author: KELLY, Judge.

text:
    Francis THURMAN, Appellant, v. STATE of Missouri, Respondent.
    No. 35210.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 19, 1974.
    Motion for Rehearing or Transfer Denied April 8, 1974.
    Motion for Transfer Granted by Supreme Court June 24, 1974.
    Case Retransferred to Court of Appeals Dec. 16, 1974.
    Opinion Readopted Jan. 24, 1975.

      James C. Jones, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., G. Michael O’Neal, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard A. Heidenry, Mark A. Brown, St. Louis, for respondent.
   KELLY, Judge.

Appellant appeals from the action of the trial court denying his motion to vacate, set aside or correct his conviction and sentence to life imprisonment upon a plea of guilty to the offense of murder in the first degree entered on November 16, 1936, in Division No. 11 of the Circuit Court of the City of St. Louis. Rules 27.25 and 27.26 V.A.M.R.

The grounds for appellant’s motion were (a) that the plea of guilty was involuntarily entered because of threats by the Assistant Circuit Attorney and pressure applied upon him by his court appointed counsel and his father to enter a plea of guilty to the charge of murder in the first degree to avoid the death penalty; (b) that at the time he entered the plea of guilty his court appointed counsel was not present nor did the court appoint another attorney to represent him during the plea and sentencing; (c) that the court did not advise him of his constitutional rights before or after the entry of the plea of guilty and failed to ascertain whether his guilty plea was voluntary; (d) that the plea of guilty was equivocal because he was mentally incompetent to enter such a plea and the court knew of his possible insanity defense and mental incompetence; and (e) that the record of sentencing reveals that he did not understand the nature of the charge nor the consequences of his guilty plea.

After appellant filed his motion on March 17, 1972, the trial court appointed counsel to represent appellant and on October 17, 1972, an evidentiary hearing was held with appellant present and assisted by appointed counsel. The appellant offered himself as a witness in his own behalf, introduced into evidence the report of the neuro-psychiatrist appointed by the court in the proceedings in 1936 prior to appellant’s plea of guilty, and the entire court file in Cause No. 238, February Term, 1936, the murder first degree indictment file, and then rested. The State produced as witnesses the judge before whom the plea of guilty had been entered on November 16, 1936 and Mr. William F. Sindel, Esq., the counsel appointed by the court to represent the appellant in that case.

After the cause was heard on the evidence adduced, the trial court continued the cause to obtain the court records and on November 27, 1972, entered its order. The order of the trial court found: (1) that the plea of guilty entered by the petitioner was voluntary; (2) that petitioner understood the nature of the charge and the consequences thereof, and (3) that at the time of sentencing and the acceptance of the plea no attorney was present. The trial court thereupon ordered that “the Motion be sustained in part as set-forth in paragraph 8(b) of his petition and that the sentence be vacated.” Petitioner was ordered returned to court for a proper sentencing with counsel present. On December 1, 1972, appellant filed his motion for new trial and on February 16th, 1973, appellant, with counsel, appeared before the judge who presided at the evidentiary hearing and, after allocution, was sentenced to life imprisonment in accordance with the “plea of guilty heretofore entered on the 16th day of November, 1936, to the charge of Murder in the First Degree.”

On appeal the appellant presents two points as bases for reversal of the trial court’s order. First, that the trial court erred in failing to find that his plea of guilty was invalid because, under the evidence, it was not “voluntarily and intelligibly” made with a full understanding of his legal rights, and Second, having found that he was without the presence of counsel at the time of his plea of guilty and sentencing, the trial court further erred in holding that his plea of guilty was nevertheless valid and the appellant was entitled only to resentencing.

After sentence the court may set aside the judgment and permit the movant to withdraw his plea of guilty only if such is necessary to correct manifest injustice. Rule 27.25, V.A.M.R. Rule 27.26(i) V.A. M.R. requires that if the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was illegal or otherwise subject to collateral attack, or that there was such a denial or infringement of the constitutional rights of the prisoner as to render the judgment subject to collateral attack, the court shall vacate and set aside the judgment and discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. Upon appeal our review is “limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.” Rule 27.26(j) V.A.M.R.

The evidence in this case is that defendant was indicted on the charge of murder in the first degree allegedly perpetrated on one William Cullen on the 2nd day of March, 1936. Appellant was arrested approximately one week after the offense and confessed to the offense. According to his confession he killed Mr. Cullen, a St. Louis police officer, while appellant was attempting to “stick-up” the police officer who was seated in an automobile. At arraignment a plea of not guilty was entered for appellant and Mr. William Sindel, Esq., a member of the bar of the Circuit Court of the City of St. Louis, Missouri, was appointed by the court to represent him. Thereafter, Mr. Sindel consulted with the appellant on several occasions, and during these conversations appellant admitted the offense to Mr. Sindel and Mr. Sindel’s investigation produced no evidence of any defenses available to the appellant. At the suggestion of appellant’s father, Mr. Sindel obtained a neuro-psychiatric examination of the defendant by one Dr. Edmund F. Sassin, who submitted a report to the court and to Mr. Sindel that his examination revealed no evidence of mental disease and in his opinion the appellant at the time of the homicide was “well able to differentiate between right and wrong and to control his actions.” Sometime during the criminal proceedings, but prior to the entry of the guilty plea, appellant’s father retained two attorneys — Mr. Brady and Mr. Straub — to represent the appellant. Appellant advised Mr. Sindel that counsel had been retained and Mr. Sindel thereupon considered his appointment as counsel for the appellant terminated and did nothing further with respect to the case. Appellant, about two weeks prior to November 16, 1936, was interviewed by Mr. Straub in the City Jail. He advised Mr. Straub that he had shot the police officer during an attempted robbery. Mr. Sindel, Mr. Straub and his father encouraged appellant to plead guilty to the charge in the hope that he would thereby avoid the death penalty which they feared might be imposed by a jury if it found him guilty after a jury trial. Mr. Sindel was concerned by extensive news coverage of the event.

Appellant also testified that while he was confined in the City Jail the Assistant Circuit Attorney handling the prosecution of the charge came over to the jail and advised him that he, the Assistant Circuit Attorney, was going to see to it that appellant got the death penalty. During this discussion only appellant and the Assistant Circuit Attorney were present.

He pleaded guilty because his father begged him to plead guilty and both Mr. Sindel and Mr. Straub told him to plead guilty.

On November 16, 1936, appellant was brought into court; neither Mr. Sindel nor Mr. Straub was there. He did not know Mr. Brady and had never seen him, but he had no counsel at this appearance in court. The judge asked him how he pleaded and he told him “guilty.” The judge did not advise him of his legal rights to a jury trial, the right to have witnesses in his own behalf, the presumption of innocence, nor of the State’s burden to prove him guilty beyond a reasonable doubt. The judge did not inquire whether his plea was influenced by promises or threats, advise him of the range of punishment, nor give him an opportunity to admit or deny any facts in support of the charge. The Assistant Circuit Attorney did not state the evidence the State had to prove the charge against him. Appellant testified that while he knew what he was charged with and that he could be sentenced to the death penalty, he did not know what other punishment could be assessed. He did not know what punishment he would receive upon entry of the guilty plea. He did know, however, that by pleading guilty a judgment would be entered against him and sentence would be imposed. Immediately after appellant announced that he was entering a plea of guilty, the judge “passed sentence on me,” and he was removed from the courtroom. The entire plea process took “just a few minutes.”

The judge before whom the plea was en- „ tered testified, understandably, that he had no independent recollection of this appellant nor the entry of the plea. He testified to the usual practice he followed in accepting a plea “back in those days” and stated that he never accepted a plea of guilty from any defendant unless his counsel was present in court at the time. He admitted that he did not make a lengthy inquiry of defendants entering guilty pleas at that time — “because we were not required to then.” He always had the official court reporter present in court and recording a guilty plea; however, these proceedings were not transcribed. His court reporter at that time was a Mr. Mills who is now an invalid living in Florida. The court reporter’s notes would reflect whether counsel was present. These notes, if still in existence, would be in a storeroom in the Civil Courts Building, but: “If you could find it over there, you’re a good one.”

During the evidentiary hearing the trial judge made the following inquiry of the appellant without objection:

“Q. On the 2nd day of March, you killed a person by the name of William Cullen ?
A. Yes, sir.
Q. That was a policeman ?
A. Yes, sir.
Q. Were you arrested on the scene? A. No.
Q. How much time elapsed before you were taken into custody ?
A. About a week.
Q. Did the police question you about this matter ?
A. Yes.
Q. Did you make an admission to them at that time ?
A. Yes.
Q. What was Officer Cullen doing at the time you took his life ?
A. He was in an automobile and I tried to stick him up.”

Defendant, who was 19 at the time he entered his plea of guilty, admitted that he ,had previously entered a plea of guilty to a .charge of burglary and larceny; when, was not developed in the evidence, but it was prior to November 16, 1936.

Sometime in June, 1966, appellant wrote to the clerk of the circuit court requesting copies of the indictment, sentence and judgment in his case in which he “was sentenced to life imprisonment for killing a police officer” so that he could prepare a petition to the Governor for Executive Clemency. This letter was filed in the office of the clerk of the circuit court for criminal causes on June 27, 1966. On July 25, 1966, the clerk of the circuit court for criminal causes, by letter, advised appellant that he could petition the court to order the preparation of the records he had requested and upon receipt of the order the documents would be furnished. On July 26, 1966, appellant wrote to the clerk of the circuit court for criminal causes advising him what he wanted, including: “What attorney represented me . . . ” On July 28, 1966, appellant, apparently having received the clerk’s letter of the 25th in the interim, responded by forwarding a “motion to obtain files and records” to the clerk. This motion was filed on July 29, 1966. It requested copies of the indictment, every order touching the case, the record made of his every appearance in court, the record made at the time his plea of guilty was entered, and of the sentence and judgment. In this motion appellant stated that he had been advised that his guilty plea was illegal and violative of Article One, Sec. 10 and 18(a) of the Constitution of the State of Missouri, V.A.M.S., and Amendments VI and XIV of the Constitution of the United States. He further stated that he was without means to pay for these records and requested that the clerk of the court be ordered to furnish them without charge.

Thereafter, on August 8, 1966, the motion was sustained and the clerk of the court was ordered to forward copies of the records requested.

On July 28, 1968, appellant filed a motion to vacate sentence and judgment under Supreme Court Rule 27.26 which was sworn to before a Notary Public on July 24, 1968. In filing his motion appellant used a form furnished by the clerk of the court, pursuant to Rule 27.26(c). Paragraph 8 of the form requires that the petitioner “state concisely all the grounds known to you for vacating, setting aside or correcting your conviction and sentence.” In paragraph 8 appellant, under oath, alleged seven different grounds for vacating, setting aside or correcting his conviction and sentence. He did not allege as a grounds under paragraph 8 the absence of counsel at the time he entered his plea of guilty. Paragraph 9 of the form used by appellant requires that the movant “State concisely and in the same order the facts which support each of the grounds set out in (8), and the names and addresses of the witnesses or other evidence upon which you intend to rely to prove such facts.” Nowhere in paragraph 9 is there any reference to absence of counsel. However, in paragraph 15 of the form where he is asked whether he was represented by an attorney at any time during the course of certain stages of the criminal proceedings he states that he did not have an attorney at his arraignment and plea BUT that he did have counsel at his sentencing

On September 11, 1968, Mr. John C. Shepherd, an attorney, wrote to the appellant advising him that he had been appointed by the court to represent appellant in the 27.26 proceedings and in which he called attention to the fact that the appellant had failed to list the names and addresses of any of the witnesses whom he intended to call to prove the facts alleged as required by paragraph 9 of the motion. Mr. Shepherd enclosed in the letter three additional copies of the forms for the appellant and the only change in this motion was the addition of the name of a witness, one William Thurman, 636 East Red Bud Avenue, St. Louis, Missouri, appellant’s father. In this form, sworn to before a Notary Public, appellant repeated his prior assertion that he had no counsel at arraignment or plea, but he did have counsel at sentencing.

A pre-trial conference was held on April 9, 1969, and the motion was set for an evi-dentiary hearing on May 23, 1969. On this latter date the appellant appeared with his court-appointed counsel. Mr. Shepherd stated to the court that “I have investigated same (the post-conviction motion) and have discussed it with Mr. Thurman, and he now has a statement he would like to make to the Court with reference to his motion at this time.” Appellant thereupon took the stand and was interrogated by his court-appointed counsel without being sworn. When asked what action he would like for the court to take with respect to the motion he stated: “A. Well, I would like to have it set aside, because I am coming up for parole, but I don’t think I could have my parole heard if I have this court procedure pending.” The court inquired when his parole hearing was set, and appellant replied: “In October.” He advised the court that he wanted to withdraw his motion at that time with leave to reinstate it if his parole was denied. Mr. Shepherd then stated that he wanted the record to show that appellant did feel he had a good chance for favorable action by the parole board and as a consequence did not want the motion pending and appellant “has suggested that I ask it be dismissed without prejudice with the right to refile it in the event it became necessary.” Appellant then signed a minute memorandum wherein he requested dismissal of his motion under Rule 27.26 without prejudice.- The court granted appellant leave to dismiss his motion without prejudice.

On or about November 18, 1971, appellant filed an application for a writ of mandamus in the Supreme Court of this State, against Hon. Daniel T. Tillman, Circuit Judge of the City of St. Louis, Missouri, seeking an order upon that judge to furnish appellant with a transcript of the taking of the guilty plea and sentencing, which, according to the application for the writ, he had requested on October 28, 1971. The necessity for this transcript was to aid him in the preparation of a postconviction proceeding under Rule 27.26. On November 26, 1971, appellant wrote to Judge Tillman enclosing a copy of the application for Writ of Mandamus and requesting that the judge or the clerk of the court advise him whether the transcript taken at the time of the sentencing and guilty plea was available or if it was impossible to obtain a copy of the proceedings. On December 17, 1971, Judge Tillman responded to the missive of November 26, 1971, advising the appellant that he had talked with the Clerk of the Supreme Court and had been informed that the application for writ of mandamus had been denied on December 13, 1971, and there was therefore no action required by him.

On February 9, 1972, appellant wrote to the clerk of the circuit court for criminal causes enclosing an original and two copies of a Motion to Vacate under Rule 27.26 V.A.M.R. In this motion, again on the appropriate form, for the first time, appellant set out in detail as one of the grounds for vacating of the conviction that his court-appointed counsel was not present when he entered his plea of guilty and the court did not appoint another attorney to represent him during the plea and sentencing. Also, in paragraph IS, he, for the first time, states that he never had an attorney at the sentencing.

This motion was filed in the Circuit Court on March 17, 1972, and is the basis for this appeal.

The evidence is that appellant did have assistance of counsel. He was interviewed by court-appointed counsel a number of times, his sanity was inquired into and the court-appointed psychiatrist found him sane and responsible for his acts. He was charged with murder in the first degree — a felony murder — and the only punishment legally possible upon conviction of that offense was life imprisonment or death. §§ 3982, 3984, RSMo 1929. The lengthy inquiries now conducted by courts in determining that a guilty plea is intelligently and voluntarily made were not in vogue at that time, nor were they required. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), was not then the law and it is not applied retroactively. Crego v. State, 447 S.W.2d 550, 553 (Mo. 1967). Rule 25.04 V.A.M.R. was not in force. A judge was, nonetheless, not to receive a guilty plea unless he was convinced that it was voluntarily and intelligently proffered. State v. Stephens, 71 Mo. 535, 536 (1880). It was the custom then to rely on the competence of the counsel, court-appointed or employed, and his ethical standards. The court itself did not assume as active a part in the plea entry stage as it is required to do today.

While we recognize that the guilt or innocence of a movant in a 27.26 or 27.-25 motion is irrelevant, State v. Reese, 481 S.W.2d 497, 500 [4] (Mo. banc, 1972), we are here faced with an appellant who waited some 33 years before he commenced a proceeding for postconviction review. Then, to gain an advantage in his application for parole, he, with advice of able counsel, obtained leave of court to dismiss his motion without prejudice. Obviously he was unsuccessful in his bid for parole. It was not until March 27, 1972, that he again sought review of his guilty plea.

The Supreme Court of this State in Flood v. State, 476 S.W.2d 529, 534 [4] (Mo.1972) recognizing the problem of stale motions filed pursuant to Rules 27.26 and 27.25 V.A.M.R., and the toll that time takes on the search for truth therein, said: “We note that the motion in this case was filed long after the death of the judge who accepted the pleas and more than 12 years after the sentences imposed. A motion for leave to withdraw a plea of guilty after sentence should he filed within a reasonable length of time, taking into consideration the nature of the allegations of the motion . . . Whether a motion is timely is a question which must be determined on a case by case basis.” (Emphasis supplied).

And, at p. 529, the court said: “While we have not yet imposed an ironclad time limitation on withdrawal of pleas of guilty, we think the time lapse in filing a motion is a relevant factor to be considered in determining the merits.”

By the time appellant sought relief under Rules 27.25 and 27.26 V.A.M.R. in March, 1972, the judge who presided at the time the guilty plea was entered had retired from the Bench. Mr. Straub, one of the hired counsel, was dead and Mr. Brady, the other, was physically incapable of appearing at the evidentiary hearing. The court reporter who recorded the proceedings was an invalid living in the State of Florida, and the likelihood of finding his notes and having them transcribed was concededly impossible. In a Rule 27.25 and 27.26 proceeding the burden of proving the grounds for relief are on the movant, and he must establish them by the preponderance of the evidence. Rule 27.26(f) V.A. M.R. After sentence, a court may, according to Rule 27.25, set aside the judgment and permit the defendant to withdraw his plea of guilty only if such is necessary in order to correct manifest injustice. The trial court has the right to reject testimony on behalf of the movant, even where there was no contrary evidence offered by the State at the hearing. Shoemake v. State, 462 S.W.2d 772, 775 [4] (Mo. banc 1971) ; Skaggs v. State, 476 S.W.2d 524, 527 [3] (Mo.1972).

Appellant’s contention that he was denied the assistance of counsel in that his court-appointed counsel was not present at the time he entered his plea of guilty and was sentenced is the crucial issue in this case. His evidence in this respect is equivocal. On the one hand he testified at the evidentiary hearing that neither court-appointed counsel nor Mr. Straub was in attendance when he entered his plea of guilty and was sentenced. However, in the court file in this proceeding was a prior motion under oath seeking the same relief appellant now seeks wherein appellant stated that he did have counsel at his sentencing. He did state that he did not have counsel at his “arraignment and plea.” As we construe this assertion, at the time appellant was arraigned on the indictment he did not have counsel, for it was at that time that the court entered a plea of not guilty for the appellant and appointed Mr. Sindel to represent him. If he had counsel at sentencing, he must have, of necessity, had counsel at the time he entered his plea of guilty, for, as he testified at the eviden-tiary hearing:

“Q. Tell the Court what Judge Kirk-wood said to you when you came out there, what anybody said ?
A. He said, ‘How do you plead ?’
Q. And what happened then ?
A. I said, ‘Guilty.’
Q. Then what happened ?
A. He passed sentence on me.
Q. And what happened then ?
A. Took me back out of the courtroom.
Q. How long were you in the courtroom that day?
A. Just a few minutes.”

If the entire proceedings took “just a few minutes” and appellant had counsel at his sentencing as he stated under oath in his motion, it is inconceivable that he did not have counsel present when he entered his plea of guilty.

As previously stated our review is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j) V.A.M.R. “Clearly erroneous” as that term is used in Rule 27.26 (j) V.A.M. R., means that although there was evidence to support the trial court’s finding, the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Crosswhite v. State, 426 S.W.2d 67, 70 (Mo.1968); Clayton v. United States, 302 F.2d 30, 35 (8th Cir. 1962). Applying this guage to the trial court’s finding that the appellant did not have an attorney present at the time he entered his plea of guilty, we conclude that the evidence supports a finding that the appellant did not have court-appointed counsel present when he entered his plea of guilty. However, after an exhaustive review of the record and the post-conviction review file of which the trial court had judicial notice we find that the trial court’s finding that no counsel was present was clearly erroneous. To so find the trial court would have to have before it credible evidence that Mr. Straub, the hired counsel, was not present and in view of the entire record we conclude that this finding was not supported and we are therefore left with a definite and firm conviction that a mistake in this respect has been committed.

However, with respect to the finding of the trial court that appellant’s guilty plea was voluntary and made with an understanding of the nature of the charge and the consequences thereof we find no error; nor do we find any “manifest injustice,” as that term is used in Rule 27.25 V.A.M.R., which would require the trial court to set aside the judgment of conviction and permit the defendant to withdraw his plea of guilty entered on November 16, 1936.

We affirm.

DOWD, C. J., and SIMEONE, J., concur.

      . Paragraph 8(b) of appellant’s motion was that at the time he entered his guilty plea on November 16, 1936, his court-appointed counsel was not present at any time and the court did not appoint another attorney to represent him during the plea and sentencing.

      . The seven grounds alleged in paragraph 8 of the motion were: 1) his plea of guilty was entered as a result of coercion by way of fear and intimidation, 2) he was held for 11 days without a warrant and 56 days before presentment to the committing magistrate, 3) he was denied the right to a preliminary hearing, 4) he could not enter a plea with full knowledge of the consequences due to mental defect, 5) the court erred in accepting his plea of guilty before his competency had been ruled on at a hearing conducted for that purpose, 6) the indictment was faulty due to the fact that it rested largely on the confession made by the petitioner while gravely wounded and under the influence of drugs, and 7) he was not granted allocution at the time of pleading and sentencing.

      . Paragraph 16 of the form is as follows:
      “Were you represented by an attorney at any time during the course of
      (a) your preliminary hearing? ‘No preliminary’
      (b) your arraignment and plea? ‘NO’
      (c) your trial, if any?
      (d) your sentencing? ‘YES’
      (e) your appeal, if any, from the judgment of conviction or the imposition of sentence? ‘NO’ ”

      . See also: Skaggs v. State, 476 S.W.2d 624, 628 [7] (Mo.1972) [9½ years after guilty plea] ; Donaldson v. State, 477 S.W.2d 84, 88 [7] (Mo.1971) [22 years after guilty plea].


source: Caselaw Access Project

author: PRITCHARD, Chief Judge.

license: Public Domain

text:
    Charles Frederick TROUT, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 27285.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.
    Rehearing Denied June 2, 1975.

      William Erdrich, Asst. Public Defender, St. Joseph, for appellant.
    John C. Danforth, Atty. Gen., Scott A. Raisher, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRIT-CHARD, C. J., and TURNAGE, J.
   PRITCHARD, Chief Judge.

In March, 1970, appellant was convicted by the verdict of a jury of the crime of assault with intent to kill with malice aforethought. The jury was unable to agree upon punishment and thereafter, the court sentenced him to life imprisonment in the Department of Corrections.

In this appeal from the denial of appellant’s second amended motion to vacate and set aside the judgment and sentence of the court, filed February 4, 1974, the first point is, “The court erred in finding that the appellant was rendered effective assistance of counsel.” That assignment is of course wholly insufficient under Rule 84.04(d), V.A.M.R., in that it fails to “state briefly, and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.” The fact that appellant is represented on this appeal by the public defender does not relieve that person of the obligation to comply with the rules.

In examining appellant’s argument portion of the brief, and adverting to the state’s brief, it appears that appellant’s complaint of ineffective assistance of counsel is that his trial counsel did not pursue his appeal which was dismissed in the September Session 1971 by the Supreme Court of Missouri because of appellant’s failure timely to file a transcript of the record of trial proceedings. Although, because of the inadequacy of briefing, this appeal is subject to dismissal as in any other case, the appeal will be retained and the merits of the question determined.

Paragraphs 1, in part, and 2 of the second amended motion allege that appellant was denied effective assistance of counsel for the reasons that he failed to perfect an appeal and that he failed to inform appellant of the need for certain necessary documents in order to perfect an appeal, and through counsel’s inaction appellant was caused to lose the right of appeal.

Appellant testified that his parents hired Mr. Lewis Randolph as his attorney; that he was tried to a jury, found guilty and was sentenced to life imprisonment. Appellant did not remember whether an appeal was filed or that his attorney advised him of the right of appeal. He did not correspond with his attorney concerning the appeal, but he did receive a letter from the attorney general that the appeal was dismissed. Appellant knew that Mr. Randolph was talking to his father about the cost of a transcript. Appellant did remember that after he was sentenced, his attorney “jumped up immediately and said he was going to appeal it right then.” Appellant was relying pretty much on his father and mother to deal with his attorney.

Appellant’s father, Mr. Dale Trout, hired and paid Mr. Randolph for the defense of the case. Mr. Trout was with Mr. Randolph when the notice of appeal was filed in the clerk’s office, and Mr. Trout paid the filing fee therefor. Mr. Randolph told him that he would have to have the transcript made “before we could go ahead with a new trial,” and the costs of the transcript as being between $500 and $600 was mentioned. Mr. Trout talked with the court reporter who told him he wanted a down payment to go ahead with the transcript. “Q I see. Did you at that time reach any agreement with him or give him any indication for payment of the transcript? A No; to be honest, I didn’t. I told him when you get the transcript we will guarantee you the money.” Mr. Trout did not again hear from the court reporter. After that conversation, he talked with Mr. Randolph in his office, “and I told him about this condition. He said, in so many words, he told me the man is going on vacation, probably wants some vacation money. I said when we get the transcript I will guarantee the money.” He never did tell Mr. Randolph to “drop the appeal,” but Mr. Trout did know the appeal had not gone through, but did not know why.

On cross-examination, Mr. Trout acknowledged that Mr. Randolph had probably performed his duties in a proper manner through trial. The money which Mr. Trout paid Mr. Randolph was for his services through the filing of the motion for new trial, which was done. Mr. Randolph was never paid to go beyond that. The reporter told Mr. Trout over the phone that he had done approximately $75.00 worth of work on the transcript, “and before he went any further he wanted $250.00 down. I didn’t give him too much satisfaction on the phone. I felt that when the transcript was completed that we would pay, and I would guarantee him the money. There was no provisions made in any way in escrow or anything. Nobody said anything; that was just word of mouth, in other words.” On examination by the court, Mr. Trout testified that the court reporter said to him that he “had already done $75.00 worth of work on it and he hated to go ahead and make up this transcript and receive nothing.” It was Mr. Trout’s understanding that the reporter would do no more work until he paid the $250.00. Mr. Randolph did not tell Mr. Trout to give him $250.00 to guarantee the transcript.

Mr. Randolph testified that the Trouts employed him to defend appellant on a fee basis that would extend through the filing of a motion for new trial, arguing it, and the filing of a notice of appeal. He ordered a transcript and discussed its cost with the Trouts, and that the reporter wanted his cost in advance. He told them, that if they could furnish the money for the appeal, including the attorney fees and the transcript cost, he would handle it or they could get another attorney or they could try to proceed as a pauper. Mr. Randolph’s way of operating was not to pay for transcripts unless clients brought the money to his office with directions that he pay the reporter. As for payment for his legal services for the appeal, Mr. Randolph thought it would have been around $1,000.00 to $1,200.00 for preparation and appearance. The Trouts vacillated over a period of time as to whether appellant should appeal, and finally, it was Mr. Randolph’s understanding that they did not wish to pursue it, they having had numerous conferences about the matter with appellant himself.

It should be noted here that there never was any indication that appellant was indigent, either before or after the trial was had. Appellant says that Mr. Randolph never did confer directly with him concerning his right of appeal and the matter of perfecting the same by the timely filing of a transcript of the trial record. What the record does show is that appellant left the conferences with his counsel after trial to his parents. It was they with whom counsel dealt with respect to paying for a transcript. It was not left solely to counsel as to whether an appeal would be taken as was the distinguishable fact from the situation here, in Jones v. State, 445 S.W.2d 311, 314[2] (Mo.1969), where the trial court found the fact on conflicting evidence. Clearly counsel here was employed only to do specified tasks: defend appeal from preliminary hearing, through the trial of his case; and through the filing of a motion for new trial and the filing of a notice of appeal thereafter. For these services he was paid. It is not incumbent upon counsel to take further steps upon his own, absent authority therefor and absent an agreement for the payment of costs and expenses of an appeal, and for further attorney fees. Counsel did not abandon appellant. The record shows that he was willing to pursue the appeal if the expenses and fees were paid. He was guilty of no neglect of appellant’s interests as to be within the pronouncement of ineffective assistance of counsel of Brown v. State, 512 S.W.2d 404, 408[9, 10] (Mo.App.1974). Under all of the evidence, the findings of the trial court that appellant was not denied effective assistance of counsel in the matter of his appeal is not clearly erroneous. Rule 27.26 (j).

Appellant next claims that the trial court erred in denying his request for a copy of his original trial transcript for his use in presenting certain other allegations of his second amended motion to vacate the judgment and sentence.

Aside from the issue of counsel’s alleged failure to perfect an appeal, paragraph 1 of appellant’s second amended motion alleges that he was denied effective assistance of counsel for the reason that his counsel failed to file proper motions to suppress statements of appellant and the identification of appellant. During the hearing of this motion counsel for the state first indicated that he did not see how the court could make an intelligent ruling on a 27.26 motion without the transcript of the trial proceedings. The court then stated that if it was indicated that a transcript was needed, it would order it before decision. The matter came up again at the close of appellant’s evidence when his counsel stated to the court that it was all the further he could proceed without the assistance of a transcript. The court inquired as to what was expected to be proved with the transcript, and counsel answered that it had to do with motions that might have been made, such as a motion to suppress the statements of and the identification of the appellant. The court stated that the record would show the pre-trial motions to suppress. Counsel acknowledged that to be so if they were filed normally, but that it was not unknown that these motions are made early during the trial and determined perhaps out of the hearing- of the jury.

As noted, the allegations of the second amended motion to vacate the judgment and sentence are that appellant was denied effective assistance of counsel because he failed to file proper motions to suppress statements of petitioner and of the identification of petitioner. No facts to support the allegations are alleged. For instance, the nature of the statements are not set forth; it is not alleged whether they were confessions or admissions or why they would not be admissible at trial (e. g., duress, coercion, failure to advise appellant of his rights under the Miranda rule). As to identification, it is not alleged as to why any identification would not be admissible. Was it because of an impermissible lineup situation, or some unduly suggestive procedure used? The allegations as made are bare conclusions and are insufficient to state any grounds for relief, and for this reason alone the trial court’s finding that there was no need for a transcript is not clearly erroneous. See State v. Miner, 498 S.W.2d 814, 815[1] (Mo.App.1973); State v. Moore, 435 S.W. 2d 8, 16[14, 15] (Mo.banc 1968), “[T]he motion to vacate must plead a factual basis by which the charge can be proved, including the source and nature of the facts rather than mere conclusions. (Citing cases.)”; State v. Hale, 400 S.W.2d 42 (Mo.1966). Procedurely, in addition to the requirement that facts and not conclusions be pleaded, the better practice would be to set forth in the motion that a partial or full transcript of the trial proceedings would be needed to support factual allegations, thus giving the trial court advance notice and time to have it prepared. See State v. Keeble, 427 S.W.2d 404, 408 [5, 6] (Mo. 1968); and McNamara v. State, 502 S.W. 2d 306, 309 (Mo.1973).

A further reason that the judgment is not clearly erroneous is that appellant’s trial counsel was present and testified at this hearing. He could have been, but was not, asked as to whether he filed the motions to suppress, and the matter could have been fully explored. If it had been indicated, the motions could have been amended, or could have been treated as having been amended, to conform with the proof.

Paragraph 3 of the second motion sets forth, “Petitioner was denied his right to counsel at a critical stage of the proceedings.” This too is a conclusion and an insufficient statement of any claim to relief.

Paragraph 4 of the same motion alleges, “Petitioner was mentally incompetent to defend against the charges filed against him at the time of the trial.” In this respect, appellant testified that he remembered being examined at Fulton State Hospital before the trial, and “Q And you recall the doctors being here to testify right where you are sitting now to the effect that they found you were competent within the meaning of the law? A Yes and no. * * * Q You are telling this Court that because you were nervous then you were not competent to understand what was going on? A Well, on certain questions you asked me, you know, I would get confused, get confused and all nervous.” Clearly appellant had been examined for mental defect prior to trial. He does not demonstrate in any respect how a transcript would aid him in establishing any mental incompetency to stand trial. Again, the trial court was not advised as to the need of a transcript to prove this allegation prior to hearing; and again appellant’s counsel was available to explore the matter. Appellant has failed to sustain his burden of proof on his allegation, either on its merits or the need for a transcript.

The judgment is affirmed.

All concur.


author: SHANGLER, Judge.

text:
    The TRAVELERS INDEMNITY COMPANY, a corporation, Plaintiff-Appellant, v. Bob BEATY and Missouri State Highway Commission, Defendants-Respondents.
    No. KCD 26957.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.

      Bob J. Keeter, Schroff, Keeter & Glass, Inc., Springfield, for plaintiff-appellant.
    Robert L. Hyder, John H. Gladden, State Highway Commission of Missouri, Jefferson City, for defendants-respondents.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   SHANGLER, Judge.

The Travelers Indemnity Company brought an action for a declaration of rights and liabilities under a contract of automobile insurance issued to defendant Bob Beaty and under which the defendant Missouri State Highway Commission claims as a judgment creditor of the insured. The trial court found coverage and Travelers appeals.

As originally issued, the policy was written through the Ogle Insurance Agency and insured two Ford trucks. Thereafter, Belva Beaty, wife of the insured, at his instance made application to the Ogle Agency for additional coverage by endorsement to the original policy for a 1959 Mack Tractor and a 1967 Freuhauf Trailer. The application for the additional coverage shows execution by Belva Beaty on August 1, 1970. The endorsement which issued from Travelers in due course also recited August 1, 1970 as the effective date of coverage.

On July 31,1970, the Mack-Freuhauf tandem collided with a bridge owned by the Missouri State Highway Commission. The Commission sued Beaty for recovery of damages to the bridge. Travelers provided Beaty a defense under a reservation of rights. A jury returned a verdict for the State Highway Commission for $27,000.

At the trial, the proof made by Ms. Beaty was that, notwithstanding the August 1, 1970 recital of the application, she signed the instrument undated and in blank on July 30, 1970 and then, under that date, paid the premium by her check and received from Ogle in his own hand a receipt for payment. As she left the Ogle office, Ms. Beaty asked whether the tractor and trailer were then insured, and he responded affirmatively.

Travelers contended then, as now, that the effective date of coverage for the tandem, both by application and endorsement, was August 1, 1970, and since the casualty occurred on July 31, 1970, there was no liability. Travelers has contended also that Ogle was not shown to be agent of the insurer and thus was without authority to bind Travelers.

On behalf of Travelers, Ogle testified that he was an insurance broker representing four different companies. Ms. Beaty, who was among his clients, came to his office on August 1,1970 at about 9:30 a. m. and signed the application which at that time was complete except for some information he already had on file. She then paid him the premium' cost for which he gave her a receipt. Ogle testified that he had authority to bind Travelers, and regularly did bind that insurer. Ogle conceded that he was informed of the collision with the bridge on the night of its occurrence, July 31, 1970.

The bound receipt book of the Ogle Agency was shown in evidence. The receipt entries were not sequential. Ogle had acknowledged payment of the Beaty premium by receipt number 144 dated July 30, 1970. The receipt numbered 143 immediately preceding however, was dated July 31, 1970. Ogle offered as explanation that he probably dated the receipt to Ms. Beaty to coincide with the date of her payment check. An examination of the exhibit discloses that some thirty other receipts were not dated sequentially.

It was also in evidence that the Beatys did not use their checks in strict sequence either. Thus, check number 1279, by which Ms. Beaty paid the insurance premium was dated July 30, 1970, whereas their check number 1278 was dated August 1, 1970 and number 1280 bore the date August 3, 1970. The explanation given was that the Beatys shared one check book and, occasionally, Mr. Beaty extracted some of them for his own use. These exhibits also shows that checks number 1275 and 1276, both dated July 30, 1970, cleared for payment on August 6, 1970, whereas check number 1279 written also on July 30,1970, in payment of the premium did not clear until August 15, 1970.

The dispute focuses upon the legal effect to be given the application signed by Ms. Beaty. The printed form, which calls for the entry of data common for such purposes, bears the rubric: THE TRAVELERS INDEMNITY COMPANY. The last two segments on the reverse side of the application form consist of these printed legends and entries:

IMPORTANT — TO BE SIGNED IF APPLICATION FOR COVERAGE IN THE TRAVELERS INDEMNITY COMPANY
I hereby declare that I personally have read this application and I declare that the statements made are true. I understand that this is not a binder of insurance.
Personal Signature of Applicant x Belva Beaty Date 8/1/70
How long have you known the applicant ? Has coverage been bound ?
Gary L. Ogle (Producer)
Order Secured 8/1 19
3 yrs
S Yes □ No. Same (Agent)
70 at 9:30 A.M.

As we have shown, it was the testimony of Ms. Beaty that she had signed the form in blank with the expectation that Ogle would complete it and that her only handwriting on the application was her signature. There is no dispute that except for the signature of Belva Beaty, all of the entries in these last two segments of the application form — including the dates— were made by Ogle in his hand.

The declaration of the trial court that the coverage of the tractor-trailer commenced on July 30, 1970 was based upon express findings that Ogle had authority to bind Travelers and that he did so as of that date. Travelers contends that such a judgment proceeds upon either a reformation of the endorsement or upon an oral contract of insurance, theories not pleaded, and therefore, is coram non judice and void.

While a judgment cannot be sustained on a theory not pleaded [Northwest Missouri State Fair, Inc. v. Linville, 448 S.W.2d 274, 278[6, 7] (Mo.App.1969)], issues tried by consent of the parties are treated as though they had been raised by the pleadings, and are validly concluded by the judgment. Schwane v. Kroger Co., 480 S.W.2d 113, 117[4] (Mo.App.1972); Rule 55.-33(b), V.A.M.R. The predicate for declaratory relief is a justiciable controversy between the parties as to their respective rights and duties which admits of specific relief by way of a judgment conclusive in character and determinative of the issues involved. Glick v. Allstate Insurance Company, 435 S.W.2d 17, 20[1] (Mo.App.1968). The controversy presented by the Travelers’ petition was whether, in the face of the August 1, 1970 effective date of the endorsement, the insurer owed Beaty a defense against a claim from a casualty which occurred the day before. Under this pleading, and without objection from Travelers, defendant Beaty gave evidence of an oral agreement of insurance effective July 30, 1970; assuming agency and authority to bind, therefore, there was ample proof of the implied pleading of such an oral contract to support the judgment entered.

We conclude, nevertheless, that the Travelers’ petition was a sufficient and valid basis for the declaration and judgment of the court. It may be conceded that the purpose of that pleading, as Travelers contends, was for a judicial construction of the endorsement — not a modification of it. In an action for declaratory judgment, however, the trial court has a wide discretion to mold the decree to the needs of the occasion, and may grant such relief as the proof warrants and equity dictates. Melton v. Ensley, 421 S.W.2d 44, 54[17-19] (Mo.App. 1967); Borchard, Declaratory Judgments, p. 425. Thus, if as Travelers argues, the judgment of the trial court worked a reformation of the endorsement, then it was but a determination of the intention of the parties as to the legal effect to be given the contract and thus cognizable under the principal pleading.

The next contention is that the declaration of coverage was erroneous because there was no proof that Ogle was an agent of Travelers with authority to bind coverage. Travelers argues that, on the contrary, the evidence that Ogle represented other insurers proved he was a broker and not an agent of Travelers; and evidence that Ogle procured the endorsement for Beaty, remitted the premium and extended him credit, constituted Ogle an agent for Beaty. The distinction between an agent and a broker is drawn in 16 Appleman, Insurance Law and Practice, § 8725, p. 259:

A person delegated to solicit insurance for a particular company, and to refrain from soliciting insurance for any other company, is an agent, and not a broker. The fundamental distinction in the legal result is that the acts of one procuring insurance as the agent of the insurer are imputable to it, while those of one acting as the agent of the insured, or as a broker, are not; the broker representing the insured for the purpose of procuring the policy, and the insurer only in order to receive and transmit the premium.

In the conduct of his business, the broker in effect acts as .an agent; whether as to a given matter he is the agent of the insured or of the insurer depends upon the circumstances. The rule is stated in H & H Manufacturing Co. v. Cimarron Insurance Co, 302 S.W.2d 39, 43[2-5] (Mo.App.1957):

The usual and general statement is that a broker is primarily agent to the person who first employed him, and where he is employed to procure insurance he is the agent of the person for whom the insurance is procured insofar as matters connected with the procurement are concerned. Absent some special condition or circumstance in a particular case he is not the agent of the insuror; and he may not be converted into an agent for the insurance company without some action on the part of the company, or the existence of some facts from which his authority to represent it may be fairly inferred.

See, also, Schimmel Fur Co. v. American Indemnity Co, 440 S.W.2d 932, 939[1, 2] (Mo.1969).

Cognately, the authority of an agent to make a contract of insurance is determined by the law of agency. By those principles, a soliciting agent does not have the actual authority to bind the insurer by a preliminary or temporary contract of insurance. 44 C.J.S. Insurance § 230(b); Byrne v. Prudential Insurance Company of America, 88 S.W.2d 344, 348[7] (Mo.1935). Although no actual authority in such respect has been conferred, however, an insurer is bound by the acts and contracts of its agent as are within the apparent scope of authority with which he has been clothed, that is, the authority which although not actually granted, the insurer knowingly permits the agent to exercise. And by virtue of such apparent authority, “a soliciting agent may bind the company by agreements and representations made in connection with the application for insurance which he has the power to take”. Mitchell v. Metropolitan Life Ins. Co., 116 S.W.2d 186, 188[3] (Mo.App.1938); 43 Am.Jur.2d § 156.

While the evidence does not make out an actual authority of Ogle to bind Travelers, these circumstances show an apparent authority to do so: Ogle had earlier bound coverage in Travelers for Beaty on the application for the original policy. Also, the application form furnished by Travelers contained the question: “Has coverage been bound?”. These indicia of authority to bind were sufficient basis for reliance by Beaty — who was without knowledge of the limits of Ogle’s actual authority — upon the agent’s representation that coverage was effective immediately.

Thus, in Voss v. American Mutual Liability Insurance Co, 341 S.W.2d 270 (Mo.App.1960), a form furnished the insurer to the agent which contained the question: “Have you bound coverage?” was held to be an affirmative indication that the agent had authority to bind coverage immediately by an oral contract of insurance. In Baker v. St. Paul Fire & Marine Insurance Co, 427 S.W.2d 281 (Mo.App.1968), the application form contained language indicating that the agent had authority to bind. The court [1. c. 286] adopted this rule:

The forms furnished an agent for his use in transacting business with the public are cogent evidence as to what he is employed to do, and are representations to the public that he has authority to do things thereby indicated.

See, also, Beswick v. National Casualty Co, 206 Mo.App. 67, 226 S.W. 1031, 1032[1, 2] (1920).

Travelers contends [citing Dickinson v. Bankers Life & Casualty Company, 283 S.W.2d 658 (Mo.App.1955)] that Ms. Beaty could not have relied on an apparent authority to bind because her signature subscribes the application statement: “I understand this is not a binder of insurance”, and she was bound by what she signed. Nor, in view of her testimony that she signed the form in blank, could she have relied upon the subsequent completion by Ogle which indicated affirmatively that coverage had been bound. In Dickinson, the plaintiff claimed the coverage of insurance upon a contention that the soliciting agent represented the policy would become effective the day following the signing of the application. Paragraph 9 of the application contained the question:

Do you understand and agree that the Policy hereby applied for will not take effect unless and until it is issued by the Company and duly executed by the President and Secretary of the Company and that the Company is not bound by any knowledge of, or statements made by, or to any agent, unless set forth herein?

The applicant answered “yes” and signed the form. The court rejected the contention of coverage on the ground that the application, on its face, limited the authority of the agent as to the effective date of the policy, thus the signature of the prospective insured estopped her from relying on the inconsistent representation of the agent.

Dickinson does not bear as authority because, rather than expressing a limitation upon the authority of Ogle to bind, the question “Has coverage been bound?” contained in the Travelers form held out such authority for the agent. Furthermore, the Beaty signature juxtaposed beneath “I understand this is not a binder of insurance,” merely acknowledged that her signature did not effect a binder of insurance, not that the agent lacked authority to bind the risk. Nor was her reliance unjustified because when she signed the application Ogle had not yet completed the form. The application held out the authority of Ogle to bind, and Ms. Beaty had a right to rely upon a verbal representation of the agent consistent with the apparent authority conferred upon him by the Travelers form. Schimmel Fur Co. v. American Indemnity Co., 440 S.W.2d 932, 938[3 — 5] (Mo.1969).

There was sufficient evidence, upon an appropriate pleading, for the declaration of the trial court that Ogle had the apparent authority to bind Travelers to immediate coverage and did so, according to the intention of the parties to the contract, as of July 30, 1970.

The judgment is affirmed.

All concur.


author: FLANIGAN, Judge.

text:
    MICHIGAN MUTUAL LIABILITY COMPANY, Plaintiff-Respondent, v. Gary W. STALLINGS and Robert Ward, Defendants-Appellants.
    No. 9809.
    Missouri Court of Appeals, Springfield District.
    May 16, 1975.
    Motion for Rehearing or to Transfer Denied June 5, 1975.

      Fielding Potashnick, Sikeston, James E. Spain, Bloomfield, for defendants-appellants.
    Kenneth L. Dement, Sikeston, for plaintiff-respondent.

      Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Michigan Mutual Liability Company, plaintiff-respondent, sought a declaratory judgment to the effect that its Auto-Gard Family Insurance Policy No. 63-2-302066 does not obligate plaintiff to defend a lawsuit brought by defendant-appellant Robert Ward against defendant-appellant Gary W. Stallings or to pay any judgment entered therein.

The defendants admitted that portion of the petition alleging the following: “On or about July 1, 1972, while both defendants were employed by and on active duty with the Missouri National Guard, defendant Robert Ward was a passenger in a 1945 Dodge three quarter ton truck which was owned by said Missouri National Guard, and which was being operated by defendant Gary W. Stallings in a generally easterly direction over U. S. Highway 60 . in Howell County, Missouri, which vehicle then and there allegedly overturned causing defendant Robert Ward certain bodily injuries. Robert Ward has made claim against defendant Gary W. Stallings for damages on account of said alleged accident and alleged injuries. On said date and prior thereto defendant Gary W. Stallings was also employed by one James V. Stallings as an accountant.”

Stallings was the named insured in the policy. The period of the policy included July 1, 1972. The vehicle described in the policy (the “owned” automobile) was a 1972 Ford.

The petition and trial theory of the plaintiff advanced three independent grounds for a declaration of non-coverage. These grounds are:

1. The 1945 Dodge truck was not a “non-owned automobile” as that term is defined in the policy.

2. Coverage is excluded under Exclusion “f.”

3. Even if the Dodge was a “non-owned” automobile, coverage is excluded under Exclusion “h(2).”

The following provisions of the policy are germane to the issues on this appeal:

[The company] agrees with the insured, named in the declarations .

PART I — LIABILITY

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 any person arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury . . . and seeking damages .

Persons Insured

The following are insureds under Part I:

(b) with respect to a non-owned automobile,
(1) the named insured, .
Definitions
“named insured” means the individual named in Item 1 of the declarations
“insured” means a person or organization described under “Persons insured”; .
“non-owned automobile” means an automobile . . not owned by or furnished for the regular use of . the named insured . . . ;
“private passenger automobile” means a four wheel private passenger, station wagon or jeep type automobile; .

Exclusions

This policy does not apply under Part I:

(f) to bodily injury to any fellow employee of the insured injured in the course of his employment if such injury arises out of the use of an automobile in the business of his employer, but this exclusion does not apply to the named insured with respect to injury sustained by any such fellow employee;
(h) to a non-owned automobile while maintained or used by any person while such person is employed or otherwise engaged in
(1) the automobile business of the insured or of any other person or organization;
(2) any other business or occupation of the insured, but this exclusion (h)(2) does not apply to a private passenger automobile operated or occupied by the named insured. .

The trial court, sitting without a jury, entered judgment in favor of the plaintiff and held that the plaintiff’s second and third grounds were valid. The evidence presented to the trial court consisted only of the insurance policy itself and the depositions of Ward and Stallings. Those depositions, which were offered by the plaintiff, had been taken in Civil Action 7505, Circuit Court of Scott County, Missouri, Robert Ward, plaintiff, vs. Gary W. Stallings, defendant. In action No. 7505 Ward sought damages for personal injuries sustained by him arising out of the accident of July 1, 1972.

“The deference usually accorded the determination of a factual issue by a trial court because of its better position to judge of the credibility of witnesses appearing before it is not applicable to cases submitted upon depositions and exhibits.” Giokaris v. Kincaid, 331 S.W.2d 633, 635[1] (Mo.1960).

WAS THE DODGE A “NON-OWNED AUTOMOBILE”?

The parties agree that the Dodge was owned by the Missouri National Guard, and not by Stallings. But that fact, standing alone, is not sufficient to qualify the Dodge as a “non-owned automobile” as that term is defined in the policy. It is also necessary that the Dodge be “an automobile not . furnished for the regular use of” Stallings. Kern v. Liberty Mut. Ins. Co., 398 F.2d 958, 961[3] (8th Cir. Mo.1968).

Plaintiff’s policy contains no definition of the word “automobile.”

In Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628, 638[13] (1929) the court stated that the usual, ordinary and common meaning of the word “automobile” was “a vehicle containing within its mechanism the motive fuel or means of self-propulsion.” “Automobile” is the general name adopted by popular approval to denote all forms of self-propelled vehicles for use on the highways and streets, and the term is defined generally as meaning a self-propelled vehicle suitable for use on a street or roadway. 60 C.J.S. Motor Vehicles § 1, p. 152. See 74 A.L.R.2d 1264 (What is an ‘automobile’ or ‘car’ within coverage of automobile liability policy?). Thus, the Dodge was an automobile.

Was it “furnished for the regular use of Stallings”?

In State Farm Mut. Auto. Ins. Co. v. Western Cas. & Sur. Co., 477 S.W.2d 421 (Mo. banc 1972) our Supreme Court considered the applicability of a non-owned automobile clause, quoted marginally.

The court quoted the following language from an annotation in 86 A.L.R.2d 937, 940: “The purpose of the ‘drive other cars’ provision in an automobile liability policy is to cover occasional or incidental use of other cars without the payment of an additional premium, but to exclude the habitual use of other cars, which would increase the risk on the insurance company without a corresponding increase in the premium.”

The court said that two tests had been used to determine whether a non-owned automobile had been furnished or available for frequent or regular use. One test is based “solely or at least primarily . [on] . . . the purpose for which the non-owned automobile was furnished, rather than on the quantum of its use.” The other test is based on the “length or type of use rather than purpose for which the car was furnished.”

At p. 424 the court said: “[W]e conclude that we should not limit ourselves either to a test of merely determining motive or purpose or one of simply measuring length and extent of availability of use. Rather, each case should be decided on its own facts, and the court should take into consideration the type and length of use, the purpose for which the non-owned automobile was furnished, .and any other pertinent facts, including a determination of whether the use and purpose was in harmony with or viola-tive of the objective of the ‘non-owned automobile’ clause.”

The following evidence is found in the uncontradicted testimony of defendant^ Stallings and Ward contained in their depositions offered by plaintiff. Plaintiff is bound by this testimony. Orlann v. Laede-rich, 338 Mo. 783, 92 S.W.2d 190, 193[4] (1936); Riggin v. Riggin, 373 S.W.2d 633, 634[1] (Mo.App.1963).

The court said the “only real question” was the applicability of clause (iii).

Ward and Stallings were members of the Missouri National Guard, 1140th Engineering Battalion, Headquarters Co., located at Cape Girardeau, Missouri. This guard unit meets once a month for two days and, during the summer, has a two-week encampment. July 1, 1972, the date of the accident, was the thirteenth day of the encampment. The unit had been encamped at Camp Clark, Nevada, Missouri.

Ward has been in the unit five and one-half years. His rank was E-4, and he was a crane operator. Ward testified that in going from Cape Girardeau to Camp Clark he went in an army vehicle with three other guardsmen and he did some of the driving, although he was not assigned as a driver or assistant driver for that vehicle.

Stallings’ rank was E-4. When asked what his primary job was in the National Guard, Stallings replied “summer camp I handle the refueling of the vehicles.” When asked what was his “primary M.O.S.” in the National Guard, Stallings replied “I was a heavy equipment mechanic at the armory; I was a, I don’t know what the number is, water purification.”

On the night before the accident Stallings was assigned as driver of the Dodge and Ward was assigned as an assistant driver. At 5:30 a. m. on July 1, Ward “got in the same vehicle with Stallings because we knew each other and there was another vehicle there with another two people with less rank than us.” The latter personnel drove a dump truck which, according to Ward, was either a two and one-half ton or a five ton truck.

Only Ward and Stallings were in the Dodge on the return trip. The Dodge, which was a three quarter ton army vehicle with a canvas top and “with doors on the side,” contained some duffle bags and foot lockers of other members of the unit. Ward and Stallings alternated, in two-hour shifts, in driving the Dodge. Ward said there were two or three other vehicles in the Dodge’s convoy. Ward and Stallings were under orders to take the Dodge and its load to the unit headquarters at Cape Girar-deau, where they were scheduled to arrive on July 2, after an overnight stop near Van Burén, Missouri. According to Stallings there were 100 vehicles in the entire convoy but the section of the convoy which contained the Dodge had 10 vehicles.

This court now considers the factors set forth in State Farm, supra, 477 S.W.2d 421. With regard to the “type and length of use” of the Dodge, Ward and Stallings were alternating drivers on a trip which would have lasted approximately two days. There was no showing that either Ward or Stall-ings had ever driven or been assigned to the Dodge previously. Although Ward had done some of the driving of a similar vehicle in going to Camp Clark, the record contains no evidence that Stallings had done any such driving. Ward was a crane operator whose primary duty during the encampment period was acting as the colonel’s orderly. There was no showing that the duties of Stallings at the summer camp or in the monthly meetings involved the driving of the Dodge or other vehicles. Stallings’ assignment at the armory was that of “heavy equipment mechanic” and Ward testified that he considered a three quarter ton truck to be a “light vehicle.”

Plaintiff’s petition alleged “that said 1945 Dodge three quarter ton truck was not a ‘non-owned automobile’ within the meaning of said policy of insurance.” There is substantial authority for the proposition that plaintiff, having instituted the action and having made that allegation, assumed the burden of proof on that issue. It is not necessary for this court to determine whether that line of authorities is consistent with the law of Missouri.

The Dodge was assigned to Stallings one day before the accident; he and Ward alternated as drivers of it on the accident date; Stallings’ duty at the summer camp was that of handling the refueling of vehicles; his assignment at the armory was that of “heavy equipment mechanic” and the Dodge did not fit in that category. From these facts it is reasonable to infer that the operation by Stallings of the Dodge was an isolated occurrence; certainly there is no evidence that it was a regular occurrence. The record contains nothing to justify a finding that Stallings’ use of the Dodge was habitual. His operation of it, accordingly, was “in harmony with . . . the objective of the ‘non-owned automobile’ clause” as that language is used in State Farm, supra. It could properly be regarded as “occasional or incidental use” of the Dodge.

“Although the insured does not use any one vehicle regularly, his use of one of a fleet of vehicles may constitute ‘regular use’ within the meaning of such a provision.” 7 Am.Jur.2d Auto. Ins. § 106, p. 417. But here there is no evidence that Stallings used regularly vehicles from a National Guard fleet.

This court concludes that the Dodge was a “non-owned automobile.”

IS COVERAGE EXCLUDED UNDER EXCLUSION (f)?

The second paragraph of this opinion quotes a portion of the petition which was admitted by the defendants and which alleged that both defendants “on or about July 1, 1972 . . . were employed by and on active duty with the Missouri National Guard.” Whether or not the employment so admitted is the type of employment referred to in Exclusion (f) need not be explored because, in either event, the exclusion is inoperative. If National Guard employment is not the type of employment referred to by Exclusion (f), the exclusion is not involved at all. If National Guard employment is the type of employment referred to by the portion of Exclusion (f) which precedes the comma, the portion of it which follows the comma renders Exclusion (f) inapplicable because, under this assumption, Ward is a fellow employee of Stallings and injury to Ward is involved.

IS COVERAGE EXCLUDED UNDER EXCLUSION (h)(2)?

“When an insurer seeks to escape liability on its policy solely upon the basis of a policy exclusion . . ., the burden of proof rests with the insurer to establish facts that make such exclusion applicable. Wendorff v: Missouri State Life Insurance Co., 318 Mo. 363, 1 S.W.2d 99; Kelso v. Kelso, Mo.Sup., 306 S.W.2d 534.” Allison v. National Insurance Underwriters, 487 S.W.2d 257, 262[1] (Mo.App.1972). The Allison case also lists familiar rules which govern the construction of insurance policies, including their exclusionary clauses. This court must adhere to those rules but need not restate them.

Plaintiff relies on Exclusion (h)(2). For that reliance to be justified plaintiff has the burden of proving that the Dodge was used by Stallings while Stallings was “employed or otherwise engaged in any other business or occupation” of Stallings, and plaintiff must prove that the Dodge was not “a private passenger automobile.”

At the time of the accident Stallings was engaged in the performance of his duties as a member of the National Guard and he was being paid therefor. But was he engaged in a “business or occupation of the insured”? Policy provisions similar to or identical with Exclusion (h)(2) have given rise to considerable litigation and most of the cases are collected in 85 A.L.R.2d 502 (Construction of provisions excluding automobile used in insured’s “business or occupation” from non-owned automobile coverage of auto. liab. policy).

Four cases dealing with members of the National Guard are: Voelker v. Travelers Indemnity Company, 260 F.2d 275 (7th Cir.1958), Allstate Insurance Company v. Hoffman, 21 Ill.App.2d 314, 158 N.E.2d 428 (1959), Blackwell v. United States, 321 F.2d 96 (5th Cir.1963), and Glisson v. State Farm Mut. Auto. Ins. Co., 246 S.C. 76, 142 S.E.2d 447 (1965).

In Voelker, Allstate and Blackwell policy provisions substantially similar to Exclusion (h)(2) were the basis for holdings of non-coverage. In Glisson the exclusion was held inapplicable and coverage was found.

Like witnesses, foreign authorities should be weighed and not counted. This court adopts the views expressed in Glisson.

In Voelker, at p. 278, the court stated that the insurance company’s freedom from liability under the exclusion “is not free from doubt,” but held that a National Guard truck, driven by the insured, was being “used in a business * * * of such named insured.” “It was being used in the business of the National Guard, of which plaintiff was a member. In discharging his obligation to the National Guard, we think that in driving the truck he was not only engaged in its business but in his own business as well. . . . Neither do we think that the fact that plaintiff had other employment upon which he depended for his livelihood detracts from the view that he was also engaged in a business as a member of the National Guard. A person during the same period can be engaged in more than one business.”

In Voelker the court stated that it was “reasonable to think that the truck was furnished (Voelker) for his ‘regular use’ while acting in the performance of his duties as a member of the National Guard.” Such a finding, if made here, would disqualify the Dodge from being a “non-owned automobile” and thus Voelker would not have had coverage under a Michigan Mutual policy.

In Allstate the named insured was Hoffman. He was involved in an accident while operating a National Guard truck during a two-week encampment. The court said at p. 430: “It is not uncommon for an insured to have a business in addition to his regular and customary occupation which he may pursue primarily or even wholly for purposes other than pecuniary gain; but such collateral business would nonetheless constitute a business or an occupation while so pursued.”

But Allstate was a 2-1 decision. Justice Bryant, who concurred solely in the result, found himself “in complete disagreement” with the majority opinion’s interpretation of the exclusion. He felt that the words “in the business or occupation of the named insured” refer to a man’s vocation and not to his avocation, and that part time National Guard activity was only the latter.

In Blackwell it was held that National Guard training activity, during the course of which a collision occurred, was a business or occupation of the insured who was a guardsman driving a National Guard vehicle.

However, in Glisson, the Supreme Court of South Carolina, after giving due consideration to the holdings in Voelker, Allstate and Blackwell, held that Clyde Cheezem, a Methodist minister on temporary duty with the National Guard, was not using a guard vehicle “in the business or occupation” of Cheezem at the time of the accident and coverage was not excluded. The court said at p. 450: “Here Cheezem’s primary ‘business or occupation’ is that of a Methodist Minister, and it is from this pursuit that it is assumed he obtains his livelihood. He is not a full-time employee of the South Carolina National Guard, although he does receive compensation for such duty and training in which he may participate.

“We are not unmindful of the fact that during the same period a person can engage in more than one business or occupation. However, we are of opinion that participation in National Guard activities, other than on a full-time basis, is not such a ‘business or occupation’ so as to be encompassed by the policy provisions under consideration. As used in the policy the phrase ‘in the business or occupation of the named insured’ refers to a man’s vocation and not to his avocation. See concurring opinion in Hoffman case, supra, 158 N.E.2d 428.”

Stallings’ participation in National Guard activities, although a commendable pursuit and one in the national interest, did not constitute a “business or occupation” of Stallings as that language is used in Exclusion (h)(2). The “business or occupation” of Stallings, and the only one which the record reflects, was that of an accountant.

This court does not feel that the value of Glisson as a precedent is weakened by the fact that in Glisson coverage was excluded with respect to non-owned automobiles “used in the business or occupation” of the named insured,” while in the case at bar Exclusion (h)(2) uses the language “any other business or occupation of the named insured.” Glisson holds that temporary duty with the National Guard is an avocation and not a vocation, and only the latter is embraced by the language “business or occupation.”

Indeed it can be argued that the word “other” was inserted in (h)(2) because of the reference, in (h)(1), to the automobile business. In other words “any other business” as used in (h)(2) could be interpreted to mean “the business of the insured other than the automobile business.” But this court’s construction of (h)(2), in compliance with the rules expressed in Allison v. National Insurance Underwriters, supra, 487 S.W.2d 257, 262[1] does not depend upon the validity of that argument.

Plaintiff’s reliance on Exclusion (h)(2) is unjustified. The following cases, involving similar provisions though not involving National Guardsmen, are consistent with this holding: Bowen v. Merchants Mut. Cas. Co., 99 N.H. 107, 107 A.2d 379 (1954), Globe Indemnity Company, New York, N. Y. v. Jett, 367 S.W.2d 396 (Tex.Civ.App.1963), Hartford A. & I. Co. v. Larges, 232 Cal. App.2d 195, 43 Cal.Rptr. 44 (1965), and Helmich v. Northwestern Mut. Ins. Co., 376 F.2d 420 (7th Cir.1967).

Accordingly it is unnecessary to consider whether the Dodge was “a private passenger automobile.”

The judgment is reversed and the cause remanded with directions to enter a declaratory judgment in accordance with the views herein expressed.

All concur.

      . “Non-Owned Automobile — means an automobile * * * not (i) owned by, (ii) registered in the name of, or (iii) furnished or available for the frequent or regular use of the named insured, * * * other than a temporary substitute automobile.” . .

      . The title of the annotation is “Exclusion from ‘drive other cars’ provision of automobile liability insurance policy of other automobile owned, hired, or regularly used by insured or member of his household.” See also 83 A.L.R.2d 926: “What is a ‘non-owned’ automobile within the meaning of the coverage clause of an automobile liability policy.”

      . State Auto. & Cas. Und. v. Ishmael, 202 N.W.2d 384 (S.D.1972), involving the identical policy provision; Reliance Life Ins. Co. v. Fancher, 30 F.Supp. 264 (D.C.Mo.1939); Travelers Ins. Co. v. Drumheller, 25 F.Supp. 606 (D.C.Mo.1938); Reliance Life Ins. Co. v. Burgess, 112 F.2d 234 (C.A.8 1940); N. Y. Life Ins. Co. v. Stoner, 109 F.2d 874 (C.A.8 1940); Aetna Cas. & Sur. Co. v. Martin Bros. C. & T. P. Corp., 256 F.Supp. 145 (D.C.Or.1966); Concord Ins. Co. v. Miles, 118 N.J.Super. 551, 289 A.2d 267 (1972); Hanover Ins. Group v. Cameron, 122 N.J.Super. 51, 298 A.2d 715 (1973); Liberty Mutual Ins. Co. v. Sweeney, 216 F.2d 209 (C.A.3 1954); Hartford A. & I. Co. v. Lougee, 89 N.H. 222, 196 A. 267 (1938); 26 C.J.S. Declaratory Judgments § 148, p. 353 (Note 43); Wright and Miller, Fed.Prac. and Proc., Vol. 10, § 2770, p. 863 (Notes 20 and 21). See annotation in 23 A.L.R.2d 1243 (burden of proof in actions under general declaratory judgment acts.)

      . Plaintiffs policy defines “automobile business” as “the business or occupation of sell-tag, repairing, servicing, storing or parking automobiles.”