author: WINTERSHEIMER, Judge.

text:
    COMMONWEALTH of Kentucky, Appellant, v. James N. MONROE, Appellee.
    Court of Appeals of Kentucky.
    Jan. 19, 1979.
    Discretionary Review Denied June 5, 1979.

      Robert F. Stephens, Atty. Gen., George Geohegan III, Asst. Atty. Gen., Frankfort, William P. Croley, Asst. Commonwealth Atty., 12th Judicial Dist., LaGrange, for appellant.
    Jack Emory Farley, Public Advocate, William M. Radigan, Asst. Public Advocate, Commonwealth of Kentucky, Frankfort, for appellee.
    Before GANT, WHITE and WINTER-SHEIMER, JJ.
   WINTERSHEIMER, Judge.

This appeal is from an order entered February 9, 1978, dismissing an indictment for second degree escape from the Kentucky State Reformatory, brought against the ap-pellee pursuant to KRS 440.450, Interstate Agreement on Detainers, wherein the trial court held that the appellee was within the terms of the detainer act by virtue of a warden’s warrant, and that a trial had not been commenced within 180 days, as required by the detainer act.

On or about June 21, 1975, the appellee allegedly escaped from the Kentucky State Reformatory at LaGrange. Subsequently, he was convicted on a different charge in Ohio, and imprisoned at the London Correctional Institute at London, Ohio. A warden’s warrant, pursuant to KRS 440.010, charging the appellee with escape was issued, and on November 2, 1976, a detainer was lodged against the appellee at the Ohio prison. Appellee made a demand for final disposition and speedy trial, pursuant to the Interstate Agreement on Detainers, KRS 440.450. This demand was received by the Oldham Commonwealth Attorney’s office on November 6, 1976. In a letter dated December 1, 1976, the Commonwealth Attorney advised the appellee that this was not a detainer subject to the uniform act, but that his trial would be conducted in March of 1977. In a letter dated February 1, 1977, the prosecutor advised the Ohio prison authorities that he was withdrawing the December 1976 request for temporary custody of the appellee because there was not a warrant or indictment on file. The appellee was indicted for the offense of escape in February 1977, and a bench warrant and detainer were issued on February 24, 1977. He made a second demand for speedy trial in August of 1977. After a series of other legal activities, appellee was returned to the Kentucky State Reformatory on November 2,1977. A trial was scheduled on February 10, 1978. Following an evidentiary hearing on the motion to dismiss the indictment on February 6, 1978, the trial court dismissed the escape indictment with prejudice. This appeal followed.

Appellant sets out the argument that the trial court committed reversible error in finding that a warden’s warrant is an untried complaint within the meaning of KRS 440.450, the Interstate Agreement on De-tainers, and that the time for bringing a defendant to trial under the act begins to run with the placing of a detainer as a result of a warden’s warrant.

Appellee argues that the issue presented by the appellant has not been properly preserved for appellate review and that the trial court properly concluded that a warden’s warrant, pursuant to KRS 440.010, is a complaint within the purview of the Interstate Agreement on Detainers.

This Court reverses the judgment of the trial court and remands this matter for action consistent with this opinion.

The warden’s warrant issued pursuant to statute is only a notice to appropriate authorities that an individual is an escapee from a penal institution in Kentucky. In and of itself, it is not a request for a detainer which would be subject to the terms of the Interstate Agreement on De-tainers.

The types of detainers covered by the Interstate Agreement are specifically set out therein and are limited to untried indictments, informations and complaints, and certain parole warrants. We believe there is significance in enumerating certain categories of detainers while omitting others.

Here, the appellee did not suffer any loss of liberty as a result of the detainer placed against him because he was already imprisoned for a different offense in Ohio. The appellee was brought to Kentucky as a result of a demand having been made prior to, or at least simultaneously with, the release from the Ohio prison.

The warden’s warrant does not charge the escapee with the crime of escape. It is only a notice of the fact of such escape. The detainer is based on the original charge which caused the imprisonment and not on any new offense of escape.

A new offense charging the crime of escape was not lodged against the appellee until February 1977. He could not have been entitled to a speedy trial because the appellee already had an original trial on the offense for which he was imprisoned.

Appellee’s first demand for a speedy trial was premature because no charge was then pending. In August 1977 he filed a proper demand for a speedy trial and the case was ultimately set for February 10, 1978, within 180 days from his proper demand.

Letters and other communications from the Commonwealth Attorney do not constitute a complaint, indictment or other proceeding enumerated in the Act. The initiation of the escape charge was the indictment in February 1977.

It appears to us that the action of the trial court is an improper extension of the application of KRS 440.450 to a detainer based on a status not enumerated in the act. Accordingly, it is our opinion that the trial court erred in dismissing the indictment for escape against the appellee. This matter is remanded to the trial court for action consistent with this opinion.

All concur.


source: Caselaw Access Project

author: PARK, Judge.

license: Public Domain

text:
    James H. MILBY, Appellant, v. Clell R. MEARS, Appellee.
    Court of Appeals of Kentucky.
    Jan. 26, 1979.

    Rehearing Denied March 23, 1979.
    Discretionary Review Denied June 5, 1979.

      Morris Butler, Greensburg, for appellant.
    John Smith, Lebanon, for appellee.
    Before HAYES, PARK and REYNOLDS, JJ.

       The decision of the panel was made prior to January 1, 1979, but the opinion was not rendered until this date.

   PARK, Judge.

This case is an appeal from an order of the Green Circuit Court granting a motion for judgment n. o. v. and dismissing the complaint of the plaintiff-appellant, James H. Milby, in an action arising out of an injury sustained by Milby while working in the tobacco barn of the defendant-appellee, Clell R. Mears.

Two questions are presented on appeal. First, did Milby waive his right to challenge the trial court’s findings that he was con-tributorily negligent as a matter of law by failing to brief that issue in his original brief on appeal? May this court nevertheless consider the issue as raised in his reply brief? Second, if the issues are properly before this court, does the evidence support the trial court’s action in granting judgment n. o. v. on the grounds that (1) there was no evidence that Mears had actual notice of the defect; and (2) Milby was con-tributorily negligent as a matter of law?

STATEMENT OF FACTS

In the spring of 1975, Milby rented a plot for tobacco on the farm of Mears. The parties entered into the agreement on a “50-50” basis. Milby was to provide all the labor for the crop while Mears was to provide the land and the barn for housing the tobacco. The parties agreed to split the cost of fertilizers and plant bed materials. They were to share equally in the proceeds from the crop.

In preparation, Mears performed considerable repair work on the barn, which had not been used in several years. In his testimony, Mears said that he had inspected the interior of the barn, including all of the tier poles and stringers.

Later, while Milby was housing tobacco in the barn, a stringer broke causing him to fall. As a result of the fall, Milby sustained severe injuries to his left arm. Milby testified that he was not warned of any defects in the barn, and Mears admitted that he had not warned Milby of any defects.

The jury returned a verdict for Milby in the sum of $38,000. The trial court entered judgment upon that verdict but later sustained Mears’s motion for judgment notwithstanding the verdict.

The trial court concluded that the legal relationship between Milby and Mears was that of landlord and tenant, rather than that of master and servant, or that of joint adventurers, as had been alternatively pled. That holding is not questioned on appeal. The trial court then held (1) that no evidence existed that Mears had actual prior knowledge of the defective stringer that broke causing Milby’s injury; and (2) that Milby, as a matter of law, failed to exercise ordinary care for his own safety, and that such failure on his part was the cause of his injury.

I

The first issue concerns Milby’s failure to address the issue of contributory negligence in his original brief on appeal. It is an established principle of law in Kentucky that an appeal may be dismissed when the appellant fails to file a brief in support of his position. City of St. Matthews v. McGalin, Ky., 528 S.W.2d 667 (1975); Barker v. Lappas, Ky., 412 S.W.2d 263 (1967); Klocke v. Vaughn, Ky., 291 S.W.2d 22 (1956); CR 76.12(8)(b). Even when briefs have been filed, a reviewing court will generally confine itself to errors pointed out in the briefs and will not search the record for errors. Ballard v. King, Ky., 373 S.W.2d 591 (1963). An appellant’s failure to discuss particular errors in his brief is the same as if no brief at all had been filed on those issues. R. E. Gaddie, Inc. v. Price, Ky., 528 S.W.2d 708 (1975). Consequently, the trial court’s determination of those issues not briefed upon appeal is ordinarily affirmed. Stansbury v. Smith, Ky., 424 S.W.2d 571 (1968); Hall v. Kolb, Ky., 374 S.W.2d 854 (1964); Herrick v. Wills, Ky., 383 S.W.2d 275 (1960); Craft v. Hall, Ky., 275 S.W.2d 410 (1955). Mears asserts that these principles must be applied to Milby’s failure to discuss the issue of contributory negligence in his original brief. Because contributory negligence was an alternative basis for the judgment n. o. v., Mears argues that the judgment must be affirmed.

However, this is not a case in which an appellant has completely ignored an issue. While Milby makes no reference to the trial court’s holding on contributory negligence in his original brief on appeal, the issue was fully discussed in his reply brief. Therefore, we must consider the effect of raising the issue at that point in the appellate proceedings.

There are no Kentucky cases on the subject of reply briefs. CR 76.12(1) authorizes such reply briefs to be filed by appellants or cross-appellants, and CR 76.12(4)(f) states that reply briefs shall be confined to points raised in the briefs to which they are addressed, and shall not reiterate arguments already presented.

The general rule in other jurisdictions is that the function of the reply brief is rebuttal and that it is improper to raise new points or new grounds for reversal therein. See e. g. Morris v. Reed, Mo.App., 510 S.W.2d 234 (1974); Spence v. Downham, 140 Ind.App. 385, 223 N.E.2d 587 (1967); Lunney v. Southern Ry. Co., 272 Ala. 611, 133 So.2d 247 (1961). Several courts have held that parties may not utilize reply briefs to cure defects or omissions in the original brief on appeal. See Bayley v. Kane, 16 Wash.App. 877, 560 P.2d 1165 (1977); Kinsaul v. Florala Tel. Co., 285 Ala. 16, 228 So.2d 777 (1969); Michaels v. Johnson, 140 Ind.App. 389, 223 N.E.2d 585 (1967). Nevertheless, the rule is not an absolute, and many courts have permitted exceptions where good cause is shown. See e. g. Protection Mutual Ins. v. Kansas City, Mo. App., 551 S.W.2d 909 (1977); Harrison v. Pittman, Tenn., 534 S.W.2d 311 (1976); Hux v. Raben, 38 I11.2d 223, 230 N.E.2d 831 (1967).

When a judgment is based upon alternative grounds, the judgment must be affirmed on appeal unless both grounds are erroneous. Consequently, good appellate practice dictates that the appellant’s original brief should address every ground upon which the judgment is based. Only in that way may the appellee respond in any orderly fashion.

In this case, Mears was placed in a dilemma by Milby’s initial failure to brief the issue on contributory negligence. If he ignored the merits of the issue, Mears would run the risk that Milby would discuss the merits of the contributory negligence issue in his reply brief. Because this is an issue of first impression in Kentucky, Mears would not know whether this court would grant a motion pursuant to CR 76.12 to strike a reply brief which violated CR 76.-12(4)(f) by raising new points. Mears followed the prudent course by addressing the issue in his appellee’s brief even though it now enables Milby to argue that his reply brief conforms to CR 76.12(4)(f) because it is confined to points raised for the first time in the appellee’s brief.

We conclude that the issue of contributory negligence should have been addressed in the Milby’s original brief. Nevertheless, noncompliance with the rules governing briefs does not require that a brief always be stricken. The appropriate remedy for such non-compliance with the rules must be left to the sound discretion of the appellate court. Burberry v. Bridges, Ky., 427 S.W.2d 583 (1968).

In this case, Mears has suffered no prejudice as a result of Milby’s failure to address the contributory negligence issue prior to the reply brief. In his appellee’s brief, Mears thoroughly argued the merits of the issue of contributory negligence. He has shown no need to respond to Milby’s reply brief. Both parties discussed the issue at oral argument. Having in mind that the procedural question is a matter of first impression in Kentucky, we conclude that we should consider the merits of the appeal.

The reply brief is not a device for raising new issues which are essential to the success of the appeal. In the future, it may be appropriate to impose more severe penalties by granting motions to strike reply briefs which raise new issues which should have been the subject of the appellant’s original brief.

II

Having determined to consider the merits of Milby’s appeal, we must consider whether the evidence in the record supports the jury’s verdict, thus rendering the trial court’s action in granting judgment n. o. v. improper.

It has been a longstanding rule in Kentucky that a tenant takes the premises as he finds them. The landlord need not exercise even ordinary care to furnish reasonably safe premises, and he is not generally liable for injuries caused by defects therein. E. g. Dice’s Adm’r v. Zweigart’s Adm’r, 161 Ky. 646, 171 S.W. 195 (1914). Nevertheless, it is an established principle that a landlord has a duty to disclose. a known defective condition which is unknown to the tenant and not discoverable through reasonable inspection. See Parson v. Whitlow, Ky., 453 S.W.2d 270 (1970); Carver v. Howard, Ky., 280 S.W.2d 708 (1955); Larkin v. Baker, 308 Ky. 364, 214 S.W.2d 379 (1948); Consolidation Coal Co. v. Zarirs, 222 Ky. 238, 300 S.W. 615 (1927); Speckman v. Schuster, 183 Ky. 326, 209 S.W. 372 (1919). However, the tenant may not recover from the landlord if he failed to exercise ordinary care for his own safety and this contributed to his injury. See Houchin v. Willow Ave. Realty Co., Ky., 453 S.W.2d 560 (1970); Totten v. Parker, Ky., 428 S.W.2d 231 (1967); Spurling v. Paterno-Mayflower, Inc., Ky., 358 S.W.2d 503 (1962); Wright & Taylor, Inc. v. Smith, Ky., 315 S.W.2d 624 (1958).

In this case, the issues of the landlord’s negligence and the tenant’s contributory negligence were submitted to the jury. The trial judge instructed the jury that they could find for Milby only if they believed that Mears had actual knowledge of the defect in the stringer and had failed to warn Milby of the defect. The court also instructed the jury that Milby had a duty to inspect the barn and to exercise ordinary care for his own safety. The jury found for Milby on both issues. The trial court entered judgment n. o. v. for Mears because, in its opinion, there was no evidence that Mears had actual knowledge of the defect and because Milby was contributorily negligent as a matter of law.

We conclude that there was sufficient evidence to justify submitting the issue of Mears’s negligence to the jury. First, there was evidence from which the jury could find that a prior defect existed in the stringer which broke under Milby’s weight. Both Milby and his uncle testified that they inspected the stringer after the fall and observed an old split at the point where it broke, causing Milby’s fall. Second, Mears admitted that he had inspected every tier pole and stringer in the barn, including the stringer which broke, and that he had made necessary repairs. He testified, “I insured that [the stringers] were all nailed and put some additional nails in them and looked to see if they were defective in any way.” He was under no duty to inspect for defects. However, having admitted that he did look, Mears may not claim that he did not see. See e. g. Renfro v. Fox, Ky., 418 S.W.2d 761 (1967); Kentucky Bus Lines v. Wilson, Ky., 258 S.W.2d 486 (1953). Certainly, there was evidence from which the jury could find that a readily observable defect existed and that Mears had actual knowledge of the defect as a result of his inspection of the tier poles and stringers.

However, we believe the trial court was correct in its finding that Milby was contributorily negligent as a matter of law. In determining whether a person is contrib-utorily negligent, the surrounding circumstances must be considered, such as the exigency under which he acted, and his knowledge, actual or imputed, of the danger and the nature of the risk incurred. E. g. Allen v. Dillman, Ky., 249 S.W.2d 23 (1952).

As we stated above, a tenant may not recover from a landlord for failure to disclose a defective condition of the premises if the tenant has knowledge of the condition or could discover the condition by reasonable inspection. See e. g. Speckman v. Schuster, supra. In this case, Milby had every opportunity to inspect the premises prior to the time when the housing of the tobacco began and yet he neglected to do so. Although he testified that he was in a hurry to house the tobacco on the day in question because it had begun to rain and because he was paying hourly wages to his employees, such circumstances could not excuse his failure to make an inspection prior to the time he commenced housing tobacco. Had Milby made such an inspection he should have observed the defect. If the defect was apparent to Mears during his inspection, by the same token it would have been apparent had Milby inspected the barn. See Spurling v. Paterno-Mayflower, Inc., supra. Milby was unaware of the inspection and repairs made by Mears; thus Milby did not rely on any representations by Mears respecting the safety of the barn.

Milby was the sole witness on the issue of the care he exercised for his own safety, and his testimony affirmatively shows that he failed to exercise any care for his own safety. No jury issues existed. Pease v. Nichols, Ky., 316 S.W.2d 849 (1958). In this case, Milby admitted that he had failed to make any examination of the tier poles and stringers in the barn before his fall even though he testified that it was customary to do so. At trial, Milby testified:

Q. Did you look at the stringer or did you look at the tier pole before you got out on it?
A. I didn’t make any examination because this barn was the barn the tobacco was put in and I took it for granted that the barn was suitable for that purpose.
Q. Did you look at the stringer before you went out there?
A. No sir.
Q. Did you test the tier pole, . either of the two tier poles that you stood on? I assume you were standing on two tier poles.
A. When we got started When you have hands hired, (I think most of you here know this) when you are paying a considerable sum for hourly wages, you’re trying to house as fast as you can. As we moved on down, well I didn’t jump up and down on them or anything like that. No.
Q. But the first time you did do that?
A. When I climb up in a barn you always kind of touch the tier pole and see how steady it is and then you climb on up.
Q. But you didn’t do that to the one where the stringer broke?
A. No sir.

We emphasize that this case involves a tenant and not an invitee such as a temporary employee housing tobacco. An invitee is not obliged to make an inspection of the premises to assure himself that they are safe, and he is contributorily negligent only when the peril is obvious to a person of ordinary prudence in the situation. Dean v. Martz, Ky., 329 S.W.2d 371 (1959). The tenant, on the other hand, has a right to occupy the premises over a longer period of time. Because he has more opportunity to inspect, the law requires that the tenant take greater precautions for his own safety.

Because we find that the evidence clearly demonstrates that Milby failed to exercise any care for his safety and that his neglect was a substantial factor in his fall, we affirm the trial court’s holding that Milby was contributorily negligent as a matter of law.

The judgment of the circuit court is affirmed.

All concur.

      . This language in CR 76.12(4)(f) is new and was not found in the corollary provision of RCA 1.240.


author: WHITE, Judge.

text:
    Sharon PHILLIPS, Appellant, v. BOARD OF EDUCATION OF MUHLENBERG COUNTY, Kentucky, Ben Topmiller, Jr., Individually and in his official capacity as Superintendent for the Board of Education of Muhlenberg County, Kentucky, Lucky K. Kirby, Individually and in his official capacity as Chairman and member of the Board of Education of Muhlenberg County, Kentucky, Charles D. Armond, Charles Edwards, Theron V. Green, All individually and in their individual capacities as members of the Board of Education of Muhlenberg County, Kentucky, Thomas H. Warman, Individually, and Evelyn Lindsay, In her Individual capacity as a member of the Board of Education of Muhlenberg County, Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Jan. 26, 1979.
    Rehearing Denied May 11, 1979.

      John F. Stewart, Rex Dunn, Louisville, for appellant.
    Rees Kinney, Jarvis, Payton & Kinney, Greenville, F. C. Bryan, John C. Fogle, Bryan, Fogle & Riggs, Mount Sterling, for appellees.
    Before WHITE, HOGGE and VANCE, JJ.
   WHITE, Judge.

Appellant Sharon Phillips, a nontenured teacher, contests the sufficiency of grounds recited by appellee, the employing school board, for the nonrenewal of her teaching contract. The Muhlenberg Circuit Court dismissed appellant’s complaint and found the school board had complied with KRS 161.750, requiring school boards to furnish upon request a written statement of the grounds upon which the nonrenewal of limited contracts is based.

Appellant Phillips had been employed by the Muhlenberg County Board of Education as a teacher under a limited contract for the school year 1976-77. By letter dated April 11, 1977, the Board informed Phillips that she would not be rehired for the coming 1977-78 school year. Phillips tendered a written request, dated April 18, 1977, for a written statement detailing the specific and complete grounds for nonrenewal of her contract. In reply, the Board informed Phillips that it was under no obligation to retain nontenured teachers, that the superintendent had recommended Phillips’ contract not be renewed, and that the Board had accepted this recommendation and acted accordingly, all pursuant to Kentucky statute.

Phillips contends the Board’s statement was merely a generic recitation of KRS 161.750 requirements for nonrenewal of limited contracts and did not comply with subsection (2) of the provision, which requires that the Board’s requested written statement contain “the specific, detailed, and complete statement of grounds upon which the nonrenewal of contract is based.” The Board counters it complied with statute requirements and if the appellant’s stance were accepted, it would effectuate a change in status of nontenured teachers to basically one of tenure.

This court recognizes that superintendents and school boards are vested with broad discretion in the administration of schools. Snapp v. Deskins, Ky., 450 S.W.2d 246, 252 (1970). Statutory guidelines have been enacted, however, establishing procedures which must be followed by the board and delineating boundaries of arbitrary action. KRS 161.750 is such a statute. In addition to requiring a school board to provide upon request a written statement of substantive grounds for nonrenewal of a limited contract, KRS 161.750(3) affords the teacher a remedy for the Board’s noncompliance. Though limited in nature, subsection (3) states in part:

Upon failure of the employing board of education ... to provide the written statement of grounds required by subsection (2) of this section the teacher shall receive a contract of employment for the next school year.

The teacher’s only remedy when the Board fails to provide the required statement is that a teaching contract for the next year will issue.

We recognize that the Board is under no compulsion to hire a nontenured teacher for a forthcoming school year and that a nontenured teacher is afforded no right to a hearing upon suspension unless some allegation of a constitutionally suspect classification is made as the basis for nonre-newal of contract. Bowlin v. Thomas, Ky. App., 548 S.W.2d 515, 519 (1977). Phillips makes no such allegation, nor does she claim a right to a hearing. All she asks is that the written statement from the board contain “the specific, detailed, and complete statement of grounds upon which the non-renewal of contract is based.”

It is evident that the Board’s reply to Phillips’ request for a written statement of grounds was merely a recital of the statutory procedure required for nonrenewal. The Board contends this adequately meets statute requirements. We do not agree. KRS 161.750(2) requires “the specific, detailed and complete statement of grounds” (emphasis added). If we were to accept the Board’s contention that it complied with the statute by merely restating its procedures, then the Board would hereafter never have to supply substantive reasons for not rehiring a nontenured teacher. To allow this would clearly circumvent the statute.

Appellee argues that this case should not be reversed because, even if specific reasons are given, the dismissed teacher has no further alternatives against the Board. In support of its argument, appellee cites Sparks v. Board of Education of Ashland Independent School District, Ky.App., 549 S.W.2d 323 (1977), and Bowlin, supra.

These cases involved nonrenewal of limited contracts prior to the 1976 amendment to KRS 161.750. The old statute, unlike the present, did not provide for automatic renewal of the contract if the specific, detailed, and complete grounds were not given as requested. We think this remedial provision is sufficient to distinguish this case from the above because the nontenured teacher now has some alternative not recognized heretofore.

As this court stated in Gaines v. Board of Education of Dayton, Independent School District, Ky.App., 554 S.W.2d 394, 395 (1977): “It would seem obvious that the underlying intent of KRS 161.750(2) is to insure . . that the teacher has a right to know why he is not being re-employed, so that the-situation may be corrected if it is within the power of the teacher to do so.”

The judgment is reversed and remanded for further proceedings consistent with this opinion.

VANCE, J., concurs.

HOGGE, J., dissents.


author: BARDGETT, Judge. SEILER, Judge, DONNELLY, Judge,

text:
    Solomon SEALES, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 60744.
    Supreme Court of Missouri, En Banc.
    April 25, 1979.
    Respondent’s Motion for Clarification Denied and Opinion Modified On Court’s Own Motion May 17, 1979.
    Mary-Louise Moran, Asst. Public Defender, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Weldon W. Perry, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
   BARDGETT, Judge.

The appellant, Solomon Seales, was convicted of first-degree murder by a jury in the circuit court of the city of St. Louis, Missouri, and his punishment was assessed at life imprisonment which was affirmed on appeal by this court. State v. Seals [Seales], 515 S.W.2d 481 (Mo.1974).

On March 5, 1976, appellant filed a motion to vacate under rule 27.26. The trial court appointed counsel for appellant and subsequently the state filed a motion to dismiss appellant’s 27.26 motion. The trial court set the state’s motion to dismiss for argument and attorneys for both parties appeared and argued the motion. The court took the matter under submission and subsequently sustained the state’s motion to dismiss appellant’s 27.26 motion and, therefore, there was no evidentiary hearing on the 27.26 motion. The appellant took his appeal to the Missouri Court of Appeals, Eastern District, where the trial court’s order was affirmed.

This court sustained appellant’s motion to transfer after opinion. The only ground alleged in that motion was that the court of appeals opinion was contrary to this court’s opinion in Wheatley v. State, 559 S.W.2d 526 (Mo.banc 1977), in that the circuit court allegedly, after the filing of movant-appel-lant’s pro se 27.26 motion, then appointed counsel to represent appellant and then dismissed movant’s petition without notice to the attorney or hearing. It could not be discerned from the court of appeals opinion that the facts and sequence of events were anything different from that which was alleged in the motion to transfer, and the state filed no suggestions. As noted, this court transferred the cause here.

Appellant contends, as noted supra, the trial court erred in dismissing appellant’s motion, after appointment of counsel for appellant, allegedly without notice to appellant’s counsel or hearing. It was in this respect that appellant claimed the trial court violated the ruling of Wheatley v. State, supra. The point has no merit. The trial court did precisely what was required by Wheatley in that, after appointing counsel for movant and before dismissing the 27.26 motion by sustaining the state’s motion to dismiss, the trial court afforded movant’s counsel the opportunity to be heard on the matter by giving notice and setting the same for a hearing. The trial court obviously has the duty to rule on a motion to dismiss and has the jurisdiction to either sustain it or overrule it. All Wheat-ley required is that movant’s counsel be given an opportunity to be heard before the trial court dismisses a 27.26 motion for failure to state a claim, and that was done in this instance.

Appellant also contends that the court erred in failing to afford him an evidentiary hearing on his 27.26 motion. This, of course, was accomplished by the sustaining of the state’s motion to dismiss the 27.26 motion. Among the allegations in the movant’s 27.26 motion was the assertion that his trial counsel was ineffective in that he failed to subpoena two named witnesses who appellant says would have testified that he was not the party responsible for the death of Ronald Lane, the deceased. The state argues that this was merely con-clusory and that the record refuted these allegations because movant testified in the criminal cause that he did kill Ronald Lane but that he did it in self-defense and also that there were only two other persons present. We believe the allegations made by the movant in the motion were sufficiently factual in nature to have warranted a hearing on the motion. It may very well be that the state could have required the movant to state the matter with more particularity; however, insofar as the motion to dismiss is concerned, we believe the motion was sufficient to have required the overruling of the motion to dismiss and to hold an evidentiary hearing. The meaning of the allegations may or may not be that the witnesses would allegedly testify that the movant did not kill the deceased; however, the allegations are also subject to the interpretation that the movant would testify to facts from which the jury could find that the movant, although having killed the deceased, was not guilty of first-degree murder and in that sense was not legally responsible. The trial court erred in failing to hold an evidentiary hearing in the matter and for that reason the cause must be reversed and remanded for an evidentiary hearing on movant’s 27.26 motion which may, of course, be amended.

It has come to the attention of the court that the criteria for adjudicating the question as to whether or not a defendant in a criminal case has been deprived of his constitutional right to counsel are expressed differently in holdings of this court and in the decisions of the United States Court of Appeals for the Eighth Circuit (of which Missouri is a part) when that court has decided cases involving state prisoners where the question was alleged ineffective assistance of counsel. Since this case is to be remanded for an evidentiary hearing, we believe it appropriate to take up this matter at this time.

Recently this court has utilized “fair trial” as being the concept which must be violated before a movant proceeding under rule 27.26 can obtain a new criminal trial as a consequence of inadequate assistance of counsel. Sims v. State, 496 S.W.2d 815, 817 (Mo.1974). The test to be utilized was stated differently in Reynolds v. Mabry, 574 F.2d 978 (8th Cir. 1978). In that case the question was whether or not a state prisoner of Arkansas had been deprived of adequate counsel in his criminal trial. Reynolds, the prisoner, contended that he had not been afforded effective assistance of counsel in a postconviction relief proceeding in the state courts of Arkansas. His motion there was overruled and thereafter he sought a writ of habeas corpus in the federal district court. An evidentiary hearing was held after which the district court rejected Reynolds’ claims and he appealed to the Eighth Circuit. The district court decision was affirmed; however, in the process of doing so, the Eighth Circuit enunciated certain criteria to be used in determining the question of effective assistance of counsel:

“The accepted standard for effectiveness of trial counsel is now established as that degree of performance which conforms to the care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances. United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977). Furthermore, there is a presumption that counsel is competent, Thomas v. Wyrick, 535 F.2d 407, 413 (8th Cir.), cert. denied, 429 U.S. 868, 97 S.Ct. 178, 50 L.Ed.2d 148 (1976), and the petitioner must shoulder a heavy burden to override this presumption. Id.; Crismon v. United States, 510 F.2d 356, 358 (8th Cir. 1975); McQueen v. Swenson (McQueen I), 498 F.2d 207, 214 (8th Cir. 1974). Finally, the exercise of reasonable judgment, even when hindsight reveals a mistake in that judgment, does not render a lawyer negligent or lacking in competence in rendering his services.” 574 F.2d at 979.

As is obvious, the foregoing states a standard of conduct for defense counsel; however, the Eighth Circuit required something further to be shown and found before a new criminal trial would be granted as postconviction relief. As to this the Eighth Circuit stated, 574 F.2d 980:

“In recent cases where the attorney’s failure to provide essential services has been challenged this circuit has followed a flexible approach in requiring a petitioner to make some initial showing that his counsel’s conduct may have prejudiced him in some way before a conviction will be reversed. .
“Decisions of two circuits have nevertheless questioned the need for a separate showing of prejudice in effective assistance cases. The Sixth Circuit in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), held that once ineffectiveness has been established, ‘(h)armless error tests do not apply . . . .’ The Ninth Circuit established a similar rule in Cooper v. Fitzharris, 551 F.2d 1162, 1165 (9th Cir. 1977), where the court held, citing Geders v. United States, [425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592] supra, and Herring v. New York, [422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593] supra, that ‘once a petitioner has carried his burden of establishing ineffectiveness of counsel, his conviction must be reversed without regard to the presence or absence of prejudice.’ Although the Supreme Court’s recent decision in Holloway v. Arkansas, [435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426] supra, may be viewed as supportive of the results reached by the Sixth and the Ninth Circuits, the effect of the ease may be limited to conflict of interest situations.
“In measuring effective assistance of counsel the question of harm or prejudice is often intertwined with the question of whether the alleged conduct of counsel constituted a breach of duty in light of the factual circumstances of the case. Counsel’s exercise of competent services cannot be measured in the abstract or in a hypothetical sense. Whether we speak in terms of prejudice or some other standard, there must still be a reasonable nexus or relationship of the alleged breach of duty with the duty to act under the facts of the case. Counsel does not fail to render effective service if there is little or no likelihood that a reasonable lawyer under similar circumstances would consider the alleged defense reasonably essential to the case. As the Sixth Circuit has stated, counsel’s duty is to assert all apparent ‘substantial defenses’ available. See Beasley v. United States, supra at 696.”

In the recent case of Witham v. Mabry, 596 F.2d 293 (8th Cir. 1979), the court, in effect, reiterated its holding in Reynolds, but went on to say: “Petitioner ‘bears a heavy burden of proving unfairness resulting from alleged ineffective assistance of counsel.’ Johnson v. United States, 506 F.2d 640, 645 (8th Cir. 1974); see United States v. Kelton, 518 F.2d 531, 534 (8th Cir. 1975). ‘In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and that he was prejudiced thereby.’ United States v. Hood, 593 F.2d 293 (8th Cir.1979); Benson v. United States, 552 F.2d 223, 224 (8th Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977).”

We recognize that the fixing of a standard by which effectiveness of counsel can be measured has been very difficult. In Garton v. Swenson, D.C., 417 F.Supp. 697 (1976), John W. Oliver, J., demonstrated the difficulty encountered within the Eighth Circuit. In Missouri, we have had a similar experience. In State v. Schaffer, 454 S.W.2d 60, 65 (Mo.1970), the standard used to measure the effectiveness of counsel was “whether his actions or lack thereof made the trial a farce or a mockery of justice.” In Smith v. State, 473 S.W.2d 719, 722 (Mo.1971), the standard used was whether “ ‘circumstances . . . demonstrate that which amounts to a lawyer’s deliberate abdication of his ethical duty to his client.’ ” And, in Sims v. State, supra, the standard used was whether the accused “was denied a fair trial.”

It is not at all desirable that there be one standard applied in the state courts when adjudicating questions of effectiveness of counsel under our postconviction relief proceedings as provided for in rule 27.26 and a different standard applied when the same prisoner appears in a federal court within the Eighth Circuit seeking habeas corpus relief for allegedly ineffectiveness of counsel in his state court criminal trial. It is much more conducive to an orderly administration of justice and predictable results if both jurisdictions, federal and states within the Eighth Circuit, utilize the same criteria and concepts when adjudicating the same question with reference to the same prisoner. It is arguable as to whether or not there is as much difference in the application of our “fair trial” rule as compared with the standards enunciated in Reynolds v. Mabry, supra, and in Witham v. Mabry, supra. The latter requires first that there be a finding that the conduct of the attorney does not measure up to the standard prescribed in Reynolds and, if there is such a finding, that the defendant was prejudiced thereby. If he was, he did not have a fair trial. Regardless, we believe it is of substantial importance that the trial and appellate courts of this state and the trial and appellate courts in the federal system of the Eighth Circuit be applying the same standard and in the same way. To this end the court adopts the holdings of Reynolds v. Mabry, supra, and Witham v. Mabry, supra, with reference to the standard and the manner of its application for determining the question of whether a defendant is entitled to a new trial because of ineffective assistance of counsel.

The new test adopted in this opinion is prospective only in its application, being applicable to this case and to other 27.26 hearings held subsequent to the publication of this opinion; to wit, April 25, 1979.

The judgment of the circuit court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

MORGAN, C. J., RENDLEN and SI-MEONE, JJ., and FINCH, Senior Judge, concur.

SEILER, J., concurs in part and dissents in part in separate opinion filed.

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

WELLIVER, J., not participating because not a member of the court when cause was submitted.

SEILER, Judge,

concurring in part and dissenting in part.

I agree we should require from trial counsel that degree of performance which conforms to the care and skill of a reasonably competent lawyer rendering similar services under the same or similar circumstances. I agree further that the present case should be reversed and remanded for an evidentiary hearing at which the standard will be applied.

However, in the event counsel’s performance is found below the standard, then I believe the judgment of conviction should be set aside. We should not adopt this new standard on the one hand and on the other promptly dilute, weaken, or undercut it by requiring that in spite of counsel’s failure to provide assistance measuring up to the standard there must be something else shown before we will give relief.

That the conviction should be set aside when there has been inadequate assistance of counsel follows from several fundamental principles, in my opinion. These are, first, the constitutional right to assistance of counsel under the Sixth Amendment, Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and under art. I, § 18(a) of the Missouri Constitution; second, the presumption of innocence; third, the requirement that the state prove the defendant guilty beyond a reasonable doubt; and fourth, the adversary system. Without assistance of counsel, these guaranteed and individual rights are meaningless, because as Justice Walter V. Schaefer so accurately pointed out while on the Supreme Court of Illinois, “[o]f all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.” Schaefer, Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 8 (1956). “[TJrial errors may be especially significant since it takes so little to establish the requisite doubt that might convince a jury to acquit” and “the very essence of American criminal law is proof beyond a reasonable doubt.” Saltzburg, The Harm of Harmless Error, 59 Va.L.Rev. 988, 1004, 1032 (1973).

“The constitutional guarantee of ‘effective assistance’ of counsel is a guarantee with a purpose. That purpose is not, as some people seem to believe, to ‘shift the balance’ against the ‘peace forces’ in favor of the ‘criminal element.’ It is to assure that our adversary system of justice really is adversary and really does justice.” Ba-zelon, The Defective Assistance of Counsel, 42 Univ. of Cin.L.Rev. 1, 2 (1973).

When ineffective assistance does occur, the defendant should be given a new trial. Defendant should not also have to show the trial was not “fair” (a highly subjective and vague requirement which begs the question, as it assumes a trial can be “fair” without adequate assistance of counsel) or that in addition to being deprived of his constitutional right to assistance of counsel, he was “prejudiced” (which again begs the question, as it assumes deprivation of a constitutional right is not prejudicial).

In Hall v. State, 496 S.W.2d 300 (Mo.App.1973), with all eight judges of the St. Louis district concurring, the court of appeals granted defendant relief for the reason that counsel failed to meet the minimum level of representation required and thus denied defendant his rights under the Sixth Amendment. Counsel, instead of investigating defendant’s account that he shot decedent in self-defense and was not guilty of the charge of second degree murder, concentrated exclusively on plea bargaining, which culminated in a plea of guilty and a sentence of 18 years. The court held the record was devoid of adequate assistance of counsel. The court required no inquiry as to whether investigation would substantiate the claimed defense. Inadequacy of counsel alone warranted setting aside the plea and sentence and remand for further proceedings. I believe the court of appeals handled the matter correctly and that we should make the same disposition if it is determined that there has been ineffective assistance of counsel here.

Likewise, in Rodgers v. State, 567 S.W.2d 634 (Mo. banc 1978) a majority of the court believed that a pro se petition under 27.26 stated sufficient grounds to warrant appointment of counsel (something which could not be done under the law as it stood at that time unless the petition stated a valid claim) where petitioner’s claim of ineffective assistance of counsel was that defense counsel did not see him until the day of trial. The majority of the court did not inquire whether defendant was prejudiced thereby, despite the fact that the evidence in the original trial, State v. Rodgers, 525 S.W.2d 447 (Mo.App.1975), was that defendant was caught red-handed and there was no defense to be made. Ineffective assistance of counsel was per se sufficient to state a valid claim.

If, however, the court will not hold in today’s decision that ineffective assistance of counsel, without more, entitles defendant to a new trial, then I believe that the court should at least adopt Judge Donnelly’s view expressed in his dissenting opinion that where there has been ineffective assistance of counsel automatic reversal must follow unless the reviewing court is able to declare a belief that the error was “harmless beyond a reasonable doubt” and that the burden of showing lack of prejudice, beyond a reasonable doubt, is on the state.

The two federal decisions referred to by the principal opinion, Reynolds v. Mabry, 574 F.2d 978 (8th Cir. 1978) and Witham v. Mabry, 596 F.2d 293 (8th Cir. 1979), speak about the petitioner having a “heavy burden” to prove unfairness resulted from ineffective assistance of counsel, and that there is a “presumption” that counsel is competent and that petitioner is under a “heavy burden” to override this presumption. However, our courts should be aware in considering this “presumption” that it exists only “until a showing to the contrary has been made.” United States v. Kelton, 518 F.2d 531, 533-34 (8th Cir. 1975); Crowe v. South Dakota, 484 F.2d 1359, 1361 (8th Cir. 1973); Kilgore v. United States, 323 F.2d 369, 373 (8th Cir. 1963). Once a petitioner makes a showing of ineffective assistance, the presumption, of course, drops out of the case.

Furthermore, as to “heavy burden” (whatever this means), it does not in any way change the burden of proof in a 27.26 case, which is stated by our rule itself, rule 27.26(f), as follows: “The prisoner has the burden of establishing his grounds for relief by a preponderance of evidence.” The burden of proof is not any different for a movant in an ineffective assistance of counsel claim than it is in any other type of 27.26 claim.

DONNELLY, Judge,

dissenting.

For many years the members of the federal judiciary have been given carte blanche to govern the American people. Many have responded with enthusiasm. They have injected federal control into almost every facet of the lives and thinking of our citizens. Although bound, by oath or affirmation (Article VI), to support all of the Constitution of the United States, they have virtually excised the Tenth Original Amendment. Their arrogations are a matter of record. See Eaoul Berger, Government by Judiciary (Cambridge: Harvard University Press, 1977). They have refused to recognize the ultimate question: shall judges be restricted to the exercise of those powers which derive “from the consent of the governed”? The Declaration of Independence (1776).

However, no good purpose can now be served by considering what might have been. As has been eloquently said in different context, “it may be a quixotic tilt at windmills which belittles great principles of liberty. Only time can tell.” Kunz v. New York, 340 U.S. 290, 295, 71 S.Ct. 312, 315, 95 L.Ed. 280 (1950) (Jackson, J., dissenting).

I cheerfully acknowledge that I am bound by the “supreme law of the land,” as declared by the United States Supreme Court. (Art. VI, Constitution of the United States). I must also acknowledge, and reaffirm, that since 1966 the lower courts of the Federal judicial system have played an authoritative role in cases involving violations of the criminal laws of Missouri. State v. Brizendine, 445 S.W.2d 827 (Mo. banc 1969).

It is a fact that the United States Court of Appeals for the Eighth Circuit has encountered difficulty in fixing a standard by which effectiveness of counsel can be measured. See Garton v. Swenson, D.C., 417 F.Supp. 697 (1976). But that fact is of no moment. The problem has vexed all courts since Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Of importance is that the practicalities of our situation require that we ascertain and follow, if possible, the current standard articulated by the United States Court of Appeals for the Eighth Circuit. Unfortunately, this is more easily said than done.

In Reynolds v. Mabry, 574 F.2d 978, 979 (8th Cir. 1978), the Court said:

“The accepted standard for effectiveness of trial counsel is now established as that degree of performance which conforms to the care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances.”

In U. S. v. Hood, 593 F.2d 293 (8th Cir. 1979), the Court said:

“In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and that he was prejudiced thereby.” (Emphasis mine.)

I encounter no difficulty in adopting the standard for effectiveness of counsel “as that degree of performance which conforms to the care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances.” My problem is with the apparent requirement of a showing of prejudice. In my opinion, the teaching of Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), is that if effective assistance of counsel has been denied an accused, it will be presumed that the accused was denied a fair trial and his judgment of conviction will be set aside. If Holloway is, in fact, limited to conflict of interest situations (Reynolds, supra, 574 F.2d l.c. 981), then the teachings of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) must apply. If Chapman applies, we would be compelled to hold that a failure of counsel to meet the “reasonably competent lawyer” standard would constitute federal constitutional error and that such error would compel an automatic reversal unless the reviewing court were able to declare a belief that the error was “harmless beyond a reasonable doubt.” (Chapman, supra, 386 U.S. l.c. 24, 87 S.Ct. 824). In my opinion, Hood, supra, erroneously places the burden of showing prejudice on the accused. Chapman, supra, places the burden of showing lack of prejudice, beyond a reasonable doubt, on the State.

I must conclude that the Eighth Circuit analysis is flawed.

I respectfully dissent.

      . “The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). It is not a prerequisite to entitlement to effective assistance of counsel that defendant be innocent or that there not be a strong case against him or that the issue of guilt or innocence be a close one.

      . It is poignant when a jurist, in the name of the great Cardozo, boasts of federal judges routinely engaging in “bureaucratic and administrative functions, such as overseeing [state] schools, [state] mental hospitals, and [state] prisons.” See Kaufman, Chilling Judicial Independence, 88 Yale Law Journal 681, 686, 687 (1979); Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921).


author: RENDLEN, Judge. FINCH, Senior Judge,

text:
    Ethel A. HENDRIX and Clell J. Hendrix, Plaintiffs-Appellants, v. Ralph Harry JONES, Defendant, and Farmers Insurance Company, Garnishee-Respondent.
    No. 60773.
    Supreme Court of Missouri, En Banc.
    May 17, 1979.

      H. George Lafferty, Jr., Lafferty, Horowitz & Shurin, a Professional Corp., Kansas City, for plaintiffs-appellants.
    Richard H. Heilbron, Heilbron & Powell, Kansas City, for garnishee-respondent.
   RENDLEN, Judge.

This is an appeal from a garnishment proceeding in which plaintiffs sought to recover amounts due on their $50,700 judgment for personal injuries and loss of consortium resulting from an automobile collision with Ralph Jones. In the garnishment action against Farmers Insurance Company (Farmers), Jones’ liability carrier, the trial court found for garnishee and following reversal on appeal the cause was transferred from the Western District of the Court of Appeals that we might reexamine the existing law. The question: Does the unexcused absence of defendant-insured from the trial of plaintiffs’ claims against him constitute a breach of the cooperation clause of his automobile liability insurance policy so as to relieve the insurer from its obligation thereunder, absent a showing of prejudice?

On August 28, 1973, Ethel Hendrix, driving her automobile southbound on U.S. Highway 71 in Bates County, Missouri, was struck from the rear by the car of Ralph Harry Jones, who was speeding and intoxicated at the time. The Hendrixes filed suit against Jones in October, 1973, and when the case came for trial on Monday, April 28, 1975, defense counsel retained by the insurer requested a continuance on defendant’s failure to appear. In support of that request counsel recited the following conduct of defendant in breach of the insurance contract’s cooperation clause: Defendant had been sent a letter in early April, 1975, stating it is “essential that you be present during the entire course of the trial.” On Friday, April 25, 1975, counsel twice called the insured by telephone to notify him of the date, time, and place of trial and to request his attendance. In the first conversation, defendant stated that he did not know whether he could come to trial because his wife was in the hospital suffering from cancer. A second call was made and the woman who answered responded affirmatively when addressed as Mrs. Jones; but when defendant came on the phone, he claimed she was his sister. Further, he made no claim of his inability to attend trial but stated that even if he came to trial he would not testify. In this conversation counsel warned that failure to cooperate could result in forfeiture of coverage and finally suggested that defendant consult a local attorney and see what his rights were. In defendant's deposition taken subsequent to the trial he acknowledged having been informed at some time that if he failed to appear at trial he was “apt” to lose his coverage under the policy. In the colloquy following this recital, defense counsel stated that he intended to admit liability, defending only on damages and conceded that defendant’s presence could not assist the defense on liability or intoxication. This admission came in contemplation of the state trooper’s prospective testimony (as outlined by plaintiffs’ counsel) that defendant had been speeding over one hundred miles an hour and that his blood alcohol content measured .33 when arrested, which coupled with his inability to function indicated he was “absolutely as intoxicated as this state trooper has ever seen a man to be.” Nevertheless defense counsel maintained that defendant’s presence was required to enable counsel to afford a defense, to consult on trial developments and to show the jury that defendant was personally committed to a favorable outcome of the trial.

On the court’s denial of the request for continuance, defense counsel, while maintaining that defendant had breached the cooperation clause in the insurance agreement, stated, “[I]t is not my intention to withdraw at this stage, and deny coverage to him, but rather to stay in the case and defend it.” He asserted this “should not be construed as any admission on my part that the policy has not been breached,” but was solely to avoid a default judgment. Prior to trial, insurer had offered plaintiffs the sum of $10,000 in settlement of their claims against defendant; after two days of trial, insurer, by and through its attorney, offered plaintiffs $17,500 in settlement. Plaintiffs’ counsel during closing argument four times stressed the fact that defendant was absent and “obviously” had no concern for the outcome of the trial, that it was “no problem to him.”

The jury awarded damages of $47,500 to Ethel for her injuries and $3,200 to Clell Hendrix for loss of consortium. Following this unfavorable result, counsel for the insurer sent a letter to the insured on May 2, 1975, stating in part: “Your failure to appear constituted a breach of the cooperation clause to your policy and it is the position of the Farmers Insurance Company, Inc., that your insurance policy, therefore, affords you no coverage for the judgment recited above.” The letter also stated that a motion for new trial would be filed on defendant’s behalf. The motion for new trial, charging passion and prejudice on the part of the jury and error in the court’s refusal of the requested continuance, was overruled on June 16, 1975, and no appeal was taken from that ruling.

Plaintiffs brought this suit and on August 4, 1975, filed their interrogatories to garnishee, Farmers Insurance Company, which by its answers denied any debt or obligation to indemnify defendant or satisfy any liability arising from the accident. At the garnishment hearing in October of that year, the policy defense of noncooperation was asserted by garnishee. The trial court entered its judgment finding that defendant Jones breached his contract of insurance by his unexcused absence from trial, that garnishee neither waived its right to rely on such breach nor became estopped to assert the same, and that garnishee was relieved of liability for the casualty of August 28, 1973.

There is no question that defendant’s insurance policy contained a typical cooperation clause requiring him to attend the trial when, as here, he was requested so to do, and that defendant failed to appear. Further it is clear that such policy provisions are valid and enforceable in Missouri. Quisenberry v. Kartsonis, 297 S.W.2d 450 (Mo.1956); Taff v. Hardwick, 419 S.W.2d 482 (Mo.App.1967); Lenhart v. Rich, 384 S.W.2d 812 (Mo.App.1964). After a material breach has been proved, unless the insurer has waived its right to assert the defense of material breach or is estopped from asserting it, the insurer may deny liability coverage to the insured under the terms of the policy. This case does not deal with questions of the insurer’s reasonable diligence in attempting to contact its insured or with the absence of an insured from trial with valid excuse. The record reflects Farmers exercised such diligence in notifying its insured of the trial and the insured’s absence went unexcused. Accordingly we examine only whether the insurer need prove prejudice to establish a material breach of the cooperation clause sufficient to release the company from liability under the policy.

In 1934, the Missouri Court of Appeals adopted what has been characterized as a per se rule of material breach for the insured’s unexcused absence from trial in Bauman v. Western & Southern Indemnity Co., 230 Mo.App. 835, 77 S.W.2d 496 (1934). There the insured was owner of a bus being driven (with permission) by his employee at the time of the accident. The insured was not present at the accident scene and, as the Court of Appeals stated, his first-hand knowledge of the case went only to the question of the vehicle’s ownership which stood admitted by defense counsel. The St. Louis Court of Appeals nevertheless held that the insured’s unexcused failure to attend trial constituted a material breach of the cooperation clause. The court noted that in a garnishment action the injured party has only the rights of the insured and “the insurance company may assert any defense against the injured person which it might have asserted as a defense in an action brought against it by its assured.” 77 S.W.2d at 498. In other words, the injured party is subrogated to the rights of the insured. On this point there continues to be agreement in Missouri and other jurisdictions. See, e. g., Meyers v. Smith, 375 S.W.2d 9, 15 (Mo.1964). The Bauman court, however, in rejecting plaintiff’s argument that because the insured could not contribute testimony which would add to the defense there was no material breach of the policy, stated: “Any number of incidents might be mentioned to show the unquestionable importance to the appellant of having Baird [the owner-insured] himself in court for quick and ready conference to meet emergencies arising during the trial. . His mere presence as defendant at the trial would have been sufficient to show that he had faith in the defense being made in his name and in his behalf, whereas his absence might, and probably would have, led the jury to infer his lack of faith in, or lack of sympathy with such defense.” 77 S.W.2d at 502. Noting the language of the cooperation clause, the court then concluded that “it is not within the power . of the court, to say that Baird’s [the insured’s] absence from the court at the trial was immaterial.” 77 S.W.2d at 503. This was tantamount to the adoption of a per se rule that the insured’s unexcused failure to attend trial in and of itself constitutes a material breach of the cooperation clause.

In a later case under similar facts the Court of Appeals in Fischer v. Western & Southern Indemnity Co., 106 S.W.2d 490 (Mo.App.1937), followed the Bauman reasoning and permitted the insurer a complete defense in the ensuing garnishment proceeding. Others have also approved the per se rule under facts where the insured arguably could have added material evidence at trial. See Taff v. Hardwick, 419 S.W.2d 482, 485 (Mo.App.1967); Lenhart v. Rich, 384 S.W.2d 812 (Mo.App.1964). For the reasons hereinafter discussed, to the extent that Bauman and other cases like it so hold, they should no longer be followed.

“In determining whether the failure of an insured to attend the trial or to testify was prejudicial to the insurer, * * * the courts have generally considered the importance of the insured’s testimony to the defense.” Annot., 60 A.L.R.2d 1157 (1958). Bauman is factually similar to the case at bar in that the only matters to which the insured Jones could have testified — his liability and intoxication at the accident scene — were admitted by stipulation; thus, in each case the insured’s absence did not deprive the insurer of testimony necessary for the defense.

The time has come to reject the legal presumption raised in Bauman and subsequent cases. Admittedly, the conspicuous and unexplained absence of the defendant at trial might prejudice a jury and that prejudice might be aggravated by opposing counsel’s argument to the jury. But presuming such prejudice as a matter of law rests on speculation and conjecture. One might with equal justification, as did plaintiffs’ counsel at bar in the pretrial bench conference, claim that the defendant’s presence at trial could prove far more devastating to the defense than his absence. Defendant could have been called to the stand to testify to his high rate of speed at the time of the accident (or his lack of memory thereof), as that factor bore on the damage issue. Additional testimony might have been adduced concerning defendant’s intoxicated condition in order to apprise the jury of all circumstances surrounding defendant’s excessive speed. In short, as the Bau-man opinion itself noted, “Many things occur during the course of the trial of a contested damage suit which no one can foresee prior thereto.” 77 S.W.2d at 501-02.

We can no longer justly adhere to the per se rule of Bauman which necessarily rests on speculation rather than facts. Nor does it seem proper to adopt a principle embodying a rebuttable presumption of prejudice from the insured’s unexcused failure to attend the trial. The trend is otherwise. Many jurisdictions have abandoned such a rebuttable presumption, Campbell v. Allstate Ins. Co., 60 Cal.2d 303, 32 Cal.Rptr. 827, 384 P.2d 155 (1963); MFA Mut. Ins. Co. v. Cheek, 66 Ill.2d 492, 6 Ill.Dec. 862, 363 N.E.2d 809 (1977); Brakeman v. Potomac Ins. Co., 472 Pa. 66, 371 A.2d 193 (1977); Oregon Automobile Ins. Co. v. Salzberg, 85 Wash.2d 372, 535 P.2d 816 (1975), while others, without the necessity of abandoning or overruling prior case law, have imposed the burden of proving prejudice on the insurer. Lindus v. Northern Ins. Co. of New York, 103 Ariz. 160, 438 P.2d 311 (1968); Farley v. Farmers Ins. Exch., 91 Idaho 37, 415 P.2d 680 (1966); Rampy v. State Farm Mut. Automobile Ins. Co., 278 So.2d 428 (Miss.1973); MFA Mut. Ins. Co. v. Sailors, 180 Neb. 201, 141 N.W.2d 846 (1966); Johnson v. Doughty, 236 Or. 78, 385 P.2d 760 (1963).

In Campbell, the California Supreme Court reasoned from the premise that “presumptions should not be created judicially unless there are compelling reasons for doing so,” 60 Cal.2d at 307, 32 Cal.Rptr. at 829, and concluded that a presumption in favor of the insurer on the issue of prejudice would “not be in keeping with the public policy ... to provide compensation for those negligently injured in automobile accidents through no fault of their own.” Id. In response to the contention that an insurer will have difficulty proving prejudice, the court stated, “Although it may be difficult for the insurer to prove prejudice in some situations, it ordinarily would be at least as difficult for the injured person to prove a lack of prejudice, which involves proof of a negative.” Id.

We find the California court’s analysis persuasive. A presumption favoring the insurer on this question could unfairly deprive innocent injured persons of the benefit of a valid judgment and provide the insurer an undeserved windfall. In this case, the Hendrixes as third parties had no connection with Jones until the accident he caused. Although it was not Farmers’ fault that its insured failed to attend trial, neither was it the fault of the plaintiffs who had absolutely no connection with nor control over his conduct. Because Jones apparently cannot satisfy the judgment, either Farmers or the Hendrixes must bear the loss. In such circumstances, no presumption should be afforded either party.

The particular facts of this case make a remand to the trial court on the issue of prejudice unnecessary. Respondent has argued two grounds of prejudice. First, it claims the absence of its insured from trial affected the jury’s verdict. We have previously considered that argument and as pointed out above it represents mere speculation which under the peculiar facts of this case cannot be proved by respondent. Second, respondent claims prejudice in matters of trial strategy from not having defendant available for consultation. The only particular strategic decisions to which respondent points are the admissions of liability and intoxication made before trial. In view of that position it cannot be said that respondent could prove prejudice from not having the chance to inquire of defendant whether to make the admissions.

Because of our resolution of the main issue of this case we need not consider plaintiffs’ contentions as to waiver and es-toppel. The judgment of the circuit court of Jackson County is reversed and the cause remanded with instructions to enter judgment for plaintiffs-garnishers.

MORGAN, C. J., BARDGETT and SI-MEONE, JJ., and STOCKARD, Special Judge, concur.

FINCH, Senior Judge, dissents in separate dissenting opinion filed.

SEILER, J., dissents and concurs in separate dissenting opinion of FINCH, Senior Judge.

DONNELLY, J., not sitting.

WELLIYER, J., not participating because not a member of the Court when cause was submitted.

FINCH, Senior Judge,

dissenting.

I respectfully dissent.

The principal opinion recognizes that the automobile insurance policy issued by Farmers Insurance Company to defendant Jones contained a typical cooperation clause which required, among other things, that Jones should cooperate with Farmers and at its request attend hearings and trials in connection with claims as to which there was coverage. The opinion concedes that Farmers exercised diligence in notifying Jones of the trial setting and in requesting him to be present for the trial; also that the failure of Jones to attend was unexcused and constituted a material breach of the cooperation clause of the policy. It next recognizes that under Missouri cases which it cites “it is clear that such a policy provisions are valid and enforceable in Missouri” and that after a material breach by the insured the insurer may deny liability coverage to insured unless it has waived that right or for some reason is estopped from asserting denial of coverage.

Having so stated, the principal opinion then proceeds to reverse the judgment of the trial court and to direct entry of judgment against Farmers as garnishee. It does so on the basis that under the facts of this case there was no prejudice to Farmers as a result of Jones’ failure to attend the trial. It holds that even though a material breach of the cooperation clause occurs, the insurer is not relieved from liability in a garnishment proceeding unless the insurer affirmatively establishes prejudice.

I cannot join in the decision made by the principal opinion. In the first place, I do not agree that insurer must affirmatively show that prejudice to it resulted from a material breach of the cooperation clause by the insured.

Certainly it would not be obligated to so show if Jones as the insured were seeking to enforce coverage after he had committed what is conceded to have been a material breach of the policy. This is basic contract law. When one party to a contract materially breaches it the other may sue for the breach or may be excused from performance. Consistent with the rule, under various Missouri cases including Bauman v. Western & Southern Indemnity Co., 230 Mo.App. 835, 77 S.W.2d 496 (1934) and Taff v. Hardwick, 419 S.W.2d 482 (Mo.App.1964), the breach by Jones in failing to attend the trial excused Farmers from its obligation under the policy to provide coverage to Jones. If that premise is accepted, as I submit it must be, it follows that Farmers would not be obligated to provide such coverage for the benefit of plaintiffs because they stand in the shoes of the insured when it comes to collecting a judgment against his insurer. Meyers v. Smith, 375 S.W.2d 9, 15 (Mo.1964).

The principal opinion says that plaintiffs had no responsibility for the failure of Jones to attend the trial and that innocent persons are deprived of the benefit of a valid judgment if the insurer is excused by reason of Jones’ breach of the contract with Farmers. This discussion overlooks the nature of the relationship between the parties. It does not state a valid basis for reaching a different result than we would if Jones were seeking to enforce coverage. We do not have compulsory insurance in Missouri. Hence, there is no statute to create rights in judgment holders such as plaintiffs. Plaintiffs are not parties to the contract of insurance between Jones and Farmers and are not third party beneficiaries of such contract. Under Meyers v. Smith, supra, as the principal opinion recognizes, plaintiffs stand in the shoes of Jones as the insured and are subrogated to his rights. If Farmers is excused from liability to Jones for coverage as a result of his material breach of the contract, then plaintiffs have no greater rights and Farmers is not liable to them as garnishee. This necessarily means that Farmers does not have to establish that prejudice resulted before it can rely upon the material breach of the policy provisions by Jones.

Secondly, even if a rule requiring proof of prejudice by the insurer is established, the record in this case does not justify the conclusion in the principal opinion that Farmers was not prejudiced by the failure of Jones to attend trial. Instead, it shows that Farmers was prejudiced. When this case was called for trial, the attorney hired by Farmers to defend the case against Jones asked the court to continue the case because of the failure of Jones to attend. In arguing for a continuance, counsel stated:

“In the first place, it has been my experience that if the jury sees that the defendant isn’t interested enough in his own lawsuit to even come to the court and hear the case that they are not going to pay much attention to the defendants side of the case, and they are not going to have any feeling that he is entitled even to a fair trial when he doesn’t appear.”

That request was denied and the trial was held. As a result the attorney tried the case with a vacant chair behind him instead of a live defendant. When this case was argued to the jury the attorney for plaintiffs took advantage of Jones’ absence by saying to the jury:

“This is a case where the defendant, Mr. Jones, of Sedalia, who wasn’t even interested enough to show up for the case, ran into the rear end of the plaintiff * * * (emphasis supplied).

Later, plaintiff’s counsel argued:

“Now, this business about, ‘You can’t believe all the rest of her testimony because of Mrs. Hilbum’, that’s another smoke signal, that’s another attempt to get around the fact that his driver, who didn’t even have the decency to show up in this case * * *” (emphasis supplied).

Still later, plaintiff’s counsel argued:

“The judgment, if any, is not directed toward Mr. Heilbron, its directed toward Mr. Jones, of Sedalia, who really isn’t concerned about this case. It’s obvious, so don’t worry about that.” (emphasis supplied).

Finally, counsel argued:

“I want you to use your common sense, and I want you to realize Mr. Jones is not here and doesn’t care about this. He is not concerned about it. It’s no problem to him.” (emphasis supplied).

Obviously, counsel for plaintiffs considered that the absence of Jones and his apparent insensitivity and lack of concern— his lack of “decency” as counsel characterized it — was significant and something that would make an impression on the jury and affect their verdict. Otherwise, he would not have kept repeating this theme. To say that such argument, made possible only by the failure of Jones to attend the trial, was not prejudicial in the defense of the case is not realistic, in my judgment. I believe that anyone who has tried jury cases knows the impact of use and repetition of a theme such as that employed by counsel in this case. It is devastating. Without question, it was prejudicial. It was injected by the very parties who now seek to enforce against Farmers the judgment entered following such telling argument. If Jones had been present, the attorney for plaintiffs could not have argued that defendant wasn’t interested or concerned, or that he didn’t even have the decency to show up at the trial.

In addition, the absence of defendant Jones deprived counsel of the opportunity to confer with him in the process of selecting jurors as well as questions of trial strategy during the trial. The fact that Jones likely would not have testified and that if he had testified, his testimony might have been detrimental, as the principal opinion concludes, does not in any way eliminate the prejudice in other respects resulting from defendant’s absence.

For all of these reasons, I dissent.

      . Counsel also pointed to defendant’s possible liability beyond the policy limits and worried that defendant’s rights could be prejudiced in his absence. Plaintiff promptly amended the petition to ask relief within the policy limits,

      . The cooperation clause of the liability policy stated as follows: “The insured shall cooperate with the Company and, upon the Company’s request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of any legal proceedings in connection with the subject matter of this insurance. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such emergency medical and surgical relief to others as shall be imperative at the time of occurrence.”

      . Although policy considerations dictate that the insurer be required to establish substantial prejudice without benefit of presumption, we do not imply that the innocent injured party is a third party beneficiary who would be entitled to bring a direct action against the insurer in the initial suit to determine negligence of the insured. A few jurisdictions, either through statutory interpretation or case law, have granted the innocent third party a right of direct action against the insurer. West v. Monroe Bakery, 217 La. 189, 46 So.2d 122 (1950); Shingleton v. Bussey, 223 So.2d 713 (Fla.1969). We reject this position, and hold only that in showing a material breach the insurer will also be required to prove substantial prejudice to avoid liability under the policy.

      . Respondent concedes it would be improper to seek evidence from the trial jurors on whether they took defendant’s absence into consideration in their deliberations.

      . Plaintiffs also asserted waiver and estoppel as grounds for reversal but, in view of the conclusion reached, the principal opinion does not reach the issues of waiver or estoppel and does not base its conclusions thereon. Hence I do not consider those issues in this dissent.