author: LESTER, Judge.

text:
    H. B. LEWIS and Donna Sue Lewis, Appellants, v. Delbert LIMING and Martha Liming, Appellees.
    Court of Appeals of Kentucky.
    Oct. 20, 1978.

      Todd M. Ward, Jackson & Ward, Louisa, for appellants.
    Gene A. Wilson, Thomas M. Smith, Louisa, for appellees.
    Before HOGGE, LESTER and REYNOLDS, JJ.
   LESTER, Judge.

This is an appeal from a judgment entered pursuant to a jury verdict determining that a coal lease between the parties was null and void by virtue of alteration.

The appellees filed their complaint on February 13, 1976, to which answer was filed by appellants on March 3, 1976. On July 14, 1976, appellants took the depositions of Cíete Ferguson and Boone Sloas with counsel for appellees present, but neither of appellees were in attendance. Witness, Ferguson, at the time of his testimony, listed his address as “Sandy Hook” while Sloas gave his residence as “Box 24, Isonville, Kentucky.” Both of these communities are in Elliott County within forty miles of Louisa, Kentucky, the seat of the Lawrence Circuit Court, on Kentucky Highway 32.

On March 24,1977, the judge of the Lawrence Circuit Court entered an order setting the trial for May 30, 1977, but for some unrevealed reason, the litigation did not take place until October 3, 1977. However, counsel for both parties must have anticipated an earlier trial to be held on March 28, 1977, and accordingly, had subpoenas issued for their witnesses including Ferguson, Sloas and his wife. The returns show all three as having been served on March 10, 1977, by the sheriff of Elliott County.

The trial lasted one day, namely, October 3, 1977, and sometime during the afternoon of that day, after appellants had introduced the testimony of all of their witnesses that were present, the following colloquy took place outside the hearing of the jury:

THEREUPON, at the Bench, out of Jury Hearing, Mr. Ward made motion to read depositions to the jury of witnesses, Ferbuson (sic) and Sloss, (sic) and Mr. Wilson said, “We would want to have the right to cross-examine any witness he put on the stand. He says in accordance with the rules of Civil Procedure, but there is no rule I know of in Civil Procedure where he can take the evidence of his own client when you have got a case for jury trial.”
BY MR. WILSON: (continuing) I object because we don’t have the right to cross-examine in front of the jury because when those were taken, it was immediately after the suit was filed, but I didn’t know what his intentions were.
BY MR. WARD: It was in July, 1976.
BY MR. WILSON: And my clients were not there where I could consult with them and know what to come back and hit them on on cross-examination.
BY MR. WARD: The suit was filed in February.
BY MR. WILSON: You gave notice to take those depositions, and have a freaky way to move for summary judgment when a jury trial is demanded, and there is no civil rule I know of you can take a deposition and move like that. Now, he could take a deposition of my client on discovery.
BY THE COURT: This would be just the same as if they were doctors testifying.
BY MR. WILSON: But there is no rules in the Civil Rules to allow that. You can subpoena those people and get them in.
BY THE COURT: Doctors are not excluded. You don’t have to take their deposition; if you want to force them in, I will force them in.
BY MR. WILSON: There is a civil rule that says doctors and lawyers, and if they live beyond twenty-five miles, that you can take them by deposition and read it in Court, or 200 miles.
BY THE COURT: No, it is 100 miles.
BY MR. WILSON: There are just lay people, and Mr. Ferguson is a resident of Lawrence County.
BY MR. WARD: He is in Elliott County.
BY MR. WILSON: I want to hear what he would say on direct in front of them.
BY MR. WARD: I move that the defense be allowed a continuance until tomorrow to obtain, see if we can obtain further witnesses that we have had summoned but for some reason they were unable to be here. We have had them subponaed (sic) for quite some time.
BY THE COURT: I suggested this morning you could have the process of the Court even to the point of attachments, and I don’t believe you saw fit to get an attachment, so overruled.

We are urged to reverse upon the theory that the trial court erred in refusing to allow the introduction of the depositions of the absent witnesses or in the alternative, refusing to grant a continuance. CR 32.-01(c)(i).

The rule and its subsections upon which appellants rely state that depositions “may” be used “if” the court finds that the witnesses are at a point more than 100 miles from the place where the court is sitting. This type of rule is not new to this jurisdiction, for Section 554 of the Civil Code, in effect in 1918, contained a similar provision as today’s CR 32.01(c) except the distance at that time was 20 miles. This was a modification of the common law which required the witness to present his evidence orally before the tribunal. Dailey v. L & E Ry. Co., 180 Ky. 668, 203 S.W. 569 (1918). The former code section required that the several conditions under which a deposition may be introduced be in existence at the time of trial, but CR 26.04 (now CR 32.01) deleted that mandate, although Juett v. Calhoun, Ky., 405 S.W.2d 946, 949 (1966), would indicate that the situation as of the day of litigation is what must be considered in dealing with an absent witness.

In Phelps Roofing Company v. Johnson, Ky., 368 S.W.2d 320, 324 (1963), the court expressed the view that the trial judge should be allowed reasonable discretion in determining whether the conditions of the rule had been met and further subscribed to liberal interpretation of the rule. In this last cited opinion, the court suggested that the party seeking to employ a deposition offer some evidence of the missing witnesses’ whereabouts such as an affidavit of counsel. The idea of offering some proof to support the absence of the witness in order to use his deposition is referred to as early as 1832 in Gilly & Pryor v. Singleton, 13 Ky. (3 Litt.) 250. As to the type of proof see 23 Am.Jur.2d Depositions and Discovery § 119 at 447 which agrees with the Gilly & Pryor case. See also 26A C.J.S. Depositions § 92(2)(c)aa at 440.

Having set forth the applicable principles, we now examine what transpired in the present appeal. By way of brief, appellants say that Ferguson was in Canada at the time of trial, but they told the trial court that “he is in Elliott County”. No representation was made that he was out of the country, out of the state or more than 100 miles from the court. Moreover, the court had before it the record containing Ferguson’s deposition which was taken in Lawrence County and reflected that he was a resident of Sandy Hook in adjoining Elliott County and had been so for two years. Prior to that, he had lived in Blaine, Lawrence County, most of his life.

Absolutely nothing was said to the court concerning the whereabouts of Sloas and his wife but, again, the record contained Frances Boone Sloas’ deposition showing him to be a resident of Isonville, Elliott County, where he and his spouse had been served with a subpoena.

Sometime during the morning of the trial, the trial court offered appellants the assistance of “attachments,” but it is apparent that they did not avail themselves of that procedure.

After over a half day of the trial before a jury, appellants requested a continuance in order to secure the testimony of the missing witnesses. There was no effort to comply with CR 43.03, in that the necessary affidavit was not filed. Even though subpoenas had been issued and served upon the Sloas couple for appearance on October 3, 1977, there is no showing that such process was requested for Ferguson. It is elementary that an application for a continuance is addressed to the sound discretion of the court and the action of the court will not be disturbed unless that discretion is abused. Wells v. Salyer, Ky., 452 S.W.2d 392 (1970). In view of the fact that there is nothing in the record to indicate if Ferguson responded to the subpoena issued for March 28, 1977, and that his appearance was recognized, and there being no process for him for the October 3, 1977 trial date, then appellants were precluded from filing an affidavit pursuant to CR 43.03. Hall v. Commonwealth, Department of Highways, Ky., 511 S.W.2d 204, 205 (1974). The trial court did not abuse its discretion.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: PARK, Judge.

license: Public Domain

text:
    KENTUCKY CARBON CORPORATION, Appellant, v. Floyd DOTSON, James R. Yocom, Commissioner of Labor and Custodian of the Special Fund, and Workmen's Compensation Board of Kentucky, Appellees. James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Appellant, v. Floyd DOTSON, Kentucky Carbon Corporation, and Workmen's Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Oct. 20, 1978.

      William J. Baird, Pikeville, for Kentucky Carbon Corp.
    Kelsey E. Friend, Pikeville, for Floyd Dotson.
    John Riehl, Jr., Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for James R. Yocom, Commissioner of Labor and Custodian of the Special Fund.
    Before COOPER, HAYES and PARK, JJ.
   PARK, Judge.

Kentucky Carbon Corporation and the Special Fund appeal from a judgment of the Pike Circuit Court modifying an award by the Workmen’s Compensation Board of disability benefits to Floyd Dotson. The board found that Dotson was 30% partially disabled as the result of a work-related injury on May 19, 1975, while in the employ of Kentucky Carbon. This disability was apportioned equally between Kentucky Carbon and the Special Fund on the basis that each was responsible for a 15% partial disability. The circuit court held that Dotson was entitled to an award for the injury of May 19, 1975, based upon “lost wages” equal to 100% of his average weekly wage of $281.20 on the date of the injury. The board’s award to Dotson of $52.72 per week was increased to the statutory maximum of $88.00 and divided equally between Kentucky Carbon and the Special Fund.

The judgment of the circuit court was grounded on the decision of this court in Yocom v. Bentley, Ky.App., 25 Ky.L. Summ. 1 (January 6, 1978), discretionary review pending. Subsequently, the Supreme Court considered the question of “lost wages” as an element or recovery in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, 25 Ky.L.Summ. 12 (1978). The plurality opinion in the Transport Motor Express case expressly rejected any construction of the Workmen’s Compensation Act which would authorize recovery of lost wages as a separate element. The plurality opinion held that lost wages were to be used only to measure the extent of occupational disability. The effect of the Supreme Court’s opinion in the Transport Motor Express case was to undermine the decision in Yocom v. Bentley, supra, because the Bentley case was based upon the original opinion of the Court of Appeals in the Transport Motor Express case, 568 S.W.2d 509 (1977), which was expressly reversed by the Supreme Court. Therefore, the judgment of the circuit court must be reversed.

However, a further discussion of the case is required. Dotson claimed that he suffered separate injuries on September 25, 1974, and May 19, 1975. He also filed a claim for the occupational disease of “coal miner’s pneumoconiosis and/or silicosis.” The board found that Dotson suffered no disability as a result of the injury of September 1974; that the injury of May 1975, resulted in a 30% partial disability, and that he became permanently disabled from occupational disease on September 22, 1975, when he returned to work. A separate award of $69.00 per week for 425 weeks was made to Dotson for the disability from occupational disease, with a provision for a credit to the extent that the two awards overlapped.

Implicit in the judgment of the circuit court was a finding that Dotson was totally disabled from the injury of May 1975 alone. The circuit court could not have concluded that Dotson was entitled to recover for the injury of May 1975 on the basis of lost wages equal to 100% of his average weekly wages unless the circuit court also concluded that the Board erred in its finding that his total disability after September 22,1975, was attributable to occupational disease. The circuit court necessarily concluded that the board erred in holding that Dotson was only 30% partially disabled by the injury of May 1975.

If Dotson is totally disabled from the injury of May 1975, the judgment of the circuit court is correct without regard to any recovery for lost wages. His average weekly wage was $281.20 per week. Based on five dependents, the statutory factor was 62½%. His benefits for total disability under KRS 342.730(l)(a) would have been limited to the statutory maximum of $88.00 per week under KRS 342.740(1). If totally disabled, Dotson would have been entitled to the statutory maximum without the necessity of awarding “lost wages” as a separate item of recovery.

However, the medical evidence in the record supports the board’s award. Drs. Wessinger, Thompson and Wheeler all found that Dotson suffered no permanent disability as a result of the injury of May 1975. Dr. Schram found a 25% functional disability but did not attribute it to the injury of May 1975. Dr. Fischer testified that Dotson had a 30% functional disability as a result of the combined effect of the September 1974 and May 1975 injuries. Only Dr. Roland testified that Dotson had a 30% functional disability attributable to the May 1975 injury alone. It was the prerogative of the board rather than the courts to determine the degree of functional disability on the basis of the conflicting medical testimony and to translate the functional disability into occupational disability. Commonwealth, Department of Highways v. Gay, Ky., 472 S.W.2d 508 (1971). The board could find that only part of Dotson’s loss of earnings was attributable to the injury of May 1975. The findings of the board being based upon substantial evidence of probative value, they cannot be set aside on appeal. Holman Enterprise Tobacco Whse. v. Carter, Ky., 536 S.W.2d 461 (1976); Volk v. Restaurant Concessionaires, Inc., Ky., 476 S.W.2d 195 (1972).

The judgment of the circuit court on both appeals is reversed with directions to enter a new judgment affirming the award of the board.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Donald L. REDDING, Defendant-Appellant.
    No. KCD29182.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 10, 1978.
    Application to Transfer Denied Dec. 18, 1978.
    Lee M. Nation, Kevin R. Locke, Asst. Public Defenders, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

The defendant appeals a judgment of conviction for robbery in the first degree and a jury-imposed sentence of thirty years. The defendant was charged with the armed robbery of a tavern. The bartender positively identified the defendant and also identified some keys which the defendant left behind at the scene of the robbery. Subsequently, these keys were found to belong to defendant’s pickup truck, which was also left at the scene of the robbery.

An opinion was handed down in this case pointing out that the original transcript showed the untimely filing of the motion for new trial. On motion for rehearing, defendant asserted that an extension for filing the motion for new trial had been granted. Pursuant to leave of court, a supplemental transcript has been filed showing the motion for new trial was timely filed. The opinion has been modified to reflect a treatment of defendant’s points as preserved error.

Defendant first claims that the trial court erred in failing to dismiss the information on defendant’s motion because of an eighteen-month delay between the occurrence of the crime and the filing of the information. Upon this claim of pre-in-dictment delay, it is clear that if there was substantial prejudice to the defendant’s right to a fair trial and the delay was an intentional device to give the government a tactical advantage over the defendant, then there may be a deprivation of due process. The facts in this case, however, clearly show that there was no error on the part of the trial court in overruling defendant’s motion. The evidence shows the defendant had lived in Colorado and Chicago, Illinois after the commission of the crime. He was apprehended in Chicago and returned to Missouri approximately nine months before the trial. The defendant asserts no claim of prejudice other than his inability to recall the events of the day in question. Such failure to recollect is a wholly subjective state of mind, and it was for the trial court to determine the credibility and weight of such assertion. State v. Gardner, 534 S.W.2d 284 (Mo.App.1976).

Defendant further claims that the trial court erred in failing to dismiss because of the eight-month delay from arraignment to trial, relying upon Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Missouri has adopted the four-factor test of Wingo in State v. Morris, 501 S.W.2d 39 (Mo.1973). Eight months delay is not per se prejudicial. State v. Morris, supra. Defendant was tried within three terms after the filing of the information as required by § 545.920 RSMo 1969. The record is not entirely satisfactory, but at least two of the delays in the trial were occasioned by the defendant’s attorney being unavailable for trial on the setting of the case. There is no assertion by the defendant of any substantial problem presented by the delays, and there was no error in the denial of the motion.

Defendant, in his last point, claims that the trial court erred in failing to accept a guilty plea. This issue is controlled by Steward v. State, 499 S.W.2d 830 (Mo.App.1973), and is without merit. Factually the defendant denied participation and attempted to offer an equivocal plea which the trial court properly refused under Rule 25.04.

Judgment of conviction is affirmed.

All concur.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Joseph MATTINGLY, Appellant.
    No. 39086.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 22, 1978.
    Motion for Rehearing and for Transfer Denied Oct. 13, 1978.
    Application to Transfer Denied Dec. 18, 1978.

      J. Martin Hadican, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Stanley Robinson, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Clayton, for respondent.
   CLEMENS, Presiding Judge.

Defendant Joseph Mattingly has appealed his 1976 conviction for second-degree murder for which he was sentenced to fifteen years’ imprisonment.

Defendant contends on appeal the trial court erred in admitting a photograph of the victim because it failed to shed any light on a material issue in the case and was so prejudicial as to outweigh its probative value. He also contends the trial court erred in overruling his motion to dismiss the information because Article I, § 22(b) of the Missouri Constitution and § 494.031, R.S. Mo.Supp.1975 denied him a trial by an impartial jury as required by both state and federal in that women shall be excused upon request. We deny both contentions.

The mother of the year-old victim testified at trial that during a weekend in November, 1975 she and defendant were teaching the baby to walk. Defendant did so by placing the baby against a door with varying degrees of force and when he was unable to walk, hit him with his hand and a belt. While repeating this procedure the next day, the baby stopped breathing. Defendant revived the baby with mouth-to-mouth resuscitation and refused to allow medical attention. The following day, the mother told defendant she was leaving and the baby started to cry. Defendant then picked the baby up, told him to stop crying, and threw him a foot or two onto a pile of blankets on the floor. The baby again stopped breathing and this time defendant’s efforts to revive him were unsuccessful.

Defendant neither testified nor offered evidence. His position, apparent from the cross examination of the mother, was that he had stood the baby against the door and had accidentally dropped him on the floor. On cross examination the mother testified defendant enjoyed playing with the child, treated him as his own son, and spanked him only once before November 1975; she described defendant’s attitude toward the baby when teaching him to walk was one of helpfulness.

The state called a police officer who identified the transcript of an interview with defendant. It contained statements admitting he struck the baby, whipped him with a belt, hit his legs and slapped his face. Defendant maintained he did not mean to hurt the baby.

Defendant objected to the introduction of color photographs of the victim as inflammatory. The photographs were taken after surgery but prior to autopsy and depicted frontal and back views. The objection was sustained as to the frontal view and denied as to the back view. Dr. Joseph Sudekum used the photograph in testifying the baby had multiple bruises over his entire body and had belt marks on the back of his legs. He opined the cause of death was blood clots on the brain resulting from application of force to the baby’s head.

The trial courts have wide discretion in determining admissibility of photographs. State v. Stevens, 467 S.W.2d 10 [16-18] (Mo.1971). Even though a photograph may be inflammatory it is admissible if it tends to prove a material element of the state’s case. State v. Jackson, 499 S.W.2d 467 [5-8] (Mo.1973).

Here, defendant was charged with second-degree murder, the elements of which are wilfulness, premeditation, and malice aforethought. State v. Randolph, 496 S.W.2d 257 [1] (Mo.1973). Defendant’s brief acknowledges the only element not admitted by him was his intent. He contends the photograph was not probative of this element. We disagree.

The charged element of wilfulness requires a determination of whether defendant acted knowingly or intentionally to kill or to cause serious bodily harm. Evidence of prior mistreatment of a child may be considered in establishing the intent required for second-degree murder. State v. Cook, 557 S.W.2d 484 [5, 6] (Mo.App.1977). The photograph of the baby’s battered body was probative of defendant’s prior mistreatment and was therefore admissible on the issue of intent.

Defendant relies on State v. Robinson, 328 S.W.2d 667 (Mo.1959) and State v. Floyd, 360 S.W.2d 630 (Mo.1962) for the proposition that a photograph must be excluded if its prejudicial and inflammatory effect on the jury outweighs its probative value. These cases were distinguished by Jackson, supra, at [2 — 4], In Floyd, the photograph was held to prove nothing. In Robinson, the photograph was obscene and offensive and added nothing to the case. Here, the photograph accurately depicted gruesome injuries and aided the state in proving the material element of intent. Where a photograph is relevant to an issue in the case it is not rendered inadmissible simply because it is inflammatory. State v. Thurman, 521 S.W.2d 773 [3] (Mo.App.1975).

Moreover, as in State v. Duisen, 428 S.W.2d 169 [1] (Mo.1967), the photograph could not have inflamed the minds of the jury any more than they were “otherwise inflamed by the uncontroverted evidence of these utterly revolting acts of the defendant.” The exclusion of the frontal view, which showed the results of surgery more extensively, indicates the trial court carefully exercised its discretion. If the photographic view was shocking it was because the crime is of that sort. State v. Moore, 303 S.W.2d 60 [5] (Mo.1957).

Turning to defendant’s second contention, State v. Duren, 556 S.W.2d 11 [5-7] (Mo.1977) is dispositive. Upholding excusing women from jury service upon their application, the court stated, at l.c. 17: “We hold the challenged Missouri constitutional provision and implementing statute are part of a facially valid jury selection system and the product of that system did not deny defendant’s right to due process of law under the Fourteenth Amendment as that law embodies fulfillment of the Sixth Amendment’s guarantee of an impartial jury trial in criminal prosecution.”

The court in Duren distinguished Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), on which defendant relies, by noting its thrust was that “no longer in criminal cases may women as a class be excluded from jury service or automatically exempted on the basis of sex, if as a consequence, jury venires are almost totally male.” Duren, supra at [1]. The invalidated Louisiana provision automatically exempted women from juries and required affirmative action by women to have their names included. Section 494.031, R.S.Mo. Supp.1975, and Article I, § 22(b) of the Missouri Constitution do not automatically exempt women, but rather provide a privilege to seek exemption. Duren, supra, at [5-7]-

In addition, we note reasonable exemptions are specifically authorized by Taylor “so long as it may fairly be said that the jury lists or panels are representative of the community.” Taylor, supra, l.c. 538, 95 S.Ct. l.c. 701. The Supreme Court went on to hold: “. . .we impose no requirement that petit juries actually chosen must mirror the community and reflect various distinctive groups in the population.” Taylor, supra, at l.c. 538, 95 S.Ct. at l.c. 702.

During the month the defendant in Du-ren was summoned to trial, the female representation produced by the system was 29.5 per cent of all veniremen summoned and 15.5 per cent of those appearing. Here, as defendant notes in his brief, female representation on St. Louis County jury panels was 39 per cent. The effect of the exemption here was not to impermissibly create an all-male venire panel. Although it did not mirror the community, it can be fairly said that the system produced female representation on jury panels which was “representative of the community.”

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


author: SMITH, Judge.

text:
    Estelle WHITE, Appellant, v. The KROGER COMPANY, Respondent.
    No. 39380.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 5, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.
    Application to Transfer Denied Dec. 18, 1978.

      Raymond Howard, St. Louis, for appellant.
    Robert C. Ely, St. Louis, for respondent.
   SMITH, Judge.

Plaintiff appeals from a judgment of the trial court entered in accord with defendant’s motion for directed verdict at the conclusion of the evidence. After trial the jury had returned a verdict for plaintiff in the amount of $2,000. The sole issue before us is whether the evidence was sufficient to warrant submission to a jury. We agree with the trial court that it was not.

Plaintiff, 87 at the time of the accident, slipped and fell while shopping in defendant’s store. Her testimony was that she was heading for the meat department after selecting all of her other purchases. There was a large “truck” or dolly in the area, used by the store to replenish supplies. Some employees were or had been (which is unclear) unloading chickens into the meat department and in the area where this activity had occurred or was occurring there was some water on the floor. Plaintiff had not reached this area nor the area in which the truck was located when she slipped on something and fell. After falling she noticed an “oily substance” on the floor and noticed that when she looked at the oil on her black coat “it was dirty.”

The liability of a store owner in cases such as this is based upon his superior knowledge of a defective condition on his premises. His liability requires that he have notice of the defective condition, either actual or constructive. If an agent of the owner is responsible for placing the defective condition in an aisle, then the owner is deemed to have actual notice of the condition. If not, then his liability arises if the evidence establishes that the defect has existed for a sufficient length of time to constitute constructive knowledge, in other words, that the store owner should have known of the condition. Ward v. Temple Stephens Company, 418 S.W.2d 934 (Mo. 1967) [2-5].

Plaintiff’s evidence and submitted theory was that she slipped on an oily substance. There is no evidence to establish how the substance got on the floor or when it got there. In such a situation the evidence and the inferences therefrom are insufficient to establish either actual or constructive knowledge of the store owner. Nor do we find that plaintiff’s testimony that “it” (either her coat or the oil) was dirty brings the case within the ambit of Ryan v. Standard Oil Co. of Indiana, 144 S.W.2d 170 (Mo.App. 1940), and warrants a finding that the oil had been on the floor for a lengthy period of time. There is a great factual difference between a spot of oil on a floor being dirty and a large amount of ice and snow being encrusted with grease and dirt. In the latter case, it is reasonable to infer that encrustation occurred after the snow landed and over a substantial period to time. Such an inference is not reasonable under the facts here. The court properly sustained defendant’s motion for judgment.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, Jr., concur.


text:
    Bradley BRAWNER, a minor, by Maurice E. Brawner, his father and n/f, Appellant, v. LIBERTY INDUSTRIES, INC., et al., Respondents.
    No. 38904.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 5, 1978.

      King, Yusman & Buechner, Joseph L. Racine, St. Louis, for appellant.
    Joseph M. Kortenhof, William S. Daniel, St. Louis, for respondents.
   SMITH, Judge.

Plaintiff appeals the order of the trial court dismissing with prejudice his suit against defendants brought under a theory ■of strict liability in tort. We affirm.

Plaintiff is seven years old and was burned when he and Ray Middleton, Jr., also seven years old, removed the lid from a gasoline storage container and the gasoline ignited. The gasoline container was manufactured by defendant Liberty Industries, Inc., and purchased by Ray Middleton (presumably the younger Middleton boy’s father) from defendant National Food Stores, Inc. and its store manager defendant Ippel-lito. The allegation upon which plaintiff sought to invoke the strict liability doctrine was:

“That the failure of said gasoline storage container to be equipped with an opening device which would render same to unable to be opened by a child of seven years constitutes a defect in design and an unreasonably dangerous condition of said gasoline storage container.”

In Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362 (Mo.1969), Missouri adopted the theory of strict liability in tort set forth in Restatement of Torts 2d, Sec. 402 A as follows:

“One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer or to his property, . . ..”

In Missouri a defect in design can meet the requirement of “defective condition”. See Keener, supra; Higgins v. Paul Hardeman, Inc., 457 S.W.2d 943 (Mo.App. 1970).

Under Comments to Sec. 402 A para, (g), we find that a defective condition is a “condition not contemplated by the ultimate consumer which will be unreasonably dangerous to him.” Paragraph (i) of the Comments states that “Unreasonably dangerous” means “The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” A gasoline container which does not have a child-proof spout does not meet the definition of either defective or unreasonably dangerous. A manufacturer is not an insurer nor must he create a product which is accident proof. See Royal v. Black and Decker Manufacturing Co., 205 So.2d 307 (Fla.App.1968); Vincer v. Esther Williams All-Aluminum Swimming Pool, 69 Wis.2d 326, 230 N.W.2d 794 (1975); Bellotte v. Zayre Corp., 116 N.H. 52, 352 A.2d 723 (1976). We have found no ease, nor have we been cited to one, where a product made for adult use is deemed defective and unreasonably dangerous solely because it has not been made child-proof. The trial court correctly dismissed plaintiff’s petition.

Plaintiff objects to the trial court’s failure to allow plaintiff an opportunity to amend. Initially, the record does not indicate plaintiff ever requested such an opportunity. Secondly, plaintiff has not indicated what amendment he would or could make to state a cause of action.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


text:
    Jessie L. BRADLEY, Plaintiff-Respondent, v. Mary Lee BRADLEY, Defendant-Appellant.
    No. 39567.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 5, 1978.

      Wilson Gray, St. Louis, for defendant-appellant.
    Daniel P. Reardon, Jr., St. Louis, for plaintiff-respondent.
    Thomas, Bussee, Goodwin, Cullen & Cloo-ney, St. Louis, for Heritage Ins. Co.
   SMITH, Judge.

Defendant, Mary Bradley, appeals from the action of the trial court in sustaining a motion for summary judgment in favor of plaintiff Jessie Bradley, administratrix of the estate of Oscar L. Bradley, and entering judgment against defendant and in favor of plaintiff.

Plaintiff brought the action to recover proceeds from a policy of life insurance on the life of Oscar L. Bradley issued by American Heritage Insurance Company. The petition alleged that plaintiff was the admin-istratrix of the estate of Oscar; that Mary was the wife of Oscar and the named beneficiary of the policy on Oscar’s life; that Oscar died as a result of gunshot wounds inflicted by Mary; that Mary was convicted of the murder of Oscar; that Mary was not as a matter of law entitled to the proceeds of the policy. American Heritage answered by admitting all the allegations of plaintiff’s petition and filed a counterclaim and cross-claim for interpleader; American Heritage paid the proceeds into court and was discharged.

Mary filed a motion to dismiss Jessie’s petition for failure to state a cause of action. She also filed an answer to American Heritage’s cross-claim in interpleader in which she admitted she was the named beneficiary and that she and Jessie had made claims against the insurance company. By cross-claim against Jessie, Mary sought payment of the insurance proceeds as named beneficiary. She alleged that Oscar died from gunshot wounds. Jessie then filed a motion for summary judgment. The court, following the granting of Mary's petition for change of judge, denied her motion to dismiss plaintiff’s petition, dismissed Mary’s cross-claim, and granted plaintiff’s motion for summary judgment. The record does not support the action of the court.

It is to be noted that Mary never filed an answer in the cause because her motion to dismiss was not ruled on until the time the court granted the motion for summary judgment. We find no allegations or admissions by Mary that she was convicted of or pled guilty to the murder of her husband. Nor, does the record indicate that the trial court had before it evidence of such a conviction or even that it took judicial notice of such a conviction. Under either circumstance, the record should so reflect. Plaintiff’s motion for summary judgment contains no affidavit of such fact nor is the motion itself verified. The motion does not prove itself. The answer of the insurance company admitting that Mary murdered her husband is not binding on Mary. There is simply nothing in the record in the trial court upon which to make a determination that Oscar was murdered by Mary. That is the fact foundation upon which plaintiff’s case depends.

The parties have discussed at length in this court the impact of evidence that Mary was convicted of second degree murder. We find there is no such evidence. We presume the failure to introduce the necessary documentary evidence to support the summary judgment was an oversight. In an effort to preclude another appeal, we summarize briefly our conclusions on the merits.

If Mary is guilty of the intentional killing of the insured without legal excuse or justification, she is not entitled to benefit from her wrong and is not entitled to the insurance proceeds. In re Estate of Laspy, 409 S.W.2d 725 (Mo.App.1966); Wells v. Harris, 414 S.W.2d 343 (Mo.App.1967); Wells v. Harris, 434 S.W.2d 783 (Mo.App.1968). Murder in either the first or second degree is an intentional killing without legal excuse or justification. Manslaughter may or may not be an intentional killing and if the requisite mental element of intent is missing and the killing is based upon non-intentional culpable negligence, such a conviction would not necessarily bar recovery of the insurance proceeds. Wells v. Harris, supra, 414 S.W.2d [4]. The judgment of conviction of second degree murder alleged in the motion for summary judgment if established would be conclusive of the facts adjudicated and would be conclusive evidence that Mary intentionally and without legal excuse or justification killed her husband and would not be subject to collateral attack in this litigation. State v. Laspy, supra. Our reversal here is based upon the inadequacy of the record made below and is not a holding that the trial court is precluded from entering a summary judgment if a proper record establishes the absence of any genuine issue of fact. See Wells v. Harris, supra, 434 S.W.2d 783.

Judgment reversed and cause remanded for further proceedings.

CLEMENS, P. J., and McMILLIAN, J., concur.

      . This motion was based upon an allegation that the assigned trial judge had previously presided in the division where Mary’s criminal case was disposed of.

      . We note also in passing that the record does not establish that plaintiff is in fact administra-trix and that no contingent beneficiaries are specified in the policy.


author: CRIST, Judge.

text:
    Harry BURNETT, Appellant, v. STATE of Missouri, Respondent.
    No. 39799.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 12, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 1978.
    Application to Transfer Denied Dec. 18, 1978.

      Huck & Hasten, James W. Huck, Thomas C. Mummert, III, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, J. Michael Davis, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CRIST, Judge.

Defendant appeals from denial of his Rule 27.26 motion.

He was convicted by a jury of first degree burglary by forcibly burglarizing an occupied dwelling on October 29,1975. His conviction was affirmed on appeal in State v. Burnette, 549 S.W.2d 352 (Mo.App.1977).

On September 14, 1977 defendant filed a Rule 27.26 motion alleging as grounds therefor (1) newly discovered evidence in the form of witnesses which he was unable to locate and was forced to trial by the trial court without them, and (2) ineffective assistance of counsel in that counsel was forced to trial by the trial court before counsel could find two alibi witnesses.

The court records show that the original information was filed on December 19, 1974, and the trial was started October 28, 1975. On April 14, 1975 defendant was granted a continuance on the ground that his witnesses were presently unavailable. He made no other request for continuance.

On October 12, 1977, the trial court denied defendant’s Rule 27.26 motion without an evidentiary hearing from which order defendant takes issue.

In order to be entitled to an eviden-tiary hearing on a Rule 27.26 motion a defendant must: (1) Allege facts, as opposed to conclusions, warranting relief, (2) raise matters not refuted by the files and records in the case and (3) show the matters complained of resulted in prejudice to the defendant. Grant v. State, 561 S.W.2d 739 (Mo.App.1978).

Defendant’s complaints in his Rule 27.26 motion are really one and the same, that is, he was unable to present two alibi witnesses by reason of action of the trial court. He states he (1) “was unable to locate them because the Court forced mov-ant to trial while movant was still searching for them,” and (2) “Movant was deprived of effective assistance of counsel . . ., in that, counsel was forced to trial in this case by the Court before counsel could adequately seek out two important witnesses who could have proven that movant was nowhere around . . ..” He does not state that his counsel had done anything wrong. The trial court was solely to blame, according to his motion.

Accordingly, his Rule 27.26 motion does not allege facts warranting relief. Neither newly discovered evidence nor mere trial error constitute grounds for relief. Hatfield v. State, 529 S.W.2d 180 (Mo.App.1975). Rule 27.26(b)(3).

We conclude from his Rule 27.26 motion, the files, records and transcript that the judgment should be affirmed.

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


author: CLEMENS, Presiding Judge. McMILLIAN, Judge,

text:
    In the Matter of B. J. K. and F. K., Petitioners-Appellants.
    No. 39990.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 12, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 15, 1978.
    Application to Transfer Denied Dec. 18, 1978.
    Deborah H. Weinstein, Clayton, for petitioners-appellants.
    Barksdale, Adams & Chorlins, Bradford L. Stevens, Clayton, for respondent.
   CLEMENS, Presiding Judge.

Petitioning maternal grandparents appeal from denial of their petition for transfer of custody and adoption. We affirm.

In August, 1977 petitioners filed a two-count petition seeking transfer of custody and adoption of their twin five-year old maternal grandchildren. Incorporated by reference were certified copies of the court's prior orders terminating the parental rights of the children’s father and their mother, petitioners’ daughter, now divorced from the father.

In July, 1977 the court had found the father and mother had wilfully neglected the twins for one year, terminated parental rights, and ordered custody transferred to an agency “for foster care and placement in the best available adoptive home.”

In December, 1977 a hearing was held on the petitioners’ motion to transfer custody. Evidence showed the children had been placed in foster care in October, 1975 by their mother. She had acted on the advice of her psychiatrist, who recommended foster care for the children’s safety. At the mother’s request the agency allowed petitioners to visit their grandchildren at the foster parents’ home. When the parental rights were terminated the following year these visits were discontinued.

Further evidence on petitioners’ motion for custody showed: They have been married 32 years. In addition to their 31-year-old daughter they have a 26-year-old married son. The grandmother is 54 years old, has an eighth-grade education, and earns $250 a week as an office supervisor; she was eligible for retirement in eighteen months. She had a two-week annual vacation which she would take if the children were placed with her and the grandfather. She had obtained the names of prospective baby sitters available to care for the children. The grandfather is 57 years old, has a tenth-grade education and earns $327 weekly as a warehouseman. He has family medical insurance. Both petitioners have recently had physical examinations and are in good health. They actively enjoy bowling, dancing, camping and fishing. The testimony and favorable home investigation study of a social worker was in evidence.

Evidence was introduced by the director and a caseworker of the agency which for two years had supervised the children’s foster home. It was their opinion the children were emotionally ready for adoption and that other suitable adoptive family homes were available. The court opined that the children’s best interests would be served by placement in an adoptive home other than that of the petitioners.

At the conclusion of the hearing, the court found it was “not in the best interests of [the children] that the petitioners be granted custody for the purpose of adoption,” and continued in effect its 1977 order of custody.

Petitioners contend on appeal the court’s finding that transfer of custody to them was not in the best interests of the children was not supported by substantial evidence.

The trial court had to decide what was in the children’s best interests and in this crucial decision it had a broad discretion. In Re Neusche, 398 S.W.2d 453 [4] (Mo.App.1965). We indulge in the presumption that in an adoption proceeding the lower court’s decision was motivated by what it believed was best for the children. In The Adoption of Ann, 461 S.W.2d 338 [1, 2] (Mo.App.1970). The judge of a juvenile court has an advantage over this court because he can assess the demeanor and character of parties, traits not discernible to us from a printed record. Because of the lower court’s superior vantage point, a reviewing court grants greater deference to his determination when the custody of minor children is involved than in other cases. In Re Neusche, supra. We have reviewed the evidence and find the court’s decision was supported by the evidence.

While the evidence establishes that petitioners could give the children a good home, the court’s duty is to provide the best available home. The mere fact petitioners were financially able, morally fit, physically capable, and able to furnish a home for the children “is not the end of the matter.” State ex rel. St. Louis Children’s Aid Soc. v. Hughes, 352 Mo. 384, 177 S.W.2d 474 [5, 6] (1944); In Re Neusche, supra, at 458.

The lower court expressed concern about the relationship between the petitioners and their daughter and about possible confrontation between her and the children. The grandfather testified the daughter did not frequently visit petitioners and their relationship was not close, but he admitted she was still part of their family and would “get what she asked” from petitioners. His statements pinpoint the realities. Petitioners are not estranged from their daughter. At the time of the hearing she was seeking to regain custody of an older child. Because the termination of the mother’s parental rights was involuntary and occurred during a period of her emotional upheaval, it is not unlikely that she may seek contact with the twins or to regain their custody at a time when she believes stability has returned to her life. “The future welfare of the children is extremely important,” Brooks v. Division of Children’s Services, 411 S.W.2d 276 [1-5] (Mo.App.1967), and the likelihood of confrontation between the mother and the children is not mere speculation. The court must “peer into the future, to make a projection based upon the facts then before it.” See In Re K. W. S., 370 S.W.2d 698 [6] (Mo.App.1963) where the petitioners seeking to adopt merely knew identities of natural parents and paternal grandparents. Here, the evidence justifies the lower court’s concern about prospective confrontation.

Another problem here appears from the testimony of two social workers. One stated the children would accept anyone with whom they were placed as their mother and father. One testified the twins continually asked who their mother and father were and, at one time, the children considered anyone with whom they stayed as mother and father. Here, the problem of role identity is acute. The twins respond to petitioners as grandchildren do to grandparents. By the legal device of adoption, petitioners would become their parents. It is difficult to imagine that children nearly six years old would understand the role change of petitioners from grandparents to parents. A further complication arises from the looming shadow of their mother contacting them. The confusion that might result for the children as to the petitioners’ dual role as grandparents and parents was noted in In Re D _, 408 S.W.2d 361 [7, 8] (Mo.App.1966).

Finally, our courts have repeatedly said that “young children should, when possible, be cared for by individuals who are in good health and of such age as those who normally bear children.” In The Adoption of Ann, supra, citing In Re Adoption of K, 417 S.W.2d 702 [16, 17] (Mo.App.1967). While petitioners’ middle-age does not automatically disqualify them, the court could well consider the effect of petitioners’ ages on their ability to provide the best home for the twins during the remaining years of their infancy. We conclude the trial court did not err.

As their second point, petitioners challenge denial of a new trial based on newly discovered evidence, an affidavit by petitioners’ counsel showing the twins’ satisfactory school performance. The grant of a new trial on the basis of newly discovered evidence under V.A.M.R. 78.01 rests largely in the sound discretion of the trial court. The “new evidence” is not so material that it would likely produce a different result. The court did not abuse its discretion in denying a new trial.

Judgment affirmed.

SMITH, J., concurs.

McMILLIAN, J., dissents in separate opinion.

McMILLIAN, Judge,

dissenting.

I respectfully dissent because I believe the trial court’s denial of appellants’ petition for the transfer of custody and adoption is against the weight of the evidence.

The major considerations identified by the majority as reasons for affirming the decision of the trial court are: the relationship of appellants with the twin’s mother, the children’s confusion as to whom their parents are, and the age of appellants. While these circumstances mitigate somewhat against appellants, I do not believe they outweigh those many characteristics which render appellants well-qualified to adopt the twins.

The first concern expressed by the majority as a reason to deny appellants’ petition was the possibility of a confrontation between their daughter, S_ and the twins. While such a confrontation is always possible, it does not seem equitable to deny appellants’ petition on this basis. Appellants do not see their daughter regularly. Since S_was initially married, she has visited appellants for a weekend at the longest. Since she moved to Arkansas where she presently resides, S_ has seen appellants only when she was in town for judicial proceedings. At these times appellants made special arrangements to meet S_ so as to avoid a meeting between her and the twins. There is no reason to believe appellants would not continue this conscientious practice. Furthermore, it seems inequitable to assume that the risk that S_will see the children again is unique to appellants. If S_is determined to maintain contact with the children, it is not unlikely that she will attempt to do so, wherever the children are placed for adoption.

The majority also expressed concern that because her parental rights had been terminated involuntarily, S_may try to set aside the termination and seek custody of the children, a process which would be facilitated if the children are placed with her parents. This speculation ignores, however, the evidence before the court of appellants’ concern for the children as compared with their fairly distant relationship with S-It also ignores their intention, as demonstrated by past behavior, to prevent S- from infringing upon the stable home they will provide for the twins.

The second consideration the majority believed determinative was the twin’s confusion, as interpreted by the social workers, as to whom their parents were. The majority argues that it would only compound their confusion to legally transform the petitioners’ role from that of grandparents to parents. I cannot agree that this is a reason to deny appellants’ petition. First, it is not equitable to place the full burden of the children’s confusion on appellants. Any family which adopts the twins would have to deal with this problem. Secondly, placing the children with yet another family, where they no longer see appellants who have visited them, kept them for weekends, and sent them presents and correspondence for the past two and one-half years, practically all of their five year-old memory, is just as confusing.

The last major consideration which the majority identified as supporting the trial court’s decision was the age of the petitioners. The majority reasons that the trial court’s conclusion could well have been influenced by the effect of the petitioners’ ages or their ability to provide the best home for the twins in “the remaining years of their infancy.” While this would be a problem for most middle-aged couples, the record reveals that the K_s are not a “normal” couple. They fully intend to encourage the twins to go to college, just as they encouraged their son, and they will receive pension payments of sufficient size to raise the children through teenage and college years. Appellants have just had medical examinations and are in excellent physical condition. As stated by the majority, they lead active lives. And, in the unlikely event that something happens to the appellants, they have already discussed arrangements with their son and his wife, who have agreed to care for the children in such an event.

While I agree with the majority that all of the above factors detract from the petitioners’ qualifications as parents, I disagree with the majority that they outweigh the many other factors, as discussed below, which show the petitioners to be excellent candidates for adoptive parents.

In addition to the evidence about the petitioners’ health and lifestyle discussed above and in the majority opinion, the record also discloses the following concerning the petitioners’ relationship with and concern for the children. When the children were first placed in a foster home, the petitioners did not seek custody because they were not aware that they could do so until parental rights were terminated and because their mother suggested that the children not be placed with appellants because she (the mother) was capable of physically abusing them should she encounter them. Within one week of the termination of parental rights, however, appellants filed their petition for custody. For the two and one-half years the children were with the foster family appellants brought the twins to their home frequently for weekends and bought them numerous presents such as new bicycles, clothes and toys. At every holiday the petitioners sent the children holiday cards with money inside to take their foster family out to dinner. At the hearing in December, 1977, appellants had already purchased Christmas presents for the children, all the while not knowing the outcome of the lawsuit. Perhaps the ultimate indication of the petitioners’ concern is the institution of this suit with its concomitant legal fees and anguish, and their willingness to severely alter their lifestyle to adopt these children.

The petitioners are well-qualified financially to care for the children. They own a three-bedroom home which has a backyard in which the children could play. They have a combined annual income of approximately $28,000 with full medical coverage for the entire family. While Mrs. K-presently works, she is scheduled for retirement within ten months. Because the children begin school this fall, they would need to be cared for by a baby-sitter only forty-five minutes per day, before Mrs. K-gets home from work. Mrs. K-has already advertised in the newspaper for a sitter and has received six applications. A social worker for the State of Illinois investigated this case, paying particular attention to the concerns expressed by the Missouri Division of Family Services, i. e., appellants’ age and the potential interference of the natural mother. After her investigation, the social worker gave a very favorable recommendation for appellants to adopt their grandchildren.

Admittedly, there are some countervailing factors to be considered in determining whether the interest of the children is best served by placing them with appellants but I believe the trial court and the majority have overemphasized these factors and ignored the more important, albeit intangible, factors of love and concern which appellants have aptly demonstrated for the children. By the majority’s decision, appellants not only lose the opportunity to adopt, but also the chance of ever seeing their grandchildren again. Moreover, there is no evidence before the court as to the qualifications of the alternative adoptive family. To presume without any knowledge whatsoever that the twins will be better cared for by this anonymous family rather than by their grandparents who undoubtedly cherish them, is unfair to appellants, and more importantly, unfair to the children.

For the foregoing reasons, I would reverse and remand and instruct the trial court to enter an order consonant with this opinion.


author: TITUS, Judge.

text:
    Bennie D. WYATT and Beverly Wyatt, Plaintiffs-Respondents, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Defendant-Appellant.
    No. 10228.
    Missouri Court of Appeals, Springfield District.
    Sept. 25, 1978.
    Motion of Respondents for Rehearing or in the alternative for Transfer to the Court en banc, or in the alternative for Transfer to the Supreme Court of Missouri Denied and Application for Transfer Denied Oct. 19, 1978.
    Application to Transfer Denied Dec. 18, 1978.

      Arch M. Skelton, Michael A. Jones, Springfield, for plaintiffs-respondents.

      James E. Taylor, J. Curtis Nettels, Kansas City, Glenn A. Burkart, Richard E. Dorr, Mann, Walter, Burkart, Weathers & Warden, Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

Taxi driver Bennie Wyatt was awarded $70,000 damages by a Greene County jury for injuries he received near 9 a. m. July 2, 1972, when he fell on defendant’s sidewalk. The jury also awarded Bennie's wife $10,-000 for her derivative claim. Defendant has appealed and the interested may read the first appellate installment hereof in Wyatt v. Southwestern Bell Telephone Company, 514 S.W.2d 366 (Mo.App.1974).

Defendant’s building and premises on South Fremont Avenue in Springfield are situate on the east side of the north-south thoroughfare. A private sidewalk' east of the street lies immediately adjacent to the west side of the building and extends from a south parking area northward to west entrances into the structure. The six-foot-wide sidewalk consists of two concrete slabs divided by a narrow asphalt-type-filled expansion joint. The southern slab of the sidewalk is 13 feet long and terminates near the entranceways into the building. Pictorial exhibits show that only 5½ bricks on the west side of the building exist south of the expansion joint. By taking note of the fact that ordinary bricks are 8 inches long (State v. Perry, 226 N.C. 530, 39 S.E.2d 460, 464 (1946); 11 C.J.S. Brick, p. 878; Webster’s New Collegiate Dictionary, “brick”, p. 137), it is calculated that at the time of the fall the north 3 feet 8 inches of the south slab was in shadow, whereas the south 9 feet 4 inches thereof was in bright sunlight as described by Bennie.

On the cloudless morning of the accident, Bennie had been dispatched to obtain a large envelope at defendant’s offices on St. Louis Street for delivery to its offices on South Fremont. Upon arrival at the Fremont premises, Bennie departed the taxi with the envelope in his left hand and walked northward on the sidewalk. His path was in the center of the east half so that the right side of his body was “probably six to eight inches” west of the west wall of the building. As Bennie neared the entrances, he lifted “the envelope trying to look at it” to ascertain its delivery point inside the building. At that moment his right foot “hit something real hard” causing him to stumble and fall forward and to his right “up in front of the door.”

After falling, Bennie ascertained the accident was produced by the (unmeasured) fact that the east side of the south slab was “around two inches” lower than that of the adjoining slab to the north. A defendant’s employee, in charge of maintenance and repairs of defendant’s premises, noticed a settling of the south slab about three months prior to Bennie’s fall. Without having measured the settling, and without indicating to what part of the sidewalk he referred, defendant’s employee opined the difference “was about three quarters of an inch.” A photographer who took photographs and made measurements at the scene four months after the fall, said the difference in elevation between the north and south slabs at the east edge of the sidewalk measured 1%6 inches and that there was “no differentiation between the [level of] the two” slabs at the west side of the walk. We are aware of the general rule that actual measurements usually control over mere estimates. Black v. Kansas City Southern Railway Co., 436 S.W.2d 19, 28[1C] (Mo. banc 1968); Luettecke v. City of St. Louis, 346 Mo. 168, 173[1], 140 S.W.2d 45, 47[1] (1940). Therefore, we proceed upon the assumption the difference was as measured by the photographer.

Defendant’s first point relied on, in essence, is that the difference between the two sidewalk slabs was so minimal that it cannot be held to have been negligent as a matter of law.

Plaintiffs and defendant agree that defendant’s duty was to maintain its sidewalk in a reasonably safe condition. Because the duty of a municipal corporation is the same with respect to its public sidewalks [Hart v. City of Butler, 393 S.W.2d 568, 582[24] (Mo.1965)], each side herein has cited and relied on reported cases involving city sidewalk litigation. As a result, both have become immersed in the measured sidewalk game wherein the players, as most reported opinions attest, attempt to adjudge liability vel non via level differences calculated in inches and fractions thereof. However, respectable precedent cautions that the questions of negligence in this type of case should not be resolved by the measuring stick but rather upon the rule of actionable negligence, which is generally regarded as being the failure of one, for the protection of another, to observe ordinary care, vigilance and precaution which the circumstances justly demand to the injury and damage of another. Seitter v. City of St. Joseph, 358 S.W.2d 263, 268 (Mo.App.1962); Butler v. City of University City, 167 S.W.2d 442, 445-446 (Mo.App.1943); Lithegner v. City of St. Louis, 125 S.W.2d 925, 934-935 (Mo.App.1939); 65 C.J.S. Negligence § 1(2), pp. 433-440. Although the degree of care required of a city to keep its sidewalks in a reasonably safe condition is not affected by the quantum of walkways nor the size of the municipality [Kanter v. Kansas City, Missouri, 336 S.W.2d 387, 388 (Mo.1960); Barr v. Kansas City, 105 Mo. 550, 561, 16 S.W. 483, 486[6] (1891)], the location and character of the way, as well as the kind of traffic it bears, should be considered in determining the degree of care required. Larrea v. Ozark Water Ski Thrill Show, Inc., 562 S.W.2d 790, 793[4] (Mo.App.1978); 63 C.J.S. Municipal Corporations § 803, at p. 122. Likewise, the care expected of a municipality to keep miles of sidewalks in a reasonably safe condition most certainly varies in degree to the care expected of a possessor to keep a 13-foot sidewalk in a reasonably safe condition.

It has many times been observed that the amount of a depression or elevation existing in a sidewalk is not the lone factor to be considered in deciding whether there was or was not actionable negligence. In this case the sidewalk was located on property where good walkways could reasonably be expected. The expansion joint where the defect existed was filled with a dark asphalt substance which could have served to disguise the defect to the cursory eye. The south 9 feet 4 inches (approximately) of the slab was bathed in bright sunlight, whereas a pedestrian’s last two steps (approximately) to reach the defect would have transported him from sunlight into shadow. The defect was at or within a step or so of the en-tranceways into the building and at a place where one could normally be expected to be looking at the doorways in preparation of gaining entrance into the structure. Was the defect, colored in black and cast in shadow, plainly visible or somewhat obscured? Was the defect, in relation to the entranceways, something that people should be observing with unerring concentration, or was it a defect, under all the existing circumstances, that could reasonably have been overlooked? Fischer v. Kansas City, 446 S.W.2d 451, 454[2] (Mo.App.1969). In our opinion the evidence does not show absence of actionable negligence as a matter of law. It is our belief the issue was one for the jury and that it was not error for the trial court to refuse direction of a verdict for the defendant.

Defendant’s second point relied on complains of the refusal of the trial court to give its proffered instruction regarding Bennie’s pleaded contributory negligence for failure to keep a careful lookout.

The two verdict directing instructions given for plaintiffs (with the bracketed portions showing the differences in the wife’s charge) read: “Your verdict must be for plaintiff Bennie Wyatt [Beverly Wyatt] if you believe: First, there was a defect in the sidewalk in front of defendant’s building, and as a result the sidewalk was not reasonably safe for business invitees, and Second, plaintiff Bennie Wyatt did not know and by using ordinary care could not have known of this condition, and Third, defendant knew or by using ordinary care could have known of this condition, and Fourth, defendant failed to use ordinary care to remedy it or warn of it, and Fifth, as a direct result of such failure, plaintiff Bennie Wyatt was injured [and as a direct result of such injury plaintiff Beverly Wyatt sustained damage]. MAI 22.03 Modified.”

The refused instruction tendered by defendant reads: “Your verdict must be for the defendant . . as to the claims for damages of plaintiffs ... if you believe: First, plaintiff Bennie D. Wyatt failed to keep a careful lookout; and Second, plaintiff Bennie D. Wyatt was thereby negligent; and Third, such negligence of said plaintiff directly caused or directly contributed to cause any damage plaintiffs may have sustained. The term ‘negligence’ as used in this instruction means the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances. MAI 32.01, 11.02, 35.01(2) Modified.”

In deciding the propriety of refusing the foregoing instruction offered by defendant, we bear in mind that the evidence is to be considered in the light most favorable to defendant. Rickman v. Sauerwein, 470 S.W.2d 487, 489[1] (Mo.1971). While Bennie’s testimony was a self-serving attestation of a careful lookout on his part, a jury has leave to believe all, part or none of the testimony of any witness and may accept or reject it in whole or in part as it finds it to be true or false when considered in relation to the other testimony, facts and circumstances. Robertson v. Grotheer, 521 S.W.2d 452, 457[5] (Mo.App.1975). Also, if the evidence supports it, a defendant has the right to an instruction affirmatively based upon its theory that plaintiff failed to keep a careful lookout. Moore v. Parks, 458 S.W.2d 344, 349[9] (Mo.1970).

Without a recasting of the entire evidence, it seems clear that whether Bennie was maintaining a careful lookout was a matter concerning which reasonable minds could differ as attested by the unanimous jury verdict for defendant in the first trial of this case. Wyatt v. Southwestern Bell Telephone Company, supra, 514 S.W.2d 366. Whether Bennie, under the existing circumstances and facts, by maintaining a careful lookout could have seen and avoided the sidewalk defect in his short walk of 13 feet in reaching it was an issue for the jury to decide. Also, whether Bennie’s having looked at the envelope and thus obliterated his vision of the sidewalk rendered him negligent by reason of a failure to keep a careful lookout, was likewise for jury determination.

Provided the subject is not fittingly, completely and properly covered by other instructions given for plaintiff or defendant, a defendant has the right to have its defense fully, clearly and affirmatively presented to the jury in an instruction of the court. Northam v. United Rys. Co. of St. Louis, 176 S.W. 227, 229 (Mo.1915); Derr v. St. Louis Public Service Company, 399 S.W.2d 241, 242[1] (Mo.App.1966); Anderson v. Welty, 334 S.W.2d 132, 139[14] (Mo.App.1960) and cases cited in n. 11; Shaw v. East St. Louis Ry. Co., 55 S.W.2d 497-498[1] (Mo.App.1932). Although plaintiffs’ instructions in this case referred to the matter that Bennie did not know or by the use of ordinary care could not have known of a defect in the sidewalk, this did not squarely and clearly submit to the jury defendant’s theory that Bennie failed to keep a careful lookout [Da Pron v. Neu, 43 S.W.2d 915, 917[4] (Mo.App.1931); Sullivan v. Chauvenet, 186 S.W. 1090, 1093[4] (Mo.App.1916); Derrington v. City of Poplar Bluff, 186 S.W. 561, 563-564[5] (Mo.App.1916); Stephens v. City of El Dorado Springs, 185 Mo.App. 464, 471, 171 S.W. 657, 660[6] (1914)]; and the refusal of defendant’s instruction was reversible error. Harris v. Terminal R. Ass’n of St. Louis, 203 Mo.App. 324, 333-334, 218 S.W. 686, 688[7] (1920).

The judgment nisi is reversed and the cause remanded for a new trial.

All concur.

      . The form of defendant’s offered but refused instruction is not questioned. See: Helfrick v. Taylor, 440 S.W.2d 940, 943-944[4] (Mo.1969) and Shackman v. Lincoln Property Co., 556 S.W.2d 50, 52-53 (Mo.App.1977), tenant versus landlord; Rickman v. Sauerwein, 470 S.W.2d 487, 489-490[3-4] (Mo.1971), pedestrian versus motorist; Fehlbaum v. Newhouse Broadcasting Corporation, 483 S.W.2d 664, 666[4] (Mo.App.1972) and Demko v. H&H Investment Company, 527 S.W.2d 382, 388, n. 4 (Mo.App.1975), fall by business invitee.


author: STEPHAN, Judge.

text:
    STATE of Missouri ex rel. NORTHWEST ARKANSAS PRODUCE COMPANY, INC., a corporation, and James Neil Harshman, Relators, v. The Honorable Carl R. GAERTNER, Judge of the Circuit Court of the City of St. Louis, State of Missouri, Respondent.
    No. 39985.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 26, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 1978.
    Application to Transfer Denied Dec. 18, 1978.

      Sam P. Rynearson, Gerre S. Langton, Evans & Dixon, St. Louis, for relators.
    James E. Hullverson, Stephen H. Ring-kamp, Hullverson, Hullverson & Frank, Inc., St. Louis, for respondent.
   STEPHAN, Judge.

This is an original proceeding instituted by the filing of a petition for a writ of prohibition praying that this court command the Honorable Carl R. Gaertner, Judge of the Circuit Court of the City of St. Louis, to dismiss and to refrain from proceeding further in a certain action pending before him. Because of the nature of the relief sought, an alternative writ of mandamus was issued. Nevertheless, the matter was briefed and argued as a proceeding in prohibition; and, as a result of our study of the briefs and deliberations, we believe such procedure was correct. We now take the matter as one in prohibition and issue a permanent writ, as hereinafter provided.

The underlying cause of action is one for damages brought by Jo Anna Brown (plaintiff) against relators Northwest Arkansas Produce Company and James Harshman. Plaintiff’s petition alleged that she was injured in Madison County, Missouri, through the negligent operation of Northwest’s truck by its employee, Harshman. None of the parties is a Missouri resident: plaintiff is an Arkansas resident; Northwest is an Arkansas corporation ; Harshman is a resident of Michigan. Service of process was accomplished on Northwest in Arkansas by registered mail, the papers originally having been served on the Secretary of State of Missouri as Northwest’s agent. Harshman was served by a pluries summons in a similar manner. Relators contend that such service was had pursuant to Missouri’s statutes relating specifically to actions against nonresident motorists (the Nonresident Motorist Act), §§ 506.200 et seq., RSMo 1969. Respondent contends that, although service was consistent with the provisions of that statute, it was equally consistent with Supreme Court Rules 54.08 and 54.15.

Relators argue that venue of the action properly lies in Madison County, where the accident occurred. In its present form, the venue provision of the Nonresident Motorist Act, § 506.290, provides that:

“Any suit under the provisions of sections 506.200 to 506.320 shall be filed in the county in which the cause of action accrues or in the county where the plaintiff resides, and if there be other defendants in such action who are residents of the state of Missouri, then such action shall be brought in any county in which any one of said defendants reside, or in the county within which the plaintiff resides and the defendant may be found.”

Thus, given the facts of the underlying case, if the plaintiff were restricted to asserting her cause of action under the provisions of §§ 506.200 et seq. venue would properly lie only where her cause of action accrued, i. e. Madison County. Respondent contends, however, that this section is not the exclusive venue provision in this situation because of § 506.280 which states that:

“The foregoing provisions relative to service of process in suits against nonresidents shall not be deemed to prevent actual personal service in this state upon a nonresident in the time, manner, form, or under the conditions provided for service on residents, and nothing contained in sections 506.200 to 506.320 shall be construed as in any manner limiting, affecting or repealing any cause of action, right, or method of procedure now provided by law, but the provisions of said sections are cumulative and in addition to any such existing right, remedy, cause of action, and method of procedure.”

Respondent argues that § 506.280 operates to permit the application of Missouri’s general venue provision, § 508.010. In pertinent part, that section provides that:

“Suits instituted by summons shall, except as otherwise provided by law, be brought: .
(4) When all the defendants are nonresidents of the state, suit may be brought in any county in this state; . . . ”

Both parties in ably written briefs urge upon this court numerous precepts of statutory construction, the object of all of which is to attempt to establish the probable intent of the General Assembly in the case of ambiguity within a statute or among different statutes. Although all of these principles are useful, we think the issue at hand is resolved by an examination of the legislative framework within which this case reposes.

Nonresident motorist statutes began to appear shortly after the automobile itself, survived many constitutional attacks, and came to be founded upon the legal fiction that by using the public roads a nonresident constructively consented to being sued in the foreign state. Missouri adopted a comprehensive act of this nature in 1941, L.1941, p. 435 et seq., which, as amended, appears in §§ 506.200 through 506.320, RSMo 1969. Jurisdiction of the courts of this state over nonresidents is triggered by an “agreement” articulated in § 506.210, which reads as follows:

“The use and operation of a motor vehicle or trailer in this state on the public highways thereof by a person who is a nonresident of this state shall be deemed:
(1) An agreement by him that he, his executor, administrator or other legal representative shall be subject to the jurisdiction of the courts of this state in all civil actions and proceedings brought against him, his executor, administrator or other legal representative by either a resident or a nonresident plaintiff, for damages to person or property, including actions for death, growing or arising out of such use and operation; and
(2) An appointment by such nonresident, his executor, administrator or other legal representative of the secretary of state of Missouri as his lawful attorney and agent upon whom may be served all process in suits pertaining to such actions and proceedings;
(3) An agreement by such nonresident that any process in any suit so served shall be of the same legal force and validity as if personally served in this state.”

As enacted in 1941, the venue provision of the Act read as follows:

“Any suit under the provisions of this act shall be filed in the County in which the cause of action accrues and if there be other defendants in such action who are residents of the State of Missouri, then such action shall be brought in any county in which any one of said defendants reside, or in the County within which the plaintiff resides and the defendant may be found.”

During the course of the Sixty-fifth General Assembly in 1949 a measure, Senate Bill 217, was introduced which would have altered the wording of the foregoing section so as to specifically provide “Any suit under the provisions of this act shall be filed in any county in this state . . . ” During the legislative process, Senate Bill 217 was amended to delete the reference to venue “in any county” so that the section reads substantially as it does now: “Any suit under the provisions of this act shall be filed in the county in which the cause of action accrues or in the county where the plaintiff resides . . . ” Such rejection of the concept of venue “in any county” is an unusually clear expression of legislative intent: the General Assembly in effect declared that venue of suits brought under §§ 506.200 through 506.320 shall, in the case of a nonresident plaintiff, be limited to the county where the cause of action accrued or the county of a resident defendant’s domicile.

It is argued on behalf of respondent that the service obtained here is equivalent to that contemplated by the general venue statute, § 508.010. In exploring that contention, we look first to whether plaintiff has a cause of action other than that contemplated by §§ 506.200 through 506.320.

As a result of judicial decisions which liberalized earlier views of due process requirements relating to extraterritorial in personam jurisdiction, many states have adopted “single act” long arm statutes which provide that certain conduct of a nonresident person or corporation subjects it to jurisdiction of the courts of the state where the conduct occurs or causes damage. Missouri did so in 1967. Senate Bill 130 of the Seventy-fourth Session of the General Assembly was composed of three sections: the first provided, as relevant here, that any person or corporation who individually or through an agent commits a tortious act within this state thereby submits such person or corporation “to the jurisdiction of the courts of this state as to any cause of action arising from” such tortious act, § 506.500; the second section provides the method for extraterritorial service of process, § 506.-510; and the third section authorizes a personal judgment “[w]hen jurisdiction over a person, firm, or corporation who is outside this state is acquired in accordance with the provisions of sections 506.500 and 506.510 ”. (Emphasis added.) The third section also provides for default judgments. § 506.520. Because of the significance of § 506.510 to the instant case, we set it forth verbatim:

“1. Service of process upon any person who is subject to the jurisdiction of the courts of this state, as provided in section 506.500, may be made by personally serving the process upon the defendant outside this state, or upon a corporation by serving the process upon a managing officer or any person or corporation who shall be designated as a registered agent by such corporation in any of the several states, and shall have the same force and effect as though the process had been served within this state.
2. The process, together with a copy of the petition, and necessary fees shall be sent to a court of record or court officer at the place where the defendant may be served with process, and may be personally served upon the defendant by the person authorized to serve process at that place.
3. An affidavit of the person serving the process shall be returned to the office of the clerk or judge from which it issued. The affidavit shall state the time, manner and place of service of the process and of the copy of the petition. The court may consider the affidavit, or any other competent evidence, in determining whether service has been properly made.”

Senate Bill 130 contained no provisions relating to venue of actions brought under it. Thus, under the general venue statute, § 508.010, since all defendants in the underlying action are nonresidents, this suit could be properly filed in the Circuit Court of the City of St. Louis.

As noted at the outset, however, service of process in the underlying case was had upon the defendants by registered mail after service upon the Secretary of State of Missouri. Respondent argues in effect that such service was sufficient to confer in personam jurisdiction under § 506.510. We disagree. Germanese v. Champlin, 540 S.W.2d 109, 111[1] (Mo.App.1976). Jurisdiction was not “acquired in accordance” with the provisions of § 506.510 which calls for personal service on the defendant obtained through a court of record or court officer authorized to serve process where the nonresident defendant is found. Nor is an unidentified post office employee who delivers the registered mailing from the Secretary of State “a person appointed by the court in which the action is pending”, as contemplated by Rule 54.14. Further reference to Supreme Court Rules reflects that, although Rule 54.08 specifically authorizes service of extraterritorial process in actions brought under the provisions of §§ 506.200 through 506.320 by either personal service as permitted by Rule 54.14 or by service on the Secretary of State followed by a certified or registered mailing to the nonresident defendant, Rule 54.15, no such authorization is found as to actions brought under § 506.500. The service obtained by plaintiff in the underlying action could support only an action based on the “implied consent” nonresident motorist statutes, §§ 506.200 through 506.320, venue of which is in the county where the cause of action accrued. It could not support an action brought under §§ 506.500 through 506.520. Put another way, in the present posture of this case, the Circuit Court of the City of St. Louis is without jurisdiction to enter a personal judgment against the rela-tors.

As was said in State ex rel. Craig v. Grimm, 542 S.W.2d 335, 337[2] (Mo.App.1976):

“Proper service of process (in this case, a summons) in the form and manner prescribed by law has ever been a prerequisite to a court’s acquiring jurisdiction of the person albeit has jurisdiction of the subject matter of the action and service of a defective or void summons is the equivalent to no service at all.” (Citations omitted.)

Similarly, in Ponder v. Aamco Automatic Transmission, Inc., 536 S.W.2d 888 (Mo.App.1976), the trial court’s order quashing service of process and staying execution of default judgments against a foreign corporation was affirmed where there had been defective service. The following quotations from that case are of particular significance here:

“The requirements for process and the manner of service are wholly as constituted by statute, and where not met, the court is without power to adjudicate.” Id. 890
* * * * * *
“Actual notice given in any manner other than as prescribed by the service statute is not sufficient. Due process of law as applied to proceedings which result in judgment means a notice directed by the statute itself and not one given in discretion or favor.” Id. 892-893
⅜ ⅝: * ⅜ ⅜ ⅜
“The plaintiff made no attempt to comply with the provisions for the commencement of an action under that statute [§ 506.510; Rule 54.06] by personal service of process outside the state, thus the judgments entered upon the counts of that petition were without the notice of statute and without force of law.” Id. 893

Prom the foregoing, it is clear that, although the respondent has subject matter jurisdiction of the underlying cause, the procedure followed to obtain service on the relators has not properly brought them before the trial court. Respondent has no jurisdiction over the persons of the relators in the case now pending before him. Accordingly, a writ of prohibition will issue and stand as absolute unless and until valid service of process may be obtained as provided in § 506.510 or Rule 54.06. State ex rel. Bartlett v. McQueen, 361 Mo. 1029, 238 S.W.2d 393,396[4] (banc 1951); State ex rel Bufford v. Dalton, 479 S.W.2d 204, 206 (Mo.App.1972).

Unless relators elect to enter their appearance voluntarily or the case is dismissed without prejudice and refiled in Madison County, relators’ argument concerning equal protection will in all likelihood be reasserted in the trial court. The argument is essentially two pronged: (a) Nonresident defendants are discriminated against by this state in that a plaintiff injured by the negligent act of a resident defendant may sue only where the defendant resides, where the plaintiff resides and the defendant can be found, or where the cause of action accrued. On the other hand, a nonresident defendant may be sued in any county, (b) Nonresident defendants are denied equal protection if the law is, as we hold it to be, that a plaintiff may elect to sue under the Nonresident Motorist Act, §§ 506.200 et seq., or under the “single act” long arm statutes, §§ 506.500 et seq., which by application of § 508.010 may permit the filing of suit “in any county”.

This court has noted that the requirements of venue are bottomed on the concept of convenience to litigants. State ex rel. Pagliara v. Stussie, 549 S.W.2d 900, 903 (Mo.App.1977), quoting from 77 Am. Jur.2d, Venue, § 1, p. 832. However, it is obvious that venue cannot always be laid in a setting which is equally convenient for all: multiple defendants, residents and nonresidents must be provided for in ways which, in some circumstances, are necessarily less convenient for some than others. Such variance in treatment does not, however, offend the equal protection requirements of the Constitutions of Missouri and of the United States unless it is arbitrary and fails to treat all who are similarly situated evenhandedly. State ex rel Collins v. Donelson, 557 S.W.2d 707, 711[5] (Mo.App.1977); State ex rel. Toedebusch Transfer, Inc. v. Public Service Commission, 520 S.W.2d 38, 46 (Mo. banc 1975). Nonresident defendants comprise a class based upon rational distinction, and to treat them differently from resident defendants with regard to venue in no way constitutes invidious discrimination rising to constitutional dimensions. “When all persons within the purview of a statute are subjected to like conditions, then they are afforded equal protection of the law.” State v. Day-Brite Lighting, Inc., 362 Mo. 299, 240 S.W.2d 886, 893 (Mo. banc 1951). There can be no doubt that all persons against whom a cause of action is asserted under the nonresident motorist statutes are required to be treated in the same fashion, and this is equally true among those who submit to the jurisdiction of the courts of this state by the “commission of a tortious act within this state.” Section 506.500; Rule 54.06. Furthermore, we fail to see how the fact that a plaintiff in this situation may choose to secure jurisdiction under two different statutes with different venue provisions can be said to create arbitrary classes among similarly situated defendants any more than does a single venue statute which provides a plaintiff with a choice of forums. Relators’ arguments relating to equal protection are without merit.

Permanent writ of prohibition to issue unless and until valid service of process may be obtained.

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

      . The parties agree that Northwest does not maintain an office in the City of St. Louis. Indeed, no contention is made that Northwest maintains an office anywhere in the state of Missouri, and an affidavit to this effect attached to the petition is not denied in the return.

      . In a law note entitled “The Problem of the Transient Nonresident Motorist”, 14 St. Louis L.Rev. 62, 65 (Dec. 1928), the following appears:
      “Apparently the first statute covering the situation presented at the outset was passed by the Legislature of New Jersey in 1908. It provides in substance that a nonresident motorist, on entering the state, shall register his machine and also shall file an instrument appointing the Secretary of State as his attorney upon whom process may be served in any action growing out of the operation of his motor vehicle within the state. Notice of such service is to be given to the defendant by letter directed to his postoffice address which he has supplied. Penalties are prescribed for violations of the statute.”

      . See Kane v. New Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222 (1916); Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927).

      . The references in § 506.210 to “executor, administrator or other legal representative” were inserted in the section by amendment in 1955. Laws 1955 p. 310.

      . Since § 506.280 specifically provides that it does not “prevent actual personal service in this state upon a nonresident in the time, manner, form, or under the conditions provided for service on residents,” a nonresident defendant could, under appropriate circumstances, be served wherever he could be found in the state. The venue of an action brought under §§ 506.-200 to 506.320, however, would continue to be governed by § 506.290.

      . In State ex rel Apco Oil Corporation v. Turpin, 490 S.W.2d 400, 404 (Mo.App.1973), Judge Simeone discussed these developments as succinctly as the subject will permit:
      “Extraterritorial jurisdiction over natural persons and foreign corporations has had a long and checkered history from Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 to International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 and State ex rel. Deere & Co. v. Pinnell, Mo., 454 S.W.2d 889, which upheld the constitutionality of our statute. See Comment, 16 St. Louis U.L.J. 315. Since the days of Pennoyer in the last century, great social, scientific and sociological changes have been made. We are truly a different society. State lines do not have the same significance they once did insofar as service of process is concerned. ‘Rigid concepts have yielded to fiction, and fiction has yielded to forthright and realistic considerations of fairness in the determination of what constitutes jurisdiction to determine personal rights.’ Deere, supra, at 892, quoting from Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673, 676, In McGee v. International Life Ins. Co., 355 U.S. 220, 222, 78 S.Ct. 199, 201, 2 L.Ed.2d 223, 226, the Supreme Court of the United States stated: ‘Looking back over this long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents.’ Today ‘ . . due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ International Shoe Co., supra, 66 S.Ct. at 158, quoted in Deere, supra, at 893. Today there are only two requirements to acquire jurisdiction over one not served with process within the state: (1) that there be certain minimum contacts with the state, and (2) there is a reasonable method of notification given.”

      . As pointed out in Germanese v. Champlin, supra, footnote 1, the method of service provided by § 506.510 has been expanded by Supreme Court Rules 54.07 and 54.14, “to authorize service out of state in any manner which is proper within the State of Missouri.” Similarly, the Supreme Court has promulgated rules which parallel and expand upon § 506.500 (Rule 54.-06) and § 506.240 (Rule 54.15).