author: GUNN, Judge. KELLY, Presiding Judge,

text:
    Vincent J. FEELY et al., Plaintiffs-Respondents, v. Louis I. BIRENBAUM et al., Defendants-Appellants.
    Nos. 37743, 37736.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 24, 1977.
    Motions for Rehearing and/or Transfer Denied July 21, 1977.
    Applications to Transfer Denied Sept. 12, 1977.

      Goldstein & Carey, Kathy Carey, Stanley E. Goldstein, Clayton, for defendants-appellants.
    Schmitz & Fischer, Mary Stake Hawker, J. Peter Schmitz, St. Louis, for plaintiffs-respondents.
   GUNN, Judge.

Plaintiffs-respondents brought suit to enjoin and restrain defendants-appellants, two unrelated males, from residing together or with persons unrelated by blood, marriage or adoption at defendants’ single family residence. The trial court found that the subdivision trust indenture applicable to defendants’ residence prevented defendants from living together in their single family residence. The primary issue on appeal is whether the subdivision trust indenture proscribing the use of houses within the subdivision by more than one family interdicted defendants’ use of their house with unrelated persons. We find no error in the trial court’s interpretation of the trust indenture and affirm the judgment.

According to the stipulation of facts, defendants purchased a lot and house in a private residential area in University City known as Ames Place. The purchase was with knowledge of the recorded subdivision trust indenture which prohibited any residence lot owner “to erect or permit to be erected on said residence lots, or any of them, any flat or apartment house, or use or permit to be used any house or houses erected on any such residence lots as a flat or apartment house, or by more than one family. * * * ” (emphasis added). The trust indenture was initially recorded in 1914 and extended to 1984.

Defendants moved into their house in June, 1971, and at or about the same time a woman identified only as Marsha Back became a regular resident in the house with defendants and remained there until January, 1975. Also, in September, 1971, a male law student moved into defendants’ house to reside there for about nine months. It was agreed that none of the parties living in defendants’ Ames Place house, including defendants, was ever related by blood or marriage.

Subsequently, plaintiffs as elected representatives of the Ames Place Association and pursuant to the authority invested in them by the trust indenture to enforce its provisions, filed suit to enjoin defendants from violating the trust indenture and forbid defendants’ use of the house as other than a private residence for one family. There has been no challenge made as to the validity of the Ames Place single family stricture as it applied to the defendants’ property. Thus, the only substantive issue for the trial court’s determination was whether the group of people living in the house (or even only the two defendants) could be characterized as “more than one family” within the meaning of that term in the trust indenture. The trial court found the issue against defendants and ordered that defendants and each of them be “enjoined and restrained from both regularly and consistently residing together at 324 Melville” (defendants’ house) and “from residing regularly and consistently at said premises with any other person unrelated to him by blood, marriage or adoption.”

Before discussing the central theme of this case — the single family issue — we dispose of two tangential issues raised by defendants. Defendants argue that as defendant Friedman had filed an affidavit with the trial court of his intention to move from the premises and sell his interest in the house to defendant Birenbaum that the case is moot. However, the record fails to disclose that defendant Friedman’s intentions have been fulfilled. We thus have no evidence before us upon which to rule that the case is moot and cannot give consideration to defendants’ argument in this regard. State ex rel. Freeze v. City of Cape Girardeau, 523 S.W.2d 123 (Mo.App.1975); Davis v. Long, 521 S.W.2d 7 (Mo.App.1975).

Defendants also assert the defense of laches, claiming that although defendants moved into their house in July 1971, suit was not brought against them until November, 1972 — a 16 month lapse. Defendants argue that plaintiffs knew of defendants’ living arrangement when they moved into the house and that the delay in bringing suit wrought an injustice upon defendants who had spent many hours refurbishing their house. Again, defendants allegations as to damages were not proved. Nothing regarding damages appears in the stipulation of facts, so there is nothing for us to consider as to defendants’ alleged damages. Laclede Gas Co. v. Hampton Speedway Co., 520 S.W.2d 625 (Mo.App.1975). The record is therefore barren of proof that any disadvantage or prejudice was worked upon defendants; consequently, laches as a defense is unavailable to defendants on this appeal. L_ v. R_, 518 S.W.2d 113 (Mo.App.1974).

We now reach the cynosure of this case — whether the trial court was correct in construing defendants’ use of their house to be “by more than one family” within the meaning of the trust indenture proscription. We believe the trial court was correct in its finding and conclusion.

We recognize that there is no single definition of the word “family,” but, rather, the term has been construed according to the particular facts presented on the issue. As stated in Boyher v. Gearhart’s Estate, 367 S.W.2d 1, 5 (Mo.App.1963), “[t]he term family is one of great flexibility and is capable of many different meanings according to the connection in which it is used.” Steva v. Steva, 332 S.W.2d 924 (Mo.1960), defines family as follows, l.c. 926:

“The term ‘family’ * * * ‘has been defined as a collective body of persons under one head and one domestic government, who have reciprocal, natural, or moral duties to support and care for each other.’ ”

And in State ex rel. Ellis v. Liddle, 520 S.W.2d 644 (Mo.App.1975), a zoning ordinance was interpreted as not limiting the term “family” to persons related by blood, marriage or adoption. However, the zoning ordinance involved in Liddle specifically provided that a limited number of persons not related by blood, marriage or adoption were to be included within the term “family,” so that case is not felicitous here.

In interpreting the meaning of the words in the trust indenture restricting the use of the Ames Place homes “by more than one family,” we must look at the plain and obvious purpose of the restriction and give the terms used their ordinary and usual meaning in the connection in which they are used. Andrews v. Metropolitan Bldg. Co., 349 Mo. 927, 163 S.W.2d 1024 (1942); Greenberg v. Koslow, 475 S.W.2d 434 (Mo.App.1971); Boyher v. Gearhart’s Estate, supra. The test for determining the meaning of commonly used words “should be their ordinary and popular meaning; and they should not be construed in the broadest sense possible to include meanings to which they would not be applied by most people.” Cleaver v. Central States Life Ins. Co., 346 Mo. 548, 142 S.W.2d 474, 477 (1940). Using this gauge, can we find that the trial court erred in concluding that a group of up to four unrelated adults living together was not a “family” within the trust indenture restriction? Indeed not. We believe that within the context and purpose of the Ames Place trust indenture, the stricture on the use of each house to one family could properly be construed as intending to limit the use to a single family related by blood, marriage or adoption — as was construed by the trial court.

Ames Place is a single family subdivision, well maintained by upper middle income residents with private streets closed to through traffic. As such we believe that the situation here is much the same as confronted by the court in the companion cases of Pierce v. St. Louis Union Trust Co., 311 Mo. 262, 278 S.W. 398 (1925), and Pierce v. Harper, 311 Mo. 301, 278 S.W. 410 (1925). In the Pierce cases, the restrictive covenants of deeds affecting Vandeventer Place in St. Louis, a private, single family residential subdivision, restricted use of the houses to the owners “with their respective proper families . . . (but not exceeding one family for or in respect to each of said lots) * * * ” Upon a charge that one of the lot owners was permitting “more than one proper family per lot” to make use of her residence (actually, the lot owner was running a boarding house), the court held in Pierce v. Harper, supra 278 S.W. at 412:

“[T]hat the intention of the parties to the original deed, as disclosed by the context of said deed and the surrounding facts and circumstances, and the intention of the present owners of property in said addition, as disclosed by their practical construction of such covenants, evidenced by their own acts and conduct, clearly makes manifest that such owners intended, and still intend, that Vandeventer Place shall be and remain a high class, exclusively residential district, and that the meaning, force, and effect of said restrictive covenants is to limit the use of each dwelling house or home on each lot of the addition to one single family.”

It was also held that allowing a residence to be used by persons “not members of one proper family” was:

“[N]ot as a private dwelling house or home for the use or occupancy of one single family. Such use is in derogation of the restrictive covenants affecting said premises.” Id. 278 S.W. at 412.

We find it evident that the court in the Pierce cases was interpreting a single family use restriction similar to the one in this case as a restricted use to the designated “one single family” or “one proper family” and meaning that such use was limited to persons related by blood, marriage or adoption; that the interpretation placed upon the trust indenture restriction by the trial court in this case, limiting the use to families related by blood, marriage or adoption, is therefore reasonable and proper.

Cash v. Catholic Diocese of Kansas City-St. Joseph, 414 S.W.2d 346 (Mo.App.1967), also offers guidance for us. In Cash, a group of teaching nuns sought residence occupancy in a private area restricted to “single family dwellings only.” The trial court in Cash enjoined the use of the property by the nuns, and in affirming the trial court, the Court of Appeals quoted from the trial court’s decision as follows, l.c. 349:

“ ‘There can be no argument with the proposition that a building for occupancy by a group of people, all of whom are related to one another by blood or marriage, might properly be described as a ‘single family dwelling’. We believe that the proposed residence for nuns may not be so described, if for no other reason, because there are in common use other words that describe such a building without resort to that word that has another widely accepted meaning. The residence for nuns might be described as a boarding house, sorority, or club. Or if one wanted to emphasize the religious status which its occupants would have in common, one might call it a convent, . . . But would most people describe the nuns that live there at a particular time as a ‘family’ or their residence as a ‘single family dwelling’? We think not.’ ”

So, too, do we believe that it was not unreasonable for the trial court in this case to conclude that defendants’ use of their house — where two, three and four unrelated persons lived together at one time or another — was a use by more than one family. We also find that the restriction placed upon the use of the property as construed by the trial court is sufficiently definite. We also believe our decision in this regard to be consonant with the Pierce and Cash cases.

Defendants suggest that the restriction imposed by the trial court is anachronous and too narrow and urge us to accept the 1971 version of the University City House Code definition of “family,” which includes “a group of not more than three persons (excluding servants) not related by blood or marriage, living together as a single housekeeping unit in a dwelling unit.” Although defendants attached a copy of the University City House Code to their brief, it does not form a part of the transcript. Thus, we reject any consideration of the University City House Code, for it is neither a part of the transcript, nor do we take judicial notice of it. State ex rel. Freeze v. City of Cape Girardeau, supra. Further, even if we were to consider University City’s housing code it would not be persuasive to our decision. We look to see how the parties within Ames Place intended the “family” use restriction to be applied. We believe it palpable that it has been the intention of the Ames Place residents to limit the use of individual houses to “families” within that term’s common meaning— persons related by blood, marriage or adoption, or, at least, such an interpretation as made by the trial court is reasonable and proper under the circumstances here.

The judgment is affirmed.

KELLY, P. J., dissents in separate opinion.

WEIER, J., concurs.

KELLY, Presiding Judge,

dissenting.

I respectfully dissent because I believe that the manner in which this cause was presented to the trial court did not provide it with sufficient facts to support the judgment entered and for that reason would reverse and remand the cause to the trial court for a new trial.

The cause was submitted to the trial court on the pleadings, a stipulation of facts and certain exhibits, including among others, the Indenture restricting the type of buildings to be erected and the use to be made of said buildings within the platted subdivision. No oral testimony was adduced by either of the parties. Nevertheless, the fact that the cause was so submitted to the trial court for decision does not relieve the plaintiffs of their burden of proving each and every element of their case not admitted by the defendants. I have concluded the plaintiffs have failed to carry their burden of proving that the defendants have been in violation of the Indenture restrictions and that the trial court erred in its definition of the terms “no more than one family” to mean that only persons related by blood or marriage or adoption could take up residence in defendants’ home.

This cause requires the construction of the terms of an Indenture restricting the type of construction and the use permissible in the Ames Place subdivision, and the Indenture is to be construed under the general rules applicable to construction of restrictive covenants running with the land. These general rules are too well known to require extensive citation of authority. The fundamental rule in the construction of restrictive covenants is that the intention of the restrictor as evidenced by the written instrument governs, and restrictive covenants are to be strictly construed in favor of free use of property. All doubts are to be resolved in favor of the free use of the property and the covenants should never be applied to defeat the plain and obvious purpose of the restriction. Absurd interpretations are always to be avoided. Shepherd v. State, 427 S.W.2d 382, 382-387 (Mo.1968). Restrictions on the use of land will not, however, be extended by implication to include anything not clearly expressed in them, and if there is substantial doubt of their meaning, such doubt should be resolved in favor of the free use of the property. Marks v. Bettendorfs, Inc., 337 S.W.2d 585, 590[6—8] (Mo.App.1960).

To ascertain the intention of the “re-strictors” with respect to this Indenture we must look to the Indenture itself. The document consists of thirty pages obviously prepared by the legal department of a trust company for the developers of the Ames Place subdivision. The portion of the Indenture to be construed, sub-paragraph 2 of Clause E, reads as follows:

“. . . ; said persons agree . not to build more than one single dwelling upon any one residence lot; . not to use or permit any residence or building on any of said residence lots to be used, directly or indirectly, for business of any character, or for any other purpose other than that of an exclusive private residence (except that a physician or dentist residing therein may have his office and practice his profession in his residence); not to erect or permit to be erected on said residence lots, or any of them, any flat or apartment house, or use or permit to be used any house or houses erected on any such residence lots as a flat or apartment house, or by more than one family, ...” (Emphasis supplied).

In addition, the Indenture specified that no house could be erected which cost less than $5,000.00, that building lines had to be observed, that the residences erected on the lots would have to face specified directions, and other restrictions not necessary to this opinion.

From the pleadings, the stipulation of facts and the documentary evidence the facts viewed most favorably in support of the judgment are that the appellants — the defendants in the trial court — are two adult males who purchased a residence in the subdivision known and numbered 324 Melville on or about June 29, 1971. They received a General Warranty Deed which recited that it was subject to restrictions of record. The Indenture was a matter of record and at the time of the purchase the appellants were furnished a copy of same. The house they purchased was a residence. The character of the neighborhood was “residential,” the houses therein were “substantial” and were occupied by “middle income residents, many of whom are professional people.” While a few of the lots in the subdivision were excepted from this restriction, 208 of the lots in the subdivision were subject to the same restriction. The appellants moved into their newly purchased home and took up residence. However, within a short time they were joined by a man and woman who lived in the home with appellants for a time. The man moved out in May of 1972 and the woman in January of 1975.

This lawsuit was instituted on November 17, 1972. The judgment of the trial court would not only enjoin the appellants from allowing one not a member of the “family” from residing in the home but would oust one of the tenants in common from enjoying his own home.

On appeal the appellants raise several points, but the one I believe decisive is that the trial court erred in enjoining them from residing together or with any other person unrelated to them by blood, marriage or adoption at their home because the trial court’s definition of the term “family” is more “confining and restrictive than accepted definitions of the community, definitions from prior decisions of Missouri Courts, or ordinary and common meanings found in American Dictionaries.”

Since Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976) review of judgments in court-tried cases is limited, and the decree or judgment of the trial court will be sustained on appeal unless (1) there is no substantial evidence to support it, (2) unless it is against the weight of the evidence, (3) unless it erroneously declares the law, or (4) unless it erroneously applies the law, and appellate courts should exercise the power to set aside a decree or judgment on the ground that it is against the weight of the evidence with caution and with a firm belief that the decree or judgment is wrong. It is in this spirit that I humbly review the decree of an able and experienced trial judge.

In an effort to discern the intention of the “restrictors” here a thorough study of the Indenture in its entirety has been made, and the conclusion is inescapable, I believe, that what these “restrictors” intended by the Indenture was to develop a subdivision “residential” in character and, except in the few lots specifically excluded from this particular restriction, prohibit the erection of multi-family buildings and the use of any building already erected from multi-family use, as well as the erection or use of any buildings for business or commercial purposes other than professional practice by doctors and dentists residing in the subdivision.

There is no evidence from which the trial court could conclude that these appellants were in violation of these parts of the Indenture. They were using their residential building for a residence inasmuch as they were dwelling therein. Although the Indenture itself recites that the lots platted on the plat recorded in the Office of the Recorder of Deeds of St. Louis County “are all intended as sites for residences only” and are designated “residence lots” and that they have a “general plan to make of said subdivision a desirable residence section,” nowhere did they define the term “residence.” If the trial judge was to glean their intent from the use of the term “residence” alone as it is used in the Indenture, then any kind of building devoted exclusively to “residence purposes,” whether single family dwelling, duplex, flat or apartment building could have been erected on any one of the residential lots except for other restrictions contained in the Indenture. The term “residence” is no term of art; it means a dwelling place. Shepherd v. State, supra. Nor is there any evidence that appellants were using their home as a “flat” or an “apartment house.” The term “flat,” when used in a restrictive covenant, has been construed to mean a house used by more than one family, each family living by itself on different floors and equipped separately for housekeeping. Godfrey v. Hampton, 148 Mo.App. 157, 127 S.W. 626, 628[3] (1910). An apartment house, as distinguished from a single family dwelling or flat, is occupied by a number of separate residential suites, more than two, the tenants occupy separate living areas, and usually enjoy certain conveniences such as heat, elevator service, etc., furnished in common. Evans v. Roth, 356 Mo. 237, 201 S.W.2d 357, 364 (banc 1947). It is the separate, independent and disconnected nature of the individual suites within the residential building which distinguishes flats and apartment houses from single family dwellings.

The question to be answered is whether these appellants were in violation of the Indenture because their home was being used by more than one family.

The term “family” is not defined in the Indenture. While at first blush the term “family” would appear easy of definition, the courts have not found it so. Dictionaries have been no more certain. See Webster’s Third New International Dictionary wherein there are seven groupings of definition of this simple term. The flexibility of the term has been recognized by the courts of Missouri. In State ex rel. Kemp v. Arnold, 234 Mo.App. 154, 113 S.W.2d 143, 145[1] (1938) the court said:

“Now the word ‘family,’ as it is employed generally in legal terminology, is one of great flexibility, and capable of many different meanings according to the connection in which it is used. In a narrow and restricted sense it includes only husband and wife and their children, but as commonly understood it is not so limited in its application, and unless the context in which it is used manifests a different intention, it is usually to be construed in its broad and primary sense as a collective body of persons living together in one home, in a permanent and domestic character under one head or management.” (Emphasis supplied).

For other eases taking cognizance of the flexibility of the term “family” see those cited in State ex rel Ellis v. Liddle, 520 S.W.2d 644, 650 (Mo.App.1975). Although I concur in the refusal of the majority to consider in the disposition of this appeal the ordinance of the City of University City attached to the appellant’s brief, it is but one example of the numerous municipal ordinances which take cognizance of the fact that the term “family” should be employed in its broadest and primary sense and not limited solely to persons related by blood or marriage or adoption where restrictions on the use of property are imposed by a legislative body.

While I have no quarrel with the authorities cited in support of the majority opinion, I do not believe that they are controlling here. In not a single case cited by the majority did the court undertake to oust from occupancy the owner of the premises. In Pierce v. St Louis Union Trust Company, 311 Mo. 262, 278 S.W. 398 (1925) it was not the Trust Company which was ousted from its home; rather, both the Trust Company and its lessee were enjoined from operating, or permitting the operation of, a hospital for the care of incurables in a residential area. In the companion case, Pierce v. Harper, 311 Mo. 301, 278 S.W. 410 (1925) the operation of a boarding-house in violation of the restrictive covenant was enjoined. Here again the owner or owners of the residence were not ousted.

Cash v. Catholic Diocese of Kansas City-St. Joseph, 414 S.W.2d 346 (Mo.App.1967) did not define the term “family” other than by a rhetorical question which the trial court, itself, answered by stating that it would not think that most people would describe a group of nuns living in the “convent” to be “a family.” The real issue in that case was whether the “convent” proposed for construction would meet the zoning classification of a “single family dwelling.” The plans for the building showed that it would contain 6000 square feet of floor space, and would be a two-story building containing 13 bedrooms, plus large central bath and toilet facilities, an office, a chapel, a community room, a parlor, a dining room, kitchen, pantry and storage facilities, plus additional laundry, storage and recreational facilities in the basement. The trial judge in his “Reasons for Decision,” which was adopted by the Commissioner writing the opinion for the court, said that the basis for his decision was that the residence for nuns could not be described as a single family dwelling because “there are common words that describe such a building without resort to a word that has another widely accepted meaning — “a convent.” He equated the group living in the convent — some 9 to 11 nuns — with a boardinghouse, sorority or club. We have here no more than 4 people and no evidence whatsoever relative to the residential features of the house which, structurally at least, would make it other than a “single family dwelling.”

Read in its entirety, sub-paragraph 2 of Clause E of the Indenture evidences an intent to restrict the erection and usage of residences in the subdivision to single dwelling private residences to be used by not more than one family. No multi-family residences were to be allowed. However, the word family as employed is ambiguous and can be construed “in its broad and primary sense as a collective body of persons living together in one home, in a permanent and domestic character under one head or management,” State ex rel Kemp v. Arnold, supra, without departing from the general rules of construction applicable to restrictive covenants which hamper the free use of land. To construe the term “family” as the trial court and the majority of this court do — i. e. as limited to persons related by blood, marriage or adoption could lead to the preposterous situation where no single, unmarried person might occupy a residence in Ames Place subdivision even though he owned the residence, because, by the definition of family used by the trial court and the majority opinion, he would not comprise a family within the terms of the Indenture.

I would construe the term in its broad and primary sense so as to permit the free use of the defendants’ property and would not, as I conceive the majority opinion has done, construe the term more restrictively than the “restrictors” themselves saw fit to do when they had the Indenture drafted. Construing the term “family” as I would requires that this cause be remanded to the trial court for the taking of further evidence and thereby enable the trial court to make a finding whether the appellants occupy the residence as “a collective body of persons living together in one home, in a permanent and domestic character under one head or management.”

This approach is most appropriate here because these appellants are the owners of record of this residence and their right to enjoy their property should be protected where possible. The strict enforcement of restrictive covenants is not always the proper remedy for alleged objectionable uses of residential property and I believe this is one of those cases, assuming that the narrow and restrictive definition of “family” is proper, although I do not concede that it is. I would follow the precedent set by Brady v. Superior Court of San Mateo County, 200 Cal.App.2d 69, 19 Cal.Rptr. 242 (1962) which held that the use of a house as a single housekeeping unit in an area zoned for “single family dwelling” by two students did not constitute a violation of the municipal zoning ordinance restricting the use of houses to “single family dwellings.” One of the students was the son of the owner of the house and the other was a friend of the son. The son paid no rent but the friend did, and both paid for the utilities they used. The decisive evidence in the case was that the students did not fractionalize or divide the occupancy into separate segments, but used the kitchen and common facilities as a single unit.

This California case is especially significant in this case in the context of the limited facts presented to the trial court and upon which the trial court based its decree. The California Appeals Court recognized that the interest of the owner of the house — the use of his house — was an important one; “a matter that touches more than a technical interpretation of contract.” The California Court in construing the term “single family dwelling” said, 19 Cal.Rptr. l.c. 247:

“ ‘Single family dwelling’ designates the joint occupancy and use of the dwelling by all of those who live there. The word ‘single’ precludes the segregation of certain portions or rooms for rental. It forecloses multiple occupancy of certain portions of the unit for rental as a segregated part, or parts, of the unit. ‘Dwelling’ means the whole of the premises used for living purposes. It must include the use of the common rooms, such as the kitchen, dining room, living room, if any, by all occupants. It refers to, and reinforces, the concept of singular use, as opposed to multiple. The ‘dwelling’ cannot be fragmentized into broken bits of housing for rental return.
‘family’ signifies living as a family; it inhibits the breaking up of the premises into segregated units. It does not necessarily compel the use of the unit by more than one person. We cannot conceive that Atherton meant to prohibit the occupancy of the unit by a single individual homeowner. The word must then, instead, refer to the use of the premises as a family, or in the manner of a family. Such family use, again, would, and must be, a single and common use of the premises.”

Construed in this light a single person might use the residence “in the manner of a family” and two persons of equal status might occupy and use the premises in the same manner. The court also recognized that if more than one person does occupy the premises, the parties must live together in the same relationship or manner of a family, and the relationship could not be an organizational one, such as that of a social club, sorority or fraternity, which rests upon a social bond rather than a family status.

The court also concluded that the term “single family dwelling” as used in the ordinance modified both use and erection of a dwelling, and carried the same meaning in both situations; that the erection or construction of a “single family dwelling,” in itself, would imply that any building so constructed would contain a central kitchen, dining room, living room and bedrooms and would constitute a single housekeeping unit, and to qualify as a “single family dwelling,” an erected structure need only be used as a single housekeeping unit. The evidence proved that the two students used the house as a single housekeeping unit and they did not divide or fractionalize the occupancy into separate segments.

Because the law favors the free use of one’s property, and applying the general rules of construction applicable to restrictive covenants to the Indenture for Ames Place subdivision, where one of two or more constructions are available and will not do violence to the intent of the “restrictors,” I would employ the term “family” in “its broad and primary sense as a collective body of persons living together in one home, in a permanent and domestic character under one head or management.” State ex rel Kemp v. Arnold, supra.

Further support for this resolution of this case is found in State ex rel Ellis v. Liddle, supra, which involved the question whether the use of a dwelling in an area zoned for single family dwellings for an “Achievement Place,” i. e. a home for up to ten juvenile boys under the direction of a husband and wife team of counselors, was in violation of the zoning ordinance. The ordinance defined the term “Family” as follows:

“One or more persons related by blood, marriage or adoption living together in one dwelling unit and maintaining a common household, including domestic servants, gratuitous guests, boarders, roomers or lodgers, but not to exceed 10 persons when all are not related by blood, marriage or adoption.”

The court recognized that: “As a vital element toward the resolution of this problem it must be determined if the occupants of the property under the intended use would constitute a ‘family’ within the definition of that term under the zoning ordinance or under the decisional or common law.’’ (Emphasis supplied)

Lest there be some effort to distinguish the holding in State ex rel. Ellis v. Liddle, supra, from this case on any basis, I would point out that the court there took cognizance of the two separate categories “family” was divided into by the ordinance. The first category was persons related by blood, marriage or adoption living together “in one dwelling unit ” in a “common household” including servants, guests, boarders, roomers or lodgers. There was no maximum number of persons in this category of persons who would comprise a family. The second category was persons unrelated by blood, marriage or adoption, but this category could not exceed 10 persons in any one dwelling unit. According to the court, 520 S.W.2d, l.c. 650, this categorization of persons who could reside together in an area zoned for “single family dwellings” simply adopts the common law and deci-sional broad definition of “family.”

For these reasons, I would reverse and remand this case to the trial court so that upon a new trial the parties would be afforded an opportunity to adduce evidence sufficient to enable the trial court to ascertain whether these appellants are in violation of the Indenture, and, in deciding this, I would direct the trial court to employ as its measuring stick the broad primary definition of the term “family” rather than the narrow and restricted definition employed in the first trial.

      . On appeal, defendants do not attack plaintiffs’ standing to enforce the provisions of the restrictive covenant, and clearly plaintiffs have such standing. Eyerman v. Mercantile Trust Co. N.A., 524 S.W.2d 210 (Mo.App.1975); Kuhs v. Kawelaske, 516 S.W.2d 309 (Mo.App.1974).

      . Reference is made to Annot., 71 A.L.R.3d 693 (1976), which contains a comprehensive and interesting treatment of “family” as that term relates to zoning regulations and restrictive covenants. Also see: Missouri Digest, Words and Phrases, “Family.”

      . Plaintiffs-respondents initially filed a cross-appeal from that portion of the trial court’s judgment which denied their attorney’s fees. Plaintiffs’ cross-appeal was assigned this court’s No. 37736, and plaintiffs have sought leave to dismiss their cross-appeal for attorney’s fees; leave granted.
      Plaintiffs have also urged that the defendants’ brief be stricken for failure to comply with Rule 84.06(d) and that their appeal be dismissed as being untimely. In view of our decision affirming the trial court, we need not consider these contentions.


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ramon DEVINE, Defendant-Appellant.
    No. 37778.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 24, 1977.
    Motion for Rehearing and/or Transfer Denied July 21, 1977.
    Application to Transfer Denied Sept. 12, 1977.

      Bruere & Rollings, Dale L. Rollings, Thomas J. Barklage, St. Charles, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Joel Eisenstein, Asst. Pros. Atty., St. Charles County, St. Charles, for plaintiff-respondent.
   GUNN, Judge.

Defendant-appellant was charged in an amended information with selling pentobar-bital, a Schedule II controlled substance, in violation of § 195.020 RSMo 1969. A jury found him guilty and set his sentence at five years imprisonment. Judgment and sentence were entered in accordance with the jury verdict. On appeal, defendant raises a multitude of allegations of error, including illegal entrapment. As we find as a matter of law that defendant was improperly entrapped into committing the offense charged, we discuss only that issue.

Before reaching the merits of the appeal we rule on the State’s alternate motion to dismiss defendant’s appeal or strike his brief. The State attacks defendant’s brief on the ground that it fails to contain a fair and concise statement of facts as required by Rule 84.04(c). The State contends that defendant’s statement of facts is fatally defective in that it fails to recite the evidence adduced by the State in its case in chief. The State’s evidence consisted of the testimony of the police officers involved in the sale made by defendant and testimony of two criminologists as to the nature of the substance sold. Although defendant’s statement of facts does not detail this testimony, it does contain the admission that the defendant did in fact make the sale. While defendant’s statement of facts perhaps should have contained more of the State’s evidence, we believe it sufficient for the purposes of this appeal, as the basic purpose of the State’s evidence was to establish the fact that defendant made a sale of the controlled substance, pentobarbital, as admitted in defendant’s statement. We therefore overrule the State’s motion.

On appeal, defendant centers his attack on the issue of entrapment. He contends that judgment of acquittal should have been entered at the close of the evidence, as the State failed to produce any evidence rebutting the substantial proof of entrapment introduced in defendant’s case. The issue, then, for us to decide is whether the State is obligated to produce rebuttal evidence to the defendant’s substantial evidence that he was entrapped into making the sale. We find that the existing Missouri authority obligates the State to present such evidence, and we reverse the judgment.

Aside from the chemical analysis of the controlled substance, the State’s evidence consisted of the testimony of three undercover police officers, Bishop, Panhorst and Magrew, who participated in the arrest of the defendant. Officer Panhorst testified that on October 24, 1974, he spoke on the telephone with an informant, Vickie Perkins, who informed him that a purchase of drugs could be made the following day at the Orchard Farm School District in St. Charles County. The three officers agreed that the information from Ms. Perkins pertained to a person other than the defendant. Pursuant to the “tip,” the officers arrived at the school at 1 o’clock in the afternoon on October 25 and were met by Vickie Perkins. They learned from her for the first time that a purchase could be made from the defendant. The officers had not known of the defendant prior to October 25, and Officer Panhorst testified that Vickie Perkins was their only source of information concerning the defendant. Officer Bishop, who actually made the purchase, related how the sale transpired. At 3 o’clock, the defendant approached the front door of the high school building. Vickie Perkins, who was standing near the front door, notified Bishop that the defendant was coming. Officer Bishop then went out the front door and met with the defendant. Bishop was dressed as a janitor, and the defendant was unaware of the fact that he was a police officer. When the defendant asked Bishop if he was the person interested in purchasing drugs, the officer answered affirmatively, and the two men proceeded to the defendant’s car. Officer Bishop asked to see the drugs. The defendant went to the trunk of his car and took out a red towel. He then entered the car on the driver’s side and produced a brown bottle wrapped in the towel. Officer Bishop examined the contents and asked how much the defendant wanted for the bottle. The defendant replied that he did not know and asked the officer what would be a fair price. Officer Bishop offered $100, which was accepted by the defendant. The money was given to the defendant and he in turn gave the bottle to the officer. The defendant was then placed under arrest. Officers Panhorst and Magrew, who were observing the transaction, were unable to overhear the conversation between Bishop and the defendant but did corroborate Bishop’s testimony concerning the movements of the two men. The State’s case was rested after the calling of two witnesses who established chain of custody and that the bottle contained pentobarbital.

The defendant testified on his own behalf. At the time of his arrest, the defendant was employed by the Orchard Farm School District as a school bus mechanic. He also had a farm on which he stabled and boarded horses under his care. In the latter part of September, 1974, he became acquainted with Vickie Perkins, who worked at the school district in a janitorial position. During the last week in September or first week in October, while talking with fellow employees about a recent drug raid that had taken place at the school, the defendant mentioned that he had a bottle of “phenobarbital” at home that he used to put horses asleep. This comment was overheard by Vickie Perkins, who immediately began to show an interest in purchasing the bottle of pills from the defendant. He refused to sell, telling her that he had “never thought about getting rid of them that way.” Over the next few weeks leading up to October 25, Ms. Perkins made numerous and persistent attempts to get the defendant to sell the bottle of pills. The defendant stated that she approached him on at least ten different occasions during that period and that he continually rejected her requests to sell to her. Ms. Perkins mentioned price for the first time during her eighth attempt to convince the defendant to sell. The initial offer was for $10, which was then raised to $14, and subsequently, on October 25, Ms. Perkins drastically increased the offer to $100. The offer was made at 2:15 in the afternoon. The defendant finally succumbed and drove home to obtain the bottle of pills. When asked why he finally gave in and agreed to sell the pills, the defendant replied: “Well, a hundred dollars is a lot of money. I know it’s stupid, but it is a lot of money, and I only get paid once a month and I needed the money.” The defendant testified that all the conversations with Ms. Perkins concerning the sale of his bottle of pills were initiated by her and that until October 25, he steadfastly refused to sell. Defendant’s testimony was positively corroborated by Stephen Mersman, who was a mechanic’s helper at the Orchard Farm School District. Mersman testified that on approximately four different occasions, he overheard the defendant and Ms. Perkins discuss the sale of the pills. Mr. Mersman stated that these conversations were all initiated by Vickie Perkins and that he heard the defendant refuse to sell during each conversation. The defendant also testified that during their discussions, Ms. Perkins had stated that the pills were to go to a janitor who had been burned and was taking phenobarbital to ease the pain.

The defendant testified that he had the bottle of pills in his possession for seven years and kept it in a medicine cabinet in his barn for the purpose of putting injured or ailing horses to sleep. The defendant called two witnesses who corroborated the fact that he kept the pills for such purpose and that it was common practice to dispose of horses in such manner. The defendant also testified that he had never been arrested or charged with a crime in the past. Several witnesses testified on his behalf as to his good reputation in the community.

Based upon the above evidence the defendant contends that he was entitled to judgment of acquittal. He claims that his evidence establishes entrapment; that the State failed to rebut his proof; and that, therefore, the State failed to make a sub-missible case. We believe defendant’s analysis is correct.

Missouri follows the “origin of intent” test in determining the issue of entrapment. This test was articulated in the leading case of State v. Decker, 321 Mo. 1163, 14 S.W.2d 617 (1929):

“Where the criminal intent originates in the mind of the defendant on trial, and the offense is accomplished, it constitutes no defense that an opportunity is furnished, or that an officer aids the accused in the commission of the crime, in order to obtain evidence upon which to prosecute him. But where the criminal intent originates in the mind of the entrapper, and the accused is lured into the commission of the offense charged, in order to prosecute him therefor, it is the general rule that no conviction may be had, though the criminality of the act is not affected by any question of consent.” Id., 14 S.W.2d at 619-20.

See also State v. Taylor, 375 S.W.2d 58 (Mo.1964); State v. Long, 550 S.W.2d 854 (1977); State v. Pearson, 519 S.W.2d 354 (Mo.App.1975); State v. Admire, 495 S.W.2d 132 (Mo.App.1973). See also Comments, Entrapment: A Critical Discussion, 37 Mo.L.Rev. 633 (1972), for a detailed discussion on the law of entrapment as it exists in Missouri.

The State concedes that the defendant’s testimony, corroborated by Stephen Mers-man, concerning Vickie Perkins’ constant solicitation of the defendant constituted sufficient evidence of entrapment, and that, therefore, the jury was properly given an instruction on the defendant’s entrapment defense. The fact that Vickie Perkins aggressively sought to have the defendant commit the crime, when coupled with the other circumstances in this case, including the defendant’s steadfast refusal to sell, his prior unblemished record as to arrests, and his overall good reputation in the community, constitute ample evidence of entrapment. See e. g. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); State v. Taylor, supra; State v. Decker, supra; Annot., 33 A.L.R.2d 883 (1954).

In Sherman v. United States, supra, the United States Supreme Court held that the defendant had been entrapped as a matter of law into selling narcotics. The evidence of entrapment came from the uncontradict-ed testimony of the government informer who purchased the drugs from the defendant. His testimony revealed that he met the defendant by chance at a doctor’s office where both were undergoing treatment to be cured of drug addiction. An acquaintanceship developed, and, finally, the informer asked the defendant for a source of drugs, indicating that he was not responding to treatment. The defendant rejected the request. The informer made several more requests, predicated upon his suffering, before the defendant finally agreed to obtain drugs. After several sales, the informer alerted federal agents, who observed the defendant sell narcotics to the informer and arrested him. The court held that it was patently clear that the informer induced the defendant to break the law. “One request was not enough, for [the informer] tells us that additional ones were necessary to overcome, first, petitioner’s refusal, then his evasiveness, and then his hesitancy in order to achieve capitulation.” Id., 356 U.S. at 373, 78 S.Ct. at 821. The court also noted that the fact that the en-trapper was an informer initially acting on his own, would not deprive the defendant of his entrapment defense. “The Government cannot disown [the informer] and insist it is not responsible for his actions. Although he was not being paid, [the informer] was an active government informer who had but recently been the instigator of at least two other prosecutions. . . . The Government cannot make such use of an informer and then claim disassociation through ignorance.” Id., 356 U.S. at 373-74, 78 S.Ct. at 821.

Although the law of entrapment has developed independently in Missouri, State v. Weinzerl, 495 S.W.2d 137 (Mo.App.1973), the Sherman decision is followed by Missouri courts. See e. g. State v. Golightly, 495 S.W.2d 746 (Mo.App.1973); State v. Weinzerl, supra.

The defendant argues that the case should not have been submitted to the jury, as the evidence of entrapment was never contradicted by the State. The State counters by asserting that inasmuch as the evidence of entrapment came solely from the defendant, the jury could choose to disbelieve the defendant; that being instructed on entrapment, the jury chose to disbelieve that he had been entrapped. Recent Missouri cases have clearly established the rule that when the defendant has presented substantial evidence of entrapment, the State must produce evidence to show the defendant’s predisposition to commit the crime. Failure to do so subjects the State to the adverse direction of a judgment of acquittal. The leading case establishing this principle is State v. Weinzerl, supra. Relying on State v. Decker, supra, and Kansas City v. Martin, 369 S.W.2d 602 (Mo.App.1963), the court in Weinzerl stated that once substantial evidence of entrapment is introduced, non-entrapment becomes an element of the offense:

“Missouri law effectuates its purpose by establishing, once substantial evidence of entrapment appears, absence of entrapment as an additional element of the criminal offense: ‘The law of the case comprehends the elements of the offense charged, as shown by the evidence. Entrapment was one of the elements of the offense, for, if defendant was entrapped, he was not guilty.’ Id., at 142. (original emphasis).

The court further stated that if the State fails to rebut the inference of unlawful inducement, the defendant is entitled to a judgment of acquittal:

“[W]here substantial evidence of inducement by governmental agent appears, the procedural burden devolves upon the prosecution to rebut the inference of unlawful inducement by substantial evidence of the predisposition of defendant to commit the offense, in default of which, a jury issue of entrapment has not been made, and defendant, ‘having established entrapment as a matter of law, is entitled to a judgment of acquittal’. United States v. Groessel, 440 F.2d 602, 606[11—13] (5th Cir. 1971); Martinez v. United States, 373 F.2d 810, 812[4-7] (10th Cir. 1967); United States v. Haden, 397 F.2d 460, 466[6, 7] (7th Cir. 1968).” State v. Weinzerl, supra at 141.

This principle prevails even when evidence of entrapment comes solely from the defendant. The State cannot rest on an attack of the defendant’s credibility: “[WJhere the evidence of inducement comes from defendant, the prosecution cannot rest on a challenge to the credibility of defendant; it must come forward with some contradictory evidence or suffer the adverse direction of a judgment of acquittal.” Id., at 141. See also United States v. Bueno, 447 F.2d 903 (5th Cir. 1971), in which the court said at 906: “The defendant having testified to facts which established a defense [of entrapment] as a matter of law, the government has the duty to come forward with contrary proof, if it is to carry its ultimate burden of proving guilt beyond all reasonable doubt.” Several recent Missouri cases have reiterated the procedural burden of proof rule articulated in State v. Weinzerl. See e. g. State v. Long, supra; State v. Admire, supra.

State v. Keating, 551 S.W.2d 589 (Mo. banc 1977), a case in which the State supplied the narcotic, reaffirms that the State must assume its burden of showing the defendant’s predisposition to criminal activity if the entrapment issue is raised. In Keating, the State met its burden of showing predisposition — a fact not accomplished here. Thus, in Keating, Missouri continues to apply the “subjective test” on the entrapment issue, focusing on the origin of intent to commit the crime with emphasis on the predisposition of the accused. In so doing, the court specifically rejected the “objective test” of entrapment recited in concurring opinions in Sorrells v. United States, supra, and Sherman v. United States, supra, and dissenting opinions in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), which concentrates on whether the police power utilized exceeds proper use of governmental power. Keating also notes that Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), reaffirms the subjective test.

Having already noted that the defendant produced substantial evidence of entrapment, we must now determine whether the State has carried its burden of proving an essential element of the offense — the predisposition of the defendant to commit the crime. The record is destitute of any evidence demonstrating that the defendant was ready and willing to engage in the criminal activity with the informant, see e. g. State v. Day, 506 S.W.2d 497 (Mo.App.1974), or that the government agents were merely affording him an opportunity to sell drugs. See e. g. State v. Boxley, 497 S.W.2d 129 (Mo.1973). The defendant’s corroborated testimony, that he steadfastly refused to engage in the criminal activity, therefore stands uncontradicted. The fact that the defendant resisted a government agent’s inducements is an important factor in establishing an entrapment defense. Compare Sherman v. United States, supra; and Sorrells v. United States, supra, with United States v. Groessel, 440 F.2d 602 (5th Cir. 1971). See also State v. Weinzerl, supra, where the court said at 143: “Solicitation will raise an issue of entrapment when it is coupled with a showing of reluctance or unreadiness on the part of the defendant to accept the solicitation.”

Further, there is no evidence to show that the defendant was involved in the trafficking of narcotics as was the case in State v. Hyde, 532 S.W.2d 212 (Mo.App.1975), or that he was prone towards criminality as was the case in State v. Davis, supra. Furthermore, there was no evidence to show that the authorities had any reason to suspect that the defendant was dealing in narcotics. See e. g. State v. Stock, 463 S.W.2d 889 (Mo.1971); State v. Taylor, supra. In fact, the police officers participating in the arrest testified that they had never heard about the defendant until they arrived at the school on October 25. Absent evidence of the type found in the cases cited above, the State has completely failed to rebut the defendant’s evidence of entrapment. The record remained uncontradicted that during the weeks preceding October 25, the defendant, who was essentially a law-abiding citizen with a good reputation in the community, was subjected to continual and persistent pressure from a government informant to engage in criminal activity. The defendant withstood the constant pressure until the offer became so attractive that he was no longer able to resist. The evidence was uncontradicted that except for the pressure applied by Vickie Perkins, a government informant, the defendant would not have undertaken criminal activity. See State v. Taylor, supra. Therefore, the defendant was entitled to judgment of acquittal. State v. Weinzerl, supra.

The conviction is reversed.

KELLY, P. J., and WEIER, J., concur.

      . Rule 84.04 is made applicable to criminal cases by Rule 28.18.

      . Officer Panhorst testified that he had been acquainted with Vickie Perkins for one and a half years and that all contacts he had had with her over this period were related to police matters. He also testified that he had acted on tips supplied by her in the past.

      . Officers Bishop and Panhorst were in disagreement as to which of them received the information from Perkins that a purchase could be made from the defendant. Officer Bishop testified that it was Officer Panhorst who had received this information from the informant. Officer Panhorst stated that he had not received the information from Perkins. He testified that he learned that a purchase could be made from the defendant from Bishop and that Bishop had obtained the information from Perkins.

      . The defendant’s version of what transpired differed from the officers’ account. The defendant testified that he arrived in his car and Vickie Perkins informed him that the purchaser would be there in a minute. Officer Bishop then appeared and came over to the defendant’s car. (The defendant stated he never got out of his car). Bishop asked if he had the pills. The defendant held up the pills, and Officer Bishop then walked back to the school. He soon returned with the money. The money and bottle then exchanged hands, and the defendant was placed under arrest.

      . The bottle actually contained pentobarbital.

      . On cross-examination, the defendant again asserted that he thought Vickie Perkins wanted him to sell the drugs to the injured janitor. He stated that he knew the injured man, yet he sold the drugs to Officer Bishop, not knowing who he was.

      . This testimony was substantially corroborated by the State’s chemist who stated that the bottle appeared to be about 5 years old.

      . This rule is consistent with the test of whether entrapment as a matter of law has been . established as stated in State v. Davis, 450 S.W.2d 168, 171 (Mo.1970):
      “Entrapment as a matter of law is not established where there is any substantial evidence from which it may be inferred that the intention to commit the crime originated in the mind of the accused, 22 C.J.S. Criminal Law § 45(2), p. 141, or, as stated in United States v. Haden, 7 Cir., 397 F.2d 460, 466 ‘. . . unless it is patently clear from the undisputed evidence that government agents originated the criminal design and implanted in the mind of an innocent person the disposition to commit the crime.’ ”
      See also State v. Boxley, 497 S.W.2d 129 (Mo.1973).

      . The United States Supreme Court, in the case of Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958), reached the opposite conclusion. In Masciale, the court held that where uncontradicted evidence of entrapment comes solely from the defendant, the defendant is not entitled to a judgment of acquittal, as the jury could choose to disbelieve his evidence.

      . Both cases cite Weinzeri’s rule that when evidence of entrapment is injected in the case, the State is obligated to rebut the entrapment evidence. However, both State v. Long, supra, and State v. Admire, supra, found that no substantial evidence of entrapment had been introduced.

      . Note that the fact that he acquiesced to the sale only when the offer rose to $100 does not adversely affect his entrapment defense. See State v. Taylor, supra.

      . The informant did not testify, and she could not be reached by defendant’s subpoena. While an informant’s testimony can be helpful to establish defendant’s predisposition to commit a crime, thus raising a fact issue of entrapment, it is not essential that an informant be called upon to establish such predisposition to engage in criminal activity. Predisposition may be established by other means. See e. g. State v. Boxley, supra; State v. Stock, supra; State v. Taylor, supra; State v. Hyde, supra; State v. Day, supra.


author: PER CURIAM:

text:
    David C. BUTLER et al., Appellants, v. J. M. HICKS et al., Respondents.
    No. KCD 27726.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.
    Motion for Rehearing and/or Transfer Denied June 27, 1977.
    Application to Transfer Denied Sept. 12, 1977.
    Charles C. Shafer, Jr., Kansas City, for appellants.

      John W. Kelly, Jr., Kansas City, for respondents; Morris, Foust, Beckett & Pon-ick, Kansas City, of counsel.
   PER CURIAM:

Plaintiffs, David C. Butler, and his wife, Ida J., brought their action for David’s personal injuries and damage to his 1969 Buick Electra (Count I), and for Ida’s loss of consortium (Count II), arising out of an inter-sectional collision at 31st and Harrison Streets in Kansas City, Missouri, on June 27, 1970. Defendants were alleged to have been doing business under the name of Hutton & Hicks Sinclair Service Station, 700 East Linwood Boulevard, and their 1969 Ford truck was, at the time of the collision, being used in their business and was being operated by defendant, Donald J. Shook, their employee, in the course of his employment. The verdict of the jury and the ensuing judgment were against both plaintiffs.

By Point 3, plaintiffs present their contention that it was error to submit Instruction No. 6 on the subject of Mr. Butler’s contributory negligence that he failed to keep a careful lookout or that he violated the traffic signal. The argument is limited to the lack of evidence to support the lookout portion of the instruction, so the matter of violation of the traffic signal will not be considered. If there is not evidence to support both of these disjunctive submissions, the instruction is in error. Madison v. Dodson, 412 S.W.2d 552, 557[7-11] (Mo.App.1967).

The evidence relating to Mr. Butler’s failure to keep a careful lookout will be considered in its light most favorable to defendants. Rickman v. Sauerwein, 470 S.W.2d 487, 489[1, 2] (Mo.1971). Mr. Butler was proceeding north on Harrison Street, intending to cross its intersection with 31st Street, where there were traffic signals at each corner. As he approached the intersection, he was travelling at 20 miles an hour, and as he got fairly close to it, the light was green. He made a hesitant stop, cutting his speed and then proceeded across the intersection, just before which he looked to the right and left but did not see anything. His first knowledge of the presence of the truck was upon impact, at a time when he was almost across 31st Street. The truck was coming from the west going east, and its left side struck the left side of the Buick, which turned completely around and hit the light pole and mailbox at the northeast corner, where it came to rest, headed back south. On cross-examination, Mr. Butler testified that his hesitant stop was made “right level” with the cross walk, “just before the white mark”; “right level with the south curb line”; at which time he looked to the right and to the left, but did not see anything. At that time his speed was 15 miles per hour or less. Mr. Butler did not look again to his left after he made his hesitant stop and proceeded to cross the intersection.

For defendants, co-defendant Donald Shook testified: On June 27, 1970, he was driving a tow truck wrecker east on 31st Street at about 12:30 p.m. When he was about one-half block west of the intersection of Harrison and 31st Streets, he observed the traffic light thereat which was red. He again observed the traffic light which then turned amber and then green when he was about a quarter of a block away from Harrison. Prior to this he had slowed down to probably 15 to 20 miles per hour because the light was red. He changed the gear from high to third when he saw the light change to green. No cars were ahead of him going east. When he was 20 or 30 feet from the intersection he first observed the car to his right going north on Harrison.

Both the speeds of Mr. Butler (15 miles per hour or less) and Mr. Shook (probably 15 to 20 miles per hour) are shown; and the position of Mr. Shook, 20 or 30 feet from the intersection, when he saw Mr. Butler to his right going north on Harrison, is in evidence. Inasmuch as Mr. Shook saw Mr. Butler’s vehicle, it follows that the latter could have seen the tow truck at about the same time, had he kept a vigilant lookout. These facts, however, are insufficient to give evidentiary support to the submission of failure to keep a careful lookout in Instruction No. 3, in that, after Mr. Butler saw or should have seen Mr. Shook approaching the intersection, there is no evidence that he could have acted in some manner so as to have avoided the accident or injury. See the discussion in Miller v. St. Louis Public Service Company, 389 S.W.2d 769, 771[3, 4] (Mo.1965), and cases cited, as to the necessity of evidence to support a lookout instruction in its essential element of causation. In Miller, as contrasted to the facts here, there was evidence of a clear and unobstructed street of sufficient width to permit the bus to be swerved, or that there could have been sounded a timely warning. Contrast, also, Allen v. Bi-State Development Agency, 452 S.W.2d 288, 290 (Mo.App.1970), where the evidence was that defendant Novasak had the means to have stopped or swerved his vehicle. See Zalle v. Underwood, 372 S.W.2d 98, 102[1-3] (Mo.1963), where it was said, “Having the means and ability to avoid a collision means not only the mechanical appliances, such as steering apparatus with which to swerve, signalling equipment with which to warn, or braking appliances with which to slow down or stop, but also the existence of sufficient time and distance, considering the movements and speeds of the vehicles, to enable the party charged to take effective action in avoidance.” See also, O’Neill v. Claypool, 341 S.W.2d 129, 135[11, 12] (Mo.1960); Stegall v. Wilson, 416 S.W.2d 658, 662 (Mo.App.1967); and Marshall v. Bobbitt, 482 S.W.2d 439, 442[1-3] (Mo.1972). For failure to have evidentiary support for the lookout instruction, the case must be reversed and remanded for new trial. It is noted there was no evidence that Mr. Shook could have also taken precautionary measures to avert the collision to support the lookout submission as to him. Should there be no evidence on new trial as to this aspect of the negligence charged against him, a lookout instruction should not be given.

Appellants further say that the court erred in refusing instructions against Hicks and Hutton based upon the agency of Mr. Shook and that he was within the scope of his employment at the time of the collision when those facts were established by interrogatories to Mr. Shook which were read into evidence without objection. It is unnecessary to rule the contention because undoubtedly the fact of agency could be established upon new trial as by appropriate request for admissions directed to Hicks and Hutton. The parties are apprised by their briefing of other questions presented which are also unnecessary to be ruled as they may not arise on new trial.

The judgment is reversed and the case is remanded for new trial.


author: SHANGLER, Presiding Judge.

text:
    BANK OF BELTON and Frank Blair, Jr., Appellants, v. STATE BANKING BOARD and State of Missouri, et al., Respondents.
    No. KCD 27817.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.
    Motion for Rehearing and/or Transfer Denied June 27, 1977.
    Application to Transfer Denied Sept. 12, 1977.

      James L. Swarts, Jack C. Terry, Independence, for appellants.
    Irven L. Friedhoff, Gen. Counsel, Tony K. Vollers, Asst. Gen. Counsel, Div. of Finance, Jefferson City, for respondents.
    Before SHANGLER, P. J., and O’LEARY, SMITH and HANNA, Special Judges.
   SHANGLER, Presiding Judge.

This appeal presents a wattlework of bank regulation statutes in apparent conflict.

The litigation stems from an order of the Commissioner of Finance to grant the United Missouri Bank of Hickman Mills [UMB] a facility at Highway 150 and U. S. Highway 71 in Kansas City, Missouri. The grant of application was preceded by the response to the questionnaire from the Commissioner of Finance by the Bank of Belton and its president [appellants here] that they opposed the UMB application. After the grant of the facility by the Commissioner, the Bank of Belton and president gave timely notice of appeal to the State Banking Board but were refused review on the general conclusion that the Board was without jurisdiction under § 361.094 to determine by appeal the grant by the Commissioner of Finance of an application for a bank facility.

The appellants then brought a petition for judicial review of the Banking Board order of dismissal before the circuit court. That attempt at review was also dismissed on the grounds (1) that the Bank of Belton, as a mere competitor of bank facility granted UMB lacked standing to maintain an appeal before the circuit court, and (2) the Banking Board was without authority under § 362.107 to review the approval of a facility application by the Commissioner of Finance.

I

STANDING OF A COMPETITOR BANK FOR JUDICIAL REVIEW

The orders of the State Banking Board are made “subject to judicial review as provided by law”. § 361.095, RSMo 1969. The provisions of law [§ 536.100 of the Administrative Procedure Act] accord standing for judicial review from a final administrative order to:

[a]ny person . . . who is aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form . . . unless some other provision for judicial review is provided by statute.

The clear language of the full text of § 536.100 spells out two conditions precedent to a standing for judicial review of an administrative order: (1) exhaustion of all administrative remedies provided by law and (2) aggrievement by a final administrative decision. Kostman v. Pine Lawn Bank and Trust Co., 540 S.W.2d 72, 75 (Mo. banc 1976). This statute accommodates the constitutional requirement that final decisions of a judicial nature by an administrative body which affect private rights shall be subject to direct review by the courts. Article 5, § 22 of the Missouri Constitution (1945).

Bank of Belton has exhausted all available administrative remedies, so the question remains whether appellants are aggrieved by the decision of the Board within the meaning of § 536.100. There can be little question that a bank is aggrieved by a decision to allow a competitor facility to operate within the same trade area. The position of Belton Bank falls within the definition in Hertz Corporation v. State Tax Commission, 528 S.W.2d 952 (Mo. banc 1975), l. c. 954[2] that a party is aggrieved when the judgment operates prejudicially and directly — with immediate consequence — upon a personal or property right or interest. See, also, State ex rel. Pruitt-Igoe Dist. Com. Corp. v. Burks, 482 S.W.2d 75, 78[2] (Mo.App.1972). The economic interest Belton Bank seeks to protect against the administrative order which allows UMB a facility in competition falls within the zone of interests protected by Article 5, § 22 of the Missouri Constitution as defined in § 536.100. Association of Data Processing Service Org., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

The petition for judicial review by Belton Bank in the circuit court reveals that from the outset of the Commissioner of Finance questionnaire, appellants opposed the grant of the bank facility to UMB. The petition leaves no doubt that the opposition rests on the ground that the grant of the facility application will result in an increased competition for banking business custom. The law favors free competition among banks, but within a system of regulation. Suburban Bank of Kansas City v. Jackson County State Bank, 330 S.W.2d 183, 187 (Mo.App.1959). That principle is best served by the grant of standing to a competitor adversely affected by new competition authorized by administrative decision. Davis, Administrative Law Treatise, § 22.11 (1958); State ex rel. Consumers Public Service Co. v. Public Service Commission, 352 Mo. 905, 180 S.W.2d 40, 46[6—8] (banc 1944).

The respondent contends, nevertheless, that the banking laws deny a mere competitor — even though otherwise aggrieved— status for judicial review of a final determination of the State Banking Board. The authorities cited by the parties on this point do not bear on the issue.

Belton Bank relies on Marshfield Community Bank v. State Banking Board, 496 S.W.2d 17 (Mo.App.1973) for the assertion that a competitor bank has the right to appeal a Banking Board decision. That case, however, involved the right of a dissatisfied applicant rather than a competitor for judicial review from such a decision, and does not apply to these facts (l. c. 22[6]).

State Banking Board relies on State ex rel. Rouveyrol v. Donnelly, 365 Mo. 686, 285 S.W.2d 669 (banc 1956) and State ex rel. Belle-Bland Bank v. Donnelly, 287 S.W.2d 872 (Mo.1956) for the view that a competitor bank has no right to judicial review from an administrative issuance of a new bank charter, much less a new facility. These cases were both decided under banking laws which were replaced in 1955 by the legislation now in effect. Each case involves an application for a writ of certiorari by a competitor bank for judicial review of the grant of new bank charter by the Board of Appeals. Under the ante-1955 laws, provisions for judicial review of Board of Appeals decisions were expressly governed by § 386.510 RSMo 1949 and incorporated the review procedures of the Public Service Commission into the banking statutes. That statute provided:

The commission and each party to the action or proceeding before the commission shall have the right to appear in the review proceedings [in the circuit court].

In Rouveyrol, the proposed incorporators of a bank appealed denial by the Commissioner of Finance of the charter and University Bank intervened before the Board of Appeals to oppose the grant of charter. The Board reversed the order of the Commissioner and allowed the new charter. University Bank moved for rehearing before the Board but was denied. University Bank then applied in the circuit court for review by writ of certiorari, but was denied because under the banking laws then extant only an applicant was a party to such proceedings within § 386.510 and there was no provision for intervention by those with other interests. 285 S.W.2d at 676[12-14], Belle-Bland, supra, relies on Rouveyrol to reach the same conclusion on a similar state of facts. These cases do not preclude a competitor bank standing for judicial review on the basis of lack of an interest, but rather on lack of legal authority.

As we have shown, § 536.100 now controls the right to review, and that section has been construed to accord that right to “any person, party or not, who can show himself to be aggrieved by the decision”. State ex rel. Pruitt-Igoe Disk Com. Corp. v. Burks, 482 S.W.2d 75, 78[1] (Mo.App.1972).

The respondent State Banking Board contends nevertheless that the law has less concern for the right of a competitor bank to review an order to operate a limited service facility within the trade area than a grant of a full service bank. This contention refers to the limited services which a facility may provide. When enacted in 1959, the facility statute limited these services to payment of checks, receipt of deposits, withdrawal of deposits, and making change. § 362.107(2)(1) (L.1959 H.B. No. 568 §§ 1, 2). The statute was later amended to allow the facility to make exchange, issue money orders, maintain safe deposit boxes and receive loan payments. § 362.-107(1) RSMo Supp.1975. The position of the State Banking Board is that the competitive impact of a limited facility is too slight to justify judicial review of the administrative decision to allow its operation. This argument is refuted by the express language of § 362.107(3)(3) which requires the Commissioner in evaluation of a facility application to consider “[wjhether other banking institutions will be seriously injured by the approval of the application for the facility at the location specified”.

We conclude that Belton Bank is a person aggrieved under § 536.100 and if otherwise authorized by the banking laws — is entitled to judicial review of the grant of the facility to competitor UMB.

II

JURISDICTION OF STATE BANKING BOARD

The second ground upon which the circuit court dismissed the Belton Bank petition for review was that the State Banking Board was without authority under § 362.-107 to hear an appeal from the decision of the Commissioner of Finance to grant an application for a facility. The text of § 362.107(4) [Amended by Laws 1971] relied on by the circuit court to deny jurisdiction to the review sought by Belton Bank presents the first statutory incongruity:

If the director of finance is not satisfied and denies the application [for facility], the action of the director in granting or denying any such application may be appealed from and be reviewed in the same manner as action by him pursuant to section 362.040 may be appealed from and reviewed. [Emphasis supplied.]

This section can be read to authorize that if the Commissioner [Director] shall deny the application for facility such grant may be appealed from in the manner allowed by § 362.040. This apparent nonsense is compounded by the reference to § 362.040 which provides an appeal from the denial of a new bank charter.

The disclaimer of jurisdiction by the circuit court judgment as we have shown, rests on the express ground that under § 362.107(4) the State Banking Board was without authority to review the grant of an application for facility. The respondent State Banking Board, for itself, found no jurisdiction to review the grant of a facility on the apparent premise that § 361.094 which constitutes the Board as the agency for review confines that power to new banks and relocations of banks, without mention of facility. The decision of neither tribunal refers to the statutory provision used by the other to reach decision. We read the judgment of the circuit court as the search and determination of its own jurisdiction and conclude that the issues of law raised by the Board and court are both before us.

This composite jurisdictional question appears: In view of § 361.094 which authorizes appeal to the State Banking Board from denial or grant of new bank charters or bank relocations [without mention of facilities], and the anomalous provision of § 362.107(4) for appeal from decisions on facilities — Is there appeal to the Board from an order of the Commissioner to grant a facility?

The answer is found in the history of the banking laws which show purpose and method through apparent discordance.

The banking laws were extensively revised in 1955, and the State Banking Board was created and empowered to hear appeals of an applicant who had been denied bank incorporation or relocation by the Commissioner of Finance [§ 361.094, L.1955]. It was not until 1967 that § 361.094 was amended to allow appeals by other banks from the grant of incorporation or relocation.

In 1959, § 362.107 [the statute cited by the circuit court to deny jurisdiction for the appeal of Belton Bank] was enacted to permit a bank to provide drive-in or banking service at one [later amended to two] facility separate and apart from the main bank. § 362.107(1). As we have discussed, such a facility may serve only limited functions. [See, Central Bank of Clayton v. State Banking Board of Missouri, 509 S.W.2d 175, 184[3] (Mo.App.1974)]. The application for such facility requires the Commissioner to consider, inter alia, the effect of the grant on the other banks in the area.

Belton Bank contends that § 361.094 intended to establish appeal jurisdiction to the Board from decisions on facility applications as well as from grants or denials of bank charters and relocations, and so considers unreasonable any assumption that the legislature created a right to appeal, but limited that right to only one of the parties. The appellant reminds us again that both §§ 362.040 and 361.094 allow appeal from the grant or denial of incorporation or relocation, and so prove a similar intention for an application for facility.

State Banking Board argues, on the one hand, that the failure to include facility decisions within § 361.094 when it was amended in 1967 proves the legislature intended no jurisdiction to the Board from such matters. The respondent Board concedes, for argument, on the other hand, some appeal jurisdiction under § 362.107(4) from decisions on facilities, but limited to refusals of an application only. This position argues that the word granting simply is not meant to be a part of § 362.107(4) as evidenced by its reference to § 362.040 which authorizes appeals only from refusals to certify a new bank.

For further emphasis the Board points out that in 1959 when § 362.107 was enacted only refusals to incorporate or relocate a bank were appealable. The failure of the legislature to give the Board jurisdiction of appeals from a facility application — the argument continues — was intentional, and reflects the minor impact a limited service facility would have on competitor banks. In sum, the Board considers it beyond conception that in 1959 the legislature should have intended to permit an appeal from the grant of a facility decision when no comparable right was allowed from the grant of a full service bank charter.

These statutes, and the contentions which reflect them, must be seen integrally to be of purpose. They were enacted in pari materia and, however imperfectly, express an important public policy. A court acts on the presumption that [City of Joplin v. Joplin Water Works Company, 386 S.W.2d 369, 373[5-8] (Mo.1965)]:

. the legislature never intends to enact an absurd law, incapable of being enforced, and on the principle that the reason of the law should prevail over the letter of the law, courts on numerous occasions, confronted with ambiguous or contradictory language, have adopted a construction which modifies the literal meaning of the words, or in extreme cases have stricken out words or clauses regarded as improvidently inserted, in order to make all sections of a law harmonize with the plain intent or apparent purpose of the legislature.

Other canons of construction allow a court to make sense out of a statute even though mistakes in writing, grammar, by misnomer or misdescription, or omissions obscure an otherwise discernible legislative intent. State ex rel. Klein v. Hughes, 351 Mo. 651, 173 S.W.2d 877, 880[8] (1943); Tadlock v. Mooneyham, 212 Mo.App. 573, 253 S.W. 1098, 1100[3—6] (1923).

The evident purpose of the legislature in the enactment of § 362.107 which allows the Commissioner to grant or deny application by a bank to maintain or relocate a facility is to bring that activity into the regulated scheme for competition already formulated for new banks and relocations by §§ 362.020 — 362.030. The express terms of § 362.107(3) — which precede the review provision in contention — require the Commissioner to determine the application for facility on considerations of the needs and welfare of the community, the financial strength of the parent bank, and whether other banks will be seriously injured by the competition. These very desiderata to protect against insolvency — on the one hand— and monopoly — on the other — are those which also determine the grant or denial of a bank charter or request for relocation. §§ 362.030 and 362.325(7); Central Bank of Clayton v. State Banking Board of Missouri, supra, l. c. 184-5.

The banking laws advance this basic public purpose by provisions [§§ 361.094 and 361.095] that one adversely affected by the grant or denial of charter or relocation may appeal to the State Banking Board. This administrative review is an antecedent and necessary step for access to the courts under § 536.100 as the ultimate conservator of these legislative values.

The provisions of § 362.107(3) that the Commissioner consider the welfare of the community, the effect on other banks in the area and the fiscal ability of the main bank to support the facility, to arrive at a decision indicate that the legislature attaches the same importance to a facility as to a new bank. It follows, therefore, that the grant or denial of a facility by the Commissioner affect important interests of other banks in the area as do the grant or denial of new incorporations or relocations. It is altogether congruous to expect that to perfect this legislative policy, review provisions would be intended for a facility compatible with those allowed a bank. As we see it, the expansion of jurisdiction for the State Banking Board in 1967 to allow review of grant as well as denial of incorporation [§ 361.094] was legislative recognition that ex parte proceedings before the Commissioner — without review of a grant — was not sufficient protection for the interests of competitor banks. That same consideration affects the enactment of § 362.107(4) now in contention before us. To say — as does the Board — that jurisdiction to review under § 362.107(4) comes only to an applicant for a denial of a facility but not to a competitor whose solvency may be threatened by a grant of facility belies the basic legislative purpose to maintain a healthy system of banks.

These discernments of legislative purpose lead us to conclude that the enactment of § 362.107(4) was not meant to be absurd but to provide review to a competitor bank to the State Banking Board from a grant by the Commissioner of a facility application. This construction brings § 362.107(4) into harmony with one of the primary purposes of the banking laws: to maintain the solvency of existing banks by allowing a competitor bank to contest the grant of new competition.

We give effect to the reason of the law over the letter of the law by means of those maxims of construction which allow a court to correct, insert or delete words — even phrases — to avoid absurdity and give meaning to a statute. Bingham v. Birmingham, 103 Mo. 345, 15 S.W. 533, 535 (1891); City of Kirkwood v. Missouri State Board of Mediation, 478 S.W.2d 690, 695[6-7] (Mo.App.1972). Accordingly, we excise the first phrase of § 362.107(4), set off by brackets, as improvidently included, so that the operative statute as underscored reads:

[If the director of finance is not satisfied and denies the application] [T]he action of the director in granting or denying any such application may be appealed from and be reviewed in the same manner as action by him pursuant to section 362.040 may be appealed from and reviewed.

Our conclusion that Belton Bank has standing and comes within the operation of § 362.107(4) for review to the State Banking Board from the grant of a facility decides this appeal.

Accordingly, the cause is reversed and remanded with directions to remand to the State Board for further proceedings.

All concur.

      . § 361.094, RSMo 1969, establishes procedures for review of orders by the Commissioner of Finance for approval or denial of applications for the incorporation or relocation of banks.

      . § 362.107 authorizes a bank or trust company, upon approval by the Commissioner of Finance, to operate a bank facility separate from the banking house, and undertakes to establish a means of review from the action of the Commissioner. The language of this section, which we rescript at a more appropriate point of reference, gives rise to the apparent ambiguity later defined.

      . The Board of Appeals was replaced by the State Banking Board by enactment of § 361.097 in 1955.

      . The designation Commissioner of Finance was replaced by Director of Finance in the 1976 statutory revision.


text:
    STATE of Missouri, Respondent, v. Michael L. GLOVER, Appellant.
    No. KCD 28793.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.
    Motion for Rehearing and/or Transfer Denied June 27, 1977.
    Application to Transfer Denied Sept. 12, 1977.

      Jon M. Krebbs, Asst. Public Defender, Liberty, for appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   PER CURIAM:

Defendant appeals from a conviction by jury of burglary second degree and stealing in connection therewith, with sentence of five years on the burglary and three years for the stealing. The trial court ordered those sentences to run consecutively.

The sole issue raised by defendant on appeal is the sufficiency of the information to charge a crime, it being contended that “the place of the crime and the articles allegedly stolen were not described with sufficient particularity to advise the defendant of the nature of the crime and defendant could not therefore prepare a defense thereto.” The information, omitting formal parts, alleges that “on or about the 29th day of August A.D. 1975, at the County of Clay, in the State of Missouri, one Michael L. Glover did then and there wilfully and feloniously and knowingly and burglariously break and enter the dwelling house of John Gleason, the same being a place where diverse goods, wares, merchandise and other valuable things were kept and stored, with the felonious intent then and there to steal, and the said Michael L. Glover did then and there steal, take and carry away a portable television and an alarm clock, the property of John Gleason, without the consent of the owner and with the intent to convert the same to his own use and to permanently deprive the rightful owner of the use thereof . . ..”

The case law of this state makes clear that a burglary may be alleged as here in the terms of the statute; that an information may describe a theft as stealing property of another without the latter’s consent, and that it is not necessary to set forth a detailed specification of how the theft was perpetrated; and that a general description of the place where the crime occurred and the articles taken, such as the descriptions here, absent a motion by defendant for a bill of particulars, is sufficient. The trial court therefore properly proceeded in this case under the present information.

No error of law appears and an extended opinion would have no precedential value. The judgment is therefore affirmed under the provisions of Rule 84.16(b).