author: FLANIGAN, Judge. BILLINGS, Chief Judge

text:
    Virginia NIEMCZYK, Appellant, v. Sue BURLESON, Respondent.
    No. 10065.
    Missouri Court of Appeals, Springfield District.
    June 29, 1976.

      James R. Robison, Robison & Blanton, Sikeston, for appellant.
    William Clayton Vandivort, Hux & Green, Sikeston, for respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Plaintiff was injured while participating in a softball game in Bell City, Missouri. Defendant was the shortstop on the opposing team. As plaintiff, a base runner, was attempting to advance from first base to second base, defendant ran across the infield and collided with plaintiff in the base path.

The petition is grounded on negligence. There is no claim of intentional misconduct on the part of the defendant.

The trial court agreed with defendant that the petition failed “to state a claim upon which relief can be granted,” Rule 55.27(a)(6), and sustained defendant’s motion to dismiss which attacked the petition on that ground. Plaintiff appeals.

The petition alleged that on July 8, 1974, plaintiff, as a member of a team from Bell City, and defendant, as a member of a team from Fisk, were participants in a softball game. Paragraph 3 of the petition alleged that the collision (and defendant’s resultant injuries and damages) was caused by the following:

3(a) Defendant moved into a position in the baseline where she knew or by the exercise of ordinary care should have known that plaintiff was running and was in such a position that a collision was imminent;

(b) Defendant attempted to block the baseline with her body at a point on the field where a defensive player had no right to be and where plaintiff was entitled to run without interference from defensive players;

(c) Defendant knew or by the exercise of ordinary care should have known that a base runner between first base and second base would expect the baseline to be open and clear and defendant then negligently and carelessly blocked that baseline in such a manner and at a time and place when plaintiff was running so fast that there was not sufficient time for her to avoid the collision.

(d)Under the rules of softball, an advancing base runner has the right-of-way in the base path and defendant negligently and carelessly violated the rules by blocking the base path at a time and place where by the exercise of ordinary care, she should have known such conduct would result in a collision.

It is well known that participation in various forms of athletics is widespread throughout this nation. Yet there are remarkably few reported cases which involve personal injuries sustained by a participant during the course of the game for which tort liability is sought to be imposed upon another participant. See 7 A.L.R.2d 704 [“Liability for injury to or death of participant in game or contest”; cases involving coparticipants appear at p. 714.] See also 11 N.C.C.A.4th 6 (Case note: Injuries to Participants in Sporting Events) at p. 62; 65A C.J.S. Negligence § 174(6), p. 302.

“A voluntary participant in any lawful game, sport, or contest, in legal contemplation by the fact of his participation, assumes all risks incidental to the particular game, sport, or contest which are obvious and foreseeable. But he does not assume an extraordinary risk which is not normally incident to the game, sport, or amusement activity unless he knows about it and voluntarily assumes it.” 4 Am.Jur.2d Amusements and Exhibitions § 98, p. 226.

Cases in which a player of softball or baseball sued another player for personal injuries sustained by the plaintiff during the course of the game include Gaspard v. Grain Dealers Mut. Ins. Co., 131 So.2d 831 (La.App.1961); Benedetto v. Travelers Ins. Co., 172 So.2d 354 (La.App.1965); Tavernier v. Maes, 242 Cal.App.2d 532, 51 Cal.Rptr. 575, (1st Dist. 1966); and Gordon v. Deerpark Sch. Dist. No. 414, 71 Wash.2d 119, 426 P.2d 824 (1967).

Gaspard, Benedetto, and Gordon involve injuries sustained by a flying bat let loose by the defendant. In Gaspard, the trial court, sitting without a jury, found for the defendant. The appellate court, in affirming the result, pointed out that baseball “is a strenuous game involving danger to both players and spectators” and that the injury resulted from a risk inherent in the game in which plaintiff had voluntarily participated. In Benedetto, also a non-jury action, the trial court found in favor of the plaintiff but this was reversed on appeal. The appellate court found from the evidence that there was no negligence on the part of the batter but that “if such negligence did in fact exist [plaintiff] had assumed the risk or was guilty of contributory negligence.” In Gordon, the negligence of the batter was held to be a jury issue. In Tavernier, defendant was a base runner who slid into plaintiff at second base. A judgment in favor of the defendant was affirmed, although the court, in dictum, indicated that the plaintiff may have made a submissible case in view of the informality of the game, raising a question for the jury whether “a participant could be expected to slide” or whether “defendant’s slide was of a type that exposed plaintiff to a risk of a magnitude which he could not have anticipated.”

Baseball or softball eases, against defendants other than the coparticipant but involving the latter’s conduct, include Mann v. Nutrilite, Inc., 136 Cal.App.2d 729, 289 P.2d 282 (1955), (plaintiff struck by thrown ball; no submissible case), McGee v. Board of Education of City of New York, 16 A.D.2d 99, 226 N.Y.S.2d 329 (1962), (plaintiff struck by thrown ball; no submissible case), and Dudley v. William Penn College, 219 N.W.2d 484 (Iowa 1974), (plaintiff struck by foul ball; defendant’s verdict affirmed).

It is the theme of the foregoing cases that a voluntary participant in a baseball or softball game assumes the risks ordinarily incident thereto and only in exceptional circumstances may he recover from a copartic-ipant for injuries unintentionally caused by the latter.

Restatement Torts 2d § 50, comment b, p. 86 (1965) states, in relevant part:

“Taking part in a game manifests a willingness to submit to such bodily contacts or restrictions of liberty as are permitted by its rules or usages. Participating in such a game does not manifest consent to contacts which are prohibited by rules or usages of the game if such rules or usages are designed to protect the participants and not merely to secure the better playing of the game as a test of skill. . . . ”

Missouri plaintiffs, injured while participating in a sport, encounter certain principles which impede, but may not always totally obstruct, their paths to success.

A participant in a sport accepts certain “hazards or dangers, those that reasonably inhere in the sport so far as they are obvious and usually incident to the game.” Perkins v. Byrnes, 364 Mo. 849, 269 S.W.2d 52, 53[2] (1954) (a swimming case).

In Schamel v. St. Louis Arena Corp., 324 S.W.2d 375 (Mo.App.1959), a skating rink case, the court said at p. 378[2]: “[Plaintiff] assumed risks that were inherent in the sport or amusement in which she was engaged, such as falls or collisions with other skaters brought about by her own or other skaters lack of skill or clumsiness. Such things are not extraordinary occurrences in skating rinks . . . . But she did not assume any extraordinary risks caused by the obvious misconduct of other patrons which could have been detected and controlled by the defendant.” (Emphasis added)

Another skating rink case contains this language: “Plaintiff, being a voluntary participant in (what many people consider to be) a sport, assumed the ordinary risks inherent in such activity, whether from accident, mischance or inadvertence, but not such risks as are associated with the negligence of the proprietor.” (Emphasis added) Humbyrd v. Spurlock, 345 S.W.2d 499, 502[4] (Mo.App.1961). See also Reay v. Reorganization Inv. Co., 224 S.W.2d 580, 582[2, 3] (Mo.App.1949) to the effect that falling and colliding with other skaters is not “an extraordinary occurrence for those indulging in that form of exercise.”

In Keaton v. Good, 350 S.W.2d 119 (Mo.App.1961), a horse racing case, it is said that a participant in that sport “assumed the ordinary risks inherent in the activity in which he was engaged . . . .” In Kungle v. Austin, 380 S.W.2d 354, 359[4] (Mo.1964), a trampoline case, it is said: “One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball.” (Emphasis added)

The doctrine of assumption of risk, an affirmative defense (Rule 55.08 Y.A.M.R.), has been characterized as “an extremely doubtful defense under our recent cases.” McCormick v. Smith, 459 S.W.2d 272, 274 (Mo.1970). Its “viability in Missouri negligence cases” has been questioned. Ballew v. Schlotzhauer, 492 S.W.2d 774, 777 (Mo.1973). For discussion of the assumption of risk doctrine and the distinction between it and contributory negligence, see Turpin v. Shoemaker, 427 S.W.2d 485 (Mo.1968).

Though the doctrine of assumption of risk may have a short life expectancy in Missouri, it has not yet expired, and this court has held that “a pleader may literally plead himself out of court, and when facts constituting a defense affirmatively appear upon the face of the petition, the defense may be interposed by motion to dismiss without the necessity of a specific motion or answer.” Household Finance Corp. v. Avery, 476 S.W.2d 165, 168[6] (Mo.App.1972).

Some appellate decisions contain litany to the effect that a person does not assume the risk of another person’s negligence but our supreme court has stated that “in many negligence cases assumption of risk may defeat a claim originating in a charge of negligence” and that “plaintiff is mistaken in urging that the doctrine of assumption of risk falls out of every case where it is shown that defendant is negligent.” Terry v. Boss Hotels, Inc., 376 S.W.2d 239, 249 (Mo.1964). In support of the foregoing, the court cited Reay, Schamel and Humbyrd, all supra, as well as cases brought by baseball spectators and golf spectators.

In cases such as the one at bar, the very fact that the injury was sustained during the course of a game voluntarily engaged in by plaintiff and defendant materially affects the manner in which the actionability of the latter’s conduct is to be weighed. Acts or omissions which may constitute negligence off the playing field may not be such when taking place upon it.

“Negligence depends upon the surrounding circumstances, as well as the particular conduct involved, because an act or omission which would clearly be negligent in some circumstances might not be negligent in other circumstances or surroundings.” Zuber v. Clarkson Const. Co., 363 Mo. 352, 251 S.W.2d 52, 55[3] (1952).

“Whether a man’s acts in a particular case constitutes negligence must be judged by the concomitant circumstances and his environment must be taken into account.” Tharp v. Monsees, 327 S.W.2d 889, 893[3] (Mo. banc 1959). While negligence consists of a failure to use ordinary care to avoid injury to others, ordinary care is a relative term and its exercise requires precautions commensurate with the dangers to be reasonably anticipated under the circumstances. Stumpf v. Panhandle Eastern Pipeline Co., 354 Mo. 208, 189 S.W.2d 223, 223[12] (1945).

Accordingly, whether one player’s conduct, causing injury to another, constitutes actionable negligence hinges upon the facts of the individual case. Material factors include the specific game involved, the ages and physical attributes of the participants, their respective skills at the game and their knowledge of its rules and customs, their status as amateurs or professionals, the type of risks which inhere in the game and those which are outside the realm of reasonable anticipation, the presence or absence of protective uniforms or equipment, the degree of zest with which the game is being played, and doubtless others.

“Generally, the participants in an athletic event are held to have assumed the risks of injury normally associated with the sport . Players, coaches, managers, referees and others who, in one way or another, voluntarily participate must accept the risks to which their roles expose them. Of course, this is not to say that actionable negligence can never be committed on a playing field. Considering the skill of the players, the rules and nature of the particular game, and risks which normally attend it, a participant’s conduct may amount to such careless disregard for the safety of others as to create risks not fairly assumed. But it is nevertheless true that what the scorekeeper may record as an ‘error’ is not the equivalent, in law, of negligence.” McGee v. Board of Education of City of New York, 226 N.Y.S.2d 329, 331 (1962).

Whether or not the petition states a claim rests on the sufficiency of any or all of the four subparagraphs of paragraph 3 to plead negligence, the adequacy of the other portions of the pleading not being attacked. Scrutiny of those allegations must be conducted in light of familiar principles.

Rule 55.05 V.A.M.R. requires the petition to set forth “a short and plain statement of the facts” (emphasis added) showing that the plaintiff is entitled to relief. “All pleadings shall be so construed as to do substantial justice.” Rule 55.24. The aver-ments are to be given a liberal construction and the plaintiff is entitled to the benefit of inferences reasonably arising from the facts stated. Cady v. Hartford A. & I. Co., 439 S.W.2d 483, 485[1] (Mo.1969).

Defendant’s motion admits, for the purpose of the motion, all facts well pleaded in the petition and it must be construed “in a light favorable to [the] plaintiff.” McDonough v. Aylward, 500 S.W.2d 721, 722[1] (Mo.1973).

If the allegations invoke principles of substantive law which may entitle the pleader to relief, the petition is not to be dismissed. Laclede Gas Co. v. Hampton Speedway Co., 520 S.W.2d 625, 630[4] (Mo.App.1975); Kersey v. Harbin, 531 S.W.2d 76, 79[1, 3] (Mo.App.1975); Boyer v. Guidicy Marble, Terrazzo & Tile Co., 246 S.W.2d 742, 744[1] (Mo.1952).

Although Rule 55.05 requires a petition to contain a short and plain statement of the facts, Missouri appellate courts have demonstrated liberality in assessing the sufficiency of negligence petitions.

Certain words, when unsupported by pleaded facts to show their basis, have been branded as conclusions of the pleader rather than statements of fact, and they are not to be considered in determining whether a claim has been stated. The word “negligently” has not been so lightly ignored. When a petition specifies the act complained of “with sufficient certainty to advise the defendant of the charge he is to meet and then avers that the act was negligently done,” Kersey, supra, 531 S.W.2d at p. 79, the petition is sufficient. See also Maybach v. Falstaff Brewing Corp., 359 Mo. 446, 222 S.W.2d 87, 92 (1949); Zichler v. St. Louis Public Service Co., 332 Mo. 902, 59 S.W.2d 654, 657[6] (1933).

For cases upholding the sufficiency of a negligence petition containing only bare or skeletal allegations of negligence see State v. Haid, 328 Mo. 807, 41 S.W.2d 789 (1931); State v. Koerner, 181 S.W.2d 1004 (Mo.App.1944); Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601, 604 (1946); Holtz v. Daniel Hamm Drayage Co., 357 Mo. 538, 209 S.W.2d 883 (1948); Phillips v. Carroll, 379 S.W.2d 143 (Mo.App.1964); State ex rel. Birdsboro Corp. v. Kimberlin, 461 S.W.2d 292 (Mo.App.1970); Welch v. Thompson, 357 Mo. 703, 210 S.W.2d 79, 83[8] (1948). In Welch it is said: “A general allegation of negligence is good unless it is attacked for want of being sufficiently definite.” Although in some of these cases the sufficiency of the petition was not attacked until after verdict, Koerner points out that “a verdict will not cure a petition which wholly fails to state a cause of action.”

It is possible that the task of the trial court, and that of this court, would have been simplified if the defendant had filed a motion for a more definite statement, Rule 55.27(d), or if the plaintiff, after the trial court’s adverse ruling, had sought and obtained leave to amend, Rule 55.33. But neither was done.

Although the case may be a close one, this court has concluded that the trial court erred in holding the petition to be fatally defective. This court holds that paragraph 3(c) of the petition is an adequate assignment of negligence to withstand a motion to dismiss directed to its sufficiency.

It should be noted that paragraph 3(c) contains the muscular adverbs “negligently and carelessly,” and those words are accompanied by a description of the conduct complained of, “with sufficient certainty to advise the defendant of the charge he is to meet,” Kersey, supra. What evidence may be adduced in support of the adverbs is, at this juncture, academic. “In judging the sufficiency of a petition in this regard, we are not concerned with what the evidence may prove in the case.” Empiregas, Inc. of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657, 661[7] (Mo.1974).

This court, though conscious of the evi-dentiary difficulties confronting the plaintiff in a case such as this, has given the petition the liberal construction which the foregoing authorities require. Any doubt, if at all reasonable, with regard to the sufficiency of the petition, should be, and now is, resolved in favor of the plaintiff.

This conclusion renders it unnecessary for this court to consider the adequacy of paragraphs 3(a) or 3(b), neither of which contains the adverbial elixir. Nor is it necessary to decide the adequacy of paragraph 3(d) which, though containing the two adverbs, applies them, at least grammatically, to a violation of the rules rather than to the conduct described.

The judgment is reversed and the cause remanded with directions to the trial court to reinstate the petition.

It is so ordered.

HOGAN, J., concurs.

BILLINGS, C. J., dissents in separate dissenting opinion filed.

BILLINGS, Chief Judge

(dissenting).

I respectfully dissent.

In my view, no doubt influenced somewhat by permanent scars and broken bones acquired in yester-year on baseball and softball diamonds, in the absence of allegations of intentional wrongdoing by the defendant, and resultant injury to the plaintiff, the petition fails to state a cause of action against the defendant.

As the principal opinion observed, one may plead himself out of court. The collision of which plaintiff complains is inherent in baseball or softball. I would hold defendant’s alleged conduct was a risk which is obvious to a participant, foreseeable to a baserunner, not an extra-ordinary happening during the course of a game, and, simply a risk that is an incident to participation in a baseball or softball game.

      . “Basically, the fundamentals of softball are the same as those of baseball. Batting and fielding strategies are similar. But since the game is played on a much smaller area the action is much faster. . . [T]he rules of softball differ from those of baseball in that the playing field and diamond are smaller, the bat is shorter and lighter, the ball heavier and larger, and the game seven innings instead of nine. The chief difference in the pitching rules is that in softball the ball is delivered in an underhand motion to the batter with a follow-through of the hand and wrist past a straight line of the body before releasing the ball . . . ” En-cyclopaedia Britannica, Micropaedia, 15th Edition, Vol. IX, p. 323.

      . Compare Rule 8(a)(2), Federal Rules of Civil Procedure, which requires “a short and plain statement of the claim” showing that the pleader is entitled to relief. See Wright & Miller, Federal Practice & Procedure, Vol. 5, § 1249, p. 227. See also Form 9, Complaint for Negligence, Wright & Miller, Federal Practice & Procedure. Vol. 12, appendix A, p. 309, where the allegation “defendant negligently drove a motor vehicle against plaintiff who was then crossing [the named] highway,” coupled with allegations of causation and injury, is sufficient.

      . “Evil, improper, unlawful,” State ex rel. Aimonette v. C. & R. Heating and Serv. Co., 475 S.W.2d 409, 413[6] (Mo.App.1971); “Willful and malicious,” Pretsky v. S.W. Bell Tel. Co., 396 S.W.2d 566, 569[1] (Mo.1965); “Illegal, invalid, void, unlawful, unconstitutional, improper, arbitrary, and capricious,” State ex rel. State Tax Commission v. Briscoe, 451 S.W.2d 1, 5[9] (Mo. banc 1970); “Bad faith,” Western Robidoux P. & L. Co. v. Missouri Hwy. Com’n, 498 S.W.2d 745, 749[11] (Mo.1973).


source: Caselaw Access Project

author: NORWIN D. HOUSER, Special Judge.

license: Public Domain

text:
    The BRENTWOOD BANK, a corporation, et al., Respondents, v. O. S. RUDMAN, Appellant.
    No. 36722.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 29, 1976.
    Thomas K. Edelmann, St. Louis, for appellant.
    Bryan, Cave, McPheeters & McRoberts, Jerome S. Rubenstein, Andrew S. Love, Jr., St. Louis, for respondents.
   NORWIN D. HOUSER, Special Judge.

Appeal by O. S. Rudman from a judgment in an interpleader action determining the amount of rent due under a certain lease to be $500 per month, instead of $540.54 as claimed by appellant, and awarding $975 fees to the attorneys for the party bringing the interpleader action.

On July 19, 1956 O. S. Rudman and Max Jackoway, as Lessors, entered into a 99-year lease of a parcel of real estate in St. Louis County to Coronet Investment Company, at a monthly rental of $500. Notice of the lease was recorded July 1, 1960. On October 15, 1964 O. S. Rudman and wife executed a quitclaim deed of this property to Joveina Lopiparo, which was filed of record on October 17, 1964. Coronet’s interest in the leasehold was purchased by The Brentwood Bank on January 30, 1974 at a foreclosure sale of a deed of trust executed February 15, 1963 inter alia by Coronet, and the bank thereupon became a tenant under the lease. Rudman requested of the bank that it send rent payment checks to him, and that the payments be made in the sum of $540.54 monthly, instead of the $500 reserved in the lease, on the basis of a modification of the terms of the lease alleged by Rudman to have been agreed upon between Lessors and Coronet whereby Coronet granted the right to defer the first 18 payments due under the lease (totaling $9,000) and to pay the sum of $9,000 in equal monthly payments of $540.54 beginning on the 19th month and continuing through the 240th month of the lease. It does not appear whether the alleged deferment agreement was written or oral and the date of the agreement is not stated. If in writing there is no evidence that it was recorded.

On May 2, 1974 The Brentwood Bank filed this interpleader action against Rud-man and Lopiparo, praying for a declaration of the amount of rent due under the lease, and to be allowed to pay into the registry of the court the monthly rental payments, and for a determination whether Rudman or Lopiparo is entitled to receive the rent under the lease, and for an attorney’s fee. Joveina Goldberg (formerly Lo-piparo) filed an answer claiming she was entitled to the rent. Rudman filed an answer alleging that the deed to Lopiparo conveyed legal title only and she took legal title only as a straw party or nominee for Rudman; that all real and beneficial interest in the property was vested in Rudman, and that the monthly rent payments due were $540.54 by virtue of an amendment to the lease. Affidavits were filed. Rudman moved for summary judgment. On July 30, 1974 First Investment Corporation purchased the interest of The Brentwood Bank in the property and began making the required rental payments into the registry of the court.

The court found (1) that ownership of the property was vested in Rudman and that Lopiparo had no interest therein (she had executed a quitclaim deed back to Rudman on October 15, 1964, which had not been recorded), and (2) adjudged that the amount of the rent due on May 1, 1974, under the lease, and each month thereafter, is $500 a month, and awarded Bryan, Cave, McPheeters & McRoberts $975 attorneys fees.

Rudman has appealed, claiming first that the judgment entered is by nature and effect a summary judgment, and that there are unresolved issues of fact. We find no material issues of fact that require the taking of evidence. The cause was ripe for decision on the pleadings and affidavits.

Rudman’s second point is that The Brentwood Bank and its successor First Investment Corporation, as assignees of the leasehold estate, are liable under the lease for payment of rent to appellant Rudman and his co-lessor Jackoway, and that the liability for the balance of the first 240 months of the lease is in the amount of $540.54 per month. The liability of the bank and investment corporation to pay the proper amount of rent is not disputed, but is conceded. The dispute in this phase of the case involves solely the question whether the rent due is $500 or $540.54 per month. We affirm the judgment of the circuit court finding the proper amount to be $500 per month. The February 15, 1963 deed of trust, which included as grantors not only lessee Coronet Investment Company but also Rudman and Jackoway, the original lessors, conveyed not only the fee title but also the leasehold estate created by the 1956 lease, without any reference to an agreement between lessors and lessee modifying the terms of the lease. It provided, paragraph 30, that the lessee “will not in any manner * * * without the consent of the mortgagee modify or permit any modification of any of the terms of [the lease] * * The 1956 lease, Article XIX, provided: “This lease contains the entire agreement of the parties hereto with respect to the letting and hiring of the premises above described and this lease may not be amended, modified, released or discharged, in whole or in part, except by an instrument in writing signed by the parties hereto, their respective successors or assigns.” If a deferment agreement was entered into prior to the February 15, 1963 deed of trust, and if appellant did not disclose to the mortgagee the existence of such deferment agreement (of which disclosure there is no evidence) and the mortgagee accepted the leasehold estate under the apparently unmodified lease as part of the security for its debt (in the sum of $1,450,-000), appellant is estopped from asserting the previously unannounced agreement to its advantage and to the detriment of the mortgagee’s successors in interest. The bank and the investment corporation were entitled to rely on the public record which reflected only an unmodified lease. “One who places on record a deed or mortgage showing the nature of his interest in land is ordinarily estopped, as against one who relies on the record, to claim that his interest is other or greater than appears in the record.” 66 Am.Jur.2d Records and Recording Laws § 99. If such deferment agreement was entered into after the February 15, 1963 deed of trust was executed the bank and investment corporation are protected by Article XIX of the deed of trust; the mortgagee and its successors could not be bound by the alleged deferment agreement without their consent, for Article XIX provides that the lease may not be amended or modified, in whole or in part, except by an instrument in writing signed by the parties and their successors or assigns. No such writing has surfaced.

For these reasons the circuit court’s judgment with respect to the amount of monthly rent payments due under the lease ($500) is correct.

With respect to the issue of fees allowed attorneys for the bank and investment corporation: Appellant concedes that at the time of the institution of this inter-pleader action the bank was a disinterested stakeholder. As long as it occupied that status it was entitled to attorneys’ fees as part of its costs. Grooms v. Mullett, 133 Mo.App. 477, 113 S.W. 683 (1908). Appellant contends that on August 22, 1974 the bank lost its status as a disinterested stakeholder, and became interested in the outcome of the litigation, i. e., in attempting to secure a declaration that its monthly rental obligation was only $500 (not $540.54); that the bank and investment corporation acted to protect their monetary interests by filing a memorandum of law and an affidavit opposing appellant’s motion for summary judgment, and that insofar as their efforts were spent in their own personal interest, after August 22,1974, they may not recover attorneys’ fees, without the benefit of a contract or statute providing therefor. Appellant’s contentions are sustained. It is not clear whether the court’s award of fees was limited to payment for services rendered in the role of the bank as a disinterested stakeholder, or whether the award was intended to cover all services rendered by the attorneys for the bank, both as stakeholder and as interested litigant. It is impossible to know, on this record. Because of this uncertainty the judgment, insofar as the award of attorneys’ fees is concerned, must be reversed and the cause remanded. See New York Times Co. v. Sullivan, 376 U.S. 254, 284, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Accordingly, the award of $975 attorneys’ fees is set aside and the cause is remanded for a hearing to determine the items of services performed by plaintiffs' attorneys for the bank as disinterested stakeholder with directions to make an award in their behalf for the reasonable value thereof.

Affirmed in part; reversed in part, and remanded for further proceedings consistent with this opinion.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


text:
    Charles MITCHELL, Appellant, v. John J. QUINN, Excise Commissioner of the City of St. Louis, Respondent.
    No. 36319.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 29, 1976.
    Howard & Richardson, St. Louis, for appellant.
    Jack L. Koehr, City Counselor, John R. O’Malley, Asst. City Counselor, James J. Gallagher, Assoc. City Counselor, St. Louis, for respondent.
   NORWIN D. HOUSER, Special Judge.

Appeal from the judgment of the Circuit Court of the City of St. Louis affirming the ruling of the Excise Commissioner of that city suspending for seven days the liquor license of Charles E. Mitchell, owner of Mitchell’s Package Liquor Store, for violation of § 372.290, Rev.Code, City of St. Louis, 1960, as amended 1962 (Ordinance 51376), providing that “No person licensed for the sale at retail or consumption of intoxicating liquor or non-intoxicating beer, his agent, servant or employee shall sell, give away, dispose of, or suffer, or permit the same to be done on or about his licensed premises, any intoxicating liquor, non-intoxicating beer, or any beverage having an alcoholic content in excess of one-half of one percent alcohol by volume, to any minor under the age of 21. * * * ”

The stipulated facts: John Leroy Robinson, age 20, entered the licensed premises at 4674 Easton Avenue and attempted to buy a one-half pint bottle of gin. Mrs. Mitchell, wife of licensee, acting as clerk at the counter, asked Robinson for “identification of age.” After replying that he had none Robinson asked Mrs. Mitchell if it would be all right if someone else bought the gin for him. She replied that it would be all right. Robinson left the premises and reentered the premises accompanied by a young adult named Howard Earl Reed, to whom Robinson had given money for the purchase of liquor for Robinson. Reed went to the counter. The clerk at the counter this time was Joyce Wells. Reed asked for a one-half pint bottle of gin. Joyce Wells placed the gin on the counter. Reed placed two one-dollar bills on the counter. Joyce Wells took the two bills, placed them in the cash register and placed some change on the counter. Robinson picked up the bottle of gin and the change. Both young men left the premises. Robinson was arrested outside the premises, and the bottle of gin was seized from him. It contained ethyl alcohol with an alcoholic content of 37.8% by weight.

Appellant claims there was a failure to meet the burden of proving by competent and substantial evidence that appellant’s employee sold alcohol to a minor in violation of the city code. Appellant argues there was no actual or permitted sale or other disposition of intoxicating liquor to a minor; that the sale was made to Howard Reed, a person of legal age; that no sale to the minor John Robinson was either commenced or completed; that the minor’s taking of the bottle into his possession “as the two exited the premises” is insufficient to hold appellant culpable under the ordinance; that neither the licensee nor his employee sold the liquor to the adult with the knowledge or intention that it was a sale for the minor, and there is no evidence that he or she should have known the purpose and was aware of Robinson’s minority. Appellant cites City of Madison v. Pendleton, 246 Wis. 456, 17 N.W.2d 580 (1945), and Broadway Enterprises, Inc. v. Liquor Control Comm., 17 Ohio App.2d 35, 244 N.E.2d 516 (1968), for the rule that a sale to an adult accompanied by a minor is not a sale to the minor, and Salvia’s Bar, Inc. v. Pennsylvania Liquor Control Bd., 211 Pa.Super. 275, 236 A.2d 839 (1967), for the rule that defendant must know that the purpose of the sale is on behalf of the minor.

No Missouri case on purchase by an adult as agent for a minor has been cited or found. The rule properly to be invoked in such case is that stated in Black on Intoxicating Liquors, § 422: “If a minor procures an adult to go to a saloon and purchase liquor for him, with his money which he gives him for that purpose, and the minor is not present at the purchase, and the adult does not disclose his agency, and the seller does not know, and has no reason to suspect, that the adult is acting as agent for a minor, he cannot be convicted of making a sale to the minor. But if the seller knows the facts, he is guilty. For in that case, the minor stands disclosed as the principal in the transaction, and the sale is regarded, on familiar principles, as made to him, though through the intervention of an agent. Thus, where, at the suggestion of the seller, a by-stander is induced by a minor to purchase liquor for him, and with his money, the effect is the same as if the sale had been made directly to the minor.”

There was substantial and competent evidence for the excise commissioner to conclude that there was a sale in violation of the ordinance; that through appellant’s agent, Mrs. Mitchell, appellant must be held to have known that John Robinson was a minor, and that through her he must be held to have suffered and permitted an illegal sale to a minor to be made on his premises through the agency of an adult; that through his employee Joyce Wells appellant must be held to have made a sale to Robinson through the agency and intervention of an adult, Howard Reed, who used Robinson’s money to purchase the liquor; that the transaction took place in the presence of Robinson, who personally took possession of the bottle of gin when the clerk set it out on the counter, and personally picked up the change, thus disclosing that he was a principal in the transaction. In this connection see Liles v. State, 88 Ala. 139, 7 So. 196 (1890); Starling v. State, 34 Tex.Cr.App. 295, 30 S.W. 445 (1895).

Appellant complains that the record fails to reflect that appellant himself “sold the liquor to the adult with the knowledge or intention that the purpose of the sale was for the minor, or that he should have known the purpose and was aware of the juvenile’s minority.” This complaint is without merit for two reasons: First, the ordinance does not expressly or by implication make ignorance of the minority or honest belief of majority a defense, and therefore such ignorance or mistake is no defense; intent to violate the ordinance is not an essential ingredient of the offense. State v. Bruder, 35 Mo.App. 475 (1889); State v. Field, 139 Mo.App. 20, 119 S.W. 499 (1909); State v. Feldman, 150 Mo.App. 120, 129 S.W. 998 (1910); 45 Am.Jur.2d Intoxicating Liquors § 271, fn. 15, p. 674; Hershorn v. People, 108 Colo. 43, 113 P.2d 680, 139 A.L.R. 297 (1941); Anno. 12 A.L.R.3d 991, 995, 999. Second, since the evidence supports a finding of a violation of the ordinance occurring on the licensed premises with the knowledge of appellant’s wife and employee, their knowledge is imputed to appellant as licensee and it was not necessary that actual knowledge by licensee be proved to substantiate the charge that he “suffered or permitted” the violation to occur. When the unlawful act is performed by, or with the knowledge of, licensee’s agents, servants or employees, licensee may be held liable even though he has no personal knowledge of the activities constituting the violation. Clown’s Den, Inc. v. Canjar, 33 Colo.App. 212, 518 P.2d 957 (1973); Romero v. Liquor & Beer Licens. Bd. of City of Pueblo, 540 P.2d 1152 (Colo.App.1975); dissenting opinion of Skeel, P. J. in State v. Miclau, 104 Ohio App. 347, 140 N.E.2d 596, 613 (1957). In Clown’s Den, Inc. the court announced the following rule, which we approve, 518 P.2d 1. c. 959: “The holder of a license for the sale of alcoholic beverages has an affirmative responsibility to see that his business is not conducted by his employees (or by his employees in concert with other persons) in violation of the law. See Oxman v. Department of Alcoholic Beverage Control, 153 Cal.App.2d 740, 315 P.2d 484 (1957). Therefore, since the evidence clearly supports a finding that activities in violation of the regulation had occurred with, at least, the implicit knowledge of the bartender, which knowledge is imputed to [the licensee], it was not necessary that actual knowledge by [licensee] be pleaded or proved to substantiate a charge that [licensee] had ‘permitted’ the prohibited activity.”

Upon the whole record the excise commissioner reasonably could have made the findings reached and result stated upon a consideration of the evidence before him. His findings, conclusion and order suspending appellant’s license are supported by competent and substantial evidence. Accordingly, the judgment of the circuit court affirming the ruling of the excise commissioner is affirmed; the seven-day suspension is ordered effective 12:01 A.M., August 16,1976, and a certified copy of this opinion is ordered delivered to the excise commissioner.

SMITH, C. J. and ALDEN A. STOCK-ARD, Special Judge, concur.

      . See the recent case of May Dept. Stores v. Sup’r of Liquor Control, 530 S.W.2d 460 (Mo.App.1975), in which the contention was made that a sale to a minor was a sale to a minor as the agent of his brother, an adult.


author: RENDLEN, Judge.

text:
    Edward T. WRIGHT, Plaintiff-Respondent, v. Charlotte M. WRIGHT, Defendant-Appellant.
    No. 36743.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 29, 1976.
    Ziercher, Hocker, Tzinberg, Human & Mi-chenfelder, Robert C. Jones, Clayton, for appellant.
    Paul Fitzsimmons, Clayton, Edward T. Wright, Sr., Edward T. Wright, Jr., St. Louis, for respondent.
   RENDLEN, Judge.

Defendant appeals from the judgment awarding plaintiff $50,000 in fees for services rendered as her attorney plus interest in the amount of $6,000.

Plaintiff had served as defendant’s attorney during 1972 in an action for divorce filed by defendant’s husband. In that suit an agreement for division of property was reached and stipulation settlement executed October 3, 1972. A decree of divorce was entered that date. By that settlement defendant received property and cash totaling $500,000. Earlier plaintiff and defendant had orally agreed to an attorney’s fee of $50,000 but defendant, acting on advice of her son, refused to pay and terminated plaintiff’s employment as her attorney.

The case at bar was brought in two counts, the first in contract and the second in quantum meruit. At trial plaintiff testified the claimed fee was justified in light of his twenty-six years’ professional experience, expertise in economics, the sums involved and the difficulty of the case. Plaintiff further testified that time spent is not the best basis for determining charges in domestic relations matters and though he had not kept time records in this case, by reconstructing an account from the files he estimated 435 hours were devoted to the case. These hours included negotiations with defendant’s husband and meetings with defendant and her husband’s parents, first seeking reconciliation and later working toward a property settlement adequate for his client’s needs. When he accepted defendant as a client, plaintiff had been general counsel to his brother’s company, a position which he resigned to represent defendant, losing thereby annual fees of approximately $1,000 during the next five or six years. Expert witnesses testified that the agreed fee was reasonable and $100 per hour a reasonable hourly charge for an attorney of plaintiff’s experience.

Defendant admitted the services were rendered and that she owed plaintiff a reasonable fee. Further that when she agreed to the $50,000 fee she believed it reasonable and only later when advised by her son and friends did she regard it excessive. Her husband’s attorney in the divorce proceeding, testifying on defendant’s behalf, stated he charged $35 per hour and his total bill to defendant’s husband was $1,500.10. Defendant’s expert witness testified the reasonable charge for domestic relations cases in 1972 was $50 per hour. At the close of the evidence plaintiff dismissed Count I, proceeding only on Count II for the reasonable value of services rendered.

From the evidence it appears the jury’s verdict was indeed generous; however, as defendant has not challenged the sufficiency of the evidence to support the verdict, we do not review that issue.

Defendant’s assignments of error relate to objections sustained during defense counsel’s closing argument. At the outset we are mindful the “trial court has wide discretion in the field of argument and in the absence of clear abuse of its discretion an appellate court is reluctant to find error.” Best v. Fred Weber Const. Co., 525 S.W.2d 102, 107[9] (Mo.App.1975); Beesley v. Howe, 478 S.W.2d 649, 652-3[4] (Mo.1972); S. G. Payne & Co. v. Nowak, 465 S.W.2d 17, 20[6] (Mo.App.1971).

Defendant first contends the trial court erred restricting defendant’s argument that matters relating to the contract for respondent’s fees were no longer in the case. This contention is without merit. It has long been the rule in Missouri that:

[Wjhere, ... an express contract has been fully performed on plaintiff’s part, and nothing remains to be done under it but the payment of money by defendant, which is nothing more than the law would imply, plaintiff may declare specially on the contract, or generally in indebitatus assumpsit as for the quantum meruit, at his election. The plaintiff does not repudiate the contract nor seek to avoid it in indebitatus as-sumpsit as for the quantum meruit, but offers the contract in evidence and his proof of compliance with it to sustain his case. The agreed price, if there is an agreed price, becomes prima facie evidence of the reasonable value of the service. But plaintiff may not recover more than the agreed price. (Emphasis added.)

Julian v. Kiefer, 382 S.W.2d 723, 727-8[4, 5] (Mo.App.1964); State ex rel. Francesconi v. Aetna Casualty & Surety Co., 350 S.W.2d 418, 423[7] (Mo.App.1961). The jury was entitled to consider the contract price as evidence, though not conclusive on the issue of the reasonable value of the services rendered. See Cavic v. Missouri Research Laboratories, Inc., 416 S.W.2d 6, 9[3] (Mo.App.1967). Appellant’s closing argument was a misstatement of the law constituting a misdirection of the jury and plaintiff’s objection was properly sustained.

Defendant next contends the court erroneously sustained plaintiff’s objection to defendant’s statement in final argument that “Ed Wright had a contingent fee of what, 10% and that violated the canon of ethics —” Defendant argues that if the jury is entitled to consider the contract as evidence in assessing the value of the services rendered, they should also be permitted to consider whether it was ethical for the plaintiff to procure such a contract.

There was no direct evidence showing the employment agreement was a contingent fee contract. On the contrary, the evidence showed plaintiff insisting upon and defendant agreeing to a fixed fee of $50,000. Defendant points to the definition of contingent fee in Black’s Law Dictionary as “. . .a fee stipulated to be paid to an attorney for his services in conducting a suit or other forensic proceeding only in case he wins it,” (emphasis added) as the basis for asserting that the fee contract in this case was a contingent fee, However, both respondent and appellant testified that there was no stipulation that a fee would be paid only if a successful result were obtained. Since the $50,000 fee equals 10% of the $500,000 property settlement, the jury might infer that this was more than coincidence and such an inference would be arguable. S. G. Payne & Co. v. Nowak, supra at 20[5]. However, appellant’s argument spoke not of inference but stated as though it were established fact that the agreement was a contingent fee contract. The trial court may in the exercise of its discretion, as it did here, limit such argument. It should be noted that the court did not foreclose all argument in this area but rather sustained defendant’s objection to the specific statement shown. In light of the evidence and the limited scope of the trial court’s ruling, we cannot say the court abused its discretion. The judgment is affirmed.

WEIER, P. J., and McMILLIAN, J., concur.

      . Defendant was the spouse of Charles Wright who is the brother of Edward Wright, plaintiff in the case at bar.

      . The disputed portion of argument and the court’s ruling were as follows:
      I am forced to say Mr. Wright didn’t quite play fair with you in his closing argument. He stood here and said, we have abandoned the argument Charlotte Wright promised to pay me $50,000. I have decided to go on Count II, wherein Judge Campbell said to you, if you find the issues in favor of the Plaintiff, then, you must award Plaintiff that is Mr. Wright — the reasonable value of the legal services furnished, with interest, from October 3, 1972. And then, Mr. Wright went into a long recitation of what Charlotte Wright said and what she did, about how she agreed to pay him $50,000. This is not in the lawsuit any more. (Emphasis added.)
      Mr. Wright: That is improper argument.
      Mr. Jones: He brought it up, Your Honor. The Court: I will sustain the objection to the form of the argument.


author: STEWART, Judge.

text:
    John HALL, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36220.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 29, 1976.
    Herbert A. Hasten, Jr., Huck, Hasten & LaBeaume, St. Louis, for movant-appellant.

      John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Brendan Ryan, Circuit Atty., St. Louis, for respondent.
   STEWART, Judge.

On May 21, 1968, John Hall, defendant, entered a plea of guilty to Robbery in the First Degree by means of a dangerous and deadly weapon. He was sentenced to life imprisonment.

On December 16, 1969, defendant filed a Motion to Vacate Sentence under Rule 27.-26. This motion was denied and upon appeal the Supreme Court affirmed the judgment of the trial court. Hall v. State, 470 S.W.2d 473 (Mo.1971).

The present proceeding arises from a successive motion under Rule 27.26 which was denied by the trial court on March 18,1974. The transcript before us reveals that the notice of appeal was filed on May 10, 1974, 23 days after the judgment became final. Rule 27.26(a) states: “The procedure before the trial court and on appeal is governed by the Rules of Civil Procedure insofar as applicable.”

Rule 81.04 which is applicable to this case provides: “No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final.”

The notice of appeal was not timely filed. Defendant did not obtain an order to file his notice of appeal out of time in accordance with Rule 28.07. This court acquired no jurisdiction. State v. Hayes, 394 S.W.2d 346 (Mo.1965).

The appeal is dismissed.

CLEMENS, P. J., and DOWD, J., concur.


text:
    L. S., Plaintiff-Respondent, v. L. M. S., Defendant-Appellant.
    No. 36942.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 29, 1976.

      Dulin, King, Parres & McDowell, St. Louis, for defendant-appellant.
    Dallas Cox, Sr., Cox, Moffitt & Cox, St. Louis, for plaintiff-respondent.
   STEWART, Judge.

L.S., plaintiff, brought an action for Declaratory Judgment against his former wife, L.M.S., and her daughter, D.M.S., asking the court to declare that D.M.S. is not the child of plaintiff. In a court-tried case judgment was entered declaring that D.M.S. was not plaintiff’s child. Defendant L.M.S. appeals. We affirm.

We shall hereafter refer to L.S. as plaintiff and to L.M.S., the mother, as defendant.

In this court-tried case the parties did not request and the court did not enter findings of fact or conclusions of law. The defendant does not challenge the sufficiency of the evidence to support the judgment of the trial court. Defendant seeks only a new trial based upon the alleged erroneous admission of evidence proffered by plaintiff and the rejection of evidence proffered by defendant.

In clarifying appellate review in a court-tried case under Rule 73.01 the Supreme Court in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), said:

“ . . . the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong. The use of the words de novo and clearly erroneous is no longer appropriate in appellate review of cases under Rule 73.01.”

We undertake the above review only in respect to the specific matters urged by appellant. We may not become the advocate of one of the parties and search the record in an effort to find a theory and facts to support it, “to establish a general assertion that the trial court reached the wrong result.” Schlanger v. Simon, 339 S.W.2d 825, 828 (Mo.1960); Buxton v. Horn, 452 S.W.2d 250 (Mo.App.1970).

Defendant’s contentions are that the court erred: (1) in admitting the deposition testimony of defendant and the testimony of defendant’s former attorney concerning a statement she made to the attorney, in violation of the attorney-client privilege; (2) in admitting secondary evidence of a letter written by defendant to plaintiff in which defendant was said to have admitted that she was pregnant by one other than plaintiff, because the letter had been voluntarily destroyed by plaintiff; (3) in failing to permit defendant, on re-direct examination, to explain answers to a question propounded to her on cross-examination.

Error in the admission and rejection of evidence in a court-tried case does not have the same significance accorded such error in a jury trial. Such error in the court-tried case is not cause for reversal because “ . . . the appellate court considers such evidence in the record as deemed admissible, and excludes from consideration evidence improperly admitted and reaches its judgment on the competent evidence offered without regard to the trial chancellor’s ruling.” Linders v. Linders, 356 Mo. 852, 204 S.W.2d 229, 234 (Mo.1947); Martin v. Norton, 497 S.W.2d 164, 169 (Mo.1973).

The defendant testified upon her deposition, without objection, that she told a lawyer whom she had consulted that she was pregnant by one R.M. The lawyer was called as a witness and over defendant’s objection was required to testify to the admission made to him by defendant. Defendant also objected to the reading of that portion of her deposition respecting this admission. Defendant contended that the conversation was within the attorney-client privilege which had not been waived by her deposition testimony. Defendant cites Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481 (Mo.1948), a personal injury case involving the physician-patient privilege. Hemminghaus was overruled, insofar as the physician-patient privilege is concerned in those actions in which plaintiff has put her physical condition into issue. State ex rel. McNutt v. Keet, 432 S.W.2d 597 (Mo. banc 1968). While we have doubts as to the soundness of the rule enunciated in Hemminghaus, we do not feel that this is the proper case for an extended discussion. Without specifically ruling the point we shall ignore this evidence in our review of the case.

Defendant next contends that the court erred in permitting plaintiff and others to give oral testimony of the contents of a letter which she sent to plaintiff, and which had been destroyed by plaintiff.

It is admitted that defendant had written a letter to plaintiff from Cleveland, Ohio, shortly before the baby was born. Plaintiff testified that he destroyed the letter because defendant in the letter asked him to do so because she did not want their son to see the letter. The letter was destroyed before defendant accused plaintiff of being the father of D.M.S. Plaintiff testified that in the letter defendant had written that she was pregnant by R.M.

The question of the admissibility of secondary evidence of a document which has been destroyed by the party seeking to introduce it rests within the sound discretion of the trial court. The fact that a party has voluntarily destroyed the document does not of itself preclude him from producing secondary evidence of its contents. The court must look to all the circumstances surrounding the destruction to determine the good faith of the party. Stephan v. Metzger, 95 Mo.App. 609, 69 S.W. 625 (1902). In this case it is evidence that the court gave credit to plaintiff’s explanation for the destruction of the letter and that it was destroyed before the controversy between the parties arose. We find no abuse of discretion on the part of the trial court in the admission of this evidence.

Defendant’s contention that she was not permitted, on re-direct examination, to explain an answer that she had given on cross-examination need not be considered. The question involved the conversation which defendant had with the lawyer she had consulted before the baby was born. We are excluding all testimony of that nature from our consideration.

We have carefully reviewed the evidence in this ease. We state the facts briefly. An exhaustive statement of the facts would be of no precedential value.

Plaintiff and defendant had been married since December 23, 1950, and had one son, D.S., who was born March 30, 1957. The child, D.M.S., was born in Cleveland, Ohio, on November 23,1968. Medical records disclosed an interuterine pregnancy of 266 days. The name of a father was not put on the birth certificate. Plaintiff and defendant had been divorced on February 13,1968. Defendant testified that she and plaintiff had intercourse which she described as “rape” on February 11,1968. She said that she had taken some sleeping pills that night. Plaintiff testified that the last time they had intercourse was in November of 1967.

Defendant admitted having told plaintiff and their son that R.M. was the father of D.M.S. She advised them that R.M. had raped her on the occasion of the conception of the child. She also admitted telling Sister Jean, the superior of the home where she stayed when the child was bom, that R.M. was the father. Defendant’s brother-in-law, her sister’s husband, testified that she also told him that R.M. was the father.

Defendant met R.M. in October of 1967, shortly before the divorce action was filed. She admitted to having had intercourse with R.M. on at least three occasions. The last occasion was about March 16, 1968. She characterized this occasion as “rape.”

Viewing the admissible evidence as a whole and giving due regard to the opportunity of the trial court to have judged the credibility of the witnesses, there was sufficient substantial evidence to support the judgment of the trial court. We further find that the judgment is not against the weight of the evidence. Murphy v. Carron, supra.

The judgment of the trial court is affirmed.

CLEMENS, P. J., and DOWD, J., concur.

      . Originally the prosecuting attorney was joined in this action as a defendant. Plaintiff sought to enjoin the prosecution of a non-support action in the magistrate court. Plaintiff dismissed as to the prosecuting attorney.

      . Rule 73.01 — subdivision 3(b).


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Curtis Lee TIPPETT, Defendant-Appellant.
    No. 36811.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 29, 1976.
    Daniel P. Reardon, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, Richard G. Callahan, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant was convicted for illegal possession of heroin. The only issue on appeal is whether the trial leading to his conviction placed defendant twice in jeopardy in violation of his constitutional guarantees. We find defendant’s right against double jeopardy was not violated, and we affirm the judgment.

Defendant’s charge of double jeopardy is a result of the disqualification of a juror and declaration of mistrial by the trial court in the first trial of defendant for the illegal possession of heroin. In the first trial, one of the jurors advised the court that during the trial she had become aware that she had known the defendant and that her children had several years previously been friends of the defendant. On examination by the court, the prosecutor, and defendant’s counsel, the juror stated that because she had known the defendant and his family that she “would not want to be committed. I would not want to say whether he was guilty or not guilty. I would not want that on my conscience.” The juror also expressly stated that she would be hesitant to return a verdict of guilty because of fear of something happening to her if she found defendant guilty, although she indicated that she would not be able to find the defendant not guilty either. The defendant refused to accept less than twelve jurors for his trial, and defendant’s counsel stated that “I had better ask for a mistrial until we can solve all the problems.” However, the trial court on its own motion declared a mistrial based on the statements of the juror and issued instructions for a new panel of veniremen. On the same day of the mistrial, a new trial was commenced resulting in a guilty verdict against defendant. Prior to the commencement of the second trial, defendant’s counsel moved for dismissal of the information against defendant, raising the double jeopardy issue. It is from the trial court’s denial of the motion to dismiss that defendant has appealed.

A defendant’s protection against being put twice in jeopardy for the same offense is guaranteed under the Fifth Amendment of the United States Constitution and is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707, 716 (1969); State v. Aguilar, 478 S.W.2d 351, 353 (Mo.1972). The protection against double jeopardy represents a “policy of finality for the defendant’s benefit.” United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543, 553 (1971); State v. Aguilar, supra at 354. However, “[t]he double jeopardy clause does not guarantee a defendant that in all circumstances the government will be prepared to vindicate the social interest in law enforcement through the vehicle of a single proceeding for a given offense.” State v. Aguilar, supra at 354. The Supreme Court of the United States has consistently recognized that “a defendant’s valued right to have his trial completed by a particular tribunal must in some circumstances be subordinated to the public’s interest in fair trials designed to end in just judgments.” United States v. Jorn, supra, quoting from Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974, 978 (1949). We cannot indite a precise or rigid formula for determining when a jury may be discharged and a new trial ordered without a defendant’s consent and without running afoul of the double jeopardy rule. United States v. Jorn, supra, 400 U.S. at 480, 91 S.Ct. 547; Wade v. Hunter, supra, 336 U.S. at 690, 69 S.Ct. 834. But the flexible standard that has been applied since 1824 has been that demonstrated as “manifest necessity”:

“[I]n all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere.” United States v. Perez, 22 U.S. (9 Wheaton) 579, 6 L.Ed. 165 (1824).

See United States v. Dinitz, - U.S. -, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976); United States v. Jorn, supra, 400 U.S. 470, 481, 91 S.Ct. 547, 555, 27 L.Ed.2d 545, 554; Wade v. Hunter, supra, 336 U.S. 684, 690, 69 S.Ct. 834, 837, 93 L.Ed. 974, 979; Thompson v. United States, 155 U.S. 271, 274, 15 S.Ct. 73, 74, 39 L.Ed. 146, 149 (1894); State v. Aguilar, supra at 355.

It has been established that a circumstance where it is appropriate to order a new trial is when the court learns that a member of the jury might be biased against the government, Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891), or the defendant. Thompson v. United States, supra. Accord, Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100, 102 (1963); Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974, 978 (1949); Anno., 6 L.Ed.2d 1510, 1516-1517 (1961). The case before us fits into the foregoing cited cases, in that it was discovered, after jeopardy had attached, that a juror had known the family of the accused and therefore did not want to serve as a juror. But the juror did not express a particular bias in favor of one party, for although the juror stated that she would be hesitant to find defendant guilty, she also indicated that it would be “on her conscience” to find him not guilty. Yet, she related that her hesitance stemmed from fear, and we presume that she was afraid of retaliation in the event that defendant was found guilty. Under the circumstances, we believe that the trial judge acted wisely and properly in declaring a mistrial on his own motion.

Sections 546.10Q-.150, RSMo 1969 list a few narrow grounds for disqualifying jurors. However, these statutory disqualifications are not exclusive; to be a competent juror it is necessary to be disinterested and free from bias or prejudice. State v. DeClue, 400 S.W.2d 50, 56 (Mo.1966); State v. Holliman, 529 S.W.2d 932, 941 (Mo.App.1975), and concurring opinion of Simeone, J., at p. 943.

There are three factors to be considered in determining prejudice on the part of a prospective juror: 1) how well the juror knew the person recognized; 2) whether the juror gave an intentionally inaccurate answer on voir dire; and 3) the juror’s own statement as to whether she would be influenced. State v. Armstrong, 445 S.W.2d 367, 368 (Mo.1969); State v. Mullen, 528 S.W.2d 517, 521 (Mo.App.1975). Here, the juror’s association with defendant was very tenuous; she never gave an inaccurate answer, since the question of her association with defendant was not raised on voir dire; and she acknowledged her acquaintance with defendant as soon as she realized it. But the third factor as to the juror’s bias is determinative of this case. The juror stated she could not find defendant guilty and was even uncertain about finding him innocent. She simply was not capable of acting as a disinterested juror.

The trial court has wide discretion in determining the qualifications of a juror. State v. Johnson, 534 S.W.2d 844, 846 (Mo.App.1976); State v. Murphy, 533 S.W.2d 716, 717 (Mo.App.1976); State v. Hicks, 530 S.W.2d 396, 398 (Mo.App.1975); State v. Brauch, 529 S.W.2d 926, 931 (Mo.App.1975). Under the circumstances, we believe the trial court exercised sound discretion in finding that the juror here was not a competent juror. And, having found that one of the jurors was not qualified, there was the requisite “manifest necessity” to discharge the jury and order a retrial upon defendant’s refusal to proceed with less than twelve jurors. Therefore, there can be no plea of former jeopardy.

We believe that our decision is in harmony with the rationale of the Double Jeopardy Clause. The underlying policy “is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” United States v. Jorn, supra, 400 U.S. at 479, 91 S.Ct. at 554, quoting from Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957). See United States v. Dinitz, supra, 96 S.Ct. at 1080. However, the evil giving rise to the curative Double Jeopardy Clause does not exist here.

It was within the sound discretion of the trial court guided by the polestar of “manifest necessity” to determine whether a mistrial should be declared and the jury discharged in a case of this nature. United States v. Dinitz, supra; United States v. Jorn, supra; United States v. Perez, supra; State v. Aguilar, supra. Under the circumstances of this case, a manifest necessity existed for discharging the jury, and no violation of the Double Jeopardy Clause occurred as a result of the trial ending in defendant’s conviction.

The judgment is affirmed.

SIMEONE, P. J. and RENDLEN, J., concur.

      . “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

      . Art. 1, § 19, Constitution of Missouri provides:
      “[N]or shall any person be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury.”

      . Jeopardy attaches when a person is placed on trial and a jury is sworn to try the case. State v. Miller, 331 Mo. 675, 56 S.W.2d 92, 95 (1932); State v. Keating, 223 Mo. 86, 122 S.W. 699, 701 (Mo.1909).

      . Compare State v. McGee, 447 S.W.2d 270, 273 (Mo. banc 1969).

      . In view of the basis for the decision reached, we need not deal with the State’s contention that the defendant consented to the mistrial.


author: McMILLIAN, Judge.

text:
    Jerry Dee WILLIAMS, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.
    No. 37213.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 29, 1976.
    Application to Transfer Denied Oct. 12, 1976.

      Kevin M. O’Keefe, St. Louis, for plaintiff-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for defendant-respondent.
   McMILLIAN, Judge.

Appellant, Jerry Dee Williams, appeals from an order denying his Rule 27.26 motion to vacate his judgments and sentences.

Appellant claims that the court’s findings (1)that he was advised of the consequences of his pleas of guilty, and (2) that he, in fact, was guilty of the offenses charged, were clearly erroneous.

On July 28, 1971, defendant and two others entered the home of Mr. and Mrs. Joseph Anderson and assaulted both of them. As a result of the assaults, Mr. Anderson died. The police arrested appellant on August 4, 1971, and the next day made a videotape of appellant’s confession. The state charged appellant with murder in the first degree (Count I) and assault with intent to kill with malice (Count II). While being transferred from jail to Judge Tillman’s court on February 1, 1972, for trial, appellant and his co-defendant escaped from the custody of the sheriff. Within a few minutes both were recaptured outside the courthouse. Thereafter appellant was returned to court and entered a plea of guilty to both counts.

At this hearing appellant and his co-defendant testified that, after their capture, four or five deputies beat them, causing head injuries to each of them. At the time of the beating, both said their hands were handcuffed behind their backs and the handcuffs, which were extremely tight, caused additional pain.

Pursuant to Rule 25.04, and before he accepted appellant’s guilty pleas, Judge Tillman held a lengthy (16 typewritten 8V2 X 11 pages) hearing to determine whether appellant’s plea of guilty was made voluntarily and with an understanding of the nature of the charges. By implication, Rule 25.04 requires that an accused be advised of the consequences of his plea, including the punishment range. State v. Conner, 500 S.W.2d 300, 303 (Mo.App.1973).

Even a cursory reading of Judge Tillman’s record of the acceptance of appellant’s pleas of guilty shows beyond a doubt that appellant’s pleas were voluntarily made and that he was effectively represented by counsel.

Appellant admitted at the Rule 27.26 hearing before Judge Geary that he discussed the range of punishment with his attorneys and that he knew that death was a possibility on one charge and the punishment ranged from five (5) years to life on the other; and that as a result of his guilty plea he would get life. Consequently, even though Judge Tillman did not inform defendant as to the range of punishment, Judge Geary quite properly found that defendant had knowledge of the range of punishment prior to his pleas of guilty before Judge Tillman. In Conner, the court held although defendant was not advised by the trial court as to the range of punishment, defendant was not entitled to withdraw a plea of guilty since the evidence at the Rule 27.26 hearing showed defendant had knowledge of the punishment range.

The record supports completely the findings of Judge Geary that Judge Tillman advised appellant of the consequences of his pleas of guilty. Not only did the prosecutor make a statement of facts as to his evidence, but also appellant admitted that his pleas were neither forced, coerced, nor made as a result of any threats or promises. Appellant also acknowledged that he was waiving his constitutional rights to have a speedy trial before a jury, to call witnesses on his own behalf, and to cross-examine the state’s witnesses, as well as the presumption of innocence. Judge Tillman also developed that defendant knew he was to get a life sentence on the murder charge, that said sentence was to run concurrently with a ten (10) year sentence given by another court, and that the life sentence for the assault charge was to run “consecutively with the sentence imposed in Count I.”

While it is true that at the guilty plea hearing appellant expressed some equivocation about his involvement, nonetheless appellant admitted that the narrative of the event given by the prosecutor was substantially correct; that he was pleading guilty “because, I believe I think I am guilty” and that he made the videotaped confession which admitted he was at the scene, had been drinking, went into the old couple’s home to take some money, and took a gun and watch.

Appellant’s claim that his pleas were invalid because his answers were equivocal, is rejected. A trial judge is not bound by appellant’s answers. Williams v. State, 530 S.W.2d 740, 742 (Mo.App.1975) and Campbell v. State, 515 S.W.2d 453, 455 (Mo.1974). Here the trial court (1) heard a narrative from the prosecutor of the state’s evidence, (2) reviewed excerpts of the evidence in order to get appellant’s responses and his answers thereto, and (3) spent one hour and a half viewing the videotape of appellant’s confession.

In Rayford v. State, 504 S.W.2d 285, 289 (Mo.App.1973), and Collins v. State, 450 S.W.2d 186, 190 (Mo.1970), we noted that a defendant’s state of mind is to be decided by the court and that the plea of guilty is to be considered against the totality of the circumstances which preceded the entry of the plea. Consequently, since the trial court determined the pleas to be voluntary and since the transcript of the proceedings indicated appellant’s belief of guilt, we hold that Judge Geary’s findings, conclusions and order denying appellant’s motion to vacate sentences and judgments are not clearly erroneous.

Judgment affirmed.

WEIER, P. J., and RENDLEN, J., concur.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Paul TAYLOR, Defendant-Appellant.
    No. 36988.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 29, 1976.

      Daniel B. Hayes, K. E. Reiter, Clayton, for defendant-appellant.
    Preston Dean, Douglas Mooney, Asst. At-tys. Gen., Jefferson City, Courtney Goodman, Pros. Atty., Clayton, for appellant-respondent.
   DOWD, Judge.

A jury found defendant guilty of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon, Sections 560.120 and 560.135 RSMo 1969, and he was sentenced by the court to fifty years imprisonment pursuant to the Second Offender Act, Section 556.280. Defendant appeals.

Defendant’s sole contention on this appeal is that the court erred in overruling his pretrial motion to suppress evidence obtained in a search and seizure which was allegedly without probable cause.

At the trial it was shown that on November 19, 1974 Earl Stone, seventeen years old, was working at the Allied Cleaners in Ferguson, Missouri. It was about 9 p. m. and he was getting reading to close the store. Two boys entered to use the bathroom. While they were still there, a black man came in and asked to wash his clothes but was told the store was closing. He left, the two boys left, and the man returned. He told Stone he had to pick up clothes from dry cleaning. Stone began looking for a ticket stub and then the clothes. When he turned around the man was pointing a gun at him and told him to give him the money and lay on the floor. Stone gave him currency and change from the cash box which amounted to $32.03, and his wallet which contained no money. The man then grabbed one or more clear plastic bags of clothes and fled.

In the meantime, two police officers received a call that there were “two suspicious negro males around an auto parts store at Wabash and Airport.” One of the officers, Officer Edward Douglas, Jr. was patrolling in that area and proceeded to investigate. As Douglas turned the corner on Wabash, he observed a black man opening the left rear door of a brown Buick and loading it with plastic bags of clothing. This was about ½ block from the scene of the robbery. He stopped his patrol car behind the Buick, turned on the red lights, got out and called out for the Buick to halt. The man instead got into the Buick and the car began rolling downhill. The officer again called out for the car to halt. When it did not, he jumped back into his car, radioed for assistance, and began following the Buick. Officer Robert Meyers was also enroute in response to the police call. He stopped in front of the Buick, blocking its path. It finally stopped, sandwiched in between the two police vehicles. Both officers got out and the occupants of the Buick got out when ordered to do so. There were two black females in front of the car and the black male in the back. Officer Douglas testified that he “patted down” the male for the officer’s own security and asked for identification from all three. No evidence was adduced from this limited search. Douglas asked Officer Meyers to investigate the cleaning store to see if everything was all right. He did this because he associated the plastic bags of clothes he had observed with the dry cleaning store nearby. Meyers went into Allied Cleaners and found clerk Earl Stone on the phone with the police. Stone told Meyers he had just been robbed, and went with him about block, where the two police cars and Buick were stopped. Stone positively identified defendant as the man who had just robbed the store. Defendant was placed under arrest for armed robbery. One of the females opened her purse at the request of Officer Meyers and he saw a gun laying inside it. He examined it and found it to be loaded. The two females were also placed under arrest for armed robbery.

All three suspects were taken to the police station. There defendant was ordered to empty his pockets of all his property and $32.93 was seized. The wallet of Earl Stone was found to be in the possession of one of the two females.

Appellant’s sole challenge is that the search and seizure was without probable cause. He contends that the trial court erred in overruling his pretrial motion to suppress the evidence seized as a result of said search and seizure, such evidence consisting of a black wallet, a revolver, $32.93 seized at the time of booking, and thirteen articles of clothing in the cleaning bags.

This contention is not preserved for review, because defendant did not object to the admission of the evidence at trial. State v. Yowell, 513 S.W.2d 397, 402[2] (Mo. banc 1974). “To properly preserve any alleged error by reason of the admission of evidence allegedly obtained as a result of an illegal search and seizure, the objection must be raised at the earliest possible opportunity by motion to suppress, kept alive by timely objection to the introduction at trial, and preserved by the motion for a new trial.” State v. Roberts, 530 S.W.2d 428, 431[1] (Mo.App.1975) (Citing cases). Here the trial judge overruled the pretrial motion to suppress the above evidence. Then, at the trial, the evidence was admitted without the objection of the defendant. Therefore the issue of the improper search and seizure was not kept alive and is not preserved for review by this court. State v. Hunter, 530 S.W.2d 432, 433[1] (Mo.App.1975). The Yowell case, supra, 513 S.W.2d at 402-403, explains the rationale for the rule requiring objection at trial in addition to objections in pretrial and post-trial actions: 1) frequently a different judge presides at the hearing of pretrial motions than the judge who presides at the trial, and without this rule, the new trial judge would never be informed of the defendant’s pretrial objection to the evidence; 2) trial strategy may account for the failure of defendant’s attorney to object to items of evidence at the trial; 3) defendant’s attorney may decide after hearing the evidence on the pretrial motion to suppress that his motion was without merit, so that requiring him tó object advises the court that defendant wishes to pursue this objection; and 4) even if the same judge presides over both the pretrial motion to suppress and at trial (as in the case at bar) he may wish to reconsider his prior ruling and must have an opportunity to do so.

Although it is not required, this court has, sua sponte, reviewed the record and the trial transcript to determine if there was “plain error” so that Rule 27.20(c) should be applied. We are convinced that on the merits, there was no error in overruling the pretrial motion to suppress, and that the detention and frisking of defendant, as well as the search and seizure of the items introduced.. at trial, were done so properly.

A brief investigative detention on less than probable cause is not violative of the Fourth Amendment. Adams v. Williams, 407 U.S. 143, 145-146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), State v. Stark, 502 S.W.2d 261, 263-64[2] (Mo.1973). The further intrusion of a frisk-search is permissible only if a “reasonable inference arises that the suspect is armed and poses a danger to the officer and others about him.” Kansas City v. Fulton, 533 S.W.2d 677, 680[3] (Mo.App.1976). This requirement is met here. Clearly it was reasonable for the officer to conduct a limited pat-down search for his own protection where he observed a man thrust bags of clothing into the back seat of a car, and whose vehicle began to move when ordered to halt, and continued to move when the halt order was repeated.

The challenges to each item of evidence seized can be readily answered. The wallet and revolver were seized from the two female occupants of the car. Defendant has no standing to raise the legality of the search of third parties. State v. Hornbeck, 492 S.W.2d 802, 808[10] (Mo.1973), so his challenges to the seizure of the wallet and revolver are without merit. The money seized from defendant at the police station was permissible as incident to lawful arrest and as part of the routine booking procedure following arrest. State v. Hohensee, 473 S.W.2d 379, 381[4] (Mo.1971). Finally, the plastic cleaners bags containing the articles of clothing were lawfully seized under the “plain view” doctrine. State v. Hohensee, supra, at 381[3].

Here, the defendant was positively identified by the victim minutes after the crime within a distance of ½ block of the crime with the fruits of the crime within his possession. Therefore, it is clear that the defendant’s guilt of the crime charged was proved by strong, convincing, and overwhelming evidence. Therefore, we are convinced that no injustice will result from the affirmance of this judgment of conviction. State v. Caffey, 457 S.W.2d 657, 660[4, 5] (Mo.1970).

The judgment is affirmed.

CLEMENS, P. J. and STEWART, J., concur.


author: SMITH, Chief Judge.

text:
    Dorothy STEWART, Appellant, v. BOARD OF EDUCATION OF RITENOUR CONSOLIDATED SCHOOL DISTRICT et al., Respondents.
    No. 36801.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 29, 1976.
    Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Donald L. James, St. Louis, for appellant.
    Ziercher, Hocker, Tzinberg, Human & Mi-chenfelder, Edward K. Fehlig, Clayton, for respondents.
   SMITH, Chief Judge.

Plaintiff appeals from a judgment affirming the action of the Board of Education of Ritenour Consolidated School District R-3 terminating her employment as a school teacher. Miss Stewart was employed by the District for 15 years and was, therefore, a permanent teacher under the teacher tenure law, Sec. 168.104(4) RSMo 1969.

The decision of the Board is contained in toto in a letter to Miss Stewart which reads:

“At a special meeting held by the Riten-our Board of Education on June 5, 1974 the members of the Board of Education, by unanimous vote, has concluded that your absences from your employment by the District have been excessive over the period of your employment and that, as authorized by the Teacher Tenure Act, your employment with the District will be terminated at the end of the 1973-74 school year.”

No other findings, conclusions, or opinions were made a part of the record. Sec. 168.120(2) RSMo 1969 provides that on appeal the findings and decision of the Board shall become the record of the cause. The appeal is governed by Chapter 536, RSMo 1969. Sec. 536.090, RSMo 1969, requires that findings of fact and conclusions of law be filed with the decision of the agency.

In Century State Bank v. State Banking Board of Mo., 523 S.W.2d 856 (Mo.App.1975) it was held that a Court cannot be expected to determine whether an agency decision is supported by competent and substantial evidence when it has only a bare ultimate conclusion before it. In such posture it is necessary to remand the case to the Board for further hearings if required, and in any case for preparation of findings of fact and conclusions of law.

Defendants contend that the finding of “excessive” absences is all that it need state to comply with the statute. We disagree. The evidence at the hearing here reflected that plaintiff had missed minimal time pri- or to 1969, 25 days in 1969-70, 16 days in 70-71, 29 days in 71-72, 15 days in 72-73, and 129 days in 73-74. Plaintiff’s evidence including a doctor’s testimony, entirely un-contradicted, was that the absences were the result of illness. The administration did not dispute that the absences were the product of disabling illness, never requested that Miss Stewart be examined by a doctor other than her own, and approved all absences as covered by sick leave. The school board written policy was to allow up to 180 days of accumulated sick leave within any one school year. There is no school board written or oral policy on what constitutes excessive absence and Miss Stewart was never advised that her absences were considered by the administration to be excessive or unreasonable.

In seeking to uphold the action of the Board, respondents here argue that the absences exceed plaintiff’s accrued sick leave by ½ day and are therefore excessive and/or that the absences were not entirely related to disabling illness. But on the “conclusion” of the Board of “excessive” absences we have no way of knowing what the basis of the Board decision was. We held in Merideth v. Board of Education of Rockwood R-6 School District, 513 S.W.2d 740 (Mo.App.1974) that legitimate medical absences within the school board’s sick leave policy could not per se be regarded as excessive and unreasonable. Miss Stewart’s absences were within the 180 day per year policy of the board. If the Board’s position is that what is “excessive” depends upon how much sick leave has actually accrued, which in turn depends upon the length of time of service with the District, it presents an interesting, if anomalous, question. Is a relatively new teacher who sustains a serious medical problem “excessively” absent while a longer term teacher with a minor medical problem is not? Is 129 days absence by Miss Stewart excessive and 128½ is not?

If the Board’s decision is based upon a finding that the absences were not in fact medically justified, the record simply does not contain evidence to support it. If the decision is not based upon one of these grounds, is there some other basis for it? The “findings and conclusions” of the Board simply do not provide a basis for review.

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

NORWIN D. HOUSER and ALDEN A. STOCKARD, Special Judges, concur.

      . Excessive absence was the only ground charged in the notification to Miss Stewart of grounds for termination. That notification was limited to absences in 5 school years, not the entire period of employment.

      . This is not to say that a Board may not establish a policy defining excessive absences as they apply to recurrent or long term disabling illnesses. The Board here has apparently not done so.


author: PER CURIAM.

text:
    EMPIREGAS INC. OF MALDEN, Missouri, Plaintiff-Appellant, v. L. C. HOGELAND, Defendant-Respondent.
    No. 9951.
    Missouri Court of Appeals, Springfield District.
    June 30, 1976.
    James M. Hux, Hux & Green, Sikeston, for plaintiff-appellant.
    Paul W. Seabaugh, Cable & Seabaugh, Kennett, for defendant-respondent.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   PER CURIAM.

Respondent L. C. Hogeland was hired in January 1971 to serve as a driver-salesman for appellant Empiregas Inc. of Malden, Missouri. On June 17, 1974, Hogeland signed a printed “Employment Contract”, which reads in material part as follows:

“9. That as a part of the consideration for this employment agreement, the employee agrees that during the period of his employment, and for a period of thirty-six months from the termination of his employment for any reason he will not associate himself with, or engage in, directly or indirectly, as an employee, owner, partner or shareholder, or be financially interested in, any liquified petroleum gas business located within a radius of fifty miles of any city in which the employer was engaged in the liquified petroleum gas business at any time within the twenty-four months preceding termination of his employment.
“That as a further part of the consideration for this employment agreement, the employee agrees that after termination of his employment for any reason, he will not at any time thereafter divulge or impart to any competitor of the employer any information learned about the company or its business during the course of his employment, including but not limited to names and addresses of customers, routes, methods of solicitation and servicing of such customers.
“That as a further part of the consideration for this employment agreement, the employee agrees that during a period of thirty-six months from the termination of his employment, he will not for any reason related to the liquified petroleum gas business, call upon, solicit, divert, take away, deliver to, sell, service or otherwise deal with the employer’s customers who were served by the company or any of its branches or affiliated companies at any time within twenty-four months preceding the termination of his employment, and will not assist or aid others to do so.”

Hogeland terminated his employment with Empiregas and accepted a similar position with Semo Gas Company, Inc. of Mal-den, Misso.uri. Thereafter, Empiregas petitioned for injunctive relief, recited the aforementioned change of employment, and alleged that Hogeland’s actions were contrary to the terms of the employment contract. The Circuit Court of Dunklin County issued a temporary restraining order and thereafter the cause was submitted to the court upon a stipulation of facts. The judgment modified the prior restraining order and, in essence, restrained respondent from all acts proscribed by paragraphs two and three of provision nine of the employment contract, supra, but ruled that the first paragraph of provision nine was unreasonable, against public policy, and void. We affirm.

The first restrictive paragraph encompasses an area within a fifty-mile radius of any city in which Empiregas was engaged in the liquified petroleum gas business. An arc of such dimension circumscribes portions of Arkansas, Illinois, Kentucky, Missouri and Tennessee. Covenants restricting the activities of employees after employment ceases must be reasonable [Prentice v. Williams, 324 S.W.2d 466, 469[3] (Mo.App.1959)] and will not be enforced where “the area in which the restriction is to be enforced is larger than reasonably necessary for the protection of the covenantee”. Renwood Food Products v. Schaefer, 240 Mo.App. 939, 223 S.W.2d 144, 152[5, 6] (1949). The stipulated facts state only that Empiregas sells liquified petroleum gas in the Dunklin County area. No mention is made of whether Empiregas does, or is qualified to do, business in any state except Missouri. The area described in the first paragraph is unreasonable in view of the Empiregas sales area.

The judgment of the circuit court, enforcing the remainder of the employment contract, affords Empiregas ample protection from respondent’s use of knowledge gained during his employment with Empiregas.

The judgment is affirmed.

All concur.