author: PALMORE, Justice.

text:
    Robert Joseph ULRICH, Appellant, v. KASCO ABRASIVES COMPANY et al., Appellees.
    Supreme Court of Kentucky.
    Jan. 23, 1976.

      Murray J. Greenwald, Ralph G. Stone, Louisville, for appellant.
    Walter R. King, Joseph H. Eckert, Charles E. Duncan, Duncan & Lehnig, Louisville, for appellees.
   PALMORE, Justice.

The appellant, Robert Ulrich, was employed by the Marley Company as a welder. His duties included the operation of portable grinding machines. While he was operating one of these grinders the abrasive wheel or disc that had been mounted on it disintegrated, or “exploded,” as it is described. Some of the pieces of the wheel struck him in the area of the groin, causing painful and permanent injury. He brought suit against Kasco Abrasives Company, manufacturer of the wheel, and Aro Corporation, manufacturer of the grinder, under the strict liability theory. Cf. Restatement, Torts 2d, § 402A. He appeals from a judgment entered pursuant to a jury verdict for both defendants-appellees.

One of the assignments of error is that the trial court should not have submitted the issue of contributory negligence. Another is that the instructions covering basic liability of the defendants were erroneous. We find it unnecessary to reach either of these arguments, being of the opinion that each of the defendants was entitled to and should have been given a directed verdict in its favor.

The Marley Company had a number of similar grinders,- all made by the same manufacturer, Aro. All of the wheels used with them also were made by the same manufacturer, Kasco. The grinders and wheels were kept in a “tool crib” from which they were drawn by various personnel as needed. It was the duty of the person in charge of the tool crib to remove and replace the wheels when they became worn or damaged. Personnel using the grinders, such as Ulrich, were instructed “not to fool with them.” Other personnel, in the maintenance department, had the sole responsibility of maintaining and keeping them in good working order.

The grinders were powered by air pressure, which might vary to some extent, but contained governing mechanisms designed to prevent a rotor speed in excess of 6,000 rpm. Instruction sheets furnished by the manufacturer with each new unit stated that the rotor speed had been set at the factory, that any change might result in wheel explosion, and that adjustment of the governor should be made only by “capable authorized personnel.” A metal label on the grinder housing bore the manufacturer’s name and the words, “Check RPM with each wheel change.” The only means for testing this speed is with a tachometer. The Marley Company had no tachometers, so obviously its maintenance people never complied with this instruction.

The wheel made by Kasco had on it a label stating “maximum rpm 6,000.” Furnished with it by the manufacturer was a list of “do’s and don’ts,” one of which was “Don’t ever exceed maximum operating speed for the wheel.” It was well recognized in the industry that the centrifugal force generated by excessive speed will result in disintegration of this kind of wheel.

There is not any question as to what caused this accident. The grinder had been in use for some five years. It was “battered and banged up.” The spool part of the governor-valve was worn out and could not be properly fitted into place. As a result the governor was inoperable. When tested in its condition following the mishap it ran at speeds up to 9,000 rpm and caused similar wheel explosions. There was no evidence that the wheel was defective.

Ulrich was an 18-year-old with a high school education. He had taken a course in welding which included training in the use of portable grinders. He received no further instruction in that respect from the Marley Company and had no knowledge of what might occur if the grinder should happen to run at an excessive speed. All he did in this instance was to inspect the wheel and the protective shield on the grinder before using it. He depended on his employer’s other personnel for the operating condition of the machine and installation of the wheel. He had seen the “do’s and don’ts” issued for the users of abrasive wheels but had never noticed the maximum speed caveat on the label of the wheel. It was, he said, not “my concern.” Nor had he ever read the speed warning on the panel attached to the grinder (which had to be turned upside down from its operating position in order for the label to be observed).

Ulrich did not draw this particular grinder from the tool crib, but got it at another place in the Marley factory where it had been used by somebody else.

Since there was no provable defect of the wheel and the grinder itself was not in substantially the same condition as it had been when put on the market by Aro, the case against both manufacturers is pitched largely on the theory of inadequate warning. Cf. Post v. American Cleaning Equipment Corporation, Ky., 437 S.W.2d 516, 520-522 (1968). It is contended also that the grinder should have been equipped with a tachometer and that there should have been safeguards to prevent improper assembly of the governor mechanism incident to the process of maintenance and repair. These latter contentions relate, of course, to design.

This court in Dealers Transport Co. v. Battery Distributing Co., Ky., 402 S.W.2d 441, 446—447 (1966), subscribed to the principle of strict liability set forth in § 402A of the Restatement, Torts 2d. Later, in Jones v. Hutchinson Manufacturing, Inc., Ky., 502 S.W.2d 66, 69 (1973), the principle was related to defective-design cases as follows:

“Section 402A of the Second Restatement expresses the so-called ‘strict liability’ principle in terms of a product ‘in a defective condition unreasonably dangerous to the user or consumer or to his property.’ Prosser, the principal draftsman of this section, says in his treatise that a product is ‘defective’ for purposes of application of the strict liability principle when it is made according to an unreasonably dangerous design. Prosser, Handbook of the Law of Torts, section 99, page 659 (4th Edition 1971).”

Our opinion in Jones was not meant, as suggested in the comment appearing at 62 Ky.L.J. 866, 867 (1974), “to define a defect as a variation from industry standards for similar products in such a way that it was negligent to produce such a variation.” To the contrary, it was and is our view that such a variation can amount to no more than evidence bearing on the ultimate factual issue of whether the product was unreasonably dangerous. To emphasize this point we quote from the portion of Prosser cited in Jones as follows (italics ours):

“The question of when a product is unreasonably unsafe has occupied a good many writers. The language of the Second Restatement of Torts in dealing with it is that for strict liability the product must be ‘in a defective condition unreasonably dangerous to the user or consumer or to his property.’ This terminology may perhaps leave something to be desired, since it is clear that the ‘defect’ need not be a matter of errors in manufacture, and that a product is ‘defective’ when it is properly made according to an unreasonably dangerous design, or when it is not accompanied by adequate instructions and warning of the dangers attending its use.
“The prevailing interpretation of ‘defective’ is that the product does not meet the reasonable expectations of the ordinary consumer as to its safety. It has been said that this amounts to saying that if the seller knew of the condition he would be negligent in marketing the product."

As we see it, divorced from the glut of erudition erupting from the scholars, a theory of strict liability for manufacturers of mechanical products ought to be rather simple. The product either is or is not unreasonably dangerous to a person who should be expected to use or be exposed to it. If it is, it can make no difference whether it is dangerous by design or by accident. As aptly observed in 62 Ky. L.J. 866, 875, “the important factor is how safe or dangerous the product is when used as it was intended to be used” [or should reasonably have been anticipated to be used]. If the danger is unreasonable because it is not obvious and may not be apprehended by such a person, then it may be obviated by an adequate warning, so provided or affixed that in the ordinary course of events it will reach and should be understood by that person. Whether such a warning is so provided is nothing more than one of the factors determining whether the product is unreasonably dangerous. Cf. Restatement, Torts 2d, § 402A, Comment j.

Though strict liability does not depend upon negligence, a degree of kinship between the two does inhere in the term “unreasonably dangerous.” Both utilize the concept of reasonable foreseeability. The difference is that negligence depends on what a prudent manufacturer, engaged in a business similar to that of the defendant, by the exercise of ordinary care actually should have discovered and foreseen, whereas strict liability depends on what he would have anticipated had he been (but regardless of whether he actually was or should have been) aware of the condition of and potentialities inhering in the product when he put it on the market. Where the one is actual, the other is postulated.

Applying the foregoing standards to this case, we are of the opinion that a jury could not justifiably find either the grinder or the wheel, marked and labeled as it was, unreasonably dangerous in the sense that a prudent manufacturer of similar products fully apprised of the condition and tendencies of the product when he put it in the stream of commerce would have anticipated a substantial likelihood of injury to a workman using the grinder and exercising ordinary care for his own safety. Hence neither product was “unreasonably dangerous.”

Any high-powered piece of machinery can be dangerous if it is improperly maintained or repaired. There is a limit beyond which the manufacturer simply cannot as a practical matter be expected to go. He is entitled, we think, to rely on the owner of the machine to assume the responsibility for keeping it in safe working order. The owner’s failure to do so (and to warn the operator accordingly) might constitute superseding negligence if it could be found that the tool was unreasonably dangerous in the first place, cf. Hercules Powder Company v. Hicks, Ky., 453 S.W.2d 583, 591 (1970), but in this particular instance we hold as a matter of law that it could not.

The judgment is affirmed.

All concur.

       Since proper design is a matter of reasonable fitness, the strict liability adds little or nothing to negligence on the part of the manufacturer; but it becomes more important in the case of a dealer who does not design the product.

       Again, in the case of the manufacturer, the strict liability adds little or nothing to negligence; but where the sale is by a dealer, who does not know the danger, it becomes important.


source: Caselaw Access Project

author: MORGAN, Judge.

license: Public Domain

text:
    Milton H. SMITH and Lavenia P. Smith, Appellants, v. James R. SPRADLING, Director of Revenue, Respondent.
    No. 59026.
    Supreme Court of Missouri, Division No. 2.
    Jan. 12, 1976.
    Motion for Rehearing or to Transfer En Banc Denied Feb. 9, 1976.
    James L. Muller, Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellants.
    Clarence Thomas, Asst. Atty. Gen., Jefferson City, for respondent.
   MORGAN, Judge.

Appellants filed suit seeking a declaratory judgment that § 301.215, RSMo 1969, V.A.M.S., which provides for issuance of a certificate of “repossessed title” to a secured creditor who has repossessed an automobile, is violative of the Fourteenth Amendment of the United States Constitution and Article 1, Section 10, of the Missouri Constitution in that it deprived them of their property without due process of law. The trial court ruled otherwise and this appeal was perfected.

Factually, the record reflects that appellants on December 28, 1972, purchased an automobile from a dealer on a deferred payment basis and executed a promissory installment note and security agreement specifically authorizing the seller to repossess upon default of payments. A certificate of title was applied for and issued to appellants, and it reflected the lien of United Missouri Bank South, assignee of the security agreement and note. Following an alleged default by appellants, the bank repossessed the automobile by self-help without recourse to judicial process. On February 28, 1974, the bank made application for a certificate of repossessed title pursuant to § 301.215. In compliance with said section, respondent on March 5,1974, notified appellants of the application and that such certificate would not be issued prior to March 14, 1974. They were also sent copies of the “application” and “affidavit” of repossession. Appellants notified the Department of Revenue of their objection, and then filed suit against the bank and James R. Spradling, in his official capacity as Director of Revenue, asking that § 301.215 be declared unconstitutional, an injunction be issued against issuance of the certificate, replevin of the automobile and damages against the bank.

On February 25, 1975, the trial court denied the bank’s motion to dismiss the petition; declared that § 301.215 did not contravene either constitution and sustained the motion of respondent to dismiss as to the Department of Revenue; and designated the latter as a separate judgment for purposes of appeal.

Therefore, the only issue before the court is the constitutionality of § 301.215, which provides, in part:

1. When the holder of any indebtedness secured by a security agreement or other contract for security covering a motor vehicle or trailer repossesses the motor vehicle or trailer either by legal process or in accordance with the terms of a contract authorizing the repossession of the vehicle without legal process, the holder may obtain a certificate of ownership from the director of revenue upon presentation of (1) an application which shall be upon a blank form furnished by the director of revenue and shall contain a full description of the motor vehicle or trailer and the manufacturer’s or other identifying number; (2) an affidavit of the holder that the debtor defaulted in payment of the debt, and that the holder repossessed the motor vehicle or trailer either by legal process or in accordance with the terms of the contract, and the specific address where the vehicle or trailer is held; and (3) the original or a conformed or photostatic copy of the original of the security agreement or other contract for security and the instrument evidencing the indebtedness secured by the security agreement or other contract for security. The director may by regulation prescribe for the inclusion in either or both the application or affidavit any other information that he from time to time deems necessary or advisable and may prescribe that the affidavit be part of the application.
2. Upon the holder’s presentation of the papers and payment of a fee of one dollar, the director of revenue, if he is satisfied with the genuineness of the papers, shall issue and deliver to the holder a certificate of ownership which shall be in its usual form except it shall be clearly captioned ‘Repossessed Title’; provided, however, that unless the application is accompanied by the written consent, acknowledged before an officer authorized to take acknowledgments, of the owners and other lienholders, if any, of the motor vehicle or trailer as shown by the last prior certificate of ownership, if any, issued on the motor vehicle or trailer, for the issuance of a repossessed title to the applicant, no such repossessed title may be issued by the director of revenue unless the director shall first give ten days’ written notice by first class United States mail postage prepaid to each of the owners and other lienholders, if any, of the motor vehicle or trailer at each of their last mailing addresses as shown by the last prior certificate of ownership, if any, issued on the motor vehicle or trailer, that an application for a repossessed title has been made and the date the repossessed title will be issued, and the notice shall be accompanied by a copy, photostatic or otherwise, of each the application and affidavit. The application for repossessed title may be withdrawn by the applicant at any time before the granting thereof. Each repossessed title so issued shall for all purposes be treated as an original certificate of ownership and shall supersede the outstanding certificate of ownership, if any, and duplicates thereof, if any, on the motor vehicle or trailer, all of which shall become null and void.

The question posed is whether or not the issuance of a “repossessed title” by the Director of Revenue, pursuant to the statutory provisions quoted, constitutes “state action” and, if so, does it violate the “due process” clauses of the United States and Missouri Constitutions.

Appellants contend that “state action” is involved within the purview of the Fourteenth Amendment; that the issuance of the title deprives the debtor of substantial property and ownership rights in the automobile because that title is required before the automobile may be sold — -the right to sell being an important incident of ownership; and, that § 301.215 does not afford adequate notice and an opportunity for a prior hearing.

Respondent contends that all of the appellants’ property interests were lost when the bank, pursuant to private contract, physically repossessed the automobile; that self-help repossession does not require the aid, assistance or interaction of any state agent, body, organization or function; that issuance of the certificate of title is merely a ministerial function recording what has already been accomplished by the parties— and, thus, “state action” is not involved and due process standards are not relevant.

This court had occasion recently to consider at length what, in fact, falls within the scope of “significant state action” in Federal National Mortgage Ass’n v. Howlett, 521 S.W.2d 428 (Mo. banc 1975) and Minnesota Mutual Life Insurance Company v. Fuhrman, 521 S.W.2d 440 (Mo. banc 1975). The conclusions reached are clearly articulated therein; and, although statutory provisions relating to the foreclosure of mortgages and deeds of trust under powers of sale were involved, that consideration given to the significance of statutory guid-anee for private activities is relevant to the instant case. We quote a small part of the opinion in the Howlett case, to-wit:

The threshold question we must determine is whether the foreclosure of the deed of trust on appellant’s property involved significant state action. This is so because the due process clause of the fourteenth amendment establishes a limitation on the states, not on individuals. Hence, whether the amendment is applicable in a given situation depends on whether sufficient state action is involved. (l.c. 431)
Citing and relying on the foregoing statutes, appellant contends in her brief that state action was present in the foreclosure of the deed of trust on her property because “the trustee’s power to sell the property and to execute a valid trustee’s deed is made legally possible only by the authority with which the state has clothed him under the foreclosure statute.”
The fact is that the power of sale exercised by the trustee was not derived from the statute nor granted by the state. It is a contractual right established by the power of sale provision in the deed of trust. That instrument, a contract executed by the parties, specifically provided for extra-judicial foreclosure. The contractual nature of such power of sale has been recognized repeatedly in decisions in this state. Abrams v. Lakewood Park Cemetery Ass’n, 355 Mo. 313, 196 S.W.2d 278 (1946); Adams v. Boyd, 332 Mo. 484, 58 S.W.2d 704 (1933); Kelsay v. Farmers’ & Traders’ Bank, 166 Mo. 157, 65 S.W. 1007 (1901); Spires v. Lawless, 493 S.W.2d 65 (Mo.App.1973). See also Logan v. Short, 342 F.Supp. 1349 (E.D.Mo.1972). (l.c. 432)
We hold that the foreclosure of the deed of trust on appellant’s property was pursuant to the contractual provisions in the deed of trust and not by authority of state law. It follows that appellant’s contention that state action was present on the theory that the power of sale exercised by the trustee was conferred by state statute is overruled, (l.c. 433)
The authors conclude . . . that a state statute which authorizes and thereby encourages private conduct does not automatically render that conduct state action under the fourteenth amendment. Using California statutory law as examples, the article points out that state law has an impact upon almost every form of private conduct. The same would be true with respect to Missouri. For example, statutes cover the execution of a will, the execution of contracts, the formation of corporations, the formation of partnerships, the transfer of real and personal property, and many other areas of private conduct. In the sense that the statutes authorize and regulate private conduct, it may be said that they encourage such conduct. Yet the authors conclude that the mere fact that said statutes authorize private conduct does not convert the acts of those individuals into state action, (l.c. 436)
Whenever a contract of any kind is breached, a method of enforcement available to the injured party is by action in the courts. If the fact that one of the parties to the contract has the right to resort to the courts to enforce his rights thereunder means that what the parties did to create those rights becomes state action, it is obvious that almost every kind of individual endeavor would be subject to constitutional review under the fourteenth amendment, (l.c. 437)

Directly in point is Nichols v. Tower Grove Bank, 362 F.Supp. 374 (E.D.Mo.1973), aff'd 497 F.2d 404 (8th Cir. 1974), wherein a debtor also had argued that issuance by the Director of Revenue of a repossessed title, enabling the repossessed automobile to be sold, had the effect of causing the repossession and sale to be “under color of state law.” The court rejected the argument and held that “the nature and extent of the foregoing state involvement in connection with the later sale of the automobile is not . such as to require a finding of the requisite state action.” 362 F.Supp. at 378. A similar argument was rejected without discussion in Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973). It was also rejected in Shirley v. State Nat’l Bank, 493 F.2d 739, 743 n. 5 (2d Cir. 1974).

The article heretofore noted (47 So.Cal.L. Rev. 1), at p. 19, specifically considers “Motor vehicle transíer-of-title statutes” and the following excerpts are found therein:

With most types of personal property, the evidence of ownership of that property can take a variety of forms, including invoices, bills of sale, oral and written transfer agreements and even physical possession of the property. However, because of the increasing number of vehicles, their great mobility in both interstate and intrastate commerce, their substantial potential for injury, their potential for loss through theft, and their value as a source of revenue through the imposition of licensing and registration fees, a centralized system of recording ownership of vehicles has become essential.
The activity of the Department of Motor Vehicles in changing its records of registration and ownership ... is strictly limited to giving evidentiary effect to what previously has been accomplished by purely private action. The Department is not in any way involved in the steps leading to the transfer itself.

Appellants seek to distinguish the authorities noted by submitting that they involved debtors actually in default whereas appellants contend they were not at time of repossession. In view of the appeal being from a dismissal of the petition, as to respondent, allegations therein are taken as true and we have done so in considering the basic issue. In any event, we do not believe the distinction is valid.

When a debtor by contract gives a creditor the right to repossess an encumbered automobile, it would be unreasonable to hold that the power given did not encompass the right to do all things necessary to effectuate the repossession, including the right to apply for and obtain such title as might be required for a subsequent sale. Appellants’ argument is predicated on the false premise that the security agreement by implication or otherwise calls for the state to challenge the creditor’s decision to repossess. The statutory provisions would indicate otherwise. Upon receipt of a facially proper application for title, the debtor is notified so that, in the event he is unaware of the repossession, he can assert against the creditor all rights that he has remaining under the private agreement. The state is not, and never was, a party to the same. From a practical standpoint, the appellants in this case lose nothing by the absence of respondent as a party. If their claim is valid, they can ask the trial court to enjoin any sale by the bank which would protect any property right they might establish.

Finding no significant participation by the state in the private contractual agreement of the parties which reasonably could be found to fall within the accepted legal definition of “state action,” constitutional “due process” is not involved, and thus could not be offended.

The judgment is affirmed.

All of the Judges concur.

      . Consideration was given most every case cited in the instant matter in the Howlett and Fuhrman cases, perhaps because the attorneys for the debtors are the same in each.

      . Reference to Burke & Reber, State Action, Congressional Power and Creditors’ Rights: An Essay on the Fourteenth Amendment, 46 So.Cal.L.Rev. 1003 (1973), and 47 So.Cal.L. Rev. 1 (1973).

      . We are somewhat at a loss, however, as to exactly what the petition declares. For instance, in par. 8 it is pleaded that (on Feb. 26) “defendant Bank without any prior notice to plaintiffs who were not then in default, wrongfully repossessed said automobile” and par. 9 states that (on Feb. 27) “plaintiffs offered to pay the defendant Bank the expenses incurred in repossessing the automobile and to bring the payments under the security agreement up to date.” (Emphasis added.)


author: FINCH, Judge.

text:
    STATE ex rel. Jon Bradly SEIGH and Daniel Henry Quartemont, Appellants, v. Honorable R. S. McFARLAND, Respondent.
    No. 59010.
    Supreme Court of Missouri, En Banc.
    Feb. 9, 1976.

      Keith Brown, Russell & Brown, Nevada, for appellants.
    Preston Dean, Atty. Gen., Robert L. Pres-son, Asst. Atty. Gen., for respondent.
   FINCH, Judge.

This is an appeal from the denial by the circuit court of appellants’ request for a writ of mandamus to compel a magistrate judge to quash an arrest warrant previously issued by the clerk of his court. An appeal was taken to the Missouri Court of Appeals, Kansas City District, which adopted an opinion reversing the judgment of the trial court with directions to enter judgment granting a peremptory writ of mandamus in accordance with the prayer in the petition. Thereupon, on the basis of the general interest in and importance of the case, plus the fact that it involved the validity of Rule 21.08, the court of appeals transferred the case to this court pursuant to Art. V, § 10, Mo.Const. We now decide it as though here on direct appeal. We affirm.

On August 1,1973, the prosecuting attorney of Vernon County filed a complaint in the magistrate court charging appellants herein with unlawfully possessing seven pounds of marijuana. The complaint, which was verified on information and belief, stated as follows:

“The undersigned, Prosecuting Attorney within and for the County of Vernon in the State of Missouri, upon his official oath and upon his oath hereto appended, deposes and states that at the County of Vernon in the State of Missouri, heretofore, to-wit upon the 31st day of July, 1973, one Jon Bradly Seigh and Daniel Henry Quartemont did then and there
willfully, unlawfully and feloniously have in his possession certain narcotics to-wit: approximately seven (7) one pound bags of cannabus sativa, commonly known as marijuana,
contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Missouri.”

A preliminary hearing was held on August 7, 1973, before Honorable R. S. McFarland, judge of the magistrate court and respondent herein, at the conclusion of which respondent found no probable cause to bind appellants over for trial in the circuit court and ordered them discharged.

A few minutes later, the prosecuting attorney filed in the magistrate court a new complaint against appellants, the allegations in which were identical to those on which the preliminary hearing had been held. On the basis of this verified complaint, the clerk of the magistrate court, acting pursuant to Rule 21.08, issued an arrest warrant and appellants were rearrested. Appellants then filed a motion to quash the arrest warrant and for discharge from custody. It asserted that the warrant was issued without probable cause, the magistrate having found immediately prior to its filing that no probable cause existed for trial of appellants on an identical charge. In addition, the motion alleged that issuance of the arrest warrant under those circumstances violated rights of appellants under the fourth and fourteenth amendments to the Constitution of the United States. This motion to quash was overruled.

Thereupon, on August 10, 1973, appellants filed in the circuit court a petition wherein they sought a peremptory writ of mandamus compelling the magistrate (McFarland) to quash the warrant for their arrest, to dismiss the complaint pending against them, and to order their immediate discharge. An alternative writ of mandamus was issued, in response to which respondent appeared. The matter was then heard by the circuit judge, after which he denied appellants’ request for a peremptory writ of mandamus. This appeal followed.

Appellants’ petition for writ of mandamus alleged that said arrest warrant was issued wrongfully and that the magistrate judge “is charged with the legal duty of quashing said warrant and dismissing the complaint upon which it was based.” This is true, say appellants, for two reasons. In the first place, the complaint did not contain facts sufficient to create an independent belief by respondent that there was probable cause that appellants committed the act charged and consequently, the warrant issued violated rights of appellants under the fourth and fourteenth amendments to the Constitution of the United States. Secondly, a preliminary hearing had just been held by the magistrate on an identical complaint, at the conclusion of which he found lack of probable cause to bind appellants over for trial in the circuit court. It follows, they argue, that no probable cause for issuing a new arrest warrant existed.

As previously noted, the arrest warrant under attack was issued pursuant to Rule 21.08. That rule directs a magistrate, or the clerk of his court, to issue an arrest warrant when a prosecuting attorney files a complaint, verified on information and belief, which charges that a felony has been committed by a named accused. When, in spite of the existence of that rule, the motion to quash states that the magistrate had a clear legal duty to quash the warrant on the basis that it violated appellants’ constitutional rights, it necessarily is saying that Rule 21.08 is unconstitutional and should not be followed.

At the outset, we are presented with and must resolve the threshold question of whether mandamus is an appropriate remedy in this situation. We conclude that it is not.

The nature of the writ of mandamus and the scope of its use is reviewed and discussed in MoBar CLE, Missouri Appellate Practice and Extraordinary Remedies (Second Edition), Chapter 8 (1974). As there noted, the courts of Missouri, in cases cited in § 8.3, have held that mandamus issues only to enforce performance of acts which the party commanded has a clear legal duty to perform. This obligation is referred to in some of the cases by the descriptive tag of “ministerial duty”. Apropros the nature of such duty, § 8.10 of the foregoing MoBar CLE publication appropriately states: “Whether it is claimed that the right to the act to be required by the writ of mandamus is required by court decision or statutory law, it is essential that the right to the action requested has already been established.”

In the instant case, the magistrate and his clerk were directed by Rule 21.08 of the Rules of Practice and Procedure promulgated by this court pursuant to Art. V, § 5, Mo.Const., to issue the arrest warrant in question. This being true, we conclude that it cannot be said that the magistrate was under a clear legal duty to determine that said rule was unconstitutional and that on such basis the arrest warrant would be quashed. We find no case in Missouri which has addressed the question of whether mandamus lies to compel such action by the magistrate, but we do find cases from other jurisdictions which use language that is pertinent. For example, in State ex rel. Port Royal Mining Co. v. Hagood, 30 S.C. 519, 9 S.E. 686 (1889), the court said at 688:

“It is insisted, however, that if this be the proper construction of the act of 1884 it is void under the constitution of the state, and affords no justification for the respondents in refusing the license, for the reason that it was a delegation of legislative powers to the board of agriculture. We have just seen that mandamus only lies for the enforcement of a plain ministerial duty; but it is not obvious how that can be a plain duty which is only made to appear by declaring an act of the legislature unconstitutional.”

In the Port Royal case, the court was considering what an administrative agency rather than a magistrate should have done, but the principle announced with reference to the scope of mandamus is relevant to the issue we consider. See also Hadden, Inc. v. City of Inglewood, 101 Cal.App.2d 47, 224 P.2d 913 (1950); State ex rel. McCoy v. Bell, 91 So.2d 193 (Fla. banc 1956); State ex rel. Hutton v. City of Baton Rouge, 217 La. 857, 47 So.2d 665 (1950); Whigham v. State, 39 Ohio App. 163, 177 N.E. 229 (1931).

In 52 Am.Jur.2d, Mandamus, § 95, p. 419, it is stated:

“The view has been taken in some cases that since mandamus lies only to enforce a plain ministerial duty, and that since a plain ministerial duty cannot exist which is made to appear only by declaring a statute unconstitutional, the writ will not issue if it is necessary in order to fix upon the respondent the duty sought to be enforced to declare a statute in conflict with such alleged duty unconstitutional.”

In 55 C.J.S. Mandamus § 63a, p. 101, it is stated:

“ * * * It has been held that mandamus will lie to control the decision of a purely preliminary question of law, but that it will not lie to determine the validity or constitutionality of an ordinance or statute respecting the duty involved.”

We hold that respondent did not have a clear legal obligation to hold Rule 21.08 unconstitutional or to quash the arrest warrant on that basis. Accordingly, mandamus will not lie to require him to take such action. If, in a preliminary hearing on the second complaint filed by the prosecuting attorney, the magistrate binds appellants over for trial in the circuit court, they can preserve the question in the circuit court and on appeal, if convicted.

Judgment affirmed.

All concur.

      . All references to rules are to Supreme Court Rules, V.A.M.R.

      . The complete text of Rule 21.08 is as follows:
      “Whenever complaint shall be made in writing, verified by oath or affirmation (including an oath or affirmation on information and belief by a prosecuting attorney) and filed in any court having original jurisdiction to try criminal offenses, charging that a felony has been committed by a named accused, or if his name is unknown, by any name or description from which he can be identified with reasonable certainty, it shall be the duty of the judge or magistrate thereof, and, upon complaint made by the prosecuting attorney, it shall also be the duty of the clerk thereof to issue a warrant reciting the accusations and commanding the officer to whom it shall be directed forthwith to take the accused and bring him before such judge or magistrate to be dealt with according to law. If such warrant is issued under the hand of the judge or magistrate, it need not be sealed but if it is issued under the hand of the clerk of the court, the seal of the court shall be attached thereto.”

      . As previously noted, this did not occur when a preliminary hearing was held on the first complaint. The magistrate ruled at the end of that hearing that the evidence was not sufficient to bind appellants over to the circuit court for trial.


author: HOLMAN, Judge.

text:
    John F. TRZECKI, III, Plaintiff-Appellant, v. David GRUENEWALD and Steven Gruenewald, Defendants-Respondents.
    No. 59152.
    Supreme Court of Missouri, En Banc.
    Feb. 9, 1976.

      Thomas B. Maloney, Madigan & Maloney, St. Louis, for plaintiff-appellant.
    Gerre Langton, Evans & Dixon, and William W. Evans, St. Louis, for defendants-respondents.
   HOLMAN, Judge.

In this suit for damages for personal injuries the trial court sustained the separate motions of defendants to dismiss plaintiff’s action. Plaintiff appealed to the St. Louis District of the Court of Appeals. That court adopted an opinion which held that plaintiff’s claim was not barred by the statute of limitations and reversed the judgment of dismissal. Upon application of respondents we ordered the case transferred to this court. It will be finally determined here the same as on original appeal. Art. V, Sec. 10, Mo.Const. We affirm.

This suit was filed on November 20,1972. The petition alleged that all of the parties were residents of Missouri and that plaintiff was injured near Springfield, Illinois; that he and defendant David Gruenewald were on a trip which was intended to begin and end in Missouri; that on June 23, 1970, in Illinois, their automobile became inoperative and that David telephoned a request that Steven come to the place of their difficulty and tow the car and transport them back to St. Louis County. Shortly after the tow-trip began Steven’s car was overturned and plaintiff was injured. Both of the automobiles involved were licensed and garaged in Missouri.

Under the Illinois guest statute a cause of action against an automobile driver accrues to a guest occupant only if his injuries are caused by the willful and wanton misconduct of the driver. Ill.Rev.Stat., Ch. 95½, Sec. 10-201. No such misconduct was alleged.

Section 15, Chap. 83, Ill.Rev.Stat. provides that, “Actions for damages for an injury to the person . . shall be commenced within two years next after the cause of action accrued.” And the Missouri “borrowing statute,” Section 516.190 provides that, “Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state.”

In their motions to dismiss defendants pleaded the foregoing statutes of limitation and alleged that since the action was not commenced within two years it was barred. The trial court agreed.

It is plaintiff’s contention that the Missouri five year statute of limitation is applicable to this action and hence the trial court erred in dismissing the suit. His rather ingenious theory is that since he did not charge defendants with willful and wanton misconduct no cause of action accrued to him under Illinois law and his claim for relief is therefore based on the common law of Missouri. This, he says, is in accord with the “dominant interest or principal contacts” doctrine adopted in Kennedy v. Dixon, 439 S.W.2d 173 (Mo.1969).

Defendants, on the contrary, say that the Missouri “borrowing statute” made the two year Illinois statute of limitation, in effect, a Missouri statute for purposes of this case and thus bars the action. They point out that there are a number of Missouri cases that have so ruled.

We have concluded that the cases cited by defendants are applicable and support the trial court’s judgment dismissing the action.

In the case of Girth v. Beaty Grocery Company, 407 S.W.2d 881 (Mo.1966), the collision in which plaintiff was injured occurred in Iowa. That state had a two year statute of limitation and the suit was not filed within that period of time. The trial court dismissed the action on the basis of our borrowing statute. In seeking to avoid the bar, plaintiff on appeal presented a conflict of law theory somewhat like the one we later adopted in Kennedy, contending that we should-bypass the Iowa statute because all the parties resided in Missouri. The court rejected that contention and ruled that there was no conflict of law question in the case since our borrowing statute made the Iowa statute our applicable statute of limitation.

A similar view is expressed in Devine v. Rook, 314 S.W.2d 932, 935 (Mo.App.1958) as follows: “It is fundamental that the law of the place where the cause of action first came to life controls the substantive law of the cause, since the cause owes its existence, and the character of its existence, to that place. But in respect to the enforcement of that cause, the state which lends its courts and its processes to that purpose has the right to say how and when those processes may be used. Hence the law of the forum controls in respect to limitations.

“The effect of the borrowing statutes is not to extend the procedural law of one state into another, but the borrowing state adopts and makes as its own (special statute of limitations) the statute of the other.” See also, Bowling v. S. S. Kresge Company, 431 S.W.2d 191 (Mo.1968) in which this court followed its established rule in applying the borrowing statute.

At this point it should be mentioned that in Kennedy, supra, we abandoned the inflexible lex loci delicti rule in favor of the rule stated in Section 145 of Restatement 2d on Conflict of Laws. That rule permits a choice of law based upon the most significant relationships and contacts. We chose not to apply the Indiana guest law in that case. However, we do not think Kennedy has any application in the instant case because we are not concerned with a conflict of laws question.

The very recent case of Richardson v. Watkins Bros. Mem. Chapels, 527 S.W.2d 19 (Mo.App.1975) is significant. There the plaintiff sought recovery for injuries sustained in Kansas. All of the parties were residents of Missouri and the trip commenced in and was to end in Missouri. The trial court dismissed on the basis that our borrowing statute made the Kansas two year statute applicable. In affirming, the appeals court rejected the contention that Kennedy had the effect of overruling Girth v. Beaty Grocery Company, supra, and the other cases heretofore cited. We agree with that decision. To like effect see also McIndoo v. Burnett, 494 F.2d 1311 (8th Cir., 1974).

Since Kennedy adopted the Restatement rule we think it particularly significant that the Restatement is in accord with the conclusion we have heretofore stated. 1 Restatement of Conflict of Laws 2d, p. 10, Section 6(1) states that, “A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law,” and Section 142(1) reads, “An action will not be maintained if it is barred by the statute of limitations of the forum, including a provision borrowing the statute of limitations of another state.”

In connection with the problem before us we think it should be stated that the Illinois guest statute did not create a cause of action nor did it abolish general tort liability in that state. It is simply a limitation on the right of certain injured parties to recover in a specified situation.

In his reply brief plaintiff contends that our borrowing statute should be construed as applying only in cases involving nonresident parties. The reasoning seems to be that otherwise there is a conflict between our borrowing statute and our tolling statute, Sec. 516.200, in that an action could be barred under the borrowing statute even though the facts would cause it to be tolled under Sec. 516.200. The idea for his contention no doubt came from the case of Coan v. Cessna Aircraft, 53 Ill.2d 526, 293 N.E.2d 588 (1973) wherein the Illinois court reached that result under statutory provisions somewhat different from ours. We see no reasonable basis for holding that Missouri’s borrowing and tolling statutes are in conflict. This contention is accordingly disallowed.

As indicated, we think the foregoing authorities are applicable to and decisive of the question presented in this case and hence that the trial court ruled correctly in dismissing the action.

Judgment affirmed.

All concur.

      . All Missouri statutory references are to RSMo 1969, V.A.M.S.


author: PRITCHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. L. Glendon HYDE, Appellant.
    No. KCD 27940.
    Missouri Court of Appeals, Kansas City District.
    Dec. 31, 1975.
    Motion for Rehearing and/or Transfer Denied Jan. 19, 1976.

      Gary Eldredge, Kansas City (Eldredge & Sterling, Kansas City, of counsel), for appellant.
    John C. Danforth, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   PRITCHARD, Chief Judge.

Appellant was convicted by the verdict of a jury of the commission of the crime of the sale of a controlled substance (cocaine). The jury was unable to agree on the punishment and the court set it at fifteen years imprisonment in the Department of Corrections.

Appellant’s first point is that he was entrapped as a matter of law into committing the offense. The evidence is this: Steven Dennis Courtois was employed by the Platte County Sheriff’s office in narcotics investigation for which he had received special training with the Drug Abuse Law Enforcement program, a division of the federal government under the Department of Justice. On July 3, 1973, Courtois and another deputy, John Dickerson, decided to set up surveillance at 6100 Northwest 70th Street in Kansas City, which was the location of the Hunters Glen Apartments. With Courtois and Dickerson was “the cooperating individual”, Susan Cole, who was seated in the passenger seat of the car. After they entered the Hunters Glen parking lot, Courtois stopped the car next to Building No. 8 and he observed appellant on the balcony. Appellant then walked towards Courtois’ vehicle and entered it where he handed Courtois a folded piece of notebook paper containing a white powder, and Courtois handed him $70.00. Courtois performed a “field test” of the white powder which indicated that it “was positive for the presence of cocaine.” The powder was later identified in court, after a chain of possession through its testing was shown, and it was proved to be cocaine.

Courtois had been advised by Susan Cole that appellant had some narcotics for sale. Susan Cole was a paid employee of Platte County, with whom Courtois had been working about a month. Courtois had met with appellant on two prior occasions, but on the first meeting (two or three weeks prior to June 20th), no sale occurred. On the second meeting with appellant, June 20, 1973, approximately one gram of white powder contained in a folded piece of newspaper was purchased from appellant by Susan Cole, to whom $70.00 was handed for the purpose of handing it to appellant by Courtois. The report made by Courtois did not accurately state the facts of the event in that it indicated that he received the white powder from appellant.

Susan Cole, called as a witness by appellant, testified that she started working for Platte County about the middle of May, 1973, the nature of her working being to “Buy drugs, to set drug deals up and the purchase of them.” Before June 3rd, she had not seen appellant very many times because she had not known him well. She made a lot of phone calls, once, maybe twice a day, to appellant over a period of a month to a month and a half — a total of 35 to 40 calls. The nature of her conversation during the phone calls was to buy drugs. “Q. During these phone calls did he ever agree to sell you any drugs? A. No, not until later. Q. Alright. Now, did he indicate to you at any time that he had drugs available for sale? A. Not really. I just presumed.” Susie did not recall buying any drugs from appellant prior to June 20th. Susie offered to buy drugs from appellant during the phone calls for money, and indicated to him that he could trust her, that she needed the cocaine for her own personal use, and that her state of physical condition was that she needed it. Susie admitted on cross-examination that she testified at a deposition on February 1,1974, that she had called appellant two or three times a week. He had agreed to sell her drugs on other occasions, but had carried through only on July 3rd and on one other occasion. (Although Susie could not give the date, apparently the one other occasion of sale was on June 20, as testified to by Courtois.)

Appellant testified that he first met Susie Cole around the beginning or middle of May. He did not sell her any narcotics before .June 20th. He received repeated phone calls from Susie starting around the middle of May, in the evening probably once a day and sometimes twice a day “for a matter of six, eight weeks.” On June 20th, Susie called him and told him “she was very sick, that she was throwing up, was breaking out into a rash and she needed cocaine.” After that phone call appellant called somebody that he knew might have some “and he said he did.” He waited for Susie to call him back and he then told her that he probably would be able to help her. He went into Kansas City and got it, paying $60.00 for it. For that June 20th sale, appellant was charged with selling to Courtois, but as a result of depositions that charge was dismissed by the prosecuting attorney. Thereafter, the phone calls continued from Susie who told him she did not have anybody to get any cocaine from, and that she was sick and in need of it. On July 3rd, she called and said she was sick again, and appellant advised her to go to the Western Missouri Health Center and have her problem taken care of. “She said she was hurting, in physical pain so I agreed to sell to her again.” Appellant went to Kansas City again and found some which he sold for $60.00, the same amount that he had paid for it. On direct examination, appellant testified further: “Q. You haven’t been arrested for the sale of narcotics? A. No. Q. Alright. Now, you’re not telling the members of the jury that you have not in the past used narcotics, are you? A. No, I’m not. Q. What have you used? A. Marijuana, hashish, a little cocaine.” On cross-examination, he testified: “Q. Could Susie Cole have called you or been present and asked you specifically with regard to obtaining some LSD while you were under the influence of what you thought to be a narcotic drug? A. If it was on a Saturday, possibly.”

Certainly, because of the activities of Susie Cole, Courtois and Dickerson, there was an issue of entrapment in this case, which issue was submitted to the jury by Instruction No. 6. Appellant says by his very abstract Point I [which utterly fails to comply with Rule 84.04(d)]: “Entrapment was Established as a Matter of Law.” The state’s evidence here does not reach the stature of the evidence of entrapment in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), where the court held that entrapment was established as a matter of law from the undisputed evidence of prosecution witnesses. There was no evidence in Sherman which would give a legitimate inference that Sherman was predisposed to commit the offense charged, and evidence of predisposition is admissible to rebut the defense of entrapment. 25 Am.Jur.2d Drugs, Narcotics and Poisons, § 46, p. 322. The question really is what type of evidence could the jury properly consider as bearing on the issue of predisposition to commit the offense. Here, the charge was that of an illegal sale of cocaine. From appellant’s own lips came the evidence that he was a user of “marijuana, hashish, a little cocaine,” and he testified further that, if Susie Cole had called him on a Saturday he could possibly have been under the influence of a narcotic drug.

The possession of marijuana, hashish and cocaine is prohibited under § 195.020, RSMo 1969, as those substances are listed in § 195.017 2.(4)(j) and § 195.017 4.(l)(d). Appellant acknowledged that he knew, from two sources, where he could purchase cocaine in Kansas City, and that he had done so. The evidence shows that he had been “trafficking” in these prohibited substances and had knowledge thereof. Cf. State v. Davis, 450 S.W.2d 168, 171 (Mo.1970). Although no case has been found where a prior “possession” of narcotics would be evidence of a “predisposition to sell” narcotics, there are general statements which support the conclusion that the prior possession would be sufficient to show a predisposition to commit the charged offense so as to rebut the defense of entrapment. In United States v. Becker, 62 F.2d 1007, 1009 (C.A. 2d 1933), the court said, “Even though only those may be induced to commit crime who are already so engaged, it would be a narrow limitation to require that the crime charged should formally be the same. A habitual burglar may steal; a counterfeiter, pass his money; a forger, embezzle. The whole doctrine [of entrapment] derives from a spontaneous moral revulsion against using the powers of government to beguile innocent, though ductile, persons into lapses which they might otherwise resist. Such an emotion is out of place, if they are already embarked in conduct morally indistinguishable, and of the same kind.” [Emphasis and brackets added.] And note the comment, 73 Harvard Law Review, 1333, 1339 (1960), “Therefore, if the defense of entrapment has not already become available under either the first [type of inducement] or second [nature of the crime] step of the proposed test, or has not already been foreclosed under the first step, it should be available unless the prosecution can show by a preponderance of the evidence that the defendant was engaged in a course of criminal activity similar to the crime which he performed at the invitation of law enforcement officers. [Brackets added.] As proof of this fact, evidence of recent dissimilar crimes which have gone unpunished, and evidence of prior convictions would be relevant but circumstantial. * * * The willingness with which the defendant complied, in the light of the type of inducement offered and the seriousness of the criminal act, can afford strong indication of a continuing course of similar conduct, but some additional evidence seems necessary. This might be supplied by a modus operandi indicating familiarity with the criminal business, by a facility in obtaining contraband, by possession of the precise tools necessary for the offense, or by statements of the accused.”

In Walker v. United States, 285 F.2d 52, 56[l-3] (C.A. 5th 1960), it was said, “From a résumé of the testimony set forth above, including circumstances indicating that the relationship between White and defendant was casual, defendant was willing to deal with White by telephone, the clandestine methods employed by him in hiding narcotics in the ditch, his previous experiences with illicit dealings in narcotics and his own conduct in both transactions, the jury could reasonably have concluded that defendant was a person engaged in illicit narcotic drugs traffic, ‘not an innocent person in whose mind the Government implanted a criminal design’. And the jury could have believed he had a ‘predisposition’ and ‘intention or readiness’ to commit the crimes charged, that these offenses were not ‘the product of the creative activity’ of law enforcement officials.” (Emphasis added.) See also Carlton v. United States, 198 F.2d 795, 798, 799 (C.A. 9th 1952). Compare Pulido v. United States, 425 F.2d 1391, 1393, et seq. (C.A. 9th 1970). The evidence was sufficient for the jury to consider as rebuttal of, or controverting, the issue of entrapment, and the court did not err in submitting that issue to the jury. Appellant suggests in argument that there must exist a reasonable suspicion upon the part of law enforcement officers that an accused was engaged in narcotic traffic before they could proceed to entrap him. This suggestion is answered by State v. Burrow, 514 S.W.2d 585, 589 (Mo.1974), where it was held that “reasonable suspicion” is only an evidentiary element to be considered and is not properly an independent element for proof of nonentrapment. As noted, there is a sufficiency of other evidence on the issue of nonentrapment in this case. Point I is overruled.

Again abstractly stated, appellant’s Point II sets forth that “The objective test of entrapment should be adopted.” Suffice it to say that application of the subjective test of entrapment is the rule of this state. State v. Golightly, 495 S.W.2d 746, 750[1] (Mo.App.1973), and cases cited. Point II is therefore overruled.

Point III, again in the abstract, is “The Fifteen Year Sentence Should Be Vacated.” In this state it has long been held that an appellate court will not interfere with a punishment imposed within the range of penalties imposed by legislative enactment. Golightly, supra; State v. Stock, 463 S.W.2d 889, 895 (Mo.1971). Point III is overruled.

The judgment is affirmed.

All concur.


author: SOMERVILLE, Judge.

text:
    Ronnell CLAY, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28007.
    Missouri Court of Appeals, Kansas City District.
    Dec. 31, 1975.
    Motion for Rehearing and/or Transfer Denied Jan. 19, 1976.

      Thomas M. Larson, Public Defender, Sixteenth Judicial Circuit, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., WASSER-STROM and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Ronnell Clay, following a preliminary hearing, was charged by an information in the Circuit Court of Jackson County, Missouri, with robbery in the first degree to which he pleaded not guilty. Plea bargaining subsequently ensued, initiated by Clay’s employed counsel, with Clay’s full knowledge and approval, with the end result that the charge of robbery in the first degree was reduced by the state to “stealing from the person”. Clay entered a plea of guilty to the reduced charge and, following a pre-sentence investigation, judgment and sentence were entered and pronounced and Clay’s punishment was fixed at. six years confinement in the Missouri Department of Corrections.

The matter is now lodged in this court by virtue of an appeal taken by Clay from a denial of post-conviction relief sought by him under Rule 27.26. By his Rule 27.26 motion, Clay sought to have his sentence vacated and set aside and to be permitted to plead anew to the reduced charge. The single point relied upon by Clay on appeal is somewhat gauzy. Nevertheless, when read in conjunction with his argument, this court perceives it as being predicated upon the dual propositions that (1) he was not advised of the nature of the reduced charge and therefore did not understand the nature of the charge to which he pleaded guilty and (2) his plea of guilty was equivocal because he had no personal recollection of the facts surrounding the offense reflected by the reduced charge. The focus of this opinion will be limited to the dual propositions mentioned.

Rule 25.04, in positive terms, prohibits a court from accepting a plea of guilty “without first determining that the plea is made voluntarily with understanding of the nature of the charge”, and if a defendant “pleads equivocally . . . the court shall enter a plea of not guilty. . . . ” The prophylactic requirements of Rule 25.04 are obviously directed toward assurance that an accused has intelligently and voluntarily relinquished certain basic constitutional rights connoted by a guilty plea.

The transcript of the plea proceedings (offered by Clay as a part of the record in the hearing on his Rule 27.26 motion) relative to Clay’s present contention that he was not advised of the nature of the reduced charge and therefore did not understand the nature of the charge to which he pleaded guilty, reveals the following:

(1) The assistant prosecuting attorney handling the case for the state, in open court, in the presence of Clay and his employed counsel, stated: “Your Honor, at this time, in Cause No. C-43029, the State wishes and does reduce the charge from robbery in the first degree to stealing from the person.”

(2) In response to the following questions asked by the court, Clay gave the following answers under oath:

“Q All right. Do you understand further that by making this plea of guilty to this charge, that you are, in reality, admitting that you did steal from the person of somebody else?
A Yes.
Q All right. I should tell you that the mental report that I received, and this is a report from Dr. Swerenz, I think your report to him was that you had no recollection of committing this crime?
A Correct.
Q I assume that what you’re saying, then, is that you’ve had a chance to review the evidence that’s pending against you and you are satisfied that you committed the crime, even though you don’t have any recollection of it?
A Again, may I answer in a statement?
Q Surely.
A I’m saying that I — it’s possible, you understand, for me to be conveniently forgetful, but I’m not contending that. I’m not using that as a defense. I’m pleading guilty because I am guilty of said — of this crime.
Q Now, you have indicated to me on several occasions that you are pleading guilty because you feel that you are guilty.
A Correct.
Q All right. Will you tell me what you know about this, and what it is that you’re pleading guilty to, that you recall?
A I’m pleading guilty to taking some money from a — from one Ted Bit-tick.
Q And did that take place on September 6, 1972?
A Yes. To my knowledge, yes.”

The identical contention presently argued by Clay, in a substantially similar procedural and fact context, is mirrored in Moore v. State, 496 S.W.2d 810 (Mo.1973). There, as here, the prisoner filed a Rule 27.26 motion seeking to set aside his plea of guilty to a reduced charge of “stealing from the person”. Initially, the prisoner had been charged with robbery in the first degree. The trial court denied the prisoner’s request for post-conviction relief and on appeal he contended his plea of guilty was involuntary because he did not understand the nature of the reduced charge to which he had pleaded guilty. The court in disposing of this contention adversely to the prisoner held: “We have some difficulty in determining how the offense could better be described than by the use of the words, ‘stealing from the person.’ This is not a technical term which has a legal meaning unfamiliar to persons not trained in the use of legal language. Rule 25.04 imposes no requirement that a judge mount the bench with a script in hand and follow a precise ritual. Neither is it necessary that ‘in order to convey an understanding of the “nature of the charge” to the defendant, [that the court] explain the “elements” of the offense.’ Sappington v. United States, 468 F.2d 1878 (8th Cir. 1972).” Moore v. State, supra, in conjunction with the above revelations disclosed by the transcript of the plea proceedings, leaves no doubt that the first of Clay’s dual propositions is not well taken and the same is ruled against him.

The transcript of the plea proceedings and the transcript of the hearing on the Rule 27.26 motion in this case both support Clay’s contention that he had no personal recollection of the facts and events surrounding the occurrence that precipitated the charge to which he pleaded guilty. Clay attributed his inability to recall any such facts or events, and as well, his whereabouts and activities otherwise on the date in question, to a long history of drug addiction. He then takes a short and convenient step and argues that his plea of guilty was rendered equivocal because he had no personal recollection of having perpetrated the crime. The issue to be resolved can be more lucidly stated by posing it in the form of a question. Must a plea of guilty, if otherwise intelligently and voluntarily entered, be deemed equivocal, and in legal contemplation stripped of all attributes of having been intelligently and voluntarily entered, when an accused claims to have no personal recollection of having committed the crime to which his plea of guilty was responsive? This question is answered in the negative by North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162, 171 (1970): “[W]hile most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” In a legal sense Clay’s plea of guilty was not as chameleonic as he contends. Missouri recognizes that an Alford type plea does not render a plea of guilty equivocal. Robinson v. State, 482 S.W.2d 492, 494-495 (Mo.1972) and Bradley v. State, 494 S.W.2d 45, 48 (Mo.1973). The transcript before this court is replete with evidence that Clay, prior to entering his plea of guilty, was advised by counsel as to the nature and extent of the state’s case— among other things, the existence of two eye witnesses (one being the victim) who positively identified Clay as the perpetrator of an armed robbery on the victim whereby a sum of money totalling $11.00 was obtained. It is implicit throughout the transcripts that Clay was acutely aware that the state’s case did not suffer from a paucity of proof, and that he had much to gain if the charge of robbery in the first degree could be reduced to stealing from the person, and, once a reduction was effected, by pleading guilty to the reduced charge. Clay was not oblivious to the more favorable range of punishment attached to the reduced charge, as opposed to the possibility of a sentence of not less than five years if convicted of the offense for which he originally stood charged. On the basis of the record and the authorities heretofore cited the latter of Clay’s dual propositions is ruled against him.

Full consideration of the arguments presented on appeal, coupled with a careful review of the record in its entirety, however unfortunate from Clay’s point of view, fail to reveal any legal path upon which Clay can walk out from under his plea of guilty. The record supports Clay’s plea of guilty as having been voluntarily made "with an understanding of the reduced charge, and the judgment of the trial court is accordingly affirmed.

All concur.

      . Sec. 560.161, RSMo 1969, — not more than ten years nor less than two years, or by confinement in the county jail for not more than one year, or by a fine of not more than one thousand dollars, or by both such fine and confinement.

      . Sec. 560.135, RSMo 1969.


author: TITUS, Judge.

text:
    William Leslie MITCHELL, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 9800.
    Missouri Court of Appeals, Springfield District.
    Jan. 9, 1976.
    Motions for Rehearing or to Transfer to Supreme Court Overruled Jan. 28, 1976.

      John W. Sims, Marshfield, for movant-ap-pellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Movant, convicted of forcible rape, was sentenced to 12 years’ imprisonment. On appeal, the judgment of conviction was affirmed. State v. Mitchell, 500 S.W.2d 320 (Mo.App.1973). The present appeal is from denial, after evidentiary hearing, of mov-ant’s motion to vacate and set aside the sentence. Rule 27.26, V.A.M.R.

Movant’s points relied on centralize the preprosecution lineup conducted by the sheriff. He says: (I) the lineup procedures leading to movant’s identification by the rape victim were so defective, unnecessarily suggestive and conducive to irreparable mistaken identification as to be constitutionally inadmissible and a denial of due process; (II) movant was refused his constitutional right to have counsel present during the lineup; (III) movant was denied effective assistance of counsel and a fair trial because court-appointed counsel failed to challenge the lineup by motion to suppress and did not challenge in-court identification made by the complaining witness.

The transcript of the criminal trial containing the in-court identification of movant by the complaining witness was not introduced at the postconviction hearing. Nevertheless, we take judicial notice of it for the same reasons expressed in Layton v. State, 500 S.W.2d 267, 269-270[4-8] (Mo.App.1973). While some of the in-court identification testimony is recited in the opinion filed on direct appeal (State v. Mitchell, supra, 500 S.W.2d at 321-322), we have again examined the transcript of the criminal trial and find no testimonial link between the lineup and the victim’s in-court identification. In fact, no reference was made to the lineup at the criminal trial, and at the postconviction hearing the alleged rape victim was adamant that her in-court identification was “most definitely” based upon her observations of movant on the day of the offense and was “not based at all upon the lineup.”

The matter of illegal identification resulting from the lineup as claimed by movant was, at most, a subject for trial error. Where, as here, no objection was voiced at the rape trial regarding the victim’s identification of movant as her assailant, and no reference to it was made in the motion for new trial or in the direct appeal, the issue as to whether movant was denied due process on the ground that circumstances of his identification were unduly suggestive, was not preserved for review in a proceeding to vacate the judgment of conviction under Rule 27.26, V.A.M.R. Mooring v. State, 501 S.W.2d 7, 10[1] (Mo.1973).

Another answer to movant’s complaints anent the lineup is that albeit the lineup identification is in some way suggestive or tainted, yet if there be an untainted positive in-court identification made upon a factual basis independent of the lineup, such in-court identification is proper. State v. Rutledge, 524 S.W.2d 449, 456[5] (Mo.App.1975). The rape victim’s testimony provided evidence of that independent source. See also State v. Warters, 457 S.W.2d 808, 812—813[7] (Mo.1970); State v. Williams, 448 S.W.2d 865, 868[4, 5] (Mo.1970); State v. Tehee, 445 S.W.2d 285, 286[1] (Mo.1969).

As to movant’s averred grievance in being denied counsel at the lineup, it is ceded that no charge had been filed against him when the lineup was conducted. Presence of counsel is not required at a prein-dictment, precomplaint or preprosecution lineup [State v. Jones, 528 S.W.2d 14, 15[2] (Mo.App.1975)], and as no evidence was presented at the criminal trial of any lineup identification, it is additionally immaterial that no counsel was present at the lineup. State v. Stephens, 507 S.W.2d 18, 19[2] (Mo. banc 1974).

Finally, and to repeat, examination of the complaining witness’ trial testimony demonstrates an unequivocal in-court identification predicated on observations made of movant at the scene of the crime and while the offense was being committed. Thus, the victim’s identification was wholly untainted by and independent of the lineup. Therefore, even assuming, arguendo, the lineup procedure was improper, since it was neither mentioned at trial nor relied on by the victim, counsel’s failure to challenge the lineup by motion to suppress (or whatever) or to object to the prosecuting witness’ in-court identification of movant made independent of the lineup, provides no basis for a claim of ineffectiveness of counsel. Steward v. State, 499 S.W.2d 830, 834[6, 7] (Mo.App.1973).

The order overruling the motion herein is affirmed.

All concur.


author: BILLINGS, Chief Judge.

text:
    Violet ANDERSON, Respondent, v. Don ANDERSON, Appellant.
    No. 9889.
    Missouri Court of Appeals, Springfield District.
    Jan. 12, 1976.

      Arthur B. Cohn, Waynesville, for respondent.
    R. M. Becker, Hiett, Becker & Beeler, Houston, for appellant.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Dissolution of marriage proceeding in which the appellant-husband complains the Circuit Court of Maries County erred in its award of maintenance and marital property to respondent-wife.

We have read the transcript and the briefs of the parties and are of the opinion the judgment of the trial court is based on findings of fact which are not clearly erroneous. We do not find the award to respondent to be excessive, and the court was empowered to divide the marital property between the parties. No error of law appears, and an opinion would be of no prece-dential value.

Respondent’s motion to dismiss the appeal because of untimely filing of the notice of appeal and insufficiencies of appellant’s brief is overruled, and the judgment of the trial court is affirmed pursuant to Rule 84.16(b), V.A.M.R.

All concur.

      . The respondent contended § 452.360 required notice of appeal to be filed within 10 days after entry of the dissolution decree. The St. Louis District of this Court considered and rejected the identical proposition in State ex rel. Nilges v. Ruth, No. 37,129, decided December 30, 1975, ruling that for purpose of appeal the finality of a dissolution judgment is governed by Rules 75.01, 81.05 and 81.04.


author: COOPER, Justice. COOPER, Justice.

text:
    Junior BAKER, Appellant, v. Charles Henry HUGHES et al., Appellees.
    Supreme Court of Tennessee.
    Dec. 15, 1975.
    LLoyd S. Adams, Jr., Adams & Albright, Humboldt, for appellant.
    W. H. Lassiter, Maddox, Lassiter & Jones, Huntingdon, for appellees.
   OPINION

COOPER, Justice.

Plaintiff, Junior Baker, filed an action in the Circuit Court of Benton County to recover damages for the wrongful death of his wife, who was killed in a collision between the ambulance in which she was riding and a tractor trailer rig. The collision occurred on January 11, 1975, on Highway 70 within the limits of the Town of Huntington (Carroll County), Tennessee. Named as defendants were Benton County, the owner of the ambulance involved in the accident, and the owner, the lessee, the trip lessee, and the driver of the tractor trailer rig involved in the accident, and the Town of Huntingdon and its police officer, Pin-son, who was escorting the ambulance when the accident occurred. The Town of Hun-tingdon and the police officer moved to dismiss the action against them for lack of venue. The motion was sustained and plaintiff was granted a discretionary appeal to test the trial court’s holding that a tort action against the Town of Huntington and its employee could be maintained only in Carroll County, the situs of the town.

This court has consistently held that actions against governmental entities are inherently local actions and must be brought in the county where the governing body is located. The leading case espousing this rule undoubtedly is Nashville v. Webb, 114 Tenn. 432, 85 S.W. 404 (1904), wherein the court enjoined the execution of a judgment rendered against the City of Nashville in the Circuit Court of Wilson County. The court there pointed out that:

“. . . actions against municipal corporations are inherently local. These bodies cannot change their situs or their place of abode. They cannot remove from one place to another, and sojourn for a time at this point or that. They remain stationary; hence they must be sued where they are found — that is, in the county of their location. It is a misnomer, a misapplication of terms, to speak of an action against such a body as transitory, no matter what the ground may be on which the right of action rests.”
The court goes on to emphasize that: “. . . it is of the greatest importance to the welfare of such bodies, and of the citizens whom they serve, that their officers should be permitted to remain at home and discharge their public duties, instead of being called hither and thither over different parts of the State to attend to litigation brought against the city through the agency of counterpart writs.” (Emphasis supplied.)

Piercy v. Johnson City, 130 Tenn. 231, 169 S.W. 765, decided in 1914, involved an action against the city for damage to land. Suit was brought in the county in which the land was located, not in the county which was the situs of the defendant municipality. Application of the common law rules of venue produced a conflict since actions against a municipality and actions for damage to land were both described as local. The court held that the public policy supporting the rule of Nashville v. Webb, supra, should prevail. The rule of Nashville v. Webb, supra, was applied without question almost sixty years later in Keeble v. Loudon Utilities, 212 Tenn. 483, 370 S.W.2d 531 (1963), and Shelby County v. City of Memphis, 211 Tenn. 410, 365 S.W.2d 291 (1963).

In these cases, however, only one governmental entity was involved as a defendant and consequently all defendants could be brought before the court in a single action filed in the county which was the situs of the defendant governmental entity. That is not the situation in the present case. Here we have two governmental entities as defendants. The slavish application of the Webb rule would result in forcing plaintiff to sue each governmental entity separately, each in its own county, thereby forcing plaintiff to incur additional expense, to risk inconsistent verdicts, and to further congest court dockets. These results are not desirable. We think the need for judicial efficiency, including the avoidance of a multiplicity of suits and the possibility of inconsistent verdicts, outweighs the advantages resulting from the basic policy of localizing actions against a governmental entity. See Rule 22.01 of the Tennessee Rules of Civil Procedure and editorial comment thereon. To gain this efficiency and at the same time preserve as much of the efficacy of the Webb rule as possible under the circumstances, we hold that in the absence of statutory authority to the contrary, where two or more governmental entities, or their agents and officials, are material defendants, the plaintiff may bring his action at the situs of either governmental entity. Cf. Putnam County v. White County, 140 Tenn. 19, 203 S.W. 334 (1917), involving a boundary line dispute between two counties, and T.C.A. 23-3320 which localizes tort actions against a single governmental entity to the situs of the governmental entity.

Reversed and remanded. Costs of the appeal are adjudged against the defendants, City of Huntingdon and Pinson, and their surety.

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

OPINION ON PETITION TO REHEAR

COOPER, Justice.

The Town of Huntington and Mark T. Pinson have filed a petition to rehear which presents no issues or authority not considered by this court in the preparation of its opinion in this case. Under Rule 32 of this court, the petition to rehear is denied.

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