author: SEILER, Judge. DONNELLY, Chief Justice

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, a corporation, Plaintiff-Appellant, v. SAFECO INSURANCE COMPANY OF AMERICA, a corporation, Defendant; Cross-claimant, Cross-Defendant, Appellant, Robert Allan Alonzo, by Joseph C. Alonzo, his next friend, and Joseph C. Alonzo, Defendants, Cross-Defendants, Cross-claimants, Respondents, Deborah Norman, a minor, and Donald R. Norman, Defendants, Cross-Defendants Appellants.
    No. 58437.
    Supreme Court of Missouri, En Banc.
    April 14, 1975.
    Rehearing Denied May 12, 1975.

      George E. Lee, Doris J. Banta, St. Louis, for appellant; Carter, Bull, Baer, Pres-berg & Lee, St. Louis, of counsel.
    C. Marshall, Friedman, Gray, Friedman & Ritter, St. Louis, for respondents Alonzo.
    F. X. Cleary, J. C. Jaeckel, Moser, Mar-salek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for appellant-respondent, etc.

      David G. Dempsey, Clayton, James F. Koester, St. Louis, for respondents-appellants, Deborah Norman and Donald R. Norman.
   SEILER, Judge.

These appeals (which reach the writer on reassignment) follow a declaratory judgment action which seeks a determination of which automobile liability insurer owes what under the omnibus clause coverage in one policy and the non-owned automobile clause coverage in the other. An opinion was handed down by the court of appeals, St. Louis District. That court thereafter overruled motions for rehearing but because of the general interest and importance of the questions involved and for the purpose of reexamining the existing law relative to the issues presented, sustained the motions of the insurers to transfer the cause here. We will consider it as though the appeals were properly here in the first instance. Art. V., Sec. 10, 1945 Constitution, V.A.M.S.

There was a one-car accident in St. ’ Louis on Friday night, January 16, 1970. Roy Chapman, age 17, was driving the automobile, a 1965 Dodge Dart owned by Mrs. Dorothy Kloepper. Mrs. Kloepper was not in the car. Mrs. Kloepper’s daughter, Jane, age 17, was riding in the rear seat with Robert Alonzo, age 18. Deborah Norman, about the same age as Jane, was riding in the front seat. The four, who were high school students, friends of several years standing, were on their way to a pizza parlor. Robert Alonzo and Deborah Norman were injured and have recovered judgments for their injuries, and Alonzo’s parents have recovered for loss of services. United States Fidelity & Guaranty Company (hereinafter referred to as U.S.F. & G.) had issued its family automobile policy to Dorothy Kloepper as the named insured on the Dodge Dart automobile. Safeco Insurance Company of America (hereinafter referred to as Safeco) has issued its automobile liability policy to James A. Chapman, father of Roy Chapman, on Mr. Chapman’s automobile, a Ford. This policy provided coverage under defined circumstances for the operation of a non-owned automobile.

The initial question is whether Roy Chapman was covered under the U.S.F. & G. omnibus clause, which reads as follows:

“The following are Insureds under Part I:
(a) with respect to the owned automobile,
(1) the Named Insured and any resident of the same household.
(2) any person using such automobile with the permission of the Named Insured, providing his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission . . . ”

and under the non-owned automobile clause of the Safeco policy which reads as follows:

“The following are insureds under the Liability Section:
(b) With respect to a non-owned automobile,
(1) the named insured,
(2) any relative, but only with respect to- a private passenger automobile . provided . . . his actual operation or (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission . . . ”

There are other questions in the case, but the above must be resolved first of all.

The question of whether there is coverage under the omnibus clause has often been before our courts. Every case requires a factual determination of whether a grant of permission by the named insured to the first permittee impliedly authorizes the first permittee to allow another to operate or use the automobile, thus making the second permittee an additional insured within the terms of the policy. St. Paul Insurance Company v. Carlyle, 428 S.W.2d 753 (Mo.App.1968). This could be avoided by holding that “once the initial permission has been given by the named insured, coverage is fixed, barring theft or the like”, Odolecki v. Hartford Acc. & Indem. Co., 55 N.J. 542, 264 A.2d 38, 42 (1970), but that is not the way the insurance policy is written.

It has been suggested that the trend of the times is for people to be compensated for automobile accidents and the omnibus clause, therefore, should be broadened accordingly when a question of its coverage arises. Frequently, the existence of safety responsibility acts and uninsured motorist statutes are said to work a broadening of coverage. But the argument is not persuasive here. To begin with, there is no indication that either of the policies before us was purchased in order to comply with Secs. 303.160-180, RSMo 1969, V.A.M.S., of the Motor Vehicle Safety Responsibility Law, and furthermore, the legislature has made no requirement that in order to operate a motor vehicle in Missouri that the driver must have liability coverage. All that is required is that if a driver has an accident of a certain seriousness, then, to avoid automatic suspension of his driving license, he must either present a release or post security unless he can show the existence of an insurance policy of described limits, Sec. 303.030, RSMo 1969. And even the kind of liability insurance policy which the legislature has prescribed will be accepted as proof of financial responsibility, Sec. 303.190, subd. 2(2), RSMo 1969, has an omnibus clause which requires “express or implied permission of such named insured.” Sec. 379.203, RSMo 1969, requiring Missouri automobile liability insurance policies to include uninsured motorist coverage does not purport to change the wording of the omnibus clause or its coverage in the policies. So there is no way we can avoid the determination of whether the implied permission given by Mrs. Kloepper to Jane extended to Jane’s letting someone drive the car, within the terms of the omnibus clause as it is written in the policy before us. See also Helmkamp v. American Family Mutual Insurance Co., 407 S.W.2d 559, 572-73 (Mo.App.1966).

On the particular evening in question Jane asked to use the car and Mrs. Kloep-per said yes. It was her understanding that Jane was going bowling with Deborah. From the bowling alley, Jane and Deborah drove by Roy Chapman’s house and he went with them to a sandwich drive-in. They left the drive-in once, then returned, and Jane went inside. Chapman got behind the steering wheel. Jane came back to the car, saying she wanted to find Bob Alonzo, who was supposed to be at a party in the area. Chapman said he knew the way and Jane asked him if he would drive. From then on, Chapman was the driver. Eventually they returned to the drive-in and this time found Alonzo there. The four then started out with no particular destination, but sort of planning to go to a pizza place. Enroute, Chapman ran off the road and hit a tree.

Jane Kloepper testified she was aware Roy had consumed six cans of beer and had beer in the car. Chapman, however, denied having anything to drink. Robert Alonzo claimed to have no recollection of events of the evening prior to the accident and Deborah Norman did not testify. The police report was silent on drinking.

Mrs. Kloepper purchased the automobile in 1965. Her daughter, Jane, at that time was age 13. In due course Jane took driving lessons and obtained her license in August, 1968, a few months after her sixteenth birthday. She started using the car to go to her friends’ homes and parties. When Jane started driving Mrs. Kloepper instructed her not to let others drive the car. On one occasion she gave permission to allow two girl friends to drive when Jane’s eyes were irritated. When asked whether there was any time “you ever gave her other instructions or authority other than that”, she replied “No, sir.” Mrs. Kloepper never saw Roy Chapman drive the car, never knew that others had driven it. She admitted that Jane had a set of keys and used the car more than she did. She did not disagree with Jane’s testimony that Jane used it about 75% of the time.

Jane testified that she used the Dodge to attend parties, dances and “stuff like that.” She did not remember her mother telling her she could or should let others drive, but in a deposition given in November 1970 admitted her mother said “I shouldn’t let anyone drive” at the time she started driving and “a couple of months ago.” She did permit others to drive, however, and estimated at least six other friends had driven the vehicle. Robert Alonzo stated that Jane referred to the automobile as “her car.” He corroborated that Jane had her own set of keys and permitted others to drive. Chapman conceded he did not in fact know who owned the car, but he thought it was Jane’s, that Jane referred to it as her car. Chapman also knew that Jane let others drive the car.

Since the question is whether Chapman is within the omnibus coverage of the U. S.F. & G. policy, it must be determined whether Chapman was using the automobile “with the permission” of Mrs. Kloep-per, the named insured, with his actual operation of it being within the scope of such permission. Jane Kloepper was using the automobile (she was riding in it, which is a use of the automobile) and while she was not operating it, her actual use of the automobile at the time — going to a place to get pizza — was well within the scope of the broad permission she had from her mother to use the car in her social activities with her high school friends and classmates.

Mrs. Kloepper was not aware Chapman was driving the automobile and was barely aware of his existence. She was, however, aware that Jane had numerous friends her own age, that while Jane and she both used the automobile, most of the time it was Jane’s car; that Jane had the car on this particular evening for social purposes; and as the mother of a teenage daughter with an automobile it would be reasonable for Mrs. Kloepper to anticipate that her daughter, when in the company of boys her own age on social outings, might ask or permit the boys to do the driving.

If it is necessary that Mrs. Kloep-per have actual knowledge that Chapman was in fact driving the automobile, then, of course, the conditions of the omnibus clause would not be met, because this knowledge is lacking in the case before us. But is it essential that Mrs. Kloepper know of Chapman and that he was driving? The omnibus clause refers to “any person”, which is broad enough to include unknown persons. The person must be using the vehicle with the permission of the named insured, but certainly Mrs. Kloepper could give permission to a class of unknowns to use her car — such as, for example, anyone Jane asked to drive the car. The actual operation or driving of the car would have to be within the scope of Mrs. Kloepper’s permission, but this would be the case if the unknown were using the car for a purpose which was within the scope of the use Mrs. Kloepper authorized Jane to make. If the person driving the car were one whom Jane asked to drive and the driving was being done on the same sort of mission, objective or purpose for which she otherwise would have done the driving herself as part of her use of the car for a social evening, then it would be within the scope of the permission.

The trial court ruled that at the time of the collision Chapman was operating the Kloepper vehicle with the implied permission of Mrs. Kloepper. What evidence supports this? Jane used the automobile 75% of the time and had her own set of keys. She referred to the car as hers. Usually Jane drove it to visit friends, attend parties or go shopping. She used it for shopping for her mother. Jane permitted numerous others to drive the car. The car was there for her to use “if she had errands and things to run, yes.” It was an exceedingly loose arrangement between mother and daughter as to the car and the limitations on its use. Mrs. Kloepper obviously placed a good deal of trust in her daughter, as well as being rather indifferent as to what Jane did with the car. With Mrs. Kloepper as indulgent and complaisant as she was toward her daughter and the automobile, paying for maintenance and repairs of the car, providing most of the gasoline and oil, paying the additional premium required for coverage of a teenage driver, apparently letting Jane use the car whenever she wanted to and with no indication that she ever denied the car to her daughter, it is not a strained conclusion to draw that Jane was granted a “broad and unfettered” use or dominion over the car and, if so, this would include letting someone else drive it when Jane considered it appropriate to the use Jane was authorized to make of the automobile.

Jane was a few months past 16 when she first started driving. She was not quite 18 at the time of the accident. Mrs. Kloepper testified that when Jane first started driving her instruction was not to let anyone drive the car. In response to a question as to whether she had occasion to talk with her daughter again about it Mrs. Kloepper answered, “On one occasion we talked about it” and related the time when Jane was having trouble with a new set of contact lenses and Mrs. Kloepper said one of two particular girls could drive her home from the doctor’s office. There was no other time she gave Jane instructions as to whether she should or should not let anyone else drive the car.

With a 17 year old daughter, a parent needs to be more specific in restrictions about the automobile if the daughter is expected to act with restraint. At 16 or 17 having an automobile means a girl “has a lot going for her” and if she is the only one in the crowd with a car on a particular evening, the girl is apt to take a lot of liberties with it — fooling around, running back and forth looking for people, going to hamburger and pizza establishments, and embarking on similar expeditions. If there are to be restrictions, to be effective they must be more than vagaries, which is all Mrs. Kloepper imposed at best. The restrictions must be explicit. If not, a parent can expect a car to be used with great liberty. The accident was on a week-end night — a Friday — and although Jane said they were going bowling (and they did so), it is safe to say that neither she nor her mother expected the evening’s activities would end there.

U.S.F. & G. relies on a number of recent decisions which deny coverage under the omnibus clause to a second permittee and urges that there was no evidence to support the trial court’s finding that Mrs. Kloepper had impliedly authorized Jane to grant Roy Chapman permission to operate the automobile. Government Employees Ins. Co. v. Lammert, 483 S.W.2d 652 (Mo.App.1972); Allstate Ins. Co. v. Hartford Acc. & Indem. Co., 486 S.W.2d 38 (Mo.App.1972); St. Paul Ins. Co. v. Carlyle, supra; Helmkamp v. American Family Mut. Ins. Co., supra; M. F. A. Mut. Ins. Co. v. Alexander, 361 S.W.2d 171 (Mo.App.1962); Varble v. Stanley, 306 S.W.2d 662 (Mo.App.1957).

None of these decisions controls this proceeding. Factually, each is distinguishable from this case. In Lammert, the son who gave permission to another was required to inform the father, the insured, whenever he was going to use the automobile ; the son never used the car for social purposes and there was no “unfettered and unrestricted” control of the automobile given by the insured.

In Carlyle, the son, who had given permission to another, did not have a set of keys given to him by the insured, his father; the permission to use the auto was requested and renewed in each instance; the son did not have “free and unfettered dominion over the car.”

In Helmkamp, the son of the insured was permitted to take the car less than twice a week on the average and his parents did not “turn him loose”; he was required to tell them where he was going, park the car, and be home by eleven. Before the accident the son never gave anyone permission to drive the car.

In Alexander, the son drove the car only after obtaining specific permission on each occasion; he did not have the right to drive the car anytime he wanted to and the father was strict in limiting its use to a particular place.

In Varble, there was no evidence of permission at all.

In Allstate Ins. Co. v. Hartford Acc. & Indem. Co., supra at 46, the court stated that “ . . .it may not fairly and reasonably be inferred and found that [the first permittee] had permission, unrestricted in scope and range, to use her mother’s automobile at any and all times.” Further, in the Allstate case it is pretty clear that had it been all right for the daughter to permit her friend to drive, the daughter (who was between 21 and 22 years of age) when she called her mother from Cape Girardeau to reassure her because it was getting late, starting to rain, and the daughter still had to return from Cape Girardeau to Lilbourn, a distance of fifty miles or more, would have mentioned that there was a young man with her who would help with the driving. In addition, the testimony was that the daughter always asked her mother about taking the car and “if it was agreeable” she took the car and if she drove the car more or less than she intended to do, would always inform her mother, which indicates that her use of the car was considerably more restricted than that permitted the daughter in the present case. Finally, there was no reason for the mother to anticipate that the daughter, who left the house around 1:30 p.m. to do various personal errands, would be in a social situation where it could be foreseen, as for example with the daughter in the present case, that someone else might end up driving.

We have found only one Missouri case where coverage was extended to a second permittee: Haynes v. Linder, 323 S.W.2d 505 (Mo.App.1959). Haynes, however, is a clear cut case, because there the named insured was informed by his first permittee, Gardner, that Gardner had turned the automobile over to the second permittee, Lin-der, who was driving it and the insured said this was all right. Subsequently the second permittee was involved in an accident with the car and the court held he was covered under the omnibus clause of the named insured’s policy.

In all other Missouri cases which we have found, coverage has been denied the second permittee. These, in addition to the six cases cited by U.S.F. & G., supra, are Farm Bureau Mut. Ins. Co. v. Dryden, 492 S.W.2d 392 (Mo.App.1973); Nye v. James, 373 S.W.2d 655 (Mo.App.1963) and M. F. A. Ins. Co. v. Lawson, 336 S.W.2d 123 (Mo.App.1960). None of these cases has a factual situation similar to ours.

There is evidence Mrs. Kloepper gave her daughter instructions not to let others drive the car when the daughter first started driving, but at the time of the accident, a year and a half later, the daughter had, with the permission of her mother, broad, free and unfettered control of the vehicle to such an extent that it can be concluded, from the objective manifestations, that Mrs. Kloepper gave implied permission to Jane Kloepper to permit others to operate the vehicle when Jane was in the car and it was being used for purposes which Jane was authorized to make of it. The implied permission is found not from permission granted when Jane first started driving but from the subsequent conduct of the named insured and her daughter. However, as said in Teague v. Tate, 213 Tenn. 269, 375 S.W.2d 840, 844 (1964), we do not “ . . . intend to lay down the rule that will license the first permittee to select a second permittee who will, in all cases, become an additional insured. Each case should be considered on the facts presented.”

We therefore hold as follows on the question of whether a second permittee is covered under the usual omnibus clause such as we have here:

1. The permission must come from the named insured, not simply from the first permittee.

2. Permission of the named insured to the second permittee may be implied as well as express.

3. Permission may be proven by circumstantial evidence, but the circumstances must be such that the necessary fact may be inferred therefrom and must reasonably follow, so that the conclusion so reached is not the result of guesswork, conjecture or speculation.

4.Permission from the named insured can be found or implied from a course of conduct which evidences the willingness of the named insured to permit the first per-mittee to authorize others to drive, such as the broad and unrestricted use given by the named insured to her daughter in this case.

Thus we believe there was sufficient evidence for the trial court to reach the conclusion that there was the requisite implied permission by Dorothy Kloepper and we cannot confidently say otherwise. It follows, then, that Roy Chapman was an insured under the omnibus clause of the U. S.F. & G. policy.

Turning now to Safeco and the question of whether Roy Chapman is covered under the non-owned automobile provisions of his father’s policy, the terms of which are set out earlier herein:

In State Farm Mut. Ins. Co. v. MFA Mut. Ins. Co., 485 S.W.2d 397 (Mo. banc 1972) this court held that the term “ownership” as appearing in the “Automatic Insurance for Newly Acquired Automobiles” provisions of the standard automobile liability policy meant that for the insured to “acquire ownership” there must have been strict compliance with the requirements of Sec. 301.210, RSMo 1969. In that case, the title papers were all in order except that the written assignment of the title certificate was not notarized, so the purchaser did not “acquire ownership” of the pickup truck. In National Indem. Co. v. Liberty Mutual Ins. Co., 513 S.W.2d 461 (Mo.1974), the court relaxed the requirement of strict compliance with Sec. 301.210, supra, where questions of insurance coverage were concerned, to hold that there could be a constructive delivery of the assigned certificate of title to the purchaser. In that case the certificate of title was signed and notarized, but instead of being delivered to the purchaser as required by Sec. 301.210, it was delivered by the seller to the finance company. The court concluded the vehicle was nevertheless “owned” -by the purchaser so far as insurance was concerned.

In the case before us there is no question of compliance with the Missouri statute on ownership of a motor vehicle and no sale of the vehicle is involved. Mrs. Kloepper purchased the car when her daughter was only 13 years of age. No one contends that Mrs. Kloepper does not have full legal title to the vehicle under the Missouri statute. The only question is what is the meaning of “owner” as used in the non-owned automobile clause of the Safeco policy. Does it mean no one other than the person who is named in the Missouri certificate of title ?

As has been pointed out by other courts (see Carlsson v. Pennsylvania General Insurance Co., 214 Pa.Super. 479, 257 A.2d 861, 864 (1969)), early non-owned automobile clauses simply provided coverage with respect to any relative of the named insured who was driving a non-owned automobile, without any requirement as to having permission to drive from the owner. Cases then arose where children of insured persons stole automobiles and were involved in accidents. There would be no coverage under the omnibus clause in the owner’s policy but in such cases the court held that the non-owned automobile coverage in the policies of their parents did afford coverage. The predictable outcome, of course, was that insurers added limitations as to consent, so that they would not be liable for injuries caused by persons driving stolen automobiles.

It is clear at the outset that actual express permission of the owner is not required because the policy uses the words “reasonably believed to be with the permission”. This has reference to what could reasonably be believed by the driver as to whether he had permission of the owner.

If Jane Kloepper were the “owner” of the Dodge Dart within the meaning of the term “owner” as used in the Safeco policy, then certainly Roy Chapman had her permission to drive the car. The indications are that Roy Chapman thought Jane Kloepper was the owner. But even if Jane Kloepper were not the owner of the car within the meaning of the term as used in the Safeco policy, nevertheless Roy Chapman, under the facts and circumstances already set forth, would be reasonable in believing that whoever owned the car had put the possession in Jane with such freedom of action available to Jane in its use that if Jane gave permission to use the car it would be tantamount to the owner giving permission.

While Jane Kloepper was not the “owner” of the Dodge Dart in the sense of having a Missouri certificate of title in her name, she was the “owner” insofar as she had possession, control and dominion over the automobile most of the time and she was capable of transferring lawful possession of the automobile to Roy Chapman. Under the circumstances in the present case, for example, Roy Chapman could not be found guilty of tampering with the Dodge Dart in violation of Sec. 560.175, RSMo 1969, which prohibits persons driving, operating, using, or tampering with a motor vehicle without the permission of the owner thereof. While Roy Chapman would be liable to Mrs. Kloepper for damage to the vehicle caused by his negligence while it was in his possession as a bailee, Mrs. Kloepper would not be able to contend successfully that Roy Chapman was guilty of conversion of the automobile or guilty of some sort of trespass by virtue of the fact that he was driving the automobile on the occasion in question.

It is true that plain language in an insurance policy is not to be used to create an ambiguity where in the context of the use and application of a term none exists, but it is also established beyond question that where an insurance policy is reasonably susceptible to two or more meanings, the ambiguity will be resolved in favor of the insured.

The word “owner” is not defined in the Safeco policy and it is a word of rather broad meaning. In Powell v. Home Indem. Co., 343 F.2d 856 (8th Cir. 1965), a case involving Missouri law, the court considered the meaning of the word “owner” in an automobile liability insurance policy and said, at 859:

“The trial court in construing the word ‘owner’ must take the meaning most favorable to the insured . . . The plain and reasonable meaning of the word as applied to motor vehicles includes not only absolute estates but also includes estates less than absolute . . . ” See also 73 C.J.S. Property § 13(a), p. 181: “The term ‘owner’ is a general term having a wide variety of meanings depending on the context and the circumstances in which it is used. Broadly, an ‘owner’ is one who has dominion over property which is the subject of ownership.” Further, id. at p. 183: “The term ‘owner’ may also be synonymous with ‘holder’ or ‘possessor’ . . . ” And see, further, State ex rel. Thompson-Stearns-Roger v. Schaffner, 489 S.W.2d 207, 215 (Mo.1973), where the court was concerned with the meaning of “ownership” and “title” and said: “The term ‘ownership’ cannot be said to have a fixed, definite meaning . . . According to Black’s New Dictionary (Rev. 4th ed.), the word ‘Owner’ ‘is not infrequently used to describe one who has dominion or control over a thing, the title to which is in another.’ ”

The use which Chapman was making of Mrs. Kloepper’s automobile was not the type of unauthorized use such as stealing or trespassing which the insurers were seeking to eliminate from their coverage when they modified the non-owned clause to add the requirement of permission from the owner. If it is true that “owner” is ambiguous as used in the insurance policy, then it certainly would include Jane Kloep-per, who could be regarded as owner in the sense of one who had possession and dominion over the car. But even if “owner” means no one other than the person who has the Missouri certificate of title, then it can reasonably be said that Chapman had Mrs. Kloepper’s permission or at least he could reasonably have believed that he had permission of whoever owned the car if Jane Kloepper did not, because of the way Jane Kloepper was permitted to use the car.

The conclusion which we reach, then, is that Roy Chapman was also covered under the non-owned automobile portion of the Safeco policy.

We come now to some other contentions which first require a further statement of facts.

As stated, Joseph C. Alonzo and his son Robert filed suit to recover damages against Roy and Jane. U.S.F. & G. informed Chapman in a letter dated August 5, 1970, that it would assume the defense in the Alonzo and Norman suits, but in so doing would not waive the right to deny coverage. On October 7, 1970, the attorney for U.S.F. & G. withdrew as counsel for Chapman and William R. Gartenberg was then retained.

Gartenberg made several efforts to convince Safeco to assume the defense of Roy under the liability policy which afforded coverage to James Chapman and the members of his family. In a letter dated November 12, 1970, Gartenberg informed Safe-co that he believed it was responsible for Chapman’s defense. Safeco responded on November 25, 1970, and declined to assume the defense pending the adjudication of the declaratory judgment action brought by U.S.F. & G. Gartenberg informed Safeco that he was forced to assume Chapman’s defense. On June 7, 1971, Gartenberg informed Safeco that the Alonzo case had been assigned out to trial, that plaintiffs were willing to settle the case within the limits of the policy, and requested Safeco to assume the defense under the non-waiver clause.

Trial of the Alonzos’ suit commenced June 8, 1971. A few days before, Garten-berg qualified as Roy’s guardian ad litem.

During the trial and prior to the close of the plaintiffs’ case, U.S.F. & G., Jane, and Marshall Friedman, attorney for the Alonzos, agreed upon a settlement of $12,500 as to Jane’s liability and the trial court sustained a motion for a directed verdict on behalf of Jane Kloepper at the close of the plaintiffs’ case. Also during the trial, a statutory agreement pursuant to Sec. 537.065, RSMo 1969, was entered into between the Alonzos, Roy Chapman, William Gartenberg and Maude Chapman, mother of Roy. By the agreement Chapman admitted liability . and the Alonzos agreed that execution would not be levied on Chapman but “ . . . against only Safeco Insurance Company and United States Fidelity and Guarantee [sic] Company, Corporations, or their successors.” Gartenberg made an admission of liability before the jury and offered no evidence in defense. Mr. Friedman, without objection by Gartenberg, made a closing argument in which he told the jury not to consider where the money was going to come from to pay for the verdict, that there were “substantial sources from which the money will come” and advised the jury not to “take that into consideration at all.” The attorney for U.S.F. & G. observed the proceedings up until closing arguments and the attorney for Safeco was present during the litigation.

The jury awarded Robert Alonzo damages in the sum of $100,000 and Joseph the sum of $25,000, subsequently reduced by voluntary remittiturs to $87,500 and $18,500 respectively, the amounts sued for.

Safeco urges that the verdicts and judgments in favor of the Alonzos against Roy Chapman were based on an admission of liability pursuant to the written agreement entered into by Roy’s guardian and attorney, Gartenberg, and Roy and his mother. That agreement, Safeco contends, was in-disregard of the duties of the guardian; that under the agreement the proceedings were not adversary in nature and since Gartenberg sat silent while the attorney for the Alonzos made improper statements in argument, the verdicts and judgments obtained were “tainted with collusion and fraud” and should not be permitted to stand against Safeco even if we find that the Safeco policy extended coverage to Roy Chapman.

On the other hand, the Alonzos contend that Safeco was obligated to defend the Alonzos’ suit, was requested “to assume the defense of the Alonzo suit under a reservation of rights”, was “present when the case was assigned for trial”, was “afforded every opportunity to assume the defense”, and is bound by the results thereof. Under such circumstances and having exhausted efforts to have Safeco assume the defense, it is said the conduct of Gartenberg was in the exercise of his duty for the protection and best interests of his client, Roy Chapman.

Sec. 537.065, RSMo 1969, has not been the subject of many decisions, but an agreement authorized by this section has been upheld. In Eakins v. Burton, 423 S.W.2d 787, 790 (Mo.1968), such an agreement was entered into and the insurance company, having refused to defend, contended that the defendant made a wrongful use of the section because the “. agreement dispensed with the necessity of defendant making a defense to plaintiffs’ claims in order to protect his personal interests.” This court saw “no merit” in that contention. “The contract was of a type expressly authorized by the statute [I]n the event plaintiffs seek to collect the instant judgments [the insurance company] will have an opportunity to litigate the question of its liability on its policy.”

The precise question that we must resolve and the one which Safeco relies on in its brief is whether the agreement admitting liability on the part of Chapman and the inaction on the part of Gartenberg during the Alonzo arguments were so tainted that the verdicts and judgments in favor of the Alonzos cannot stand. We hold, as did the trial court, that the verdicts and judgments obtained were not obtained fraudulently or collusively.

There is no question that Safeco was notified of the Alonzo suit, was requested to assume the defense thereof, and requested to defend under a reservation of rights. Safeco consistently declined to do so. Having failed to induce Safeco to assume the defense, Gartenberg entered into the agreement, acting in his capacity as guardian and attorney for Chapman and owing him the highest fealty. Gartenberg discussed the facts with his clients; he felt that the jury was favorable to the plaintiffs and expected verdicts in excess of the policy limits. Under the circumstances, Gartenberg’s primary concern was to protect his ward since Safeco declined to defend.

Safeco, having been notified of the Alonzo action and having been requested to defend the Chapman suit hut refusing to do so, placed Gartenberg in the position of protecting his ward. Gartenberg, in sitting silent, was not guilty of fraud under the facts. There is no claim or evidence that Gartenberg agreed in advance as to the argument or that he knew it was coming.

Safeco quotes from Tracy v. Martin, 363 Mo. 108, 249 S.W.2d 321, 323 (banc 1952) that “. . . It is the duty of the guardian ad litem to defend the suit. He cannot admit or waive anything which goes to sustain the claim of the adverse party .” In the Tracy case, there was no insurer which was supposed to pay plaintiff’s claim against the minor if there were coverage and the quoted language must be considered in light of the facts in that case. The present case more nearly fits what was said about the guardian ad litem in Cox v. Wrinkle, 267 S.W.2d 648, 651 (Mo.1954): “. . .A guardian is to do for the infant what with riper judgment he would do for himself . . .”, or in In re G_, 389 S.W.2d 63, 66 (Mo.App.1955): “. . . He [the guardian ad li-tem] should not waive or give up anything which affects the interest of his ward . ” Viewed in this light, the admission of liability made by the guardian ad litem was not a breach of duty, even though at first glance it appears contra to the admonition from Tracy v. Martin, supra. Gartenberg, acting as guardian, was confronted with a situation which may have been greatly detrimental to the interests of his ward — expected verdicts in excess of the policy limits — and believed it was in the best interests of his ward to enter into the statutory agreement. Garten-berg was under no obligation to protect the interests of Safeco.

While Safeco was thereby left in an exposed position, the agreement was specifically authorized by the statute and followed the language and purposes thereof. Eakins v. Burton, supra. There is no question but that an insurer which has elected for what it considers valid reasons not to defend a pending damage suit can be placed in a difficult position by those acting under the statute, but infirmities of this sort in the statute, if so, can be corrected by the general assembly.

What disposition is to be made of these appeals? We have held that Roy Chapman was covered by both policies, as did the trial court. The U.S.F. & G. policy provides a maximum of $25,000 for any one person, including loss of services, and a maximum of $50,000 for any one occurence. We cannot tell from the record what the limits of the Safeco policy are for any one person, but the limit appears to be $50,000 for any one occurrence. The Safeco policy also provides medical payments coverage, with a limit of $2,000 per person.

Robert Alonzo has recovered judgment against Roy Chapman for $87,500, the full amount sued for. His father has recovered judgment against Roy Chapman for $18,500 for loss of services, also the full amount sued for, but of course, these consequential damages must be considered as falling within the policy limits set for any one person. Deborah Norman has a judgment against Roy Chapman for $45,000. These judgments are unsatisfied.

In addition, as earlier related, during the trial of the Robert Alonzo case against Jane Kloepper and Roy Chapman, a settlement was made by U.S.F. & G. whereby upon payment of $12,500 a motion for directed verdict was sustained in favor of Jane Kloepper. Later this $12,500 paid by U.S.F. & G. was allocated by the probate court $2,500 to Robert Alonzo and $10,000 to his father. The record does not disclose whether anyone else, either person or corporation, was also released as part of the $12,500 settlement.

The record does not show whether the jury in the Alonzo-Roy Chapman litigation was informed of the $12,500 payment and, if so, how they were instructed to treat it in assessing damages if they found for the plaintiffs, as they did. See the cases on this subject cited in the Committee Comment under M.A.I. 7.01, Missouri Approved Instructions (2d ed.) p. 61.

Both policies contain substantially identical other insurance clauses. The two clauses are in agreement that coverage as to a non-owned automobile is excess over any other valid and collectible insurance. This accords with the general rule which places primary liability on the insurer of the owner of the automobile involved rather than on the insurer of the operator, where we are dealing with the standard automobile liability policy. Powell v. Home Indemnity Company, supra; Fidelity & Casualty Co. of N. Y. v. Western Casualty & Surety Co., 337 S.W.2d 566 (Mo.App.1960); State Farm Mutual Auto. Ins. Co. v. Mid-Continent Casualty Co., 378 S.W.2d 232 (Mo.App.1964). It is clear from the clauses that the U.S.F. & G. policy, being the policy which covers the Dodge Dart as the owned automobile (that is, owned by the named insured, Dorothy Kloepper) has the primary coverage, while Safeco, which is the policy which covers the Dodge Dart as a non-owned automobile (that is, non-owned by James A. Chapman, who is the named insured in the Safeco policy, or by his son, Roy) has only excess insurance over the U.S.F. & G. insurance. See Fidelity & Casualty Co. of N. Y. v. Western Casualty & Surety Co., supra, and 76 A.L.R.2d 502, 505. The trial court, however, made no disposition of the respective liabilities of the two companies on the Alonzo and Norman judgments and the interest to be paid on the same, although U.S.F. & G. prayed for such a declaration as part of its declaratory judgment action.

The Alonzos, while not counterclaiming against U.S.F. & G., did cross-claim against defendant Safeco and the trial court awarded the Alonzos $52,000 against Safeco on Count I. This judgment must be reversed as it does not take into consideration the Norman judgment and how the judgments totalling $151,000 ($106,000 + $45,000) are to be apportioned from the total coverage of $100,000 and $2,000 medical payments. As part of their cross claim against Safeco, the Alonzos included Count II, wherein they sought judgment against Safeco for the entire $106,000 in Alonzo judgments, on the ground Safeco was guilty of bad faith in refusing to settle and defend when it could have done so within the policy limits. The effect of the trial court’s judgment on Count I is to find against the Alonzos and Count II on the claim of bad faith by Safeco in failing to settle, which action we affirm, as we do not believe the record supports such claim, Landis v. Century Indemnity Company, 390 S.W.2d 558 (Mo.App.1965), nor have the Alonzos appealed such ruling.

The Normans did not counter-claim against U.S.F. & G., nor cross-claim against Safeco, but, as stated, U.S.F. & G., prayed for a declaration of the rights of all the parties and Safeco sought a similar determination in its cross claim, and it being undisputed that Deborah Norman has a $45,000 judgment against Roy Chapman, the trial court must also declare her rights and the obligations of the insurers with respect thereto.

We therefore affirm the action of the trial court in finding coverage as to Roy Chapman under both policies and the action of the trial court in denying that count in the cross claim of the Alonzos which seeks to hold Safeco liable for the entire judgment on the charge of alleged bad faith in failing to settle and defend. We also affirm the action of the trial court in holding the Alonzo verdicts and judgments were not obtained fraudulently and collusively.

We reverse the action of the trial court in awarding the Alonzos $52,000 judgment against Safeco and remand for further proceedings as to all parties in accordance with this opinion.

MORGAN, BARDGETT, and FINCH, JJ., concur.

HOLMAN, J., concurs in result.

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

HENLEY, J., dissents and concurs in separate dissenting opinion of DONNELLY, J.

DONNELLY, Chief Justice

(dissenting)-

The policy issued by U.S.F. & G. to Dorothy Kloepper contained the following omnibus clause:

“The following are Insureds under Part I:
(a) with respect to the owned automobile,
(1) the Named Insured and any resident of the same household,
(2) any other person using such automobile with the permission of the Named Insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, and . . .”

The principal opinion gives this omnibus clause the following construction:

“4. Permission from the named insured can be found or implied from a course of conduct which evidences the willingness of the named insured to permit the first permittee to authorize others to drive, such as the broad and unrestricted use given by the named insured to her daughter in this case.”

In effect, the Court has now ruled “that a named insured’s grant of the unrestricted general use of the automobile to another includes authority to the latter to delegate its use to third persons, and that under * * * permission of that character a second permittee’s use of the car * * * is with the implied permission of the named insured within the meaning of the omnibus clause.” 4 A.L.R.3d 10, 75.

I must respectfully disagree for at least the following reasons:

(1) I do not believe parents intend this result whén they give a child such use of a family automobile.
(2) In my opinion, an insured cannot be expected to intend to pay for coverage of persons who use his vehicle without his consent.” American Motorists Insurance Company v. LaCourse, 314 A.2d 813 (Me.1974).
(3) Until today, the word “permit” has been defined by this Court “as meaning ‘to allow after notice or knowledge.’ ” Sanders v. City of Carthage, 330 Mo. 844, 852, 51 S.W.2d 529, 532 (1932).

I dissent.

      . Robert Alonzo’s judgment against Roy Chapman was for $87,500. His father’s for loss of services was $18,500. Deborah Norman’s judgment against Chapman was for $45,000. There were no appeals.

      . It is argued that Mrs. Kloepper would never have given permission for Jane to permit someone who had been drinking to drive the car. However, the wisdom of Mrs. Kloepper’s implied permission is not an issue. The question is how broad was the implied permission. This must be determined by judging from Mrs. Kloepper’s objective conduct the scope of the implied permission, not subjectively as to what Mrs. Kloepper may have thought to herself.

      . It is significant that Safeco did not see fit to define owner as being only the person who had the legal certificate of title, which it could easily have done had that been its position.

      . Such argument was improper and censurable. Rytersky v. O’Brine, 335 Mo. 22, 70 S.W.2d 538 (1934); Murphy v. Graves, 294 S.W.2d 29 (Mo.1956).
      However, suppose Safeco had been defending the case and had permitted the argument to have been made without objection and had taken no appeal. Safeco would be in no position to complain, on execution, about the argument.

      . The section provides, in part, as follows:
      “Any person having an unliquidated claim for damages against a tortfeasor . may enter into a contract with such tort-feasor or any insurer in his behalf or both, whereby, in consideration of the payment of a specified amount, the person asserting the claim agrees that in the event of a judgment against the tortfeasor, neither he [nor others claiming by him] . . . will levy execution, by garnishment or as otherwise provided by law except against any insurer which insures the legal liability of the tortfeasor for such from execution, garnishment or other legal damage and which insurer is not excepted procedure by such contract.”

      . Both policies provide the limit of bodily injury liability stated in the declarations as applicable to “each person” is the limit of the insurer’s liability for all damages, including damages for loss of services, arising out of bodily injury sustained by one person. See the annotation in 13 A.L.R.Sd 1228, 1234-38. The theory is that “ . . . the limitation was applicable to all claims of damage flowing from such bodily injury, and that therefore it is immaterial that some part of the damage may be claimed by a person other than the one suffering the bodily injuries. In other words, all damage claims, direct and consequential, resulting from injury to one person, are subject to the limitation.” 13 A.L.R.3d l. c. 1234.


source: Caselaw Access Project

author: BILLINGS, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Jerry PRUETT, Appellant.
    No. 9492.
    Missouri Court of Appeals, Springfield District.
    April 23, 1975.
    Rehearing Denied May 9, 1975.
    John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
    William H. Bruce, Jr., Ellington (on brief), L. Dwayne Hackworth, Piedmont, for appellant.
    Before BILLINGS, C. J., and HOGAN and TITUS, JJ.
   BILLINGS, Chief Judge.

Defendant Jerry Pruett was sentenced under the Second Offender Act to a five year prison term for felonious stealing following his conviction by a Reynolds County jury. In this appeal the defendant, inter alia, has challenged the sufficiency of the evidence to support the verdict and judgment. We have reviewed the record in its entirety and agree with the defendant’s contention. The judgment is reversed and the case remanded.

Sometime during the night of March 6, 1972, or the early morning hours of March 7, 1972, a drug store at Ellington, Missouri, was forcibly entered and a quantity of narcotics and merchandise stolen.

On March 9, 1972, in St. Louis, Missouri, the defendant was riding in the front seat of an automobile owned by Alice Carpenter and driven by Donnie Morrison. Larry Schoenich was a passenger in the rear seat of the vehicle. The car was stopped by St. Louis police officers, the interior of the vehicle searched at the scene, and the defendant and his companions arrested. At a later time at the police station the locked trunk of the car was searched, and items identified by the drug store owner as having been stolen from his Ellington store were found. These articles were admitted in evidence at the defendant’s trial.

There was no evidence that the defendant, his companions, or the vehicle they were in on March 9, were in the Ellington area before or after the theft from the drug store. The record is silent as to when the defendant entered the automobile and contains no testimony as to when the stolen articles were placed in the vehicle’s trunk or by whom. There is no evidence the defendant exercised any control over the automobile.

“Where the evidence of defendant’s agency in connection with the [stealing] charged is entirely circumstantial, the facts and circumstances relied upon by the state to establish guilt must not only be consistent with each other and with the hypothesis of defendant’s guilt, but they must also be inconsistent and irreconcilable with his innocence and must point so clearly and satisfactorily to his guilt as to exclude every reasonable hypothesis of innocence. . . . ” State v. Walker, 365 S.W.2d 597, 601 (Mo.1963).

Here, the defendant’s conviction of felonious stealing in this wholly circumstantial evidence case is dependent solely upon the inferences of guilt which the jury is permitted to draw in Missouri from the circumstance of an accused’s unexplained possession of recently stolen property. State v. Chase, 444 S.W.2d 398 (Mo. banc 1969); State v. Cobb, 444 S.W.2d 408 (Mo. banc 1969).

“Generally speaking, a defendant’s possession of property stolen in a burglary should, to afford evidence of his guilt, be recent, that is, not too remote in point of time from the crime, personal, exclusive, distinct and conscious, and unexplained.” 12 C.J.S. Burglary § 59b, at 736-737 (1938).

The requirement of “exclusiveness” does not mean that the possession must necessarily be separate from all others, since an “exclusive” possession may be the joint possession of two or more acting in concert. However, if the possession relied upon to raise the guilt inference is joint with another, there must be something else in the evidence to connect the defendant with the offense. “Where there is only a joint possession of recently stolen property our recent' affirmances have all contained something additional which ties defendant to the burglary and stealing.” State v. Farmer, 490 S.W.2d 72, 74 (Mo.1973) (our emphasis).

In holding the evidence insufficient to support the defendant’s conviction in State v. Farmer, supra, the court held that where the defendant was intoxicated and “passed out” in the rear seat of an automobile being operated by the owner, and with another passenger present in the car, the defendant was not in “exclusive” possession of a recently stolen cash register which was on the rear floor of the automobile but at most he was in joint possession with the owner of the vehicle and possibly the other passenger. There was no other evidence to link the defendant to the theft, and lacking such additional facts, the court held the conviction could not stand. “The circumstances are suspicious, but suspicion of guilt, however strong, is not sufficient to overcome the presumption of innocence and to sustain a criminal conviction.” 490 S.W.2d at 75.

Giving the state the benefit of the most favorable view of the evidence and inferences in support of the conviction [State v. Schleicher, 438 S.W.2d 258 (Mo.1969)] the most that can be said in this case is that the state proved the defendant was in joint possession of property stolen two nights before at a location many miles away. This joint possession is founded solely on his being a passenger in a car the trunk of which contained stolen articles, with nothing to show any past connection with either of the other two men in the car, or with the car itself. In the absence of additional facts and circumstances to connect the defendant with the theft from the drug store there is not enough in the transcript before us to support a legal inference that the defendant participated in the crime.

There may be other evidence on which the state can make a submissible case, and the cause is therefore reversed and remanded. However, if the state cannot produce additional evidence, the case should be dismissed and the defendant discharged.

All concur.

      . In view of our determination that the evidence is insufficient to support the verdict and judgment, we do not consider nor rule upon the defendant’s points concerning his arrest, search and seizure, and various other alleged errors.


author: ROBERT R. WELBORN, Special Judge.

text:
    W. H. WINCHESTER, Jr., Contestant-Appellant, v. Ralph ADKISSON, Contestee-Respondent.
    No. 9857.
    Missouri Court of Appeals, Springfield District.
    April 28, 1975.

      David E. Blanton, W. H. Winchester III, Blanton, Blanton, Rice & Sickal, Si-keston, for contestant-appellant.
    Marvin S. Wood, Wayne L. Millsap, Clayton, for contestee-respondent.
    Before BILLINGS, C. J., HOGAN and FLANIGAN, JJ., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment dismissing petition in primary election contest.

The official returns for the Mississippi County primary election on August 6, 1974 showed that Ralph Adkisson received 2,036 votes and W. H. Winchester, Jr., 2,032 votes for the Democratic nomination for Presiding Judge of the County Court.

On August 13, Winchester filed his verified petition in the Circuit Court of Mississippi County, contesting the election. Pursuant to § 124.020, RSMo 1973 Supp., the court set a preliminary hearing on the petition for August 16. The contestee filed a motion to dismiss the petition for failure to state a claim upon which relief might be granted. The motion was taken up on August 16 and contestee given leave to file a brief by September 1. The matter was set for hearing September 28.

On September 10, the court sustained the contestee’s motion to dismiss, but granted contestant leave to file an amended petition. The amended petition was filed, con-testee filed a motion to dismiss, and the motion was sustained, all on September 10. On October 10, the contestant filed notice of appeal to this court.

On October 21, contestant-appellant filed a motion to waive procedural requirements and to set the appeal for immediate hearing. The motion was overruled October 24. The transcript on appeal was filed October 25.

On November 29, 1974, contestee-respon-dent filed his motion to dismiss the appeal as moot because the general election had been held November 5, 1974, and the Mississippi County Clerk had certified that contestee was elected to the office of Presiding Judge of the County Court in such election. The motion was ordered taken with the case. The parties thereafter filed their briefs and the matter has been orally argued and submitted.

Prior to 1972, no appeal lay from the judgment of the circuit court in a primary election contest. § 124.050, RSMo 1969, V.A.M.S. See State ex rel. Bess v. Schult, 143 S.W.2d 486, 492-494[13]-[17] (Mo.App.1940). Section 124.050, RSMo 1969, V.A.M.S., was repealed by Senate Bill 628 of the 76th General Assembly, 2d Regular Session. Laws of Mo., 1971-1972, p. 658. A new Section 124.050 w.as enacted, as follows :

“Either party may appeal the judgment of the court to the court of appeals of appropriate jurisdiction who shall give preference in the order of hearing to all other cases in order to conclude the appeal prior to the date of the general election and shall hear the case in the same manner as appeals of cases in equity. The practice and procedure prescribed in civil actions shall be followed in all respects not inconsistent with sections 124.010 to 124.050; provided, that if the contestee shall fail to appear and participate in the proceeding, the costs shall be taxed against the contes-tón”

Contestee-respondent argues, in support of his motion to dismiss this appeal, that the 1972 enactment by the General Assembly recognized and gave effect to the law theretofore established that a primary election contest becomes moot after the general election has been held for the office in which the primary contest has been attempted. Respondent’s principal reliance is on the decision of the Supreme Court en banc in State ex rel. and to Use of Conran v. Duncan, 333 Mo. 673, 63 S.W.2d 135 (banc 1933). In that case a primary election contest was filed in a race for nomination in the 1932 primary election. The contestee sought a writ of prohibition from the Supreme Court. The preliminary writ issued and the cause was argued to the court on October 28, 1932. The contestant did not appear for oral argument and did not ask for prompt disposition of the case.

In its decision, handed down August 23, 1933, the court held that the rights of the contestant were foreclosed in view of the fact that the general election had been held on November 8 and the contestee certified as elected. The court stated (63 S.W.2d 137-138):

“A candidate for nomination to public office has no inherent right to contest his opponent’s nomination at a primary election. Where the statutes afford such right they are controlling and exclusive. 20 C.J. § 122, p. 119. The act of 1931, Laws Mo. 1931, p. 205, distinctly evidences an intent that contest proceedings shall move along with expedition and be concluded in time to permit the name of the successful candidate to be placed on the election ballot. And it has heretofore been judicially conceded in this state that legal proceedings to determine whether the name of a candidate should be printed on an election ballot must be finally adjudicated in time to allow for the placing of the name on the ballot. State ex rel. Neu v. Waechter (Mo. Sup. banc) [332 Mo. 574] 58 S.W.2d 971. With special reference to primary election contests, it was said in State ex rel. Dorsey v. Sprague, 326 Mo. 654, 660, 33 S.W.2d 102, 104, ‘a primary contest, in order to be effective, must be summary and speedy.’ Speaking of Laws Mo.1929, p. 194 (Mo.St.Ann. §§ 10293 note to 10297 note), the immediate predecessor of the act of 1931 here involved, this court declared in State ex rel. McDonald v. Lollis, 326 Mo. 644, 652, 33 S.W.2d 98, 101, ‘these provisions indicate a clear intent on the part of the Legislature to provide for a speedy contest in order that the successful party’s name might appear on the ballot as a candidate at the November election.’ All this implies that, if the contest is not concluded in time to permit of the placing of the name on the ballot, the contest proceeding must yield to the election, rather than the election to the contest proceeding — in other words, the fact that some contest proceeding is pending and undetermined will not invalidate the election. And so it has been held in other jurisdictions. The doctrine as stated in 20 C.J. § 132, p. 123, is as follows : ‘Where no questions of general public importance are involved, the court cannot hear or determine a contest after the general election has been held, unless there is some statutory reason therefor.’

“This text is supported by the following decisions: Johnson v. Dosland, 103 Minn. 147, 114 N.W. 465, 466; Johnson v. Bauchle, 149 Minn. 144, 146, 182 N.W. 987; Townsend v. Crow, 117 Md. 1, 82 A. 657, 661. In the Dosland Case, first cited, the contest proceedings in the district court were protracted until after the general election and finally resulted in a judgment for the contestee, from which the contestant appealed. The Supreme Court of Minnesota said: ‘The contestee’s name went upon the official ballot under order of the court and the sanction of the law, and the authorities do not support the suggestion that the election may be overturned and electors disfranchised, long after the election is past and the result thereof acted upon by those interested, for irregularities, or even fraud, in nominating conventions or primary nominating elections. Contests for nomination as party candidates for public office must be settled before the general election, and, when not, those whose names go upon the official ballots as the regular nominees are entitled to all benefits therefrom, whether they, perchance, could have been in contest proceedings ousted of the right or not.’

“Since the election laws of this state do not make the pendency of an undetermined primary election contest case fatal to the holding of an election to fill the office involved, and since the act of 1931 so plainly discloses a legislative intention that such contest proceedings shall be prosecuted to a conclusion before the election, we must hold in this case that questions as to the rights of the contestant, Cook, have become moot. To all intents and purposes and by analogy the contest action is abated so far as he is concerned. Gantt v. Brown, 244 Mo. 271, 301, 149 S.W. 644, 646, Ann.Cas.1913D, 1283.”

The 1972 enactment is much clearer than the 1931 enactment, involved in Conran, insofar as it expresses an intention that the contest of the primary must be concluded before the general election. Thus paragraph 4 of § 124.020, dealing with the proceedings in the circuit court, provides (emphasis supplied):

“The cause shall have preference in the order of hearing to all other cases and shall be commenced at the date set and heard day to day until determined, including evenings and weekends, if necessary, to conclude the case in advance of the general election.”

Likewise, in § 124.050, dealing with appeals, the court of appeals is required to give precedence to the appeal “in order to conclude the appeal prior to the date of the general election * *

If such language is to receive any meaning, it must be as express recognition by the General Assembly of the necessity of concluding the primary contest before the general election.

The contestant-appellant offers various objections to such construction. In the first place, he contends that the primary election of the Democratic Party in Mississippi County is the equivalent of a general election because there was no Republican primary contest for the office and no Republican candidate on the general election ballot. This court is not empowered to exercise the legislative prerogative of creating an exception for such situation. Insofar as the law is concerned, a primary election determines only who the party’s nominee for office shall be. The winner is entitled only to have his name appear as the candidate of his party for the office on the general election ballot. § 120.540, RSMo 1969, V.A.M.S. Section 124.050 applies to appeals in primary election contests, without regard for whether or not the winner of the primary is opposed in the general election.

Appellant asserts that this appeal is not moot because the term of office involved in the election contest has not expired. Appellant cites Adams v. Hamilton, 442 S.W.2d 138 (Mo.App.1969), in which an appeal was dismissed as moot in an election contest involving elections to city offices. The appeal was held moot because the term of offices involved had expired. That case is no authority for the proposition that a primary contest is not moot so long as the term of the office involved has not expired. The statute pertaining to the contest of primary elections is the controlling factor on the issue of mootness, not the term of the office involved.

Appellant argues that the time required for perfecting and presenting an appeal is such that if Section 124.050 is to be construed to require appellate determination of the case before the general election, the intention of the General Assembly to provide a right of appeal will be nullified.

The fact that the legislature in enacting Section 124.050 called for expeditious handling of the appeal so that it might be disposed of prior to the general election demonstrates that the assembly was aware of the time problem which an appeal would encounter. An argument based upon the length of time which might be consumed if certain procedures were followed in the trial court is not convincing as showing an impossibility of accomplishing the appellate review within the limited time available. The courts are aware of the problem presented and have traditionally been cooperative in such cases. See Mansur v. Morris, 355 Mo. 424, 196 S.W.2d 287 (banc 1946); State ex rel. Camillo v. Hess, 458 S.W.2d 721 (Mo.App.1970) ; State ex rel. Bonzon v. Weinstein, 514 S.W.2d 357 (Mo.App.1974). Ingenuity and timely initiative on the part of the contestant and his counsel are also required, but the problem is by no means insurmountable. There has been no such demonstration of impossibility of obtaining appellate review within the time limited as would call for a construction of Section 124.050 which ignores the time limitation found there.

Appellant also contends that the cause should not be dismissed as moot because the public interest is involved. State ex rel. and to Use of Conran v. Duncan, supra, demonstrates the type of question of public interest which may be determined even if a case is moot. In that case, the court considered and determined questions raised by the relator regarding the constitutionality of the primary election contest statutes. However, even though it decided such questions adversely to the relator-con-testee, the court quite clearly directed that no further action be taken in the contest because the general election had rendered the issues it presented moot.

In this case, the only issue presented is the adequacy of the contestant-appellant’s petition and amended petition. Public interest does not require that such issue be determined at this time by this court.

Appellant finally argues that the right of the electorate to select their officials is much greater than the need for a speedy election contest. This, it is submitted, is a policy argument properly directed to the legislature, not to the court. Statutes in some states do provide for determination of primary election contests after a general election has been held. See § 23-3-55, Miss.Code (1972); Smith v. Deere, 195 Miss. 502, 16 So.2d 33 (1943); § 102.163, West’s F.S.A. (1973); Barber v. Moody, 229 So.2d 284 (Fla.App.1969). Those statutes prescribe the effect of a decision in favor of the contestant — a new election in Mississippi, installation of the successful contestant in office in Florida. Some such legislative guidance would be necessary if a contest such as that here involved is to be carried on after the general election. See State ex rel. Bonzon v. Weinstein, supra.

The authority of the judicial branch of government in election contests is limited to that conferred by statute. The statute here involved evidences a legislative intention that appeals thereunder be concluded before the general election. Therefore, respondent’s motion to dismiss for mootness is sustained and the appeal ordered dismissed.

Appeal dismissed.

BILLINGS, C. J., and HOGAN and FLANIGAN, JJ., concur.


author: FLANIGAN, Judge.

text:
    STATE of Missouri, Respondent, v. Russell BENFIELD, Appellant.
    No. 9728.
    Missouri Court of Appeals, Springfield District.
    April 28, 1975.

      James F. Ford, Kennett, for appellant.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Defendant Russell Benfield, charged as a second offender (§ 556.280, V.A.M.S.), was found guilty by a jury of the offenses of burglary and stealing, § 560.110, V.A.M.S. Judgment was rendered accordingly and the defendant received consecutive sentences of eight years for the burglary and four years for the stealing, the court having made the prior conviction findings required by § 556.280(2), V.A.M.S. This court reverses and remands for the reason that certain evidence was improperly introduced by the state.

Defendant’s first point is that the trial court erred in overruling his motions for acquittal which were filed, respectively, at the close of the state’s evidence and at the close of all of the evidence. Both motions challenged the sufficiency of the evidence to support a conviction. At the close of the state’s case the defendant did offer evidence and, in so doing, he waived any claim of error as to his motion of acquittal filed at the close of the state’s case. State v. Hill, 438 S.W.2d 244 (Mo.1969).

In determining the sufficiency of the evidence to support the conviction, this court must view the evidence in the light most favorable to the state, accept all substantial evidence and all legitimate inferences fairly deducible therefrom tending to support the verdict, and reject contrary and contradictory evidence. State v. Petrechko, 486 S.W.2d 217 (Mo.1972). This court must disregard all evidence unfavorable to the state and reject all inferences unfavorable to the state. State v. Summers, 506 S.W.2d 67 (Mo.App.1974). The defendant offered the testimony of himself and other witnesses and thus the submissi-bility of the case will be determined upon all of the evidence. State v. Sykes, 372 S.W.2d 24 (Mo.1963); State v. Chester, 445 S.W.2d 393 (Mo.App.1969).

An unusual feature of this case is that Roger Benfield, brother of the defendant, testified that he, Roger, committed the burglary and the stealing and that the defendant did not participate. According to Roger, the defendant was asleep in the back seat of defendant’s car which Roger had parked near the scene of the burglary shortly prior to committing it. Although the jury may have been impressed by Roger’s fraternal spirit, it rejected his claim of sole responsibility.

The information charged that the defendant, on November 1, 1972, burglarized a building owned by Riggs Supply Company and located in Kennett, Missouri, and further charged that the defendant stole therefrom a .38 caliber Smith & Wesson revolver, the property of A. M. Riggs.

Witnesses for the state included Dolph Riggs, III, and three police officers: Jack Davis, Jack Jones, and James Elliott.

Dolph Riggs, III, testified that the building of Riggs Supply Company consists of several warehouses, interconnected. On November 1, 1972, in the office part of the building, a .38 caliber Smith & Wesson revolver owned by the witness’s father, A. M. Riggs, was kept in a holster bolted underneath a swivel chair at one of the desks. State’s Exhibit 1 is that revolver. At 11:30 p. m. on that date, the witness was summoned to the building. On arrival he found Elliott and other officers. The burglar alarm was sounding. On entering the front door the witness noticed that a warehouse door was open and it was apparent that “something was amiss” because the warehouse door normally would have been padlocked from the outside. Entry to the building had been gained through a hole in a large overhead door, the hole having been “knocked out or chopped out.” The chair to which the holster was bolted had been overturned and the revolver was missing. Shortly afterwards Davis brought state’s Exhibit 1 to the witness. No one had been given permission to break into the building. The witness identified photographs of the overhead door, including one showing pieces of plywood which had been broken out of it.

Jack Davis testified that he and Elliott received a radio message that the burglar alarm was sounding and arrived at the Riggs building between 11 and 11:30 p. m. The two officers drove to the front of the building, where Elliott got out. Davis drove to the back in the patrol car and noticed some tail lights on a vehicle nearby. That vehicle turned into a gin yard and Davis followed in the patrol car. The pursued vehicle became stuck in mud and Davis stopped the patrol car. The defendant was the driver and sole occupant of the pursued vehicle and it was about 50 feet away from Riggs building, moving away from that building, when Davis first saw it. Lying in the center of the front seat of defendant’s car was the revolver, state’s Exhibit 1. On the back floorboard there were some tools and a pair of gloves, the latter being the “same type as Riggs furnishes their employees.” Davis “placed [■defendant] under arrest, put him in my car and drove around to the front of the building.”

Jack Jones identified certain tools which he had found on the back floor of the defendant’s vehicle, including a tire tool (state’s Exhibit 7) and a hatchet, each of which had blue paint on it, “the same color as the outside of Riggs Supply Company,” The witness took the defendant to jail and had the defendant remove his shirt and shoes. There were some wood shavings clinging to the shirt.

James Elliott testified that the shirt worn by the defendant contained wood particles. State’s Exhibit 16 consisted of wood particles from the inner part of the overhead door and it contained cloth fibers. The area outside the overhead door is enclosed by a chain link fence topped by three strands of barb wire, and the witness found no evidence of blood on the fence.

The principal witnesses for the defendant were the defendant and his brother, Roger Benfield. At the time of the trial, Roger was serving a prison sentence, having been convicted of an unrelated offense.

Roger testified that he and the defendant had been drinking intoxicants most of the day of November . 1, 1972. That evening the defendant “passed out” in the back seat of defendant’s car. Earlier in the evening the defendant vomited on his shirt and for that reason had taken it off. Roger, who had been warned of his constitutional rights prior to testifying, stated “I broke into Riggs.” He had gained entrance by knocking a hole in the overhead door, using state’s Exhibit 7. After Roger gained entrance to the building, the burglar alarm went off. Roger ran to the office, “I was going to get in the desk.” A chair fell over and Roger took the revolver. Roger also took a pair of gloves. Roger left the premises rapidly and stated that he cut his hand climbing over the fence and it bled. No blood was found on Exhibit 7 or on the gloves. Roger ran to the car, woke up the defendant, saw lights approaching, “I did not know whether it was the police or not,” and ran to his sister’s home located about 200 feet away. Roger was not seen by the officers that night.

Roger testified that he put on the defendant’s shirt before committing the burglary because Roger was wearing a white T-shirt and the defendant’s shirt was dark colored. When Roger returned to the car, he took the shirt off and the defendant put it on.

The defendant’s testimony, in general, was consistent with that of Roger with respect to defendant’s drinking and passing out. Defendant stated that the gloves found in his car were not his. He said that after Roger had awakened him, Roger told defendant he had seen some headlights and was going to run. The defendant attempted to drive away and stopped when the officer told him to do so. He had no explanation for the presence of a Yale lock which was found in his car by Officer Davis. The lock was similar to the one removed from a door on the Riggs premises.

From the foregoing evidence it is clear that the Riggs building was in fact burglarized and the revolver stolen from the premises.

“The unexplained possession of property recently stolen in a burglary is sufficient to support a submission of both the burglary and stealing. State v. Cobb, 444 S.W.2d 408 (Mo.1969).” State v. Miller, 499 S.W.2d 496, 499[4] (Mo.1973). “Thus, it was shown that appellant not only was present at the scene with opportunity to commit the crime of burglary and stealing, but he was also seen leaving the scene with stolen property, facts and circumstances which not only prove appellant’s guilt but are also inconsistent with his innocence.” State v. Matha, 446 S.W.2d 829, 831 (Mo.1969). See also State v. Kellick, 521 S.W.2d 166 (Mo.App.1975).

Although the jury may have accepted Roger’s testimony with respect to the manner in which the offenses were committed, it did not believe that portion of Roger’s testimony which exculpated the defendant. The defendant asserts that the testimony of defendant and Roger Benfield “conclusively show that appellant did not commit the offense.” However, the credibility of the explanation for defendant’s possession of the revolver, state’s Exhibit 1, which was recently stolen in the burglary, “is a question of fact for the jury; and if the jury disbelieves it the case stands with his possession unexplained.” State v. Denison, 352 Mo. 572, 178 S.W.2d 449, 454[7, 8] (1944). See also State v. Clark, 438 S.W.2d 277, 279[3] (Mo.1969). The evidence was sufficient to support the conviction.

Defendant’s second point is that the trial court erred in excluding testimony of five witnesses with respect to statements made to them by Roger. The offer of proof was that if the witnesses were permitted to testify, they would state that Roger told them that the defendant had nothing to do with the Riggs burglary and that the defendant was passed out in the back seat of the car.

The trial court properly rejected the offered testimony for the reason that the state had not introduced any evidence that Roger had made any prior statement inconsistent with his trial testimony. It is true that Roger was extensively cross-examined with regard to the details of his testimony, but such cross-examination is not in itself a sufficient predicate for the introduction, for rehabilitation purposes, of prior consistent statements of Roger.

“Absent the introduction of evidence to establish statements contradicting the testimony given by the witness, impeachment resulting from mere cross-examination is insufficient to render admissible prior extrajudicial consistent statements.” State v. Fleming, 354 Mo. 31, 188 S.W.2d 12, 16[7] (1945). That language is quoted with approval in McElhattan v. St. Louis Public Service Company, 309 S.W.2d 591, 594[2] (Mo.1958), and State v. Degraffenreid, 477 S.W.2d 57, 63 (Mo. banc 1972). Mc Elhattan, 309 S.W.2d at p. 595, holds that prior consistent statements of a witness, offered for the purpose of rehabilitating the witness, are not admissible in the absence of evidence “tending to establish statements made by the witness, which statements were inconsistent with his testimony at the trial.”

Defendant’s third point is that the trial court erred in failing to declare a mistrial because of certain testimony elicited during the direct examination of Officer Elliott and as a part of the state’s case. Elliott had testified that he and Officer Davis went to the Riggs premises on the night of the burglary and inspected the conditions there. The witness took photographs of portions of the premises. After the witness identified the photographs, the following occurred:

“Q In the process of this investigation did anyone advise Russell Benfield of his constitutional rights?

A Yes, I did.

Q Did he make any statements ?

A No.

Q At that time? A No, he did not.

Q Did he make any statements to your knowledge at any other time? A No.

Q Now, did you obtain any of Russell Benfield’s clothing—

MR. FORD: Charlie.

(The following proceedings were had in the presence but out of the hearing of the jury:)

MR. FORD: Your Honor, at this time we would like to object to Charlie bringing out no statements were made, which would seem to indicate to the jury that if he had been innocent he would have made some statement, it has no place in this.

THE COURT: Your objection is sustained, and the Prosecuting Attorney is instructed not to elicit that information from any other witness.

MR. FORD: And that the jury be— first, Your Honor, we’d like at this time to ask the Court to declare a mistrial because it’s highly prejudicial to come before this jury-

THE COURT: That motion is overruled.

MR. FORD: And the jury be instructed to disregard any such matter.

(The following proceedings were had in the presence and hearing of the jury:)

THE COURT: The jury is instructed to disregard the last question asked of this witness and the last answer given. You may proceed, Mr. Baker.”

Defendant’s third point is a valid one and the trial episode on which it is predicated requires reversal and remand. Defendant was under arrest during the period Officer Elliott was describing.

In State v. Stuart, 456 S.W.2d 19 (Mo. banc 1970), the following language appears at page 22:

“The law is established in this state that the silence of an accused while under arrest is not admissible against him because he is under no duty to speak. State v. Vainikos, Mo., 366 S.W.2d 423, State v. Dowling, 348 Mo. 589, 154 S.W.2d 749; State v. Phelps, Mo., 384 S.W.2d 616. The cases in which this rule of law has been applied are cases where the accused was asked about the alleged crime or where someone made a statement about the alleged crime in the presence of the accused. See: State v. Battles, 357 Mo. 1223, 212 S.W.2d 753, 757[10], In the instant case no question was asked of the defendant or statement made in his presence. Here, by his silence, he failed merely to deny or explain his possession of the property by claiming it as his own when he had an opportunity to do so while under arrest. We now hold that an accused’s failure to volunteer an exculpatory statement is not admissible as an admission; that it may not be shown that by his silence he failed to deny or explain while under arrest an incriminating fact as to which no question was asked. See: 22A C.J.S. Criminal Law § 734(1)a, p. 1072. The admission of such evidence constitutes an invasion of an accused’s constitutional rights. State v. Battles, supra, 357 Mo. 1223, 212 S.W.2d at 757[9].” (Emphasis added.)

In Stuart the Supreme Court reversed and remanded even though the assignment of error was not properly preserved at the trial or in Stuart’s motion for new trial. Thus this court need not inquire into the timeliness of counsel’s objection in the case at bar. Had there been no objection, the result would be the same.

The trial court’s instruction to the jury, “to disregard the last question asked of this witness and the last answer given,” was not a sufficient antidote for the damaging evidence improperly injected. State v. Hancock, 451 S.W.2d 6, 9[3] (Mo.1970); State v. Fenton, 499 S.W.2d 813, 816(8) (Mo.App.1973); State v. Fulkerson, 331 S.W.2d 565, 570[1] (Mo.1960); State v. Gray, 503 S.W.2d 457, 463[8] (Mo.App.1973). The court should have declared a mistrial.

The judgment is reversed and the cause remanded.

All of the Judges concur.

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


author: CULLEN, Commissioner.

text:
    Vesta VIA, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 21, 1975.
    As Modified on Denial of Rehearing June 6, 1975.
    Anthony M. Wilhoit, Public Defender, Joe A. Jarrell, Asst. Public Defender, Frankfort, for appellant.
    Ed W. Hancock, Atty. Gen., Douglas E. Johnson, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

On February 22, 1974, Vesta Via shot and killed her husband. On June 19, 1974, she was tried on a murder indictment and was convicted of voluntary manslaughter. Judgment was entered the next day, sentencing her to a term of five years’ imprisonment, pursuant to the verdict of conviction. Appealing from that judgment, Vesta’s primary contention is that she was denied due process of law by reason of the trial court’s failure to conduct an eviden-tiary hearing as to whether she was mentally competent to stand trial.

The record discloses the following with respect to the question of Vesta’s mental competence to stand trial:

1. An order of March 25, 1974, continuing the case “for arraignment,” on motion of the Commonwealth, “as defendant is presently in Eastern State Hospital as a mental patient,” the continuance to be “until such time as defendant is released by the doctors at Eastern State Hospital.”
2. An order of April 18, 1974, reciting that the court had been “informed the staff of Eastern State Hospital is ready to release said defendant as competent,” and directing the sheriff to receive the defendant from the hospital and place her in jail.
3. An order of May 16, 1974 (approximately one month before the trial), based on “motion of counsel for defendant orally made in open court,” directing that the “defendant be committed to the Central State Hospital in Louisville for a period of 20 days for the purpose of examination of her competency to stand trial and for treatment.”
4. Testimony on the trial, by a psychiatrist, that on February 25, 1974 (three days after the homicide was committed), he was called by the county at-attorney to come to the courthouse, where Vesta was behaving in a bizarre and agressive manner; he found her to be suffering at that time from an acute psychotic reaction, possibly schizophrenia, and in the need of active psychiatric treatment; she was extremely agitated; she thought the psychiatrist “was one of the group who had been trying to kill her,” and she said he “would attempt to stab her in the back;” she was not in present reality; he was informed that she had been hospitalized for mental treatment on four previous occasions. The “judge” (unidentified) was present when the psychiatrist came to his office and observed Vesta’s conduct and condition.

It will be observed that all of the matter shown by the record points toward Vesta’s lack of mental capacity, except for the single recitation in the order of April 18 that the court had been “informed the staff of Eastern State Hospital is ready to release said defendant as competent.” That recitation does not indicate the source of the information or the extent of competency found to exist. Furthermore, that order was followed one month later by another order committing Vesta to Central State Hospital for further examination with express reference to her competency to stand trial.

RCr 8.06 provides:

“If upon arraignment or during the proceedings there are reasonable grounds to believe the defendant is insane, the proceedings shall be postponed and the issue of sanity determined as provided by law. * * * ”

This court had held that if there are reasonable grounds to believe the defendant is insane, a hearing is required under this rule. Matthews v. Commonwealth, Ky., 468 S.W.2d 313; Commonwealth v. Strickland, Ky., 375 S.W.2d 701. And the Supreme Court of the United States has indicated that the hearing must be an evi-dentiary one conforming with due process requirements. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815; Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (decided February 19, 1975). The Supreme Court cases speak in terms of a hearing’s being required when there is sufficient doubt of the defendant’s competency as to require further inquiry, which does not differ materially from our requirement based on the existence of reasonable grounds to believe the defendant is insane.

In Matthews, supra, we said that the reasonable grounds must be called to the attention of the trial court by the defendant or must be so obvious that the trial court cannot fail to be aware of them, in which latter case a motion for a hearing on mental capacity is not required. In Pate, the Supreme Court similarly held that if the facts known to the trial court raise a substantial doubt of the defendant’s mental capacity, the failure of the defendant to move for a hearing will not constitute a waiver of the constitutional right to a hearing.

From the record in the instant case we think the existence of reasonable grounds to believe Vesta was not mentally competent to stand trial had to be obvious to the trial court, which fact required that an evidentiary hearing be held. If there were facts in existence tending to establish Vesta’s mental competency they are not in the record, and even if they were in the record the rule would seem to be, under Pate and Drope, that the fact that they might warrant a finding of mental capacity would not eliminate the necessity of a hearing.

It is our conclusion that the trial court erred in not holding an evidentiary hearing on the question of Vesta’s mental capacity to stand trial. The error, under Pate and Drope, requires that a new trial be granted. Whether a hearing will be required to determine Vesta’s mental capacity to stand a new trial will depend upon whether reasonable grounds are shown to continue to exist for belief of her lack of such mental capacity.

It is true that in Mullins v. Commonwealth, Ky., 454 S.W.2d 689, Matthews v. Commonwealth, Ky., 468 S.W.2d 313, and Dye v. Commonwealth, Ky., 477 S.W.2d 805, this court found no error in the denial of a hearing with respect to the defendant’s mental capacity to stand trial, but in those cases there either was no evidence in the record of lack of the required capacity, or the evidence of the existence of the capacity was so strong as not to leave a reasonable doubt of the capacity.

The appellant raises another ground of error which it is not necessary for us to consider because the circumstances will not reoccur on another trial.

The judgment is reversed with directions for further proceedings in conformity with this opinion.

All concur.

      . It was held in Strickland that a jury inquest is not required for this determination.


author: VANCE, Commissioner.

text:
    James R. YOCOM, Commissioner of Labor, etc., Appellant, v. TRI-COUNTY SANITATION SERVICE, INC., et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 31, 1975.
    Rehearing Denied June 6, 1975.

      Murvel E. Combs, Lexington, Robert D. Hawkins, Dept, of Labor, Special Fund, Frankfort, for appellant.
    J. Keller Whitaker, Workmen’s Compensation Board, Dept, of Labor, Frankfort, William E. Hensley, Corbin, Charles E. Palmer, Jr., Harbison, Kessinger, Lisle & Bush, Lexington, for appellees.
   VANCE, Commissioner.

This is an appeal from a judgment of the Knox Circuit Court which awards compensation to the appellee, Hazel Thomas, hereinafter referred to as claimant, for total disability for so long as the disability continues (within statutory limits) and which apportions one-hundred percent of the liability to the Special Fund upon the theory that the entire disability was caused by the arousal of a preexisting dormant non-disabling disease condition into disabling reality.

The claimant sustained a back injury during the course of her employment as a result of a motor-vehicle accident. Medical testimony indicates that she is in a totally disabling depressive state due to a combination of factors including (1) the rigors of her socio-economic status, (2) the death of her mother and husband, (3) the subject motor-vehicle accident.

Although she appears to have fully recovered from the injuries received in the accident and those injuries are no longer disabling physically, she remains in a disabling depressive state.

The Workmen’s Compensation Board awarded claimant compensation for total disability to be paid by her employer and dismissed the Special Fund as a party.

On petition for review the Knox Circuit Court entered judgment remanding the case to the board and directed that some apportionment of the award be made between the employer and the Special Fund. The Special Fund did not appeal from that judgment.

Following the mandate of the Knox Circuit Court the board reconsidered the case and made an apportionment of sixty percent to the employer and forty percent to the Special Fund. The Special Fund did not petition for review but the employer again petitioned for a review of that part of the award which apportioned sixty percent of the liability to it.

The circuit court then entered a judgment assessing the entire liability against the Special Fund and the Special Fund now appeals.

We have repeatedly held that a low threshold emotional breaking point, although it may constitute a personality defect, is not a disease condition within the meaning of KRS 342.120(1)(b). Holland v. Childers Coal Co., Ky., 384 S.W.2d 293 (1964); City of Pikeville v. Maynard, Ky., 428 S.W.2d 202 (1968); Merit Clothing Co. v. Jewell, Ky., 459 S.W.2d 88 (1970); Cabe v. Olin Mathieson Chemical Corp., Ky., 412 S.W.2d 250 (1967).

Although there was some medical testimony that claimant suffered from a dormant, non-disabling psychiatric disease, other medical testimony characterized her difficulties in terms of “emotional instability.” We conclude that the Board was justified in making no apportionment in the original order under the authority of Holland v. Childers, supra; City of Pikeville v. Maynard, supra; and Merit Clothing Co. v. Jewell, supra.

Be that as it may, the Special Fund did not appeal from, and thereby became bound by, the judgment of the Knox Circuit Court which directed an apportionment. Likewise the Special Fund failed to seek judicial review of the subsequent order of the board which apportioned forty percent of the liability to it. It is now too late for the Special Fund to seek to escape liability for forty percent of the award.

The employer takes the position that the Special Fund does not raise as an issue its liability for the remaining sixty percent of the award.

In truth appellant’s statement of issues completely omits a specific claim that the court erred in assessing all of the liability against the Special Fund.

The Special Fund does argue however that the claimant did not suffer from a preexisting dormant non-disabling disease condition and that it should not be liable for payment of even forty percent of the award. This seems to us to raise the issue in a roundabout way of the liability of the Special Fund for the other sixty percent of the award.

The evidence in the record is not such as to compel a different apportionment from that made by the board. There was evidence that a contributing factor to-v ards claimant’s depressive state was the death of her husband subsequent to her accident. The evidence does not compel the conclusion that claimant’s currently depressed state is entirely due to the motor vehicle accident nor can it be said that the findings of the board are not supported by evidence of substance. It was error therefore to set aside the findings of the board.

The judgment is reversed with directions that a new judgment be entered affirming the award of the board which apportioned liability forty percent to the Special Fund and sixty percent to the employer.

All concur.


author: JONES, Justice.

text:
    Preston REAMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 7, 1975.
    Rehearing Denied June 6, 1975.
    Anthony M. Wilhoit, Public Defender, Timothy T. Riddell, Asst. Public Defender, Frankfort, for appellant.
    Ed W. Hancock, Atty. Gen., William W. Pollard, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

Preston R. Reams appeals from the judgment of the Rockcastle Circuit Court in which his application to vacate a judgment of conviction was denied without an evidentiary hearing.

Reams urges that this court should reverse that ruling because he was not represented by counsel when the sentence was imposed.

In March 1952, Reams pled guilty to a charge of willful murder. A jury was impaneled, and fixed Reams’ punishment at life imprisonment.

This is Reams’ third RCr 11.42 motion to vacate the judgment. In his first motion, Reams alleged he was not represented by counsel. The trial court overruled that motion because the record reveals that he was represented by Wiggins and Wiggins of Richmond, Kentucky.

In his second motion, Reams admitted that he was represented by Wiggins and Wiggins. In that motion, Reams contended that his attorneys coerced the guilty plea. He did not allege in what manner or form such coercion was made. That motion was overruled without a hearing. This court affirmed the action of the trial court.

On this appeal Reams relies on Oliver v. Cowan, 487 F.2d 895 (6th Circuit) 1973, which declared final sentencing in Kentucky a critical stage of the proceeding which required the assistance of counsel.

The Commonwealth concedes error on the part of the trial court in overruling the motion to vacate. This court does not agree with that concession. It is the court’s opinion that it is not bound by Oliver and does not accept the principles enunciated therein as sound in the absence of a showing of prejudice. To set aside a judgment upon such a technical ground without even an allegation that the defendant had a reason why it ■ should not have been pronounced would, it seems to us, be absurd. In any event this court is of the opinion that this case is distinguishable from Oliver. The record in Oliver showed affirmatively that no attorney was present when he was sentenced. In this case, the record is silent and there is only Reams’ allegation that counsel was not present at sentencing. In view of Reams’ prior false admissions, the courts are not required to place any reliance on any assertion he makes. When a judgment of conviction stands unchallenged for more than 20 years, an allegation of a failure to meet due process requirements should be required to carry strong indications of credibility in order to warrant an evidentiary hearing.

This court finds no prejudicial error by the trial court in overruling the motion to vacate the judgment without an evidentiary hearing.

The judgment is affirmed.

All concur.