text:
    WORLEY HOSPITAL, INC., Appellant, v. Sylvia CALDWELL et vir., et al., Appellees.
    No. 8500.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 31, 1975.
    Rehearings Denied Nov. 24, 1975.

      Anderson, Henley, Shields, Bradford & Pritchard, L. W. Anderson, Dallas, for appellant.
    Buzzard & Comer, Ross N. Buzzard, J. B. Maguire, Jr., Pampa, Stokes, Carnahan & Fields, Richard E. Stokes, Jr., Amarillo, for appellees.
   ROBINSON, Justice.

Plaintiff Sylvia Caldwell sued her surgeon, Dr. C. F. Sparger, and Worley Hospital, Inc., for damages resulting when a lap sponge, approximately 16 inches square and containing 5 or 6 thicknesses of gauze, was left in her abdomen when the incision was closed following surgery by Dr. Sparger in the Worley Hospital. A jury found that Dr. Sparger was not negligent in failing to see the lap sponge when looking into plaintiff’s abdomen before closing; that negligence of the assisting nurses in failing to make a correct lap pack count was a proximate cause of the injury; and that the nurses were not borrowed servants of Dr. Sparger. The trial court entered judgment for plaintiff against the defendant hospital.

The hospital appeals contending that Dr. Sparger is liable for the negligence of the assisting nurses; that the evidence is legally and factually insufficient to support jury findings that the doctor was not negligent and that the nurses were not borrowed employees of Dr. Sparger; and that the court failed to correctly charge the jury concerning the standard of care applicable to nurses and hospitals. By cross point appellee-plaintiff seeks judgment against Dr. Spar-ger. Affirmed in part. Reversed and rendered in part.

The first question is whether the surgeon is liable for the assisting nurses’ negligent failure to make a correct sponge count.

In Harle v. Krchnak, 422 S.W.2d 810 (Tex.Civ.App. — Houston [1st Dist.] 1967, writ ref’d n. r. e.), the court, on facts similar to those before us, held that the operating surgeon was liable for the negligence of nurses assisting him in the operation although they were employed by the hospital and paid by it. In McKinney v. Tromly, 386 S.W.2d 564 (Tex.Civ.App. — Tyler 1964, writ ref’d n. r. e.), a case involving the negligent administration of an anesthetic, the court stated that it had no difficulty in finding that the nurse, although in the general employ of the hospital, was an employee of the surgeon while in the operating room and under his control. The court in McKinney quoted with approval the language of the Supreme Court of Pennsylvania in McConnell v. Williams, 361 Pa. 355, 65 A.2d 243 (1949), as follows:

. And indeed it can readily be understood that in the course of an operation in the operating room of a hospital, and until the surgeon leaves that room at the conclusion of the operation, . he is in the same complete charge of those who are present and assisting him as is the captain of a ship over all on board, and that such supreme control is indeed essential in view of the high degree of protection to which an anaesthe-tized, unconscious patient is entitled,

The Texas Supreme Court in Webb v. Jorns, 488 S.W.2d 407, 411 (Tex.1972), cited McKinney v. Tromly, supra, with approval in an opinion holding the physicians liable for negligence of the anesthetist and also, noting that the physicians in that case conceded that they were subject to vicarious liability in the event of a finding of liability on the part of persons under them in the operating room. See also Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933 (1953).

Further, Dr. Sparger testified that he was in charge, medically speaking, of the nurses, technicians, and anesthetist and that the process of operating was a part of the practice of medicine. The nurses testified that they were to follow the doctors’ orders and that the hospital rules required that a registered nurse supervise the sponge count and actually do a portion of it.

We conclude that, under the undisputed evidence in this case and as a matter of law, Dr. Sparger had such control of the nurses in the operating room as to render him liable for their negligence in making an incorrect sponge count.

We next consider whether the conclusion that the doctor is liable for the negligence of the nurses in the operating room as “captain of the ship” precludes a finding that the hospital is also liable. This question was decided by the Supreme Court of Pennsylvania in Tonsic v. Wagner, 458 Pa. 246, 329 A.2d 497 (1974). The court, after commenting that prior to its decision abolishing charitable immunity it had had no occasion to consider the issue, expressly held that the use of the captain of the ship analogy in McConnell v. Williams, supra, did not mean that only the operating surgeon could be liable for the negligence of hospital employees. It held that a person may be at the same time the agent both of an operating surgeon and of a hospital even though the employment is not joint. The court said:

. Hospitals, as well as the operating surgeons, owe a duty to the patient. If that duty is breached under circumstances from which a jury could reasonably conclude that the negligent party was at the same time the servant of two masters, both masters may be liable.

Although ordinarily the control which a master can properly exercise over the conduct of the servant will prevent simultaneous service to two independent masters, nevertheless, Texas courts recognize that the same act may be done in the service of two masters where both have the requisite control and the act is within the scope of his service to both.

In Heitkamp v. Krueger, 265 S.W.2d 655, 659 (Tex.Civ.App. — Austin 1954, writ refd n. r. e.), the court quoted with approval 57 C.J.S. Master and Servant § 566, p. 290, as follows:

Under some circumstances both the lender and borrower may have control over the servant so as to render each of them liable for his conduct, for he may have been transferred to carry on work which is of mutual interest to them and to effect their common purpose, so that his service to one does not involve abandonment of his service to the other.

In Western Union Telegraph Co. v. Rust, 55 Tex.Civ.App. 359, 120 S.W. 249 (1909, writ ref’d), the jury found and the court held that a messenger boy was the servant of both Western Union Telegraph Company, which was in the business of sending and receiving telegrams, and of American District Telegraph Company, which rented office space from Western Union and furnished messenger boys to it, and that both were liable for the negligence of the messenger boy in knocking down a man with his bicycle when carrying a package for Western Union.

Likewise, in Moreman v. Armour & Co., 65 S.W.2d 334 (Tex.Civ.App. — Amarillo 1933, writ ref d), and American Express Co. v. Chandler, 215 S.W. 364 (Tex.Civ.App.— Texarkana 1919), reversed on other grounds, 231 S.W. 1085 (Tex.Comm’n App. 1921, holding approved), the courts held independent employers liable for the negligence of joint servants.

The general principle of agency law is stated in The Restatement (Second) of Agency § 226 (1958), as follows:

A person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other.

In a case analogous to the one before us, a guard, employed by a security service and furnished to a rental store, received orders from both and was held to be the servant of both. The court, citing the Restatement rule, held both the security service and store liable for the tortious conduct of the guard. Nash v. Sears, Roebuck and Company, 383 Mich. 136, 174 N.W.2d 818 (1970).

In the malpractice case of Voss v. Bridwell, 188 Kan. 643, 364 P.2d 955, 967 (1961), the cause of action arose from the administration of an anesthetic for surgery by a resident physician. The court held that the pleadings stated a cause of action both against the anesthesiologist, who furnished and had supervision and control of the resident physician, and against the surgeon, as well as against the resident physician. The court said, “Under the doctrine of responde-at superior a person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other.”

The evidence in the case before us concerning the exercise of control by the hospital over the operating room nurses is undisputed. The nurses were employed, paid, and instructed by the hospital. Not only the end to be accomplished, but the details of their performance were covered by the hospital manual covering “Operating Room Nursing Duties.” The only reasonable conclusion from the undisputed evidence is that the hospital exercised control, concurrent with the control by the surgeon, of the nurses in the operating room and that their service to the surgeon did not conflict with or constitute an abandonment of their service to the hospital.

We conclude that in making the sponge count the nurses were the servants of both Dr. Sparger and Worley Hospital, and that both masters are liable for negligence of the nurses in making the count.

Appellant hospital contends that the court’s charge erroneously states the standard of care to be exercised by the hospital and its nurse employees. The charge uses the standard of “a person of ordinary prudence” in defining “negligence” and “ordinary care.”

The jury found that the operating room nurses failed to make a correct sponge count. The evidentiary support for that finding is not challenged. There is no evidence which would justify the failure to make a correct count. The doctor relied on the count. It necessarily follows that the failure to make a correct count was negligence and a proximate cause of the failure to remove the sponge from plaintiff’s body. Earle v. Krchnak, 422 S.W.2d 810 (Tex.Civ.App. — Houston [1st Dist.] 1967, writ ref’d n. r. e.). Moreover, the standard of care charged, under the particular facts of this case, was more favorable to appellant than that requested, it being unreasonable to assume that trained nurses would have a lesser duty to count sponges correctly than a “person of ordinary prudence.” We do not find that the definitions given were reversible error under the facts of the case before us.

The trial court did not err in excluding testimony, standing by itself, that it was Dr. Sparger’s personal practice in other places to X-ray after surgery. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949); Webb v. Jorns, supra. Even if the testimony were admissible, the exclusion of the testimony was not calculated to cause the rendition of an improper verdict.

Dr. Sparger’s statement to the nurse, “Mrs. Holland, we are in trouble,” when he told her that a sponge had been left in plaintiff, was properly excluded by the trial judge. The statement is not admissible as a conclusion of liability. Isaacs v. Plains Transport Co., 367 S.W.2d 152 (Tex.1963). The fact that the sponge was left in the plaintiff is not controverted.

Counsel’s question to the nurse concerning whether the hospital could require a final sponge count did not violate the court’s ruling on a motion in limine excluding evidences of changes in hospital procedure after the operation in question and was properly allowed.

The failure to mark as exhibits a piece of white cloth surrounded by hemostats and various surgical instruments used by Dr. Sparger in demonstrating the nature of the surgery to the jury could not affect the proper presentation on appeal of the questions that are dispositive of this case and, thus, is not reversible error.

We have considered all of the evidence and are of the opinion that there is sufficient evidence to support the jury finding that Dr. Sparger, himself, did not fail to exercise ordinary care when looking into plaintiff’s abdomen before closing and that the finding is not against the great weight and preponderance of the evidence. Nevertheless, as heretofore held, Dr. Sparger is liable for the negligence of the operating room nurses.

We do not reach appellant’s other points of error.

It is stipulated that any judgment against the hospital is subject to a credit in the amount of $2,033.77, the amount remaining unpaid on plaintiff’s hospital bill.

The portion of the trial court judgment granting plaintiff recovery against Worley Hospital, Inc. is affirmed. The portion of the judgment denying recovery against Dr. C. F. Sparger is reversed. Judgment is here rendered for plaintiff against Worley Hospital, Inc. and Dr. C. F. Sparger jointly and severally for $21,644.90 with credit to Worley Hospital, Inc. for $2,033.77.


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    FORT WORTH LLOYDS, Appellant, v. Suttle PURCELL, Appellee.
    No. 4832.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 7, 1975.
    Rehearing Denied Nov. 28, 1975.
    Brad Crawford, Jr., Crenshaw, Dupree & Milam, Lubbock, for appellant.
    William E. Fulbright, Cayton, Gresham & Fulbright, Lamesa, for appellee.
   WALTER, Justice.

Suttle Purcell recovered a judgment against Fort Worth Lloyds on a Texas Standard Fire Policy for $6,000. Lloyds has appealed.

Purcell’s building in Lamesa was damaged by an explosion on the premises adjacent to his on April 4, 1970.

Purcell pleaded that he had complied with all the conditions precedent to a recovery on the policy and with all of its terms and conditions. He further alleged:

“. . .In the event it should be found that any conditions precedent or requirements of said policy were not complied with, which is denied, then same were waived by the Defendant.”
Rule 94, T.R.C.P. is in part as follows:
“. . . Where the suit is on an insurance contract which insures against certain general hazards, but contains other provisions limiting such general liability, the party suing on such contract shall never be required to allege that the loss was not due to a risk or cause coming within any of the exceptions specified in the contract, nor shall the insurer be allowed to raise such issue unless it shall specifically allege that the loss was due to a risk or cause coming within a particular exception to the general liability; provided that nothing herein shall be construed to change the burden of proof on such issue as it now exists.”

Lloyds did not plead any of the exceptions in its policy which would limit its general liability for loss caused by the general hazards covered by the policy as required by Rule 94, T.R.C.P.

During the trial, Lloyds sought to file a trial amendment. It sought to plead the provision of the policy under “Basic Conditions” dealing with pro rata liability and the provision of the policy under Specific Coverage conditions applicable only to extend coverage as follows:

“. . . ‘This company shall not be liable for a greater proportion of any loss from any peril included in this coverage than the amount of insurance under Coverage “F, Fire”, of this policy bears to the whole amount of fire insurance covering the property.’ ”

Lloyds’ request to file a trial amendment was denied. Its request to withdraw its announcement of ready was also denied. Purcell offered into evidence only the first page of the policy. Lloyds offered the entire policy in evidence. The court admitted the policy with the exception of the coinsurance or pro rata insurance provisions which would have limited Lloyds’ general liability for loss caused by the general hazards covered by the policy.

In T. I. M. E., Inc. v. Maryland Casualty Company, 157 Tex. 121, 300 S.W.2d 68 (1957), at page 73, the Court said:

“Rule 94 requires an insurer, on penalty of waiving the issue, to allege specifically that the loss was due to a risk or cause coming within a particular exception to its general liability. The exceptions which the insurer must specifically plead are those which limit its general liability for loss caused by the general hazards covered by the policy.”

In Kahla v. Travelers Insurance Company, 482 S.W.2d 928 (Tex.Civ.App.— Houston (14th Dist.) 1972, writ ref. n. r. e.), at page 933, the Court said:

“. . . The salutary requirements of Rule 94 are of doubtful value if they are to be dependent upon the form of the policy and if the rule is riddled with exceptions or doubtful logic created by judicial construction. See T.I.M.E., supra, 300 S.W.2d p. 73. Simple allegations of the plaintiff should not change the basic requirements of the rule. A plaintiff claiming rights under a policy of insurance is fully entitled to definite pleadings and specific information upon which the insurance company relies to defeat the liability under its policy.”

In International Security Life Ins. Co. of Dallas v. Harwood, 503 S.W.2d 378 (Tex.Civ.App. — Corpus Christi 1973, no writ) at page 380, the Court said:

“The Supreme Court of Texas has held that the burden of proof is on the insured to allege and show that he came within the coverages sued upon. Kirk v. Standard Life & Accident Ins. Co., 475 S.W.2d 570 (Tex.Sup.1972). This rule is subject, of course, to those qualifications embodied in Rule 94, Texas Rules of Civil Procedure. This rule requires that in the case of an insurer, it must include in its answer any exceptions or limitations contained in the policy on which the company relies. The rule does not change the burden of proof, but it gives to the claimant notice of the defenses that the company plans to rely upon.”

Lloyds waived its right to rely on the pro rata liability provisions by its failure to affirmatively plead them under Rule 94, T.R.C.P.

Lloyds’ original answer was filed June 26, 1972. The case was not tried until December of 1974. Lloyds announced ready for trial without tendering any amendments to its pleadings. In Coffey v. Fort Worth & Denver Railway Company, 285 S.W.2d 453 (Tex.Civ.App. — Eastland 1955, no writ), the Court said:

“. . . Under these circumstances it must be held that appellants did not exercise due diligence in seeking to so amend their pleadings. No excuse is shown for the delay of nearly three years in asserting the existence of an extra-hazardous crossing in 1951 . . . Ordinarily the allowance of a trial amendment is within the sound discretion of the court. The court’s ruling thereon is presumed to be correct and is subject to review only on a showing of abuse of discretion. A court does not abuse its discretion in denying permission to file a trial amendment when the record shows lack of diligence and that it would probably prejudice the opposite party in maintaining its defense. Westinghouse Elec. Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422, 424. The trial court is not ordinarily required to permit amendments that would disrupt the orderly procedure and lead to interminable delay. A party whose pleading is held defective is entitled to amend his pleadings for the purpose of curing that defect, notwithstanding his previous announcement of ready, but ‘this only extends to curing by amendment his defective pleading previously filed and does not authorize him as a matter of right to plead new and independent matters * * (and) this court will not review its action in rejecting a proffered amendment of this character unless it clearly appears that wrong or injustice has been done thereby.’ Ann Berta Lodge No. 42, I. O. O. F. v. Leverton, 42 Tex.18, 21. See also 33 Tex.Jur. 521.”

Purcell objected to the filing of the trial amendment because of lack of diligence. We hold the court did not abuse its discretion in refusing to permit Lloyds to file its trial amendment and withdraw its announcement of ready.

The testimony of Suttle Purcell and his brother, Bowers Purcell, constitutes some evidence of probative force and supports the answer to issue number one that the explosion on the occasion in question caused damages to Purcell’s building.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    John Albert SCOTT, Appellant, v. Della Lewis SCOTT, Appellee.
    Court of Appeals of Kentucky.
    Nov. 14, 1975.
    John R. McGinnis, Greenup, for appellant.
    Charles M. Daniels, Greenup, for appellee.
   CULLEN, Commissioner.

This is an appeal by John Albert Scott from a circuit court order denying his motion, made in February 1973, for modification of a 1968 divorce judgment as to alimony (maintenance) payments required to be made by John to his divorced wife, Della. The ground on which the motion was denied was that since the provisions of the judgment as to alimony were derived from a property-settlement agreement, incorporated in the judgment, in which payment of the alimony was an integral part of a complete settlement of the parties’ property rights, the court had no power to modify the judgment as to alimony, under such cases as Richey v. Richey, Ky., 389 S.W.2d 914, Turner v. Ewald, 290 Ky. 833, 162 S.W.2d 181, and Renick v. Renick, 247 Ky. 628, 57 S.W.2d 663.

The appellant seeks to escape from the rule of the above-cited cases on the grounds that (1) the rule is inequitable and wrong and the cases should be overruled; (2) the rule should not apply here because the wife received substantially all of the property and therefore there was no consideration for the agreement as to alimony; and (3) the 1972 legislative changes in the divorce statutes in effect abolished the rule.

This court is not persuaded that the rule in question is wrong in principle. It has ample support in the decisions of other jurisdictions. See Annotation, 61 A.L.R.3d 520 @ 589.

Likewise, the court is not persuaded from the record that the wife received substantially all of the marital property and the husband nothing, such as to negative any consideration for the agreement as to alimony. The family property consisted of a mortgaged dwelling house, household goods and furniture, two cars, some machinery and power tools, and office equipment. The wife was given the dwelling, the household goods and furniture, and one of the cars. The husband received the machinery, power tools, office equipment and the other car. We think there was adequate consideration for the alimony agreement.

The question of the effect of the 1972 changes in the divorce statutes is more troublesome. The change that has particular bearing on the issue in the instant case was made by section 8 of Chapter 182 of the Acts of 1972, compiled as KRS 403.180. That section deals specifically with incorporation of settlement agreements in marriage-dissolution decrees. Subsection (6) of the section is as follows:

“(6) Except for terms concerning the support, custody, or visitation of children, the decree may expressly preclude or limit modification of terms if the settlement agreement so provides. Otherwise, terms of a separation agreement are automatically modified by modification of the decree.”

The quoted language appears to mean that a marriage-dissolution decree incorporating a property-settlement agreement may be modified by the court, with respect to maintenance payments (when authorized by the conditions set forth in KRS 403.250), unless the settlement agreement and the decree expressly preclude modification. The statute thus states a rule different from that laid down in Richey, Turner and Renick, which precluded modification if the maintenance provisions were an integral part of a full property-settlement agreement. Obviously, the statute applies to decrees entered after the effective date of the statute. Our immediate question is whether it applies to a divorce judgment incorporating a property-settlement agreement entered before the effective date of the statute.

Subsection (3) of Section 26 of the 1972 Act (Chapter 182 of the Acts of 1972) provides that the Act “applies to all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date of this Act.” That provision could not be valid, however, to the extent of impairing vested contractual rights. As we interpret the rule of Richey, Turner and Renick, it rested on the proposition that rights created by contract could not be impaired through modification by the court, even though the contract had been translated into a court judgment. If the courts cannot impair the contract, neither can the legislature.

In cases involving child-support agreements incorporated into a divorce judgment, prior to the effective date of the 1964 Act reducing the age of majority from 21 to 18 (KRS 2.015), this court held that if the agreement evinced the intent of the parties that the support extend to age 21, the agreement would be enforced as a matter of contract, and the statute would not be given effect to terminate the support liability at age 18. See Blackard v. Blackard, Ky., 426 S.W.2d 471, and cases therein cited. By the same reasoning, we are of the opinion that the 1972 Act cannot be given effect to impair a contractual right to maintenance vested, under Richey, Turner and Renick, prior to enactment of the statute.

The judgment is affirmed.

All concur.


author: SIMEONE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John Wesley JOHNSON, Defendant-Appellant.
    No. 35553.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 12, 1975.
    Motion for Rehearing or Transfer Denied Oct. 22, 1975.

      Murry A. Marks, Clayton, William J. Shaw, Public Defender and Richard L. Ro-demeyer, Asst. Public Defender, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Pros. Atty., Clayton, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

As a result of an airport search of a briefcase belonging to defendant, which revealed a controlled substance, to wit, heroin, the defendant-appellant, John Wesley Johnson, was charged, tried to the court without a jury, found guilty and sentenced to five years in the department of corrections. §§ 195.017, 195.020 and 195.200(2), RSMo Supp. 1973. He appeals. For reasons hereinafter stated, we affirm.

In the late afternoon on September 14, 1970, Mr. Patrick R. Zangrilli, the manager of passenger service for American Airlines at Lambert International Airport, received a telephone call. The caller requested the sum of $100,000, “otherwise a bomb would be put on one of our airplanes.” “It appeared or sounded as though it was a male Negro voice.” The caller informed Zangril-li that fifty thousand dollars was to be put in a brown bag and left on Lindbergh Boulevard and 1-70 at a specified place, and the other fifty thousand was to be delivered to a specified room at a motel across from the airport and was to be placed “under the mattress on the bed.” Zangrilli was to “leave the room and leave the door ajar.” If the instructions were not followed, “a bomb would be placed on one of our airplanes.” Mr. Zangrilli immediately called the city and county police and the F.B.I. He also notified his supervisor at the ticket counter, Miss Marilyn Reed, and alerted her to scrutinize every person checking in for any flight on American “for anything at all that might be suspicious.”

At the time of the bomb threat, Officer Michael Carter, supervisor of the Bureau of Flight Operations of the St. Louis County Police, was working at the airport with Officer John Miederhoff, also of the county police, and Officer John Reeg of the airport police. Officer Carter talked with Mr. Zan-grilli, who informed him of the telephone threat. He also talked to Miss Reed and inquired of her whether she had seen or heard anything “that she felt suspicious.”

Miss Reed, the supervisor of airport passenger service for American, told her ticket agents about the “extortion threat” after a meeting she and other supervisors had with Mr. Zangrilli. Miss Reed also watched “the transaction of the purchase” of a ticket at which the defendant-Johnson bought a ticket to Chicago from one of the ticket reser-vationists — Miss Jeraldine Hall. Mr. Johnson came to the ticket counter and asked for a one-way ticket to go to Chicago. Miss Hall inquired if he had reservations, and he replied, “No.” She asked, “What flight do you want to go on?” And he replied he wanted a later flight that evening. During the sale of the ticket, Miss Hall inquired as to his name. “[H]e paused for a minute and seemed hesitant and seemed like he was making up a name and then he gave me a name, a last name which I asked for first, and then he gave me another name and it was hesitant, seemed rather strange because people don’t usually hesitate to the [sic] names.” The name he gave was “L. Jones.” He had no luggage and paid for the ticket in cash. As he left, Miss Reed and Miss Hall “looked at each other.”

Miss Reed followed Johnson down to the center concourse, lost him for a while and then saw him again at the gate, in the boarding area.

Miss Reed had informed Officer Carter that the only person she felt was acting in a suspicious manner that concerned her was a gentleman who had inquired about a ticket to Chicago who “had in his possession a black attaché case that he clutched rather possessively.” Miss Reed accompanied the officers to the gate and pointed out the defendant, who was sitting in the passenger area near the gate where persons wait to board aircraft. Officer Carter approached the defendant and asked for identification. At about the same time, Officer Carter requested defendant to step out to the “ramp area” which he did, leaving the briefcase on the bench. In response to Officer Carter’s request, the defendant produced an application for a Missouri driver’s license, a social security card and his airline ticket. The application and social security card were in the name of John Wesley Johnson, and the ticket was in the name of “L. Jones.”

Officer Carter inquired “why there was a discrepancy in the name on the ticket that he had purchased and the name on the I.D. that he showed me and he [Johnson] told me [Carter] that he had purchased the ticket with his brother-in-law’s credit card.” Of course, Miss Reed had indicated earlier that the ticket was purchased in cash.

While in the ramp area, Officer Carter, in the presence of Officer Miederhoff and Mr. Reeg, asked the defendant if “he had anything in the briefcase that he shouldn’t have.” And Johnson replied, “No.” Then Officer Carter said, “Do you mind if we take a look at it?” Johnson again replied, “No.” Officer Miederhoff then went back inside and obtained the case. Officer Carter opened it. Inside was found “a great deal of money” — $2562.00, a hypodermic needle, a silver spoon containing a white powdery substance, a syringe “like an eye dropper,” and a whiskey bottle containing a red substance “that did not have the odor of alcohol at all.” A tinfoil packet containing a white powdery substance and two brown bottles marked Dormin were found later.

Officer Carter did not advise Johnson that he had a right not to have the briefcase searched. No force or threats was used; no promises were made. Officer Carter then told Johnson he was under arrest, advised him of his rights and asked him if he understood. “He nodded that he did.” Officer Carter contacted Officers Thomas Prokawski and Weldon Angelo of the Narcotics Bureau of St. Louis County Police, who came to the police room at the airport about 7:30 p. m. They, together with Officer Carter, went through the contents of the briefcase and initialed the case and the other items. The evidence was turned over to Officers Prokawski and Angelo. They left with the defendant, Johnson. Officer Carter stayed at the airport. Prokawski and Angelo took custody of Johnson, placed him in an unmarked police car and “gave him his Miranda rights as we drove to Clayton.” There was no conversation between them in the police vehicle, although Johnson said he understood his rights.

When they arrived at headquarters, they met their superior officer, Detective Sergeant Norvell Benoist. Johnson came into the office accompanied by the two officers. Benoist asked if he had been advised of his rights, and the defendant indicated he had. There Johnson made a statement that he was going to Detroit to purchase some drugs and bring them back to the St. Louis area. He said that several persons had given him money to purchase drugs to bring back to St. Louis for distribution among those who had contributed. He was to purchase “three pounds of marijuana and ten ounces of combined cocaine and speed.”

The material found in the briefcase was turned over by Officer Weldon Angelo to the chemist assigned to the County — Mr. Robert Roither. Mr. Roither, a criminalist employed by St. Louis County Police Department, testified that he ran standard tests on the material found in the briefcase. The white substance on the spoons was heroin; the substance in the tinfoil packet was heroin and the liquid substance in the whiskey bottle was methadone.

On October 16, 1970, the appellant was indicted for unlawfully having heroin in his possession. On February 17, 1971, an information in lieu of indictment was filed charging five previous felonies and possession of heroin. Motions to suppress were filed, and the trial eventually took place beginning on November 27, 1972. Prior to the actual trial, the trial court heard a “motion for rehearing” to suppress the evidence of the alleged unlawful search and seizure and alleged confession and, after hearing the matter, overruled the motion for rehearing as well as defendant’s oral motion to suppress the evidence and confession. The court found the statements were voluntary.

After the court overruled the motion to suppress, the defendant voluntarily waived his right to a jury trial, and agreed that the evidence produced on the previous day’s hearing on the motion to suppress “can be stipulated to as though presented in the state’s case in chief.”

On December 15, 1972, the court found the defendant guilty as charged and on December 18, 1972 assessed punishment at five years. On June 28, 1973, after the motion for new trial was overruled and after allocution was granted, the defendant was sentenced to five years in the department of corrections. The defendant duly appealed.

On this appeal, the appellant contends that “the court erred by [sic] overruling the appellant’s motion to suppress the evidence.” We are not given the benefit of counsel’s thoughts as to “wherein and why” the court erred, but we glean from the argument portion of the brief that appellant contends the court erred because (1) the defendant did not voluntarily consent to the search of the briefcase, and (2) there was no probable cause by Officer Carter to search the briefcase “without a basis for suspicion” under the facts recited above. Appellant contends he did not consent to the search of the briefcase, and that consent involves a waiver — voluntarily and intelligently. He also contends that he was not advised of any right to refuse the search, and hence the search of the briefcase violated his rights. He also contends that there was no basis for a search and that he was searched “without a basis for suspicion and therefore illegally.” He contends the factors did not establish sufficient “probable cause for a police officer who did not even observe appellant to stop and ask to search appellant.” Hence, he contends his Fourth Amendment rights were violated. He contends he was stopped and searched because of a “profile,” and “[a]ny profile method which incorporates impermissible factors or permits capricious delection [selection?] of passengers to be searched is void.”

We reject both contentions of the appellant and hold that the trial court did not err in (1) overruling the motion to suppress, (2) finding that the search of the briefcase was valid, and (3) finding the defendant guilty of the offense charged. We believe that the search of the briefcase was proper under the circumstances and that the investigating officers had reasonable grounds to take the action they did. We come to this conclusion regardless of whether there was a consent to search and regardless of whether there were sufficient facts and circumstances to warrant the arrest of the defendant based upon the traditional “probable cause” test. The search, under these circumstances, was legitimate and can be upheld upon the well-developed principles of “airport searches.”

This is a court tried case. In such ease, we review the cause both upon the law and the evidence and reach our own independent conclusions from a consideration of all the evidence, giving due deference to the trial court to judge the credibility of the witnesses. We are not to set aside the findings unless clearly erroneous. State v. Rush, 497 S.W.2d 213, 215 (Mo.App.1973); Rule 28.18.

We deal here with an “airport search” and the peculiar problems connected therewith. The real issue on this appeal, as appellant recognizes in his brief, is the validity of a search and seizure at an airport which resulted in the conviction of the appellant. Important and heretofore unresolved questions are involved. Resolution of this issue requires us to perform the “difficult and sensitive task” of balancing individual rights against the public interest in effective security at airport terminals, and in effective security of airlines and air travelers.

In today’s society, airports and commercial aviation face new phenomena with potential “catastrophic consequences.” United States v. Cyzewski, 484 F.2d 509, 511 (5th Cir.1973). The incidences of bomb threats, air piracy, extortion and other schemes endanger commercial aviation, its personnel and property and the traveling public. To offset these dangers, security measures at an airport are necessary and essential. But necessity alone, however, does not authorize unlimited and unreasonable measures. For a search and seizure without a warrant to be valid, a cautious balance must be struck between the competing interests of personal privacy and the interests of law enforcement in protecting security at an airport.

The airport is a “critical zone” where special considerations apply. United States v. Moreno, 475 F.2d 44, 51 (5th Cir.1973). Numerous decisions in recent years have upheld airport searches where there are “specific and articulable facts” which, when taken together with rational inferences from those facts, reasonably warrant an intrusion into individual privacy. These decisions have upheld airport searches on the basis of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In balancing Fourth Amendment interests against the practical requirements of effective law enforcement, the Supreme Court measured the constitutionality of the officer’s conduct by the standard: “would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” Terry v. Ohio, supra, 392 U.S. at 21-22, 88 S.Ct. at 1880. In justifying a particular intrusion, the officer must be able to point to “specific and artic-ulable facts” which, taken together with rational inferences from those facts, reasonably warrant an intrusion. Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. 1868. In appropriate circumstances, an officer may approach a person “even though there is no probable cause to make an arrest.” Terry, supra, 392 U.S. at 22, 88 S.Ct. at 1880.

Although the personal safety of the officer was involved in Terry, of equal importance to airport security is the central purpose of protecting the airlines, their personnel and property and the multitude of air passengers who utilize our airways. Hence, the numerous decisions have held that an airport search may be made when there are “specific and articulable” facts shown which warrant an intrusion of privacy and a search and seizure is made. In applying the special considerations to airport searches, an officer is not limited to a “pat down” search when there is a proper basis for further investigation. United States v. Moreno, supra, 475 F.2d at 51. Rather, the search may be of sufficient scope so as to reveal objects or instrumen-talities. The officer has the right to search not primarily for his own protection but rather for the protection of a “distinct and uniquely threatened class” — the carriers, their crews, airport personnel and the traveling public.

The courts which have addressed the problem of airport searches have therefore consistently held that airport security measures constitutionally justify a limited and relatively insignificant intrusion of privacy balanced against the need to protect aircraft, the airport and the passengers. United States v. Cyzewski, supra, 484 F.2d at 512. The search may continue until the law enforcement officer satisfies himself that no harm would come from the person whom he has reason to believe may cause harm. To be effective, security efforts may focus not only on the aircraft or tangible items but on a person, his demeanor and his possessions during the course of his airport presence. United States v. Cyzewski, supra, 484 F.2d at 513.

Tested within these constitutional principles, a number of “specific and articu-lable” facts here clearly provided an adequate basis for Officer Carter’s investigation and a search of the defendant’s briefcase. A bomb threat had been received; appellant purchased a one-way ticket to Chicago in the name of “L. Jones”; he paid in cash, but when confronted he indicated that he purchased the ticket with his brother-in-law’s credit card; his identification was in the name of John Wesley Johnson; when he purchased the ticket he hesitated as to his name. These and other factors were sufficient for Officer Carter to investigate and search. While these factors may also be sufficient to constitute probable cause to arrest, the validity of the search need not rest upon that traditional ground. The factors were more than ample for Officer Carter to conduct a search of the defendant’s briefcase and, upon finding the items he did, to arrest the defendant for possession of narcotics.

We do not believe that consent to search is an essential factor in this proceeding. Having sufficient cause to investigate and search the briefcase, the consent of the defendant was immaterial. However, we believe that under the principles of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and State v. Rush, supra, the trial court could have properly found that the defendant consented to the search. At the time, the conversation was casual; the officers did not overemphasize authority; there was no fraud or misleading on the part of the officers; and the search was the product of an essentially free and unconstrained choice. The authorities relied upon by the appellant— State v. Witherspoon, 460 S.W.2d 281 (Mo. 1970), and State v. Young, 425 S.W.2d 177 (Mo.1968) — are distinguishable.

Appellant relies on United States v. Kroll, 481 F.2d 884 (8th Cir.1973). The court there held that although the security agents acted legally in searching the carry-on luggage of a passenger who fit the “profile” and activated the magnetometer, the agents exceeded the bounds of reasonableness by opening a small envelope in the file section. That is not the situation here.

We have read the entire transcript, the briefs and authorities relied upon by the appellant, and we are convinced that the search conducted by Officer Carter at the airport under these circumstances was legitimate and was not unreasonable or viola-tive of the Constitution of the United States or of Missouri. Ample reasons existed for this airport search — and it was justified — to protect the property of the commercial airlines and to safeguard the lives of the public who utilize air transportation. We are convinced the judgment of conviction should be affirmed.

The judgment is affirmed.

McMILLIAN and GUNN, JJ., concur.

      .The defendant was charged with unlawful possession of heroin (a felony) and conspiracy to possess heroin (a misdemeanor). At the conclusion of the trial, the trial court sustained a motion for judgment of acquittal as to the conspiracy. Hence, this appeal involves only the conviction of the felony charge.

      . At the time of trial, Miss Reed had married; her married name became Mrs. Marilyn Hicks. For purposes of this appeal, we shall refer to her as Miss Reed.

      . Officer Carter said that Mr. Zangrilli had informed him that the voice “appeared to be that of a Negro male whose age he hesitated to speculate on, neither very old or very young.”

      . The “motion for rehearing” alleged that defendant had been unlawfully arrested, i. e., without a warrant and without probable cause.

      . United States v. Moreno, supra — airport passenger in airport lounge area enroute to boarding gate appeared nervous, went from line to line, had bulge in pocket and gave inconsistent answers when officer asked for identification — search disclosing heroin upheld; United States v. Cyzewski, supra— false name on ticket- — search of checked luggage containing marijuana upheld; Cf. United States v. Palazzo, 488 F.2d 942 (5th Cir.1974); United States v. Skipwith, 482 F.2d 1272 (5th Cir.1973) — search of boarding passenger who gave false name on ticket may be based on mere or unsupported suspicion, where defendant had no identification, met “profile” and name on ticket was false — search revealing cocaine upheld; United States v. Bell, 464 F.2d 667 (2nd Cir.1972) — magnetometer’s use found to be constitutionally sound — defendant matched “profile,” lacked identification and gave false answers — search disclosing heroin upheld; United States v. Slocum, 464 F.2d 1180 (3rd Cir.1972) — magnetometer upheld — defendant unable to produce identification, search of handluggage containing cocaine upheld; United States v. Legato, 480 F.2d 408 (5th Cir. 1973) — bomb threat, untruthful replies to investigation and consent to search — search disclosing heroin upheld; United States v. Lindsey, 451 F.2d 701 (3rd Cir.1971) — nervous and conflicting identification, bulge in pocket — search disclosing heroin upheld; United States v. Fern, 484 F.2d 666 (7th Cir.1973) — boarding passenger pretending to read newspaper, changed seats leaving carryall, clutched white bag, one-way ticket, claimed he lived in San Francisco but didn’t know address, indicated traveling from New York to San Francisco, but ticket showed Chicago — search disclosing heroin upheld; United States v. Dalpiaz, 494 F.2d 374 (6th Cir.1974); United States v. Riggs, 474 F.2d 699 (2d Cir.1973) — defendant bought three one-way tickets in cash which she produced from paper bag in name of “P. Griggs” — search disclosing narcotics upheld; United States v. Epperson, 454 F.2d 769 (4th Cir.1972)— weapon.

      . See also United States v. Moreno, supra; United States v. Cyzewski, supra; United States v. Palazzo, supra, 488 F.2d at 945; United States v. Legato, supra, 480 F.2d at 411; United States v. Beil, supra.

      . In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972), it was stated:
      “ ‘[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.’ 392 U.S. at 22, 88 S.Ct. at 1880 [20 L.Ed.2d at 906], The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.”

      . The courts in resolving the airport security search have made it clear that an investigation need not be curtailed simply because the passenger decides not to take a particular flight. The right to leave argument followed in United States v. Meulener, 351 F.Supp. 1284 (C.D.Cal.1972), and relied upon by appellant in his brief has been expressly rejected. See United States v. Cyzewski, supra, 484 F.2d at 513, n. 4.

      . See State v. Novak, 428 S.W.2d 585 (Mo.1968); State v. Pruitt, 479 S.W.2d 785, 788 (Mo. banc 1972); State v. Seymour, 438 S.W.2d 161, 163 (Mo.1969).

      . Whether in a particular case a consent is in fact voluntary or was in submission to an express or implied assertion of authority is a question of fact to be determined in light of all the circumstances. Schneckloth v. Bustamonte, supra, 412 U.S. at 248-249, 93 S.Ct. at 2059, 36 L.Ed.2d at 875.


author: McMILLIAN, Judge.

text:
    Alfred GRIFFIN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36341.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 28, 1975.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City; Brendan Ryan, Circuit Atty., John C. Chancellor, Asst. Circuit Atty., St. Louis, for movant-appellant.
    Crouppen, Walther & Zwibelman, Gael T. Infande, St. Louis, for respondent.
   McMILLIAN, Judge.

This is an appeal from the judgment of the circuit court of the City of St. Louis denying without an evidentiary hearing appellant’s motion to vacate sentence filed pursuant to Rule 27.26, V.A.M.R. Because a timely notice of appeal was not filed, we are without jurisdiction and accordingly dismiss the appeal.

On March 8, 1974, appellant filed a second 27.26 motion pro se in the circuit court. On March 18, 1974, in a written opinion the trial court denied appellant’s motion without conducting an evidentiary hearing. A motion filed under Rule 27.26 is an independent civil action which is governed, as far as applicable, by the Rules of Civil Procedure. Rule 27.26(a); Lahmann v. State, 509 S.W.2d 791, 794 (Mo.App.1974). An order overruling a 27.26 motion is deemed a final judgment for purposes of appeal. Rule 27.26(j); State v. Gullett, 411 S.W.2d 227, 228 (Mo.1967). Civil Rule 81.05 provides that a judgment becomes final 30 days after its entry, if a motion for new trial is not filed. This rule also requires the notice of appeal to be filed within ten days thereafter to be effective. The judgment of the circuit court on March 18,1974, denying appellant’s motion thus became final for purposes of appeal on April 17, 1974. The appellant had ten days from that date, or until April 27, 1974, to file an appeal. According to the official file of this court, the notice of appeal was not filed until July 1, 1974. The failure to file a timely notice of appeal from the final judgment or order in a 27.26 proceeding deprives the appellate court of jurisdiction to hear this appeal. State v. Gullett, supra, at 228; Johnson v. State, 521 S.W.2d 479, 480 (Mo.App.1975).

We note that in entering its final judgment, the trial court indicated a desire that the judgment be reviewed by a court-appointed attorney and if necessary, appealed. The official record of this court does not disclose when the trial court in fact appointed such counsel. It is possible that counsel was not appointed until after expiration of the time permitted for filing a notice of appeal. Even if this were true, it would not affect our conclusion that we are without jurisdiction. The proper procedure for filing a late notice of appeal is to apply to the appropriate appellate court for a special order. No application for such a special order has been made, and the time for pursuing such a procedure has long since passed.

The failure of appellant's original counsel to file a timely notice of appeal has deprived this court of jurisdiction. The appeal is dismissed.

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


author: BILLINGS, Chief Judge.

text:
    STATE FARM FIRE & CASUALTY COMPANY, Appellant, v. Charles and Ilene POWELL, Respondents.
    No. 9806.
    Missouri Court of Appeals, Springfield District.
    Oct. 30, 1975.

      Albert C. Lowes, David G. Beeson, Buer-kle, Buerkle & Lowes, Jackson, for appellant.
    Weber Gilmore, Gilmore & Gilmore, Sike-ston, for respondents.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

This is an appeal from dismissal of an action for a declaratory judgment in which plaintiff State Farm Fire and Casualty Company sought to have an insurance policy issued to defendants Charles and llene Powell declared void because of alleged material misrepresentations in the application for the policy. Plaintiff contends the trial court’s dismissal was an abuse of discretion and once having assumed jurisdiction the circuit court was duty-bound to rule the issues. We modify the judgment to specify the dismissal to be without prejudice and as so modified affirm.

Trial was to the court sitting without a jury. Plaintiff’s evidence tended to show that its policy, insuring personal property, inter alia, against burglary, was issued to defendants by reason of false answers to questions contained in the application for the policy. Defendants’ evidence tended to show that plaintiff’s agent was fully advised of a prior fire loss and policy cancellation of defendants and defendant Charles Powell signed the application in blank in the agent’s office. Shortly after the issuance of the policy defendants made claim for loss by reason of a burglary. Several months later plaintiff filed this action, and thereafter defendants instituted a separate suit against plaintiff to recover under the policy.

The trial judge made and entered findings of fact and conclusions of law in which he determined the dispute between the parties involved a fact issue which should be decided by a jury and plaintiff had an adequate legal remedy, defensively, in the pending suit brought by defendants. Judgment of dismissal followed.

Initially, we observe that in its brief the plaintiff charges the trial court “ducked the issues”, “shirked its duty”, and “passed the buck”. Such vitriolic utterings leveled against a learned and experienced trial judge have no place in an appellate brief and, while shedding heat, cast no light on the matters for review. True, judges are not immunized against error, but castigation of the type quoted is hardly a vaccine.

As noted, plaintiff contends the trial court, once it had assumed jurisdiction and heard evidence, was precluded from dismissing the action. However, we believe our Supreme Court fully refuted plaintiff’s position in City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411 (1942), wherein it stated at 414:

“One section of the act [now Rule 87.07] provides as follows: ‘The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.’ This section contemplates that when ‘the court has heard all of the facts and has considered all of the legal relations of the parties, it may then refuse to render a declaration of rights if it seems to the court that the basis for relief has been insufficiently established in the exercise of a sound judicial discretion.’ ” (emphasis added).

Plaintiff next asserts Rule 87.07 must be interpreted to mean that a circuit court can dismiss an action for declaratory judgment only if a declaration “would not terminate the uncertainty or controversy giving rise to the proceeding.” Plaintiff cites no cases where this reading of Rule 87.07 (or of § 6 of the Uniform Declaratory Judgments Act which is identical in wording, § 527.060, RSMo 1969) has been adopted, and we find his point to be without merit. Declaratory judgment is to a large extent a discretionary remedy [see generally, E. Borchard, Declaratory Judgments, 293-315 (2d ed. 1941); W. Anderson, Actions for Declaratory Judgments §§ 382-400 (2d ed. 1951)]; and Missouri courts, like those of most other jurisdictions, have declined to apply the theory exclusio unius est inclusio alterius to Rule 87.07 and recognize that dismissal may be granted on other grounds including availability of an adequate remedy at law and the absence of a justiciable issue. See Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943); Harris v. State Bank & Trust Co. of Wellston, 484 S.W.2d 177 (Mo.1972); State ex rel. U. S. Fire Ins. Co. v. Terte, 351 Mo. 1089, 176 S.W.2d 25 (banc 1943); Glick v. Allstate Ins. Co., 435 S.W.2d 17 (Mo.App.1968); and cases cited at Uniform Declaratory Judgments Act (U.L.A.) § 6.

Having determined that the circuit court has discretionary power to deny declaratory relief where such remedy is inappropriate, we now consider plaintiff’s claim the trial court abused its discretion in this case. The trial court gave two reasons for its dismissal: 1) factual issues had been raised which should be decided by a jury, and 2) plaintiff had an adequate remedy at law, defending in defendants’ action to recover under the policy.

The circuit court was incorrect in its assumption that existence of factual issues justified dismissal of an action for declaratory relief. It is well settled that, where necessary to declare legal rights, factual issues may be determined in a declaratory judgment action and a jury may be used for this purpose if requested by either party. Rule 87.06, State ex rel. U. S. Fire Ins. Co. v. Terte, supra; M. F. A. Mut. Ins. Co. v. Quinn, 259 S.W.2d 854 (Mo.App.1953); Crollard v. Northern Life Ins. Co., 240 Mo.App. 355, 200 S.W.2d 375 (1947).

However, we conclude the second reason given by the trial court, that plaintiff could obtain adequate relief by raising the alleged invalidity of the insurance policy as a defense in defendants’ action at law, is sufficient justification for dismissal of this declaratory judgment action. This issue was considered in a similar factual situation by our Supreme Court in State ex rel. U. S. Fire Ins. Co. v. Terte, 351 Mo. 1089, 176 S.W.2d 25 (banc 1943). Although Judge Terte had stayed the declaratory judgment action in that case pending the outcome of defendant’s subsequently filed action to recover under the insurance policy, the practical effect of his action was to deny declaratory relief. Hence, we believe the Supreme Court opinion is equally applicable to dismissal of the action and quote from it at length:

“In the present instance both actions are pending in our state circuit courts, which are in the same sovereignty and have coordinate jurisdiction. In these, ordinarily the second action in point of filing and service of process would be subject to abatement . . . . But, while authorities on the point are rare or non-existent in Missouri, we have no doubt that respondent had the discretionary power to stay proceedings in the declaratory proceeding pending before him, awaiting the determination of defendant Hunt’s subsequent action on the policy
* ⅜ ⅜ * * ⅜:
“So, likewise, Borchard, Declaratory Judgments (2 Ed.), p. 303, declares: ‘Where a party’s action is about to begin or has begun, it serves no sensible end to permit his adversary to appear as an equitable actor and start the proceedings for an autonomous declaration that he has a good defense to his opponent’s pending or imminent action. But where the facts do not show such imminence of suit, or where there is a practical ground for permitting a party ... to claim and obtain exoneration from a judicial proceeding, there is no reason why the courts should not take cognizance’- — of a declaratory action covering the same issues. .
“There is no doubt in our minds that judicial discretion to stay relief in a suit for a declaratory judgment because of another action pending, may take cognizance of subsequent as well as prior exec-utory actions between the same parties on the same issues, where the latter were naturally in contemplation when the declaratory suit was brought and were actually pending before it was heard. It seems clear also that that discretion may consider public policy and interest, efficiency, convenience, economy and good or bad faith of the party bringing the declaratory action. This latter has been expressly held. In considering the convenience of the declaratory action such facts have been consulted even as the relative distances of the parties and witnesses from the two places of trial. The most important factors under the specific terms of the statutes . . . are: (1) Whether the plaintiff in the suit for declaratory relief is in a position of uncertainty and insecurity; (2) whether the suit will terminate the uncertainty and insecurity as effectually as the other action; (3) and by no means least, whether public policy and interest will be served.
“On the first two of these points, in the instant case the [plaintiff’s] suit merely tenders the single issue of fact . No ambiguity in the policy is claimed by either party. If relator was involved in insecurity or uncertainty it was the veriest minimum that would be present whenever the relator disputed liability on any such policy. No fact is disclosed indicating the insured intended to leave relator suspended in uncertainty by failing to assert her claim. And when the relator brought its suit the issue was tendered in such manner that it would terminate the controversy only if the suit was decided in favor of relator. If the trial court should decide relator is liable on the policy, defendant Hunt would still be compelled to enforce that liability, both on the policy and for vexatious delay, in her separate . . . action; or by cross-action in the declaratory suit in a forum selected by relator. We do not say relator had no right to bring its suit that way, or that respondent did not have jurisdiction of it; but we do hold respondent could take these facts into consideration on the motion to stay proceedings, as well as relator’s good faith.
“On the matter of public Policy. In Assoc. Indem. Corp. v. Wachsmith, 2 Wash.2d 679, 99 P.2d 420, 422, 127 A.L.R. 531, the first suit brought was one for a declaratory judgment in the state court, the insurer countering with a subsequent action for direct relief in the Federal court. The decision vigorously asserted that if declaratory suits could be thus ‘shunted into the discard’ by the subsequent bringing of an executory or coercive action, ‘the declaratory judgments act is more of a joke than an important and effective part of the law of the state.’ This, of course, would be true where the second action is filed in bad faith, or merely for strategic or obstructive purposes without any real uncertainty or insecurity. But on the other hand, if our practice is to degenerate into a contest of speed, a race to the court house to get one or the other case filed first, the wholesome and ameliorative remedy by declaratory judgment will be prostituted to uses for which it never was intended; and the opportunity for calm negotiation between the parties, with a view to dispensing with litigation in the case, will be destroyed. See Borchard, Declaratory Judgments 2d Ed., pp. 312, 653.” 351 Mo. at 1097-99, 176 S.W.2d at 30-31 (footnotes omitted).

Finally we note that “any involuntary dismissal other than one for lack of jurisdiction, for prematurity of action, for improper venue or for failure to substitute a party for decedent shall be with prejudice unless the court in its order for dismissal shall otherwise specify.” Rule 67.03. In order to avoid possible confusion concerning the res adjudicata effect of the judgment in this case, we modify the judgment to specify the dismissal to be without prejudice and as so modified affirm it.


text:
    STATE of Missouri, Respondent, v. Terry STEVENS, Appellant.
    No. 9909.
    Missouri Court of Appeals, Springfield District.
    Oct. 30, 1975.

      John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Randolph Maness, Maness & Maness, Do-niphan, for appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Defendant Terry Stevens was convicted by a Ripley County jury of committing sodomy on a ten-year-old boy. By reason of a previous similar conviction the defendant was charged under the Second Offender Act, and on the jury’s guilty verdict the trial judge sentenced the defendant to a 25-year prison term. We affirm.

Defendant’s trial was conducted and the jury verdict returned on November 22, 1974. On December 3,1974, defendant filed his motion for new trial. The motion was denied December 3, 1974, at which time the defendant was afforded allocution and sentence and judgment entered.

Defendant’s motion for new trial was untimely and preserves nothing for appellate review. State v. White, 439 S.W.2d 752 (Mo.1969); State v. Morse, 526 S.W.2d 432 (Mo.App.1975). Rule 27.20(a) requires a motion for new trial to be filed within ten days after the verdict absent an application for and court extension of the time for filing such a motion. Here, defendant’s motion for new trial was filed on the eleventh day following the verdict, and the record does not show the time for filing the motion had been extended pursuant to the requisite application. The Rule governing motion for new trial is cast in mandatory terms, and neither the parties nor the court can waive the requirements of the rule. State v. Rapp, 412 S.W.2d 120 (Mo.1967); State v. Morse, supra.

We have reviewed, pursuant to Rule 28.02, the sufficiency of the information, the verdict, the judgment and the sentence and find no error. Our examination of the record does not reveal any necessity for the invocation of the plain error rule [Rule 27.20(c)]. We also observe that, even had the defendant’s motion been timely filed, we would be compelled to hold the defendant’s incriminatory statements were properly received in evidence inasmuch as the statements to officers were without constitutional infirmities.

The judgment is affirmed.

All concur.


author: FLANIGAN, Judge.

text:
    ESCO INDUSTRIES, INC., d/b/a Major Cadillac Leasing Co., Plaintiff-Appellant, v. INDIAN CREEK HILLS, INC., and Charles R. Landolt, Defendants-Respondents.
    No. 9750.
    Missouri Court of Appeals, Springfield District.
    Nov. 3, 1975.
    Dale E. Sporleder, Kyle D. Williams, Spencer, Fane, Britt & Browne, Jefferson City, for plaintiff-appellant.
    Tweedie Fisher, Jefferson City, for de~ fendants-respondents.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

On July 14, 1971, plaintiff Esco Industries, Inc., instituted this action in the Circuit Court of Camden County, Missouri, against defendants Indian Creek Hills, Inc. and Charles R. Landolt, to recover a sum allegedly owed by defendants to plaintiff under an automobile lease. The defendants filed a motion for a more definite statement. On May 9, 1972, the motion was overruled and the defendants were given 30 days in which to plead. On July 11, 1972, the plaintiff filed a motion “for default judgment against defendants in this case, defendants and each of them having failed to file responsive pleading within the 30 days granted defendants to do so.” The trial court sustained the latter motion and entered judgment in favor of plaintiff and against defendants in the sum of $9,356.50, together with interest and costs.

Later the defendants filed a verified “Motion to Set Aside Judgment.” The timeliness of this motion is not attacked and is not an issue on this appeal.

The verified motion alleged, in general, that defendants had not complied with the order of May 9, 1972 with regard to filing a responsive pleading for the reason that, after that order was entered, counsel for plaintiff and counsel for defendants had agreed that “the answer of the defendants could be held in abeyance until each counsel conferred with their respective clients and until counsel for each party again conferred on settlement.” Other allegations of the motion, if true, make it clear that procuring the entry of the judgment was in contravention of the agreement between counsel. See J. R. Watkins Company v. Hubbard, 343 S.W.2d 189, 192[2] (Mo. App.1961).

The question of setting aside the judgment was submitted to the trial court on the basis of the verified motion “without further testimony.”

The trial court entered its order sustaining defendants’ verified motion and the judgment was set aside. Plaintiff appeals from the latter order.

Respondents have filed a motion to dismiss the appeal on the ground that appellant’s brief fails to meet the requirements of Rule 84.04. The disposition of this appeal makes it unnecessary to discuss the merits of this motion, and it is overruled.

This court has read the transcript, the briefs of the parties, and the authorities cited therein. This court determines that the order of the trial court setting aside the judgment is based on findings of fact which are not clearly erroneous. This court further determines that no error of law appears and that an opinion would have no precedential value. This affirmance is in compliance with Rule 84.16(b), V.A.M.R.

The order setting aside the judgment in favor of plaintiff and against defendants in the sum of $9,356.50, together with interest and costs, is affirmed.

All concur.

      . The motion also alleged that the defendants “have a meritorious defense to plaintiff’s petition” and stated facts in support of that allegation. Plaintiff does not attack the sufficiency of those facts.

      . The order was appealable because the judgment which it set aside was a final one. Diekmann v. Associates Discount Corporation, 410 S.W.2d 695, 699[3] (Mo.App.1966).