author: FINCH, Presiding Judge.

text:
    Thomas E. JEPSON, Appellant, v. James S. STUBBS, Respondent.
    No. 59803.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1977.

      Arthur A. Benson, II, Kansas City, for appellant.
    Dean F. Arnold, Kansas City, for respondent.
   FINCH, Presiding Judge.

This is an appeal from a summary judgment in a negligence action wherein Thomas E. Jepson, hereinafter referred to as plaintiff, sought actual and punitive damages from James S. Stubbs, hereinafter referred to as defendant, his former attorney, for alleged negligence in connection with his representation of plaintiff on a charge of refusing to submit to induction into military service. The appeal was taken to this court on the basis that some of the questions raised necessitate construction of federal and state constitutional provisions. While we do not reach those questions in deciding the ease, we conclude that we do have jurisdiction. We affirm.

The record before us includes plaintiff’s amended petition, defendant’s answer thereto, a motion for summary judgment and a stipulation of facts. From those we recite the facts pertinent to our resolution of this appeal.

On January 16, 1967, plaintiff received from his local board of the Selective Service System an order to report for induction. He then requested classification as a conscientious objector. After a hearing, that request was denied and plaintiff was told to report February 17, 1967. He reported to the center as directed but refused to submit to induction. He then consulted with and retained defendant to represent him on anticipated federal charges based on his refusal to submit to induction.

Ultimately, defendant advised plaintiff that he had no defense to the charges. Relying on that advice, plaintiff waived indictment and on August 1,1967, entered a plea of guilty to an information charging him with a violation of the Military Selective Service and Training Act. On September 8,1967, he was sentenced to serve three years in the custody of the Attorney General of the United States. After serving nearly 18 months in a federal reformatory, he was released therefrom on March 4, 1969, and placed on parole. On September 7, 1970, he was released from parole.

On March 12, 1973, plaintiff consulted with another attorney concerning a pardon or other relief to restore his civil rights. In that conference he learned for the first time that there might have been a defect in the order to report for induction which could invalidate his conviction. He filed a petition for writ of coram nobis in the federal district court where his sentence had been imposed and on February 15, 1975, the judge announced his intention to sustain petitioner’s motion for summary judgment, thereby setting aside plaintiff’s conviction. The formal order was entered subsequently. Rather than appeal, the United States Attorney dismissed the original charge against plaintiff.

Plaintiff filed this suit for damages on August 18, 1975. In his petition he pleaded that although apparently his suit was barred by the five-year statute of limitations applicable to malpractice actions against attorneys [§ 516.120(4)], such actually was not the case because § 516.170 provides that the statute of limitations is tolled for persons imprisoned during the period immediately subsequent to defendant’s negligence. Furthermore, alleged plaintiff, § 516.100 provides that a cause of action is not deemed to accrue until “ * * the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item [of damage] * * * ”. On the basis of § 516.100, plaintiff contends alternatively that his cause of action did not accrue and the statute of limitations did not begin to run until September 7,1970 (on the theory that he sustained the last item of damages when he was released from execution of his criminal sentence), or until March 12,1973 (when he first discovered his attorney’s negligence and the fact that he had a cause of action), or until April 15, 1975, when the federal court set aside the 1967 conviction on finding that plaintiff’s guilty plea was not knowingly made (on the theory that an action against defendant would have been collaterally estopped prior to that date).

The trial court held that the five-year statute of limitations [§ 516.120(4)] did bar plaintiff’s cause of action and that the running of the statute was not tolled by § 516.-170 for the reason that plaintiff’s incarceration was in a federal reformatory, not an institution within the department of corrections.

1. Did § 516.170 toll the statute of limitations?

Defendant argues, and the trial court evidently concluded, that § 516.170 is a reciprocal statute to § 222.010, known as the civil death act. The latter statute provides for loss of civil rights by one convicted and sentenced to imprisonment in an institution within the department of corrections for a term less than life and for civil death for those sentenced to life imprisonment. Defendant reasons that § 516.170 was enacted to compensate for that loss by tolling the statute of limitations during the period of imprisonment. Since § 222.010 is limited in its application to persons sentenced to imprisonment in institutions of the department of corrections, defendant concludes that § 516.170 likewise is so limited and has no application to one imprisoned in a federal institution.

Defendant’s premise that the two statutes were enacted as reciprocal statutes is untenable. The predecessor statute of what is now § 516.170 first appeared in chapter 43 of the territorial laws applicable to Missouri before it became a state. It was dated July 4,1807. It continued to be a part of the applicable laws thereafter. It was not until 1835 that the statute which was the predecessor of § 222.010 was enacted. Crimes and Punishments, Mo.Rev.Stat. art. IX, § 19 (1835). Obviously, it was not the existence of this civil death statute which prompted enactment of the tolling statute. The two are not reciprocal statutes and it cannot be said that § 516.170 is limited to persons imprisoned in institutions of the department of corrections because the application of § 222.010 is limited to such persons.

We look, therefore, to the language of § 516.170 to determine its application. It states in general terms that one is under a disability which has the effect of tolling the statute of limitations when such person is “ * * * imprisoned on a criminal charge, or in execution under a sentence of a criminal court for a less term than for his natural life, * * * Since the language is general, it apparently was intended to apply to all such imprisonment, regardless of what court imposes the sentence or where it is served. There is no language in § 516.170 to indicate otherwise. Furthermore, the language of the section makes it applicable to imprisonment on a criminal charge before conviction as well as to imprisonment which is in execution of a sentence imposed. That means that incarceration in jail pending trial on a criminal charge would toll the statute of limitations. This clearly confirms the conclusion that § 516.170 is not limited to imprisonment in institutions within the department of corrections.

Accordingly, we conclude and hold that imprisonment of plaintiff in a federal reformatory did result in tolling of the statute of limitations in accordance with § 516.-170. This conclusion is consistent with what this court said about the statute in question in Hyde v. Nelson, 287 Mo. 130, 229 S.W. 200, 14 A.L.R. 339 (1921):

“The reason for the enactment of the statute quoted is obvious. One actually imprisoned or physically restrained is deprived of freedom of action. He cannot look after his affairs. It would be a denial of the equal protection of the law if one so restrained were not exempted from the operation of the general statute of limitations. * * * ” 229 S.W. at 201.

However, even though § 516.170 was applicable and resulted in tolling of the statute of limitations during plaintiff’s imprisonment in the federal reformatory, it did not toll the statute for a sufficient period of time to prevent plaintiff’s cause of action from being barred. Plaintiff was imprisoned in the reformatory only until March 4, 1969, at which time he was released on parole. That was more than 5 years before suit was filed on August 18, 1975. Hence, unless § 516.170 also operated to toll the statute while plaintiff was on parole and until he was released therefrom on September 7,1970, plaintiff is not entitled to maintain this action by reason of § 516.170.

Whether it was so tolled was answered in Hyde v. Nelson, supra. In that case plaintiff filed a libel suit on April 8, 1919, based on a newspaper article published on May 11, 1910. The two-year statute of limitations was applicable and barred the suit unless the statute was tolled under the provisions of § 1323, RSMo 1919 (now § 516.170). Plaintiff had been indicted for murder on March 5,1910. He was admitted to bail on March 8, 1910, and remained at large until April 27, 1910. Plaintiff then was convicted but the judgment was appealed and was reversed and remanded on April 11, 1911. On April 26, 1911, plaintiff again was admitted to bail and he remained at liberty until April 9, 1917, when all indictments were dismissed. Plaintiff contended that he was under duress and in custody of the law and in effect was imprisoned on a criminal charge while he was out on bail. Consequently, he argued, the tolling statute was applicable during that time. This court ruled otherwise, saying that the word “imprisonment” in the statute is used in its plain, ordinary meaning and has reference to actually being confined in an institution. What the court said in holding that one on bail was not imprisoned as contemplated in the tolling statute applies to one at liberty on parole. Hence, plaintiff is not entitled to have the statute of limitation tolled by reason of his being on parole from March 4, 1969, to September 7, 1970. Sec. 516.170 tolled the statute of limitations only to March 4, 1969.

2. Should plaintiff's cause of action be deemed to have accrued on one of the dates contended for by plaintiff under the provisions of § 516.100?

In determining whether an applicable statute of limitation bars recovery, it is necessary to establish when that cause of action accrued. The standards for making that determination have been provided by the general assembly in § 516.100 which reads as follows:

“Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued; provided, that for the purposes of sections 516.100 to 516.370, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained. (R.S. 1939, § 1012)”

As previously noted, plaintiff argues alternatively for three dates as being the one on which his cause of action should be deemed to have accrued. If he is correct as to any one of those dates, his suit against defendant was not barred by limitation.

a. Did it accrue September 7, 1970?

Plaintiff contends that on September 7, 1970, the date when he was released from parole, he suffered the beginning of the last item of damages inflicted on him. He says that as of that date he had been released from his incarceration and from the limitations of his parole and that from and after that date no new or different elements of damage were imposed upon him although he continued to suffer as a result of these things. He had been released from his criminal sentence, including the conditions of parole, and was now free to seek employment, impeded only by the fact of his criminal conviction. That was the time, maintains plaintiff, that the last item of his damages resulting from defendant’s actions was sustained and capable of ascertainment. In response defendant argues that when plaintiff was adjudged guilty and sentenced to imprisonment for 3 years, his damages were sustained and capable of being ascertained at that time.

At the time plaintiff was sentenced to a term of 3 years in custody of the Attorney General, it would not have been possible to know or show to a jury how much of that time plaintiff would be required to serve in prison. It was not possible to know or show whether or when plaintiff might be placed on parole and the conditions of such parole. For that reason, we conclude that the damage sustained by plaintiff was not capable of ascertainment at that time.

However, it was not necessary to wait until September 7, 1970, to know the answers to those questions. On March 4, 1969, plaintiff was released from confinement and placed on parole for the remainder of his term. At that time plaintiff knew and was in a position to show to the jury that his actual imprisonment continued until March 4, 1969, and that he would be on parole for the remainder of his term, subject to whatever terms thereof were specified. Plaintiff has not suggested anything affecting the elements or extent of his damage which could have been proved September 7, 1970, which could not have been proved on March 4,1969. Consequently, we hold that plaintiff’s damage had been sustained and was capable of ascertainment on March 4, 1969.

b. Did it accrue March 12, 1973?

This is the date on which the parties have stipulated that plaintiff first discovered that there might be a defect in the order to report for induction which could invalidate his conviction. While not stated in the stipulation, it follows that this was the time when plaintiff discovered the alleged negligence of defendant in advising plaintiff that he had no defense to the charge and that he ought to plead guilty.

Plaintiff argues that it is unclear in Missouri whether in actions against attorneys for negligence the statute of limitations begins to run on the date of discovery of the alleged negligence or when the wrong was done or possibly on some other earlier date. He argues that there is a strong trend in other jurisdictions to hold that in such cases, because of the special nature of the relationship between attorney and client and the fact that the client needs to and does rely on the attorney rather than checking on his work to detect any malpractice, the statute does not begin to run until discovery and that Missouri also should adopt a rule of discovery. Such a rule would mean that plaintiff’s cause of action accrued on March 12, 1973.

It is true that several states have adopted the discovery rule in cases wherein clients seek recovery against an attorney for alleged malpractice. The argument for such a rule has appeal and we can understand a court reaching that result where applicable statutory provisions permit. However, § 516.100, which governs application of § 516.120(4) to this case, does not establish a rule of discovery for the purposes of determining when a cause of action accrues and the statute of limitations begins to run. Instead, it establishes the “capable of ascertainment” test. Chemical Workers Basic Union v. Arnold Savings Bank, 411 S.W.2d 159 (Mo. banc 1966); Thorne v. Johnson, 483 S.W.2d 658 (Mo.App.1972). If the legislature had intended to prescribe a “discovery” test rather than the “capable of ascertainment” test, it would have expressly so provided. We so conclude because it did exactly that in § 516.120(5) where it established a discovery test in actions for relief based on fraud (subject to the proviso that it must be discovered within 10 years) and in § 516.105, Laws 1976, p. 767, S.B. No. 470, § 2, wherein it provided that in actions for medical malpractice involving acts whereby foreign objects are permitted to remain in the body, the action must be brought within 2 years from the date of discovery or the date on which the patient in the exercise of ordinary care should have discovered such negligence (subject to the proviso that no action could be commenced after 10 years from the date of the act of neglect complained of).

In his article Professor Davis suggests that the phrase “capable of ascertainment” be construed to mean “capable of ascertainment in the normal course of events by this particular plaintiff in the exercise of reasonable diligence”. Thus interpreted, he recognizes, the “capable of ascertainment” test would be almost equivalent to the “discovery” test. In so suggesting, Professor Davis seeks to arrive at what he deems to be a more just result. However, to so construe the language of the existing statute (§ 516.100) would be to rewrite the statute so as to establish a “discovery” rather than a “capable of ascertainment” test in all instances to which the statutes of limitation are applicable. This is not what the legislature did and it is not for us to rewrite the statute to so provide. If that is to be done, it must be by legislative action.

We hold that plaintiff’s cause of action did not accrue on March 12, 1973.

c. Did it accrue on April 15, 1975?

Plaintiff urges that date as the one on which his cause of action accrued on the theory that prior to that date such action against defendant would have been collaterally estopped. He argues that this is true because the action was founded on the allegation that plaintiff’s conviction resulted from a plea of guilty not knowingly entered since it was based on negligent advice from defendant, and because the 1967 judgment of conviction included a finding that plaintiff’s plea of guilty had been knowingly entered.

Plaintiff’s cause of action is based on alleged negligent conduct of defendant in not properly investigating the facts of his case and the applicable law and in negligently advising him that he had no defense and to plead guilty when, in fact, he did have a defense, resulting in plaintiff acting on that advice to his detriment. We conclude that it was not a condition to maintaining that suit that the judgment of conviction be set aside. A hypothetical example will illustrate. Suppose that plaintiff in this suit had been sued for damages for negligent conduct in operating his car and defendant attorney advised him that he had no defense and should confess judgment. Suppose further that plaintiff followed his attorney’s advice and confessed judgment and then paid it. Assume finally that it developed subsequently that the attorney had not investigated the facts or the law and was clearly wrong in his advice. The confession of liability and the resulting judgment would at least imply a finding that defendant knowingly recognized and admitted bis negligence and Ms liability. However, contrary to plaintiff’s theory regarding collateral estoppel, it would not be a condition to a suit against the attorney that plaintiff somehow have set aside the prior judgment finding him negligent and liable in damages. Plaintiff could sue him based on his negligent conduct and would not be collaterally estopped from bringing the suit by the judgment that he was negligent and liable to the one who sued him. If plaintiff in this hypothetical situation could prove to the jury that the attorney negligently represented and advised him and that he relied thereon and confessed judgment based on the attorney’s advice, he would have proved that which would be necessary for him to recover.

Likewise, in this ease, the existence of the judgment of conviction and the findings therein would not collaterally estop plaintiff from bringing an action against defendant. Consequently, we hold that accrual of plaintiff’s cause of action was not postponed to April 15, 1975.

Having concluded that plaintiff’s cause of action accrued on March 4,1969, and not on September 7, 1970, March 12, 1973, or April 15, 1975, it follows that more than 5 years elapsed before suit was filed on August 18, 1975, that the suit was barred by limitation under § 516.120(4), and that the trial court was correct in entering summary judgment in favor of defendant.

Judgment affirmed.

MORGAN, C. J., and HENLEY, DON-NELLY, RENDLEN and SEILER, JJ„ concur.

BARDGETT, J., concurs in result.

      . All statutory references are to RSMo 1969 unless otherwise indicated.

      . The text of § 516.170 is as follows:
      “If any person entitled to bring an action in sections 516.100 to 516.370 specified, at the time the cause of action accrued be either within the age of twenty-one years, or insane, or imprisoned on a criminal charge, or in execution under a sentence of a criminal court for a less term than for his natural life, such persons shall be at liberty to bring such actions within the respective times in sections 516.100 to 516.-370 limited after such disability is removed. (R.S. 1939, § 1020”)

      . That portion of § 222.010 relating to suspension of civil rights and civil death of prisoners was declared unconstitutional in Thompson v. Bond, 421 F.Supp. 878 (W.D.Mo.1976). However, that does not affect the issues resolved in this case.

      . We recognize that White v. Fawcett Publications, 324 F.Supp. 403 (W.D.Mo.1971), holds that § 516.170 is inapplicable to prisoners under federal sentence, citing Hill v. Gentry, 280 F.2d 88 (8th Cir. 1960), which, in turn, relied on Presbury v. Hull, 34 Mo. 29 (1863). Actually, Hill v. Gentry construed § 222.010 rather than § 516.170 and the same is true of Presbury v. Hull. As we have indicated, we are of the opinion that § 516.170 is not governed by the more restrictive statutory language in § 222.-010, and it is our view and holding that § 516.-170 is applicable to persons imprisoned in federal penal institutions.

      . Typical of the cases cited by plaintiff are Hendrickson v. Sears, 365 Mass. 83, 310 N.E.2d 131 (1974), Edwards v. Ford, 279 So.2d 851 (Fla.1973), and Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176, 98 Cal.Rptr. 837, 491 P.2d 421 (banc 1971).

      . Prof. Frederick Davis in his article “Tort Liability and the Statutes of Limitation”, 33 Mo.L. Rev. 171 (1968), so recognizes when he states at 187 — 188:
      “Before it can be decided whether a given action is barred by the appropriate statute of limitation, it must be determined at what time the statute began to ‘run’. Statutes and judicial decisions have tended to identify one of four events as ‘triggering’ the running of the statute: the moment the defendant commits his wrong (the ‘wrongful act’ test); the moment the plaintiff sustains substantial injury or interference (the ‘sustainment of injury’ test); the moment that plaintiff’s damages are substantially complete (the ‘capable of ascertainment’ test); or the moment the plaintiff first becomes aware that he had been aggrieved (the so-called ‘discovery’ test).
      “The policy established by the Missouri statute adopts the third test. The running of the statute is measured from the time that the damages are complete and capable of ascertainment. * * * ”

      . See footnote 6, supra.


source: Caselaw Access Project

author: FINCH, Judge.

license: Public Domain

text:
    Frances G. DRECKSHAGE, Hazel White and John William White, Respondents, v. COMMUNITY FEDERAL SAVINGS AND LOAN ASSOCIATION, a Corporation, and John T. Miller, Substitute Trustee, Appellants.
    No. 59697.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1977.

      Carroll J. Donohue, St. Louis, for appellants.
    Dale L. Rollings, St. Charles, for respondents.
   FINCH, Judge.

This is an action wherein plaintiffs sought cancellation of instruments by which they had subordinated their purchase money deeds of trust to a later deed of trust given by Bill and Rosemary Bangert to Community Federal Savings and Loan Association (hereinafter Community). Cancellation was sought on the basis of alleged fraud and deceit by Bill Bangert in obtaining plaintiffs’ signatures on the subordination agreements. Plaintiffs also requested equitable foreclosure of their deeds of trust and sought punitive damages against defendant Bill Bangert.

The trial court found for plaintiffs and granted broad relief, including cancellation of the subordination agreements and equitable foreclosure of plaintiffs’ first deeds of trust. It also awarded punitive damages on a separate count against Bill Bangert. Only Community and Miller appealed. On appeal, the Missouri Court of Appeals, St. Louis District, reversed on the basis that plaintiffs’ action was barred by the statute of limitations. On application, we ordered the case transferred and we now decide it as though here on direct appeal. We reverse and remand with directions.

Bill Bangert was the principal proponent of the creation of a large sports, shopping and industrial complex in northwest St. Louis County. As part of that effort, he obtained the incorporation of the village of Champ and made efforts to annex considerable land to that village. For details of the plan, see State ex rel. Eagleton v. Champ, 393 S.W.2d 516 (Mo. banc 1965). Included in the proposed annexations were tracts of land owned by plaintiffs.

In 1960 Bangert contracted to purchase 171 acres of farm land from Frances Dreck-shage for $85,000, paying $1,000 down and giving notes and a purchase money deed of trust payable over 5 years for the balance. At approximately the same time, he contracted to buy 110 acres from the Whites for $90,000. $1,000 was paid down and the rest was covered by notes and a purchase money mortgage payable over a 5 year period. Bangert made one interest payment on the Dreckshage notes in January 1962, but made no other payments. The only payments made on the White notes were the interest due in December 1961, plus payments on interest of $1,000 in 1963 and $2,500 in 1965.

In attempting to implement his development plan, Bangert undertook to build a plant to be leased to the R. C. Can Company. In the spring of 1962, he applied to Community for a loan of $2,100,000 (later increased to $2,700,000) to finance construction of that building. The proposed loan was approved on condition that it be secured by a first deed of trust, insured by a mortgage policy of title insurance, on a tract which included not only the actual building site but also the other land adjacent thereto which Bangerts owned, including the Dreckshage and White tracts.

Bangerts and Community contracted with Land Title Insurance Company of St. Louis to act as the escrow and disbursing agent in the loan transaction. The contract provided for Land Title to issue at Ban-gert’s expense a mortgage policy of title insurance to cover the loan. Land Title issued an interim binder in which the Dreckshage and White deeds of trust were listed as exceptions to the execution by Bangerts of a first deed of trust to Community. In order to eliminate those exceptions and meet the requirements for the loan, it was necessary that said deeds of trust be satisfied or that agreements which subordinated the Dreckshage and White purchase money mortgages to a deed of trust to Community be executed and recorded. In addition, the binder required that agreements subordinating the two deeds of trust to certain roadway easements be furnished and that a 2.511 acre tract be released from the Dreckshage deed of trust and added to the actual R. C. Can tract.

After issuance of the binder, Land Title’s attorney met with Bangert’s attorney to explain the exceptions listed therein and what would be required as a condition to issuance of the mortgage policy of title insurance. Bangert’s attorney then prepared agreements whereby the Dreckshage and White purchase money deeds of trust would be subordinated to the deed of trust to be given by Bangerts to Community to secure the loan for the construction of the R. C. Can building. After approval thereof as to form and substance by Land Title’s attorney, Bangert’s attorney delivered them to Bangert who secured execution thereof by the Whites on August 13, 1962 and by Mrs. Dreckshage on August 16, 1962. The required agreements subordinating the deeds of trust to certain roadway easements were executed at the same time. Neither Mrs. Dreckshage nor the Whites read any of the agreements before executing them.

The executed subordination agreements were delivered by Bangert to Land Title which recorded them on October 10, 1962. These subordination agreements were relied on by Community when it made the loan to Bangerts and disbursed the money thereon to Land Title as escrow agent. Subsequently, the building for which the loan was obtained was built and occupied by R. C. Can.

Bangert experienced financial difficulties and became delinquent on the loan from Community. He executed an assignment of the rentals from R. C. Can, but these were not sufficient to take care of all sums due on the deed of trust and his delinquency on the loan continued. In July 1971 Community began foreclosure proceedings, with the sale set for August 11,1971. In September 1971 Bangert was adjudged a bankrupt.

Plaintiffs were notified by letter of the foreclosure proceedings by Community. They promptly made inquiry as to the proceedings and the basis therefor, after which they filed this action, claiming that this was the first time that they had known that the agreements executed in 1962 subordinated their first deeds of trust. They alleged that these agreements had been secured by fraud and should be cancelled.

At trial Mrs. Dreckshage testified that Bangert had represented the documents presented to her for signature as being agreements concerning the 2.511 acre tract she was to release and that in signing the documents she had relied upon a note of approval from her attorney, presented by Bangert, which had been obtained on the basis of her attorney’s examination of an agreement concerning the 2.511 acre tract, not the agreement subordinating her deed of trust to that of Community. Mr. and Mrs. White testified that Bangert had represented to them that the paper presented for execution was just another document related to the proposed annexation to the village of Champ, similar to many they had signed before, and that a subordination agreement had not been mentioned. Both Mrs. Dreckshage and the Whites testified that they did not read the instruments before signing them.

The first issue for resolution is defendants’ contention that plaintiffs’ cause of action is barred by limitation. This necessarily involves a determination as to which statute of limitation is applicable.

The objective of this suit is to cancel for fraud the instruments which subordinated plaintiffs’ purchase money mortgages. It does not attack the conveyances whereby the tracts were conveyed by plaintiffs to Bangert nor does it seek to set aside those conveyances or recover the real estate on the basis of fraud. For these reasons we agree with the trial court’s conclusion that § 516.120(5), which establishes a five-year statute of limitation, is applicable. Ludwig v. Scott, 65 S.W.2d 1034, 1035 (Mo.1933).

Sec. 516.120(5), after establishing a five-year statute of limitation, provides that an action seeking relief on the ground of fraud accrues when the aggrieved party discovers the facts constituting the fraud. The actions of Bill Bangert which induced plaintiffs to sign the subordination agreements and which the trial court found to be fraudulent occurred in the summer of 1962 and this suit was not instituted until 1971, considerably more than five years later. However, the evidence disclosed and the trial court found that plaintiffs did not read the subordination instruments when presented to them for signature and did not learn until 1971. of the true nature of the instruments they had signed and of the fraud perpetrated upon them. Hence, the statute began to run at that time unless, as defendants contend, plaintiffs were charged with constructive notice of the fraud by the fact that the subordination instruments in question were recorded on October 10,1962. To sustain their position that plaintiffs were charged with constructive notice of the true nature of the instruments they had signed and, hence, of the fraudulent misrepresentations made to them, defendants rely on § 442.390 which provides:

“Every such instrument in writing, certified and recorded in the manner herein prescribed, shall, from time of filing the same with the recorder for record, impart notice to all persons of the contents thereof and all subsequent purchasers and mortgagees shall be deemed, in law and equity, to purchase with notice.”

Defendants’ position on this issue is clearly stated in their brief in this language:

“It is the law that the very liberal provisions of § 516.120(5) apply only to ‘concealed’ fraud. The alleged fraud in this case was not of a secret nature. Here the Subordination Agreements, complete and perfect on their faces, and in form appropriate for recordation were of record when the Community Federal Deed of Trust was recorded and have been of record ever since. That was open to discovery by the plaintiffs at all times because the recording of the Subordinate Agreements constituted notice to the whole world of their contents. Had there been fraud on Bangert’s part, it was easily subject to discovery after October 10, 1962 because it was boldly spread on the County records. The statute began to run from the date of recordation, the time at which any fraud became discoverable. * * *”

Defendants cite various cases in support of their contention that plaintiffs’ cause of action is barred by limitation but the only case cited which seems to support the proposition that plaintiffs herein were obligated to search the records and, hence, barred by limitation from maintaining this action for fraud, is Ludwig v. Scott, supra, wherein the court said at 1035 that because the transactions were a matter of public record, plaintiff therein “could have learned at any time upon inquiry there just what she had signed and how great her liability was.” In Ludwig the court concluded that the running of the statute of limitations was triggered by the recordation in 1923 of the instruments that had been procured in 1922 by false representations, even though it was 1927 when plaintiff actually gained the knowledge necessary to cause her to make inquiry into her liabilities resulting from the false representations of her former employers.

The rationale of defendants’ position is that § 442.390 makes recordation of an instrument notice to everyone, including owners and other persons with prior existing interests, and that even owners of existing rights act at their peril if they do not check in the recorder’s office sufficiently often to avoid being affected by subsequently recorded instruments. It is our conclusion that this question has not been definitely resolved in Missouri by Ludwig or the other cases cited and that we should determine in this case whether § 442.390 has such a meaning and effect.

A concise statement of the basic purpose of recording statutes is contained 6 Powell on Real Property ¶913 (1977):

“ * * * [R]ecordation enactments began in an effort to protect present ownerships by the establishment of public records. Early in their history, however, they took on the added function of establishing a system of statutory priorities for the protection of subsequent purchasers of land. This added function has become the general and basic purpose of these statutes in all present day enactments. No variation on this point is now discoverable.”

Further discussion of the purpose and effect of recording statutes is contained in Annot., 137 A.L.R. 268, which deals with “Public records as notice of facts starting running of statute of limitations against action based on fraud.” It is stated at 276 thereof:

“ ‘The proposition is frequently announced that, under the registration laws, the proper record of an instrument authorized to be recorded is notice to all the world. But this means simply that the record is open to all, and is notice to interested parties. The record of an instrument is notice only to those who are bound to search for it. It is not a publication to the world at large. The recording of a deed or mortgage, therefore, is constructive notice only to those who have subsequently acquired some interest or right in the property under the grant- or or mortgagor.’ 23 RCL p. 211, § 71.
“It is apparent, therefore, that where a court decides that a defrauded party is charged with notice of facts appearing from the records, so as to start the running of the statute of limitations against his action, the ruling cannot well be based on the recording laws, because those laws have reference to the outstanding rights and interests of third persons and are intended to give protection to those who in good faith acquire interests in reliance upon the records and who meet the conditions laid down. The recording laws establish a priority as between innocent claimants to the same property or right; they are not intended to give security to the perpetrators of fraud as against their victims. As pungently stated in Andrews v. Smithwick (1870) 34 'Tex. 544, * *, the recording laws do not make ‘provision for the registration of fraud.’
“ * * * [T]he purpose of recording laws is to notify persons acquiring title or rights subsequent to those of record, and not to give protection to the perpetrators of fraud. * * . * ”

Particularly pertinent to the question of whether plaintiffs are persons who would have an obligation to search the records for subsequently recorded instruments which might affect their existing purchase money mortgages and whether recording constitutes notice to them, the same annotation states at 283:

“According to the prevailing and, it seems, the better-reasoned doctrine, one who executes an instrument in reliance upon false representations as to its character or contents is not by the mere record of the instrument given such notice of the fraud as will start the running of the statute against his cause of action.
“The doctrine stated has been applied in cases where the fraud related mainly to the character of the instrument executed.”

A recent case in Alabama, which has a statute similar to § 442.390, applies the foregoing rule. In Cumberland Capital Corp. v. Robinette, 57 Ala.App. 697, 331 So.2d 709 (1976), a mother brought an action against her son and daughter-in-law to set aside a deed and against a bank to set aside a mortgage obtained from the son and daughter-in-law after they had fraudulently acquired the mother’s property by forging her signature to the deed. The defendant bank argued that plaintiff mother was barred by the one-year statute of limitations pertaining to actions for fraud. The statute provided that the suit must be brought within one year from the time the fraud was discovered or should have been discovered and the bank contended that plaintiff received notice of the deeds when they were recorded by her son. The court disagreed with the bank on this point, citing an earlier decision of the Alabama Supreme Court for the proposition that “the notice contemplated by the recording statutes affects subsequent parties and not those antecedent in the chain of title.” 331 So.2d at 714.

Language in Young v. Howard, 73 App. D.C. 340, 120 F.2d 712, 713 (1941), states what we believe to be the purpose and meaning of statutes such as § 442.390:

“A primary purpose of the recordation of an instrument is to give notice of its existence to those about to deal with the property involved. Such persons are protected by, and charged with, notice of the recorded instrument. The purpose, in most instances, is not to inform those with existing interests of events purportedly affecting their property and to charge them with such knowledge. It is often said that a recordation operates prospectively, not retrospectively. To attribute the latter effect to a recordation would necessitate periodic checks by owners, lienholders, and other with existing interests. A person should be circumspect when he enters into a transaction and in performing his subsequent contractual duties, but to require him to act as a member of a watch and ward society to safeguard his position against all the world is neither reasonable nor in accord with the authorities. He who has established his position is entitled to rest as against those with whom he has no continuing obligation.”

We conclude and hold that plaintiffs’ action accrued when they learned in 1971 of the alleged fraud perpetrated on them, not in 1962 when the subordination agreements were recorded, and that plaintiffs’ action is not barred by limitation. To whatever extent Ludwig v. Scott, supra, is inconsistent with this decision, it no longer should be followed.

Defendants’ second proposition is that plaintiffs’ evidence did not establish fraud in the procurement of the execution of the subordination instruments and that plaintiffs’ suit must fail for that reason. The trial court made findings of fact wherein it found from the evidence that fraud was committed by Bill Bangert in procuring execution of these instruments. Applying the test specified in Rule 73.01, V.A.M.R., as interpreted in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), we cannot reverse the judgment of the trial court on the basis that this finding of fact was not supported by substantial evidence or was against the weight of the evidence. We overrule this contention.

The third and critical issue to be determined is who shall suffer the effects of the conduct of Bill Bangert which induced the execution of the subordination agreements in question.

The trial court, after considering conflicting assertions that plaintiffs and Community had been negligent in not discovering Bangert’s fraud, stated in its conclusions of law that it would “find neither the Plaintiffs nor Community Federal negligent although it may be arguable that additional precautions by either or both could have averted the fraud or at least caught it.” The court went on to hold for plaintiffs, so concluding on the basis that “whether all or neither were negligent * * * the equities are equal and the first Deed of Trust in time must prevail,” citing Lustenberger v. Hutchinson, 343 Mo. 51, 119 S.W.2d 921 (1938).

We likewise conclude that we are dealing with a situation wherein we have two innocent and injured parties (Mrs. Dreckshage and the Whites on the one hand and Community on the other). Neither was guilty of or responsible for the fraudulent conduct which resulted in the problem confronting us. Neither was chargeable with knowledge of the fraud. However, the rule stated in Lustenberger is specifically premised upon the assumption that the equities must be equal. The court there found that the trial court was justified in concluding that the equities between the parties were not unequal where both parties were found to have been negligent in failing to make further investigation. 119 S.W.2d at 927. The case cannot be said to establish the proposition that innocence or negligence on the part of both parties precludes further inquiry into the relative equities of the parties and establishes conclusively that they are equal. Rather, the equities between the parties is a separate matter to be determined by the court under all the circumstances after both parties are found to be either innocent of wrongdoing or negligent. As subsequently discussed, we do not conclude that the equities in this case are equal even though neither party can be said to have been responsible for the fraudulent conduct.

Plaintiffs argue that Community should have been alerted to investigate the subordination agreements by the recitation of only $1.00 consideration for agreements subordinating very substantial first deeds of trust, by the alleged fact that it was not in the interest of Mrs. Dreckshage and the Whites to subordinate their deeds of trust and by the fact that Mrs. Dreckshage and the Whites were in possession of these tracts owned by Bangert. However, we reject this contention.

In the first place, the subordination agreements recited more consideration than $1.00. They recited also the fact that construction of the R. C. Can building and development of the area as an industrial project would result and that this would enhance the value of all the property in the area. This was important to plaintiffs because they had sizeable deeds of trust, representing almost the total price for which they had sold their lands, and industrialization would increase the value of the security for their deeds of trust. In addition, the subordination agreements recited that construction of the R. C. Can building would require Bangerts to establish other facilities, including a railroad spur track line, roads, road interchanges, increased levees, sewer disposal means and restrictions, and lines and conduits for electricity, water and gas utilities, all of which would provide service to the tracts covered by the deeds of trust being subordinated and increase their value as security for the deeds of trust. These recitals were sufficient to make the subordination agreements facially valid insofar as adequate consideration was concerned. They were not such as to require Community to investigate the consideration for the subordination agreements or the circumstances of their execution before relying thereon.

Nor can it be held that Community was put on notice to investigate the subordination agreements and their execution on the basis that it knew or should have known that plaintiffs had no motive or reason to subordinate their deeds of trust. It is true that Bangert’s obligations to plaintiffs under their respective deeds of trust were fixed and certain and that plaintiffs would not receive more money than said sums as a result of subordinating. However, as previously pointed out, consummation of the plan of industrialization would increase the value of land in the area and improve plaintiffs’ security for their deeds of trust. That did provide a motive for plaintiffs to subordinate. The question is not whether that was the most prudent course of action. It was at least an arguably sound course to follow. That being true, Community was not put on notice that it should have further investigated the execution of the subordination agreements before relying thereon in making the loan for construction of the R. C. Can building.

We also reject the contention that possession of the tracts by plaintiffs placed an obligation on Community to investigate the subordination agreements. This was not an instance of unexplained possession which might indicate an undisclosed interest in the property. The sales agreements whereby these properties had been sold by Mrs. Dreckshage and the Whites to the Bangerts expressly provided that sellers should retain possession of the crop land until payment in full of the purchase price secured by the purchase money deed of trust, with sellers to pay the taxes during such time. These agreements were recorded and Community had knowledge thereof. Such possession did not require Community to investigate the execution of the subrogation agreements in question.

This is one of those regrettable situations where one of two innocent parties must suffer. In determining which one, we must consider the fact that while the Whites and Mrs. Dreckshage were misled by Bangert as to the nature of the instruments presented for execution, they did not read them before execution and they signed and acknowledged subordination agreements which they did not know they were signing. As a result, those documents were recorded and, in reliance thereon, Community made a $2,700,000 loan to Bangert, taking a first deed of trust on the property. Although Community was not, technically speaking, a bona fide purchaser for value because it “purchased” nothing, in effect it was an innocent purchaser for value as the result of its loan on the property. A mortgagee of real property is regarded for some purposes as a purchaser and is entitled to the same protection given a bona fide purchaser if it meets certain tests. 55 Am.Jur.2d Mortgages § 324 (1971); 59 C.J.S. Mortgages § 232 (1949). To be accorded such status, the mortgage must be supported by a valuable consideration, it must have been taken in good faith and without fraud, and the mortgagee must have had neither actual nor constructive notice of outstanding rights of others in the property. Spikes v. Clark, 411 S.W.2d 148 (Mo.1967). See also Johnson v. Stull, 303 S.W.2d 110, 118 (Mo.1957). Community meets those requirements in this situation.

Plaintiffs argue that Community was not a bona fide purchaser for value for the reason that Community was a party to the subordination agreements. The fact is that Community was not a party thereto. The documents make reference to the fact that the Dreckshage and White deeds of trust are being subordinated to a deed of trust to be given by Bangerts to Community to provide funds for construction of the R. C. Can building but that did not cause Community to be a party to that agreement. Such recitations did not prevent Community from being a bona fide purchaser for value.

In addition, plaintiffs argue that Community was instigator of the fraudulent subordination agreements and, hence, cannot be a bona fide purchaser who acted in reliance thereon. We also reject this argument. Community, when Bangerts applied for a loan to finance construction of a building to lease to R. C. Can, advised that it would make the loan only if it received a first deed of trust on all of Bangert’s land in that area. That included land on which Whites and Mrs. Dreckshage had deeds of trust and meant that Bangert would have to pay off the deeds of trust or arrange to have them subordinated. Such requirement did not mean that Community was the instigator of fraud or that it had any reason to suspect that fraud would be committed in meeting the requirements of a first deed of trust to secure its loan. It did not follow that fraud should be suspected or sought out because subordination was involved.

Finally, plaintiffs argue that Community must be held to have had the same knowledge that Land Title had and for that reason was chargeable with knowledge of the fraud practiced by Bangert. The simple answer to this contention is that there was no showing that Land Title had any knowledge of such fraudulent activities or that there was anything wrong with the subordination agreements. They were regular on their face and clearly recited that the White and Dreckshage deeds of trust were subordinated to a deed of trust to be given to Community.

If this were litigation involving only the Whites, Mrs. Dreckshage and the Bangerts, there is no question that the Whites and Mrs. Dreckshage would be entitled to relief. However, we must resolve the comparative rights of Community, which innocently relied on the instruments Mrs. Dreckshage and the Whites signed, and the rights of Mrs. Dreckshage and the Whites. The situation is somewhat similar to that considered by. this court in Spikes v. Clark, 411 S.W.2d 148 (Mo.1967). In that case, Esther Spikes owned a four-family flat on which there were two deeds of trust. She lived in one apartment and rented the others. The building was in need of repairs and Mrs. Spikes was anxious to sell it, but was unable to find a buyer at $13,500, the price she wanted. Before going on a vacation trip, Mrs. Spikes signed a sale agreement with a Clark Realty Company to sell for $13,500, with $100 down and the other payments and conditions specified in the contract.

When Mrs. Spikes was leaving on her vacation, Clark took her to the train and told her that there was some difficulty about clearing up an old mortgage. He presented some papers to sign which Mrs. Spikes says were represented as insurance papers in connection with clearing up the title. She signed them with that understanding.

After her return, there were meetings between Clark and Mrs. Spikes, during one of which he showed her an executed, recorded warranty deed to the property which he said she had signed. It was dated July 8, 1964, the day Mrs. Spikes left on vacation. She told Clark she had not signed a warranty deed but he insisted that she had. Meanwhile, the grantee in the deed, an employee of Clark, had borrowed $10,000 from Cass Federal Savings & Loan, securing it by a deed of trust on the property. Out of the proceeds the two prior deeds of trust had been paid off, the balance of the loan going to Clark Realty Company.

Mrs. Spikes brought suit to set aside the deed she had signed, a subsequent deed by the grantee therein to relatives of Clark, and the deed of trust placed on the property. The trial court granted the relief she sought, including a personal judgment against Clark and the others involved, but declined to set aside the deed of trust .of Cass Federal. That judgment was affirmed on appeal. In disposing of the issue of the rights as between Mrs. Spikes and Cass Federal, the court said, 411 S.W.2d at 154-55:

“ * * * The deed having thus been validly executed and delivered, even though by the agency of a species of fraud practised by Clark and his straw-party relatives and employees, was not, void and as between the two equally innocent parties, Mrs. Spikes on the one hand and Cass Federal on the other hand, the loss must necessarily fall upon the grantor whose conduct and misplaced confidence initially brought about the circumstances permitting the subsequent misconduct and resulting loss. * * * ”

The rule announced above is consistent with what this court said in Hart v. Parrish, 244 S.W.2d 105, 109 (Mo.1951):

“Although a conveyance may be voidable for fraud in the hands of a grantee, if he has given a mortgage on the property to one who advances money in good faith and without notice of the fraud, the claim of fraud may not be set up against the mortgagee. The relief of cancellation will not be granted against a bona fide purchaser for value and without notice of the fraud or other ground of cancellation. The rule is otherwise, if knowledge of the fraud can be brought home to the mortgagee. Murphy v. Butler County, 352 Mo. 1082, 180 S.W.2d 732; Smith v. Holdoway Const. Co., supra [344 Mo. 862, 129 S.W.2d 894]; Morris v. Hanssen, 336 Mo. 169, 78 S.W.2d 87; Hunter v. Hunter, 327 Mo. 817, 39 S.W.2d 359; 59 C.J.S., Mortgages, § 234, p. 304.”

Likewise, it is consistent with the general principle, stated in 59 C.J.S. Mortgages § 282c(3):

“Where the owner of a mortgage has been induced by fraud to execute a release thereof, it will generally be reinstated to its original priority of lien as to others chargeable with notice, or as against a mere volunteer or the holder of an intermediate lien who will not be prejudiced thereby; but such restoration of lien cannot be obtained to the detriment of an innocent purchaser or encumbrancer, who has, for a valuable consideration and without notice, acquired his interest in reliance on the recorded satisfaction. * * *

We conclude and hold that the rule announced in Spikes is applicable rather than the rule in Lustenberger. Accordingly, we hold that the trial court erred in setting aside the subordination agreements, erred in holding that plaintiffs’ purchase money mortgages were liens which took precedence over the deed of trust held by Community and erred in equitably foreclosing the Dreckshage and White deeds of trust and extinguishing the lien of Community’s deed of trust on the tracts in question.

The judgment is reversed and the cause remanded with directions to enter judgment in accordance with the views herein expressed.

BARDGETT, HENLEY, DONNELLY, SEILER, JJ., and TURNAGE and DIXON, Special Justices, concur.

MORGAN, C. J., and RENDLEN, J., not sitting.

      . On that date Land Title recorded 21 documents in connection with the Community loan to Bangerts. These included the various subordination agreements from Mrs. Dreckshage and the Whites and subordination agreements from other persons in the area. They also included an instrument from Mrs. Dreckshage dated September 27, 1962, which released from her deed of trust the 2.511 acres which were to be added to the R. C. Can tract.

      . All statutory references are to RSMo 1969 unless stated otherwise.

      . The text of § 516.120(5) is as follows:
      “(5) An action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.”

      . Pittman v. Pittman, 247 Ala. 458, 25 So.2d 26 (1945).

      . Other cases in accord include Blumenthal v. Serota, 129 Me. 187, 151 A. 138, 140-41 (1938); Faulkenburg v. Windorf, 194 Minn. 154, 259 N.W. 802, 805 (1935); Allen v. Webb, 87 Nev. 261, 485 P.2d 677, 682 (1971); Kinch v. Fluke, 311 Pa. 405, 166 A. 905, 906 (1933); Leonard v. Benfford Lumber Co., 110 Tex. 83, 216 S.W. 382 (1919).

      . The White subordination agreement, after reciting the considerations, stated as follows:
      “Parties of the First Part agree to and do hereby subordinate the lien of their aforesaid Deed of Trust, recorded in Book 4462 Page 38 of the St. Louis County Records, to a Deed of Trust to be executed by the Parties of the Second Part to Community Federal Savings and Loan Association for the necessary financing for the construction of the said R. C. Can Company building and the aforesaid industrial development facilities.”
      The Dreckshage deed of trust contained identical language except for a difference in book and page numbers.


author: DONNELLY, Judge. BARDGETT, Judge,

text:
    Kevin E. EVANS, Respondent, v. ALLEN AUTO RENTAL AND TRUCK LEASING, INC., Appellant.
    No. 59887.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1977.
    Max W. Foust, Kansas City, for Kevin E. Evans, respondent.
    Roy A. Larson and Laurence R. Tucker, Morris, Larson, King, Stamper & Bold, Kansas City, for Allen Auto Rental & Truck Leasing, Inc., appellant.
   DONNELLY, Judge.

This is a “negligent entrustment” case.

In June, 1972, Allen Auto Rental leased a pickup truck to Bruce E. Conrad. On October 2, 1972, Conrad, while operating the truck leased to him by Allen Auto Rental, collided with a motorcycle on which Kevin E. Evans was a passenger. Evans sued Conrad and Allen Auto Rental and obtained a judgment in the amount of $137,500 against Conrad and Allen Auto Rental. Allen Auto Rental appealed to the Kansas City District of the Court of Appeals where the judgment was affirmed. The cause was then transferred to this Court by this Court and will be decided here “the same as on original appeal.” Mo.Const. Art. V, § 10.

In Bell v. Green, 423 S.W.2d 724, 732 (Mo.banc 1968), this Court spoke of “negligent entrustment” as follows:

“. . .We refer, by way of analogy, to the line of authorities holding that the owner of a car may be liable if he, knowingly or having the means of knowledge, turns his car over to a driver who is incompetent by reason of age, inexperience, habitual recklessness or otherwise; such liability further depends upon a finding that the act of the owner concurs with the negligence of the driver as a proximate cause of the injury. Thomasson v. Winsett, Mo.App., 310 S.W.2d 33; Dinger v. Burnham, 360 Mo. 465, 228 S.W.2d 696; Saunders v. Prue, 235 Mo. App. 1245, 151 S.W.2d 478; Lix v. Gastian, Mo.App., 261 S.W.2d 497; Ritchie v. Burton, Mo.App., 292 S.W.2d 599; 8 Am. Jur.2d, Automobiles, § 573, p. 125; Restatement of Torts, Vol. 2, § 390, and illustrations listed at p. 316; 36 A.L.R. note, loc. cit. 1148; 68 A.L.R. note, loc. cit. 1013; 100 A.L.R. note, loc. cit. 923.”

In 2 Restatement, Law of Torts, Second, § 390, it is stated:

“One who supplies directly or through a third person a chattel.for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.”

In Woods, Negligent Entrustment, Evaluation of Frequently Overlooked Source of Additional Liability, 20 Arkansas Law Review 101, 102 (1966), the following are said to be necessary ingredients in an entrustment case:

“(1) Proof that the entrustee was incompetent, inexperienced or reckless; (2) that the entrustor ‘knew or had reason to know’ of the entrustee’s condition or proclivities; (3) that there was an entrustment of the chattel; (4) that the entrustment created an appreciable risk of harm to the plaintiff and a relational duty on the part of the defendant; (5) that the harm to the plaintiff was ‘proximately’ or ‘legally’ caused by the negligence of the defendant.”

We have reviewed the above, and other authorities, and now conclude and hold that the essential elements which must be shown in order to invoke the doctrine of “negligent entrustment” are:

(1) that the entrustee is incompetent by reason of age, inexperience, habitual recklessness or otherwise;

(2) that the entrustor knew or had reason to know of the entrustee’s incompetence;

(3) that there was an entrustment of the chattel; and

(4) that the negligence of the entrustor concurred with the conduct of the entrustee as a proximate cause of the harm to plaintiff.

Plaintiff’s Instruction No. 2 reads as follows:

“Your verdict must be for plaintiff against defendant Allen Auto Rental and Truck Leasing, Inc. if you believe:
“First, defendant leased the 1972 Chevrolet Pick-up Truck to Bruce E. Conrad, and
“Second, at the time defendant leased the 1972 Chevrolet Pick-up Truck to Bruce E. Conrad it knew or should have known that he was an habitually negligent driver, and
“Third, that in leasing the 1972 Chevrolet Pick-up Truck to Bruce E. Conrad defendant was thereby negligent, and “Fourth, that Bruce E. Conrad thereafter permitted the 1972 Chevrolet Pick-up Truck to come into collision with the rear of the motorcycle upon which plaintiff was riding as a passenger, and
“Fifth, Bruce E. Conrad was thereby negligent, and
“Sixth, such negligence of Bruce E. Conrad directly combined with the negligence of defendant Allen Auto Rental and Truck Leasing, Inc. to cause damage to plaintiff.”

We hold that the case must be reversed and remanded because Instruction No. 2, a verdict-directing instruction, failed to require a finding of “all essential fact issues necessary to establish the legal proposition on which the right to the verdict is based.” Fitzpatrick v. Ford, 372 S.W.2d 844, 849 (Mo.1963).

The instruction is prejudicially erroneous because it failed to require a finding that at the time Allen Auto Rental leased the truck to Conrad, Conrad was not competent to drive the truck. Proof of the entrustee’s incompetence is essential to establish liability under the doctrine of “negligent entrustment.” Saunders v. Prue, 235 Mo.App. 1245, 151 S.W.2d 478, 483 (1941); Leone v. Doran, 363 Mass. 1, 292 N.E.2d 19, 28 (1973); McCarty v. Purser, 379 S.W.2d 291, 294 (Tex.1964).

The judgment is reversed and the cause remanded.

HENLEY, RENDLEN and SEILER, JJ., and HOUSER and McMILLIAN, Special Justices, concur.

BARDGETT, J., concurs in separate concurring opinion filed.

MORGAN, C. J., and PINCH, J., not sitting.

BARDGETT, Judge,

concurring.

I concur in the principal opinion but desire to state that, in my view, the plaintiff does not necessarily make a submissible case of negligent entrustment of an automobile merely upon a showing of prior accidents or prior convictions of motor vehicle offenses or prior suspensions and revocations of his driver’s license and knowledge of the same by the entrustor, if, at the time of the lease, the entrustee is legally entitled to operate the automobile upon the public streets of Missouri.


author: EUGENE E. NORTHERN, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Cecil WOOD, a/k/a Loring F. Winters, Defendant-Appellant.
    No. 10115.
    Missouri Court of Appeals, Springfield District.
    Aug. 8, 1977.
    Motion for Rehearing or to Transfer Denied Aug. 26, 1977.
    John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Henry S. Clapper, Monett, for defendant-appellant.
    Before HOGAN, P. J., and NORTHERN and MOORE, Special Judges.
   EUGENE E. NORTHERN, Special Judge.

Defendant-Appellant Cecil Wood, also known as Loring F. Winters, was tried under the Second Offender Act, § 556.280, V.A.M.S., on a charge of feloniously, bur-glariously and forcibly breaking and entering into the mobile home dwelling of James Adams and Sharon Adams, in which, at the time, was a human being; and was found guilty of such charge by the Lawrence County jury on July 10, 1975.

On July 10, 1975, after the verdict had been announced, the trial court inquired of defendant’s counsel if he desired to file a motion for new trial and if the motion for new trial could be filed so that it could be heard and argued on August 8, 1975, and counsel said, “Yes, I’ll try to have it ready at that time.” Thereafter, the Court said, “Mr. Clapper, if you can get the Motion for New Trial filed before August 8th and give me a copy of it at my office in Monett, it would help, and I can go over it before the motion is argued.”

Thereafter, on July 10, 1975, the court made the following docket entry: “Court is advised that counsel wishes to file motion for new trial and is given 25 days to do so. Court sets argument on Motion for New Trial and/or sentencing for August 8,1975, at 10:00 o’clock a. m.”

Thereafter, on August 8,1975, defendant-appellant filed his motion for new trial. The motion was filed four days out of time, the time for filing the motion having expired on August 4th, 25 days after date of jury verdict.

On August 8, 1975, evidence and arguments were heard on the motion for new trial and on August 13, 1975, the motion was overruled. Thereupon, the court sentenced the appellant to ten years in the custody of the Department of Corrections.

Since this motion for new trial was filed out of time, it was a nullity and nothing was preserved for appellate review. No timely request was made for extension of time in which to file a motion for new trial beyond the 25 days allowed by the court. The trial court was without jurisdiction to hear and rule upon the motion on August 8 or August 13, and could not extend the time after August 4, 1975.

The provisions of Rule 27.20(a), V.A. M.R., relating to the time for filing a new trial motion are mandatory, and the appellate court is bound to recognize the late filings sua sponte, and neither the court nor the parties can waive the rules requirement. State v. Tucker, 451 S.W.2d 91 (Mo.1970); State v. Stevens, 529 S.W.2d 670 (Mo.App.1975); State v. Smith, 527 S.W.2d 455 (Mo.App.1975); State v. Morse, 526 S.W.2d 432 (Mo.App.1975).

We have reviewed, pursuant to Rule 28.-02, V.A.M.R., the sufficiency of the amended information, finding of the trial court that the Second Offender Act applied, the verdict, judgment and sentence, and find no error. Our examination of the record does not reveal any necessity for the invocation of the Plain Error Rule, Rule 27.20(c), V.A. M.R.

The judgment is affirmed.

HOGAN, P. J., and MOORE, Special Judge, concur.


author: WASSERSTROM, Judge.

text:
    The STATE of Missouri ex rel. CHURCHILL TRUCK LINES, INC., and Bethany Express, Inc., Appellants, v. The PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent, McCarty Truck Lines, Inc., Intervenor-Respondent.
    No. KCD 28229.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.

      Warren H. Sapp, Kansas City, for appellants.
    Leonard B. Rose, Kansas City, for inter-venor-respondent McCarty Truck Lines, Inc.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

McCarty Truck Lines, Inc. applied to the Missouri Public Service Commission for a certificate of public convenience and necessity to conduct operations as a motor vehicle common carrier of general commodities between Kansas City, St. Louis and St. Joseph and their respective commercial zones, on the one hand, and on the other the cities of Bethany (and all points within a radius of 25 miles thereof) and Princeton (and all points within a radius of 20 miles thereof). Certain truck lines whose existing authority overlapped that sought by McCarty in the present application intervened in opposition before the Commission. Following a hearing, the Commission granted the application with minor variations. Two of the interve-nors, Churchill Truck Lines, Inc. and Bethany Express, Inc., sought judicial review of the Commission’s order, which was affirmed by the circuit court. From that decision, Churchill and Bethany Express take the present appeal.

Appellants assign four Points Relied On. The first of these constitutes purely an abstract statement of law and presents nothing for review. Rule 84.04(d); Bonds v. City of Webster Groves, 432 S.W.2d 777, 783 (Mo.App.1968). The other points relate to (1) the sufficiency of the evidence, and (2) the effect of the Commission’s failure to hold an open meeting for the purpose of voting upon the McCarty application. We affirm.

I.

SUFFICIENCY OF THE EVIDENCE

Appellants’ position concerning the alleged insufficiency of the evidence divides into a number of sub-arguments to the effect that the record: (a) fails to show a need for additional service in the area or that the existing carriers are not providing adequate service; (b) fails to warrant the broad territorial scope of authority granted; and (c) fails to justify the Commission’s “ignoring” intervenors’ evidence of the adverse effect which approval of the McCarty application would have upon them. In reviewing these challenges, the evidence must be measured by the well established rules that the findings of the Commission will not be disturbed if they are supported by substantial evidence and that once the authority has been granted by the Commission, the protestants must assume the burden of proof of showing that the Commission’s findings are not so supported. State ex rel. Beaufort Transfer Co. v. Clark, 504 S.W.2d 216, 217 (Mo.App.1973).

A. The Need for Additional Service

The evidence brought forward by the applicant McCarty consisted of the testimony of 38 witnesses representing 14 cities and towns located in the area which the applicant proposed to serve. McCarty conceded that the testimony of four of those witnesses had no probative value and that testimony was so treated in the Commission’s extensive findings of fact. The testimony of the 34 other witnesses is summarized by the Commission in its Report and Order which exceeds 25 pages in length and amply reveals the poor service received by area residents from truck lines then currently serving the area and the superior service rendered by McCarty to businesses and individuals in the area which it was already serving.

At the time of the hearing the area now in question was served largely by three truck lines for the transportation of general commodities in bulk. With respect to those three, the Commission found that the testimony established the following:

“Both Bethany Express and Circle M are financially weak. It is apparently their position that this weakness is due to a decline in the freight being shipped into and out of the area in question. However, this record indicates a decline in the business of these carriers resulting from poor service rather than a mere decline in the total freight shipped into the area in question. Although the management of both these carriers has changed hands recently, there has been no marked improvement in the quality of service provided to this area. In the case of Circle M it is not likely that any will occur. In the case of Bethany Express some slight improvement is evident but the company is far from providing the kind of service that the shipping public is entitled to expect.
Churchill Truck Lines, Inc. has been operating in a portion of the area in question for many years. While Churchill’s services are not wholly inadequate in those areas where it serves, it has a poor record of claim payment and delivery time which makes its service less adequate than the shipping public should be required to accept.”

These findings are well supported by the evidence. Numerous witnesses testified that their experience as receivers of freight carried by Bethany Express and Circle M has been characterized by: (1) slow service which causes harmful delay when receiving sometimes urgently needed merchandise; (2) rough or careless handling which results in damaged merchandise; (3) inattention, delay or outright refusal to pay claims; (4) the necessity of prepayment of part of the freight charges in instances where another truck line had interlined with Bethany Express — which resulted from Bethany’s weak financial condition and past failure to pay such charges; and (5) delay or failure to pick up merchandise which had been delivered but which for some reason had to be returned.

The interlining prepayment problem was illustrated by one individual who testified that he spent $100 per week in long distance calls trying to locate freight and arrange prepayment so that merchandise could be released to Bethany Express for the final leg of the haul. Another delay instance was related by Mr. McComas of McComas Motor Company in Albany, Missouri, who testified that six months prior to the hearing, Circle M (or Hall & Wells, as it was known under previous ownership) solicited business, but failed to pick up the shipment; McComas called his supplier three days after the goods were due and discovered that the shipment was still sitting on the dock in Lenexa. Another witness testified that there were times, using either Bethany or Circle M, when three out of four shipments a week were late. Max Tunks, the owner of Circle M, himself admitted that some of his freight bills revealed that delivery required 5 to 7 days.

Several witnesses gave graphic descriptions of damaged freight, one of whom testified that one and one-half months before the Commission hearing he had ordered ear-tons of envelopes from a company which he knew had a covered dock. When the envelopes arrived at his place of business, they had been soaked by water or left out in the rain and he found himself left with 15,000 envelopes with the flaps stuck shut. Another witness testified on behalf of Gentry City Memorial Hospital that in the course of shipment via Circle M and Bethany Express in the 17 months prior to the hearing, chemicals were frozen in shipment on five or six occasions which rendered them useless.

Appellants argue in their brief that “both Bethany Express and Circle M had, at the time of the hearing, worked their way out of financial crises through improved efficiencies by new managements.” Insofar as Circle M is concerned, that statement is wholly incorrect. Tunks, the Circle M owner, admitted that his principal occupation was operating a lumberyard, that he only spends an hour to an hour and a half a day in connection with the operation of the truck line; that a lot of changes would have to be made before the truck line could make him a living and that “it’s not paying me.”

Nor, contrary to appellants’ contention, does the performance of Bethany Express appear to be improving significantly. Carl J. Coleman, who at the time of the hearing was the current manager of Bethany Express, admitted under cross-examination that although some improvement had been made, the company still “could be better than they are right now.” Furthermore, certain records introduced by Bethany Express itself confirm the claims of slow service made by the various witnesses. The inadequacy of service is explained at least in part by the fact that Bethany has no terminal or dock facilities in either Kansas City or St. Joseph.

The complaints about the service rendered by Churchill, a larger and more stable truck line, were less numerous, but forceful nevertheless. In all, eleven witnesses registered dissatisfaction with the service provided for them by Churchill, mentioning some problems as delayed or slow service, short hours or absence of Saturday service, failure to keep track of merchandise during the various stages of shipment, delay in picking up merchandise, especially that which had to be returned, poor delivery practices, inefficient claims payments and inconvenience in the delivery and unloading process due to the fact that ungainly over-the-road vehicles are used rather than transferring freight to smaller trucks for delivery.

Appellants emphasize certain exhibits offered into evidence by Churchill which trace the dates on which freight was received and delivered — thus showing time in transit— made up from Churchill’s business records from January through May of 1973. This evidence was offered in rebuttal to complaints concerning inefficiency of Churchill’s service, testified to by witnesses supporting the McCarty application. Reliance upon these exhibits overlooks the fact that the records do not pertain to the same time period about which the McCarty witnesses testified. The hearing opened on February 5 and continued to February 9, 1973, when applicant presented its case, and was convened again June 11,1973, when appellants presented their evidence consisting primarily of the testimony of the owners of Churchill and Circle M and the manager of Bethany Express. Appellants presented only those records for the month immediately preceding the opening of the hearing and for the four months immediately following. Thus, this five month period represented by appellant’s exhibits does not at all coincide with the antecedent period as to which the McCarty witnesses had testified. Furthermore, the records which were offered to support the claim that Churchill rendered substantially overnight service are misleading inasmuch as the use of an average figure camouflages the substantial percentage of runs which took more than overnight for delivery. The exhibits in question, even taken at full face value, do not overwhelm the evidence offered by McCarty and which was relied upon by the Commission.

Appellants suggest that any service deficiencies of the existing service carriers are attributable to an excess of transportation capacity in an area of scanty demand. The Commission arrived at a different conclusion: . . [T]his record indicates a decline in the business of these carriers resulting from poor service rather than a mere decline in the total freight shipped into the area in question.” That conclusion is amply supported by the testimony of a number of witnesses who stated that they had resorted to hauling their merchandise themselves rather than relying upon the existing truck service which they found inadequate to their needs. These witnesses testified that such an arrangement is inefficient, inconvenient and generally undesirable and that they would utilize the services of a competent and efficient truck line if such were available. Other businesses in the area have decided to break shipments into smaller packages and ship them on successive days in order to meet the requirements of the small parcel carriers such as United Parcel Service, even though that resulted in higher transportation costs. These merchants also indicated that they would have merchandise shipped directly by McCarty in larger shipments if this authority were granted.

Appellants argue that McCarty failed to illustrate that it could improve on either the quality or quantity of service which they provide. The Commission found otherwise: “The Applicant has demonstrated that it does provide overnight service where it presently serves and that it handles customer claims quickly and with a highly cooperative attitude. Applicant proposes to offer this same service in the area which is the subject of this application.” That conclusion by the Commission is supported by the . testimony of a number of witnesses who had previously had occasion to use McCarty (by requiring freight from different areas which would be covered by different route authority) and also one or more of the in-tervenors who testified to their dissatisfaction with Churchill, Bethany Express or Circle M and their approval and appreciation of McCarty’s service.

Appellants turn their attack next upon the competency of the evidence which was offered in support of the application. They start that attack with the observation that “not one witness appeared from Kansas City, St. Louis or St. Joseph complaining of any inadequacy of service.” This phenomenon is completely explained by the fact that the question at issue is the need for service to a particular section of northwest and north central Missouri and the extent to which that need was already being satisfied. The best evidence on this inquiry obviously would be that of users of transportation in the area affected. Moreover, the territory in question involves small towns which require transportation largely for the purpose of bringing goods into the area and the residents are consignees of freight rather than shippers. The consignees are the ones who would have the direct knowledge and best ability to testify as to length of time taken for delivery, the physical condition of shipments on delivery, the manner in which complaints were handled, and the other like matters which were the main subjects for evidence.

Somewhat similarly, appellants go on to allege that 13 witnesses relied upon by the applicant were incompetent to testify because it is not they, but rather their consignors, who select the carrier to transport into the area. This argument overlooks the specific testimony of 8 of the 13 witnesses named to the effect that they can specify the carrier. Furthermore, such a state of affairs, even if true, would not affect the accuracy or relevancy of their testimony with regard to the type of service that the triad of existing carriers have been providing.

The second argument relating to competency of the witnesses focuses upon four witnesses who did not know the origin of the shipment they receive, that is, they did not know whether it moves as intrastate or interstate commerce. It is true that the hearing by the Missouri Public Service Commission was concerned with intrastate shipments as opposed to interstate shipments because the Commission jurisdiction extends only to the former. Pains were taken during the hearing to restrict questioning to intrastate shipments. Only to a limited extent, and that only when a witness could not testify as to whether shipments were purely intrastate, did the presiding officer rule .that even evidence as to interstate service was relevant to show the quality of service being rendered over the routes in question. These rulings were not error. The Commission was properly concerned not only with the quantity of service needed in the area, but also with the quality of service being rendered.

The appellants also put forward a number of more narrowly defined arguments attempting to refute the testimony of various witnesses, attacking their credibility, or otherwise attempting to discredit their testimony. Such attacks are not persuasive or significant in light of the quantity and quality of evidence put forth by the applicant and accepted by the Commission.

B. Scope of the Territorial Authority.

Appellants advance the argument that of the more than 50 towns involved in the application, only 13 were represented by witnesses at the hearing. The applicants need not produce witnesses from every town and hamlet in order to show a need in a given area; a showing of need in some towns can support a grant of wider authority in the general vicinity. State ex rel. National Trailer Convoy, Inc. v. Public Service Commission, 488 S.W.2d 942, 945 (Mo.App.1972); State ex rel. Byers Transp. Co., Inc. v. Public Service Commission, 246 S.W.2d 825, 827 (Mo.App.1952); State ex rel. Pitcairn v. Public Service Commission, 232 Mo.App. 755, 111 S.W.2d 982, 987 (1937). See also State ex rel. St. Louis-San Francisco Railway Co. v. Public Service Commission, 439 S.W.2d 556, 560 (Mo.App.1969).

The authority sought by McCarty was to serve an area covered by a 25 mile radius from Bethany and a 20 mile radius from Princeton. The witnesses who testified represented Bethany, Princeton, and various towns in both radial areas. The Commission could reasonably conclude that the service deficiencies shown to be present in 14 towns in these two areas would exist also throughout the contiguous areas. Furthermore, the Commission was cognizant of the limits of inference; for it refused to extend the grant of authority sought by McCarty to the St. Joseph commercial zone on the grounds that “no need has been demonstrated.” In short, the proof adduced fairly supports the Public Service Commission in its grant of authority from Kansas City and St. Louis and their commercial zones and from St. Joseph to the town specified in these two areas.

C. Adverse Effects upon Competitors.

For their final subpoint regarding the sufficiency of the evidence, appellants insist that the Commission should have treated as having controlling importance the adverse effect which the grant of the McCarty application will have upon existing carriers in the territory. Appellants point out correctly that Section 390.051-6 commands that “[i]n determining whether a certificate should be issued the commission shall give reasonable consideration to the transportation service being furnished by any common carrier by rail or motor vehicle and the effect which the proposed transportation service may have upon such carriers * It must be noted, however that the very same section goes on with a further provision immediately following, which states that: “the issuance of a certificate of convenience and necessity to one carrier shall not prohibit the granting of such certificate to another carrier over the same route if in the opinion of the commission the public convenience and necessity will be promoted by so doing.”

The foregoing statutory language as well as the decisional law on the subject dictate that the Commission shall weigh and balance the need, if any, for additional service against the loss of business and consequent adverse effect which will be caused to existing carriers by the grant of an additional certificate to a new carrier. This balancing process has been performed by the Commission in this case as evidenced by its Report and Order in which it considered the capabilities, equipment, facilities and route authority granted to Churchill, Bethany Express and Circle M, the inadequacy of the service currently being provided by those three carriers and the financial weakness of Bethany Express and Circle M; and on the basis of the whole record the Commission concluded that “[t]here is a need for the proposed service * * * [t]he regulation of motor common carriers is the regulation of competition not the regulation of monopoly and the proposed service is needed to provide adequate and reasonably competitive service.”

The record here does contain evidence which indicates some potential adverse effect will be caused to the three existing carriers. However there is also other evidence which indicates that the impact may be minimal. For example, McCarty testified that he did not expect his company to divert much traffic from the existing carriers because he anticipated drawing much of his business from individuals and businesses who are currently either hauling their own freight or using an alternative such as one of the “pony express” carriers. As already adverted to above in this opinion, there was considerable evidence that a number of businesses and individuals are hauling their own freight or using pony express carriage because of deficiencies in services heretofore offered and that these businesses and individuals preferred and would turn to McCarty if the certificate sought in this proceeding were granted to it.

Even conceding that a grant of the McCarty application will have some adverse effect upon the previously existing carriers, that factor alone cannot be decisive. That loss to competitive carriers can be overbalanced by the gain to the public from better service. This court stated the applicable rule in State ex rel. Pitcairn v. Public Service Commission, 232 Mo.App. 755, 111 S.W.2d 982, 987 (1937), as follows:

“True, appellants and other carriers may lose some business; but, if the public generally will be benefited thereby, such benefits may, and the commission evidently thought they did in this case, outweigh the damage resulting to the public through loss of business by any particular utility.”

See also State ex rel. Beaufort Transfer Co. v. Clark, 504 S.W.2d 216 (Mo.App.1973); Midwest Coast Transport, Inc. v. Interstate Commerce Commission, 536 F.2d 256, l.c. 260 (8th Cir. 1976); Twin City Freight, Inc. v. United States, 360 F.Supp. 709, 714 (D.C.Minn.1972).

The balancing process by which the loss of business to competitive carriers is weighed against the authorization of additional service to the public is peculiarly within the Commission’s discretionary exercise of its expertise in the field of transportation. As stated in State ex rel. Beaufort Transfer Co. v. Clark, supra at l.c. 219: “The Commission must decide when the evidence indicates that the public interest will be served by the award of authority to an additional competitive carrier, and it is not within the province of the appellate court to upset that decision so long as there is substantial evidence that such service is in the public interest.” See also Midwest Coast Transport, Inc. v. Interstate Commerce Commission, supra; and Hirschbach, “Public Convenience and Necessity in Federal Motor Common Carrier Cases — What are the Criteria?”, 16 S.D.L.Rev. 351, l.c. 378. The conclusion reached by the Commission in this case was well supported by the evidence and will not be disturbed.

II.

FAILURE TO HOLD AN OPEN MEETING

Appellants’ second major assault upon the Commission’s order drives at the lack of any open public hearing for the purpose of voting upon and adopting that order. Appellants contend that the alleged failure to hold a meeting violates the statutory requirements of Section 386.130 and Chapter 610. Appellants’ position has received some vindication in the recent Supreme Court en banc decision of State ex rel. Philipp Transit Lines, Inc. v. Public Service Commission, 552 S.W.2d 696 (Mo.1977) which was handed down subsequent to the submission of the present case.

In Philipp Transit Lines, the Commission followed a system of “notational voting” under which a proposed order would be circulated to each commissioner together with a notational voting sheet. Each commissioner individually would then consider the proposed order and indicate his concurrence or dissent on the sheet. In this way, an order could be adopted pursuant to individual concurrences without the commissioners ever meeting together in a body. The Supreme Court held that the notational system of voting (which it remarked was “frequently employed by the P.S.C.”) violated Section 386.130 which calls for and requires collegial action at a meeting of the Commission at which a quorum is present. It further held that this violation made the Commission’s order voidable and subject to attack in the proceeding for review. Having concluded that the notational voting in that case called for reversal, the Supreme Court found it unnecessary to determine whether the resulting lack of an open meeting also violated Chapter 610, the Open Meetings Law.

The present case differs substantially from Philipp Transit Lines in that the record here does not disclose whether the notational voting method was used, and there is no concession by either the Commission or by McCarty that such was the case. This court cannot properly go outside the record to convict the Commission of error. Moreover, appellants made no complaint of any violation of Section 386.130 in their application for rehearing before the Commission and this point therefore has not been properly preserved for review as required by Section 386.500(2) of the statutes.

This, however, does not conclude the inquiry because appellants also complain and place even heavier emphasis upon the Commission’s failure to hold an open hearing in compliance with Chapter 610. They say that the failure to hold an open meeting is shown by the fact that the record contains no notice by the Commission of a special meeting as would have been required by Section 610.020, together with the fact that the Commission did not adopt its General Order No. 62 providing for regular public meetings of the Commission until approximately four months after entry of the Commission’s Order in the present case. (No notice is required under Section 610.020 for “regular meetings established by . regulation of the body.”) For the purposes of this opinion, we shall assume that the Commission did not comply with Chapter 610. We shall further assume for the purposes of this opinion that a violation of Chapter 610 makes the resulting Order voidable, just as does a violation of Section 386.130, although the Supreme Court specifically refrained from so deciding in Philipp Transit Lines.

Even with the benefit of those assumptions, appellants are confronted with the insurmountable objection that they have waived any objection to a violation of Chapter 610 by not having included that point in their application before the Commission for a rehearing. Appellants recognize their difficulty in this respect, stating in their brief: “The second significant question raised by this appeal is the effect of the Commission’s failure to comply, or to certify compliance, with the Open Meetings Law, chapter 610 R.S.Mo.1973 Supp. That question, however, was never raised in an application for rehearing to the Commission; hence, before it may be considered here, appellants must establish that they have not waived the specific issue.”

Appellants seek to avoid such a waiver on two grounds. They first ask this court to review the question in its discretion under the doctrine of plain error as specified in Rule 84.13(c). We fail to find that any manifest injustice or miscarriage of justice has resulted from the alleged error. This case therefore does not present a proper occasion for the exercise of the discretion sought to be invoked.

Appellants further argue that this point should be considered on the theory that a violation of the Open Meetings Law is a jurisdictional defect which is exempted from the doctrine of waiver. The flaw in this argument is that there is nothing in the nature of this requirement and nothing in the language of the statute which makes the holding of an open meeting jurisdictional. The failure to hold an open meeting can be no more than a procedural error which must be properly preserved for review as any other. This was so held in Chung-Ling Yu v. Griser, 330 So.2d 198, l.c. 203[9] (Fla.App.1976).

The cases cited by appellants on this issue have all been examined and each of them is either not in point or is more against appellants than in their favor.

Affirmed.

All concur.

      . The order deleted authority with respect to the commercial zone of St. Joseph, as to which the Report and Order found that no need had been demonstrated. The Commission further concluded that the authority granted should not be described in terms of radii, and instead the authority granted was described in terms of specific points to be served.

      . All statutory references are to RSMo 1969 unless otherwise noted.

      . In their Point Relied Upon No. 3, appellants undertake to excuse their failure to preserve their complaint concerning the alleged violation of Chapter 610, but they make no contention that they should be relieved of their waiver of any complaint respecting failure by the Commission to comply with Section 386.130.