author: SEILER, Judge. DONNELLY, Judge,

text:
    Jean JONES, Plaintiff-Appellant, v. STATE HIGHWAY COMMISSION, Defendant-Respondent.
    No. 60017.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1977.
    Respondent’s Motion for Rehearing Denied; As Modified on Court’s own Motion Nov. 14, 1977.

      James W. Jeans, Kansas City, Leon B. Seek, Harrisonville, for plaintiff-appellant.
    John W. Maupin, Jefferson City, Bruce A. Ring, Counsel State Highway Commission, Jefferson City, for defendant-respondent.
   SEILER, Judge.

Appellant Jones filed suit against the respondent state highway commission seeking damages for her personal injuries suffered in an automobile accident while traveling on one of the state’s highways. The circuit court sustained respondent’s motion to dismiss for failure to state a claim upon which relief could be granted based upon respondent’s assertion of sovereign immunity as a bar to suit. Jones then appealed to the court of appeals, Kansas City district, which in turn transferred the cause on its own order to this court due to the questions of general interest and importance involved. Mo.Const., Art. V., § 10; Rule 83.02. On the same date that the instant case was argued, we also heard argument in three other cases where the defense of sovereign immunity against tort claims was advanced: No. 59958, Prewitt v. Parkway School District, 557 S.W.2d 232, a claim against a school district where plaintiff, who was entering the building to register for a night class, slipped on a wet spot in the school hallway; No. 60012, Wheeler v. St. Clair Hospital District, 557 S.W.2d 233, a claim against a hospital district for a death growing out of a hospital fire allegedly caused by the hospital’s negligence and No. 60042, State ex rel. Racer v. Richardson, 557 S.W.2d 235, a malpractice claim against a county hospital by a patient.

The question presented is whether sovereign immunity against tort liability is to remain a defense to claims against various instrumentalities of the state, in the instant case the state highway commission.

The facts as alleged in appellant’s petition are as follows: While driving south-wardly and rounding a right hand curve on highway 71 in Jackson County, appellant’s automobile left the road and went onto its irregular and uneven shoulder which was four inches below the roadway surface. While attempting to return to the road, appellant lost control of the automobile, which then veered across the highway to the right shoulder, struck a highway sign anchored in concrete, and rolled down the adjacent embankment, resulting in severe injury to appellant.

Appellant filed her petition in the circuit court in two counts. The first count alleged negligence in design, negligence in permitting the highway to remain in a dangerous and defective condition, and negligence in failing to warn of the dangerous and defective condition. The second count alleged that the dangerous and defective conditions of the highway’s design and construction constituted a nuisance created and maintained by respondent.

We hold that sovereign immunity against tort liability is no longer a bar to such actions and reverse and remand for further proceedings.

This is not the first time we have faced the task of evaluating the argument and scholarship over the continued vitality and validity of the doctrine of sovereign immunity. Experience in the last three decades in other states shows wide support as a matter of public policy for a broad area of governmental tort liability, whether accomplished judicially or legislatively. For a review of the progress of abolition of governmental immunity see K. Davis, Administrative Law of the Seventies ch. 25 (1976 & Supp. 1977); Harley, P. and Wasinger, B., Governmental Immunity: Despotic Mantle or Creature of Necessity, 16 Washburn L.J. 12 (1976); Van Alstyne, Governmental Tort Liability: A Decade of Change, 1966 U.I11. L.Rev. 919 (1966); Comment 36 U.Md.L. Rev. 653 (1977).

Our duty is to respond to the claims which come before us in a manner consistent with the principles embedded in our constitution, statutes, and judicial precedents. This requires, on rare occasions, as it does today, that we reject an earlier rule. We conclude that it is the proper function of the court in applying the principles of a limited constitutional government to reject the rule of sovereign tort immunity and declare that the government shall be liable for its torts, consistent with the proposition that the government is not, in the American system, all powerful. This is in accord with the implicit principles manifested in the whole body of our existing positive law. We have thus determined that the dissent of Finch, J., filed in O'Dell v. School District of Independence, 521 S.W.2d 403, 409 (Mo. banc 1975), which thoroughly discusses the doctrine and the reasons for its abandonment, expresses the view we should now adopt. Accordingly, great reliance will be placed upon that dissent in the course of this opinion.

As did Judge Finch, we first address the question of whether the doctrine of sovereign immunity in tort is statutory or decisional, an inquiry crucial to the court’s authority to abolish the doctrine under the proper circumstances. Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599 (Mo. banc 1969). We are led to the conclusion that our § 1.010, RSMo 1969, which adopted the common law of England prior to 1607, the fourth year of the reign of James I, did not adopt the English common law as a substantive statute, but rather as decisional law. Therefore, assuming arguendo that the doctrine of sovereign immunity appeared in English jurisprudence prior to the fourth year of the reign of James I, we nevertheless have the authority to alter or abrogate the doctrine.

The second issue is, of course, whether the doctrine should be altered or abrogated.

Six reasons offered by English common law and Missouri cases to justify the existence of the doctrine were examined and refuted. The first justification came from the early English cases in which it was said that a suit against a governmental unit such as a town or village was actually a suit against all members of the public, as at that time such governmental units did not have corporate or quasi-corporate existence and were without corporate funds to satisfy judgments. Great inconvenience to the public would result as defendants of means who were required to pay sought contribution from other members of the public. As was pointed out, this argument has lost all forcefulness since today government units have a corporate or quasi-corporate existence and possess corporate funds.

Second, public policy as expressed in the early English cases held that it was better for the injured individual to bear a loss than the public which would then be forced to suffer an inconvenience. This concept was rejected by us in Gamier v. St. Andrew Presbyterian Church, 446 S.W.2d 607 (Mo. banc 1969).

Third, the often quoted maxim that the king can do no wrong has been offered frequently to justify the continued existence of the doctrine. Modern governmental entities cannot, however, lay claim to that inheritance.

The fourth justification declares that public officers are without authority to bind the sovereign without constitutional or statutory authorization. Moreover, the argument continues, any such ability to bind the sovereign would lead inexorably to the wasteful and dishonest dissipation of public funds. We cannot expect that plaintiffs in suits against governmental units will take on any particular personality trait any more so than plaintiffs in other tort actions. Likewise, it .cannot be expected that if government is to be subject to suit in tort that government employees will dishonestly dissipate public funds or disburse them in any fashion except in response to court judgments. Additionally we believe that government should both have the benefits of its agents’ and employees’ acts and the responsibility of them. The doctrine of re-spondeat superior, in short, should apply to government and its employees.

The fifth justification advanced is the trust fund theory. Its premise is that money which is appropriated to various governmental units is allocated to special purposes for which the funds are held in trust and that to use them to satisfy tort judgments would violate the trust. As we pointed out in Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599, 604 (Mo. banc 1969), which is cited and discussed on O’Dell supra, the rationale of this theory relates to satisfaction of a judgment, not with whether there is or should be a cause of action. It does not provide a sound basis for maintaining the doctrine of sovereign immunity.

The sixth justification is that without the doctrine, the financial stability of government will be threatened and the proper performance of government functions will be impaired. The response of Judge Finch, with which we agree, was twofold. First, it is a proper purpose of government to stand responsible for its tortious conduct. Second, there is no empirical data demonstrating that the abrogation of the doctrine will substantially impair the financial stability of government to such an extent that there will be interference with the performance of governmental functions. In addition, the prospective application of the doctrine, infra, provides a transition period, giving time for financial planning to accommodate the change. Continuation of the doctrine is not justified on the basis that financial stability of government will be threatened or proper performance of its functions impaired.

We have witnessed a chipping and whittling away at the doctrine of governmental tort immunity by the Missouri courts as applied to municipalities. Through use of the “governmental-proprietary dichotomy”, liability or non-liability of a municipality for its torts has come to depend upon the character of the act performed, not the nature of the tort. A “maze of inconsistency” has developed in suits against cities, producing “uneven and unequal results which defy understanding.”

Inherent in the governmental-proprietary theory developed by the courts, Judge Finch points out, is the tacit recognition that courts do have the power to modify the doctrine of sovereign immunity, and if there is the power to abrogate in part, there is a right to abrogate completely.

Judge Finch takes the position, with which we agree, that statutes such as § 71.185, RSMo 1969, relating to liability insurance to cover municipal liability for tort claims in connection with governmental functions, § 105.850, RSMo 1969, relating to extension of workmen’s compensation coverage to state employees, § 226.092, RSMo 1971 Supp., authorizing liability insurance to cover operation of certain highway commission state-owned automobiles and § 34.-275, RSMo 1973 Supp., doing the same as to other state-owned vehicles and vessels, some of which statutes contain disclaimer provisions that they shall not be construed as a waiver of sovereign immunity, do not constitute legislative expressions favoring general retention of sovereign immunity but rather are recognition of the desirability of providing some relief from the present hardships and inequities of the doctrine and do not in any way purport to establish the doctrine in Missouri, citing cases from California, Kansas and Nebraska supporting his view.

In short, we have considered the justifications for the continued validity of the doctrine and find them illogical and unconvincing and not compelled by constitutional mandate.

We agree with the declaration made by the Wisconsin court in abrogating sovereign immunity from tort liability in that state, Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962), that henceforth, so far as governmental responsibility for torts is concerned, the rule is liability — the exception is immunity. However, the government, of course, is not responsible for all harm to others. The removal of immunity does not impose absolute or strict liability. It subjects the government and its units, subdivisions, agencies, or bodies to the same rules as private corporations, if a duty has been violated and a tort committed. It places responsibility on the state or an agency of the state, county, municipality, or other governmental body under the doctrine of respondeat superior for injuries negligently caused by its agents, servants and employees in the course of employment.

We hold that the liability is for torts committed in the execution of activity decided upon, not for the decision itself in matters which go to the essence of governing; that our decision is not meant to impose liability upon the state or any of its agencies for acts or omissions constituting the exercise of a legislative, judicial, or executive function. So viewed, quite clearly all of the petitions in the four cases before us are sufficient to state a cause of action.

Thus far we have been dealing with immunity from tort liability. There remains the matter of immunity from suit, usually stated in terms of the sovereign not being liable to be sued without its consent. The problem is not present, however, in the instant case or companion cases.

Sec. 226.100, RSMo 1969 provides the state highway commission “may sue and be sued in its official name” and designates on whom service of process may be obtained. Sec. 206.010, RSMo 1969 provides that hospital districts “in that name may sue and be sued.” This is sufficient consent to suit. 72 Am.Jur.2d, States, Territories and Dependencies, Sec. 107, p. 497.

It is true that earlier cases of this court have held that the “sue and be sued” language does not mean the entity in question can be sued in tort, some saying that it requires a statute specifically calling for payment of damages. But these cases were written at a time when sovereign immunity in tort was the rule and must be read in that light. Now that the defense of sovereign immunity in tort is gone there is no reason to require an express assumption of tort liability or to give to the words “sue and be sued” any meaning other than the usual and ordinary one conveyed by the language used, which is that the entity in question may sue and be sued, without restriction as to kind of liability sought to be imposed.

The final matter for disposition is the timing of the effective date of the change in the rule as to governmental tort immunity. Various possible approaches are discussed by Judge Finch in the O'Dell case at 521 S.W.2d 421-22 and need not be repeated here. We believe the logical course is to postpone application of this decision to all cases other than the instant one and the three other sovereign immunity cases decided this day. In order that an orderly transition be made, that adequate financial planning take place, that governmental units have time to adjust their practices and that the legislature be afforded an opportunity to consider the subject in general, the doctrine is abrogated prospectively as to all claims arising on or after August 15, 1978, except for the cases decided today as to which abrogation applies here and now.

The judgment is reversed and the cause remanded for further proceedings not inconsistent herewith.

BARDGETT, FINCH and RENDLEN, JJ., concur.

DONNELLY, J., dissents in separate dissenting opinion filed.

MORGAN, C. J., and HENLEY, J., dissent and concur in separate dissenting opinion of DONNELLY, J.

DONNELLY, Judge,

dissenting.

There is little I can add on the law to what was said in the principal opinion in O’Dell v. School District of Independence, 521 S.W.2d 403 (banc 1975). I am not persuaded that O’Dell was wrong on the law. But the scholars will resolve that question. There is something more important to be said in this case.

Until today we enjoyed a system of government in Missouri in which the judicial department did not presume to legislate public policy. Historically, the legislative department in Missouri has represented “its polity and its will * * Hans v. Louisiana, 134 U.S. 1, 21, 10 S.Ct. 504, 33 L.Ed. 842 (1889). Today’s decision represents a blatant exercise of the legislative function by judges. It violates the letter and spirit of Article II, Section 1 of the Constitution of Missouri.

The first section of our Bill of Rights (Mo.Const. Art. I, § 1) proclaims:

“That all political power is vested in and derived from the people; that all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.”

In O’Dell, this constitutional relationship between the people and their government was given practical recognition as follows (521 S.W.2d at 407):

“ * * * In Missouri, the people are sovereign. The immunity is theirs. By adoption of our Constitution, the people of Missouri assented to be governed and established the terms of the grant. They authorized the creation of governmental entities for the performance of tasks considered essential to their general welfare. In our view, in order that such entities remain viable, it must be recognized that the immunity of the sovereign people must pass to those governmental entities which serve the public interest.”

I regret that this traditional Missouri concept has been emasculated today by judicial edict.

I do not argue that this Court is without power to change the law in this State. I do argue that the power should be exercised with some evidence of restraint. I merely submit that the question of abolishing the immunity of the sovereign people is of fundamental importance to our form of government. It should have been decided by the people or by their elected representatives and not by this Court.

I respectfully dissent.

      . As of the date of this opinion, twenty-nine states and the District of Columbia, have, by judicial decision, either completely or to varying degrees, abrogated the doctrine of sovereign immunity from tort liability. See Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971), rev’d on other grounds, sub nom. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973); Spencer v. General Hosp., 138 U.S.App.D.C. 48, 425 F.2d 479 (1969); City of Foley v. Terry, 278 Ala. 30, 175 So.2d 461 (1965); Scheele v. City of Anchorage, 385 P.2d 582 (Alaska 1963); City of Fairbanks v. Schaible, 375 P.2d 201 (Alaska 1962); Stone v. Arizona Highway Comm’n, 93 Ariz. 384, 381 P.2d 107 (1963); Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968); Muskopf v. Corning Hosp. Dist., 55 Cal.2d 211, 359 P.2d 457, 11 Cal.Rptr. 89 (1961), modified sub nom. Corning Hosp. Dist. v. Superior Court, 57 Cal.2d 488, 20 Cal.Rptr. 621, 370 P.2d 325 (1962); Evans v. Board of County Commn’rs, 174 Colo. 97, 482 P.2d 968 (1971); Colorado Racing Comm’n v. Brush Racing Ass’n, 136 Colo. 279, 316 P.2d 582 (1957); Murphy v. Ives, 151 Conn. 259, 196 A.2d 596 (1963); Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957); Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970); Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill.2d 11, 163 N.E.2d 89 (1959), cert. denied, 362 U.S. 968, 80 S.Ct. 955, 4 L.Ed.2d 900 (1960); Perkins v. State, 252 Ind. 549, 251 N.E.2d 30 (1969); Klepinger v. Board of Commr's, 143 Ind.App. 155, 239 N.E.2d 160 (1968); Brinkman v. City of Indianapolis, 141 Ind.App. 662, 231 N.E.2d 169 (en banc 1967); Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969); Haney v. City of Lexington, 386 S.W.2d 738 (Ky.1964); Board of Commissioners v. Splendour Shipping & Enterprises Co., 273 So.2d 19 (La.1973); Hamilton v. City of Shreveport, 247 La. 784, 174 So.2d 529 (1965); Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 296 N.E.2d 461 (1973); Myers v. Genesee County Auditor, 375 Mich. 1, 133 N.W.2d 190 (1965); Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1 (1961); Spanel v. Mounds View School Dist. No. 621, 264 Minn. 279, 118 N.W.2d 795 (1962); Johnson v. Municipal University of Omaha, 184 Neb. 512, 169 N.W.2d 286 (1969); Brown v. City of Omaha, 183 Neb. 430, 160 N.W.2d 805 (1968); Rice v. Clark County, 79 Nev. 253, 382 P.2d 605 (1963); Merrill v. City of Manchester, 114 N.H. 722, 332 A.2d 378 (1974); Willis v. Department of Conservation & Economic Dev., 55 N.J. 534, 264 A.2d 34 (1970); McAndrew v. Mularchuk, 33 N.J. 172, 162 A.2d 820 (1960); Hicks v. State, 88 N.M. 588, 544. P.2d 1153 (1976); Kitto v. Minot Park Dist., 224 N.W.2d 795 (N.D.1974); Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973); Becker v. Beaudoin, 106 R.I. 562, 261 A.2d 896 (1970); Kelso v. City of Tacoma, 63 Wash.2d 913, 390 P.2d 2 (1964); Long v. City of Weirton, 214 S.E.2d 832 (W.Va.1975); Holytz v. Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962); Town of Douglas v. York, 445 P.2d 760 (Wyo.1968).

      . For scholarly discussions on the nature of the contemporary judicial process, see Day, Why Judges Must Make Law, 26 Case Western L.Rev. 563 (1976); Dworkin, Hard Cases, 88 Harv.L.Rev. 1057 (1975); Hart, Law in the Perspective of Philosophy: 1776-1976, 51 N.Y.U.L. Rev. 538 (1976).

      .The full text of § 1.010 is as follows:
      “The common law of England and all statutes and acts of parliament made prior to the fourth year of the reign of James the First, of a general nature, which are not local to that kingdom and not repugnant to or inconsistent with the Constitution of the United States, the constitution of this state, or the statute laws in force for the time being, are the rule of action and decision in this state, any custom or usage to the contrary notwithstanding, but no act of the general assembly or law of this state shall be held to be invalid, or limited in its scope or
      effect by the courts of this state, for the reason that it is in derogation of, or in conflict with, the common law, or with such statutes or acts of parliament; but all acts of the general assembly, or laws, shall be liberally construed, so as to effectuate the true intent and meaning thereof.”

      . O’Dell, supra, at 410-13.

      . O’Dell, supra at 414.

      . O’Dell, supra at 414-15.

      . O’Dell, supra at 415.

      . O’Dell, supra at 415.

      . O’Dell, supra at 416.

      . O’Dell, supra at 416-17.

      . Comment, 36 U.Md.L.Rev., supra at 661-62.

      . O’Dell, supra at 417-19; 417, n. 10. Some refer to it as a system of licensed negligence. 18 St. Louis U.L.J. 602, 603 (1974).

      . O’Dell, supra at 419.

      . O’Dell, supra at 419-20.

      . The 1820 Constitution of Missouri (Art. Ill, § 25) and the 1865 Constitution (Art. IV, § 33) contained provisions that the general assembly “shall direct by law in what manner, and in what courts, suits may be brought against the State.” No such provisions appear in the 1875 or 1945 Missouri constitutions. Nevertheless, the general assembly in many instances provides in the statute creating a governmental body or entity that it may “sue and be sued.” Without undertaking a precise count, there are at least fifty such governmental agencies in Missouri, ranging from well known entities such as the Public Service Commission and State Highway Commission to obscure ones such as county agricultural and mechanical societies.

        .Page v. Metropolitan St. Louis Sewer Dist., 377 S.W.2d 348, 352 (Mo.1974); Hill-Behan Lumber Co. v. State Highway Commission, 347 Mo. 671, 148 S.W.2d 499, 500 (1964); Todd v. Curators of University of Missouri, 347 Mo. 460, 147 S.W.2d 1063, 1064 (1941); Bush v. State Highway Commission, 329 Mo. 843, 46 S.W.2d 854 (1932).


source: Caselaw Access Project

author: SEILER, Judge.

license: Public Domain

text:
    Gladys PREWITT, Plaintiff-Appellant, v. PARKWAY SCHOOL DISTRICT, Defendant-Respondent.
    No. 59958.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1977.
    Respondent’s Motion for Rehearing Denied Nov. 14, 1977.
    Burton H. Shostak, St. Louis, for plaintiff-appellant.
    W. Munro Roberts, St. Louis, for defendant-respondent.
    Terry C. Allen, Asst. Atty. Gen., Jefferson City, for amicus curiae.
   SEILER, Judge.

Plaintiff appeals from a judgment dismissing her petition for damages with prejudice on the ground her cause of action is barred by the doctrine of sovereign immunity. Plaintiff pleaded she was injured in a slip and fall on a wet floor in a school building she had entered to register for night classes. She alleged the moisture created a dangerous condition due to defendant’s negligent failure to exercise the care owed her as a business invitee and that such negligence proximately caused her injuries. In a two to one opinion, the court of appeals, St. Louis district, affirmed the action of the trial court in dismissing the petition on the ground of sovereign immunity. The case was transferred here on application of plaintiff to be considered with several other cases argued before the court on the same day concerning the question of whether governmental immunity from tort liability should be abolished.

For the reasons set forth in Jones v. State Highway Commission, Mo., 557 S.W.2d 225, handed down this same date, we hold that the defense of sovereign immunity from tort liability is no longer available as a defense in this case.

A school district is a public corporation, Kansas City v. School Dist of Kansas City, 356 Mo. 364, 201 S.W.2d 930, 933 (1947); State ex rel. Brickey v. Nolte, 350 Mo. 842, 169 S.W.2d 50, 55 (1943); School Dist. of Oakland v. School Dist. of Joplin, 340 Mo. 779, 102 S.W.2d 909, 910 (1937), and service of process thereon is provided for by § 506.150(5), RSMo 1975 Cum.Supp.

The judgment is therefore reversed and the cause remanded for further proceedings not inconsistent herewith.

BARDGETT, FINCH and RENDLEN, JJ., concur.

MORGAN, C. J., and HENLEY and DONNELLY, JJ., dissent.

      . The Parkway School District, according to the latest annual report of the State Board of Education made as required by § 161.092, RSMo 1969, consists of three high schools and five junior high schools, all in St. Louis County, One of the latter is North Junior High School, where the plaintiffs injury occurred, May 2, 1974.


author: SEILER, Judge. PER CURIAM.

text:
    John Wesley WHEELER, Plaintiff-Appellant, v. ST. CLAIR COUNTY HOSPITAL DISTRICT NO. 1, a/k/a Osceola Hospital District, d/b/a Sac-Osage Hospital, Defendant-Respondent.
    No. 60012.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1977.
    Plaintiff-Appellant’s Motion for Rehearing, or in Alternative to Modify Denied; As Modified on Court’s own Motion Nov. 14, 1977.
    Glenn Burkart, Springfield, for plaintiff-appellant.
    Robert J. Keeter, Springfield, for defendant-respondent.
   SEILER, Judge.

A summary judgment was granted defendant hospital district on its plea of sovereign immunity in this action by plaintiff for the wrongful death of his wife, a patient in the hospital, resulting from a fire which allegedly was caused by the defendant’s negligence. The court of appeals, Springfield district, affirmed the action of the trial court. On application of plaintiff, we ordered transfer. This case is one of several which were argued in this court on the same date involving the question of governmental immunity for tort liability and its disposition on this appeal is controlled by our decision handed down this same date in the case of Jones v. State Highway Commission, Mo., 557 S.W.2d 225. For the reasons there set forth, we hold that the defense of governmental immunity from tort liability is no longer available as a defense in this case.

The judgment is reversed and the cause is remanded for further proceedings not inconsistent herewith.

BARDGETT, FINCH and RENDLEN, JJ., concur.

MORGAN, C. J., and HENLEY and DONNELLY, JJ., dissent.

PER CURIAM.

Plaintiff has filed a motion for rehearing or in the alternative to modify the opinion to extend the abrogation of the defense of sovereign immunity to six other civil actions growing out of the same hospital fire from which the present case arose, all timely filed and pending in the circuit court of St. Clair County, awaiting that court’s determination of motions for summary judgments filed by defendant hospital district based upon the defense of sovereign immunity. All of these cases are for wrongful deaths. Three were filed in May-July, 1975 and the other three in November-December, 1976. The same attorneys represent defendant hospital district in the other cases as in the present case. In five of the six cases the same attorneys representing plaintiff in the present case represent plaintiffs in those cases. Counsel for plaintiff states that these six cases were “by common understanding of counsel in the trial court, permitted to remain pending on said motions for summary judgments to await appellate determination of the trial court’s sustension of the motion for summary judgment in the instant case, thereby converting the instant case into a test case, the result of which would be controlling upon disposition of the pending motions for summary judgments in said six other cases.” Counsel for plaintiff states further that the present case “was arbitrarily selected by the counsel for appellant with agreement of counsel for respondent as the case to be determined on appeal in order to expedite appellate review and minimize expense in the form of multiple transcripts on appeal, appellate docket fees, briefs and the expenditure of time.”

Counsel for plaintiff relies upon the Illinois decision of Molitor v. Kaneland Community Unit District, No. 302, 24 Ill.2d 467, 192 N.E.2d 145 (1962), which he says involves a similar situation. In Illinois in 1959 in the first Molitor case, the Illinois court abolished sovereign immunity as to school districts. The first case to be appealed involved only Thomas Molitor, one of the children who were injured in the school bus accident. The Illinois court abolished the doctrine as to the case before it but made it prospective otherwise.

Thereafter, Thomas Molitor’s three siblings and four other children sought abrogation of the defense as to their claims which had arisen out of the same school bus accident. In the second Molitor case, cited above, the Illinois court extended the abrogation to include these other cases. However, in that case the facts were that there was a clear understanding on the part of the trial court and counsel that one of the cases would go up on the question of whether or not the complaint stated a good cause of action and that would be the basis for determining the future course of the other cases as well as the one that was appealed. So the case of Thomas Molitor was selected as a test case and then when these other cases reached the court (after the trial court had ruled against the plaintiffs on basis of sovereign immunity), it in effect upheld the agreement and abrogated the doctrine as to the companion cases also. Counsel for plaintiff maintains the same situation exists here, that the instant case was to be a test case.

Counsel for defendant hospital district concedes that there are six other such cases, timely filed, with common counsel as stated by plaintiff, but is not directly responsive in his counter suggestions to the assertion made by counsel for plaintiff that there was an agreement that the present case would be a test case and that the outcome of the other cases would be decided accordingly. Counsel for respondent puts it this way: “It was agreed, between counsel in the Wheeler, Lowry and May suits, then pending, and St. Clair County Hospital District No. 1, that said motion for summary judgment would be called before the court in only the Wheeler suit and, in the event said motion was sustained, an appeal would be pursued only in the Wheeler suit.”

Hence, we are not able to say with confidence that the parties are in agreement that the situation with respect to the various claims growing out of the hospital fire and how the other cases were to be treated is the same as in the Molitor cases, namely, that it was mutually understood and accepted that the decision on the first appeal would be the basis for determining the other plaintiffs’ claims arising out of the same accident and then pending against the same defendant. On the record before us we are unable to determine whether the plaintiffs in the other six cases are entitled to relief under the circumstances. It probably will involve the hearing of evidence to determine whether there was such an agreement and understanding with reference to the other cases and such hearing, of course, should take place at the trial level with appropriate findings of fact and conclusions of law by the trial judge. If the situation is in fact comparable to what it was in the second Molitor case, then the various plaintiffs will be in a position to urge that they be treated accordingly.

The motion for rehearing or to modify is therefore overruled.


text:
    STATE ex rel. David RACER, and Betty S. Racer, Plaintiffs-Relators, v. The Honorable Orville RICHARDSON, Special Judge of the Circuit Court of Ste. Genevieve County, Missouri, Respondent.
    No. 60042.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1977.
    Respondent’s Motion for Rehearing Denied; As Modified on Court’s own Motion Nov. 14, 1977.
    John W. Reid, II, Predericktown, for plaintiffs-relators.
    Robert A. Wulff, St. Louis, for respondent.
   SEILER, Judge.

Relators originally brought an action as plaintiffs against defendant Ste. Genevieve County Memorial Hospital and its insurer, St. Paul Insurance Company, among others, for injuries allegedly sustained by Mrs. Racer while under a general anesthetic during a surgical procedure known as a dilation and curretage, performed in this instance to stop excessive and abnormal uterine bleeding. During the course of the operation, an electrocautery unit ignited a sponge which was being used to keep the cervix free of blood. The operating physician threw the burning sponge to the side and it landed on the surgical drape covering Mrs. Racer. The drape burst into flames causing serious burns. The hospital and its insurer filed a motion to dismiss. The trial judge indicated his intention to sustain the motion on the basis that the doctrine of sovereign immunity is the law of Missouri. Relators then sought prohibition to prevent respondent judge from sustaining the motion. Our provisional rule issued which we now make absolute.

For the reasons set forth in the case of Jones v. State Highway Commission, Mo., 557 S.W.2d 225, which was argued at the same time as the present case and which is being handed down this same date, we hold that the defense of sovereign immunity from tort liability is no longer available as a defense in this case.

Preliminary rule is made absolute.

BARDGETT, FINCH and RENDLEN, JJ., concur.

MORGAN, C. J., and HENLEY and DONNELLY, JJ., dissent.

With respect to immunity from suit, there is no problem because, while the statutes providing for establishment and maintenance of county hospitals are silent as to whether such hospitals can sue or be sued, § 205.160, RSMo 1969, authorizes the county court to establish public hospitals and such hospitals are operated by an elected board of trustees, five in number. See §§ 205.170, 205.180, 205.270, 205.280, RSMo 1969.

A county, even though a political subdivision of the state, is subject to suit. Section 506.150, RSMo Supp. 1975, sets forth the method of serving summons and a petition upon a county, which of course refers to the county being sued as a defendant in the case. In State ex rel. Town of Olivette v. Tel. & Tel. Co. et al., 273 S.W.2d 286, 288 (Mo.1954) it is stated that a “. . . county . . . may become a party to an action [and] suit is instituted against a county as such in its official name and character and process making the county a party in its capacity as a political subdivision of the state is had by service upon the county clerk . . . ” It follows, therefore, that a county hospital, which is not a political subdivision of the state, Stribling v. Jolley, 362 Mo. 995, 245 S.W.2d 885, 890 (banc 1952), can also be sued and service of process can be had as authorized by § 506.150(4) upon the chief executive officer of the body.

Preliminary rule is made absolute as to sustaining motion on basis of sovereign immunity.


text:
    Helen S. CLAIR, Appellant, v. Kent E. WHITTAKER et al., Respondents.
    No. 59916.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1977.

      Michael J. Gallagher, Kansas City, for appellant.
    C. Brooks Wood, Kansas City, for respondents.
   SEILER, Judge.

In this case we are called upon to interpret amended § 473.340, RSMo, Supp. 1975, which was enacted by the legislature in 1973, repealing former §§ 473.343-357, RSMo 1969, dealing with the jurisdiction of and procedure in actions in probate court for the discovery of assets. Specifically, we are asked to decide whether the jurisdiction of the probate court under § 473.340 encompasses a challenge by a residuary legatee to the validity of an inter vivos contract for the sale of personal property to which decedent’s estate would otherwise be bound.

Plaintiff-appellant Helen S. Clair (who will hereafter be referred to as plaintiff) alleges herself to be the sole legatee and devisee under the last will and testament of decedent Joseph Hampton Robinson, filed in the probate court of Jackson County, Missouri. The will was admitted to probate and letters testamentary were issued. Decedent Robinson was the owner of a majority interest of the shares of common stock of two corporations; owning 4,905 shares in Robinson Shoe Company, a Missouri corporation, and 7,018 shares in Robinson Kansas Shoe Company, Inc., a Kansas corporation. Said shares, inventoried among the Robinson estate assets, were the subject of a petition filed in the probate court by defendant-respondent executor Kent E. Whit-taker (who will hereafter be referred to as defendant) for a proposed sale of said stock to the two respective corporations under purported stock redemption agreements which, it is claimed, obligate the executor so to sell the inventoried stock.

Plaintiff’s petition alleged that the two purported agreements between the decedent and the two corporations were void and unenforceable for several specific reasons, among them that the performance of the stock redemption contracts would effect a fraud on creditors, that it would be an unreasonable restraint on alienation of the subject stock, that the execution of said contracts were ultra vires acts by the two respective shoe corporations, and that the contracts were neither executed in accordance with the statute of wills nor effectively incorporated by reference into the decedent’s will.

Plaintiff’s petition was dismissed by the circuit court of Jackson County, after which, during the pendency of this issue on appeal to the court of appeals, Kansas City district, plaintiff Clair died. One John J. Gaudio then moved to be substituted as the party appellant in the court of appeals, Gaudio being the deceased plaintiff’s personal representative in probate proceedings in the state of Colorado. In response to this motion, defendant moved that the action be abated, arguing that legatee Clair had no property interest in the stock, and since at common law and by subsequent statutes only actions for injury to property rights survive, the proceeding brought by Clair under § 473.340 remained personal to her and did not survive.

The court of appeals denied defendant’s motion to abate and affirmed the finding of the trial court that plaintiff Clair lacked standing to petition under § 473.340 as she lacked the requisite claim of title or right of possession to the specific assets in dispute. We granted plaintiff’s motion to transfer and conclude the judgment must be reversed and the cause remanded.

On the question of abatement, defendant has argued that inasmuch as plaintiff’s purported cause of action is statutory, it is personal in nature and subject to abatement upon the death of the party plaintiff. In support of this contention, defendant cites a line of cases concerning will contest proceedings wherein we refused to permit the substitution of a personal representative following the death of a challenging party. Davis v. Davis, 252 S.W.2d 521 (Mo.1952); Campbell v. St. Louis Trust Co., 346 Mo. 200, 139 S.W.2d 935 (banc 1940); Braeuel v. Reuther, 270 Mo. 603, 193 S.W. 283 (1917).

These cases are clearly distinguishable, however. A will contest proceeding is extraordinary in that it is a proceeding in rem which brings into issue whether the offered instrument is a valid testament. An action which questions a will in probate casts upon those who claim the validity of the instrument the burden of proving the same. Once the will contest has been brought

the parties thereto become of minor importance; the prime purpose of the proceeding being to determine whether there is a will or not . . . [the court] having regularly acquired jurisdiction ... . will, regardless of the parties . review the record and render judgment thereon . . . . Braeuel v. Reuther, 270 Mo. 603, 606, 193 S.W. 283, 284 (1917).

Thus we have found in Braeuel, Davis and Campbell not that a cause of action in a will contest proceeding abates but that a personal representative need not be substituted in an action in rem wherein “the parties thereto become of minor importance.”

The instant case is not analogous to a will contest proceeding. Here the sole residuary legatee seeks to challenge the validity of certain inter vivos contracts. Her interest in the estate residuum is vested and assignable. We base this conclusion upon our prior holding that the state of Missouri, as a sole residuary legatee, had “a legal and beneficial interest in the residual estate” and as such was a necessary party in an action to set aside a codicil, State ex rel. Eagleton v. Hall, 389 S.W.2d 798, 801 (Mo. banc 1965); see 6 W. Bowe & D. Parker, Page on Wills § 59.19, at 431 (1962), and upon the fact that both the court of appeals and this court have considered claims the uncontested factual basis of which involved the assignment of the interests of an estate residuary legatee. McGowan v. St. Louis Union Trust Co., 369 S.W.2d 144, 148 (Mo.1963); Gerbardt v. Miller, 532 S.W.2d 852, 855 (Mo.App.1975). One test of whether or not a cause of action abates has been whether or not it is assignable, Davis v. Davis, 252 S.W.2d 521, 522 (Mo.1952); Campbell v. St. Louis Union Trust Co., 346 Mo. 200, 206, 139 S.W.2d 935, 937 (banc 1940). Applying that test we find respondent’s contention that the cause of action has abated to be without merit.

We now address the substantive merits of plaintiff’s contention.

Section 473.340, RSMo, Supp. 1975, enacted in 1973 and under which appellant seeks to act, repealed former §§ 473.340, 473.347, 473.350, 473.353 and 473.357, RSMo 1969. The statute now reads as follows: “473.340 Discovery of assets, procedure for

“1. Any executor, administrator, creditor, beneficiary or other person who claims an interest in personal property which is claimed to be an asset of an estate or which is claimed should be an asset of an estate may file a verified petition in the probate court in which said estate is pending seeking determination of the title, or right of possession thereto, or both. The petition shall describe the property, if known, shall allege the nature of the interest of the petitioner and that title or possession of the property, or both, are being adversely withheld or claimed. The court may order the joinder, as a party, of any person who may claim an interest in or who may have possession of any such property.
“2. Service of summons, petition and answer thereto together with all subsequent proceedings shall be governed by the Missouri Rules of Civil Procedure. Any party may demand a jury trial. If the court believes there is a probability that any judgment rendered by it may be appealed, or if a jury trial is demanded, the court may, or upon application of any party shall certify, the cause to the circuit court for trial.
“3. Upon a trial of the issues, the court shall determine the persons who have an interest in said property together with the nature and extent of any such interest. The court shall direct the delivery or transfer of the title or possession, or both, of said property to the person or persons entitled thereto and may attach the personalty of any party refusing to make delivery as directed. If the party found to have adversely withheld the title or possession, or both, of said property has transferred or otherwise disposed of the same, the court shall render a money judgment for the value thereof with interest thereon from the date the property, or any interest therein, was adversely withheld. In addition to a judgment for title and possession, or either, or for the value thereof, the court may enter a judgment for all losses, expenses and damages sustained, if any, but not including attorney fees, if it finds that the property was wrongfully detained, transferred or otherwise disposed of.
“4. If the court finds that a complete determination of the issues cannot be had without the presence of other parties, the court may order them to be brought in by an amended or supplemental petition. The court shall order the joinder of the personal representative of the estate if he is not named as a party.”

This is our first opportunity to construe the statute.

Former § 473.340, entitled “Proceedings to Discover Assets, Affidavit, Citation”, provided a summary remedy for those persons who sought to recover personalty wrongfully withheld from a decedent’s estate. This was an action brought by the personal representative on behalf of the estate. Former § 473.353, entitled “Same Proceedings Against Executors or Administrators”, provided a summary remedy for interested parties against the personal representative to bring into the estate property withheld or concealed by the personal representative. In re Clinton’s Estate, 223 Mo. 371, 123 S.W. 1 (1909). Former § 473.357 authorized the owner of property which had been erroneously designated as estate property to obtain possession thereof, thus requiring that the petition allege that the decedent was not and that petitioner was the owner of the property at the date of decedent’s death.

Taken together, these sections provided a means by which property improperly included in the estate could be recovered by its owner, and property improperly excluded could be recovered on behalf of the estate, either by the personal representative or another person. None of these sections concerned the proper distribution of assets which admittedly were estate assets and properly in the possession of the executor.

Defendant contends that in repealing and amending the relevant former sections the legislature “simply effected a streamlining and consolidating of the discovery of assets procedure.” He cites the caption to the title of Laws 1973, S.B. 210 at 484, the statute of repeal and enactment, which speaks of the new law as one relating to the “same subject” as do those sections now repealed.

Then viewed against Mo. Const. Art. Ill, § 23, providing that no bill “shall contain more than one subject which shall be clearly expressed in its title, . . . ” defendant alleges that new § 473.340 clearly and simply duplicates the jurisdictional scope of the old statutes.

This view of the legislature as a housekeeper of statutes only, concerned with the consolidation of language and the “streamlining” of procedure exclusively, is one that we have rejected, State ex rel. Thompson-Stearns-Roger v. Schaffner, 489 S.W.2d 207, 212 (Mo.1973); Darrah v. Foster, 355 S.W.2d 24, 30 (Mo.1962), and we reject it now. We presume that the legislature’s action of repeal and enactment is intended to have some substantive effect such that it will not be found that it engaged in a meaningless act of housekeeping. Id.

Section 473.340 permits the filing of a petition in probate court by any “executor, administrator, creditor, beneficiary or other person who claims an interest in personal property which is claimed to be an asset of the estate . . . ” (emphasis added). Defendant argues that plaintiff, as sole legatee, has no legally cognizable property interest and hence cannot state a cause of action under the statute. It is insufficient, defendant says, to claim an interest in the estate generally; the interest shown must be in specific personal property.

We believe that the legislature intended that the interest claimed need not be a specific interest in personal property. Indeed, § 473.340(1) says that “the petition shall describe the property (in which petitioner alleges a claim) if known ” (emphasis added) and “shall allege the nature of the interest of the petitioner and that title or possession of the property, or both are being adversely withheld or claimed. . . ” We believe that the use of this language permits a petition under § 473.340 based upon a general or contingent interest.

In so interpreting § 473.340 we do not deny that the stock in issue does not pass under the residuary clause and is not a part of the residuary estate. The shoe companies were the beneficiaries under the stock redemption agreement and have an equitable interest in the stock. In Strumberg v. Mercantile Trust Co., 367 S.W.2d 535 (Mo. 1963), relied upon by defendant, we held that in a partnership agreement which called for the purchase of the other’s one-half interest within 60 days upon the death of either partner, that

in a sense, the surviving partner became the equitable owner of the interest upon the death of the other partner, subject however, to the condition that the required amount should be paid or tendered within 60 days. At any rate, it appears clear that the executor was under a duty not to treat the partnership interest in the same manner as other assets, but was required to keep such segregated and apart from the general assets of the estate while awaiting plaintiff’s compliance with his contracted obligation to purchase it. Id. at 538-39.

In Strumberg, however, there was no claim as there is here, that the inter vivos contract was void and unenforceable. Our question is not whether the shoes companies hold an equitable ownership interest in the stock, but whether the probate court’s jurisdiction should extend under § 473.340 to a challenge of the validity of the ante mor-tem instrument.

Were that challenge to fail, the stock might still pass under the residuary clause if the contracts were not performed and the Robinson estate executor did not otherwise dispose of the shares in the course of his administration of the estate. Thus the interest of the residuary legatee, though contingent, is a present interest for purposes of standing in probate court under § 473.340 to challenge the validity of an inter vivos stock redemption agreement the subject of which will otherwise pass outside the residuum in the nature of a specific bequest. In State ex rel. Cooper v. Cloyd, 461 S.W.2d 833, 838 (Mo. banc 1971) we held that the holders of a contingent remainder of a testamentary trust had a sufficiently “protect-able”, though not possessory, interest to grant them standing to contest decedent’s will under § 473.083, RSMo 1969, which requires only that persons be “interested in the probate of a will” to have standing. See Canada v. Daniel, 175 Mo.App. 55, 157 S.W. 1032 (1913). In McCaleb v. Shantz, 318 S.W.2d 199, 203 (Mo.1958), we held that a residuary devisee had standing to challenge the legality of a specific devise in a suit seeking construction of a will. We do not suggest that plaintiff’s interest in the instant case balances the equitable ownership interest of the shoe companies which are beneficiaries under an inter vivos contract, but rather conclude that plaintiff’s stakes, however slight here, are adequate under the statute to state a claim. Without standing, plaintiff would be forced to contest the validity of the contract outside the aegis of the probate court. We believe it was just such a situation which compelled the legislature to enact § 473.340, putting before the probate court all petitions of anyone who “claims an interest” in property inventoried in the estate. The interests of judicial economy are thereby advanced.

The judgment is reversed and the cause is remanded for further proceedings consistent herewith.

MORGAN, C. J., BARDGETT, FINCH, DONNELLY and RENDLEN, JJ., and KELLY, Special Judge, concur.

HENLEY, J., not sitting.

      . In State ex rel. Meletio v. Hensley, 358 S.W.2d 85 (Mo.App.1962) the court found a petition under § 473.357 defective in that it failed to allege that the petitioner, and not the decedent, was the rightful owner of the disputed property at the time of the latter’s death. Such an allegation is no longer required under § 473.340 Supp. 1975 under which the instant case was brought. Respondent’s reliance upon Meletio is therefore misplaced.


author: RENDLEN, Judge.

text:
    STATE of Missouri ex rel. SAFETY AMBULANCE SERVICE, INC., a corporation, Relator, v. The Honorable Byron L. KINDER, Judge of the Circuit Court of Cole County, Missouri, Respondent.
    No. 59714.
    Supreme Court of Missouri En Banc.
    Nov. 14, 1977.
    William L. Hess, Kansas City, for relator. Harvey M. Tettlebaum, Jefferson City, for amicus curiae State of Missouri.
    William E. Stoner, Springfield, for respondent.
   ORIGINAL ACTION FOR PROHIBITION

RENDLEN, Judge.

Prohibition to direct respondent Circuit Judge of Cole County, to quash the writ of mandamus issued July 1, 1976, in State ex rel. Safety Ambulance Company, Inc. v. Missouri Division of Health, et al., No. 28182 and desist from enforcing the same against the Missouri Division of Health.

The principal question for determination is whether Missouri’s recently enacted ambulance licensing law, Sections 190.100 through 190.195, effective July 1, 1974, implicitly permits issuance of licenses to those ambulance operators in business prior to the effective date of the Act, without a hearing to determine the “public convenience and necessity.” Such provisions, not uncommon in the law, allowing special dispensation to going businesses when statutory changes occur are known colloquially as “grandfather” clauses.

Relator, Safety Ambulance Service, Inc. (hereinafter Safety), owned and operated an ambulance service’ in the Springfield-Greene County area for about thirteen years prior to the effective date of the Act. Continuing operations during 1974, Safety applied to the Missouri Division of Health and was issued a license in January, 1975, on the Division’s administrative determination that Safety had been in business on the effective date- of the Licensing Law and was entitled to the benefits of the “grandfather” provision implicit therein. About nine months later A1 Miller, d/b/a Action Emergency Ambulance (hereinafter Miller) of Greene County, was issued a “grandfather” license by the Division. Safety promptly petitioned the Circuit Court of Cole County, in Case No. 28182, for mandamus and review of the Division’s issuance of Miller’s license, contesting the fact of Miller’s operation prior to July 1, 1974 and his entitlement to protection of the “grandfather” provision. By Count I, Safety sought mandamus to require that respondent, Division of Health, withdraw Miller’s license and require notice, hearing and finding of public convenience and necessity, prior to issuance of any new license. By Count II, Safety sought injunction to restrain Miller from operating an ambulance service in Greene County under the “void” license and by Count III a review of the Division’s ruling under Chapter 586, RSMo 1969, and for suspension of “any purported power granted by said license.”

The court, proceeding on Count I, issued its alternative writ of mandamus to the Division of Health, return was made to which Safety replied, the cause was set and without Miller or his counsel present, evidence was adduced and the matter taken under advisement January 16,1976. Miller, though not a party to Count I had previously moved to dismiss Counts I, II and III, but that motion does not appear to have been ruled. On January 13, Miller’s motion for a legislative continuance was sustained as to Counts II and III, but denied as to Count I because, according to the court, Miller had not “pleaded to” and was “not a party” to the action on that Count. At the January 16 hearing, Safety presented evidence concerning Miller’s application plus evidence pointing up the paucity and conflicting nature of the information on which the “license officer” acted when determining Miller was doing business on the effective date of the Licensing Law. On June 15, 1976, the City of Springfield which also operated an ambulance service in the area, was permitted to intervene, and on that date the court issued its peremptory writ, finding Safety was “an interested party pursuant to Chapter 190” and that:

“this court having heard the evidence thus finds from the evidence that the acting [sic] of respondents in issuing a State Ambulance License to A1 Miller d/b/a Action Emergency Ambulance for the territory of Green [sic] County, without notice, hearing, and finding of public convenience and necessity was beyond the scope of their ministerial duties and duties as licensing agents for the Missouri Division of Health, and in excess of Stat-utatory [sic] power granted to them as licensing agents and officers.”

Miller’s license was voided and the Division was ordered to conduct a hearing as to the public convenience and necessity on Miller’s application.

From this it is not clear if the court ruled the hearing was required because (1) there is no implied grandfather provision in the statute; or (2) there is a grandfather provision but from the evidence Miller was shown not to have been operating an ambulance service on July 1, 1974.

Ten days later, Miller moved to amend the writ, and without further notice or hearing the court on July 1, issued its amended peremptory writ of mandamus, finding that respondent, Division of Health, acted in excess of its authority by granting the license to Miller and then, quite beyond the scope of the pleadings and evidence, voided the licenses of relator, the intervenor City of Springfield, and the Lester E. Cox Medical Center of Springfield. (The Cox Medical Center was neither a party nor otherwise involved in that action.) The Division was ordered to immediately schedule hearings as to public convenience and necessity for the four named licensees (now presumably mere license applicants). Though again the court did not make clear why the hearings to determine “convenience and necessity” were required, it was uncontrovert-ed that Safety had continuously operated many years prior to the effective date of the Act and if the statute permitted grandfather licensing, Safety qualified. From this we conclude the basis for the court’s decision was its interpretation of the Act as not containing an implied grandfather provision.

Complaining of the court’s action, Safety petitioned this Court for prohibition to require respondent to quash its amended writ and to desist from enforcing the same against the Division of Health. Our provisional rule issued.

The question is raised whether prohibition lies or is relator’s remedy appeal? By the peremptory writ respondent disposed of the issues in Count I but those of Counts II and III remained, requiring further proceedings to determine the question of the injunction and restraining orders as to Miller. The order was not appealable as respondent did not designate it a final judgment for that purpose. Rule 81.06. Further, when as here the action of the court sought to be prohibited is neither complete nor self-executing, see State ex rel. Templeton v. Seehorn, 208 S.W.2d 789 (Mo.App.1947), prohibition may be invoked to restrain the enforcement of such orders if beyond or in excess of the authority of a judge and to keep a court within the compass of its jurisdiction. State ex rel. Vogel v. Campbell, 505 S.W.2d 54, 58 (Mo.banc 1974). Respondent, by mandamus, attempted to void the Division’s prior action awarding Safety its license when the issue as to that action was neither raised nor suggested in pleadings or proof. The issue was not before the court for adjudication, thus its ruling, reaching beyond the issues, was cor-am non judice and void to the extent it purports to revoke Safety’s license and require a hearing by the Division of Health Services. Bayer v. Associated Underwriters, Inc., 402 S.W.2d 11, 13 (Mo.App.1966). We find the trial court exceeded its jurisdiction in the particulars described above and for this reason as well as those hereinafter discussed, prohibition lies and our provisional rule will be made absolute.

Respondent’s order of July 1 1976, affecting the four named licensees, stems from his erroneous conclusion that the Ambulance Licensing Law contains no implied grandfather clause. While the Licensing Law, §§ 190.100 through 190.195 contains no express grandfather clause, we conclude such provision is implicit in the Act and we discern no legislative intent to require hearings to determine public convenience and necessity for ambulance services in operation on July 1, 1974. Conversely we determine that provisions requiring such hearings do extend to “proposed” ambulance services commencing business after the effective date of the Act.

Section 190.125.1 requires that “The license officer shall, upon receipt of an application for an ambulance license . cause such investigation as he deems necessary to be made of the applicant and of his proposed operations.” (Emphasis added.) Subsection 2 provides: “The license officer shall issue a license hereunder for a specified ambulance, to be valid for a period of one year, . . . when he finds, upon proper notice and hearing: (1) that the public convenience and necessity require the proposed ambulance service;” (Emphasis added.) The use of the term proposed in both subsections indicates such hearings and findings are required only as to prospective ambulance businesses not then in service. This interpretation is reinforced by the terms of § 190.170, which delineate procedures for hearings, investigations, notices and appeals. Subsection 190.170.4 provides:

“A hearing shall be afforded any applicant seeking a license, the issuance of which requires a finding concerning the public convenience and necessity. Notification by regular mail of each hearing shall be sent to all interested parties including ambulance operators already licensed for service in the area affected by the applicant. Notification shall be mailed at least ten days prior to the hearing.” (Emphasis added.)

The emphasized language in effect states that issuance of licenses in some situations does not require findings concerning public convenience and necessity, and that hearings are mandated only as to those that do. Thus hearings are not necessary as to license applications where no such finding is required. Respondent, in oral argument, conceded the language of § 190.170.4 indicates that certain classes or types of license applicants need not be afforded hearings because no “finding concerning the public convenience and necessity” is required as to such class. Though conceding such exempt class is recognized by the subsection respondent insists that it is limited, relating only to drivers, attendants, technicians and similar applicants. However, nothing in the statute requires such narrow construction. The class in subsection 4 is described only in the most general terms, demonstrating a legislative intent sufficiently broad to include not only the list suggested by respondent but also permit inclusion of ambulance license applicants in service on the effective date of the Act. This interpretation is in harmony with and supportive of the previous analysis that only “proposed” or new ambulance services require hearings of convenience and necessity under § 190.125.

It is appropriate that we examine the undergirding purpose of the hearing requirement in the statute. Why, we ask, is a hearing and finding of public convenience and necessity required as a precondition to the issuance of licenses for proposed ambulance services? Operators of existing services may appear at such hearing and demonstrate under § 190.170.5 that they will be able to meet any additional need of the area to be served. Clearly the primary purpose of such hearing is to determine whether need exists. If a going business was serving an area on July 1, 1974, the fact of need is self-evident. The reason for a determination of convenience and necessity having been satisfied, the legislature cannot have intended the Division to perform an unnecessary act. As noted, when an applicant proposes to begin or bring new service to an area currently served by others, the hearing under § 190.170.5 examines for “the additional need in the area to be serviced,” and grandfathered operators are given the opportunity to fill the need, and to exclude the proposed operator. This is consistent with our statutory interpretation discussed above.

Finally, practical considerations compel such interpretation. From oral argument we learned that seven hundred and five ambulance vehicles were operating in Missouri on July 1, 1974, and approximately six hundred and twenty are now licensed under the Act. Section 190.180 prescribes severe penalties for violation or failure to comply with the provisions of the Act, with each day’s violation constituting a separate offense. Section 190.105 mandates that no person shall operate or otherwise be engaged in the ambulance business upon public streets or highways of Missouri unless “he holds a currently valid license for an ambulance”. If grandfather licenses had not been permitted, existing ambulance services would have been barred from operation during the period required for the hearing process. One can readily perceive the disruptive effect to service and the resulting financial loss to operators during a period of enforced idleness occasioned by such proceedings. We cannot believe the legislature intended such a threat to the quality and availability of ambulance service to say nothing of the Division’s capacity (or lack thereof) to process such volume in an expeditious manner.

The specter of disrupted service reaches the absurd when considering problems of license renewals if respondent’s interpretation of the statute were adopted. Section 190.160 provides “The renewal of any license shall require conformance with all the requirements of sections 190.100 to 190.-195 [the Act] as upon original licensing.” (Emphasis supplied.) Under § 190.125.2 ambulance licenses are valid for only one year (unless earlier terminated) and on expiration renewals are processed as original applications under § 190.125. If, as respondent contends, there is only one type of “original” ambulance licensing, which in every case would require hearing upon proper notice and a determination of convenience and necessity, that requirement would extend to all renewal applications. Intolerable results, of the sort we now describe would ensue: Assume three licensed ambulance services, A, B and C operated in a described area. (In the case at bar at least four such businesses operate in Greene County.) Assume further A’s license expires April 30, B’s July 31 and C’s December 31, and that on expiration of his license, A applies for renewal. Under the scheme insisted by respondent, prior to a finding of convenience and necessity which would be a prerequisite for A’s renewal, B and C, could effectively block the renewal of A’s license. This because, B and C, as operators “currently licensed in the area to be serviced by the applicant” would be entitled “to satisfy” the license officer “that they will be able to meet the additional need in the area” and from the preferred position afforded them by 190.170.5, effectively thwart A’s application and in the months following absorb his lost share of the market. When B’s license expires July 31, the process would repeat itself and C, by expanding his service to the satisfaction of the license officer would block B’s renewal. Thus A would be effectively shelved for eight months and B for five, until the expiration of C’s license December 31. This situation becomes more bizarre when C applies for renewal. No other operators would then be servicing the market and C could contend that he has a right to continue as the exclusive operator in the area, but at his hearing all other applicants, including A and B (assuming they sustained an interest in serving and were solvent) could appear and from the resulting tangle the Division would be called to somehow determine the public convenience and necessity and apportion the market among those applying or throw up its hands and admit all comers. Few businesses could long survive such a recurrent disorderly process. Such a scheme could not have been intended as it would serve to defeat the legislative intent of promoting efficient ambulance and health service in the state.

We presume the legislature did not intend to enact an absurd law, State ex rel. American Manufacturing Company v. Koeln, 278 Mo. 28, 211 S.W. 31, 33 (banc 1919), and in construing the Act “We look to the circumstances and usages of the time; we seek to promote the purposes and objects of the statute and to avoid any strained and absurd meaning.” Springfield General Osteopathic Hospital v. Industrial Commission, 538 S.W.2d 364 (Mo.App.1976). As stated in State ex rel. Missouri Power and Light Co. v. Riley, 546 S.W.2d 792 (Mo.App.1977), “[The] laws are presumed to have been passed with a view to the welfare of the community.” [1. c. 796] This is not to say the court may capriciously ignore the plain language of the statute “but in determining what the language really means we may consider the entire purpose and policy of the statute and ‘the language in the totality of the enactment’ and construe it in the light of ‘what is below the surface of the words and yet fairly a part of them’.” State ex rel. Henderson v. Proctor, 361 S.W.2d 802, 805 (Mo.banc 1962). The legislative act must be considered in its entirety and all provisions harmonized, if reasonably possible. Guided by these principles, we conclude the Licensing Law does not require a hearing concerning the public convenience and necessity as to ambulance license applications, whether original or renewal, for those operators in business and providing service on July 1, 1974, and continuously thereafter. Further, the “grandfather” provision would extend to any new service when duly licensed following hearing and determination of the public convenience and necessity.

Respondent is prohibited from enforcing the peremptory writ of mandamus issued July 1,1976 and directed to quash the same. Further proceedings may be had in the cause not inconsistent herewith. Our provisional rule as modified hereby is made absolute.

BARDGETT, HENLEY, FINCH, DON-NELLY and SEILER, JJ., and STEWART, Special Judge, concur.

MORGAN, C. J., not sitting.

      . Among the named defendants-respondents are Carl Rutledge, Assistant Director of Bureau of Emergency Medical Services, and A1 Miller, d/b/a Action Emergency Ambulance. Rutledge testified he was the duly appointed “licensing officer” under the Act as that term is defined in subsection 190.100(8).
      All statutory references are to RSMo Supp. 1975, unless otherwise indicated.

      . The new statute regulates “Ambulances, Ambulance Personnel and Emergency Treatment”, however, sections pertinent to this proceeding are those relating to ¡¡censing of ambulances. For convenience, the statute will be referred to as the “Licensing Law” or the “Act”.

      . It is not disputed that the determination of the license officer issuing Miller’s license is appealable by relator as “an adversely affected party” within thirty days of issuance under § 190.170(7), which provides:
      “All rulings by the board, license officer or health officer may be appealed by the adversely affected party within thirty days of issuance. The appeal shall be filed with the circuit court of Cole county, Missouri, pursuant to the provisions of chapter 536, RSMo.”
      This suggests several questions not answered here: (1) What other actions of the license officer constitute “rulings” under subsection 190.170(7)? (2) What are the requirements of notice to adversely affected parties? (3) How does notice or lack thereof affect the thirty day filing period?

      . This does not relieve existing ambulance services from meeting the equipment, safety, financial, personnel, insurance and other requirements of Chapter 190.

      . § 190.170.5 provides: “Prior to a finding by the board, license officer or health officer that the public convenience and necessity will be served by the issuance of a license to the applicant, all ambulance operators currently licensed in the area to be serviced by the applicant shall be given thirty days to satisfy the board, license officer or health officer that they will be able to meet the additional need in the area to be serviced not later than sixty days from the date of the denial of the applicant’s license.”


author: BARDGETT, Judge. DONNELLY, Judge,

text:
    Norman A. GARRISON, Jr., Guardian of Lila Annjonette Garrison, Norman Asa Garrison, III, and Candice Michelle Garrison, Estate No. 18,232 of the Chancery Court of Alcorn County, Mississippi, Appellant, v. Don S. JONES, Administrator of the Estate of Lee Ann Garrison, Estate No. 11,912 of the Probate Court of Dunklin County, Missouri, Respondent.
    No. 60169.
    Supreme Court of Missouri, en banc.
    Nov. 14, 1977.

      John W. Reid, II, Fredericktown, for appellant.
    Robert H. Jones, Kennett, for respondent.
   BARDGETT, Judge.

The Missouri court of appeals, Springfield district, filed an opinion affirming the circuit court order which dismissed plaintiff-appellant’s suit with prejudice. Thereafter this court sustained appellant’s motion to transfer.

In October 1974 the plaintiff filed a petition in the circuit court of Pemiscot county entitled, “Petition for registration of foreign guardianship; action to permit nonresident guardian to remove the property of the non-resident wards to the state of residence of the guardian and wards; and to manage the real estate of the non-resident wards located in the State of Missouri”. In December 1974 defendant-respondent filed a motion to dismiss plaintiff’s petition asserting eleven grounds, one of which was that the exclusive jurisdiction of the action was in the probate court of Dunklin county and, therefore, the circuit court lacked jurisdiction. The court held a hearing and received evidence on defendant’s motion to dismiss plaintiff’s petition beginning March 10, 1975, which was then taken under advisement. No answer was ever filed by defendant. On March 24, 1975, plaintiff filed “Motion by Plaintiff to Dismiss”, as follows:

“The Plaintiff has filed his petition in the above-entitled cause against the Defendant who has filed a motion to dismiss wherein it is alleged that jurisdiction lies in the Probate Court.
“WHEREFORE, plaintiff moves that his Petition may stand dismissed without prejudice to the bringing of another action concerning any of the matters involved therein, with costs to be taxed against Plaintiff.”

Then, on March 28, 1975, the defendant filed, “Defendant’s withdrawal and abandonment of paragraph 2 of Defendant’s motion to dismiss”, as follows:

“Comes now Defendant, Don S. Jones, and hereby abandons and withdraws paragraph 2 of Defendant’s Motion to Dismiss, said abandoned paragraph being as follows:
“ ‘2. Defendant is under the exclusive jurisdiction of the Probate Court of Dunklin County, Missouri, and this Court does not have concurrent jurisdiction with the Probate Court of Dunklin County in the matter set forth in said petition; therefore, this Court has no jurisdiction over the subject matter or the Defendant.’ ”
“Defendant in all other respects hereby re-alleges and re-affirms the other grounds alleged in said Motion to Dismiss.”

On April 15, 1975, the court entered the following order:

“Plaintiff’s Motion for an order allowing the Plaintiff to dismiss this action without prejudice being duly submitted to the Court by the attorneys for Plaintiff and the attorneys for Defendant and the Court being fully advised in the premises overrules and denies Plaintiff’s Motion as said Motion was not timely filed and such dismissal would be prejudicial to Defendant.
“Plaintiff’s Motion for an order allowing the Plaintiff to add party being duly submitted to the Court by the attorneys for Plaintiff and the attorneys for Defendant and the Court being fully advised in the premises overrules and denies Plaintiff’s Motion to add party.
“Defendant’s Motion to Dismiss Plaintiff’s Petition and each and every count thereof having been heretofore submitted to the Court, evidence adduced and said cause having been taken under advisement and the Court having seen and heard the pleadings, evidence adduced and being fully advised in the premises does herein and hereby sustain Defendant’s Motion to dismiss Plaintiff’s Petition and all counts thereof and does hereby consider, order and adjudge that the Plaintiff’s Petition and each and every count thereof shall be and is hereby dismissed with prejudice to the Plaintiff and at the cost of Plaintiff.”

Plaintiff appeals from the order dismissing the petition with prejudice contending (1) the trial court erred in denying plaintiff’s request for dismissal without prejudice and sustaining defendant’s motion to dismiss with prejudice because Rule 67.01 permits a plaintiff in a civil action to dismiss his petition without prejudice without a court order anytime before the introduction of evidence, and (2) the trial court erred in denying plaintiff’s request for dismissal without prejudice and sustaining defendant’s motion to dismiss with prejudice because the trial court did not have jurisdiction of the subject matter.

Rule 67.01, as amended effective September 1, 1973, provides: “A civil action may be dismissed by the plaintiff without prejudice without order of court any time prior to the introduction of evidence. After the introduction of evidence is commenced, a plaintiff may dismiss his action without prejudice only by leave of court or by written consent of the adverse party. Leave of court shall be freely granted when justice so requires. A party who has once so dismissed a civil action and thereafter files another civil action upon the same claim shall be allowed to dismiss the same without prejudice only (1) upon filing a stipulation to that effect signed by the opposing party; or (2) on order of the court made on motion in which the ground for said dismissal shall be set forth.”

The amended rule changed the time during which a plaintiff could dismiss his petition without prejudice as a matter of right from the final submission stage forward to any time prior to the introduction of evidence. The stage of the proceedings described in Rule 67.01 as “prior to the introduction of evidence” refers to the introduction of evidence at the trial of the cause on the merits. It does not refer to hearings on pretrial motions or the introduction of evidence with respect to such motions. The hearing at which evidence was introduced in the instant case was a hearing on the pretrial motion of defendant to dismiss plaintiff’s petition. Defendant had not filed an answer and, therefore, the case was not even at issue and that was the stage of the proceedings when plaintiff filed the motion to dismiss without prejudice set forth supra.

The function and purpose of the second paragraph of plaintiff’s motion to dismiss was to effect the dismissal of the petition without prejudice which plaintiff had the right to do without consent of the court or defendant pursuant to Rule 67.01. The recitation in the first paragraph of plaintiff’s motion of one of the grounds asserted in defendant’s motion to dismiss was superfluous. The dismissal by plaintiff prior to the introduction of evidence does not require a court order to be effective. However, it may be that the circuit court would enter such an order as an administrative act in connection with any appropriate orders with respect to assessment of costs.

Plaintiff-appellant had the right to dismiss the petition without prejudice at the time such was done in this case. That dismissal rendered the subsequent order of the circuit court, which overruled plaintiff’s motion to dismiss without prejudice and sustained defendant’s motion to dismiss with prejudice, a nullity.

The order of the circuit court overruling plaintiff’s motion to dismiss without prejudice and sustaining defendant’s motion to dismiss and dismissing plaintiff’s petition with prejudice is reversed and the cause is remanded with directions to the circuit court to make the appropriate entry in the circuit court file in this case showing the cause to be dismissed by plaintiff without prejudice at plaintiff’s costs.

MORGAN, C. J., and FINCH, RENDLEN and SEILER, JJ., concur.

HENLEY, J., concurs in result.

DONNELLY, J., dissents in separate dissenting opinion filed.

DONNELLY, Judge,

dissenting.

I adopt that portion of Judge Flanigan’s opinion in the Srpingfield District of the Court of Appeals which reads as follows:

“For his second point plaintiff claims that the trial court’s order of April 15 was erroneous ‘because Rule 67.01 permits a plaintiff in a civil action to dismiss his action without prejudice without a court order any time before the introduction of evidence.’ Plaintiff’s second point lacks merit for the reason that he did not avail himself of Rule 67.01. The peculiar document which he filed on March 24 did not purport to be a dismissal, and plaintiff makes no claim that it was a dismissal. It was a motion for an order of dismissal based on the anomalous ground that the defendant had filed a motion claiming that the court lacked subject matter jurisdiction.

“The trial court cannot be convicted of error in overruling such a motion. The ground contained in the motion was an insufficient one. The duty of the court to dismiss for lack of jurisdiction over the subject matter springs only from that lack and not from the fact that defendant’s motion asserted the existence of such lack. Moreover, if plaintiff, before the introduction of evidence, desired a dismissal, he could have accomplished his purpose without court order and the court should not be convicted of error for overruling a motion which stated no valid ground and was totally unnecessary. If the court lacked subject matter jurisdiction (whether or not defendant’s motion so claimed) the court was under a duty to dismiss.”

I respectfully dissent.


author: HENLEY, Judge.

text:
    Bradford R. JONES, Appellant, v. Donald WYRICK, Warden, Missouri State Penitentiary, Respondent.
    No. 59877.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1977.

      Roy W. Brown, Kansas City, for appellant.
    Neil McFarlane, Asst. Atty. Gen., Jefferson City, for respondent.
   HENLEY, Judge.

This is an appeal from an order denying relief to Bradford R. Jones (appellant), a prisoner in the Missouri penitentiary, who sought to enjoin the Warden thereof from transferring him temporarily to the custody of officers of Johnson County, Kansas, pursuant to § 222.160, RSMo Supp. 1971.

Appellant is a prisoner in the Missouri penitentiary under authority of commitments issued by the circuit court of Jackson County, Missouri, based upon sentences imposed after his conviction in that court of three felonies in as many cases. Appeals from the judgments in those cases were to the Missouri Court of Appeals, Kansas City district, and were pending there under submission when this case was submitted to this court. The amount of an appeal bond was set by the trial court in each of the Jackson county cases for admission of appellant to bail, but appellant was unable to post bond.

On June 14, 1976, a detainer was placed against appellant at the Missouri penitentiary upon request of appropriate authorities of Johnson County, Kansas. On June 17,1976, those authorities sought temporary custody of appellant under § 222.160, supra, for the purpose of prosecution of felony charges pending against him in that state and county.

On September 13,1976, appellant filed in the circuit court of Cole county a motion seeking to enjoin the Warden from transferring him to the custody of the Kansas authorities. On the same day, the trial court issued its order staying transfer of appellant’s custody until final disposition of the proceedings commenced by appellant’s motion. On October 27, 1976, a hearing was had on the motion, at the conclusion of which it was overruled. The order staying transfer was continued in force by order of the trial court pending disposition of the appeal in this case and final determination of the proceedings.

Two points are raised on this appeal. The first is that the court erred in denying the relief sought by his motion, because § 222.160, supra, denies him procedural due process guaranteed by the state constitution and the fifth and fourteenth amendments of the U. S. Constitution in that it fails to provide for judicial review of the proceedings for transfer.

Appellant acknowledges his awareness of this court’s decision in McQueen v. Wyrick, 543 S.W.2d 778 (Mo. banc 1976) which was heard before but was not decided until after the trial court’s decision in this case. In McQueen we construed § 222.160, supra, “so as to make available to persons transferred under its provisions procedures similar to those afforded to persons transferred under § 548.051,” and to make available a “limited right of judicial review.” 543 S.W.2d at 782. Appellant requests that the court apply in this case the directives of the McQueen case. Being of the opinion that the procedures outlined in McQueen meet the due process requirements of the state and federal constitutions referred to by appellant, we will, as appellant requests, remand this case for further proceedings in accordance with that' decision.

Appellant’s second point is that the court erred in denying him the relief sought, because he is not “a prisoner * * serving a term of imprisonment” within the meaning of Article IV of the Agreement on Detainers (§ 222.160, supra) and, therefore, is not required to be made available to Kansas authorities. His reasoning is that he is not such prisoner because the Jackson county judgments sentencing him to imprisonment are not final for the reason his appeals from those judgments are still pending.

Article I of the Agreement on Detainers states the policy and purpose of this state and others party thereto to be “to encourage the expeditious and orderly disposition of [outstanding] charges [against a prisoner] and determination of the proper status of any and all detainers based on untried indictments, informations and complaints * * *, [and to provide] cooperative procedures” to implement that policy and purpose. To that end, it is necessary that the Agreement be liberally construed.

Execution of the sentences of imprisonment imposed by the trial court was not stayed or suspended by reason of his appeals. The sentences would have been stayed by the appeals had appellant met the conditions for his admission to bail pending appeal, Rule 28.10(2), but he did not. He obviously is a prisoner in the penitentiary where he is serving a term of imprisonment. The fact that the judgments sentencing him to imprisonment are pending on appeal does not, for the reason stated, alter the obvious. He is a prisoner serving a term of imprisonment within the meaning of the Agreement on Detainers.

He also contends that because his appeals in the three Jackson county cases are still pending, the decision as to whether he may be delivered to the custody of Kansas authorities “is in the power of the Governor [of Missouri] and no other,” as provided in § 548.191; that in this respect § 222.160 conflicts with § 548.191. A somewhat similar provision as that quoted from § 548.191 is contained in § 222.160. There is no conflict and the time within which the governor of this state may act under the proviso of § 1, Article IV of § 222.160, has ended without action. Furthermore, § 4 of Article IV provides that delivery of appellant to the custody of Kansas authorities may not be denied “on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery.” There is no substance to or merit in appellant’s last contention.

The judgment is reversed and the case is remanded for review in accord with McQueen v. Wyrick, supra.

All concur.

      . The “Agreement on Detainers” law.

      . These judgments were affirmed by the Court of Appeals August 29, 1977, in its cases numbered KCD 28583, KCD 28667 and KCD 28868. Appellant’s motion for rehearing or, in the alternative, to transfer to this court were overruled and denied in each case on October 11. Applications to transfer filed here October 25 in our cases numbered 60425, 60426 and 60427 were denied the date this opinion was filed and the judgment of conviction in each of these cases is now final.

      . References to Rules are to Missouri Supreme Court Rules. Compare: §§ 547.130 to 547.160, RSMo 1969. References to sections of the statutes are to that revision except where otherwise indicated.

      . Section 548.191 is as follows: “If a criminal prosecution has been instituted against such person under the laws of this state and is still pending, the governor, in his discretion, either may surrender him on demand of the executive authority of another state or hold him until he has been tried and discharged or convicted and punished in this state.”

      . Article IV, § 1, of § 222.160 is, in pertinent part, as follows: “ * * * provided further that there shall be a period of thirty days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.”


author: RENDLEN, Judge. DONNELLY, Judge, SEILER, Judge,

text:
    Lawrence K. EPPLE, Jr., et al., Respondents, v. WESTERN AUTO SUPPLY COMPANY et al., Appellants.
    No. 59683.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1977.
    Paul S. Brown, St. Louis, for appellants.
    Alan G. Kimbrell, St. Louis, Jerome W. Seigfried, Mexico, for respondents.
    John C. Milholland, Harrisonville, Missouri Assn, of Trial Attys., amicus curiae.
    Warren D. Welliver, Columbia, State Farm Mut. Ins. Companies, amicus curiae.
    Joseph A. Sherman, Robert A. Babcock, Thomas 0. Baker, Kansas City, Westmo Defense Lawyers Assn., amicus curiae.
    John W. Wade, Nashville, Tenn., amicus curiae.
   RENDLEN, Judge.

The principal issues on appeal of this cause were decided by opinion of March 14, 1977, now reported in 548 S.W.2d 535 (Mo. banc 1977). Because of instructional error the judgment was reversed and the cause remanded for retrial. Prior to remand, however, the case was docketed for further briefing and argument at the September, 1977, session of this court to determine whether some form of comparative negligence should be declared applicable to such actions in Missouri and utilized on resubmission of this case in the trial court.

Neither party had urged consideration of comparative negligence, but its adoption in some form having been suggested from time to time, the court concluded it appropriate to consider the question in this case. To that end amici briefs were invited. The subject was ably briefed by the parties, as well as several amici curiae, and an array of contrasting plans suggested. The court appreciates the service rendered by all involved and the briefs and oral arguments assisted immeasurably in the court’s consideration of the issue.

While we maintain the view expressed in the concurring opinion of Anderson v. Ca-hill, 528 S.W.2d 742, 749 (Mo. banc 1975), that general principles of negligence, contributory negligence and related concepts are court made and may be abrogated or changed by this court, we have concluded not to adopt any form of comparative negligence at this time. The subject is complex and takes a variety of forms in the several states where it is in use. The fact that conversion to such a new system involves many policy decisions may be the reason why most states which have adopted the doctrine in some form, have done so by legislative action. In this connection we note that during the past four years the General Assembly has considered on at least six occasions proposed acts which included some form of comparative negligence. The issue seems suited for legislative action. Accordingly, we conclude that for the present we should not adopt comparative negligence by judicial decision and this cause is ordered remanded for retrial in accordance with the court’s opinion of March 14, 1977.

MORGAN, C. J., and HENLEY and FINCH, JJ., concur.

DONNELLY, J., concurs in result in separate opinion filed.

BARDGETT, J., dissents.

SEILER, J., dissents in separate dissenting opinion filed.

DONNELLY, Judge,

concurring in result.

In my opinion, the briefs filed by appellants and respondents demonstrate that comparative negligence should not be adopted in this particular case. However, I believe this Court should deal with the subject of comparative negligence in an appropriate case.

Accordingly, I concur only in the result.

SEILER, Judge,

dissenting.

My present inclination is that we should adopt a fair and reasonable form of comparative negligence and I believe the present humanitarian case would have been an appropriate vehicle for the purpose, although it must be conceded that the possibility was raised sua sponte by the court.

Perhaps a future case will present the issue directly. Should a plaintiff endeavor, for example, to recover for injuries under a comparative negligence standard, as a second count of a negligence petition, a trial court’s disposition of that count would permit the issue to be raised on appeal by the parties.