City of Independence v. Peterson, 24833

• Decision Date: 02 December 1968
• Docket Number: No. 24833,24833
• Citation: 437 S.W.2d 168
• Parties: CITY OF INDEPENDENCE, Missouri, Respondent, v. Gerald D. PETERSON, Appellant.
• Court: Missouri Court of Appeals

Page 168

437 S.W.2d 168

CITY OF INDEPENDENCE, Missouri, Respondent, v. Gerald D. PETERSON, Appellant.

No. 24833.

Kansas City Court of Appeals, Missouri.

Dec. 2, 1968.

Rehearing Denied Feb. 3, 1969.

Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.

John J. Phillips, City Counselor, Independence, for respondent.

JAMES W. BROADDUS, Special Commissioner.

This appeal involves six complaints which were filed in the Municiapl Court of the City of Independence, charging defendant with the violation of certain ordinances of said City. Four of the complaints charged that defendant did unlawfully operate a 1959 Chevrolet vehicle and 'Disobeyed Stop Sign'. The fifth complaint charged defendant with 'careless and heedless driving--by failing to yield right-of-way.' The sixth complaint charged that defendant 'Left scene of accident.'

Defendant was found guilty in the Municipal Court. He appealed to the Circuit Court where, upon a trial de novo, he was again found guilty on all six charges.

In the Circuit Court defendant moved for acquittal on the ground that there were no valid complaints lodged against him.

On defendant's appeal here the sole issue is whether the complaints filed against him are legally sufficient as a basis for his prosecution.

Plaintiff City made no appearance on this appeal and has filed no brief.

Four of these complaints (cases numbered 61941, 61943, 61944 and 61947) charged that defendant 'Disobeyed Stop Sign.'

Our courts have adhered to the general rule that the complaint must specifically allege the facts which amount to the offense defined and forbidden by the ordinance. As we stated in the case of City of St. Joseph v. Miller, Mo.App., 409 S.W.2d 749: 'In the recent case of Kansas City, Missouri v. Franklin, (Mo.App.) 401 S.W.2d 949, 953--954, this court ruled that a charge of violating a city ordinance, even though a civil matter, must allege all of the facts necessary to show such violation; that the charge must allege facts constituting an act prohibited by the ordinance under which the charge is laid.'

It is apparent that these complaints did not specifically allege. facts which constitute the offense forbidden by the ordinance. They do not allege that defendant failed to stop, or that he stopped, but at the wrong place. They do not state what the disobedience consisted of. What they allege is a conclusion of law. A conclusion is merely the 'Expression' of the pleader's 'judgment'. Stebbins v. Mart Drug Co., Mo.App., 344 S.W.2d 302, 304. To say that defendant 'disobeyed stop sign' amounts to no more than the expression of the pleader's judgment. It has been held in many cases that 'the averment of a legal conclusion is not the statement of an issuable fact and is to be treated as no statement at all.' Meyer v. Mulligan, Mo.App., 175 S.W.2d 924, 930.

The fifth complaint (case No. 61948) charged defendant with 'careless and heedless dring--by failing to yield right-of-way.' In the case of City of Raytown v. Roach, Mo.App., 360 S.W.2d 741, this court held that: 'The mere averment that defendant committed the offense of careless and imprudent driving would be no more than a conclusion of law and would not constitute the requisite statement of essential facts constituting the offense charged. See State v. McCloud, Mo.App., 313 S.W.2d 177.' However, the complaint goes further and specifically states that the The sixth complaint (case No. 61949) charged that defendant 'Left scene of accident.' In the recent case of City of Independence v. Kirchoff, Mo.App., 419 S.W.2d 957, this court said: 'The ordinance relating to this offense is as follows: 'The driver of any vehicle involved in an accident * * * shall immediately stop such vehicle at the scene of the accident and by the quickest means of communication available shall notify the police, give them such information as they require and remain at said scene until...