author: FLANIGAN, Judge. HOGAN, Judge

text:
    FARMERS ALLIANCE MUTUAL INSURANCE COMPANY, Plaintiff-Respondent, v. Leo J. REED et al., Defendants-Appellants.
    Nos. 9787, 9791.
    Missouri Court of Appeals, Springfield District.
    Nov. 21, 1975.

      James L. Paul, Pineville, Emory Melton, Joe R. Ellis, Cassville, for defendants-appellants.
    Raymond E. Whiteaker, Russell G. Clark, Woolsey, Fisher, Clark, Whiteaker & Sten-ger, Springfield, for plaintiff-respondent.
   FLANIGAN, Judge.

This is an action for a declaratory judgment. The petition of plaintiff-respondent Farmers Alliance Mutual Insurance Company (Farmers) was filed on May 16, 1972, against three defendants: Leo J. Reed (the named insured in a Family Automobile Policy issued by Farmers), Georgiann Hendrix and J. D. Hendrix.

The petition alleged, in substance, the following:

1. On August 19, 1971, a collision occurred between a Datsun operated by defendant J. D. Hendrix, in which his wife, defendant Georgiann Hendrix, was a passenger, and a Pontiac operated by defendant Reed.

2. Part I of the policy issued by Farmers to Reed required Farmers to pay on behalf of Reed all sums which Reed shall become legally obligated to pay as damages because of bodily injury or property damage arising out of the use of the Pontiac and to defend any suit alleging such bodily injury or property damage and asking damages which are payable under the terms of the policy, even if the allegations of the suit are groundless, false, or fraudulent.

3. The policy contains this exclusion: “This policy does not apply under Part I to bodily injury or property damage caused intentionally by or at the direction of the insured.”

4. A controversy exists between Farmers and defendants with respect to rights and liabilities under the policy. The controversy involves the issue of whether or not the injuries and damages being claimed by defendants Georgiann Hendrix and J. D. Hendrix were intentionally caused by Reed within the meaning of the exclusion.

5. On March 9, 1972, Georgiann Hendrix and J. D. Hendrix instituted civil action No. 4704 in the Circuit Court of McDonald County, Missouri, against Leo Reed. In case 4704 Georgiann Hendrix seeks $25,000 for bodily injuries, J. D. Hendrix seeks $5,000 for loss of his wife’s services, and J. D. Hendrix seeks $500 for damage to the Datsun.

6. Farmers’ investigation showed that “[t]he occurrence in question was not, in fact, accidental but intentional in nature.” As a result of such investigation Farmers refused to “accept coverage” and “declined to protect” Reed in case 4704.

7. Case 4704 “was instituted on a theory of negligence . Because of the allegations in said petition it may well be that (Farmers) owes (Reed) a defense to said suit; but if the facts are as claimed by (Farmers) then (Farmers) would owe nothing on any judgment that might possibly be rendered in favor of Georgiann Hendrix and J. D. Hendrix. . . . Because of the policy defenses as claimed in this petition, unless there is a declaration of the various rights and liabilities or absence of same under said policy an irreconcilable conflict of interest arises between (Farmers) and (Reed).”

The prayer requested that the court adjudge whether or not Farmers was obligated to defend Reed in case 4704 and whether or not Farmers was obligated to pay, within the limits of its policy, any judgment which defendants Georgiann Hendrix and J. D. Hendrix might obtain against Reed therein.

By his answer defendant Reed pleaded that the petition in case 4704 was grounded on negligence rather than intentional misconduct, requested a dismissal of Farmers’ petition, and sought no affirmative relief.

The separate answer of Georgiann Hendrix and J. D. Hendrix admitted that on August 19, 1971, a collision occurred between the Datsun occupied by them and the Pontiac driven by Reed, admitted they had filed case 4704, denied the other allegations of the petition, sought no affirmative relief, and requested dismissal of the petition.

At the conclusion of the evidence the trial court, sitting without a jury, found the exclusion to be applicable and decreed that Farmers was not obligated to defend Reed or to pay any judgment which Georgiann Hendrix or J. D. Hendrix might obtain against Reed. From that judgment the three defendants appeal. This court affirms the judgment.

Reed’s brief and the brief of the Hendrix-es advance two points which are, in effect:

1. The trial court erred in entertaining the action for the reason that the remedy of obtaining a declaratory judgment was not available to plaintiff.

2. The trial court erred in exonerating plaintiff for the reason that the evidence adduced was insufficient to support the finding that the exclusion was applicable.

The Missouri Declaratory Judgment Act, §§ 527.010 — 527.140 Y.A.M.S., some of which has been incorporated in Rule 87 Y.A.M.R., was discussed in State v. Terte, 351 Mo. 1089, 176 S.W.2d 25 (1943). There our supreme court pointed out that the Federal Act (now Title 28 U.S.C.A. §§ 2201 — 2202) is sufficiently similar “to make the decisions of the Federal courts persuasive” (Terte, supra, p. 28) in the interpretation of the Missouri Act. The court also stated that relief by declaratory judgment was not intended to displace all existing remedies and that the courts have a wide discretion in administering it. The discretion so exercised must be a sound judicial discretion, based on good reason, and calculated to serve the purpose for which the legislation was enacted, namely to afford relief from uncertainty and insecurity.

Terte was a mandamus proceeding in which the relator, a fire insurance company, sought an order compelling the trial court “to take jurisdiction” of a declaratory judgment action which the relator had filed in that court. The trial court had entered an order staying the proceedings in the declaratory judgment action pending the outcome of a separate action which the insured had brought against the relator to recover on the policy. In declining to interfere, by mandamus, with the trial court’s order staying the proceedings, the supreme court pointed out that a trial court, in exercising discretion to stay relief in a suit for declaratory judgment because of another action pending, may consider public policy and interest, efficiency, convenience, economy, and the good or bad faith of the party bringing the declaratory judgment action. The court stated that the most important factors are:

1. Whether the plaintiff in the suit for declaratory relief is in a position of uncertainty or insecurity;

2. Whether the suit will terminate the uncertainty and insecurity as effectually as the other action; and

3. Whether public policy and interest will be served.

In Terte the court emphasized that the trial court had not refused to take jurisdiction but had refused to exercise it.

Federal authority exists to the effect that here the trial court, as a matter of discretion, could have declined to exercise jurisdiction. United Pacific Insurance Company v. Brown, 240 F.Supp. 223 (E.D.Or.1965); Gulf Insurance Company v. Dooley, 286 F.Supp. 16 (N.D.Ill.1968); Home Indemnity Insurance Company v. Lively, 353 F.Supp. 1191 (W.D.Okl.1972); State Farm Mutual Automobile Ins. v. Moore, 177 F.Supp. 520 (D.Or.1959).

In each of those cases the same or a similar exclusion was involved and a separate action in tort was pending against the insured. In Brown and in Moore the tort action was based on alternative grounds of negligence and wantonness. In Dooley the tort action sought recovery on alternative grounds of negligence and willfulness. In Lively the tort action was grounded only on negligence.

In Brown the federal court held that an actual controversy of justiciable nature existed which the court could determine. The court said: “There is no question but that this Court has jurisdiction to entertain plaintiff’s declaratory action.” But, as a matter of discretion, it refused to exercise jurisdiction and sustained a motion to dismiss the complaint. Moore is to the same effect.

In Dooley the federal court also dismissed the declaratory judgment action and, in so doing, stated that it was clear that the insurance company had a duty to defend its insured. The court did say that “a real and substantial controversy” existed.

In Lively the court said that since the petition in the tort action pleaded only negligence, the insurer had a duty to defend the insured, the exclusion being “presently inapplicable.” However, the court declined to determine, at that time, whether or not the insurer would have a duty to pay the judgment (relying upon the Harbin case mentioned in footnote 2 of this opinion).

A similar result was reached in Employers Fire Ins. Co. v. Beals, 103 R.I. 623, 240 A.2d 397 (1968). There also a declaratory judgment action brought by an insurance company, and based on the same exclusion, was dismissed. After the declaratory judgment action had been brought, a separate action was brought against the insured by the injured person, based on allegations of negligence and willfulness. The dismissal of the action by the trial court was held to be a proper exercise of discretion.

Another factor which might have induced the court to decline to exercise jurisdiction is the principle enunciated in Martin v. Yeoham, 419 S.W.2d 937, 946[3] (Mo.App.1967) that proof of a willful act, in the tort case, “will not justify or support jury submission of the case on a hypothesis that the injury for which recovery is sought was the result of an act of negligence.”

In Nations v. Ramsey, 387 S.W.2d 276, 279 (Mo.App.1965) it is said: “[t]he declaratory judgment act, while it is to be interpreted liberally, is not a general panacea for all real and imaginary legal ills, nor is it a substitute for all existing remedies. It should be used with caution. And except in exceptional circumstances plainly appearing, it is not to be used and applied where an adequate remedy already exists.” That language is quoted with approval in Harris v. State Bank & Trust Co. of Wellston, 484 S.W.2d 177, 178[4] (Mo.1972). See also State Farm Fire & Gas. Co. v. Powell, 529 S.W.2d 666 (Mo.App.1975).

On the other hand there are federal authorities supporting the proposition that the remedy of a declaratory judgment was available to plaintiff. Farm Bureau Mutual Automobile Ins. Co. v. Hammer, 177 F.2d 793 (4th Cir. 1949); Great American Ins. Co. v. Ratliff, 242 F.Supp. 983 (E.D.Ark.1965).

In Hammer it was held that the trial court erred in dismissing a complaint in which an insurer sought a declaratory judgment to the effect that its automobile insurance policy did not apply to the defense of certain state court actions brought against its insured, those actions having been based on negligence. The state court actions had already proceeded to judgment. The insurer relied upon an exclusion based on intentional injury. The court pointed out a conflict between the interests of the insurer and those of the insured. Indeed, the court stated “it was not possible” for the insurer to defend the state court actions and at the same time protect its own interests. “It could not exculpate itself by-showing that the injurious acts of the insured were beyond the scope of the policy, for this showing would establish the liability of the insured to the injured party to an even greater extent than that claimed in the complaints.” The court concluded that the insurance company “is entitled to its day in court to show, if it can, that its policy did not cover the injurious acts which the insured committed.”

In Ratliff an insurer brought a declaratory judgment action, seeking relief from coverage by reason of a similar exclusion. While the declaratory judgment action was pending, the injured person, in a separate action against the insured, obtained a judgment based on negligence. At p. 990 the court said that it thought it clear “that an insurance company has a right to have a claim of nonliability on an automobile policy, such as the claim involved here, litigated in an independent action with the company aligned on one side and the insured and the injured third party, if any, aligned on the other side. And a suit for a declaratory judgment is certainly appropriate for that purpose.” However, the court said that it probably would not have tried the declaratory judgment action until the tort litigation was disposed of.

Peculiarly enough, although both Hammer and Ratliff involved situations where the tort actions had already proceeded to judgment, a leading authority on federal practice states, indeed emphasizes, that declaratory relief is available to the insurer prior to the rendition of the judgment in the suit against the insured.

“There is a distinction between the jurisdiction of a court to grant declaratory relief and the exercise of discretion pursuant to that jurisdiction.” 26 C.J.S. 70 Declaratory Judgments § 11. It seems clear that the conflict in the federal authorities is based on whether, in a given factual situation, the court in its discretion should exercise jurisdiction in the declaratory judgment case. The conflict is not based on any doubt as to the existence of such jurisdiction.

California cases are to the effect that the remedy of a declaratory judgment was available. General Insurance Company of America v. Whitmore, 235 Cal.App.2d 670, 45 Cal.Rptr. 556 (1965); Commercial Insurance Company of Newark, N. J. v. Pressley, 53 Cal.Rptr. 220 (1966).

In Whitmore the insurer brought an action for a declaratory judgment, relying upon an exclusion with respect to intentional acts. A separate tort case against the insured was grounded on negligence. The court held that the remedy was available and that the insurer’s duty to defend the tort case ended upon the obtaining of relief in the declaratory judgment action. The court indicated that the proceeding was not premature and the trial court had erred in dismissing the action.

In Pressley the court, in a similar situation, held that “the remedy of declaratory relief is particularly appropriate” and that opportunity had been afforded, in the declaratory judgment action, to the insured and to the injured person to litigate fully the facts upon which hinged the applicability of the exclusion with respect to intentional injuries. There also the petition in the separate damage suit contained a claim based on negligence. The court stated that the interest of the insurer was “wholly inconsistent” with the interests of its insured.

It is true that in Missouri “ordinarily the insurer’s duty to defend is determined from the policy provisions and the allegations of the petition.” Zipkin v. Freeman, 436 S.W.2d 753, 754 (Mo. banc 1968). See also 7 Am.Jur.2d 494, Automobile Insurance § 162 and annotation in 50 A.L.R.2d 458 (allegations in third person’s action against insured as determining liability insurer’s duty to defend).

Zipkin was a garnishment action brought against the insurer by a successful tort plaintiff to collect a judgment obtained against the insured. The insurer had declined to defend the tort case. The insurer attempted to avoid coverage by claiming that the conduct of its insured did not amount to “professional services” and that coverage was afforded only with respect to same. The court said that the insurer was not entitled to deny coverage on that ground because that issue could have been litigated by the insurer in the damage suit and it had failed to do so. The court mentioned that the evidence in the damage suit showed “that the damage done to Mrs. Zip-kin . . . resulted and was made possible only because there were professional services rendered . . . .” Zipkin at p. 763. However, the court pointed out that after the insurer had declined to defend the tort case “nothing was done about seeking a declaratory judgment or defending under a reservation of rights agreement or notice thereof.” (Emphasis supplied) Zipkin at p. 754. Thus the holding in Zipkin is no bar to what was done here because, in Zipkin, the evidence concerning the coverage issue had in fact been heard, and a judgment had been entered therein. It is unnecessary to determine what the result would be in the case at bar had case 4704 proceeded to judgment before this case was tried.

Before it instituted this declaratory judgment action, plaintiff’s position was not a novel one. A leading authority has pointed out that frequently it is difficult for the insurer to decide whether or not to defend the tort case and that this is particularly so where the insurer desires to show that the claim against the insured is based upon facts excluded from the policy coverage. 7 Am.Jur.2d 493, Automobile Insurance § 161.

The case at bar and case 4704 were both pending in the same court. Nothing in the instant transcript reflects any attempt on the part of the defendants to obtain a stay of these proceedings until case 4704 was tried.

The evidence concerning the coverage issue has now in fact been heard and the issue has been determined. Whether or not the same issue could have been determined in another proceeding (such as an action by the Hendrixes to collect, by garnishment or under § 379.200 V.A.M.S., a judgment they might obtain against Reed in case 4704, or an action by Reed against the insurer for wrongful refusal to defend case 4704 and to protect him from any judgment therein), it seems reasonable to believe that the experienced trial judge, before whom both actions were pending, did not deem the existence of such possible alternative remedies to be an adequate basis for refraining from exercising his declaratory judgment jurisdiction.

The brief of the Hendrixes states that if this appeal fails, they have “lost their case without benefit of a jury trial.” The brief of Reed also states that the facts “should be tried before a jury.” That argument has no weight because none of the defendants requested a jury trial in the declaratory judgment action and, under Rule 69.01(b)(4), by entering into trial before the court without objection, they waived trial by jury.

Rule 87.02 enumerates certain instances in which relief by declaratory judgment may be obtained, but Rule 87.02(d) states: “The foregoing enumeration of instances in which persons may obtain relief by declaratory judgments is illustrative, and anyone may obtain such relief in any instance in which it will terminate a controversy or remove an uncertainty.” (Emphasis supplied)

Here the trial court was confronted with a controversy. That controversy existed between the plaintiff on the one hand and its insured and the tort claimants on the other on the issue of coverage. The insurer was, justifiably, uncertain about the applicability of the exclusion to the facts at bar. All parties to the controversy were before the court, each with an opportunity to present evidence on the coverage issue. The factual dispute has been resolved by the court. If its decision on that point stands, as this opinion later holds, the uncertainty is removed and that controversy has terminated.

In 22 Am.Jur.2d 396 Declaratory Judgments § 41 it is said: “In the case of liability policies, a dispute or controversy between the insurer and its insured as to the fact or extent of liability under the policy to the persons injured as a result of the operation of the insured automobile, including, in most cases, the insurer’s obligation to defend the insured in actions threatened or pending for damages against him, is generally held to present an actual or justiciable controversy within a declaratory judgments act. An actual controversy is usually held to exist between the insurer and the injured party suing the insured, since there is generally a real possibility that the injured party might look to the insurer for payment; and the obtaining of a judgment against the insured is generally held not to be a condition precedent to the existence of an actual controversy involving the liability of the insurer.” See also 20 Appleman, Insurance Law and Practice § 11354, p. 145.

This court holds that the trial court had jurisdiction to hear the case at bar and that the trial court did not abuse its discretion in electing to exercise that jurisdiction. To hold otherwise would be, in effect, to require all of the parties to relitigate the issue of coverage in one or more other proceedings after case 4704 has proceeded to judgment, at least if the Hendrixes prevail therein. No sound reason appears for requiring that duplication of effort and expense.

Defendants’ second point is that the evidence adduced is insufficient to support the finding of the trial court that the facts bring the exclusion into play. In reviewing that contention, in accordance with Rule 73.01, this court must “review the ease upon both the law and the evidence as in suits of an equitable nature” and give due regard to the opportunity of the trial court to have judged the credibility of witnesses. The judgment of the trial court is not to be set aside unless it is “clearly erroneous” even though the quoted term no longer appears in Rule 73.01(3). Tharp v. Oberhellmann, 527 S.W.2d 376, 379[1, 2] (Mo.App.1975), and cases cited in footnote 2 therein. This rule, of course, applies in declaratory judgment actions tried without a jury. Hillyard v. Leonard, 391 S.W.2d 211, 215[1] (Mo.1965). Wes. Cas. & Sur. Co. of Ft. Scott, Kan. v. Wunderlich, 447 S.W.2d 1, 4[2] (Mo.App.1969).

The burden was on plaintiff to prove facts which would make the policy exclusion applicable. Mission Ins. Co. v. Ward, 487 S.W.2d 449[3] (Mo. banc 1972).

Three witnesses testified for the plaintiff and defendant J. D. Hendrix testified on his own behalf. Significantly defendant Reed did not testify.

The evidence discloses:

The incident involving Reed and the Hen-drixes took place on August 19, 1971, on Highway 140 near Bella Vista, Arkansas. Reed was driving the Pontiac and J. D. Hendrix was driving the Datsun. Reed was drunk. One and one-half miles east of the point where the incident culminated, the Pontiac collided with the rear of the Dat-sun. After that collision the Pontiac followed the Datsun “right on his bumper.” Hendrix became frightened and accelerated the Datsun but the Pontiac also accelerated. A second collision occurred between the vehicles and the Pontiac forced the Datsun off the road. After the vehicles came to rest Reed made the statement that the people in the Datsun “were out to get him” and “I just got them first.” It appeared to one of plaintiff’s witnesses that Reed “was trying to hit” the Datsun “because it was a perfect shot.” After the second collision, and when the Datsun tried to re-enter the highway from the shoulder area, “it looked like (Reed) intentionally tried to herd the man back as he came on the road, it looked like he was trying to prevent him from coming on the road.” To the witness it looked like the Pontiac “very purposely hit” the Dat-sun.

Hendrix hailed down one of the witnesses, who came upon the scene immediately, and told the witness “Go get the police, this bastard is crazy. He is trying to kill us.” Reed pounded on the hood of the witness’ car and then grabbed the witness by the shoulder and said he was going to whip the witness. Other cars stopped and Reed “was wanting to whip everybody.”

Hendrix told the witness that Reed had tried to “run us off the road earlier in Missouri.” The speed of the Pontiac, at least at the time of the second collision, was 55 to 60, although the speed limit was 35.

Damage to the Datsun amounted to $300 and Georgiann Hendrix complained of injuries.

In the statement Reed had given to the plaintiff, Reed stated that he was mad and tried to stop the Datsun but the Datsun would not stop “so I ran up beside a couple of times and finally I just cut around kind of in front of him and he ran off” the road. Elsewhere in the statement Reed said “I forced him to stop.”

Exclusions similar to or identical with the exclusion involved here are dealt with in 2 A.L.R.2d 1238 “Liability Insurance: specific exclusion of liability for injury intentionally caused by insured.” There the following language appears at p. 1241: “The courts have generally held that injury or damage is ‘caused intentionally’ within the meaning of an ‘intentional injury exclusion clause’ if the insured has acted with the specific intent to cause harm to a third party, with the result that the insurer will not be relieved of its obligations under a liability policy containing such an exclusion unless the insured has acted with such specific intent. Under this view, it is not sufficient that the insured’s intentional, albeit wrongful, act has resulted in unintended harm to a third person; it is the harm itself that must be intended before the exclusion will apply. There is, however, some authority for the proposition that such a clause will operate to relieve a liability insurer of its duty to indemnify an insured whose intentional act has caused harm to a third person where the nature or character of the act is such that an intent to cause harm is thereby inferred as a matter of law.”

This court holds that the evidence justifies the conclusion that Reed intended that the Pontiac collide with the Datsun, and that he intended to cause damage to that vehicle and injury to its occupants. Accordingly, under either of the foregoing views of the exclusion, the trial court was justified in finding that the exclusion was applicable. See Allstate v. Hisely, 465 F.2d 1243 (10th Cir. 1972); Rankin v. Farmers Elevator Mut. Ins. Co., 393 F.2d 718, 720[1] (10th Cir. 1968).

The judgment is affirmed.

All concur.

HOGAN, J., in separate concurring opinion filed.

HOGAN, Judge

(concurring):

I fully concur in all that is said in the principal opinion except the statement that the trial court’s judgment must be deferred to unless it is “clearly erroneous”. I do not believe we can read the phrase “the judgment shall not be set aside unless clearly erroneous” back into the rule after it has been revised out, presumably deliberately. I realize that the words “clearly erroneous” were considered ambiguous by some judges, but the phrase had a respectable history and a definite purpose, Lundgren v. Freeman, 307 F.2d 104, 113-114[15-17] (9th Cir. 1962), and in providing that the judgment was subject to deference, the drafters of the former rule recognized the futility of attempting to distinguish between “findings of fact” and “conclusions of law”. See S. Weiner, the Civil Nonjury Trial and the Law-Fact Distinction, 55 Cal.L.Rev. 1020, 1021 — 1024 (1967). Moreover, former Rule 73.01(d) recognized the utter impracticality of literal “de novo” findings of fact in bench-tried cases. See United States v. Aluminum Co. of America, 148 F.2d 416, 433[18-21] (2d Cir. 1945). In my view, present Rule 73.01, read literally, leaves us perfectly free to second-guess the trial court on any matter, and will probably encourage appeals in the hope we shall do so. See Morris v. Holland, 529 S.W.2d 948 (Mo.App.1975).

      . Attached as exhibits to the petition in the case at bar were the insurance policy and the petition in case 4704. The latter pleaded negligence on the part of Reed, including excessive speed and failure to keep a lookout.

      . The same conflict of interest was discussed in Harbin v. Assurance Company of America, 308 F.2d 748 (10th Cir. 1962), where a declaratory judgment action was entertained on behalf of an insurer which requested relief based upon an exclusion with respect to injuries “caused intentionally by or at the direction of the insured.” However, in Harbin, the petition in the tort action was based on intentional misconduct. The court held that the insurer was not obligated “at this time” to defend the state court action but that its judgment was not determinative of the insurer’s coverage in the event, when the facts were established, the exclusion proved to be inapplicable.

      . “It cannot be denied that an insurer in the Hammer situation is on the horns of a dilemma, insofar as the action against the insured is concerned; given notice and an opportunity to defend, the insurer is bound by the judgment on the negligence claim, whether or not he defends; and, if he does defend, he cannot contend that the insured was guilty of intentional wrong-doing. But the insurer is not entirely without a remedy; a suit against the insured and the injured claimant for a declaratory judgment of non-coverage, prior to rendition of judgment in the suit against the insured, may be entertained at the discretion of an appropriate court.” Moore’s Federal Practice, 2d Edition, Yol. IB, p. 1557, § 0.411 [6].

      . In the case at bar, as indicated previously, Reed sought no affirmative relief with respect to expenses which he may have incurred to date in defending case 4704. It is unnecessary to determine whether such a request would have had merit.

      . The same text adds: “If under such circumstances the insurer refuses to defend and decides to await the determination of its obligation in a subsequent proceeding against it, it must do so at its peril, and if the insurer guesses wrong, it must bear the consequences, legal or otherwise, of its breach of contract. For this reason, where the insurer is dubious about its liability, it will frequently attempt to enter into a so-called nonwaiver agreement with the insured. Such an agreement provides that the insurer will defend a suit against the insured, but that it disclaims liability and retains its right to later assert the policy breach or noncoverage. Another remedy which may be available to the insurer is to secure an adjudication of nonliability by way of a declaratory judgment. Such a judgment, if available, settles definitely the question of its duty to defend, and generally, questions involving the liability of insurance companies under their policies are proper subjects for declaratory relief.” (Emphasis supplied)

      . See Cook v. McCoy, 118 S.W.2d 1043, 1046[6] (Mo.App.1938); Linenschmidt v. Cont. Cas. Co., 356 Mo. 914, 204 S.W.2d 295 (1947); 18 Couch on Insurance, 2d, § 74:102, p. 313.

      . See Adams v. Manchester Ins. & Ind. Co., 385 S.W.2d 359, 363[3] (Mo.App.1964); Galemore v. Haley, 471 S.W.2d 518, 524[8] (Mo.App.1971); Martinelli v. Sec. Ins. Co. of New Haven, 490 S.W.2d 427, 433[9, 10] (Mo.App.1973).

      . As to the right to trial by jury in a declaratory judgment action, see Rule 87.06 V.A. M.R.; § 527.090 V.A.M.S.; MFA Mutual Insurance Company v. Quinn, 259 S.W.2d 854, 859[4] (Mo.App.1953); State ex rel. U. S. Fire Ins. Co. v. Terte, 351 Mo. 1089, 176 S.W.2d 25, 31 [11] (1943); Durwood v. Dubinsky, 291 S.W.2d 909, 915[5] (Mo.1956); State Farm Fire and Cas. Co. v. Powell, 529 S.W.2d 666 (Mo.App.1975).

      . The propriety of joining the Hendrixes in the declaratory judgment action is supported by the highest judicial authority. Maryland Casualty Company v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826 (1941). Rule 87.04 V.A.M.R. provides in part: “When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings . . .” The non-joinder of the tort claimant, Golub, in Commonwealth Insurance, Inc. v. Arnold, 389 S.W.2d 803 (Mo.1965) was a factor specifically mentioned by the supreme court in affirming the action of the trial court in dismissing a declaratory judgment action. “Golub is not a party to this action and there is no way by which a final determination may be made in this case of the basis of Golub’s claim.” (p. 808).

      .In Commonwealth Ins. Agency, Inc. v. Arnold, cited in footnote 9, the following language appears at p. 807: “In a situation such as this, by far the greater number of actions for declaratory judgment to determine whether or not a particular claim is within the coverage of a policy of insurance are brought by the insurer ... In such case, the fact that no judgment has been obtained against the insured so that the amount, if any, of the insurer’s liability is at the particular stage of the proceedings unknown is no bar to the insured’s (sic) action to disclaim liability, which action may, of course, terminate in a judgment declaring the insurer liable for any loss.”

      . “It is well settled that the failure of a party having knowledge of the facts and circumstances vitally affecting the issues on trial to testify on his own behalf . raises a strong presumption that such testimony would have been unfavorable and damaging to the party who fails to proffer the same.” Bean v. Riddle, 423 S.W.2d 709, 720[9] (Mo.1968).


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. James P. KENNEDY, Defendant-Appellant.
    No. 35948.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 25, 1975.

      Rosecan, Popkin & Chervitz, Stanley J. Goodkin, St. Louis, for defendant-appellant.
    J. Brendan Ryan, Circuit Atty., Thomas W. Shannon, Pros. Atty., Edward Hupert, Asst. Pros. Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant-appellant was convicted in the St. Louis Court of Criminal Corrections of driving while intoxicated in violation of § 564.440 RSMo 1969 and was fined $125. Defendant’s appeal has been submitted on an abbreviated transcript with the following scanty stipulation of facts serving as the total facts presented to us:

“On or about June 6, 1973, Patrolman Francis Stoll of the City of St. Louis Metropolitan Police Department, came upon defendant’s car which was stopped in the outside traffic lane on Highway 40 West near Oakland Avenue. Defendant was not in the driver’s seat but was outside the car. Defendant was arrested without warrant at approximately 7:30 p. m. and was presented with two summonses. One summons, Number U 435264 charged defendant with violating an ordinance of the City of St. Louis 836.010, namely ‘Impeding the Flow of Traffic’. A Complaint and Information were filed against the defendant, returnable in City Court Number One, City of St. Louis, State of Missouri on July 5, 1973. Defendant appeared in said Court, entered a plea of guilty and punishment was assessed as a fine of $10.00 plus court costs. Defendant thereupon paid said fines and court costs and was discharged.
“The second summons, as previously alluded to, Number U 435265, charged defendant with ‘Driving While Intoxicated’ in violation of Mo.R.S. Sec. 564.440, V.A. M.S. Pursuant to said summons, defendant appeared before the Court of Criminal Corrections for the City of St. Louis and moved to dismiss the information charging him with Driving While Intoxicated on grounds that since this charge concerned the same episode and same transaction as was involved in defendant’s prior guilty plea before the City Court, defendant had already been placed in jeopardy in aforesaid City Court, and that to place defendant on trial before the Court of Criminal Corrections constituted double jeopardy in violation of Amendments V and XIV of the United States Constitution. Defendant submitted a motion to dismiss and without a ruling thereon defendant proceeded to trial and was found guilty of Driving While Intoxicated and was fined $125.00 plus costs.
“The only evidence presented at trial other than defendant’s stipulation that he pleaded guilty to the charge of ‘Impeding the Flow of Traffic’ was the testimony of Patrolman Francis Stoll who stated that he came upon defendant’s car which was stopped in the outside traffic lane, on Highway 40 near Oakland Avenue. Patrolman Stoll further testified that defendant was not in the driver’s seat at the time his patrol car arrived at the scene. Instead, defendant was outside his car and not only were his eyes watery but he had some sort of alcoholic beverage on his breath.
“A chemical test was conducted pursuant to R.S.Mo. 564.441 V.A.M.S. to determine the alcoholic content of defendant’s blood. The results of this test were erratic, but said results were not disclosed to defendant until after the trial.”

In our review, we are to determine whether the trial court’s conclusions were properly drawn from the facts stipulated. Surface v. Ranger Insurance Co., 526 S.W.2d 44 (Mo.App.1975).

On appeal, defendant argues that there was no substantial evidence that he was driving an automobile while intoxicated so as to establish a violation of the statute. We are compelled to agree and reverse the conviction. To obtain a conviction for violation of § 564.440, the State must prove beyond a reasonable doubt: (1) that the defendant operated the motor vehicle; and (2) that he was intoxicated while operating the vehicle. State v. Easley, 515 S.W.2d 600, 602 (Mo.App.1974); State v. Dodson, 496 S.W.2d 272 (Mo.App.1973); State v. Chester, 445 S.W.2d 393 (Mo.App.1969). It is palpable from the record before us that the State failed in its proof to establish that defendant was intoxicated while driving a motor vehicle.

We need not determine from the facts above presented whether the defendant was intoxicated at the time he was apprehended. What is critical is that the facts before us are as barren as Ms. Hubbard’s cupboard of any evidence that defendant was operating the vehicle while intoxicated. As pointed out in State v. Dodson, supra it is incumbent upon the State to prove defendant’s intoxication at the time the vehicle was being operated. There is nothing here to establish the time when the defendant may have been operating a motor vehicle. He was outside the car when arrested, and there is nothing to indicate when, if ever, he operated the vehicle. In those cases holding the evidence to be sufficient to establish a defendant’s intoxication although outside the vehicle when arrested, a time interval has been established between the time the defendant had driven the automobile and the time of his arrest. For instance, in State v. Hamaker, 524 S.W.2d 176 (Mo.App.1975), the State was able to show that the defendant, who was intoxicated at the time of his arrest, had operated a motor vehicle approximately 15 minutes previously. So, too, in State v. Bruns, 522 S.W.2d 54 (Mo.App.1975), the defendant was observed operating an automobile and a short time thereafter observed sitting in the parked auto in a drunken condition. In State v. Grove, 204 S.W.2d 757 (Mo.1947), and State v. Chester, supra, it was held that there was sufficient evidence to prove the defendants were intoxicated while driving when it was firmly established that each defendant had operated a vehicle a few minutes prior to the time of arrest and that each defendant was intoxicated at the time of arrest.

In the case before us, there is no evidence indicating when the defendant drove his car to the position where it was subsequently found by a police officer. And even assuming that the State proved that defendant had at one time driven the motor vehicle, there was no evidence showing that the defendant was intoxicated at the time of the operation of the vehicle. Without showing the time span between when the defendant actually drove the auto and the time of arrest, no inferences can be drawn from the fact that an alcoholic beverage was detected on his breath at the time of arrest. The State has not shown, either through direct or circumstantial evidence, that the defendant was intoxicated while operating the vehicle, and the conviction must therefore be reversed. At best, the State has done no more than create a suspicion that defendant had been drinking an alcoholic beverage while operating a motor vehicle, but sufficient proof is lacking to establish that defendant was in fact intoxicated while driving a motor vehicle. See City of Kansas City v. Stamper, 528 S.W.2d 767 (Mo.App.1975).

The State contends that defendant’s plea of guilty to the violation of the St. Louis ordinance of impeding the flow of traffic constitutes a judicial admission of the fact that he was driving at the time he was arrested. The record before us does not contain the ordinance nor is there any indication that an attempt was made to introduce the ordinance into evidence. We do not review a document not offered in evidence nor included in the appeal transcript. Davis v. Long, 521 S.W.2d 7 (Mo.App.1975). Nor do we take judicial notice of the City ordinance. City of St. Louis v. Fernbaucher, 449 S.W.2d 672 (Mo.App.1970), and for the court to take cognizance of the contents of a municipal ordinance it must be introduced into evidence. City of St. Louis v. Long, 395 S.W.2d 481 (Mo.App.1965). Therefore, the city ordinance relating to impeding the flow of traffic and its ramifications are not before us.

The judgment is reversed.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . The original transcript was also submitted to this court to illustrate its inadequacies. Although it is apparent that a reviewing court must take the record as it comes, State ex rel. State Highway Commission v. Galeener, 402 S.W.2d 336 (Mo.1966); Rawlings v. Taylor, 477 S.W.2d 737 (Mo.App.1972), we are not limited to a stipulated transcript but can on our own motion order a full transcript. Rules 81.12(c) and 84.03. But our review of the original transcript reveals no further evidence that would be beneficial to the State, that is, that the defendant was intoxicated while operating a motor vehicle.

      . State v. Bruns, supra, also distinguishes the Dodson case by noting that in Dodson there was no proof defendant was drunk at the time he was operating the car, whereas in the Bruns case there was proof of a time span between the time the defendant was seen driving and the time he was found inebriated.


author: McMILLIAN, Judge.

text:
    Charles F. EHRLE, Plaintiff-Respondent, v. BANK BUILDING & EQUIPMENT CORPORATION OF AMERICA, a corporation, Defendant-Appellant.
    No. 36356.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 25, 1975.

      Armstrong, Teasdale, Kramer & Vaughan, Fred Leicht, Jr., St. Louis, for defendant-appellant.
    Deeba, DeStefano, Sauter & Herd, James J. Sauter, St. Louis, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant, Bank Building and Equipment Corporation of America (Bank Building), appeals from a declaratory judgment and award of damages entered by the St. Louis City Circuit Court in which the court found that Bank Building had wrongfully excluded plaintiff, Charles Ehrle, from participation in its Disability Program. Plaintiff was awarded damages in the sum of $46,091.44, including prejudgment interest. This core issue for us to resolve is whether or not plaintiff’s acceptance of benefits under Bank Building’s Pension Plan precluded his recovery under its Disability Program. We find, as did the trial court, that the Disability Program supplements and complements the company’s pension trust plan and accordingly affirm the judgment of the trial court.

From the evidence the court could have reasonably found that plaintiff, age 63, had been employed by Bank Building for forty-two (42) years and that as a salaried employee he was covered by both the company pension plan and Disability Program. In 1960 plaintiff suffered an acute myocardial infarction and as a result thereof his health progressively declined and affected his work performance. The uncontroverted evidence shows that in July, 1967, the date his physician, Dr. Flavan, advised him to stop work, plaintiff was permanently incapable of engaging in any work or occupation which would be considered reasonable by virtue of his education, training and experience.

Because of plaintiff’s health and his inability to properly supervise his department, the company lost money on two projects. Mr. William Cann, the president of Bank Building and a member of the Board of Directors, and Mr. L. J. Orabka, Chairman of the Board, knowing of plaintiff’s health condition, discussed the monetary losses and management problems and concluded that management was not receiving the proper attention.

Shortly thereafter in May, 1967, plaintiff, at the request of Mr. Orabka, was asked, because of health reasons, to consider an early retirement. Mr. Orabka expressed to plaintiff that his health prevented him from carrying out his duties. After some discussion with his wife and Dr. Flavan, plaintiff personally delivered a letter dated May 29, 1967, to Mr. Orabka. The substance of the letter was that .due to his physical condition he was requesting early retirement effective July 31, 1967. Mr. Orabka informed him as to the monetary amount of the pension he would receive; told him also that he would always be eligible for total disability if Social Security would accept it, and in order for Social Security to accept it, plaintiff would have to have a letter from his doctor. After an inquiry as to whether plaintiff could get such a letter, Mr. Orabka told plaintiff that when you get Social Security approval and the doctor’s letter to come back to see him and there would be no problem. The trial court found that plaintiff considered the above discussion to be his application for benefits under Bank Building’s Disability Program for Salaried and Commissioned Employees — at no time during this conversation did Mr. Orabka request that plaintiff fill out and file a written application for benefits under the Disability Program. In fact, from Mr. Gann’s testimony it is questionable whether the company had any formal application to be used to apply for benefits under the Disability Program.

The minutes of the Board of Director’s meeting on May 25, 1967, show that by reason of ill health, at the request of the Board, plaintiff was retired on the accelerated pension plan pursuant to § 4.02(B). Section 4.02(B) provided, in part, that if the company determines that a member under the Pension Plan is physically, mentally, or otherv/ise incapable of performing his duties after he is sixty (60) years of age and has at least twenty (20) years of service, the member could be given an accelerated retirement. In addition, § 4.02(B) provided a method of computing the monetary amount of the pension, and that the company’s determination of incapacity was final.

On July 31, 1967, under the accelerated retirement provision of the pension trust, plaintiff began to receive $760.25 per month for life with sixty (60) payments guaranteed. On January 1, 1972, the amount of the pension increased by one-third to $1,013.00.

Subsequently plaintiff satisfied the Social Security Administration of his total disability by submitting to it the proper forms from his doctor after the required six (6) month waiting period. On May 27, 1968, the Social Security Board awarded plaintiff disability benefits up to the age of sixty-five (65). Additionally, plaintiff was also awarded back disability payments from August, 1967.

After having obtained the necessary documents from the Social Security Board, pursuant to his earlier meeting with Mr. Orabka, plaintiff took these documents to him to process his disability claim. When they discovered that the documents were incomplete, Mr. Orabka said that he would look into the matter and that plaintiff would hear from him.

On June 10, 1968, plaintiff furnished Mr. Orabka with the missing additional documents. Mr. Orabka responded that the Board had chosen to grant plaintiff an accelerated retirement rather than the early retirement which he had requested; that the company’s Disability Program did not apply to plaintiff and consequently plaintiff’s benefits were limited to the Pension Plan and Social Security.

A brochure distributed to Bank Building’s employees described the purpose of the Disability Program as follows:

“If you are disabled, you may qualify for other company-supported benefits, such as your Bank Building Pension, social security, state disability benefits, or workmen’s compensation.
“The purpose of our Bank Building Disability Program is to guarantee you a steady income that can be determined in advance.” (Emphasis supplied.)

To be eligible for benefits under the Disability Program, one had to be (1) either compensated on a salaried basis or paid on a commission basis with a drawing account; (2) permanently disabled while an employee and by virtue of the disability be rendered incapable of engaging in any work or occupation which would be considered reasonable by virtue of one’s training, education, and experience; and (3) apply for all other benefits to which one may be entitled with the proviso that failure to do so would forfeit all rights under the Disability Program.

Neither plaintiff nor Dr. Flavan was present at the trial of this cause, the latter because he was out of state at the time of trial and the former because he was advised by his physician not to appear. The testimony of both individuals was presented to the court by deposition. Mr. Orabka did not testify and was not present at the trial. In addition to the above recited facts, the following evidence was adduced at trial: (1) The uncontroverted testimony of Dr. Fla-van was to the effect that based on reasonable medical certainty, plaintiff was completely disabled and was incapable of engaging in his occupation at the time of his retirement; (2) Mr. Ehrle testified that he was offered a job similar to his former position by the Bank of St. Louis in November or December of 1967 but he declined to accept the position because of his health; (3) Mr. Cann, president of Bank Building, testified that Mr. Ehrle was present when the Management Committee discussed the purpose of the Disability Program, which was “to establish a degree of payment to employees that were ill and disabled beyond a normal type of salary program.” The beneficiaries of the program were to be employees of the company who were either temporarily disabled for short or long terms, or permanently disabled; (4) The Disability Program was discontinued by Bank Building on April 1, 1969. The program was replaced by a new disability plan which required the payment of insurance premiums for those employees covered by the plan. The parties agreed by stipulation to exclude the new plan from the court’s consideration; (5) On May 1, 1974, Count II was submitted under a stipulation of facts. Plaintiff computed the amount of disability benefits to which he would be entitled if he were found eligible under the defendant’s Disability Program. The amount of benefits through March, 1974, was computed to be $35,490.70, together with prejudgment interest of $10,600.74; (6) Defendant submitted a similar computation of benefits which was considerably less than plaintiff’s computation for the reason that it credited plaintiff’s “full pay” from 1965 through July 31, 1967, as a set-off against the benefits accruing to plaintiff through March, 1974. The amount of benefits thus computed was $7,815.59.

“Count II of cause was argued and sumitted (sic) on the 31st day of May, 1974 on Stipulation of Facts filed with the Court under date of May 1, 1974. Court, being fully advised, orders, adjudges and decrees judgment in favor of the Plaintiff and against the Defendant, Bank Building and Equipment Corporation of America, in the sum of $35,490.70 with interest of $10,600.74 to March 31, 1974 and cost of court.”

On this appeal, Bank Building contends that the trial court erred in entering the declaratory judgment in favor of plaintiff because: (1) Plaintiff’s acceptance of full pay for half-time work for over six (6) months indicated that he had elected a non-disability retirement instead of claiming disability benefits under the Disability Program, thus waiving any rights he may have otherwise asserted under the Disability Program; (2) The Disability Program was applicable only to employees prior to retirement and plaintiff did not retire in reliance on or contingent upon receiving disability benefits; and (3) Bank Building had the right to determine conclusively whether an employee is entitled to benefits under the Disability Program, and the trial court had no basis for substituting its judgment for that of the company in ruling that plaintiff was permanently disabled within the meaning of the disability plan, without the company having made any determination in regard to his physical condition.

Bank Building also contends that the trial court erred in its award of damages under Count II of plaintiff’s petition because: (1) Bank Building had the right to terminate the Disability Program at any time, which it did on April 1, 1969, and there was no basis for allowing a recovery of benefits pursuant to the company’s new disability plan; (2) There was no basis for finding that plaintiff was permanently disabled as of the exact date of his retirement, especially without giving the company credit for full-pay benefits during the period Mr. Ehrle worked part-time; (3) No former employee receives both a full pension and additional payments under the Disability Program, and there is no contractual basis for allowing plaintiff to receive benefits from both plans; and (4) Since the Disability Program was terminated in April, 1969, this was not a case in which liquidated damages could be calculated and therefore, the trial court erred in awarding prejudgment interest on the judgment of damages.

This is a court-tried case. In such a proceeding, we review the cause de novo both upon the law and the evidence, but we must give due deference to the opportunity of the trial court to judge the credibility of witnesses. Rule 73.01(3), V.A.M.R.; Pope v. Pope, 520 S.W.2d 634, 636 (Mo.App.1975). Since most of the evidence in this case, however, was presented in the form of documents and depositions, we note that the rule of deference is of limited application. In re Estate of Wintermann, 492 S.W.2d 763, 767 (Mo.1973) and Pashalian v. Big-4 Chevrolet, 348 S.W.2d 628, 632 (Mo.App.1961). In any event, we shall not set aside the judgment of the trial court unless it is clearly erroneous. R. L. S. v. J. E. S., 522 S.W.2d 5, 6-7 (Mo.App.1975).

Bank Building’s first contention is that by accepting full pay for less than full-time work and by electing a non-disability retirement, plaintiff waived his rights under the Disability Program. “Waiver” is an intentional relinquishment of a known right, on the question of which the intention of the party charged with waiver is controlling and, if not shown by express declarations but implied by conduct, there must be a clear, unequivocal and decisive act of the party showing such purpose, and so consistent with the intention to waive that no other reasonable explanation is possible. Bartleman v. Humphrey, 441 S.W.2d 335, 343 (Mo.1969) and Aetna Cas. and Surety Co. v. Traders National Bank and Trust Co., 514 S.W.2d 860, 865 (Mo.App.1974).

The uncontroverted evidence was that plaintiff’s reduced work time with full pay was “With everyone’s knowledge.” No one at Bank Building told him, nor was there any condition in the Disability Program, that such conduct would preclude his eligibility for disability benefits. Implicit in the trial court’s findings was that plaintiff’s discussion regarding disability benefits with Mr. Orabka was an oral application for benefits under the Disability Program.

Bank Building makes the blanket assumption that “[o]nce [plaintiff] elected to retire on a non-disability basis, and once he accepted the company’s offer of greater pension benefits than he would have automatically been entitled to, he was precluded from subsequently claiming that his alleged disability, for purposes of the income [Disability] program for employees was retroactive.” A careful reading of the provisions of the Pension Trust indicates that plaintiff’s “Accelerated Retirement” was neither elected nor non-disability in nature. Section 4.02(B) of the Pension Trust provides that:

“If the Company determines that a member is physically, mentally, or otherwise incapable of performing his duties after he is age sixty (60) or older and has at least twenty (20) years of credited service, he shall be retired. . . .”
(Emphasis supplied.)

Section 10.03 of the Pension Trust providing for computation and election of the disability benefit provides that:

“[A] disabled employee who qualifies for accelerated retirement shall . . . receive the amount computed ... as though he had been retired by the Company pursuant to section 4.02B.”

These two sections when read together clearly demonstrate (1) that an employee may not “elect” to retire under Section 4.02(B) since such a determination is at the discretion of Bank Building; (2) that § 4.02 is applicable to the retirement of disabled employees since a disabled employee who qualifies, but is not retired by the company under the accelerated retirement provision of § 4.02(B), will nevertheless receive the same benefits as if he had been retired under that section; and (3) Section 4.02 differs from § 10.03 only in regard to the requirement of proof of disability. Section 4.02 does not require proof of an employee’s disability. Rather, it is the company which decides whether the employee is “physically, mentally, or otherwise incapable of performing his duties.” If the company declines to retire an employee under § 4.02(B), the employee may still receive the same benefits as though he were retired under that section if he is at least sixty (60) years old and has twenty (20) years of credited service as required by § 4.02(B) and, pursuant to § 10.02, he is certified to be totally and permanently disabled by two duly licensed physicians.

If the substance of Bank Building’s argument is accepted, a disabled employee, who could otherwise qualify for a disability pension upon proper certification and hence would also be entitled to benefits under the Disability Program, could be arbitrarily denied eligibility under the Disability Program whenever the company chose to retire him under § 4.02(B). We do not believe that the provisions of either the Pension Trust or the Disability Program place such unlimited and capricious discretion in the hands of the company. Consequently, we do not believe that it can be argued that plaintiff elected a non-disability retirement. If Bank Building had not chosen to retire him under § 4.02(B), plaintiff, who was then sixty-three (63) years of age and had over forty (40) years of credited service, could have voluntarily retired and, upon proof of a permanent disability, would have received the same benefits pursuant to § 10.03. The company’s decision to retire plaintiff under § 4.02(B) obviated the need for him to furnish proof of a total disability in accordance with § 10.02. In this regard, Bank Building argues:

“[T]he trial court chose to discount the generous granting of an accelerated pension to Mr. Ehrle, ruling incorrectly that Mr. Ehrle would automatically be adjudicated to be permanently and totally disabled under the pension plan since he subsequently had been ruled disabled under the Social Security Act.”

Section 10.01 of the Pension Plan provides:

“. . . The term ‘total and permanent disability’ . . . shall be deemed to exist if (a) the member is certified in accordance with Section 10.02A as having incurred a total and permanent disability as defined under the Federal Social Security Act. . . .”

In addition, § 10.02A requires that an employee must be certified to be totally and permanently disabled by two duly licensed and practicing physicians, one to be selected by the company and the other to be selected by the employee. If the two physicians fail to agree, a third physician is selected by them, and the determination of any two of the three physicians is final and controlling on the issue of the employee’s disability. The gist of appellant’s argument is that the trial court neglected to consider this section because a determination of disability by the Social Security Administration is not sufficient to constitute “total and permanent disability” within the meaning of the Pension Trust absent a certification pursuant to § 10.02.

Again, we note that the company’s decision to retire plaintiff under § 4.02B rendered unnecessary the requirement that he be certified to be totally and permanently disabled. We have the view that the trial court’s finding that plaintiff “would have qualified for disability benefits under the Pension Plan” if he had not been retired by the company under § 4.02B is merely a reference to the likelihood that Mr. Ehrle would have been certified had not the necessity of certification been obviated by Bank Building’s determination to retire him pursuant to § 4.02B. Even assuming ar-guendo that the company’s characterization of this finding by the trial court is correct, such a finding was not a necessary element of the trial court’s final judgment. The ultimate issue was plaintiff’s eligibility for benefits under the Disability Program, not under the Pension Trust. In any event, it is well-settled that the judgment of the trial court, even if based on an incorrect theory, should be affirmed, if, on the evidence, such a result could properly have been reached, Godsy v. Godsy, 504 S.W.2d 209, 211 (Mo.App.1973), and this rule is equally applicable to the correct result in a declaratory judgment action. Dill v. Poindexter Tile Company, 451 S.W.2d 365, 370 (Mo.App.1970).

In sum, since it is the company and not the employee which “elects” retirement under § 4.02B of the Pension Trust, since plaintiff attempted to apply for disability benefits under the Disability Program with Mr. Orabka prior to his retirement and since there is nothing to preclude eligibility for such benefits because plaintiff worked part-time for full pay, we are unconvinced that plaintiff waived his rights under the Disability Program by receiving pension benefits under § 4.02B. Mr. Ehrle’s conduct was not so consistent with the intention to waive benefits under the Disability Program that no other reasonable explanation was possible. Bartleman v. Humphrey, supra.

Finally, we note that Bank Building neither pleaded nor argued the “waiver” contention in the trial of this cause. Waiver is an affirmative defense which if not pleaded, presented or passed on in the trial court, cannot be presented for the first time on appeal. Gross v. Merchants-Produce Bank, 390 S.W.2d 591, 594 (Mo.App.1965). See also Illinois State Bank of Quincy v. Pedersen, 350 S.W.2d 102, 110 (Mo.App.1961). For all these reasons, we rule this point against Bank Building.

Bank Building next argues that the Disability Program was applicable only to employees prior to retirement. Plaintiff did not retire in reliance on receiving disability benefits and no alleged statements by Mr. Orabka could alter the terms of the Disability Program which was established gratuitously.

The uneontroverted evidence at trial was that plaintiff was permanently disabled at the time of his retirement in July, 1967. His retirement was in fact necessitated by his progressively worsening physical condition. The fact that Mr. Orabka suggested that his early retirement would be on the basis of “health” further strengthens this conclusion. It would be difficult to contend that plaintiff was not entitled to benefits under the Disability Program because he retired after becoming permanently disabled and was thus no longer an “employee” within the meaning of the Disability Program. The evidence further shows that he discussed his eligibility under the Disability Program with Mr. Orabka prior to the effective date of his retirement. Plaintiff considered this discussion to be his application for benefits under the program.

We agree with the company that the Disability Program is a gratuitous private plan which is noncontributory. For such plans to become enforceable contracts, there must be notification to and knowledge of benefits on the part of the employee and consideration or continuance of employment in reliance on the plan. Hinkeldey v. Cities Service Oil Co., 470 S.W.2d 494, 502 (Mo.1971); Molumby v. Shapleigh Hardware Co., 395 S.W.2d 221, 226 (Mo.App.1965). The disability plan became effective on January 1, 1967, several months prior to plaintiff’s retirement. Plaintiff was on the Management Committee which reviewed and adopted the plan. Hence, he was certainly aware of the nature of the plan and its benefits, and we are unwilling to conclude that he did not continue his employment from January 1,1967, until the date of his retirement in reliance on the plan, especially since he was aware from consulting Dr. Flavan that his physical condition was eventually likely to render him unable to perform his duties with Bank Building. The fact that plaintiff discussed disability benefits with Mr. Orabka prior to his retirement is additional evidence of his reliance on the plan. Hence, if plaintiff complied with the terms and conditions of the Disability Program, a binding contract existed. Geiwitz v. Geiwitz, 473 S.W.2d 781, 784-5 (Mo.App.1971) and 56 C.J.S. Master-Servant § 169, p. 828 (1948).

The company argues that there is no basis in logic or fact for construing plaintiff’s conversation with Mr. Orabka as an oral application for benefits under the disability plan. On the contrary, the evidence is entirely consistent with such a finding. At the time plaintiff submitted his letter of resignation, Mr. Orabka told him to obtain a letter from his doctor to the effect that he was disabled, to make an application for Social Security disability benefits, and to “come and see me, because then there will be no problem.” Section 5.02 of the Disability Program requires that an eligible employee must apply for all other benefits to which he may be entitled (e. g., Social Security and the Bank Building Pension Plan) or else forfeit all rights to benefits under the Disability Program. Accordingly, plaintiff followed Mr. Orab-ka’s instructions. Admittedly, the Social Security award was not presented to Mr. Orabka by plaintiff until early June of 1968, but this was because Dr. Flavan was required to wait six (6) months before submitting proof of his disability. Once the Social Security award was processed, it was back-dated effective as of the time of plaintiff’s retirement. When the necessary documents were presented to Mr. Orabka, plaintiff was told that “he was going to have to look into it and . . . that I would hear from him. . . . ”

Subsequently, Mr. Orabka informed Mr. Ehrle that he was ineligible for benefits because the Disability Program was applicable to “disabled employees prior to, but not after, their retirement.”

Bank Building argues that Mr. Orabka never presented plaintiff with any type of written application for the Disability Program, and Mr. Orabka “. . . could not deviate from the requirement of an appropriate application by Mr. Ehrle and a ruling of eligibility under the terms of the disability program.”

It is firmly established that the terms of a plan formulated by an employer in behalf of his employees, even if gratuitously instituted, are to be taken most strongly against the employer. Hinkeldey v. Cities Service Oil Co., supra; and Connell v. United States Steel Corp., 371 F.Supp. 991, 1001 (N.D.Ala.1974); Smith v. Union Carbide Corp., 231 F.Supp. 980, 985 (E.D.Tenn.1964) rev’d on other grounds 350 F.2d 258 (6th Cir. 1965); cases cited in 56 C.J.S. Master-Servant § 169, p. 829 (1948). First, there is no provision in the Disability Program which requires a formal written application. Indeed, Mr. Cann, the president of Bank Building and a member of the Board of Directors, testified that he was not aware if there was an application form for the program. Secondly, the Disability Program does not have a provision requiring mandatory certification of disabled employees as does the Pension Trust. Rather, § 2.01 of the Disability Program provides: “An Employee claiming any right to benefits hereunder must submit to such medical examinations and complete and furnish such forms and reports from time to time as may be requested by the Company. . . ” (Emphasis added.)

We find nothing in the Disability Program which would preclude plaintiff from submitting an oral application for benefits to Mr. Orabka. Mr. Orabka was then the Chief Executive Officer and Chairman of the Board of Bank Building as well as a member of the Executive Committee which had sole jurisdiction over the Disability Program. The uncontroverted evidence was that plaintiff applied for benefits to Mr. Orabka prior to his retirement at a time when he was still an “employee” within the meaning of § 1.05 of the Disability Program and, pursuant to § 5.02, he applied for and received all other benefits to which he was entitled. Mr. Ehrle did not submit to any additional medical examinations or furnish any forms or reports because none were requested by the company. To be sure, the reason for this was that the company determined that he was ineligible for benefits. However, plaintiff testified that he stands ready to fill out any formal application and to submit to a medical examination by any physician which Bank Building may choose. The Disability Program contains no other conditions as a prerequisite to eligibility thereunder.

Although the evidence regarding plaintiff’s application for disability benefits prior to his retirement come entirely from his own testimony, only he and Mr. Orabka were present at the time that this discussion took place. Mr. Orabka was not present at trial, and Bank Building offered no excuse for his absence. The failure of a party to call a witness within his power who has knowledge of facts and circumstances vitally affecting the issues on trial raises a strong presumption that the testimony of such witness would have been unfavorable and damaging to the party who fails to proffer the same. Bean v. Riddle, 423 S.W.2d 709, 720 (Mo.1968) and Spaeth v. Larkin, 325 S.W.2d 767, 772 (Mo.1959).

On the basis of this evidence, we conclude that the trial court could have properly found that (1) plaintiff’s continued employment after January 1, 1967, the effective date of the Disability Program and his compliance with all the requisite conditions of the program constituted a binding contract which was enforceable against Bank Building, notwithstanding that the program was instituted gratuitously; (2) plaintiff applied for benefits under the program prior to his retirement from Bank Building; and (3) in construing the provisions of the Disability Program most strongly against Bank Building, there is nothing in the program which would preclude plaintiff’s oral application for benefits. We find no merit in the company’s arguments to the contrary.

Bank Building next contends that “[u]nder the disability program, the company has the conclusive right to determine whether an employee is entitled to a benefit . and without any allegations, evidence, or findings of bad faith the trial court had no basis for substituting its judgment for that of the company in determining not only that [plaintiff] should receive both disability and pension benefits, but ruling in the first instance that Mr. Ehrle was permanently disabled within the meaning of the disability program, without the company having made any determination whatsoever. . . .”

Section 1.11 of the Disability Program defines permanent disability as:

“Disablement extending beyond a period of twenty-four (24) consecutive months which, except for rehabilitation purposes, renders an Employee incapable of engaging in any work or occupation which would be considered reasonable by virtue of his education, training, and experience.”

Section 2.01 Determination of Disability provides, in part:

“The Company shall have the right to determine conclusively whether an Employee is entitled to a benefit under this program.” (Emphasis added.)

Section 5.01 Administration provides:

“The Executive Committee shall have sole jurisdiction over this program and may delegate to other Company officials such powers, rights, and duties as it may deem advisable.”

In construing similar general language, the courts have held that provisions such as §§ 2.01 and 5.01 of the disability plan do not authorize the fraudulent or arbitrary withholding of payments by the employer, Geiwitz v. Geiwitz, supra, nor do such provisions accord complete and unbridled discretion in the employer. Marsh v. Greyhound Lines, Inc., 488 F.2d 278, 280 (5th Cir. 1974).

The test to be applied in circumstances where the employer has summarily denied an employee’s eligibility under a voluntary plan is “ ‘whether the Trustees have acted arbitrarily, capriciously or in bad faith; that is, is the decision of the Trustees supported by substantial evidence or have they made an erroneous decision on a question of law?’ ” Connell v. United States Steel Corp., supra; Hayes v. Morse, 347 F.Supp. 1081, 1086 (E.D.Mo.1972) and Danti v. Lewis, 114 U.S.App.D.C. 105, 312 F.2d 345, 348 (1962). Applying this test to the instant facts, it is readily apparent that Bank Building’s determination that plaintiff was not an “employee” within the meaning of the Disability Program was unsupported by substantial evidence and was erroneous. It hardly bears repeating that the uncontroverted evidence at trial indicated that plaintiff was an employee at the time that he applied for benefits under the Disability Program. There was no requirement of a written application. The fact that Mr. Ehrle did not supply Mr. Orabka with certain necessary documents until June, 1968, a date subsequent to his retirement, does not affect this conclusion. Bank Building’s characterization of the June, 1968, meeting as a belated attempt by Mr. Ehrle to apply for disability benefits is thus erroneous on a question of law and the trial court properly found that the company’s determination of plaintiff’s ineligibility under the program was without justification.

The more difficult issue presented, however, is whether after the trial court found that plaintiff was eligible, it could then substitute its judgment for that of Bank Building on the question of whether plaintiff was permanently disabled within the meaning of the Disability Program.

The case law in this area is not well developed. The authority which exists states that a trial court should take a very cautious approach in substituting its judgment for that of the employer, where, as here, it appears that the employer has not decided the employee’s claim on its merits. Matthews v. Swift & Co., 465 F.2d 814 (5th Cir.1974) and Boyd v. Fraser, 382 F.Supp. 418 (E.D.Mich.1974).

Before the trial court’s discretion may be substituted for that of the employer, the employee “ ‘has the burden of providing such a clear case of permanent disability that no honest tribunal could reach any other decision and the burden of proving that any other decision is or would be arbitrary, fraudulent, or in bad faith.’ ” Matthews v. Swift & Co., supra, at 821 and Boyd v. Fraser, supra, at 420. The evidence needed to sustain such a burden “ ‘must be more than a mere preponderance, it must be overwhelming.’ ” Menke v. Thompson, 140 F.2d 786, 791 (8th Cir. 1944), quoting Road Improvement Dist. No. 5 of Crittenden County, Ark. v. Roach, 18 F.2d 755, 760 (8th Cir. 1927).

Upon a careful consideration of all the evidence, we conclude that plaintiff has satisfied this heavy burden of proof and that the trial court did not err in finding that he was permanently disabled within the meaning of § 1.11 of the Disability Program which defines permanent disability as a “[disablement . . . which . renders an Employee incapable of engaging in any work or occupation which would be considered reasonable by virtue of his education, training, and experience.”

The uncontroverted evidence at trial indicated that plaintiff offered overwhelming proof of his permanent disability. Dr. Fla-van, an experienced cardiovascular specialist, testified that plaintiff was permanently and totally disabled at the time of his retirement—Mr. Orabka requested that plaintiff retire on the basis of “health.” Thereafter, plaintiff was retired upon the company’s determination under § 4.02B of the Pension Trust that he was “physically, mentally or otherwise incapable of performing his duties.” Subsequently, the Social Security Administration found him permanently disabled and commenced paying benefits to plaintiff retroactive to the date of his retirement. In late 1967, plaintiff was offered a job by the Bank of St. Louis, which was similar to his position with Bank Building, but he declined the offer because of his health. Bank Building offered no evidence that plaintiff was not permanently disabled at the time of his retirement.

Therefore, even though the company had the right to determine conclusively that plaintiff was permanently disabled within the meaning of the Disability Program, we are convinced under all these circumstances that any other decision by it would have been arbitrary. We thus hold that the trial court did not err in substituting its discretion for that of Bank Building on the question of plaintiff’s permanent disability.

Bank Building contends that the trial court erred in calculating the benefits due plaintiff under the Disability Program because it reserved the right to cancel the program at any time and it was canceled effective April 1,1969. When plaintiff continued his employment in reliance on the program and subsequently fulfilled all its requisite conditions, a binding contract came into existence which was enforceable by him against Bank Building. Geiwitz v. Geiwitz, supra, at 784-5. See also Hurd v. Ill. Bell Telephone Co., 234 F.2d 942, 946 (7th Cir.1956). Once an employee has complied with all the conditions for entitlement to benefits from a noncontributory plan, his rights thereto become vested and his employer cannot deprive the employee of his benefits under a provision authorizing the employer to terminate the plan for any reason. Molumby v. Shapleigh Hardware Co., supra, at 227; Annot., Construction of Provision Authorizing Employer to Terminate or Modify Plan, 46 A.L.R.3d 464, 468—70 (1972). Thus we find no merit to this point.

The company next argues that the trial court had no basis for finding that plaintiff was disabled as of the exact date of his voluntary retirement, especially without giving it credit for Mr. Ehrle’s full pay during the period that he worked part-time. We disagree. The evidence clearly showed that plaintiff was permanently disabled at the time of his retirement. There is no requirement in the Disability Program, as Bank Building contends, that benefits are not to be awarded until proof of the disability is made. In any event, we note that it was the company’s responsibility to request proof of disability and its failure to do so cannot impinge on plaintiff’s vested right to benefits. To conclude otherwise, Bank Building could escape liability for benefits under the Disability Program by simply never requesting that applicants of the program furnish proof of their "disabilities.

Similarly, we can perceive of no justifiable reason for crediting plaintiff’s full-pay against the benefits due him under the disability plan. Admittedly, he worked less than full time shortly before his retirement without a salary cut, but this was with “everyone’s knowledge.” The company’s contention in this regard is that if the court had a right to find that Mr. Ehrle was disabled as of the date of his retirement, it was obligated to consider that he was just as disabled during the period in which he worked less than full-time. First, there was no evidence presented that Mr. Ehrle was permanently disabled during this period. On the contrary, although his state of health was admittedly precarious, plaintiff did perform his duties for Bank Building until the date of his retirement. The term “permanent disability” does not contemplate the continued performance of substantially all of the duties of one’s occupation. Stout v. Central Nat. Life Ins. Co., supra. Secondly, if the trial court would have been obligated to find that plaintiff was disabled at some point prior to his retirement, plaintiff would have then been entitled to receive additional benefits under the Disability Program during that period. Hence, plaintiff’s full pay might properly have been deducted from the benefits due him prior to his retirement, but there would certainly be no basis for such a deduction from benefits following his retirement, since he no longer received a salary from Bank Building.

The company’s next contention is that no former employee receives both a full pension and benefits under the Disability Program, and that there is no contractual basis for allowing plaintiff to recover benefits under both plans. We rule this point against the company for two reasons. First, the nature of benefits received by other former employees of Bank Building is totally irrelevant to the disposition of this cause. Second, we glean from this contention that no retiree (“former employee”) has received a pension and then successfully applied for benefits under the Disability Program. This is essentially the same argument raised by Bank Building on the merits of the declaratory judgment. We have already held that the trial court was correct in finding that plaintiff was eligible under the disability plan. There appears to be no reason to further lengthen an already protracted opinion by further discussing this contention.

The company’s final contention is that the trial court erred in awarding pre judgment interest on the amount of damages because “this was not a case in which liquidated damages could be calculated. . .”

An amount is sufficiently liquidated for the purpose of allowing pre judgment interest thereon if the amount is readily ascertainable by computation or by determination according to a recognized standard. Cannon v. Bingman, 383 S.W.2d 169, 173 (Mo.App.1964); Komosa v. Monsanto Chemical Co., 317 S.W.2d 396, 400 (Mo.1958) and 47 C.J.S. Interest § 19b, p. 31 (1946). The amount of benefits due plaintiff was computed according to the terms of the Disability Program itself, and both parties agreed that the calculation of benefits was correct. Bank Building will not now be heard to argue that the amount of damages was not readily ascertainable, especially since that amount was derived from the terms of a program formulated by it.

Bank Building’s argument that plaintiffs claim was unliquidated is premised on the fact that the Disability Program was discontinued after April 1, 1969, and that there was thus “a need for court determination of the potential rights and liabilities of the parties.” If a claim is liquidated, the interposition of a counterclaim, set-off, or defense does not convert the liquidated demand into an unliquidated one or preclude recovery for prejudgment interest even though the counterclaim, set-off or defense places the amount payable in doubt. Burger v. Wood, 446 S.W.2d 436, 444 (Mo.App.1969) and Dobbs, Remedies, 167—168 (1973). Prejudgment interest is the measure of damages for failure to pay money when payment is due, even though the obligor refuses payment because he questions legal liability for all or portions of the claim. Denton Construction Co. v. Missouri State Highway Commission, 454 S.W.2d 44, 59 (Mo.1970), quoting Schmidt v. Morival Farms, 240 S.W.2d 952, 961 (Mo.1951). As Professor McCormick very succinctly put it, “[I]t is the character of the claim and not of the defense that is determinative of the question whether an amount of money sued for is a ‘liquidated sum.’ ” McCormick, Damages 216 (1935). Accordingly, we hold that the trial court properly awarded plaintiff prejudgment interest on the amount of damages recovered.

We have read the entire record, carefully examined all the exhibits, and considered the authorities relied on by both Bank Building and plaintiff. In accordance with what has been said, we are convinced that the judgment of the trial court was not clearly erroneous and must therefore be affirmed.

Judgment affirmed.

SIMEONE, P. J., and GUNN, J., concur.

      . The reason for this is that under Art. IV of the Disability Plan pertaining to computation of benefits, an employee’s benefits are computed at a percentage of his base pay and reduced proportionately by the amount of his “other benefits” as defined by § 1.09.

      . This tends to belie the company’s argument that the initial discussion in May, 1967, was more consistent with the theory that Mr. Orabka “was hinting that a disability pension might be granted, after the six months waiting period.” By June 1968, Mr. Ehrle was already receiving pension benefits. His discussion with Mr. Orabka regarded the processing of his disability claim “in accordance with our agreement.” Mr. Orabka did not dispute that such a prior “agreement” existed but rather, simply stated he would “have to look into it.”

      . The cases cited by Bank Building for the proposition that oral representations cannot alter the purpose of a written plan or program are distinguishable from the facts of the case at bar. In Lee v. Jenkins Bros., 268 F.2d 357 (2d Cir.1959), and Burns v. Lewis-Howe Co., 266 S.W.2d 14 (Mo.App.1954), the alleged oral representations by the employer were directly contrary to the express terms of the plan or agreement in question. See also Schneider v. McKesson & Robbins, Inc., 254 F.2d 827 (2d Cir.1958).

      . This presumption is limited in that no inference may be drawn on account of the nonproduction of witnesses whose evidence is equally available to both parties. Lyons v. Taylor, 333 S.W.2d 346, 357 (Mo.App.1960). However, “available” does not mean accessible for service of compulsory process but depends, inter alia, on the relationship borne by the witness to the particular party as would make it natural to expect him to favor one party against the other. Hence, the general rule is that an employee of one party is not equally available to the opposing party. Bartlett v. Cain, 366 S.W.2d 491 (Mo.App.1963). Mr. Orabka was, of course, an employee of Bank Building at the time that these events took place.

      . Our courts have long held that the term “total and permanent disability” in an insurance policy is not to be given a strict and literal construction, but rather is given a liberal construction. Rose v. Nat. Lead Co., Mo.App., 94 S.W.2d 1047, 1052 (1936). “[It is not necessary] that the insured be absolutely helpless or be inert or bed-ridden or house confined, but it is sufficient if it be shown that the infirmity renders the person unable to perform, in the usual and customary way, substantially all of the material acts of any occupation which his age, training, experience, education and physical condition would fit him for except for the infirmity.” Stout v. Central Nat. Life Ins. Co., 522 S.W.2d 124, 129 (Mo.App.1975).
      Although the Disability Program is not an insurance policy, it is analogous to an insurance contract in that its provisions are construed most strongly against the employer. See Hinkeldey v. Cities Service Oil Co., supra.