author: DIXON, Judge.

text:
    MISSOURI FEDERATION OF the BLIND, Plaintiff-Respondent, v. NATIONAL FEDERATION OF the BLIND OF MISSOURI, INC., and National Federation of the Blind, Defendants-Appellants.
    No. KCD 28416.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1976.

      George E. Feldmiller, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Charles M. Tureen, Blumenfeld, Kalishman, Marx, Tureen & Paster, P. C., St. Louis, for defendants-appellants.
    David Waldman, Waldman, Milligan & Lombardo, Kansas City, C. Jack McEnery, Baine & McEnery, St. Louis, for plaintiff-respondent.
    Before PRITCHARD, C. J., and SHAN-GLER, DIXON, SWOFFORD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   DIXON, Judge.

An appeal from a judgment of civil contempt. The original suit was between plaintiff Missouri Federation of the Blind and National Federation of the Blind of Missouri, Inc. In this litigation, the National Federation of the Blind, Inc., a District of Columbia corporation, intervened. An injunction was issued by the circuit court which enjoined defendant from the use of the name National Federation of the Blind of Missouri, Inc. The earlier trial court action was affirmed by this court in an opinion reported in 505 S.W.2d 1. After the mandate issued, the name of defendant was changed to National Federation of the Blind. This appeal arises from the plaintiff’s motion for and an order to show cause why defendant should not be held in contempt. The trial court found the defendant guilty of contempt of its prior injunctive order. The portion of the decretal language in the injunction pertinent to the issues on this appeal is as follows:

“IT IS ORDERED AND ADJUDGED that defendant ... be perpetually enjoined and restrained . . .(c) that defendant be permanently enjoined from using any combination of the following words: Missouri, Federation, and Blind, unless defendant wishes to revert to the use of its prior name, The Progressive Blind of Missouri.”

The trial court levied a fine which was prospective in nature accumulating on a daily basis upon the continuance of the use of the name the defendant sought to use. A stay was issued and a variety of issues are posed as to the propriety of the fine and the stay which need not be decided if, upon the primary contention of the defendant, it is determined that the injunction has not been violated.

That primary issue of the fact of a violation of the injunction is upon two grounds. The defendant and the defendant interve-nor, which continues as a party and an appellant, without objection, contend first that the trial court erred in its construction of Section 417.150(2) RSMo 1969. The argument is that the defendant intervenor, The National Federation of the Blind, Inc., has a prior right in the use of that name and the finding of the trial court that the defendant, an “affiliate” and “member,” can be denied the permissive use of the intervenor’s name because it is a separate corporation is in error.

The plaintiff makes no response in its brief to this point, and so this court is without benefit of the views of the plaintiff with respect to the assertion. The statute in question in relevant part is as follows:

“In all cases where two or more such corporations . . . claim the right to the same name or names substantially similar . . . , the organization which was first organized and used the name and first became incorporated . . . under the laws of the United States or of any state . shall be entitled in this state to the prior and exclusive use of such name, and the rights of such . . . corporations and of individual members shall be fixed and determined accordingly.” Section 417.150(2) RSMo 1969.

The thrust of the contention is that the last phrase “and the rights of said societies, associations, corporations or organizations and of their individual members shall be fixed and determined accordingly,” gives rise to a right in the defendant to the use of this name as a “member” of the National Federation of the Blind. The defendant here, upon the stipulated facts in the prior appeal, was an affiliate and integral part of the National Federation of the Blind, Inc. and its members were members of the in-tervenor.

The pertinent portions of the stipulation are:

“7. That the NFB is composed of 45 affiliated organizations known as the state affiliates and its members consist of the members of each such affiliated organization and other blind persons; .
“8. That since the date of its incorporation to the date hereof, the NFB has used its corporate name, ... to identify itself, and certain of its affiliates and the members thereof. That continuously since its incorporation, the NFB is and has been the sole and exclusive owner of and solely and exclusively entitled to use said name, . . . .”

The exhibits in the record relating to the incorporation of the intervenor also refer to the status of affiliates. The original certificate of incorporation of the National Federation of the Blind filed in the District of Columbia in 1949 provided among the objects of the corporation were “to accept into fraternal membership blind individuals and affiliate organizations composed of and controlled by the blind.” The constitution of the National Federation of the Blind, Incorporated, provides for a definition of affiliates and admission to membership in the Federation and provides for the casting of the vote of a state by its affiliate member in the national organization.

The prior opinion dealt with a different issue as to the same statute (505 S.W.2d at 8-10).

There the National Federation of the Blind, Inc., which was organized as a District of Columbia corporation in 1949, intervened. The intervenor sought in that earlier litigation to prevent the present plaintiff from utilizing the name, Missouri Federation of the Blind, as being an improper simulation of intervenor’s name and viola-tive of Section 417.150(2) which intervenor claimed gave it protection of its admittedly prior use. The prior opinion, tacitly assuming that the statute protected intervenor and assuming likewise that the similarity was sufficient to confuse, held that the intervenor had been guilty of laches which barred it from claiming the protection of the statute.

A different aspect of that statute is presented on this appeal. In this case, defendant claims that it is a member of the National Federation of the Blind, interve-nor in the prior case, and that as a “member” is entitled to the protection of the statute as to use of the name.

In view of the broadness of that claim, however, it need not be decided that the defendant’s use of the name National Federation of the Blind is authorized by reason of Section 417.150, although it seems clear that the trial court erroneously concluded that the mere fact of separate incorporation would deny such a result. Organizations on a national basis might be corporate in character and be composed entirely of corporate members whether such corporate members were geographically identified by states or simply were members of similarly situated enterprises. Thus, most trade associations would consist of a parent corporation to which a wide variety of corporations might belong.

In any event, the holding in the pri- or opinion that the National Federation of the Blind could not successfully prohibit the plaintiff’s use of its corporate name does not require a holding here that the National Federation of the Blind be barred from permitting the use of its name by another organization. To hold that it was barred by our prior opinion from doing so would do more than protect the Missouri Federation of the Blind in the use of its name; it would permit the Missouri Federation of the Blind to impinge upon the right of the National Federation of the Blind to the use of that name in Missouri. In different circumstances, it might be necessary to reach or decide the question of the meaning of the words “individual members” in subsection 2. In the circumstances of this case, it is sufficient to hold that Section 417.150(2) permits intervenor to use the corporate name in Missouri and as a concomitant of that right to permit its use by others.

The holding above does not dispose of the primary issue in this case which is the propriety of the finding of contempt by the circuit court. That issue turns on the construction to be placed upon the decree.

The positions of the parties on this branch of the case are well defined. Plaintiff contends that the decree prohibits the use in combination of any two of the three words, Missouri, Federation and Blind, while defendant contends all three must appear before the decree is offended. Defendant extends this argument by asserting that if the language of the injunctive order is doubtful or ambiguous, it will not support a contempt citation.

The prior opinion did not reach or decide any issue of the construction to be placed upon the decree. The dispute in the prior case was the propriety of the trial court’s order, vis-a-vis, the then-corporate name of the defendant, NFB of Missouri. The language of the prior opinion as to the similitude of the names must be read in the context of the then-presented facts.

The construction of the lower court decree sought by the plaintiff would seem on its face to be too broad. If the construction urged were adopted, combinations of two of the three words can be formed which would have little or no tendency to confuse the public. Among names which might be proscribed under that interpretation would be National Federation of the Sightless Handicapped, National Blind Association, Blind Association of Missouri.

Recognized principles require that the decree be construed as the defendant contends. A decree which is ambiguous and uncertain will not support an order of contempt. Magel v. Gruetli Benevolent Soc., 203 Mo.App. 335, 218 S.W. 704 (1920). Likewise, the decree must be sufficiently definite to protect the complaining party and at the same time not be so general as to unjustly circumscribe the rights of the party enjoined. Huegel v. Kimber, 359 Mo. 938, 224 S.W.2d 959, 963 (1949).

Since the task here presented is the construction of a judgment, general rules of construction apply and words and clauses must be construed in accordance with their natural import. Keiser v. Wiedmer, 283 S.W.2d 914 (Mo.App.1955). And a judgment will be construed with reference to the record as a whole. Chuning v. Calvert, 452 S.W.2d 580 (Mo.App.1970).

So considered, the plain language of the decree presents no issue of ambiguity. “[A]ny combination of the following words” must in ordinary usage mean a combination of the three words enumerated. The record upon which this judgment rests, including our prior opinion, demonstrates that the meaning of the decree is that all the relevant words must be contained before the decree is violated. The defendant in its initial brief filed in this court asserted the proposition now espoused by the plaintiff. To that argument, that the decree was overly broad because prohibiting any combination of two or more of the three words, this court held that the decree was “sufficiently defined” to withstand that attack.

The trial court’s decree must be taken to be an injunction against the use of the three words in combination. This the name claimed by defendant does not do. The defendant’s use of National Federation of the Blind is not violative of the decree.

Plaintiff makes some contention that defendant’s addition of a parenthetical phrase (a Missouri corporation) on the letterhead supports the action of the trial court because three of the operative words appear. The parenthetical phrase is in very small type and could not be considered as part of the corporate name, it being clearly intended as a description of the location of the corporation named. Such additional descriptive material has been held not be be part of the corporate name. Blades v. Cinder Block Co., 10 S.W.2d 319, 320 (Mo.App.1928):

“[T]he customary phrase, ‘of a location,’ is not to be considered as a part of the corporate name, but rather as descriptive of the situs of the corporation itself, so that the omission or addition of such phrase is generally to be regarded as immaterial.”

The finding of contempt and the fine levied in accordance therewith are erroneous and should be reversed. So holding, this court need not address the contentions concerning the amount of the fine and the stay.

All concur.


source: Caselaw Access Project

author: PRITCHARD, Chief Judge.

license: Public Domain

text:
    In re the MARRIAGE OF C_S_B_, Respondent, and C_M_B_, Appellant.
    No. KCD 28537.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1976.

      Floyd L. Sperry, Jr., M. Sperry Hickman, Inc., Independence, for appellant.
    Andrew A. Marsh, Terence L. Connaugh-ton, Kansas City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

Appellant former husband of respondent asks for review of the order of the trial court awarding support for minor children and attorney fees to respondent, and of the award of custody of the minor children born of the marriage. He contends that there was no evidence that appellant had any property income or ability to pay the awards, and the only evidence was that he could not work because of medical problems and that he had no income or property, and that there was no likelihood that he could become employed in the immediate future. [Point I erroneously denominates appellant as respondent which was his designation as a party in the trial court.] As to the custody award, appellant says it was against the weight of the credible evidence in that respondent admitted to residing in the same home with another man to whom she was not married up to about November, 1975, all while the children were present in the home. He says this conduct showed respondent to be an unfit person to have the custody.

The decree of dissolution of the marriage was on December 9, 1975, and no issue is presented as to its propriety.

The two children born of the marriage were a girl, born June 9, 1973, and a boy, born July 17, 1974. The court awarded respondent $20.00 per week per child for child support and an attorney fee in the amount of $350.00 was adjudged against appellant.

The evidence bearing upon appellant’s income and ability to provide support payments for the children, and to pay attorney fees is this: The property which appellant owned prior to the marriage had been foreclosed by the time of trial. All he owned was a 1965 Chevrolet pickup truck which was not in his possession. As to his physical condition, appellant testified that he was unable to work at the time of trial and had not worked for two years. He had, in the past, operated heavy equipment, but because he had blackout seizures in the past, he was afraid to get on a tractor. He had been to see doctors at the University of Missouri Medical Center, and according to a letter from one of the medical staff there dated June 19,1974, skull x-rays indicated a generalized thickening of the bones which may be “associated with diseases which are prone to cause seizures or blackouts.” This was, of course, almost 1½ years prior to trial, and there was no clear medical proof that appellant was unable to work in December, 1975. Upon being questioned by the court, appellant admitted that if he were given custody of the children he could not personally support them, but would turn them over to his parents for support. The parents had six other school-age children to support on an income in excess of $12,000 in 1975.

There was testimony concerning a sworn statement of appellant filed in the trial court concerning his earnings and expenses. That statement was not filed in this court, but the original file of the trial court has been obtained. The statement shows appellant’s regular income as self-employed to be $125.00 weekly, $500.00 per month, and that there was no tax return filed for the last year because of illness. Appellant testified at trial that he was not earning $500.00 per month. As expenses, the statement reflects $100.00 per month rent; car operation $40.00, and others (including $125.00 income tax) of $345.00, a total of $485.00 per month. These expenses were not challenged by respondent as to their reasonableness or accuracy, and they show that appellant had a surplus of $15.00 per month.

There is no contention by appellant that the children are not in need of support funds, or that the amount of the award is excessive. All he says is that the evidence did not show that he had property income or regular income to support a finding that he had the ability to pay it. He couples this contention with the evidence showing he could not work. In the posture of the record presented, appellant’s contentions must be sustained. His ability to pay the award is the prime consideration. Page v. Page, 516 S.W.2d 537, 540[3-6] (Mo.App.1974), where it is held that the reasonableness of child support is determined by the financial condition of the husband-father at the time the award is made, and the proper measurement thereof is the capacity of the husband to pay, “and both his present and past earnings are evidence of such capacity. (Citing cases).” See also Fugate v. Fugate, 510 S.W.2d 705, 706[2-4] (Mo.App.1974); McM. v. McM., 506 S.W.2d 14, 16[4, 5] (Mo.App.1974). The same consideration applies to the allowance of attorney fees. S.G.E. v. R.L.J., 527 S.W.2d 698, 704 (Mo.App.1975). The awards of attorney fees and child support are not supported by substantial evidence. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The children here are of very tender years. There should be further proceedings to determine what amounts of child support appellant can be able to pay, and an award of child support in some amount should be made so as to give a basis for later modification upon a showing of changed circumstances. For this purpose, the trial court is authorized to take further evidence as to appellant’s then ability to make payments.

As to the child custody issue, the testimony of respondent was that she had an adequate home in which to care for the children, and had done so, except for 3 months, during the separation. Appellant claims that respondent had an adulterous relationship with another man prior to the dissolution. Respondent denied this. There is no evidence that any such relationship, even if true, had any adverse effect on these two very young children. The trial court did not err in awarding custody of the children to respondent. Murphy v. Carrón, supra.

That part of the judgment awarding custody of the minor children is affirmed. That part of the judgment awarding child support and attorney fees is reversed and the case is remanded for further proceedings as to those issues.

All concur.


author: SIMEONE, Judge.

text:
    STATE ex rel. EMCASCO INSURANCE COMPANY, a corporation, Relator, v. The Honorable Fred RUSH, Judge of the Circuit Court, County of St. Charles, State of Missouri, Respondent.
    No. 38149.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Jan. 4, 1977.

      Evans & Dixon, Sam P. Rynearson, St.. Louis, for relator.
    Bruntrager & Bruntrager, P. C., St. Louis, for respondent. : '
   SIMEONE, Judge.

I

This is an original proceeding in mandamus brought by relator, Emcasco Insurance Company (Emcasco), to compel the respondent judge to vacate his order of April 9, 1976, by which he sustained a motion to add parties to a declaratory judgment action previously filed by relator. We have jurisdiction. Article V, sec. 4, Mo.Const. We issued our alternative writ on June 18,1976. We now make our alternative writ heretofore issued absolute.

II

The facts are complex and the legal issues raised are difficult to resolve.

On January 30, 1975, Emcasco issued its Family Automobile Policy of Insurance to Mr. Donald C. Carter and his wife, Shirley. The policy insured a 1970 Dodge automobile owned by the Carters and provided for liability insurance and medical payments coverage. The policy was in full force and effect on March 23,1975. On that date the Dodge was being driven by Charles Stephen Davis and was involved in a one-car accident. There was some indication that at the time of the accident Davis was in the employ of Henry Steve Kirchner d/b/a Levi Standard Service Station. Several persons were passengers in the automobile at the time of the accident. They were (1) Glen-non C. Halter, husband of Debra Kay Halter and the son of Charles and Mildred Halter, (2) Raymond James Miller, and (3) Larry Michael Donnelly. The driver, Charles Stephen Davis, died on March 24, 1975, as a result of injuries sustained in the accident. Glennon C. Halter also died as a result of injuries received in the accident on March 23, 1975. Donnelly and Miller were injured.

Apparently prior to the filing of any formal litigation, the relator-Emcasco, in December, 1975, filed a declaratory judgment action in St. Charles County seeking a declaration concerning its rights and liabilities. The declaratory judgment action named as defendants (1) Larry Michael Donnelly, (2) Raymond James Miller, (3) the parents of Glennon C. Halter, Charles and Mildred Halter, (4) Debra Kay Halter, and (5) Andrew McColIoch, administrator of the estate of Charles Stephen Davis. The petition alleged the issuance of the policy, the accident, and named the passengers — Donnelly, Miller and Halter — who received injuries or died. It alleged that Debra Halter had asserted a claim for her husband’s death and alleged that as a result of the accident Emcasco “. . . is or may be exposed to claims for bodily injury and for medical expense . . . ” to Miller, Donnelly and McColIoch. The petition further alleged that, although the policy included a clause extending coverage to a person using the vehicle with the permission of the insured provided the operation is within the scope of the permission, Davis was not using the vehicle with the permission of the Carters and was not using the vehicle within the scope of permission extended by the Carters. As a result, Emcasco contended that the policy of insurance did not insure the ". . . liability of Charles Stephen Davis, if any . . . and [did] not obligate plaintiff for medical payments.” In effect, Emcasco contended in its declaratory action that it was under no obligation to defend the estate of Davis and that the defendants be barred from asserting any claims against it on account of injuries or medical payments arising out of the accident. It therefore sought a judicial declaration that (1) the policy of insurance issued to the Carters . . [did] not apply to the accident . insofar as the liability and medical payments coverages are concerned;” (2) it was . . under no obligation to defend the estate of Charles Stephen Davis from any claims or suits arising out of the accident; and (3) the defendants be barred and enjoined from asserting any claims against it on account of “bodily injuries or medical payments” sustained at the time of the accident. The Carters were not named as defendants in this declaratory judgment action.

Sometime after the declaratory judgment action, (1) Debra Kay Halter brought suit in February, 1976, for the wrongful death of her husband against the administrator of Davis’ estate, Donald C. and Shirley Carter and Kirchner (Levi Service); (2) Raymond James Miller, through his next friend, brought action probably in February, 1976, for personal injuries against the administrator of Davis’ estate (McColloch), Henry Steve Kirchner (Levi Service) and the Carters; and (3) Lawrence Michael Donnelly commenced an action sometime prior to March 23, 1976, for personal injuries.

On February 20, 1976, Raymond James Miller filed in the Emcasco declaratory action two motions “For Joinder Of Persons Needed For Adjudication.” One motion sought to add State Farm Mutual Insurance Company which is not involved in this proceeding. The other motion, which causes the controversy in this proceeding, sought to add in the declaratory judgment action Donald C. and Shirley Carter as parties defendant because “. . . they ought to be party defendants if there is to be a full and complete determination of the controversy . . ..’’An affidavit in support of this motion stated that at the time of the accident Emcasco had in effect a contract insuring the Carters and that the plaintiff (Emcasco) is seeking to avoid defending the Carters and seeking to avoid responding in damages which might be rendered against them; hence, the affidavit stated that the Carters have an interest in the outcome of the declaratory judgment action, and, if a disposition of the action would be made in their absence, such disposition “ . might impair and impede their ability to protect their interest.”

In March, 1976, Emcasco, because of suits filed by Miller and Donnelly alleging injuries as a result of the accident and which joined Henry Steve Kirchner (Levi Service) as a defendant, moved to add Kirchner as a party defendant in the declaratory judgment action and sought leave to file an amended petition of declaratory judgment to include Kirchner d/b/a Levi Service.

On April 9, 1976, the three separate motions (two by Miller and one by Emcasco) were heard by respondent. Miller’s motion to add State Farm was sustained, Emcas-co’s motion to add Kirchner (Levi Service) was sustained, and, over objection, Miller’s motion to add the Carters was also sustained. Since Kirchner was added as a party, Emcasco filed a First Amended Petition for a declaratory judgment adding Kirchner as a party, and later filed its Second Amended Petition adding State Farm Mutual Insurance Company, the insurer of Kirchner (Levi Service).

At the time therefore of filing its petition for a writ of mandamus in this court on May 19, 1976, Emcasco sought its declaration of rights against (1) Larry Michael Donnelly, (2) Raymond James Miller, (3) Charles and Mildred Halter, (4) Debra Kay Halter, (5) Andrew McColloeh (Davis’ administrator), (6) Henry Steve Kirchner (Levi Service), and (7) Kirchner’s insurer, State Farm. The Carters were not made parties defendant in the original declaratory judgment action by Emcasco but were added upon the motion of Raymond James Miller.

Ill

Emcasco filed its petition seeking mandamus in this court to order the respondent to vacate its April 9th order adding the Carters as necessary parties to the declaratory judgment action. In its petition for mandamus it alleged the above facts and contended that Miller’s motion to add the Carters and the affidavit in support thereof “. . failed to state any grounds ... to show any justiciable controversy between . . .’’it and the Carters. It contended that the only question as to declaratory relief was “. whether permission was granted for the use of the automobile . . . ” to Davis when it was involved in the accident and that no declaratory relief was sought by Emcasco against the Carters. The petition alleged that the declaratory action stated no claim against the Carters, and that the Carters have no interest in the outcome of the declaratory judgment action since no relief is sought as to them and no declaration is sought denying them coverage under their policy. Emcasco contended further that it believed that the defendants (or at least some of them) in the declaratory judgment suit intended to “raise the point” that the Carters, if they are joined in accordance with the respondent’s April 9th order, would not be competent to testify as to whether or not permission was granted by them to Davis under the provisions of the so-called Dead Man’s Statute, § 491.010, RSMo. Emcasco contended that the Carters would not be precluded from testifying but, by adding the Carters as parties, a “false issue” would be raised which would impede the determination of the declaratory judgment action and result in further extended litigation. For all these reasons, Emcasco alleged that the Carters “have no interest in the outcome of the declaratory judgment” action and since they are not “necessary” parties there has been a “mis-joinder.” The trial court therefore exceeded its jurisdiction in sustaining Miller’s motion to add the Carters.

After suggestions in support of and in opposition to the petition for mandamus and after relator’s reply, we issued our alternative writ on June 18, 1976.

IV

In its brief relator makes the following points: (1) mandamus is a proper remedy to compel the respondent to vacate the order sustaining the motion to add the Carters to the declaratory judgment action because (a) they have no interest in the outcome of the litigation, (b) they are not “necessary” parties, and (c) the respondent exceeded his lawful jurisdiction and abused his discretion in adding the Carters; (2) the respondent abused and exceeded his jurisdiction by sustaining the motion of Miller to add the Carters as parties to the declaratory action because as a matter of law they are not “necessary” parties since they will not be affected either by (a) the outcome of the issue as to whether permission was granted to Davis or (b) the outcome of the issue as to whether coverage is excluded under the “automobile business” exclusion; and (3) the ruling of the respondent was erroneous because no justiciable controversy exists between Emcasco and the Carters since the declaratory judgment action is one to determine only whether Davis had permission of the Carters to operate the automobile and to determine whether Davis was using the automobile in an “automobile business” under the exclusion clause. A judgment in the declaratory action on either of these issues therefore would have “no bearing on coverage owed to” the Carters.

Relator argues that under Rule 52.04 full and complete relief can be accorded between Emcasco and those parties already the defendants in the declaratory judgment suit without the Carters, and the resolution of the issue of permission does not require the presence of the Carters. They argue that Rule 52.04 requires joinder of an additional party only if he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may impair or impede his ability to protect that interest. Since Em-casco has not denied coverage to the Carters or refused to defend them in any suit filed against them and admitted that the policy was in effect, Emcasco argues that the Carters have no interest to protect and have no interest in the outcome of the litigation, hence, their interest cannot be impaired or impeded. Relator relies on State v. Vardeman, 409 S.W.2d 672 (Mo. banc 1966), and other decisions, and argues that where the declaratory judgment is filed merely to determine the issue of permission, “ . . . then the named insured is not a necessary party . . . Emcasco concludes:

“Thus, it is clear from an analysis of the Civil Rules and cassis that the insured under a policy of insurance is a proper and necessary party only in a situation where the insurance company is attempting to deny coverage to the named insured under the policy, and is not a proper and necessary party in the situation involving a question of permission granted under the omnibus clause where the only contention is whether a third party has permission to operate the automobile and coverage was thus extended to the third party. In such a situation the insured has no interest in the outcome of the controversy, there is no controversy existing between the named insured and the insurance company subject to declaratory relief, and the named insured is thus not a proper party and should not be joined in the action.”

As to the issue concerning the use of the vehicle in the automobile (service station?) business, relator argues that the exclusion would not apply to the Carters because this exclusion . . does not apply to the named insureds . . .,” therefore any declaration as to this issue could have no effect on the rights of the Carters. Such exclusion is not applicable to them and therefore they have no interest in the outcome of that issue, hence, are not “necessary” for a determination of the declaratory action.

Lastly, relator argues that, while Rule 87.04 requires that all persons who have or claim any interest which would be affected by the declaration shall be made parties, the Carters have no interest in the outcome of the declaratory judgment since Emcasco admits coverage for the Carters, admits it must defend them in any action against them, and admits it must afford coverage for them should they be subject to liability. Hence, there is no controversy between relator and the Carters.

The respondent, on the other hand, contends in its brief that (1) mandamus is not a proper remedy, (2) the respondent acted within the proper limits of his judicial discretion in sustaining the motion to add the Carters “. . . for the reason that if not ‘necessary parties’ under Supreme Court Rule 52.04 they are at least' ‘permissive parties’ under Supreme Court Rule 52.05” and (3) the issue of permission necessarily involves an “adverse interest” of the Carters creating a justiciable controversy between Emcasco and the Carters which is ripe for adjudication.

V

The precise issue thus presented by this proceeding, as we perceive it, is whether the trial court exceeded its discretion in adding the Carters as “necessary” parties to the declaratory judgment action when Emcasco (1) admits coverage under the policy to the Carters, (2) admits that it must defend the Carters even as to false or fraudulent claims, (3) had undertaken a defense of the Carters in the suits filed by the injured or dead passengers, (4) has not joined the Carters in the declaratory judgment suit, and (5) has not sought a declaration or relief against them. The only issue in the declaratory judgment action is whether the Carters extended permission to Davis to operate the vehicle. The issue is not whether the Carters are “proper,” “necessary” or “indispensable” parties in a situation where it is alleged that the policy is void, or that a provision has been breached, or where the insurer contends that the insureds are not entitled to coverage.

Or, to state the issue somewhat differently, where (1) the insurer does not deny coverage to the insured, (2) the insurer affords a defense to the insured on suits filed against the insured, and (3) the only issue is whether the insured gave permission to an operator of the vehicle so that coverage may be afforded the permittee, are the insureds [the Carters] “necessary” parties to a declaratory judgment action filed by the insurer to determine its rights and liabilities under an insurance liability policy?

VI

Fed.Rules Civ.Proc. 19 and its Missouri counterpart, Rule 52.04, are the modern procedural devices to solve the age-old complex issue of when parties should or must be joined or added to pending litigation in order to have a complete determination of the controversy. Rule 19 and Rule 52.04 present a new approach to this age-old question. Rule 52.04 deals with “necessary” and “indispensable” parties only. It does not deal with “proper” parties under the permissive joinder rule, 52.05. The question of adding or joining parties is a different one from permissive joinder or such modern procedural devices as third party practice. At one time, the general principle dealing with adding parties was as stated in Shields v. Barrow, 17 How. 130, 15 L.Ed. 158 (1855). There, in a rescission ease, the Supreme Court of the United States attempted to categorize persons who should or must be added to the litigation:

“ . . . Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are commonly termed necessary parties; but if their interests are separable from those of the parties before the court so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties. . . .”15 L.Ed. at 160.

“Indispensable” parties were denominated as:

“ . . . Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.” Ibid.

Prior to the modern approach, the older rules (both equity and prior Rule 19, F.R. C.P. and Rule 52.04 V.A.M.R.) tended to emphasize the classification of parties as “necessary” or “indispensable.”

The new rule requires various steps in the process to determine whether a person or persons should or must be added to pending litigation. Under the modern Rule 52.04, subdivision (a) deals with persons who should be joined if feasible, and subdivision (b) then deals with the determination which is to be made if joinder is not feasible under subsection (a). The emphasis under the new rule is no longer on whether a party is to be categorized as “necessary” or “indispensable” but the emphasis is placed on pragmatic considerations in each individual case. The first step in the escalation process is the determination of whether the absent party or parties should be joined if feasible under the criteria of Rule 52.04(a).

If such a party meets the criteria of Rule 52.04(a) and is subject to the jurisdiction of the court, he should be made a party. If he cannot be made a party, then the court must determine whether to proceed in his absence or whether the action is to be dismissed. The new emphasis under the modern rule requires that the decision be made upon “pragmatic considerations” to determine whether the specific case may proceed in the absence of a party or whether the action is to be dismissed. In making such a determination, various factors are to be considered as outlined in subdivision (b), Rule 52.04. The new rule

“ . . . commands the courts to examine each controversy to make certain that the interests really exist. To say that a court ‘must’ dismiss in the absence of an indispensable party and that it ‘cannot proceed’ without him puts the matter the wrong way around: a court does not know whether a particular person is ‘indispensable’ until it has examined the situation to determine whether it can proceed without him.” Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 743, 19 L.Ed.2d 936 (1968).

Our Supreme Court recently has had the opportunity and occasion to discuss the new approach relative to nonjoinder and dismissal. In Kingsley v. Burack, 536 S.W.2d 7 (Mo. banc 1976), the court stated that

“[t]he rule proceeds on the basis that a person may be conceptually necessary but nevertheless allows the suit to proceed unless the absent party is pragmatically indispensable in the particular case. Whether or not a person is an indispensable party must be determined by applying the criteria of the rule, and the finding of indispensability is the end result— not the starting point.” Kingsley v. Burack, supra, 536 S.W.2d at 11.

Under the modern approach, therefore, it must first be determined under Rule 52.04(a) whether the absent person is to be joined and, after it is determined that he should be so joined, then the particular case must be examined in the light of the factors in subdivision (b) to determine whether the action may proceed in the absence of the nonjoined party or is to be dismissed. Tested by these modern principles, we hold that the Carters are neither “necessary” nor “indispensable” parties and should not be added to the declaratory judgment action.

In this proceeding, the Carters are surely not “indispensable” parties. Their rights are not so entangled with others so that the Court cannot grant relief in the declaratory judgment action. Rather we deal here, unlike Kingsley v. Burack, supra, with the first step in the process — whether, under subdivision (a) of Rule 52.04, the Carters, the absent persons, are to be joined if feasible and are therefore “necessary.”

Rule 52.04(a) is applicable when nonjoin-der would have either of the following effects: (1) it would prevent complete relief from being accorded among those who are parties to the action, or (2) the absentee “ ‘claims an interest relating to the subject matter of the action and is so situated’” that his absence from the action will have a prejudicial effect on his ability to protect his own interests or will ‘“leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations.’ ” 7 Wright & Miller, Federal Practice and Procedure, § 1604, p. 33 (1972).

The Carters need not be joined under 52.04(a)(1) since complete declaratory relief can be accorded among those already parties to the action if the Carters are not joined. The only issue to be decided in the declaratory judgment action is whether or not the insurance policy covered Davis at the time he was involved in the accident. There is no question that the Carters were covered by the policy, and they need not be joined as parties defendant in order to resolve the issue of whether Davis was also covered by that policy.

The Carters also need not be joined under 52.04(a)(2) since they have no sufficient “interest relating to the subject of the action.” As we read Rule 52.04(a)(2) it requires that a person shall be joined if he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may have the effects set forth in 52.04(a)(2)(i) and (ii). The language is in the conjunctive. An “interest” which compels joinder does not include a mere consequential, remote or conjectural possibility of being in some manner affected by the result of the original action. It must be such a direct claim upon the subject matter of the action that the joined party will either gain or lose by direct operation of the judgment to be rendered. Bunting v. McDonnell Aircraft Corporation, 522 S.W.2d 161, 169[12-14] (Mo. banc 1975) (quoting from State v. Vardeman, supra, 409 S.W.2d at 677).

Under the principles above, the Carters are not “necessary” parties. Under Rule 52.04(a), complete relief can be accorded among those who are already parties to the proceeding. The Carters are not so situated that the disposition of the declaratory judgment action will, as a practical matter, impair or impede their ability to protect their interest in the policy or leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of any claimed interest of the Carters.

The declaratory judgment action has only one goal — to determine whether or not Davis had permission to use the vehicle by the Carters and was thus afforded coverage under the omnibus clause. If that issue is determined in favor of the insurer, that ends the issue, but if it is found that Davis did have permission, that does not end the matter as to the insureds — the Carters — but that issue can still be litigated in the subsequent or pending suits against them; hence, any fixed limitations in the policy by application of the proceeds to Davis would not prejudice the Carters in subsequent litigation.

Our conclusion that the Carters are not “necessary” parties to the declaratory judgment action is consistent with authorities in other jurisdictions. Authorities have held that a named insured is neither a “necessary” nor “indispensable” party to a declaratory judgment proceeding where the insurer does not deny coverage to its insured and affords, under its policy, a defense to the insured against claims by third parties.

In Northwest Cas. Co. v. Kirkman, 119 F.Supp. 828 (M.D.N.C.1954), the insurer brought a declaratory judgment action against the driver of the insured vehicle and a pedestrian who was injured. The insured was not made a party to the action. The sole purpose of the suit was to determine whether the insurer was obligated to defend the driver. The federal court would have jurisdiction unless the insured was determined to be an indispensable party. The court observed that the suit did not seek an adjudication on the question of the insured’s liability to the injured party but sought only a determination of whether the insurer was required to defend the driver. The insurer conceded its obligation to defend the insured. The court held that the action sought only a determination of whether the insurer was required to defend the driver against claims. “ . . . The determination of this question presents a justiciable controversy between the insurance company and the alleged additional insured and the injured claimants. The named insured is not a necessary or indispensable party.” 119 F.Supp. at 830.

In Glens Falls Indemnity Co. v. Fredericksen, 8 F.R.D. 55 (D.Neb.1947), the insurer brought a declaratory judgment action against the estate of a deceased and others for a declaration absolving the insurer of its obligation to defend suits. The insurer issued its policy to a bank. The policy contained an omnibus clause. An employee of the bank drove the vehicle and was involved in a collision. There were two passengers in the vehicle. Suits were instituted against the bank and the driver. The insurer brought a declaratory judgment action to determine the issue of permission of the driver. The defendants filed a motion to dismiss on the ground that the bank (the insured) was not a party to the proceeding and that the bank was an indispensable party to the action. The court was of the opinion that the bank was not an indispensable or necessary party to the action. No controversy existed respecting coverage of the bank; the only controversy was between the insurer and the driver.

“ . . . The bank, itself protected under the policy in any event, is not involved in or concerned about any dispute between the plaintiff [insurer] and [the driver’s] personal representative touching [the driver’s] coverage. The parties really interested and participating in the controversy are before the court.” Glens Falls Indemnity Co. v. Fredericksen, supra, 8 F.R.D. at 59.

It was the court’s conclusion that the bank was not a necessary party defendant in the action because

“ . . .in this case, the court, without the presence before it of the bank, will be able completely and finally to adjudicate and determine the only controversy inspiring the proceeding, as to all parties having even the slightest real interest in that controversy. Those persons are already here.” 8 F.R.D. at 60.

In Ohio Casualty Ins. Co. v. Maloney, supra, the insurer sought a declaratory judgment and the only question was whether the insured’s employee, as operator of a vehicle, was covered under the omnibus clause. The employee was employed by a dairy company. He was hired to deliver milk, but one day after completing his duties, without the knowledge of the dairy, took one of his employer’s trucks and transported a quantity of beer to a picnic. While returning he was involved in a collision which resulted in injuries to certain defendants in the declaratory judgment action. It was argued that the cause should be dismissed because the employer was not made a party. The court thought

“ . . . it is sufficient if those persons be joined as parties defendant with whom the plaintiff has an actual controversy. . In the instant case, there is no controversy between the plaintiff and the [dairy]; neither is the proceeding aimed at adjudication of any rights as between any of the defendants and the [dairy]. Such rights, if any, will be unaffected by the judgment rendered in this case. The controversy being, as alleged in the complaint, only as to whether or not [the driver] as operator of one of the trucks of the [dairy], which was insured by the plaintiff, is covered and protected by the terms of the insurance policy, the judgment rendered in this case will settle that question and no other.” Ohio Casualty Ins. Co. v. Maloney, supra, 44 F.Supp. at 314.

Respondent relies on several authorities which, he contends, support his argument that the insureds — the Carters — are “necessary” parties to this proceeding. These authorities are not dispositive of this proceeding. Several of these decisions dealt with the question whether the federal courts have jurisdiction of the subject matter based on diversity of citizenship. They each dealt with the proper alignment of parties to determine jurisdiction of the court based on diversity. In Boyle, for example, the insurer sought a declaratory judgment under a policy of insurance and to enjoin the prosecution of actions commenced in a state court against the insured. The action was brought against the claimants and the insured as defendants. There was no bona fide controversy between the insurer and the insured as to the meaning or coverage of the policy; the coverage was not in dispute and the insurer admitted its obligation to defend the insured. The precise issue was whether the insured was to be aligned with the claimants so that jurisdiction existed in the federal system, or whether the insured was to be aligned with the insurer which would defeat jurisdiction of the subject matter. These decisions held that, where the insurer and the insured have the same interests, the fact that the insurer attempts to join the insured on the same side of the controversy as the claimants so as to have complete diversity does not give the federal courts jurisdiction of the subject matter. If there exists a bona fide controversy over the meaning or coverage of the policy, then the insured is an indispensable party to any suit to settle that controversy.

Home Fire & Marine Ins. Co. v. Schultz, supra, also relied upon by respondent, is not dispositive of the issue here. There the insurer sought declaratory judgment against its insured and the party injured to establish that the insured had breached the cooperation clause of the policy. In that instance the insured was not only a necessary party but also an indispensable party.

Neither is Auto Mut. Indemnity Co. v. DuPont, supra, controlling in this proceeding. In DuPont it was held that the insured was an indispensable party to a proceeding brought by the insurer where the insurer sought to have the policy declared void for breach of a condition and to declare that the policy was not in force at the time of the accident. Obviously, in such a situation, the insured is a necessary party for his rights would be affected.

Certain language in Provident Trades-mens Bank & Trust Co. v. Patterson, supra, may give credence to the respondent’s position that the Carters are “necessary” parties for a complete determination of Emcas-co’s declaratory judgment controversy. In that decision, after certain tort actions had been brought against the estate of a driver, and after one of the actions was settled for a specified sum, the estate of one of the passengers who was killed (Lynch) brought a diversity action for a declaration that the driver’s use of the car had been with the permission of the insured (Dutcher). The named defendants were the administrator (Patterson) of the estate of the driver (Cionci) and the insurance company (Lum-bermens) which insured the owner of the vehicle (Dutcher). Dutcher was a resident of Pennsylvania as were all the plaintiffs. The specific question was whether under Rule 19, Dutcher, the insured, was an indispensable party to the declaratory judgment action to determine whether the automobile was being driven by Cionci within the scope of the permission of the insured (Dutcher). In the course of the opinion, holding that the insured was not an “indispensable” party to the proceeding under the factors outlined in subdivision (b) of Rule 19, the Supreme Court stated:

“We may assume at the outset, that Dutcher falls within the category or persons who, under § (a), should be ‘joined if feasible.’ The action was for an adjudication of the validity of certain claims against a fund. Dutcher, faced with the possibility of judgments against him, had an interest in having the fund preserved to cover that potential liability. Hence there existed, when this case went to trial, at least the possibility that a judgment might impede Dutcher’s ability to protect his interest, or lead to later reliti-gation by him.” 88 S.Ct. at 737.

This language in Provident is not controlling. There are significant differences between Provident, supra, and this proceeding. In Provident, the estate of one of the passengers was the declaratory judgment plaintiff; there was a fund involved; there were adverse interests between the declaratory plaintiff and Dutcher, the insured. These factors are absent in the proceeding before us. There is no real controversy or adverse interests between the insureds, the Carters, and the relator here, and there is no fund before the court. The insurer, Em-casco, is the declaratory plaintiff seeking a declaration against the claimants and the driver of the Carter vehicle (Davis). The precise issue before the Supreme Court in Provident was not whether Dutcher was a necessary party (the first step in the process under Rule 19) but whether the court could proceed in view of the factors outlined in subdivision (b) without his presence. Hence, we believe that the language in Provident, supra, is not conclusive of the issue in this proceeding.

VII

We have thoroughly reviewed and analyzed the various authorities and conclude that under the facts of this case, the insureds, the Carters, are neither necessary nor indispensable parties for a complete determination of the declaratory judgment proceeding pending in the trial court. Their addition is not required under Rule 52.04(a), nor is their addition required or necessary under the judicial decisions analyzed above. We hold therefore that, where a declaratory judgment action is instituted by an insurer against certain claimants and the driver of a vehicle to determine the sole issue of whether the driver had permission of the insured, and the insurer does not deny coverage to the insured but affords the insured a defense under the terms of the policy, the insured is neither a necessary nor indispensable party pursuant to Rule 52.04. Our result in no way affects the question of coverage as between Emcasco and the Carters.

VIII

The issue remains whether mandamus is the proper remedy. We hold that it is. While the trial court has discretion in the first instance to determine whether a party sought to be joined is a “necessary” party, when the question is one of law, mandamus may properly be issued when the court has exceeded its lawful jurisdiction in ruling on a matter of joinder, and mandamus may properly be issued when the writ is used to prevent the joining of a party as well as to require the court to join a party. State v. Vardeman, supra, 409 S.W.2d at 675 [construing Rule 52.04 before its amendment in 1972].

IX

We have read the entire record, we have thoroughly reviewed the authorities relied upon by the parties and are convinced that our alternative writ heretofore issued must be made absolute.

Writ absolute.

KELLY, P. J., and GUNN, J., concur.

      . The policy provided that . . the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation and settlement of any claim or suit it deems expedient.”

      . The policy provided that the following are “insureds”:
      (2) any other person using such automobile with the permission of the named insured, provided his actual operation or . . his other actual use thereof is within the scope of such permission, .

      . Bobby Joe Carter was also made a defendant in the action. But jthere is no indication who Bobby Joe is other than it is alleged that he is an owner together with Donald and Shirley.

      . The petition alleged that Davis was an agent of Levi Standard Service and that he was driving with the permission of the Carters. State Farm Mutual Insurance Company insured Kirchner and his business. The record does not indicate the exact date of the filing of the petition.

      . Relator filed suggestions in opposition to the motion. It contended that the Carters had insurance, that they were not parties and the only issue was whether they gave permission to drive to Davis. They argued that the Carters were not necessary parties because “ . there is no issue involving them and no question of their liability in the accident or coverage under the policy. No declaratory relief is prayed for as to these parties [The Carters], nor is there any declaratory relief to be granted as to these parties. There is no justiciable controversy as to these parties.”

      .The second amended petition alleged that, if Davis was operating the automobile while employed by Kirchner, Kirchner was engaged in an automobile business and under the terms of the policy there would be no coverage under exclusion (g) as Davis would have been operating or using the automobile while “employed or otherwise engaged in the automobile business.” Exclusion (g) provides that this policy does not apply “to an owned automobile while used by any person while such person is employed or otherwise engaged in the automobile business, but this exclusion does not apply to the named insured, a resident of the same household as the named insured, a partnership in which the named insured or such resident is a partner, or any partner, agent or employee of the named insured, such resident or partnership.”

      . While it is not necessary for our decision, we believe that the Dead Man’s Statute, § 491.010, is not applicable to this declaratory judgment action filed by Emcasco. Davis is not an original party to the contract or cause of action in issue and on trial. The cause of action in issue and on trial in this proceeding is the question of permission by the Carters and the extent of coverage to Davis. Even if the Carters were joined in this declaratory judgment action, we believe the Dead Man’s Statute would not be applicable because the original parties to the contract or cause of action in issue and on trial (the insurance company and the Carters) are not dead. The fact that Davis and Halter are dead does not bring this declaratory judgment action within the operation of the Dead Man’s Statute. This action is a different one from the actions brought by the widow of Halter and the actions by Donnelly and Miller against the administrator of Davis’ estate. We do not, of course, rule on that issue. Cf. State v. Daues, 314 Mo. 13, 283 S.W. 51, 45 A.L.R. 1466 (Banc 1926) and Grimm v. Gargis, 303 S.W.2d 43, 74 A.L.R.2d 599 (Mo.1957).

      . The suggestions in opposition contended that the Carters were necessary for a complete adjudication of the declaratory judgment because Emcasco had a contract of insurance insuring the Carters against liability and because there are issues of fact and law common to both Emcasco and the Carters.

      . Relator in its reply argues that respondent “misconstrues the situation.” Emcasco has not denied coverage to the Carters; it intends to and is defending the Carters in these litiga-tions, and by stipulation has stated that it has forwarded to its defense counsel the suits of Miller and Halter “for the purpose of defending” the Carters in “those actions which arise out of the occurrence and collision mentioned in the Petition for Declaratory Judgment when the Carters are served . . ..” They point out that where the action for declaratory judgment alleges that the policy is void, or that a provision of the policy has been breached, or where the insurer contends that the insured is not entitled to coverage, then the insured is a “necessary” or “proper” party to the declaratory judgment action. But, where the action is filed to determine only whether a third person had permission’and no coverage is being denied and no relief sought against the insured, the insured should not be joined. “. . [T]he insured ... is a proper and necessary party only in a situation where the insurance company is attempting to deny coverage to the named insured under the policy, and is not a proper and [sic] necessary party in the situation involving a question of permission granted under the omnibus clause where the only contention is whether a third party had permission to operate the automobile and coverage was thus extended to that third party. In such a situation the insured has no interest in the outcome of the controversy, there is no controversy existing between the named insured and the insurance company subject to declaratory relief, and the named insured is thus not a proper party and should not be joined in the action.”

      .20 Appleman, Insurance Law and Practice, Ch. 378, § 11371, p. 170 (1963); St. Paul Fire & Marine Ins. Co. v. Aetna Cas. & Sur. Co., 357 F.2d 315 (10th Cir. 1966); Ohio Casualty Ins. Co. v. Maloney, 44 F.Supp. 312 (E.D.Pa.1942)

      . See Comments, The Mechanics of New Rule 19 and the Challenge to Its Validity, 12 St. Louis U.L.J. 119 (1967).

      . For a history and explanation of Rule 19, see Wright, Federal Courts, § 70, pp. 335-339 (3d ed. 1976) and 3A Moore’s Federal Practice, ¶ 19.07, pp. 2219-2263 (2d ed. 1974).

      . “A person shall be joined in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. . . ” Rule 52.04(a).

      . One of the catalysts for the modem approach was the excellent analysis and proposals of Professor Reed — Reed, Compulsory Join-der of Parties in Civil Actions, 55 Mich.L.Rev. 327, 483 (1957).

      . See also Wright v. First National Bank of Altus, Oklahoma, 483 F.2d 73 (10th Cir. 1973) discussed in Kingsley v. Burack, supra, 536 S.W.2d at 11.

        . See also, St. Paul Fire & Marine Ins. Co. v. Aetna Cas. & Sur. Co., supra, 357 F.2d at 316; Annot., 8 A.L.R. Fed. 738, 744-747 (1971); Annot., 22 A.L.R. Fed. 765, 807-809 (1975); 20 Appleman, Insurance Law and Practice, § 11371, p. 170 (1963); Annot., 71 A.L.R.2d 723, 747-752 (1960).

      . Maryland Casualty Co. v. Boyle Const. Co., 123 F.2d 558 (4th Cir. 1941); State Farm Mut. Automobile Ins. Co. v. Hugee, 115 F.2d 298, 132 A.L.R. 188 (4th Cir. 1940); Auto Mut. Indemnity Co. v. DuPont, 21 F.Supp. 606 (D.Del.1937); and Home Fire & Marine Insurance Co. v. Schultz, 80 N.M. 517, 458 P.2d 592 (1969); 18 Couch on Insurance, § 74:611, p. 557 (2d Ed. 1968) citing in addition to the above, C. E. Carnes & Co. v. Employers’ Liability Assur. Corp., 101 F.2d 739 (5th Cir. 1939); 6A Moore’s Federal Practice, U 57.25 (2d Ed. 1976).

      . Boyle and Hugee, supra, were distinguished in Northwest Cas. Co. v. Kirkman, supra, on the ground that in each of these cases the insured was joined as a party defendant; there was no controversy between the carrier and the permittee with respect to coverage or non-coverage of the additional insured on the grounds of lack of permission, and it was conceded that the policy covered the driver of the insured vehicle. In Kirkman, a real controversy existed whether the driver was using the automobile with permission, and in such instance the determination of “ . . . this question is of no vital concern to [the insured], nor is its determination conclusive as between the defendants and [the insured].” Northwest Cas. Co. v. Kirkman, 119 F.Supp. at 830.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Bobby Gene RANTZ, Defendant-Appellant.
    No. 9825.
    Missouri Court of Appeals, Springfield District.
    Jan. 7, 1977.
    Rehearing Denied Jan. 27, 1977.

      John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    John S. Pratt, Springfield, for defendant-appellant.
    Before BILLINGS, C. J„ and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Defendant Bobby Gene Rantz was tried for second degree burglary and stealing. A Greene County jury found him guilty of burglary and not guilty of stealing. Punishment was assessed at five years’ imprisonment and after his motion for new trial was denied, allocution, sentence, and judgment followed. We affirm.

Three of defendant’s points in this appeal pertain to the testimony of an accomplice, Jimmy Carter. The remaining point concerns one of the court’s instructions.

The instruction of which defendant complains has not been set forth in defendant’s brief as required by Rule 84.04(e), V.A.M.R., and the point has not been preserved for review. State v. Larkins, 518 S.W.2d 131, 135 (Mo.App.1974).

There is no merit in the three-pronged attack defendant makes on the testimony of accomplice Carter. This witness was competent to testify, even though an accomplice. And a defendant may be convicted on the uncorroborated testimony of an accomplice. State v. Lang, 515 S.W.2d 507, 509 (Mo.1974).

The “deal” the state had made with Carter in exchange for his testimony against the defendant was disclosed to the defendant before Carter testified. Carter was fully cross-examined as to his “deal” and the jury fully informed of the arrangement. State v. Collett, 526 S.W.2d 920, 931-932 (Mo.App.1975).

Defendant in his cross-examination of Carter sought to impeach the witness’ trial testimony by showing a prior statement Carter made to an officer and also his testimony at defendant’s preliminary hearing. On redirect Carter was permitted to testify he was telling the truth at the preliminary hearing and at the trial and offered explanations for seemingly contradictory statements. This was not error. State v. Griffin, 497 S.W.2d 133, 135-136 (Mo.1973); 98 C.J.S. Witnesses § 421, at 228.

The judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    Dwight CLASPILL et al., Plaintiffs-Respondents, v. J. RAY CRAIG et al., Defendants-Appellants.
    No. 9677.
    Missouri Court of Appeals, Springfield District.
    Jan. 12, 1977.
    Rehearing Denied Jan. 27, 1977.
    Charles C. Shafer, Jr., Kansas City, for plaintiff s-respondents.
    Donald W. Jones, Gary T. Nelms, Prew-itt, Jones & Karchmer, Springfield, for defendants-appellants.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   PER CURIAM.

Suit by union firemen against 14 non-union firemen, seeking contribution for expenses incurred by the union members in litigation which allegedly benefited the defendants. Twelve of the defendants filed answer and a two-count counterclaim.

Trial by jury resulted in verdict for the 12 defendants on plaintiffs’ petition, verdict for $500 for each of the 12 defendants on count one of their counterclaim, and in favor of the plaintiffs on count two of the counterclaim. Judgment was entered on the verdicts.

The trial court overruled plaintiffs’ after trial motions as to their petition but granted them a new trial as to count one of the counterclaim and ordered a new trial on liability and damages. Defendants’ motions directed to the judgment entered on count two were overruled. Defendants lodged this appeal.

As earlier noted, 14 individuals were named as parties-defendants in the suit filed by plaintiffs. The judgment entered below makes no mention of defendants Cotter and Thurman. Appellants’ brief avers a pretrial agreement between these two defendants and plaintiffs, but the record and judgment are silent as to them.

Rule 74.01, V.A.M.R., and § 511.020, RSMo 1969, provide that a judgment is the final determination of the rights of the parties in the action. For a judgment to be final and appealable it must ordinarily dispose of all parties and all issues and leave nothing for further determination. Lewis v. Esselman, 512 S.W.2d 423 (Mo.App.1974). The judgment herein failing to dispose of defendants Cotter and Thurman renders this appeal premature. Wile v. Donovan, 514 S.W.2d 177 (Mo.App.1974).

Appeal dismissed.

All concur.


text:
    Camille Ann CAIN, Appellant, v. John William CAIN, Respondent.
    No. 10040.
    Missouri Court of Appeals, Springfield District.
    Jan. 12, 1977.
    Julian J. Ossman, Myers, Webster & Perry, Webb City, for appellant.
    Niewald, Risjord & Waldeck, Jon Der-mott, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for respondent.
    Before BILLINGS, C. J. and HOGAN and FLANIGAN, JJ.
   PER CURIAM.

In the trial court, Camille Ann Cain, appellant here, sought to collect, by execution and garnishment in aid thereof, delinquent amounts of child support and maintenance owed by her former husband John William Cain, respondent here. John filed a motion to quash the execution and the trial court sustained the motion and entered its order quashing the execution and the garnishment issued in aid thereof. Camille appeals from that order. The appeal lies. Hardin v. Hardin, 512 S.W.2d 851, 852[1] (Mo.App.1974).

The judgment must be reversed on the basis of principles enunciated in Bonadonna v. Bonadonna, 322 S.W.2d 925, 926[1-2] (Mo.1959), a case which is factually similar.

The sole ground of John’s motion to quash was that the judgment had been paid. At the hearing on the motion no evidence was presented. The same situation prevailed in Bonadonna where the supreme court agreed with the ex-wife’s contention that “the trial court had no authority to quash the execution based upon the fact that the judgment had been paid without hearing evidence to substantiate said allegation.”

In Bonadonna at p. 926 the court said (authorities omitted): “The allegation in the motion did not prove itself. The burden of sustaining the motion to quash rested upon respondent, and since he pleaded payment, an affirmative defense, it was incumbent upon him to produce substantial evidence showing payment of the judgment. . There was no proof whatever of the ground set forth in respondent’s motion to quash the execution, and the motion was, therefore, improperly sustained.”

See also Hedgecorth v. Hedgecorth, 463 S.W.2d 596, 598[6-10] (Mo.App.1971).

The order quashing the writ of execution (and setting aside the garnishment in aid thereof) is reversed and the cause is remanded for further proceedings.

All concur.


author: TITUS, Judge.

text:
    Dianne L. (Brown) STEWART, Plaintiff-Appellant, v. Jackie Lee BROWN, Defendant, L & E Martin Oil Company, Intervenor-Respondent.
    No. 10137.
    Missouri Court of Appeals, Springfield District.
    Jan. 18, 1977.

      Julian J. Ossman, Myers, Webster & Perry, P.C., Webb City, for plaintiff-appellant.
    Dwight Douglas, Douglas, Douglas & Douglas, Neosho, for intervenor-respondent.
   TITUS, Judge.

Plaintiff and defendant (wife and husband respectively) were divorced and the divorce judgment awarded plaintiff child maintenance. Asserting that defendant was in arrears in maintenance payments, plaintiff, in aid of execution on the judgment, had a Joplin bank summoned as garnishee. L & E Martin Oil Company (Martin) filed an “Interplea” (Rule 90.08, V.A. M.R.) laying claim to “a substantial part of the money deposited in the” bank, to-wit: deposits totaling $7,845.90 made by defendant from July 3 through July 14, 1975. Martin alleged “[t]hat since the money in the said account is proceeds from the sale of property belonging to [Martin] that the said funds are held in trust by [defendant] and that under the Missouri law, [Martin] has a right to immediate possession of the funds in said account.” On the day garnishee answered plaintiff’s interrogatories, it acknowledged that defendant had a checking account with the bank in the name of “Jack’s Skelly” which had a balance of $5,445.20. When the bank paid the money into court it was ordered “discharged from the garnishment herein.” Although the court, following a bench trial, observed the account contained “some” of defendant’s money, it concluded, nevertheless, “the money belongs to Martin.” Judgment was entered accordingly and plaintiff appealed.

At the times of concern, defendant, under the name of “Jack’s Skelly” or “Jack’s Skelly Service,” was operating a service station in Joplin which he leased from owner Martin who was a franchise jobber for Skelly Oil Company. Under a “Special ‘Keep-Fill’ Motor Fuel Sales Agreement’’ executed by Martin and defendant, Martin contracted to deliver and store at defendant’s place of business Skelly motor fuel and to place the same in tanks at the station. Defendant agreed the title to the fuel “shall be and remain in” Martin until removed from the tanks “through and by means of computing pumps.” Thereupon, Martin agreed to sell to defendant and defendant agreed to purchase from Martin “all such motor fuel as may be removed from said tanks as aforesaid.” Defendant contracted to pay Martin “on demand in cash” for all fuel removed from the tanks. The contract provided that if defendant failed to comply with payment requirements, Martin could suspend deliveries, terminate the service station lease, end the “Keep-Fill” agreement, lock the pumps, remove all fuel from the tanks and repossess the premises.

In addition to the motor fuel Martin placed in the tanks, defendant sold tires and other automotive parts and accessories, soft drinks, and the usual items of merchandise one generally finds for sale at service stations. Because defendant said he paid some of his obligations by cash or money order, it is reasonable to assume that he did not deposit one hundred percent of his income in the checking account in question, which was the only account he maintained. On the other hand, it may also be assumed that most of the deposits made to the account represented gross cash proceeds realized from operation of the service station. About 20 to 30 percent of the sales made at the station were made on credit cards of Skelly Oil Company. In practice, Martin would read the computing pumps at the station every three or four days to determine the number of gallons of fuel that had been removed from the tanks. From these readings Martin would compute defendant’s cost of the fuel sold and bill him for what he owed for the fuel and for whatever else he might owe Martin for other supplies purchased from Martin or acquired on Martin’s credit from other suppliers. Payments by defendant to Martin were made by credit card receipts and by checks drawn on defendant’s bank account. Defendant also wrote checks on the account to pay his employees, creditors other than Martin, and to make some child support payments.

The parties tried and have briefed the cause on the theory that § 400.2-326, V.A.M.S., was involved. Under the “Special ‘Keep-Fill’ Motor Fuel Sales Agreement” the parties specified that title to the fuel remained in Martin so long as it remained in the storage tanks. Consequently, paragraph (b) of subsection (1) of the statute would not seem operative to make the transaction one of “sale or return” as it related to stored fuel because there was no resale involved, for Martin had not sold the stored goods to defendant. Contrary to suggestions otherwise, defendant, doing business as “Jack’s Skelly” or “Jack’s Skelly Service” was not doing business under the name of Martin. Neither was he doing business under the name of Skelly Oil Company, any more than any other service station operator who sells branded gasolines on his own account at a station identified as one at which a particular brand of gasoline is sold. Mann v. Clark Oil & Refining Corporation, 302 F.Supp. 1376, 1380 (E.D. Mo. 1969), aff’d, 425 F.2d 736 (8th Cir. 1970); 1 Anderson, Uniform Commercial Code, 2d Ed, § 2-326:19, at p. 785. Subsection (3) undertakes to deal with goods delivered to a person for sale (as opposed to resale) where the receiver does business under a name other than that of the supplier, even though the agreement purports to reserve title in the supplier “until payment or resale[?].” As Martin apparently had not complied with either paragraphs (a) or (c) of subsection (3) so as to make the subsection inapplicable, much of its evidence was devoted to an attempt to prove that defendant was generally known by his creditors to be substantially engaged in selling goods of others [par. (b) of subsec. (3)]. However, we need not go into the details of that evidence because we opine § 400.2-326 has no place in our consideration of the matter.

Why do we say the section has no application here? The subject of the garnishment was funds of a judgment debtor (defendant) on deposit in a bank which were subject to the debtor’s check payable in money. Baden Bank of St. Louis v. Trapp, 180 S.W.2d 755, 759 (Mo.App. 1944); 9 C.J.S. Banks and Banking § 267 a., at p. 544. The statute applies to the possession of goods by a buyer or consignee for resale or sale which are deemed to be possessed via a sale or return transaction subject to the claims of creditors except as provided by the act. Plaintiff did not undertake to attach goods possessed by defendant and Martin does not claim entitlement to goods, only money. “ ‘Goods’ means all things . . . which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid” [§ 400.2-105(1), .V.A.M.S.], whereas “ ‘Money’ means a medium of exchange authorized or adopted by a domestic or foreign government as a part of its currency.” § 400.1-201(24), V.A.M.S. By the terms of the Keep-Fill contract, Martin agreed to sell and defendant agreed to buy the stored motor fuel when it was removed from the tanks “through and by means of computing pumps.” When this occurred, title in the motor fuel vested in defendant in the sale part of the transaction as if there had been an outright sale with no return feature. § 400.2-401, V.A.M.S.; 67 Am.Jur.2d, Sales, § 280, p. 421. Moreover, when title to the motor fuel vested in defendant as it was being dispensed to his customers via the computing pumps, the fuel was changed from goods and simultaneously converted into cash, checks or credit card receipts.

The parties may specify the times and terms of payment under the Uniform Commercial Code. § 400.2-310, V.A.M.S.; 67 Am.Jur.2d, Sales, § 403, at p. 561. By their written agreement, supra, defendant was to buy the fuel from Martin upon its removal from the tanks through the computing pumps and pay for the fuel thus purchased “on demand in cash.” Since defendant contemporaneously resold the fuel to serve station customers at the same time he was purchasing it from Martin, and as the demand for payment was not contemplated until Martin had performed the twice-weekly reading of the computer pumps and therefrom computed defendant’s cost of the fuel, it is evident that the sale from Martin to defendant was not to be a cash sale in strict legal signification and that defendant was to have a short credit following the sale until proper demand could be made. 77 C.J.S. Sales § 234 a., pp. 1004-1005. Therefore with nothing more, the sale of the fuel from Martin to defendant as it passed through the computing pumps changed whatever their previous relationship may have been to that of creditor and debtor. Although, as noted, Martin pleaded that the account which was garnished was being held in trust for it by defendant because it represented, in part, proceeds from the sale of its property, this ignored the fact that the part of the account it claimed represented receipts from sales of fuel the title to which was in defendant. Pleadings do not prove themselves [Fulton v. Fulton, 528 S.W.2d 146, 157 (Mo.App. 1975)] and since there was a total dearth of evidence anent the establishment or existence of any trust, and as the matter of an alleged trust has not been included in this appeal, the allegation regarding any trust is unavailing to Martin. Gonseth v. K & K Oil Company, 439 S.W.2d 18, 21[4] (Mo.App. 1969).

Rule 84.14, V.A.M.R., states that upon appeal in proper circumstances an appellate court should dispose finally of the case and render such judgment as the court ought to give. Nonetheless, as the parties were unwarrantedly mesmerized by § 400.-2-326, V.A.M.S., which we have found to be inapplicable to the facts in this case, plaintiff, as a lien creditor, neglected to prove up the quantum of her right to the account which has been garnished. We have, therefore, no alternative but to reverse the judgment nisi and to remand the cause for the reception of additional evidence and for the holding of further proceedings not inconsistent with the findings and rulings herein.

It is so ordered.

All concur.

      . Sec. 400.2-326: “(1) ... if delivered goods may be returned by the buyer . the transaction is ... (b) a ‘sale or return’ if the goods are delivered primarily for resale. (2) Except as provided in subsection (3) . goods held on sale or return are subject to [the claims of the buyer’s creditors] while in the buyer’s possession. (3) Where goods are delivered to a person for sale and such person maintains a place of business at which he deals in goods of the kind involved, under a name other than the name of the person making delivery, then with respect to claims of creditors of the person conducting the business the goods are deemed to be on sale or return. The provisions of this subsection are applicable even though an agreement purports to reserve title to the person making delivery until payment or resale or uses such words as ‘on consignment’ or ‘on memorandum’. However, this subsection is not applicable if the person making delivery (a) complies with an applicable law providing for a consign- or’s interest or the like to be evidenced by a sign, or (b) establishes that the person conducting the business is generally known by his creditors to be substantially engaged in selling the goods of others, or (c) complies with the filing provisions of the article on secured transactions (article 9).”


author: CLEMENS, Judge.

text:
    STATE of Missouri, Respondent, v. Steven MORGAN, Appellant.
    No. 37666.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 18, 1977.

      Robert C. Babione, Public Defender, Joseph W. Warzycki, Asst. Public Defender, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Raymond A. Bruntrager, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Judge.

A jury found defendant Steven Morgan guilty of second degree burglary and pursuant to the verdict the trial court sentenced defendant to two years’ imprisonment.

Defendant has appealed contending the trial court erred (a) in permitting the state to amend its information at trial, (b) by denying a mistrial when the state asked the victim if he had been burglarized before and (c) by not fully interrogating a juror who had asked to talk to the court.

The state’s evidence showed James Beck’s store was burglarized and that police had arrested defendant as he crawled out a window. Defendant denied he had been in the store but was across the street when apprehended.

The original burglary information had been amended at trial by adding after defendant’s name the words “acting with another.” He contends this amendment required him to defend against the acts of other, unidentified persons. A comparable amendment was challenged in State v. West, 484 S.W.2d 191[4, 5] (Mo.1972). The court denied the challenge, declaring the original and amended informations each charged defendant as principal, citing Rule 24.02, VAMR and § 556.170, VAMS. Here, as in West, there is no factual ground of prejudice. This, because the defense was that he had not entered the store. He has not shown this defense was affected by the amendment.

Defendant further contends the amendment entitled him to another preliminary hearing. Since there was no change in the offense charged, i. e., second degree burglary, another preliminary hearing was not required. Johnson v. State, 485 S.W.2d 73[3] (Mo.1972).

Defendant next contends the trial court should have declared a mistrial when state’s counsel asked the victim how many times his store had been burglarized. The court sustained defendant’s objection, the witness did not answer and the subject was dropped. The question was irrelevant but not so prejudicial to defendant we can say the trial court abused its discretion in not granting the drastic remedy of a mistrial. Compare State v. Stapleton, 518 S.W.2d 292[8] (Mo.1975), and Kansas City v. La-Rose, 524 S.W.2d 112[19-21] (Mo.1975).

During trial a juror asked to speak to the court. The juror denied on inquiry that she wanted to discuss anything about her “physical being or anything like that.” The court asked her to be seated and denied defense counsel’s motion to inquire further about her reasons. Defense counsel could have but failed to pursue his remedy to preserve the point for review, namely, a request for evidentiary hearing on his motion for new trial. Whether defendant was prejudiced by the trial court’s failure to inquire further into the juror’s request raised a factual issue, and the burden of showing prejudice was on the defendant. Defendant deprived the trial court of an opportunity to assess the propriety of its ruling by failing to request an evidentiary hearing on his motion for new trial and hence nothing is preserved for appellate review.

As to a defendant’s after-trial burden to produce evidence of prejudicial trial error— where that evidence, as here, does not appear in the trial record, see State v. Lay, 427 S.W.2d 394[6] (Mo.1968); State v. Davis, 369 S.W.2d 237[3] (Mo.1963); and State v. Jones, 531 S.W.2d 67[8] (Mo.App. 1975). We deny defendant’s point.

Judgment affirmed.

WEIER, P. J., and DOWD, J., concur.