author: SIMEONE, Presiding Judge.

text:
    STATE ex rel. the JEWISH HOSPITAL OF ST. LOUIS, a corporation, Relator, v. Honorable William E. BUDER, Judge of the Twenty-Second Judicial Circuit, Respondent.
    No. 37541.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 6, 1976.

      Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Parks G. Carpenter, Robert S. Rosenthal, J. C. Jaeckel, St. Louis, for relator.
    Bernard J. Cuddihee, St. Louis, for respondent.
   SIMEONE, Presiding Judge.

This is an original proceeding in mandamus in which the relator, Jewish Hospital of St. Louis, a corporation, seeks to compel the respondent, Judge, to sustain its motion to dismiss a petition filed in a wrongful. death action. The petition was filed by Sara Peters, administratrix of the estate of Ida Peters, deceased, against Jewish Hospital, claiming damages for the wrongful death of Sara’s mother. Sara is the adult daughter of Mrs. Ida Peters. We have jurisdiction. Art. V, § 4, Mo.Const. For reasons hereinafter stated, we make our alternative writ, heretofore issued, absolute.

The issue which we must resolve is whether an amended petition seeking damages for wrongful death, filed after the expiration of the two-year statute of limitations by a proper party, relates back to an original petition filed prior to the expiration of the statute of limitations, in the name of a party who had no standing to sue.

Or, stated somewhat differently, if a petition for damages is filed in the name of the adult child for the wrongful death of her mother within two years of death, does an amended petition, substituting the adminis-tratrix for the adult child, relate back to the original petition filed within two years so that the action is not barred by the statute of limitations?

The facts are not particularly complicated, but the legal issues are not easily resolved. They involve the underlying policies of the wrongful death statute, the capacity of individuals to maintain an action for wrongful death, the construction of the wrongful death statute, the doctrine of “relation back” in pleading and other matters.

On February 24, 1973, Mrs. Ida Peters, mother of adult children Sara and Gus Peters, was admitted to the emergency room of Jewish Hospital and there died. On February 21, 1975, almost two years later, Sara Peters, in her capacity as an adult child, filed her pro se petition against the hospital and a physician alleging that she “is the surviving natural legitimate child and heir at law of Ida Peters, deceased. . . She alleged that her mother was referred to the hospital for emergency treatment, alleged certain acts of negligence on the part of the hospital and its personnel, and requested damages “for the manner in which her mother was treated.” To this first petition, relator, Jewish Hospital, filed a motion to dismiss alleging that the petition “contains no allegations sufficient to establish her capacity to sue,” fails to state specifically that the action is one for wrongful death, and that the petition is barred by the statute of limitations. At the time of a hearing on the motion, plaintiff did not have counsel and was given thirty days to file an amended petition.

Then, on July 24, 1975, over two years after the death of Mrs. Ida Peters, a “first amended petition” was filed. That petition, unlike the first one, alleged that Sara Peters “is the duly appointed administratrix of the estate of Ida Peters, deceased, who died ... on February 24, 1973.” The petition alleged facts similar to the first one and alleged the acts of negligence in greater detail, and prayed damages because Sara and her brother “have been deprived of her support, comfort, society, counsel, and services . . . .” To this “first amended petition” relator again filed a motion to dismiss, identical in all respects to the first one, except that it referred to the first amended petition. The motion was heard and argued, and the petition was dismissed without prejudice. Plaintiff, Sara Peters, was given another thirty days to file an amended petition.

On September 15, 1975, more than two years after the death of Ida, a second amended petition, entitled “Petition,” was filed alleging that Sara was the duly appointed administratrix of the estate of Ida Peters and that Mrs. Ida Peters died leaving no husband or minor children and that her heirs at law are Sara and Gus Peters. Other allegations were substantially the same as in the first amended petition. Damages in the amount of $40,000 were prayed. Again, relator filed its motion to dismiss alleging, inter alia, that (1) the petition, “as all previous pleadings, contains a contention that one Ida Peters died on February 24, 1973, allegedly as the result of acts or omissions on that same date by, or chargeable to, defendant hospital,” (2) “[t]he original petition was filed on February 21, 1975 by a surviving adult child and alleged heir of decedent, who was not an authorized party to sue for alleged wrongful death, and defendant hospital filed a motion to dismiss . . . .”, (3) on July 24, 1975, a first amended petition was filed “not by the original plaintiff, but by an administratrix of the estate of the deceased,” (4) “[t]he fact remains that the first pleading filed on behalf of the admin-istratrix, a party who might have standing to press a claim for wrongful death of decedent under such circumstances, was filed on or about July 24, 1975, two years and five months after the death of decedent . . . .” and (5) under § 538.100 [537.-100?] “all such claims as here attempted to be pleaded are barred unless filed within two years . . . .” The motion was argued, and respondent indicated he would overrule the motion unless Jewish Hospital obtained a writ from an appellate court.

Relator filed its petition for a writ of mandamus, and we issued our alternative writ. Pleadings were filed. The return addressed itself to the issues to be resolved: “(a) did the petition filed ... on February 21, 1975, by Sara Peters, pro se, state a cause of action under the Wrongful Death Statute . . ., and (b) if [it] did ., was the suit brought and can it be maintained by the proper party plaintiff.”

The return alleged that the law in Missouri is well settled in this regard.

Relator in its reply insists that the original petition was defective in two critical respects: (a) it failed to state a cause of action for wrongful death because the petition failed unequivocally to allege that the death resulted from the acts of the defendant-relator, and (b) it was brought by a party not entitled to sue; hence, the statute of limitations was not tolled by the filing of the original petition.

In its brief in this proceeding, Jewish Hospital makes similar points. It contends that the writ should be made absolute because (1) the action was commenced by Sara in her individual capacity as the surviving adult daughter of Ida Peters and as such she was not a member of any class mentioned in § 537.080 qualified to maintain in action for wrongful death, hence the filing of the original petition did not toll the two-year statute of limitations, and the amended petitions filed as administratrix after the statute had run constituted a new cause of action and did not relate back to the original petition; and (2) the “second amended petition” does not state a claim for wrongful death because it “does not contain any specific averment directly and proximately attributing the death of Ida Peters to any of the alleged charges

In its brief respondent contends that the original petition did contain sufficient allegations to state a claim and that the amended petitions did not state “new causes of action,” so that the amended petitions related back to the original petition filed within the two years. Respondent insists that the substitution of Sara as administra-trix of the estate for Sara in her individual capacity was a proper and valid substitution so that the action is not barred by the statute of limitations.

There are certain basic principles relating to actions for wrongful death which aid in the resolution of the issues presented in this proceeding: (1) it is generally recognized in Missouri that no cause of action for wrongful death existed at common law. Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (1808); Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920, 924 (banc 1933); State v. Daues, 314 Mo. 13, 283 S.W. 51, 56, 45 A.L.R. 1466 (banc 1926); Click v. Ballentine Produce Incorporated, 396 S.W.2d 609, 614 (Mo.1965); Davis, Wrongful Death, supra; (2) the wrongful death act creates a new cause of action where none existed at common law and did not revive a cause of action theretofore belonging to the deceased. State v. Daues, supra, 283 S.W. at 56; Nelms v. Bright, 299 S.W.2d 483, 487 (Mo. banc 1957); (3) since no cause of action existed at common law and the wrongful death statute created one, the various provisions of the statute are deemed to be substantive law and must be strictly construed. Cummins v. Kansas City Public Service Co., supra, 66 S.W.2d at 925; (4) under the wrongful death statute,

“ ‘A party suing . . . must bring himself in his pleading and proof strictly within the statutory requirements necessary to confer the right. Otherwise his petition states no cause of action . . Only such persons can recover (and in such time and in such manner) as the letter of the law prescribes. . ’ ” Wessels v. Gipfel, 522 S.W.2d 653, 654 (Mo.App.1975), quoting from Chandler v. Chicago & A. R. Co., 251 Mo. 592, 158 S.W. 35, 37 (1913); Klein v. Abramson, 513 S.W.2d 714, 716 (Mo.App.1974); Harris v. Goggins, 363 S.W.2d 717, 724 (Mo.App.1962), appeal trfd. 374 S.W.2d 6 (Mo. banc 1963);

(5) the well established principle is that where a cause of action is created by legislative enactment, where none theretofore existed, such right may be conditioned as the legislative body sees fit. Klein v. Abramson, supra, 513 S.W.2d at 717. When the statute gives the right of action, provides a remedy and imposes conditions as to the exercise of that remedy, the conditions thus imposed qualify any right of recovery and form a part of the right itself. State ex rel. Slibowski v. Kimberlin, 504 S.W.2d 237, 240 (Mo.App.1973); (6) although the death statute may imply otherwise, it is clear that an adult child who suffers a pecuniary loss as the result of the death of a parent, may recover damages therefor. Domijan v. Harp, 340 S.W.2d 728 (Mo.1960); and (7) an action for wrongful death, except for certain circumstances, must be brought within two years from the date of death. § 537.100.

The governing statute is § 537.080, as amended in 1967. The statute provides that an action for wrongful death may be sued for and recovered (1) by the spouse or minor children of the deceased, or (2) if there be no spouse or minor children or if the spouse or minor children fail to sue within one year after such death, or if the deceased be a minor and unmarried, then by the father and mother, or (3) if there be no husband, wife or minor children, “then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and the amount recovered shall be distributed according to the laws of descent.” § 537.080(3).

Here, Mrs. Ida Peters, the decedent, had no spouse and no minor children. The right of action therefore devolved upon the ad-ministratrix of her estate. At the time of filing the original petition in February, 1975, the only person legally recognized to sue was the administratrix of Mrs. Ida Peters’ estate. It is clear that Sara Peters in her original petition attempted to allege a claim for the alleged wrongful death of her mother under § 537.080, but that original petition was not filed in the name of the administratrix but in her capacity as the adult daughter.

The question therefore is whether the proper legal party under the statute, the administratrix, may be substituted in the amended petition for the adult child who had a possible beneficial interest only by virtue of legislative enactment, but had no legal standing to sue for wrongful death. Although the individual person is the same in both petitions, the capacity of the person filing the petitions is legally separate.

Counsel for the parties do not cite, nor does our independent research disclose, any authority directly in point. We may, however, be guided by analogous decisions. In a number of Missouri decisions it has been held that, in a wrongful death action, an amendment to the original petition will relate back to the petition filed originally so that the action is not barred by the appropriate statute of limitations. Cytron v. St. Louis Transit Co., 205 Mo. 692, 104 S.W. 109 (Mo. banc 1907), and cases collected therein; Slater v. Kansas City Terminal Railway Company, 271 S.W.2d 581, 583 (Mo.1954); and others.

However, in a number of decisions in this state it has been held that where a wrongful death action is brought by one not authorized to maintain an action, the petition cannot be amended after the statute of limitations has run so as to relate back to the original petition, thus saving the claim from the operation of the statute.

In Goldschmidt v. Pevely Dairy Co., 341 Mo. 982, 111 S.W.2d 1 (1937), the widow, as sole plaintiff, instituted an action for wrongful death more than six months after death, contrary to the statute then in effect. More than a year after her husband’s death, she filed an amended petition joining the minor children, an employer and an insurer. A demurrer to the amended petition was sustained by the trial court. In affirming the action of the trial court, our supreme court stated: “The widow did not sue within six months, therefore, when the first petition was filed by her alone, there was no cause of action in her to state.” Goldschmidt, supra, 111 S.W.2d at 3. And, speaking to the contention that the amended petition related back to the original petition, the court said:

“There would be merit in the relating back contention if there had been a cause of action vested in the widow when she, as sole plaintiff, filed the original petition, but, when the original petition was filed, there was no cause of action in the widow, hence there was nothing to relate back to. There being no cause of action in the widow when the original petition was filed, such petition could not be amended by bringing in the minor children as parties plaintiff, who had no cause of action when the first amended petition was filed . . . Goldschmidt, supra, 111 S.W.2d at 3.

In Fair v. Agur, 345 Mo. 394, 133 S.W.2d 402 (1939), the widow of the deceased husband filed suit as the duly appointed admin-istratrix for wrongful death within one year of the death. More than a year after the death and after the appropriate statute of limitations had run, she filed an amended petition alleging that she was the widow and natural guardian of the children and prayed that the action be continued in the natural guardian of the minor children. The Supreme Court held that the amendment to the petition was properly stricken, since the original petition had not stated a cause of action in the administratrix. The court based its decision on the principle that when the original plaintiff has no interest in the cause of action, the filing of an amended petition joining parties who have an interest does not relate back to the filing of the original petition or toll the statute of limitations.

Finally, in Forehand v. Hall, 355 S.W.2d 940 (Mo.1962), the Supreme Court held that an amendment did not relate back to the original petition so as to permit the action to continue. In that case, Arthur R. Cobb died leaving his wife and minor child. Under the statute then in effect, the widow was entitled to sue in her own name within six months. She did not do so. After six months and within a year, she instituted suit as administratrix of the estate. After a year had elapsed, she resigned as adminis-tratrix, and an amended petition was filed by an administrator, d. b. n. The court held that the action could not proceed and that the theory of relation back had no application to this case.

Prom an examination and analysis of the authorities it may be said that in those decisions where an amendment related back to the original petition so as to save the action from the operation of the statute of limitations, the original plaintiff who instituted the action for wrongful death had at the time a legal right to sue therefor, stated a cause of action and was in fact a properly authorized party to maintain suit. But in all the decisions which did not allow an amendment to relate back to the original petition, thus saving the action from the operation of the statute of limitations, the original plaintiff had no right or authority to maintain the action in the first instance and did not bring himself within the strict language of the wrongful death statute as one who had the right and authority to sue. The principle which we deduce from the various decisions may fairly be said to be that where the original plaintiff has, under the wrongful death statute, a right to institute an action or is a proper and legally authorized party under the strict provisions of the statute to do so, an amendment substituting a proper party or adding additional parties will relate back to the original petition; but where the original party plaintiff has no right to maintain an action, has no standing to sue under the statute and is not a party authorized to sue under the strict wording of the statute, an amendment which adds or substitutes a proper party does not relate back to the original petition so as to save the action from the running of the statute of limitations. That is the situation here. At the time of filing the original petition in February, 1975, Sara Peters, as the adult child of the deceased, was not a person authorized or designated by § 537.080 to sue, nor did she have a right to maintain an action for wrongful death under the statute; only the administratrix had such a right, and only the administratrix was authorized to sue under the statute. There being no right in the adult child to maintain suit, an amendment substituting the proper party could not relate back to the original petition because “there was nothing to relate back to.” Paraphrasing the language of Goldschmidt v. Pevely Dairy Co., supra, 111 S.W.2d at 3:

“There would be merit in the relating back contention if there had been a cause of action vested in [Sara Peters, the adult child] when she, as sole plaintiff, filed her original petition, but, when the original petition was filed, there was no cause of action in the [adult child], hence there was nothing to relate back to. . ”

The original petition filed by the adult child in her capacity as such did not and could not state a cause of action under the language and authorization of § 537.080. An adult child has no right or standing, under the circumstances here, to maintain suit under the wording of the statute, and an amendment substituting an authorized and designated party cannot therefore relate back to the original petition. The breath of life cannot, by judicial hands, be instilled into a petition devoid of life.

Under the circumstances here, we hold, therefore, that the amended petition filed by Sara in her capacity as administratrix, after the statute of limitations had expired, did not relate back to the original petition filed by her in her capacity as the adult child of Mrs. Ida Peters; hence, her claim is barred. As stated in Wessels v. Gipfel, supra, 522 S.W.2d at 654:

“ ‘A party suing . . . must bring himself in his pleading and proof strictly within the statutory requirements necessary to confer the right. Otherwise his petition states no cause of action . . Only such persons can recover (and in such time and in such manner) as the letter of the law prescribes. . . . ’ ”

This conclusion is, we believe, supported by the analogies of Forehand v. Hall, Goldschmidt v. Pevely Dairy Co., Meservey v. Pratt-Thompson Const. Co., Fair v. Agur, and supported by the general principles relating to death actions discussed above.

The only decision which in some measure could support the contention of Sara is Slater v. Kansas City Terminal Railway Company, supra. The language of the court indicates that where a wrongful death action is instituted within the period of limitations by one who has no legal right to maintain the suit in the capacity in which the suit is filed but who has a beneficial interest in the subject matter of the action, the substitution by amendment of the plaintiff suing in the proper capacity after the lapse of the period of limitations will relate back to the time of filing the original action. But that language related to the context of the facts in that decision. In Slater, the plaintiff could have maintained the action in her own right as widow. Slater does not control the situation here. While it is true that Sara may have had a beneficial interest as an heir in the amount of recovery under the wrongful death action when she filed her petition in her capacity as an adult child, she had no legal standing or right under the strict wording of the statute to maintain an action other than in her capacity as administratrix. Here there was no mere change in capacity, as in Slater; Sara was totally without capacity to maintain an action at the time she instituted her action; she was in legal effect a stranger to the action. Fair v. Agur, supra.

The wrongful death statute, § 537.-080, is clear and unambiguous in this regard. Where there is no spouse or minor child or children, the action must be brought within two years of the death by the administrator or executor. The statute creating the right of action for wrongful death admits of no exceptions in this regard.

However sympathetic we are to Sara Peters, the remedy for wrongful death is a creature of statute and must be technically and strictly construed, and our conclusion is in the long run beneficial to the public.

The recent decision of this court, Hawkins v. Hawkins, 533 S.W.2d 634 (Mo.App.1976), does not aid the respondent. Although Rule 55.33(c) was amended to allow the doctrine of “relation back” as embodied in Rule 15(c) of the Federal Rules of Civil Procedure, the new rule does not authorize an amendment which states an entirely new claim. Here a new claim was filed by the administratrix, hence did not relate back to an attempted claim filed by the adult child who had no right under the wrongful death statute to do so.

Since we hold that the amendment of the petition on July 24, 1975, filed more than two years after the death of Mrs. Peters, did not relate back to the date of the original petition filed within the two-year period, it is not necessary to discuss the contested issue of whether the amended petitions alleged a claim for relief.

Mandamus is a proper remedy. State v. Buder, 428 S.W.2d 935, 939 (Mo.App.1968); cf. State ex rel. Sisters of St. Mary v. Campbell, 511 S.W.2d 141, 148-149 (Mo.App.1974); State ex rel. Kansas City Stock Yards Company of Maine v. Clark, supra, 536 S.W.2d at 144.

We have read the entire record, the briefs of the parties and all the authorities relied upon and conclude that our alternative writ heretofore issued should be made absolute.

Writ absolute.

GUNN and RENDLEN, JJ., concur.

      . The alternative writ was issued against Honorable William E. Buder. After Judge Buder’s retirement, Judge James L. Sanders was substituted as respondent.

      . The reply to the return indicates that Sara was appointed administratrix in July, 1975.

      . The return alleged that “where an action for wrongful death is instituted within the time period of the statute of limitations by someone who has no legal right to maintain the suit in the capacity in which the suit is filed but who has a beneficial interest in the subject matter of the action, which interest is alleged by the plaintiff in the original petition, the substitution by amendment of the plaintiff sueing [sic] in the proper capacity after the lapse of the statute of limitations will relate back to the time of the filing of the original action and the intervening running of the statute of limitations will not bar the maintenance of the suit by the substituted plaintiff.”

      . For general discussions, see Comment, The Missouri Wrongful Death Statute, 1963 Wash.U.L.Q. 125; Davis, Wrongful Death, 1973 Wash.U.L.Q. 327; Waters, State Legislative Developments, 23 J. of Mo.Bar, 452 (1967).

      . See the excellent historical analysis suggesting otherwise by Bardgett, J., dissenting in State ex rel. Kansas City Stock Yards Company of Maine v. Clark, 536 S.W.2d 142 (Mo.banc, 1976).

      . For other general principles, see State ex rel. Kansas City Stock Yards Company of Maine v. Clark, supra, 536 S.W.2d 142.

      .Prior to the amendment of the death statute in 1967, Laws 1967, p. 663, sections 537.070, 537.080 and 537.090 provided that the damages for wrongful death could be sued for by the husband or wife within six months, and by the minor child or children, if the surviving spouse did not sue within six months, and if there be no husband or wife or minor child or children, then by the administrator or executor. See Wessels v. Gipfel, supra, 522 S.W.2d at 654.

      . In Cytron v. St. Louis Transit Co., a father sued in his own name for the wrongful death of his son. After the statute of limitations had run, an amended petition was filed adding the mother as a party plaintiff. Our supreme court permitted the amendment and allowed the action to proceed because the amendment did not substantially change the claim. The action was, however, brought by a party authorized to maintain the action and within the period of time permitted by statute.

      . In Slater v. Kansas City Terminal Railway Company, the wife of a decedent first brought an action as personal representative of her husband and alleged that she was a personal representative within the meaning of the Federal Employers’ Liability Act and also the widow of the decedent. Her suit was filed within six months of death as required by the wrongful death statute then in existence giving the widow an action within that time. After the statute of limitations had expired, she amended her petition to state her claim as the widow under the wrongful death act. The Supreme Court held the amendment proper and that the claim was not barred. “The substitution by amendment was a mere change in the capacity in which plaintiff sued.” 271 S.W.2d at 583. At the time the original petition was filed, the widow could have maintained the action in her own right. The court allowed the amendment because it was “but a formal one” and “plaintiff [merely] misconceived the nature of her claim . . . .”

      . See also Missouri, K. & T. R. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355 (1912). Plaintiff as sole surviving parent and heir of decedent filed petition in her individual capacity; after the lapse of the period of limitations she filed an amended petition in which she sued in her individual capacity. The Supreme Court held that this was not the equivalent of commencing a new action so as to render the action barred by the statute of limitations. See also Drakopulos v. Biddle, 288 Mo. 424, 231 S.W. 924 (1921); Pyle v. University City, 279 S.W. 217 (Mo.App.1925). See cases collected in Annot., change in party after statute of limitations has run, 8 A.L.R.2d 6, 77-85 (1949).

      . See cases collected in Annot., supra, 8 A.L.R.2d at 85-90.

      . In Meservey v. Pratt-Thompson Const. Co., 291 S.W. 174 (Mo.App.1927), the court of appeals in Kansas City reached a like result under legally similar facts on a motion to strike an amended petition in a wrongful death action.

      . “It has been said it is difficult to distinguish the rulings with respect to the substitution of parties plaintiff after the running of the statutory period of limitations. . . . [0]ur rulings are to the effect that when the original plaintiff is a stranger to the cause of action and has no interest therein the filing of an amended petition joining parties having an interest after the lapse of the period of the limitation does not relate back to the filing of the original petition or toll the statute; whereas, if the original plaintiff has an interest in and states a cause of action, the rule is otherwise when a necessary party to the cause of action is joined by amendment — if the right of all is not barred, none is.” Fair v. Agur, supra, 133 S.W.2d at 403. See also Webster v. Joplin Water Works Co., 352 Mo. 327, 177 S.W.2d 447, 453 (1944).

      .The court used the following language:
      “The rule in this state is that where a suit for wrongful death is instituted within the . . . period of limitation by one who has no legal right to maintain the suit in the capacity in which suit is filed but who has a beneficial interest in the subject matter of the action, which interest plaintiff alleges by intendment, Slater v. Kansas City Terminal Ry. Co., supra, 271 S.W.2d, l. c. 583, or is filed by some, but not all, of the persons entitled to bring such action [citing cases], the substitution by amendment of the plaintiff suing in the proper capacity, or the joinder of the necessary additional parties plaintiff, after the lapse of the . period [of limitations], will relate back to the time of filing the original action . .; but where the original action is improperly filed by a stranger to the action who has no legal or beneficial interest in its subject matter, the substitution of a proper party plaintiff after the statute of limitations has run will not relate back, but will be treated as a new action, which is barred by the statute of limitations. Fair v. Agur; Goldschmidt v. Pevely Dairy Co.; Meservey v. Pratt-Thompson Const. Co.[,] supra. . . Forehand v. Hall, supra, 355 S.W.2d at 945.

      . See also Nelms v. Bright, supra, 299 S.W.2d at 491; and Russell v. Nelson, 317 Mo. 148, 295 S.W. 118, 122 (1927), where it was held that if the original plaintiffs have no cause of action they cannot by amendment relate back to the beginning of the action so as to prevent the operation of the statute of limitations.

      . We read this language to mean that a plaintiff must have had a right, under the wrongful death statute, to sue and was the authorized party to maintain suit, and did sue within the time authorized by statute and hence had a beneficial interest in the outcome. That was the situation in Slater, supra, unlike the circumstances here, where Sara, as adult child, had no right or standing to maintain suit and did not and could not state a cause of action as an adult child at the time of filing the original petition.

      . The legislative intent is ascertained from the words used in the statute. Where the language is unambiguous and conveys a plain and definite meaning, the courts have no business to look for or to impose another meaning. Pedroli v. Missouri Pacific Railroad, 524 S.W.2d 882, 884 (Mo.App.1975) — a wrongful death action.


source: Caselaw Access Project

author: WEIER, Presiding Judge.

license: Public Domain

text:
    Vincent J. GERMANESE and Arthur Sitton, a co-partnership d/b/a Germanese & Sitton Public Accountants, Plaintiffs-Respondents, v. Melvin N. CHAMPLIN and Geneva J. Champlin, his wife, Defendants-Appellants.
    No. 36792.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 6, 1976.
    Rehearing Denied Aug. 18, 1976.

      Daniel H. LeGear, Jr., Clayton, for defendants-appellants.
    Amelung, Wulff & Willenbrock, Stephen D. Hoyne, St. Louis, for plaintiffs-respondents.
   WEIER, Presiding Judge.

Melvin N. Champlin and Geneva J. Champlin appeal from the judgment of the Circuit Court of St. Louis County overruling and dismissing their motion to set aside a default judgment entered against them by that court.

The pertinent facts leading up to the original default judgment follow. Plaintiffs Vincent J. Germanese and Arthur Sit-ton are certified public accountants. They filed suit in the circuit court of St. Louis County on August 14, 1971, seeking to obtain a judgment for accounting services they allegedly rendered defendants. The petition asserted that the defendants, who were then residing in Nevada, were subject to the jurisdiction of the circuit court under Missouri’s “long arm” service statute, § 506.500, RSMo.1969, because defendants had contracted with plaintiffs in Missouri to do the accounting services and because the transaction of business for the accounting services was rendered in Missouri.

A summons for personal service outside Missouri on both defendants was issued on August 18, 1971. The sheriff of Clark County, Nevada made a return on October 6,1971. The return and accompanying affidavit of service was signed by Daryl L. Murray, Deputy Sheriff, and stated that Geneva J. Champlin was personally served at 1212 South 8th Place, Las Vegas, Nevada, on August 26, 1971. The summons was returned unexecuted as to defendant Melvin N. Champlin. An alias summons on Melvin N. Champlin was then issued on February 24,1972. The accompanying affidavit of service was signed by B. W. Perkins, Deputy Sheriff, stating that Melvin N. Champlin was personally served on March 8.1972 at 1212 South 8th Place, Las Vegas, Nevada.

On June 24, 1972 the clerk of the circuit court received a letter from Melvin N. Champlin which referred to the case by court number. He asked for a delay in placing the case on the docket until after the 1st of August, 1972 because of his work as project manager for a large construction company. He indicated that he could not appear to answer the petition before this date because it would jeopardize his position. Default and inquiry was granted as to defendant Geneva J. Champlin on June 26.1972 and default and inquiry was granted as to defendant Melvin N. Champlin on August 15, 1972. The last order set the case as to both defendants on August 29, 1972. On this last date, plaintiff Vincent Germanese appeared in court and testified the balance due his firm on account for services rendered to the defendants was $4,425.50. Judgment was entered for this sum together with $563.26 interest. Nothing further was heard from the defendants until after plaintiffs attempted to register this judgment in Kansas on March 14,1973. Then, on May 3, 1973, defendants filed a motion to set aside the default judgment reciting that they had not been personally served in the State of Nevada, nor had they appeared in the action. They further stated that they had a good defense to the action in that the plaintiffs were alleged to have negligently rendered the accounting services to defendants’ damage. Accompanying the motion was a joint affidavit of the defendants attesting that neither defendant was personally served. Geneva Champlin averred that she never saw a copy of the summons and petition allegedly served upon her August 26, 1971. Melvin N. Champlin stated that he was not personally served on March 8, 1972, but that a copy of the summons and petition was left with a baby-sitter at his residence on the date in question. Also filed at a later time was an affidavit of Beverly W. Perkins, Deputy Sheriff, stating that the sheriff’s department received the summons with petition on the 23rd of August, 1971, with instructions to serve the papers upon Melvin N. Champlin, defendant, and that service was effected by “leaving a copy of said Summons and Petition with an unidentified person of suitable age, residing at the residence of Defendant.”

Plaintiffs filed a motion to dismiss the defendants’ motion to set aside the default judgment on August 26, 1974. The matter was called on December 12, 1974, and submitted to the court after argument. On December 30, 1974 the court overruled and dismissed defendants’ motion to set aside the default judgment.

Since the motion to set aside the judgment depended for its validity on facts outside the record, we treat it as though it were an application for a writ of coram nobis. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132, 141[28] (banc 1952); Simms v. Thompson, 291 Mo. 493, 236 S.W. 876, 880[1-4] (banc 1922).

The Missouri “long arm” statute authorizes extraterritorial service of process to subject a non-resident to the jurisdiction of the courts in this state in any cause of action arising out of certain enumerated acts set out in § 506.500, supra. The method of service required at the time that this case was filed and service of process had, was personal service upon a defendant through a court of record or court officer of the place where defendant could be served. § 506.510, RSMo.1969.

Both here and in the court below defendants have contended that the circuit court should have considered the affidavits setting forth facts which impeached the Nevada sheriff’s return of service; and further, that it should have inquired as to whether it had authority to render a personal judgment against the defendants when there was no personal service upon them. Instead of deciding the question on that basis, the court decided that the verity rule as set forth in Underwood v. Underwood, 463 S.W.2d 915, 917[1] (Mo.1971) applied and the return of the Nevada sheriff on service of process could not be questioned. It is true that on service in Missouri by a sheriff within his venue, a return of service regular on its face cannot be questioned by collateral attack. If the return is in fact false, the defendants’ remedy is an action against the sheriff on his bond. This is true even if the process served by a sheriff in Missouri comes from another state if that state authorizes service in the manner approved by Missouri. O’Neill v. Winchester, 505 S.W.2d 135, 137[3] (Mo.App.1974). The basis for the verity rule is that the sheriff is a sworn officer of this state to whom the law gives credence. The doctrine of conclusiveness, however, does not extend in Missouri to the return of a private person appointed to serve the summons. Likewise, a sheriff of a state other than Missouri, or his deputy, serves process in his state which originates in this state in a private and not in an official capacity. Thus his return does not come under the verity rule. Williamson v. Williamson, 331 S.W.2d 140, 144[5- 7] (Mo.App.1960). If the rule were otherwise, an affidavit of an officer serving a process in a foreign state would not have been necessary as required by the provisions of § 506.510(3), RSMo. 1969, the same requirement imposed on a private process server in Missouri by § 506.180(2), RSMo.1969. (See Rule 54.20(b) as to current requirements.)

Here, defendant Melvin N. Champlin, in his affidavit accompanying the motion to set aside the judgment, stated that he was not personally served on March 8,1972, but that a copy of the summons and petition was left with the baby-sitter at his residence on the date in question. This, of course, indicates that he counters the affidavit of service, signed by B. W. Perkins, Deputy Sheriff, stating that he was personally served on March 8, 1972. The affidavit of Beverly W. Perkins, later filed with the court on November 14, 1974, stated that service was effected by leaving a copy of the summons and petition with some person of suitable age residing at the residence of defendant and would seem to sustain defendant Champlin’s affidavit except for the fact that reference in this affidavit was made to a summons and petition received on August 23, 1971 which had been returned by the sheriff unexecuted as to Melvin N. Champlin. But, irrespective of whether Melvin N. Champlin was personally served or whether the papers were left with a baby-sitter at his residence, by his own action in writing the court and requesting a delay in placing the case on the docket until after August 1, 1972, he effectively entered his appearance in the case and subjected himself to the jurisdiction of the court. Where a court has jurisdiction of the subject matter of the action, jurisdiction over the person of any party may be conferred by consent. Irregularities in process or even absence of process may be cured by the express or implied consent of the party to the litigation. Bennett v. Shaul, 318 S.W.2d 307, 309[4] (Mo.1958). With the exception of an objection to the jurisdiction over the subject matter, if a party takes any action in a case which recognizes the case as being in court, this will amount to a general appearance. Thus, where he seeks relief he necessarily assumes the attitude that the jurisdiction of the court has been acquired and, having taken that position, he is bound thereby and will not be heard afterwards to say otherwise. State ex rel. A.M.T. by F.W.T., Her Natural Guardian, F.W.T. and L.T., Relators v. Weinstein, 411 S.W.2d 267, 273[8] (Mo.App.1967). Affirmative action was taken by Melvin N. Champlin when he requested a delay in placing the case on the docket. He thus entered his general appearance and became subject to the jurisdiction of the court. Inaction after that time on his part is good reason to refuse his application to set aside the judgment.

We turn to the motion of Geneva J. Champlin to set aside the judgment. The verified return of service by the deputy sheriff indicates that she was personally served in Nevada by Daryl L. Murray, Deputy Sheriff, on August 26, 1971. This was countered by her affidavit accompanying the motion to set aside the judgment wherein she stated that she had not been personally served and had never seen a copy of the summons and petition allegedly served upon her that date. Where, as here, an affidavit accompanies a motion and presents facts not appearing of record, the court may consider the affidavit and may hear the matter on the affidavits presented by the respective parties. The court may also direct that the matter be heard wholly or partly on other testimony or depositions. Rule 55.28. See also Litzinger v. Pulitzer Publishing Company, 356 S.W.2d 81, 87[2] (Mo.1962). The court, by its order, however, determined that the verity rule applied and therefore did not even consider the affidavit of the defendant Geneva J. Champlin when the motion to set aside the default judgment was overruled.

Under the circumstances of the case, the court should have set the motion down for hearing and should have allowed Geneva J. Champlin to have introduced evidence with regard to the true facts of service upon her, or any other facts which would prove lack of jurisdiction of her person as alleged in her motion. Plaintiffs should have had the concurrent right to refute her charges and support the return of process. The issue could then have been resolved by a determination of the facts.

The judgment of the trial court on the motion to set aside the default judgment is affirmed as to the defendant Melvin N. Champlin and reversed and remanded as to the defendant Geneva J. Champlin. Costs are taxed one-half against the plaintiffs and one-half against the defendant Melvin N. Champlin.

McMILLIAN and RENDLEN, JJ., concur.

      . This requirement has since been changed by court rule to authorize service out of state in any manner which is proper within the State of Missouri. Rules 54.07, 54.14 (effective September 1, 1973).


text:
    Jim McNEAL, Plaintiff-Respondent, v. MANCHESTER INSURANCE & INDEMNITY COMPANY, Defendant-Appellant.
    No. 37140.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 6, 1976.
    Motion for Rehearing or Transfer Denied Aug. 18, 1976.

      Mark I. Bronson, Goldenhersh & Newman, St. Louis, for defendant-appellant.
    Howard, Edwards & Singer, Raymond Howard, Jr., St. Louis, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

This is an appeal by defendant-appellant, Manchester Insurance & Indemnity Company (Manchester), from a judgment of the circuit court of the City of St. Louis awarding the plaintiff-respondent, Jim McNeal, $1,500.00 in his equitable garnishment action against Manchester. §§ 379.195, 379.-200, RSMo 1969. Manchester raises several points urging reversal. For reasons hereinafter stated, we affirm.

The events leading to this litigation began as a result of an automobile collision on October 11, 1968, between plaintiff-McNeal and Mr. Lee Atkinson at the intersection of Page and Montclair avenues in the City of St. Louis. McNeal was insured by State Farm Insurance Co., and Atkinson was insured by Manchester. On October 23,1968, Mr. McNeal’s attorney forwarded a lien letter to Mr. Atkinson, and on November 29, 1968, he also forwarded a lien letter to Manchester. On January 16, 1969, McNeal filed suit against Atkinson in the magistrate court of the City of St. Louis seeking damages for personal injuries in the sum of $1,500.00. Default judgment was rendered against Atkinson for that amount on November 4, 1969.

On October 28, 1970, McNeal’s insurance company, State Farm, as subrogee, filed its action against Atkinson in the amount of $163.91 for property damage to McNeal’s automobile. Summons was served in this suit upon Atkinson which was forwarded to, or at least received by, Manchester. This claim was apparently settled.

More than thirty days having elapsed since the rendition of the default judgment in favor of McNeal for personal injuries against Atkinson, and after informing Manchester of the default judgment on November 19, 1969, Mr. McNeal filed his petition in the City of St. Louis for equitable garnishment against Atkinson’s carrier, Manchester Insurance. §§ 379.195, 379.200. McNeal prayed judgment in the amount of the default judgment together with costs.

Prior to trial, Manchester moved to dismiss on the ground of lack of venue, since its principal place of business was St. Louis County and it had no place of business, or any employees, in the City. The motion was overruled, pleadings were filed, and the cause proceeded to trial. Trial was held in March, 1975.

The principal dispute at the trial was whether Atkinson received any summons in the personal injury action filed by McNeal and whether Atkinson complied with certain conditions of the insurance contract by forwarding the summons to Manchester. The testimony is often confusing and contradictory, and there was no clear-cut testimony by any witness whether Atkinson received any summons or forwarded it to Manchester or whether Manchester, in fact, did not receive it. Only three witnesses testified — Atkinson and two employees of Manchester.

On direct and cross-examination, Mr. Atkinson denied receiving any summons and denied that a sheriff brought a summons, but testified that his insurance company got in touch with him after he reported the accident, and he mailed forms to it. The thrust of his testimony on direct was that he did not remember receiving a summons but he sent quite a few papers to the company. Mr. Atkinson definitely remembered appearing in court “one time” because the insurance company lawyers “represented me,” but this was explained that “Mr. McNeal’s insurance company was suing my insurance company.” He “imagine[d] it [the suit] was the same year of the accident. . . .’’In his relations with Manchester, he dealt with an insurance adjuster — a Mr. Crump. When asked if he cooperated with Manchester, his answer was positive — “I sure did.” He recalled speaking with Mr. Crump on the phone “[ajbout receiving papers” and “reported everything to him,” and recalled Mr. Crump taking a statement of him over the telephone. He was not aware that any default judgment had been taken against him. Mr. Atkinson, in questioning by the court near the end of the hearing, testified that he lived at 1325 Semple Avenue and that his sister Lois lived downstairs in a two-family flat. An examination of the magistrate file showed that a summons was left at his usual place of abode by leaving a summons with Lois on August 29, 1969. Mr. Atkinson stated, “If it was received I sent it to the insurance company.” But “[i]t’s been so long ago I don't recall any of it.” He insisted that . . everything I got I sent to the company, what it was pertaining to I don’t remember”. During the hearing, two employees of Manchester testified — Mr. William C. Blackwell, vice president in charge of claims, and Gerald C. Swinfard, claims supervisor.

Mr. Blackwell was claims supervisor from 1968 to 1970, but he did not personally handle the McNeal claim. He admitted that as a part of the Atkinson file there were present the two lien letters in 1968 from McNeal’s attorney and the letter dated November 19, 1969 informing Manchester that a default judgment had been rendered against Atkinson in the amount of $1,500.00. Also as part of the file he admitted receiving a “memo” from Mr. Swinfard advising that he had received notification of the default judgment and that the memo indicated that after contact with Atkinson, he “emphatically stated that he had not received anything other than the actual [lien] letter which he originally turned in . .” Mr. Blackwell indicated that the company received notice “regarding the default” in November, 1969. When the notice and Swinfard’s memo were received, Mr. Blackwell forwarded the information to the company’s attorneys.

A facsimile of the insurance policy with Atkinson was introduced, the duplicate of the original policy having been destroyed. The liability policy contained certain standard conditions relating to forwarding suit papers and cooperation of the insured. The policy also contained a provision that no action shall lie unless, “as a condition precedent thereto,” the insured shall fully comply with all the terms of the policy. Mr. Blackwell admitted that Mr. Atkinson forwarded suit papers in the State Farm ac-. tion and that a judgment was obtained which was paid by Manchester. He also admitted that to the best of his recollection in “this particular suit,” the company received the cooperation of Mr. Atkinson. The State Farm action was filed a year after the default judgment was obtained against Atkinson — October, 1970. As far as Mr. Blackwell knew, the only “notice ever received relative to the suit by Mr. MeNeal was the letter” informing the company that default had been entered and which sought satisfaction thereof. Counsel for Manchester sought to question Mr. Blackwell concerning the effect of not receiving a notice of suit and the prejudice to the company in not receiving notice of suit. An objection was sustained, and an offer of proof was made.

On cross-examination he admitted that the company received the State Farm summons and that it received a judgment; that the underwriting file was sought to be obtained, but “[t]he underwriter was unable to find the file”; and that he doubted a summons could be sent to the underwriter department.

A transcript of a telephone statement taken on July 29, 1970 between Mr. Crump and Mr. Atkinson was introduced, in which Mr. Atkinson denied that he or his sister received any “law suit papers.”

Mr. Swinfard, the claims supervisor who handled the case, testified. Mr. Crump was his supervisor. Mr. Swinfard handled the file until April, 1970, when he left the company, at which time Mr. Crump “took the file over and handled it.” Swinfard admitted “participat[ing] in the adjustment of an accident involving Mr. Jim MeNeal and . Lee Atkinson,” and receiving the letter of November 19,1969, which was the first time he became aware of any suit by Mr. MeNeal. He contacted Atkinson, who told him that the only letter he ever received was the lien letter, and no one in the house had received any papers. He then wrote the memo to Mr. Blackwell. He was not familiar with the State Farm suit because he had already left the company. He didn’t see how it was possible that Atkinson could have sent any summons; because he hadn’t lost anything before but “I don’t mean something that would be lost that was never found.”

Mr. Atkinson was recalled. He was informed about the magistrate file showing a summons received by his sister, Lois; he was also asked whether he received an “alias summons special” in the State Farm case. He did not recall receiving anything from State Farm. “Like I say everything I got I sent to the company, what it was pertaining to I don’t remember.”

At the end of the hearing, the court continued the cause for five days in order to locate Mr. Crump. Mr. Crump did not testify, and on April 17, 1975, the court entered its findings of fact, conclusions of law and order. The court found that (1) a policy of insurance was in effect on October 11,1968, insuring Atkinson against liability, (2) State Farm filed a claim against Atkinson, (3) Atkinson was served in that suit and testified, (4) MeNeal filed suit against Atkinson in January, 1969 for personal injuries, that he was served on August 29,1969, and default judgment was entered on November 4, 1969, in the sum of $1,500 and costs, (5) Atkinson dealt with an investigator [Crump] who was not produced to testify, and part of the defendant’s file could not be found, (6) the insured, Atkinson, cooperated with the agent of defendant, (7) the default judgment has become final and defendant has not satisfied the judgment, and (8) the defendant received a lien letter from McNeal’s attorney.

Based on these findings of fact, the court concluded that (1) defendant had in effect a policy of insurance requiring it to defend and pay on behalf of Atkinson all sums which the insured became legally obligated to pay, (2) the insured, Atkinson, cooperated with the defendant insurance company, and (3) the insured, Atkinson, has become liable for bodily injury sustained by plaintiff, MeNeal.

The court therefore ordered that judgment be entered in favor of MeNeal in the amount of $1,500 plus interest and costs.

Manchester duly appealed.

On this appeal, Manchester contends that the court erred (1) in failing to make a finding of fact and conclusion of law that the insured, Atkinson, failed to comply with the conditions of the policy relating to the “notice of suit” and “forwarding of summons” which it characterizes as “condition[s] precedent,” because such failure “prejudiced” the appellant; (2) in finding that the insured, Atkinson, cooperated with the defendant because such finding is against the weight of the evidence and is clearly erroneous; (3) because the judgment is clearly erroneous, and (4) in overruling the motion to dismiss for improper venue because the defendant does not have an office or agent for the transaction of business in the City of St. Louis and the “cause of action” did not accrue in the City of St. Louis.

Appellant argues that since the trial court made no finding with respect to the “[ijnsured’s failure to comply with the notice provisions of the policy, it must be assumed” that the trial court found this issue in favor of the plaintiff and hence erred in so finding that summons was forwarded. It argues that condition No. 7 does not permit an action against the company unless, “as a condition precedent thereto,” the insured shall fully comply with all terms of the policy, and that “plaintiff,” MeNeal, knowing that Atkinson was insured, did not notify Manchester of the personal injury suit. It contends that, not having notice of summons, appellant was prejudiced.

Appellant argues that the evidence does not support a finding that Atkinson cooperated with the company as required by condition 18 and that compliance with this condition is precedent to recovery.

As to venue, appellant argues that the governing statute is § 508.040, and since the defendant has no office or place of business in the City of St. Louis and since the plaintiffs cause of action accrues at the place of “refusal to pay,” the City of St. Louis was not the proper venue for McNeal’s equitable garnishment action.

This is a court tried case. In such a proceeding, we are bound by certain principles relating to such hearings. In such an appeal, we review both the law and the evidence, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(3). Although there has been some confusion as to our scope of review since the revision of Rule 73.01(3), as amended January 1, 1975, which deleted the phrase “clearly erroneous” in the prior rule, this confusion has now been put to rest. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Despite the appellant’s reliance on previous decisions that the judgment is to be set aside because it is “clearly erroneous,” the proper scope of appellate review, as stated in Murphy v. Carron, supra, is that the decree or judgment of the trial court will be sustained by the appellate court unless (1) it is against the weight of the evidence, or (2) it erroneously declares the law, or (3) it erroneously applies the law. The use of the words “de novo” and “clearly erroneous” is no longer appropriate in appellate review of cases under Rule 73.01. Cf. Greer v. Zurich Insurance Company, 441 S.W.2d 15, 21 (Mo.1969); Adams v. Manchester Insurance & Indemnity Company, 385 S.W.2d 359, 363 (Mo.App.1964); Hanover Insurance Company v. Abchal, 375 S.W.2d 605, 609 (Mo.App.1964). Furthermore, according to other well-settled principles in such cases, findings of the trial court are not lightly to be disturbed and should be deferred to unless it is in conflict with a preponderance of the evidence or discloses a manifest abuse or clear abuse of discretion. Rodgers v. Rodgers, 505 S.W.2d 138, 140 (Mo.App.1974).

In this type of proceeding, there are certain well recognized principles relating thereto. (1) Under our statutes, §§ 379.195 and 379.200, one who reduces his claim against an insured can proceed by garnishment of funds in the hands of the insurance company to collect the claim. Taverno v. American Auto Ins. Co., 232 Mo.App. 820, 112 S.W.2d 941, 944 (1938); (2) conditions of an automobile liability policy requiring notice to be given to an insurance carrier as soon as practicable when an accident occurs and that suit papers be filed immediately and requiring the cooperation of the insured are valid, enforceable and binding. Greer v. Zurich Insurance Company, supra, 441 S.W.2d at 30 [notice and summons]; Northwestern Mut. Ins. Co. v. Independence Mut. I. Co., 319 S.W.2d 898, 902 (Mo.App.1959) [notice, summons and cooperation]; Donlon v. American Motorists Ins. Co., 147 S.W.2d 176, 178 (Mo.App.1941) [notice, summons and cooperation]; Quisenberry v. Kartsonis, 297 S.W.2d 450, 453 (Mo.1956) [cooperation]; Meyers v. Smith, 375 S.W.2d 9, 15 (Mo.1964) [cooperation]; (3) although there is some conflict of authority throughout the country as to the effect of the insured’s failure to comply with the policy conditions on the rights of an injured person to bring an action against the insurer for “equitable garnishment,” Missouri has held to the doctrine that the rights of the injured person are derivative and that those rights can rise no higher than those of the insured so that the insurer can set up as a defense that notice of accident or suit was not given in accordance with the conditions in the policy; (4) certain of the conditions in a liability policy have been construed to be “conditions precedent” while others have been considered as “conditions subsequent.” In this regard there is much confusion in the decisions. It seems to be uniformly held that the “cooperation” clause is a condition subsequent and “. . . where garnishee seeks to escape coverage solely because of an alleged breach of a policy provision requiring the insured to cooperate with the insurer, the burden was upon it to prove facts which would make that provision relieve [the insurer] from liability. . . . ” Meyers v. Smith, supra, 375 S.W.2d at 15, and cases cited therein; Colson v. Lloyd’s of London, 435 S.W.2d 42, 45 (Mo.App.1968), and cases cited therein. But conditions relating to suit and forwarding of suit papers are of a different hue, and such conditions are precedent to recovery, applicable not only to the insured but also to the injured person seeking to recover a judgment against the insurer. Northwestern Mut. Ins. Co. v. Independence Mut. I. Co., supra, 319 S.W.2d at 902; Donlon v. American Motorists Ins. Co., supra, 147 S.W.2d at 179; Nevil v. Wahl, 228 Mo.App. 49, 65 S.W.2d 123, 126 (1933); (5) it is uncertain whether a condition that no action lies against the company “ ‘. unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of [the] policy * ? * ’ ” is one that is precedent, subsequent or a forfeiture, for it is “immaterial.” Such a condition “should be construed most strongly against the insurance carrier.” Greer v. Zurich Insurance Company, supra, 441 S.W.2d at 31; (6) despite earlier statements to the contrary, it is now clear that prejudice to the carrier is to be considered in determining if notice of the accident was given and suit papers were forwarded. Greer v. Zurich Insurance Company, supra, 441 S.W.2d at 32; (7) the usual rules of construction apply. The policy is a contract. Plain and unambiguous language must be given its plain meaning. The contract should be construed as a whole; but insofar as open to different constructions, that most favorable to the insured must be adopted, Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99, 101-102, 57 A.L.R. 615 (1927); Meyers v. Smith, supra, 375 S.W.2d at 16-17; and (8) what constitutes a breach of a condition, especially cooperation or lack thereof in the defense of an action is usually a question of fact for the judge or jury hearing the cause. Meyers v. Smith, supra, 375 S.W.2d at 17, and cases cited therein.

Three of the appellant’s points relating to notice, forwarding of the summons, “cooperation” and that the judgment was “clearly erroneous” can bé considered together. Viewing this cause in the light of the various legal principles and tests stated above, we cannot conclude that the trial court erred in rendering judgment for the respondent-McNeal. It is clear that the notice of suit provisions and forwarding of suit papers was a condition precedent. But we must give the plaintiff the benefit of all evidence and the favorable inferences derived therefrom and the benefit of defendant’s evidence insofar as it aids plaintiff’s case; we must also defer to the trial court in all matters of credibility. The court found that Atkinson “cooperated” with the appellant. This was a reasonable finding under the evidence. The finding implied that Mr. Atkinson forwarded the summons to the appellant. The thrust of Atkinson’s testimony was that he did not know or remember forwarding any papers to the insurance company but anything he received he forwarded. The magistrate’s file shows that summons was served on Mr. Atkinson’s sister who lived in the same building. Mr. Atkinson’s statement to Mr. Crump that he did not receive any papers was made in July, 1970, some two years after the accident and months after the suit was brought. The appellant admitted receiving the papers in the State Farm action and admitted that it could not locate the underwriter file. Although given an opportunity to produce Mr. Crump, he did not testify.

The issue, therefore, of whether Atkinson either “cooperated” with the appellant and filed notice of suit and forwarded a summons was, we believe, in the posture of this case, a fact issue for the trial court which was resolved in favor of the plaintiff. We cannot conclude that under all the evidence there was an abuse of discretion or that, under all the circumstances, the findings and conclusions of the trial court were against the weight of the evidence, erroneously declared or erroneously applied the law.

As to the fourth contention, that venue was improper, we hold that venue in the City of St. Louis was proper. The precise issue of proper venue in an equitable garnishment proceeding does not seem to have been expressly decided by our appellate courts. Appellant relies on State v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62 (banc 1956), Moherstadt v. Harry Newman Inc., Motor Cars, 204 Mo.App. 619, 217 S.W. 591 (1920), and § 508.040. These decisions are not, however, dispositive of the issue. Section 508.040 provides, in pertinent part,

“Suits against corporations shall be commenced either in the county where-the cause of action accrued ... or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.”

This section is applicable when a corporation is a sole defendant. State v. Weinstein, supra, 295 S.W.2d at 65. In suits against insurance companies it has often been held that proper venue is the place where the cause of action accrued. Cf. Daniels v. Yarhola Pipe Line Co., 206 S.W. 600 (Mo.App.1918); note 10, § 508.040, V.A.M.S. It has been held that a cause of action for a breach of an obligation to pay under an insurance policy arises at the place where the insurer is to pay the loss, and where the policy is silent as to the payment of the loss, it is presumably to be made at the residence of the insured. See 44 Am.Jur.2d, Insurance, § 1898, p. 835 (1969); cf. Halliwill v. Mutual Service Casualty Insurance Co., 257 Minn. 252, 100 N.W.2d 817, 818 (1960). Since a foreign insurance company may be sued either in the county where the cause of action arose or in the county where it keeps an office for the transaction of business, we believe venue was proper since the cause of action accrued at the place of residence of the plaintiff. When default judgment had been rendered against Atkinson in the City of St. Louis and § 379.200 became applicable, the appellant became subject to an equitable garnishment at the place where the obligation was due — the residence of the plaintiff, Mr. McNeal. The collision occurred in the City of St. Louis. The city was the proper venue for the action for personal injuries. The garnishment action is ancillary to the main action; hence, venue is proper in the City of St. Louis. Cf. In re Breese’s Estate, 51 Wash.2d 302, 317 P.2d 1055, 1057 (1957).

During the hearing, an attorney representing appellant admitted that, although there were no agents or office in the city, the company did write for residents of the City of St. Louis.

Under all these circumstances, we rule this point against appellant.

Lastly, we must dispose of a motion to dismiss the plaintiff’s cause of action, filed on the day of oral argument, on the ground that the petition fails to allege the performance of conditions precedent to recovery in accordance with the insurance contract.

Rule 55.16 provides that, in pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions have been performed or have occurred. In an action upon a contract it is necessary to allege generally the performance of conditions precedent. Harding v. State Farm Mutual Automobile Ins. Co., 448 S.W.2d 5, 7 (Mo. banc 1969), and cases collected in note 7, § 509.170, V.A.M.S. But this is not an action on the contract; it is an equitable garnishment proceeding pursuant to § 379.-200. We overrule the motion.

We have read the transcript, the briefs and contentions of the parties, all the authorities cited therein and many more and conclude that the trial court did not err.

The judgment is affirmed.

KELLY and GUNN, JJ., concur.

      . “. . . I don’t exactly remember whether I received a summons or not, but I don’t think I did,” or “. . .1 could have gotten a summons. In any event I did appear in court, but I have forgotten.” “. . .1 can’t remember back that far, I really don’t [recall].” “. . . They could have brought me one, or my insurance company could have called and told me.” “. . I sent quite a few papers to the insurance company; it might have been something resembling that [the summons in the property damage suit]. . . . ” “Like I said it was several different types of papers in this. Like I said I just do not remember.” “. Like I told you before I don’t remember all of this stuff. . . But “. . anything you got pertaining to this accident you forwarded them to Mr. Crump, right? A That’s what he told me to do.”

      . The underwriting file was also “unavailable.” Mr. Blackwell admitted that “occasionally” suit papers come into the underwriting department, “but they are sent to us [claims department] right away.”

      . Condition No. 1 was a “Notice of Accident." Condition No. 2 provides: “Notice of Claim or Suit ... If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.”
      Condition No. 7 provides: “Action Against Company ... No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.
      Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. Nothing contained in this policy shall give any person pr organization any right to join the company as a co-defendant in any action against the insured to determine the insured’s liability.
      Bankruptcy or insolvency of the insured or of the insured’s estate shall not relieve the company of any of its obligations hereunder.”
      Condition No. 18 provides: “Assistance and Cooperation of the Insured . . . The insured shall cooperate with the company and, upon the company’s request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of accident.”

      . The court did make a finding of fact and conclusion of law that the insured “cooperated” with the appellant-insurance company.

      . Appellant does not indicate whether it means the cause of action for personal injuries against Atkinson or the cause of action for equitable garnishment against the insurance company under § 379.200. Presumably, it is the latter.

      . Condition No. 1 relates to notice of accident; condition No. 2 relates to “Notice of Claim or Suit” but refers to every “demand, notice, summons or other process” received by him. Appellant nowhere contends that condition No. 1 was violated; its only contention is as to condition No. 2.

      .Section 508.040 provides: “Suits against corporations shall be commenced either in the county where the cause of action accrued, or in case the corporation defendant is a railroad company owning, controlling or operating a railroad running into or through two or more counties in this state, then in either of such counties, or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.”

      . See Annot., Liability insurance — notice—papers, 18 A.L.R.2d 443, 499 (1951).

      . Donlon v. American Motorists Ins. Co., supra, 147 S.W.2d at 178, rehearing overruled, Mo., 149 S.W.2d 378; Bauman v. Western & Southern Indemnity Co., 230 Mo.App. 835, 77 S.W.2d 496, 498 (1934); Meyers v. Smith, supra, 375 S.W.2d at 15; Greer v. Zurich Insurance Company, supra, 441 S.W.2d at 30 — “It is generally recognized in Missouri as well as elsewhere that, after an injured [appellant’s brief states ‘insured’] person has obtained a judgment against an insured defendant, the judgment creditor stands in the shoes of the insured person and his rights are no greater and no less than the insured’s rights would have been if he had paid the judgment and then sued his insurance company to recover the amount so paid.

      . Or the question of permission in the omnibus clause — Hanover Insurance Company v. Abchal, supra, 375 S.W.2d at 608-609; State Farm Mut. Auto. Ins. Co. v. Mid-Continent Cas. Co., 378 S.W.2d 232, 235 (Mo.App.1964).

      . Compare, however, Northwestern Mut. Ins. Co. v. Independence Mut. I. Co., supra, 319 S.W.2d at 902.

      . Compare, however, McFarland v. United States Mut. Acc. Ass’n, 124 Mo. 204, 27 S.W. 436, 439 (1894), quoted in Greer v. Zurich Insurance Company, supra, 441 S.W.2d at 30-31 —where the court stated that notice of suit and forwarding of papers is a . . condition subsequent . . . ”

      . Earlier statements made in Northwestern Mut. Ins. Co. v. Independence Mut. I. Co., supra, 319 S.W.2d at 902, were found to be erroneous. This was foretold by the Eighth Circuit in Hawkeye-Security Insurance Company v. Davis, 277 F.2d 765, 770 (8th Cir. 1960), relying on Western Casualty & Surety Co. v. Coleman, 186 F.2d 40, 44 (8th Cir. 1950), discussed in Meyers v. Smith, supra, 375 S.W.2d at 16.


author: DOWD, Judge. CLEMENS, Presiding Judge

text:
    STATE of Missouri, Plaintiff-Respondent, v. Watt DAVIS, Defendant-Appellant.
    No. 36902.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 6, 1976.
    Motion for Rehearing or Transfer Denied Aug. 18, 1976.
    Application to Transfer Denied Oct. 12, 1976.

      Ira M. Young, St. Louis, for defendant-appellant.
    Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Defendant appeals his conviction for molesting a minor with immoral intent. § 563.160 RSMo 1969. The jury fixed his punishment at two years imprisonment. We reverse.

The female victim was 13-years-old at the time of the incident. The defendant is the victim’s natural father, but he was never legally married to the victim’s mother. Although the mother had had custody of the victim since early childhood, the defendant usually had custody of the victim every other weekend.

About 4 p. m. on March 2, 1974, the defendant picked up the victim at her mother’s house. He drove her to his home to spend the night. The victim went to bed about 11 p. m. About 5 a. m. the next morning, according to the victim, defendant awakened her and forced her to have intercourse with him. Later that morning the defendant drove the victim to church services but he himself did not enter the building. Church services lasted from approximately 9:30 a. m. until 1:30 p. m. After the services the victim approached her mother and said she did not want to return to the defendant’s home, but the mother told her to go with the defendant.

Later that afternoon at defendant’s home the victim fell asleep. According to the victim’s testimony, sometime between 4 and 4:30 p. m. the defendant awakened the victim and attempted to force her into an act of oral copulation. That evening the defendant drove the victim to her mother’s home, where she informed her family about these incidents.

On March 4, 1974, a medical examination of the victim found a ruptured hymen. But there was no medical evidence of external injuries or sperm.

The defendant testified and denied improper conduct toward the victim. any

The defendant’s first point on appeal is that the trial court erred when it permitted evidence of a crime other than the one charged in the indictment. The indictment charged defendant with molesting a minor on March 3, 1974, by trying to insert his penis into the victim’s mouth. During his opening argument the prosecutor informed the jury that he would introduce evidence to show defendant had intercourse with the victim the night before the crime charged in the indictment. Defense counsel objected and moved for a mistrial. The trial court denied the motion for a mistrial, but it sustained the objection and instructed the jury to disregard the prosecutor’s remarks. Despite a continuing objection by defense counsel, the trial court thereafter permitted the victim to testify about the intercourse and permitted the introduction of the medical records.

The established rule in Missouri is that proof of the commission of separate and distinct crimes is not admissible unless such proof has some legitimate tendency to directly establish the defendant’s guilt of the crime charged. Evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive (2) intent (3) the absence of mistake or accident (4) the identity of the person charged with the crime (5) a common plan or scheme embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (banc 1954).

We hold that the evidence of the intercourse is admissible because it has a legitimate tendency to directly establish the defendant’s guilt of the crime charged. And specifically it is admissible under exception 5 of State v. Reese, supra, in that it is part of a common plan or scheme embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other.

In this case several circumstances point to the existence of such a common plan or scheme. Both the intercourse and the attempted sodomy occurred when the victim had been sent to spend the weekend with her father. Both acts occurred within a 12-hour period. Both the intercourse and the crime charged took place between defendant and the victim at the defendant’s home. Both crimes were sexual in nature. Both crimes occurred just after defendant awakened the victim, presumably because the victim would not be alert after having slept. These circumstances indicate that both sexual assaults resulted from a plan by defendant to exercise control and custody over the victim and make her the target of his sexual excesses. See State v. Torrence, 519 S.W.2d 360 (Mo.App.1975); State v. Shumate, 478 S.W.2d 328[2-3] (Mo.1972); State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765[7-8] (1953).

In deciding this point against defendant, we are mindful that the admission into evidence of separate crimes should be subjected to rigid scrutiny, particularly when the crime are those for which there is a human abhorrence. State v. McElroy, 518 S.W.2d 459[4—6] (Mo.App.1975). However, in this case we clearly perceive a logical relevancy between the intercourse and the crime charged.

Defendant’s second contention is that the trial court committed prejudicial error when it gave the following verdict directing instruction (MAI-CR No. 12.40):

“If you find and believe from the evidence beyond a reasonable doubt:
“First, that on March 3, 1974 Margaret Hamilton was 13 years of age, and “Second, that at that time and in the City of St. Louis, State of Missouri, the defendant in the presence of Margaret Hamilton indulged in a lewd and indecent act by attempting to insert his penis into Margaret Hamilton’s mouth, and took lewd and indecent liberties with Margaret Hamilton by inserting his penis in her vagina,
then you will find the defendant guilty of molesting a minor.
“However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.”

Defendant maintains this instruction was prejudicially erroneous because it required the jury to determine defendant’s guilt not only of the crime charged but also of the intercourse. We find the trial court did commit prejudicial error when it gave this erroneous instruction and we reverse and remand the cause for a new trial.

Rule 24.04 permits offenses based upon two or more acts which are part of the same transaction or two or more acts or transactions which constitute parts of a common scheme or plan to be charged in separate counts in the same indictment or information. Section 563.160, supra, and MAI-CR Number 12.40 also appear to contemplate such joinder of offenses. Two specific offenses were submitted in the instruction, molestation of a minor by intercourse with the victim and molestation by attempted oral copulation. Both crimes could have been charged in separate counts in the same indictment. However, the indictment charged only the latter offense. While the instruction given by the trial court would have been correct as to form had the indictment charged both criminal acts, it is here erroneous as submitting a separate crime in addition to the crime for which the defendant had been indicted.

The state concedes the verdict directing instruction was broader than the indictment, for the instruction obviously included an additional crime not charged in the indictment. However, even though an instruction is broader in its terms than the charge, the defendant will be denied relief unless the variance is material and prejudicial to his rights. State v. Collins, 519 S.W.2d 362[4] (Mo.App.1975).

A defendant will be prejudiced if an overbroad instruction misled the jury. State v. Daegele, 302 S.W.2d 20, 20-21 (Mo.1957). In the case here we believe the jury may have been misled in two respects. First, the jury may have been confused about the nature of the crime or crimes defendant was charged with committing. Here the defendant was charged by the grand jury with child molestation by attempting to insert his penis into the mouth of the victim. During the prosecutor’s opening statement the jury was informed they would hear evidence that the defendant had also had intercourse with the victim. But the judge then told the jury to disregard these comments. However, during the trial the victim was permitted to testify about the act of intercourse which occurred 12 hours before the crime charged. We believe this testimony was admissible for the reasons stated heretofore. Finally, the verdict directing instruction required that the jury find that defendant performed both the crime charged and the intercourse before it could convict defendant of child molestation.

Secondly, the erroneous instruction could very possibly have induced the jury to render a greater sentence. To determine guilt under the instruction, the jury had to find defendant committed two criminal acts. If the instruction had mirrored the indictment, then the jury would have had to determine only whether defendant was guilty of child molestation. The fact that the jury was required to determine whether defendant had committed two separate reprehensible acts may very well have affected the punishment meted out. The punishments, as given in the verdict directing instruction, ranged from imprisonment for 2-5 years to a fine not to exceed $500. The punishment the jury would have fixed if it had only to find whether the defendant was guilty of child molestation by attempted sodomy may well have been less than the two year imprisonment the jury set after it determined defendant had performed both the attempted sodomy and the intercourse.

The variance between the indictment and the verdict directing instruction also prejudiced the defendant in his trial preparation and trial strategy. After the indictment was handed down, defendant knew he was charged with child molestation by attempting oral sodomy with the victim. During his trial preparation defendant should have realized that the prosecution would attempt to introduce into evidence (as it successfully did) the separate crime of intercourse with the victim, relying on one or more of the exceptions listed in State v. Reese, supra. But the defendant could hardly have foreseen that he would be faced with a verdict director which would set forth the crime charged and the additional crime. The verdict directing instruction indicated that the defendant had been tried for both criminal offenses.

The state contends the verdict directing instruction did not prejudice the defendant. Since the instruction required the jury to find that the defendant had committed the two acts, and not just the one act contained in the indictment, the state says it merely assumed an added burden. We disagree.

The prosecution cites State v. Daegele, supra, in support of its “added burden” theory, but the case actually supports the defendant. In Daegele the verdict directing instruction submitted in the conjunctive the felonious taking of indecent liberties with the prosecutrix, the endeavor to remove her pants, and the specific act of exposure. The amended information charged the felonious taking of indecent liberties by the exposure but did not allege the endeavor to remove the pants. The evidence in Daegele was that the defendant had induced the prosecutrix to enter the defendant’s auto and there exposed himself after attempting to remove the pants of the prosecutrix. Both acts occurred during the commission of one crime. The acts of exposing himself and the attempted removal of the victim’s pants both occurred during a relatively short period of time during which defendant never lost control over the prose-cutrix. The Missouri Supreme Court permitted the conjunctive verdict directing instruction although that instruction was broader than the information, but the court’s reasoning is inapplicable to the case at bar. The court explained (at 26):

“We have determined that by the conjunctive submission in Instruction No. 2, the state merely assumed an added burden, and that the jury was certainly not permitted to convict on anything less or different from that which was charged in the amended information. The evidence concerning the incident in question went in without objection and the reference complained of in the instruction was not in itself prejudicial ... If the jury is not misled . . . and the state has merely assumed an added burden, the defendant cannot properly complain.” (Emphasis added).

We believe the jury in the case before us was misled by the overbroad instruction and that the verdict directing instruction contained something different (an added crime) from that which was charged in the indictment. Unlike Daegele, the uncharged crime (intercourse) occurred approximately 12 hours prior to the crime alleged in the indictment. During this interval of time, the victim was out of the defendant’s presence for several hours and in the custody of her mother. The instruction given in Dae-gele merely specified the details of one crime of child molestation.

The verdict directing instruction given in this case alleges two separate crimes committed on separate occasions. The defendant was indicted solely on the charge of child molestation by attempted sodomy and not on a charge of intercourse with a minor. Defendant’s alleged intercourse with the victim could have formed the basis of a prosecution for forcible or statutory rape under Section 559.260 RSMo 1969 or incest under Section 563.220 RSMo 1969 as well as a separate count of molestation of a minor. While we have held that evidence of the separate criminal act of intercourse is admissible as part of a common plan or scheme, this separate criminal act should not be included in the verdict directing instruction. We believe the defendant cannot be charged with one criminal offense and then have the verdict director allege an additional separate offense. “An instruction in a criminal case can be no broader than the allegations in the indictment or information.” State v. Kyle, 177 Mo. 659, 76 S.W. 1014, 1015 (1903), State v. Fennewald, 339 S.W.2d 769, 774 (Mo.1960).

To summarize, we believe that the verdict director alleged the commission of two crimes although the defendant had been indicted for only one crime. The verdict director’s incorporation of a separate crime not charged in the indictment gave undue emphasis to that separate crime and thereby prejudiced the defendant. Evidence of a separate crime may be admissible under one of the five situations noted in Reese, supra, but admission of such evidence does not permit the inclusion of the additional crime in the verdict director.

The defendant also contends that the state failed to establish venue. Inasmuch as the case is being reversed and remanded for a new trial, it is unnecessary to discuss this contention.

The judgment is reversed and the ease remanded for a new trial.

CLEMENS, P. J., and STEWART, J., concurs.

CLEMENS, Presiding Judge

(dissenting).

I dissent.

The majority opinion correctly holds that on this charge of attempted sodomy, evidence of defendant’s prior sexual intercourse with the victim was admissible. The majority opinion holds, however, that the trial court erred prejudicially in giving the verdict-directing instruction on attempted sodomy by requiring the jury to further find defendant had sexual intercourse with the victim.

I concede the evidence of this additional crime was harmful to defendant, but requiring the jury to believe that prior act of sexual intercourse, in addition to believing the charged act of attempted sodomy, imposed an additional burden on the state and logically was harmless to defendant.

I would affirm the child molestation conviction.