text:
    STATE of Missouri, Respondent, v. Frederick L. BURLEY, Appellant.
    No. KCD 26873.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.
    Rehearing Denied June 2, 1975.

      William E. Erdrich, Asst. Public Defender, St. Joseph, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   SHANGLER, Judge.

The appellant was convicted by a jury of second degree burglary and sentenced to imprisonment for a term of two years. On this appeal, he assigns as error (1) the refusal of the trial court to allow jury inspection of eye glasses of the prosecuting witness (2) the refusal of a proffered instruction (3) the admission of his oral statement (4) the refusal of the testimony of a defense witness, and (5) the submission of the cause to the jury.

At about 9:00 o’clock p. m. on a September evening, Newman had occasion to go to the cafe he owned to prepare for the business of the coming day. As he was about to unlock the glass front door, he heard a noise within and observed someone peering at him from behind the illuminated counter, and recognized him as the appellant, who had worked for him some time earlier. The intruder, having found himself observed in this manner, made escape through a rear window.

At the police station, from a series of photographs, Newman identified the appellant as the culprit. The witness also testified that at the time of the burglary appellant was garbed in a shirt of large brown and white checks.

The confession of the appellant to the burglary taken by the police was given in evidence.

The appellant took the stand on his own behalf and denied the offense. He gave evidence that on the evening of the event he had visited his grandmother at a hospital, left about 8:45 o’clock p. m., walked to a filling station for a bottle of pop, and thence to the home of a female acquaintance. He was then clad in blue shirt and blue jeans. There was testimony from another witness that John Burley, the brother of the appellant, who bore him a striking resemblance, was seen the very evening of the burglary attired in a shirt of large brown and white checks. The brother could not be found, however, and did not testify.

Three other witnesses for the appellant testified that after the preliminary hearing, Newman, confronted by relatives of the appellant, told them that after he had viewed the photographs a second time with the aid of his glasses, he discovered that his first identification made without glasses had been mistaken.

During cross-examination, Newman acknowledged that he habitually wore bifocals for close reading, but not at the time of his observations of the appellant. He conceded that his vision had not been tested since he acquired the glasses, fifteen years before. At this, the defense offered the spectacles into evidence. The court allowed the exhibit but refused the defense request that the glasses be circulated among the jury.

Appellant cites this refusal as error and recites for support the maxim in State v. Hundley, 46 Mo. 414, 422 (1870): “It is for the court to determine upon the legitimacy and appropriateness of the evidence, but the jury are the sole and exclusive judges of the credit and weight that is to be attached to it.” The appellant understands this to mean [citing McCormick, Law of Evidence, § 179 (First Edition, 1954)] that once demonstrative evidence has been authenticated by the court, the jury as the trier of fact is entitled to inspect the object. While it is the duty of the jury, in a common law trial, to pass on the credit and weight of the evidence in the first instance [State v. Gregory, 339 Mo. 133, 96 S.W.2d 47, 51[1 — 4] (1936)], the refusal of the court to submit the eyeglasses to the sense inspection of the jury did not infringe that function. That witness Newman owned and used bifocals was a fact already in evidence, and although the best evidence rule did not require the production of the object [See, State v. Coleman, 441 S.W.2d 46, 51[8, 9] (Mo.1969); Underhill’s Criminal Evidence, § 115], the glasses were also given in evidence. The issue of the visual acuity of witness Newman, and thus his ability to identify appellant, was not one which a jury could competently resolve from an examination of the glasses without the aid of expert testimony. State v. Hendel, 468 p.W.2d 664, 667[3] (Mo.App.1971). The refusal of the trial court to allow the request for inspection of the exhibit by the jury was within an allowable discretion. State v. Arrington, 375 S.W.2d 186, 193[13] (Mo.1964).

The court received in evidence, over the objection of appellant, a “Waiver of Rights Form” executed by him. The appellant contends this objection raised an issue of the voluntariness of waiver, and thus entitled him to an instruction on the question. The court refused his proffered submission which undertook to instruct that the statement of appellant was not to be considered by the jury unless, in effect, he had been informed of his Miranda rights and had intelligently and understandably waived them. The court did submit, however, Instruction No. 9 which went to the voluntariness of the confession appellant had given police. The appellant does not object to that submission but only that the failure of the court to instruct separately on the vol-untariness of waiver was prejudicial because it prompted the jury to believe that the confession which ensued was voluntary.

The submission on the voluntariness of the confession, Instruction No. 9, informed the jury:

[Bjefore you can consider any statement you must find that it was made by the defendant and that it was freely and voluntarily made. ... In determining whether a statement was freely and voluntarily made, the jury must consider all of the attendant circumstances at the time the statement was given.

This direction, which requires the jury to consider all attendant circumstances of the statement, comprehends and submits every element of voluntariness including that of the waiver of the rights under Miranda. In State v. Davis, 400 S.W.2d 141 (Mo.1966), the appellant complained that the instruction concerning the voluntariness of his confession did not submit for the consideration of the jury whether the failure to advise him of his right to an attorney or to provide him with an attorney before his statement was taken constituted elements of involuntariness. The court replied, l.c. 151[25]:

That Instruction, No. 8, told the jury to consider any such statement or statements “in the light of the circumstances under which they were made” and to determine whether or not they were voluntarily made or were “procured by coercion or threats or through fear . . .” We consider that it was wholly unnecessary, and perhaps it would have been improper, for the Court to single out and include specifically that one element, thus giving it an undue emphasis.

This rationale has been codified for prescriptive use by MAI — CR 3.44, Confession or Admission of Defendant, Notes on Use 2:

No separate or further instruction should be given on the effect of a failure to give • the Miranda warnings or the effect of a waiver of defendant’s rights thereunder. All of such facts, including any claimed failure to give the Miranda warnings and any claimed waiver of rights thereunder, are circumstances or factors affecting the ultimate issue of whether the statement was freely and voluntarily made and may be so argued to the jury.

We rule the point against the appellant.

The appellant next contends that it was error to allow testimony of his oral confession because his statement to the police interrogator that he knew nothing of the crime alleged was an exercise of his right to remain silent. The appellant relies upon the rule in Miranda v. Arizona, 384 U.S. 436 (1966), l.c. 473, 474, 86 S.Ct. 1602, l.c. 1627, 16 L.Ed.2d 694 that:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. (Emphasis added)

The denial by appellant of any knowledge of the crime, however, is not tantamount to an invocation of his right to remain silent. In United States v. Jones, 486 F.2d 599 (5th Cir.1973) the defendant argued that from his denials of any knowledge of a crime, the FBI should have refrained interrogation until they determined whether he intended them as assertions of his right to remain silent. The court rejected this argument, l.c. 600[1]:

We cannot agree. Although Jones denied his complicity in the crime, he apparently indicated no unwillingness to discuss the matter of the crime. Denials of a crime by one well aware of his right to remain silent cannot, without more, be taken as an unspoken election to exercise the right to remain silent.

See, also, Brooks v. State, 229 A.2d 833 (Del.1967).

Nor is State v. Crow, 486 S.W.2d 248 (Mo.1972), also cited by appellant on this point, helpful to his cbntention. That defendant thrice asserted his desire to remain silent; twice by explicit oral expression, and once by tearing up the waiver of rights form he had just signed. In those circumstances, the court determined that the confession was constitutionally inadmissible. Our appellant, on the other hand, showed no unwillingness to speak freely to the police. This point is denied.

The fourth contention of error is the refusal of the trial court to allow testimony of defense witness Fleck. The appellant himself testified that on the evening of the offense, he had visited his grandmother at the Missouri Methodist Hospital, from where he left afoot at about 8:45 p. m. The prosecuting witness, Newman, testified that when he encountered appellant in the cafe, it was about 8:55 p. m. The distance between the hospital and cafe was established at slightly more than a mile. The defense offered witness Fleck, investigator and former policeman as an expert on walking time to prove that Fleck, a person of comparable physical characteristics as appellant, had walked the course between the hospital and cafe at a vigorous pace, and that the effort required twenty-one minutes. [The inference intended from this proof was that, since the evidence of appellant was that he left the hospital on foot fifteen minutes before the commission of the offense, it was physically beyond his opportunity.] The court rejected the pro-ferí on the premise that walking speed is a matter of common knowledge and thus an inappropriate subject for expert opinion. The court thereupon took judicial notice that an average man can walk a mile in fifteen minutes.

The appellant contends that witness Fleck was in possession of facts not readily available to the jury and thus the exclusion of his testimony was error.

The admission or exclusion of expert testimony are matters largely within the discretion of the trial court. Edwards v. Rudowicz, 368 S.W.2d 503, 506[4 — 7] (Mo.App.1963). If a jury can intelligently resolve an issue on the basis of common and ordinary knowledge, expert opinion is not proper on that issue. Superior Ice & Coal Co. v. Belger Cartage Service, Inc., 337 S.W.2d 897, 906[8] (Mo.1960). Thus, facts which are matters of common knowledge to all intelligent men need not be proved to the jury and may be judicially noticed by the court. English v. Old American Insurance Company, 426 S.W.2d 33, 40[11 — 13] (Mo.1968). It is a matter of common knowledge, and thus a fact for judicial notice that average walking speed is from 2.9 to 4.4 feet per second. Miller v. St. Louis Public Service Company, 389 S.W.2d 769, 772[5] (Mo.1965). It follows, then, that judicial notice was properly taken that an average man can walk a mile in fifteen minutes. This recognition of fact, however, was only prima facie and did not foreclose rebuttal. Scheufler v. Continental Life Ins. Co., 350 Mo. 886, 169 S.W.2d 359, 365[9-13] (1943). The proffered evidence of Fleck that he walked the course in twenty-one minutes, however, is irrelevant either to the average walking time or to the time which may have been taken by the appellant. The offer of proof was properly rejected.

The final point appellant asserts, that the evidence did not prove a submissi-ble case of burglary, has been fully answered by the exposition of the other points.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: SMITH, Chief Judge.

license: Public Domain

text:
    John B. WILSON and Jane W. Wilson, Plaintiffs-Respondents, v. Charles L. MOORE, Administrator of the Estate of Carlyle C. Friton, Deceased, Defendant-Appellant.
    No. 35690.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 1, 1975.
    Rehearing Denied May 19, 1975.
    Heneghan & Roberts, Inc., George F. Kosta, Jay G. Newquist, St. Louis, for defendant-appellant.
    Thomas R. McGinnis, William M. Ward, William M. Ward, Jr., St. Louis, Carson, Inglish, Monaco and Coil, Cullen Coil, Jefferson City, for plaintiffs-respondents.
   SMITH, Chief Judge.

Defendant appeals from a verdict and judgment in favor of plaintiffs in a personal injury case. Defendant’s only attack on appeal is upon the sufficiency of the evidence to support a humanitarian negligence case of failure to slacken speed or swerve.

Since we review the evidence in the light most favorable to plaintiffs, we will set forth only the evidence favorable to plaintiffs. Plaintiff John Wilson was on his way from his home to a store, on foot. He was in his late sixties but in good health. He reached a point on Sappington Road in Glendale where he wanted to cross Sapping-ton Road. The point of crossing was in the middle of the block about 200 feet south of Manchester Road. At that point Sapping-ton Road is 30 feet wide. Wilson crossed from west to east. Upon reaching the center of Sappington Road, Wilson saw defendant’s decedent’s (Friton) car, some undetermined distance away, believed he had time to cross and proceeded on. From the center line to the east curb line of Sappington at that point is 14 feet 2 inches. Wilson reached a point where he was in the process of putting one foot on the east curb when he was struck. His walking speed was described as “abnormally slow” by one witness and by others, including Wilson as normal. Friton’s speed was unknown to any witness, the nearest estimate being “a rather fast pace.” Friton, who was dead at trial time, did not sound a horn, did not apply his brakes or slow down prior to the collision. His only change of direction was a slight swerve to the right — into Wilson. The day was clear and dry; the accident occurred in the afternoon. Friton’s statement at the scene was:

“I saw the man crossing the street. He apparently, from what I could figure, was all the way across. He must have hesitated at the last moment.”

Defendant contends the point of immediate danger occurred when Wilson reached the middle of the northbound lane because he was not oblivious until then. We disagree. Wilson’s point of immediate danger could be found by a jury to have-occurred when he crossed the center line of Sappington Road “regardless of any obliviousness which would have extended his zone of peril.” Leap v. Gangelhoff, 416 S.W.2d 65 (Mo.1967) [4-6]. At that point he was actually in the path of Friton’s automobile. See Dister v. Ludwig, 362 Mo. 162, 240 S.W.2d 694 (banc 1951) [9]. From that point he walked 14 feet then was struck. At the judicially noticed 2 to 3 miles per hour such walking required between 3 and 4 seconds; and if “abnormally slow” — more. Wilson was in an “almost escaping” situation where the slightest slowing or slightest swerve by Friton would have prevented the accident. Excluding reaction time Friton had between 2¼ and 3⅛ seconds to avert the accident. It is reasonable for a jury to infer that some slight slowing or swerve could have been accomplished in that time regardless of Friton’s speed or position.

“. . . [i]t must be recognized that in some situations ‘the facts speak for themselves without the aid of expert evidence, as where the evidence shows that the plaintiff’s vehicle had but barely failed to get in the clear before the occurrence of the collision, so that only the least additional time would have enabled the plaintiff to make his escape.’ ” Schmittzehe v. City of Cape Girardeau, 327 S.W.2d 918 (Mo.1959) [7, 8],

There was uncontroverted evidence that there was a southbound vehicle in the southbound lane of Sappington in close proximity to Wilson’s path. But a jury could reasonably conclude that a slight swerve sufficient to avoid the accident could be made by a driver exercising the highest degree of care in a 14 foot wide lane without crossing the center line. In fact, had Friton merely swerved back to his straight path or remained in it the accident would have been averted.

Judgment affirmed.

KELLY and STEWART, JJ., concur.


author: PRITCHARD, Chief Judge.

text:
    Eldon D. TAYLOR and Garnet J. Taylor, Appellants, v. WESTERN CASUALTY & SURETY COMPANY, a corporation, Respondent.
    No. KCD 26732.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.

      Austin B. Speers, Kansas City (Speers & Slyter, Kansas City, of counsel), for appellants.
    Thomas E. Deacy, Jr. and Edward W. Mullen, Kansas City (Deacy & Deacy, Kansas City, of counsel), for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   PRITCHARD, Chief Judge.

In this court-tried case, respondent Western Casualty and Surety Company, was granted judgment upon appellants’ petition, which in general alleged that a paltry settlement of a minor’s claim for personal injuries occasioned by electrical shock was fraudulently procured by Western in conspiracy with its agents and its insured. It is said that the fraud consisted of the concealment of the fact that Western had an insurance policy on Se Ma No Electrical Cooperative’s operations covering it against liability for personal injuries. The claim was for $50,000.00 actual and $150,000.00 punitive damages.

At the time of trial, January 15, 1973, appellants’ son, James K. Taylor, was 18 years old and was attending a junior college in Longview, Washington. In May, 1965, when he was 10 years old, James went up a ladder onto the roof of a building to look at a birdhouse, walked across the roof underneath a power line erected by Se Ma No Electric Cooperative, and came into contact with it. James then lived with his parents in a communal colony called Zion’s Order of the Sons of Levi, Inc., near Ava, Missouri. He was taken unconscious to a hospital in Springfield, Missouri. He remembered that he had severe burns on his stomach, arms and armpits, which caused him to have surgery and both arms were removed below the elbows.

James’ father, appellant Eldon D. Taylor, testified that he joined the Zion Order in 1951 in Utah. That year he married Garnet Taylor, who is the daughter of the head of the Order, Marl Kilgore. The Order owned about 1700 acres in Douglas County, Missouri. Eldon’s duties on the ranch involved mechanically taking care of all the vehicles and tractors. The mode of life of the communal group, which consisted of several families, was the sharing of all earthly properties in a communal fund and all monies received for labors were taken in and disbursed by the manager of the group. Separate living quarters were maintained, but there was a community dining hall where the families ate their meals. Access to television and newspapers was restricted by Mr. Kilgore. During his rebuttal testimony it was elicited from Eldon that had he known that there was insurance covering the claim he would not have settled his claim and his wife’s claim “for loss of services for eight thousand dollars.” He relied “on the fact that there was no insurance in making this settlement” for loss of services on the son’s case.

On September 24, 1965, appellants, without James, appeared in the circuit court of Douglas County, at Ava, Missouri. Marl Kilgore accompanied them. They first went to the law office of Quentin Haden, where they remained for 10 or 15 minutes. The record of the Douglas County circuit court shows that James Taylor was plaintiff, by his next friend, Eldon Taylor, and was represented by Mr. Quentin Haden. Defendant, Se Ma No Electric Cooperative, Inc., was represented by Mr. Harold Fisher, Springfield, Missouri. At that hearing, Eldon Taylor was interrogated by Mr. Haden: He is the father of James who would have soon been 11 years old. James’ injuries were described, and a discussion had been had concerning fitting him with artificial hands, and he had his left artificial hand in use — it would have been awhile before the right artificial hand could be made. Eldon had discussed the settlement that was being entered into with his wife, and his father-in-law, Mr. Kilgore, had heard of the settlement. He understood that $2,000 would be put in a “trust fund of some kind, handle it through court, and there will be $6,000 cash and the Se Ma No will settle for the hospital and doctor bills, those things, besides that.” The hospital and doctor bills ran between $1,800 and $2,000, and there would be an overall figure of $10,000 in the settlement. Eldon had discussed the case with an attorney, Mr. Curry, and with an attorney from Kansas City. As to how the $10,000 figure was arrived at, Eldon testified: “A. That is what my wife and I decided upon that was reasonable. We talked it over with Mr. Jackson [Cash Jackson, since deceased, then manager of Se Ma No]. Q. But the figure you had arrived at was between you and your wife and Mr. Kilgore? A. Between me and my wife, yes. Q. You do think that amount is fair and reasonable? A. I believe that amount is reasonable, yes.” In answer to the court’s questions, Eldon testified (somewhat contrary to what he had previously told the court) he had not talked with an attorney about representing him and about the injuries the boy received, “A. We mentioned what we was going to do, we said we hadn’t thought about it yet. It was mentioned how much we cared to get, we said we didn’t have anything in mind at all, we thought we would try to settle it out of court.” He felt like what he was getting in this case was reasonable. In response to questions by the court, “What about you, Mr. Kilgore, do you feel like this is fair under the circumstances? MR. KILGORE: Yes, I do. They offered settlement. We never threatened to sue or anything. They offered the settlement themselves. I talked to Mr. Curry some and also to this man from Kansas City. They both thought it is much better to settle it out of court.” From his discussions with Mr. Curry and his attorney friend from Kansas City, Mr. Kil-gore felt the amount was reasonable: “Yes, I do, settlement out of court.” [The attorney friend in Kansas City is later referred to in the present transcript as appellants’ present counsel.]

On cross-examination by Mr. Fisher, Eldon understood that $3,750 was being paid into court to him as next friend, of which $250 attorney fees was being paid to Mr. Haden; $2,000 was going into probate court for James’ guardianship. [From checks drawn by Allen, Woolsey & Fisher Trust account, $3,500 was paid to Eldon Taylor, as James’ next friend; $4,500 was paid to Eldon and Garnet, parents and natural guardians of James; and a total of $2,004.85 was paid for various medical, hospital and other expenses on James’ account.] At the time of that hearing, James was under services offered by the Crippled Children of the state, and all medical expenses were given him without charge, including prothesis and the artificial hand. Mrs. Taylor heard her husband’s testimony and agreed with it, and she thought the settlement was fair and reasonable. The $2,000 for James was put in the bank as a trust fund for James, and $4,500 was used to open a cheeking account for the Zion Order, in Marl Kil-gore’s name with Eldon and Garnet as signers.

Following the casualty, Eldon was never contacted by anyone who identified themselves as being from an insurance company. Cash Jackson of Se Ma No came to visit at the hospital to see how James was.

Answers to interrogatories made by Western in the federal court case of James were received by the court. In these Western stated that appellants had discussed James’ casualty with Se Ma No’s manager, Cash Jackson, on several occasions, and that they negotiated with Jackson for the settlement of the claim. Jackson had also visited and inspected the area of the casualty during the spring and summer of 1965. No officer, adjuster or investigator of Western handled the casualty investigation. There was a claim number, CL — 167225, assigned to James’ casualty, and Mr. Clifton Kuplen, claims attorney and assistant secretary, supervised the file.

In an effort to show there was no custom or practice in the insurance industry to have counsel issue settlement checks in payment of claims, appellants presented Mr. Ralph Gundelfinger, a claims manager for 21 years, who had supervised and settled thousands of claims. In his experience he had always issued an insurance company draft upon the settlement of a claim, and that insurance companies would issue their own drafts on settlement because it would be a definite safeguard because the case is not completely closed until the claim draft is accepted, endorsed and cashed. Attorney, Angelo J. Falcone, testified that when he entered the practice, he was employed by Western as a claim adjuster and always issued Western’s claim drafts to settle its cases. Western’s Kansas City claims manager, Gerald L. Wait, testified that although normally it was customary for Western to use its own adjusters to investigate and make an effort to conclude a claim, he has had occasions where the insured had negotiated a settlement and then called upon the insurer to reimburse him. There were other occasions when the insured, for its own reasons, handled the entire matter and negotiated a settlement, which might particularly be true where the insured was a business operation with its own management. It was the policy and practice of the company to approve settlements investigated and negotiated in a rural community by an insured. In a remote area, it would not be beyond the policy of the company, where court approval of a settlement in a remote area was being sought, to authorize an attorney handling the matter to issue his own check or draft in payment of the settlement or judgment, and then be reimbursed by the company.

Appellant’s petition, briefly stated as did the trial court in its conclusions, alleged these facts as bases for fraud: “(1) There was no insurance; (2) There was no liability; (3) Cash Jackson would have to pay any monetary recovery from his own pocket; (4) Any large amount of recovery would break the power company and cause loss of electricity to the ranch; (5) Playing upon the ‘natural fears of coiistered, restricted and untutored people’ of not having electricity for their community; (6) Deliberately directing that only plaintiffs be present at the court hearing; (7) Furnishing plaintiffs with a lawyer who did not explain to plaintiffs anything about the nature of their claim or of their son’s claim and who conducted his entire conference with plaintiffs in the presence of Cash Jackson, managing director of Se Ma No; (8) Inducing plaintiffs to agree to ‘an unconscionable, inadequate and improper settlement’; (9) Agreeing to a settlement to plaintiffs knowing that plaintiffs would never receive any part of the amount settled upon.”

The gist of the damages prayed for by appellants is for their loss occasioned by being required to expend large sums of money for medical expenses, etc., for James; and being required to assist and help him in personal ways; their loss of his companionship, pleasure and society; and for the loss of his services. It was pleaded by appellants that James’ case was reopened in Douglas County and in December, 1969, Western paid an additional $55,-000.00 for his injuries. The allegation was denied by Western insofar as it was inconsistent with the court records, said to be the best evidence. However, counsel stated to this court in oral argument that on December 29, 1969, $55,000.00 additionally was paid on the minor’s claim only by Western. Western used its own name on the drafts in payment of the additional amount of the minor’s settlement.

The trial court concluded, and properly so under this record, that there was no evidence whatsoever to support the allegations above numbered (2), (3), (4), (5), (6) and (7). The court found that appellants were literate persons of average intelligence and that they were influenced in the negotiations by Marl Kilgore, father of appellant Garnet J. Taylor, and leader of the religious order to which they belonged. Appellants first say that this finding was error “without finding additionally that the mode and style of life of appellants made them virtual psychological prisoners and incapable of any rational ability to decide money matters without independent, impartial advice, which they did not receive prior to, or at their settlement.” Appellants concede that they were literate in the sense that they can read or write and admit that they are of average intelligence. The trial court had these parties before it and was there able to judge their understanding and perception of the matters involved in their 1965 settlement. The reading of the transcript of the record here shows that these appellants had good ability to understand questions put to them, to which their -.answers were responsive. Although the evidence shows that the communal religious life in which appellants participated was cloistered and was rigidly governed by Marl Kilgore, the leader, there is no showing, or even a proper inference, that it was such as it would impair their ability to know and appreciate that their son’s injuries were compensable, and that Se Ma No was, or could be, liable therefor. It is true that Marl Kilgore participated in the discussions of settlement; both he and appellants thought it was reasonable after discussion with attorney Curry, and appellants’ present counsel in Kansas City. Clearly, from the record of the trial court in Douglas County, it was appellants’ decision to accept the “settlement out of court.” There was sufficient evidence for the court to find that appellants did have the independent advice of at least two, perhaps three, attorneys. The trial court did not err in failing to make the above additional findings.

Appellants next say that the court erred in its conclusion of law that the evidence failed to establish by clear and convincing evidence that the settlement was procured by Western’s fraud. It is first said that attorney Fisher’s statement to appellants that he was Cash Jackson’s lawyer (when in fact he was Western’s counsel) was a direct representation to them that there was no insurance. Jackson was, of course, Se Ma No’s manager. There is no evidence that Mr. Fisher’s statement was false. Under the normal liability insurance policy, as is well known, counsel for the insurer also represents the insured in defending or settling a claim. The real question boils down to whether, under the facts, Mr. Fisher was under a duty to disclose that there was insurance and that he represented Western. There are cases which say that silence may in proper circumstances amount to a representation upon which the other party may rely. “However, before such silence can amount to a representation there must be a duty to speak and there is no duty to speak where the other party has knowledge of the true facts.” National Alfalfa D. & M. Co. v. 4010 Washington, Inc., 434 S.W.2d 757, 765 (Mo.App.1968) (Italics added); “Silence or non-disclosure of a material fact, when used as an inducement to another, can be an act of fraud.” Miller v. Higgins, 452 S.W.2d 121, 124[3 — 5] (Mo.1970), and cases cited. See generally, 37 Am.Jur.2d Fraud and Deceit, § 145, p. 198, et seq. From all that appears here, the parties, appellants on the one hand and Cash Jackson (for Se Ma No) on the other, had been and were, dealing at arm’s length in settlement negotiations. Mr. Fisher was certainly not, under any stretch of the imagination, the agent of appellants. He thus could not be in a fiduciary or confidential relationship with them. Cf. Schneider v. DeMerville, 400 S.W.2d 109, 112 (Mo.1966). Mr. Fisher was there to effectuate a settlement, which clearly, before the hearing, had been agreed to by appellants’ own decision and upon advice of others (Marl Kilgore and at least two attorneys). Mr. Fisher had no duty to speak. There is nothing in the record to show that there was any' inducement to appellants by any concealment of the existence of insurance which would cause them to make the decision to settle the case for the amount offered. There is thus no evidence to support the trial court’s conclusion (in its memorandum separate from the findings of facts and conclusions of law) that there was a misrepresentation as to the existence of insurance. But even if there had been, under a sufficient showing of evidence, such a misrepresentation, the trial court was not incorrect in further concluding that it was not material because there was no showing that appellants believed that Se Ma No, which was primarily liable, was unable to satisfy any judgment obtained against it. Under the record, there is sufficient evidence to conclude that counsel’s use of his firm’s own checks to pay the settlement was not out of the ordinary as a practice or custom in this rural community.

The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    STATE of Missouri ex rel. LITTON BUSINESS SYSTEMS, INC., Relator, v. The Honorable Keith P. BONDURANT, Judge, Sixteenth Judicial Circuit Court of Missouri, Div. # 6, Respondent.
    No. KCD 27530.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.

      William R. Fish, Knipmeyer, McCann, Fish & Smith, Kansas City, for relator.
    Charles L. House, John S. Black, Swanson, Midgley, Eager, Gangwere & Thurlo, Kansas City, for respondent.
    Before PRITCHARD, C. J., and SHAN-GLER, DIXON, SWOFFORD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   WASSERSTROM, Judge.

Relator Litton Business Systems, Inc., filed application for a writ to prohibit the respondent trial judge from enforcing his order requiring relator to answer certain interrogatories. This court issued its preliminary rule of prohibition on September 4, 1974.

The underlying litigation before respondent was instituted by a petition of Litton Industries Credit Corporation against Broadway Motors, Inc., an automobile dealership in Kansas City, Missouri. Plaintiff seeks to recover $26,100.36 as the balance due on an agreement dated .October 21, 1971, by Broadway to lease certain computer equipment, together with interest from October 21, 1972, and an attorney’s fee of $5,000. The petition alleges that the lease agreement was assigned to plaintiff by relator. Broadway obtained leave to and did bring relator into the case as an additional counterclaim defendant.

Broadway then filed its answer and counterclaim in which it alleges that at the time of the lease agreement relator made certain representations with respect to the equipment and that it warranted and guaranteed certain results to be obtained by Broadway from the use of this equipment. The essence of the claimed representations and warranties respected the ability of the equipment to enable Broadway to employ fewer persons; that it would perform certain business functions and produce certain records; and that the equipment, programs and technical assistance to be furnished would enable Broadway to reduce its costs and expenses. Broadway alleges that the representations were false and fraudulent and that the warranties have been breached, for which it prays actual damages of $29,310.26 and punitive damages in the amount of $60,000.

Broadway then followed up these pleadings by the filing of interrogatories, those now in dispute being as follows:

“7. For automobile dealerships currently subscribing to and using Litton’s accounting system, or any component thereof, please state:
(a) The name, address and telephone number of such automobile dealership.
(b) Whether such automobile dealership subscribed to Litton’s LEADS program, accounts receivable program or payroll program. If all of the aforementioned programs are not leased, which programs are leased.
(c) The date when such automobile dealership entered into a lease of Litton’s accounting system.
“8. For each automobile dealership subscribing to Litton’s accounting system prior to October 21, 1971, please state:
(a) The name, address and telephone number of such automobile dealership.
(b) Whether such automobile dealership subscribed to Litton’s LEADS program, accounts receivable program and payroll program. If all of the aforementioned programs were not leased, which programs were leased.
(c) The date upon which such automobile dealership entered into a lease of Litton’s accounting system.
“9. For each automobile dealership, other than defendant, which has returned, discontinued or refused to further rent Litton’s accounting system, or any part or program thereof, please state:
(a) The name, address and telephone number of such automobile dealership.
(b) Whether such dealership initially leased Litton’s LEADS program, accounts receivable program, and payroll programs. If all of the aforementioned programs were not leased, which programs were leased.
(c) If the entire accounting system was not returned discontinued or refused, the components or parts thereof which were. “13. If Litton’s accounting system was tested, prior to marketing, in an automobile dealership, please state:
(a) The name, address and telephone number of such automobile dealership.
(b) Whether such automobile dealership paid a rental fee to Litton for the use of Litton’s accounting system.
(c) Whether such automobile dealership received any compensation or benefits from Litton, other than the use of Litton’s system.
(d) The dates of the testing period or periods.
(e) Whether every program, and every component thereof, of Litton’s accounting system was tested at such dealership.
(f) If every component and program of Litton’s accounting system was not tested at such dealership, please state the components and programs which were not so tested, and the reason or reasons why they were not tested.
“15. Please state what improvement or changes, if any have been made, between October 21, 1971 and March 20, 1973, in the machinery, programs and sales promotional techniques concerning Litton’s accounting system for automobile dealerships.
“17. Please state what defects, deficiencies, limitations or shortcomings have been discovered in Litton’s accounting system for automobile dealerships between October 21, 1971 and March 20, 1973.
“18. Please list the name, address, telephone number, employer and job title of all individuals who have knowledge of defects, deficencies and shortcomings listed in the answer to Interrogatory No. 17 above.”

Relator promptly objected to those interrogatories for the reason that “they are too broad and all inclusive and seek information not relevant or material to the issues involved in this case, nor are they designed to reasonably lead to the discovery of admissible evidence.” Those objections were overruled by respondent on May 23, 1974, subject, however, to the following provision: “The Court will duly consider any motions for protective orders that Litton Automated Business Systems, Inc. may file regarding the information sought by these interrogatories.”

Pursuant to that invitation, relator did file a motion for protective order. The motion made reference to the great expense which it would necessarily incur in compiling the information and preparing answers to interrogatories. The protective measures requested by relator in its motion were: 1) that relator be permitted to make available to Broadway the files from which the information sought could be obtained; or alternatively, 2) that Broadway be required to post a bond to assure relator of recovering the cost of answering interrogatories in the event the court should require Broadway to pay those costs as part of accumulated court costs upon completion of the case; and 3) that Broadway be prohibited from making any contact with relator’s customers who would be disclosed by the answers to interrogatories.

In support of its claim for the protective order, relator relied upon an affidavit of Paul J. Olivo, its Division Counsel. The gist of Olivo’s affidavit was that the cost of answering the interrogatories in question would be an estimated $28,310. Olivo explained the large size of this estimated cost on the ground that there is no central source from which the answers to those interrogatories can be obtained; that the requested information “is not categorized in the manner in which it is being sought;” and that in order to compile the data requested records would have to be searched in each of defendant’s 60 district offices. Olivo further stated that a sample survey taken by him indicated that a questionnaire would have to be developed from a central location to be sent to each of the 60 district offices at a cost of $110; that each of the district offices would have to assign people to review files and break down and study the records available at a cost of $470 per district office for a total cost for all the district offices of $28,200. Olivo further stated that complaints by customers respecting new computer installations are not kept by relator in the course of business, that analyses of such complaints might be required by expert programmers and could be developed only by personal contact type of effort and that the cost of this latter work is not reflected in the $28,310 cost estimate. Finally, Olivo set forth that relator had developed its customers only after years of concentrated sales effort, that the discovery of this list by interrogatories would greatly benefit Litton’s competition, and that contact by Broadway with relator’s customers would of necessity disclose the present litigation which would disturb the customer relationship and cause irreparable damage to relator.

By order dated August 2, 1974, respondent overruled the motion for protective order, stating: “The Court, having duly considered said motion, finds same to be without merit and further, that the relief sought is highly irregular and totally beyond the scope of protection contemplated by Civil Rule 57.01(c).” Relator was ordered to file answers no later than August 14, 1974, with a statement by the court that, “[u]pon failure to comply with this order, the Court will entertain an appropriate motion by defendant.”

On this application for prohibition against enforcement of the latter order, relator argues that respondent exceeded his jurisdiction for three reasons: a) because the interrogatories were irrelevant; b) because the interrogatories were oppressive and would require undue expense and effort to answer them; and c) because respondent refused the motion for a protective order. The first and third of these assignments are easily disposed of and will, therefore, be cleared away before addressing the crucial second point.

I.

RELEVANCY

At the time of respondent’s ruling, the scope of interrogatories was governed by former Rules 56.01 and 57.01(b), V.A. M.R. The counterpart new Rules 57.01(b) and 56.01(b)(1) set forth substantially identical provisions. Under those rules interrogatories may properly inquire into any matter relevant to the subject matter involved in the pending action, and it is not ground for objection that the facts sought would not be admissible evidence if it appears reasonably calculated to lead to the discovery of admissible evidence. State ex rel. Williams v. Vardeman, 422 S.W.2d 400, 406 (Mo.App.1967). The determination of relevancy under this standard is primarily a matter for the trial court, and an appellate court will not interfere when there is any reasonable basis for the trial court either permitting or denying the interrogatory. State ex rel. Norfolk & Western Ry. Co. v. Dowd, 448 S.W.2d 1 (Mo. banc 1969).

Judged in the light of the foregoing principles, the ruling of the trial court cannot be said to be unreasonable on the ground of relevancy. With respect to each of the interrogatories an at least reasonable argument can be advanced that each is reasonably calculated to lead to the discovery of admissible evidence. Thus, the first interrogatory in question, No. 7, inquires, as to automobile dealers currently subscribing to relator’s accounting system. Identification of these customers could well enable Broadway to find out by further investigation whether any of those other customers had experienced defects in equipment and programs similar to those of which Broadway complains in this litigation. Such adverse experience on the part of other customers would tend to support Broadway’s allegations concerning breach of warranty and guarantee.

Interrogatory No. 8 relates to automobile dealers who subscribed to relator’s system prior to October 21, 1971, the date of the Broadway leasing contract with relator. The identification of these customers would also tend, just as Interrogatory No. 7, to lead to evidence supporting Broadway’s allegations of breach of warranty and guarantee. In addition, any defects which had been discovered and communicated to relator prior to October 21, 1971, would tend to prove scienter, thus supporting Broadway’s allegations of fraud.

Interrogatory No. 9 seeks to identify any of relator’s automobile dealer customers who have returned, discontinued or refused to further rent relator’s accounting systems. This interrogatory is similar to, but even more pointed than Interrogatories 7 and 8, and is relevant for the reasons already stated.

Interrogatory No. 13 inquires into tests, if any, made by relator prior to the marketing of its accounting system to automobile dealers. Answer to this interrogatory would tend to disclose any inherent defects in relator’s equipment and programming system. This evidence could also tend to show knowledge by relator of the falsity of representations made to Broadway or a reckless disregard of whether such representations were true or false.

Interrogatory No. 15 seeks to discover what changes in automobile dealership systems were made by relator subsequent to October 21, 1971. The answer to this interrogatory would tend to sift out other customers whose accounting services from relator were significantly different from those furnished to Broadway, thus leaving those most likely potential witnesses who used equipment most closely akin to that supplied to Broadway. If a given customer had obtained poor results, Broadway would be protected from putting on the testimony of that witness only to have relator counter that the equipment had been altered from that supplied to Broadway so that the experience of the witness was not comparable. Likewise, if relator offered the testimony of customers to the effect that their experience with Litton equipment had been satisfactory, Broadway would be in a position to know whether the equipment and programs used by those customers were comparable to that which had been supplied to it.

Interrogatories No. 17 and 18 relate to defects in relator’s accounting system which relator has actually discovered. Interrogatory No. 18 goes on to seek identification of witnesses having knowledge of such defects. The information in answer to both of those interrogatories would bear directly upon the issue of breach of warranty and guarantee.

Accordingly, no valid objection lies to any of these interrogatories on the basis of lack of relevancy.

II.

PROHIBITION AGAINST CUSTOMER CONTACT

Broadway is not a competitor of relator, and its obtaining of a list of relator’s customers therefore could not give it any unfair trade advantage. Nor does relator allege that Broadway threatens to disclose the list to any competitor of relator. Nor does relator point to any other unfair tactic which has been actually perpetrated or threatened by Broadway. In the absence of such evidence, the court should not presume that Broadway or its attorneys would abuse the legal process or misuse the information obtained by means of legal discovery. Johnson Foils, Inc. v. Huyck Corp., 61 F.R.D. 405, 410 (D.C.N.Y.1973); Williams v. Johnson & Johnson, 50 F.R.D. 31, 33 (D.C.N.Y.1970). Volkswagenwerk Aktiengesellschaft v. Westburg, 260 F.Supp. 636 (D.C.Pa.1966), cited by relator, is distinguishable in that the protective order in that case was granted only after proof that the plaintiff had been making improper remarks to defendant’s customers whose identity «had been disclosed by answers to interrogatories. Unlike the situation in the case last cited, no need has been demonstrated here for the protective order under discussion. The denial of this relief was well within respondent’s discretion.

III.

OPPRESSIVENESS

The appearance of hardship which would be caused to relator by these interrogatories was sufficiently strong so that respondent invited relator to file a motion for a protective order. The order of August 2, 1974, can and should be read as meaning that it was denied only because respondent concluded that the relief sought was improper as a matter of law because “totally beyond the scope of protection contemplated by Civil Rule 57.01(c).” The same appearance of hardship arising from the showing made in the Olivo affidavit motivated this court to grant its preliminary writ in order to explore the legal availability of some appropriate relief. However, a change in that procedural law since the issuance of that preliminary rule now makes recourse to prohibition unnecessary and inappropriate.

On January 1, 1975, new discovery rules became effective in this state. New Rule 57.01(c) is innovative in Missouri procedure and is directly applicable to the present situation. This new provision is as follows:

“Option to Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, or from a compilation, abstract or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries.”

This new provision is taken from Rule 33(c) of the Federal Rules of Civil Procedure and should be understood as having the same purpose as did the adoption of the federal rule. The latter purpose is explained in the Notes of the Federal Advisory Committee as follows:

“This is a new subdivision, adapted from Calif.Code Civ.Proc. § 2030(c), relating especially to interrogatories which require a party to engage in burdensome or expensive research into his own business records in order to give an answer. The subdivision gives the party an option to make the records available and place [sic] the burden of research of the party who seeks the information. ‘This provision, without undermining the liberal scope of interrogatory discovery, places the burden of discovery upon its potential bene-fitee,’ Louisell, Modern California Discovery, 124 — 125 (1963), and alleviates a problem which in the past has troubled Federal courts. . . . ”

Inasmuch as the federal practice is relatively new, not many applications in particular factual circumstances have as yet been reported. Nevertheless, both the federal and Missouri rules have the same purpose and objective, and such federal precedent and interpretation as is available is entitled to consideration in construing and applying our new Missouri Rule 57.01(c). State ex rel. Kincannon v. Schoenlaub, 521 S.W.2d 391, decided by the Missouri Supreme Court En Banc April 14, 1975.

The key question with respect to the applicability of Rule 57.01(c) in a given situation such as the one here is whether “the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served.” With respect to this question, which is identical under Federal Rule 33(c), an authoritative text work, Wright and Miller, Federal Practice and Procedure, Volume 8, § 2178, p. 570, states:

“Whether this is the case will be for the party to whom the interrogatory is directed to resolve in the first instance. If he believes that he is entitled to avail himself of this provision and desires to do so, he will respond to the interrogatory by specifying the records from which the answer may be found and by undertaking to provide the interrogating party with a reasonable opportunity to examine them. If the interrogating party believes that the burden on him to find the answers from the records is substantially greater than it would be on the party who has the records, he may move under Rule 37(a) for a further answer to his interrogatory and the court will then decide whether the burden on the parties is substantially the same.
“If the court should decide that the burden is not substantially the same and that Rule 33(c) is not applicable, it may still refrain from ordering the interrogatory answered if answering will be unduly burdensome or expensive. And when Rule 33(c) is properly applied, the court may, in a proper case, require the interrogating party to reimburse his opponent for the expense of assembling the records and making them intelligible.”

In connection with its exercise of the option provided by Rule 57.01(c), no reason can be seen why the responding party should not include as part of that exercise an offer to take such voluntary action as it may desire so as to insure that the burden on the interrogating party would be no greater than it would be upon the responding party. Thus, in the present case, it would appear facially to be more burdensome for Broadway to send its agents to each of relator’s 60 district offices than it would be for relator to have its employees already working in those offices search the records. However, no reason is seen why relator in answering these interrogatories, if it exercises the option under Rule 57.-01(c), should not be able to include an offer to equalize the burden by bringing all of its pertinent records to one central point in Kansas City, Missouri, for inspection by Broadway. Some other feasible proposal for equalizing the burden may occur to counsel. This would be in accordance with the suggestion made by Judge Simeone and Mr. Walsh in “The New Missouri Rules on Civil Discovery,” 30 Journal of The Mo. Bar 463, l.c. 473, that the purposes of these new rules are that of “minimizing court intervention in pretrial discovery and maximizing the free flow of information between parties . . . .”

Along the same prescribed procedure of informal efforts at accommodation between counsel, it should be expected that the attorney for relator will disclose the type of information contained in its files and the manner in which it is recorded; to what extent that data is electronically recorded; and the problems, if any, and cost of retrieval. Relator’s counsel should also be prepared to answer the question, much debated before this court, as to why collection of data in each district office will require the services of high salaried employees paid at the rate of $20 per hour. Counsel for Broadway should, in turn, be prepared to modify its requests so as to permit the easiest and least expensive method for furnishing the information really needed by it. Only if these informal procedures fail will it become necessary for the parties to intrude upon the time of the trial court.

However, if it should become necessary for the trial court to become involved, then respondent will have the opportunity of further informal explorations with counsel. As indicated by the Supreme Court in State ex rel. Norfolk & Western Ry. Co. v. Dowd, supra:

“He [the trial court] can question the lawyers about the facts and their contentions. This is particularly true as to objections directed to relevancy and undue expense, oppression or annoyance, the very kind involved in the present case. He can do this informally, either in the courtroom or in chambers. He can rule orally, promptly, and without the delay involved in preparing a written opinion about each interrogatory. He can sort out what is really controverted between the parties as compared to what is only controverted on paper much better than an appellate court can ever do. He generally knows what lawyers, if any, tend to abuse the use of interrogatories, either by over-interrogating or by over-objecting.”

Moreover, the trial court can also, if necessary, exercise the very broad powers conferred upon him in devising an appropriate protective order under Rule 56.01(c) and, when appropriate, under Rule 58.01(a). The ruling of August 2, 1974, will and should not preclude a fresh appraisal by respondent of the need for some protective order. This could include, if deemed appropriate by respondent, a requirement that Broadway reimburse relator for the expense of assembling its records and making them available. Notes of the Federal Advisory Committee, 28 U.S.C.A., following Rule 33, p. 322; Wright and Miller, § 2178, p. 571; Concept Industries, Inc. v. Carpet Factory, Inc., 59 F.R.D. 546, 1.c. 550 (D.C.Wis.1973); and see Celanese Corp. v. E. I. duPont deNemours & Co., 58 F.R.D. 606 (D.C.Del.1973). See also State ex rel. St. Louis Land Clearance v. Godfrey, 471 S.W.2d 938, 940 (Mo.App.1971), where the St. Louis District of this court prohibited enforcement of interrogatories and relegated the interrogating party to inspection of records, the reason being that “the interrogatories would unreasonably shift the labor and responsibility of plaintiffs’ trial preparation onto the defendant.”

When the trial court entered its order on August 2, 1974, requiring answers to interrogatories, the intention necessarily was that these be conventional answers in the usual form of specific data in compiled form. When relator filed its application for prohibition, it did so in an effort to be relieved of that type of burden. However, at the present time, the answers need not be in the old conventional form, and instead relator will have an opportunity to escape excessive burdens and expense by use of the option now available for the first time under Rule 57.01(c).

This new option and the procedures opened up in connection therewith have not yet been utilized. For the reasons set forth in State ex rel. Norfolk & Western Ry. Co. v. Dowd, supra, prohibition was seldom appropriate even under the old rules. See “Prohibition — To Prevent Discovery Proceedings,” 35 Mo.L.Rev. 533 (1970). For even more reason, there should be little legitimate occasion now for asking the appellate courts to intervene in the interrogatory procedures, since the effective date of new Rule 57.01(c). Certainly no such occasion exists in this case where there has not yet been any opportunity for the parties to pursue the new procedures or for the trial court to exercise the broad discretions now permitted.

The preliminary rule is quashed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    Collette F. HOLLIPETER and Ronald D. Hollipeter, Plaintiffs-Respondents, v. STUYVESANT INSURANCE COMPANY, a corporation, Defendant-Appellant.
    No. KCD 26874.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.

      John R. Caslavka, Kansas City, for defendant-appellant; Shughart, Thomson & Kilroy, Kansas City, of counsel.
    Walter A. Raymond, Kansas City, for plaintiff s-respondents.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   SOMERVILLE, Presiding Judge.

The Stuyvesant Insurance Company, defendant below (hereinafter referred to as “Stuyvesant”), has appealed from a summary judgment rendered in favor of Collette F. Hollipeter and Ronald D. Hollipeter, husband and wife, plaintiffs below (hereinafter referred to as “Hollipeters”), in an action for damages for breach of contract.

Stuyvesant banks on one point for appellate relief — the doctrine of election of remedies “barred” the Hollipeters from prosecuting the action for damages for breach of contract.

A rather prolix statement of pertinent facts antedating and postdating the filing of the breach of contract action by the Hollipeters is unavoidably necessary in order to comprehend and place Stuyvesant’s singular point on appeal in proper disposi-tional context.

On or about August 4, 1963, the Hollipet-ers sustained personal injuries in a two car collision. Following the collision they initiated separate actions for damages in the Circuit Court of Cass County, Missouri, against Joseph Dewey McCommon, Jr., hereinafter referred to as “McCommon”, owner and operator of one of the two cars involved in the collision. Both actions proceeded to final judgments in favor of the Hollipeters. Collette F. Hollipeter obtained a judgment for $7,500.00 against McCom-mon, and Ronald D. Hollipeter obtained a judgment for $5,057.50 against McCommon.

MeCommon’s liability carrier, Crown Insurance Company, had a treaty of reinsurance with Stuyvesant. Crown Insurance Company went into receivership in West Virginia and the judgments obtained by the Hollipeters against McCommon were never satisfied. In view of this turn of events general executions were issued to enforce payment of the judgments and, ancillary thereto, Stuyvesant was summoned as garnishee.

Article VII of the treaty of reinsurance between Crown Insurance Company and Stuyvesant provided as follows: “The actual payment in cash by the Company of any loss shall be a condition precedent to any recovery under this Agreement, and subject to such condition, the liability of the Rein-surer shall follow that of the Company and shall be subject within the applicable policy limits in all respects to all the general and special stipulations, clauses, waivers and modifications of the Company’s policy, binder or other undertaking, and any endorsements thereon.” A common principal issue was joined in both garnishment proceedings, namely, whether Article VII of the treaty of reinsurance provided for indemnity against “loss” or “liability”.

Prior to trial of the issues joined in the garnishment proceedings, the Hollipeters and Stuyvesant, by contract, compromised and settled both garnishment proceedings for “$5,500.00 and costs.” Subsequent thereto and prior to dismissal of the garnishment proceedings, Stuyvesant repudiated and refused to honor the settlement contract. Buffeted by this new turn of events, the Hollipeters proceeded to trial in the garnishment proceeding. The separate garnishment proceedings were consolidated for trial and resulted in a judgment in favor of Stuyvesant and against the Hollipeters. Stripped of all unnecessary legal verbage, the adverse judgment rendered against the Hollipeters was predicated upon a finding by the Circuit Court of Cass County that the treaty of reinsurance entered into between Crown Insurance Company and Stuyvesant “provided for indemnity” by Stuyvesant “against loss rather than indemnity against liability”, and since Crown Insurance Company “made no actual payment in cash of any loss to the Hollipeters” there was “no liability” on the part of Stuyvesant to the Hollipeters under the terms of the reinsurance treaty. The Hollipeters filed a notice of appeal from the adverse judgment. However, they failed to perfect their appeal and upon motion of Stuyvesant the appeal was dismissed on June 29, 1971, by the Kansas City Court of Appeals.

On March 16, 1971, the Hollipeters filed suit in the Circuit Court of Jackson County, Missouri, against Stuyvesant seeking damages for breach of the contract compromising and settling the garnishment proceedings. Subsequent to dismissal of the Holli-peters’ appeal from the adverse judgment against them in the consolidated garnishment proceedings, Stuyvesant filed a motion for summary judgment in the breach of contract action. Stuyvesant’s motion for summary judgment was bottomed on certain undisputed facts heretofore delineated: (1) During the pendency of the consolidated garnishment proceedings, and prior to any judgment therein a contract was entered into between Stuyvesant and the Hollipet-ers compromising and settling the garnishment proceedings for $5,500.00 and costs; (2) Stuyvesant repudiated and refused to honor the settlement contract; and (3) thereafter the Hollipeters pursued the consolidated garnishment proceedings to a final judgment adverse to them.

The sole legal theory espoused by Stuyvesant in support of its motion for summary judgment may be stated as follows: When Stuyvesant repudiated and refused to honor the contract compromising and settling the consolidated garnishment proceedings, the Hollipeters at that time had two inconsistent remedies which they could pursue, an action for damages for breach of contract or pursual of the consolidated garnishment proceedings to final judgment, and, having elected to follow the latter course, the Hollipeters were now precluded, as a matter of law, from bringing the action for damages for breach of contract under the doctrine of election of remedies.

The Hollipeters countered Stuyvesant’s motion for summary judgment with one of their own. Their legal theory being, in essence, that the doctrine of election of remedies was inapplicable because they did not have two inconsistent remedies available to them; instead, in fact, they had but one available remedy, an action for damages for breach of contract, and their pur-sual of the consolidated garnishment proceedings to a final judgment adverse to them was pursual of an imaginary or mistaken remedy.

This court notes, parenthetically, that Stuyvesant at no time affirmatively pleaded that its repudiation of the contract and the Hollipeters’ subsequent pursual of the consolidated garnishment proceedings effected a mutual rescission of the contract of settlement and, therefore, no contract of settlement existed upon which to bring suit. The pleadings and proceedings at the trial level in toto, viewed objectively, reveal that the only issue presented below, as here, was whether the Hollipeters were barred under the doctrine of election of remedies from bringing the breach of contract action. A different analysis would flout reality.

The trial court overruled Stuyvesant’s motion for summary judgment, but sustained the Hollipeters’ motion and entered judgment in their favor, to-wit, that they “have and recover from the defendant, Stuyvesant Insurance Company, the sum of $5,500.00 plus interest at the rate of six per cent (6%) per annum together with costs.”

As previously noted, Stuyvesant appealed from the adverse judgment rendered against it on the sole ground that the doctrine of election of remedies “barred” the Hollipeters from bringing the action for damages for breach of contract.

A tacit unanimity of opinion exists between Stuyvesant and the Hollipeters regarding certain fundamental principles inherent in the doctrine of election of remedies. The doctrine is sententiously expressed in De Mott v. Great American Ins. Co. of New York, 234 Mo.App. 31, 131 S.W.2d 64, 67 (1939) [cited with approval and adopted in Pemberton v. Ladue Realty & Construction Co., 359 Mo. 907, 224 S.W.2d 383 (1949)]: “The law is well settled that where a party has a right to pursue one of two inconsistent remedies, makes his election, institutes suit and prosecutes it to final judgment, or receives something of value on the claim, he cannot thereafter pursue another and inconsistent remedy.” The tacit unanimity of opinion existing between the parties extends to a well recognized collateral limitation inherent in the doctrine, namely, a distinction must be recognized between pursuit of one of two or more inconsistent remedies and pursuit of an imaginary or mistaken remedy, and pursuit of an imaginary or mistaken remedy does not bar the subsequent pursuit of a viable remedy. De Mott v. Great American Ins. Co. of New York, supra, 131 S.W.2d 1.c. 67 and Pemberton v. Ladue Realty & Construction Co., supra, 224 S.W.2d 1.c. 385. Prom this point on the heretofore tacit unanimity of opinion between Stuyvesant and the Hollipeters ceases.

Stuyvesant vigorously contends that the Hollipeters’ pursual of the consolidated garnishment proceedings to a final judgment, although adverse to them, was the pursuit of a viable remedy, thereby barring them from bringing the breach of contract action. With equal vigor the Hollipeters contend that pursuit of the consolidated garnishment proceedings to a final judgment adverse to them was the pursuit of an imaginary or mistaken remedy and, therefore, they are not barred from bringing the suit for damages for breach of contract. Thus, the apical question, the answer to which is dispositive of this appeal, is whether the Hollipeters in the consolidated garnishment proceedings pursued a viable remedy or a mistaken and imaginary remedy? The answer to this vexing question lies in the consolidated garnishment proceedings and the basis for the adverse judgment rendered therein against the Hollipeters.

Treaties of reinsurance have long been a prolific source of litigation in this and other states. Much of the litigation in this state has concerned itself with whether a particular treaty of reinsurance constituted a contract for indemnity against loss or indemnity against liability. Reference hereafter to particular principles is narrowed to those relevant to the single issue raised by Stuyvesant on appeal. The “general rule” in this and other states is that the “ordinary” treaty of reinsurance indemnifies the primary insurer against loss rather than against liability. The distinction between “ordinary” treaties of reinsurance providing for indemnity against loss and those providing for indemnity against liability assumes critical importance in determining or fixing the rights of a judgment creditor (occupying a status similar to that of the Hollipeters) to proceed by way of garnishment against a reinsurer when the primary liability carrier has become insolvent. If the treaty of reinsurance is construed as an “ordinary” treaty providing for indemnity against loss, garnishment will not lie in favor of a judgment creditor as garnishor against the reinsurer as garnishee. If the treaty of reinsurance is construed as providing for indemnity against liability, garnishment may lie in favor of a judgment creditor as garnishor against the reinsurer as garnishee. The leading case in this state proclaiming the principles heretofore enunciated is Homan v. Employers Reinsurance Corporation, 345 Mo. 650, 136 S.W.2d 289 (1939). See also First National Bank of Kansas City v. Higgins, 357 S.W.2d 139 (Mo. banc 1962). In both Homan and First National Bank of Kansas City, the treaties of reinsurance involved were construed as contracts of indemnity against liability and that the respective judgment creditors were third party beneficiaries thereof, and, therefore, equitable garnishment would lie in favor of the respective judgment creditors as garnishors against the respective reinsurers as garnishees.

Construction of the treaty of reinsurance entered into between Crown Insurance Company and Stuyvesant, however, is not before this court. That crucial task was performed by the Circuit Court of Cass County in the consolidated garnishment proceedings. The judgment rendered therein, which became final for all purposes when the Hollipeters’ notice of appeal was dismissed by the Kansas City Court of Appeals because of their failure to perfect the appeal, was obviously predicated upon a finding that the treaty of reinsurance in question, as a matter of law, was a contract for indemnity “against loss rather than indemnity against liability”. Having so construed the treaty of reinsurance, the Circuit Court of Cass County further found that since Crown Insurance Company “made no actual payment in cash of any loss” to the Hollipeters “there [was] no liability on the part” of Stuyvesant, as garnishee, to the Hollipeters. On the combined basis of these findings, the Circuit Court of Cass County entered judgment in the consolidated garnishment proceedings exonerating Stuyvesant as garnishee.

The judgment in the consolidated garnishment proceedings can only be construed as an adjudication that the Hollipet-ers had no remedy by way of garnishment against Stuyvesant. By virtue of the doctrine of res judicata that final judgment, whether legally correct or incorrect, rings with inexorable finality regarding any present contention by Stuyvesant that the Hollipeters had a viable remedy by way of garnishment. Payne v. St. Louis Union Trust Company, 389 S.W.2d 832, 836-838 (Mo.1965), and Butler v. Manley, 416 S.W.2d 680, 682 (Mo.App.1967).

Stuyvesant presently argues, in obvious contradiction to the position taken by it in the consolidated garnishment proceedings, that Sections 379.195 and 379.200, RSMo 1969, V.A.M.S., regardless of the terms of and the construction given the reinsurance treaty, gave the Hollipeters a statutory remedy by way of garnishment. This argument completely overlooks and ignores the fact that the language, “if liability there be”, contained in line ten of Section 379.195, supra, rendered said statutory sections inapplicable since the Circuit Court of Cass County in the consolidated garnishment proceedings found and held that there was no liability on the part of Stuyvesant, due to the fact that the treaty of reinsurance indemnified Crown against loss rather than liability and Crown had suffered no loss.

The Hollipeters, in point of fact, did not have two inconsistent remedies. They had no remedy by way of garnishment. This court cannot ignore the Circuit Court of Cass County’s construction of the treaty of reinsurance inasmuch as the doctrine of res judicata relegated the final judgment in the consolidated garnishment proceedings to the realm of finality for all time and all purposes as between Stuyvesant and the Hollipeters. Payne v. St. Louis Union Trust Co., supra, and Butler v. Manley, supra.

The Hollipeters’ pursuit of the consolidated garnishment proceedings to final judgment adverse to them was nothing more than pursuit of an imaginary or mistaken remedy. Hence, they were not “barred” by the doctrine of election of remedies from bringing the action for damages for breach of contract against Stuyvesant. De Mott v. Great American Insurance Co. of New York, supra, and Pemberton v. Ladue Realty & Construction Co., supra.

The joint motions for summary judgment and admission in support thereof, particularly in conjunction with the issue joined by the Hollipeters’ petition and Stuyvesant’s answer, patently disclose that no genuine issue of fact existed for trial and that the breach of contract action was ripe for disposal by way of summary judgment. Tangentially, this conclusion is solidly buttressed by the fact that both Stuyvesant and the Hollipeters moved for summary judgment. When the undisputed facts of this case are viewed in the context of the controlling and applicable principles of law heretofore iterated, it becomes self evident that the trial court properly overruled Stuyvesant’s motion for summary judgment and correctly sustained the Hollipeters’ motion for summary judgment.

The judgment below is affirmed.

All concur.

      . Stuyvesant has failed to cite, and this court’s own independent research has failed to disclose, any case construing Sections 379.195 and 379.200, RSMo 1969, V.A.M.S., to be applicable to reinsurers under “ordinary” treaties or contracts of reinsurance, i. e. those providing for indemnity against loss rather than liability. In Melco System v. Receivers of Trans-America Ins. Co., 268 Ala. 152, 105 So.2d 43 (1958), the Alabama Supreme Court in construing statutes virtually identical to Sections 379.195 and 379.-200, supra, held as follows: “But, it has never been held in Alabama that these sections apply to a reinsurer. Reinsurance is not a new development in the insurance field. The Legislature might very well include the reinsurer in the statute, but that is a legislative matter, and until that is done, we are constrained to hold that the sections do not warrant a construction or interpretation that the Legislature intended to go beyond an insurer to include a reinsurer under an ‘ordinary’ reinsurance agreement, which we have found the one in controversy to be.”