author: TURNAGE, Judge.

text:
    The STATE of Missouri at the relation of Richard K. DUNLAP, Plaintiff-Relator, v. The Honorable Forest W. HANNA, Defendant-Respondent.
    No. KCD 29683.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1977.
    Motion for Rehearing and/or Transfer Denied Jan. 30, 1978.
    Application to Transfer Denied March 13,1978.

      James S. Formby and Kenneth L. Gottsc-hall, Kansas City, for plaintiff-relator.
    Ralph L. Martin, Pros. Atty. by Robert Frager and John Turner, Asst. Pros. Attys., Kansas City, for defendant-respondent.
    Before SWOFFORD, C. J., and SHAN-GLER, DIXON, PRITCHARD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   TURNAGE, Judge.

Richard Dunlap filed a petition seeking the order of this court to prohibit Judge Forest Hanna from overruling Dunlap’s motion for discovery. Dunlap was charged by indictment with murder in the second degree and two counts of assault with intent to do great bodily harm with malice. Thereafter, Dunlap requested, pursuant to Rule 25.32(A)(3), the prosecuting attorney to produce those portions of any existing transcript of the grand jury proceeding relating to the offenses with which Dunlap was charged and containing testimony of those persons the State intended to call as witnesses at the trial.

The prosecuting attorney admitted there were stenographic notes of the evidence presented to the grand jury relating to the offenses with which Dunlap was charged but stated such notes had not been transcribed and hence there was no existing transcript. Thereafter, Dunlap filed a motion pursuant to Rule 25.45 in which the court was requested to compel the prosecuting attorney to produce an existing transcript of that part of the evidence heard by the grand jury to which Dunlap was entitled, or in the alternative, to produce the stenographer’s notes. Under the alternative request, Dunlap offered to pay the cost of having such notes transcribed.

The court indicated its intention to overrule Dunlap’s motion to enforce discovery unless prohibited by this court. This court issued its preliminary writ in prohibition ordering the court to refrain from overruling such motion until the further order of this court. Preliminary rule made permanent.

Dunlap contends the discovery permitted by Rule 25.32 will be effectively thwarted if he is not given either a transcript or the stenographic notes of the testimony of the witnesses who testified before the grand jury whom the State intends to call at his trial. The prosecuting attorney contends Rule 25.32(A)(3) only mentions “existing transcript.” He insists a transcript is separate and distinct from the stenographic notes and since the only record of evidence presented to the grand jury is contained in stenographic notes there is no existing transcript, thus there is nothing under the Rule which he is required to disclose.

Rule 25.32(A) requires the state to disclose upon written request

(3) Those portions of any existing transcript of grand jury proceedings which relate to the offense with which defendant is charged, containing testimony of the defendant and testimony of persons whom the state intends to call as witnesses at a hearing or trial.

There is no requirement that evidence presented to a grand jury be taken down by a court reporter or stenographer. While it has been stated to be desirable for all grand jury testimony to be recorded, United States v. John, 508 F.2d 1134, 1142[14, 15] (8th Cir. 1975), such duty must be imposed by the legislature. However, there is permissive authority. Section 540.105, RSMo 1969 provides:

The official reporter of the circuit court, when directed by the judge thereof, shall take down and transcribe for the use of the prosecuting attorney any or all evidence given before the grand jury. Section 56.190 provides:
In all counties of class one, the stenographers in the office of the prosecuting attorney shall, when so directed by the prosecuting attorney of such county, take down and transcribe for the use of the prosecuting attorney testimony and evidence before the grand jury of said county . .

Section 56.540, likewise, permits the reporters or stenographers employed by the circuit attorney of the City of St. Louis to “take down and transcribe” for the circuit attorney’s use, evidence before a grand jury.

In this case the parties have not specified whether the court ordered the court reporter to take the testimony presented to the grand jury or whether the stenographic notes in existence are those made by a stenographer employed by the prosecuting attorney. Because Jackson County is a county of the first class, Official Manual, State of Missouri, 1977-78, p. 1182, the testimony could have been taken under § 540.-105 or § 56.190.

In either event, the statute provides the reporter shall “take down and transcribe” the evidence. The use of the word and between “take down” and “transcribe” indicates the reporter or the stenographer shall perform both tasks and not only one. The word and has been construed to mean “that something else is to follow.” State v. Browning, 217 S.W.2d 719, 721[4] (Mo.App.1949). It has further been held the word and is a conjunction. Nichols v. Steffan, 299 S.W.2d 417, 420[1, 2] (Mo.1957).

In 3A C.J.S. p. 450, the word and is stated to “connects words or phrases expressing the idea that the latter is to be added or taken along with the first, and signifies that something is to follow in addition to that which precedes, . . . .” Webster’s Third New International Dictionary (1971) defines and as “along with or together with, added to or linked to, as well as.” See Bohlen v. Allen, 228 S.C. 135, 89 S.E.2d 99, 103 (1955).

It is clear the legislature has not authorized either a court reporter or stenographer employed by the prosecuting or circuit attorney to simply take down evidence presented to the grand jury. The legislature has conjoined the taking down with transcribing so that the reporter or stenographer is required to both take down and transcribe evidence presented to the grand jury when requested to attend the grand jury by either the court or the prosecuting official.

When the reporter or stenographer took down the evidence presented, the statute required such notes to be transcribed. The transcription of the notes does not require further instruction from either the court or the prosecuting official. The transcription follows as a matter of course the order to take down the evidence.

The statutes provide the transcript is for the use of the prosecuting official. Rule 25.32(A)(3) expands this purpose by making the transcript available for use by a defendant’s counsel.

It is apparent the drafters of Rule 25.32 were aware that the duty to take down evidence before a grand jury carried the concomitant duty to transcribe the notes made. Thus, there was no need that the rule address the question of the production of reporter or stenographic notes since those notes by statute were required to be transcribed after they were taken. Thus the rule read in the light of the statutes mentioned fulfills the intent to make disclosure meaningful.

In this case, it is the duty of the reporter or stenographer to immediately transcribe the notes taken of the evidence presented to the grand jury. As soon as such notes have been transcribed and placed in transcript form, Dunlap is entitled by the provisions of Rule 25.32(A)(3) to receive those portions described in the rule.

It follows the respondent judge is without authority to overrule Dunlap’s motion. For that reason the preliminary rule is made permanent.

All concur.

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


source: Caselaw Access Project

author: McMILLIAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Nicholas Richard TETTAMBLE, Defendant-Appellant.
    No. 38438.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 27, 1977.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.
    Application to Transfer Denied March 13,1978.
    Melvin G. Franke, Public Defender, Gary L. Gardner, Asst. Public Defender, Union, for defendant-appellant.

      John D. Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant Nicholas Richard Tettamble appeals from judgments entered on jury verdicts in the Circuit Court of Franklin County finding him guilty of possession of burglary tools (Count I), § 560.115 RSMo 1969; burglary in the second degree and stealing (Count II), § 560.110 RSMo 1969; and burglary in the second degree (Count III), § 560.045 RSMo 1969. Defendant was sentenced to sixteen (16) years imprisonment. For reversal, defendant argues that the trial court erred in (1) denying his motion for a second psychiatric examination at state expense, (2) overruling his motions to consolidate Counts II and III, and (3) submitting an erroneous instruction to the jury. For the reasons discussed below, we affirm.

Defendant does not challenge the sufficiency of the evidence. From the evidence presented the jury could have reasonably found that on April 23, 1975, defendant broke into the St. Clair Medical Center in St. Clair, Missouri. In the building were located not only the offices of Dr. George A. Peters but also a Pharmacare Pharmacy operated by Joseph Toole. A sliding glass door or window separated the doctor’s offices and the pharmacy. On the night of the burglary the outer window of the doctor’s offices was broken to gain entry into the building; the sliding glass door or window was broken to get into the pharmacy. Although nothing had been taken from the doctor’s offices, drugs had been taken from the pharmacy. Police officers found defendant hiding above the suspended ceiling in the pharmacy and arrested him.

Defendant first argues that the trial court erred in denying his motion for a second psychiatric examination at the expense of the state. Defendant contends that §§ 552.020(4), .030(4), RSMo 1969 (Amended 1971), which permits a second psychiatric examination by a physician chosen and paid by the party making the request, discriminates against him on account of his indigency and therefore violates the equal protection clause. This point, however, has been previously raised and rejected by our supreme court. State v. Terry, 472 S.W.2d 426 (Mo.banc 1971); see also State v. Sturdivan, 497 S.W.2d 139 (Mo.1973); Op.Atty.Gen., No. 2 (Mar. 29, 1973). Furthermore, our court stated in State v. Mullen, 532 S.W.2d 794, 799 (Mo.App.1975) (Stewart, J.), that this question had been definitely settled in Sturdivan and required no further discussion. We agree and therefore hold that failure to grant an indigent defendant a second psychiatric examination at state expense does not violate the equal protection clause.

Defendant also argues that the trial court erred in overruling his motions to consolidate Counts II and III into a single count of burglary in the second degree and stealing. Count II charging defendant defendant with burglary in the second degree and stealing was based on the burglary of the pharmacy and the taking of the drugs. Count III charging defendant with burglary in the second degree only was based on the breaking and entering of the doctor’s offices. Defendant contends that the trial court’s refusal to consolidate the two counts placed him in double jeopardy because his actions constituted one offense, not two.

We do not agree with defendant’s analysis. In State v. Chambers, 524 S.W.2d 826, 830 (Mo.banc 1975), our supreme court adopted the separate offense rule, not the same transaction rule. In order to determine whether a person has been placed in double jeopardy, the court must determine whether each offense necessitates proof of an essential fact or element not required by the other or, in other words, whether the offenses charged are one and the same. Id. at 828-29, citing United States v. Phillips, 432 F.2d 973 (8th Cir. 1970); United States v. Cardarella, 375 F.2d 222 (8th Cir.), cert. den., 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176 (1967).

Applying the Chambers test, there were two separate burglaries in fact and in law. The evidence showed that defendant first broke the outer window of the doctor’s offices to gain entry into the building. Thereafter, defendant broke the sliding glass door or window to gain entry to the pharmacy from the doctor’s offices. The breaking of an inner door has been held sufficient to constitute a burglary in the second degree of a building other than a dwelling house, even though an outer door had not been broken. § 560.070, RSMo 1969; e. g., State v. Bingham, 470 S.W.2d 540 (Mo.1971); State v. Burke, 462 S.W.2d 701 (Mo.1971).

The fact that Dr. Peters owned the entire building and occupied only half is irrelevant. The term “ownership” in a burglary case has been construed to mean occupancy rather than title. Therefore, if occupancy is the true focus of the offense, then there can be no question that defendant in this case was properly charged with two burglaries. See State v. Yearwood, 510 S.W.2d 43 (Mo.App.1974).

Finally we take up defendant’s argument that the trial court erred in giving an erroneous instruction to the jury. Defendant contends that the trial court’s failure to add to the second paragraph of MAI-CR 2.76 the phrase, “. . . or you may find him not guilty by reason of a mental disease or defect excluding responsibility” deprived him of a theory of his defense. We agree that the trial court erred in not including the above quoted phrase in the instruction. Noncomplianee with the verdict forms as established in MAI-CR is error; however, the prejudicial effect of such error is to be judicially determined. Rule 20.02(e); V.A.M.R.1975; e. g., State v. Vernor, 522 S.W.2d 312 (Mo.App.1975).

We note that instruction number five (5), pertaining to Count II, burglary in the second degree and stealing, and the separate verdict directors for Counts I, II and III informed the jury that they could find defendant not guilty by reason of mental disease or defect excluding responsibility. In addition, instruction number thirteen (13) properly presented the defense of mental disease or defect excluding responsibility to the jury. Thus, we believe that the jury was adequately informed that the defense of mental disease or defect was applicable to all three counts and that in order to convict they must not only consider that defense but also must reject it. State v. Sallee, 436 S.W.2d 246, 252 (Mo.1969); State v. Boyington, 544 S.W.2d 300, 305 (Mo.App.1976). In Boyington the court held there was no prejudicial error despite a total failure to give an instruction on verdict possibilities. In this case, as in Sallee, after reading and considering all the instructions together, we conclude the jury was adequately instructed and there was no prejudice to defendant.

Judgment affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: KELLY, Judge.

text:
    William R. SCHAEFER et al., Plaintiffs-Respondents, v. William R. NEUMANN et al., Defendants-Appellants.
    No. 37592.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 29, 1977.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.
    Application to Transfer Denied March 13,1978.

      Niedner, Moerschel, Nack & Ahlheim, Robert V. Niedner, St. Charles, for defendants-appellants.
    Robert D. Tucker, Albert E. Schoenbeck, St. Louis, for plaintiffs-respondents.
   KELLY, Judge.

This is an appeal from a judgment of the Circuit Court of St. Charles County permanently enjoining the defendants-appellants from continuing to employ their properties, situated in an unincorporated portion of St. Charles County, approximately one mile west of O’Fallon and adjacent to Interstate 70, for certain business purposes. We affirm.

The property in question is bounded on the south by the North Service Road of Interstate 70 and on the north by the tracks of the Norfolk and Western Railway Company. Plaintiffs reside on property north of the railroad tracks, and directly north of defendants’ property. McGee Road, a private road constructed on a road easement twenty feet wide, runs northwardly from the North Service Road for Interstate 70, crosses the railroad tracks into the area where the plaintiffs reside and is the only means of access plaintiffs have to their residences.

McGee Road also divides defendants’ property into two parcels. The parcel lying to the east of McGee Road is referred to hereinafter as the East Parcel, and that lying to the west of the private road as the West Parcel.

Defendants William Neumann and Ruth Neumann, husband and wife, are officers of defendant Goodfellow Auto Sales and Salvage Co., a corporation, which operates an auto salvage business on the East Parcel, and engages in the business of buying, selling and repairing mobile homes on the West Parcel.

The Neumanns purchased the West Parcel in 1967. Shortly after purchasing the parcel, they had it rezoned for industrial use, an M-l classification under the County Zoning Order of 1959 which was then in effect. Under this zoning classification the operation of a “public garage” was permitted. After this parcel was rezoned a quon-set hut was erected and it was rented out initially as a body shop and later to a truck hauling outfit which repaired trucks in it. At time of trial it was being used as a welding shop.

The Neumanns also rent an area on the West Parcel to Martin Hoffman who lives in a mobile home thereon. He does repair work on automobile motors and other machines brought onto the premises for that purpose. A couple by the name of Siar also occupies a mobile home on this parcel. Harold Siar testified at trial that he worked for McDonnell-Douglas from 7 a. m. to 3:30 p. m. and as a night-watchman for Goodfel-low Auto Sales and Salvage Co. after 4:30 p. m. and until 10 or 11 p. m.

The Neumanns purchased the East Parcel in 1965. Prior to purchasing this parcel they had, since about 1958, engaged in the business of buying and selling automobiles and automobile parts, and repairing automobiles on a site south of and across the outer roadway of Interstate 70 — “South side of Old Highway 40” — and when this parcel was purchased they were still so engaged. When the Neumanns purchased this parcel there was a seven room house on the premises which was made into three apartments and was being so used at that time. There was also an old shed out in back of the house which was used as a garage. Prior to their acquisition of the land a filling station had been operated there.

Mr. Whitener, another defendant, resided in the house on the East Parcel for a time. Sometime “in early 1965” the Neumanns sought and were granted a rezoning of this parcel to M-2 — heavy industrial. In 1966 there was a fire which damaged the house, Mr. Whitener moved out, and they boarded-up the windows and stored various components of automobiles, such as generators and starters, therein. The County Zoning Order of 1959 specified automobile salvage yards as a permissible use in the heavy industrial district, M-2 classification. Go-odfellow Auto Sales and Salvage Co. at time of trial conducted an auto salvage business on this Parcel and Messrs. Higgins and Neumann conducted a bumper and plate glass business on this Parcel also.

In July, 1967, the County Court amended the County Zoning Order and thereafter a salvage yard was a permissible use in any area zoned heavy industrial, M-2, but only after the location of such use had been approved by the County Court, after report by the County Engineer and the Planning and Zoning Commission. Salvage yards, even under the 1959 Zoning Order, had to be completely enclosed by a solid fence or wall not less than eight feet in height, and no change in this requirement was affected by the 1967 amendment of said Zoning Order.

The Revised Zoning Order, as relevant to the issues here, is set out in an appendix following this opinion.

With respect to the West Parcel, which was zoned “light industrial,” permissible and conditional uses authorized under the 1973 amendments are those permitted in the C-2 District “except dwellings, provided dwellings for, and to be occupied by, watchmen, guards, attendants and other personnel who customarily reside on the premises of an industrial use” permitted in this classification. Other uses relevant to the issues in this case were machine shops, electroplating, photo engraving, plumbing and sheet metal shops as well as accessory uses customarily incident to any of those uses.

Uses approved in the C-2 District — General Commercial District — included automobile service stations and automobile repair garages, provided no dismantled vehicles or parts were displayed or stored outside the building. Operation of a public garage or parking lot was permissible.

With respect to the East Parcel, the permissive uses in the heavy industrial district — M-2—included, among others, “[a]u-tomobile wrecking, cars and parts, storage and sale” as a conditional use. No dwelling, other than that for a resident watchman or caretaker employed on the premises was permitted.

Section 9 of the 1973 Rezoning Code covered “Non-conforming Use of Lands.” Any non-conforming junk yard could be continued for a period not more than 5 years, provided it was enclosed with an 8 foot high sight-proof fence. Uses in existence at the time this Order was adopted which were eligible for conditional use permits were not considered non-conforming uses and could not be used nor construed to establish a non-conforming use on any lot or tract. Casual, intermittent, temporary or illegal use of the land or buildings on all or a part of the land could not be the basis for establishing a non-conforming use, and whether one existed was a question of fact to be decided by the Board of Adjustment after public notice and hearing.

Once established, a non-conforming use could be continued despite any amendment to the Zoning Order or Zoning District Map if no structural alterations were made and it could be changed to another non-conforming use of a higher classification.

A non-conforming use could not be enlarged, extended, reconstructed or altered except to conform to regulations of the district in which it was located.

Plaintiffs are the owners of and reside on four parcels of property which lie generally north of and directly across the Norfolk and Western Railway Company tracks from subject property of the Neumanns. This suit was filed in 4 counts.

Count I of Plaintiffs’ Fourth Amended Petition on which this cause came on for trial, sought to enjoin the Neumanns, John P. Whitener, and the Goodfellow Auto Sales and Salvage Co. from depositing large quantities of junk, debris, used and salvaged automobile parts and equipment, and other such materials, on the East Parcel in violation of Sec. 5 of the Revised Zoning Order of 1973, restricting certain uses in an area zoned M-2 — Heavy Industrial District — because the defendants had not obtained a conditional use permit. This Count further sought a decree enjoining the defendants from blocking McGee Road by obstructing it with junk, debris and other such materials and from damaging said road by creating ruts and holes therein by moving junk, salvaged automobiles and other heavy materials over the road thereby preventing plaintiffs from using the road as a means of ingress and egress from their residences.

Count II sought an injunction on the same activities of the defendants alleged in Count I, however, on the ground such activities constituted a private nuisance.

Count III sought to enjoin the Neu-manns, Whitener and Goodfellow Auto Sales and Salvage Co. from engaging in the business of buying, storing, repairing, removing parts from and selling automobiles on the West Parcel; and it further sought to enjoin Mr. Neumann and Leonard Higgins from conducting their partnership business, Midwest Bumper and Glass Com-, pany, on this same Parcel, on the grounds that these businesses were so run that they constituted a private nuisance. It was alleged, and an injunction to stop such actions was prayed, that the defendants were interfering with plaintiffs’ use of McGee Road by the same means alleged in the prior two Counts.

Count IV also sought an injunction against the same defendants named in Count III of the petition to enjoin them from “repairing damaged, deteriorated, used, and unoccupied mobile homes” on the West Parcel and from the “open storage and repair of automobiles” thereon. The theory of this Count, was that these activities of the defendants on the West Parcel constituted uses which were not permitted in areas zoned M-l, Light Industrial District, by the 1973 Revised Zoning Order.

The defendants’ Answer denied these allegations of plaintiffs’ petition relative to the alleged violations of the Zoning Order and further alleged that Goodfellow Auto Sales and Salvage Co. had, since June 26, 1965, been engaged in the business of buying, storing, repairing, removing parts from and selling automobiles on the East Parcel, and since June 12, 1967, had been engaged in the business of storing and repairing automobiles and mobile homes and removing parts from automobiles on the West Parcel. Laches and estoppel were also pleaded.

The trial court entered “Findings of Fact, Conclusions of Law And Decision” wherein it found that until May, 1973, the primary place of business and officers of the Good-fellow Auto Sales and Salvage Company were located on the south side of the North Service Road of Interstate 70 and until May, 1973, there were as many as 1000 damaged automobiles located there; that in 1966 it occasionally began to store automobile parts, equipment and accessories inside a white house and a shed on the East Parcel with some parts stored outside the white house and shed; that in 1966 it began occasionally to store several new and used automobiles on the East Parcel which were offered for sale to the public; that in 1967, the West Parcel was used for the sale of used automobiles; that in January or February, 1973, the land on which Goodfellow Auto Sales and Salvage Company operated its business south of the North Service Road was sold and by the terms of the sale Goodfellow Auto Sales and Salvage Company was required to dispose of its automobiles on said land by July 1, 1973; that after January 4, 1973, Goodfellow Auto Sales and Salvage Company began to openly store a substantial number of damaged and salvaged automobiles and automobile parts, equipment and accessories on both the East and the West Parcels.

That, in May, 1973, Goodfellow Auto Sales and Salvage Company moved the actual operation of its business of auto sales and salvage from the south side of the North Service Road to the East and West Parcels, at which time the systematic disas-sembly, dismantling, wrecking and salvaging of automobiles began on said parcels; that a short time after, Goodfellow Auto Sales and Salvage Company constructed a large metal building on the East Parcel and was operating its business in this building.

That in the Spring of 1973, Goodfellow Auto Sales and Salvage Company, William R. Neumann and John P. Whitener began to purchase damaged mobile homes and store and repair and refurbish the same for resale on the West Parcel.

That after January, 1973, a commercial welding shop began operating on the West Parcel and to openly store used motor vehicle parts and equipment.

That after January 4, -1973, McGee Road was occasionally blocked by the defendants, their employees, agents or tenants in the movement of automobiles, trucks, mobile homes onto or across said Road from the East Parcel to the West Parcel, and that automobile parts, equipment or accessories have occasionally fallen onto or been placed upon said Road thereby occasionally and temporarily curtailing the plaintiffs’ right to ingress and egress to and from their residences.

That in the latter part of 1973, the defendants installed a metal part in the drive-able portion of McGee Road near its intersection the North Service Road thereby depriving plaintiffs of the full use and enjoyment of McGee Road.

That in the latter part of 1973, defendants erected a chain link fence on the east, west, and south sides of their East Parcel; that it is not a “sight proof” fence; that the northern side of this Parcel is open and without fence.

That for several years prior to January, 1973, Martin Hoffman lived in a mobile home on the West Parcel as defendants’ tenant and that he is not an employee of defendants; and

That defendants have not obtained a conditional use permit to conduct an auto salvage operation on the East Parcel.

The trial court’s Conclusions of Law were that the plaintiffs had standing to seek an injunction; that the use of the East Parcel for the automobile and salvage operation, including the storage, dismantling, and sale of wrecked and dismantled automobiles and automobile parts, equipment and accessories constituted a violation of the M-2 District permissive uses of the 1973 Zoning Order, but that the use of the same Parcel for the operation of the bumper and windshield business was not in violation of the Zoning Order.

That the use of the West Parcel by the defendants for the storage of automobile parts, equipment and accessories outside of a building pursuant to the business conducted by Goodfellow Auto Sales and Salvage Company was a violation of Section 5, M-l of the 1973 Zoning Order.

That the sporadic and occasional use of the East and West Parcels for storage of limited numbers of new and used automobiles and for the limited storage of automobile parts, equipment, and accessories within the buildings on said parcels prior to January 4,1973, did not establish a non-conforming use on either Parcel by which the defendants could continue their present use of said Parcels, consisting of the salvaging and storing of approximately 450 damaged and wrecked automobiles, and automobile parts, equipment and accessories.

That the rezoning of the East Parcel in 1965 to M-2 District and of the West Parcel in 1967 to M — 1 District did not establish a non-conforming use under the 1973 Zoning Order because the mere intended use of property even connected with a sporadic or occasional use does not establish such use as a non-conforming use.

That the obstructing of McGee Road by a metal post in the driveable portion thereof denies the plaintiffs of their lawful right of use of said road, but that the occasional and temporary blocking of said road by vehicles and depositing of parts in said road was not so substantial as to require equitable relief.

That the use of the West Parcel as a residence for a person or his family who was not a watchman or caretaker employed on the premises of the defendants constituted a violation of Section 5, M — 1 District of the 1973 Zoning Order.

The trial court decreed that the defendants, their officers, etc. were permanently enjoined from:

1) operating an automobile salvaging business, an automobile sales business’, or an automobile parts sales business which includes the open storage of wrecked or damaged automobiles, automobile parts, equipment and accessories on the East Parcel;

2) storing dismantled vehicles or parts outside of any building on the West Parcel and from leasing or renting all or part of said tract of land as a residence, home or sleeping quarters to any person or his family who is not employed by the defendants to act as a watchman, guard or attendant on said tract of land, and

3) obstructing the driveable portion of McGee Road or the flow thereof where it joins the North Service Road by a metal post.

On appeal the defendants contend that the trial court erred:

1) in enjoining their use of the East Parcel for automotive sales and storage and salvage of parts as being in violation of the County Zoning Order of 1973 because they had established a non-conforming use and were not, therefore, required to obtain a conditional use permit;
2) in enjoining their use of the West Parcel for storing vehicles or parts outside buildings because such activities are accessory to such lawful uses of the West Parcel as public garages and storage of machinery; and
3) their use of these Parcels did not constitute a private nuisance.

In this court tried case the standards of review are those set forth in Murphy v. Carron, 536 S.W.2d 30, 32[1, 2] (Mo. banc 1976), and the reviewing court reviews both the law and the evidence, giving due regard to the opportunity of the trial judge to evaluate the credibility of the witnesses. Rule 73.01(3); McNeal v. Manchester Ins. & Indem. Co., 540 S.W.2d 113, 118[1] (Mo.App.1976).

The judgment of the trial court, together with its findings of fact and conclusions of law, show that it is based on violations of Section 5 of the 1973 Revised Zoning Code of St. Charles County, and that no non-conforming use was established by the evidence. •

The crux around which this case revolves is when the defendants commenced using these two Parcels for the purposes the trial court enjoined. The evidence on this issue includes both oral testimony and photographs; the latter portraying the property as it was in 1965, in 1971 (these being aerial photos), and at more recent times. The oral testimony adduced by the parties on this issue was in conflict.

I. The East Parcel

Whether defendants’ use of the East Parcel was a non-conforming use, i. e. “the lawful use of land or a building or a portion thereof, which use does not conform with the use regulations of the district in which it is located and which use existed at the time of the adoption of this Order,” Section 2 Revised Zoning Order for St. Charles County, Missouri, 1973, is a question of fact, and the burden of proving the right to maintain a non-conforming use is on the party seeking to continue said use. It is that party who must prove the essential elements of the right to maintain the use, including prior existence of the use, and denial of such use will be sustained where the evidence in support of such prior use is insufficient or contradictory. Anderson, American Law of Zoning, § 6.09, p. 327 (1968); Bartholomew v. Board of Zoning Adjustment, 307 S.W.2d 730, 733[7] (Mo.App.1957). See also Kansas City v. Wilhoit, 241 Mo.App. 280, 237 S.W.2d 919, 922[3] (1951).

The evidence of prior uses was inconsistent and contradictory, but there was substantial evidence supporting the trial court’s findings that Goodfellow Auto Sales and Salvage Company began in 1966 to occasionally store auto parts and accessories on the East Parcel but that no substantial number of parts and accessories were stored there until sometime after January 4, 1973, and that the systematic disassembly, dismantling, wrecking and salvaging operations on this Parcel were not conducted until May, 1973. Plaintiffs’ witnesses testified that they were unaware of use of this tract as a junkyard prior to 1973.

There was sufficient evidence from which the trial court could decide that the East Parcel was not the site of a systematic automobile salvage business prior to 1973. The parking of a few junked cars, incidental to the use of a tract of land for a gas station, has been held insufficient to establish a non-conforming use of a salvage yard. Sohns v. Jensen, 11 Wis.2d 449, 105 N.W.2d 818, 822[6] (1960). Here, there is evidence that prior to 1973 there was a small house on this Parcel which was used for the sale and storage of auto parts and accessories, but only a few salvaged autos were also present then. The use of a tract for “the overflow” from an auto salvage operation has been held to be a casual and incidental use insufficient to establish a principal use as a non-conforming auto salvage business. Ashline v. Bristol Township Zoning Bd. of Adjustment, 408 Pa. 245, 182 A.2d 531, 533[2, 3] (1962).

We hold that there was no error in the trial court’s enjoining the continued use of the East Parcel for the operation of an automobile salvaging business, an automobile sales business, or an automobile sales business which includes the open storage of wrecked or damaged automobiles, automobile parts, equipment and accessories.

II. The West Parcel

Defendants, in their brief, state that they do not wish to contest the trial court’s decision with regard to the West Parcel “to the extent that it enjoins them from making any use of it which was not permitted in the district in which it was zoned in 1967, i. e. light industry, designated at (sic) M-l.” They do contend, however, that because the evidence of both parties was to the effect that there has been an automobile repair garage on the West Parcel since 1967, the decree should be limited so as not to enjoin use of the West Parcel for a public garage and the storage of machinery and accessory uses customarily incident to such uses which were permissible in the M-l District between 1967 and 1973.

Our reading of the judgment with respect to the West Parcel causes us to conclude that what the trial court did enjoin was the storage of automobile parts, equipment, and accessories outside of a building pursuant to the business conducted by Goodfellow Auto Sales and Salvage Company on said Parcel as being in violation of Section 5, M-l Light Industrial District, of the 1973 Zoning Order. It did not enjoin defendants’ operation of the automobile storage or repair business, so long as said automobile parts and equipment are not stored outside of any building used for said business.

As we comprehend defendants’ argument, the storage of automobile parts, equipment and accessories outside the building in which they have been conducting their automobile repair business since 1967 is a reasonably necessary incident to the business of a public garage and therefore the storage of machinery on said premises should be exempt from the injunction.

A “public garage” is defined in the 1973 Zoning Order as “a building or portion thereof, designed or used for the storage, sale, hiring, care or repair of motor vehicles, which is open for commercial purposes.” (Emphasis supplied). Section 2, 1973 Zoning Order, p. 7. The 1959 Zoning Order employed the same definition of the term, except it had the word “operated” rather than “opened” before the words “for commercial purposes.” 1959 Zoning Order, Section 1, p. 5.

Both the 1959 Zoning Order and the 1973 Zoning Order defined the term “Accessory Building or Use” in these terms:

“A subordinate building having a use customarily incident to and located on the lot occupied by the main building; or a use customarily incident to the main use of the property . . .” (Emphasis supplied).

The operation of a public garage, a place for automobile repair or sales or storage, new or used, are uses allowed in the C-2 District, except that with respect to an auto repair business no dismantled vehicles or parts might be displayed or stored outside the building in which the business is operated. 1973 Zoning Order, p. 57, and 1959 Zoning Order, p. 33.

These uses aforesaid were also permitted in the M — 1, Light Industrial District, 1973 Zoning Order, Section 5, p. 63 and 1959 Zoning Order, Section 14, pp. 41 and 42. Accessory uses customarily incident to any of these uses were also allowed.

Defendants candidly admit they have found no definition of accessory uses for a public garage nor for the storage of machinery. They rely, therefore, on a case wherein it was held that a business office was a proper accessory use to a nursery and that the conduct of a landscaping service and the sale of fungicides, insecticides, chemicals, peat moss, humus, mulches and fertilizers by the nursery was a legal accessory to said nursery business. Suburbia Gardens Nursery, Inc. v. County of St. Louis, 377 S.W.2d 266 (Mo. banc 1964).

The court in Suburbia, however, also held that the sale of drainage materials, edgings, bricks, railroad ties, sand, gravel, crushed rock, and items of a similar nature, not being the product of a nursery, was not accessory or incidental to the nursery business as authorized by the zoning ordinance being enforced in that ease.

In determining whether a use is an accessory or incidental use permitted on those grounds, the decision must be made on the basis of the wording of the particular ordinance and the context in which it occurs. Suburbia Gardens Nursery, Inc. v. County of St. Louis, supra, 1. c. 272[5].

We hold that the trial court did not err in enjoining the storage, in the open, of automobile parts, equipment and accessories outside the public garage defendants operate on this West Parcel.

Defendants, caught on the horns of a dilemma, point out that the evidence by both sides “indicated” that there has been an “automobile repair garage” on the West Parcel since 1967; however, they then shift their ground, and seem to evade the restriction against the display or storage of dismantled vehicles or parts thereof imposed on a business for automobile repair.

Defendants argue further that this injunction should be so worded as to exempt any activity that is a “reasonable, necessary incident” to the storage of machinery. We believe that it is clear from a consideration of the wording of the Zoning Order that the County did not, either specifically nor by implication, authorize the open storage of dismantled automobile bodies nor parts as an accessory to the operation of a public garage. Of the various uses permitted in a C — 1 District, only one business involving repair of machinery — the sale and repair of farm machinery — was not expressly prohibited from outside storage. Section 5, subsection C-2(g), 1973 Zoning Order, p. 55. The other repair operations permitted under subsection C-2(p), i. e. “. . . tire sales and service, upholstering and other general service or repair establishments) of similar character,” may use only 10% of the lot or tract occupied by the business for the open and unenclosed storage of materials or equipment. 1973 Zoning Order, p. 58. Although subsection C-2(b) authorizes the storage of automobiles, boats, trucks and trailers without any express restrictions as to outside storage, that subsection applies only to sale and storage and does not include dismantling and repair of same. Even under the less restrictive provisions of the M-l District, those items which may be stored in the open include supplies and bulk items for sale and not the dismantling or repair of automobiles.

Nor is there any basis for a conclusion that the “storage of machinery” argument is any more valid under the 1959 Zoning Order. Under that Zoning Order the definition of a storage garage, like a public garage, refers to a building or a portion of a building. Sales and storage areas for automobiles, boats, trucks, and trailers are authorized provided there is no storage of dismantled vehicles and parts “outside the building.” 1959 Zoning Ordinance, p. 33. Therefore, the storage of dismantled vehicles and parts thereof could not constitute an accessory or incidental use, and even if commenced prior to the enactment of the 1973 Zoning Order could not be the basis for a non-conforming use. Anderson, American Law of Zoning, supra, Section 6.12, p. 333.

Similar prohibitions and restrictions distinguishing between outdoor and indoor storage have been held to be a reasonable and not arbitrary exercise of the powers of a Zoning Authority. N. Y. Central R.R. v. Ridgefield, 84 N.J.Super. 85, 201 A.2d 67, 71[2, 7, 8] (1964).

We rule this Point against defendants.

Defendants’ final Point is: “Defendants’ use of their East and West Parcels did not constitute a private nuisance so as to entitle plaintiffs to an injunction.” This abstract statement preserves nothing for review for the reason it fails to state wherein and why the action of the trial court’s decree was erroneous. Rule 84.-04(d). We rule this Point against defendants.

The judgment of the trial court is affirmed.

GUNN, P. J., and WEIER, J., concur.

APPENDIX

1973 Revised Zoning Order for St. Charles County, Missouri.

SECTION 2 — DEFINITIONS

For the purpose of this Order, the following words and terms used herein are defined to mean the following:

ACCESSORY BUILDING OR USE: A subordinate building having a use customarily incident to and located on the lot occupied by the main building; or a use customarily incident to the main use of the property. A building housing an accessory use is considered an integral part of the main building when it has any part of a wall in common with the main building, or is under an extension of the main roof and designed as an integral part of the main building, (p. 3)

CONDITIONAL USE: A use allowed in a zoning district after a permit is granted in accordance with the provisions of Section 11 of this Order, (p. 5).

GARAGE, PUBLIC: A building or portion thereof, designed or used for the storage, sale, hiring, care or repair of motor vehicles, which is open for commercial purposes. (p. 7)

NONCONFORMING USE: The lawful use of land or a building, or a portion thereof, which use does not conform with the use regulations of the district in which it is located and which use existed at the time of the adoption of this Order, (p. 10).

SECTION 5 — DISTRICT REGULATIONS

M-l LIGHT INDUSTRIAL DISTRICT

Permissive Uses

(a) Any permissive or conditional use of the C-2 District except dwellings, provided dwellings for, and to be occupied by, watchmen, guards, attendants and other personnel who customarily reside on the premises, shall be permitted on the premises of an industrial use permitted herein, (p. 63).

(k) Machine shops, electroplating, photo engraving, plumbing and sheet metal shops and similar processes, (p. 63)

(s) Accessory uses customarily incident to any of the above uses. (p. 64)

C-2 GENERAL COMMERCIAL DISTRICT

Permissive Uses

(c) Automobile service station and automobile repair, provided no dismantled vehicles or parts are displayed or stored outside the building, (p. 57)

(l) Public garage or parking lot. (p. 57)

(q) Accessory uses customarily incident to any of the above uses. (p. 57)

M-2 HEAVY INDUSTRIAL DISTRICT

Permissive Uses

Any use except the following conditional uses and except that no dwelling other than that for a resident watchman or caretaker employed on the premises shall be permitted.

Conditional Uses

(b) Automobile wrecking, cars and parts, storage and sale. (p. 65)

SECTION 9 — NONCONFORMING USE REGULATIONS

Nonconforming Use of Land. In the residential districts where open land is being used as a nonconforming use, and such use is the principal use and not accessory to the main use conducted in a building, such use shall be discontinued not later than 5 years from the date of passage of this Order. During the 5 year period such nonconforming use shall not be extended or enlarged, either on the same or adjoining property Any nonconforming junk yard may be continued for a period of more than 5 years provided it is enclosed with an 8 foot high sight-proof fence, (p. 89)

Conditional Uses Not Nonconforming. Existing uses eligible for conditional use permits shall not be nonconforming uses, but shall require a conditional use permit for any alteration, enlargement or extension.

Intermittent Use. The casual, intermittent, temporary or illegal use of land or buildings shall not be sufficient to establish the existence of a nonconforming use and the existence of a nonconforming use on the part of a lot or tract shall not be construed to establish a nonconforming use on the entire lot or tract, (p. 90)

Existence of a Nonconforming Use. Whether a nonconforming use exists shall be a question of fact and shall be decided by the Board of Adjustment after public notice and hearing and in accordance with the rules of the Board, (p. 91)

Nonconforming Use Due to Change in Zoning. Whenever the use of a building becomes nonconforming through an amendment to the Zoning Order or Zoning District Map, such use may be continued and if no structural alterations are made, it may be changed to another nonconforming use of a higher classification.

Nonconforming Use Enlarged. A building or lot containing a nonconforming use may not be enlarged, extended, reconstructed or altered unless such use is made to conform to the regulations of the district in which it is located; provided, however, that in case of evident hardship a building containing a nonconforming use may be enlarged an amount not greater than 25 percent of its present ground floor area by variance from the Board of Adjustment after public hearing, (p. 91)

SECTION 11 — ADMINISTRATION

A. Conditional Uses

Applications for conditional permits for uses specifically authorized for consideration in the district use regulations shall be made to the County Court. The County Court shall refer the application to the Planning and Zoning Commission for investigation and public hearing. A public hearing shall be held and a report and recommendation shall be filed by the Commission with the County Court within 90 days of the day of referral to the Commission. Following report by the Commission, the County Court shall review and decide upon the application.

Before authorizing the issuance of such a conditional use permit, the County Court may impose such conditions as will, in the County Court’s judgment, insure that:

The establishment, maintenance, or operation of the conditional use will not be detrimental to or endanger the public health, safety, morals, comfort or general welfare.

The conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted nor substantially diminish and impair property values within the neighborhood.

The establishment of the conditional use will not impede the normal and orderly development and improvement of surrounding property for uses permitted in the district.

Adequate utilities, access roads, drainage and/or other necessary facilities will be provided. (p. 97)

Adequate measures will be taken to provide ingress and egress so designed as to minimize traffic congestion in the public streets.

The conditional use shall in all other respects conform to the applicable regulations of the district in which it is located and the County Court shall find that there is a public necessity for the conditional use. (p. 98)

The 1959 Zoning Order of St. Charles County, Missouri

SECTION 14. DISTRICT M-l. LIGHT INDUSTRIAL DISTRICT USE REGULATIONS

In District M-l no building, structure, land or premises shall be used except for one of the following uses: (• • •)

1. Any use permitted in District C-2 except dwellings, provided dwellings necessary for, and to be occupied by, watchmen . . ., shall be permitted on the premises of an industrial use permitted herein.

20. Garages, (public).

42. Accessory uses customarily incident to any of the above uses.

(1959 ZONING ORDER, pp. 41-43)

SECTION 15. DISTRICT M-2. HEAVY INDUSTRIAL DISTRICT USE REGULATIONS

In District M-2, no building, structure, land or premises shall be used . except for one or more of the following uses: (. . .)

1. Any use permitted in District M-l.

37. Salvage and junk yards, provided such yards shall be completely enclosed by a solid fence or wall not less than eight (8) feet high.

(1959 ZONING ORDER, pp. 44-46)

SECTION 16. NONCONFORMING USES

2. Non-Conforming Use Due to Change in Zoning. Whenever the use of a building becomes nonconforming through an amendment to the Zoning Order or Zoning District Map, such use may be continued .

(1959 ZONING ORDER, pp. 47-48)

1959 Zoning Order of St. Charles County, Missouri as amended in 1967

SECTION 15. DISTRICT M-2. HEAVY INDUSTRIAL USE REGULATIONS

37. (DELETED)

The following additional uses may be permitted after the location of such use shall have been approved by the County Court, after report by the County Engineer and the Planning and Zoning Commission:

o. Salvage yard.

      . Defendants, in their Answer, also challenged the constitutionality of the 1969 and 1973 amendments to the Zoning Order; however, because of the basis upon which the trial court’s judgment rests, the constitutional issues were not reached.


text:
    MASONIC TEMPLE ASSOCIATION OF ST. LOUIS, a corporation, Plaintiff-Appellant, v. David H. VICTOR et al., Defendants-Respondents.
    No. 37649.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 29, 1977.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.
    Application to Transfer Denied March 13,1978.

      Alan E. DeWoskin, Clayton, for plaintiff-appellant.
    James J. Raymond, Clayton, for defendants-respondents.
   KELLY, Judge.

This appeal from the Circuit Court of the City of St. Louis presents the single question whether the trial court erred in sustaining the defendants-respondents’ Motions for Summary Judgment. Because we conclude that the trial court did so err, we reverse the judgment and remand the cause to the trial court for further proceedings in accord with our holding herein.

Following are the facts gleaned from the record on appeal.

Plaintiff (as appellant, Masonic Temple Association of St. Louis shall hereinafter be identified) is a not for profit corporation incorporated pursuant to the authority of Article 10, Chapter 33 RSMo. 1909, by a decree of the Circuit Court of the City of St. Louis of September 15, 1917, for the purpose of financing, locating erecting, building, establishing, equipping, maintaining and operating a Masonic Temple in the City of St. Louis.

The defendants-respondents are two Lodges of the Ancient Free and Accepted Masons — St. Louis Lodge No. 20 and Aurora Lodge No. 267 — and 22 individuals who are members of the two Lodges, 11 from each, as representatives of their respective lodge membership, as a class. Both of the Lodges are unincorporated associations. At the time of the filing of the petition there were approximately 500 members of the St. Louis Lodge No. 20 and 200 members of the Aurora Lodge No. 267.

Prior to the incorporation of the plaintiff a number of Lodges of the Masonic Order held their meetings in a Temple on Grand Avenue in the City of St. Louis. Desirous of erecting a new Temple, representatives of both of these Lodges, together with representatives of 18 other Lodges and two Chapters of the Eastern Star, referred to in the plaintiff’s petition as “Original Members,” entered into what is identified as the “Temple Basic Contract,” wherein the signatories recommended the erection of a Masonic Temple for Masonic purposes only and for the use of the several Masonic bodies and Eastern Star Chapters then meeting at the Grand Avenue Masonic Temple. This Contract provided a method of raising the funds for erection of the new Temple, the amount of contribution thereto by each signatory on a per capita basis, and the time schedule for payment of said contributions. Provision was made in the Contract that each contributing body should also pay its proportionate share toward the “upkeep” of the Temple, said share to be set by the board of directors of the proposed corporation to be incorporated pursuant to the law governing the organization of Benevolent, Religious, etc. corporations for the purpose of financing, locating, building, establishing, maintaining and operating the proposed new Temple, which would be named “The Masonic Temple Association of St. Louis.”

After plaintiff was incorporated it proceeded to erect the new Temple and upon completion thereof, sometime in 1926, these defendants and the other original members who were parties to the Temple Basic Contract, in accord with the Contract, the Articles of Agreement and the By-Laws of the plaintiff, became active members of the plaintiff Association entitled to the use of the new Temple premises for the purpose of Masonic activities only and also became liable for payment of their share of the cost of the erection and upkeep of the Temple as determined by the board of directors of the plaintiff Association.

The defendants commenced holding their meetings in the new Temple once it was opened in 1926 and paid in full their contribution to the erection of the Temple in accordance with the terms of the Temple Basic Contract, the Articles of Agreement, and the By-Laws of the plaintiff. During the period these defendants enjoyed the use of the new Temple they also enjoyed the privileges of membership in the plaintiff Association and, through their representatives on the plaintiff’s board of directors, who were duly elected by the members of said unincorporated associations, actively participated in the management of the plaintiff Association. So long as these defendants continued holding their meetings in the new Temple they also paid their respective per capita share of the cost of “upkeep” of the Temple as determined by the board of directors of the Association.

In the period between the occupancy of the new Temple and the filing of the petition in this cause, 18 “New Members” have joined the plaintiff Association and have taken advantage of the privileges of membership therein, so that when the petition in this case was filed there were 39 active members in plaintiff Association.

On September 10, 1957, the By-Laws of the plaintiff Association were amended and the definition of “upkeep” as that term was used in the Temple Basic Contract and the By-Laws of the Association prior thereto, was changed to include (1) the cost of maintenance, and (2) interest charges and amortization of any debt then or thereafter placed on the Temple and to require that each active member should be charged for all such items of upkeep on a fixed and uniform basis, to be determined by the privileges accorded such active member.

Sometime in December, 1960, one of the original members of the plaintiff Association — West Gate Lodge No. 445 — withdrew from membership in the Association and refused to pay its share of the upkeep of the Temple accruing after termination of its membership. This precipitated litigation which culminated in a decision of this court, Masonic Temple Association of St. Louis v. Farrar, Mo.App., 422 S.W.2d 95 (1967). In the Farrar case this court held that the plaintiff, having voluntarily submitted the controversy with the West Gate Lodge No. 445, to two state fraternal society committees of the Grand Lodge of the Masonic Order had thereby entered into common law arbitration and was conclusively bound by the arbitration award declaring that the Lodge and its membership could unilaterally withdraw from membership in plaintiff Association and could not thereafter be required to pay its share of the upkeep of the Temple.

Thereafter, on or about July 9, 1971, defendant St. Louis Lodge No. 20 (hereinafter, St. Louis) notified the plaintiff Association that its members had voted to move from the Temple and from that time forward it did not participate in the active management of the plaintiff nor pay the periodic statements rendered it by the plaintiff for payment of its pro rata share of the upkeep of the Temple.

On or about April 1, 1972, Aurora Lodge No. 267 (hereinafter, Aurora) likewise notified the plaintiff that its members too had voted to move from the Temple no later than April 30, 1972. Aurora did move out of the Temple on or before April 30, 1972, and did not thereafter participate in the active management of the Temple Association nor pay the periodic statements rendered it by the plaintiff for the upkeep of the Temple.

Neither St. Louis nor Aurora had the consent of any of the members of the plaintiff Association to withdraw from same nor to terminate the payment of their proportionate share of the cost of upkeep of the Temple after they had withdrawn from the plaintiff Association. Despite repeated demands that each of these Lodges remit their respective payments for the upkeep of the Temple following their withdrawal from the plaintiff Association, they have both continued to refuse to pay same.

This petition seeking a declaratory judgment declaring the respective rights and liabilities of the parties under the Temple Basic Contract, the Articles of Agreement of the plaintiff Association and the ByLaws of the Temple Association enacted pursuant thereto, was filed in the Circuit Court of the City of St. Louis on the 28th day of June, 1973. In addition to a declaration of the rights and liabilities of the parties, plaintiff also sought a money judgment against each of the unincorporated associations; $7,200 with interest at the rate of 6% per annum from St. Louis and $2,100 with interest at the rate of 6% per annum from Aurora. Plaintiff sought no personal judgments against the individual members of either of the Lodges.

Although not specifically named as par-, ties in the petition, plaintiff further sought a declaration of the rights and status of the Temple Association and each of its members so as to enable it to determine the equity positions of all of its members, and more particularly, if said members at the time of the filing of the petition were not members of the plaintiff at the time of its dissolution.

Both St. Louis and Aurora filed Answers to the plaintiff’s petition, as amended by interlineation. St. Louis’ Answer was essentially a general denial but did contain specific allegations which are not pertinent to the issue here for resolution; they were directed, for the most part to allegations of mismanagement by plaintiff. Affirmative defenses of laches and res judicata were pleaded.

Aurora’s Answer likewise was essentially a general denial of the allegations of plaintiff in its petition, as amended, together with allegations of mismanagement and the affirmative defenses of laches, res judicata and/or collateral estoppel.

Plaintiff filed replies to each of the defendants’ Answers. Its reply to Aurora’s Answer was filed on September 18, 1975, and that with respect to St. Louis, on October 16,1975. Each Reply is identical, denying each and every allegation of defenses contained in defendants’ Answers, and further alleging, as affirmative defenses, lach-es and estoppel to the affirmative defenses pleaded by the defendants.

With the case in this posture the defendants filed their separate, but also identical, Motions for Summary Judgment “on the ground that even if the facts alleged in Plaintiff’s petition are true” they were entitled to a judgment “as a matter of law.”

These latter Motions were filed on October 16, 1975, and on the same date, after some discussion between the trial court and counsel for the parties, the trial court ruled on a number of pending motions and sustained defendants’ Motions for Summary Judgment because it felt that the opinion in the Farrar case was “binding.”

A timely Notice of Appeal was filed by plaintiff.

We conclude that whether the Farrar decision is res judicata or estoppel by judgment is not a basis upon which summary judgment might properly be entered on the record in this case. Assuming, without deciding, that Farrar is res judicata or estop-pel by judgment, as contended by defendants, plaintiff has, in its replies alleged that these defendants may not invoke these affirmative defenses by reason of laches or estoppel on their part. These pleadings raise fact issues which remain unresolved and therefore summary judgment does not lie. Allen v. St. Luke’s Hospital of Kansas City, 532 S.W.2d 505, 507[2] (Mo.App.1975).

Reversed and remanded.

GUNN, P. J., and WEIER, J., concur.

      . Farrar was one of the members named as representative of the class of members of the West Gate Lodge No. 445, an unincorporated association, in this earlier suit.

      . Plaintiff amended its petition by interline-ation on March 6, 1974 by amending paragraph 1 thereof by adding an allegation that it had been authorized to carry on this litigation by its Board of Directors, and striking paragraph 11 of said petition and substituting in its place a new paragraph 11 which did not result in any drastic changes in the petition as originally pleaded. Aurora’s Answer was filed on May 15, 1974, and St. Louis’ on December 16, 1974. There were numerous motions filed by all parties which contributed to the delay in bringing the cause to issue earlier.


author: SMITH, Judge.

text:
    MFA MUTUAL INSURANCE COMPANY, Plaintiff-Respondent, v. Helen THOST et al., Defendants, and Hartford Accident & Indemnity Company, a corporation, Intervenor-Appellant.
    No. 38107.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 3, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.
    Application to Transfer Denied March 13,1978.

      Godfrey, Vanover & Burns, Inc., James E. Godfrey, St. Louis, for intervenor-appellant.
    Kortenhof & Ely, St. Louis, Robert Lee Smith, Hillsboro, for Crews.
    William L. Pannell, Festus, for Harry Clark.
   SMITH, Judge.

Intervenor, Hartford Accident and Indemnity Company, appeals from a declaratory judgment following a trial to the court. The judgment entered declared that plaintiff, MFA Mutual Insurance Company, was relieved of all liability to defend any suit or to pay any judgment arising from a specified automobile accident involving an automobile insured by MFA and operated by either Helen Thost or Harry Clark, defendants. Thost and Clark had been sued in a separate action by defendants Lloyd and Carol Crews for damages sustained as a result of injuries to Lloyd Crews incurred in the accident. The trial court’s judgment was based upon its finding that Thost and Clark had breached a condition of the policy by failing to cooperate with MFA in not disclosing all pertinent facts known to them. Hartford is the carrier of Crews’ uninsured motorist coverage.

The accident occurred in the early morning hours of December 8, 1973, near DeSo-to, Missouri. At the scene of the accident approximately 20 minutes after it occurred, Miss Thost told a highway patrolman she was the operator of the insured vehicle and that Harry Clark was a passenger in the vehicle. On the same day as the accident, Miss Thost filled out a claim form for MFA and four days later gave a recorded statement to its claim agent. In each she stated she was the operator of the insured vehicle, that Harry Clark was a passenger in that vehicle and that she did not know or remember how the accident happened. On Form SR 21 prepared in January 1974 for filing with the State of Missouri pursuant to the Safety Responsibility Law, she also indicated that she was the operator of the vehicle. On January 10, 1975, Miss Thost gave a deposition in the Crews’ suit, wherein she testified that Harry Clark was the driver of the insured vehicle at the time of the accident and that she was asleep in the front passenger seat when the accident occurred. She advised an MFA representative of the change in her story immediately before giving the deposition.

Following Miss Thost’s deposition testimony, MFA stopped all further investigation of the accident, changed lawyers and filed its declaratory judgment action.

At trial certain additional information was elicited from Miss Thost. She admitted she had been drinking heavily prior to the accident which she stated was the reason Mr. Clark was driving the vehicle. Prior to the accident Clark had stopped at a service station and the attendant there had seen and recognized Miss Thost and had indicated his recognition to her. There was no evidence that any attempt to locate this witness was made by MFA and the witness was not produced at the hearing. Miss Thost “ran around with” Mr. Clark, the father of a school friend. The damage to the Thost car was such that the driver’s door could not be opened. The vehicle was owned and insured by Miss Thost’s father, but she was a “part owner”, the primary operator, and was allowed to let other people drive it.

Harry Clark denied throughout the investigation and at the trial that he was driving the vehicle, that he was a passenger therein, or that he was at the scene of the accident. He testified he had seen Miss Thost shortly before the accident at a tavern in DeSoto. He testified that he saw her sitting in the passenger seat of the car, asked her how she felt and upon being told “I’ll be alright after I rest a while” he got in his car and drove directly home.

The testimony of the highway patrolman was that Miss Thost stated to him she was the operator of the insured car and Harry Clark was a passenger. The patrolman further testified that Miss Thost was coherent and not “too upset”, that there was no indication anyone other than Miss Thost was driving the car; and that the patrolman did not observe Harry Clark at the scene.

An independent witness testified that he did not see the collision but did see the dust from it and the headlights go out. He parked his car and arrived on foot at the accident scene within 60 seconds of the collision. He saw only Miss Thost in the insured vehicle. She was on the passenger side. He saw no one get out of her vehicle, heard no footsteps or doors close, and saw and heard nothing to indicate anyone else was in the vehicle.

MFA’s claim’s manager stated as a conclusion that he relied upon the original statements of Miss Thost, but did not specify in what way. He admitted that her change in story in no way affected the company’s ability to locate witnesses.

The trial court found that the original story of Miss Thost was false and that the false statements prejudiced MFA and that MFA relied upon the false statements of both Thost and Clark “to its detriment in the acceptance and preparation of the defense in cause No. 45376.” (Emphasis supplied).

Under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) our standard of review is to sustain the decree unless (1) there is no substantial evidence to support it, (2) it is against the weight of the evidence, (3) unless it erroneously declares the law or (4) unless it erroneously applies the law.

The insurance policy in question contains the following provision: “Assistance and Cooperation of the Insured — The Insured shall cooperate, with the Company, disclosing all pertinent facts known or available to him . . . .” There is no forfeiture provision in the policy for breach of this condition. Cooperation agreements are valid and enforceable in this state. Quisenberry v. Kartsonis, 297 S.W.2d 450 (Mo.1956) [1-4]; Meyers v. Smith, 375 S.W.2d 9 (Mo.1964) [6, 7]. The cases in this state are not in agreement whether such a provision is a condition precedent or condition subsequent to recovery on the contract. The label is of little consequence. Under Missouri law, certain legal principles govern the applicability of non-cooperation clauses. First, unless the policy contains a forfeiture clause, an insurance company may not avoid coverage unless it has been prejudiced by the lack of cooperation. Cockrell v. Farmers Mutual Automobile Ins. Co., 427 S.W.2d 303 (Mo.App.1968) [2]; Schultz v. Queen Insurance Company, 399 S.W.2d 230 (Mo.App.1965) [1]; Meyer v. Smith, supra, [2, 3]; Hawkeye-Security Insurance Co. v. Davis, 277 F.2d 765 (8 Cir. 1960) [4]; Western Casualty Surety Co. v. Coleman, 186 F.2d 40 (8 Cir. 1950) [4]; Contra: Northwestern Mutual Ins. Co. v. Independence Mutual Ins. Co., 319 S.W.2d 898 (Mo.App.1959) [8, 9]. Secondly, the burden of establishing non-cooperation and prejudice is upon the insurance company seeking to avoid coverage. Meyers v. Smith, supra, [8], Thirdly, the obligation to cooperate is upon the insured and anyone operating the vehicle who is covered by the policy. Meyers v. Smith, supra, [6, 7].

With these considerations in mind, we find the trial court erred in entering judgment for MFA and in failing to enter a judgment finding and declaring that MFA was not relieved of its contractual obligations because of non-cooperation of the insured.

Initially, we note our serious doubts that the finding of the trial court that Miss Thost was untruthful in her original statements is supported by substantial evidence. See Meyers v. Smith, supra. While we normally defer to a trial court’s determinations of credibility, there are limits to the deference policy. Here the only evidence to support the court’s finding is Miss Thost’s testimony at trial. Arrayed against that are: (1) her statements made immediately after the accident to the highway patrolman; (2) the patrolman’s testimony that Mr. Clark was not present at the scene; (3) Mr. Clark’s testimony and repeated denials of his presence in the car; (4) the testimony of a neutral eyewitness who saw no evidence of Mr. Clark one minute or less after the accident; (5) the physical fact that Mr. Clark would have had to recover from the shock of the accident, extricate himself from the automobile other than through the driver’s door and leave the scene in less than a minute and be unseen by a man walking to the scene of the crash; (6) the absence of a witness who was known to Miss Thost and could have corroborated her story and the failure of MFA to account for this absence; (7) Miss Thost’s admitted intoxication on the night of the accident, and the fact that her story at trial was personally less incriminating to her than an admission of driving while intoxicated. However, we do not rule this case on this issue but rather on the question of prejudice.

In this regard there is not only no substantial evidence to support the court’s finding, there is no evidence at all. Specifically the trial court found that Miss Thost’s (and Mr. Clark’s) false statements were relied upon by MFA to its detriment in accepting and preparing the defense of the case. There is no evidence of either. It is clear from the record and counsel for plaintiff admitted on oral argument that MFA was bound to defend either Miss Thost or the second permittee Mr. Clark under the policy. Which of them was driving was therefore of no consequence to MFA’s acceptance of the case.

It is also clear from the record, and plaintiff’s claims manager so testified, that the investigation of the suit was not affected by Miss Thost’s story. Her story in no way prevented the location of witnesses or the production of evidence.

The only suggestion that MFA has made to support a claim of prejudice is that the change in Miss Thost’s story and Mr. Clark’s refusal to admit his presence has damaged their credibility at trial. As to Miss Thost, that may be. But Miss Thost’s statements to MFA after the accident were that she had no knowledge or memory of how the accident occurred. The same was true of her testimony in her deposition and at trial. In view of her consistent denial of knowledge of the circumstances of the accident, it is difficult to determine what difference her credibility would make in defense of the Crews’ suit. As to Mr. Clark, it can hardly be presumed, in view of his persistent denial of presence, that his testimony at trial would be of any benefit to a defense or that an attack on his credibility could in anyway affect the defense. As yet he has never made an inconsistent statement upon which to base an attack on his credibility. It is just as reasonable to presume that if Mr. Clark has heretofore been lying, his truthful testimony would support the Crews’ position rather than to presume that it would serve to defeat it. And of course, it will be the Crews’ burden, not MFA’s, to establish who the driver was. We find the factual situation here closely akin to that found in Meyers v. Smith, supra. It differs substantially from the collusion cases cited by MFA. See Quisenberry v. Kartsonis, supra; Drennen v. Wren, 416 S.W.2d 229 (Mo.App.1967).

It can be readily conceded that defense of the Crews’ suit by MFA is not an easy task. But, we find no basis in the record for concluding that this difficulty is the result of lack of cooperation by Miss Thost or Mr. Clark. MFA is not entitled to be relieved of the contractual obligations because its road is rocky.

Judgment reversed, cause remanded with instructions to enter a judgment declaring MFA is not relieved of its obligations under its contract because of lack of cooperation of the insured, Miss Thost or Mr. Clark.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: PER CURIAM.

text:
    STATE ex rel. Olive Kraus EICHORN et al., Relators, v. Honorable Drew W. LUTEN, Jr., Respondent.
    No. 38625.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Jan. 10, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.
    Application to Transfer Denied March 13,1978.
    Donald V. Fraser, Jr., St. Louis, for rela-tors.
    Lucas & Murphy, Joseph A. Murphy, David G. Lupo, St. Louis, for respondent.
   PER CURIAM.

This mandamus action was brought by the relators to compel the respondent trial court to set aside an order reinstating a default judgment against relators in an action to bar termination of a trust.

The germ seeds of this proceeding were planted many years ago — November 10, 1970 — with a suit filed by American Cancer Society to block termination of a trust in which relators, American Cancer Society and others were contingent remaindermen. The original suit was filed to halt the trustee, Robert W. Hammerstein, Jr., from terminating the trust in favor of the surviving beneficiary, John H. Knoll, Jr., now deceased. This somewhat jaded litigation involves a prolix maze of legal maneuverings which we are required to detail.

American Cancer Society joined all contingent beneficiaries in the November 10, 1970 action, and all beneficiaries appeared, but many, including relators, did not file pleadings. On January 3, 1973, respondent trial court rendered a default judgment against relators and others who had not filed pleadings. It is apparent that those who failed to file pleadings did so believing their interests were adequately represented by American Cancer Society. American Cancer Society had filed the suit to halt the termination of the trust, and it was to relators’ advantage that the trust not be terminated. However, the American Cancer suit took an unexpected twist. In June, 1973, after the default judgment was entered, American Cancer and other parties to the suit agreed on a settlement for the termination and distribution of assets of the trust. The relators were excluded from any participation in the settlement and were not to share in any of the proceeds of the settlement.

On February 27, 1973, three weeks after the death of John Knoll, relators filed their motion to set aside the default judgment taken against them for their failure to file pleadings. On May 31,1973, the respondent trial court denied relators’ motion to set aside the default judgment and ordered specific performance of the settlement agreement entered into by the trustees, American Cancer and certain other parties. Relators then sought to obtain a writ of prohibition from this court to stop enforcement of the settlement. In State ex rel. Eichorn v. Luten, 515 S.W.2d 857 (Mo.App.1974), a permanent writ of prohibition was ordered as requested by relators. The court held that termination of a trust by a settlement with provisions contrary to those in the trust instrument could not be accomplished unless all beneficiaries, including contingent remaindermen, were parties to the settlement. Because relators had not been made parties to the settlement agreement, it was unenforceable.

On December 18, 1973, while final decision on the application for writ of prohibition in the first Eichorn case was pending, relators filed a notice of appeal contesting respondent trial court’s denial of their motion to set aside the January 3, 1973 default judgment. Prior to the disposition of the appeal, the writ of prohibition was issued. Relators then filed a motion with the respondent trial court on January 8, 1975 to set aside the May 31, 1973 order which had denied relators’ motion to set aside the default judgment, ordered specific performance of the settlement agreement and made final the default judgment against relators. On April 8, 1975, relators’ January 8, 1975 motion was sustained and the default judgment was set aside. Relators then filed their answers to the original suit seeking to halt the termination of the trust agreement. On September 18, 1975, relators’ appeal contesting the trial court’s denial of their initial motion to set aside the default judgment was dismissed by this court for failure of perfection. On October 11,1976, the trustee, Robert W. Hammerstein, Jr., filed a motion to set aside the respondent trial court’s order of April 8,1975 (the order setting aside default judgment) on the ground that (1) during the contingency of the appeal by relators, the trial court had no jurisdiction to enter the April 8, 1975 order, and (2) the dismissal of appeal on September 18, 1975 made the default judgment final so it could not be set aside. On August 22, 1976, the respondent trial court sustained the trustee’s motion to set aside the order setting aside the default judgment against relators, thereby purportedly reinstating the default judgment. Relators then filed this petition for writ of mandamus asking that we order the respondent trial court to vacate its order of August 22, 1976. We issued an alternative writ of mandamus, and for the reasons which follow we make the writ peremptory.

The key issue in this case is whether the default judgment of January 3, 1973 was an interlocutory or final judgment. Under Rules 74.045 and 74.08, it is apparent that the default judgment issued was interlocutory only. Rule 74.08 provides that where there are several defendants in a suit and some of them make default, an interlocutory judgment by default may be entered against those in default, and the cause may proceed against the others. But the rule specifically provides that only one final judgment shall be given in the actions. Here, although some of the parties (e. g., the trustee and American Cancer Society), attempted to terminate the litigation through settlement, the writ of prohibition issued in the first Eichron case prevented the enforcement of the settlement, and the original suit is still pending. The default judgment of January 3, 1973, is therefore interlocutory, because no final judgment has been entered. The law is clear that no final, appealable order exists unless the judgment disposes of all parties and issues in the case. Bolin v. Farmers Alliance Mut. Ins. Co., 549 S.W.2d 886 (Mo.Banc 1977); State ex rel. Crawford Cty. R-II Sch. Dist. v. Bouse, 550 S.W.2d 909 (Mo.App.1977); Claspill v. Craig, 546 S.W.2d 202 (Mo.App.1977). As the default judgment of January 3, 1973 was interlocutory and a non-appeal-able order, the respondent trial court did have jurisdiction to enter its order of April 8, 1975, which set aside the order setting aside the default judgment.

Attorneys for respondent trial court argue that under Rule 75.01, the trial court lost its jurisdiction to set aside the default judgment on April 8, 1975, because that issue was on appeal. But this specific issue was addressed in Ray Nolting Oldsmobile Co. v. 66 Watson Development Co., 518 S.W.2d 167 (Mo.App.1974). In the Ray Nolting case, we held that where a non-ap-pealable order is appealed, the trial court does not lose its jurisdiction to make subsequent orders. Thus, the respondent trial court had jurisdiction to set aside the default judgment by its order of April 8,1975. After the default judgment was set aside, the relators filed their answers. Having filed their answers, they were no longer in default. As relators were not in default, respondent trial court could not reinstate the default judgment. It is on this basis that the writ of mandamus lies.

The motion to dismiss the alternative writ of mandamus is denied, and the writ of mandamus heretofore issued is made peremptory.

All Judges concur.

      . There was no need at this point for the rela-tors to continue their appeal, for the default judgment against them had been set aside and they were now back in their law suit to halt the termination of the trust, which is where they wanted to be.

      . Attorneys for respondent trial court refer to an order of respondent dated January 27, 1977, purporting to dismiss relators’ motion to set aside the default judgment of May 31, 1973 and argue that the January 27 order is still in effect. For the reasons set forth in this opinion, the order of January 27, 1977 is of no force.