author: FINCH, Judge. DONNELLY, J.,

text:
    MORRIS PLAN COMPANY, Respondent, v. EXCELSIOR ESTATES, INC., et al., Appellants.
    No. 59154.
    Supreme Court of Missouri, En Banc.
    Sept. 13, 1976.

      Wendell E. Koerner, Jr., St. Joseph, for respondent.
    Dennis G. Muller, Muller & Muller, Kansas City, for appellants.
   FINCH, Judge.

This is an appeal from a summary judgment in a replevin action instituted under § 533.010. That judgment granted possession of a mobile home to Morris Plan Company (plaintiff) and dismissed a counterclaim for damages filed by Excelsior Estates, Inc. (Excelsior or defendant). Excelsior appealed to this court, asserting jurisdiction on the basis that the taking and detention of the mobile home under an order of delivery issued by the clerk, without prior notice or an opportunity to be heard, was violative of defendant’s constitutional right to due process under the fourteenth amendment to the U.S. Constitution. We affirm.

Mr. and Mrs. Richard West purchased a mobile home which they financed under a security agreement with plaintiff. They then placed that home on a lot which they held under a contract for purchase with defendant. Thereafter, following default under the security agreement, plaintiff sought and obtained judgment against the Wests for possession of the mobile home.

The Wests also defaulted on their contract to purchase the lot from defendant and it then sought and obtained a judgment against the Wests for rent and possession of said lot. The defendant’s attorney then advised plaintiff’s attorney that defendant was making claim to the mobile home.

On March 6, 1973, plaintiff commenced the present suit in replevin against Excelsior and some people by the name of Gibson. The verified petition therein alleged that a judgment of possession had been obtained by plaintiff against the Wests, that plaintiff thereby became entitled to possession of the mobile home, that defendant, through its attorney, had notified plaintiff’s attorney that defendant was making a claim to the mobile home and was denying plaintiff’s right thereto, that plaintiff had been damaged by Excelsior’s wrongful taking and retention of the mobile home, that plaintiff was in danger of losing said property unless possession was restored to it and that if possession of the mobile home could not be restored to plaintiff, it should recover from defendant the sum of $8,000, the value of the mobile home, plus damages.

Based upon the verified petition and without notice to defendants or a hearing being accorded to them, the clerk issued an order of delivery for immediate seizure of the mobile home. Acting pursuant to that order, the sheriff seized the mobile home and delivered it to plaintiff.

Excelsior then moved the court to order redelivery of the property, claiming that issuance of the order of delivery without notice and hearing violated due process, that the order of delivery was void because the affidavit by plaintiff was insufficient under § 533.010, and that the replevin petition failed to state a cause of action. The trial court overruled this motion, after which defendant sought from the Missouri Court of Appeals, Kansas City District, a writ of mandamus directing the trial court to order redelivery of the property. The court of appeals issued its alternative writ of mandamus, on receipt of which the trial court, on June 4,1974, entered its order for plaintiff to redeliver the property to defendant.

Plaintiff did not return the mobile home to Excelsior and on June 20, 1974, defendant moved the court to dismiss plaintiff’s petition because of plaintiff’s failure to redeliver in accordance with the order of June 4, 1974. The court overruled this motion and set the case for trial on the merits on July 23, 1974. Thereafter, defendants answered and filed their respective counterclaims.

On July 23, 1974, the date the case was set for trial, a pretrial conference was held. The transcript of that conference includes the following:

“THE COURT: All right, now I will ask Mr. Muller to state what he will stipulate.
“Mr. Muller: Yes, we have agreed that as far as the plaintiff’s claim to possession on the date of the filing of the petition, that they had a right to possession.
“That in stipulating to this, we wish to preserve the right to try the issues of the right of the defendant’s possession to notice and opportunity to be heard on their claim which has been made prior to the time of the filing of the suit.
“That the real estate — that the mobile home was a part of the real estate.
“The effect is as far as the basic claim of the possession is concerned, at the time of the filing of the suit, the plaintiffs were entitled to it.
“Mr. Koerner: All you are saying then is, you are asking to preserve the right to be heard on the issues of the defendant’s right to a hearing, but you are conceding that his claim for possession did not give him a superior claim to the plaintiff.
“His ground that it has become part of the real estate did not give him the superior right of possession.
“Mr. Muller: Right.”

Additional discussion followed during which the following also appears:

“Mr. Muller: I want to preserve the fact that we did make a claim that apparently Calvin thought was the legal right to possession at the time he made it and you can argue — you have the right to agrue [sic] that you had a claim that you are the owner of the property.
“Mr. Sloan: You are stipulating that on March 6, 1973, that the Morris Plan Company had the superior right of possession, and you are holding in reserve the right to raise the issues, if any, of the wrongful taking, after the ruling by the Kansas City Court of Appeals, and any damage that might apply thereto?
“Mr. Muller: Right, yes.”

At the conclusion of the pretrial conference, the following order was entered:

“Now on this 23rd day of July, 1974, come the parties hereto by counsel. Also comes the jury heretofore summoned. Both Plaintiff and Defendants are granted leave to file Amended Pleadings. Defendants stipulate that Plaintiff had a superior right to possession of chattels described on the date of filing suit. Parties stipulate that issues under the counterclaim herein be continued pending decision of Kansas City Court of Appeals on action for Order for Mandamus. Wherefore it is by the Court ordered that the above cause be continued, and the jury is discharged.”

On January 7, 1975, plaintiff filed a motion asking the trial court to render summary judgment for plaintiff on its petition in replevin and on defendants’ counterclaims. Thereafter, on January 17, 1975, the court sustained said motion for summary judgment, thereby granting possession to plaintiff and dismissing Excelsior’s counterclaims. The judgment recited the fact that the writ of mandamus previously issued by the court of appeals had been dissolved. The counterclaim of Scott Gibson for damages to his property was not disposed of by said summary judgment. It was ordered set for trial but subsequently Gibson dismissed it.

Subsequently, the trial court overruled Excelsior’s motion to set aside the order allowing summary judgment and defendants appealed. The notice was not timely filed but leave for late notice of appeal was granted.

In claiming that plaintiff’s prejudgment seizure of the mobile home from defendants’ possession was an unlawful taking of property without due process of law, the first point asserted on appeal, defendant relies primarily on Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); and State ex rel. Williams v. Berrey, 492 S.W.2d 731 (Mo. banc 1973). Fuentes holds that procedural due process requires notice and an opportunity to be heard before a state may authorize prejudgment seizure of property in the possession of one person upon application of another. North Georgia Finishing applies that same basic principle so as to require notice and hearing in garnishment proceedings. Berrey, on the basis of Fuentes, held that before an order of delivery is made following the filing of a petition in replevin, the judge (not the clerk) must hold a prejudgment hearing and must make a finding of the probable validity of plaintiff’s claim.

The underlying objective of requiring notice and hearing in situations such as those in Fuentes, North Georgia Finishing, and Berrey is to provide a mechanism whereby a judicial officer can and does determine in advance of the requested delivery of possession that such delivery will not result in arbitrary and unfair deprivation of the possession which defendant then has. This basic purpose was articulated in Fuentes v. Shevin, 407 U.S. at p. 97, 92 S.Ct. at 2002, when the court said:

“ * * * Since the essential reason for the requirement of a prior hearing is to prevent unfair and mistaken deprivations of property, however, it is axiomatic that the hearing must provide a real test. ‘[D]ue process is afforded only by the kinds of “notice” and “hearing” that are aimed at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property . .’ Sniadach v. Family Finance Corp., supra, 395 U.S. at 343, 89 S.Ct. at 1823 [23 L.Ed.2d 349], (Harland, J., concurring). * * * ”

The same thought was expressed earlier in that same opinion, 407 U.S. at p. 81, 92 S.Ct. at 1994, in these words:

“ * * * For when a person has an opportunity to speak up in his own defense, and when the State must listen to what he has to say, substantively unfair and simply mistaken deprivations of property interests can be prevented. * * *

In this case plaintiff admits that the seizure of the mobile home was without notice or a prior hearing (or even the immediate post-seizure hearing approved in Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974)). Even so, we conclude that defendant is not entitled on the authority of Fuentes, North Georgia Finishing or Berrey to relief in this case. This is so because in a pre-trial conference held July 23, 1974, Excelsior admitted and stipulated that on March 6, 1973, the date the replevin suit was filed and possession was obtained, plaintiff had a right to possession of the mobile home and that said right was superior to whatever claim to possession Excelsior had.

If, when plaintiff filed its replevin action, Excelsior had actually received notice and a hearing had been held, the purpose thereof would have been to enable the judicial officer to determine whether at that time plaintiff was entitled to possession. This would have given defendant the opportunity to show that it possessed a superior right of possession. In other words, the hearing would have been to prevent defendant from being unfairly and mistakenly deprived of the possession which it then had. By its admission and stipulation, defendant Excelsior has furnished the answer which said hearing would have sought. That answer, as shown by the stipulation, was that plaintiff, not Excelsior, had the superior right to possession of the mobile home. In other words, that which would have been determined by the hearing called for by Fuentes and North Georgia Finishing has been supplied by the admission and stipulation of Excelsior. Following that stipulation there was no dispute as to the right of plaintiff to possession at the time of the taking under the writ of replevin. Under such circumstances, defendant has conceded by its admission that even though the taking was without notice or hearing, there was not a taking which unfairly or mistakenly deprived it of possession to which it was entitled. Accordingly, we overrule defendant’s first assignment of error.

For a second point defendant urges that plaintiff failed to comply with the requirements of § 533.010 with respect to filing an affidavit showing certain factual information. Such a deficiency, argues defendant, was jurisdictional and made the seizure of the mobile home fatally defective. In support of that contention, it cites Kimball v. Silvers, 22 Mo.App. 520 (1886), for the proposition that such affidavit is “in the nature of a jurisdictional fact, or act, that must precede the order of delivery”. It is true that the court used the quoted language, but defendant’s brief fails to take cognizance of what the court said immediately thereafter at p. 525:

“But the statute provides that this affidavit may be made at the time of filing the petition, ‘or at any other time after-wards, before the rendition of judgment in the cause’.
“So, regarding the first affidavit as no affidavit, the plaintiff, or any one in his behalf, had the right to make the required affidavit at the time the second one was made. By section 3845, it was then the duty of the court to make the order of delivery. So had the court sustained the defendant’s motion upon the presentation of the proper affidavit it was bound to make the delivery order, under which the sheriff would have been required to retake the property and restore it to the plaintiff. Why then go through the idle ceremony of first sustaining the motion, and in the next instant order the sheriff, before he could get out of the court house, to retake it? It is no answer to this fruitless form to say that defendant could not give a forthcoming bond and retain the property under the first affidavit, because had he done so, it would have been a recognition of the validity of the affidavit. Conceding this to be correct, which we do not decide, what loss would he have sustained between the sustaining his motion, had it been sustained by the court, and the making of the second affidavit? The law requires no idle ceremonies. State ex rel. v. Koontz, 83 Mo. 323. It looks to substance rather than to empty form.”

While it is true that plaintiff did not file a separate affidavit when he filed his petition in replevin and defendant argues that the verified petition did not fully comply with the statute, plaintiff did, in fact, file an affidavit thereafter on October 18, 1973, which was before the judgment was entered. This is permitted by the language of § 533.010, just as it was at the time Kimball was decided. Defendant makes no complaint about the contents of that affidavit. Under such circumstances we find no basis for giving relief to defendant on this assignment, particularly in view of defendant’s stipulation that plaintiff was entitled to possession of the mobile home at the time it was seized under the writ of replev-in and that such right was superior to any claim to possession by defendant.

Defendant next argues that in a re-plevin action a right to possession at the time of trial prevails over a right of possession when the action was filed. It contends that notwithstanding its judicial admission that plaintiff had a superior right of possession when suit was filed, summary judgment for plaintiff should not have been entered because when said summary judgment was entered, defendant had a superior right to possession. This contention is based solely on the fact that on June 4, 1972, the trial court, acting pursuant to the court of appeal’s alternative writ of mandamus, ordered plaintiff to redeliver the mobile home to defendant. That right, says defendant, continued to exist at the time summary judgment was entered.

We conclude that defendant’s position is not tenable. In the trial court’s view, the order of June 4, 1972, for redelivery of the property was not in effect when summary judgment was entered. When summary judgment in favor of plaintiff was entered on January 17, 1975, the trial court noted specifically thersin that said writ of mandamus (pursuant to which the order of redelivery had been entered) had been dissolved by the court of appeals. Said judgment did not specifically state that the order of redelivery of June 4, 1972, was or had been rescinded, but subsequently, in overruling defendant’s motion to set aside the summary judgment, the trial court stated that dismissal of the writ of mandamus should be considered as nullifying any claim of defendant to a right of possession under the prior redelivery order. Hence, the trial court has ruled that defendant did not, when summary judgment was entered, have a right to possession of the mobile home under the redelivery order. The record does not justify us in holding otherwise.

We conclude that what occurred with reference to the redelivery issue did not nullify the effect of defendant’s admission that plaintiff had a superior right to possession of the mobile home, nor does it entitle defendant to reversal on this appeal.

Judgment affirmed.

SEILER, C. J., and MORGAN, HOLMAN, BARDGETT and HENLEY, JJ., concur.

DONNELLY, J.,

concurs in result.

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

      . The writ of replevin was delivered to the sheriff who attempted to execute it on December 29, 1972, but because of the weather and condition of the roads, he was unable to obtain possession of the mobile home. Apparently, there was no further attempt to execute that writ.

      . The petition does not make clear why the Gibsons were named as defendants. It simply alleges “that defendants are the operators and managers of a certain mobile home addition in Ray County”.
      In addition to answering, Scott Gibson filed a counterclaim in which he asserted that he owned a certain road grader which was located in the mobile home addition where the West’s mobile home was located. He alleged that plaintiff, after wrongfully entering the property, operated and damaged the grader. However, Gibson later dismissed that counterclaim without prejudice and the Gibsons are not parties to this appeal.

      .The petition in replevin, in addition to seeking possession of the mobile home, sought an air conditioner and washer/dryer with which it was equipped, but the sheriffs return recited that these had been removed before he took possession under the order of delivery.

      . For the same reasons. Guzman v. Western State Bank of Devils Lake, No. Dak., 516 F.2d 125 (8th Cir. 1975), is inapplicable.

      . Sec. 533.010 provides as follows:
      “If the plaintiff claim in his petition the possession of specific personal property, he may, at the time of filing his petition, or at any other time afterward, before the rendition of judgment in the cause, file his affidavit, or the affidavit of some other person in his behalf, showing:
      “(1) That the plaintiff is the owner of the property claimed, sufficiently describing it, or is lawfully entitled to the possession thereof;
      “(2) That it is wrongfully detained by the defendant;
      “(3) The actual value thereof;
      “(4) That the same has not been seized under any process, execution or attachment against the property of the plaintiff; and
      “(5) That plaintiff will be in danger of losing his said property, unless it be taken out of the possession of the defendant, or otherwise secured. (R.S.1939, § 1788).”


source: Caselaw Access Project

author: FINCH, Judge. BARDGETT, Judge SEILER, Chief Justice

license: Public Domain

text:
    STATE of Missouri ex rel. Ogden M. CAIN, Relator, v. The Honorable Charles V. BARKER, Judge of the Circuit Court of Dallas County in the Thirtieth Judicial Circuit of Missouri, Respondent.
    No. 59283.
    Supreme Court of Missouri, En Banc.
    Sept. 13, 1976.

      Meredith B. Turner, Turner, Reid & Duncan, Springfield, for relator.
    Thomas G. Strong and Mathew W. Plae-zek, Jr., Farrington, Curtis, Strong, Knauer & Hart, Springfield, for respondent.
   FINCH, Judge.

This is an original proceeding in prohibition. Relator, defendant in a wrongful death action arising out of a highway accident, seeks to prevent respondent judge from enforcing therein an order wherein he directed relator to produce for inspection and copying by plaintiff the written statements given by relator to an adjuster for his insurance carrier. We issued our provisional rule in prohibition on November 10, 1975. We now make that rule permanent, prohibition being an appropriate remedy to prevent enforcement of discovery requiring production of privileged documents. State ex rel. Terminal Ry. Ass’n of St. Louis v. Flynn, 363 Mo. 1065, 257 S.W.2d 69 (banc 1953).

On November 17, 1974, while relator was driving a truck in Dallas County, Missouri, he struck a camper driven by Frank S. Miller, resulting in the death of Miller. His widow thereafter brought suit for damages. At the time of the accident, relator was an employee of the House of Webster, Inc. and was driving on their behalf a tractor-trailer rented from Ryder Truck Rental, Inc. Insurance policies in force at the time provided liability insurance coverage to House of Webster, Inc. and to relator, the driver. In addition, one of the policies was endorsed to provide coverage to Ryder Truck Rental, Inc.

On November 18, 1974, the day after the accident, and again on November 20, 1974, James Owens, an insurance adjuster for Crawford & Company, talked to relator at length about the accident and took written statements with reference thereto. It is the production of these statements which the respondent has ordered.

On November 26, 1974, a representative of decedent Miller’s insurance company contacted relator and attempted to obtain a statement concerning the accident but Cain refused to discuss the occurrence or to give a statement to said adjuster.

The following spring (May 27, 1975), attorneys for plaintiff in the wrongful death action took Cain’s deposition. Thereafter, on July 10, 1975, they filed a motion which sought on the basis of rule 56.01(b)(3) to have the circuit court require Cain to produce and permit plaintiff to inspect and copy the statements given by him to James Owens on November 18 and 20, 1974. As grounds for such discovery, plaintiff’s motion alleged that Cain in his deposition had been unable to provide answers to numerous questions propounded to him, that Cain’s memory of the accident at the time he gave the statements to James Owens was better than when his deposition was taken, and that plaintiff had substantial need for said information and was unable to obtain the substantial equivalent by other means.

In support of that application, plaintiff’s attorney, Thomas Strong, filed an affidavit which stated as follows: that Cain gave two statements to his insurance carrier soon after the accident in question; that he refused to talk to anybody else about the facts until his deposition was taken; that Cain’s account of the accident varied considerably from that of other witnesses whose depositions had been taken; that Cain, when his deposition was taken, did not remember several crucial facts; and that, based on the foregoing, counsel believed that the statements given immediately after the accident might be useful in refreshing Cain’s memory and might contain damaging admissions which could be presented by plaintiff to the jury as such.

In response, Meredith Turner filed an affidavit wherein he stated as follows: that he and his law firm were then representing Cain and had represented him prior to November 26, 1974; that Cain had been instructed by his firm not to discuss facts of the accident with anyone other than the members of the law firm or persons assisting it in investigation of the accident; that the conferences between relator and James Owens referred to by counsel for the plaintiff (those of November 18 and November 20, 1974) occurred after Cain had been advised not to talk to anyone other than members of the Turner firm or persons assisting it; and that at the time of said conferences James Owens was assisting the Turner firm in the investigation of the subject accident. The affidavit also asserted that the production of the statements given by relator to James Owens would violate the confidential relationship of attorney and client between the Turner firm and Cain.

On September 18, 1975, respondent judge sustained plaintiff’s motion and ordered Cain to produce for inspection and copying the statements given by him to James Owens. Thereupon, relator filed a motion for a protective order, alleging, inter alia, “that the statements of Ogden Cain as to which discovery is now sought by plaintiff were obtained by James Owens at the direction and under the supervision of the undersigned attorneys who were then representing Ogden Cain, and were taken in anticipation of litigation and to prepare for trial” and “that the said statements comprise privileged material constituting communication between attorney and client, and, further, constitute work product”. The motion went on to state that since these statements were privileged they were not discoverable under the provisions of rule 56.01. Thereafter, the trial court indicated that he would overrule the motion for protective order but he had not actually done so at the time relator filed his petition for writ of prohibition herein.

The language of rule 56.01(b)(1) authorizes discovery of matters not privileged. This necessarily means that privileged matters, such as communications between attorney and client, are not discoverable unless the privilege is waived by the client. Hence, the first question to be determined is whether the communications of November 18 and 20, 1974, by relator Cain to James Owens come within the attorney-client privilege. If they do, they are not discoverable and the protective order should be entered, unless the privilege has been waived.

In order to determine the question of whether the communications by Cain to James Owens were privileged, we look to the record before us in this proceeding which under rule 84.24 consists of “the petition for the writ, together with suggestions in support thereof, any exhibits accompanying said petition, the writ and return of service thereon, together with the return the respondent made to the writ, and all other papers, documents, orders and records filed in the appellate court”. The trial court heard no oral testimony on the motion to produce or on the motion for the protective order, but did have before it affidavits of Thomas Strong and Meredith B. Turner which had been filed in connection with the motion to produce. The affidavit of Thomas Strong does not purport to recite facts with respect to the relationship between Cain and James Owens or between Cain and the Turner firm other than to recite that Cain gave the two statements to his insurance carrier. The affidavit of Meredith B. Turner does address the question of these relationships. It stated first that Turner and his law firm were at the time of the affidavit representing Cain and had represented him prior to November 26, 1974. In paragraphs 2 and 3 of his affidavit Turner recites that Cain had been instructed not to discuss the facts of the accident with anyone other than members of the Turner firm or persons assisting it in the investigation and that the conferences between Cain and Owens in which Cain gave the two statements were held after Cain had been so advised. In addition, Turner went on to say that “at the time of that conference, Mr. James Owens was assisting the law firm of Turner, Reid & Duncan in the investigation of the subject accident”.

It is true, as respondent points out, that the Turner affidavit does not at any time recite a specific date on which the Turner firm was employed and began its representation of Cain in this matter. So far as dates are concerned, it simply says that Turner and his firm were representing Cain before November 26,1974. Even so, it is arguable, as claimed by relator, that the Turner affidavit alleges enough to permit a determination therefrom that Owens was working under the direction of the Turner firm when he took the statements from Cain on November 18 and 20, 1974; also that an attorney-client relationship between Cain and the Turner firm existed from and after that time. If it did, then the statements made by Cain to James Owens on November 18 and 20,1974, were statements to an authorized agent or representative of the Turner firm in the investigation of this matter and were privileged.

We have concluded that in deciding whether the statements of Cain to James Owens are privileged it is unnecessary for us to resolve from the language of the Turner affidavit or by means of a subsequent hearing thereon whether an actual attorney-client relationship existed between the Turner firm and Cain prior to the conferences of November 18 and 20, 1974. We reach this conclusion on the basis that it is clear that an insurer-insured relationship existed between the insurance company and Cain at the time of the statements and, for reasons subsequently enumerated, we conclude that by reason of such relationship, the statements given by Cain to his insurer fall within the protection of the attorney-client privilege.

Missouri courts have not ruled on this question of whether communications by an insured to his insurer are privileged. The question was raised in Hutchinson v. Steinke, 353 S.W.2d 137 (Mo.App.1962), but it was not decided therein because defendant did not dispute the proposition that such a communication would be privileged. Accordingly, the opinion at p. 140 stated that “for the purpose of this opinion we will assume, without deciding, that a statement given by an insured to his liability insurer, concerning an event which may be the basis of a claim against him covered by his policy, is a privileged communication under an extension of that doctrine as applied to the relationship of attorney and client”. Hence, the matter is one of first impression.

An annotation entitled “Privilege of Communications or Reports Between Liability or Indemnity Insurer and Insured”, 22 A.L.R.2d 659 (1952) states at p. 660:

“According to the weight of authority, a report or other communication made by an insured to his liability insurance company, concerning an event which may be made the basis of a claim against him covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and the communication is intended for the information or assistance of the attorney in so defending him.”

In the same vein, 81 Am.Jur.2d, Witnesses, § 194 (1976) states at p. 228:

“It is the rule generally followed that a report or other communication made by an insured to his liability insurance company, concerning an event which may be made the basis of a claim against him and which is covered by the policy, is a privi- ' leged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and if the communication is intended for the information or assistance of the attorney in so defending him. Under this rule the company is regarded as a mere intermediate agent to transmit the communications to the attorneys of its claims department or to an eventual trial attorney if an action is brought. * *”

Numerous decisions from other states support the rule enunciated in the foregoing texts. For example, in People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15 (1964), Della Emberton was involved in an automobile collision wherein two persons were killed. She was covered by a public liability policy which contained the usual cooperation clause and a clause requiring the insurer to defend any suits brought against her. After the collision the insurance company made an investigation and its investigator took a written statement from Della Em-berton covering details of the occurrence. Thereafter, she was charged with driving while under the influence of intoxicating liquor. The attorney employed by her to defend that case went to the insurance company office and requested use of its investigation file. This attorney had on occasion represented this insurance company and it made its file available to him. That file contained the written statement of Della Emberton. In it she admitted that she had consumed several bottles of beer in two taverns before the accident.

Subsequently, Della Emberton’s attorney was served with a subpoena duces tecum to produce his client’s statement given to the insurance company. On instructions of his client, he declined, basing his refusal on the grounds that to do so would violate his client’s rights against self-incrimination and that the written statement was a privileged communication between attorney and client. He was adjudged guilty of contempt and appealed. The Supreme Court reversed the conviction, holding that the statement of Della Emberton to her insurer was privileged. The reasoning of the court is persuasive and we quote it at length for that reason. The court said, 197 N.E.2d at 17:

“We therefore first consider the character of the communication between Della Emberton and her insurance company while such communication remained in the exclusive possession of the insurer. The Appellate Court’s determination that the communication was privileged at that time is supported by substantial authority in other States. Vann v. State (Florida, 1956), 85 So.2d 133; Heffron v. Los Angeles Transit Lines (1959), 170 Cal.App.2d 709, 339 P.2d 567, 74 A.L.R.2d 526; Gass v. Baggerly (Tex.Civ.App.1960), 332 S.W.2d 426 (statutory provision incorporating rule); Wojciechowski v. Baron, 274 Wis. 364, 80 N.W.2d 434; In re Heile, 65 Ohio App. 45, 29 N.E.2d 175; In re Klemann, 132 Ohio St. 187, 5 N.E.2d 492, 108 A.L.R. 505; Schmitt v. Emery, 211 Minn. 547, 2 N.W.2d 413, 139 A.L.R. 1242; Hollien v. Kaye, 194 Misc. 821, 87 N.Y.S.2d 782; Westminster Airways, Ltd. v. Kuwait Oil Co., 1 K.B. 134, Anno. 22 A.L.R.2d 648; State v. Kociolek, 23 N.J. 400, 129 A.2d 417.
“Certain Federal cases, however, have come to a contrary conclusion. Gottlieb v. Bresler, D.C., 24 F.R.D. 371; Gordon v. Robinson, D.C., 109 F.Supp. 106; Colpak v. Hetterick, D.C., 40 F.Supp. 350.
“We think the rationale of those cases upholding the privileged nature of communications between insured and insurer where the insurer is under an obligation to defend is more persuasive. We concede that such communications are normally made by the insured to a layman and in many cases no lawyer will actually be retained for the purpose of defending the insured. Nevertheless, by the terms of the common liability insurance contract, the insured effectively delegates to the insurer the selection of an attorney and the conduct of the defense of any civil litigation. The insured is ordinarily not represented by counsel of his own choosing either at the time of making the communication or during the course of litigation. Under such circumstances we believe that the insured may properly assume that the communication is made to the insurer as an agent for the dominant purpose of transmitting it to an attorney for the protection of the interests of the insured. We believe that the same salutary reasons for the privilege as exist when the communication is directly between the client and attorney were present when Della Emberton made her statement to the investigator for her insurer. We therefore conclude that public policy dictates that the statement given by Della Emberton to her insurance carrier was clothed with the attorney-client privilege while in control of the insurer.”

A similar result was reached in Brakhage v. Graff, 190 Neb. 53, 206 N.W.2d 45 (1973), wherein plaintiff in a personal injury action sought by motion to require defendants to produce for inspection and copying a statement given by defendant Kathryn Graff to a field representative of her insurer three days after the accident. Sometime later a suit was filed and at that time the insurance company employed attorneys to represent Kathryn Graff. Thereafter, the motion to inspect was filed. The court held that the statement was privileged even though made to a field representative of insurer rather than directly to an attorney representing insured and even though an attorney was not employed until later, saying at 47-48:

“Although there is authority to the contrary, the weight of authority appears to support the rule that a statement by an insured to his liability insurer is privileged. ‘According to the weight of authority, a report or other communication made by an insured to his liability insurance company, concerning an event which may be made the basis of a claim against him covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and the communication is intended for the information or assistance of the attorney in so defending him.’ Annotation, 22 A.L.R.2d 659. See also, Heffron v. Los Angeles Transit Lines, 170 Cal.App.2d 709, 339 P.2d 567; Travelers Indemnity Co. v. Cochrane, 155 Ohio St. 305, 98 N.E.2d 840; Gene Compton’s Corp. v. Superior Court, 205 Cal.App.2d 365, 23 Cal.Rptr. 250; Lantex Constr. Co. v. Lejsal (Tex.Civ.App.), 315 S.W.2d 177; People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15; Vann v. State (Fla.), 85 So.2d 133.
“The fact that the statement was made to a field claims representative of the insurer who was not a lawyer is not controlling. The privilege extends to statements made to agents of an attorney. As stated in VIII Wigmore on Evidence, § 2301, p. 583: ‘It has never been questioned that the privilege protects communications to the attorney’s clerks and his other agents (including stenographers) for rendering his services. The assistance of these agents being indispensable to his work and communications of the client being often necessarily committed to them by the attorney or by the client himself, the privilege must include all the persons who act as the attorney’s agents.’
“The statements involved here were obtained in performance of the insurer’s obligation to investigate and settle or defend claims made against the defendants and were intended for the use of the attorneys selected by the insurer to represent the defendant.”

In reaching a similar result, the court in Hollien v. Kaye, 194 Misc. 821, 87 N.Y.S.2d 782, 785 (Sup.Ct.1949), said:

“A communication by letter between an attorney and his client or the latter’s agent is privileged, as much as an oral communication between the attorney and the client. LeLong v. Siebrecht, 196 App.Div. 74, 187 N.Y.S. 150.
“The statements of these defendants were intended as a communication by them to the attorney ultimately to be retained for them by the carrier, under their contract. The delivery of the statements by these defendants to the carrier’s representative, whether he be layman or lawyer, constitutes the carrier and such representative the agent of defendants, to transmit such statements to their attorney, when he has been selected and retained by the carrier.
“The fact that defendants did not select their own counsel is of no moment. They had a contract, for which they paid a valuable consideration, which obligated the carrier to provide them with counsel. The carrier stood in the position of an agent of these defendants to select and retain their attorney for them.”

In further explanation of the ruling, the court said at 786:

“In our present complex society and vast use of motor vehicles, the insurance against liability on the part of owners of motor vehicles has become the rule rather than the exception. In fact, in some states such insurance is compulsory. We, in this state, have a modified form of compulsory insurance.
“It follows that in case of an accident, the owner of a motor vehicle is bound by the terms of his contract, to make a full and prompt report to his carrier. The assured should be encouraged to, rather than discouraged from, making a full and complete disclosure to his insurance carrier. Let us suppose that an assured does so and furnishes his statement to a lay representative of his carrier, before its general counsel has ever heard of the case and could not yet be said to be the attorney for the assured; or before some other attorney is engaged to represent the assured, and that hence, it might be held that the statement may not come either within the letter or the spirit of Section 353, Civil Practice Act. Let us suppose further that the statement thus given by the assured to his carrier, in compliance with his contract, and on the assumption that he is furnishing the statement to the agency which he has paid to protect him, reveals the commission of acts which constitute the crime of culpable negligence. Should the assured be prevented from unbosoming himself of the true facts concerning an accident to the very entity, which, either through voluntary choice or under legal compulsion, he has paid to protect his interests in the event of an accident, through fear that his statement could be reached by the person who will instigate against him either civil or criminal proceedings or both? Or should fear of self-incrimination or fear of a recovery beyond policy limits subjugate the assured to the point of concealing the true facts to the very one whom he has paid in advance to protect him in just such a contingency.
“It seems to this court that it would be contrary to sound public policy to permit the discovery and inspection of statements of a defendant or a prospective defendant made to his own insurance carrier, whether made before or after suit is instituted or to its lay representatives, either before or after an attorney has been formally selected by the carrier to represent its assured.”

Respondent urges that relator did not raise the issue of privilege in a timely fashion and, hence, waived the privilege, citing Rock v. Keller, 312 Mo. 458, 278 S.W. 759 (1926), and Wren v. St. Louis Public Service Co., 355 S.W.2d 365 (Mo.App.1962). In Rock the court did say that privilege must be raised in a timely fashion or is waived but went on to say, 278 S.W. at 766:

“ ‘The proper time for objection is when a question calling for a disclosure of privileged matter is asked and before it is answered.’ ” (Emphasis supplied.)

Here the objection by means of the motion for protective order was timely because it was raised when a request for disclosure of the statements was made but before the request was answered or complied with by furnishing the documents for inspection.

We also conclude that Wren does not support respondent’s position herein. In that case interrogatories were submitted and answered. When plaintiff attempted at trial to read the interrogatories and answers, defendant objected on the basis of privilege. The court held that the defendant by answering had waived the privilege. That has not occurred in this case.

Next, respondent asserts that we should find that relator has waived any privilege with reference to the statements in question “since relator has denied liability and can be expected to testify at trial at which time he will waive his privilege, and, therefore, the interests of justice demand that the statements be produced in advance of trial”. Respondent relies on the case of State ex rel. McNutt v. Keet, 432 S.W.2d 597 (Mo. banc 1968), to support this contention. However, respondent overlooks the fundamental difference between the situation here and in Keet. In Keet the one entitled to the protection of the physician-patient privilege brought suit for damages and we pointed out that she elected to do so and that it was evident that she could not prosecute her action for damages without waiving that privilege. As the court said, at p. 601:

“ * * * Sooner or later she must take the stand herself and tell about her injuries and about going to her doctors. Inevitably she must call her doctors to the stand to testify about her injuries and treatment if she expects to recover anything. Her conduct in maintaining the action, it having become apparent that her claim of injuries and aggravation of previously existing conditions is to be among the subjects of dispute, shows that she intends and is willing to abandon the privilege.”

In this case relator has not instituted the suit involving the collision in which he was involved. He is a defendant, brought into court involuntarily. He has not indicated, as did the plaintiff in Keet, a willingness and an intention to waive the privilege available to him. We conclude that Cain has not waived his privilege.

In view of the fact that we have concluded that the statements sought are privileged and, hence, not subject to discovery under rule 56.01, it is unnecessary for us to consider whether respondent in seeking the statements made a sufficient showing of substantial need therefor and that she was unable without undue hardship to obtain the substantial equivalent as required by rule 56.01(b)(3).

We make permanent the provisional rule heretofore entered.

HOLMAN, HENLEY and DONNELLY, JJ., concur.

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

MORGAN, J., concurs in separate concurring opinion of BARDGETT, J.

SEILER, C. J., dissents in separate dissenting opinion filed.

BARDGETT, Judge

(concurring).

I concur in the principal opinion but desire to state that my concurrence is restricted to the specific factual situation presented in this case, to wit, an individual insured driver gives a statement to the adjuster for his own insurance company which has the obligation to defend that insured.

SEILER, Chief Justice

(dissenting).

I respectfully dissent. As I understand the principal opinion, it finds it unnecessary to determine whether there was an attorney-client relationship between Cain and the Turner firm on November 18 and 20, 1974, the dates on which the insurance adjuster took Cain’s statement. The principal opinion says it is arguable that the relationship did exist, but it is not necessary to resolve this question inasmuch as it is clear in any event that an insurer-insured relationship existed between the insurance company and Cain at the time of the statements; therefore, the statements given by Cain to his insurer fall within the protection of the attorney-client privilege and privileged matters are not discoverable. Rule 56.01(b)(1).

The net effect of this, it seems to me, is to clothe with privilege whatever information is furnished the insurance adjuster by the insured, whether it is reduced to writing or is in the form of notes taken by the adjuster or dictated by him subsequently in a memorandum or simply carried in his head. There really is not and could never be any true attorney-client relationship existing between a lay adjuster and the insured, but nevertheless we are going to treat it as though the insured were in fact talking to his lawyer, because in the indefinite future there might be a damage suit filed and the lawyer selected by the insurer to defend the case would then have use for the insureds’ statement.

I have serious doubts about the advisability of making any statements taken by an insurance adjuster immune from discovery. Automobile liability insurance companies and insurance companies in general are in the business of insuring persons, firms, and corporations against loss and liability from a variety of sources. Investigation of claims of all sorts is a matter of routine by insurance companies. It is done when a claim is reported, regardless of whether there is a probability of litigation. Further, it is well known that only a small fraction of claims involve litigation. The vast majority are settled without litigation and without lawyers. When an insurance adjuster takes a statement from an insured for an insurance company, he is doing no more than performing the routine business of the insurance company. Instead of liberalizing discovery by the adoption of our new rule 56 in 1975 (which I believe is what the court intended to do) the rule announced by the principal opinion would shield from discovery the internal documents of insurance companies obtained in the normal routine of their business relating to the claims of their insureds.

In my opinion, we are not giving proper consideration to the changes made by the 1975 amendment to our rule 56, which was based on the 1970 amendments made to federal rule 26. Without exception, the cases relied upon by the majority opinion were decided or rely on cases decided prior to the 1970 amendments to the federal rules, and of course do not consider the situation in the light of those changes or the continued trend toward expanded discovery which frowns upon rewarding parties for hiding or obscuring potentially significant facts. The majority opinion creates a new privilege in Missouri law (insured-insurer) and thereby nullifies to that extent the provisions of our new rule 56.-01(b)(3).

If a statement obtained by an insurance adjuster from an insured is to be privileged and immune from discovery no matter what, why, in the changes which we made in our discovery rules in 1975, did we in rule 56.01(b)(3) provide that documents “prepared in anticipation of litigation or for trial by . [the] other party’s . insurer . . . ” (emphasis supplied) are discoverable upon a certain showing of need and hardship? We had nothing like that in our rules prior to 1975. In fact, former rule 57.01(b) provided that production should not be required of any writing obtained by the adverse party or his indemnitor or agent in anticipation of litigation or preparation for trial (with the sole exception of a statement given by the interrogating party). The Cain statement would not have been discoverable under the former rule, not because of the attorney-client privilege, but because the rule so provided. Now we are saying it still is not discoverable, even though we have dropped from the rules the provision which made it nondiscoverable. If a statement of an insured taken by an insurance adjuster was to be considered privileged, then there would be no need to make mention of the subject beyond rule 56.01(b)(1) which provides that “Parties may obtain discovery regarding any matter, not privileged . . . ”, and it would make no sense to make further reference to such material and provide for its discovery, which it seems to me is what the above quoted portion of our new rule 56.01(b)(3) does. But if it were meant that such a statement or document is subject to discovery under certain conditions, then the portion of our new rule 56.01(b)(3) above has a meaning and purpose and is not superfluous.

It is true that under the standard automobile liability insurance policy the insurer is obligated to defend the insured if and when he is sued and to provide counsel to handle the case. I doubt, however, if this justifies bringing an insurance company within the protection of the attorney-client privilege, even if we ignore the portion of rule 56.01(b)(3) referred to above.

Examination of the standard liability insurance policy will show that the insurer agrees “to defend, with attorneys selected by and compensated by the company” any suit seeking damages covered by the policy. For his part, the insured agrees to “cooperate with the company and, upon request, attend hearings and trials, assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of any legal proceedings in connection with the subject matter of this insurance.” The insured has no choice in the selection of the attorney; he has no right to change attorneys or fire the company attorney, and in case of any conflict of interest between the insured and the insurer, the attorney’s first loyalty is to the insurer who hired and pays him, not the insured. This is by no means the same as the traditional attorney-client relationship, which is what the courts had in mind when the privilege against disclosure of confidential communications was originally established. We should be most cautious in extending this high privilege, because every such extension removes from the arena of the courts evidence which is highly relevant and which would otherwise be used as a matter of course.

I think we also should remember that there is no requirement in Missouri that the operator of an automobile carry liability insurance and when an individual does elect to carry such insurance then the matter becomes one of contract between him and his insurer. One of the things the insured agrees to do in the contract is to cooperate with the insurer. He agrees to report the accident and to give information respecting the time, place and circumstances thereof. These contractual obligations, voluntarily assumed, require complete information from the insured, not partial or distorted information. As said in 7 Am.Jur.2d, Automobile Insurance, Sec. 178, p. 512: “Under the co-operation clause of an automobile liability insurance policy, it is the duty of the insured to give a full, frank, and complete statement of the cause, conditions, and circumstances of the accident and the conduct of the parties at the time, in order that the insurer may properly present its defense, or determine whether there is a genuine defense. . . [T]he intentional furnishing of false information of a material nature either before or at the trial is a breach of the co-operation clause.

Professor Wigmore points out there are four conditions which are recognized as basic to the establishment of a privilege against the disclosure of communications. He sets them forth as follows (Wigmore on Evidence, McNaughton Revision, Vol. VIII, Sec. 2285): “(1) The communications must originate in a confidence that they will not be disclosed. (2) The element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. (3) The relation must be one which in the opinion of the community ought to be sedulously fostered. (4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.”

Tested by the foregoing, it does not seem to me that a justification has been established for extending privileged communication status to a statement obtained from the insured by an insurance adjuster as a part of the routine investigation of claims for the insurance company. Specifically, it does not seem to me that (1), (2), or (3) above are present and it is speculative as to (4). The communication between the insured and the insurance adjuster originates in the fact that the insured has elected to take out liability insurance and as a part of the contract has agreed to make a full and accurate disclosure to the insurance company of what happened. It is to obtain the liability protection that the insured agrees to make full disclosure. The disclosure made after an accident originates from that source, not because of a confidence that the communications to the adjuster will not be disclosed. If the element of confidentiality were essential to the maintenance of the relation, it would have been provided for in the standard policy, but it is not. Under the law, as earlier said, if the insured does not make a full disclosure he runs the risk of the insurance company being entitled to disclaim coverage. The insured is obligated to tell the insurer the full facts by the terms of the contract, regardless of whether it is kept confidential. Nor do I believe the insured-insurer relationship is one which fits the requirement that it ought to be sedulously fostered. I would think rather that the courts should be neutral in this area, neither encouraging nor discouraging the relation, instead of affirmatively aiding the insured and the insurer by extending the immunity of privilege to statements made to the adjuster by the insured, at the expense of all those who may have legitimate claims and a valid reason for ascertaining what the insured had to say about the accident while it was still fresh in his mind.

As the principal opinion states, many federal cases hold that a statement given by the insured to an insurance adjuster is not privileged. The reasoning of the federal courts is that statements of parties and witnesses taken immediately after the accident constitute “unique catalysts in the search for truth” and where the party seeking discovery is unable for whatever sufficient reason to obtain equivalent information (which plaintiff contends is her situation here but which the majority opinion says is not necessary to decide), then under the federal rule, which is the same as our rule 56.01(b)(3), the statements should be produced. McDougall v. Dunn, 468 F.2d 468 (4 Cir. 1972); further, that the nature of the business of an insurance company involves claims and to make its investigation and statements nondiscoverable would foreclose “almost all internal documents of insurance companies relating to the claims of insureds”. Thomas Organ Co. v. Jadranska Slobodna Plovidba, 54 F.R.D. 367 (D.C.Ill.1972). There is also respectable authority to the same effect in state courts. See 23 Am.Jur.2nd, Depositions and Discovery, Sec. 171. There are a good many automobile damage suits tried in federal court and defended by insurance companies under the federal rules of discovery, but this does not seem to have brought about any breakdown in the insurance industry or produced any hardship on any insured or reluctance to take out liability insurance. I believe this shows that the fear that making statements discoverable is somehow going to impair the operation of liability insurance companies or cause reluctance on the part of insureds to tell the true facts about their driving of motor vehicles is not justified. I would come down on the side of encouraging and enlarging discovery, not restricting it, and therefore respectfully dissent.

Additionally, this case is an illustration of the unfairness that may result if we adopt the rule that a statement given by an insured to an insurance adjuster is immune from discovery.

According to the brief of respondent (and as I understand it, there is no denial of this by relator), efforts were made by others to interview Cain and obtain his statement or version of the accident within a few days after the accident, but Cain refused to discuss the facts of the accident, saying he had already told his adjuster as much as he possibly could. Later plaintiff attempted to take Cain’s deposition, but Cain was unable to recall or could only approximate many of the important details concerning the accident. Specifically, as shown by the transcript of the deposition attached as an exhibit to the petition for writ of prohibition, Cain was unable to recall whether there were any traffic signs where the accident occurred, could not be positive whether there were any vehicles in the vicinity other than the three vehicles directly involved, could not recall how far the camper truck was from where the collision occurred when he first saw the Rambler, could not recall whether the headlights of the Rambler were on bright or dim, had no idea as to the speed of the camper truck, did not know whether or not he (Cain) had entered the curve when he first saw the approaching headlights of the camper, did not recall what gear he was in, could not recall how loud a sound the brakes made, could not recall how far he was from the rear of the Rambler when he first swerved to the left —“it would just be an uneducated guess”— could not recall what part of his vehicle came in contact with the Rambler, could not recall the position of his tractor-trailer unit with respect to the right or left hand lane at the time of collision, did not know how far he travelled from the time he collided with the Rambler until he collided with the camper, could not estimate whether it was more or less than 10 feet, did not know his speed at time of collision with the Rambler, or how much of his trailer was in the wrong lane, or what part of the camper was struck, or how far the Rambler was knocked.

Plaintiff’s husband might have known some of the facts of the accident, but he was killed in the collision. It does not appear whether plaintiff herself was a witness to the accident or not. In any event, Cain was the driver of one of the vehicles and no one else had his exact vantage point and personal knowledge of what he observed and did. The circumstances may well be that plaintiff “has substantial need” of Cain’s statements in the preparation of her case and is unable “to obtain the substantial equivalent of the materials by other means”, a possibility which rule 56.-01(b)(3) provides for. It is clear that had Cain been able to recall the details as to the facts of the accident, he would have been required to disclose the same in his deposition. He could not have refused to testify as to the facts merely because he had incorporated a statement of such facts in his statement to the adjuster. But this means of ascertaining the facts from Cain failed because he could not recall the details at the time of his deposition. In this situation I do not believe that a plaintiff who needs the information must be relegated to continued ignorance of what the defendant knows about the accident when there is in existence a statement or statements which were taken by an adjuster at a time when the matter should have been quite fresh and vivid in defendant’s recollection. I think this is taken care of by rule 56.-01(b)(3). I would hold that Cain’s statements should be produced and would discharge the provisional rule.

      . At common law the privilege accorded communications between client and lawyer included those made to the attorney’s authorized agents such as clerks and stenographers, they being considered media of communication between the lawyer and his client. Tyler v. Hall, 106 Mo. 313, 17 S.W. 319 (1891); VIII Wigmore on Evidence, § 2301 (McNaughton rev. 1961); Kirkland Privileged Communications Between Attorneys and Clients in Missouri, 11 K.C.L.R. 109, 112 (1942); Zenith Radio Corp. v. Radio Corp. of America, 121 F.Supp. 792 (D.Del.1954).

      . Other cases supporting the result we reach include Heffron v. Los Angeles Transit Lines, 170 Cal.App.2d 709, 339 P.2d 567 (1959), Grand Union Co. v. Patrick, 247 So.2d 474 (Fla.App.1971), Vann v. State, 85 So.2d 133 (Fla.1956), Kandel v. Tocher, 22 A.D.2d 513, 256 N.Y.S.2d 898 (1965), Cataldo v. County of Monroe, 38 Misc.2d 768, 238 N.Y.S.2d 855 (Sup.Ct.1963), In re Klemann, 132 Ohio St. 187, 5 N.E.2d 492 (1936), Westminster Airways, Ltd. v. Kuwait Oil Co., 1 K.B. 134, 22 A.L.R.2d 648 (Eng.1951).
      Numerous cases, mostly federal, reach a contrary result, holding that communications between an insured and his insurer are not privileged. In most instances the cases simply announce that conclusion without analyzing the relationship or reasons pro or con as to whether such communications should be privileged. See McDougall v. Dunn, 468 F.2d 468 (4th Cir.1972), Dennhardt v. Holman, 12 F.R.D. 79 (D.Colo.1951), Gottlieb v. Bresler, 24 F.R.D. 371 (D.C.1959); Whitaker v. Davis, 45 F.R.D. 270 (W.D.Mo.1968), Kulich v. Murray, 28 F.Supp. 675 (S.D.N.Y.1939), Burns v. Mulder, 20 F.R.D. 605 (E.D.Pa.1957), Gordon v. Robinson, 109 F.Supp. 106 (W.D.Pa.1952).

      . Ordinarily, facts, information and records obtained or made in the ordinary and usual course of business are discoverable. State ex rel. Terminal R. Ass’n of St. Louis v. Flynn, 363 Mo. 1065, 257 S.W.2d 69 (banc 1953).


author: FINCH, Judge.

text:
    STATE of Missouri, Respondent, v. Martin Karl GOTTHARDT, Appellant.
    No. 59441.
    Supreme Court of Missouri, En Banc.
    Sept. 13, 1976.

      Timothy J. Verhagen, Asst. Atty. Gen., Jefferson City, for respondent.
    Roger M. Hibbits, Florissant, for appellant.
   FINCH, Judge.

Appellant, charged with murder, first degree, was found guilty by a jury of murder, second degree, with punishment assessed at thirty years in the custody of the Department of Corrections. He appeals, asserting lack of sufficient evidence to make a sub-missible case, and errors in the admission of evidence and in instructing the jury. We reverse and remand because of error in Instruction No. 6 submitting murder, second degree.

On the night of July 28, 1973, appellant and three other men, James Doeller, Roscoe Lewis and Bruce Freeman Basemore, drove around in Basemore’s car drinking beer. At some point appellant requested Base-more to drive to the Norfolk & Western railroad yards to enable him to pick up his work clothes. When they arrived, appellant asked Lewis to accompany him into the yards. When appellant and Lewis returned, they were carrying several heavy brass fittings which belonged to the railroad. At first, Basemore refused to allow the fittings to be put in his car, saying he did not want to get into trouble hauling the stuff. When appellant agreed to give Base-more a split of what he received for them, the fittings were placed in the back seat of the car and the men then proceeded to Doeller’s house, driving up into the back yard. The men went into the house and appellant made some calls to try to dispose of the fittings. Basemore told appellant that he wanted at least $50 for his share when the brass was sold, but appellant replied that he wasn’t going to get $50. At Doeller’s request, they went outside to avoid disturbing Doeller’s wife. There the argument continued, Basemore stating to appellant that if he didn’t get $50 out of the proceeds, he would take it out of appellant’s hide. Appellant jumped from the porch and Basemore then “took off” down the driveway.

Doeller testified that he then got in his car to try to catch Basemore to tell him that there was no sense in fighting and that he should get in his car and go home. Doel-ler did not find Basemore and when he returned in two minutes or so, he did not see appellant or Lewis.

Basemore came back up the driveway as Doeller was going into his house. Base-more was mad and said he was going to “get” Doeller and the others for this. Doel-ler replied that he had nothing to do with it and that the dispute was between Basemore and Gotthardt. Basemore, according to Doeller, then began to calm down and got into his car and started the engine. While they were talking, appellant came running back (his back yard was immediately behind Doeller’s back yard) carrying a rifle. Doel-ler thought appellant was going to shoot and tried to grab him, but appellant pushed Doeller down and told him to shut up. Doeller testified that appellant then fired twice into the side window of the Basemore automobile. The car went out of control and ran into a tree, after which appellant shot three or four times through the rear window of the car. Finally, appellant stuck the rifle into the window on the driver’s side and fired two more shots.

Lewis testified that when Basemore returned to the Doeller yard, appellant sent him to tell appellant’s wife that he wanted his rifle, but that appellant followed him and grabbed the gun. He then ran back to the Doeller yard and started shooting at Basemore’s car. Lewis described the shots in about the same manner as had Doeller. In addition, Doeller’s wife testified that after hearing some shots and a car crashing into the tree, she came out of the house and saw appellant stick his rifle in the driver’s window and fire the last two shots. Doeller then went into his house and called the police.

The witnesses testified that after the shooting, appellant, with Lewis’ help, pushed the car back from the tree and guided it down the driveway into the street where they left it. Meanwhile, appellant had his wife take the rifle to the garage of a relative, where it was later recovered by the police.

In addition to introducing the testimony of the three eye witnesses, the State offered evidence that empty shell casings found in the Doeller back yard had been fired in and ejected from the Gotthardt 22 caliber rifle and that two spent 22 slugs, recovered from the body of Basemore, could have been fired from that rifle but were too mutilated for positive identification. Gunshot residue samples, taken from the hands of appellant a few hours after the shooting, tested by neutron activation analysis, indicated that appellant had shot a firearm within a short time before the samples were taken.

In spite of this evidence, including testimony by three eye witnesses, appellant, citing Lohmann v. Wabash Ry., 364 Mo. 910, 269 S.W.2d 885 (1954), argues that we should hold a submissible case was not made on the basis that the eye witness testimony of Doeller, Mrs. Doeller and Lewis was completely contradicted by physical evidence offered by the State. The physical evidence relied on is itemized thus: (1) the spent slugs taken from the body of Basemore were not identified with the Got-thardt rifle; (2) the shell casings, found in the Doeller yard, were not found where they should have been, based on the eye witness accounts of where appellant was when he fired the shots; and (3) the absence of powder fouling on deceased indicated that he was not shot at close range.

We find no merit in this contention. The situations are not analogous. In Lohmann, plaintiff’s decedent collided with a mail train at a public grade crossing. Plaintiff contended that although the train sounded a bell and a whistle as it approached the intersection, the warning was inadequate because a grease shack, located on defendant’s right-of-way, obstructed the decedent’s vision and made the intersection unusually hazardous. Plaintiff presented three witnesses who testified that the grease shack obstructed vision so that it would not have been possible for the decedent to see the approaching train until he was on the tracks. Physical evidence such as photographs, actual measurements, and tests clearly showed that the decedent’s vision could not have been obstructed by a grease shack. The court wholly disregarded the testimony which was clearly contrary to the physical evidence and stated, 269 S.W.2d at 891, that,

“(i)t has long been the rule in this jurisdiction that where testimony is, beyond any reasonable doubt, contrary to established physical facts or laws and facts of common knowledge, it cannot be accepted as substantial evidence.”

By way of elaboration, the court explained that,

“(w)hat may be seen from a certain place under admitted or undisputed conditions and circumstances, and the view or line of sight under such circumstances is a physical fact, clearly and unequivocally demonstrable by photographic evidence.” (Emphasis supplied.)

In this case there was no physical evidence which clearly and unequivocally, beyond any reasonable doubt, established that Gotthardt could not have shot and killed Basemore or that the testimony of the eye witnesses could not be accepted as substantial evidence. It is incorrect to say, as appellant asserts, that the spent slugs had no identification with the Gotthardt rifle. Instead of so testifying, the expert who examined them testified that the dimensions of the rifling grooves on the test bullets fired from appellant’s rifle and on the two spent slugs were identical and that these slugs could have been fired from appellant’s rifle. He added that the comparison of the striations (the fine lines left on the surface) on the spent slugs with those of the test bullets was inconclusive because those on the spent slugs were too badly mutilated. Hence, he could not say positively that the spent slugs had been fired by that rifle, but that did not amount to evidence that the spent slugs had no identification with the Gotthardt rifle.

Nor did the locations in the Doeller yard where the police found the spent casings conclusively disprove the testimony of the eye witnesses that appellant shot and killed Basemore. It perhaps is arguable, as the appellant contends, that they should have been found elsewhere in the yard if the eye witness accounts of where appellant was when he fired are correct, but there was no evidence to clearly and unequivocally establish where the casings would have fallen. However, the evidence did establish that these casings had been fired in the Gotthardt rifle. Comparison under the comparison microscope of the markings thereon with those of test shells clearly so indicated. We conclude that the evidence as to where the casings were picked up was not the kind of undisputed physical evidence referred to in Lohmann.

Likewise, the absence of evidence of powder fouling on the deceased does not constitute conclusive physical evidence that Gotthardt could not have shot and killed Basemore as the eyewitnesses said he did. This argument necessarily is premised on the assumption that the bullet wounds resulted from shots fired at close range. This is not a valid assumption because the doctor who performed the autopsy found only two gunshot wounds, (one in the left side of his chest and one on top of his head) whereas the evidence disclosed that seven or eight shots were fired from different locations and distances. Which of those shots struck Basemore was not established. Hence, the absence of powder fouling does not demonstrate the impossibility of what the three eye witnesses said occurred.

We conclude that physical evidence did not make unbelievable the eye witness testimony and that the evidence, including their testimony, established a submissible case.

As noted at the outset, we have decided that this case must be reversed and remanded for retrial because of error in Instruction No. 6, the instruction on murder, second degree. We so conclude because the instruction omitted a paragraph which the then current Notes on Use applicable to MAI-CR 6.06, the mandated instruction on murder, second degree, directed should be included.

Instruction No. 6, given by the trial court, was as follows:

“If you do not find the defendant guilty of Murder in the First Degree, then you must consider whether under the evidence in this case he is guilty of Murder in the Second Degree. If you find and believe from the evidence beyond a reasonable doubt:
“First, that on July 29, 1973, in the County of St. Louis, State of Missouri, the defendant caused the death of Bruce Freeman Basemore by shooting him, and
“Second, that the defendant intended to take the life of Bruce Freeman Basemore,
then you will find the defendant guilty of Murder in the Second Degree.
“However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, then you must find the defendant not guilty of that offense.
“If you do find the defendant guilty of Murder in the Second Degree you will fix his punishment at imprisonment by the Department of Corrections for a term fixed by you, but not less than ten years nor more than life imprisonment.”

The foregoing instruction conformed to MAI-CR 6.06 except that it did not contain paragraph Third thereof. That paragraph read as follows:

“Third, that the defendant did not do so in (anger) (fear) (agitation) suddenly provoked by the unexpected acts or conduct of [name of victim].”

At the time this case was tried (April 16, 17,18 and 19,1974), Note 2 of Notes on Use following MAI-CR 6.06 provided as follows:

“Paragraph Third must be included where both murder in the second degree and manslaughter are submitted. If manslaughter is not submitted, paragraph Third should be omitted.”

In this case, the court instructed on manslaughter. Hence, under Note on Use 2, the inclusion of paragraph Third in the murder, second degree, instruction was mandatory.

The State argues that appellant cannot complain of this omission on the theory that Instruction No. 6 was offered by appellant and he cannot complain if it was erroneous. There is disagreement between the State and appellant as to whether defendant prepared and submitted Instruction No. 6 and who typed it, but we deem that question immaterial. The well established rule, prior to adoption of MAI-CR, was that the trial court is obligated to instruct on the law of the case, whether requested or not. State v. Harris, 313 S.W.2d 664 (Mo.1958); State v. Jackson, Mo., 267 S.W. 855 (1924); § 546.070(4), RSMo 1969. That duty included the obligation to instruct correctly thereon. State v. Webster, 230 S.W.2d 841, 842 (Mo.1950); State v. Harris, 232 Mo. 317, 134 S.W. 535, 536 (1911); State v. Young, 99 Mo. 666, 12 S.W. 879, 881 (banc 1890). The adoption of MAI-CR did not change that obligation. MAI-CR was adopted in the hope that it would simplify instructions and make them more understandable for lay juries and that it would assist court and counsel in the preparation for and trial of felony cases. However, it was not intended to and did not alter the existing obligation of the trial court to see that the jury is instructed correctly on the law of the case. Hence, the fact that appellant requested and prepared Instruction No. 6 (and Instruction No. 7 submitting manslaughter), if he did, is of no consequence.

MAI-CR instructions were promulgated pursuant to Rule 20, V.A.M.R. Rule 20.02(e) thereof provides as follows:

“Violation of Rule — Effect. Giving or failing to give an instruction or verdict form in violation of this Rule or any applicable Notes on Use shall constitute error, its prejudicial effect to be judicially determined.”

The State argues that even if it was error under Rule 20.02(e) to give Instruction No. 6 without including paragraph Third, it was not prejudicial error because as a matter of law, the evidence did not require the court to give a manslaughter instruction. This is true, says the State, because if there was no evidence adduced at trial to show the mitigating elements of manslaughter (anger, fear or agitation produced by unexpected acts or conduct of the victim), there was no need to include those factors in the form of paragraph Third in the murder, second degree, instruction and their omission could not be prejudicial. We cannot accept this argument. Even if under the evidence the court would not have been obligated to instruct on manslaughter, a premise we do not necessarily accept, the fact is that the court decided to and did instruct on manslaughter. It had the right to do that and the giving of such instruction was not error. Having so elected, the court was obligated to give the instruction on murder, second degree, which included paragraph Third. MAI-CR 6.06 is drafted on the theory that when the jury is instructed on manslaughter, it is necessary to include paragraph Third so that the jury understands the difference between murder, second degree, and manslaughter. If that premise is valid, it follows that it was prejudicial to omit paragraph Third when instructions on both murder, second degree, and manslaughter were given. We find nothing in the record to suggest any reason for a contrary conclusion.

Having concluded to reverse and remand for error in Instruction No. 6, we consider other asserted errors only where it appears reasonably certain that they will recur on retrial and should be resolved for that reason.

Appellant asserts that by permitting the State to introduce evidence of his purported participation in the theft of brass fittings from the railroad yard, the court violated the general rule that proof of the commission of crimes other than the one charged is not admissible unless such proof tends to establish the charge for which defendant is on trial. He cites several cases, of which State v. Griffin, 336 S.W.2d 364 (Mo.1960) is representative, which announce such a rule. However, as that case recognizes, the rule is subject to various exceptions. One such exception, recognized in several Missouri cases, was discussed at some length in State v. Sarkis, 313 S.W.2d 723, at p. 726 (Mo.1958):

“Mr. De Francesco testified that the gun he took from defendant in the tavern and handed to Mrs. De Francesco was loaded. She testified she gave the gun to an officer when the police arrived. Officer Murray Beech testified that the gun Mrs. De Francesco handed him was loaded. Defendant complains of the admission of this gun in evidence and Officer Beech’s testimony that it was loaded when handed to him because the evidence amounted to proof of another crime. Defendant’s unjustified accusations against Schulte; Folkerts' intervening on behalf of Schulte and stating to defendant that defendant was trying to start trouble; Folkerts’ knocking defendant to the floor when defendant made a fast move toward his rear pocket; Mr. De Francesco’s taking the gun from defendant’s pocket, ascertaining that it was loaded and handing it to his wife, and defendant’s leaving the tavern upon getting to his feet are so interwoven with defendant’s stopping an automobile in front of and shooting with a different gun into the tavern, five minutes later, as to constitute a part of the history of the offense charged. This testimony showed defendant’s actions and behavior immediately before the shooting; that defendant was then armed, and that he was in a hostile mood. The occurrences in the tavern were closely related to the shooting in time and logical sequence, led up to the shooting, were explanatory of it, tended to show defendant’s mental attitude, intent and motive for the offense on trial, and gave character to the whole transaction. The difficulty had its origin in the tavern and its sequel five minutes later in defendant’s shooting into the tavern. The contention that the evidence was inadmissible on the ground it tended to show the commission of another crime by defendant is overruled. State v. Lewis, 181 Mo. 235, 259, 79 S.W. 671, 677, approved in State v. Rudolph, 187 Mo. 67, 84 et seq., 85 S.W. 584, 588; State v. Fisher, Mo., 302 S.W.2d 902, 905[2, 3]; State v. Saale, 308 Mo. 573, 274 S.W. 393, 396[3, 4]; State v. Spaugh, 199 Mo. 147, 97 S.W. 901[3]; State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 922[1-4].”

Likewise, in State v. Garrison, 342 Mo. 453, 116 S.W.2d 23 (1958), the court, after discussing the general rule and the fact that there are exceptions thereto, stated at p. 25:

“But the fourth exception to the general rule, enumerated in the Buxton Case, is as well settled as the rule itself. It permits proof of another crime where two distinct offenses are so inseparably connected that proof of one necessarily involves proving the other, 16 C.J. § 1134, p. 588; State v. Smith, supra, 250 Mo. 350, loc. cit. 368, 157 S.W. 319, loc. cit.

What the court said in the foregoing quotations with reference to the evidence showing commission of another offense being intertwined with and inseparable from evidence relating to the offense charged is pertinent here. The evidence that appellant and Lewis brought brass fittings from the railroad yard which they wanted to load into the Basemore car, that Basemore at first would not permit such loading until appellant persuaded him otherwise by agreeing to share the proceeds with him, that said brass was then hauled to the Doel-ler residence where efforts were made to locate a sale thereof, that arguments arose between appellant and Basemore, that Basemore demanded $50 as his share, that appellant replied that he would not get that amount, that the men then went outside the Doeller house where their argument continued and that Basemore threatened that if he did not get the $50, he would take it out of appellant’s hide, were all so intertwined with the evidence of other events preceding and leading up to the shooting of Basemore that it would have been difficult, if not impossible, for the State to convey to the jury a coherent and meaningful account of the shooting if all evidence which might have shown a theft by appellant of brass fittings and an attempt on his part to sell the- same was excluded. Under such special circumstances, the evidence was admissible under the rule stated in Sarkis and Garrison. See also State v. Cooksey, 499 S.W.2d 485, 488 (Mo.1973); State v. Aubuchon, 394 S.W.2d 327, 331 (Mo.1965); State v. Fuller, 302 S.W.2d 906, 910 (Mo.1957). Accordingly, we hold that the court did not err in admitting evidence of defendant’s purported participation in the theft of the brass fittings.

Appellant next asserts that the trial court erred in refusing Instruction 1A, a circumstantial evidence instruction which conformed to MAI-CR 3.42. We find no merit in this contention. This was not a case wherein the evidence was wholly circumstantial. There were three eye witnesses. Under such circumstances, the court could have, but was not required to, give MAI-CR 3.42. This is made clear by Note on Use 2 which states:

“This instruction may be given even if there is some direct evidence of guilt, though it need not be given at all unless the evidence is wholly circumstantial.”

See also State v. Lewis, 482 S.W.2d 432 (Mo.1972); State v. Stevens, 467 S.W.2d 10 (Mo.1971).

The next point raised by appellant is that the court erred in failing to instruct the jury on justifiable homicide in accordance with MAI-CR 2.40. We find no evidence that appellant shot in self-defense. Appellant points to evidence of arguments which occurred, the threat by Basemore that if he did not receive $50 from the proceeds he would take it out of appellant’s hide, and the evidence that Basemore hurriedly left and then returned, still mad and making threats. He argues that it was reasonable for appellant to believe therefrom that Basemore had gone to get a gun. However, the evidence disclosed that after Basemore returned he got into his car and started the engine preparatory to driving away. Then appellant came up and began shooting. There was no evidence that Basemore at that time made any move to attack appellant or to indicate that he might be armed or that he was likely at that time to attack appellant. Hence, it was not error to fail to instruct on justifiable homicide. Whether such an instruction will be required on retrial is dependent on whether additional evidence calling therefor is introduced when the case is retried.

Finally, appellant claims that Instruction No. 3 (MAI-CR 2.03) was erroneous in that it in effect cancelled out or excluded consideration of Instruction No. 8, an alibi instruction, as well as portions of Instructions 5, 6 and 7 (murder, first degree; murder, second degree; and manslaughter) wherein the instructions stated: “However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty”. Appellant concedes that he has found no cases to support this proposition but argues that the language in Instruction No. 3 creates a danger that based thereon the jury will disregard some of the instructions given by the court.

We find no merit in this contention. The language objected to has the effect of telling the jury to consider all the instructions, not just part of them. That is in accordance with the rule that all instructions must be read together and constitute a single charge. State v. Crow, 486 S.W.2d 248 (Mo.1972); State v. Prigett, 470 S.W.2d 459 (Mo.1971).

Reversed and remanded.

All concur.

      . The instruction also did not contain paragraph Fourth of MAI-CR 6.06 which is to be included only if the defenses of justifiable or excusable homicide or both are justified by the evidence and are submitted in separate instructions. As subsequently noted in the opinion, we conclude that a tendered instruction on justifiable homicide was properly refused. Hence, paragraph Fourth was not required.


author: DONNELLY, Judge.

text:
    Lennie S. WATKINS, Sr., Respondent, v. John L. WATTLE, Appellant.
    No. 59143.
    Supreme Court of Missouri, En Banc.
    Sept. 13, 1976.

      Byron D. Luber, Ward & Reeves, Caruth-ersville, for respondent.
    Wendell W. Crow, Ford, Ford, Crow & Reynolds, Kennett, for appellant.
   DONNELLY, Judge.

This is a proceeding in unlawful detainer involving 17.68 acres of land in Pemiscot County, Missouri.

On April 10,1963, John H. Wilks and Earl Wilks, his wife, leased the land to E. E. Wattle and John L. Wattle for a term beginning January 1, 1964, and ending December 31, 1974.

On January 30, 1969, Mrs. Earl Wilks, surviving spouse of John H. Wilks, deceased, executed a lease of the land, and other land, to John L. Wattle for a term beginning January 1, 1975, and continuing for and during the natural life of John L. Wattle.

On August 13, 1971, E. E. Wattle and John L. Wattle executed a quitclaim deed in favor of Earl Wilks for the purpose of releasing all their interest in the leases of April 10, 1963, and January 30, 1969.

On August 16, 1971, Earl Wilks, by general warranty deed, conveyed the land to Lennie S. Watkins, Sr.

On April 18, 1972, Lennie S. Watkins, Sr. demanded of E. E. Wattle and John L. Wattle that they surrender possession of the land. The Wattles refused and suit was filed in the Magistrate Court of Pemiscot County, Missouri. The cause was finally transferred to the Circuit Court of Dunklin County, Missouri for trial.

On August 2,1972, a trial on the question of possession was had before Judge William H. Billings. Watkins proved his right to possession under the deed of August 16, 1971, that he demanded possession and that the Wattles refused to deliver possession.

On cross-examination of Watkins, the Wattles made an offer of proof as follows:

“At this time we would like to prove that the plaintiff would testify, if permitted, upon examination as to the oral conversation between himself and Mr. John Wattle and Mrs. Aletha Wattle, his mother, at the Wattle’s Store in August of 1971 on the occasion of bringing the quitclaim deed to that store, that if they would sign the release of the written lease that they had, that he stated, ‘Well, you can still farm the land as long as I own it.’ And they discussed the terms and it would be under the same relationship that he had with Mrs. Wilks prior to that time; that following that occasion, in the month of August, at the home of Mrs. Wilks, some two or three days thereafter, when Mr. John Wattle took the quitclaim deed to that home, Mr. Watkins had arrived just immediately prior to that, and their conversation was that he appreciated their giving the deed, Mr. Watkins appreciated the Wattles giving the deed, and it was discussed at that time that they could go ahead farming the land just like they had been farming it, for such period of time as he might own that property.”

Counsel for Watkins objected to the offer on the basis of § 441.120, RSMo 1969, the substance of which “is that where a tenant holds over after the termination of his written lease and is sued for possession by the party entitled thereto, oral evidence of any renewal, extension, substituted or new lease to the tenant shall be inadmissible, and the tenant’s right to continued possession must be evidenced by a written contract.” Gideon-Anderson Lbr. Co. v. Hayes, 348 Mo. 1085, 1088, 156 S.W.2d 898, 899 (1941), The objection was sustained. The constitutionality of § 441.120 was not questioned at this time.

On direct examination of John Wattle, the Wattles made an offer of proof as follows:

“Your Honor, at this time we’d like to offer to prove that this witness, if permitted, would testify that when Mr. Watkins brought Mrs. Wilks to the store there at Kinfolks Ridge to get the quitclaim deed executed that as a part of their discussion and as a consideration for his signing the quitclaim deed releasing the written leases, he discussed with the purchaser of the property, the plaintiff in this action, what arrangements were to be made with regard to his continuing farming the land, at which time Mr. Watkins stated, ‘Well, you can still farm the land as long as I own the land.’ And they discussed the terms, and it was to be under the same one-third and one-fourth rental that he had previously farmed the land with Mrs. Wilks.”

Counsel for Watkins again objected to the offer on the basis of § 441.120, and the objection was sustained. The constitutionality of § 441.120 was not questioned at this time.

On August 2, 1972, Judge Billings found for Watkins on the issue of possession.

On August 10, 1972, the Wattles filed a notice of appeal to the Springfield District of the Court of Appeals.

On September 25, 1972, Judge Billings tried the issue of damages and directed the parties to submit proposed findings of fact and conclusions of law with respect to the issue of damages.

On October 3,1972, Watkins filed an affidavit for citation for contempt against John Wattle because he had harvested the cotton crop on the land.

On December 11, 1972, a hearing was held before Judge Billings who directed the parties to prepare a memorandum on the issue of contempt and took all issues remaining in the case under advisement.

On March 12,1973, a stipulation was filed whereby the parties agreed that Judge Flake L. McHaney could rule upon all remaining issues in the case.

On April 27, 1973, the appeal was dismissed by the Springfield District of the Court of Appeals.

On August 19,1974, Judge McHaney was disqualified on request of Watkins and Judge Marshall Craig was designated to act as Special Judge.

Judge Craig entered final judgment on May 19, 1975.

On Máy 27, 1975, the Wattles filed their motion for new trial, in which, for the first time, they challenged the constitutionality of § 441.120, by asserting:

“The Court erred in excluding oral testimony offered by the Defendants regarding the oral lease and authorization of Plaintiff that Defendant John L. Wattle farm the property involved for the following year or until such time as Plaintiff might sell same; the Court erred in excluding oral testimony on the basis of See. 441.120 R.S.Mo.1909, in that said statute is not applicable to the factual situation involved in this case, and, in any event, said statute is discriminatory and violative of the equal protection and due process clauses of the U. S. and Missouri Constitutions.”

On June 30, 1975, the motion for new trial was overruled. John L. Wattle appealed to this Court. He asserts this Court has jurisdiction because the appeal “involves the construction of the due process and equal protection clauses of the Missouri and U. S. Constitutions relative to [§ 441.120] and relative to the construing of whether same establishes an unreasonable and discriminatory class in violation of said equal protection clauses and deprives persons in the position of appellants of hearing and due process of law.”

On April 14, 1976, Watkins, filed in this Court his motion to dismiss the appeal or transfer the cause to the Springfield District of the Court of Appeals, for the reason, among others, that the “constitutional issue was not timely raised at the first opportunity and kept alive.”

On April 20, 1976, Watkins’ motion was ordered taken with the case. On May 13, 1976, the cause was argued to the Court.

In Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, 689, 690, 113 S.W. 1108, 1110 (1908), this Court said:

“But it must be taken as settled law that in so grave a matter as a constitutional question it should be lodged in the case at the earliest moment that good pleading and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived.”

The following language from Hartzler v. Metropolitan St. Ry. Co., 218 Mo. 562, 564, 565, 117 S.W. 1124, 1125 (1909) is appropriate here:

“In Lohmeyer * * *, the constitutional question was raised for the first time in the motion for a new trial, and it was held on review of many cases, that under the circumstances there present it could have been raised sooner, and therefore was not raised at all, so as to give this court jurisdiction. That case is on all-fours with this, and must control, if it be followed.”

The challenge to the constitutionality of § 441.120 could and should have been made at trial when the objections were sustained to the offers of proof. Cf. Suess v. Imperial Life Ins. Co., 193 Mo. 564, 91 S.W. 1041 (1906); State ex rel. Simmons v. American Surety Co. of New York, 210 S.W. 428 (Mo.1919).

This Court has no jurisdiction of this appeal “[bjecause the constitutional point was not timely invoked in accordance with the usual course of orderly procedure * *.” Hartzler, supra (117 S.W., l.c. 1125).

The cause is transferred to the Springfield District of the Court of Appeals for decision on the non-constitutional question raised on appeal.

SEILER, C. J., and MORGAN, HOLMAN, BARDGETT and FINCH, JJ., and WELBORN, Special Judge, concur.

HENLEY, J., not sitting.