author: REINHARD, Judge.

text:
    Erwin E. HENDERSON, Plaintiff-Appellant, v. BROWN ELECTRICAL SUPPLY CO., a corporation, Defendant-Respondent.
    No. 37553.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 14, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.

      Richard M. Stout, Charles A. Hapke, Kirkwood, for plaintiff-appellant.
    Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for defendant-respondent.
   REINHARD, Judge.

Plaintiff sued for commissions and incentive bonus. He appeals from an adverse judgment in a jury waived case. Under the standard of review in a court-tried case announced in Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976), we affirm.

Defendant, an electrical supply business, employed the plaintiff under the terms of a written employment contract which was executed on April 17, 1969. The defendant had no written contracts with its other employees, but plaintiff insisted upon a written employment contract. Although the contract was prepared by defendant’s counsel, the terms were negotiated with counsel for the plaintiff.

The relevant provisions of the contract include:

Paragraph 2: “The exact nature and type of services to be performed by Henderson hereunder are to be determined by and under the continuous direction of the officers of Brown, but basically are intended to include the responsibilities of a field sales manager with general supervision of and responsibility for the sales efforts of all outside salesmen, and with special responsibility for the development of the electrical utility business handled by Brown.” (Emphasis ours.)
Paragraph 3: “Henderson agrees that during his employment, as aforesaid, he will perform such services as are required of him according to directions received by him from Brown * *
Paragraph 4: “The parties hereto mutually agree that Henderson shall receive as full compensation from Brown for his said services performed while this contract is in effect, the following:
(a)A monthly commission of twenty-five percent (25%) of the gross profit before taxes for the prior month on any accounts that may be specifically assigned to Henderson by Brown, * *
(b) A monthly commission of one and one-half percent (1V2%) of the gross profit before taxes for the prior month for all sales of the Supply Division of Brown.
(c) A monthly car allowance of Two Hundred Dollars ($200.00).
(d) At the end of each fiscal year of Brown on January 31st a commission of one and one-half percent (1¾⅞%) of that portion of the gross profit before taxes of the Supply Division of Brown for that fiscal year which is in excess of the gross profit before taxes of the Supply Division of Brown for the fiscal year ending January 31, 1969.
(e) * * * the minimum total compensation Henderson shall receive for any fiscal year of Brown hereunder, shall be Fifteen Thousand Dollars ($15,000.00) * * *.”

At the time the parties entered into the contract, Brown had two divisions — the Supply Division and the Appliance Division. The Appliance Division was phased out in the fall of 1969. At the time Henderson’s contract was entered into, neither party contemplated the acquisition of a subsidiary.

On July 1,1970, Brown acquired all of the capital stock of Cook Electric, a competing company. In accordance with Paragraphs 2 and 3 of the contract, Brown’s president directed Henderson to perform services for Cook. Henderson devoted a few hours each week to Cook, but did not increase his working hours because of this extra duty. The duties he performed for Cook were of the same type that he had performed and continued to perform for the Supply Division.

Within three months after the acquisition, Henderson declared that he was not satisfied with his compensation because he was not receiving additional compensation for his work with Cook (other than commissions for direct sales). Based on the formula set out in Paragraph 4, Sections (b) and (d), he demanded 1½% of the monthly profits of Cook, and 1½% of its yearly profits from the date of acquisition. He claimed yearly profits from the date of acquisition on the basis that all of Cook’s profits were simply additional profits of the Supply Division of Brown, and no base year need be established separately for Cook.

Brown refused Henderson’s demands, telling him that his compensation as defined in the contract was based upon the Supply Division’s profits, and that Cook was a separate division. On February 1, 1971, however, Brown began paying Henderson 1½% of Cook’s monthly profits. From the time of the acquisition of Cook, Henderson had been receiving a 25% commission on all of his direct sales for Cook. These payments were made to Henderson on Brown Electrical Supply Company checks. After that time Henderson periodically “needled” his employers about not receiving the 1½% monthly profits from July 1,1970 to February 1, 1971, and the 1½% yearly profits produced by Cook since its acquisition by Brown.

While working for Brown, Henderson performed duties beyond that of sales manager. He helped Brown convert to an electronic billing system. He testified that he never expected additional compensation for these types of extra tasks not specified in the contract.

On April 80, 1972, Henderson’s employment with Brown was terminated. On October 25, 1972, Henderson made demands for the percent of the profits he had periodically claimed during his employment. Brown refused payment and plaintiff filed suit on December 15, 1972. The parties agree that if Brown is liable, the amount owing is $6,738.40.

Plaintiff contends that he is entitled to additional compensation for the services he rendered for Cook, and he offers several theories upon which to reverse the trial court’s decision. Plaintiff claims that the work he was instructed to do for Cook was beyond the terms of the written contract and therefore he was entitled to additional compensation. He argues that absent an express contract providing for additional compensation, the court must infer that the original contract provided for additional compensation for Henderson’s additional work. While the employment contract did not make provision for any additional compensation, it did provide that Henderson would perform all duties required of him throughout the Brown Company and in return he would receive “full” compensation based on his sales and the profits of the Supply Division.

The general rule provides that when one requests another to perform services for him, there is an implied promise to render reasonable and just compensation therefor. Gutweiler v. Lundquist, 200 Mo.App. 526, 207 S.W. 838, 839 (1919). This rule is ordinarily restricted to circumstances where the person performing the service is not already in the employ of the one requesting it.

If the person is already employed by the latter, the request for additional services, in the absence of an express special agreement in regard thereto, generally does not justify the inference of an offer to pay anything in addition to the compensation specified in the contract of employment, the assumption being that the extra services were requested and performed under such contract as an incident thereof. Additional compensation can be recovered only where the service is so different in nature from that originally agreed upon and so plainly beyond the scope of the original contract as to warrant the inference of an implied promise to pay therefor. 53 Am.Jur.2d, Master and Servant, § 77, p. 152; Gutweiler v. Lundquist, supra. The question of whether the additional compensation should be implied is an issue of fact for the jury, unless only one inference can be reasonably drawn from the nature of the services and circumstances. Pittsburgh C., C. & S. L. R. Co. v. Marable, 189 Ind. 278, 126 N.E. 849, 850 (1920); Robinette v. Hubbard Coal Mining Co., 88 W.Va. 514, 107 S.E. 285, 287 (1921); Watcham v. Inside Inn Co., 159 Mo.App. 33, 139 S.W. 228, 230-31 (1911); New v. Kansas City School of Watchmaking, 222 S.W.2d 966, 971 (Mo.App.1949); 25 A.L.R. 231; Leach v. Hannibal & St. Joe Ry. Co., 86 Mo. 27 (1885); Middlebrook v. Slocum, 125 Mich. 286, 116 N.W. 422 (1908).

There is a presumption that the compensation received by the plaintiff from Brown constituted “full” compensation for all services performed by Henderson. This presumption may be rebutted only when it is shown that the services requested are- so different in nature from that originally agreed upon and so plainly without the terms of the original contract of employment that it is reasonable to assume an implied promise to pay additional compensation for the additional duties. 3 Page on Contracts (2nd Ed.), § 1465 et seq.; 2 La-batt (Second Edition), Master and Servant, § 553 et seq.; Robinette v. Hubbard Coal Mining Co., supra.

The plaintiff admits that he was to receive no additional compensation for work done for the Appliance Division. He said he expected no additional compensation for the work with the electronic billing system. He was not required to work additional hours by the additional duties, and the additional work was substantially the same as that which he initially performed. The plaintiff did not produce the substantial evidence necessary for the court to find an implied contract to pay for additional services.

Plaintiff contends that he is entitled to the additional compensation because Cook should be considered part of the Supply Division and not a separate division. Henderson insists that after the purchase of Cook the term “Supply Division” became susceptible to two different interpretations and thus the contract is ambiguous. Plaintiff argues that any ambiguity in an employment contract must be construed in the employee’s favor. Plaintiff relies on Hinkeldey v. Cities Service Oil Company, 470 S.W.2d 494, 500[1] (Mo.1971), to support his argument. In Hinkeldey, the employment contract was drafted by the employer without input from or negotiations with the employee as to its terms. Henderson’s contract, however, was drafted at his request with substantial negotiations between the attorneys on both sides. Rather than automatically construing an ambiguity in favor of the employee, Henderson, we must look to the intent of the parties. Rhoden Investment Co., Inc. v. Sears, Roebuck & Company, 499 S.W.2d 375, 383[4] (Mo.1973). Here, the parties’ clear intent was to pay Henderson based upon the profits of the Supply Division.

Whether Cook was part of the Supply Division or a separate division is a question of fact. Henderson, in support of his contention, relies on evidence tending to show similarities and connections between the operations of Brown and Cook. The record, however, reveals substantial evidence indicating Cook was a separate division, and supporting the trial court’s decision. The record reveals that the two divisions were separated geographically and physically; that there were separate bookkeeping, payroll, and bank deposits; that each division had its own salesmen, delivery trucks and drivers; and that each division had a different manager.

Plaintiff claims that the trial court’s construction of the contract defeats the intent of the parties to create an incentive contract. Henderson argues that he should not have been required to perform services where no direct compensation could be obtained. Plaintiff asks that we construe the terms of the contract to imply an obligation on Brown to direct Henderson to perform only those duties which directly benefit the Supply Division. Conservative Federal Savings & Loan Ass’n v. Warnecke, 324 S.W.2d 471, 478-79[3] (Mo.App.1959). An implied obligation will not be inserted into a written contract unless it appears that it was so clearly within the contemplation of the parties that they deemed it unnecessary to expressly state it in the contract, or it must appear that the implied obligation is necessary to effectuate the full purpose of the contract. There is no evidence that the parties contemplated the restrictive provision sought by the plaintiff. Nor under the circumstances can we say that the purpose of the contract was defeated because Henderson performed a few hours’ work for Cook each week without direct remuneration.

The terms of the contract specifically provide that Henderson will perform those services required by Brown “with special responsibility for the development of the electrical utility business handled by Brown.” (Emphasis ours.) Rather than defeating the purpose of the contract, Henderson’s work for Cook was consistent with the terms of the contract, and further appears to have had remunerative value to Henderson. The record shows that after the acquisition of Cook, Henderson’s compensation from the Supply Division increased.

Finally, plaintiff seeks reversal on the grounds that Brown was estopped from denying him additional compensation because it accepted the benefit of his additional work for Cook. To constitute estop-pel in pais there must be, first, an admission, statement, or act inconsistent with the claim afterwards asserted and sued on; second, action by the other party on faith of such admission, statement, or act; and third, injury to such other party, resulting from allowing the first party to contradict or repudiate such admission, statement or act. Rodgers v. Seidlitz Paint and Varnish Company, 404 S.W.2d 191, 195[1] (Mo.1966). Brown was not inconsistent in its actions but continued to pay Henderson under the formula stated in the contract in return for services contemplated by the parties under Paragraphs 2 and 3. Henderson accepted compensation from Brown with the knowledge that Brown considered that the payments completely covered the work he did for Cook. Cf. Rodgers v. Seidlitz Paint and Varnish Company, supra.

Having rejected plaintiff’s claims of error, we need not reach the question of accord and satisfaction raised by defendant. The judgment of the trial court is affirmed.

McMILLIAN, P. J., and STEWART, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Samuel William ARMSTRONG, Defendant-Appellant.
    No. 37556.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 21, 1977.
    As Modified On Court’s Own Motion July 21, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.

      Robert A. Hampe, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., George A. Peach, Circuit Atty., Julian D. Cosentino, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   PER CURIAM.

Samuel William Armstrong, charged with four counts of receiving stolen property, § 560.270, RSMo 1969, and convicted on three counts, was given three 2-year sentences. He appeals from the judgment of conviction, contending that the State failed to prove that he “received” the stolen goods and that he had knowledge that the goods were stolen.

Appellant and his business partner Michael Primus operated a boutique shop at 4960 Delmar Boulevard and a restaurant at 4924 Delmar Boulevard in the City of St. Louis. Appellant rented the buildings housing the shop and restaurant from Chris Smyrniotis. Later appellant rented a garage building at the rear of 4960 Delmar, for the declared purpose of storing some personal goods (furniture, pictures, clothing, incense, etc.) and some “back-up” merchandise for the store.

On May 6, 1974 city police officers were patrolling the area in the course of a routine investigation. As they drove through the alley in the rear of 4960 Delmar appellant and Primus were observed standing outside the rear of the garage at a bay door, in the process of turning from the door. Appellant was withdrawing the key from a lock or, from the motion of his hand coming down from the door with a key, appeared to be withdrawing the key from a lock. The officers stopped their van, dismounted, and approached appellant and Primus. On being confronted by the officers one of the men dropped a bag. Officer Monroe picked up and inspected the bag, which apparently contained marijuana. The men were arrested for violation of the Missouri controlled substance law by possession of marijuana. Two of the officers observed and smelled smoke coming from underneath the garage door. Officer Monroe took the key from appellant’s hand and, using the key, entered the garage through the bay door to investigate the cause of the smoke. The smoke was found to be coming from a smoldering acetylene torch, which was warm. Inside the garage officers observed a number of automobiles in various stages of being disassembled or “stripped.” Four of them were body shells only. All had parts missing. There were automobile tools, automobile parts, wheels, drive shafts, rear ends, radiator assemblies, and accessories strewn about. Other parts of unidentified automobiles indicated that other automobiles had been completely dismantled in the garage. Appellant and Primus told the officers they knew nothing about the automobiles. The officers searched for but did not find any person or persons on the premises. Officers from the auto theft section of the police department were called. By number they identified ten automobiles in the garage and ascertained the names of the registered owners. The papers on an eleventh automobile were found. Further investigation revealed that theft reports had been made on all eleven vehicles. The owners of three of the automobiles were called to the garage. Each positively identified one of the cars as his property and testified that his car had been stolen. Two of them were stolen on April 2 and the third was stolen on April 16, 1974.

Appellant testified at the trial as follows: He was caretaker of the garage building during the summer of 1973. He rented the garage in November, 1973. There was a fire in the garage that summer. Appellant called the fire department. He told a police officer who answered the fire alarm that he managed the property and had rented it to one Richard Smith. On page 218 of the transcript appellant, testifying to events in 1973, stated that he was not aware that the garage had been used to strip stolen cars or for the purpose of keeping stolen cars. On page 219 he testified that the police came to the garage and found a number of stolen cars inside. After renting the garage in November, 1973 appellant stored therein some of his furniture and personal effects and some goods belonging to his shop. He rented the garage to one Richard Miller March 1, 1974. Miller was given a key. A second key was kept inside the store. From March 1, 1974 to May 6, the date of arrest, appellant had no reason to enter the garage and did not do so. When police found him and Primus in the alley they had not been in the garage; they were in the alley cleaning up trash and debris in response to a notice from the city. He had no knowledge of the automobiles found in the garage; had never seen them; had never been inside or looked inside the garage. He did not enter the garage between November, 1973 and May 6, 1974. He did not remember Richard Miller’s address. Miller paid him $125 a month rent from March, 1974 through June, and he gave Miller receipts. Appellant’s testimony was uncorroborated. Neither Primus, Smith nor Miller testified.

Section 560.270, RSMo 1969 provides: “Every person who shall * * * in any way receive, with intent to defraud, any property that shall have been stolen from another, knowing the same to have been stolen, shall, upon conviction, * * *

Appellant contends that the State failed to prove (1) that appellant “received” the automobiles and (2) that he received them with knowledge that they were stolen.

The essential elements of the offense of receiving stolen property are (1) the property must be “received in some way” from another person; (2) the property at the time of reception must be stolen property; (3) the receiver, at the time of reception, must have guilty knowledge that it is stolen property, and (4) the accused must have received the property with a fraudulent or criminal intent. State v. Kelly, 365 S.W.2d 602[7] (Mo.1963).

It is an essential element of reception that there be at least two actors involved, 66 Am.Jur.2d, Receiving Stolen Property § 4 p. 298; that accused received the property from another — from some person other than the owner. 76 C.J.S. Receiving Stolen Goods § 5 b. p. 8. “Proof of receipt of the property involved is necessary to establish that the offense of receiving stolen property has been committed. Such proof is necessary in order to differentiate between the actual thief and the receiver.” State v. Magers, 452 S.W.2d 198, 200 (Mo.1970). The property must have been stolen by someone other than the person accused of receiving stolen goods. 76 C.J.S. Receiving Stolen Goods § 1 p. 2; § 2 p. 4. As stated in 66 Am.Jur.2d, Receiving Stolen Property § 4 p. 298. “ * * * [T]he reception necessary to this offense cannot be embraced in the caption and asportation by the thief, but must rest on a subsequent delivery to some other person having knowledge that the property is stolen.” (Our emphasis.)

There was evidence that accused was in possession of the stolen automobiles, but proof of possession of recently stolen property alone does not establish reception from another. This is true notwithstanding language in State v. Ciarelli, 366 S.W.2d 63, 67[3] (Mo.App.1963), and State v. Reo, 510 S.W.2d 211, 213[3] (Mo.App.1974), equating “receive” with taking possession. That language must be read in the light of the evidence in those cases, which discloses an intermediary between true owner and accused. In proving that an accused received stolen goods by taking possession of them the State must show that accused came into their possession by receipt in some way from another person. 76 C.J.S. Receiving Stolen Goods § 19 p. 43; 66 Am.Jur.2d, Receiving Stolen Property § 6, p. 298.

As was the case in State v. Magers, supra, it cannot be said from the evidence in this record that appellant was the receiver rather than the taker of the stolen automobiles. The evidence may have made a case of stealing against appellant, but only by resorting to speculation and conjecture may it be said that appellant received stolen property from another. There is nothing to show how appellant came into possession of the automobiles; no evidence that appellant obtained them from or through a thief; no evidence that appellant purchased, leased, borrowed or otherwise acquired them from another person. The situation is akin to that in State v. Miller, 433 S.W.2d 281 (Mo.1968), wherein the court said, l.c. 283: “The evidence is more consistent with guilt of the charge of stealing than with guilt of the charge of receiving stolen property from another.”

For failure to prove the first element of the offense, reception, the judgment must be reversed.

“Absent evidence of appellant’s receipt of the property, we need give no consideration to the proof on this record of his knowledge that the automobile was stolen. * * * Nothing could be resolved by passing upon the evidence presented on this issue at the trial now under review.” State v. Magers, supra, 452 S.W.2d l.c. 200.

Judgment reversed.

All the Judges concur.


author: RENDLEN, Judge.

text:
    STATE ex rel. CITY OF JACKSON, a Municipal Corporation, Relator, v. Honorable Stanley A. GRIMM, Judge of the Common Pleas Court of Cape Girardeau, Missouri, Respondent.
    No. 38044.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 28, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.

      Waldron & Liehtenegger, Kenneth L. Waldron, John P. Liehtenegger, Jackson, for relator.
    Thomas M. Utterback, City Atty., Cape Girardeau, for respondent.
   RENDLEN, Judge.

By mandamus, relator City of Jackson would require respondent, Judge of the Circuit Court of Cape Girardeau County, to permit relator’s intervention in a declaratory judgment suit filed by the City of Cape Girardeau under the Sawyer Act against Jesse C. Rutherford, et al., inhabitants of a tract of land the City of Cape Girardeau seeks to annex. In response to our alternative writ, respondent filed return contesting relator’s right to intervene and urging that our alternative writ be quashed.

The City of Jackson contends it may intervene in Cape Girardeau’s annexation action as a matter of right under Rule 52.-12(a)(2) VAMR, for the reason it had previously begun its own annexation proceedings to a portion of the land now included in Cape Girardeau’s suit, and that its proceedings antedate Cape Girardeau’s by more than sixteen months. Relator contends that under the doctrine of “prior jurisdiction,” it is entitled to annex the land regardless of which city first completes its annexation procedure and, asserting that priority, relator seeks to intervene. For reasons hereinafter discussed, we find relator is not entitled to “intervention of right” under Rule 52.12(a) VAMR and no abuse of discretion appears in respondent’s denial of relator’s request for “permissive intervention” under section (b) of the rule. Our alternative writ improvidently issued, must be quashed.

The pertinent facts are these: On July 16, 1973, the City of Jackson by its City Council adopted an enabling resolution declaring reasonable and necessary the annexation of four separately numbered parcels of land. Pursuant thereto, the City filed a declaratory judgment action under the Sawyer Act for annexation of the four parcels and in that suit a contest developed as to approximately 1,390 acres of the land referred to herein as “area four.” On February 18, 1974, the City of Jackson adopted an additional resolution reaffirming its intent to annex all four areas but authorizing the City Attorney to proceed separately with declaratory judgment suits, apparently to facilitate annexation of those areas where the annexation effort was not contested by the inhabitants. The only reason appearing in the resolution for filing separate annexation proceedings and deleting the contested portion of area four was “. . . the Board of Aldermen feel it would be in the best interest of the City . ” On February 26 of the year the City filed a first amended petition seeking approval of the annexation of areas one, two, three, but only that portion of “area four” not contested and judgment for the City was entered March 5, 1974, on the amended petition. On December 3, 1975, the City of Cape Girardeau adopted enabling resolutions designed to annex certain lands including a portion of “area four” which the City of Jackson had not annexed but instead had deleted from its action. The following day, Cape Girardeau sued for declaratory judgment under the Sawyer Act seeking to annex a part of “area four”. It is in this suit relator seeks to intervene. Between March 5, 1974 (the date of Jackson’s favorable declaratory judgment) and January 5,1976, the date it moved to intervene, relator had taken no action of record to annex the disputed area.

At the hearing on relator’s motion to intervene in January, 1976, Cape Girardeau argued, that because of the almost two year lapse mentioned above, relator should be deemed to have abandoned its annexation attempt to the questioned portion of “area four”. Each city was afforded the opportunity to present evidence supporting its respective position on the issues raised by the motion to intervene and both made cursory offerings including exhibits, supporting affidavits, the testimony of one witness and the case file in Jackson’s original annexation proceeding. Respondent then ruled relator had “abandoned” its efforts to annex and accordingly denied intervention, which led to this original proceeding in mandamus.

The Sawyer Act provides for a declaratory judgment suit whenever cities of the class apparently here involved seek to annex an unincorporated area of land. Such suits are class actions against the inhabitants of the unincorporated areas, and the issues to be decided are: (1) the area to be annexed; (2) that such annexation is reasonable and necessary to the proper development of said city; and (3) the ability of said city to furnish the normal municipal services of said city to the unincorporated area within a reasonable time after the annexation is to become effective. These are the only necessary issues distinguishing such actions from other declaratory judgment suits.

The doctrine of “prior jurisdiction”, the basis of relator’s claimed interest in the land, is firmly established in the law of Missouri. “This doctrine has resulted from the sound recognition that there cannot be two municipal corporations with coextensive powers of government extending over the same area. The resulting and settled rule is that where two public bodies such as a municipal corporation or school district each claim jurisdiction over the same territory by virtue of completed consolidation proceedings or by completed annexation proceedings, the one which takes the first valid step to establish the consolidation or annexation has the superior claim regardless of which one completes its proceedings first.” Mayor, Gouncilmen, and Citizens of the City of Liberty v. Dealers Transport Company, and the City of Kansas City, Missouri, 343 S.W.2d 40, 42 (Mo.banc 1961), sometimes hereinafter referred to for convenience as “Liberty”; see also City of Sugar Creek v. City of Independence, 466 S.W.2d 100, 103[3] (Mo.App.1971). For the purpose here it may be assumed the first valid step for annexation by Jackson was its enabling resolution of July 16, 1973.

It is, however, clear that in a proceeding under the Sawyer Act plaintiff needs only to bring those issues before the court required by the statute. A judgment that the petitioning city’s annexation is “reasonable and necessary” and that such city is capable of providing normal municipal services within a reasonable time does not foreclose another municipality’s proceedings to annex the same territory. State ex rel. Industrial Properties, Incorporated v. Weinstein, 306 S.W.2d 634, 637[6] (Mo.App.1957). Thus a determination as to reasonableness and necessity for Cape Gir-ardeau to annex the disputed territory would not foreclose relator’s right to institute similar proceedings on its own behalf. Thus, as a practical matter a determination in this suit will not impair or impede relator’s ability to pursue the annexation of this territory, and accordingly we cannot say relator may intervene as a matter of right. The City of Cape Girardeau might have named relator as a party defendant and asked for an additional declaratory determination that relator had abandoned its annexation proceeding; See Mayor, Councilmen, and Citizens of the City of Liberty v. Dealers Transport Co., supra. That however was not done and relator may not as a matter of right, force that issue into this case under Rule 52.12(a)(2). It should be emphasized that the Sawyer Act, requiring a declaratory judgment action be brought as a step in the annexation process, provides in Section 3, “Such action shall be a class action against the inhabitants of such unincorporated area under the provisions of section 507.070, RSMo 1969.” Thus proper, representative inhabitants of area four were necessary parties but not so, the City of Jackson. We hold there was no “right” in relator requiring intervention.

Section (b) of Rule 52.12 VAMR provides, inter alia, that on timely application, one may be permitted to intervene in an action “(2) when an applicant’s claim or defense and the main action have a question of law or fact in common.” Such permissive intervention is subject to the trial court’s sound discretion. Here intervention was denied because the trial court found the applicant (relator here) had abandoned its annexation proceeding as to the disputed land area. Relator contends this finding of the trial court was error because its efforts were of a continuing nature which date and continue from its first valid step, to wit, its enabling resolution of July, 1973, citing as authority Mayor, Councilmen, and Citizens of the City of Liberty v. Dealers Transport Co., supra. In that case the city of Liberty brought its action for declaratory judgment under the Sawyer Act naming as defendants, owners of the property proposed to be annexed, and also the City of Kansas City. The latter was made a defendant because it had previously commenced proceedings to annex territory including that proposed to be taken by the plaintiff City of Liberty. On appeal it was held that the trial court, where both prospective annexing claimants were party to the action, should determine the question of “priority” of claims though neither city had at that point completed annexation. This however does not mandate intervention as a matter of right. The fact that the City of Liberty broadened the scope of its action and joined a party that was not a member of the required statutory class does not mandate that all plaintiffs in such declaratory judgment proceedings do the same. The court in “Liberty ” in effect held that once brought in by plaintiff as a party, the rights of defendant Kansas City need not await completion of the annexation proceeding to determine the “priority” question between them.

Other important factual distinctions appear, relative to the abandonment issue decided favorable to Kansas City in the Liberty case but adversely by the trial court to relator here. In “Liberty” the City of Kansas City had, prior to the first action by the City of Liberty, embarked on a “model plan for proposed annexation and territory”, conducted studies and most important set a four year schedule from January, 1957 through January, 1961, to be executed in annual stages, which included the land described in Liberty’s petition. Also, before the final decision by the Supreme Court, Kansas City had “completed the annexation of the territory in question,” and the court noted “in fact, the annexation was completed within the time as originally proposed. That fact refutes the contention that there was an abandonment”, Mayor, Councilmen, and Citizens of the City of Liberty v. Dealers Transport Co., supra, 343 S.W.2d at 43. In the case at bar annexation efforts of the City of Jackson fell far short of those of Kansas City described in the court’s opinion in City of Liberty, supra. The evidence presented to the trial court concerning the disputed territory showed only the original enabling resolution of July, 1973, which declared the annexation was reasonable and necessary to proper development of the city and directed the city attorney to “file as soon as possible a petition for declaratory judgment.” This was followed by the February, 1974, resolution containing a similar statement of intention but modifying the original resolution to the extent that the city attorney was authorized to file amended petition or petitions for declaratory judgment in the then pending circuit court action deleting therefrom the disputed territory [area four] but authorizing separate proceedings as to any of the areas involved. The affidavit of the Mayor of the City of Jackson received in evidence states that “at no time did the Mayor and Board of Aider-men rescind or modify the resolution authorizing the annexation of certain areas now proposed to be annexed by the City of Cape Girardeau.” The affidavit alluded to certain pending litigation in which the City of Jackson was a party and the City of Cape Girardeau, but provided no further information as to the nature of those suits or how they were material here, claiming only that since that litigation had been completed Jackson “now desires to complete annexation proceedings pursuant to the resolution.” The motion to intervene alleged that the City of Jackson temporarily delayed annexation in an effort to peacefully compromise and settle a county jail location dispute existing between the cities. However it was admitted that area four had been deleted from Jackson’s annexation proceedings and we find no further action of record had been taken concerning that land. Nothing further was offered in the testimony on the motion to intervene and from that record we cannot say the trial court abused its discretion in its finding of abandonment and denial of intervention.

“Mandamus will not lie to control the discretion of a court or judicial officer or to compel its exercise in a particular manner, except in those rare instances when under the facts it can be legally exercised in but one way.” State v. Ross, 420 S.W.2d 365, 368 (Mo.App.1967). One seeking mandamus must prove he has a clear and specific right to the remedy, for mandamus will not issue in doubtful cases. State ex rel. Christian v. Lawry, 405 S.W.2d 729, 731[7] (Mo.App.1966). As discussed above, relator failed to demonstrate a “right” of intervention and we find no abuse of discretion in the trial court’s denial of “permissive intervention”. Accordingly relator falls short of proving it has a clear and specific right to the remedy sought here. Our alternative writ of mandamus is quashed.

McMILLIAN, P. J., and STEWART, J., concur.

      . Section 71.015, RSMo 1969, under which Cape Girardeau proceeds is popularly known as the Sawyer Act and will be referred to as such in this opinion.

      . VAMR 52.12(a) is in pertinent part as follows: “(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest unless the applicant’s interest is adequately represented by existing parties.” (Emphasis ours.)

      . Pertinent portions of Rule 52.12(b) are as follows: “Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action. ... (2) when an applicant’s claim or defense and the main action have a question of law or fact in common.”

      . We are not told the statutory class of the city, Jackson. The record reflects it is apparently subject to the Sawyer Act and no challenge to this fact is made by respondent or the City of Cape Girardeau. Thus we may assume the first valid step for annexation by the City of Jackson was “The introduction and first reading of its ordinance of annexation.” City of Sugar Creek v. City of Independence, supra, 466 S.W.2d at 103. No point is raised nor do we rule the issue of which resolution or ordinance, that of February 14, 1974 or that of July 16, 1973, was the first valid step.


text:
    GREATER MISSOURI BUILDERS, a corporation, Plaintiff-Appellant, v. Charles F. BLATTNER et al., Defendants-Respondents.
    No. 38126.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 5, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.
    Rader & Richey, William S. Rader, Cape Girardeau, for plaintiff-appellant.
    Stephen N. Limbaugh, John L. Oliver, Jr., Cape Girardeau, for defendants-respondents.
   PER CURIAM.

This is an action for damages for breach of a real estate sales contract, plaintiff seeking damages in the amount of $200,-000.00 and also seeking recovery of $49,-000.00 escrow money. Defendants filed a counterclaim for money damages of $100,-000.00, plus recovery of the $49,000.00 escrow money. The trial court ruled against plaintiff on its petition and against defendants on their counterclaim, and ordered a release of the $49,000.00 escrow money to defendants. From this judgment plaintiff appeals. Due to major deficiencies in the plaintiff’s brief, we are required to dismiss the appeal.

Rule 84.04(c) requires that the statement of facts be a “fair and concise statement of the facts relevant to the questions presented for determination without argument.” The statement of facts in plaintiff’s brief is comprised essentially of seventeen pages of verbatim recitation of the terms of the contract and the addenda thereto. A page and a half is devoted to the very brief presentation of some other facts including paraphrasing of the pleadings in the case. This presentation of facts neither meets the standards of fairness and conciseness of Rule 84.04(c) nor is it adequate to resolve the questions presented for determination. Graff v. Montileone, 523 S.W.2d 131 (Mo.App.1975); Glick v. Harris, 518 S.W.2d 227 (Mo.App.1974). Furthermore, the statement of facts section of plaintiff’s brief is defective in its lack of sufficient specific page references to the transcript, as required by Rule 84.04(h). Stephan v. World Wide Sports, Inc., 539 S.W.2d 591 (Mo.App.1976); Dors v. Wulff, 522 S.W.2d 325 (Mo.App.1975).

Plaintiff’s brief is also inadequate in the lack of citations of authority following Points I, II, and V of the Points Relied On. Under Rule 84.04(d), the absence of citations of authority following a point relied on is grounds for the court’s finding that point abandoned. Earney v. Clay, 516 S.W.2d 59 (Mo.App.1974); Holtmeyer v. Scherer, 546 S.W.2d 29 (Mo.App.1976).

In regard to the adequacy of the points relied on, Rule 84.04(d) requires that: “The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations of authorities thereunder.” Point I of plaintiff’s brief states: “The Trial Court Erred in Finding Appellant Planned to Default on the Contract After Purchase of the Two-Acre Tract.” Point II states: “The Trial Court Erred in Finding Blattners Did Not Breach the Contract on November 27, 1974, Regarding the Two-Acre Tract.” Point III reads: “The Trial Court Erred in Finding Appellant Should Have Tendered Purchase Price to Blattners.” Point IV contends that the “Trial Court Erred in Ordering Escrow to Pay Blattners $49,000.00.” Point V states simply that “Appellant Had Contractual Rights to Buy Two-Acre Tract from Blatt-ners.” These points relied on completely fail to state or explain why the rulings of the court are erroneous, and such a failure is clearly grounds for dismissal under the mandate of Rule 84.04(d), which is to be strictly applied. Cope v. McClain, 529 S.W.2d 6 (Mo.App.1975); Haywood v. Haywood, 527 S.W.2d 36 (Mo.App.1975); Matter of Estate of Langford, 529 S.W.2d 31 (Mo.App.1975).

Although the dismissal of an appeal is a harsh course, reasonable compliance with the rules is essential for effective functioning of the appellate courts. The rules themselves are reasonable and have a significant purpose for both the court and opposing counsel. The plaintiff’s brief is not marred by simply a minor or solitary flaw, but rather contains several inadequacies which under Rule 84.04 render it fatally defective.

The motion to dismiss the appeal for failure to comply with Rule 84.04 is hereby sustained. The appeal is dismissed.

All the Judges concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. KELLEY TRANSPORTATION CO., INC., Appellant.
    No. 38747.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 19, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.
    Gerald H. Johnson, Downs, Johnson & Gibson, Cape Girardeau, for appellant.
    Bradshaw Smith, Pros. Atty., Cape Girar-deau County, Cape Girardeau, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Kelley Transportation Co. has appealed from a judgment entered pursuant to jury verdict imposing fines totaling $6,300. for thirty-three separate violations of § 390.061 RSMo 1969, each violation being a misdemeanor. § 390.171, RSMo 1969.

In its parts pertinent to this appeal § 390.061 provides:

1. Except as otherwise provided in section 390.031, no person shall engage in the business of a contract carrier in intrastate commerce on any public highway in this state unless there is in force with respect to such carrier a permit issued by the commission authorizing such operations.

Section 390.031 in its parts here material provides:

The provisions of section 390.011 to 390.-176 shall not apply to:

* * * * * *
2. School buses.
3. Taxicabs.

The thirty-three counts in the information are identical except as to the date of the alleged offense and the description of the motor vehicle, and in their material parts are as follows:

“Now comes A. J. Seier, Prosecuting Attorney within and for the County of Cape Girardeau * * *. and does present, aver and charge that the said defendant, Kelley Transportation Co. Inc. on or * * * [the date] in the said County of Cape Girardeau * * * did then and there wilfully and unlawfully through its agent, servant and employee, drive and operate a motor vehicle, to-wit: [in 18 counts ‘a 1972 Chevrolet School Bus,’ and in 15 counts, ‘a taxicab’] over and upon Missouri State High No. Interstate 55, a public highway of the State of Missouri, said motor vehicle being then and there engaged in the business of a contract carrier in intrastate commerce on said public highway without then and there having in force with respect to such carrier a permit by the Public Service Commission of the State of Missouri * * .”

Each and every count in the information affirmatively states that the motor vehicle operated by appellant in intrastate commerce was a motor vehicle to which § 390.-061 does not apply. Therefore, each count fails to allege a violation of § 390.061.

The judgment is reversed.

SIMEONE, C. J. and NORWIN D. HOUSER, Special Judge, concur.


text:
    STATE of Missouri, Respondent, v. Luther Lee MURRELL, Appellant.
    No. 37440.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 26, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.
    William B. Haller, David M. Adams, Asst. Public Defenders, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Walter O. Theiss, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., George R. Westfall, Asst. Pros. Atty., Clayton, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Luther Lee Murrell was found guilty by a jury of the murder of Frank Burger and sentenced to the custody of the Department of Corrections for a term of eighty years. He has appealed from the ensuing judgment. We affirm.

A jury reasonably could find from the evidence that July 28,1974, appellant killed Frank Burger by stabbing him, and appellant does not challenge the sufficiency of the evidence.

Appellant first asserts that the court erred in admitting into evidence testimony that he had been living with his “girlfriend” because it constituted evidence of his character when he had not placed his character in issue. The only objection made at trial to this testimony was that “it’s immaterial.” There was no objection on the basis that it constituted evidence of appellant’s character. This court will not review this assignment of error because it presents as error the admission of testimony to which no objection was made for the reason now presented on appeal. State v. Atkins, 494 S.W.2d 317 (Mo.1973); State v. Spencer, 486 S.W.2d 433 (Mo.1972).

Appellant was charged with murder in the first degree, but was found guilty of murder in the second degree. He assigns as error the giving of an instruction on murder in the first degree “because it prejudiced the jury by allowing them to believe there was some evidence of murder in the first degree when there was none, which was fundamentally unfair.”

We need not detail the evidence, but we do not agree that there was no evidence of murder in the first degree. Decisive of appellant’s contention is the long established rule that when a defendant is not convicted of murder in the first degree he cannot complain on appeal of an alleged error in the giving of an instruction submitting that offense. State v. McQueen, 399 S.W.2d 3 (Mo.1966); State v. Howard, 486 S.W.2d 660 (Mo.App.1972). Appellant admits that the case law of this state is “overwhelmingly” contrary to his contention, but he asserts it is time for this court to review its policy. We are of the opinion that the rule applicable to this situation should not be changed. In addition, that rule was announced by the Supreme Court of this State and is binding on this court. Klein v. Abramson, 513 S.W.2d 714 (Mo.App.1974).

Appellant’s final contention is that the trial court erred in permitting “improper rebuttal argument concerning James Hall’s testimony” because he was not able to respond to this “new argument.” By reference to the transcript we find that appellant’s objection was to the prosecutor’s reference in rebuttal to the testimony of James Hall because appellant’s counsel did not “say anything about Hall’s testimony” in his argument.

Appellant has misconceived the limitation on rebuttal argument which is, generally stated, that the prosecutor should confine his closing argument to a discussion of the issues and the argument of defense counsel. See State v. Hale, 371 S.W.2d 249 (Mo.1963). There is no prohibition to referring in rebuttal argument to the testimony of a witness, even though defense counsel did not do so, when the reference is a party of argument on a previously presented issue. That is what occurred in this case, and the point is without merit.

The judgment is affirmed.

SIMEONE, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: SMITH, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Rodney CAVIN, Jr. and Michael Williams, Defendants-Appellants.
    Nos. 37803, 37804.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 2, 1977.
    Bell, Harris, Kirksey & Thomas, James A. Bell, St. Louis, for defendants-appellants.
    John D. Ashcroft, Atty. Gen., Preston Dean, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Thomas M. Daly, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SMITH, Judge.

Defendants appeal from their convictions and 2 year sentences for carrying concealed weapons in a court-tried case. Sec. 564.610 RSMo 1969. The trials of the defendants were consolidated at the circuit court level and have been consolidated on appeal here.

Defendants’ only issue on appeal is that the evidence was insufficient to establish that they committed the offense charged, in particular that no evidence established that the guns were concealed.

Defendants were passengers in an automobile driven by a third person. The vehicle was speeding on a street in St. Louis. A police car pursued the vehicle, which turned into a service station and stopped in close proximity to a trash barrel. One defendant exited the car from the right front door, the other from the right rear door, and each walked to the trash barrel. The three officers in the police car also exited from their vehicle and one of the officers apprehended both defendants as they were dropping or were about to drop pistols into the trash barrel. Each defendant had a pistol in his hand at the time or just before he was grabbed by the police officer. The events occurred at night but the service station lot was well lighted. The arresting officer testified that when defendants exited from their car he could see their hands and they were not carrying the pistols. At that time he could see their right sides and the fronts of their bodies. Shortly thereafter they turned in the direction of the trash barrel and at that time the police officer could see the left sides and backs of their bodies. He did not observe the pistols upon their persons. While walking to the trash barrel the officer saw each defendant make a movement with his right hand toward his waistband. When the defendants reached the trash barrel the officer for the first time observed the pistols in their right hands.

Whether a weapon is concealed within the prohibition of the statute is determined by whether it is discernible by ordinary observation. State v. Bordeaux, 337 S.W.2d 47 (Mo.1960). Defendants contend, and we agree, that a weapon is not concealed simply because it is not discernible from a single vantage point if it is clearly discernible from other positions. It may be concealed, however, where it is discernible only from one particular vantage point. State v. Miles, 124 Mo.App. 283, 101 S.W. 671 (1907).

We find the evidence here sufficient to support the trial court’s finding that the weapons were concealed. The police officer testified that he had an opportunity to see all sides of the defendants’ bodies and their hands and did not see the pistols. We take into account, as the trial court could, that the circumstances under which the car was stopped and the immediate exit by the defendants were such as to cause a police officer to be particularly observant for weapons. State v. Jones, 523 S.W.2d 152 (Mo.App.1975). The movements of defendants’ hands to a potential place of concealment (See State v. Odzark, 532 S.W.2d 45 (Mo.App.1976)) and the appearance of the pistols in their hands when they reached the barrel supports the conclusion that the weapons were concealed when the defendants exited from the car. In addition one defendant testified that when the car stopped the driver handed him the pistols and told him to throw them in the trash barrel. While the trial court need not believe his further testimony that he held the guns in open view, the overall effect of his testimony supports a conclusion that defendants intended that the guns not be seen by the police officers who had stopped the car.

Judgments affirmed.

CLEMENS, P. J., and DOWD, J., concur.


author: CLEMENS, Presiding Judge. RENDLEN, Judge, dissenting.

text:
    Michelle KETCHUM, by her next friend Curtis Ketchum, and Curtis Ketchum, Plaintiffs-Appellants, v. Dorothy HAUSDORF, Defendant-Respondent.
    No. 37728.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 9, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.

      Sommers & Holloran, St. Louis, for plaintiffs-appellants.
    Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, R. A. Wegmann, Ray Dickhaner, Hillsboro, for defendant-respondent.
   CLEMENS, Presiding Judge.

Two-year-old plaintiff Michelle Ketchum was a passenger in a northbound, left-turning car driven by her sister Cynthia Root when it collided with the southbound car of defendant Dorothy Hausdorf. Co-plaintiff Curtis Ketchum is Michelle’s father and next friend. So far as pertinent here, the jury gave plaintiffs a $12,500 verdict against defendant Hausdorf.

Plaintiffs submitted their cases disjunc-tively on defendant’s statutory negligence in failing to sound a horn and also in passing another vehicle on the right. After the verdict defendant contended the evidence supported neither the failure-to-sound-a-horn submission nor the passing-on-the-right submission. The trial court agreed, set aside plaintiffs’ verdict and entered judgment for defendant. Plaintiffs appeal, asking us to order the trial court to reinstate their verdict and judgment.

A more detailed statement of the location: Plaintiffs’ ear was northbound in the inside lane of Lemay Perry Road (U.S. Highways Nos. 61-67), a four-lane highway at its intersection with Will Avenue, a two-lane east-west avenue in St. Louis County. Defendant Hausdorf was southbound in the outside lane of Lemay Ferry Road. The intersection is controlled by four green-amber-and-red overhead lights, one for each lane of Lemay Perry Road. There are no electric signals for left turns from Lemay Ferry Road but the north and southbound traffic lanes are governed by “left turn yield on green” traffic signs. All lights were green for both north and southbound traffic at times pertinent here.

The presence of a third vehicle is material. It was a large trash truck temporarily stopped in the inside, southbound lane of Lemay Ferry Road, waiting for and signaling a left-turn to the east into Will Avenue. As the truck’s driver waited, several cars passed him going both north and south on Lemay Ferry Road.

As plaintiffs’ driver drove north toward the intersection and defendant drove south toward it, the standing trash truck was in their line of sight and neither plaintiffs’ driver nor defendant Hausdorf saw each other.

The location and movement of the three vehicles is shown graphically:

As plaintiffs’ driver moved north toward the intersection she intended to turn left from Lemay Ferry Road into Will Avenue. She stopped in the inside lane and let southbound vehicles clear the intersection. When she saw no other cars coming south she began her left turn into Will Avenue, reaching a speed of five miles an hour. Meanwhile, defendant Hausdorf was driving south in the curb lane at 40 miles an hour. As said, because of the standing trash truck, neither driver saw the other until a moment before the collision. Both drivers knew defendant’s southbound car had the right-of-way over plaintiffs’ left-turning car. The collision occurred in defendant’s right-hand lane. Plaintiffs’ car was half-way out of the intersection, partly into Will Avenue. The right front quarter of defendant’s car struck the right side of plaintiffs’ car.

Plaintiffs’ verdict-directing instructions, with our emphasis added, required the jury to believe: “First, defendant Dorothy Hausdorf either; failed to sound her horn before starting to pass the truck, or passed the truck on the right side, and Second, defendant Dorothy Hausdorf’s conduct, in any one or more of the respects submitted in paragraph First, was negligent, and Third, such negligence directly caused or directly contributed to cause damage to plaintiff . . . .”

Defendant contends the evidence did not show a breach of her statutory duty either to sound a horn or not pass the truck on its right side. Plaintiffs concede our review is limited to those two submissions of statutory violations. Weathers v. Falstaff Brewing Corporation, 408 S.W.2d 668 [5] (Mo.App.1966).

In support of the first submission, plaintiffs point to the fact defendant passed the standing trash truck without sounding her horn and rely on the language of § 304.016.-1, RSMo. 1969: “(1) An operator or driver desiring to pass a vehicle shall sound horn before starting to pass . . . .” Plaintiffs’ sole citation is Hill v. Torrey, 320 S.W.2d 594 (Mo.App. 1959), where the issue was plaintiff’s negligence as a matter of law. Because of widely divergent facts Hill does not aid us in construing the cited statutory command. There, the plaintiff without honking overtook a moving tractor-trailer on a two-lane road and collided with a preceding automobile. By contrast, we note the more factually similar case of Jones v. Southwest Pump and Machinery Co., 227 Mo.App. 990, 60 S.W.2d 754 [4] (1933). There, defendant was parked partially on the right side of a two-lane road and as plaintiff began passing without honking, defendant moved out in front of and into a collision with plaintiff’s passing car. In denying the applicability of the comparable statute quoted above the court ruled: “The very wording of this statute shows that it has to do with the passing by a rear vehicle of a moving vehicle ahead in the line of traffic. The statute provides a means for an overtaking car to pass a moving overtaken car where the latter is moving in the line of traffic ahead.”

We reach the same conclusion. This rule of the road was established decades ago when roads were single-laned and overtaking a moving vehicle required warning to the overtaken driver to remain on his own right-hand side of the road. We hold the quoted statute does not apply to the situation here so as to require defendant to sound a horn when passing a standing vehicle in another lane of traffic.

Plaintiffs’ evidence did not make a sub-missible case on the submitted issue of defendant failing to sound her horn. We move on to the other submission, passing the trash truck on its right side.

As noted, plaintiffs disjunctively directed the jury to find for plaintiffs if defendant negligently “passed the truck on the right.” To avoid passing the truck on its right side defendant would either have to stop (despite the open lane ahead showing a green light) or she would have to turn left into the northbound lane. Even assuming the statutory limitation on passing applies to a multi-lane highway, § 304.016.2 (1) permits passing on the right “when the vehicle overtaken is making or about to make a left turn.” The trash truck was doing just that, so defendant breached no duty to plaintiffs when she passed the truck on its right side.

We conclude plaintiffs did not make a submissible case on either submitted ground. The trial court would have been justified in directing a verdict for the defendant. Not having done so, the court properly granted defendant’s after-trial motion for judgment.

Judgment affirmed.

McMILLIAN, J., concurs.

RENDLEN, J., dissents in separate opinion.

RENDLEN, Judge, dissenting.

I respectfully dissent for the following reasons. At the time of the collision, defendant Dorothy Hausdorf was traveling south on Lemay Ferry Road, a four-lane highway toward its intersection with Will Avenue in St. Louis County. Traffic at that intersection was controlled by electric stop signals and as she proceeded at 40 miles per hour in the outside of the two southbound lanes, defendant’s view ahead of the intersection was obstructed by a large southbound flatbed truck loaded with trash containers standing higher than the truck’s cab. The trash truck, waiting in the inner of the two southbound lanes of Le-may Ferry Road, was signaling an intended left turn which would take it into the intersection and onto the eastbound lane of Will Avenue. Viewing this traffic condition as she approached from the north at 40 miles per hour into an obscured intersection when only her lane was visible, defendant Haus-dorf most certainly was aware that passing the trash truck on its right side without sounding her horn constituted a real danger to vehicular or other traffic then in or approaching the intersection. It should have been apparent to her that the truck, before turning left, was likely yielding to other intersection traffic. This possibility was strongly suggested by the truck’s position as it stood waiting with its left blinker signal activated. As the truck waited, plaintiff’s vehicle was then in the intersection turning slowly (5 miles per hour) to its left in front of the trash truck, soon to emerge into defendant’s Hausdorf’s field of vision and line of travel. Whether Haus-dorf’s act of passing the trash truck on the right at 40 miles per hour without sounding her horn and entering the intersection under those conditions, produced a foreseeable risk of harm to the plaintiff or other traffic at that place, was clearly a question for the jury.

It seems clear to me the evidence was sufficient for the jury to find that under the foregoing conditions “such movement [could not be] made in safety . . . ” in violation of § 304.016.2(5). On the finding of such negligence, the evidence was sufficient for the jury to further find Hausdorf’s negligence caused or contributed to cause the collision and plaintiff’s resulting injuries under the instructions (admittedly proper as to form) given in this case.

Plaintiff’s verdict directing instruction submitted disjunctively two theories of negligence: [1] failure to sound horn; or [2] passing the truck on the right side. I have considered the law and facts as to each of these elements and find the submissions are supported by the record.

FAILURE TO SOUND HORN

The rule for traffic control on Missouri highways requiring sounding a horn when passing is embodied in § 304.016.1:

“The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to the limitations and exceptions hereinafter stated:
(1) An operator or driver overtaking and desiring to pass a vehicle shall sound horn before starting to pass except in cities where prohibited by ordinance;” (Emphasis added.)

It is important that the only exception to the general horn sounding mandate is that provided in the last portion of subsection (1), namely: “except in cities where prohibited by ordinance.” There are no exceptions exempting an overtaking driver from the duty to sound his horn if, for example, he: (1) passes on the right, (2) passes on the left, (3) passes a vehicle waiting in a line of traffic, or (4) passes a vehicle on a multi-lane highway. Under the accepted canons for statutory construction, when an exception is specified in the law, an intention to exclude all others from its operation will be inferred. This principle finds expression in the ancient maxim “expressio unius est ex-clusio alteráis.” Stated otherwise, it is generally the rule that an exception in a statute amounts to an affirmation of the application of the statutes to all cases not excepted, and excludes all other exceptions. Further, “The language of the exception ought not to be enlarged in its scope by an interpretation out of accord with its ordinary meaning. As a rule, exceptions in statutes are strictly construed.” State v. Breckenridge, 219 Mo.App. 587, 282 S.W. 149, 150 (1926). This principle is found in the more recent case City of Nevada v. Bastow, 328 S.W.2d 45, 47-48 (Mo.App. 1959), citing 82 C.J.S. Statutes § 382: “Exceptions in a statute, as a general rule, should be strictly construed, and, at the same time, exceptions should be reasonably construed; they extend only as far as their language fairly warrants, and all doubts should be resolved in favor of the general provision rather than the exception.”

Finding no exception that exempts defendant from the duty to sound her horn, we now examine cases which have affirmatively applied the statute in related situations. Section 304.016.1 has been held expressly applicable to automobiles passing on multilane highways. Hinds v. Kircher, 379 S.W.2d 607, 612-13 [10, 11] (Mo.1964). There the highway was divided four-lane U.S. 70 and the court stated it was for the jury to decide if the failure to “have sounded his horn was, under all the evidence, a proximate cause of the collision.” This duty to sound a horn when passing on mul-tilane roads was reaffirmed in Dintelman v. McHalffey, 435 S.W.2d 633, 636-37 (Mo.1968) in which it was held that failure of an overtaking driver to sound his horn when passing another vehicle on the left on a four-lane highway, was “negligence in violation of the statute”. The court further stated that defendant “had a duty to warn them [plaintiffs] by sounding his horn . of the danger he was creating by coming upon them at a sustained speed when [the driver of the lead vehicle] was slowing”; concluding “[i]t is not for this court to say that had a proper and timely warning been given by [defendant] he would not have influenced the situation of danger in any way.” Dintelman and Hinds made clear that a vehicle overtaking and passing to the left of another proceeding in the same direction on multilane highways is required by § 304.016.1(1) to sound a horn before passing.

In a case dispositive of the issues here, Rader v. David, 207 S.W.2d 519 (Mo.App. 1948) the court held the statute requires sounding a horn before passing on the right on multilane highways. Rader involved a three-lane highway (U.S. 40) on which plaintiff was proceeding in a westerly direction in the middle lane of the highway and as she approached the intersection of U.S. 40 and U.S. Highway 63, she slowed to turn. Though in the middle lane, plaintiff testified she had slowed and signaled a turn to her right; defendant, on the other hand, stated plaintiff’s vehicle, a pickup truck, had come to a halt and was “sitting there in the middle of the road and she [plaintiff] had her hand out for a left turn”, Rader, supra at 522. Defendant testified that as he drove in the outside westbound lane plaintiff’s truck was standing in the middle lane signaling for a left turn, and without sounding his horn he attempted to pass on the right. As defendant passed, plaintiff turned to her right (which according to defendant was quite unexpected) and collided with his vehicle. Defendant was found negligent for passing on the right and failing to sound his horn, even though plaintiff was signaling a left turn, as was the trash truck in the case at bar. The court construing § 8385, RSMo 1939, a precursor of § 304.016, RSMo 1969, stated: “[defendant] had no right to pass at all without giving a proper signal of his intention to do so.” Rader, supra at 523.

The only question remaining is whether a driver overtaking and desiring to pass (either on the right or left) another preceding in the same direction has a duty to sound the horn before starting to pass if the lead vehicle has momentarily stopped in a lane of traffic. In Rader the overtaken vehicle was, according to defendant’s admission, “sitting there in the middle” (emphasis added) of a three-lane highway. As pointed out above, the court held under those facts defendant was statutorily obligated under § 8385, RSMo 1939, to sound his horn when passing the “sitting” vehicle. When a vehicle, pausing momentarily at an intersection in a lane of traffic of a highway, is overtaken by another traveling in the same direction, the lead vehicle though pausing at the intersection is “proceeding” in the same direction as the following vehicle, as that term is used in § 304.016.1. This question was in effect decided by Rader and that case is controlling here. It cannot be said the driver of an overtaking vehicle is relieved of his duty to signal before passing when the overtaken vehicle is momentarily stopped on the highway as in the case at bar.

Assuming arguendo that failure to sound a torn when passing a vehicle momentarily pausing on the highway at an intersection in violation of § 304.016.1 is not negligence as a matter of law, the jury, if it found defendant did not sound her horn, could examine the circumstances and determine if defendant’s conduct constituted negligence. Those circumstances include the evidence of defendant’s car entering an intersection at 40 miles per hour and passing a truck on its right when defendant’s vision of the intersection was blocked by a vehicle which was apparently yielding the right-of-way to others approaching or then in the intersection. The jury found that failure to “sound her horn” was “negligent” conduct, which supports the verdict. I would reemphasize that by adding paragraph Second:

“Second, defendant Dorothy Hausdorf’s conduct, in any one or more of the respects submitted in paragraph First, was negligent, . . . ”

in instruction # 6, plaintiff is not requiring that the jury find the statutory violation constitutes negligence as a matter of law but instead calls for a finding that failure to sound a horn was, under the circumstances, negligent.

It should be kept in mind that “Statutory rules of the road set merely a minimal rather than a maximal standard of care, and they are not necessarily preclusive of common law negligence.” Lafferty v. Wattle, 349 S.W.2d 519, 526 [11] (Mo.App.1961).

If as the majority holds, the statute is inapplicable because the trash truck had momentarily paused on the highway, I would rule the case was nevertheless properly submitted under the common law and should thus be affirmed.

The majority, in support of its position that the statute did not require the defendant to sound a horn when passing a standing vehicle in another lane of traffic, cites Jones v. Southwest Pump and Machinery Co., 227 Mo.App. 990, 60 S.W.2d 754 [4] (1933). That case is not controlling for three reasons.

First: The case is clearly distinguishable on its facts. The court, in Jones held that a vehicle traveling a two-lane road is not required to sound its horn when passing a vehicle parked at the side of the road. The overtaken vehicle was, “parked off to the side of the trafficway” with “ample room to pass between it and the center of the highway.” Jones, supra at 758. A car parked at the side of the road is not comparable with the facts here in which the lead vehicle was momentarily pausing at an intersection on the inner lane of two southbound lanes of traffic before proceeding and turning into the intersection. The two situations present quite different traffic problems to overtaking drivers.

Second: The 1929 statute, § 7777[e], relative to sounding a horn which was the basis of the decision in Jones, has been radically altered in subsequent enactments. The present statute, § 304.016, is different in form, content and essential effect. The court held the duty to sound a horn under § 7777[e] RSMo 1929, did not apply to an overtaken vehicle parked at the side of the road because § 7777[e] provided that “an operator or driver overtaking and desiring to pass a vehicle shall sound his signaling device and the operator or driver of the vehicle so overtaken shall promptly, upon such signal, turn his vehicle as far as reasonably possible to the right in order to allow free passage on the left of his vehicle.” (Emphasis added.) The court went on to say “the very wording of this statute [ i. e., portion emphasized above] shows it has to do with the passing by a rear vehicle of a moving vehicle ahead in the line of traffic.” The emphasized portion of § 7777 [e] has been removed and is not a part of § 304.016.1(1), the applicable section here. This tells us the Jones court would reach a different result if it had been presented the instant facts under the present statute, since the basis for the court’s interpretation of the statute has been deleted from the current section.

Third: Jones is not controlling because the Kansas City Court of Appeals, (now the Missouri Court of Appeals, Kansas City district) which decided Jones in 1933, under § 7777[e] RSMo 1929, reached quite a different result in 1948 when deciding Rader , under § 8385 RSMo 1939. Though the cited statutory sections are identical, the Radar court under the facts set forth above held that the overtaken vehicle must sound its horn when passing a vehicle on its right, momentarily stopped in the center lane of the highway. Thus the court in the later case ruled that, in spite of the emphasized portion of § 7777[e] which also appears in § 8385 RSMo 1939, an overtaking driver is required to sound his horn when passing a vehicle which has stopped or paused in a lane of traffic. The pertinent facts in Rad-er are strikingly similar to those of the instant case. The Jones facts are not. The statute today has been markedly changed. For these reasons Jones has no precedential quality for this case and to the extent it might appear contrary to Rader, we must consider Jones overruled by the later case.

PASSING ON THE RIGHT

Concerning traffic regulations, “[t]he foundation of legislative intent is to require users of motor vehicles upon public highways to exercise the highest degree of care. VAMS § 304.010”. Lafferty, supra at 526. The statutory regulations for motor vehicles passing on Missouri highways are found in § 304.016. Section 2 provides that passing on the right is permitted only under conditions enumerated in subsections (1) through (5) of that section. Here defendant Hausdorf could pass the trash truck on the left because the trash truck was “about to make a left turn”, § .2(1), on a four-lane highway, § .2(4). However, she violated the clear prohibition of the statute that she could pass upon the right “when such movement may be made in safety”, § .2(5). There are circumstances described in the statute under which passing on the right is permitted, but those circumstances are few and passing vehicles may not so proceed except “when such movement may be made in safety.” The prior statute § 8385 RSMo 1939, permitted passing on the right in situations similar to those enumerated in the present law but added such passing vehicles “shall slow down and proceed cautiously”. Thus passing on the right was permitted if the driver slowed and proceeded with caution. The present statute narrows the driver’s option and he may not pass on the right unless he first determines it is safe so to do. This expresses a legislative concern for what is not the usual and is also a potentially dangerous manner of passing.

The Supreme Court of Missouri in Willhite v. City of St. Louis, 359 Mo. 933, 224 S.W.2d 956 (1949) considered a passing on the right case under then Section 8385[e] in which the defendant, proceeding in the outside of two southbound traffic lanes as in the case at bar, passed a momentarily stopped car, which had paused in the inside southbound lane. The overtaken car driven by Jenkins was proceeding south on King-shighway in St. Louis and immediately after it passed the intersection of “Ridge Avenue”, a cross street, Jenkins slowed and stopped in the block south of Ridge. Defendant, in the outside southbound lane could observe the Jenkins’ car’s movement, nevertheless passed on the right, striking the 6 year old plaintiff who was crossing Kingshighway from east to west in front of Jenkins’ car. Though defendant was proceeding south on Kingshighway, (not at an intersection) and was entitled to proceed as much or more than defendant Hausdorf here, the court in Willhite at 957 stated “[W]e cannot hold that it is always negligence as a matter of law, under all circumstances to pass on the right; although usually it is ”. (Emphasis added.) The court reversed the plaintiff’s judgment, remanding for further proceedings because the plaintiff’s verdict directing instruction told the jury that defendant was guilty of negligence as a matter of law if they merely found he “was passing on the right side” of the stopped automobile. It was explained by the court that “there are circumstances under which it might not be negligence to pass another automobile on the right . ” and thus the instruction was defective. The instruction here has no such infirmity, as the jury was instructed that if they found defendant passed on the right and that such action was found to be negligent and this negligence was casually connected to plaintiff’s injury, the verdict must be for plaintiff. The Willhite court found plaintiff had made a submissible case and only the instruction error caused the reversal and remand. Plaintiff here made an equally submissible or perhaps stronger case and under the proper instructions given, the plaintiff’s verdict should be reinstated and judgment entered thereon. There can be no doubt that the passing regulation statute is for the benefit and protection of all persons and vehicles using the roadway at or near the intersection described in evidence. The majority mistakenly suggests that defendant Hausdorf, because the light was “green” could pass on the right, but ignores the fact she proceeded into the intersection at 40 miles per hour without knowing or manifesting caution for the danger to plaintiff then crossing in front of the trash truck, just as the defendant in Willhite passed on the right not knowing of the plaintiff’s walking in front of the stopped Jenkins’ car.

The majority would excuse the conduct on the grounds that defendant would have to stop or turn and pass the truck on its left to avoid passing on the right. Perhaps Hausdorf should have come to a stop, but at the very least if she passed on the right she should have slowed, sounded her horn and proceeded with caution. The statute mandates she should not have passed on the right at all unless passing could “be made in safety”. From this the jury could and did properly find defendant did pass the trash truck on the right and that under the circumstances was negligent.

Finally, defendant’s passing on the right and failure to sound a warning horn raised a jury question whether such conduct directly caused or contributed to cause the injury to the two year old plaintiff, a guest in the car already in the intersection turning left in front of the trash truck.

. I would reverse and remand the cause with direction to reinstate the plaintiff’s verdict and enter judgment thereon.

      . See § 85.16, RSMo. 1909, and ensuing revisions for comparable rule of the road.

      . The traffic control signal was green for north and southbound traffic on Lemay Ferry Road.

      . The pertinent portion of § 304.016.2(5) provides: “The driver of a motor vehicle may overtake and pass another vehicle upon the right only . when such movement may be made in safety." (Emphasis added.)
      All statutory references are to RSMo 1969, unless otherwise indicated.

      . § 8385, RSMo 1939, in pertinent part provides as follows: “An operator or driver overtaking and desiring to pass a vehicle shall sound his signaling device and the operator or driver of the vehicle so overtaken shall promptly, upon such signal, turn his vehicle as far as reasonably possible to the right in order to allow free passage on the left of his vehicle.”

      . Defr 'dant Hausdorfs duty to sound her horn was nui only to warn plaintiff of her approach but also the trash truck because it might have turned to its right into defendant as did the overtaken car (though signaling a left turn) in Rader.

      . In Rader, Highway 40 was a 3-lane highway while here, Lemay Ferry Road was a 4-lane highway. This factual difference in no way lessens defendant’s duty to sound her horn.

      . This rationale appears in the decisions of other jurisdictions. For instance, Chapman v. Trump, 10 Terry 110, 110 A.2d 308 (Del.Super.Ct.1954), held that an overtaking vehicle was statutorily obligated to sound a warning when passing a vehicle that had stopped in a lane of traffic and ruled a Delaware statute, Title 21, Sec. 4133(b) of the Code of 1953, requiring sounding a horn “before passing ... a vehicle proceeding in the same direction” (emphasis added) was applicable. The court ruled the “stopped” vehicle was “proceeding” in the same direction as that term is used in the statute. The case is squarely in point on the issue at bar.

      .The opinion in Jones further described the position of the Ford car as follows, “The Ford was parked on the south edge of the pavement, and parallel thereto, facing east, the direction in which the Pontiac was going. One-half of the Ford was on the pavement and the other half on the dirt shoulder and opposite a mail box attached to the top of a post.”

      . Pertinent portions of 304.016 are as follows:
      .1 The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to the limitations and exceptions hereinafter stated: .
      .2 The driver of a motor vehicle may overtake and pass to the right of another vehicle only under the following conditions:
      (1) When the vehicle overtaken is making or about to make a left turn.
      (2) Upon a city street with unobstructed pavement of sufficient width for two or more lines of vehicles in each direction.
      (3) Upon a one-way street.
      (4) Upon any highway outside a city with unobstructed pavement of sufficient width and clearly marked for four or more lines of traffic.
      (5) The driver of a motor vehicle may overtake and pass another vehicle upon the right only under the foregoing conditions when such movement may be made in safety. In no event shall such movement be made by driving off the paved or main traveled portion of the roadway. (Emphasis added.)

      . There was an outside or third southbound lane but cars were parked on the west side and narrowed Kingshighway so only 2 southbound lanes were open for traffic.


author: McMILLIAN, Presiding Judge.

text:
    Robert KIWALA, Plaintiff-Appellant, v. James BIERMANN and Victoria Biermann, his wife, Defendants-Respondents.
    No. 38187.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 9, 1977.

      Daniel W. Brown, St. Louis, for plaintiff-appellant.
    Cupples, Cooper & Haller, Inc., Bernard W. Gerdelman, Albert J. Haller, Clayton, for defendants-respondents.
   McMILLIAN, Presiding Judge.

Appellant Robert Kiwala appeals from a judgment in favor of respondents James and Victoria Biermann, husband and wife, denying his petition for a mandatory injunction. The injunction sought to command respondents to cease and desist from utilizing a private road as a means of ingress and egress to respondents’ property. For reasons herein given, we affirm the judgment.

Appellant is the owner of Lot No. 5, in fee simple, of Fontainebleau Estates Subdivision and as such owner of an easement for the usage of Fontainebleau Drive (also known as Afshari Drive), a private road for the usage of the members of Fontainebleau Estates Subdivision.

On or about May 20, 1974, respondents began to utilize Fontainebleau Drive as a means of ingress and egress to their property which abuts Fontainebleau Estates but is not a part thereof.

On May 20, 1974, respondents filed with the recorder of deeds of St. Louis County a “Deed of Correction and Agreement,” whereby respondents purported to become members of Fontainebleau Estates and as such entitled to use Fontainebleau Road as owners of the easement.

On February 18, 1975, appellant brought this action for a mandatory injunction against respondents’ use of Fontainebleau Drive. On April 18,1975, respondents filed with the recorder of deeds of St. Louis County a “Deed of Easement” from Henry C. and Betty J. Rechtine, husband and wife, owners of Lot No. 1 of Fontainebleau Estates, and Jamestown Investment Corp., owner of Lot No. 2 of said subdivision, for the usage of that part of Fontainebleau Drive which passes through each of their lots.

In June, 1969, Fontainebleau Estates was duly established and recorded as a subdivision in an unincorporated area of St. Louis County. All lots set forth in the plat exceeded three acres in size. The subdivision was made subject to the restrictive covenants and conditions contained in a duly recorded Trust Indenture, which provides, inter alia:

“1. ... Jamestown Investment Corporation, without the joinder of others, may amend, modify or change any condition or restriction herein contained, including any front building, side or set back line, so long as it is the owner of any one lot in said subdivision.
* ⅜ * * * *
“15. It is contemplated that — plats of adjacent land shall be filed to be known as FONTAINBLEAU ESTATES, and it is expressly provided that if and when such plats are filed, the lots included in them shall be considered part of this subdivision and shall be subject to the same restrictive covenants and conditions and under the control of the same Board of Trustees and Architectural Control Committee and all lot owners in all FON-TAINBLEAU ESTATES SUBDIVISIONS shall vote together whenever a vote of lot owners is required by the provisions of this Indenture or the Indentures of other FONTAINBLEAU ESTATES SUBDIVISIONS. It is the intention of the makers to have all lots in FONTAIN-BLEAU ESTATES, regardless of when the plats for such lots are filed, subject to this common indenture and that said plats of FONTAINBLEAU ESTATES, shall have consecutive numbers.

Pursuant to these provisions the cestui que trust under the indenture, Jamestown Investment Corporation and a trustee named therein, Houshang Joe Afshari (Joe Af-shari), executed a Deed of Correction and Agreement which was duly recorded in February, 1975, whereby respondents’ property, which exceeded three acres in size and was contiguous to Fontainebleau Estates, was made a part of the subdivision. The Deed of Correction and Agreement provided that respondents’ property became subject to both the conditions and restrictions contained in the Indenture and the conditions and grants set forth in the plat which established the subdivision. These conditions and grants purport to give respondents the same privileges enjoyed by the other lot owners in Fontainebleau Estates, including the complete and uninterrupted use of Fontainebleau Drive.

One of the conditions governing the establishment of Fontainebleau Estates as set forth in the plat thereof states in part:

“The 50’ wide strip of land shown as Fontainebleau Drive on the above plat, together with its roundings at intersections, is established as an easement for road purposes for the use and benefit of all lot owners in the subdivision.”

For reversal appellant argues that the trial court erred in dismissing his petition seeking a mandatory injunction because (1) respondents were not made a part of Fontain-ebleau Estates Subdivision by reason of the Deed of Correction and Agreement and (2) respondents did not acquire the right to utilize Fontainebleau Drive by obtaining a deed of easement from only two of seventeen lot owners in the subdivision.

Appellant’s first argument is based upon subdivision regulation as a method of land use control. Appellant argues that if any subdivision can be enlarged simply by the filing of a deed of correction with the recorder of deeds, then all Planning and Zoning Boards throughout the state are in effect useless in controlling residential land development. Rational planning and zoning would be defeated by deeds of correction. Appellant further argues that because the subdivision ordinance of St. Louis County, St. Louis County Rev. Ord., Title X, Ch. 1005 (1974), provides a method for deleting lots from subdivisions but does not specify one for adding lots for existing subdivisions, the rule of statutory construction applicable is “the express mention of one thing implies the exclusion of the other.” Thus appellant would construe the subdivision ordinance to implicitly deny any extension of subdivisions.

A complete answer to appellant’s first argument is that the subdivision ordinance is inapplicable to subdivisions like Fontainebleau Estates where the minimum lot size is three acres. While the subdivision ordinance does require the Department of Planning to approve a subdivision plat prior to the establishment and recording of that plat, St. Louis County Rev. Ord., Title X, Ch. 1005, § 1005.030, “subdivision” is defined in the ordinance as a “division a redivision of a tract into lots, plats, or sites for development purposes any one of which is less than three (3) acres in area. . Id. § 1005.040(3b). Fontainebleau Estates, with or without respondents’ property, is a subdivision of three acre lots and therefore is one to which the subdivision ordinance does not apply.

In addition the Deed of Correction and Agreement under which respondents claim to be members of Fontainebleau Estates seems to be precisely the kind of amendment contemplated by the Trust Indenture. The Indenture of an express trust governs the powers of the trustees named therein regarding the subject matter of the trust, Cozart v. Green Trails Management Corp., 501 S.W.2d 184, 187 (Mo.App.1973); a grantor of realty may retain certain rights or powers under an indenture to which that realty is subject, LeBlanc v. Webster, 483 S.W.2d 647, 648-50 (Mo.App.1972), including the power to modify the indenture, e. g., Hisey v. Eastminster Presbyterian Church, 130 Mo.App. 566, 109 S.W. 60 (1908); see also 20 Am.Jur.2d, Covenants, Conditions, and Restrictions, § 269 (1965). Provision 1(2) empowers Jamestown Investment Corporation to “amend, modify or change” the terms of the Trust Indenture so long as it owns one lot in the subdivision which it did at the time of the execution of the deed of correction and agreement. Provision 15 contemplates and authorizes action by the trustee and the cestui que trust necessary to expand the subdivision by adding adjacent property. The deed of correction and agreement, authorized by the Trust Indenture, made respondents’ property a part of Fontainebleau Estates and subject to the conditions and grants set forth in both the Trust Indenture and the plat establishing the subdivision, including the right to use Fontainebleau Drive.

Appellant’s second argument is based upon the deeds of easement granted by the Rechtines and Jamestown Investment Corporation as the owners of Lots No. 1 and No. 2 respectively. Fontainebleau Drive is a private road with only one point of ingress and egress and forms a cul-de-sac in the center of the subdivision. Respondents obtained easements only from the owners over whose property runs that portion of the easement (Fontainebleau Drive) to which they sought access. Appellant contends that the owners of these lots acted in a manner inconsistent with the condition set forth in the plat by allowing respondents to use Fontainebleau Drive, thereby reducing the value of appellant’s easement. The language of the condition states that Fontainebleau Drive “is established as an easement for road purposes for the use and benefit of all lot owners in the subdivision.” Appellant argues that this limits the members of the class who have the right to use this road and gives no one the right to expand their right or diminish any other lot owner’s right. The simple answer to appellant’s argument is that respondents are indeed lot owners in Fontainebleau Estates by reason of the deed of correction and agreement and as such are within that class of persons who may use Fontainebleau Drive.

In addition, respondents, as grantees under the deeds of easement obtained from the owners of Lots No. 1 and No. 2, claim an easement identical to that of other lot owners to use that portion of Fontainebleau Drive which is contiguous to Lots No. 1 and No. 2. The plat of the subdivision indicates that each of the individual lot owners hold in fee that portion of his lot over which the easement runs. In general the owner of property burdened with an easement (the servient tenement) may use his property in any way which is not inconsistent with the easement. Reutner v. Vouga, 367 S.W.2d 34 (Mo.App.1964); Missouri-Kansas-Texas RR v. Freer, 321 S.W.2d 731 (Mo.App.1959); Tracy v. Klausmeyer, 305 S.W.2d 84 (Mo.App.1957). There may be concurrent easements over the same servient tenement as long as the second easement is not inconsistent with the first easement. The existence of an easement will not “prevent the landowner granting to a third person another easement or right if it does not hinder the first grantee from having the full enjoyment of his easement.” State ex rel. Appel v. Hughes, 351 Mo. 488, 173 S.W.2d 45, 49 (1943), quoting Goddard on Easements 280 (Am.Ed. 1880).

The facts of this cause present a case of first impression in Missouri. Other jurisdictions, however, have resolved the issue in favor of recognizing concurrent easements when faced with facts similar to those at issue here. In Glatts v. Henson, 181 P.2d 917, 920 (Cal.App.1947), the court held that “since the easement [granted] of the city was not exclusive, the identical easement could be granted concurrently to others over the same area [for the same purpose].” Accord, Holbrook v. Telesio, 37 Cal.Rptr. 153 (Ct.App.1964); Barnard v. Gaumer, 146 Colo. 469, 361 P.2d 778 (1961) (en banc); Aspen Acres Ass’n v. Seven Associates, Inc., 29 Utah 2d 303, 508 P.2d 1179 (1973).

If the original easement was not exclusive and the subsequent concurrent easement was not inconsistent or unreasonably burdensome, then the second easement is valid and entitles the grantee to whatever right is granted by the easement. Although the physical arrangement of the subdivision makes Fontainebleau Drive a road used almost exclusively by the lot owners (it is essentially a cul-de-sac), the language of the condition which created the easement is not exclusive. Any doubt about the scope of the easement should be resolved in favor of the free and untrammeled use of the land. Miller v. Berry, 270 S.W.2d 666, 670-671 (Mo.App.1954).

Whether the increased use of an easement granted in general terms will be a burden to the servient tenement depends upon the nature of the proposed extended use. E. g., Karches v. Adolph Investment Corp., 429 S.W.2d 788, 793 (Mo.App.1968). The court held that an increase in the number of vehicles using the roadway covered by the easement would not be such a burden and distinguished cases which involved a change in the character of the easement. Id.; cf., Gerber v. Appel, 164 S.W.2d 225 (Mo.App.1942), quashed in part, State, Appel v. Hughes, 351 Mo. 488, 173 S.W.2d 45 (1943) (attempt to change easement for walkway into one for vehicular traffic); Kavanaugh v. St. Louis Traction Co., 127 Mo.App. 265, 105 S.W. 278 (1907) (attempted use of electric street cars upon an easement for horsedrawn cars) St. Louis Safe Deposit & Sav. Bank v. Kennett Estate, 101 Mo.App. 370, 74 S.W. 474 (1903) (erection of a furnace chimney in easement for alleyway); see also, 25 Am.Jur.2d § 77, Easements and Licenses (1966).

Respondents’ property abuts the only frontage of Fontainebleau Drive which was not included on the original plat of the subdivision. Respondents do not use that portion of Fontainebleau Drive covered by the deeds of easement in any manner which is inconsistent with or materially alters the use of the other lot owners. Respondents maintain a comparable single family residence and use the road as a means of ingress and egress from their property. In Holbrook, the court held that the granting of a second, concurrent easement for the use of a wide roadway to a single landowner would not constitute an unreasonable burden on the holder of the initial roadway easement. 37 Cal.Rptr. 154, supra.

The judgment is affirmed.

STEWART and REINHARD, JJ., concur.