show Richard’s disqualification. The acquittal certainly did not aid Dorothy in showing Richard disqualified. Thus, it is immaterial whether or not the court considered the acquittal to be conclusive.

Dorothy concedes the dismissal of her suit against Richard in which she sought to disqualify him from participating in the ownership of any property belonging to Elwanda was proper if her appointment as administratrix fails. As indicated the removal of Dorothy as administratrix was proper under the evidence presented to the circuit court. It follows the dismissal of a suit filed by Dorothy in her representative capacity was also proper.

The judgment in all three cases consolidated on appeal is affirmed.

All concur.


author: COOPER, Justice.

text:
    Lewis E. PIRTLE et al., Appellants, v. CITY OF JACKSON, Appellee.
    Supreme Court of Tennessee.
    Dec. 19, 1977.
    Willard E. Smith, William A. Helm, Henderson, for appellants.
    Sidney Spragins, Rice & Rice, Jackson, for appellee.
   OPINION

COOPER, Justice.

This is an appeal from a decree of the Chancery Court of Madison County upholding the validity of the ordinance annexing the Bemis and north of Bemis areas of Madison County to the City of Jackson. Appellants, residents of the areas annexed, insist the ordinance was invalid in that it was procedurally defective and was unreasonable and unnecessary in consideration of the health, safety, and welfare of residents of the annexed areas and also of the City of Jackson. Appellants also insist the chancellor erred in placing entirely on them the burden of proving the invalidity of the ordinance.

The land area that is the subject of the annexation ordinance is surrounded on two sides by the city limits of the City of Jackson. Bemis, formerly a company town owned by the Bemis Bag Company, covers some 422 acres and has approximately 1,335 inhabitants. The north of Bemis area covers 87 acres and has approximately 450 residents.

T.C.A. § 6-309 provides for the annexation of territory by a municipality by ordinance, after the adoption of a plan of services for the annexed area and after notice and public hearing on the ordinance, “when it appears that the prosperity of such municipality and territory will be materially retarded and the safety and welfare of the inhabitants and property thereof endangered,” unless the territory is annexed.

T.C.A. § 6-310 grants residents of the annexed area the right to contest the annexation ordinance by a quo warranto proceeding and, with some exceptions, places upon the municipality “the burden of proving that [the] annexation ordinance is reasonable for the overall well-being of the communities involved.”

In both sections 6-309 and 6-310, the legislature undertook to exclude from affirmative duties placed on cities generally, the municipalities located in counties “having a population of not less than sixty-five thousand (65,000) nor more than sixty-six thousand (66,000) and counties having a population of four hundred thousand (400,-000) or more according to the federal census of 1970 or any subsequent federal census and counties having a metropolitan form of government.”

Madison County having a population of between 65,000 and 66,000 according to the 1970 census, the City of Jackson falls within the exclusions set forth in T.C.A. §§ 6-309 and 6-310. However, the municipality did not rely on the exclusion set forth in T.C.A. § 6 — 309, but followed the procedure placed on cities generally, when they undertake to annex territory by ordinance. Procedurally, the record shows that on December 4, 1975, the Jackson Municipal Regional Planning Commission recommended to the Board of Commissioners of the City of Jackson that it annex the Bemis and north of Bemis areas of Madison County to the City of Jackson. A plan of services for the areas to be annexed was approved by the Planning Commission on July 22,1976. Notice of public hearing before the City Commission of Jackson of the plan of services was published in the Jackson Sun on August 22, 1976. The hearing was held on September 3, 1976, and the plan of services proposed by the Planning Commission was adopted on that date. The annexation ordinance was introduced at the next regular meeting of the Board of Commissioners, which was held on September 10,1976. Notice of the introduction of the ordinance and of a public hearing to be held October 15, 1976, on the ordinance was published in the Jackson Sun on September 14, 1976. The hearing was held on the date advertised and, thereafter, the ordinance was adopted.

Appellants argue that the procedure described above was defective in that public hearing on the ordinance did not precede its introduction. We see no merit in this argument. The City of Jackson Charter (Chapter No. 167 of the Private Acts enacted by the General Assembly in 1969) provides in Section 31 that:

Every ordinance and resolution shall be introduced in open meeting of the Board of Commissioners and filed with the City Recorder. ... No ordinance may be adopted at the same meeting at which introduced before the Board of Commissioners and must be published in full in a newspaper of general circulation within the City of Jackson at least one time before adoption.

The City of Jackson followed the procedure prescribed by its Charter in adopting the ordinance and, in doing so, gave the statutorily mandated notice and held a public hearing on the ordinance before the ordinance was adopted. This meets the requirements of T.C.A. § 6-309.

The record shows that on trial of the cause, appellants sought a ruling by the chancellor that the second paragraph of T.C.A. § 6-310, set out below, was class legislation and was therefore unconstitutional.

“Except in counties having a population of not less than sixty-five thousand (65,000) nor more than sixty-six thousand (66,000) and counties having a population of four hundred thousand (400,000) or more according to the federal census of 1970 or any subsequent federal census and except in counties having a metropolitan form of government, the municipality shall have the burden of proving that an annexation ordinance is reasonable for the overall well-being of the communities involved.”

Article 11, § 9 of the state constitution states:

“The General Assembly shall by general law provide the exclusive methods by which municipalities may be created, merged, consolidated and dissolved and by which municipal boundaries may be altered.”

In Frost v. City of Chattanooga, 488 S.W.2d 370 (Tenn.1972), this court held that the foregoing constitutional provision was violated by a statute, which purported to permit a special option as to taxation in connection with annexation proceedings by the City of Chattanooga, which option was not extended to other annexing authorities by general law and which was not found to be based upon any rational basis or scheme of classification.

In the course of its opinion, the court had the following to say:

In view of these facts and this unambiguous mandatory language now a part of our Constitution, we do not hold that the Legislature could not act to alter municipal boundaries by legislation valid as a general law under the classification doctrine, but we are not able to conceive of any circumstances where such would be valid. 488 S.W.2d at 373.

No rational basis has been suggested, nor does any occur to us, to justify the exclusion of a few chosen municipalities from the burden of proving the reasonableness of their annexation ordinances when such a burden is placed upon all other municipalities by the general law of this state. We hold, therefore, that that part of T.C.A. § 6-310 set out above is unconstitutional and that the City of Jackson, along with the other municipalities in the state, has the burden of proving the reasonableness of its annexation ordinances.

This brings us to the question: Did the City of Jackson carry its burden? We find that it did. The Utility Division of the City of Jackson now furnishes the annexed areas gas service, electric service, water service, and bus service. The Bemis area, which has a sewage collection system built by the Bemis Bag Company, has been permitted to tie their system into the waste disposal system of the City of Jackson. The north Bemis area, where septic tanks are used, has a problem with sewage in low-lying areas after heavy rainfall. This condition and its attendant danger to the health of the residents of the north Bemis and nearby areas will be corrected by the installation of sewers as called for by the plan of services. Further, the record shows that on annexation, the up-to-date City of Jackson Fire Department will be substituted for the volunteer fire department now serving a large part of the annexed area; the city police department will be substituted for the limited manpower of the sheriff’s office and the private guards of Bemis Bag Company. There will be universal garbage collection rather than pick-ups by a private concern on a subscriber basis with nonsub-scribers, such as Mr. Pirtle, taking their garbage to remote areas of the county for dumping on private property with permission of the owners. In addition to the services enumerated above, the annexed areas will get building department services, housing services, and the services of the health department. We think this evidence clearly demonstrates that the annexation was logical, reasonable, and well within the discretionary authority of the Board of Commissioners of the City of Jackson.

It also is suggested by appellants that the City failed to carry the burden of showing that its annexation of the Bemis area, which is the site of the Bemis Bag Company, was not “for the sole purpose of increasing municipal revenue, without the ability and intent to benefit the area annexed by rendering municipal services, when and as needed, and when such services are not used or required by the industrial plants.” We find no basis for this position. Many municipal services are already being furnished to the residents of Bemis and the Bemis Bag Company. Further, the' uncontradict-ed evidence is that for several years, the additional revenue received by the City of Jackson as the result of the annexation will be less than the cost of carrying out the plan of service to the annexed areas.

The decree of the chancellor upholding the annexation ordinance is affirmed. Costs incident to the appeal are adjudged against appellants and their surety.

HENRY, C. J., and FONES, BROCK and HARBISON, JJ., concur.