author: WEIER, Judge.

text:
    CITY OF PERRYVILLE, a Municipal Corporation, Plaintiff-Respondent, v. Cyril (Syril) BREWER, Floyd Huber, Albert W. Bergman, John Bruñe & Albert Stueve, Defendants-Appellants, Charles L. Drury, Trustee, Kenneth Krauss, Dennis Sauer, Leo Miederhoff, Bill G. Bailey, Homer Roy, Michael J. Sutterer, Lawrence Feltz, Davis Farm Supplies, Inc., Perryville Development Corporation, and Gary Brewer, as members of a class composed of inhabitants of the area proposed to be annexed to the City of Perryville, Defendants, Adrian Giesler, Dorothy Giesler, Charles M. Kiefner and Marilyn S. Kiefner, Intervenors.
    No. 38425.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 11, 1977.

      John P. Bradshaw, Finch, Bradshaw, Storm & Steele, Cape Girardeau, for defendants-appellants.
    Francis Toohey, Jr., Perryville, Buerkle, Buerkle & Lowes, Albert C. Lowes, David G. Beeson, Jackson, for plaintiff-respondent.
   WEIER, Judge.

In this declaratory judgment action brought under the provisions of the Sawyer Act (§ 71.015 RSMo.1969), the City of Per-ryville sought authorization to annex a circumferential unincorporated area contiguous to its city limits. From a judgment favorable to the city, the defendants-appellants, who are residents and landowners in the area affected, have appealed raising as their principal challenge the sufficiency of the evidence to support the court’s judgment that the proposed annexation was both reasonable and necessary.

After their appeal, defendants filed in this court a motion to remand the case to the circuit court because the city annexed several portions of the area which is the subject of this suit after the judgment was entered. Those annexations were alleged to have been accomplished under the provisions of § 71.012 RSMo.Supp.1976, which governs annexations petitioned by real property owners in the annexed area and not objected to by any interested persons. The portions of territory voluntarily annexed by this process consisted of 625 acres of St. Mary’s Seminary, 90 acres of public school property, and a 10 acre subdivision, according to the appellants’ allegations.

The motion asks that we send this case back to the circuit court for further proceedings in light of the voluntary annexations because the present declaratory judgment can no longer be complied with in terms of the territory to be annexed and because the voluntary annexations have effected a change in the electorate required to vote on the involuntary annexation under § 79.020 RSMo.1969. Before considering the merits of the appeal, we first digress to consider this motion.

Ordinarily, of course, we may not consider any facts outside the record unless they are subject to judicial notice. State ex rel. Freeze v. City of Gape Girardeau, 523 S.W .2d 123, 127[5] (Mo.App.1975); Rawlings v. Taylor, 477 S.W.2d 737, 739[1] (Mo.App. 1972); City of Joplin v. Village of Shoal Creek Drive, 434 S.W.2d 25, 28—29[4] (Mo. App.1968). Municipal ordinances, the method by which a voluntary annexation is accomplished, are generally not judicially noticed. Rather they must be proven like any other fact. State ex rel. Freeze v. City of Cape Girardeau, supra at 127[4]. In this case, however, we can consider the fact of the voluntary annexation, despite its absence from the record and our inability to judicially notice the enabling ordinances, because that fact was conceded by opposing counsel in his suggestions in opposition to the motion to remand. Such a concession brings the conceded fact before us. See, Rawlings v. Taylor, supra at 739[1]; City of Joplin v. Village of Shoal Creek Drive, supra at 28—29[4].

The issue is then presented whether the voluntary annexation of a portion of the disputed territory, subsequent to the issuance of a declaratory judgment under § 71.015, supra, authorizing the disputed territory to be involuntarily annexed, necessitates a remand of this case for further proceedings. The procedure necessary for a fourth class city, like Perryville, to involuntarily annex territory, as provided by § 71.015 RSMo.1969 and § 79.020 RSMo. 1969, requires the city to adopt a resolution to annex the unincorporated territory desired, file an action in the circuit court of the county in which the territory is located seeking a declaratory judgment authorizing the annexation and, if receiving the declaratory judgment, hold an election in which the voters of the city decide whether to annex.

Here, the City of Perryville adopted the appropriate resolution and asked for and received the appropriate declaratory judgment. That judgment authorized the annexation of the entire 2,940 acres of land in question and made way for the holding of an election among Perryville’s voters on the desirability of the annexation. It is the defendants’ contention that by voluntarily annexing over 700 acres of the territory subsequent to the issuance of the declaratory judgment and prior to the holding of the election, the city has made it impossible for the circuit court’s judgment to be complied with, in that the election can be held only as to the territory left after the voluntary annexation instead of the entire territory as contemplated in the circuit court’s judgment. To support this contention the defendants cite two cases, which are, however, irrelevant because they address the question of the circuit court’s power to vary the territory proposed for annexation by the city. They do not address the question of the city’s power to vary from the declaratory judgment of the court.

There is, however, one case which does consider the latter question. That case, Young v. Mayor, Council and Citizens of City of Liberty, 531 S.W.2d 732 (Mo. banc 1976), involved a situation in which a special charter city obtained the declaratory judgment required by § 71.015 RSMo.1969, but then varied from it by passing an annexation ordinance including less than one-half of the territory authorized to be annexed by the judgment. The territory mentioned in the ordinance was, however, wholly within the territory mentioned in the judgment. Young v. Mayor, etc., supra at 735. The court held that a city may not vary from the declaratory judgment in that way and that § 71.015 required the city to obtain another declaratory judgment directed to the consideration of the revised territory desired for annexation only. See, Young v. Mayor, etc., supra at 737-739. The court said that “[i]n view of the effect of the burden which that legislation shifted to the city of establishing in advance the reasonableness of its annexation proposal and in view of the requirement that the petition for approval describe the area proposed to be annexed, it is reasonable to conclude that the legislature intended to require the city to comply with the Act with respect to the area ultimately annexed and to require judicial authorization for that particular action.” Young v. Mayor, etc., supra at 738[9].

This language can be interpreted to either support or destroy the defendants’ position. In one sense the city did not comply with § 71.015 with respect to the area ultimately to be annexed in that some portion of that area has been annexed under § 71.012 and the declaratory judgment obtained for the whole area will only be used to annex the remainder. On the other hand, all the territory subject to the judgment will be annexed to the city if the election is successful even though some of it will have been annexed by a different means. That differentiates this case from Young. Here, Perryville being a city of the fourth class, all the territory will be annexed after the procedure required by §§ 71.015 and 79.020. In Young, only half the territory was annexed by the time the statutory procedure was completely followed. The City of Perryville will not be varying the amount of territory annexed, as was true in Young, but will only be varying the method of annexation. The latter variance, unlike the former, cannot really affect the circuit court’s determination as to whether the statute’s requirements of reasonableness and ability to provide municipal services are met. For these reasons, we hold Young inapplicable to this case. The city’s variance from the declaratory judgment does not invalidate the proceeding so as to require that it apply for a new declaratory judgment.

The defendants' other contention is that the voluntary annexation has increased the city’s electorate beyond what it was at the time the judgment was issued and thus has diluted the votes of other city residents who might oppose the annexation in violation of § 71.015. The defendants cite no authority in support of their contention that enlarging the electorate voting on annexation violates § 71.015. Nor have we been able to find any supporting authority for this contention. Moreover, it appears that the only people whose rights could be prejudiced by an enlarged electorate are those who were city voters before the voluntary annexation. Logically, it is to protect city voters’ rights that an election on annexation is required at all. But voluntary immigration of new voters into the city between judgment and election could not be prevented under normal circumstances. Furthermore, there is no way the rights of the defendants, people who currently live outside the city, could be prejudiced by the enlarging of the city electorate. The rights of defendants are protected by the requirement that the city bring a declaratory judgment action against them in which the city must prove the reasonableness of the annexation. The size or persuasion of the city electorate cannot affect the decision on the declaratory judgment. Since the appellants cannot be prejudiced by this change in the electorate after the issuance of the declaratory judgment, there is no reason to remand the case on that basis either. The motion to remand is denied.

After this diversion in a collateral but important area, we turn to the merits of the appeal, first considering the attack on the judgment for insufficiency of the evidence to support it.

The Sawyer Act (§ 71.015 RSMo. 1969) requires that the city allege and prove not only that the annexation be reasonable and necessary to the proper development of the city but also that the city be able to furnish normal municipal services to the unincorporated area within a reasonable time after the annexation becomes effective. Although the statute is couched in general terms, in applying it, the case law has set up certain standards under which the evidence may be weighed and considered by the trial court before arriving at a decision. Although not exclusive, a listing of such criteria would generally include these: (1) there must be a need for residential or industrial sites within the proposed area; (2) the city is unable to meet its needs without expansion; (3) only needs which are reasonably foreseeable and not visionary should be considered; (4) past growth may be relied on to show future necessity; (5) in evaluating future needs, the extent to which past growth has caused the city to spill over into the proposed area should be considered; (6) the beneficial effect of uniform application and enforcement of municipal zoning ordinances in the city and in the annexed area may be considered; (7) also to be considered is the need for or the beneficial effect of uniform application and enforcement of municipal building, plumbing and electrical codes; (8) the need for or the beneficial effect of extending police protection to the annexed area; (9) the need for or the beneficial effect of uniform application and enforcement of municipal ordinances or regulations pertaining to health; (10) the need for and the ability of the city to extend essential municipal services into the annexed area; (11) enhancement in value by reason of adaptability of the land proposed to be annexed for prospective city uses; and (12) regularity of boundaries. City of Mexico v. Salmons, 514 S.W.2d 102, 104 (Mo.App.1974); City of Houston v. Duff, 338 S.W.2d 373, 379-80 (Mo.App. 1960); City of Fulton v. Dawson, 325 S.W.2d'505, 516 (Mo.App.1959). As we have said, however, in Dressel v. City of Crestwood, 257 S.W.2d 236, 249[7] (Mo.App.1953), it is not necessary that all of the factors which have been listed above as proper to be considered in determining the question of reasonableness should be present before an annexation will be declared valid. “On the contrary, a case of reasonableness is made where it appears that the land annexed is so situated as to be adaptable to urban purposes, and necessary or convenient to reasonable exercise of the city government.” Dressel v. City of Crestwood, supra at 249. See also, City of Cape Girardeau v. Armstrong, 417 S.W.2d 661, 676[7] (Mo.App.1967). After this brief review of the law within which the framework of this case is set, we turn to the facts because each case is a separate problem to be considered under its facts. City of St. Joseph v. Hankinson, 312 S.W.2d 4, 17 (Mo. 1958).

The City of Perryville is the county seat and principal city of Perry County. It lies near the geographical center of the county and is principally located between two parallel highways. U.S. Highway 61 runs northwest-southeast through the city with a small portion of the city on the northeast side of this highway. Interstate Highway 55 also runs northwest-southeast and lies less than a mile southwest of the existing city boundary. If the area proposed is annexed, the city would then appear like a gymnast between two parallel bars supported on one side by Interstate Highway 55 and on the other by U.S. Highway 61 with a good portion of his weight upon and over this last highway. Traversing north to south through the city as it now exists is Missouri State Highway 51. Extending radially from the city are state maintained Highways B, K, T and E. Perryville’s population constitutes over one-third that of the entire county.

Extensive evidence including numerous exhibits was adduced by the city. Assisting in the compilation of this material were the director and personnel of the Southeast Missouri Regional Planning and Economic Development Commission, an organization formed by local governments in that area. In addition, engineers engaged in sewer and water planning and construction appeared as witnesses. Heads of the municipal departments, officers of the city government, the superintendent of public schools, local bankers, real estate brokers, owners of land in the area proposed to be annexed and others testified. From this large compendium of information we have attempted to correlate and summarize substantial evidence which we consider supportive of the judgment, for we are bound to sustain that judgment unless it lacks substantial evidentiary support. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Such a review is not, however, a trial de novo in which we assess the evidence. Rule 73.01; City of Jefferson v. Smith, 543 S.W.2d 547, 550[6] (Mo.App.1976). Because of the great quantity of evidence, we have outlined the facts favorable to the city generally under the factors above enumerated.

1. Growth in the City and Surrounding Area Proposed to be Annexed

(a) Population

By house count the population of Perry-ville in 1976 was calculated to be 5,247 persons. This was an increase of 98 over the 1970 census and was somewhat over the slight growth of 32 people between the census of 1960 and that of 1970. Occupied housing units within the city were 1,874 units in the year 1976. Approximately 2,000 persons are living in the adjacent area proposed for annexation but about 100 of these are seminarians and other personnel located at St. Mary’s Seminary, a Catholic religious institution occupying 625 acres next to the west boundary of the city. The present city contains approximately 1,049 acres. The population density would therefore be approximately 5.2 persons per acre. The area proposed to be annexed contains 2,940 acres. One of the expert witnesses testified that the optimum density for a city like Perryville is 255 acres per 1,000 persons or approximately four persons per acre. If the proposed territory were added to the city, its density would drop to 1.8 persons per acre (2.1 persons per acre if the seminary’s population of 100 and territory of 625 acres total were excluded).

(b) Land Areas and Their Use

In the city, nearly all of the land is already developed. There are no vacant lots in the city which are zoned commercial or industrial. Only a few vacant lots in the city zoned residential are available and most of these are either too small to be desirable for home building or present topographical problems. Some of these vacant lots do not have services such as sewer lines extended to them.

The area proposed for annexation encompasses 2,940 acres. Of this, 720 acres are already developed for residential, commercial, industrial or other uses. In the proposed area are 16 subdivisions platted with 594 lots. Other undeveloped acreage is firmly committed to various uses for the foreseeable future and so is unavailable for development. This includes 625 acres owned by St. Mary’s Seminary, 95 acres in a still unoccupied industrial park, about 25 acres for the County Nursing Home, and 90 acres owned by the public school system. Already developed land and land committed to use other than residential, commercial or industrial use totals 1,720 acres leaving 1,220 acres of the land remaining able to be developed. Less than half of this land is currently being used for agricultural purposes.

Much commercial development in the area proposed for annexation has already occurred near the intersection of Missouri Highway 51 and Interstate 55 south of the city. There is also much development along that portion of U.S. Highway 61 which is northwest of the city and along that portion of Missouri Highway 51 which is north of the city. Y-shaped areas lie between these developments with the more remote land within the V’s still used for agricultural purposes. There is also an extensive development along that portion of U.S. Highway 61 southeast of the city. In the proposed annexation area there are 65 businesses and industries and 650 residential units.

(c)Zoning and Regulation of Land Use

Perry County has no zoning and planning. The City of Perryville, however, has zoning regulations and land subdivision regulations which provide for six general classifications. A city plan commission studies all proposed changes and modifications and reports to the board of aldermen. A public hearing with notice is afforded before any change is made. The zoning ordinance defines certain requirements such as minimum lot size, building height limits and off-street parking restrictions. Without such regulation and planning it is difficult to provide orderly development in a manner that promotes health, safety, convenience and welfare of the inhabitants of the community.

(d) Local Topography and Geological Formations

Much of the surface drainage of Perry-ville and vicinity flows into a stream, Cin-que Hommes Creek, which in turn flows in a northeastward direction from the city. A large part of the area, however, is drained by sinkholes or basis with interior drainage that have no defined streams flowing from them. This drainage flows into underground streams which find passages through the limestone formations underlying this area. This has given rise to a serious sewage disposal problem because many people not served by sewer lines particularly those in outlying areas have either made a practice of running raw sewage into the sinkholes or of diverting effluent from sewage lagoons or other types of primary treatment into the underground area. Testimony disclosed that the underground streams and caverns contain a large amount of untreated sewage. The evidence indicated that one reason for choosing the limits in the area for annexation was to have a centralized sewage system to replace the sinkhole drainage practice.

The unstable condition of the land in certain areas near the sinkholes have also created problems with respect to the construction of buildings, roads and other improvements.

2. Extension of Municipal Services

(a)Police

Much evidence at the hearing concern the condition and capabilities of various municipal services. In regard to police protection, with the exceptions of a hired watchman service at a shopping center outside the present city limits, much of the surrounding area is served by the county sheriffs office. This, because of its nature, is limited. A few of the city police are also deputy sheriffs who can perform police duties outside the city limits but most of the police of the City of Perryville are confined to the city itself. Both the city police and the county sheriff currently share a dispatching system and jail facilities. When the city police department is at its full current strength, it has ten full-time officers including the chief. Upon annexation the department intends to hire four additional officers. The chairman of the police committee of the board of alderman testified that the city had money available for such hiring. Two additional police cars were recently purchased in anticipation of the requirements which might be imposed on the city by the annexation, bringing the total of the cars used by police to five.

(b) Fire Protection

The chief of the fire department testified that the local department was manned by volunteers, the firemen being paid for fires actually attended. The present basic protection to the territory outside of the city was on a fee basis, but this protection was not guaranteed and fires in the city get first priority. Only one of the two pumper trucks were allowed to be sent outside the city limits at any one time and if no water hydrant was available in the area, water had to be pumped out of ponds or other available sources. In addition the department had 700 gallons on the pumper itself with additional tanker supplies. There are 16 volunteer firemen. Adequate protection can be provided to the proposed area with current personnel and equipment. If the annexation is completed, the city is planning on buying additional fire engines. A new firehouse has sufficient room for all of this equipment.

(c) Streets and Trash Pickup

The chairman of the street committee of the board of aldermen testified that the street department had eleven full-time employees and hires more during the summer months. The highways in the to-be-annexed area would generally be maintained by the state but the street department with its current strength would have sufficient men to maintain and improve streets in the outlying area. If the current street improvement program is approved, all current city streets except those with no buildings will be paved. The city has adopted a street plan by passing an ordinance which adopted the annexation study done by the Southeast Regional Planning Commission as the city plan and this would include building new streets in the proposed annexation area. The street department also operates trash pickup trucks and personnel. The city recently joined with the county in purchasing a land fill for trash and solid waste. Current plans would include the purchase of a trash compactor and add two men to serve the annexed area. All of this would probably entail a monthly charge in the future.

(d) Gas Distribution and Electricity

The city maintains a gas department which distributes natural gas in and around the city. The head of that department testified that gas was distributed to over 1,800 customers in the city and over 600 outside of it. Ninety percent of the northern half of the annexed area is already served by the gas department. Little of the southern half is now being served so that service in that area would require additional gas lines. The city has been notified by the gas supplier that the city’s allocation is limited because of the current energy shortage and there is only enough gas now for approximately 70 new customers which could be added with no additional equipment. Some additional personnel would be needed to operate the department with the additional territory to be served.

The electricity is supplied by a private utility company and the supply of electricity is adequate for the entire area.

(e) Water and Sewage

One department in the city takes care of both water treatment and distribution and sewage collection and treatment. The head of that department testified that he had eleven employees working under him. If annexation occurs he will need four additional employees. The department will also need two additional trucks. The city obtains its water from two sources. One is Saline Creek west of the city where the water treatment plant is located and the other is a deep well located within the city limits. There are two storage facilities, one for 500,000 gallons and another for 75,000. The water system has about 2,000 customers within the city and about 400 outside of it.

In 1973 an engineering firm recommended the city make certain improvements in the water treatment plant. These improvements are being made but some have been postponed due to cost. Among the more immediate improvements suggested are another deep well and another 500,-000 gallon standpipe. In addition there should be some 34,000 feet of new, larger water lines. The new deep well is needed because the present supply of water is limited enough to require the water system to run at full capacity for sixteen hours a day to supply the maximum daily requirement of water for the present customers. Although the system could run in excess of this time, it is not recommended. Because of the current demand, the engineering firm employed by the city to survey its needs and to plan the improvements in the water system have cautioned against adding more than 100 new customers until the new well is constructed. The city has tentatively adopted a plan to make the recommended improvements. These improvements could all be completed within one year. There are at least 100 new customers outside of the city who could be added to the current system and there are only 229 outside the city limits that are presently unserved by Perryville. The St. Mary’s Seminary has its own water system and many of the others are presently being served by private sources or by two separate public water supply districts who operate in or near the proposed area to be annexed.

The sewer system is currently in the process of being substantially improved. A new sewage treatment plant southeast of the city designed to replace two present plants has been largely completed. Also mostly completed is an outfall sewer line designed to carry sewage to the new.plant and bypass the old north treatment plant. Another nearly completed project is the lift station and interceptor line designed to carry sewage to the new plant and bypass the old south treatment plant. When put into operation these three projects will enable the sewer system to handle sewage produced by 9,000 people. It will process 900,000 gallons of liquid waste per day. The city is currently producing 450,000 gallons a day and the annexed area would only add 200,000 gallons at this time. As a result the treatment plant will not reach capacity for ten to twenty years if there is annexation. As for connecting the proposed annexation area to the sewer system, evidence was presented that the new outfall sewer line had been built with the thought of servicing the annexation area that it goes through. Plans to extend sewer service to most of the rest of the annexation area have been tentatively adopted by the board of aldermen. Those few areas not covered by the proposed new sewer lines if privately developed could obtain sewer service by requiring the developer to construct the lines. Construction of new lines could also be accomplished through the creation of sewer districts. Another project for which bids were being let out at the time of the trial of this case consisted of eleven subprojects designed to connect sewer lines to the regular sewer system where the sewage is currently discharging waste matter into sinkholes. Another project consists of seven subprojects designed to extend sewer services to areas presently unserved by sewers. Another nine subprojects are designed to upgrade the existing sewer system. Bids were being let out on these projects at the time of the trial. At the time of trial only two areas outside the city were actually served by the municipal sewage system, one a subdivision and the other a shopping center. Because of clean water laws and regulations of the federal government and the state and the insistence of various agencies on regional treatment facilities, the annexation and use of the municipal plant will save landowners outside of the current limits much additional cost in improving or providing individual disposal systems.

(f) Surface Drainage

The city has some storm water drainage problems due to the scarcity of storm sewers. This results in storm water draining into sinkholes and occasionally overflowing. The city engineer has drafted a plan to alleviate the most severe problems at a minimum expense. There is only one storm water problem in the annexation area but according to the city engineer, this could be alleviated in an economically feasible manner.

(g) Recreation

The city owns and maintains a 56 acre park adjacent to U.S. Highway 61. In the park there are four hard surfaced tennis courts, three lighted baseball diamonds and a municipal swimming pool. Eleven covered pavilions provide shelter for picnickers. The largest of these will accommodate about 25 to 30 picnic tables. Other tables and barbeque pits together with playground equipment are found throughout the park. One full-time employee maintains the park. He is assisted by three part-time employees. At time of trial no restriction prevented use of these facilities by those outside the city. The city plans to acquire and maintain additional parks in the annexation area.

3. Financial Condition and Ability to Pay for Extension of Services

A preliminary estimate of the cost of major capital expenditures extending services to the annexation area over a ten-year period puts the amount at approximately $2,600,000. Other major expenditures to be made by the city to improve municipal services within the city have been preliminarily estimated to cost about $600,000. Total funding in the amount of $3,200,000 will have to be provided in order to complete all of the major planned improvements and municipal services in the city and area proposed for annexation.

The city currently generates about $150,-000 a year in general taxes and it should be able to raise in tax money at least $40,000 more from the area to be annexed. Its bonding capacity for general obligation bonds is at least $1,400,000. Because there are some general obligation bonds outstanding, the remaining bonding capacity of the city is about $675,000. Including the annexed area would add an additional $400,-000 to the available bonding capacity. Making some planned larger payments on outstanding bonds, an additional $100,000 bonding capacity would be available within three years. The city has paid $700,000 worth of gas revenue bonds issued in 1960 to leave a balance of $400,000 and has reserves of $225,000 on hand to pay off the balance. In 1974 $300,000 worth of water and sewer revenue bonds were issued thus effectively cutting off the city’s ability to issue any more water or sewer revenue bonds for at least a few years. The city has one of the highest ratings among municipal bonding houses. As a result it has been able to obtain lower interest rates. It has no trouble in paying all of its bills including principal and interest on its bonds and has from $400,000 to $900,000 cash balance each year after paying its expenses.

In addition to obtaining funds from bond issues and taxes, the city can obtain financing for additional services by passing the cost on to people who need the services. Thus new sewer lines can be constructed by the formation of sewer districts and passing the cost on to the ones who need the sewers in a particular area. In addition developers in the outlying areas can be required to put in water lines, sewer lines and streets according to city plans and specifications. The city also plans to apply for federal and state funds to help finance the needed improvements. In the past it has received such funds for projects like the new sewer treatment plant, a large part of the cost having been funded through those sources. Because of increased population if the annexation is completed, the city expects to obtain increased gasoline tax and revenue sharing money. It is doubted that service charges will assist much in the construction of the expensive facilities needed. Most people outside of the city already have water service and few additional sewer customers can be added until the improvements are made. If, however, a proposal to raise water rates is implemented, this could be an additional source of funds needed for the operation of city services. The city treasurer testified there would be enough money available to commence providing normal municipal services to the annexed area in most categories.

4. Increase in Value of Surrounding Land

There is little testimony with regard to the increase in value of the land surrounding the city. Much residential and commercial development had taken place. It could be expected that value of land in close proximity to or in the city itself would be more than land some distance away from the intensive development of the urban area. One defendant who was a retired farmer and lived on about 85 acres, 40 of which would be within the proposed annexed area, admitted that the land was worth much more by reason of being close to town. Another owner of agricultural land testified that he had offered some of his property on the back of his holding for $2,000 an acre and that land closer to the road would be worth more.

5. Regularity of Boundaries

The boundaries for the proposed annexation appear to have been established on a rational and regular basis. According to the report of the Regional Planning Commission, an exhibit in the case, the boundaries were established according to certain principles. These were: (1) the need to establish and maintain uniform and regular city boundaries in all areas unless exceptional circumstances existed; (2) established survey and section lines were followed wherever possible; (3) individual property lines were followed where survey or section lines were not applicable except in those cases where following property lines would result in conflicts with the intent and purpose of the annexation; and (4) the use of surveyed lines for annexation purposes only was limited to those areas where no other suitable lines existed.

Our consideration of the evidence favorable to the city causes us to believe that the defendants’ main attack on the court’s judgment has been repelled. Defendants contend that the evidence is insufficient to support the court’s determination that annexation was reasonable and necessary for the proper development of the city and that the city would be able to furnish normal municipal services to the annexation area within a reasonable time after annexation. The burden of proof is, of course, on the city to show that these tests set out in the Sawyer Act, supra, have been met. City of Jefferson v. Smith, 543 S.W.2d 547, 549[1] (Mo.App.1976); City of St. Ann v. Buschard, 356 S.W.2d 567, 575 (Mo.App.1962). This burden is met, however, if the evidence at least shows that the reasonableness of the municipal legislation to annex is fairly debatable. When such a showing is made, the action of the municipal legislative body is conclusive on the courts. City of Jefferson v. Smith, supra at 549[2]; City of Des Peres v. Stapleton, 524 S.W.2d 203, 207[7] (Mo.App.1975); City of Odessa v. Carroll, 512 S.W.2d 862, 866[1] (Mo.App.1974).

From the evidence, we conclude the annexation proposed by the city is both reasonable to the city and to the area to be annexed. After considering the evidence concerning the growth patterns and extension of planning and services, we are led to the inescapable conclusion that annexation is both reasonable and necessary. Even where there may have been some conflicting evidence and opposing expert opinions, the factual data and opinions in support of or in opposition to annexation caused the issues to be at least fairly debatable. This being so, the action of the board of aider-men of Perryville in adopting the ordinance to annex cannot be attacked on the basis that the board exercised its power unreasonably.

One of the principal arguments advanced by the defendants concerned the size of the area to be annexed. Defendants pointed out the fact that the city as it is presently contained has an area of little more than one-fourth of the total land area after annexation. The evidence indicated, however, that the city has already more densely populated than the optimum suggested by one of the experts; that there is a complete absence of commercial and industrial building sites in the city and a shortage of desirable residential building sites. Although defendants contend that Perryville is not really a growing city needing room for expansion, the contrary is indicated by the fact that the city has spilled over its boundaries out along the highways leading to the city and into desirable residential areas outside of the city limits. Much commercial and industrial enterprise has gone to this area. Although Perryville itself has not grown in population significantly the surrounding area has grown in part at least because of lack of space within the city’s own boundaries. Cf. City of Mexico v. Salmons, supra at 104-105[4 — 6]. Mandatory planning and zoning in surrounding undeveloped areas along with the necessity of effective sewage disposal make extension of the city into the outlying area almost imperative.

Perhaps as much as twenty percent of the annexation area is currently used for agricultural purposes. But the fact this land is being used for agricultural purposes does not preclude its annexation. City of Creve Coeur v. Brame, 446 S.W.2d 173, 177[5-7] (Mo.App.1969); City of Cape Girardeau v. Armstrong, supra at 678; City of Fulton v. Dawson, supra at 517 — 18[7-9]. Much of this land appears to be adaptable for urban purposes because it is virtually surrounded by areas of development. Furthermore, in order to make the boundaries regular, it would be necessary to include these in the proposed annexed area.

Defendants further contend, somewhat collaterally, that the judgment of the trial court was erroneous in finding annexation of territory to be reasonable by a city which failed to comply with the state statutes requiring cities to operate on a budget. It appeared from the testimony of the city treasurer and an accountant who audited the city’s receipts and expenditures that a formal budget was not prepared each year as required by § 67.010 RSMo.1969. But it also appeared that the treasurer and the mayor and board of aldermen used the financial statements prepared by the firm of accountants who audited the city as a basis upon which they estimated the succeeding year’s income and expenses necessary to operate each of the city departments. If additional funds were needed, a study was made of the financial condition of the city, the balances which it had and a determination would then be made as to whether additional expenditures in any particular category should be made. Although we do not condone the city for failing to comply with the directions contained in the statute, the evidence indicated conservative financial management of the affairs of the city and substantial funding to take care of necessary expenditures. Failure to comply with the statute did not detract from ample evidence of the city’s ability and willingness to furnish normal municipal services to the annexed area within a reasonable time. Cf. City of Mexico v. Salmons, supra at 106. Here the city although having no formal budget has no difficulty in paying its bills and finding funds for municipal improvements. It has not over extended itself either in current expenditures or by using up all of its bonding capacity. We find this contention without merit.

Defendants’ final contention concerns the trial court’s findings of fact. They charge that these findings are contradictory. We have examined them closely and find no essential contradiction.

The motion to dismiss the appeal is denied. The trial court’s judgment is affirmed.

KELLY, P. J., and GUNN, J., concur.

      .The procedure to be followed for voluntary annexation of territory, as provided by § 71.012 RSMo.Supp.1976, is for all the real property owners in the unincorporated territory in question to petition the city for annexation. The city is then to hold a hearing at which all interested parties can present evidence on the annexation. If no written objection to the annexation is filed within seven days of the hearing, the city may then annex the territory by ordinance. No election is required.

      . State ex inf. Major v. Kansas City, 233 Mo. 162, 134 S.W. 1007, 1016 (1911); City of Aurora v. Empire District Electric Company, 354 S.W.2d 45, 55 (Mo.App. 1962).

      . Under the statutes relevant to a special charter city, the city had only to pass a resolution to annex the desired territory, obtain a declaratory judgment authorizing the annexation, and then pass an annexation ordinance. No election was required. See, §§ 71.015, 81.080 RSMo.1969; Young v. Mayor, Council and Citizens of City of Liberty, supra at 734.


source: Caselaw Access Project

author: MILTON A. SAITZ, Special Judge.

license: Public Domain

text:
    Linda Diane BUTLER, a minor, by and through Frieda J. Butler, her mother and next friend, Carl Butler and Frieda J. Butler, Plaintiffs-Appellants, v. CIRCULUS, INC., doing business as Laurel Haven School for Exceptional Children, Defendant-Respondent.
    No. 38696.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 11, 1977.

      Ray E. White, Jr., Clayton, for plaintiffs-appellants.
    Theodore D. Ponfil, Clayton, Evans & Dixon, Eugene Buckley, St. Louis, for defendant-respondent.
   MILTON A. SAITZ, Special Judge.

Plaintiffs Linda Diane Butler (a minor who filed suit by and through her mother and next friend Frieda J. Butler and who will be referred to in this opinion simply as plaintiff), Carl Butler and Frieda J. Butler filed a petition against defendant Circulus, Inc., doing business as Laurel Haven School for Exceptional Children, claiming liability on the part of defendant for alleged physical and mental abuse and treatment of Linda Diane Butler while she was a “resident and student” at defendant’s institution. After the filing of plaintiffs’ sixth amended petition defendant filed a motion to dismiss urging (1) that the petition failed to state a claim upon which relief could be granted against defendant, (2) that the petition failed to comply with previous court orders made with respect to plaintiffs’ pleadings, and (3) that the petition commingled allegations of assault and battery with allegations of • negligence in violation of a previous court order. Without stating any grounds for its decision, the trial court dismissed the sixth amended petition with prejudice. Plaintiffs appeal.

If any of the grounds asserted for dismissal are valid, the trial court’s order dismissing the petition must be affirmed. McClellan v. Highland Sales & Investment Co., 514 S.W.2d 371, 374[1] (Mo.App.1974). For plaintiffs to prevail we must find that no ground for dismissal was valid. We first consider whether the trial court’s order is sustainable on the ground that the petition fails to state a cause of action against defendant.

In reviewing whether a petition states a cause of action “we are required to construe the petition favorably and to give the pleader the benefit of every reasonable and fair intendment in view of the facts alleged. If the pleader’s allegations invoke principles of substantive law which may entitle the party to relief, the petition is not to be dismissed. If the facts pleaded and reasonable inferences to be drawn therefrom, looked at most favorably from the plaintiff’s standpoint, show any ground upon which relief can be granted, the plaintiff has a right to proceed.” Euge v. Golden, 551 S.W.2d 928, 931[4] (Mo.App.1977). And “if the petitioner’s allegations invoke substantive principles of law which may entitle the pleader to relief, it will be sustained even though the cause of action is imperfectly or defectively stated.” Id. at 932[8]. We set out the sixth amended petition in full.

“SIXTH AMENDED PETITION COUNT I
Comes now plaintiff, Linda Diane Butler, a minor, by and through Frieda J. Butler, her mother and next friend, and for her cause of action states;
1. That Linda Diane Butler is a minor, mentally retarded, has no legally appointed guardian and brings this cause of action by and through her natural mother and duly appointed next friend, Frieda J. Butler.
2. That the defendant, Circulus, Inc., is a Missouri Corporation organized and authorized to do business in the State of Missouri and is licensed to do business under the Fictitious Name Act of the State of Missouri with the name of ‘Laurel Haven School for Exceptional Children’ and does operate a residential institution and facility which accepts mentally retarded persons for care, treatment, custody, training and education in Ballwin, Missouri which institution is licensed by the State of Missouri to provide care, treatment, custody, training and education of mentally retarded persons under the provision of Section 202.900 Revised Statutes of Missouri 1969 as amended 1972, formerly Section 202.831.
3. That on or about the 7th day of January, 1974, this plaintiff was admitted as a resident and student at the institution and facility operated by defendant in Ballwin, Missouri, and was a resident and student at said school until on or about May 3,1974 for the purpose of defendant providing her care, treatment, training and education as a mentally retarded person.
4. Plaintiff states that during the time she was a resident and student of said institution and facility, defendant, by and through its employees and agents during times said employees and agents were providing her care, treatment, training and education as a mentally retarded person,
a) developed and carried into effect an improper program of behavior modification in respect to plaintiff which was based on physical and psychological punishment of plaintiff in an effort to cause plaintiff to obey orders and directions and as part of said program committed the following acts:
i) Routinely, on a daily basis, defendant’s employee Kenneth A. Meyer twisted plaintiff’s arms slapped plaintiff and sat on plaintiff in an effort to punish plaintiff and to cause plaintiff to obey orders and directions.
ii) Routinely, on a daily basis, defendant’s employee, Kenneth A. Meyer, while acting in his capacity as supervisor of the Sheltered Workshop Division of defendant’s institution ridiculed plaintiff, called plaintiff derogatory names, threatened plaintiff, used abusive language towards plaintiff and singled plaintiff our [sic] for special disciplinary actions by the employees of defendant’s institution in an effort to punish plaintiff and cause plaintiff to obey orders and directions.
iii) On or about May 1, 1974 defendant’s employee Kenneth A. Meyer struck plaintiff in the neck with his fist in an effort to punish plaintiff and to cause plaintiff to obey said employee’s orders and directions.
iv) Routinely, on a daily basis, defendants [sic] employee Martha Frill-man twisted plaintiff’s arms and struck plaintiff in an effort to punish plaintiff and to cause plaintiff to obey orders and directions.
v) On one or more occasions between April 16,1974 and May 1,1974, defendant’s employee Martha Frillman struck plaintiff about her body with a whip-like object in an effort to punish plaintiff and to cause plaintiff to obey orders and directions.
vi) Defendant’s employee, Martha Frillman forced plaintiff to eat soap in an effort to punish plaintiff and cause plaintiff to obey said employee’s orders and directions.
vii) On or about the 17th day of March 1974, defendant’s employee, Pat Belt kicked plaintiff in the mouth in an effort to punish plaintiff and to cause plaintiff to obey said employee’s orders and directions.
viii) On or about the 7th day of January, 1974 and during the month of April, 1974, defendants [sic] employee Katherine Cummings, kicked and kneed plaintiff in the shins, legs and back, wrestled with and sat on plaintiff in an effort to punish plaintiff and to cause plaintiff to obey said employee’s orders and directions.
ix) On or about the 9th, 10th, 11th and 20th day of January 1974, the 4th day of March 1974, the 9th, 10th, 11th, 14th, 15th, 16th, 17th, 21st, 22nd, 23rd, 25th and 29th days of April 1974 and the 3rd day of May 1974, defendant by and through its employees and agents caused plaintiff to be placed in mechanical restraints without a physician’s approval therefore in an effort to punish plaintiff, to cause plaintiff to obey the orders and directions of defendant’s,
b)From the 7th day of January 1974 through the 3rd day of May 1974, defendant failed to provide plaintiff with the type of training and education which it knew or should have known was required if plaintiff was to reach her maximum ability to function as a mentally developed person and which failure it knew or should have known would result in the loss by plaintiff of her existing ability to function as a mentally retarded person.
5. Plaintiff states that the aforesaid occurrences were the direct and proximate result of the negligence and carelessness of defendant and defendant’s employees and agents while acting within the scope and course of their employment by defendant in the following respects.
a) Defendant used improper methods of punishment in attempting to modify plaintiff’s behavior.
b) As to the occurrences set forth in paragraphs 4(a)(i) through (ix) defendants employees and agents used excessive force under the circumstances then and there existing.
c) Defendant employed persons to provide care, treatment, training and education to plaintiff which it knew or should have known were unqualified to provide such care, treatment and education.
d) Defendant failed to supervise those persons it employed to provide care treatment, training and education to plaintiff so as to ascertain that said occurrences were taking place and so as to prevent their repetition.
e) Defendant failed to supervise the work of Kenneth A. Meyer so as to ascertain that he was providing inadequate and improper supervision and direction to other employees in the Sheltered Workshop Division of Defendant’s institution.
f) Defendant failed to train its employees to provide proper care, treatment, training and education to plaintiff.
6. Plaintiff states that as a direct and proximate result of the aforesaid occurrences, she was caused to suffer severe burns, bruises, contusions, lacerations, scars, a child abuse syndrome, further mental retardation, mental illness and her nerves and entire nervous system are shocked, that plaintiff suffered, suffers and will in the future suffer much pain of body, anguish of mind, mental illness, further mental retardation, cosmetic defects and all of her injuries are permanent, painful and progressive, all to plaintiff’s damages in the sum of Five Hundred Thousand Dollars ($500,000.00).
7. Plaintiff states that all of the occurrences therein alleged were due as a direct and proximate result of the wanton, willful and reckless disregard and neglect of her safety and her well being.
WHEREFORE, plaintiff, Linda Diane Butler, prays actual damages in Count I, in the sum of Five Hundred Thousand Dollars ($500,000.00), and punitive damages in the sum of Two Hundred Thousand Dollars ($200,000.00), together with her costs herein expended.
COUNT II
Plaintiffs Carl Butler and Frieda J. Butler, for their cause of action against this defendant state:
1. That at all times herein mentioned they were the parents and natural guardians of Linda Diane Butler and as such legally responsible for her medical and hospital necessities.
2. They incorporate herein by reference all of the allegations contained in Count I of this petition.
3. These plaintiffs state that as a direct and proximate result of the occurrences alleged in Count I and the injuries resulting to their minor daughter, they were caused to expend and/or obligate themselves in the approximate sum of Six Thousand Five Hundred Dollars ($6,500.00) for necessary medical, psychiatric and surgical care of the injuries of Linda Diane Butler and will in the future be required to expend and/or obligate themselves further for further medical, psychiatric, surgical and hospital care for her injuries all to their damages in the sum of One Hundred Thousand Dollars ($100,000.00).
WHEREFORE, plaintiffs, Carl Butler and Frieda J. Butler, pray damages in Count II in the sum of One Hundred Thousand Dollars ($100,000.00) together with her costs herein expended.”

Plaintiffs claim the sixth amended petition states “a cause of action in negligence against defendant in that: a) it alleged the existence of a duty on the part of defendant to protect plaintiff from injury in that it stated that defendant operated a residential institution and facility which accepts mentally retarded persons and plaintiff was a resident at defendants [sic] institution and facility; b) it alleged a failure to perform this duty in that it stated that defendant carried on an improper program in respect to the modification of plaintiff’s behavior and failed to provide her proper care, treatment, training and education and that these acts were caused by the negligence of defendant and defendant’s servants acting within the scope and course of their employment and; c) it alleged injury to plaintiff from such failure.” Other than pointing out that plaintiffs have the burden of producing a pleading which contains a short and plain statement of the facts showing they are entitled to damages from defendant, Rule 55.05, and that the petition seems to mingle together claims based on breach of contract, negligence and assaults and batteries, defendant does not brief or argue this issue. On this point defendant’s motion to dismiss merely asserted that Counts I and II “of the sixth amended petition [fail] to state a claim upon which relief can be granted against defendant.” Thus we do not know the aspects of plaintiffs’ petition that defendant thinks are defective or in what ways they are thought to be defective. On the basis of plaintiffs’ brief and our own independent research we analyze plaintiffs’ sixth amended petition.

“A petition seeking damages for actionable negligence must allege ‘ultimate facts’ which, if proven, show (1) existence of a duty on the part of the defendant to protect plaintiff from injury, (2) failure of defendant to perform that duty, and (3) injury to the plaintiff resulting from such failure.” Scheibel v. Hillis, 531 S.W.2d 285, 288[1] (Mo.banc 1976). A duty to exercise care may be imposed by entering into a contractual relationship or by common law under the circumstances of a given case. Id. at 288[2]. “The reasonable anticipation of danger is an essential element of actionable negligence; and whether negligence exists in a particular situation depends on whether or not a reasonably prudent person would have anticipated danger and provided against it.” Id. at 288[7]. “[A] reasonable man must anticipate and guard against the intentional or criminal misconduct of others where he has brought into contact or association with others a person whom he ‘knows or should know to be peculiarly likely to commit intentional misconduct, under circumstances which afford a peculiar opportunity or temptation for such misconduct.’ ” Id. at 288[8], quoting Restatement (Second), Torts, Sec. 302B, comment e, note D. “With respect to the problem of proximate causation, if the foreseeable likelihood that a third person may act in a particular manner is one of the hazards which makes a person negligent, such an act of a third party, whether innocent, negligent, intentionally tortious or criminal, does not prevent that person from being liable for the harm caused thereby.” Id. at 288[9],

From the allegations in Count I that plaintiff was a resident and student at defendant’s licensed institution “for the purpose of defendant providing her care, treatment, training and education as a mentally retarded person,” plaintiffs have established the existence of a duty on the part of defendant to protect plaintiff from injury. The failure of defendant to perform that duty is shown by the allegations that defendant failed to supervise its employees thus permitting them to physically and mentally abuse plaintiff as part of a behavior modification program. The petition also alleges injury proximately resulting from such failure. Given the behavior modification program based on punishment, the allegations show that it was reasonably foreseeable that defendant’s employees would abuse plaintiff if the employees were not properly qualified, trained and supervised. See, Scheibel v. Hillis, 531 S.W.2d 285, 288[7-9] (Mo.banc 1976); Porter v. Thompson, 357 Mo. 31, 206 S.W.2d 509, 512[5] (1947) (employer could be liable for assault committed by employee if employer knew or should have known of employee’s vicious propensities); Schulte v. Graff, 481 S.W.2d 596, 600, 602 (Mo.App.1972) (employer could be liable if plaintiff showed employee was unqualified or not properly trained or supervised); Priest v. F. W. Woolworth Five & Ten Cent Store, 228 Mo.App. 23, 62 S.W.2d 926, 928[4] (1933) (employer could be liable for unauthorized act of employee in bending customer backwards over counter if plaintiff showed employer failed to exercise ordinary care in employing a proper servant). See generally, 6 Am.Jur.2d, Assault & Battery § 134, pp. 113-114; 53 Am.Jur.2d, Master and Servant § 422, pp. 435-38; 57 C.J.S. Master and Servant § 559, pp. 270-77. Count I states a cause of action against defendant in negligence.

Furthermore, we believe that Count I states another valid theory of liability against defendant. This is on the basis of vicarious liability for the use of excessive force (intentional assaults and batteries) by defendant's employees acting within the scope of their employment. By alleging that defendant’s employees beat and struck plaintiff while plaintiff was at the institution “in an effort to punish plaintiff and cause plaintiff to obey orders and directions,” plaintiffs have shown that the employees were engaged in and attempting to further the master’s business of maintaining order and discipline at the institution. See, Smothers v. Welch & Co. House Furnishing Co., 310 Mo. 144, 274 S.W. 678, 679[1, 2] (1925) (store employee who attempted to have sexual intercourse with customer not acting within scope of employment but was pursuing his own ends); Smith v. Lannert, 429 S.W.2d 8,14-15[9-10] (Mo.App.1968) (jury question on whether store manager’s action in spanking an employee for disobeying an order to return to work was within the scope of his employment); Young v. Sinclair Refining Co., 92 S.W.2d 995, 1001-02[9] (Mo.App.1936) (employee’s act of throwing hammer at boy to keep him away from newly poured concrete within the scope of his employment). See also, Restatement of Agency 2d, § 245. Further, these alleged actions are not the kind of unforeseeable outrageous, excessively violent or criminal conduct which must be said, as a matter of law, not to be within the scope of employment. See, Wellman v. Pacer Oil Company, 504 S.W.2d 55, 58 (Mo.banc 1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1981,40 L.Ed.2d 313 (1974) (act of gas station employee shooting customer held not within scope of employment as a matter of law); Henderson v. Laclede Radio Inc., 506 S.W.2d 434, 437[2] (Mo.1974) (act of beating and kicking debtor over $15 debt at chance meeting at 4 a.m. not within scope of employment). In view of the nature of defendant’s business and the duties of the employees, it appears from plaintiffs’ allegations that the excessive force allegedly used by the employees was foreseeable, even though this amount of force may have been unauthorized.

Count I states a cause of action on two possible grounds. Count II, which incorporates by reference all of the allegations of Count I, and which claims damages to plaintiff’s parents for past and future medical expenses resulting from “the occurrences alleged in Count I,” also states a cause of action against defendant.

The other possible ground for affirming the lower court judgment dismissing the sixth amended petition with prejudice is that plaintiffs failed to comply with one or more court orders. We consider the last two grounds asserted for dismissal together.

The fifth and last trial court order dismissed plaintiffs’ sixth amended petition with prejudice. The first four are orders defendant claims plaintiffs did not comply with. These orders either granted motions to strike pleadings or to make them more definite or dismissed parts of petitions with leave to amend. Rule 67.02 and 55.27(d) authorize dismissals for failure to follow court orders. The decision of whether pleadings should be dismissed with prejudice for failure to follow court orders appears to be a matter left to the sound discretion of the trial court so that on review an appellate court is to determine whether the trial court abused its discretion.

Defendant claims the trial court acted within its discretion in dismissing the petition following plaintiffs’ “refusal” to comply with four court orders. Plaintiffs claim they made a good faith attempt to comply with all orders. These orders must be considered in the context in which they were made.

Prior to the first court order in this case plaintiffs had filed their original petition (on May 10,1974), their first amended petition and their second amended petition. The second amended petition consisted of five counts. Following defendant’s motion to strike or to dismiss the second amended petition, the trial court made its first order in the case as follows: “Deft’s motion to strike portions of Count I which are repetitious of allegations in Count III and IV called, heard and sustained.” Within the ten days allowed by the trial court plaintiffs filed their third amended petition. Count I of this petition is similar to the previous Count I but it omitted any mention of twisting of limbs and being placed in restraints, presumably because these were the matters which had been stricken from Count I of the previous petition by the first trial court order. The remaining four counts were virtually identical to the last four counts of the previous petition.

After defendant filed a motion to strike, an alternative motion for a more definite statement and a motion to dismiss the third amended petition on the ground that no count stated a cause of action against defendant, the trial court issued its second order in the case. This order sustained defendant’s motion to dismiss as to Counts I, II, IV and V and overruled defendant’s motion to dismiss as to Count III. Plaintiffs were granted twenty days in which to file an amended petition.

Plaintiffs’ fourth amended petition, filed within the allotted time, again consisted of five counts. Counts I, II and V were virtually identical to the same numbered counts in the third amended petition. Count III added the allegation that the striking, kicking, whipping, and slapping, etc. of plaintiff by four named employees was “in violation of Section 202.900 Revised Statutes of Missouri 1969 as amended 1972 and Regulations 0503, 0503.1, 0549, and R0599 promulgated thereunder”. Count IV asserted that the restraint of plaintiff by the use of straps applied to her arms and legs was a “violation of her right to freedom of movement” and alleged that putting her under restraint was “in violation of Sections 202.843 Revised Statutes of Missouri 1969 and Section 202.900 Revised Statutes of Missouri 1969 as amended 1972 and Regulations 0503, 0503.1, R059.3 promulgated thereunder.” This count did not allege that plaintiff had been placed alone in a locked room as the previous Count IV had.

The trial court’s third order granted defendant’s motion for a more definite statement as to Count I of this petition. This motion had requested the court to order plaintiffs to state, with respect to paragraph 5(a) of Count I, “the specific respects in which defendant failed to adequately supervise or control the care of plaintiff” and to specify, with respect to paragraph 5(c), “the specific regulation which defendant allegedly violated by each omission that is alleged, in other words plaintiff should be required to allege which regulation, of the many mentioned, defendant allegedly violated by its alleged failure to examine plaintiff, which regulation defendant allegedly violated by its alleged failure to test plaintiff, etc.” The third order also overruled defendant’s motions to dismiss Counts I and II. The motion to dismiss Count IV was sustained and the motion to dismiss Count V was “sustained as to reallegations of Count IV, and overruled in all other respects.” Plaintiff was granted ten days to file an amended petition.

Within the allotted time plaintiffs filed their fifth amended petition. In Count I of this petition plaintiffs expanded on paragraph 5(a) of Count I of the previous petition by including about three additional pages of statements of how defendant allegedly “failed to adequately supervise or control the care treatment, training and education of plaintiff.” For example plaintiffs alleged that defendant failed to adequately investigate injuries to students, failed to supply necessary materials, and failed to review records kept regarding the administration of drugs “to ascertain that drugs were being administered to plaintiff in improper amounts at improper times.” Also in Count I of the fifth amended petition plaintiff expanded on paragraph 5(c) of Count I of the previous petition by listing regulations allegedly violated by various alleged omissions of defendant. This expanded section consumes more than five pages of the transcript and includes such allegations as not affording plaintiff individual instruction in violation of Regulation 0523, failing to keep records “which provided for planning and continuous evaluation of plaintiff’s program in violation of Regulation 0533,” denying plaintiff the right to attend religious services in violation of Regulation 0546, failing “to serve plaintiff a nourishing, well balanced diet in that her diet was deficient in meat and fresh fruits and of insufficient quantity to maintain her weight, [failing] to make provision for evening snacks in violation of Regulation R0564.2 and R0564.3,” and failing “to foster behavior that maximizes the human qualities of plaintiff, increases her complexity and enhances her ability to cope with her environment in violation of Regulation 0543 but instead instituted a behavior modification program based on principles of punishment and aversion therapy which caused her to regress as a human being and develop characteristics of a wild animal.” Count II of the fifth amended petition is similar to the previous Count II. It sought punitive damages claiming the occurrences in Count I were due to defendant’s “wanton, willful and reckless disregard and neglect of [plaintiff’s] safety and the safety of others . and her right to a positive program of treatment on the part of the defendant, its agents, servants and employees.” Count III is substantially the same as the previous Count V. It is a claim on behalf of Linda’s parents for past and future medical expenditures. The previous Counts III (which had claimed that plaintiff was struck and kicked, etc. by defendant’s employees) and IV (which had alleged that plaintiff had been restrained by straps around her arms and limbs) were not included in the fifth amended petition, but the allegations contained in these counts were included in Count I under the abuses suffered by plaintiff while at the school.

After defendant filed motions to dismiss, to strike and for a more definite statement, the trial court made its fourth ruling in the case. In this ruling the court overruled defendant’s motion to dismiss but defendant’s motion to strike was sustained, the court stating with respect to each count that “those portions of plaintiff’s petition are hereby stricken as prayed in defendant’s motion to strike.” With respect to Count I, the motion to strike, referred to in the court order, had requested the deletion of the allegations of paragraph 5(a) which had been added to the fifth amended petition in an apparent attempt to comply with the court order commanding plaintiffs to make the previous paragraph 5(a) more specific. The ground asserted for this order was that these “allegations are so broad that they will permit the introduction of evidence totally unrelated to plaintiff’s claim of damage.” For basically the same reason the motion had requested the deletion of the allegations which had been added to the previous paragraph 5(c) (now 5(d)) in an apparent attempt to comply with the court order requiring plaintiffs to make the previous paragraph 5(c) more specific. The motion also requested the phrase “and unknown other persons” to be stricken from Count I. It further requested the deletion of paragraphs 5(e), 5(f) and 5(g) from Count I “for the reason that said allegations are unrelated to plaintiffs’ claim of damage and will permit plaintiff to introduce evidence wholly unrelated to the nature of plaintiff’s claim for damages.” These paragraphs were a partial listing of the ways plaintiffs claimed defendant was negligent in allowing plaintiff to be abused. As to Count II the motion to strike had requested (and the court so ordered) the deletion of the phrases “and the safety of others,” “the well being of others” and “and her right to a positive program of treatment on the part of the defendant, its agents, servants and employees.”

The last part of the fourth court order stated: “In regard to defendant’s motion for more definite statement, previously heard and taken as submitted, is hereby sustained ad [sic] to those portions of Plaintiff’s Fifth Amended Petition; not stricken herein, with leave to the plaintiff to amend within twenty (20) days as to those portions not stricken.” The motion for a more definite statement, referred to in this order, had requested more specificity in regard to stating in Count I dates when various acts allegedly occurred, “[sjtating in separate counts the allegations of negligent acts and the allegations of assaults and intentional acts contained in Count I” and “[sjtating more specifically what plaintiffs are referring to by use of the term ‘occurrences’ in paragraph 2 of Count II.”

Within the time allowed by the trial court, plaintiffs filed their sixth amended petition. This petition is set out in full, supra. To this petition, the trial court sustained defendant’s motion to dismiss and the cause was dismissed with prejudice. We now consider the extent of plaintiffs’ compliance with the four court orders in question.

The first court order struck from Count I allegations which had been repeated in Courts III and IV. Even if plaintiffs were required to do something to obey this order, plaintiffs did so by omitting from Count I of their next (third amended) petition any mention of allegations found in Counts III and IV. The second court order simply sustained motions to dismiss with leave to amend. By timely filing another petition, plaintiffs complied with this court order. One part of the third court order dismissed parts of the fourth amended petition with leave to amend. By timely filing their fifth amended petition, plaintiffs complied with this part of the third order. The other part of this order required Count I of plaintiffs’ next petition to be more specific in several respects. Plaintiffs complied with this part of the order by detailing and expanding on the parts of Count I covered by the order. Plaintiffs fully complied with the first three court orders.

The fourth court order was the more complex. One part of this order overruled motions to dismiss. Obviously plaintiffs were not required to do anything to comply with this part of the order. Another part of this order sustained motions to strike and stated that those parts of the petition which defendant had requested stricken “are hereby stricken.” Some of the matters stricken from the fifth amended petition were not included in plaintiffs’ sixth amended petition but some of these matters were again included in the sixth. The final part of this order granted defendant’s motion for a more definite statement as to the nonstricken portions of the fifth amended petition. This part of the order required plaintiffs to do several things. First, it required them to state “the dates that the various acts alleged in Count I were alleged to have been committed.” As can be seen from paragraph 4(a) of Count I of the sixth amended petition, plaintiffs did specify some of the dates on which certain alleged events took place. Other events were alleged to have occurred “[rjoutinely, on a daily basis.” The allegation about employee Martha Frillman forcing plaintiff to eat soap (4(a)(vi)) does not state a date when this alleged event occurred. In their brief, plaintiffs state that the date of this event is unknown. Second, this part of the order required plaintiffs to state “more specifically what plaintiffs are referring to by use of the term ‘occurrence’ in paragraph 2 of Count II.” In the sixth amended petition the allegations of the prior Count II are not listed in a separate count. Rather, these allegations were put in paragraph 7 of Count I of the sixth amended petition. In this paragraph plaintiffs did not elaborate on the meaning of “occurrence.” We note that the same term appeared in paragraphs 5 and 6 of Count I of the fifth amended petition without objection from defendant and that this term also appears in paragraphs 5 and 6 of Count I of the sixth amended petition. Third, this part of the order required plaintiffs to state “in separate counts the allegations of negligent acts and the allegations of assaults and intentional acts contained in Count I.” As is evident from a reading of Count I of the sixth amended petition, plaintiffs did not separate allegations of negligence and intentional torts into separate counts. Instead, plaintiffs retained their previous theory of the case which was that plaintiff had been intentionally abused by staff and other students as a result of defendant’s negligence in failing adequately to supervise and control, etc. its employees and program at the school.

It appears that plaintiffs could be accused of violating the fourth court order in only four respects. These are: (1) including in the sixth amended petition allegations which had been stricken from the fifth amended petition; (2) not stating the date of one event; (3) not specifying the meaning of “occurrence”; and (4) not stating in separate counts allegations of negligent acts and allegations of assaults and intentional acts.

When matters are ordered stricken from pleadings, they are simply deleted by the court order. Such an order does not require or direct the pleader to do anything; he may include the stricken allegations in an amended pleading. Compare, Rule 55.27(d) and § 509.310 RSMo 1969 (if pleading is not made more definite following court order to do so, “the court may strike the pleadings to which the motion was directed, or make such order as it deems just”) with Rule 55.27(e) (“court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter”). By including allegations stricken from the fifth amended petition in their sixth amended petition plaintiffs did not violate any court order.

The other violations of court orders involve plaintiffs’ failure to make parts of their sixth amended petition more definite. Whether these events are measured by the specific rule, Rule 55.27(d) (§ 509.310 RSMo 1969), or the general rule, Rule 67.02 (§ 510.140 RSMo 1969), either of which could apply here, we do not believe that dismissal of plaintiffs’ petition is sustainable on the grounds of plaintiffs’ failure to make these parts of their petition more specific. It is an abuse of discretion to order a plaintiff to make a petition more definite when the petition already alleges sufficient facts to appraise the defendant of the acts with which he is charged so that he can prepare a responsive pleading. Einhaus v. O. Ames Co., 547 S.W.2d 821, 823 (Mo. App.1976). See, Gates v. Tauchen, 497 S.W.2d 183, 185[2] (Mo.1973); Sansone v. National Food Stores, Inc., 352 S.W.2d 375, 378-79[6] (Mo.App.1961). Further, a dismissal for failure to follow a court order presupposes an order lawfully made. Healer v. Kansas City Public Service Co., 251 S.W.2d 66, 68[5] (Mo.1952). When plaintiffs claim they do not know the date of one event, they should not be penalized for failure to specify the date particularly because it appears that this part of the petition is sufficient to enable defendant to answer. See, Wright & Miller, Federal Practice and Procedure § 1379, p. 777. Although plaintiffs did not define the term “occurrence” in paragraph 7 of their sixth amended petition, defendant must have known what was meant by this term because the same word was used two other times in Count I of the fifth amended petition without objection from defendant and this term was used two more times in Count I of the sixth amended petition other than in paragraph 7. This term obviously refers to the events enumer- ■ ated in paragraph 4 of the sixth amended petition.

Finally, even though plaintiffs did not state in separate counts the allegations of negligent acts and allegations of assaults and intentional acts as required by the court order, we do not believe under the circumstances of this case that this failure warranted the harsh remedy of dismissal of the entire petition with prejudice. The purpose of the rules of civil procedure is to secure a just determination of every civil proceeding. Rule 41.03; Stacy v. Department of Public Health and Welfare, 468 S.W.2d 651, 654[2] (Mo.App.1971); Associated Grocers’ Company of St. Louis v. Crowe, 389 S.W.2d 395, 399[4] (Mo.App.1965). “All pleadings shall be so construed as to do substantial justice.” Rule 55.24. A dismissal with prejudice operates as an adjudication on the merits, Max v. Spaeth, 349 S.W.2d 1, 3[1] (Mo.1961), and forever “bars the assertion of the same cause of action or claim against the same party.” Rule 67.03. Plaintiff might have thought that they need not comply with this order for two reasons. First, plaintiffs might have believed the order was invalid because Rule 55.10 (§ 509.110 RSMo 1969) states that “[a] party may set forth two or more statements of a claim . . . alternatively or hypothetically, either in one count ... or in separate counts . . . ” (emphasis added). We do not believe that this order was invalid on this ground; such an order must ordinarily be obeyed. But confusion in this regard is understandable. Second, the order directing plaintiffs to state “in separate counts the allegations of negligent acts and the allegations of assaults and intentional acts” is not entirely clear. Plaintiffs might have believed that strict compliance with the order (complete separation of the allegations of the intentional acts and negligent acts) would have resulted in neither count stating a cause of action against defendant in negligence. This is because allegations of both types of acts are necessary to state a cause of action in negligence in this case. If the court order is read to mean that plaintiffs should state their theory of defendant’s liability on the basis of negligence in one count (which count could include allegations of defendant’s negligent acts as well as the employees’ intentional acts) and state their theory of defendant’s liability on the basis of re-spondeat superior in another count (which would only include allegations of the employees’ intentional acts), then the order is proper and reasonable and is one with which plaintiffs should have complied. But because the order itself and the necessity for compliance were not entirely clear, we believe that plaintiffs’ noncompliance was excusable. The trial court’s action in dismissing plaintiffs’ petition with prejudice for failure to follow this order was an abuse of discretion. The dismissal of the petition is not sustainable on this ground.

One last issue must be discussed. Plaintiffs claim the trial court erred in striking portions of their fifth amended petition. Defendant counters by asserting that plaintiffs cannot raise this issue because they abandoned the allegations of their fifth amended petition when they filed their sixth amended petition. Although the cases support this abandonment theory, Laux v. Motor Carriers Council of St. Louis, Inc., 499 S.W.2d 805, 809[8] (Mo. 1973); Weir v. Bruñe, 364 Mo. 415, 256 S.W.2d 810, 811[1, 2] (1953); Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596, 597[3] (1953) (former petitions not before court even though included in transcript), plaintiffs claim the rule of abandonment should not apply here because they did not voluntarily abandon their prior allegations in that these disputed and stricken allegations were omitted from the sixth amended petition only in an attempt to comply with the court order striking the allegations. But, as noted earlier, when matters are ordered stricken from pleadings, they are deleted by the court order and no further action by the pleader is necessary. Compare, Rule 55.27(d) and § 509.310 RSMo 1969 (if pleading is not made more definite following court order to do so, “the court may strike the pleadings to which the motion was directed, or make such order as it deems just”) with Rule 55.27(e) (“court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter”). Thus, even if voluntariness is required, plaintiffs did voluntarily abandon the allegations of their fifth amended petition when they filed their sixth amended petition, because it was not necessary to file another amended petition at all and if one were filed it could have included allegations which had been stricken from the previous petition. If plaintiffs desired appellate review of the trial court order striking parts of their fifth amended petition, they could have stood by those pleadings and raised the propriety of the strike order on an appeal from a final judgment rendered as to those pleadings or filed an amended petition which included the previously stricken allegations.

The trial court’s judgment is reversed and remanded.

SMITH, P. J., and McMILLIAN and GUNN, JJ., and GEORGE W. CLOYD, Special Judge, concur.

      . Rule 67.02 provides in part:
      “For failure of the plaintiff to prosecute or to comply with these Rules or any order of the court, a defendant may move for dismissal of a civil action or of any claims against him.” See also, § 510.140 RSMo. 1969.

      . Rule 55.27(d) provides in part:
      “If the motion [for a more definite statement] is granted and the order of the court is not obeyed within 10 days after notice of the order, or within such other time as the court may fix, the court may strike the pleading to which the motion was directed, or make such order as it deems just.” See also, § 509.310 RSMo. 1969.

      . The decision to dismiss for failure to prosecute under Rule 67.02 is a discretionary one with the trial court. Shirrell v. Missouri Edison Company, 535 S.W.2d 446, 448[1] (Mo.banc 1976); State ex rel. State Highway Commission v. Manley, 549 S.W.2d 533, 534[1] (Mo.App. 1977). The decision to dismiss for failure to comply with court orders under Rule 67.02 should likewise be a matter for trial court discretion. This is the standard under Fed.Rule Civ.Proc. 41(b) (which rule in pertinent part, is virtually identical to Missouri Rule 67.02). Moore v. St. Louis Music Supply Company, Inc., 539 F.2d 1191, 1193[1] (8th Cir. 1976); Asociación de Empleados del Instituto de Cul-tura Puertorriqueña v. Morales, 538 F.2d 915, 916[1] (1st Cir. 1976); Fendler v. Westgate California Corp., 527 F.2d 1168, 1170[2] (9th Cir. 1975); 15 A.L.R.Fed. 407, 420-22, § 6. The decision to dismiss for failure to make a pleading more definite under Rule 55.27(d) is discretionary with the trial court. See, Einhaus v. O. Ames Co., 547 S.W.2d 821, 826[7] (Mo.App. 1976). But see, Gates v. Tauchen, 497 S.W.2d 183 (Mo. 1973) (no standard stated); George Kropp & Associates, Inc. v. Schneider, 363 S.W.2d 58 (Mo.App. 1962) (no standard stated). See generally, Note, Involuntary Dismissal for Disobedience or Delay: The Plaintiff's Plight, 3 U.Chi.L.Rev. 922 (1967) (good discussion of alternative sanctions for violations of court orders).

      . Apparently in direct conflict with the provisions of this rule and statute (the statute has remained unchanged since at least 1943) several cases state that it is bad pleading to join two theories of recovery in one count. Rotert v. Peabody Coal Company, 513 S.W.2d 667, 676[4] (Mo.App.1974); King v. Morris, 315 S.W.2d 497, 498[4] (Mo.App.1958); Kearns v. Sparks, 260 S.W.2d 353, 358[5] (Mo.App.1953). But the force of these statements in these cases is undercut by the absence of any mention of Rule 55.10 or § 509.110 in either Kearns or King and the fact that in Rotert, the court held that separating plaintiffs’ claims into separate counts was proper because the damage occurred at different times, and that had plaintiffs submitted the two different theories of their claim in one count this “possibly could have run afoul of what was said in King v. Morris (emphasis added).

      . If plaintiffs lost at trial, they could appeal the whole case including the validity of the strike orders. See, Emery Bird Thayer Dry Goods Co. v. J. C. Nichols Co., 427 S.W.2d 492, 494[1] (Mo.banc 1968); Davis v. Davis, 284 S.W.2d 575, 578[4] (Mo. 1955); State ex rel. Marcum v. Sappington, 261 S.W.2d 385, 390-91 [5] (Mo. App.1953). If plaintiffs won a verdict and judgment at trial they could still appeal the validity of the strike orders because they would be aggrieved by the judgment in that they were not afforded all the relief they had requested. See, Page v. Hamilton, 329 S.W.2d 758, 762[2-4] (Mo. 1959); Reed Schmidt and Associates, Inc. v. Carafiol Furniture Company, 469 S.W.2d 876, 879[5] (Mo.App.1971); Eissler v. Eissler, 468 S.W.2d 217, 218[1, 2] (Mo.App.1971).

        State ex rel. Broglin v. Nangle, 510 S.W.2d 699 (Mo.banc 1974) reviewed the propriety of a strike order in a mandamus proceeding prior to the final judgment in the case. This case has been sharply criticized. Tuchler, Discretionary Interlocutory Review in Missouri: Judicial Abuse of the Writ?, 40 Mo.L.Rev. 577, 592-93 (1975).


author: HOGAN, Judge.

text:
    In re the MARRIAGE OF Wanda Rae ROEDER, Petitioner-Appellant, v. James R. Roeder, Respondent-Respondent.
    No. 10267.
    Missouri Court of Appeals, Springfield District.
    Oct. 20, 1977.
    A. L. Shortridge, Joplin, for petitioner-appellant.
    John M. Belisle, Osceola, for respondent-respondent.

      Before STONE, P. J., and HOGAN and TITUS, JJ.
   HOGAN, Judge.

Appeal is taken from an order modifying the child custody provisions of a decree dissolving the parties’ marriage.

Wanda and James Roeder are the parents of two daughters. At the time the decree of dissolution was entered on December 8, 1975, the elder daughter was about 2½ years of age; the younger was two months old. The trial court confided both children to their mother, subject to the father’s right of visitation. The father was ordered to pay child support in the amount of $70 per month per child.

On December 29, the mother filed a motion to modify the judgment of December 8, which had gone by default. Initially, the mother requested modification in several respects, but upon trial limited her motion to a request that she be allowed to remove the children to Ponca City, Oklahoma, where she had found employment. The father countered with a motion to cite the mother for contempt upon the ground that she had wilfully concealed the children to prevent their father from exercising his right of visitation and had removed the children from the jurisdiction of the court in violation of § 452.310(3) RSMo Supp.1975.

On January 12, 1976, a hearing was held on both motions and an order modifying the original decree was entered. Custody of the younger child was awarded to the mother, and the mother was granted permission to remove the child to Oklahoma. The father was given custody of the elder child. Both parties were granted “reasonable” visitation privileges. The court further specifically found that the mother had failed to obey its orders and had shown disrespect for the court but in terms took the motion to cite for contempt “under advisement.”

Rule 81.01, Y.A.M.R., states that the right of appeal shall be as provided by law. § 512.020, RSMo 1969, V.A.M.S., limits the general right of appeal, with exceptions not here material, to final judgments or special orders after final judgment and provides that an appeal taken before final judgment does not prejudice the aggrieved party’s right to review after a final judgment is entered. Whatever the trial court’s reason for leaving the issue of the mother’s contumacy undecided, it is clear that it did so and meant to do so. Since the record shows on its face that the trial court did not exhaust its jurisdiction, it may, upon proper notice, vacate, modify or correct any part of the decree entered. State ex rel Schweitzer v. Greene, 438 S.W.2d 229, 232[5] (Mo.banc 1969); Pendleton v. Pendleton, 532 S.W.2d 905, 906 (Mo.App.1976). Perhaps the trial court meant to leave the cause in such condition; we do not know and do not speculate, but in any case, the decree is not final, the trial court has not exhausted its jurisdiction and we may not exercise ours. Green v. Green, 240 S.W.2d 741, 742-743 (Mo.App.1951). Accordingly, the appeal is dismissed.

All concur.

“[N]ow, regarding the contempt citation, the Court is not going to take final action upon that at this time.”

      . At the January 12 hearing, the trial court outlined the substance of its proposed modification; we note the parties were advised