author: VANCE, Judge:

text:
    Major DAVIS and Mary Crumes, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 17, 1978.
    Edwin F. Kagin, Jr., Donald E. Armstrong, Jr., Louisville, for appellants.
    Robert F. Stephens, Atty. Gen., John W. Stewart, Asst. Atty. Gen., Frankfort, for appellee.
    Before HAYES, VANCE and WHITE, JJ.
   VANCE, Judge:

Appellant Mary Crumes was indicted and convicted of theft by deception involving more than $100.00, a class D felony, and of criminal conspiracy to rig a sports contest, a class B misdemeanor.

Appellant Major Davis was convicted of complicity in theft by deception and with tampering with or rigging a sports contest.

All charges arose out of the promotion of a “Miss Black U.S.A.” beauty pageant in Louisville. Appellant Crumes promoted the State of Kentucky pageant under a franchise granted by appellant Davis, the founder of the national pageant.

The charges, as they relate to theft by deception, concern the solicitation of a donation from the City of Louisville by the appellant Crumes. The solicitation was made by letter which read as follows:

“We are adults working with youths and their problems. This project will be promoted through all available channels: radio, newspaper, television, people and businesses beginning the first week of February. Young Black ladies from all areas of our city are seeking sponsorship. Donations toward our plan of procedure will be greatly appreciated. Portions of funds will be given to the sickle cell awareness foundation. The pageant’s overall expenditures include: building, schoalarship, (sic), personality workshops, photos, advertising, trophies, band, program books, national franchise fee, trans-portations and lodging. All donations are tax deductable (sic). Please help us to meet these goals.”

A donation of Two Hundred Dollars was made by the City of Louisville. A check was sent to appellant Crumes accompanied by a letter which stated the intended use of the funds and which required the return of an acknowledgement of receipt. The letter and receipt read as follows:

Ms. Mary Crumes, Director
Miss Black U.S.A. Beauty Pageant, Inc.
330 Glendora Avenue
Louisville, Kentucky 40212
Dear Ms. Crumes:
Enclosed, please find a Contingency Fund check in the amount of $200.00. These funds are to be used for support of the 1976 Miss Black U.S.A. Beauty Pageant.
Please sign the below acknowledgement and return in the enclosed envelope. Thank you.
Sincerely,
HARVEY I. SLOANE, MAYOR
CITY OF LOUISVILLE
City of Louisville Check # 734482 Amount of $200.00
I hereby acknowledge receipt of the above check to be expended as outlined above.
/s/ Marv Crumes_ Director of Miss Black Kentucky U.S.A. TITLE
Beauty Pageant DATE 4/30/76

It is the Commonwealth’s contention that theft by deception was committed because no monies were donated to a sickle cell awareness foundation and none was used for scholarships.

It is clear that the solicitation was made to defray the costs of putting on the pageant and was so understood by the city officials responsible for the donation. Those officials did not purport to have any knowledge that the donation was misused. There was no evidence that the pageant made any profit; in fact, the evidence indicates it was promoted at a loss. We do not believe the solicitation gave any basis for an impression that the donation would not be used in its entirety, if necessary, to defray the costs of the pageant.

As far as we can determine from the record, there is no proof that the donation was used in any different manner than intended by the donor. The evidence was insufficient to sustain a conviction and appellant Crumes motion for directed verdict should have been sustained. The charge of complicity against appellant Davis must necessarily fall with the dismissal of the main charge against appellant Crumes.

The convictions for tampering with the outcome of a sports contest must be reversed because a beauty pageant is not a sports contest. KRS 518.060 provides as follows:

(1) A person is guilty of tampering with or rigging a sports contest when, with intent to influence the outcome of a sports contest, he:
(a) Tampers with any sports participant or sports official or with any animal, equipment or other thing involved in the conduct or operation of a sports contest in a manner contrary to the rules governing the sports contest in question; or
(b) Substitutes a sports participant, animal, other than a horse, equipment or other thing involved in the conduct or operation of a sports contest for the genuine person, animal or thing.

A sports contest is defined by KRS 518.-010(3) as any professional or amateur sport, athletic game or contest, or race or contest involving machines, persons or animals that is viewed by the public.

The Commonwealth contends that it was the intention of the legislature in enacting KRS 518.060 to make it a crime to tamper with the outcome of any contest, sport or otherwise, and that a beauty pageant is “a . contest involving . . . persons . . . that is viewed by the public” and thus fits the statutory definition of sports contest.

This contention ignores the word “sports” in the title of the act and also that the word contest in the definition section is clearly limited to professional or amateur sports, athletic games or races involving machines, persons or animals. We also note that KRS 518.060 is preceded in the statutes by KRS 518.040, sports bribery and KRS 518.050, receiving sports bribes and is followed by KRS 518.070, ticket scalping.

We think the proscription of KRS 518.060 was intended to be and is limited in application to sports contests as are normally understood by the usage of that term. If the general assembly intended the act to apply to all forms of contests, it certainly did nothing to make that intention clear by adding the words “sports” to the title and to the body of the act.

The judgment is reversed.

All concur.


source: Caselaw Access Project

author: WINTERSHEIMER, Judge.

license: Public Domain

text:
    T. O. BLACKBURN, Appellant, v. BOARD OF EDUCATION OF BRECKINRIDGE COUNTY, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 17, 1978.

      Arthur L. Brooks, Brooks & Sullivan, Lexington, John J. Slattery, Jr., Louisville, for appellant.
    Thomas C. Brite, Duke & Brite, Hardins-burg, for appellee.
    Before HAYES, VANCE and WINTER-SHEIMER, JJ.
   WINTERSHEIMER, Judge.

This appeal is from a judgment entered April 22,1977, which sustained a decision of the Breckinridge County Board of Education discharging a tenured teacher, and involves the interpretation of part of the Teacher Tenure Act and particularly KRS 161.790. By letter dated May 12, 1975, the appellant was advised that the School Board had met on that date and upon the recommendation of the Superintendent had terminated the appellant’s contract of employment. Five reasons were stated in the letter. On May 19,1975, the appellant notified the Superintendent that he intended to appear at a hearing before the Board, scheduled June 5, 1975, to contest the charges. At the June 5, 1975, hearing, appellant appeared with counsel and objected to the fact that the charges were not specific enough to enable him to prepare an adequate defense. Additional objection was made. All objections were overruled. The hearing was recessed until June 19, 1975, when additional testimony was taken and the hearing concluded. On June 23, 1975, the Board voted to terminate the employment contract and made their written findings. Appellant then appealed to the circuit court and elected to have the issues decided on the evidence produced at the administrative hearing, rather than on a trial de novo. This appeal followed.

The appellant raises the following questions of law:

1) Did the trial court commit reversible error when it sustained the School Board insofar as the charges were not in sufficient specific detail?
2) Did the trial court err when it sustained the School Board in that the charges were not supported by written teacher performance records?
3) Were the charges of inefficiency in the classroom supported by detailed written statements?
4) Were the charges tried before an impartial tribunal?

This Court reverses the judgment of the trial court.

The charges were not in sufficient detail as required by KRS 161.790(3). They did not permit the appellant to prepare an adequate defense and, therefore, denied him due process of law. It is well settled in Kentucky that in a termination proceeding under KRS 161.790, the giving of mere notice of a general grounds for termination in the language used in the statute, such as inefficiency or incompetency, is not sufficient to inform a teacher of the specific nature of the charges against him, so as to permit the preparation of an adequate defense. It has been held that the word incompetency is merely a conclusion, and that specific details by way of names, dates and places upon which such an allegation is based must be provided, so that an intelligent answer to such charges can be made. Knox County Board of Education v. Willis, Ky., 405 S.W.2d 952 (1966); Osborne v. Bullitt County Board of Education, Ky., 415 S.W.2d 607 (1967) and Sparks v. Ashland Independent School District, Ky.App., 549 S.W.2d 323 (1977).

Here, the record indicates that the allegations made against the appellant were not in sufficient detail to satisfy the statutory requirements, and they did not afford him the notice to adequately prepare a defense. He was not told the names, dates, occurrences, or other data upon which his supervisor relied to prove his inefficiency as a classroom teacher. From the subsequent hearings, it is apparent that such information was available to the Superintendent prior to the hearing and before the appellant was given notice of his contract termination. Such information could have been made available to the appellant prior to the hearing.

The charges were not supported by written records of teacher performance, prepared by the Superintendent or principal or other supervisory personnel, as required by KRS 161.790(2)(a). This statute requires that the termination of a tenured teacher contract shall be supported by written records of teacher performance. Here, the only record presented at the administrative hearing was an evaluation made by the principal and dated April 25, 1975. It would appear that this was a rather belated effort to support the allegations. The teacher had been employed in the school system for nine years. The record indicates that no written evaluation of his performance was prepared during those years, and it was only a few weeks before his discharge that any such evaluation was prepared.

The charge of inefficiency in the classroom is not supported by written statements identifying the difficulties that had been previously furnished to the appellant as required by KRS 161.790(l)(d). The statute requires that when the charges upon which the teacher is to be dismissed involve inefficiency, incompetency, or neglect of duty, that a written statement identifying the problem or problems must have been previously furnished to the teacher. It is clear that some opportunity for the teacher to correct the problem should be permitted. This section also provides protection for the teacher against a stale charge. Written charges, as required by KRS 161.790(3), furnished to the teacher at the time of a termination, do not fulfill the requirement of KRS 161.790(l)(d) of a written statement identifying the problem when incompetency, inefficiency, or neglect of duty are the grounds for such termination. The record does not indicate that any such written statement identifying the alleged problems was ever furnished to the appellant.

The appellant’s allegation that he was denied due process of law, because the charges against him were not tried by an impartial panel, was cured by the fact that a voir dire examination was conducted. The record does not support the contention that the Board of Education permitted an attorney who regularly advised the Board to prosecute the case. The decision to terminate the teacher was made at a called meeting of the Board on June 23, 1975. The record here does not indicate a sufficient showing of any improper conduct in regard to that particular decision of the Board.

The specific findings of the Board as to inefficiency in the classroom are based primarily on the performance of the teacher at the hearing. Unquestionably, the teacher’s presentation showed that he was a very poor witness, since he was unable to remember his birthdate, could not recall the names of ten of his students and was unable to explain elementary aspects of certain terms. However, the ultimate determination by any administrative body must be based on appropriate due process, plus a record of evidence to support the decision. The statutory requirements must be complied with in order to give every person accused of improper classroom performance the technical opportunity to defend themselves in an adequate fashion. It appears to this Court that local legal counsel might have been engaged to advise the Board of Education at the inception of the problems which ultimately lead to the termination of the teacher. The failure to obtain legal counsel early is false economy.

Here, the judgment of the trial court was clearly erroneous in that it sustained the findings of the Board of Education, when the record indicates that the charges were vague and not in sufficient detail, and were not supported by written records of teacher performance.

Therefore, the judgment of the trial court is reversed.

All concur.


author: MARTIN, Chief Judge.

text:
    KENTUCKY COMMISSION ON HUMAN RIGHTS, Commonwealth of Kentucky, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT FOR HUMAN RESOURCES, HAZELWOOD HOSPITAL, Appellee.
    Court of Appeals of Kentucky.
    March 17, 1978.
    Galen A. Martin, Thomas A. Ebendorf, Samuel H. DeShazer, Kentucky Commission on Human Rights, Louisville, for appellant.
    Robert W. Riley, Terry L. Morrison, Dept, for Human Resources, Frankfort, for appel-lee.
    Before MARTIN, C. J., and WILHOIT and REYNOLDS, JJ.
   MARTIN, Chief Judge.

This appeal concerns a claim of unlawful discrimination in employment on the basis of religion. On June 15, 1977 the Franklin Circuit Court initially entered its judgment and order upholding the Kentucky Commission on Human Rights’ finding that the Department for Human Resources and its institution, Hazelwood Hospital, had committed an unlawful practice of discrimination because of religion by refusing to hire Linda Sue Nunn (now Bailey) in violation of KRS 344.040. However, on August 11, 1977 the court vacated its June 15 judgment on the basis that the recently decided case of Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977) so required. The issue on appeal is whether this action of the circuit court was proper.

KRS 344.030(5) and 104 KAR 1:050(1) require employers such as the appellee to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship. As the Supreme Court in Hardison interpreted federal statutes and regulations virtually identical to our own in deciding what constituted an undue hardship, we believe Hardison to be most persuasive, if not controlling, in interpreting the Kentucky requirements.

The record discloses that Linda Sue Nunn (Bailey) is a member of the Worldwide Church of God. To remain in good standing with the Church, Mrs. Bailey, among other things, must abstain from gainful employment from sunset Friday to sunset Saturday and on the seven Holy Days of the Church. In May, 1974, she passed a state merit examination for the position of Nurse’s Aide Trainee. On September 12, 1974, she accepted a job as a Nurse’s Aide Trainee on the third shift (11:00 p. m. to 7:30 a. m.) at Hazelwood Hospital. After accepting the job, but before final processing, Mrs. Bailey informed the Nursing Supervisor, Ms. Patricia Burns, that she could not work from sunset Friday to sunset Saturday or on the Church’s Holy Days. However, she did offer to work any other days, including Sundays. Ms. Burns then informed her that no accommodation could be made for her religious observances, and Mrs. Bailey was recorded as having declined the position for refusal to work scheduled hours.

It then appears that on an unspecified date Mr. Charles Workman, Assistant Director in the Department of Personnel for the Commonwealth of Kentucky, contacted Mrs. Bailey by phone concerning her refusal to work on her Sabbath and Holy Days. On November 18, 1974, he followed up the phone conversation with a letter stating that the Department for Human Resources had reviewed her case and concluded that no accommodation could be made because it would be unfair to other employees. He also enclosed an open exam booklet that listed classifications currently being tested by the Commonwealth, and offered to be of further assistance if necessary.

After conducting a hearing on October 24, 1975, the Kentucky Commission on Human Rights entered its findings of fact and conclusions of law on December 12, 1975. Among its findings were that the Department for Human Resources and Hazelwood Hospital did not discuss possible accommodations with Mrs. Bailey and made no effort to accommodate her religious beliefs. It concluded that the Department for Human Resources and Hazelwood Hospital had committed an unlawful practice as defined by KRS 344.040, and entered an order which provided, among other things, that the Department for Human Resources must offer Mrs. Bailey a choice between the first available opening as a Nurse’s Aide Trainee or a position different from but comparable in salary to that of Nurse’s Aide Trainee, accommodate her religious holidays, pay her all wages she would have earned to the date of compliance with this order less actual interim earnings, and adopt a department-wide policy against religious discrimination. The Franklin Circuit Court, after considering the record from the Kentucky Commission on Human Rights and the briefs of the parties, found that the Department for Human Resources and Hazelwood Hospital had failed to sustain their burden of proof under Cummins v. Parker Seal Company, 516 F.2d 544 (6th Cir. 1975). It held that the record failed to show, by substantial evidence, that undue hardship would result in accommodating Mrs. Bailey. Undue hardship was defined by the Franklin Circuit Court as “chaotic personnel problems having a dire effect upon the operation of Hazelwood Hospital.”

The Franklin Circuit Court, upon being advised of the holding in Hardison, supra, vacated its judgment. The court found that as Hardison altered the rule of Cum-mins, the Department for Human Resources and Hazelwood Hospital had now sustained their burden of proof and shown by substantial evidence that undue hardship would result from accommodating Mrs. Bailey.

This Court agrees with the Franklin Circuit Court that Hardison modified the standard for demonstrating undue hardship. There is a clear distinction between the Cummins standard of “chaotic personnel problems” which have a “dire effect” upon an employer’s operation, and the holding in Hardison that more than a “de minimus cost” in the form of either lost efficiency or wages constitutes undue hardship. However, we also agree with the commission that Hardison did not remove the duty of the employer under KRS 344.030(5) and 104 KAR 1:050(1) to make reasonable accommodations short of undue hardship to the religious needs of its employees.

Before defining what it believed to be an undue hardship, the Supreme Court in Har-dison thoroughly discussed what constituted a reasonable accommodation. In prefacing this discussion, the Court said “In brief, the employer’s statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring undue hardship, is clear . . . .”, 432 U.S. 75, 97 S.Ct. at 2272. The Court concluded that the several conferences TWA held with Hardison, the accommodation of his special religious holidays, the authorization of the union steward to seek someone to swap with Hardison, and TWA’s own attempt to find him another job constituted reasonable efforts at accommodation.

Here, the Franklin Circuit Court, in vacating its original judgment, did not attack the finding of the Kentucky Commission on Human Rights that the Department for Human Resources and Hazelwood Hospital made no effort at accommodation with Mrs. Bailey. Indeed, it made no mention at all of accommodation efforts. It merely stated that the standard of proving undue hardship had changed and therefore a different decision was required.

We are of the opinion that to justify vacating its judgment, the court first would have had to declare the commission’s finding that no effort was made at accommodation clearly erroneous pursuant to KRS 344.240(2). However, based on the record before us, such a conclusion would not have been warranted. At best, the efforts at accommodation consist of a phone call from the Assistant Director of Personnel, Workman, to Mrs. Bailey, and a follow-up letter accompanied by a test booklet which only guaranteed her the opportunity to take a test to determine if she could even qualify to be interviewed for another position. The hospital itself made no attempts whatsoever at accommodation. Such efforts pale before the efforts of TWA in the Hardison case.

Of course, the employee cannot sit idly by and shift all the responsibility for accommodation to the employer. Here it appears that Mrs. Bailey made a genuine attempt at a solution. She testified that she offered to work any days other than her Sabbath and special religious holidays, but the record reveals that this offer was ignored. Her failure to respond to Assistant Director Workman’s letter is excusable because the offer by Mr. Workman of further assistance can hardly be called a reasonable attempt at accommodation by the employer.

In view of the facts before us, we do not believe that the efforts made by the appel-lee to accommodate the religious beliefs of Mrs. Bailey were reasonable, and it is clear that additional efforts such as investigating the possibility of other employees “swapping time” with her could have been made without amounting to undue hardship.

Therefore, the judgment of the Franklin Circuit Court is reversed and this case is remanded to the circuit court for further proceedings consistent with this opinion.

All concur.


author: BARDGETT, Judge.

text:
    CITY OF KENNETT, Missouri, a Missouri Municipal Corporation, Respondent, v. Eugene M. AKERS, Appellant.
    No. 59970.
    Supreme Court of Missouri, En Banc.
    April 10, 1978.

      James F. Ford, Ford, Ford, Crow & Reynolds, Kennett, for appellant.
    David W. Keathley, Poplar Bluff, Harold B. Treasure, Kennett, for respondent.
   BARDGETT, Judge.

This is a suit by the City of Kennett for damages done to its electric power and light system caused by a radio antenna tower which was being erected by defendant Ak-ers falling onto the City’s power lines. The jury verdict and judgment was for plaintiff-respondent City for $18,563.19. Defendant-appellant Akers appealed to the Missouri Court of Appeals, Springfield district, which affirmed and, among other things, held that the instruction authorizing a verdict for plaintiff which stated, “First, defendant allowed the antennae tower to fall into the electric power line, and Second, defendant was thereby negligent, and . ” submitted specific, not general, negligence. Defendant’s application for transfer was sustained by this court principally to consider whether the submission mentioned was specific or general and, if general whether plaintiff, having pleaded both specific and general negligence, was entitled to submit on a general negligency (res ipsa loquitur) type of instruction. The court considered this to be a matter of general interest and importance. Art. 5, sec. 10, Mo.Const.

The parties will be referred to as plaintiff or City and defendant. The accident happened April 14, 1973. Defendant had purchased a radio antenna tower to be erected on his lot in Kennett, Missouri. The tower was of a common type built in a triangle with each side being approximately ten inches and being in six 10-foot sections, with an antenna on top approximately seven feet in height and having total weight of about 200 to 225 pounds and total height of 67 feet. Defendant had previously put up several other similar towers in and around Kennett. Defendant had a welder construct a steel double-hinged plate with one of the plates being stationary and attached to the concrete base and the other bolter „o the tower and hinged to the north so that the tower could be raised thereon. This was a self-sustaining tower. On April 14, 1973, defendant, with some other men aiding him, assembled the tower on the ground, laid it across a dump truck at an angle and placed the antenna on top thereof, and with a block and tackle running south to the back of the yard, pulled the tower up and into place. There was attached to the tower a cable on each of the three legs thereof, which were to be used as additional precaution in sustaining the tower with one cable to the southwest, one to the southeast, and one to the north. The cables were attached approximately 40 feet from the base of the tower. The men secured the cables to light or telephone poles to the north, southeast and southwest. Defendant had obtained other light or telephone poles in order to subsequently bury same in the ground for anchorage, thus removing the cables from the light or telephone poles. The tower was higher than the electrical lines. Defendant’s house was about 15 to 20 feet in height and the tower was 40 to 47 feet above the house. After the tower was secured at the base, one of the men proceeded up the tower to about the 40-foot level and removed the block, tackle and rope which had been used to raise the tower. The tower had been constructed as a self-sustaining tower and had been standing for approximately 45 minutes, and while they were in the process of attaching the guy wires for additional securing purposes the tower fell. Defendant did not know what caused it to fall. He did not drop the tower nor did anybody else drop it. When the tower fell, it struck the tree and electrical lines to the south and injured defendant and two others who were holding the cables. Defendant’s hands were burned but he remained at the site, and the other two were taken to a hospital. One of the primary lines fell down across the chain link fence and the fire therefrom immediately jumped to the ground, started melting the sand and turning it into hunks of glass-like material with a lot of sparks, arcing, fire, blue and red flames, and another primary line fell into the tree and was sparking and smoking, and all of same continued until Oscar Poe, lead lineman for the City, terminated same manually at the disconnect located to the south of the lines. The tower fell to the south and the block and tackle, together with the rope, were directed to the south and would not have prevented the tower from falling in that direction. Oscar Poe arrived at the scene about 45 minutes after the incident and when he arrived he discovered two primary and two secondary lines down and fully energized with one primary on the chain link fence sizzling, popping, arcing and shooting out fire seven or eight inches. There was a hole burned in the fence. Another primary line was in the tree smoking. The tower was lying over in the tree wrapped in secondary wires. This continued until terminated by the disconnect.

Plaintiff’s second-amended petition alleged eight items of negligence against the defendant, some of which are clearly allegations of specific negligence. Paragraph 3(f) alleged, “Defendants carelessly and negligently allowed the tower to fall into and collapse into the electric power line owned and operated by the Plaintiff.”

Plaintiff submitted the case to the jury by instruction No. 2 which reads:

“Your verdict must be for plaintiff if you believe:
First, defendant allowed the antennae tower to fall into the electric power line, and
Second, defendant was thereby negligent, and
Third, as a direct result of such negligence the plaintiff sustained damage. MAI: 17.01 Modified By PL”

The defendant contends instruction 2 submits general negligence; that plaintiff was not entitled to submit general negligence unless the case is one where the res ipsa loquitur doctrine applies, and even then not where specific negligence is also pleaded in plaintiff’s petition.

It is obvious that par. 3(f) and instruction 2 allege the same — not different — type of negligence. They are either both general or both specific. There is a plethora of cases in this state and elsewhere where the issue was whether a particular allegation or submission was either general or specific. See cases cited at 836-837 in May Department Stores Co. v. Bell, 61 F.2d 830 (8th Cir. 1932), and Right to Rely on Res Ipsa Loquitur, 160 A.L.R. 1450, 1469. The plaintiff contends par. 3(f) and instruction 2 are specific negligence citing and principally relying upon Robinett v. Kansas City Power & Light Co., 484 S.W.2d 506 (Mo.App.1972). Defendant contends the pleading and submission were general, citing and principally relying upon Hunter v. Norton, 412 S.W.2d 163 (Mo.1967).

In Robinett the plaintiff Robinett was the driver of a truck which he drive into contact with a temporary overhead electrical wire. The defendant submitted contributory negligence of plaintiff in an instruction which authorized a defendant’s verdict if plaintiff negligently failed to keep a lookout for electric wires or caused or permitted the truck to contact the electric wire. On appeal plaintiff contended that the instruction submitted specific (lookout) and general (permitting truck to contact wire) negligence and that combining the two constituted error. The court disposed of the contention that the submission of contributory negligence in permitting the truck to contact the wire was general by comparing it to vehicular rear-end cases which have been held to submit specific negligence and their holding that the submission was one of specific negligence, citing Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914 (1942). The same analogy cannot realistically be made when the event involves a falling object whose course and direction are simply not directly controlled throughout its movements by a “driver”.

Neither the allegation of negligence as set forth in par. 3(f) nor the submission found in instruction 2 point to any particular act or failure of the defendant as the cause of the fall of the antenna tower. The plain words of the allegation and submission are general and the court so holds.

Next we must determine if this is the kind of occurrence which can be properly pled and submitted on general — res ipsa loquitur — negligence.

Falling objects have been fertile ground for the application of the res ipsa loquitur doctrine ever since a barrel of flour rolled out of a warehouse and fell on a passing pedestrian in Byrne v. Boadle, 2 H. & C. 722, 159 Eng.Rep. 299 (1863). Much has been written about the doctrine and the courts of various states have defined or explained it differently. In Missouri it is considered a rule of evidence. Empiregas, Inc., of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657 (Mo.1974), 58 Am.Jur.2d Negligence, sec. 475, at 48, and, if applicable to a given factual situation or event, simply means that the happening of the event provides sufficient circumstantial evidence so as to allow, but not compel, the jury to infer from that evidence that the event happened because of the defendant’s negligence and to so find. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559 (Banc 1932). The event must be an unusual occurrence of a character which ordinarily results from negligence and from which, therefore, negligence is a reasonable inference. Whether or not a given event is that unusual occurrence which ordinarily results from negligence is a judicial decision which is arrived at by judges applying their common experience in life to the event which gives rise to a suit and deciding whether the criteria for the res ipsa loquitur are satisfied.

The event in the instant case is the falling of defendant’s radio antenna tower which was being erected or had just been erected by the defendant and other men acting for and under the direction and control of defendant on the defendant’s property-

In Stubblefield v. Fed. Res. Bank of St. Louis, 356 Mo. 1018, 204 S.W.2d 718 (1947), (overruled in Marquardt v. Kansas City Southern Railway Co., 358 S.W.2d 49 (Mo. banc 1962), infra, because it failed to separate two successive and distinct acts of negligence, the failure to warn and barricade the area and the falling of the wedge), plaintiff was walking on a sidewalk in St. Louis when a wooden wedge fell from near the top of the Federal Reserve Bank Building striking her on the head and shoulders. On the question of whether or not this type of accident comes within the res ipsa loqui-tur rule, the court said at 204 S.W.2d 720:

“Had the plaintiff pleaded and relied upon the mere circumstance of the fall of the wedge there could not be the slightest doubt but that she would have presented a typical res ipsa loquitur situation. Kelly v. Laclede Real Estate & Investment Co., 348 Mo. 407, 155 S.W.2d 90, 138 A.L.R. 1065; Pandjiris v. Oliver Cadillac Co., 339 Mo. 711, 98 S.W.2d 969; Neal v. Twelfth & Grand Ave. Bldg. Co., 228 Mo.App. 536, 70 S.W.2d 136; Walsh v. Southwestern Bell Tel. Co., 331 Mo. 118, 52 S.W.2d 839; Kean v. Smith-Reis Piano Co., 206 Mo.App. 170, 227 S.W. 1091. In the Kelly case a piece of terra cotta fell from a building and struck a man sitting on the sidewalk. In the Pandjiris case a brick fell from a third story window and struck a pedestrian. In the Kean case a flagpole fell from a building and hit a pedestrian. And, in the Neal case a stick of wood thirty-seven inches long and two inches square fell from the seventh story of a building in process of construction and struck a pedestrian. But, whether the basis of the view is sound or not (38 Am.Jur., Sec. 305, p. 1001), we are definitely committed to the rule that a plaintiff who pleads specific negligence is thereby precluded from relying upon res ipsa loquitur. The Missouri cases are collected in the annotations, 79 A.L.R. 48, 51, 52; 160 A.L.R. 1450, 1453. In this case by pleading in addition to the fall of the wedge the failure to erect a barrier over the sidewalk and failure to warn of the attendant danger the plaintiff pleaded specific negligence. Rice v. White, Mo.Sup., 239 S.W. 141.”

More recently in Lawley v. Kansas City, 516 S.W.2d 829 (Mo.App.1974), it was held that res ipsa loquitur was applicable where a valve gate fell from a sling as it was being lowered into a pit by a city crew.

The occurrence in the instant case— an antenna tower falling — is an unusual occurrence and does not ordinarily happen in the absence of negligence. There is no question but what exclusive control was in the defendant. The doctrine is applicable to this occurrence.

As stated in Stubblefield, the practice in Missouri has generally been that if a plaintiff pleads specific negligence he cannot submit on res ipsa loquitur even though the occurrence is such as would be subject to the rule res ipsa and even though plaintiff had failed to prove the precise cause of the occurrence. This concept seems to be premised on the proposition that if a plaintiff says in his petition that a specific negligent act caused the occurrence then plaintiff has shown that he does not need the benefit of res ipsa loquitur. This concept presumes that all allegations made in a petition will be proved or at least that plaintiff can prove them if he wants to do so. Experience dictates that is not so at all. The petition is the first pleading in a case and contains allegations plaintiff’s attorney believes to have been the cause of an occurrence and which he hopes to prove. Sometimes his belief is incorrect and his hope is in vain.

But if the occurrence is one which is subject to the res ipsa loquitur rule then is there some good reason why plaintiff should be deprived of it when plaintiff’s efforts to prove the specific or precise cause fail? In this connection it must be observed here that if a plaintiff pleads general negligence he may submit evidence of specific negligence and will, nevertheless, be allowed to submit on res ipsa loquitur unless the plaintiff’s evidence shows the precise and specific negligence cause. Timmons v. Kurn, 231 Mo.App. 421, 100 S.W.2d 952 (1935). Additionally, a plaintiff may, prior to trial, during trial, or prior to a new trial, amend his petition by striking all allegations of specific negligence and proceed to trial on general negligence. Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W.2d 21, 24 (1930); Maxie v. Gulf, M. & O. R. Co., 356 Mo. 633, 202 S.W.2d 904 (1947), and same case on retrial, 358 Mo. 1100, 219 S.W.2d 322 (1949).

In Stubblefield the court questioned the soundness of the rule there applied but simply said that whether it was sound or not it would be applied because it had been applied in the past. Considering the soundness of the rule in the light of this case, the following observations are in order. If we hold the submission to be general (res ipsa loquitur) and reverse and remand for new trial because the petition contained allegations of specific negligence, along with the allegations of general negligence, the plaintiff would be able to simply strike the specific allegations and proceed with the new trial on the allegations of general negligence. The evidence in the case which the court and jury would hear would not necessarily vary one bit from that of the first trial. The instructions may be worded somewhat differently but they would constitute a submission of general negligence— again res ipsa loquitur — and the jury would again decide the case on the same evidence, virtually the same instructions, and the same argument.

That is what happened on the second trial in Maxie, where the court said at 219 S.W.2d 323:

“This is a second appeal by the railroad in a suit for personal injuries under the Federal Employers’ Liability Act, as amended, 45 U.S.C.A. sec. 51 et seq. At the first trial the case was submitted to the jury under the res ipsa loquitur doctrine, and the jury gave plaintiff judgment for $17,000. Upon appeal, we reversed and remanded on the ground submission under the res ipsa loqui-tur doctrine was error since the petition had pleaded acts of specific negligence on the part of the railroad. Our opinion is reported in 356 Mo. 633, 202 S.W.2d 904.

“After remand plaintiff amended his petition to plead general negligence only, went to trial the second time, again submitted his case under the res ipsa loquitur doctrine, and again recovered a judgment. The judgment was reduced by remittitur from $32,000 to $16,000, and the railroad has appealed from the reduced judgment.

“The facts are not disputed. At the second trial they were the same as those adduced at the first trial. The railroad put on no testimony at the first trial. At the second the testimony it adduced was to a large extent merely cumulative of plaintiff’s testimony.”

In May Department Stores Co. v. Bell, supra, at 839, the court said there were but three states which strictly follow the rule in Missouri; namely, Kansas, Montana, and Texas. The “rule” referred to, of course, is that if a plaintiff’s petition contains allegations of specific negligence and/or allegations of general negligence, the plaintiff will not be allowed to submit on res ipsa loquitur even though plaintiff’s proof did not show the precise and exact cause of the occurrence and even though the occurrence is one to which res ipsa loquitur is applicable. The existence of this rule in Missouri has caused numerous appeals to turn on the question of whether an allegation in the petition was general or specific. The numerous decisions on the subject as early as 1932 prompted the court in May Department Stores Co. to say at 836: “It is virtually impossible to determine from the Missouri decisions what is to be regarded as an allegation of specific negligence and what an allegation of general negligence. This grows out of a lack of uniformity in the application of the rule, rather than in the statement of it, . ” citing 22 cases where the pleading was held specific and then citing 13 cases where the pleading was held to be general.

The court then said at 837: “Under the holdings in Price v. Metropolitan St. R. Co., [220 Mo. 435, 119 S.W. 932], Stauffer v. Metropolitan St. R. Co., [243 Mo. 305, 147 S.W. 1032], and Porter v. St. Joseph Ry., Light, Heat & Power Co., [311 Mo. 66, 277 S.W. 913], the allegation of negligence with which we are concerned appears to be general; while under Feary v. Metropolitan St. Ry. Co., [162 Mo. 75, 62 S.W. 452], Davidson v. St. Louis Transit Co., [211 Mo. 320, 109 S.W. 583], and Pointer v. Mountain Ry. Construction Co., [269 Mo. 104, 189 S.W. 805], the complaint apparently charges specific negligence.”

On this issue the court of appeals, after holding a pleading to be general, certified Sanders v. City of Carthage, 9 S.W.2d 813 (Mo.App.1928), to this court because prior cases on the matter were in irreconcilable conflict. This court then held the pleading to be specific and reversed and remanded for new trial even though the occurrence (the falling of defendant’s electric power line) was one to which res ipsa loquitur is applicable. Sanders v. City of Carthage, 330 Mo. 844, 51 S.W.2d 529 (1932). What happened on remand for new trial is not known to us, but we do know that plaintiff could have simply stricken the specific allegation of negligence from the petition (a matter the jury would not be informed about) and at trial introduced exactly the same evidence, used virtually the same instructions, made the same argument, and had the second jury decide the same case on the same issues. The requirement that a plaintiff who pleads both specific and general negligence in a case to which res ipsa loquitur is otherwise applicable cannot submit on res ipsa loquitur simply because he pleaded specific may have served a sound purpose when discovery was limited or nonexistent, but to continue with such a rule today simply to enforce a technical, and perhaps outdated, rule of pleading by requiring a new trial that would or could be exactly the same as the first trial, is wasteful, unproductive, and causes unnecessary expense to the parties and delay in the disposition of disputes.

Marquardt v. Kansas City Southern Railway Co., 358 S.W.2d 49 (Mo. banc 1962), was an F.E.L.A. case where plaintiff alleged res ipsa negligence in the sudden and unusual movement of a bleeder pipe and specific negligence with reference to premises underfoot in that the premises were slick, slippery, etc. Plaintiff submitted on res ipsa loquitur and a verdict was returned in favor of plaintiff. Defendant appealed contending that it was error to allow plaintiff to submit on res ipsa because plaintiff also alleged specific negligence. Plaintiff’s injuries occurred as a result of slipping and falling when he was frightened and ran from a whirling bleeder pipe. This court affirmed the judgment reasoning that there were two successive acts or occurrences of alleged negligence, each separate and distinct from the other. The first in sequence was the whirling bleeder pipe (res ipsa lo-quitur) and the second was allegations as to the slippery conditions underfoot (specific negligence). The case was submitted on a res ipsa loquitur instruction in which the whirling bleeder pipe was hypothesized as the occurrence which contributed to the fall and injury. The court decided that the hypothesized occurrence was one subject to the res ipsa loquitur rule and because the two alleged negligent occurrences (whirling bleeder pipe and slippery footing) were successive rather than concurrent, that the case constituted an exception to the rule against allowing a res ipsa loquitur submission where both general and specific negligence are pleaded. The dissenting opinion in Marquardt had been the divisional opinion which had been sent to the parties when the court transferred the case to banc. The dissenting opinion disagrees saying the “exception” found by the majority to exist was but an excuse for deviating from pre-exist-ing rule reference pleading specific and general but submitting general. However, it should be recognized that if the dissenting opinion had been adopted the new trial could have consisted of exactly the same evidence, same instructions and same argument, and resulted in the same verdict. The only change required would have been for plaintiff’s attorney to strike the allegation of specific negligence from the petition.

What these cases demonstrate is that there was no error materially affecting the merits of the action in the first trial and the second trial was ordered simply to adhere to a technical rule which no longer serves a practical purpose. And judgments should not be reversed unless error materially affecting the merits of the action is found to exist. Sec. 512.160, subsec. 2, RSMo 1969; Rule 84.13(b).

The court of appeals, Kansas City district, had the same issue before it in Bratton v. Sharp Enterprise, Inc., 552 S.W.2d 306 (Mo.App.1977). That court recognized that it was the settled procedural law of Missouri that a plaintiff may not submit under a res ipsa loquitur theory if he either (1) pleads specific negligence only or (2) pleads general negligence but proves the real and precise cause of the injury. We add (3) if plaintiff pleads both general and specific he was precluded from submitting general negligence (res ipsa loquitur). The court of appeals opinion thoroughly considered the past procedural law and the more recent amendments to Rule 55.10 and concluded that this court has changed its procedural law relating to pleading by amending Rule 55.10 in 1973 so that it now reads:

“A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or equitable grounds.” (Italics added.)

The italicized portion of the 1973 amendment was found by the court of appeals to constitute the authority for a plaintiff to plead both res ipsa loquitur and specific and removed the specific pleading impediment to submission on res ipsa loquitur provided that plaintiff is not precluded by his evidence from submitting res ipsa loquitur. The court of appeals, of course, could not overrule prior cases of this court but certainly has the jurisdiction to construe a rule and reach a result different from those cases handed down prior to the adoption of the amended rule. We believe the rationale of the court of appeals is sound. The views of this court on the matter set forth supra and those of the court of appeals coincide and reach the same result.

The court holds that a plaintiff may, in a case where res ipsa loquitur is applicable to the occurrence causing the damage, plead both general (res ipsa loquitur) negligence and specific negligence and is not precluded from submitting general solely and simply because of the specific allegation in the pleading. Cases holding to the contrary are overruled.

The instruction used by plaintiff in this case has been set forth supra for the purpose of considering whether it sounded in specific or res ipsa loquitur negligence and not for approval as a model in this type of case. The instruction set forth in Lawley v. Kansas City, supra at 834, more closely approximates the res ipsa loquitur instruction appearing in MAI No. 31.02(2) and is a better form to follow until such time as a specifically applicable MAI is published. However, there is no complaint that the form of the instruction used here prejudiced defendant aside from the fact that it did not submit a specific item of negligence, a matter ruled supra.

Defendant also contends that the trial court erred in giving instruction No. 5 submitted by plaintiff because (1) the evidence was insufficient as to proof of damages, (2) more than one “occurrence” was involved requiring the court to substitute a descriptive term to limit the jury to occurrences caused by defendant, and (3) as only property damage was involved the instruction should have been in the form prescribed by MAI No. 4.02.

Plaintiff offered the only evidence on the issue of damages. Defendant’s sole objection was to the qualifications of the City’s witness who testified about the damage to the transformer. The witness augmented his qualifications and then proceeded to give his opinion of the damage without further objection by defendant. Under these circumstances, defendant has waived his right to object on appeal. Rule 84.13(a); Federal Deposit Insurance Corp. v. Crismon, 513 S.W.2d 305, 307 (Mo.1974).

Defendant contends that there were two occurrences in this cause, one at the site where the tower fell and the other at the transformer. The evidence viewed in a light most favorable to the City does not support this conclusion. The tower fell causing a serious overcurrent which traveled at or near the speed of light past the impotent breakers until it reached the transformer. The entire sequence took only a fraction of a second. The damage to the transformer was the direct and proximate result of the tower falling across the power lines. No modification of the instruction was required under this point.

Defendant’s third objection to instruction No. 5 is also without merit. Instruction 5 was MAI No. 4.01: “If you find the issues in favor of the plaintiff, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe [it] sustained as a direct result of the occurrence mentioned in the evidence.”

MAI .No. 4.02, which defendant contends should have been submitted, uses as the measure of damages the difference between the fair market value before and after the occurrence plus compensation for loss of use. Clearly, such an instruction is inadequate where the evidence shows the difference between the fair market value before and after the accident greatly exceeds the cost of repair. MAI No. 4.02 (Supp.1976), which measures damages on the cost of repair plus loss of use, would have been proper had not additional items of damages been sought.

Any reasonable expenses proximately resulting from damage to property are usually a proper element of recovery (25 C.J.S. Damages § 48a, at 770-772) and such expenses are not to be classified as property loss or property damage (Rotert v. Peabody Coal Co., 513 S.W.2d 667, 677 (Mo.App.1974)). Plaintiff sought damages for items not susceptible to being measured by before and after value as required by MAI No. 4.02 nor by the reasonable cost of repair as per MAI No. 4.02 (Supp.1976). These items of damage include the cost of loading the transformer onto a lowboy for transportation to the repair site — $170.00, and the labor cost of moving the damaged transformer out and the repaired one into the substation — $475.80.

MAI No. 4.02, which is to be applied where damages involve property damage only (MAI 4.02, “Notes on Use”) was not proper in this instance. Damages were correctly submitted under the more general MAI No. 4.01. If defendant felt it too general, it was incumbent upon him to submit an explanatory or modifying instruction. Barber v. M.F.A. Milling Co., 536 S.W.2d 208, 210 (Mo.App.1976).

As MAI No. 4.02 was not necessary, it was also unnecessary to give MAI No. 16.02 defining the term “fair market value”. Defendant’s argument that MAI No. 4.02 was required is overruled.

Defendant’s final contention contains two points. Defendant contends that Eugene Hale, an expert produced by the City, considered not-in-evidence reports in his testimony and that Mr. Hale’s failure to examine the inside of the transformer made it impossible for him to ascertain the nature of the damage. As to the latter point, Mr. Hale testified that an internal examination of the transformer was not necessary in order to answer the hypothetical question directed to the issue of whether the damage to the transformer was the direct and proximate result of the collapse of the tower. As to the former point, it is unclear exactly what “report from somebody else” it is that Mr. Hale is claimed to have considered or what part of such report he considered in answering the hypothetical question. The written or oral report could have represented an assumed fact contained in the hypothetical question or a report contained in testimony already in evidence. Simply because an expert bases his opinion on what someone told him does not necessarily make the opinion insufficient where the fact related is established at trial and submitted in the hypothetical question. Harp v. Illinois Central Railroad Co., 370 S.W.2d 387, 393 (Mo.1963). The cross-examination of Mr. Hale failed to point out how these “reports” were used in his testimony and it is not up to us to speculate about his use of some written or oral report. There was no showing that whatever facts Mr. Hale may have seen in the “report” were not also in evidence in this case. The record is too vague on this matter for the court to conclude prejudicial error was committed.

The judgment is affirmed.

MORGAN, C. J., and FINCH, RENDLEN and SEILER, JJ., concur.

HENLEY and DONNELLY, JJ., concur in result.

      . Failure to “guy” the tower, constructed it in violation of Rule 95.37 FCC Code, violation of certain of the City’s ordinances, etc.

      . Others errors were found but it is apparent that the principal reason for reversal was the pleading.


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Willie GARRETT, Defendant-Appellant.
    No. KCD 28765.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    Clifford A. Cohen, Public Defender, Sixteenth Judicial Circuit, Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.
    Willie Garrett, appellant pro se.
    John D. Ashcroft, Atty. Gen., Michael Finkelstein, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant Willie Garrett appeals his conviction and a court-imposed sentence of twenty years imprisonment under the Second Offender Act. His appointed counsel raises an issue concerning error in the failure to suppress lineup identification and in-court identification on the ground that it was impermissibly suggestive, and the defendant, by pro se brief, raises the issue of the propriety of the application of the Second Offender Act because of the nature of the offense relied upon as the prior offense. The judgment and conviction are affirmed.

The issue of submissibility is not raised, and a brief outline of the facts will suffice.

The robbery occurred at a convenience store in Kansas City, Missouri between 5:00 and 6:00 p.m. Two black men entered the store, one wearing a ski mask and the other covering his face with a stocking cap. They took money and three transistor radios. They were armed with a handgun.

Before proceeding to discuss the issue raised by appointed counsel, it should be noted that the motion for a new trial was out of time, having been filed more more than thirty days after the entry of the verdict in violation of Rule 27.20(a). Such a tardily-filed motion is a nullity and preserves nothing for review. State v. Brown, 543 S.W.2d 796 (Mo.App.1976); State v. McIntyre, 542 S.W.2d 793 (Mo.App.1976). The error was not briefed as plain error, and the only way in which the claim of error with respect to the trial court’s action on the motion to suppress can be reviewed is sua sponte. When federally guaranteed constitutional rights of a defendant are involved, the court will sua sponte grant plain error review. State v. Jackson, 495 S.W.2d 80 (Mo.App.1973); State v. Heinrich, 492 S.W.2d 109 (Mo.App.1973); State v. Sockel, 490 S.W.2d 336 (Mo.App.1973). It is unnecessary in this case to make an extended analysis as to whether or not the error alleged in this case constitutes a matter of plain error that would be reviewed sua sponte because it is patent on this record that even if it were considered as plain error, the second requisite for granting relief under the plain error rule is absent. There is no manifest injustice because the admission of the identification testimony in this case, even if it were to be considered as plain error, is not prejudicial.

To illustrate this, a somewhat more detailed review of the facts is required. The identification testimony was the subject of a lengthy pre-trial motion to suppress. During that hearing, it was developed that the eye witnesses who identified at the lineup and at the trial were basing their identification upon the defendant’s hair style, general build, and appearance since the mask prevented a clear view of the defendant’s features. If that evidence stood alone as identifying the defendant as the perpetrator of this offense, a serious issue might be raised. However, the facts in this case indicate that it is almost a hot pursuit situation. At the time of the robbery, the two blacks left the store. Almost immediately thereafter a police car arrived on the scene, and the officer began what is described as an “area investigation.” In the course of that, two children immediately across the street from the convenience store were queried, and they indicated that two men ran out of the store carrying two bags, and one of them had a ski mask on. The children watched the two run from the store to an apartment building in the immediate vicinity which they identified, both by street address and by taking the officer to the apartment building. The apartment building apparently consisted of two dwelling units having a common entrance. The officers entered and checked one of the dwelling units where only children were found. In the other dwelling unit, the one identified by the children by street number as being the place the men ran to from the convenience store, the officer found the defendant, another individual, and an adult female, as well as a small child. The officer made a cursory search for other individuals, arrested the defendant’s companion pursuant to a computer check which revealed he had outstanding warrants and questioned the defendant as to whether anyone else had been in the apartment, to which he replied in the negative. A detective then arrived and, pursuant to a consent, made a more detailed search of the premises. In the course of the search he recovered the three radios which were unequivocally identified as the loot from the convenience store, a paper sack of the type used to carry the money away from the robbery and which was a brand of paper sack used at the convenience store. This sack contained change. A weapon was found which was identified by the eye witnesses as “similar to” or “looking like” the weapon used in the robbery. The detective then placed the defendant under arrest and the defendant attempted to pass to the adult female a roll of bills which was confiscated by the officer. These bills were of the denomination and approximate amount taken in the robbery. The two youngsters who led the police to the apartment unequivocally identified the apartment where defendant was found as the one to which the robbers fled.

It is clear from the entire record that the perpetrators of the robbery were in view from the time they exited the convenience store to the time they entered the designated apartment building. That, coupled with the denial by the defendant of any other person’s entering the apartment, makes the inference inescapable that the defendant and his companion were the perpetrators. That inference is further strengthened by the recovery of the loot and the weapon. Under these circumstances, the eye witness identification is only incidental to the proof in this case. The record shows that it was not emphasized nor treated by the state as basic to its proof of the offense, the entire thrust of the evidence being towards the chain of evidence connecting the defendant with the offense.

The defendant, in his pro se brief, raises two points. One point he conceded by reply brief was frivolous. The second point consists of a claim that the information does not plead his incarceration as required by the Second Offender Act, § 556.-280 RSMo 1969. The defendant relies on State v. Martin, 441 S.W.2d 376 (Mo.1969) and State v. Wiley, 412 S.W.2d 485 (Mo.1967). Martin and Wiley were based upon the holding in State v. Watson, 383 S.W.2d 753 (Mo.1964), and Watson was overruled in State v. Ellifrits, 459 S.W.2d 293, 296 (Mo. banc 1970). In Ellifrits, the court held that the specific language of imprisonment need not occur in the information so long as the information contains an allegation from which an inference would arise that the defendant had been incarcerated or placed on probation or parole. In the instant case, the information charges the defendant with being sentenced pursuant to 18 U.S.C.A. § 5010(c). That section of the federal statute provides that such a sentence is in the custody of the Attorney General of the United States. The control and management of federal penal system is, by statute, imposed upon the Attorney General. 18 U.S.C.A. § 4001. A reading of the federal statutes indicates that he was not conditionally released, requiring the finding that he was committed to some penal or correctional institution. Factually, there can be no dispute that the defendant was in prison pursuant to the federal sentence since he testified at length concerning his incarceration in the federal system. An attack such as this on an information after verdict without prior motion to the court requesting a statement of particulars is insufficient to avoid the conviction.

Judgment of conviction affirmed.

All concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    In re MARRIAGE OF Jane Lee and William Robert CAVITT. Jane Lee CAVITT, now Jane Lee Surles, Respondent, v. William Robert CAVITT, Appellant.
    No. 38515.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 14, 1978.

      Edward J. Delworth, Overland, for appellant.
    Dennis Taylor, Clayton, for respondent.
   ALDEN A. STOCKARD, Special Judge.

This is an appeal by the father from a judgment which modified a previously entered decree of dissolution of marriage pertaining to the custody of an eight year old female child. We affirm.

The decree of dissolution of marriage was entered March 3, 1975. Primary custody of the child was granted to the mother with temporary custody in the father on stated weekends. On March 25 the father filed a motion to modify in which he alleged that the mother had remarried, and that she had removed the child from the State of Missouri, thereby denying him the right of temporary custody as provided in the decree of dissolution. On June 12 a hearing on the motion was held, or at least started, with the mother’s counsel present. The court ordered that “Pending hearing and disposition of [the father’s] motion” the mother was to “comply with the temporary custody provisions of the decree forthwith by sending the child * * * by airplane” to the father. The mother did not comply with this order, but on June 26 filed a motion to modify in which she alleged that she had remarried and that by reason of her husband’s employment she was forced to move to California. She prayed for an order granting to her- the right to remove the child to California and for such other orders deemed proper. On July 9 the court entered an order in which it recited that a hearing was held on July 3 on the father’s motion and that the mother had not complied with the order of June 12. The court then entered an order that the father “shall have the right of custody of [the child] for the balance of the summer months of 1975 until September 1, 1975 and until further order of this court.” Relying on this order, and with the assistance of officials of the State of Oregon where the mother and her husband had moved, the father obtained actual custody of the child and returned her to the State of Missouri. No additional hearing was held or order made prior to September 1,1975, and on November 19 the mother filed a motion that the father be adjudged in contempt for his refusal to relinquish custody to the mother, and in the alternative a motion to modify “the child custody provisions * * * as modified on July 9” to “reflect the geographical separation of the parties.” A hearing on this motion was set for December 1, and on that date the father filed a motion to modify in which he alleged the mother had moved away from Missouri and that it was “in the best interest of the child that she remain in the full custody” of the father. After hearing and on December 5 the court entered an order on January 21, 1976, which in its material parts was as follows:

“The custody of the minor child of the parties, * * * shall remain, on an interim basis, with the [Appellant] until the end of the child’s current school year, the Court specifically retaining jurisdiction of the Motions to Modify in order for the Court, upon a review of the matter during or at the end of the child’s school year, to enter an order as to the permanent custody and temporary custody arrangements with regard to said child and as to child support for said child. The Court is of the opinion that the conclusion of the child’s current school year will constitute a change in circumstances.”

The above order, by reason of the language used was not intended to dispose finally of the pending motions to modify filed by each party, and on August 13, 1976 a hearing was held on the pending motions. On August 18, the court entered its order modifying the decree to provide that the mother “be awarded primary custody” of the child with temporary custody at stated times in the father.

The father has appealed, and by his first point asserts the trial court erred in changing the custody of the child from him to the mother “as there was not a sufficient showing of change of circumstance to warrant a change of custody.”

In his argument under this point appellant asserts that the trial court “awarded the custody of the minor child to [him] on July 9, 1975 until further order of the court,” and “having awarded the custody of the child [to him], it is presumed that he is a fit and proper party to have custody,” and that it then “becomes incumbent upon the party seeking a change of custody to show a change in circumstances since the last order of court and that such a change of custody would be for the child’s welfare.”

Appellant relies on the principles stated in In re Wakefield, 365 Mo. 415, 283 S.W.2d 467, 471 (Mo. banc 1955) that an “order awarding the custody of a minor child, and contained in an unappealed decree of divorce, is a final order entitled to the force and effect of a final judgment, unless and until modified by the court making the decree,” and in M_ L_ v. M_R_, 407 S.W.2d 600 (Mo.App.1966), that “a custodial order once made becomes as conclusive as any other order * * * and may be disturbed only upon proof of changed conditions subsequent to the entry of the order coupled with a showing that modification of the order would promote the best interests of the child or children involved.” He then argues that “There is little change in circumstances of the parties since the order of the court on July 9, 1975.”

We are in agreement with the two cases cited by appellant, but in relying on them appellant has misconstrued the effect of the order entered on July 9, 1975. The decree making a permanent award of custody was the one entered on March 3, 1975. The order of July 9 was an interim order, and it provided only that the father should have custody “for the balance of the summer months of 1975 until September 1,1975, and until further order of this court.” It is clear that the court appreciated that a change in the circumstances had occurred by reason of the mother moving out of the State, but this order did not, and obviously was not intended to constitute a final adjudication of the issue of custody. Subsequently on January 21, 1976 the court entered another order, expressly stated to be another interim order, awarding custody to the end of the school year. At the hearing on the motions to modify held on August 13, 1976, the court for the first time subsequent to March 3, 1975, purported to make a final determination as to which parent should have primary custody.

The issue on this appeal is not whether there was a change of conditions subsequent to the issuance of the interim order on July 9, 1975, but whether in view of the changed conditions resulting from the mother moving, first to California and then to Oregon, the award of primary custody to the mother with temporary custody to the father is in the best interest and welfare of the child. We note, however, that appellant does not specifically present that issue. Because this is a child custody case we will review the record to determine whether the determination of custody by the trial court complies with that standard. In doing so we must first consider the second and remaining point in appellant’s brief.

Appellant asserts that the trial court ‘•‘erred in admitting into evidence the hearsay testimony of the deputy juvenile officer containing statements of third parties about [1] the character of [the mother’s] present husband and [2] arrest records of appellant thus denying him the right of cross examination, and [3] in admitting the conclusionary statements contained therein as they invaded the province of the court.”

Laurie Lakey, a deputy juvenile officer of St. Louis County, testified that pursuant to an order of the court she had made a “child investigation study.” Presumably this was done pursuant to V.A. M.S. § 452.390, Laws of Missouri 1973 p. 470. She testified at length concerning her investigation and as to what she saw at the father’s house and at the home of his aunt who took care of the child during week days and with whom the child frequently stayed. She then testified that she wrote to “a social agency” in Oregon and asked that it interview the mother and her husband, and that she evaluate the home there and obtain information concerning the child’s progress in school. As soon as she mentioned the Oregon report, appellant objected to any reference to its contents on the basis it was hearsay. The objection was overruled, and the deputy juvenile officer then related, in substance, everything contained in that report. The witness stated that the Oregon report was attached to her report, and that in making her recommendations concerning custody of the child she had taken into consideration the information contained in the Oregon report. The report of the deputy juvenile officer, to which the Oregon report was attached, was admitted into evidence. The Oregon report consisted entirely of hearsay, and much of the report prepared by the deputy juvenile officer was hearsay and consisted of conclusions.

Section 452.390, supra at pp. 704-705 provides that a court may order “an investigation and report concerning custodial arrangements for [a] child,” and that “the investigator shall furnish his report to counsel and to any party not represented by counsel” at least ten days prior to the hearing on the issue of custody. It also provides that “No one else, including the court, shall be entitled thereto prior to the hearing,” but that “any party to the proceeding may call as witnesses the investigator and any person whom the investigator has consulted.” This clearly indicates that the report, as such, is not admissible in evidence over objection unless the contents, or portions thereof, are otherwise admissible under the rules of evidence. The deputy juvenile officer could testify to what she saw during her investigation, but the admission into evidence of the hearsay testimony concerning the report, and the report itself, was error. Benjamin v. Benjamin, 370 S.W.2d 639 (Mo.App.1963); 24 Am.Jur.2d Divorce and Separation, § 793. We are of the opinion, however, that the erroneous admission of this evidence does not require a reversal of the order determining custody.

Rule 73.01 provides that in a case tried before the court without a jury, the appellate court “shall review the case upon both the law and the evidence as in suits of an equitable nature.” In such a review “ ‘Prejudicial error’ or ‘reversible error’ in the admission or rejection of evidence is not an issue on an appeal ⅜ ⅝ *. The issue is whether the evidence should have been admitted and considered, or rejected and not considered, and when that issue is determined the next issue is what the judgment of [the appellate] court should be, based upon a consideration of the competent and admissible evidence.” Menos v. Hodges, 499 S.W.2d 427, 429 (Mo.1973). We shall review this case upon the law and the evidence, but in doing so we shall not take into consideration any of the improperly admitted evidence which appellant has properly challenged on this appeal.

The mother and her husband live in a tri-level house in Aloha, Oregon that was purchased for $40,000. The husband is manager of a K-Mart store. The mother is not employed outside the home but devotes her time to being a housewife. When the child was with her mother she attended a nearby school, and the child’s progress there was very good or above average. The mother served as a “teacher’s aide” at school, and she was a Brownie Leader in the troop to which the child belonged. The child loves her mother, and according to the mother the child and her stepfather get along very well, but there was some indication from the child that she did not like him, at least not in the way she felt about her father. When the child was with the father, the mother would send her clothing and toys. There is nothing in the record to indicate that the mother’s home is not a suitable place for the child to live.

The father has a small brick house in Vinita Park in St. Louis County. The juvenile officer described it as a “neat and comfortable home,” but when the child was in St. Louis she stayed with an aunt of the father during the week days. The aunt’s home was described as “neat.” The father would pick up the child after work each Friday and return her to the home of the aunt after the weekend. The child attended a nearby school where her progress was “low average.” The aunt, age 74, has cared for the child before the dissolution of marriage, and there was a “warm relationship” between the two.

The father admitted, without further explanation except that he had frequently had pneumonia, that he had a “lung problem,” but stated that it did not interfere with his work. He stated that he had smoked marijuana, but he saw nothing wrong in doing so except that it was against the law. Friends had come to his house and smoked marijuana in the presence of the child, but he said he did not smoke “too much” in her presence. He admitted that he had been convicted of possessing a controlled substance. The father had at his home an old Packard hearse, which would not run, in which there was a coffin. The purpose or use of this is not explained. He also had pierced the ears of persons at what the child called his “head shop” where he sold head bands, earrings, bracelets, and necklaces. The child’s ears had been pierced and at least one of the father’s ears had been pierced. The father admitted that prior to the marriage dissolution he belonged to what he called a “family riding motorcycle gang,” but he stated that he had disposed of his motorcycle about three months before the trial. However, there was an indication that he continued to have some involvement, and the child testified that she was scared when she rode with her father because she was afraid she would fall off when they “took those fast turns.” The father had “about twenty” tattoos on his body and “used to tattoo as a business.” The child testified that when she was at her father’s house she slept in her canopy bed, and that when her father’s girlfriend stayed overnight the girlfriend slept “with my dad.” The father stated that when they would go on vacation, all three of them, that is, the child, the father, and the father’s girlfriend, slept in the “camper trailer together.” His aunt told the juvenile officer that the father had a “pretty ugly temper.”

The child testified with considerable affection for each parent, and also for her aunt. She expressed the wish to live with her father, but there was a strong indication that she believed, and possibly was caused to believe because she was told so by the aunt, that if she stayed in St. Louis her mother would return from Oregon. We recognize that § 452.375(2), Laws of Missouri, P. 189, provides that in determining custody one of the relevant factors is the wish “of [the] child as to his custodian,” but we agree with R_ S_ M_ v. J_D_M_, 542 S.W.2d 361 (Mo.App.1976), that an eight year old child usually cannot have a rational basis for a preference as to which parent should have custody because, as we believe happened in this case, a child of that age frequently will make such decisions upon considerations unrelated to his welfare.

Our review of the evidence properly before us, and our consideration of all the attending circumstances convinces us that the trial court correctly and properly decreed that the mother should have primary custody of this eight year old female child with the father having only that temporary custody as stated in the decree.

The judgment is affirmed.

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


author: CLEMENS, Presiding Judge.

text:
    Muriel KELLER, Respondent, v. James Logan STEVENS, Appellant.
    No. 38682.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 14, 1978.
    Sommers & Holloran, Inc., Donald B. Sommers, St. Louis, for appellant.
    William R. Kirby, Carl I. Katzen, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Plaintiff Muriel Keller sued for damages for injuries suffered when the car in which she was riding was rear-ended by a car driven by defendant James Stevens. Plaintiff got an $11,000 verdict and judgment, from which defendant has appealed.

The critical issue before us: Did the trial court err in receiving plaintiffs evidence of how the collision occurred when defendant had admitted the collision but denied plaintiff’s resultant injuries?

In the pleading stage, defendant relied on a general denial. At trial defendant amended his answer and admitted the collision, did not deny negligence, but specifically denied plaintiff’s alleged injuries resulted therefrom.

To prove the collision was the proximate cause of her injuries plaintiff, over defendant’s objections, introduced evidence of defendant’s speed and the force of impact, including the relative positions of the two cars at the time of and immediately after the impact. Defendant challenges the admission of this evidence, contending it was irrelevant since he had admitted the collision. We deny the challenge.

“Liability for negligence arises only when three elements exist: a duty, a breach of that duty, and causation [of injury].” Anderson v. Robertson, 402 S.W.2d 589 [10-12] (Mo.App.1966). Here, defendant admitted only his negligent driving. By denying plaintiff’s.:'injuries, defendant compelled plaintifftó prove not only the extent of her injuries but also that her claimed injuries were proximately caused by the admitted collision. That she did by showing the force of the impact causing those injuries. We deny defendant’s contention that the court erred in admitting evidence as to how the collision occurred.

Defendant briefs two other points, contending error in plaintiff’s verdict-directing instruction and an excessive verdict. Neither at trial nor in his motion for a new trial did defendant challenge the verdict director, nor did he complain of an excessive verdict in his after-trial motion. Neither point is preserved for review.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.

      . For further discussion of the essential element of proximate cause see Zitzman v. Glueck Box Co., 276 S.W. 23[1] (Mo.1925); Karr v. Chicago R. I. & P. Ry. Co., 341 Mo. 536, 108 S.W.2d 44[3 — 4] (1937); and § 32, 57 Am.Jur.2d, Negligence.


text:
    James SAIN, Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION et al., Respondents.
    No. 38740.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 14, 1978.

      Bruce Nangle, Clayton, for appellant.
    William M. Clinkenbeard, Charles B. Fain, Jefferson City, for respondents.
   CLEMENS, Presiding Judge.

Plaintiff-claimant James Sain appeals from the judgment of the circuit court affirming the decision of the Labor and Industrial Relations Commission whereby it denied him four weeks’ employment benefits.

The issue: Was plaintiff’s act in filing a bogus insurance claim, based on his divorced wife's disability, a ground for firing him, so as to disqualify him from unemployment compensation benefits? This depends on whether plaintiff’s act in filing the disability claim was “misconduct connected with his work.”

Plaintiff had been employed by McDonnell-Douglas Corporation (hereafter McDonnell) for eight years. On May 21, 1974 he filed a $588 health benefit insurance claim for his wife’s disability. Only when his divorced wife garnisheed plaintiff’s wages did McDonnell learn plaintiff had been divorced since February 15, 1972. A further check of McDonnell’s records showed plaintiff had made similar insurance claims of more than $6,000.

On August 26, 1975 McDonnell discharged plaintiff for violation of a company rule which prohibited falsification of company records and reports, including insurance claims. Thereafter, plaintiff filed a claim for the unemployment benefits that gave rise to this action. The Division of Employment Security’s deputy determined plaintiff was discharged for “misconduct connected with his work” and for that reason was disqualified for his claimed unemployment compensation benefits pursuant to § 288.050, RSMo.1969.

Plaintiff appealed to the Division’s appeals tribunal and a hearing was held February 17, 1976. McDonnell’s records showed: The company had a group health insurance plan covering all its employees, through its insurer, General American Life Insurance Company. McDonnell “pay[s] the entire amount of all employees’ insurance claims, through General American, with a five per cent override.” McDonnell had established rules and regulations for employees concerning the insurance program. Employees are informed of these rules through booklets issued at the start of employment. Plaintiff admitted he had received a copy of the group insurance policy, denoting McDonnell as the policyholder with himself named as “insured person.”

The appeals tribunal referee affirmed the decision of the division’s deputy finding: Plaintiff had been discharged for filing several fraudulent claims against General American; plaintiff did not deny the alleged misrepresentation; the intentional misrepresentations of material facts concerning disability benefits is misconduct; and, therefore, plaintiff had been discharged for misconduct connected with his work.

For purposes of our review, the decision of the appeals tribunal is deemed to be the decision of the Commission, pursuant to § 288.200. Plaintiff then filed a petition for review in the circuit court and the cause was submitted on the administrative record. The circuit court affirmed the decision of the Commission and plaintiff has appealed.

Plaintiff contends the Commission erred in finding: (1) That a misrepresentation by an employee to a third-person insurance carrier constitutes misconduct connected with his work; and (2) that he made fraudulent insurance claims.

Our reyiew is governed by § 288.210 requiring us to review in the light most favorable to the findings of the Commission. Lyell v. Labor and Indus. Relations Com’n., 553 S.W.2d 899[1] (Mo.App.1977). We may not substitute our judgment on the evidence for that of the Commission, Laswell v. Industrial Com’n of Missouri, 534 S.W.2d 613[1] (Mo.App.1976), and we must affirm if the Commission’s findings are supported by competent, substantial evidence and are not contrary to the overwhelming weight of the evidence. Clark v. Labor and Indus. Rel. Commission, 549 S.W.2d 573[1] (Mo.App.1977).

We consider the two issues in reverse order. Plaintiff contends the Commission’s finding that he made fraudulent insurance claims is not supported by the evidence because there is no showing he knew his wife had divorced him. In his appellate brief, however, plaintiff admits that the facts constituting the alleged misconduct are undisputed. The parties stipulated at trial that plaintiffs wife divorced him early in 1972. Plaintiff’s claims for insurance benefits for her disability were in evidence. Plaintiff did not refute the charges, nor did he introduce evidence to contradict them. He had the burden of establishing his right to the benefits. Clark v. Labor and Indus. Rel. Comm., 549 S.W.2d 573[2] (Mo.App.1977). Plaintiff failed to meet that burden. We hold, therefore, that the Commission’s finding that plaintiff made fraudulent insurance claims was supported by the evidence and the reasonable inferences arising therefrom.

We now consider plaintiff’s second contention and decide whether his actions constituted “misconduct connected with his work,” thereby disqualifying him for unemployment benefits pursuant to § 288.050.2, RSMo.1969. This is a question of law and upon review we are not bound by the Commission’s decision. Belle St. Bank v. Ind. Com’n Div. of Emp. Sec., 547 S.W.2d 841[2] (Mo.App.1977).

The statute does not define “misconduct connected with his work.” We must interpret those words in their “plain and rational meaning in the light of the purpose of the Employment Security Law.” Citizens Bank of Shelbyville v. Industrial Com’n., 428 S.W.2d 895[6] (Mo.App.1968). That law provides funds for “persons unemployed through no fault of their own” (§ 288.020(1)) and its disqualifying provisions must be strictly construed. Citizens Bank, supra.

This is an indefinite area here and in other jurisdictions. One source suggests the concept of “connection with the work” can best be defined “by the gradual process of inclusion or exclusion as the cases arise.” Disqualification for Voluntary Leaving and Misconduct, 55 Yale L.J. 147, 166. “Circumstances to be considered are whether the act occurred during the working hours of employment, whether it occurred on the employer’s premises, whether it occurred while the employee was engaged in his work, and whether the employee took advantage of the employment relation in order to commit the act.” 55 Yale L.J., supra, at 166. The author cautions that the absence or presence of one of those circumstances is not conclusive.

Other guidelines have been set out: Poor workmanship, lack of judgment, or the inability to do the job do not disqualify a claimant on the basis of misconduct; deliberate falsifications of employment information or job records are deemed to be wilful misconduct. Unemployment Insurance Benefits, 17 Villanova L.R. 635. The author of that research also determined that claimants discharged for a violation of a company rule or order constituted the largest group involving misconduct. 17 Villa-nova, supra, at 647.

A recent Missouri case also analyzed the question of what constitutes “misconduct connected with his work.” See Laswell v. Industrial Com’n. of Missouri, etc., 534 S.W.2d 613 (Mo.App.1976). Although that decision does not touch the present case “on all fours,” it does note that Missouri and other jurisdictions have accepted the definition (or one similar) found in 76 Am.Jur.2d, Unemployment Compensation § 52, p. 945:

“ . . . misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for misconduct must be an act of wanton or wilful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.”

The disability insurance policy here describes McDonnell as the “policyholder,” with plaintiff and his dependant, if any, falling into an “eligible class.” Plaintiff admits he was divorced from his wife in 1972. He does not deny he made several insurance claims on behalf of his “wife” after the divorce and thereby obtained substantial funds. We cannot agree with plaintiff’s contention that there was no “misconduct connected with his work.” It was only through his employment relationship with McDonnell that he became eligible for insurance benefits. Plaintiff ignored the caveat on McDonnell’s insurance claim form providing that a false statement knowingly made can be cause for disciplinary action. Further, plaintiff violated the company rule prohibiting falsification of company records, including insurance claims. We find substantial justification for such a rule, and further find sufficient nexus between plaintiff’s misconduct and his employment relationship with McDonnell. We hold plaintiff’s action was “misconduct connected with his work,” and he is disqualified for the four weeks’ unemployment insurance benefits pursuant to § 288.-050.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.