text:
    FEDERAL INTERMEDIATE CREDIT BANK OF LOUISVILLE, Petitioner, v. KENTUCKY BAR ASSOCIATION, Respondent.
    Supreme Court of Kentucky.
    Sept. 3, 1976.
    John T. Miller, Ronald L. Gaffney, Barnett, Alagia, Greenebaum, Miller & Senn, Louisville, for petitioner.
    Leslie G. Whitmer, Director, John T. Damron, Kentucky Bar Association, Frankfort, for respondent.
   PER CURIAM.

Pursuant to RAP 3.530(e), Federal Intermediate Credit Bank of Louisville (hereinafter called the Bank) has moved for review of Advisory Opinion U-ll issued by the board of governors of the Kentucky Bar Association in October of 1975 and summarized on page 24 of the October 1975 issue of Kentucky Bench and Bar.

According to its text, the advisory opinion was given in response to a question submitted by the general counsel and secretary of the Bank, as follows:

“QUESTION: Does the completion of a printed real estate mortgage form by a lay employee of a governmental lending agency, using information furnished by an attorney, the form containing a printed facsimile of the signature of an attorney who is not an employee or officer of the specific agency as the preparer of the mortgage, constitute the unauthorized practice of law by the lay employee or by the agency?

“ANSWER: Yes.

“The Kentucky Bar Association has been requested, by way of a voluntary application of the General Counsel and Secretary of the Federal Intermediate Credit Bank, to furnish an opinion as to whether the mortgage preparation procedure used by production credit associations (PCA) in Kentucky involves the unauthorized practice of law.

“As described by the requesting party, the PCA procedure is as follows:

1. Prospective borrower’s application is prepared and approved.
2. Local attorney prepares and submits a title opinion to PCA, which title opinion, it appears, contains legal descriptions, source of title and other required data.
3. A PCA employee completes the blanks on a PCA mortgage printed form, utilizing the data furnished by the title opinion and also under general ‘form’ instructions from the general counsel.
4. Loan is closed and the mortgage is recorded.
5. Local attorney reviews records and submits his final certificate of title.

“From time to time renewals of loans are required and the procedure is then as follows:

1. Prospective borrower’s application is prepared and approved.
2. PCA employee searches records for title developments since prior mortgage recorded. Any changes are noted and, if affect title, are referred to local attorney for new opinion.
3. In the event no changes are found, PCA employee completes blanks in new mortgage form, copying all information from prior mortgage except amount of loan.
4. Loan closed and mortgage recorded.

“The immediate question presented is whether step (3) in each of the procedures above involve (sic) the unauthorized practice of law.

“An examination of the blank mortgage form reveals the following information is filled in: date, name and address of borrowers), legal description and source of title of property to be encumbered, if any, and completion of notary requirements. The form contains what appears to be standard mortgage language and reflects, at the foot thereof, a printed preparer’s statement and a printed facsimile of the general counsel’s signature. The general counsel concedes that he seldom personally sees or examines the completed document, although he prepared the printed form.

“It is well settled that preparation of mortgages is the practice of law. Howton v. Morrow, 269 Ky. 1, 106 S.W.2d 81 (1937) at page 82, Kentucky State Bar Association v. Tussey, Ky., 476 S.W.2d 177 (1972) at page 178.

“It is clear, further, that a corporation may not, through professional or non-professional salaried employees, draft mortgages. Frazee v. Citizens Fidelity Bank & Trust Co., et al., Ky., 393 S.W.2d 778 (1965) at page 784.

“Under the rule enunciated in the Frazee case, the proposed procedure of the PCA outlined above involves the unauthorized practice of law in the Commonwealth of Kentucky.”

In its brief filed with this court the Bank has rephrased and broadened the question as follows:

“I. Whether An Attorney Who Is a Salaried Employee of a Corporation May Prepare Mortgages To Which The Corporation Is a Real Party In Interest?

“II. Whether the Completion of Blanks on Standardized Mortgage Form By a Lay Employee, Pursuant to the Instructions of the Attorney Who Prepared the Form and Upon Which a facsimile of His Signature as Preparer Appears, With Information Which IS Common Knowledge and With Information Provided by Another Attorney Constitutes The Preparation of a Legal Instrument and, Therefore, The Unauthorized Practice of Law?

(A) Whether Filling Uncompleted Spaces, Under the Facts and Circumstances of This Case, Requires the Exercise of Legal Knowledge or Legal Skills by the Lay Employee?
(B) Whether A Lay Employee Who Transcribed Information Into Blanks on Prescribed Legal Forms Pursuant to an Attorney’s Instructions Is Practicing Law?”

Though we do not have the information necessary to determine whether the Bank is in fact or law a “real party in interest” to loan transactions between local production credit associations and the borrowing public, we shall assume for the purposes of this opinion that it is, and that the local PCA therefore is an arm of the Bank.

Three of our opinions in recent years express principles that should be borne in mind with reference to this case.

Kentucky State Bar Association v. First Federal Sav. & L. Ass’n., Ky., 342 S.W.2d 397, 85 A.L.R.2d 178 (1961), held that although a corporation may properly employ its own licensed attorney to render legal services wholly for itself, it cannot sell to the public a service that includes legal services performed by its salaried attorney. Under this decision we are of the opinion that a lending institution certainly may have its mortgages drafted by its own counsel, so long as it collects for itself no charge against the borrower for that service and, as emphasized hereinafter, either its own counsel or some other licensed attorney passes judgment on and is responsible for the final product.

Frazee v. Citizen’s Fidelity Bank & Trust Co., Ky., 393 S.W.2d 778, 784 (1965), held that a bank or trust company cannot, through either salaried attorneys or lay employees, prepare deeds or mortgages for other persons; and Kentucky State Bar Association v. Tussey, Ky., 476 S.W.2d 177, 179 (1972), held that a lay employee cannot prepare legal instruments for his corporate employer, even though the employer is a party to the instrument.

Addressing ourselves to the question as it was presented to and answered by the Bar Association, we are of the opinion that when a lending agency presents to the borrower for execution a real estate mortgage that has been completed on a form prepared by one lawyer, with information such as the property description and payment schedule copied by a lay person from a loan application and a title certificate furnished by another attorney, neither of the respective attorneys having examined the instrument in its final form prior to execution by the borrower, the lending agency is practicing law without a license.

As a corollary proposition, it is fundamental that no person, lawyer or not, can truthfully certify that he has drafted an instrument unless and until it is completed and ready for signature, because until then it is not an instrument, but merely a form that can be sold by the bundle at any bookstore. It is no answer in this particular instance to say that each of the parts has been prepared by a licensed attorney. The fact is that when the instrument is presented to the unschooled layman as a fit and proper subject for his signature neither attorney has seen or passed on it as a whole.

Of course we shall not be trapped into declaring that when a typist copies a property description into a deed or mortgage form she is practicing law. Cf. Carter v. Brien, Ky., 309 S.W.2d 748, 749 (1956). It is the person for whom she is doing the work, and who will pass upon and cause the completed product to be presented for signature, who undertakes the responsibility for its legal sufficiency. Cf. Pioneer Title Trust Ins. & Trust Co. v. State Bar of Nevada, 74 Nev. 186, 326 P.2d 408, 411 (1958).

In order to conform to the requirement that its mortgage be prepared by a licensed attorney it would be necessary for the local PCA (a) to return the final instrument to the Bank for approval and endorsement by its counsel or (b) to have the final instrument inspected and endorsed by local counsel as the responsible drafter. One or the other must be done after the instrument is ready for signature and before it is signed.

In summary, Advisory Opinion U-ll of the Kentucky Bar Association is" affirmed.

Full court sitting.

All concur.

      . The importance of an accurate description of the property conveyed or encumbered is exemplified in Owen v. Neely, Ky., 471 S.W.2d 705, 59 A.L.R.3d 1171 (1971).

      . Legal instruments are widely plagiarized, of course. We see no impropriety in one lawyer’s adopting another’s work, thus becoming the “drafter” in the sense that he accepts responsibility for it. That, after all, is the object at which KRS 382.335 is directed.


source: Caselaw Access Project

author: DONNELLY, Justice. FINCH, Justice

license: Public Domain

text:
    STATE of Missouri ex rel. O. J. GIBSON, Jr., and Cape Girardeau Bar Association, Relators, v. The Honorable Stanley A. GRIMM, Judge, Circuit Court of Cape Girardeau County, Missouri, Respondent. STATE of Missouri, Appellant, v. Michael Wayne PROBST, Respondent.
    No. 59387.
    Supreme Court of Missouri, En Banc.
    July 12, 1976.
    Rehearing Denied Sept. 13, 1976.
    Jack L. Oliver, Cape Girardeau, for rela-tors.
    John C. Danforth, Atty. Gen. by Daniel P. Card and Robert Sommers, Asst. Attys. Gen., for appellants.
   DONNELLY, Justice.

These cases involve the question whether counsel appointed to represent indigents in misdemeanor cases shall be required to serve without compensation.

In State ex rel. O. J. Gibson v. Grimm, Relators seek to prohibit Respondent from holding Gibson in contempt of court. In State v. Probst, the State appeals from an order taxing the costs in a misdemeanor case against the State.

On April 10, 1975, O. J. Gibson, Jr. was appointed to represent Michael Wayne Probst, an indigent, in a misdemeanor case before the Magistrate Court of Cape Girar-deau County. Probst was found guilty after trial before the Magistrate Court and Gibson prosecuted an appeal to the Circuit Court. A jury found Probst guilty and a motion for new trial was overruled. Probst then informed the Circuit Court that he desired to appeal. The Court informed Gibson on December 3, 1975, of its intention to reappoint him to the case, whereupon Gibson declined further service without compensation. On December 15, 1975, Respondent made known his intention to hold Gibson in contempt, and on December 30,1975, a preliminary rule in prohibition was issued by the St. Louis District of the Court of Appeals.

On December 2, 1975, O. J. Gibson, Jr. filed a motion in State v. Probst for allowance of attorney’s fees and expenses. This motion was granted December 3, 1975, taxing costs against the State of Missouri and Cape Girardeau County. On December 4, 1975, the prosecuting attorney of Cape Gir-ardeau County filed a motion to retax costs alleging a lack of statutory authority for reimbursement of attorneys appointed in misdemeanor cases. This motion was sustained as to Cape Girardeau County and overruled as to the State. On December 23, 1975, the State filed a notice of appeal to the St. Louis District of the Court of Appeals.

By order of January 15, 1976, this Court, on its own motion, transferred both causes to this Court.

In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the United States Supreme Court held that the Sixth Amendment to the Constitution of the United States forbids the imposition of a prison or jail sentence on any indigent who has not been afforded the right to counsel. In Missouri, the effect of Arger-singer is to require that counsel be provided indigents in criminal cases where a sentence of imprisonment may be imposed for commission of a misdemeanor as well as in cases where commission of a felony is charged. Cf. Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State v. Green, 470 S.W.2d 571 (Mo. banc 1971).

In Green, supra (470 S.W.2d 571, 573) this Court, on September 13, 1971, believing the burden on Missouri lawyers of representing indigents in criminal cases without compensation to be unreasonable, announced that after September 1, 1972, the attorneys of Missouri would not be compelled “to discharge alone ‘a duty which constitutionally is the burden of the State.’ ” The General Assembly responded in 1972, and enacted §§ 600.010-600.085, RSMo Supp.1973, which provided generally for the defense of indigents charged in connection with a felony. No provision was made for the defense of indigents charged in connection with a misdemeanor.

However, the General Assembly has now acted to provide for the defense of indigents charged with a misdemeanor which will probably result in confinement in the county jail upon conviction (S.C.S. H.C.S. House Bill No. 1095, Second Regular Session, 78th General Assembly, effective August 13, 1976). Thus, this burden on the attorneys of Missouri has now, for all practical purposes, ended.

We recognize that many attorneys in Missouri have borne this burden without compensation and that they contend they should be compensated for services rendered in the past. We also recognize that the claim submitted by O. J. Gibson, Jr. for services and expenses is reasonable in amount. However, no money may be withdrawn from the state treasury other than by an appropriation law (Mo.Const., Art. IV, § 28; State ex inf. Danforth v. Merrell, 530 S.W.2d 209 (Mo. banc 1975)), and, in the circumstances, we do not consider it unreasonable to require the attorneys of Missouri, including O. J. Gibson, Jr., to bear the burden of past assignments alone.

The order of the trial court taxing costs is reversed. We are confident the parties will proceed in the future in a manner consistent with this opinion. Accordingly, the preliminary rule in prohibition is discharged.

SEILER, C. J., and MORGAN, HOLMAN and HENLEY, JJ., concur.

BARDGETT, J., concurs in result.

FINCH, J., concurs in result in separate opinion filed.

FINCH, Justice

(concurring in result).

In view of the fact that the General Assembly has provided that an indigent charged with a misdemeanor which probably will result in confinement will be provided with counsel, I agree that as a matter of policy we should reach the result arrived at in the principal opinion. I so conclude on the assumption made therein that enactment of this legislation will eliminate the need for attorneys to continue to handle large numbers of misdemeanor cases without compensation or reimbursement.

In so voting in this case, I desire to make it clear that I do so purely on the basis of policy considerations. I continue to hold the views expressed in my dissenting opinion in State v. Green, 470 S.W.2d 571 (Mo. banc 1971), as to the power of a court to tax an attorney’s fee as court costs. Were it not for the amendment to the Public Defender Act adopted in the recent legislative session, I would vote to make permanent a writ of prohibition in State ex rel. Gibson v. Grimm, and in State v. Michael Wayne Probst, I would hold that the court did have authority to tax as costs an attorney fee for representing the indigent defendant. Whether such costs should be taxed therein against the State, as I suggested in Green, or against the county because the charge is a misdemeanor is a question that I would want to consider further.

      . Section 600.047 of S.C.S. H.C.S. for House Bill No. 1095, effective August 13, 1976.

      . While the General Assembly provided for appointment of counsel for indigents charged with misdemeanors, it did not appropriate funds which will be required to fund this additional representation. We can reasonably anticipate, however, that the next session of the General Assembly will appropriate emergency funds for this purpose for this fiscal year.


text:
    STATE ex rel. John C. DANFORTH, Attorney General, et al., Relators, v. Hon. Julian M. LEVITT, Judge, Respondent. Joseph H. MOORE et al., Respondents, v. STATE of Missouri et al., Appellants.
    Nos. 59236, 59248.
    Supreme Court of Missouri, En Banc.
    July 12, 1976.
    Rehearing Denied Sept. 13, 1976.
    John C. Danforth, Atty. Gen. by Daniel P. Card, Asst. Atty. Gen., and Gordon D. Gee, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, for relators.
    William F. Mounts, Joseph H. Moore, Logan, Hentzen, Haitbrink & Moore, Kansas City, for respondents.
    Michael A. Gross and Mary Ann Weems, Clayton, Willard Bunch, Russell D. Jacobson and Stanley Christopher, Kansas City, for amicus curiae.
   DONNELLY, Justice.

Attorneys Joseph H. Moore and William E. Mounts, both licensed to practice law in the State of Missouri, filed a petition for declaratory judgment in the Circuit Court of Jackson County against the State of Missouri. In said suit, they alleged that they had been appointed to represent, and had represented, indigents charged with the commission of misdemeanors, and asked that Jackson County or the State of Missouri be held liable in an amount sufficient to compensate them for their services.

A summons was served at the office of the Governor on August 21,1973. No entry of appearance was made on behalf of the State of Missouri, and a default judgment was entered against the State of Missouri on November 5, 1973. The judgment declared the State liable in the amount of $900.00, and ordered the issuance of execution. A garnishment summons was subsequently served on a Kansas City bank which was a depository of State funds. On April 29, 1974, the State filed a motion to set aside the judgment and a petition to quash the garnishment. The motion and petition were denied on September 18,1975. The State filed a notice of appeal and applied for a writ of prohibition. Our preliminary rule in prohibition issued on October 13, 1975. The appeal (No. 59248) and the proceeding in prohibition (No. 59236) were consolidated and were argued to the Court on January 21, 1976.

In State ex rel. Gibson v. Grimm, 540 S.W.2d 17 (Mo. banc 1976), decided concurrently herewith, we (1) note that the General Assembly has now provided for the defense of indigents charged with a misdemeanor which will probably result in confinement in the county jail upon conviction; (2) note that this burden heretofore imposed on the attorneys of Missouri has now, for all practical purposes, ended; and (3) hold that, in this situation, we do not consider it unreasonable to require the attorneys of Missouri to bear the burden of past assignments alone.

We consider the decision in Gibson controlling here, and hold that the trial judge erred and was without power to order the State of Missouri to compensate counsel.

The preliminary rule in prohibition is made absolute and the judgment is reversed.

SEILER, C. J., and MORGAN, HOLMAN and HENLEY, JJ., concur.

BARDGETT, J., concurs in result.

FINCH, J., concurs in result in separate opinion filed.

FINCH, Justice

(concurring in result).

For the reasons expressed in my separate opinion concurring in result in State ex rel. Gibson v. Grimm, 540 S.W.2d 17 (Mo. banc 1976), I concur in result herein. Were it not for the recent enactment providing for appointment of counsel for indigent defendants charged with misdemeanors likely to result in confinement, I would vote otherwise, taking the position that the judge did have authority to allow a fee to counsel representing defendant and that it should be taxed as costs.


author: SEILER, Chief Justice.

text:
    STATE of Missouri ex inf. Edward C. GRAHAM, Prosecuting Attorney in and for Mississippi County, ex rel. Carol Bishop, Resident of and Taxpayer in Mississippi County, Relator-Respondent, v. Lindsay HURLEY, Judge of the County Court of Mississippi County, Respondent-Appellant.
    No. 59330.
    Supreme Court of Missouri, En Banc.
    Sept. 13, 1976.

      Jeffrey C. Vaughan, Joslyn, Joslyn & Vaughan, Charleston, for relator-respondent.
    Marvin S. Wood, Clayton, for respondent-appellant.
   SEILER, Chief Justice.

This is an information in the nature of quo warranto brought by the prosecuting attorney of Mississippi county, Edward C. Graham, at the relation of Carol Bishop, a citizen and taxpayer of Mississippi county, to oust appellant Lindsay Hurley from the office of county judge for violation of the nepotism provisions of Mo.Const. Art. VII, § 6. The trial court granted summary judgment for relator Bishop and ordered the ouster from which judgment Hurley appeals. We affirm.

On December 27, 1973, the county court of Mississippi county, including appellant Hurley, voted to establish a county ambulance service. This service was to be administered through the office of county sheriff W. J. Simmons, who was to serve as its director. The county court authorized Sheriff Simmons to hire two additional deputies to serve as ambulance drivers and attendants. Sheriff Simmons subsequently hired William Woods, appellant Hurley’s son-in-law, as one of the drivers.

On January 10, 1975, the county court, including appellant Hurley, decided to sever the operation of the ambulance service from the sheriff’s office. After thanking Sheriff Simmons for his contributions to the ambulance service, the court considered the matter of appointing a new director. Judge Adkisson, the presiding judge, moved that William Woods be appointed the new ambulance service director. During discussion of this motion, Judge Bennett voiced an objection to this appointment, but relented, and Woods was unanimously appointed the new director with appellant Hurley participating in the vote.

Prosecuting Attorney Graham, after deciding to participate in this action and receiving leave to file by the circuit court, commenced this litigation by filing an information at the relation of Bishop. The circuit court also granted relator Bishop’s counsel leave tó file a written entry of appearance for her.

The issues presented by this appeal are (1) whether relator possesses a special interest in the subject matter of the litigation sufficient to entitle her to maintain an action in the nature of quo warranto, and (2) whether appellant Hurley’s participation in the vote appointing his son-in-law, William Woods, to the directorship of the county ambulance service constituted a naming or appointing to public employment in violation of the nepotism provisions of Mo.Const. Art. VII, § 6.

An information in the nature of quo warranto adjudicates title to a public office or state franchise for the purpose of protecting the public against usurpers. Section 531.010, RSMo 1969; State ex inf. McKittrick v. Murphy, 347 Mo. 484, 148 S.W.2d 527, 530, 531 (banc 1941); State ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941, 943-944 (banc 1938); State ex rel. Attorney General v. Vail, 53 Mo. 97, 109 (1873). Under English common law, quo warranto was a prerogative writ of the Crown to be filed only by the attorney general. This form of action persists in Missouri. The attorney general, prosecuting attorney, or circuit attorney may file an information ex officio, by virtue of the power of his office without leave of court when such an action would serve the public interest. State ex inf. Danforth v. Merrell, 530 S.W.2d 209, 214-215 (Mo. banc 1975); State ex inf. Wallach v. Beckman, 353 Mo. 1015, 185 S.W.2d 810, 813 (1945); State ex inf. McKittrick ex rel. City of Campbell v. Arkansas-Missouri Power Co., 339 Mo. 15, 93 S.W.2d 887, 892 (banc 1936); State ex inf. McAllister ex rel. Manion v. Albany Drainage Dist., 290 Mo. 33, 234 S.W. 339, 341 (bane 1921); State ex rel. Boyd v. Rose, 84 Mo. 198, 202 (1884).

Later in England, the Statute of Anne, 9 Anne c. 20 (1710), broadened the form of action to allow the attorney general to file an information in the nature of quo war-ranto at the relation of a private party. See generally, Note, Quo Warranto in Missouri, 1972 Wash.U.L.Q. 751. This action also exists in Missouri and is governed by § 531.010, RSMo 1969 and Rule 98.01. Our statute and rule provide:

“In case any person shall usurp, intrude into or unlawfully hold or execute any office or franchise, the Attorney General of the state, or any circuit or prosecuting attorney of the county in which the action is commenced, shall exhibit to the circuit court, or other court having concurrent jurisdiction therewith in civil actions, an information in the nature of a quo warranto, at the relation of any person desiring to prosecute the same

When proceeding under the statute, as all private relators must, it is required that the government attorney exercise his discretion in the public interest when deciding whether to lend his name to the action. State ex rel. Black v. Taylor, 208 Mo. 442, 106 S.W. 1023, 1026-1027 (1907); State ex rel. Smith v. Gardner, 204 S.W .2d 319, 322 (Mo.App.1947). Similarly, an action pursuant to the statute requires that the court in its discretion grant the government attorney leave to file the information. State ex inf. Berkley v. McClain, 187 Mo. 409, 86 S.W. 135, 136 (1905); State ex rel. Hequembourg v. Lawrence, 38 Mo. 333, 334-335 (1866); State ex rel. Attorney General ex inf. Lawrence v. Balcom, 71 Mo.App. 27, 28 (1897). The discretion of the government attorney is complete. State ex rel. Black v. Taylor, 208 Mo. 442, 106 S.W. 1023, 1026-1027 (1907). Unless both agree, the private relator can proceed no farther.

An additional requirement for the successful maintenance of a quo warranto action at the relation of a private party is that the relator have an interest in the subject matter of the litigation apart from that of a member of the general public. State ex inf. Otto ex rel. Goldberg v. United Hebrew Congregation, 309 Mo. 587, 274 S.W. 413, 415 (banc 1925); State ex inf. Killam ex rel. Clare v. Consolidated School Dist., 277 Mo. 458, 209 S.W. 938, 941 (1919); State ex inf. Burges ex rel. Marbut v. Potter, 191 S.W. 57, 58 (Mo.1916); State ex inf. West ex rel. Thompson v. Heffernan, 243 Mo. 442, 148 S.W. 90, 92 (1912); State ex rel. Kempf v. Boal, 46 Mo. 528, 531 (1870); State ex rel. White v. Small, 131 Mo.App. 470, 109 S.W. 1079, 1082 (1908). The purpose of this requirement is to prevent the harassment of public officials at the whim of private persons. State ex rel. Pickett v. Cairns, 305 Mo. 333, 265 S.W. 527, 528-529 (banc 1924); State ex inf. West ex rel. Thompson v. Heffernan, 243 Mo. 442, 148 S.W. 90, 92 (1912). This is a valid purpose, but appellant’s contention in this regard does not warrant dismissal of this action.

The appellant relies upon two cases for the proposition that a private relator must possess a special interest in order to bring an action in the nature of quo warranto. The first case so relied upon is State ex rel. Schneider’s Credit Jewelers, Inc. v. Brackman, 260 S.W.2d 800 (Mo.App.1953) which did not concern a public office, but rather a challenge to the right of a corporation to do business under a state charter brought by a county prosecuting attorney upon the relation of private parties. The case was transferred to this court, where it was treated as if it had originally been brought here, State ex rel. Schneider’s Credit Jewelers, Inc. v. Brackman, 272 S.W.2d 289 (Mo. banc 1954). It is crucial to recognize that we specifically declined at that time to discuss the special interest of the relators. Id. at 294. Rather, our decision turned upon the view that the authority of a county prosecuting attorney to bring an action in the nature of. quo warranto is limited to matters concerning the state found within his jurisdiction, namely, the county. Consequently, the county prosecuting attorney had no authority to challenge a state-wide charter authorization, and any such challenge must be left to the attorney general proceeding ex officio or under the statute. As such, Schneider’s offers appellant’s position no support.

The second case relied upon by appellant is State ex rel. Pickett v. Cairns, 305 Mo. 333, 265 S.W. 527 (banc 1924). In Pickett, leave of court was not expressly given to prosecute the action in the nature of quo warranto, and the court stated:

“It is clear that the circuit court did not pass upon either the respondent’s title or his eligibility with respect to the office in question. The dismissing of the proceeding . . . was tantamount to the quashing of the writ on the ground that it was improvidently issued. The propriety of the court’s action in so doing is the matter presented by the record for consideration.
“But leave of court to file the information is essential to the maintenance of the action. .
“It is also well settled that leave to file the information at the instance of a private relator will not be granted as a matter of right, even though the title in question may be defective. The court should exercise a sound discretion in accordance with the principles of law and the circumstances in each particular case.” Id. at 528.

In support of the above, the court cited State ex rel. Haines v. Beechner, 160 Mo. 78, 60 S.W. 1110 (1901), where the court quoted at length from State ex rel. McIlhany v. Stewart, 32 Mo. 379 (1862) discussing the historical development and expansion of the writ, saying as follows: “ ‘ . [Informations at the relation of private persons, whether under the statute of Anne or under our statute, or exhibited at the common law, can be filed only by leave of the court. The information is not granted as of course, but depends upon the sound discretion of the court under the circumstances of the case’ ”.

It is therefore apparent that at issue in the Pickett case was the exercise of the trial court’s discretion to grant leave to file the information. In the case before us, leave was granted.

There does exist, however, a body of cases standing for the proposition that a private relator must allege a special interest in order to bring an action in the nature of quo warranto and this requirement deserves attention. See cases cited supra.

The stated purpose of the special interest requirement is to prevent the continual harassment of public officers at the instigation of private parties. Indeed, such harassment could very well frustrate the efficient functioning of public officers. In any case, however, whether the action is ex officio or pursuant to the statute, the government attorney must exercise his discretion in the public interest to participate before an action can be maintained. Further, in an action under the statute, the court must grant the government attorney leave to file the information or the action will not proceed.

It could be argued that even without a special interest requirement for private re-lators (apart from the exercise of discretion required of the government attorney and court) the statutory form of action possesses greater safeguards against harassment than the ex officio form which may be brought without leave of court. Moreover, since a relator’s interest in the litigation is properly one of many factors to be considered by the government attorney and the court in the exercise of their discretion, is not such a requirement, standing by itself, mere surplusage? Does not the discretion reposed in the government attorney and the court serve the same purpose as the special interest requirement? And finally, does not this discretion present a formidable barrier and adequate safeguard to prevent harassment of public officers by litigious individuals? Additionally, the very purpose of the statute, the protection of the public, would be frustrated if it was found that the relator did not have the requisite interest.

The size and complexity of our participatory democracy requires that all persons be vigilant in guarding against the abuse of power in order that government remain both responsive and responsible. It is difficult to imagine anyone other than a disappointed contestant for office with a more direct interest in the administration of this office. If an action cannot be brought at the relation of this citizen and taxpayer, it is highly unlikely that any action will ever be brought, and the purpose of the the statute would be frustrated.

Additionally,-in any event we are free to treat this action as one ex officio because “ . . . the information contains sufficient allegations to state a cause of action in the nature of quo warranto and to show that it was brought by the prosecuting attorney in his official capacity as the representative of the state and for the protection of a public interest.” State ex inf. Ellis ex rel. Patterson v. Ferguson, 333 Mo. 1177, 65 S.W.2d 97, 98 (1933). There is no reason to treat this case otherwise.

The next issue we address is whether appellant Hurley named or appointed his son-in-law in violation of Mo.Const. Art. VII, § 6. No other element of this section is in contention. Art. VII, § 6 provides:

“Any public officer or employee in this state who by virtue of his office or employment names or appoints to public office or employment any relative within the fourth degree, by consanguinity or affinity, shall thereby forfeit his office or employment.”

In this regard, appellant puts forward two arguments. First, because Woods was already in the employ of the county at the time the court chose him to fill the position of ambulance service director, he was merely elevated or promoted, but not named or appointed. Second, because appellant’s vote in the court’s unanimous decision was not required for the resulting outcome, appellant did not name or appoint Woods.

Appellant’s first contention is based upon the mistaken assumption that elevating or promoting and naming or appointing are mutually exclusive categories. Certainly, it may be said that a person has been elevated or promoted, but this may or may not be by virtue of an appointment. The reverse is also true. Indeed, Woods was elevated or promoted. His new position carried with it a substantial pay increase, greater duties, and the ultimate responsibility for the efficient, economical, and safe operation of the county ambulance service. The question whether a person has been promoted or elevated is independent of and separate from the question whether a person has been named or appointed. We are concerned only with whether Woods was named or appointed.

The difference between the job of ambulance driver and the position of ambulance service director is further illustrated by the manner in which these vacancies were filled. The court left it to the previous ambulance service director to choose the drivers, but when it came to selecting a director, the court made its choice and this is fatal to appellant’s argument. If the court did not name or appoint Woods, how did he become the director? The court’s selection of a director was clearly a naming or appointing within the meaning of Art. VII, § 6. There was no way the court’s selection of a director would not have been a naming or appointing.

Appellant’s second argument relies upon State ex inf. McKittrick v. Whittle, 333 Mo. 705, 63 S.W.2d 100 (banc 1933) in which a school board member was ousted for voting to employ his first cousin as a teacher and § 49.070, RSMo 1969, which pertains to the business of county courts when only two judges are sitting.

The language in Whittle that is instrumental to appellant’s argument is as follows:

“If at the time of the selection a member has the right (power), either by casting a deciding vote or otherwise, to name or appoint a person to office, and exercises said right (power) in favor of a relative within the prohibited degree, he violates the amendment.” Id. at 101-102.

Appellant argues that because he did not cast a deciding or necessary vote, consequently there was no nepotism. It is important to recognize, however, that the nepotism provision interpreted in Whittle is different than our existing Art. VII, § 6. That earlier provision, Art. XIV, § 13 (1875), adopted February 26, 1924, states:

“Any public officer or employe of this State or of any political subdivision thereof who shall, by virtue of said office or employment, have the right to name or appoint any person to render service to the State or to any political subdivision thereof, and who shall name or appoint to such service any relative within the fourth degree, either by consanguinity or affinity, shall thereby forfeit his or her office or employment.”

In contrast to our present nepotism provision, the earlier provision required both that the officer or employee have the right to name or appoint and have exercised that right by naming or appointing. Whittle was arguing that he had not violated this portion of the provision because as one member of a board he, alone, did not have the right or authority to appoint, but rather the board as a body had the right or authority, or in the alternative, that this provision was directed against officials having all the right to appoint. Whittle, supra, at 101-102. The court disagreed in the language quoted above. The language in Whittle relied upon by appellant Hurley went to explain that portion of Article XIV, § 13 that is no longer in our nepotism provision, and therefore, provides no support for his position.

Continuing his argument that he did not cast a deciding or necessary vote, appellant maintains that even if he had not been sitting and Judge Bennett had voted against the appointment, Woods still would have been named ambulance service director. Appellant claims this result by virtue of 49.070, RSMo 1969, which provides:

“ . . . when but two judges are sitting and they shall disagree in any matter submitted to them, the decision of the presiding judge shall stand as the decision of the court . . ..”

This contention is correct, but the fact remains that all three judges were sitting, and nowhere in Art. VII, § 6 does it require that a deciding or necessary vote be cast. All that is required is that the naming be “by virtue of” appellant’s office. In the sparse case law of this area, it is important to note that notwithstanding other factors, ouster was proper when the defendant participated and voted affirmatively for the naming of a prohibited relative, State ex inf. McKittrick v. Whittle, supra, and improper when the defendant abstained or did not vote in favor of the naming, State ex inf. Stephens v. Fletchall, 412 S.W.2d 423 (Mo. banc 1967); State ex rel. McKittrick v. Becker, 336 Mo. 815, 81 S.W.2d 948 (banc 1935).

The office of judge, regardless of the level, is one in which the people place a high trust. Appellant’s untenable position is that a party may vote for the appointment of a prohibited relative as long as the resulting appointment was reached by one more vote “yea” than necessary. This position is contrary to the safeguard Art. VII, § 6 presents against abuse of power and does not account for the added impetus the related officer’s participation lends, beyond his own vote, to the appointment. It would be virtually impossible to determine in each instance whether there had been overbearing or connivance. Therefore our Constitution, to prevent this abuse of power, provides that an appointment need be made only by virtue of one’s office to be in violation. Appellant should have abstained. The judgment is affirmed.

All of the Judges concur.

      . The minutes of the county court state that “After voicing an objection, Judge Bennett agreed to make it unanimous”.


author: MORGAN, Judge.

text:
    STATE of Missouri ex rel. Louise ALBERT, Relator, v. Honorable George P. ADAMS, Judge, Circuit Court, Warren County, Respondent.
    No. 59304.
    Supreme Court of Missouri, En Banc.
    Sept. 13, 1976.

      Richard M. Stout, Kirkwood, for relator.
    Darryl L. Hicks, Warrenton, for respondent.
   MORGAN, Judge.

In this original proceeding, Louise Albert (relator) seeks prohibition to restrain the trial court from granting a default judgment against her in an injunction suit in which she (and her husband since deceased) is a defendant.

In the underlying suit, Mr. and Mrs. Martin sued relator requesting an injunction to prevent trespass across their land by relator. As defendant therein, relator in her answer admitted the use of a portion of plaintiffs’ land described in their petition. Such use was based on a deed for a “private roadway” to relator, from predecessors in title to the Martins’ property, recorded December 24, 1952, in Book No. 86 at Pages 545 and 546 of the Warren County Recorder’s Office. After pleading that the roadway provided the only means of ingress and egress to her land, relator prayed to be discharged with her costs.

During the injunction proceeding the Martins propounded interrogatories to relator and her objections thereto were overruled. Those now in issue, based on relator’s claim to the easement, and the answers thereto are:

Interrogatory: “2. If the answer to Interrogatory No. 1 is in the affirmative, describe in detail the rights, titles or interests claimed by defendants.”
Answer: “2. Own private road as conveyed by Quit-Claim Deed from plaintiffs’ predecessors in title and others dated September 25, 1952 and recorded in Book No. 86, Pages 545 and 546, Warren County Records.”
Interrogatory: “3. If the answer to Interrogatory No. 1 is in the affirmative, state the legal description of the part of said real estate in which defendants claim said rights, titles or interests.”
Answer: “3. I am unable to state legal description other than as given in the aforesaid deed.”
Interrogatory: “6. State whether defendants have entered upon or used any part of the real estate described in Paragraph 1 of Plaintiffs’ Petition which lies in Section 3 thereof.”
Answer: “6. I don’t know.”
Interrogatory: “8. State whether Defendants have entered upon or used any part of the real estate described in Paragraph 1 of Plaintiffs’ Petition which lies in Section 2 thereof.”
Answer: “8. I don’t know.”
Interrogatory: “11. State the legal description by metes and bounds, of the thirty foot strip of land described by deed dated September 24, 1952, and recorded December 24, 1952, in Book 546 of the Warren County Recorder’s Office.”
Answer: “11. Unable to do so. This defendant is not trained as a lawyer or surveyor and has no survey of the property available.”

The Martins moved for judgment by default pursuant to Rule 61.01(a) and (b), alleging that relator’s answers were evasive and incomplete. That rule provides in pertinent part that “(a) ... an evasive or incomplete answer is to be treated as a failure to answer, (b) If a party fails to answer interrogatories . . . the court may . . . make such orders in regard to the failure as are just and among others the following: (1) . . . render a judgment by default against the disobedient party.”

The respondent, trial judge, has indicated that he will sustain the motion and enter judgment accordingly.

Relator contends that the provisional rule in prohibition should be made absolute (1) because the truthfulness of her answers has not been controverted and the answer that she has no other information concerning a description of the land should therefore be taken as true, (2) because a party cannot be forced to employ an expert to answer interrogatories, (3) because the Martins have not made a preliminary showing under Rule 56.01(b)(3) that they have a substantial need of the materials (if any exist) in the preparation of their case and are unable without undue hardship to obtain the substantial equivalent of the materials by other means, (4) because the Martins have not followed Rule 56.01(b)(4) relating to discovery of an expert witness’ opinion, because the interrogatories could not be answered by relator unless she employed a surveyor and therefore her answers were not evasive or incomplete and (6) because respondent cannot, without exceeding his jurisdiction, force relator to hire a surveyor in order to defend a lawsuit.

Respondent contends that the provisional rule should be quashed (1) because denial of relator’s request for a writ of prohibition by the Court of Appeals, St. Louis District, constitutes a bar to the present suit, (2) because the extraordinary writ of prohibition is not available in this case since respondent would not be exceeding his authority by entering default judgment in the underlying injunction suit, (3) because respondent has not required that relator hire a surveyor but only that she give complete and unevasive answers to interrogatories and (4) because relator has the burden of showing the location of the road which she claims by virtue of various affirmative defenses [i. e., ownership by deed and adverse possession].

All parties admit the ownership of the farm by the Martins and ownership by relator of the right-of-way easement. Whether or not there is a need for a more precise metes and bounds description of the latter quite obviously as the crux of the dispute, if in fact there is a legitimate controversy.

In this connection, relator submits that she had asked the Martins, prior to the time interrogatories were propounded to her, whether they knew of the existence of any charts, plats, diagrams, aerial photographs, surveys, maps or other like papers showing the road in question and they, by answer to the question submitted, had denied any knowledge of the existence of such; that, thereafter, relator had sought by request for admissions to secure agreement of the Martins that a United States Geological Survey aerial map made in 1948 and based upon aerial photographs taken in 1945 showed the property in question and the road; and that the Martins refused to acknowledge as much.

In response, the Martins submit that: “It should, also, be noted that [they] claim that any roadway existing in 1952 is not at the same location as any roadway that might presently be upon [Martins’] farm. The roadway has been changed because of gully washouts, farming operations, etc. Defendant complaints that she might be put to an expense in adequately answering the Interrogatories. The reply to this contention is simple. If she would abandon all claims to [Martins’] farm, she would then not not have to describe her interest. It is [relator] that is making a claim to [the Martins’] property and, therefore, is the one required to set forth that claim with enough definiteness that the same can be ascertained.”

Unless we have missed the thrust of the underlying suit entirely, it would appear that its sole objective is to require relator to have the road surveyed that the result thereof would be available to the plaintiffs (Martins). They admit the existence of the roadway and the existence of the easement in favor of relator to use the same. The need for a more precise description thereof is not revealed; but, even if we assume that one does exist, under the facts presented it is not for relator to provide the same under the sanctions of the discovery process.

The truthfulness of relator’s answer that she does not have a survey is not controverted and we therefore will assume that it is true. State ex rel. Mid-America Pipeline Company v. Rooney, 399 S.W.2d 225, 227 (Mo.App.1965). The easement roadway is there for all to see, including the Martins. “Monuments, of course, are among the more important indicias of boundaries. They are classified into natural and artificial. Natural monuments are permanent objects found on the land as they were placed by nature. Artificial monuments are landmarks or signs erected by the hand of man. 11 C.J.S. Boundaries §§ 6 and 7, pages 546, 547. ‘[I]t is one of the settled rules of the law of boundaries that calls for courses and distances, quantity, etc., will, in case of a conflict, be controlled by, and yield to, one for a natural object or landmark or permanent artificial monument.’ 12 Am.Jur.2d Boundaries, § 67, page 604; Houska v. Frederick, 447 S.W.2d 514, 518 (Mo.1969). A monument has been defined as being a ‘fixed, visible object’. Koch v. Gordon, 231 Mo. 645, 133 S.W. 609, 610 (1910).” Czarnecki v. Phillips Pipe Line Company, 524 S.W.2d 153 (Mo.App.1975). Not only have the Martins failed to show a substantial need for the survey; but, most importantly, they have failed to show that they are unable without undue hardship to obtain the same themselves. Rule 56.-01(b)(3). We have not been cited to any authority where under a comparable state of facts sanctions in the discovery process were used to force a shift of such “expense” from one party to another. In fact, the law is otherwise and a party is to be shielded from unwarranted annoyance, expense or oppression. State ex rel. Norfolk & Western Ry. Co. v. Dowd, 448 S.W.2d 1, 3 (Mo. banc 1969). Rule 58.01 implies as much in that it allows, in sub-para, (a)(2), a party seeking information to request permission to enter upon lands “for the purpose of inspection and . . . surveying . . ” The comparable federal rule has been construed in the same manner. For instance, in Onofrio v. American Beauty Macaroni Company, 11 F.R.D. 181 (W.D.Mo.1951), the court said at 184: “A party interrogated may only answer matters of fact within his knowledge, and is not required to express opinions or to make research and compilation of data and information not readily known to him.” Therein, the court also said that an adverse party should not be required to perform burdensome labors or execute expensive tasks. In Reynolds v. Southern Railway Company, 45 F.R.D. 526 (N.D.Georgia 1968), the interrogatory called for “precise measurements” of an area surrounding the scene of an accident, and the court said at 528: “It is a plain rule of discovery that a party will not be required to make available any compilation of data or research efforts that is equally available to the interrogating party. See 4 Moore, Federal Practice, ¶ 33.20, N. 12, and cases cited therein.”

Finding relator’s contentions to be meritorious, we consider respondent’s (and Martins’) arguments why prohibition should not issue and do so in the order presented as heretofore listed.

First, there is no merit whatever in the contention this court can not act because the court of appeals did not entertain a similar petition. There are many reasons why that court might have acted as it did. “A judgment denying a writ of prohibition without written opinion is not res adjudicata unless the sole possible ground of the denial was that the Court acted on the merits, or unless it affirmatively appears that such denial was intended to be on the merits.” 63 Am.Jur.2d, Prohibition, § 51, p. 283.

Second, the argument that respondent trial judge would not be exceeding his authority by entering a default judgment is rejected under the factual situation presented. Jurisdiction of the subject matter and the parties obviously is present; however, “[t]he function of the writ of prohibition is to restrict the judicial person to whom it is directed from acting or proceeding in some matter in which he has no jurisdiction, or acting so in excess of jurisdiction possessed that he may be said to be acting without jurisdiction.” State ex rel. McCubbin v. McMillian, 349 S.W.2d 453, 457 (Mo.App.1961). A more recent consideration of the question, pertaining specifically to the discovery process, may be found in State ex rel. Norfolk & Western Ry. Co. v. Dowd, supra. Therein, this court emphasized its reluctance to interfere because: “We know from practical experience and observation that Missouri discovery practice has been, overall, of great benefit in advancing the prompt and evenhanded administration of justice and disposition of cases. Interrogatories have played an important part in this process * * * It is therefore to be expected that only in unusual circumstances will a circuit judge be found to have abused his discretion in this field to the point where he should be prohibited.” (1. c. 4). We believe that such abuse is present in the instant case, and particularly so since not acting will allow a “result” not correctable in the regular course of an appeal if relator elects to have a trial and is one which probably would end the litigation.

Third, the argument that respondent has not required a survey but is ruling only on a motion is not tenable as it seems agreed that a “survey” description to be furnished by relator is her sole means of avoiding the entry of a default judgment.

Fourth, the suggestion that relator will have the burden of proof at trial and that she can not sustain the same absent a survey is no basis for the threatened sanction. From the relator’s prayer in the underlying action it does not appear certain that she has any “burden” of proof. In any event, such a possibility does not authorize the Martins to dictate how she should prepare for trial. Knowledge of a fact and proof of the same are not one and the same.

The preliminary writ heretofore issued is made absolute.

All concur.

      . The West half of Lot Two (2) of the Northwest quarter of Section Two (2), containing 49.31 acres; Also, part of the West half of Lot One (1) of the Northwest quarter of Section Two (2), containing 19.25 acres; Also, the East half of the Southwest quarter of the Northwest quarter of Section Two (2), containing 20 acres, more or less; Also, the East half of Lot Two (2) of the Northeast quarter of Section Three (3), containing 50.75 acres; Also, the East half of Lot One (1) of the Northeast quarter of Section (3), containing 40 acres; Also, the West half of Lots One (1) and Two (2) of the Northeast quarter and the East half of Lots One (1) and Two (2) of the Northwest quarter of Section Three (3), containing 179.24 acres; All in Township Forty-five (45) North, Range One (1) West and containing in the aggregate 358.29 acres, more or less.

      . A 30 foot strip of land for private roadway across grantors’ lands in Section Two (2) and Three (3), Township Forty-five (45) North, Range One (1) West, leading from the county road to the land of parties of the second part. Said private roadway to be along the present roadway, as now located, and to be maintained by parties of the second part. Should said private roadway cease to be used, the ground shall revert to grantors or their assigns.


author:
HOLMAN, Judge.
      BARDGETT, Judge

text:
    STATE of Missouri ex rel. the BANK OF GERING, Relator, v. Honorable Fred E. SCHOENLAUB, Judge of the Circuit Court of Buchanan County, Respondent.
    No. 59214.
    Supreme Court of Missouri, En Banc.
    Sept. 13, 1976.

      Edward P. Speiser, Miner, Martin & Speiser, Utz, Litvak, Thackery, Utz & Taylor, St. Joseph, for relator.
    Theodore M. Kranitz, Kranitz & Kranitz, St. Joseph, for respondent.
   HOLMAN, Judge.

This is an original proceeding in prohibition in which relator seeks to prevent respondent judge from proceeding further against it in the case of Joe M. Lyle, plaintiff, vs. The American National Bank and the Bank of Gering, defendants. Before seeking relief here relator, Bank of Gering, filed a special entry of appearance contesting the jurisdiction of the court over it and moved to quash the summons. A hearing was held at which evidence was heard and said motion overruled. Upon petition of relator we issued our provisional rule. We have decided that said rule should be made absolute.

The question presented is whether relator, a Nebraska banking corporation, served with process in Nebraska, is amenable, within the limitations of the due process clauses of the State and Federal Constitutions, to in personam jurisdiction of a Missouri court by reason of the factual situation hereinafter stated.

Plaintiff contends that the Buchanan County Circuit Court has jurisdiction by reason of Section 506.500, RSMo 1969, V.A. M.S., which reads, in part, as follows:

“1. Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts:

“(1) The transaction of any business within this state;
“(2) The making of any contract within this state;
“(3) The commission of a tortious act within this state; . . . ”

Rule 54.06 is substantially the same as the above statute.

In the month of February, 1973, Lyle entered into a number of business transactions with Tige Enterprises of Gering, Nebraska. As a result thereof Lyle drew a number of drafts upon American National Bank, St. Joseph, Missouri, payable from the account of Tige at Bank of Gering. These drafts were deposited for collection in American National which transmitted them to relator. According to an official of relator the procedure it followed was that, “We entered the draft in our collection department under an accountability number and then notified Tige Enterprises that the drafts were there and requested his acceptance or non-acceptance of the drafts. If he accepted them, they were paid immediately. If they were not accepted, they were sent back.” According to this witness, however, “On about the 7th of February, Berta’s [owner of Tige] fortunes seemed to evaporate. He became impossible to contact; his account balance at the bank was drawn to virtually nothing.” A number of the drafts were accepted and paid and some were returned to American National. The basis of Lyle’s claim for relief is the contention that relator negligently failed to notify American National and Lyle within a reasonable time that some of the drafts had not been honored, thus precluding Lyle from recovering cattle he had sold to Tige.

The evidence as to relator’s contacts or lack of contacts with Missouri was given in detail. There was testimony that relator (1) was not registered to do business in Missouri, (2) held no real estate in Missouri, (3) owned no personal property in this state, (4) held no mortgages on Missouri property, (5) had no agents in Missouri, (6) had no accounts in this state, (7) never extended credit or collected debts in Missouri, (8) never loaned money to a Missouri resident, (9) never advertised or solicited the sale of bank stocks in this state, (10) does not hold any stock in Missouri corporations, (11) has never leased property, held meetings, maintained any office or entered into contracts in this state. All of the testimony simply adds up to the conclusion that relator did not do any business in the State of Missouri and had no contacts with Missouri people or corporations except in the conduct of normal banking operations. As in this case, it does pay drafts drawn on the account of its customers (if accepted) sent to it by Missouri banks. We think it may be assumed that it collects on checks cashed at its bank and drawn on accounts in Missouri banks and honors checks of its customers that may be cashed at Missouri banks all according to usual bank clearing practices.

To a great extent the briefs of the parties cite the same cases. We will consider the principles announced in those cases and endeavor to apply them to the instant factual situation.

The early case of Pennoyer v. Neff, 5 Otto 714, 95 U.S. 714, 24 L.Ed. 565 (1877) stated the strict rule that a valid in person-am judgment against a nonresident must be based upon service of process within the state or defendant’s voluntary appearance. Since that decision great changes have occurred in transportation and in the field of business generally resulting in more liberal rules. In State ex rel. Deere and Company v. Pinnell, 454 S.W.2d 889, 893 (Mo.1970) we quoted with approval that, “ ‘Looking back over this long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents.’ More specifically, ‘ * * * due process requires only that in order to subject a defendant to a judgment in person-am, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154 [90 L.Ed. 95].”

In the International Shoe case, supra, the nonresident corporation did not have an office in the forum state but employed twelve salesmen to sell its shoes there. The salesmen were paid on a commission basis and the orders were approved or rejected by officials in the company office in St. Louis, Missouri. The shoes were shipped from factories located in other states to purchasers in Washington. Service was had by service upon a salesman within the state and registered mail service upon the company at its home office in Missouri. In holding that the suit could be maintained the court stated that, “Applying these standards, the activities carried on in behalf of appellant in the State of Washington were neither irregular nor casual. They were systematic and continuous throughout the years in question. They resulted in a large volume of interstate business, in the course of which appellant received the benefits and protection of the laws of the state, including the right to resort to the courts for the enforcement of its rights. The obligation which is here sued upon arose out of those very activities. It is evident that these operations establish sufficient contacts or ties with the state of the forum to make it reasonable and just, according to our traditional conception of fair play and substantial justice, to permit the state to enforce the obligations which appellant has incurred there.” 326 U.S. 319, 320, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945).

Another principal case is Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Therein, a woman executed in Delaware a revocable deed of trust making a Delaware trust company trustee of certain securities, reserving the income for life and providing that the remainder should be paid to such parties as she should appoint by inter vivos or testamentary instrument. Later, after becoming domiciled in Florida, where she remained until her death, she executed (1) an inter vivos instrument appointing certain beneficiaries to receive $400,000 of the trust property, and (2) a will containing a residuary clause covering, inter alia, “all property, rights and interest over which I may have power of appointment which prior to my death has not been effectively exercised.” A suit was filed in Florida to determine the validity of the power of appointment. The nonresident trust company was made a party and served by mail and publication. In holding that the Florida court had no in personam jurisdiction over the trust company the court stated that, “As technological progress has increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase. At the same time, progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome. In response to these changes, the requirements for personal jurisdiction over nonresidents have evolved from the rigid rule of Pennoyer v. Neff, 5 Otto 714, 95 U.S. 714, 24 L.Ed. 565, to the flexible standard of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. See Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S.Ct. 1360, 1 L.Ed.2d 1456. Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him. See International Shoe Co. Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95.

“We fail to find such contacts in the circumstances of this case. The defendant trust company has no office in Florida, and transacts no business there. None of the trust assets has ever been held or administered in Florida, and the record discloses no solicitation of business in that State either in person or by mail. .

“The cause of action in this case is not one that arises out of an act done or transaction consummated in the forum State.” 357 U.S. 250, 251, 78 S.Ct. 1228, 1238.

A case which construes the Missouri statute in question is Fulton v. Chicago, Rock Island & Pacific Railroad Co. (8th Cir.) 481 F.2d 326 (1973). In that case damages were sought from a number of railroads. The initiating carrier did not do business in Missouri. It was alleged that it negligently loaded the shipment which caused a derailment and damage to plaintiff’s equipment which occurred in Missouri. It was held that said carrier could be sued in Missouri under the provisions of Section 506.500, supra. Fulton relied on cases such as State ex rel. Apco Oil Corporation v. Turpin, 490 S.W.2d 400 (Mo.App.1973) which held that our long-arm statute permitted suit against a nonresident manufacturer whose defective product was sold in Missouri and caused damage to the purchaser.

Other cases cited include State ex rel. Birdsboro Corporation v. Kimberlin, 461 S.W.2d 292 (Mo.App.1970) and Southern Machine Company v. Mohasco Industries, Inc. (6th Cir.) 401 F.2d 374 (1968).

We have concluded that relator has not transacted any business or made any contract or committed any tortious act within this state. It seems to us that everything relator did concerning these transactions was done in the State of Nebraska. Certainly the returning of a draft or the proceeds thereof by mail to American National would not constitute doing business in this state. Therefore, the only possible basis for ruling that the circuit court has jurisdiction to proceed against relator is the contention that relator retained a draft for an unreasonable time without giving notice that it was unpaid thus allegedly causing Lyle to sustain damage in this state. In advancing that contention respondent relies on Birdsboro, Fulton and Mohasco. In our view those cases are clearly distinguishable from the one before us.

Birdsboro is a product liability case wherein it was held that a nonresident manufacturer could be sued in Missouri because it manufactured a defective product knowing that it would be sent into Missouri and after it arrived the purchaser sustained damage. Likewise in Fulton the negligence occurred outstate but the defendant knew the instrumentality involved would be brought into Missouri where it caused damage to the owner. In Mohasco a nonresident defendant was held to be subject to suit in Tennessee where it had entered into a licensing agreement for the plaintiff to manufacture and sell certain machines and knew that some of the machines would be sold in Tennessee. These cases go a long way in sustaining in personam jurisdiction of nonresident defendants but not as far as we are asked to go in the case at bar. In this case, if we consider the draft to be the instrumentality involved, the alleged damage to Lyle occurred while the draft was being held in Gering, Nebraska. Nothing further happened after it was returned to Missouri which caused damage to him. Moreover, there is nothing to indicate that relator purposely availed itself of the privilege of conducting activities in this state. The business involving the drafts was not solicited but came to it in the usual course of banking business. We cannot believe that the legislature in enacting Section 506.500 intended that it would apply to the factual situation before us. To do so would mean that a nonresident bank could be sued in Missouri for acts wholly performed in the state of its residence in the usual course of conducting its banking business.

It is our further view that the tenuous contacts which relator had with Missouri were not sufficient to meet the “minimum contacts” requirement necessary to comply with constitutional due process as specified in the cases heretofore discussed.

Respondent also contends that relator has made a general appearance and for that reason is subject to Missouri jurisdiction. There is no merit in that contention. After we issued our provisional rule respondent filed a motion to modify it because it applied to Count II of the petition which did not concern relator. We ordered modification. Thereafter, relator filed a motion to set aside that modification order for reasons stated therein. It is that motion which respondent says was a general appearance. We rule that said motion was a part of the orderly procedure involved in this prohibition matter and did not constitute an entry of appearance in the underlying circuit court case. The motion to quash the provisional rule filed in this connection and ordered taken with the case is overruled.

The provisional rule is made absolute.

MORGAN, HENLEY, FINCH and DON-NELLY, JJ., concur.

BARDGETT, J., dissents in separate dissenting opinion filed.

SEILER, C. J., dissents and concurs in separate dissenting opinion of BARDGETT, J.

BARDGETT, Judge

(dissenting).

I respectfully dissent.

The question is whether Bank of Gering transacted any business or made any contact in Missouri. According to a Gering Bank officer’s testimony, Bank of Gering received the first of the drafts referred to in the principal opinion at about the end of January 1973 together with a transit letter from American National Bank of St. Joseph, Missouri. Over the next three months, Bank of Gering received drafts and transit letters totaling 25 to 30 in number. When the Bank of Gering received a draft, it was entered in its collection department under an accountability number and then notified Tige Enterprises that the drafts were there and requested Tige’s acceptance or nonacceptance of the drafts. If Tige accepted them, they were paid immediately. If they were not accepted, they were sent back. About 22 drafts were paid and approximately 6 were not paid. The account of Tige Enterprises had been extremely liquid and on February 7, 1973, dropped to virtually nothing. The Gering Bank official testified that, to the best of his recollection, drafts which were dishonored were sent back to American National Bank on the next business day, but this is in dispute.

According to Clay & Co., Clay & Co. was required to reimburse American National Bank for advancements made to Clay on drafts which were not paid and for which Clay & Co. sued American National Bank and Bank of Gering in the underlying cause of action.

A group of six drafts, two dated 2-2-73 and four dated 2-5-73, totaling $55,257.09, which were deposited for collection by American National Bank under Clay’s deposit account card with American National Bank, were forwarded to Gering by transmittal letter and received by Bank of Ger-ing on 2-7-73. These drafts are referred to by the parties as “Group A”. According to the testimony of an official of American National Bank, notification of nonacceptance by Gering Bank as to Group A drafts was not received until March 5, 1973.

In State ex rel. Deere and Company v. Pinnell, 454 S.W.2d 889 (Mo. banc 1970), the court construed, inter alia, section 506.500 and noted that the Missouri long-arm acts were patterned after similar Illinois laws, and the court utilized Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957), as authority for the scope of the Missouri statutes. This court in Deere held at 892: “In concluding our effort to determine the legislative intent of the General Assembly of Missouri, we are convinced that the ultimate objective was to extend the jurisdiction of the courts of this state over nonresident defendants to that extent permissible under the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States.”

In Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961), the court held that it was not necessary for the defendant to be present in the forum state in order to be subject to long-arm service and in personam jurisdiction. In Gray the defendant manufactured a defective valve in Ohio which was used by another foreign corporation on a heater which, in turn, was sold to Gray and exploded in Illinois causing injury in that state. Gray presented a factual situation very similar to our case of Deere which cited Gray as authority for upholding long-arm service upon a defendant. Nor is the nonresident defendant’s presence in the forum state required when jurisdiction is premised on “the transaction of any business within [the] State.” Ziegler v. Houghton Mifflin Co., 80 Ill.App.2d 210, 224 N.E.2d 12 (1967).

In the instant case the drafts were sent directly to the Bank of Gering by the American National Bank of St. Joseph, Missouri, with written instructions as follows: “We enclose for collection and immediate returns, items as listed below. Protest all items over $500.00 unless marked x or items stamped ‘no pro. 36-3’ (or similar authority of a preceding endorser). Wire non-payment of items of $1000.00 and over, except those not paid because of missing, irregular or unsatisfactory endorsement.” In each instance Bank of Gering undertook collection of the item by attempting to obtain acceptance or nonacceptance from its depositor, Tige Enterprises. Each item was recorded by Bank of Gering in its records which records show the name and address of the party sending the item (The American National Bank, 6th & Francis Streets, St. Joseph, Mo. 64502); the type of item (customer drafts); the drawer (Tige Enterprises, Inc., signed by Mary Kay Hughes, payable to John Clay & Co.); “on whom drawn” (Tige Enterprises, Inc., P. O. Box 277, Gering, Nebraska, 69341); the amount of the draft; date received; and “date due” (within 24 hours). A vice-president and cashier of the Bank of Gering testified that the handling of the drafts between Tige Enterprises and John Clay & Co. was done under his supervision and he had personal knowledge of the transactions.

The Bank of Gering accepted the drafts for collection and as such became a collecting bank, section 400.4-105(d), RSMo 1969, and Code Comment at Vol. 20B, V.A.M.S., p. 318, and the agent or subagent of the American National Bank, section 400.4-201(1). The acceptance of the drafts by Bank of Gering for collection constitutes a contract for collection. See Patton’s Digest of Legal Opinions, Vol. 11, p. 1250, sec. 1:6, and cases cited therein. There had been a prior course of dealings between Bank of Gering and American National Bank in that about 22 similar drafts had been forwarded by American National to Bank of Gering for collection and were collected by it with remittance to American National Bank in St. Joseph. Certainly a bank is held to the knowledge that, if it fails to perform the duties of a collecting bank with reference to presentment of the draft to the party upon whom the draft is drawn (Tige Enterprises) and to give timely notice of dishonor to its principal (American National Bank), injury and damage may or will occur to the party entitled to receive the proceeds and that such damage, if any, will occur in Missouri.

Indeed, the provisions of the U.C.C. of Missouri and Nebraska which, in effect, codified the customs and practices of banks with reference to collections prior to the adoption of the U.C.C. itself existed because it has always been known that damage will probably occur unless prompt notice of dishonor is given by the collecting bank. See Zollmann, Banks and Banking, Vol. 10, p. 555. And there is no denying that the handling of drafts for collection is part of the regular course of business of a bank.

It would be difficult to describe the course of dealings between the Bank of Gering and the American National Bank as anything other than the doing of business between the two. Nor can it be said that the business was done only in Missouri or only in Nebraska. Here the transactions required the doing of acts in Missouri and Nebraska. The very nature of the Bank of Gering’s obligations required that it transmit remittances or notices into Missouri pursuant to its agency relationship with the Missouri bank which relationship came into being by the voluntary acts of the Bank of Gering in accepting the drafts for collection.

The requirement of minimal contacts with the forum state is satisfied under Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), if the defendant “purposefully avails itself of the privilege of conducting activities within the forum state.” Here, the Bank of Gering purposefully availed itself of the privilege of conducting business activities with the American National Bank in Missouri, which activities had to be performed, in part, in Missouri in order for the business transactions undertaken to be completed. Bank of Ger-ing had to deliver remittances or notices of dishonor into Missouri and it knew that the damage resulting from a failure to exercise ordinary care or failing to comply with the pertinent provisions of the U.C.C. would occur in Missouri.

I believe the acts of the Bank of Gering constituted the transaction of some business in Missouri and would hold those acts sufficient to satisfy the due process requirements of minimum contact required by the Fourteenth Amendment, United States Constitution, under Hanson v. Denckla, su pra, and the due process clause of Art. I, sec. 10, Mo.Const.

I think it is of some significance that the principal opinion states that “All of the testimony simply adds up to the conclusion that relator did not do any business in the State of Missouri and had no contacts with Missouri people or corporations except in the conduct of normal banking operations." (Emphasis mine.)

It seems to me when the normal business operations of a bank involve transactions and the making of contracts with Missouri residents that this certainly satisfies the requirements of section 506.500 so as' to subject the nonresident bank to the jurisdiction of the Missouri courts.

For the foregoing reasons I believe our provisional rule in prohibition heretofore issued should be quashed and therefore I dissent.


author: BARDGETT, Judge.

text:
    Rick GREMMINGER, Petitioner, v. Clyde V. BILLINGS, Senior Supervisor of the Kansas City District of the Missouri State Board of Probation and Parole, Respondent.
    No. 59213.
    Supreme Court of Missouri, En Banc.
    Sept. 13, 1976.
    Douglas N. Merritt, Kansas City, for petitioner.
    Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   BARDGETT, Judge.

Rick Gremminger filed an original petition for writ of habeas corpus in this court naming James Bergfalk, director of the Jackson county department of corrections as respondent, seeking release from the Jackson county jail on the ground that an ex parte order of a magistrate judge continuing his probation for one additional year was invalid because he was not given notice and a hearing prior to the extension order. Petitioner contends the extension of probation by the magistrate judge without notice and hearing was a denial of due process as guaranteed by the Fourteenth Amendment to the United States Constitution, and Art. I, sec. 10, Mo.Const.

Clyde V. Billings, supervisor of the Kansas City district of the Missouri state board of probation and parole, has been substituted as respondent because on September 22, 1975, petitioner was released from the Jackson county jail on order of the magistrate judge following a probation revocation hearing and returned to probation status under the supervision of the present respondent.

Respondent filed a return but petitioner did not file any answer or response. The return therefore will be taken as accurately stating the facts.

On August 13, 1974, petitioner pleaded guilty before Magistrate Judge Stitt in Jackson county, Missouri, to the offense of possession of less than 35 grams of marijuana. He was sentenced to one year in the Jackson county correctional institution. Execution of sentence was suspended and petitioner was placed on probation for one year. A special condition of probation was that petitioner maintain steady employment. Petitioner failed to maintain steady employment. On August II,1975, two days before the probation was due to expire, the magistrate extended the probation for one year in an ex parte order. On August 12, 1975, petitioner was directed to enter into and complete the Salvation Army employment program because of the lack of motivation which he showed in gaining and maintaining employment during the probation period. Petitioner did not cooperate and did not actively seek employment. Therefore, on August 18, 1975, petitioner agreed to enter the Model Inmate Employment Program by August 22, 1975, if he failed to have a job by that date. On August 22, 1975, petitioner had no job and was taken into custody and taken to the Jackson county jail for placement in the Model Inmate Employment Program. On September 10,1975, the magistrate released petitioner from jail because of the petition for writ of habeas corpus filed in this court. On September 22, 1975, Judge Stitt held a probation revocation hearing and continued petitioner on probation.

Several weeks before the probation extension order of August 11, 1975, was entered, petitioner’s probation officer thoroughly explained to petitioner that he (probation officer) was requesting an extension of petitioner’s probation. Petitioner did not request a hearing. After probation was extended, petitioner was promptly notified of that fact.

The issues presented by this case have been discussed and decided in Ockel v. Honorable James T. Riley, et al., 541 S.W.2d 535 (Mo. banc 1976), [No. 59249 decided concurrently herewith].

The writ of habeas corpus heretofore issued is quashed. Ockel v. Riley, supra.

All of the Judges concur.


author: HENLEY, Judge.

text:
    Robert E. GROVES, Plaintiff-Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    No. 59337.
    Supreme Court of Missouri, En Banc.
    Sept. 13, 1976.

      Kenneth L. Dement, Sikeston, for plaintiff-respondent.
    David G. Beeson, Buerkle, Buerkle & Lowes, Jackson, for defendant-appellant.
   HENLEY, Judge.

This is an action by an insured against his insurer to recover under the comprehensive coverage provision of his policy for damages to his automobile. Verdict and judgment were for plaintiff. Defendant appealed to the Court of Appeals, Springfield district. That court affirmed and, on application of defendant, we ordered the case transferred to this court. We reverse and remand with directions.

The substance of plaintiff’s claim is: (1) that in January, 1971, the engine of his 1965 Ford automobile was vandalized by a person or persons unknown putting sugar either in the gasoline tank or in the engine’s oil, resulting in destruction of the engine, and his damage in the amount of $700; (2) that in April, 1971, about two months after he reported his loss to defendant and demanded payment therefor, defendant refused to pay, claiming that the loss was not caused by vandalism but was the result of ordinary wear and tear for which it was not liable under provisions of the policy issued to plaintiff; and (8) that defendant’s refusal to pay was vexatious, by reason of which he is entitled to recover, in addition to his actual damage, damages of 10% thereof ($70) and a reasonable attorney fee of $500.

Defendant’s answer and its position at trial was that the damage to plaintiff’s automobile was not caused by vandalism as claimed by its insured, for which the policy did afford coverage, but was caused by ordinary wear and tear or mechanical failure or breakdown, for which the policy did not afford coverage; that for these reasons it was not liable to plaintiff for his loss. Defendant further alleged in support of its defense to the claim of vandalism that it sought and in good faith relied upon the opinion of an expert who informed it that, based upon his experience, examination and tests, there was no evidence of sugar in the engine; and that it so informed plaintiff when it refused to pay his claim.

Plaintiff’s evidence included the testimony of two experienced mechanics who stated that their experience is that when sugar reaches the cylinders of an automobile engine through the fuel or lubricating systems it causes a seizure or binding-up of its moving parts; that they examined plaintiff’s engine and found thereon a “brown gummy substance” which they identified as sugar; that they also found the pistons “frozen” or locked to the walls of the cylinders, a condition caused by sugar.

Defendant’s evidence included testimony of (1) a professor of chemistry who was also chairman of the division of mathematics and science at Southeast Missouri State University whose qualifications as an expert were not questioned; and (2) an adjuster or field representative of defendant who investigated and handled plaintiff’s claim and who had had experience with claims involving damage to automobile engines allegedly caused by sugar.

The professor testified that he examined and made tests of a gasoline sample, oil sample and piston scrapings brought to him by defendant’s adjuster; that in these tests he was looking for evidence of sugar, found none, and none was present; and that he so reported to defendant.

The adjuster testified that he took the samples referred to by the professor from the damaged engine of plaintiff’s automobile and delivered them to the professor; that he found no evidence of sugar or damage caused by sugar when he examined plaintiff’s engine; that the damage he found was caused by ordinary wear and tear, probably produced by water or antifreeze escaping onto the pistons and into the cylinders.

The main question presented is whether defendant’s alleged vexatious refusal to pay plaintiff’s claim should have been submitted to the jury. We hold that it should not have.

The law is well settled that the penalty for vexatious refusal of an insurance company to pay the claim of its insured should not be imposed unless the facts and circumstances surrounding the company’s refusal to pay show that the refusal was wilful and without reasonable cause or excuse, as the facts would have appeared to a reasonable person before trial. An insurance company may question and contest an issue of fact relating to its liability if it has reasonable cause to believe, and does believe, that there is no liability under its policy and that it has a meritorious defense. The mere fact that the trial judgment is adverse to a defendant’s contention is not sufficient reason for imposing the penalty. Young v. New York Life Insurance Co., 360 Mo. 460, 228 S.W.2d 670, 672[3] (1950); Camdenton Consolidated School District No. 6 ex rel. W. H. Powell Lumber Co. v. New York Casualty Co., 340 Mo. 1070, 104 S.W.2d 319, 331[10] (1937); Scott v. Missouri Insurance Co., 246 S.W.2d 349, 355[13-16] (Mo.App.1952).

There was no evidence of bad faith on the part of defendant. There was evidence indicating that there was a question of fact about which there could be an honest difference of opinion as to whether plaintiff’s damage was caused by the vandalism claimed by plaintiff. The evidence indicated that defendant had reasonable cause to believe, and did believe, that this damage was not caused as claimed and that it was not liable under its policy. The court erred in submitting the issue of vexatious refusal to pay.

Defendant contends also that the court erred in not directing a verdict for it at the close of all the evidence, because even if it be assumed that the damage to plaintiff’s engine was the result of the described act of vandalism, plaintiff failed to make a submissible case in that he failed to prove that the vandal did it wilfully with malicious intent to do damage.

It is common knowledge that sugar is a substance foreign to and not normally to be found in the fuel supply or crankcase of a motor vehicle and when it is found damage thereto accompanies operation of the engine.

Plaintiff testified that his automobile had been parked unattended in a large unenclosed parking lot of his employer, International Shoe Co., for several hours before he left his employment in the automobile en-route home late in the afternoon of January 10, 1971; that he had driven about three blocks when it “just locked up, made a loud sound, and just stopped.” There is no suggestion that plaintiff was the culprit.

Plaintiff did not fail to make a submissi-ble case in the respects suggested by defendant. A jury reasonably could find, as assumed by defendant in this point, that sugar did find its way into the fuel supply or crankcase of plaintiff’s automobile; and a jury reasonably could infer from the evidence that the sugar reached the engine through the hands of a person wilfully and maliciously intending to do damage. Hence, the question was for the jury and the court did not err in overruling defendant’s motion for directed verdict. Cruse v. Government Employees Insurance Co., 391 S.W.2d 1 (Mo.App.1965); State v. Kiplinger, 430 S.W.2d 616 (Mo.App.1968); Couch on Insurance, 2d, § 42:603, pp. 298-299.

Defendant’s next point is in two parts: (1) that the court erred in admitting “evidence of the before and after value as a measure of damages * * * to plaintiff’s automobile;” and (2) that the court erred in giving instruction No. 5 submitting this measure of damages, because the proper measure of damages is the cost of repair where it is substantially less than the difference between the before-and-after value.

The general rule is that the measure of damages for injury to personal property such as an automobile is the difference between its reasonable market value before and after the damage. Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903, 910[23] (1933). However, there is an exception to this rule “where the amount of damage is insignificant, as compared to the value of the property as a whole and involves only a small part thereof * * Gulf M. & O. R. Co. v. Smith-Brennan Pile Co., 223 S.W.2d 100, 104-105[6, 7] (Mo.App.1949). See also: Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 253 S.W.2d 158, 164[12] (1952).

Evidence of the difference between the reasonable market value of plaintiff’s automobile before and after destruction of its engine clearly was admissible; hence, the court did not err in admitting that evidence.

Instruction No. 5 is MAI 4.02 verbatim, the only measure of damages instruction approved for use (at the time this case was tried in May, 1972) when the damage is to property alone. The court did not err in giving instruction 5 for this and another reason. The evidence is that the reasonable market value of this 1965 Ford before its damage was $800—$900; that the reasonable cost of restoring it to its pre-damage condition was “around $500.” We can not say that the cost of restoration ($500) is so insignificant compared to the value of the property as a whole ($800-$900) as to bring the case within the exception to the general rule and thus require remand for a new trial. There is no merit in defendant’s point.

We have considered defendant’s charge of error in the giving of instruction No. 3, plaintiff’s verdict director, and the six separate parts of defendant’s point, and conclude that there is no merit in it. There is no approved verdict directing instruction for use in a suit on an insurance policy for damage to the insured’s automobile. Instruction 3 is patterned after MAI 31.08, applicable to a suit on a life insurance policy. Instruction 3 is brief and simple; it is within the general scope of the pleadings; it submits only ultimate fact issues; and, while it hypothesizes items not controverted (items “first” through “third”), no prejudice resulted to defendant thereby. The instruction should have required a finding in paragraph “fifth” that plaintiff sustained damage instead of a finding that the automobile sustained loss, and in this respect the instruction was erroneous. However, we determine that under the facts of this case this error could have had no effect prejudicial to defendant.

After the jury had brought in its verdict the court directed its reporter to transcribe testimony of two witnesses and deliver the transcript to the state’s attorney for his use in determining whether or not to prosecute them for perjury. The court ordered that the cost of this transcript be taxed as costs herein.

Defendant complains of this order (and did so in his motion for new trial) contending (1) that it is aggrieved thereby since this cost fell on it as the losing party; and (2) that the cost of this special transcript is not taxable as a part of the costs in this case, it being for the separate use of the prosecutor on state business and not necessary to the parties on this appeal.

An item is not taxable as costs in a case unless it is specifically authorized by statute, or by agreement of the parties. McClue v. Epsten, 492 S.W.2d 97, 98[1] (Mo.App.1973). Sections 485.100 and 485.110 provide for the taxing of costs of transcripts of trial proceedings. They do not authorize the court to tax as costs in a civil case the cost of a transcript of proceedings in that case for use by a prosecutor in investigation of a possible criminal proceeding. The court exceeded its jurisdiction in this respect and this portion of the judgment should be set aside.

Other points briefed by defendant involve assignments of error relating to (1) admission of evidence, (2) laying the foundation for and impeachment of a witness, (3) expressions and conduct of the trial judge alleged to have denied defendant a fair trial, and (4) objections to argument of counsel. We have considered each of these points and counsel’s supporting argument. We do not discuss these points, because either the error was harmless and would not change the result we have reached or there was no error.

The judgment is reversed and the cause is remanded with directions that the trial court:

1. set aside its judgment;
2. enter judgment for plaintiff and against defendant for $700 (amount found by the jury to be plaintiff’s actual damages) with interest;
3. tax the costs, except cost of the special transcript, against defendant.

All concur.

      . The total amount of the judgment is $1270, being $700 actual damage; and, $70 damage for vexatious refusal to pay and $500 as attorney fee awarded pursuant to § 375.420, RSMo 1969.

      . Missouri Approved Jury Instructions, second edition.

      . See 1973 pocket parts to MAI for order of this court dated December 19, 1972, and Notes on Use [Supplemental] MAI 4.02, effective July 1, 1973, approving a form for a “cost of repair” instruction for use “[i]n those rare cases in which the cost of repair is the appropriate measure of damages * *

      . Instruction No. 3 is as follows:
      “Your verdict must be for plaintiff if you believe: First, defendant issued its policy of automobile insurance to plaintiff, and
      Second, said policy provided coverage for loss by malicious mischief or vandalism, and Third, the policy was in force on January 10, 1971, and
      Fourth, plaintiff was the owner of a 1965 Ford automobile covered by said policy of insurance, and
      Fifth, said 1965 Ford automobile sustained loss caused by malicious mischief or vandalism, Unless you believe that plaintiff is not entitled to recover by reason of Instruction Number 9.”