text:
    Diana ZIEGLER, Appellant, v. TARRANT COUNTY CHILD WELFARE UNIT, Texas Department of Human Resources, Appellee.
    No. 2-84-159-CV.
    Court of Appeals of Texas, Fort Worth.
    Nov. 29, 1984.

      Mark S. Cochran, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., and C. Chris Marshall, Asst. Dist. Atty., Fort Worth, for appellee.
    Before JORDAN, BURDOCK and HILL, JJ.
   OPINION

JORDAN, Justice.

The Child Welfare Unit of the Texas Department of Human Resources brought this action against the natural mother of five children to terminate her parental relationship with her children. The suit also sought to terminate the parental rights of three different fathers of the five children. The mother’s rights were terminated under TEX.FAM. CODE ANN. sec. 15.02 (Vernon Supp.1984), the trial court finding that she knowingly placed or knowingly allowed the children to remain in conditions and surroundings which endangered their physical and emotional well-being and engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical and emotional well-being of the children. The court also found that termination would be in the best interest of the children. The court also terminated the parental rights of Larry Keith McKinney, father of three of Ziegler’s children, and of Henry Clay Ziegler, father of Crystal Lynn Ziegler. The court further found in its judgment that the alleged father of Rex Allen Thompson was Ray Smith who had failed to establish any right or interest in or to the child, Rex Allen Thompson, and that the parent-child relationship between Ray Smith and Rex Allen Thompson does not exist in law or in fact.

Only the natural mother, Diana Lynn Ziegler, appeals from the decision terminating the parental rights.

We affirm.

There are general principles which apply to all parent-child termination proceedings. There is a strong presumption that the children’s best interest is usually served by keeping them with their natural parents. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976). Once evidence is produced, however, to support a finding that that presumed fact does not exist, the case will proceed as if no presumption exists. In Interest of Guillory, 618 S.W.2d 948, 951 (Tex.Civ.App.—Houston [1st Dist.] 1981, no writ). In involuntary parent-child termination proceedings, the essential facts must be proved by “clear and convincing evidence.” In Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980). The clear and convincing standard is defined as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” State v. Addington, 588 S.W.2d 569, 570 (Tex.1979).

This is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal cases.

Diana Lynn Ziegler raises fifteen points of error in her appeal. By her first six points of error, it is her position that there was no evidence, or in the alternative insufficient evidence, to support the trial court’s findings that she knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children; or that she engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children; or that termination of the parent-child relationship between Ziegler and her children would be in the best interest of the children. These six points of error will be grouped and discussed together.

In determining a “no evidence” point, we may consider only the evidence and inferences which tend to support the finding of the jury and must disregard all evidence and inferences to the contrary. Stodghill v. Texas Emp. Ins. Ass’n, 582 S.W.2d 102, 103 (Tex.1979); In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). If there is any evidence of probative force to support the trial court’s finding, the point must be overruled and the finding upheld. In Re King’s Estate, 244 S.W.2d at 661-62.

Where the challenge to a jury finding or a finding of the court is framed as an “insufficient evidence” point, we are to consider all the evidence in the case, both that in support of and that contrary to the finding, to determine if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). If the appellate court so determines, the finding must be set aside and a new trial ordered. Id.

This action to terminate the natural mother’s parental rights to her five children was brought under TEX.FAM. CODE ANN. sec. 15.02(1)(D), (E), and subsection 2 of sec. 15.02. Under 15.02(1)(D), the parental rights may be terminated if the court finds that the parent has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child. Section 15.02(1)(E) permits termination if the parent engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child. Subsection 2 of sec. 15.02 requires that termination be in the best interest of the child. Both elements of subdivision 1 and subdivision 2 must be established before parental rights may be terminated. Termination may not be based on a finding of the best interest of the child alone. Finding of violation or infringement of some of the provisions of subdivision 1 is also required. Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976); Wiley, 543 S.W.2d at 351.

Diana Lynn Ziegler, both in her original brief and in a reply brief, argues that the Child Welfare Unit has failed to meet its burden of proof as to her children: Rex Thompson; Keith McKinney; Jessica McKinney; and Crystal Lynn Ziegler. Ziegler claims that there was not clear and convincing evidence that she had either placed or allowed these four children to remain in conditions or surroundings which endangered their physical or emotional well-being. She also maintains that as to these four children the proof was insufficient to show she had engaged in conduct or knowingly placed these children with persons who engaged in conduct which endangered their physical or emotional well-being. Additionally, she contends that there was a complete lack of evidence, or insufficient evidence that it would be in the best interest of the four above-named children to terminate her parental rights..

We shall recite only enough facts to portray the surroundings and home environment of these five children for approximately one and half to two years prior to the time this case was tried in February of 1984. The record shows a young woman, in her late 20’s, married twice, with five children ranging, at time of trial, in ages from three to eight, who had held nine or ten jobs in the year or year and a half preceding the trial, and who had had many residences during that time. The first husband, Lawrence McKinney, father of three of her children, beat her and their oldest boy, Kelly, and on one occasion McKinney allegedly held Kelly out of a window at their home. Diana Lynn, though she eventually divorced McKinney, lived with him for sometime after these instances of brutality to their son.

She next married Henry Clay Ziegler, who, the record shows on one occasion, placed Kelly in scalding bathtub water as punishment. Both of Kelly’s feet, top and bottom, were badly burned. Ziegler was convicted of the offense of injury to a child for this offense and received a ten-year probated sentence. Diana continued to live with Ziegler even after he got out of jail for the offense of injury to a child and once lived with him in Illinois shortly before this trial. Moreover, she failed to obtain medical treatment for Kelly’s badly burned feet for two full days after that incident.

Diana Ziegler was convicted of the offense of failure to report child abuse involving the burning of Kelly’s feet in October of 1982. In October of 1983, Diana pled guilty to possession of amphetamines, a controlled substance.

The Child Welfare Unit eventually took possession of all five children in either late 1982 or early 1983. In addition to the scalding incident, there was evidence of severe bruises, of different ages, on Kelly’s back, thigh, and chest, which suggested battered child syndrome to the doctor at John Peter Smith Hospital who examined Kelly. There was also evidence that at different times Diana Ziegler was associated with, and on occasion lived with, people who had criminal records for child abuse. She once lived with a woman, Barbara Pruitt, who had received a 20-year sentence for child abuse, and once permitted a man named Herman “Hawkeye” Rogers, who had previously molested a three-year-old child, to live in her home. “Hawkeye” beat her and at one point, imprisoned her in her own home. Some of these incidents occurred when all of her children lived with her, and before they were removed by the Child Welfare Department. On one occasion when Diana Lynn had an unsupervised visit with Kelly in her home after the children had been removed by the Child Welfare, Diana Lynn Ziegler spanked Kelly hard enough to leave bruises from one side to the other, from top to bottom, on Kelly’s buttocks. At time of trial, she was living in a house with a 60-year-old woman and with a man named Denver Taylor, for whom she worked as a plumber’s helper.

It is true that practically all the evidence of child abuse and mistreatment concerned Kelly McKinney, the second oldest of these five children, and that there was little or no evidence of any actual abuse or mistreatment of the other four children. There was evidence that some of the other four children had emotional problems. There was evidence that Jessica had nightmares and that at least two of the boys had bedwetting problems. Other than this evidence, there was no indication of any physical or emotional problems with the other four children.

Diana Ziegler contends, therefore, that there is no evidence or legally insufficient evidence to support the trial court’s findings with regard to Rex, Keith, Jessica or Crystal.

The question thus presented is whether or not the evidence of the severe and repeated abuse and mistreatment of the child, Kelly McKinney, and the evidence of the mother’s instability and dependence on different men who had a history of abusing children, warrants the termination by the court of her parental rights to all of the children. We hold that it does.

Proof of just one of the acts enumerated in sec. 15.02(1), the Texas Family Code, when coupled with sufficient proof that termination is in the best interest of the children, will sustain the proponent’s burden of proof by clear and convincing evidence. Wiley, 543 S.W.2d at 351. Evidence in this case is sufficient to support the trial court’s findings under both sees. 15.02(1)(D) and (E), as well as subsection 2 of 15.02.

It has been held that the decision to terminate the parent-child relationship under subsection (E) requires that the conduct be committed in the presence of the child but does not require that it be directed toward the child. Lane v. Jefferson County Child Welfare Unit, 564 S.W.2d 130, 132 (Tex.Civ.App.—Beaumont 1978, writ ref’d n.r.e.). In the case at bar, even though there was an absence of proof of any abuse or mistreatment directed at the other four children, there is ample evidence of violent acts and behavior directed at Kelly and at his mother in the presence of the four other children.

A case somewhat similar on its facts to the one at bar is In Interest of S.D.S., 648 S.W.2d 351 (Tex.App.—Fort Worth 1983, no writ). There the natural father committed acts of violence which endangered the children and the mother failed to respond or take any action to protect the children for five months. Id. at 353. The majority opinion held there was clear and convincing evidence that the statutory grounds of sec. 15.02(1)(D) and (E) had been met. Id. As in that case, the mother’s concern for her children in this case has been untimely. Appellant’s failure to seek medical attention for Kelly’s second-degree burns was related to her fear of having the children taken away from her and possibly to her desire to protect herself and her then husband. See Reed v. Wormley, 554 S.W.2d 254 (Tex.Civ.App.—Eastland 1977, writ ref’d n.r.e.), where the court relied upon evidence indicating that the mother’s main concern was her relationship with the father of the child rather than with the child. Id. at 258.

With respect to the finding of the trial court that under the evidence in this case it would be in the best interest of all of these children to terminate the parental rights of their mother, we refer to nine factors considered by courts in ascertaining the best interest of the child which are set out in Holley, 544 S.W.2d at 372. Our review of this record indicates that a number of these factors are present here.

The mother’s history of general instability, her inability to hold a job, her general insecurity, and her propensity for dependency upon men she knew to be wife and child abusers, all as reflected in this record, convinces us that the termination of her parental rights was necessary.

We hold that the trial court’s findings under sec. 15.02(1)(D) and (E), as well as subsection 2 of 15.02 are supported by clear and convincing evidence that the termination of parental rights in this case was proper. Ziegler’s first six points of error are overruled.

By her points of error seven through fifteen, Diana Ziegler complains of the admission in evidence of the Child Welfare Unit’s exhibits nos. 1 through 9. The exhibits consisted of a report in affidavit form of the treating physician at John Peter Smith Hospital in Fort Worth, and various other hospital records, including a progress report, a consultation report, nurses’ reports and a discharge summary. Ziegler objected to the admission of all of these records on the grounds that they contained hearsay and that no proper predicate was laid.

We shall discuss and dispose of points of error seven through fifteen together because they involve similar type records and similar complaints. To discuss each one would unnecessarily prolong this opinion.

Although the Child Welfare Unit contends that Ziegler’s objections were inadequate and too broad to properly preserve any error in the admission of these records, we overrule that contention because in most cases counsel for Ziegler read into the record the objectionable part of the exhibits and stated that those portions did constitute hearsay. Regardless of whether the objection was sufficient and specific enough, we will consider the errors complained of in the admission of these records.

We have examined all of the records complained of in points of error seven through fifteen and conclude that all of them were admissible under the TEX.R. EVID. 803(4), (6) and 805, which were effective September 1, 1983, and which are therefore applicable to this case.

Rule 803 is styled: Hearsay Exception; Availability of Declarant Immaterial. The rule then provides the following are not excluded by the hearsay rule, even though the declarant is available as a witness: 803 (4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pains, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. (Emphasis ours.) Rule 803 (6) provides: Records of regularly conducted activity, or memorandum, report, record, or data compilation in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. “Business” as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.

TEX.R.EVID. 805 provides: Hearsay Within Hearsay. Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

Without question some of the statements contained in these hospital records would not have been admissible under the common law or under former art. 3737 e, TEX. REY.CIV.STAT.ANN. (Vernon Supp.1984). However, the advent of the Texas Rules of Evidence affected a change in a number of the former rules of evidence. In particular, it changed and in many ways made less restrictive the hearsay rule and the exceptions thereto. This is especially true of what used to be known as the business records statutes.

After a careful review of these exhibits complained of in Ziegler’s points of error seven through fifteen, we have concluded that all of them, and the information and material therein, are admissible under the above-quoted rules of evidence. For the most part, these records relate to the medical personnel’s prognosis, diagnosis, progress reports, and causation and source of Kelly McKinney’s burn and bruise injuries.

Moreover, even if there was any error in the admission of these records, we hold it was harmless error for the reason that all or at least most of the important aspects of this information was properly admitted through testimony of witnesses, including medical doctors. Points of error seven through fifteen are overruled.

For the reasons stated, we affirm the judgment of the trial court.


source: Caselaw Access Project

author: HILL, Justice.

license: Public Domain

text:
    Bruce Edwin CALLINS, Appellant, v. The STATE of Texas, State.
    Nos. 2-82-136-CR, 2-82-137-CR.
    Court of Appeals of Texas, Fort Worth.
    Nov. 29, 1984.
    Lee Ann Dauphinot, Danny D. Burns, Fort Worth, for appellant.
    Tim Curry, Criminal Dist. Atty., and David H. Montague, Asst. Dist. Atty., Fort Worth, for appellee.
    Before JORDAN, JOE SPURLOCK, II and HILL, JJ.
   OPINION

HILL, Justice.

Bruce Edwin Callins was convicted under one indictment, in one trial, of one count of capital murder and two counts of aggravated robbery, all arising from an incident at Norma’s Lounge on June 27, 1980. The death penalty was assessed for the capital murder. He has appealed his conviction of capital murder to the Court of Criminal Appeals, and he has appealed his convictions of aggravated robbery to this court.

We dismiss the appeal, because we find that this court does not have jurisdiction since this is a case in which the death penalty was assessed. TEX.CODE CRIM. PROC.ANN. art. 4.04 (Vernon Supp.1984) provides that the appeal of all cases in which the death penalty has been assessed shall be to the Court of Criminal Appeals. Mr. Callins was convicted of three offenses in one case. One of the principal grounds of error on appeal is that there should have been more than one case. Since Callins was convicted in only one case, and since the death penalty was assessed in that case, the jurisdiction of the appeal of that case lies only with the Court of Criminal Appeals. We find no authority in the Code of Criminal Procedure for the bifurcated appeal which has been taken in this case. Since many of the issues which arise in the non-capital aspects of a capital case are the same as those which arise in the capital portion of the case, such a procedure would result in a great amount of duplication of time and effort on the part of the parties and of the court.

We dismiss this appeal on our own motion for lack of jurisdiction.


text:
    A.V. MITCHELL, Jr., and AVM Investments, Inc., Appellants, v. TEXAS COMMERCE BANK-IRVING, Appellee.
    No. 2-84-066-CV.
    Court of Appeals of Texas, Fort Worth.
    Nov. 29, 1984.
    Randy Roberts, Dallas, for appellants.

      Liddell, Sapp, Zivley, Brown & LaBoon and Vera R. Bangs, Dallas, for appellee.
    Before ASHWORTH, BURDOCK and HILL, JJ.
   OPINION

HILL, Justice.

A.V. Mitchell, Jr., and-AVM Investments, Inc., appeal from a summary judgment in favor of Texas Commerce Bank-Irving granting the bank a deficiency judgment on two notes which had been secured by real property. The summary judgment also awarded the bank a take-nothing judgment as to appellants’ counterclaim for wrongful foreclosure. Among other points of error, appellants urge that the trial court erred in granting the summary judgment in behalf of the bank because there was a fact issue as to the validity of the trustee’s sale in connection with the foreclosure, (1) due to the failure of the bank to give proper notice of the foreclosure sale by mailing the notice to the appellants at the most recent address in their files, and (2) due to the fact that after the sale had been completed and the bidders had disbursed, the sale had been reconvened without further notice when the buyer could not come up with the cash.

We reverse and remand for trial, because we agree that the bank failed to establish as a matter of law that there is no genuine issue of fact as to the validity of the trustee’s sale.

By points of error numbers one, two, six, and seven, Mitchell and AVM complain that the trial court erred in granting summary judgment for the bank because there are fact issues as to the validity of the trustee’s sale, due to the failure of the bank to comply with art. 3810 of the Texas Revised Civil Statutes by mailing notice to the debt- or of the foreclosure sale at the most recent address in its files, and due to the trustee reconvening the sale without notice after the bidders had disbursed, following the sale of the property to a buyer who subsequently failed to come up with the cash.

The summary judgment evidence reflects that the bank sent notice of the foreclosure sale to the appellants at 5944 Luther Lane, No. 301, Dallas, Texas 75225, although at that time the bank had a more recent address, 5016 Thunder Road, Dallas, Texas 75234, in its records.

Former art. 3810, now TEX.PROP.CODE ANN. sec. 51.002 (Vernon 1983), provides that the holder of the debt must, at least 21 days preceding the date of sale, give a certified mail notice of the sale to each debtor by depositing the notice addressed to the debtor at the most recent address of the debtor as shown by the records of the holder of the debt. It has been held that the failure to comply with this provision invalidates the trustee’s sale. Lido Intern., Inc. v. Lambeth, 611 S.W.2d 622 (Tex.1981).

The bank sent its notice of the sale to the appellants to the wrong address on June 15, 1981. Appellants received the notice several days before July 7, 1981, the date of the sale, and were present at the sale. The bank takes the position that since the appellants received actual notice of the sale and were present at the sale, that they suffered no harm as a result of the insufficient notice which the bank gave them. We do not agree with the bank’s position. The purpose of the notice statute is to provide a minimum level of protection for the debtor. Hausmann v. Texas Sav. & Loan Ass’n, 585 S.W.2d 796, 799 (Tex.Civ.App.—El Paso 1979, writ ref’d n.r.e.). When the notice is not sent to the proper address, the usual mail delays associated with incorrectly-addressed mail cause the debtor to receive less time to prepare for the sale than he is entitled to receive. If the bank were correct in its theory, it would not matter how little time remained before the sale after the debtor received the incorrectly-mailed notice, so long as he was actually present at the sale. Such an interpretation would result in the defeat of the purpose of the 21-day notice provision.

The bank relies primarily on two cases in support of its position. The first is the case of Ogden v. Gibraltar Sav. Ass’n, 620 S.W.2d 926 (Tex.Civ.App.—Corpus Christi 1981), rev’d on other grounds, 640 S.W.2d 232 (Tex.1982). In that case the notice was addressed to the debtor with one number too many in the post office box number, as well as an incorrect street address. The letter with the wrong post office box number was placed in the correct post office box, and a notice of the arrival of the other letter was also placed in the correct post office box. No delay in the depositing of notice of arrival of certified mail in the correct post office box was caused by the incorrect addresses.

The bank also relies on the case of Hausmann v. Texas Sav. & Loan Ass’n, supra. In this case the notice was sent to a residence address where the debtors actually lived, even though the creditor had a post office box as a more recent address in its files. The debtor said that they did not have a mailbox at the residence and that such letters were usually placed by the post office in the post office box that the creditor had in its files as the most recent address.

In both of these cases any error in the address on the letter did not cause any delay in the delivery of the notice to the debtor at the correct address. Since neither case involved a notice sent to an incorrect address, causing a significant delay in the receipt of the notice, neither case is comparable to the case at bar.

It is undisputed that on the day of the sale, the property was first sold to one Stuart Koss for $128,250.00, and that after his bid had been accepted, he was given time to obtain the cash from his bank. Later in the day, when Mr. Koss did not return with the cash, the sale was reconvened and the property sold to the bank for $105,000.00. Others present at the earlier sale had dispersed. There was affidavit evidence that some of these persons were bidders. The resale of the property to the bank, after the bidders had dispersed, without further advertisement of the sale, was invalid. Clearman v. Graham, 4 S.W.2d 581 (Tex.Civ.App.—Austin 1928, writ dism’d).

The bank relies on the case of Kirkman v. Amarillo Savings Ass’n of Amarillo, 483 S.W.2d 302 (Tex.Civ.App.—Amarillo 1972, writ ref d n.r.e.). In Kirkman, the court upheld the validity of the sale to the creditor, the second highest bidder, instead of to Kirkman, who never did come up with the cash, even though he had been given time to do so. The evidence showed that there were no other bidders present when the sale was recessed other than Kirkman and the creditor. Also, the issue presented here was not raised or discussed in that case. The bank is correct that it was proper for the trustee to allow the prospective purchaser time to obtain cash for the purchase; the error was in reconvening the sale without notice to those who had been present when it was announced that the property had been sold.

We sustain points of error numbers one, two, six and seven because the summary judgment evidence failed to establish that there was no fact issue as to the validity of the trustee’s sale.

In view of our holding, it is unnecessary to review the remaining points of error. We reverse and remand for trial. Costs are charged to the appellee.


author: ASHWORTH, Justice.

text:
    Jesse LEFFALL, Appellant, v. The STATE of Texas, State.
    No. 2-84-082-CR.
    Court of Appeals of Texas, Fort Worth.
    Nov. 29, 1984.

      R.K. Weaver, Dallas, for appellant.
    Henry M. Wade, Criminal Dist. Atty., and Constance M. Maher, Asst. Dist. Atty., Dallas, for appellee.
    Before ASHWORTH, BURDOCK and HILL, JJ.
   OPINION

ASHWORTH, Justice.

Jesse Leffall was convicted by a jury of the offense of possession of a controlled substance, heroin. After finding he had committed two prior felonies, the jury sentenced Leffall to confinement for life.

Judgment affirmed.

Appellant presents one ground of error contending the trial court erred in admitting evidence seized contrary to the United States Constitution and the Texas Constitution.

Appellant was arrested by two Dallas police officers who found a cellophane packet containing fifteen capsules of heroin in his possession. Appellant filed a pretrial motion to suppress this evidence.

The court conducted a hearing prior to the trial on appellant’s motion to suppress. Anthony Gipson, one of the police officers involved in the arrest, was the only witness at the hearing on the motion. Gipson testified that he and Henry R. Acord, the other police officer, were on routine patrol on the night of August 19, 1983. He and Acord were dressed in their police uniforms and were driving a marked police car.

The officers decided to conduct a foot patrol through an apartment complex because the complex was well-known to police officers as a location where illegal narcotics sales were made. They approached the area with their headlights off and parked in an alley adjacent to the complex parking lot. In the parking lot, they observed a Buick automobile parked in such a manner as to block the exit of other cars which were properly parked. Gipson stated it was supposedly parked in the fire lane but he was not sure of that. The parking lights of the Buick were on, and a man was seated on the passenger side of the front seat. The window was down and the man’s right arm was hanging outside the front door; his left arm was lying along the top of the front seat, and he was slumped over against the passenger side door.

Gipson decided to investigate to see if the man was unconscious, drunk, or dead. When he was about ten to fifteen feet away from the car, Gipson and Acord both shined their flashlights on the occupant, who is the appellant in this case. The appellant seemed startled and immediately started making a movement with his left arm as if he was attempting to put something away or obtain something. Gipson hurried to the car and shined his flashlight inside the car on the appellant. Gipson saw appellant trying to deposit under the arm rest a small cellophane wrapper containing some capsule-looking things. Gip-son could see that the capsules contained a brown powder which he suspected to be heroin. Appellant was taken into custody and the cellophane wrapper was retrieved. It was later determined that the brown powder in the capsules was heroin.

The motion to suppress the evidence was denied. Gipson’s testimony at the pretrial hearing was essentially restated during the trial on the merits. Acord’s testimony generally agreed with that of Gipson. Appellant contends the evidence seized was obtained in violation of the constitutional prohibitions against unlawful searches and seizures. Specifically, he alleges that the officers entered onto private property hoping to discover improper activities, and there was no justification for such entry without a warrant.

TEX.PENAL CODE ANN. sec. 1.07(a)(29) (Vernon 1974) provides, that a “public place” means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets and highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops. It is true, as appellant points out, that there was no testimony as to the description of the parking lot from which it could be determined that it had any public characteristics. However, the lot was described as that for an apartment complex known to police officers as a location for narcotics transactions. There is no question that the area was a parking lot for an apartment complex. Under the words of the statute, it was a public place, and we hold the officers were lawfully on the lot.

In Merideth v. State, 603 S.W.2d 872 (Tex.Crim.App.1980), a police officer received a call to investigate the appearance of several people in the parking lot of an apartment complex. The police had been receiving burglary calls in the area on a regular basis. The officer observed two people in a pickup truck in the parking lot. The officer knocked on the window of the pickup, the door was opened, and the officer smelled the odor of marihuana and observed a handrolled cigarette butt in the ashtray. A full handrolled cigarette was discovered in the bottom of the ashtray; the occupants were placed under arrest and a plastic baggie containing marihuana was found in the truck. The defendant was found guilty of possession of marihuana, and he contended there was an investigative stop and the marihuana was seized pursuant to an unlawful search and seizure. The court held there was no investigative stop; there was no detention until the marihuana was discovered; the officer was in a location where he had a legal right to be and observed the cigarette butt in plain view. There was no search and seizure; the marihuana cigarettes in the ashtray were lawfully obtained; and the baggie of marihuana was discovered because of an inventory prior to impoundment. The evidence there was held to be properly admitted.

While there are some differences in the facts of Merideth and the instant case, the similarities are sufficient for our holding that the police officers were lawfully in the parking lot, a public place; they had good cause to investigate the improperly parked car with an occupant slumped over the seat, the evidence seized was in plain view and was not the fruit of an illegal search and seizure.

Judgment affirmed.


author: CLARK, Presiding Judge.

text:
    Sandra HEMME, Appellant, v. STATE of Missouri, Respondent.
    No. WD 34937.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1984.
    Larry D. Harman, Krebbs, Holdsworth & Harman, Liberty, for appellant.
    John Ashcroft, Atty. Gen., Frank A. Rubin, Asst. Atty. Gen., Jefferson City, for respondent.
    Before CLARK, P.J., and PRITCHARD and LOWENSTEIN, JJ.
   CLARK, Presiding Judge.

This is an appeal from the order of the trial court denying a motion under Rule 27.26 to set aside movant’s conviction and sentence on her plea of guilty to the offense of capital murder. The sentence imposed on the plea was life imprisonment without eligibility for parole for fifty years. The issue is the asserted ineffectiveness of defense counsel in failing to raise issues of movant’s mental state at the time of the offense and her competence to enter the plea.

Appellant was charged with the murder of one Patricia Jeschke on November 12, 1980 by stabbing and strangling the victim. No witnesses to the crime were reported and the record of the plea hearing includes no description of the evidence the state would have offered at trial, save only the statements obtained from movant herself. The file suggests that movant was first interrogated about the crime on December 5, 1980 and on December 10, 1980, she confessed to having perpetrated the homicide.

Certain facts relative to movant’s medical history and circumstances were not in dispute. Some of the information entered the record for the first time at the hearing on the 27.26 motion while other details were available at the time the plea of guilty was accepted. The same judge who imposed sentence did not conduct the 27.26 motion hearing. Counsel who represented movant on the criminal charge testified at the motion hearing, but at that time, mov-ant had retained another attorney to present the motion. The gist of the motion claim was that criminal trial counsel had failed to make minimal preparation of the defense and had, instead, actively promoted entry of a guilty plea notwithstanding mov-ant’s lengthy history of mental illness induced by drug abuse.

At the time the guilty plea was entered, appellant was 21 years of age. She had first received psychiatric treatment in 1972 at age 13 when she attempted suicide. In the eight years which followed, appellant was successively admitted to a number of treatment institutions in Kansas City, St. Louis, Jefferson City, Columbia and in the State of Maryland with the consequence that in the aggregate, she was hospitalized six of the eight years preceding the crime charged in this ease. She attempted suicide three or four more times and had a history of seven admissions to the St. Joseph State Hospital where she was a patient at the time of her arrest. According to the state’s reconstruction of events, appellant left the hospital the day of the killing and returned there that night.

The record here does not include all material from the criminal file. It does appear that appellant was first charged with the subject offense on or about December 5,1980 after which the grand jury returned an indictment on December 23. Private counsel was retained for appellant by her father, apparently soon after her arrest. There is no record of when the attorney undertook to represent appellant because the attorney filed no entry of appearance and no motions or pleadings of any kind in the ease. He was selected, according to appellant’s father, because he had known the family for about ten years and had represented appellant as a juvenile when she was sent to a Kansas City hospital for psychiatric treatment and therapy.

Appellant entered her guilty plea April 10, 1981. In the first segment of the hearing, appellant professed not to have a clear recollection of the killing or any of the events that day. As she described it, the occurrence was not her act but as though she were a spectator watching from the outside. The responses did not satisfy the court and the guilty plea was refused. There is no indication in the record of the plea hearing that the trial court was given any information about appellant’s history of institutional treatment or that concern about appellant’s competence was at the root of the initial refusal to accept the plea. As the court stated, the testimony offered by appellant was simply not sufficient to satisfy all the elements of the offense of capital murder and the state made no offer to show what its proof would be apart from appellant’s confession.

At this point, the prosecutor interceded to obtain a recess, evidently to assist appellant in clearing her memory. During the recess, according to appellant’s testimony at the motion hearing, the prosecutor and appellant’s attorney jointly instructed her as to how she should respond to the court’s questions to assure acceptance of the plea. The hearing resumed after fifteen minutes, appellant described in some detail to the court the killing of Patricia Jeschke accomplished by appellant alone and the plea was accepted. Defense counsel asked no questions of appellant and made no statement on her behalf. The court immediately sentenced appellant to life imprisonment without parole for fifty years. She was transported to the Department of Corrections five days later.

At the motion hearing, appellant’s attorney at the criminal trial testified that he had prepared the case by reviewing the prosecuting attorney’s file, by talking with appellant and by examining appellant’s file at the St. Joseph State Hospital. He also made some investigation as to other persons appellant described as involved in the offense and gave that information to the St. Joseph Police Department. The attorney agreed he was at the time acquainted with appellant’s history of hospitalization during the previous eight years and also with her record as a patient at the time the offense was, committed. The attorney said appellant’s history and condition raised a doubt in his mind as to appellant’s competency to proceed and doubt as to her mental capacity at the time the crime was committed. Despite this doubt, the attorney filed no motion for a mental examination, gave no information to the court as to appellant’s history of hospitalization and treatment and he gave no notice of intention to rely on the defense of mental disease or defect. As he described it, he “was really not impressed with this defense.”

The point raised on this appeal which is dispositive of the case is the claim that appellant’s guilty plea was involuntary because her trial counsel, although entertaining doubt as to her competency to proceed, sought no adjudication on the issue and did not communicate his doubt to the court.

Where the accused has entered a plea of guilty, adequacy of representation is material only if ineffective representation has affected the voluntariness and understanding of the plea. Hall v. State, 496 S.W.2d 300 (Mo.App.1973). The conviction of an accused while legally incompetent is a denial of due process. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). A person is not competent to proceed if, because of a mental disease or defect, he lacks capacity to understand the proceedings against him or to assist in his own defense. Bryant v. State, 563 S.W.2d 37 (Mo. banc 1978). If counsel for the accused comes to an honest belief that his client lacks present capacity for rational understanding and cooperation, he is under a duty to obtain adjudication of the issue because the ongoing criminal conviction process relies on the absence of doubt by defense counsel as to the client’s competency. Miller v. State, 498 S.W.2d 79, 86 (Mo.App.1973).

In review of a trial court order denying relief to a movant under Rule 27.-26, the appellate court is limited to a determination of whether the judgment of the trial court is clearly erroneous. Rule 27.-26(j). The trial court’s findings are clearly erroneous only when the appellate court is left with a firm conviction that a mistake has been committed. Thompson v. State, 651 S.W.2d 657 (Mo.App.1983).

We are concerned in ruling this appeal only with the issue stated, that is, whether appellant was competent to proceed between the date of the charge and the date of her guilty plea and whether counsel was ineffective in failing to initiate adjudication of the question. The trial court in its findings declared that appellant was competent to enter her plea and further construed the testimony of appellant’s trial counsel not to be indicative of doubt that appellant was competent when the plea was entered. These findings are clearly erroneous.

All of the facts recited earlier in this opinion including appellant’s long history of treatment for mental problems, her repeated attempts at suicide, her then current status as a patient receiving treatment at St. Joseph State Hospital on the date the offense was committed and on the date of her arrest, and her confused initial plea testimony, psychologically described as de-realization, were uncontested and, if fully known by the trial court, should have and no doubt would have prompted an inquiry to ascertain appellant’s actual mental condition before acceptance of the plea. Added to this is the unequivocal testimony by appellant’s trial counsel that he did have doubt, not only as to appellant’s mental condition when the crime occurred, but doubt also as to her competency to proceed. There is no latitude on this evidence for any other construction or interpretation.

Trial counsel was remiss in failing to request a mental examination of appellant as the initial step of trial preparation and in failing to make known to the trial court his doubt about appellant’s competence and the medical and personal history on which the doubt was based. In these circumstances, appellant was ineffectively served by counsel who stood mute and the court erred in not so finding. Appellant was not afforded her due process right to effective counsel and her conviction is therefore fatally flawed.

The judgment of conviction is reversed and the cause is remanded with direction that appellant be allowed to withdraw her plea of guilty.


author: SIMON, Judge.

text:
    BRINER ELECTRIC COMPANY, Plaintiff-Respondent, v. SACHS ELECTRIC COMPANY, Defendant-Appellant.
    No. 45704.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 25, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 30, 1984.
    Application to Transfer Denied Dec. 18, 1984.

      Robert S. Allen, Michael A. Vitale, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for defendant-appellant.
    Lashly, Caruthers, Baer & Hamel, Rex-ford H. Caruthers, Barry & Bresnahan, James T. Barry, Jr., Linda M. Dougherty, St. Louis, for plaintiff-respondent.
   SIMON, Judge.

Sachs Electric Company (Sachs) appeals from a judgment entered in favor of Briner Electric Company (Briner) on a jury verdict in the Circuit Court of the County of St. Louis. The claim is founded on tortious interference with a business expectancy and the jury awarded Briner actual damages of $213,000 and punitive damages of $405,000.

On appeal, Sachs contends the trial court erred in (1) failing to grant Sachs’ motions for a directed verdict and judgment notwithstanding the verdict for the reason that Briner failed to make a submissible case in that it did not prove the necessary elements for tortious interference with a business expectancy; (2) excluding relevant and material testimony and exhibits; (3) submitting a verdict director not requiring the jury to find that Sachs had knowledge of Briner’s expectancy; (4) failing to grant Sachs’ motions for a directed verdict and judgment notwithstanding the verdict in that the evidence was insufficient to support actual damages; (5) submitting instruction for punitive damages for the reason that, as a matter of law, Briner was not entitled to punitive damages in that Briner failed to prove actual damages, actual malice and a knowing commission of a wrongful act; (6) instructing the jury as to punitive damages before instructing as to actual damages in that this order of instructions gave undue prominence to the punitive damage issue; and (7) failing to grant Sachs’ motion for a new trial or, in the alternative, a remittitur for the reason that the awards of actual and punitive damages are arbitrary, excessive and unsupported by the evidence. We reverse.

Reviewing the submissibility of Briner’s claim, we view the evidence in a light most favorable to Briner, giving it the benefit of all reasonable inferences deducible from the evidence. Francisco v. Kansas City Star Company, 629 S.W.2d 524, 530 (Mo.App.1981). Further, Briner must produce substantial evidence supporting each element of its cause of action, all inferences of essential facts must be based on substantial evidence and liability cannot be based upon speculation, conjecture or guesswork. Tri-Continental Leasing Co. v. Neidhardt, 540 S.W.2d 210, 211 (Mo.App.1976). With these principles in mind, we set out the facts necessary to a determination of the submissibility of Briner’s claim.

During the latter part of 1976 and early part of 1977, Barnes Hospital decided to construct its New West Pavilion and selected four general contractors from whom it would accept bids for the project. The general contractors were limited to the subcontractors chosen by Barnes. Sachs and Briner were two of the six electrical subcontractors selected by Barnes.

On May 16, 1977, Wischmeyer, the architectural firm in charge of the project, issued to the general contractors invitations to submit bids for the construction to Mr. Frank, the president of Barnes. The bidding deadline for the general contractors was originally 2:00 p.m. on June 28, 1977, but was changed to 2:00 p.m. on July 8, 1977. Included with the invitations was a specification containing a detailed procedure concerning the submission of bids. Applicable to prime sub-contractors, such as Briner and Sachs, was the requirement that they submit the bid to the general contractors and a copy of the bid to Barnes by 10:00 a.m. on July 7,1977. No modifications, withdrawals or cancellations were allowed after this time. Further, combination bids were prohibited by any prime sub-contractor who did not normally engage in the categories of work included in a combination bid. Any modification in this procedure, to be effective, was to be issued by the architect in writing to all concerned parties no later than four days before bids were due.

Proceeding according to the specification, Briner submitted an electrical bid of $5,242,250. Sachs’ electrical bid submitted to McCarthy on July 7, 1977, was $5,480,-000. Briner’s electrical bid was the lowest submitted by the electrical prime sub-contractors. McCarthy Bros., the general contractor ultimately awarded the job by Barnes, testified that but for the combination bid submitted subsequently by Sachs, Briner would have been awarded the electrical sub-contracting work.

On July 6, Mr. Krause, an employee of Sachs, called Frank to obtain permission to submit a combined bid. Krause contacted Frank despite the fact that Krause knew the specifications instructed that all questions should be directed to the architects. Krause was also aware that Barnes had assigned internal responsibility for the project to another employee. During the call Krause represented to Frank that substantial savings could be achieved by Barnes if it allowed the bid. At that time, however, no combination bid actually had been prepared, nor was Krause sure of exactly how much, if anything, could be saved. Frank, whose son worked for Sachs at the time, gave his tentative approval for the bid. After checking with the architect, Frank called Sachs and gave his complete assent to the combined bid.

Late in the afternoon of July 7, 1977, Krause called McCarthy to inform them Sachs intended to submit another bid, a combination bid. Krause informed McCarthy that this had been cleared through Barnes. That night, Sachs met with Nie-haus Interiors, Inc. and Environmental Interiors, Inc., drywall and ceiling work subcontractors, to discuss the possibility of submitting a combination bid. The three firms eventually agreed on a combination bid which was submitted to McCarthy on the morning of July 8, 1977. The amount of the bid was lower than the total of the firms’ three separate bids. This was possible due to a belief that costs could be reduced by combining. A comparison of the separate bids and the combination bid is as follows:

Sachs $5,339,636 $5,153,542 $186,093
Niehaus $2,298,485 $2,133,958 $164,627
Environmental $ 399,500 $ 374,950 $ 24,550
$8,037,620 $7,662,450 $375,170

The reason given by Sachs for submitting a combination bid was that it believed that Guarantee Electric, another electrical sub-contractor involved in the bidding, intended to submit a combination bid. Sachs felt it had been denied the contract on another project because of a combination bid filed by Guarantee. It appears that Sachs did not meet the requirements set forth in the specifications for combination bids in that it was not normally engaged in drywall and ceiling work. On the other hand, Guarantee apparently was normally engaged in such work.

Sachs learned that Briner had been the low electrical bid in the early afternoon of July 8, 1977 after a meeting it had with Tarlton Construction, one of the general contractors. The meeting concerned submission of Sachs’ combination bid to Tarl-ton. This appears to be the only instance evidencing Sachs’ knowledge that Briner had submitted a bid and was the low electrical bidder.

McCarthy received Sachs’ bid on July 8, 1977. On that day, McCarthy assembled its bid to Barnes based on the sub-contracting bids it had received. In arriving at its bid to Barnes, McCarthy compared the lowest bids of electrical, drywall, and ceiling work with Sachs’ total combined bid. Since Sachs’ combined bid for the three types of work was less than the total of the lowest three separate bids, which included Bri-ner’s electrical bid, Sachs’ combined bid was chosen. Subsequently, McCarthy was selected by Barnes as the general contractor and Sachs was thereby awarded the electrical work.

The verdict director on which the cause was submitted is a modification of MAI 23.11 and reads as follows:

Your verdict must be for plaintiff if you believe:
First, a business expectancy existed between plaintiff and McCarthy Bros. Construction Company which was terminated by McCarthy Bros. Construction Company, and
Second, defendant caused McCarthy Bros. Construction Company to terminate the business expectancy of plaintiff, and
Third, defendant did so intentionally and without justification or excuse, and
Fourth, plaintiff was thereby damaged.

The jury found for Briner and awarded actual damages of $213,000 and punitive damages of $405,000. At trial, Briner claimed, as actual damages, its lost profits of $618,000. This amount is the difference between the bid amount ($5,242,250) and the costs assigned to the work by Briner ($4,624,250). Briner supported this contended amount by introducing its financial statements into evidence and testimony of its certified public accountant.

The elements required for tortious interference with a valid business expectancy are: (1) the existence of a valid business expectancy; (2) knowledge of the expectancy by Sachs; (3) intentional interference by Sachs which induces breach of the expectancy; (4) absence of justification; and (5) damages. Francisco v. Kansas City Star Company, 629 S.W.2d 524, 530 (Mo.App.1981).

We find that Briner failed to prove the fourth element and therefore failed to present a submissible case. Sachs’ conduct was justified competition. Since our resolution of this point is dispositive, we do not decide whether any of the other elements were proved.

The question of competition justifying an intentional interference with another’s business relations is dealt with in Restatement (Second) of Torts § 768 (1979). That section states:

Competition as Proper or Improper Interference (1) One who intentionally causes a third person not to enter into a prospective contractual relation with another who is his competitor or not to continue an existing contract terminable at will does not interfere improperly with the other’s relation if
(a) the relation concerns a matter involved in the competition between the actor and the other and
(b) the actor does not employ wrongful means and
(c) his action does not create or continue an unlawful restraint of trade and
(d) his purpose is at least in part to advance his interest in competing with the other.
(2) The fact that one is a competitor of another for the business of a third person does not prevent his causing a breach of an existing contract with the other from being an improper interference if the contract is not terminable at will.

Comment e explains the “wrongful means” used in clause (b) which would be prohibited. The comment states that “physical violence, fraud, civil suits and criminal prosecutions are all wrongful in the situation covered by this Section.” See also Comment b § 766 B Restatement (Second) of Torts (1979).

Although no Missouri cases have addressed the extent to which competition justifies an interference with another’s business relations, we believe that § 768 accurately expresses Missouri law as to the justification element of the tort in an action between competitors. That section strikes a balance between unrestrained competition and protection of justified business expectations. In essence the rule states that competitive conduct which is neither illegal nor independently actionable does not become actionable because it interferes with another’s prospective contractual relations.

Our conclusion is buttressed by a review of Missouri cases dealing generally with the tort of intentional interference with business relations. Fischer, Spuhl, Herzwurm & Associates, Inc. v. Forrest T Jones & Co., 586 S.W.2d 310 (Mo. banc 1979) is perhaps the closest to the present situation, as it too was an action between competitors. In Fischer, the trial court dismissed a petition that alleged conduct violating state antitrust laws and a tortious interference with business relation. The Supreme Court, sitting en banc, reversed on both counts. The court, after determining that the pleading alleged conduct violating antitrust laws, also determined that the petition pleaded a claim for tortious interference with business relations. The conduct involved “illegal ‘tying’ agreements ... and other anticompetitive agreements .... ” Id. at 315 (emphasis added). Although the court did not mention § 768, we note that the conduct alleged would be actionable under that section. Indeed, the United States Court of Appeals for the Eighth Circuit read Fischer as being consistent with the Restatement view. Superturf, Inc. v. Monsanto Co., 660 F.2d 1275, 1286 (8th Cir.1981).

In addition, our conclusion is consistent with Downey v. United Weatherproofing, Inc., 363 Mo. 852, 253 S.W.2d 976 (1953), the seminal Missouri case on this type of action. Downey involved allegations of business slander which caused breaches of existing contracts and interfered with plaintiff’s future business relations. In holding that an action could be maintained for interference with future business relations, the court stated: “An existing contract may be a basis for greater protection, but some protection is appropriate against unjustified interference with reasonable expectancies of commercial relations.... [T]he differentiation between them relates to ... the kind and amount of interference that is justifiable in view of the difference in the facts.” Id. 253 S.W.2d at 980.

In addressing the question of competition as justification, the court relied on the first Restatement of Torts, § 768 (1939). That section distinguished between prospective and existing contracts, as does Restatement (Second) of Torts § 768. Both sections allow a party to interfere with the formation of a competitor’s contracts, so long as four conditions are met. The conditions, set out above, are essentially the same in both Restatements; the difference in the two sections being that the first Restatement speaks in terms of a privilege, usually an affirmative defense, while the second Restatement addresses the impropriety of the interference itself, usually a part of plaintiff’s case. Inasmuch as the absence of justification, i.e., the impropriety of the interference, is an element of the tort under Missouri law, the Missouri approach is not inconsistent with the second Restatement.

Our conclusion is supported further by a perusal of other states which have considered § 768. Particularly instructive are two Colorado cases addressing the question: Memorial Gardens, Inc. v. Olympian Sales & Management Consultants, Inc., 661 P.2d 296 (Colo.App.1982) (cert. granted to Colorado Supreme Court, March 7, 1983) and Dolton v. Capitol Federal Savings & Loan Ass’n, 642 P.2d 21 (Colo.App.1981). In Memorial Gardens, the parties were competitors in the field of pre-need funeral plans. The defendant induced some of plaintiff’s customers to terminate their terminable at-will contracts with plaintiff. These customers then bought plans from defendant. Plaintiff sued alleging tortious interference with its contractual relations. It was stipulated that the contracts between defendant and plaintiff’s customers involved the area of competition between the parties, and that defendant made no “false, fraudulent, derogatory, or untrue statements or representations about plaintiffs.” The court affirmed a judgment for defendant on the basis that the defendant’s conduct was justified competition. The court noted that an action would lie if defendant used “wrongful means” to procure a breach of a contract, but held that the record supported the trial court’s findings of justifiable competition.

In Dolton, the plaintiff was a real estate developer who was in competition with a subsidiary of the defendant bank. After plaintiff had received preliminary acceptance of his offer to purchase some property he approached the bank for financing. The subsidiary then made another offer which was accepted. Plaintiff sued the bank, the subsidiary, and the bank officer to whom he had spoken about the loan. Summary judgment was entered for all defendants. The Court of Appeals affirmed the judgment for the subsidiary on a tortious interference claim, holding that its bid for the property, before an enforceable contract had been entered into by the plaintiff, was justified competition. Although there was a factual question whether the bank and the bank officer breached a fiduciary duty by misusing confidential information, the subsidiary was plaintiff’s competitor in real estate development and its actions were privileged as a matter of law. See also M & M Rental Tools, Inc. v. Milchem, Inc., 94 N.M. 449, 612 P.2d 241 (N.M.App.1980); Allied Security, Inc. v. Security Unlimited, Inc., 265 Pa.Super. 297, 401 A.2d 1219 (Pa.Super.1979).

Finally, we note that several Missouri cases have quoted and approved of various other Restatement sections dealing with other aspects of this tort. See, e.g. Friedman v. Edward L. Bakewell, Inc., 654 S.W.2d 367 (Mo.App.1983) (quoting Restatement (Second) of Torts § 769 (1979)), dealing with an interference by one who has a financial interest in a contract, as an accurate statement of the law); Francisco v. Kansas City Star, Co., 629 S.W.2d 524 (Mo.App.1981) (quoting with approval Restatement (Second) of Torts § 766 comments h and j (1979)), dealing with the element of intent); Stanfield v. National Electrical Contractors Ass’n, Inc., 588 S.W.2d 199 (Mo.App.1979) (citing with approval Restatement (Second) Torts § 766 comment g (1979), dealing with breach of contracts terminable at will.). In the interest of developing a comprehensive and consistent set of principles we adopt § 768 as a clear statement of the rule relating to the justification of competition.

We now apply these principles to the facts of this case. At the outset, it is clear that any interference was in the area of competition between Sachs and Briner. Further, it is also clear that Sachs’ acts were an attempt to further its own business interest, i.e., to get the contract for itself. Thus, there is no question that two of the four conditions of § 768 are met. In addition the record fails to support any finding of an unlawful restraint of trade. At the close of Briner’s evidence, motions for directed verdict of Environmental In-tenions Inc., Neihaus Intenions, Inc. and Barnes Hospital were sustained. They are original named defendants with Sachs. Briner does not contest the trial court’s action in the sustention of the motions. The question therefore is whether appellant utilized wrongful means in obtaining this contract.

The record fails to reveal any evidence of wrongful means. As noted earlier, wrongful means would generally entail either an illegal act or an act that is actionable in and of itself. The evidence, viewed in the light most favorable to the verdict, does not show any act rising to that level. It does show that Sachs blatantly disregarded the bidding documents and conducted private negotiations, unknown to any of its competitors. Indeed, these are the very acts to which Briner points as the wrongful means employed. However, these acts, while perhaps unsporting, do not rise to the level of wrongfulness. A contrary holding would effectively preclude the submission of nonconforming bids, and thereby bind Barnes to the terms of the specifications. Barnes specifically sought to avoid this by reserving the right to waive irregularities in the bids. We decline to accomplish indirectly what Barnes directly sought to avoid, believing instead that regulation of compliance with the bidding documents is best left to the parties themselves, who stand in the best position to control that compliance, and who will bear the burden of or reap the gain from their decisions.

Having concluded that plaintiff failed to prove that defendant’s acts were without justification, we reverse the judgment of the trial court. Our disposition of the case on this point renders unnecessary a discussion of the other points relied on.

Judgment reversed.

CRIST, P.J., and PUDLOWSKI, J., concur.

      . A combination bid is one for which a subcontractor would provide different types of work. For example, a combination bid might include electrical and mechanical work. Only a subcontractor who normally engaged in the different types of work could submit such a bid.

      . Sachs submitted a bid to Barnes for $5,339,-635. The reason for the discrepancy was to some way avoid exposure of the real bid to Sachs’ competitors. The logic behind this, contained in the transcript, is not clear.

      .The bids of the other electrical subcontractors were as follows:
      Aschinger Electric $7,341,593
      Mack Electric $6,698,000
      Kaiser Electric $6,600,000 (submitted late)
      Guarantee Electric $6,177,777 (submitted late)


author: CROW, Judge.

text:
    David J. ROPER, Appellant, v. Diane M. ARCHIBALD, Respondent.
    No. 13372.
    Missouri Court of Appeals, Southern District, Division Two.
    Oct. 23, 1984.
    Motion for Rehearing or Transfer Denied Nov. 15, 1984.

      Harold F. Glass, John G. Newberry, Schroff, Glass & Newberry, P.C., Springfield, for appellant.
    E. Mitchell Hough, David W. Hall, Jr., Bussell, Hough, O’Neal, Crouch & Hall, Springfield, for respondent.
   CROW, Judge.

On Tuesday, January 27, 1981, a moped operated by David J. Roper (“plaintiff”) collided with a Pontiac automobile operated by Diane M. Archibald (“defendant”) in the intersection of Campbell Avenue and West-view Street in Springfield, Missouri. Plaintiff, hospitalized six weeks as a result of the accident, sued defendant for personal injuries. Trial by jury produced a verdict for defendant, and judgment was correspondingly entered. Plaintiff appeals, insisting the trial court erred in instructing the jury on contributory negligence.

Campbell, a paved “major artery” running north and south, is 69 feet wide at the collision site. It has two lanes for northbound traffic and two for southbound traffic. Westview, also paved, runs east and west, passing through Campbell perpendicularly. East of Campbell, Westview is 41 feet wide; west of Campbell, Westview is 35 feet wide. The south curb lines of Westview on each side of Campbell are aligned, thus the north curb line of West-view west of Campbell is about 6 feet south of the north curb line of Westview east of Campbell.

Westview, east of Campbell, has three traffic lanes. The northern lane is for through westbound traffic, the middle is for westbound traffic turning left (south) on Campbell, and the southern is for eastbound traffic. West of Campbell, West-view also has three traffic lanes. The northern is for westbound traffic, the middle is for eastbound traffic turning left (north) on Campbell, and the southern is for through eastbound traffic.

Vehicular movement in the intersection is controlled by two overhead electric signals. For Westview traffic, the signals show — m turn — green, yellow and red. There is no “arrow” for left-turning Westview traffic, coming from either direction.

The speed limit on Campbell is 45 miles per hour; on Westview, 30 miles per hour.

The collision occurred about 4:00 to 4:10 p.m. The weather was clear, the pavement dry. Prior to impact, plaintiff, riding alone, was on Westview, east of Campbell, heading west. Defendant, likewise unaccompanied, was on Westview, west of Campbell, heading east and planning to turn left on Campbell.

Defendant testified that as she reached the intersection, she was driving in the middle lane, her left turn signal flashing. Two vehicles were preceding her in the same lane. The traffic light was red.

The light turned green and the two leading vehicles turned north. According to defendant, she looked east on Westview and saw no westbound traffic in the through lane within 500 feet of the intersection. She did see traffic on Westview, east of the intersection, headed west in the middle lane, waiting to turn south on Campbell. Defendant “came to a rolling stop, slowed down,” and determined that the vehicles facing her in the middle lane were indeed turning south. Seeing no westbound traffic in the through lane, defendant began turning north. She explained:

“Then, just as I was starting to turn, I looked to the right and just about a second before impact, I saw Mr. Roper’s hand towards the right passenger’s window of the car. It’s like the person would be sitting next to me. I realized I was coming on impact and put on the brakes.”

Plaintiff testified, without contradiction, that as he approached the intersection he was traveling 15 to 20 miles per hour along the “right-hand tire track” in the through westbound lane of Westview, 3 to 4 feet south of the north curb. When he was 2 to 4 car lengths from the intersection, he looked at the signal and saw it was green. He saw no other traffic in the through westbound lane of Westview, and saw no eastbound traffic occupying the middle lane of Westview in the intersection, waiting to turn left (north). He did see two or three westbound vehicles to his left in the middle lane of Westview. They “seemed to be stopped,” waiting to turn left (south). He saw no eastbound traffic crossing the intersection in the south lane of Westview that would have detained these left-turning vehicles. •

Plaintiff first saw the Pontiac when it was about 10 feet away, turning northeast in front of him, 6 to 8 feet into his lane. A second or two later, the front wheel and fender of the moped collided with the right front fender of the Pontiac.

Plaintiff’s claim was submitted to the jury by an instruction hypothesizing that defendant failed to yield the right-of-way.

The trial court, at the instance of defendant, instructed the jurors that their verdict had to be for defendant if they believed plaintiff either failed to keep a careful lookout or drove at an excessive speed, that plaintiff, in either or both respects, was negligent, and that such negligence directly caused or directly contributed to cause any damage he may have sustained.

Plaintiff maintains that neither assignment of contributory negligence should have been submitted.

In determining whether there was sufficient evidence to support the submissions of contributory negligence, we consider the evidence in the light most favorable to defendant, giving her the benefit of all favorable inferences reasonably to be drawn therefrom; we disregard plaintiffs evidence unless it tends to support the grounds of contributory negligence submitted in the instruction. Welch v. Hyatt, 578 S.W.2d 905, 912[1] (Mo. banc 1979); Jackson v. Skelly Oil Co., 413 S.W.2d 239, 242[2] (Mo. banc 1967).

As to excessive speed, the evidence most favorable to defendant was that the moped was going 20 miles per hour as it entered the intersection. Though that was 10 miles per hour below the speed limit for Westview, defendant reminds us that a motorist who drives at a speed which endangers persons and property under the existing conditions may be guilty of negligence even though his speed is within the lawful limit. Powell v. Watson, 526 S.W.2d 318, 326[9] (Mo.App.1975); Rakestraw v. Norris, 478 S.W.2d 409, 415[9] (Mo.App.1972).

Defendant emphasizes that the intersection was a busy one, that Campbell is heavily traveled, a major shopping center sits on the southwest corner, and a high school that dismisses classes about 3:15 to 3:30 p.m., is situated on Westview some distance east of the intersection. In addition, plaintiff had owned the moped only 8 or 9 days, had ridden it only 5 or 6 times totaling about 90 miles, had not driven it over 26 or 27 miles per hour, had not read the owner’s manual regarding braking distances, and was not “motorcycle qualified.”

Defendant also points out that plaintiff was wearing no helmet, that his clothing was light gray, and that the moped was metallic green with a black seat, the implication being that plaintiff was thereby less visible to other motorists than a moped rider would normally be.

Furthermore, says defendant, plaintiff was “tired,” as he had risen at 4:30 a.m., worked a full shift as a laundry foreman at a correctional facility, and run some errands after work.

According to defendant, these factors, in the aggregate, made a jury issue whether plaintiff’s speed was excessive under the circumstances.

Hill v. Boling, 523 S.W.2d 867 (Mo.App.1975), like the instant case, involved an intersection collision between a left-turning vehicle and one going straight through in the opposite direction. The accident occurred at night at a “commercial” intersection in St. Louis County, in clear weather on dry pavement. Both vehicles had the right-of-way against perpendicular traffic. The plaintiffs, turning left, saw no oncoming traffic. The defendant, approaching at 25 to 30 miles per hour (within the speed limit), saw plaintiffs turn into his path. He braked and swerved, but was unable to avoid the collision. The trial court’s refusal to submit excessive speed as an assignment of negligence against the defendant was upheld on appeal. The Court of Appeals, reviewing several cases where submission of excessive speed had been approved, found no circumstances justifying it in Hill. Defendant was traveling within the speed limit, and there was no evidence of drinking or fatigue or any operating defects in his automobile. Id. at 871.

Such is the situation here. Although defendant implies plaintiff was tired because of the early hour he arose, there is no evidence that this was out of the ordinary for plaintiff or that his senses or reflexes were impaired in any way. Weather and pavement conditions were favorable, and the accident occurred in daylight. There was no evidence of any operating defect in the moped.

Additionally, plaintiff had the green light, there were no westbound vehicles preceding him in the through lane, and his path would have been unobstructed had defendant not turned in front of him. Even acknowledging plaintiffs inexperience operating the moped, we fail to see how 20 miles per hour was, even arguably, an excessive speed in these circumstances.

In Carder v. Eaton, 629 S.W.2d 553 (Mo.App.1981), a northbound motorcycle going 35 miles per hour in a 45 mile per hour zone collided with an automobile that pulled into the road from a parking lot on the east, intending to turn south. The motorcyclist sued for personal injuries. The trial court submitted excessive speed as an assignment of contributory negligence against the motorcyclist. The Court of Appeals, citing Hill and other cases, reversed, finding no conditions regarding the motorcyclist, his vehicle, the traffic or the road from which the jury could find the motorcyclist’s speed was excessive. Pertinent to the case before us, Carder states:

“The only factor that made plaintiff’s speed too great was, as it turned out, that defendant’s car was driven into his path, and he was unable at the speed at which he was traveling to avoid colliding with it.” Id. at 555.

The opinion added that the motorcyclist need not have anticipated that the automobile would be driven into his path, and was not required to regulate his speed by reference to that possibility.

Were we to uphold the submission of excessive speed as an act of contributory negligence in this ease, we would, in effect, be requiring any motorist with the right-of-way in an intersection to drive at a speed at which he could stop if a vehicle facing him, pausing to turn left, pulled suddenly and unexpectedly into his way. Traffic could hardly move through an intersection under such constraint.

Defendant argues that the two vehicles that had turned north in front of plaintiff before defendant began her turn, and the westbound vehicles in the lane to plaintiff’s left, waiting to turn south, should have alerted plaintiff that there were other vehicles in the intersection. Even if that be true, we fail to see how it renders plaintiff’s speed excessive. It was obviously unnecessary for plaintiff to reduce his speed because of the two vehicles that turned north, as they had cleared the intersection at the time the collision occurred and were no factor in it. Vehicles to plaintiff’s left would have had to yield for through eastbound traffic, but would not have been detained by vehicles facing them, turning north. Defendant’s argument, though skillful and imaginative, is unpersuasive.

We hold that the evidence was insufficient to support the submission that plaintiff drove at an excessive speed.

However, even had it been a jury issue whether 20 miles per hour was an excessive speed for the moped under the circumstances, submission of excessive speed lacked evidentiary support for another reason.

The jury, in order to return a verdict for defendant on the ground that plaintiff was contributorily negligent in driving at an excessive speed, had to find not only that plaintiff was negligent in driving at that speed, but also that such speed was a directly contributing cause of the collision. Bowman v. Heffron, 318 S.W.2d 269, 274[6] (Mo.1958); MAI 32.01(2) [1978 New] (3d ed. 1981).

Excessive speed is not the proximate cause of a motor vehicle collision unless it prevents the operator of the vehicle traveling at the excessive speed from avoiding the accident; hence, it must be shown that the collision would not have occurred except for the excessive speed shown by the evidence. Calvert v. Super Propane Corp., 400 S.W.2d 133, 139[5] (Mo.1966); Powell, 526 S.W.2d at 326[12]; 5 Mo.Dig.2d, Automobiles, Key No. 201(2). Causal connection between the excessive speed and the collision must be proved by the evidence, as a fact, and not be left to mere speculation and conjecture. Watt v. St. Louis Public Service Co., 354 S.W.2d 889, 891[2] (Mo.1962). This rule, however, does not require that there must be direct proof of the fact itself; it is sufficient if the facts proved are of such a nature and are so connected and related to each other, that the conclusion therefrom may be fairly inferred. Id.; Calvert, 400 S.W.2d at 139[6].

It was undisputed that plaintiff was only 10 feet from the Pontiac when he first saw it. Whether he should have seen it earlier (an inquiry relevant to whether he failed to keep a careful lookout) is immaterial to whether his speed was a proximate cause of the accident. The speed issue is determined independently of the lookout issue.

The trial court took judicial notice that a driver’s “normal reaction time” is three-fourths of a second. At 20 miles per hour, the moped would have covered the 10 feet between it and the point of impact in .34 second, less than half the reaction time. It is therefore obvious that at 20 miles per hour, plaintiff had no opportunity to take preventive action upon seeing the Pontiac.

There was no testimony as to the length of the Pontiac, but photographs reveal it is a 4-door sedan, and that the moped struck it on the right front fender, entirely ahead of the front door. It is thus evident that at least 10 feet of the Pontiac had not passed the point of impact at the time of the collision.

Had plaintiff been going 10 miles per hour, it would have taken him .68 second to reach the point of impact after seeing the Pontiac, twice as long as the .34 second required at 20 miles per hour (but still less than the ¾ second reaction time).

Defendant did not testify as to her speed when the vehicles collided, but two independent witnesses gave their estimates. One said the Pontiac’s speed was “less than 15.” The other said “about 10 miles, maybe slower.”

At 14 miles per hour, the evidence most favorable to defendant for the purpose of this aspect of the case, the Pontiac travels 20.5 feet per second. Had plaintiff been going 10 miles per hour instead of 20, the Pontiac would have traveled about 7 feet farther during the additional .34 second required for plaintiff to reach the point of impact, still not far enough to clear plaintiff’s path. Obviously, at a speed slower than 14 miles per hour, the Pontiac would have traveled even fewer feet, thus remaining in the impact zone.

It is consequently apparent that even had plaintiff been going only 10 miles per hour, the accident would have nonetheless occurred. Ten miles per hour, in the circumstances here, would unquestionably not have been an excessive speed for plaintiff. Therefore, as the collision was unavoidable even at 10 miles per hour, plaintiff’s speed of 20 miles per hour, even if negligently excessive, was not the cause, or a contributing cause, of the accident. That being so, the evidence viewed most favorably to defendant failed to supply the element of causation in regard to plaintiff’s alleged excessive speed. Lacking that element, submission of excessive speed as an assignment of contributory negligence was error. McCreary v. Conroy, 611 S.W.2d 234, 235[1] (Mo.App.1980); Stotler v. Bollinger, 501 S.W.2d 558, 560[1] (Mo.App.1973).

If one assignment of negligence is erroneously included in a multiple disjunctive submission of contributory negligence, the instruction is erroneous. Saupe v. Kertz, 523 S.W.2d 826, 830[4] (Mo. banc 1975); Ferguson v. Ginn, 652 S.W.2d 295, 298[4] (Mo.App.1983). The error is prejudicial, and requires a new trial. Id.; Gilpin v. Pitman, 577 S.W.2d 72 (Mo.App.1978).

Having decided this much, we do not reach plaintiff’s complaint about the submission of failure to keep a careful lookout as an assignment of contributory negligence.

The judgment is reversed and the cause is remanded for a new trial.

PREWITT, C.J., HOGAN, P.J., and MAUS, J., concur.

      . Trial occurred before Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), which abolished the doctrine of contributory negligence, replacing it with a system of comparative fault. Id. at 16.

      . The submission was based on an ordinance of the City of Springfield providing: "The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.”

      . Koogler v. Mound City Cab Co., 349 S.W.2d 233, 237[6] (Mo.1961).


author: MAUS, Presiding Judge.

text:
    Carolyn VIENHAGE, Public Administrator of Greene County, Personal Representative of the Estate of Calley Columbis a/k/a Calley Calliope, Deceased, Plaintiff-Respondent, v. John CARTER, Defendant-Appellant.
    No. 13288.
    Missouri Court of Appeals, Southern District, Division Two.
    Oct. 25, 1984.
    Motion for Rehearing or Transfer Denied Nov. 16, 1984.

      Henry S. Clapper, Monroe, Clapper & Randall, Monett, for defendant-appellant.
    Jay P. Cummings, Gannaway, Fiorella & Cummings, Springfield, for plaintiff-respondent.
   MAUS, Presiding Judge.

This action was commenced by the guardian of Calley Columbis to set aside a deed executed by her ward. Her petition alleged the deed was executed when the ward was incompetent, as the result of undue influence and was without consideration. The petition was filed on December 10,1979. Trial was inordinately delayed by the hospitalization or illness of the defendant at the time of each trial setting. Ultimately, his deposition was taken by the plaintiff and his testimony presented in that manner. On September 21, 1982, the trial court found the deed invalid for each of the reasons alleged and entered judgment as prayed. The same result was reached by a first amended judgment. The defendant appealed. The ward died after the appeal was submitted to this court. The Public Administrator of Greene County, as Personal Representative of the deceased ward’s estate, has been substituted as plaintiff-respondent. The defendant presents three points on appeal.

The record presents only a sketchy outline of the background for the execution of the deed on June 6,1979. The ward was 76 years old. She owned at least two tracts of residential property. One was on Lynn Street, the other on North Broadway. There was a house and a garage remodeled into what was called a little house on the Broadway tract. That tract is the subject of this case.

In approximately 1976, the defendant and his mother as tenants moved into the house on the Broadway tract. At a time not clear from the record, they apparently moved into the little house. By inference the ward moved to the Broadway property. The defendant in 1976 was approximately 46 years old. Until he was injured in an automobile accident he was a self-employed, independent insurance adjuster, or “facilitator.” He and his mother became acquainted with the ward. They went places together. They all participated in and attended conferences of the Gospel Peace Church. This was a non-denominational church headed by Rev. Woodrow Morris. Headquarters wás in Hopkinsville, Kentucky. The three associated with and visited other members of that church. At an undisclosed time, the defendant’s mother sued the ward for personal injuries alleged to have resulted from a fall on the Broadway tract. The defendant testified the ward wanted to give him the Broadway tract because of the assistance he had rendered to her. The record discloses little concerning the execution of the deed in question. It was executed in the office of an attorney. The defendant and his mother were there. The defendant did not know how the ward got there.

As stated, the deed under attack was executed on June 6, 1979. On August 14, 1979, the ward executed a second warranty deed in form conveying the tract to her attorney as “trustee, pursuant to Trust Agreement executed of even date with this Deed.” On August 24,1979, the defendant executed a warranty deed in form conveying the property to Richard L. Worsham of Christian County, Kentucky. Worsham was the nephew of the Rev. Morris of the Gospel Peace Church. Thereafter, Wors-ham and his wife were added as defendants. Later they reconveyed to the defendant and were dismissed.

The defendant first asserts error because Jay P. Cummings, as trustee under the deed of August 14, 1979, is not a party plaintiff. In making this point the defendant cites Rule 52.04 and Neal v. Drennan, 640 S.W.2d 132 (Mo.App.1982) and states the trustee was an indispensable party. The defendant first raised this point on appeal. “A finding of fatal non-joinder only serves to supply defendant with an ill-deserved bounty for his lying-in-wait and does not comport with the purpose of Rule 52.04 to prevent repeated litigation on the same issues.” Skidmore v. Back, 512 S.W.2d 223, 234 (Mo.App.1974).

Further, the appellant has not addressed the issue of whether the trustee is an indispensable party as distinguished from a necessary party.

Under the modern approach, therefore, it must first be determined under Rule 52.04(a) whether the absent person is to be joined and, after it is determined that he should be so joined, then the particular case must be examined in the light of the factors in subdivision (b) to determine whether the action may proceed in the absence of the nonjoined party or is to be dismissed.

State ex rel. Emasco Ins. Co. v. Rush, 546 S.W.2d 188, 196 (Mo.App.1977). Also see Kingsley v. Burack, 536 S.W.2d 7 (Mo. banc 1976); Morgan v. Wartenbee, 569 S.W.2d 391 (Mo.App.1978). However, it is not necessary to further consider this aspect or the issue of waiver. Compare Skidmore v. Back, supra; Rule 55.27(g); Massey v. Long, 608 S.W.2d 547 (Mo.App.1980).

The deed of August 14, 1979, imposed no duties upon the trustee. The actual existence of a trust agreement was not established. From all that appears from the record it was a dry trust. Cornwell v. Orton, 126 Mo. 355, 27 S.W. 536 (1894). Any title conveyed redounded to the grantor. § 456.020, RSMo 1978; Blumenthal v. Blumenthal, 251 Mo. 693, 158 S.W. 648 (1913); Carter v. Long, 181 Mo. 701, 81 S.W. 162 (1904). Compare § 456.-020, RSMo Supp.1983; Penney v. White, 594 S.W.2d 632 (Mo.App.1980). “Where a trust is dry and executed by the statute of uses so that a legal title as well as equitable ownership is in the beneficiary, the beneficiary and not the trustee is the proper party plaintiff in a suit to enforce a cause of action pertaining thereto.” 76 Am.Jur.2d Trusts § 607 (1975). The appellant’s first point is denied.

The appellant next asserts that the trial court erred in permitting two lay witnesses to express opinions that the ward was incompetent. The rule is well established in this state:

[A] lay witness is not competent to testify that, in the opinion of such witness, a person is of unsound mind or insane, without first relating the facts upon which such opinion is based; and, when the facts have been stated by such lay witness, unless such facts are inconsistent with such person’s sanity, the opinion of such lay witness that the person under consideration was insane or of unsound mind, is not admissible in evidence and may not be received.

Lee v. Ullery, 346 Mo. 236, 244, 140 S.W.2d 5, 9 (1940).

Appellant contends that the lay witnesses in this case did not first state facts inconsistent with competency sufficient to establish a basis for their opinions. The first witness was the guardian, Joanna Butterworth. She testified she had known the ward for IIV2 years. They corresponded by mail regularly while Mrs. Butter-worth lived in England and New Jersey. In March, April and May, 1979, the ward called Mrs. Butterworth several times each day. They also visited in person on numerous occasions. From June to September, 1979, the ward resided in Mrs. Butter-worth’s home. Mrs. Butterworth testified to specific incidences of behavior which were “abnormal, unusual and incoherent.” The ward constantly misplaced her own belongings. Once she was unable to find her false teeth. After two days of searching, they were found under the grapes in the refrigerator. She was unable to find her way around the house. She would wake up in the middle of the night to go to the restroom and would require assistance in finding her way back to her bedroom. The ward was unable to communicate properly about business affairs of any kind. She once was unable to subtract $2.00 from an amount she had. She called the bank to check on balances of accounts which had been closed, but she could not remember closing them. At times she was incoherent. On occasion she spoke to the dead.

The second witness was Don Busch, an attorney and city manager of Springfield. He testified that through her complaints to his office he had known the ward for a number of years. From sometime in 1978 through July of 1979, the ward was badly confused. He repeatedly discussed with her the appellant’s mother’s tort claim. Even though she had liability insurance, he could not convince her the appellant would not take her property. She said she was eating weeds from her garden. Each of these witnesses was qualified to express an opinion that during the period in question, the ward was incompetent. Thompson v. Curators of University of Missouri, 488 S.W.2d 617 (Mo.1973); Barnes v. Marshall, 467 S.W.2d 70 (Mo.1971). The appellant’s second point is denied.

The appellant’s next point is that there was no substantial evidence to support the determination the ward was incompetent. This contention is sufficiently refuted by the evidence related by and the opinions of witnesses Butterworth and Busch. Further, there was much additional evidence of incompetency. In 1979 she talked at least 50 times to a volunteer social worker. She expressed a constant fear the appellant would get her property. She reported he had proposed marriage to her. Both orally and in writing she expressed her inability to remember where she had been on trips with appellant. She was confused and couldn’t remember what she had done. She repeatedly expressed a fear “she was going out of her mind.” In September, 1979, she was examined by a clinical psychologist. He found she was suffering from nonpsychotic organic brain syndrome, senility. He described this as a slow, progressive condition.

In addition to this affirmative evidence, the trial court could consider the conduct of the defendant. The trial court could have found his conveyance to Wors-ham voluntary and an admission of the validity of the guardian’s claim. Amsinger v. Najim, 335 Mo. 528, 73 S.W.2d 214 (1934).

To support his contention the defendant cites opinions of competency by a chiropractor and Rev. Morris and another member of the Gospel Peace Church. The latter reported the ward had expressed a desire to give the property to the defendant and later expressed satisfaction at having done so. This court must give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01; Cozean v. Heisler, 612 S.W.2d 817 (Mo.App.1981). The trial court rejected this testimony and it was within its province to do so. Labor Discount Center, Inc. v. State Bank and Trust Co. of Wellston, 526 S.W.2d 407 (Mo.App.1975).

Also to support his contention, the defendant seizes upon a bit of testimony of the psychologist that in September there was no way he could tell how the ward behaved the day previously. Therefore, the appellant argues, there is no evidence of incompetency on June 6, 1979. It was not necessary to show by an eye witness, incompetency at the moment of the execution of the deed. Evidence of the ward’s mental condition before and after the execution is sufficient if it provides a reasonable inference of incompetency at the time of execution. Thompson v. Curators of University of Missouri, supra. The evidence in this case provided such an inference. Foster v. Henderson, 538 S.W.2d 910 (Mo.App.1976).

The determination of the trial court that the ward did not have sufficient capacity to execute the deed of June 6, 1979, is supported by the evidence. It is therefore not necessary to consider the appellant’s contentions concerning undue influence and failure of consideration. The judgment is affirmed.

HOGAN and PREWITT, JJ., concur.


author: MANFORD, Judge.

text:
    Walter BUCKLEY, Respondent, v. James Lee BUCKLEY, et al., Appellants.
    No. WD 35291.
    Missouri Court of Appeals, Western District.
    Nov. 6, 1984.

      Robert É. Douglas of Brown, Douglas & Brown, St. Joseph, for appellants.
    Ronald S. Reed, Jr. of Morton, Reed & Counts, St. Joseph, for respondent.
    Before TURNAGE, C.J., and SHAN-GLER and MANFORD, JJ.
   MANFORD, Judge.

This is a civil action seeking quiet title, partition, and an accounting. The judgment is reversed and the cause remanded.

The case was tried upon a stipulation of facts to the trial court. While two points are formally presented to this court, they can and are, for purposes of the disposition of this appeal, combined into one point, which charges that the trial court, in entering judgment for respondent, erroneously interpreted the will of Carrie Ann Grissinger.

In summary, the facts are as follows.

Carrie Ann Grissinger died on or about October 3, 1957. At her death, she possessed the fee simple in a farm consisting of some 215 acres in Andrew County, Missouri. She left a last will and testament with codicil. She was survived by her husband, Oakey Grissinger, and two sons, Willis Buckley and Homer Buckley. In her will, Carrie Grissinger devised the 215-acre farm as follows:

3. I give and devise unto my husband, Oakey M. Grissinger, all of my real estate to have and to hold for and during his natural life, and at his death said real estate shall go to my two sons, Homer James Buckley and Willis Adelbert Buckley, for and during their natural life, and during the life of the survivor thereof; and on the death of the survivor thereof said real estate shall go to the children of Homer James Buckley and Willis Adel-bert Buckley, share and share alike, in fee simple.

Oakey Grissinger, the first life tenant, died on May 17, 1982, surviving both Homer Buckley (who died in 1962), and Willis Buckley (who died in 1977). At his death, Homer Buckley had two sons, Walter Buckley and Maurice Buckley. Walter Buckley is respondent herein, and Maurice Buckley is the father of James Lee Buckley and husband of appellant Hazel Buckley. Maurice Buckley died intestate in 1975 and was survived by appellants. Willis Buckley died leaving neither a spouse nor children.

From the foregoing facts, the trial court herein ruled Walter Buckley to be the sole owner in fee simple of the 215-acre tract.

Appellants assert that the ruling of the trial court affixing the entire fee in Walter Buckley and the awarding of all the 1982 landlords’ net share of crop income to Walter Buckley was erroneous, because at the death of Carrie Grissinger, the original testatrix, title to the fee vested in Walter Buckley and Maurice Buckley, and upon the death of Maurice Buckley, his interest passed to appellants who are his surviving spouse and son.

The trial court concluded that title to the fee did not vest until the death of the survivor of Homer Buckley and Willis Buckley, or until the death of the original life tenant, Oakey Grissinger. The trial court erroneously declared and applied the law requiring reversal herein.

In Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947, 950 (1934), the Missouri Supreme Court held that the vesting of estates is favored, so unless a testator has, by clear words, manifested an intent to the contrary, the persons who take under the will, as members of a designated class, must be determined at the time of the death of the testator and the estates given to them vest at that time.

Reference to the above clause of Carrie Grissinger’s will discloses the phrase, “to the children of Homer James Buckley and Willis Adelbert Buckley.” This wording created a class composed of said children and the interests of those children vested at the time of death of Carrie Grissinger. Gardner, supra. There is not to be found any words to the contrary within the will of Carrie Grissinger and the law favors vesting. Gardner, supra. See also Uphaus v. Uphaus, 315 S.W.2d 801, 804 (Mo.1958).

The vested interests established by the will of Carrie Grissinger were subject to the laws of descent and distribution in the absence of any wills executed by the takers under the will of Carrie Grissinger. 26A C.J.S. § 8 Descent and Distribution at 533 (1956). Therefore, the vested remainder held by Maurice Buckley passed at his death to Hazel Buckley, his surviving wife and his son, James Lee Buckley (appellants herein) by descent. Williams v. Reid, 37 S.W.2d 537 (Mo.1931).

For clarification, it should be noted that the phrase “share and share alike” declared in the will of Carrie Grissinger did not create a joint tenancy which includes the right of survivorship. Section 442.450, RSMo 1978 declares that every interest in land devised to two or more persons shall be a tenancy in common unless it is expressly declared to be a joint tenancy. See also Powers v. Buckowitz, 347 S.W.2d 174 (Mo. banc 1961). There is no express declaration of joint tenancy in the will of Carrie Grissinger.

The judgment herein is reversed and this cause is remanded with specific directions to the circuit court to conduct further proceedings for the express and limited purpose of determining the specific interest in the fee title and the landlords’ net share of income for the year 1982 and all subsequent years as between the appellants and respondent.

All concur.