author: TURNAGE, Judge.

text:
    The CENTURY STATE BANK, a Missouri Banking Corporation, and David Babel, Individually and as Correspondent and Agent for Century State Bank and for the Individual Shareholders of the Century State Bank, Appellants, v. STATE BANKING BOARD OF MISSOURI and its Individual members et al., Respondents.
    No. KCD 26823.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.
    Motion for Rehearing and/or Transfer Denied June 2, 1975.
    Application to Transfer Denied July . 14, 1975.

      Robert Hines, Bear, Hines & Thomas, Columbia, for appellants.
    Raymond C. Lewis, Jr., David B. Rogers, Smith, Lewis & Rogers, Columbia, for respondents.
    Before WASSERSTROM, P. J., and SHANGLER and TURNAGE, JJ.
   TURNAGE, Judge.

Century State Bank (Century) appeals from the judgment of the circuit court affirming an order made by the State Banking Board (Board) which revoked the bank charter granted to Century by the Commissioner of Finance.

An appeal from the granting of the bank charter by the Commissioner of Finance was taken to the State Banking Board by the four existing banks in Columbia, Missouri, and by the State Bank of Hallsville. Century intervened in such appeal and thereby'became a party.

It was proposed that Century would become the fifth bank in Columbia and would be located in the north part of town on the road between Columbia and Hallsville. Hallsville is located 11.8 miles northeast of Columbia and this accounts for the interest of State Bank of Hallsville in a charter being granted to Century. The Board held two days of hearings which comprises a transcript of 541 pages. Thereafter the Board entered the following order:

Upon consideration of the record before the Commission and evidence adduced at the hearing the Board finds and concludes:
That the record and evidence adduced does not support a finding that the convenience and needs of the community to be served justify and warrant the issuance of a charter to applicant. Columbia is presently served by four banks, with three separate facilities and another facility under construction. Considerable expansion of banking facilities in Columbia and Boone County have occurred over the past ten years to meet the needs of an expanding population. The evidence shows that the banking needs of Columbia are being adequately served at this time.
The Legislature has pronounced a public policy of continuing to liberalize the expansion of banking services through separate facilities and the Board takes notice of such policy in reaching this decision.
IT IS, THEREFORE, ORDERED; That the decision of the Commissioner of Finance be and it is hereby reversed and that the charter issued to Century State Bank is hereby revoked and held for naught, with the costs of this appeal assessed against applicant pursuant to Sec. 361.095(2) RSMo 1969.

On this appeal Century makes a point of the failure of the Board to make findings of fact and conclusions of law as required by the Administrative Review Act, § 536.090 RSMo 1969, V.A.M.S. Such Section provides “every decision and order in a contested case shall be in writing, and, . shall include and be accompanied by findings of fact and conclusions of law. The findings of fact shall be stated separately from the conclusions of law and shall include a concise statement of the findings on which the agency bases its order”.

The necessity for an administrative agency to make findings of fact and conclusions of law has recently been restated in St. Louis County v. State Tax Commission, 515 S.W.2d 446 (Mo.1974). In that case the court stated at 1. c. 452[9, 12], “[i]n the case here for decision there are disputed issues of fact and law which must be resolved by the commission before we may make any pronouncements as a matter of law on the correctness and propriety of the assessor’s valuation . . . . ‘A court cannot substitute its discretion for the discretion legally vested in the agency, § 536.140, subd. 5, or make a determination of the value of the property and fix the amount of the tax assessment upon record evidence from which different conclusions might be drawn in the exercise of the administrative discretion’.”

In the case at bar, the Board heard evidence from a number of witnesses concerning the adequacy of the banking services being rendered to the Columbia area, the growth, or lack thereof, of the new bank, whether or not the University of Missouri would continue to grow, whether or not the City of Columbia would continue to grow, and the effect of the incorporation of a new bank in Columbia on the existing banks in that City together with its impact on the Bank of Hallsville. Included in the evidence were two research reports from each' side, one on each side made by a research company, and one on each side made by a professor from the University of Missouri. As may be surmised, the reports offered by each side agreed with one another, but were diametrically opposed to the reports offered by the other side. Thus, the Board was confronted with a great deal of conflicting evidence. Under § 536.140, the scope of judicial review of administrative decisions is generally limited to a determination of whether the order is supported by competent and substantial evidence upon the whole record. To determine if an order is supported by competent and substantial evidence, it is necessary to know which evidence the Board believed and, therefore, found to be true. If the Board had set out the facts it found to be true, then it would be possible for this court to go through the evidence before the Board and decide if such findings and the conclusion based thereon was supported by competent and substantial evidence. However, without such findings, this becomes an impossible task.

Moreover, in appeals from decisions of administrative agencies, it is not permissible to consider that the agency found the facts in accordance with the result reached. In Stephen & Stephen Properties, Inc., v. State Tax Commission, 499 S.W.2d 798 (Mo.1973) the court stated at 1. c. 804[6]:

“Appeal from a tax commission decision is unlike appeal from a judgment in a court tried case where review is de novo and the appellate court may assume that all fact issues on which no findings were made were found in accordance with the result reached (rule 73.01(b), V.A.M.R.). In administrative review, the court is bound by the agency’s findings if supported by competent and substantial evidence and its scope of review is limited. For a court to infer findings from the ultimate decision of an administrative agency, defeats this limited review provision, as it allows the court to find both the law and the facts on appeal.”

The court further stated at 804[8, 9]:

“Five practical reasons have been outlined for the requirement of findings by the Model State Administrative Procedure Act which has been enacted in Missouri. These justifications include: (1) the facilitation of judicial review; (2) preventing judicial usurpation of administrative functions; (3) to protect against careless or arbitrary action (the requirement of findings, evokes ‘care on the part of the trial judge in ascertaining the facts.’; (4) to help parties plan their cases for rehearing and for judicial review; and (5) to keep the agencies within their jurisdiction. Davis, Adm. Law, Yol. 2, Sec. 16.05 (1958).” (citations omitted).

Beginning at least as early as Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136 (1952), the courts have voiced the necessity for an agency to make findings of fact. The failure of agencies to make adequate findings found expression in the report of the Administrative Law Committee to the Missouri Bar as noted in 29 J.Mo.Bar 563 (1973). In Iron County v. State Tax Commission, 480 S.W.2d 65 (Mo.1972), the court reviewed the necessity of the agency to enter findings of fact and conclusions of law and set out the requirements the findings of fact are expected to meet.

It is, therefore, firmly entrenched as a part of the law of this State that not only does the statute require administrative agencies to make findings of fact and conclusions of law, but such is also the mandate of the cases in which this requirement has been discussed.

It is too clear to admit of argument that a court cannot be expected to determine whether or not an agency’s decision is supported by competent and substantial evidence when the court has only before it the bare ultimate conclusion which the agency reached. The duty of the agency extends well beyond the making of the ultimate decision and includes as well the exercise of its discretion in passing on the credibility of the evidence which it hears and to make a determination as to what part of the evidence it will believe and find to be true and what part it will reject.

It should further be noted the ground assigned by the Board concerning the adequacy of banking services already being offered has been held not to be a valid ground for the revocation of a bank charter. Suburban Bank of Kansas City v. Jackson County State Bank, 330 S.W.2d 183 (Mo.App.1959). This is not to indicate any view by this court on the merits of the evidence in this case, but simply to further illustrate the frailty of the order made.

In defending the Board’s order in this case, the protesting banks state that Century, in its petition for review filed in the circuit court, did not allege the failure of the Board to make findings of fact and conclusions of law as a ground for review. Cited in support of this proposition are two decisions of this court, Carroll Construction Company v. Kansas City, 278 S.W.2d 817 (Mo.App.1955) and Isgrigg v. Board of Trustees of Policemen’s and Fireman’s Pension Board, 401 S.W.2d 936 (Mo.App.1966). In Carroll this court held in an appeal from a decision from a Board of Zoning Adjustment that the failure of the Board to make findings of fact and conclusions of law would not be considered because the petition filed in the circuit court did not raise such issue nor was any request for conclusions and findings made to the Board. The court stated this was required by Chapter 536, the Administrative Review Act. The holding in Isgrigg was to the same effect.

The decision in Carroll came prior to May Department Stores Co. v. State Tax Commission, 308 S.W.2d 748 (Mo.1958). In May the court held at 1. c. 762[20]:

“[Statutes providing the remedy of judicial review (§§ 536.100, 536.110) do not require specific grounds to be stated in the petition . . . .; we find no previous authority requiring such under Chapter 536”.

The court concluded that it would consider a claim of error on the part of the agency even though it was not contained in the petition for review filed in the circuit court.

It should be noted that the provisions of Chapter 536 do not require any specific allegations of error to be included in the petition for review. Of even greater impact, the requirements of Chapter 536 that the agency make findings of fact and conclusions of law has been stated to be mandatory in State ex rel. Zimmerman v. Moran, 439 S.W.2d 503 (Mo.1969). In addition, such necessity is established by the cases heretofore discussed. In view of the holding in May, and the other cases discussed herein, there is no requirement that the failure of an agency to make findings of fact and conclusions of law be included in the petition for review, nor is there any requirement that a request for the same be made to the agency. It follows that Carroll and Isgrigg should no longer be followed on this point.

It is true the courts of this State have on occasion decided cases in which the findings of fact and conclusions of law were little better, if any, than those in the case at bar. In Central Bank of Clayton v. State Banking Board of Mo., 509 S.W.2d 175 (Mo.App. 1974), the court noted the woeful inadequacy of the findings of fact by the Board but noted the parties had not raised any question concerning it. Likewise, in Marshfield Community Bank v. State Banking Board, 496 S.W.2d 17 (Mo.App.1973) the findings of fact of the Board were very similar to those in this case. There the court did not discuss the adequacy of the findings and obviously the parties had not raised any complaint concerning them.

Neither the Central Bank nor Marshfield case hold that the findings of fact made by the Banking Board in those cases were adequate, but each case simply failed to discuss that question. For that reason, those cases would not constitute any authority to hold the findings in this case to be adequate.

The protesting banks further point out the decisions in which the requirement for findings of fact and conclusions of law are discussed generally involve the State Tax Commission. It is suggested some different standards should apply to the State Banking Board. This result cannot obtain because the decisions of the Banking Board are reviewed under the same statutes, Administrative Review Act, under which the decisions of the State Tax Commission are reviewed. It is the positive mandate of these statutes requiring findings of fact and conclusions of law which dictates the result here, and not the particular agency involved. It necessarily follows from the above discussion that this court cannot review the decision of the Board because of the complete failure of the Board to make findings of fact and conclusions of law. For that reason, the judgment of the circuit court must be reversed.

In view of the disposition of this appeal, Century has raised one point which might reappear in the future progress of this case. Century argues that the sole function of the Board in this case was to review the decision of the Commissioner of Finance and make a determination of whether or not his decision was supported by competent and substantial evidence. That argument has been fully answered in the Marshfield case and the function of the State Banking Board on appeal from a decision of the Commissioner is fully discussed and delineated there.

The protesting banks have raised the question of whether or not in the event this case is reversed and remanded for the making of findings of fact and conclusions of law, the Board would be authorized to reopen the hearings. In Iron County the court affirmed a judgment of the circuit court remanding the cause to the Tax Commission and allowing the Commission to reopen the matter if a majority of the Commission decided to do so. In St. Louis County the court directed the case to be remanded to the Tax Commission and stated the Commission was authorized to take additional evidence.

In view of these decisions, on remand of this cause to the Board, the Board is authorized to reopen the hearing and hear additional evidence if a majority of the Board desires to do so. Otherwise, the Board may formulate findings of fact and conclusions of law based on the evidence already presented to it. In any event, the Board must make findings of fact and conclusions of law in accordance with the standards established in the eases discussed herein.

The judgment is reversed and this cause is remanded to the circuit court with directions to reverse the order of the State Banking Board and to remand the cause to the State Banking Board with directions to make findings of fact and conclusions of law, and to reopen the hearings in this matter, if the Board deems it appropriate, and enter its final order.

All concur.


source: Caselaw Access Project

author: SWOFFORD, Presiding Judge.

license: Public Domain

text:
    John C. GOOCH, Respondent, v. James R. SPRADLING, Director of Revenue, State of Missouri, Appellant.
    No. KCD 27099.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.
    Motion for Rehearing and/or Transfer Denied June 2, 1975.
    Application to Transfer Denied July 14, 1975.

      John C. Danforth, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for appellant.
    G. Michael Fatall, W. James Foland, Kansas City, for respondent.
    Before SWOFFORD, P. J., and ROBERT R. WELBORN and ANDREW J. HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

Respondent (hereinafter called “licensee”) was arrested for driving a motor vehicle while intoxicated and his operator’s license was revoked for a period of one year by the appellant for alleged refusal to submit to a breathalyzer test under the provisions of Section 564.444(1) RSMo 1969, V.A. M.S. He filed his petition for review of this administrative ruling as authorized by section 564.444(2) and upon hearing in the court below, the order of revocation was set aside and rescinded. This appeal followed.

The licensee has filed his motion to dismiss the appeal (incorporated in his brief), based upon the assertion that the appellant’s brief does not comply with Rule 84.04(b), V.A.M.R., as to Jurisdictional Statement, nor with Rule 84.04(d) as to Points Relied On. Appellant filed his suggestions in opposition to this motion which, at least tacitly, admit these deficiencies. This motion to dismiss was taken with the case and it is now denied. This ruling is made (in face óf the fact that the appellant’s brief is obviously subject to the failures charged to it) because the jurisdiction of this court is apparent from the transcript and the briefs, the basic facts are clear, the issue of law is sharply posed, and a final determination of this matter will result in no hardship to the licensee since the enforcement of the revocation order has been stayed by appropriate orders in the court below. Parker v. Wallace, 473 S.W.2d 767, 772[10] (Mo.App.1971). It should be here noted, however, that it continues to be the sincere hope of this and all the appellate courts of this state that counsel on appeal scrupulously comply with the rules and thus avoid the possibility of punitive orders of dismissal.

The single decisive point on this appeal is whether the licensee’s refusal to take a breathalyzer test was such a refusal as to invoke the sanction of revocation as provided by Section 564.444 RSMo 1969, V.A.M.R. At the review hearing in the court below, the appellant assumed the burden of proof that the revocation was warranted under the facts by offering the testimony of the arresting officer, which may be summarized as follows:

Garland Howard Rimmer, a member of the police department of Independence, Missouri for one year and nine months, stopped the licensee on September 3, 1973 at or near 38th Street and Queen Ridge Drive within the municipal limits of Independence after following the car driven by licensee for five blocks and observing that the car was being operated in an erratic manner. At this location, the officer observed that the licensee had a strong odor of alcohol about his person, staggered and almost lost his balance, his eyes were glassy and he was swaying. The officer thereupon placed the licensee under arrest for driving while intoxicated. The arrest occurred at approximately 6:36 o’clock p. m. and the licensee was forthwith taken to the Independence police station and the officer prepared the breathalyzer machine for operation. About 15 — 20 minutes after arrival at the station, the officer then told licensee that he wanted him to submit to the test, and the possible consequences of his refusal to do so. The officer testified that at this time, the licensee twice refused the test and stated “Somebody tell me my rights, somebody tell me what to do.”, and the officer then disconnected the machine. The licensee then talked to Corporal Willoughby, the booking officer, and again twice refused the test. Rimmer testified that the licensee then agreed to the test and he, Rimmer, again set up the breathalyzer machine. Thereupon, the officer stated, the licensee again refused the test, at which time the officer filled out the refusal form as provided by Section 564.444 RSMo 1969, V.A.M.R.

Officer Rimmer testified that after he stopped the licensee’s car, he had him under observation for “right at an hour” and that in his opinion, the licensee was “highly intoxicated”.

On cross-examination, the officer stated that the licensee asked to see his lawyer, but could not recall when this was relative to their arrival at the police station, except that it was as he started to read the Miranda warning to licensee. He never did actually read the warning. The officer explained “to him that as soon as he was booked in, he would have the right and could call anyone he wished.” He did not intend to book the licensee until after he was given “all these tests”. There was no question in the officer’s mind that the licensee wanted to talk to his lawyer at the time he was being questioned and Rimmer was filling out the alcohol influence report.

The licensee testified at the review hearing in the court below that from the scene of his arrest, he was taken to the police station, and when he first arrived there he requested that he be permitted to contact his lawyer and received no response to this request. When the breathalyzer machine was set up, he refused to take the test and stated, “I’m not going to take any test until I talk to my lawyer.” During the next hour, he was continually questioned by Officer Rimmer and was asked to perform certain tests, such as the “coin drop” test. He was asked repeatedly “Are you going to take the test?” and he repeatedly refused “until I talk to my lawyer”, except on one occasion, because of the “badgering”, he agreed to the test but changed his mind because he wanted to talk to his lawyer. He stated that the officer never explained what the breathalyzer test was or what the consequences of his refusal to take it would be. He testified that had he been permitted to talk to his lawyer and had been advised to take the test, he would have done so. He had never before been convicted of “drunken driving”; had never taken a breathalyzer test; and had never been taken to a police station and quizzed for an hour. On cross-examination, he denied that he was intoxicated and admitted that he became somewhat irritated and argumentative with the officers when he was not permitted to contact his lawyer. He had no previous experience with or knowledge of the breathalyzer test, and the officers said nothing to him about it, except to repeatedly ask him, “Are you going to take the breath test?”

Officer Rimmer and the licensee were the only witnesses at the hearing below.

The court below made Findings of Fact which may be summarized as: (1) Licensee displayed signs of intoxication; (2) he was arrested; (3) at the police station, he was requested to take the breathalyzer test and was advised of the consequences of a refusal; (4) he made repeated demands and requests to consult his attorney, which were refused, and he was not allowed to and did not talk to counsel at any time while under arrest; (5) he refused to take the breathalyzer test; and (6) the policy of the Independence police department, which was accomplished in this case, is that no phone calls may be made until a party is booked, and they do not “book” until after the breathalyzer or other tests are made.

The trial court’s Conclusions of Law were as follows:

“1. The plaintiff was arrested.
2.The arresting officer had reasonable grounds to believe that the plaintiff was driving a motor vehicle while in an intoxicated condition.
3. The plaintiff did not refuse to take the breathalyzer test.
4. V.A.M.R. 37.89 guarantees to each individual that is arrested or held in custody by a police officer in any jail, police station or other place, for the alleged commission of an offense or suspicion thereof, the right to consult with an attorney and to use a telephone to do so, if one is available.
5. The plaintiff, although having made the request, was not allowed to consult with his attorney and therefore there was no effective refusal to take the breathalyzer test.”

A careful review of the transcript discloses that there was ample competent evidence to support the findings of fact summarized above, and the same are approved under Rule 73.01(3)(a), (b), applicable to appellate review in this type of case. Likewise, the trial court’s conclusions of law 1 and 2 are proper and comply with the requirements of Section 564.444, subd. 2(1), (2), RSMo 1969, V.A.M.S.

The only remaining matter for decision here is whether the trial court’s conclusions of law 3, 4 and 5 comport with legal principles and were proper under the facts of this case. In combination, these conclusions result in a finding as a matter of law that the licensee did not refuse to submit to the breathalyzer test. Section 564.444, subd. 2(3) and Section 564.444, subd. 3, RSMo 1969, V.A.M.S., require that the court make an affirmative finding that the licensee did refuse to submit to the test before an order of revocation may be affirmed.

The conclusions of law of the court below reaching the negative of this proposition stem from an application of Rule 37.89, and so far as the briefs herein and independent research disclose, presents a legal problem never before directly decided by an appellate court in Missouri.

Under the mandate of Article V, Section 5, of the Constitution of the State of Missouri, V.A.M.S., the Supreme Court adopted Rule 37, governing practice and procedure with reference to traffic cases, which rule became effective April 1, 1960. Included are the following provisions:

“Rule 37.02. Rules — Authority for — Purpose and Construction.
These Rules are drafted and promulgated pursuant to authority granted the Supreme Court by Section 5 of Article V of the Constitution of 1945 of the State of Missouri and are intended to provide for the just determination of municipal court proceedings and in traffic cases in all such courts having original jurisdiction. They shall be construed to secure simplicity and uniformity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. ******
Rule 37.89. Counsel — Right to Consult.
Every person arrested and held in custody by any peace officer in any jail, police station or any other place, upon or without a warrant or other process for the alleged commission of an offense or upon suspicion thereof, shall be permitted to consult with counsel or other persons in his behalf at all times and, for such purposes, to use a telephone if one be available.” (Emphasis added)

The statutory provision with reference to driving a motor vehicle while intoxicated, the procedures for chemical analysis of alcohol in the blood and the procedures for revocation of an operator’s license, Sections 564.441-564.444, RSMo 1969, V.A.M.S., have been labeled with the convenient misnomer of the “implied consent” law. This, upon the theory that the use of public streets and highways is a privilege and not a right, and that a motorist by applying for and accepting an operator’s license “impliedly consents” to submission to a chemical analysis of his blood alcohol level when charged with driving while intoxicated. The misnomer is apparent for the reason that a motorist in such a situation under the terms of Section 564.444 RSMo 1969, V.A.M.S., has the present, real option either to consent to the test or refuse it, and preliminarily the police authority must request the test, explain its purpose and the consequences of refusal. Bolling v. Schaffner, 488 S.W.2d 212, 215[4, 5] (Mo.App.1972). The motorist cannot then be bound by any consent which may have arisen by implication upon the issuance of his license. He must make this choice in the atmosphere of his arrest and restraint.

It has been held that a refusal to take the test must be express and unequivocal. Thomas v. Schaffner, 448 S.W.2d 319, 322[2] (Mo.App.1969). In Thomas, the arrested licensee had refused the test and asked permission to talk to his lawyer, which was granted. After doing so and on advice of his counsel, he agreed to the test. The police then refused to administer the test. The court held there had been no effective refusal so as to warrant revocation. In Bolling, an arrested licensee was permitted to talk to his lawyer, who advised him not to take the test, and the licensee then refused. This court held the refusal to be unequivocal and warranted the revocation. Likewise, in Jones v. Schaffner, 509 S.W.2d 72 (Mo.1974), the licensee was permitted to contact his attorney, who came to the police station and advised licensee to refuse the test, which was thereupon definitely refused. The court in Jones held such refusal justified the revocation. In Hester v. Spradling, 508 S.W.2d 194 (Mo. App.1974), the arrested licensee was allowed to call his lawyer, who advised his client at the police station to take the test. The licensee then gave his specific consent, but the police refused to administer the test because, “He’s already refused by smoking.” The time lapse between the arrest and the consent was variously estimated from 38V2 to 53V2 minutes. The trial court held there had been no refusal within the meaning of the law, and that judgment was affirmed.

In all of the cases of Bolling, Thomas, Jones and Hester, the arrested licensees were permitted to contact their lawyers (with varying results) and in none of them were the provisions of Rule 37 considered. In the case at bar, the licensee made repeated requests to contact his lawyer and was repeatedly denied that right, and the provisions of Rule 37, and particularly Rule 37.89, are directly and importantly involved.

Appellant seeks to avoid the impact of this rule by asserting that the proceedings involve a civil matter, a traffic offense, of minor nature, and therefore licensee had no right to consult an attorney prior to the chemical test and “could not refuse to take the test by insisting on that right.” This view cannot be given judicial approval under the facts here presented, for several reasons.

Rule 37.89, adopted by the Supreme Court effective April 1, 1960, constitutes the law of this state upon that subject unless and until it is “annulled or amended by a law limited to the purpose” by legislative enactment. Article V, Section 5, of the Constitution of Missouri. No such legislative annullment or amendment has occurred. The so-called “implied consent” statute, Section 564.441 RSMo 1969, V.A. M.S. was adopted in 1965, some five years after the effective date of Rule 37.89. Laws 1965, p. 671, §§ 1, 2. The revocation of license provision, Section 564.444 RSMo 1969, V.A.M.S., was adopted by the legislature at the same time. Laws 1965, p. 672, § 4. Neither legislative enactment undertakes in any way to annul or amend Rule 37.89. Accordingly, the statutes and the rule must be read together so that the ultimate rule of both substantive and procedural principles thus expressed merge into the. determinative law of this case.

The same canons of construction are applicable to the Rules as are universally applied to construction of legislative enactments. Garland v. American Family Mutual Insurance Company, 458 S.W.2d 889, 890 — 891[1, 2] (Mo.App.1970). One of these canons is that the purpose and intent of the court in adopting the rule be ascertained. It was obviously the purpose and intent of the Supreme Court by the adoption of Rule 37.89 to extend to persons under arrest for traffic offenses the right to representation and advice of counsel “at all times” after his arrest. There is nothing ambiguous or obscure in the language employed. Clearly in this case and under these facts the licensee was denied these rights, whether the pending charge against him was to be theoretically denominated civil, quasi-criminal or criminal in character. Such distinctions become meaningless under Rule 37.89.

But the rule is not meaningless and cannot be disregarded nor its clear import vitiated by a policy of the Independence, Missouri police department to deny contact with counsel until all tests, questions and examinations have been completed and the arrestee booked. In Levin v. Carpenter, 332 S.W.2d 862, 866[6] (Mo.1960), the court held that rules of practice and procedure in traffic cases adopted under constitutional authority by the Supreme Court (of which Rule 37.89 is an integral part) should be carefully followed by all departments of the government charged with the procedures.

Of course, it is conceivable that the protection of this rule could be so abused or misused by a person charged with driving while intoxicated that a chemical analysis would become useless by the lapse of time (as urged by the appellant) and that such abuse or misuse would be tantamount to a refusal to submit to the test and justify revocation. But such is not the factual situation in this case. The licensee’s request to contact his lawyer at that hour in the evening could have been accomplished by a telephone call within a few minutes or counsel’s presence secured within the hour that the request was denied. At least, the record does not indicate otherwise.

The two cases from Missouri relied upon by appellant [Blydenburg v. David, 413 S.W.2d 284 (Mo. banc 1967), and State v. Neal, 476 S.W.2d 547 (Mo. banc 1972) did not involve Rule 37.89 and are not decisive of this appeal. The numerous cases from foreign jurisdictions cited by appellant are not persuasive because none of them involves either statutes or rules such as Rule 37.89.

The licensee herein did not make an unequivocal refusal to take the breathalyzer test under the facts in this case, and the trial court properly so ruled as a matter of law.

The judgment below is affirmed.

All concur.

      . Section 544.170 RSMo 1969, V.A.M.S., the so-called “20 hour rule”, contains substantially the same language as Rule 37.89, except that it is made applicable only to persons arrested “for any alleged breach of the peace or other criminal offense.” Compare Rule 21.14.


author: GUNN, Judge.

text:
    Mae HILL and Chesley Hill, Plaintiffs-Appellants, v. Michael David BOLING, Defendant-Respondent.
    No. 35643.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 6, 1975.
    Motion for Rehearing or Transfer to Court En Banc or Transfer to Supreme Court Denied June 12, 1975.

      William R. Kirby, Carl I. Katzen, St. Louis, for plaintiffs-appellants.
    Murphy, Kortenhof & Ely, St. Louis, for defendant-respondent.
   GUNN, Judge.

This suit arose from an intersection collision between an automobile driven by Ches-ley Hill and another driven by the defendant, Michael Boling. Mae Hill, a passenger in the car driven by her husband, Chesley Hill, brought this action seeking to recover damages for personal injuries sustained in the accident. Chesley Hill brought a separate claim against the defendant seeking to recover damages for loss of consortium and medical expenses incurred by his wife. The jury returned verdicts in favor of the defendant. Both plaintiffs appeal, and we affirm the judgment.

The accident occurred at night at the intersection of Lemay Ferry Road and Fanny Avenue in St. Louis County. Lemay Ferry Road is straight, running north-south; Fanny Avenue runs generally east-west, At the time of the accident, the intersection was controlled by a flashing amber traffic light. The weather was clear and the roads were dry. The plaintiffs were driving southwardly on Lemay Ferry Road at a speed of 20-25 m. p. h. As Chesley Hill approached the intersection of Fanny Avenue, he slowed his vehicle down, intending to make a left turn onto Fanny. There was conflicting testimony as to whether he came to a complete stop before proceeding into the turn. Mr. Hill testified that he had reduced his car’s speed to 5 m. p. h. and proceeded into the turn; that before turning he looked to the south and did not see any traffic approaching. He further stated that he first saw the defendant’s car a few seconds before impact. At the time of impact, the front end of the Hills’ car was three or four feet into Fanny Avenue.

Prior to the collision, the defendant was driving north on Lemay Ferry Road at a speed of 25-30 m. p. h. As the defendant approached the intersection of Lemay Ferry and Fanny, the plaintiffs’ car began its turn directly in his path. The defendant applied his brakes and swerved to his left. The front right end of his car struck the rear right side of the plaintiffs’ car. After impact, the defendant lost control of his automobile, which traveled onto the sidewalk and struck a wall over one hundred feet from the intersection. As a result of the collision, plaintiff Mae Hill was thrown from thO car and seriously injured.

The plaintiffs raise four points on appeal. Plaintiff Mae Hill contends that the trial court erred in failing to submit excessive speed as an alternative theory of the defendant’s negligence in a verdict directing instruction on her behalf. Plaintiff Chesley Hill claims that the court erred in omitting from his humanitarian submission the claim that the defendant was negligent in failing to sound a warning. The plaintiffs also allege that the trial court erred in admitting testimony of the speed limit on Lemay Ferry Road. The final point raised by the plaintiffs is a claim that the trial court abused its discretion by sustaining the defendant’s objection to a question asked by the plaintiffs’ counsel during voir dire examination.

The plaintiffs concede, and it is well established, that improper acts of negligence submitted by instructions to the jury must be supported by sufficient evidence. Cook v. Cox, 478 S.W.2d 678, 680 (Mo.1972); Wolfe v. Harms, 413 S.W.2d 204, 210 (Mo.1967); Rakestraw v. Norris, 478 S.W.2d 409, 416 (Mo.App.1972); Shelton v. Bruner, 449 S.W.2d 673, 676 (Mo.App.1969);' MAI No. 1.02 Committee’s Comment; MAI No. 17.02 Notes on Use. Thus, there must be sufficient evidence to support the alleged improper acts of excessive speed and failure to warn before these theories can be presented to the jury.

Plaintiff Mae Hill offered Instruction B which read as follows:

“Your verdict must be for plaintiff Mae Hill if you believe: First, defendant either:
failed to keep a careful lookout, or drove at an excessive speed, or defendant knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have slackened his speed but defendant failed to do so, and
Second, defendant’s conduct, in any one or more of the respects submitted in paragraph First, was negligent, and
Third, such negligence directly caused or directly contributed to cause damage to plaintiff Mae Hill.” (emphasis added)

The court refused to submit this instruction to the jury and in its place read to the jury Instruction No. 4 which was identical in all respects to Instruction B with the exception that “drove at an excessive speed” was omitted from the first paragraph. The plaintiff contends that there was sufficient evidence to support the inclusion of her excessive speed theory. She notes that the intersection of Lemay Ferry and Fanny is located in a commercial area. At one corner of the intersection is a gasoline service station, on another corner is an ice cream store and within two hundred feet of the intersection is a drive-in hamburger restaurant. All of these business establishments were open at the time of the accident. The intersection was controlled by a flashing amber light, and there was testimony to the effect that the defendant failed to slow down when approaching the intersection. The plaintiff contends that the evidence demonstrated that the defendant continued to drive at approximately 30 m. p. h. when he saw or should have seen the plaintiffs’ car approaching with its left-turn signal on. The plaintiff also points to the testimony of a professional engineer who testified as to stopping distances of an automobile driven at various speeds, which indicated that the defendant could have slowed or stopped his car and thereby avoided the collision. Finally, the plaintiff claims that the final resting place of the defendant’s car is an indication that he was driving at an excessive speed. Relying on all these factors, the plaintiff asserts that the speed the defendant was traveling was excessive under the circumstances and that a jury issue had been made.

Whether speed is excessive depends on the condition of the road as well as surrounding circumstances. Yaeth v. Gegg, 486 S.W.2d 625 (Mo.1972); Wolfe v. Harms, supra; Bear v. Devore, 176 S.W.2d 862 (Mo.App.1944). As stated in Bear v. Devore, supra, “[t]he question is whether or not the rate of speed, whatever it was, was excessive in view of the surrounding facts, conditions and circumstances of which defendant had actual or implied knowledge.” 176 S.W.2d at 864.

Cases where Missouri courts have upheld excessive speed allegations under particular conditions and circumstances are: when an accident occurred at a 6-way intersection in a business district, Wolfe v. Harms, supra; when a head-on collision occurred on an icy county road, Calvert v. Super Propane Corp., 400 S.W.2d 133 (Mo.1966); when an approaching car swerved several times into the defendant’s lane and the defendant continued to drive at essentially the same speed, Berry v. Harmon, 329 S.W.2d 784 (Mo.1959); when the accident occurred during the rush-hour and the roads were wet, Rakestraw v. Norris, supra; and when the road was wet, vision was obstructed by bushes and a solid line of parked cars narrowed the width of the street, Janicke v. Hough, 400 S.W.2d 645 (Mo.App.1966).

However, it has been held that an excessive speed case was not made when the weather was clear, the road was straight and dry and the defendant was familiar with the area, was not exceeding the speed limit and had a clear and full view of what was ahead of him. Harris v. Goggins, 363 S.W.2d 717 (Mo.App.1962). See also Pitts v. Garner, 321 S.W.2d 509 (Mo.1959), which in addition to the factors listed above, looked to the condition of the defendant’s car as well as to whether the defendant had been drinking or if he was fatigued.

In the case at bar the evidence is insufficient to warrant the submission of the case on a theory of excessive speed. It is undisputed that at the time of the accident the road was dry and the weather was clear. Although the intersection of Lemay Ferry and Fanny can be viewed as a commercial intersection, it is also undisputed that there was little if any traffic on the road when the accident occurred. The defendant was driving within the speed limit, and there was no evidence of drinking or fatigue or any operating defects in defendant’s automobile. Although the resting place of the defendant’s car after the accident can be a factor that the jury could consider in determining excessive speed when other evidence of excessive speed is present, Marshall v. Bobbitt, 482 S.W.2d 439 (Mo.1972); Wolfe v. Harms, supra; standing alone, this fact is not sufficient evidence of excessive speed. See Yaeth v. Gegg, supra; Rakestraw v. Norris, supra. The other factors that the plaintiff claims create sufficient evidence of excessive speed (that this was a controlled intersection; that the car the plaintiff was riding in approached with its left-turn signal on; and that the defendant had adequate time to stop) really go to the negligence theories of failure to keep a look-out and failure to slacken speed under which the case was submitted to the jury. We thus hold that the trial court did not err in omitting from plaintiff Mae Hill’s verdict directing instruction her suggested theory of negligence based on excessive speed.

The plaintiffs’ second point on appeal deals with the trial court’s failure to include in plaintiff Chesley Hill’s humanitarian submission to the jury the claim that the defendant was negligent in failing to sound a warning. The trial court refused to give the following instruction offered by Chesley Hill:

“Your verdict must be for the plaintiff Chesley Hill whether or not plaintiff was negligent if you believe:
First, plaintiff’s wife was in a position of immediate danger of being injured and was injured, and
Second, defendant knew or by using the highest degree of care could have known of such position of immediate danger, and
Third, at the moment when defendant first knew or could have known of such position of immediate danger, defendant still had enough time so that by using the means available to him and with reasonable safety to himself and all others and by using the highest degree of care, he could have avoided injury to plaintiff’s wife by either slackening his speed, or swerving, or sounding a warning, and
Fourth, defendant negligently failed to so slacken his speed, swerve, or sound a warning, and
Fifth, as a direct result of such failure, plaintiff’s wife was injured and plaintiff thereby sustained damage.” (emphasis added)

The trial court did read to the jury Instruction No. 5 which included plaintiff’s theory of failure to slacken speed and failure to swerve but which excluded plaintiff’s theory of failure to warn.

A defendant’s duty to act under the humanitarian doctrine arises once it becomes apparent or should have become apparent to him that the plaintiff is in a position of imminent or immediate peril. Wilson v. Toliver, 305 S.W.2d 423 (Mo.1957); Hood v. Heppler, 503 S.W.2d 452 (Mo.App. 1973); Jeffries v. Saalberg, 448 S.W.2d 288 (Mo.App.1969). “The peril truly must be imminent — that is, certain, immediate, and impending . . . . A likelihood or bare possibility of injury is not sufficient to create imminent peril.” Hood v. Heppler, supra, 503 S.W.2d at 456. After establishing that he was in a position of imminent or immediate peril, the plaintiff has the burden of showing that the defendant could have avoided the accident. Vietmeier v. Voss, 246 S.W.2d 785 (Mo.1952); Johnson v. Bush, 418 S.W.2d 601 (Mo.App.1967). When a humanitarian case is based upon a failure to warn, the plaintiff must show more than he would have to under a humanitarian case based on a failure to swerve, slacken speed, or stop. As stated in Vietmeier v. Voss, supra, 246 S.W.2d at 789:

“The theory of failure to stop is predicated solely upon the basis that if the defendant himself had caused the instrumentality to be stopped that the injury would have been thereby avoided. But when plaintiff’s theory and submission is predicated upon defendant’s failure to warn there is presupposed (and time must be allowed for) a timely co-operative action by plaintiff in which to heed the warning and escape injury.”

Thus, the plaintiff must show that the defendant had sufficient time to sound a warning and that the plaintiff had sufficient time after hearing the warning to free himself from the peril.

In this case, the plaintiff came into a position of imminent peril when he began his left turn in the path of the defendant’s oncoming car. The plaintiff introduced into evidence various calculations of a professional engineer. He testified-that the arc the plaintiff’s car traveled in making its left turn was 45 feet long.. If the car commenced the turn traveling at a speed of 5 m. p. h., it would have taken four seconds to reach the point of impact. If the turn was commenced from a stopped position it would have taken 6 seconds for it to reach that point. The engineer also testified to the distances a car would travel going various specified speeds over 4 second and 6 second intervals. He also testified as to the stopping distances, accounting for reaction time, of a car traveling at these speeds. The stopping distance figures submitted by plaintiffs’ engineer indicate that the defendant could have stopped his car or slackened his speed to avoid the accident. As was noted above, the case was submitted to the jury on the theories of failure to slacken speed and failure to swerve. But no attempt was made to show how much time would be required for the defendant to sound a warning, for the plaintiff to hear it and then accelerate through his turn to escape the defendant’s path of travel. Further, the undisputed evidence showed that when the defendant did see the plaintiff cross in front of him, he did apply his brakes and swerve to his left. As was stated in Pitts v. Garner, supra, 321 S.W.2d at 515:

“When a situation suddenly confronts a driver and he has time to stop, swerve or slacken speed, or attempt to do so, but does not have sufficient time to do these acts and also sound a horn, his election to attempt to stop or swerve or slacken his speed does not necessarily mean he was negligent in failing to sound his horn.”

We find that a submissible case has not been made on the theory of failure to sound a warning. From what evidence is in the record, the jury would have been forced to speculate as to what effect a warning would have had. “[A] humanitarian case which leaves one or more of the essential elements to guesswork, speculation or conjecture is not for the jury.” Hood v. Heppier, supra, 503 S.W.2d at 457.

The plaintiffs assert that the trial court erred in admitting both evidence of the speed limit of Lemay Ferry Road and evidence that the defendant was not exceeding it at the time of the accident. The plaintiffs allege that this testimony was irrelevant to the question of excessive speed and highly prejudicial. We agree with the plaintiffs that the mere fact that a person was driving at the posted speed limit does not absolve him of liability if his speed is found to be excessive under the circumstances. There are numerous cases which have stated that speed may be excessive even though the driver was obeying the speed limits, e. g., Wolfe v. Harms, supra; Rakestraw v. Norris, supra; Janicke v. Hough, supra. However, when determining if speed is excessive under the circumstances, it is proper to look to the posted speed limit and if the driver was exceeding it. Pitts v. Garner, supra; Harris v. Gog-gins, supra. Thus, evidence of the speed limit on Lemay Ferry Road was admissible.

The last point raised by the plaintiffs is their contention that the trial court abused its discretion in sustaining the defendant’s objection to a question asked of the jury panel during voir dire examination. Counsel for the plaintiffs attempted to ask the following question:

“MR. KIRBY (Plaintiffs’ counsel): Now, as I mentioned to you here, Mrs. Hill was a passenger in the car and her husband was a driver of the car, and Mr. Boling is the defendant in the case. Being a passenger in the car, and the Court will give you the instructions in the case, you are in sympathy with the rule where a passenger can recover against a wrongdoer even though her driver may have been partially at fault?”

In considering the proper scope of voir dire examination, two principles must be kept in mind as are set out in Barnes v. Marshall, 467 S.W.2d 70 (Mo. 1971): “It is fundamental in our jury system that litigants are entitled to unbiased and unprejudiced jurors. And in order to obtain such they should be allowed a reasonable latitude in examining prospective jurors on voir dire.” 467 S.W.2d at 76. The court went on to say: “[0]f necessity, a trial judge is vested with a broad discretion in controlling the voir dire examination arid his rulings should not be disturbed unless they clearly and manifestly indicate an abuse of such discretion.” 467 S.W.2d at 76. Several limitations exist on the latitude allowed counsel in discovering bias, some of which are relevant here. He may not tell the panel what the court’s instructions will be, Littell v. Bi-State Transit Development Agency, 423 S.W.2d 34, 38 (Mo.App.1967), or inform the jury as to the law, State v. Smith, 422 S.W.2d 50, 68 (Mo. banc 1967) cert, denied, 393 U.S. 895, 89 S.Ct. 150, 21 L.Ed.2d 176 (1968). When counsel seeks to uncover bias as to the law, as counsel tried to do here, he should follow the procedure set out in State v. Mosier, 102 S.W.2d 620, 624 (Mo.1937):

“The correct procedure is for counsel to ask the members of the panel whether, if the court later instructs them in a specified manner, they have any opinion or conscientious scruples such as would prevent them from returning a verdict accordingly . . . .”

Using this standard, the Missouri Supreme Court held in Duensing v. Huscher, 431 S.W.2d 169, 172 (Mo.1968), that the following question was properly allowed in a suit seeking punitive damages:

“I’m going to ask the jury whether or not- — if the Judge instructs you on punitive damages in this case, whether or not you have any reservations in your mind against applying the law?”

See also Littell v. Bi-State Transit Development Agency, supra, 423 S.W.2d at 36. In an obscenity case, however, counsel was not permitted to question the panel of veniremen concerning their belief in the principles of presumption of innocence, burden of proof, and reasonable doubt. In affirming the trial court, the Missouri Supreme Court held that the questions merely sought to reveal the personal feelings of the jurors as to whether they thought the law was good or bad. The court felt this was irrelevant “unless with respect to those rules they entertained views so unyielding as to preclude them from following the law under the court’s instructions. Defendant counsel did not indicate any intention to question in this area.” State v. Smith, supra, 422 S.W.2d at 68.

From the above authorities, it follows that questions seeking to reveal bias as to the law must focus on whether any personal beliefs of the prospective jurors would prevent them from following that law if so instructed by the court. The question not permitted in the case at bar is not presented in such a manner. On its face the question appears to tell the jury what the court will instruct. By using the phrase “are you in sympathy with,” counsel seems to be asking whether the members of the panel think that the rule is a good one. The question does not ask them whether they would be unable to follow the rule, if so instructed, due to some personal conviction. For these reasons, we cannot say that there was error in sustaining the defendant’s objection to the question.

The judgment is affirmed.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . The conclusions reached by the engineer as to stopping distances at certain speeds were:
      Distance traveled in Speed 4 seconds Distance traveled in Stopping 6 seconds distances
      20 m. p. h. 116' 174' 41' (22')
      25 m. p. h. 148' 222' 58' (28')
      30 m. p. h. 176' 264' 76' (33')
      The distances indicated in parenthesis are reaction distances, the distance the car would travel at a specific speed during the 3/4 second it takes for a driver to react to an emergency. These distances have been accounted for in the total stopping distances indicated.


author: ROBERT R. WELBORN, Special Judge.

text:
    Junetta ALLEN, Respondent, v. DOROTHY’S LAUNDRY AND DRY CLEANING COMPANY, Employer, and Miller’s Mutual Insurance Agency of Illinois, Insurer, Appellants.
    No. KCD 27279.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.
    Motion for Rehearing and/or Transfer Denied June 2, 1975.
    Application to Transfer Denied July 14, 1975.

      John C. Russell, Raytown, for appellants.
    John C. Milholland, A. J. Anderson, Har-risonville, for respondent.
    Before SWOFFORD, P. J., and ROBERT R. WELBORN and ANDREW J. HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Workmen’s Compensation proceeding. Referee of Division of Workmen’s Compensation denied claim for death benefit. Industrial Commission affirmed ruling of referee. Circuit court reversed and ordered allowance of claim. Employer and insurer appeal.

The decisive facts are set out in the findings of the referee, as follows:

“I find from the evidence that on April 21, 1972 [Orville T. Allen] was shot by a berserk rifleman on the streets of Harrison-ville, Missouri, and that as a result of such shooting the employee died on April 24, 1972. At the time of the shooting the deceased was in the process of delivering laundry to Capitol Cleaners, a laundry and dry cleaning establishment located just off of the square in Harrisonville. Just prior to the shooting of the employee, the rifleman had shot and killed two Harrisonville policemen and subsequently shot and wounded the sheriff of Cass County. For a period of several months prior to April 21, 1972 the square in Harrisonville had been frequented by groups of young people described as ‘hippies’ who on occasion blocked traffic on the streets around the square, directed profane language at citizens around the square and engaged in other breaches of the peace. However, there were no incidents involving the use of guns prior to the shooting on April 21, 1972. The killers’ (sic) motive is obscure, but the evidence would tend to indicate that he was a radical protestor of some sort rebellious against society in general.

“The first issue for decision is whether the deceased Orville T. Allen, was an employee of the alleged employer, Dorothy’s Laundry and Dry Cleaning Company, while engaged in delivering laundry pursuant to an arrangement for such delivery between the alleged employer and Capitol Cleaners. [The affirmative finding on this issue is not controverted. The basis of the finding is, therefore, omitted.]

“The second issue for decision is whether the employee sustained an accident arising out of his employment. The claimant [widow of employee] contends that the case is compensable under the so-called ‘street risk doctrine’ and/or the ‘assault doctrine’, and under the latter more particularly since the 1969 amendment of Sec. 287.120 RSMo 1969 [V.A.M.S.] defining the term ‘accident’ to include ‘injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.’

“The ‘positional risk theory’ which makes an accident compensable if claimant’s employment caused him to be at the place where it happened has not been accepted or followed in Missouri. Liebman v. Colonial Baking Company, [Mo.App.] 391 S.W.2nd, 948. Likewise, the Liebman case is authority for the proposition that the risk of assault is not a hazard of the street within the meaning of the ‘street risk doctrine.’ I find, therefore, that claimant cannot recover on either the ‘positional risk theory’ or ‘street risk doctrine’ upon the facts presented.

“With respect to the ‘assault doctrine’ I find that the case at hand is one of ‘neutral origin’, meaning that the assault was not attributable to the employment on any more rational basis than that the employment offered convenient occasion for the attack to take place. Such an assault has not been heretofore held compensable in Missouri. Liebman v. Colonial Baking Company, 391 S.W.2nd, 948.

“I find that the assault upon the employee was unprovoked and accordingly conclude that he sustained an ‘accident’ as that term is contemplated by Section 287.020-2 and Section 287.120 — 1 as amended, RSMo 1969, [V.A.M.S.]. However, I further find such accident did not arise out of the employment. If it was the intention of the legislature to change the law which heretofore made situations like those found in the Liebman case and Kelley v. Sohio Chemical Company, [Mo.] 392 S.W.2nd, 255 not com-pensable, the term ‘accident’ used in the amendment, should have been expanded to read ‘accident arising out of and in the course of the employment.’ ”

The circuit court disagreed with the referee’s conclusion as to the meaning and effect of § 287.120, subd. 1, RSMo 1969, V.A.M.S., and concluded that the 1969 amendment, referred to by the referee, made an unprovoked assault in the course of employment a compensable accident. This was a conclusion of law and appellants’ contention that the circuit court’s action was a prohibited substitution of its conclusion for a factual finding of the referee is ■ without merit. § 287.490, subd. 1, RSMo 1969, V.A.M.S.

The language of § 287.120, subd. 1, referred to by the referee and the matter at the crux of the issue here presented, is the last sentence of the subparagraph, which in its entirety reads:

“If both employer and employee have elected to accept the provisions of this chapter, the employer shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person. The term ‘accident’ as used in this section shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.”

The last sentence was added by the General Assembly in 1969. Laws of Mo. 1969, p. 390. The amending legislation made this sole change. In attempting to arrive at the proper meaning and effect of the change, a look at the law as it stood at the time is in order.

In Liebman v. Colonial Baking Company, 391 S.W.2d 948 (Mo.App.1965), the law of this state regarding the compensability of injury resulting from assault upon a workman is well summarized (391 S.W.2d 951— 952):

“The assault doctrine has been fully developed in Missouri. It is possible to illustrate its scope and method by examples remarkably free of the contradictions that have attended its use in some other jurisdictions. Assaults divide conveniently into three classes. Larson’s Workmen’s Compensation Law, Sec. 7, p. 48 et seq.; Sec. 11, p. 131 et seq.; Kelly [Kelley] v. Sohio Chemical Co., Mo.App., 383 S.W.2d 146, 147.

“1st: Those which are invited by the dangerous nature of the employee’s duties, or by the dangerous environment in which he is required to perform them, or are the 'outgrowth of frictions generated by the work itself, but which, in either event, are invariably revealed to be the result of some risk directly attributable to the employment. Injuries resulting from assaults of that character are compensable in Missouri.

“2nd: Those committed in the course of private quarrels that are purely personal to the participants. Injuries resulting from assaults of that character are non-eompen-sable in Missouri. * * *

“3rd: Irrational, unexplained or accidental assaults of so-called ‘neutral’ origin, which, although they occur ‘in the course of’ the victim’s employment, cannot be attributed to it on any more rational basis than that the employment afforded a convenient occasion for the attack to take place. In some jurisdictions that circumstance is regarded as a sufficient reason for awarding compensation; but not in Missouri. * *

“In every Missouri case involving an assault of ‘neutral’ origin compensation has been denied. The rationale in each, insofar as it is pertinent to the issue before us, has been that the risk of unprovoked assault is no more logically attributable to one man’s employment than to another’s unemployment, and that the mere fact that the employment provided a convenient opportunity for the assault to take place, as by bringing the victim and his assailant together at the point where it occurred, is insufficient to establish any causal connection between the employment and the injury, or to show that the latter was a rational consequence of the former.”

A short time later, the assault doctrine was before the Supreme Court en bane in Kelley v. Sohio Chemical Company, 392 S.W.2d 255 (1965). In that case, employee, alone in the office of her employer, heard footsteps and when she turned was struck in the head. She was found unconscious sometime later. The employee did not know the assailant. Nothing had been disturbed in the office. In affirming the denial of compensation the court held that the claimant had failed to sustain her burden “to show some direct causal connection between the injury and the employment.” 392 S.W.2d 257. Two judges dissented in Kelley. They would have applied the rule that “when an employee charged with the performance of a duty is found injured at a place where his duty required him to be, a presumption arises that he was injured in the course of and in consequence of his employment; ⅜ 0 ⅞.” 392 S.W.2d 259.

Appellants’ first contention here is that the 1969 amendment did not alter the requirement of the remainder of the section that the assault arise out of and in the course of the employment. Without conceding that it in fact does so, appellants alternatively advance the suggestion that the amendment might in effect provide a statutory basis for the presumption which the dissenters sought to apply in Kelley, but still permit a rebuttal of the presumption by evidence showing that the assault did not arise out of the employment. They contend that there was evidence here which explained the assault so that the referee was authorized to conclude as he did that the injury was not the result of an accident in the course of employment.

The respondent predicates the 1969 amendment upon a perceived necessity to change the law as applied in Kelley. She contends that the legislature by the amendment intended to and did make “unprovoked assaults” compensable accidents. Her contention is that the meaning and effect of the amendment is the same as it would have been had the legislature provided: “The term ‘accident arising out of and in the course of his employment’ shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.”

As a starting point for the resolution of the problem presented, it must be presumed that the legislature, by the 1969 amendment, intended to change or clarify the existing law. “In the construction of statutes, the courts start with the assumption that the legislature intended to enact an effective law, and the legislature is not to be presumed to have done a vain thing in the enactment of a statute.” 73 Am.Jur.2d, Statutes, § 249, p. 422 (1974). The difficulty here arises because the change was attempted to be made by addition of a statutory definition of the term “accident” as used in § 287.120. The term “accident” is elsewhere defined in § 287.020, subd. 2. That is the definition which has given rise to the problem presented by cases such as the “abnormal strain” situations. See Carroll, “Present Concept of Accident under Missouri Workmen’s Compensation Law,” 21 Mo.Bar Journal 208 (1965). The assault cases actually presented no problem under § 287.020, subd. 2, because the injury resulting from an assault was not questioned as having been the result of an “accident.”

The problem with assaults was not whether the incident was an accident, but whether it was an accident “arising out of and in the course of his employment” under § 287.120. The analysis of the assault cases in Liebman, supra, clearly shows the problem which those cases presented. However, if appellants’ primary analysis of the effect of the 1969 amendment is to be accepted, the effect of the amendment would be to have written into § 287.120 a superfluous definition of the term “accident,” while retaining the requirement that the assault arise out of and in the course of employment. To adopt such a construction would convict the General Assembly of having enacted a meaningless piece of legislation, a result to be avoided if any other logical, rational construction of the amendatory legislation is permissible.

Appellants’ alternative suggestion that the amendment was intended to apply only to “unexplained” assaults, such as in the Kelley case, would require the insertion of that limitation in the amendatory langage, which is directed only at “unprovoked” assaults.

Turning to respondent’s construction of the statute, she relies on the presumption that the amendment was designed to have some meaning and effect. She also points to § 1.010, RSMo 1969, V.A.M.S., calling for the liberal construction of acts of the General Assembly “so as to effectuate the true intent and meaning thereof.” Although not mentioned by respondent, note also is to be taken of § 287.800, a legislative declaration applicable expressly to the Workmen’s Compensation Law, calling for its liberal construction “with a view to the public welfare * * Respondent argues that the legislature clearly intended to bring injury or death resulting from an unprovoked assault within the coverage of the Workmen’s Co.mpensation Act, and that the legislature accomplished this purpose by making the definition of “accident” applicable to the term “as used in this section,” inasmuch as the term is used in § 287.120 to describe only “compensable accident.” She concludes that since the term “accident” in § 287.120 is used in connection with the language “arising out of and in the course of his employment” the meaning of the amendment is the same as if it actually read: “The term ‘accident arising out of and in the course of his employment’ shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.”

Acceptance of this construction is difficult, however, inasmuch as it would eliminate both the requirement that the assault occurred in the course of employment and that it arise out of the employment. Inasmuch as the problem in assault claims arises with respect to the latter requirement, there would appear to have been no reason for the elimination of the first requirement, which was found to have been met in this case.

Although the language of the 1969 amendment leaves considerable to be desired, considering the problem which the amendment appears to have been intended to solve, the requirement that effect be given the amendment, if at all possible, the requirement of liberal construction of the law, and the oft-stated principle that doubts in the construction of the Workmen’s Compensation Law are to be resolved in favor' of the employee (Henderson v. National Bearing Division, 267 S.W.2d 349, 353[4] (Mo.App.1954); Baer v. City of Brookfield, 366 S.W.2d 469, 471[6] (Mo.App.1963); Todd v. Goostree, 493 S.W.2d 411, 416[1 — 6] (Mo. App.1973)), the trial court properly construed the amendment to eliminate in this case of a “neutral” unprovoked assault which arose in the course of employment, the necessity for an affirmative showing that the assault arose out of the employment. The 1969 amendment to § 287.120, in defining “accident” to include an unprovoked assault supplies that requirement for a compensable claim in a case such as this. Therefore, the trial court correctly rejected the holding of the referee and the Industrial Commission that the 1969 amendment did not have such effect.

Judgment affirmed.

All concur.


author: STERNBERG, Justice.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Mildred CAUDILL and Brooklyn Caudill, husband, Appellees.
    Court of Appeals of Kentucky.
    May 23, 1975.
    Jim D. Robinson, Gen. Counsel, Asst. Atty. Gen., Dept, of Highways, Frankfort, Roger R. Cantrell, Ashland, for appellant.
    Earl R. Cooper, Salyersville, S. H. Johnson, Paintsville, for appellees.
   STERNBERG, Justice.

The appellees, Mildred Caudill and Brooklyn Caudill, were awarded $15,000 by a jury as compensation for the condemnation by the Department of Highways of 10.37 acres of land in fee simple and a 0.28 permanent easement. The property was condemned in conjunction with the reconstruction of U. S. Highway 460 between Salyersville and Paintsville, in Ma-goffin County. The condemned property was a portion of a larger tract owned by the appellees, and was located approximately five miles from Salyersville on Mash Fork Road. Before the taking the tract consisted of a total of 169.7 acres. Of this, approximately 9.5 acres were level bottom land. The remaining 160.2 acres were hill land. A one and one-half story frame residence stood on the level portion of the property. Other improvements included a stock and tobacco barn, a pump house, a chicken house, a brooder house, and a concrete-block cellar.

The taking consisted of 2.88 acres of bottom land and 7.77 acres of wooded hill land. No improvements were affected by the taking. Two permanent easements were acquired by the Department of Highways for the purpose of constructing drainage ditches. Appellees’ remaining bottom land was divided into three portions by these two easements.

The Commonwealth appeals on the grounds that: (1) the application for a jury view of the subject property was wrongfully denied, and (2) the verdict is excessive and unsupported by sufficient probative evidence.

Appellant argues that the trial court committed error when it refused appellant’s application to have the jury view the subject property. KRS 177.087(1) allows either party to request that the jury view the property. In relevant part, that statute provides:

“ * * * All questions of fact pertaining to the amount of compensation to the owner or owners shall be determined by a jury, which jury, on the application of either party, shall be sent by the court, in the charge of the sheriff, to view the land and material. * * * ”

In Commonwealth, Department of Highways v. Hamilton, Ky., 495 S.W.2d 187, it was held that the requirement of KRS 177.087(1) is mandatory unless “unusual or extreme circumstances” exist. Unusual circumstances were found in Commonwealth, Department of Highways v. Jewell, Ky., 405 S.W.2d 678, because the route to the property was so rough and inaccessible that some of the jurors were physically unable to make the journey. In Commonwealth, Department of Highways v. Hackworth, Ky., 400 S.W.2d 217, the trial judge was upheld in his decision to restrict the jury view to the exterior of the house. The unusual circumstances were that the house which was taken had been purchased from the Commonwealth by the condemnee, moved to another location prior to the trial, and substantial alterations and additions had been made.

In the instant case, the trial judge based his decision to refuse a jury view of the property on the following factors:

(1)The property to be taken was not marked by stakes;
(2) A jury view of the property would require a five-mile trip, a short distance of which would be on an unpaved road; and
(3) The jury view of the property would cause inconvenience and delay in the trial.

These factors are not the “unusual or extreme circumstances” contemplated by the Hackworth and Jewell cases, supra. The fact that the property to be taken is not. delineated by stakes or flags is of no particular consequence, since these details may be established for the jury by testimony. Cf. Commonwealth, Department of Highways v. Hamilton, supra. Obviously, a five-mile excursion to the property site is not analogous to the physically impossible “journey of two miles or more over fences and rough terrain”, considered in the Jewell case, supra. Finally, the delay in the trial of the instant case, which may be occasioned by a jury view of the property, is not such an unusual or extreme circumstance that would justify denying a jury view of the property.

In the instant case, the facts disclosed do not justify the trial judge’s decision to disregard the mandatory provision of KRS 177.087(1).

Inasmuch as this case must be reversed for failure of the trial judge to permit a jury view of the property, we express no opinion on any other álleged irregularity complained of by the appellant.

The judgment is reversed and the case remanded to the trial court for further proceedings consistent with this opinion.

All concur.


author: PALMORE, Justice.

text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Appellant, v. EASTERN COAL CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    June 6, 1975.
    Earl M. Cornett, Gen. Counsel, Dept, of Labor, Joe A. Newberg, Asst. Counsel, Dept, of Labor, Frankfort, for appellant.
    Baird ■ & Baird, Herbert Deskins, Jr., Pikeville, for appellees.
   PALMORE, Justice.

After working underground in coal mines for more than 36 years, Elliott Fletcher quit work on February 23, 1973, because of physical disability resulting from pneumo-coniosis. In his compensation proceeding against Eastern Coal Corporation and the Special Fund the board found that he was totally and permanently disabled by reason of pneumoconiosis incurred in the course of his employment as a coal miner and found also that the disability had been conclusively proved to be the result of his last injurious exposure, which was with Eastern Coal Corporation, the last employer.

Upon the employer’s appeal the circuit court held that the evidence before the board did not support its finding that Fletcher’s disability had been conclusively proved to be the result of his work experience with Eastern. The circuit court therefore apportioned liability 75% to the Special Fund and 25% to the employer rather than 40% to the Special Fund and 60% to the employer. See KRS 342.316(13)(a). The Special Fund appeals.

Eastern was Fletcher’s employer for the entire 36 years of his work as a coal miner except for two days in 1948, when he did the same type of work for another mining company. Upon reaching the point of disability in 1973 he had been experiencing shortness of breath for five or six years, and some 25 years had elapsed since the two-day episode of exposure with another employer. The several physicians whose examinations disclosed the presence of pneumoconiosis testified that the disease was in an early stage of advancement, category l/2(p), 2/l(q) or 2/2(p & q). Though all testified that the disease must be attributed to his entire work experience in the mines, and that any two-day exposure during that experience would be as significant as any other two-day exposure, including the last two days, only one of these witnesses, Dr. R. P. O’Neil, undertook to estimate the period of time required for the disease to develop. None of them was asked to state whether Fletcher could have been affected by a two-day exposure occurring 25 years before the disease reached the stage at which they found it in 1973. According to Dr. O’Neil, “it is generally conceded that it takes approximately ten years to develop coal workers’ pneumoconiosis.”

In Childers v. Hackney’s Creek Coal Company, Ky., 337 S.W.2d 680 (1960), the claimant had worked for his last employer for 23 months after having contacted silicosis in its initial stage or stages while working for a previous employer. Then, as now, the statute fixed responsibility upon the employer in whose service the claimant was “last injuriously exposed” to the hazard of that disease, and we held that the duration of such exposure with the last employer was immaterial. Later, in Davis v. Harlan Everglow Coal Company, Ky., 392 S.W.2d 62 (1965), it was held that an exposure of three days was sufficient to fix responsibility on the last employer. See also Blue Diamond Coal Company v. Napier, Ky., 337 S.W.2d 879 (1960), in which the duration of the last injurious exposure was three and one-half years.

All of these cases involved the duration of injurious exposure with the last employer. Nevertheless, the same principle must apply to previous periods of employment when the question is whether it has been conclusively established that the disease resulted solely from the last employment, and if there is a reasonable probability that a previous employment was to some degree a contributing factor. In view of the medical testimony to the effect that the disease resulted from Fletcher’s whole experience in the mines, covering 36 years, it cannot be said to have been conclusively proved that it was attributable solely to his exposure during the employment with Eastern.

The judgment is affirmed.

All concur.

      . To the extent that Davis v. Harlan Ever-glow Coal Company is based on the premise that a return to work after a layoff of several months precludes a finding that the worker was already in fact totally disabled by reason of an occupational disease, it was overruled in Yocom v. Karst, Ky., (May 23, 1975).


author: VANCE, Commissioner.

text:
    James R. YOCOM, Commissioner, etc., et al., Appellants, v. Willie PRICHARD et al., Appellees.
    Court of Appeals of Kentucky.
    June 6, 1975.

      Thomas L. Ferreri, Louisville, Earl M. Cornett, Gen. Counsel, Dept, of Labor, Frankfort, for appellants.
    John E. Anderson, Jr., Earl L. Cole, Cole, Cole & Anderson, Barbourville, J. Keller Whitaker, Director, Workmen’s Compensation Bd., Frankfort, for appellees.
   VANCE, Commissioner.

Appellee, Willie Prichard, filed a claim for Workmen’s Compensation on January 23, 1973, alleging that he became affected with the disease of pneumoconiosis on March 27,1971. He ceased working on that date because he was “not able to do the work.” He was examined by a physician in March 1971 who discovered that he suffered from silicosis and advised him at that time not to return to the mines.

Appellee filed his claim for compensation twenty-two months after his last exposure to the hazards of the disease; twenty-two months after he had experienced prolonged shortness of breath, smothering and a chronic cough; and twenty-two months after he had been advised by a physician that he had contracted silicosis.

The Workmen’s Compensation Board denied his claim on the basis of KRS 342.-316(3) which bars a claim for compensation for occupational disease unless it is filed within one year after the last injurious exposure or within one year after the employee first experiences a distinct manifestation of occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted the disease, whichever event shall last occur.

On appeal to circuit court, a judgment was entered remanding the case to the Workmen’s Compensation Board for a finding of fact as to the date when appellee became aware that he was suffering from a disability caused by occupational disease. The Special Fund has appealed.

We conclude that it was error to remand the case to the board for further fact-finding. The board found that the claim was not filed within the time limits prescribed by KRS 342.316(3). The evidence plainly shows this finding to be correct.

It is true of course that appellee could not file a claim until he suffered a disability. In this case plaintiff claimed a disability commencing March 27,1971. His own testimony and his medical testimony supports his contention that he was disabled at that time. He was informed by his physician that he had contracted silicosis in March 1971.

The findings of the board are not clearly erroneous. They support the dismissal of the claim and no further findings are necessary.

The judgment is reversed with direction to enter a new judgment upholding the order of the Workmen’s Compensation Board dismissing the claim.

All concur.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ed GIBSON et al., Appellees.
    Court of Appeals of Kentucky.
    May 23, 1975.
    Jim Robinson, Gen. Counsel, Asst. Atty. Gen., Dept, of Highways, Frankfort, Nicholas D. McCubbin, Winchester, for appellant.
    Denver Adams, Hyden, for appellees.
   VANCE, Commissioner.

The Department of Highways appeals from an award to the appellees of $8,000.00 for the taking of 4.63 acres from a tract of land consisting of 7.93 acres. We reverse.

The principal ground of error alleged by the appellant is the refusal of the trial judge to admit testimony by appellant’s witness concerning the actual sales price of the subject property which was sold twice in the three-year period preceding the taking, once for $3,000.00 and once for $3,500.00.

The price paid for property which is the subject of condemnation is admissible if the sale is a voluntary, bona fide transaction not so remote in point of time as to destroy its probative value. Commonwealth, Department of Highways v. Whit-ledge, Ky., 406 S.W.2d 833 (1966); 5 Nichols’, The Law of Eminent Domain, 3rd Edition, § 21.2.

Appellees contend the rejection of the proffered evidence was proper because there was no showing by the department that the sale was voluntary or that it was a bona fide transaction.

It is common practice for real estate appraisers to form opinions as to value based upon evidence which could not be admitted in a trial, yet the opinion as to value is admissible. An appraiser’s knowledge of the sales price of any particular tract of land may depend upon what he was told by the seller or the purchaser. In most cases he will not have any first-hand knowledge of whether the sale was voluntary or whether it was a bona fide transaction.

In Stewart v. Commonwealth, Ky., 337 S.W.2d 880 (1960), we said:

“It is quite often true that the most thorough, comprehensive and accurate professional appraisals are based almost entirely on ‘hearsay’ in the legal sense of the word. Persons who appraise or deal in real estate professionally make it their business to keep abreast of current transactions. The value of an appraisal depends very largely on the manner in which it is developed. It is of importance to the court and jury to know how it was made and on what information it was based. If some or all of that information was acquired by hearsay, but through the customary channels of the trade, or by methods recognized as standard in the making of appraisals, we see no useful purpose in a rule of absolute exclusion. * * * a

The probabilities are overwhelming that most recorded transfers of real property by deed are voluntary bona fide transactions. One who investigates the records of such transfers for use as comparable sales is entitled to proceed upon the assumption of voluntariness and testimony with respect thereto will be admitted subject to the right of the opposing party to show the transaction was not voluntary or bona fide.

Other alleged errors relied upon by the appellant may surface again in the event of a retrial of this case. We are of the opinion that the testimony of the witness, George Jones, should have been stricken because his utter unfamiliarity with the amount of land taken and the amount remaining after the taking destroyed the probative value of his opinion as to the value thereof.

On a new trial the landowner should not be permitted to testify concerning the cost of construction of a new house without making an appropriate allowance for depreciation. Commonwealth, Department of Highways v. Taylor, Ky., 400 S.W.2d 688 (1966), is not controlling because it applies only to the price tagging of elements of damage in arriving at the aftertaking value.

We find no merit in the other allegations of error.

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

All concur.