author: TITUS, Judge.

text:
    STATE of Missouri ex rel. ROLLA SCHOOL DISTRICT NO. 31, Relator, v. The Honorable Eugene E. NORTHERN, Judge of the Circuit Court of Phelps County, Missouri, Respondent.
    No. 10545.
    Missouri Court of Appeals, Springfield District.
    April 4, 1977.
    W. H. Thomas, Jr., Routh, Thomas & Birdsong, Rolla, for relator.
    Armand P. Brodeur, Salem, for respondent.
   TITUS, Judge.

Dane Ruff, et alii, describing themselves as “residents, tax payers [sic] and legal voters of the Rolla School District No. 31,” filed in the Circuit Court of Phelps County a notice to contest the special school board bond election held in the district on October 5, 1976. The school district’s motion to dismiss the contest action because, inter alia, the circuit court lacked jurisdiction to entertain, hear, pass upon and decide the election contest was overruled. As relator, the school district brought this original proceeding in prohibition seeking to restrain the respondent judge from exercising jurisdiction in the cause. We issued our preliminary writ of prohibition.

Prohibition is the proper remedy to keep a lower court within the limits of its power and to prevent it from exercising jurisdiction over a cause not given by law to its consideration. Weaver v. Schaaf, 520 S.W.2d 58, 67[5] (Mo. banc 1975).

Although art. VI, § 26(g), Mo. Const., states that “All elections under this article may be contested as provided by law ” (our emphasis), the General Assembly has not enacted a law providing for the contesting of school bond elections and art. VI, § 26(g) is not self-executing. Eberle v. Plato Consolidated School District No. C—5 of Texas County, 313 S.W.2d 1, 2[1] (Mo.1958). Consequently, the courts of this state have no jurisdiction to entertain actions to contest the results of school bond elections because there is no common law right to do so and no statutory authority therefor exists. State ex inf. Anderson ex rel. Conaway v. Consolidated Sch. Dist. No. 4 of Iron County, 417 S.W.2d 657, 661[8] (Mo. banc 1967); Nichols v. Reorganized Sch. Dist. No. 1 of Laclede County, 364 S.W.2d 9, 13[4] (Mo. banc 1963); Erdman v. Auer, 444 S.W.2d 427, 432-433[4] (Mo.1969); Wann v. Reorganized School Dist. No. 6 of St. Francois County, 293 S.W.2d 408, 411-412[2, 3] (Mo.1956); Comment, Contesting School Bond Elections in Missouri, 21 Mo.L. Rev. 274, at pp. 278-279. See also Pettengill v. Putnam Cty. R—1 School Dist., Unionsville, Mo., 472 F.2d 121, 122 (8th Cir. 1973).

Respondent’s reliance upon State ex inf. Ryan v. Bond, 546 S.W.2d 1 (Mo. banc 1977), is misplaced. This concerned an information in the nature of quo warranto, the proper common law procedure, to determine respondents’ right to the office of members of the Board of Education of the City of St. Louis. Among others, the question was raised whether an election contest (provided by law per § 124.250, V.A.M.S.) rather than quo warranto was the appropriate and exclusive remedy which relators should have pursued. The court observed that quo war-ranto was appropriate for the purpose of ascertaining if respondents had unlawfully assumed and usurped positions on the school board and, if so, to oust them. It also noted that (Id. 4) “ ‘if an individual seeks to effect [an] ouster for his own private ends, namely, to succeed the incumbent in the office, he should, where the law has made provision therefor, institute a contest proceeding.’ ” (Our emphasis). Thus, the court recognized the necessity for statutory authority before an election contest may be maintained.

It is trite to say a writ of prohibition is discretionary and is not a writ of right. State ex rel. Thomasville Wood Products, Inc. v. Buford, 512 S.W.2d 220, 221[2] (Mo.App.1974). Nevertheless, when an inferior court is wholly wanting in jurisdiction, as opposed to where an inferior court is erroneously acting in a class of cases in which it admittedly has general jurisdiction, the court with superintending power will exercise its discretion and grant the writ since any action taken in the case would be without authority and cause unwarranted expense and delay to the parties. State ex rel. T.J.H. v. Bills, 504 S.W.2d 76, 79[3] (Mo. banc 1974).

The preliminary rule in prohibition heretofore issued is now made absolute and final judgment in prohibition is entered against respondent judge.

All concur.


source: Caselaw Access Project

author: ROBERT R. WELBORN, Special Judge.

license: Public Domain

text:
    Joseph PIGG, Appellant, v. E. J. ROBERTSON, Respondent.
    No. KCD 27907.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.

      William B. Morgan, Campbell, Erickson, Cottingham, Morgan & Gibson, Kansas City, for appellant.
    Clyde G. Meise, P. Thomas Loughlin, Meise, Cope & Jarrard, Kansas City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action for damages for breach of confidential .and fiduciary relationship and alternatively for declaration of a constructive trust. At the close of plaintiff’s evidence in a trial to a jury, the court sustained defendant’s motion for a directed verdict and judgment was entered against plaintiff. Plaintiff appeals.

Joseph Pigg and his wife lived in a rural area, near Oak Grove, Missouri. Pigg, formerly a farmer, was in the water hauling business. He had occasionally dealt in real estate. In early September, 1971, Frank Robinson, an Oak Grove real estate agent, told Pigg that a 100-acre farm, known as the “Church farm” and about a mile south of Pigg’s place, was for sale for $25,000. Pigg was familiar with the farm and was interested in buying it. Because most of his assets were owned jointly with his wife, Pigg required her cooperation which she was reluctant to give.

On Sunday, September 12,1971, Robinson again came to Pigg’s farm house and asked Pigg whether he was ready to buy the farm. Robinson told Pigg he would be showing the farm to another prospective purchaser the next day. Pigg told Robinson he was interested, but his wife opposed the deal. That evening, however, his wife agreed to go along with her husband’s idea.

Early in the morning of September 15, 1971, Pigg went to the Commercial Bank of Oak Grove to speak with its president, Mr. Hollis Dyer, about arranging a loan to buy the farm. Pigg had been a customer of the bank for about ten years and had made twelve to fifteen loans there over the years, dealing, with one exception, with Dyer. The one exception was when he dealt with Jim Brown at the bank on a loan for a water truck.

Pigg went into the bank and asked a teller if he could see Mr. Dyer. The teller told Pigg that Dyer was out of town and said “You can talk to Mr. Robertson.” She directed Pigg to the office usually occupied by Dyer.

Robertson, a stranger to Pigg, was seated at the desk usually occupied by Dyer. Pigg introduced himself and proceeded to tell Robertson of his interest in purchasing the Church farm and in needing a loan for that purpose. Pigg described the farm and explained to Robertson the notes which he held and which he desired to use as collateral. Robertson told Pigg: “Well, I just can’t use that type of collateral for a loan. You would have to talk to Mr. Dyer when he comes back.” The conversation between Pigg and Robertson lasted three to five minutes. Pigg learned from Jim Brown that Dyer would be back on Friday.

Robertson did not tell Pigg that he was not an employee of the bank. He in fact was not. He was vice-president of the Corporation Service and Investment Company. That company had contracted with the Commercial Bank for an operational audit and Robertson was in the bank in that regard. Robertson had a degree in banking, and had worked in a bank in Kansas.

On Thursday, September 9, Dyer had told Robertson that the Church farm was for sale. (According to Robertson, the farm was described to him as the “Cox farm.” The place had been previously owned by Church, but Robertson did not know the place by that name.) The next day Robertson went over the farm with Dyer and then he made an appointment with Robinson, the real estate agent, to go out to the farm with him on Monday. The two men went to the farm on Monday, but no contract of sale was entered into. On Thursday, Robertson obtained a commitment from the bank in Buckner for a loan to cover half the $25,000 purchase price of the farm.

Robertson, called by Pigg as an adverse witness at the trial, stated, on “cross-examination” by his own attorney, that from Pigg’s conversation with him he was not aware that Pigg was interested in purchasing the farm in which Robertson was also interested. Robertson testified that he thought Pigg wanted to sell the bank a contract for a deed and that Pigg did not tell him he wanted to obtain a loan to purchase a farm.

Some hour and a half after his conversation of the 15th with Pigg, Robertson called Robinson and asked him to prepare a written contract for the sale of the farm. A contract for sale was entered into by Robertson on the 15th.

Pigg saw Dyer on the 17th and told him he wanted to talk about a loan to purchase the Church farm. Dyer told Pigg the farm had already been purchased by Robertson. Robertson sold the farm some seven months later for $45,000.00.

Plaintiff’s petition alleged, in the circumstances of Robertson’s presence in the bank and by Robertson’s undertaking to listen to Pigg’s communication, Robertson placed himself in a position of trust and confidence with regard to Pigg and the disclosure made to him by Pigg, imposing upon Robertson a duty to disclose to Pigg all material information relating to the subject matter of the conversation known to Robertson and a further duty not to divulge or personally profit from the information received from Pigg. The petition alleged that defendant violated such duty by not advising Pigg of his interest in the farm and by purchasing the farm himself after he had heard of Pigg’s interest.

After evidence of basically the foregoing facts, offered by plaintiff, the trial court sustained defendant’s motion for a directed verdict, stating:

“ * * * [Although the evidence may be sufficient to establish a reasonable belief in the mind of the plaintiff that he was dealing with someone who had some authority and therefore that there might have been a confidential relationship, there is no evidence, or insufficient evidence, of any breach of any such duty of any such relationship, if such were established.”

In this court, appellant naturally agrees with the trial court’s conclusion that a confidential relation existed between the parties, but disagrees with the conclusion that there was no evidence of a breach of duty arising out of that relationship. Respondent supports the trial court’s finding in that regard and also contends that the evidence did not support the finding of a confidential relationship.

Many cases may be found in which a general definition of the term “confidential relation” (or “relationship”) may be found. In this case the parties have cited five such cases, none of which remotely approaches the factual situation here involved. Each party, interestingly, for his first case on the issue of existence of a confidential relation, has cited McKeehan v. Wittels, 508 S.W.2d 277 (Mo.App.1974). That case involved a principal-agent relationship which has long been recognized as a fiduciary relationship. Groh v. Shelton, 428 S.W.2d 911, 916[9] (Mo.App.1968). One consequence of that relationship is that the agent may not occupy a position antagonistic to his principal. McKeehan v. Wittels, supra, 508 S.W.2d at 281. However, in this case, appellant did not enter into an agency relationship with respondent, so that, although McKeehan v. Wittels may contain language from which both parties obtain solace, the actual holding of that case has little application here.

Appellant has also cited Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 706 (1931). That case involved the existence of a fiduciary relation for purpose of application of the law pertaining to undue influence upon the execution of a will, again a situation far removed from that here involved.

Appellant’s third case, Selle v. Wrigley, 233 Mo.App. 43, 116 S.W.2d 217 (1938), was concerned primarily with tolling of the statute of limitations in a fraud action, arising out of a situation quite dissimilar from this case.

Respondent also cites a will contest case, Wilhoit v. Fite, 341 S.W.2d 806 (Mo.1960), in which the court enumerated the facts which it found gave rise to a confidential relation between the testator and a beneficiary. The factors enumerated in that case bear little relation to this case.

In his examination of respondent, appellant’s counsel inquired whether respondent was familiar with the “rules generally * * * about the confidential relationships between bank employees and the customers.” Respondent replied that he was. However, no attempt was made to enlarge on the inquiry and in this court the briefs of both parties are entirely silent on the nature of the obligations which the law imposes by reason of dealings between a bank and its customers. Generally the relation of a general depositor to his bank is that of creditor-debtor, not a fiduciary relation. 10 Am.Jur.2d § 339, p. 302 (1963). The relation may give rise to some particular obligation, such as an obligation upon the bank not to disclose matters pertaining to the customer’s account without his consent. See Milohnich v. First National Bank of Miami Springs (Fla.App.), 224 So.2d 759 (1969); Peterson v. Idaho First National Bank, 83 Idaho 578, 367 P.2d 284 (1961).

“ * * * [W]hen a bank transacts business with a depositor or other customer, it has no special duty to counsel the customer and inform him of every material fact relating to the transaction — including the bank’s motive, if material, for participating in the transaction — unless special circumstances exist, such as where the bank knows or has reason to know that the customer is placing his trust and confidence in the bank and is relying on the bank so to counsel and inform him.” Klein v. First Edina National Bank, 293 Minn. 418, 196 N.W.2d 619, 623[7] (1972).

In this case, appellant emphasizes that he placed his trust in respondent when he approached respondent to discuss the possibility of a loan. There would seem to be little doubt that, had the recipient of appellant’s information and inquiry been, in fact, an officer or employee of the bank with no prior knowledge of the offer of the land for sale, appellant would have been entitled to relief had such person made use of the information imparted to deprive appellant of the opportunity to make the purchase. “ * * * [I]f a person applies for a loan, and in connection with that application discloses his purpose to avail of a bargain which he had not as yet closed by contract, and of which the lender had not previously heard, the courts, whether of law or equity, would afford some form of adequate relief in case the applicant was forestalled in his project by the lender.” M. L. Stewart & Co. v. Marcus, 124 Misc. 86, 207 N.Y.S. 685, 692[7] (1924).

That case involved a somewhat similar situation to that here found, except that in that case the banker had been retained as an agent by another person interested in purchasing the property involved before the bank customer approached the bank official for a loan to purchase the property. Of interest is the further statement of the court:

“[6] The fact that plaintiff was a depositor in Marcus’ bank is merely incidental, and significant in the present case only of the consideration that the borrower did not come uninvited to the lender. Of course, no man can obtrude either his trust or his secrets upon another, to the extent of imposing upon that other any obligation in regard thereto, any more than he- can render another his bailee in invitum. In that respect banks present a constant invitation to intending borrowers, and thus subject themselves to whatever implication or obligation is to be drawn from that fact. In my opinion, however, the case would not be any different if the proposal were made to a private money lender, or even to an intimate friend, provided, always, that the application came to the lender at his invitation, express or implied, or with his equivalent consent.”

Except for his occupation of the president’s office, there is no evidence that respondent invited appellant’s disclosure to him. There was no evidence that respondent had been authorized to sit in the president’s office and advise with customers who might otherwise have called upon the president or another bank official. According to respondent, he remembered only two occasions when an employee of the bank directed a customer to him, one was in appellant’s case and another involved a discussion of investment matters with a customer who was also a director of the bank. However, respondent acknowledged that, during Mr. Dyer’s absence, bank employees asked him questions posed to them by customers and relayed respondent’s replies to customers. Thus, respondent was aware that he was being called upon to provide advice for customers and a jury would have been entitled to find that a bank customer approaching respondent, under the circumstances in which appellant did so, had a right to expect that his disclosures would be given the same protection they would have received had they been made to a regular bank officer and that respondent could reasonably be expected to know that such reliance was placed in him. Therefore, it follows that appellant’s evidence was sufficient to permit a jury to find that a confidential relation did exist between appellant and respondent and the trial court correctly so found.

Given the existence of a confidential relation, there was evidence from which the jury could have found a breach by respondent of obligations resulting from such relation. In his brief, respondent states: “The most obvious fact essential to Appellant’s theory of recovery is that Mr. Robertson knew that the farm being described by Mr. Pigg was the same farm that Robertson eventually purchased. Being possessed of that knowledge, Mr. Robertson might well have had a duty to reveal his interest in the property to Pigg.” (Emphasis supplied)

Respondent’s argument that there was no evidence from which it could have been found that Robertson knew that Pigg and he were interested in the same farm must be rejected. According to Robertson, Pigg didn’t even tell him that he was interested in purchasing a farm. Pigg testified that he did tell Robertson that was the reason he wanted to make a loan and that he described the farm to Robertson. From Pigg’s testimony and the evidence of the hurried activity of Robertson to contract for the purchase of the farm following his conversation with Pigg, the jury could find that Robertson knew that Pigg was interested in the farm. In addition to the facts above stated, it was stipulated that Dyer, if called to testify, would state that he spoke by telephone to respondent on September 14 and respondent at that time told Dyer he was “planning to take no action regarding [buying the farm] until Dyer returned.”

There was, therefore, evidence not only from which a confidential relation could have been found, but also evidence to support a finding of a breach of the obligations flowing from such a relation and the trial court should not have directed a verdict for the respondent.

Appellant asks consideration of two additional matters involving rulings by the trial court on evidentiary matters, not pertinent to the determination of whether or not plaintiff made a submissible ease. Inasmuch as those questions may or may not recur on a new trial and if they do, may recur in a varied context, it is unnecessary and perhaps unwise to determine them on this appeal.

Judgment reversed and cause remanded for new trial.

All concur.


author: ANDREW J. HIGGINS, Special Judge.

text:
    Lloyd SEARCY, Appellant, v. John C. NEAL, Jr., Respondent.
    No. 27918.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Thaine Q. Blumer, Kenneth E. Arnold, Kansas City, for appellant.
    Miller and O’Laughlin, P. C., George T. O’Laughlin, Bernard M. Jung, Kansas City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW J. HIGGINS, Special Judge.

Appeal from verdict and judgment for defendant in action for personal injuries sustained by plaintiff when the motor vehicle he was operating ran off the highway. The question is whether the instruction which submitted plaintiff’s contributory negligence was supported in the evidence. Affirmed.

In October, 1965, plaintiff was employed by defendant as a farm hand; his duties included operation of defendant’s trucks. On October 31,1965, plaintiff was operating defendant’s 1964 model GMC truck equipped with dual rear wheels and tires, loaded within limits with 18,000 to 25,000 pounds of grain, southbound on U.S. Highway 69 near Liberty, when the truck ran off the highway, overturned, and injured plaintiff following a blowout of one of the right rear tires.

Plaintiff’s theory, as submitted by his verdict-directing instruction, was that defendant’s truck was equipped with a tire that had been cut and repaired making it unsafe for use; that it blew out; that defendant knew, or should have known, that the tire was unsafe; that he was thereby negligent, and that as a result, the truck overturned and plaintiff was injured.

Defendant’s theory was that plaintiff’s own negligence caused or contributed to cause the casualty and his injury. It was submitted by Instruction 4:

“Your verdict must be for the defendant, whether or not defendant was negligent, if you believe:
“First, plaintiff knew or in the exercise of the highest degree of care would have known that to make a sudden hard application of the brakes on the truck immediately after a tire blowout would be likely to cause plaintiff to lose control of the truck; and
“Second, plaintiff made a sudden hard application of the brakes immediately after hearing the blowout of a tire on the truck and thereby was caused to lose control of the truck; and
“Third, plaintiff’s conduct in the respect submitted in paragraph Second was negligent; and
“Fourth, such negligence of plaintiff directly caused or directly contributed to cause the truck driven by plaintiff to overturn.’’

Appellant charges the court erred in giving Instruction 4, asserting there was no evidence that plaintiff knew or would have known that a sudden hard application of the brakes would cause him to lose control or that his loss of control of the truck was caused by the application of the brakes. He argues that defendant’s burden of proving plaintiff’s contributory negligence, Thompson v. Southwestern Bell Telephone Co., 451 S.W.2d 147 (Mo.1970), was not met; and that each proposition was not supported by substantial evidence as required, Ryan v. Manheimer, 435 S.W.2d 366 (Mo.1968); Williams v. Cavender, 378 S.W.2d 537 (Mo.1964).

The evidence in support of the instruction on contributory negligence, considered favorably to defendant with a disregard for plaintiff’s evidence unless it tends to support the submission as required, Rickman v. Sauerwein, 470 S.W.2d 487 (Mo.1971), Worley v. Tucker Nevils, Inc., 503 S.W.2d 417 (Mo. banc 1973), Ogden v. Toth, 542 S.W.2d 17 (Mo.App.1976), demonstrates that the court properly submitted the question of plaintiff’s own negligence to the jury.

There was evidence to show that plaintiff, at age 34, was an experienced truck driver and had driven the same truck with similar loads to Kansas City twenty-five or thirty times previously in defendant’s employ in the harvest seasons of 1964 and 1965. He also had received training in military service with respect to what to do in case of a tire blowout, and had experienced several blowouts while operating automobiles. He had learned in his training that there was danger in slamming on the brakes after a blowout and that the safe practice was to slow the vehicle and bring it to a gradual stop. On the occasion in question, he heard a “pow” which he recognized as a blowout. He “felt the load shift but the truck kept going straight down the road” until after he put his foot on the brakes. When he applied the brakes, he jammed his foot on the brakes as hard as he could. Things “got away from” him and his truck proceeded to skid some 114 feet and went off the road. He did not lose control until after his hard application of the brakes.

There was also evidence from witnesses, John B. Scott on behalf of plaintiff, and William Francis Adee on behalf of defendant, both experienced in the tire equipment and repair business, that sudden, hard braking should be avoided following a tire blowout.

As stated, Crupe v. Spicuzza, 86 S.W.2d 347, 350 (Mo.App.1935): “Reasonable minds might * * * conclude * * * that (plaintiff) exercised due care in his attempt to control his car after the blowout, while others * * * might reasonably conclude with equal propriety to the contrary. * * It is indeed a matter of common knowledge that automobiles frequently overturn when blowouts occur, especially if the car is being operated at a high speed, but here the car ran for a very appreciable distance after the occurrence of the blowout before it overturned. It may well be that nothing that (plaintiff) could have done would have averted the casualty, and yet the blowout and subsequent overturning of the car were not so closely connected * * * that (plaintiff) was afforded no opportunity to exercise a proper judgment as to what method to pursue in endeavoring to control and stop his automobile. Rather the question of his exercise of due care in attempting to regain control of his automobile was one for the jury upon the conflicting inferences possible from the evidence, and so there was no error in the submission of such theory of negligence in the instruction.”

Judgment affirmed.

All concur.


author: TURNAGE, Judge.

text:
    Steven L. MILLS, Plaintiff-Respondent, v. KEITH MARSH CHEVROLET, INC., Defendant-Appellant.
    No. 27925.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.

      Wendell E. Koerner, Jr., St. Joseph, for defendant-appellant.

      Errol D. Taylor, Utz, Litvak, Thackery, Utz & Taylor, St. Joseph, for plaintiff-respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   TURNAGE, Judge.

Steven Mills brought suit against Pappas Chevrolet, Bill Allen Chevrolet and Keith Marsh Chevrolet, Inc., for the sale of an automobile which Marsh represented to be new and to have been driven only 137 miles, and which Mills alleged had been driven 3,000 to 5,000 miles. The court directed a verdict in favor of Pappas Chevrolet and Bill Allen Chevrolet. No appeal as to those defendants was taken. The jury awarded Mills $914.88 actual damages and $5,000 punitive damages against Marsh.

On this appeal Marsh contends (1) there was not sufficient evidence to show the automobile had been driven in excess of 137 miles at the time of sale; (2) there was insufficient evidence to show Marsh knew the representation concerning the 137 miles was false; (3) the court submitted a different cause of action to the jury then was pleaded; (4) the court erred in refusing to allow the jury to view the automobile; (5) the court erred in admitting evidence consisting of a security agreement and hearsay, and (6) the award of punitive damages is excessive and the result of bias, passion and prejudice. Affirmed.

Mills purchased a 1973 Chevrolet Nova Hatchback from March in July, 1973. The evidence showed this car had been delivered by Chevrolet to Pappas Chevrolet in Kansas City. The car was subsequently delivered by Pappas to Bill Allen Chevrolet. The general manager of Bill Allen Chevrolet testified the car was delivered to Marsh in May, 1973, and at that time the odometer showed 76 miles. Allen corrected a rattle in the wheel deep well in the trunk by doing a support weld and also refinished the ■ rear deck lid. Allen also removed a scratch from the left front fender. This car did not have a Marsh dealer emblem on it when delivered to Marsh. The manager stated when the car was delivered to Marsh it had new tires.

Marsh admits the automobile was sold to Mills with the representation it was new and had been driven only 137 miles. After Mills took delivery of the automobile, he noticed water in the rim of the spare tire in the trunk, rust under the mat in the bottom of the tire well, the label on the spare tire pressure can was wet and had fallen off, and scratches on the chrome side trim on both sides. He also noticed the paint appeared to be speckled or spotty on the side of the hatchback and glue dripping around the outside of the rear speaker behind the back seat. He further noticed one of the rubber strips on the back bumper was loose.

Mills later observed an overspray of paint on the hatchback latch as well as paint overspray on the Marsh dealer emblem, on the chrome of the left taillight and on the gas cap. He further noticed the welding and rust under the mat in the spare tire well and a welded spot behind the gas cap. The chrome stripping on the lower edge of the rear window was not put together exactly and this also contained paint over-spray.

Mills stated the tailpipe and the underside of the car were rusted. He observed chip marks in the paint on the window channel on the driver’s side and the heater cover inside the car was scuffed. There was a tear in the upholstery on the side panel of the front seat.

Mills took the automobile back to Marsh two days after the purchase and showed an employee most of the defects described above. The employee stated nothing could be done, but a factory representative would have to examine the car. When the factory representative looked at the car sometime later, he declined to take any action.

Mills took the car back to Marsh at least two or three times but was unable to get any explanation as to the welding near the gas cap, the rust on the undercarriage, the paint overspray, and the chipped paint. Mills’ father accompanied him on the last visit and at that time they talked with Keith Marsh. Mr. Marsh looked at the car and stated it was in a deplorable condition and should never have left the lot. Mr. Marsh told the Mills he would repair the car, but Mills requested a new Nova be given to them. Marsh refused to replace the car.

Mills last drove the car on August 1,1973, when the odometer showed 1,348.8 miles.

Mills produced a body repair expert who stated he had examined Mills’ automobile. This witness stated in his opinion the car had suffered damage to the rear. He stated the rear body panel had been repainted, there was still a dent in the rear bumper and a dent had been repaired high on the left rear quarter panel. This repair had been spot painted with overspray on the molding. He further stated the gas cap bad been painted, which was never done at the factory. He testified the trunk latch had been rewelded because it was not a factory weld. He examined the air cleaner and considered it dirtier than would be expected for a car with the number of miles shown. He observed oil leaking out of the transmission and evidence of water leaking around the hatchback.

He observed a lot of rusting on the floor panel in the trunk. He also stated the undercarriage and exhaust system were extremely rusty. He observed the overspray of paint on the Marsh emblem on the rear of the car.

This witness stated the rust on the exhaust pipe could only have been caused by the pipe being hot and subsequently cool, as occurs when a car is driven. This witness stated in his opinion the automobile had been driven from 4,000 to 5,000 miles.

Mills further produced a tire expert who stated tires on new cars came with % inch tread depth. He measured the tread depth on Mills’ car and found it to be ⅝. Based on this measurement, this witness stated in his opinion the automobile had been driven 5,000 to 6,000 miles.

Marsh first contends Mills failed to show by sufficient probative evidence the automobile had been driven in excess of 137 miles at the time Mills purchased it. It is well settled the evidence must be viewed in the light most favorable to the plaintiff who is to be given the benefit of all reasonable inferences to be drawn therefrom. Ackmann v. Keeney-Toelle Real Estate Company, 401 S.W.2d 483, 488[2-5] (Mo. banc 1966). The evidence outlined above is more than sufficient to support a finding by the jury on this issue.

Marsh next contends the evidence does not show his company’s knowledge of the falsity of the representation the automobile had only been driven 137 miles. It is, of course, true that Mills had the burden to prove a submissible case and to do this by adducing substantial evidence of probative value or by inferences reasonably drawn therefrom. Bridgeforth v. Proffitt, 490 S.W.2d 416, 422[6] (Mo.App.1973). Marsh contends there was absolutely no evidence to show he had any knowledge the car had been driven in excess of the miles represented because there was no direct evidence from anyone stating they had either driven the car or had seen the car driven while in the possession of Marsh. However, Mills was entitled to all of the inferences reasonably to be drawn from the evidence and may further prove his case by circumstantial evidence. Circumstantial evidence has been broadly defined as “ ‘evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist.’ ” Bridgeforth at p. 422[6]. The court in Bridgeforth further stated on the same page:

“ ‘[T]he inference drawn must be reasonable, and may not be arrived at by speculation or conjecture. But neither is the inference to be precluded by speculation or conjecture, or by a mere possibility that the contrary may be true. . Probabilities, not possibilities, are controlling. It is not required that an inference be justified beyond all doubt.’ [Citations omitted] . . . ‘the showing of circumstances must be such as indicates to reasonable minds the cause and source of the fire, not leaving it to mere conjecture or speculation, and must be sufficiently strong and complete to reasonably eliminate the “probability” of any other source or cause.’ ”

The court further observed that circumstantial evidence is not required to have the quality of absolute certainty.

Here, the evidence adduced by Mills of damage to the automobile, of wear in the tires, of paint overspray, especially on the Marsh emblem, the rust on the exhaust pipe, dirt on the air cleaner, all combine together to allow the jury to draw a reasonable inference the car had been operated far in excess of 137 miles. These facts further were sufficient to justify the jury in drawing the inference that such use occurred after the car had been delivered to Marsh and in this circumstance that such use had to have been with the knowledge of Marsh.

Of course the testimony on the part of Marsh which indicated a lack of knowledge the car had been operated, and testimony on the part of Marsh to the effect the car had not left his lot, presented questions for the jury to resolve in the matter of credibility, weight and value to be accorded to such testimony. Bridgeforth at p. 423.

The jury resolved the issues against Marsh and because Mills made a submissi-ble case to show Marsh had knowledge of the excess mileage, this contention by Marsh is overruled.

Marsh next contends Mills filed his suit on a theory of rescission of contract and yet submitted to the jury a theory of damages for fraud in the misrepresentation as to the mileage. Mills’ petition alleged the necessary elements involved in a claim for damages for fraud, and, in addition, requested rescission of the contract. The prayer of the petition may be disregarded in determining what relief is authorized by the facts pleaded. S_ v. W_, 514 S.W.2d 848 (Mo.App.1974). The petition contains sufficient averments as to fraud to authorize a submission to the jury for damages on that theory. The election between a cause of action for damages and for rescission is not made by the filing of the suit. Hart v. Midkiff, 321 S.W.2d 500, 505[1-3] (Mo.1959). In addition, Rule 55.06 allows claims to be joined either independently or in the alternative. Since the petition in this case pleaded sufficient facts to state a claim for damages based on fraud, Mills did not make an election at the time he filed his petition as between rescission or damages for fraud. He was authorized to make an election at the time the cause was submitted to the jury on the theory of fraud under the evidence which made a submissi-ble case on that theory.

Marsh requested, during the trial, that the jury be requested to go outside the courthouse to view the automobile. The refusal of this request is assigned as error. The rule in this situation is stated in Zipp v. Gasen’s Drug Stores, Inc., 449 S.W.2d 612, 619[9-10] (Mo.1970) in which the court quoted from an earlier • case as follows:

“ ‘A view is not a matter of right but rests in the sound discretion of the trial judge as to whether it is proper or necessary to enable the jury to obtain a clearer understanding of the issues involved or to make a proper application of the evidence. “It is only when there has been a flagrant abuse of this discretionary power that this court will interfere.” ’ ”

Here Marsh had admitted the car was in a deplorable condition and did not deny the existence of the defects and repairs and body painting which Mills’ evidence showed. There is no showing the testimony of the witnesses, together with the photographs of the automobile introduced in evidence, left any question about the condition of the car unanswered. In this circumstance it was not a flagrant abuse of discretion for the court to refuse the request to have the jury view the automobile.

Marsh next alleges error in the admission of certain evidence. The first item to which objection is made was a security agreement which Mills signed, together with his father, in order to obtain a loan to purchase this automobile. This agreement showed the amount borrowed and the percentage of interest, together with the amount of interest which would be repaid. Marsh contends this exhibit is irrelevant and its admission was prejudicial because the jury might have taken into consideration the amount of interest Mills was paying in assessing damages.

The jury was properly instructed as to the measure of damages and there is no contention the amount found as actual damages is not within the evidence as to the difference in the value of the car as represented and its value in its actual condition. It is difficult to believe this could have misled the jury. In that situation it was not prejudicial to admit the exhibit. This is not to say the exhibit should have been admitted because under the circumstances it was irrelevant. However, “error without prejudice is no ground for reversal.” Neavill v. Klemp, 427 S.W.2d 446, 448[8—10] (Mo.1968); Rule 84.13(b).

The other item of evidence about which Marsh complains concerns testimony by Mills in which he stated repairmen had told his father the car had been wrecked and the tires showed more wear than the odometer indicated. As previously indicated, a body repairman and a tire expert did testify for the plaintiff and both testified fully as to these statements which Mills related in his testimony. The statements Mills was allowed to make were hearsay, but since the repairmen did testify in person, were cross examined, and since their testimony was the same as indicated by Mills in his limited reference to what they had said, there was no prejudice in admitting this hearsay. Jefferson v. Biggar, 416 S.W.2d 933, 938[3] (Mo.1967). The Jefferson case involved an identical situation in which hearsay had been related about certain witnesses and those witnesses later testified in person to the same facts and were extensively cross examined. The court in that case found admission of the hearsay was not prejudicial.

Lastly, Marsh alleges the verdict for punitive damages is excessive and the result of bias, passion and prejudice on the part of the jury. The argument under this point relates to the erroneous admission of the evidence discussed above and a renewal of Marsh’s contention the evidence did not show Marsh participated in any conduct resulting in the concealment of mileage in excess of 137 miles. These arguments have been previously considered. The amount of punitive damages to be awarded for the purpose of punishment and to serve as an example and deterrent to others is within the sound discretion of the jury. Bowers v. S-H-S Motor Sales Corporation, 481 S.W.2d 584, 590[3—4] (Mo.App.1972). The amount set by the jury will not be interfered with unless there is a demonstrated abuse of discretion. “Ordinarily, abuse of discretion in this reference means so out of all proper proportion to the factors involved as to reveal improper motives or a clear absence of honest exercise of judgment.” Bowers at p. 590.

It cannot be said the amount of punitive damages here demonstrates a failure on the part of the jury to exercise its honest judgment.

Marsh raises other points but they are all based on contentions which are discussed herein.

The judgment is affirmed.

All concur.


text:
    Jack W. MERIDETH et al., Appellants-Plaintiffs, v. Charles E. MERIDETH et al., Respondents-Defendants.
    No. KCD 27993.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.

      William Brandecker, Ronald E. Smull, Brandeeker & Smull, Columbia, for appellants-plaintiffs.
    Larry M. Woods, Sapp, Woods & Orr, Columbia, for respondents-defendants.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   TURNAGE, Judge.

Jack, James, Billy and Joe Merideth brought suit against their brothers, George and Charles Merideth, and Charles’ wife, Jean, to impress a resulting trust on the farm belonging to their father. The trial court found the plaintiffs’ evidence was not sufficient to establish a trust, and entered judgment for the defendants.

On this appeal Jack and his brothers contend their evidence was sufficient to call for a resulting trust to be impressed upon the land. Affirmed.

Eugene Merideth was the father of six sons and four daughters. He and his wife lived on a farm of about 120 acres near Columbia, Missouri. The farm, until after the death of Eugene’s wife, was owned by Eugene’s brother. Up to that time Eugene and his wife had never been able to raise enough money to buy the farm, but through an understanding with the brother they were allowed to live there.

Eugene’s wife, the mother of all of the parties here except Jean, died in 1952. Jack, James, Billy and Joe lived in California. All of them except James came to Columbia for their mother’s funeral. George and Charles lived in Columbia.

The testimony on behalf of Jack and his brothers from California indicated a meeting was held after their mother’s funeral. In the brief of Jack and the other plaintiffs, the statement is made that all parties agree the purpose of this meeting was to make their 73 year old father secure to live out his life on the home place. The details of the meeting were somewhat disputed though some facts were agreed upon. All parties agreed the farm could be purchased from Eugene’s brother for the sum of $5,000. Charles had already obtained a commitment for a bank loan in Columbia for $3,000, which left $2,000 to be raised. It is further agreed in the testimony that the $2,000 balance could have been borrowed in Columbia. The difference in the testimony arises concerning the conversation and the parties present at the time the matter of raising the $2,000 balance was discussed.

According to the plaintiffs’ version, the meeting took place at George’s house in Columbia, with Eugene, the father, and Jack, Billy and Joe from California, and George and Charles present. Jack testified the father stated at the meeting the purchase of the farm would provide him a home and the investment of Jack and his California brothers would always be safe. Jack further stated his father was sitting on a couch with tears streaming down his cheeks, flanked by George and Charles, when the conversation took place. Jack further stated George told him his investment would never be worth any less and it would provide a home for their father and the boys’ investment would always be safe. The discussion seems to have indicated the father would continue to live on the farm and George and Charles would continue to do the actual farming. There was no discussion as to how title would be taken to the farm. Joe testified he was not involved in the conversation as such, but did overhear it. He stated the conversation was that the four California sons were to invest in the farm and it would not depreciate and their investment would always be safe. He also understood his father would take title, but he stated there was no discussion as to whether or not the father would notify anyone in the event he transferred title.

Billy testified his father stated if the California boys could raise $500 each, the father could raise the other $3,000. He stated his father said it would be an investment for the boys in California and it would always be safe. He stated George added it would never depreciate and was a good buy. He testified the conversation indicated their father would have the use of the farm and George and Charles would take care of the $3,000 loan, pay the taxes and operate the farm. He further stated no percentage was mentioned concerning the ownership of the California boys, but it just worked out mathematically that $500 was ten percent of the $5,000 purchase price.

The father died in 1967. Between 1952 and 1967 the California sons returned to Columbia on an almost yearly basis. At least it appears one or more of the sons living in California would be in Columbia every year. During this time there was no change in the appearance of the farm. Neither was there any discussion whatever between any of the parties as to the ownership of the farm or the status of the loan or the profit, if any, arising from the operation of the farm. After the father’s death, the California sons returned for his funeral and still no discussion occurred concerning the ownership or disposition of the farm. It was not until 1971 that Jack decided he would try to get some information about the farm. He stated George and Charles were evasive in response to his questions concerning the existence of a will by their father and as to the status of the farm. At a meeting in November, 1971, between Jack, Billy, Joe and George, Jack raised a question about the farm. There is a dispute in the evidence as to what was said, but apparently some comment was made regarding the interest of the California sons in the farm.

In June, 1972, Jack received a tip from one of his sisters that the father had deeded the farm to George and Charles. Jack called the Recorder’s Office in Columbia and verified that in 1961 the father had deeded the farm to George and Charles with the reservation of a life estate in himself. Later Charles had deeded his one-half interest to himself and his wife to create a tenancy by the entirety.

George and Charles testified. George denied their father was at any meeting when the question of raising the additional $2,000 was discussed. Charles denied he ever attended any such meeting.

The burden of proof to establish a resulting trust is on the party seeking to establish it. Earney v. Clay, 516 S.W.2d 59, 68[23-25] (Mo.App.1974). The proof required to establish such a trust must be “so clear and convincing ‘as to exclude all doubt from the mind of the court.’ ” Ellis v. Williams, 312 S.W.2d 97, 102[8] (Mo.1958). In that case the court further stated, quoting from Aronson v. Spiteaufsky, 260 S.W.2d 548, 549 (Mo.1953):

“ ‘To establish an implied trust, whether a resulting or constructive trust, an extraordinary degree of proof is required and vague or shadowy evidence or a preponderance of the evidence is not sufficient. The evidence must be so unquestionable in its character, so clear, cogent and convincing that no reasonable doubt can be entertained as to its truth and the existence of the trust.’ ”

In addition to the burden and degree of proof necessary to establish a resulting trust it is also the rule that such trust is implied by law from the circumstances and facts as they existed at the time of the transaction and from the conduct and acts of the parties. Fulton v. Fulton, 528 S.W.2d 146, 153[5—12] (Mo.App.1975).

In Adams v. Adams, 348 Mo. 1041, 156 S.W.2d 610, 614[6, 7] (1941) the court stated the following elements must be shown by evidence of high probative value by the party seeking to establish the trust:

(1) The showing must be consistent with an intent to create a trust for his own benefit.
(2) The presumed or supposed intent must have existed at the time the [alleged trustee] acquired title.
(3) The money advanced by [the cestui] at the time and subsequently must have been paid with that purpose, and not as a loan or gift to the parents.
(4) If money were loaned no resulting trust can arise even though it was understood the [trustee’s] title should be held for the benefit of [the cestui] as security for the money advanced by him, or even on an agreement to share in the [benefits].

An examination of the evidence adduced by Jack and his fellow plaintiffs shows the main concern at the meeting was to obtain the ownership of the farm for the benefit of the father so he could live out his life on the home place.

The evidence relied upon to show any ownership on the part of the California sons is restricted to statements attributed to their father that they would have an “investment” or “interest” in the farm. The precise percentage interest was deduced by these sons from the fact the amount they agreed to contribute would constitute ten percent of the total purchase price. From this, the California sons contend they are each entitled to a ten percent ownership, or an aggregate of forty percent ownership in the farm.

However, a careful review of the record leads this court to conclude the trial court was correct in holding the plaintiffs’ evidence did not establish a resulting trust. The facts adduced by the plaintiffs about the meeting, taken with the facts and circumstances surrounding that meeting, leads this court to conclude the intent of the contribution made by the California sons was to secure the home place for their father. While it may not be possible to precisely state the California sons made a gift or a loan, the evidence nonetheless leaves too many doubts in the mind of this court to hold the purpose of the contribution was to obtain a beneficial ownership in the farm. The terms used by the father, interest or investment, could equally apply to a loan or to any number of other possibilities. When it is considered the facts necessary to create a resulting trust must have existed at the time the title passed to the father, it is impossible to say without doubt the California sons intended to gain an actual ownership interest in the farm as contrasted with making a gift or loan.

Basically the plaintiffs were required to prove the money they paid was given for the sole purpose of establishing a trust for their benefit. The evidence on that is too vague and equivocal to meet the burden the law imposes on the plaintiffs.

The plaintiffs advance the argument that money advanced from a child to a parent for the purchase price of land is not presumed to be a gift. This was held in Adams, supra. The plaintiffs conclude from this that a resulting trust must be presumed in this case. This argument was answered in Adams in the following language at 156 S.W.2d 614[3, 5]:

“It is true that when one person furnishes the purchase price of land and another takes the title, the law implies a resulting trust in favor of the former. As the term signifies, the trust results from those facts; and in that sense it may be said the law presumes or supposes an intent to create a trust after the basic facts are proven. 65 C.J. § 155, p. 380. But until then no such presumption arises, for the law also requires contracts for the sale of real estate and conveyances of title to be in writing, and prima facie presumes the holder of the title to be the owner. . And so, because of the instability of parol evidence and for the [purpose] of titles, almost universally the cestui que trust is required to show by clear, cogent and convincing evidence the underlying facts necessary to raise the presumption.”

In this case plaintiffs failed to prove the underlying facts by the degree of proof required to raise a presumption of a resulting trust. The facts shown by plaintiffs indicate the money may have been either a gift to their father or a loan. In that circumstance no presumption can arise because the underlying facts which would give rise to a presumption have not been proven.

The plaintiffs further argue the deception which they claim George and Charles practiced in failing to reveal the fact the father had deeded the farm to themselves proves a trust. However, this occurred long after the money was given to the father and the facts necessary to establish the trust must exist at the time the title passed to the father. Thus any deception practiced by George and Charles would have no bearing on proving facts necessary to create a resulting trust.

The finding of the trial court that the evidence of plaintiffs “to establish a trust was not so clear, cogent and convincing as to exclude any reasonable doubt thereof” was correct. The judgment is affirmed.

All concur.


text:
    Lewis E. MORRIS, Respondent, v. Robert B. PATTERSON and Equity Mutual Insurance Company, Appellants.
    Nos. KCD 28036, KCD 28039.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.

      L. Stanley Braton, Warrensburg, Kelly Pool, Jefferson City, for appellants.
    John 0. Bond, Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action for damages arising out of automobile collision. Lewis E. Morris, the driver of one auto, sued Robert B. Patterson, alleging that he was the driver of the vehicle which rear-ended Morris’s auto. Morris joined a claim against Equity Mutual Insurance Company, his insurer, on the basis of the uninsured motorist coverage of the policy issued by Equity to Morris. Trial to a jury resulted in a verdict in favor of plaintiff against both defendants and an award of damages of $7,500.00. Equity’s motion for new trial was sustained. Patterson’s post-trial motion was overruled. He appealed. Equity also appealed. The appeals have been consolidated.

The accident occurred January 14, 1972, when Morris was travelling west on U.S. Route 50 near Knob Noster, Missouri. His vehicle was struck in the rear by another auto travelling in the same direction.

Plaintiff’s petition was in three counts. (Count II, a claim on behalf of plaintiff’s wife, was abandoned.) Count I sought damages against Patterson. Count III sought recovery against Equity on the basis of its uninsured motorist coverage extended to plaintiff. '

The verdict of the jury was in favor of plaintiff and against both defendants. The verdict fixed plaintiff’s damages at $7,500.00. The trial court sustained Equity’s motion for new trial on the grounds that letters offered in evidence by plaintiff to prove that Patterson was an uninsured motorist were improperly admitted in evidence because they violated the hearsay rule.

In his appeal, Patterson argues that his motion for directed verdict should have been sustained and, alternatively, that his motion for new trial should have been sustained. Equity joins in Patterson’s contention that he was entitled to a directed verdict and also alleges error in the overruling of Patterson’s motion for new trial on one of the grounds advanced by Patterson. Equity also contends that its motion for directed verdict and motion for judgment in accordance therewith should have been sustained.

A threshold question is whether or not the judgment appealed from is final and appealable.

“ ‘The right of appeal shall be as provided by law’ (Rule 81.01, V.A.M.R.), i. e., the right to appeal is purely statutory. Steffan v. Steffan, 390 S.W.2d 587, 590[1] (Mo.App. 1965). To be ripe for appeal, a judgment must finally dispose of all issues raised by the pleadings [Coonis v. Rogers, 413 S.W.2d 310, 313[1] (Mo.App. 1967)], and it is the duty of an appellate court, sua sponte if not otherwise, to determine if a final appeala-ble judgment has been rendered before it undertakes to consider the matter on its merits. Anderson v. Metcalf, 300 S.W.2d 377, 378[1] (Mo. 1957).” Starnes v. Aetna Casualty and Surety Company, 503 S.W.2d 129, 130—131[1] (Mo.App. 1973).

Ordinarily, where plaintiff makes a claim against two defendants, and a judgment rendered for or against one defendant and a new trial has been awarded the second defendant, there is no final appeala-ble judgment because all issues as to all parties have not been disposed of. Swindler v. Gross, 395 S.W.2d 109 (Mo. 1965).

In its notice of appeal, Equity states:

“The basis for Equity Mutual Insurance Company’s appeal from the judgment entered against defendant Patterson is that it is aggrieved by that judgment in that it is bound by that judgment’s determination of the issues of defendant Patterson’s liability, and plaintiff’s damages as held by the following cases: State ex rel. State Farm Mutual Insurance Company v. Craig, 364 S.W.2d 343 (Spr.App.) 1963; Wells v. Hartford Accident and Indemnity Company, 459 S.W.2d 253 (Mo.Sup.Banc) 1970; and Beard v. Jackson, 502 S.W.2d 416 (St.L.App.) 1973.

“As a proper party appellant to this appeal and for the reasons stated above, and on the theory set forth in the cases such as Gray v. Coplar [Koplar]-Barron Realty Company, 497 S.W.2d 185 (St.L.App.) 1973, Defendant Equity Mutual Insurance Company submits that it should also be heard on the question of the correctness of the trial court’s ruling on its Motion for Judgment in Accordance with its Motion for a Directed Verdict inasmuch as the correctness of the trial court’s ruling on defendant Patterson’s similar motion is before the court on this appeal and for the additional reason that the consideration of this issue at this time can expedite the conclusion of this entire litigation.”

As the cases cited by Equity in the first above quoted paragraph hold, Equity would be bound by the determination against Patterson insofar as Patterson’s liability and respondent’s damages are concerned, should Equity be found liable under its uninsured motorist coverage. Obviously, however, Equity is not concerned with the judgment against Patterson unless and until the application of the uninsured motorist coverage to the accident has been determined. In view of the fact that Equity’s motion for new trial has been sustained, that issue is presently undetermined. The judgment has not disposed of all issues and all parties.

Equity also asserts that it is entitled to be heard on the correctness of the trial court’s failure to sustain its motion for judgment. There is no provision for appeal from an order overruling a motion for judgment for defendant. Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333, 335[1] (1949). Equity asserts that it is entitled to be heard in this regard under the exception to the rule, announced in cases such as Page v. Hamilton, 329 S.W.2d 758 (Mo. 1959), and Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693 (1952). In those cases, the court held that when the trial court grants a new trial on a limited issue, not requested by the party in whose favor the order issues, the new trial is in effect on the court’s own order, and a party aggrieved thereby, such as a defendant who sought a new trial on all issues, has a right of appeal under § 512.020, RSMo 1969. In this case, the trial court sustained Equity’s motion for new trial and therefore it cannot assert that it is an aggrieved party.

The judgment against Patterson did dispose of the issue between him and respondent, but it did not dispose of the other issues in the cause and is not presently appealable. Swindler v. Gross, supra.

Accordingly, it must be concluded that there is no final judgment in this case from which an appeal presently lies and the appeals must be dismissed.

Appeals dismissed.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent, v. Steve THOMAS et al., Appellants.
    No. KCD 28203.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Ralph 0. Wright and Gary W. Collins, Kansas City, for appellants Diana L. Thomas, Harvey H. Thomas and Helen Thomas.
    Thaine Q. Blumer, Kansas City, for appellant Steve Thomas.
    Edward W. Mullen, Deacy & Deacy, Kansas City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   SWOFFORD, Presiding Judge.

In this action the respondent (State Farm) sought a declaratory judgment to the effect that a certain automobile liability policy of insurance did not impose upon it any duty or obligation to appellants. The matter was submitted to the court upon a stipulation of facts and the briefs of the parties, and, upon motion by State Farm, a summary declaratory judgment and decree was entered in its favor. The appellants thereupon appealed.

The undisputed facts disclose the following:

On May 15, 1971, Steve Thomas, then 20 years of age, drove a 1966 Chevrolet automobile owned by his parents off the highway, collided with a guardrail and went into a ditch, thus injuring his 7 year old sister, Diana Thomas, who was a passenger in the car. Steve had been given permission by his parents to use the car at that time. Diana was a resident of the same household as her parents, but Steve’s residence was not shown and was. in dispute.

At the time of this accident there was in full force and effect an automobile liability insurance policy covering the 1966 Chevrolet issued by State Farm and wherein Harvey and Helen Thomas were the named insureds.

Diana brought suit against her brother, Steve, for damages for personal injury, and Steve tendered the defense of this case to State Farm. It declined to defend and denied coverage upon the basis that under the terms of its policy bodily injury to Diana was specifically excluded under the policy provisions. Thereafter, State Farm filed this declaratory judgment action during the pendency of which Diana secured a judgment against her brother, Steve, in her damage action.

Provisions of the policy of insurance pertinent to this action are here set forth.

“SECTION I (Page 3) — LIABILITY AND MEDICAL PAYMENTS INSURING AGREEMENTS
COVERAGE A — BODILY INJURY LIABILITY
* * * * * *
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
A. bodily injury sustained by other persons, and
* * * * * *
EXCLUSIONS — SECTION I (Page 4) THIS INSURANCE DOES NOT APPLY UNDER:
* * * * * *
(h) COVERAGE A. TO BODILY INJURY TO ANY INSURED OR ANY MEMBER OF THE FAMILY OF AN INSURED RESIDING IN THE SAME HOUSEHOLD AS THE INSURED ;
******
DEFINITIONS — SECTION I (Page 5)
******
Insured — the unqualified word ‘insured’ includes
1. the named insured, and
2. * * * his or their spouse(s) if a resident of the same household, and
3. If residents of the same household, the relatives of the first person named in the declarations, or of his spouse, and
4.any other person while using the owned motor vehicle * * * (permissive user)” (Emphasis partially supplied by insurance policy and partially by the Court.)

Upon the basis of these stipulated facts and policy provisions, the court below made findings of fact and conclusions of law holding that Diana Thomas, daughter of Harvey Thomas, the first named insured in the policy and a resident of his household was an “insured” as defined in Section 1(3) in the “Definitions” above set forth, and that as such, her right to recover under the policy was specifically excluded under “Exclusions” in Section 1(h), above quoted, as included in the term “any insured”.

The appellants raise two points of error. First, they assert that Steve Thomas, the tortfeasor, was the insured under the permissive user or omnibus provisions of the policy and Diana was not a member of his household and therefore her claim against him was protected by the insurance. Second, they claim that the above-quoted policy provisions are ambiguous and therefore should be interpreted liberally to provide coverage to appellant, Steve Thomas, to protect him against the claim of his sister. These assignments of error are so closely related that they can be considered together.

The respondent on the other hand argues that the above-quoted policy provisions are clear and unambiguous and plainly exclude liability coverage for the injuries to Diana Thomas since she was an “insured” by definition and also was a member of the family of the named insureds, residing in their household.

The rule is firmly established in Missouri that insurance policies, like other contracts, must be given reasonable interpretations and in construing the terms of a policy “the courts discharge their full duty when they ascertain and give effect to the intention of the parties, as disclosed by the contract they have entered into.” Lynch v. National Life and Accident Insurance Co., 278 S.W.2d 32, 33 [1] (Mo.App.1955), and cases cited therein. Plain and unambiguous language must be given its plain meaning, State ex rel. Prudential Insurance Co. of America v. Shain, 344 Mo. 623, 127 S.W.2d 675, 676 [2] (Banc 1939), and this rule applies to restrictive provisions in insurance contracts, Wendorff v. Missouri State Life Insurance Co., 318 Mo. 363, 1 S.W.2d 99, 102 [7] (1927).

Apparently appellants claim that the ambiguity of the insurance policy here involved arises from the fact that the insuring clause first above quoted extends coverage to “the insured” for bodily injury sustained by “other persons”, whereas, the exclusion clause refers to “any insured”. Defendants argue that “the insured” in this case is the tortfeasor, Steve Thomas, and that the “other person” is Diana Thomas, and thus conclude that the respondent is liable under the policy.

This argument is an exercise in semantics and disregards the patent fact that by plain and unambiguous language in the definition portion of the contract Diana, being a resident of the same household as her father, the “first named person in the declaration”, is an “insured” and is one of the class of persons specifically excluded from protection for bodily injuries under the liability insurance, Section 1(h), supra.

The legality of similar exclusionary provisions in automobile liability insurance contracts have been consistently upheld by the appellate courts of Missouri and by an overwhelming number of decisions from other jurisdictions.

In Gabel v. Bird and State Farm Mutual Automobile Insurance Company, 422 S.W.2d 341 (Mo.1967), the insured, Gabel, gave one Floyd Bird, Jr. permission to use the insured vehicle and Bird thus became an insured under the omnibus provision of the policy. During the course of such use and while Bird was driving the automobile, it overturned and caused the death of the named insured’s daughter, Judith, who was a passenger therein. Judith was an un-emancipated minor residing in the same household as her parents. Gabel and his wife brought suit against Bird for the wrongful death of Judith; State Farm refused to defend Bird, and the Gabels recovered a judgment. This garnishment proceeding followed and the court found the issues for the garnishee.

The policy involved contained an exclusion which provided:

“This insurance does not apply under: * * * (i) coverage A, to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured; * *

(Emphasis supplied)

The garnishee, State Farm, refused to defend Bird on the theory that the policy of insurance issued to Gabel did not cover Judith because she was an insured under the policy issued to her father. In affirming the judgment dismissing the garnishee, the court considered the exclusion clause together with the definition of “insured” (identical with the definition contained in the policy now under consideration) and stated, 1. c. 344 [3]:

“ * * * That (the exclusion clause) certainly included Judith, the injured person. It was admitted that Judith was a member of the family and resided with her parents. Clearly, Judith, had she lived, could not have recovered from State Farm Mutual under the policy even if she had obtained a judgment against Bird. In these circumstances, the parents cannot recover on the policy of insurance. ⅝ * ‡ tt

The court cited three earlier decisions of the Missouri courts in support of this conclusion, namely: Sibothan v. Neubert, 168 S.W.2d 981, 984 [2] (Mo.App.1943); Perkins v. Perkins, 284 S.W.2d 603, 610-611 [8] (Mo.App.1955); and, State Farm Mutual Auto Ins. Co. v. Ward, 340 S.W.2d 635, 640 [5] (Mo.1960). The court then stated, 1. c. 344 [3]:

“ * * * The fact remains that Judith Gabel was a member of the Gabel family, and State Farm Mutual under the policy, was not liable for injuries to Gabel and members of his family residing in his household. This court is powerless to change the plain terms of the insurance contract in question.”

To like effect see: Tickner v. Union Insurance Company, 425 S.W.2d 483, 486 [2] (Mo.App.1968); and State Farm Mutual Automobile Insurance Company v. McBride, 489 S.W.2d 229 (Mo.App.1972).

It will be noted that the only difference in the exclusion clause in Gabel and the clause in the present case is the use of the phrase “the insured” in Gabel, while in this policy the phrase “any insured” is employed. The latter phrase clearly would have a broader connotation and describe a larger and more inclusive class of persons than the former. Either would necessarily include Diana as an insured as a resident of her parents’ household and State Farm would not be liable for injuries sustained by her under the circumstances of this case.

Appellants argue that Steve Thomas was the only insured and ignore the fact that Diana was also an insured by definition under the policy provisions, who, by the terms of the exclusionary clause must be denied protection under the policy. This result must be reached even though she was only 7 years old, and, of course, would not qualify in the orthodox, underwriting sense, for automobile liability insurance. Appellate courts cannot make or rewrite insurance policies, even though it may appear in some respects they operate harshly or inequitably as to one of the parties. Packard Mfg. Co. v. Indiana Lumbermens Mut. Ins. Co., 356 Mo. 687, 203 S.W.2d 415, 416 [1] (banc 1947); Surface v. Banger Insurance Company, 526 S.W.2d 44, 48 [5] (Mo.App.1975), and cases cited therein.

Appellants place their principal reliance upon two cases from other jurisdictions, State Farm Mutual Automobile Ins. Co. v. Jacober, 10 Cal.3d 193, 110 Cal.Rptr. 1, 514 P.2d 953 (Cal. banc 1973), and New York Underwriters Insurance Co. v. Spiller, 109 Ariz. 31, 504 P.2d 932 (banc 1973), wherein different conclusions were reached under similar situations as are presented here.

■ However, the Missouri decisions above noted are in line with the vast majority of the other jurisdictions and in any event, are binding upon this court.

Accordingly, the judgment is affirmed.

All concur.

      . Collected 46 A.L.R.3d 1024, et seq.


author: SWOFFORD, Judge.

text:
    Jay F. DAVIES et ux., Respondents, v. Lena McDOWELL et al., Appellants.
    No. KCD 28315.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.

      Roger J. Barbieri, Barbieri, Combs & Gotschall, Kansas City, for appellants.
    Warren S. Earhart, Gersh, Holt, Earhart, Jones & Dibler, Grandview, for respondents.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

The parties to this action are the owners of adjoining duplex homes sharing a party wall. The respondents (plaintiffs) are husband and wife, and the appellants (defendants) are a widow and her son and daughter and each owns their respective properties in fee simple.

The plaintiffs brought this action seeking specific performance of a certain covenant in a “Party Wall Agreement” concerning the common wall separating the properties. This document was executed on August 5, 1966 by the developer of the residential area, Raytown Land Company, and was filed of record and contains perpetual covenants running with their land. Each of the parties took title to their properties subject to such covenants. The plaintiffs’ claim-was that the defendants violated a provision of these covenants in failing to notify the plaintiffs of a sale of defendants’ property and failing to recognize plaintiffs’ preemptive right to purchase such property. They asked for a decree of specific performance of the terms of the agreement and a decree vesting title to the defendants’ property in them, and for money damages for rentals of which they were deprived.

The case was tried before the court below, without a jury, and the court entered a decree and judgment ordering specific performance and the transfer of defendants’ property to the plaintiffs upon the payment to the defendants of $16,750.00; found that plaintiffs had been damaged by loss of rentals in the amount of $4,495.00 and allowed such sum as an offset against the $16,-750.00, leaving a net payment due to defendants of $12,255.00. Upon the payment of such sum, the defendants were ordered to execute a deed of conveyance to plaintiffs; and, in the event of their failure to do so. the defendants were divested of their title upon the payment of such sum into the registry of the court. After an unavailing motion for a new trial, the defendants appeal.

They raise two points on this appeal. First, that the court erred in entering judgment for the plaintiffs and in holding that the Party Wall Agreement gave the plaintiffs a preemptive right to purchase the defendants’ property as such agreement was void and unenforceable in that it violates the Rule Against Perpetuities and represents an unreasonable restraint on alienation. Second, the court erred in awarding damages to the plaintiffs for lost rentals because such items were special damages that should have been (but were not) pleaded, communicated to the defendants, all expenses should be considered before arriving at proper damages, and that evidence of rental value alone is insufficient to support the damage award.

The Party Wall Agreement filed of record by the Raytown Land Company in August of 1966 contains the following provisions pertinent to this appeal:

“PARTY WALL AGREEMENT
WHEREAS, Raytown Land Co., a Missouri corporation, duly qualified to conduct business in the State of Missouri, is the owner in fee of the following described real estate, * * * and
WHEREAS, said owner has constructed on said premises for sale to various and sundry persons, a multiple dwelling composed of two (2) dwelling units connected by a division or party wall and said owner proposes to sell said property in two (2) lots or parcels, which parcels are as follows:
******
NOW, THEREFORE, the undersigned, in order to protect each and every purchaser, his heirs and assigns, of any such dwelling unit, the following easements on building structures and party walls located on said premises are hereby created, to-wit:
******
12. If any owner of a dwelling unit other than Raytown Land Co. shall desire to sell the same, and shall at any time, or from time to time, receive an acceptable bona fide offer from a stranger in ownership to purchase the same, he shall give notice thereof by registered mail addressed to the other owner at the dwelling unit owned by him, setting forth all of the terms and conditions of said offer. If, within thirty (30) days after receipt of such notice, the other owner has not, in writing, accepted and agreed to fulfill the same terms of sale as those received from such stranger in ownership, then provided he has obtained the consent required in paragraph 11, the owner desiring to sell, may sell his dwelling unit to such stranger in ownership.
13. The easements hereby created are and shall be perpetual and shall be construed as covenants running with the land. * * * ” (Emphasis supplied)

The plaintiffs sought and were granted a decree of specific performance of the right of preemptive purchase as provided in paragraph 12.

There is no relevant dispute as to the factual background of this case. The plaintiffs acquired their property by warranty deed dated July 21, 1970, wherein the defendant, Lena McDowell, and Mary E. Malone were the grantors. Plaintiff Jay Davies testified that when this deed «was delivered, a copy of the Party Wall Agreement was also given him, although Mrs. McDowell testified that she was never aware of the existence of the agreement or of its contents until this dispute arose.

On February 13, 1973, the defendants sold their duplex to Kathleen M. Rowen, a single person, and Lawrence T. Rowen and Theresa M. Rowen, husband and wife, for $16,750.00 and delivered a warranty deed of conveyance.

No consent was obtained from the plaintiffs under paragraph 11 nor notice given to them under paragraph 12 of the agreement. Mr. Davies learned of the Rowen purchase on February 18, 1973 and advised the defendants by letter of his desire to exercise his preemptive right to purchase the property under date of February 20,1973. This was followed by a formal notice by certified mail to all concerned parties under date of March 5, 1973 of the exercise of the preemptive right to purchase under the same terms as the Rowen sale in accordance with paragraph 12 of the Party Wall Agreement. He testified that although he was at all times ready, willing and able to complete the purchase, he never received any acceptance of his offer.

Under date of May 22,1973, he received a letter from the attorney for the defendants requesting permission to rent the McDowell-Nichols duplex to a Rich Baldwin. Plaintiffs’ attorney responded on their be-half refusing such consent, reaffirming the plaintiffs’ right of preemption purchase, and repeating the plaintiffs’ offer to purchase.

Mrs. McDowell testified that the Rowens had deeded the property back to the defendants, such deed being dated April 27, 1973 and recorded May 18, 1973, and she had returned the entire purchase price and reimbursed the Rowens for their expenses. This transpired after the instant suit was commenced. She thereupon rented the property to Rich Baldwin for $175.00 per month. She admitted that she never offered the property to the plaintiffs, as required by paragraph 12, nor obtained their consent to the Rowen sale as required by paragraph 11. She denied any actual knowledge of the Party Wall Agreement prior to the Rowen sale. No request for consent or notice of the Rowen sale was given to the plaintiffs by the Nichols or anyone acting on their behalf.

It should be here noted that the whole thrust of plaintiffs’ petition, their evidence, trial theory and request for relief centers on the preemptive right created by paragraph 12 of the Party Wall Agreement and it is that right only which they sought to enforce and which the decree of specific performance protected.

The fact that no consent to the Rowen sale was ever sought or given under paragraph 11 is only incidental to the primary issue here presented. Appellant strongly attacks paragraph 11 of the agreement (Footnote No. 1, supra) as illegal and void because it is an improper restraint upon the right of alienation, an inseparable incident to an estate in fee simple, and there is substantial merit and logic in that position. Such contentions, however, need not be and are not decided here.

The issue on this appeal, thus narrowed, is whether or not paragraph 12 of the Party Wall Agreement considered with the other terms of the agreement violates the Rule Against Perpetuities. The conclusion is reached that it does.

At the outset, it is necessary to note a common misconception concerning the Rule Against Perpetuities which misconception is embraced in respondents' brief wherein it is argued that the preemptive right of purchase does not violate the rule because there are always persons in being who can convey the entire fee estate. The cases cited in support of this position, Stevens v. Annex Realty Co., 173 Mo. 511, 73 S.W. 505 (1903); Noel v. Hill, 158 Mo.App. 426, 138 S.W. 364 (1911); Melvin v. Hoffman, 290 Mo. 464, 235 S.W. 107 (banc 1921); Pierce v. St. Louis Union Trust Co., 311 Mo. 262, 278 S.W. 398 (1925), are not in point. Examination of the decisions reveals they held either (1) that the interest vested absolutely and the Rule Against Perpetuities did not apply, or (2) spoke to the problem only in the terms of restraints upon alienation, or (3) like respondents, confused the Rule Against Perpetuities with the Rule Against Unreasonable Restraints on Alienation.

The Rule Against Perpetuities and the Rule Against Unreasonable Restraints on Alienation, however closely akin, are two distinct rules of property. The former is a rule against remoteness in the vesting of title while the latter deals only with existing limitations restricting alienation. Otherwise stated, “The rule against perpetuiti-es fixes the time within which a future interest must vest, while the rule against restraints on alienation is to prevent the inalienability of present or future vested interests”, Kershner v. Hurlburt, 277 S.W.2d 619, 623[3] (Mo.1955); Atchison v. City of Englewood, 170 Colo. 295, 463 P.2d 297 (banc 1970); 70 C.J.S. Perpetuities § 2, pp. 574, 575; Lynn, The Modern Rule Against Perpetuities, p. 9, Cf: Missouri State Highway Commission v. Stone, 311 S.W.2d 588 (Mo.App.1958); St. Louis Union Trust Co. v. Kelley, 355 Mo. 924, 199 S.W.2d 344 (Mo.1947); Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135 (banc 1932). Concern here is directed to the Rule Against Perpe-tuities.

Broadly stated, this rule “requires that every future interest be so limited that by the terms of its limitation it must either vest or cease to exist within the period allowed. If by the terms of its limitation it might continue to exist as an unvested interest after the period allowed it is void in its creation.” Fraser and Sammis, The California Rules Against Restraints on Alienation, Suspension of the Absolute Power of Alienation and Perpetuities, 4 Hasting L.J. 101, 107 (1953), Cf: Gray, Rule Against Perpetuities, Sec. 201; Mercantile Trust Company v. Hammerstein, 380 S.W.2d 287 (Mo.1964); St. Louis Union Trust Co. v. Kelley, 355 Mo. 924, 199 S.W.2d 344 (1947). More precisely defined, the rule (applicable in Missouri) as stated in 23 V.A.M.S., Sec. 66, pp. 59-60, Eekhardt and Peterson, Pos-sessory Estates, Future Interests and Conveyances in Missouri,

“The rule may be stated as follows: A future interest subject to a condition precedent is void if by any conceivable course of events the conditions precedent' may happen and the interest vest more remotely than a period of lives in being and a period of twenty-one years there? after, and any actual periods of gestation.”

See: St. Louis Union Trust Co. v. Kelley, 355 Mo. 924, 199 S.W.2d 344, 350[10, 11] (1947).

While rights of preemptive purchase are subject to enforcement in equity for specific performance, Gilmore v. Letcher, 508 S.W.2d 257, 262[8] (Mo.App.1974), such rights are also subject to the restrictions of the Rule Against Perpetuities. Kershner v. Hurlburt, supra; American Law of Property, Vol. VI, Sec. 26.64, p. 506; Thompson on Real Property, Section 2015, p. 613.

This principle is thus stated in 61 Am.Jur.2d, Perpetuities and Restraints on Alienation, Sec. 54, Pre-emptive rights, p. 55:

“A pre-emptive right to purchase real estate, which right involves the creation of a privilege to buy only on the formulation of a desire by the owner to sell, as distinguished from an ordinary option giving the optionee the absolute right to buy for a definite consideration, is held to be subject to the rule against perpetuiti-es. Thus it has been ruled that a contractual right, granted to A and his heirs and assigns, unlimited as to time, to purchase real estate upon the same terms as the owner could and would sell to a third person, is void. However, where a preemptive right option is personal to the parties and is not binding upon their heirs or assigns, it has been held not to violate the rule against perpetuities.” (Emphasis supplied)

In Kershner v. Hurlburt, 277 S.W.2d 619 (Mo.1955), contemporaneously with the conveyance of one-half of a lot, the grantor and grantee entered into a separate agreement whereby they gave to each other the preemptive right to purchase the half owned by each, in the event one decided to sell, at the price which they paid for such one-half plus the cost of improvements added since acquisition. Thereafter, one of the parties sold his one-half to a third party without first offering it to the owner of the other half at the price set in the contract. The trial court refused to decree specific performance. On appeal, the respondent contended that the contract was unenforceable because it violated the Rule Against Perpetuities and constituted an unreasonable restraint on alienation. While holding that both rules were applicable to such a contract, the appellate court held that, since the contract did not purport to bind the heirs or assigns of the parties, the rights were personal to the parties and terminated at their deaths, the Rule Against Perpetu-ities was not violated. The court held, however, that the contract was an unreasonable restraint on alienation because of the fixed price provision above noted. The other Missouri cases cited in the briefs and disclosed by independent research are distinguishable on the facts and not helpful toward a solution of the problem here presented.

Decisions from other jurisdictions, commanding respect and persuasive here, have substantially applied the principles enunciated in the above quote from 61 Am.Jur.2d. Atchison v. City of Englewood, 170 Colo. 295, 463 P.2d 297 (banc 1969); Henderson v. Bell, 103 Kan. 422, 173 P. 1124 (1918); Maddox v. Keeler, 296 Ky. 440, 177 S.W.2d 568, 162 A.L.R. 578 (1944); Skeen v. Clinchfield Coal Corporation, 137 Va. 397, 119 S.E. 89 (1923); Ross v. Ponemon, 109 N.J.Super. 363, 263 A.2d 195 (1970); H. J. Lewis Oyster Co. v. West, 93 Conn. 518, 107 A. 138 (1919); 40 A.L.R.3d 920.

The Party Wall Agreement here under consideration purported to bind “every purchaser, his heirs and assigns” and, thus, could not by any stretch of reason be deemed to be a “personal” preemptive right to purchase as between the parties to this action. Neither is this right limited as to time. Indeed, paragraph 13 expressly states, “The easements hereby created are and shall be perpetual ”. The conclusion is inevitable that the preemptive purchase right purported to be granted in the Party Wall Agreement is void and unenforceable because violative of the Rule Against Per-petuities.

While not discussed by the parties to this appeal, the Legislature of this state has enacted a statute, Section 442.555 RSMo 1969, Laws 1965, p. 628, and that statute is applicable here. This statute provides that if a part only of an instrument is held to be void as a violation of the Rule Against Perpetuities the remaining provisions shall be valid and effective, according to their terms, and further provides for an action to reform the offending provision so as to remove the fault.

Mention is made of this because the scope of this decision should not and is not extended beyond the limited holding that paragraph 12 of the Party Wall Agreement is void and unenforceable. Because of the realization that the other parts of the agreement with the possible exception of paragraph 11 (not here directly at issue) are necessary to the continued ownership, security and enjoyment of the real property involved, they should be and are left undisturbed by this decision.

One further matter deserves comment. The respondents assert in the argument portion of their brief (apparently as an afterthought) that the defense of violation of the Rule Against Perpetuities is not available to the appellants because such defense was not specifically pleaded, is • an affirmative defense and is required to be set forth affirmatively in their answer under Rule 55.08 of the Rules of Civil Procedure. There is no merit to this contention.

The plaintiffs (respondents here) pleaded the Party Wall Agreement in their petition and incorporated such agreement by reference therein and claimed that paragraph 12 thereof gave them “the right of pre-emption to purchase”. The legality of that paragraph was thus put in issue. In their first amended answer the defendants (appellants here) denied such allegation and asserted that such provision deprived them of “property rights as provided under the laws of the State of Missouri.”

Counsel for respondents in his opening statement to the court recognized this as a legal issue in the case under the pleadings, as thus appears in the transcript:

“MR. EARHART: The Defendants have raised the issue in their answer that the provision in the covenant that’s recorded violates the rule against perpetu-ities, * * * ”

The case was tried and submitted to the court with this legal issue very much alive and in .appellants’ motion for a new trial the assignment of error that paragraph 12 violated the rule was specifically raised. Neither the court nor counsel were in any way misled or surprised that this was a real issue properly submitted for adjudication. The respondents’ argument on this point is without merit.

Because of the conclusions reached herein, it is unnecessary to rule upon the appellants’ second point.

The judgment and decree below is reversed.

All concur.

      . Paragraph 11 of the agreement provides:
      “No owner of a dwelling unit other than Raytown Land Co. will ever cause, suffer or permit his unit to be sold, rented to or occupied by any other person without first obtaining the consent in writing of the other owner; provided, however, that such consent shall not be arbitrarily or unreasonably withheld.”

      . On February 14, 1973, the Rowens executed a deed of trust to Frank P. Sebree as Trustee for the Home Savings Association, which was thereafter cancelled. Sebree and the Association were initially parties to this action but these parties offered no defense and the judgment and decree herein dismissed the action as to them.


author: PER CURIAM.

text:
    Irene YOUNG, Respondent, v. Kenneth COLE, d/b/a A-1 Concrete Construction Company, Appellant.
    No. KCD 28447.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Laurence B. Silks, Kansas City, for appellant.
    Jon M. Krebbs, Kansas City, for respondent.
   PER CURIAM.

With tenacity, respondent renews in her brief her previous motion to dismiss the appeal on the ground that it was not timely filed. The record shows appellant’s motion to set aside a default judgment was overruled in the trial court on November 17, 1975. Appellant then normally had ten (10) days to file his notice of appeal, and he filed it on November 28, 1975, eleven (11) days after the date of judgment entry under Rules 81.04 and 81.05. Respondent fails to note that the tenth day, November 27,1975, was a legal holiday, Thanksgiving Day, which under Rule 44.01 is not to be included in the computation. The motion to dismiss appeal was therefore properly overruled by this court on May 12, 1976.

This case arose in magistrate court wherein respondent recovered a default judgment on her two-count petition for damages to her home and sewer line by appellant in performing repairs, totalling $3,000.00. Appellant appealed the case to circuit court, where, according to a letter of June 11, 1975, respondent’s counsel advised appellant’s counsel that the case was set for trial for September 15, 1975. Appellant’s counsel mistakenly noted the date of trial on his calendar as October 15, 1975. On September 15, 1975, respondent and her counsel appeared, but neither appellant nor his counsel appeared, and a second default judgment was granted by the trial court in the same amount. The motion to set aside default judgment was filed September 23, 1975, which had as its grounds: “1. That due to the omission and oversight of defendant’s attorney; after receiving notice on June 11, 1975 that this matter was set for trial on September 15,1975, defendant’s attorney placed said information on his calendar but through error noted it for October 15, 1975. * * * 4. That defendant has a meritorious defense and allowing this judgment to stand would not be equitable, and would be an injustice to him.”

It is clear that appellant’s counsel was negligent in not correctly noting the trial date of which he had knowledge, and consequently not appearing on September 15, 1975. In Edwards v. Rovin, 322 S.W.2d 139, 142[5] (Mo.App.1959), the motion to set aside the default judgment alleged that defendant’s attorney had misunderstood his instructions “ ‘pertaining to the representation in this matter and therefore failed to appear in Court at the proper time of the hearing of this matter.’ ” The court said, “Defendant is chargeable with the failure of his lawyer to appear and any negligence of his lawyer in permitting the default judgment to be entered is imputable to the defendant. (Citing cases.)” In Linneman v. Whitley, 402 S.W.2d 76 (Mo.App.1966), the record showed that the trial court had notified appellants’ then counsel of the trial setting, and appellants’ then counsel failed to appear and a default judgment was entered. The court again iterated the rule, “His [counsel’s] negligence in permitting the default judgment to be entered is imputable to the appellants.” See also Fulton v. International Tel. & Tel. Corp., 528 S.W.2d 466 (Mo.App.1975); Ward v. Cook United, Inc., 521 S.W.2d 461 (Mo.App.1975); Askew v. Brown, 450 S.W.2d 446 (Mo.App.1970). It is not shown by any set of facts or circumstances that the neglect in this case was excusable, and even if it were shown, the excuse for the neglect and the fact that a defaulting party has a meritorious defense must both be shown to the court to entitle him to the setting aside of the judgment. Cole v. Cole, 462 S.W.2d 172 (Mo.App.1970).

Not only did appellant not plead facts showing that he had a meritorious defense, but no evidence was presented to the trial court on the hearing on the motion to set aside the default judgment tending to show a viable defense. Paragraph 4 of the motion, set forth above, pleads no facts showing a meritorious defense, but is a conclusion only as to that essential element. In Rose v. Rose, 401 S.W.2d 946, 948[5, 6] (Mo.App.1966), the court said, “As to the question of meritorious defense, none is set out in the motion. The motion merely pleads the conclusion ‘that defendants have a meritorious defense to plaintiff’s cause of action.’ This is not sufficient. It is necessary that facts showing such meritorious defense must be pleaded in the motion.” See Gorzel v. Orlamander, 352 S.W.2d 675, 678[3] (Mo.1961). The Rose and Gorzel cases are controlling.

Furthermore, appellant neither presented to the trial court, nor does he present here, any issue as to the adequacy of respondent’s proof of her damages, which might have given him some relief under the cases of Sumpter v. J. E. Sieben Construction Company, 492 S.W.2d 150, 154[14—16] (Mo.App.1973); and Decker v. J. E. Sieben Construction Company, 492 S.W.2d 155, 157[1] (Mo.App.1973), in both of which cases there was presented the issue “plaintiff failed to prove damages of any amount.” As the record stands, there is no basis to interfere with the discretion of the trial court in refusing to set aside the default judgment. Farrell v. DeClue, 365 S.W.2d 68, 75[9] (Mo.App.1963); Hinson v. Hinson, 518 S.W.2d 330, 332[3—8] (Mo.App.1975). Under the state of this record and the cases cited above, the affirmance of the trial court’s order is inescapable.

The judgment is affirmed.