author: MORGAN, Judge.

text:
    STATE of Missouri, Respondent, v. James Franklin ST. JOHN, Appellant.
    No. 59653.
    Supreme Court of Missouri, en banc.
    Dec. 13, 1976.

      Jon M. Krebbs, Asst. Public Defender, 7th Judicial Circuit, Liberty, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
   MORGAN, Judge.

Respondent’s application to transfer this cause from the Kansas City District of the Court of Appeals having been sustained, we consider the same “as on original appeal.” Mo.Const. Art. 5, Sec. 10.

Appellant was convicted of obtaining a controlled substance in violation of § 195.-250, RSMo 1969, which provides that: “It is unlawful for any person to obtain or attempt to obtain any controlled substance listed in Schedules III, IV or V or procure or attempt to procure the administration of the drug by the following means: (1) Fraud, deceit, misrepresentation, or subterfuge; or (2) The forgery or alteration of the prescription or of any written order; or (3) The concealment of a material fact; or (4) The use of a false name or the giving of a false address.”

At trial the evidence established that appellant had obtained sixty amphetamine-type tablets (controlled substance) from a licensed druggist by presenting a prescription made out to a non-existent person and bearing the forged signature of a local physician. The prosecuting attorney apparently concluded that evidence was lacking to prove appellant guilty of forging the prescription and proceeded under the first statutory alternative, i. e., obtaining drugs by deceit. For instance, argument was made to the jury that: “The crime is obtaining drugs by deceit, by the use of a forged prescription, not that he forged it, but that it was forged and that he used it.” The verdict directing instruction was predicated on a finding of deceit; and, the jury returned a verdict specifically finding that appellant obtained a “controlled substance by deceit.”

The information reads, in part: “[0]n or about the 17th day of April A.D., 1974, at the County of Clay, in the State of Missouri, one James Franklin St. John did then and there wilfully [,] feloniously and knowingly obtain from Robert Fawks, a quantity of preludin endurets containing Phenmetra-zine, a Schedule III controlled substance, by presenting and requesting the filling of a forged prescription purporting to bear the signature of Hill Thurman, M.D., a physician, against the peace and dignity of the State.”

Before this court, appellant challenges the sufficiency of the information by submitting that it is predicated on “deceit” but fails to allege the presence of a necessary element thereof, i. e., “reliance” on the part of the party deceived. Rule 28.02 provides that: “Allegations of error respecting the sufficiency of the information shall be considered upon an appeal although not raised in the trial court or preserved for review.”

Appellant relies primarily on State v. Kesterson, 403 S.W.2d 606 (Mo.1966), wherein this court considered the significance of the term “deceit” in the then new stealing statute (§ 560.156) as it affected the alleged insufficiency of an information purporting to charge a violation thereof. The statute, in part, declares it to “be unlawful for any person to intentionally steal the property of another, either without his consent or by means of deceit.” The information therein alleged that the defendant (Kesterson) did “ . . . intentionally steal, by means of deceit certain property . ” In rejecting the same, the court recognized (l.c. 609) that generally an information is sufficient if it charges the offense in the language of the statute, but that it is not if the statute creating the offense uses generic terms and “does not individuate the offense with such particularity” as to fully advise the accused of what he is to defend against. Thereafter, 1. c. 610-611, the court said:

Not only does defendant claim that the information did not allege what the deceit was, but she also complains that it did not recite that the victim relied thereon. Such a recital was necessary in infor-mations under the predecessor statute, § 561.370, involving false representations. State v. Norman, Mo., 232 S.W. 452. Such allegations also are required under the so-called confidence game statute, § 561.450. State v. Stegall, Mo., 353 S.W.2d 656; State v. Cunningham, Mo., 380 S.W.2d 401. The reasoning which required that the state allege in the information and prove that the victim relied on the misrepresentation in cases under §§ 561.450 and 561.370 also is applicable to charges of stealing by deceit under § 560.156. Unless the victim does rely on the conduct which constitutes the deceit, the stealing is not accomplished by deceit and the offense is not proved.
We hold that § 560.156, in describing the offense of theft by deceit, does use generic terms and that it is necessary that indictments or informations thereunder recite sufficiently the conduct constituting a theft by deceit with which a defendant is charged as to notify him as to the charge against which he must defend himself and likewise be sufficient to bar further prosecution for the same offense. We also hold that the information must charge that the victim relied on the misrepresentations with which defendant is charged. The information herein did neither.

See also State v. Cantrell, 403 S.W.2d 647 (Mo.1966), where further consideration was given to the required pleading of the essential and constituent element of a crime.

In response, the state concedes that the statute (§ 195.250) delineates several different means of violating the same by the use of generic as well as non-generic terms; but, then suggests that it is illogical and unwarranted to hold that “reliance” is necessarily an element of prosecution under subsection (1) of § 195.250 primarily because the druggist is not a “victim” in the sense of one parting with property because of the deceit of another. Under § 560.156 and related statutes, it is true that the “reliance” required is that of a “victim.” Argument is made that the purpose of § 560.156 is to prevent individuals from parting with their property because of the deceit or misrepresentations of another party, but that the purpose of § 195.250 is not to control the defrauding or deceit of druggists or pharmacists but rather to prohibit the misuse of narcotic drugs.

Thus, an interesting question is posed, i. e., is it impossible to prosecute a person under subsection (1) of § 195.250 for obtaining a controlled substance by “deceit” because there is no “victim” to provide a “reliance” thereon? Resolution of an answer to the question posed is made easier if we note how the ’’reliance” issue has been disposed of under similar charges based on statutes comparable to other subsections of § 195.250. In 28 C.J.S. Supplement Drugs and Narcotics § 152, it is said: “a. In a number of jurisdictions obtaining a controlled substance . by . deceit . is a statutory offense * * * A specific intent to . deceive is not an element of the offense * * * b. The elements of the general offense of forgery are not incorporated in the statutory offense of obtaining a narcotic by a forged prescription, and an intent to defraud is not an element of the offense * * * c. [Giving false name or address] * * * The sole intent required is the intent to obtain the narcotic or other prohibited drug; and reliance on the false statement by the person who filled the prescription or order is not an essential [element] of the crime.” Cases cited in support thereof include: State v. Osborn, 16 Ariz.App. 573, 494 P.2d 773; State v. McFall, 5 Ariz.App. 539, 428 P.2d 1013; State v. Blea, 20 Utah 2d 133, 434 P.2d 446; and, Merritt v. State, 245 Ind. 362, 198 N.E.2d 867. Others of interest are: State v. Lee, 62 Wash.2d 288, 382 P.2d 491; People v. Oviedo, 106 Cal.App.2d 690, 235 P.2d 612; Geurin v. State of Nevada, 73 Nev. 233, 315 P.2d 965; and, State v. Crawford, 251 S.W.2d 76 (Mo.1952).

In State v. Osborn, supra (1972), wherein the charge was based on the “deceit” portion of a similar statute, the court said, 494 P.2d l.c. 775: “This statute does not attempt to control the defrauding or deceit of druggists, and the specific intent to defraud or deceive need not be proven in order to convict . . .” See also Forbes v. Ingraham, 40 A.D.2d 1058, 338 N.Y.S.2d 955 (1972).

In State v. Livingston, 2 Or.App. 587, 469 P.2d 632 (1970), the charge was that of obtaining drugs by “fraud, deceit, misrepresentation and subterfuge” and the court concluded, 469 P.2d l.c. 634, that: “The Oregon Supreme Court has recognized that ORS ch. 474 should be given a sensible construction according to the fair import of its terms, with a view to effect the object of regulating and controlling traffic in narcotic drugs. See State v. Powell, 212 Or. 684, 692, 321 P.2d 333 (1958). Although the four words do have precise technical meanings in some legal contexts, their less precise everyday meaning is best suited for effectuation of this statutory purpose. This, combined with the fact that ORS 474.-170 uses a number of roughly synonymous terms, leads us to conclude that the object of the statute is to proscribe the obtaining of narcotic drugs through any untruthfulness or nondisclosure, whether or not the means employed constitutes ‘fraud,’ ‘deceit,’ ‘misrepresentation,’ or ‘subterfuge’ in the technical sense.”

Compare, however, Merritt v. State, 245 Ind. 362, 198 N.E.2d 867 (Ind.1964), wherein the court decided that “reliance” was not an essential element where the charge was based on use of a false name but was if based on deceit.

Consideration must also be given to the standard against which an information is judged in this state. “Rule 24.01, V.A.M.R., provides that an information ‘shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.’ This court has ‘long ago departed from the extremely technical requirements of common law indictments and informations.’ State v. Brookshire, Mo., 368 S.W.2d 373, 380. An information is not to be held insufficient for failure to follow the exact words of a statute if words of similar import are employed. State v. Simone, Mo., 416 S.W.2d 96.” State v. Parker, 476 S.W.2d 513, 516 (Mo.1972).

Quite obviously if there is to be a negative answer to the question heretofore posed, it must be resolved that the General Assembly used the term “deceit” in subsection (1) of § 195.250 in the sense determined in State v. Livingston, supra. For the reasons herein considered we are convinced there is no basis for concluding otherwise and that it would be totally unrealistic-to do so. The intent and purpose of § 195.250 is to prescribe the obtaining of narcotic drugs through any form of untruthfulness, deception or nondisclosure. The statute was not intended to control the defrauding or deceit of druggists. “Reliance” therefore is not an element of an offense under § 195.250 as it is under § 560.156 which is designed to prevent individuals from parting with their property because of the deceit or misrepresentations of another party. State v. Kesterson, supra, therefore is distinguishable and not controlling. Thus, the information in this case was sufficient to charge appellant with an offense under subsection (1) of § 195.250.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: FINCH, Judge. HENLEY, Judge

license: Public Domain

text:
    Jerry KILBANE d/b/a Kilbane Dental Lab, Appellant, v. The DIRECTOR OF the DEPARTMENT OF REVENUE of the State of Missouri, Respondent.
    No. 59341.
    Supreme Court of Missouri, En Banc.
    Dec. 13, 1976.

      Jack N. Bohm, Stoup & Bohm, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Douglas Mooney, Asst. Atty. Gen., Jefferson City, for respondent.
   FINCH, Judge.

This is an appeal from a judgment which affirmed an assessment of sales tax by the Missouri Department of Revenue on gold and porcelain crown and bridgework fabricated on prescription by appellant for dentists. The sole issue for determination on appeal is whether such purchases by dentists are sales at retail within the definition thereof contained in § 144.010.1(9). Since construction of the revenue laws of the state is involved, we have jurisdiction. Art. V, § 3, Mo.Const.

This case was heard in Division Two wherein an opinion was adopted which reversed the judgment and directed abatement of the tax assessed. Thereafter, the case was transferred to the court en banc and reheard. We affirm.

Appellant operates a dental laboratory in which he makes crown and bridgework pursuant to orders received from dentists. Appellant is furnished a prescription for each order, usually accompanied by an impression of the mouth of the patient. When completed, the crowns and bridgework are furnished to the dentist who then installs them in the mouth of his patient.

Appellant purchases from dental supply houses the various materials used by him in making crowns and bridgework. He pays sales tax on those materials but has not reported and paid sales tax on crowns and bridgework made for and sold to dentists.

On February 13, 1975, the Director of Revenue made an assessment of sales tax on bridgework and crowns sold by appellant between January 1, 1971, and March 30, 1974. Appellant contested the assessment and an evidentiary hearing was held by a hearing officer for the Department of Revenue. He made findings of fact and conclusions of law wherein he upheld the assessment, after allowing credit thereon for sales taxes shown to have been paid by appellant on materials used in making the crowns and bridgework. The amount of the assessment approved, including penalty and interest to date of the hearing officer’s order, was $9,446.04. Thereafter, on petition for review to the circuit court, the assessment was affirmed and judgment was entered accordingly. This appeal followed.

In Berry-Kofron Dental Laboratory Co. v. Smith, 345 Mo. 922, 137 S.W.2d 452 (1940), this court determined that under the then existing sales tax law a dental laboratory was not liable for sales taxes on sales to dentists of articles similar to those involved here. At that time, § 1(g) of the Sales Tax Act, Laws 1937, p. 552, defined retail sales thus: “ ‘Sale at retail’ means any transfer made by any person engaged in business as defined herein of the ownership of, or title to, tangible personal property to the purchaser, for use or consumption and not for resale in any form as tangible personal property, for a valuable consideration.” The court concluded that sales by dental laboratories to dentists of dentures, inlays, bridgework and other such items were not sales at retail within that definition and were not subject to sales tax. In so holding, the court concluded that when the dentist placed such devices in the mouths of his patients, he did not use or consume them.

Thereafter, in 1947, the Missouri General Assembly amended the Sales Tax Act by adding to the definition of “Sale at Retail” the following language: provided, however, that for the purposes of this act and the tax imposed thereby, purchases of tangible personal property made by duly licensed physicians, dentists and veterinarians and used in the practice of their professions shall be deemed to be purchases for use or consumption and not for resale.” The question squarely presented is whether, as a result of this amended definition of “Sale at Retail,” sales of items such as crowns and bridgework, made for and sold to dentists for use in the mouths of their patients, are subject to sales tax.

When Berry-Kofron was decided, the sales tax law made taxable the transfer of tangible personal property for use or consumption by the purchaser. The act did not define the words “use” or “consumption” and there was no language specifically indicating whether the legislature intended to include therein items such as crowns, bridgework or dentures purchased by dentists on prescription for installation in the mouths of their patients. Accordingly, the court reviewed various dictionary definitions and concluded that the items in question were not used or consumed by the dentist. On that basis the court held that the sales thereof were not taxable to the dental laboratory, the seller.

With that background, the General Assembly enacted the 1947 amendment. By that amendment, the legislature added language to the existing definition which said that henceforth purchases of tangible personal property by dentists which were then used in the practice of their profession “shall be deemed to be purchases for use and consumption and not for resale”. The same was to be true of similar purchases by physicians and veterinarians. What did the legislature intend by that amendment? What change in the applicable law was made?

Appellant argues that the new language applies only to things purchased from dental supply houses, such as dentist’s chairs, surgical instruments, bandages, tongue depressors, medicines, etc., but does not apply to items made on order by dental laboratories and sold to the dentist placing the order. We find no language in the act to support such an interpretation. Neither dental supply houses nor dental laboratories are mentioned in the act. Furthermore, adoption of the interpretation proposed by appellant would mean that the 1947 amendment made no change in the law, because the items listed by appellant as taxable under the amended law were taxable before the amendment. In other words, the 1947 amendment would have accomplished nothing and would have been a useless act. Legislative changes should not be so construed unless no other conclusion is possible. The applicable rule of construction, stated in Gross v. Merchants-Produce Bank, 390 S.W.2d 591, 597 (Mo.App.1965), is as follows:

“In construing statutes to ascertain legislative intent it is presumed the legislature is aware of the interpretation of existing statutes placed upon them by the state appellate courts, and that in amending a statute or in enacting a new one on the same subject, it is ordinarily the intent of the legislature to effect some change in the existing law. If this were not so the legislature would be accomplishing nothing, and legislatures are not presumed to have intended a useless act. Wright v. J. A. Tobin Construction Co., Mo.App., 365 S.W.2d 742; State ex rel. M. J. Gorzik Corp. v. Mosman, Mo.Sup., 315 S.W.2d 209.”

In accordance with Gross, we start with the premise that by adding to the definition of “Sale at Retail”, the legislature intended to and did make a change in what the law covered. It included therein items which under the existing law were excluded. While we have no legislative history to demonstrate that this change was prompted by Berry-Kofron, it seems most likely that it was. Under the law as it was prior to the 1947 amendment, materials purchased by a dentist and then used in filling teeth would have been taxable as items used or consumed in the doctor’s practice. This would include materials such as gold. Thus, when gold was placed inside the tooth, it was considered to be used or consumed but under Berry-Kofron, when gold crowns were placed on the tooth, they were not used or consumed. The first was a taxable purchase but the second was not. Understandably, the legislature sought to eliminate this apparent inconsistency. They said that if tangible personal property is used by the physician, dentist or veterinarian in the practice of his profession, it shall be deemed to have been purchased for use or consumption and, hence, taxable.

Clearly, the dentist uses crowns and bridgework in the practice of his profession, just as does a surgeon use in his practice a pin which he inserts in a fractured bone or an artificial joint which he uses to replace a damaged or improperly functioning joint. The fact that the item so used retains its form when placed in the patient does not mean that the doctor has not used the item in the practice of his profession.

In arguing that the purchases of crowns and bridgework are not taxable, appellant’s brief stresses the fact that materials used represented only a small portion of the cost of crowns and bridgework. We find nothing in the Sales Tax Act which indicates that whether sales tax is due depends on the respective percentages of labor and materials in the product sold. The meaning of the 1947 amendment cannot be resolved on that basis.

Finally, appellant relies on Rule No. 68 promulgated by the Director of Revenue. That rule states as follows:

“Purchases referred to in these instances would encompass dentist’s chairs, surgical instruments, bandages, tongue depressors, etc., including medicines consumed in the rendering of their services.”

It is argued by appellant that the foregoing rule, representing the Director’s interpretation of § 144.010.1(9), as amended, does not include crowns or bridgework which shows that the Director did not interpret the 1947 amendment as including them. We do not agree. The rule lists several items as examples and then adds “etc.”, thereby indicating that other things are included. It does not purport to list each and every kind of purchase which will be taxable. We find nothing in the rule which would justify the interpretation of the amended act urged by appellant or the conclusion that the Director so construed the amendment.

We are not called upon in this case to review the propriety of the decision in Berry-Kofron because we construe herein a statute with different provisions than those contained in the statute construed in Berry-Kofron. We do hold that Berry-Kofron is not authority for exempting appellant’s purchases of crowns and bridgework from sales tax under the existing act and is not to be followed in construing coverage by the present act.

Judgment affirmed.

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

HENLEY, J., dissents in separate dissenting opinion filed.

MORGAN and DONNELLY, JJ., dissent and concur in separate dissenting opinion of HENLEY, J.

HENLEY, Judge

(dissenting).

I respectfully dissent and as my dissenting opinion adopt the reasoning summarized in an opinion written in Division II by Eager, Special Commissioner, as follows:

The original statute taxed sales of tangible personal property for use or consumption by the purchaser. In the Berry-Kofron case, referred to in the majority opinion, the court held that a dentist purchasing a denture from a laboratory does not use or consume the denture in his practice when he places it in his patient’s mouth in the course of his professional services; that the patient is the one who uses it by applying it to the purposes for which it was intended. The same is true of crowns and bridges. The 1947 amendment provides that the purchase of tangible personal property by dentists and physicians which is “used in the practice of their professions” is deemed to be a purchase for use and consumption. Thus, the requirement of “use” in the practice is preserved in the amendment. And the key element here is just that: is the crown or bridge “used” by the dentist in his practice? Berry-Kofron says it is not. The legislature may perhaps have intended to negate the effect of Berry-Kofron, as respondent says, but, if so, it did not choose appropriate language. We must be guided by the language which it did use. And, in fact, we must assume, perhaps more theoretically than realistically, that the legislature was cognizant of the meaning of the language as construed in the Berry-Kofron case. In any event, “used in the practice” means what this court has previously held that it means, absent some contrary provision in the statute, or absent our overruling Berry-Kofron. I would not overrule that case, and note that the majority opinion does not.

Accordingly, I would reverse the judgment and remand the case with directions that the circuit court enter judgment reversing the decision of the Director of Revenue with directions to him to abate his assessment of sales tax against appellant.

      . In RSMo 1969, the section number is 144.-010.1(8). However, as a result of an amendment to § 144.010 in 1975, it is now listed in V.A.M.S. as 144.010.1(9).

      . Laws 1947, Vol. I, p. 535.

      . Appellant testified that between 80% and 95% of the sale price for crowns and bridgework represents labor and only 5% to 20% represents materials used.


author: FINCH, Judge.

text:
    Abram MOSKOWITZ, Plaintiff-Respondent, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Defendant-Appellant.
    No. 59552.
    Supreme Court of Missouri, en banc.
    Dec. 13, 1976.

      Edward K. Fehlig, Clayton, for defendant-appellant.
    Timothy V. Barnhart, St. Louis, for plaintiff-respondent.
   FINCH, Judge.

This is an action on a group major medical expense policy to recover the cost of nursing care provided to plaintiff’s wife by a licensed practical nurse. Plaintiff, husband of the recipient of the nursing care, obtained a verdict for $3,150.00. The judgment was affirmed on appeal by the Missouri Court of Appeals, St. Louis District. On application of defendant (sometimes referred to herein as Equitable), we ordered the case transferred and we now decide it as though here on direct appeal. Mo.Const. art. V, § 10. We reverse.

Equitable, on the application of Beacon Shoe Company, Inc., issued for the period from October 1970 through December 1971 a major medical insurance policy which provided certain coverage for Beacon’s employees and their dependents. It included a rider captioned “Special Plan for Medicare Participants” which, in pertinent part, was as follows:

“Upon receipt of due proof that an employee or an employee’s dependent while insured for benefits under this rider, shall have incurred ‘covered medical expenses’ (defined below) on account of a non-occupational accidental bodily injury or a nonoccupational sickness and that such covered medical expenses during a calendar year exceed the deductible amount (defined below), the Society shall, subject to the other provisions of this rider and to the provisions of this policy, pay to the employee an amount of benefits equal to 80% of such excess covered medical expenses incurred during such calendar year provided that the total amount of benefits payable with respect to any person while insured for benefits under this rider shall in no event exceed $5,000 (herein referred to as the Special Plan Maximum).
“DEFINITIONS:
“For the purposes of insurance under this rider, the following definitions shall apply:
“2. COVERED MEDICAL EXPENSES. The covered medical expenses referred to herein shall consist of the following charges for services, supplies and treatment:
“b. Charges made for private nursing service by a Registered Professional Nurse (R.N.).
“LIMITATIONS:
“A. Covered medical expenses shall in no event be deemed to include expenses incurred
“2. for services, supplies or treatment “a. other than those prescribed as necessary (including the quantity and duration thereof) by a physician legally licensed to practice medicine and surgery ....

Substantially the same language appeared in a descriptive brochure delivered to each Beacon employee covered by the policy.

Anna Moskowitz, plaintiff’s wife, was a Medicare participant. Hence, the foregoing policy rider covering such persons was applicable to her. She was hospitalized in early May 1971 for Parkinson’s disease. When she went home from the hospital on May 29,1971, her condition made it dangerous for her to walk alone and her attending physician, Dr. Scheff, gave instructions for her to have continuous care.

Dr. Scheff confirmed his instructions concerning nursing care in a memo dated June 9,1971. It stated: “I have deemed it necessary that Mrs. Anna Moskowitz should have, at all times, private duty nurses at her home due to her severe Parkinsonism. Because of the fact that there are no registered nurses available, practical nurses shall be used.” In a handwritten postscript to the foregoing, the doctor added: “Practical nurses are adequate for her nursing care.” This latter statement was confirmed by the testimony of Dr. Scheff when he stated that in his medical opinion it was not necessary to have a registered nurse to care for Mrs. Moskowitz.

With the exception of one registered nurse who spent one day caring for Mrs. Moskowitz, all other nurses obtained to provide private nursing care at home were licensed practical nurses. They gave orally the medicines prescribed by the doctor. Sometime before her death in September 1972, Mrs. Moskowitz also received penicillin shots which were given by the nurse on duty. Other duties included feeding the patient, moving her from the bed to a walker or a wheelchair or the commode, bathing her and providing other bedside care.

During the period from May 1971 through December 1971, plaintiff paid the sum of $6,498.00 for services of licensed practical nurses. The Medicare rider limited liability of the company for an insured to 80 per cent of covered medical expenses not to exceed $5,000 and the company was entitled to credit for $786.36 paid to plaintiff for expenses other than practical nursing services. The jury awarded plaintiff the sum of $3,150.

Equitable urges on appeal that the trial court should have sustained its motion for directed verdict because the plain and unambiguous language of the policy limited coverage for private nursing services to those provided by registered professional nurses (sometimes referred to herein as R.N.s). In response, plaintiff argues that (1) the language of the policy is ambiguous and should be construed as providing coverage for private nursing service by practical nurses, (2) an insurer is required to pay benefits under a medical expense policy where there has been substantial compliance with requirements specified in the policy and (3) the employment of licensed practical nurses when R.N.s were unavailable constituted substantial compliance with the policy provisions.

Is the policy language with reference to coverage for charges for private nursing services ambiguous?

It is plaintiff’s position that the structure of the clause “charges made for private nursing service by a Registered Professional Nurse (R.N.)” makes it evident that the intent was to provide coverage for private nursing services in the home. He argues that the words used describe the kind of service covered rather than limiting the persons who may perform those covered services. Additionally, he says that since the policy did not state whether persons other than R.N.s could perform the covered private nursing services, the policy is ambiguous. We disagree. The language is brief and precise. It says simply that covered medical expenses referred to in the policy include charges by R.N.s for private nursing service when prescribed as necessary by a physician legally licensed to practice medicine or surgery. How could it be stated any more clearly or exactly? When one states that an apple is red, he need not add that it is not green, brown, blue or any other color besides red. He says it all and he says it clearly when he says the apple is red. It wasn’t necessary for Equitable to add that coverage would not apply if the private nursing services were performed by a practical nurse. It clearly and positively stated that the policy covered such nursing services when prescribed by the doctor and performed by an R.N. That is what it means. There is no room for any other reasonable interpretation of the language used.

If it had been the intention to cover private duty nursing in homes, irrespective of whether performed by R.N.s or practical nurses, there would have been no occasion to include language specifying coverage for such services by R.N.s. Instead, the language would have mentioned both kinds of nurses or neither. For example, on January 1, 1972, Beacon replaced the Equitable policy with one written by John Hancock. It was to provide coverage for private nursing services by R.N.s plus, in more limited circumstances, such services by practical nurses. It did not refer to only R.N.s. Instead, it specifically spelled out the coverage for services by both kinds of nurses in the following language:

“Private duty nursing service furnished in a hospital or elsewhere by a registered graduate nurse who is entitled to use the suffix R.N. after his or her name and private duty nursing service furnished by a registered or licensed practical nurse in a hospital (but not elsewhere) if the attending physician certifies in writing that a registered graduate nurse (R.N.) was not available, provided in any case that such nurse is one who does not ordinarily reside in the home of the employee and is not a member of the employee’s immediate family (which for purpose of this coverage consists of the employee’s wife or husband and the children, brothers, sisters and parents of the employee, and of the employee’s wife or husband).”

Plaintiff next argues that there is coverage in this case for the reason that everything done for Mrs. Moskowitz by the practical nurses could have been done for her by R.N.s. He seeks to fortify this argument by pointing out that it was done at less cost to Equitable by reason of the fact that the per day charges by the practical nurses were less than charges by R.N.s would have been. In essence, this is simply a restatement of the argument already disposed of. It says that the policy covers all services which an R.N. may perform and if another (a practical nurse) performs some of those services, they are covered so long' as a R.N. could have performed them.

This argument by plaintiff ignores the fact that there are substantial differences in qualifications of R.N.s and practical nurses and in what they may do. The latter are spelled out in the following sections, § 335.010.2 being applicable to R.N.s and § 335.010.3 to practical nurses:

Sec. 335.010.2
“A person practices professional nursing who for compensation or personal profit performs, under the supervision and direction of a practitioner authorized to sign birth and death certificates, any professional services requiring the application of principles of the biological, physical or social sciences and nursing skills in the care of the sick, in the prevention of disease or in the conservation of health.”
Sec. 335.010.3
“A person practices as a licensed practical nurse who desires to and does comply with the licensing provisions of this chapter, and who for compensation or personal profit performs such duties as are required in the care of the sick, convalescent, chronically ill or aged or infirm patients and in carrying out such medical orders as may be prescribed by a practitioner authorized to sign birth and death certificates or under the supervision of a registered professional nurse requiring knowledge of nursing procedures, but not requiring the professional knowledge and skills required of the professional nurse, and who is licensed under this chapter.”

In commenting on the role of the practical nurse, E. Hayt, L. Hayt, A. Groeschel & D. McMullan, Law of Hospital and Nurse, 23 (1958), says:

“The fundamental rolé of the licensed practical nurse is to provide nursing care to patients in those instances where the nursing needs do not require the constant attention of the professional nurse.”

This statement is consistent with the language in § 335.010.3 which refers to performance by practical nurses of duties “in the care of the sick, convalescent, chronically ill or aged or infirm” under orders of an R.N. or a doctor, where the professional knowledge and skills of the R.N. are not required. That was the kind of care which Mrs. Moskowitz needed. This is clear from what the practical nurses did and is consistent with the directions and testimony of Dr. Scheff that practical nurses were adequate for her care and that it was not necessary to have R.N.s. If Dr. Scheff had been of the opinion that R.N.S were necessary, it would have meant that nurses were needed who could do things which practical nurses were not authorized to do and in fact were prohibited from doing. Sections 335.020, 335.200. Since he did not deem the services of registered nurses to be necessary, he did not so prescribe. It would be illogical, as well as contrary to the clear language of the policy, to say that under such circumstances there still is coverage, simply because an R.N. could have done those things which the practical nurses did. This is especially true when we consider the fact that the care by practical nurses of convalescent, chronically ill or aged or infirm patients can go on for long periods of time and would materially increase the exposure of the insurer beyond what it would be if coverage is limited to private nursing services by R.N.s when prescribed by the doctor.

As still another basis for construing the policy provision as covering private nursing services by practical nurses, plaintiff calls attention to evidence which he claims demonstrates that Equitable so interpreted its policy. He refers to testimony by Robert Tucker, an officer of Beacon and a grandson of plaintiff, that on a prior occasion Equitable paid to him under the same policy a claim for private nursing services by practical nurses. Those services were for his infant son who suffered from a neurological problem. Nursing care by R.N.s was prescribed as necessary by the attending pediatrician. Practical nurses were secured after efforts to obtain R.N.s were unsuccessful. Equitable concluded to and did pay $252 to Tucker but, in so doing, made clear its position that the policy did not cover such services, that an exception was being made and that no additional exceptions would be made in the future. The company’s letter stated:

“ * * * The group policy provides for private duty nursing services only when they are prescribed as necessary and requires the special skills and knowledge that only a registered nurse (RN) can perform. An LPN does not possess the same knowledge and skills and therefore such services are not intended to be covered within the scope of your group insurance policy.
“However, because of the special circumstances involved here, we are agreeable to allowing benefits on the charges submitted as an exception and with the understanding that no further exceptions will be made under any circumstances for private duty nursing service in the home except that performed by and requiring the special knowledge and skills of a registered nurse..

We conclude and hold that the Tucker incident does not provide a basis for interpreting Equitable’s policy in the manner contended for by plaintiff.

Is plaintiff entitled to recover on a theory that by employing practical nurses when R.N.s were unavailable there has been substantial compliance with the policy provision with reference to private nursing service?

It is plaintiff’s position that he is entitled to recover in this case and that the judgment in his favor should be affirmed, even if we determine that the provision limiting coverage for private nursing service to that provided by R.N.s is plain and unambiguous. He urges that at the outset we were confronted with a threshold issue which was to determine the meaning of the contract. That we have done by holding the policy provision regarding private nursing services to be plain and unambiguous. Having so decided, plaintiff argues that we must now determine whether what occurred should be held to amount to substantial compliance by the insured with the provision as we have interpreted it.

In urging affirmance on the basis of substantial compliance, plaintiff cites the cases of Schoen v. American Nat. Ins. Co., 352 Mo. 935, 180 S.W.2d 57 (banc 1944) and Hoffman v. Mastín, 119 S.W.2d 1027 (Mo.App.1938). He argues that the doctrine of substantial compliance which he urges is consistent with and implicit in these two decisions.

Schoen was a suit to recover on a disability policy which required as a condition precedent to recovery of benefits that the insured personally furnish proof to the company of his disability. The insured became disabled by insanity and was unable to and did not file a proof of disability. Three years later, his guardian filed such proof but the company denied liability for the period preceding the time when proof was filed by the guardian. Citing and relying on Restatement of Contracts, § 301(b), this court concluded that impossibility of performance resulting from insured’s insanity excused insured’s failure to file proof of disability. The opinion pointed out that to hold otherwise would mean that such impossibility of performance would result in a forfeiture with no disability benefits being collected.

In Schoen the insured’s insanity entitled him to disability benefits upon filing the necessary proof. There was no issue of coverage. Failure of compliance related to a purely procedural requirement. The court’s holding merely excused compliance with that procedural requirement on the basis of impossibility of performance. It was not a substantial compliance case and is not authority for utilizing such a doctrine in this case.

Hoffman was a case wherein plaintiff sought recovery under a certificate issued by The National Health Foundation for amounts paid by him for hospitalization of his wife. The certificate sued upon provided as follows:

“All necessary hospital care and treatments (which shall consist of accommodations in rooms with two beds), * * * it

Plaintiff obtained a judgment and defendant appealed. The issues presented on appeal included whether plaintiff should be denied recovery because (1) when his wife became ill, he arranged hospitalization for her instead of contacting the Foundation to do so and (2) there was no proof that the hospital accommodations utilized consisted of a two bed room. In disposing of these issues, the court concluded that by what had occurred the Foundation ratified what plaintiff did in securing hospitalization for his wife and, hence, could not complain that it had not arranged for the hospitalization. With respect to defendant’s contention about noncompliance with the two bed room provision, the court said:

“Defendants contend plaintiff failed to prove that the accommodations for his said wife in the hospital were in rooms with two beds. This point is well taken. It was doubtless the purpose of this provision of the certificate to keep the hospitalization charge within the bounds of the usual and reasonable charge made for service where two patients occupy one room. There is evidence that Leona Hoffman entered Menorah Hospital; that she occupied a room therein; ‘and that the charge therefor was $5 per day. The judgment of the trial court is based on this evidence, and is responsive thereto. There was also evidence that this was a reasonable charge for the service; but nowhere does it appear that this was a two bed room, or a one bed room, or a larger room. * * * Nor was there any evidence offered tending to prove what would be a reasonable amount per day as a charge for hospitalization in a two bed room in Kansas City. * * * But we think plaintiff should have been brought himself within the terms of the contract pleaded, either by showing that the room occupied was a two bed room and that the rate charged therefor was the usual and reasonable rate, or what the value of such service as is mentioned in the contract would have been if such had been furnished by defendants.” 119 S.W.2d at 1030.

The court in Hoffman, having concluded that the record on appeal did not establish whether plaintiff’s wife had or had not occupied a two bed room in the hospital, reversed the judgment and remanded the case, stating that on remand plaintiff should offer proof on that subject. It did go on to say that if plaintiff’s wife had not occupied a two bed room, plaintiff should offer proof as to what the reasonable cost of such a room would have been for the covered period of hospitalization. If what the court said in that regard with reference to approving payment for what would have been the charge for a two bed room is to be regarded as approval of a doctrine of substantial compliance with a policy provision, it should be noted that it was made in a case wherein cost rather than personal service was the issue. It is not a case which sustains a decision in favor of recovery by plaintiff in this case on a theory of substantial compliance.

Plaintiff also relies on four decisions from other states as supporting a finding for plaintiff on a theory of substantial compliance. The cases of McKinney v. American Security Life Insurance Co., 76 So.2d 630 (La.App.1954); Meyers v. Aetna Life Insurance Company, 207 Pa.Super. 526, 218 A.2d 851 (1966) and Hermitage Health and Life Insurance Co. v. Canter, 57 Tenn.App. 532, 420 S.W.2d 654 (1967), involved issues of whether particular hospitals in which insured patients were placed and treated qualified as hospitals within the terms of the policies involved. They resolved such questions as whether there had to be strict compliance with policy provisions which in defining hospitals specified that they must have x-ray equipment or must have R.N.s on duty in the hospital 24 hours a day. In those instances, the courts concluded that the policy definitions of hospitals were intended to limit coverage to institutions generally accepted as meeting the requirements of a place to treat and care for the ill. The fact that a hospital had R.N.S during the day shifts but not at night or that an x-ray machine was not in the hospital (but was available) did not cause the courts to conclude that these institutions were not hospitals. These cases dealt with details of institutional standards. Those questions are not comparable in our judgment with the one presented in this case. We are not persuaded that they are authority for holding that the work done by the practical nurses was substantially equivalent to that which R.N.s would have performed if they had been required and prescribed.

The other out-of-state case cited by plaintiff is Continental Casualty Company v. Summerfield, 87 Nev. 127, 482 P.2d 308: (1971). It did deal with whether the nursing services performed were provided by those nurses specified in the insurance policies. In that case, the policies covered the charge of “a visiting nurse at the residence” and went on to define a visiting nurse as one “accredited by the public health nursing agency located in the community where the Insured resides or is being treated.” The court pointed out that there was no such agency in Nevada to accredit nurses. The power and authority to examine registered nurses and practical nurses was vested in the State Board of Nurse Examiners. The court then concluded, 482 P.2d at 311:

“Since, under Nevada law, all nurses must be qualified and licensed prior to becoming visiting nurses, the placement of such power in an unauthorized agency is a nullity. We hold that a proper and liberal construction of the language of the policies requires the words ‘visiting nurse’ to include any registered or licensed practical nurse qualified under Nevada law. Cf. Buske v. Federal Casualty Co., 200 Wis. 18, 227 N.W. 239 (1929) and Reserve Life Insurance Company v. Marr, 254 F.2d 289, 291 (9th Cir.1958). Any other construction would render the contracts largely meaningless.”

Thus, the court construed the policy provisions as including services of “any registered or licensed practical nurse qualified under Nevada law.” The case was not decided on a theory of substantial compliance. It does not support plaintiff in this case.

Having decided that the policy provision in this case is clear and unambiguous and that plaintiff is not entitled to recover on a theory of substantial compliance, our obligation is to enforce the policy as written. As this court said in State ex rel. Mutual Benefit, Health & Accident Ass’n v. Trimble, 334 Mo. 920, 925, 68 S.W.2d 685, 688 (1934):

“ * * * If, therefore, no ambiguity or conflict existed under the terms of the policy, then a court had nothing to do but enforce the terms of the contract. Such has been the consistent holding of this court. In Prange v. International Life Insurance Co., 329 Mo. 651, 46 S.W.2d 523, loe. cit. 526, 80 A.L.R. 950, this court said: ‘Courts are without authority to rewrite contracts, even insurance contracts, although it may appear that in some respects they operate harshly or inequitably as to one of the parties; they discharge their full duty when they ascertain and give effect to the intentions of the parties, as disclosed by the contract which they have themselves made. Interstate Business Men’s Ace. Ass’n v. Nichols, 143 , Ark. 369, 220 S.W. 477; State ex rel. v. Cox, 322 Mo. 38, 14 S.W.2d 600; State ex rel. v. Trimble, 306 Mo. 295, 267 S.W. 876; State ex rel. v. Trimble, 297 Mo. 659, 249 S.W. 902; Winters v. Insurance Co., 221 Mo.App. 519, 290 S.W. 109.’”

Judgment reversed.

All concur.

      . Beginning January 1, 1972, Beacon discontinued its policy with Equitable and purchased a policy from another company.

      . These, as they existed at the time of this case, are set out in §§ 335.040 and 335.060, RSMo 1969. These were subsequently amended. See RSMo Supp.1975.

      . These, as well as other statutory references, are to RSMo 1969 unless stated otherwise.

      . The testimony discloses that after plaintiffs employment of practical nurses was called to Equitable’s attention and plaintiff and his son-in-law, president of Beacon, were informed that Equitable’s policy did not cover such services, there was discussion of expanding coverage and Equitable offered to write a new policy which would cover private nursing services by both R.N.s and practical nurses, retrospective to the time when plaintiff started hiring practical nurses. However, the premium for such expanded coverage was greater and Beacon never purchased such a policy.

      . Plaintiffs brief speaks of a doctrine of substantial compliance, that language having been used in at least one of the out-of-state cases relied on by plaintiff. He recognizes that it is based upon the doctrine of substantial performance.


author: DOWD, Judge.

text:
    Gloria I. OBERMOELLER, Administratrix of the Estate of Joseph G. Vogel, a/k/a Joseph Vogel, Deceased, Plaintiff-Appellant, v. Delores M. SPECK, Defendant-Respondent.
    No. 37068.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 24, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Nov. 12, 1976.
    Application to Transfer Denied Jan. 10, 1977.
    Warren W. Friedman, Speros B. Boud-oures, St. Louis, Jesse E. Bishop, Clayton, for plaintiff-appellant.
    Robert H. Burns, Clayton, for defendant-respondent.
   DOWD, Judge.

A family dispute. The issue here is whether the defendant exercised undue influence over her father at the time certain savings accounts and funds were transferred into new joint accounts in the names of defendant’s father and defendant. In this court tried case, the trial court found against plaintiff on the issue of undue influence in an action by the Administratrix of the estate of Joseph G. Vogel, deceased, to discover assets. This appeal followed.

The three principal contentions presented are: 1) that the court erred in finding no undue influence on the part of Delores Speck in causing her father Joseph Vogel to transfer assets to joint accounts with right of survivorship; 2) that there was error in admitting in evidence the deposition of Isabelle Timar; and 3) that there was error in the trial court’s ruling that all of the testimony contained in the deposition of Isabelle Timar would be admitted into the record.

In reviewing a court tried matter we review both the law and the evidence, giving due regard to the opportunity of the trial court to judge the credibility of witnesses. Rule 73.01(3). Our Supreme Court recently clarified any confusion as to the scope of our review under this rule. In Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), the court held that the appellate court is to sustain the judgment of a court tried case “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, supra, at 32[1]. In light of this rule of appellate review, we affirm the judgment of the trial court.

The facts are in little dispute. Joseph G. Vogel died intestate on June 11,1971 at age 71. His only heirs at law were four adult children: Gloria I. Obermoeller (plaintiff-appellant here), Donald Vogel, Joyce (also referred to as Joy) Rematkulis, and Delores M. Speck (respondent-defendant herein). Mr. Vogel died of cancer of the esophagus, and suffered a long and painful illness prior to his death. His second wife, Marie Lo-vins, had died in 1967. Before her death she would do much of Mr. Vogel’s paperwork for him since a problem of unsteady hands made it difficult for him to write. This work consisted of her filling out whatever document was under consideration at the time, and Mr. Vogel signing it. Delores M. Speck performed this service for her father after Marie’s death. Delores also “double-checked” the figures from his bank statement against his checking account statement every four or five months, and would run errands for him, including depositing money in his checking account after he had endorsed the checks.

There is little evidence concerning the cordiality between Mr. Vogel and his children, except for Delores. It is clear from the facts that Delores and her husband Stephen Speck had a closer relationship with her father than existed between Mr. Vogel and his three other children. After his wife Marie’s death, Mr. Vogel saw the Specks three or four times a week, whereas a family quarrel kept Mr. Vogel and his son Donald totally estranged from 1967 until 1971, when Mr. Vogel was first hospitalized. After the hospitalization appellant Gloria Obermoeller seems to have renewed her relationship with her father, for until that time there is no record of contact between her and her father, and not much contact even afterwards. Mrs. Isabelle Timar, Vo-gel’s elder sister, testified in her deposition that in 1970 her brother told her he never saw Donald or Gloria but that Delores and Joy came to see him all the time. The facts thus demonstrate that it was Delores Speck and her husband Stephen who were the most devoted to Mr. Vogel. It was they who first noticed that he looked ill, made an appointment with a physician, drove him to the hospital, and paid that portion of the bill for the hospitalization which was not covered by Medicare. They visited him daily during all three periods of his extended hospitalization. Mr. Vogel stayed in Lutheran Hospital for the first time from March 6 to March 12, 1971. Then he stayed at the home of Delores and Stephen from March 12, to April 9, 1971, at which time he returned to Lutheran Hospital until April 22, 1971. While staying with the Specks, Mr. Vogel was an outpatient at Lutheran Hospital. Delores would drive him there for cobalt treatments, alternating this service with Vogel’s other daughter Joy. Delores paid the bill for the cobalt treatments from her own account. Appellant Gloria did not assist in this, nor did she visit her father during his first hospitalization, nor during the three weeks he stayed with the Specks after his first hospitalization. Delores’ family loyalty extended to her father’s invalid sister Isabelle (“Aunt Belle”) Timar in whose house Vogel moved on April 22, 1971, after his second hospitalization. Delores had done all the weekly shopping for Mrs. Timar for the last I2V2 years, whereas the other children did not visit her at all.

The issue of undue influence arises from transactions which occurred on April 22 and 23 of 1971. On these dates Delores and Stephen Speck went to the three savings and loan associations where Mr. Vogel had accounts, obtained withdrawal slips to close the accounts, took them to Mr. Vogel for his signature, returned, closed the accounts, and reopened them in the names of Joseph Vogel and Delores Speck, as joint tenants with the right of survivorship. The total assets amounted to $49,210.16 which included $3,260 cash which the Specks found in a brown envelope in the apartment of Mr. Vogel and deposited in a new account they opened in the name of Delores Speck and Joseph Vogel as joint tenants. Delores’ interrogatories and Stephen’s testimony state that they did this at Mr. Vogel’s direction. On April 22 Vogel moved in with his sister Isabelle and on that afternoon she sat on the bed and listened as Mr. Vogel spoke to Stephen and Delores and directed them to open these joint accounts. Isabelle’s deposition stated that her brother told her to “Stay here” on the bed, implying that he wanted her to witness what he was telling Stephen and Delores. Stephen testified that after Mr. Vogel signed the last withdrawal slip he said, “now that I got this all done let ’em fight,” presumably referring to his other three children. This was corroborated by Isabelle Timar's deposition.

Appellant Gloria Obermoeller came to visit her father both at Isabelle Timar’s and in the Gravois Rest Haven, where he spent the last month of his life. During these visits she would urge her father to make a will to divide his assets evenly five ways, between his four children and his stepson, Marie Lovins’ son. Mrs. Timar testified that when Gloria suggested a will, Mr. Vo-gel replied, “Four years, four years”, which is the amount of time that had elapsed since he had last seen Gloria and her brother Donald prior to his hospitalization. He further told Mrs. Timar frequently as well as Stephen Speck, that he didn’t need to make a will, that it “was all taken care of.”

Appellant’s first argument is that the trial court erred in failing to find that her evidence established the presumption of undue influence. Before this presumption arises, there must be: 1) a fiduciary relation; and 2) some additional evidence from which undue influence may be inferred. Davis v. Pitti, 472 S.W.2d 382, 388[8] (Mo.1971); Steller v. Steller, 401 S.W.2d 473, 478[7] (Mo.1966). Although there is some evidence that Delores Speck was in a fiduciary relation with her father, it is unnecessary that we decide this issue. In accordance with the standard of appellate review of court tried cases previously set forth, we find that there is substantial evidence to support the trial judge’s finding that there was no evidence from which undue influence could be inferred. He claims the court erred in ruling approximately midway through the reading of the deposition, that the court would admit the remaining portions of the deposition regardless of the objections raised by appellant. Appellant fails to point out in the Point Relied On what portion of the deposition was erroneously admitted, and “wherein and why [it is] claimed to be erroneous.” Thus he fails to preserve this contention for appellate review. Rule 84.04(d). However, we note that the trial judge midway through the reading of the deposition stated that he was going to admit the entire deposition but would permit attorneys to make objections. Objections were made and ruled on by the court. Furthermore, even if the entire deposition is excluded, we find there is substantial evidence to support the trial court’s decision. The contention is without merit.

Undue influence is defined “as that influence which, by force, coercion or overper-suasion destroys the free agency of the grantor to act.” Davis v. Pitti, supra, at 387[6]; Metter v. Janssen, 498 S.W.2d 581, 583[2] (Mo.App.1973). There is no trace of “force or coercion” under these facts. Rather, the facts demonstrate that Delores was much more devoted to her father than the other three children. It is perfectly understandable that Mr. Vogel would view Delores as the sole natural object of his bounty. The weight of the evidence leads us to conclude that Mr. Vogel’s decision to have all his assets transferred to joint accounts between himself and Delores was motivated by a genuine preference for her, and not the result of undue influence. This conclusion is buttressed by the additional fact that in 1967 he changed his $1,000 life insurance policy so that the beneficiaries were to be Delores and Stephen Speck. He did the same with a $5000 life insurance policy, although the date of this change is not in evidence. There is no claim that these changes were made as the result of undue influence. Yet, significantly, he excluded his other children and named only Delores and her husband as his beneficiaries.

Appellant challenges the admission into evidence of the deposition of Isabelle Timar on the ground that respondent had not previously established that Mrs. Timar was unable to be in court on that date. Her deposition was taken on June 24, 1974 and read into evidence on October 3, 1974. Rule 57.07(a)(3)(B) authorizes use of depositions for witnesses who cannot be in court due to “age, sickness, [or] bodily infirmity.” The testimony of many witnesses, in addition to the deposition of Mrs. Timar herself, established that Mrs. Timar’s physical infirmities prevented her from appearing in the courtroom, both on the date the deposition was taken and when it was read. She was 76 years old at the time of the deposition, had had infantile paralysis since the age of two, suffered from dropsy, heart trouble, high blood pressure and edema. A nurse came to her home weekly to take her blood pressure. She had only been out of her home three times in the last eleven years, and two of these occasions were trips to the hospital by ambulance. Rule 57.07(b) states that the “facts which would authorize the use of the deposition may be established by the testimony of the deposing witness . . . or by any competent evidence.” The rule was followed and the deposition properly admitted.

Appellant further claims that the deposition was unauthenticated. The transcript reveals that the deposition was duly certified by the deposing reporter. The point is without merit.

Appellant’s final contention also concerns the deposition of Isabelle Timar.

The judgment is affirmed.

CLEMENS, P. J., and STEWART, J., concurs.

      . Section 369.150 RSMo 1969 authorizes the creation of joint accounts with the right of survivorship. In the case of In re Estate of LaGarce, 487 S.W.2d 493, 500-501 (Mo. banc 1972), our Supreme Court upheld this procedure even when used to effect testamentary dispositions outside the statute of wills. As long as there is no “fraud, undue influence, mental incapacity or mistake, the survivor will become the owner of the account.” LaGarce, supra, at 501 [4].

      . The experienced trial judge prepared a detailed and analytical memorandum opinion which discussed the evidence and the reasons for his decision. We found the memorandum opinion very helpful. A portion of this opinion is set out as follows:
      “This Court has an abiding conviction that, assuming for the moment that there was in fact and law a fiduciary relationship between Vogel and his daughter, no undue influence was exercised by the latter on the former, and the Court reaches this conclusion on the weight of the evidence standard as well as the credibility of witnesses norm. In other words, assuming for the moment that the burden was on Speck to disprove undue influence, this Court finds that she did in fact do so, and to hold otherwise would be to cast suspicion on the most innocent transaction between father and child. It is preposterous to postulate a proposition wherein a favorite child of a parent could not obey the wishes and desires of that parent relative to the latter’s disposition of his property without becoming suspect, or being called upon under threat of pernicious mischief and nefarious activity to advance a complete stranger to do the bidding of the father just in order to escape the accusations. This is not the law, nor should it be the law.
      “Throughout the cases cited there runs a strain or pattern of circumstances which the courts consider important i. e. bodily custody of deceased, mental as well as physical weakness of deceased, lack of consideration (love of child not falling within this category), secrecy, etc. On the trial of this case the Court is convinced that Vogel not only knew what he was doing, but wanted to do what he did in fact accomplish and this without any importuning on the part of Speck. His physical and mental apparatus was not so badly impaired; from anyone’s point of view as to deprive him of his prophetic proclamation, ‘now let them fight.’ ”


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jefferson Davidson JONES, Jr., Defendant-Appellant.
    No. 37189.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 28, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Nov. 12, 1976.
    Application to Transfer Denied Jan. 10, 1977.
    Robert C. Babione, Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Charles B. Blackmar, Sp. Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellant appeals from his conviction by a jury in the circuit court of St. Louis City, for the crime of stealing from a person, and a sentence of one (1) year imprisonment. We affirm.

No contention is made that the evidence was insufficient to support the conviction; consequently no narrative is given of the facts.

For reversal appellant contends that the trial court erred (1) by failing to instruct upon his defense of alibi; and (2) by failing to call an instruction conference prior to reading the instructions to the jury.

Instruction MAI-CR 3.20 which is included in the 3.00 series is only required to be given upon request. Rule 20.02(a); State v. Webb, 527 S.W.2d 728, 730 (Mo.App.1975). Appellant’s counsel neither made a request for an alibi instruction nor preserved the issue for review by raising it in his motion for a new trial. Consequently, we find no merit to appellant’s first claim of error because he failed to properly preserve it for review. State v. Stucker, 518 S.W.2d 219, 221 (Mo.App.1975) and see also State v. Newman, 514 S.W.2d 527 (Mo.1974) where the failure to give a required instruction from the 2.00 series was not raised in the motion for a new trial and was held to have not been preserved.

Appellant seeks review of his second claim of error that the court failed to hold an instruction conference, Rule 20.02(f), under our “plain error” rule. Appellant argues that because no instruction conference was held, he had no opportunity to present an alibi instruction. While appellant’s argument is logical, it is not dispositive of the issue. Also we concede that it would make for a more orderly process for the trial court, prior to reading its instructions, to hold an instruction conference.

Rule 27.20(c) is no universal cure-all for every alleged trial court error neither raised in the trial court nor properly preserved for review, or defectively raised or preserved. The touchstone to invoke the doctrine is those errors which the court deems has brought about a manifest injustice or miscarriage of justice as a result of the alleged errors. See State v. Meiers, 412 S.W.2d 478, 481 (Mo.1967).

In this case we find no manifest injustice or miscarriage of justice. Here the police arrested the appellant within five to ten minutes of the purse snatching about three blocks from the scene of the incident. The police also observed appellant either walking at a fast pace or running, either carrying a green shirt under one arm or wearing a green fatigue jacket; saw appellant discard the jacket, and later found the victim’s wallet in the jacket. Both the victim and her companion described appellant as wearing a green army-type jacket, and both identified the recovered green jacket as the one worn by appellant. Thus, we find neither a sound, substantial manifestation of error nor a strong, clear showing, that injustice or miscarriage of justice will result if the plain error rule is not invoked.

Judgment is affirmed.

WEIER, P. J., and RENDLEN, J., concur.


author: SOMERVILLE, Judge.

text:
    Clay Dee OWENS, Plaintiff-Appellant and Cross-Respondent, v. AUTOMOBILE RECOVERY BUREAU, INC., and Winters National Bank and Trust Company, Defendants-Respondents and Cross-Appellants.
    No. KCD 27358.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 4, 1976.
    Application to Transfer Denied Jan. 10, 1977.

      Joseph W. Amick, Kansas City, for plaintiff-appellant.
    Lloyd S. Heilman, Ann M. Whittier, Achtenberg, Sandler, Balkin & Heilman, Kansas City, for defendants-respondents.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Clay Dee Owens (Owens), by way of a petition in two counts, obtained a jury verdict in the amount of $750.00 (Count I) against Winters National Bank and Trust Company (Bank) as compensatory damages for conversion of his 1967 Pontiac automobile and a verdict in the amount of $240.00 (Count II) against Automobile Recovery Bureau, Inc. (Bureau) as compensatory damages for conversion of certain items of personal property claimed to have been present in the automobile.

Cross-appeals were taken, with Owens claiming the trial court erred in refusing to submit the issue of punitive damages as pleaded with respect to both instances of conversion and the Bank and Bureau claiming the trial court erred in overruling their respective motions for judgment notwithstanding the verdict because (1) Owens failed to make a submissible case of conversion with respect to either the automobile or the items of personal property claimed to have been present therein and (2) Owens was not the real party in interest since he filed a voluntary petition in bankruptcy after the instant action was commenced.

In March of 1971, Owens, who at that time was a resident of Ohio, obtained a loan from the Bank, a national bank with its main banking house located in Dayton, Ohio. A promissory note and security agreement were executed by Owens in favor of the Bank; the security agreement listed a 1967 Pontiac automobile owned by Owens as collateral. Both Ohio and Missouri had previously enacted the Uniform Commercial Code.

In November of 1971 Owens moved to Kansas City, Missouri, taking the 1967 Pontiac automobile with him. In the summer of 1972 several of the scheduled payments due the Bank were delinquent. The Bank made arrangements with the Bureau, a Missouri corporation, to act as its agent, and directed it to repossess the automobile. However, instead of repossessing the automobile, the Bureau merely located and contacted Owens, made arrangements with and permitted him to pay the scheduled amounts that were in arrears, and permitted him to retain possession of his automobile. Shortly thereafter the Bureau submitted a bill to the Bank in the amount of $130.15 for the services just mentioned which the Bank refused to pay until March 13, 1973. Evidence existed to support a finding by the jury that the Bank initially refused and delayed payment of the Bureau’s bill for the reason that it deemed the charge to be unreasonable.

In February of 1973 the final three payments due the Bank under Owens’ promissory note became delinquent. The Bank made arrangements with the Bureau to act as its agent for the purpose of repossessing Owens’ 1967 Pontiac automobile. The Bureau effected peaceful repossession of Owens’ 1967 Pontiac automobile the night of March 7, 1973, or the early morning of March 8, 1973. This was accomplished by the Bureau engaging a towing service which removed Owens’ 1967 Pontiac from a public street in front of his place of residence. Owens had parked his Pontiac automobile on the public street during the late afternoon or early evening of March 7, 1973, and first noticed that it was gone the following morning. The towing service took Owens’ automobile to its unfenced storage lot where it was kept the remainder of the night. The following day the towing service delivered Owens’ automobile to the Bureau at the latter’s fenced storage lot.

On March 9, 1973, Owens contacted the Bureau at its storage lot for the purpose of redeeming his Pontiac automobile. The president of the Bureau informed Owens that the Bureau would not relinquish possession of the automobile unless Owens paid $252.00, the unpaid principal and accrued interest due and owing on the note, $92.00 incurred for repossession of the automobile, and the $130.15 heretofore mentioned which the Bureau had previously billed the Bank for. No prior demand had ever been made on Owens to pay the $130.15. Owens “offered” to pay $344.00 ($252.00 plus $92.00) to redeem his automobile but refused to pay the additional $130.15 demanded by the Bureau. Owens contended that he did not owe the $130.15 because it was both unreasonable and totally unrelated to repossession of his automobile. The Bank had directed the Bureau not to relinquish possession of the automobile to Owens unless he paid the $130.15 in addition to the $344.00. The Bureau refused to relinquish possession of the automobile to Owens, as directed by the Bank, unless he paid the amount of $474.15. Although Owens did not physically proffer $344.00 in legal tender to the Bureau at the time, evidence is contained in the record from which the jury could reasonably find that he was able and willing to do so within the redemption period.

The following day Owens returned to the Bureau’s lot to obtain possession of certain items of personal property owned by him and which he claimed were in his automobile when it was repossessed. The Bank neither had nor claimed any security interest in these items of personal property. Owens claimed that said items of personal property (a tool box and tools, and a number of tape cassettes) were in his automobile when he parked it on the public street in front of his house. The president of the Bureau and two of its employees testified that they never saw the tool box, tools, or tape cassettes at any time in Owens’ automobile and had no knowledge of their whereabouts. Moreover, Owens was freely allowed to inspect his automobile at the Bureau’s lot and was permitted to remove and take all other items of personal property found therein at the time.

On appeal Owens does not question the Bank’s right to have repossessed his automobile at the time or the manner in which it was done, nor does he claim that it was guilty of conversion when it did so. He contends, however, that the Bank unlawfully converted his automobile when it refused to permit him to redeem it unless he paid the sum of $130.15 heretofore referred to in addition to the unpaid principal and accrued interest due and owing at the time ($252.00) and the expense incurred in repossessing the automobile ($92.00). The Bank contends that conversion of the automobile did not occur, as and when contended by Owens, because he failed to comply with Section 9-506 of the Uniform Commercial Code (hereinafter referred to as Section 400.9-506, RSMo 1969) which exclusively governed his right to redeem the automobile. Section 400.9-506, supra, reads as follows:

“Debtor’s right to redeem collateral
At any time before the secured party has disposed of collateral or entered into a contract for its disposition under section 400.9-504 or before the obligation has been discharged under section 400.9-505(2) the debtor or any other secured party may unless otherwise agreed in writing after default redeem the collateral by tendering fulfillment of all obligations secured by the collateral as well as the expenses reasonably incurred by the secured party in retaking, holding and preparing the collateral for disposition, in arranging for the sale, and to the extent provided in the agreement and not prohibited by law, his reasonable attorney fees and legal expenses.”

On appeal the parties have assumed, sub silentio, that Missouri law controls with respect to the legal meaning to be ascribed to the above mentioned section of the Uniform Commercial Code, as evidenced by the fact that they rely upon Missouri cases to advance and support their respective positions. This court has no way of knowing whether the parties advertently or inadvertently made this assumption because they failed to cite any authority or advance any arguments whatsoever to support its legal correctness. This court will proceed to construe the above mentioned and pivotal section of the Uniform Commercial Code and the respective arguments tendered by the parties on the bases of Missouri case law, parenthetically noting that legal justification for doing so (but expressly refraining from deciding) appears to lie in Section 400.9-102(1), RSMo 1969. In this connection see: Associates Discount Corp. v. Cary, 47 Misc.2d 369, 262 N.Y.S.2d 646 (Civ.Ct.1963) and Weintraub, Choice of Law In Secured Personal Property Transactions: The Impact Of Article 9 Of The Uniform Commercial Code, 68 Mich.L.Rev. 684 (1969-1970).

The Bank argues that since its initial possession of Owens’ automobile was lawful [Section 400.9-503, RSMo 1969] it continued to be lawful because Owens did not tender “fulfillment of all obligations secured by the collateral as well as the expenses reasonably incurred by the secured party in retaking, holding and preparing the collateral for disposition, [and] in arranging for the sale . . prescribed by Section 400.9-506, supra, as a condition to his right of redemption. Stated more definitively, the Bank submits that Owens’ “offer to pay" all sums claimed due and owing to the Bank and the Bureau except the $130.15 did not legally measure up to “tendering fulfillment” of the matters specified in Section 400.9-506, supra, and therefore he was not entitled to redeem the automobile and possession thereof by the Bureau acting as agent for the Bank continued to be lawful. The Bank contends that nothing short of tender in the strict legal sense could suffice, regardless of all else, because recognition of the concept of waiver of tender in the context of Section 400.9-506, supra, would inevitably work havoc in the marketplace. The inevitability of havoc in the marketplace has not been demonstrated with any force of logic or reason; it has merely been assumed by the Bank. In order to succumb to this assumption, this court would have to ignore even the most basic concepts of fairness and justice and summarily hold that the various provisions of the Uniform Commercial Code must inevitably be construed in favor of a secured party and against the debtor. The judicial process is more demanding if justice is to be served.

Owens counters the position taken by the Bank by arguing that “tendering” in Section 400.9-506, supra, is used in the sense that attaches to “tender” in the common law and carries with it all the peripheral common law principles that are associated with it, including waiver of tender, since the term is not otherwise defined in the Uniform Commercial Code. His position finds support in Section 400.1 — 103, RSMo 1969: “Unless displayed by the particular provisions of this Act, the principles of law and equity, . . . shall supplement its provisions.” The Bank has failed to cite, and this court has been unable to find, any particular provision of the Uniform Commercial Code which could be said to have “displaced” the application of common law principles with respect to the scope and meaning of tender as used in Section 400.9-506, supra. Although dealing with the application of pertinent common law principles other than tender, the following cases from other jurisdictions which have adopted the Uniform Commercial Code allay any doubt that obtaining common law principles in this state relative to tender are controlling and decisive: Central Nat. B. & T. Co. of Enid v. Community B. & T. Co., 528 P.2d 710 (Okl.1974); Levin v. Nielsen, 37 Ohio App.2d 29, 306 N.E.2d 173 (1973); Gorge Lumber Company v. Brazier Lumber Company, 6 Wash.App. 327, 493 P.2d 782 (1972); Chicago Roller Skate Mfg. Co. v. Sokol Mfg. Co., 185 Neb. 515, 177 N.W.2d 25 (1970); and In re Mel Golde Shoes, Inc., 403 F.2d 658 (U.S.C.A. 6th Cir. 1968). Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909, 912 (1935) constitutes broad general support for the conclusion reached: “ Tt is a familiar rule of construction that where a statute uses words which have a definite and well known meaning at common law it will be presumed that the terms are used in the sense in which they were understood at common law, and they will be so construed unless it clearly appears that it was not so intended.’ ” Therefore, the case law of this state is deemed controlling and decisive as to the scope and meaning of tender as used in Section 400.9-506, supra.

Waiver of tender, firmly entrenched in the law of this state, finds clarity of expression in Miran Investment Co. v. Medical West Building Corp., 414 S.W.2d 297, 303-304 (Mo.1967): “ ‘tender is waived where the tenderee . . . takes any position which would render a tender, so long as the position taken by him is maintained, a vain and ideal (idle) ceremony . ’ ”. See also: Citizens State Bank of Nevada v. Wales, 469 S.W.2d 750, 757 (Mo.App.1971); Huth v. Picotte, 154 S.W.2d 382 (Mo.App.1941); and Leesburg State Bank & Trust Co. v. Merchants Bank of Kansas City, 142 S.W.2d 94 (Mo.App.1940). The Bank’s unyielding and undeniable insistence that Owens pay the $130.15 in addition to the unquestioned and admittedly owed sum of $344.00 before it would permit him to redeem his automobile amounted to a waiver by them of tender in the strict legal sense of the latter amount. The $130.15 may be fairly and accurately described as an expense incurred by the Bank for servicing the loan it made to Owens. In any event, it was not an “obligation secured by the collateral”, or an expense “reasonably incurred by the secured party in retaking, holding and preparing the collateral for disposition”, or “in arranging for the sale”, or “reasonable attorneys’ fees”, or “legal expense” within the. purview of Section 400.9-506, supra. For all practical purposes the Bank was attempting to hold Owens’ automobile as collateral for a charge incurred by Bank and owed to the Bureau for servicing the loan, same constituting a charge nowhere to be found in Section 400.9-506, supra. The Bank’s adamant insistence on exacting this non-legitimate charge from Owens before it would permit him to redeem his automobile as provided in Section 400.9-506, supra, effectively excused or waived any obligation on Owens’ part to tender in the strict legal sense the amount he legitimately owed.

The Bank appears to subordinately argue that notwithstanding a waiver of tender, Owens bore, but failed to carry, the burden of proving that he was able and willing to discharge all proper financial obligations imposed by Section 400.9-506, supra. As pointed out in Defeo v. Goodwin, 221 Mo.App. 789, 287 S.W. 1075, 1079 (1926), a party relying upon waiver of tender, with certain exceptions, must nevertheless show that he is “able” and “willing” to perform at the required time. The evidence in this case was sufficient to present a question of fact for the jury regarding Owens’ ability and willingness to perform at the required time.

The apical question of whether the heretofore iterated conduct of the Bank amounted to a conversion of Owens’ automobile is now reached. This court concludes that there was ample evidence to support the jury’s verdict that it did. Hornsby v. Knorpp, 207 Mo.App. 302, 232 S.W. 776 (1921) dealt with substantially the same issue. The principal distinguishing feature between Hornsby and the instant case being that the former dealt with a pledge agreement as opposed to a security agreement. The corollary and pervasive relevancy of Hornsby merits quoting from it, l. c. 781 — 782, at some length:

“Appellants contend that they cannot be held guilty of a conversion of the collateral, as for a wrongful refusal to return it on demand, in the absence of a valid tender by plaintiffs of the amount due upon the original notes, and that there was no valid tender by plaintiffs for the reason that the so-called tender consisted of ‘chips and whetstones,’ included notes signed by Wm. J. Knorpp, in which the other defendants were in no way interested, and included the Crow note, which, it is said, had been paid. But whatever may be said of this tender we regard it as clear that the attitude assumed by the defendants, through their representative, Wm. J. Knorpp, was such as to make any further tender unnecessary. When plaintiffs undertook to make the aforesaid tender they were at once informed in substance, that defendants would not surrender the notes and collateral upon a payment of the original indebtedness, but would hold the collateral to satisfy unsecured claims of the defendants against the Munroe estate. The position thus taken by defendant was such as to render a proper tender, if made, a vain and idle ceremony, and hence dispensed with the necessity of making such tender. See Hurt v. Cook, 151 Mo. 416, 52 S.W. 396; Westlake & Button v. City of St. Louis, 77 Mo. 47, 46 Am.Rep. 4; Deichmann et al. v. Deichmann, 49 Mo. 107; 33 Cyc. 134. These defendants then placed themselves in the position of wrongfully withholding the collateral for an unlawful purpose, and we think that the trial court committed no error in holding that they were guilty of a conversion thereof.”

See also: Charles F. Curry and Company v. Hedrick, 378 S.W.2d 522, 532 (Mo.1964) and Diehr v. Thompson Chemicals Corp., 281 S.W.2d 572, 579 (Mo.App.1955).

Attention now focuses on the sufficiency of the evidence to support the jury’s verdict that the Bureau converted certain items of personal property in which no security interest was claimed (Count II of Owens’ petition). There is a paucity of evidence that any officer, employee or agent of the Bureau ever came into possession of any such items of personal property. Viewed from the standpoint most favorable to Owens, the record discloses nothing more than the fact that Owens testified that the items of personal property were in the trunk and interior of his automobile when he parked it on the public street prior to the time it was repossessed. There is not a scintilla of evidence that any agent or employee of the towing service engaged by the Bureau ever saw or was aware of the alleged presence of said items of personal property in the automobile, or that any officer or employee of the Bureau ever saw or was aware of the alleged presence of said items of personal property in the automobile. On the other hand, employees of the Bureau testified without contradiction that when Owens came to the Bureau’s storage lot and requested return of all items of personal property in his automobile they gave him full access to the vehicle and all items of personal property therein at the time were removed by Owns. The items of personal property in issue were nowhere to be found. There is not a scintilla of evidence that any employee of the towing service or any officer or employee of the Bureau ever removed any items of personal property from the automobile.

Owens, at best, has only the inference that the items of personal property were in the automobile when it was repossessed to rely upon. Standing alone, as it does, it fails to constitute substantial evidence that the Bureau converted the items of personal property in question. As held in Sparks v. Purdy et al., 11 Mo. 142, 145-146 (1847), “[t]he bare removing of one’s chattel from one spot to another, without denying his ownership, but on the contrary acknowledging it, cannot be a conversion . [i]t is neither a deprivation of the owner’s right, nor is it the use, enjoyment, change or destruction of the property.” The same principle is reasserted in Niemetz v. St. Louis Ag. & Mec. Ass’n, 5 Mo.App. 59, 63 (1878), “The mere wrongful asportation of a chattel does not amount to a conversion, unless the taking or detention of the chattel is with intent to convert it to the taker’s own use, or that of some other person; . . .’’No later cases have been found which articulate so clearly this fundamental principle of the law of conversion. The inference that the items of personal property were in Owens’ automobile when it was repossessed, which is all Owens has to rely upon, is too frail to support the verdict returned by the jury. A total evi-dentiary void exists with respect to proof that the Bureau ever denied Owens’ ownership of the claimed items of personal property or that it took or detained any such items with intent to convert them to its own use; on the other hand, by way of the testimony of certain officers and employees of the Bureau, exactly the opposite is borne out by the evidence.

The Bank and Bureau contend that the judgment in favor of Owens upon both counts of his petition should be reversed outright because he was not “the real party in interest” within the meaning of Rule 52.01 and therefore had no right to prosecute the action. They postulate this contention on the fact that after suit was commenced, but before it was finally adjudicated, Owens filed a voluntary petition in bankruptcy. Relying upon 11 U.S.C.A., Section 110(a), they argue that Owens’ cause of action for conversion under both counts of his petition was vested in the trustee in bankruptcy by operation of law. Owens' commencement of the conversion action prior to the time he voluntarily filed a petition for bankruptcy is a significantly controlling fact. The trustee in bankruptcy in the instant case never attempted to intervene, file a separate suit, or demand abatement of the action brought by Owens. In view of the overwhelming weight of authority at the federal level, infra, this court is constrained to hold that Owens was “the real party in interest” and had the right to prosecute the action to a final judgment. There can be no question that he was the real party in interest when the action was commenced. 11 U.S.C.A., Section 29(c), which permits the trustee in bankruptcy, “with the approval of the court”, to “prosecute as receiver or trustee any suit commenced by the bankrupt prior to the adjudication”, has been construed to mean that although the trustee has a right to intervene in such a case and to be substituted for the plaintiff-bankrupt, the trustee is not obligated to intervene, and in the event he does not a suit or cause of action commenced by a plaintiff-debtor will not abate and prosecution of such action may be continued by the plaintiff-debtor. Meyer v. Fleming, 327 U.S. 161, 66 S.Ct. 382, 90 L.Ed. 595 (1946); In re Prudence Co., 96 F.2d 157 (C.C.A. 2d Cir. 1938); and D & D Co. v. Clapper, 87 F.Supp. 365 (D.C.W.D.Mo.1949). Since it is manifestly obvious that Owens was the real party in interest when the action was commenced, he remained the real party in interest since the trustee in bankruptcy made no effort to intervene.

Having ruled all points raised by the Bank and Bureau, with the end result that Owens was the real party in interest and made a submissible case against the Bank for conversion of his automobile but not as against the Bureau for conversion of certain items of personal property claimed to have been present in the automobile, it now becomes necessary to decide whether Owns was entitled to have the issue of punitive damages submitted to the jury with respect to conversion of his automobile by the Bank.

Proof of malice is a requisite for submission of punitive damages. However, it is not necessary that there be evidence that the wrongdoer was actuated by personal ill will or spite to support the submission of punitive damages; evidence of legal malice, the intentional doing of a wrongful act without just cause or excuse, is sufficient. Pashalian v. Big-4 Chevrolet Company, 348 S.W.2d 628 (Mo.App.1961) and Davis v. Nash Central Motors, 332 S.W.2d 475 (Mo.App.1960). The very nature of the evidence which this court heretofore concluded supported submission of the issue of conversion of Owens’ Pontiac automobile by the Bank, likewise supported submission of the issue of punitive damages against the Bank with respect to conversion of said automobile. To hold otherwise would be legally inconsistent and patently contradictory.

Count I (conversion of the automobile) was pleaded and submitted to the jury solely against the Bank. Owens seeks remand of the case for trial solely on the issue of punitive damages against the Bank. The propriety of remanding the case for trial limited to the issue of punitive damages has not been briefed by either party. Nevertheless, it poses a serious question from the standpoint of appellate disposition which cannot be avoided. As stated in 85 A.L. R.2d 9, 26, “[t]he prime requisites for the limitation of a new trial in a tort action to the issue of damages . . . are (1) that the issue of damages be entirely separate and distinct from the issue of liability . (2) that the liability of the defendant be definitely established ... (3) that such limitation will not operate to the prejudice of the defendant . . . [and] furthermore, that the power to limit the new trial to the issue of damages must be exercised with caution, and it has been held that any doubt as to the propriety of such limitations must be resolved against it.”

The Supreme Court of this state on two occasions has emphasized the controlling significance of requisite (1), supra, where both compensatory and punitive damages were sought. Ackmann v. Kenney-Toelle Real Estate Company, 401 S.W.2d 483 (Mo. banc 1966), was an action by homeowners against a real estate company and contractor for damages for fraudulent misrepresentations in the sale of a home. Both compensatory and punitive damages were prayed for. Defendants appealed from a judgment awarding plaintiffs both compensatory and punitive damages. The court of appeals remanded the case for a new trial on the issue of damages only. The case was transferred to the Supreme Court on application of the defendants. The Supreme Court remanded the case for trial on all the issues and, in doing so, held, 1. c. 490: “. the amount of punitive damages depends on consideration of the merits of the case [w]e do not see how the jury could properly determine the amount of punitive damages without hearing the evidence on all issues.” Panjwani v. Star Service & Petroleum Company, 395 S.W.2d 129 (Mo.1965), was an action for assault and battery wherein the plaintiff sought compensatory and punitive damages. All the parties filed motions for a new trial and the trial court granted plaintiff a new trial “on the sole issue of damages”. The Supreme Court reversed and remanded the case for a new trial on all the issues. In doing so, it stated, 1. c. 133: “. . .it would appear to be impossible for the jury to adequately appraise the claim of damages, especially punitive damages, without full proof of all facts necessary to establish liability for the basic tort in the first instance.” In the instant case, proof of malice, a requisite for the submission of punitive damages, is inextricably tied up with proof of the conversion of Owens’ automobile because both, for the most part, necessarily entail consideration of the same evidence. In view of Owens’ prayer to have the case remanded for trial on the issue of punitive damages this court is constrained to hold that Ackmann and Panjwani dictate that the case should be remanded for trial on all the issues since it would be impossible for a new and different jury to adequately appraise his claim for punitive damages without fully hearing all the facts necessary to prove conversion of his automobile by the Bank.

The trial court entered judgment on the verdict returned by the jury upon Count I (conversion of the automobile) in favor of Owens and against both the Bank and the Bureau, although, as previously noted, Count I was pleaded and submitted to the jury solely against the Bank. The judgment below in favor of Owens upon Count I of his petition for compensatory damages only is reversed as to both the Bank and the Bureau, and the cause is remanded for trial upon Count I (conversion of the automobile) against the Bank alone on all issues; the judgment below in favor of Owens and against the Bank and Bureau upon Count II (conversion of certain items of personal property, also erroneously entered against both, although pleaded and submitted to the jury solely against the Bureau) is reversed.

All concur.

      . The legal correctness of the instructions tendered by Owens and refused by the trial court re punitive damages has not been questioned.