author: O’QUINN, Justice.

text:
    George Robert LEAK, Appellant, v. Annemarie LEAK, Appellee.
    No. 12691.
    Court of Civil Appeals of Texas, Austin.
    April 12, 1978.
    Rehearing Denied May 3, 1978.
    John R. Duren, Duren & Thompson, Copperas Cove, for appellant.
    Joe Barron, Duncan, Bragg, Barron & Phillips, Killeen, for appellee.
   O’QUINN, Justice.

George Robert Leak appeals from action of the district court denying his motion for judgment on petition for equitable bill of review of a prior divorce judgment and division of property.

Appellant and Annemarie Leak were divorced by judgment entered in May of 1973. Subsequently Annemarie Leak, who had been served by publication while living in Germany, moved to set aside the judgment under Rule 329, Texas Rules of Civil Procedure. After the parties entered into a revised property settlement, the trial court in September of 1975 entered judgment setting aside the prior judgment only as to division of property and incorporated by reference the revised property settlement, upon which the parties had agreed, and ordered the property divided in accordance with the settlement.

About eighteen months later Appellant Leak filed his petition for bill of review, in March of 1977, based mainly on the ground that the property settlement, to which he had been a party in 1975, was void. After a hearing the trial court denied appellant’s petition for bill of review. We will affirm the action of the trial court.

Appellant brings four points of error. Under the first three points appellant attacks validity of the judgment of 1975 on the basis of procedural errors claimed under Rule 329, Texas Rules of Civil Procedure. The fourth point essentially is a prayer for equity, construed to be an assertion that the 1975 judgment was entered, not because of appellant’s negligence, but due to negligence of Leak’s attorney at that time in exerting undue pressure on Leak.

In seeking a bill of review, if the petition is to succeed, the litigant must allege under oath and prove “(1) a meritorious defense ... (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own.” Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950); 4 McDonald, Texas Civil Practice, sec. 18.27.1 (1971).

At the outset we find that appellant failed to meet the essential requirements under petition for bill of review, which we now consider, rendering it unnecessary to review in extended detail appellant’s points of error attacking validity of the 1975 judgment.

It is undisputed that appellant was present at all material times in the proceedings in 1975 and was party to the revised property settlement, which the trial court found just and equitable, and incorporated it in the final judgment. In his petition for bill of review Leak alleged that he signed the property settlement agreement under duress of his attorney at the time who emphasized that the earlier divorce in 1973 was voidable.

McDonald points out that implicit in each ground of relief “. . .is the requirement that the petitioner show that he exercised due diligence to prevent the rendition of the judgment under attack. An injustice in the former decree is not enough, without more: the party’s failure to present his claim or defense must not have resulted from neglect of himself, his agent, or his counsel.” (Emphasis added) 4 McDonald, Texas Civil Practice, sec. 18.27.5. Appellant insists that it was not due to any fault or negligence of his own, but that of his attorney, which prevented presentation of his claim in the property settlement. This position avails appellant nothing. The Supreme Court in 1968 held that as long as the relationship of attorney and client endures, with the corresponding effect of principal and agent, the acts of one as a general rule must necessarily bind the other. Gracey v. West, 422 S.W.2d 913, 916 (Tex.Sup.1968); Dow Chemical Company v. Benton, 163 Tex. 477, 357 S.W.2d 565, 567-8 (1962).

Leak’s contention that the attorney representing him in 1975 prevented presentation of appellant’s claim at that time gives emphasis to Leak’s failure to plead and prove in this proceeding that he was prevented in 1975 from making his claim by any fraud, accident or wrongful act of the opposite party. This Court in 1962 held, where the record showed failure to answer was wholly due to the party’s own employee, it conclusively appeared that failure to answer was not due to fraud, accident or wrongful act of the opposite party. Rankin v. Clemons, 358 S.W.2d 701, 704 (Tex.Civ.App. Austin 1962, writ ref’d).

The need for requirement of diligence in the prior action, on the part of the petitioner later seeking bill of review, finds emphasis and explanation in Hacker v. Hacker, 110 S.W.2d 923, 924 (Tex.Civ.App. Galveston 1937, no writ). The fundamental grounds upon which the equity to demand another trial rest are (1) that complainant has a meritorious claim and (2) “. that he has been compelled to suffer an adverse judgment by circumstances wholly beyond his control . . . .” (Emphasis added).

Returning to appellant’s three initial points of error, attacking validity of the 1975 judgment on procedural grounds, we examine and dispose of them briefly. Under the rules applicable to motion for new trial after judgment in cases where service has been by publication, trial courts are permitted wide discretion to be exercised with liberality in allowing the defendant his day in court. The points of error brought by appellant in this appeal are overruled.

See 4 McDonald, Texas Civil Practice, secs. 18.23.1, 18.23.2, and authorities cited.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: VANCE, Judge:

license: Public Domain

text:
    UPPER ELKHORN COAL CO., etc., Appellant, v. Ruby Lee THORNBERRY et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 16, 1977.
    Rehearing Denied Feb. 3, 1978.
    Discretionary Review Denied May 16, 1978.
    William G. Francis, Francis, Kazee & Francis, Prestonsburg, for appellant.
    Cordell H. Martin, Hindman, James Bates, Dry Creek, Ronald W. May, Pike-ville, John V. Porter, Jr., Paintsville, Thomas A. Ainley, Uninsured Employers’ Fund, Asst. Atty. Gen., Frankfort, for appellees.
    Before MARTIN, C. J., and VANCE and WHITE, JJ.
   VANCE, Judge:

The appellant, Upper Elkhorn Coal Co., operates a coal tipple. Liability was imposed upon it for the payment of compensation benefits for the death of Ala-mander Thornberry, an employee of Caney Elkhorn Coal Co., an uninsured employer, upon the theory that appellant was a contractor under KRS 342.610(2). This statute provides, in substance, that one who contracts with another to have work performed consisting of the removal of minerals shall be deemed a contractor. The question in this case is whether appellant contracted with Caney Elkhorn Coal Co. to have it remove minerals for appellant. The Board determined that it did and the decision was affirmed by the trial court. We affirm.

Virnes Isaacs, doing business as Lane Branch Coal Co., leased coal and mineral rights to Marshall Clubb and William Johnson who purported to act as partners but who were also officers of appellant.

Clubb, the secretary-treasurer of appellant, entered into an oral agreement with Caney Elkhorn Coal Co. whereby Caney Elkhorn would mine the coal from the leased property and deliver it to appellant’s tipple for twenty dollars ($20.00) per ton.

Although the lease from Isaacs was purportedly to individuals acting as partners, it appears that their purpose in taking the lease was to secure production for appellant.

The record does not show any benefit to be derived from this arrangement by Clubb and Johnson as partners. The sole benefit fell to the appellant which obtained a supply of coal for twenty dollars ($20.00) per ton. The testimony of Clubb clearly demonstrates that he was acting for the appellant in all phases of this transaction and appellant accepted the benefits of his actions. We think the evidence supports the Board’s determination that it was the appellant which controlled the leased property-

Likewise we find evidentiary support for the determination that appellant contracted with Caney Elkhorn to remove the coal from the lease for it. The fact that the rate of pay was twenty dollars ($20.00) per ton and that appellant, not Caney Elkhorn, benefitted or lost by increases and decreases in the market price of coal brings this case within the rationale of Elkhorn-Hazard Coal Land Corporation v. Taylor, Ky., 539 S.W.2d 101 (1976) which we consider dispos-itive of this case.

The judgment is affirmed.

All concur.


author: COOPER, Judge.

text:
    William Allen BROWN, Andrew Benningfield and Frances Marie Drumm, as widow of Roger Edward Drumm, Deceased, Appellants, v. Donald OWSLEY and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Jan. 6, 1978.
    Discretionary Review Denied May 16, 1978.
    Larry D. Raikes, Hodgenville, for appellants.
    Armer H. Mahan, Davis & Mahan, Louisville, for appellee.
    Before COOPER, HAYES and HOWER-TON, JJ.
   COOPER, Judge.

This case is on appeal from a judgment of the Hardin Circuit Court which affirmed the Workmen’s Compensation Board which denied workmen’s compensation benefits to the appellants.

On September 21, 1973, the appellants, William Allen Brown and Andrew Benning-field, were injured in a car accident in the City of Elizabethtown, Hardin County, Kentucky. In the same accident, Roger Edward Drumm was killed. He and the other two injured appellants were passengers in a vehicle driven by Johnny Lawson. All three were employees of the appellee, Owsley, who was a masonry contractor. At the time of the accident, they were on their way home from a work site near Elizabeth-town to their central meeting point in Hod-genville, Kentucky.

The contractor, Owsley, the appellee in this case, would change job sites very often. He would complete one job and move on to the next job which might be in a different county. When he was ready to move from one job site to the next, he would inform his employees where the job was going to be and how to get there. The employees would commute every day from their central point to the job site. The appellants would congregate each morning before work at the appellant, Drumm’s home in Hodgenville and the driver of the automobile in the car accident, Lawson, would then meet them at Drumm’s home where they would then proceed to the particular job in either Drumm’s car or Lawson’s car. At the end of the work day all four would use the same procedure in getting home.

The work day of the appellants started at 8:00 a. m. and ended at 4:30 p. m. with an hourly wage rate being paid on a forty (40) hour week. The appellants had thirty (30) minutes off each day for lunch.

The issue before this Court is:

WHETHER THE INJURIES TO THE APPELLANTS, BROWN AND BEN-NINGFIELD, AND THE DEATH OF THE DECEDENT, DRUMM, AS A RESULT OF THE ACCIDENT OF SEPTEMBER 21, 1973, AROSE OUT OF AND WERE IN THE COURSE OF THEIR EMPLOYMENT, AND THEREFORE COMPENSABLE UNDER THE KENTUCKY WORKMEN’S COMPENSATION ACT.

We believe that the lower court did not err in affirming the Workmen’s Compensation Board in its denial of appellants’ claims. The appellants have well briefed their position and argued persuasively in attempting to bring the present fact situation within the coverage of the Workmen’s Compensation Act. In doing so, appellants have cited Kaycee Coal Co. v. Short, Ky., 450 S.W.2d 262 (1970) and Corken v. Corken’s Steel Products, Inc., Ky., 385 S.W.2d 949 (1965). These two cases expound the street risk doctrine and the positional risk doctrine respectively.

However, after a review of the facts, we believe that those cases and the theories they propound are inapplicable in this case. Since those cases, the court has decided Spurgeon v. Blue Diamond Coal Co., Ky., 469 S.W.2d 550 (1971); Lycoming Shoe Co. v. Woods, Ky., 472 S.W.2d 257 (1971); and Baskin v. Community Towel Service, Ky., 466 S.W.2d 456 (1971); which, as in the instant case, involve employees being injured either while traveling for their employer or while traveling from home to the place of their employment. In these cases, the court has held that the critical issue is whether the employee was injured while performing some service for his employer. The court held that travel from home to the place of employment is not performing some service for the employer, and therefore is not arising out of and in the course of employment. Under the present fact situation there is no evidence that the employees were performing any service for their employer.

Therefore, we are compelled to hold in the present case that where the appellants traveled from home to a central meeting point each morning and then to a fixed place of employment, although it may change from day to day or week to week, and where they worked a fixed schedule from 8:00 a. m. until 4:30 p. m., that injuries or death incurred while in transit from home to work do not come within the purview of the Workmen’s Compensation Act and it cannot be said that their injuries and death arose out of or in the course of their employment.

We affirm.

All concur.


author: MARTIN, Chief Judge.

text:
    The ELECTRIC PLANT BOARD OF the CITY OF HICKMAN, Kentucky, Appellant, v. HICKMAN-FULTON COUNTIES RURAL ELECTRIC COOPERATIVE CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    March 31, 1978.

      Hal Warren, Warren & Warren, Fulton, for appellant.
    Stephen R. Schmidt, Brown, Todd & Hey-burn, Louisville, James H. Amberg, Hickman, for appellee.
    Before MARTIN, C. J., and HOWER-TON, and WINTERSHEIMER, JJ.
   MARTIN, Chief Judge.

This is an appeal from an order of the Fulton Circuit Court overruling appellant’s motion pursuant to CR 60.02 to set aside the court’s May 3, 1977, judgment. The issue presented by this appeal is whether the trial court erred in refusing to either set aside the judgment or to instruct the circuit court clerk to notify the parties of the entry of judgment pursuant to CR 77.-04(2).

On April 12, 1977, the circuit judge informed the parties by letter that he had reached a decision in their case. He left it up to the attorneys as to who would draft a judgment. As counsel for the appellant, James H. Warren, was to be out of the country until April 22, 1977, his law partner, Hal Warren, wrote to appellee’s attorney, James Amberg, and requested that Mr. Amberg draw up the judgment and submit it to James H. Warren for his approval upon his return to the United States. However, it appears that Mr. Amberg submitted the judgment to the circuit judge and secured his signature on April 30, 1977, without first receiving the approval of Mr. Warren. The judgment was then entered on May 3, 1977, but as notice of the entry of the judgment was not sent, neither appellant nor its counsel learned of the judgment until June 9,1977. At that time, Hal Warren asked for and received an attested copy of the judgment and notified James H. Warren of the entry of the judgment. On this same date, the Fulton Circuit Court Clerk’s Office made a notation on the docket sheet that James Warren had received a copy of the judgment. On June 15, 1977, appellant filed its motion to set aside the judgment. The court heard the motion on June 24,1977, and entered its order overruling the motion on August 29, 1977.

The appellant argues that under CR 77.-04(2) the date of the notation of service of notice of entry is the date to be used in computing the time for appeal pursuant to CR 73.02(1). It contends that since the circuit court clerk never notified the appellant of the entry of judgment, the time for taking the appeal has not yet begun to run, and therefore, the trial court should have either set aside the May 3, 1977, judgment and reentered it so as to enable the appellant to take an appeal, or it should have instructed the circuit clerk to notify the appellant of the entry of the May 3, 1977, judgment. In the alternative, the appellant claims that the actions of appellee’s attorney in unilaterally obtaining the signature of the circuit judge, and in failing to notify opposing counsel of the entry of judgment, as is the custom in Fulton Circuit Court, constitute grounds “of an extraordinary nature justifying relief” pursuant to CR 60.-02(6).

It is the opinion of this Court that the appellant chose the wrong remedy in moving to set aside the judgment. Instead, the appellant should have filed a notice of appeal to the May 3, 1977, judgment within twenty (20) days of the date the Fulton Circuit Court Clerk’s Office noted on the docket that counsel for the appellant had received an attested copy of the judgment. Because it chose instead to move to set aside the judgment, we believe the appellant allowed its time to file a notice of appeal to expire, and thus lost its right to appeal the May 3, 1977, judgment.

CR 77.04(2) provides that the time for taking an appeal does not begin to run until the date of the clerk’s notation on the docket of the service of notice of entry of judgment. Here, the time began to run on June 9,1977, when the Fulton Circuit Court Clerk’s Office made a notation on the docket that counsel for appellant had been given an attested copy of the judgment. The fact that the clerk’s office did not serve a formal notice of entry on the appellant, in accordance with CR 77.04(1), did not suspend the running of time for filing a notice of appeal because, as CR 77.04(4) makes clear, the failure to serve such a notice or the failure of a party to receive the notice does not affect the time for taking an appeal. As Commissioner Clay has said: “The notation is the significant act, and as provided in Section (4) of this Rule . . actual service of the notice is not controlling.” 7 W. Clay, Kentucky Practice, CR 77.04, Comment 5 (3rd ed. 1974). However, even if actual notice were required, we believe that since the attested copy of the judgment given to Hal Warren and delivered to James H. Warren reflected the entry date of May 3, 1977, the appellant was given sufficient notice that the judgment had been entered.

The appellant’s alternative argument that the actions of appellee’s counsel are grounds for relief under CR 60.02(6) is unavailing for two reasons. First of all, as demonstrated in our preceding discussion, a motion under CR 60.02 is not the proper remedy in this situation. It appears that appellant’s primary concern is that the actions of Mr. Amberg deprived it of the right of appeal. However, as the time for taking the appeal did not begin to run until the day the appellant learned of the entry of judgment, appellant still had the full twenty (20) days to file a notice of appeal. Thus, there was no need to move the court to set aside the judgment in order to preserve the right of appeal. Secondly, while Mr. Amberg’s actions appear contrary to the custom of the Fulton Circuit Court, and are not condoned by this Court, we believe that since the appellant’s interests were amply protected by the provisions of CR 77.04(2), Mr. Amberg’s actions do not constitute grounds for relief under CR 60.02(6).

The judgment is affirmed.


author: HOWERTON, Judge.

text:
    Paul EFFINGER, Rishel Bowen, James Durham, Tinsley Roman, and William Adams, Appellants, v. FERN CREEK VOLUNTEER FIRE DEPARTMENT, INC., Larry Broyles, Tony Broyles, Ronnie Brugh, Harold Carnes, Robbie Chambers, Steve Driskell, Don Espy, Dave Fisher, Cliff Fowler, John Franklin, Tim Krivda, Arnold Kuehenbrod, Andy Mehaffey, John Miller, Riery Shaffer, Lloyd Straub, Jerry Swan, Charlie Thompson, Art Vogedes, Glen Vogedes, Mark Vogedes, Tom Widman, Rodney Zeller, Tyrone Young, John Johnson, Robert Storrie, John Magnus, Gary Helm, Mrs. Robert F. Chamgers, Mrs. Ross Riddle, Mrs. Lawrence Speckman, Harley Roman, John E. Parrish, Joseph T. Riordan, Ricky Devine, George J. Vogel, Sr., Gary Zeller, Craig Newman, Roger Newman, Matthew F. Plahuta, James S. Bryan, Jr., Jerry Sasser, Carroll E. Brotzge, Charles M. Schmidt, David Montgomery, Jesse Street, Appellees.
    Court of Appeals of Kentucky.
    April 7, 1978.

      Richard D. Remmers, Handmaker, Weber & Meyer, Louisville, for appellants.
    Edwin A. Schroering, Jr., Louisville, for appellees.
    Before HOWERTON, LESTER and WHITE, JJ.
   HOWERTON, Judge.

This is an appeal from a declaratory judgment in which the trial court declared that the contract between the Fern Creek Fire Department, Inc., (hereinafter referred to as Department) and the Fern Creek Fire Protection District (hereinafter referred to as District) was valid. One provision of the contract allowing veto power by the directors of the Department over any termination of the contract by the trustees of the District was declared invalid, but this section of the contract is not an issue on this appeal.

The stipulated facts provide that a contract was entered into between the Department and the District, evidenced by ByLaws adopted by both parties on May 14, 1973, under which the District delegated to the Department more or less complete control of the operation of the Department.

Appellants contend that the entire contract is invalid ab initio. Specifically, they argue that KRS 75.010 through .260 (1) prohibits the District from contracting for services with a fire department which is located within the District; and (2) the contract is an illegal delegation of statutory authority.

First, appellants admit that KRS 75.040 allows the District to contract for fire protection services; but they argue that this contracting is for limited purposes in special situations. They contend that KRS 75.050 limits the authority of the District to contract for fire protection services to areas outside its boundaries, or areas within its boundaries where it cannot provide adequate fire protection. Appellants’ interpretation of KRS 75.040 through .050 is not a reasonable construction of the statute.

KRS 75.040(1) provides in part:

Upon the creation of a fire protection district . . . the trustees of such district are hereby authorized to establish and operate a fire department . or to make contracts for fire protection for such districts as provided in KRS 75.050.

KRS 75.050 provides that the fire protection district may enter into a contract with “any . . . volunteer fire department . for the furnishing or [the] receiving of fire protection services for all property within the confines of the area included in and covered by the contract . . . .” Therefore, we believe the contract between the District and the Department was compatible with the statutory authority granted in KRS 75.040 through .050. There is no language in either statute that limits fire service contracts to departments or units outside the district’s territory, or for services in areas within the territory which can be more readily served by neighboring departments, or for reciprocal fire protection agreements among several departments. However, it appears that a district might legally contract with a neighboring district or department for any of the foregoing reasons, under the authority granted by KRS 75.040 through .050.

Secondly, appellants contend that the contract is an illegal delegation of statutory authority. The authorities that they argue are illegally delegated are the right of the Department to choose its own fire chief, and the Department’s submission of a budget to be approved by the District.

KRS 75.120(2) provides that “the board [District] may appoint a chief of the fire departments and all subordinates . . (Brackets added) The only reasonable meaning that can be given to this section is that the District may (i. e., is permitted to) select a fire chief, but it need not retain or exercise this power, and it may legally delegate such power or right to any volunteer fire unit with which it contracts for its fire protection.

KRS 75.040(1) authorizes the District to levy a tax for the purpose of fire protection. Appellants contend that the contractual terms providing for District approval of a budget submitted by the Department is an illegal delegation of the District’s taxing power. The ordinary meaning of the phrase, “approval of the budget”, in these circumstances is that the District may exercise reasonable discretion in determining whether the budget is suitable. Having contracted with the Department for fire protection, it is common sense that the District would want the Department to submit a budget for its approval. It cannot be said that the taxing power of the District has been delegated by this contract.

If the Board of Trustees for the District wishes, it may terminate the present contract with a department at any time, provided it does so by vote of the Board of Trustees in accordance with the By-Laws.

We agree with the trial court that the contract between the Department and the District, voluntarily entered into for the benefit of the people of Fern Creek, should be supported and upheld unless unlawful. The law, having given the right to the District to contract for fire protection services, should not be so narrowly construed as to make it impractical to contract. The judgment of the trial court is affirmed.

All concur.


text:
    CITY OF LOUISVILLE, Appellant, v. MELTON FOOD MARTS, INC., Appellee.
    Court of Appeals of Kentucky.
    April 7, 1978.
    Burt J. Deutsch, City of Louisville, Director of Law, Paul V. Guagliardo, Asst. Director of Law, Louisville, for appellant.
    G. Murray Turner, Mulhall, Major & Turner, Louisville, for appellee.
    Before HOWERTON, LESTER and WHITE, JJ.
   HOWERTON, Judge.

This is an appeal from a declaratory judgment determining that appellee was not in violation of KRS 363.770 for selling whole barbecued chicken at a unit price rather than by weight. It hás been said that the meat of the issue on this appeal is chicken.

In order to insure that meat, poultry and seafood are properly weighed and measured, and that Kentucky consumers of such products are adequately protected, the Kentucky General Assembly enacted what is now KRS 363.770, which provides in part:

Except for immediate consumption on the premises where sold, or as one of several elements comprising a ready-to-eat meat sold as a unit for consumption elsewhere than on the premises where sold, all meat, meat products, poultry (whole or parts), and all seafood except shellfish, offered or exposed for sale or sold as food shall be offered or exposed for sale and sold by weight. (Emphasis added.)

The Kentucky Administrative Regulations pertaining to weights and measures have provided in 302 KAR 76:005(5):

Meat, Poultry and Seafood.
(1) Shall be sold by weight, except the following, which may be sold by weight, measure, or count:
(b) Items sold for consumption on the premises.
(c) Items sold as one of several elements comprising a ready-to-eat meal sold as a unit for consumption elsewhere than on the premises where sold. (Emphasis added.)

The consumer advocates in the Louisville Division of Weights and Measures have since been scurrying about the city like Chicken .Little, thinking the sky was falling because appellee was selling whole barbecued chicken by the unit rather than by weight. Appellee was charged with the violation of KRS 363.770, and brought an action in the Jefferson Circuit Court for a declaratory judgment to determine his legal rights and duties.

The parties stipulated the facts and submitted three questions to the circuit court for determination. They were:

A. Does the practice of selling prepared and cooked chicken in the delicatessen section of appellee’s food markets at a unit price rather than by weight constitute a violation of KRS 363.770?
B. Does the practice of certain restaurants or “fast food” establishments of selling prepared and cooked chicken which in fact is sometimes taken away from the premises of the business for consumption elsewhere constitute a violation of KRS 363.770?
C. Does the enforcement of KRS 363.-770 against appellee’s sale of poultry, and not against certain practices of “fast food” establishments constitute selective enforcement by the City of Louisville?

Judge Charles M. Leibson made an important and reasonable distinction between unprepared food which is sold by weight to protect consumers so they know what they are getting, and prepared foods which are bought as much for the way they are cooked, as for their quantity. He found in favor of the appellee in all respects, and appellant raises the same questions on this appeal.

Appellant attempts to argue that KRS 363.770 should be read as if the exception was for a ready-to-eat meal rather than a ready-to-eat meat. As will be noted above, the administrative regulation does read “meal”. The trial judge held that appellee was entitled to have the statute considered as written, and that the Director of Weights and Measures had no right to prepare a regulation in conflict with the statute. Clearly, a whole barbecued chicken would be a “ready-to-eat meat,” but we would nevertheless have to decide in favor of the appellee on this appeal, even if we should conclude that the legislature intended for the statute to mean “meal”. We therefore need not consider all of the questions involved in statutory interpretation in this opinion.

There is no substantial difference between the practices carried on by the appel-lee, and the practices carried on by “fast food” establishments. Appellant readily admits that the “fast food” establishments are exempt from selling their meat products by weight. Many food markets have a delicatessen section in their stores, and appellant admitted, on oral argument, that if appellee had one table and one chair where the food could be consumed on the premises, or if appellee served a roll or napkin along with the barbecued chicken, the exemption would apply. We do not desire to get into silly distinctions without any real differences, but it is a fact that many individuals who purchase chicken at an establishment such as Kentucky Fried Chicken, purchase only chicken and they do not consume it on the premises. Furthermore, the barbecued chicken prepared by appellee is a ready-to-eat meat, and it could certainly be considered a ready-to-eat meal. It is not necessary that the consumer have a salad and vegetable with the barbecued chicken in order to have a “meal”.

Such establishments as Kentucky Fried Chicken, Burger Queen, Long John Silvers, Krogers, A&P, and Winn-Dixie, all sell chicken by the piece, and for consumption away from the premises, and the products are sold as much for their distinctive flavor, seasoning and preparation, as they are for the actual amount involved. If appellant’s argument is followed completely, the “fast food” and other delicatessen outlets would not be in compliance with the statute any time a customer purchased nothing but chicken to be taken from the premises for consumption.

Because we have concluded that appellee is not in violation of the real intent of the statute, we need not decide the question of selective enforcement against the appellee by the appellant.

Appellant also argues that the circuit court erred in its interpretation and construction of KRS 363.770 by failing to give effect to the intent of the legislature. We would agree with appellant that it is the duty of the court to interpret the law, not to enact legislation. Chapman v. Chapman, Ky., 498 S.W.2d 134 (1973). We fail to see the significance of appellant’s argument, however, because we conclude that both the trial court and this court have done nothing but attempt to interpret the legislation. There can be no doubt that the interpretation of a statute is a proper judicial function. Masonic Widows and Orphans Home and Infirmary v. City of Louisville, 309 Ky. 532, 217 S.W.2d 815 (1949). Merely because the circuit court’s interpretation differs from that of appellant does not mean that it has “substituted” its opinion for that of the legislature. If any substituting of opinion has occurred, it has been on the part of the appellant which has come up with a rather warped concept of how the statute should be applied.

Judge Leibson concluded in his Memorandum Opinion that the intention of KRS 363.770 was to require meat, poultry and seafood sold to be taken home and prepared to be sold only by weight. He added, “Where the product is distinctive at least as much for the manner in which it is prepared, as for the amount involved, it would be arbitrary and capricious to regulate its sale by weight only.” We agree with this logic and conclude that Melton Food Marts, Inc., has not violated the statute by selling its whole barbecued chicken at a unit price.

The consumer has been protected, and the scales of justice tip in favor of the appellee. The judgment of the trial court is affirmed.

All concur.


author: BARDGETT, Judge.

text:
    John Paul HARDNETT, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 60004.
    Supreme Court of Missouri, En Banc.
    April 10, 1978.
    Rehearing Denied April 28, 1978.
    Christelle Adleman-Adler, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
   BARDGETT, Judge.

Appellant John Paul Hardnett appealed to the Missouri Court of Appeals, St. Louis district, from the judgment of the circuit court of February 13,1976, which summary denied, without a hearing, his Rule 27.26 motion filed December 19,1975. The relief appellant seeks is a correction or modification of his sentence so as to conform to the statutory provision of see. 559.190, RSMo 1969. The court of appeals affirmed and denied appellant’s motion for rehearing or transfer. Thereafter, this court sustained appellant’s motion for transfer.

Appellant was sentenced to six years’ imprisonment on January 24, 1975, pursuant to his plea of guilty entered December 11, 1974. According to the briefs of both parties and the transcript of the plea proceedings, appellant had been charged with “Assault with Intent to Maim with Malice”. The record on appeal does not contain copies of the indictment or the judgment. The court requested that they be supplied and they are now here. The first page (cover sheet) of the indictment states: “Charge: ASSAULT WITH INTENT TO MAIM WITH MALICE”, and then lists the witnesses. The reverse side which contains the body of the indictment reads, eliminating certain formal phrases, that Hardnett “. . . feloniously, willfully, on purpose, and of his malice aforethought did make an assault upon MILDRED ANDERSON with a certain weapon, to-wit: a knife, a means likely to produce death or great bodily harm, and did then and there cut, stab and wound the said MILDRED ANDERSON with the intent then and there to maim the said MILDRED ANDERSON: . .

The copy of the judgment shows on the cover sheet side the following, “Pleaded Guilty To: ASSAULT WITH INTENT TO MAIM WITH MALICE”. The reverse side containing the sentence and judgment, in pertinent part, reads as follows, “Now, at this day comes the Assistant Circuit Attorney for the State, and also comes the defendant herein, in person in the custody of the Sheriff of this City, and in the presence of Karl Lang, Attorney and Counsel in open Court, whereupon said defendant is informed by the Court that he has heretofore entered plea of guilty of the crime of ASSAULT WITH INTENT TO MAIM WITH MALICE, said plea being accepted by the Court and being now asked by the Court if he had any legal cause to show why judgment should not be pronounced against him according to law, and still failing to show such cause, it is therefore sentenced, ordered and adjudged by the Court, that the said defendant: JOHN PAUL HARDNETT

The sole contention made by appellant in this 27.26 motion was that his sentence was in excess of the maximum prescribed by law for the offense for which he was convicted.

Section 559.180, RSMo 1969, prescribes a punishment of not less than two years and, therefore, the maximum could be life imprisonment for the offense of assault with intent to maim, etc., with malice aforethought.

Section 559.190, RSMo 1969, provides that an assault with intent to maim, the punishment for which is not hereinbefore prescribed, shall be punished by imprisonment in the penitentiary not exceeding five years, or in the county jail not less than six months, etc.

The difference between sections 559.180 and 559.190 is the element of “malice aforethought”. Appellant contends he was neither charged with nor did he plead guilty to an assault with “malice aforethought” but that he did plead guilty to what was described by the trial court in the guilty plea proceedings and by the state in its brief as “assault with intent to maim with malice ” but not malice aforethought. Nowhere in the plea proceedings is the offense charged or to which appellant pled guilty identified as an assault “with malice aforethought”. Even in responding to the appellant’s point, the state makes no assertion that appellant was charged with a crime which, by the words of the information or indictment, described the mental element peculiar to sec. •559.180 as “malice aforethought”, although as noted supra, the words do appear in the body of the indictment but are not on the cover sheet side where the offense charged is identified. As stated, there is no reference to malice aforethought anywhere in the plea-of-guilty proceedings, nor is the concept or element of malice aforethought referred to by definitional terms or alluded to in any respect.

The state argues that “malice” and “malice aforethought” mean the same thing; that malice aforethought is just a redundant way of saying malice and that the terms are fully interchangeable, citing Cook v. State, 511 S.W.2d 877 (Mo.App.1974), where at 881 the court, quoting with approval from a trial court’s memorandum opinion, stated: “Although this classification of assault may be tidy and symmetrical, the differences between the classes are perhaps more apparent than real and no real difference may exist, for example, between an assault ‘with malice aforethought’ and an assault ‘with malice but not aforethought.’ Thus, in many decisions, our Supreme Court now uses the term ‘malice’ interchangeable with and rather than the traditional term ‘malice aforethought.’ See State v. Anderson, 375 S.W.2d 116, 122 (Mo.1964); State v. Williams, 323 S.W.2d 811 (Mo.1959).”

Cook had been tried and convicted by a jury which conviction was affirmed in State v. Cook, 463 S.W.2d 863 (Mo.1971). There were a number of instructions given to the jury by the court and among those instructions were definitions of malice aforethought. There was also submitted a lesser included offense of assault with intent to do great bodily harm under sec. 559.190, usually referred to by lawyers and judges as assault, etc., “without malice”. When all of the instructions were considered together, it becomes very clear that the jury had presented to it instructions covering both types of assault and it indicated by its verdict a finding of guilty of the one involving malice which, in context, obviously meant the crime of assault with malice aforethought.

The quotation set forth supra from Cook is entirely too broad to be at all acceptable and, in its broad sense, was not necessary to the decision reached there. The two terms — “malice” and “malice aforethought” — are not the same and are not interchangeable. The only difference between an assault offense under sec. 559.-180 and sec. 559.190 is that malice aforethought is a necessary element under 559.-180 but not under 559.190. The definition of malice aforethought is to do an act “intentionally and without just cause or excuse and after thinking about it beforehand for any length of time.” See MAI-CR 6.22. In State v. Mathis, 427 S.W.2d 450 (Mo.1968), the court said at 453-454:

“There has been some confusion in the language used to describe the offenses defined by Sections 559.180 and 559.190. The first section, applied to the facts of this case, defines an offense of felonious assault with malice aforethought with intent to maim, that is, to do great bodily harm. An essential element is malice aforethought and the word ‘aforethought’ as here used means malice with premeditation. State v. Young, 314 Mo. 612, 286 S.W. 29, 34. Malice alone is not sufficient. See State v. Venable, Mo., 177 S.W. 308, where an instruction defining ‘malice aforethought’ as ‘the intentional doing of a wrongful act without just cause or excuse’ (a frequent definition of ‘malice,’ see State v. Finnell, Mo., 280 S.W.2d 110, 113; State v. Ayers, Mo., 305 S.W.2d 484, 486) was held to be erroneous because ‘malice aforethought’ means ‘malice with premeditation; that is, that the unlawful act intentionally done was determined upon before it was executed.’

“Section 559.190 provides, when applied to the facts of this case, that every person who shall be convicted of an assault with intent to do great bodily harm ‘the punishment for which assault is not hereinbefore prescribed,’ referring to Section 559.180, shall be punished in the manner provided. Therefore, an assault with malice, but not with malice aforethought, which is committed with the required intent would be an assault within the definition of Section 559.-190, and would be a lesser included offense of the assault defined by Section 559.180.”

The memorandum opinion and decision of the trial court in the instant case is as follows:

“On December 19th, 1975, defendant-movant filed his second motion under Supreme Court Rule 27.26. His previous motion was summarily overruled.

“The only grounds contained in defendant-movant’s second motion under Supreme Court Rule 27.26 is that the sentence imposed upon him (six years) was contrary to the statute under which he was convicted. The Court file shows that this defendant-movant by Grand Jury Indictment was charged with the crime of Assault With Intent to Maim With Malice. On December 11, 1974, defendant pleaded guilty as charged and a pre-sentence investigation was ordered. On January 24, 1975, he appeared in court and was formally sentenced; probation was denied. Defendant was previously served with a written copy of his guilty plea together with the opinion overruling his prior motion under this Supreme Court Rule. Defendant-movant now contends that his indictment was under Missouri Statutes 559.190,1969 which is the statute that deals with Assault Without Malice. In this case this defendant-movant clearly pleaded guilty to the crime of Assault With Intent to Maim With Malice which is covered by Section 559.180 in which the maximum range of punishment is life imprisonment.

“Because of the above, no evidentiary hearing is necessary. It is not even necessary for this Court to appoint an attorney to consider an appeal of the Court’s ruling. Because this defendant-movant was sentenced under Section 559.180 and not 559.-190, as is his contention, his motion is summarily overruled.”

The court holds the crime appellant pled guilty to was an assault with intent to maim under sec. 559.190 and not an assault, etc., with malice aforethought under sec. 559.180. The foregoing finding, conclusion, and judgment of the circuit court are clearly erroneous. The plea of guilty to assault with intent to maim as defined in sec. 559.-190 has not been shown to be involuntary or otherwise invalid and, therefore, the judgment of conviction of assault with intent to maim is not vacated. The sentence, however, must be vacated because it is in excess of the maximum permitted for an assault offense under sec. 559.190 which is five years’ imprisonment. But the sentencing judge imposed sentence upon the mistaken belief the appellant was pleading guilty to an assault, etc., with malice aforethought under sec. 559.180 and, therefore, the sentence of six years must be vacated and the cause remanded for resentencing within the limits permitted by sec. 559.190.

As noted in the circuit court’s memorandum opinion, the allegation of appellant that his sentence is unlawful as being in excess of the statutory maximum for the crime to which appellant pleaded guilty was contained in appellant’s second 27.26 motion. It was not in his first 27.26 motion. The first 27.26 motion sought to set aside the plea of guilty and judgment on the grounds that, in short, (a) he was led to believe by his attorney that he would receive probation or a lesser sentence, (b) the court was prejudiced, and (c) the facts stated in the presentence investigation were incorrect. The first motion was overruled without a hearing and without appointing counsel. However, no appeal was taken from that judgment at all. After the second 27.26 was overruled with neither hearing nor counsel, an appeal was taken. However, this appeal was specifically taken from the judgment entered on the second motion — not the first. The court of appeals did not review the points briefed by counsel arising out of the first motion because no appeal had been taken from the first judgment. Counsel for appellant has been critical of the court of appeals for this action. The criticism was irrelevant to the motion for transfer and impertinent to the court of appeals. The court of appeals was correct in refusing to rule on the points arising out of the first, but not the second, 27.26 motion, as do we for the same reason — there was no appeal taken from the denial of the first motion.

The state contends the trial court properly denied the second Rule 27.26 motion because the point asserted — punishment in excess of the statute for the crime of which he was convicted — could have been raised in the first motion. This was the basis of the court of appeals disposition of the point and the appeal. The trial court, however, considered this point on the merits and denied it holding that appellant had been convicted of assault with intent to maim under sec. 559.180 with malice aforethought. We believe the court of appeals should have considered this point on its merits regardless of the failure to allege it in the earlier 27.26 motion because it deals with a sentence allegedly in excess of the statutory maximum.

If a person were convicted of manslaughter (maximum sentence ten years), sentenced to twenty years, filed one or more 27.26 motions attacking the voluntariness of his guilty plea, and then filed a 27.26 motion or a writ of habeas corpus seeking release or a correction in his sentence to one within the statutory authorization, it would not seem appropriate to reject the request simply because it was not asserted earlier. To do so would mean that a person would remain confined beyond the legal limit and this even though the defect was apparent on the face of the record, as here, in order to facilitate certain procedural aspects of motions under Rule 27.26.

Although the state does not argue or contend that the absence of “aforethought” from the charge as identified on the indictment and from the judgment was inadvertent or a mistake, it appears that it may have been carelessness or an oversight on the part of the circuit attorney as to the indictment, and the clerk and judge as to the judgment. In any event, it is important that the specific offense to which a person pleads guilty and of which he is found guilty be clearly and completely identified during the plea proceedings and in the judgment for it is that offense, not something else, that controls as to range of punishment. As stated supra, there is no offense as “assault with intent to maim with malice” as such. There is an offense of “assault with intent to maim” (sec. 559.-190) and “assault with intent to maim with malice aforethought” (sec. 559.180). The judgment does not show a conviction of assault with intent to maim with malice aforethought. It does show a conviction of assault with intent to maim and, therefore, it is that offense for which he should have been and will be sentenced.

The judgment of the circuit court is reversed and the cause is remanded with directions to immediately bring appellant before the court and to sentence appellant within the limits prescribed by sec. 559.190, RSMo 1969, and to then immediately notify the Department of Corrections of the sentence in order that appellant can be promptly discharged should it be that he is entitled thereto.

Reversed and remanded with directions.

Finch, J., dissents.

      . It is readily acknowledged that in conversations among lawyers and judges and in a number of opinions the offense of assault with intent, etc., with malice aforethought under sec. 559.180 is commonly referred to as assault, etc., “with malice”, and the assault with intent, etc., under sec. 559.190 is referred to as assault, etc., “without malice”.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Katherine Christine KURTZ, Appellant.
    No. 60214.
    Supreme Court of Missouri, En Banc.
    April 10, 1978.
    Rehearing Denied April 28, 1978.

      Clifford C. Schwartz, Jr., Clayton, for appellant. 11
    John D. Ashcroft, Atty. Gen., Frank J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM:

This case was transferred to this court by the Court of Appeals, St. Louis district, on motion of appellant after opinion. Rule 83.02. We adopt portions of the opinion of the Court of Appeals.

Katherine Christine Kurtz (appellant) was found guilty by a jury of the murder of her husband, Michael Kurtz, and she appealed from the judgment sentencing her to life imprisonment.

Appellant does not challenge the sufficiency of the evidence except to assert that “absent the confession and statement against interest,” the admissibility of which she challenges, there was not sufficient credible evidence upon which to base a finding of guilty. From the evidence that was admitted, including the challenged evidence, a jury reasonably could find that Michael Kurtz died as a result of arsenic poison administered to him by appellant with intent to kill.

Appellant’s first point is that the trial court erred in permitting the prosecutor to tell the jury in his opening statement that the evidence would show that immediately prior to the death of her husband, appellant was having “an affair” with a man named Allen. The objection was that such evidence would be “immaterial and irrelevant to any of the issues involved,” and “there is just no such evidence.”

The contention is totally without merit. The fact that immediately prior to the death of her husband appellant was having an “affair” with another man would tend to establish motive, which may be proved by the State, State v. Stapleton, 518 S.W.2d 292 (Mo.banc 1975). Appellant does not assert that it was error to admit evidence that she was having an “affair” with Allen. Moreover, she elected to testify and admitted on direct examination that she did have such “an affair.”

Dr. Robben was permitted to testify that after Michael Kurtz was admitted to the hospital his condition became critical, and he attempted to locate appellant at her home and also at the hospital but could not find her. Appellant assigns the admission of this testimony as error. She asserts that it was of an inflammatory nature which did not tend to prove or disprove any factual issue. This testimony tended to show appellant’s indifference and lack of concern for her husband whom she knew had been taken to the hospital in a serious condition. When one is accused of the murder of another, it is proper to show the feelings that existéd between them immediately prior to or at the time of the occurrence. State v. Johnson, 349 Mo. 910, 163 S.W.2d 780 (1942). The testimony was properly admitted.

Appellant next asserts prejudicial error resulted from the admission in evidence of “certain oral and written statements made by [her] while in custody.” She contends that the court erred in holding that the statements were “exceptions to the hearsay rule” and that they were “voluntarily made.”

We note here that neither in the point nor in argument is there any reference to specific statements alleged to be hearsay. Also, appellant asserts in argument that “the police officers involved failed to warn her of her constitutional rights.” She relies on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The record clearly shows that the “Miranda” warnings were read to her on two occasions, and that she signed a paper before any questioning occurred acknowledging that she understood her “rights” and “waived” them. Also, the “oral * * * statements” are nowhere identified in appellant’s brief. However, from the transcript we determine that appellant apparently refers to statements made by her to Officer Bright prior to making a written confession, and to a cellmate while she was confined.

Appellant was in custody at the time she made the statement to her cellmate, but she was not being interrogated by the police and the statement was not the product of in-custody interrogation. Instead, it was a voluntary statement to a fellow prisoner, and was not within the purview of Miranda v. Arizona, supra. State v. Mitchell, 491 S.W.2d 292 (Mo.banc 1973).

Without detailing the circumstances or the method or means allegedly employed, appellant argues that during the interrogation she was “under compelling influences to make said statements”; that the “interrogation practices” of the police created an environment which was likely to exert such pressure as “to disable her from making a free and rational choice”; that the “duration of the examination” was such as to render her “mentally and emotionally incapable of making any voluntary statement”; that she was “thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures”; that she was held in “lengthy interrogation and incommunicado incarceration” before she made the statements, and that she was “tricked and cajoled into a ‘waiver’ and the making of the statements.” These conclu-sionary statements are not borne out by the record. Nor are they, or the ultimate facts upon which they are supposedly based, asserted as grounds for the motion to suppress.

Appellant was given the “Miranda” warnings shortly after she arrived at the police station. She was not among strangers because she was previously acquainted with at least one of her interrogators, and not because of any previous criminal activity. The first period of interrogation lasted a little less than two hours, and there was a five-hour interim before she was again questioned. During that period she was in the office of the police station, not in the holdover cell as appellant asserts in her brief. She was offered food and water. When she went to the police station her aunt went with her, and her aunt stayed there about four hours and left only because of reasons personal to her. The police called a priest at appellant’s request, and he was permitted to talk to her in private. The private conversation occurred shortly after she signed the confession, but she had the opportunity to talk to him before she completed the confession and signed it. When she did confer in private with the priest she apparently made no complaints to him concerning the confession or her treatment. Appellant did not testify to any abuse, and she did not disagree with the officers as to the duration of the questioning. She testified that one of her children was in the hospital and her son was alone, and that she was “upset” and “wanted to get home to my little boy and get my little girl out of the hospital,” and that she “wanted to be left alone.” She stated that she “was very, very nervous and * * * told them [she] would sign anything just to be left alone,” and that the officer had also promised to take her to County Hospital to get a tranquilizer.

The trial court heard evidence in support of appellant’s motion to suppress. It found and determined that her oral statements and written confession to the police were made voluntarily and, therefore, were admissible in evidence. The evidence was sufficient to sustain the trial court’s finding and determination of voluntariness. State v. Alewine, 474 S.W.2d 848, 852[3] (Mo.1971); State v. Phillips, 563 S.W.2d 47 (No. 59379) (Mo.banc 1978). Moreover, essentially the same evidence was presented to the jury, and the jury was given an instruction submitting the issue of whether the oral statements and confession made were voluntary or not.

During the time appellant was being questioned by the police she indicated a desire to see Father Robert Osborne, a priest. The police immediately contacted him and he arrived at the police station while she was making an oral statement. After a short waiting period, he conferred in private with her. When Father Osborne was called as a witness, appellant objected to “any statements made to [him] for the reason that he is a Catholic priest who, apparently came and talked with [her] in the police station.”

Father Osborne testified that when he first saw appellant “in the room where they [the police] were talking to her,” she “appeared very subdued, I would say quiet”; she was not crying. He also testified that he heard no one raise his voice to her and saw no treatment of her that he considered to be harsh.

Appellant argues that the testimony of Father Osborne “was in violation of the sacred privilege between priest and parishioner,” and she cites and relies on the provisions of § 491.060, RSMo 1969. This section provides that “[a] minister of the gospel or priest of any denomination [shall be incompetent to testify] concerning a confession made to him in his professional character, in the course of discipline enjoined by the rules of practice of such denomination.”

It is clear that in testifying to the matters stated above the priest did not testify “concerning a confession made to him in his professional character, in the course of discipline enjoined by the rules of practice” of the Catholic church. See State v. Morgan, 196 Mo. 177, 95 S.W. 402 (1906). He testified only to what others did or did not do, and to those matters that were said or done by appellant in the presence of others. For a comparable situation but involving medical personnel, see State v. Burchett, 302 S.W.2d 9 (Mo.1957).

Father Osborne also testified that when he talked to appellant alone, she was quiet and able to talk, and that he had no problem communicating with her but “those kind of circumstances” made communications difficult. Appellant argues that the statutory rule of exclusion contained in § 491.060, supra, “would touch anything concerning the communication including [her] demeanor.” No authority is cited.

At common law there was no privilege as to a communication or confession to a clergyman. 97 C.J.S. Witness § 263. The tendency of the courts is toward a strict construction of statutes such as § 491.060, su pra. 81 Am.Jur.2d Witnesses § 284. The case with the nearest analogy is Buuck v. Kruckeberg, 121 Ind.App. 262, 95 N.E.2d 304, 306 (1950). It was there held that it was error to exclude the testimony of a minister regarding his opinion of the soundness of mind of a person when that opinion was based on his observations of the person while serving in the capacity of her clergyman. The court said: “These rulings [sustaining the objection to the opinion and striking out all previous testimony] were made upon the theory that the testimony of the witness concerned matters communicated to him as a clergyman as to which he is made an incompetent witness [by statute]. The statute, however, made the witness incompetent only as to ‘confessions and admissions’ made to him ‘in course of discipline enjoined by’ his church. It is apparent that the testimony of [the minister] concerned neither a confession nor an admission on the part of [the grantor] made to him in the course of any disciplinary action enjoined upon him by his church. He was clearly a competent witness and it was error to strike out his testimony and to refuse to receive his opinion based thereon as to [the grantor’s] soundness of mind.” See also Schaeffer’s Estate, 52 Dauph. Co. 45 (Pa.1941), where testimony of a minister was held to be proper when based on personal observations as distinguished from communications. The trial court did not err in overruling appellant’s objections to the testimony of Father Osborne.

Appellant’s next two points, considered together, are that the trial court erred when it permitted Albert Chasteen, a police officer investigating the case, to “testify as to his step by step police work and preparation which was immaterial and irrelevant to any of the issues in the case,” and to relate why he picked up a book on criminal investigation which he found in appellant’s home.

In argument appellant asserts that prejudicial error occurred when Officer Chasteen was permitted to testify that he sent word to another officer to pick up two persons by the name of Ramey and Allen. The record shows the officer testified that during the interrogation of -appellant, she stated that when her husband had eaten dinner one evening these two friends were present who also ate dinner. Officer Chasteen was then asked what he did with that information, and over appellant’s objection that it was hearsay and “investigative work,” he testified that he asked other police officers to locate those two persons.

Appellant also mentions in argument that Officer Chasteen was “permitted to testify that he had talked to other people about who should take a polygraph test and in what order they should take it.” Officer Chasteen did testify that he had such a conversation with Officer Bright, but he did not testify as to what was said.

It was not Officer Chasteen but Officer Crosswhite who testified that he seized a book entitled Fundamentals of Criminal Investigation in appellant’s house, and he stated that “the purpose [was to have] it examined for fingerprints.” There subsequently was testimony that appellant’s thumbprint was found on page 507 of the book.

We do not consider it necessary to determine whether, strictly speaking, these items of evidence were admissible. The testimony did tend to present a more complete picture of the step-by-step investigation made by the police, but when viewed separately it is difficult to find that the particular item of evidence was material or relevant to any issue in the case. However, assuming the testimony was objectionable for the asserted reasons, we are unable to find any prejudice to appellant. “Every error which might occur in the trial of a case does not necessarily require the granting of a mistrial,” State v. Smith, 431 S.W.2d 74, 82 (Mo.1968), and this would be equally true as to reversing a judgment on appeal. State v. Spica, 389 S.W.2d 35 (Mo.1965). Only prejudicial error requires the reversal of a judgment. State v. Gibson, 502 S.W.2d 310 (Mo.1973); State v. Phelps, 478 S.W.2d 304 (Mo.1972).

Appellant also contends that since the court gave an instruction on murder, first degree, it was required by note 6 of the Notes On Use of MAI-CR 6.02 (effective March 1,1975) to also give instructions on murder, second degree, and manslaughter; that the court erred to her prejudice in failing to give these instructions. Appellant acknowledges that the court’s failure to give these instructions was not assigned as error in her motion for new trial, but she asks that we consider the alleged error under the plain error rule (Rule 27.20(c)) and reverse the judgment. We have reviewed the case and do not deem that manifest injustice or miscarriage of justice resulted from the failure to give these instructions.

The judgment is affirmed.

All concur.


text:
    Henrietta NEMITOFF, d/b/a Parker & Parker Nursing Home, Appellant, v. Herbert R. DOMKE, Director, Missouri Division of Health, Respondent.
    No. 60025.
    Supreme Court of Missouri, En Banc.
    April 14, 1978.
    Rehearing Denied May 9, 1978.
    David H. Dunlap, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Louren R. Wood, Asst. Atty. Gen., Jefferson City, for respondent.
   BARDGETT, Judge.

Appeal from the denial of a license to operate a nursing home. The original direct appeal was to the court of appeals, Kansas City district, where the judgment was reversed and remanded. On application of respondent, director of the Missouri Division of Health, we transferred the appeal to this court to determine whether the director may deny a license as differentiated from “refuse to renew” or “revoke or suspend”, for failure to substantially comply with the requirements (rules and regulations) promulgated by the director, or whether the director is restricted in all cases of application for a license to the literal language of “minimum standards” as used in sec. 198.120, RSMo 1969.

Appellant contends the director is restricted to see. 198.120 with respect to the instant application. The director contends he can deny an application for license when he finds a substantial noncompliance with the “requirements” established under sec. 198.140 (Nursing Home Licensure Law). The director includes rules and regulations within the definition of requirements. The appellant excludes rules and regulations from her definition of “minimum standards”. In some respects the differences seem to be in part semantical but, nevertheless, require resolution. It also appears that appellant wants the court to treat her application for license as if it is an application for an original license for a new nursing home and to ignore the fact that this is not a new nursing home.

The facts are as follows: For sometime prior to August 1969, there was an operating nursing home in Independence named Kennedy Nursing Home. In August 1969, A. J. Parker leased the Kennedy Nursing Home and changed the name to Parker-Kennedy Nursing Home. In September 1969, Parker applied to the director of health for a license to operate as a practical nursing home, and on September 25,1969, a 90-day provisional license was issued to A. J. Parker. On December 23,1969, and February 26, 1970, inspectors of the division found substantial noncompliance with the division’s rules and regulations, but on March 6, 1970, a license was issued to A. J. Parker, owner and operator. On April 7, 1970, a hearing was held by the division to decide if Parker’s license should be revoked and qn July 31, 1970, it was revoked. No appeal was taken.

On October 9, 1970, A. J. Parker reapplied for a practical nursing home license for Parker-Kennedy Nursing Home and on November 10, 1970, filed a corrected application showing the correct name to be Parker & Parker Nursing Home. On September 1, 1971, A. J. Parker reapplied to the director for a license but the director refused to accept the application. On October 9, 1971, Henrietta Nemitoff requested an application for a practical nursing home license but was refused. On November 1, 1971, Nemitoff leased the Parker & Parker Nursing Home and in February 1972 submitted an application for a license to operate it as a practical nursing home. This application was refused on February 17, 1972, Then in September of 1972 Nemitoff applied again for a license but no action was ever taken on that application. On March 10, 1973, Nemitoff requested a hearing on her September 1972 application. No hearing was set but Nemitoff was invited to submit another application. On June 22, 1973, the division inspectors, Ruth Marshall and William Sisk, inspected the home and submitted their report. In response to an invitation by the director of health, Nemi-toff submitted another application on August 7, 1973, and after two continuances an administrative hearing was held on November 1,1973, before Jesse Bartlett, an administrator with the Missouri Division of Health, who was designated by Dr. Domke, the director, to conduct the hearing.

The evidence for the division of health at the hearing consisted of a stipulation of facts, most of which is set forth supra; the inspection report dated June 27, 1973, of division inspector William Sisk, Sanitarian I, of the June 22, 1973, inspection; and the inspection report dated June 26, 1973, of Ruth Marshall, R.N., Institutional Advisory Nurse, of'the inspection of June 22, 1973. The evidence for appellant Nemitoff consisted of the affidavit of A. J. Parker, who was at the time of the affidavit (October 31, 1973) administrator of the nursing home, and the personal testimony of Henrietta Nemitoff, R.N., who was operating the home under a lease purchase agreement and who was considered as being the owner of the nursing home for the purpose of the proceedings. At the conclusion of the presentation of the evidence, Mr. Bartlett announced there would be a further inspection and then the transcript of the hearing and the documents (inspection reports and affidavits) would be forwarded to Dr. Domke, the director, for his determination. Mr. Bartlett made no findings or recommendation of record.

On December 12, 1973, William Sisk, accompanied by Ruth Marshall, made another inspection of the home and they filed reports. On April 16, 1974, the director filed his written findings of fact and concluded that “Parker and Parker Nursing Home has not substantially complied with the Practical Nursing Home Rules and Regulations promulgated by the Division of Health pursuant to Section 198.081, RSMo., and the application for a license filed herein on August 7, 1973, is accordingly denied.”

Appellant appealed to the circuit court where the denial was affirmed and she then appealed to the court of appeals where it was reversed and remanded for further consideration by the division of health. As stated supra, the appeal was thereafter transferred to this court.

Although one license was revoked in 1970 and, according to the record here, none have been subsequently issued, it appears that the nursing home has continued in operation without interruption.

As noted supra, appellant insists she is not subject to the “rules and regulations” because they are not “minimum standards” as that phrase is used in sec. 198.120 which specifies the grounds for denial of a license and because the division of health has not prescribed or published “minimum standards” with respect to patient care and identified such publication as “minimum standards”.

The Nursing Home Licensure Law deals with all aspects of nursing homes. It recognizes that some applications will relate to a physical facility that has not been used as a nursing home previously and will not be so used until a license is issued. Obviously that applicant and that proposed nursing home could not be inspected with respect to compliance with ongoing regulations or requirements regarding patient care because there have been no patients.

Other applications are filed by persons new to the nursing home business who desire to utilize a physical facility already in use as a nursing home in which there already are a number of patients. In such instances there is a basis for inspection with respect to compliance with regulations or requirements as to patient care as well as requirements regarding the structure. One other variable may be that the new applicant for a license to continue with an existing nursing home business may or may not have participated in the operation of the particular home by the time the inspection is conducted and the application for license is considered.

In the instant case the appellant sought to become the licensee of a practical nursing home that had been operating for a number of years. It appears that patients remained in the home after the license issued to Mr. Parker was revoked in 1970, that patients were still in the home when appellant Nemitoff applied for a license, and that patients were in the home during the pendency of her application and during all inspections made in connection with her application. For a substantial period of time while her application was pending, appellant was in fact the lessee and the operator of the nursing home. The leasing arrangement was to continue until such time as she became licensed or the licensing procedures had been exhausted. As of the time the administrative hearing was held on November 1,1973, appellant had discharged the prior licensee who had been the administrator of the home. An inspection of the home had been conducted the previous June 22 and the reports were, by stipulation, entered in evidence. There were twenty patients in the home at that time. The reports listed over forty deficiencies, many of which are obviously minor and which could be corrected with very little effort either by providing the missing equipment or by correcting a practice. Others could be solved by the same methods but are of a more serious nature. Appellant, by stipulation, submitted the affidavit of A. J. Parker, the acting administrator of the home. The affidavit dealt with the alleged deficiencies in the inspectors’ ■ reports one by one and tried to explain the matter, deny the defects, or show that the defects had been corrected. Almost all of the deficiencies alleged concerned the day-by-day operation of the home and were directly related to specific patients and their care.

At the conclusion of the hearing, the hearing officer announced that a further inspection of the home would be made before any final decision on the application would be made by Dr. Domke, the director. No objection was made to the director considering the inspection reports of June 1973, the affidavit of A. J. Parker, or the report of the inspection to be made after the hearing.

An inspection was made December 12, 1973, and the reports were forwarded to the director along with the transcript of the November 1, 1973, hearing, and the reports of the June 1973 inspection. Appellant’s attorney forwarded a lengthy letter containing appellant’s comments and responses to the reports of the December 1973 inspection. Some of these responses again were explanations justifying what the inspectors reported as deficiencies, a denial of some allegations, and a statement that others had been corrected. The reports of the December 12, 1973, inspection contained approximately 34 alleged deficiencies, most of which dealt with things that occur on a day-to-day operation of the home. It seems apparent from a comparison between the June and December inspection reports that some alleged deficiencies had been remedied.

It is apparent from the proceedings that appellant knew the granting of a license to her depended upon the director’s findings, and that the inspection reports, appellant’s testimony, the affidavits of Parker, and the responses of appellant, contained the material upon which the director would decide the license question. Virtually all of the matters referred to concerned alleged violations of the “rules and regulations” published by the division of health in a pamphlet entitled, “Missouri Nursing Home Licensure Law”. The word “standards” is used with reference to construction, fire safety, etc. “Requirements” is the word used in the title to the chapter dealing with administration of a home and patient care, and these topics are subdivided into “regulations” with each regulation having several “specific requirements”.

Sec. 198.140 provides in part: “The division of health, after notice and opportunity for a hearing to the applicant or licensee, is authorized to deny, suspend, revoke or refuse to renew a license in any case in which it finds there has been a substantial failure to comply with the requirements established under this law.” (emphasis supplied.)

Sec. 198.120 provides in part: “Grounds for denial of licenses. — An application for a license may be denied for any of the following reasons:

“(1) Failure to meet any of the minimum standards prescribed by the division of health under section 198.072; . . . ”

Sec. 198.072 provides in part: “The division of health shall prescribe and publish minimum standards for all homes . . . These standards shall relate to:

“(1) Location and construction of the home, including plumbing, heating, .

“(2) Number and qualification of all personnel and hours of service, including management, .

“(3) All sanitary conditions within the home and its surroundings, including water supply, sewage disposal, food, clothing and general hygiene which shall insure the health and comfort of residents;

“(4) Diet ...

“(5) Equipment, facilities and supplies essential to the care, health and welfare of the residents;

“(6) Quality of patient care.”

Sec. 198.081 authorizes the division to adopt and enforce rules and regulations relating to the operation of homes, etc., in addition to the authority to prescribe minimum standards.

As noted supra, subsecs. (3)(5) and (6) of sec. 198.072, authorize the division to prescribe minimum standards with respect to sanitary conditions, equipment, etc., essential to the care, health and welfare of the residents and quality of patient care. Chapter 5 of the pamphlet is entitled, “Patient Care Requirements for New and Existing Practical Nursing Homes”, and sets forth what a home must provide in this respect. Chapter 5 is not called “minimum standards”, but rather “Requirements”. It contains numbered “regulations” and numerous “specific requirements”. This obviously was adopted pursuant to sec. 198.-072(6) authorizing adoption of minimum standards for patient care but is referred to as “requirements”, “regulations”, and “specific requirements”.

Considering the variety of terms used throughout the entire act and the verbiage used by the division in describing the provisions adopted by it under the act, it seems clear that the legislature used the terms interchangeably and was so understood by the division since the enactment of the act in 1957. The act contained no “grandfather” clause and was made applicable to nursing homes operating at the time of its passage.

It is unreasonable to believe the legislature authorized the revocation or denial of renewal of a license to an existing home and licensee for failure to comply with the requirements of the division and at the same time intended an existing nursing home to continue to be licensed even though the operator was in substantial violation of the requirements simply because a different person made application for a new license, and even though the new applicant participated in the home’s operation during the period of substantial noncompliance.

The court holds the provisions of the division’s prescriptions denominated “regulations” or “requirements” or “specific requirements” or “standards” or “minimum standards” are applicable to an applicant for a nursing home license where the facility to be used by the applicant is then being used as a nursing home. Specifically, it was proper to apply those provisions to the appellant’s application in this case.

Appellant next contends the respondent’s decision and order did not contain proper findings of fact in that the findings merely recited what inspection reports indicated rather than stating that actual conditions existed. Appellant also contends the “findings were unsupported by substantial and competent evidence”, that respondent failed to consider “undisputed” evidence contained in A. J. Parker’s affidavit, and that respondent’s finding of fact number 2 tacitly admits that appellant had corrected certain violations found in finding number 1.

The findings, conclusion and order denying the license were entered April 16, 1974. The findings are in two sections. Section one relates to the violations reported as a result of the June 1973 inspections. The affidavit of A. J. Parker related to the same subject matter. The second section related to the violations shown by the inspection report of the inspector that took place after the hearing and to which appellant’s counsel responded in behalf of appellant.

The findings recite the director found the first group of violations to have existed on November 1, 1973. They are 18 in number and refer to specific regulations. The second group are violations found by the director to have existed as of the December 19,1973, inspection and they are 16 in number and again are specific and refer to numbered regulations. The findings recite the violations existed as stated supra and then, when reciting the specific violations, refer to one of the inspection reports and use the phrase the “report indicates” and then recite what the report says.

Appellant contends the director’s use of the term “report indicates” did not constitute a finding that the deficiency existed. The director did specifically find the deficiencies to exist as of a specific time. He used the reports as a reference to a particular deficiency. The findings were specific and definite. The point is overruled.

Appellant’s contention that the director did not consider the affidavit of A. J. Parker is not supported by the record. It was admitted in evidence and transmitted to the director. The court has no basis for concluding that he did not consider the evidence. The point is overruled.

Appellant contends the findings were not supported by competent and substantial evidence. The court has reviewed the reports and finds them to be competent and substantial evidence of the violations found to exist.

The contention that the second group of findings tacitly admits appellant’s correction of certain violations found in the first finding is a bit deceptive. It is true that the second group of findings which is based on the post-hearing inspection tends to indicate that certain of the deficiencies found to exist as of an earlier date in the first group of findings had been corrected. Other violations were found to exist in the second group. The violations were found to exist by the director within a relatively short period, November 1, 1973, to December 19, 1973. Even though some of the November 1 deficiencies were corrected as of December 19, the evidence still affords ample support for the denial of a license.

The judgment is affirmed.

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Richard CAMPBELL, Appellant.
    No. 60190.
    Supreme Court of Missouri, En Banc.
    April 14, 1978.
    Rehearing Denied May 9, 1978.

      Murray Stone, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
   BARDGETT, Judge.

Appellant Richard Campbell was convicted in the Court of Criminal Correction of the City of St. Louis for failing to display a driver’s license upon demand of a police officer. He was fined $5 plus court costs. The court of appeals, St. Louis district, affirmed his conviction. This court granted appellant’s application for transfer. Art. 5, sec. 10, Mo.Const., as amended 1970.

The facts in this case were stipulated to by the parties. After appellant was involved in an automobile accident, a police officer asked to look at his driver’s license. At this time appellant had a valid operator’s license but did not display it to the officer because he did not have the license in his possession. The information charged that appellant “did unlawfully fail to exhibit an operator’s license on demand of police officer contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State.”

Appellant filed a brief in the court of appeals contending that it is not a violation of the law to fail to display a license upon demand of a police officer. The state, by letter to the clerk of the court of appeals, confessed error and indicated no brief would be filed. On March 8,1977, the court of appeals issued an opinion which reversed the judgment, adopting appellant’s theory. Subsequently, on March 18, 1977, the state moved for a rehearing for the reason that the correct statute under which appellant was convicted had not been brought to the court’s attention. Although the court of appeals denied the motion for rehearing, it did withdraw the original opinion and, on April 5, 1977, a new opinion was issued adopting the position of the state and affirming the judgment of the trial court.

The statutes relevant to our discussion of the issues presented here read as follows:

Section 302.181, subsec. (3), RSMo Supp. 1973, provides: “The license issued shall be carried at all times by the holder thereof while driving a motor vehicle, and shall be displayed upon demand of any officer of the highway patrol, or any police officer or peace officer, or any other duly authorized person, for inspection when demand is made therefor. Failure of any chauffeur or operator of a motor vehicle to exhibit his license to any duly authorized officer shall be presumptive evidence that such person is not a duly licensed chauffeur or motor vehicle operator.”

Section 302.020, RSMo 1969, provides: “(1) It shall be unlawful for any person . to: (2) Operate, other than as a chauffeur any motor vehicle, except farm tractor, upon any highway of this state unless he has a valid license as an operator under the provisions of this chapter .

Section 302.220, RSMo 1969, provides: “It shall be unlawful for any person to display or to permit to be displayed, or to have in his possession, any chauffeur’s license or motor vehicle operator’s license knowing the same to be fictitious or to have been cancelled, suspended, revoked or altered; to lend to or knowingly permit the use of by another any chauffeur’s license or motor vehicle operator’s license issued to the person so lending or permitting the use thereof; to display or to represent as one’s own any chauffeur’s license or motor vehicle operator’s license not issued to the person so displaying the same, or fail or refuse to surrender to the clerk of any circuit, criminal, magistrate or municipal court, or the director, any chauffeur’s license or motor vehicle operator’s license which has been suspended, cancelled or revoked, as provided by law; to use a false or fictitious name or give a false or fictitious address on any application for a chauffeur’s license or a motor vehicle operator’s license, or any renewal or duplicate thereof, or knowingly to make a false statement, or knowingly to conceal a material fact, or otherwise commit a fraud in any such application; to authorize or consent to any motor vehicle owned by him or under his control to be driven by any person, when he has knowledge that such person has no legal right to do so, or for any person to drive any motor vehicle in violation of any of the provisions of this chapter; to employ as a chauffeur of a motor vehicle, with knowledge that such person has not complied with the provisions of this chapter, or whose license as a chauffeur has been revoked, or suspended, during the period of such suspension; or who fails to produce his or her license upon demand of any person or persons authorized to make such demand.” (Emphasis supplied.)

Section 302.340, RSMo 1969, provides: “Whenever in this chapter the doing of anything is required or is prohibited or is declared to be unlawful, any person who shall be convicted of a violation thereof shall be deemed guilty of a misdemeanor

The court is presented first with the question of whether secs. 302.181, subsec. (3) and 302.020, make it unlawful to fail to present a driver’s license on demand of a police officer. On this issue, the state confessed error. The state also did not argue this point on appeal to this court. As there seems to be a general consensus that the court of appeals properly decided this issue, this court adopts as its own that part of the opinion of the court of appeals set out below:

“There is no clear legislative intent that simple failure to produce a license on demand under § 302.181(3), RSMo 1969, supra, is a crime. The purpose of § 302.181(3) is to assist in the enforcement of § 302.020 by providing a rule of evidence that failure to exhibit a license upon demand is ‘presumptive evidence that such person is not a duly licensed chauffeur or motor vehicle operator.’ See People ex rel. [on Complaint of] Keegan v. Meyer, 194 App.Div. 822, 186 N.Y.S. 434 (1921). In Meyer, supra, it was held that a statute similar to Missouri’s § 302.181(3) prescribed a rule of evidence only. Again in State v. Farren, 140 Ohio St. 473, 45 N.E.2d 413 (1942), similar statute was held to provide a “ result or penalty of its own and hence did not come under the general provisions of a misdemeanor statute. In State v. Eaton, 504 S.W.2d 12, 19 (Mo.1973), the court, although discussing these three statutes in connection with a probable cause for search and seizure question, stated that violation of § 302.020 under § 302.340 constituted a misdemeanor but the court did not say that violation of § 302.181(3) was a misdemean- or. See generally, 6 A.L.R.3d 506; 7 Am. Jur.2d § 98, pp. 668-69, § 126, pp. 686-87.

Failure to produce a license upon lawful demand would give the police probable cause to arrest a driver for a violation of § 302.020. See State v. Eaton, supra at 18 — 19[12]; United States v. Mahanna, 461 F.2d 1110, 1112-13[1] (8th Cir. 1972); Rodgers v. United States, 362 F.2d 358, 360-61[l] (8th Cir. 1966), cert. den., 385 U.S. 993 [87 S.Ct. 608, 17 L.Ed.2d 454]. It provides its own penalty or result in a presumptive rule of evidence to support a charge for violation of § 302.020 and such failure does not constitute a separate misdemeanor offense under § 302.181(3).”

The second question with which this court is presented is whether the appellant’s conduct is proscribed by sec. 302.220, RSMo 1969, and made a misdemeanor by sec. 302.-340, RSMo 1969.

It is a well-settled rule of construction that the context and related clauses of a statute are to be considered when construing a particular portion of the statute. State ex rel. Wright v. Carter, 319 S.W.2d 596, 600 (Mo. banc 1958). Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323, 325 (1952). The state contends that the words “or who fails to produce his or her license upon demand of any person or persons authorized to make such demand” as set out in sec. 302.220 make it unlawful for a motor vehicle operator to fail to display a driver’s license upon demand of a police officer. Considering this portion in the context of see. 302.220, this court must come to the opposite conclusion.

Sec. 302.220 begins by making it unlawful to displaypr possess a fictitious, cancelled, suspended, revoked or altered license. The statute then makes it unlawful to let another use one’s license or to represent as one’s own the license of another. Next, it is made unlawful to fail to surrender to certain persons, e. g., clerk of any circuit, criminal or municipal court, a suspended, cancelled or revoked license. The statute continues by proscribing the falsification of an application for an operator’s license. It then prohibits allowing a person who is unlicensed, or who, in some other way, has violated the provisions of chapter 302, to drive a motor vehicle. To this point the statute has spoken of the unlawful use or possession of prohibited licenses and the unlawful use of an automobile by one not properly licensed. The final clause, if we are to accept the state’s contention, has nothing to do with either of these themes. The state would have the clause in question here introduce a new subject matter unrelated in kind to the remainder of the statute. The offense would be committed by one whose license is valid in all other respects and who has complied with the provisions of chapter 302. The elements of fraud and improper use, which dominate the statute, are absent under the state’s construction. The gravamen of the statute is to prohibit use of an invalid license and not the use of a valid license.

Just as the statute makes it unlawful to fail to surrender a suspended, cancelled or revoked license, this court finds that the clause at issue here relates to the surrender of a license procured through a false or fictitious application.

This construction is in harmony with cognate sections of chapter 302, particularly 302.181. That section provides that a license shall be carried at all times by the holder thereof while driving a motor vehicle. As stated supra, failure to display a license acts as presumptive evidence that the driver is not a duly-licensed motor vehicle operator. It is reasonable to believe that sec. 302.181 was intended to be the only statute on the subject of failure to display a license and that the presumptive evidence rule of sec. 302.181 was intended to be the only sanction for failure to display a license.

This court concludes that neither sec. 302.181 nor sec. 302.220 make it unlawful to fail to display a driver’s license on demand of a police officer. The judgment of the Court of Criminal Correction of the City of St. Louis is reversed and appellant is discharged.

All of the Judges concur.