text:
    In the ESTATE OF Clara BENDS, Deceased. C. Marvin HURT, Respondent, v. Frances DEAL, Executrix of the Estate of Clara Bends, Deceased, Appellant.
    No. 11154.
    Missouri Court of Appeals, Southern District, En Banc.
    Oct. 24, 1979.

      Anthony J. Heckemeyer, Sikeston, for respondent.
    Phillip J. Barkett, Jr., Dempster, Fuchs & Barkett, Sikeston, for appellant.
   PREWITT, Judge.

Executrix appeals from a judgment allowing respondent’s claim for $1,614.55 against the estate of Clara Bends, deceased. Decedent is the mother of respondent and had resided with him for several years prior to her death. She died on August 26, 1977 and on August 29, 1977, appellant was appointed executrix of her estate. Appellant is the ex-wife of respondent and the mother of their son, Lewis Wayne Hurt, a resident of Kansas and the sole beneficiary of Mrs. Bends’ estate. From September 23, 1977 through October 1, 1977, respondent paid various bills for which he sought reimbursement. He paid the physician’s and hospital bills for her last illness, which weré $135.00 and $125.00 respectively. He paid her funeral bill of $1,184.25 and $50.00 for the minister’s conducting of the service. He also paid city and county real estate taxes of $28.57 and $91.73 on property formerly owned by the deceased, which is now an asset of the estate.

Respondent paid these bills as they came to his residence in the mail. He did not receive assignments from any of the creditors. He “knew” he would be reimbursed, or “thought” he would, as his mother had sufficient money in the bank. Prior to paying the bills, he did not discuss reimbursement with the executrix or the sole beneficiary of the estate. Respondent paid the bills because he and his mother “have a horror of unpaid bills”. He “didn’t want any reflection on my mother’s payment of any bills due from any source”. He thought all of the bills were reasonable. He paid them because he was “next of kin” and thought it was his “obligation to see that they were paid”. There is no contention that any of the bills were unreasonable nor that the funeral expenses were out of proportion to the estate. Respondent testified that for the last 7 or 8 years of his mother’s life, he paid all of her bills.

The trial judge found that the bills were reasonable and would have represented valid claims against the estate, if filed by the persons or entities who had been paid; that after the allowance of respondent’s claim, there will be adequate assets to pay all other claims, taxes, court costs and other expenses of administration; and that it is just and equitable that the estate reimburse respondent for the payments. Appellant contends the court erred because respondent was “a mere volunteer” and the evidence did not show that respondent “had a justifiable expectation of reimbursement for the bills that he paid”. There was little, if any, conflict in the evidence.

As relevant here, a “volunteer” is one who pays the debt of another without a request, when not legally or morally bound to do so and not in the protection of his own interest. Wallick v. First State Bank of Farmington, 532 S.W.2d 520, 523 (Mo.App.1976); 92 C.J.S. Volunteer p. 1032. A volunteer cannot recover such a payment. Wal-lick v. First State Bank of Farmington, supra, 532 S.W.2d at 523. To determine if reimbursement should be made, courts must balance the equities and consider the relationship of the parties. Recovery of payments made for others in good faith is allowed where, because of the relationship, the pay- or has reason to believe that he will be repaid. 58 C.J.S. Money Paid § 3.c.(3), p. 893. A person paying funeral expenses may be entitled to reimbursement out of the estate unless he was a volunteer. 31 Am.Jur.2d, Executors and Administrators, § 320, p. 159. Equitable principles may be invoked in the determination of the allowance of probate claims. In re Estate of Torreyson, 442 S.W.2d 110, 116 (Mo.App.1969).

Appellant cites two cases for her contention that reimbursement by the estate was improper, Loman v. Harrelson, 437 S.W.2d 123 (Mo.App.1968) and Cape Girardeau Bell Telephone Co. v. Hamil’s Estate, 153 Mo.App. 404, 134 S.W. 1103 (1911). Neither case involved a family relationship. In Lo-man, Kansas City paid an employee’s medical expenses and wages during an absence as a result of a vehicular collision. The city sought to intervene, in the employee’s personal injury action and the court held that the city was a volunteer and not entitled to any relief. Those facts are substantially different from the present case, and we feel that holding is not persuasive in our determination here. In Cape Girardeau Bell Telephone Co. v. Hamil’s Estate, the Springfield Court of Appeals held that an employer could not recover for paying an employee’s funeral expenses, and reversed the order allowing the claim. However, although not noted by either party in their briefs, that decision was not the final determination of the suit. Following the judgment allowing the claim, the estate appealed to the St. Louis Court of Appeals, which transferred the case to the Springfield Court of Appeals. The statute under which the case was transferred was declared unconstitutional and the cause retransferred. The St. Louis Court of Appeals affirmed the judgment and allowed the claim. Cape Girardeau Bell Telephone Co. v. Hamil, 160 Mo.App. 521, 140 S.W. 951 (1911). That court held that one, other than the administrator or executor, may recover funeral expenses if the expenses are reasonable and suitable to the estate and the payor is not a mere interloper. They found that the employer was not such a volunteer and was entitled to reimbursement. Id. 140 S.W. at 954.

It has usually been held that a child who pays the funeral expenses of his parent is entitled to reimbursement from the estate. See Annotation “Subrogation or Reimbursement, from Decedent’s Estate, of Persons Other Than Personal Representative or Surviving Spouse Paying Funeral Expenses”. 35 A.L.R.2d 1399 at 1406. We see no reason why such rulings should not be followed here. The trial court so found, not only as to the funeral bills, but as to the other expenses. In this non-jury case, we should not reverse unless we find there is no substantial evidence to support its ruling, unless it was against the weight of the evidence, unless it erroneously declared the law, or erroneously applied the law. Rule 73.01, V.A.M.R.; Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We believe the trial court correctly allowed the claim in applying the law and equitable principles to the facts.

The relationship was such that respondent was not a “mere volunteer”. Mrs. Bends was his mother, she lived with him, and he had paid her bills for years. He knew she left sufficient funds to reimburse him. Besides the ultimate decision in Cape Girardeau Bell Telephone Co. v. Hamil, above noted, other Missouri decisions have allowed similar reimbursement from an estate. Maupin v. Boyd, 5 Mo. 106 (1838); Costello v. Brune, 217 Mo.App. 587, 272 S.W. 1056 (1925). In Maupin, reimbursement was allowed to a widow’s new husband when he paid certain expenses of the deceased husband. In Costello, the husband paid taxes and insurance on property of his deceased wife. The allowance of his claim was affirmed on appeal. The' court noted that the evidence supported a finding that the payments were not voluntary but made with the expectation of reimbursement. Costello v. Brune, supra, 272 S.W. at 1057. Under the evidence, we find no error in the trial court’s allowing the claim.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: PREWITT, Judge.

license: Public Domain

text:
    Albert RIPKA and Darrell Ripka, Plaintiffs-Appellants, v. Lawrence WANSING and John Wansing, Defendants-Respondents.
    No. 10726.
    Missouri Court of Appeals, Southern District, En Banc.
    Oct. 26, 1979.

      Albert Crump, Jr., Williams & Small-wood, Rolla, for plaintiffs-appellants.
    Victor Tell Neff, Barry, Neff, Gallaher & Venters, Jefferson City, for defendants-respondents.
   PREWITT, Judge.

Plaintiffs appeal from a judgment denying their petition for injunctive relief. They sought an injunction to prevent defendants from pumping water for irrigation from a stream known as Sugar Creek.

The plaintiffs and defendants each own two tracts of agricultural land along the creek. As relevant here, Sugar Creek flows northwesterly across land owned by plaintiffs, then across land owned by defendants, then across land owned by Ben Huhmann, then across defendants’ second tract, and then across plaintiffs’ second tract. Defendants used the water to irrigate corn and alfalfa upon their land adjoining the creek. When rain was insufficient, the defendants pumped water from the creek for a period of one to three hours two times a day. Their irrigating equipment was calculated to pump 280 gallons per minute. For at least a part of the time since defendants started irrigating, plaintiffs had cattle on their land.

Plaintiffs’ pleadings contend that defendants’ use has, or will, cause the stream of water along the creek to be greatly reduced in volume and has, or will, cause the creek to become dry, resulting in injury to plaintiffs in the operation of their cattle business. They contend that the pumping created at least a one-third or ten inch drop in the water level along their land. There was evidence from defendants and their witnesses that the pumping had no noticeable effect upon the flow of water across plaintiffs’ land.

At the trial, the plaintiffs did not offer evidence that their cattle business had been damaged. Their first point contends that the trial court erred in admitting evidence that plaintiffs’ cattle operation was not injured by defendants’ use. Plaintiffs sought to prevent defendants’ counsel from inquiring, on cross-examination of plaintiffs, about losses and damage regarding plaintiffs’ cattle. Plaintiffs claim that the evidence was improper as it only shows lack of specific injury. The appropriate standard, they contended, was for the court to determine if defendants unreasonably interfered with the plaintiffs’ riparian rights by substantially reducing the flow of Sugar Creek. Plaintiffs’ second point is that the court erred in admitting testimony, brought out in cross-examination of Plaintiff Albert Ripka, regarding statements which were allegedly part of an offer of settlement. Plaintiffs’ third point is that the trial court erred in denying the injunction as “the decision was against the weight of the evidence and an erroneous application of the law”.

It has generally been considered that the common law developed two theories of the water rights of one owning property along a natural surface water course; the “natural flow” theory and the “reasonable use” theory. See ch. 41, Restatement of Torts, Second (1977) pp. 210-211; Burrell and Stubbs, “The Rights of a Riparian Landowner in Missouri”, 19 Mo.L.R. 138 (1954). Some contend there is only the reasonable use theory. See Lauer, “Reflections on Ri-parianism”, 35 Mo.L.R. 1 at 3 (1970). Plaintiffs’ contentions and argument under Points I and III appear to be based upon the natural flow theory. Under this theory, each proprietor of a water course is entitled to have the body of water flow naturally, qualified only by limited uses of those above him. This theory would prohibit certain uses although harm is not shown to others. Under the natural use theory, it has been indicated that stream water cannot be used for irrigation. Burrell and Stubbs, supra, 19 Mo.L.R. at 146.

The “reasonable use” theory allows each riparian proprietor to make a reasonable use of the water for any purpose, providing that the use does not cause harm or damage to the reasonable uses of others. Missouri appears to have adopted the reasonable use theory. See Bollinger v. Henry, 375 S.W.2d 161 (Mo.1964) and Higday v. Nickolaus, 469 S.W.2d 859 (Mo.App.1971). However, neither of these cases involved a natural stream of surface water. Bollinger involved an artificial water course and Hig-day underground water. It has been questioned whether Missouri courts have adopted any riparian theory. See Lauer, supra, 35 Mo.L.R. at pp. 4, 5, n.9. If Missouri has not adopted the reasonable use theory, we believe it should. It appears to be more flexible and promotes the most beneficial use of water resources. The reasonable use theory is adopted by the Restatement. Restatement of Torts, Second, §§ 850-850A (1977). The elements to determine reasonable uses are set forth in § 850A of the Restatement of Torts, Second. It says:

“Reasonableness of the Use of Water
The determination of the reasonableness of a use of water depends upon a consideration of the interests of the riparian proprietor making the use, of any riparian proprietor harmed by it and of society as a whole. Factors that affect the determination include the following:
(a) The purpose of the use,
(b) the suitability of the use to the watercourse or lake,
(c) the economic value of the use,
(d) the social value of the use,
(e) the extent and amount of the harm it causes,
(f) the practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other,
(g) the practicality of adjusting the quantity of water used by each proprietor,
(h) the protection of existing values of water uses, land, investments and enterprises, and
(i) the justice of requiring the user causing harm to bear the loss.”

It is with these guidelines in mind that we consider the questions presented. Plaintiffs’ first point claims that the trial court should not have allowed evidence that plaintiffs had no specific loss or damage to their cattle business. Plaintiffs contend that the appropriate standard is whether defendants interfered with the riparian rights of plaintiffs by substantially reducing the flow of Sugar Creek. As earlier noted, this argument seems to be based upon the principles of the natural flow theory. We do not believe this argument has merit when we consider it in view of the reasonable use theory. Under the reasonable use theory, the court should consider “the needs of other riparian proprietors”. Bollinger v. Henry, supra, 375 S.W.2d at 166. The court should also consider the extent and amount of harm the defendants’ use causes. Restatement of Torts, Second, § 850A(e), p. 220 (1977). Point I is ruled against plaintiffs.

Plaintiffs’ second point contends the trial court erred in admitting evidence as to statements made by one of the plaintiffs because they were made as a part of an offer of settlement. The following took place during plaintiff Albert Ripka’s testimony:

“MR. NEFF: Yes, Your Honor, on or about August 18th, 1976, did you have a telephone conversation with Mr. Wans-ing?
THE WITNESS: Yeah. Yeah, I know what you mean now.
Q (by Mr. Neff) Now, during that conversation did you not tell the Wansings that they could dig as many holes and pump as much water as they wanted? A Yeah, I was wanting to get it over with.
MR. CRUMP: I object, Your Honor. I believe that was a statement made by Mr. Ripka in offer of settlement and as such I believe it would be privileged information.
MR. NEFF: That’s not an offer of settlement.
THE COURT: I’ll overrule it and I’ll permit the answer to stand. I think I understood his answer.
Q (by Mr. Neff) Did you at that time tell him you had all the water that you needed?
MR. CRUMP: I object on the same basis.
THE COURT: Overruled.
THE WITNESS: I told them that I could get by with the water down there.”

The trial court sitting without a jury has wide latitude in the admission of evidence. Spielberg Manufacturing Co. v. Direct Sales International, Inc., 566 S.W.2d 839, 840 (Mo.App.1978). Whether these statements would have been admissible, if part of a settlement discussion, is not before us. The record does not show what, if any, settlement offer this conversation was a part of, and we cannot rule that it was inadmissible for that reason, when the record does not so show. Point II is ruled against plaintiffs.

Plaintiffs’ final point is that the court’s decision was against the weight of the evidence and an erroneous application of the law. Our scope of review under Rule 73.01, V.A.M.R. in a court tried case is to sustain the trial court’s determination unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). No findings of fact were requested or made. Where there is conflicting testimony and no findings of fact are made, all fact issues are deemed to have been found in accordance with the result reached. Spielberg Manufacturing Co. v. Direct Sales International, Inc., supra, 566 S.W.2d at 841. We should affirm the trial court if it can be sustained upon any reasonable theory under the law and the evidence. Roth v. Roth, 571 S.W.2d 659, 664 (Mo.App.1978). The evidence supported a finding that the defendants’ use of the water from Sugar Creek for irrigation was a reasonable use. There was evidence that no harm was caused to the plaintiffs and that the use had no noticeable effect on the water flowing downstream. There was also evidence that there was always water at least in pools on Sugar Creek and always sufficient water for cattle. Under the reasonable use theory, other proprietors have a limited right to use the water to irrigate. Bollinger v. Henry, supra, 375 S.W.2d at 166. We cannot say that the use was unreasonable where there was evidence that the flow of the stream was not affected and plaintiffs were not damaged by defendants’ use. The credibility of the testimony was for the trier of fact. Labor Discount Center, Inc. v. State Bank & Trust Company of Wellston, 526 S.W.2d 407, 420-421 (Mo.App.1975). There was substantial evidence to support the trial court’s ruling under the applicable law. Point III is ruled against plaintiffs.

The judgment is affirmed.

All concur.


text:
    Sylvia B. MARTIN, Plaintiff-Respondent, v. Allie WEST et al., Defendants, and Eugene Wilkins and Steve Wilkins, Defendants-Appellants.
    No. 11170.
    Missouri Court of Appeals, Southern District, En Banc.
    Oct. 26, 1979.
    David G. Neal, Eminence, for plaintiff-respondent.
    Armand P. Brodeur, Salem, for defendants-appellants.
   PREWITT, Judge.

Defendants-appellants appeal from a judgment of the trial court, sitting without a jury, reforming a deed and determining that plaintiff-respondent is the sole owner of certain real estate in Shannon County and quieting title to it in her.

Respondent is a daughter of Mae L. West, and appellant Eugene Wilkins is Mae L. West’s son by a different marriage. Appellant Steve Wilkins is Eugene Wilkins’ son. Mae L. West died June 21, 1976. By deed dated October 4,1973, respondent and Mrs. West were grantees “as joint tenants, with full rights of survivorship,” to a tract of land 50 feet X 75 feet. The property described was the back yard of a residence occupied by Mae L. West. Respondent offered evidence by one of the grantors that the deed should have described a tract 100 feet X 75 feet. The 50 feet omitted included the front of the lot and was the part of the lot on which the residence was located. The trial court reformed the deed so as to describe the 100 foot X 75 foot tract. Two other deeds were admitted in evidence but were not reformed. There is no claim before us of lack of sufficient evidence, if admissible, to support the trial court’s ruling, so we need not detail the evidence.

Appellants advance two points for our review; these are: (1) that the trial court erred because its judgment was based upon parol testimony that the parties to the deeds did not intend to make the conveyance made, which evidence was improper because “the grantors were estopped by their own deeds to offer said testimony”, and (2) that the trial court erred because it did not make a specific findings of fact and conclusions of law as “to the estoppel by deed issue”.

We first consider appellants’ initial point. Jesse Sconce was the only grantor who testified regarding the deeds. Appellants objected to his testimony that he intended to convey the full 100 foot X 75 foot lot, rather than the 50 foot X 75 foot portion. Appellants contend that evidence by the grantor cannot be used to contradict an unambiguous deed. Appellants cite, along with case authority, 31 C.J.S. Estop-pel § 13, p. 298. It states that a grantor is estopped to assert testimony in derogation of his deed. Here Mr. Sconce did not testify in derogation of the deed nor did he question the title he gave. He said that he should have conveyed more than the deed provided. He confirmed respondent’s theory that the deed was incorrect, due to a mutual mistake. In the cases cited by appellants, there was no claim of mutual mistake. Where relief by reformation of a deed is claimed due to mutual mistake, pa-rol evidence is admissible to show the intentions of the parties to buy, sell, and convey different ground than that described in ah unambiguous deed. Walters v. Tucker, 308 S.W.2d 673, 675 (Mo.1957). Also see State ex rel. State Highway Commission v. Schwabe, 335 S.W.2d 15 (Mo.1960) and Leimkuehler v. Shoemaker, 329 S.W.2d 726 (Mo.1959). The evidence as to the error in the deeds was admissible. The first point is ruled against appellants.

Appellants’ second point is that the trial court’s findings of fact and conclusions of law never addressed “the estoppel by deed issue”. At the conclusion of the evidence, appellants’ counsel informed the court “We’d request a finding of fact and conclusions of law.” No more specific request was made. Rule 73.01.1(b), V.A.M.R., provides that the trial court “may, or if requested by counsel, shall, include its findings on such controverted fact issues' as have been specified by counsel.” The rule further provides that for the purpose of appellate review of cases tried without a jury “No findings of fact, except such as shall have been requested, . . . are necessary.” Rule 73.01.2(a), V.A.M.R. The trial court cannot be charged with error for not making findings which were not specifically requested. First Florida Building, Inc. v. Safari Systems, Inc., 570 S.W.2d 728, 730 (Mo.App.1978). The second point is ruled against appellant.

The judgment is affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    STADIUM BANK, Respondent, v. Curley MILTON et al., Appellants.
    No. KCD 29892.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.

      Richard L. Colbert and Mildred L. Watson, North, Colbert & Fields, Kansas City, for appellants.
    Jim Tom Reid, Shockley, Reid & Koger, Kansas City, for respondent Stadium Bank.
    Justin J. Johl, Asst. Counsel, Missouri State Highway Commission, Kansas City, for respondent Mo. St. Hwy. Comm.
    Fred Bellemere, Jr., Bellemere, Manford & Bellemere, Kansas City, for respondents, Charles Mahany .and Vera Mahany.
    Before SHANGLER, P. J., WASSER-STROM, C. J., and CLARK, J.
   SHANGLER, Presiding Judge.

This multiple litigation arises from an acquisition by the Missouri State Highway Commission of the Milton property by eminent domain and a consequent relocation of the Miltons under the Uniform Relocation Assistance Act, 42 U.S.C. §§ 4601 et seq. To facilitate replacement of the dwelling taken from the Miltons, the Highway Commission advanced to an escrow account at the Stadium Bank the sum of $4,150 authorized under the Act which the Miltons then pledged for a loan from the Stadium Bank — in an equivalent sum — used by the Miltons to conclude a contract for purchase of a relocated dwelling from the Mahanys. The Miltons thereafter refused to perform the contract for purchase, made default on the note obligation to Stadium Bank, and the litigation ensued.

The original action was a suit in two counts by the Stadium Bank. Count I was against Curley Milton and Margaret Milton, husband and wife, on the promissory note executed by them in pledge of the escrow account to their benefit. That ninety-day obligation went unpaid, and after evidence, the court entered judgment for the Stadium Bank for $5,014.13, principal and interest, and $500 for an attorney fee for collection. The Miltons defended by formal plea of fraud in particulars: that the Stadium Bank “did not allow” the Miltons to read either the promissory note or the escrow agreement prior to their signatures; that the plaintiff Bank did not “attempt to explain to [them] the documents they signed,” and that the Miltons “relied upon the misleading statements and representations of [the Bank].” The only evidence in defense was that of Ms. Milton who contended she had never seen the note before and had made no payment under that instrument. There was no doubt of the Milton endorsements on the Bank check for the proceeds of loan or that payment had been made on that instrument. The judgment on Count I was made interlocutory and, in due course, became final. The defendants Milton do not appeal from the judgment in Count I.

Count II alleges that Stadium Bank holds $4,150 as escrow agent by agreement between the Highway Commission which deposited the fund under the terms of the Act and the Miltons to whom the fund became payable on the event of their purchase and occupancy — within the year — of a replacement habitation. The petition alleges further that although the Miltons purchased a replacement habitation, they refused to occupy that dwelling so that, by terms of agreement, the escrow fund may not be paid to the Miltons, but that the Miltons might yet occupy the new premises and make demand on the Bank for the fund. Count II seeks an order that the Miltons and the Highway Commission interplead to enable the court to adjudicate right to the fund and thereby discharge the Bank from liability. The defendants Milton made formal defense to Count II, once again on a plea of fraud; both unspecified — that the “fraudulent misrepresentation of [the Bank] alone and in conjunction with [the Mahanys] and the Highway Commission” and specified: that “[the Miltons] were not allowed to fully read said [escrow] agreement nor was the same fully explained to them by [the Bank] or the [Highway Commission].” On hearing, the court entered judgment for the Highway Commission on undisputed testimony of the defendants Milton that time for purchase and occupancy of a replacement dwelling had lapsed. The judgment on Count II was made final for purpose of appeal. The Miltons do not appeal from the judgment in Count II.

The appeals are from a third party petition by the Miltons against the Mahanys [sellers of the replacement dwelling], a crossclaim by the Miltons against the Highway Commission, and a counterclaim by the Miltons against the Stadium Bank, each on allegations of fraud, and each adjudicated adversely to the Miltons. These actions were separated from Count I and Count II for trial to a jury. At the threshold of trial, however, counsel submitted to the court the questions of law raised by the amendment of pleadings. These were considered on exhibits and arguments of counsel, and ruled adversely to the Miltons.

The third party petition was concluded against the Miltons on principles of res judi-cata. The court ruled that the cause of action for fraud was determined by the judgment entered in the District Court of Wyandotte County, Kansas: Charles E. Ma-hany and Yera Jean Mahany v. Curley Milton and Margaret Elizabeth Milton and the Gibraltar Savings & Loan Association, Number 55309-B. That proceeding discloses that the Miltons contracted to purchase the Mahany residence as a replacement dwelling for an agreed $14,000 purchase price. To facilitate the transaction, the Highway Commission agreed to deposit the $4,150 relocation benefit into the Stadium Bank escrow account for release on actual occupancy by the Miltons of the Mahany property. The loan from the Stadium Bank of $4,150 to the Miltons issued contemporaneously and the Miltons executed the ninety-day promissory note [the subject of Count I] secured by their interest in the escrow account. Thereupon, the Miltons obtained a $5,500 mortgage loan from Gibraltar Savings & Loan to complete the purchase price and the Mahanys delivered their deed to Gibraltar. The Miltons, however, refused to perform further. Gibraltar cancelled the mortgage obligation but the Mahanys sued the Miltons in the Kansas action for specific performance of the agreement to purchase the dwelling. The answer of the Miltons set up the fraud of the Mahanys to vitiate the contract and, by counterclaim, asserted damages from the fraud. The causes were tried to a jury and the issues determined in favor of the Maha-nys and against the Miltons. The judgment became final and the time for appeal lapsed.

It is the contention on appeal that the third-party petition against the Maha-nys continues intact because they did not meet the burden to prove the affirmative defense of res judicata. That defense may be raised by motion under Rule 55.27 to dispose of an action rendered groundless by uncontroverted facts. Williams v. Williams, 497 S.W.2d 415, 417[l-3] (Mo.App.1973). The motion will not prove itself but must be shown by evidence. Randall v. St. Albans Farms, Inc., 345 S.W.2d 220, 223[2] (Mo. 1961). In this case, the issue of res judicata by reason of the Kansas judgment was not controverted by any pleading. It was admitted. The proponents of that defense, nevertheless, adduced not only the judgment, authenticated under the Act of Congress, but also the pleadings and other entries of the Kansas proceeding.

The rule of res judicata operates to prevent a party or privy to relitigate facts or questions in issue in a former action between the same parties which has been settled by a judgment on the merits, whatever form the issue may take in the subsequent action, or whether upon the same or different cause of action, claim, demand, ground or theory. Varnal v. Kansas City, 481 S.W.2d 575, 579[3] (Mo.App. 1972). The test for res judicata, therefore, is whether the litigations present an identity of issues. Jackson v. Hartford Accident and Indemnity Company, 484 S.W.2d 315, 321[1, 2] (Mo.1972).

The petition by the Mahanys in the Kansas action pleaded the contract to purchase the replacement dwelling for $14,000, the deposit of money as part performance, the agreement by the Miltons to apply the Highway Commission [escrow fund] to the purchase price, and their agreement to complete performance by a mortgage loan. The answer of the Miltons alleged that they were misled to believe the dwelling was to be sold for $12,000 and not the $14,000 recited in the contract of purchase, that the Mahanys falsely represented they would carry the purchase balance due free of interest, but that examination of the instrument signed by the Miltons disclosed an indebtedness for the balance to the Gibraltar Savings and Loan at interest; that the Mahanys falsely represented they would recondition the dwelling, which they then refused to do. These allegations of fraud were incorporated by reference in a counterclaim against the Mahanys for actual and punitive damages.

The third party petition merely' iterates the same fraud against the Maha-nys as in the Kansas action: the misrepresentation of the purchase price to be $12,-000 rather than the eventual $14,000, the deception as to the nature of the promissory obligation — at interest rather than interest free — and the false promise to recondition the dwelling. These contentions and the cause of action which they assert, without doubt, are identical to those pleaded by the Miltons against the Mahanys in the prior action and are concluded by the Kansas judgment. They are not subject to relitigation by the third party petition. Butler v. Manley, 416 S.W.2d 680, 682[1, 2] (Mo.App.1967). The third party petition alleges, in addition, a spate of incidences of fraud by the Mahanys in concert with the Stadium Bank to induce the promissory note and escrow agreement, not pleaded in the Kansas action. These grounds, however, relate to the same delict: the fraudulent inducement to the purchase of the Mahany real estate. The fraud pleaded against the Ma-hanys in concert with the Stadium Bank merely asserts a cumulative ground for the right to damages from the same operative facts. A party may not litigate an issue and then, upon adverse verdict, revive the same claim on contentions which could have been brought before the court of the first proceeding. Reis v. La Presto, 324 S.W.2d 648, 652[2—5] (Mo.1959). To allow the third party pleading as a separate recovery would be to fission the single cause of action which accrued to the Miltons from the wrong done them by the fraudulent inducement to contract practiced by the Mahanys. Jackson v. Hartford Accident and Indemnity Company, supra, l.c. 321[3]; Varnal v. Kansas City, supra, l.c. 579[3].

The burden to prove res judicata was met by evidence of the Kansas judgment and the congruence of that cause of action with the primary right asserted by the third party petition pleadings. Williams v. Williams, supra, l.c. 417[1-3]. The court properly adjudicated the third party claim in favor of the Mahanys by dismissal of the petition.

The court also dismissed with prejudice the crossclaim for damages for fraud by the Miltons against the State Highway Commission on the ground that the defense of sovereign immunity to tort [then extant as the rule of decision in such cases] barred recovery. The Miltons do not doubt that premise of adjudication. They contend, nevertheless, that the crossclaim alleges a valid, nontortious cause of action for failure of statutory duty by the Highway Commission under the Uniform Relocation Assistance Act “to fully explain the escrow agreement and the legal effect” of other kindred aspects of the relocation transaction.

That enactment [42 U.S.C. §§ 4621 et seq.] has for a purpose “the fair and equitable treatment of persons displaced as a result of federally assisted programs” [§ 4621]. To that end, whenever a land acquisition under such a program displaces any person, the federal agency is required to make payment for moving and related expenses [§ 4622]. To allay economic injury from the displacement, any person who occupies land taken is entitled to “current and continuing information on the availability, prices, and rentals of comparable decent, safe, and sanitary sales and rental housing,” assistance to obtain a suitable replacement location, and other advisory service to diminish the hardship of relocation [§ 4625].

The crossclaim contends that the Uniform Relocation Assistance Act obliged the Highway Commission to ensure that the Miltons understood perfectly the implications of the loan-escrow transaction with the Stadium Bank and the purchase transaction with the Mahanys. The terms of the Uniform Relocation Act simply do not require a state agency to cosset a relocatee through the replacement purchase process or act as a surrogate lawyer. The authority cited by the Miltons, Tullock v. State Highway Commission of Missouri, 507 F.2d 712 (8th Cir. 1974), merely explains that the enactment only directs the agency shall assist to allay the economic hardship of dislocation by means of benefits and the certainty of “decent, safe, and sanitary replacement dwellings.” Tuliock, supra, l.c. 716. The crossclaim raised no question of fact and was properly adjudicated against the Miltons on the pleadings as a matter of law. Cantor v. Union Mutual Life Insurance Company, 547 S.W.2d 220, 224[2-8] (Mo.App.1977).

The court determined also that the Kansas judgment foreclosed the Milton counterclaim against the Stadium Bank on principles of collateral estoppel and dismissed that cause of action. The rule of collateral estoppel bars a litigant to claim as to subject matter concluded by a judgment either against the party to the proceeding or one in privity. Oates v. Safeco Insurance Company, 583 S.W.2d 713 (Mo. banc 1979). A privy within that doctrine means one so related by identity of interest with the party to the judgment that such party represented the same legal right. Drainage District No. 1, Reformed, of Stoddard County v. Matthews, 361 Mo. 286, 234 S.W.2d 567, 574[12, 13] (1950).

The pleading by the Miltons, concluded by the Kansas judgment, attempts an action at law for actual and punitive damages against the Mahanys for fraudulent inducement to contract for real estate. The present counterclaim by the Miltons against Stadium Bank pleads for rescission [and punitive damages] for fraudulent inducement to execute the promissory note and escrow agreement of the real estate transaction. Whatever confusion of contradictory remedies and proliferated causes of action from one primary right the judgment and pleadings pose [Dill v. Poindexter Tile Company, 451 S.W.2d 365, 371[9-15] (Mo.App.1970); Lee v. Guettler, 391 S.W.2d 311, 313[1-3] (Mo.1965)] for determination of identity of interest, privity and the bar of collateral estoppel, in any event, have become irrelevant. The judgments on Count I and Count II of the Stadium Bank petition against the Miltons are res judicata to the contentions of the counterclaim.

For reason not at once apparent the counterclaim by the Miltons against the Stadium Bank was separated from Count I and Count II for trial by jury. That pleading, however, was a claim for the equity of rescission of the note obligation to Stadium Bank — a remedy within the discretion of a chancellor. Hostler v. Holland Furnace Company, 327 S.W.2d 532, 534[2] (Mo.App.1959). Those were the very issues determined by the judgments in Count I and Count II of the original Stadium Bank petition against the Miltons.

Count I alleged execution by the Miltons of the promissory note and their default. The Milton answer to that count set up the fraud of the Bank by failure to explain the documents or to allow the Miltons to read them, and the consequent nullity of the transaction. The Milton counterclaim alleged the fraud of the Bank by failure to explain the promissory note and escrow agreement or to allow the Miltons to read them as the inducements to those undertakings. Count I was adjudged for the Stadium Bank and, although given interlocutory effect, was made final concurrently with the dismissal of the counterclaim, cross-claim and third party petition of the Mil-tons, and absent appeal, has become conclusive.

Count II alleged execution by the Miltons and the State Highway Commission of the escrow agreement, the purchase of the replacement habitation, the refusal of the Miltons to occupy the dwelling in violation of that agreement, the jeopardy of the Bank for liability to both the Miltons and the State Highway Commission for the funds, and requested that the contenders be made to interplead. The Milton answer alleged the nullity of that transaction from the fraud of the Bank [conjunctively with the Mahanys and the Commission] by failure to explain the agreement or allow them to fully read the instrument. The Milton counterclaim alleged the fraud of the Bank by failure to explain the note or the escrow agreement or to allow sufficient opportunity to read them. The counterclaim seeks nullification of the promissory note only. Count I was adjudged for the Bank, ordered disbursement of the escrow fund to the State Highway Commission and adjudged the Stadium Bank be:

by virtue of the judgment of this court, forever free from any liability whatsoever to either defendants [Miltons or State Highway Commission] by reason of payment or nonpayment of said $4150 [the escrow fund] or any other fact arising out of its handling of the funds . under said escrow agreement and that defendants Milton and State Highway Commission . . . are hereby forever barred and enjoined from asserting any claim against plaintiff based upon such facts. [Emphasis added.]

The judgment on Count II was made final for purposes of appeal but none was taken.

The contentions of the Miltons, both by defense and by affirmative pleading, allege they were induced to the successive contract events of the real estate transaction by the fraud of the Bank, the Commission and the Mahanys. A victim of fraud may elect to affirm the contract and assert damages or may repudiate the transaction and be restored to status quo — but not both. Dowd v. Lake Sites, Inc., 365 Mo. 83, 276 S.W.2d 108, 112[2] (1955). One cause of action accrued to the Miltons for the fraudulent real estate transaction, whatever form of the action adopted for remedy. Grue v. Hensley, 357 Mo. 592, 210 S.W.2d 7, 10[2-5] (1948). The counterclaim elected the remedy of rescission. The cause of action to nullify the promissory note was single and could not be tried once as a defense and, after final adjudication, tried again as an affirmative cause of action. Kegan v. Park Bank of St. Joseph, 320 Mo. 623, 8 S.W.2d 858, 872[25, 26] (1927). The issue of the fraud by the Bank to induce the Milton execution of the promissory note was raised by the pleadings in Count I and was inherently ruled adversely by the judgment for Stadium Bank. The issue of the fraud' by the Bank to induce the Milton execution of the escrow agreement was raised by the pleadings in Count II and was inherently ruled adversely by the judgment for Stadium Bank and the Highway Commission. These judgments are final and conclusive as against those contentions between these parties. The Miltons had their day on the claims of fraudulent dealing by Stadium Bank. In terms of the adjudications in Count I and Count II and the later counterclaim: the public policy against pro-liferations of a cause of action inherent in the doctrine of res judicata bars a subsequent action for independent relief after a judgment in a prior action between the parties where the matter which forms the basis for relief was interposed as a defense. Arata v. Monsanto Chemical Company, 351 S.W.2d 717, 722[8] (Mo.1961); Kegan v. Park Bank of St. Joseph, supra, l.c. 872[25, 26]; 46 Am.Jur.2d, Judgments § 435; An-not., New Suit For Matter Set Up As Defense, 83 A.L.R. 642 (1933). The judgments for the Stadium Bank on Count I and Count II are res judicata to the Milton counterclaim. *

The judgment is affirmed.

All concur.

      . We do not determine whether a purchaser who rescinds may validly plead recovery for punitive damages. Boswell v. Brinckmann, 579 S.W.2d 781, 783[3, 4] (Mo.App.1979).

      . The precise terms of interlocutory judgment on Count I recite: IT IS FURTHER ORDERED that this judgment, although fully determinative of the issues of liability and the amount of damages under Count 1 of plaintiffs petition, is an interlocutory judgment which shall not be considered final for any purpose whatsoever including execution thereon and appeal therefrom until such time as the court shall have entered a final judgment in the matter of defendants Milton’s counterclaim against plaintiff and third party claim against defendants Maha-ny. [Emphasis added.]
      We can assume only that the parties misunderstood the nature of the cause of action pleaded by the counterclaim which was not at law, but in equity for rescission — the legal effect of the issue raised by the Milton answers.

      . We need not assess the propriety of the third party petition against the Mahanys and the cross petition against the State Highway Commission in terms of these principles of election of remedies and the policy against a split cause of action. They were adjudicated properly against the Miltons on the other grounds given. We notice, however, that the third party petition seeks actual and punitive damages against the Mahanys for the fraudulent transaction in conjunction with the Bank — an ostensible affirmation of the transaction and thus, in contradiction to the nullification by rescission the counterclaim pleads.


author: MANFORD, Judge.

text:
    The GRAIN VALLEY AIRPORT CORPORATION, Appellant, v. Charles A. RILEY, Respondent.
    No. 30156.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.

      R. T. Brewster, Kansas City, for appellant.
    Gene P. Graham, Independence, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

This is an equity action in trespass. The relief prayed for was an injunction. This direct appeal is from the trial court judgment.

Review of this cause is made pursuant to Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); Mitchell v. Atherton, 563 S.W.2d 13 (Mo. banc 1978); State ex rel. Sageser v. Ledbetter, 559 S.W.2d 230 (Mo.App.1977); Farm Bureau Mut. Ins. Co. v. Broadie, 558 S.W.2d 751 (Mo.App.1977) and Rule 73.01.

Two points are presented on this appeal, both alleging error by the trial court for entry of judgment against appellant upon the sole contention that the judgment is against the weight of the evidence. Both points are taken up together as they allege the same error.

Appellant, under its petition, alleged certain specific acts of negligence by respondent, notice to desist from such acts, notice to respondent that he was prohibited from using appellant’s airport facilities and respondent’s repeated use of those facilities after the notice of prohibition, the latter of which allegedly gave rise to trespass by respondent.

The petition sought an injunction against respondent in restraint of the use of appellant’s airport in the future.

The pertinent facts are summarized below.

Appellant is a private corporation duly authorized to operate an airport within Jackson County. The corporation has a board of directors and officers authorized by the stockholders to conduct the business of the corporation. The airport consists of two runways, hangars, directional equipment and a communications system referred to as a Unicon. The airport does not contain a flight or control tower facility. An airport which does not contain this kind of facility is known as an uncontrolled airport.

Since this case is reviewed under Rule 73.01, the facts in issue must be reiterated herein. A summary of appellant’s evidence is presented, followed by a summary of respondent’s evidence.

APPELLANT’S EVIDENCE

Appellant called five witnesses to testify relative to the allegations of appellant.

The first witness, Leonard J. Specht, testified to specific alleged negligent acts by respondent. Mr. Specht testified that on July 17, 1976, at about 5:00 p. m., respondent “made a low pass” (100-150 feet) above the active runway and “laid smoke” on the runway over and in the pathway of other aircraft then on the runway. The other aircraft were in a “rolling motion” on the runway. The record shows this date was a day of a Chapter 91 Experimental Show, commonly referred to as a “fly in”.

Witness Specht further testified that in January of 1977, while operating a grader to remove snow from the runway, he (Specht) saw the respondent, Mr. Riley, (who did not attempt to get Specht’s attention) land his employer’s aircraft in such a manner as to cause a hazard to the grader and the aircraft flown by respondent. Mr. Specht further testified that on July 10, 1977, the respondent taxied his aircraft in such a manner as to blow sand, rock and dust into hangars in the area. He stated that respondent made a takeoff some 100-150 feet from a runway intersection. A takeoff at the intersection was prohibited by airport rules. The evidence was in conflict as to whether the rules on this matter and others were ever posted or otherwise made known to airport users. Mr. Specht further stated that respondent tested the engine of his aircraft, a practice commonly referred to as a “run up” of the engine, in such a manner as to cause “prop wash”. This is where the wind from the propeller flows across an active runway. The evidence on this point showed that during such operation, no aircraft made any takeoff or landing from or off of the runway where the “prop wash” was passing over. There was conflicting testimony as to how far respondent’s plane was from the actual runway, what the acceptable practice of run up was and what the effective distance of the “prop wash” was regarding potential dangers or possible damage to any aircraft which might have crossed the “prop wash” while using the runway.

Appellant called witness William Bradford, (a stockholder of appellant corporation) who was at the trial. He testified that on one occasion, he was in the process of landing a Tri Pacer Piper Club aircraft when a twin engine Cessna 310 crossed in front of his aircraft. This caused Mr. Bradford to divert the direction of his aircraft and he ended up in a grassy area off the runway. The evidence showed the Cessna to be on a final landing approach and further, the Tri Pacer did not have its radio on during this occurrence.

Appellant called as a witness Dewey Ballard. The record shows Mr. Ballard to be an expert on aircraft configuration and on flying procedures. His testimony consisted of proper aircraft approach and landing procedures, safety procedures and response to hypothetical questions on these points.

Witness Harold Herman was called by appellant. Mr. Herman testified having seen respondent’s private aircraft (a modified North American SNJ-5 and also referred to as a T/6) make a low pass in June or July, 1976 and that the aircraft laid smoke on the runway. His testimony was that the aircraft was some 8 to 10 feet off the runway and there were other aircraft in a “rolling motion” on the runway.

Appellant also called Joe Brant as a witness and the record shows this witness was an expert on propeller-type aircraft, including the type of aircraft owned (SNJ-5 or T/6) by respondent and the aircraft operated by respondent for his employer (Cessna 310). Witness Brant was asked and did testify as to “prop wash” or propeller blast and the procedure for a “run up” of an aircraft engine. His testimony further consisted of the proper approach procedures into an uncontrolled airport.

RESPONDENT’S EVIDENCE

Respondent called as his first witness John Hamilton. This witness operated a flying school at the airport. He testified that it was a common occurrence for pilots to taxi in and out of hangars and this was really a matter of individual pilot conduct. It was this witness who, the morning of the “grader incident” testified that he talked with respondent about 1½ hours before the incident by telephone. Respondent called from Peoria, Illinois and asked this witness about the weather at appellant’s airport. Mr. Hamilton testified he alerted respondent to the fact that the grader was clearing snow from the runway. He testified he observed respondent approach the airport, make a proper pattern, (attempting to get the attention of the grader operator) and then make his final landing. He stated he had never heard any complaints from other pilots about respondent’s flying. He said that at 100 feet there would be no damage from “prop wash” from an SNJ-5 or T/6 aircraft. He also testified that during “fly in” events, a lot of pilots make low passes and some drop smoke. He concluded by testifying respondent was one of the safest pilots making use of appellant’s airport.

Respondent then called Roger Lane, who testified he knew of no posted rules at the airport and that he, along with others, had been criticized by the airport management for taking off at the runway intersection.

Witness Mike Powis was called. He testified he was very familiar with the aircraft owned by respondent. He stated the aircraft had, from the pilot’s location, an unobstructed 360° visibility.

There had been, in appellant’s evidence, the alleged failure to use drip pans for aircraft in the hangars. Witness Powis stated he had been in most of the hangars in appellant’s airport and at those times did not observe drip pans. Mr. Powis further testified he had never observed any posted rules on engine “run up” and had never observed respondent or anyone else creating a hazard to other aircraft, although respondent and others (including Mr. Powis) had “run up” engines in such location that “prop wash” extended onto the active runway. He also testified there were no posted rules on the running of engines in hangars, but that he had seen others running engines in hangars. Mr. Powis had never observed respondent lay any smoke which came down onto the runway.

Respondent then called witness Walter Prey. Mr. Frey, at this time, was on the Board of Directors of appellant corporation. He testified the corporation did not authorize Mr. Specht to proceed with this action against respondent. The corporate by-laws and minute records of appellant corporation were introduced into evidence, however, and they reflect the authorization of a $38.00 expenditure as the filing fee for the commencement of this action. Mr. Frey further testified he attended “nearly every board meeting” and on one such occasion, he entered a motion to prevent the filing of this suit. However, such motion failed.

Respondent’s evidence concluded with testimony of the respondent. He testified he operated a twin engine Cessna 310 for his employer and owned a SNJ-5 or T/6 aircraft, both of which he flew in and out of appellant’s airport. He further testified the trouble between him and appellant appeared to start after he took up rental of another hangar. He had previously been renting a hangar from witness Specht. Apparently, there is or was, at this time, other litigation pending between the parties. The record is not clear as to the details of this litigation.

Respondent testified that on the day of the “fly in” he did make passes over the runway, but that other aircraft did the same thing. He further testified that his private aircraft, the SNJ-5 or T/6, was equipped with a smoke device which had been installed and its operation had been approved by authorities from the F.A.A. He also testified that at no time did he release any smoke while any other aircraft was on the runway. He said he knew of no posted or formal rules regarding the taxi of aircraft into and out of hangars and that others had done so at appellant’s airport.

As to the occurrence of the “run up”, he testified his aircraft has a 360° visibility from the pilots location and that he maintained a constant lookout for other aircraft during this operation. He stated at no time did any other aircraft make use of the runway.

As regards the grader incident, respondent testified he called from Peoria, Illinois and talked with witness Hamilton about the weather. Mr. Hamilton advised respondent of the grader activity. Respondent testified he approached the airport and made the proper approach pattern for purposes of alerting the grader operator or in getting his attention. He then made his landing and in his opinion, did not come into such close proximity of the grader as to create any hazard.

Respondent then testified that he and witness Specht had a confrontation over this landing and respondent asked Specht repeatedly what type approach he should have made on landing with the grader in operation. Respondent testified that Specht’s explanation of landing procedures under such conditions were exactly what respondent did at the time. According to respondent, Specht accused him of making a “straight in” landing. Upon the confrontation, respondent told Specht he did not make a “straight in” landing but that he followed the procedure authorized by Specht. Upon this assertion, Specht shrugged his shoulders and walked away.

Regarding the alleged incident involving the aircraft operated by Mr. Bradford, respondent stated his landing approach was in conformance with P.A.A. regulations regarding landing approach.

Thus, at the close of the evidence and upon entry of judgment for respondent, the court made findings of fact. The court concluded appellant was a duly organized corporation and that Leonard J. Specht was the General Manager of the airport and was a person authorized to institute the instant proceedings. The court further found the by-laws of appellant corporation authorized the stockholders to rent hangar space to whomever they desired without prior permission or approval by the corporation. The court found that at all times respondent was entitled to the lawful use of appellant’s airport and its facilities. The court also found the evidence and proper inferences therefrom failed to establish respondent operated his aircraft in a negligent manner by making a low pass over the runway on July 17, 1977; and that the evidence did not establish respondent operated his aircraft in a negligent manner in January, 1977 relative to the clearing of snow from appellant’s runway by grader equipment. The court further concluded the evidence did not establish respondent was negligent in the operation and taxi of his aircraft in relation to the airport hangars, that respondent was not negligent in his failure to use a drip pan under his aircraft while in the hangar; that the respondent was not negligent concerning the incident involving the aircraft operated by Mr. Bradford (Tri Pacer Piper Club), rather, the situation was a combination of events including the status of appellant’s airport as an uncontrolled airport and the fact that Mr. Bradford did not have his radio on at the time.

The court concluded, by declaring there was no evidence to show there were properly enacted and published rules of the airport at the time of the alleged incidents and the apparent rules relied upon by users, including respondent, were those promulgated by the F.A.A.

It is to be noted there was no evidence in the record that anyone made any complaint or alleged any flying irregularity by respondent to the Federal Aviation Administration or any other official regulatory body.

Upon consideration of the record, and as must be done in giving due deference to the trial court in its position to listen to and observe the demeanor of the witnesses, this court finds the record herein contains substantial evidence to support the judgment; that said judgment is not against the weight of the evidence and that the trial court did not erroneously declare or erroneously apply the law to the facts. Hence, under the rules of Murphy v. Carrón, supra, Mitchell v. Atherton, supra, State ex rel. Sageser v. Ledbetter, supra, Farm Bureau Mutual Ins. Co. v. Broadie, supra and Rule 73.01, the judgment herein is in all respects affirmed.

All concur.

      . Rolling motion is a phrase used on the record to indicate aircraft on the ground but moving on the runway for purposes of takeoff from the runway.

      . The record shows that when a “fly in” is in progress, the airport is closed to regular air traffic.

      . The record shows the Cessna aircraft to be owned by the Bratten Corporation. The chief pilot is the respondent.

      .As previously defined, “run up” indicates a procedure where an aircraft engine is tested prior to takeoff. In the record, the “run ups” were made to test the magneto performance on the aircraft operated by respondent.

      . It appeared from respondent’s evidence the grader in question was off the runway but appellant’s evidence placed the grader and the aircraft within 30-35 feet distance of each other.


author: NORWIN D. HOUSER, Senior Judge.

text:
    MANCHESTER INSURANCE AND INDEMNITY COMPANY, Plaintiff-Appellant, v. Norman L. RING, Defendant-Respondent, United States Fidelity and Guaranty Company, Defendant-Appellant, Van Chevrolet Company, Inc., Defendant-Appellant, Royal Indemnity Company, Defendant-Respondent, Ryder Truck Rental, Inc., Defendant-Respondent, Gerald Britton and Carol Britton, Defendants-Respondents.
    No. KCD 30201.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.

      C. Thomas Carr, Sheridan, Sanders & Simpson, P.C., Kansas City, for appellant Manchester Ins. & Indem.
    Clyde G. Meise, Robert 0. Jester, Meise, Cope & Coen, Kansas City, for appellants United States Fidelity & Guaranty Co. and Van Chevrolet Co., Inc.
    Harold J. Maddox, Kansas City, for respondent Royal Indemnity Co.
    Steven B. McMillin, Jr., Kansas City, for respondent Ryder Truck Co.
    Robert L. Wehrman, Kansas City, for respondents Gerald Britton and Carol Britton.
    Norman L. Ring, pro se.
    Before WASSERSTROM, C. J., Presiding, WELBORN, Special Judge, and HOUSER, Senior Judge.
   NORWIN D. HOUSER, Senior Judge.

This is a court-tried declaratory judgment action. The issue is whether either (or both) of two liability insurance carriers is obligated to defend lawsuits filed against Norman L. Ring, arising out of collisions between a 1970 Pontiac automobile Ring was driving in Jackson County on July 15, 1971, and two tractor-trailer units, and to pay any judgment or judgments obtained against him. Several pending actions filed by the insurers, owners and drivers of the tractor-trailer units are being held in abeyance, awaiting the outcome of this declaratory judgment action.

The trial court decided that both the policy of automobile liability insurance issued by Manchester Insurance & Indemnity Company (hereinafter “Manchester”) to Norman L. Ring, and the policy issued by United States Fidelity & Guaranty Company (hereinafter “USF&G”) to Van Chevrolet Co., Inc. (hereinafter “Van Chevrolet”), provide personal injury and property damage insurance coverage to Norman L. Ring, protecting him against these claims and lawsuits; that the USF&G policy provides primary coverage and the Manchester policy provides excess coverage. USF&G and Manchester have appealed.

On this review we determine whether there is substantial evidence to support the judgment and whether the judgment is against the overwhelming weight of the evidence. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

On July 15,1971 Ring was sole owner and operator of N & R Motors, 3610 East 31st Street, Kansas City, Missouri, an auto business, in the course of which he bought, repaired and wholesaled automobiles, one at a time, operating under an occupational license issued by the city, using dealer’s tags, obtained from the State of Missouri, and a license issued by the state authorizing the operation of N & R Motors as a used car business. Ring had no cars on his lot, and did no retail business. He wholesaled cars from one dealer to another. He was what is known in the trade as a “used car jockey.”

Van Chevrolet held for sale a 1970 Pontiac, originally titled in Tennessee. Van Chevrolet applied for a Kansas certificate of title, as required by law, which Kansas authorities issued and mailed to Van Chevrolet. The Kansas certificate of title was received by Van Chevrolet on July 14. Four days before that date, and on July 10, Norman Ring, desiring to purchase the Pontiac for resale as an operation of the automobile sales agency of N & R Motors, negotiated with salesmen at Van Chevrolet, and a price of $2,300 was agreed upon. On the same day, July 10, Van Chevrolet delivered the Pontiac to Ring, with no limitation upon Ring’s use of the car. The order form and invoice show a sale made to N & R Motors. (Inconsistently, Ring testified that Van Chevrolet was to transfer the title to National Sales). In payment Ring gave Van Chevrolet a sight draft for $2,300, drawn upon Bannister Bank, signed by “National Sales, by Norman Ring.” Ring had an agreement with Frank McDonald, owner of National Sales, whereby Ring could use McDonald’s credit if Ring had occasion to buy an expensive, late model automobile costing more than Ring had to spend, in which case Ring would pay McDonald “a per cent” of what Ring made on the sale of the car.

Van Chevrolet not yet having received the newly issued Kansas certificate of title on July 10, no certificate of title passed between buyer and seller, with an assignment thereof, on the day the car was delivered to the buyer. Nor did the parties on that day, July 10, agree that the assigned certificate of title should pass between them later, but within five days. Nor did Van Chevrolet mail the assigned certificate of title to Ring by registered or restricted mail within five days after July 10. Ring did not get a receipt for $2,300. No bill of sale was given him. There was no written agreement between the parties. Nothing was signed except the sight draft. Upon receipt by mail of the Kansas certificate of title on July 14 Van Chevrolet assigned the title “to Mr. Ring or one of his automobile companies” but did not mail it to Ring. Instead, Van Chevrolet hand-delivered the assigned certificate of title to Southgate State Bank, depository for Van Chevrolet, “for the draft to clear through normal banking channels.” The accident occurred the next day, July 15. After the accident Ring stopped payment on the draft. Thereafter Ring issued a new draft, which cleared July 30. Approximately two weeks after the accident Ring received a certificate of title to the Pontiac, issued in the name of N & R Motors.

The accident happened about midnight or 1:00 o’clock in the morning. At the time of the accident the automobile bore Missouri dealer’s license plate No. D3-124A, 1971, registered in the name of N & R Motors, 3610 East 31st Street, Kansas City, Missouri. Immediately prior to the accident Ring had been at the Crackemeck Country Club, at the junction of 40 Highway and 71 Bypass, for perhaps three hours, drinking beer. Ring did not remember where he had been before going to the country club; how many beers he had or whether he had supper that night. He was not “with someone” —did not “associate with anyone while (he was) there, in particular.” When he left the country club Ring drove north to Interstate 70, turned onto 1-70 and drove east to the point of accident. He was rendered unconscious; woke up in a hospital, had no recollection of a collision. After three hours in the hospital he underwent a breathometer or alcohol-meter test, the reading of which showed “over what it was supposed to be.” Ring admitted that he was “slightly” under the influence of liquor when he left the country club. At the time of the collisions Ring was going home. He lived in Odessa, Missouri. Asked where he had been with the Pontiac and what he was doing with it and using it for during the 24 hours prior to the time of the collisions, Ring answered, “I had driven said car to Kansas City in general line of business.”

At the time of the accident the following policies of insurance were in force and effect:

(1) A policy issued by USF&G to Van Chevrolet extending coverage under an omnibus clause to any person while using, with the permission of the named insured, any automobile to which the insurance applies under the automobile hazard, if the operation is within the scope of such permission. The policy contained exclusions denying coverage to (a) “any person * * * with respect to any automobile * * * possession of which has been transferred to another by the Named Insured pursuant to an agreement of sale,” and (b) persons “employed in or otherwise engaged in duties in connection with an automobile business, other than an automobile business operated by the Named Insured.”

(2) A policy issued by Manchester to Norman L. Ring on his personal car, a Chevrolet Corvair Monza automobile, providing coverage for the use of “other automobiles”, with an exclusion making the coverage inapplicable “to any accident arising out of the operation of an automobile sales agency, repair shop, service station, storage garage or public parking place.”

The negotiations between Van Chevrolet Company salesmen and Ring having taken place on the business premises of Van Chevrolet in Mission, Kansas, the case is to be decided on the basis of the applicable statutes and case law of the State of Kansas, under the principle of lex locali contractus. Gibson v. Connecticut Fire Ins. Co., 77 F. 561 (8th Cir. 1896); Western Fire Ins. Co. v. Hawkeye-Security Ins. Co., 213 F.Supp. 744 (W.D.Mo.1962).

Kansas Statutes Annotated, 1970 Supp. 8-135(c)(6), as amended by H.B. 1515, effective July 1, 1971, provided in relevant part as follows:

“It shall be unlawful for any person to buy or sell in this state any vehicle required to be registered hereunder, unless, at the time of delivery thereof or at a time agreed upon by the parties, not to exceed five (5) days after the time of delivery, there shall pass between the parties such certificate of title with an assignment thereof, as herein provided, and the sale of any vehicle required to be registered under the laws of this state, without the assignment of such certificate of title, shall be fraudulent and void, unless the parties shall agree that the certificate of title with an assignment thereof shall pass between them at a time other than the time of delivery, but within five (5) days thereof: Provided, That such certificate of title is in the possession of the seller at the time of delivery of said vehicle and the agreement of the parties shall be executed on a form and in the manner prescribed by the department. The requirements of this paragraph concerning delivery of an assigned title shall be satisfied if the seller shall mail to the purchaser by registered or restricted mail the assigned certificate of title within said five (5) days.”

With respect to the appeal of USF&G:

This appellant’s first contention is that there was a sale to Norman L. Ring, or a transfer of possession to him “pursuant to an agreement of sale,” so as to exclude him from coverage under (l)(a), the first exclusionary provision above set forth. We have concluded that there was no such sale; that the agreement of sale was void; that the seller retained title to the Pontiac; and that the exclusionary provision has no application because of the invalidity of the agreement of sale. We reach these conclusions on the basis of the following analysis:

The statute required that an assigned certificate of title pass between buyer and seller at time of delivery of the vehicle, or at an agreed time not more than five days after delivery, or by registered or restricted mail within said five days; otherwise the sale of the vehicle was declared fraudulent and void. No assignment of a certificate of title passed between the parties at time of delivery. There was no agreement that the assigned certificate be provided within five days. The assigned certificate was not mailed to the buyer within said five days. On the fourth day after the sale Van Chevrolet first received the newly issued certificate of title. On the same day Van Chevrolet assigned the certificate of title and hand delivered it to the seller’s depository bank, attached to the sight draft, for clearance through bank channels. USF&G contends that Van Chevrolet thereby complied with the intent of the statute; that possession of the vehicle was transferred to Ring pursuant to a negotiated agreement of sale, for a price to be paid by tender of a draft requiring that the assigned certificate of title be attached to the draft in order for it to be honored; that nothing remained to be “finalized” except satisfaction of the draft and acceptance of the assigned certificate of title; that the transaction was indicative of a sale and therefore the policy exclusion, based upon an agreement of sale, was fully operable.

Although the seller did all it could under the circumstances to effect the sale, the method agreed upon by the parties (attaching the assigned certificate of title to a sight draft, and forwarding same to a bank for collection) did not conform to procedure prescribed by the statute. Kansas courts have “ * * * repeatedly stated that the provisions of 8-135(c)(6) mean exactly what they say, and that they are to be literally interpreted, and strictly enforced, and that failure to comply with its provisions renders the sale of a vehicle required to be registered under the Act fraudulent and void.” Wilcox Trailer Sales, Inc. v. Miller, 200 Kan. 315, 436 P.2d 860, 865 (1968) (citations omitted); Green v. DeVoe Sales, Inc., 206 Kan. 238, 477 P.2d 944, 949 (1970) (citing Wil cox ). The requirement that a certificate of title pass between the parties at the time of delivery of the vehicle is mandatory under Kansas law. Gurley v. Broadway Sales Co., 184 Kan. 179, 334 P.2d 312 (1959). In a police regulation of this type “ * * * absolute technical compliance is necessary. Such provisions are rigidly enforced and there are no exceptions to conform to intentions.” Allstate Ins. Co. v. Hartford Accident & Indem. Co., 311 S.W.2d 41, 46 (Mo.App.1958). Failure to comply with the stat ute renders the sale of an automobile fraudulent and void. Maryland Cas. Co. v. American Family Ins. Group, 199 Kan. 373, 429 P.2d 931 (1967). The agreement of sale entered into between Van Chevrolet and Ring was voided by the statute as a matter of law. Because of the parties’ failure to comply with the statute, title did not pass to the buyer; Ring did not become owner of the vehicle; Van Chevrolet remained the owner; and the sale had not been consummated at the time of the collisions on July 15. This was conceded by counsel for USF&G in the colloquy between the court and counsel in open court prior to the trial of this case, by way of a judicial admission that under the law of Kansas in force at that time the sale must be consummated within the five day period, regardless of the acts or intentions of the parties, and that the law of Kansas does not support the conclusion that the sale was consummated on July 10 or within the five day period. This concession found its way into the stipulation of facts, which in paragraph 5 recites:

“At said time (July 10, 1971) defendant Van Chevrolet, Inc. did not have in its possession the certificate of title to said automobile, and did not mail or deliver to defendant Norman L. Ring, or any agent of his, an assigned certificate of title within five days, as required by the laws of Kansas, nor did it mail or deliver an assigned certificate of title to him or any agent of his by the time or date of the aforesaid accident, and the title and ownership of said automobile remained in defendant Van Chevrolet Co., Inc. at the time and date of said accident.” (Parenthesis and emphasis supplied).

The exclusionary provision in question, based upon the existence of an agreement of sale, contemplates and requires that there be a valid and subsisting agreement of sale, and has no application where possession of a vehicle has been transferred to another pursuant to a void agreement of sale. See also Greer v. Zurich Ins. Co., 441 S.W.2d 15, 26 (Mo.1969), in which the court said, “As a general rule, a valid and enforceable contract may not arise out of a transaction prohibited by statutory law.” And see 17 C.J.S. Contracts § 201 (1963); 17 Am.Jur.2d Contracts § 165 (1964).

USF&G is not entitled to be exonerated on the basis of its first defense.

Next, was Norman L. Ring employed in or otherwise engaged in duties in connection with an automobile business other than that of Van Chevrolet, under (l)(b), the second exclusionary provision above quoted, so as to deprive him of the benefit of the omnibus provision of the USF&G policy? We have concluded that he was, under the undisputed evidence, on this basis:

The exclusionary provision of the Comprehensive General Automobile Liability endorsement read as follows:

“None of the following is an insured: (v) any person while employed in or otherwise engaged in duties in connection with an automobile business, other than an automobile business operated by the Named Insured.”

This provision eliminates as insureds all persons of a class, namely, persons employed in an automobile business and persons engaged in duties in connection with an automobile business (other than that of Van Chevrolet).

The term “employed in” is not used in the sense of an employee standing in an employer-employee relationship, but is used in the occupational sense — viz., the occupation in which one is employed. We see no escape from the conclusion, under the only evidence on the issue, that at the time of the accident on July 15 Ring was a member of the class of persons employed in an automobile business.

Furthermore, at the time of the accident Ring was a person engaged in duties in connection with an automobile business, namely, the business of N & R Motors. Ring had driven the Pontiac from his home in Odessa to Kansas City that day in the general line of his business, which was located in Kansas City. Five days previously he had purchased the Pontiac for the purpose of resale. The only reasonable inference from the evidence is that in driving the Pontiac from his home in Odessa to Kansas City, bearing N & R Motors license plate, Ring was on a trip to promote the business of the sales agency. There is no other evidence on the issue. He was taking the car to the market where a buyer might be found. Not having been successful in selling the Pontiac on July 15, Ring’s return trip to his home, on Interstate 70, the customary and most direct route, was an integral part of the business trip to Kansas City. Analogous are the rules involving the liability of an owner for acts of his servant or agent in the operation of his motor vehicle. Where at the time of an accident the servant or agent deviates or departs from the usual or most direct route which he would ordinarily follow in using the car on the owner’s business, and goes off on some errand or for some purpose wholly his own, the owner is not liable for injuries inflicted by the servant or agent. But if at time of accident the servant or agent has resumed the owner’s business and has returned to the point of departure or to a point where in the performance of his duties he is required to be, and actually returns to his master’s business, the owner may be liable. 60 A C.J.S. Motor Vehicles § 437(4) (1969); 6 Blashfield, Automobile Law and Practice § 253.81 (3rd ed. 1966); Ruff v. Farley Machine Works Co., 151 Kan. 349, 99 P.2d 789, 793-94 (1940); Beem v. H. D. Lee Mercantile Co., 337 Mo. 114, 85 S.W.2d 441 (1935); Cable v. Johnson, 63 S.W.2d 433 (Mo.App.1933). Ring’s visit to the country club on the way home constituted a deviation from the regular route home, but the accident did not occur on the deviate route. The accident occurred on Interstate 70, after Ring had returned to the point of departure and resumed his trip home on the regular and most direct route from his business in Kansas City to his home in Odessa. When Ring returned to and was traversing that segment of the route home Ring was engaged in duties and activity in connection with his automobile business, within the meaning of the policy provision, under accepted principles.

There is no evidence, substantial or insubstantial, in support of the ruling that the collisions did not occur while Ring was employed in or otherwise engaged in duties in connection with an automobile business. The ruling is against the overwhelming weight of the evidence.

With respect to the appeal of Manchester:

Manchester contends that its policy provision extending coverage to Ring in the use of “other automobiles” is subject to the specific exclusion contained in paragraph V(d)(2), which reads:

“This insuring agreement does not apply to any accident arising out of the operation of an automobile sales agency * * .”

Under the facts above recited in connection with the second exclusionary provision of the USF&G policy, it follows that the accident arose out of the operation of N & R Motor Sales, an automobile sales agency. The trial court’s ruling that the collisions did not arise out of the operation of an automobile sales agency within its meaning of the quoted exclusion is not supported by substantial evidence and is against the overwhelming weight of the evidence.

The judgment is reversed. Cause remanded with directions to enter a new judgment declaring the rights of the parties in form and manner consistent with the rulings of this opinion.

All concur.


author: KENNEDY, Judge.

text:
    STATE ex rel. FIRST NATIONAL BANK OF LINN CREEK, CAMDENTON, Missouri, a Banking Corporation, Relator-Respondent, v. STATE BANKING BOARD of the State of Missouri and the Members thereof, William J. Bollwerk, William F. Enright, Jr., Daniel J. McAuliff, L. W. Meier, Jr., and Don W. Redding, Respondents, and Citizens Bank of Climax Springs, Climax Springs, Missouri, a Banking Corporation, Intervenor-Appellant.
    No. KCD 30440.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.

      Carl E. Yates and Ronald L. Holmes, Springfield, for intervenor-appellant.
    Forrest P. Carson, Cullen Coil, Jefferson City, for relator-respondent.
    Irven L. Friedhoff, Jefferson City, for respondents.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   KENNEDY, Judge.

The Circuit Court of Cole County, Missouri, issued a peremptory writ of mandamus which required the State Banking Board of Missouri to accept jurisdiction of an appeal by relator First National Bank of Linn Creek from a decision by the Director of Finance under § 362.108, RSMo 1978. The challenged decision had authorized the Citizens Bank of Climax Springs to maintain and operate a separate facility in Green-view, located at the junction of.Highways 5 and 7 in Camden County, Missouri. The State Banking Board on August 15, 1977, had dismissed the Linn Creek bank’s appeal on the ground that it had no jurisdiction to review decisions by the Director of Finance made pursuant to § 362.108.

The intervenor Climax Springs bank has appealed the court’s judgment issuing the peremptory writ. The State Banking Board has not appealed.

The chronology of the case in the trial court is as follows: After the decision of the Director of Finance, and after the rejection by the State Banking Board of the Linn Creek bank’s appeal therefrom, the Linn Creek bank on August 17, 1977, filed in the Circuit Court of Cole County its petition for review under Rules 100.04 to 100.08. The Climax Springs bank on September 13 filed a motion to dismiss that case on several grounds, including lack of jurisdiction over the subject matter. Nothing further occurred in that case of any present significance until February 2, 1978, when the petition for review was voluntarily dismissed by the Linn Creek bank.

In the meantime, on September 27, 1977, the Linn Creek bank had filed this mandamus case against the State Banking Board, and the alternative writ of mandamus was issued. The writ was returnable October 17,1977, and the State Banking Board actually filed its return on October 21, 1977. The Climax Springs bank did not formally enter the case until April 3, 1978, when it filed its motion to intervene as a respondent, and at the same time filed its “Motion to quash alternative writ of mandamus”. The motion to intervene was sustained by the court on June 19. On June 19, also, the intervenor’s motion to quash the alternative writ of mandamus was overruled, and the case was set for trial June 27, 1979.

On April 20, relator Linn Creek bank had filed its answer to the return of respondent Banking Board. On May 1, intervenor Climax Springs bank filed a return to the alternative writ of mandamus by adopting the State Banking Board’s return. On May 5, the relator Linn Creek bank filed its answer to intervenor’s return by adopting the answer which it had made to the State Banking Board’s return.

The case was tried June 27, 1979, resulting in the judgment being appealed from.

The Climax Springs bank on this appeal argues, first, that the Banking Board has no jurisdiction to review the decisions of the Director of Finance authorizing banking facilities pursuant to § 362.108, and that the trial court therefore erred in issuing its peremptory writ of mandamus requiring the State Banking Board to entertain such appeal.

The substantive issue has been settled, adversely to the appellant, by Farmer’s Bank of Antonia v. Kostman et al., 577 S.W.2d 915, 921 et seq. (Mo.App.1979). There it is held that the action of the Director of Finance in granting authority for a facility such as the one now under consideration, is subject to review by the State Banking Board. The trial court correctly so found.

The Climax Springs bank, however, raises another point which it claims defeats the Linn Creek bank’s entitlement to the writ of mandamus. It claims that the alternative writ of mandamus should have been quashed upon motion of intervenor Climax Springs bank because the relator Linn Creek bank was tardy in filing its answer to the Banking Board’s return. The Board’s return was filed October 21, 1977, and the relator’s answer was filed April 20, 1978, an interval of 181 days.

There is no statute or court rule which fixes a time within which a relator’s response to the return is to be filed. Supreme Court rule 94.09 says that the court may allow such “convenient time . as to the court shall seem just and reasonable”. In the present case, no order was made or requested by any party delimiting the time for filing the responsive pleading. Appellant Climax Springs bank acknowledges that the time to be allowed for making answer to the return is discretionary with the trial court. State ex rel. Duggan v. Kirkwood, 356 Mo. 842, 204 S.W.2d 307, 309-310 (banc 1947); State ex rel. Stueve v. Reynolds, 266 Mo. 12, 178 S.W. 468, 471 (1915); Rule 94.09. It says, however, that in this case, the receipt of the relator’s answer to the Banking Board’s return after 181 days was an improper exercise of that discretion. It points to two factors which it claims makes the answer untimely.

The first such factor is that the Linn Creek bank, at the time of filing its application for a writ of mandamus, had pending in the same court a petition for review of the action of the Director of Finance under the judicial review provisions of Rules 100.-04 to 100.08. The two cases proceeded on a parallel course from the filing of the mandamus case September 27, 1977, till the petition for review was dismissed February 2, 1978.

Intervenor cites us to the case of State ex rel. Wahl v. Speer, 284 Mo. 45, 223 S.W. 655, 657-9 (banc 1920), which says that a writ of mandamus, being an extraordinary remedy and a discretionary writ, ought to be withheld if there is pending a prior suit between the parties in which adequate relief can be obtained. Whether in the case before us the petition for review promised an adequate remedy is a question we do not need to reach, for that proceeding was dismissed February 2, 1978, leaving a clear field to the mandamus case. Thus the record stood when the Climax Springs bank filed its motion to intervene on April 3.

As a second factor bearing upon the court’s discretion in allowing the filing of the answer, and upon his denial of the motion to quash the alternative writ, the Climax Springs bank says in its brief that it was proceeding — in compliance with the Director’s certificate of authority — with the construction of permanent quarters for the facility at Greenview, in order to complete the same by July 18,1978, the date fixed by the Director’s certificate of authority for commencing business in permanent quarters, and with the contribution of an additional $50,000 capital, another requirement of the Director. These statements in inter-venor-appellant’s brief are not supported by the record, for the record does not tell us that the Climax Springs bank was proceeding with the construction of permanent quarters as this mandamus case was pending, or that the additional $50,000 had been contributed to the Climax Springs bank capital. The record does not show whether the Climax Springs bank had applied to the Director of Finance for an extension of the time when business should be commenced in permanent quarters. We take it that the times set in the Director’s original certificate for meeting his requirements and commencing business were not immutably fixed, but could be extended by him upon good cause shown.

The record does not show that intervenor Climax Springs bank sought at any time to hasten the trial of the case, or that it sought any court order delimiting the time for relator’s answer. In view of our disposition of the case, we do not need to decide whether in any case a responsive pleading could be held untimely without such an order. Intervenor does not contend here that the trial or its disposition was in any way delayed by relator’s failure to file its answer earlier. It has shown no prejudice to itself by the time lapse between the Banking Board’s return and relator’s answer thereto.

We conclude that neither of the factors emphasized by the intervenor Climax Springs bank foreclosed the court’s receiving the relator’s answer, or required the court to sustain the Climax Springs bank’s motion to quash the alternative writ because of the lapse of time from return to answer.

We find therefore that the trial court was correct in overruling appellant-intervenor’s motion to quash the alternative writ. Having already found as a substantive matter that the State Banking Board is required to entertain relator’s appeal from the adverse (to it) decision granting to the Climax Springs bank authority to maintain and operate a separate banking facility at Green-view, we affirm the judgment of the circuit court in issuing its peremptory writ to that purpose.

All concur.


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Larry J. MERRITT, Appellant.
    No. KCD 30420.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.

      Clifford A. Cohen, Public Defender, Gary L. Gardner, Kevin R. Locke, Asst. Public Defenders, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Hope E. Thurrott, Sp. Asst. Atty. Gen., Kansas City, for respondent. «
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Larry J. Merritt was convicted by a jury of carrying a concealed weapon, § 564.610, RSMo 1969, and sentenced by the court under the Second Offender Act to imprisonment for four years.

On this appeal Merritt raises the decisive issue of the failure of the court to discharge a venireman for cause. Reversed and remanded.

Merritt does not dispute the sufficiency of the evidence so a recitation of facts is not necessary except to observe that Merritt was the driver of an automobile which struck another car. A police officer observed the incident and approached Merritt’s car and asked Merritt for his driver’s license. Merritt agreed to display it, but leaned over to the glove compartment and pulled out a gun.

The only claim of error necessary to be resolved concerns the failure of the trial court to excuse venireman Lockard for cause on the motion of Merritt’s counsel. The challenge for cause originated in the following questions and answers during the voir dire:

MR. ROGERS: Some other hands? Yes sir.
VENIREMAN: Going back to the question you had before about the defendant possibly not testifying,—
MR. ROGERS: Okay. You’re Mr. Lock-ard, is that correct?
VENIREMAN LOCKARD: Warren Lockard. That might possibly bias me. I don’t know.
MR. ROGERS: Okay. Let me ask it this way: If the defendant does not testify — these are hypothetical questions.
VENIREMAN LOCKARD: Yes.
MR. ROGERS: If the defendant does not testify, and if the court gives you an instruction that says that under the law the defendant has the right not to testify and no inference of guilt or no inference of any kind can be raised from the fact that the defendant does not testify, would you be able to follow that instruction without reservation?
VENIREMAN LOCKARD: I can’t say for a hundred per cent sure whether I could follow it.
MR. ROGERS: You might tend to think why wouldn’t an innocent person get up and tell his side of the story, is that it?
VENIREMAN LOCKARD: Possibly.
MR. ROGERS: Thank you, sir.
♦ * * * * *
(Counsel approached the bench and the following proceedings were had:)
MR. ROGERS: Your Honor, I would ask that Mr. Warren Lockard, No. 7, be excused for cause. He indicated he would have trouble following the Court’s instructions if the defendant did not testify.
MR. HORMEL: Your Honor, I don’t think he—
THE COURT: I’ll deny that.
MR. HORMEL: —actually committed himself.
THE COURT: He said he could follow the instruction when he was asked.
MR. ROGERS: He said he might have some trouble following it.
THE COURT: To his last question he said yes, he would follow that instruction.
MR. HORMEL: That’s the way I understood it.

Merritt contends Lockard should have been excused for cause because the examination of Lockard revealed that he might consider the failure of Merritt to testify as evidence of guilt.

The rules under which this contention of error is reviewed are well known. The trial court has a wide discretion in ruling on challenges for cause and that ruling will not be disturbed unless it is against the evidence and can be said to be a clear abuse of discretion. State v. Treadway, 558 S.W.2d 646, 649[1, 2] (Mo. banc 1977). Further, the accused “is entitled both to a qualified panel and the statutory number of peremptory challenges.” State v. Morrison, 557 S.W.2d 445, 446[1] (Mo. banc 1977).

A review of Lockard’s brief examination shows that Lockard never unequivocally denied that the failure of Merritt to testify would prejudice him. First it is noted that Lockard apparently raised the question on his own. The transcript does not contain the question asked by Merritt’s counsel concerning the failure of Merritt to testify. The transcript begins with an examination of another venireman concerning the effect another crime perpetrated on him would have on his ability to be fair and impartial. After this examination, venireman Lockard raised the question about the possibility of Merritt not testifying. It is obvious Lockard was concerned about this matter or he would not have raised the question on his own after a separate subject had been fully discussed between Merritt’s counsel and another venireman. Thus, Lockard must have been concerned about his feeling on this subject.

In response to the question about his ability to follow an instruction on a failure to testify, Lockard said he could not be one-hundred per cent sure whether he could follow it. When asked if he would wonder why an innocent person would not testify, he indicated he possibly would. These were the only questions directed to Lockard concerning his ability to follow the law and to follow the instruction of the court that Merritt’s failure to testify was not to be considered as any inference of guilt.

Neither the prosecutor nor the court asked any further questions of Lockard. On the contrary, the court unfortunately did not hear Lockard’s responses or misunderstood them because the court stated that Lockard had said he would follow the instruction. This was further compounded by the prosecutor stating that he understood Lockard to say the same.

In State v. Thompson, 541 S.W.2d 16 (Mo.App.1976) and State v. Carter, 544 S.W.2d 334 (Mo.App.1976) veniremen stated it was possible,-that certain factors would cause them tó be biased. In both cases the court stated the venireman’s answer was equivocal and such equivocal answers standing alone without further explanation or clarification indicated the venireman was not unbiased and the court abused its discretion in failing to excuse them for cause. In Carter the court stated at 544 S.W.2d 337, “[i]n the presence of equivocal answers by the prospective juror, the trial judge made no effort to question the juror to explore possible prejudice.” In Thompson the court stated at 541 S.W.2d 18[6], “[n]ot once did he unequivocally state that he could impartially hear and try the case.” The same situation obtains in this case. Not once did Lockard unequivocally state that the failure of Merritt to testify would not bias him in hearing this case. To the contrary, his answers revealed a clear doubt on his part that he could listen to the case fairly and impartially without according weight of guilt on the failure of Merritt to testify.

It is unfortunate that the court and prosecutor apparently misunderstood his answers and thus failed to ask any further questions. On the basis of the record of Lockard’s examination, the refusal to excuse him for cause was an abuse of discretion.

The State relies principally on State v. Ransburg, 540 S.W.2d 172 (Mo.App.1976). However, in Ransburg the prosecutor asked further questions which brought an unequivocal response that the venireman would not consider the failure of the accused to testify as evidence of guilt. This court stated that the only venireman who indicated the failure to testify would be an admission of guilt was stricken and that none of the remaining panel members stated they would draw any inference of guilt from the accused’s failure to take the stand. Ransburg is not applicable to the facts of this case.

The judgment is reversed and the cause is remanded.

All concur.