author: SHANGLER, Presiding Judge.

text:
    Marvin L. STARK, Petitioner-Appellee, v. Evelyn C. STARK, Respondent-Appellant.
    No. KCD 27879.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.

      C. John Forge, Jr., Hencke & Forge, Independence, for petitioner-appellee.
    Robert M. Hill, David H. Miller, Hill, Hill & Busch, Charles H. Sloan, Richmond, for respondent-appellant.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

This appeal comes from Evelyn C. Stark from a decree which dissolved her marriage to Marvin Stark. The judgment also made division of the marital property, allowed the wife maintenance, awarded her custody of the two minor children, money for their support and attorney fee. The wife challenges here the reasonableness of the distribution of the marital property and the adequacy of the maintenance and child support awards.

The parties were married on April 23, 1961, and about a year later removed to an 85 acre farm which the husband had purchased in 1957 for $15,000. At that time be borrowed $10,000 to apply to the purchase price and still owed $6,000 at the time of marriage. Title to the farm was taken in his name and so retained throughout the marriage. The husband also brought tools and machinery worth $2170 to the marriage. He has been employed since 1954 as a supervisor at Armco Steel Co., earning a gross salary of $19,455 the year immediately preceding the dissolution action.

After the parties removed to the farm, they began to build a new home, and in 1965 incurred joint liability on a $18,000 loan and mortgage. This money was used to discharge all his old debts [and included, presumably, the prior mortgage encumbrance which had stood in the name of the husband alone] and also to finance construction of the new home on the farm. The husband contended that his wife was of little help in the enterprise and that he did most of the work himself. She insisted that she was a co-worker at every phase of construction, and thus made a significant contribution to the undertaking. The house was completed and served as the family residence until they separated in 1974.

It was the contention of the husband that the marriage failed because she constantly berated him in front of the children and eventually turned them against him. The wife complained of physical abuse by the husband and of nocturnal forays from which he did not return until early morning.

The wife raises four points of trial error on this appeal: (1) failure to make and enter written findings of fact and conclusions of law as to the four factors constituted by § 452.330(1), RSMo Supp.1975, as relevant on the judicial disposition of marital property; (2) the unjust allocation to her of marital property; (3) the inadequacy of the maintenance award; (4) the inadequacy of the child support award.

As to the first issue, neither party requested findings of fact nor conclusions of law, and none were provided. The wife here contends that § 452.330, which directs the judicial disposition of marital property upon dissolution, impliedly requires such findings. That section directs the trial court at the division of marital property to consider all relevant factors, to include

1. The contribution of each spouse to the acquisition of the marital property;
2. The value of the property set aside to each spouse;
3. The economic circumstances of each spouse at the time the division of the property is to become effective;
4. The conduct of the parties during marriage.

While we exhort the trial bench, as an aid to appellate review, to explain the facts upon which the adjudication directed by § 452.330(1) rests, Rule 73.01(d) [then in effect] and current Rule 73.01(2)(a) impose no duty for findings of fact or conclusions of law in the absence of specific request by counsel. In that event, all fact issues are considered found in accordance with the result reached by the court. Noland v. Noland, 527 S.W.2d 696, 698[1] (Mo.App.1975). Nor can the prescription of § 452.330 that the court consider all relevant factors in the allocation of marital property be understood to imply a requirement — even in the absence of request — that a judge give a statement of reasons for the adjudication. The power of the supreme court to establish rules of practice and procedure is conferred by constitution. A rule so promulgated may be annulled or amended by the Legislature only by an enactment limited to that purpose. Article 5, § 5, Missouri Constitution of 1945. It is not the design of § 452.-330 to amend or annul Rule 73.01. The point is denied.

The wife next contends that the marital property was unjustly allocated. In particular, she argues that the 85 acre farm on which they dwelt had become, by their common understanding, marital property and should have been dealt with accordingly. The court awarded the wife

1. $15,000 in cash
2. household furniture valued at $4145
3. a 1973 Oldsmobile valued at $3200

and to the husband

1. the 85 acre farm valued at $42,000 and subject to a $5229 encumbrance
2. all the cattle of the value of $1500 and subject to a $4160 encumbrance
3. farm machinery and tools valued at $4585
4. three antique automobiles valued at $2100
5. a pickup truck valued at $1925
6. all (269) shares of stock in Armco Steel valued at $5111.

The new divorce Reform Act provides that in a proceeding for dissolution of marriage the court shall first set apart to the spouses the separate property of each and then divide the marital property as the court determines just after consideration of all relevant factors. § 452.330(1). The act defines marital property to mean all property acquired by either spouse subsequent to the marriage, with certain exceptions. § 452.330(2). The act also presumes that property acquired by either spouse subsequent to marriage to be marital property regardless of how title is held. § 452.330(3). This presumption may be overcome by proof that the property was acquired in exchange for property acquired prior to the marriage. § 452.330 2.(2).

The order of property division entered by the trial court did not differentiate between separate property and marital property within the definitions of the act.

It is the contention of the wife that the house and farm should be considered marital property to the full market value [$42,-000 less the encumbrance], and when so considered, the allocation to her of 38% of the total property is so disproportionate as to result in an abuse of discretion.

The husband replies that the farm represents property acquired by him prior to the marriage and the dwelling house — a replacement of the original structure — represents property acquired in exchange for property acquired by him prior to marriage, and as such neither the farm nor house constitutes marital property within the definition of §§ 452.330 and 452.330 2.(2).

The contention of the wife that the acreage became marital property by common understanding with the husband comes unadorned and unproved except for the effect to be given the evidence that the property was encumbered after the marriage, the mortgage and note of indebtedness given in the names of both spouses, and repayment made from community property. For purposes of the division of marital property under § 452.330, all property acquired by a spouse prior to the marriage and which remains titled in that spouse after marriage is, in the absence of clear intention to contribute that property to the community or to the other spouse, the separate property of that spouse and will not be regarded as marital property. Conrad v. Bowers, 533 S.W.2d 614, 624[20] (Mo.App.1975). The character of a separate property is not altered because one spouse joins in a mortgage obligation on the separate property of the other. Hogevoll v. Hogevoll, 59 Cal.App.2d 188, 138 P.2d 693, 697[6] (1943); Shovlain v. Shovlain, 78 Idaho 399, 305 P.2d 737, 739 (1956). It is altogether consistent to assume that the $18,000 loan and mortgage, although taken as a joint obligation, issued upon the faith and credit of the separate property which secured the transaction. There is no evidence that the joint mortgage was intended to create a new estate between them and in the absence of such proof, the transaction did not change the separate title of the husband into community property. Kenney v. Kenney, 128 Cal.App.2d 128, 274 P.2d 951, 958[22] (1954); Ciambetti v. Department of Alcoholic Beverage Control, 161 Cal.App.2d 340, 326 P.2d 535, 538[1-4] (1958); Conrad v. Bowers, supra, l. c. 624[20]. These authorities comport with the general principle given in 42 C.J.S. Husband and Wife § 583 that once an estate has acquired the status of separate property of one of the spouses, the status remains unchanged regardless of the nature of the funds which thereafter satisfy the obligation of the indebtedness thereon, whether community funds or separate funds of the other spouse.

We have concluded that the evidence allows no other determination than that the farm acreage came into the marriage as a separate property of the husband, remained so, and must be considered set apart to him. The issue remains, however, whether the increase in the value of the farm subsequent to the marriage should be allocated to the marital property. The husband purchased the farm for $15,000. After the marriage he spent about $12,000 from the joint mortgage funds to construct a dwelling place, cattle shed and hay storage barn. At the hearing, the husband attributed a worth of $42,000 to the farm and improvements. It is inescapable from the evidence that this increased value resulted from the improvements constructed on the farm after the marriage with marital funds. The argument of the husband that the entire $42,000 value must be excluded from the marital property on the premise that the new dwelling represents property acquired in exchange for property acquired prior to the marriage falls because there is no evidence of an exchange; title to the farm remained in him throughout the marriage. We have rejected as well the contention of the wife that the entire $42,-000 value be accounted as marital property, for the evidence shows no clear intent by the husband to contribute the entire farm to the marriage.

The answer to these contentions is found in the plain wording of § 452.330(2)(5) which excludes from marital property “[t]he increase in value of property acquired prior to the marriage.” Thus, the farm property as augmented in value by the improvements during the marriage is set aside to the husband as his separate property. That the separate farm property of the husband was improved by the enterprise of the wife and by the use of marital funds, however, are factors which influence the division of the marital property under § 452.330. For in that allocation, the relevant factors for consideration by the court include “[t]he value of the property set apart to each spouse.” [This entire subject is treated with fastidious scholarship in Cain v. Cain, supra.]

On this analysis, the decree of the trial court accords effect to the requirements of statute. The award to the wife of property $22,345 in value allocates to her in excess of 60% of the connubial estate. It is evident, that although not articulated as a specific finding, the judgment accorded proper influence to the uncontroverted evidence that the farm improvements, to the extent paid, derived from marital sources. The wife has no cause to complain of that disposition.

The wife next contends that the maintenance and child support awards are so inadequate as to manifest an abuse of discretion. § 452.335(2) defines seven factors to be considered in the determination of the maintenance order. They include, among others, the financial resources of the party seeking maintenance, the ability of the other spouse to pay and the conduct of the parties during the marriage. The evidence discloses that the conduct of both parties contributed to the demise of the marriage, and so that factor does not bear significantly on the adequacy of the maintenance award. § 452.340 defines six factors for the determination of the award of child support, among them, the financial resources of the child, of the custodial parent and of the noncustodial parent.

The trial court awarded the wife $100 per month for maintenance and $150 per month per child for support of the two children. The husband earned a gross income of $19,-455 which translated into a net monthly salary of $1048.90. There was evidence that the wife was then somewhat disabled by an ankle disorder, a condition which would likely impair certain employments. She contended that to maintain the standard of living she and the children enjoyed during the marriage, she would require $945 per month, but that a monthly award of $300 for support of the children and $100 for maintenance would be sufficient if she were allowed to retain the home.

These contentions are grounded, in some part, on the misconception that the decree as entered apportions the bulk of the marital property to the husband, whereas, as demonstrated, the fact is to the contrary. In any event, these awards are well within the bounds of the evidence and an allowable discretion. The court appears to have concluded, and quite acceptably, that the physical indisposition of the wife was transitory and readily correctible and that the allocation of the marital property had, for all practical purposes, placed the parties on a parity of financial resource.

The judgment is affirmed.

All concur.

      . The recent decision by the Springfield District of the Missouri Court of Appeals is tangential to the issue here. Cain v. Cain, 536 S.W.2d 866 874[4, 5] (Mo.App.1976) holds that property purchased and mortgaged prior to the marriage by the husband remained the separate estate of the husband throughout the marriage even though most of the mortgage payments were made out of community funds.


source: Caselaw Access Project

author: SHANGLER, Judge.

license: Public Domain

text:
    CITY OF ST. JOSEPH, Missouri, Plaintiff-Respondent, v. Leland JOHNSON, Defendant-Appellant.
    No. KCD 27963.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.

      Downs & Pierce, St. Joseph, for defendant-appellant.
    Gary A. Fenner, St. Joseph, for plaintiff-respondent.
    Before PRITCHARD, C. J., and SHAN-GLER, DIXON, SWOFFORD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   SHANGLER, Judge.

The defendant Johnson was charged by the municipality of St. Joseph, Missouri, with the operation of a motor vehicle while under the influence of intoxicating liquor. He was found guilty of the offense, appealed the municipal conviction to the circuit court, and was convicted anew by a jury.

At the time of his arrest, Johnson refused the breathalyzer test and, pursuant to § 564.444(1), RSMo Supp.1975, suffered suspension by the Director of Revenue of his license to operate a motor vehicle. As authorized by that statute, Johnson then obtained hearing before a magistrate of the county for review of the order of suspension on grounds that the arresting officer upon whose affidavit the order issued had not advised him that refusal could result in revocation of his license as required by § 564.444(1), and that the officer had no reasonable ground to believe that Johnson was drunk. The magistrate found in accordance with the contentions and entered an order of permanent restraint against the Director from suspension or revocation of the Johnson license.

At the circuit court trial, Johnson offered a motion in limine to prohibit the municipal witnesses from reference to the refusal by Johnson to take the breathalyzer test, on grounds that such evidence was both irrelevant and prejudicial to the cause of the defendant. After oral argument, the court denied the motion but allowed the defendant to raise the issue again during trial, should the evidence show that the police had probable cause to believe Johnson was intoxicated at the time he was requested to submit to the test. The court also rejected the contention by Johnson that the order of the magistrate was res judicata and a binding determination on the circuit court that no probable cause existed.

The defendant argues that the judgment of the magistrate which enjoined the Director of Revenue from enforcement of the suspension order imports that the arresting officers were without reasonable grounds to believe that the defendant operated a motor vehicle while intoxicated, that the circuit court was bound by that determination on principles of collateral estoppel, thus the failure of the trial court to exclude evidence of the refusal by Johnson to submit to the breathalyzer was error. The defendant employs this argument as the matrix for the additional contention, both at the trial and on appeal, that the evidence of refusal to take the breathalyzer was irrelevant to the issue of intoxication, and admission of that testimony prejudicial to the defendant.

Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid judgment, that issue cannot be again litigated between the same parties in future litigation. Ashe v. Swenson, 397 U.S. 436, 442, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). A proceeding for revocation of license under § 564.444 is a purely civil action. In re Green, 511 S.W.2d 129, 130[1] (Mo.App.1974). A proceeding for breach of a municipal ordinance is a civil action with quasi-criminal aspects. City of Elvins v. De Priest, 398 S.W.2d 22, 23[1] (Mo.App.1965). In the first, the State is a party in interest, and in the second, it is the municipality. The disparity of the parties and of the interests affected precludes the operation of collateral estoppel to these circumstances. Smith v. Preis, 396 S.W.2d 636, 640[4-7] (Mo.1965).

The central concern of this appeal, then, becomes whether a refusal by Johnson to take the breathalyzer was probative and admissible on the charge of intoxication in the municipal proceeding. It is the contention of defendant Johnson that § 564.444 allows a real option to refuse the breathalyzer, so that an exercise of that prerogative does not give rise to an inference of intoxication and guilt. The municipality responds that while a defendant may not be compelled to testify against himself, but may hold his silence, he has no comparable right to withhold a breath sample by breathalyzer when requested by police. That is because [the response continues] § 564.444 does not involve a testimonial compulsion, and therefore the privilege against self-incrimination is not abridged, and the refusal to submit to the breathalyzer amounts to concealment of nonprivileged evidence and may be shown to prove guilt. This argument proceeds on the analogies of Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) [which holds that an involuntary extraction of blood samples does not compel testimonial evidence against oneself] and Jones v. Schaffner, 509 S.W.2d 72, 77[2, 3] (Mo.1974) [which holds that the requirements of § 564.444 do not violate the right against self-incrimination]. The defendant Johnson does not contend, however, that § 564.444 compels his testimony against himself— quite to the contrary — but only that the policy of the statute excludes his refusal of the test as evidence of intoxication and guilt in the collateral municipal proceeding.

The decisions of the several states are in disarray as to whether the refusal or failure to take the breathalyzer test is admissible in the punitive proceeding of driving while intoxicated. This disparity in opinion derives in part from a miscellany of the statutes, some of which expressly exclude such refusal from evidence in the criminal proceeding, and others which admit such proof. Another factor which reckons in this cleavage of opinion is whether the statute accords an option to refuse the test or treats refusal as wrongful. Those jurisdictions which allow no option treat the refusal to test as evidence of a consciousness of guilt and admissible on the issue of intoxication. People v. Sudduth, 55 Cal.Rptr. 393, 421 P.2d 401; State v. Benson, 203 Iowa 1168, 300 N.W. 275 (1941).

Our statute, § 564.444 allows a motorist within its terms “the present, real option either to consent to the test or refuse it, and preliminarily the police authorities must request the test, explain its purpose and the consequences of refusal”. Gooch v. Spradling, 523 S.W.2d 861, 865 (Mo.App.1975). Thus, acceptance by a motorist of a license to operate a vehicle upon the highways of the state does not amount to an implied consent to submit himself to chemical analysis when charged with driving in an intoxicated condition. The sobriquet “implied consent law” both misnominates § 564.444 and also misleads as to its legal effect. Gooch, supra, l. c. 865.

Two jurisdictions have statutes pre-eminently comparable to the Missouri law in text and intendment, Michigan and New York. The courts of those states have ruled that the refusal by the motorist to submit to the test is inadmissible because the statute accords him the right to refuse even though the exercise of this right may cost the loss of license to drive. People v. Stratton, 286 App.Div. 323, 143 N.Y.S.2d 362 (1955) held that it was reversible error to admit evidence of the refusal of the motorist to submit to a blood test in his trial for criminal negligence where the central issue was his intoxication. The court noted that by statute the motorist had an absolute right to refuse the test and the exercise of that right could not be used to create an unfavorable inference against him. In People v. Hayes, 64 Mich.App. 203, 235 N.W.2d 182 (1975) the court held evidence of refusal inadmissible for two basic reasons: the legislature had failed to make such evidence admissible, thus to sanction such evidence, would render the choice allowed by statute to take or refuse the test meaningless.

The choice allowed a motorist by the Missouri statute to refuse or submit to the test is encumbered only by the possibility of revocation of license, but no other liability. The statute imposes no other consequence. The admissibility of the refusal as evidence of intoxication in a collateral criminal proceeding, therefore, depends upon whether the probative value of such evidence outweighs its prejudicial effect. Our decisions recognize that a motorist must make his choice to refuse or submit in the atmosphere of his arrest and restraint. Gooch v. Spradling, supra, l. c. 865; Thomas v. Schaffner, 448 S.W.2d 319 (Mo.App.1969). In this environment, the refusal may result equally from rational causes of disquiet as from a consciousness of guilt. See, Crawley v. State, 219 Tenn. 707, 413 S.W.2d 370 (1967); State v. Munroe, 22 Conn.Sup. 321, 171 A.2d 419 (1961); Duckworth v. State, 309 P.2d 1103 (Okl.Cr.1957). We are persuaded the more rational and acceptable view is that the probative value of refusal is insufficient to provide an independent basis for admissibility.

We agree also with the Michigan court [People v. Hayes, supra ] that on principles of fundamental fairness a defendant in a criminal proceeding should not be compelled to explain his refusal to take the test at the risk of suffering the inference of guilt and prejudice which a jury is bound to draw from the evidence of his refusal. A defendant accorded a right by statute should not be required to explain the exercise of that right nor should it be used to create an inference of his guilt. In our case, a motorist who has chosen the penalty of revocation for refusal to take the test should not, absent the sanction of statute, be subject to an additional penalty of having his refusal used against him at the trial for criminal charges.

The municipality insists that New Jersey precedent should determine the question because of the similarity of its statute with our counterpart and cites as authority State v. Tabisz, 129 N.J.Super. 80, 322 A.2d 453 (1974). Tabisz indeed holds that the refusal to take the test may be shown in evidence, but that on the basis that by the terms of the New Jersey statute a motorist has no right to refuse the breathalyzer, so that refusal is a wrongful act. The court acknowledged that a previous statute [comparable to our enactment] allowed a motorist an option to refuse the test, but that later amendment eliminated from the statute necessity for express consent. Thus, the court concluded that earlier New Jersey decisions [most notably State v. Ingram, 67 N.J.Super. 21, 169 A.2d 860 (1961)] — which ruled that evidence of refusal was inadmissible because the exercise of a right should not be the basis for an inference of guilt — were no longer applicable.

These New Jersey precedents are entirely consistent with the view we adopt as to the effect to be accorded our statute. The earlier New Jersey statute, as does our own, allowed the option to refuse and thus evidence of that refusal was not admissible in the criminal proceeding. When that option was removed by later amendment, so was the rationale for exclusion of the evidence. The consequences of the distinction are even more pervasive, for a motorist who has no legal option to refuse the test, has no legal right to advice of counsel on the matter. People v. Kenderski, 99 N.J.Super. 224, 239 A.2d 249, 252 (1968). Our procedures which not only accord the motorist access to counsel as a matter of fairness [Thomas v. Schaffner, 448 S.W.2d 319 (Mo.App.1969)] but as a matter of express right [Gooch v. Spradling, supra, l. c. 864[2]; Rule 37.89] are congruous with the consensual character of §§ 564.441 through 564.444.

It was error in the municipal proceeding to have received evidence of refusal of the defendant to submit to the breathalyzer test. The judgment is reversed and the cause remanded for a new trial.

All concur.

      . The various responses to this question are collected in the annotation: Evidence—Alcohol Test—Refusal, 87 A.L.R.2d 370.

      . Commonwealth v. Scott, 359 Mass. 407, 269 N.E.2d 454 (1971); Davis v. State, 8 Md.App. 327, 259 A.2d 567 (1969); State v. Giilis, 160 Me. 126, 199 A.2d 192 (1964); Duckworth v. State, 309 P.2d 1103 (Okl.Cr.1957); State v. McCarthy, 259 Minn. 24, 104 N.W.2d 673 (1960).

        . State v. Tiernan, 206 N.W.2d 898 (Iowa 1974); State v. Lynch, 274 A.2d 443 (Del.Super.1971).


author: ROBERT R. WELBORN, Special Judge.

text:
    Mary E. HAMMACK, Dependent Widow of Archie U. Hammack, Deceased, Respondent, v. Dale NICHOLSON d/b/a Ozark Truckers Association et al., Appellants.
    No. KCD 27968-27978.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.
    Roland A. Wegmann, Hillsboro, Tweedie Fisher, Jefferson City, for appellants.
    Claude T. Wood, Richland, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of circuit court affirming award by Industrial Commission of death benefits under Workmen’s Compensation Act to widow of deceased employee.

In November, 1968, Missouri Petroleum Products Company contracted with the State Highway Commission of Missouri to widen and resurface Route 63 from the intersection of Route 28 in Maries County to Rolla. Dale Nicholson, an individual doing business as Ozark Truckers Association, submitted to Missouri Petroleum a proposal to haul asphalt and rock for the project for sixty cents a ton. Missouri Petroleum accepted the offer. Nicholson put some trucks owned by him on the job. He also arranged for truckers owning their own vehicles to work on the job for compensation agreed to between Nicholson and the truck owner. One trucker entering into such arrangement was Archie U. Hammack, who lived at Iberia, Missouri.

For the project, Missouri Petroleum set up a plant where the asphalt mixture used in resurfacing the highway was prepared by mixing and heating the ingredients. The product was then transported by truck to the site of the work on the highway where it was dumped into a “lay-down” machine and applied to the roadway.

On July 16, 1969, Hammack, along with other truckers employed by Nicholson for the job, had loaded his truck at the mixing plant and had taken the heated mix to the site of the work on the highway about a mile away. The lay-down machine had broken down and, after a period of waiting, Petroleum’s job superintendent told the drivers that the project would have to be shut down for the day and that they should dispose of the hot asphalt in their trucks as they wished. Once the mixture had been prepared it was of no further use to Petroleum unless it could be applied to the road while still hot. If allowed to remain in the truck overnight, the mixture would set like concrete and could be removed only with considerable difficulty.

Several truckers sold the loads on their trucks to a motel in the vicinity for $50 a load which the drivers were permitted to keep.

Hammack and his son, Roger, who was also driving a truck on the job, started to drive their loaded trucks to Iberia, some thirty miles from the job site. The Ham-macks did not ordinarily go to and from their home to the work site daily in their trucks. They usually left the trucks at the job site and drove back and forth from and to the residence in a pickup truck.

At between 12:00 noon and 1:00 p.m., while Archie was driving west on Route 42, some three miles from Iberia, a front wheel came off his truck and the truck ran off the road and struck a tree. Archie received injuries from which he died at the scene.

There was no evidence of what Archie proposed to do with his load of asphalt. The load on his son’s truck was dumped on the drive of a service station in Iberia.

Mary E. Hammack, Archie’s widow, filed a claim for benefits under the Workmen’s Compensation Law against both Nicholson and Petroleum. A referee of the Division of Workmen’s Compensation found in favor of the claimant and awarded total benefits of $18,300. The referee concluded that the disposal of the unused asphalt mix was the responsibility of the contractor. “It was to be (sic) the best interest of the Missouri Petroleum Company and the employee to get the load of asphalt disposed of.” The referee found against both Nicholson and Missouri Petroleum, concluding that the latter was liable as a statutory employer because Nicholson failed to carry workmen’s compensation insurance and had not qualified as a self insurer.

On appeal to the Industrial Commission, the award of the referee was affirmed. The commission did reject the finding that Missouri Petroleum was a statutory employer. The commission found that Nicholson and Petroleum were joint employers. The commission further found:

“The referee correctly found that it had been the policy of Missouri Petroleum to allow drivers of loaded trucks to dispose of their loads of hot asphalt as they saw fit when it unexpectedly became impossible to dump it into the ‘lay-down’ machine located on the construction site. The sole purpose of this procedure was to prevent the hot load of asphalt from cooling to the extent that it would ‘set-up’ while still in the bed of the truck where it would be all but impossible to remove. Of course, if and when this occurred, the trucks involved would be unavailable for use when needed. It is obvious, therefore, that this customary policy or procedure involved a practice which would most always result in a service and benefit to Missouri Petroleum, to Ozark Truckers and sometimes to the truck driver if he was so fortunate as to be able to use or dispose of the material at some profit to himself.

“In the instant case we find that the service to both Missouri Petroleum and Ozark Truckers was an errand for the purpose of removing the unused asphalt from the truck so that it would be available for use upon the repair of the ‘lay-down’ machine. Missouri Petroleum was required as a requisite part of its regular business activity to use the employee’s truck and others to transport asphalt to the construction site. Ozarks (sic) was required as a requisite part of its regular business activity to furnish the employee’s truck to Missouri Petroleum for this purpose. The dumping of the hot asphalt before it cooled and ‘setup’ in the truck bed clearly created the necessity of the trip even though claimant at the same time was evidently serving some purpose of his own. It is sufficient that the business motive was a concurrent cause of the trip. We find, therefore, that the motor vehicle trip in which the employee was engaged at the time of the fatal accident in question was not undertaken for a strictly personal reason but was combined with a necessary service errand for both Missouri Petroleum and Ozark Truckers which both Missouri Petroleum and Ozark Truckers had a right to control or direct.”

The circuit court affirmed the award of the commission. Separate appeals by Nicholson and by Missouri Petroleum and its insurer followed. The appeals have now been consolidated.

The Industrial Commission based its finding that the death of Hammack arose out of and in the course of his employment upon the “dual purpose” doctrine. The commission recognized that the trip was in some respects personal and unrelated to the employment, but it found further that the employer created the situation which necessitated the trip and that they would be benefited by having the load emptied and the truck available for work the next day.

On its limited review of the commission’s findings and award (§ 287.490, RSMo 1969), this court cannot say that the facts found by the commission do not support the award nor that there was not sufficient competent evidence to warrant the making of the award. Appellants’ contentions to the contrary are premised primarily upon their conclusion that the evidence showed that Missouri Petroleum provided a place at the mixing plant in which the unused material might have been dumped and that the employer-employee relationship terminated when the employee elected not to take advantage of that means of disposing of the load and instead chose to return to his home and dispose of it there. There was evidence to the effect that dumping facilities were available, although that evidence was not wholly uncontroverted. The reviewing court is, of course, not a fact finding agency so that it would not be the proper function of this court to resolve this factual issue. Nor have appellants asserted that the commission erred in failing to resolve the issue. Rather they argue on the apparent basis that the conclusion which they assert is the only conclusion which might be reached on this issue. That this is not an uncontrovert-ed issue is demonstrated by respondent’s statement in her brief: “While there was conflicting testimony as to whether the employer provided a dump site, the preponderance of evidence indicated that there was no site readily available that had been used in the past for the dumping of material under these circumstances.”

However, even if the contention of the appellants be accepted, the mere existence of such a dump site would not render the commission’s findings unsupported by evidence or contrary to the overwhelming weight of the evidence. There was no evidence that drivers were required to make use of the claimed dumping site. In fact, the former superintendent for Petroleum who was in charge of the job stated that in a situation such as here presented: “We would just tell them to do what they wanted to with it, they could take it back and dump it or sell it or take it home. We let them do whatever they wanted to.” (Emphasis supplied) The employer thus clearly chose not to exercise its right to control what the driver should do with the unusable load and left the driver to make his own choice of what to do. Having acquiesced in the procedure, the employer cannot now say that the employment related obligations ceased when the employee elected a course which also provided some personal benefit to himself.

Appellants do not challenge the commission’s finding that the disposal of the load did inure to the benefit of the employer. Given such a finding, this court cannot say that such benefit was “so tenuous as to be imperceptible * * Elliott v. Darby, 382 S.W.2d 70, 76 (Mo.App.1964). In the application of the dual purpose doctrine the interest of the employer need not be the dominant cause of the trip. The doctrine “simply requires that the service of the employer be a concurrent cause of the journey.” Gordon v. Puritan Chemical Company, 406 S.W.2d 822, 828 (Mo.App.1966). Here the commission found that the interest of the employer was such a concurrent cause. Appellants have not demonstrated that such conclusion was erroneous.

The appellants Missouri Petroleum and its insurer contend on this appeal that the commission erred in holding Missouri Petroleum liable as a statutory employer. In their brief they state: “As Petroleum understands the award, the Commission concluded that Petroleum was a statutory employer as defined in Section 287.040, Paragraph 1, RSMo 1959.” This statement is wholly contrary to the express statement of the commission in its finding: “The finding and conclusion by the referee that employee was a statutory employee of Missouri Petroleum is hereby stricken and not herein adopted.” Obviously the appellants’ contentions on this point are directed to a finding not made by the commission and therefore it presents nothing for review.

Judgment affirmed.

All concur.


author: PER CURIAM:

text:
    Clovis Carl GREEN, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28570.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.
    Clovis Carl Green, pro se.
   PER CURIAM:

The disposition of this appeal from a motion to vacate sentence and judgment under Rule 27.26 is accelerated and disposed of on the merits prior to briefing by the Attorney General because of the peculiar procedural aspects of the matter. The movant, Clovis Carl Green, Jr., has filed innumerable writs and applications in this court as well as in the Federal courts. In order to understand the dilemma which confronts this court in dealing with the pending appeal, some review of the factual background is necessary.

Movant entered a plea on June 25, 1975, in Division Six of the Sixteenth Judicial Circuit. No appeal was had from that guilty plea and on or about August 15,1975, movant filed a motion under Rule 27.26. The Public Defender was appointed and directed to proceed with representation of movant. At the movant’s request, the Public Defender was relieved; and Sloan R. Wilson was appointed as counsel. After what is described by the circuit court as reams of correspondence and pleadings, movant filed a motion to dismiss, and the cause was dismissed without prejudice on October 29, 1975. During the period of time that that motion was pending, mandamus was filed in this court, Federal habeas corpus was filed in the District Court for the Western District, a Federal civil rights suit was filed by movant, and movant had three suits pending in Cole County against the prison and another against the Parole Board.

On January 19, 1976, the present motion was filed in the circuit court. The judge of Division Six disqualified himself and transferred the cause to Division Nine. On January 23,1976, Division Nine entered a memorandum opinion and judgment disposing of the pending 27.26 motion. The judgment found that the allegations of the motion were without merit since the movant’s complaints antedating the plea proceeding were eliminated by a valid plea of guilty and those occurring at the time of the entry of the plea were belied by the record. That memorandum and order demonstrates that the trial court reviewed the transcript made at the time of the guilty plea and indicates that the guilty plea was taken in full accord with the procedures outlined in the concurring opinion in Flood v. State, 476 S.W.2d 529 (Mo.1972). After that order was entered on January 23,1976, at the request of the defendant, the court appointed Sloan R. Wilson to represent the movant in his appeal. Appropriate proceedings were instituted in the circuit court to preserve the appeal and to direct the preparation of the transcript in the case. Thereafter, the movant addressed a variety of correspondence to his counsel that he be relieved of representation of the movant. Mr. Wilson was permitted to withdraw, and the Public Defender was appointed to represent the movant, and thereafter, the movant communicated with this court objecting to the appointment of the Public Defender and inconsistently requesting that the appeal not be “continued.” The entire thrust of that correspondence apparently being to obtain a final adjudication by discontinuing the appeal so that movant could continue under Federal habeas corpus procedures. On June 1, 1976, the Public Defender filed in this court a request to be relieved, and on the same date, the movant filed in contradiction of his request for a dismissal a paper entitled “Pro Se Appeal Brief.”

In view of the convoluted history of his proceeding and in a desire to conclude the post conviction proceedings relating to this plea without again relieving counsel and appointment of another, this court has decided to review on the merits the pending appeal from the denial of movant’s 27.26 motion.

As previously noted, the motion was denied without an evidentiary hearing, and the only issue thus presented is whether or not there were issues presented that required the taking of evidence or whether from the entire record of the proceedings the petitioner was entitled to no relief. From an examination of the motion, it is apparent, as the circuit court found, that some of the issues with respect to proceedings prior to the plea were waived by the entry of the plea. It is, likewise, apparent that the claims relating to the plea proceedings themselves are contrary to the verbatim transcript of the proceedings at the time of the plea and raised no factual issues requiring evidentiary hearing. Based upon a complete review of the file, the records and proceedings in the circuit court, and the movant’s claims in his pro se brief, the circuit court’s determination of the motion is correct, and the judgment of the circuit court is affirmed.

All concur.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Andrew Ricky HARRIS, Defendant-Appellant.
    No. 37405.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 3, 1976.
    James C. Jones, Asst. Public Defender, St. Louis, Mo., for defendant-appellant.
    John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas C. Muldoon, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant was convicted of robbery in the first degree and sentenced to five years in the custody of the Department of Corrections. In this appeal, he contends that insufficient evidence of the crime was produced at trial and that his opportunity for a fair trial was prejudiced by the improper admission into evidence of (1) testimony of the amount taken from the service station absent the admission of the business records of the station, (2) the money found on defendant when he was arrested, and (3) rebuttal testimony of the distance between the scene of the crime and that of defendant’s alibi address. We have carefully studied the record and concluded that the judgment should be affirmed.

Defendant has questioned the sufficiency of the evidence. Our review of this point is limited to determining whether the state presented sufficient evidence to make a submissible case. State v. Gamache, 519 S.W.2d 34, 39[1] (Mo.App.1975). We have reviewed the transcript and find that the state has sustained its burden of proof.

On October 24, 1974, at approximately 6:30 p. m., $120.00 was stolen from a service station at 6050 Goodfellow in the City of St. Louis. Two key witnesses testified for the state. The service station attendant, who was on duty during the robbery, testified that defendant approached the station at approximately 6:30 p. m. The attendant went to wait on him in the office. Defendant asked for change for a $20 bill for the cigarette machine. The attendant refused to get the change but did point out the cigarette machine. Defendant then pulled a gun stating that this was a robbery. The attendant handed over the cash register key. Defendant took most of the bills which were in the cash register and ran out the door, down Switzer Avenue and around the corner onto Oxford. The other key witness had just gotten into his car on the same block of Oxford at that time. He testified that he saw defendant running up the street holding money. Defendant jumped into a car which was driven by another man. This witness saw the car pull away and got the license number. He then drove to the service station, found it had been robbed, and proceeded after defendant’s car. He encountered policemen after about three miles. They stopped defendant’s car and arrested him and his companion. Other evidence admitted was a gun in a holster found in the glove compartment of the car, $56.00 found in the car under the defendant’s seat, and $56.00 which the police found in defendant’s pocket and seized when he got out of the car. The attendant and the other witness positively identified defendant at the trial. They also identified defendant immediately after he was taken into custody though he was then wearing some different top clothing.

Defendant presented alibi evidence and took the stand to declare his innocence. He asserts the fact that he was wearing different clothes when arrested than those the robber was described as wearing was inconsistent with his guilt and therefore requires his release. But evidence was presented that defendant may have changed his clothes while in the car. The effect of contradictions and inconsistencies in the evidence are questions for the jury. State v. Turnbough, 497 S.W.2d 856, 858[5] (Mo.App.1973). There was substantial evidence supporting the verdict.

Defendant’s second point of error is not properly preserved because it was not called to the attention of the trial court as a ground or reason for the objection. State v. Jones, 515 S.W.2d 504, 506[3, 4] (Mo.1974). Defendant contends the testimony concerning the amount of money stolen was improperly admitted because the best evidence, the business record, was not produced. Defendant’s only objection at trial was that no proper foundation was laid for the evidence of the amount stolen. The point is therefore waived. In this connection, however, such a contention properly preserved has been held lacking in merit. State v. Berns, 502 S.W.2d 364, 369[6] (Mo.1973).

Defendants contends that no clear connection was shown between the money found on him or under his car seat when he was arrested and the money taken in the robbery. As circumstantial evidence, with the close time element and similarity in the amounts of the money found with that taken, the amount of the money seized is relevant. State v. Britt, 504 S.W.2d 38, 42[4] (Mo.1973). This point was correctly decided by the trial court.

Finally, defendant contends that improper rebuttal testimony was admitted. Any competent testimony that tends to explain, counteract, repel, or disprove evidence offered by defendant may be offered in rebuttal of defendant’s testimony. State v. Williams, 442 S.W.2d 61, 65[7-9] (Mo.1968). Testimony of the distance between the alibi address and that of the robbery easily fits into this category. The extent and nature of rebuttal testimony is within the sound discretion of the trial court. State v. Adams, 465 S.W.2d 536, 540[4] (Mo.1971); State v. Kirk, 510 S.W.2d 196, 199 [4, 5] (Mo.App.1974). We find no abuse of discretion.

The judgment is affirmed.

DOWD and CLEMENS, JJ., concur.


text:
    Dennis LIGHT, a minor, et al., and Franklin Perry Rollins, a minor, et al., Plaintiffs-Appellants, v. Edgar Joseph LANG, a minor, and Pacific Fire Protection District, et al., Defendants-Respondents.
    Nos. 36160, 36161.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 3, 1976.

      London & Greenberg, Burton M. Green-berg, C. John Pleban, St. Louis, for plaintiff s-appellants.
    Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Joseph H. Mueller, St. Louis, Anding & Anding, Pacific, Jenny, Cole & Eckelkamp, Briegel & Kimme, Union, H. Edward Skinner, St. Louis, Politte & Thayer, Washington, for defendants-respondents.
   WEIER, Presiding Judge.

Plaintiffs appeal from the dismissal of their suits for failure to state a claim against defendants-respondents: the City of Pacific, Robertsville Fire Department, Pacific Fire Protection District, and Southwestern Bell Telephone Company. These suits arise from one automobile accident and have been consolidated by the appellants due to the similarity of the petitions and issues presented for review.

On a motion to dismiss for failure to state a claim, the court will assume to be true all facts alleged by plaintiffs as well as all reasonable inferences which can be deduced from those.facts. Laclede Gas Co. v. Hampton Speedway Co., 520 S.W.2d 625, 629[4] (Mo.App.1975); Hunt v. Dallmeyer, 517 S.W.2d 720, 723[4] (Mo.App.1974). Matters raised by defendants in their motion to dismiss do not prove themselves and must be supported by the petition or evidence in the transcript to be the basis for a dismissal. Rule 55.27; Johnson v. Great Heritage Life Insurance Co., 490 S.W.2d 686, 689[5] (Mo.App.1973); Cobb Builders, Inc. v. Naidorf, 472 S.W.2d 33, 34[1] (Mo.App.1971); Fine v. Waldman Mercantile Co., 412 S.W.2d 549, 551[1] (Mo.App.1967). Under these authorities, it is clear that the trial court correctly held that appellants have not stated a cause of action against each respondent. The decision is affirmed.

As to the facts of liability and the status and relationship of the parties, the petitions in each case are identical. On June 17, 1973, the motorcycle upon which plaintiffs were riding allegedly collided with an automobile driven by defendant Lang. At that time Lang, a Junior Volunteer Fireman, was responding to what he found out later was a false alarm. Plaintiffs filed their suits on December 19, 1973 and January 2, 1974, and defendants-respondents who are named here filed timely motions to dismiss. On April 9, 1974, the trial court dismissed respondents from the actions. The remaining defendants were dismissed without prejudice by agreement of the parties on June 13, 1975. Because the dismissal of each defendant-respondent is predicated on a different legal principle, each will be treated separately in this opinion.

I. CITY OF PACIFIC

Plaintiffs allege that the City of Pacific is a municipal corporation with a duty to keep the public streets in a reasonably safe condition. They also allege causation, injury, and specific negligent acts based on theories of respondeat superior and maintaining a nuisance by retaining Lang as an employee.

The trial court did not state a specific reason for sustaining the City’s motion to dismiss. Defendant City suggests the motion was sustained on the grounds of governmental immunity. Plaintiffs have not mentioned this doctrine and only suggest, generally, that sufficient facts to state a cause of action were alleged against this defendant. We agree that the doctrine of governmental immunity clearly applies in this case.

Missouri has long applied the doctrine of governmental immunity to torts arising out of the acts of municipal employees while performing a governmental function. Varnal v. Kansas City, 481 S.W.2d 575, 580[6] (Mo.App.1972). This immunity has been extended to the negligent driving of fire equipment in response to an alarm, Richardson v. City of Hannibal, 330 Mo. 398, 50 S.W.2d 648, 649[1] (banc 1932), as well as to the retention of a policeman with an extremely dangerous temperament, Hinds v. City of Hannibal, 212 S.W.2d 401 (Mo.1948). See Fette v. City of St. Louis, 366 S.W.2d 446 (Mo.1963). Sovereign immunity is the public policy of Missouri and any change is the prerogative of the General Assembly. O’Dell v. School District of Independence, 521 S.W.2d 403 (Mo. banc 1975); Pitts v. Malcolm Bliss Mental Health Center, 521 S.W.2d 501, 503[1, 2] (Mo.App.1975). The legislature has not seen fit to change this rule; therefore plaintiffs do not have a cause of action against the City of Pacific.

II. ROBERTSVILLE FIRE DEPARTMENT

Plaintiffs allege that Robertsville Fire Department, Inc. is a corporation which, together with Pacific Volunteer Fire Department and Pacific Fire District, has merged into Pacific Fire Protection District. The specific negligent acts attributed to this defendant are:

“(1) On or about June 17, 1973, and for a long time prior thereto, said defendant in violation of Mo.Rev.Stat., Sections 304.-022 and 307.175, caused, created and permitted to exist a set of circumstances wherein and whereby minors under the age of twenty-one (21) years, lacking in proper discretion necessary for the operation of a dangerous instrumentality * * * , including the defendant Lang, were allowed to act in the capacity of “Junior Volunteer Fireman”. As such, this defendant allowed, permitted and sanctioned the use of emergency type blue lights on private vehicles operated by such “Junior Volunteer Firemen”, and the defendant Lang, * * *.
(2) In allowing, permitting, sanctioning and approving the conduct referred to in paragraph (1), supra, this defendant knew, in time before June 17, 1973, or should have known, that it was thereby creating a set of circumstances highly dangerous to members of the public * * *.
(3) On or about June 17, 1973, said defendant caused and permitted a “Junior Volunteer Fireman”, the defendant Lang, to operate his private vehicle in [a] negligent manner * * * in a non bona fide emergency. * * * without using or sounding a warning siren * * *, [and] without first giving to him a permit in writing to equip his said vehicle with a blue light * * *.
(6) On or about June 17, 1973, and for a long time prior thereto, said defendant allowed, permitted and sanctioned the use of an emergency type blue light on the private vehicle operated by the “Junior Volunteer Fireman”, the defendant Lang, * * * without adequately supervising and training the said defendant Lang, * * *.
(7) On or about June 17, 1973, this defendant negligently and carelessly caused to be sounded a fire alarm, to which the defendant Lang allegedly responded * * * although this defendant knew, or in the exercise of the proper degree of care should have known, that there was in fact no fire and no bona fide emergency-
(8) * * * [Plaintiffs were injured] all as a result of the set of circumstances allowed, caused, permitted and sanctioned by the defendant Robertsville Fire Department, Inc. delineated in the foregoing paragraphs * * *

Plaintiffs do not in any other part of their petition allege a specific relationship between defendant Lang or the “Junior Volunteer Firemen” and this defendant or any other fire department.

Robertsville Fire Department filed a motion to dismiss based on the grounds that they did not know Lang and had no involvement in the collision in which plaintiffs were injured. This motion was sustained without written opinion and Robertsville Fire Department has filed no brief with this court. Plaintiffs treat the motion as one for failure to state a claim. We will assume the motion was sustained on the grounds suggested by the movants. Ezell v. Ezell, 348 S.W.2d 592, 596[5] (Mo.App.1961).

Plaintiffs base their cause of action on the theories of respondeat superior and maintaining a nuisance rather than on the direct involvement of respondents in the collision. They correctly note that a legitimate fact issue cannot be resolved through a motion to dismiss. Ezell v. Ezell, supra. Although respondent’s motion is ambiguous it does not raise a fact question but instead points up the serious defect in plaintiffs’ pleadings under their theory of recovery. They failed to plead a master-servant relationship.

Under the doctrine of respondeat superior an employer is liable for those negligent acts or omissions of his employee which are committed within the scope of his employment. Beckwith v. Standard Oil Co., 281 S.W.2d 852, 854 (Mo.1955). A submissible case of liability based on respondeat superior requires some evidence that k master-servant relationship existed between the parties. Usrey v. Dr. Pepper Bottling Co., 385 S.W.2d 335, 337[1] (Mo.App.1964). Plaintiffs have alleged no such relationship. Actions were instituted against four fire departments without a clear explanation of their relationship to each other or the defendant Lang. Plaintiffs are entitled to all reasonable inferences which can be deduced from the pleadings. Hunt v. Dallmeyer, supra, 517 S.W.2d 720. We do not, however, think it is reasonable to infer that at the time of the alleged collision defendant Lang was the agent, employee or servant of this defendant rather than or in addition to the other fire departments.

Respondeat superior is based on the principle that the master controls the actions of his servants and therefore the servants’ actions are attributable to the master. It is not necessary to plead the agency relationship when the allegation is that the act was committed by the master or principal. Bauer v. Holtkamp, 389 S.W.2d 850, 852[4] (Mo.App.1965). This concept does not, however, make it unnecessary to plead and prove a master-servant relationship where no direct involvement of the master is shown. Plaintiffs specifically pleaded that defendant Lang was the “agent, employee and servant” of the City of Pacific. Since we find no similar words connecting defendant Lang with the other respondents, we can only assume this necessary relationship did not exist. Without a master-servant relationship, plaintiffs have no cause of action against this defendant under the doctrine of respondeat superior.

Plaintiff’s attempt to plead a case of maintaining a nuisance by retaining Lang as an employee has also failed. The most that is pleaded is that respondent helped set up the program in which defendant Lang participated and that respondent failed to abandon it prior to the alleged collision. We find no precedent for tort liability based upon so tenuous a relationship. The trial court properly dismissed Robertsville Fire Department from the suit.

III. PACIFIC FIRE PROTECTION DISTRICT

Plaintiffs’ allegations against Pacific Fire Protection District are identical to those brought against Robertsville Fire Department. The Pacific District filed a motion to dismiss on the grounds that it was formed under Chapter 321, RSMo 1969 and therefore not liable for the tortious acts of its agents. The motion was sustained without written opinion. We will assume the dismissal was based on the grounds asserted in the motion. Ezell v. Ezell, supra.

Fire protection districts are political subdivisions of the state. § 321.010(1), RSMo 1969. It has been widely held that in the absence of express statutory provision to the contrary, political subdivisions are not liable for negligent acts performed in a governmental function. Smith v. Consolidated School District No. 2, 408 S.W.2d 50, 53[4, 5] (Mo. banc 1966). Fire protection is a governmental function. Richardson v. City of Hannibal, supra, 50 S.W.2d 648. Respondent is therefore cloaked with sovereign immunity. Glenn v. Department of Corrections, 434 S.W.2d 473, 475[5] (Mo.1968); Cullor v. Jackson Township, Putnam County, 249 S.W.2d 393, 396[4] (Mo.1952).

Plaintiffs urge that the repeal of § 321.705, RSMo 1959, somehow alters this rule. We do not agree. Section 321.705 expressly provided that fire protection districts were not liable for the tortious acts of their agents. When this statute was repealed in 1969, § 321.220(3), RSMo 1969, was enacted specifically granting the districts the power “[t]o sue and be sued.” It has been repeatedly held, however, that a statute providing for the waiver of immunity from suit does not waive immunity from tort liability. Page v. Metropolitan St. Louis Sewer District, 377 S.W.2d 348, 352[1, 2] (Mo.1964); Todd v. Curators of University of Missouri, 347 Mo. 460, 147 S.W.2d 1063, 1064[2] (1941). Sovereign immunity is a common law doctrine and repeal of § 321.-705 does not change that doctrine. O’Dell v. School District of Independence, supra, 521 S.W.2d 403. No statutory section specifically referring to tort liability of fire districts has been enacted. No such liability has been created. Plaintiffs have no cause of action against Pacific Fire Protection District.

IV. SOUTHWESTERN BELL TELEPHONE CO.

Plaintiffs allege that Southwestern Bell operated a telephone and alarm system used by defendant fire departments to dispatch fire fighting personnel in emergencies. Specifically, they allege that on the afternoon of June 17, 1973 this alarm system negligently malfunctioned “with the direct result that the defendant Lang responded to said false alarm and drove his vehicle in [a] negligent manner” thereby injuring plaintiffs. Respondent’s motion to dismiss for failure to state a claim was sustained without written opinion. Plaintiffs’ petition is defective, not because it contains insufficient facts to state a claim, but because, as respondent has observed, it has pleaded too much.

Plaintiffs base their cause of action on the proposition that companies are liable for the results of their negligence in transmitting messages. Reed v. Western Union Tel. Co., 135 Mo. 661, 37 S.W. 904, 905 (1896). Negligent parties, however, are only held liable for the proximate and foreseeable results of their actions. Gottman v. Norris Construction Co., 515 S.W.2d 861, 863[1] (Mo.App.1974). If no danger existed to plaintiffs until the intervention of an independent negligent act, the first negligent act is not the proximate cause. King v. Ellis, 359 S.W.2d 685, 689[5] (Mo.1962); Duke v. Missouri Pacific Railroad Co., 303 S.W.2d 613, 617[4] (Mo.1957).

Plaintiffs have alleged that defendant Lang drove at an excessive speed, failed to keep a lookout, failed to swerve, gave no warning sound, did not have his automobile in control, was driving on the wrong side of the road, and swerved into plaintiffs’ motorcycle. Even if only some of these acts of negligence were proven at trial, they would be sufficient to form an independent cause for plaintiffs’ injuries. Where it is clear defendant’s negligence was not the proximate cause of plaintiffs’ injury, a case may properly be dismissed for failure to state a claim. Smith v. Mabrey, 348 Mo. 644, 154 S.W.2d 770, 771[1-4] (1941); Lewis v. Esselman, 539 S.W.2d 581 (Mo.App.1976). Respondent was properly dismissed from this action for this reason.

Judgment affirmed.

McMILLIAN and RENDLEN, JJ., concur.

      . The allegations are substantially the same as those made against Robertsville Fire Department and Pacific Fire Protection District except that Lang is specifically alleged to be the “agent, employee, and servant” of the City.

      . In the only case where a city was held liable for damages caused by its fire department, the court specifically stated that the liability was imposed on the city in its capacity as landowner for intentionally creating and maintaining a nuisance on its land which injured the adjacent property. Rodgers v. Kansas City, 327 S.W.2d 478, 481-2[1, 2] (Mo.App.1959).

      . Respondent specifically referred to § 321.705, RSMo 1959, which was repealed in 1969 as part of the complete revision of Chapter 321.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Paul Richard JINES, Defendant-Appellant.
    No. 35952.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 3, 1976.

      Rader & Richey, Rader, Smith & Calvin, Cape Girardeau, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Chief Counsel, Crim. Div., Asst. Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, A. J. Seier, Pros. Atty., Cape Girardeau, for plaintiff-respondent.
   DOWD, Judge.

Defendant was convicted by a jury of kidnapping, Section 559.240 RSMo 1969, in two counts and sentenced to two years imprisonment on each count, the sentences to run concurrently. He appeals.

We review the evidence in the light most favorable to the state and in conformance with the verdict. State v. Wiley, 522 S.W.2d 281, 292[19] (Mo. banc 1975); State v. Wilborn, 525 S.W.2d 87, 90[2] (Mo.App.1975).

On January 16,1973 at about 3 p. m., two young girls, Miss Smith, age 15 and Miss Brown, age 17, were walking down Main Street in Cape Girardeau. Defendant, driving a late model brown station wagon, stopped and asked for directions to the water plant. He drove away and the two girls continued their walk. About a block later he stopped again and asked that the directions be repeated. Miss Brown explained the directions again. Defendant asked, “Would you girls like to show me?” Miss Brown replied, “No, we have got to get home.” At this point defendant pulled a gun from under a topcoat that was laying on the front seat and said, “Get in . I’m ordering you girls in the car.”

The girls got in the back seat of the car. Defendant rolled up the windows and locked the doors. Then he turned the car around and drove north on Main Street. Defendant told them a “buddy” had gotten shot in connection with a bank robbery and asked them whether they had heard anything about it on the radio. He also inquired as to where area hospitals were located. He stated that if they cooperated, everything would be all right, but also said that if his “buddy” were alive in the hospital, it would not matter if he shot the girls since the “buddy” had enough evidence to put him (defendant) “away.” He further stated he could kill the girls and no one would ever know. He drove to the water plant, turned around and drove in the opposite direction, then pulled off the shoulder of the road. He told the girls to close their eyes and he put masking tape over their eyes. The tape extended vertically across their eyes and into their hair. While taping the Smith girl’s eyes, she started screaming and the defendant put a gun to her head and said he would shoot her. Then he told them to lay down in the seat so nobody would see them. He lifted Miss Brown’s shirt and brassiere and fondled her breasts. After several minutes, he told Miss Brown to button her blouse, and told both girls he was going to let them go because they were of no help to him. He removed the tape, pulling off hair as he did so, and told them to keep their eyes closed until he let them out. He stopped at a Quick Shop, unlocked the doors and let them out. From the Quick Shop the girls called the police. The police took them to the police station. Defendant was arrested by a police officer at 5:45 p. m. on the same date in an auto agency lot in Cape Girardeau.

Defendant’s first contention on appeal is that there is insufficient evidence to establish the identity of defendant because testimony was “contradictory or totally lacking.” He further argues that the testimony of the two victims “so lacked credibility that no jury could have, on the basis of their testimony, found defendant guilty.” We disagree and obviously the jury did also. The girls were abducted by the defendant in broad daylight and they positively identified him a few hours later at the police station and also in court. Discrepancies in testimony and questions of credibility are to be resolved by the jury. State v. Brager, 497 S.W.2d 181, 182[2] (Mo.1973). The contention is without merit.

Defendant next argues that no secret confinement or intent to secretly confine was proven by the state as required by § 559.240(1). He bases this argument on the fact that the girls were driven in broad daylight through a residential neighborhood, and only their eyes were taped closed, not their mouths so that communication was possible. This contention is disposed of by State v. Weir, 506 S.W.2d 437 (Mo.1974). The facts in Weir are closely parallel to the case at bar. The Weir case involved an abduction of a young woman from the street into a car under the threat of a gun, with an apparent sexual purpose. In Weir the abduction also occurred in the middle of the day, and the victim was driven around for about thirty minutes in a heavily populated area, although she was taken eventually to an isolated field. In Weir the court stated, “Secret confinement, within the meaning of § 559.240, does not require proof of total concealment and complete isolation whereby the victim is rendered invisible to the entire world. It is sufficient to show that the person kidnapped has been effectively confined against his will in such a manner that he is prevented from communicating his situation to others and accused’s intention to keep the victim’s predicament secret is made manifest.” Supra at 440[5]. The facts here are sufficient to establish secret confinement as defined in Weir. The girls’ eyes were taped closed at gunpoint which kept them from knowing their whereabouts. The abductor electronically locked the doors of the car so the girls could not escape. In contrast to Weir, the windows of the car were here rolled up so the victim’s screams and attempts to communicate were unavailing. Also, the victims were ordered to lay down on the seat of the car so that no one would see them. Thus, the offense of kidnapping with intent to secretly confine the girls against their will has been clearly established.

Defendant next contends the court erred in permitting the introduction of certain physical evidence including the tape, hair found on the tape, and items of clothing. Defendant argues that there was a break in the chain of custody as to this physical evidence. We disagree. The record here shows that there was no break in the chain of custody. Officer Stover testified that he alone had the key to the locker where the evidence was kept.

Furthermore, the evidence established that the physical evidence in question was the same as that which was seized from defendant’s car, held in custody in Officer Stover’s locker and examined by criminalist Rodger Morrison. The chain of possession requirement is designed to prevent tampering, alteration, or substitution. State v. Rose, 428 S.W.2d 737, 740[3] (Mo.1968); State v. Baity, 494 S.W.2d 425, 429[11] (Mo.App.1973). Numerous witnesses positively identified the exhibits and there was no evidence suggesting that the evidence had in any way been altered or substituted since defendant’s arrest. The state’s evidence need only provide reasonable assurance that the exhibit was the same at trial as when first obtained, State v. McCrary, 478 S.W.2d 349, 351 (Mo.1972). We find it was not erroneous to admit these items into evidence.

Defendant makes two contentions here which are not preserved for our review. One contention pertained to the admission of the expert testimony of the criminalist and the other to the closing argument of the prosecutor. In neither case was there an objection made during trial and thus the contentions are not preserved for appellate review. State v. Jones, 515 S.W.2d 504, 506[3] (Mo.1974); State v. McCreary, 504 S.W.2d 132, 136[11] (Mo.App.1973).

Defendant also challenges Instruction No. 2 given by the trial court. The instruction was given on December 5, 1973 and was the standard pre-MAI-CR instruction on reasonable doubt and burden of proof. The specific instruction contested has been upheld frequently. See, e. g., State v. Aikens, 507 S.W.2d 386, 389[6] (Mo.1974); State v. Davis, 529 S.W.2d 10, 16[11] (Mo.App.1975). In State v. Scott, 491 S.W.2d 514, 520[11] (Mo. banc 1973), the court noted that this particular instruction had successfully withstood similar attacks for more than 100 years.

Defendant’s final contention is that the court erred in denying his motion to suppress the evidence and allowing the seized evidence to be introduced at trial because no search warrant had been obtained. He further contends that the defendant was not advised of his constitutional rights. In reaching the latter contention, we simply note that the arresting officer testified both at the pretrial hearing on the motion to suppress and at trial that he advised defendant of his constitutional rights as soon as they arrived at the police station. Probable cause for defendant’s arrest was supplied by the statements and description given to the police by the two victims.

As to defendant’s claim of an illegal and warrantless search, we hold that the physical evidence which defendant moved to suppress, i. e., masking tape, a black and white bag, and a topcoat, were all within plain view within his automobile and so were lawfully seized. State v. Rankin, 477 S.W.2d 72, 75[4] (Mo.1972). It is of no consequence that the items were not seized instantly when they were first viewed, at the time of the arrest. Where items are exposed to the plain view of police officers, officers may later take a second look at such items and seize them. State v. Achter, 512 S.W.2d 894, 905[26] (Mo.App.1974). In addition, if police officers have probable cause to search a vehicle at the scene of the arrest, then they may constitutionally search the vehicle later at the station house without first obtaining a warrant. Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975), Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

We find no reversible error in any of the nine points relied on, and accordingly the judgment of the trial court is affirmed.

CLEMENS, P. J., and STEWART, J., concurs.

      . The names of the two victims used here are fictitious.

      . Also see the recent United States Supreme Court case of South Dakota v. Opperman, — U.S. —, 96 S.Ct. 3092, 3096, 49 L.Ed.2d — (1976) which involved an inventory search of an auto. The Supreme Court stated:
      “Besides the element of mobility, less rigorous warrant requirements govern [searches of automobiles] because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.”


author: FONES, Justice. HARBISON, Justice

text:
    Petition of TENNESSEE BAR ASSOCIATION for an order requiring annual license fee of all practicing attorneys for disciplinary purpose. Petition of CERTAIN LAWYERS FOR ORGANIZATION OF the STATE BAR.
    Supreme Court of Tennessee.
    June 1, 1976.
    See also, Tenn., 539 S.W.2d 810.
   FONES, Justice.

OPINION AND ORDER OVERRULING MOTIONS AND PETITION OF Al S. Barger, Leon W. Davis, Jr., U. L. McDonald, Joe M. Parker, Richard H. Winningham.

The above named Petitioners, hereinafter referred to as Barger, et al, filed a complaint against the Supreme Court of Tennessee in the Chancery Court of Hamilton County seeking a decree declaring void a Supreme Court Rule promulgated on December 18, 1975.

The Supreme Court of Tennessee responded by filing both in the pending cause in this Court and in the Chancery Court of Hamilton County an Opinion and Order dated March 30, 1976. Therein, the Supreme Court documented the relevant proceedings that had transpired from the initiation by the Tennessee Bar Association, a voluntary organization of lawyers, of an original Petition to amend Rule 42, establish an office of investigative counsel, and impose an annual license fee on lawyers to support said office, filed on May 9, 1974, to the Opinion and Order of the Supreme Court of Tennessee released on December 18, 1975. In the March 30, 1976 Order it was observed that the inferior Courts of this State may not entertain any suit or action challenging the validity of any Rule of the Supreme Court of Tennessee and that such a proceeding is unknown to the law. In short, it was held that the trial courts of this State have no jurisdiction over the Supreme Court of Tennessee as a party litigant, nor does subject matter jurisdiction exist for the purpose of examining the propriety and correctness of the Opinions and Decrees of the Supreme Court of Tennessee.

The Opinion and Order of March 30,1976, concluded by noting, in effect, that the proceedings in the Supreme Court of Tennessee wherein Rule 42 was promulgated are still pending and that Petitions to amend, modify or vacate Rule 42 or any other Rule of the Supreme Court may be filed at any time; further, that the Complaint of Barger, et al would be transferred to this Court and treated as a Petition to Vacate or Modify Rule 42.

The subsequent actions of the Learned Chancellor of the Chancery Court of Hamilton County, Part II, and Barger, et al clearly indicate that they do not comprehend the import of that Order and are unwilling to abide by it.

The learned Chancellor filed a Memorandum and Order dated April 5, 1976, noting in the first paragraph thereof that the suit by Barger, et al was against the Supreme Court of Tennessee. He then turns to the Rules of Civil Procedure and observing that they contain no explicit Rule exempting parties sued in a representative capacity from asserting defenses in accord with Rule 12.02 Tennessee Rules of Civil Procedure, he ultimately concludes that:

“[T]his Court is unaware of any appellate procedure known to the law whereby the parties in the posture of defendants in the trial Court can order a case dismissed as a Supreme Court without first having gained jurisdiction over the law suit through appellate procedures. The Court, therefore, concludes that the Order signed by the five defendants as the Supreme Court of this State, insofar as it directs and orders this Court to dismiss this case, is void for want of jurisdiction.”

Said pronouncement is in effect an adjudication by the Chancellor that the Chancery Court of Hamilton County, Tennessee, and it follows any other trial court in the State Court System, has jurisdiction over the Supreme Court of Tennessee, as a party defendant and jurisdiction of the subject matter of the Orders and Decrees of the Supreme Court for the purpose of reviewing and voiding same.

A search of Gibson’s Suits in Chancery, the statutes and case law of this State and our sister states does not reveal any authority whatsoever for such jurisdiction and none is advanced by the Chancellor or Bar-ger, et al. The premise is simply indulged that the Chancery Court has jurisdiction over the Supreme Court as a party defendant and jurisdiction to consider the validity and propriety of the Opinions and Decrees of the higher Court. It would necessarily follow that the trial courts of this State would have jurisdiction over the Court of Appeals and the Court of Criminal Appeals to review, reverse and void the final Decrees of the intermediate appellate courts.

Barger, et al, ignoring the plain provision of the order of March 30, 1976, that the only issue to be briefed and argued was the constitutionality of Rule 42, have filed several motions. The motion to recuse was overruled at the bar of the Court on May 7, 1976. The motion to strike Petition and Brief of Louis Farrell, Jr., is denied. Bar-ger, et al, represent themselves as lawyers “who have solemnly and properly attempted to obtain an adjudication of constitutional issues.” This Court has heretofore held that the only forum wherein that adjudication can be made is the Supreme Court of Tennessee, but in the face of that final pronouncement they persist in pursuing a spurious and untenable course. The language of the brief of which they take exception is well within the bounds of advocacy, in the circumstances, and is a scholarly, well reasoned brief. Mr. Farrell is an active petitioning party to the above styled proceeding and has every right to be heard on the subject matter here involved, a right possessed equally with every other lawyer in Tennessee.

The argument is again made that this Court’s jurisdiction is appellate only, and therefore we must abide the usual procedure of pleading in the trial court and awaiting a final decree therein and a timely appeal before the Supreme Court has any jurisdiction — even though a final judgment of this Court is the subject matter of the complaint.

The Supreme Court of Tennessee has original and exclusive jurisdiction to promulgate its own Rules. Its rule making authority embraces the admission and supervision of members of the Bar of the State of Tennessee.

Rule 37 prescribes the qualifications required for the practice of law and controls the examination and licensing procedure and the fees to be charged therefor. This Rule was prescribed and has been amended many times and from time to time by the Supreme Court exercising original jurisdiction without notice and without hearings. No other Court in Tennessee has jurisdiction to promulgate a Rule governing the licensing of attorneys, and no other Court in Tennessee has jurisdiction to review and change or void any Rule promulgated by this Court. No count in the state court system has jurisdiction to entertain a suit against the Supreme Court of Tennessee, and a suit naming the members in their representative capacity is a suit against the Court.

In Belmont v. Board of Law Examiners, 511 S.W.2d 461 (Tenn.1974), the Supreme Court exercising original jurisdiction of a proceeding involving the constitutionality of T.C.A. § 4-1902, a legislative act in direct conflict with Supreme Court Rule 37, Section 7, addressed the jurisdictional question as follows:

“Prior to discussing the constitutional question herein involved, we must make it clear that the petition to review the action of the Board of Law Examiners in denying petitioner’s request to take the examination for the fifth time is properly before this Court. We reach the foregoing conclusion because this Court has the inherent power to prescribe and administer rules pertaining to the licensing and admission of attorney and as a necessary corollary thereto, no other court in Tennessee can construe or determine the applicability of a rule used to implement that power. It results, therefore, if this Court has the inherent and original power to prescribe the rules, then this Court has the original power to review the action of the Board of Law Examiners in interpreting and applying them.”

511 S.W.2d at 462.

In Petition for Rule of Court Activating, Integrating and Unifying the State Bar of Tennessee, 199 Tenn. 78, 282 S.W.2d 782 (1955), the Supreme Court exercised original jurisdiction of a petition to adopt a rule of court. At that time the members of this Court were Chief Justice A. B. Neal, Justices Allen N. Prewitt, Pride Tomlinson, Hamilton S. Burnett and John E. Swepston.

The lawyers opposing unification urged, as a threshhold issue, that Chapter 54, Public Acts of 1955 prohibited unification and that the Supreme Court had no jurisdiction to pass upon the constitutionality of that legislative Act in the pending proceeding, wherein the Court was exercising original jurisdiction, because the jurisdiction of the Supreme Court was appellate only.

The Supreme Court, Justice Tomlinson writing, answered that contention as follows:

“If Courts have inherent power to prescribe qualifications required for the practice of law, it seems to follow, as held by the Supreme Court of Massachusetts, in Collins v. Godfrey, 324 Mass. 574, 87 N.E.2d 838, 841, that ‘the Supreme Judicial Court, as under the Constitution the highest court in the Commonwealth, is the proper representative of the judicial department and the repository of the power.’ This Court’s power, then, in this respect is original, rather than appellate. That being true, its adjudication as to whether Chapter 54 deprives it of this original authority is only an incident to its decision as to whether it will exercise such authority.” (Emphasis added).

282 S.W.2d at 784.

That is precisely the jurisdictional issue involved here. The holding of our predecessors on this Court in 1955 was sound and controls absolutely the disposition of the issue of jurisdiction raised here.

The Supreme Court had jurisdiction of the issue of the constitutionality of this Court’s authority to impose an annual license fee on lawyers and adjudicated that issue on December 18, 1975. It was a final adjudication, subject only to a Petition to Rehear in accord with the requirements of Supreme Court Rule 32. In our Order of March 30, 1976, transferring the Barger, et al Complaint to this Court, we waived the time requirement of Rule 32 and extended to Barger, et al the opportunity to, in effect, brief the question as on a Petition to Rehear and they have declined to do so.

In State ex rel, Stall v. City of Knoxville, 211 Tenn. 428, 365 S.W.2d 433 (1963), the Supreme Court was confronted with a case pending but undecided in the Chancery Court of Knox County wherein the complainants were attempting to obtain an adjudication on an identical issue that the Supreme Court had theretofore finally adjudicated. This Court enjoined any and all further prosecution of the case in the Chancery Court and held:

“It has long been recognized in this State that our Court has the authority and duty to issue such writs and process as are necessary to carry into execution its final orders and decrees and to protect Trial Courts from being imposed upon by the commencement of suits which have been already finally determined.”

365 S.W.2d at 436.

When the present Supreme Court of Tennessee was served with process issuing out of the Chancery Court of Hamilton County, Tennessee, the Court responded by filing therein a dignified and respectful Opinion and Order stating the lack of jurisdiction in the Chancery Court of Hamilton County to proceed.

It was, and continues to be, astonishing and unprecedented in the law, that the propriety, and the finality of that order is disputed. A less tenable or more absurd proposition cannot be advanced than the contention that the Supreme Court of Tennessee must appear by counsel in a trial court and plead its case for jurisdiction over the promulgation of rules governing the practice of law, and ask through counsel that its judgment, entered and final, not be overturned.

No other court in the Tennessee system of Courts can wrest jurisdiction of the issue of the constitutionality of Rule 42 from this Court, and any effort to do so is a direct interference with the jurisdiction and decrees of this Court.

A permanent injunction will issue enjoining and restraining Al S. Barger, Leon W. Davis, Jr., U. L. McDonald, Joe M. Parker, Richard H. Winningham, Thomas H. Harris and Chancellor Herschel Pranks, and all of those for whom they are acting, in the further prosecution in the courts of the State of Tennessee of the subject matter of the complaint filed February 27, 1976, in the Chancery Court of Hamilton County, Tennessee, and from interfering in any manner, directly or indirectly, with the judgment of this Court as rendered in the above styled cause on December 18, 1975, March 30, 1976, and the judgment of this date, except for whatever remedies they may elect to pursue in the Federal Courts.

COOPER, C. J., and HENRY, BROCK and HARBISON, JJ., concur.

HARBISON, Justice

(concurring).

I concur in the opinion prepared for the Court by Mr. Justice Fones. I think that a few additional comments about the actions which this Court has taken may be in order.

For many years the Supreme Court of Tennessee has adopted and prescribed professional standards governing the practice of law in this state. Insofar as I am aware, no member of the profession has heretofore challenged in any manner the authority of this Court so to do.

At 185 Tenn. 889 will be found the following order of the Court, included among the Rules of the Tennessee Supreme Court effective August 31, 1948:

“The ethical standards relative to the practice of law, and the administration of the law in this Court shall be the Canons of Professional and Judicial Ethics of the American Bar Association now in force, and as hereinafter modified or supplemented.”

At least since 1903, this Court has had statutory power to appoint a Board of Law Examiners, T.C.A. § 29-101, and to “prescribe rules to regulate the admission of persons to practice law . . . .” T.C.A. § 29-103.

The practice of law is defined in great detail in T.C.A. § 29-302. Only persons duly licensed under the rules and regulations of this Court are entitled to engage therein, T.C.A. § 29-303, and these rules and regulations have for many years required the payment of a license fee.

By its Rule 40, appearing at 192 Tenn. 827, this Court many years ago provided for the appointment of members of the Bar to investigate grievances or complaints against lawyers charged with misconduct. The Rule also provided for the appointment of counsel to institute disbarment proceedings. This Rule was later readopted as Rule 42, and by order dated July 19, 1965, which is copied verbatim in 1 T.C.A. at pages 176 et seq. (1975 Supp.), the Court, acting upon a petition of the Tennessee Bar Association, set up commissioners for the purpose of investigating complaints of unethical conduct and professional misconduct on the part of attorneys.

To implement enforcement of the standards of professional ethics and responsibility, the order of July 19, 1965 directly involved the Board of Governors of the Tennessee Bar Association and local bar associations, in the manner set out in detail in that Rule. The use of investigative committee reports under Rule 42 has received express sanction by the General Assembly. T.C.A. § 29-309.

In 1974 the Tennessee Bar Association reported to this Court, through its Board of Governors, and by a petition and brief duly filed, that the methods heretofore selected and utilized for the enforcement of the Canons of Ethics, now referred to as the Standards of Professional Responsibility, were no longer practicable or workable. The Tennessee Bar Association had neither the personnel nor the funds with which to make the voluntary system prescribed in Rule 42 effective or operable. Local bar associations continued to function reasonably well in the larger urban centers of the state. Smaller bar associations and unorganized Bars were simply unable to handle the investigation of grievances and the enforcement of standards of professional responsibility. The Tennessee Bar Association therefore requested this Court to revise Rule 42 and the 1965 order above referred to.

It was in response to this petition of the Tennessee Bar Association and upon information developed therefrom that the Court chose a different and alternative method of enforcing the standards of professional ethics and the investigation of grievances. This the Court felt it had to do in the interest of the public and also in the interest of the members of the profession itself.

Instead of relying upon the efforts of the Tennessee Bar Association and the voluntary services of individual lawyers and local bar associations, the Court chose a method by which the financing of grievance investigations and enforcement of professional standards would be shifted to the entire membership of the state’s legal profession and upon all persons holding a license to practice law in this state, with the exceptions set out in the new Rule 42 issued by the Court.

It is difficult to believe that this action on the part of the Tennessee Supreme Court can properly be called a usurpation of power or a violation of constitutional principles or of individual rights. The Court, under Rule 42, is dealing with professional men and is attempting to deal with them in a professional manner. It has called upon them, for the protection of the public and for the protection of the integrity of their own licenses to practice law, to bear, in the form of a very small annual fee, the cost of establishing the office of Disciplinary Counsel and a staff to serve that office.

Neither the undersigned nor any other member of the Tennessee Supreme Court has now or has ever had any desire or intention to exercise unwarranted authority, or to interfere with the freedom or liberty of any individual or professional man. Both by statute and by inherent authority, however, this Court has long had and has exercised the role of prescribing and seeking to enforce and uphold the standards of professional responsibility in this State. The Court has chosen for this purpose a different method from that followed in the past for many years, but in doing so it is merely exercising one of the traditional powers which it holds, both by statute and of necessity from being the licensing and regulatory authority for the legal profession.

The Court has undertaken to extend to any member of the profession who questions its actions in any manner the right to file a petition, at any reasonable time, to ask the Court to reconsider or modify those actions. The Court has every intention of extending to any person desiring it a right of appeal to the United States Supreme Court, if he conceives that there is presented any issue which is properly reviewable in that Court.

The Court should not, however, and in my opinion can not, permit attacks to be made upon its rule making power in trial courts, nor can the members of the Supreme Court be required to appear at the bar of trial courts to defend rules made by them in their official capacities. In no sense is this Court or any of its members, “above the law”, but neither can it or its members be subjected to suits in the trial courts in the manner here attempted. Analogies to ordinary private or adversary litigation are fallacious, and attempts to apply the ordinary processes of civil litigation to the regulatory authority of this Court over the legal profession are inappropriate. Of course, if the Disciplinary Counsel or his staff are guilty of any misconduct in office, they may be required to answer in the courts in the regular way. Questions as to the authority of this Court to create the office or to promulgate Rule 42, however, must be addressed to this Court by proper petition, filed here.

I therefore concur in the opinion prepared by Mr. Justice Fones and hope that these few additional comments will serve to make more clear to the public and to the legal profession the action which has been taken by the Court and the reasons therefor.


author: HARBISON, Justice.

text:
    STATE of Tennessee ex rel. Philip M. CARDEN et al., v. William H. D. FONES et al. Petition of the TENNESSEE BAR ASSOCIATION.
    Supreme Court of Tennessee.
    June 1, 1976.
   OPINION AND ORDER

HARBISON, Justice.

This case is before the Court upon a petition for writs of certiorari and superse-deas filed on behalf of the Disciplinary Board of the Supreme Court of Tennessee, created under Rule 42 of the rules of this Court, and a like petition filed on behalf of Louis Farrell, Jr., an intervening petitioner in a cause pending in this Court styled In Re: Petition of the Tennessee Bar Association.

On April 23, 1976 the captioned action was instituted in the Chancery Court at Nashville on behalf of certain relators named therein, purporting to be in the nature of a quo warranto action, in which the members of this Court together with the members of the Disciplinary Board were named as defendants. The sole purpose of the suit was to challenge the authority of this Court to create the Disciplinary Board pursuant to Rule 42. This Rule was issued on December 18, 1975, with an accompanying opinion in the cause styled Petition of Tennessee Bar Association, 532 S.W.2d 224 (Tenn.1975).

For the reasons stated in the opinions of this Court issued in the case of Petition of Tennessee Bar Association, Tenn., 539 S.W.2d 805, released simultaneously herewith, we hold that any challenge to the constitutional authority of this Court to promulgate the Rule and to create the Disciplinary Board must be made in a proper petition filed in this Court, and may not be maintained in the trial courts of the state, in an action quo warranto or otherwise.

Of course, if the Disciplinary Board or any of its members or employees are guilty of any misconduct in office, they are subject to suit in the courts in the regular way. The present action, however, merely purports to question the authority of this Court to promulgate Rule 42 and to create the Board pursuant thereto.

Accordingly, for the reasons stated in the various opinions filed in the Barger case, supra, the petitions for certiorari and supersedeas are granted. All further proceedings in the captioned matter in the Chancery Court at Nashville will be and they hereby are enjoined, and the cause will be and it hereby is transferred to this Court and consolidated with In re: Petition of the Tennessee Bar Association, which originated and is still pending here.

Any of the relators or their counsel desiring to challenge the authority of this Court to issue the Rule or to create the Disciplinary Board may do so by proper petition filed in this Court in said cause, and may, of course, have a right of appeal to the Supreme Court of the United States if they deem any issue appropriate for review there is presented.

COOPER, C. J., and FONES, BROCK and HENRY, JJ., concur.