author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri at the relation of Charles T. SHEPHERD, II, a minor, by Charles M. M. Shepherd, next friend, Petitioner-Relator-Appellant, v. The ST. LOUIS COUNTY BOARD OF EDUCATION, and the members thereof, Respondents-Appellees, and School District of the City of Ladue and Kirkwood School District R-7, Respondents-Intervenors.
    No. 37469.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 11, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Application to Transfer Denied Nov. 8, 1976.

      Shepherd & Weenick, Charles M. M. Shepherd, Clayton, for appellant.
    Bertram W. Tremayne, Jr., Clayton, for Kirkwood R — 7 School Dist.
    Robert Grant, Assoc. County Counselor, Clayton, for Board of Education.
    Robert McClintock, St. Louis, for Ladue School Dist.
   NORWIN D. HOUSER, Special Judge.

Action in mandamus filed by Charles T. Shepherd, II, by his father and next friend, Charles M. M. Shepherd, against St. Louis County Board of Education and its members, for a judicial finding that Wright School in Ladue School District is more accessible to petitioner’s location than any school in the Kirkwood School District R — 7, within the meaning of § 167.121, RSMo 1969, and that respondents be commanded to assign petitioner to Wright School and continue that assignment until he completes the educational program there offered. Both school districts were allowed to intervene. The court issued an alternative writ of mandamus. On full hearing a motion to dismiss the petition for writ of mandamus was sustained, the petition was dismissed, and petitioner appealed.

This litigation arises out of the refusal of the county board of education to assign petitioner, a resident of Kirkwood School District R-7, to Wright School in Ladue School District for the school year 1975 — 76, on written request of his father, whose three previous annual requests for assignment had been granted. This proceeding is authorized by Rule 100.08 and § 536.150, RSMo 1969. Both in the trial court and on appeal the parties have joined issue on the question whether the action of the board of education was arbitrary, capricious, unreasonable or an abuse of discretion.

Preliminarily, petitioner makes the point that the board of education had no discretion to determine the question of accessibility but was bound to grant the request for assignment to Wright School for a fourth year because the determination that Wright School is more accessible to petitioner had been previously decided in his favor from then-existing facts which had not changed. Appellant argues that the language of § 167.121 is mandatory and leaves no room for the exercise of discretion; that once the facts of location of pupil and schools are shown the board must grant the assignment. We disagree. The determination whether a school in another district is more accessible to a pupil in a given district is not solely a matter of geography, Haymart v. Freiberger, 498 S.W.2d 590 (Mo. App.1973); it depends upon the existence or nonexistence of various pertinent facts other than relative distances, and the application of the statutory “more accessible” test to those facts. Such a determination necessarily involves the exercise of discretion. It is not a mere ministerial act but calls for a quasi-judicial determination. Ordinarily the courts cannot compel the exercise of discretion in a particular manner, by the coercion of a judicial decree, see State ex rel. Rock Road Frontage, Inc. v. Davis, 444 S.W.2d 43, 46[1] (Mo.App.1969), but Rule 100.08 and § 536.150 provide an exception where the administrative decision is unreasonable, arbitrary or capricious or involves an abuse of discretion.

On this point petitioner takes the further position, without citation of authority, that the question whether Wright School was more accessible was settled, determined and the matter closed when the county superintendent of schools made a factual declaration to that effect in 1972, a factual determination' reaffirmed in 1973 and 1974; that “from then on, there was neither discretion nor question that the Wright School was so located to petitioner as to be more accessible.” In effect appellant’s position is that the matter is res judicata. We find no basis for this contention. The determinations of the county superintendent of schools were made in annual stops. Petitioner’s father recognized this by renewing his request annually. While, as petitioner points out, there was no interim change in the location of petitioner’s place of residence or in the locations of the schools, these are not the only considerations. Many other factors are to be weighed, and at the time of any annual request the board of education may and should take into consideration any changes in other basic factors of which the board has knowledge or which may be brought to its attention.

An allied question is appellant’s contention that the court erred in failing to find that the order of the county superintendent of schools was not revocable upon passage of Laws 1973, p. 230, § 1, without a hearing, without established procedures for revocation, and without investigating and taking into consideration the numerous “foundation elements” it should have considered in making a determination; and that the board in so acting violated petitioner’s right to due process of law under Art. I, § 10 of the Constitution of Missouri and the Fourteenth Amendment to the Constitution of the United States. Appellant objects that the board acted in a vacuum and in secret, without investigation and without established procedures subject to review and test; that an assignment once made continues for the balance of the educational program offered at the nearest school and therefore petitioner has a constitutional right to a continuation of the educational program at Wright School, where he has developed strong ties to his classmates, teachers and staff; that interruption of the educational course at that school violates petitioner’s constitutional right to due process of law.

The action of the county superintendent of schools in annually granting petitioner’s annually-made requests for assignment did not give petitioner a vested right to such an assignment in future years. School Dist. of Mexico, Mo. v. Maple Grove School Dist., 359 S.W.2d 743, 747[7] (Mo. 1962), indicates that there are circumstances in which an assignment of a pupil to take effect in the future is within the power of the authority making such an order, as long as the order remains unrevoked, but in the case before us the county superintendent of school did not make an assignment of petitioner in the future, beyond the ensuing year. Petitioner’s complaint that the board of education did not investigate and take into consideration twenty-one listed factors pertinent to the inquiry does not necessarily establish that the action of the board was arbitrary, capricious and unreasonable. When petitioner’s father requested the board to assign petitioner to Wright School it was not the duty or obligation of the board to conduct an independent investigation, or send out emissaries and investigators to report on all of the many factors involved. Its duty was to consider and act on the basis of all pertinent facts of which it had knowledge or information, but it was not up to the board to make a case for petitioner. The burden of proof was on petitioner to satisfy the board that Wright School was more accessible. While the board did not give petitioner or his father notice of the meeting at which the order of refusal was made, notice is not required under § 167.121, Red School Dist. No. 1 v. West Alton School Dist. No. 2, 162 S.W.2d 305, 1. c. 306[1] (Mo.App.1942) and further, petitioner’s father actually appeared at that meeting and therefore his appearance constituted a waiver of notice. May Department Stores Co. v. State Tax Commission, 308 S.W.2d 748, 759[8] (Mo.1958). The board did not act in a vacuum or in secret. It was an open meeting at which petitioner’s father appeared in person. He was granted an opportunity to be heard and he presented reasons in support of the assignment of petitioner to Wright School for the ensuing year. That petitioner has prospered and developed favorably in the educational program at Wright School gives him no right to continuance of that program through the sixth grade, as he contends. Under § 167.121 the question before the board was not whether petitioner was happily adjusted and making progress in the educational program at Wright School. The pertinent question was that of accessibility.

Appellant’s second point is that the court erred in ruling that the evidence adduced by respondents in the trial of the mandamus action was sufficient (to justify refusal of petitioner’s request for assignment), and erred in its finding that the evidence presented by petitioner was insufficient to show that the action of the board was arbitrary, capricious and unreasonable; that the board was not informed concerning, and did not take into consideration, information of a material nature bearing on the question of accessibility and therefore its refusal of petitioner’s application was arbitrary, capricious and unreasonable. The scope of review in this type of proceeding is broad. See State ex rel. Walmar Investment Co. v. Mueller, 512 S.W.2d 180, 182 — 183[1] (Mo.App.1974), and Milberg v. Sanders, 524 S.W.2d 441, 442 (Mo.App.1975). Under Rule 73.01, we review this court-tried case, upon both the law and the evidence, giving due regard to the opportunity of the trial court to judge of the credibility of the witnesses. It is our duty to sustain the judgment of the trial 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. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976). Under the prescribed scope of review we sustain the judgment of the trial court.

Relator’s home in Frontenac is located in Kirkwood School District R-7, near the line dividing that district from the School District of Ladue. The elementary school nearest relator’s residence is Wright School, in the Ladue district, which is 1.8 miles distant. The nearest elementary school located in the Kirkwood district is Westchester School, which is 2.7 miles distant. For the school years of 1972 — 73, 1973-74 and 1974-75 relator was assigned to Wright School in the Ladue district. His father made application each year for assignment, directing his application to the county superintendent of schools, in whom the authority to make such assignments was vested until July 1, 1974, the effective date of Laws 1973, p. 230, § 1, from which date the authority has been vested in the county board of education. Again acting for his son, Charles M. M. Shepherd on April 23, 1975 requested the county board of education to make a like assignment for the 1975-1976 school year. Although not notified of or invited to the meeting of the board of education at which action was taken on this and three other like applications, Mr. Shepherd attended a meeting on June 9, 1975 and orally presented reasons for the proposed assignment. The record does not reveal what reasons he presented on that occasion. In addition to what Mr. Shepherd had to say the board, in reaching its decision, took into consideration petitioner’s prior history; Mr. Shepherd’s letter requesting assignment; a letter from the Kirkwood School Board indicating that during the ensuing year Kirkwood district would supply bus transportation to students living more than one mile from schools in that district, and various other factors testified to by Wilbert Diehm, Vice-President of the St. Louis County Board of Education at the mandamus hearing. He said the board had a map showing the routes to the two schools; that the board was acquainted with the distances by automobile and by bus from petitioner’s home to the two schools on the most-traveled roads; that the difference was .9 of a mile; that in addition to relative distances the board discussed many things relating to “what is best for the child,” including conditions presenting hazards to the child — safety—, the time factor, convenience of the child “and all the many things that might enter into it.”

The arrival time at the pickup point .3 of a mile from petitioner’s house is 8:14 and arrival time at Westchester School is 8:27 a.m. It leaves the school at 3:30 and arrives at the pickup point at 3:40 to 3:45 p.m. The distance from the pickup point to Wright School is 1.4 miles and the distance from the pickup point to Westchester School over the bus route is 3.9 miles. The board unanimously voted to deny the application for assignment. Both in its minutes and in a letter sent Mr. Shepherd the reason given for its action was that “ * * * the Board has been reliably informed that the Kirkwood District will provide pupil transportation for their schools. Therefore, the Board feels that assignment is no longer necessary.”

On the whole case, considering not only the admitted evidence but also that contained in the offers of proof refused by the trial court, we hold that the board of education did not act arbitrarily, capriciously or unreasonably and was not guilty of an abuse of discretion, in denying petitioner’s request to be assigned out of his home district of Kirkwood to Wright School in the Ladue district. The new factor not present when the three previous requests for assignment were granted, i.e., that bus transportation to Westchester School was to be provided during the coming year, afforded a reasonable basis for the board to dispose of the request as it did in this particular case, where the difference in the distance between petitioner’s home and each of the two schools is minimal; where the two schools are located in a metropolitan area serviced by modern, paved streets; where the travel time on the bus each way does not exceed 15 minutes; where there is no demonstrated material difference in the factor of child safety in going to or returning from either school, and no showing that petitioner’s ability to utilize the services available to him at Wright School would be impaired by requiring him to attend Westchester School. The latter was a factor for consideration in Haymart v. Freiberger, supra, 498 S.W.2d l. c. 593.

As indicated above, we have taken into consideration the evidence petitioner claims was erroneously excluded by the trial court on various offers of proof, viz., that there was no bus company or bus service in existence on June 9, 1975, and the consequent lack of ability of Kirkwood District to provide bus service at that time (it is not contended that bus service was not actually provided during the 1975-76 school term); records bearing on the contention that the sole criteria in determining pupil transfer was whether busing was available; hardships on petitioner and family in participating in extracurricular school activities in the Kirkwood district; places of employment, trade area and general activities of petitioner’s parents in relation to Wright School, and their participation in Wright School activities; location of Wright School as a convenience for petitioner’s sisters, who attend private schools in the vicinity; physical and medical problems and handicaps of petitioner’s mother as affecting her ability to provide transportation and participate in petitioner’s educational process, and “the subject of the general convenience and accessibility of the school to petitioner and to his parents * * *.” There having been substantial evidence to support the action of the board in determining in effect that Westchester School was more accessible than Wright School, the existence of other facts which would (or might) support a contrary conclusion does not render the board’s decision arbitrary, capricious, unreasonable, or an abuse of discretion. Ott v. United States Board of Parole, 324 F.Supp. 1034, 1037[4] (W.D.Mo.1971).

Petitioner’s complaint that the board was not informed concerning and did not consider the twenty-one factors explored by petitioner at the mandamus hearing and listed seriatim in petitioner’s brief does not compel a finding of arbitrariness. If presented they would have been considered by the board, according to its vice-president, and the responsibility for presenting them was that of petitioner and his representatives. Furthermore, whether or not the board was apprised of these factors, they were fully aired at the mandamus hearing in circuit court, were considered by the circuit court, and have been considered in determining this appeal.

Nor did the court err in failing to find that respondents are barred by laches in failing to take action at their first opportunity on July 1, 1974, when the law first gave them the authority to rule on such matters. Petitioner claims he was thereby subjected to the injustice of allowing him to continue his schooling at Wright School for a third year, thereby strengthening his ties to the school, teachers, staff and classmates. Laches is an affirmative defense which must be set forth affirmatively in the pleadings. Rule 55.08. Petitioner did not raise the issue of laches in his petition or reply and made no mention of the subject in his motion for new trial. The point is raised for the first time on appeal. “It is elementary that we will not consider matters raised for the first time on appeal and will not convict the trial court of error on something on which it was not accorded an opportunity to rule.” Bennett v. Kitchin, 400 S.W.2d 97, 103 (Mo.1966).

Treating the motion to dismiss the petition for the writ of mandamus as a motion to quash the alternative writ of mandamus, and the order of dismissal as an order quashing the alternative writ, the order is affirmed.

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

      . “If any pupil is so located that a school in another district is more accessible, the county board of education shall assign the pupil to the other district. * * * ”

      . “Review by Injunction or Original Writ, When — Scope

        “(a) Review by Injunction — Original Writ or Other Action — Uncontested Cases. When any administrative officer or body existing under the constitution or by statute or by municipal charter or ordinance shall have rendered a decision which is not subject to administrative review, determining the legal rights, duties or privileges of any person, including the denial or revocation of a license, and there is no other provision for judicial inquiry into or review of such decision, such decision may be reviewed by suit for injunction, certiorari, mandamus, prohibition or other appropriate action, and in any such review proceeding the court may determine the facts relevant to the question whether such person at the time of such decision was subject to such legal duty, or had such right, or was entitled to such privilege, and may hear such evidence on such question as may be properly adduced, and the court may determine whether such decision, in view of the facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary or capricious or involves an abuse of discretion; and the court shall render judgment accordingly, and may order the administrative officer or body to take such further action as it may be proper to require; but the court shall not substitute its discretion for discretion legally vested in such administrative officer or body, and in cases where the granting or withholding of a privilege is committed by law to the sole discretion of such administrative officer or body, such discretion lawfully exercised shall not be disturbed.

        “(b) Not Applicable to Contested Cases. Nothing in this Rule 100.03 shall apply to contested cases reviewable pursuant to Rules 100.-04 to 100.08.

        “(c) Powers Not Impaired. Nothing in this Rule shall be construed to impair any power to take summary action lawfully vested in any such administrative officer or body, or to limit the jurisdiction of any court or the scope of any remedy available in the absence of this section.”


source: Caselaw Access Project

author: ALDEN A. STOCKARD, Special Judge.

license: Public Domain

text:
    Robert A. BLACK, Appellant, v. The BOATMEN’S NATIONAL BANK OF ST. LOUIS, a corporation, as Co-Trustee Under Trusts of: Oscar E. Niedringhaus, Dated January 8, 1936, et al., Respondents.
    No. 36820.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 17, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Application to Transfer Denied Nov. 8, 1976.

      William A. Ens and Don 0. Russell, St. Louis, for appellant.
    Donald U. Beimdiek, Larry B. Luber, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for respondents.
   ALDEN A. STOCKARD, Special Judge.

Plaintiff, Robert A. Black, has appealed from an adverse judgment in this court-tried case wherein he sought to recover $70,422.84 alleged to be due him as a bonus provided for by his employment contract.

At the 1964 annual meeting of the Board of Directors of Niedringhaus Metal Products Company (hereinafter referred to as the “Corporation”) plaintiff, who then was a member of that board, was elected vice president and chief executive officer, and his salary as such was fixed at $18,000.00 per year. At the same meeting the following resolution was adopted:

“BE IT RESOLVED, that an Executive bonus plan for Robert A. Black be and the same is hereby adopted as follows: In addition to the base salary Mr. Black is receiving, he is to receive as a bonus 25% of the first $20,000.00 per year of net profits, plus 10% per year of the net profits over $20,000.00; both percentages to be applied on the net profit figure before Federal and State tax. The plan shall be effective for the year 1964 and thereafter during Mr. Black’s continued employment, or until modified by this Board.”

In early 1967 the stockholders and directors voted to cease operations, and on February 13, 1967, the Corporation discontinued all manufacturing operations. The inventories and fixed assets were sold, resulting in a “gain” of $398,651.51. The pension trust for employees was liquidated and “excess funds” in the amount of $286,-533.89 were transferred to the Corporation. Plaintiff contends that these two items should be included in determining “net profits” for the year 1967. If this is done the bonus to which he is entitled is $70,-422.84. Without the two funds being so considered, the Corporation operated at a loss for the year 1967, and no bonus would be due.

After making findings of fact and conclusions of law, the trial court held that the two amounts above referred to were not to be included in arriving at “net profits” for 1967.

Appellant asserts (a) that the trial court erred in ruling “the contract * * * was ambiguous;” (b) that the term “ 'Net profits’ means what is left for the stockholders after paying current expenses, interest on debt and everything else which the stockholders, as a body corporate, are liable to pay;” and (c) if the contract is held to be ambiguous all aids to construction require a finding in his favor.

Because the parties are in disagreement as to the meaning of the contract does not necessarily result in it being ambiguous. Mickelberry’s Food Products Co. v. Haeussermann, 2A1 S.W.2d 731 (Mo.1952). But, in construing this corporate resolution, as in construing any other agreement, we must attempt to ascertain the intention of the parties. Harvey v. Missouri Valley Electric Co., 268 S.W.2d 820 (Mo.1954). In doing so we first look to the words used in the agreement. In this case we find little help there. The resolution only states that plaintiff’s bonus is to be a certain percentage of the “net profits” before Federal and State tax.

In Siteman v. Marine Petroleum Co., 511 S.W.2d 436, 439 (Mo.App.1974) this Court pointed out that “profit” is an “elastic and ambiguous” word, and it was then held: “We interpret the meaning of ‘net profits’ in accord with the contracting parties’ intention as to reach an interpretation that is fair and reasonable considering ‘the relationship of the parties, the subject matter of the contract, the usages of the business, the surrounding facts and circumstances attending the execution of the contract and its interpretation-by the parties.’ ” See also Harvey v. Missouri Valley Electric Co., supra.

Plaintiff argues citing Warren v. King, 108 U.S. 389, 2 S.Ct. 789, 27 L.Ed. 769 (1883), that “net profits” means what is left after paying certain expenses. But, he does not indicate from what these payments are to be deducted. That is the question in this case, and since the language of the resolution does not aid us the meaning of the resolution is ambiguous. We must attempt to determine what was intended by the parties, and to do this we necessarily must look to the purpose of the agreement and the circumstances in which the term “net profits” was used. Smith v. Peninsula House, Inc., 65 N.J.Super. 341, 167 A.2d 807 (1961); Smith v. Dunlap, 269 Ala. 97, 111 So.2d 1 (1959). See also the annotation at 49 A.L.R.2d 1129 entitled “construction of ‘net profits,’ ‘earnings,’ or the like, in provision for profit-sharing bonus for corporate officers or employees.”

The Corporation was engaged in the manufacture of steel barrels and steel doors. Prior to 1964 Lambert Niedringhaus was its president and chief executive officer. That year he decided to move to the State of Montana, and plaintiff was asked to “take over the running of the company.” The Corporation had been operating at a loss for several years. It was at the 1964 annual meeting that plaintiff was named the “chief executive officer” and his compensation fixed at $18,000 a year plus a bonus to be paid from “net profits” before Federal and State taxes. This clearly was an incentive bonus to encourage a profit-producing management. There was no discussion between plaintiff and Mr. Niedrin-ghaus or anyone else as to the way gains from the sale of assets should be treated. It is clear that liquidation of the Corporation was not then being considered, and therefore the resolution authorizing plaintiff’s employment and establishing an incentive bonus did not come about because of a contemplated liquidation of the Corporation. The bonus was intended to be compensation for profitable corporate management; not for liquidation of the Corporation.

When we consider the resolution as creating a profit incentive bonus, as we do, we should examine the source of the two funds from which plaintiff seeks to charge with the bonus. There is no indication or claim that the assets and inventories sold during liquidation and resulting in a “gain,” or that the “excess funds” received from the liquidation of the pension trust were created by or came into existence because of any managerial activity of plaintiff. The situation we have here is totally unlike that in Siteman v. Marine Petroleum Co., supra. There, in the course of the normal and usual operations of a going company, and presumably as a result of good management, a physical asset in the form of a terminal was sold at a substantial capital gain, and the proceeds used to further the “integral parts of Marine’s wholesale fuel business.” That activity was an essential and normal part of the operations of the company, and the person to receive a bonus based on net profits was employed as general manager to supervise those operations. It was clear that the bonus plan was intended by the parties to measure the compensation for those profitable operations. But, in this case plaintiff’s management had nothing to do with the creation of the two funds from which he seeks a bonus, and his claim cannot be supported on the basis that his managerial ability, which was the motivating reason for the bonus, brought about or added to these two funds.

We conclude that it was not the intention of the parties at the time of the adoption of the resolution that the bonus there authorized should be based on funds received by the Corporation as the result of its liquidation. In view of this conclusion, we need not discuss other contentions presented by respondents on this appeal.'

The judgment is affirmed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: CLEMENS, Presiding Judge.

text:
    Paul GLASTRIS, by his next friend, Respondent, v. UNION ELECTRIC COMPANY and Southwestern Bell Telephone Company, Appellants.
    Nos. 36909, 36910.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 17, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Application to Transfer Denied Nov. 8, 1976.

      James E. Hullverson, Hullverson, Hull-verson & Frank, Inc., St. Louis, for Paul Glastris.
    Leo E. Eickhoff, Jr., John D. Rahoy, St. Louis, for Southwestern Bell Telephone Co.
    Keefe, Schlafly, Griesedieck & Ferrell, Martin J. Toft, Jerry B. Wamser, Richard L. Adams, St. Louis, for Union Electric Co.
   CLEMENS, Presiding Judge.

Action by child-trespasser for personal injuries from contacting electrical wires on a 20-foot utility pole. Plaintiff submitted his case under § 339, Restatement of Torts, the modification of the attractive nuisance doctrine. Defendant utility companies appeal from plaintiff’s judgment, challenging the submissibility of his case and contending his verdict director was prejudicially erroneous.

Fourteen-year-old plaintiff Paul Glastris, admittedly a trespasser, received severe and extensive electrical burns by contact with defendant Union Electric Company’s 7200-volt transmission line on a utility pole owned by defendant Southwestern Bell Telephone Company.

The initial issues on appeal are defendants’ respective claims to a directed verdict, asserted lack of actionable negligence and plaintiff’s contributory negligence. Additionally, defendants assert trial errors. We first consider the evidence relating to defendants’ liability.

The Evidence. Plaintiff was injured on a hilly, wooded 78-acre tract in St. Louis County owned by defendant Parc Renaissance. A heavily populated residential area adjoins the wooded tract. Two sets of improvements are on the tract, one an abandoned, vandalized residence (the Steinbaum house) on the south 68 wooded acres; the other a pre-school nursery and horse stable across a creek on the north 10-acre pasture land.

Defendant Union Electric’s 7200-volt transmission line in use since 1930 ran northward along its easement to the Stein-baum home, which it served before partial abandonment in 1967. Unknown to plaintiff, this line extended on northward where it still carried electricity to the nursery school. Defendant Southwestern Bell’s telephone line, on the same line of poles, ran only to the Steinbaum house but had been out of service since the house had been abandoned.

Both of defendants' wires were attached to a series of 20-foot poles, owned by Southwestern Bell but used by both defendants under a “joint use agreement.”

The south 68 wooded acres of the Parc Renaissance tract was partly unfenced. The woods had been used for several years by the general public and particularly so by people of the adjoining residential areas. The tract was laced with trails and pathways, one of which ran along the pole line. The whole area was used without protest, mostly by children, for such activities as hiking, horseback and motorbike riding, picnics, tree houses and camping.

Plaintiff Paul Glastris had often gone into the wooded area for varying boyhood purposes and had seen the pole line. On February 1,1973 Paul and his friend David Germoth again went into the woods where they had been building a blind from which they could watch a nearby owl’s nest. On the way they talked about an electrical insulator David had found and the value of antique insulators. As the boys neared the fateful pole they were aware of loose wires strewn on the ground. One wire dangled loose from the pole to the ground. They also saw wires running along the pole line with a frayed covering and attached to cracked insulators. They had seen some of the poles marked with a “SW Bell” decal. From what Paul saw he believed all the wires were telephone lines and had been abandoned. Unknown to Paul, Union Electric’s transmission line was alive and carried current on beyond the abandoned Steinbaum house to serve the nursery school across the creek.

Paul decided to examine an insulator atop the pole to see if it was dated and antique. If so, he might have taken an insulator but had no tool to detach it.

The 20-foot pole was on sloping ground and was equipped with L-shaped climbing spikes, the lowest eight feet, eight inches above the ground. This pole was supported by an uninsulated guy wire extending from the ground to a bolt running through the pole at a point near the top. Due to retrograde amnesia, Paul could not recall how he reached the lowest climbing spike and his companion David was not watching then. But Paul did climb the pole. He stopped with his left hip against the guy wire bolt and reached toward an insulator. He last recalled his right hand being a foot away from the insulator. At that moment electricity sprang from Union Electric’s wire into Paul’s hand exited from his hip at the guy wire bolt and passed on down the guy wire to the ground.

Defendants’ respective points relied on differ and we address them separately.

Southwestern Bell’s Liability. Southwestern Bell contends the trial court erred in denying its motion for a directed verdict since it did not breach any duty it owed plaintiff-trespasser. That duty is no longer limited to the attractive nuisance doctrine which allowed recovery only when a dangerous condition induced a child to trespass in the first instance. That element of allurement has now been eliminated. Missouri now follows Restatement of Torts, 1st, § 339, which bases liability on the foreseeability of injury. Anderson v. Cahill, 485 S.W.2d 76[2] (Mo.1972).

Southwestern Bell contends it had no duty to plaintiff-trespasser since it had neither actual nor constructive knowledge of the potential danger to plaintiff arising from its pole on which defendant Union Electric maintained its own high tension wires, climbing steps and guy wire. The pole was in a heavily-wooded area, some 800 feet from a public road. It had last been used by Southwestern Bell for a telephone line to the Steinbaum residence, abandoned in 1967, some six years before plaintiff climbed the pole. There was not a word of evidence to show defendant Southwestern Bell ever actually knew of child trespassers using the wooded tract for any purpose.

Despite Southwestern Bell’s lack of actual knowledge of trespassing children on the 68-acre tract, plaintiff contends it had constructive knowledge thereof. This, on the ground Southwestern Bell had a continuing duty to inspect its pole during the six years after it had abandoned its telephone line. Plaintiff bases this argument on the Restatement of Torts (1st) words of § 339(b) concerning a condition which the possessor knows or should know. The words “should know” in Restatement (1st) have been changed in § 339 Restatement (2d) to read “has reason to know.” In its Comment, Restatement logically explains “the possessor is under no duty to make any investigation or inquiry as to whether children are trespassing, or are likely to trespass, until he is notified, or otherwise receives information, which would lead a reasonable man to that conclusion.”

Commenting on the words “should know” in Restatement (1st), Dean Prosser in Trespass ing Children, 47 Cal.L.Rev. 427 (1959); pp. 450-451, declared those words were an “error in drafting,” and do not mean to impose a duty on an owner “to investigate and ascertain the facts,” adding: “No case has ever held that the landowner is required to police his premises, or to make any inquiry, to discover whether there is a likelihood that children will trespass. On the contrary, the decisions are all agreed that unless he knows of the attractive character of the condition of his land, or of the past trespasses, or is at least chargeable with such knowledge, there is no liability. Given his knowledge of such facts, he is required to know as much as any ordinary man in the community about the habits of children, and their propensities to stray and intermeddle; but investigation or inquiry in the first instance is not demanded of him. The proper phrase, in the esoteric language of the Restatement, is ‘has reason to know.’ ”

We consider the remote, mid-woods location of Southwestern Bell’s pole, coupled with its complete lack of actual knowledge of trespassing children. The lowest climbing spike was eight feet, eight inches above ground level; the relatively inaccessible location of Union Electric’s transmission line was 20 feet above ground. In Donovan v. Union Electric Co., 454 S.W.2d 623[4, 8] (Mo.App.1970) we were confronted with an issue of an electric utility’s liability concerning foreseeability of injury in a comparably remote area. In denying liability we held: “Based upon this evidence, we do not believe that a jury reasonably could have found that defendant, in the exercise of the highest degree of care, should have foreseen the reasonable likelihood that plaintiff would be [using] this isolated area so as to make contact with the defendant’s transmission line.”

So it is here. The evidence fails to show Southwestern Bell had reason to know of plaintiff’s trespass or the probability of his being injured; hence, it did not breach a duty to plaintiff. We hold the trial court erred in denying Southwestern Bell’s motion for a directed verdict. Plaintiff’s judgment against Southwestern Bell must be reversed. We do not reach that defendant’s other points.

Directed Verdict for Union Electric. Defendant Union Electric contends the trial court erred in denying its motion for a directed verdict. This, on the limited ground plaintiff's evidence did not show he failed to realize danger “because of his youth.” That is an essential element of plaintiff’s case under § 339, Restatement of Torts (1st), requiring that “the children because of their youth do not discover the condition or realize the risk involved

The onus of Union Electric’s point is that by his own testimony plaintiff showed he was intelligent and understood the danger of electricity. From this premise Union Electric argues plaintiff failed to show the requisite element of “the childlike lack of comprehension of his danger because of his youth" citing Salanski v. Enright, 452 S.W.2d 143 (Mo.1970). We bear in mind the distracting factors that confronted Paul as he approached the point of danger and gave him a sense of safety — the downed telephone wires, the abandoned home, the deteriorated appearance of the power line and insulators and the absence of warning signs.

Although Paul abstractly knew of the danger of electricity, the factors confronting him tended to negate the presence of electricity. The Restatement comments to § 339 point out that even though young children may perceive a danger, their lack of judgment “may prevent them from realizing the full extent of the risk.”

Counsel for Union Electric cite no authority for us to declare as a matter of law that Paul’s youth was not a factor in exposing himself to danger. That would require a balancing of probabilities as to what an adult and a child would reasonably have done. We hold that is a jury issue. Compare Boyer v. Guidicy Marble, Terrazzo & Tile Co., 246 S.W.2d 742[8-10, 12-14] (Mo. 1952). On the stated ground of plaintiff’s youth, the trial court properly denied Union Electric’s motion for a directed verdict.

Proximate Cause. Defendant Union Electric further challenges the submissi-bility of plaintiff’s case against it. Its Point Relied On abstractly states: “The proximate cause of plaintiff’s injury was the negligence of Southwestern Bell Telephone Company.” This conclusory statement preserves nothing for review since it does not comply with Rule 84.04(d), requiring a point relied on to state wherein and why the trial court erred. The rule is to be strictly applied. Long v. Lincoln, 528 S.W.2d 512[1, 2] (Mo.App.1975). Compare Bennett v. Kitchen, 400 S.W.2d 97[1] (Mo. 1966), holding nothing is preserved for review by a point relied on stating without reasons that plaintiff was contributorily negligent. As in State ex rel. State Highway Commission v. City of Sullivan, 520 S.W.2d 186[10] (Mo.App.1975), the point is “obscure, abstract, unpersuasive” and does “not warrant discussion or consideration here.”

Plaintiff’s Verdict Director. Defendant Union Electric challenges plaintiff’s verdict-directing instruction, basically because it authorized a verdict for plaintiff if Union Electric failed to insulate its wire even though Union Electric had adequately isolated the wire from probable human contact. Plaintiff contends Union Electric has not preserved the point for review. Not so. In its motion for new trial Union Electric contended plaintiff’s verdict director misled and misdirected the jury by declaring it had a duty “to insulate the electric wire which was properly isolated.” And, in its amended Point Relied On, Union Electric contends the instruction erred by failing to require “a finding on whether the wires . were properly isolated ... a material controverted factual question.” We look to the merits of Union Electric’s challenge to plaintiff’s verdict director.

As said, Union Electric contends the instruction directed a verdict against Union Electric if it failed to use ordinary care to insulate its high voltage wire, even though Union Electric had otherwise exercised due care by isolating its wire so as to avoid an injury it could reasonably have anticipated. The instruction:

Your verdict must be for the plaintiff and against Union Electric Company if you believe:
First, there was an uninsulated, high voltage electric wire on the pole, and the guy wire had no insulator to prevent it from becoming a ground, and there was no warning sign of any kind on the pole, and
Second, Union Electric Company knew or should have known that young children were likely to climb the pole, and
Third, Union Electric Company knew or should have known of the conditions set out in paragraph first and realized or should have realized that such conditions involved an unreasonable risk of death or serious bodily harm to such children from electrical shock, and
Fourth, plaintiff because of his youth did not realize that such a risk existed, and
Fifth, the utility to Union Electric Company of maintaining such conditions set out in paragraph first and the burden of eliminating the danger were slight as compared with the risk to young children involved therein, and
Sixth, Union Electric Company failed to use ordinary care either to insulate the electric wire or place an insulator in the guy wire or to maintain a warning sign on the pole which would be reasonably adequate to enable young children to protect themselves from the danger, and
Seventh, as a direct result of such failure, plaintiff was injured,
Unless you believe plaintiff is not entitled to recover by reason of Instruction No. 9.

Note that this verdict director first con-junctively hypothesized the undisputed facts of Union Electric’s uninsulated electric and guy wires and the absence of any warning sign. The instruction then directed a verdict for plaintiff if the jury believed Union Electric failed to use ordinary care by either of the evidentiary means of failing to insulate its electric wire or failing to insulate its guy wire or failing to maintain a warning sign. By this disjunctive phraseology the instruction authorized a verdict against Union Electric if the jury merely found it negligently failed to insulate its high voltage wire.

Union Electric strenuously argues its liability cannot be based solely on its failure to insulate its high tension line; that it could also discharge its duty of ordinary care to plaintiff by so isolating its wire as to avoid any injury it could reasonably have foreseen. That substantive point is soundly supported by Missouri decisions holding an electric utility may discharge its duty either by insulating its wires or by isolating them by placement beyond probable reach.

As persuasively expressed in Empire District Electric Co. v. Harris, 82 F.2d 48 (Cir. Ct.App., 8th Cir., 1936), the defendant electric utility “was not confined to a choice of the means of avoiding danger and injury . It might as effectively use others, among which placing the danger out of probable reach is quite usual. That is why charged wires are placed on high poles. The same thought and action govern every parent in placing dangerous things where they reasonably think their children cannot get them.”

The cited cases, however, dealt with the submissibility of an injured plaintiff’s case. Here, in contrast, the issue is the propriety of plaintiff’s verdict-directing instruction submitting the issue of Union Electric’s liability under Restatement of Torts, § 339.

We examine that facet of Union Electric’s liability. Our attractive nuisance doctrine has been replaced by adoption of Restatement of Torts, § 339. Anderson v. Cahill, 485 S.W.2d 76 (Mo.1972). Restatement eliminates the former “attractive nui-sanee doctrine” requirement of showing the defendant maintained a visible condition that initially lured children into trespassing. For that, § 339 substitutes a requirement (clearly shown here as to Union Electric) that defendant has actual or constructive knowledge of the likelihood of trespassing children. Subsections (b) and (e) of Restatement, § 339, further require evidence that defendant realize or should realize probable danger to intermeddling children, and thereafter failed to exercise reasonable care to protect them. Thus, defendant’s foreseeability of injury is an essential, initial element under § 339, just as it was under the attractive nuisance doctrine. Foreseeability of injury, vel non, logically includes physical factors contributing to or detracting from the probability of injury to a trespassing child.

Union Electric does not challenge the inclusion of noninsulation in plaintiff’s verdict director. Instead, it contends the instruction erred by omitting a finding excusing it from liability if its wires were properly isolated, this because nonisolation was an essential element of plaintiff’s case.

Considering its disjunctive phraseology as to Union Electric’s duty, it told the jury Union Electric was liable if the jury believed the single evidentiary fact that it failed to use ordinary care to insulate its wire. That direction from the court would lead the jury to believe it should find against Union Electric without considering evidence that Union Electric had exercised ordinary care by adequately isolating its wire. We hold the instruction erred preju-dicially by misdirecting.

Submission on Ultimate Facts. Since the case is being remanded for a new trial against Union Electric, we comment further on plaintiff's verdict director. Of necessity it was a not-in-MAI submission. Plaintiff’s counsel cites no precise precedent in support of the verdict director, nor do we find any. The difficulty here is that plaintiff’s verdict director, contrary to MAI Rule 70.01(e), submits Union Electric’s liability on the evidentiary facts of insulation, etc., rather than on the ultimate fact of negligently maintaining a condition that was an unreasonable risk to plaintiff.

The adoption of MAI forged a major change in verdict-directing instructions. This change ended the old method of submitting detailed evidentiary facts and initiated the method of submitting “verdict directing instructions reduced to the ultimate issues.” (See Report to Mo.Sup.Ct., MAI pp. xxiii, xxiv; Rule 70.01(a) and (e); and How to Use This Book, MAI p. L). This new principle of submitting ultimate issues is followed in MAI instructions, which set the framework for not-in-MAI instructions. Leathem v. Longenecker, 405 S.W.2d 873[5, 6] (Mo.1966). For examples, note the ultimate issue submissions in the Owner and Occupiers of Land Instructions, MAI 22.01 (Attractive Nuisance), MAI 22.02 (Dangerous Condition) and MAI 22.03 (Invitee Injured). For ease law applying this principle of submitting ultimate rather than evidentiary facts, see Zipp v. Gasen’s Drug Stores, Inc., 449 S.W.2d 612[2-4] (Mo.1970), Bonenberger v. Sears, Roebuck and Company, 449 S.W.2d 385[4] (Mo.App.1969), and Jackson v. Cherokee Drug Company, 434 S.W.2d 257[4 — 5] (Mo.App.1968). (Under such a submission of the ultimate fact, the evidentiary facts are appropriate subjects for argument to the jury.)

Since we are ordering a new trial, we address Union Electric’s additional challenge to plaintiff’s verdict director on the ground it did not require a finding plaintiff had failed to realize the risk that confronted him. In essence, Union Electric argues that the verdict director erred by not following the language of paragraph Fourth of Restatement, § 339. Instead of using that precise language, plaintiff submitted; “Fourth, plaintiff because of his youth did not realize that such a risk existed.” “Such a risk” was that referred to in paragraph Third of plaintiff’s verdict director submitted as “an unreasonable risk of death or serious bodily harm to such children from electrical shock” created by conditions referred to in paragraph First. “Such children” referred to those described in paragraph Second whom Union Electric knew or should have known were likely to climb the pole. In instructing under Restatement, § 339, its language must be modified by submitting ultimate issues to fit the variety of ways by which children are injured. Considering plaintiff’s verdict director as a whole we do not find it is subject to Union Electric’s additional challenge.

Trial Errors and Damages. Union Elec-. trie raises two issues concerning trial evidence: Plaintiff’s reference to the National Electrical Safety Code and expert testimony on the amount of plaintiff’s probable loss of earnings. Plaintiff counters by contending the issues were not timely raised in the trial court. On retrial, it is unlikely there two issues will arise in the same context, and we therefore decline to rule either point. Union Electric also contends plaintiff’s $1,350,000 verdict was excessive. We will not address that issue since the cause is being remanded for a new trial on all issues. Declining to pass on these points accords with the words of Judge Lamm in West v. Spencer, ⅞38 Mo. 65, 141 S.W. 586[2] (1911): “It is a good rule not to decide to-day what you might better decide to-morrow.”

Judgment against Southwestern Bell Telephone Company is reversed; judgment against Union Electric Company is reversed and the cause is remanded for a new trial on all issues. Since each defendant prevailed on appeal, costs in accordance with Rule 77.16, are to be taxed against plaintiff.

SMITH and WEIER, JJ., concur.

      . Verdict and judgment were against plaintiff as to defendant landowner, Parc Renaissance, Inc., and he does not appeal from that adverse judgment.

      . Burk v. Missouri Power & Light Company, 420 S.W.2d 274[2-5] (Mo.1967); Donovan v. Union Electric Co., 454 S.W.2d 623[2, 3] (Mo. App.1970); Foote v. Scott-New Madrid-Mississippi Electric Co-op., 359 S.W.2d 40[3] (Mo. App.1962).

      . Gladden v. Missouri Public Service Company, 277 S.W.2d 510[10-13] (Mo. 1955); Donovan v. Union Electric Company, 454 S.W.2d 623[4] (Mo.App.1970).

      . Zuber v. Clarkson Const. Co., 363 Mo. 352, 251 S.W.2d 52[2-5] (1952).


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Kenneth Eugene DITTMAN, Defendant-Appellant.
    No. 37312.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 17, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Application to Transfer Denied Nov. 8, 1976.
    Jay V. White, Rolla, for defendant-appellant.

      John B. Berkemeyer, Pros. Atty., Gasco-nade County, Hermann, for plaintiff-respondent.
   GUNN, Judge.

Defendant was charged with a second offense of operating a motor vehicle while intoxicated — a § 564.440 RSMo 1969 violation. He was convicted by a jury and sentenced to six months in the county jail. On appeal, the only issue raised relates to whether there was sufficient proof to support a finding of a prior conviction for driving while intoxicated. We find the record sufficient to support defendant’s pri- or conviction and affirm the judgment.

Defendant does not dispute the sufficiency of the evidence that he was driving while intoxicated. His only challenge was whether the following certified copy of the Osage County Magistrate Court record is sufficient to establish his prior § 564.440 violation:

“State of Missouri, Plaintiff vs Kenneth Eugene Dittman, Defendant
Case No. 5826 In the Magistrate Court of Osage County, Mo
February 24th 1971.
Comes now Laverne Moeller and files traffic ticket charging the defendant Kenneth Eugene Dittman with upon 23 February 1971 at and within Osage County, Missouri of driving while intoxicated test B. A. .15% and comes now the defendant and appearing voluntarily and after being duly informed of his rights under the law and the nature of the charge the defendant waives trial by jury and defense by counsel enters his plea of guilty to driving while intoxicated as charged in the traffic ticket filed and he is ordered to pay a fine of $100.00 and costs; sheriff is ordered to collect the said fine and costs.
Done this 24th day of February 1971.
Clem C. Gove, Magistrate Judge Linn, Missouri.” Osage County

The thrust of defendant’s attack on the sufficiency of the foregoing record as evidence of a first offense conviction seems to be two-fold: 1) that the first conviction is faulty, because there was no showing that the prosecuting attorney signed the information against the defendant in the first offense; 2) that the record fails to show that the defendant knowingly and voluntarily waived his constitutional rights as stated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Neither argument is meritorious.

The identical argument raised by defendant here as to the sufficiency of proof of the prior conviction was considered answered in State v. Goff, 449 S.W.2d 591 (Mo. banc 1970), and State v. Hanson, 493 S.W.2d 8 (Mo.App.1973). From State v. Goff, supra, we find that the certified copy of the prior judgment against defendant, which is presumed to be regular and which is in proper form and substance, serves as sufficient basis to support the establishment of a prior conviction.

Defendant’s contention that he was denied his constitutional rights is also too feeble to stand. In State v. Hanson, supra, to establish a prior § 564.440 conviction, the State relied on a certified copy of the magistrate court record showing that the defendant — as in this case — had waived counsel and trial by jury and pleaded guilty to driving while intoxicated. On the appeal of his second conviction, the defendant in State v. Hanson, supra — as in this case — argued that the evidence of the first conviction was insufficient, for there was no showing that he had been represented by counsel. The court in Hanson responded to the defendant’s argument by stating, id. at 13: “But the record of that case [the record of the first conviction] shows that defendant was advised of his right to counsel but, in effect, waived that right and stated that he desired to plead guilty.” So, too, in this ease, the record shows that the defendant was advised of his rights, waived them, and pleaded guilty.

In State v. Goff, supra, after reviewing the certified copy of the defendant’s prior conviction after a guilty plea, it was said, id. at 597:

“There is no violation of the defendant’s constitutional right to legal counsel apparent on the face of the judgment. On the contrary, compliance and observance of the right is shown. By his failure to take timely advantage of the various remedies provided to set aside the judgment for invalidities not apparent on the face of the judgment, the defendant has waived any such defects as a ground of objection to the admission of the certified copies of the judgment as evidence of a prior conviction.”

The foregoing is particularly appropriate to the factual situation in this ease.

We find no irregularities or deprivation of defendant’s constitutional rights on the face of the certified copy of the judgment of defendant’s prior § 564.440 conviction. The record of defendant’s prior § 564.440 conviction is sufficient as basis for assessing a second conviction judgment against defendant. State v. Goff, supra; State v. Johnson, 504 S.W.2d 23 (Mo.1973).

The judgment is affirmed.

SIMEONE, P. J., and KELLY, J., concur.

      . We believe it appropriate to comment that the respondent’s brief was helpful to this court and contained the fruits of thorough research.


author: McMILLIAN, Judge.

text:
    CHEMICAL FIREPROOFING CORPORATION, an Ohio Corporation, d/b/a Acme Cleaning Service Division, Plaintiff-Respondent, v. Herbert B. BRONSKA et al., Defendants-Appellants.
    No. 37184.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 24, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.

      Friedman & Fredericks, Melvin Friedman, Stuart J. Radloff, Clayton, for defendants-appellants.
    Cook, Murphy, Lance & Mayer, D. Jeff Lance, Daniel J. Murphy, St. Louis, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellant Herbert B. Bronska (Bronska) appeals from a decree enjoining him for a period of one (1) year up to June 29, 1975, from engaging in a business similar to that of respondent, to-wit: the business of a cleaning contractor performing industrial, commercial, or residential cleaning of air-conditioning equipment and ducts, etc., in the states of Missouri and Illinois; and for two (2) years from soliciting, selling, or contracting to furnish services to any of respondent’s customers. Appellant Nancy M. Bronska, wife of Herbert B. Bronska, and Engineered Cleaning Services, Inc., a corporation (ECS), appeal from that portion of the decree enjoining them from conspiring with Herbert B. Bronska to violate the above decree or in any way interfering with the contractual rights of respondent.

Appellants seek a reversal for the following reasons: (1) that the restrictive employment contract had been terminated in April, 1972; (2) that respondent had breached the contract; (3) that the decree failed to delineate with specificity what could and could not be done; and (4) that Nancy Bronska should not have been included in the decree. We affirm.

Respondent, Chemical Fireproofing, is an Ohio corporation (CFC) engaged' in business as a cleaning contractor oriented to fire protection. It specializes in industrial, commercial, and some residential cleaning of air-conditioning equipment and duets, kitchen exhausts, tanks, overhead structures, etc.

CFC hired Bronska to open the St. Louis office. He commenced work for CFC on February 1, 1963. Also on February 1, 1963, CFC and Bronska executed the restrictive employment contract now in question. In 1966 both parties executed another contract backdated to February 1, 1963. The 1966 contract differed from the 1963 contract only to the extent that the area was limited to territory in the states of Missouri and Illinois, and the commission was reduced to twenty (20) percent of sales or services.

The contract provided Bronska with a right to draw against his account to the extent of $150 weekly. Both parties were granted the right to terminate the contract at the end of any week upon giving notice to the other party — that after termination of the agreement, Bronska was not to engage in a business similar to CFC’s in Missouri or Illinois for a period of one year and for a period of two years Bronska was not to deal with customers of CFC’s in Missouri and Illinois. Commission on sales and services was to be at the rate of twenty (20) percent and that in the event compensation under the contract was changed by mutual consent all the other terms of the contract were to remain in full force and effect.

In August 1971 a meeting was held in the Ohio office between CFC’s president, vice-president, Bronska and the director of the Cincinnati branch office, who was Bronska’s father-in-law. The meeting disclosed that for three or four years, the St. Louis office was losing money because of its high operating and selling costs. At this meeting, Bronska was told to hold down expenses to fifty (50) percent or less of total revenue; that if the expenses were fifty percent or less, he would receive a base commission rate of twenty percent; and that if expenses were in excess of fifty percent, the base rate for commissions would be reduced to fifteen percent.

Bronska testified that he told them to close the office if it was losing money and that he would not work for a fifteen percent commission. The meeting closed on the note that for the balance of 1971 things would remain as they were, but at the end of the year the situation would be re-evaluated. After the conference, Bronska returned to St. Louis and continued to work for CFC.

In February, 1972, when Bronska received his January, 1972, commission, based on the fifteen percent rate, he wrote the president protesting that he (Bronska) had not agreed to the five percent reduction and that he expected to receive the rest of his commission. The president responded that CFC would continue to use the fifty percent formula which was discussed with Bronska on two prior meetings in St. Louis and that the proposed fifty percent formula was known to everyone since the August, 1971, meeting. After the receipt of the letter, Bronska continued to work, and in March, 1972, he was paid his commission at the fifteen percent base rate.

On April 1, 1972, Bronska wrote a letter to CFC stating that he had not agreed to a reduction in commission and he had not received the amount due him under his contract; that he deemed CFC to have breached the contract; that he (Bronska) was no longer bound by any of the contract provisions; that he intended to hold them liable for the full amount of his commission due; and “. . . I will remain available if satisfactory arrangements are made until no later than April 28, 1972, to give you an opportunity to make whatever arrangements you may want with reference to the operations of the office.” (Emphasis added.)

On April 7, 1972, CFC’s president telephoned Bronska and told him he would meet him the last week of April in St. Louis and work something out. In confirmation of the president’s telephone call, Bronska wrote back, “I shall remain active in the operation of the office until April 28, 1972 . and I shall continue on the same arrangement as set forth in my employment contract dated February 1, 1963 regarding any commissions relative to sales and services performed during the month of April, 1972.” (Emphasis added.)

At the end of the monthly meeting held in April, the fifty percent formula was discussed, and the president agreed to pay Bronska money from the president’s personal fund to ease the transaction, i.e., the five percent difference in commissions. From January, 1972, until June 29, 1974, the date of Bronska’s departure from the company, the fifty percent formula was used. In some months Bronska met the goal and received twenty percent commission, and in other months he did not and received a fifteen percent commission. As agreed, in order to ease the transaction, the president gave his personal checks for $850 and $450 to Bronska.

In June, 1974, CFC proposed a new contract to Bronska, but negotiations broke down and Bronska left the company.

Before leaving CFC, Bronska began to solicit some of CFC’s customers. On July 8, 1974, ECS was formed. Half of the stock was issued to Bronska, the other half to Nancy, his wife. On July 12,1974, Bronska transferred all his shares to Nancy as a gift. Bronska is the president and treasurer of ECS, and Nancy, the vice-president and secretary.

ECS is engaged in the same business as CFC. In fact, Bronska took CFC’s contract forms, work order forms, and request for estimate forms, and copied or modified them slightly and used them in competition with CFC. In some instances Bronska used the actual form of CFC and simply scratched out CFC’s name by hand and substituted ECS’s name. The evidence is conclusive that ECS engages in the same business as CFC, and that Bronska solicits and makes contracts in Missouri with CFC’s customers.

The core issues for decision are: (1) when did Bronska terminate his employment with CFC; and (2) did CFC breach the employment contract by unilaterally changing the mode of compensation. In Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976), the Supreme Court set out the parameters of our appellate review under Rule 73.01(a). The court stated that the judgment or decree “. . . will be sustained ... [1] unless there is no substantial evidence to support it, [2] unless it is against the weight of the evidence, [3] unless it erroneously declares the law, or [4] unless it erroneously applies the law ..” In regard to reversal for being against the weight of the evidence, we were cautioned to do so only when there was a firm belief that the decree or judgment was wrong. Undisturbed was section (b) of Rule 73.01, which permits us to give due deference to the opportunity of the trial court to resolve questions of credibility of witnesses.

Applying the above standards to the evidence presented in this case, we are impelled to conclude that the decision entered by the trial court was correct.

Bronska offers to support his position by his letter of April 1, 1972, which he contends abrogated and terminated his employment under the February, 1963, contract, as amended in 1966. To refute Bronska’s contention, respondent offers what transpired at the August, 1971, meeting; its telephone call on April 7, 1972; Bronska’s letter in response thereto; the April 26 and 27,1972, meeting; and Bronska’s course of conduct from April 1, 1972, to June 29, 1974.

Bronska cites, for support of his April 1, 1972, termination, the case of Baker v. Missouri Nat Life Ins. Co., 372 S.W.2d 147, 152—53 (Mo.App. 1963). In Baker, at page 152, the court stated, . . To be effective, a notice of termination must be clear, definite, unambiguous and unequivocal, and it properly may not be so characterized ‘unless its meaning can be apprehended without explanation or argument . . . Granted, when Bronska’s letter stated unequivocally that (1) he deemed CFC to have breached the contract, he was no longer bound by it, and he was surrendering to them their property, he met the Baker test. But when he stated in the last sentence of his letter, “I will remain available if satisfactory arrangements are made until no later than April 28, 1972,” he destroyed the clarity and definiteness posited by the Baker test, leaving the letter ambiguous and equivocal as to the date he intended to end his employment. To reinforce our doubts, we note that even Bronska was not too sure because at the hearing on the temporary injunction he himself testified that he resigned on April 28, 1972. But at the trial on the merits, he fixed the date of his resignation at April 1, 1972. Bronska’s letter in response to CFC’s telephone calls to him on April 7, 1972, informing him that something would be worked out sheds some light on his termination date. In his letter Bronska wrote, “I shall remain active in the operation of the office until April 28, 1972 . and I shall continue on the same arrangements . in . contract dated February 1, 1963.” Surely if he had terminated his employment and ceased working for CFC on April 1,1972, he would not have used the above language. Company orders, sale documents and payroll records indicate that Bronska worked full time beyond April 1, 1972.

In our view, giving due deference to the trial court to judge the credibility of the witnesses, we hold that the trial court’s finding that the employment contract was not terminated on April 1, 1972, was supported by substantial evidence and was not against the weight of the evidence. Consequently, we rule this point against appellant Bronska. While it is true that Bronska on April 1, 1972, expressed an intention to terminate his contract, the court’s finding that the parties had resolved their differences and Bronska agreed to remain at work, was correct.

Next we consider appellant’s contention that CFC unilaterally had breached its contract. We note that this issue was largely an ipsue of fact. And, on conflicting testimony the court resolved this issue against Bronska. Moreover, and of equal importance, Bronska’s subsequent conduct does not indicate an intention that either the contract or his employment be terminated. From the testimony the court could have reasonably found that at the August, 1971, meeting when CFC proposed the fifty percent formula, that Bronska protested. But in resolving the conflicting evidence on this issue, the court could have reasonably found, after the vice-president agreed not to implement the fifty percent formula until the end of 1971 at which time the situation would be re-evaluated, that Bronska agreed to the fifty percent formula. Both the president and vice-president testified to this agreement, and even Bronska’s father-in-law testified that Bronska did not refuse to accept the fifty percent formula, because according to the father-in-law, Bronska was put in the position of either accepting or ending up without a job.

In January, February, and March, 1972, when Bronska was paid on the fifteen percent base, true he protested and declared an intention to remain at work until April 28, 1972 — yet Bronska worked throughout April, drew his checks and considered all favorable incidents of his employment as remaining unchanged. Even if we were to assume for purposes of argument that CFC breached its agreement, Bronska’s conduct after knowing of the breach would have effectively waived CFC’s assumed breach.

Bronska could not repudiate the contract insofar as its terms were unfavorable to him and at the same time claim its benefits. Bronska’s testimony shows that he did not consider his duties, his territory, his status as district manager, his paper work, or his rights to a pension and profit sharing, had changed. In our opinion, Bronska cannot be permitted to chew up the sweet and spit out the bitter. As pointed out in Henges Co., Inc. v. May, 223 S.W.2d 110, 113 (Mo.App.1949), there is no such thing as a partial recission in the sense that one may repudiate a contract insofar as its terms are unfavorable to him, and at the same time claim its benefits as regards the favorable provisions. Consequently, even if CFC had breached its part of the agreement, we find that Bronska’s conduct in continuing to work during the month of April, 1972, continuing to receive his salary and drawing account, and settling his dispute with CFC waived any alleged breach of contract. Therefore, we rule this point against appellants.

It is true, as declared in Commission Row Club v. Lambert, 161 S.W.2d 732, 736 (Mo.App. 1944), that an injunction must clearly and specifically describe the acts and things enjoined, not just generally so as to be subject to misunderstanding and confusion by those against whom it is directed, but clearly and specifically so that both the complainant and the defendants may know their rights. Here the injunction is almost a direct quote from the 1963 contract, amended in 1966, as agreed to by Bronska. The decree states that Bronska is enjoined until June 29,1976, in the states of Missouri and Illinois from “. . . soliciting, selling, or contracting to furnish services and products ... to any person, firm, or corporation which has been a customer of Chemical Fireproofing Corporation or to any person, firm, or corporation to whom Chemical Fireproofing Corporation has submitted a proposal or contract to sell or furnish services or products prior to June 29, 1974.”

Appellants argue that the word “customer” is not defined, not that the types of acts are subject to confusion. None of the cases cited by appellant in support of this contention are apposite. Each case deals with acts or things enjoined. Commission Row Club v. Lambert, supra (“ ‘unlawfully entering or trespassing in or upon the premises . unlawfully carrying away personal property [and] unlawfully threatening to arrest members.’ ”) and Magel v. Gruetli Benevolent Society, 203 Mo.App. 335, 218 S.W. 704 (1920) (“. . . enjoined and restrained from using the [public] baths in such manner as to cause plaintiffs annoyance and disturbance . . . ”). Granted the injunction neither names the customers referred to nor refers to them by reference to Exhibit No. N; yet, in our opinion, the appellants, the court, and the respondent each knows the identity of the customers referred to — because Exhibit No. N, which is Bronska’s personal earning statement record, lists every customer of the St. Louis office from the time he opened the St. Louis office in 1963 until one month prior to his leaving the office on June 29, 1974. Consequently, we hold that the injunction is neither imprecise, vague nor unspecific.

Appellant’s contention that the restrictive agreement is unenforceable because of unreasonableness is without merit. Reasonableness is determined by the limitation of both time and area contained in the agreement. The test is whether 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 (1949) cited with approval in Reed, Roberts Assoc. Inc. v. Bailenson, 537 S.W.2d 238 (Mo.App.1976). Likewise a restrictive employment agreement to be valid must also be reasonable to the employee and the public. Prentice v. Williams, 324 S.W.2d 466, 469 (Mo.App. 1959).

Here we find that Bronska opened the St. Louis office, and as such was CFC’s personification in the St. Louis area. Thus, it is not unfair to assume that all of the goodwill built up in this area was developed by Bronska. No fair-minded person could reasonably argue that CFC does not have a legitimate interest in protecting its customers from Bronska. In Mills v. Murray, 472 S.W.2d 6, 11 (Mo.App.1971), we recognized that an employer had a proprietary right in his stock of customers and their goodwill and that the courts will protect this asset against appropriation by an employee by enforcement of a reasonable restrictive covenant not to compete. See also House of Tools and Engineering, Inc. v. Price, 504 S.W.2d 157 (Mo.App.1973). Consequently, considering the subject matter of the contract, the extent of the restraint (one year from engaging in a business similar to that of CFC in Missouri or Illinois, and two years from soliciting, selling, or contracting to furnish services or products to any person or firms which had been customers of CFC in Missouri or Illinois) and the specialization of the business, we cannot say that the restrictions as to time or area are unreasonable. Thus we rule this contention against appellant.

Finally, appellants’ argument that Nancy Bronska should not have been enjoined is devoid of merit. In the court’s findings of fact, it found that Nancy was the sole stockholder of ECS and vice-president and secretary; that she performed paper work for the company; and carried on telephone communication with its customers. Under these circumstances, it is reasonable to enjoin a stranger to a covenant from aiding or assisting the covenantor in violating his contract or receiving any benefits therefrom. Mills v. Murray, supra. Here, Nancy Bronska not only was the cov-enantor’s wife but also the sole shareholder and was actively performing services for ECS that aided her husband in violating his employment contract. Thus we find no impropriety in enjoining her activities.

Accordingly, judgment is affirmed.

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

      . “It is accordingly the common practice to make the injunction run to classes of persons through whom the enjoined party may act, such as agents, servants, employees, aiders, abettors, etc. . . .”42 Am.Jur.2d Injunctions, § 320 at p. 1121. See also Chase Nat. Bank v. Norwalk, 291 U.S. 431, 54 S.Ct. 475, 78 L.Ed. 894 (1934).


text:
    Earl William TOLER, Jr., Movant, v. STATE of Missouri, Respondent.
    No. 37523.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 31, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.

      William Shaw, Public Defender, Richard H. Sindel, Asst. Public Defender, Clayton, for movant.
    John Danforth, Atty. Gen., Preston Dean, Chief Counsel, Jefferson City, Courtney Goodman, Jr., Prosecuting Atty., John Newton, Asst. Pros. Atty., Clayton, for respondent.
   GUNN, Judge.

On January 20,1975, movant, hereinafter defendant, entered a plea of guilty to two counts of robbery in the first degree with a dangerous and deadly weapon. He received a sentence of 13 years on each count to run concurrently. On October 2, 1975, the defendant filed a motion pursuant to Rule 27.26 to vacate the judgment and sentence. The trial court overruled the motion without a hearing. In its memorandum opinion, the trial court stated:

“Defendant’s Motion to Vacate Judgment pursuant to Supreme Court Rule 27.26 is denied. Court finds Rule 25.04 was complied with by the sentencing judge and further finds that the Motion, files and records of the case conclusively show that the prisoner is entitled to no relief pursuant to Rule 27.26(e).”

The defendant appeals from the adverse ruling claiming: 1) his plea of guilty was the product of duress and coercion resulting from the sentencing judge’s involvement in plea bargain discussions; and 2) the trial court erred in denying a hearing on his 27.26 motion. We affirm.

The defendant contends that his plea of guilty to the two counts of robbery in the first degree was a product of coercion and duress brought about by the sentencing judge’s involvement in the plea bargaining process. As a result of plea bargaining, it was agreed that by pleading guilty the defendant would receive two fourteen year sentences to run concurrently. In addition, it was understood that an attempt would be made to obtain the defendant's release from the balance of a seven month federal sentence still to be served. The record of the defendant’s guilty plea indicates that the trial court had been involved in formulating the plea agreement. For example, at one point the judge said: “Because of plea negotiations between yourself, your lawyer, me and the Prosecuting Attorney, I am going to sentence you to two 14 year sentences and run them concurrent . . . .”

At another point in the hearing the judge stated:

“This case, as you know, is assigned out for trial; you wanted five years, the State wanted twenty and we have agreed and negotiated on this fourteen years.
. I have cut the State six years and I have raised what you wanted a few years, and this is a sort of compromise between you, your lawyer and myself.”

The defendant claims that by injecting himself in the plea negotiations, the judge had placed the power of the court behind the agreement and could no longer be impartial. The defendant contends that the coercive effect of the judge’s participation was compounded by the defendant’s awareness that the judge could impose a more severe sentence if he stood trial, by the judge’s acknowledging the State had a strong case against him and by the judge’s comment that the defendant was “in a bunch of trouble because this is a serious armed robbery and you have a bunch of prior felonies.” The defendant claims that as a result of both these direct and subtle pressures exerted by the judge, his plea of guilty was involuntary and should be vacated.

The Missouri Supreme Court has stated that ordinarily a judge should not participate in plea discussions and that these negotiations should normally be limited to the defendant’s counsel and the prosecutor. State v. Tyler, 440 S.W.2d 470 (Mo. banc 1969). The court quoted with approval the following portion of the American Bar Association’s “Standard Relating to Pleas of Guilty”:

“3.3 Responsibilities of the trial judge.
(a) The trial judge should not participate in plea discussions.
(b) If a tentative plea agreement has been reached which contemplates entry of a plea of guilty * * * in the expectation that other charges before that court will be dismissed or that sentence concessions will be granted, upon request of the parties the trial judge may permit the disclosure to him of the tentative agreement and the reasons therefor in advance of the time for tender of the plea. He may then indicate to the prosecuting attorney and defense counsel whether he will concur in the proposed disposition if the information in the pre-sentence report is consistent with the representations made to him. If the trial judge concurs, but later decides that the final disposition should not include the charge or sentence concessions contemplated by the plea agreement, he shall so advise the defendant and then call upon the defendant to either affirm or withdraw his plea of guilty * * *.” State v. Tyler, supra at 474. See also Bonner v. State, 535 S.W.2d 289 (Mo.App.1976).

The commentary relating to these standards reflects the A.B.A.’s disapprobation of a judge becoming involved with the actual plea negotiations. A comment to paragraph 3.3(b) states:

“[t]his procedure . . . does not contemplate participation by the judge in the plea discussions. The judge only becomes involved after the parties have reached agreement, and thus there would appear to be little basis upon which the defendant or counsel could conclude that the judge is attempting to force a certain result upon the parties. Moreover, the judge does not initiate the conference; he is brought into the matter prior to tender of the plea only upon the request of the parties.” “Standards Relating to Pleas of Guilty” at 75.

It is clear from the record before us that the sentencing judge’s conduct did not conform to the standards set out by the American Bar Association and which were approved by the Supreme Court in State v. Tyler, supra. From the judge’s own statements it appears that he did not merely approve a tentative agreement submitted by the prosecutor and defense attorney, but, rather, actively participated in the plea negotiations.

While we cannot approve of the judge’s conduct, the fact that he participated in the bargaining does not end our inquiry into the voluntariness of the defendant’s plea of guilty, which, is the essential matter at issue. U. S. ex rel. Robinson v. Housewright, 525 F.2d 988 (7th Cir. 1975); State v. Tyler, supra. We must determine the coercive effect, if any, this participation had upon the defendant’s decision to plead guilty in light of all the circumstances surrounding his plea. U. S. ex rel. Robinson v. Housewright, supra; State v. Tyler, supra. The critical issue is whether the plea of guilty was in fact voluntarily made with understanding of the nature of the charge. Flood v. State, 476 S.W.2d 529 (Mo.1972). It should be noted that “if an accused is misled or induced to plead guilty by mistake, misapprehension, persuasion, or the holding out of a hope which proves to be false or ill-founded, his plea is not voluntary.” Moore v. State, 488 S.W.2d 266, 270 (Mo.App.1972); Latham v. State, 439 S.W.2d 737 (Mo.1969). However, the mere fact that the defendant’s plea of guilty resulted from plea bargaining is not a sufficient basis for finding the plea involuntary. Pulliam v. State, 480 S.W.2d 896 (Mo.1972); Coleman v. State, 473 S.W.2d 692 (Mo.1971); Rayford v. State, 504 S.W.2d 285 (Mo.App. 1973). A review of the record makes it abundantly clear that the defendant’s plea was voluntarily made, and that the trial court’s participation in the plea bargaining did not coerce the defendant to plead guilty.

The record indicates that the trial court explained to the defendant in elaborate and thorough detail the sentence he would receive if he pleaded guilty, as well as the minimum and maximum sentences available under the law. The defendant acknowledged that he understood that by pleading guilty he was waiving his constitutional rights attendant to a jury trial. Thus, the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), were fulfilled. The prosecutor detailed the evidence against the defendant, and the defendant admitted his guilt. The defendant stated that he was not addicted to either drugs or alcohol and emphasized that it was his decision to plead guilty. He admitted that his decision was made free of any coercion or physical or mental intimidation. Throughout the hearing, the judge repeatedly told the defendant that he did not have to plead guilty and that he was entitled to a jury trial. The judge stressed that if the defendant chose to go to trial, the possibility existed that he could be acquitted by the jury. If he were found guilty the sentence imposed might be more or less than fourteen years. The most conclusive evidence demonstrating that the defendant’s plea was voluntarily made despite the judge’s participation in the plea bargaining is the fact that on several occasions during the hearing, the defendant was offered more time to consider his plea. For example, the judge asked the defendant if he wanted an opportunity to discuss his decision with his family before entering a plea. The defendant was also afforded an opportunity to postpone pleading until word was received from the United States probation officer concerning the suspension of the seven month sentence he still had to serve. Despite these opportunities to delay pleading, the defendant chose to plead guilty. In the light of these facts it cannot be said that the defendant’s decision to plead was the product of coercion or duress. The record conclusively demonstrates that the defendant’s plea was voluntary, and the test of Flood v. State, supra, has been fully accomplished. There was no manifest injustice in refusing to permit a withdrawal of defendant’s guilty plea. Brown v. State, supra. Defendant’s guilty plea was not maculated by the trial court’s participation in the negotiations in this case, and we commend the trial court for the manner in which it advised defendant of his rights and interrogated him regarding the plea.

We also hold that no error was committed in denying the defendant a hearing on his 27.26 motion, as the motion, files, transcript and records of the case “conclusively show that the prisoner is entitled to no relief.” Rule 27.26(e). Smith v. State, 513 S.W.2d 407 (Mo. banc 1974); Buckley v. State, 539 S.W.2d 736 (Mo.App.1976); Fisk v. State, 515 S.W.2d 865 (Mo.App.1974); Lewis v. State, 513 S.W.2d 772 (Mo.App. 1974).

The judgment is affirmed.

SIMEONE, P. J., and KELLY, J., concur.

      . Despite the court’s acceptance of this agreement, the defendant was sentenced to two thirteen year sentences to run concurrently.

      . The movant in State v. Tyler, supra, subsequently brought a federal habeas corpus action in which the Eighth Circuit Court of Appeals granted him a new hearing on the issue of the voluntariness of his guilty plea. Tyler v. Swenson, 427 F.2d 412 (8th Cir. 1970). However, the grounds for this ruling were unrelated to the Missouri Supreme Court’s statements concerning the proper role of the judge in the plea bargaining process.

      . Counsel for the defendant asked the court whether the defendant would receive more than fourteen years if he were found guilty after a jury trial. The judge replied that the nature of the sentence would be decided at that time after review of a presentence report. The judge did say that off-hand, the defendant would certainly get in excess of ten years and maybe more than fourteen. It is clear from the record, however, that at no time did the trial judge intimate that if the defendant desired to plead not guilty and stand trial he would impose a more severe sentence. Thus, we are not confronted with the court threatening to penalize the defendant if he chose to plead not guilty. Such circumstance has been held to render a guilty plea involuntary. Euziere v. U. S., 249 F.2d 293 (10th Cir. 1957). Nor are we confronted with the situation where a defendant is misled by not being informed of the fact that the trial court had committed itself to a particular sentence. State v. Edmondson, 438 S.W.2d 237 (Mo.1969). See also Brown v. State, 485 S.W.2d 424 (Mo.1972).

      . The following excerpts from the transcript positively establish that in spite of any participation in plea bargaining by the court, the defendant’s plea of guilty was knowingly and voluntarily made and without coercion on the part of the trial court:
      “ . . .If you do not want to plead guilty you do not have to. And, you were tried before and acquitted. Now, you might be acquitted in this case too. I understand this case is a little stronger than the other case, but you might be acquitted; do you understand that?
      The Defendant: Yes, Sir.
      The Court: And you will be tried under the Habitual Criminal Act. If this case were tried before a St. Louis County Jury you might win it or you might lose it; do you understand that?
      The Defendant: Yes, Sir.
      The Court: If you win it you walk out a free man and all you would have to serve is the seven months you have been revoked on by Uncle Sam; do you understand that?
      The Defendant: Yes.
      The Court: If you are convicted you might get more or you might get less than the fourteen years; do you understand that?
      The Defendant: Yes.
      The Court: And knowing all of this in advance, knowing you will not receive probation and knowing that you will receive fourteen years in the Missouri Department of Corrections, it is my understanding you want to plead guilty, is that right?
      The Defendant: Yes.”
      The prosecutor then recited a detailed statement of the State’s evidence against the defendant. The colloquy between the court and the defendant continued as follows:
      “The Court: Are you guilty of this charge, Mr. Toler?
      The Defendant: Yes, Sir.
      The Court: You heard the facts the State said, what they would prove if this case went to trial?
      The Defendant: Yes, Sir.
      The Court: I don’t know what a St. Louis County Jury would do. I have seen them convict on very little evidence and acquit people with lots of evidence.

      “The Court: When did this robbery take place?
      The Defendant: April the 18th.
      The Court: Where?
      The Defendant: In North St. Louis County, Lewis and Clark State Bank.
      The Court: Was the robbery substantially as Mr. Murphy just said?
      The Defendant: Yes, Sir.
      The Court: Were you involved in that robbery?
      The Defendant: Yes, Sir.
      The Court: Did you wear a ski mask in that robbery?
      The Defendant: Yes, Sir.
      The Court: Whose mask was it, yours or somebody else?
      The Defendant: Mine.
      The Court: Where did you get the guns?
      The Defendant: I don’t know where Charles got his. I have had mine.
      The Court: Did you use a gun?
      The Defendant: Yes, Sir.
      The Court: Were these people hurt in the robbery?
      The Defendant: No, Sir.
      The Court: What was your part in the robbery; just tell me what you did?
      The Defendant: I stood there and told the man to throw the bag of money.
      The Court: Then, what?
      The Defendant: Then I picked it up and was gone. I got his wallet.

      “The Court: Mr. Toler, do you understand all of your Constitutional rights?
      The Defendant: Yes, Sir.
      The Court: Are you willing and ready to try this case, Mr. Watson?
      Mr. Watson: [defendant’s attorney] I would not be ready tomorrow morning, by the fact Mr. Toler was incarcerated by the Federal Government since December 24th, and as a result was notified by Mr. MacDaniels, of whom you spoke a few minutes ago, he was going to be placed there to finish out his Federal time. We did not get that information until last Friday and at that time we both felt he was not there, and I did not have a chance to see him and did not prepare the case for trial because of the Federal incarceration.
      The Court: But if the case has to be tried you will try it?
      Mr. Watson: Yes, Your Honor.

      “The Court: Is this your decision, Mr. Toler, or your lawyer’s decision?
      The Defendant: I am the one pleading, it is my decision but I am basing it on his theories of it.
      Mr. Watson: And my negotiations.
      The Defendant: Yes, it is my decision.

        “The Court: Has anybody intimidated you, either physically or mentally, in any way, to come in here and plead guilty?
      The Defendant: No, Sir.
      The Court: Has anybody cooerced [sic] you?
      The Defendant: No, Sir.
      The Court: Has any Federal probation officer or any of the men you are with with the Department of Welfare or St. Louis County forced you to come in here and plead guilty?
      The Defendant: No, Sir.
      The Court: Has your lawyer forced you to plead guilty?
      The Defendant: No, Sir.
      The Court: Are you pleading guilty of your own volition?
      The Defendant: Yes, Sir.
      The Court: Do you understand all of your Constitutional rights in both cases?
      The Defendant: Yes, Sir.
      The Court: Have you explained his Constitutional rights to him, Mr. Watson?
      Mr. Watson: I have, Your Honor.
      The Court: Several months ago you had a trial by a St. Louis County Jury and you were acquitted; do you remember that?
      The Defendant: Yes, Sir.
      The Court: You know what a trial by a jury is?
      The Defendant: Yes, Sir.
      The Court: If you plead guilty you are waiving your right to be tried by a St. Louis County Jury, do you understand that?
      The Defendant: Yes, Sir.
      The Court: If your case is tried you might win it or you might lose it, do you understand that?
      The Defendant: Yes, Sir.

      “The Court: I will give you another chance to withdraw your plea. Do you want to plead guilty or do you want to withdraw it and have these cases tried by a St. Louis County Jury? Mr. Watson: You can do what you want. If you want to try it, I will try it. Would you like more time? Would you like the Court to pass it until we get a definite answer on that tomorrow morning?
      The Court: We will know that answer in the morning.
      Mr. Watson: Do you want to think about it over night?
      The Defendant: No; go ahead and plead.
      The Court: You understand you can have this case tried by a Jury?
      The Defendant: Yes, Sir.
      The Court: And you want to go ahead and plead guilty?
      The Defendant: Yes, Sir.
      The Court: On your own?
      The Defendant: Yes, Sir.”