author: DIXON, Presiding Judge.

text:
    Stanley L. MORRIS, Administrator in the Estate of Jacqueline M. Smith, Deceased, Plaintiff-Respondent, v. The TRAVELERS INSURANCE COMPANY, Defendant-Appellant.
    No. KCD 27483.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1976.
    Motion for Rehearing and/or Transfer Denied Jan. 31, 1977.

      Gene C. Morris, Robert P. Numrich, Kansas City, for defendant-appellant.
    Rufus Burrus, Independence, for plaintiff-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

Plaintiff recovered a judgment against defendant insurance company on a group life insurance policy issued to the employer of plaintiff’s decedent. Jury was waived. Defendant insurance company has appealed. The single issue presented is that the trial court erred in entering the judgment by creating the coverage under the doctrine of estoppel, contrary to the general rule that coverage cannot be created by estop-pel. The judgment is reversed with directions.

This court is indebted to the trial judge for his detailed findings of fact which permit the preparation of a short statement of the relevant facts.

Plaintiff Stanley L. Morris is the Administrator of the Estate of Jacqueline M. Smith, deceased. Jacqueline M. Smith was the widow of Robert C. Smith and the named beneficiary of any life insurance benefits due from defendant. Robert C. Smith died on January 2, 1964. Smith was in the employment of the Bendix Corporation, being paid on an hourly basis. The last day he actually worked was December 20, 1963. Smith was granted a written leave of absence for personal illness beginning December 26, 1963 and ending December 31, 1963, later extended to January 13, 1964. This was approved in writing by different officials of the company on December 27, 1963, December 30, 1963, and January 2, 1964. December 31, 1963 was the last regular working day for hourly employees of Bendix before January 1, 1964. January 1, 1964 would not have been a work day for Smith. Smith’s hourly rate of pay at the time he last actually worked at Bendix was $3.49 per hour. Although some payroll deductions were made with reference to the last checks received by Smith, there were no deductions shown for insurance. Defendant Travelers Insurance Company had issued a group insurance policy to the Bendix Corporation effective February 7, 1931. The provisions of the policy have been changed, and the coverage provided has been changed at various times since the inception of the coverage. Since 1961 changes in the group coverage for hourly employees of Bendix have been the result of agreements made by Bendix with the unions which represent its employees. Plaintiff introduced into evidence a “Plan of Insurance,” furnished by defendant, setting out the provisions of the revised group insurance policy relating to life insurance benefits for employees of Bendix, effective as of January 1, 1964. This “Plan of Insurance” provided for basic life insurance for those employed on an hourly basis in the amount of $3,000, and for optional additional insurance, based upon hourly rate of pay. The additional optional insurance provided for these employees making $3.40 or over per hour is $7,000.

The “Plan of Insurance” with respect to the effective date of the basic $3,000 insurance contained the following:

“(2) Any Employee who is not actually at work on the date his insurance is to become effective shall not be insured until he actually returns to work.”

With respect to the effective date of the optional additional insurance, an identical provision is stated, as above quoted. Under both the basic and the additional insurance, monthly contributions by the employee are required. The agreement between Bendix and the labor union, which formed the basis for the revised group insurance plan effective January 1, 1964, provided:

“Section 10.
All insurance of employees insured under any existing Group Insurance Plan of the Company prior to the effective date of this Plan, will be terminated on the effective date of this Plan as to employees working on such date, and on the date of return to work for employees not at work on such date . . .”

Under date of January 1, 1964, defendant Travelers Insurance Company issued a “Certificate of Insurance” in the name of Robert C. Smith, employee of Bendix, with Jacqueline M. Smith, wife, as beneficiary. This exhibit was introduced by plaintiff. Plaintiff also introduced certificates issued to Smith under earlier dates, the next most recent one being dated December 1, 1960.

The Certificate of Insurance provides, inter alia:

“The Optional Supplemental Insurance described herein is to be effective only if the Employee makes the required payments to apply toward the premium for such insurance.
“This individual Certificate is furnished in accordance with and subject to the terms of said group policies and is merely evidence of insurance provided under said group policies which insurance is effective only if the Employee is eligible for insurance and becomes and continues insured in accordance with the terms, provisions and conditions of said policies.”

On the back side of the Certificate, the basic life insurance is listed at $3,000 and the schedule of additional insurance, based upon rate of pay, up to $7,000, is given.

As to the optional insurance, it is stated:
“Each Employee is to be classified and the amounts of insurance applicable to him determined on the date such insurance becomes effective and thereafter on the first day of the second calendar month next following the date of each change in rate of pay in accordance with the table below upon the basis of the Employee’s Hourly Rate of Pay, as determined and recorded by the Employer; provided, however, that no change to a class which would provide an increase in amount of insurance shall become effective while the Employee is absent from work. . . . ”

No evidence was offered as to the actual delivery date of the Certificate of Insurance dated January 1, 1964. The effective date of the revised group insurance policy of defendant was January 1, 1964, and employees who were actively at work on December 31, 1963 were considered to be actively at work on January 1, 1964. Smith was not actively at work on December 31, 1963, nor at any time thereafter. Defendant has always acknowledged its obligation to pay the sum of $3,000. Plaintiff, although being offered the sum of $3,000, has always contended and claimed the amount due was $10,000.

The fact statement above recited is without attribution by quotation mark almost verbatim excerpted from the trial judge’s findings of fact.

The trial judge also made conclusions of law. The court found that the certificate of insurance was presumed to have been delivered to Smith January 1 and the insurance company defendant does not dispute that finding. The court further found as follows:

“Defendant, by its issuance of Certificate of Insurance to Smith under date of January 1, 1964 is estopped from denying that said Certificate was in force and effect at the time of the death of Smith on January 2, 1964 and that the new insurance program (providing coverage up to $10,000 was in effect as to Smith; and is estopped from using as a defense that the new insurance was not effective because Smith was not actually at work on December 31, 1963.”

In a short memorandum, the trial judge explicated his conclusion of law. A short quotation from the memorandum will serve to focus upon the narrow issue upon which this appeal turns:

“The only real issue raised in the case is whether the beneficiary is to be denied the $7,000 additional coverage on the grounds that Smith was not actually at work on December 31,1963, the last work day before the new insurance became effective. By the terms of the master policy Smith was not entitled to the new insurance until he returned to work.
However, defendant company did in fact issue to Smith a certificate, in effect placing Smith under the provisions of the new insurance. Prior to January 1, 1964 Smith presumably had in his possession a certificate on which he and his beneficiaries had the right to rely. The new certificate expressly ‘replaces any and all Certificates previously issued for delivery to the Employee.’ On the basis of this new certificate Smith and his beneficiaries had the right to rely on the new coverage provided, and defendant is estopped from denying the coverage as provided under the new group plan. It is to be noted that on the new certificate there is no specific provision indicating it is not effective until Smith should return to work. The provisions that no increase in insurance is to become effective while the Employee is absent from work applies only where there has been a change in the Employee’s class. That is not our situation here.”

The initial argument of defendant is that coverage cannot be created by estoppel. Defendant points- to the trial court’s conclusions of law and asserts that the court has created coverage by estoppel. Cited is Blew v. Conner, 310 S.W.2d 294 (Mo.App.1958), modified, Blew v. Conner, 328 S.W.2d 626 (Mo. banc 1959), which in turn cites 43 Am.Jur.2d Insurance Section 1184, p. 1103 (then 29 Am.Jur. Insurance Section 903) and 45 C.J.S. Insurance § 674a. The court in Blew enunciated the general rule in the following language, 1. c. 303:

“While waiver and estoppel may prevent an insurer from asserting a defense to coverage otherwise provided by an insurance policy our Missouri appellate courts so far as we have been able to ascertain have not yet permitted the use of either waiver or estoppel to establish coverage in the first instance where none existed before.”

Defendant, in support of its position that the rule should be applied to group insurance contracts such as the present one, cites two Texas cases applying the rule to situations where the claimed estoppel arises from a difference between the certificate of insurance furnished and the policy itself. White v. Great American Reserve Insurance Co., 342 S.W.2d 793 (Tex.Civ.App.1961); Boyd v. Travelers Insurance Co., 421 S.W.2d 929 (Tex.Civ.App.1967).

Plaintiff, on the other hand, vigorously contends that the plaintiff, by introducing the certificate and formal proof of death, has made a prima-facie case, relying on Wilson v. Kansas City Life Insurance Co., 233 Mo.App. 1006, 128 S.W.2d 319, 321 (1939), which announces the rule that production of the policy and proofs of death and notice make a prima-facie case.

Thus, the primary contention of the defendant is that the certificate of insurance is not part of the policy. The plaintiff, on the other hand, takes the position it is the policy.

During argument of this case, counsel for defendant in responding to questions, asserted that under the law of Missouri, as well as generally, the certificate was not a part of the policy. This must be the initial point of inquiry for if, in fact, the “certificate” forms no part of the contract and since the master policy excludes coverage, then as counsel for defendant insist, coverage could not be found except upon the basis of an estoppel. If this analysis were correct, the issue of the extension of the doctrine of estoppel to group life insurance policies would have to be met and decided in this case. If on the other hand, the certificate may be considered as a part of the policy, the ease turns on another issue.

As will be later noted, there are many expressions in the cases concerning the role of the certificate in the group insurance contract which on the face of the language used by the courts would support the defendant’s position. Analysis of this language in the light of the holdings of the cases reveals that most such expressions are dictum. An early erroneous classification of group insurance contracts as third party beneficiary contracts gave rise to the notion that the certificate forms no part of the contract.

A review of the authorities so stating and the later authority more carefully analyzing such policies will demonstrate that the attempt to deal with problems of group insurance under the rubric of third party beneficiary contracts has resulted in unnecessary confusion. Included among the authority which has followed the third party beneficiary analysis are 1 Appleman, Insurance Law and Practice §§ 44, 46 (1965 Ed.); 2 Williston, Contracts § 369 (3d Ed.); Comment, 40 So.Cal.L.Rev. 697, 699 (1967). So also the Supreme Court in Boseman v. Connecticut General Life Ins. Co., 301 U.S. 196, 57 S.Ct. 686, 81 L.Ed. 1036 (1937) [decided prior to Erie], in considering whether the law of Texas governed a group policy which was issued by defendant to Gulf Oil Co. in Pennsylvania where the certificate was delivered to Gulf’s employee in Texas held that the law of Pennsylvania governed because the insured employees were not parties to the contract and “[T]he certificate is not a part of the contract of, or necessary to, the insurance” l. c. 203, 57 S.Ct. l. c. 690.

In Boseman, however, despite the cited language, the court rested the reasoning of the case on the fact that the employee had made application to his employer and a contract between the employer and the insurer had been entered into under the law of Pennsylvania. The dictum is no more than makeweight in the case.

The repetition of the language referring to these policies as third party beneficiary contracts and the corollary, that the certificate is not a part of the policy, easily might be understood as settling the issue. Most, if not all, of these cases can be analyzed in other terms as in Boseman, supra, and the notions of third party beneficiary were not essential to the decisions. The textwriters’ comments are, of course, a reflection of the language of the cases. In any event, the issue has not been squarely decided in Missouri.

An early Missouri case stated the rule in Missouri to be that a noncontributory group insurance policy is a third party beneficiary contract for the benefit of the insured employee, the certificate issued to the individual employees being merely a statement that they were included in the policy. Gallagher v. Simmons Hardware Co., 214 Mo. App. 111, 258 S.W. 16 (1924). That case considered the narrow issue of whether the insured employee’s beneficiary had a cause of action against the employer, plaintiff having dismissed as to the insurance company. The statement concerning the certificate is dictum.

This court appears to have departed from the classification of group insurance contracts adopted in Gallagher where the group policy in question was contributory. Butler v. Equitable Life Assurance Soc., 233 Mo.App. 94, 93 S.W.2d 1019 (1936). The following language of the court in Butler indicates that where the employee contributes part of the premium, some kind of a contractual relationship arises between the employee and the insurer:

“The discussion of group insurance has frequently been indulged in by the courts of this state, and in these discussions by this court and other appellate courts of this state, the principles applied to contracts between two or more parties for the benefit of a third party has been very closely adhered to.
As to a class of group insurance contracts being entered into in this state, we conclude there has entered an element that is a departure from the ordinary contract entered into by others for the benefit of a third party. The departure is in this, to wit: These group insurance contracts are being based upon considerations that must be paid by the third party. In other words, the third party to secure the benefits are compelled by the master policy or contract to by their own act accept the provisions of the contract entered into and are bound, by the master contract and by the certificate issued to them, to pay a consideration for benefits inuring to them under the contract.” 93 S.W.2d l. c. 1023.
“As to the particular contract before us, the provisions thereof suggest the idea that the meeting of minds, necessary to a contract, centers around the ideas of better employment conditions on the part of the employer and increased business at less overhead upon the part of the insurance company. In other words, the scope of the contracts contemplates more than a mere contract between parties for the benefit of a third party, in that, the master contract provides, first, for the consent, evidenced by application; and, second, a consideration to be paid by the third party for the benefits provided for in the contract. Logical conclusions as to such a contract, we conclude, lead to the conclusion that when a third party makes application and pays the consideration as expressed in the master policy and the same is accepted by the parties in accordance with the terms of the master contract, that such payment and such acceptance endows the third party with a vested interest.” (93 S.W.2d l. c. 1023-1024).

In Butler, the question was whether the employee was entitled to notice of termination of the policy by her employer. The court held:

“[W]e conclude that as to such a group policy as is involved in this case, wherein the group policy itself imposes burdens upon the insured employee and provides for a consideration to be paid by the employee for the protection and benefits he secures thereunder, then and in such event, such an insured is entitled to notice of cancellation.” 93 S.W.2d l. c. 1025 (emphasis added).

A comparison of the Butler opinion with Corbin’s discussion of third party beneficiaries is enlightening.

“In the case of a contract for the benefit of a third person, the contract right always comes to him as a donation, even though the promised performance may not come as a gift. The ‘right’ is his, therefore, even before he assents. Of course, it is quite possible for two parties to make an offer to a third, whether of novation or otherwise; and there may be cases where it is hard to decide whether the third party was an offeree or a beneficiary. If the two parties clearly expect the third party to assume burdens and make promises, the transaction is an offer that requires acceptance in accordance with the law governing formation of contracts.” 4 Corbin, Contracts § 793, p. 135 (1951 Ed.) (emphasis added).

Despite the clear implications of the language in Butler, Missouri Courts, including this court, have continued to parrot the proposition of Gallagher that group insurance contracts are third party beneficiary contracts for the benefit of the insured employee and the certificate is merely notice to the employee that he is insured under the contract between the employer and the insurance company. Adair v. General American Life Ins. Co., 124 S.W.2d 657 (Mo.App.1939); White v. Prudential Ins. Co. of America, 235 Mo.App. 156, 127 S.W.2d 98 (1939); Brown v. Equitable Life Assurance Soc. of United States, 143 S.W.2d 343 (Mo.App.1940); Williams v. Sun Life Assur. Co. of Canada, 235 Mo.App. 741, 148 S.W.2d 112 (1940); Nick v. Travelers Ins. Co., 238 Mo.App. 1181, 185 S.W.2d 326 (1945), aff’d Nick v. Travelers Ins. Co., 354 Mo. 376, 189 S.W.2d 532 (1945); Straub v. Crown Life Insurance Co., 496 S.W.2d 42 (Mo.App.1973); Burckhardt v. General American Life Insurance Co., 534 S.W.2d 57 (Mo.App.1975). See B. Cox, Group Insurance Contracts for Employees, 38 Texas Law Review 211 (1959), in support of a third party beneficiary interpretation of group insurance contracts.

An alternative approach to the problems arising under group policies is the reasoning which finds there is a direct contractual relationship between the employee and the insured. Butler, supra, is the principal Missouri case which comes close to adopting this construction, although other jurisdictions have gone farther.

In Parks v. Prudential Ins. Co. of America, 103 F.Supp. 493 (E.D.Tenn.1951), aff’d, 6 Cir., 195 F.2d 302, the court held that a change in the terms of the master policy of which plaintiff was not notified by issuance of a new certificate was not effective and the provisions as evidenced by plaintiff’s earlier certificate governed his rights under the group policy. The basis of this holding was the rule in Tennessee “that one holding a beneficial certificate under a group policy, for which he has paid all or a portion of the premium, has a definite contractual relation with the insurance company,” (l. c. 496). In Equitable Life Assur. Soc. of United States v. Wagoner, 269 So.2d 747 (Fla.App.1972), the court held that the effective date of insurance as set out in the certificate controlled where it differed from the effective date in the master policy. “While the authorities are divided on the question, we believe the better view to be the one which holds that under group life insurance policies there is a contract between the insurer and the individual insured, that the contract consists of both the master policy and the certificate of insurance construed together, and that the ambiguities or conflicts between the two must be resolved so as to provide the broadest coverage.” l. c. 748. See also Shea v. Aetna Life Ins. Co., 292 Mass. 575, 198 N.E. 909 (1935); Carruth v. Aetna Life Ins. Co., 157 Ga. 608, 122 S.E. 226 (1924); Van Ostrand v. National Life Assurance Company of Canada, 82 Misc.2d 829, 371 N.Y.S.2d 51 (1975). The language of the Supreme Court of Massachusetts in Shea, supra, clearly expresses the logic of considering the employee a party to the contract:

“The policy originally was a contract between the employer and the company. But it contemplated that by making an application for insurance thereunder an employee might become a party thereto. The plaintiff made such an application by which he applied for insurance in accordance with the terms of the policy, and by these terms his application became a part of the insurance contract. . . . The premium paid by the employer was in part paid by it for the plaintiff and such payment was impliedly ratified by him by authorizing the deduction of monthly payments from his wages as his ‘contribution toward the cost of this insurance.’ In these circumstances the promise of the company to pay insurance benefits on the death or disability of the plaintiff must be regarded as a promise made to him.” (198 N.E. l. c. 911-912)

If an offer of insurance and the promise to insure are viewed as being made by the insurance company to the employee, he should not be viewed as a third party beneficiary since “The fact that the words of promise are directed to him brings him ‘in privity’ and prevents him from being third party or stranger to the contract.” 4 Cor-bin, Contracts § 779, p. 32 (1951 Ed.). Furthermore, the status of the employee as a promisee would preclude a third party beneficiary interpretation even without a contribution by the employee toward premiums. There are two reasons for this. The first is that even in a noncontributory plan, the employee forgoes other employment to receive this benefit which is, in effect, a detriment under ordinary contract principles. Furthermore, the premiums paid by the employer can be viewed as a substitute for salary so that the economic effect of the transaction is the same as if the employee had received the premium amounts in cash and then paid them directly to the insurer. See Lecker v. General American Life Ins. Co., 55 Hawaii 624, 525 P.2d 1114, 1118 (1974), infra; Comment, So.Cal.L.Rev., supra. Secondly, regardless of whether or not the employee pays any consideration for coverage, his status as a promisee will bring him in privity and preclude him from being a third party beneficiary. “It is possible therefore that a party may be the promisee and the one who will be benefited by performance and yet not the one who gave the consideration. Such a promisee is not a ‘third party’ beneficiary; but he is a beneficiary of the party who gave the consideration.” 4 Corbin, Contracts § 779, pp. 31-32 (1951 Ed.).

The reasoning of some of the textwriters and the case law adopting the approach of a direct contractual relationship between the insurer and the employee seems to be sound in principle. Nor does the repeated use of the third party classification in the case law of Missouri require that such a classification be adopted to exclude the “certificate” as an operative document in the insurance arrangement. An examination of the Missouri authority will reveal that despite the use of language reminiscent of third party beneficiary contracts, the holdings of the Missouri cases are in accord with the notion of a direct contractual relation between the insured and the insurer.

This court in Butler, supra, found a contractual relationship between the insurer and employee sufficient to require notice of the cancellation. In Nick v. Travelers Ins. Co., supra, this court again found a contractual relationship sufficient to require notice to a discharged employee when the employer exercised a right under the master plan to terminate the coverage. That holding of this court was affirmed on transfer to the Supreme Court.

In Adair v. General American Life Insurance Co., supra, the master policy provided coverage for loss of a foot and defined such loss as severance at or above the ankle joint. This definition was omitted from the certificate. The court held that the terms of the master policy governed because the certificate “is not a life insurance contract,” and plaintiff can recover only “under the provisions of the group policy, issued to the employer for his benefit.” Despite the language quoted, the court decided the case on the basis of a consideration of both the certificate and the master policy saying:

“We think there is no conflict or contradiction as between the two provisions. There can be no ambiguity, because plaintiff is required, by the terms of the certificate itself, to refer to the group policy for exact information and conditions under which he may recover for the ‘accidental loss of a foot.’ ” 124 S.W.2d at 660.

Additionally, the court indicated the terms of a certificate might govern when in direct conflict with those of the master policy.

In Straub v. Grown Life Insurance Co., supra, the employee’s beneficiary under a group policy sued to recover under two certificates for $10,000 each which were issued to decedent. The second certificate was apparently issued by mistake. The court allowed recovery of only $10,000, merely stating the general rule that group insurance policies are third party beneficiary contracts, and the certificate is not part of the contract. The discussion again centered upon the language of the certificate which was deemed controlling. However, in Burckhardt v. General American Life Insurance Co., supra, that same court, although continuing to assert that a contract of group insurance is a third party beneficiary contract, held that the contract of group insurance may consist of more than the master policy between the employer and the insurer. Reversing the lower court’s dismissal of Count I of plaintiff’s petition, the court refused to hold as a matter of law that the “offering brochure” and enrollment card issued to the employee did not constitute the contract of insurance.

Butler is authority for the proposition that there is a contractual relationship between the insurer and the employee and Burckhardt clearly provides that a group insurance contract is not necessarily limited to the four corners of the master policy. Finally, Adair indicates the beneficiary might recover in circumstances where a real ambiguity between the policy and the certificate would result in a detriment to the insured. This is inferentially a statement of the commonly accepted doctrine that where there is room for construction, the contract will be construed against the insurer who prepared it.

The underlying rationale of the Missouri case law is not at war with the better reasoned cases from other jurisdictions. Some have faced the issue more squarely sometimes on the basis of statutory provisions requiring the issuance of such a certificate (which implies it is part of the contract); others unfettered by early decisions classifying the contracts as third party beneficiary contracts reaching the result on ordinary principles.

In addition to Tennessee and Florida (see Parks v. Prudential Ins. Co. of America, supra; and Equitable Life Assur. Soc. of United States v. Wagoner, supra), Illinois clearly adopts the position that under contributory group policies, there is a contractual relationship between the employee and the group insurer. It follows from this then that the certificates issued to the individual employees constitute part of the contract. Thus, where there is an ambiguity or conflict between the terms of the master policy and the certificate, general rules of construction which require that ambiguities or conflicts must be resolved in favor of the insured are applied.

Thus, in Exstrum v. Union Casualty and Life Insurance Company, 167 Neb. 150, 91 N.W.2d 632 (1958), the Supreme Court of Nebraska, applying Illinois law that the certificate is part of the contract, held that the effective date as set out in the certificate controlled where in conflict with the effective date set out in the master policy because the provision most favorable to the insured must be adopted. See Thieme v. Union Labor Life Insurance Co., 12 Ill.App.2d 110, 138 N.E.2d 857 (1956), where the rule that the certificate is part of the policy is applied to a conflict of laws question. See also the holdings in Lee v. Insurance Co. of North America, 397 F.Supp. 426 (E.D.Tenn.1974); Uptegrove v. Metropolitan Life Insurance Co. of N. Y., 145 Neb. 51, 15 N.W.2d 220 (1944); Aetna Life Ins. Co. v. Wilson, 190 Okl. 363, 123 P.2d 656 (1942).

In Lecker v. General American Life Insurance Co., supra, the master group policy excluded from coverage injuries arising in the course of occupation or employment. This exclusion was not set out in the individual certificates issued the employees. The Supreme Court of Hawaii held that the exclusion could not be enforced because a contrary result would render ineffective the Hawaiian statute which requires that group insurers issue individual certificates summarizing the essential features of coverage. See also Humphrey v. Equitable Life Assurance Society of America, 67 Cal.2d 527, 63 Cal.Rptr. 50, 432 P.2d 746 (1967); Bauer v. Insurance Co. of North America, 351 F.Supp. 873 (E.D.Wis.1972).

Upon the basis of the foregoing, this case cannot be decided as defendant would insist on the basis of the general rule as to creation of coverage by estoppel. Nor can it turn on the oversimplification urged by the plaintiff that the certificate is the policy. Rather, this case as in all the cases reaching the issue of a claim of conflict between the certificate and the policy must be decided under the ordinary principles of contract construction.

At this point, it is necessary to advert again to the proofs in this case. Plaintiff produced a booklet or brochure descriptive of the insurance. At the argument, counsel advised that the booklet had been found in the effects of the deceased. This court has recently held that such an offering or descriptive brochure constitutes a part of the insuring agreement. Crawford v. Mid-America Insurance Co., 488 S.W.2d 255 (Mo.App.1972). This holding is in accord with the recent holding in Burckhardt, supra, by the St. Louis court.

The contract here to be construed is thus the certificate, the plan of insurance and the brochure or booklet all offered in evidence by the plaintiff.

The ambiguity if any as to the effective date of the coverage can only arise from the certificate. As pointed out by the trial court, it does not specifically refer to the necessity for active employment before the coverage becomes effective. The certificate does, however, in an earlier paragraph, clearly state that the coverage is effective only if the employee is eligible and becomes insured.

“This individual Certificate is furnished in accordance with and subject to the terms of said group policies and is merely evidence of insurance provided under said group policies which insurance is effective only if the Employee is eligible for insurance and becomes and continues insured in accordance with the terms, provisions and conditions of said policies.” (emphasis added).

Coupled with that is the express language found in the brochure or booklet as follows:

“WHEN YOU ARE INSURED FOR THE BASIC CONTRIBUTORY AND CONTRIBUTORY OPTIONAL SUPPLEMENTAL INSURANCE
All contributory insurance, for which you are eligible and have enrolled, will become effective on the date you become eligible if you are actually at work on that date.
No evidence of insurability will be required in order to obtain the Basic Contributory and Contributory Optional Supplemental insurance if you return a signed enrollment card within 1 month from the date you are eligible.
It is, therefore, most important that your signed card be returned promptly in order to avoid the possibility of a medical examination that may be required by the Insurance Company and possible refusal of your request for the insurance.
Employees not actually at work on the date their Basic Contributory and Contributory Optional Supplemental insurance would otherwise become effective, will be insured from the date of return to active employment provided that date is not more than one year later.” (emphasis added).

Even if the “master plan of insurance” (which, of course, the beneficiary never saw) is excluded from consideration and construing the certificate and brochure most favorably to the beneficiary, there is no room to find effective coverage on January 1st or 2nd before the death of the beneficiary.

Under the provisions of the certificate set forth above, the intent to place conditions upon the existence of any coverage is manifest. The brochure, in readily understandable language, sets forth the conditions for the commencement of coverage.

Plaintiff urges that since the defendant has consistently agreed that it was obligated to pay $3,000 on the basic coverage that it has admitted the fact of coverage under the new certificate. This argument is based upon the language of the certificate that states that all prior certificates are cancelled. The argument is faulty on a two-fold factual basis, first until the new certificate became effective, it could have no effect in cancelling a prior certificate; second, the collective bargaining agreement mentioned above clearly saved preexisting coverage for employees not actively at work on the effective date of the new coverage.

Corollary to this, the plaintiff urges that the initial letter refusing payment does not raise the issue of a failure of coverage under the master policy by referring specifically to the provision requiring that Smith be actively at work in order to obtain supplemental coverage. Plaintiff for this point relies on cases where a denial of coverage is based on one portion of a policy and subsequently the denial is asserted upon the basis of another separate and distinct theory emanating from a different provision of the policy. See Morris v. Reed, 510 S.W.2d 234 (Mo.App.1974); Kammeyer v. Concordia Telephone Co., 446 S.W.2d 486 (Mo.App.1969); Aetna Casualty & Surety Co. v. Haas, 422 S.W.2d 316 (Mo.1968).

The rationale of these cases is that the plaintiff has relied to his detriment on the assertion of the defense by preparation to meet that issue and that the defendant may not shift the grounds of defense after the fact. No basis exists in this case for the application of these cases. The letter plainly refers to the fact that Smith was not actively at work after January 1st and the defendant has never sought to interpose any different theory to bar the plaintiff’s recovery.

In our review of this court-tried case, we reverse if the trial court’s judgment is based on an erroneous application of the law. Murphy v. Carron, 536 S.W.2d 30 (Mo.1976). And we enter the judgment that the trial court should have entered.

The judgment as entered by the trial court was for the plaintiff in the amount of $10,000 plus interest computed upon the difference between the $10,000 and the $3,000 which the trial court specifically found had been tendered by the defendant. Thus, the judgment of $13,392.67 entered by the trial court includes interest upon the $7,000 additional coverage determined by the trial court’s judgment. The plaintiff did not file a cross appeal raising any issue with respect to the failure of the trial court to award interest upon the $3,000 conceded to be due to the plaintiff, and the plaintiff is, of course, bound by the unappealed finding by the trial court that a tender was made in the amount of $3,000.

The cause is, therefore, reversed and remanded to the trial court with directions to enter a judgment in the amount of $3,000, said judgment to bear interest at the statutory rate from the date of entry until paid. Section 408.040, RSMo 1969.

All concur.

      . It is interesting to note that Butler v. Equitable Life Ins. Soc. (Mo.App.1936), supra, is cited by the court in Parks as standing for the proposition that “[T]he employee is entitled to notice of termination of the group insurance and has a special contract by virtue of his certificate 103 F.Supp. at 497 (emphasis added).

        . Shea was an appeal from a directed verdict for defendant insurer. The court held that plaintiff employee was the proper party either as a party to the contract or as a beneficiary under statutory provision.


source: Caselaw Access Project

author: TURNAGE, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Clarence I. HERMAN et al., Exceptions of Donald F. Willsey, et al., Appellants.
    No. KCD 27559.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1976.
    Motion for Rehearing and/or Transfer Denied Jan. 31, 1977.
    Application to Transfer Denied March 14, 1977.

      John S. Newhouse, J. Samuel Newhouse, Independence, for appellants.
    Bruce A. Ring, Chief Counsel, Missouri State Highway Commission, Earl H. Schrader, Jr., James R. Sandifar, John R. Meharry, II, Asst. Counsel, Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

The State Highway Commission brought suit to acquire 19 acres owned by Donald F. Willsey for right-of-way for 1 — 470. The commissioners awarded Willsey $18,500 and on the trial of his exceptions, a jury awarded Willsey $20,000. This appeal by Willsey follows.

On appeal Willsey claims error in the following respects: (1) Admission of a contract and deed relating to Willsey acquiring a right-of-way to serve 75 acres of his remaining land; (2) Refusal to admit in evidence another contract relating to such right-of-way; (3) Refusal to grant a continuance; (4) Testimony of the State’s expert witness; (5) Admission of testimony as to use of the remaining land at time of trial; and (6) Comments made by the trial court during the trial. Affirmed.

The following drawing will serve as a guide to identify the right-of-way taken and the remaining land belonging to Will-sey together with the tract acquired by Willsey for access to his remaining land.

Tracts 1 and 2 were owned by Willsey prior to the taking. These tracts were separated as shown by the right-of-way for 1 — 470.

The date of taking in this case was January 16, 1965. Tract 2 was acquired by Willsey in January, 1963, and contained about 15 acres. On November 1,1962, Will-sey made a written offer to purchase the 15 acres in Tract 2. This offer contained a statement that Willsey had the right to acquire access at the selling price of $600 per acre. Willsey entered into a formal real estate contract on November 13, 1962, for the purchase of Tract 2. The following provision was contained in such contract:

The sellers further agree that if the proposed new highway leaves the buyers without access from the aforesaid 15 acres to their present 97 acres located to the north, the sellers agree to sell the buyers enough additional footage at $600 an acre to assure a road right-of-way which must be adjacent to proposed 15 acre purchase.

The 97 acres referred to in this agreement was Tract 1. After the taking Will-sey had about 75 acres remaining to the left of the right-of-way in Tract 1 as shown on the above drawing.

On May 4, 1966, Willsey received a warranty deed to Tract 3 for the purpose of providing access from Velie Road to the 75 acres in Tract 1. Tract 3 contains 10.23 acres.

At trial the principal difference between the parties revolved around the question of whether or not the remaining 75 acres in Tract 1 was landlocked. Willsey took the position it was landlocked because the deed by which he acquired Tract 3, which gave him access to the 75 acres, was not executed until May of 1966, or some sixteen months after the date of taking. Willsey produced two real estate experts who testified as to his damages and both estimated damages based on the 75 acres being landlocked, and, therefore, completely worthless. One of Willsey’s experts stated Willsey’s damage was $74,600 and the other stated the damage was $77,102.

The Commission took the position the access to the 75 acres of Tract 1 was contained in the offer to purchase Tract 2 and was carried into the contract to purchase such tract. The Commission contended it was thereby entitled to introduce the deed showing the acquisition of Tract 3 to prove the 75 acres in Tract 1 was not landlocked. Based on the Commission’s theory its expert estimated Willsey’s damage to be $14,275.

Willsey’s first contention on this appeal relates to the claimed error on the part of the trial court in admitting the offer Willsey made to purchase Tract 2, which contained a provision for Willsey to obtain access. However, Willsey is in no position to complain on this appeal concerning the admission of this offer into evidence since it was admitted without objection on his part.

Willsey next complains of the admission in evidence of the deed to Tract 3 on the sole ground the date of this deed is after the date of taking. Willsey contends the valuation of his damage is to be made as of the date of taking and nothing which occurred after that date can be admissible. Here Willsey failed to object to the admission of the offer by which he proposed to purchase Tract 2. This offer showed it was accepted by the owner and contained the right in Willsey to acquire a right of access. Willsey introduced the formal contract by which he agreed to purchase Tract 2 and which set out the right Willsey possessed to acquire a right of access, which materialized in his acquisition of Tract 3. This right to acquire the access existed prior to the date of taking. As soon as the Commission condemned the righRof-way which denied direct access to the 75 acres in Tract 1, Willsey, by his contract, thereby became entitled to acquire a right of access to this 75 acres. Thus the right to acquire the access existed at the date of taking.

It is settled that the “relation of vendor and purchaser exists as soon as the contract for the sale and purchase of land is entered into. Equity regards the purchaser as the owner and the vendor as holding the legal title in trust for him: (citations omitted). This equitable principle may be invoked in actions at law.” Savings Trust Co. of St. Louis v. Skain, 345 Mo. 46, 131 S.W.2d 566, 570[1, 2] (banc 1939).

In this case, Willsey had the conditional right to acquire access to the 75 acres under the contract for the purchase of Tract 2. When the access was cut off to the 75 acres, the condition occurred which made the contract for acquisition of access operative. Willsey then became the purchaser, under this contract, of the right of access. Thus, on the date of taking, Willsey was regarded as the owner of the right of access with the vendor holding title in trust for him. While the contract did not specify the precise legal description of Tract 3, it was nevertheless proper for the jury to be informed the right to acquire the access existed as of the time of the taking and further to be informed of the fact Willsey did acquire this access through the deed to Tract 3. This certainly helped the jury to arrive at a proper verdict as to the amount of damages Willsey would sustain. To submit this case to the jury without informing it of this right of access would be to blindfold the jury to the very fact it needed to arrive at a fair verdict.

Willsey further complains of the refusal of the court to admit in evidence a separate contract which was entered into between Willsey and the vendor of Tract 3 for the purchase of Tract 3. This contract was originally offered when Willsey was on the stand, but at that time Willsey was unable to definitely identify it. Thereafter, Willsey attempted to introduce such contract in rebuttal, but the offer was refused. The trial court is vested with discretion to admit or exclude rebuttal evidence. Schmitt v. Pierce, 344 S.W.2d 120, 132[15] (Mo. banc 1961). There is no abuse of this discretion shown here because all of the information contained in this contract was contained in the contract admitted in evidence for the sale of Tract 2 and the deed to Tract 3.

Willsey complains also of the admission of the testimony of witness Boten who testified for the Commission. This complaint is based upon the fact Boten inspected the property first in 1963 and later in 1971, 1972, and 1973. Willsey claims Bo-ten’s memory was faulty and that his visits were too remote from the date of taking to permit him to have a sound basis for his appraisal. It first should be noted Willsey admitted the qualifications of Mr. Boten as a real estate expert. Beyond that the matter of which Willsey now complains would only go to the weight to be given the witness’s testimony and not its admissibility. If his memory were faulty and if his visits were too remote, these were matters which the jury would be entitled to weigh but which do not disqualify the witness from testifying. State ex rel. State Highway Commission v. Ogle, 402 S.W.2d 605 (Mo.App.1966).

Willsey contends the court erred in admitting testimony as to the fact the remaining land was still vacant at the time of trial as it was on the date of taking. However, Willsey did not raise this contention in his motion for a new trial, and for that reason this matter has not been preserved for review. Rule 79.03; Crystal Tire Company v. Home Service Oil Company, 525 S.W.2d 317, 322[5] (Mo. banc 1975).

Willsey next complains of certain remarks made by the trial court in various rulings the court made and in response to some of the objections made by Willsey. This complaint likewise was not preserved for review by not being included in the motion for new trial. Further, no objection to the court’s remarks were made during the trial. Such objection during the trial is necessary to preserve this matter for review. Morrison v. Thomas, 481 S.W.2d 605, 608[7] (Mo.App.1972).

Finally, Willsey complains of the failure of the court to grant him a continuance in the trial of this case. In this contention Willsey claims the Commission had agreed during the almost ten years from the date of taking until the date of trial the 75 acres would be landlocked, but suddenly changed its position the day before the case was scheduled to go to trial. Willsey contends he was entitled to a continuance because of this change of position.

The transcript does not show Willsey filed a motion for a continuance. The only matters shown concerning a continuance are two stipulations in which the parties first stipulated in November, 1973, the case could be continued until after February 1, 1974, and again in May, 1974, stipulated the case could be continued until after September 15, 1974. On May 17, 1974, the court stated this case had been transferred to Division 16 because it was over three years old. The court stated it would consider the stipulation filed as a motion for continuance and overruled the same. The trial then began without any further motion for continuance and without any objection.

Thus there is nothing to show Will-sey filed any motion for continuance based on surprise in a change of position on the part of the Commission. However, it should be observed that “[a]n agreement by the parties that a cause shall be continued does not operate as a postponement without the sanction of the court, and does not of itself bind the court.” 17 C.J.S. Continuances § 11, p. 385. The granting of a continuance is largely within the discretion of the trial court and every intendment on appeal is in favor of the court’s ruling. Hammack v. White, 464 S.W.2d 520, 523[6, 7] (Mo.App.1971).

Certainly there was no abuse of discretion shown on the part of the trial court in requiring this case to go to trial under the circumstances shown.

Judgment affirmed.

All concur.


text:
    CITY-WIDE ASPHALT CO., INC., Appellant, v. CITY OF INDEPENDENCE, Missouri, et al., Respondents.
    No. KCD 27604.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1976.
    Motion for Rehearing and/or Transfer Denied Jan. 31, 1977.
    Application to Transfer Denied March 14, 1977.

      John S. Newhouse, J. Samuel Newhouse, Independence, for appellant.
    James S. Cottingham, John M. Gibson, James L. Gillham, Independence, for respondents.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

City-Wide Asphalt Company filed suit against the City of Independence, its city manager, and the members of the city council, (1) to obtain a declaratory judgment that City-Wide had a contract with the City to supply all of its hot asphaltic concrete requirements for the year May 1, 1969, to April 30, 1970; (2) for judgment for $40,-766.63 for balance due for asphalt, paver and roller use, and (3) for $154,099.98 for loss of profits on the sale of asphaltic concrete because of the purchase by the City from another supplier. The City filed a counterclaim alleging it had paid City-Wide $333,057.40 for asphaltic concrete improperly because the City’s agreement to purchase such asphalt was made in violation of its own ordinances and of § 432.070, RSMo 1969, and because the City only obligated itself to purchase 5,000 tons of asphaltic concrete and the City, in fact, paid CityWide about $300,000 in excess of the cost of 5,000 tons.

Trial was to the court without a jury and the court entered judgment in favor of the City on City-Wide’s petition and in favor of the City on the City’s counterclaim, and entered judgment against City-Wide for $55,868.25. City-Wide has appealed.

City-Wide asserts the court erred in the following respects: (1) The City was not entitled to recover on its counterclaim; (2) City-Wide was prejudiced by the delay between the date of the trial and the date of the decision; (3) City-Wide had a contract to supply all of the City’s asphaltic concrete for one year; (4) City-Wide is entitled to payment for the balance due on asphalt supplied for patchwork; and (5) City-Wide is entitled to recover for paver with operators and for the use of rollers as extras to the contract it did have. Judgment for the City on City-Wide’s petition affirmed. Judgment for the City on its counterclaim reversed.

At the threshold is a motion by the City to dismiss the appeal or to affirm the judgment because the brief filed by City-Wide fails to comply with rule 84.04, and because City-Wide failed to preserve the matters it attempts to raise on this appeal by presenting the same to the court in a motion for a new trial.

The brief of City-Wide is not in compliance with Rule 84.04. It is unduly lengthy because counsel has failed to frame the very few questions involved into concise points. Instead, most of the points are disjointed and stated in such fashion as to obscure the precise complaint as to the court’s ruling. This brief illustrates one of the biggest problems appellate courts face, i.e., to determine the exact point raised. Counsel will be well advised to take the time necessary to analyze each case to distill the few problems generally involved so that these may be concisely stated. Rule 84.04(d) requires this, and when it is properly done it greatly expedites the disposition of the appeal.

The statement of facts in this brief also fails to comply with the rules. Rule 84.-04(c) requires a fair and concise statement of facts. As is the case with the points relied on, compliance with this rule facilitates the handling of an appeal.

Despite the failure of this brief to comply with the rules, its deficiency is not so great as to warrant the drastic remedy of dismissal. However, counsel should expect the courts to exact compliance with the rules with increasing vigor as the ease loads mount.

City-Wide has attempted to raise many errors which will not be noticed because of the failure to properly raise them, and because the points heretofore set out fairly raise the viable points which dispose of the controversy between these parties.

The City contends City-Wide was required to file a motion for a new trial in this court tried case in order to preserve any of its points for review. Although there may be statements in some of the cases to the contrary, the Supreme Court has held there is no requirement to file a motion for a new trial in a court tried case. March v. Gerstenschlager, 436 S.W.2d 6 (Mo.1969). See also Hyde, Appellate Review of Cases Tried By the Court Without a Jury, Journal of the Missouri Bar, Vol. 26, No. 2 (Feb. 1970), and Rule 73.01 effective January 1, 1975.

The trial court entered extensive findings of fact and conclusions of law which have proved to be quite helpful. The facts as found by the trial court, and which find substantial support in the evidence, are as follows: The City is a constitutional charter city and City-Wide is a Missouri corporation. In early 1969, the City advertised for bids and then circulated to various companies a “request for quotation” for the City’s requirement of hot mix asphaltic concrete for a period of one year with a total requirement estimated at 5,000 tons. The asphalt was to be f.o.b. the plant of the supplier.

The asphalt to be obtained under this request was stated to be for street patching, repair materials, and for the use of the park department and for miscellaneous city use.

Pursuant to this request, City-Wide submitted a bid of $6.25 a ton. At a regular meeting of the City Council, a journal entry was made in which it was stated “Council approval is requested to purchase our requirement of hot mix asphalt for the period of one year from the City-Wide Asphalt Company at a cost of $6.25 per ton.” The entry showed this motion passed with Councilman Roberts not voting.

The City purchasing agent notified CityWide of the acceptance of this bid and thereafter between May 1, 1969, and August 1, 1969, the City purchased 5,047.70 tons of asphalt from City-Wide pursuant to such council action. The court found none of the asphalt supplied under this arrangement was intended by either the City or City-Wide to include asphalt to be supplied to the City for a comprehensive overlay program on the city streets.

Subsequent to the City’s notification to City-Wide that its bid for the estimated 5,000 tons of asphalt had been accepted, the City advertised for bids for “the furnishing, placing and finishing of 16,250 tons of as-phaltic concrete surface mix for the purpose of resurfacing certain streets in District 3 of the City.” District 3 referred to council-manic district 3 of the City. Similar invitations for bids were made for each of the other councilmanic districts of the City. City-Wide submitted a bid to supply the asphalt for District 3 only. Other bids were received for all of the districts.

After the City had opened the bids for all of the districts, and prior to the Memorial Day weekend in 1969, the City public works director conceived a plan for the City to use its own work force to overlay its streets. The public works director made an agreement with City-Wide for City-Wide to supply asphaltic concrete to the job site for a pilot project on two miles of the City’s streets. This plan was designed to determine if the overlay program could be conducted at less cost to the City by using city labor with the asphalt delivered to the site by an outside supplier. Subsequent to this pilot project, the city council passed a motion to “authorize the city manager to move immediately to rent a Barber-Green paver and operator to contract with the low bidder on asphaltic material at $6.25 per ton and to rent the ten ton roller and whatever is deemed necessary to fix the streets at once.”

The city council again met two weeks later and voted to purchase hot mix asphalt from City-Wide on a delivered basis of $6.65 per ton. No bidding procedures were conducted prior to the passage of this motion. Thereafter, City-Wide supplied asphalt to the City under both the arrangement for asphalt to be delivered f.o.b. City-Wide’s plant at $6.25 a ton and for asphalt f.o.b. the job site for the overlay program at $6.65 a ton. City-Wide also furnished a paver with operator at $125 per day and rollers at a cost of $35 per day each for the overlay program.

No contract was entered into between the City and City-Wide for the overlay program. The public works department would request City-Wide to supply a certain amount of asphalt at a certain point and would thereafter send City-Wide a purchase order. City-Wide then sent an invoice to the City for the amount of asphalt supplied together with the cost of the paver and rollers.

The above arrangement existed until August 1, 1969, when a City employee discovered the City was paying for asphalt without a contract and without bids having been taken. Up to that time City-Wide had furnished 49,325.03 tons of asphalt. After terminating the purchase of asphalt from CityWide, the City contracted with another asphalt supplier for its asphalt requirements on the overlay program.

The plant operated by City-Wide in which it manufactured asphaltic concrete is located on land owned by Paul Roberts, who was a member of the city council between May 1, and August 1,1969. Russell Buehler, the principal owner of City-Wide, stated his company did not pay Mr. Roberts any rent, but purchased rock from Mr. Roberts. He stated this was the inducement which led Roberts to allow City-Wide to occupy his land rent free. Mr. Buehler further testified he purchased rock from other companies for the requirements needed to supply the City. He did not purchase any rock from Mr. Roberts to fill any City order.

In its conclusions of law the court found: “That it would not be equitable to allow the City to recover the entire cost of the money paid for asphalt and pavers as clear and convincing proof of a fraud was not proved; however, due to the relationships between plaintiff’s agents and employees and certain of defendant’s agents and employees there was sufficient evidence to prove an indicia of collusion that would make it improper for plaintiff to retain any profit gain under the illegal arrangements referenced above.”

City-Wide first questions the judgment against it for the profit on the 43,308.72 tons sold to the City for the overlay program. City-Wide points out the court did not find any fraud had been practiced upon the City, but found only “an indicia of collusion.”

The review in this case is under the standard set out in Murphy v. Carron, 536 S.W.2d 30, 32[1-2] (Mo.banc 1976).

The earliest case in Missouri which considered the right of a public body to recover money paid for material furnished and work performed was Sparks v. Jasper County, 213 Mo. 218, 112 S.W. 265 (banc 1908). In that case Sparks sought to recover balances due for the construction of three bridges. The County filed a counterclaim seeking to recover money previously paid for bridges constructed by Sparks in previous years. The court pointed out the County did not contend the bridges, were not constructed according to the terms of the contract, or they were not worth the money paid, or that the County refused to receive the bridges. The court stated the contracts had been fully performed on both sides and the bridges were well built and reasonably worth the money paid for them. Further, the bridges were accepted by the County and had constantly been used by the public with no offer to return them. The court then stated at 112 S.W. 269, “[u]nder those circumstances, conceding for argument’s sake the contracts were illegal in their inception, yet it would be unjust and inequitable to permit the county to retain the bridges and at the same time recover back the money paid therefor. That principle of equity should apply here which requires persons who seek equity to do equity before their prayer will be heard. . The law is that where there has been a complete performance of the contract on both sides, and it is fair and reasonable in fact, there can be no recovery of the consideration by the municipal corporation where it retains and enjoys the benefits of the contract, and where it cannot or will not restore the property acquired by the contract, even though the contract be one which the law denounces as illegal and which could not be enforced on that account.” The court in Sparks made an exhaustive review of the law on that subject to buttress its conclusion there could be no recovery by the County. Sparks has been followed in Polk Tp., Sullivan County v. Spencer, 364 Mo. 97, 259 S.W.2d 804 (1953) and Bride v. City of Slater, 263 S.W.2d 22 (Mo.1953). In both Bride and Polk the court found the contract between the public body and the supplier was invalid because the requirements of law had not been met.

The cases in which a public body has been allowed to recover money paid to a contractor involved contracts which were beyond the power of the corporation to make. See County of St. Francois v. Brookshire, 302 S.W.2d 1 (Mo.1957) and 140 A.L.R. 583. Further, the courts have indicated evidence of bad faith, fraud or collusion would also form a basis for recovery.

In this case the City contends the purchase of asphalt for the overlay program was illegal because not made in conformity with § 432.070 which requires a contract to be within the scope of the powers of the public body and in writing and upon a consideration wholly to be performed subsequent to the making of the contract and to be subscribed by the parties or their agents authorized by law and in writing. There is no doubt the purchase of asphalt for the overlay program was in violation of this section. However, the purchase of asphalt was within the power of the City.

The City did not plead or prove any fraud in connection with this contract. The only evidence of fraud or collusion on which the City relies is the occupation of some of Councilman Roberts’ land by City-Wide, the fact Buehler was at one time employed by the City, and the friendship existing between Buehler, Councilman Roberts and Allen Young, the City’s public works director. There was no evidence of any improper action. There was nothing to indicate Mr. Roberts asserted any influence on the City to purchase asphalt from City-Wide. The only evidence concerning any action by Roberts in connection with such purchase was the notation in the minutes of the city council meeting when City-Wide’s first bid was accepted which noted Mr. Roberts abstained from voting on such motion.

Nor was there any evidence of any defect in the asphaltic concrete supplied by CityWide or that the price charged was unreasonable. In fact, the evidence would indicate the City obtained asphalt from CityWide at a lower cost than it paid the supplier who succeeded City-Wide in selling as-phaltic concrete to the City.

Likewise the City makes no contention the purchase of asphaltic concrete was without its powers. In the final analysis the only basis upon which the City makes its claim to recover any money from CityWide is the friendship which existed between Buehler, Roberts and Young, and the opportunity for wrongdoing. Absent any proof of fraud, and absent any evidence the price charged by City-Wide was unreasonable or that the material sold by it to the City was of inferior quality, there is no basis upon which the City is entitled to recover any amount paid to City-Wide for asphalt previously supplied.

Furthermore, the City obviously could not tender the asphalt delivered and placed on the streets. This was a further requirement to the City obtaining recovery as held in Sparks.

It is significant the court did not find evidence of fraud, collusion or unfair dealing. The finding of the indicia of collusion only indicates an indication of collusion. The indication or possibility of collusion is not sufficient. The evidence must support a finding of actual collusion or fraud.

The court also penalized City-Wide only for its profit. No authority has been cited or found which supports such action. Under the cases it would seem the City was entitled to all or none of the money paid City-Wide. It follows the judgment for the City on its counterclaim is not supported by substantial evidence and must be set aside.

City-Wide next complains of the delay of the trial judge in making a decision in this case. The judgment, findings of fact and conclusions of law were entered about sixteen months after the evidence was heard. The trial judge acknowledged this was an undesirable length of time. City-Wide contends it was prejudiced by this delay but does not demonstrate in what way except by passage of time. It states it is entitled to a new trial on this ground alone.

Generally, there would be no occasion to remand a court tried case for a new trial. Under Rule 84.04 the appellate court simply enters such judgment as the trial court should have entered. Further, CityWide has not demonstrated any prejudice as a result of the delay.

While delay is one of the big targets of court criticism, in the circumstances of this case no prejudice is shown and no ground for relief is asserted. 46 Am.Jur.2d, Judgments, § 60, p. 355.

City-Wide further contends the language contained in the request for quotation and the city council motion was broad enough to give rise to a contract by which City-Wide acquired the right to supply all of the as-phaltic concrete which the City would use for the year May 1, 1969, to April 30, 1970. Under this theory, City-Wide claimed the profit it would have made had it sold all of the asphalt the City actually purchased during the balance of the year after the City ceased purchasing from City-Wide. The court found, based upon substantial evidence, that the request for quotation to which City-Wide originally responded was issued for the procurement of street patching, repair materials and for use by the park department in miscellaneous city requirements. There was nothing to indicate at that time the City was requesting bids for the requirements of the street overlay program. This is bolstered by the fact the City actually advertised for and received bids for the overlay program. In fact, CityWide submitted a bid for the overlay program for one of the four districts established in the City.

Although all bids on the overlay program were rejected, the evidence is clear the City and City-Wide considered the overlay program to be completely separate and apart from the so called patch program under which City-Wide was furnishing asphalt f.o.b. at its plant. There was nothing in the conduct of either the City or City-Wide to indicate either party considered the overlay program to be included in the original bid that City-Wide submitted at $6.25 per ton. In fact, the price City-Wide charged for the overlay program was $6.65 a ton delivered at the job site and City-Wide was contending it was entitled in fact to $6.75 per ton because of a mistake the city manager made in transmitting City-Wide’s proposal to the city council. Thus, the parties themselves did not construe any agreement existing between them prior to the beginning of the overlay program to include the asphalt supply for that project.

“The construction that the parties place upon a contract or an agreement as evidenced by the acts and conduct is strong evidence of the real intention of the parties.” Wilkinson v. Tarwater, 393 S.W.2d 538, 543[7] (Mo.1965). In this case the acts of the parties show beyond doubt they did not consider the City to be bound to purchase all of its asphalt from City-Wide. This, together with the other evidence in the case, shows there was no agreement between the parties for City-Wide to supply all of the City’s asphalt.

City-Wide contends the court erred in failing to find City-Wide was entitled to payment for certain purchase orders for asphalt which City-Wide states showed the asphalt was for the patch program. In all of the purchase orders involved, except one, the invoice submitted by City-Wide revealed a drayage charge was included which indicated the asphalt had been delivered to the job site. This was in contrast to the asphalt supplied under the patch program which was delivered to the City at City-Wide’s plant and for which City-Wide did not charge any drayage fee. The Court was fully justified under the evidence in finding these purchase orders were for asphalt delivered to the overlay program. Because there was a complete failure to observe the requirements of § 432.070 for the purchase of asphalt for the overlay program, the court properly refused to require the City to pay for these invoices and purchase orders. The only purchase order which did not show a drayage charge was paid except for $131.75. However, CityWide failed to show which program this invoice fell under. The court was correct in refusing to award City-Wide a judgment for the purchase orders in question.

City-Wide also contends the court erred in refusing to enter judgment for the cost of furnishing a paver with operator and for the use of rollers. The paver and rollers were used on the overlay program. As noted, there was no contract whatever for the overlay program and likewise there was no contract between the City and City-Wide for the supply of pavers, operators and rollers. For that reason, City-Wide was not entitled to a judgment for these items. § 432.070; Needles v. Kansas City, 371 S.W.2d 300 (Mo.1963).

The judgment for the City on City-Wide’s petition is affirmed. The judgment for the City on its counterclaim is reversed. Accordingly, the costs on this appeal should be equally divided between the parties. Rule 77.16, Missouri Cafeteria v. McVey, 362 Mo. 583, 242 S.W.2d 549 (1951).

All concur.


text:
    RUCKMAN AND HANSEN, INC., an Indiana Corporation, Plaintiff-Respondent, v. STATE HIGHWAY COMMISSION of Missouri, Defendant-Appellant.
    No. KCD 27875.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1976.
    Motion for Rehearing and/or Transfer Denied Jan. 31, 1977.
    Application to Transfer Denied March 14, 1977.

      Bruce A. Ring, Alfred Kent Morían, Curtis F. Thompson, Jefferson City, for defendant-appellant.
    John W. Inglish, Michael P. Riley, Carson, Inglish, Monaco & Coil, Jefferson City, Gunn & Gunn, St. Louis, for plaintiff-respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Ruckman and Hansen, Inc., brought suit against the State Highway Commission for breach of contract. Trial to the court without a jury resulted in a judgment in favor of Ruckman for $904,263.07, plus interest of $434,046.27, or a total of $1,338,309.34.

On this appeal the Commission raises a number of objections which will be treated in sequence. The judgment is modified and as modified, affirmed.

Ruckman was awarded a contract by the Commission for the construction of the concrete deck and incidental hand rail and conduit system for lighting and signs on the Chain of Rocks Bridge over the Mississippi River which carries Interstate 270. The bridge was a dual structure with each structure being 5,411 feet in length. The bridge deck, or driving surface, was supported by piers, girders and beams which were constructed by other contractors. The driving surface was shown on the plans to gradually widen for the east 650 feet in order to accommodate acceleration and deceleration lanes for an interchange at that location. From a point 650 feet east of the west end of the bridge, the deck was to be a constant 30 feet in width.

The plans upon which Ruckman based its bid and which became a part of the contract between Ruckman and the Commission showed the bottom of the deck to be arched or haunched at certain points above the tops of the beams and girders which supported the deck. A haunch is created by constructing the forming for the bottom of the deck in such a manner that the bottom of the deck is elevated above the tops of the beams or girders. A haunch can be fixed or variable in nature. A fixed haunch is one which is of a single dimension along the entire length of the beam or girder and a variable is one which varies along the length of the beam or girder.

The plans also called for reinforcing steel bars to be placed in the concrete of the deck, curbs and parapet walls. There was a median barrier separating the east and westbound lanes which also contained steel bars. Some of the bars to be used in the curbs, walls and median were to be bent into a rectangular shape. The plans specified the dimensions of these bars. In the case of straight bars, the specifications allowed a variation of one inch plus or minus from that specified. In the case of bent bars, a variation of one-half inch more or less was allowed from that stated in the specifications.

Ruckman produced substantial evidence to show that the girders and beams upon which the deck was to be constructed were not constructed as shown by the plans upon which it had based its bid. Further, the Commission required Ruckman to change from a fixed to a variable haunch in constructing the deck. Mr. Ruckman, president of Ruckman, testified his company’s bid was based on the plans which called for a fixed haunch throughout the length of the bridge except for the east 650 feet. Ruckman further testified the change from the fixed to a variable haunch caused a greater amount of labor and material used in making forms. The difference arose from the fact Ruckman had bid the job based on reusing the forms once they had been constructed to the dimensions of the fixed haunch. When the variable haunch was required, then it became necessary for the forms to be torn up and new forms constructed about every 20 feet of the length which had been shown on the plans to be a fixed haunch.

The contract set out a procedure known as a force account by which Ruckman was to be compensated for extra work. Ruck-man testified the actual increase in his cost because of the change from a fixed to a variable haunch was $690,455.81. Calculated under the force account method, he testified this extra cost amounted to $601,-686.36.

Ruckman further testified the steel bars were ordered from his supplier based on the variations allowed by the specifications in the contract. He further testified the bars as delivered met the specifications with the allowable variations. However, it soon became apparent when Ruckman began work that only bars which fit the exact dimensions specified with no variation could be used. This meant practically all bars had to be cut or rebent in order to make all of them meet the exact specifications with no variation. The Commission also produced evidence to show that inspectors on the job rigorously enforced all of the clearance measurements called for in the plans. Ruckman’s evidence showed these clearance requirements could not be met by using the steel bars without allowable variations. Only bars meeting the exact measurement would allow for the specified clearance distances.

Ruckman stated his actual extra cost involved in cutting and reshaping the steel bars to make all of them conform to the exact dimensions with no variation was $264,281.30. This amount calculated under the force account method was $243,261.07. The court arrived at the amount of the judgment by taking the total of $844,947.43 as the total of the concrete and steel extra expense. From this the court deducted $5,846.00 paid by the Commission for extra expense, $3,181.68 which Ruckman had claimed for cleaning steel rods, $61.72 which Ruckman had claimed for storm damage, and $594.96 which Ruckman had claimed for flood clean up. After deducting these amounts, the total awarded to Ruckman was $835,263.07. To this the court added $69,000.00 which the Commission had charged against Ruckman for delay in completion of the project. The contract provided a forfeiture by Ruckman of $250.00 for each day completion was delayed beyond the specified date. Adding the $69,000.00 made the total of $904,263.07 which the court awarded to Ruckman. Interest for eight years was added to this amount to make the total judgment of $1,338,309.34.

The Commission lists in its brief eleven points. Of these, three relate to a complaint concerning the admission of a certain exhibit and evidence over its objection and a failure to admit testimony. In a court tried case, “ ‘the appellate court considers such of the evidence as it deems admissible, and excludes from consideration evidence improperly admitted.’ ” Butcher v. McClintock, 373 S.W.2d 917, 922 (Mo.1963); Hunt v. Easley, 495 S.W.2d 703, 707[1] (Mo.App.1973). The challenged evidence related to a letter from the Commission’s engineering firm prior to bids being advertised, and to the admission of a copy of Ruckman’s original bid sheet. The excluded evidence related to testimony showing Ruckman’s employees were not properly supervised.

Without deciding whether or not the evidence of which complaint is made was admissible or not, this court has concluded the judgment is supported by substantial evidence without considering any of the challenged evidence. Under Murphy v. Carron, 536 S.W.2d 30, 32[1, 2] (Mo. banc 1976) the judgment must be affirmed unless there is no substantial evidence to support it or unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. The judgment in this case is supported by substantial evidence and is not against the weight of the evidence and does not erroneously declare or apply the law, with the exceptions hereinafter noted.

The Commission complains the judgment is excessive because it is based in part upon delay to Ruckman being able to commence work and in part upon Ruckman having to obtain an easement for access to the east end of the bridge. There is no dispute Ruckman was not able to commence its part of the work until September 14,1964, after it had been instructed to commence work on August 10, 1964. This delay was brought about by the failure of the contractors to have the beams and girders installed, upon which Ruckman had to work, until September 14. As shown in the calculation by which the court reached the amount of its judgment, it is apparent the court did not allow any damages to Ruckman because of Ruckman’s delayed commencement of work, nor was any amount allowed Ruckman for the $5,000 it had to pay for access to the east end of the bridge to commence work.

The Commission complains the judg ment is excessive and in error because it is based upon the court’s interpreting only a part of the contract without construing the contract in its entirety. The Commission urges the plans showed a finished profile grade line and this should have been considered along with the fact the plans did show a fixed haunch. Mr. Ruckman testified and produced two civil engineers who qualify as experts. All three of these witnesses testified the plans called for a fixed haunch. They further testified the construction of a bridge with a fixed haunch was very common and this bridge could have been constructed with a fixed haunch according to the plans and specifications contained in the contract. The Commission made no objection to the qualifications of these witnesses or to their testimony.

In fact the Commission admitted it forced a change from a fixed to a variable haunch in a letter written by its chief engineer in 1968 after the bridge was completed. Mr. Snider wrote “on the item of forming, we are ready to pay for any additional costs that might have resulted from the change to a variable haunch on some of the spans.” Thus, the Commission has already defined the issues in this case as being the amount of damages and not whether a change from a fixed to a variable haunch was made.

The above constituted substantial evidence upon which the court could base its finding that Ruckman was forced to change from a fixed haunch construction, as called for in the contract, to a variable haunch. Under Denton Construction Company v. Missouri State Highway Commission, 454 S.W.2d 44 (Mo.1970) this supplied the requisite legal foundation for a recovery by Ruckman.

Further, the extra costs incurred by reason of the failure of the steel bars to fit unless cut and bent to the precise dimension called for was supported by substantial evidence. The Commission argues the typical sections shown on the plans which showed the precise dimensions with the required clearance was misconstrued by the court. However, the Commission overlooks the substantial evidence produced by Ruckman to show the cause of the extra expense on steel bars to be the failure of the bars to be usable unless they were the exact dimension without any variation even though such variation was allowed by the specifications.

The Commission states the judgment is in error because it allows damages resulting from adverse weather conditions and labor problems. As already pointed out, the computation made by the court in arriving at its judgment did not allow any item of damage for weather conditions and labor problems.

The Commission contends the judgment is in error and is excessive because it returns to Ruckman the $69,000.00 in liquidated damages which the Commission had withheld because of the delay in completing this project. In the argument under this point the Commission simply states it was proper for the parties to agree on a damage figure of $250.00 per day for each day the contract was uncompleted beyond the deadline. No effort is made to analyze the time Ruckman claimed to have been delayed beyond its control. The Commission, in fact, completely fails to make any analysis of the days lost and the cause therefor. However, this court has analyzed the testimony of Ruckman in which the number of days lost were detailed and the reasons assigned for each delay. This court finds Ruckman was claiming a total of 143 days lost because of jurisdictional disputes among various labor unions. This delay cannot be excused because under the contract Ruckman assumed the risk of time lost because of labor difficulties. Therefore, Ruckman should have been assessed a penalty of $250.00 for each of 143 days, or a total penalty of $35,750.00. For that reason, the judgment is ordered modified by reducing it by $35,750.00 and to award Ruckman actual damages of $868,-513.07. Of course, this also necessitates a recomputation of interest.

The Commission also makes the claim the judgment is in error because it awards damages to Ruckman for a change in the slope of the bridge deck overhang. Mr. Ruckman specifically testified no extra compensation was being claimed because of the change order which was executed which called for the change in the slope of the overhang. It does not appear the court awarded any damages for this and the Commission makes no effort to demonstrate that the court in fact awarded damages partially based on this change.

The Commission contends the judgment is excessive because it allows compensation to Ruckman for quantities of concrete and steel over and above that provided in the contract without any proof of gross error, mistake or fraud. The argument under this point contends Ruckman was claiming compensation for concrete to lay the deck at a greater thickness than the seven and one-half inches called for in the plans. Although there was testimony to indicate the deck at some points exceeded the seven and one-half inch depth specified, an analysis of the testimony and the computation used by the court in arriving at its judgment does not indicate the judgment allows Ruckman compensation for additional concrete or steel. The compensation allowed was to cover additional labor and material other than steel and concrete materials costs because of the change in the forms which was required to be made and because of the reworking of the steel bars by cutting or rebending.

The Commission’s last point contends the judgment is erroneous and excessive because not supported by evidence as to the amount of damages because Ruckman’s evidence merely consisted of its bid price and the amount of the actual cost incurred. As heretofore stated, Mr. Ruckman testified both as to the amount of actual damages incurred and also as to the amount of such damages as calculated under the force account method provided by the contract. The court used the amounts as calculated under the force account method. The Commission has not challenged the amounts as calculated under the force account method nor did it introduce any evidence to controvert or challenge any calculation of damages introduced by Ruckman. In its argument it makes no effort to demonstrate any error, or lack of evidence, to support the calculations made by Ruckman. Instead the argument consists of abstract statements of law which are unconnected to the evidence.

The Commission makes no other allegations of error. It is significant the Commission does not make any complaint about the manner in which Ruckman performed this work. A review of all the evidence convinces this court the Commission was principally resisting the amount of this claim. However, the Commission made no effort to refute the calculation of damages Ruckman presented, but has only challenged the matters discussed herein.

The judgment is supported by substantial evidence except for the part which awarded the $69,000.00 in liquidated damages withheld to Ruckman.

The judgment is modified by fixing Ruckman’s actual damages at $868,513.07 and interest on this amount up to the time of judgment is $416,886.24. The judgment as modified in the amount of $1,285,399.31 is affirmed.

All concur.


author: SOMERVILLE, Judge.

text:
    June Charles SIMS, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28367.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1976.
    Motion for Rehearing and/or Transfer Denied Jan. 31, 1977.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Christopher R. Brewster, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

This is an appeal from an order entered by the trial court denying an “Application to Reopen Motion 27.26 and to Amend the Pleadings” (hereinafter referred to as the subsequent motion) which was filed by appellant (hereinafter referred to as the mov-ant) in connection with a Rule 27.26 motion previously ruled adversely to him.

At the very threshold of appellate review this court is faced with certain basic questions of profound and possibly conclusive significance. What, in fact, was the nature and thrust of the relief sought by movant’s subsequent motion? Was the trial court vested with jurisdiction to “reopen” its judgment entered September 26, 1974, denying movant relief under his Rule 27.26 motion? No easy answers to these questions exist, but those which do necessarily have to be ferreted from the transcript presented on appeal and controlling procedural rules and interpretative case law. With the aforementioned questions in mind, certain facts and events bearing upon their proper answers are hereinafter set forth and chronologized.

Upon conviction of arson, movant was sentenced on December 6, 1971, to forty years imprisonment. He appealed his conviction to the Missouri Supreme Court on the ground that he was denied a fair trial “because of non-disclosure by the prosecution of promises made to material witnesses”. This contention was ruled against movant on the ground that it did not “prove itself” and there was nothing in the “record” to support it. Accordingly, mov-ant’s conviction was affirmed on direct appeal. State v. Sims, 501 S.W.2d 161 (Mo.1973).

On June 17, 1974, movant filed a pro se Rule 27.26 motion to vacate his sentence. The sole ground asserted therein being that he was “denied effective assistance of counsel”. His Rule 27.26 motion was overruled on September 26, 1974, without appointment of counsel or an evidentiary hearing. No timely appeal was taken from the judgment entered by the trial court on September 26, 1974, overruling movant’s Rule 27.26 motion.

On or about March 24, 1975, movant apparently advised the trial court that he contemplated or desired to file the subsequent motion heretofore referred to. The trial court, on being so advised, appointed the Office of the Public Defender of the 16th Judicial Circuit to represent movant. On April 16, 1975, movant, with the aid of counsel, filed his subsequent motion, which, as previously noted, was captioned, “Application to Reopen Motion 27.26 and to Amend the Pleadings”. The state responded to movant’s subsequent motion by filing a pleading captioned, “Motion to Deny Application to Reopen 27.26 Motion”, the principal gist of which was that the trial court lacked jurisdiction to reopen the Rule 27.26 motion because the judgment of the trial court entered September 26, 1974, overruling same was a final judgment from which no appeal had been taken. On October 14, 1975, the trial court heard arguments on the respective motions, and, on October 15, 1975, entered “judgment” denying movant’s subsequent motion, i. e., his “Application to Reopen Motion 27.26 and to Amend the Pleadings”, and sustaining the state’s “Motion to Deny Application to Reopen 27.26 Motion”.

On October 23, 1975, movant filed a notice of appeal. The notice of appeal, regarding compliance with Rule 81.08(a) that it “specify . . . the judgment or order appealed from . . . ”, contained the following statement: “Appeal from an order dated October 15, 1975, denying Movant’s motion to reconsider original 27.26 motion originally denied on September 26, 1974 or in the alternative, an appeal of the September 26, 1974 ruling despite the untimeliness of the Notice of Appeal.”

The avowed purpose of movant’s subsequent motion, as determined from its caption, its contents, the argument presented in its support, and the statement contained in the notice of appeal in compliance with Rule 81.08(a), supra, was to reopen, reliti-gate and have reconsidered, albeit with certain additional grounds claimed, movant’s Rule 27.26 motion which had previously been overruled on September 26, 1974, and from which no timely appeal was taken. Having answered the first question posed— that the nature and thrust of movant’s subsequent motion was to reopen, relitigate and have reconsidered his Rule 27.26 motion — attention now focuses on the second question posed. Was the trial court vested with jurisdiction to “reopen” its judgment entered September 26, 1974, denying mov-ant relief under his Rule 27.26 motion? On appeal movant blithely ignores this crucial question. The points which movant relies on in his brief, and the arguments tendered in their support, carefully avoid any mention of a jurisdictional problem. On the other hand, the state’s brief devotes itself entirely to the jurisdictional problem. The cavalier attitude taken by movant does not shelve the decisive nature of the jurisdictional question.

Subparagraph (a) of Criminal Rule 27.26clearly and succinctly states, inter alia, that “. . . [a] motion filed hereunder is an independent civil action . . ” and that “[t]he procedure before the trial court and on appeal is governed by the Rules of Civil Procedure insofar as applicable.” Subparagraph (j) of Criminal Rule 27.26states, inter alia, with equal clarity and succinctness, that “[a]n order sustaining or overruling a motion filed under the provisions of this Rule shall be deemed a final judgment for purposes of appeal .” and that “[a]n appeal may be taken from the order entered on the motion as in a civil case . . .”. Thus, the concept of finality of judgments is just as viable in Rule 27.26 proceedings as in other types of civil actions. If this were not so, judgments rendered and entered in Rule 27.26proceedings would hang in abeyance indefinitely and procedural chaos would inevitably result insofar as determining the finality of Rule 27.26 proceedings. No justification can or has been perceived by this court for stamping such obvious chaos with judicial imprimatur.

The trial court, for the following reasons, clearly lacked jurisdiction to “reopen” its judgment overruling movant’s Rule 27.26 motion. The judgment was a final judgment. Rule 27.26(j), supra. The trial court had thirty days after entry (September 26, 1974) of said final judgment to “reopen” the same. Rule 75.01. After that time it lost jurisdiction to do so. Only a timely after-trial motion could have extended the trial court’s jurisdiction to “reopen” the judgment. Rule 81.05. No timely after-trial motion was filed. Perforce, the trial court lacked jurisdiction to “reopen” or “reconsider" movant’s Rule 27.26 motion and therefore properly denied movant’s request that it do so. Berry v. Chitwood, 362 S.W.2d 515, 517 (Mo.1962), rev’d on other grounds; Halmich v. McCullough, 534 S.W.2d 842 (Mo.App.1976); Thompson v. Hodge, 348 S.W.2d 11, 13 (Mo.App.1961); and Schenberg v. Schenberg, 307 S.W.2d 697, 702 (Mo.App.1957). See generally State ex rel. Schweitzer v. Greene, 438 S.W.2d 229, 231 (Mo.banc 1969).

This court does not have jurisdiction to entertain movant’s appeal on his espoused alternative theory that it be considered as an appeal from the original judgment entered September 26, 1974, since no timely appeal was taken therefrom (Rules 81.04 and 81.05) and no special order was timely sought from this court pursuant to Rule 81.07(a) to file a notice of appeal within six months after the judgment became final. Godsy v. Godsy, 521 S.W.2d 449 (Mo.App.1975); and Bank of Thayer v. Kuebler, 240 Mo.App. 776, 219 S.W.2d 297, 298-99 (1949).

As movant’s subsequent motion was framed and raised by him at the trial court level, and treated on appeal, as a motion to reopen the judgment entered September 26, 1974, the availability or non-availability of another type of motion to present or raise part or all of the grounds asserted by mov-ant in his subsequent motion as justiciable issues is not reached by this opinion. Therefore, the decision of this court affirming the judgment entered by the trial court denying movant’s subsequent motion is without prejudice to any right movant may have, if any, to utilize a different procedural approach. In the event movant hereafter seeks to do so, judicial resolution of whether such properly lies and, if it does, whether movant is entitled to any relief, will be determinable at that time in accordance with such law and rules as may be applicable and pertinent thereto, and in light of its particular factual context.

Judgment affirmed.

All concur.