author: DOWD, Judge.

text:
    William MARTIN, Jr., Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38726.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 2, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.
    Application to Transfer Denied Oct. 11,1977.

      Springfield Baldwin, St. Louis, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Thomas C. Muldoon, Asst. Circuit Atty., St. Louis, for respondent.
   DOWD, Judge.

This is an appeal from an order and judgment of the Circuit Court of the City of St. Louis, entered October 20, 1976, denying after an evidentiary hearing movant-appel-lant’s motion to vacate sentences filed pursuant to Rule 27.26, V.A.M.R.

On December 5, 1974 movant-appellant, William Martin, Jr., was set for trial before a jury and a jury was selected when mov-ant withdrew his plea of not guilty and entered a plea of guilty to three counts of robbery in the first degree by means of a dangerous and deadly weapon and to one count of carrying a concealed weapon. He was sentenced to 13 years imprisonment on each of the three counts of robbery and to 5 years imprisonment on the concealed weapon case with all sentences to run concurrently.

On July 8, 1976 movant filed his motion to vacate his sentences wherein he alleged that the sentences should be vacated because: (1) he was “suffering from narcotic withdrawal symptoms” at the time he pleaded guilty to the charges, and that the trial court should have sua sponte held a competency hearing; (2) ineffective assistance of counsel in failing “to investigate and make available documents for petitioner’s defense.”

On July 16, 1976, the trial judge appointed attorney James Booth to represent the movant and on July 21,1976 set the motion for hearing on September 24, 1976.

The evidentiary hearing was held on October 1, and the trial court found that mov-ant’s guilty pleas were voluntarily made and denied relief. Movant appeals. We affirm.

At the hearing on October 1, 1976 there was extensive testimony heard with mov-ant, two of his witnesses, and attorney Thomas Prebil testifying. Mr. Prebil represented movant prior to and at the time movant pleaded guilty. The hearing was continued to October 8,1976. On that date movant attorney, Mr. Booth, filed a motion for continuance alleging that “movant was unaware that medical records maintained by the Methadone Maintenance Treatment Program fail to show that he was given Methadone until one week before he entered his plea of guilty.” He also alleged that two witnesses were confined in the Missouri State Penitentiary who were present in the city jail during movant’s confinement who would be able to testify they had seen movant administered methadone by a jail guard within one week of movant’s guilty pleas. The motion for continuance was denied by the court.

The court approved on that same day (October 8, 1976) movant’s pro se amendment to his motion alleging that movant received methadone while he was confined in the city jail from a guard within one week of the day he pleaded guilty and that he received morphine from employees of City Hospital one week before he pleaded guilty and that as a result of receiving methadone and morphine he was suffering from withdrawal symptoms.

Appellant contends on this appeal that the trial court erred in finding movant’s guilty pleas to be voluntary for four reasons: (1) The trial court erred in denying appellant’s motion for a continuance to present additional evidence of appellant’s drug usage and the trial court had a duty sua sponte to determine whether or not appellant was incompetent to enter guilty pleas as a result of his withdrawal symptoms. (2) The trial court erred in making the finding of fact at the 27.26 motion hearing that defendant received effective assistance of counsel at the guilty pleas hearing. The basis of this contention is that defendant’s attorney knew of his prior drug'use and had a duty to move for psychiatric or medical examination in order to determine his competency. (3) The trial court erred in its findings of fact “That the testimony of the movant and his witnesses that he was suffering from withdrawal symptoms from methadone at the time he pled guilty is incredible and is not believed by this court.” (4) The trial court erred in making his finding of fact “That the testimony of movant that he was suffering from withdrawal symptoms from morphine at the time he pled guilty is incredible and not believed by this court.”

The review of an appeal raised after the denial of a motion made under Rule 27.26 is limited to a determination of whether the findings, conclusions and the judgment of the trial court are clearly erroneous. Rule 27.26(j). These findings and conclusions are only erroneous if, after review of the entire record, the court is left with the definite and firm impression that a mistake has been made. Quinn v. State, 515 S.W.2d 603, 605 (Mo.App.1974). The pleas of guilty can only be withdrawn to correct manifest injustice and the burden is upon the appellant to prove this by a preponderance of evidence. State v. Jackson, 514 S.W.2d 638, 641 (Mo.App.1974). The record here does not convince us that such a mistake has been made, such an injustice occurred, or that the burden of proof has been met.

Defendant’s first point raises the question whether the trial court should have granted a continuance on October 8,1976 of the 27.26 hearing in order for the defendant to obtain further evidence. Extensive testimony had been heard on the first date of the. hearing on October 1, 1976. He contends that the evidence of the methadone center’s record, the methadone case worker, and the testimony of his attorney, would clearly establish that defendant was participating in the methadone program up to the time of his incarceration. Defendant asserts that this evidence placed the judge under a duty, sua sponte, to determine whether appellant as a result of possible withdrawal symptoms was competent to stand trial.

We do not believe the trial court abused its discretion in refusing to grant movant’s motion for a continuance made on October 8, 1976. The motion had already been extensively heard on October 1, 1976 and the hearing had been continued to October 8, 1976. Whether a continuance should be granted is largely within the discretion of the trial court and every intendment on appeal is in favor of the court’s ruling. State ex rel. State Highway Commission v. Herman, 546 S.W.2d 488[8] (Mo.App.1976). We find no abuse of discretion in the court’s denying the continuance in the middle of the hearing.

Given the evidence presented to the trial court at the hearing, it can be said that the weight of the evidence was so great against appellant that the testimony referred to in the motion for a continuance would not have altered the findings by the trial court. Even if this testimony had been permitted, it is unclear how appellant would have proven that his powers of understanding and judgment had been impaired by the use of drugs at the time he entered the guilty pleas. At the 27.26 hearing he stated that he was receiving methadone up to the day of the guilty pleas. He failed to explain how he could be suffering from withdrawal symptoms if he had received methadone the day of the guilty pleas hearing. In his motion for a continuance at the 27.26 hearing, appellant inconsistently alleged that he had been administered methadone by a guard sometime during the week prior to the hearing.

Additional evidence is found in the record that appellant actively aided his attorney in his defense. He gave attorney Prebil a list of names he desired to have testify in his behalf. There were also two witnesses of the guilty pleas hearing who testified for appellant at the 27.26 hearing. Both stated that they observed appellant perspiring and suffering withdrawal symptoms. However, neither witness brought this fact to the attention of the court at the guilty pleas hearing. It is also significant that neither appellant’s attorney nor the judge, who conducted both the guilty pleas hearing and the 27.26 hearing, observed any sign of withdrawal symptoms.

The key element, however, is appellant’s own response to the trial court’s questions. The judge at the guilty pleas hearing questioned appellant extensively in order to determine and establish the voluntariness of the plea. He was asked by the judge whether he was under the influence of narcotics and appellant’s response was “no”. At the 27.26 hearing movant stated he could not recall this question and answer.

The test for determining whether an accused is competent to stand trial or to plead is set out in Brown v. State, 485 S.W.2d 424, 427 (Mo.1972) which quoted from Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) as follows: The test “must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.”

The question of accused’s competence to know the nature of proceedings against him is one of fact for the trial court in a proceeding to vacate the sentence. Pulliam v. State, 480 S.W.2d 896, 904 (Mo.1972). In this case the judge had an opportunity to observe and interrogate appellant at both the guilty pleas hearing and the 27.26 hearing. Under the circumstances of this case the trial court’s action in denying the motion for a continuance and trial court’s failure to investigate appellant’s competency is not clearly erroneous. Appellant did not meet his burden of proving by a preponderance of the evidence that manifest injustice resulted from his guilty pleas.

Appellant’s second point on appeal is that the trial court erred in making the findings of fact “that Thomas Prebil, attorney for movant, adequately, effectively and competently represented movant.” Appellant contends that because of attorney’s knowledge of his participation in the methadone program, Mr. Prebil had a duty to move for a psychiatric or medical evaluation of mov-ant in order to determine appellant’s competency. Appellant also contends that Pre-bil’s failure to make appellant’s narcotic addiction known to the judge resulted in ineffective assistance of counsel.

According to the testimony given by attorney Prebil, he had no basis to believe that appellant was suffering from withdrawal symptoms at the time of the guilty pleas hearing. Before the hearing he had met with appellant six or eight times. He did not observe any change in his demeanor between the meetings and the hearing. The transcript also shows that appellant took an active part in the preparation of his defense.

“Once a guilty plea is entered, a determination of the adequacy of representation is immaterial except as it bears on the issues of voluntariness and understanding.” Baker v. State, 524 S.W.2d 144, 148 (Mo.App.1975). The only evidence in support of appellant’s contention that the plea was involuntary and made without understanding is his testimony and that of his two witnesses. The transcript of the guilty pleas hearing reveals that appellant was aware of both the charges and understood the range of punishment. Thus, there is adequate evidence that trial counsel did not have an honest basis for asserting appellant’s unfitness to proceed. The trial court’s finding of effective assistance of counsel in this regard was not erroneous.

Appellant’s third and fourth points can be combined and answered together. Appellant asserts that the trial court erred in his finding of fact: “That the testimony of the movant and his witnesses that he was suffering from withdrawal symptoms from methadone at the time he pled guilty is incredible and is not believed by this court.” Appellant also asserts that the trial court erred in his finding of fact that: “The court finds as a fact that the testimony of mov-ant that he was suffering from withdrawal symptoms from morphine at the time he pled guilty is incredible and not believed by this court.”

Here the issue is a matter of credibility and the credibility of appellant’s testimony, and the other testimony at his 27.26 hearing, is a matter for the trial court. As previously stated to withdraw his guilty pleas after sentencing, a defendant must show that manifest injustice has resulted from its acceptance. “The court as the trier of the facts was the judge of the credibility of a witness and was not required to believe [defendant] even if his evidence is uncontradicted upon a given issue.” Bonner v. State, 535 S.W.2d 289, 292 (Mo.App.1976). Thus as the hearing judge’s determination of credibility of witnesses is entitled to deference, appellant’s contentions are dismissed. Hicks v. State, 544 S.W.2d 79 (Mo.App.1976).

After a review of the pleas of guilty transcript and the 27.26 hearing transcript, we conclude that the findings, conclusions and judgment of the trial court are not clearly erroneous. Rule 27.26(j).

The judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.

      . The only evidence offered by defendant on October 8, was the testimony of Dwight Preston, Martin’s personal counselor from the St. Louis Comprehension Drug Abuse program. He brought records of the dates Martin received methadone. The records showed that June 18, 1974 was the last date that Martin received methadone.


source: Caselaw Access Project

author: FLANIGAN, Judge.

license: Public Domain

text:
    Lennie S. WATKINS, Sr., Respondent, v. John L. WATTLE, Appellant.
    No. 10504.
    Missouri Court of Appeals, Springfield District.
    Aug. 5, 1977.
    Motion for Rehearing or Transfer Denied Aug. 26, 1977.
    Application to Transfer Denied Oct. 11, 1977.

      Wendell W. Crow, Ford, Ford, Crow & Reynolds, Kennett, for appellant.
    James E. Reeves, Byron D. Luber, Ward & Reeves, Caruthersville, for respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

This is an action for the unlawful detain-er (Chapter 534 Y.A.M.S.) of 17.68 acres of agricultural land located in the city of Ca-ruthersville. Plaintiff is the owner of the land. Defendant, who was in actual possession of the land at the time of the institution of the action on April 18,1972, initially went into possession as a tenant under a written lease with the prior owner Wilks. The action, which originated in magistrate court, was tried in the circuit court without a jury. Although the trial involved additional issues, also resolved in plaintiff’s favor, only that portion of the judgment which awarded plaintiff possession is under attack on this appeal by defendant.

Prior to 1971 Wilks and defendant entered into two written leases. Lease 1 was for a term beginning January 1, 1964, and ending December 31,1974. Lease 2 was for a term beginning January 1, 1975, and “continuing for and during the natural life of lessee [defendant].”

On August 17, 1971, defendant executed and delivered to Wilks a quitclaim deed in which the grantee was Wilks. The deed recited that it was made “for the purpose of releasing all interests of [defendant] under [lease 1] and [lease 2].”

On August 16, 1971, Wilks executed and delivered to plaintiff a general warranty deed in which plaintiff was grantee. This deed was not recorded until August 17, 1971, approximately two hours after the quitclaim deed had been recorded. The land described in both deeds was the same land covered by the two leases.

Five days prior to the institution of this action the plaintiff served upon defendant a written demand for delivery of possession.

Defendant’s sole “point relied on” is that the trial court erred in refusing, on the basis of § 441.120, para. 1, V.A.M.S., to receive certain evidence offered by defendant. Plaintiff had objected to the proffered evidence on the basis of the statute. The court, in sustaining the objection, stated that it did so “in view of the statute.”

The rejected evidence was to the general effect that plaintiff had a conversation with defendant, prior to the execution of the quitclaim deed, in which plaintiff told defendant that if defendant would sign the quitclaim deed “you can still farm the land as long as I own it.” The terms of the oral letting were to be “the same as [defendant] had with Wilks prior to that time.” Under lease 1 and lease 2, defendant had agreed to pay Wilks, as lessor, “crop rent in the amount of ¼ of all cotton grown” on the land and “½ of all other crops.” The rent was to be paid at the time the crops were marketed.

The only witness for plaintiff was plaintiff himself. He testified that the land was wholly within the city liniits of Caruthers-ville. He also testified that the defendant was in possession and had refused the demand to vacate. On cross-examination plaintiff admitted that the land had always been used for agricultural purposes. He also admitted that, in the fall of 1971, he received “the crop rental.” This rental was from the cotton crop which defendant, who had remained in possession, harvested and marketed in November 1971.

The testimony concerning plaintiff’s receipt of the crop rental in November 1971 was received in evidence without objection and plaintiff’s (respondent’s) brief in this court understandably concedes its truthfulness.

The scope of appellate review of this action is governed by Rule 73.01 V.A.M.R. as construed in Murphy v. Garron, 536 S.W.2d 30 (Mo. banc 1976). This court holds that, under the admitted facts here, § 441.120, para. 1, could not be invoked by plaintiff and that the trial court’s reliance upon it constituted an erroneous application of the law. Murphy, supra, 536 S.W.2d at 32[1].

Section 441.120 reads:

“Oral evidence not to show renewal of lease or change — notice to quit.”

“1. In all cases where a tenant holds over after the termination of the time for which the premises were let or leased, under a written contract between the lessor or his agent and the tenant or his agent, in any suit for possession by the party entitled to possession of said premises against such tenant, after the termination of the time for which said premises were let or leased under written contract, oral evidence shall not be admissible that said lease or letting was renewed or extended, or that a new contract was entered into or substituted for the written contract, but the tenant’s right to continued possession or the landlord’s right to collect rent on said premises after the termination thereof, shall be established by contract in writing; provided, however, this section shall'not prevent a recovery of damages by either party for breach of the written contract.

“2. In all cases of an oral letting or leasing of real property for any agricultural year, tenancy at will or by sufferance, or for less than one year, if either party shall terminate said tenancy in accordance with the provisions of sections 441.050 and 441.-060, in any suit thereafter between said parties, oral testimony shall not be admissible to vary, alter or abrogate, the effect of the notice required and given under sections 441.050 and 441.060, but such notice may be varied, altered or abrogated only by written evidence thereof and bearing an actual date subsequent to the date of the notice provided for in said sections.”

Defendant argues that the trial court erred in invoking, at plaintiff’s instance, § 441.120, para. 1. Defendant asserts that the statute was inapplicable for three independent reasons. The reasons are: (a) Under the facts here there was no holding over by defendant “after the termination of the time for which the premises were let or leased”; (b) The statute applies only to oral agreements subsequently entered into by the same persons who were parties to the original written agreement; and (c) The statute may not be invoked by plaintiff because the petition had alleged that the wrongful possession commenced on January 1, 1972, (rather than on the date of the delivery of the quitclaim deed) and plaintiff had accepted rent consisting of his share of the cotton crop which defendant harvested in November 1971.

Reason (a), advanced by defendant without citation of authority, is unsound and no bar to the invocation of § 441.120, para. 1. In his argument in support of reason (a) defendant says: “The termination of the time for which the premises were let under [lease 1] was December 31, 1974, and the termination of the time for which the premises were let under [lease 2] was upon termination of natural life of the defendant. Consequently the conclusion is inescapable that the giving of the quitclaim deed was not a ‘termination’ of the lease as contemplated by the statute.”

Defendant’s argument, under reason (a) is, then, that there was no holding over by defendant “after the termination of the time for which said premises were let or leased under written contract.” This is so, says defendant, because, at the time of the institution of the action (April 18,1972) the time for which the premises were leased under lease 1 (until December 31, 1974) had not terminated and the time for which the premises were successively leased under lease 2 (defendant’s lifetime) had not terminated.

The same argument, in a somewhat different factual situation, was unsuccessfully made in Walther v. Anderson, 52 Tex.Civ. App. 360, 114 S.W. 414 (1908). There a Texas statute read in material part: “If any person shall willfully and without force hold over any land, tenements, or other real property after the termination of the time for which such lands, tenements or other real property was let to him . . . such person shall be guilty of forcible entry and detainer.”

The lessee, against whom an action for forcible entry and detainer had been brought, argued that the statute was limited to cases where the lease had expired by efflux of time and did not apply to a case where a lease had been terminated by the lessor for lessee’s violation of a covenant in the lease, which the lease itself authorized.

In rejecting this argument the court said, at pp. 417-418: “We do not think that the language ‘after the termination of the time for which such lands were let to him’ means anything more than after the termination of the time for which the tenant is entitled to possession under the terms of his lease contract. If the tenant holds over after such right has ceased, either by the expiration of the time named in the contract or by termination of the lease and of the tenant’s right of possession thereunder before the expiration of such time, under any contingency upon the occurrence of which it is expressly provided in the contract that the lease shall terminate and the landlord shall have the right to re-enter, such holding would be a ‘holding over after the termination of the time for which the premises were let to him.’ In the present case, the lease contract should be construed as a letting until December 15, 1910, unless sooner terminated by the landlord for violation by the tenant of any of the covenants of the lease. When such contingency occurred, it ‘terminated the time’ for which the premises were let as effectively as would the expiration of the time named as the limit of the lease. In the one case, as well as the other, the tenant’s right to the possession ceased, and the landlord’s right to re-enter began.”

The case at bar does not involve a termination of the lease by reason of lessee’s violation of a covenant and the lessor’s authorized termination of the lease as a result thereof. However, the time for which defendant was entitled to possession under lease 1 and under lease 2 had terminated by reason of the execution and delivery of the quitclaim deed to Wilks (plaintiff’s grantor) on August 17, 1971. The delivery of the quitclaim deed constituted a surrender of the lease and the efficacy of that surrender was not destroyed by the fact that the defendant remained in possession.

Defendant’s argument that the statute applies only to cases where a lease has terminated by the passing of time is without merit, under the ruling in Walther, supra, where the lessee’s rights have terminated by reason of his breach of covenant and the lessor’s enforcement of the breach. Where, by agreement of the parties, the interest of the lessee has come to an end by surrender or merger, that development “terminated the time” for which the premises were let as effectively as would the expiration of the time named as the limit of the lease. In the language of Walther, “in the one case, as well as the other, the tenant’s right to the possession ceased, and the landlord’s right to re-enter began.”

Acceptance by the landlord of a surrender by the tenant is a termination of the lease, although there are alternative methods, including the efflux of time constituting the term and, as in Walther, enforcement of a forfeiture. 49 Am.Jur.2d Landlord and Tenant § 990, p. 960. Although, in Walther, the lease itself contained provisions for forfeiture, the parties here always had the power to terminate the two leases by mutual agreement. 51C C.J.S. Landlord & Tenant § 90, p. 291.

Defendant’s reasons (b) and (c), in support of his contention that the statute is inapplicable, will be considered together. Although § 441.120 has been in effect since 1935, it has not played a role in any reported case factually similar to the one at bar. At least the briefs of counsel have furnished no such authority and the research of this court has uncovered none. Indeed the statute may be unique because research at some depth into laws of other jurisdictions has failed to disclose a foreign counterpart.

In Gideon-Anderson Lumber Co. v. Hayes, 348 Mo. 1085, 156 S.W.2d 898 (Mo.1941), the court discussed § 441.120 and held it to be constitutional. There an unlawful detainer action was brought against tenants who held over after the expiration of a written lease. The lease expired on December 31, 1940, and the tenants offered to prove an oral agreement, made in the first week of 1941, to let them continue as tenants during 1941.

The court considered the relationship of § 441.120, para. 1, to § 432.010 and § 432.050.

The court said: “The substance of [§ 441.120, para. 1] is that where a tenant holds over after the termination of his written lease and is sued for possession by the party entitled thereto, oral evidence of any renewal, extension, substituted or new lease to the tenant shall be inadmissible, and the tenant’s right to continued possession must be evidenced by a written contract. In other words, where the original lease was in writing the extending agreement also must be.” Hayes, at p. 899.

The court said that the alleged oral agreement made during the first week in January of 1941 was a valid enforceable contract so far as §§ 432.010 and 432.050 were concerned. But the court pointed out that the General Assembly in 1935, in enacting § 441.120 “formulated the public policy” reflected in the latter statute “and declared that in actions to dispossess tenants holding over after the termination of a written lease the right to continued possession should be established by contract in writing. It is true that under [§ 432.050] and [§ 432.010] an oral lease for not longer than one year is valid; and that [§ 441.120, para. 1] renders such leases invalid, or at least ineffectual, if the tenant be one holding over after the termination of a prior written lease. But the legislative reason for the distinction between the two is easily discernible. An oral lease for a year to a tenant not in possession puts the landowner at no disadvantage; but where the tenant is in possession and refuses to vacate on the ground that his written lease was extended or superceded by an oral contract, the situation is very different. We are warranted in concluding that the statute was enacted to correct a condition and to prevent frauds and perjury.” (Emphasis added) Hayes, at p. 900.

The court affirmed the judgment of the trial court in favor of the plaintiff and against the tenants holding over. The plaintiff’s right to possession was based upon his right as lessee under a subsequent lease from the common lessor, the landowner.

As used in the following discussion, “original lease” refers to the “written contract” specified in § 441.120, para. 1, and “followup agreement” refers to the type of agreement concerning which, under § 441.120 para. 1, oral evidence shall not be admissible (“that said leasing or letting was renewed or extended, or that a new contract was entered into or substituted for the written contract.”).

Plaintiff relies upon Hayes as authority against the validity of defendant’s reason (b). It should be noted, however, that Hayes is distinguishable from the case at bar in two respects: 1. In Hayes the parties to the original lease and the parties to the follow-up agreement were the same. In the case at bar the parties to the original lease were Wilks and defendant, but the parties to the follow-up agreement were plaintiff and defendant. 2. In Hayes, after the original lease expired and the holding over began, there was no acceptance of rent by the lessor under the follow-up agreement. Here plaintiff accepted rent in November 1971 from defendant.

It is true, as plaintiff points out, that in Hayes the plaintiff, as is the situation here, was not a party to the original lease and § 441.120, by its own language, applies “in any suit for possession by the party entitled to possession of the premises against such tenant” and is not limited to cases where the plaintiff is the lessor in the original agreement. This, of course, is consistent with § 534.260 which makes the remedy of unlawful detainer available to (among others) grantees of a lessor where the lessor himself was entitled to the remedy and the holding over preceded the grant. It is also consistent with § 534.270 which makes the remedy of unlawful detainer available to a grantee where the grant preceded the holding over.

Hayes is no authority against the validity of reason (b). In Hayes the parties to the original lease and the parties to the followup agreement were the same and it is defendant’s contention here that § 441.120, para. 1, is limited to that situation.

Defendant’s position may find support in the following arguments: 1. § 441.120, para. 1, is in derogation of the common law. Statutes of that ilk must be strictly construed. See the many cases collected in Missouri Digest, Vol. 26, Statutes, &wkey;239. 2. The general concept of § 441.-120, para. 1, is that when two people have demonstrated that it is their personal preference to reduce a land lease to writing, the same people will be deemed to have retained that preference with respect to any follow-up agreement so that any oral follow-up agreement between themselves will not be recognized. By their initial conduct the parties have shown their aversion to oral agreements, at least with each other. 3. In discussing the parties to the followup agreement, § 441.120, para. 1, refers to “the tenant” and “the landlord’s” and the only tenant and landlord previously mentioned in the statute were the parties to the original lease. 4. The proviso in § 441.120, para. 1, uses the language “either party” as if only two parties were contemplated. The same language, “either party,” is used in § 441.120, para. 2, not here immediately involved, and the latter portion of the statute applies “in any suit thereafter between said parties.” 5. Oral leases are not per se obnoxious to the law. Some of them are valid. The statute would have been no bar to an oral agreement between plaintiff and a stranger to the original lease. Why should the mere fact that defendant had a prior written agreement (actually two— lease 1 and lease 2) with someone else be a bar to an oral agreement between plaintiff and defendant?

Such arguments in support of reason (b) do not appear to be totally lacking in persuasiveness and, of course, if reason (b) is sound the trial court erred in applying the statute.

However, this court need not and does not rule the validity of reason (b) because, as advanced by reason (c), the plaintiff here, by his conduct with defendant after the surrender of the original lease, is in no position to invoke § 441.120, para. 1.

The giving of the quitclaim deed by defendant to Wilks was a surrender. “[WJhere a tenant before the expiration of his term surrenders to the landlord . the latter is entitled to the growing crops upon the land and no right or title therein remains in the tenant.” 51C C.J.S. Landlord and Tenant § 349, p. 886. Defendant, however, remained in possession after the surrender, harvested the crop, and divided it “as crop rental” with plaintiff.

The mere remaining in possession, standing alone, did not create a tenancy. Millhouse v. Drainage Dist. No. 48 of Dunklin County, 304 S.W.2d 54, 58[11] (Mo.App. 1957). “[N]o character of tenancy at will (including that of year to year) can arise without some form of consent, either express, inferred or implied, on the part of the landlord. The mere holding over by the tenant does not of and in itself create a new tenancy. It only gives the landlord the option to renew the lease. No new term is created until the owner, in some manner, recognizes the tenancy as existing. And a short delay in which the landlord does nothing is not necessarily a recognition of a new tenancy. Thus the bare fact that a tenant whose lease has expired has continued in possession for a short time pending a treaty for a further lease does not ipso facto create a new tenancy. There must further be present something which shows or indicates the assent of the landlord to the new tenancy.” Millhouse, supra, 304 S.W.2d at 59.

“When a tenant continues in possession after the termination of his lease, the landlord has an election either to evict him, treat him as a trespasser it is said, or to hold him as a tenant. ... In order for a tenancy to result from the holding over, the landlord must exercise his election, indicating in some way his consent to the tenancy. Usually, the consent will be evidenced by the acceptance of rent. . . ” (Emphasis added) 1 American Law of Property, § 3.33, pp. 237-238. Anno. 64 A.L.R. 309.

“Where a tenant enters into possession of farm lands under an oral agreement for an indefinite term, his tenancy at will becomes a tenancy from year to year which may be terminated only by giving written notice to quit at least sixty days before the end of the term, § 441.050, unless by special agreement notice is dispensed with. § 441.070.” McNeill v. McNeill, 456 S.W.2d 800, 804[1-3] (Mo.App.1970).

The land here involved was used for agricultural purposes. Although located within the city of Caruthersville, it was farm land within the rule stated in the preceding paragraph. Hammond v. Iliad Amusement Co., 234 S.W. 371, 372[1] (Mo.App.1921); Kroeger v. Bohrer, 116 Mo.App. 208, 91 S.W. 159 (1905).

Section 534.030 defines three distinct factual situations, or classes, which constitute “unlawful detainer.” The first class is the “hold-over tenant” class, the second (added in 1939) is the “hold-over employee” class, and the third is the “intruder class” (wrongful possession, without force, by disseisin). The distinction between the hold-over tenant and the intruder classes is discussed in Ray v. Blackman, 120 Mo.App. 497, 97 S.W. 212 (1906), Barber v. Todd, 128 S.W.2d 290 (Mo.App.1939), and Bess v. Griffin, 234 S.W.2d 978 (Mo.App.1950). The relationship of landlord and tenant is unnecessary in actions under the “intruder class,” but a written demand for possession prior to the institution of the action is necessary in such actions. In actions involving the hold-over tenant class, no demand for possession is necessary but a landlord-tenant relationship must have existed.

In this case the plaintiff did not proceed under the “hold-over tenant” provisions of § 534.030. He proceeded under the “intruder” provision and gave written notice. The petition, making no allegation of the landlord-tenant relationship, alleged a disseisin “on or after January 1, 1972” which, of course, was after plaintiff had collected the crop rental from defendant. Section 441.120, para. 1, applies only in hold-over tenant situations.

“It has been so often said by appellate courts that the action for unlawful detainer is a special statutory action, summary in its nature, and in derogation of the common law, and must therefore be pursued strictly in accordance with the statutes, that the citation of authorities so holding would be superfluous.” Y.W.G.A. v. LaPresto, 169 S.W.2d 78, 79[1] (Mo.App.1943).

May plaintiff, who brought his action under the “intruder” section, successfully invoke § 441.120, para. 1, which is limited to the “hold-over tenant” situation? If the question is answered in the negative, defendant must prevail on this appeal. If reason (b) is valid, defendant must prevail on this appeal. But those questions need not be, and are not, ruled upon because here the plaintiff, by accepting the rent, deprived himself of the benefit of § 441.120, para. 1, if, indeed, he was ever entitled to it. This is so for the reasons expressed in the following paragraph.

If plaintiff is right in his contention that § 441.120, para. 1, applies in the case at bar, the plaintiff was the “landlord” in the follow-up agreement. The statute, referring to the landlord in the follow-up agreement, says that “the landlord’s right to collect rent on said premises after the termination thereof shall be established by contract in writing.” Plaintiff here did collect the rent, in defiance of the statute. He now seeks to avail himself of the benefit of the statute after he has evaded its burden. This he cannot do. Stafford v. McDonnell, 359 Mo. 925, 224 S.W.2d 951, 955[6] (1949). See also: Brooks v. Cooksey, 427 S.W.2d 498, 504[10] (Mo.1968); Jones v. Linder, 247 S.W.2d 817, 819[3-6] (Mo.1952); Willey v. Talkington, 312 S.W.2d 77, 79, 80[12] (Mo.1958); Pointer v. Ward, 429 S.W.2d 269, 272[2, 3] (Mo.1968); Emery v. Brown Shoe Co., 287 S.W.2d 761[2, 3] (Mo.1956).

It follows that § 441.120, para. 1, should have played no role in this case and the trial court erred in sustaining plaintiff’s objection, based upon the statute, to the proffered evidence.

There is no necessity to reach the question of the precise nature of defendant’s tenancy under plaintiff. Even if the proffered evidence had been admitted, but not believed, under the evidence which was admitted, without objection, and which is conceded to be true by plaintiff, plaintiff was not entitled to possession. If the new tenancy was one from year to year, the necessary steps to terminate it were not taken. If, which need not be decided, there is any vitality in that portion of the proffered evidence which would indicate that the tenancy would terminate upon plaintiff’s sale of the land, it is of no moment because plaintiff still owns it.

Defendant on this appeal has not requested an outright reversal but a reversal and remand.

That portion of the judgment awarding plaintiff possession is reversed and the cause remanded for further proceedings consistent with the views expressed herein.

HOGAN, J., concurs.

BILLINGS, C. J., disqualified.

      . The quitclaim deed is dated August 13, 1971, cution to be August 17, 1971. but the acknowledgment shows its date of exe-

      . § 432.060. “No leases, . . . in . . . any . . . lands . . . shall at any time hereafter be . . . surrendered, unless it be by deed or note in writing signed by the party so . . . surrendering the same . . . or by operation of law.”

      . “It seems that a conveyance by way of surrender, like most other forms of conveyance at the present time, should operate to transfer the title, irrespective of the grantor’s retention of possession. If the tenant, after executing and delivering a deed of surrender, still occupies the premises by permission of the surrenderee he is, it is true, a tenant of the latter, but his tenancy is not, it seems, under the surrendered lease but is under a new demise.” 2 Tiffany, Landlord and Tenant, § 189, p. 1319.

      .“For most all practical purposes, however, it is entirely immaterial whether, upon a conveyance of the particular estate to the reversioner, the consequent destruction of the estate be regarded as a result of the fact that the conveyance was intended to take effect as a surrender, or the fact that, both estates being vested in the same person, the particular estate is merged.” 2 Tiffany, Landlord and Tenant, § 187, p. 1308.

      . “No action shall be brought . . . upon any contract made for the sale of lands . or any lease thereof, for a longer time than one year, or upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing . .

      . “All leases ... in, to or out of any . . lands . . . made ... by parol, and not put in writing and signed by the parties so making or creating the same, or their agents lawfully authorized by writing, shall have the force and effect of leases or estates at will only

      . See Haumueller v. Ackermann, 150 Mo.App. 141, 130 S.W. 91 (1910); Fisher v. Payton, 219 S.W.2d 293, 295[3] (Mo.App. 1949).

      . The right to collect rent under the original lease is, of course, a different matter, protected by the proviso in § 441.120, para. 1.


author: PER CURIAM.

text:
    James Joseph OTTO, Plaintiff-Appellant, v. FARMERS INSURANCE COMPANY, Defendant-Respondent.
    No. KCD 28240.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 29, 1977.
    Application to Transfer Denied Oct. 11, 1977.

      William Brandecker, Jr., Ronald E. Smull, Brandecker & Smull, Columbia, for plaintiff-appellant.
    Hamp Ford, G. Bernard Esser, III, Knight & Ford, Columbia, for defendant-respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   PER CURIAM.

Plaintiff (hereinafter referred to as insured), under the uninsured motorist coverage of his automobile insurance policy, brought suit against defendant (hereinafter referred to as insurer) for bodily injuries sustained as the result of a vehicular collision with an uninsured motorist. The trial court sustained insurer’s motion for summary judgment, and insured has appealed.

Rule 74.04(c) provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” On appeal, appellate courts are obliged to review the record in the light most favorable to the party against whom summary judgment was rendered and determine whether a genuine issue of fact exists. Wood v. James B. Nutter & Co., 416 S.W.2d 635, 636 (Mo.1967); O’Leary v. McCarty, 492 S.W.2d 124, 129 (Mo.App.1973); and Weber v. Les Petite Academies, Inc., 490 S.W.2d 278, 280 (Mo.App.1973).

The various pleadings, depositions, admissions and affidavits on file form a reservoir of facts which must be explored in order to determine whether summary judgment in favor of insurer properly lies in this case. As gleaned therefrom, the following facts stand undisputed. Insurer issued to insured a policy of automobile insurance (same was attached to insured’s petition as an exhibit and incorporated therein by reference) with an effective date of February 12, 1971 and an expiration date of August 12, 1971. Therein, insured was the “named insured” and the “described automobile” was a 1967 Austin Healey. Liability, uninsured motorist, medical, comprehensive and collision coverage were afforded by the policy. Insured paid insurer the required premium for all coverages. On or about April 23, 1971, insured sold his 1967 Austin Healey and did not acquire a replacement automobile during the remainder of the policy period. However, insured purchased a Yamaha 250 motorcycle and, on May 7, 1971, in Columbia, Missouri, while operating said motorcycle, was involved in collision with a 1965 Pontiac operated by Wilbur Dewey, Jr. The motorcycle never became an insured motor vehicle under the policy.

Insured, absent insurer’s written consent to do so, brought suit against Dewey for damages, and, on June 15, 1972, obtained a judgment against Dewey in the amount of $17,500.00 for personal injuries. Copies of the summons and petition regarding the suit against Dewey were never forwarded to insurer by insured. Believing Dewey to be an uninsured motorist, insured, within a few days after the accident, and prior to filing suit against Dewey, inquired of and was told by the agent from whom he purchased the policy of insurance that any injuries sustained in the collision with Dewey were not within the purview of the uninsured motorist coverage afforded by the policy because insured was riding and operating a motorcycle at the time. According to the agent, he informed insured, after consultation with insurer, that no coverage existed under the uninsured motorist provision of the policy. In the petition filed and served on insurer, insured pleaded that Dewey was an uninsured motorist; in its answer, insurer pleaded that it was “without knowledge or information sufficient to form a belief as to the truth” of said allegation.

Notwithstanding the undisputed facts heretofore set forth, insured contends on appeal that insurer was not entitled to summary judgment as a matter of law. As the trial court gave no hint as to the reason or basis for granting summary judgment in favor of insurer, insured on appeal addresses the purported impropriety of the trial court’s doing so in the context of the four grounds advanced by insurer at the trial level. Insurer on appeal seeks to validate the summary judgment rendered in its favor on the same four grounds. The four grounds relied upon by insurer at the trial level, all of which are inversely restated as points relied upon by insured in his brief, relate to separate policy provisions, each of which will be set forth and disposed of seriately.

(POINT ONE)

Part II of said policy, designated “COVERAGE C/ Benefits for Bodily Injury Caused by Uninsured Motorists”, reads, in part, as follows: “To pay all sums which the owner or operator of an uninsured motor vehicle would be legally responsible to pay as damages to the insured because of bodily injury sustained by the insured, caused by accident, and arising out of the ownership, maintenance or use of said uninsured motor vehicle; provided that: (1) insurance under Coverage A [“Liability Insurance”] of this policy must be in effect at the time of such accident . . . .” Insurer argues that since it stands undisputed that insured sold his 1967 Austin Healey (the “described automobile” in said policy) prior to the accident with the purported uninsured motorist and never acquired another automobile during the policy period, no “liability insurance” was or could be in effect at the time said accident occurred. Insurer summarily concludes that insured’s sale of the 1967 Austin Healey, prior to the accident, coupled with the fact that insured did not acquire a replacement automobile, terminated the liability coverage. Hence, no “insurance under Coverage A” of said policy was “in effect at the time of such accident . . . .” Although insured concedes that liability coverage under the policy did not extend to his Yamaha motorcycle, he vigorously contends that liability coverage thereunder was still in effect even though inapplicable to the accident in question.

Part I of said policy, designated “COVERAGES A and B/ Liability Insurance”, reads, in part, as follows: “To pay all damages the insured becomes legally obligated to pay because of: (A) bodily injury to any person, and/or (B) damage to property arising out of the ownership, maintenance or use, including loading or unloading, of the described automobile or a non-owned automobile.” By the terms of the policy, liability coverage was not limited to insured’s 1967 Austin Healey, the “described automobile”, as it also extended to a “non-owned automobile” as defined in said policy. The proviso, supra, relied upon by ipsurer is cast in terms of liability coverage being “in effect at the time of the accident” not in terms of being applicable to the accident. Even though insured no longer owned the “described automobile”, or a “newly acquired automobile” as defined in the policy, liability coverage, albeit limited in scope by certain prescribed policy provisions, was nevertheless still in effect at the time of the accident with the uninsured motorist in view of coverage extended to qualified “non-owned automobiles”. State Farm Mut. Automobile Ins. Co. v. Western Casualty & Surety Co., 477 S.W.2d 421 (Mo. banc 1972). See also Equity Mutual Insurance Company v. Riley, 475 S.W.2d 416 (Mo.App.1971). In Freeport Motor Casualty Co. v. Tharp, 338 Ill.App. 593, 88 N.E.2d 499, 500-01 (1949), where an insurer attempted to disclaim liability coverage because the insured had previously sold and no longer owned an automobile at the time he was involved in an accident while driving an automobile owned by a third party, the court bluntly held as follows: “We find no precedent for a conclusion that the coverage afforded by the policy was terminated by the sale of the automobile by the insured . . . [and] . . . [w]e find nothing in the language of the policy which terminates the coverage . . .”. The policy proviso immediately heretofore discussed afforded no basis to support the summary judgment.

(POINT TWO)

Part II of said policy (“COVERAGE C— Benefits for Bodily Injury Caused by Uninsured Motorists”) contains the following exclusion: “This policy does not apply under Part II . (3) to bodily injury to an insured while occupying an automobile or 2 wheel motor vehicle (other than an insured motor vehicle) owned by a named insured or any relative resident in the same household, or through being struck by such vehicles . .” The uncontroverted facts disclose beyond peradventure that insured was clearly within this policy exclusion as he was riding a motorcycle which he owned which was not an insured motor vehicle at the time of the accident with the alleged uninsured motorist. Insured seeks to obviate application of the above exclusion on the ground that it impermissibly limited his uninsured motorist coverage in contravention of the public policy reflected by Section 379.203, RSMo Supp. 1973. Insurer, understandably, contends that the policy exclusion is valid and controlling and does not offend public policy.

Insurer’s contention has certain initial momentum by reason of Barton v. American Family Mutual Insurance Co., 485 S.W.2d 628 (Mo.App.1972). In Barton, under facts very similar to those at hand, this court held that a substantially similar policy exclusion was valid and enforceable and denied recovery to the insured therein under his uninsured motorist coverage. A two-pronged attack was made upon the policy exclusion in Barton: (1) that it never effectively became a part of the policy in question; and (2) that it was ambiguous. The validity of the exclusionary clause visa-vis Section 379.203, supra, and the public policy which prompted its enactment was not in issue. For that reason, Barton v. American Family Mutual Insurance Co., supra, is not deemed controlling and the validity of the exclusionary clause in the instant case becomes an apical issue in light of Section 379.203, supra, and its underlying public policy.

Section 379.203, supra, so far as here pertinent, provides that “[n]o automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits for bodily injury or death set forth in section 303.030, RSMo, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom . . . .” The underlying public policy which prompted enactment of this statute was to give persons insured by such coverage, when injured by an uninsured motorist, protection parallel to that which they would have had if they had been injured in an accident caused by a motor vehicle covered by the minimum liability requirements of the financial responsibility law. Brake v. MFA Mutual Insurance Co., 525 S.W.2d 109, 112 (Mo.App.1975); and Webb v. State Farm Mutual Automobile Insurance Co., 479 S.W.2d 148, 151 (Mo.App.1972).

Section 379.203, supra, becomes a part of every policy of insurance to which it is applicable to the same effect as if it were written out in full in the policy itself. Ward v. Allstate Insurance Co., 514 S.W.2d 576, 578 (Mo. banc 1974). An insurer may limit the coverage afforded an insured under a policy only so long as doing so is not violative of public policy or interdicted by statute. MFA Mutual Insurance Co. v. Dunlap, 525 S.W.2d 766, 769 (Mo.App.1975); and Webb v. State Farm Mutual Automobile Insurance Co., supra, 479 S.W.2d at 150.

The conceptual nature of uninsured motorist insurance must be distinguished from other types of insurance, for example automobile liability insurance. The former is akin to accident insurance (albeit restricted to a limited type of accident) as it compensates for a loss suffered by an insured, as opposed to the latter which indemnifies an insured against liability for losses suffered by third parties. See 44 C.J.S. Insurance § 19, p. 480 (1945). Thus, uninsured motorist insurance should not be confused as inuring to a particular vehicle as in the case of automobile liability insurance. To the contrary, uninsured motorist insurance inures to an individual insured for bodily injury inflicted by the tortious act of an uninsured motorist.

Exclusionary clauses comparable to that presently under consideration have been a prolific source of litigation in other jurisdictions. Statutes in a number of states mandating uninsured motorist coverage are so dissimilar to Section 379.203, supra, that cases construing like exclusionary clauses within their frameworks are of no authoritative consequence. See, for example, Lowery v. State Farm Mutual Automobile Insurance Co., 285 So.2d 767 (Miss.1973), holding a parallel exclusionary clause void as against public policy as the uninsured motorist statute in Mississippi included within its definition of “insured” the language “while in a motor vehicle or otherwise”, and Harrison v. California State Automobile Ass’n Inter-Insurance Bureau, 56 Cal. App.3d 657, 128 Cal.Rptr. 514 (1976), holding a parallel exclusionary clause valid and enforceable as the uninsured motorist statute in California expressly provided for its inclusion in policies issued pursuant to said statute.

This court’s independent research discloses that apparently sixteen other jurisdictions having uninsured motorist statutes similar to Section 379.203, supra, when faced with the public policy argument presently tendered by the insured, have divided into two numerically disparate camps regarding the validity or invalidity of analogous exclusionary clauses. Those upholding such exclusionary clauses in the face of a public policy argument fundamentally do so on the theory that they serve a legitimate business purpose. The following cases are representative of this view: Rodriquez v. Maryland Indemnity Insurance Co., 24 Ariz. App. 392, 539 P.2d 196 (1975); and Holcomb v. Farmers Insurance Exchange, 254 Ark. 514, 495 S.W.2d 155 (1973). Those striking down such exclusionary clauses as nugatory and unenforceable in the face of a public policy argument fundamentally do so on the theory that they are in derogation of the respective statutes and violative of the pervasive public policy which they were enacted to promote. The following cases are representative of this view: State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974); Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971); Doxtater v. State Farm Mutual Automobile Insurance Co., 8 Ill.App.3d 547, 290 N.E.2d 284 (1972); State Farm Mutual Automobile Insurance Co. v. Robertson, 156 Ind.App. 149, 295 N.E.2d 626 (1973); Forrester v. State Farm Mutual Automobile Insurance Co., 213 Kan. 442, 517 P.2d 173 (1973); Thomas v. Nelson, 295 So.2d 847 (La.App.1974); Nygaard v. State Farm Mutual Automobile Insurance Co., 301 Minn. 10, 221 N.W.2d 151 (1974); State Farm Mutual Automobile Insurance Co. v. Hinkel, 87 Nev. 478, 488 P.2d 1151 (1971); Beek v. Ohio Casualty Insurance Co., 135 N.J.Super. 1, 342 A.2d 547 (1975); Chavez v. State Farm Mutual Automobile Insurance Co., 87 N.M. 327, 533 P.2d 100 (1975); Cothern v. Emcasco Insurance Co., 555 P.2d 1037 (Okl.1976); Bankes v. State Farm Mutual Automobile Insurance Co., 216 Pa.Super.Ct. 162, 264 A.2d 197 (1970); Westchester Fire Insurance Co. v. Tucker, 512 S.W.2d 679 (Tex.1974); and Touchette v. Northwestern Mutual Insurance Co., 80 Wash.2d 327, 494 P.2d 479 (banc 1972). Thus, cases striking down the validity of such exclusionary clauses comprise a far larger jurisdictional enclave than do those upholding the validity of such exclusionary clauses.

The policy exclusion in question is, on its face, repugnant to the mandate of Section 379.203, supra. The statute commands that uninsured motorist coverage be part and parcel of every automobile liability policy issued “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.” Statutory authority for limiting uninsured motorist coverage, as attempted by the policy exclusion under consideration, is nowhere to be found in Section 379.203, supra. There can be no doubt that the policy exclusion curtails uninsured motorist coverage without regard to the fact that the insured might otherwise be “legally entitled to recover damages” from the owner or operator of an uninsured motor vehicle. Thus, the coverage ostensibly commanded by and statutorily envisioned in Section 379.203, supra, is effectively whittled away. When the instant exclusionary clause is balanced with the conceptual nature of uninsured motorist coverage, the statutory language employed in Section 379.203, supra, and the underlying public policy sought to be furthered thereby, this court is convinced that the majority view, supra, is well taken and merits subscription. Simply put, it is impossible to reconcile the exclusionary clause with Section 379.203, supra, and the avowed public policy sought to be advanced thereby. This court, by judicial fiat, is unwilling to elevate the “legitimate business purposes” theory relied upon in a distinct minority of jurisdictions to the status of a declared public policy when Section 379.203, supra, gives no hint or suggestion that the legislature intended to do so. Exaltation of the “legitimate business purposes” theory to the status of a public policy declaration would be at war with the presently recognized public policy pervading Section 379.-203, supra. The policy exclusion immediately heretofore discussed is void and unenforceable and afforded no basis to support the summary judgment.

(POINT THREE)

Part II of said policy (“Coverage C — Benefits for Bodily Injury Caused by Uninsured Motorists”) also contains the following exclusion: “This policy does not apply under Part II: (1) to damages with respect to which any insured, his legal representative or any person entitled to payment under this coverage shall, without the written consent of the Company, . prosecute to judgment any action against any person - or organization who may be legally liable therefor . . . .” The facts clearly disclose that insured did not obtain insurer’s written consent before prosecuting his action against Dewey (the alleged uninsured motorist) to a final judgment. Insured contends, and correctly so, that the exclusionary clause just mentioned, notwithstanding the undisputed nature of the attendant facts, did not entitle insurer to a summary judgment. Insured’s contention is unassailably confirmed by State ex rel. State Farm Mutual Automobile Insurance Co. v. Craig, 364 S.W.2d 343, 346 (Mo.App.1963), involving, as here, an identical exclusion, i. e., judgment prohibition, wherein the court held that “the ‘consent’ exclusion as a bar to suit must fall . it would be against public policy to permit a prohibition against resort to the courts for remedy without the consent of the person ultimately liable.” The same conclusion was voiced in Kisling v. MFA Mutual Insurance Co., 399 S.W.2d 245, 249 (Mo.App.1966): “We have no doubt but that the judgment prohibition is invalid and unenforceable in this jurisdiction.” See generally Annotation, 25 A.L.R.3d 1275, 1283, § 3(b), (1969) for a compilation of cases similarly holding that comparable policy exclusions, i. e., judgment prohibitions, are void and unenforceable because contrary to public policy.

(POINT FOUR)

Finally, Part II of said policy (“COVERAGE G — Benefits for Bodily Injury Caused by Uninsured Motorists”) contains the following under the caption “Special Provisions”: “Notice of Legal Action: If, before the Company makes payment of loss hereunder, the insured or his representative shall institute any legal action for bodily injury against any other person or organization legally responsible, for the use of a motor vehicle involved in the accident, a copy of the summons and complaint or other process served in connection with such legal action shall be forwarded immediately to the Company by the insured or his legal representative.” The facts foreclose any argument that insured failed to comply with this notice provision with reference to the action he successfully prosecuted against Dewey (the alleged uninsured motorist). An identical notice provision was held valid in Roberts v. Jersey Insurance Company of New York, 457 S.W.2d 244 (Mo.App.1970) and an insured’s noncompliance therewith was held to relieve an insurer of liability with respect to uninsured motorist coverage. Nevertheless, it has been held in at least one other jurisdiction that compliance with an identical notice provision is subject to being waived by an insurer. Crumley v. Travelers Indemnity Co., 225 Tenn. 667, 475 S.W.2d 654, 658-59 (1972).

It is appropriate at this point to draw on certain principles applicable to the general field of liability insurance. The following principle recognized in 45 C.J.S. Insurance § 1062, p. 1287 (1946) is apposite: “Ordinarily, insurer under a policy of liability insurance is precluded from resisting recovery on the ground of departure from policy provisions respecting notice and the forwarding of papers where it has denied liability on some other ground.” More particularly, cases from other jurisdictions recognize that notice provisions pertaining to automobile liability coverage may be waived by an insurer when it denies liability coverage on some ground other than lack of notice. Dixie Auto Insurance Co. v. Goudy, 238 Ark. 432, 382 S.W.2d 380, 382-83 (1964); Hartford Accident and Indemnity Co. v. Armstrong, 125 Ind.App. 606, 127 N.E.2d 347, 351 (banc 1955); and Washington v. National Service Fire Insurance Co., 252 S.C. 635, 168 S.E.2d 90, 92-93 (1969).

Insured contends that the record in the instant case poses a genuine issue as to a material fact, namely, whether a binding denial of liability under the uninsured motorist coverage was made by insurer so as to constitute a waiver on its part of insured’s noncompliance with the notice provision of the policy. No cogent or persuasive reason springs to mind which would preclude application of the above-mentioned general principle applicable to waiver of policy notice provisions pertaining to automobile liability coverage. For reasons stated, noncompliance with notice provision heretofore set forth did not per se justify the summary judgment entered in favor of insurer.

Having concluded that none of the issues joined on appeal warranted rendition of the summary judgment in favor of insurer, and absent discovery of any other basis for its sustention, this court holds that the summary judgment should be and hereby is reversed.

Judgment reversed and cause remanded for further proceedings not inconsistent with this opinion.

      . The pragmatic frailty of the “legitimate business purposes” theory is perspicaciously pointed out by A. Widiss in A Guide to Uninsured Motorist Coverage, 28-30, § 2.9 (1969 & Supp. 1976).