author: DONNELLY, Judge.

text:
    Sherry M. LOWREY, individually, et al., Minors, by and through their Mother and Next Friend, Sherry M. Lowrey, Appellants, v. Carolyn J. HORVATH, individually, and The Estate of Charles O. Horvath, Carolyn J. Horvath, Administratrix, Respondents.
    No. 66277.
    Supreme Court of Missouri, En Banc.
    April 30, 1985.
    Rehearing Denied May 29, 1985.
    Kirk R. Presley, Bart L. Strother, Kansas City, Lawrence V. Fisher, Plattsburg, for appellants.
    Mary Knaus LeCluyse, George T. O’Laughlin, Kansas City, for respondents.
   DONNELLY, Judge.

Sherry Lowrey and her three minor children, Roxanna Lowrey, Dallas Lowrey and Robert Lowrey, instituted this action against Carolyn Horvath and the estate of Charles Horvath to recover damages for the wrongful death of their husband and father, Bobby Lowrey, and to recover damages for personal injuries sustained by Sherry Lowrey. An appeal was taken from an order of the trial court sustaining defendants’ motion to dismiss Count I of plaintiffs’ petition. Count I set forth the averments pertaining to the wrongful death claim. The Western District of the Court of Appeals reversed the judgment of dismissal of the trial court and remanded the case for trial upon the merits. Upon a belief that its holding conflicted with the holding of the Eastern District of the Court of Appeals in Betz v. Glaser, 375 S.W.2d 611 (Mo.App.1964) and for the purpose of reexamination of existing law, the court of appeals, on its own motion, transferred this case to the Supreme Court. Rule 83.02. This case will now be determined as though the original appeal had been brought directly to this Court. Mo. Const, art. V, § 10.

In reviewing the trial court’s dismissal of plaintiffs’ petition for failure to state a claim upon which relief can be granted, the sole issue to be. decided is whether, after allowing the pleading its broadest intendment, treating all facts alleged as true and construing all allegations favorably to plaintiffs, the averments invoke principles of substantive law entitling plaintiffs to relief. Shapiro v. Columbia Union National Bank and Trust Co., 576 S.W.2d 310, 312 (Mo. banc 1978). The aver-ments in Count I of plaintiffs’ petition include the following facts: that Sherry Low-rey was the lawful wife and is now the widow of Bobby Lowrey and that Robert Lowrey, Roxanna Lowrey, and Dallas Low-rey are the minor children of Bobby Low-rey whose wrongful death is the subject matter of this action; that Carolyn Hor-vath is the widow of Charles Horvath, and the administratrix of his estate; that Bobby Lowrey, at the request of Carolyn Hor-vath, entered a well located on property owned jointly by Carolyn and Charles Hor-vath in order to render assistance to Charles Horvath who had previously entered the well for the purpose of cleaning and repairing it; that Carolyn Horvath requested Bobby Lowrey’s help in the belief that her husband may have been injured or ill; that Bobby Lowrey, after receiving Carolyn Horvath’s request for help, attempted to render assistance to Charles Horvath inside of the well and thereafter collapsed and died as a result of asphyxiation; that Carolyn and Charles Horvath were negligent in the manner in which they undertook to clean and repair the well in that Carolyn and/or Charles Horvath placed a gasoline powered pump in or immediately above the well and Carolyn and Charles Horvath knew or in the exercise of ordinary care should have known that locating the pump in such a position created a grave risk of death or serious physical injury to those entering the well; and that as a direct and proximate result of the negligence of Carolyn and Charles Horvath and the death of Bobby Lowrey, plaintiffs have sustained damages.

Relying on Betz v. Glaser, 375 S.W.2d 611 (Mo.App.1964), defendants argue that the trial court properly dismissed Count I for failure to state a claim upon which relief can be granted because the petition fails to reveal how defendants violated any duty of care owed to Bobby Lowrey. Plaintiffs, on the other hand, contend that under the “rescue doctrine” the petition sufficiently charges defendant-decedent Charles Horvath with negligence in placing himself in a perilous situation that was likely to invite a rescue attempt by others.

A variant of what is now referred to as the “rescue doctrine” was recognized by this Court for the first time in Donahoe v. The Wabash, St. Louis and Pacific Railway Co., 83 Mo. 560 (1884). Under the rule which has developed, a person who is injured in the course of undertaking a rescue may recover from the person whose negligence created the peril necessitating the rescue so long as the rescuer’s conduct is not rash or reckless. Welch v. Hesston Corp., 540 S.W.2d 127, 129 (Mo.App.1976); National Dairy Products Corp. v. Freschi, 393 S.W.2d 48, 49, 57 (Mo.App.1965). See generally, W. Prosser & P. Keeton, The Law of Torts § 44, at 307-08 (5th ed. 1984); Restatement (Second) of Torts §§ 445 Comment d, 472 (1965). The rescue doctrine offers two important benefits to the person who is attempting to recover for injuries incurred during a rescue attempt. First, under the rescue doctrine it is not negligence to knowingly and voluntarily place one’s self in a position where the likelihood of receiving serious physical injury is great when the exposure to such danger is conducted in a reasonable manner and for the purpose of saving human life. McConnell v. Pic-Walsh Freight Co., 432 S.W.2d 292 (Mo.1968); Hammonds v. Haven, 280 S.W.2d 814 (Mo.1955). Second, the plaintiff may invoke the rescue doctrine to establish “that the defendant’s negligence in creating the peril which induced the injured person to attempt to rescue another who was imperiled was the proximate cause of the injury for which recovery is sought * * *.” 57 Am.Jur.2d Negligence § 418 (1971). See, e.g., Stone’s Independent Oil Distributors v. Bailey, 122 Ga.App. 294, 176 S.E.2d 613 (Ga.Ct.App.1970).

The rescue cases which have heretofore been considered by this Court have involved situations in which the plaintiff sought recovery from a defendant whose negligent conduct placed a “third party” in a position of peril that invited the plaintiff to attempt a rescue. See, e.g., McConnell, 432 S.W.2d 292 (Mo.1968); Dulley v. Berkley, 304 S.W.2d 878 (Mo.1957). The case at bar presents to this Court for the first time the question whether a person injured during a reasonable attempt to rescue another may recover from the person who was the target of the rescue when that person was guilty of negligently imperiling himself. See generally, 65A C.J.S. Negligence § 124 (1966). This question was addressed by the Eastern District of the Court of Appeals in Betz. Defendant relies on Betz for the proposition that a person has no legal duty to avoid placing himself in a position of peril that is likely to invite rescue.

In Betz, the plaintiff was standing on a ladder trimming branches from a tree when the defendant negligently wandered beneath the portions of the tree being trimmed. 375 S.W.2d at 612. Apparently the plaintiff saw the defendant in danger of being struck by a falling limb and, in the process of attempting to “rescue” the defendant by grabbing the limb, lost his balance and fell from the ladder. Id. The plaintiff sustained serious injury by reason of the fall. Id. In affirming the judgment of the trial court granting the defendant’s motion for judgment notwithstanding the verdict, the court of appeals concluded that it was not possible to charge the defendant with negligence under the circumstances because the defendant could not have reasonably foreseen that in walking under a tree which the plaintiff was trimming he was in any way endangering the plaintiff. Id. at 613-14.

Our general rules governing negligence liability do not support the conclusion reached in Betz, and do not support the contention made by defendants in their brief that, “defendant-decedent Charles Horvath * * * owed no duty of care to the chance rescuer since the only risk that could be anticipated was to himself.” As a general proposition, a duty of care which is imposed by the law of negligence arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury. Gold v. Heath, 392 S.W.2d 298, 303 (Mo.1965); Green v. Kahn, 391 S.W.2d 269, 275 (Mo.1965). Nevertheless, the determination of foreseeability “does not depend alone upon whether, in the exercise of reasonable diligence, a defendant could foresee or ought to have foreseen, the very injury complained of, but the party charged with negligence may be held liable for any injury which, after the casualty, appears to have been a natural and probable consequence of his act or omission.” Boyd v. Terminal Railroad Association of St. Louis, 289 S.W.2d 33, 37 (Mo.1956). See Tharp v. Monsees, 327 S.W.2d 889, 894 (Mo. banc 1959); Dodson v. Maddox, 359 Mo. 742, 751-52, 223 S.W.2d 434, 439 (1949).

Recovery under the rescue doctrine is based upon the theory that danger invites rescue and therefore “the negligence or wrong that imperils life is not only a wrong to the imperiled victim but is also a wrong (negligence) to his rescuer.” Dul ley, 304 S.W.2d at 883. For this reason, persons who have negligently forced some “third party” into a situation inviting the plaintiffs rescue have been held liable for the plaintiffs injury even though they might not have contemplated that someone would attempt to extricate the third party from danger. In the oft repeated words of Judge Cardozo, although the wrongdoer “may not have foreseen the coming of a deliverer [h]e is accountable as if he had.” Wagner v. International Ry. Co., 232 N.Y. 176, 180, 133 N.E. 437, 438 (1921).

There is no logical basis for distinguishing between the situation in which recovery is sought against a defendant whose negligence imperiled some third party, and the situation in which recovery is sought against a defendant who negligently imperiled himself. A person with reasonable foresight who negligently imperils another or who negligently imperils himself will normally contemplate the probability of an attempted rescue, in the course of which the rescuer may sustain injury. Under the rescue doctrine, “the right of action depends * * * upon the wrongfulness of the defendant’s conduct in its tendency * * * to cause the rescuer to take the risk involved in the attempted rescue. And * * * a person who carelessly exposes himself to danger or who attempts to take his life in a place where others may be expected to be, does commit a wrongful act towards them in that it exposes them to a recognizable risk of injury.” F. Bohlen, Studies in the Law of Torts, 569 n. 33 (1926).

We conclude that given the natural reactions and conduct to be expected of ordinary people in a life-threatening situation, there is a probability of injury sufficiently serious that a reasonable person will take precautions to avoid placing himself in a position of peril that is likely to invite rescue. See Dodson, 223 S.W.2d at 439. See generally, Annot. 4 ALR3d 558 (1965); 57 Am.Jur.2d Negligence § 424 (1971). Insofar as Betz is inconsistent with this opinion, it is expressly overruled.

For the reasons stated in this opinion, the averments of plaintiffs’ petition do not conclusively demonstrate that substantive principles of law applied to the facts which may develop will not entitle plaintiffs to the relief prayed. The judgment dismissing Count I of plaintiffs’ petition is reversed and the case is remanded for a trial upon the merits.

All concur.


source: Caselaw Access Project

author: REINHARD, Chief Judge. KAROHL, Judge,

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. James McKINLEY, Respondent-Appellant.
    No. 47952.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 2, 1984.
    Motion for Rehearing and/or Transfer Denied Nov. 1, 1984.

      John H. Cassidy, III, St. Louis, for respondent-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
   REINHARD, Chief Judge.

Defendant appeals after a jury conviction of robbery in the first degree and a court-imposed sentence as a prior offender to seventeen years in the Missouri Department of Corrections. His sole point on appeal is:

The trial court committed plain error in not ordering a mistrial upon its own motion in that the prosecutor’s comment, “The defendant has the presumption of innocence. That’s not evidence like a witness who took the stand in this case and cross-examined and whose credibility and demeanor were tested in front of you. It’s not proof of anything, just as defendant’s failure to testify is not proof of anything,” is impermissible because such comments directly violate appellant’s right against self-incrimination under Amendment Five, United States Constitution, and Article I, Section 19, Missouri Constitution.

Defendant neither objected to the comments at trial, nor raised the issue in his motion for new trial.

This case comes to the writer on reassignment.

The record reveals that defendant and another man entered the real estate office of eighty-seven year old Harry Ewers, Jr., around 1:30 p.m. on May 20, 1983. They asked Ewers about the possibility of employment. As Ewers handed defendant a piece of paper on which to write their names, the other man displayed a handgun. The two men took Ewers toward the back office of his business, and Ewers attempted to defend himself with a chair. The intruders took the chair from him and pushed him into the back office. Ewers’ secretary, Linda Hellon, was also ordered into the back room.

Ewers’ wallet, containing cash and eleven credit cards, was taken from him and his hands were tied behind his back. The man wielding the gun ordered the secretary to open the safe in the back office, but then took her to the safe in the front office. She opened it, and the man took the cash inside.

One of the men then demanded to know where the basement door was located. As he attempted to open the basement door, the secretary ran to the front door. She managed to open the door partially, but the man at the basement door reached her in time to prevent her escape by grabbing her arm and pushing the door closed. The force he used on the glass door caused it to shatter. When this occurred, both men fled the building. The secretary phoned the police.

After the police arrived at the scene, employees from two neighboring businesses contacted police. One of them, Linda Brewer, was working at the front window of a cleaning store around the time of the robbery. The store was located within view of Ewers’ real estate office. She saw defendant and his accomplice sitting in a parked white automobile. After five or ten minutes, she saw them leave the car, start across Grand Avenue and then turn around and get back in the car. The two then got out of the car again, crossed Grand Avenue, and walked northward toward Ewers’ office. She continued work until she noticed police at Ewers’ business; at that time she also noticed the white car was gone. She then contacted police.

The other witness was J.R. Kemp, who worked as an antique dealer on the same block as Ewers’ business. He noticed a white automobile with no license plates circle the block five times, and he became suspicious. He observed defendant and his accomplice as they sat in the car after it was parked, and then saw them leave the car, cross Grand Avenue, and look into his storefront window for approximately five minutes. After tending to a customer, Kemp noticed the car was gone, and then saw the police at Ewers’ place of business. He then contacted the police himself.

After the police got a description of the white automobile, a police broadcast was made concerning the robbery and vehicle. A police officer heard the broadcast and observed a parked vehicle fitting the description. When a young woman left an apartment and drove away in the car, the officer stopped her and called the detectives who were investigating the robbery. The detectives had her sign a consent-to-search form for her apartment. Upon searching her apartment, detectives found defendant hiding in a closet, and his accomplice in an attic crawl space. They also found an open suitcase containing a loaded gun and clothing. After defendant was found, he called out, “Travis, come on down. It’s all over. They got us.” The two men were placed under arrest and taken to the police station.

A line-up was held at the station later that day. Ewers, Linda Hellon, Linda Brewer, and J.R. Kemp all identified defendant and his accomplice. Detectives also found fingerprints of the accomplice at the scene of the crime. At trial, the four identifying witnesses again identified defendant. Ewers and Hellon, the victims, testified that defendant’s accomplice had a gun. Also, a police' officer testified that defendant admitted the following facts to him: on the day before the robbery, a man told defendant that he knew of someone defendant could rob at a real estate office, and the man guaranteed a certain amount of money would be in the office. Defendant discussed it with his accomplice, and the next day the accomplice got a gun from the man. The man wanted Mr. Ewers’ ring. Defendant also admitted he was at the scene of the crime.

Defendant did not testify or put on any evidence. He requested an instruction based on MAI-CR2d 3.76, which states:

Under the law, a defendant has the right not to testify. No presumption of guilt may be raised and no inference of any kind may be drawn from the fact that the defendant did not testify.

This instruction is given only if requested by defendant. See Notes on Use, MAI-CR2d 3.76.

Directly after the instructions were read to the jury (including the above instruction), the prosecuting attorney began his closing argument with the following statement:

I submit to you, your decision in this case is probably far easier than in many criminal cases that you’ll sit or have sat on in the past, but we need to go through some basics, like we did in voir dire. Namely, the defendant has the presumption of innocence. That’s not evidence like a witness who took the stand in this case and cross-examined and his credibility and demeanor was tested in front of you. It’s not proof of anything, just as the defendant’s failure to testify is not proof of anything.

The prosecutor made no further comment even vaguely resembling a reference to defendant’s failure to testify. After closing arguments, the jury retired to the jury room and took with it all of the court’s instructions, including the one defendant had submitted pertaining to his failure to testify. A guilty verdict was returned in thirty-seven minutes. Subsequently the court sentenced defendant, having found him to be a prior offender. In order to put the challenged comment by the prosecutor into proper perspective, we note also that on voir dire, defense counsel questioned prospective jurors on whether they would be affected if defendant did not take the stand.

The privilege against self-incrimination is guaranteed by both the federal and state constitutions, and has also been the subject of both a statute and a Supreme Court Rule. Section 546.270, RSMo.1978; Rule 27.05(a). Both direct and indirect references at trial to a defendant’s failure to testify are forbidden. Direct references are those which utilize the words “defendant” or “accused,” and “testify.” Indirect references are those which are reasonably apt to have directed the jury’s attention to the defendant’s failure to testify. State v. Shields, 391 S.W.2d 909, 912-13 (Mo.1965). Direct references, if properly preserved, almost always require a reversal. See, e.g., State v. Shuls, 329 Mo. 245, 44 S.W.2d 94 (1931).

The prosecutor’s comment in the present case was a direct reference to defendant’s failure to testify. However, because defendant made no objection, the issue was not properly preserved for our review. State v. Bankhead, 536 S.W.2d 172 (Mo.App.1976). We, therefore, must determine whether the plain error rule should be invoked in this ease. Rule 30.20 provides that “[p]lain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” The Missouri Supreme Court further elaborated on the plain error doctrine in State v. Hurtt, 509 S.W.2d 14, 15 (Mo.1974), wherein it stated:

In order to invoke the plain error rule there must be a “sound, substantial manifestation ... a strong, clear showing, that injustice or miscarriage of justice will result if the rule is not invoked.” [citation omitted] ... When guilt is established by ... overwhelming evidence no injustice or miscarriage of justice will result from a refusal to invoke the rule.

Two more recent pronouncements have been made by the Missouri Supreme Court which also aid us in resolving this case. Both of them involve arguments to the jury. In State v. Murphy, 592 S.W.2d 727, 732 (Mo.1979), the court affirmed a life sentence and held that:

The [plain error] rule does not cover all trial error, should be exercised sparingly, cannot be used as a vehicle for review of every alleged trial error which is not asserted or preserved for review, and is limited in its application to cases where there is a manifestation and showing that injustice or miscarriage of justice results if the rule is not invoked. Ordinarily, alleged errors on closing argument do not justify relief under this standard unless they are determined to have a decisive effect on the jury.

These principles were reiterated in the affirmance of a death penalty in State v. Newton, 627 S.W.2d 606 (Mo. banc 1982).

Although defendant asks us to invoke the plain error rule in this case, most of the cases he cites involve harmless error. He fails to cite any cases which were reversed for plain error because of a direct reference in closing argument to a defendant’s failure to testify. Our research reveals that there are cases in which such a reference was held to deprive the accused of a fair trial. See, e.g., State v. Ellinger, 549 S.W.2d 136 (Mo.App.1977).

In Ellinger, the defendant was convicted of exhibiting a deadly weapon in a rude, angry and threatening manner in a restaurant. He challenged the prosecutor’s closing argument on appeal, but had not objected at trial. The Ellinger court held that “[o]n the issue now presented as to whether manifest injustice has appeared, the touchstone of that inquiry is a consideration of all the evidence in the case and any other facts which may indicate the prejudicial effect of the error.” Id. at 140. The court went on to note that defendant’s witnesses presented a version of the event in question which was radically different from the version presented by the state’s witnesses. The court further noted that after approximately three and one half hours of deliberation, the jury informed the court that they could not reach a unanimous verdict, and that they were in conflict as to what certain witnesses had testified. The trial court instructed the jury that it would simply have to remember the evidence. After approximately another hour and one half of deliberation, the court gave the “hammer” instruction. The jury returned a verdict a short time later. In reversing and remanding Ellinger for a new trial, the court stated, “In these circumstances, it cannot be said that the guilt of the defendant is shown by such overwhelming and uncontradicted evidence that the error in the argument demonstrated above did not result in a manifest injustice to substantial rights of the defendant.” Id. at 140.

We have been unable to find a plain error case in which a direct reference was made in closing argument and in which the court gave the instruction on defendant’s failure to testify, MAI-CR2d 3.76. Here, MAI-CR2d 3.76 was given at defendant’s request. The giving of the instruction is, in itself, a comment by the court on the failure of the defendant to testify. State v. Smart, 485 S.W.2d 90, 95 (Mo.1972) (quoting State v. Kimball, 176 N.W.2d 864, 868 (Iowa 1970)). Our Supreme Court has indicated in a harmless error case that a defendant’s request for this instruction may waive his constitutional protection against an indirect reference to his failure to testify. State v. Zagorski, 632 S.W.2d 475, 478 (Mo. banc 1982). Here, we need not reach the question of whether the request for the instruction constitutes such a waiver in a direct reference case. However, in determining whether we will invoke the plain error rule, we may consider the request for the instruction along with all the other circumstances of the case when we determine the prejudicial effect of the prosecutor’s comment.

The strength of the state’s case is a prime factor in the determination of whether the trial court’s error resulted in a manifest injustice or a miscarriage of justice. Here, the state made an extremely strong case. It was the defendant who asked for the instruction on the effect of his failure to testify. The prosecutor’s argument contained no further reference than that quoted above. The jury did not assess punishment, and deliberated only thirty-seven minutes. Under these circumstances, we find no manifest injustice or miscarriage of justice.

Judgment affirmed.

CRANDALL, J., concurs.

KAROHL, J., dissents.

KAROHL, Judge,

dissenting.

I respectfully dissent.

The issue before the court in this case is whether the state may directly refer to the defendant’s failure to testify, a violation of the defendant’s constitutional, statutory and rule protection against self-incrimination, without committing prejudicial plain error. Also at issue is whether the court must on its own motion declare a mistrial if the state makes a direct reference argument and whether defendant’s voir dire questions or his submission of an MAI-CR 3.76 instruction is a waiver or in some way removes the prejudice of the argument.

The privilege against self-incrimination is unique in that it is a constitutional privilege found in both the federal and state constitutions which has been reenforced by both statute, § 546.270 RSMo 1978, and Supreme Court Rule 27.05(a). No other privilege has enjoyed the composite protection offered by constitutional, statutory and rule provisions. Read together these provisions absolutely forbid any reference before the jury to the constitutional right against self-incrimination. See State v. Barker, 399 S.W.2d 1, 3 (Mo.1966). This court noted in State v. Gray, 503 S.W.2d 457, 463 (Mo.App.1973) that a direct reference is plain error and “the only way to cure such a transgression is to abort the trial.” Id. at 463.

The prosecutor’s comment which violated defendant’s privilege against self-incrimination occurred at the very beginning of the state’s closing argument. An analysis of the argument indicates that the state attacked the presumption of innocence claiming it is less probative than testimony which is subject to cross-examination. Our appellate courts have frequently recognized that presumptions are the equivalent of proof. This was followed by a statement indicating that defendant’s failure to testify was not proof of innocence or guilt. This was a direct attack on the foundation of our system of criminal law since the defendant had no burden of proof on innocence. See Charles v. State, 573 S.W.2d 139, 141 (Mo.App.1978).

The state’s response to appellant’s point on appeal is:

The trial court did not commit plain error by not declaring a mistrial, sua sponte, when the prosecutor noted in closing argument that “the defendant’s failure to testify is not proof of anything”, because the prosecutor’s statement was nonprejudicial and any error had been waived by the defendant in that (1) the prosecutor’s statement contained only a general statement of the law and (2) appellant’s trial counsel, during voir dire examination, repeatedly indicated that the appellant might not testify, and that the jury was to be precluded from drawing adverse inferences from the defendant’s failure to testify or present any evidence.

The function of voir dire is the selection of a fair and impartial jury. In conducting a voir dire examination competent counsel must consider the nature of the case, the source and type of evidence to be offered, and the effect on the jury of defendant’s failure to take the stand and deny the charge or offer a defense.

We have held that the voir dire inquiry may be a waiver of the privilege against comment on defendant’s failure to testify in indirect reference cases. See State v. Harris, 636 S.W.2d 403, 404-405 (Mo.App.1982) and State v. Wilborn, 525 S.W.2d 87, 94-95 (Mo.App.1975). However, indirect references are not plain error. We said in State v. Gray, 503 S.W.2d at 462-463 that a direct reference is plain error. In order to achieve both the purpose of voir dire and insure protection of defendant’s rights against self-incrimination the voir dire questions cannot be deemed a waiver of defendant’s right. The questions’ sole purpose is to pick an impartial jury and should not be deemed a waiver of any rights later in trial.

For similar reasons the defendant’s request of an MAI-CR 3.76 instruction should not be a consideration in determining nonprejudice in a direct reference case. The instructions are determined before argument. The mandates of both constitutions, the statute and rule are applicable at the time instructions are determined and continue in force thereafter, including during closing argument. The instruction given by the court does not and should not lessen the prohibition against a direct reference argument. It should not be considered a waiver permitting direct references in any part of the state’s closing argument with the possible exception of a rereading of the instruction and then only with the permission of the court. Our Supreme Court recently said in State v. Williams, 673 S.W.2d 32, 36 (Mo. banc 1984),

It is appropriate to express concern about prosecutor’s attempts at subtle comment about the defendant’s failure to take the stand. Perhaps some of our holdings have been too tolerant of subtle references. A holding that a comment during argument does not require reversal of a particular conviction is not a license for the prosecutor’s use of similar argument in future cases.

In Williams the court reversed on other grounds but elected to discuss the issue in an indirect reference case. My dissent is addressed to the same concern, that prosecutors should not be permitted to make any reference to defendant’s failure to testify.

I would hold that the state may not make a direct reference argument as it is a violation of constitutional, statutory and rule prohibitions. Such argument is plain error and presumptively prejudicial and neither voir dire nor MAI-CR 3.76 instruction, individually or collectively, constitute either a waiver of the privilege nor render the argument harmless error. State v. Gray, 503 S.W.2d 457 (Mo.App.1973). None of the cases cited in the majority opinion’s footnote number 4 commenting on Gray dilute the effect of the Gray opinion. None of those cases deal with a prohibited direct reference to the defendant’s failure to testify. In one case the defendant testified, in another there was at most an indirect reference, in another there was found to be no reference at all. One dealt with the issue of the introduction of evidence contended to be prejudicial. One dealt with a contention of argument error in the sentencing phase of a capital murder case and the disputed argument had nothing to do with the failure of the defendant to testify.

I attach great significance to the statutory and rule reenforcement of the constitutional guarantees against self-incrimination and believe that their violation by a direct reference is plain error and preju-dicially erroneous. If this view was adopted the rule in the prosecution of criminal cases would be clear and this contention of error would be eliminated from future appeals. It would likewise insure that the defendant has the special privilege guaranteed by constitutions, mandated by the legislature and reenforced by Supreme Court rule. The state, defendants and courts would have the benefit of the virtue of certainty and the absence of confusion.

      . We note that in his point relied on, defendant does not mention § 546.270, RSMo.1978, which states:
      If the accused shall not avail himself or herself of his or her right to testify, ... it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place, (emphasis added).

      . The defense attorney’s voir dire included the following:
      So, it’s a much greater standard than in a civil case. For example, one of the consequences of it is the defendant does not have to testify in court. In a civil case—he would not have to testify in a civil case, either—but in a criminal case, your don’t hold that against him and you can’t use that as any evidence against him..-..
      Is there anybody in the courtroom that, if Mr. McKinley does not testify, is there anyone who feels that they would hold that against him and take that as evidence against him in this trial; is there anyone that feels that way?

      . It is important to note the distinction between harmless error and plain error in a criminal case, and how an appellate court approaches the review of each. In a harmless error case, defendant properly preserves his point. On appeal, the state is confronted with the presumption that the error was prejudicial. State v. Howard, 601 S.W.2d 308 (Mo.App.1980). The state has the burden of proving beyond a reasonable doubt that the error was harmless. State v. Miller, 650 S.W.2d 619, 621 (Mo. banc 1983).
      In a plain error case, the alleged error is defectively preserved or not preserved at all. However, the court still may consider errors affecting substantial rights when it deems that manifest injustice or miscarriage of justice has resulted. Before applying the plain error rule, the court must find a "sound, substantial manifestation” and a “strong, clear showing" that injustice will result, and the appellant has the burden of proving that the error amounted to manifest injustice or miscarriage of justice. State v. Hurtt, 509 S.W.2d 14, 15 (Mo.1974). Thus, there is a substantial difference between harmless error and plain error both in the burden of proof and the standard of appellate review.
      The United States Supreme Court recognizes that constitutional error may be harmless in certain situations. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Our courts follow the same rule. State v. Miller, 650 S.W.2d at 621. Given that properly preserved constitutional error can be harmless error, it follows that unpreserved constitutional error does not mandate invocation of the plain error rule in every case.

      . We are aware of the case of State v. Gray, 503 S.W.2d 457 (Mo.App.1973). A hurried reading of the broad language used therein might lead one to conclude that all direct references, whether preserved or not, necessitate a new trial. However, a careful reading of Gray reveals that the trial judge himself was the offender, not the prosecutor. The defendant was appearing pro se and failed to object when the court said, "Will you be sworn, sir; are you going to testify?” In addition, no instruction on the issue was given by the court, as was done in the present case. Gray does not control here. Furthermore, Gray predates the Missouri Supreme Court cases of State v. Hurtt, 509 S.W.2d 14 (Mo.1974); State v. Murphy, 592 S.W.2d 727 (Mo.1979); State v. Newlon, 627 S.W.2d 606 (Mo. banc 1982); State v. Zagorski, 632 S.W.2d 475 (Mo. banc 1982); State v. Miller, 650 S.W.2d 619, (Mo. banc 1983).


author: NUGENT, Judge.

text:
    Jack R. GRATE, Respondent, v. Leora L. RICHARDS, Appellant.
    No. WD 35073.
    Missouri Court of Appeals, Western District.
    Nov. 13, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Dec. 26, 1984.
    Application for Transfer Sustained Feb. 26, 1985.
    Case Retransferred May 21, 1985.
    Court of Appeals Opinion Readopted June 4, 1985.

      Rufus Burrus (argued), W. Raleigh Gough, Independence, for appellant.
    Roger W. Calton, Kansas City, for respondent.
    Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
   NUGENT, Judge.

Leora L. Richards, defendant, appeals from a judgment rendered by the circuit court, quieting title and determining that it is vested in plaintiff and that defendant has no right, title or interest in the subject real estate. We reverse the judgment of the circuit court.

On April 14, 1981, plaintiff, Jack R. Grate, Jr., filed a petition to quiet title to real estate. Plaintiff claims that under a court administrator’s deed dated March 26, 1981, he is the owner of the residential property at 1634 Cypress in Kansas City. Defendant, Leora L. Richards, claims ownership of the property under an unrecorded warranty deed dated January 24, 1981, and has filed a “cross petition” to quiet title in her.

In 1977, Mrs. Richards, a real estate agent, entered into a “contract for deed” with Coy E. Burr and Yvonne Burr for the purchase of the property. The contract provided that Mrs. Richards would purchase the property for $9,736.49 payable in monthly installments, that she would pay the taxes, keep the property insured and that upon paying the full purchase price she would be entitled to a warranty deed for an unencumbered fee simple title. The contract was not dated but the date of the first payment was January 1, 1977. The Burrs had a loan on the property with Blue Valley Savings & Loan, and they arranged with Mrs. Richards that she would pay them and they would pay Blue Valley. Mrs. Richards testified that she did not notify Blue Valley that she had an interest in the property because of her belief that the loan was not assumable and that Blue Valley would have called in the loan. She wanted to get the financing without paying a higher interest rate.

Mrs. Richards made the monthly payments until the contract was paid in full. On November 12, 1980, the balance with Blue Valley was paid off. Mrs. Richards received a release deed dated November 12, 1980, which was recorded December 1, 1980. Mrs. Richards testified that she did not get a warranty deed at that time because Mr. Burr’s wife had died November 14, 1980, and she did not want to “pressure” him for a deed right away. She contacted Mr. Burr in January, 1981, and he gave her a warranty deed dated January 14, 1981. She did not record the deed at that time, and it is still unrecorded.

In September, 1980, Mrs. Richards entered into a rental agreement with Susan and Lesley Carroll by which the Carrolls would rent the property with an option to purchase it at $25,000.

Unknown to Mrs. Richards, on November 17, 1980, Montgomery Ward obtained a default judgment in the amount of $1,242.19 against Mr. and Mrs. Burr on an overdue account. Plaintiff Jack R. Grate’s law firm represented Montgomery Ward. A general execution was issued by the circuit court on January 28, 1981, under which a levy was made on the Burr’s property at 1634 Cypress. Pursuant to the levy, a notice of sale appears to have been published and an execution sale was held on March 24, 1981. Plaintiff purchased the property for $1,700.00.

Before the sale, plaintiff Grate, accompanied by two attorneys from his law office, drove by the property and looked at it through the “windshield.” He did not get out of the car, and he saw nothing indicating the name of any person who lived in the house. He also searched the Jackson County title records and requested a “verbal” ownership and encumbrance report from McDaniel Title Company. Both the records and the “verbal” ownership report showed that the Burrs owned the property.

After the sale, Mr. Grate drove to the property to notify the party in possession that he had purchased it. Mrs. Carroll answered the door and informed him that Mrs. Richards owned the property.

Shortly thereafter,^ plaintiff filed a petition to quiet title. The circuit court issued findings of fact and conclusions of law on April 28, 1983, and judgment was entered in favor of the plaintiff on May 19, 1983. Defendant appeals from the circuit court’s judgment.

Mrs. Richards raises three points on appeal. Her first point is that the sale should be set aside because plaintiff failed to give a direct personal notice to the judgment debtors, the Burrs, as required by Supreme Court Rule 76.17. Her second point is that the sale for $1,700 of property worth $25,-000 should be set aside on the ground of gross inadequacy of consideration. Finally, she asserts that plaintiff was not an “innocent purchaser” because he had actual notice of facts which upon reasonable inquiry would have led to actual notice of Mrs. Richard’s claim of title.

The action below was for equitable relief and accordingly was heard by the court. The scope of our review is set forth in Rule 73.01 and in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976) (en banc), which requires that a “decree or judgment of trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it erroneously declares the law, or it erroneously applies the law.”

Decision on defendant’s first point disposes of this appeal. She contends that the sale of the property to the plaintiff is void because direct personal notice was not given to the judgment debtors, the Burrs, as required by the Rules of Civil Procedure. Rule 76.17 provides as follows:

Notice to Person Whose Land is Levied Upon
At least twenty days before the sale of land the judgment creditor shall serve a notice of sale on the person whose land is levied upon by personal service or by mailing a copy thereof to his last known address.
Service may be shown by acknowledgement of receipt, written return of service, or by affidavit or by written certificate .of counsel making such mailing.
Proof of service shall be filed in the court.

This rule, adopted in 1980, effective January 1,1981, replaces former rules 76.39 and 76.40 which required notice only where the real estate to be sold was situated in a county other than the owner’s county of residence. Rule 76.17 requires notice in all execution sales of land.

Rule 93.01 provides:

The institution, prosecution, trial and determination of civil actions to establish evidence of and to perfect land titles shall conform in all respects to rules of procedure covering ordinary civil actions and service of process shall be had in the same manner as provided in Rule 54. (Emphasis added.)

The obvious purpose of Rule 76.17 is to provide maximum assurance that no landowner’s property will be sold out from under him without such notice of sale as would ordinarily enable him to take action to protect his interests. See Mahen v. Tavern Rock, Inc., 327 Mo. 391, 37 S.W.2d 562, 564 (1931).

The rule provides for the following modes of proof of notice: “Service may be shown by acknowledgement of receipt, written return of service, or by affidavit or by written certificate of counsel making such mailing.” (Emphasis added.) It further requires that “proof of service shall be filed with the court.” (Emphasis added.) The rule is mandatory and permits no less than full compliance. Not only does the language of the rule mandate strict compliance with the proof of notice provisions, the importance of the proceeding to the landowner requires it. The distressful situations created by such sales are all too familiar to the courts. Rule 76.17 is designed to eliminate them and the unnecessary litigation they generate.

We have found no case construing and applying the recently promulgated notice requirements of Rule 76.17. In analogous mechanic lien cases, however, Missouri courts have consistently held that where the statute requires notice to owners for the creation of a mechanic’s lien the burden of providing notice and the proof of notice falls upon the plaintiff. R.J. Stephens Drywall and Painting Co. v. Taylor-Morley-Simon, Inc., 628 S.W.2d 374, 375 (Mo.App.1982); Rufkahr Construction Co. v. Weber, 658 S.W.2d 489, 500 (Mo.App.1983) (Plaintiff “bears the burden of demonstrating compliance with the notice requirements”); Mitchell Engineering Co. v. Summit Realty Co. Inc., 647 S.W.2d 130, 138 (Mo.App.1982) (“The notice of a mechanic’s lien is an essential element of the enforcement of a lien and a lien claimant bears the burden of proving notice”). See also Structo Corp. v. Leverage Investment Enterprises, Ltd., 613 S.W.2d 197, 201 (Mo.App.1981); Bremer v. Mohr, 478 S.W.2d 14, 18 (Mo.App.1972) (“burden is on the plaintiff to prove substantial compliance with each essential statutory requirement”). Hertel Electric Co. Inc. v. Gabriel, 292 S.W.2d 95, 101 (Mo.App.1956). The same principles apply to the case at hand. Plaintiff had the burden of showing that he did in fact comply with Rule 76.17.

In the instant case, neither the pleadings nor the evidence established that the type of notice required by Rule 76.17 was in fact given to the judgment debtors, the Burrs, or to “the person whose land [was] levied upon.” Other than his testimony at trial, plaintiff offered no proof that notice was ever sent to or served upon the Burrs or anyone else. Plaintiff testified as to his “understanding” that the Burrs got “substantially more notice” than the published notice, that someone in his office had mailed notices to the Burrs. No evidence was offered regarding the date upon which any such notice was sent or received. No copy of the notice was offered. Plaintiff adduced no evidence of acknowledgement of receipt, written return of service, or affidavit or certificate of counsel to show service of notice of sale as required by Rule 76.17. Without the type of proof required to show that notice of sale was given to the person whose land was levied upon in full compliance with Rule 76.17, plaintiff failed to carry his burden. The circuit court erred in not requiring plaintiff to present proof of compliance with Rule 76.17. The sale must be set aside as void and plaintiff's title to the property fails.

This court has authority to enter the judgment that should have been entered by the trial court. City-Wide Asphalt Co., Inc. v. City of Independence, 546 S.W.2d 493, 498 (Mo.App.1976); Boyd v. Boone Management, Inc., 676 S.W.2d 24 (Mo.Ct.App.W.D.1984). Accordingly, we may set aside the judgment in favor of plaintiff entered by the trial court and enter judgment for defendant on plaintiff’s petition and for defendant on her “cross petition” to quiet title in her.

For the foregoing reasons, we reverse the judgment of the circuit court and enter judgment for the defendant, Mrs. Richards, on plaintiffs petition and on Mrs. Richards’ “cross petition”, all at plaintiff’s cost.

All concur.

      . The only reference to publication in the record appears in the recital in the court administrator’s deed showing “at least twenty days’ notice of the time and place of sale, and the real estate to be sold ... as the law directs, by advertisement in the Examiner a newspaper published daily ... in Jackson County_” Defendants do not dispute that publication was made pursuant to Supreme Court Rule 76.16.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Danny Ray HAYDEN, Appellant.
    No. 48360.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Jan. 22, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 1985.
    Application to Transfer Denied May 29, 1985.
    David E. Woods, Regional Public Defender, Poplar Bluff, for appellant.
    Briney Welborn, Prosecuting Atty., Bloomfield, for respondent.
   ORDER

PER CURIAM:

Defendant-appellant, Danny Ray Hayden, appeals his jury conviction of attempted incest under § 564.011 RSMo 1978, a class A misdemeanor. The jury assessed punishment at nine months imprisonment in the county jail. This appeal follows but no jurisprudential purpose would be served by a written opinion. Hence the judgment of the trial court is affirmed in accordance with Rule 30.25(b).


author: CLEMENS, Senior Judge.

text:
    STATE of Missouri, Respondent, v. John KELLY, Appellant.
    No. 48553.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 22, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.

      Debra Buie Arnold, St. Louis, for appellant.
    Michael H. Finkelstein, Jefferson City, for respondent.
   CLEMENS, Senior Judge.

Indicted for raping his eleven-year-old foster daughter, a jury found defendant guilty. The trial court sentenced him to 15 years in prison.

The victim had promptly reported the assault to her mother who took her to a hospital. There medical examination showed the girl had been “traumatically sexually abused”. Defendant testified, denying the rape.

Here defendant claims reversible error in the trial court’s overruling his objection to the state’s closing jury argument.

The prosecutor had not mentioned the victim’s six-year-old sister in the opening segment of the state’s closing argument. Defendant now contends the state in its closing argument drew an adverse inference from defendant’s failure to call named witnesses who, defendant contends, were equally available to the state.

The state responds its now challenged argument was retaliatory — in response to a subject first brought up in defendant’s pre-ceeding closing argument. We recite the essence of the two arguments.

In the opening part of its jury argument the prosecutor had made no comment about the six endorsed but non-testifying witnesses. Then in defendant’s jury argument his counsel broached the subject, saying:

“I expect [the prosecutor] ... to spend considerable time arguing about witnesses that should have been called, (naming six). The prosecutor could have called any one of those witnesses.... Why didn’t she bring in (victim’s six-year-old sister who slept in the adjoining bed) to tell you? (She) is supposedly, if you believe [the victim], she was being sexually assaulted on this bed every day and her sister was in the bed next to her. Why didn’t [the prosecutor] call her in to tell you what she had to say? The prosecutor has the burden of proof and could have brought that child in.”

To this the state responded:

“... [Defense counsel] could have brought her (victim’s sister) in for that matter. If [defendant] knows this didn’t happen and that his daughter was in the bed next to it when it was going on, and didn’t hear it, why didn’t [defense counsel] subpoena the child and bring the child in? [Defense counsel] has the right to subpoena anyone into court, including (the kid sister). If she thought the child could qualify and could say something to support his testimony. So don’t let that be a false issue in this case.”

Thus the record shows the state’s now-challenged argument was in response to the prior defense argument. A defendant may not take advantage of self-invited error nor complain about matters he himself brings into the case. State v. Miller, 593 S.W.2d 898 (Mo.App.1980); Richardson v. State, 617 S.W.2d 76[2-4] (Mo.App.1981).

Further, as here, a defendant may not provoke a reply to his own argument and then claim error. State v. Kirksey, 528 S.W.2d 536[8-10] (Mo.App.1975). And, trial courts have discretion in permitting retaliatory arguments and refusing mistrials based thereon. State v. Rainwater, 602 S.W.2d 233[8-10] (Mo.App.1980).

Affirmed.

CRIST, P.J., and CRANDALL, J., concur.


author: TURNAGE, Chief Judge.

text:
    MO-KAN AIRPORT PASSENGER SERVICE, INC., Appellant, v. CITY OF KANSAS CITY, Missouri, Respondent.
    No. WD 35455.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Application to Transfer Denied May 29, 1985.

      Charles C. Shafer, III, Charles C. Shafer, Jr., Kansas City, for appellant.
    Richard N. Ward, City Atty., Nordahl E. Holte and Dan G. Jackson, III, Asst. City Attys., Kansas City, for respondent.
    Before KENNEDY, P.J., TURNAGE, C.J., and DIXON, J.
   TURNAGE, Chief Judge.

Mo-Kan Airport Passenger Service, Inc. applied for the renewal of six livery permits. After a hearing, the administrator of taxicabs denied the application. On appeal, the circuit court affirmed the denial.

On this appeal, Mo-Kan contends that the administrator of taxicabs was biased and prejudiced against Mo-Kan and did not accord it a fair hearing, the trial court erred in denying it a continuance, and the administrator’s decision was not supported by competent and substantial evidence. Affirmed.

Mo-Kan, the holder of six livery permits issued by the City of Kansas City, applied for their renewal. The city ordinance regulating livery service defines a livery vehicle as: “A public Passenger vehicle with driver furnished, for hire only by written agreement at a charge per hour fixed in advance.” The ordinance further provides that such vehicles are to be for hire only for continuous periods of two hours or more and they are not to cruise in search of patronage nor to park at any public place awaiting patronage which is not prearranged. Another ordinance provides that the driver of a livery vehicle shall not solicit passengers for transportation on any public way or at any public airport.

The renewal application and information submitted by Robert Baker, the president of Mo-Kan, indicated that Mo-Kan operated its livery service based on a fee schedule computed on a zone concept, based on distance traveled; and not on a per hour basis. At the hearing, Baker testified that his method of calculating fees was based on the distance of various points from Kansas City International Airport. He added that his service was primarily a non-scheduled service to and from the airport, but that he also provided service to churches and other civic organizations upon request.

Evidence introduced at the hearing revealed that Baker had been convicted of eleven ordinance violations for soliciting passengers in his livery vehicles.

The administrator’s findings of fact included Baker’s ordinance violations, and that Baker’s fee schedule for using his livery vehicles was not based on a per hour rate, but was based on the length of travel between various points and the airport.

The administrator stated in her conclusions of law that after the hearing, she went to Crown Center Hotel to observe livery and taxicab activity and was solicited by a Mo-Kan driver for a discounted fare trip to the airport. She concluded that this simply reinforced the evidence presented at the hearing regarding Mo-Kan’s livery service operation.

Mo-Kan first contends that it did not receive a fair hearing before the administrator because she was biased and prejudiced, in that she was the supervisor of the special investigator who had investigated the activity of Mo-Kan prior to the hearing, and who then presented evidence on the City’s behalf at the hearing. Mo-Kan further charges that the administrator abandoned her role as an impartial arbitrator and failed to give it a fair hearing.

The special investigator’s participation in the hearing, even though he was employed by the City and worked under the administrator, is analogous to cases involving termination of teachers and the presentation of evidence by the school board’s attorney. In Harrisburg R-VIII School District v. O’Brian, 540 S.W.2d 945, 950[4] (Mo.App.1976), this court held that the active participation on behalf of the board of education by its regular counsel did not render the hearing unfair. In that case, the counsel was hired by the board and was responsible to it. In Ross v. Robb, 662 S.W.2d 257, 260[5-7] (Mo. banc 1983), the court held that the active participation of the school board’s attorney in the conduct of the hearing does not deprive one of a fair trial, absent a showing in the record that the board heard the evidence with an unbendable or preconceived notion. In this case, the special investigator was responsible to the administrator and presented evidence to the administrator at the hearing. Those facts alone did not render the hearing unfair, and the record does not indicate that the administrator heard the evidence with an unbendable or preconceived notion.

Mo-Kan further contends that the hearing was unfair because the administrator had prior knowledge of the case because the special investigator had investigated Mo-Kan prior to the hearing and had talked with the administrator about Mo-Kan. Again, this is analogous to the position the school board occupies in termination hearings. The board, of necessity, is informed of the charges prior to the commencement of termination proceedings. In those cases, the board is informed of certain facts in order to make an informed decision on the commencement of the termination procedure. The record does not reflect that the administrator in this case played any different role. In Ross, the court held that an administrative body which initiates a charge and then tries such charge does not alone vitiate the proceedings, if judicial review is provided. 662 S.W.2d at 260[5-7]. In this case, an ordinance does provide for judicial review.

Mo-Kan alleges that at one point in the hearing, the special investigator stated that he wanted to consult with the administrator before he continued the presentation of his case. However, Mo-Kan fails to point out that the administrator declined the request and the hearing continued without any consultation. A review of the record shows that the administrator conducted the hearing fairly, reasonably, and properly.

Mo-Kan also attacks the propriety of the administrator’s trip to Crown Center to observe the taxicab and livery service activities. In United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515, 530, 66 S.Ct. 687, 695, 90 L.Ed. 821 (1946), the court stated that the mere fact that an administrative body has looked beyond the record proper does not invalidate its action unless substantial prejudice is shown to result. Here, the administrator obviously sought to confirm the evidence that Mo-Kan was in fact soliciting passengers in violation of the ordinance regulating the type of service Mo-Kan was authorized to offer to the public. While the administrator would have been better advised to have refrained from undertaking a fact-finding mission, Mo-Kan fails to demonstrate substantial prejudice. The record showed that Mo-Kan had eleven convictions for soliciting passengers while it held a livery permit. Not only was that evidence in the record, but Baker testified that he had pleaded guilty to soliciting passengers. Thus, the administrator’s personal fact-finding mission added nothing to the record and did not result in substantial prejudice.

Mo-Kan next contends that the trial court erred by denying it a continuance which it requested in order to conduct discovery. At the time of the request, the case had been pending in circuit court for fifteen and one-half months, and Mo-Kan had made no effort to conduct discovery. The trial court is vested with a broad discretion in controlling the docket, the progress of litigation, and the grant or refusal of a continuance. Its action will not be set aside unless the discretion vested in it is shown to be abused by arbitrary or capricious exercise. Commerce Bank of Mexico, N.A. v. Davidson, 667 S.W.2d 474, 476[1, 2] (Mo.App.1984). No abuse of discretion is shown.

Mo-Kan finally contends that the decision is not supported by competent and substantial evidence. The recital of evidence heretofore set out shows that Baker admitted that he based his fees on a zone charge, rather than an hourly charge as required under the livery ordinance. Baker thus admitted he was not in fact operating a livery service and did not intend to do so in the future, but was in fact operating as a taxi service. He neither held nor applied for a taxi permit. This alone was sufficient to support the denial of the permits. Baker’s admission that he had pleaded guilty to soliciting passengers in violation of his permit further demonstrated that Mo-Kan had used its permits contrary to the ordinance and was thus not entitled to their renewal.

The judgment is affirmed.

All concur.


text:
    Willis CLARK, Appellant, v. STATE of Missouri, Respondent.
    No. WD 35696.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Application to Transfer Denied May 29, 1985.
    William E. Shull, Kearney, for appellant.
    John Ashcroft, Atty. Gen., Thomas Carter, II, Asst. Atty. Gen., Jefferson City, for respondent.

      Before LOWENSTEIN, P.J., and NU-GENT and BERREY, JJ.
   ORDER

PER CURIAM:

Appeal from denial of Rule 27.26 motion to vacate conviction for first degree murder, and sentence of life imprisonment. See 592 S.W.2d 709.

Judgment affirmed. Rule 84.16(b).


text:
    CITY OF KANSAS CITY, Missouri, Respondent, v. Stephen P. TAYLER, Appellant.
    No. WD 35823.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Application to Transfer Denied May 29, 1985.
    L.R. Magee, Hines & Magee, Kansas City, for appellant.
    Richard N. Ward, City Atty., Kansas City, George L. Sharp, City Pros., Edward B. Rucker, Asst. City Pros., for respondent.

      Before KENNEDY, P.J., TURNAGE, C.J., and DIXON, J.
   TURNAGE, Chief Judge.

Stephen Tayler was found guilty in municipal court of keeping, maintaining, and pasturing a horse within 200 feet of the residence of a neighbor. On trial de novo, the circuit court found Tayler guilty and fined him $500 and sentenced him to 180 days at the municipal farm. The court suspended the confinement and placed Tay-ler on probation.

Tayler contends that his conviction cannot stand because his property was zoned for agricultural use, and an ordinance that requires him to keep his horse 200 feet from other residences is invalid, constitutes a taking of his land, and conflicts with state statutes dealing with fences. Affirmed.

At trial, Tayler admitted that he owned land adjacent to land owned by Francis Johnson. Tayler does not dispute that the distance from Johnson’s house to the fence dividing the two properties is 47'6", and that Tayler’s horse has free run of the Tayler property up to this fence.

The City presented evidence that Tay-ler’s horse is able to reach over the fence to eat grass and rose bushes on the Johnson property. The droppings that accumulate near the fence between the two properties attract flies and create odor. At one time, Tayler kept a pig within 200 feet of the Johnson house, which caused similar fly and odor problems.

Further, Tayler does not dispute that the City has a general ordinance prohibiting the keeping, maintaining, and pasturing of livestock, including horses and swine, within 200 feet of the nearest portion of a residence other than that of the keeper.

With no dispute on the facts, Tayler contends that because his property is zoned for agricultural use, and this zoning allows him to breed and raise livestock on his land, the ordinance requiring him to keep animals 200 feet from the Johnson residence is invalid as applied to him. Tayler’s argument is answered by § 89.130, RSMo 1978 which provides:

Wherever the regulations made under authority of sections 89.010 to 89.140 require a greater width or size of yards, courts, or other open spaces, or require a lower height of building or less number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required in any other statute or local ordinance or regulation, the provisions of the regulations made under authority of sections 89.010 to 89.140 shall govern. Wherever the provisions of any other statute or local ordinance or regulation require a greater width or size of yards, courts, or other open spaces, or require a lower height of building or a less number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required by the regulations made under authority of sections 89.010 to 89.140, the provisions of such statute or local ordinance or regulation shall govern.

That section applies to all cities in the state. The state has clearly granted to the cities the authority to enact ordinances which impose higher standards than are required by zoning ordinances. Thus, the provisions of a zoning ordinance are not conclusive, and other ordinances may impose higher standards. In this case, the City has zoned Tayler’s land for agriculture, which allows him to keep livestock on his land; but by another ordinance, the City requires the livestock to be kept 200 feet from other residences. Under § 89.-130, the ordinance requiring animals to be kept 200 feet from other residences imposes a higher standard, and thus prevails over the zoning ordinance.

Tayler next contends that because the effect of the City’s ordinance is to deprive him of the right to allow livestock up to his fence line, this constitutes a taking of the part of his property which lies within 200 feet of the Johnson house. It has long been settled in this state that the valid exercise of the police power is not a taking of private property for public use. State ex rel. Doniphan Telephone Co. v. Public Service Commission, 869 S.W.2d 572, 575[4, 5] (Mo.1963). The ordinance constituted a valid exercise of the City’s police power. The evidence in this case confirms the necessity of such ordinances in light of the fly and odor problems which occur when animals are kept within close proximity to residences. The ordinance as applied to Tayler did not constitute the taking of Tayler’s property for either public or private use, and did not constitute inverse condemnation.

Tayler finally contends that the ordinance conflicts with §§ 270.010, 270.060, 272.010, and 272.020, RSMo 1978. These sections all concern fences and enclosures. The ordinance does not contain any provisions contrary to those statutes, and thus does not conflict with them.

The judgment is affirmed.

All concur.


author: LOWENSTEIN, Presiding Judge.

text:
    In the Interest of R.K.W.
    No. WD 35885.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Application to Transfer Denied May 29, 1985.
    Leonard K. Breon, Breon & Leffler, War-rensburg, for appellant.
    Joseph P. Dandurand, Rahm, Rahm & Dandurand, P.C., Warrensburg, for respondent.
    Before LOWENSTEIN, P.J., and NU-GENT and BERREY, JJ.
   LOWENSTEIN, Presiding Judge.

Following amendment in the notice, the parties on appeal of this child custody case are as follows: the minor child (R.K.W.) through Francis Marr (who had been legal custodian) is appellant, while respondents, the Pulliams, are the couple to whom the child was subsequently transferred and whom he has been with since March 23, 1984. Rights of the natural parents were terminated in the midst of these custody shifts.

A brief overview is here in order. The child is now four (born April 13, 1981). Since age 4 months he had been with Mrs. Marr. In January 1984, transfer of custody was made from Marr to the Division of Family Services (DFS). In March 1984, transfer of custody was to the Pulliams. Prior to this appeal the Pulliams have never been in court, and for that matter, Marr was not in court until after the March transfer to the Pulliams.

Although the best interest of the child is the paramount question, unfortunately, as between the Marrs and the Pulliams, neither of which has been at fault, one family must end up broken hearted over this matter.

The following facts are taken from the legal file and the transcript of the hearing of March 28th which was requested by the Marrs to reconsider the March 14th change of custody order. In this opinion “JO” refers to the county juvenile officer and “GAL” refers to R.K.W.’s guardian ad li-tem.

April 1981 — Child born.

August, 1981 — Mother takes child to home of Francis Marr and her parents.

January 26, 1982 — JO files petition to get custody since the mother left child at the house of Marr and her parents.

February 8, 1982 — Francis Marr divorced.

March 2,1982 — Court order that in the best interest of child to be with Francis, under supervision of JO and DFS.

March 12, 1982 — Terry Marr and Francis marry.

September 13, 1983 — Court order continuing custody in accordance with previous order.

October 26, 1983 — JO petition to terminate parental rights (child now age 2). Petition states custody with Francis Marr. Asked court “that legal custody of said child be transferred to Terry and Francis Marr for purpose of adoption.”

January 6, 1984 — DFS letter to court saying natural mother wants Marrs to adopt — home study to be made on Marrs.

January 10, 1984 — Order stating Francis has had child since age 4 months. Natural parents terminated. Court transferred child to DFS to place with “foster family” for adoption. Court wants two more home studies submitted. (Hearing attended only by JO and GAL) — deputy JO told judge “prospective adoptive parents and child in lobby ... if the judge should need them.”

January 24, 1984 — DFS recommends Marrs for adoption, with some reservations, and notes the child regards Marrs as parents. Two other studies submitted for consideration.

January 27, 1984 — Report on Marrs to the court. DFS had noted Francis had been reported on the hotline for neglect while babysitting. Reports were investigated and dismissed. DFS also stated Terry played in band on some nights.

March 14, 1984 — Court order transferring child from Marr’s foster placement to Pulliam for future adoption. No notice to Marr — she was not present. No hearing had been conducted.

March 16, 1984 — DFS tells Marr’s court has removed them.

March 23, 1984 — Child taken to Pulliams.

March 27, 1984 — Marrs file motion to restore custody to them and set aside order of March 14, 1984.

March 28, 1984 — After hearing at which GAL present court reaffirms 3/14 order as in best interest of child.

April 23, 1984 — This appeal is filed.

Letters and motions in the court file clearly indicate a longstanding interest by the Marrs to adopt. By the orders of January 10th and March 14th the Pulliams now are in custody prepatory to adoption.

The procedural history of this case is complicated by the court’s apparent confusion as to Francis Marr’s true status. The March 14 order refers to the child’s “foster placement” when in fact the Marrs had never been licensed as a foster family.

The March 28th hearing basically allowed the Marrs to present evidence that it would be in the child’s best interest to return his custody to them, and then allow them to proceed toward adoption. The natural mother, the grandfather and two other disinterested persons testified in favor of the Marrs. Francis Marr acknowledged she had received no public assistance for the child. She said DFS had never complained about her keeping the boy, and had asked her and her husband to become foster parents. She had told DFS they wanted to adopt and DFS had been supportive. She was not told of the March 14 hearing and had been led to believe by DFS their application for adoption had been sent in and was before the judge. On March 16 she was told the child was to be removed, and she later learned no petition for their adoption had ever been filed. Her husband Terry testified that he had been in contempt for non-payment of child support to his children, but that he had paid the $2700 due and now had regular employment as well as working part-time at night. At the time of the hearing they were living with his mother.

The DFS worker, Murray, had worked on this case for eight months. She said the court had requested three home studies which she filed in the latter part of January. She said there was a strong attachment between the child and the Marrs and the child considered them as “psychological parents and any change would be a real disruption for him.” She recommended that the Marrs be favorably considered as an “adoptive resource” for the child. The worker said it was now difficult for her to make a recommendation since the child was doing well in the new home. He had been in the new home since March 23rd. She had not seen him in the new home. She felt he would do fine in either place.

The court on March 28 told the Marrs that they had not been replaced because they had done something wrong but that the new home would be better. The court told the Marrs the two factors that had worked against them were the fact the natural mother knew their whereabouts and Terry’s delinquent support of his children.

Where custody or a change arises within the context of dissolution, the criteria for determination are expressed in § 452.375 (Supp.1982). In § 452.380 temporary custody may be awarded after a hearing. Custody proceedings are to have priority, § 452.395. A court may order the deputy JO or welfare office to exercise continuing jurisdiction over the case, § 452.405. To effectuate a change the judge must act upon evidence adduced, and must conduct a hearing and act upon presentation of facts from which it may be determined whether a change would be in the best interests of the child. Riley v. Riley, 643 S.W.2d 298, 300 (Mo.App.1982). See also Section 452.410. As pointed out in Leimer v. Leimer, 670 S.W.2d 571, 573 (Mo.App.1984), a change of custody between the parents was set aside as not being supported by substantial evidence. Rule 73.01. The Leimer court noted the record was “nearly devoid of evidence that would bear on determining the children’s best interests.” Id. at 573 (footnote omitted). As a further caution the eastern district said it was unwise to transfer custody frequently and even at all unless a preponderance of the evidence so required. Id. at 574.

Also under the Uniform Custody Jurisdiction Act, § 452.440 et seq., there are provisions for persons having physical custody or custody rights to be given notice and to be made a party. Section 452.485.

If a change of custody following a marriage requires a hearing and reception of evidence, so too should there be such a requirement in a case like this one where custody under court order has been granted to a person. The best interest of the child can only be determined after receiving evidence. Here there was no hearing, no evidence, no record to support a change from Marr to DFS and ultimately to the Pulliams. Fundamental fairness would demand, if nothing else, notice and hearing to one under lawful custody with intent to adopt the child in their home. Also analogous to this situation is the Comment to Rule 120.01 dealing with appeals in juvenile detention matters, which says: “This rule is not intended to suggest that without a hearing the court may modify a judgment so as to impose additional restraints upon the juvenile or upon the custodian, or to deprive the custodian of custody, or to commit the juvenile to the division of youth services.”

The Marrs did not have a “Foster Home” as described in § 210.481 et seq. No license was applied for by the Marrs or issued by DFS to operate a foster home under § 210.486. None of the previous orders here properly denominated the character of the placement as being in a foster home run by the Marrs. The foster care law requires a review of each placement every six months, §§ 210.710 and .730; a “dispositional hearing” eighteen months after initial placement, § 210.720. The time table in this case appears as if compliance with this law was being attempted. However, sections 210.760(3) and (4) require a minimum of five days notice (in writing and containing the reasons) to the foster parents before removing a child.

The January 10th order seemed to contemplate foster care placement by DFS after the award, but that was never done. Foster parents have physical custody but DFS has legal custody. Matter of Trapp, 593 S.W.2d 193, 204-05 (Mo. banc 1980). At no time before or after January 10th was the custody of the Marrs under or in compliance with the foster care laws.

This case stands for the proposition that without a hearing and without a record, the judgment of the court which took custody from the Marrs cannot stand. Cf. Matter of Williams, 672 S.W.2d 394, 396 (Mo.App. banc 1984). The case of Higgins v. Missouri Division of Family Services, 580 S.W.2d 300 (Mo. banc 1979) (Seiler dissenting), is not factually close enough to this case to provide authority to affirm the trial court’s actions. There the issue was whether a writ of habeas corpus was the remedy to block a transfer by DFS from the foster parents to another placement. The supreme court held since DFS had obtained temporary custody under court order and since it still had the child under the only order issued by the court, habeas was not available as a remedy to the dispossessed foster parents. In the case at bar custody originally in DFS was transferred to Marr. Rather than a transfer by the legal custodian DFS to another as in Higgins, here is involved an ex parte transfer from a longstanding and confirmed custodian to DFS and then to still others without benefit of notice or hearing. The only factual similarity here to Higgins is mentioned in the dissent which, while admitting the majority’s disposition is “true, technically speaking,” went on to say at page 302:

The child has yet to have any hearing on what is in her best interests. The child was in the lawful custody of the Higgins family, placed there by the division. It is claimed (and we do not know it to be otherwise) that the Higgins family made known, early and on numerous occasions, their desire to adopt the child. They took care of the child for the first ten months of her life. There is an offer of substantial evidence in the file that the Higgins were good parents, that the child was thriving with them, and that it was detrimental to the child for her to be removed from the Higgins family. There really is no claim by respondents to the contrary.
Yet with only scant notice and with no pretense of a hearing or consideration by any impartial arbiter as to whether to do so was in the best interests of the child, the child was removed from Mr. and Mrs. Higgins and transferred to a new family.

As stated earlier, Missouri does have a Foster Care Code, § 210.481 (Supp.1982), but nothing outlines the termination procedure of persons such as the Marrs. The legislature may very well wish to look at Smith v. Organization of Foster Families for Equality and Reform (OFFER), 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977). A foster family group attacked as unconstitutional the procedures in New York for the removal of children from foster homes in which they had resided a year or more.

The state required 10 days written notice of a proposed removal, and the foster parent could then request a conference with the Social Services Department to protest the removal. If the child was still removed, the foster parent could appeal to the state agency, with the resultant determination subject to judicial review. If the child had been in foster care for more than 18 months, the foster parent may obtain preremoval judicial review of an agency decision.

The Supreme Court declined to directly answer the difficult question of whether a foster parent has a constitutionally protected liberty interest; instead the court merely held that the New York procedures are adequate to protect whatever liberty interest a foster parent may have.

Federal courts in Georgia and Indiana have since applied the Smith v. OFFER case to their respective state procedures and found no protected liberty interest in the foster care situations considered. Drummond v. Fulton County Department of Family & Children’s Services, 563 F.2d 1200 (5th Cir.1977); Kyees v. County Department of Public Welfare of Tippecanoe County, 600 F.2d 693 (7th Cir.1979).

In Goldstein v. Lavine, 100 Misc.2d 126, 418 N.Y.S.2d 845 (Supp.Ct.1979), a New York court also applied Smith v. OFFER and found that “third-party custodians (e.g. foster parents) do have rights for an opportunity to be heard which is derived from the children’s rights to the protection of their best interests.”. Id. at 851. There the state agency refused to verify the foster parents and granted no review of that decision, and then turned around and removed the children without any of the New York procedures, arguing that the failure to recertify effectively mooted the issue of improper removal of the children. This is anologous to the Marr’s case but instead of being “decertified” as a foster parent, she had her status of legal custodian removed without notice or a hearing. The Gold-stein court recertified the foster parents, noting that New York must adopt clearer guidelines for review of decisions to decer-tify foster parents and/or remove foster children. The issue of whether the foster children should be returned was remanded to the state agency since more than two years had passed since the original removal and this warranted a new hearing as to the best interests of the children.

The Pulliams contend Marr did not have standing to bring this appeal under § 211.-261 RSMo 1978. See also Rule 120.01. This statute allows an appeal to the child by a parent, guardian, legal custodian, spouse or next friend. The Pulliams reason since Marr lost custody on January 10, 1984 and didn’t appeal from that order they can’t do anything now. Under these circumstances this reasoning is devoid of merit. The January 10th hearing and order was done without the presence or knowledge of Marr. The March 14th order was accomplished ex parte. To deny standing to protest these orders which are being set aside would present a procedural “Catch 22” which this court will not allow. Goldstein v. Lavine, supra, at 849.

Although Warman v. Warman, 496 S.W.2d 286, 289 (Mo.App.1973) involved the father and grandparents on a motion to modify custody, the grandparents by virtue of the decree became in loco parentis to the child. Any attempt to modify made them aggrieved parties able to appeal. This court noted in language applicable here:

When such third parties have become custodians by virtue of such an order, then they are frequently placed in the position of defending the order on subsequent motions to modify filed by one or the other of the natural parents. (Citation omitted.) To assert that they have no right to litigate the future status of the child would render nugatory the order granting custody.

Warman, supra, at 289.

The Pulliams finally assert the appeal is untimely. Section 211.261 allows 30 days after entry of final judgment for an appeal to be lodged. The Marrs appealed the March 14th order, but filed a motion to restore custody which was finally ruled on March 28th. Since no trial was held on March 14th, the pleading of the Marr’s could hardly be called a motion for new trial, but that is what it was for the purpose of filing an appeal. “The finality of a judgment in a juvenile case is postponed by the timely filing of a motion for new trial.” In Interest of R.L.P., 536 S.W.2d 41, 43 (Mo.App.1976). The March 14th judgment became final when the court ruled on Marr’s motion on March 28th. Marr had 30 days after March 28th to file a notice of appeal. Her appeal filed April 23, 1984 was timely.

Another factor in this case that added to the confusion is the seeming acquiescence to the court’s actions by the Division of Family Services and the guardian ad litem. The Marrs were led to believe everything was running smoothly in the adoption procedure when in fact the rug was being pulled out from under them. Common decency should have prompted DFS to tell the Marrs after January 10th that DFS had custody under court order. Without a placement then being made, the custody after January 10, 1984 by the Marrs was without court authority, leaving for example, their power to seek emergency medical care for the child completely negated.

At oral argument the guardian said that after much thought he decided it was in the child’s best interest to be returned to the Marrs. But he never submitted a written brief, nor made any recommendation back in March when R.K.W. was first removed. As pointed out in In Interest of J.L.H., 647 S.W.2d 852, 861 (Mo.App.1983), “it is imperative that the guardian ad litem investigate and have imput on the perspective of the child’s best interest and this be presented to the trial judge." (Emphasis added.)

Under the standard of review of Rule 73.01(c), and despite the presumption the trial court studied the matter carefully, In Interest of J.L.H., supra, there is just no evidence to support the court’s orders transferring custody from the Marrs to DFS and then to the Pulliams. There is no evidence in any record to support a finding that either of those transfers was in the child’s best interest. Therefore, the orders made in 1984 on January 10th, March 14th and March 28th are voided and the judgments are reversed outright as they pertain to custody. The judgment of January 10, 1984 is affirmed only as to termination of parental rights. Within 48 hours of the receipt of this opinion custody of R.K.W. is to be changed from the Pulliams to the Marrs with the aid and assistance of DFS. This result will return this case to the juvenile court in the status it was just following the October 26th petition asking for custody with both the Marrs for the purposes of adoption. Any ruling on this or any other petition relating to further custody or adoption is to result only from an evidentiary hearing after notice. Costs to be divided between the Marrs and Pul-liams.

All concur.

      . The spelling of the Marr’s first name appears both as "Frances" and "Francis” throughout the case; Francis will be used in this opinion.


text:
    Nola MEADE, Plaintiff, v. CITY OF ST. LOUIS, Defendant.
    No. 48852.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 29, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.
    James D. Edgar, St. Louis, for plaintiff.
    James J. Wilson, City Counselor, David P. Weiss, Asst. City Counselor, St. Louis, for defendant.
   CLEMENS, Senior Judge.

Plaintiff-wife was injured when her husband drove their car through a red stop light at a controlled intersection in St. Louis. The City had a fire station nearby and in front maintained a green warning light at its driveway exit. Plaintiff pleaded this was negligently located by the City.

Plaintiff pleaded her husband mistook the City’s green warning light for the intersection’s traffic light; that he drove past the warning light and then drove through the red intersection light into a right angle collision with another car being properly driven through the intersection.

The City moved to dismiss plaintiff’s petition on the ground it was not insured and that maintaining its green warning light was a governmental function. The trial court so found and dismissed plaintiff’s petition with prejudice; she has appealed.

Here plaintiff contends the trial court erred because the City’s alleged immunity was expressly waived by Section 537.600(2) RSMo. The City responds that placement of its warning light was a governmental function and so it was immune from suit under the cited statute and Section 537.610 RSMo.

We hold the trial court’s summary dismissal of plaintiff’s petition was proper under Bartley v. Spec. School Dist. of St. Louis City, 649 S.W.2d 864 (Mo. banc 1983), dealing with sovereign immunity under the cited statutes. We agree.

In Bartley the court ruled that:

“Section 537.600 states that the doctrine of immunity ... except as modified, abrogated or waived by statute remains in full force and effect ... It must be inferred from the words and the structure of this statutory pronouncement that the legislature intended to reenact sovereign immunity as the rule; for the proposition begins and ends with the independent clause stating that sovereign immunity is in full force and effect. The conclusion reached is that the legislative intent was ... to carve out limited exceptions to a general rule of immunity. Hence, we are bound to hold that statutory provisions that waive sovereign immunity must be strictly construed ...
“The General Assembly’s enactment only waived sovereign immunity as provided in subsections (1) and (2) of Section 537.600 and then only to the extent the public entity has purchased liability insurance for such purposes.”

The court explained:

“In order to recover under a statutory exception, plaintiffs must do so under a construction that is not inconsistent with two propositions: first, that the express waivers of Section 537.600 depend upon the acquisition of insurance; second, that the statute preserves the governmental/proprietary distinction.”

The Bartley court summarized its ruling by declaring that under the cited statutes the only exceptions to the doctrine of sovereign immunity exist when there is liability insurance in effect. Since there was none here the trial court properly dismissed plaintiffs’ petition on the ground of the City’s sovereign immunity.

Affirmed.

DOWD, P.J., and CRANDALL, J., concur.