text:
    STATE of Missouri ex rel. Gene SCHULTZ, Respondent, v. Milt HARPER, Prosecuting Attorney, Appellant, and STATE of Missouri ex rel. Wendell MITCHELL et al., Respondents, v. Milt HARPER, Prosecuting Attorney, Appellant.
    Nos. KCD 30275, KCD 30276.
    Missouri Court of Appeals, Kansas City District.
    Oct. 18, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 1978.
    Milt Harper, pro se.
    Larry M. Woods, Sapp, Woods & Orr, Columbia, for respondent Gene Schultz.
    Before SWOFFORD, C. J., SHANGLER and PRITCHARD, JJ.
   SWOFFORD, Chief Judge.

These consolidated cases originated in Boone County, Missouri by the filing in that court of two separate petitions for writs of mandamus against Milt Harper, the Prosecuting Attorney of that County, seeking to compel him to file charges based upon affidavits by the respective respondents charging the other respondent with violation of the laws arising from occurrences on October 26, 1977 at Columbia, Missouri. Respondent Schultz is a private citizen and respondents Wendell Mitchell and Alan Mitchell are members of the Columbia, Missouri Police Department. The record lacks any details as to the circumstances giving rise to these actions except as to the facts that they occurred on October 26, 1977, at the Schultz residence.

The affidavits filed by respondent Schultz with the Prosecuting Attorney charged that “* * * Alan Mitchell and Dennis Veatch, police officers of the City of Columbia * * * were guilty of the commission of the crimes of Common Assault, Trespass, Oppression in Office, and Forcible Entry and Detainer * *

The joint affidavit filed by Wendell Mitchell and Alan Mitchell charged that Schultz “did wilfully strike, beat or wound Wendell Mitchell, a peace officer, while such officer was actively engaged in the performance of duties imposed on him by law * * Both respondents alleged in their separate petitions, in substance, that such affidavits complied with the requirements of law and were deposited with the appellant-prosecutor for the purpose of causing him to file informations thereon; that they demanded that he do so as was his obligation under the law; that he refused to do so; and, that he had no discretion in the premises. Upon the basis of these petitions, the court below issued alternative writs of mandamus.

In his returns thereto, the appellant, in substance, admitted that the affidavits were filed with him for the purpose of filing informations thereon; that he investigated the allegations of criminal conduct contained therein; that, in the exercise of his absolute prosecutorial discretion, he decided that upon the law and the facts no criminal conduct had occurred; and, that he, therefore, refused to file criminal infor-mations. The court below thereafter ordered its peremptory writs of mandamus issued and the prosecutor appealed to this Court, where the appeals were consolidated.

At the outset, it is noted that the record is unclear as to the names of the police officers involved. The transcript in the Schultz case (No. KCD 30,275) does not contain a copy of the affidavit filed by Schultz with the prosecutor but his petition for mandamus identifies the persons he charges as Alan Mitchell and Dennis Veatch, police officers. The affidavit filed in the other case is shown in the transcript. It was signed by Wendell Mitchell and Alan Mitchell, police officers, and states that Wendell Mitchell was the recipient of the Schultz assault. Dennis Veatch appears in the record only in the Schultz petition. The alternative and peremptory writs issued by the court below in the Schultz case do not identify the person or persons against whom the prosecutor is commanded by the writ to file informations.

While respondents Mitchell were represented by counsel in all proceedings below, they have not filed a brief in this appeal. However, this deficiency and confusion in the record is not raised by the parties and has no effect upon the decision in view of this Court’s conclusions as to the legal issues here decisive of the appeals. The single dispositive issue for decision is the duty and obligation of a prosecutor, when sworn affidavits are filed with him charging another with a criminal offense, to file informations thereon. Or stated in another light, to what extent can or should he exercise his discretion in such circumstances?

The appellant-prosecutor’s position is that under the statutes, § 56.060 RSMo 1969, and § 545.250 RSMo 1929, RSMo 1969, and the decisional law relating thereto, upon the filing of the affidavits of complaint above described it lies within his absolute discretion as to whether or not a criminal charge is filed based upon such affidavits; that after investigation he concluded that such informations should not be filed, and it would have been improper for him to do so since the criminal charges were not supported by probable cause; and, that the writs of mandamus were incorrectly issued.

On the other hand, respondent Schultz in his brief takes the position that under §§ 545.250, 545.240, 543.030 and 543.040, RSMo 1969, it was the absolute duty of the appellant-prosecutor to file the informa-tions based upon the affidavits with no room for the exercise of any discretion. The issue is thus clearly drawn and requires an examination of the statutory and case law existing on this subject.

The broad and all-inclusive duties and obligations of a prosecuting attorney in Missouri are stated in § 56.060 RSMo 1969, which provides in part that:

“Each prosecuting attorney shall commence and prosecute all civil and criminal actions in his county in which the county or state is concerned * * *” (Emphasis added)

§ 545.250 RSMo 1969, upon which the actions here involved are based, in essential part, provides:

“When any person has knowledge of the commission of a crime, he may make his affidavit * * * and file the same with the clerk * * * or deposit it with the prosecuting attorney * * * and it shall be the duty of the prosecuting attorney to file an information, as soon as practicable, upon said affidavit, as directed in section 545.240.” (Emphasis added)

§ 545.240 referred to covers the procedural steps to be followed in filing an information based upon a citizen’s complaint and affidavit.

§ 545.250 was first enacted in 1877, Laws 1877, p. 354. Section 6 of that enactment stated that “the prosecuting attorney must file an information as soon as practicable”, instead of the term “it shall be the duty of the prosecuting attorney” as above quoted from the present statute, which was enacted in identically its present form as Section 3505, RSMo 1929.

Respondent Schultz also cites §§ 543.020 and 543.030 RSMo 1969 as supportive of his position. Chapter 543 deals with proceedings before Magistrate courts in misdemeanors, and § 543.020, in pertinent part, provides that complaints covering this type of offense may be filed by the complainant with the magistrate having jurisdiction of the offense, or deliver the same to the prosecuting attorney who “shall forthwith file an information” with the proper magistrate. § 543.030 provides in part that all such informations shall be made and signed by the prosecuting attorney and shall be filed with the magistrate “as soon as practicable” (Emphasis added). It is apparent that the Legislature in the enactment of these sections employed the terms “forthwith” and “as soon as practicable” (the latter phrase being the same as that employed in § 545.250) as synonymous so that a determination of the meaning of the phrase as used in § 545.250 under the decisions will be equally binding as to the meaning of the phrases employed in §§ 543.020 and 543.030.

The parties’ briefs and independent research do not disclose any decisions in this state that factually present this exact issue nor which involve the extraordinary writ of mandamus procedure to force a prosecutor to file an information upon a citizen’s complaint without the exercise of any discretion, regardless of the factual results of his own investigation and his application of his legal knowledge and judgment. However, the courts on several occasions have been called upon to both define his obligations as prosecutor in such circumstances and also to define the limits thereof under the statutes in question here.

In State on Inf. McKittrick, Atty. Gen. v. Wymore, Pros. Atty., 345 Mo. 169, 132 S.W.2d 979 (Banc 1939) a Quo Warranto proceeding was brought by the Attorney General of Missouri against the Prosecuting Attorney of Cole County seeking to oust him from that office upon the grounds that he had permitted the open and notorious operation of gambling devices, such as slot machines, in that county and principally in Jefferson City, in violation of the criminal laws of this state. The evidence was overwhelming that such was the fact and that it was common knowledge that such violations were open, continuous and uninterrupted and had received wide coverage in the news media. The court held that, under the evidence, the prosecutor had actual knowledge of the violations under the “notorious fact” rule.

The prosecutor denied any actual knowledge of these facts and further stated that no complaint had ever been filed with him requiring any investigatory, discretionary or other affirmative exercises of his powers or duties as prosecutor under the statutes and, therefore, he was not guilty of official misconduct. Thus, the challenge to define his powers and duties as prosecutor was by the court in Wymore accepted, in no uncertain terms.

The court in Wymore declared, citing from a Wisconsin case:

“* * * ‘A public prosecutor is a quasi judicial officer, retained by the public for the prosecution of persons accused of crime, in the exercise of a sound discretion to distinguish between the guilty and the innocent, between the certainly and the doubtfully guilty.’ * * * Of necessity, ‘in distinguishing between the certainly and the doubtfully guilty’ the prosecuting attorney should make a reasonable effort to discover witnesses and interview them with reference to the facts. After doing so he should give careful consideration to both the law and the facts before determining the question of prosecution or no prosecution. * *” (132 S.W.2d l.c. 986 [9, 10]).

In discussing this Section 3505, RSMo 1929 (now Section 545.250 RSMo 1969 here involved) providing for citizen complaints, the court in Wymore said (132 S.W.2d l.c. 988 [21-22]):

“* * * If a private person files a complaint, the prosecuting attorney is not compelled, for that reason, to file an information. However, it is his duty to make a reasonable investigation and then determine if an information should be filed.”

In the case of State on Inf. McKittrick, Atty. Gen. v. Wallach, 353 Mo. 312, 182 S.W.2d 313 (Banc 1944), a quo warranto proceeding to declare forfeiture of the office of prosecuting attorney of St. Louis County, for failure to prosecute gambling and liquor violations in that county, the court spelled out in greater detail the duties and discretionary powers of the prosecuting attorney. The sense of Wallach is based upon the premise of information or facts coming to the prosecutor, whether the source be citizens’ complaints, police or other law enforcement investigation or personal knowledge of facts. In each event the court declared this standard of prosecutorial conduct (182 S.W.2d l.c. 318-319 [4-10]):

“The duty of a prosecuting officer necessarily requires that he investigate, i. e., inquire into the matter with care and accuracy, that in each case he examine the available evidence, the law and the facts, and the applicability of each to the other; that his duties further require that he intelligently weigh the chances of successful termination of the prosecution, having always in mind the relative importance to the county he serves of the different prosecutions which he might initiate. Such duties of necessity involve a good faith exercise of the sound discretion of the prosecuting attorney. 'Discretion’ in that sense means power or right conferred by law upon the prosecuting officer of acting officially in such circumstances, and upon each separate case, according to the dictates of his own judgment and conscience uncontrolled by the judgment and conscience of any other person. Such discretion must be exercised in accordance with established principles of law, fairly, wisely, and with skill and reason. It includes the right to choose a course of action or non-action, chosen not wilfully or in bad faith, but chosen with regard to what is right under the circumstances. Discretion denotes the absence of a hard and fast rule or a mandatory procedure regardless of varying circumstances. That discretion may, in good faith (but not arbitrarily), be exercised with respect to when, how and against whom to initiate criminal proceedings. Watts v. Gerking, 111 Or. 641, 228 P. 135, 34 A.L.R. 1489. Such discretion so vested by law in the prosecuting officer is both official and personal. Engle v. Chipman, 51 Mich. 524, 16 N.W. 886. * * * ” (Emphasis added)

This prosecutorial discretion recognized in Wymore and Wallach, supra, is given further credence and emphasis in the case of State ex rel. Griffin, Pros. Atty. v. Smith, J., 363 Mo. 1235, 258 S.W.2d 590 (Mo. banc 1953). This was an original proceeding in prohibition instituted by the prosecuting attorney to challenge the jurisdiction of a circuit judge to proceed further in a homicide prosecution, in which case the prosecutor had both orally and in writing entered the state’s nolle prosequi and dismissal of said cause. The respondent-judge refused to permit the prosecutor to enter said nolle prosequi or discontinue the criminal prosecution. A preliminary rule in prohibition was issued against the judge by the Supreme Court en banc, which was by the decision made absolute.

In this case, in discussing the powers of a prosecuting attorney, the court held that he was vested under the law with personal discretion as a minister of justice, and stated (258 S.W.2d l.c.. 594):

“* * * Of necessity a prosecuting attorney is charged with the responsibility and vested by law with the discretion and legal duty to investigate the facts and the applicable law and to himself determine when a prosecution should be initiated. And by token of the same reasoning we think the discretion vested in him by law places in him the sole power to determine when he should proceed with the prosecution or dismiss it.”

To like effect, see: State ex rel. Lodwick v. Cottey, 497 S.W.2d 873, l.c. 880 [6] (Mo.App.1973).

In the light of these clearly analogous declarations, the conclusion is inevitable that in the cases at bar, the prosecutor-appellant was vested with the absolute discretion as to whether or not he would file informations based upon the affidavits of Schultz and the Mitchells subject only to his obligation to investigate the facts and the law applicable and reach his own conclusion thereon. In his return to the preliminary writs, he states that he did make such an investigation and reached the conclusion that under the law and the facts, no criminal violation was shown and no proper cause existed for the filing of such informa-tions. These allegations are not challenged or in anywise disputed by the respondents and are accepted as true.

It is obvious that the adoption here of the respondent’s contentions that upon the filing of the affidavits the prosecutor was required, without any exercise of discretion or judgment or knowledge of the law or of the facts, to file informations based thereon could result in chaos in the administration of criminal law and would render the quasi-judicial character of the office of prosecutor purely an administrative function based upon the anger, whim, possible ulterior motives or caprice of the persons filing such affidavits. The very nature of such office calls for the exercise of qualified discretion and judgment. No charge is made that the prosecutor-appellant acted in any manner agnostic to or in derogation of his duties within the framework of orderly administration of criminal justice.

This Court refuses to ascribe to the Legislature under the statutes here involved the intent to thus strip a prosecutor of his basic rudimentary function.

On October 3, 1978, the respondent Gene Schultz filed a motion in this Court seeking an order directing the prosecutor-appellant to file the informations based upon the Schultz affidavits above described and that no further process be issued thereon pending a final decision of his case on appeal. This motion was not ruled but was taken with the case upon submission. In view of the decision herein, this motion is now moot and is overruled.

For the reasons herein stated and the authorities cited, the preliminary and peremptory writs of mandamus issued by the court below were improvidently issued and should be quashed.

The judgments below are therefore reversed and the causes remanded with directions to the Circuit Court of Boone County, Missouri to forthwith enter its orders quashing such writs.

All concur.


source: Caselaw Access Project

author: FLANIGAN, Judge.

license: Public Domain

text:
    PECAN SHOPPE OF SPRINGFIELD, MISSOURI, INC., Plaintiff-Appellant, v. TRI-STATE MOTOR TRANSIT CO., Defendant-Respondent.
    No. 10293.
    Missouri Court of Appeals, Springfield District.
    Oct. 18, 1978.
    Motion for Rehearing or to Transfer Denied Nov. 3, 1978.
    Application to Transfer Denied Dec. 18,1978.

      Bob J. Keeter, Schroff, Keeter, Glass & Newberry, P. C., Springfield, for plaintiff-appellant.
    Meredith B. Turner, Rodney E. Loomer, Turner, Reid & Duncan, Springfield, Robert G. Oberlander, Linde, Thompson, Fairchild, Langworthy & Kohn, Kansas City, for defendant-respondent.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   FLANIGAN, Judge.

Defendant Tri-State Motor Transit Co. is a motor carrier licensed by the state of Missouri and the Department of Transportation. On September 14, 1970, the union employees of Tri-State went on strike. In the early morning hours of September 30, 1970, a tractor-trailer unit, owned by TriState and driven by its non-striking employee John A. Galt, was transporting a load of dynamite, for shipper DuPont Company, from Joplin, Missouri, to a mining site at Boss, Missouri.

As the unit was traveling on Interstate Highway 44 in Greene County, Missouri, it approached an overpass on which stood Bobby Shuler, one of the striking employees. Using a 30-30 rifle, Shuler fired three shots at the unit, thereby causing a “tremendous” explosion which resulted in the death of Galt and the destruction of the unit. The explosion caused heavy damage to nearby improved land owned by plaintiff Pecan Shoppe of Springfield, Missouri, Inc., on which it conducted a restaurant and service station business.

Plaintiff brought this action for damages against Tri-State and the union. Prior to the trial plaintiff settled its claim against the union. The amount of that settlement did not fully compensate plaintiff for its damages and the case proceeded to trial against Tri-State. The jury returned a verdict in favor of Tri-State. Plaintiff appeals.

Plaintiff’s principal “point relied on” is that the trial court erred in failing to direct a verdict for plaintiff on the issue of liability. It is plaintiff’s position that the doctrine of strict liability was applicable to the admitted facts and that the sole province of the jury was to determine the extent of plaintiff’s uncompensated damages and to render the appropriate award.

It is the position of Tri-State that the trial court did not err in the manner claimed because “the theory of strict liability does not apply to a common carrier engaged in transporting explosives,” and further, that the cause of the explosion “was the intervening criminal act of convicted murderer Bobby Shuler.”

Where the undisputed facts establish as a matter of law that the plaintiff is entitled to recover, the trial court may and should direct a verdict in his favor. Rogers v. Thompson, 364 Mo. 605, 265 S.W.2d 282, 287[1] (Mo. banc 1954); Twellman v. Lindell Trust Co., 534 S.W.2d 83, 88[2] (Mo.App.1976); Alaska Federal Savings and Loan Ass’n v. Hoffman, 485 S.W.2d 118, 120[1] (Mo.App.1972).

Plaintiff’s contention is that certain basic facts, conceded to be true by Tri-State, required the trial court to direct a verdict in plaintiffs favor. Those facts are:

1. Tri-State was operating its truck, loaded with dynamite, on the highway;
2. The dynamite exploded;
3. As a direct result of the explosion, plaintiff sustained damage for which it was not fully compensated.

The facts recited above were undisputed. The parties also agree that after the commencement of the strike and prior to the explosion, various acts of violence were committed against Tri-State by “persons known and unknown.”

Witnesses for Tri-State testified that the nighttime movement of explosives was safer than daytime movement because of less traffic. Plaintiff, however, attempted to show that the risk of violence was lower during daytime. After the commencement of the strike Tri-State vehicles moved in convoys, usually accompanied by security guards as escorts. The FBI, the highway patrol, and local sheriffs were informed of movements of the convoys.

The unit driven by Galt was one of a two-unit convoy. Prior to its departure from Tri-State’s premises at Joplin, the sheriffs of Lawrence County and Greene County were notified of the movement. This information was relayed to deputy sheriffs and other patrol officers. Several law enforcement vehicles were assigned the duty of protecting the convoy. There were six overpasses in Greene County and deputy sheriff Lindsey had checked the overpass used by Shuler a few minutes before the explosion occurred. Officer Lindsey was checking another overpass, a quarter of a mile away, when he heard the explosion.

In submitting the case to the jury the court, at the instance of the plaintiff, gave two verdict-directing instructions. Instruction No. 2, in essence, required a verdict in favor of the plaintiff if the jury found these facts: Tri-State operated a truck that carried dynamite; the dynamite exploded; “Such use by [Tri-State] of its property was unreasonable”; and plaintiff sustained damage as a result.

Instruction No. 3 required the jury to return a verdict for the plaintiff if they found that plaintiff was damaged as a result of defendant’s conduct in two alternative respects and if the jury found that such conduct was negligent. The alternative grounds were: (1) Tri-State “operated its truck carrying dynamite at night when incidents of shooting were occurring at night and such truck could have been operated during the day,” and (2) Tri-State “operated its truck carrying dynamite at a time when it knew that such truck might be fired upon and could cause an explosion.”

Plaintiff argues that the transportation of dangerous commodities in interstate commerce by motor carrier requires a special certification by the Interstate Commerce Commission and that Tri-State, having sought that certification, exercised its free choice to transport explosives. Approximately 50 percent of Tri-State’s business consists of the hauling of explosives, ammunition and nuclear waste. Accordingly, says plaintiff, Tri-State should not be entitled to avail itself of those principles which exempt a common carrier from liability for injuries caused by the explosion of commodities in its custody where there is no showing that the carrier was negligent or maintained a nuisance. Plaintiff also argues that the acts of violence which antedated the explosion made the criminal conduct of Shuler foreseeable.

Tri-State argues that plaintiff was accorded a decision on the issues of negligence and unreasonable use and that, under the instant facts, the doctrine of strict liability should not be invoked. Tri-State relies upon its status as a “common carrier by motor vehicle” as defined in 49 U.S.C.A. § 303(a)(14) and seeks to avail itself of those principles of liability which pertain to the transportation of explosives by such carriers. Tri-State points out that the Restatement of Torts, Second, Yol. 3, Chapter 21 [§§ 519-524(a)] contains certain principles concerning “abnormally dangerous activities.” Section 521 is to the effect that “the rules as to strict liability for abnormally dangerous activities” do not apply if the activity is carried on in pursuance of a public duty imposed upon the actor as a common carrier. Tri-State advances the alternative argument that the criminal conduct of Shuler serves to exculpate it, even assuming that liability would otherwise attach.

None of the foregoing arguments totally lacks appeal. Neither side, in their respective and excellent briefs, has cited any authority which is factually similar. This case, viewed in all of its aspects, seems to be one of first impression and the disposition of this appeal has not been free of difficulty. This court concludes that the trial court did not err in refusing to direct a verdict for the plaintiff.

Counsel have cited no Missouri cases dealing with the liability of a transporter for damages caused by the explosion of dangerous substances in its custody. Missouri courts have dealt with the liability of persons who use explosives in blasting activities and with the liability of storers of dangerous substances.

In Summers v. Tavern Rock Sand Co., 315 S.W.2d 201, 203[1,2] (Mo.1958), our supreme court said: “ ‘[Bjlasting is regarded as a work which one may lawfully do, providing he avoids injuring persons or property, and subject to his obligation to pay damages for any injury inflicted by his blasting.’ . And in this state when damage to property is by vibration or concussion from blasting there is an invasion of the premises and liability irrespective of negligence quite as if the blasting had cast rocks or debris thereon.”

When persons or property, located in populated areas and off the premises of the storer of dangerous substances, are injured as a result of an explosion of the substances, the storer incurs liability “regardless of the question of the degree of care he exerted to prevent an explosion.” Scalpino v. Smith, 154 Mo.App. 524, 135 S.W. 1000, 1004[5] (1911). The court there said: “The act of defendant in storing a dangerous quantity of dynamite on his premises was an invasion of the personal and property rights of his neighbors who dwelt within the range of its destructive force.” Similar holdings are found in Schnitzer v. Excelsior Powder Mfg. Co., 160 S.W. 282 (Mo.App.1912); French v. Center Creek Powder Mfg. Co., 173 Mo.App. 220, 158 S.W. 723 (1913); State v. Excelsior Powder Mfg. Co., 259 Mo. 254, 169 S.W. 267 (1914); Liggett v. Excelsior Powder Mfg. Co., 274 Mo. 115, 202 S.W. 372 (1918).

In Schnitzer the court held that the defendant was guilty of maintaining a public nuisance in storing on its premises combustible and explosive materials in such large quantities that their mere presence constituted a continuous menace to persons living in the vicinity. In French the court held that the storer of nitroglycerin was liable to a plaintiff whose nearby home was damaged by an explosion and that liability attached whether the substance “exploded by pure accident or by negligence.” The court added: “He who made it possible for the damage to be done should bear [the] loss.” The court in the earlier Excelsior case stated: “A powder magazine, as to all property and residents in such proximity to it that they are subject to danger from its explosion, is a nuisance regardless of the question as to negligence in the manner of keeping it.” The court held that the constant danger of explosion “of itself, without an actual explosion,” caused a powder magazine to be a public nuisance. In Liggett, which also involves the Excelsior company, the court approved the holding in the earlier Excelsior case.

Courts in other jurisdictions are not in agreement on the issue of whether a transporter of dangerous substances, in the absence of negligence or facts supporting a finding of nuisance, is liable for injuries caused by their explosion. Authorities denying liability in such circumstances include Pope v. Edward M. Rude Carrier Corp., 138 W.Va. 218, 75 S.E.2d 584 (1953) and Christ Church Parish v. Cadet Chem. Corp., 25 Conn.Sup. 191, 199 A.2d 707 (1964). The foregoing authorities represent the majority view. 31 Am.Jur.2d Explosions and Explosives § 86, p. 855; 35 C.J.S. Explosives § 9, p. 283; Restatement of Torts, Second, § 521. On the other hand, strict liability was imposed upon the carrier in Siegler v. Kuhlman, 81 Wash.2d 448, 502 P.2d 1181 (1972) and Chavez v. So. Pac. Trans. Co., 413 F.Supp. 1203 (E.D.Cal.1976).

In Pope, a leading authority in the field, a shipment of dynamite was being transported on a public highway by a licensed contract carrier (Rude) on behalf of a manufacturer and shipper (DuPont). The injured plaintiff sought recovery against Rude and DuPont on two theories, the maintenance of a public nuisance and the doctrine of absolute liability. In rejecting both theories, the court emphasized the distinction between the liability of the transporter of such substances and that of a storer or a user for blasting purposes. The court said, 138 W.Va. 218, 75 S.E.2d at p. 595:

“With respect to the liability of a common carrier or other carrier who transports high explosives the rule is that in the absence of negligence on its part such carrier is not liable to third persons who are injured by an explosion which occurs during the transportation by it of such explosives but that it is liable for injuries caused by its negligence or where it has so handled a shipment that it has become a nuisance which causes injury.”

The court quoted, with approval, the following language from Actiesselskabet Ingrid v. Central Railroad Company of New Jersey, 216 F. 72, 78 (C.A. 2 1914): “It certainly would be an extraordinary doctrine for courts of justice to promulgate to say that a common carrier is under legal obligation to transport dynamite and is an insurer against any damage which may result in the course of transportation, even though it has been guilty of no negligence which occasioned the explosion which caused the injury. It is impossible to find any adequate reason for such a principle.”

In Christ Church Parish, defendant’s tractor-trailer unit, loaded with 20 tons of chemical substances, exploded. Recognizing that Connecticut applied the doctrine of absolute liability to users of explosives for blasting purposes, the court stated 25 Conn. Sup. 191, 199 A.2d at p. 709: “The liability of the carrier should be predicated upon its knowledge of the dangerous propensities of the substance it is transporting, together with its use of a standard of care commensurate with the dangerous character of the substance.”

On the other hand, in Siegler, the doctrine of strict liability was applied to render the owner of a gasoline truck liable for the death of a motorist who was killed when her automobile encountered a pool of spilled gasoline on the highway. The trailer of defendant’s tractor-trailer unit separated from the tractor and overturned. The cause of the separation was unknown. The court said, 81 Wash.2d 448, 502 P.2d at p. 1184:

“Dangerous in itself, gasoline develops even greater potential for harm when carried as freight — extraordinary dangers deriving from sheer quantity, bulk and weight, which enormously multiply its hazardous properties. . . . It is quite probable that the most important ingredients of proof will be lost in a gasoline explosion and fire. Gasoline is always dangerous whether kept in large or small quantities because of its volatility, inflammability and explosiveness. But when several thousand gallons of it are allowed to spill across a public highway — that is, if, while in transit as freight, it is not kept impounded — the hazards to third persons are so great as to be almost beyond calculation. The rule of strict liability rests not only upon the ultimate idea of rectifying a wrong and putting the burden where it should belong as a matter of abstract justice, that is, upon the one of the two innocent parties whose acts instigated or made the harm possible, but it also rests on problems of proof.”

Referring to explosions of “dynamite, large quantities of gasoline, and other explosives,” the court pointed out that persons harmed thereby encounter difficult problems of proof if some standard of liability, other than strict liability, is applied. The court stated that the transportation of large quantities of gasoline on the public highway was “more highly hazardous” than the storage of it in commercial quantities.

In Chavez, 18 boxcars, loaded with bombs, exploded in a railroad yard. The boxcars and bombs were owned by the United States and were being hauled by Southern Pacific under a contract with the Navy. The cause of the explosion is not stated in the opinion. Southern Pacific sought dismissal of those claims against it which were predicated on the theory of strict liability. The court said, at p. 1208:

“Notwithstanding Southern Pacific’s protestations to the contrary, one public policy now recognized in California as justifying the imposition of strict liability for the miscarriage of an ultrahazardous activity is the social and economic desirability of distributing the losses, resulting from such activity, among the general public.”

The court said, at p. 1209:

“[T]he risk distribution justification for imposing strict liability is well suited to claims arising out of the conduct of ultra-hazardous activity. The victims of such activity are defenseless. Due to the very nature of the activity, the losses suffered as a result of such activity are likely to be substantial — an ‘overwhelming misfortune to the person injured.’ ... By indirectly imposing liability on those that benefit from the dangerous activity, risk distribution benefits the social-economic body in two ways: (1) the adverse impact of any particular misfortune is lessened by spreading its cost over a greater population and over a larger time period, and (2) social and economic resources can be more efficiently allocated when the actual costs of goods and services (including the losses they entail) are reflected in their price to the consumer. Both of these benefits may be achieved by subjecting Southern Pacific to strict liability.”

The court in Chavez rejected the doctrines of Aetiesselskabet Ingrid, Pope and Christ Church Parish, all discussed supra, and said there was no sound basis for exempting carriers from the doctrine of strict liability. The court said at p. 1214:

“[Tjhere is no logical reason for creating a ‘public duty’ exception when the rationale for subjecting the carrier to absolute liability is the carrier’s ability to distribute the loss to the public. Whether the carrier is free to reject or bound to take the explosive cargo, the plaintiffs are equally defenseless. Bound or not, Southern Pacific is in a position to pass along the loss to the public. Bound or not, the social and economic benefits which are ordinarily derived from imposing strict liability are achieved. Those which benefit from the dangerous activity bear the inherent costs. The harsh impact of inevitable disasters is softened by spreading the cost among a greater population and over a larger time period. . . .”

Siegler lends support to plaintiff’s argument that transporting dynamite on public highways is even more dangerous than storing it and Missouri has imposed absolute liability upon storers thereof. Chavez advances the “risk distribution” justification and challenges the majority view granting exemptions to carriers. There is much to be said in favor of these holdings but in neither Siegler nor Chavez was the court confronted with a situation involving the criminal act of a third person as the immediate cause of the explosion.

Other jurisdictions have dealt with the liability of a storer or transporter of dangerous substances where the explosion was caused by the intentional misconduct of a third person. The cases include Kleebauer v. Western Fuse & Explosives Co., 138 Cal. 497, 71 P. 617 (1903); McGehee v. Norfolk & S. Ry. Co., 147 N.C. 142, 60 S.E. 912 (1908); Watson v. Kentucky and Indiana Bridge & R. Co., 137 Ky. 619, 126 S.W. 146 (1910); Globe & Rutgers Fire Ins. Co. of New York v. Standard Oil Company of La., 158 La. 763, 104 So. 707 (1925).

In Kleebauer an employee of the defendant murdered a fellow employee and then ran into a powder magazine. He intentionally set fire to the magazine when officers attempted to arrest him. The court held that the defendant was not liable to the plaintiff whose nearby house was damaged. The court held that plaintiff had failed to make a showing of negligence but also held that under the facts the defendant was not guilty of maintaining a nuisance per se.

In McGehee the court held that a storer of dynamite was not liable to a plaintiff who was injured by an explosion which was caused by plaintiff himself engaging in shooting at the storage building. The plaintiff was a trespasser on defendant’s premises. The court specifically refrained from expressing an opinion as to the liability of the defendant “for damage sustained by one who had no connection with the explosion.”

In Watson a tank car owned by the defendant was transporting gasoline through the city of Louisville. A derailment caused the gasoline to escape and flow in large quantities on the street and into the gutters. Plaintiff was injured by an explosion produced by the act of one Duerr in throwing a lighted match into the gasoline. The court held that if the act of Duerr “was malicious and done for the purpose of causing the explosion” defendant would not be liable.

In Globe defendant’s employee was delivering gasoline to the underground tank of a customer and negligently permitted the gasoline to overflow. Plaintiff was injured by an explosion caused by the act of a third person in throwing a lighted match into the gasoline. In holding the defendant was not liable, the court stated that the handling of gasoline cannot be accomplished without some spilling, that the defendant should not be treated as an insurer and that the public must share some part of the unavoidable risk. The court said the defendant was not required to anticipate “the foolhardy act of throwing a lighted match near the intake pipe of a gasoline tank at a time when gasoline was being poured into it.”

In a Missouri case, Kennedy v. Independent Quarry & Const. Co., 316 Mo. 782, 291 S.W. 475 (1926), an adult trespasser took a dynamite cap from a shed located on defendant’s premises. Seven hours later and away from defendant’s premises, the trespasser intentionally ignited the dynamite and injured the plaintiff. The court held that the trial court properly directed a verdict for the defendant. At p. 481 the court said: “Under all the circumstances shown, we conclude that the essential failure of the plaintiff’s case is in the intervention, between defendant’s alleged negligence and plaintiff’s injury, of the acts of the [trespasser], not reasonably to be anticipated by defendant, and of a character which made the original negligent act of defendant remote, and superseded it. The act of [the trespasser] was not that of a child, or one of merely concurring negligence, but was the act of a person nearing maturity, moving independently, and conscious of wrongdoing . . [T]here was an efficient intervening cause, which defendant was not bound to anticipate.”

On the other hand, even if the immediate cause of plaintiff’s injuries was the criminal act of a third person, defendant is not always relieved of liability. In Gaines v. Property Servicing Co., 276 S.W.2d 169 (Mo. 1955), plaintiff was a tenant in an apartment building owned by the defendant. Plaintiff was injured as a result of a fire in the building. The building was not equipped with a fire escape as required by statute. The fire was lit by one Haley who was convicted of arson for setting it. The defendant asserted that he was relieved of liability by reason of Haley’s intervening intentional criminal act. In holding the defendant liable, the court pointed out that he was guilty of negligence per se in failing to comply with the statute. The purpose of the statute was to furnish protection against injury from any fire, regardless of its origin. The court held it was immaterial whether the fire “had its origin in accident, act of God, negligence, or willful, intentional, and wrongful conduct.” A jury was entitled to find that defendant’s negligence concurred “with the intentionally set fire” to cause the injuries and the trial court did not err in denying defendant’s request for a directed verdict.

The case at bar is distinguishable from Gaines. Plaintiff made no showing that Tri-State violated any statute or regulation dealing with the transportation of dynamite. There was nothing unlawful in TriState’s operation of the unit which exploded.

In order for this court to uphold plaintiff’s contention it must adopt the minority view, exemplified by Siegler and Chavez, which refuses to recognize the general rule of non-liability of common carriers for explosions occurring in the absence of negligence and elements of nuisance. Plaintiff has cited no authority to support the view that a carrier which devotes most of its business to the transportation of explosives is entitled to less favorable consideration than the ordinary common carrier. In the absence of a clear legislative intent, the granting of a specific classification to a carrier should not create a liability where otherwise none exists. Further, this court would have to take the additional step, not taken by Siegler or Chavez, of invoking the doctrine of absolute liability where the undisputed evidence shows that the explosion was caused by the criminal act of a third person. This it is unwilling to do. Plaintiff’s principal point has no merit.

In other assignments of error plaintiff challenges certain rulings of the trial court with regard to the admission of evidence. Those assignments have been reviewed and no prejudicial error appears. A discussion of them would serve no precedential purpose.

The judgment is affirmed.

All of the Judges concur.

      . The conviction of Shuler for the second degree murder of Galt was affirmed in State v. Shuler, 486 S.W.2d 505 (Mo.1972).

      . Tri-State does not argue that plaintiff’s settlement with the union fully compensated plaintiff for its damages and makes no effort to justify, on that ground, the action of the trial court in refusing to direct a verdict in plaintiffs favor.

      . Between September 15 and September 29 there were 33 separate incidents of violence; 7 involved the shooting of firearms at Tri-State vehicles; 7 involved the throwing of objects at Tri-State vehicles; 2 drivers were beaten up; 10 drivers were threatened. No explosions occurred.

      . Section 522 of the Restatement of Torts, Second, provides that one carrying on an abnormally dangerous activity is subject to strict liability for the resulting harm although it is caused by three enumerated “unexpectable” sources, one of which is “innocent, negligent, or reckless conduct of a third person.” However, a “caveat” to § 522 reads: “The Institute expresses no opinion as to whether the fact that the harm is done by an act of a third person that is not only deliberate but also intended to bring about the harm, relieves from liability one who carries on an abnormally dangerous activity.”

      . In Siegler the concurring opinion of Judge Rosellini espoused the risk distribution argument supported by the Chavez case. However, he stated that the principal opinion “should make clear that the owner of the vehicle will be held strictly liable only for damages caused when the flammable or explosive substance is allowed to escape without the apparent intervention of any outside force beyond the control of the manufacturer, the owner, or the operator of the vehicle hauling it. I do not think the majority means to suggest that if another vehicle, negligently driven, collided with the truck in question, the truck owner would be held liable for the damage. But where, as here, there was no outside force which caused the trailer to become detached from the truck, the rule of strict liability should apply.”
      Some courts have imposed liability upon the storer of dangerous substances when the explosion was caused by lightning. See Chicago, W. & V. Coal Co. v. Glass, 34 Ill.App. 364 (1889) and Prussak v. Hutton, 30 App.Div. 66, 51 N.Y.S. 761 (1898). Contra: Tuckachinsky v. Lehigh & Co., 199 Pa. 515, 49 A. 308 (1901).

      . It is arguable that the transportation of dynamite is even more dangerous than the transportation of gasoline. A Missouri court has said: “The mere storage of a large quantity of gasoline is not a nuisance per se; other factors must be considered.” City of Spickardsville v. Terry, 274 S.W.2d 21, 25[3] (Mo.App.1954).

      . In Exner v. Sherman Power Const. Co., 54 F.2d 510, 515 (C.A. 2 1931) absolute liability was imposed upon a storer of dynamite which exploded and injured the plaintiff who was off the premises. In dictum, Judge Augustus Hand, speaking for the court, said: “It is argued that transportation of the dynamite through the town in small quantities would have increased the risk to the public. This seems to be true, and no reason is shown for taking such a course, because it would have added to the danger without relieving the defendant from absolute liability, had an explosion occurred while the dynamite was on the way.”


author: GUNN, Judge.

text:
    Gary T. MORRIS, Petitioner-Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION, Division of Employment Security, State of Missouri, Respondents-Appellees.
    No. 39725.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 24, 1978.

      Stanley J. Eichner, Stuart R. Berkowitz, The Legal Aid Society of the City and County of St. Louis, St. Louis, for petitioner-appellant.
    John F. Gillespie, Rick V. Morris, Div. of Employment Security, Jefferson City, Charles B. Fain, Labor & Industrial Relations Commission, Jefferson City, for respondents-appellees.
   GUNN, Judge.

Appellant Gary Morris applied for and collected unemployment insurance benefits of $63 a week from August 31, 1975 through the week of April 24, 1976. A deputy for the Labor and Industrial Relations Commission subsequently determined that Morris had been ineligible for benefits from August 31, 1975 through January 24, 1976 and held that appellant had been overpaid in the amount of $1,359.95. This decision was affirmed by an appeals tribunal of the Labor and Industrial Relations Commission and again by the circuit court. We, too, affirm.

It is unquestioned that appellant was attending college for approximately twelve hours a week during the contested period. The referee found that appellant had been unemployed, but determined that “. . . until at least January, 1976, the claimant’s primary goal was education, supplemented with a limited entry into the labor market.”

Although the claimant was willing to accept employment during the hours that he attended school, this does not alter the fact that during the period in question he was a full-time student during the major part of what is considered normal working hours. The Referee finds that the claimant’s attendance at a local university severely restricted his availability for work. In the Matter of the Claim of Gary Morris, # A-1464-76-S. (Appeals Tribunal, Div. Employment Security May 24, 1976).

The sole issue on appeal is whether the Labor and Industrial Commission erred in its determination that appellant, as a full time student, was not “available for work” within the meaning of the benefits eligibility requirements cited in § 288.040, RSMo Supp.1977. Our examination is limited by the strictures of § 288.210, RSMo 1969. We may not substitute our judgment for that of the Commission but must determine whether the results reached were supported by competent and substantial evidence after viewing the record as a whole and in the light most favorable to the Commission’s award. Duffy v. Labor & Indus. Relations Com'n 556 S.W.2d 195 (Mo.App.1977); Theus v. Industrial Commission of Missouri, 554 S.W.2d 516 (Mo.App.1977).

In this case, the record consists solely of appellant’s testimony. At the time of his application, he had completed two years of junior college and was beginning his third year at a local university. Appellant explained that he was searching for a full time job despite his progress in school and was willing to quit school if one became available. Although he admitted that he would have lost a substantial amount of tuition investment if he had received an offer late in the semester, appellant reiterated his desire to work. During the period in question, appellant stated that he was available to work full time; that he sought work on the average of 3 days a week; and that he did not reject any employment opportunities. Appellant ultimately quit school in January 1977 and began working several months later. He testified that his decision to leave college was not related to his present occupation.

The success of appellant’s argument rests upon his analysis of Golden v. Industrial Commission of Missouri, 524 S.W.2d 34 (Mo.App.1975). A synopsis of that case is in order. At the time of unemployment, claimant Golden was a college student whose classes required his attendance from 7:30 a. m. to 12:20 p. m., Monday through Friday. From his entrance into college in September 1972 until his application to obtain unemployment benefits in February 1973, Golden had been employed in jobs which did not conflict with his classroom hours. Because of his need to limit availability for work, Golden was denied unemployment benefits. In the course of the opinion, the court made several broad statements upon which appellant now relies. Generally, the fact that a benefits claimant is a full time student raises a rebuttable presumption that he is not “available for work” and therefore ineligible. A full time student has a heavy burden to overcome when seeking unemployment compensation, though benefits should not be denied merely on the basis of student status.

Student-claimant’s ruled eligible for unemployment benefits are those who place their availability for work ahead of their pursuit for formal learning. By not limiting their availability for work to times when they are free from class attendance and by proving a sincere willingness to change class schedules or entirely abandon their educational pursuits if that be necessary to secure employment, such student-claimants are said to be eligible for benefits because they are realistically and genuinely attached to the labor market. Id. at 37-38.

Appellant claims that the evidence establishes his availability for employment and his genuine attachment to the labor force. He complains that the Commission relied solely upon his status as a student when it determined his ineligibility for unemployment benefits.

The determination of availability for work presents a question of fact for the Commission. Golden v. Industrial Commission of Missouri, supra, at 38. As the trier of fact, the Commission may choose to believe or disbelieve all or none of any witness’s testimony. Tri-State Motor Tr. Co. v. Industrial Commission of Missouri, 509 S.W.2d 217 (Mo.App.1974); Rapp v. Industrial Commission of Missouri, 360 S.W.2d 366 (Mo.App.1962). Under the circumstances, we cannot say that the Commission’s finding was against the weight of the evidence. The burden of proof is upon appellant. The referee’s decision was evidently based on Gary Morris’s failure to prove that his primary purpose was employment and not education. While precedent in the area is scarce, we find support for this decision in the declaration of public policy which prefaces the Missouri Employment Security Law. § 288.020, RSMo 1969. The purpose of the law is to promote economic stability for Missouri citizens who have become unemployed through no fault of their own. George F. Deutschmann, Inc. v. Leiser, 546 S.W.2d 560 (Mo.App.1977); Beal v. Industrial Commission, 535 S.W.2d 450 (Mo.App.1976). The legislation is aimed at benefiting persons who are firmly entrenched in the labor market and not in subsidizing those whose primary goal is an advanced degree. Appellant declared his future intention to accept employment even if it conflicted with his class schedule. Although the testimony was uncontradicted, the administrative agency here, as trier of fact, has the right to disbelieve and reject a self serving statement and accept the inference that appellant’s attendance in school would affect and restrict his availability for work. Tri-State Motor Tr. Co. v. Industrial Commission of Missouri, supra; Fielder v. Production Credit Association, 429 S.W.2d 307 (Mo.App.1968). And it is apparent from hearing referee’s findings that he did not believe appellant’s assertion of availability. We therefore affirm the decision of the Labor and Industrial Relations Commission.

REINHARD, P. J., and CLEMENS, J., concur.

      . For a complete discussion on the subject of student claimants who have attempted to gain unemployment benefits, see Annot. 35 A.L.R.3d at 1154-1158 (1971).


author: CLEMENS, Judge.

text:
    UNITED STATES FIRE INSURANCE CO., Respondent, v. MADESCO INVESTMENT CORPORATION, Defendant.
    No. 39434.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 31, 1978.

      Portman & Portman, Paul F. Black, Greg S. Kessler, St. Louis, for defendant.
    Daniel J. McMichael, Fitzsimmons & Fitz-simmons, Inc., Clayton, for respondent.
   CLEMENS, Judge.

This bailment case arose from the theft of an insured automobile while in the custody of defendant-bailee, operator of a parking lot. Plaintiff-insurer paid the owner for his loss and sued as his subrogee, alleging defendant had negligently permitted the theft. A jury so found and defendant has appealed from the ensuing $9,000 judgment.

Plaintiff’s insured parked his car in defendant’s lot at Fourth and Delmar in downtown St. Louis. The lot became crowded and to permit exit of another car, defendant’s employee moved the insured car to the street, placed the ignition key over the sun visor and left the door unlocked. Within fifteen minutes the car had been stolen.

The only issue raised here concerns the trial court’s restriction of defendant’s cross examination of a plaintiff-witness.

Plaintiff presented a police officer who testified about the contents of the police report concerning the theft. On cross examination defense counsel put two questions to the officer:

“Q. And could you explain to the jury what you know about auto thefts in regard to the accessibility of an automobile, as far as someone who wants to steal an automobile? Is it very difficult if you want to steal an automobile, to steal an automobile?
“Q. From your experience in the police department can you tell us the time it would ordinarily take for someone to steal an automobile?”
The trial court sustained plaintiff’s objections to both questions. Defendant’s brief fails to show the relevance of the two questions, but of more critical importance is defendant’s failure at trial to make an offer of proof; that is fatal to his only point relied on.

In Thayer v. Sommer, 356 S.W.2d 72[11—12] (Mo.1962) the court held: “An objection to the exclusion of testimony cannot be considered on appeal in the absence of a showing of what the testimony would have been and that it was relevant and material. * * * The mere refusal to allow a witness to testify is not reversible error in the absence of a showing of what the answer would have been.” To the same effect, see Hays v. Western Auto Supply Company, 405 S.W.2d 877[1, 2] (Mo.1966).

Defendant acknowledges this principle but relies on the narrow exception announced in Miller v. Kamo Electric Cooperative, Inc., 351 S.W.2d 38[4] (Mo.App.1961). That case held no offer of proof was necessary after the trial court has ruled broadly that evidence of a particular class of offered evidence was inadmissible. No such broad ruling was made here. The exception does not negate defendant’s duty to show the trial court what the witness’ answers would have been and how that would be relevant and material. By defense counsel’s silence he has failed to lay the necessary basis for error.

We now consider plaintiff’s motion for an award of damages for frivolous appeal under Rule 84.19, declaring: “If an appellate court shall determine that an appeal is frivolous it may award damages to the respondent as the court shall deem just and proper.” A frivolous appeal is “one presenting no justiciable question and so readily recognizable as devoid of merit on face of record that there is little prospect that it can ever succeed.” State ex rel. State Highway Commission v. Sheets, 483 S.W.2d 783[4, 5] (Mo.App.1972). Since in the trial court defendant failed to lay any foundation for the only point raised on appeal, there was never any prospect defendant would prevail; it was patently frivolous.

In considering the appropriate amount of damages to be assessed against plaintiff for frivolous appeal, we consider the dilatory tactics in prosecuting the appeal. In this case defendant sought by a third-party petition to shift liability to its own insurer and the insurer’s agent. Thereby defendant contended its insurer was obliged to cover the loss, or alternatively that the insurer’s agent had negligently failed to provide a policy affording theft coverage. Defendant was denied leave to file that third-party petition. In this court, defendant moved to extend time for filing its transcript on appeal, admitting it had not ordered the transcript because defendant was hoping “collateral proceedings” would resolve the issues of this appeal. We conclude that not only is defendant’s appeal patently devoid of merit but that defendant has purposefully delayed its submission. As such, defendant’s appeal was an abuse of judicial process; it cast an unwarranted burden on plaintiff, its counsel and this court. Compare Brooks v. General Motors Assembly Division, 527 S.W.2d 50[9-12] (Mo.App.1975), and Whitman v. Livingston, 541 S.W.2d 61[4] (Mo.App.1976).

We consider an appropriate award of damages to plaintiff is the sum of $1,000, and order the cause remanded with instructions to increase plaintiff’s judgment in that amount.

Affirmed and remanded.

REINHARD, P. J., and GUNN, J., concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    Wavalene Rana BOYER, now Williamson, Respondent, v. Larry CHURCH, Administrator of the Estate of John H. Boyer, Deceased and Margaret Boyer and James Boyer, Appellants.
    No. 38588.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Oct. 31, 1978.

      Evans & Dixon, Jeffry S. Thomsen, Marilyn R. Koch, St. Louis, for Boyer.
    Panned, Dodson & Robinson, Festus, for Church.
    Jack C. Stewart, Mark T. Stoll, Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, Hillsboro, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Upon application of plaintiff the trial court set aside a previously entered default judgment against plaintiff and defendants have appealed. We affirm.

John H. Boyer and Margaret F. Boyer were the owners by the entirety of two parcels of land in Jefferson County. On July 6, 1972 they transferred one of the parcels to James W. Boyer (their son) and Wavelene R. Boyer, his wife. On March 5, 1973 they transferred the other tract to the same grantees. Both transfers were by warranty deed and each was for a nominal consideration.

In 1973 John H. Boyer was adjudicated to be mentally incompetent, and on March 15, 1974 his guardian filed suit against James W. Boyer and Wavelene R. Boyer to set aside the two deeds.

In October 1973 James filed suit for divorce and Wavelene moved out of the house in which she had been living with James and established her residence in an apartment in Festus, Missouri and obtained employment. The attorney for the guardian of John H. Boyer requested by letter to the circuit clerk that in the suit to set aside the two deeds James be served at Route 1, Box 471, Festus, Missouri, which was the home of his parents and where he and Wavelene had lived prior to their separation, and that Wavelene be served at 1010 North Third Street, Festus, Missouri, which was the apartment where she had resided subsequent to the separation. However, on the summons to Wavelene the address there typed was Route 1, Box 471, Festus, Missouri. The record does not disclose at whose direction this was done. On March 21,1974, a deputy sheriff delivered the summons addressed to Wavelene and also the summons addressed to James to Margaret Boyer, James’ mother, at the address typed on each summons. A return was made on the summons directed to Wavelene that it had been served by leaving a copy at her “usual place of abode with a member of the family who is over the age of 15 years: to-wit, Mrs. John H. Boyer.”

James filed an answer in which he admitted that at the time John H. Boyer executed the two deeds “he was wholly incompetent in that he was without mental capacity to understand the nature of his business or to know the extent of his property * * *.” Wavelene did not appear and on July 18,1974, the court entered a judgment on the pleadings against James and a default judgment against Wavelene, and adjudged the two deeds to be void because at the time of the execution of the deeds James H. Boyer was “without mental capacity” and was suffering from advanced and progressive senility.

Although Wavelene had been properly served in the divorce action brought by James, she defaulted and on October 2, 1974, the court entered a finding that the marriage was irretrievably broken. It caused notice of such finding to be sent to her as required by the then provisions of § 452.320 RSMo 1969. This notice caused Wavelene to investigate what had happened to the property and she then learned for the first time that a default judgment had been entered against her and that the court had set aside the two deeds. (She also requested and obtained the restoration of her maiden name of Williamson.) Wavelene then filed this suit to set aside the default judgment, and after a trial before the court at which the defendants (appellants on this appeal) presented no evidence, the court entered judgment setting aside the default judgment previously entered against Wav-elene. No findings of fact were made, none being requested, so we consider that the trial court found the facts in accord with its judgment. Our review is governed by Rule 73.01, and we are to sustain the judgment of the lower 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. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

In each of their three points presented on this appeal defendants-appellant assert for the reasons there set forth that the trial court erred in failing to sustain their motion for a directed verdict. Such motion has no place in a court tried case. The issue is for which party should the judgment be entered; not whether a submissible case was made.

Appellants contend that the judgment that was entered is erroneous because it is “not supported by substantial evidence that [they] procured the judgment [in the suit to set aside the two deeds] by fraud or that respondent had a meritorious defense to the underlying action.”

Several factual matters are important and should be emphasized. At the time the suit by the guardian of John Boyer was filed Wavelene and James had separated and a divorce action was pending. Approximately five months before the summons in the suit to set aside the deeds was served on her mother-in-law, Wavelene had left the home of John H. and Margaret Boyer where she had lived with James, and she had obtained employment and established a separate residence in the City of Festus. There is no contention by appellants that at the time of the service the home of Margaret Boyer was the “dwelling house or usual place of abode" of Wavelene. In fact, James and Margaret in their pleadings admit that each knew that at the time of the service Wavelene “did not reside at Route 1, Box 471, Festus, Missouri.” James knew where Wavelene was residing, and in view of the total circumstances we can assume that Margaret Boyer knew or could easily have found out her whereabouts. Neither James nor Margaret, each of whom had an interest adverse to Wavelene, advised her of the pending suit or of the purported service of the summons. Wavel-ene obtained no actual notice of the suit until after the default judgment against her had become final.

Appellants’ challenge to the validity of the judgment setting aside the previously entered default judgment is directed only to the contention that there was no substantial evidence that they procured the judgment by fraud, but it is well established that “a court of equity will interpose its aid when a wrong has been done to a litigant through accident or mistake as readily as when there has been fraud in the concoction or procurement of a judgment.” Krashin v. Grizzard, 326 Mo. 606, 31 S.W.2d 984, 987 (1930); Smoot v. Judd, 161 Mo. 673, 61 S.W. 854 (1901); Human Development Corporation of Metropolitan St. Louis v. Wefel, 527 S.W.2d 652 (Mo.App.1975).

The facts we have related present a strong indication of fraud, or what is referred to as badges of fraud, Harrison v. Harrison, 339 S.W.2d 509 (Mo.App.1960), but assuming that the service at a place not the dwelling house or usual place of abode of Wavelene, and her failure to receive any actual notice of the suit, was not the result of fraud, it unquestionably was the result of a wrong done to Wavelene through accident or mistake. The guardian of John Boyer, who was plaintiff in the suit to set aside the deeds, knew that Wavelene resided in Festus because he gave instructions that she be served there. We do not know who changed those instructions and directed that service be had at her former place of residence where the only occupants of that house were persons whose interests in the suit were adverse to her. But the change had to have been made with fraudulent intent or, if not, then as the result of a mistake or accident. In either event a court of equity will exercise its powers to prevent the perpetration of such a wrong.

Appellants also assert that there was no substantial evidence that Wavelene had a meritorious defense to the suit to set aside the deed. She pleaded that at the time the deeds were executed John Boyer was of sound mind which if established would have been a meritorious defense. Because of the default she was deprived of the opportunity to present that defense at the trial, and there is no contention that the failure of Wavelene to receive actual notice of the suit resulted from any negligence or misconduct on her part.

While in this suit to set aside the default judgment plaintiff had the burden to establish that she had a meritorious defense, Luce v. Anglin, 535 S.W.2d 504 (Mo. App.1976), that does not mean that she was to present evidence from which the merits of her claim could be conclusively determined. As stated in Luce v. Anglin, supra at p. 508, she “should not be required * * to present extensive evidence or a full-blown defense,” but only “to make some showing to the court of the existence of at least an arguable theory of defense.” Wav-elene testified to various conversations by and conduct of John Boyer indicating that he was fully aware of the consequences of the execution of the deeds and that the transfer of title was his wish and desire. We express no opinion concerning the merits of this defense, but under the circumstances of this case Wavelene is entitled to have the opportunity to present it for consideration in the suit to set aside the two deeds.

The judgment of the trial court is supported by substantial evidence, and the trial judge did not erroneously declare or apply the law.

The judgment is affirmed.

DOWD, P. J., and SNYDER, J., concur.


text:
    George H. BOHN, Respondent, v. Edward T. JAMES, Appellant.
    No. 39327.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Oct. 31, 1978.
    Robert H. Burns, John H. Marshall, Clayton, for appellant.
    Godfrey P. Padberg, St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Defendant has appealed from a judgment entered pursuant to jury verdict in which plaintiff was awarded $8,000 damages for injuries resulting from an automobile collision.

Plaintiff’s and defendant’s evidence differed as to the manner in which the collision occurred. According to defendant, plaintiff was driving northward in the right hand lane of Highway 244 (now Highway 270), and defendant was following him but driving in the center lane. After they passed the intersection with Highway 40 defendant’s automobile gained on that of plaintiff and when the two automobiles were about 20 feet apart, plaintiff moved quickly from the right lane into the center lane without signaling. Although defendant attempted to brake his automobile he struck plaintiff’s automobile in the rear.

According to plaintiff, he was traveling about 55 miles an hour northward in the right curb lane of Highway 244, and he moved over into the center lane before he reached the intersection with Highway 40. The highway was clear of traffic ahead of him, and after driving at least three-quarters of a mile in the center lane his automobile was struck in the rear by defendant’s automobile.

Plaintiff testified over objection that immediately following the collision he “detected alcohol on [defendant’s] breath,” and the investigating police officer testified over objection that his report indicated that he “apparently” smelled alcohol on defendant’s breath. Defendant also testified on cross-examination, over objection, that after leaving his place of employment he had consumed three or four beers. Defendant asserts that this evidence to the effect that he had been drinking was prejudicially erroneous because there was no evidence of erratic driving on his part, and as stated in Boehm v. St. Louis Public Service Company, 368 S.W.2d 361, 372 (Mo.1963), such evidence is admissible only “when coupled with evidence of erratic driving * * *.” See also Doisy v. Edwards, 398 S.W.2d 846 (Mo. 1966); Cheatham v. Chartrau, 237 Mo.App. 793, 176 S.W.2d 865 (1944); Hager v. McGlynn, 518 S.W.2d 173 (Mo.App.1974).

Defendant argues that there was substantial evidence from which the jury could find that plaintiff was negligent in moving into the center lane in front of defendant, and that of “utmost importance” is the testimony of plaintiff that the police officer gave defendant a test in which he was to try to walk a straight line and to bend over, and that the police officer stated on his report that defendant’s ability was “not impaired.” However, plaintiff relies on other testimony and circumstances disclosed by the evidence as constituting evidence of erratic driving. He points out that it was a clear day, that there was no traffic ahead of him, and that he was driving 55 miles an hour, and that he had been in the center lane for at least three-quarters of a mile. Also, that defendant was driving 75 to 80 miles an hour, which was in excess of the speed limit, and that he continued to drive in the same lane as plaintiff, although the lane on either side was open and overtook and collided with the rear of plaintiff’s vehicle. Whether plaintiff’s or defendant’s version of what occurred was to be believed was an issue for the jury, but plaintiff’s version did constitute evidence of erratic driving on the part of defendant. See Hager v. McGlynn, supra. The trial court did not err in overruling defendant’s objection to the testimony indicating that he had been drinking.

Dr. Waldo Forsman, plaintiff’s treating doctor, referred plaintiff to Dr. Donald O. Burst, an orthopedic surgeon, because, as he said, he had done all he could and wanted another doctor to examine him. At the time of trial Dr. Burst was suffering from a physical disability and was unable to be in court. It was stipulated that a report made by Dr. Burst was made in the regular course of business and that it would not be necessary to produce the custodian of the records to establish the report as a business record under the Uniform Business Records as Evidence Act, §§ 490.660-490.690 RSMo 1969. Part of the report was read to the jury, and part was excluded on specific objection of defendant. That part that was read contained a recital of certain factual matters concerning the collision which is in accord with defendant’s testimony, and of which there is no dispute. The remainder of the report that was read pertains only to the issue of damages; in other words, how seriously plaintiff was injured.

Defendant asserts that the report “is hearsay, not subject to the Business Records exception to the hearsay rule,” and was made “in anticipation of and in the course of litigation.”

As noted, it was stipulated that the record was made in the usual course of business, and Dr. Forsman, not plaintiff’s lawyer, referred plaintiff to Dr. Burst for an examination. As stated in Rossomanno v. Laclede Cab Company, 328 S.W.2d 677, 681 (Mo. banc 1959), “The Business Records as Evidence Law abrogated many of the antiquated and technical common law rules regarding the admission of business records in evidence and expanded the operation of the common law rule for the admission of such records as an exception to the hearsay rule. * * * Therefore, an objection to a business record on the ground that it is hearsay is unavailing if the record meets the requirements of the act for admission in evidence.” Defendant advances no reason why he contends the report was not subject to the business records exception to the hearsay rule, and as demonstrated by the Rossomanno case, supra, there is no merit to the objection that the record was hearsay.

The fact that a business record was made “in anticipation of and in the course of litigation” does not, of itself, result in it being inadmissible in evidence. Many business records are made in anticipation of litigation. It is only when the record is not made “in the regular course of business” as required by § 490.680, supra, but its primary utility was in litigating that it becomes inadmissible for that reason. See Kitchen v. Wilson, 335 S.W.2d 38, 43 (Mo.1960). The testimony of Dr. Forsman as to the reason he referred plaintiff to Dr. Burst establishes that the report was made by Dr. Burst in the course of his business as an examining orthopedic surgeon.

As previously noted, the contents of the report of Dr. Burst, except the undisputed comment that the injuries were sustained when plaintiff “was driving at approximately 55 miles an hour on Highway 244 and was hit from the rear by another car,” pertained solely to the issue of damages, but there is no point in defendant’s brief that the verdict was excessive. For this reason defendant’s challenge on this appeal to the admission in evidence of parts of Dr. Burst’s report is without merit. See Anderson v. Bell, 303 S.W.2d 93, 100 (Mo. 1957); Miller v. Haynes, 454 S.W.2d 293 (Mo.App.1970).

Plaintiff requests that we invoke Rule 84.19 pertaining to frivolous appeals, which in the exercise of our discretion we decline to do.

The judgment is affirmed.

DOWD, P. J., and SNYDER, J., concur.


author: REINHARD, Presiding Judge.

text:
    Michael H. RYAN, Plaintiff-Respondent, v. PARK-RITE CORPORATION, Defendant-Appellant.
    No. 39686.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 31, 1978.

      Bernard Susman, Robert M. Susman, St. Louis, for defendant-appellant.
    Val Terschluse, Clayton, for plaintiff-respondent.
   REINHARD, Presiding Judge.

Plaintiff in this court tried case received a judgment in the amount of $822.00 for damages to his automobile. Defendant appeals and we affirm.

On April 11, 1975, the plaintiff drove his 1973 automobile onto the Park-Rite parking lot in St. Louis. Plaintiff wears a prosthesis on his right leg; his automobile is equipped with an accelerator for his left foot. The accelerator is situated on the floorboard to the immediate left of the brake pedal and to the far left of the regular accelerator pedal. The purpose of this equipment is to allow plaintiff to more easily operate his automobile with his left leg.

Upon driving onto defendant’s lot he was met by Sam Edmonson, one of defendant’s employees who is in charge of receiving customer’s cars. Edmonson gave plaintiff a parking stub and parked the car. When plaintiff returned for his car he gave Ed-monson his parking stub. Edmonson then went to retrieve the car, and while returning it to the 11th Street entrance he drove across 11th Street and collided with a lamp post and fire hydrant. The amount of damage is not in dispute on appeal.

Defendant contends that the court erred in its application of the law of bailment to this case and that plaintiff’s admission that he failed to warn defendant’s employee of the existence of a second gas pedal precluded plaintiff’s recovery.

This case was tried originally in the Magistrate Court and appealed to the Circuit Court where it was tried without a jury. Defendant filed no pleadings.

The Circuit Court found that there was a contract of bailment, that plaintiff delivered his car to defendant pursuant to this bailment, and that the car was redelivered by the defendant in a damaged condition.

In a bailment action, three theories may be asserted by the bailor — general negligence, specific negligence and breach of bailment contract. Broadview Leasing Co. v. Cape Central Airways, Inc., 539 S.W.2d 553 (Mo.App.1976). In a bailment action which is based on breach of a bailment contract the bailor must simply show that the bailee failed to perform his contract to return the property in an undamaged condition. Broadview Leasing Co., supra, at 561; 8 Am.Jur.2d, Bailments § 311. When such has been shown, the burden then rests upon the bailee to prove its exercise of ordinary care. Broadview Leasing Co., supra at 561; 8 Am.Jur.2d, Bailments § 311.

Applying these principles to the present case plaintiff fulfilled his burden of showing the bailee’s failure to perform his contract to return the automobile in an undamaged condition. The defendant presented no evidence to fulfill its burden of proof that it had exercised ordinary care. Furthermore, there is simply no evidence that the second gas pedal was in any way connected with the accident.

The judgment of the trial court is affirmed.

CLEMENS and GUNN, JJ., concur.

      . The Circuit Court based its determination on the theory of “breach of a bailment contract”. In defendant’s brief it contends that plaintiff pleaded general negligence and that his evidence was that of general negligence. In its oral argument it appears to have abandoned this theory. However, defendant would not prevail even under this theory, because, as stated in Broadview Leasing Co. v. Cape Central Airways, Inc., 539 S.W.2d 553, 560 (Mo.App. 1976): “It is clear in this state that by alleging general negligence on the part of the bailee, the bailor, upon proof of loss, raises an inference of negligence under the res ipsa loquitur doctrine and thus shifts the burden of going forward with the evidence to the bailee, . . ” The defendant presented no evidence to rebut the inference of negligence.

      . Defendant bases much of its argument on the fact that plaintiff failed to inform defendant of the second gas pedal. The court in its findings of fact found that this equipment “is obvious to one about to operate said vehicle and is not hidden in any manner from normal view.” There was evidence in the record to support this finding.


text:
    Mary A. HOWARD, Appellant, v. Eugene M. HOWARD, Respondent.
    No. 39494.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 31, 1978.
    David B. Tobben, Daniel M. Buescher, Union, for appellant.

      Mittendorf & Mittendorf, Larry G. Mit-tendorf, Union, for respondent.
   CLEMENS, Judge.

The issue here is whether the ten-year statute of limitations, § 516.350, RSMo. 1969, prevents enforcement of a dormant 17-year-old child-support judgment. The trial court so held and plaintiff has appealed. We affirm.

The parties were divorced in 1960 and defendant was ordered to pay $60 a month for child support. In 1977 plaintiff was granted execution and garnishment for the entire judgment. Plaintiff pleaded neither partial payment nor revival of her judgment. Defendant, relying on the ten-year statute of limitations, moved for judgment on the pleadings and the trial court quashed the execution.

In Sisco v. Sisco, 339 S.W.2d 283[2, 3] (Mo.App.1960), following the earlier case of Mayes v. Mayes, 342 Mo. 401, 116 S.W.2d 1[1] (1938), we held a judgment for periodic payments of child support is a monetary judgment in favor of the mother-custodian, and becomes dormant ten years after rendition except when kept alive by payment or revival.

On appeal, for the first time, plaintiff contends the judgment is still alive because of defendant’s absence from the state. No such contention was made in the trial court, so on the record there was no basis for error.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: KELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Larry Gale CALLAHAN, Defendant-Appellant.
    No. 38828.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 31, 1978.

      James G. Gregory, Montgomery City, for defendant-appellant. (On Appeal only.)
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Kathryn Marie Krause, Chief Counsel, Asst. Atty. Gen., Jefferson City, Thomas I. Osborne, Pros. Atty., Cynthea O. MacPherson, Asst. Pros. Atty., Mexico, for plaintiff-respondent.
   KELLY, Judge.

Larry Gale Callahan, the appellant, was convicted in the Circuit Court of Audrain County, Missouri, on Count I of the Information, stealing from the person, a violation of § 560.156, Laws 1955, p. 507, and on Count II thereof, exhibiting a dangerous and deadly weapon in a rude, angry and threatening manner, § 564.160 RSMo. 1969. The information filed in the case also alleged that the appellant had been previously convicted of felonious assault, without malice, together with the other allegations essential to present the question whether the provisions of the Second Offender Act, § 556.280 RSMo. 1969, were applicable. Appellant entered a plea of not guilty to the charges aforesaid.

The cause came on for trial and from the evidence the jury could have found that on April 22, 1976, Nathaniel Curtis left his place of employment at approximately 5:00 p. m. to go home, and while en route, he turned onto Western Street in Mexico, Missouri, and heard someone shout his name. He applied the brakes of his car, turned and observed one Dennis Newbrough. Mr. Curtis brought his automobile to a stop in front of the appellant’s home to see what Mr. Newbrough wanted and both Mr. New-brough and the appellant came over to the automobile. At this time Mr. Curtis was wearing a hat. According to Mr. Curtis’ testimony, appellant made a comment with respect to the hat Mr. Curtis was wearing, reached into the automobile in which Mr. Curtis was sitting, and took the hat off Mr. Curtis’ head.

Mr. Curtis remained in the automobile and talked with the appellant for about ten or fifteen minutes, when he decided to continue on his route home and requested the appellant return his hat. Appellant replied that he was going to wear the hat awhile and walked away from the car across a yard there. Mr. Newbrough, immediately prior to appellant’s walking away from the car, “hollered out let’s have some gun play.” Appellant proceeded into the house, remained there for two or three minutes, and when he exited therefrom, he had a shotgun. Appellant walked to the back of the car in which Mr. Curtis was seated. He then walked up to the side of the car near where Mr. Curtis was seated, put the shotgun right into Mr. Curtis’ face, rubbed it around, and said: “I give you $2.00 for it. Why (sic) in the hell are you doing there. Why the hell did you get out.” Mr. Curtis pushed the gun away and told appellant that if he wanted the hat why didn’t he say so; why did he bring out the shotgun.

At about this time another car came up the road with its horn blowing, because appellant was in the street and the approaching car could not clear Mr. Curtis’ car until he moved it. Appellant turned toward the approaching car and said: “You can’t — can’t you see me in the road talking to this guy here?” At this point Mr. Curtis drove off, and went directly to the Mexico police station where he reported the incident.

The following day, April 23, 1976, the appellant was taken into custody on warrants issued for his arrest on these charges, and a 20 gauge shotgun was seized from his home pursuant to a search warrant. At trial, Mr. Curtis testified that the shotgun seized from appellant’s home looked like the shotgun which had been displayed against him the previous day. On the basis of evidence furnished in the defendant’s case, the trial court found that the provisions of the Second Offender Act were applicable, and the jury found the appellant guilty on both counts of the information. The trial court sentenced appellant to four years in the custody of the Missouri Department of Corrections on the offense charged in Count I and three years in custody of the Department of Corrections on the offense charged in Count II of the information. The sentence imposed in Count II was ordered to be served consecutively to that imposed in Count I.

On appeal, four issues are presented by the appellant in his “Points Relied On.” However, for reasons we shall set out, none of these are preserved for review, and we have concluded the fourth Point should not be afforded review as “Plain Error.”

The first Point Relied On is: “The court erred in allowing the state to introduce evidence of ‘other crimes’ committed by the defendant where such evidence of ‘other crimes’ had no logical relevancy to any particular excepted purpose for which such evidence of ‘other crimes’ was sought to be introduced.”

We have searched appellant’s Motion for New Trial and there is no allegation in said Motion presenting this Point to the trial court. We are precluded by Rule 84.13, made applicable to criminal cases on appeal by Rule 28.18, from considering any allegation of trial court error which was not presented to and decided upon by the trial court. While the first two allegations of trial court error contained in appellant’s Motion for New Trial contend the trial court erred in admitting the testimony of two witnesses relative to (1) their observation of the appellant striking the hood of the automobile of one of the witnesses and heard him threaten to shoot at the car, and (2) that the appellant threatened to kill the other witness, a police officer, in neither instance does the allegation state why it was error for the trial court to admit this evidence. Rule 27.20(a) requires that a Motion for New Trial shall “set forth in detail and with particularity, . . . , the specific grounds or causes therefor.” Mere allegation of error without reasons does not constitute a compliance with this requirement of Rule 27.20(a). State v. Bailey, 544 S.W.2d 285, 286[1] (Mo.App.1976). We hold that this Point was not preserved for review in the appellant’s motion for new trial.

Appellant’s second Point Relied On is that the trial court erred in allowing the state to interrogate' the appellant about being absent without leave (A.W.O.L.) while he was a member of the Armed Forces of the United States, under the guise of impeaching his credibility, pursuant to § 491.050 RSMo. 1969, when this evidence was inadmissible for that purpose or for any other purpose. This Point was not preserved in the appellant’s motion for new trial for the same reason Point I in his brief was not preserved, i. e. as stated in his motion for new trial, this Point merely alleges that the “court erred in allowing the prosecuting attorney to interrogate the defendant about a conviction which occurred in the service for being absent without leave.” No reasons why the admissibility of this evidence was error are set out in this paragraph of the motion for new trial and it fails to comply with the requirements of Rule 27.20(a) for that reason. We hold that the appellant failed to preserve this Point for review.

Appellant’s third Point Relied On is that the trial court erred in failing to instruct on the issue of self-defense on the charge of exhibiting a dangerous and deadly weapon in a rude, angry and threatening manner. Appellant’s motion for new trial, paragraph 7 alleges: “The Court erred in refusing the defendant’s Instruction (A); the said instruction being an instruction on self-defense.” He has failed in this allegation of trial court error, to state in detail and with particularity the reason why the trial court’s refusal to submit said instruction was error in violation of the requirements of Rule 27.20(a). State v. Sanders, 541 S.W.2d 530, 532[1] (Mo. banc 1976). We hold that this Point has not been preserved for appellate review.

Appellant’s fourth and final Point Relied On is that the trial court erred in giving Instruction No. 5, the state’s verdict-director on Count I of the information. Inasmuch as this Point was not raised in appellant’s motion for new trial, he asks us to review it as “plain error” pursuant to the provisions of Rule 27.20(c).

Review of alleged trial court errors not otherwise preserved for appellate review under the benefit of this subsection of Rule 27.20 may be considered by the appellate court in its discretion when the court deems that manifest injustice or miscarriage of justice has resulted from the alleged trial court error. The Rule is to be applied on a case by case basis where substantial rights are affected and there is a strong, clear showing that injustice will result if the Rule is not invoked. State v. Williams, 541 S.W.2d 89, 91[2] (Mo.App. 1976); State v. Embry, 530 S.W.2d 401, 404[2] (Mo.App.1976). Our examination of the record has failed to cause us to conclude that there is any manifest injustice or miscarriage of justice present here resulting from the alleged error of the trial court which was not properly preserved to warrant application of the Rule.

Judgment affirmed.

GUNN, P. J., and WEIER, J., concur.