author: STEPHENSON, Justice.

text:
    The HOME INSURANCE COMPANY, Appellant, v. Randall HARDIN, Administrator of the Estate of Will Hardin, Deceased, Appellee.
    Court of Appeals of Kentucky.
    June 20, 1975.

      Wesley P. Adams, Jr., Ogden, Robertson & Marshall, Louisville, for appellant.
    John S. Kelley, Fulton, Hubbard & Kelley, Bardstown, for appellee.
   STEPHENSON, Justice.

The sole question on this appeal is whether a fraudulent attempt to obtain the face amount of an insurance policy on nonexistent household furnishings and contents invalidates the policy as to the dwelling. We are of the opinion that it does.

The appellant issued a standard fire insurance policy to Will Hardin insuring a dwelling for the sum of $5,000. In the same policy, appellant insured the household furnishings and contents for the sum of $3,000. After the dwelling was destroyed by fire, Will Hardin made a claim on the policy by sworn proof of loss listing numerous household furnishings exceeding in value the face amount of the policy. The first statement taken by the appellant’s adjuster contained a list of household furnishings lost in the dwelling consisting of some eight or nine items and miscellaneous items not valued. When informed that the claim could not be considered until a detailed list was submitted, Hardin employed an attorney and submitted a sworn proof of loss. This document contained a list of over one hundred items with a value totalling $3,050. Later a proof of loss on forms furnished by appellant was forwarded to appellant, sworn to by Hardin and with the same list of household goods attached as was furnished and sworn to previously. It is not disputed that shortly before the fire, Hardin purchased another home and moved the household contents to the newly purchased home and that the dwelling destroyed by fire contained very few items of household furnishings of no significant value. Subsequently Hardin died, and his administrator, the appellee here, notified the appellant that he had abandoned his claim to the loss of household furnishings and contents in the dwelling. The appellant denied the entire claim, and the appellee filed suit in the Nelson Circuit Court seeking to recover on the policy for the stated value of the dwelling. The appellant by counterclaim sought recovery of $641.70 for payment of the balance due on a mortgage on this property.

The trial court overruled appellant’s motion for summary judgment and sustained appellee’s motion for summary judgment. We reverse.

The policy of insurance contains the following provision:

“Concealment, fraud. This entire policy shall be void if, whether before or after a loss, the insured has willfully concealed or misrepresented any material fact or circumstance, concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.”

We do not find any cases in this jurisdiction directly in point. Our attention is directed to World Fire & Marine Ins. Co. v. Tapp, 279 Ky. 423, 130 S.W.2d 848 (1939). There the insurance policy provided as does the appellant’s policy as to concealment and fraud. This court in construing the provision recited the general rule at page 849 as follows:

“The provision is common to most fire insurance policies and is uniformly held valid so that it will defeat a recovery under the contract if false statements in proof of loss were intentionally made and disclose a purpose to fraudulently overvalue the property or include non-existent items.”

Hanover Fire Ins. Co. v. Coffman, 218 Ky. 568, 291 S.W. 725 (1927), is cited, which states at page 726:

“Before a false statement under oath in proof of loss will vitiate a policy of insurance, such statements must be intentionally false, and disclose a purpose to fraudulently overvalue, or contain a statement of items having no existence.”

Both of these cases were defended on the grounds of fraud and misrepresentation in the proof of loss with respect to quantity and value. We conclude that the provisions of the insurance policy as to concealment and fraud are applicable here and that a sworn proof of loss which includes numerous nonexistent items voids the entire policy as a matter of law.

The appellee argues that his claim for recovery for total loss on the dwelling is controlled by KRS 304.905, which provides as follows:

“ * * * Except as provided in KRS 304.906, insurers that take fire or storm risks on real property in this state shall, in case of total loss thereof by fire or storm, be liable for the full estimated value of the property insured, as the value thereof is fixed on the face of the policy, except that the estimated value of the property insured may be diminished to the extent of any depreciation in the value of the property occurring between the date of the policy and the loss. In case of partial loss of the property insured, the liability of the insurer shall not exceed the actual loss of the party insured. The insured shall be liable for any fraud he may practice in fixing the value of the property, if the insurer is misled thereby.”

Appellee argues that this statute controls the controversy and that alleged fraud concerning the personal property does not affect the recovery on the dwelling. He further argues that the appellant knew that very few items of personalty were lost in the fire and that the appellant was not deceived or misled by the sworn proof of loss.

We construe KRS 304.905 as applying only to recovery of the stated value of the realty described in the insurance policy. It has no application to personalty; nor does it abrogate the provision against “Concealment, fraud” in the insurance policy issued here.

The statute fixes the liability of the insurer for the value of the real property as stated on the face of the policy. World Fire & Marine Ins. Co. v. Rivard, 256 Ky. 457, 76 S.W.2d 264 (1934). The provision as to fraud goes to overvaluation of the real property if the insurer is misled. Here again this provision of the statute is applicable only to the realty and not to personalty-

We see little distinction between fraud in overvaluing personalty lost in a fire and fraud in claiming numerous nonexistent items. Hanover Fire Ins. Co. v. Coffman, supra, and World Fire & Marine Ins. Co. v. Rivard, supra. If there is a distinction, it would go to the manner of proving fraudulent intent in overvaluation. We are of the opinion that claiming numerous nonexisting items in a sworn proof of loss is fraud as a matter of law and, in accordance with the terms of the policy, defeats recovery on the entire policy. The fact that the insurer may have known that only a few items were destroyed in the fire cannot be taken advantage of by the individual who perpetrates the fraudulent act.

The judgment is reversed with direction to enter a judgment for the appellant.

All concur.

      . KRS 304.905 was later repealed by the 1970 General Assembly.


source: Caselaw Access Project

author: VANCE, Commissioner.

license: Public Domain

text:
    Melvin MANLEY and Elmira Manley, his wife, Appellants, v. The CITY OF MAYSVILLE, a Municipal Corporation, et al., Appellees.
    Court of Appeals of Kentucky.
    June 27, 1975.
    Rehearing Denied Sept. 19, 1975.
    Bernard Coughlin Hargett, Maysville, for appellants.
    John W. McNeill, A. V. Fox, Fox, Wood & Wood, Maysville, for appellees.
   VANCE, Commissioner.

This is an appeal from a judgment upholding a zoning ordinance of the City of Maysville, Kentucky, which changes the zone classification of a one-quarter block area from residential to business usage. We reverse.

In the City of Maysville there is a small residential area bounded on the north, west and south by railroad tracks and spur lines and on the east by Lexington Street. This area contains eighty-six structures of which eighty-three are residential. The three nonresidential structures are: a small motel, a warehouse and the Forest Avenue School. In 1961 the area was zoned for residential purposes. The motel, warehouse and school were then in existence. The school property occupies approximately one-fourth of one block at the corner of Poplar Street and Forest Avenue.

The Maysville Independent School District closed the Forest Avenue School and sold the property at auction to Frank Carri-gan and his wife, Barbara, upon condition that the purchase price be refunded if the purchasers could not secure an amendment of the zoning ordinance to permit business usage of the property. Following application for a map amendment to the zoning ordinance for this one-fourth block, the planning commission held a public hearing and recommended that the application be denied. The city council did not hold any additional public hearings but considered the evidence that was introduced at the hearing before the planning commission.

The city council made the following findings of fact:

“(4) The original zoning of the involved area under the comprehensive plan was inappropriate in view of the fact that, at the time such classifications were imposed upon this block and in this neighborhood, there existed a motel of six to eight units, a large tobacco warehouse which occupies nearly one-eighth of a city block; a major trunk of the Louisville & Nashville Railroad and the major east-west line of the Chesapeake & Ohio Railroad;
“(5) The abandonment of the school property, which constitutes one-quarter of a city block, was a material change of an economic and social nature which could not have been foreseen or anticipated by the comprehensive plan and which has substantially altered the character of the neighborhood;
“(6) The area sought to be rezoned is tangential to and touches upon an area which was rezoned in 1968 from residential to light industrial (R-3 to I — 1), that the said area is bounded on the north by the Chesapeake & Ohio Railroad, on the West by Poplar Street, on the North by Strawberry Alley and the area sought to be rezoned and on the East by Lexington Street.
“(7) That within a two-block radius of the site for which a change in zoning classification is sought, there exists presently:
(a) two filling stations,
(b) six tobacco warehouses, one of which is the largest tobacco warehouse in the Commonwealth of Kentucky on one level;
(c) a grocery store
(d) a carry-out prepared food dispensary,
(e) a medical clinic
(f) an electrical utility sub-station serving a major part of East Maysville,
(g) a bulk oil and gasoline distributorship,
(h) a concrete block manufacturing installation,
(i) a pre-cast concrete form manufacturing installation,
(j) a skating roller-rink, and
(k) the motel and railroads mentioned in finding Number 4.
“(8) That the building which has in the past housed the school which is now abandoned is inappropriate for residential purposes and that its only feasible and economically practicable use is commercial.
“(9) That the best interest of the community will be served by granting a rezoning of the property in question and that the rezoning will not materially affect any of the adjacent property owners in the area.
“(10) That the change sought is in conformance with the original zoning master plan adopted by the City of Maysville;”

The city council granted the zone change. Upon appeal to circuit court the action of the city council was upheld.

When a city legislative body makes a zoning change, it must make a finding of adjudicative facts necessary to support the change. These findings must be made from (and supported by) the evidence heard by the Planning Commission or from evidence heard by the city legislative body if it elects to hold a separate trial-type hearing. City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971); Montfort v. Archer, Ky., 477 S.W.2d 144 (1971), and Hines v. Pinchback-Halloran Volkswagen, Inc., Ky., 513 S.W.2d 492 (1974).

The evidence heard in no way supports the findings of the city legislative body. At the time of the original zoning the area involved was almost exclusively residential. It was buffered by natural boundaries. The evidence showed that the dwellings within the area, though old, were among the best kept and maintained in the city and photographs in the record corroborate that fact. The fact that the area contained a small motel, a warehouse and a school and that numerous businesses were located in an adjacent zoning area is not sufficient evidence to support a finding that the original zoning was inappropriate. Even if it were true that the entire area was zoned inappropriately to begin with the change sought here for this one-fourth of block would do little to correct the situation.

As we pointed out in City of Louisville v. Kavanaugh, Ky., 495 S.W.2d 502 (1973), the purpose of KRS 100.213 is to require zoning to conform to the basic scheme of prior planning and to prohibit indiscriminate, piecemeal attempts to rezone.

Although the abandonment of the school might be considered a major change in the area which was not anticipated at the time of the original zoning, it must be noted that the school was one of only three nonresidential uses in the area. Its abandonment reduces the number of nonresidential uses, thereby making it proportionately more residential in character than before. The basic character of this area has not been altered. It remains today, as it was when originally zoned, overwhelmingly residential.

The finding that the change sought is in conformance with the original zoning master plan is the finding of an ultimate fact. We held such a finding inadequate in Caller v. Ison, Ky., 508 S.W.2d 776 (1974). No evidence supports the finding. On its face a change to business use for a one-quarter block area in a residential zone is not in conformity with a master plan which designates residential usage of the area.

The judgment is reversed with direction to enter a new judgment declaring the amendment to the zoning ordinance invalid and of no effect.

All concur.


author: STERNBERG, Justice.

text:
    Lawrence C. JENKINS et al., Appellants, v. CITY OF LEXINGTON, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    Aug. 1, 1975.
    Rehearing Denied Oct. 17, 1975.
    Leer Buckley, Lexington, for appellants.
    Donald D. Waggener, Asst. Corp. Counsel, Lexington, for appellees.
   STERNBERG, Justice.

This is an appeal from a Fayette Circuit Court order dismissing a petition for an injunction, pursuant to KRS 80.700, prohibiting the enforcement of an order of the Lexington Housing Board of Appeals. The Housing Board had ordered the demolition of a structure owned by the appellants at 156 North Eastern Avenue, Lexington, Kentucky, because the structure was unfit for human habitation, occupancy, or use.

Appellants filed a petition for injunctive relief in the Fayette Circuit Court on June 23,1972, and appellees’ answer was filed on August 2, 1972. No further action was taken until May 23, 1974, when appellee City of Lexington filed a motion to dismiss the case for failure of the appellants to prosecute. An order, signed by counsel for both appellants and appellees, scheduled a hearing on July 3, 1974, on this motion. Counsel for appellants failed to appear at the hearing.

On July 7, 1974, the trial judge rendered an opinion and on July 25, 1974, an order dismissing the action was entered. The appellants are appealing from the dismissal.

CR 41.02(1) provides:

“For failure of the plaintiff to prosecute or to comply with these Rules or any order of the court, a defendant may move for dismissal of an action or of any claim against him.”

Clay, Ky. Practice, 3rd Ed., Civil Rule 41.02, Comment 3, points out:

“ * * * What would constitute such failure to prosecute as to warrant a dismissal must be determined by the circumstances of each particular case. Unreasonable delay which harasses the defendant is obviously an important consideration. Such unreasonable delay could result from failure of the plaintiff to take any steps after filing his complaint, or failure to attend a pretrial hearing, or failure to be ready for trial. The matter is within the discretion of the court, and a reasonable excuse for delay or failure to prosecute would justify a refusal to dismiss.” (Emphasis added)

Thus, the sole question in this appeal is whether the circuit court abused its discretion in dismissing the action for failure to prosecute. After filing their complaint, appellants remained inactive in the case for over two years. Then, on July 3, 1974, counsel for appellants failed to attend a pretrial hearing on the motion to dismiss. These two factors are an adequate basis for the trial judge’s discretionary decision to dismiss. See Clay, Ky.Prac., 3rd Ed., CR 41.02, Comment 3; Modern Heating and Supply Co. v. Ohio Bank Building and Equipment Company, Ky., 451 S.W.2d 401; Gill v. Gill, Ky., 455 S.W.2d 545.

Appellants argue that a permanent injunction was issued in a prior action (No. 20073) between the parties involving the same property. It is contended that this permanent injunction in the prior action (No. 20073) justified the failure to prosecute this action (No. 33516).

First, it should be noted that appellants have misinterpreted the nature of the injunction in the prior action. The final order entered on November 23, 1971, agreed to by counsel for appellants, states:

“By agreement of the parties the judgment entered herein on November 19, 1971, is amended striking therefrom the provision making the injunction permanent.” (Emphasis added)

Second, the prior action was based on conditions found in the structure prior to January 18, 1967, while the instant action is based on different conditions existing in the structure before January 27, 1972. KRS 80.700 provides injunctive relief against only the condemnation order under review in the case before the court. The statute does not provide for an injunction against an order which may be issued in subsequent proceedings. Therefore, the injunction in the prior case has no bearing on the instant case.

Appellants’ remaining arguments are addressed to the merits of their claim and not to the issue before this court on appeal. Since these arguments are not relevant, they will not be given further treatment.

The trial court did not abuse its discretion in dismissing the action for failure to prosecute.

The judgment of the Fayette Circuit Court is affirmed.

All concur.


author: JONES, Justice.

text:
    HICKMAN COUNTY FISCAL COURT, etc., et al., Appellants, v. Wilson WORKMAN and Randall Mullins, Appellees.
    Court of Appeals of Kentucky.
    Sept. 5, 1975.

      H. W. Roberts, Jr., Clinton, for appellants.
    Joseph W. Bolin, Clinton, for appellees.
   JONES, Justice.

This action contests the authority of the Hickman Fiscal Court to place on the ballot the question of whether the voters favor the consolidation of certain schools in Hickman County. At the request of the Hickman County Board of Education the fiscal court ordered the election held. An appeal from that order was taken by the appellants, taxpayers to the Hickman Circuit Court. The trial court set aside the order and directed the county court clerk not to place the question on the ballot. This is an appeal from that judgment.

The trial court made detailed findings of fact and conclusions of law. With specificity he determined that any matters affecting the schools and their management were vested in the local board of education and the state department of education. A school board cannot delegate or shift its responsibilities either to the fiscal court or to the electorate in matters relating to the consolidation or merger of school districts. KRS 160.040 through KRS 160.065, KRS 160.010, and KRS 160.290 vest in the school board and the state department of education the authority to consolidate schools as may be necessary and practical.

The judgment is affirmed.

All concur.


author: GARDNER, Commissioner.

text:
    Elsie Fuson SHOUP and Martha Sutton, Appellants, v. John KETRON and Ortha Parker, Appellees.
    Court of Appeals of Kentucky.
    Oct. 17, 1975.

      W. Thomas Mulhall, Jr., G. Murray Turner, Louisville, for appellants.
    Terry E. Forcht, Forcht, Braden & Bra-den, Corbin, for appellees.
   GARDNER, Commissioner.

The contestants of a will contend that the circuit court erred when it overruled contestants’ motion for a directed verdict on the ground that the propounders did not prove the proper execution of the will in that they failed to present available subscribing witnesses at the trial. The subscribing witnesses, although available, were not used in the circuit court trial to prove the execution of the will. The propounders of the will did introduce the scrivener of the will who testified that he was present when the testatrix and the subscribing witnesses signed the will, and his testimony showed that the will was properly executed. One of the issues, included in the pretrial order, was whether the will was properly executed.

It has been said that on appeal to the circuit court the case is tried de novo. Duncan v. O’Nan, Ky., 451 S.W.2d 626 (1970); Speshiots v. Coclanes, 311 Ky. 547, 224 S.W.2d 653 (1949). Ramsey v. Howard, 289 Ky. 389, 158 S.W.2d 981 (1952), contains an interesting statement of the procedure for adjudication of questions involving a will, beginning with the ancient mode where the will was first probated “in the common form,” an ex parte proceeding to prevent injurious delay to creditors and others, and was binding until contested (within 30 years) in a more effectual mode called the “solemn form.” In the “solemn form” proceedings the previous probate was waived and it was required that the will be established as if it never had been recorded. The opinion also traces the history of the procedure as provided in the Acts of the Kentucky Legislature in 1797 and 1851. It appears there have been only a few changes since those legislative enactments. It has been held that the propounder has the burden of proof as to the authenticity and due execution of the will. Poindexter’s Adm’r v. Alexander, 277 Ky. 147, 125 S.W.2d 981 (1939); Lowrance v. Moreland, 310 Ky. 533, 221 S.W.2d 62 (1949), It also has been held that the contestant may attack the execution of the will on appeal although he did not allege improper execution as a ground when perfecting the appeal. Lisle v. Couchman, 146 Ky. 345, 142 S.W. 1023 (1912); Poindexter’s Adm’r v. Alexander, 277 Ky. 147, 125 S.W.2d 981 (1939).

The statutes and the opinions of this court do not delineate the proof necessary on appeal to the circuit court for establishing the execution of a will. While the trial in the circuit court has been described as one “de novo,” it is not a completely new trial. The county court has exclusive jurisdiction of the probate of wills. KRS 394.-140. KRS 394.260, in setting forth the “Proceedings in circuit court,” provides that a jury (or the court) shall “ * * * try whether, or how much of, any testamentary paper produced is, or is not, the last will of the testator.” The circuit court has no power to order the probate of a will other than one probated or rejected by the county court and therefore may consider on appeal only the question of whether the will probated or rejected by the county court was the will of the testator. Central Trust Co. v. Bennett, 208 Ky. 281, 270 S.W. 821 (1925).

In the present instance the pro-pounders of the will produced a copy of the will and a copy of the order of the county court admitting the will to probate which recited that the will was proven by one of the subscribing witnesses who also attested to the subscription by the other witness. If it be construed that the provision of KRS 394.210(3), to the effect that a will may be proved by the testimony of one of the witnesses, applies to proceedings in the circuit court as well as in the probate court, we are of the opinion that it does not constitute an indispensable requirement for the proof, in circuit court, of the execution of the will. We are of the further opinion that the introduction of a copy of the order of the county court reciting that one of the subscribing witnesses proved the execution of the will was sufficient, in the absence of countervailing evidence, to support a finding that the will had been properly executed.

The judgment is affirmed.

REED, C. J., and CLAYTON, PAL-MORE, STEPHENSON, LUKOWSKY and STERNBERG, JJ., concur.

JONES, J., not sitting.


text:
    Warren B. MILLER, Appellant, v. Will Tom WATHEN, Appellee.
    Court of Appeals of Kentucky.
    Oct. 17, 1975.
    Carroll W. Morrow, Moore, Morrow & Frymire, Madisonville, Tommy W. Chandler, Providence, William E. Mitchell, Miller & Mitchell, Dixon, for appellant.
    William S. Greenwell, Westberry & Roberts, Marion, George L. Drury, II, Tom D. Harris, J. Quentin Wesley, Ruark & Hu-lette, Morganfield, for appellee. ,
   STEPHENSON, Justice.

This contest case arises out of the Democratic primary election for the office of. circuit judge of the 5th judicial district. A total of 5,021 votes were cast for the office of circuit judge. Will Tom Wathen received 2,516 yotes and Warren B. Miller received 2,505 votes, a majority of 11 votes for Wathen. The trial court granted a judgment dismissing the contest suit filed by Miller. We affirm.

The contest suit filed by Miller centers on precinct # 5 in Union County. In this precinct, 339 votes were cast. A total of 150 votes were cast for the office of circuit judge. Wathen received 105 votes; Miller received 45 votes.

The contest suit by Miller set out 206 names of Job Corps trainees, all of whom Miller alleged were illegal voters and that they cast their votes for Wathen. Further that because of the number of alleged illegal votes, the entire precinct should be excluded from the election.

We do not reach the question of whether the Job Corps trainees were legal residents of Union County for the reason that Watts v. Fugate, Ky., 442 S.W.2d 569 (1969), and Upton v. Knuckles, Ky., 470 S.W.2d 822 (1971), are dispositive of the issues in this case. The proof discloses that twenty-one of the Job Corps trainees voted in the Republican primary. Of the remainder, the proof shows that only six remembered the candidate for whom they voted in the circuit judge’s race. The other individuals either did not remember if they voted in the circuit judge’s race at all or did not remember for whom they voted. The six trainees who remembered declined to answer for whom they voted on advice of counsel. These questions were certified to the trial court; later two of the certifications were withdrawn leaving four. The trial court determined that it was unnecessary to require answers since four votes would not affect the outcome of the election; thus, Miller failed to sustain the burden of proving that a sufficient number of the alleged illegal voters voted for Wathen so as to affect the outcome of the election. Watts disposes of Miller’s argument that the vote of the entire precinct should be eliminated from the total vote. Waits stands for the proposition that the “20% rule” no longer applies to individual precincts but has reference to 20 percent of the total votes in the entire election in order to invalidate the election as opposed to changing the result of the election. As pointed but in Upton, this rule has no application in determining whether certain votes are in fact illegal, nor in cases where it can be determined for whom the illegal votes were cast (the situation here).

Miller cites the following language from Watts at page 571, in support of his argument that the alleged illegal votes should be deducted from the votes cast in the circuit judge election: ■

“If a contestant cannot prove for whom the illegal votes were cast, and they amount to less than 20% of the total, they are charged against him.1 * * *.
******
“ 1 This rule, however, could only apply to the extent of the number of votes received by the contestant. Obviously, illegal votes in excess of the total number of votes received by the contestant in a precinct would have to be charged against the con-testee.”

This language applied to an illustration in Watts and presupposed a factual situation not applicable to this case. This illustration provides a test by which the contestant can show by mathematical computation that the illegal voters would change the results and show mathematically that the contestee could not be the winner.

Here the number of alleged illegal votes comprised less than 20 percent of the total votes cast in the election for circuit judge. It is not argued here that there was such fraud or impropriety in the conduct of the election in precinct # 5 in Union County as to warrant invalidating the election in that precinct. It is not disputed that there were 134 legal votes cast in the precinct. Miller failed to prove that a sufficient number of the alleged illegal voters voted for Wathen to change the results of the election.

The judgment is affirmed.

REED, C. J., and CLAYTON, JONES, LUKOWSKY, STERNBERG and STEPHENSON, JJ., sitting.

All concur.

PALMORE, J., not sitting,


author: PER CURIAM.

text:
    Gary CARGILL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 17, 1975.
    John Tim McCall, Louisville, for appellant.
    Ed W. Hancock, Atty. Gen., James M. Ringo, Asst. Atty. Gen., Frankfort, for ap-pellee.
   PER CURIAM.

Gary Cargill was found guilty of two counts of armed robbery; one count of robbery; and one count of obtaining a Schedule II controlled drug by fraud and deceit. A Jefferson Circuit Court jury fixed his punishment at confinement in the penitentiary for life on each count of armed robbery; ten years for the robbery; and five years for attempting to obtain a controlled substance by fraud and deceit. Cargill was sentenced in accordance with the jury’s verdict. He appeals from each of the judgments of conviction.

Cargill presents two issues to be determined in this appeal. His first contention is that the trial court erred in overruling his motion for a severance. He contends that he should have had separate trials.

His next allegation of error is that the trial court should have directed a verdict on the controlled substance charge because there was no evidence that the drug desox-yn is a Schedule II substance as charged in the indictment.

This court now directs its attention to the first allegation of error. On April 3,1974, a Jefferson County Grand Jury returned an indictment charging Cargill with two counts of armed robbery. The indictment alleged that Cargill robbed Doris Belke on November 2, 1973, and in so doing, used a deadly weapon. The indictment charged under Count 2 that on November 27, 1973, Cargill robbed Glenna Todd, and in doing so, used a deadly weapon.

On May 14, 1974, the Jefferson County Grand Jury indicted Cargill and alleged that on December 5, 1973, he used violence and force in robbing Mary Bunton of her purse which contained the sum of $26.00.

On September 18, 1974, the grand jury returned an indictment charging Cargill with attempting to obtain a controlled substance by fraud and deceit. The indictment alleged that on April 9, 1974, Cargill presented to a pharmacist a prescription for a Schedule II drug known as desoxyn. The prescription bore the forged signature of Dr. Truman Mays.

Following the selection of the jury, Car-gill made a motion for a severance of the counts and requested the Commonwealth to elect which charge was to be tried first. This motion was overruled and the trial proceeded.

It is interesting to note that Cargill admitted the robbery of Mary Bunton. At the trial he also admitted that he forged a blank prescription form. When asked if he knew what the drug was, Cargill stated, “It’s a pill. A speed pill.”

The witnesses for the Commonwealth consisted of the robbery victims, the pharmacist who took the forged prescription, the doctor whose name was forged on the prescription, and the arresting officers involved in the investigation of the robberies and the drug charge.

The evidence as to the guilt of Cargill was compelling. His weak defense was an alibi to the two counts of armed robbery. His mother testified in his behalf but offered no convincing testimony to establish his alibi.

Although there was an abundance of evidence to sustain each of the charges against Cargill, this court is of the opinion that a reversal of the judgment is required because the trial court failed to follow the criminal rules regarding joinder of offenses.

“Two (2) or more offenses may be charged in the same information or two (2) or more offenses whether felonies or misdemeanors, or both, may be charged in the same indictment in a separate count for each offense, if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan.” RCr 6.18.

The rules also provide that,

“The court may order two (2) or more indictments or informations or both to be tried together if the offenses, and the defendants if more than one (1), could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single indictment or information.” RCr 9.12.

Under the rules the three robbery charges could have been included in the same trial since they were similar in character and were closely related in time. There is no connection between the drug charge and the robbery charges so as to warrant a joinder of offenses. Obtaining a controlled substance by deceit is in no way similar to the robbery offenses. The drug charge occurred some four months after the last robbery charge. Therefore, it was improper for the trial court to overrule Cargill’s motion for a separate trial as to the drug charge.

Although Cargill was faced with two charges of armed robbery in one indictment, and one charge of robbery in another indictment, yet the Commonwealth introduced evidence concerning the drug charge first. The drug charge upon which Cargill was convicted is separated from the other offenses charged as far as the east is from the west. A person who is charged with the commission of crimes may not always have a perfect trial, but he is entitled to a fair trial. This court is of the opinion that the offenses were improperly consolidated under RCr 9.12 in that they could not have been properly joined under RCr 6.18. See Davis v. Commonwealth, Ky., 464 S.W.2d 250 (1970).

Prejudice may be inferred from the fact that Cargill received the maximum penalty on the charges of robbery, as well as the drug charge.

Cargill’s second argument that he was entitled to a directed verdict on the drug charge is absolutely without merit.

The judgment is reversed for further proceedings consistent with this opinion.

All concur.


author: HOLMAN, Judge. BARDGETT, Judge

text:
    Judith Ann GAFFNEY, Plaintiff-Respondent, v. James Patrick GAFFNEY, Jr., Defendant-Appellant.
    No. 58871.
    Supreme Court of Missouri, En Banc.
    Sept. 8, 1975.
    Rehearing Denied Oct. 13, 1975.

      Claude T. Wood, Richland, for respondent.
    J. W. Grossenheider, Lebanon, for appellant.
   HOLMAN, Judge.

In this divorce case the trial court entered a judgment in plaintiff’s favor, granting her a decree of divorce, alimony in gross, periodic alimony, custody of two small children, child support and an attorney’s fee. On appeal to the Court of Appeals, Springfield District, the decree dissolving the bonds of matrimony existing between the parties was affirmed. The order granting custody of the children, although limited to some extent, was also affirmed. In all other aspects the decree of the trial court was vacated. Upon application of respondent we ordered the case transferred to this court. It will be finally determined here the same as on original appeal. Art. V, § 10, Mo.Const.

With one exception, we agree with the conclusion of the court of appeals on the issues and will adopt portions of the opinion filed by that court without the use of quotation marks.

The parties were married on July 26, 1969, in Reno, Nevada. Plaintiff, who had been reared in Camden County, Missouri, was then an airline stewardess; defendant was serving in the Air Force as a navigator in the Strategic Air Command. The two established a succession of temporary residences, moving as the defendant’s duty station was changed. Shortly before their separation, the parties lived at Bossier City, Louisiana, approximately five miles from Barksdale Air Force Base, where the defendant was then stationed. They owned a home there.

The marriage was apparently never a happy one, although plaintiff and defendant became the parents of two children, one being born after their separation. Since we shall not consider the action on its merits, it is unnecessary to discuss plaintiff’s grounds for divorce.

Plaintiff left her husband and returned to her parents’ home in Camden County, Missouri, on February 7,1972. Eleven days later she filed a petition for divorce in the Circuit Court of Camden County. To invoke the court’s jurisdiction of the marital status, plaintiff averred in the familiar language of former § 452.050, RSMo 1969, V.A.M.S., that she was a resident of Camden County, Missouri, and had been a resident of the state for more than one whole year next before the filing of her petition. Seeking further to vest the court with jurisdiction of defendant’s person, plaintiff sought and obtained service of summons and a copy of her petition upon defendant under former Rule 54.07, which authorized the rendition of general (in personam) judgments against persons domiciled in this state at the time of1 commencement of the action or at the time of service, upon service of process outside the state by an officer authorized to serve process in the state or territory where service was had. It was and is conceded that the defendant was served with a copy of the writ of summons and copy of the petition, as provided by former Rule 54.07. Nevertheless, defendant filed a timely motion asserting that no proper service of process was had upon him, and that the court had no jurisdiction of his person. When this motion was denied, defendant answered, pressing the same objection to the jurisdiction of the court.

The action was commenced February 18, 1972. The case was thereafter tried in fits and starts, first on defendant’s motion to dismiss for lack of jurisdiction — denominated a “motion to quash service” — then on his motion to stay proceedings under the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C.A. App. § 521, and finally upon the merits on December 6, 1972, after the stay was denied and defendant’s counsel left the courtroom. A great deal of the slender record before us consists of conversation— or downright argument — between counsel and the trial court. We shall, therefore, forego narration of the particulars of the trial as it progressed.

At the outset of our consideration of the merits of this appeal it should be noted that defendant did not have the same attorney in this court that represented him in the trial court and the court of appeals; and that the position stated by defendant’s attorney in oral argument was somewhat different from that stated in the brief.

Defendant’s first contention is that he was not domiciled in Missouri at the time he was served with summons (or at any other time) and therefore the court had no “in personam” jurisdiction of him and erred in rendering a personal money judgment against him. At the time the case was argued here, defendant’s attorney stated that he was not contesting the issue as to the jurisdiction of the court to grant the divorce and that it was agreeable with defendant for that portion of the decree to be affirmed; he also agreed that the court had jurisdiction to make certain orders relating to the custody of the children.

In view of the foregoing position taken by defendant the decree of divorce will be affirmed. In regard to the custody portion of the decree, it is our view that such also should be affirmed. It has long been the rule in this state that where a plaintiff and child reside in Missouri the court granting a divorce has jurisdiction to award custody of the child even though only constructive service is obtained upon the absent parent. Beckmann v. Beckmann, 358 Mo. 1029, 218 S.W.2d 566 (1949). See also, State ex rel. Stoffey v. La Driere, 273 S.W.2d 776[9] (Mo.App.1954). And such is the general rule as indicated by the following from 24 Am.Jur.2d, Sec. 774, p. 882: “If the plaintiff has a domicil in the divorce state and has actual possession of the children within the divorce state, the divorce court has jurisdiction to award custody to the plaintiff even though the defendant is served constructively.”

The court of appeals opinion, sua sponte, discussed a possible limitation upon the trial court’s jurisdiction to award custody but we do not deem it necessary or advisable to discuss that matter. That point was not included in the briefs and after we granted transfer appellant has not elected to file a supplemental brief in order to raise and develop the question. Appellate review is ordinarily limited under the civil rules to points properly briefed. Rule 84.04(a); School Services of Missouri, Inc. v. Caton, 419 S.W.2d 954[4] (Mo.App.1967); White v. Kuhnert, 207 S.W.2d 839[1] (Mo.App.1948).

The validity of the money judgment portion of the decree is dependent on the domicile of the defendant. He was 28 years of age at trial time, but his domicile of origin is not shown. Relying on In re Toler’s Estate, 325 S.W.2d 755 (Mo.1959), and other authorities, plaintiff sought to show that Missouri was defendant’s domicile of choice. It was established that defendant had designated “Post Office Box 225, Osage Beach, Missouri” as his permanent home while he was in military service; that defendant had paid personal property taxes in Camden County and had registered two automobiles in Missouri. Defendant had discussed going into business with his father-in-law. The plaintiff admitted, nevertheless, that she and her husband had never “lived together” as husband and wife in Missouri; defendant had been in Camden County, on occasion, but only during vacations and once when plaintiff underwent an operation. The defendant had discussed going in business with his father-in-law, but the two did not “discuss exactly when [defendant] could get out [of military service].” Plaintiff herself said she had no idea when her husband would be discharged from the Air Force.

In Toler, supra, 325 S.W.2d at 759[6], and in Trumbull v. Trumbull, 393 S.W.2d 82, 90-91[18] (Mo.App.1965), it was held that to effectuate a change of domicile, presence in the new domicile and the intent to remain there, permanently or indefinitely, must coincide. The general authorities likewise stress the importance of a present intent to regard the new place as a present home. Leflar, American Conflicts Law, § 10, p. 19 (1968) (hereinafter cited as Leflar); 25 Am.Jur.2d Domicil §§ 26, 27 (1966). In this case, plaintiff’s proof is insufficient to establish any such present, fixed intention on the defendant’s part. No doubt defendant’s designation of Osage Beach as a permanent home address, his payment of local taxes and registration of automobiles in Camden County are operative facts having evidentiary value; they are persuasive in favor of a new domicile. Leflar, § 10, p. 20. Note, Evidentiary Factors in the Determination of Domicil, 61 Harv.L.Rev. 1232 (1948). Certainly such acts tend to negate any intention ‘to establish a matrimonial domicile outside Missouri at one of the parties’ temporary residences. Nevertheless, there is no record indication that the defendant was ever in Missouri except for a limited or special purpose, such as vacationing or to be present during a family emergency. Such motives do not demonstrate an intent to change one’s domicile. Texas v. Florida, 306 U.S. 398, 427, 59 S.Ct. 563, 577, 83 L.Ed. 817, 835, 121 A.L.R. 1179, 1195 (1939), In re Pecoraro’s Will, 187 Misc. 693, 64 N.Y.S.2d 414, 417 (1946), Note, supra, 61 Harv.L.Rev. at 1239; and defendant’s tentative, conditional consideration of employment, or a business association, at some indefinite time in the future cannot be taken as proof of a present intent to regard Camden County as a present home. To reiterate, we cannot say where defendant is domiciled. We can say, with reasonable confidence, that he is not domiciled in Missouri.

As stated above, defendant was served under former Rule 54.07 which authorized the rendition of general judgments against persons domiciled in this state at the time of service, upon service of process outside the state by an officer authorized to serve process in the state or territory where service was had. Since defendant was not domiciled in Missouri, in personam jurisdiction was not obtained by the trial court under former Rule 54.07.

Plaintiff contends that even if defendant is not a resident of this state the trial court acquired jurisdiction over the defendant’s person since Rule 54.06(b) is procedural and thus retroactive. Rule 54.06(b), which became effective on September 1, 1973, subsequent to the date that process was served on defendant, authorizes the rendition of a general judgment in personam when service is obtained outside the state on a person “who has lived in lawful marriage within this state, ... if the other party to the lawful marriage continues to live in this state.” This argument evidences a misunderstanding of the concept of retroactivity. A ruling that Rule 54.06(b) is retroactive would merely signify that service of process sufficient to authorize the rendition of a general judgment could be obtained subsequent to the effective date of the rule on a person who lived in lawful marriage in this state prior to the effective date of the rule. See, Scheidegger v. Greene, 451 S.W.2d 135 (Mo.1970). Such a ruling would have no effect in those cases where service of process was obtained prior to the effective date of the rule. The civil rules in effect on the date service was obtained govern this appeal.

A judgment ordering a defendant to pay money is void when the court has no jurisdiction over the person of defendant. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877). Since in personam jurisdiction was never obtained over defendant, the award to plaintiff of alimony in gross, periodic alimony, child support and an attorney fee must be vacated. Beckmann v. Beckmann, 358 Mo. 1029, 1034, 218 S.W.2d 566, 570, 9 A.L.R.2d 428, 433 (1949).

Defendant has briefed and argued the alternative contention that the court erred in failing to grant him a stay or continuance under the Soldiers’ and Sailors’ Civil Relief Act. Since this contention is submitted alternatively and we have decided defendant’s other contention in his favor it is not necessary to discuss this point.

The decree dissolving the bonds of matrimony and awarding custody of the two minor children of the parties to plaintiff is affirmed. In all other respects the decree is reversed.

SEILER, C. J., and MORGAN, HENLEY, FINCH and DONNELLY, JJ., concur.

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

BARDGETT, Judge

(dissenting).

I respectfully dissent.

In my opinion there was sufficient evidence upon which the trial court could reasonably find as a fact that appellant was domiciled in Missouri and I would defer to that finding. The domicile of a person in the military service is oftentimes difficult to determine. In this case appellant does not claim to be domiciled in any other specific place and has designated Osage Beach, Missouri, as his permanent home address in his military records. This affirmative declaration of Missouri residency by the appellant, in my opinion, satisfies the requirement that he have a fixed intention to regard Missouri as his residence permanently or for an indefinite period of time. This, in my opinion, is particularly so in a situation where the nature of his employment— military service — requires his presence in various states and overseas and when he does not claim residency anywhere else.

With respect to physical presence in Missouri, there was evidence that appellant was in Camden County, Missouri, on a number of occasions. Although these occasions may principally have been when he was on furlough or vacation, it may well be that was the only time his employment allowed him to be in Missouri. In any event, it appears to me that the foregoing evidence together with the other evidence set forth in the principal opinion formed a sufficient basis for finding appellant to be a resident of Missouri.

For the foregoing reasons, I dissent.


author: HENLEY, Judge. DONNELLY, Judge

text:
    Johnny ANDERSON, a minor, by his mother and next friend, Rosemary Anderson, Plaintiff-Appellant, v. David F. CAHILL, d/b/a D. F. Cahill Construction Company, Defendant-Respondent.
    No. 58909.
    Supreme Court of Missouri, En Banc.
    Sept. 8, 1975.
    Rehearing Denied Oct. 13, 1975.

      Barbieri, Combs & Gotschall, Roger J. Barbieri, Commodore M. Combs, Jr., Kansas City, for plaintiff-appellant.
    Shook, Hardy & Bacon, David H. Clark, Robert E. Northrip, Kansas City, for defendant-respondent.
   HENLEY, Judge.

This is an action for damages for personal injuries received by a child when he fell into a construction excavation. Verdict and judgment were for defendant and plaintiff appealed to the Court of Appeals, Kansas City district. That court affirmed the judgment and, on application of plaintiff, we ordered the case transferred to this court. It will be finally determined here the same as on original appeal. Mo.Const. Art. V, § 10. We reverse and remand for error in the giving of two instructions.

Plaintiff was four years, ten months of age on the date of his injury. The excavation into which he fell was in a residential area of Independence, Missouri, on the grounds of St. Mary’s Church adjoining Liberty street on the east. Located on these grounds were the church building, the rectory south of the church, both of which faced Liberty street or west; the high school and gymnasium buildings behind or east of the church and rectory; and a secondary school building on the north side of the church which extends east from Liberty back toward the gymnasium. Defendant, in the process of building an addition to the back of the church building, excavated an area approximately 10 feet deep for a large basement and then poured the concrete footings and foundation walls for the addition, leaving an open area or hold of approximately two feet between the east side of the excavation and the foundation wall. Plaintiff and his two sisters, ages 6 and 7, were enroute to a neighborhood grocery store for their mother on a Saturday afternoon when they strayed from their errand onto the construction site. Their home was approximately a half-block from the driveway adjoining the south side of the rectory. Plaintiff was seen to fall headfirst into the open area described above at a point a few feet north of the excavation’s south edge. The witness, Mr. Virgil Julian, standing some distance farther north looking west, first became aware of the child when he saw him fall; he immediately jumped into the hole and rescued him.

Mrs. Virgil Julian testified that while in the car waiting for her husband to return, she saw two little girls playing in a sand pile inside the large excavation. She saw a little boy join the two girls and watched them play in the sand pile. Later, she saw her husband come out of the area between the concrete foundation wall and the side of the excavation carrying the plaintiff.

Defendant had erected a snow fence as a barrier in all openings leading from the street and the buildings to the construction area, but had failed to bar one avenue of access: a narrow strip (said to be 2-3 feet wide) behind the rectory and between a construction shed and the high school building leading north from an unbarred driveway on the south side of the rectory directly to the construction area and the excavation.

Plaintiff's first point is that the court erred in giving instruction No. 4, defendant’s converse of plaintiff’s verdict directing instruction No. 3, for the reasons stated below. Instruction No. 3 reads:

“Your verdict must be for the plaintiff if you believe:

First, defendant maintained an open excavated area, and

Second, defendant knew or should have known that young children would be likely to trespass, and

Third, that the open excavated area was a condition that the defendant knew or should have known involved an unreasonable risk of serious bodily harm to such children, and

Fourth, defendant failed to prevent plaintiff from being exposed to such harm, and

Fifth, defendant was thereby negligent, and

Sixth, as a direct result of such negligence plaintiff was damaged.

The term ‘negligence’ as used in these instructions means the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.”

Instruction No. 4 reads:

“Your verdict must be for the defendant unless you believe:

First, defendant knew or should have known that young children would be likely to trespass, and

Second, that the open excavated area was a condition that the defendant knew or should have known involved an unreasonable risk of serious bodily harm to such children, and

Third, defendant was negligent as submitted in Instruction Number 3, and

Fourth, as a direct result of such negligence plaintiff was damaged.”

Plaintiff contends that instruction 4 violated both the letter and the spirit of MAI and MAI 33.01 in that (1) it “was not a true converse but constituted two converse instructions within one * * * (2) it “deviated from MAI 33.06(6) which did not need modification * * *and (3) it “conversed only two elements of Instruction * * * [3], and failed to use any connecting words to identify the two elements upon which the jury could return its verdict for defendant, and hence constituted a roving commission for omission of what ultimate facts constituted negligence.”

Instruction 3 submits and requires a finding of the elements of plaintiff’s theory of his right to recover in this case based on § 339, Restatement of the Law, Torts, First (1934). Anderson v. Cahill, supra, 485 S.W.2d at 77-78, and eases there cited. There is no applicable instruction in MAI and the numbered paragraphs of this instruction are said to have been patterned after MAI 22.01, the attractive nuisance verdict director, with modifications necessary to conform to § 339, supra.

Instruction 4, said to be patterned after MAI 33.06(6), converses not only the facts on which negligence is predicated, it also converses negligence generally. As we understand plaintiff’s position, it is that defendant is entitled to one instruction conversing the facts on which negligence is predicated or one conversing negligence, but not one instruction conversing both.

Plaintiff relies heavily on Murphy v. Land, 420 S.W.2d 505, 507[1] (Mo.1967), a humanitarian negligence case in which two converse instructions were given, one (MAI 29.06(6), first edition; now 33.06(6)) conversing the several elements of the humanitarian submission and the other (MAI 29.-04(1), first edition; now 33.04(1)) conversing all negligence generally. The court held that the giving of these two instructions violated both the spirit and positive direction of MAI that only one converse be given for each verdict directing instruction, and was error. From this, plaintiff argues that the giving of one instruction which converses in combination both the “facts on which negligence is predicated” and “negligence” also violates the spirit and direction of MAI that only one converse be given.

In Young v. Grotsky, 459 S.W.2d 306, 308[1, 2] (Mo.1970) the court said: “MAI makes it clear that * * * there may be included in the one permitted converse instruction more than one proposition, provided only that the propositions conversed are submitted in the verdict directing instruction. * * * The reference in ‘Notes on Use’ that a defendant may give ‘only one converse’ for each verdict directing instruction means ‘only one converse’ instruction.”

Instruction 3, the verdict directing instruction to which instruction 4 was directed, required a finding of not only the “facts” submitted in paragraphs “First” through “Fourth,” but also that defendant was thereby “negligent.” The propositions conversed are submitted in the verdict directing instruction and combining them in the one converse instruction does not violate the proscription of MAI that only one converse instruction be given. Compare Brewer v. Swift & Company, 451 S.W.2d 131, 133[1] (Mo. banc 1970), in which the court held that the giving of an instruction conversing negligence was reversible error where the verdict directing instruction given did not require a finding of negligence, because (1) it allowed the jury to return a verdict for defendant upon finding a proposition not submitted by plaintiff, and (2) it did not comply with the requirement that the converse be in substantially the same language as the verdict director.

Plaintiff’s argument that the giving of instruction 4 was error because it “deviated from MAI 33.06(6) which did not need modification” is without merit. It did deviate, considerably. But, if it was error to give instruction 4 it was not error for this reason. MAI 33.06(6), upon which instruction 4 is said to have been patterned, is, as previously noted in footnote 3, an instruction to be used in conversing elements of a humanitarian submission. Plaintiff’s theory of recovery obviously was not based on the humanitarian doctrine; hence, MAI 33.-06(6), if properly used as a pattern, could not have been used without modification. It would have been error to use it as a converse instruction in this case without modification.

Plaintiff’s argument that instruction 4 gave the jury “a roving commission” to find for defendant, because it did not converse all but conversed only two of the numbered paragraphs of instruction 3 is also without merit. Defendant was not required to converse in instruction 4 all of the parts of plaintiff’s verdict director or any particular part of it. A defendant may converse any one or more of the elements essential to plaintiff’s case. Lietz v. Snyder Manufacturing Co., 475 S.W.2d 105, 109[6] (Mo.1972); Rule 70.01(f); MAI 33.01, supra.

However, it is difficult to determine to which elements of plaintiff’s case the converse instruction is directed. It appears at first to be directed only at paragraphs “Second” and “Third” of plaintiff’s verdict director, but, on another examination, it also appears to be directed at all propositions submitted in the “First” through “Fourth” paragraphs, because the “Third” paragraph of the converse tells the jury it may find for defendant unless it believes defendant was negligent “as submitted in Instruction Number 3,” i. e., all elements of negligence submitted in plaintiff’s case. In this respect instruction 4 is misleading and confusing. Furthermore, the “Third” paragraph of the instruction does not converse the “Fifth” paragraph of instruction 3 “in substantially the same language” as that of the verdict director as required by MAI 33.01. It thereby violated MAI 33.01 and the court erred in giving the instruction. Defendant has failed to demonstrate to our satisfaction that this error, combined with the misleading and confusing nature of instruction 4, did not have an effect prejudicial to plaintiff.

Because the case is reversed for the giving of instructions 4 and 6, we suggest that if, upon retrial, plaintiff’s verdict director is again patterned after MAI 22.01, that defendant should consider using as a pattern for his converse an instruction other than MAI 33.06(6).

Plaintiff also attacks the giving of instruction No. 6, which reads:

“The term ‘young children’ as used in these instructions means children too young to appreciate the danger of falling from a height.”

Plaintiff contends that the court erred in giving this instruction, because (1) it attempts to limit or change, contrary to the provisions of § 339, Restatement, supra, the description or definition of “young children” to whom the possessor of land would be liable for bodily harm; and (2) it is misleading. We agree.

Section 339, supra, reads:

“A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if

(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and
(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.”

The Restatement’s comment on clause (b), supra, reads, in part:

“An artificial condition may be peculiarly dangerous to children because of their tendency to intermeddle with things which are notoriously attractive to them, but this is not the only childish characteristic which may make an artificial condition, which involves no serious risk to an adult, highly dangerous to children. Children are notoriously inattentive to their surroundings, and this characteristic may make it unlikely that children will discover a condition which would be obvious to an adult. The lack of experience and judgment normal to young children may prevent them from realizing that a condition observed by them is dangerous or, although they realize that it is dangerous, may prevent them from appreciating the full extent of the risk.”

The young children to whom the possessor of land is liable for bodily harm under § 339, supra, are those who, “ * * * because of their youth[,] do not discover the condition or realize the risk involved in in-termeddling in it or in coming within the area made dangerous by it * * * his liability is not confined to those who are “too young to appreciate the danger of falling from a height.” Instruction 6 erroneously limits or restricts the membership of the group or “class” of trespassing children to whom the possessor of land (defendant) may be liable.

Furthermore, the term “young children,” used in § 339, supra, and plaintiff’s verdict directing instruction, did not require definition. It is common knowledge that a child almost five years of age is prone to explore, is inattentive to his surroundings while doing so, and is unable to comprehend the danger and risk presented in a construction site such as that involved in this case.

Further, the instruction’s definition of young children is not applicable to the facts of this case, is misleading, and is erroneous for these reasons. The facts here do not involve a child falling from a “height” to the ground; they involve a child falling from the natural “security” of ground level into a “hole” in the ground, an artificial condition created by defendant which the child may not have discovered or realized the risk involved in coming within the area made dangerous by it.

For the reasons stated, the giving of instruction 6 was error prejudicial to plaintiff.

The last three points briefed by plaintiff are very general claims of error in the admission of evidence relative to the supervision and care given to students attending St. Mary’s school and the warnings given them to stay away from the construction site. In connection with this charge of error, plaintiff also contends the court erred “in allowing persistent reference to ‘unsupervised children.’ ”

In the first of these three points plaintiff refers only to the admission of “evidence of St. Mary’s supervision of their students at street crossings,” and, more specifically, to the testimony of Sister Mary Edwina Comboy, principal of the school, that the elementary school children were not permitted to cross the streets unsupervised. Plaintiff’s objection to this testimony was sustained and the jury instructed to disregard it. Also, in connection with allowing defendant to refer persistently to “unsupervised” children, plaintiff’s objection was sustained in the only instances thereof mentioned in this point of his brief. For obvious reasons, plaintiff is in no position to charge that the court erred in ruling on the admissibility of this evidence.

In the remaining two points of the three plaintiff contends that the court erred in the admission of evidence that the school children were warned to stay away from the construction area and that defendant had no knowledge that young children, students or nonstudents, had gone into any part of the construction area prior to plaintiff’s injury. A related point was discussed in the first appeal of this case. 485 S.W.2d at 78[1]. The court said: “These are facts to be considered by a jury in determining whether or not defendant knew or should have known that children were likely to trespass, but the fact that plaintiff’s injury was not preceded by a history of known trespass cannot excuse the defendant if he could reasonably have foreseen the likelihood of the presence of children at the construction site.” The court did not err in the admission of this evidence.

The judgment is reversed and the cause is remanded.

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

DONNELLY, J., concurs in separate concurring opinion filed.

SEILER, C. J., concurs and concurs in separate concurring opinion of DONNELLY, J.

DONNELLY, Judge

(concurring).

This is another in a line of cases in which we must deal with contributory negligence in terms of “appreciation of risk; ” and where the defenses of assumption of risk and contributory negligence do not differ in legal effect. Cf. Turpin v. Shoemaker, 427 S.W.2d 485 (Mo.1968).

I concur in the majority opinion but desire to indicate my view that, when the question is fully presented to us on appeal, we should consider: (1) abrogating contributory negligence, assumption of risk, and the humanitarian doctrine; and (2) adopting the “pure” form of comparative negligence. Cf. Li v. Yellow Cab Company of California, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975).

There would seem to be no question that contributory negligence (Butterfield v. Forrester, 1809, 11 East 60, 103 Eng.Rep. 926), assumption of risk (Cruden v. Fentham, 1799, 2 Esp. 685, 170 Eng.Rep. 496), and the humanitarian doctrine, are, as general concepts, court-made and not legislative-made. Cf. Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599 (Mo. banc 1969) and O’Dell v. School District of Independence, 521 S.W.2d 403 (Mo. banc 1975). An exception would seem to be actions for wrongful death (§§ 537.080 and 537.085, RSMo 1969).

Therefore, under Abernathy, supra, I do not believe we need defer to the General Assembly in resolving the matter. The doctrines were established by the courts and, if they are to be abrogated or changed, this Court should abrogate or change them.

      . This is the second appeal in this case, the first being to this court from a judgment based on a directed verdict for defendant on the ground plaintiff had failed to make a submissible case. We reversed, holding plaintiff had made a submissible case under § 339, Restatement of the Law, Torts, First (1934). See: Anderson v. Cahill, 485 S.W.2d 76 (Mo.1972).

      . Missouri Approved Jury Instructions, second edition. References will be to that edition unless otherwise indicated.

      . A converse of elements of a plaintiffs humanitarian submission.

      . For example, see MAI 33.06(6).

      . For example, see MAI 33.03(2).

      . Plaintiff also cited in support of his first point: Nugent v. Hamilton & Son, Inc., 417 S.W.2d 939, 941[1-3] (Mo.1967); Brown v. St. Louis Public Service Co., 421 S.W.2d 255 (Mo. banc 1967); Gousetis v. Bange, 425 S.W.2d 91, 94—95[4] (Mo.1968); Royal Indemnity Co. v. Schneider, 485 S.W.2d 452 (Mo.App.1972); Wyatt v. Southwestern Bell Telephone Co., 514 S.W.2d 366 (Mo.App.1974).

      . References to rules are to Supreme Court Rules.


author: DONNELLY, Judge. SEILER, Chief Justice

text:
    FLOWER VALLEY SHOPPING CENTER, INC., a joint venture, et al., Plaintiff-Appellants, v. ST. LOUIS COUNTY, Missouri, a body corporate and politic, et al., Defendants-Respondents.
    No. 58615.
    Supreme Court of Missouri, en banc.
    Sept. 8, 1975.
    Rehearing Denied Oct. 13, 1975.

      Lewis, Rice, Tucker, Allen & Chubb by Arthur R. Tucker, Dominic Troiani, Ka-thianne Knaup, St. Louis, for appellants.
    Thomas W. Wehrle, St. Louis County Counselor, Andrew J. Minardi, George F. Smith, Associate County Counselors, Clayton, for respondents.
   DONNELLY, Judge.

Appellants Flower Valley Shopping Center, Inc., New Four Seasons, Inc., Capitol Land Company and Lee Center Shopper, Inc., are shopping centers located in the unincorporated area of St. Louis County. Each has a parking area in excess of 200,-000 square feet. Appellants Ninety-nine Hundred Page Boulevard Corporation and Wood Decor, Inc., are lessees and tenants of Capitol Land Company in a shopping center having a parking area in excess of 200,000 square feet.

Appellants seek to invalidate St. Louis County Ordinance 6954 (1973), Chapter 624, Title VI, SLCRO (1964), known as the “Commercial Outside Security Code.”

The ordinance requires that owners of shopping centers located in the unincorporated area of St. Louis County, and having parking area in excess of 200,000 square feet, provide outside security services for the protection and safety of shoppers. It designates various means of effectuating the purpose of the ordinance, ranging from foot patrols by licensed watchmen to electronic surveillance systems in combination with licensed watchmen. The licensed watchmen are to be privately employed by the owners of the shopping centers, but under the direction and supervision of the Superintendent of Police of St. Louis County. The ordinance purports to give such watchmen full powers of arrest and the use of weapons. The ordinance also provides for penalties up to $1,000 for violations of the ordinance.

The trial court, without opinion, declared the ordinance valid, but granted appellants’ motion to stay enforcement of the ordinance pending appeal.

As we view the case, the determinative question is whether St. Louis County may impose upon the owners and tenants of shopping centers the duty of providing police protection for the visiting public. In answering this question it is first necessary to distinguish the issue of the constitutionality of the ordinance, which refers to the reasonableness of the exercise of the County’s police power, and the issue of authority under the County charter to enact such legislation in this area of the law. In other words, an ordinance may well meet the constitutional standard of reasonableness, and yet be invalid because a county or city has not been granted the power and authority to enact such legislation. We feel this is the situation in the present case.

We have found no law bearing directly on the question. However, we have found decisions and statutes relating indirectly to the problem.

In City of Hartford v. Parsons, 87 Conn. 412, 87 A. 736 (1913), a city ordinance required theater managers to have in attendance at every performance a member of either the city police force or the fire department to supervise fire escapes and exits. The Court declared that it had no doubt that the City of Hartford had authority, under its police power, to enact the ordinance in question and require the various theater managers to pay for the services rendered.

The case of Tannenbaum v. Rehm, 152 Ala. 494, 44 So. 532 (1907), involved an ordinance of the City of Mobile whereby the mayor, at the request of the theater manager, could detail up to four policemen at a theater to preserve order. More importantly, the ordinance provided that the chief of the fire department shall assign one fireman to all theater performances to prevent and extinguish fires. The ordinance further provided that the cost of both the police and fire protection was to be paid by the theater manager. The Court concluded “. . . that the ordinance in question was clearly within the police power of the municipality, and that it is not unreasonable.” 152 Ala. at 498, 44 So. at 533.

Similarly, in American Baseball Club of Philadelphia v. City of Philadelphia, 312 Pa. 311, 167 A. 891 (1933), a city ordinance required persons holding athletic contests or exhibitions at which an admission fee was charged to pay a license fee in an amount based on a reasonable estimate of the number of policemen or firemen needed to protect the public safety at such events. The Court found this ordinance to be reasonable and within the police power of the city, saying:

“Where admission is charged, the maintenance of the exhibition or contest is in the nature of a business for profit, while in the case where no admission is charged there is present no suggestion of business. It is not without reason that, where a profit is expected, and the whole purpose of the exhibition is to produce a profit, the city authorities should conclude that it is improper to require the public to contribute to the success of the business to a greater extent than is necessary in the conduct of other businesses. It does not appear as unreasonable that the municipal authorities should require those who demand special services from it in order to conduct their businesses at a profit to pay for the additional services, and not burden other citizens of the municipality with the cost of such services.
“Complaint is made that appellees are taxpayers, and as such they are entitled to these services. In answer, we may say it is true the city is obligated to render services to all taxpayers, but, where that service is worked into the success of their business so that they may make a profit, a different question arises. There is a vast distinction between great public buildings which house thousands, great department stores where thousands visit daily, great industrial plants where tens of thousands are employed, who at noon and evening hours discharge on the public streets tens of thousands who need no extra police supervision, and an athletic contest such as a baseball game which imposes on the city an extraordinary expense. In brief, the city should not be required to help defray the operating costs of a business of this kind.” 167 A. at 894.

A similar issue of corporate power and authority was presented in Waters v. Leech, 3 Ark. 110 (1840), wherein an ordinance of the City of Little Rock required the city constable to attend every circus, show, menagerie, theater or exhibition performed in the city in order to preserve the peace, and imposed a fee on the proprietor for such service in the sum of $2.50 per night. The Court scrutinized the city charter, noting provisions relating to the maintenance and promotion of “good order and government.” The Court also discussed the nature of corporate powers in that they “. . . are not only limited, but must be reasonably exercised in sound discretion, and not only strictly within the limits of the charter, but in perfect subordination to the constitution and the general law of land, and the rights dependent thereon; and that power, if properly exercised, may be enforced by just and competent penalties.” 3 Ark. at 115.

The Court found the imposition of the service fee not within the power of the city. The Court reasoned that “[i]f the principle is admitted that under the general power of providing by ordinances and bylaws for the preservation of good order within the limits of the city, the corporation can do this, where, we would inquire, is the limit to their authority? They may, with the same propriety, make his duty extend to standing guard over dramshops and drinking establishments, and at the stores of the citizens, thereby rendering those laws and ordinances oppressive and injurious, under the specious pretense of suppressing riot or tumult which might or might not take place.” 3 Ark. at 117.

In City of Chicago v. Weber et al., 246 Ill. 304, 92 N.E. 859 (1910), an ordinance required theater owners to employ a regular city fireman, approved by the fire marshal and subject to his command at every theater performance. The cost of such service was to be borne by the proprietor. The Court concluded the Legislature had not empowered the city to pass such an ordinance, and further found it unnecessary to decide whether the Legislature could authorize the passage of such an ordinance, and whether it would be constitutional if duly authorized. The Court reasoned as follows:

“It is undoubtedly true that provisions for the safety of the public come within the police power, as has been frequently held with reference to crossings over railways (Chicago & Northwestern Railway Co. v. City of Chicago, 140 Ill. 309, 29 N.E. 1109), and the safety of the public attending theaters in large numbers would be promoted by the attendance of a member of the fire department and the performance of the duties imposed upon him by the ordinance. That, however, does not determine the question of the right to require a theater owner to pay for such services rendered to the public. Counsel for the city regard the question as merely one of classification as between owners of theaters and owners of other buildings, and insist that there are material differences between theaters and other buildings where there are large numbers of people, so that the classification is founded on substantial differences. That is not the whole question. The Legislature have the same authority over the business of conducting the theater as any other lawful business and no more (People v. Steele, 231 Ill. 340, 83 N.E. 236, 14 L.R.A.[N.S.] 361, 121 Am.St.Rep. 321), and if the city cannot impose a burden like the one in question upon private owners it is immaterial whether it can classify owners or not. There are differences between theaters and some other places where there are large numbers of people exposed to the dangers of fire, consisting in the fact of their being seated and the liability to a panic with the dangerous consequences; but whether there is any perceptible difference between theaters, assembly halls, and churches where practically equal numbers gather and are seated is not so clear. * * * There are other buildings in the city where there are great numbers of people which are distinguished in some respects from theaters. There are department stores in which the number of clerks and employes range from 2,000 to 4,000 in dull seasons and reach 6,000 in busy times and in which there are from 5,000 to 10,000 people at one time. These buildings are filled with inflammable material and without the exits required in theaters. * * * The illustration given with respect to other buildings is not for the purpose of demonstrating that there is no ground for classification as between theaters and other buildings, but for the purpose of making it clear that there are other buildings and property owners which might be subjected to the same requirement if the power exists. In every building in the city where large numbers of people are employed or where the public go in crowds, the safety of those in the building would be promoted by having a member of the fire department there, and, if the discharge of the duty to the public who attend theaters may be charged to the owner, the same requirement may be made of the owner of every other building where the public are invited or attend in numbers. The city has power to establish a fire department, to erect engine houses, and provide fire engines and other implements for the prevention and extinguishment of fires; but that duty is a duty to the public. If there is power to charge the expenses of performing that public duty to the owner of a theater, there is also power to do the same thing with respect to other owners, and the members of the fire department could be parceled out and stationed in private buildings, so that practically the whole expense of the fire department would be paid by individuals or corporations. If the city has authority to do that, it could accomplish the same result with policemen, who are in the direct exercise of the police power, and they might be stationed in every building where disorder or violation of the law might occur and the expense be charged to the owner. That the city cannot perform its duties to the public in that way is manifest.” 92 N.E. at 861-862.

In the present case, the primary thrust of appellants’ argument questions the constitutionality of the ordinance. The general law in Missouri on this question was stated in Bellerive Investment Co. v. Kansas City, 321 Mo. 969, 981, 13 S.W.2d 628, 634 (1929), as follows:

“It has been definitely and clearly established and settled, by the decisions of this court and of the federal Supreme Court, that a statute, or a municipal ordinance, which is fairly referable to the police power of the State or municipality, and which discloses upon its face, or which may be shown aliunde, to have been enacted for the protection, and in furtherance, of the peace, comfort, safety, health, morality, and general welfare of the inhabitants of the State or municipality, does not contravene or infringe the several sections of the state and federal Constitutions invoked by the appellants herein, and cannot be held invalid as wrongfully depriving the appellants of any right or privilege guaranteed by the Constitution, state or federal; the reason and basis underlying such decisions being that the personal and property rights of the individual are subservient and subordinate to the general welfare of society, and of the community at large, and that a statute or ordinance which is fairly referable to the police power has for its object the ‘greatest good of the greatest number.’ ”

We believe the ordinance would represent a reasonable exercise of the police power under the law stated in Bellerive, supra, if authorized by the Constitution or by statute. See 4 D.C.Code § 115; 23 D.C. Code § 582(a); 31 V.S.A. § 620; Chung Mee Restaurant Co. v. Healy, 86 N.H. 483, 171 A. 263 (1934).

However, we have concluded that St. Louis County is without authority to enact the ordinance. We recognize that Article VI, § 18(b) of the Constitution, “in authorizing the adoption of home rule charters, * * * carries with it an implied grant of such powers as are reasonably necessary to the exercise of the powers granted * * Hellman v. St. Louis County, 302 S.W.2d 911, 916 (Mo.1957). But, a charter or ordinance enacted under § 18(b), may not “invade the province of general legislation” involving the public policy of the state as a whole. State ex rel. Spink v. Kemp, 283 S.W.2d 502, 514 (Mo. banc 1955). In State ex rel. St. Louis County v. Kirkpatrick, 426 S.W.2d 72, 74 (Mo.1968), the question was whether the County had the authority to enact an ordinance submitting to the voters a proposal calling for the nonpartisan selection in the County of certain judges. This Court held that the County was without such authority and that “[e]ven though St. Louis County under its charter must perform certain state functions over the entire county, * * * it is not within the constitutional power granted the county to provide for the manner of selection of * * * judges, * * In our opinion, the question whether owners of private property may be compelled to provide police protection for shoppers is also one of state-wide concern and may not be addressed by counties without constitutional or statutory authority more explicit than is found in Art. VI, § 18(b).

The judgment is reversed and remanded with directions to proceed in a manner consistent with this opinion.

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

SEILER, C. J., concurs in separate concurring opinion filed.

SEILER, Chief Justice

(concurring).

I concur in the principal opinion, but would emphasize that under the provisions of Art. VI, Sec. 18, Mo. Const., county charters are instruments which grant power and I take what is said in the principal opinion to be said with that in mind. We are not dealing here with a charter which is an instrument to limit power, as is now true of charters for charter cities under the constitutional amendments adopted in 1971 to Art. VI, Secs. 19 and 19(a) as I understand them. A charter city has the power, provided it is consistent with the Constitution and not denied by the charter or by statute.


author: DONNELLY, Judge.

text:
    HARDWARE MUTUAL CASUALTY COMPANY, a corporation, Respondent, v. Hugh E. BEARDEN, III, et al., Appellants, v. EXECUTIVE AUTO LEASING COMPANY, a corporation, Third-Party Defendant-Respondent.
    No. 59025.
    Supreme Court of Missouri, En Banc.
    Sept. 8, 1975.
    Rehearing Denied Oct. 13, 1975.

      F. Douglas O’Leary, Joseph H. Mueller, Moser, Marsalek, Carpenter, Cleary, Jaeck-el, Keaney & Brown, St. Louis, for respondents.
    Cox, Moffitt & Cox, Dallas W. Cox, Jr., St. Louis, for appellant Heckethorn.
    Thurman, Nixon, Smith, Howald, Weber & Bowles, Robert Lee Smith, Hillsboro, for appellants Agers.
    Gunn & Gunn by Donald Gunn, Jr., James F. Gunn, Patrick R. Gunn, St. Louis, for defendant-appellant Cleary.
   DONNELLY, Judge.

On September 4, 1967, Hugh E. Bearden, III, was the driver of a 1965 Ford Mustang which collided with an automobile driven by Lillian Agers, wife of Albert Agers. The Agers are appellants herein, along with Beverly Cleary and David Heckethorn, passengers in the Bearden vehicle, all of whom obtained judgments against Hugh Bearden, III. Karen Piersal, a third passenger in the Bearden vehicle, is not a party to this appeal.

The automobile which Bearden was driving at the time of the collision was leased from Executive Auto Leasing Company on September 30, 1964, by his father, Hugh E. Bearden, Jr. Plaintiff Hardware Mutual Insurance Company insured the Bearden vehicle under a fleet policy covering automobiles leased by Executive. Hardware Mutual brought this declaratory judgment action to determine whether Hugh Bearden, III, was covered under the policy. Appellants brought Executive into the suit as a third-party defendant.

The Circuit Court of St. Louis County held for Hardware Mutual and Executive, finding that Hugh Bearden, III, was not covered by the policy issued by plaintiff to Executive Auto Leasing. The case was appealed to the Missouri Court of Appeals, St. Louis District. After submission, but prior to opinion, that Court transferred the case to this Court on the jurisdictional basis of the constitutionality of § 303.330, RSMol969. In view of our disposition of the case, we do not reach the constitutional question. However, jurisdiction once acquired is not lost because the appeal may be disposed of on other grounds. State ex rel. State Highway Commission v. Wiggins, 454 S.W.2d 899, 902 (Mo. banc 1970).

With respect to the fleet policy involved here, by arrangement between Hardware Mutual and Executive, the insurer charged Executive a fixed premium on each automobile for which Executive agreed to provide coverage. The premium charged by Hardware Mutual did not vary with the number of drivers or their ages. However, Executive screened the applicants for insurance because the fixed charge per vehicle it paid would increase in the following year if Executive’s loss experience was poor.

The lease was to run for a period of 24 months at the rate of $108 per month. Twenty dollars of this amount related to insurance coverage. At the end of the initial lease period, the lease was “reprogrammed” on September 30, 1966, for an additional 24 months.

Paragraph 9(b) of the lease provides:

“Lessee shall not permit any of said motor vehicle(s) to be used in violation of any Federal, State and municipal statutes, laws, ordinances, rules or regulations, * *

Exclusion 4(V) of the “Rented and Leased Automobile Endorsement” to the Hardware Mutual insurance policy provides • that there shall be no coverage:

“Except with respect to the named insured, while the automobile is used or operated in violation of the terms of the rental or lease agreement, applicable thereto.”

On January 21, 1966, the operator’s license of Hugh Bearden, III, was suspended for 30 days due to an excessive accumulation of points. § 302.304(2), RSMo 1969. Appellants do not contest the validity of this suspension.

Section 302.309(1) provides:

“Whenever any operator’s or chauffeur’s license is suspended under sections 302.302 to 302.309, the director of revenue shall return the license to the operator or chauffeur immediately upon the termination of the period of suspension and upon compliance with the requirements of chapter 303, RSMo.” (Emphasis added.)

“Thus, the operator is entitled to his license again at the end of the suspension only ‘upon compliance with the requirements of chapter 303, RSMo.’ ” Biersmith v. Schaffner, 477 S.W.2d 121, 122 (Mo. banc 1972). The requirements for reinstatement of driving privileges are found in § 303.-150(2), which provides as follows:

“Such license and registration shall remain suspended or revoked and shall not at any time thereafter be renewed, nor shall any license be thereafter issued to such person, nor shall any motor vehicle be thereafter registered in the name of such person, until permitted under the motor vehicle laws of this state, and not then unless and until he shall give and thereafter maintain proof of financial responsibility.” (Emphasis added.)
“When, following termination of the specified period of suspension, an operator complies with § 303.150(2), he is entitled to reinstatement of his driving privileges, but the burden is on the operator to furnish the proof of responsibility required by Chapter 303.” (Emphasis added.) Biersmith v. Schaffner, supra, at 122.

In order to comply with § 303.150(2), a telephone call was made to Executive by a man who identified himself as Hugh Bear-den, Jr. The caller requested Executive to file an S.R. 22 form with the Safety Responsibility Unit showing that his son, Hugh Bearden, III, was covered by liability insurance. Executive refused this request and indicated it did not want Hugh Bear-den, III, driving the leased automobile.

A second call to Executive was made by a woman who identified herself as Mrs. Bear-den. This discussion concerned a reduction in monthly lease payments if Hugh Bear-den, III, was removed from coverage under Executive’s fleet policy. Shortly after this conversation Executive received the following note:

“Please remove Hugh E. Bearden, Jr., from our ins. policy as his license was revoked and I am the only one driving at this time. I bought him a 1956 Chev. and he has filed an S.R. Form and has ins. to drive it. Mr. H. E. Bearden, 7538 Hazel-crest, St. Louis, 42, Missouri.”

Pursuant to this note, Executive lowered the monthly lease rental by $5.00 to reflect the absence of coverage of Hugh Bearden, III, under the insurance policy.

Hugh Bearden, Ill’s, license was reinstated on March 11, 1966, pursuant to his having demonstrated proof of financial responsibility by obtaining an auto liability insurance policy from Mission Insurance Company covering his use of the 1956 Chevrolet.

The “official lift notice of suspension” gave Hugh Bearden, III, the privilege of driving only the 1956 Chevrolet. The form used by the Department of Revenue lists other extended driving privileges, such as operating non-owned vehicles, which may be given to a person upon reinstatement of his license. However, none of the boxes to the left of any of these other driving privileges were checked with respect to Hugh Bearden, III. The official lift notice also included the following condition:

“ATTENTION:
“THE FUTURE PROOF SECTION OF THE MOTOR VEHICLE SAFETY RESPONSIBILITY LAW PROVIDES THAT A SUBJECT MUST MAINTAIN PROOF OF HIS FINANCIAL RESPONSIBILITY FOR A PERIOD OF THREE YEARS. FAILURE TO DO SO RESULTS IN THE RESUSPENSION OF SUCH PRIVILEGES. THEREFORE, YOU WILL BE REQUIRED TO FILE PROOF OF YOUR FINANCIAL RESPONSIBILITY FOR THE FUTURE WITH THIS UNIT UNTIL January 21, 1969 .”

Hugh Bearden, III, drove the Chevrolet approximately two months before it quit running and was junked. He then stopped making premium payments on his Mission Insurance Company policy, which was canceled in May, 1966. Upon cancellation, Mission Insurance Company notified the Safety Responsibility Unit of its action. Bearden’s license was then resuspended on July 28, 1966, for failure to refile proof of financial responsibility. The notice of resuspension was misaddressed and Hugh Bearden, III, denies having ever received it. We consider this fact immaterial because the March 11th reinstatement notice provided Hugh Bear-den, III, with actual notice of the consequences of his failure to maintain liability insurance.

When the Mission policy was canceled for nonpayment of premiums, Hugh Bearden, III, did nothing in the way of furnishing the proof of financial responsibility required by § 303.150(2) and the express conditions of the March 11th lift notice of his suspension. Hugh Bearden, III, contends that even though the Mission policy was canceled, he was still covered by Executive’s policy with Hardware Mutual, notwithstanding the fact that Executive had previously refused to file an S.R. 22 form on his behalf, and he never again requested Executive to acknowledge coverage for him. Again, the burden was on Hugh Bearden, III, to maintain proof of financial responsibility. Biersmith v. Schaffner, supra. There was never any proof filed after the May, 1966, cancellation of the Mission policy. Although we doubt, under the particular facts of this case, that Hugh Bearden, III, was otherwise covered under Executive’s policy, we need not and do not decide that question.

We have previously determined that Hugh Bearden, III, was required to maintain liability insurance as a condition of the continuance of his driving privileges. Section 303.330, RSMo 1969, provides that “[a]ny person * * * whose policy of insurance * * *, when required under this chapter, shall have been canceled or terminated, * * * shall immediately return his license and registration to the director. * *

Hugh Bearden, III, contends that the July, 1966, resuspension was invalid and that § 303.330 is unconstitutional because it does not provide for notice and a hearing prior to suspension of a person’s operator’s license, citing Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971).

We need not, and should not, decide the constitutionality of § 303.330 in this case. The Bell case involved the failure to provide a hearing on the issue of fault prior to the suspension of the operator’s license of a driver involved in an accident. Here, we are not dealing with a license suspension following an accident, where the issue of fault has not previously been determined by a hearing. We are dealing with a resuspension for failure to refile proof of financial responsibility, as required by § 303.150(2) and the March 11, 1966, notice of reinstatement as a condition of the continuance of driving privileges in the State of Missouri. This condition was not met by Hugh Bear-den, III. Thus, at the time of the collision on September 4, 1967, the operator’s license of Hugh Bearden, III, was validly suspended and consequently, he was driving the leased automobile in violation of § 302.-020(1), (2), RSMo 1969, and was subject to prosecution under § 303.370(3), RSMo 1969. The Bell holding is not applicable to the facts in the present case because the issue of fault is not involved here. Cf. State v. Hanson, 493 S.W.2d 8, 13 (Mo.App.1973).

Bearden’s operation of the leased vehicle in contravention of state law constitutes a violation of paragraph 9(b) of the lease, supra; and this violation of the lease renders exclusion (Y) of the insurance policy, supra, operative so as to exclude coverage in this case.

Appellants contend exclusion (V) is inapplicable because Hugh Bearden, Jr. “should be held to be a named insured,” as specified in paragraph 7(b) of the lease. This contention is without merit. The exception stated in exclusion (V), if applicable at all to Hugh Bearden, Jr., assuming he is entitled to the status of a named insured, clearly refers to use or operation by the named insured; and not use or operation by a permittee, or allowance of use by the named insured to a permittee. Exclusion (V) does not provide for or contemplate coverage where a permittee has used or operated the leased automobile in violation of the terms of the lease agreement.

Accordingly, we hold Hugh E. Bearden, III, was not covered by the Hardware Mutual Policy at the time of the collision. Appellants, as judgment creditors, are similarly foreclosed in that they stand in the shoes of the insured, Hugh Bearden, III, through whom they assert their claims. Greer v. Zurich Ins. Co., 441 S.W.2d 15, 30 (Mo.1969); Wackerle v. Pacific Employers Insurance Co., 219 F.2d 1, 7 (8th Cir. 1955), cert. den. 349 U.S. 955, 75 S.Ct. 884, 99 L.Ed. 1279.

The judgment is affirmed.

All concur.