author: PARK, Judge.

text:
    Terry R. BLANTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 10, 1978.

      Robert E. Cato, London, for appellant.
    Robert F. Stephens, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for appellee.
    Before LESTER, PARK and WILHOIT, JJ.
   PARK, Judge.

The appellant, Terry R. Blanton, is a building contractor engaged in the construction of single family residences. Blan-ton was indicted and convicted in the Laurel Circuit Court of theft by failure to make required disposition of property (KRS 514.-070), receiving a sentence of two years imprisonment.

Blanton had entered into a contract to construct a residence for Allen Scharf for the sum of $27,000.00. Scharf paid Blanton the sum of $22,000.00 on the contract. Scharf, who is a Kentucky State Policeman, arrested Blanton for theft by failure to make required disposition of property when he discovered that Blanton had failed to pay certain claims for labor and material used in construction of the residence. On this appeal, Blanton asserts two grounds for reversing the judgment of the circuit court: (1) that he was entitled to a directed verdict of acquittal; and (2) that he was entitled an instruction on a lesser included misdemean- or offense.

I

KRS 514.070(1) provides:

A person is guilty of theft by failure to make required disposition of property received when:
(a) He obtains property upon agreement or subject to a known legal obligation to make specified payment or other disposition whether from such property or its proceeds or from his own property to be reserved in equivalent amount; and
(b) He intentionally deals with the property as his own and fails to make the required payment or disposition.

In the brief filed on behalf of the Commonwealth, the Attorney General concedes error. The Attorney General’s brief suggests that a building contractor is under no legal duty to pay claims for labor and material furnished on the job out of proceeds of any payment received from the owner of the property. We disagree.

KRS 376.070(1) provides:

Any contractor, architect, or other person, who builds, repairs, or improves the property of another under such circumstances that a mechanics’ or material-man’s lien may be imposed on the property shall, from the proceeds of any payment received from the owner, pay in full all persons who have furnished material or performed labor on the property.

Blanton clearly had a legal obligation to pay in full all claims for material and labor furnished on the Scharf residence out of the sum of $22,000.00 received on the contract from Scharf. If the amount paid by the owner was not sufficient to pay all such bills, then it was Blanton’s duty to pay all bills for material and labor on a pro rata basis. KRS 376.070(2).

KRS 514.070 is identical with section 1530 of the final draft of the Kentucky Penal Code published in November 1971. Consequently, the commentary accompanying section 1530 of the final draft of the Kentucky Penal Code may be used as an aid in construing KRS 514.070(1). See Kennedy v. Commonwealth, Ky., 544 S.W.2d 219 (1976); KRS 500.100. The commentary to section 1530 of the final draft stated:

An example of property obtained “subject to a known legal obligation” is a contractor or architect who fails to apply payments to claims of mechanic’s or ma-terialman’s liens presently an offense under KRS 376.070.

The drafters of the penal code clearly intended KRS 514.070(1) to apply to contractors who failed to apply payments received from the owner to claims for labor and material furnished on the job.

KRS 514.070(1) is based upon section 223.8 of the American Law Institute’s Model Penal Code. The commentary to an earlier draft of that section stated:

The section applies also where statutes require certain classes of persons who receive funds to reserve such funds for particular purposes. Examples of this legislation are the building contractor statutes requiring payments received on the building contract to be used to pay laborers and materialmen, statutes requiring factors and commission merchants to remit the net proceeds of sale of agricultural products to the consignor, and statutes requiring retailers to collect sales taxes to be paid over to the state.

ALI Model Penal Code (Tentative Draft # 2, 1954) 81 (emphasis added). There is no merit to the Attorney General’s suggestion that a building contractor has no duty to apply amounts received from the owner to the payment of claims for labor and material used on the job. Unless the contractor pays the claims for labor and material, mechanics’ liens may be asserted against the owner’s property, and the owner may be required to pay twice for his home.

The Commonwealth introduced evidence of three unpaid claims for labor and material furnished on the Scharf residence. Hoover Neeley testified that he performed the plumbing work on the Scharf residence. Neeley testified that Blanton had paid him only $500.00 on his bill for $1,750.00, leaving a balance of $1,250.00 due for his work. Roger Rush testified that he was a carpenter on the Scharf job and that Blanton had failed to pay him $260.00 for labor performed by him. The credit manager for Central Kentucky Supply Co., Inc., testified that Blanton owed the sum of $8,129.73 for materials furnished to the Scharf job. He further testified that Blanton had made no payment for any of the materials furnished to the Scharf residence. The invoices from Central Kentucky Supply were dated between February 17 and March 26, 1976.

Scharf testified that he paid Blanton $22,000.00 on the contract between January 6 and March 29,1976. According to Scharf, Blanton had asked for an advance on the final payment on March 29 so that he could pay bricklayers. Scharf testified that he asked Blanton whether he was behind on his bills and that Blanton assured him that all materials used in the residence had been paid to date. Having introduced evidence of payment by the owner and nonpayment of the claims for labor and material, the Commonwealth had made out a prima facie case that Blanton had intentionally dealt with the Scharf money as his own. Such an intention is the natural inference to be drawn from that evidence.

Blanton claimed that he did not owe the three claims for labor and material on the Scharf job. He testified that on February 10, 1976, he had paid Central Kentucky Supply the sum of $15,000.00 borrowed from a savings and loan association. However, it should be noted that this was seven days before the date of the first invoice for materials for the Scharf job. Blanton testified that he usually owed around $10,000.00 to Central Kentucky Supply at all times. There is nothing to indicate that the $15,-000.00 payment to Central Kentucky Supply was for the Scharf job. As Blanton testified:

Well, they put it wherever they wanted to. Central Kentucky Supply did. It was just a running account that I had with them and I paid on it. I told them where to put it, which ones to apply to, but generally they didn’t list, you know. They just put it wherever they wanted to apply, the oldest bill or whatever.

He also testified that he owed nothing to Neeley or Rush. As to Neeley, Blanton claimed that the bill was inflated and included work not performed on the Scharf job. As to Rush, Blanton claimed that he was entitled to an offset for the value of labor performed by him for the benefit of Rush.

In their written contract, Scharf and Blanton clearly contemplated that the progress payments would be applied to the bills for labor and materials for which liens could be asserted against the property. On cross-examination, Blanton admitted that it was his responsibility to pay for all labor and material used on the job. Blanton does not seriously argue that he did not receive the progress payments from Scharf “subject to a known legal obligation” to pay for the labor and material on the Scharf job. There was also evidence that Blanton used a portion of the Scharf funds to pay bricklayers who were working on three houses for Blanton, including the Scharf home. Blanton was not entitled to use the Scharf payments to satisfy claims for labor and materials on other jobs. He could not rob Peter to pay Paul. If a contractor cannot pay his debts as they come due and if he diverts money received on one job to the payment of claims on another job, the contractor has intentionally dealt with that money as his own. Blanton offered no accounting of the funds received from Scharf, nor did he offer any evidence of his ability to pay the outstanding claims on the Scharf job.

We conclude that Blanton was not entitled to a directed verdict of acquittal. Neither the trial court nor the jury was required to accept Blanton’s explanation for the three bills. The trial court did not err in refusing to direct a verdict of acquittal.

II

As pointed out above, KRS 376.070 imposes a duty upon a contractor to apply payments received from the owner to the claims of persons furnishing material and labor on the job. KRS 376.990(2) provides that any person who violates any of the provisions of KRS 376.070 shall be fined not less than $50.00 nor more than $1,000.00, or imprisoned for not less than one month nor more than 12 months, or both. The provisions of KRS 376.990(2) were not repealed by the enactment of the penal code. Blan-ton’s attorney requested an instruction under KRS 376.990(2), which the trial court refused to give.

KRS 376.070 and KRS 376.990(2) appear to impose absolute criminal liability upon a contractor for failure to pay laborers and materialmen out of sums received from the owner. On the other hand, before a contractor can be guilty by theft of failure to make required disposition of property received under KRS 514.070, the contractor must receive the money from the owner “subject to a known legal obligation to make specified payment” and the contractor must “intentionally [deal] with the property as his own” by failing to make the required payments. The Commonwealth did not trace Blanton’s use of the Scharf money. Evidence of payment by Scharf and nonpayment of the claims by Neeley, Rush and Central Kentucky Supply made out a prima facie case just sufficient to take the felony charge to the jury. Consequently, Blanton was entitled to a misdemeanor instruction under KRS 376.990(2), there being a real issue whether Blanton intentionally dealt with the Scharf payments as his own money. A jury could find that Blanton failed to make the payments required by KRS 376.070 and yet entertain a reasonable doubt from the evidence that he did so with the Intention of dealing with the progress payments as his own by failing to satisfy known legal obligations to pay laborers and materialmen.

Blanton must be granted a new trial because of the trial court’s failure to give an instruction on the lesser included offense under KRS 376.990(2).

Ill

As indicated above, Blanton testified that he believed in good faith that he owed nothing to Neeley, Rush, or Central Kentucky Supply on the Scharf job. We also suggested that KRS 376.070 and KRS 376.-990(2) appear to impose absolute criminal liability upon a contractor who fails to pay claims for labor and material out of payments received from the owner of the property. Because there must be another trial of Blanton, we must determine whether a contractor may be criminally liable under KRS 376.070 and KRS 376.990(2) when, in good faith, he disputes the amount of the claim of a person furnishing labor or material on the job.

In the absence of a clear legislative purpose to impose absolute liability for conduct described in a statute outside of the penal code, a person may not be guilty of an offense unless his conduct was accompanied by a culpable mental state. KRS 501.-050(2). See also KRS 501.030(2). If KRS 376.070 and KRS 376.990(2) were construed to impose absolute criminal liability upon a contractor acting in good faith for a simple breach of contract, the statute probably would violate section 18 of the Kentucky Constitution which restricts imprisonment for debt. A penal statute which is no more than a debt collecting statute is unconstitutional. Burnam v. Commonwealth, 228 Ky. 410, 15 S.W.2d 256 (1929); Ward v. Commonwealth, 228 Ky. 468, 15 S.W.2d 276 (1929).

We find nothing in KRS 376.070 or KRS 376.990(2) which indicates a clear legislative purpose to impose absolute criminal liability. Such a construction would raise serious questions under section 18 of our constitution. Consequently, we construe the statutes to require a culpable mental state before a contractor can be guilty of even a misdemeanor.

In summary, the failure to pay claims for labor and material out of amounts received from the owner constitutes a misdemeanor under KRS 376.990(2) only if the contractor fails to pay sums which he knows to be due and owing. No criminal liability may be imposed for failure to pay an amount which is disputed in good faith by the contractor. Moreover, to commit the felony of theft by failure to make required disposition of property under KRS 514.070, a contractor must not only know that an amount is due and owing for labor and material, but he must also know that he has a legal obligation to make payment out of the proceeds received from the owner and must intentionally deal with proceeds as his own.

The judgment of the circuit court is reversed with directions to grant Blanton a new trial.

All concur.

      . At oral argument, the assistant Attorney General explained that their computer service had found no case in support of the proposition.


source: Caselaw Access Project

author: COOPER, Judge.

license: Public Domain

text:
    SOUTHEASTERN SKATE SUPPLY, INC., Appellant, v. Paul LAYMAN t/a 8 Red Wheels Corporation, Appellee.
    Court of Appeals of Kentucky.
    Feb. 10, 1978.
    Richard H. Nash, Jr., Nash, Gildersleeve & Nash, Louisville, for appellant.
    Anthony L. Warth, Louisville, for appel-lee.
    Before COOPER, HOWARD and PARK, JJ.
   COOPER, Judge.

This is an appeal from a judgment in the Jefferson Circuit Court wherein the trial court dismissed a complaint, with prejudice, of a foreign corporation who was not registered to do business in Kentucky, against a local citizen.

On or about January 5, 1977, the appellant filed a complaint against the appellee stating basically that the appellant was owed $2,993.42 because appellant had supplied goods to the appellee and that appel-lee had given appellant a bad check dated March 28, 1976, for said amount. This check was returned for insufficient funds. The appellant also demanded an additional $9,333.40 for other goods provided to the appellee, and for which the appellee had made no payment. The full amount demanded was $12,326.82.

On or about April 11, 1977, the appellee filed a motion and order to dismiss the complaint. On April 19, 1977, the trial judge entered an order dismissing the complaint with prejudice. The trial judge noted on the order dismissing with prejudice dated April 19, 1977, the following: “See KRS 271.A610 Sub. (1) and (2).” It can be assumed that the trial judge based his dismissal on Kentucky Revised Statute 271A.610.

The appellant is a Virginia corporation and is not licensed to do business in the State of Kentucky. The appellee is a resident of Jefferson County, Kentucky. The trial court dismissed the complaint on the assumption that the appellant was a foreign corporation transacting business in the State of Kentucky without a certificate of authority.

The record stands void of facts in this case. Both appellant and appellee have presented questions of law that are in line with their theory of the case. We believe it is necessary to present the questions of both parties.

The issue presented by the appellant is: WHETHER THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S COMPLAINT BECAUSE IT IS A FOREIGN CORPORATION WITHOUT A CERTIFICATE OF AUTHORITY TO TRANSACT BUSINESS IN THE STATE OF KENTUCKY WHEN THERE WAS NO PROOF THAT, AND APPELLANT WAS IN FACT NOT, TRANSACTING BUSINESS IN THE STATE OF KENTUCKY.

The issue presented by the appellee is:

WHETHER A FOREIGN CORPORATION WHICH IS TRANSACTING BUSINESS IN KENTUCKY CAN MAINTAIN AN ACTION IN THE COURTS OF KENTUCKY IF THAT CORPORATION HAS FAILED TO OBTAIN A CERTIFICATE OF AUTHORITY FROM THE SECRETARY OF STATE.

The main question in our minds is what the legislature meant by transacting business in Kentucky and what activities are not to be considered transacting business, if any.

No cases have been cited by either party and we know of no precedents that have been set on these points. Obviously, two sections of the Kentucky Revised Statutes have been cited and relied upon as authority-

KRS 271A.610, the statute cited by the trial judge in the dismissal of appellant’s complaint, states in subsection (1) that no foreign corporation transacting business in Kentucky without a certificate of authority shall be permitted to maintain an action or suit in any court of the State of Kentucky until a certificate of authority is obtained.

KRS 271A.520 states in part:

271A.520. Admission of foreign corporation.
(1) No foreign corporation, except a foreign insurance company, shall have the right to transact business in this state until it shall have procured a certificate of authority so to do from the secretary of state. No foreign corporation shall be entitled to procure a certificate of authority under this chapter to transact in this state any business which a corporation organized under this chapter is not permitted to transact. A foreign corporation shall not be denied a certificate of authority by reason of the fact that the laws of the state or country under which such corporation is organized governing its organization and internal affairs differ from the laws of this state, and nothing in this chapter contained shall be construed to authorize this state to regulate the organization or the internal affairs of such corporation.
(2) Without excluding other activities which may not constitute transacting business in this state, a foreign corporation shall not be considered to be transacting business in this state, for the purposes of this chapter, by reason of carrying on in this state any one or more of the following activities:
(f) Soliciting or procuring orders, whether by mail or through employees or agents or otherwise, where such orders require acceptance without this state before becoming binding contracts;
(i) Transacting any business in interstate commerce;

As stated before, the record is void as to what business transactions transpired. There is nothing in the record which indicates that the appellant had at anytime transacted business in the State of Kentucky.

KRS 271A.520 states that no foreign corporation shall have the right to transact business in the State of Kentucky until a certificate of authority from the secretary of state is obtained. In subsection (2) of this statute, it is clearly stated that there are several activities which do not constitute transacting business in the State of Kentucky. It states specifically that a foreign corporation shall not be considered to be transacting business in the State of Kentucky simply because it carries on any one of several enumerated activities. Included among the activities which are not to be considered transacting business in the State of Kentucky by a foreign corporation are:

1. Soliciting or procuring orders, whether by mail or through employees or agents or otherwise, where such orders require acceptance without this state before becoming binding contracts.
2. Transacting any business in interstate commerce.

The above two activities, which by way of KRS 217A.520 are not to be considered transacting business in the State of Kentucky if entered into by a foreign corporation, are apparently the activities entered into by the appellant.

It appears that the activities of the appellant in the State of Kentucky may fall within the exceptions enumerated above and the trial court failed to consider all statutes in this matter. If this were not the law, no foreign corporation transacting business in interstate commerce could maintain an action against a defendant in the State of Kentucky by way of a Kentucky state court.

The judgment is reversed and remanded to the trial court for proceedings consistent with this opinion.

All concur.


text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Appellant, v. Geneva HELM and Nancy Wood, Co-Administrices of the Estate of Leo Cletus Helm, Deceased, Dravo Corporation, d/b/a Dravo Construction Company, and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Feb. 3, 1978.
    Cyril E. Shadowen, Asst. Counsel, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for appellant.
    James L. Hardy, Paducah, Louis V. Mangrum, Mayfield, for appellees.
    Before COOPER, HAYES and HOWER-TON, JJ.
   COOPER, Judge.

This is an appeal from a judgment in the Marshall Circuit Court in a Workmen’s Compensation case wherein the circuit court affirmed an Award of total disability to the claimant which was apportioned equally between the employer and the Special Fund.

The claimant, Leo Helm, sustained a com-pensable injury to his back on October 14, 1971. On August 21, 1972, the claimant and his employer entered into a compensation agreement in which Mr. Helm received a lump sum settlement of $2,449.13, representing a 15% permanent partial disability. This was approved by the Workmen’s Compensation Board on September 6, 1972; however, the Special Fund was not a party to the compensation agreement.

On October 31, 1974, the claimant filed a motion to re-open, based on a change of condition in regard to the extent of occupational disability. Special Fund was subsequently made a party, proof was taken and in the Board’s Opinion and Award of October 18, 1976, the claimant was found to be 100% occupationally disabled. The former settlement agreement was set aside and benefits increased, beginning October 31, 1974, and continuing for the balance of the compensable period. The Award was apportioned equally between the employer and the Special Fund.

The Special Fund appealed to the Marshall Circuit Court alleging that the Fund could not properly be made a party in the present action. In a judgment entered April 5, 1977, the Marshall Circuit Court affirmed the Board’s Opinion and Award of October 18, 1976.

The main issue raised on this appeal is:

WHETHER THE SPECIAL FUND MAY BE MADE A PARTY UPON A MOTION TO RE-OPEN A CLAIM WHERE IT WAS NOT A PARTY TO THE ORIGINAL BOARD-APPROVED AGREEMENT.

We find the statutes involved here, KRS 342.120 and KRS 342.125 are dispositive of the issues in this case. These statutes provide as follows:

KRS 342.120 (1) A claimant may in the original application for benefits, or either party may by motion while the case is pending, accompanied by proper allegations, and the Board shall upon its own motion at any time before the rendition of the final Award, cause the Special Fund to be made a party to the proceedings if either or both of the following appears:

(a) The employee is disabled, whether from a compensable injury, occupational disease, preexisting disease, or otherwise, and has received a subsequent compensa-ble injury by accident, or has developed an occupational disease;
(b) The employee is found to have a dormant non-disabling disease or condition which was aroused or brought into disabling reality by reason of a subsequent compensable injury by accident or an occupational disease.

KRS 342.125 (1) Upon its own motion or upon the application of any party interested and a showing of change of conditions, mistake or fraud or newly discovered evidence, the Board may at any time review any Award or Order, ending, diminishing or increasing the compensation previously awarded, within the maximum and minimum provided in this chapter, or change or revoke its previous order, sending immediately to the parties a copy of its subsequent Order or Award. Review under this section shall be had upon notice to the parties interested and shall not affect the previous Order or Award as to any sums already paid thereunder. However, the employer shall not suspend the payment of benefits during the pendency of any re-opening procedures.

(2) Where an agreement has become an Award by approval of the Board, and a review of such an Award is initiated, no statement contained in the agreement, whether as to jurisdiction, liability of the employer, nature and extent of disability, or as to any other matter, shall be considered by the Board as an admission against the interests of any party. The parties may raise any issue upon review of this type of Award which could have been considered upon an original application for benefits.

Clearly, the claimant met the requirement of KRS 342.125 in getting his case re-opened for review. Section (2) of KRS 342.125 is applicable here and it provides when a review of an Award such as here is initiated, no statement in the agreement may be considered by the Board as an admission against interest and that, “the parties may raise any issue upon review of this type of Award which could have been considered upon an original application for benefits.”

In the case of American Standard, Inc. v. Stephen, Ky.App., 25 Ky.L.Summ. 1 (January 6, 1978) the Court held that “parties may raise any issue upon review of this type of Award which could have been considered upon an original application.” In the same case, the Court further states that KRS 342.120 provides that the Special Fund may be made a party in the original application or by a motion of any of the parties or the Board itself prior to the final Award.

Under these circumstances we find that the trial court correctly affirmed the Board’s Opinion and Award of October 18, 1976.

The judgment of the trial court is affirmed.

All concur.


text:
    TUBE TURNS DIVISION OF CHEMETRON CORP., Appellant, v. PATTERSON COMPANY, INC., Appellee.
    Court of Appeals of Kentucky.
    Feb. 3, 1978.
    Lewis G. Benham, Louisville, for appellant.
    Robert J. Beale, Louisville, for appellee.
    Before COOPER, HOWARD and PARK, JJ.
   PARK, Judge.

The sole question presented by this appeal is whether a Kentucky court can exercise personal jurisdiction over the appellee, Patterson Company, Inc., under the “long arm” statute, KRS 454.210. The Jefferson Circuit Court quashed service of process upon Patterson on the ground that Patterson was not “transacting any business” in Kentucky within the meaning of KRS 454.-210(2)(a)(1).

This litigation arose out of a sale of bellows expansion joints by the appellant, Tube Turns, to Patterson. Suit was filed to recover a balance of $9,608.80 alleged to be due in payment for the goods. Patterson is a Colorado corporation. The initial contact with Patterson was made in Colorado by Tube Turns’s Colorado representative. Subsequent negotiations were conducted by mail and telephone between Patterson in Colorado and Tube Turns’s Louisville office. Patterson’s order was accepted by Tube Turns in Louisville.

Patterson has no certificate of authority to transact business in Kentucky. It has never maintained an office, a post office box, or telephone directory listing for the purpose of transacting business in Kentucky. Patterson has no employees or agents in Kentucky, and it owns no property in Kentucky. Its employees and agents never physically entered Kentucky for the purpose of negotiating contracts or soliciting any business.

The record does not indicate that the bellows expansion joints were specially manufactured for Patterson. In fact, the record does not even indicate that the goods were manufactured in Kentucky.

In Davis H. Elliot Co. v. Caribbean Utilities Co., 513 F.2d 1176, 1180-81 (6th Cir.1975), the federal court of appeals held that KRS 454.210(2)(a)(1) was intended to extend personal jurisdiction by Kentucky over nonresidents to the limits of the due process clause. Under the principles of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the due process clause dictates that Patterson must have had certain minimum contacts with Kentucky before it can be required to defend the action which was brought against it in the Jefferson Circuit Court. In the absence of such minimum contacts, maintenance of the action against Patterson would offend “traditional notions of fair play and substantial justice.”

In McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), the Supreme Court held that California could exercise personal jurisdiction over a nonresident insurance company based upon a single policy insuring a California resident. The court held that California had a manifest interest in providing effective means of redress for its residents when foreign insurers refused to pay policy claims. However, due process is not satisfied merely because the forum state has an interest in the resolution of the controversy or because it may be the most convenient location for litigation. In Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), the Supreme Court held that it was essential to the exercise of personal jurisdiction over a nonresident that the defendant purposely had exercised the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its law.

In Southern Machine Company v. Mohasco Industries, Inc., 401 F.2d 374, 381 (6th Cir. 1968), the court set forth three criteria for determining the outer limits of personal jurisdiction based upon a single act:

First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.

Applying these criteria to the facts of this case, we conclude that it would be unreasonable for Kentucky to exercise jurisdiction over Patterson solely on the basis of negotiations by telephone and mail which culminated in the acceptance of a single order in Louisville.

Courts have frequently distinguished between nonresident sellers and nonresident buyers in applying “long arm” statutes. See In-Flight Devices Corp. v. VanDusen Air, Inc., 466 F.2d 220, 232 (6th Cir. 1972). This is particularly true when the nonresident buyer did no more than place an order within the forum state, accepting the seller’s terms and price as stated in the product advertising. Unlike the nonresident seller who seeks to distribute its products within the forum state, the nonresident buyer enjoys no particular privilege or protection in purchasing products from a resident seller. See Fourth Northwestern Bank of Minneapolis v. Hilson Industries, Inc., 264 Minn. 110, 117 N.W.2d 732 (1962).

The record in this case does not indicate that the goods were specially manufactured or fabricated. Patterson’s order with Tube Turns was not a part of a series of transactions, and the record does not indicate that it was a particularly large order. There was no inspection of production facilities following substantial negotiations. The presence of one or more of such factors can justify exercising jurisdiction over a nonresident buyer. See In-Flight Devices Corp. v. VanDusen Air, Inc., supra; Avdel Corp. v. Mecure, 58 N.J. 264, 277 A.2d 207 (1971); State ex rel. White Lumber Sales v. Sulmonetti, 252 Or. 121, 448 P.2d 571 (1968).

In this case, Patterson placed an order as a result of solicitations made by Tube Turns’s representatives in Colorado. In the absence of proof that Patterson should have anticipated that its order with Tube Turns could have a substantial impact on commerce within Kentucky, it would be unreasonable and a denial of due process to require Patterson to defend this action in the Kentucky courts. The circuit court did not err in quashing the attempted service of process upon Patterson under KRS 454.210.

The judgment of the circuit court is affirmed.

All concur.


author: DOWD, Judge.

text:
    Norvel Ray PAYNE, Respondent, v. ST. LOUIS GRAIN CORP., Respondent, and Commercial Union Insurance Co., Appellant, and Westchester Fire Insurance Co., Respondent.
    No. 38705.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Dec. 20, 1977.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.

      Robert R. Schwarz, St. Louis, for appellant.
    George D. Chopin, St. Louis, Alfred Hoffman, Columbia, Edward M. Yokoun, St. Louis, for respondents.
   DOWD, Judge.

A workmen’s compensation ease involving a dispute as to coverage by two insurance carriers. St. Louis Grain Corporation, the employer, was insured by two valid workmen’s compensation policies. One was with Westchester Insurance Company (hereinafter Westchester) which carried workmen’s compensation insurance coverage on any injuries construed to be compen-sable under the Illinois Workmen’s Compensation Act. The other was an assigned risk workmen’s compensation policy with Commercial Union Insurance Company (hereinafter Commercial) for injuries compensable under the Missouri Workmen’s Compensation Law. Appellant Commercial Union appeals from the finding below that it was the insurer of the risk which occurred in East St. Louis, Illinois and resulted in claimant’s injury.

Claimant Norvel Ray Payne resided in the City of St. Louis in October of 1973. A friend who worked for St. Louis Grain Company suggested that Payne go to Elevator A on East Grand in the City of St. Louis to obtain employment. At the office in St. Louis Payne spoke to a Mr. George Spafford, the general superintendent, and there filled out a job application. Spafford told Payne he would call him at home if he needed him, and that evening Spafford called Payne and told him to meet him at the East St. Louis elevator the following day. Payne met Spafford in East St. Louis that day and started working. His work consisted of cleaning the area and greasing machines.

On October 12, Payne was working at the same elevator in East St. Louis, cleaning out bins. He fell a distance of 40-50 feet, hit his head against the concrete sloped wall of the bin, lost consciousness, and was dragged out from the bin.

Following a hearing before the Division of Workmen’s Compensation, the Referee made 4 findings: 1) claimant was hired in Missouri, 2) the insurance policy of Commercial included coverage for this injury notwithstanding the fact that it occurred in Illinois, 3) the employee was entitled to an award for disability in the amount of $12,-500 due from Commercial, and 4) Westches-ter, which also insured St. Louis Grain Corporation, was to be reimbursed by Commercial for the $5,208.05 that it mistakenly paid claimant Payne in temporary benefits and medical expenses.

The Industrial Commission affirmed the referee’s finding in all respects except disallowed the reimbursement, finding that neither the referee nor the commission had the power to make such an order.

Upon appeal to the Circuit Court of the City of St. Louis, the Commission’s award was affirmed and modified by adding to the award the sum of $3,166.85 for medical aid for the employee.

Respondents Westchester and Norvel Payne both move that we dismiss this appeal. Payne and Westchester assert that appellant Commercial has failed to comply with Supreme Court Rule 84.04(c), because its brief does not contain “a fair and concise statement of the facts relevant to the questions presented for determination without argument.” Westchester alone also claims appellant is in violation of Rule 84.04(h) because the argument portion of his brief does not contain “specific page references to the transcript on appeal.” This motion is denied.

However, this court concludes that four of appellant’s points relied on preserve nothing for our review. We dismiss these four points.

The first remaining reviewable point concerns appellant’s claim that it is not liable for the employee’s award because its policy specifically excluded coverage of any accident occurring outside Missouri. Before discussing this issue, we point out that our standard of review is limited to surveying the whole record to see if there is competent and substantial evidence to support the decision of the Commission. We can set aside their ruling only if it is clearly contrary to the overwhelming weight of the evidence. Deatherage v. Churchill Truck Lines, Inc., 469 S.W.2d 660, 661[2] (Mo.App.1971).

Section 287.110(2) states, inter alia, that Missouri Workmen’s Compensation Law applies to “all injuries received and occupational diseases contracted outside of this state under contract of employment made in this state.” (Emphasis added). And the Commercial insurance policy in effect at the time of the injury specifically incorporated Missouri Workmen’s Compensation Law, as it was bound to do by our law, Section 287.310.

Accordingly, if the finding of the commission that the contract of employment was made in Missouri is supported by competent and substantial evidence, Payne is entitled to receive benefits from Commercial for the Illinois accident.

The test of determining where the relationship of employee and employer was created involves the intention of the parties as evidenced by their acts and conduct, the nature of the business, the situation of the parties and all the facts and circumstances. Hall v. Denver-Chicago International Inc., 481 S.W.2d 622, 625 (Mo.App.1972). Here several facts are significant in determining where the contract was made. These significant facts include: 1) St. Louis Grain had been strictly a Missouri operation until the very week that Payne began work, when it bought the East St. Louis elevator and for the first time began doing business in Illinois, 2) Norvel Payne applied for the job in Missouri by speaking with the supervisors at the Missouri office in St. Louis and filling out the job application there, 3) Superintendent George Spafford accepted Payne’s application in St. Louis, and told Payne he would call him if he needed him. That night he called Payne at Payne’s home in St. Louis and told him to begin work the following day in East St. Louis. Pursuant to Spafford’s telephone call, Payne reported for work the following day in East St. Louis. Based on all the facts we believe the finding by the commission that Payne was hired in Missouri was supported by competent and substantial evidence. See, Daggett v. Kansas City Structural Steel Co., 334 Mo. 207, 65 S.W.2d 1036 (1933); Thacker v. Massman Construction Co., 247 S.W.2d 623, 629 (Mo.1952).

The next preserved point is that the circuit court erred in amending the award of the commission by adding to the award to employee the sum of $3,166.85 for medical aid. It is undisputed that Westchester paid $2,041.20 for the employee Payne’s temporary total disability and $3,166.85 for his medical expenses, under the impression that they were liable for these expenses. The referee determined that Commercial was to reimburse Westchester in the amount of $5,208.05. The commission found the order of reimbursement to be erroneous because not within the authority of the referee or the commission, based on Harris v. Pine Cleaners, 296 S.W.2d 27, 30 (Mo. banc 1956), but they affirmed the referee’s determination in all other respects.

The employee moved the commission to modify its award by granting him $3,166.85 for his medical expenses, or to rehear the case.

The commission responded by informing him that the case had been appealed to the Circuit Court of St. Louis and the commission no longer had jurisdiction over the matter. Claimant thereafter filed his motion in the Circuit Court, asking the court to modify the commission’s award in the amount of $3,166.85. The Circuit Court granted the motion.

Section 287.490(1) states that “The final award of the Commission shall be conclusive and binding unless either party shall . appeal to the Circuit Court . The court, on appeal, shall review only questions of law and modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

3) That the facts found by the commission do not support the award.”

Therefore, the statute specifically allows a modification of the award by the court. Baer v. City of Brookfield, 366 S.W.2d 469, 471[5] (Mo.App.1963). In this case because the facts found by the commission supported the award for disability and medical care, the trial court properly modified the award to include payment for medical care. If the award was not so modified, the employee might later be found liable to Westchester in an ancillary action for the money Westchester paid him for medical expenses, when Westchester believed it was liable. If the employee is forced to reimburse Westchester, his total award received from Commercial will be reduced, and Commercial will have avoided payment for this amount.

The Circuit Court’s modification was to correct what must have been an oversight on the part of the commission, since it is clear that the commission was intending to compensate employee Payne for all expenses incident to his injury.

The final reviewable point raised is that it was error to allow the respondent’s attorney to continue to represent Westches-ter arguing that the representation was in conflict with respondent’s attorney’s prior posture of representing St. Louis Grain, the insured employer.

It appears to us that appellant Commercial has no standing to raise this issue. “The objection that an attorney is disqualified by reason of his representing adverse interests is available only to those as to whom the attorney in question sustains, or has sustained, the relation of attorney and client.” 7 C.J.S. Attorney & Client § 47 at 826. Although Missouri courts have not ruled on this issue, other jurisdictions have, and the above cited rule has been characterized as the majority or general rule. See, e. g., In re Yarn Processing Patent Validity Litigation, 530 F.2d 83, 88[3] (5th Cir. 1976); Murchison v. Kirby, 201 F.Supp. 122, 123[1] (S.D.N.Y.1961); Otis & Co. v. Pennsylvania R Co., 57 F.Supp. 680, 684[4] (E.D.Pa.1944).

Of course, there may be narrow exceptions to this general rule, such as when the conflict of interest is manifest and glaring, so that the court will be confronted with a plain duty to act. In re Yarn Processing Patent Litigation, supra, 530 F.2d at 89.

Commercial does not offer to explain how it was injured by the alleged conflict of interest, other than to say “said representation was prejudicial to all the parties.” However, St. Louis Grain, the alleged victim of this alleged conflict of interest, maintained at the hearing that it did not want respondent’s attorney excluded, but on the contrary wanted him to remain and represent it in the event that the referee determined that the accident was compen-sable under the Illinois Workmen’s Compensation Act.

The point is without merit.

The judgment is affirmed.

STEWART, P. J., and REINHARD, J., concur.

      .Rule 84.04(d) requires an appellant, in his points relied on, to state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous. The rule further states that setting out only abstract statements of the law without showing how they are related to an action of the trial court is a failure to comply with the rule. The defective points read as follows:
      1. “The Employee Failed to Sustain the Burden of Proof that Missouri Jurisdiction is applicable.”
      2. “The Missouri Division of Workmen’s Compensation is Without Jurisdiction to Make an Award to the Employee in this Instance and the Evidence Shows That Said Claim is Within the Jurisdiction of the Division of Workmen’s Compensation of Illinois.”
      3. “The ‘Other Insurance Clause’ Found in Both Polices Apply (sic). The Westchester Fire Insurance Company Specifically Insured the Risk of Injury to Employees at the Illinois Location and Is Obligated to Pay the Benefits Therefor in Any Jurisdiction Arising out of That Operation.”
      4.“The Westchester Fire Insurance Company is Estopped to Deny Coverage Under Its Policy in Payment of an Award Made to the Employee.”
      All of these points are mere abstract statements of the law and provide nothing for review. Middleton v. Meramec Mining Co., 545 S.W.2d 679 (Mo.App.1976); Kellin v. ACF Industries, Inc., 528 S.W.2d 533 (Mo.App.1975). In addition, the points are not reviewable because they do not specify what the trial court did that is claimed to be erroneous or state wherein and why the challenged action is deemed to be error. Long v. Lincoln, 528 S.W.2d 512, 513[2] (Mo.App.1975).

      . The policy reads, “Coverage A of this policy applies to the Workmen’s Compensation law and any occupational disease law of each of the following states: MISSOURI.”

      . Section 287.310 states that every policy of insurance against liability under this chapter “shall contain an agreement that the insurer accepts all of the provisions of this chapter . . .."

      . Other jurisdictions following the majority rule are: Riley v. Bradley, 252 Ala. 282, 41 So.2d 641, 644[2], 645[7] (1948); State v. Garaygordobil, 89 Ariz. 161, 359 P.2d 753, 755[1] (1961); Van Veen v. Van Veen, 213 Iowa 323, 238 N.W. 718, 725[17] (1931); Davis v. Poelman, 178 So.2d 306, 311[10] (La.App.1965); Wenzel v. Werch, 256 Wisc. 47, 39 N.W.2d 721, 725 (1949); Forecki v. Kohlberg, 237 Wisc. 67, 295 N.W. 7, 10[2] (1940). Of course, any member of the public who suspects an attorney of breach of professional conduct can report him or her to the bar association or other organization having jurisdiction over attorneys. This does not mean that one who has never been the client of an attorney can come into court in an action in which he or she is an interested party and seek to disqualify the opposing attorney for an ethical violation. Murchison v. Kirby, supra, 201 F.Supp. at 123. This Court sees no ethical violation by respondent’s attorney.


author: MARSHALL CRAIG, Special Judge.

text:
    William E. GILES, Appellant, v. STATE of Missouri, Respondent.
    No. 37980.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Dec. 27, 1977.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.

      Richard B. Scherer, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Walter 0. Theiss, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Clayton, for respondent.
   MARSHALL CRAIG, Special Judge.

The appellant was the movant in a proceeding seeking to vacate and set aside his sentence, which remedy he sought under Supreme Court Rule 27.26.

The trial court, without an evidentiary hearing, denied the movant’s motion and entered its order on March 5, 1976.

On April 10, 1975, movant entered a plea of guilty to the charge of second degree murder. The plea was accepted by the court after lengthy questioning by the court in which the movant and the attorneys participated. The movant was sentenced to fifteen years in the custody of the Department of Corrections of the State of Missouri. Movant was given full credit for time spent in jail prior to sentence.

The movant had been originally charged with first degree murder and the trial of the movant was in its third day and the State had completed its case and the defendant had put on one witness and indicated that he was going to put on one more witness. The defendant had originally entered a plea of not guilty by reason of mental disease or defect. At this point the court was informed that the movant desired to change his plea. The State requested and was granted leave to amend the indictment by way of information, by deleting the word “deliberately.” The movant requested that the charge be reduced to manslaughter, but the State declined and recommended fifteen years on the amended charge of second degree murder. After the court fully and completely informed the movant of the reduced charge, of his rights and the consequences, the movant entered his plea of guilty to the charge of second degree murder and was duly sentenced. Movant’s counsel did not recommend that movant accept the State’s offer.

The determining issue on this appeal is whether or not the trial court erred in denying movant’s motion without an evi-dentiary hearing. We conclude that the court did not err.

The trial court found that the plea was entered by the movant of his own free will, without coercion and with counsel present and advising him. The case was in trial and the movant had the advantage of the State’s evidence and the court explained to him that by entering his plea of guilty he relinquished his right to a trial by jury and his right to all defense. The trial court correctly concluded that the transcript at the time the plea was taken, together with the allegations contained in the movant’s motion, clearly indicated that he was not entitled to the relief he sought by his motion.

Movant’s first contention is that the trial court erred in overruling his Rule 27.26 motion without an evidentiary hearing because the transcript of the plea of guilty conclusively shows that movant did not understand the nature of the charge to which he plead guilty; consequently the subsequent plea of guilty was not intelligently, knowingly and voluntarily made.

The test as to whether or not a plea was voluntarily and intelligently made, is set forth in Baker v. State, 524 S.W.2d 144 (Mo.App.1975), wherein it is stated: “The test is not a particular ritual or whether each and every detail is explained to a defendant but whether in fact the plea is voluntarily and intelligently made. Flood v. State, 476 S.W.2d 529, 534 (Mo.1972).” Baker, 524 S.W.2d at 147. See also, Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), and Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975).

In reviewing the record of this guilty plea, the key issue is whether or not movant, by his answers to questions propounded by the court, the prosecution, and his own counsel, expressed an awareness of the nature and the elements of the charge to which he plead guilty. Movant’s understanding of the nature and the elements of the charge is exhibited by the following excerpts from the trial court’s hearing before accepting the plea of guilty:

“THE COURT: You read it back to me, what you understand the deal or plea negotiations to be. You read it back to me.
THE DEFENDANT: To me, I don’t understand I am not guilty, about not guilty by reason of. I feel if I went to the penitentiary and were to relapse they would send me to Fulton State Hospital for correctional treatment. On the case itself it was a profound shooting, I didn’t intent [sic] to kill the man. I feel it is strictly a Manslaughter case. I wanted the ease to proceed on the Manslaughter level because I feel I would not have anything by that. If I ask for a re-trial it would be brought up again, now, so I will accept it, be put in the penitentiary.
MISS FISER: Are you saying because the charge is Murder Second and it is fifteen years you would rather take that fifteen years than continue with the trial?
THE COURT: Do you understand the plea negotiations are at fifteen years and that is what I am going to sentence you to?
THE DEFENDANT: Yes.”
* * * * * *
“THE COURT: Have you and Miss Fiser had any arguments about this case?
THE DEFENDANT: Just that I am not guilty, about not guilty by reason of mental disease or defect.
THE COURT: You do not want to plead guilty under that?
THE DEFENDANT: No, Sir.
THE COURT: Do you think Miss Fiser sold your case down the river, lied to you in any way or did not do a good job in any way?
THE DEFENDANT: I am dis-satisfied. I feel I am guilty of Manslaughter and I am pleading guilty to Murder Second.”
* * * * * *
“THE COURT: . . .
Mr. Giles, just tell me. Tell me what you remember you did that day.
THE DEFENDANT: All right. I was crossing Ashby Road and at this time happened by a yellow Nova, and the man speeded up and it became apparent he was going to strike me with his automobile, so I began crossing the street quicker than he had been. When I got past it, the white line, the man swerved over towards me, whereupon I waved my rifle and pointed it in his direction. He just barely missed me. He went down Ashby Road and I walked further down the street, and the man pulled up and he was at an angle, such as this, and he called me a (ex. del.) and called me some other things in a real loud voice, and he brought his hand up like this. I raised the rifle and fired. I did not fire at vital organs such as the head or heart or spine, I just intended to protect myself.”
* * * * * *

The statements by movant that he didn’t “inten(d) to kill the man,” and “I did not fire at vital organs, such as the head or heart or spine,” coupled with his opinion that the case was “strictly a manslaughter case,” indicated that movant was aware of the contents of the information and that he had some familiarity with the elements of the charge. Movant indicated that even though he would plead guilty to the charge of second degree murder he would rather have pled guilty to manslaughter because he didn’t “inten(d) to kill the man.”

Movant urges that the instant case is “remarkably akin” to the recent case of Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). The instant case, however, is distinguishable from Henderson on its facts.

In Henderson there was no voluntary admission or finding by the court after the trial that the defendant had the requisite intent to commit the crime to which he pled guilty. The defense counsel did not stipulate to that fact and no one explained to the defendant that his plea of guilty would be an admission of the requisite intent; nor did the defendant make any factual statement or admission which could imply that he had such an intent.

In the case at bar, movant admitted raising a rifle and firing it at another human being, this action necessarily implies the element of intent. Where the defendant admits facts, which are sufficient to constitute the offense to which he is pleading guilty, the movant may not later attack the plea of guilty by alleging he did not understand the nature of the charge. Fisk v. State, 515 S.W.2d 865, 868[4] (Mo.App.1974), and cases cited therein.

If we view movant’s statement, “I didn’t inten(d) to kill the man” as a proclamation by movant of his innocence; in the light of movant’s desire to enter a plea of guilty after he was told that the charge would not be further reduced to manslaughter; this case is more properly considered as coming within the ambit of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In the Alford case, the defendant took the stand and testified that he had not committed the murder, however, he still desired to plead guilty to avoid a possible death sentence and to limit the penalty to the 30 year maximum provided for second degree murder. Thereupon, with the State’s incriminating evidence and Alford’s denial before it, the trial court proceeded to accept the guilty plea, and sentence Alford for second degree murder. In the Alford opinion, the court reasoned:

“Thus, while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understanding^ consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” Alford, 400 U.S. at 37, 97 S.Ct. at 167.

Movant was aware that if the case was submitted to the jury, and he was found guilty of first or second degree murder, the range of punishment would be 10 years to life imprisonment. Movant clearly stated that he did not want a verdict of not guilty by reason of mental defect. Movant made a “voluntary and intelligent choice among the alternative courses of action open (to him).” Alford, 400 U.S. at 31, 91 S.Ct. at 164.

For a movant to be entitled to an evidentiary hearing on a motion to vacate sentence and judgment, the motion must allege facts warranting relief and such facts must raise matters not refuted by the files and records and must have resulted in prejudice to the movant. Haliburton v. State, 546 S.W.2d 771 (Mo.App.1977). The movant in this case fully comprehended the proceedings. Vogel v. State, 541 S.W.2d 87 (Mo.App.1976).

In the case of Fisk v. State, 515 S.W.2d 865 (Mo.App.1974) the movant contended, among other things, that he did not understand the technical elements of the charge of murder in the second degree. The court there found that the transcript of the plea reflected that he did understand the elements of the crime. The court there further held that the rules do not require that the court in accepting a plea, explain each element of the offense, but that it was sufficient if the accused understood the “nature of the charge.”

The required legal elements of murder in the second degree may be presumed from the intentional killing of another with a deadly weapon. State v. Williams, 442 S.W.2d 61 (Mo. banc 1968); State v. Sherill, 496 S.W.2d 321 (Mo.App.1973).

We hold that the trial court’s determination that the guilty plea was voluntarily made was not clearly erroneous; and that the transcript of the proceedings conclusively shows that movant is entitled to no relief on this point, under Rule 27.26.

In his final point relied on movant contends that the trial court erred in overruling movant’s motion to vacate and set aside the judgment under Rule 27.26 in that he was denied effective assistance of counsel and that he was not mentally competent to stand trial or to plead guilty. Movant’s contention that he was not adequately represented is refuted by the record:

“MISS FISER: [Cjorrect me if I am wrong, that I lied to you about that, but hearing that five year rule yesterday, he (Giles) felt that he would not desire to be in the mental hospital if the possibility was he could be there that long and, consequently he is not satisfied. If there is something, he can explain to the court.
THE COURT: Do you have any other arguments, Mr. Giles?
THE DEFENDANT: No, Sir.
THE COURT: I have been living with this ease for quite awhile. Do you feel you have had adequate defense and have been properly represented?
THE DEFENDANT: Yes, Sir.”

The law is well-settled in this State that once a guilty plea has been entered, the determination of the adequacy of representation is limited to a determination of the extent of counsel’s incompetence, if any, bears on the issues of voluntariness and understanding. Barylski v. State, 473 S.W.2d 399, 402 (Mo.1971); Baker v. State, 524 S.W.2d 144, 148 (Mo.App.1975). The issues of voluntariness of the plea and understanding of the nature of the charge have been adequately covered under the discussion set out above. In addition, mov-ant has not alleged any new facts that go beyond or are outside the scope of the inquiry made by the trial judge during the course of the plea. The trial court committed no error in overruling movant’s motion in this regard. Smith, 513 S.W.2d at 411.

In regard to movant’s contention that he was not mentally competent, the trial court made an extensive inquiry and specific findings. Part of the inquiry consisted of the report of Doctor Shobhana D. Mehta, M.D., of the St. Louis State Hospital, which was read into evidence. The conclusions stated that the patient: (1) does not suffer from a mental illness as defined by the Missouri Statutes; (2) has a personality disorder of mixed type anti-social and paranoid; (3) is aware of the charges against him. He is also aware of the name of his defense attorney, and he is able to cooperate in his own defense; (4) patient’s account of the incident does not lead me to believe that he was disturbed in any way.

After Doctor Mehta’s report was read into the record the following colloquy transpired:

“MR. WESTFALL (Circuit Attorney): [B]oth Doctor Shuman and the staff at the Fulton State Hospital have informed the Court and testified in their opinion Mr. Giles at present is competent to stand trial.
MISS FISER: We will so agree.
THE COURT: You heard the testimony, Mr. Giles?
THE DEFENDANT: Yes.”

The trial court followed immediately with its finding: “The court would find, based upon the evidence before me, that he is competent to stand trial, competent to cooperate with counsel, competent to give judgment to the trial or plead guilty.” The evidence of record clearly refutes movant’s position.

Movant has failed to show that the allegations of his motion are not refuted by the facts elicited at his guilty plea hearing. Smith, 513 S.W.2d at 411.

The judgment of the trial court is affirmed.

WEIER, CLEMENS and STEWART, JJ., and RONALD M. BELT, Special Judge, concur.


author: REINHARD, Judge.

text:
    STATE of Missouri ex rel. Robert J. KARMI, Barbara Anne Karmi, Emil H. Harding, and Ann Harding, Plaintiffs-Appellants, v. Harry E. VonROMER, James R. Butler, Elizabeth VanUum, Donald L. Bond, Brainerd W. LaTourette, Jr., Carl W. Breihan, and Maurice L. Stewart, members of and constituting the St. Louis County Council, Defendants-Respondents.
    No. 38966.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 14, 1978.
    Anthony J. Sestric, St. Louis, for plaintiffs-appellants.
    Thomas W. Wehrle, County Counselor, Dennis K. Morgan, Donald K. Anderson, Asst. County Counselors, Clayton, for defendants-respondents.
   REINHARD, Judge.

Appellants appeal from an order quashing an Alternative Writ of Mandamus. There appears to be no dispute as to the facts. Appellants are the owners of Lots 8 and C located in Baumgartner Estates, a subdivision in St. Louis County, Missouri. Between the lots is a portion of a public street known as Fireleaf Drive. The portion of Fireleaf Drive involved in this action extends in an east-west direction. Appellants’ property is located on the north and south sides of the street. Appellants filed, in compliance with relevant provisions of Missouri law, § 71.270, RSMo 1969, a petition with the St. Louis County Council on or about April 20, 1976, to vacate a section of Fireleaf Drive. The St. Louis County Council, referred the matter to the St. Louis County Planning Commission and the St. Louis County Department of Streets. They recommended vacation. No further action on the petition was taken by the County Council, which members are respondents herein. On November 24, 1976, appellants filed a Petition for a Writ of Mandamus in the Circuit Court of St. Louis County, and on the same day, an Alternative Writ of Mandamus was issued, directing the respondents to either rule and decide upon appellants petition or to appear before the Circuit Court on December 6, 1976, to show cause why it had refused to do so. Respondents filed a Motion to Quash claiming that Mandamus was not a proper remedy since it constituted an attempt to interfere with acts which were discretionary and not merely ministerial. The court sustained respondents Motion to Quash the Alternative Writ of Mandamus.

Section 71.270, RSMo 1969 provides:

“1. Whenever a tract or parcel of land, being outside the limits of any incorporated town, village or city shall have been subdivided and streets, avenues, roads, alleys, public square or common marked on the recorded plat of said subdivision, it may be lawful for the county court of the county in which the subdivision is located to vacate the streets, alleys, roads, public square or common or part of either upon petition of the owner or owners of the ground lying on both sides of or fronting on the street, avenue, road, alley or public square or common, or part thereof, proposed to be vacated.
2. But no such vacation shall be ordered until proof shall be made to the court of the publication in a newspaper published in the county, or of written or printed notices posted in five public places in the county, at least fifteen days prior to the term of the court at which such petition shall be presented, that application would be made at that term of the court for the vacation of the street, avenue, road, alley, public square or common, or part thereof, as described in the petition. Such notice shall state distinctly the nature of the application, when it is to be made, and what street, avenue, road, alley, public square or common or part thereof, is proposed to be vacated; and if no person interested in such subdivision shall appear and show cause to the court why the vacation should not be made, the court may make the order for the vacation as requested in the petition.” (Emphasis added).

Respondents on appeal contend that the use of the word “may” in the statute compels the view that the rendering of a decision upon a petition to vacate a road is a discretionary, quasi-judicial act and that the St. Louis County Council is within its authority in refusing to act. Respondents cite Duenke v. St. Louis County, 358 Mo. 91, 213 S.W.2d 492 (1948) as authority that the county court, in vacating roads, acts judicially and not administratively. However, in Duenke, the court held that an appeal lies from a road vacation order made under § 7320 (the predecessor of § 71.270). Plaintiffs clearly have the right to appeal an adverse ruling on their petition to vacate.

If respondents’ view is allowed to prevail, appellants will be deprived of their legal right to appeal and to judicial review. Appellants agree the County Council has discretion to vacate or not to vacate a road, but argue that where discretion of this nature is vested in public officials, the courts will by mandamus compel the officers to exercise that discretion, one way or the other.

We agree. The court in State ex rel. House v. White, 429 S.W.2d 277, 280 (Mo.App.1968) stated:

“It has long been established that mandamus will lie to compel a judge to exercise his discretion but that it will not lie to control the manner in which such discretion is exercised. In other words, if respondent had refused to rule on the motion or had refused to actually give it due consideration, mandamus would lie to require that he rule and that he give it proper consideration when so ruling. However, mandamus will not lie to require that he rule in any certain manner.”

Respondents misconceive the Council’s discretion. The words “may . vacate” as used in § 71.270, gives the Council discretion to vacate or not to vacate; but the Council’s duty to consider and reach a decision on the petition is not discretionary.

Respondents claim that the issuance of a Writ of Mandamus constitutes an encroachment upon the legislative function of the St. Louis County Council. The Council has adopted by resolution Rule 25B. This rule provides a procedure in the County Council for the control of its docket but this rule can not be used to circumvent the County Council’s duties.

Respondents have refused to act further upon appellants’ petition. Where the County Council refuses to exercise the power and authority imposed on it by law, mandamus is the appropriate remedy to compel it to act. Since the remedy requested by appellants is a proper remedy, the trial court erred in sustaining respondents’ Motion to Quash the Alternative Writ of Mandamus. The order is reversed and the case remanded.

STEWART, P. J., and STEPHAN, J., concur.

      . An order refusing an Alternative Writ of Mandamus is not appealable. However, once an alternative writ is issued, an appeal can be taken from an order of the court sustaining a Motion to Quash the Alternative Writ. State ex rel. Brandon v. Hickey, 462 S.W.2d 159 (Mo.App.1970).

      . St. Louis County is a charter county. The County Council, established under its charter is charged with duties normally performed by the County Court. In Re Incorporation of City of River Bend, 530 S.W.2d 704 (Mo.App.1975). The provisions in the statutes pertaining to County Court’s duties relating to “Road Vacations” apply to the St. Louis County Council.

      . Appellants in their petition for a Writ of Mandamus, have not asked that respondents be ordered to sustain their petition to vacate, but that respondents be compelled to act and to rule on the petition.

      . See Ross v. Conco Quarry, Inc., 543 S.W.2d 568 (Mo.App.1976); §§ 228.120(2) and 49.230, RSMo 1969.

      . See State ex rel. Best v. Jones, 155 Mo. 570, 56 S.W. 307 (1900); State ex rel. Gehrig v. Medley, 28 S.W.2d 1040 (Mo.App.1930); Weier & Fairbank, “Mandamus in Missouri: A Guide for the Practitioner”, 24 St. Louis Bar Journal No. 3, 10, 14-17, and fn. 76.

      . “Rule 25B. All Petitions for the vacation or relocation of roads, additions, lots, streets, alleys, easements, commons, public squares or parts thereof, where same have been carried on the docket from term to term over a long period of time without action by any County Official or request for action by the Petitioners shall be automatically dropped from the calendar for consideration by the Council, and shall not be brought to the Council’s attention again where such Petition has been on file for two years with no action whatsoever, except continuances from term to term. Any Petitions so dropped from consideration may be reinstated only upon motion of the County Council.” Respondents do not contend that the procedure under this Rule constitutes a decision of the County Council which would be “appealable” and subject to “Judicial Review”.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Patrick Michael BUFALO, Defendant-Appellant.
    No. 38990.
    Missouri Court of Appeals, St. Louis District, Division 1.
    Dec. 27, 1977.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.

      James Asher, Law Intern, Arthur Kreis-man, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant Patrick Michael Búfalo appeals from a judgment entered upon a jury verdict in the Circuit Court of the City of St. Louis finding him guilty of the unlawful sale of a Schedule II Controlled Substance, hydromorphone, also called dilaudid, § 195.-200(1), (4), RSMo 1969. The jury assessed a term of seven (7) years imprisonment. For reversal defendant argues that (1) the trial court erred in orally giving an instruction to the jury during closing arguments instead of in writing, (2) the trial court erred in returning a written answer in response to a question submitted by the jury which under the circumstances constituted a comment on the merits of the case, and (3) the circuit attorney’s opening remarks to the jury during voir dire and the trial court’s comments on the merits at the end of the trial created an atmosphere of substantial prejudice and denied defendant a fair trial. For the reasons discussed below, we disagree and accordingly affirm the judgment.

Defendant does not challenge the sufficiency of the evidence. From the evidence presented the jury could have reasonably found that defendant sold two tablets of hydromorphone or dilaudid for $26.00 to an undercover police officer.

Defendant first argues that the trial court erred in orally giving an instruction to the jury during closing arguments instead of in writing. Rule 26.02(6), V.A.M.R. (1975), provides that in all felony cases the instructions of the trial court to the jury on questions of law and character must be in written form. Since the trial court orally instructed the jury, defendant argues that good cause exists to set aside the jury verdict and grant a new trial. Rules 26.02(6), 26.09, V.A.M.R. (1975); State v. Baugh, 382 S.W.2d 608, 612 (Mo.1964); State v. Jordan, 506 S.W.2d 74, 78 (Mo.App.1974).

The trial court’s instruction was given after defense counsel brought up the alleged obligation of the state to prove any prior wrongdoing on the part of defendant. The circuit attorney objected to this argument and the trial court stated that the jury would remember the evidence. Before beginning closing argument the circuit attorney approached the bench and requested permission to introduce evidence of a prior conviction in response to the suggestion made by defense counsel. The trial court did not permit the introduction of new evidence, but instead orally instructed the jury to disregard the comments by defense counsel concerning the state’s obligation to prove prior wrongdoing.

We do not believe that the instruction of the trial court was an instruction within the meaning of Rule 26.02(6). Every statement of the trial court to the jury is not necessarily an instruction, e. g., State v. Baugh, supra; State v. Jordan, supra. In this case the oral instruction was a correction of defense counsel’s inaccurate suggestion that the state would have produced evidence of prior wrongdoing if there had been such evidence. “An oral direction or cautionary remark not a part of the law of the case need not be in writing.” State v. Jordan, supra, at 78; see also State v. Grant, 394 S.W.2d 285, 288-289 (Mo.1965).

In State v. Jordan, the trial judge corrected a statement made by defense counsel during voir dire. Defense counsel had suggested to the prospective jurors that failure to reach a verdict was “a perfectly acceptable outcome.” The trial court reminded the jury that it was their obligation to resolve the case. On appeal defendant asserted that this oral instruction had been given in violation of Rule 26.02(6). The court found this was not an instruction within the meaning of the rule. 506 S.W.2d at 78. As in the present case, the comment of the trial court was not on the law of the case and was similarly directed as much to defense counsel himself as to the jurors.

Defendant also argues that the trial court erred in returning a written answer in response to a question submitted by the jury. The jury submitted the question at 3:30 p. m. The jury wanted to know whether it would make any difference if this was defendant’s first narcotics offense. The trial court answered in writing instructing the jury that they were to be guided by the evidence as they remembered it. Ten minutes later, at 3:50 p. m., the jury came in with the verdict. Defendant contends that, under these circumstances, the trial court’s answer was a disclosure that defendant did, in fact, have a prior narcotics conviction, a comment on the merits of the case and, given the timing of the answer and the verdict, the decisive factor.

We do not agree. The trial court informed both defense counsel and the circuit attorney of the question and his proposed answer. The trial court gave both attorneys the opportunity to make some kind of stipulation but defense counsel did not object. This point is therefore not properly preserved for review, e. g., State v. Johnson, 510 S.W.2d 485 (Mo.App.1974). Under the plain error rule, it must be found that a sound, substantial manifestation or a strong, clear showing that injustice or a miscarriage of justice will result if the rule is to be invoked. Rule 27.20(c), V.A.M.R. (1975); e. g., State v. Jones, 544 S.W.2d 25 (Mo.App.1976); State v. Wendell, 542 S.W.2d 339, (Mo.App.1976).

We do not believe that the trial court so misdirected or failed to instruct the jury on law of the case that the misdirection or failure, if any, caused manifest injustice, e. g., State v. Tate, 543 S.W.2d 514 (Mo.App.1976); State v. Merritt, 540 S.W.2d 183 (Mo.App.1976); State v. Murphy, 533 S.W.2d 716 (Mo.App.1976). The trial court carefully worded the answer to avoid introducing any new evidence to the jury. The answer merely instructed the jury to rely on the evidence presented in the case. No evidence of a prior conviction had been introduced; in fact, the question was probably prompted by defense attorney’s comments concerning the state’s obligation to prove prior wrongdoing.

Furthermore, the trial court’s answer did not have a prejudicial impact on the jury. The answer directed the jury to consider the evidence as presented in the case. The answer did not indicate to the jury the trial court’s opinion on the merits of the case or the veracity of a witness, e. g., State v. Hill, 518 S.W.2d 682, 685 (Mo.App.1975). The answer did not contain a “hammer instruction.” See State v. Sanders, 552 S.W.2d 39, 40-41 (Mo.App.1977). On this basis we distinguish Sanders, in which the court found the giving of a hammer instruction after the jury foreman indicated the jury was unable to unanimously agree constituted prejudice and reversible error when the jury returned a verdict of guilty ten minutes later.

Defendant finally argues that the circuit attorney’s opening remarks during voir dire and the trial court’s comments on the merits created an atmosphere of substantial prejudice that denied a fair trial. We have already discussed the trial court’s statement to the jury and do not believe it constitutes a comment on the merits.

During voir dire the circuit attorney in his opening remarks informed the jury that they were to listen to the evidence presented by “Mr. Kreisman (the defense attorney) and myself. . . . ” Defendant objected on the ground that defendant had no obligation to present any evidence and requested that the jury panel be discharged. The trial court sustained the objection but overruled the motion to discharge, instructing the jury panel to disregard the circuit attorney’s remark. Defendant argues that the opening remark constituted an impermissible comment on his failure to testify which could not be cured by the trial court’s cautionary instructions.

Comment on the failure of a defendant to testify is a violation of the constitutional privilege against self-incrimination. U.S.Const. Amend. V; Mo.Const. Art. I, § 19 (1945); § 546.270 RSMo 1969; Rule 26.08, V.A.M.R. (1975); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); State v. Hutchinson, 458 S.W.2d 553 (Mo. banc 1970). Missouri cases have required a “direct, unambiguous and unequivocal prosecutorial comment” on the failure of the defendant to testify. State v. Frankoviglia, 514 S.W.2d 536, 541 (Mo.1974). The challenged statement must constitute either a direct reference or “such indirect reference thereto that it was reasonably apt to have directed the jury’s attention to the fact he did not testify.” Eichelberger v. State, 524 S.W.2d 890, 894 (Mo.App.1975), citing State v. Shields, 391 S.W.2d 909, 913 (Mo.1965). Under the direct reference test, the use of the words “defendant,” “accused” and “testify” is crucial, e. g., State v. McNeal, 517 S.W.2d 187, 188 (Mo.App.1974). These words were not used in the challenged statement.

Under the indirect reference test, the court is required to view the challenged statement in the context in which it appears. State v. Eichelberger, supra. Evaluation of the prejudicial impact of a particular statement, however, is a matter within the discretion of the trial court and, absent an abuse of discretion, will not be disturbed on appeal, e. g., State v. Hutchinson, 458 S.W.2d 553, 556 (Mo. banc 1970), citing State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582, 588 (Mo. banc 1950); State v. Scott, 560 S.W.2d 879 (Mo.App. 1977); State v. Jenkins, 516 S.W.2d 522, 528 (Mo.App.1974). We find no abuse of discretion. The challenged statement did not indirectly refer to the failure of the defendant to testify. Although we are critical of the circuit attorney’s comment, the reference was very removed from the kind condemned in the cases and the jury was cautioned by the trial court to disregard.

Accordingly, the judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.

      . We would encourage the trial court to more fully instruct the jury panel that defendant has no obligation to present any evidence and that the burden of proof rests upon the state.

      . We distinguish the related issue of the burden of defendant to present any evidence, e. g., State v. Purvis, 525 S.W.2d 590 (Mo.App.1975) (defendant has no burden to prove his innocence).