Johnston v. Director of Revenue

762 S.W.2d 444, 1988 Mo. App. LEXIS 1542
CourtMissouri Court of Appeals
DecidedNovember 1, 1988
DocketNo. WD 40418
StatusPublished
Cited by9 cases

This text of 762 S.W.2d 444 (Johnston v. Director of Revenue) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnston v. Director of Revenue, 762 S.W.2d 444, 1988 Mo. App. LEXIS 1542 (Mo. Ct. App. 1988).

Opinion

MANFORD, Judge.

This is a direct appeal from a judgment reversing the ruling of the Missouri Director of Revenue, who ordered the posting of a bond or, alternatively, the suspension of respondent’s motor vehicle operator’s license and registration. The judgment is reversed and the cause is remanded to the associate circuit court with specific directions.

Appellant’s sole point on appeal charges, in summary, that the associate circuit court erred in reversing the decision of the Missouri Director of Revenue because the deci[446]*446sion of the Director of Revenue was based upon competent and substantial evidence.

Appellant herein is the Missouri Director of Revenue, hereinafter referred to as the Director. Respondent is Robert Johnston, hereinafter referred to as Johnston.

The pertinent facts are as follows:

On December 31,1986 at about 3:20 p.m., Johnston was operating a motor vehicle northbound on Blue Ridge Boulevard in the City of Raytown, Missouri. By Johnston’s own admission, he was traveling 10-15 miles per hour over the posted speed limit of 40 miles per hour. Another driver, Amy McCoy, exited a private driveway and attempted to make a left turn (southbound) on to Blue Ridge Boulevard. Johnston saw the McCoy vehicle and applied his brakes. He swerved to his left (leaving 117 feet of skid marks on the pavement) and collided with the McCoy vehicle.

An on-scene investigation was conducted and accident reports were filed. These reports are part of the record herein. Johnston admitted his excessive speed to the investigating officer. It is uncontested that at the time of the collision, Johnston was an uninsured driver. McCoy’s vehicle was damaged in the amount of $5,050.00. In addition, McCoy suffered personal injuries.

Johnston filed a Notice of Accident with the Department of Revenue. State Farm Insurance Company made a similar filing on behalf of Amy McCoy. Pursuant to Johnston’s filing of the Notice of Accident, the Director sent Johnston a notice on October 16, 1987 entitled, Notice of Security Requirement or Alternative Right to Request Hearing. This notice contained the determination of security in the sum of $4,314.00 against the property damage sustained by the McCoy vehicle and upon assessment of 40% liability against Johnston.

The premise upon which the foregoing notice was sent is contained within the notice itself and reads, “The Safety Responsibility Unit has determined that there is a reasonable possibility of a money judgment being rendered against you as a result of said motor vehicle accident.” This notice and the amount assessed as security are authorized by § 303.030, RSMo 1986.1 Johnston requested a hearing, within the time prescribed, before the Director. A hearing was set for December 1, 1987, at which Johnston appeared. Johnston offered only his affidavit, which reads as follows:

Robert E. Johnston, of lawful age, being duly sworn upon his oath states:
That on December 31, 1986 at approximately 3:20 p.m. he was involved in a vehicular accident with the vehicle of Amy J. McCoy on Blue Ridge Blvd. near 69th Street Terrace.
That at said time he was operating his vehicle north bound when he crested the top of a hill about 100 to 150 yards north of the traffic light at Gregory and Blue Ridge Cutoff. That as he came over the top of the hill a small gold car pulled out from the Stadium Honda driveway in an easterly direction intending to turn left in front of his car to go south. That as the car pulled out in front of him he changed lanes in an effort to avoid striking the car that had pulled out into the four lane roadway and the gold car stopped in his lane of traffic. That he applied his brakes and the road was covered with sand and that he slid on the sand into the side of the stopped car that had pulled out from the private driveway in front of him.
That the McCoy vehicle was insured by the State Farm Mutual Automobile Insurance Company upon whom the affiant made a claim. That the Insurance Company made the independent decision that their insured, Amy McCoy, was 70% to blame for the collision and thereafter paid the affiant 70% of his damages.
Thereafter State Farm made a demand upon the affiant for the payment of $1900.00, 30% of the McCoy damage. Copies of correspondence reflecting these facts are attached. That the determination by the Insurance Company of [447]*447the percentage of liability is binding upon the parties and that the affiant, if liable at all, is not liable for more than 30% of the damage.
Furthere (sic) affiant sayeth naught.

On December 15, 1987, the Hearing Officer entered Findings of Fact, Conclusions of Law and Decision. The pertinent portions of those findings, conclusions and the decision were: Johnston traveled northbound on Blue Ridge Boulevard at a speed of 50-55 m.p.h. in an area where the posted speed limit was 40 m.p.h.; Johnston, by affidavit, stated that when he came over the top of a hill, the McCoy vehicle had pulled in front of him and that he applied his brakes but slid on sand covering the roadway; a collision occurred; the police reports listed skid marks of Johnston’s vehicle to be 117 feet long; and the collision occurred in the southbound lanes of traffic. Also included were the review of the Johnston affidavit, police reports, Johnston’s accident notice, McCoy’s accident notice and the medical and property damage reports of McCoy.

The Hearing Officer entered the decision, declaring that there was a reasonable likelihood of a judgment against Johnston. This conclusion was based upon the finding that Johnston “failed to exercise an adequate degree of care by operating his vehicle too fast for conditions of the roadway, thus contributing to the collision.”

Fault of 30% was assessed against Johnston and Johnston was directed to post a bond of $2,715.00.

On January 13, 1988, Johnston filed his Petition for Review pursuant to § 303.290, RSMo 1978. The hearing upon the petition was set in the Associate Circuit Court, 16th Judicial Circuit. The Associate Circuit Court ruled that the decision of the Director of Revenue was not supported by competent and substantial evidence and ordered the $2,715.00 bond requirement be set aside. From this judgment, the Director has presented this appeal.

The manner by which the applicable statutory provisions govern such proceedings (as presented by the case herein) was set forth by this court in Boyd v. Director of Revenue, 703 S.W.2d 19 (Mo.App.1985), and it serves no purpose to restate the declaration made therein. To say that the record covering the hearing on Johnston’s Petition for Review before the Associate Circuit Court is informative and directive in support of the court’s judgment would be indeed an overstatement.

The record discloses that neither party presented any additional evidence to the associate circuit court. The only evidence was the record of the administrative procedure.

Review by this court is upon the judgment of the associate circuit court and not the decision of the Director. Such review is made pursuant to Rule 73.01. Under Rule 73.01, such review is upon both the facts and the law, Watkins v. Johnson, 606 S.W.2d 493

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Bluebook (online)
762 S.W.2d 444, 1988 Mo. App. LEXIS 1542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnston-v-director-of-revenue-moctapp-1988.