author: GUNN, Judge. KELLY, Presiding Judge

text:
    Olan BYRN and Betty L. Byrn, guardians of Brian M. Byrn, Plaintiffs-Appellants, v. AMERICAN UNIVERSAL INSURANCE CO., Defendant-Respondent.
    No. 37755.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 22, 1977.

      J. William Holliday, Kahoka, for plaintiffs-appellants.
    J. Patrick Wheeler, Canton, Anderson & McMurray, Barry M. Anderson, Keokuk, Iowa, for defendant-respondent.
   GUNN, Judge.

In this rather classic conflict of laws or, if preferred, choice of laws case, we are confronted with the issue of whether to apply the Iowa guest statute or Missouri tort law. Judy Lynn Byrn a Missouri resident, was a passenger in a car owned and operated by Robert W. Anderson, an uninsured motorist and an Iowa resident. The car left the road and struck an embankment and a utility pole in the State of Iowa. Judy Byrn and Anderson died as a result of the accident. This action was instituted by the guardians of Judy Byrn’s sole surviving child, Brian M. Byrn, in an attempt to recover from defendant, American Universal Insurance Company, the maximum coverage provided under the uninsured motorist provision of the insurance policy issued by the defendant to Judy Byrn. The pertinent portion of the uninsured motorist provision provides that the “company will pay all sums which insured or legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury . including death resulting therefrom . sustained by insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile. . ” (emphasis added) The trial court granted summary judgment in favor of the insurance company, holding that the Iowa guest statute, (§ 321.494 Iowa Code, 1975), which provides that an owner or operator of a car will not be liable for damages to a guest unless, inter alia, such damage was caused as a result of the reckless operation by him of such motor vehicle, was applicable and barred recovery on the facts as stipulated in this case. The plaintiffs appeal, contending that the Iowa guest statute should not be applied in this case. They argue that Missouri’s ordinary negligence law should be applied thereby entitling them to recovery.

The case was tried before the trial court upon stipulated facts. The parties agreed that Robert Anderson was a resident of Iowa; that his car was registered in Iowa; and that the accident occurred in Iowa. They also agreed that the guest-host relationship was created in Iowa; that Robert Anderson was an uninsured motorist as defined in the insurance policy; and that the accident resulted from his negligence. It was agreed that Mr. Anderson’s conduct was not reckless and wanton as contemplated by the Iowa guest statute. Finally, it was stipulated that Judy Byrn and her son were residents of Missouri and that the damages for the wrongful death of Judy Byrn exceed $10,000, which is the limit of the defendant’s liability under the policy.

For recovery under the uninsured motorist provisions of the policy, plaintiffs have the burden of proving: 1) that Mr. Anderson was uninsured; 2) that he would be legally liable to Judy Byrn; and 3) the amount of such liability. Hill v. Seaboard Fire & Marine Ins. Co., 374 S.W.2d 606, 609 (Mo.App.1963). Through stipulation, the parties have agreed that the first and third requirements have been met. We are therefore concerned only with the second— whether Anderson would be legally liable to Judy Bryn. As noted, the policy provides that “the company will pay sums which the insured or legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile.” (emphasis added). While it is not necessary for the insured or his legal representative to obtain a judgment from the uninsured motorist prior to enforcing his rights against his own insurance company, Hill v. Seaboard Fire & Marine Ins., supra, the plaintiff must show that the uninsured motorist would have been liable to the insured. See Crenshaw v. Great Central Ins. Co., 527 S.W.2d 1 (Mo.App.1975), where the court said: “In order to prevail in this contract action plaintiffs must establish that at the time this litigation against the insurer was commenced they were legally entitled to recover damages from the owner or operator of the uninsured highway vehicle. In other words, as an essential element of plaintiffs’ cause of action in contract plaintiffs mus”t be able to demonstrate their right to recover for the wrongful death of their son.” Id., at 4. This requirement is consistent with the underlying purpose of the uninsured motorist statute, § 379.203 RSMo Supp.1975, which is to give the same protection to the person injured by an uninsured motorist as he would have had if he had been injured in an accident caused by an automobile covered by a standard liability policy. Brake v. MFA Ins. Co., 525 S.W.2d 109, 112 (Mo.App.1975); Webb v. State Farm Mutual Automobile Ins. Co., 479 S.W.2d 148, 151 (Mo.App.1972). If the injured party is not legally entitled to recover from the uninsured motorist, then the injured party’s insurance company is not liable under the uninsured motorist provisions of the contract. The case of Noland v. Farmers Ins. Exchange, 413 S.W.2d 530 (Mo.App.1967), illustrates this point. In Noland, the plaintiff, who was within the coverage of an uninsured motorist provision, was injured when the car she was riding in was struck from behind by a car driven by the plaintiff’s husband. He was an uninsured driver. Under the terms of the insurance policy involved in Noland, the insurance company would pay all sums which the owner or operator of an uninsured motor vehicle would be “legally responsible to pay as damages to the insured.” Id., at 532. The court held that since neither spouse may maintain a civil action against the other during coverture based on a tort occurring during coverture, the uninsured motorist — in this case the plaintiff’s husband — was not legally responsible to pay damages to the insured. Therefore, in harking back to the policy provisions, the court found that the insurance company was not liable under its policy. See also Crenshaw v. Great Central Ins. Co., supra.

Applying the foregoing legal rubric to the case before us, we must determine whether the plaintiffs would have been entitled to recover damages from Robert Anderson arising from the wrongful death of Judy Byrn. Resolution of this issue turns on the applicability of the Iowa guest statute to the underlying question of Robert Anderson’s liability. If the Iowa law were to apply, Robert Anderson .would not be liable, as the plaintiffs have stipulated that his conduct was not wanton or reckless as envisioned in the statute. If Missouri law, which does not limit the liability of a host-driver, were held to control, Robert Anderson would have been liable, as the defendant stipulated that his conduct was negligent. We are thus confronted with a choice of laws problem, to be resolved under the “most significant relationship” test adopted in Missouri in Kennedy v. Dixon, 439 S.W.2d 173 (Mo. banc 1969). The rule adopted in Kennedy is set forth in § 145 of the Restatement 2nd on Conflict of laws:

“§ 145. The General Principle.
“(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, as to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
“(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
“These contacts are to be evaluated according to their relative importance with respect to the particular issue.”

Section 145 framed in reference to § 6 which sets out general choice of law principles:

“§ 6 Choice-of-Law Principles
“(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
“(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
(a) The needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.”

In Griggs v. Riley, 489 S.W.2d 469 (Mo.App.1972), this court was confronted with the applicability of another state’s guest statute. After a comprehensive analysis of the various factors listed in § 145 and § 6, the court found § 145(2)(e) and (d) and § 6(b) and (c) to be the most significant in analyzing which state’s law should apply. Id., at 473. In applying these factors to the question of whether the plaintiffs would be legally entitled to recover from Robert Anderson, (whether the Iowa guest statute should apply), we find that Iowa would have the most significant relationship to this issue, and that its guest statute would apply to bar plaintiffs’ recovery. Under the “contract points” listed in 145, we find:

1) Robert Anderson was an Iowa resident;
2) The guest-host relationship was created in Iowa;
3) The accident occurred in Iowa;
4) Judy Byrn was employed in Iowa and had apparently left her car at her place of employment to ride on the Iowa highways with Mr. Anderson. There was no indication that her trip with Mr. Anderson, which began in Iowa, was to terminate anywhere other than Iowa.

Balanced against the foregoing, is the fact that Missouri’s sole contact was that the guest, Judy Byrn, was a Missouri resident. The question then, is whether the single factor of Ms. Byrn’s Missouri residence is sufficient to overcome the weight of the Iowa contact points. Even under Kennedy v. Dixon, supra, and Griggs v. Riley, supra, we think not.

In reviewing the determinative factors of § 6 as that section applies to tort situations, (the respective policies and interests of Missouri and Iowa), we find that Iowa’s interest in having its law applied to the potential liability of Robert Anderson overrides any Missouri interest in the determination of this issue. As stated by the Iowa Supreme Court in Keasling v. Thompson, 217 N.W.2d 687 (Ia. banc 1974), the purpose of that State’s guest statute is to protect “ ‘the good Samaritan’ from liability to free-riding passengers as distinguished from passenger liability when the owner or driver is receiving some definite and tangible benefit.” Id., at 690. Thus, through enactment of its quest statute, Iowa has expressed a particular interest in protecting the gratuitous host. Missouri’s interest in determining Robert Anderson’s liability to the plaintiffs concerns our policy to compensate parties negligently injured. See Griggs v. Riley. However, due to the fact that the host was an Iowa resident, that the guest-host relationship was entered into in Iowa, and injury occurred there, we are compelled to find that Iowa’s interests override those of Missouri. Thus, the question of Robert Anderson’s liability would be determined under Iowa law. This result is consistent with the comment to subsection (2) of § 145 of the Restatement Second:

“[W]hen the plaintiff is injured . while riding as a guest passenger in an automobile, the state where his relationship ... to the driver of the automobile is centered may be the state of the applicable law. This is particularly likely to be the case if other important contacts, such as the place of injury or the place of conduct or the domicil or place of business of the parties, are also located in the state.” Restatement, Second, Conflicts of Laws § 145, Comment on Subsection (2) at 421-22.

See also Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970). As Iowa’s law would govern this issue, and further, as the plaintiffs have stipulated, Robert Anderson would not be liable under the guest statute —certainly, had Ms. Byrn lived and brought suit in Iowa against Mr. Anderson she could not have recovered — we must hold that the plaintiffs are therefore not “legally entitled” to recover from him. This being the ease, the defendant is not liable to the plaintiffs under the uninsured motorist provisions of the insurance contract. Cren shaw v. Great Central Ins. Co., supra; Noland v. Farmers Ins. Exchange, supra.

We note that this is an unusual means for a conflict of laws problem to arise. Normally, such problems arise when the parties to the suit contend that different states’ laws apply to the cause of action being pursued. In analyzing which law applies, the forum is able to discern the various states’ interests in the parties and the applicability of the various § 145 and § 6 factors. In this case, however, the suit is on a contract, see Crenshaw v. Great Central Ins. Co., supra, entered into in Missouri by a Missouri citizen and a corporation licensed to do business in Missouri. Thus, on the surface, only Missouri is involved in this litigation. However, due to the contract provision, the defendant’s liability is premised on the liability of a third person who is not a party to this suit. The choice of laws problem arises in determining the third party’s legal responsibility to the plaintiff in this case. We thus find ourselves in the anomalous position of finding that as Iowa’s guest statute applies the third party’s liability to the plaintiff, that statute also bars the plaintiff’s recovery from the defendant. We find ourselves applying Iowa law in a suit between two parties situated in Missouri who are suing and being sued on a contract entered into in Missouri. As to these two parties, certainly Iowa has no real interest in seeing its guest statute applied; yet we find ourselves compelled to apply it.

For their second point plaintiffs argue that if we find Iowa’s guest statute controlling on the choice of laws issue, we should nevertheless not apply the law as it is “unconstitutional as violative of the equal protection clause of both the Constitution of the United States and the Constitution of the State of Iowa.” This argument is somewhat chimerical, as the Iowa Supreme Court has upheld the constitutionality of Iowa’s guest statute against the specific charge leveled here by plaintiffs. Keasling v. Thompson, supra; Strauser v. Bryant, 217 N.W.2d 706 (Iowa banc 1974). And in the vintage case of Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929), a guest statute was held not to be in violation of the United States Constitution equal protection clause.

Plaintiffs state that they are “not asking [this] court to openly declare the Iowa law unconstitutional,” and, indeed, we shall not. Under the Full Faith and Credit clause of the United States Constitution, one state cannot refuse to give effect to a substantive defense available under the applicable law of another state. Bradford Electric Light Company, Inc. v. Clapper, 286 U.S. 145, 52 S.Ct. 571, 76 L.Ed. 1026 (1932). This applies in this case even though Iowa’s guest statute expresses a different policy than that existing in Missouri.

The judgment is affirmed.

KELLY, P. J., dissents.

LITZ, J., concurs.

KELLY, Presiding Judge

(dissenting.)

I respectfully dissent. In concluding that the appellants are barred from recovery by reason of the Iowa guest statute the majority, I believe, have chosen to afford to the respondent a defense which should not be available to it in the courts of this State because this cause of action is not a tort action and I conclude that by this decision the majority has engrafted onto the contract of insurance the law of a foreign state which was not contemplated by the parties to the contract at the time it was entered into.

Since the advent of the uninsured motorist endorsement on automobile liability insurance policies issued for the protection of the insured motorist who, unfortunately, has fallen victim to the negligent and irresponsible tort-feasor who has carried no liability insurance to protect those whom he might injure or kill, much of the litigation has centered around the construction of the terms “legally entitled to recover damages.” How these terms are construed depends upon how the reviewing court understands the purpose for the uninsured motorist endorsement. I will not lengthen this opinion by attempting to review the history of this type of insurance coverage nor the statutory enactments requiring it, but the appellate courts of Missouri have decided that the purpose of the Missouri Uninsured Motorist Statute, § 379.203 RSMo.1969, V.A.M.S. is to afford to the person injured by an uninsured motorist the same protection he would have, had he been injured or damaged by an automobile being operated by an insured motorist. Crenshaw v. Great Central Ins. Co., 527 S.W.2d 1, 4 (Mo.App.1975) and cases cited therein. Under this view, in order to prevail in what is admittedly a contract action, the injured insured suing on the contract to recover under the uninsured motorist provision of his automobile policy must establish (1) that the other motorist was in fact uninsured, (2) that at the time the litigation against the insurer was commenced he was legally entitled to recover damages from the owner or the operator of the uninsured vehicle, and (3) the amount of the damages caused by the uninsured motorist. Hill v. Seaboard Fire & Marine Ins. Co., 374 S.W.2d 606, 609[1] (Mo.App.1968) and its progeny.

However, the crux of the problem is construction of the terms “legally entitled to recover.” While the uninsured motorist coverage required by the statute does not specify what, if any, defenses are available to the insuror, the Courts have construed it to mean that the defendant must be proved legally liable to the insured, Hill v. Seaboard Fire & Marine Ins. Co., supra, and therefore the insuror is entitled to the same defenses to which the uninsured motorist would be entitled were the insured to pursue his remedies against the uninsured motorist rather than against the insuror. Reese v. Preferred Risk Mutual Ins. Co., 457 S.W.2d 205 (Mo.App.1970) implies that the insured, to recover, must be free of contributory negligence if raised by the insuror. Noland v. Farmers Ins. Exchange, 413 S.W.2d 530, 533[5] (Mo.App.1967) barred the plaintiff-wife from recovering against her husband, the uninsured motorist, who rear-ended a car in which his wife was a passenger but whose owner and operator had uninsured motorist coverage with the defendant insuror. The basis for this decision was that since the wife could not maintain a civil action against her husband for a personal tort, therefore the uninsured motorist — her husband — could not be legally responsible to pay damages to the insured under the terms of the uninsured motorist policy. Crenshaw v. Great Central Ins. Co., supra, barred the plaintiff from recovering in a wrongful death case by reason of the two year statute of limitations applicable to wrongful death actions. These cases are not controlling here because they do not involve any defense not afforded any motorist in Missouri under Missouri law.

The majority opinion relies on a series of choice of law decisions involving the application of the guest statute in personal injury actions against a defendant motorist and not those against the insuror on an uninsured motorist endorsement such as we have here. In resorting to choice of law cases where tort principles alone are involved I believe that the majority opinion has ignored other legal principles and considerations which have a more significant bearing on what law is to be applied in this case and what defenses should be available to this respondent.

The contract of insurance on which this cause of action is founded is a contract entered into within the State of Missouri by a Rhode Island corporation doing business in Missouri, through an agent whose offices are in Kahoka, Missouri, and purchased by a Missouri domiciliary, to cover her automobile which was registered and garaged in Missouri. The policy of insurance was required by the Uninsured Motorist Law of Missouri to contain an endorsement for the protection of persons insured under the policy of insurance who “are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury etc.” Pursuant to this statutory mandate the policy of insurance sold to the deceased insured contained that endorsement. The policy was written to afford the insured the protection required by Missouri law for a Missouri insured in every state of the United States, its territories or possessions, as well as Canada. It was not incorporated in the contract of insurance between the insured and the insurer for the purpose of affording the uninsured motorist free liability insurance. Missouri has no guest statute, and although the insurer is entitled to those defenses available to the Missouri uninsured motorist were he sued in a Missouri court, I seriously question whether this contract of insurance also entitles the insurer to any defenses not available to Missouri uninsured motorists in the courts of Missouri.

Since this is a contract action, I believe the choice of law principles controlling are those peculiar to contracts. In contract actions choice of law may be approached from different angles. The familiar rule is that the construction of the contract is governed by the law of the place where it was made. If that approach is employed in this case, then it would appear that the law of Missouri would be controlling because according to the terms of the policy of insurance it became effective at 12:01 a.m. on January 8, 1971, at the address of the named insured, which was stated in the policy of insurance to be R.R. # 3 Kahoka, Missouri, 63445. Or even under the most recently formulated theory of choice of laws, the “grouping of contacts” or “center of gravity” theory, certainly the most significant contacts with respect to the contract of insurance necessarily dictate that Missouri law be applied. The majority opinion has based its choice of laws on the contacts with the State of Iowa, i. e. the tort contacts. I would make the choice of law dependent upon the contract contacts. It is obvious that Iowa had no contacts if that approach is adopted, and therefore Iowa can have no interest in what law is applied. The uninsured tort-feasor, an Iowa resident, is not a party to this suit nor is his estate. And even though this contract contains a Trust Agreement provision, any suit against the estate of the deceased uninsured tort-feasor in Iowa would be barred by the Iowa guest statute, since it necessarily would have to be brought in Iowa where Iowa law, and the Iowa guest statute, would be applied. I do not view this inability of the insurer to recoup its losses as significant, for it is in the nature of this line of insurance that recovery against the uninsured motorist is unlikely at best. Were it otherwise, the insured would not proceed under the uninsured motorist endorsement but would sue the tort-feasor directly.

I am aware of the fact that Missouri has in tort cases continued to enforce against Missouri domiciliaries in some circumstances, the guest statutes of sister states, despite the fact Missouri has no statute so regressive and anachronistic to apply to cases arising in Missouri. However, that is no reason, in my opinion, to continue that favoritism shown foreign tort-feasors where the cause of action is not in tort but is in contract. The very purpose of § 379.-203 RSMo.1969, V.A.M.S., is to afford relief to Missouri residents where they were formerly without hope of compensation by reason of injuries and damage visited upon them by the negligence of irresponsible owners and operators of motor vehicles. In enacting the Uninsured Motorist Law of Missouri the General Assembly did not limit the coverage thereby afforded to the operation of motor vehicles within the four corners of the State of Missouri. In writing its policy of insurance the insurer did not limit the coverage to these same four corners of the State of Missouri; rather, it extended the coverage to each of the United States, its territories and possession, and even Canada. Nothing, however, was set forth in the policy to the effect that defenses peculiar to the several states, the territories and possessions of the United States and Canada would be interposed should a claim be made under the contract of insurance; the only inkling was inclusion of the terms “legally entitled to recover” in the contract of insurance. While this might alert the policy holder to defenses available to Missouri residents under Missouri law it did not notify them that defenses unavailable to Missouri residents by reason of accidents occurring in Missouri would be available to bar recovery were the injuries and damages sustained in a state having a guest statute.

I believe that the terms “legally entitled to recover” are ambiguous in this context. This court, in Reese v. Preferred Risk Mutual Ins. Co., supra, came to this same conclusion in the posture of that case. The Kansas City District of this court, in Noland v. Farmers Ins. Exchange, supra, concluded that in the posture of that case they were not. If, as I believe, these terms are ambiguous, they must then be construed against the insurer — the drafter of the insurance policy — and in favor of the insured.

Turning then to choice of law as applied to contracts, I would hold that the insurer, under the statute and the terms of this insurance policy, is entitled to the same defenses against the claim of the appellants in this case available to any Missouri uninsured motorist had the accident occurred in Missouri; but that it is not entitled to interpose the defense of the Iowa guest statute to bar appellant’s recovery. This approach is, I think, consistent with either the “law of the place” or the “grouping of contacts” approach to choice of law. By reaching this conclusion, the purpose for which the Missouri Uninsured Motorist Law was enacted will be attained without taking advantage of the insurer, and by giving the insured the benefit of construing an ambiguous condition precedent against the party to the law suit who drafted the instrument, a familiar rule of construction in contract cases will have been observed.

I would reverse the judgment of the trial court and enter, in this court, a judgment for the appellants. Rule 84.14 V.A.M.R.

      . The emphasized phrase is taken from § 379.203.1 RSMo Supp.1975.

      . Were it difficult to determine which state, Missouri or Iowa, had the most significant relationship, we would be obligated to apply the substantive law of the place of the tort. Kennedy v. Dixon, supra. But in this case it is manifest that the most significant contacts are in Iowa, and the Iowa law must be applied.
      In order for us to find for plaintiffs, however sympathetic we might be to their cause, we would have to ignore the application of the § 145 and § 6 principles followed in Kennedy v. Dixon, supra, and move toward the direction of allowing recovery merely because Missouri has a “better law” on the subject — an extreme theory adopted by the state of Wisconsin. In Zelinger v. State Sand & Gravel Co., 38 Wis.2d 98, 156 N.W.2d 466 (1968), and Conklin v. Horner, 38 Wis.2d 468, 157 N.W.2d 579 (1968), the Wisconsin Supreme Court found that guest-host statutes were anachronistic vestiges of the law of enterprise liability and per se pernicious. The Wisconsin courts applied Wisconsin law which allowed recovery for ordinary negligence as “better law” in choice of laws situations where Wisconsin was the forum, even though the § 145 and § 6 principles of the guest-host statute states outweighed Wisconsin interests. In Zeiinger, supra, it was said at 473: “While in this case we consider our own law to be the better law, we must state it is applied for that reason and not because it is the law of the place of wrong or the law of the forum. All other considerations being the same on this issue, we would apply the law of the nonforum state if it were the better law.” See also Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966). The “better law” rule has been criticized for its obvious imprecise method of application. Anot., 29 A.L.R.3d 603 (1970), provides an excellent and complete discussion on the current rule status of choice of laws regarding multi state tort action, including reference to the “better law” rule. We also note that in the Wisconsin cases applying the “better law” rule, there were substantial contacts in Wisconsin; not so here.

      . In Cipolla v. Shaposka, supra, the driver was a Delaware resident, driving a car licensed and registered in that state. While driving in Delaware, with a passenger who was domiciled in Pennsylvania, the car was involved in an accident. In a suit arising from this accident, the Pennsylvania court, applying the “most significant contacts” approach, found that the Delaware guest statute was applicable in determining the driver’s liability. Pennsylvania, like Missouri, has no guest statute. A vigorous dissent was written suggesting that Pennsylvania law should have been applied. See also Neumeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y. S.2d 64, 286 N.E.2d 454 (1972), in which three rules applicable to various factual patterns arising out of guest statute cases are set forth. The second rule applies to the facts of the accident in the case before us:
      “When the driver’s conduct occurred in the state of his domicile and that state does not cast him in liability for that conduct, he should not be held liable by reason of the fact that liability would be imposed upon him under the tort law of the state of the victim’s domicile.” Id., 335 N.Y.S.2d at 70, 286 N.E.2d at 457-58.

      . The constitutionality of guest statutes was upheld in: Justice v. Gatchell, 325 A.2d 97 (Del.1974); Cannon v. Oviatt, 520 P.2d 883 (Utah 1974); Tisko v. Harrison, 500 S.W.2d 565 (Tex.Civ.App.1973). But several states have found guest statutes in violation of both the federal and state constitutions: Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974); Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974); Johnson v. Hassett, 217 N.W.2d 771 (N.D.1974); Brown v. Merlo, 8 Cal.3d 885, 106 Cal.Rptr. 388, 506 P.2d 212 (banc 1973).

      . There is another viewpoint, recognized by this court in Reese v. Preferred Risk Mutual Ins. Co., 457 S.W.2d 205 (Mo.App.1970) — the “fault” approach followed by Wisconsin, Michigan, Rhode Island, Oregon, Louisiana, Tennessee and DeLuca v. Motor Vehicle Accident Indemnification Corp., 17 N.Y.2d 76, 268 N.Y.S.2d 289, 215 N.E.2d 482 (1966). However, even Reese impliedly, at least, indicated that contributory negligence would be a defense for the insurer in a suit on the uninsured motorist endorsement to his automobile liability insurance policy.


source: Caselaw Access Project

author: WEIER, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Patrick T. HOLDEN, Defendant-Appellant.
    No. 37119.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 22, 1977.

      Robert A. Hampe, St. Louis, for defendant-appellant.
    John Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Samuel G. Bertolet, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   WEIER, Judge.

In a jury-waived case, defendant Patrick T. Holden was convicted of obtaining a controlled substance by means of deceit. He was sentenced to two years in the Department of Corrections. Defendant appeals contending that the information lacks the allegedly essential requirement of reliance by the pharmacist and that the evidence fails to show the pharmacist relied on defendant’s deceit when he filled the prescription.

The information reads as follows:

[0]n or about the 7th day of December, 1973, the defendant(s) did willfully, unlawfully and feloniously and by means of deceit obtain a certain Controlled Substance, to-wit: Phenmetrazine, by uttering, offering and passing as true and genuine a certain false instrument, to-wit: a prescription purported to be drawn by Dr. Earl Brand for 75 mg. preludin when in fact it was not so drawn by Dr. Earl Brand, to Thomas King, a licensed pharmacist, with the felonious intent then and there to obtain Controlled Substance aforesaid, when the said Patrick T. Holden, then and there well knew the said prescription to be false and untrue; contrary to Missouri Revised Statutes in such cases made and provided, and against the peace and dignity of the State.

The parties stipulated that preludin is merely the trade name for the chemical compound phenmetrazine. Since phenme-trazine was on Schedule II as of the date of this' offense, according to page five of State’s Exhibit No. 3 which is the Secretary of State’s certification of lists of controlled substances compiled by the Division of Health; § 195.170, RSMo 1971 Supp., rather than § 195.250, RSMo 1971 Supp., is the applicable statute covering this offense. Section 195.170 provides:

No person shall obtain or attempt to obtain a controlled substance ... by fraud, deceit, misrepresentation, or subterfuge; or by the forgery or alteration of a prescription or of any written order; or by the concealment of a material fact; or by the use of a false name or the giving of a false address.

The information in this case states defendant obtained a controlled substance “by means of deceit.” The narrow issue in this case is whether reliance by the pharmacist is an essential element of obtaining controlled substances by deceit under § 195.170.

The recent case of State v. St. John, 544 S.W.2d 5, 8[1] (Mo.banc 1976), handed down after briefs were filed in this case, rules this point. The Missouri Supreme Court there held that reliance was not an element of the offense of obtaining a controlled substance by means of deceit under § 195.-250 which provides:

It is unlawful for any person to obtain or attempt to obtain any controlled substance listed in Schedule III, IV or V . by the following means:
(1) Fraud, deceit, misrepresentation, or subterfuge; or
(2) The forgery or alteration of the prescription or of any written order; or
(3) The concealment of a material fact; or
(4) The use of a false name or the giving of a false address.

Section 195.170 is virtually identical to § 195.250 and there can be no reason to hold that reliance is an element of obtaining a controlled substance by deceit under § 195.-170 when it is not an element of the offense under § 195.250. Defendant’s contentions are without merit.

The judgment is affirmed.

CLEMENS, P. J. and DOWD, J, concur.


author: PER CURIAM:

text:
    LEE C. RICHARDS, INC., Plaintiff-Appellant, v. Walter J. BREWER and Bessie Brewer, his wife, Defendants-Respondents.
    No. 36524.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 22, 1977.
    Lloyd E. Eaker, Clayton, for plaintiff-appellant.
    Dewey S. Godfrey, Jr., St. Louis, for defendants-respondents.
   PER CURIAM:

Plaintiff appeals from an adverse judgment entered by the circuit court of St. Louis County, sitting without a jury, denying its prayer for the recovery of a brokerage commission allegedly earned under an exclusive real estate sales contract. Because the trial court found that plaintiff failed to do all things necessary to effectuate a sale, during the contract period, by not disclosing the name of the defendant to the buyer, it entered judgment for defendant on the theory of an equitable estoppel. We reverse with directions to the trial court to enter judgment for the plaintiff.

In Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), our Supreme Court, in interpreting Rule 73.01 for the standard of review of nonjury cases, mandated that an appellate court will sustain the decree or judgment of a trial court unless there is no substantial evidence to support, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Applying these criteria to the instant case, we hold that the trial court’s judgment not only erroneously declared the law but also found no support by substantial evidence.

For clarity we set forth that evidence which, in our view, is dispositive of the case.

On August 8, 1972, defendants entered into a six-month exclusive sales contract with the plaintiff to sell a one-acre lot in St. Louis County for $18,750. The contract provided:

. . If within six months after date of this listing said agent shall produce a purchaser ready, willing and able to purchase for the above price, or if said property shall be contracted by us to be sold to or exchanged with any person procured either by the undersigned Agent, or by us, or by any other person, or if within an additional term of two months the property is contracted to be sold or exchanged with anyone contacted by said Agent within the first period, we will pay said Agent a commission.

Lee Richards, President of Lee Richards, Inc., then listed the property with Resco, a real estate service. Ellen Kennedy, a real estate broker with Alice Blake, Inc., saw the listing and showed the property to Mr. and Mrs. Robert Scales, the prospective purchasers, and also Mr. Ralph Scales, the brother of Mr. Robert Scales. The Scales made an offer of $10,000 for the lot.

Ellen Kennedy conveyed this to Lee Richards who conveyed it to the Brewers. The Brewers rejected this as “ridiculously low” and made a counter-offer of $17,500. When confronted with the offer of $10,000 the Brewers asked Richards who the potential purchasers were but he refused to tell them. The counter-offer was conveyed to the Scales who rejected it and sought a meeting with the property owners. There is a conflict of testimony at this point: Ralph Scales claimed he made the request to meet to Ellen Kennedy and he never spoke with Mr. Richards. Robert Scales also testified he had no dealings with Mr. Richards. Lee Richards claimed he spoke with a Mr. Scales (he did not remember which one) and although he refused the request for a personal meeting, he offered to convey another figure to the Brewers. Richards could not recall whether he told the Brewers of the Scales’ request to meet with them. When their request to meet with the property owners was denied, the Scales asked Ellen Kennedy to retufn the earnest money and contract, which she did.

Ralph Scales saw the Brewers’ name on the counter-offer of $17,500 and by looking through the tax records at the courthouse obtained their address. Approximately two and one-half months after the Scales requested the return of their earnest money and contract, Ralph Scales contacted the Brewers and negotiations resumed. On March 7, 1973, the Scales and Brewers entered into a contract for the sale of the property for the consideration of $16,500. This was seven months after the Brewers entered into the exclusive listing contract with Lee Richards, Inc.

The plaintiff’s claim is that he fulfilled his contractual obligations and it appears that he has. Under the terms of the contract, Richards would recover a commission if the Brewers’ property was sold within the six-month contractual period to anyone contacted by Richards, the Brewers, or “any other person” or, if the property was sold within an additional two months to someone “contacted” by Richards during the six-month period. It cannot be denied that the contact made with the Scales by Richards and his subagent, Ellen Kennedy, was sufficient to collect a commission. Ellen Kennedy informed the Scales of the availability of the property for sale, showed the property to them, and relayed their offer to Richards. This offer was rejected by the Brewers who made a counter-offer which Ellen Kennedy presented to the Scales. Perhaps the best indication that the Scales were “contacted” is the fact that they purchased the property, Kyle v. Kansas City Life Ins. Co., 356 Mo. 331, 201 S.W.2d 912, 914 (Mo.1947).

Moreover, Richards does not lose his commission because Ellen Kennedy, his sub-agent, showed the property to the Scales and negotiated directly with them, 12 Am. Jur.2d, Brokers, § 190. Nor does Richards lose his commission because the Brewers and Scales completed the negotiations without his services. Under the contract, for Richards to earn his commission after the six months had expired, it was only necessary that the sale be to someone contacted by Richards; it does not matter that the parties reached an agreement by themselves.

However, the trial judge apparently found that Richards’ contractual duties included a duty to bring the parties into personal contact and because Richards had not done so, he had not performed all of his contractual obligations. We feel, however, that the trial judge misread the contract. The contract between the Brewers and Lee Richards did not require a personal contact. Rather, it stated: “. . . or if within an additional term of two months the property is contracted to be sold or exchanged with anyone contacted by said Agent within the first period. . . . ” (Emphasis added.) It is impossible to read the above language as requiring a personal contact between the parties. Plaintiff, therefore, sufficiently demonstrated performance of all that was required of him under the express terms of the contract.

The only theory which could support the defendant’s claim of estoppel is that Richards breached his general fiduciary duty as an agent. This theory was not argued by defendants nor explicitly relied upon by the judge. Arguably, placing the parties in personal contact may be required under this duty. It has been stated as a general rule that the broker has a duty to disclose the name of the prospective purchaser when so requested by the principal, 12 Am.Jur.2d, Brokers, § 89. The requirement of disclosure must, however, be read in the context of materiality of the disclosure and a showing of prejudice, see King v. Pruitt, 365 Mo. 823, 288 S.W.2d 923, 925 (1956); United Farm Agency v. W. C. Cook, 283 S.W.2d 6, 14 (Mo.App.1955); Annot., 2 ALR3d 1119 (1965).

In the present case, the non-disclosure appears neither material nor prejudicial. In King v. Pruitt, supra, the failure to disclose was considered material because there was evidence that the agent’s principal, the seller, if she had known the buyer’s identity might not have sold at all or sold only at a higher price, id. 288 S.W.2d at 925. The fact that the Brewers eventually sold the property to the Scales at a negotiated price suggests that the non-disclosure was immaterial. The delay and added costs to the Brewers allegedly stemming from Richards’ refusal to bring the parties together does not bar Richards from recovery of the commission. Richards refused to disclose to the Brewers the identity of the potential purchasers but this refusal was not the cause of the delay in negotiations. Richards did agree to and did communicate the Brewer’s counter-offer. The delay in negotiations stems from the Scales’ reaction to Richards’ refusal to arrange a meeting. Richards had no obligation to arrange such a meeting since he was not the Scales’ agent. Although it is not exactly clear what Richards’ motive was for refusing to allow the parties to meet (he indicated that he thought the parties were so far apart in their offers it would be pointless for them to meet), it is clear that he had no legal duty to bring them together. The defendants, therefore, have not met their burden of proving a ground for equitable estoppel by “clear and satisfactory evidence,” Peerless Supply v. Industrial Plumbers, 460 S.W.2d 651, 666 (Mo.1971).

Arguably, defendants’ claim of estoppel might be premised on Richards’ general fiduciary duty “. . . not to do any act which makes the transaction more difficult or burdensome for his employer or which endangers the transaction. . . . ” Herb Tillman v. Sissel, 348 S.W.2d 819, 824 (Mo.App.1961). There are the factual questions of whether Richards’ refusal to bring the parties together and Kennedy’s return of Scales’ earnest money made the negotiations sufficiently more burdensome to bar recovery and the question of Richards’ responsibility for such difficulties. There is an additional fatal flaw in the theory. Whether the broker made the transaction more difficult seems most properly considered in the context of whether Richards was the “procuring cause” of the sale. That question is not dispositive when the broker’s responsibility is defined in the contract as it is here. Nichols v. Pendley, 331 S.W.2d 673, 676 (Mo.App.1960); R. Kratovil, Real Estate Law § 152, p. 73 (1946). The exclusive listing contract involved here did not make the commission dependent on whether Richards was the “procuring cause” of the sale but on whether he “contacted” the purchaser.

The trial court’s judgment should, therefore, be reversed because (1) plaintiff performed all of the obligations under the contract; and (2) the court had no evidence to support its decision to the contrary. And moreover, the court based its decision upon an erroneous declaration of the law in ruling that plaintiff was estopped.

Judgment reversed with directions to the trial court to set aside its judgment for the defendant and to enter judgment for the plaintiff for its commission, interest, and costs.

Judges concur.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Eugene TILLEY, Defendant-Appellant.
    No. 37692.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 22, 1977.
    Brent J. Williams, Clayton, Rosecan, Pop-kin & Chervitz, Alan G. Kimbrell, St. Louis, for defendant-appellant.
    John Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Evelyn M. Baker, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant Eugene Tilley was convicted by a jury of stealing over $50. Because the jury could not agree upon punishment, the court sentenced defendant to three years in the custody of the Department of Corrections (§ 546.440, RSMol969).

The facts that frame the issues are simple. On July 16, 1975, David Angle parked his pickup truck in front of his house in the City of St. Louis and went to bed. At about 1:30 a. m. he was awakened by breaking glass. He looked out of a window and saw the defendant inside the truck attempting to take out the radio-stereo. Mr. Angle dressed and ran out of his house with a shotgun in his hand. A parked car sped off in a northeasterly direction. Angle then ordered defendant to get out of the truck and lie on the sidewalk until the police arrived. After defendant was arrested, he told the police that he intended to sell the items which he was attempting to steal. Mr. Angle searched his truck and found that his toolbox was missing. It contained tools for which he had paid something in excess of $100 approximately two years before. The radio-stereo had been purchased by him some six months before for the price of $70.

In his motion for new trial after new counsel had been appointed, defendant contended that he did not knowingly and intelligently waive his right to counsel and was prejudiced by being required to represent himself. The Sixth Amendment of the Constitution of the United States provides: “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his de-fence.” When an accused waives this right, he must competently and intelligently waive the protection of this amendment. Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ Adams v. United States ex rel. McCann, 317 U.S. 269 at 279, 63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435.” Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). In Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948), the Supreme Court of the United States said: “The fact that an accused may tell him [the judge] that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of, counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.” See also State v. Gee, 408 S.W.2d 1, 3 (Mo.1966). In this connection, the burden of producing evidence of voluntary and understanding waiver of the right to counsel shifts to the State. Morris v. State, 456 S.W.2d 289, 292[2] (Mo.1970).

We examine the record to determine whether defendant knowingly and intelligently waived his right to counsel. On August 28, 1975, the public defender was appointed by the court as attorney for the defendant. When the case was called for trial in October of that year, an assistant public defender appeared with the defendant and the following colloquy was had between the court and the defendant:

THE COURT: This is Cause No. 75-1898, State of Missouri vs. Eugene Tilley, wherein the charge is Stealing $50 or over.
Mr. Tilley, as I understand it, you have expressed the desire to represent yourself in this case; is that correct, sir?
THE DEFENDANT: Yes, sir.
THE COURT: As you know, previously this Court appointed the Public Defender Bureau of the City of St. Louis to represent you. That was done back on August 28, 1975, in Division No. 16 of this Court.
Now, you have a constitutional right to be represented by counsel. Do you understand that, sir?
THE DEFENDANT: Yes, sir.
THE COURT: But as I further understand, you have decided that you do not wish to be represented by counsel at the trial of your case; is that correct?
A Yes, sir.
Q Despite the fact that you do have the constitutional right to have an attorney represent you, and, in fact, one has been appointed to represent you; is that correct?
A Yes, sir.
THE COURT: May I, for the record, inquire of you why you do not wish to have the Public Defender’s office represent you in the trial of this case?
THE DEFENDANT: Because all he wanted me to do is plead guilty. He kept telling me, just plead guilty, plead guilty. And I didn’t — I’m not guilty, so I didn’t want to plead guilty. But the way he was talking, I didn’t have a chance, you know, so he said, ‘Plead guilty.’
THE COURT: In other words, as I gather, your attorney, you are of the opinion he felt the case was such that he felt the State would get a conviction, and he felt it would be better for you to plead guilty than try the case. Is that pretty well what, does that sum up what he said?
THE DEFENDANT: Yes.
THE COURT: And you differ with that analysis?
THE DEFENDANT: Yes.
THE COURT: And you do wish to go ahead and try the case representing yourself?
THE DEFENDANT: Yes, sir.

It is clear after a fair reading of the record that defendant understood that he had a constitutional right to be represented by counsel and that he did not desire counsel who had been appointed for him to continue to represent him because this lawyer was insisting that he plead guilty. However, there is no indication in the record that defendant understood the dangers and disadvantages of self-representation, as required by the authorities cited herein. The court made no examination into defendant’s awareness of the elements of the offense charged, possible defenses and mitigating circumstances. Later during the trial, defendant’s lack of knowledge and training in this regard, as compared to that of a trained attorney, became quite obvious.

There could be no question but that defendant under the evidence submitted to this jury was guilty of some crime. He could have been charged by the circuit attorney’s office with tampering with a motor vehicle but the crime charged was the stealing of property of the value of $50 or more under §§ 560.156 and 560.161, RSMol969. If the value of the property stolen was less than $50, then defendant could be punished by a fine or imprisonment in the county jail or by both such fine and imprisonment. However if the value of the property was at least $50, then punishment could be enlarged to include two to ten years in the penitentiary as well as imprisonment in the county jail or a fine. The issue of value was therefore very important to determine whether defendant was guilty of the crime charged. Evidence on this issue consisted of testimony of Mr. Angle which in substance established that he had purchased the radio-stereo combination six months before the alleged theft for $70 and had purchased tools some two years before for something over $100. The tools were not found in the defendant’s possession when he was apprehended in Mr. Angle’s truck. The radio-stereo was apparently still in the truck and there was some dispute as to whether it was still in place or had been taken out of its place in the truck. The only question with regard to value was a double question, the response to which could be referred to either portion of the question. It is reported in the record as follows:

Q Sir, can you tell us, to the best of your knowledge, what you paid, the combined value of the tools and the stereo?
A It was about two hundred dollars.

It may be the rule that, where the property is secondhand, proof as to its cost and its length of use may be put before the jury and this constitutes evidence of value. State v. Everett, 448 S.W.2d 873, 876[1] (Mo.1970); State v. Bresse, 326 Mo. 885, 33 S.W.2d 919, 921[3] (Mo.1930). But the reference in the statute is to the value of the property on the open market. State v. Armstrong, 361 S.W.2d 811, 817[4] (Mo.1962). Because no objection was made as to the standard of value and no cross-examination or preliminary question with regard to using such a standard was requested by defendant, State v. Napper, 381 S.W.2d 789, 791[1] (Mo.1964), there was sufficient evidence of value to go to the jury. It is not that this matter was raised as a contention by the defendant to afford him a new trial but rather it is one phase of the trial where trained counsel may have been able to render invaluable assistance to the defendant to convince the tryers of fact that defendant was guilty of a lesser crime than the crime charged.

Another area where defendant’s lack of skill became evident was during jury selection. Out of a panel of twenty-four prospective jurors, defendant was entitled to eight and the State to four peremptory challenges to reduce the panel to the twelve who would try the case. The voir dire examination was conducted by counsel for the State and by the court. Although the defendant’s right to interrogate was explained to him, he did not participate in asking any questions of the members of the panel. No challenges for cause were made by the defendant. After peremptory challenges were made by both sides, defendant ended up with a jury which might not be considered entirely unbiased by an experienced attorney. Juror 1 had several friends or relatives who served on law enforcement bodies, one of whom had been killed. Juror 2 had been a victim of crime in that the place of business in which this juror was interested had been burglarized. Juror 3 had served on a criminal jury before. Juror 4 had served on a jury in a criminal case and had had his auto and camper trailer stolen. Juror 5 had been a victim of purse snatching. Juror 6 was a very good friend of a detective on the police force. Juror 7 had been a member of a criminal jury which had returned a verdict of guilty. Juror 8 was the widow of a former policeman and also had a nephew in California and two cousins in Milwaukee who were policemen. Juror 9 had been the victim of a house burglary. Juror 10 had served on a criminal jury five or six times. Juror 11 had been the victim of car theft and had a nephew who was a police officer. Juror 12 had had his house and garage burglarized.

Because the record fails to prove defendant made an intelligent waiver of his right to counsel, the judgment is reversed and the cause is remanded for a new trial.

CLEMENS and DOWD, JJ., concur.


author: HOGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jackie Lyman FARMER, Defendant-Appellant.
    No. 10308.
    Missouri Court of Appeals, Springfield District.
    Feb. 28, 1977.

      Lawrence E. Kinnamon, Jr., G. Spencer Miller, Morris, Foust, Beckett & Poniek, Kansas City, for defendant-appellant.
    No appearance, for plaintiff-respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   HOGAN, Judge.

The offense is operating a motor vehicle while intoxicated (second offense); the punishment assessed upon a bench trial is confinement for six months. Defendant appeals.

About 8:30 p. m. on December 20, 1973, defendant was driving east on Highway 32 in Cedar County; he attracted the attention of westbound Trooper J. D. Starbuck by “weaving off on the shoulder and across the center line.” Upon trial, Trooper Starbuck testified as follows without objection:

“Q. What did you do after you observed him there . . .?
A. Turned around and followed him back east until he turned off north on a dirt road.
Q. Would you describe what you observed, if anything, at that time?
A. About his driving, of course he continued on east on [Highway] 32 weaving off on the shoulder and across the center line. He made a left turn onto a dirt road and went completely over on the left side of this dirt road. We stopped him at that time and arrested him for intoxicated driving.
Q. Would you describe [defendant’s] personal appearance as you recall it?
A. Yes. He smelled strongly of an alcoholic beverage. He was unsteady on his feet, bloodshot eyes.
⅜ ¾: * sfc ⅜
Q. Do you recall if he indicated whether or not he had been drinking?
A. I don’t recall whether we asked him, it was obvious.
Q. What did you do after you stopped him? . . .
A. We arrested him for intoxicated driving. . . . We drove him into the Cedar County Sheriff’s Office.”

The interrogation continued, and eventually the prosecutor put this question:

“Q. Officer Starbuek . . . based upon your observation of the defendant on the evening we are talking about, do you have an opinion as to whether or not he was intoxicated?
A. Yes, I do.”

Defendant then objected that Trooper Starbuek was not qualified to express an opinion, and the questioning proceeded:

“THE COURT: Mr. Starbuek, you have been on the Highway Patrol how many years?
A. Twelve years.
THE COURT: In that period of time you had, I take it, frequent opportunities to observe people who were drinking?
A. Yes, I have.
THE COURT: From your observation of this defendant you say he was intoxicated?
A. Yes, I figured he was intoxicated.
THE COURT: I will overrule the objection.
Q. . [W]ith regard to intoxication, what is your opinion?
A. My opinion is that he was intoxicated.
[Hereupon, defendant’s counsel interjected:]
Q. Officer, your opinion that you have just expressed to the Court here that [defendant] was intoxicated, you are basing that upon your own observations and not upon the result of the breathalyzer test?
A. Yes, this was my opinion before I gave him the breathalyzer.
Q. You would have considered him to be intoxicated regardless of whether or not you gave him the breathalyzer?
A. Yes, I would.”

The defendant testified in his own behalf. Much of his testimony was devoted to the activities in which he had taken part during the earlier part of the evening and to the circumstances in which his “breathalyzer” test was taken. He did testify that Highway 32 was “hazardous and slick” on December 20,1973, and that prior to his arrest he had taken some prescribed medication containing codeine.

In this court counsel has briefed six points of error, four of which, according to counsel, assume federal constitutional dimension. Some preliminary observations are appropriate. This is a bench-tried ease; no motion for new trial was necessary to secure appellate review of the conviction, and our principal concern is whether there was substantial evidence to support the finding of guilt. State v. Hatfield, 465 S.W.2d 468, 470[5] (Mo.1971); State v. Bruns, 522 S.W.2d 54, 55[1] (Mo.App.1975). A further basic principle to be borne in mind is that timely objection is required to preserve questions for review even when they have some constitutional basis. State v. Tyler, 454 S.W.2d 564, 567[2] (Mo.1970); State v. Wintjen, 522 S.W.2d 628, 630[5] (Mo.App.1975).

During trial and upon this appeal counsel has expended considerable effort attempting to demonstrate that the result of the breathalyzer test was, for various reasons, unreliable. To begin with, it appears that the trial court took no account of the breathalyzer test; when its tentative findings were announced at the close of the hearing, it was so stated. Further, and with deference, counsel considerably overestimates the importance and significance of chemical breath tests in cases of this kind. Chemical blood, breath, saliva or urine tests have been routinely administered and offered in evidence in drunken driving cases since the “implied consent” law was enacted in 1965, Laws of Mo.1965, p. 670, but proof of intoxication by means of a chemical test is in no sense requisite to a conviction of driving while intoxicated. The elements of the offense charged are simply 1) that defendant operated a motor vehicle, and 2) that he was intoxicated while so doing. State v. Grove, 204 S.W.2d 757, 759[5] (Mo.1947); State v. Kissinger, 343 Mo. 781, 783-784, 123 S.W.2d 81, 82[1] (1938); State v. Dodson, 496 S.W.2d 272, 273[1] (Mo.App.1973). Section 564.442, RSMo Supp. 1975, attaches certain evidentiary weight to the results of chemical tests for intoxication, properly administered, but the statute which defines and denounces the offense of driving while intoxicated, § 564.440, RSMo 1969, does not require the State to prove gross intoxication; the State need only prove a degree of intoxication which impairs the ability of a person to operate an automobile. State v. Cox, 478 S.W.2d 339, 341-342[5, 6] (Mo.1972); State v. Campbell, 292 S.W.2d 297, 299 (Mo.1956). Alcoholic intoxication is a fact which may be proved by any lay witness who has had a reasonable opportunity to observe the defendant. State v. Powell, 306 S.W.2d 531, 532-533 (Mo.1957); State v. Revard, 341 Mo. 170, 175, 106 S.W.2d 906, 909[7] (1937); State v. Scaturro, 509 S.W.2d 491, 493 (Mo.App.1974). The evidence given by Trooper Star-buck was manifestly sufficient to sustain the judgment of conviction regardless of the accuracy of the breathalyzer test. See State v. Griffin, 320 Mo. 288, 294, 6 S.W.2d 866, 867-868 (1928); State v. Bruns, supra, 522 S.W.2d at 55-56; Kansas City v. Douglas, 483 S.W.2d 760, 761-762 (Mo.App.1972).

Several additional assignments of error have been made. One flatly asserted claim of prejudicial error is that the trial court erred in denying the defendant a jury trial. The record shows only that the prosecution was instituted on December 26, 1973, by the filing of a Uniform Traffic Ticket; on January 11, 1974, a change of venue was taken from the Cedar County Magistrate Court to the Circuit Court of Cedar County; defendant appeared in circuit court on January 27,1975, waived reading of the information and entered a plea of not guilty. May 22, 1975, was set as the trial date, and on that day an information was filed in the circuit court. Defendant failed to appear on the date set for trial and a capias warrant issued for his arrest. Defendant was taken in custody and released on bond, conditioned to appear May 30, 1975. On May 28,1975, defendant’s counsel asked leave to withdraw. A hearing was had on the motion and counsel was allowed to withdraw. The cause was reset for July 23, 1975, and defendant was told to obtain the services of another attorney. Defendant appeared on July 23,1975, with present counsel, who requested a continuance, stating that his firm had only had the case four or five days. The trial court reviewed its record, noting that defendant had been contacted by the clerk a week before the trial and had been asked if he wanted a jury trial. The trial court stated it was his information defendant had said he did not desire a jury trial. The record indicates no request that the trial court summon a jury nor any objection to proceeding to trial without a jury. The matter of a jury trial was not mentioned until September 8,1975, and then only by untimely attempted amendment to the motion for new trial 47 days after the trial court’s finding of guilt.

Such are the record facts. The substance of defendant’s point here is that the record shows no voluntary, intelligent waiver of a jury trial, as required by Rule 26.01, Y.A. M.R. In support of tin® contention defendant cites State v. McClinton, 418 S.W.2d 55 (Mo. banc 1967). What that case holds is that the failure of the record to show waiver of a jury in a misdemeanor case creates no presumption of irregularity, despite the provisions of Rule 26.01(b). All we have here is a record devoid of any request for a jury or objection to proceeding to trial without a jury. In fact, since McClinton, Rule 26.01(b) has been amended so as to require only that defendant’s waiver of a jury trial be entered of record in felony cases. Defendant’s point is without merit.

Defendant makes two further points. Neither requires extended discussion. What he has to say about the trial court’s denial of a motion for continuance made orally on the day of trial is governed by what was held in State v. Crider, 451 S.W.2d 825, 828 (Mo.1970). The accused’s right to private counsel is limited by the State’s right to proceed to trial after the accused has been afforded a fair opportunity to engage his own counsel and adequate time to prepare his defense, and does not include the right to defeat or impede the orderly processes of the administration of justice. Defendant’s complaint that he was given no Miranda warning preceding his breathalyzer test is governed by our Supreme Court’s holding in Spradling v. Deimeke, 528 S.W.2d 759, 764[7] (Mo.1975).

We find no error; the judgment and sentence are affirmed.

All concur.


author: JAMES A. MOORE, Special Judge.

text:
    STATE of Missouri ex rel. BUCHANAN COUNTY, Missouri, Respondent, v. Fred E. ROACH, Appellant.
    No. KCD 27532.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.

      Maurice Pope, Pope & Nichols, St. Joseph, for appellant.
    Richard A. Heider, Pros. Atty., Cynthia A. Clark, Asst. Pros Atty., St. Joseph, for respondent.
    Before SWOPFORD, P. J., and MOORE, BONDURANT and CLYMER, Special Judges.
   JAMES A. MOORE, Special Judge.

Relator brought this action for accounting against a former circuit clerk. Defendant Roach denied the allegation that he acted in a fiduciary capacity, alleged that he had rendered all accountings required of him by law and that all transactions of his tenure in office were of record open for inspection and unconcealed, and invoked the bar of the statute of limitations, particularly Sees. 516.130 and 516.360 RSMo 1969.

After an evidentiary hearing, the court ordered “the defendant to prepare and file with this Court on or before April 1, 1974, an accounting of all monies received by him as Circuit Clerk for any and all purposes that were not reported to the County Auditor and for which no records are available in the office of the Circuit Clerk, including interest received on investments of Circuit Clerk funds.” In response thereto defendant filed an “answer”. This response stated that defendant had accounted for all monies received by him for any and all purposes, that all such monies were reflected in the records of the County Auditor “and/or the office of the Circuit Clerk”, that defendant received no monies not reported and for which no records were available, that defendant had made the reports required by statute, that defendant had no records of his own, that monies received were entered on the records of the Circuit Clerk and that no records were hidden, lost, altered, mutilated or destroyed.

Relator countered with a motion for final judgment. Defendant-appellant and his then co-defendant surety each requested findings of fact and conclusions of law. Defendant Roach specifically requested findings as to the sum total of funds coming into the office of the Circuit Clerk for the years 1963, 1964, 1965, and 1966 for which he had failed to account.

On the same day that the requests were filed statements of counsel were heard and the requests for findings of fact and conclusions of law were denied. The Court then found “the answer filed by Defendant Roach to Order of Court Directing Accounting is not in compliance with the Court’s order, and the Court enters judgment against Defendant Roach and in favor of plaintiff on Count I of plaintiff’s petition in the sum of $18,624.97.” The entry continued to order, adjudge and decree the recovery of the sum of $18,724.97 from defendant-appellant and to memorialize the voluntary dismissal of two other counts of the petition. (One of these counts was bottomed on a different theory, and the other sought recovery from the surety of the principal sum together with interest, penalty and attorney’s fee.) After unavailing motion for new trial, which again invoked the statute of limitations, defendant Roach appealed. We reverse.

The factual background is not essential to an understanding of all of appellant’s threefold attack on the action of the trial Court. However, it is vital as to one of the assignments of error and helpful to an understanding of the other two.

Appellant took office as circuit clerk January 1, 1927 and inherited the records and system of his predecessor. “Open” items commenced in 1915. After 40 years in office appellant was succeeded by one Kelly. In the transition the outgoing official turned over the sums of $60,000.00 on January 1, 1967, and of $1,842.27 on January 9, 1967 or a total of $61,842.27. He also furnished a list of all open accounts commencing in 1915 and ending with his term of office December 31, 1966. The aggregate of $74,699.46 was corrected to $74,196.92. He also left a list of checks for child support which had not been picked up.

Although no total is given for the second list, the two lists totaled $80,423.48. After a 500 hour audit a Certified Public Accountant found a difference of $18,624.97. (He apparently added to the mathematical difference between the adjusted total of the two lists and the total of the sums transferred a bank adjustment in the amount of $43.96).

Litigation followed, the details of which are unclear. In his brief, appellant refers to the “original case filed an April 26,1968” against Roach and his bonding company. Respondent refers to three suits “filed by this plaintiff against this defendant” and the dismissal of the first and second without prejudice, prior to the institution of the instant case. There is no evidence in the Transcript on Appeal to substantiate the filing, pendency and disposition of the two earlier eases. However, respondent has twice filed with this Court envelopes containing purported Respondent’s Exhibit “A” and Exhibit “B”. These exhibits, copies of the petitions in the first and second cases, appear without authentication by a clerk, identification of a reporter, or blessing of a stipulation.

Other facts will emerge as they are pertinent to the several points assigned as error. We treat those points seriatim.

Appellant’s first point is the refusal of the trial Court to comply with the requests of appellant to make findings of fact and conclusions of law as requested. The parties are in substantial agreement as to the mandatory ' character of Rule 73.01 (b) [now Rule 73.01, subd. 1(b)] upon timely request for such findings and conclusions. Respondent, however, maintains that there was no timely request and that the trial court “did submit its findings and observations upon the evidence at the time of the entry of the interlocutory order for an accounting”. In so contending, respondent wholly overlooks the bifurcated nature of a suit for an accounting. Without attempting subtle distinctions between actions at law and suits in equity, we note the two stage character of a suit for accounting — the determination of the right to an accounting and the taking of the account. The latter stage had not been reached in the instant case when the request was made. The “findings and observations” at the interlocutory stage were both premature and incomplete for the findings and conclusions requested prior to final adjudication. Respondent’s contentions are without merit. The request was timely and the earlier findings and observations were not an acceptable substitute. We would reverse and remand for further proceedings were it not for the finality required by the disposition of a subsequent point.

Appellant’s second point is the failure of the Court to apply any statute of limitations. Appellant further contends that the three-year statute applies as of April 26, 1968, the date of the filing of the first of the three suits previously mentioned. If this contention is upheld, it means that the maximum period of time which could be involved is the portion of 1965 after April 26 and all of 1966. We agree.

Sec. 516.130 RSMo 1969 limits actions against public officers to three years. This limitation is extended by Sec. 516.360 RSMo 1969 to actions brought in the name of the state.

The suit was filed June 30, 1972 and would be barred by the statutes of limitation just cited except for the saving provisions of Sec. 516.230 RSMo 1969. If, after an action is timely commenced, plaintiff suffers a non-suit, plaintiff may commence a new action within one year after such non-suit.

Respondent tells us in his brief that the second suit was filed December 31,1969 and dismissed by plaintiff without prejudice September 16, 1971. We accept this statement for present purposes albeit the record on appeal is less than satisfactory as to prior suits. Assuming arguendo that the dates just recited are correct and the cause of action was the same in the second case and in the instant case, we rule that the present suit was not completely barred. For this purpose the voluntary dismissal without prejudice was a species of non-suit mentioned in Sec. 516.230 RSMo 1969. State v. Litzinger, 417 S.W.2d 126, 129 [4] (Mo.App.1967).

The evidence and the authorities do not support an extension based on a fiduciary relationship which would call into effect statutory provisions extending the period of limitations, e. g. Sec. 516.120(5). Shelby County v. Bragg, 135 Mo. 291, 36 S.W. 600 (1896); City of St. Joseph v. Wyatt, 274 Mo. 566, 203 S.W. 819 (banc 1918); State ex rel. School District of St. Joseph v. Wells, 270 S.W.2d 857, 862[2] (Mo.1954).

There was a paper difference between the total of the open accounts and the funds available, but nowhere was the loss, if any, pinpointed. Kelly, who not only was appellant’s successor but also had been his deputy, could not say during what term or during what period any loss had occurred. Even more importantly, Larson, the C.P.A., found all the records and that nothing was hidden. He couldn’t say that any time on any particular day there was a shortage. He checked in detail by inquiry the items of account for 1957, 1965, and 1966. The records for those years were substantially correct. In his opinion there was no way to ascertain, if in fact a shortage existed, when it occurred. He could not state whether any shortage was in appellant’s first year in office, his last four years, or where.

There was no evidence to support a recovery for any period not barred by limitation.

Finally appellant assigns error in the entry of final judgment without exceptions by the plaintiff (relator) and without any further evidentiary hearing. Whether the “answer” of appellant to the interlocutory order directing him to file an accounting was in strict compliance with the court’s order is not the question. Plaintiff (relator) elected to move for final judgment without further proof and in effect stood on the evidence adduced at the hearing of the first phase. The evidence so adduced supports no claim not barred by limitation.

The judgment and decree is reversed.

All concur.


author: ANDREW J. HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Robert Kenneth BRYANT, Appellant.
    No. KCD 27775.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.

      Robert D. Kingsland, Asst. Public Defender, Jefferson City, for appellant.
    John C. Danforth, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., WELBORN and HIGGINS, Special Judges.
   ANDREW J. HIGGINS, Special Judge.

Appeal from convictions by a jury of robbery, first degree, and assault with intent to kill with malice aforethought. The question is whether, as plain error, Rule 27.20(c), V.A.M.R., the defendant was denied a fair and impartial trial by the State’s argument to the jury. Affirmed.

Appellant does not question the sufficiency of evidence to sustain his conviction. The record shows that on April 29, 1974, defendant and two companions, armed with pistols and shotguns, robbed the First Bank of Commerce, Columbia, Missouri, of some $22,000 by putting four women employees in fear of immediate injury to their persons, Sections 560.120 and 560.135, RSMo 1969; and, in their attempt to escape and avoid arrest, discharged a shotgun at Harold Calvin, a police officer, and wounded a bystander, Section 559.180, RSMo 1969.

Appellant quotes the following excerpts from the State’s closing argument. The emphases are appellant’s; additional context is contained in parentheses.

“You know, there is one reason why we are here today and yesterday . it is called ‘greed,’ human greed, without regard to consequences that that greed causes. Taking a shotgun, loaded, into a bank where people were, innocent people in our society; people working in there eight to five and putting their lives right on the line for this.”
“(You have two eye witnesses who were there. They told you what happened.) Guns pointed — if you don’t open that safe . . . kill her. Just for this. Human life put in danger.”
“(It was fine police work under dangerous circumstances.) It is a wonder Harold Calvin was here. Marty Treaster shot at. He was very lucky the bullet didn’t hit him.”
“I bet if Officer Highbarger hadn’t seen him and been right there, I venture to say that shotgun may have been used on Officer Carlyle. But Officer Highbar-ger was there at the same time.”
“If there was any doubt the people were afraid to shoot . . . think about it. They were shooting all over the place, and there were bullets and shells. I don’t think that was meant to scare anybody. I think it was meant to kill Harold Calvin, for example.”
“(* * * you can find this man guilty of first degree robbery with a dangerous and deadly weapon. You can find him not guilty.) If you find him not guilty I will give him the shotgun and send him back on the street. That is what ‘not guilty’ means — right out the door today, a free man on Count I.”
“(The law in this state is, if five people go in and commit a crime * * * and one person does something in furtherance of that crime all are guilty. All are responsible. I don’t care if he pulled that trigger at Harold Calvin or not. To find him guilty all you have to find is that he was in the bank; that he was in that car, they were trying to escape.) Whoever did that did it with one purpose . to get away, that is a common purpose. Blow that policeman away.”
“To set a man free on Count II would say to a policeman: ‘Tough, too bad, Harold. You are being shot at but too bad.’ Say to a lot of policemen who go out there and get shot at when these crimes occur, and they are occurring more every day. Tough. You have a chance to say something about it. I don’t care whether it’s Boone County or Cole County who gets the justice.”
“When I prove the case the burden shifts from my shoulders to yours. You are a part of the law enforcement system.”

Defendant made an answering argument calculated to raise doubts with respect to the victims’ identifications of their assailants and, in furtherance of his trial strategy, to put the police and their work on trial.

Conceding absence of any objection to the State’s argument, appellant contends the “doctrine of plain error” should be invoked to cause this case to be remanded for new trial on the ground the State’s argument to the jury “which was calculated to influence and arouse the personal passions, hostilities, prejudices and fears of the jury,” denied defendant the fair and impartial trial to which he was entitled under the United States Constitution, Amendment XIV, and the Missouri Constitution, Article 1, Section 9.

Appellant argues that the comment “give him the shotgun and send him back on the street,” “personalizes the jury” in that they might feel personally threatened. He asserts there was no evidence that he meant to kill Officer Calvin, “in that not only was he not hit, but neither was his vehicle”; and no evidence to support the comments that “They were shooting all over the place, and there were bullets and shells, * * * I don’t think that was meant to scare anybody.”

In an attempt to cover the absence of objections, appellant asserts also that the quoted portions of argument had a “cumulative” inflammatory effect.

Under Rule 27.20(c), supra, plain errors affecting substantial rights may be considered on appeal, although not raised in the trial court or preserved for review, but only where there is a “sound, substantial manifestation * * *, a strong, clear showing, that injustice or miscarriage of justice will result” if relief is not given. State v. Meiers, 412 S.W.2d 478, 480-481[1] (Mo.1967). The court may consider questions going to closing argument under "assertions of plain error, State v. McClure, 504 S.W.2d 664, 670[11] (Mo.App.1974), but relief will be rarely granted, State v. Brown, 528 S.W.2d 503, 505[2] (Mo.App.1975). Where no objection has been made to the argument, review is usually denied without explication. See, e. g., State v. May, 479 S.W.2d 451, 456 (Mo.1972); State v. Agee, 474 S.W.2d 817, 820[10] (Mo.1971).

The remark about returning the defendant to the streets with his shotgun in the event of an acquittal was an accurate and proper inference. A similar statement has been found inoffensive and void of personal opinion of guilt. State v. Henderson, 510 S.W.2d 813, 823[22] (Mo.App.1974).

Defendant’s intent to kill Officer Calvin, as opposed to a desire to “scare” someone, reasonably could be inferred from evidence that the fleeing robbers fired a shotgun when Officer Calvin was about a car length away; and counsel’s argument to that effect was therefore within the record and thus legitimate. State v. Bolden, 525 S.W.2d 625, 634[14, 15] (Mo.App.1975).

The remark about shooting and bullets and shells is similarly a reasonable inference from the evidence showing weapons, shells, bullets, and at least three exchanges of gunfire.

The remainder of the excerpts from the argument were also legitimate in that they constituted a plea to the jury to aid in enforcing the law. See, e. g., State v. Pruitt, 479 S.W.2d 785 (Mo. banc 1972); State v. Lang, 515 S.W.2d 507 (Mo.1974); State v. Rodriguez, 484 S.W.2d 203 (Mo.1972). Cf. State v. Heinrich, 492 S.W.2d 109 (Mo.App.1973), where ten excerpts from the State’s argument were each objectionable, therefore cumulative, and properly found to foreclose a fair and impartial trial to defendant.

Judgment affirmed.

All concur.

      . One companion, Adrian B. Gibson, was also tried in Cole County and was convicted by a jury of robbery, first degree, assault with intent to kill with malice aforethought, and kidnaping. His conviction was affirmed, State v. Gibson, Mo.App., 547 S.W.2d 861 (1977).

      . Counsel on appeal was not trial counsel.


author: TURNAGE, Judge.

text:
    In the Matter of the ESTATE of Roy KUNZLER, Deceased. Claim of Albert KUNZLER.
    No. KCD 27820.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.

      Kay & Quigley, Eldon, for appellant. Carson, Monaco, Coil & Riley, Michael P. Riley, William C. Lane, Jefferson City, for Anna Kunzler.
    Woolsey & Yarger, David A. Yarger, Versailles, for the Estate.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   TURNAGE, Judge.

Albert Kunzler filed a claim in the estate of his father, Roy Kunzler, deceased, in the probate court. The probate court allowed the claim in full, but on appeal to the circuit court, the motion of the estate for a directed verdict at the close of the claimant’s evidence was sustained. Albert Kunz-ler appeals.

Albert contends (1) the court erred in sustaining the motion to dismiss because his evidence made submissible case; (2) the court erred in striking the evidence of two of Albert’s value witnesses; °and (3) the court erred in refusing to allow Albert to testify concerning his agreement with his father after the estate cross examined Albert so as to waive the Dead Man’s statute. § 491.010, RSMo 1969. Reversed and remanded.

The claim filed by Albert in the probate court stated:

“There is due him from the estate of Roy Kunzler deceased, the sum of $10,000 on account of services performed for decedent in consideration for decedent’s promise to compensate claimant in decedent’s will or give claimant a share of the estate.”

The evidence in circuit court revealed Albert was married in 1942. He and his bride planned to seek employment and establish their own home, but yielded to the entreaties of Roy to stay on Roy’s farm and help him because of his bad health. Roy promised Albert that if Albert would stay, Roy would see that he was well paid at the end. Albert and his wife lived in the Kunzler home with Roy and Albert’s mother. Albert and his wife lived there for five years during which time Albert devoted his entire time and efforts to the operation and management of Roy’s farm. During all of this time the evidence was that Albert was not paid anything for work performed on Roy’s farm, but when Albert used Roy’s equipment to do custom work for others, he was paid $1.00 per day. Payments for this custom work to Albert averaged from $100 to $150 per year from 1942 to 1965. In about 1947, Albert and his wife purchased a nearby eighty-acre farm from Roy and moved to a house located on that farm. Albert paid Roy the full purchase price for this acreage.

After Albert moved he continued to devote from one-half to two-thirds of his time to the operation of Roy’s farm without any compensation for a period of about ten years. After that period of time, and until about three years prior to Roy’s death in 1968, Albert devoted about one-fourth to one-half of his time to Roy’s farm.

In about 1950, Roy made a deed conveying a forty-acre tract to Albert, but requested the deed not be recorded. Roy later asked for the return of the deed, and Albert returned it. There was evidence Roy told the attorney who prepared the deed it was made in payment to Albert for all of the work he had done. Roy likewise executed a bill of sale to his farm equipment to Albert and delivered it to him. He likewise requested the return of this bill of sale and it was returned. In 1964 or 1965, Roy had a falling out with Albert and another son, Vernon. As a result, Albert was left a total of $10.00 in Roy’s will.

Albert produced two witnesses who attempted to testify as to the reasonable value of the work Albert had performed for Roy. On objection the court excluded such testimony.

At the close of Albert’s evidence the court sustained a motion for a directed verdict which recited “that upon the facts and the law Albert Kunzler is not entitled to the relief prayed for.”

In determining the sufficiency of the evidence to make a submissible ease which will withstand a motion for a directed verdict, the plaintiff’s evidence must be considered as true, and the plaintiff must be given the benefits of every inference which can reasonably be drawn. Kopp v. Traders Gate City Nat. Bank, 357 Mo. 659, 210 S.W.2d 49, 50[1, 2] (banc 1948).

From the recital of the evidence produced by Albert, it is apparent a submis-sible case was made. In a family relationship case there is a presumption that services were rendered gratuitously. Albert’s evidence of an agreement and mutual understanding that he was to be paid was sufficient to overcome the presumption. Kopp v. Traders, supra. However, the estate does not base its claim to a directed verdict upon the fact Albert failed to produce evidence to overcome the presumption of gratuitous service and in fact concedes the existence of evidence which met the burden.

The estate contends Albert’s claim was cast in language showing a reliance upon an express agreement and Albert is precluded at this stage from electing to proceed under the theory of quantum meruit as he attempted to do at trial. Further, the estate contends when a family relationship exists, express contract is the sole basis for recovery.

The estate founds its initial contention upon Whitworth v. Monahan’s Estate, 111 S.W.2d 931 (Mo.App.1938). Whitworth held the claim filed in that case was founded upon an express agreement and for that reason the claimant was not allowed to proceed on a theory of quantum meruit when the appeal reached the circuit court. However, Whitworth recognized a claimant had a right to sue for the reasonable value of his services in quantum meruit. The question in this case becomes one of whether or not the claim filed by Albert relied upon an express contract in such certain terms that Albert is precluded on his appeal in the circuit court from electing to proceed under the theory of quantum meruit.

In considering a claim closely akin to the claim filed in Whitworth, the court in In Re Hukreda’s Estate, 172 S.W.2d 824 (Mo.1943) held the claimant had not made a binding election under an express contract under the rule in Whitworth. The court there stated:

“If ‘it is impossible to say with definiteness whether the plaintiff is counting upon an express contract or upon quantum meruit, he will be permitted to recover upon whichever of the two theories his evidence may warrant.’ ” In Re Hukreda’s Estate, 172 S.W.2d 826 [4, 5].

In both Whitworth and Hukreda the claim was based upon an allegation the decedent had promised to leave the claimant a specified percentage of the estate. It will be noted the claim filed by Albert did not specify a definite share of the estate or sum to be paid, but simply stated Roy had promised to compensate him in his will or to give him a share of his estate. A reasonable interpretation of Albert’s claim shows the allegation of a rendition of services, a promise to pay, and a breach of that promise. As stated in In Re Hukreda’s Estate:

“The claim, therefore, contains an allegation of promise, consideration, indebtedness, performance by the claimant, a demand, breach and a claim for damages or allegations from which it could only be inferred that the services were not gratuitously rendered or had been paid for and those are the essential averments or prerequisites to stating a cause of action in assumpsit.” 172 S.W.2d 826.

It cannot be said with definiteness that Albert’s claim was based upon an express contract and in that circumstance he should be permitted to proceed in assumpsit or quantum meruit as allowed in Hukreda.

The estate’s second contention alleges recovery is barred under the theory of quantum meruit when a family relationship exists. The estate relies upon language found in Farris v. Faris’ Estate, 212 S.W.2d 71 (Mo.App.1948). In that case the court stated:

“Mere proof of the rendition of the services is not sufficient. And, when such relationship exists, recovery can only be had under an express contract, as the law will imply none.” 212 S.W.2d 75 [6-7]

The relationship mentioned referred to a claim involving family members. However, the court should not be understood to say that in a family relationship a claim must be based upon an express agreement to the exclusion of the right to recover under quantum meruit. The court was rather speaking of the fact the law will not imply a promise to pay when a family relationship exists as it will in other cases.

The right to recover under quantum me-ruit in a family relationship case is recognized in Kopp v. Traders Gate City Nat. Bank, supra, at 210 S.W.2d 62[6—7]. The Farris case cannot be said to hold to the contrary. For the reasons stated, Albert made a submissible case and the court erred in sustaining the motion for a directed verdict.

Because this case will be remanded for a new trial there are other matters which will arise and which must be discussed. The first of these relates to the exclusion by the court of the evidence adduced by Albert through two witnesses as to the reasonable value of the work Albert performed for his father. This was excluded on the basis Albert was proceeding upon an express contract and was, therefore, barred from proceeding under quantum me-ruit. That theory has been rejected. However, it should be noted that opinion evidence as to value of the work performed is not necessary because the jury is held to know the value of work of a common nature in the community. Ashley v. Williams, 365 Mo. 286, 281 S.W.2d 875 (1955). However, Albert may still present evidence of the reasonable value if he so desires. Nesbit v. Shisler, 175 Mo.App. 565, 158 S.W. 419, 420 (1913).

Another matter which will reoccur concerns the exclusion by the court of the proffered testimony of Albert concerning his agreement with his father. This testimony was offered after Albert had been cross examined by the estate. Albert’s theory of admissibility was that the Dead Man’s statute had been waived when the estate cross examined him on matters covered in his claim. An examination of the cross examination of Albert shows counsel did examine Albert concerning the amount his father had paid him for the work Albert claimed to have done and also inquired as to what work Albert had performed for his father. These matters were not touched upon in direct examination. In this circumstance the protection of the Dead Man’s statute was waived by the cross examination. Albert is now free to testify fully as to all of the transactions between him and his father involved in this claim without the intervention of the Dead Man’s statute. Hegger v. Kausler, 303 S.W.2d 81, 88[1, 2] (Mo.1957).

The estate further contends the evidence showed Albert had been fully paid by the delivery of the deed to the farm and the bill of sale to the farm machinery. Ordinarily payment is an affirmative defense which is required to be pleaded. Rule 55.08. Since this case originated in the probate court, the formality of pleadings required in circuit court did not apply. However, as stated by Shangler, J., in Cooper v. Jensen, 448 S.W.2d 308, 311[1-3] (Mo.App.1969): “The executor may, nonetheless, ‘interpose any defenses whatsoever that may exist against any demand’ and undertake to prove them.” Hence, any evidence which may be produced by the estate to show payment would be admissible and should be submitted to the jury under proper instructions. This rule would apply unless the court should order that Rule 55 be applied to this case under the provisions of Rule 41.01(b).

The judgment is reversed and remanded.

All concur.