author: REINHARD, Judge.

text:
    STATE of Missouri ex rel. Anna C. O’CONNELL, Relator, v. The Hon. William H. CRANDALL, Jr., Judge of the Circuit Court of St. Louis County, Missouri, Div. No. 1, Respondent.
    No. 38800.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 31, 1978.
    Motion for Rehearing and/or Transfer Denied March 10, 1978.
    Application to Transfer Denied April 10, 1978.

      John H. Quinn, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for relator.
    Jerome Wallach, Wallach, Miller & McA-voy, Fenton, for respondent.
   REINHARD, Judge.

Relator requests that this court make permanent a Writ of Prohibition, issuing to the Judge of Division One of the Circuit Court. Prohibition is sought in connection with a suit to contest the purported will of John P. McIntyre, Sr. As grounds therefore, relator argues respondent exceeded his jurisdiction in overruling relator’s Motion to Dismiss in that plaintiffs below failed to serve within ninety (90) days, without good cause, a party defendant in the will contest action, as required by § 473.083(4), RSMo Supp.1973.

The will of the deceased was admitted to probate on or about January 22, 1974, and Letters Testamentary were granted to relator, Anna C. O’Connell, as executrix. The following are the legatees named in the will and in the Petition for Probate of the Will and for Letters Testamentary: Anna C. O’Connell; The Reverend James T. Murphy, Pastor of St. Jerome’s Catholic Church; Jacqueline Hayes; Peggy Loe; and Sally Turner.

On March 15, 1974, the three surviving children of John P. McIntyre, Sr. brought suit to contest the will and designated the five legatees as parties defendant. Service was obtained on all defendants with the exception of Sally Turner. Relator, Anna C. O’Connell, filed an Answer, and for reasons not apparent in the record, the case lay dormant for more than two years.

Relator’s Motion to Dismiss was filed, and a hearing thereon was held, in November, 1976. In opposition to the Motion, plaintiffs below maintained that, pursuant to the terms of the will, Sally Turner was a contingent legatee inasmuch as her interest could vest only if she were in the employ of John P. McIntyre, Sr. at the time of his death. In this regard, the attorney for plaintiffs, subsequent to the hearing on the Motion, mailed to respondent an affidavit bearing the signature of Sally Turner, in which the latter states she was aware she would have been entitled to receive Four Hundred Dollars ($400.00) had she been working for Mr. McIntyre at the time of his death, but that she was not working for him at the time of his death.

On December 13, 1976, respondent overruled the Motion, citing the fact that Sally Turner had not been served within the statutory ninety (90) day period, but concluding that Sally Turner was not a necessary party to the suit.

The issue presented to this court is whether, in the circumstances of this case, Sally Turner’s status obviated the requirement of service of process and, if not, whether plaintiffs below made a sufficient showing of good cause for failure to secure and complete service on Sally Turner.

The plain meaning of the will contest statute, § 473.083(4), as it applies here, seems inescapable. Persons seeking to challenge a will

“shall proceed diligently to secure and complete service of process as provided by law on all parties defendant. If service of process is not secured and completed upon all parties defendant within ninety days after the petition is filed, the petition, on motion of any defendant, * * • in the absence of a showing by the petitioner of good cause for failure to secure and complete service, shall be dismissed by the circuit court * *

Nevertheless, plaintiffs argue on good authority that this provision applies only to necessary parties defendant and not necessarily to all parties defendant named in the petition. This qualification was stamped on the statute by our Supreme Court in Doran v. Wurth, 475 S.W.2d 49, 51 (Mo.1971), wherein the court stated:

“In our opinion, the General Assembly intended, by its amendment of the ‘will contest’ statute, that, absent good cause for failure, all necessary party defendants be named and served within the prescribed period.”

Further, Missouri courts have held repeatedly that a legatee is a necessary party to a suit to set aside a will. Kane v. Mercantile Trust Co. National Association, 513 S.W.2d 362 (Mo.1974); Godsy v. Godsy, 531 S.W.2d 547 (Mo.App.1975).

In their petition, plaintiffs alleged Sally Turner was a legatee, but now they advance the argument that Sally Turner was not a legatee since she was not in the employ of the testator at the time of his death and therefore not entitled to receive property under the will. In support of their contention, plaintiffs cite to us Donnan v. Donnan, 264 S.W.2d 318 (Mo.1954). There the court held the widow of the testator, a beneficiary named in the will but not named as a party defendant in the will contest petition, was not a necessary party because she had, prior to the filing of the suit, exercised her statutory right of election and renounced the will.

Donnan is not controlling of this case. The exercise by the surviving wife of her right of election had a legal effect entirely independent of the terms of the will. Once she had renounced the will, her claim to estate property was delimited by statute and not by her status under the will. The circuit court in Donnan was not called upon to interpret and construe the terms of the will preliminary to the determination whether the wife was a necessary party to the will contest.

In contrast, there is no indication that, prior to the initiation of this suit, while the matter was pending in probate court, Sally Turner either renounced her interest under the will, pursuant to § 474.490, RSMo, or that in fact she had no interest under the will. The order of the circuit court was not predicated on the happening of an independent legal event, as in Donnan, but rather on respondent’s interpretation and construction of the will and on evidence introduced in the form of an affidavit after the filing of the suit.

The will stipulated that Sally Turner was to receive Four Hundred Dollars ($400.00) provided she was in the testator’s employ at the time of his death. Yet the trial court was without authority in the will contest suit to make the determination whether the condition had been satisfied. “The sole purpose of the will contest statute, § 473.083, is to ascertain the single fact whether a certain paper or papers are or are not the last will and testament of the deceased. The statute * * * permits no other issue to be tried in said contest.” State v. Hensley, 385 S.W.2d 820, 824 (Mo.App.1964). The validity, effect or construction of the provisions of the will cannot be determined in a will contest suit. Weaver v. Allison, 340 Mo. 815, 102 S.W.2d 884 (1937). Questions concerning the property rights of devisees, legatees, heirs and others, which might arise out of a construction of the terms of the will cannot be resolved in such a proceeding. The record properly before the respondent permitted no other conclusion than that Sally Turner was a legatee and thus a necessary party to the suit.

Having concluded service of process on Sally Turner was required, we look to see whether plaintiffs have made a showing of good cause for failure to do so within the statutory ninety (90) day period. Concluding that Sally Turner was not a necessary party, respondent in his order did not reach the issue of good cause. The order did not constitute a determination of good cause, as plaintiffs attempt to argue. Nor does the conclusion of plaintiff that Sally Turner was not a necessary party satisfy the requirement of demonstrating good cause.

Proof of good cause consists of a showing of circumstances which prevent or impair service of process. Godsy v. Godsy, supra at 553; see also, Blatt v. Haile, 291 S.W.2d 85 (Mo.1956). Yet plaintiffs presented no evidence of good cause for their failure to secure and complete service; indeed, they admit in their brief that service on Sally Turner was obtainable.

Jurisdiction to hear will contest actions is conferred upon the circuit court by § 473.083(1). The right to contest a will does not exist independently of statutory authority and can be exercised only in strict accordance with and within the limits prescribed by statute. Godsy v. Godsy, supra at 549. It follows that persons bringing a will contest action have the burden of proof on the issue of good cause for failure to secure and complete service of process within ninety (90) days after filing of the petition. § 473.083(4); Godsy v. Godsy, supra at 552.

In the absence of a showing of good cause, the circuit court no longer had jurisdiction over the subject matter of the contest after the ninety (90) day period had lapsed. Sanderson v. Richardson, 432 S.W.2d 625, 630-31 (Mo.App.1968).

Because the circuit court exceeded its jurisdiction in not dismissing the case, prohibition is proper. State v. Strother, 365 Mo. 861, 289 S.W.2d 73 (banc 1956). The writ hereby is made permanent.

STEWART, P. J. and DOWD, J., concur.

      . Article VI of the will, in pertinent part, reads as follows:
      “I give and bequeath as follows:

      4. To my cook and housekeeper, Sally Turner of 3934 Cora Avenue, St. Louis, Missouri, provided that she is in my employ at the time of my death, the sum of $400.00, however, if she shall not be in my employ at the time of my death, then and in that event, this bequest shall lapse and become a part of my residuary estate.”

      . In his final order, respondent stated:
      “The issue is whether the failure to serve Sally Turner, the named defendant, within 90 days after the petition was filed, mandates a dismissal pursuant to Mo. Revised Statute 473.-084(4) [473.083(4)]. From the oral argument of counsel it appears that Ms. Turner was a contingent legatee under the will of John P. McIntyre, deceased. According to the affidavit filed by the plaintiff, which the court will permit the plaintiff to file, the contingency was in effect at the time of the death of John McIntyre, Sr. and, therefore, Ms. Turner would not take under the will.
      Based upon those facts, it is the court’s finding that Ms. Turner is not a necessary party to this lawsuit and, therefore, defendant O’Connell’s Motion to Dismiss is overruled.”

      . § 472.010(19) defines “Legatee” as a “person entitled to personal property under a will.

      . Plaintiffs appear to argue that the clause in the will pertaining to Sally Turner is clear and free from ambiguity and not subject to construction. The bequest to Sally Turner was conditioned on her being employed by the testator at the time of his death. That she was not employed at the time of his death, however, would not lead inescapably to the conclusion that her interest could not vest. As to problems of construction of such a provision, see Re Bridge’s Estate, 41 Wash.2d 916, 253 P.2d 394 (banc 1953), and Annotation, 39 A.L.R.2d 522.

      . Even if we could accept plaintiffs’ position that the circuit court had jurisdiction to decide whether the condition precedent to Sally Turner’s taking under the will had been fulfilled, we would have to conclude the court lacked competent evidence on which to based such a determination. The affidavit filed with the court following the hearing on the motion to dismiss was not competent evidence. Absent a stipulation of the parties, there is no authority for treating an affidavit as evidence, and in determining the issues therefrom. Stanfill v. Stanfill, 505 S.W.2d 438, 439 (Mo.App.1974); Eames v. Eames, 463 S.W.2d 576, 579 (Mo.App.1971). Rule 55.28 does not apply here.
      Moreover, we note plaintiffs’ petition alleged that Sally Turner was a legatee. Such a statement appearing in the petition constitutes a judicial admission. Plaintiffs subsequently did not amend their pleading. The vital feature of such a judicial admission is its conclusiveness upon the party making it, i. e. “the prohibition of any further dispute of the fact by [the party], and of any use of evidence to disprove or contradict it.” Wigmore on Evidence, 3d ed., v. 9, § 2590, at 587; Wigmore on Evidence, Chadbourn ed., v. 4, § 1064, at 67. See also, Wehrli v. Wabash Railroad Company, 315 S.W.2d 765, 773-4 (Mo.1958).


source: Caselaw Access Project

author: FLANIGAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Homer Lee LASITER, Defendant-Appellant.
    No. 10477.
    Missouri Court of Appeals, Springfield District.
    Feb. 3, 1978.
    Motion for Rehearing or Transfer Denied Feb. 28, 1978.
    Application to Transfer Denied April 10, 1978.

      Lloyd R. Henley, Springfield, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Prosecuted as a second offender, § 556.-280, defendant Homer Lee Lasiter was found guilty by a jury of the crime of robbery in the first degree, § 560.120, and he was sentenced by the court to 15 years’ imprisonment. The robbery was committed on July 23, 1976, and the trial was held on September 7, 1976. Defendant appeals.

Defendant’s first “point relied on” is that the trial court erred in allowing the defendant to be tried under the Second Offender Act [§ 556.280] “for the reason that the court made no finding on whether defendant was represented by counsel at a prior conviction, which was a matter at issue, and a finding of representation or waiver thereof is a requirement for use of the act’s provisions.”

The information, in addition to charging the robbery, alleged that on November 8, 1968, the defendant was convicted in the Circuit Court of Christian County, Missouri, of a felony (grand stealing), an offense punishable by imprisonment in the penitentiary, was sentenced to three years’ imprisonment and was subsequently placed on probation for three years.

Outside the hearing of the jury the court heard the evidence in support of the allegation of the prior conviction. That evidence included certified records of the Christian County proceeding. The recitals in those records included:

“Now on the 8th day of November, 1968 comes the State of Missouri by Prosecuting Attorney, and comes also the defendant in proper person in open court, and whereupon the Court informed the defendant of his right to counsel and explained wherein the exercise of said right might be of benefit to the defendant and appoints Phillip R. Garrison, an attorney, to act as counsel for the defendant and notifies said counsel that a reasonable time will be allowed in which to prepare the defense. Whereupon, after this defendant has had an opportunity and reasonable time to consult with his said counsel and with a friend and both defendant his said counsel being present in open court, defendant is duly arraigned and enters a plea of guilty to the charge of Grand Stealing, a felony, and the Court states to the defendant that he has voluntarily entered his plea of guilty. . . . ”

During the hearing with respect to the prior conviction the defendant, as a witness for himself, testified that he “didn’t believe that he remembered” discussing the matter with his attorney prior to entering the plea. He stated that he did talk to the attorney after he entered the plea. On cross-examination by the prosecutor he admitted that “today was the first time” he had ever said anything about not talking to the attorney until after the plea was entered.

After hearing the evidence with respect to the prior conviction, the court made formal findings of fact to the effect that the defendant was convicted on November 8, 1968, in the Circuit Court of Christian County, Missouri, of the crime of grand stealing, an offense punishable by imprisonment in the penitentiary, and that the defendant was thereupon sentenced and placed on probation. The court also found that defendant was a second offender within the meaning of § 556.280 and that the case would proceed under that statute.

“[T]he important requirement for the protection of a defendant is that the proof (the evidence) as to prior convictions sufficiently establishes those things required for the Second Offender Statute to be applicable, viz: that defendant was convicted of a prior offense punishable by imprisonment in the penitentiary; that he was sentenced therefor; and that he was subsequently placed on probation, paroled, fined or imprisoned therefor.” State v. Blackwell, 459 S.W.2d 268, 272[3] (Mo.banc 1970). (Emphasis in original) The court also held that where the necessary proof has been made, “specific recitals,” although desirable, “are not an absolute prerequisite” to the disposition of the case pursuant to the statute and that the court’s order reciting a finding of the prior conviction and the applicability of the statute is sufficient. “Such an order implies specific findings in accordance with the ultimate finding and conclusion stated.”

The findings made by the court in the case at bar are more than sufficient to satisfy the holding in Blackwell.

The argument portion of defendant’s brief contains an assertion that is probably beyond the scope of his first point. There defendant complains that the trial court failed to make a specific finding with regard to the adequacy of the manner in which defendant was represented by counsel in connection with the prior conviction. Defendant asserts that it was incumbent upon the trial court to make an inquiry into that issue and to make a specific finding thereon. That defendant’s position is untenable is demonstrated by the following authorities: State v. Hale, 400 S.W.2d 42 (Mo.1966); State v. Goff, 449 S.W.2d 591 (Mo.banc 1970); State v. Johnson, 504 S.W.2d 23 (Mo.1973); State v. Dittman, 542 S.W.2d 72 (Mo.App.1976). Each of these cases involved a defendant who was prosecuted as a second offender.

In Hale the defendant claimed that the state’s showing of the prior conviction was insufficient because the defendant pleaded guilty without the assistance of counsel. The record with regard to the prior conviction showed that an attorney was present but it did not specifically say that he represented the defendant. Other portions of the record concerning the prior conviction implied that the attorney did represent the defendant. The court said, in 400 S.W.2d at p. 46:

“Then upon this record there is the manner in which this problem was presented, this is not an appeal from the 1953 conviction, it is not a proceeding in habeas corpus and it is not a motion to vacate the judgment and sentence under Criminal Rule 27.-26, V.A.M.R. Hale was here being tried for the principal and substantive offense of robbery in the first degree and it is proposed in this collateral, tangentical (sic) manner to attack and invalidate a 1953 judgment and sentence. Of course a void judgment is subject to collateral attack but under a 27.26 proceeding the motion to vacate must allege facts, not mere conclusions, which if true would establish illegality of the judgment and mere failure to appoint counsel upon a plea of guilty is not sufficient in itself for that purpose.”

The court held that on “this record with the question presented in this manner” there v/as no showing that the prior conviction was invalid.

In Goff the court pointed out that the record of the prior conviction was regular on its face and “proper in form and substance.” The court said that it must assume, on the record before it, that the defendant had not attacked the prior conviction “by utilizing any of the available remedies such as a motion under [Rule 27.-26] or a habeas corpus proceeding, or if he did so his effort was unsuccessful.” The record of the prior conviction showed “a waiver of counsel as well as other elements relating to the defendant’s right to counsel.”

In 449 S.W.2d at p. 597 the court said:

“There is no violation of the defendant’s constitutional right to legal counsel apparent on the face of the judgment. On the contrary, compliance and observance of the right is shown. By his failure to take timely advantage of the various remedies provided to set aside the judgment for invalidities not apparent on the face of the judgment, the defendant has waived any such defects as a ground of objection to the admission of the certified copies of the judgment as evidence of a prior conviction.” (Emphasis added)

In Johnson the record with respect to the prior conviction reflected a “waiver of right to counsel.” The court rejected defendant’s contention that he had been denied counsel at the prior conviction and held that the record of the prior conviction was admissible and sufficient. Citing Goff, the court held that “furthermore” defendant’s failure to take timely advantage of the various remedies available for setting aside the pri- or conviction for invalidities not apparent on the face of its record constituted a waiver of such non-apparent invalidities as a ground for objection to the admission of the record of the prior conviction.

In Dittman the record of the prior conviction reflected a waiver by defendant of “trial by jury and defense by counsel.” Defendant attacked that record as insufficient on the ground that it failed to show that he “knowingly and voluntarily waived his constitutional rights.” The court, citing Goff, rejected defendant’s contention as “too feeble to stand.” The court said:

“We find no irregularities or deprivation of defendant’s constitutional rights on the face of the certified copy of the judgment of defendant’s prior § 564.440 conviction,” 542 S.W.2d at p. 74. (Emphasis added) The record of the prior conviction was held to be sufficient for invoking the Second Offender Act.

It is true that in State v. Thomas, 452 S.W.2d 160, 163[7—8] (Mo.1970) the trial court, during the trial of the second offense and outside the hearing of the jury, heard evidence from defendant which attacked the adequacy of his representation by counsel at the time of the prior conviction. The trial court made an express finding that the challenged representation was adequate. The supreme court held that the findings of the trial court were proper and were not erroneous. But the court did not say that the trial court had a duty to receive evidence on the issue and to make a specific finding thereon.

This court holds that the evidence with respect to the prior conviction was sufficient to support the finding of the trial court that the Second Offender Act was applicable and that the trial court did not err in failing to make a specific finding with regard to the adequacy of the manner in which defendant was represented by counsel in connection with the prior conviction.

Defendant’s first point has no merit.

Defendant’s second “point relied on” is that the trial court erred in permitting the case to go to trial and in imposing the sentence “because there were substantial doubts about defendant’s competency and awareness at time of trial and his ability to participate effectively in his defense,” and that the trial court further erred in not invoking “procedures available for the resolution of those doubts.”

“It has long been accepted that a person whose mental condition is such that he lacks the capability to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subject to a trial.” Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103, 112 (1975).

The test of a criminal defendant’s competency to stand trial is whether he “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Stroder v. State, 522 S.W.2d 77, 82[15] (Mo.App.1975).

“No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.” § 552.020(1). If the trial court had reasonable cause to believe that defendant had “a mental disease or defect excluding fitness to proceed,” it was his duty, sua sponte or on motion filed by the state or by defendant, to order a psychiatric examination. § 552.020(2).

The question of defendant’s competence to proceed is one for the trial judge and not for the jury and the court “must confront and determine the issue at whatever stage of the trial it may arise.” State v. Clark, 546 S.W.2d 455, 468 (Mo.App.1977).

On the morning of this one-day trial, and prior to its commencement, the defendant, on direct examination by his own attorney, testified with regard to circumstances surrounding the prior conviction. His testimony dealing with that subject covers five pages of the transcript and is coherent.

Defendant’s attorney Mr. Clough then elicited from defendant that he had taken “one valium” at 5 a. m. Defendant said he was “a little vague on what was going on this morning.” Thereupon the trial court extensively interrogated the defendant. The defendant said that he was able to understand “what Mr. Clough has been asking me today.” He understood the factual particulars of the offense with which he was being charged. He said he was able to make his ideas known to Mr. Clough and he was thinking clearly “at this time.” Questioned by the prosecutor, the defendant said that he felt well enough to go ahead with the trial and was thinking clearly enough to cooperate with Mr. Clough. He mentioned specific topics that he had discussed that day with Mr. Clough.

Attorney Clough informed the court that he had conferred earlier that day with the defendant and, although the defendant was nervous, Clough felt the trial should proceed.

The court then made a specific finding of competency. The court said it was basing its finding on the testimony of the defendant, the court’s observation of the way he spoke, the statement of Mr. Clough, and other testimony defendant had recently given.

The trial commenced later in the morning, recessed for lunch, and resumed in the afternoon. The jury retired to deliberate at 5:35 p. m. Thereupon attorney Clough placed the defendant on the stand and elicited coherent testimony from him with regard to his decision not to take the stand and with regard to conferences defendant had had with Clough that day which culminated in that decision.

The court, on its own initiative, then interrogated the defendant about “this vali-um thing.” Again the interrogation was extensive. Defendant said he had taken another pill at noon. Asked by the court whether there was anything about the trial which he didn’t understand, defendant replied that he didn’t understand why one witness referred to his curly hair as being kinky. Defendant said he had had no trouble discussing the case with Mr. Clough during the trial.

Attorney Clough informed the court that he had discussed the case with the defendant throughout the day and that they had been able to communicate with each other. The defendant agreed with Clough’s statement.

The motion for new trial, filed two days after the verdict, made no mention of incompetency. On September 13 a hearing was held on defendant’s motion for new trial. At that time Mr. Clough informed the court that defendant had told Clough that morning that he remembered nothing about the trial.

On the stand defendant testified that he understood what was going on “right now” but said that at the trial “I just lost track of everything.” He said that he took “23 valiums” on the day of the trial but remembered that he had given contrary testimony on that day. Defendant stated he was lying when he gave the latter testimony.

The court stated that from his interrogation of the defendant on the day of the trial he was satisfied that defendant was able to proceed. He said that during the trial he had observed the defendant “looking with interest and intentness at what was going on” and “there was no look on his face of blankness or incomprehension that would have indicated to the court that he was not able to follow the proceedings or otherwise advise with counsel.”

The court pointed out that no request had been made, at the trial or at the hearing on the motion, that defendant be given a psychiatric examination and the court said that he saw no reason why the court, on the basis of the defendant’s statements “made today,” should order such an examination. “It just seems to me the court is entirely justified, after the lengthy session last Tuesday, and observing the witness, who frankly spoke with more conviction then than he does today, to believe what he said last Tuesday.”

Bailiff Martin Pettitt, who had custody of the defendant during the trial, testified that he saw no difference between the defendant’s actions on the day of the trial and at the time of the motion hearing. He said the defendant talked extensively with defendant’s sister during recesses at the trial.

The foregoing record demonstrates that defendant’s second point is inaccurate in claiming there were “substantial doubts” about defendant’s competency to proceed. The experienced trial court, acutely aware of his responsibility to safeguard defendant’s rights, held three hearings on the issue. The first two hearings were held on the day of the trial itself, one before it commenced and the other while the jury was deliberating. The third hearing was held in connection with the motion for new trial. Defendant himself testified at each of the three hearings and his testimony was coherent. At none of the three hearings did defendant or his attorney request, or even suggest the possibility of, a mental examination.

Defendant’s claim of trial incompetency is based upon his testimony at the third hearing wherein he testified, in effect, that he was incompetent at the first two hearings. The trial court was not required to believe that testimony and this is especially so since it was in conflict with the trial court’s own observation of the defendant at the first two hearings and with the meticulous record. Defendant’s counsel at no time protested that his client was incompetent, although he dutifully brought to the attention of the trial court information which the defendant had conveyed to him concerning his alleged consumption of valium.

The federal appellate courts have displayed an understandable reluctance to interfere with the trial court’s determination concerning competency to stand trial. That determination “should not be set aside unless clearly arbitrary,” In re Harmon, 425 F.2d 916, 918[3] (1st Cir. 1970), or “unless it is clearly arbitrary or unwarranted,” United States v. Gray, 421 F.2d 316, 317[2] (5th Cir. 1970), or unless “clearly erroneous,” Bruce v. Estelle, 536 F.2d 1051, 1058 (5th Cir. 1976), although the latter authority states that the appellate court “must take a hard look at the district court’s ultimate determination.” In Missouri the scope of review of the trial court’s determination is governed by Rule 73.01. State v. Clark, 546 S.W.2d 455, 469[23] (Mo.App.1977).

The foregoing record fails to demonstrate that the trial court had reasonable cause to believe that defendant lacked the capacity to understand the proceedings against him or to assist in his own defense and accordingly the trial court did not err in failing to order, sua sponte, a psychiatric examination. McCarthy v. State, 502 S.W.2d 397, 404[10] (Mo.App.1973); Sears v. State, 536 S.W.2d 923, 926[6] (Mo.App.1976); State v. Mares, 486 S.W.2d 215, 217[3] (Mo.1972); United States v. Robinson, 530 F.2d 677 (5th Cir. 1976); United States v. Drake, 542 F.2d 1020 (8th Cir. 1976).

Defendant’s second point has no merit.

Defendant’s third “point relied on” is that the prosecuting attorney, during his final argument, committed reversible error in making statements which defendant construes to be a comment upon the failure of defendant to testify, thereby violating defendant’s constitutional rights and the prohibitions contained in § 546.270 and Rule 26.08.

No objection was posed to the challenged remarks at the time they were made or in defendant’s motion for new trial. Accordingly, the point has not been preserved for appellate review. State v. Kelly, 539 S.W.2d 106, 112[12] (Mo.banc 1976); State v. Coleman, 524 S.W.2d 27, 31[9] (Mo.App.1975).

Defendant urges that the point be reviewed as plain error under Rule 27;20(c). The challenged remarks, considered in context, may be subject to the construction which defendant now seeks to place upon them but they do not necessarily require that construction. This court has concluded that they did not result in “manifest injustice or miscarriage of justice” and that defendant’s claim of plain error must be overruled. State v. Collins, 519 S.W.2d 362, 363[3] (Mo.App.1975).

Defendant’s fourth “point relied on” is that the prosecutor committed reversible error in stating, in his final argument, that defendant’s face “is one that no normal person could ever forget” and “stands out in a crowd like a sore thumb.” No objection was made to either remark and the matter has not been preserved. State v. Martin, 484 S.W.2d 179, 180[1] (Mo.1972); State v. Barron, 465 S.W.2d 523, 529[9] (Mo.1971).

The judgment is affirmed.

All of the Judges concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969 V.A.M.S.

      . See State v. Franklin, 547 S.W.2d 849, 851 (Mo.App.1977) where the court construes State v. Blackwell, 459 S.W.2d 268 (Mo.banc 1970) as “tending to indicate that even an omitted general finding can be implied if the necessary facts have been proved.”


author: PRITCHARD, Judge.

text:
    STATE ex rel. the GAS SERVICE COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION of Missouri, Respondent, City of Harrisonville, Intervenor.
    No. KCD 29101.
    Missouri Court of Appeals, Kansas City District.
    Feb. 6, 1978.
    Motion for Rehearing and/or Transfer Denied March 16, 1978.
    Application to Transfer Denied April 10, 1978.

      Robert L. Hawkins, Jr., Jefferson City, Donal D. Guffey, Kansas City, for appellant.
    Leland B. Curtis, Gen. Counsel, James S. Haines, Jr., Counsel, Jefferson City, for Public Service Commission.
    James E. Thompson, Jr., Harrisonville, for intervenor.
    Before SWOFFORD, P. J., and DIXON and PRITCHARD, JJ.
   PRITCHARD, Judge.

The Gas Service Company appeals from a judgment of the circuit court affirming an order of PSC disapproving Gas Service’s proposed tariff to become effective October 5, 1973, limiting its obligation to provide natural gas service in those Missouri communities solely served with gas purchased at wholesale from Panhandle Eastern Pipe Line Company to then connected customers at their then existing usage levels.

Intervenor, City of Harrisonville, is one of the communities affected, in that any new customers, such as those in newly developed subdivisions, would not be able to hook on to existent gas service to the city. The issue is whether PSC’s order is reasonable and lawful under the standard of review set forth in § 386.510, RSMo 1969, and cases construing it, e. g., that the question of the order’s “lawfulness” turns on whether PSC had statutory authority to issue it; and “reasonableness” turns on whether the order was supported by competent and substantial evidence on the whole record. State ex rel. Ozark Electric Coop. v. Pub. Serv. Com’n, 527 S.W.2d 390, 392[1] (Mo.App.1975), and cases cited.

Gas Service obtains its natural gas supply from two interstate pipeline companies: Cities Service Gas Company and Panhandle, the latter furnishing about 4% to 5% of all the gas that is sold by Gas Service, and Cities Service furnishes the balance. Harri-sonville is served solely by Panhandle, along with 12 other incorporated communities [Armstrong, Centerview, Clarksburg, Drex-el, Fayette, Houstonia, Hughesville, Palmyra, Pilot Grove, Tipton and Windsor], and two unincorporated areas by Panhandle. Panhandle is obligated to deliver 34,600 MCF daily to Gas Service in Missouri by the contract between them dated September 16, 1970, of which 16,915 MCF is designated to the unrestricted main line, and 17,685 MCF to the local restricted areas. Harrisonville takes 4,790 MCF daily of the latter amount.

In 1971, Panhandle filed with the Federal Power Commission [FPC, now the Federal Energy Regulatory Commission, FERC, 42 U.S.C.A., § 7151(b)] a tariff revision plan relating to curtailment of deliveries to its customers during periods of short supply of natural gas. FPC subsequently issued orders early in 1973 containing policy statements establishing, initially, nine priorities of end use natural gas, ranging from a top priority assigned to residential customers and commercial customers using less than 50 MCF on a peak day down to customers with interruptible requirements of more than 10,000 MCF per day, where alternate fuels available can meet those requirements. Panhandle then revised its curtailment plan effective November 1, 1973. That plan is founded upon a “base period” from May, 1969, through October, 1971, which shows the highest individual monthly deliveries. When curtailment is required on the Panhandle system, individual customers are curtailed in natural gas supply from their respective base period monthly volume as a pro rata share. This curtailment plan resulted in Gas Service filing with PSC in September, 1973, an addition to its tariff which restricted the addition of new applicants and limited existing customers to their then existing usage levels. Harrisonville was put under Gas Service’s tariff restriction October 5, 1973. The tariff was subsequently revised as to expiration date to extend the restrictions to September 25, 1975. Meanwhile, intervenor, City of Harrisonville, filed its complaint requesting exemption from that portion of Gas Service’s tariff, which had been filed and approved, entitled “Limitations Upon Company’s Obligation to Supply Gas Service” upon which complaint PSC proceeded to conduct hearings, and which resulted in this further evidence:

In October, 1973, of the 554,486 MCF of gas of Panhandle’s supply to Gas Service under the contract, 62,166 MCF were not taken; in November, 1973, there were 820,-595 MCF available, and 115,570 were not taken; in December, 1973 (a colder month), 30,314 MCF were not taken. From October, 1974, through September, 1975, the natural gas projected to be available to Gas Service under its Panhandle contract exceeded that actually taken by Gas Service from October, 1973, through September, 1974, by 389,298 MCF. On the ten highest peak usage days from October 1, 1973, through October 26, 1974, Gas Service was able to serve all its large industrial-commercial customers, although supplies to them had been totally curtailed by the FPC. The unused natural gas, amounting to a 13% decrease, for the foregoing periods was the result of domestic users’ conservation efforts. From February, 1973, through October, 1973, excluding July, August and September, the total result was a domestic use decline of 3,925,771 MCF of which large industrial and commercial customers and power plants consumed 1,766,597 MCF. The remaining volume, 2,159,174 MCF, was lost to Gas Service’s system, which has no storage facilities. The record shows that the average residential home uses 160.2 MCF per year. During this same period of time Gas Service requested a rate increase of PSC which was based in part upon loss of sales of natural gas, 2,160,175 MCF, as measured against Harrisonville’s need of 4,790 MCF per day (which would total about 862,200 MCF for the six month period in question).

As to the impact of curtailment upon Harrisonville’s economy and growth, Felix Hacker, a fourth year alderman, testified that building permits had been issued by the city: 1971, 172; 1972, 142; 1973, 142; 1974, 54, the latter figure being the result of gas restrictions being imposed. Hacker’s business, a Gamble’s store, suffered a 20% decline the past year, and he sold very few gas appliances. Banker William Fowler is a developer of real estate — Thunderbird Estates in the northeast part of the city, within the city limits and initially consisting of 160 acres. 46 lots were developed to late 1972, but only 5 have homes upon them. Other lots have been sold, 32 lots remaining of the original 56, but no building is being done by reason of the gas situation. Fowler had been making 40 to 45 construction loans per year, which in 1974, was reduced to 10 to 12 loans. Banker Jordan D. Lindsey had made 40 to 60 real estate construction loans for the past 6 to 8 years, but no more than 8 new starts were made since the fall of 1973. Charles A. Jones, a partner in HJM housing development project, had 26 out of 124 lots fully developed, and 15 acres of available land was unplatted. The Gas Service restrictions “killed them completely.” Gas Service serves Harrisonville’s electric power plant, and in December, 1970, served 1,906 other customers, which by December, 1973, had grown to 2,306 customers, an increase of 19.1%. The foregoing decline in new home construction of at least about 130 houses, would, at 160.2 MCF per year, have consumed only 19,826 MCF per an-num.

In South Johnson County, Kansas, Gas Service prior to January 1, 1974, served the communities of Stanley, Stilwell, Aubry and rural Johnson County. On that date, it filed with the Kansas Corporation Commission a tariff similar to the one here in issue. Thereafter, it constructed a 3 mile distribution line to connect its lines with those supplied with the Cities Service Company’s natural gas, and did not seek FPC approval for the construction of the interconnected distribution system. Gas Service then revised its tariff removing the restrictions on the Kansas area, which was approved by the Kansas Corporation Commission.

Other interconnections between Gas Service and Cities Service were shown to have existed: In Southwest Jackson County, to serve Liberty, Blue Springs, Lake Lotawa-na and Lee’s Summit; Dodson (at 99th and Holmes in Kansas City) to serve the metropolitan area, Belton, Grandview and Richards-Gebaur Air Force Base. There is no limitation upon the amount of natural gas furnished by Cities Service in these community areas except that there may not be a displacement of a total transfer of Panhandle’s supply to Cities Service.

A Cities Service pipeline which supplies appellant is located one mile north of Harri-sonville’s city limits, and within one-half mile of the Panhandle line which supplies that city.

Gas Service has a plan to serve the new Raintree subdivision, north of Harrisonville on the county line, with natural gas from Cities Service, an 8" main on one side, and a 6" main on the other. Raintree, which will eventually have about 1,000 residences, is not under restriction as to adding customers.

It is without doubt true, as Gas Service says in its Point I, that its duty to render public service is not absolute, but is qualified by the intervention of circumstances beyond its control, as, for instance, a shortage of supply (citing and quoting Priest, “Principles of Public Utility Regulation”, pp. 237-238). The question in this case is whether the substantial evidence before PSC shows that there was a shortage of natural gas supply which would justify Gas Service’s tariff restriction on new “hookups” to Harrisonville, or whether there was no substantial shortage and the restriction would therefore not be justified.

Gas Service says the conception of “conserved” gas is unsupported as to support the addition of new customers. The argument proceeds that the reduction in sales volumes does not represent reduced usage by Gas Service’s customers only in communities served with gas purchased from Panhandle, but instead represents reduced consumption by all of its customers in Missouri, 95% of whom are served with gas purchased from Cities Service. Thus, it says, the record reflects no quantification of reduced consumption by its customers served with natural gas supplied by Panhandle. The record is contrary to this assertion: For October, November and December, 1973, unused natural gas in Gas Service’s supply from Panhandle totalled 208,050 MCF, this being the time when the restrictions on hookups in Harrisonville first came into effect. [The 208,050 MCF would have supplied 5,000 additional residences at 160.2 MCF per annum, for that period.] The natural gas projected to be available to Gas Service from Panhandle from October, 1974, through September, 1975, exceeded by 389,298 MCF the natural gas which Gas Service actually took from Panhandle from October, 1973, through September, 1974. [This excess would have supplied some 2,433 additional residences at 160.2 MCF for that year.] On the ten highest peak usage days in Gas Service’s system from October 1, 1973, through October 26, 1974, Gas Service was able to serve all of its large industrial and commercial customers, including those served exclusively with Panhandle supplied gas. This was done even though during that time period supplies for such customers had been totally curtailed by the FPC. The total reduction in gas, lost to Gas Service’s system, from February, 1973, through October, 1973, was 2,159,174 MCF, enough as PSC and Harrisonville say, to have served 13,500 residences. At the time of this hearing, there were some 130 lots ready for development in Harrisonville, which also at the rate of 160.2 MCF per year, would consume some 21,000 MCF out of the foregoing unused natural gas. It is demonstrated that PSC’s order is replete with substantial evidence to support it in that there was sufficient available surplus natural gas in Gas Service’s system to supply Harrisonville’s relatively small needs.

Consideration and comment should be made of the obvious analogous relationship among Cities Service, Gas Service and Panhandle in the south Johnson County interconnected supply system accomplished at about the same time as the restrictions were placed upon Harrisonville. It is not adequately explained in the record why two residential areas growing together in Kansas, and which were interconnected in Gas Service’s system so that the two areas would be served by both Panhandle and Cities Service, are any different, in substance, than the growing Harrisonville area. In this connection, although Gas Service says that Cities Service, in a letter dated November 1, 1973, stated that it would not serve anyone else, that letter is in response to one from Gas Service requesting permission to furnish gas to Kansas communities. Obviously, Cities Service’s expression carries little weight because it was a party to the interconnected Gas Service system in southern Johnson County, Kansas. It is further not explained why these same three companies could not agreeably make the same arrangement as to Harrisonville in interconnecting its Panhandle line to Cities Service, as exists in the Dodson area. That procedure would involve a line of some 2,600 feet, as contrasted to the three mile line constructed to serve the two Kansas residential areas. “Displacement” could thus be accomplished, and if it did not require FPC [FERC] approval in Kansas, so should it not require it for Harrisonville, especially since the record shows that Gas Service is continuing to add new residential customers to its system in both Kansas and Missouri, as supplied by both Panhandle and Cities Service, and under the same G-2 contract which Gas Service has with Panhandle. PSC’s finding that “The Gas Service Company is in a position to displace some Panhandle gas in part of its system to be used in the Harrisonville area” is likewise supported by substantial evidence.

PSC found that Gas Service could furnish additional natural gas to Harrisonville by filing an application under 15 U.S.C.A. § 717f(a), to construct a city gate on the Cities Service, at a cost of approximately $14,200 for 3,450 feet of 4" pipe, service lines, meters and right-of-way, and observed, “This application would likely be opposed by Cities Service. The company would be able even under its own estimates to make some return on this investment. The long range return would, of course, depend on a great many variables.” 15 U.S.C.A. § 717f(a) provides: “Whenever the Commission, after notice and opportunity for hearing, finds such action necessary or desirable in the public interest, it may by order, direct a natural-gas company to extend or improve its transportation facilities, to establish physical connection of its transportation facilities with the facilities of, and sell natural gas to, any person or municipality engaged or legally authorized to engage in the local distribution of natural or artificial gas to the public, * * * if the Commission finds that no undue burden will be placed upon such natural-gas company thereby: Provided,” (there shall be no authority to compel enlargement of transportation facilities, or to establish physical connections or sell natural gas when to do so would impair its ability to render adequate services to its customers). Of course, a fair reading of PSC’s finding is that it is not an absolute that FPC (FERC) would find the evidence sufficient to grant a certificate of public convenience to Cities Service requiring it to extend its lines to Harrisonville. Many evidentiary factors would have to be considered such as what is in the public interest; whether an undue burden would be placed on Cities Service, and whether its ability to serve other customers would be impaired. The finding is but an alternative which Gas Service could use, and it is noted that PSC included in its findings, “However, since there are alternative methods for providing the additional gas supply, the Commission concludes that it should not by this Report and Order preclude the Gas Service Company from deciding which method or combination of methods to use in serving Harrisonville.” It is reasonable to conclude that if the facts were the same before FPC (FERC) as were before PSC here, the result would be that a certificate of convenience and necessity would be issued, especially in view that additional residential customers were being hooked onto the two systems in many other areas, and none were being permitted in Harrisonville.

Gas Service cites Re Interstate Gas Company and Cities Service Gas Company, 6 FPC 252, for the proposition that Cities Service had once sought FPC authority to serve Harrisonville, and had been refused. PSC observes that the Interstate case was decided in 1947, and that the refusal in part was based upon the finding that Gas Service was then adequately serving that city. Here, upon the record, Gas Service is not adequately serving Harrisonville, at least insofar as permitting new hookups, which it had been doing throughout its system and by its interconnections with Cities Service.

The trial court found and concluded that PSC’s report and order disapproving Gas Service’s filed tariff, and directing that a tariff be filed allowing connection of additional retail customers within Harrisonville, is “lawful, reasonable, and based upon competent and substantial evidence on the whole record.” Additionally, the court found, “There is competent and substantial evidence upon the whole record upon which Respondent could find (italics added): D. That the availability of gas for new connections in areas adjacent to the city, while potential customers in the city were precluded by Relator’s tariff from connection, was unduly discriminatory.” In its intervening complaint, Harrisonville pleaded that the restrictions were discriminatory against it, but PSC made no finding or conclusion as to that allegation. The trial court’s observation is beyond the record and may be disregarded inasmuch as it made the further finding that PSC’s order disapproving the restrictive tariff was lawful and reasonable, and it affirmed the Report and Order.

Gas Service lastly contends that PSC erred in not finding that substantial danger to the public and Gas Service’s employees would result if additional connections were required, and “in concluding” that PSC’s order did not violate the company’s rights under U.S.Const. Amend. IV. There was no evidence presented as to any danger, nor were the issues in any way presented to PSC. The point must be overruled.

Under the whole record, the Report and Order was reasonable as supported by substantial evidence, Ozark Electric Coop., supra, and it was within the jurisdiction of PSC. Federal Power Commission v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 81 S.Ct. 435, 445[7, 8], 5 L.Ed.2d 377 (1961).

The judgment is affirmed.

All concur.


author: HOGAN, Judge.

text:
    Virgil Dale AGEE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10691.
    Missouri Court of Appeals, Springfield District.
    Feb. 7, 1978.
    Motion for Rehearing or Transfer Denied Feb. 17, 1978.
    Application to Transfer Denied April 10, 1978.

      John S. Pratt, Jr., Springfield, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
   HOGAN, Judge.

This is a proceeding for postconviction relief pursuant to Rule 27.26. Movant also seeks to have his sentence reduced under Rule 27.04.

In 1970, movant Virgil Dale Agee was convicted of rape upon the person of a twelve-year-old female, and a jury assessed his punishment at imprisonment for a term of 99 years. Upon appeal, the Supreme Court of Missouri affirmed the conviction. State v. Agee, 474 S.W.2d 817 (Mo.1972). The movant thereafter sought postconviction relief in the trial court, which was denied after an evidentiary hearing. Mov-ant appealed, and this court affirmed the judgment denying relief. Agee v. State, 512 S.W.2d 401 (Mo.App.1974). The movant then sought relief by habeas corpus in the United States District Court; that court denied relief after an evidentiary hearing. Agee v. Wyrick, 414 F.Supp. 435 (D.C.Mo.1976). Thereupon, the movant appealed to the United States Court of Appeals for the Eighth Circuit, which concluded that the Missouri courts had not considered, or had inadequately considered whether the alleged incompetency of movant’s trial counsel, if such existed, served to unconstitutionally enhance the movant’s sentence. The Court of Appeals held this question might be presented to the Missouri courts for consideration. Agee v. Wyrick, 546 F.2d 1324, 1328 (8th Cir. 1976).

In this second proceeding for postconviction relief, the trial court observed — correctly — that it was under no obligation to entertain a second motion for postconviction relief. See: Rule 27.26(d); Hulstine v. State, 533 S.W.2d 228, 230[1] (Mo.App.1975). Nevertheless, the trial judge, in a spirit of collegiality, took up and considered the movant’s claim that his punishment was enhanced by trial counsel’s failure to object to or prevent admission of movant’s un-counseled conviction of a misdemeanor committed in 1958. The trial court found “. . .no basis on which to believe that the jury would have assessed a lesser punishment if the evidence of the uncounseled misdemeanor conviction . . . had not been in the case.” The court further held that “[Tjhis is so even if the defense attorney had objected and the court had sustained the objections.” Reduction of the movant’s sentence was denied. Movant has appealed.

If we were disposed to rule this appeal on its merits, we would be hard put to find any record color of substance in either of the two infirmities suggested and elaborated by the United States Court of Appeals. We shall not, however, undertake to examine the cause afresh on its merits.

We have re-examined our record on appeal in the first postconviction proceeding. We find that the movant there alleged error in the admission of the uncounseled misdemeanor conviction. This error was assigned in Ground 11(d) of the first motion for postconviction relief. In Ground 111(a) and (g)(2), movant raised appointed counsel’s inadequacy and complained of the admission of certain other, different past convictions on the ground that they “went to . . . the enhancement of punishment” and in Ground III(j) assigned as a reason for relief that “. . counsel failed to object to the improper use of the misdemeanor [conviction] . . . ” Perhaps the point that counsel’s failure to object to the admission of the uncounseled misdemeanor conviction was not explicitly and in terms presented by such allegations, but our record in the first proceeding palpably demonstrates that such inadequacy of counsel could have been argued in the first postconviction proceeding. In such circumstances, under our law, the defendant was not entitled to be heard a second time. Where the ground for postconviction relief is technically “new” but could have been raised in the first motion, the second motion should be dismissed. Rule 27.26(d); Newman v. State, 481 S.W.2d 3, 5 (Mo.1972); Riley v. State, 545 S.W.2d 711, 713[5] (Mo.App.1977). This motion for postconviction relief should have been dismissed by the trial court, and accordingly the appeal is dismissed.

All concur.

      . References to statutes and rules are to RSMo (1969), V.A.M.S., and Missouri Rules of Court (8th ed. 1977), except where otherwise noted.

      . Which reads: “[T]he court shall have power, in all cases of conviction, to reduce the extent or duration of the punishment assessed by a jury, if in its opinion the conviction is proper, but the punishment assessed is greater than, under the circumstances of the case, ought to be inflicted.”


author: CLEMENS, Presiding Judge.

text:
    Barbara Lundstrom STAHLHUT, Appellant, v. Robert Edward STAHLHUT, Respondent.
    No. 38526.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 7, 1978.
    Motion for Rehearing and/or Transfer Denied March 10, 1978.
    Application to Transfer Denied April 10, 1978.
    Armstrong, Teasdale, Kramer & Vaughan, Justin C. Cordonnier, St. Louis, for appellant.
    Donald K. Gerard, Donald E. Heck, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Plaintiff-wife has appealed from an order granting her husband’s motion to modify a prior divorce decree. The order relieved defendant-husband of further obligation to pay alimony. We affirm.

The trial court granted the divorce in 1973 and awarded plaintiff custody of the two minor children. Additional awards: Plaintiff was to receive $300 per month child support and $140 a month alimony; the family home and contents; medical and dental insurance coverage for the children; tuition and costs of books for each of the children’s college education; a $10,000 insurance policy on defendant’s life; payment of all debts incurred before the parties’ separation; a motor vehicle and $350 attorney fees.

Defendant-husband filed a motion to modify in 1975. The court applied V.A. M.S., § 452.370(1) to its findings of changed circumstances so substantial and continuing as to make the terms of the original decree unreasonable and terminated future payment of maintenance to plaintiff. Plaintiff-wife has appealed from that order, contending it is not supported by the evidence.

Our review is limited by principles of Murphy v. Carron, 536 S.W.2d 30[1-3] (Mo.1976). There being no issue of law, we must affirm if the decree is supported by substantial evidence.

At the time of divorce plaintiff was unemployed but soon went to work as a typist at $400 a month; when the motion was heard her salary had increased to $654 a month.

Plaintiff has challenged the termination of her maintenance award. She testified she needs $215 a month for personal expenses and $264 a month for half of the joint expenses of herself and the children, a total monthly expense of $479. Considering defendant’s continuing obligation to pay plaintiff $300 a month for child support, plaintiff’s personal expenses are $179 a month. She earns $654 a month and had $1,700 in savings. The trial court did not err in terminating plaintiff’s $140 a month alimony.

Plaintiff’s second point relied on is that “The trial court erred in awarding appellant only half her attorney’s fee.” The point is patently abstract and fails to comply with Rule 84.04(d), V.A.M.R., by stating wherein and why the trial court erred.

Order affirmed.

SMITH and McMILLIAN, JJ., concur.


text:
    WILLIAMS ENERGY COMPANY, Respondent, v. TRACY TRUCK LEASING, INC., et al., Appellants.
    No. 38809.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 7, 1978.
    Motions for Rehearing and/or Transfer Denied March 10, 1978.
    Application to Transfer Denied April 10, 1978.

      Robert V. Niedner, Niedner, Moerschel, Alheim & Bodeux, St. Charles, for appellants.
    E. Rex Bradley, Peter J. Grewach, Troy, for respondent.
   CLEMENS, Presiding Judge.

When defendants failed to appear for their duly scheduled trials, the court rendered judgments for plaintiff. Thereafter the trial court denied defendants’ motion to set aside the judgments and defendants, now represented by Mr. Robert V. Niedner, have appealed. We affirm.

Plaintiff had filed two petitions for damages and defendants answered by general denials. On October 20, 1976 the court issued a two-pronged order, removing certain cases from its active docket and setting other cases for trial. The order was circulated to all attorneys of record. It listed the removed cases and then listed new trial settings. Plaintiffs’ two cases were set for trial on November 15 and 18, 1976. On November 2, 1976 defendants’ trial counsel, Mr. Lee Young of Union, Missouri — without notifying plaintiffs’ counsel — wrote letters to the court requesting removal of the two cases from their trial settings to allow defendants to file counterclaims. The record shows no response from the court. Defendants’ counsel failed to appear at trial and after hearing plaintiff’s evidence the court rendered judgments against defendants.

Defendants now contend the trial court erred in denying their motion to set aside the judgments because (1) defendants’ trial counsel had good cause for failing to appear for trial, (2) the trial court’s action was an unnecessarily harsh exercise of its discretion, (3) the negligence of counsel should not be imputed to defendants.

Defendants first contend the trial court erred in refusing to set aside the judgments because defense counsel misinterpreted the order setting the cases for trial and that was a reasonable excuse for his failure to appear for trial.

In Luce v. Anglin, 535 S.W.2d 504[2—4] (Mo.App.1976), the court stated: “ . there is no dispute that the law favors the trial of litigation on the merits, but such generalization must be carefully applied to the facts of each case in the interest of justice . . . . The law defends with equal vigor the integrity of legal process and procedural rules and does not sanction disregard thereof.”

A default judgment will not be set aside unless defendant has shown a reasonable excuse for the default and a meritorious defense. Luce, supra, at p. 507[2-4]. And, the judgment will not be disturbed on appeal unless the elements of reasonable excuse and meritorious defense are so clearly apparent that the refusal to set aside was arbitrary. Whitledge v. Anderson Air Activities, 276 S.W.2d 114[3] (Mo.1955).

The record does not support defendants’ contention of reasonable excuse. A copy of the court’s order sent defendants’ trial counsel consisted initially of two pages of cases removed from the court’s active docket. Near the top of the third page, double broken lines appear across the page, enclosing the headings “Number,” “Style of Case,” “Attorney,” and “Date Set.” Plaintiff’s two cases are listed there and the court’s order is unambiguous. By affidavit defendants’ trial attorney admits he did not carefully examine the order. Excusable mistake must be free from negligence by the party seeking relief. Young v. Cole, 549 S.W.2d 625[2] (Mo.App.1977); Falcon Enterprises, Inc. v. Precise Forms, Inc., 509 S.W.2d 170[6] (Mo.App.1974).

There is also some question as to the accuracy of defense attorney’s present contention on this. After receiving and alleging he misread the order to mean his two cases had been removed from the trial docket, he wrote the circuit court to request that the same cases be removed from the trial settings. We find no explanation for this inconsistency. We cannot conclude defense counsel was free from negligence in not appearing for trial.

Even if defendants’ counsel was free from negligence in misinterpreting the court order, he had no reason to assume the two cases would be removed from the trial docket just because he had requested removal. In Falcon Enterprises, supra, at p. 174[7], the court affirmed the trial court’s refusal to set aside a judgment for defendants on their counterclaim where plaintiff’s excuse for non-appearance at trial was that he assumed the trial had been reset after receiving a notice from defendant rescheduling a deposition for a date subsequent to the trial date. The court found plaintiff negligent in failing to verify whether the trial had been reset.

Vaughn v. Ripley, 446 S.W.2d 475[8, 9] (Mo.App.1969), was a remarkably similar case. Defendant pleaded but failed to appear for trial. The court upheld a refusal to set aside the judgment and cautioned: “During the progress of a cause, a lawyer is charged with the duty and presumed to know what is going on in his case . (and) a party or his lawyer must be vigilant to follow the progress of the proceeding in which he is involved.”

We hold the trial court did not err in finding defendants failed to show good cause for not appearing for trial.

Nor have defendants demonstrated any meritorious defense. Their initial pleadings were general denials. However, in their motions to set aside the judgments, defense counsel asserted a defense based on contract. No copy of the alleged contract was attached to the motion. It is insufficient to plead defendant has a meritorious defense without alleging facts to show such a defense. Edwards v. Rovin, 322 S.W.2d 139[6, 7] (Mo.App.1959). And, “While defendant should not be required at [the motion] stage to present extensive evidence or a full-blown defense, he should be required to make some showing to the court of the existence of at least an arguable theory of defense.” Luce, supra, at 535 S.W.2d 504[6—8]. The record is devoid of any showing of meritorious defense to plaintiff’s cases.

Defendants urge that plaintiff will suffer no hardship if the judgments are set aside. This is irrelevant. Where the defaulting party seeking relief fails to prove reasonable excuse and meritorious defense, the sole fact that no prejudice will accrue to his opponent by setting aside the judgment is insufficient to sustain his burden of proof. Luce, supra, at p. 507[2—4].

Defendants next contend the trial court’s refusal to set aside the judgment is a harsh and drastic exercise of its discretion. Our discussion of defendant’s first point on appeal disposes of this argument because we find there was no abuse of discretion.

Finally, defendants argue that the negligence of their attorney should not be imputed to them. The argument lacks merit. “The law regards the negligence of an attorney as the client’s own neglect and will give no relief from the consequences thereof.” Culp v. Culp, 216 S.W.2d 551[3] (Mo.App.1948). See also Hamm v. Hamm, 437 S.W.2d 449[10—11] (Mo.App.1969) and Dodge v. Safe-Guard Sales, Inc., 356 S.W.2d 101[2] (Mo.App.1962).

Defendants cite Robinson v. Clements, 409 S.W.2d 215[7] (Mo.App.1966) in support of their contention. That case is distinguishable. There, the fraudulent conduct of plaintiff’s attorney caused the neglect by defendant’s attorney. Accordingly, the court refused to impute the attorney’s negligence to his client. No fraud is involved here.

Judgments affirmed.

SMITH and McMILLIAN, JJ., concur.

      . When a defendant has pleaded, the case is no longer “in default.” Donnell v. Vigus Quarries, Inc., 457 S.W.2d 249[1] (Mo.App.1970). But when defendant thereafter inexcusably fails to timely appear for trial, the court may hear evidence and render judgment as if the case were “in default.” National City Bank v. Pattiz, 26 S.W.2d 815[1] (Mo.App.1930); J. G. Jackson Associates v. Mosley, 308 S.W.2d 774[3] (Mo.App.1958); 49 C.J.S. Judgments §§ 187, 198.


text:
    STATE of Missouri, Respondent, v. Bobby Ray JOINER, Appellant.
    No. 38806.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 7, 1978.
    Motion for Rehearing and/or Transfer Denied March 10, 1978.
    Application to Transfer Denied April 10, 1978.

      Cable, Seabaugh & Williams, Charles Sampson Williams, Jr., Kennett, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Chief Counsel-Jefferson City, Charles Baker, Pros. Atty., Kennett, for respondent.
   CLEMENS, Presiding Judge.

Defendant Bobby Ray Joiner was convicted of first degree murder and sentenced to life imprisonment. Defendant’s only points on appeal challenge the trial court’s rulings admitting into evidence his oral and tape-recorded statements. This challenged evidence came in over defense objections that the statements followed an illegal arrest, and also were coerced by threats of violence and denial of counsel. These in turn.

Defendant’s first challenge points to the admission of his incriminating statements on the ground he was illegally arrested in Florida. The state concedes the prosecuting attorney’s complaint, on which the arrest warrant was issued, did not state sufficient facts to warrant the issuing magistrate in finding probable cause existed. We assume therefore that defendant’s arrest was illegal, but hold this in itself does not vitiate his subsequent confessions.

This issue was decided in State v. Arrington, 529 S.W.2d 368[1] (Mo.1975): “ . . . we do not exclude a confession merely because it followed an illegal arrest but retain the test of voluntariness . . ..” For a full discussion of the principle see State v. Johnson, 530 S.W.2d 690, l.c. 692 (Mo.1975). We therefore consider other evidence of voluntariness.

The trial court was faced with two irreconcilable versions of defendant giving the oral and taped confessions upon his return from Florida.

According to defendant: After the return flight from Florida his ears were popping and he had a headache; he requested an attorney but was told none was available. A deputy sheriff told him if he did not give a statement he would be put in a cell with “St. Louis blacks.” This was done and when there defendant had a fight with one of the black prisoners. Later, defendant was asked to give an oral statement and said he did so only because he feared he would be put back in the same cell. Instead, defendant was then put in a cell with his brother. The next day defendant gave the incriminating tape-recorded statement after again asking for an attorney and again being threatened with return to a cell with black prisoners.

The state’s evidence concerning the confessions contrasted with defendant’s: He was placed in a cell with two black prisoners, but not at the direction of the two interrogating officers. They made neither threats nor promises and gave defendant “Miranda warnings,” and defendant then made the oral confession. Defendant was put in another cell overnight with his brother, a co-defendant. Defendant did not ask to consult with a lawyer. Defendant asked the next day to talk to his parents by phone and this was permitted. Defendant asked to talk with his brother in private and this request was granted. After the two had talked privately for some ten minutes they came out and defendant agreed to make the taped statement.

We have measured defendant’s challenge to the admission of his incriminating statements in the light of the land mark opinion of Judge Houser in State v. Hunter, 456 S.W.2d 314[3-5] (Mo.1970) where the admissibility of incriminating statements is analyzed. In accordance therewith we conclude the trial court did not err in ruling defendant’s statements were voluntary and therefore admissible.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


text:
    Roger HOOD, Appellant, v. NAETER BROTHERS PUBLISHING CO. and Don R. Smith, Respondents.
    No. 39067.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 7, 1978.
    Motion for Rehearing and/or Transfer Denied March 10, 1978.
    Application to Transfer Denied April 10, 1978.
    Spradling, Drusch, Dillard & Spradling, A. M. Spradling, III, Cape Girardeau, for appellant.
    Finch, Bradshaw, Strom & Steele, James A. Cochrane, III, Cape Girardeau, for respondents.
   CLEMENS, Presiding Judge.

Action for damages for allegedly outrageous conduct by a newspaper in publishing plaintiff’s name as witness to a murder. The trial court sustained defendants’ motion for summary judgment and plaintiff has appealed.

Plaintiff pleaded he was an employee of a liquor store and was working on the evening of August 7, 1976 when the store was robbed by two masked black men. Plaintiff witnessed the fatal shooting of a fellow employee. The next day the Cape Girar-deau police department released its report to the press, giving details of the robbery, including plaintiff’s name and address. At this time, plaintiff, a recent resident of Cape Girardeau, was not listed in the telephone directory. The following day defendant Naeter Brothers published a front-page article, written by defendant Don Smith, reporting the robbery and murder in the “Southeast Missourian.” The article identified plaintiff as a witness and printed his address. The two suspects were still at large.

Plaintiff further pleaded that as a result of the publication he has been in constant fear, has been forced to change his residence repeatedly, has become suspicious of all black persons and has been under the care of a psychiatrist.

Plaintiff contends defendants’ publication of his name and address constituted outrageous conduct because defendants knew or should have known the killers were still at large. He argues that the issue of culpability is for a jury to determine and, accordingly, the trial court erred in granting summary judgment for defendant.

The issue is whether the alleged acts constitute outrageous conduct as a matter of law. We say no. In Pretsky v. Southwestern Bell Telephone Co., 396 S.W.2d 566, 568 (Mo.1965), our supreme court adopted § 46 of the Restatement of the Law of Torts and its comment (d):

Outrageous Conduct Causing Severe Emotional Distress

“(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”

Comment (d) gives guidance on the meaning of “extreme” and “outrageous.”

“(d) Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’
The liability clearly does not extend to mere insults, indignities, threats, arro-gancies, petty oppression, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. . ."

Cases from other jurisdictions illustrate the type of conduct held to be outrageous. In Blakely v. Shortal’s Estate, 236 Iowa 787, 20 N.W.2d 28 (1945), the court upheld recovery against decedent’s estate where the deceased slit his throat in plaintiff’s kitchen and plaintiff suffered shock upon finding the body. And in Great Atlantic and Pacific Tea Co. v. Roch, 160 Md. 189, 153 A. 22 (1931), the court affirmed a jury verdict for plaintiff where defendant delivered a dead rat in a package instead of the bread plaintiff had ordered. See also Savage v. Boies, 77 Ariz. 355, 272 P.2d 349 (1954).

Missouri cases involving outrageous conduct have dealt with creditors harassing debtors. In Liberty Loan Corp. of Antioch v. Brown, 493 S.W.2d 664[4] (Mo.App.1973), the court upheld a verdict for plaintiff where defendant made harassing, abusive and threatening phone calls to plaintiff in order to collect a debt. See also Kuehner v. Denny-Loan Corp., 518 S.W.2d 94 (Mo.App.1974). In Warren v. Parrish, 436 S.W.2d 670[6] (Mo.1969), the court upheld a count of plaintiff’s petition alleging outrageous conduct where plaintiff pleaded that defendant, in order to collect a debt, put plaintiff’s car on a lift for three hours, threatened plaintiff and refused to return the car until payment was made.

In contrast, in Pretsky, supra, at 396 S.W.2d 566 the court ruled plaintiff failed to state a cause of action for outrageous conduct where she alleged defendant’s employee gained entrance to her house by falsely stating there was trouble on her telephone line and that he must enter to correct the problem. The court followed § 46 of the Restatement and held defendant’s conduct was not actionable, ruling: “The facts pleaded do not constitute what could be considered to be extreme and outrageous conduct . . .” and the petition “does not contain averments which invoke substantive principles of law which entitle plaintiff to relief.”

Similarly, in Nelson v. Grice, 411 S.W.2d 117[4] (Mo.1967), the court held no outrageous conduct was shown. There, defendants had leased property to plaintiff on which he ran a grocery store. Subsequently, defendants built a second building on the property and told plaintiff he could rent it at the same rate. Instead, defendants raised the rent, harassed plaintiff and operated their own store in competition. As a result, plaintiff suffered a heart attack and attempted suicide. The supreme court, based on that part of Restatement quoted in Presky, supra, reversed a jury verdict for plaintiff, holding no outrageous conduct was shown.

We hold the conduct alleged here is not of the extreme and outrageous nature contemplated by § 46 of the Restatement. The publication of the name and address of the sole witness to a violent crime at a time when the criminals are at large may be unwise but it does not go beyond the bounds of human decency. Furthermore, the published information was a matter of public record and readily available to all interested persons.

We hold the trial court did not err in rendering summary judgment against plaintiff.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.

      . Plaintiff complains of the dissemination of his name and address to the public. Although neither party has raised the first amendment issue, the case of Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), is relevant. The supreme court held that a state may not by statute make the broadcast of a rape victim’s name the basis for civil liability for invasion of privacy where the information is a matter of judicial record and open for public inspection. At l.c. 496, 95 S.Ct. at 1046, the court explained: “We are reluctant to embark on a course that would make public records generally available to the media but forbid their publication if offensive to the sensibilities of the supposed reasonable man. Such a rule would make it very difficult for the media to inform citizens about the public business and yet stay within the law. The rule would invite timidity and self-censorship and very likely lead to the suppression of many items that would otherwise be published and that should be made available to the public.


text:
    STATE of Missouri, Respondent, v. Gerald R. CARROLL, Appellant.
    No. 38219.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 7, 1978.

      Daniel V. O’Brien, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Ronald B. Safren, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

After certification by the juvenile court, the 16-year-old defendant was convicted in the circuit court for manslaughter and armed robbery and sentenced to 15 years’ imprisonment.

Defendant’s principal contention on appeal is that the trial court erred in denying his motion to suppress his confession because his pretrial counsel was incompetent in failing to prevent him from confessing. Defendant also contends that after the jury had deliberated three hours the trial court erred in giving MAI-CR 4.50 and MAI-CR 1.10.

The evidence showed the victim was approached by four boys who demanded his valuables. After having complied he called out for assistance; there was a gun shot and he was mortally wounded. Defendant’s confession corroborated that evidence and admitted holding the gun when it fired.

Defendant contends his pre-trial counsel coerced him to confess—or failed to prevent him from doing so. We treat this contention as an attack on the voluntariness of the confession.

A prima facie showing of voluntariness is made when at all stages of the interrogation it appears the defendant is informed of his constitutional rights, that he understood those rights; that no coercion, promises, threats, or other unlawful means of inducement were employed. State v. Gibson, 547 S.W.2d 861[3] (Mo.App.1977).

The undisputed evidence here is that defendant was given Miranda warnings by a juvenile officer who explained each of those rights to him. He, his mother, the juvenile officer and his pre-trial counsel acknowledged in writing that he had been given those rights. The evidence about promises, coercion or other forms of inducement was conflicting. The credibility of witnesses testifying on voluntariness is within the discretion of the trial court. State v. Mussman, 526 S.W.2d 62, 1. c. 64 (Mo.App.1975).

Defendant did not testify on the motion to suppress, but his mother testified his pre-trial counsel repeatedly told her son to make a statement to the juvenile authorities.

Defendant’s pre-trial counsel testified he never urged defendant to make a statement. Rather, he initially advised defendant not to do so. When defendant expressed a determination to make a statement, counsel agreed to let him do so because he felt the statement could have future benefits in plea bargaining.

The trial court exercised its discretion in believing the testimony of counsel, and in determining the confession was voluntary. We find no error in denying defendant’s motion to suppress.

Defendant also contends the court improperly gave MAI-CR 4.50 and MAI-CR 1.10 after the jury had deliberated only three hours and had not indicated their inability to reach a verdict. MAI-CR 4.50 apprises the jury it has the primary duty to fix punishment but that the court will do so if the jury is unable to agree. Giving it is discretionary with the trial court. State v. Lawson, 501 S.W.2d 176, 180 (Mo.App.1973). The giving of MAI-CR 1.10, the “hammer” instruction, is also discretionary with the trial court. State v. Doepke, 536 S.W.2d 950[6] (Mo.App.1976). We find no abuse of discretion.

Judgment affirmed.

SMITH, J., concurs.

McMILLIAN, J., concurs in results.