text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Respondent, v. FARMERS INSURANCE CO., Appellant.
    No. 39466.
    Missouri Court of Appeals, St. Louis District, Division No. One.
    July 25, 1978.
    Bernard C. Brinker, Carter, Brinker, Doyen & Kovacs, Clayton, for appellant.
    Ben Ely, Jr., St. Louis, for respondent.
   SMITH, Judge.

Defendant, Farmers Insurance Company, appeals from a judgment in favor of State Farm Mutual Automobile Insurance Co. on the latter’s petition for declaratory judgment. The cause was submitted to the trial court on a stipulation of facts.

Roger Hammett was injured in 1975 as the result of the negligence of an uninsured motorist. Hammett was insured by Farmers and his coverage included uninsured motorist coverage. On the occasion of the accident, Hammett had been a passenger in an automobile, operated by Dennis Lineber-ry, and insured by State Farm which insurance also provided uninsured motorist coverage. Hammett, Lineberry and a third person had gone to the place where the accident occurred to assist one Jerry Hammett who was driving a truck which had run out of gas and was stranded on the west shoulder of Highway 270 facing south. When the Lineberry vehicle arrived, Jerry Hammett was being assisted by Paul Schaeffer, who was parked behind Jerry Hammett’s truck. Lineberry parked behind the Schaeffer vehicle. The stipulation then recites:

“When the Jerry Hammett truck began running everyone started back to their cars. Lineberry’s Javelin was struck from the rear by the uninsured driver Cottner. At the moment of the impact, Dennis Lineberry was getting ready to get in the driver’s door of the Javelin. Lineberry was not touching the Javelin at the time. Roger Hammett was walking back, that is, northwardly, toward the passenger door of the Javelin and at the time the Javelin was struck from behind, Roger Hammett, was alongside the right front fender of the Javelin walking toward the door. At the time of the impact, he was completely outside the Javelin and was not touching any part of the Javelin. The force of the impact to the rear of the Javelin moved the car and caused it to collide with Roger Hammett who was walking beside the fender when the Javelin was knocked into him.”

Farmers policy, which covers Roger Hammett as a named insured, provides that the coverage furnished shall be excess to any similar insurance covering a non-owned vehicle occupied by the named insured. State Farm’s policy provides coverage to “any other person [other than a named insured] while occupying an insured motor vehicle; . . . .” (Emphasis in original). Both policies define “occupying” as “in or upon or entering into or alighting from.” The question therefore is whether Roger Hammett was “occupying” the Lineberry automobile at the time of the accident and was therefore covered by the State Farm policy. The trial court found he was not. We agree.

Farmers contends that Hammett was either “upon” or “entering into” the vehicle at the time of the accident. Both parties agree, and our research supports the conclusion that no Missouri case has passed upon this question. Several other states have, however.

An examination of those cases reveals a certain lack of consistency in results and each case must be decided on its facts. We believe, however, that the decisions can be grouped into two categories and that with a few exceptions the results in each category are consistent. In all of the cases with which we are concerned, the claimant has left the driver or passenger section of the vehicle and is injured while in some reasonably close proximity to the vehicle. The first category of cases are those in which the reason for leaving the vehicle and the claimant’s activities after leaving the vehicle are directly related to the insured vehicle itself. The second category is that in which the vehicle is the means of transportation to the point where the claimant leaves the vehicle, and the reason for leaving the vehicle is unrelated to the vehicle itself.

The cases in the first category usually involve situations where the insured vehicle has malfunctioned or sustained damage in some way and the claimant is either attempting to repair the damage, prevent further damage, or is obtaining or giving information concerning the damage. In that category of cases, the courts have quite liberally construed the “occupancy” provision to allow coverage, normally finding that the claimant is either “in” or “upon” the vehicle. Such an approach is reasonable since the injury which occurs is a direct result of the operation of the vehicle. We do not find the cases in this first category to be helpful in resolving this case.

The case at bar falls into the second category of cases, those in which the claimant’s reason for being outside the automobile is unrelated to the operation of the vehicle itself. Here Roger Hammett arrived at the scene and left the vehicle to assist another motorist, as planned when he originally entered the car. He was returning to the insured vehicle when it was struck by the uninsured motorist, causing the insured vehicle to strike Hammett. In the second category of cases, the courts have been much more rigid in requiring a claimant to establish that he meets one of the four definitions of occupancy. We do not find the terms used to be ambiguous. While some difficulty may be experienced in a given case in deciding whether the facts of that case bring it within “occupancy” as defined by the policy, that does not mean that “occupancy” itself (as defined) is ambiguous. The words employed are commonly used and understood, and are to be applied as commonly understood.

Farmers contends that Hammett was “upon” the vehicle because it struck him. We do not believe the word “upon” can be stretched that far. To do so would mean anyone who is struck by a vehicle would be an “occupant” regardless of his status. We find no cases in the second category which have held that the “upon” requirement is met where the claimant was not in contact with the vehicle immediately prior to the accident.

Farmers alternatively contends that Hammett was “entering into” the vehicle when the accident occurred. We think not. We accept the defendant’s contention that each of the descriptive phrases covers a different situation, although a given situation could encompass two or even three of the phrases. For instance a person may be “entering into” a vehicle and be in a position where he is both “in” and “upon” the vehicle also. We believe, therefore, that “entering into” a vehicle does not require that the injured party be in direct physical contact with the vehicle or that he have actually placed a portion of his body in the vehicle. Rather he must have reached such a position that his activity is that of entering the vehicle. We distinguish this from approaching a vehicle with the intention of entering. The difference is illustrated in two cases, one imposing liability and the other denying liability. In Goodwin v. Lumbermen’s Mut. Cas. Co., 199 Md. 121, 85 A.2d 759 (1952) the injured persons were waiting next to the vehicle for the door to be opened so they could enter. Some of the injured persons were in contact with the vehicle, but at least one was in a position where she was waiting to effect entry. It was held the injured persons were “entering” the vehicle. See also Carter v. Travelers Indemnity Co., 146 So.2d 257 (La.App.1962). In New Amsterdam Casualty v. Fromer, 75 A.2d 645 (D.C.App.1950), on the other hand, the claimant was in close proximity to the vehicle but was still approaching and was not yet in a position to effect entry. There it was held claimant was not “entering” the vehicle. See also Jarvis v. Pennsylvania Threshermen and Farmers’ Mutual Casualty Ins. Co., 244 N.C. 691, 94 S.E.2d 843 (1956); Ross v. Protective Indemnity Co., 135 Conn. 150, 62 A.2d 340 (1948). Here we find that Hammett was approaching the vehicle with an intent to enter, but had not yet reached a point where he was actually entering the vehicle.

Defendant contends that “entering into” and “alighting from” are opposites and therefore the cases interpreting the latter phrase should also be considered. We do not believe the two phrases are necessarily opposites. However, we find no cases in the “alighting from” category which are inconsistent with our conclusion. Two of the purported “alighting from” cases involve accidents where the deceased was clearly occupying the car at the time of the accident, and died after escaping the vehicle, in one case from drowning and in the other from exposure and frostbite. While the courts discuss “alighting from” we believe those cases are really proximate cause casesT-did the accident cause the death. Other “alighting from” cases involve circumstances in which the passenger or driver had left the vehicle and was injured while reaching a place of safety. The courts in those cases considered the alighting to have continued until that place of safety was reached. We do not consider those cases contrary to our conclusion here.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.

      . See Annotation: “Auto Insurance: When is a person “occupying” an automobile within meaning of medical payments provision.” 42 ALR 3rd 501.

      . Typical of these cases are: Wolf v. American Casualty Co., 2 Ill.App.2d 124, 118 N.E.2d 777 (1954); Motor Vehicle Accident Indemnification Corp. v. Oppedisano, 41 Misc.2d 1029, 246 N.Y.S.2d 879 (Sup.1964); Lokos v. New Amsterdam Casualty Co., 197 Misc. 40, 93 N.Y. S.2d 825 (Sup.1949); Christoffer v. Hartford Accident & Indemnity Co., 123 Cal.App.2d Supp. 979, 267 P.2d 887 (1954). Atypical is Green v. Farm Bureau Auto Ins. Co., 139 W.Va. 475, 80 S.E.2d 424 (1954).

      .Typical of these cases in addition to those cited, infra, are: Fischer v. Aetna Ins. Co., 65 Misc.2d 191, 317 N.Y.S.2d 669 (Sup.1971); Ostendorf v. Arrow Ins. Co., 288 Minn. 491, 182 N.W.2d 190 (1970); Allstate Ins. Co. v. Horn, 24 Ill.App.3d 583, 321 N.E.2d 285 (1974); Rice
        v. Allstate Ins. Co., 32 N.Y.2d 6, 342 N.Y.S.2d 845, 295 N.E.2d 647 (1973).

      . Nelson v. Iowa Mutual Ins. Co., 163 Mont. 82, 515 P.2d 362 (1973); Mattia v. Springfield Fire and Marine Ins. Co., 25 Pa.D. & C.2d 149 (1961).

      . Whitmire v. Nationwide Mutual Ins. Co., 254 S.C. 184, 174 S.E.2d 391 (1970); St. Paul-Mercury Indemnity Co. v. Broyles, 230 Miss. 45, 92 So.2d 252 (1957); Katz v. Ocean Accident and Guarantee Corp., 202 Mise. 745, 112 N.Y.S.2d 737 (Sup.1952); Contra: Carta v. Providence Washington Indemnity Co., 143 Conn. 372, 122 A.2d 734 (1956).


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    STATE ex rel. PETERBILT COMPANY, a Division of Paccar, Inc., a corporation, Plaintiffs, v. Arthur J. LITZ, Judge of the Court, Defendant.
    No. 39604.
    Missouri Court of Appeals, St. Louis District.
    July 25, 1978.
    Fordyce & Mayne, Edgar G. Boedeker, Leo V. Garvin, Jr., Thomas E. Toney, III, St. Louis, for plaintiffs.
    Seiner & Hyatt, N. A. Seiner, A. Fuller Glaser, Jr., John J. Collins, Edward E. Murphy, Jr., James E. McDaniel, Clayton, for defendant.
   SMITH, Judge.

Relator sought a writ of prohibition against respondent judge to prevent the court from proceeding under service which relator contended was void. We issued our preliminary writ. Subsequent thereto this court, upon request, amended its preliminary writ to allow the addition of parties and issuance of additional summons. Plaintiff in the underlying action then had issued an alias summons directed to Paccar, Inc. a/k/a Peterbilt Company. The original summons was directed to “Peterbilt Company, Inc.” Relator states in its Petition for Alternative Writ of Prohibition that Peter-bilt is an unincorporated division of Paccar, Inc., a corporation.

The matter is now moot. Issuance of the alias summons was an abandonment of the original service. State ex rel. Masada Seisakusko Company Ltd. v. Moss, 548 S.W.2d 185 (Mo.App.1977). Our preliminary writ was directed to the original service. Relator contends that the alias summons is also invalid. That is not before us. The original service has been abandoned; our writ reached only that service; the matter is moot. See, State ex rel. Masada Seisakusko Company Ltd., supra. The preliminary writ is quashed.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: McMILLIAN, Judge.

text:
    Samuel Lee NEAL, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38865.
    Missouri Court of Appeals, St. Louis District, Division No. One.
    July 25, 1978.
    Crouppen, Walther, Zwibelman & Walsh, P. C., Roy A. Walther, III, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Carson W. Elliff, Asst. Atty. Gen., Jefferson City, for respondent.
   McMILLIAN, Judge.

Appellant Samuel Lee Neal appeals from a judgment of the circuit court of the City of St. Louis denying, after an evidentiary hearing, his second Rule 27.26, V.A.M.R. motion to set aside his conviction and sentence. For reversal appellant argues that the trial court erred in dismissing appellant’s second Rule 27.26 motion for lack of jurisdiction because (1) appellant was denied effective assistance of counsel in his first Rule 27.26 motion, which was denied after an evidentiary hearing, and (2) appellant’s counsel failed to appeal the denial of the first Rule 27.26 motion. For the reasons discussed below, we affirm the judgment of the trial court.

On March 17, 1974, Samuel Neal was convicted of Second Degree Murder and sentenced to a term of fifty-five (55) years imprisonment. After a jury trial in which no witnesses for the appellant testified, appellant appealed his conviction, and on August 5, 1975, this court affirmed the sentence and judgment of the court. Appellant filed his first Rule 27.26 V.A.M.R. motion on April 26, 1976. In this motion he alleged: (1) ineffective assistance of counsel in the preparation of the case for trial; and (2) lack of due process of law because appellant’s visitation rights and ability to contact witnesses had been restricted. An evidentiary hearing was held on June 11, 1976. At this hearing appellant was represented by Ronald I. Vails, his second court-appointed attorney. Appellant testified during direct examination that there were witnesses who could testify that he was in his mother’s house at the time of the murder. He further testified that he informed his attorney of this fact at the time of their interview. Appellant’s testimony concerning prior contact with his first attorney was in direct conflict with the attorney’s testimony on the subject.

On June 22, 1976, the appellant’s motion alleging ineffective assistance of counsel was overruled. In support of its holdings the court made specific findings that appellant had been adequately and competently represented; that appellant’s version of the interview was not credible; and that appellant’s confinement was not a violation of his due process rights. No appeal was filed.

Appellant filed a second 27.26 motion on September 20, 1976, in which he alleged ineffective assistance of counsel for failure to call witnesses at the first 27.26 hearing. On December 10, 1976, the court dismissed the motion after a hearing on the grounds that it lacked jurisdiction to hear the motion under Supreme Court Rule 27.26. This appeal followed.

Appellant argues that the court erred when it dismissed movant’s second post conviction relief motion on grounds of lack of jurisdiction, because movant was denied effective assistance of counsel in the first post conviction relief proceeding and because counsel failed to appeal the order of the court overruling movant’s first post conviction relief motion. We disagree. In his second motion appellant did not raise the failure to appeal the order of the court overruling movant’s first post conviction relief motion. Failure to raise this point in appellant’s motion makes it impossible to raise this issue on appeal. We will therefore only consider appellant’s contention that his counsel failed to call witnesses at his first post conviction relief hearing.

Rule 27.26 V.A.M.R. reads in pertinent part:

A prisoner in custody under sentence and claiming a right to be released on the ground that such sentence was imposed in violation of the Constitution and laws of this State or the United States, or that the court imposing such sentence was without jurisdiction to do so, or that such sentence was in excess of the maximum sentence authorized by law or is otherwise subject to collateral attack, may file a motion at any time in the court which imposed such sentence to vacate, set aside or correct the same.

Rule 27.26 is intended to provide a means for attacking a conviction in a criminal proceeding, and “is not applicable to any alleged irregularity in a hearing under that same rule.” Crosswhite v. State, 438 S.W.2d 11, 12 (Mo.1969). Post conviction relief is a very limited remedy and is only to be used to test the validity of a sentence.

“. . . Rule 27.26 is intended to provide a procedure by which a prisoner may attack his sentence; it is not intended for use as a procedure to attack the result of a prior post conviction proceeding. Therefore, movant’s charge that he was denied effective assistance of counsel in connection with his appeal in the first 27.26 case is not cognizable under this rule.” (McCormick v. State, 502 S.W.2d 324 (Mo.1973))

In the present case the second 27.26 motion is directed not at the sentence, but at the adequacy of counsel. It was in the post conviction stage that the problem occurred. The failure of appellant’s second counsel to call witnesses at the first 27.26 hearing relates only to acts of counsel and does not challenge the conviction or the sentence. Furthermore, because the testimony regarding the attorney’s preparation for the trial conflicted with appellant’s testimony, the court could properly believe the attorney. When reviewing a decision where conflicting testimony has been heard, an appellate court shall “give due regard to the opportunity of the trial judge to judge the credibility of the witnesses [and] accord deference to the trial judge’s conclusions where there is conflicting testimony.” Duley v. Leininger, 527 S.W.2d 456 (Mo.App.1975).

In Williams v. State, 507 S.W.2d 664 (Mo.App.1974) the court faced a situation comparable to the one at hand. The issue in Williams was whether a prisoner could utilize a second 27.26 motion in order to attack the adequacy of his legal representation in the preparation of a 27.26 motion. In holding this is an impermissible use of Supreme Court Rule 27.26, the court stated:

What appellant attempts to do here is to challenge the effectiveness of legal representation received by him on post conviction proceedings, totally uncoupled with any attack having any color of merit pertaining to the trial itself and the conviction resulting therefrom.
A rejection of that attempt is necessitated by the practical consideration that litigation must end sometime. Where a prisoner permitted to challenge the effectiveness of his legal counsel at the first 27.26 hearing by means of filing a second 27.26, then he could likewise challenge his representation at the second hearing by filing a third 27.26, and so on ad infini-tum . . . The rule in Missouri avoids that result by declaring that proceedings under Rule 27.26 must be directed to defects which led to the original sentencing. (Citations omitted.)

We cannot find that the court erred in dismissing appellant’s second 27.26 motion.

Accordingly, judgment is affirmed.

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

      . State v. Neal, 526 S.W.2d 898 (Mo.1975).


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Benjamin Maurice UNDERWOOD, Appellant.
    No. 39081.
    Missouri Court of Appeals, St. Louis District, Division No. One.
    July 25, 1978.

      Robert A. Hampe, Kenneth S. Kochmann, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Ralph A. Dobberstein, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Defendant appeals from a judgment imposing a two-year sentence after a jury found him guilty of carrying a concealed weapon. He challenges evidence of the search of his person.

The scope of our review is limited to plain error under Rule 27.20(c). Defendant’s motion for new trial was not filed until thirty days after the verdict instead of within ten days as required by Rule 27.-20(a); it preserves nothing for review. State v. Collett, 542 S.W.2d 783[1] (Mo.1976). Further, the motion for new trial made only an abstract allegation that the trial court erred in denying his motion to suppress, and fails to comply with Rule 27.20(c) by stating grounds in detail and with particularity. By so failing the point is not preserved for review. State v. Hulsey, 557 S.W.2d 715[9] (Mo.App.1977).

We find no plain error in the trial court having denied the motion to suppress. The state’s evidence showed that as patrolling police approached defendant he turned sharply away, his jacket flew open and police saw a pistol butt sticking out from his waistband. They stopped defendant, patted him down and found a loaded .32 caliber pistol under his jacket. We find that in denying the motion to suppress there was neither manifest injustice nor miscarriage of justice affecting defendant’s substantial rights. Compare State v. Johnson, 504 S.W.2d 23[1] (Mo.1974), approving a comparable search.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


author: WASSERSTROM, Judge.

text:
    James H. MORGAN, Respondent, v. Ernest WARTENBEE, Appellant.
    No. KCD 29311.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.

      Max VonErdmannsdorff, VonErdmanns-dorff, Zimmerman, Gunn & Werner, Kansas City, for appellant.
    Timothy H. Bosler, Liberty, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Plaintiff Morgan sued defendant Warten-bee, an insurance broker, for the latter’s failure to procure requested fire insurance on plaintiff’s building and its contents. Trial to a jury resulted in a $25,000.00 judgment in favor of plaintiff, from which defendant appeals. His attorneys on this appeal did not participate in the trial of the case.

In May, 1973, plaintiff was in the course of completing the construction of a diesel repair shop on property in close proximity to his home. At that time he obtained $5,000 fire insurance on the incompleted shop from Iowa National Mutual Insurance Company through defendant.

On December 5, 1973, plaintiff called upon defendant at his office and communicated his desire to obtain $10,000 additional fire insurance on the shop and $30,000 fire insurance on the contents. Plaintiff testified that defendant responded that he did not see any difficulty and continued “I’m not sure just which company I’ll put you in but I’ll cover you now.” Plaintiff further testified that when he left defendant’s insurance agency he felt that he had $15,000 coverage on the building and $30,000 on the contents.

After that conference, defendant attempted to place the additional insurance with Iowa National Mutual Insurance Company but that company declined to issue the additional coverage. Thereupon defendant wrote to Commercial Union Insurance Company in order to obtain the insurance in question. While this request by defendant was being processed, a fire occurred on December 17, 1973, which completely demolished plaintiff’s shop and its contents.

While there was no direct evidence so showing, apparently Iowa National Mutual Insurance Company promptly paid the $5,000 due to plaintiff under its policy. Commercial Union Insurance Company, although denying any legal liability to plaintiff, also paid $5,000 which defendant described to plaintiff as “a Christmas present”.

Defendant relies on seven assignments of alleged error, each of which will be discussed in turn.

I

Defendant for the first point challenges Instruction No. 4 which is MAI 4.01, which constituted the instruction on measure of damages. Defendant attacks this instruction on four separate grounds.

The first of these grounds is that the instruction fails to direct the jury to give defendant credit for $8,000 which plaintiff collected from Safety Kleen Corporation. The facts in connection with this claimed credit are as follows. At the time of the fire, plaintiff was renting a parts washer from Safety Kleen which consisted of a device containing a drum of solvent with a pump to keep the solvent circulating in a basin. The fire marshal reported to plaintiff that the Safety Kleen device was defective and caused some of the solvent to be shot out onto the floor and onto a salamander which was used for heating purposes. Plaintiff brought suit against Safety Kleen on the theory that the defective parts washer caused the fire in question. That litigation was settled for $8,000 paid by Safety Kleen to plaintiff.

Defendant contends that if the insurance policy had been issued as requested by plaintiff, then the insurance company would have been entitled to the $8,000 under principles of equitable subrogation; and he further claims that he should be in an equal position to that which would have been available to the insurer. We assume, without deciding, that defendant was entitled to such recoupment or offset.

We also treat this item as available to the defendant as offset even though not pleaded by him as an affirmative defense, on the basis that evidence of the $8,000 payment was received into evidence without appropriate objection. See Rule 55.33(b). Further, we need not deal with the question of whether defendant was obligated to submit an instruction on the right to offset this $8,000 item in order to preserve that point. Even assuming that defendant did not have such an obligation, for even more reason plaintiff had no obligation to include reference to that item in his damage instruction.

Defendant’s contention that plaintiff was under an obligation to instruct the jury with respect to the specific $8,000 item runs counter to the fundamental philosophy which underlies the drafting of MAI 4.01. The thinking behind this particular MAI is to facilitate standardized submission by omitting detailed itemization of damage. In place of that, it is intended that the particular elements of damage in each individual case will be presented to the jury by means of the argument by counsel. This fundamental explanation of MAI 4.01 is set forth in Boten v. Brecklein, 452 S.W.2d 86 (Mo.1970) l.c. 93, as follows:

“It is contemplated by MAI that where a general instruction of this kind is given the jury will be properly advised by the argument concerning details. If the attorneys disagree as to the elements of and the proper measure of damages any question raised should be settled by the court either at the instruction conference or by its ruling upon objections made during the course of argument.”

This explanation of MAI 4.01 has been repeated in Crawford v. Smith, 470 S.W.2d 529 (Mo. banc 1971).

The contemplated amplification with respect to damages did occur during the argument of this case. As part of his closing argument, defendant’s counsel did specifically point out the facts in evidence relating to the $8,000 recovery to the jury. This argument served precisely the purpose of spelling out to the jury the elements of damage as discussed by the Supreme Court in the Boten opinion.

Furthermore, it appears that the jury did, in fact, give defendant the benefit of the $8,000 offset. According to plaintiff’s testimony, his loss on the shop building was $15,000 and his loss on the contents came to $64,957.76. If all of the insurance had been procured, as promised by defendant, that coverage would have totaled $45,-000, which, of course, was less than the amount of total loss. The award by the jury was only $25,000 which leaves room for it having taken into consideration $5,000 insurance recovery from Iowa National Mutual Insurance Company, $5,000 recovery from Commercial Union Insurance Company and $8,000 from Safety Kleen. From this it appears that defendant has suffered no prejudice from the failure of Instruction No. 4 to mention the $8,000 item.

Defendant’s second objection to Instruction No. 4 is that it fails to limit his liability to the amount which would have been due to plaintiff if the full amount of insurance had been issued as requested by him. The basic answer to this argument is the same as that already discussed immediately above. The scope of and limitations upon plaintiff’s recovery were, as discussed in Boten, matters for jury argument. Furthermore it is to be noted that plaintiff’s verdict-directing Instruction No. 3 (see footnote 4, infra) affirmatively required the jury to find as one of the elements necessary for plaintiff’s recovery that plaintiff had requested and defendant had agreed to provide a total of $15,000 coverage for the building and $30,000 coverage for the contents. Under familiar principles, Instructions 3 and 4 must be read together. Furthermore the $25,000 verdict was less than the total amount of requested coverage, after deducting the appropriate offsets.

Defendant’s next attack upon Instruction No. 4 is that it fails to give credit against any recovery for the amount of premiums for which plaintiff would have been obligated had the insurance been issued. If this objection were otherwise valid, it nevertheless is not entitled to be reviewed because not contained in defendant’s motion for a new trial. The jury verdict and the judgment thereon were filed on October 5, 1976. Defendant’s motion for new trial was filed within due time on October 18, 1976. However, defendant made his objection for the first time concerning the lack of credit for premium on January 14,1977, when the motion for new trial came before the court for argument. At that time defendant’s counsel stated to the court that he would like to amend his motion to add the words “and for the premium that would have been due had an additional policy been issued.” It is well settled that a motion for new trial may not be amended to add a new point after the expiration of the time provided by statute or court rule. State ex rel. Iba v. Ellison, 256 Mo. 644, 165 S.W. 369 (banc 1914); Lloyd v. Garren, 366 S.W.2d 341 (Mo.1963); Mt. Vernon Bank v. Porter, 148 Mo. 176, 49 S.W. 982 (1899); State ex rel. Hicklin v. Fidelity and Casualty Company of New York, 274 S.W.2d 596 (Mo.App.1955). The trial court was, therefore, correct in denying defendant’s belated attempt to amend his motion for new trial.

Defendant’s final attack upon Instruction No. 4 centers upon the term “occurrence.” Defendant argues that there were two “occurrences” in this case, namely: first the fire, and second the failure to obtain additional insurance. He contends that defendant could only be liable for failure to obtain the insurance but not for the fire itself; and that by failing to distinguish between these two factors, the jury was confused and misled. Defendant finalizes his argument on this point by the statement in his brief that “[tjhere can be little doubt but that the jurors who tried the cáse of Morgan v. Wartenbee believe that they tried a fire case.”

A fair reading of the record fails to bear out defendant’s statement last quoted. The opening statements, the evidence and the closing arguments, as well as the directions of Instruction No. 3 all focused upon the question of whether defendant agreed to obtain the additional insurance requested by plaintiff and whether defendant was negligent in failing to do so. What is more, the verdict returned by the jury plainly shows that the jury members fully understood the issue correctly to be a negligent failure to obtain the insurance, and the amount of their verdict reflects that proper understanding. The jury could not have been reasonably misled by the use in Instruction No. 4 of the general term “occurrence”. In this respect the present case is like Nelson v. R. H. Macy & Co., 434 S.W.2d 767 (Mo.App.1968), and it is unlike the factually distinguishable cases cited by defendant.

II

Defendant’s next major point attacks Instruction No. 3. This attack subdi-vides into two prongs. The first prong raises objection to an alleged variance between the amended prayer for damages in plaintiff’s petition as compared to the figures set forth in the instruction.

The alleged discrepancy does not really exist. The instruction directs the jury that in order to find for the plaintiff it must believe that the plaintiff requested and defendant agreed to provide total insurance coverage of $15,000 on the building and $30,000 on the contents. The sum of these two figures is, of course, $45,000. Defendant complains that the prayer for damages is only $35,000. That comparison seeks to create a conflict where none exists.

The $45,000 represents what the parties discussed and agreed upon. That sum, however, must be reduced by the $10,000 paid by the two insurance companies in order to arrive at what plaintiff has lost (disregarding for the moment the $8,000 received from Safety Kleen and which has already been discussed supra). Regardless of what offsets may be proper in order to arrive at net damages, Instruction No. 3 committed no error in reflecting correctly plaintiff’s version of the agreement which had been made by the parties on December 5, 1973.

The second prong of defendant’s attack upon Instruction No. 3 is that it commingles contract and tort liability. Defendant’s criticism is not well taken. The law clearly grants to a plaintiff in Morgan’s position a choice of whether to sue the defendant broker for breach of contract or for commission of negligence. 43 Am. Jur.2d, Insurance, § 174, p. 230; Pittman v. Great American Life Insurance Company, 512 S.W.2d 857 (Mo.App.1974); Hall v. Charlton, 447 S.W.2d 5 (Mo.App.1969). The obligation is based upon the defendant’s contractual undertaking which has consideration inasmuch as it was “with a view to earning a commission”, Hall v. Charlton, supra. And a negligent failure to perform the undertaking can give rise to tort liability. Helton v. Hake, 564 S.W.2d 313 (Mo.App.1978). In this case plaintiff chose to sue in tort for the negligence, as he had a right to do.

Ill

For his third major point, defendant complains that plaintiff was obligated to prove that he could have collected under the policies had they been issued, and his evidence fails to so prove. The difficulty with this argument is that it assumes that the burden of this proof was upon plaintiff whereas in fact the burden was upon defendant to show, if it be a fact, that plaintiff could not have recovered even if the policies had been written.

This point is forcefully stated in Stevens v. Wafer, 14 S.W.2d 295 (Tex.Civ.App.1929) l.c. 296. In that case, as here, a plaintiff sued for breach of contract by a broker to obtain insurance. The plaintiff obtained judgment and on the broker’s appeal, the court stated that “[t]he sole question involved in this appeal is whether appellee, without alleging and proving that he could have recovered under the insurance contract which should have been procured for him by appellant, can recover damages against appellant for failing to procure the contract.” The court then proceeded to answer that question in the affirmative:

“The record shows that appellant represents eight or nine different fire insurance companies, and it is entirely possible that they each issue a different kind of policy. Appellee has no way of knowing with which company appellant intended to place his insurance, and consequently, if it be true that the policies are not uniform, it would be impossible for appel-lee to allege what the terms of the intended policy would have been if it had been issued.
“He has alleged the contract and its breach and is claiming damage for that breach, and that but for appellant’s breach of contract appellee would have had a valid and subsisting policy of fire insurance on his buildings in the additional sum of $600 in one of the companies represented by appellant.
“We think that appellee has alleged a good cause of action, and that appellant, if the loss occurred under conditions which would relieve his companies, or any of them, from liability, or have prevented appellee from recovering for the loss, should have alleged and proved those facts.”

The law is the same in Missouri. So in Hans Coiffures International, Inc. v. Hejna, 469 S.W.2d 38 (Mo.App.1971) the plaintiff sued for an insurance broker’s failure to obtain promised insurance. The broker defended on the theory that plaintiff could not have recovered on the policy if issued because of its failure to keep the proper records which would have been required by the insurance company. The court rejected that defense holding as follows:

“The legal barrel of defendant’s challenge is that plaintiff failed to prove it kept books and records that would enable an insurer to accurately determine the amount of its loss. That puts the shoe on the wrong foot. The defendant-agent incorrectly assumes the hypothetical books- and-records clause was a condition precedent to plaintiff’s recovery and that plaintiff had to prove compliance. Not so. It was an affirmative defense, a part of defendant’s case, not plaintiff’s. If an insurer pleads, as the defendant-agent does here, an exception to the general liability clause of its policy it has thereby set up an affirmative defense and has the burden of proving it.”

See also Hall v. Charlton, supra.

IV

Defendant’s next point is that he should have been granted a new trial because of newly discovered evidence. The claimed evidence newly discovered after trial relates to the settlement between plaintiff and Safety Kleen Corporation. Defendant says that he has discovered since trial that in connection with that settlement plaintiff gave Safety Kleen a general release, and that this general release has the legal effect of releasing not only Safety Kleen but also defendant whose right of subrogation was thereby foreclosed.

The trial court’s denial of a new trial for this reason can be justified on at least two grounds. In the first place defendant has offered no proof that plaintiff gave Safety Kleen a general release. The law is well settled that a motion for new trial on the basis of newly discovered evidence must be supported or accompanied by some proof, either within itself or by accompanying affidavits, so that the examining court will not be lead into granting of a new trial which may rest upon imagination, hope, misjudgment or intentional misrepresentation. Womack v. McCullough, 358 S.W.2d 66 (Mo.1962); Gehner v. McPherson, 430 S.W.2d 312 (Mo.App.1968).

Moreover the new trial will not be granted unless the movant can show that the evidence in question could not have been obtained in time for trial by the exercise of due diligence. Womack v. McCullough, supra; Gehner v. McPherson, supra; Koenig v. Skaggs, 400 S.W.2d 63 (Mo.1966); Pippas v. Pippas, 330 S.W.2d 132 (Mo.App.1959). Defendant’s motion for new trial merely makes a bald assertion that it was not negligent in failing to discover this evidence sooner. Such an unsupported conclusion does not suffice. Gehner v. McPherson, supra. Moreover, the facts concerning the $8,000 settlement were elicited by defendant’s counsel upon cross-examination of the plaintiff and the questions asked at that time made it , quite apparent that defendant’s counsel was well aware of the settlement and did not stumble upon that fact by pure accident during the course of questioning. No reason is given or suggested why defendant could not have fully explored all aspects of this settlement prior to trial, including the question as to the nature of the release given.

The granting of a new trial for newly discovered evidence is disfavored, and whether or not a motion in this nature should be granted rests largely in the discretion of the trial court. Womack v. McCullough, supra; Gehner v. McPherson, supra. The record is far from showing any abuse of discretion by the trial court in overruling the motion on that ground here.

V

Defendant next challenges the exclusion of evidence offered by him through an alleged expert by way of a hypothetical question as to the value of plaintiff’s shop which was destroyed by fire. As soon as the hypothetical question was asked, plaintiff objected and the objection was sustained. At that point defendant’s counsel desisted from going any further and completely failed to make any offer of proof as to what the answer would have been. By not making the required offer of proof, defendant failed to preserve any question for appellate review. Elliott v. Richter, 496 S.W.2d 860 (Mo.1973); Stringer v. Reed, 544 S.W.2d 69 (Mo.App.1976); Cobb v. R. W. Beasley Construction Co., 536 S.W.2d 535 (Mo.App.1976); Keeshan v. Embassy Investment Co., 303 S.W.2d 666 (Mo.App.1957).

Furthermore, any question as to the exclusion of this evidence was inadequately preserved in defendant’s motion for new trial. The closest which that motion comes to raising this point is paragraph 8 which alleges that “the Court erred in excluding competent, relevant and material evidence offered by the plaintiff.” Such a point in a motion for new trial is insufficient. Associates Discount Corporation v. Isgriggs, 431 S.W.2d 694 (Mo.App.1968).

Defendant attempts to expand this Point in the argument portion of his brief by arguing that there is no evidence to demonstrate that plaintiff had an insurable interest in the amount of $45,000. No question as to insurable interest having been contained in the Points Relied On, that contention is not properly presented for consideration. Rule 84.04(d).

VI

Defendant next objects to the exclusion of certain evidence offered by him relating to “the condition of the dwelling” which defendant now contends would have tended to show non-insurability of plaintiff’s shop. Plaintiff’s house in which he resided was in close proximity to the diesel repair shop, but it is difficult to perceive how the condition of the dwelling could have in any substantial respect affected the insurability of the shop building. In any event, no offer of proof was made with respect to the proposed evidence nor was any adequate reference made to this matter in the motion for new trial. Accordingly, this point is not preserved for review.

VII

As his final point, defendant contends that Commercial Union Insurance Company was a necessary party to this litigation and the failure to make it a party constituted reversible error. The requirements as to necessary and indispensable parties are covered by Rule 52.04. Whether a party is necessary is covered by Sub-section (a) while the question of indispensability is covered in Sub-section (b). Unless a party is first found to be necessary under Sub-section (a) no consideration need be given to indispensability. Bunting v. McDonnell Aircraft Corp., 522 S.W.2d 161 (Mo. banc 1975); State ex rel. Emcasco Ins. Co. v. Rush, 546 S.W.2d 188 (Mo.App.1977).

A person is a necessary party if in his absence complete relief cannot be accorded among those who are already parties. That portion of Sub-section (a) is not applicable here because complete relief can be granted between Morgan and Wartenbee without the presence of Commercial Union. Morgan here sues upon an undertaking by Wartenbee to obtain insurance, which could have been placed in any company selected by Wartenbee. As a matter of fact, War-tenbee did approach at least one other insurance company in an effort to place this insurance. The gist of plaintiff’s complaint is that the insurance was never placed with any insurance company and he asks damages against Wartenbee because of the absence of that insurance. By the very essence of Morgan’s claim against Wartenbee, he disclaims any right to recovery against Commercial Union.

The issues between Morgan and Warten-bee are whether Wartenbee promised to obtain the insurance and whether his failure to do so was negligent. The presence of Commercial Union in the lawsuit is unnecessary for the determination of those questions.

The only other ground under Sub-section (a) of Rule 52.04 for holding Commercial Union to be a necessary party would be if it claimed a direct interest in the subject of the action. Commercial Union has never itself presented any claim of an interest, and under the facts it has no direct interest. “Such interest does not include a mere, consequential, remote or conjectural possibility of being in some manner affected by the result of the original action. It must be such a direct claim upon the subject matter of the action that the intervenor will either gain or lose by direct operation of the judgment to be rendered.” Bunting v. McDonnell Aircraft, supra, l.c. 169. See also State ex rel. Emcasco Ins. Co. v. Rush, supra.

There being no error, the judgment is affirmed.

All concur.

      . This instruction stated: “If you find the issues in favor of the plaintiff, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe he sustained as a direct result of the occurrence mentioned in the evidence.”

      . There are cases which hold that an insured can be called upon to account to the insurer-subrogee only if he has recovered more from the insurer and the wrongdoer than the total of his loss, and then only for the excess. E. g. Camden Fire Insurance Ass’n v. Prezioso, 93 N.J.Eq. 318, 116 A. 694 (1922); Shawnee Fire Insurance Co. v. Cosgrove, 121 P. 488 (Kan.1912). See, however, Auto Owners Protective Exchange v. Edwards, 82 Ind.App. 558, 136 N.E. 577 (1922).

      . Plaintiff did object to evidence concerning the $8,000 recovery but on the basis that this was irrelevant because constituting “reimbursement from a collateral source.” Plaintiff’s counsel did not object on the ground that this item related to an offset not affirmatively pleaded.

      . Instruction No. 3 directed the jury as follows: “Your verdict must be for the plaintiff if you believe: First, plaintiff requested that defendant provide a total fire insurance coverage on the plaintiffs building of $15,000 and on plaintiff’s building contents of $30,000, and Second, defendant agreed to immediately provide such insurance coverage, and Third, defendant failed to provide such insurance coverage and failed to notify plaintiff of such failure, and Fourth, defendant was thereby negligent, and Fifth, as a direct result of such negligence plaintiff sustained damage.
      “The term ‘negligence’ as used in this Instruction means the failure to use that degree of care that an ordinary careful and prudent person would use under the same or similar circumstances.”


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Kirby Russell KEEVER, Appellant.
    No. KCD 29378.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.

      Scott W. Ross, Beavers & Ross, Maryville, for appellant.
    John D. Ashcroft, Atty. Gen., Carson El-liff, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Kirby Keever was convicted of stealing property in another state and bringing the same into this state. Section 541.040, RSMo 1969. He was sentenced to four years imprisonment.

On this appeal Keever charges error in (1) failure to submit an instruction on conspiracy; (2) improper reception of an admission; (3) insufficient evidence; and (4) an erroneous instruction. Affirmed.

On September 1, 1974, Keever and Presley Mires told James Rebel they would get Rebel a 4430 John Deere tractor. Keever told Rebel they would deliver such a tractor but it would take a little while to get it. Rebel showed Keever a machine shed south of Bethany where he wanted the tractor delivered. A sale price of $2,000 was agreed upon.

On October 26,1974, Orland Engstrand, a farmer in Page County, Iowa, approximately 90 miles north of Bethany, parked his 4230 John Deere tractor in a field near his home. Engstrand had paid $13,500 for the tractor just over a year before. About 8:00 A.M. on October 27, 1974, Engstrand noticed his tractor was missing. He had not given permission for anyone to move it.

On the morning of October 27, 1974, Keever and Mires visited Rebel in a hospital where he was a patient. Keever told Rebel they had delivered a tractor. Rebel had his hired hand check the machine shed and the hired hand found a 4230 John Deere tractor there. No such tractor had been owned by Rebel prior to that time. About a week later, when Rebel was out of the hospital, he met Keever and Mires. At this time Keever told Rebel he would have to have about $4,000 for the tractor. Rebel gave him $2,500 and agreed to keep the tractor even though it was not the 4430 model that he preferred. At that time Mires told Rebel he did not know if he had enough fuel to get the tractor over here. About a week later Rebel paid Keever the balance of $1,500.

Rebel used the tractor purchased from Keever until November, 1975, when it was discovered to be the tractor stolen from Engstrand.

Keever was arrested in December, 1975. After his arrest the sheriff of Harrison County read him his “Miranda” rights. After hearing his rights read to him, Keever asked to see the warrant so that he could read the charge pending against him. He read the charge and told the sheriff he did not steal the tractor. He stated he had contacted a man in Omaha who was connected with a tractor stealing ring and had showed this man a number of tractors setting around. He also showed the man the machine shed near Bethany on the Rebel farm where the tractor was to be delivered. He stated he had talked with Rebel about delivering a tractor to him. He said after he had contacted the man in Omaha this man came to his home one morning and woke him up and demanded money. He said he paid him. It was not made clear whether this payment to the man from Omaha was made before or after the delivery of the tractor to Rebel. He said the tractor delivered to Rebel was not the model Rebel wanted.

As one of his points, Keever challenges the sufficiency of the evidence to sustain his conviction. He argues the case was based wholly on circumstantial evidence. He contends the circumstances are not sufficient to sustain the conviction. This was not a case based on circumstantial evidence but was one based on direct evidence, that of the testimony of Rebel and the admission of Keever. Keever’s admission was not circumstantial evidence but was direct evidence. State v. Cox, 352 S.W.2d 665, 670[2, 3] (Mo.1961).

The evidence was sufficient to show at the very least that Keever encouraged another to steal a tractor and this was sufficient to make Keever a principal and allow him to be charged, tried and convicted as a principal. Section 556.170; State v. Lee, 404 S.W.2d 740, 747[10, 11] (Mo.1966).

Keever also contends the court erred in failing to give an instruction on conspiracy under § 556.120 on the theory the conspiracy was a lesser included offense. Keever contends it was impossible for him to have committed the crime charged without having entered into a conspiracy. There was no evidence to show the existence of a conspiracy. A person may aid and abet the commission of a crime and be guilty as a principal without a showing of the existence of a conspiracy. State v. Lee, supra. Here the evidence was sufficient to show Keever aided or encouraged the commission of the crime to the extent he would be guilty as a principal. “An instruction on a lesser offense is not proper unless it is impossible to commit the greater without first committing the lesser, for otherwise the lesser is not properly a lesser offense to the greater. U. S. v. Eisenberg, 469 F.2d 156, 162[13] (8th Cir. 1972).” State v. Fleming, 528 S.W.2d 513, 515[4] (Mo.App.1975).

It was not necessary to show a conspiracy in order to prove facts sufficient to show Keever encouraged the stealing to make him guilty as a principal. For that reason, under the rule stated in Fleming it was not necessary to give an instruction on conspiracy because it was possible to commit the felony charged without first participating in a conspiracy.

Keever next contends the court erred in receiving evidence of the statement he gave to the sheriff because he alleges the record fails to show that he knowingly and intelligently waived his right to remain silent and to consult with an attorney. Keever bases this argument on his failure to affirmatively state that he understood his rights and voluntarily waived the right to remain silent and to consult an attorney. The court conducted a hearing out of the presence of the jury to determine the voluntary nature of the statement. The court made the requisite finding the statement was voluntary. The court found from the total circumstances that Keever understood his rights and his statement was knowingly and voluntarily made. In State v. Thompson, 465 S.W.2d 590, 592[3, 4] (Mo.1971) the court stated: “The fact that an accused declined counsel voluntarily and understanding^ may be established by surrounding circumstances unequivocally showing a waiver.”

Here Keever was shown to be twenty-three years old with a high school education; he had no impediments in reading and understood the language of the information with which he was charged. There was no evidence of any coercion whatever and after he was advised of his rights, Keever requested a copy of the warrant so that he could read the charge against him. After reading the warrant, he made the statement referred to above.

The court correctly stated he was determining the voluntary nature of the statement from the totality of the circumstances. State v. Hutson, 537 S.W.2d 809, 813[1] (Mo.App.1976). An examination of the record reveals the court was correct in finding the statement to be voluntary.

Keever finally contends the court erred in giving Instruction No. 6, which was MAI-CR 2.10. Keever complains that the second paragraph of this instruction was given which states the presence of a person at the scene of the offense at the time it was committed is alone not sufficient to make that person responsible for the crime although his presence may be considered together with all of the other evidence. Keever contends there was no evidence to show he was actually present at the Engst-rand farm in Iowa when the tractor was stolen and this instruction supplies a vital part of the State’s case.

It should first be noted Keever admits the objection to this instruction has not been properly preserved and he requests review under Rule 27.20(c). There was evidence from which the jury could find that Keever was present when the tractor was delivered to the Rebel farm. Keever had told Rebel “they” had delivered the tractor. From the testimony of Rebel concerning this statement and the statement of Mires concerning fuel, the jury could infer that Keever was present when the tractor was delivered. Section 541.040 covers the situation when property is stolen in another state and brought into this state. It has already been noted the evidence would justify a conviction of Keever as a principal even though the evidence did now show he was personally present in Iowa when the tractor was stolen. At the same time there was evidence from which the jury could infer his presence at a time when the stolen property was transported in this state. Thus the second paragraph of MAI-CR 2.10 was justified since there was evidence from which the jury could find that Keever was present during one phase of the crime. For that reason the second paragraph of MAI-CR 2.10 was properly given.

The judgment is affirmed.

All concur.

       All statutory references are to RSMo 1969 unless otherwise indicated.


author: DIXON, Judge.

text:
    Marlon Anthony HOOKER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD29400.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.

      Louis Wagner, Kansas City, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Movant appeals a denial after evidentiary hearing of a Rule 27.26 motion. Movant, a juvenile at the time of the offense, was certified by the Juvenile Court to the Circuit Court for trial as an adult and was convicted of the crime of rape. Movant raises three issues: first, that this court is required to make independent findings of fact and conclusions of law on the issues raised by his motion; second, that the law student who represented the movant in the Juvenile Court certification hearing was not properly certified under Rule 13; and, third, that no evidence was presented to the Juvenile Court showing the guilt of the defendant with respect to the underlying charge.

The first claim of error is contrary to the specific direction of Rule 27.26(j) which limits review to “a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.” Dove v. State, 553 S.W.2d 554 (Mo.App.1977).

With respect to the second and third points, the movant did not file a motion in the Circuit Court requesting dismissal of the information or remand to the Juvenile Court so that any objection to the Juvenile Court proceeding has been waived. Jefferson v. State, 442 S.W.2d 6 (Mo.1969); State v. LePage, 536 S.W.2d 834 (Mo.App.1976).

Since the second and third points raise questions which are colorably of constitutional magnitude and since they are without merit, a brief statement will be made with respect to the record concerning each of the second and third points. The record conclusively demonstrates that the senior law student representing the defendant was certified under Rule 13 and properly supervised by a licensed attorney present in the courtroom.

Movant is correct in asserting that the Juvenile Court did not hear evidence concerning his guilt of the underlying offense, but proof of guilt of the underlying offense is not a prerequisite to juvenile court action under § 211.071 RSMo 1969; and the record conclusively demonstrates that the trial court’s findings under § 211.-071 are in accordance with the requirements of State ex rel. T. J. H. v. Bills, 504 S.W.2d 76 (Mo. banc 1974). Movant’s citation of cases relating to proof under § 211.-171 RSMo 1969, providing for the hearing procedure within the juvenile court are in-apposite.

The judgment of the trial court denying movant’s Rule 27.26 motion was based upon findings of fact hot clearly erroneous, and no error of law appears. An extended opinion would have no precedential value. Rule 84.16. Affirmed.

All concur.


author: WILLIAM I. DAVIS, Jr., Special Justice.

text:
    STATE FARM MUTUAL INSURANCE CO., Petitioner, v. Archie PARLIER et ux., Respondents.
    Supreme Court of Tennessee.
    July 10, 1978.
    Edwin L. Treadway, Steven C. Rose, Hunter, Smith, Davis, Norris, Treadway & Hadden, Kingsport, for petitioner.
    Stuart Hampton, Elizabethton, for respondents.
   OPINION

WILLIAM I. DAVIS, Jr., Special Justice.

This case involves the right of an insurance carrier to litigate an issue of coverage under provisions of the statutes and its insurance policies relating to uninsured motorist. It is here pursuant to writ of certio-rari heretofore granted on petition of State Farm Mutual Insurance Company. The sole complaint of petitioner is that the Court of Appeals failed and/or refused to remand the case to the trial court for an evidentiary hearing on the issue of coverage initially raised by petitioner’s motion for summary judgment.

The history of this litigation is that respondents Parlier had policies of insurance covering their two vehicles, Volkswagen and Ford automobiles, both policies issued by petitioner and providing uninsured motorist protection. Respondents’ son, while riding a motorcycle, was killed in a collision with a vehicle driven by Franklin D. Richardson, who had no insurance coverage. Respondents filed an action for damages against Richardson alleging negligent operation of his vehicle and also caused petitioner to be served with process under provisions of T.C.A. § 56-1153. Richardson interposed no defense. Petitioner filed a motion for summary judgment asserting as one of its grounds that the policies of insurance issued to respondents provided no uninsured motorist coverage for the death of the Parlier youth while riding a motorcycle; also, that the complaint failed to reflect who was the owner of the motorcycle or if it was being permissively operated, the complaint merely referring to ownership by stating the deceased “was riding his Kawasaki Motorcycle.”

The trial judge overruled petitioner’s motion for summary judgment on December 16, 1975. Respondents were awarded a default judgment against Richardson on January 20, 1976. Petitioner did not further plead in the trial court and took no further action until it filed its petition for writ of error in the Court of Appeals on December 6, 1976. Propriety of the issuance of the writ of error is not questioned in this Court.

The Court of Appeals held that the issue was narrowed to whether the motorcycle was owned by the named insured or any resident of the same household and concluded that the petitioners’ motion for summary judgment “presented a disputed issue as to a material fact, namely, did the named insured or any member of the same household own the motorcycle.” The Court of Appeals further observed that the word “his” as used in the complaint may or may not denote ownership in the deceased member of the same household and held that petitioner’s motion for summary judgment was properly overruled. The Court of Appeals then stated “the judgment of the trial court is affirmed. This lawsuit is remanded to the trial court for enforcement of its judgment.”

Respondents rely upon Harvey v. Birchfield, Tenn., 535 S.W.2d 334, an uninsured motorist case, to sustain their assertion that respondents have a judgment against petitioner in the trial court by reason of the judgment awarded respondents against Richardson, and having failed to further plead or make an issue of coverage, the petitioner is estopped to rely upon asserted lack of coverage as a defense.

In the Harvey case it was held that the insurer must raise the defense of absence of coverage under the insurance policy in the tort action or be estopped from later relying on it as a defense; that if a carrier chooses not to defend, it is bound by the judgment. The Court stated “[o]ur holding today that an insurance carrier served with process under T.C.A. § 56-1153 must assert any defenses in the trial court that it might have, or be estopped from later raising them comports with equitable principles.” 535 S.W.2d at 337.

There are two material factual distinctions between the Harvey case and the present case. One, in the Harvey case, no defensive pleading of any kind was filed by the insurer. Not true here. Two, in the Harvey case, a default judgment was actually entered against the insurer as well as the uninsured motorist. In this case before us we find from a reading of the record that it cannot be reasonably concluded that any judgment, certainly not a money judgment or award of damages has ever been granted respondents against petitioner. The Harvey case does not fully resolve the question here.

There is some mention in brief and oral argument of the pendency of an action to collect respondents’ judgment. Possibly the filing of that action may have prompted the filing of the petition for writ of error. Equally plausible would be the inference that the filing of such action was prompted by the recognition that respondents had no judgment against petitioner. But that case, if it exists, is not before us in any manner.

We hold that under the record in this case the petitioner is not yet bound by the judgment for damages awarded respondents against Richardson; that the issue of coverage has not been adjudicated on its merits and should be if either party wishes; that petitioner is not estopped to present its defense of lack of coverage.

The judgment of the Court of Appeals is affirmed. The case is remanded with clarifying directions that the parties be afforded an opportunity to litigate the issue of insurance coverage found to be a genuine issue of material facts by the Court of Appeals, and for such further proceedings deemed necessary, consistent with the opinion of this Court.

HENRY, C. J., and COOPER, FONES and HARBISON, JJ., concur.


author: HENRY, Chief Justice. FONES, Justice,

text:
    FEDERAL EXPRESS CORPORATION, Appellant, v. Jayne Ann WOODS, Commissioner of Revenue, State of Tennessee, Appellee.
    Supreme Court of Tennessee.
    July 17, 1978.
    Erich William James, Jerred G. Blanchard, Jr., Memphis, for appellant; Waring, Cox, James, Sklar & Allen, Memphis, of counsel.
    Brooks McLemore, Jr., Atty. Gen., William J. Haynes, Jr., Asst. Atty. Gen., Nashville, for appellee.
   OPINION

HENRY, Chief Justice.

This action, brought pursuant to Section 67-2301, T.C.A., et seq., seeks to recover $117,125.55 in use taxes and interest paid under protest. Federal Express Corporation, an interstate air carrier, takes the position that its use of aircraft parts and materials on which the tax was assessed is exempt from taxation under Section 67-3012, T.C.A. Federal Express does not contest the State’s right or power to levy the tax. The sole issue facing this Court is whether appellant is entitled to the statutory exemption.

I.

Federal Express is a Delaware corporation with its principal office in Memphis, Tennessee, where it also stores and maintains its fleet of 52 aircraft and the parts used to repair them. It conducts an express parcel package shipping business to more than seventy cities throughout the United States.

Its main offices, originally located in Arkansas, were moved in February 1973 to Memphis, which offered a more favorable site from which to operate Federal Express unique “hub and spokes” system. I nder this method of operation all packages carried by Federal Express pass through a central “hub,” the principal office in Memphis, where they are unloaded, sorted according to destination, and put on aircraft scheduled to stop in the city of a package’s destination. Thus, every flight is scheduled either to originate or terminate in Memphis. Additionally, under this system, every flight either originates or terminates in a state other than Tennessee.

Federal Express schedules service so that all inbound flights are full upon arrival in Memphis and each outbound flight is full upon departure. The president and chief operating officer of the company described Federal Express’ operation as follows:

[I]f you look at Federal Express like a laundry service and assume that the big laundry is in Memphis, we schedule flights on the basis that we don’t care if we pick up one sheet or one pillow case in Syracuse as long as we arrive at the laundry filled.
So, we would route an aircraft . from Syracuse to Detroit to Lexington to Nashville to Memphis to assure arrival full. And by the same token an outbound flight would be filled and routed in a way that was more or less a straight line out to [the] ultimate destination as well.

During the audit period, February 1973 through May 1974, appellant served three Tennessee cities: Chattanooga, Memphis and Nashville. Although the bulk of its business was interstate and all flights were scheduled to pass between Memphis and a city in another state, Federal Express did carry some packages whose origin and destination both lay within Tennessee. The number of such packages and amount of revenues they produced were apparently very small in relation to the total size of appellant’s business.

In 1975, the State assessed, and Federal Express paid under protest, $117,125.55 in tax and interest upon appellant’s use of parts and materials to service and maintain its aircraft in Memphis. Federal Express instructed its agents in Tennessee not to accept any packages for delivery to another Tennessee city and brought this action, claiming an exemption under Section 67-3012, T.C.A.

Paragraph eight of Section 67-3012 reads as follows:

There shall also be exempt from sales or use tax, use, storage, or consumption, of parts, accessories, materials and supplies to or by commercial interstate or international air carriers, who perform no intrastate carrier services, for use exclusively in servicing and maintaining such carrier’s aircraft, which aircraft are used exclusively in interstate or international commerce. (Emphasis supplied.)

The State argued that the deliveries of packages from one Tennessee city to another, although the entire flight on which the package was carried was interstate in nature, constituted “intrastate carrier services” so that Federal Express’ aircraft were not “used exclusively in interstate . commerce.”

The chancellor held that Federal Express was not entitled to exemption from the use tax under Section 67-3012 because “while it was engaged almost exclusively in interstate commerce it did provide a small amount of intrastate services during the tax period.”

II.

Federal Express advances three arguments in support of its position that its use of aircraft parts should be exempt under the statute. It first argues that it did not perform intrastate carrier services within the meaning and contemplation of Section 67-3012. Second, even if it was engaged in intrastate services under the statute, the small volume of packages flowing between Tennessee cities and the minute amount of revenues derived therefrom warrant the application of the maxim de minimis non cur-at lex, allowing the courts to ignore the intrastate shipments for purposes of the exemption. Third, Federal Express urges this Court to construe the phrase “no intrastate carrier services” to mean “no substantial intrastate services.”

The problem is essentially one of statutory construction. The rules to be followed in construing statutes granting exemptions from taxes are clear.

Generally, laws imposing taxes are construed strongly against the taxing authority, with any doubt or ambiguity being resolved in favor of the taxpayer. Crown Enterprises, Inc. v. Woods, 557 S.W.2d 491 (Tenn.1977); White v. Roden Electrical Supply Company, Inc., 536 S.W.2d 346 (Tenn.1976).

When the question, however, is one of whether a taxpayer is exempt from a tax, the exemption statute must be construed against the individual claiming the exemption. Crown, supra; Smoky Mountain Canteen Co. v. Kizer, 193 Tenn. 598, 247 S.W.2d 69 (1952). Exceptions from taxation must positively appear and will not be implied. Hall Contracting Corp. v. Tidwell, 507 S.W.2d 697 (Tenn.1974); Tennessee Blacktop, Inc. v. Benson, 494 S.W.2d 760 (Tenn.1973).

As this court stated in American Bemberg Corp. v. City of Elizabethton, 180 Tenn. 373, 378, 175 S.W.2d 535, 537 (1943):

Exemptions from taxation are contrary to public policy and can only be allowed when granted in clear and unmistakable terms. They are not creatures of intendment or presumption. If the language in which they are claimed to be granted leaves it doubtful, the benefit of the doubt must be given to the State, the life of which is taxes.

As stated in Crown, supra at 493, the fundamental rule of statutory construction is “to ascertain and give effect to the intention or purpose of the legislature as expressed in the statute.” This intent is gathered from a reading of the statute giving the language and words used their natural, ordinary and commonly accepted meaning. The language must be considered in the context of the entire statute without any forced or subtle construction extending its import. Worrall v. Kroger Co., 545 S.W.2d 736 (Tenn.1977); Metropolitan Government of Nashville & Davidson County v. Motel Systems, Inc., 525 S.W.2d 840 (Tenn.1975).

Before a taxpayer is entitled to exemption under paragraph eight of Section 67-3012, it must “perform no intrastate carrier service.” Although Federal Express is primarily engaged in an interstate operation, this does not make its entire business interstate. A business may be engaged in transactions of both types; the character of an activity is determined by the particular transaction involved. Burton Explosives, Inc. v. Strider, 25 Tenn.App. 440, 158 S.W.2d 731 (1941).

The word “intrastate” is defined in Webster’s Third New International Dictionary (1976) as meaning “existing within a state.” See also David Cabrera, Inc. v. Union de Choferes y Dueños, 256 F.Supp. 839 (D.P.R. 1966); State v. Western Transportation Co., 241 Iowa 896, 43 N.W.2d 739 (1950); American Airlines, Inc. v. Battle, 181 Va. 1, 23 S.E.2d 796 (1943). The same text defines a carrier as an “individual, partnership, corporation, or any organization engaged in transporting passengers or goods for hire by land, water, or air.” In light of the clear, common and ordinary meaning of the phrase “intrastate carrier service,” we cannot say that a carrier intending to and actually providing a service by which goods are transported between two points within Tennessee does not perform “intrastate carrier services” under the terms of the statute.

Federal Express argues that, because its “hub and spokes” system is different from the point-to-point system employed by other air carriers, it is not engaged in intrastate service despite the fact that it carries packages from one Tennessee city to another. It insists that intrastate service “entails the actual scheduling of a flight from one point in Tennessee to another point for the purpose of transporting passengers or freight between these points.” As we see it, this is, in effect, what Federal Express did. The fact that it provided service from one Tennessee city to another in a unique manner or the fact that the flight on which intrastate packages were carried may have originated or would terminate in another state does not affect the nature of the individual service actually provided. It is immaterial that Federal Express, for business reasons, had no need to be concerned with a package’s points of origin and delivery (other than when it was being sorted in Memphis) and therefore was unaware that it was carrying goods between two cities within Tennessee.

Likewise, the fact that the system under which Federal Express operates had not been developed or even contemplated at the time the legislature passed the exemption is persuasive. For this Court to say that the legislature intended or would have intended that the exemption apply under nonexistent circumstances whose future existence it could not have contemplated would allow by implication an exception to taxation contrary to the most fundamental rules of construction of exemption statutes.

Having determined that Federal Express was engaged in intrastate carrier service under Section 67-3012, we proceed to appellant’s insistence that the Court apply the maxim de minimis non curat lex, or “the law cares not for trifles,” and hold that its intrastate services are too insignificant for the Court to notice. This would be an improper case for the application of the doctrine, for by the words of the statute (“no intrastate carrier services,” “exclusively in interstate commerce”) intrastate activities are not to be ignored. Unlike the courts in the cases cited by appellant which have applied the de minimis doctrine when determining whether an inappreciable amount of interstate activity subjected an employer to the federal Fair Labor Standards Act of 1938, this Court cannot infer that the legislature intended by implication to exclude from taxation a carrier providing an inconsequential amount of intrastate services.

Nor can this Court construe the phrase “no intrastate carrier services” to mean “no significant, or substantial, intrastate carrier services,” as Federal Express urges. The words of the statute are plain and unambiguous. We can only assume that the legislature intended what it wrote and meant what it said. This conclusion is enforced by the phrase in the same sentence that a carrier’s aircraft must be “used exclusively in interstate or international commerce.” (Emphasis supplied.) To add the qualification that the intrastate services spoken of by the statute must be significant or substantial would be to clarify an inexistent ambiguity.

This Court recognizes that the results commanded by the statute seem harsh under the facts of this case, where transactions yielding only $6,000 in revenue result in almost twenty times that amount in use tax and interest. However, as this Court stated in Miller v. Childress, 21 Tenn. 320, 321-322 (1841):

Where a statute is plain and explicit in its meaning, and its enactment within the legislative competency, the duty of the courts is simple and obvious, namely, to say sic lex scripta [so is the law written], and obey it.

Appellant’s proper source of relief lies with the legislature.

The decision of the Chancellor is

Affirmed.

COOPER and HARBISON, JJ., and RUSSELL, Special Justice, concur.

FONES, J., dissents.

FONES, Justice,

dissenting.

I respectfully dissent.

The majority gives no consideration to what I see as the real substance of the exemption provided in the relevant paragraph of T.C.A. § 67-3012. Its purpose is to exempt parts and accessories used exclusively in servicing aircraft, “which aircraft are used exclusively in interstate or international commerce.” (Emphasis added.)

In short, in determining the legislative intent in the use of the phrase “intrastate carrier services,” I think the controlling facts are the use of the aircraft and not the origin and destination of .07% of the packages involved in the Federal Express operation. It is conceded that Federal Express did not operate a single flight, during the period in question, that originated and terminated in the State of Tennessee. The majority of the passenger airlines that serve Tennessee cities are unquestionably, in my opinion, engaged exclusively in interstate commerce, in spite of the fact that most, if not all of said airline flights carry passengers who enplane in one Tennessee city and deplane in another Tennessee city, in the course of interstate flights originating in one state and terminating in another.

It is my opinion .that the Legislature intended to exempt the aircraft of all airlines operating in the usual and customary interstate manner stated above. On the issue before us, I see no distinction between passengers and packages. It is cleár to me that there is no valid factual distinction to be drawn between the operation of Federal Express and a passenger airline operation described above, insofar as whether or not either provides “intrastate carrier services.”

I am convinced that Federal Express performs no intrastate carrier service and that its aircraft are used exclusively in interstate commerce.

I would reverse the Chancellor and award a recovery in favor of Federal Express in the sum of $117,125.55, plus interest.

      . For example, a package from Chattanooga for delivery in Nashville would be picked up on a flight originating in Newark, New Jersey, going through Harrisburg, Pennsylvania; Chattanooga; and Memphis. It would depart Memphis on a flight passing through Nashville (where the package would be delivered) and continuing on to Louisville, Kentucky, and Dayton, Ohio.

      . For the ten months during the audit period for which figures are available, revenues derived from shipments of packages between Tennessee cities ($5,982.02) constituted only .06% of Federal Express’ total revenues ($10,553,506). The number of packages carried between Tennessee cities (739) was only .07% of the total number of packages flowing through the entire system (1,049,832).

      . Rauhoff v. Henry Gramling & Co., 42 F.Supp. 754 (E.D.Ark.1941); McDaniel v. Clavin, 128 P.2d 821 (Cal.App.1942); Wiley v. Stewart Sand & Material Co., 240 Mo.App. 392, 206 S.W.2d 362 (1947).