text:
    Clarence Larry GASTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 20, 1976.
    Rose Levada Shipp, Louisville, for appellant.
    Ed W. Hancock, Atty. Gen., Robert L. Chenoweth, Asst. Atty. Gen., Frankfort, for appellee.
   PALMORE, Justice.

The appellant, Clarence Larry Gaston, was found guilty on two counts of illegally trafficking in heroin and sentenced to seven years’ imprisonment on each count, to run concurrently. The crime in question is denounced by KRS 218A.010(19), 218A.050(2) and 218A.140, and the limits of the penalty are fixed by KRS 218A.990(1).

We are not convinced that any prejudicial error occurred in the trial of the case unless it resulted from the trial court’s refusal to require production of a document in accordance with RCr 7.26.

RCr 7.26, effective January 1, 1965, was prompted by the federal “Jencks” Act, 18 U.S.C. § 3500. Lynch v. Commonwealth, Ky., 472 S.W.2d 263, 267 (1971). It entitles a defendant to see and interrogate a Commonwealth’s witness about any statement he has made in the form of (a) a writing signed or initialed by him or (b) a writing or some other type of recording that is or purports to be a substantially verbatim record of what he said; so long as it relates to the testimony he has given from the witness-stand. See LeGrande v. Commonwealth, Ky., 494 S.W.2d 726, 728 (1973); Maynard v. Commonwealth, Ky., 497 S.W.2d 567 (1973); Roach v. Commonwealth, Ky., 507 S.W.2d 154 (1974). It makes no difference whether the witness has used the statement to refresh his recollection. It need only exist, and if (a) it is either signed or initialed by him or (b) it is or purports to be a verbatim record of what he said, then to the extent that it relates to his testimony it comes within the rule.

In this case the statement in question was in the form of a memorandum (which he called an “evidence letter”) made by a police officer. In accordance with standard procedure, he had submitted the letter to his superior officer, following which it was placed in an envelope. The envelope was then signed by the officer and sealed. In our opinion there can be no question that the signature of the author on the envelope brings the letter within the rule if it relates to the testimony given by the officer. The trial court denied defense counsel’s motion to have it produced for inspection. Thus it could not be put in by way of avowal, so it cannot be determined from the record whether it relates to the officer’s testimony and, if so, whether the error was prejudicial.

In conformity with the procedure directed in Roach v. Commonwealth, Ky., 507 S.W.2d 154, 155 (1974), the judgment is vacated and the cause is remanded for further proceedings to determine whether the contents of the “evidence letter” prepared by officer Downs were such that the denial of appellant’s right of inspection and use under RCr 7.26 was prejudicial. If it be so found by the trial court, the appellant is granted a new trial. If it is found not to have been prejudicial, the judgment may be reinstated subject to further review by this court.

All concur.

      . This information ought to appear on the face of the indictment, as required by RCr 6.10(3). Failure to include it, as in this instance, is at best slothful practice and at worst might very well amount to reversible error.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Burton R. SIGNER, Respondent.
    Supreme Court of Kentucky.
    Feb. 20, 1976.

      Leslie G. Whitmer, Counsel, Kentucky Bar Ass’n, Frankfort, for complainant.

      Frank A. Logan, Louisville, for respondent.
   PER CURIAM.

The respondent, Burton R. Signer, was admitted to the Ohio bar on April 23, 1958. On or about March 2, 1966, after having practiced in Ohio for more than five years, he applied for admission to the Kentucky bar without examination. Upon receipt of a favorable report on his moral and professional character by the National Conference of Bar Examiners he was admitted to the Kentucky bar on July 22, 1966.

Meanwhile, during 1965 Signer had conducted certain business dealings in Ohio that eventuated in his disbarment by the Supreme Court of Ohio on July 28, 1972. See Cincinnati Bar Association v. Signer, 30 Ohio St.2d 303, 285 N.E.2d 10 (1972). The Ohio disciplinary proceeding was initiated in October of 1971 and did not come to the attention of the Kentucky Bar Association until some time in 1973. On January 9, 1974, the Kentucky Bar Association instituted this disciplinary proceeding based solely on the Ohio disbarment.

The trial committee conducted a hearing of the charge and concluded that under In re Clay, Ky., 261 S.W.2d 301 (1953), the Full Faith and Credit Clause of the United States Constitution (Article 4, § 1) requires Signer to be disbarred or suspended in Kentucky so long as the Ohio disbarment continues in full force and effect. The bar association’s board of governors concurred, and so recommends to this court.

The action of the Supreme Court of Ohio in barring Signer from the practice of law in Ohio did not purport to affect his right to practice law in any other state, and could not validly have done so anyway. The Full Faith and Credit Clause cannot possibly be twisted into giving to the Ohio action an effect it did not purport to have. The Ohio court ruled that Signer cannot practice in. Ohio. The fundamental requirement of full faith and credit is merely that every other state recognize that he cannot practice in Ohio, and of course we recognize that.

It is conceivable, for example, that under the prevailing standards of one state a lawyer could be disbarred for expectorating on a public sidewalk, whereas in another the rigors of professional discipline might be somewhat less severe. What might suffice to justify disbarment in Ohio might not suffice here. Unlike a marital status, for example, which involves the same two people wherever they may be, the right to practice law does not involve the same two parties from state to state. It involves the individual person on the one hand and the individual state in which he claims the right to practice on the other. The status existing between the two cannot, of itself, determine the status of the same individual person and another state.

The bar association’s logic would require that if the man had been convicted of a felony in Ohio and sentenced to five years in the penitentiary, full faith and credit would require him to be convicted and sentenced here as well. The dog simply will not hunt.

In re Clay, Ky., 261 S.W.2d 301 (1953), is unsound and is overruled.

The bar association takes the position also that because Signer was admitted to practice in Kentucky on the basis of his admission and five years of practice in Ohio, disbarment there should call for disbarment here. This too we find to be a novel theory indeed. In effect, it would mean that his admission to practice in Kentucky was something in the nature of a common-law determinable fee, or fee subject to a condition subsequent, to last only so long as he continued to be a member of the Ohio bar, or subject to termination here if terminated there. As it is, however, our rules do not provide for that kind of membership. One who is admitted on motion based on his membership and practice in another state has precisely the same rights as one who is admitted on the basis of the bar examination. We doubt that anyone would seriously question that proposition, and if it is correct, then obviously he must be subject to exactly the same disciplinary rules. Again pursuing the bar association’s peculiar logic, if Signer had been admitted to practice here before he was admitted in Ohio his disbarment there would not require his disbarment here, but the purely fortuitous circumstance that he had been admitted in Ohio first would call for the opposite result. Absurd.

We now turn to the serious questions in the case. What effect should the Ohio action, without further proof, have in a disciplinary proceeding brought in this state, and to what extent is it significant that the conduct leading to Signer’s disbarment in Ohio took place before he was admitted in Kentucky?

In answer to the first of these questions, we are favorably impressed by the reasoning of the Supreme Court of Florida in The Florida Bar v. Wilkes, Fla., 179 So.2d 193 (1965), and are of the opinion that it should govern the effect of disciplinary proceedings based on conduct that has been the subject of disciplinary proceedings held in other states. That case involved a rule that we do not have here, but the absence of a rule need not impede the application of a sound principle.

Absent some defense sufficient to support a collateral attack, we are of the opinion that the facts adjudicated in the sister state, on which its disciplinary judgment was based, should be treated as conclusively established, eliminating any necessity of retrying the same factual issues, or other factual issues that could and should have been raised in that case, in a disciplinary proceeding here. But there the influence of the foreign judgment must end. This state alone must be the judge of the relationship between the lawyer’s conduct and his fitness, and the arbiter of what shall be the consequences upon his right, to practice law here.

On the second question, the effect upon one’s right to practice law of misconduct committed prior to his admission has differed among the various courts that have had the occasion to consider it. See annotation at 165 A.L.R. 1138 (1946). If the conduct in question had actually and fully come to the attention of the bar association or its agency for investigating and reporting on the applicant’s fitness, no doubt his admission to practice thereafter would preclude future consideration of it as a basis for disciplinary action. On the other hand, if the bar association had no knowledge of it, or was unaware of some substantial element of it, public protection against a potential vulture justifies disbarment if it be fairly determined after a due process hearing that the conduct was such that, if known at the time, it would certainly .have resulted in a denial of his application for admission to the bar. In short, that is the criterion we think must be applied in this instance.

It will be necessary, therefore, for the bar association to determine whether to institute a new charge or an amended charge against Signer based upon the facts adjudicated by the Ohio court and, in the event such a charge is brought, to have it heard and considered with respect to whether those facts, if known at the time, in good conscience would have required (not justified, but required) rejection of his application.

The matter is remanded to the Kentucky Bar Association for further proceedings consistent with this opinion.

All concur.


author:
FINCH, Judge.
      SEILER, Chief Justice.

text:
    CAMERON MUTUAL INSURANCE COMPANY, Plaintiff-Respondent, v. Harry E. MADDEN, Jr., Defendant-Appellant.
    No. 59123.
    Supreme Court of Missouri, En Banc.
    Feb. 9, 1976.
    Rehearing Denied March 8, 1976.
    Max von Erdmannsdorff, North Kansas City, for defendant-appellant.
    George T. O’Laughlin, Kansas City, for plaintiff-respondent.
   FINCH, Judge.

This is an appeal in a declaratory judg- ment action wherein plaintiff Cameron Mutual Insurance Company (insurer) sought a declaration of its obligations under its combination automobile policy issued to defendant Madden to cover two automobiles. The precise issue presented is whether the insurance company is liable to Madden under the uninsured motorist and medical payments coverages on the automobile not involved in an accident as well as those on the vehicle which was involved.

The facts are stipulated. Madden owned a 1969 Chevrolet and a 1970 Chevrolet. The declaration page of the policy issued to Madden listed separately the itemized coverages for each of the two vehicles. Included for each car was $500 medical payment coverage (Coverage C) for each of which a premium of $3.19 was charged. In addition, uninsured motorist coverage (Coverage H) was listed for each car in the sum of $10,000 for each person and $20,000 for each accident. A premium of $3.00 was charged for this coverage on each of the cars.

On October 31, 1970, defendant’s wife, while driving one of the insured automobiles, collided with one Fields, an uninsured motorist. The collision was caused by Field’s negligence. As a result of injuries received in that accident, defendant’s wife died.

The parties have stipulated that defendant has incurred monetary damages in excess of $10,000 plus more than $500 in medical expenses. As a result, defendant claims that he is entitled to recover up to a limit of $20,000 under Coverage H ($10,000 for each automobile) and to be reimbursed up to $1000 under Coverage C ($500 for each automobile). Insurer, on the other hand, claims that these coverages are not to be “stacked” and that its liability is limited to a maximum of $10,000 under Coverage H and $500 under Coverage C, which sums it admittedly has already paid to defendant.

The trial court, ruling that there was not to be “stacking” of these coverages, held that plaintiff insurer was not liable to Madden beyond the $10,000 uninsured motorist coverage and $500 medical payments coverage on the vehicle involved in the collision. On appeal the Missouri Court of Appeals, Kansas City District, reversed, holding that “stacking” was permissible and that insurer was liable to Madden for damage under its uninsured motorist coverage in an amount not to exceed $20,000 and under its medical payments coverage in an amount not to exceed $1,000. On application for transfer, on grounds which included a contention that the decision of the Kansas City District was in conflict with the opinion of the Missouri Court of Appeals, St. Louis District, in Automobile Club Inter-Insurance Exchange v. Diebold, 511 S.W.2d 135 (Mo.App.1974), we ordered the case transferred. We now decide it as though here on direct appeal. Art. V, § 10, Mo.Const. We reverse and remand with directions.

Uninsured Motorist Coverage

Briefly stated, insurer argues that Madden is limited to a maximum of $10,000 uninsured motorist coverage because: (1) paragraph 4(a) of the Conditions section of the policy clearly and unambiguously limits liability under Coverage H to the specified coverage of $10,000 for each person; (2) paragraph IV(d) of the Insuring section of the policy (referred to by insurer as the separability clause) clearly and unambiguously makes the policy applicable to whichever insured vehicle was involved, thereby eliminating “stacking” of the two coverages; and (3) such result is not contrary to public policy and does not violate § 379.203, RSMo 1969, as amended by Laws, 1971, p. 398, § 1 and Laws, 1972, p. 1005, S.B. No. 458, § 1.

The only instance cited to or located by us in which an appellate court of Missouri previously has considered the right of an insured to “stack” uninsured motorist coverages on two or more automobiles when provided by a single combination policy, as well as the effect thereon of § 379.203, was in Automobile Club Inter-Insurance Exchange v. Diebold, supra, the decision with which the opinion by the Kansas City District is asserted to conflict. In that case a single policy insured two automobiles. A premium of $3.00 was charged for uninsured motorist coverage on each vehicle listed. The separability clause of the policy stipulated, as here, that the terms of the policy were to apply separately to each automobile where two or more automobiles were insured thereunder. However, unlike the policy in this case, that clause went on to state:

“Regardless of the number of automobiles insured under this'policy or other policies issued to the named assured or spouse by the exchange, if the automobile involved in an event making coverage applicable is one described in the declarations, the limit for each and every coverage afforded shall be that stated in the declarations for such automobile and the limits for other automobiles described in the declarations shall not be applicable. If the automobile involved in such event is not one described in the declarations, then the total limit of the exchange’s liability shall not exceed the highest applicable limit of liability or benefit for any one automobile described in this or such other policy.”

The court held that the foregoing separability clause was unambiguous and that by its terms Diebold was limited to one uninsured motorist coverage. He attacked the validity of the separability clause on the basis of § 379.203, citing Steinhaeufel v. Reliance Insurance Companies, 495 S.W.2d 463 (Mo.App.1973). The court, while recognizing that in Steinhaeufel it had held that when a state enacts a statute (like § 379.203) which mandates specified minimum uninsured motorist insurance coverage in all automobile liability policies, the insurer may not avoid its statutorily imposed liability by limiting clauses which would reduce its liability below the coverage required by the statute, decided Stein-haeufel to be inapplicable. It did so on the basis that § 379.203 requires only that each policy issued contain a clause providing uninsured motorist coverage with limits of $10,000 for one person and $20,000 for one accident, irrespective of the number of automobiles issued by that policy. The policy issued to Diebold was held to comply with that requirement.

In the more recent case of Galloway v. Farmers Insurance Company, Inc., 523 S.W.2d 339 (Mo.App.1975), the Kansas City District considered the “stacking” issue in a case involving two separate policies of insurance issued to plaintiff by the same company (rather than a single policy on two automobiles as in Diebold), each of which contained an uninsured motorist provision. Plaintiff Galloway was injured in a collision with an uninsured' motor vehicle. He brought suit and recovered judgment for $25,000 for his injuries. He then sought recovery under the two insurance policies issued to him by Farmers, one of which covered the 1969 Chevrolet which he was driving when injured, and the other a 1971 Chevrolet which was not involved in the accident. Each policy contained an uninsured motorist clause with coverage limits of $10,000 for one person and $20,000 for one accident. Plaintiff sought $10,000 on the basis of each of said policies.

Defendant resisted “stacking” of coverages, relying on Condition 8 of each policy which stated as follows:

“8. OTHER INSURANCE IN THE COMPANY
With respect to any occurrence, accident or loss to which this and any other insurance policy of policies issued to the insured by the Company also apply, no payment shall be made hereunder which, when added to any amount paid or payable under such other insurance policy or policies, would result in a total payment to the insured or any other person in excess of the highest applicable limit of liability under any one such policy.”

In response, plaintiff asserted that Condition 8, when applied to reduce or eliminate uninsured motorist coverage provided by another policy, was in conflict with § 379.-203 and, hence, invalid.

The trial court allowed “stacking”. The court of appeals affirmed, concluding that public policy as expressed in § 379.203 requires that every automobile liability insurance policy in Missouri contain uninsured motorist coverage in at least the statutory amount, undiminished by provisions such as Condition 8. This was true, said the court, irrespective of whether such separate policies were issued by different insurers or, as in that case, by the same insurer. In so holding, the court said, 523 S.W.2d at 342:

“Defendant next argues that Stein-haeufel is different from the case at bar in that Steinhaeufel involved one policy carried by the host driver and a second policy carried by the injured party, whereas both policies in the present case were issued to and carried by the injured party. Defendant contends that stacking was granted in Steinhaeufel only because the insurance company there attempted to credit against its own liability payments that its insured had received from another source. In further amplification of this contention, defendant argues that an insurer should ‘have no right, by virtue of its contract with the insured, to interfere with that insured’s separate rights under a different contract’ with a different company, but that it does have a right to contractually limit its obligation under its own policies, where more than one. This attempted distinction is without substance. Public policy requires that coverage in the statutory amount under each of the policies stand undiminished by contractual limitation, regardless of whether the policies are issued by the same or different insurers. Numerous cases have permitted stacking of coverage under multi-policies issued by the same company to the same party, despite limiting policy clauses of the type under consideration. State Farm Mutual Automobile Ins. Co. v. Harper, 125 Ga.App. 696, 188 S.E.2d 813 (1972); Clayton v. Alliance Mutual Casualty Co., 212 Kan. 640, 512 P.2d 507 (1973); Van Tassel v. Horace Mann Mutual Ins. Co., 296 Minn. 181, 207 N.W.2d 348 (1973); Boyd v. State Farm Mutual Automobile Ins. Co., 260 S.C. 316, 195 S.E.2d 706 (1973); Boetner v. State Farm Mutual Ins. Co., 34 Mich.App. 510, 191 N.W.2d 741 (1971); Crenwelge v. State Farm Mutual Automobile Ins. Co., 277 So.2d 155 (La.App.1973); Harrington v. Alabama Farm Bureau Mut. Cas. Ins. Co., 295 So.2d 210 (La.App.1974); Johnson v. Travelers Indemnity Co., 359 Mass. 525, 269 N.E.2d 700 (1971).”

The opinion expressly reserved and did not reach or decide the question, not present in that case, of what the result would be when a single policy covers two or more automobiles.

If we accept the premise of Galloway, and we do, that public policy as declared in § 379.203 mandates that when an insured has two separate policies containing uninsured motorist clauses, effect shall be given to both coverages without reduction or limitation by policy provisions, and that both coverages are available to those- insured thereby, the question necessarily arises as to what, if any, difference in applicability and effect of the statute there is when the insurance company elects to consolidate in a single combination policy coverages of two or more automobiles. May the insurer limit its liability to a single coverage, rather than for each car on which coverage is written and a premium paid, by the simple expedient of utilizing a single consolidated policy? Does limitation in this manner conform to the requirements of § 379.203?

We recognize that Diebold resolved this latter question by construing § 379.203 as requiring only that each policy provide minimum uninsured motorist coverage of $10,-000 for one person and $20,000 for one accident, regardless of the number of automobiles insured by that policy. In other words, according to Diebold, § 379.203 does not require that a policy insuring two or more automobiles provide separate and cumulative uninsured motorist coverage of each vehicle. On that basis the court held that clauses in the policy which had the effect of prohibiting “stacking” did not violate the statute and, hence, were not void as against public policy.

We are not convinced that such interpretation of § 379.203 is- correct. We find more persuasive the reasoning and result in cases construing similar statutes in other states. For example, in Tucker v. Government Employees Insurance Co., 288 So.2d 238 (Fla.1973), the Florida supreme court dealt with the issue of “stacking” of uninsured motorist coverages in a situation comparable to that with which we deal. We quote rather extensively from that case because what it says provides such a clear and reasonable interpretation of a statute like § 379.203.

Tucker purchased from the insurer an insurance policy which covered two automobiles. A separate premium was charged for uninsured motorist coverage on each of the two vehicles. Insured’s daughter, while a passenger in one of the insured automobiles, was injured by the negligence of an uninsured motorist. The issue presented was whether there was to be “stacking” of the two uninsured motorist coverages. Insurer contended there could not be, saying that a clear and unambiguous policy provision restricted liability to the specified limits of $10,000 for one person and $20,000 for one accident, regardless of the number of automobiles insured by the policy. After noting that the Florida uninsured motorist statute did not disclose any statutory basis for such a “stacking” exclusion in a policy issued to cover two or more automobiles, the court said, 288 So.2d at 241:

“The statute requires that each such policy cover any bodily injury loss of the insured or insureds caused by the negligence of any uninsured motorist. The statute provides that such coverage shall be included in any automobile liability policy covering ‘any motor vehicle’ in not less than the limits described in Section 324.021(7) ‘for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury . . . resulting therefrom.’ However, this coverage is obviously not restricted to the limits of F.S. Section 824.021(7), F.S.A., for one vehicle when more than one automobile is covered. The quotation from Mullís herein reflects the applicable law where only one automobile is covered. Other cases, e. g., Sellers v. United States Fidelity & Guaranty Co. (Fla.), 185 So.2d 689, text 692, hold that an insured is entitled to multiple uninsured motorist protection where he is the beneficiary under additional coverage. The total uninsured motorist coverage which the insured has purchased for himself and his family regardless of the number of vehicles covered by his auto liability policy inures to him or any member of his family when injured by an uninsured motorist. Moreover, according to Sellers v. United States Fidelity & Guaranty Co., supra, such total coverage is applicable to any uninsured motorist negligently injuring the insured or any member of his family covered thereby. The statute admits of no authority in the insurer by a provision in the policy to limit coverage on the presumed basis that the uninsured motorist would only have covered himself with the minimum auto liability coverage required under F.S. Section 324.021(7), F.S.A. The determinant of the amount of coverage is the total which the insured purchases pursuant to the authority of the statute and not that which the insurer otherwise attempts to limit by a provision in the policy.
“An insured under uninsured motorist coverage is entitled by the statute to the full bodily injury protection that he purchases and for which he pays premiums. It is useless and meaningless and uneconomic to pay for additional bodily injury insurance and simultaneously have this coverage cancelled by an insurer’s exclusion. The premium rates are standard and uniform on a per car basis. The insured’s full protection cannot be whittled away by exclusions or limitations which presuppose he only intended to cover himself on the presumed basis of single car auto liability coverage had the uninsured motorist purchased the same. Compare Dyer v. Nationwide Mutual Fire Ins. Co. (Fla.1973), 276 So.2d 6, and particularly see Employers Liability Assurance Corp., Ltd. v. Jackson (1973), 289 Ala. 673, 270 So.2d 806.
“We must not confuse uninsured motorist protection as inuring to a particular motor vehicle as in the case of automobile liability insurance. It is bodily injury insurance which protects against such injury inflicted by the negligence of any uninsured motorist.
’' — 7Tt is an anomaly to contend that if two automobiles are combined in the coverage of one auto liability insurance policy with uninsured motorist protection added that an exclusion of the kind here involved may be validly inserted, but that if a separate policy covered each automobile such exclusion is invalid. The mere form of a policy — a combination coverage — should not be the predicate for an exclusion of additional coverage.
“It was held in Sellers v. United States Fidelity & Guaranty Co., supra, that an insured protected by more than one policy of uninsured motorist insurance was entitled to recover under all such policies to the extent of his bodily injury by an uninsured motorist. The rationale of Sellers was that any contrary exclusionary clause to such recovery was invalid under the statute. The Mullís case, as well as Salas v. Liberty Mutual Fire Ins. Co., Fla.1972, 272 So.2d 1, follows the Sellers rationale. The weight of authority over the nation follows this rationale.”

Another case which deals clearly and forthrightly with the issue confronting us is Great Central Insurance Co. v. Edge, 292 Ala. 613, 298 So.2d 607 (1974). In that case the Supreme Court of Alabama considered the effect of their uninsured motorist statute (noted by the court to be similar to the Florida statute). After reviewing earlier Alabama decisions dealing with this question, the court said at 609:

“These cases appear to have rather firmly established the principle that the law of this state with respect to uninsured motorist coverage precludes an insurer from collecting a premium for certain coverage, then taking that coverage away by a limiting clause, under the rationale that a contrary holding would be in violation of the uninsured motorist insurance statute. * * * ”

Thereupon, after analyzing and relying upon the earlier case of Employers Liability Assurance Corp., Ltd. v. Jackson, 289 Ala. 673, 270 So.2d 806 (1972), the court said at 610, of 298 So.2d:

“Regardless of inclusion of language about limiting liability by clear and unambiguous language in Employer’s Liability, as a part of a quote from Sturdy, this court focused on the real issue, that being the fact that the insured had paid two premiums — that in effect the Jack-sons had purchased two policies of insurance on one form and that the public policy expressed in the uninsured motorists’ insurance statute prevented the insurance company from limiting its liability under such circumstances. Thus any suggestion that an insurer can limit such liability runs counter to the real holding. Therefore, the language from Employer’s Liability relied on by the defendant-appellant should be and is expressly disapproved. Cases should not and will not turn on how well the insurer drafts a limiting clause because the law does not permit insurers to collect a premium for certain coverage, then take that coverage away by such a clause no matter how clear or unambiguous it may be.”

As pointed out in Tucker, when a statute requires that uninsured motorist coverage be included in any and every policy covering any motor vehicle, it would be an anomaly if, after an insurer issues a policy providing such coverage on two or more listed vehicles and the owner pays therefor, the question of how much of the purchased coverage is available to an insured (and whether the company may limit the amount thereof available by restricting clauses) depends solely on whether the company elects to write such insurance in consolidated or separate policies. Nowhere in § 379.203 do we find language which will support such an interpretation or produce such a result. The emphasis of this statute (as was true of the Alabama and Florida statutes) is on covering any motor vehicle and the protection thereby afforded, not on whether the insurer elects to write separate policies on each car or to consolidate all coverages in a single policy with one policy number.

Accordingly, we hold that the public policy expressed in § 379.203 prohibits the insurer from limiting an insured to only one of the uninsured motorist coverages provided by a policy and that in this case both of such coverages, written on the two automobiles, are available to Madden, provided, of course, that insured is limited to recovery of damages suffered.

It follows that we need not consider whether paragraph 4(a) of Conditions and paragraph IV(d) of the Insuring section, insofar as they seek to restrict recovery to a single uninsured motorist coverage, are ambiguous or unambiguous. It makes no difference for, as Chief Justice Heflin wrote in Great Central, 298 So.2d at 610, “[c]ases should not and will not turn on how well the insurer drafts a limiting clause because the law does not permit insurers to collect a premium for certain coverage, then take that coverage away by such a clause no matter how clear or unambiguous it may be.” Insofar as Automobile Club Inter-Insurance Exchange v. Diebold, supra, expresses views contrary to what we herein hold, it no longer should be followed.

Medical Payments Coverage

This issue differs from that pertaining to uninsured motorist coverage in that no statute requires the inclusion of medical payment coverage in an automobile policy. Consequently, we are concerned with interpreting and giving effect to provisions of the insurance contract, not public policy considerations.

It is insurer’s position that the coverage applicable in this ease is Division 1 of Coverage C because Mrs. Madden was injured while driving an automobile described in the policy. The extent of that liability, says insurer, is clearly and unambiguously limited by Condition 6 to the “each person” amount specified in the Declarations section for medical payments coverage, namely, $500. It contends further that the policy of insurance involved is one contract, not two, and that the separability clause (IV(d)) merely establishes applicability of the various policy provisions to each automobile but does not provide for “stacking” of the medical payments coverages on each vehicle insured.

In response, Madden asserts that the effect of paragraph IV(d) is to create a situation which is exactly the same as if separate policies had been written to cover each of the vehicles insured, resulting in two separate medical payments coverages (Coverage C), both of which are available to him herein. In the alternative, he argues that if the combination policy issued by insurer herein does not clearly and unambiguously provide for separate coverages, as though there were separate policies, it, at the very least, is open to conflicting interpretations in which event the ambiguity is to be construed against the insurer and in favor of separate coverages.

The issue then is — what does this policy mean when it says that “[w]hen two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each, * * * ”? We conclude and hold that it is saying that each and every provision of the policy applies separately and independently to each vehicle listed, exactly as they would if repeated in separate policies on each such vehicle.

We arrive at this meaning for several reasons. In the first place each and every provision of the policy would apply to each vehicle listed even in the absence of IV(d). The inclusion of this separability clause was for a purpose and that necessarily was to make some change from the situation which otherwise would prevail. Therefore, instead of all provisions applying to the multiple vehicles on some kind of blanket or unified basis, they apply separately and individually to each, exactly as they would if in separate policies.

Secondly, the insurer charged two separate premiums for the medical payments coverage just as it would have done if separate policies had been issued. It is illogical to assume that insurer intended to collect and Madden intended to pay for single coverage ($500) identically the same premium as would have been charged for two separate medical payment coverages if separate policies had been issued. Consolidating the'two policies into one saves expense for the insurer and it logically follows that the separate insuring agreements were consolidated into a single policy for reasons of efficiency and economy, not for the purpose of reducing the coverages which would have been provided for the same money if separately issued.

Additionally, if the insurer had intended to limit medical payments coverage when two or more vehicles are covered in a single policy, it is logical to conclude that the company would have so stated in clear and unambiguous language. As the court said in Southwestern Fire & Casualty Co. v. Atkins, 346 S.W.2d 892, 895 (Tex.Civ.App.1961),

“ * * * If the insurance company intended to limit the medical payments to the amount of $500 which a policy on only one car would provide, it should have so stipulated in no uncertain language, and it should not have charged a premium on each ear separately. The policy has to be construed as a whole. In construing such provision together with the other provisions hereinabove referred to, we are of the opinion that appellee is entitled to recover the $500 additional medical payments for which he sues.”

Likewise in Virginia Farm Bureau Mutual Insurance Co. v. Wolfe, 212 Va. 162, 183 S.E.2d 145, 147 (1971), the court said:

“ * * * If the company had intended to limit the medical payment coverage to one automobile, and thereby remove the conflict between the limitation of liability and the separability clauses, it could have done so by the use of clear and unambiguous language. See Hansen v. Liberty Mutual Fire Insurance Company, 116 Ga.App. 528, 157 S.E.2d 768 (1967), where the policy stated in plain and unambiguous language that the $1,000 limit ■for each person is the limit of the company’s liability for all medical expenses incurred by each person, regardless of the number of automobiles to which the policy applies.”

Language used in the separability clause in the policy involved in Diebold, previously quoted herein, discloses that it is possible to clearly and explicitly spell out an intention to limit liability to single coverage even though multiple vehicles are listed. While we hold in this opinion, for reasons of public policy, that such clause is ineffective to restrict uninsured motorist coverage to less than that required by statute, it perhaps could limit medical payments coverage where purely contractual considerations are involved. That, however, has not been done in this case. Instead, the language employed with respect to limits of liability is exactly the same as that used when only a single vehicle is listed. It is not sufficient to limit Madden to a single medical payments coverage in this case.

The result we reach is in harmony with the nature of medical payment insurance coverage. Such coverage does not depend upon and is not based upon negligence or a finding thereof. Instead, it represents a contractual obligation to pay medical expenses incurred following injuries under specific conditions. As the court recognized in Dyer v. Nationwide Mutual Insurance Co., 276 So.2d 6 (Fla.1973), it has the character of accident insurance attached to the person of the insured and is independent of the automobile causing the damage. Expressing a similar view, the court in Government Employees Insurance Co. v. Sweet, supra, 186 So.2d at 96 said:

“The medical payments coverage applies to all medical expenses of the named insured while occupying or through being struck by an automobile, except an automobile owned by or furnished for the regular use of the named insured which is not described in the policy. This is the feature which makes medical payments insurance coverage an entirely different type of insurance than public liability or property damage insurance where coverage is attributed to the vehicle causing the damage. Medical payment provisions are closely akin to a personal accident policy; recovery is completely independent of liability on the part of the insured.’’ (Emphasis supplied.)

See also in this connection Allstate Insurance Co. v. Leviss, supra, and Allstate Insurance Co. v. Mole, 414 F.2d 204, 206 (5th Cir. 1969).

We hold that absent language specifically prohibiting such a result each separate premium paid for specified medical payments coverages produces for the insured that much additional protection for medical expenses incurred in a covered accident. Accordingly, we hold that the medical payment coverage provisions of this policy afford the defendant two separate coverages of $500 each, provided, of course, that recovery by insured is limited to medical expenses actually incurred.

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

MORGAN, BARDGETT, HENLEY and DONNELLY, JJ., concur.

SEILER, C. J., dissents in separate dissenting opinion filed.

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

SEILER, Chief Justice.

I respectfully dissent. The question of whether uninsured motorist coverage “stacks” was before the court of appeals in Automobile Club Inter-Insur. Exch. v. Diebold, 511 S.W.2d 135, 137-39 (Mo.App.1974). There, as here, the single policy insured two automobiles which were separately listed with separate premiums. There, as here, it was contended the statute, Sec. 379.203, RSMo 1969, rendered anti-stacking provisions illegal. The court refused so to hold. The reasoning of the court was as follows:

. . [DJefendant asks that we address the validity of the separability clause in light of our uninsured motorist statute requiring a minimum amount of coverage on each policy of automobile liability insurance issued in this state. The parties to an insurance contract are free to place limitations and restrictions on the insurer’s liability as the contracting parties may be willing to agree unless prohibited by statute or public policy . A contract of insurance is a voluntary contract and as long as the terms and conditions are not unreasonable or in violation of legal rules and requirements, the parties may incorporate such provisions and conditions as they see fit to adopt . . . Our uninsured motorist statute is a legislative mandate requiring that no automobile liability insurance be delivered or issued in this state unless uninsured motorist coverage is provided for not less than the limits set forth in the motor vehicle responsibility law, which in this case is $10,-000.00. This coverage was ‘designed to close the gap in the protection afforded the public under existing financial responsibility laws, and within fixed limits, to provide recompense to innocent persons injured by motorists who lack financial responsibility’ . . . There is no doubt that the policy which plaintiff issued to defendant provided the minimum statutory coverage. This court has held where such coverage has been provided, the insurer may not avoid its statutorily imposed liability by insertion in the policy of a limiting clause which restricts the insured from receiving the benefits of that coverage . , . However, in this case, the clause in question only limits plaintiff’s liability to the statutory minimum; it does not avoid the minimum altogether. Consequently, the separability clause does not undermine the purpose of Sec. 379.203.
“. . . Here, the insurer is seeking only to limit its liability for each policy to the statutory minimum. The separability clause involved herein is not the same as the ‘other insurance’ clause held invalid in Steinhaeufel [v. Reliance Ins. Co., 495 S.W.2d 463, 466 (Mo.App.1973)].
“Defendant infers that because the two cars were listed separately in the policy and separate premiums were charged for each, he has a right to separate coverage under the uninsured motorist provision. However, the statute makes no such demands on the insurer. Our uninsured motorist statute requires a minimum amount of coverage on each policy issued in this state. The policy in question is one contract, not two. Under it, two automobiles are insured. By its express provisions, the terms of the policy apply ‘separately’ to each automobile. We are not persuaded by the argument that plaintiff, by charging two separate premium payments for Diebold’s two automobiles has in essence issued two separate policies of insurance. While the issue in this case is one of first impression in the State of Missouri, most jurisdictions have resolved this issue in accordance with the decision here
“. . . This case involves only one policy which provided separate coverage for each insured automobile, neither of which was involved in the accident. Because the policy provides the minimum uninsured motorist coverage required by Missouri law, we do not find the separability clause to be void as against public policy. We agree with plaintiff that Sec. 379.203 contains no language which would require the insurer to provide more than the minimum coverage per policy.”

The principal opinion relies on a Florida case, Tucker v. Government Employees Insurance Co., 288 So.2d 238 (Fla.1973), and an Alabama case, Great Central Insurance Co. v. Edge, 292 Ala. 613, 298 So.2d 607 (1974), which allow stacking, as being more persuasive than our Diebold case, but I do not find them so. Neither the Florida case nor the Alabama case makes a thorough analysis of what was the intent and purpose of the legislature in requiring a minimum amount of uninsured motorist coverage in statutes such as our Sec. 379.203, which is, as I see it, the key issue, nor do these cases consider the illogical consequences of “stacking” which are pointed out later herein. The principal opinion also places much reliance on the proposition that stacking or non-stacking ought not to be resolved on the basis of mere form of policy used— whether two separate policies or a single combination family policy — but I do not believe this is the real issue before us. The real issue is what the legislative intention was and what the policy provides. In my opinion, the Diebold case correctly analyzes the matter and I would follow it. I would not overrule it.

The principal opinion accepts the premise of Galloway v. Farmers Insurance Company, Inc., 523 S.W.2d 339 (Mo.App.1975), that where an insured has two separate policies containing uninsured motorist coverage, one on one automobile and the other on another, effect shall be given to both coverages without reduction or limitation by policy provisions. This means that the coverage is cumulative or “stacked”, so that although the insured has only $10,000/$20,000 coverage on one car to begin with, as soon as there is a second car with $10,000/$20,-000 coverage on it, there immediately is $20,000/$40,000 coverage available to either automobile. Having made the assumption that only by cumulative coverage can the statute be satisfied, the principal opinion then concludes that the same result must obtain with a family policy which covers two automobiles at the same time.

The Missouri appellate courts first examined Sec. 379.203 in Sterns v. M.F.A. Mut. Ins. Co., 401 S.W.2d 510 (Mo.App.1966). After quoting and discussing at length various authorities, all of them consistent in their tenor on the subject, the court adopts in summary a statement found in 7 Am. Jur.2d, Automobile Insurance, Sec. 135, p. 461:

“The purpose of the statute making uninsured motorist coverage compulsory . is to give the same protection to a person injured by an uninsured motorist as he would have had if he had been injured in an accident caused by an automobile covered by a standard liability insurance policy . . [at 517, emphasis by court of appeals].

I fail to see how stacking of coverage is consonant with — let alone required by — a statute with such a purpose. On its face the statute does no more than call for certain minimum coverage in every automobile liability policy. I do not believe the legislature intended to do more than make sure that a Missouri insured who had taken out liability insurance himself would at the same time be protected against the motorist who had not done so. It seems somewhat farfetched to believe that the legislature intended to require that the minimum motorist coverage on a single automobile would be $10,000/$20,000 but that for two or more vehicles it would be cumulative, so that if an insured owned not two but twenty vehicles and had uninsured motorist coverage on each, he would have $200,-000/$400,000 uninsured motorist coverage on each. He would be much better off to collide with an uninsured motorist than with a responsible motorist who had complied with the statute and taken out $10,-000/$20,000 liability coverage.

Looking at the matter another way, under the stacking theory, where an insured has two cars, the statute would be satisfied by taking out only $5,000/$10,000 uninsured coverage on each car, because stacking would operate to make it $10,000/$20,000 per car. If he had three, $3,333/$6,667 per car would do; with four, $2,500/$5,000, and so on.

I doubt if either the insurer or the insured harbored any of the foregoing expectations. In the policy before us, for example, the premium for the $10,000 uninsured coverage on automobile No. 1 is $3.00. The premium on automobile No. 2 for the same coverage is also $3.00. Under the principal opinion this means that the $3.00 which purchased $10,000 coverage on automobile No. 1, suddenly by virtue of a second automobile being added for an additional $3.00, now purchases $20,000 coverage. With a premium of $3.00 per automobile, there is no reason to suppose either does more than stand on its own bottom. Otherwise, the insurance company is forced to expand its uninsured motorist coverage every time the insured adds another vehicle to his policy, not only by the coverage specifically provided on the vehicle added for which the same premium is charged, but also by increasing the coverage on all vehicles previously covered by the policy without any additional premium for the increased coverage. Insurance premiums are usually arrived at by an actuarial allocation of risks, but under the theory adopted by the principal opinion, the insurer is a gratuitous benefactor with no way to calculate its exposure on the vehicles first insured as other vehicles are added to the policy. The insurer cannot tell what to charge for the first car because there is no way to foretell how many additional cars the insured may acquire during the policy period and each time he adds another car the insurer’s exposure is increased on all the automobiles ahead of it on the policy. The insurer is presented with an after-the-fact increase in risk and exposure after the original premium has already been fixed.

A family owning, operating and insuring more than one automobile obviously offers greater risks to an insurer. A family usually owns more than one automobile because it wishes or needs to drive more. Mileage is an important factor in calculating risks. The increased automobile use (which may involve simultaneous use of several cars) poses a greater likelihood of damages. A multi-vehicle policy will require multiple premiums because there are multiplications of risks, but it does not follow that successive premiums should provide cumulative exposure as to amount of liability on each vehicle. Stacking of coverage ignores this economic and actuarial reality.

The principal opinion mentions that the law does not permit insurers to collect a premium for certain coverage and then take that coverage away by a limiting clause, quoting from Great Central Insurance Co. v. Edge, supra. But this assumes that the coverage provided is stacked or cumulative, whereas that is the point at issue. If all the statute requires is that the policy provide minimum uninsured motorist coverage, regardless of the number of automobiles insured, then no coverage is taken away by giving effect to the policy provisions which prevent stacking.

It should be noted also that the language of the statute speaks in terms of contract provisions of the policy. It refers to a policy “for the protection of persons insured thereunder ” (emphasis mine). This, means the parties to the contract can agree who is insured thereunder and what the extent is of the insurance. The statute does not require that the parties must agree uninsured motorist coverage must stack or that they cannot agree otherwise. So long as the policy provides the required minimum coverage, I believe the statute leaves unimpaired the general rule that the parties can contract for risks and coverage as they see fit, adjusting the premiums accordingly. Under the contract before us, I do not believe the parties contracted for stacked risks and coverage.

I find nothing unfair about the insurer charging a separate premium for uninsured motorist coverage on a second or third automobile, anymore than would be the case in the charging of a separate premium for the ordinary public liability coverage on the second or third car. No one expects an insurance company to take on the risks of an additional automobile without being entitled to collect a premium therefor.

So long as there is coverage of at least $10,000 per automobile, as there is here, I see no reason why the insurer cannot provide, as I believe it has done by the policy provisions before us, that the maximum liability to its insured or spouse is whatever the stated coverage is on the automobile which is involved in the accident. I therefore dissent.

      . Relevant portions of the foregoing paragraphs, as well as those of other policy provisions pertinent to the uninsured motorist issue, are as follows:

        “Insuring Agreements

      “I * * *
      “Coverage H — Uninsured Motorist Coverage. To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile;

        * * * * * *
      “III. Definition of Insured. * * * (c) With respect to the insurance under coverage H the unqualified word ‘insured’ means the first named natural person and not a corporation, firm or partnership, and, while residents of the same household, the spouse of the first named natural person and the relatives of either.
      “IV. Automobile Defined, Trailers, Private Passenger Automobile, Two or More Automobiles, Including Automatic Insurance. * * * (d) Two or More Automobiles. When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each, * *

        “Conditions

        ******

      “4. Limits of Liability — Coverages A and H. (a) The limit of bodily injury liability stated in the declarations as applicable to ‘each person’ is the limit of the company’s liability for all damages, including damages for care and loss of services, arising out of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by one person as the result of any one accident; the limit of such liability stated in the declarations as applicable to ‘each accident’ is, subject to the above provision respecting each person, the total limit of the company’s liability for all damages, including damages for care and loss of services, arising out of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by two or more persons as the result of any one accident. ■ * * * ”

      . That portion of the amended statute which is pertinent to the uninsured motorist coverage issue in this case provides as follows:
      “1. No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits for bodily injury or death set forth in section 303.030, RSMo, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom. * * * ”
      Subsequent references to § 379.203 are to this amended section.

      . In Steinhaeufel the court considered a clause which undertook to make the uninsured motorist coverage excess insurance, available only to the extent it exceeded coverage limits in other applicable policies. The court held such provision void under the statute.

      . The reference to Mullís in the foregoing quotation is to Mullis v. State Farm Mut. Auto Ins. Co., 252 So.2d 229 (Fla.1971).

      . The reference to Sturdy in the foregoing quotation is to Sturdy v. Allied Mut. Ins. Co., 203 Kan. 783, 457 P.2d 34 (1969).

      . There is a split of authority as to whether clauses such as those relied on herein by insurer to limit availability of uninsured motorist coverage are ambiguous or unambiguous and as to the effect of an insured paying for such coverage on multiple vehicles. An-not. 28 A.L.R.3d 551 (1969). Numerous cases, cited in the foregoing annotation, arrive at the same result we reach on the basis that the separability and limits of coverage clauses are ambiguous. Cases decided subsequent to the annotation which also allow stacking of uninsured motorist coverages include Moomaw v. State Farm Mut. Auto. Ins. Co., 379 F.Supp. 697 (S.D.W.Va.1974); Cunningham v. Insurance Co. of N. America, 213 Va. 72, 189 S.E.2d 832 (1972); Blakeslee v. Farm Bureau Mut. Ins. Co. of Mich., 388 Mich. 464, 201 N.W.2d 786 (1972); and Citizens Mut. Ins. Co. v. Turner, 53 Mich.App. 616, 220 N.W.2d 203 (1974).

      . Policy provisions relevant to this issue, in addition to IV(d) which is set out in footnote 1, supra, are:

        “Insuring Agreements

        “Coverage C — Automobile Medical Payments. * * *

        “Division 1. To or for each person who sustains bodily injury, sickness or disease, caused by accident, while in or upon or while entering into or alighting from the automobile, provided the automobile is being used by the named insured or his spouse if a resident of the same household, or with the permission of either; or “Division 2. To or for each insured who sustains bodily injury, sickness or disease, caused by accident, while in or upon or while entering into or alighting from, or through being struck by, an automobile.

      * * * * * *

        “Exclusions

        ******

      “(k) under coverage H and division 2 of coverage C, to bodily injury to or sickness, disease or death of an insured sustained while in or upon or while entering into or alighting from or being struck by an automobile owned by any insured.

      ⅜ * * * * *

        “Conditions

      * * * * * *
      “6. Limit of Liability — Coverage C. The limit of liability for medical payments stated in the declarations as applicable to ‘each person’ is the limit of the company’s liability for all expenses incurred by or on behalf of each person, including each insured, who sustains bodily injury, sickness, disease or death as the result of any one accident.” (Emphasis supplied.)

      . The conclusion we reach is supported by the following additional authorities: Harris v. Employer’s Mut. Cas. Co., 33 Colo.App. 314, 519 P.2d 1227 (1974); Allstate Ins. Co. v. Leviss, 71 Misc.2d 628, 336 N.Y.S.2d 757 (Sup.1972); Gov’t Employees Ins. Co. v. Sweet, 186 So.2d 95 (Fla.App.1966); Travelers Indem. Co. v. Watson, 111 Ga.App. 98, 140 S.E.2d 505 (1965); Cent. Assurity Ins. Corp. v. Elder, 204 Va. 192, 129 S.E.2d 651 (1963); Kansas City Fire & Marine Ins. Co. v. Epperson, 234 Ark. 1100, 356 S.W.2d 613 (1962). See also Annot. 21 A.L.R.3d 900 (1968); 8 Appleman’s Insurance Law & Practice 188 (Cum.Supp.1973).

      . Comment, Uninsured Motorist Insurance, 48 Cal.L.Rev. 516 (1960); Anno., Rights and Liabilities under “Uninsured Motorist” Coverage, 79 A.L.R.2d 1252; Murphy and Netherton, Public Responsibility and the Uninsured Motorist, 47 Georgetown L.J. 700 (1959); Comment, Uninsured Motorist Coverage, 12 Drake L.Rev. 119 (1962).


author: FINCH, Judge.

text:
    STATE ex inf. Hugh C. ROBERTS, Jr., Prosecuting Attorney of St. Francois County, Relator, v. Kenneth BUCKLEY, Sheriff of St. Francois County, Respondent.
    No. 59169.
    Supreme Court of Missouri, En Banc.
    Feb. 9, 1976.
    Rehearing Denied March 8, 1976.

      Hugh C. Roberts, Jr., pro se.
    John A. Schneider, Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, Hillsboro, for respondent.
   FINCH, Judge.

This is an original proceeding in quo war* ranto wherein the prosecuting attorney of St. Francois County seeks ouster of respondent from the office of sheriff of that county. The information filed alleges forfeiture of office by reason of the appointment of a relative within the fourth degree in violation of Art. VII, § 6, Mo.Const. We order ouster.

The facts are not in dispute. Respondent Buckley was elected sheriff of St. Francois County in November 1972 and assumed that office on January 1,1973. Acting pursuant to § 57.250, respondent appointed one Fred Fisher as a deputy sheriff (process server), which appointment was approved on January 15,1973, by the Honorable J. 0. Swink, the judge of the circuit court. Fisher then took the oath of office and thereafter served in that capacity until he resigned on July 16, 1976. Fisher was a brother of the late Louis Fisher, father of Peggy Lou Buckley, the wife of respondent sheriff. Hence, he is the uncle of Mrs. Buckley and is the uncle of respondent by marriage (by affinity).

At the outset, we note that Art. VII, § 6, Mo.Const., has been held to be self-enforcing. State ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941 (1938); State ex inf. Norman v. Ellis, 325 Mo. 154, 28 S.W.2d 363 (1930). Quo warranto is an appropriate remedy for enforcing a resulting forfeiture. State ex inf. Danforth v. Orton, 465 S.W.2d 618 (Mo. banc 1971); State ex inf. McKittrick v. Wymore, supra. Respondent advances three reasons why he has not violated Art. VII, § 6, and why he should not be ousted in this quo warranto proceeding.

First, respondent argues that this court does not have jurisdiction over this proceeding for the reason that an adequate remedy at law exists. He points to §§ 106.-220 through 106.290 which provide a method of removal by proceedings in the circuit court and contends that such procedure should be followed. This same contention was raised in State ex inf. McKittrick v. Wymore, supra, and later in State ex inf. Danforth v. Orton, supra, and in both cases the proposition was ruled adversely to respondent’s position. We adhere to those holdings.

In connection with his contention that this proceeding in quo warranto is inappropriate, respondent also calls attention to Rule 84.22 which provides that “no original remedial writ, except habeas corpus, will be issued by an appellate court in any case wherein adequate relief can be afforded by an appeal or by application for such writ to a lower court.” It is true that this court could have declined to issue the writ on the basis of Rule 84.22. In most instances where an extraordinary writ is sought, this court does decline to consider the application if not previously made to a lower court in accordance with Rule 84.22. However, the rule may be waived and in this case that was done when the court permitted filing of the information and ordered summons to issue. The rule is procedural and does not go to the court’s jurisdiction.

Respondent’s second proposition is two-pronged. He says that Art. VII, § 6 is inapplicable because (a) he “did not name or appoint Fred Fisher ‘by virtue of his office or employment’ ” and (b) Fisher is not “any relative within the fourth degree, by consanguinity or affinity” and, hence, his appointment did not violate the constitutional provision.

The assertion that respondent did not name or appoint Fred Fisher is based on the theory that § 57.250 limits the control the sheriff has over appointment of his deputies in that approval by the circuit judge is required. He argues that the constitutional provision applies only when the one naming or appointing has absolute and uncontrolled discretion in making the designation. He argues that this does not exist where, as here, the appointment was subject to approval by the circuit judge. We disagree. Sec. 57.250 states that the appointment is to be made by the sheriff and that is what occurred. The fact that the circuit judge had to approve the selection made does not prevent the appointment from falling within the prohibition of Art. VII, § 6. This is demonstrated by this court’s decision in State ex inf. McKittrick v. Whittle, 333 Mo. 705, 63 S.W.2d 100 (1933). In that case a first cousin by affinity of a school board director was named or appointed as a teacher for that district. The board member, who was a cousin of the teacher, plus another board member, voted for the appointment. The third member voted against such employment. In ruling that the board member had forfeited his office under such circumstances, the court said:

“ * * * Respondent also argues that the amendment is only directed against officials having all the right (power) to appoint. We do not think so. The question must be determined upon a construction of the amendment. It is not so written therein. The amendment is directed against officials who shall have (at the time of the selection) ‘the right to name or appoint’ a person to office. Of course, a board acts through its official members, or a majority thereof. 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. In this case* it is admitted that respondent had such power at the time of the selection, and that he exercised it by naming and appointing his first cousin to the position of teacher of the school in said district.” 63 S.W.2d at 101, 102.

Nor do we find any merit in the contention that Fisher was not related to respondent within the fourth degree. He was not related by blood (consanguinity) but he was related by marriage (affinity). As this court noted in State ex inf. Norman v. Ellis, supra, 325 Mo. 154, 28 S.W.2d at 366:

“Affinity is defined as a legal relationship which arises as the result of marriage ‘ * * * between each spouse and the consanguinal relatives of the other.’
“That is, the husband is related by affinity to his wife’s relatives in the same way that she is related to them by blood, and she is related to his relatives by affinity in the same way that he is related to them by blood.”

Such relationship is within the fourth degree. Respondent was related to Fisher in the third degree under the civil law method of computing such relationships, this being the method applied in earlier Missouri cases. This conclusion is in harmony with the conclusion in State ex inf. McKittrick v. Whittle, supra, that persons who were first cousins by affinity were related within the fourth degree.

Finally, respondent asserts that Art. VII, § 6, Mo.Const. is unconstitutional under the due process clause of the fifth amendment to the U. S. Constitution (as applied to the states by the fourteenth amendment) and under the equal protection clause of the fourteenth amendment thereto. These contentions are based on the premise that Art. VII, § 6, is not sufficiently definite to provide him with notice that his actions with respect to designating Fred Fisher as a deputy sheriff would violate that provision of the Missouri Constitution. We overrule these contentions. Art. VII, § 6, is short, clear and specific. If any public officer or employee, acting by virtue of the authority of his position, names or appoints to public office or to public employment any relative within the fourth degree, whether by blood or by marriage, he forfeits his office. There have been numerous cases construing this constitutional provision. If respondent was at all in doubt, which he should not have been, he could have sought an opinion from the attorney general.

We hold that respondent appointed Fred Fisher, his uncle by affinity, as deputy sheriff (process server) for St. Francois County and that he thereby violated Art. VII, § 6, Mo.Const. Accordingly, he has forfeited his office of sheriff of St. Francois County. He is now usurping such office and his ouster must go as a matter of course.

It is ordered that respondent is ousted from the office of sheriff of St. Francois County until the end of his present term expiring December 31, 1976, and the costs of this proceeding are taxed against him.

All concur.

      . The complete text of Art. VII, § 6, Mo. Const, is as follows:
      “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.”

      . The complete text of § 57.250 is as follows:
      “The sheriff in counties of the third and fourth classes shall be entitled to such number of deputies and assistants, to be appointed by such official, with the approval of the judge of the circuit court, as such judge shall deem necessary for the prompt and proper discharge of his duties relative to the enforcement of the criminal law of this state. The judge of the circuit court, in his order permitting the sheriff to appoint deputies or assistants, shall fix the compensation of such deputies or assistants. The circuit judge shall annually, and oftener if necessary, review his order fixing the number and compensation of the deputies and assistants and in setting such number and compensation shall have due regard for the financial condition of the county. Each such order shall be entered of record and a certified copy thereof shall be filed in the office of the county clerk. The sheriff may at any time discharge any deputy or assistant and may regulate the time of his or her employment. (L. 1945 p. 1547 § 2; L. 1945 p. 1562 § 2; L. 1949 H.B. No. 2015)”
      All statutory references are to RSMo 1969 unless otherwise indicated.

      . All references to rules are to Supreme Court Rules, V.A.M.R.

      . The method of computing such relationship under the civil law method and the canon law method is explained in State v. Thomas, 351 Mo. 804, 174 S.W.2d 337, 340 (1943):
      “There are two methods of reckoning degrees of consanguinity: The canon law, and the civil law. Under the canon law the number of generations is counted from the common ancestor down to the fartherest of the two descendants whose degree of relationship is to be ascertained. Under the civil law the count ascends by generations from either of the two relatives to the common ancestor and thence down the collateral line to the other. The reckoning by the civil law would be just double that under the canon law, as applied to relatives removed an equal number of generations from the common ancestor. Thus, brothers would be related in the 1st degree under the canon law, and in the 2nd degree under the civil law; first cousins similarly in the 2nd and 4th degrees; second cousins in the 3rd and 6th degrees, etc. But the child of one of two first cousins (as here) would be related to the other cousin in the 3rd or 5th degree, respectively, because one generation further removed from the common ancestor.”


author: HOLMAN, Presiding Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Relator-Appellant, v. CITY OF WASHINGTON, Missouri, Defendant-Respondent.
    No. 59028.
    Supreme Court of Missouri, Division No. 1.
    Feb. 9, 1976.
    Motion for Rehearing or to Transfer Denied March 8, 1976.

      Bruce A. Ring, Chief Counsel, Mo. State Highway Dept., Jefferson City, John H. Gladden, Asst. Counsel, Joplin, for relator-appellant.
    L. B. Eckelkamp, Jr., Joseph M. .Ladd, Jenny, Cole & Eckelkamp, Sidney A. Thayer, Jr., Washington, for defendant-respondent.
   HOLMAN, Presiding Judge.

The Missouri State Highway Commission (hereinafter called plaintiff) filed this suit against the City of Washington seeking to recover one-half of the amount it expended in obtaining the right-of-way for Route 100 as constructed through said city. It was alleged that defendant contracted to reimburse plaintiff for one-half of said right-of-way cost but that defendant failed and refused to pay the same. A trial resulted in a verdict for plaintiff in the amount of $29,600.

Defendant’s motion for a new trial was sustained by the court for the following reasons:

“(1) The alleged contract between the parties is ultra vires because it is in violation of Section 26(a) of Article 6 of the Constitution of the State of Missouri;
“(2) The alleged contract between the parties is ultra vires because it does not specify the consideration as required under Section 432.070 of the Revised Statutes of Missouri.”

Plaintiff has duly appealed. We have appellate jurisdiction because issues here presented involve the construction of constitutional provisions. Art. V, Sec. 3, Mo. Const. V.A.M.S. We reverse and remand with directions to reinstate the judgment.

The contract in question was admitted in evidence. It is rather detailed and covers nine pages of the transcript. Therein .the plaintiff agreed to construct the highway through the City of Washington along a route described in the contract. The contract also contained the following:

“15. Commission and City shall each pay 50% of the right-of-way costs. Commission will, in the first instance, pay for all right-of-way or other property interests required within the limits of City in connection with this improvement and will make requisition upon the City from time to time for reimbursement for such payment for its share of the costs of right-of-way, and, upon receipt of such requisition, the City agrees promptly to pay Commission the amount of the same. The estimated share of the cost of right-of-way to be paid by the City is $32,500. At the signing of this agreement City has appropriated and encumbered to this project the full amount of $32,500, so that the acquisition of right-of-way may begin.”

Also admitted in evidence was Ordinance No. 3191 adopted by the council of defendant city which authorized the mayor and city clerk to sign the said contract. On behalf of plaintiff the contract was executed by the chairman and secretary of the Commission. It was executed by the City on December 20, 1965, and by the Commission on January 7, 1966.

Portions of the right-of-way were acquired from time to time during the years 1967, 1968 and 1969. The total cost was $59,200. Over the objection of plaintiff the court permitted a showing by defendant that plaintiff had been reimbursed by the federal government for one-half of said right-of-way cost and that on January 12, 1968, plaintiff suspended its policy of requiring urban areas to participate in right-of-way costs.

Art. VI, Sec. 26(a), Mo.Const. V.A.M.S. reads as follows: “No county, city, incorporated town or village, school district or other political corporation or subdivision of the state shall become indebted in an amount exceeding in any year the income and revenue provided for such year plus any unencumbered balances from previous years, except as otherwise provided in this constitution.” We will first consider whether the trial court ruled correctly in granting a new trial on the first ground of defendant’s motion, i. e., that the contract was ultra vires on the part of defendant because in violation of the quoted constitutional provision. We have concluded that the court erred because there is no evidence in the transcript to support that ruling.

The year to be considered in ruling this point is 1966 because obviously the contract did not become binding upon either party until it had been executed by both. Although the City executed the contract in December, 1965, it was not executed by the Commission until early January, 1966. The question presented, therefore, is whether the defendant, by reason of the contract, became indebted in an amount exceeding the income and revenue provided for the year 1966 plus any unencumbered balances from previous years. This defense was pleaded by defendant and hence the burden was upon it to prove facts to support it. There is nothing in the evidence to show the amount of defendant’s revenues for 1966 or any other year.

The only effort of defendant to prove its financial condition was an offer of the minutes of the meeting of the council on December 20, 1965, in which the following appears: “ ‘Councilman Bocklage said that they have not determined where the $32,500 for the City’s part of the rights of way of Route 100 is coming from. Mayor Strub-berg said the City will probably have to vote a bond issue as they did for Route 47.’ ” The court sustained an objection to that portion of the exhibit. In its brief defendant contends that the court erred in excluding that evidence and that we should affirm the granting of the new trial for that reason. The difficulty with that contention is that the exclusion of that evidence was not complained of in the motion for new trial and therefore the point is not preserved for review.

The other reason assigned by the trial court for granting a new trial is that the contract was ultra vires because it did not specify the consideration as required by Section 432.070. That section reads, in part, as follows: “No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless . . and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.”

It should be noted that the contract did not specify the exact amount of money defendant would be required to pay thereunder. Obviously it could not so specify because the amount would depend upon future developments which were unknown to either party. It provided that defendant would pay 50% of the right-of-way costs and estimated the amount to be $32,500. The actual amount as later ascertained was $2,900 less than the estimate.

In support of the trial court’s ruling on this point defendant relies primarily on the case of Bride v. City of Slater, 263 S.W.2d 22 (Mo.1953). In that case a fuel oil dealer sought to recover for oil furnished under a contract which provided that the price “shall be seller’s market price then existing.” The trial court sustained a motion to dismiss plaintiff’s petition on the ground that the contract failed to state a definite price and therefore violated Section 432.070. In affirming, this court observed that the price was entirely conditioned on the will of the seller. In discussing the question we stated that, “Statutes requiring municipal contracts to be in writing usually are construed to be mandatory, and a strict compliance therewith is required in order to bind a city. ... In speaking of the purpose of the statute, 432.070, supra, this court said in the early case of Woolfolk v. Randolph County, 83 Mo. 501, the manifest purpose of the requirement is that the terms of the contract shall, in no essential particular, be left in doubt, or to be determined at some future time, but shall be fixed when the contract is entered into. This was one of the precautions taken to prevent extravagant demands, and to restrain officials from heedless and ill-considered engagements. . A court should unhesitatingly enforce compliance with all mandatory legal provisions designed to protect a municipal corporation and its inhabitants. Inasmuch as municipal corporations represent the public, they, themselves, are to be protected against the unauthorized acts of their officers and agents.” 263 S.W.2d 26.

Plaintiff, on the other hand, mainly relies on the case of Burger v. City of Springfield, 323 S.W.2d 777 (Mo.1959). In Burger plaintiff had been employed by the city to represent it in negotiating for purchase of the water works, the contract providing that he should receive “a reasonable compensation for services and expenses to be fixed by the council upon completion of his services.” The trial court sustained a motion to dismiss. We reversed and remanded, stating, “The mere fact that, at the time the contract was executed, the amount to be paid by the City could not then be determined in dollars and cents did not adversely affect the validity of the contract. . . . The contract in question being in writing and expressly providing for reasonable compensation for services to be rendered and which have been rendered was sufficiently definite and certain as to the consideration to be paid so as to constitute a valid contract under Section 432.070, supra.” 323 S.W.2d 784, 785.

We think the instant case is clearly distinguishable from Bride upon the contract terms. Here the terms are definite and certain and a standard is provided by which the consideration to be paid by defendant would be definitely determined. The right-of-way could be acquired by plaintiff either by purchase or condemnation. It is reasonable to assume that in acquiring by purchase plaintiff would not pay more than the fair market value therefor. As to that acquired by condemnation the property owner was entitled to “just compensation” and the statutes provide a definite procedure for ascertaining such. In other words, it may be said that defendant knew that plaintiff could acquire the right-of-way only in the manner provided by law and agreed to pay 50 percent of the cost of obtaining the designated right-of-way pursuant to the constitutional and statutory provisions which controlled plaintiff.

It is our view that the consideration stated in the contract before us is certainly as definite as that stated in the contract in Burger. We think the Burger decision is controlling in this case and on the basis thereof we rule that the contract in question did not violate Section 432.070.

What we have heretofore said will indicate our view that neither of the assignments designated by the trial court for granting the new trial were sufficient to warrant that action. Defendant, however, seeks to support the granting of the new trial by another point which actually relates to two affirmative defenses. It contends that the contract was contrary to plaintiff’s policy not to require cities to share right-of-way costs on a relocation project and that the contract resulted from coercion. We observe that these affirmative defenses are not such as would warrant this court in declaring the contract invalid as a matter of law because they depend on factual determinations. It should be noted also that there is no suggestion as to the manner in which the trial court erred in regard to these defenses.

Our disposition of this point is such that we need not consider serious questions concerning the sufficiency of the pleadings and proof regarding these defenses. This, because it is our view that these affirmative defenses were abandoned at trial and hence are not preserved for appellate review. Our conclusion in that regard is based on the fact that defendant did not request instructions submitting those defenses.

It is an elementary rule that failure to request an instruction thereon constitutes an abandonment of an affirmative defense. See Yeager v. Wittels, 517 S.W.2d 457[11] (Mo.App.1974), Studt v. Leiweke, 100 S.W.2d 30[13] (Mo.App.1937), Mock v. Missouri Union Insurance Company, 328 S.W.2d 61[3] (Mo.App.1959) and Eastman Kodak Stores, Inc. v. Summers, 377 S.W.2d 476[4] (Mo.App.1964).

Plaintiff’s case was submitted by the following instruction: “Your verdict must be for plaintiff if you believe:

“First, defendant agreed to pay to plaintiff fifty percent (50%) of the cost of acquisition of right of way inside defendant’s corporate limits, and
“Second, defendant failed to pay to plaintiff fifty percent (50%) of the cost of acquisition of right of way for Route 100 inside defendant’s corporate limits, and
“Third, plaintiff was thereby damaged.”

The only instruction offered by defendant was a converse of plaintiff’s submission and it was given by the court. Therefore, defendant is in no position to contend that the affirmative defenses under consideration would support the new trial order since those defenses were abandoned at trial.

The foregoing will indicate our view that there was no valid basis for granting a new trial in this case.

The order granting a new trial is accordingly reversed and the case is remanded to the trial court with directions to reinstate the judgment for plaintiff.

All concur.

      . All statutory references are to RSMo 1969, V.A.M.S.


author: HENRY I. EAGER, Special Commissioner.

text:
    In the Matter of the ESTATE of Adrian LAMB, Deceased.
    No. 58857.
    Supreme Court of Missouri, Division No. 2.
    Feb. 9, 1976.
    Rehearing Denied March 8, 1976.
    John Ashcroft, Asst. Atty. Gen., Jefferson City, for appellant.
    Jack M. Chasnoff, Clayton, for respondent.
   HENRY I. EAGER, Special Commissioner.

In this case the Director of Revenue appeals from an order of the Circuit Court reversing the order of the Probate Court of St. Louis County which assessed an inheritance tax upon a portion of the Executor’s commission or fee. No facts are disputed. The case involves a construction of the Revenue Laws. Section 473.153(1), RSMo 1969, sets out the minimum fee schedule of executors; under this the compensation would have been $6,076.19. In Mr. Lamb’s will the following appeared, as clause 8(b): “I give to JOSEPH L. TUCKER, my Executor hereinabove named, the sum of Fifteen Thousand Dollars ($15,000.00) as compensation for his services in connection with this my Last Will, in lieu of all statutory commissions and compensations to which he might otherwise be entitled.” This was followed by a provision for attorneys’ fees to him or any partner for “any professional work.”

Section 145.050 of our statutes is as follows: “If a testator devises or bequeaths property to one or more executors or trustees in lieu of their commission or allowances, or makes them his devisees or legatees to an amount exceeding the commission or allowance prescribed by law for an executor or trustee, the excess in value of the property so bequeathed above the amount of commission or allowances prescribed by law in similar cases shall be subject to the tax imposed by this chapter.” The Probate Court assessed an inheritance tax on $8,923.81, being the difference between the statutory minimum fee and the $15,000 specified in the will; that tax was $446.19. That Court also assessed an additional tax of $23.52, because the will provided that the taxes should be paid out of the residuary estate which, it ruled, constituted an additional bequest to the Executor of the $446.19. The Executor filed exceptions; they were overruled and an appeal was taken to the Circuit Court.

At this point we refer again to § 473.-153(1). It is long and we shall not quote it. In addition to the minimum fee schedule it provides: that a provision by will for the compensation of an executor “shall be allowed and taken as his full compensation” unless he renounces it; that where reasonable compensation is in excess of the minimum provided in the schedule the Court shall allow such additional compensation as will make it “reasonable and adequate.” There was no allowance here of additional compensation (the Executor obviously accepted the $15,000) and there was no finding concerning the amount of reasonable compensation. There was no evidence in the Probate Court concerning the amount of a reasonable fee.

The issue was (and is): Was the difference between the statutory minimum fee and the $15,000 given by will, taxable under § 145.050 as a bequest in “an amount exceeding the commission or allowance prescribed by law?” Appellant says it was, respondent says it was not. We shall refer to another rather incidental point later. It seems clear that the purpose of such a statute was to prevent a testator from evading or thwarting the inheritance tax by giving substantial (and perhaps excessive) sums designated as fees to one or more of his principal beneficiaries, with the result of eliminating inheritance taxes to that extent. Various states have somewhat similar statutes. The trial court wrote no opinion.

Appellant says that here the minimum statutory fee was the amount “prescribed by law” and that any excess over that of a fee given by will is taxable, because the latter is merely permitted by law and not “prescribed.” Respondent says that this provision of the will is not a bequest but a mere fixing of compensation, and that it was not in excess of the amount “provided by law” under § 473.153(1). (Note the difference between “provided” and “prescribed”; respondent does not always distinguish between the two.) We rule that this was a “bequest” within the meaning of § 145.050. The word “bequeath” was not used but “give” is certainly the equivalent, and any distinction would be rather technical. The word should be construed in its ordinary sense and meaning. In Black’s Law Dictionary, Rev. 4th Ed., it is defined, among other definitions, as “to give personal property by will to another.” (Italics ours.) Moreover the words “in lieu of” would seem also to indicate a bequest to be effected regardless of the prescribed statutory fees. The argument that this was a mere agreement on a fixed fee is not persuasive. We are not concerned here with what the Executor could and did receive as his compensation, but solely with the impact of the Missouri Inheritance Tax. The statute certainly puts all parties on notice that a portion of the fee may be subject to the tax. The statute taxes that part of the fee above “the commission or allowance prescribed by law.” So far as any “agreement” is concerned the will speaks for itself, — as a gift, and we cannot read other meanings into it.

Respondent says, in substance, that even if this is a bequest, any such amount bequeathed to the Executor is an “allowance” provided by law, because § 473.153(1) authorizes such allowances as a “provision for compensation.” That part of § 473.-153(1) (as other parts) obviously refers to the amount which the executor may receive and it has no relationship to any matter of inheritance tax; and it does not really constitute an “allowance” at all, but is a mere permission for the creation of a fixed compensation. It is certainly not an allowance “prescribed” by law. The word “prescribe” is defined as “to dictate, direct, or to impose as a peremptory order * * Black’s Law Dictionary, Rev. 4th Ed. It connotes a positive direction, and not a mere permission, as was the provision regarding the naming of a fee by will. We hold that the $15,000 bequest was not a “commission or allowance prescribed by law.” (Italics ours.) We need not consider what the situation would have been if the Probate Court had made an order or finding that a reasonable fee would have been an amount in excess of the minimum fee, for there was no such order or finding. The assessment of the tax here upon the excess above the minimum statutory fee rather indicates that the minimum was considered to be a reasonable' fee. Section 145.050 dictates that a testator may not arbitrarily fix a fee in any amount he chooses insofar as the inheritance tax is concerned. He may do so insofar as the transfer of the money (less the tax) is concerned.

As thus considered, we do not deem the two statutes to be in any way in conflict. We do not regard § 145.050 as an exemption statute, but as a taxing statute. It is true that taxing statutes are to be strictly construed, but this does not mean that they are to be distorted in favor of the taxpayer. The meaning of that statute is so plain to us that no question of strict or liberal construction arises.

The argument concerning the financial impact of our ruling upon the Executor, the estate, and the State of Missouri regarding income and estate taxes is rather pointless. It is immaterial that the.Executor might thus gain and the estate and the State lose. We are only construing the statutes which are relevant to these facts.

Both sides cite the case of In re McKinney’s Estate, 351 Mo. 718, 173 S.W.2d 898 (1943), and each insists that the opinion is in its favor. We do not regard it as decisive either way. The principal distinction on the facts is that it involved the fee of a trustee, for whom there were no statutorily prescribed fees. Another is that the deduction sought there by reason of the fee was from the “net value” of the estate coming to the residuary legatees, and involved their tax, not that of a trustee or executor. There the will specified a fee of 5% (construed by both parties to apply only to the corpus of the trust) and the question was whether this fee could be deducted in assessing the inheritance tax. The Court considered the predecessor statute of § 145.050 (then § 581, RSMo 1939).

The Probate Court and the Circuit Court had held that the fee given to the trustee by will was not deductible in assessing the inheritance tax. The State contended that since there was no trustee’s fee “prescribed by law,” no trustee’s fee could be deducted. We note that under general Missouri law a trustee is entitled to a reasonable fee, fixed by the Court or by will. This Court reversed. The opinion seems to indicate that one reason given, and perhaps the principal one, was that the 5% fee had been paid and deducted from the residuary estate before the beneficiaries received it, and that the “net value” of their estate did not include any such amount; and that their tax, therefore, should not be based upon an amount which they did not receive. The Court then held that since there were no trustees’ fees prescribed by statute, the references in § 581 to “prescribed by law” could not mean “prescribed by statute” as to trustees; and that unless it adopted a construction which would “strike” the word “trustees” out of the statute, it must adopt a broader definition to include any reasonable amount allowed by will. This part of the opinion, which is not entirely clear to us insofar as executors are concerned, reads as follows, 173 S.W.2d 898, l.c. 902: “Since there is no statute governing trustee’s fees, to construe the words ‘prescribed by law’ to mean specifically ‘prescribed by statute’ would strike the word ‘trustees’ out of the statute, while the phrase ‘prescribed by law’ makes sense when considered with the word ‘executor’ and using the word ‘law’ in its commonly accepted and broadest sense. Section 581 is, therefore, applicable and is a further limitation on the sum which may be deducted; an amount exceeding the allowance prescribed or permitted by law, that is, as to a testamentary trustee, any sum in excess of a reasonable allowance by way of device or legacy is subject to the tax.”

That case did not involve an executor whose commissions are prescribed by statute. The parties disagree as to whether the Court, by inference, indicated that the term “prescribed by law” would mean “prescribed by statute” with reference to executors. We doubt that the Court attempted to decide that question, but if it did it was by way of dictum. We hold, as already indicated, that under the facts of our case the commission or fee “prescribed by law” was the minimum fee fixed by § 473.153(1), and that the excess between that amount and the $15,000 was taxable.

A second point raised by the Appellant is that the Court erred in hearing parol evidence (from the Executor) “as to the meaning and interpretation of the will * Since we are reversing the case on Appellant’s first point with directions, the second point becomes irrelevant; also, such evidence as was admitted would seem to have been immaterial.

The order and judgment of the Circuit Court are reversed with directions to enter an order affirming and reinstating the order of the Probate Court of St. Louis County-

PER CURIAM.

The foregoing opinion by HENRY I. EAGER, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.

      A11 statutory references will be to this edition unless otherwise stated.