text:
    UNION ELECTRIC COMPANY et al., Plaintiffs-Respondents, v. COLLECTOR OF REVENUE OF ST. FRANCOIS COUNTY, Defendant, and Farmington School District R-7 et al., Intervenors-Appellants.
    No. 60161.
    Supreme Court of Missouri, En Banc.
    March 13, 1978.

      Geoffrey L. Pratte, Roberts & Pratte, Farmington, Hugh C. Roberts, Jr., Farm-ington, for intervenors-appellants.
    Francis Duda, William H. Ferrell, Schlafly, Griesedieck, Ferrell & Toft, George Murray, St. Louis, Walter S. Drusch, Jr., Cape Girardeau, for plaintiffs-respondents.
   HENLEY, Judge.

This appeal was transferred here by the Court of Appeals, St. Louis district, on the ground it involved the construction of revenue laws of this state. It involves four cases, consolidated for trial and final decision, in each of which the plaintiff sought to recover from the Collector of Revenue of St. Francois county (defendant) a portion of 1973 school taxes paid under protest. The plaintiffs are Union Electric Company, Missouri Pacific Railroad Company, Missouri-Illinois Railroad Company and Southwestern Bell Telephone Company (plaintiffs). Seven school districts and a junior college district intervened as defendants (intervenors-defendants). The consolidated case, submitted on the pleadings and a stipulation of facts, resulted in a judgment in favor of each of the plaintiffs for the amount it sought. We affirm.

There are eleven school districts lying wholly or partially within St. Francois county. Of these, eight are wholly within the county. They will be referred to as the single-county districts. The other three, North County R-l; DeSoto 73; and Sunrise R-9, lie partly within and partly without St. Francois county. They will be referred to as the multi-county districts. Jefferson Junior College District lies in St. Francois, Jefferson and Ste. Genevieve counties. It will be referred to as the college district.

Each of the multi-county districts and the college district used the 1972 assessed value of personal property within their respective districts and estimates of their respective financial requirements to determine the original rate of levy for 1973 taxes. After this rate of levy had been by each district determined, levied and certified to the county clerk of St. Francois county, the 1973 assessed value of personal property in Jefferson county was increased by 14.30% over the 1972 assessed value.

The rate of levy determined by each of the multi-county districts and the college district, based upon the 1972 assessed value of personal property in the whole district, would have produced taxes for each to meet their respective declared needs in the following amounts:

North County R-l $ 586,775
DeSoto 73 614,296
Sunrise R-9 67,939
Total: $1,269,010
College District 1,036,771
Grand Total: $2,305,781

None of the multi-county districts or the college district revised and lowered its original rate of levy after the 1973 increase in assessed value of property in Jefferson county so that, as lowered, it would produce in each district substantially the same amount of taxes as previously estimated would be produced by the original levy.

The taxes the original rate of levy produced for each district, based on the 1973 assessed value is as follows:

North County R-l $ 635,351
DeSoto 73 649,727
Sunrise R-9 73,386
Total: $1,358,464
College District 1,134,669
Grand Total: $2,493,133

The above amounts demonstrate that the original rate of levy, applied to the 1973 assessed value, produced for the three mul-ti-county districts $89,454 more than was estimated to be required to meet their needs and that there was produced for the college district $97,898 more than was estimated to be required to meet its needs.

The evidence is that based on the 1973 assessed value of property within each of the four districts the revised (lower) rate of levy indicated below for each district would have produced for each substantially the same amount of taxes as would have been produced by the original rate of levy.

North County R-l:
1973 Valuation Revised Rate Tax Production $14,439,815 $4.07 $587,700
DeSoto 73:
1973 Valuation Revised Rate Tax Production
$13,152,374 $4.68 $615,531
Sunrise R-9:
1973 Valuation Revised Rate Tax Production $1,497,685 $4.54 $67,994
Jefferson Junior College District:
1973 Valuation Revised Rate Tax Production $226,933,827 $0.46 $1,043,895

The conclusion is inescapable that in view of this evidence each plaintiff is entitled to recover the amount of taxes it paid under protest if these districts were required by law to lower their respective rates of levy to those designated above as revised rates.

The plaintiffs’ suit is based upon the claim that each of the multi-county districts and the college district failed to comply with the requirement of § 137.073. In summary, that section requires that when the assessed value of property has increased by 10% or more over the valuation of the previous year after the rate of levy has been determined, levied and certified to the county clerk, the taxing authority shall revise and lower the rate so that it will produce substantially the same amount of taxes as previously estimated would be produced by the original levy.

This court said in Missouri Pacific Railroad Company v. Kuehle, 482 S.W.2d 505, 509[4] (Mo.1972) that the purpose of § 137.-073 “is obviously to prevent ‘windfalls’ in school taxes to the school districts merely because the assessed valuation of the real [or personal] property in a county increases.” See also Missouri Pacific Railroad Company v. Jones, 544 S.W.2d 541, 546 (Mo.1976).

Intervenors-defendants contend the requirement of § 137.073 that the rate of levy be reduced when the assessed value of property is thereafter increased 10% or more within a county, only a small area of which is within the school district, is not applicable district-wide to a multi-county district; that the statute was intended to require revision in and application of a lower rate of levy only in that county where the increase of 10% or more in value occurred, not in any county in which there was no such increase.

This court decided the basic question this contention presents in Missouri Pacific Railroad Company v. Jones, supra. The court said (544 S.W.2d at 547) “ * * * that § 137.073 requires the school district to take into consideration the increased assessed valuation of all the property within the school district. Specifically, the school district must include in its base the increases in assessed valuation in all of the counties in which the school district lies and not just the county where the increase exceeds 10%. This method will produce the sum of money which the school district has declared that it needs for the ensuing year.” See also St. Louis-Southwestern Railway Company v. Cooper, 496 S.W.2d 836, 840[1] (Mo.1973).

Intervenors-defendants also contend that an increase in the assessed value of property produced by the addition of new property on the tax rolls of the DeSoto district through its annexation of part of another district is not the type of “increase” intended by § 137.073.

In Missouri Pacific Railroad Company v. Campbell, 502 S.W.2d 354, 358[5] (Mo.1973) the court was presented with the question whether an increase of 10% or more in assessed value of property in a county produced by improvements to industrial complexes and construction of new residences and business buildings since the original levy had been made and certified was an increase occurring “either by an order of the state tax commission or by other action” within the meaning of § 137.073. We held (l.c. 358), after stating reasons for the conclusion, that “[i]t is our view that the legislature intended that the rate be reduced whenever the assessed valuation is increased by 10 percent or more over the prior year’s valuation, after the school districts have estimated their needs and fixed the rate of levy. The manner in which the increase occurs would seem immaterial in effectuating the legislative intent." (emphasis added). The increase in assessed value of the DeSoto district effected by annexation after the original levy had been made and certified was an increase “by other action” within the meaning of the statute.

The judgment is affirmed.

All concur.

      .The intervenors-defendants are: Farmington School District R-7; North County School District R-l; Central School District R-3; Lead-wood School District R-4; Bismark School District R-5; Fredericktown School District R-l; Potosí School District R-3; and Jefferson Junior College District.

      . Farmington R-7; Central R-3; Leadwood R-4; Bismark R-5; Fredericktown R-l; Potosi R-3; Knob Lick C-l; and Libertyville C-2.

      . North County R-l (one of the intervenors-de-fendants) and DeSoto 73 lie partly within St. Francois county and Jefferson and Ste. Genevieve counties. Sunrise R-9 lies partly within St. Francois and Jefferson counties.

      . The rate of levy upon the distributable property of plaintiffs for 1973, based upon the 1972 assessed value, was $4.26 per $100.00 valuation. The “distributable property” of public utilities and railroad companies is, in general, their operating properties within each county. The taxes levied upon such properties and paid to a county for school purposes is based upon an average rate. Briefly, the average rate of levy for school purposes is determined by adding together the local rates of the several school districts in the county and dividing that sum by the whole number of school districts levying a tax for school purposes. The taxes produced by this rate of levy and paid to the county is apportioned among its school districts in proportion to their respective enumeration returns. Sections 151.150 and 153.030, RSMo 1969.

      . The eight single-county school districts filed a correct levy.

      . References to sections of the statutes are to RSMo 1969.
      Section 137.073 is as follows:
      “Whenever the assessed valuation of real or personal property within the county has been increased by ten per cent or more over the prior year’s valuation, either by an order of the state tax commission or by other action, and such increase is made after the rate of levy has been determined and levied by the county court, city council, school board, township board or other bodies legally authorized to make levies, and certified to the county clerk, then such taxing authorities shall immediately revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy. Where the taxing authority is a school district it shall only be required hereby to revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy, plus such additional amounts as may be necessary approximately to offset said district’s reduction in the apportionment of state school moneys due to its increased valuation. The lower rate of levy shall then be recertified to the county clerk and extended upon the tax books for the current year. The term ‘rate of levy’ as used herein shall include not only those rates the taxing authorities shall be authorized to levy without a vote, but also those rates which have been or may be authorized by elections for additional or special purposes. No levy for public schools or libraries shall be reduced below a point that would entitle them to participate in state funds.”


source: Caselaw Access Project

author: DOWD, Judge.

license: Public Domain

text:
    Harvey BAKER et al., Plaintiffs-Appellants, v. LAKE LORRAINE, INC., et al., Defendants-Respondents.
    No. 38108.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 17, 1978.

      Albert George Beyer, St. Louis, for plaintiffs-appellants.
    Jeremiah Nixon, Joseph Cunningham, Hillsboro, for defendants-respondents.
   DOWD, Judge.

This is a class action by certain lot owners against the successor grantors of Lake Lorraine subdivision in Jefferson County, Missouri. The plaintiffs alleged in their suit that the defendants had failed to fulfill a fiduciary duty owed to plaintiffs and to account to them for moneys collected as assessments. The trial court found against plaintiffs-appellants and filed detailed Findings of Fact and Conclusions of Law which we found helpful. However, we did not find appellants’ brief helpful in our task of deciding the points raised.

The parties filed a stipulated statement of facts. The stipulation relates that in 1955 William & Elizabeth Kuehnel executed a subdivision plat and a Deed of Restrictions for the proposed Lake Lorraine Subdivision. They began construction and development for the proposed subdivision and installed dirt roads, lakes, and some utilities. The Kuehnels sold lots to buyers, and, in accordance with the Deed of Restrictions, collected yearly assessments from the lot owners which went into a maintenance fund. On May 10,1957 the Kuehnels transferred all the land they owned in Lake Lorraine to Frank Frimel, defendant here. From 1957 to 1961 Frimel was recognized as the grantor by the lot owners and during this period sold lots subject to the 1955 Deed of Restrictions. In 1961, Frimel and his wife formed a corporation, Lake Lorraine, Inc., and transferred their interest in Lake Lorraine Subdivision to the corporate entity. The property owners continued to pay into the assessment fund after the subdivision lots were acquired by Frimel and later Lake Lorraine, Inc. Frimel and Lake Lorraine, Inc., as successor grantors, never paid into the assessment fund for the property which they owned.

In this court tried case, the judgment must be sustained unless it is without substantial evidentiary support, unless it is against the weight of the evidence or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976); State ex rel. Shepherd v. St. Louis County, 542 S.W.2d 55 (Mo.App.1976).

Appellants first contend that the court erred in failing to find a fiduciary relationship between the defendants and the lot owners. Contrary to appellants’ contention, our examination of the trial court’s Conclusions of Law shows that the court did find a fiduciary relationship existed between the defendants and the lot owners. The trial judge’s entire Conclusions of Law are as follows:

“I. The plaintiffs have failed to prove that the defendants did not exercise fairness and good faith in the collection and disbursement of assessment funds at Lake Lorraine.
“II. The plaintiffs have failed to prove that a demand for an accounting was made and that an accounting was in fact not furnished.
“HI. The plaintiffs have failed to prove that the defendants were guilty of bad faith, concealment or intentional wrong in their activities at Lake Lorraine or that their collections or disbursements were not properly made and authorized by law.
“IV. The Deed of Restrictions, when read in context of the entire document, plus all of the facts relating to the subdivision, gives Lake Lorraine, Inc. and its predecessor, Frimel, the right to assess lots held by others, but creates no duty in the grantor to assess or collect assessments from himself.
“V. Plaintiffs have no right, title or interest to the water system belonging to Frimel Water System, Inc. other than the right to purchase water, and pay for same, under the regulations of the Missouri Public Service Commission.
“VI. This Court makes no finding concerning the statute of limitations, and its application here, since same is not necessary in order for the Court to reach its conclusion and order.
“VII. No finding was made concerning the failure to state a cause of action or other defect in plaintiffs’ pleadings since the other findings of fact and conclusions of law disposed of all issues in this action.”

It is clear that the defendants occupied a fiduciary capacity regarding the maintenance fund and the trial court so found. Young v. Lucas Construction Co., 454 S.W.2d 638, 641 (Mo.App.1970).

Next appellants contend that the Court erred “in that it failed to recognize the real property interests of the plaintiff lot owners in the roads, lakes and parkways of Plat One . . . and thus erred in its finding that plaintiffs’ interests were not violated by defendants.” We find nowhere in the record that the court in any way divested appellants of their interest in the roads, lakes and parkways.

The next point raised is that the court “erred in failing to hold that the use of the assessment funds and the common property were limited to the purposes of upkeep and maintenance of plat 1.” Appellants also argue that the water system was the common property of the lot owners.

In the trial court’s Findings of Fact, it is stated:

. . [Tjhere was no evidence that the defendant took any of the assessment money for his own use, and if anything, the management of the assessment fund was at a financial loss to defendants; that the defendants have not failed or refused to account to the lot owners regarding the funds and expenditures of the assessment fund, nor has he misappropriated or diverted assets from same; that the plaintiffs have not proven that defendant failed to exercise fairness and good faith in handling the assessment funds; nor did they attempt to conceal, cover up or hide any act in the handling of the funds.
“At the time the development was purchased by Mr. Frimel, there was no water system existing. There was no showing that any money expended for the development or construction of the water system came from the assessment fund or from any funds received from the lot owners; Frimel Water System, Inc., a separate corporation, owns the water system, which is certificated by the Public Service Commission, which recognized such ownership and no claim of ownership or rights in the system had ever been asserted by any other individuals prior to the plaintiffs amending their petition here in April of 1974, some years after the case was filed, even though the water system was constructed many years ago. Frimel Water System, Inc. was not named as a party to this action.”

It is clear that the trial court found that the assessment fund was limited to the purpose of upkeep and maintenance of Plat 1 and that the water system was not the common property of the lot owners. The Court also found that the grantors diverted no assessment funds to their own use. These findings are supported by substantial evidence. Murphy v. Carron, supra.

Our examination of the record shows that the only money from the assessment fund spent outside Plat 1 was for a beach, constructed at the request of the lot owners, a road leading to it, and another road which is the only entrance to Lake Lorraine from a public highway. The beach and roads benefited all lot owners. Appellants’ point is without merit.

Appellants’ next point reads: “The court erred by assuming facts in its findings that were contrary to those contained in the statements and documents of the stipulated statement of facts and so erroneously determined that the amendments to the Deed of Restrictions were validly made.” The point as stated is an abstract, conclusionary statement which fails to state what facts in the court’s findings are contrary to the stipulation and thus does not relate wherein and why the court allegedly erred in any respect. The point is in violation of Rule 84.04(d) and preserves nothing for appellate review. Long v. Lincoln, 528 S.W.2d 512, 513[2] (Mo.App.1975).

Appellants claim that the trial court failed to shift the burden of proof to defendants to account to them and maintain complete and accurate records. “The burden of proving the propriety of acts set forth in the account, if they are objected to, should rest on the trustee; but if he makes a prima facie case the burden of producing contradictory evidence is on the objector.” Bogert, The Law of Trusts & Trustees, § 970 at 203 (2d ed. 1962). The learned trial judge concluded that Frimel had made a prima facie case that his accounts were complete and accurate. The judge found that “Mr. Frimel furnished the property owners association, for each year from 1964 through 1972, a financial report showing the receipts of the assessment funds and the expenditures therefrom. Insofar as expenditures are concerned, they showed check numbers, payees, the purpose of said expenditure and its amount.” It is clear that the trial judge found that the defendants made a prima facie case of accounting to the plaintiffs and that the plaintiffs failed to produce contradictory evidence attacking the validity of the accounting. These findings are supported by substantial evidence, and we defer to them. Murphy v. Carron, supra.

Appellants next contend that the court erred in holding that the successor-grantors were not required to assess their own property. The Deed of Restrictions, dated July 8, 1955, which was in effect when Frimel acquired Lake Lorraine, reads in part: “As part of the consideration for the sale of this lot Grantor shall have the right to assess the owner of these lots after January 1, 1957, and each subsequent January 1 thereafter, such sums as Grantor may deem necessary for the upkeep and maintenance of the dam, roads, and other improvements . . . ” Clearly this provision contemplated that the grantors assess lot owners and not themselves as grantors. We agree with the trial judge’s interpretation of this provision of the restrictions.

Appellants contend that the defendants were granted “blanket assessment exemptions” for “time periods” when defendants were not grantors. The record fails to show that the defendants ever owned lots in any capacity other than that as grantors.

Appellants further argue that the court erred “in disregarding the uncontroverted evidence that defendants’ books did not account for substantial assessment income and in its failure to order defendants to account or pay into the fund.” There was no evidence of a failure to account and in fact, as we have held earlier, the trial court’s conclusion that a complete accounting had been given is supported by substantial evidence. The point is without merit.

Appellants’ next point indicates that plaintiffs’ position is that the defendants must have documentary proof that expenditures claimed were within the purposes provided for in the Deed of Restrictions. First, there was substantial evidence to support the trial judge’s conclusion that the $5800 Frimel took from the assessment fund was to repay himself for money he had loaned the assessment fund to enable it to pay bills. Furthermore, we hold that the judge was entitled to believe Frimel’s testimony that the challenged road work done in the subdivision was in the form of repair and maintenance, and not road construction. His testimony was corroborated by the lot owners who were plaintiffs’ witnesses who testified that the road work done was for maintenance only, and that they could not recall that any new roads had been built. In court tried cases we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Rule 73.01(3)(b); Lee v. Rolla Speedway, Inc., 539 S.W.2d 627 (Mo.App.1976). We find no error here.

Appellants’ final point cumulates issues raised in his other points, and we respond by stating that we find no evidence that defendants violated a fiduciary duty, kept inadequate records, or used common property for their own interests.

A number of points ruled in this opinion were based on the fact that the record showed that the judge’s findings were supported by substantial evidence. We found it unnecessary to set forth in detail the evidence pertaining to these points because an extended discussion would have no prec-edential value. Rule 84.16(b).

The judgment is affirmed.

STEWART, P. J., and REINHARD, J., concur.

      . The plaintiffs are lot owners in Plat 1 of Lake Lorraine subdivision.

      . In addition to the stipulation, there was extensive testimony at the trial.

      . The named defendants are Lake Lorraine, Inc., Frank Frimel Realty, Inc., Frank Frimel, individual, and his wife Ellen Frimel. Lake Lorraine, Inc., is almost entirely owned by Frank and Ellen Frimel. For the sake of convenience we will refer to all defendants as “Frank Frimel.”


author: ROBERT R. WELBORN, Special Judge.

text:
    R. P. LODJIC and Betty Lodjic, Plaintiffs-Respondents, v. Joseph G. KETTERLIN and Betty M. Ketterlin, Defendants-Appellants.
    Nos. KCD 28600 and 28601.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.

      Phillips & McElyea Corp., John L. Walker, Jr., Charles E. McElyea, Camdenton, for defendants-appellants.
    Barry, Neff & Gallaher, James L. Barry and Victor Tell Neff, Jefferson City, for plaintiffs-respondents.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Consolidated appeals in actions arising out of real estate transactions between R. P. Lodjic, a builder, and his wife, and Betty M. Ketterlin, a real estate broker, and her husband. Defendants have appealed from portions of final decree favorable to plaintiffs.

The first action filed by Lodjic and his wife against Ketterlin and her husband arose out of a joint venture among the parties for the purchase and development of a 73.34-acre tract in Miller County, known as “Bear Creek Farms.” Title was taken in the names of the Ketterlins. The petition sought an adjudication that plaintiffs were owners of a one-half interest in the property and an accounting for proceeds of sales from the tract made by defendants. Count II of the petition sought judgment for 12,-696.53 for unreimbursed expenditures by plaintiffs in the development of Bear Creek Farms. The defendants denied that plaintiffs had an interest in the real estate and denied that they were obligated to plaintiffs for the amount claimed in Count II.

The matter was tried to the court which found for plaintiffs on both counts on basically the following findings of fact, a major portion of which were stipulated to and none of which are controverted here:

In June or July, 1971, plaintiffs and defendants entered into an oral agreement of joint venture for the purchase and development of a 73.34-acre tract in Miller County, known as “Bear Creek Farms.” The purchase price of the property was $12,500, paid by $5,000 in cash, contributed equally by the parties with the balance borrowed and secured by a deed of trust. Title was taken in the name of the defendants but the parties agreed that the Lodjics and Ketterlins each should own an undivided one-half interest in the property and that each would share equally in the discharge of the obligation secured by the deed of trust. Defendants executed the note and deed of trust. The note was payable in one year.

Within one year of the date of the purchase of the property, defendants sold approximately 60 acres of the property and used the proceeds to pay off the note secured by the deed of trust. The $4,200 balance was divided equally between the parties.

On or about April 20, 1972, defendants sold a two-acre tract on the remainder of the property to Richard Schmidt for approximately $18,000.00. $1,857.50 of the sale price was used to pay closing costs and bills which were potential liens against the house built on the property. Plaintiffs received $1,000 cash out of the proceeds of the sale to Schmidt.

At about the same time as the sale of the two-acre tract, defendants sold the balance of the 73.34-acre tract, or some 11 acres, to Schmidt for $3,500.00. Schmidt gave his note for that amount secured by a deed of trust in payment. Schmidt defaulted in payments on the note and subsequently re-conveyed the tract to defendants in consideration for the cancellation of the $3,500 note.

The court found that plaintiffs were entitled to a conveyance of an undivided one-half interest in the 11 acres remaining unsold and held in defendants’ names and decreed that such title be vested in Lodjic and his wife.

On Count II of the petition, the court found that the parties agreed that plaintiffs should pay the cost of development of the property, to be reimbursed out of the proceeds of the sale of houses built thereon. The court found that the house sold to Schmidt had been built by plaintiffs and defendants; that plaintiffs had expended $15,079.03 in the development of the property and defendants $1,857.50; that of the $18,000 received from the sale to Schmidt, plaintiffs had received $2,235.97. The court held that plaintiffs were entitled to a net money judgment against defendants in the amount of $13,374.79 for the unreimbursed net profits on the sale and unreimbursed expenditures by plaintiffs on the property involved in the joint venture, together with interest.

In this court, the trial court’s decree on this case is challenged on two grounds: 1. The trial court erroneously decreed a one-half interest in plaintiffs to the property without allowing defendants to present evidence as to the cost of improvements and money expended on the property after April 20, 1972. 2. The monetary judgment in plaintiffs’ favor exceeded that asked in the prayer of plaintiffs’ petition.

The first assignment of error arose during the examination by her counsel of Mrs. Ketterlin, as follows:

“Q When the property was reconveyed to you and your husband, were there any livable houses located on the 11 acre tract?
“A No, sir.
“Q After it was reconveyed to you and your husband, was a house or houses built on this 11 acre tract?
“A Yes, sir.
“Q Do you know who built this house, or houses?
“A My son and my husband.
“Q Was there one house or more than one house built?
“A One house.
“Q One house built. Do you know when construction was started on this house?
“A I can refer to my records and find out. About September 1st, roughly.
“Q Of what year, Ma’am?
“A 1972.
“Q Looking at your records, would you have any recollection as to the amount of money that this house cost?
“MR. BARRY: Your Honor, I am going to object to that. It’s extremely general as to what it cost, and secondly, it’s not shown that she needs to refer to her records yet. If they built the house, then there is a method to go by and show what was paid and, in fact, that it was necessary and reasonable, etc.
“THE COURT: What eventually happened to the 11 acres? Is it in the stipulation?
“MR. McELYEA: No, Your Honor, it is not.
“MR. BARRY: Only to the extent that title to the 11 acres at the present time is in the defendants.
“THE COURT: What’s the purpose of the testimony about the house then?
“MR. WALKER: Well, I think it relates to the value of the property, as well as showing what was done with the property. Your Honor, I think it’s relevant, based on Count I of the prayer of the Miller County petition.
“THE COURT: What affirmative relief do you ask for? I don’t see anything in here about a house on the 11 acres.
“MR. WALKER: Well, Your Honor, they are asking for a resulting trust and an undivided one-half interest in the property. This has to do with what they have put on the property and I think it would have a bearing as to the net result if the Court should find a resulting trust there.
“THE COURT: Well, but you don’t plead any improvements on the property. So far as the pleadings are concerned, we’re dealing with bare land, 11 acres. That’s Mr. Barry’s objection, that there is no pleading as to a house, and, therefore, it’s immaterial.
“MR. WALKER: Yes, Your Honor. We will go on.
“THE COURT: All right. The objection is sustained.”

The difficulty with appellants’ assignment of error lies in the fact that there was no offer of proof made as to what the witness would say if she had been permitted to answer the question. The rule is that the exclusion of evidence cannot be found to have been reversible error if there is no showing of what the excluded evidence would have been. Thayer v. Sommer, 356 S.W.2d 72, 80-81[11, 12] (Mo.1962); Stringer v. Reed, 544 S.W.2d 69, 78[19] (Mo.App.1976).

In Count II of plaintiffs’ petition dealing with the Bear Creek property, plaintiffs sought recovery of their unreim-bursed expenses in the development of the property. The petition alleged expenses of $14,777.53, less credit of $2,081. The prayer was for judgment in the principal sum of $12,696.53. By stipulation, the parties agreed that the amount of plaintiffs’ un-reimbursed expenses was $15,079.03. The court found that plaintiffs had received from defendants $2,235.97 of the proceeds of the Schmidt sale. Defendants do not question this finding. To the difference between the last two figures, the court added $531.73 as the plaintiffs’ share of the profit from the sale of the Schmidt house and arrived at a judgment in favor of plaintiffs for $13,374.79.

The prayer to Count I of the petition sought recovery for plaintiffs’ share of the profits from the sale of the house, without alleging any amount. That the court added that amount to the amount due under Count II and entered a single judgment for the monetary recovery by plaintiffs cannot have prejudiced defendants. The amount of plaintiffs’ reimbursable expenses used by the court was based upon the stipulation to which appellants were a party. In such situation, the pleading is considered amended in accordance with the proof. Rule 55.33(b); Arzberger v. Grant, 500 S.W.2d 23, 27[8] (Mo.App.1973). This claim of error is without merit.

The second cause of action arose out of a joint venture involving land in Camden County. Venue of that cause was changed to Miller County and the cause was consolidated with the previously discussed action involving the Miller County venture. Again, the basic facts upon which the trial court arrived at its judgment on the Camden County property are undisputed and are as follows:

In May, 1971, the parties entered into an oral agreement of joint venture for the purchase and development of lots No. 9, 10, 11, 12, 15, 16[20], 21(22] and 81.1 feet adjoining lot 16 of Makalu Estates, a Camden County subdivision. It was agreed that the defendants should take title in their names but that defendants and plaintiffs were each owners of an undivided one-half interest in the property. They were to share equally in the obligation to make payments on the property and in all profits derived from sales. Subsequently the parties agreed that lot 20 should be owned by the Lodjics alone and lot 22 by the Ketterlins. The purchase price for the property was $36,000. The parties shared the $5,400 down payment equally. The Lodjics contributed $3,180.27 toward further payments and paid one half of the 1971 taxes. Lodjic informed Ms. Ketterlin that he would be unable to contribute his share of the payment due in December, 1972 and he made no contribution thereafter. All subsequent payments to the seller were made by the Ketterlins. In all, the purchase price of $36,000 plus $3,065.25 interest was paid.

Beginning in the fall of 1972 the Ketter-lins sold four of the lots and the 81.1 feet adjoining lot 16. One of the lots was sold with a house on it, built by the Ketterlins, and the lot was not priced separately. The remaining tracts, which cost $14,000, were sold for $17,750. No accounting of the profit was made to Lodjic.

In this court, defendants contend that the decree of the trial court is erroneous because plaintiffs abandoned the joint venture when they failed to make their portion of the payments of the purchase price.

Defendants rely upon a statement of law, found in 48 C.J.S. Joint Adventures § 4a, page 821 (1947):

“Default by the other party. If either or any party to a joint adventure abandons or repudiates it, or wholly defaults in the performance of his part of the agreement, or if his entire interest in the enterprise is seized by a creditor, the other party or parties are not required to perform his or their part of the agreement and may, at their option, terminate the enterprise.” (Emphasis supplied)

The italicized portion of this quotation is overlooked by defendants. The default of plaintiffs may well have provided a basis for termination of the venture, but there is no evidence that defendants undertook to do so. They gave no notice to plaintiffs of their intention to abandon the venture.

Defendants also overlook the following statement found on the same page as the statement upon which they rely:

“Notice of termination. A joint adventure cannot be terminated by one or more of the parties to it, even if a valid reason exists for doing so, without giving notice of termination to the other party or parties.” Ibid., emphasis supplied.

In this case of Shearer v. Davis, 67 Cal.App.2d 878, 155 P.2d 708 (1945), the only case cited by defendants, the co-venturer who was financing a project involving development of airplane wings, informed his co-venturer not only that he would provide no more money but also told him that the project was “finished.” There was, thus, evidence in that case of notice of termination of the venture, not present in this case.

Defendants have not demonstrated that the trial court’s ruling was erroneous.

Defendants’ next assignment of error is related to another transaction between the parties, the purchase of a lot in Sun Swept East Subdivision in Camden County, by plaintiffs from defendants. Again, although the testimony on this issue was in some regards in conflict, defendants do not question the court’s findings of fact. Basically, the facts are as follows:

Defendants were the owners of a lot with a cottage on it in Sun Swept East Subdivision. In May, 1971, plaintiffs agreed to purchase the property from defendants for $7,500. Plaintiffs paid $100 on the purchase price and it was agreed that construction services, labor and materials furnished to defendants by plaintiffs on various projects were to be applied against the balance of the purchase price. The petition alleged that, under the sales contract, the purchasers were entitled to a deed to the property when $1,500 had been paid or credited on the purchase price, with the purchasers to give a deed of trust to the sellers for the balance. The defendants denied that this was the agreement and alleged that the purchasers were to receive a deed only when the full amount of the purchase price was paid. The contract of sale has not been filed here and the transcript is silent insofar as proof of the allegation of either party is concerned.

There was evidence that plaintiffs provided services to defendants in various projects of the value of $3,809.64, for which plaintiffs had not been reimbursed.

Lodjic testified that he requested a deed to the property but did not receive it. Ms. Ketterlin denied that he had requested a deed. She said: “Mr. Lodjic owed me money and I owed him money. We were to get together and settle the whole thing. He would get the deed; he would get anything he needed when our agreement was completely settled. We never got together.”

Lodjic did not pay the $10 monthly subdivision assessment against the property after one payment in 1972. Ms. Ketterlin paid the taxes for 1972 and thereafter at the rate of $83.52 per year. She also paid for the insurance on the property since 1972 at a rate of $90 per year. Lodjic did take possession of the property and retained possession of it.

The Lodjics’ petition sought a conveyance to them of the property or alternatively a judgment against the defendants for $3,810.90 or alternatively that defendants be ordered to give plaintiffs credit against the purchase price in that amount.

Defendants’ counterclaim alleged that plaintiffs had retained possession of the property although they had not made the payments as agreed. The counterclaim alleged that the defendants were willing to give a deed to plaintiffs upon payment of the purchase price. The counterclaim prayed for judgment ordering plaintiffs to accept a deed and pay defendants the balance of the purchase price and the sum of $222.24 representing assessment, taxes and insurance on the property. Alternatively the prayer was for an order that plaintiffs relinquish possession of the premises to defendants.

The trial court found that the parties had terminated, rescinded and abandoned the sale contract and that defendants were the absolute owners of the property as against plaintiffs and directed that plaintiffs surrender possession of the property to defendants. The trial court further found that defendants were indebted to plaintiffs for $3,809.64 for construction services furnished defendants and entered judgment accordingly.

In this court, defendants contend that the trial court erred in finding that the contract had been rescinded and terminated. Defendants argue that there was no evidence that they accepted an offer to rescind the contract or that they offered to rescind or in any manner waived their right to enforce the contract against plaintiffs.

The defendants are not aggrieved parties insofar as the trial court ordered that possession of the property be delivered to them and declared them to be the sole owners of the tract because that is relief alternatively requested by defendants. See Eissler v. Eissler, 468 S.W.2d 217, 218[1, 2] (Mo.App.1971). The trial court did not grant the monetary recovery requested by defendants, but their assignment of error does not assert that the trial court erred in failing to find for them for the assessments, taxes and insurance which they paid. In any event, any such claim could not be reviewed here inasmuch as defendants have not filed as an exhibit the contract on which their claim must rest.

Defendants do- assert that the trial court erred in awarding plaintiffs judgment for $3,809.64 plus interest. However, defendants do not demonstrate that the court’s finding was unsupported by the evidence, contrary to the weight of the evidence or unauthorized by law. Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976).

The final claim of error is based upon the trial court’s failure to find in favor of Ms. Ketterlin on a claim for commission owed her on the Cearnal house. Count I of defendants’ counterclaim alleged that R. P. Lodjic and Ms. Ketterlin entered into an agreement whereby Lodjic would pay Ms. Ketterlin a commission of $1,000 on each Farmers Home Administration program house built by Lodjic and sold by her and a 6% commission on each conventional house sold by her. Lodjic agreed to pay Ms. Ketterlin for his long distance telephone calls and one half of a secretary’s salary. The claim alleged that Ms. Ketterlin sold a number of houses for Lodjic and that he owed her commission totalling $5,850 which he failed to pay. The counterclaim also alleged that Lodjic owed $136.73 for telephone calls and $331.25 for secretary’s salary under this agreement and failed to pay.

By stipulation, the parties agreed that such an arrangement had been made. Lod-jic admitted that Ketterlin was entitled to commissions of at least $3,350, but he denied that she was entitled to a $2,500 commission on the Cearnal house. The trial court entered judgment in favor of Ms. Ketterlin on the counterclaim of $3,350 commissions, $136.73 for telephone calls and $331.25 as Lodjic’s share of the secretary’s salary, and entered judgment in favor of Ms. Ketterlin and against Lodjic for $3,817.98 plus interest.

According to Ms. Ketterlin, the Cearnals owned a lot on Horseshoe Bend on the Lake of the Ozarks and they came to her looking for a builder to erect a house for them. She arranged for Lodjic to do the work and he built the house. She said that Lodjic told her that he would pay her a commission for the Cearnal job and that she had an arrangement with Lodjic that he was to pay her 5% of the total cost of the house. She said that she did not know the cost of the Cearnal house, but that Lodjic told her he would pay her $2,500 commission on the deal. She said that the Cearnal house was the first she sold for Lodjic. “I sold many other houses after that for him * * *.”

Lodjic testified that the Cearnal house was built by Hill View Acres, a corporation for which he built houses, and was sold by Hill View Acres.

On this conflicting evidence, the trial court’s ruling is not to be held erroneous. The trial court could have found for Ms. Ketterlin on the basis of her testimony (all evidence on the subject was oral), but he was not obliged to do so. Ms. Ketterlin testified to an agreement whereby she was to receive a commission of 5% on houses sold by her for Lodjic. She did not know the cost, on which her commission depended under the agreement, of the Cearnal house and fell back on an oral agreement by Lod-jic to pay her $2,500.00. She did not know whether or not the Cearnals contracted with Lodjic to build the house and according to Lodjic, the house was built not by him but by a corporation for which he sometimes worked. The trial court cannot be convicted of error for failing to accept Ms. Ketterlin’s version of the transaction.

Judgments affirmed.

All concur.


author: STEWART, Judge.

text:
    James M. BRESNAHAN, Administrator of the Estate of Margaret M. Bresnahan, Plaintiff, v. Hon. John F. BASS, Comptroller and Chairman, Mary Lou Mullen, Robert R. Thompson, R. Elliot Scearce, James Cantwell, Joseph A. Campagna, Comprising the Board of Trustees, Employees Retirement System of the City of St. Louis, Defendants.
    No. 38136.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 31, 1978.

      Donald L. Schlapprizzi, Murphy & Schlap-prizzi, St. Louis, for plaintiff.
    Jack L. Koehr, Robert C. McNicholas, St. Louis, for defendants.
   STEWART, Judge.

The trial court, upon petition for review, affirmed the decision of the Board of Trustees of the Employees Retirement System of the City of St. Louis (Trustees) holding that Margaret Bresnahan was not eligible for membership in the Retirement System (System) and not entitled to receive any benefits under the System.

Miss Bresnahan appealed the adverse ruling. During the pendency of this appeal, Miss Bresnahan died and James M. Bresna-han, the Administrator of her Estate, was substituted as the appellant. We shall refer to Miss Bresnahan throughout this opinion as plaintiff.

We must first determine whether, this cause is moot by reason of the death of plaintiff. In Preisler v. Doherty, 364 Mo. 596, 265 S.W.2d 404, 407[4, 5] (Banc 1954), the court stated:

“A question is moot when the question presented for decision seeks a judgment upon some matter which if judgment were rendered could not have any practical effect upon any then existing controversy.”

Upon the death of an employee covered under the System no benefits are payable to deceased’s heirs or to deceased’s estate, only the amount of the employee’s contributions and the earnings thereon are payable to the beneficiary named by the deceased. If plaintiff is not a participant the amount so determined is payable to her estate.

Our decision will have a practical effect upon the issue of whether the sum due will be paid to the beneficiary named or to the estate of plaintiff. There are also other court reporters in plaintiff’s position and a decision at this time will be dispositive of many other controversies.

The trial court prepared extensive findings of fact and well reasoned conclusions of law. We adopt large portions of the findings and conclusions without quotation marks and with minor changes.

Plaintiff was first employed by the City of St. Louis on October 7, 1933. She held various positions with the City until October 1, 1944, when she became an official court reporter of the Circuit Court of the City of St. Louis, a position she held until her death. The salary of an official court reporter is set by the General Assembly of Missouri and is paid in part by State and in part by City funds. On October 18, 1957, the Attorney General of Missouri issued an opinion holding that official court reporters of the circuit courts were not State employees and were not eligible for membership in the Missouri State Employees Retirement System.

The Employees Retirement System of the City of St. Louis was established by ordinance approved March 23,1960, and became operative on April 1, 1960. Plaintiff was enrolled as a member of the City System from its inception and appropriate payments were deducted from that portion of her pay received from City funds.

On October 26, 1972, the Missouri Court of Appeals, Kansas City District, issued its decision in Hawkins v. Missouri State Retirement System, 487 S.W.2d 580. This was a class action brought on behalf of the official court reporters serving the circuit courts and courts of Common Pleas in the State of Missouri. The Court held that court reporters were entitled to participate in the Missouri State Employees Retirement System to the full extent of their salaries whether paid by the State or received from other sources and that the reporters were entitled to “prior membership credit” dating from the commencement of such employment. In accordance with this decision, plaintiff became a member in the State Retirement System with a membership date of October 1, 1944.

After the decision in Hawkins the System notified plaintiff that since she was fully covered under the State System with credit for prior service she was not eligible for membership in the City System. Plaintiff disagreed and filed her request for an application for retirement thus starting in motion the proceedings which are now before us.

The Employees Retirement System of the City of St. Louis was established by Chapter 59 of the Revised Code of the City of St. Louis, 1960. Section 59.010 defines various terms used in the ordinance and provides “(3) Employee shall mean any regular appointive or elected employee of an Employer, whether performing city or county functions, except . . . members of other retirement systems established by ordinance and/or State Statute ... are excluded.” The Board of Trustees denied plaintiff’s request for retirement on the grounds that she was excluded under this section of the ordinance.

Plaintiff contended that she had a vested interest in the Retirement System by reason of having at least twelve years of creditable service and having attained age 45 as provided in Section 59.050(5), Revised Code of the City of St. Louis.

Before we can address the merits of plaintiff’s claim we must consider the jurisdictional issues raised by the Trustees. They contend that the circuit court was without jurisdiction to entertain plaintiff’s petition for review because plaintiff failed to either deliver a copy of the petition or send a copy by registered mail to the Trustees within 30 days after notice of the agency’s decision, in violation of § 536.110 V.A. M.S., now Rule 100.04.

Rule 100.04, in relevant part, reads:

“(a) Petition for Review — When Filed Proceedings for review may be instituted by filing a petition in the circuit court or court of common pleas of the county of plaintiff’s residence within thirty days after the mailing or delivery of the notice of the agency’s final decision.
(b) Petition for Review — How Served * * * No Summons shall issue in such case, but copies of the petition shall be delivered to the agency * * or shall be mailed to the agency * * by registered mail, and proof of such delivery or mailing shall be filed in the case.”

The Trustees claim that the Rule requires plaintiff to mail to the Trustees, by registered mail, a copy of the petition within thirty days after the agency delivers its final decision.

The primary purpose of Rule 100.-04(b) is to provide notice to the opposing party that a petition has been filed in order “[t]o eliminate any claim of a denial of due process under the state and federal constitutions.” State ex rel. Day v. County Court of Platte County, 442 S.W.2d 178, 182[5] (Mo.App.1969). Considering the statutory language in light of this purpose it is apparent that the only time limitation imposed by the Rule is that the petition be filed in the circuit court within the thirty day period. There is no time limitation imposed by subsection (b) of the Rule and this portion of the rule is not violated unless notice is so untimely as to deprive the Trustees of due process. No such violation is shown here. The agency rendered its final decision on June 14, 1975. Plaintiff filed a petition for review on July 9, 1975, well within the only time limitation imposed by the Rule. On that same date, plaintiff sent to the Trustees, by first class mail, a copy of the petition which the Trustees admit receiving on July 11, 1975.

The registered mail provision of the Rule is to provide plaintiff a method of proving that the notice has been given. Here, however, the Trustees admit receiving a copy of the petition two days after it was filed in the circuit court, thereby removing the need for such proof.

The trial court did not err in overruling the Trustees’ Motion to Dismiss for lack of jurisdiction on the grounds the copy of the petition was not mailed by registered mail within 30 days after the agency made its final decision.

The System further contends that this Court is without jurisdiction because plaintiff failed to file the record of administrative proceedings within 30 days after filing her petition as required by Section 536.110 RSMo. On August 11, 1975, thirty-two days after the petition was filed, the Court entered an order extending the time to file the transcript to September 12, 1975. This extension was granted upon the ex parte application of plaintiff without motion or notice to the Trustees. The record was filed on August 26,1975. Section 536.-130 provides the filing of the record within thirty days “or within such further time as the court may allow.” The issue is whether the Court had authority to grant the extension on an ex parte application therefor after the original thirty-day period had expired.

Rule 100.06 in part, provides:

“Within thirty days after the filing of the petition or within such further time as the court may allow, the record before the agency shall be filed in the reviewing court.”

In Greene County v. Hermel, Inc., 511 S.W.2d 762, 764[2] (Mo.1974) the Court analogized the above Rule to Rule 81.04 which provides that upon filing a timely appeal in an appellate court “[the] failure of the appellant to take the further steps required to secure review within the periods allowed ‘does not affect the validity of the appeal, but shall be ground for such action as the appellate court deem appropriate.’ ” Reading Rule 100.06 in the context of Greene County v. Hermel we hold that the timely filing of the transcript of the administrative hearing is not jurisdictional and under the facts in this case the court did not abuse its discretion in granting the extension of time within which the transcript could be filed and in proceeding to review the action of the Trustees.

As to the merits of plaintiff’s claim, she alleges the order of the Trustees of the System denying her eligibility for benefits was unsupported by competent and substantial evidence, was illegal and contrary to law in that her rights had vested; that the Trustees are estopped to deny her benefits and that the action of the Trustees constitutes a taking of her property in violation of Article I Section 10 of the Missouri Constitution 1945 and the Fifth Amendment of the Constitution of the United States. She further alleges the ruling was arbitrary and capricious and an abuse of administrative discretion. This multiplicity of allegations in reality is predicated upon a single issue: Had plaintiff’s rights under the Retirement System vested after 12 years of creditable service as a City employee pursuant to Section 59.050(5) Revised Code of the City of St. Louis? Our function on review of an administrative decision is . .to determine primarily whether the decision was supported by competent and substantial evidence upon the whole record, whether it was arbitrary, capricious or unreasonable, and whether the [agency] abused its discretion.” Greene County v. Hermel, Inc., 511 S.W.2d 762, 768[4, 5] (Mo.1974). We may not substitute our discretion for that of the agency.

Plaintiff cites numerous authorities to support her contention that once an employee’s rights under a pension plan have vested, those rights may not be divested by subsequent action or changes in the plan. This is undoubtedly an accurate statement of the law. In adopting this position, plaintiff assumes that since deductions have been withheld from a portion of her salary paid by the City for over twelve years and since she has attained age 45, compliance with the requirements of the vesting ordinance is established. This assumption is unwarranted. The ordinance requires twelve years of creditable service as a City or County employee. Plaintiff does not meet this requirement since she has been a State employee since October 1, 1944. This is conclusively established by the decision in Hawkins v. Missouri State Employees Retirement System, 487 S.W.2d 580 (Mo.App.1972). This was a class action brought on behalf of all official court reporters serving the circuit courts in Missouri. The Court held that court reporters were employees of the State as defined in the Missouri State Employees Retirement System, Section 104.310(15) RSMo., and the reporters were entitled to membership credit commencing with the date of the inception of the Retirement System with credit for prior service. The effect of this ruling is that plaintiff was a participant in the State Retirement System from its inception in 1957 with credit for prior service from October 1, 1944 (Section 104.340 RSMo.).

Since the retroactive effect of Hawkins is that plaintiff herein has been a State employee since 1944 and a participant in the State Retirement System since 1957 (with credit for service from 1944), she falls squarely within the exclusion of Section 59.010(3) Revised Code of the City of St. Louis, “members of other retirement systems established by ordinance and/or State Statutes . . . are excluded.” Rather than having more than twelve years of creditable service as a City employee so as to bring into operation the vesting provisions of Section 59.050(5), she has not been a City employee since October 1, 1944, and was not a City employee as defined by the ordinance when the City Retirement System went into effect. She had no rights under the System which could be vested.

The fact that deductions were made from the City portion of her salary from 1960 until after the Hawkins decision cannot create a status which never came into existence, nor a right contrary to the express language of the ordinance. Nor can that fact constitute an estoppel, as alleged by plaintiff, prohibiting the Trustees from denying that she was a City employee as defined by the ordinance.

Estoppel arises only where there is an admission, statement or act, inconsistent with the claim afterwards asserted; action by the other party on the faith of such admission, act or statement; and injury resulting from the repudiation thereof. Peerless Supply Company v. Industrial Plumbing and Heating Company, 460 S.W.2d 651 (Mo.1970); Emery v. Brown Shoe Company, 287 S.W.2d 761 (Mo.1956). Here, the statement upon which both parties relied was the opinion of the Attorney General. A copy of this opinion was sent to the Trustees by plaintiff in 1960 in an effort to obtain credit for the portion of her salary paid by the State. There is no evidence here that plaintiff was led into participation by the Trustees by reason of any act or statement on their part, but rather she solicited such membership and sought to increase the amount of her contribution thereto.

“The Courts all concur in this, that no man can set up another’s act or conduct as the ground of an estoppel, unless he has himself been misled or deceived by such act or conduct; nor can he set it up where he knew or had the same means of knowledge as to the truth ... as the other party.” Land Clearance for Redevelopment Authority of Kansas City v. Dunn, 416 S.W.2d 948, 951 (Mo.1967) citing Bales v. Perry, 51 Mo. 449, 453.

In this case it is apparent that the plaintiff’s inclusion in the City Retirement System and the resultant deductions from her salary were based upon a mistake created by the opinion of the Attorney General. It is just as apparent that the mistake was mutual.

Furthermore, the application of the doctrine of estoppel in this case would require the Court to order the Trustees to act against the express definition of the governing ordinance.

“The rule is, that no one can be estopped by an act that is illegal and void, and an estoppel can only operate in favor of a party in a case where there is no provision of law forbidding the party against whom the estoppel is to operate from doing the act which is sought to be carried out through its operation.” Himmel v. Leimkuehler, 329 S.W.2d 264, 271[9,10] (Mo.App.1959); Mora v. Hastings, 416 S.W.2d 642, 646[4] (Mo.App.1967).

Plaintiff’s contention that the decision of the Trustees constituted and unlawful taking of her property rights without due process in contravention of the Fifth Amendment of the United States Constitution and Article I Section 10 of the Constitution of the State of Missouri is without merit. The Trustees ordered that all funds deducted from plaintiffs salary by reason of the mutual mistake as to her eligibility for membership in the State Retirement System, plus any earning accumulated thereon, should be returned to her. As have been demonstrated above, plaintiff acquired no rights in the System which were taken from her or denied her. The Hawkins case not only held court reporters to be State employees covered by the State Retirement System but specifically held that court reporters were not County (City of St. Louis) employees even to the extent of that part of their salaries paid from County funds. Hawkins, supra, at page 586. In relying upon this decision, the Trustees did not take anything from plaintiff, but rather followed the dictates of the Court by holding she had never acquired any rights of membership in the City Retirement System.

Plaintiff never was a member of the City Retirement System and is not entitled to any of the benefits thereunder.

The judgment of the trial court is affirmed.

McMILLIAN, P. J., and REINHARD, J., concur.

      . “If a member with at least 12 years of creditable service and attained age 45 or over at date of termination of his employment and not eligible for early retirement leaves his accumulated contributions, he will have a vested accrued benefit determined and payable under the provisions for early retirement. If he resumes employment with the same or another Employer after one year from termination of employment, he shall be considered a new employee and shall accrue benefits payable at later retirement in addition to his vested accrued benefit.”


author: SNYDER, Judge.

text:
    Aaron WILLIAMS, Plaintiff-Appellant, v. Donald JONES et al., Defendants-Respondents.
    No. 38660.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Feb. 7, 1978.

      Freeman, Whitfield, Montgomery & Walton, Rita M. Montgomery, St. Louis, for plaintiff-appellant.
    Evans & Dixon, Henry D. Menghini and Gerre S. Langton, Donald E. Becherer, David B. Agnew, St. Louis, for defendants-respondents.
   SNYDER, Judge.

Plaintiff, Aaron Williams, appeals from a judgment dismissing his petition for damages, actual and punitive, for wrongful discharge from his position as an employee of the Juvenile Division of the Circuit Court of the City of St. Louis which is the 22nd Judicial Circuit of the State of Missouri. The defendants are the judge of the Juvenile Division, certain employees of that division and the Juvenile Division Board of Examiners. The defendants filed separate motions to dismiss for failure to state a claim upon which relief could be granted. The motions were granted by the trial court without leave to amend.

We affirm.

Respondents filed separate motions to dismiss this appeal, alleging appellant’s failure to serve them with two copies of appellant’s amended brief as required by Civil Rules 84.05(a) and 84.07 V.A.M.R. Under Rule 84.07, service must be evidenced by written acknowledgement of counsel served or by affidavit of the person making the service by mailing. Appellant made the usual unverified certification that the copies were mailed but did not comply strictly with the rules by making an affidavit of service. However, respondents have briefed and argued the case and no prejudice to them results from allowing the appeal. Therefore, respondents’ separate motions to dismiss the appeal are denied.

The pertinent portions of plaintiff’s petition, copied from the record without correction, read as follows:

⅜ * * * * *
“5. Plaintiff, Aaron Williams, was expeditiously employed and his salary fixed in accordance with the charger, (sic) rules and ordinances, applicable to the civil service commission and the merit system. (VAMS 231.351 [211.351]).
* * * * * *
12. On or about December 30, 1974, plaintiff, Aaron Williams, was unlawfully and wrongfully discharged from employment with the Juvenile Division of the Twenty-Second Judicial Circuit of Missouri; 920 North Vandeventer, St. Louis, Mo. 63108. The termination was the culmination of transactions, activities and occurrences to wit:
A. On or about October 15, 1971, plaintiff Aaron Williams was appointed Shift Supervisor and assigned to third shift.
B. On or about April 31, 1974, defendant, David G. Braun, Casework Director was placed in supervision of plaintiff.
C. Between October 15, 1971 and July 12, 1974 plaintiff Williams had generally performed his duties as Shift Supervisor competently and expeditiously without complaint from supervisory authorities.
D. On or about July 12, 1974 defendant David G. Braun, Casework Director recommended suspension of Plaintiff, Williams for technical violations of juvenile division policies;
1) May 9, 1974; failure to follow admission policy regarding haircut of Allan Dallas, although equipment could not be found;
2) June 28, 1974: failure to awaken four juveniles at required time who were scheduled to see the doctor, (although nine juveniles had been properly awakened and were awaiting doctor’s arrival and detention policy limiting group that could wait in that location to ten juvenile at one time), and, failure to insure that female juvenile (Tina Wolf) was properly dressed for her medical examination.
3) On July 10, 1974: failure to sign-in Ms. Shirley Cabbs, R.N. upon beginning of duty shift.
4) On July 9, 1974: failure to satisfactorily complete an evaluation of Michael Stark, Youth Leader.
E. On or about July 18, 1974, Superintendent of Detention, facility, defendant Ronald L. Pohle issued letter of reprimand to plaintiff Williams regarding defendant David G. Brown’s request for suspension.
F. On or about November 27, 1974, Defendant Pohle’s Superintendant of detention order plaintiff, Williams to further comply with July 9, 1974 reevaluation request and denied plaintiff’s Williams salary increment.
G. On or about December 11, 1974, defendant, Donald Jones, Director of Court Services and or defendant, Ronald Pohle Superintendant Detention, ordered plaintiff, Willahns to submit names of individuals Williams knew had known of memo of July 12, 1974, placed in plaintiff, Williams’ mail pigeonhole, without first being placed in an envelope to preserve the confidentiality of the communication.
H. On or about December 14, 1974, plaintiff Williams, declined to give names of person he knew had discussed the matter because his knowledge was second-hand and probably unfair, prejudicial and unreliable.
I. On or about December 18, 1974, Defendant Pohle, Superintendent, notified plaintiff Williams of his suspension for allegedly violating Juvenile Division policy by failing to provide requested names.
J. On or about December 19, 1974, plaintiff Williams requested hearing, on December 18, 1974 suspension, before defendants Donald R. Jones, Director of Court Services, Thomas R. McGinn, Director of Legal Services and Ronald Pohle, Superintendent; or alternatively Judge Gary M. Gaertner, Circuit Judge.
K. On or about December 23, 1974, Juvenile Division Board of Examiners convened to hear plaintiff Williams on issue of suspension.
L. On or about December 30, 1974, Juvenile Division Board of Examiner recommended to Presiding Judge Gaertner the termination of plaintiff William- employment with the Juvenile Division, with forfeiture of all accrued vacation and compensatory leave time, effective immediately; which recommendation was duly approved.
M. That the Juvenile Division Board of Examiners were so biased and prejudicially predisposed against plaintiff Williams that the meeting of December 30, 1974 did not provide plaintiff Williams with a hearing within federal or state constitutional guidelines.
N. That the act of terminating plaintiff by the Juvenile Division Board of Examiners held on or about Monday, December 23, 1974 damaged plaintiff Williams' good name, reputation, honor and integrity, stigmatizing and otherwise depriving plaintiff Williams of his liberty and attached to him a “badge of infamy” violative of procedural due process, and plaintiff, as a direct result of his termination, has obtained an ulcer and is continuing to suffer therefrom.
O. That the act of terminating plaintiff by the Juvenile Division Board of Examiners held on or about Monday, December 23, 1974, imposed a disability that foreclosed or limited plaintiff Williams’ freedom to take advantage of future employment opportunities without giving plaintiff a fair hearing as required by minimum procedural due process standards.
P. That the act of terminating plaintiff by the Juvenile Division Board of Examiners held on or about Monday, December 23, 1974 was not a “hearing on the record” VAMS 536.000 [536.010] et seq. to wit:
a) The decision was not on the “whole” record,
b) The decision was not supported by probative and substantial evidence.
c) No evidence was presented at the hearing on the issue of job performance, nor was plaintiff Williams given an opportunity to present his case or defense by oral or documentary evidence, to submit rebuttal evidence and to conduct such cross-examination as may be required for a full and true disclosure of facts.
Q. That the act of terminating plaintiff by the Juvenile Division Board of Examiners held on or about Monday, December 23, 1974 was an adjudicative hearing in order to determine whether plaintiff Williams had violated Juvenile Division policy and therefore plaintiff Williams had the right to be represented by competent counsel.
R. That the act of terminating plaintiff by the Juvenile Division Board of Examiners held on or about Monday, December 23, 1974 deprived plaintiff Williams of substantial due process gurantees because “ultimate” findings were not clearly stated; and the grounds upon which the Board of Examiners acted or the findings and conclusions, as well as the reasons or bases for said decision were not disclosed.
S. That the act of terminating plaintiff by the Juvenile Division Board of Examiners held on or about Monday, December 23, 1974 was for the aforementioned reasons arbitrary, capricious and unreasonable and resulted in an abuse of discretion in violation of Section 536.140, Mo. R.S.”
* * * * * *

Appellant contends that the trial court erred in dismissing his petition. In support of that contention he claims that the petition alleged a contract between him and the juvenile division and that even if there was no contract he has certain interests which are subject to protection under procedural due process and which entitle him to a hearing.

In reviewing the dismissal of a petition for failure to state a cause of action we are required to construe the petition favorably to plaintiff. If the petition, when all of the allegations are given every reasonable and fair intendment, invokes substantive principles of law which, if proved, may entitle the pleader to relief, the petition is not to be dismissed. Watson v. Franklin Finance, 540 S.W.2d 186 (Mo.App.1976); Wells v. Henry W. Kuhs Realty Company, 269 S.W.2d 761 (Mo.1954).

In Missouri, the rule regarding the essential elements of an action based upon wrongful discharge from employment is clear. A contract of employment and a breach thereof are prerequisites to a cause of action for wrongful discharge. Williams v. Kansas City Public Service Company, 294 S.W.2d 36 (Mo.1956); Craig v. Thompson, 244 S.W.2d 37 (Mo.banc 1951). An indefinite hiring is a hiring at will which may be terminated by either party at any time, and no action can be sustained for wrongful discharge. Eaton v. Aid for Victims of Crime, Inc., 536 S.W.2d 176 (Mo.App.1976); Brookfield v. Drury College, 139 Mo.App. 339, 123 S.W. 86 (Mo.App.1909).

In the absence of a contract, termination of appellant’s employment was at the will of the employer, here the juvenile court. Just as appellant could have left his employment at any time with or without cause, so also could he be discharged at any time with or without cause.

The petition alleges no contract and breach thereof to support an action for wrongful discharge. Nowhere in the petition do even the words “contract” or “breach of contract” appear. No facts of any nature are set forth which could be construed as the basis for a contractual relation. In this respect, the petition fails to state a cause of action.

Does the fact that he was employed by the juvenile court give appellant rights he would not have in a private employment situation? The petition alleges that appellant was employed pursuant to § 211.351, RSMo 1969 which reads in part as follows:

“1. The juvenile court shall appoint a juvenile officer and other necessary juvenile court personnel to serve under the direction of the court in each county of the first and second class * * ⅜.”

Section 211.331, RSMo 1969 was not referred to in plaintiff-appellant’s petition, but it relates to juvenile detention facilities and states in paragraph 3:

“The place of detention shall be in charge of a superintendent. The judge of the juvenile court shall appoint and fix the compensation and maintenance of the superintendent and of any assistants or other personnel required to operate the detention facility. Such compensation and maintenance are payable out of funds of the county.”

The appellant here was employed at the detention center of the juvenile court.

Both sections of the statute give the juvenile judge the power to appoint juvenile court personnel. Nothing in either of these sections provides for a definite term of employment, and we have not been referred by appellant to any other statutory provision which establishes either a definite term or a prescribed method of termination. Therefore, appellant’s employment was at the will of the juvenile court and he was subject to removal at any time by the judge, with or without cause.

The facts in State ex rel. Mincke v. Sartorius, 231 Mo.App. 807, 95 S.W.2d 873 (Mo.App.1936) closely parallel the facts here. In Mincke a preliminary writ of prohibition was granted which prevented a juvenile court judge from discharging certain deputy probation officers. The court of appeals quashed the writ of prohibition saying at page 875:

“In such a situation, that is, where the officer holds his office merely ‘at the pleasure’ of the appointing power, the law is well settled that he may be removed from his office without formal charges of misconduct in office and without a hearing.”

In the recent case of Cooper v. City of Creve Coeur, 556 S.W.2d 717 (Mo.App.1977), this court was faced with a situation similar to the one now before it. In Cooper a deceased policeman’s widow sued the City of Creve Coeur for wrongful discharge of her husband. The trial court dismissed the petition. On appeal this court affirmed, citing Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122 (Mo.banc 1956) saying at page 720: “It is apparent that absent a contract or statute granting Cooper a term or some provision that he could be discharged only for cause, the petition does not state a claim for relief.”

The petition sets forth no allegations of a statutory term- or other provision which would enable us to hold that it states a cause of action in this respect.

Paragraph 5 of the petition refers to the charter, rules and ordinances, applicable to the Civil Service Commission and the merit system without being more specific. Appellant’s brief presents us with no specification of error relating to this paragraph but what we have said concerning the statutory basis for appellant’s employment disposes of this allegation. Appellant was employed and discharged under definite statutory provisions (§§ 211.331 and 211.351, RSMo 1969) which permitted the appointing authority, here the juvenile judge, to terminate appellant’s employment at will.

The petition alleges a violation of § 536.140, RSMo in subparagraph 12. S. and refers generally to “VAMS 536.000 [536.-010] et seq.” in subparagraph 12. P. Section 536.140, RSMo 1969 relates to the scope of judicial review of administrative actions. The section is not applicable here since it applies only to “contested cases” which are described as “a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing;” § 536.010(2), RSMo 1969. Here there is no right, duty or privilege of appellant determinable after a hearing. Appellant’s employment was an employment at will. No hearing was “required by law”. This is not a “contested case” as defined in Chapter 536, RSMo 1969 and therefore the statute is not applicable.

Because appellant was not entitled to any hearing, the court need not consider any alleged deficiencies in the hearing gratuitously granted to appellant.

Appellant correctly advances the principle that under the 14th Amendment to the U. S. Constitution due process protection is required if governmental conduct likely will: (1) seriously damage his standing and associations in his community; (2) impose a stigma upon the employee that will foreclose his future opportunities to practice his chosen profession; or (3) constitute an admittedly direct impingement upon the employee’s free speech interest. Board of Regents of State College v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Appellant’s own petition, however, establishes that he was discharged only because of improper job performance and alleges no facts which would support a cause of action based on violation of appellant’s due process rights. The allegations in subparagraphs 12. N. and 12. 0. of the petition are mere legal conclusions and not the averments of fact which are required. In order to require a due process hearing, the charges must involve imputation of illegal, dishonest or immoral conduct which call into question the employee’s good name, honor or integrity. Connealy v. Walsh, 412 F.Supp. 146 (D.C.Mo.1976); Lake Michigan College Fed. of Teachers v. Lake Michigan Community College, 518 F.2d 1091 (6th Cir. 1975). Further, there must be a public disclosure of the reasons for dismissal before there can be damage to the community reputation of the discharged employee. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1975). No facts are alleged in the petition to support such charges or public disclosure.

Since the dismissal of the petition by the trial court is affirmed, this court need not decide whether the Juvenile Division Board of Examiners is a legal entity with the capacity to be sued and a proper defendant in this case.

A review of the record and the applicable law shows convincingly that the judge of the Juvenile Division had the authority to discharge appellant as he did. Appellant’s petition failed to state a cause of action, based on either contract or statute. The petition contained no factual allegations sufficient to support a claim that the procedural due process rights of plaintiff were violated.

The judgment of dismissal is affirmed.

SIMEONE, P. J., and DOWD, J., concur.


author: McMILLIAN, Judge.

text:
    Maurice KARZIN, Plaintiff-Appellant, v. John A. COLLETT et al., Defendants-Respondents.
    No. 38763.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 7, 1978.

      Hayes & Heisler, Clayton, for plaintiff-appellant.
    Gordon F. Webb, Clayton, for defendants-respondents.
   McMILLIAN, Judge.

Appellant Maurice Karzin appeals from a judgment entered in favor of respondents, the police chief, the police commissioner, and members of the Board of Trustees of the Village of Hanley Hills, in the circuit court of St. Louis County. Appellant brought this action for reinstatement and backpay after he was discharged from his job as a police officer. For reversal appellant argues that the trial court erred in finding in favor of respondents because the evidence showed that: (1) appellant had not been tried for cause, contrary to Missouri law, § 80.420 RSMo 1969, and (2) respon-. dents’ action discharging him was unlawful, arbitrary and contrary to Missouri law, § 536.150(1) RSMo 1969. We disagree and, for the reasons discussed below, accordingly affirm the judgment.

Appellant had been employed by the Village of Hanley Hills as a police officer since October 1972. He did not have an employment contract but was apparently hired on a year-to-year basis. On December 15, 1975, appellant received a letter from the police commissioner informing him of his discharge, “[ejffective immediately and upon receipt. . . .” Appellant asked both the police chief and the police commissioner why he had been discharged but received no explanation. Appellant also requested a list of the charges against him and a hearing before the Village Board of Trustees; both requests were refused. Appellant received a check for two weeks’ severance pay and another for fifteen days’ vacation pay.

Appellant first filed his petition under § 536.140 RSMo 1969, of the Administrative Procedure and Review Act. Respondents’ motion to dismiss for lack of jurisdiction was granted and no appeal was taken by appellant. Appellant then filed an amended petition under § 536.150(1) RSMo 1969, which is the basis of the judgment on appeal here. Appellant’s original petition was correctly dismissed because § 536.140 RSMo 1969 applies only to “contested cases” as defined in § 536.010(3) RSMo 1969, which includes only those proceedings before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after a hearing. Because neither § 80.240 nor § 80.420 RSMo 1969 requires a hearing before any administrative action, appellant’s discharge was not a contested case within the meaning of § 536.140 RSMo 1969. For an extensive discussion of the difference between contested and noncon-tested cases under the Administrative Procedure and Review Act see State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 356-57 (Mo. banc 1958); State ex rel. State Tax Comm’n v. Walsh, 315 S.W.2d 830, 834 (Mo. banc 1958); State ex rel. Walmar Investment Co. v. Mueller, 512 S.W.2d 180, 182 (Mo.App.1972).

Section 536.105(1) RSMo 1969 provides for judicial review of administrative decisions, determining the legal rights of any person, which are not subject to administrative review and there is no other provision for judicial inquiry or review of such decisions. In such a review proceeding the court may determine the facts relevant to the question whether such person at the time of the administrative decision had such legal right, may hear evidence and determine whether the administrative decision, in view of the facts as they appear to the court, is “unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involves an abuse of discretion . . . but the court shall not substitute its discretion for discretion legally vested in such administrative officer or body . . ..” § 536.150(1) RSMo 1969. The scope of judicial review under this section is broader than that specified under our Constitution, Art. V, § 22, and § 536.140 RSMo 1969 for contested cases and is in effect a hearing de novo, requiring the making of the same kind of record in court that would be made before the agency. See State ex rel. Leggett v. Jensen, supra and State ex rel. Walmar Investment Co. v. Mueller, supra.

Appellant argues first that, contrary to Missouri law, he was not fired for cause. Appellant contends that he was discharged under § 80.420 RSMo 1969, which provides that “ . . . any marshal, assistant marshal or policeman may be instantly removed from his office by the board of trustees at a regular or called meeting, for any wanton neglect of duty.” Appellant argues that he was “instantly removed” but not for any wanton neglect of duty as required by the statute and therefore his discharge was unlawful. Appellant further argues that it is reasonable to infer from this statute that the legislature intended that village policemen could only be removed for cause.

Respondents, however, argue that § 80.-240 RSMo 1969, which provides that the board of trustees shall appoint and remove officers, includes policemen and is the controlling statute. Respondents’ basic argument is that appellant was essentially an employee at will and could therefore be discharged without cause or reason. In Cooper v. City of Creve Coeur, 556 S.W.2d 717 (Mo.App.1977), the court held that where a city policeman, in the absence of any statutes, ordinances, regulations or an employment contract giving policemen tenure in employment or providing that he could be discharged only for cause, could be removed by the mayor with the consent of all the aldermen at will, was an employee at will and could be discharged without cause or reason. Id. at 720, citing Christy v. Petrus, 365 Mo. 1187, 1189, 295 S.W.2d 122, 124 (Banc 1956); cf. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (under local ordinance policeman held his position at the will and pleasure of the city and therefore his discharge without a pretermination hearing did not deprive him of a property interest protected by the Fourteenth Amendment).

Because there are no statutes, ordinances, regulations or an employment contract which give appellant, as a village policeman, tenure of employment or restrict discharge in any way, except § 80.420 RSMo 1969, appellant was an employee at will. We can only interpret § 80.420 RSMo 1969 to create an exception from that status whenever a policeman is “instantly removed.” Such a summary and extraordinary action is preconditioned upon wanton neglect of duty. If appellant was “instantly removed” for wanton neglect of duty, his discharge (as an administrative action) would be reviewable under § 536.150(1) RSMo 1969. See Milberg v. Sanders, 524 S.W.2d 441 (Mo.App.1975). If, however, appellant was not “instantly removed” but simply discharged, the determination of the adequacy of the grounds for his discharge is not subject to judicial review because, as an employee at will, he could be discharged for any reason or no reason. Cooper v. City of Creve Coeur, 556 S.W.2d 717, 721 (Mo.App.1977); see also Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2974, 48 L.Ed.2d 684 (1976).

We find that appellant was not “instantly removed” but simply discharged. Although it is true that the effect of the discharge letter upon appellant was immediate, appellant received a check for two weeks’ pay and another for fifteen days’ accrued vacation pay. Moreover, the board of trustees decided to discharge appellant at its regular monthly meeting, on December 4, 1975, to be effective December 15, 1975. There was no charge of wanton neglect of duty. As discussed above, there can be no judicial review of the discharge of an employee at will. See Christy v. Petrus, supra; Cooper v. City of Creve Coeur, supra; Russell v. City of Raytown, 544 S.W.2d 48 (Mo.App.1976); State ex rel. Kendall v. Wilson, 151 Mo.App. 719, 132 S.W. 623 (1910).

Appellant cites several recent cases in which certain procedural due process rights were extended to policemen: Heidebur v. Parker, 505 S.W.2d 440 (Mo.App.1974); Moore v. Damos, 489 S.W.2d 465 (Mo.App.1972); Seism v. Long, 280 S.W.2d 481 (Mo.App.1955). We distinguish those cases because in each case a statute, ordinance or regulation required a hearing of some kind and did not involve policemen hired at will. We realize that this analysis essentially leaves appellant without recourse and precludes any kind of judicial review of his discharge. We cannot, however, change appellant’s status as an employee at will and, in the absence of any protective statutes, ordinances, regulations or employment contract, can reach no other conclusion.

Accordingly, the judgment is affirmed.

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

      . Unlike § 79.240 RSMo 1969 which specifically refers to appointment of officers at will, § 80.240 RSMo 1969 does not explicitly refer to the status of such officers but only gives the board of trustees the power to appoint and remove. Therefore, an ordinance which in some way protected village employees would not necessarily operate so as to infringe that power and be contrary to state law. Compare Russell v. City of Raytown, 544 S.W.2d 48 (Mo.App.1976).

      . The lack of procedural due process protection afforded police officers, in particular the Bishop v. Wood, has been the subject of several recent law review articles. Mancke, Removal, Suspension or Demotion of a Municipal Police Officer: A Review and Analysis, 79 Dick.L.Rev. 380 (1974-75) (Pennsylvania has statutes which afford some procedural due process protection to local police); Rabin, Job Security and Due Process: Monitoring Administrative Discretion Through a Reasons Requirement, 44 U.Chi.L.Rev. 60 (1976); Rosenblum, School Children: Yes, Policemen: No — Some Thoughts About the Supreme Court’s Priorities Concerning the Right to a Hearing in Suspension and Removal Cases, 72 NW.L.Rev. 146 (1977). See also Mashaw, The Supreme Court’s Due Process Calculus for Administrative adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value, 44 U.Chi.L.Rev. 28 (1976). We would urge the legislature to reexamine these statutes, especially in view of the great difference in the employment and procedural protection of police officers as now exists under present statutes and ordinances. “In an era that has placed renewed stress on making police aware of their obligation to recognize the rights of the accused and to become sensitized to the concerns of minority groups it is peculiarly dysfunctional to subject the same police to ir-remedial arbitrariness at the hands of their superiors within the personal structures of government.” Right to a Hearing, 72 NW.L. Rev. 146, 168 (1977) (Citations omitted.)


author: McMillian, Judge.

text:
    Dolores LEICHT and George A. Leicht, her husband, Plaintiffs-Appellants, v. VENTURE STORES, INC., Defendant-Respondent.
    No. 39040.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 7, 1978.
    Jack J. Cavanagh, Jr., Clayton, for plaintiffs-appellants.
    Evans & Dixon, Ralph C. Kleinschmidt, Gerre S. Langton, St. Louis, for defendant-respondent.
   McMillian, Judge.

This is an appeal from a summary judgment entered in the circuit court of the City of St. Louis against both appellants Dolores Leicht and George A. Leicht, her husband, and in favor of respondent, Venture Stores, Inc. The grounds were that appellant Dolores Leicht’s claim for personal injuries was an “accident” under §§ 287.020 and 287.120, RSMo Supp.1975 of the Missouri Workmen’s Compensation Law, and therefore cognizable solely before the Missouri Division of Workmen’s Compensation and that the circuit court was without jurisdiction over the subject matter.

Appellant Dolores Leicht at the time of the accident was an employee of respondent. She was assigned a desk and work space in the stockroom reserved for her department. During the scope of her employment appellant sustained poisonous spider bites on two separate occasions. Respondent does not dispute the facts set forth in the petition.

Appellant contends that the injuries sustained were not the result of an “accident” as this term is defined in § 287.020(2), RSMo Supp.1975, because the events which produced the injuries were neither unexpected nor unforseen on the part of respondent. Appellant bases this contention on the theory that because respondent had notice of the presence of the spiders before the injury, her injury was foreseeable.

Respondent contends, however, that in construing the term “accident” to mean an act which is unforeseen or unexpected, the court should only consider the actions, intentions and knowledge of the employee, and not the employer.

The term “accident” is defined in § 287.-020(2), RSMo Supp.1975 to mean “an unexpected or unforeseen event happening suddenly and violently with or without human fault and producing at the time objective symptoms of an injury.” Therefore, the sole issue to be resolved is whether, as a matter of law, prior notice of an unsafe condition on the part of the employer would preclude any claim or defense that a subsequent injury resulting from that condition was unexpected or unforeseen. This issue appears to be one of first impression in Missouri.

In construing the term “accident” we are required to do so liberally, in order to extend the benefits of the Workmen’s Compensation Act to the largest class possible and restrict those excluded to the smallest class possible. Roux v. Dougal’s Big Star Food Store, 510 S.W.2d 810, 812 (Mo.App.1974); Todd v. Goostree, 493 S.W.2d 411, 416 (Mo.App.1973).

The purpose of the Workmen's Compensation Act is to substitute finite liability for the “fortuities” of the available common law remedies, e. g., Dudley v. Victor Lynn Lines, Inc., 32 N.J. 479, 161 A.2d 479, 484 (1960). The employee under this statute foregoes his right to sue his employer for negligence, and to obtain the common law measure of damages in cases where fault could be shown, but he gains a speedy and certain measure of damages for all work-connected injuries. In return the employer accepts absolute liability.

Therefore, with this purpose in mind we feel compelled to construe the term “accident” in its broadest context so as to extend benefits to the largest possible class. The term “accident” is construed to mean an unexpected or unforeseen event which is not designed, planned or voluntarily brought about by the employee. Notice or knowledge on the part of the employer of the dangerous condition which brought about the injury was not intended to be a consideration in determining the foreseeability of the event. To construe the term “accident” in any other manner would deny workmen’s compensation recovery for all work-related injuries which involve negligence on the part of the employer. Such a construction would exclude a very large possible class, and hence be contra to the purposes of the statute.

Other jurisdictions have similarly construed the term “accident”. It is well settled in other jurisdictions that the fact that an injury was occasioned by acts or conduct constituting negligence or wantonness on the part of the employer does not remove such injury from under the Act, and that a common law action to recover damages would not lie. See Fowler v. Southern Wire & Iron, Inc., 104 Ga.App. 401, 122 S.E.2d 157 (1961); Duncan v. Perry Packing Co., 162 Kan. 79, 174 P.2d 78 (1946); Caline v. Maede, 239 Or. 239, 396 P.2d 694 (1964); Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266 (1973); Kennecott Copper Corp. v. Reyes, 75 Nev. 212, 337 P.2d 624 (1959).

In Kennecott, supra, a similar fact situation is presented. In this case the employee was killed by a landslide while working in his employer’s open pit mining operation. The employee’s mother and father brought a wrongful death action alleging that the employer was liable for failing to provide a safe place to work and for failing to warn of hazards or take precautions against such hazards. The employer contended, however, that such an injury was an “accident” as defined in the Nevada Workmen’s Compensation Act and therefore was cognizable solely before the Nevada Industrial Commission. The Supreme Court of Nevada accepted the employer’s contention and held that the mere fact that the employer had foreseen or expected that at some time in the future an injury would occur does not permit the conclusion that the event was not an accident.

In Duncan, supra, another similar fact situation is presented. In this case the employee was electrocuted while operating employer’s poultry picking machine. Employee’s husband then brought a wrongful death action, alleging that the employer failed to provide a safe place to work. The trial court dismissed the action on the grounds that such an injury resulting in death was within the Workmen’s Compensation Act and therefore a common law action would not lie. On appeal the plaintiff contended that while the injury may have been an “accident” as far as the employee was concerned, it was not in reality an “accident” as far as the employer was concerned, being readily foreseeable by him. The Supreme Court of Kansas rejected this argument and held that such an event was an “accident,” despite the negligence on the employer’s part. In addition, the court said:

“To hold otherwise would open a by-pass around the Act and permit attempted recovery in common law actions which the Act was intended to supersede. If the plaintiff here had established the same facts in a proceeding to secure compensation under the Act, can there be any doubt that he would have been entitled to an award? . . . .” (Duncan, supra, 174 P.2d at 83.)

The facts of the Kennecott and Duncan cases are strikingly similar to the facts of the present situation. Each involves a situation where an injury occurred due to negligence on the part of the employer. In addition, the event which caused the particular injury was foreseeable. In the present situation the appellant was injured due to a dangerous condition of which the employer had notice. For the sake of argument we will assume that respondent’s conduct was negligent. Nevertheless, we hold, as other jurisdictions have held, that the fact that the employer was negligent in allowing an injury to occur is not relevant in determining whether an “accident” has occurred within the terms of the Workmen’s Compensation Act. The appellant’s sole remedy is within the terms of the Workmen’s Compensation Act.

Accordingly, the trial court’s judgment is affirmed.

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

      . The Nevada Workmen’s Compensation Act defines “accident” as an “unexpected or unforeseen event happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury.” See § 616.020, N.R.S. (1975). It must be noted that Missouri’s definition is exactly the same.