Haymart v. Freiberger, KCD26353
| Decision Date | 13 August 1973 |
| Docket Number | No. KCD26353,KCD26353 |
| Citation | 498 S.W.2d 590 |
| Parties | Mr. and Mrs. Frank HAYMART et al., Respondents, v. Mrs. Ben FREIBERGER, Appellant. |
| Court | Missouri Court of Appeals |
C. E. Hamilton, Jr., Fulton, for appellant.
David Brydon, James C. Swearengen, Graham & Hawkins, Jefferson City, for respondents.
Before DIXON, C.J., and PRITCHARD and SOMERVILLE, JJ.
Mandamus against the County Superintendent of Schools, by a group of parents as next friend of their several children, to require reassignment of the children to other schools under the provisions of Section 167.121, RSMo 1969, V.A.M.S. No issue as to the propriety of the remedy or procedure is raised. The circuit court issued a peremptory writ of mandamus, the Superintendent appeals, and the judgment below is affirmed.
The Superintendent argues that reassignment is an exercise of discretion and, absent arbitrary, capricious or unreasonable exercise of the discretion, the circuit court erred in the issuance of the writ. Undergirding the argument is the premise that the staute invests the County Superintendent with discretion to make or withhold a reassignment.
The statute in pertinent part reads:
Section 167.121, RSMo 1969.
Determination of the existence and scope of discretion under that statutory language is not required, for the parents have accepted the premise and brief and argue the case on the theory that the withholding of the reassignments was arbitrary, capricious and unreasonable and, therefore, subject to mandamus even if discretionary. Likewise, tacitly assumed by the parties is the proposition that propriety of the action is to be measured by the totality of the evidence adduced at the hearing on the writ. No effort is made to separate portions of the evidence as relevant to specified children or their desired reassignment. The facts relating to fourteen children and several schools have been argued in a unitary fashion despite the obvious differences. The facts in that perspective were as follows: the parents and the fourteen children were all residents of the South Callaway R--2 School District in Callaway County, and thus the children would have, in normal course, attended the Mokane School; the request was that the children be reassigned to various schools in the adjacent Fulton School District within the same county.
The Mokane bus route was so arranged that these children were at the extremity of the route. Since the route traveled was reversed night and morning, the round trip for all the involved children was the same. The round trip mileage to the Mokane School was in excess of 45 miles. The average time spent on the bus under normal conditions was 45 to 50 minutes each way. Bad weather would increase the total bus time to as much as three hours. The route of the school bus was such that after the involved children were picked up, the bus returned to the city limits of Fulton before proceeding to the Mokane School. Most of the route was a blacktop and gravel road which was curvy, and most of the route was hilly, which had occasioned some narrow escapes from collision with dump trucks. It was approximately 4 to 7 miles to the Fulton Schools for the children involved as opposed to the greater distance to the Mokane School. The distance to the Mokane School created hardships with respect to the children's participation in extracurricular activities since the Mokane School did not provide transportation for those activities. All of the parents involved indicated a willingness to provide transportation to the Fulton Schools if the Fulton bus routes were not available to them or constituted an impediment to their children attending school in Fulton. The circumstances of the parents indicate that many of them are employed in the Fulton community and would have no difficulty in transporting their children, both for school and extracurricular activities.
The Superintendent testified briefly at the behest of the parents. The substance of her testimony is found in the following:
'MR. BRYDON: All right, let me . . . ask Mrs. Freiberger is it not true that you have refused to reassigned these pupils?
A. Yes, I have.
Q. You have refused to reassign all of the children, . . . Why did you refuse to reassign them?
A. Well, it said the distance and I didn't think it was . . . there would have been enough difference. The bus came to their door and I thought they had . . . and enough things that the vote was 60 to 39 and I didn't think one person...
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...establish a fact which tended to prove a fact in issue or logically render probable the existence of a fact in issue? Haymart v. Freiberger, 498 S.W.2d 590 (Mo.App.1973). Appellant introduced evidence of the Fieser incident in an attempt to show that respondent Conway had arrested him becau......
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State ex rel. Seidl v. Jefferson County Bd. of Ed.
...of the judicial interpretation given "accessibility" by the Missouri Court of Appeals, Kansas City, in the case of Haymart v. Freiberger, 498 S.W.2d 590 (Mo.App.1973). They believed that any school which provided bus transportation was accessible. One board member stated that mileage was no......
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Sturgess v. Guerrant, KCD
...determination made by the Board. This case therefore falls within the discussion by Judge Dixon on behalf of this court in Haymart v. Freiberger, 498 S.W.2d 590, l.c. 593 (Mo.App.1973). That case involved a petition for mandamus in 1972 by parents who sought the reassignment of 14 children ......
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...and irrelevant.' The evidence was not irrelevant since it tended to prove a matter in issue--the defendant's due care. Haymart v. Freiberger, 498 S.W.2d 590 (Mo.App.1973). To violate the hearsay rule the declaration must assert another statement for the truth of the matter stated. State ex ......