author: HALL, Justice.

text:
    Joe Edd GRIMM, Justice of the Peace, Precinct 3, McLennan County, Texas, Appellant, v. Edward Ray GARNER, Appellee.
    No. 6030.
    Court of Civil Appeals of Texas, Waco.
    Feb. 15, 1979.
    Rehearing Denied March 8, 1979.

      Felipe Reyna, Criminal Dist. Atty., Randall Rogers, Lynnan Kendrick, Frank M. Fitzpatrick, Jr., Asst. Dist. Attys., Waco, for appellant.
    Bill Vannatta and Richard E. Miller, Clark & Vannatta, Waco, for appellee.
   HALL, Justice.

Appellee Edward Ray Garner brought this action in the 74th District Court of McLennan County for a writ of mandamus commanding appellant, Joe Edd Grimm, Justice of the Peace, Precinct 3, of McLen-nan County to comply with the provisions of the Texas Speedy Trial Act for criminal cases and grant appellee’s motion to set aside a criminal complaint filed in the Justice Court against appellee. After a hearing without a jury, the court issued the writ. Appellant asserts the writ should be set aside because (1) the District Court did not have jurisdiction to issue it, and (2) appellee had an adequate legal remedy by way of appeal. We overrule those contentions.

The time limitations for the trial of criminal cases under the Speedy Trial Act are set forth in Article 32A.02, Vernon’s Tex.Code Crim.Proc. In pertinent parts that statute provides as follows:

Section 1. A court shall grant a motion to set aside an indictment, information, or complaint if the State is not ready for trial within: ... (4) 30 days of the commencement of a criminal action if the defendant is accused of a misdemeanor punishable by a fine only.
Section 2. . (b) If a defendant is to be retried following a mistrial, an order granting a new trial, or an appeal or collateral attack, a criminal action commences for purposes of this article on the date of the mistrial, the order granting a new trial, or the remand.

After a request by appellant for findings of fact, the court filed findings which establish that appellant is Justice of the Peace, Frecinct 3, of McLennan County; that on April 14, 1978, appellee was charged by complaint in appellant’s court with the offense of speeding; that a jury trial held on the complaint in appellant’s court on August 4,1978, resulted in a mistrial; that the State was not ready for trial within 30 days after the date of the mistrial; that on September 12, 1978, appellee filed his motion with appellant to set aside the complaint under the Speedy Trial Act; and that on September 21,1978, appellant overruled ap-pellee’s motion.

Appellant does not question any finding of fact. Additionally, the appellate record does not contain a statement of facts and the court’s findings must therefore be deemed conclusive on the issues determined. Texas & P. Ry. Co. v. Purcell, 91 Tex. 585, 44 S.W. 1058 (1898); Englander Co. v. Kennedy, 428 S.W.2d 806 (Tex.Sup.1968).

The speeding offense charged against ap-pellee is a misdemeanor punishable by a fine of not more than $200.00. § 143 and § 166(a), Article 6701d, Vernon’s Tex.Civ.St. Original jurisdiction of that offense is vested in the Justice Courts, whereas District Courts have original jurisdiction in criminal cases of the grade of felony, and of misdemeanors involving official misconduct. Vernon’s Tex.Const., Article 5, §§ 8 and 19; and Vernon’s Tex.Code Crim.Proc., Articles 4.05 and 4.11. Citing those authorities, appellant argues that the trial court’s action in the case at bar was an unwarranted assumption of jurisdiction. That contention is erroneous.

The trial court was not attempting to exercise its criminal jurisdiction. A mandamus proceeding is a civil suit, even though it may stem from a criminal proceeding. Hogan v. Turland, 428 S.W.2d 316, 317 (Tex.Sup.1968).

By virtue of § 8 of Article 5, Vernon’s Tex.Const., District Courts and the judges thereof are vested with jurisdiction and power “to issue writs of habeas corpus, mandamus, injunction and certiorari, and all writs necessary to enforce their jurisdiction.” This provision has been construed by our Supreme Court “as giving the substantive power to issue the writs named in all cases when courts of law or equity, under settled rules, would have the power to issue them, whether they be necessary to enforce some jurisdiction given by the other provisions or not. This provision is in itself a grant of distinct jurisdiction and powers which do not depend upon the other provisions defining classes of cases or amounts in controversy over which also jurisdiction is given.” Thorne v. Moore, 101 Tex. 205, 105 S.W. 985, 986 (1907).

It is settled that a writ of mandamus will issue to an inferior court to compel the performance of a duty made mandatory by law or the doing of an act that is simply ministerial and involves no judicial discretion. Richburg v. Baldwin, 89 S.W.2d 851, 852 (Tex.Civ.App.—Dallas 1936, writ dism.); 15 Tex.Jur.2d 420, Courts, § 11; 37 Tex. Jur.2d 654, Mandamus, § 41.

Under the undisputed facts it was appellant’s duty to comply with the mandatory provisions of the Speedy Trial Act and grant appellee’s motion to dismiss the complaint. It follows that appellee should not be relegated to an appeal to protect his immediate right to the order of dismissal, which did not involve the exercise of any discretion by appellant. Further, appellee does not have a remedy by appeal to question appellant’s order overruling the motion. Appeals from Justice Courts are by trial de novo in the County Courts. Article 5, § 16, Vernon’s Tex.Const.

This mandamus action was within the District Court’s jurisdiction, and the writ was properly issued. The judgment is affirmed.


source: Caselaw Access Project

author: McCLOUD, Chief Justice.

license: Public Domain

text:
    Daniel Martin GREENBERG et al., Appellants, v. ROYAL COMMERCE BANK NATIONAL ASSOCIATION, Appellee.
    No. 5250.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 15, 1979.
    Rehearing Denied March 8, 1979.
    Michael Greenberg, Irving, for appellants.
    Donald R. Rector, Smith & Rector, Dallas, for appellee.
   McCLOUD, Chief Justice.

The controlling issue in this summary judgment case is whether a deed of trust promissory note providing for interest at a rate of less than ten percent per annum and secured by a secondary deed of trust on a homestead is governed by Tex.Rev.Civ.Stat. Ann. art. 5069-1.01 et seq., or Tex.Rev.Civ. Stat.Ann. art. 5069-5.01 et seq.

On August 19, 1977, plaintiffs, Daniel Martin Greenberg and wife, Sandra Kay Greenberg, executed a deed of trust promissory note, in the principal sum of $10,010, made payable to defendant, Royal Commerce Bank National Association. The note, which was secured by a secondary deed of trust covering plaintiffs’ homestead, provided for interest at the rate of 9.95 percent per annum. The money received for executing the note was used to construct a swimming pool on plaintiffs’ premises. Plaintiffs sued defendant, asserting that the note violated Article 5069-5.02(5) because it provided that if the note was placed in the hands of an attorney for collection, or if collected by suit, the plaintiffs agreed to pay ten percent additional on the principal and interest then due as attorney’s fees. The note was not in default.

Both parties filed motions for summary judgment. The court denied plaintiffs’ motion and granted defendant’s motion. Plaintiffs have appealed. We affirm.

Plaintiffs argue that the note is a “secondary mortgage loan” as defined in Article 5069-5.01, and since it contains a provision authorizing the holder to collect attorney’s fees in the event of default, it violates Article 5069-5.02, which provides in part:

(5) In addition to the authorized charges provided in this Chapter no further or other charge or amount whatsoever shall be directly, or indirectly, charged, contracted for, or received. This includes (but is not limited by) all charges such as fees, compensation, bonuses, commissions, brokerage, discounts, expenses and every other charge of any nature whatsoever, whether of the types listed herein or not. Without limitation of the foregoing, such charges may be any form of costs or compensation whether contracted for or not, received by the lender, or any other person, in connection with (a) the investigating, arranging, negotiation, procuring, guaranteeing, making, servicing, collecting or enforcing of a loan; .
Article 5069-5.01 provides in part:
(1) As used in this Chapter, “secondary mortgage loan” means
(a) a loan made to any person not to be repaid in ninety days or less which is secured, in whole or in part, by any lien or security interest or any interest in real property improved by a dwelling designed for occupancy by four families or less, which property is subject to the lien of one or more liens or security interests, prior mortgages or deeds of trust, or
(b) the purchase of any interest in an existing secondary mortgage loan from the mortgagee made to secure such a loan.
(2) On or after the effective date of this Chapter, no person, except a bank, savings and loan association or credit union doing business under the laws of this State or of the United States and any person licensed to do business under the provisions of Chapter 3 of this Subtitle, shall engage in the business of making secondary mortgage loans and contract for, charge or receive, directly or indirectly in connection with any such loan, any charge for interest which exceeds ten percent per annum on unpaid principal balances and any lawful charge for compensation, consideration, expense, or any other thing incident to or in connection with the loan which exceeds the amounts a person authorized hereunder would be permitted to charge under Article 5.02(5).

Defendant argues that since the note provided for interest at a rate of less than ten percent per annum, Article 5069-1.01 et seq. governs the transaction and Article 5069-5.01 et seq. is not applicable. We agree.

Article 5069-1.02 provides:
Except as otherwise fixed by law, the maximum rate of interest shall be ten percent per annum. A greater rate of interest than ten percent per annum unless otherwise authorized by law shall be deemed usurious. All contracts for usury are contrary to public policy and shall be subject to the appropriate penalties prescribed in Article 1.06 of this Subtitle.

Title 79 of the Revised Civil Statutes of Texas was revised, effective October 1, 1967. Subtitle One consists of “Chapter 1” entitled “Interest,” and is codified in Article 5069-1.01 et seq. Subtitle Two of Title 79 consists of Chapters 2 through 8, entitled “Consumer Credit,” and is codified in Articles 5069-2.01 through 5069-8.01. It is clear that Subtitle Two, the Consumer Credit Code, which includes Article 5069-5.-01 et seq. (Chapter 5), was enacted to permit, under certain conditions, authorized parties to make regulated loans and charge “time-price differential” (Chapters 6 and 7), or interest in excess of ten percent per annum (Chapters 3, 4 and 5). Article 5069-5.02(1) expressly provides that the listed regulations apply to loans “made under the authority of this Chapter.” Under Article 5069-5.02(1), an authorized lender may contract for and receive on a secondary mortgage loan, made under the authority of Article 5069-5.01 et seq., an add-on interest charge which exceeds the ten percent per annum interest charge provided for in Article 5069-1.02. Article 5069-5.01 et seq. governs the transaction if an authorized party makes a secondary mortgage loan and the rate of interest exceeds ten percent per annum.

The court in Crowder v. First Federal Savings & Loan Association of Dallas, 567 S.W.2d 550 (Tex.Civ.App.—Tyler 1978, writ ref’d n. r. e.) stated:

Before the Consumer Credit Code was enacted in 1967, any loan with an effective rate of interest greater than 10% per annum was considered usurious. Under the Credit Code, lenders are now permitted to charge effective rates of interest greater than 10% per annum, provided they comply with the requirements under the Code. Thus, lenders may choose between charging up to 10% per annum free of restrictions (under subtitle 1), or charging an effective rate of interest greater than 10% and be subject to the relevant regulations under the Credit Code. .

In Anguiano v. Jim Walter Homes, Inc., 561 S.W.2d 249 (Tex.Civ. App.—San Antonio 1978, writ ref’d n. r. e.), while discussing Article 5069-6.01 et seq., the court said:

In 1967, the Legislature enacted the Credit Code which preserved the time-price doctrine but which imposed various disclosure requirements and limitations when time-price differential was charged. Art. 5069-6.01 et seq. On the other hand, Chapter 1 of the Credit Code allows interest up to 10 percent per annum, and imposes no disclosure requirements nor prohibitions. Art. 5069-6.01 et seq. By the Credit Code, sellers are permitted to choose between interest up to 10 percent per annum, free of restrictions (Chapter 1); or to charge time-price differential at a much higher yield and be subject to closer regulations (Chapter 6).

We hold that the loan in question, which provided for interest at the rate of 9.95 percent per annum, is not governed by Article 5069-5.01 et seq. We note, however, even if the interest rate exceeded ten percent and the loan was “made under the authority” of “Chapter 5” (Article 5069-5.-01 et seq.), the provision providing for attorney’s fees would not violate Article 5069-5.02(5). Crowder v. First Federal Savings & Loan Association of Dallas, 567 S.W.2d 550 (Tex.Civ.App.—Tyler 1978, writ ref’d n. r. e.).

We have considered all points of error, and all are overruled.

Judgment of the trial court is affirmed.


author: BROWN, Justice.

text:
    TRANSAMERICA INSURANCE COMPANY OF TEXAS, Appellant, v. PRICE CONSTRUCTION, INC., et al., Appellees.
    No. 5311.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 22, 1979.

      Rodney W. Satterwhite, Midland, for appellant.
    Drew Mouton, Big Spring, for appellees.
   BROWN, Justice.

Transamerica Insurance Company of Texas attempts to appeal an order overruling its plea of privilege. Price Construction, Inc. and A. A. Price, individually, do not contest appellant’s request for extension of time to file the transcript and statement of facts. The request for extension of time must be overruled, and the appeal is dismissed.

The judgment of the trial court overruling the plea of privilege was signed and entered on December 20,1978. Transamerica timely filed an appeal bond with the District Clerk and on January 24,1979, filed its motion in this court for an extension of time to file the transcript and statement of facts.

Rule 385 in part provides:

Appeals from interlocutory orders (when allowed by law) may be taken by
(a) Filing an appeal or supersedeas bond within twenty days after rendition of the order appealed from, in an amount and to be approved and conditioned as required by the rules governing appeals generally; and
(b) Filing the record in the appellate court within twenty days after rendition of the order appealed from. Provided, that upon the filing of a motion in the appellate court within such twenty-day period, or within five days thereafter, showing good cause therefor, such court may grant a reasonable extension of time in which to file such record or any part thereof.

The time limits imposed by Rule 385(b) are mandatory and jurisdictional. State v. Gibson’s Distributing Company, 436 S.W.2d 122 (Tex.1968).

The motion for extension of time filed by appellant fully complies with Rule 21c, T.R.C.P., which provides in part:

An extension of time may be granted for late filing in a court of civil appeals of a transcript, statement of facts motion for rehearing, or application to the supreme court for writ of error, if a motion reasonably explaining the need therefor is filed within fifteen (15) days of the last date for filing as prescribed by the applicable rule or rules.

We hold, however, such rule has no application in appeals from interlocutory orders. The court in Trial v. McCoy, 535 S.W.2d 681 (Tex.Civ.App.—El Paso 1976, no writ) said:

It is the holding of this Court that Rule 21c does not apply to transcripts and statement of facts filed under Rule 385,

Cf. State ex rel. Watkins v. Morgan, 555 S.W.2d 217 (Tex.Civ.App.—Waco 1977, writ ref’d n. r. e.) (Appeals in Quo Warranto Proceedings—Rule 384, T.R.C.P.).

Rule 385, T.R.C.P., sets forth a timetable specially governing appeals from interlocutory orders. When a general statute or rule and a specific statute or rule conflict, the specific controls over the general. Sam Bassett Lumber Co. v. City of Houston, 145 Tex. 492, 198 S.W.2d 879 (1947).

The twenty-fifth day from the judgment overruling the plea of privilege was Sunday, January 15, 1979. Appellant, therefore, had until Monday, January 16,1979, to file its motion. The motion requesting the extension was eight days late. We have no jurisdiction to grant the motion or to consider the appeal. Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148 (1952).

The motion for extension of time to file transcript and statement of facts is overruled. Since the transcript has not been timely filed, this appeal is dismissed for want of jurisdiction.


author: STEPHENSON, Justice. STERNBERG, Justice,

text:
    Phillip Ray MOORE, Movant, v. Linda A. MOORE, Respondent.
    Supreme Court of Kentucky.
    Jan. 16, 1979.
    Rehearing Denied March 20, 1979.
    J. D. Buckman, Jr., Shepherdsville, for movant.
    Glay E. Maggard, Munfordville, for respondent.
   STEPHENSON, Justice.

In a divorce proceeding the trial court awarded custody of the parties’ five-year-old daughter to the father, movant. The Court of Appeals reversed the trial court. We granted discretionary review and affirm the judgment of the Court of Appeals.

The record on the custody proceedings is replete with evidence concerning both parties’ romantic conduct, especially that of the respondent. The only evidence argued by the parties is testimony admitted over the objection of the respondent concerning a trip out of the state with a married man. The respondent admitted to sexual intercourse during this trip of several days. There is nothing in the record to suggest this conduct in any way affected the respondent’s relationship with the child or that the child was aware of this illicit relationship.

It is apparent from the record that this conduct of the respondent was the principal factor in the decision of the trial court awarding the custody to the movant.

As observed by the Court of Appeals, the record established that both parties were equally fit to have custody of the daughter if the evidence of this instance of illicit sexual behavior is excluded.

We agree with the Court of Appeals that the judgment of the trial court should be reversed.

KRS 403.270 provides:
“(1) The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:
(a) The wishes of the child’s parent or parents as to his custody;
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interests;
(d) The child’s adjustment to his home, school, and community; and
(e) The mental and physical health of all individuals involved.
“(2) The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.”

The commissioners’ note to this section (402) of the Uniform Marriage and Divorce Act, adopted by the General Assembly in KRS 403.270, comments on (2) as follows:

“The last sentence of the section changes the law in those states which continue to use fault notions in custody adjudication. There is no reason to encourage parties to spy on each other in order to discover marital (most commonly, sexual) misconduct for use in a custody contest. This provision makes it clear that unless a contestant is able to prove that the parent’s behavior in fact affects his relationship to the child (a standard which could seldom be met if the parent’s behavior has been circumspect or unknown to the child), evidence of such behavior is irrelevant.”

The only conclusion to be drawn from KRS 403.270(2) when read with the note of the commissioners is that there must be proof that the sexual misconduct affects the relationship of the parent to the child; otherwise, the evidence of such misconduct is irrelevant and should not be admitted into evidence. Here there is no showing or even a suggestion that the child was aware of respondent’s misconduct or that the relationship of the child and the respondent was in any way affected by this incident.

The testimony should have been excluded, and without this testimony the parties are in substantially equal positions with regard to fitness to have custody of the child. In this situation, the natural preference for the mother is in the best interest of the child. Casale v. Casale, Ky., 549 S.W.2d 805 (1977).

This disposition is simply following the legislative mandate as expressed in KRS 403.270.

The judgment of the Court of Appeals is affirmed.

Full court sitting. CLAYTON, LUKOW-SKY, REED, and STEPHENSON, JJ., concur. STERNBERG, J., files a dissent in which PALMORE, C. J., and AKER, J., join.

STERNBERG, Justice,

dissenting.

The record reflects that the trial judge heard the testimony of 17 witnesses, consisting of 94 pages, before awarding temporary custody of the infant to her father. The trial court was favored with the depositions of 17 witnesses, consisting of 182 pages, before making an award of permanent custody to the father.

Linda and Phillip lived and operated a restaurant in Mount Washington, Kentucky. The testimony pertinent to the issue discloses, and the trial judge was entitled to believe, that a year or two prior to the filing of this action Linda spent some time in a motel room with a male companion, after which he and she went on a date with another couple; that on one occasion Linda was seen kissing Tommy Haney in the restaurant and on at least two occasions they were in the men’s restroom of the restaurant for 15 to 20 minutes with the lights out; that for several months Linda had become careless in the preparation of meals for Danielle; that the respondent inflicted unusual and painful discipline on Danielle by pulling her hair and with a hair brush to her buttocks; that on one occasion respondent took Danielle with her and left movant for a week or so, with only a letter to movant saying she had to get away for awhile; that on the Saturday night of her recent venture she wrote movant that she was going to French Lick, Indiana, and didn’t know when she would be back, knowing at that time that she was not going to French Lick but to the Smokey Mountains. So while Danielle was spending the night with her maternal grandmother and mov-ant was at home, the respondent closed the restaurant about midnight, took part of the receipts of the day and she and Tommy left town on his motorcycle. During the trip they spent each day and night together. Not once did she telephone home to inquire of the baby or of Phillip. Danielle is very fond of her father and he in turn shows the same affection for her.

Counsel for respondent argues as if the week-long motorcycle trip which his client made with Tommy was her only fault. If that were so, there would be no dissent on the part of this writer. That is not, however, the situation. The record reflects that the motorcycle escapade was only one of many acts of indiscretion which were brought to the attention of the trial court.

The concern of this court is the effect that the conduct of Linda will have on the welfare of her daughter. Danielle’s life is at stake. Argumentatively, it has been said that a prostitute mother can so conduct herself that her profession not only will not be known to her child but her conduct may be so inconspicuous and tactful as not to cast a reflection on the child. This argument, if applied indiscriminately, fails to take into account the social classes of our communities. In a metropolitan center it may be argued with some possibility of being true, but not in small communities where everyone knows of the “doings and carryings on” of everyone else. In other words, respondent may get by with it in a large town, but not in a small town. It doesn’t take much gossip about the clandestine conduct of a mother to affect and stigmatize her guiltless child. “As mother, as daughter” is not necessarily true. It is more likely to be true, however, where the wag is freely flowing.

Our review is limited to the question of whether the action of the trial judge in awarding custody of Danielle to Phillip was clearly erroneous. I do not think it was.

I would reverse the majority opinion of the Court of Appeals and affirm the judgment of the circuit court.

PALMORE, C. J., and AKER, J., join in this dissent.


text:
    Constance Patricia EDWARDS, Movant, v. George Patrick EDWARDS, Respondent.
    Supreme Court of Kentucky.
    Feb. 6, 1979.
    Quinn F. Pearl, Jr., Pearl, Pearl & Pearl, Radcliff, for movant.
    Jon E. Rickert, Elizabethtown, for respondent.
   OPINION AND ORDER

The motion of Constance Patricia Edwards for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered September 29, 1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Moore v. Moore, Ky., 577 S.W.2d 613 (1979).

All concur.


author: PALMORE, Chief Justice.

text:
    Acey ROYCE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 20, 1979.

      Jack Emory Farley, Public Advocate, Erwin W. Lewis, Asst. Public Advocate, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., James L. Dickinson, Asst. Atty. Gen., Frankfort, for appellee.
   OPINION AND ORDER

PALMORE, Chief Justice.

Acey Royce was convicted by the Harlan Circuit Court and sentenced to 20 years in prison for lst-degree manslaughter (KRS 507.030) and lst-degree robbery (KRS 515.-020), following which he appealed the judgment to this court as a matter of right. Const. Sec. 110(2)(b). On January 1, 1979, during the pendency of the appeal but before it had been scheduled for argument, Royce died. His counsel, the Public Advocate, thereupon moved that the judgment of the circuit court be vacated with directions that the indictment be dismissed as void or, in the alternative, that proceedings on the appeal continue as if the appellant were still living.

The motion is denied for the elementary reason that death ends the relationship of attorney and client and the Public Defender therefore has neither authority nor standing to speak for the dead man. Nor, indeed, does anyone else.

Death of a defendant in a criminal proceeding necessarily renders the case moot except insofar as a judgment of conviction already entered against him might affect the rights of other persons. The effect upon others of a judgment from which an appeal has been taken and is pending at the time of death is a question that need not be decided unless and until it arises, and if it never arises there is no good reason why it should be decided in the abstract. The fact of the conviction, whether it be regarded as legally final or not, is history, and as such it cannot be expunged. What meaning and effect it may have at some other time and place is not for the court to determine here and now. “Sufficient unto the day is the evil thereof.”

We do not choose to follow, distinguish, or analyze Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971), or the other federal decisions pertaining to similar cases in the United States courts, and we disapprove the decision of the Court of Appeals in Robinson v. Commonwealth, Ky.App., 572 S.W.2d 606 (1978).

The appeal is dismissed sua sponte.

All concur.

      . Matthew 6:34 (King James)


author: HAYES, Judge.

text:
    COMMONWEALTH of Kentucky ex rel. Robert F. STEPHENS, Attorney General, Appellant, v. Tom D. ISAACS, Individually d/b/a Isaacs Properties, and Suburban Acres, Inc., Appellees.
    Court of Appeals of Kentucky.
    Opinion Rendered Jan. 19, 1979.
    As Modified Feb. 23, 1979.
    Robert F. Stephens, Atty. Gen., Robert V. Bullock, Asst. Atty. Gen., Frankfort, for appellant.
    William A. Young, Frankfort, for appel-lees.
    Before HAYES, HOWERTON and LESTER, JJ.
   HAYES, Judge.

The Commonwealth of Kentucky, on relation of its Attorney General, sought injunc-tive relief in Franklin Circuit Court enjoining the appellees from evicting tenants of appellees in retaliation for the tenants writing letters of complaint in order to effectuate corrections of what the tenants believed to be unsafe, unhealthy and improper conditions at the apartment complex where they resided. The alleged practice of appellees is sometimes referred to as “retaliatory eviction”.

The complaint further sought injunctive relief to prevent appellees from failing to return security deposits to residents who vacate appellees’ premises, and a civil penalty against appellees for violation of KRS 367.170, the Kentucky Consumer Protection Act.

The appellees filed a motion to dismiss the complaint on the basis that it failed to state a cause of action, that the Attorney General was without standing to maintain the action, and that KRS 367.170, under which the action was brought, is unconstitutional.

The trial court, based upon an affidavit by appellee Isaacs that most, if not all, the residents who had complained had since vacated the premises, entered a judgment dismissing the action as being moot.

Several issues have been raised by the parties on appeal. This Court, however, being one of error and not one of original jurisdiction, need decide only the question involving mootness. Tipton v. Brown, 273 Ky. 496, 117 S.W.2d 217 (1938).

As we view the record in this case in light of KRS 367.170 and KRS 367.190, the Commonwealth was seeking an injunction against appellees to prohibit the use of unfair practices against their tenants in the form of retaliatory evictions. By declaring the case moot, the trial court never decided any issue in the case. We agree with appellant and the cases cited by him. In State v. Ralph Williams N.W. Chrysler Plymouth, Inc., 82 Wash.2d 265, 510 P.2d 233 (1973), the Washington Supreme Court, in interpreting that state’s consumer protection law, stated at 238:

Mootness exists in the issuance of injunctions only where events make it absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.

And in Americans United for Separation of Church and State v. Board of Education of Beechwood Independent School District, 369 F.Supp. 1059, 1061 (E.D.Ky.1974) the court held that “a defense based on mootness is not viable where the parties would be free to resume challenged conduct in the absence of a substantive determination.”

No substantive determination has been made whether appellees are in fact engaging in unfair practices under KRS 367.170. Until that determination has been made and appropriate action has been taken by the court, the case is not moot.

The judgment of the lower court is reversed and the cause is remanded for further proceedings consistent with this opinion.

All concur.


author: WHITE, Judge.

text:
    David Thomas WILSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 9, 1979.

      James M. Crawford, Berry, Floyd & Highfield, Carrollton, for appellant.
    Robert F. Stephens, Atty. Gen., Elizabeth E. Blackford, Asst. Atty. Gen., Frankfort, for appellee.
    Before WHITE, GANT and WINTER-SHEIMER, JJ.
   WHITE, Judge.

This appeal contests the validity of a trial court order revoking probation and fixing punishment when no original judgment or sentence had been imposed and only a probation order had been entered, which failed to recite the term of probation.

Appellant, David Thomas Wilson, entered a plea of guilty on March 8, 1978, to Indictment # 77 — 18, charging him with theft by unlawful taking. The only order entered on this plea was a conditional order of probation which set no time period. The transcript of this proceeding reveals that the trial court mentioned a five-year probationary period, and appellant testified at a June 1,1978 hearing that he understood the probationary period to be a term of five years.

On June 1,1978, appellant again appeared before this same trial court and entered guilty pleas to Indictments # 78-CR-046 and # 78-CR-047, charging him with third degree burglary. The trial court found the appellant guilty on both charges and sentenced him to two years confinement in the reformatory on each charge, with sentences to run concurrently. The Carroll County Probation Officer then made a motion that appellant’s probation on Indictment # 77— 18 be revoked.

Appellant’s counsel objected, by written and oral notice, to this revocation on various grounds, which comprise this appeal. The trial court overruled the motions and entered an order revoking probation. In addition, the trial court ordered a nunc pro tunc order be entered finding appellant guilty of the charge in Indictment # 77 — 18 and listing the probationary term to be five years.

Appellant alleges the trial court’s orders were improper on three grounds:

(1) the trial court exceeded its statutory authority;
(2) the trial court lacked jurisdiction to revoke probation and fix punishment because of the delay in entering a written judgment of conviction; and
(3) the trial court violated the constitutional provisions of double jeopardy, speedy trial and due process.

A plea of guilty, if knowingly made, is equivalent to a conviction. Kotas v. Commonwealth, Ky., 565 S.W.2d 445, 447 (1978), citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Appellant contends that once a plea is entered, the Kentucky Penal Code [specifically KRS 532.030(3) and KRS 533.020(1)], requires punishment to be fixed speedily after conviction and before probation is considered.

The two relevant provisions follow.

KRS 532.030(3) states:
When a person is convicted of an offense other than a capital offense or Class A felony, he shall have his punishment fixed at:
(a) A term of imprisonment authorized by this chapter; or
(b) A fine authorized by KRS chapter 534; or
(c) Both imprisonment and a fine unless precluded by the provisions of KRS chapter 534.
KRS 533.020(1) provides:
When a person who has been convicted of an offense or who has entered a plea of guilty to an offense is not sentenced to imprisonment, the court shall place him on probation if he is in need of the supervision, guidance, assistance or direction that the probation service can provide. Conditions of probation shall be imposed as provided in KRS 533.030, but the court may modify or enlarge the conditions or, if the defendant commits an additional offense or violates a condition, revoke the sentence at any time prior to the expiration or termination of the period of probation.

Appellant argues that these statutes place a duty on the trial court to make a determination of punishment or sentence within a reasonable time after the guilty plea is accepted, and then consider probation. Absent these determinations, later proceedings which attempt to revoke probation and impose punishment are invalid. We agree.

It is quite apparent from the record that the trial court recognized the error in this case when it entered a nunc pro tunc order some three months later attempting to correct such error. We feel a nunc pro tunc order is not the proper remedy for correcting an error of this nature. The order may be used to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken. Benton v. King, 199 Ky. 307, 250 S.W. 1002 (1923).

Having concluded that the Carroll Circuit Court’s procedure was improper, we face the question of whether the court can now impose sentence after revocation of probation. RCr 11.02(1) provides “. [the] sentence shall be imposed without unreasonable delay.” If a delay is unreasonable, a court may lose jurisdiction to impose sentence. Green v. Commonwealth, Ky., 400 S.W.2d 206 (1966). We conclude that any delay in the fixing of penalty which permits the intervention of subsequent circumstances that may change the outcome or give rise to suspicion as to the severity of penalty imposed at such later time is an unreasonable delay under RCr 11.02(1). In such instances the benefits of a nunc pro tunc order do not attach. The protection afforded by RCr 11.02 is not only a guarantee of the defendant’s right to a speedy trial, but also to preclude the additional weight of subsequent offenses being considered in adding to the penalty of the former offense. In light of the facts in this case, we feel there has been unreasonable delay.

For the foregoing reasons, the judgment is reversed.

All concur.


author: Bardgett, Judge.

text:
    STATE of Missouri, Respondent, v. James Edward KING, Appellant.
    No. 60845.
    Supreme Court of Missouri, En Banc.
    Feb. 13, 1979.
    Rehearing Denied March 13, 1979.
    Stuart A. Cofman, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, III, Daniel F. Lyman, Asst. Attys. Gen., Jefferson City, for respondent.
   Bardgett, Judge.

This cause was transferred to this court upon order of the Missouri Court of Appeals, Eastern District, for the purpose of reexamining the existing rule as set forth in Notes on Use under MAI-CR 6.02 which requires that murder in the second degree and manslaughter be submitted to the jury whenever first degree murder is submitted by MAI-CR 6.02. Jurisdiction is in this court pursuant to Supreme Court Rule 83.02 and art. V, sec. 10, Mo.Const., as amended 1970.

Defendant appeals from a conviction by a jury of murder in the first degree and the resultant life sentence imposed by the court pursuant to the second offender act. The murder took place on September 22, 1975, which is prior to the effective date of the capital murder law of September 28, 1975.

Because appellant does not raise the issue of insufficiency of the evidence, a brief statement of the facts will suffice. On the afternoon of September 22,1975, the victim and another employee left work and proceeded to a Baskin-Robbins ice-cream parlor in the City of St. Louis. The victim entered the establishment while the fellow employee remained in the car which was parked in front of the parlor. A man identified as defendant parked his car on a side street adjacent to the parlor, removed a gun from the dashboard, and exited the car leaving the motor running. The man entered the parlor and walked directly to within a few feet of the victim who gasped when she saw him. The man fired three times, killing the victim, who was defendant’s estranged wife.

Defendant was identified by the victim’s fellow employee and by two store customers. Defendant had an alibi defense and presented witnesses who testified that he was in Illinois with them at the time of the killing.

Following the close of the evidence, the court refused to give second-degree and manslaughter instructions “because it appears to the Court under the evidence in this case that the defendant is either guilty of that charge or he’s not guilty of anything.” (Tr. 309). Only one issue is raised on appeal, the failure of the trial court to instruct the jury on second-degree murder and manslaughter.

On appeal, the Court of Appeals, Eastern District, held reversible error was committed but stated:

“The evidence warranted only one conclusion — the victim was executed in cold blood deliberately, willfully, with premeditation and malice aforethought. The only contested factual issue was whether defendant was the killer. Establishment of the killing established also the circumstances under which it occurred, and the evidence establishing one also established the other. Disbelief of some or all portions of some or all of the witnesses’ testimony could possibly lead to a conclusion that no homicide occurred but such disbelief could not affect only the quality of the killing. Only by the wildest conjecture and speculation is it possible to infer, or more properly, imagine, facts which might demonstrate a lack of deliberation or premeditation.
“. . . While it may be true that the vast majority of homicide cases contains evidence which warrants ‘instructing down’ and that trial judges should be most liberal in finding evidentiary support for such instructions, there are cases where only one grade of homicide is established by the evidence. Pattern instructions must not preclude properly instructing in those cases. This is such a case.”

The Court of Appeals recognized that the Notes on Use to Missouri Approved Instructions mandated “instructing down” in this case but strongly disagreed with that mandate, thus ordering the cause transferred to this court.

The difficulty with the Court of Appeals’ reasoning is that it implies that if the jury found that defendant did in fact kill the deceased the jury would somehow be compelled by law to conclude defendant was guilty of first degree murder — that defendant (a) intended to kill her and (b) considered taking her life and reflected upon the matter coolly before shooting her. Or, put another way, it would appear that the only issue the jury would have to decide in such a case is that the defendant killed the deceased and the judge could then enter a judgment of guilty of murder in the first degree.

First degree murder was submitted by using MAI-CR 6.02. Had the defendant so requested, he could have had an instruction conversing the “intent to kill” element and/or the “coolly reflecting” element. See MAI-CR 3.02 et seq. and Notes on Use. Under such an instruction, if the jury failed to find the defendant reflected upon the matter coolly, etc., the jury would be instructed to return a not guilty verdict, even though they found that the defendant killed the deceased and intended to do so when he shot her. The notes on use requiring the submission of the lesser degrees of homicide recognize that a jury has the right and power, by way of example, to not find one of the mental elements of first degree murder yet still find the defendant intended to and did kill the deceased and is therefore guilty of second degree murder. The same applies to a jury’s right and power to not find that the defendant intended to kill the deceased but to only find the defendant killed the deceased and is guilty of manslaughter.

The use of these homicide instructions in accordance with the Notes on Use tends to insure that a person who is guilty of second degree murder will not be totally acquitted merely because the jury fails to find that the defendant “reflected upon the matter coolly and fully before shooting her.” This will occur because the jury, after failing to find the “reflected on the matter, etc.” element in the affirmative, will be afforded the opportunity to find the defendant guilty of murder second degree upon finding defendant intended to kill and did kill the deceased. It also affords the defendant the opportunity to have the jury consider the lesser homicide offenses. Another function it performs is that it recognizes the broad power reposed in juries by our society.

For a more detailed analysis of the problem and the reasons underlying this court’s adoption of the requirement that lesser included homicide offenses be submitted see State v. Stapleton, 518 S.W.2d 292 (Mo.banc 1975).

We have considered respondent’s arguments. They are similar to arguments which took place preceding the adoption of MAI — CR 6.02, note 6, and are not persuasive. The mental elements constituting the various grades or degrees of homicide are for the jury to determine, and it is only the jury that has the authority to decide upon their presence or absence in any given case. The judgment is therefore reversed and the cause remanded for new trial.

MORGAN, C. J., DONNELLY, REND-LEN, SEILER and SIMEONE, JJ., and FINCH, Senior Judge, concur.

WELLIVER, J., not participating because not a member of the court when cause was submitted.

      . Notes on Use to MAI-CR 6.02, Note 6, provides: “Additional instructions both on second degree murder (MAI-CR 6.06) and manslaughter (MAI-CR 6.08) must be given in all cases where the pleadings and evidence warrant the submission of first degree murder under MAI-CR 6.02. See V.A.M.S., Sections 556.220, 556.-230 and 559.030. This does not relieve the trial court of the responsibility for determining the highest grade of homicide supported by the pleadings and the evidence. If the pleadings or the evidence do not warrant the submission of first degree murder under MAI-CR 6.02 but both pleadings and evidence do warrant submission of second degree murder under MAI-CR 6.06, the jury must be instructed both upon murder in the second degree (MAI-CR 6.06) and manslaughter (MAI-CR 6.08). If the pleadings or the evidence warrant submission only of manslaughter under MAI-CR 6.08, that will be the only grade of homicide submitted.”

      . The same rule applies to homicides committed after May 25, 1977. See MAI-CR 15.00 3.d.


author: RENDLEN, Judge. DONNELLY, Judge,

text:
    Henry Earl WEATHERS et al., Appellants, v. ROYAL INDEMNITY CO., a corporation, Respondent.
    No. 60600.
    Supreme Court of Missouri, En Banc.
    Feb. 13, 1979.
    Rehearing Denied March 13, 1979.

      Samuel A. Goldblatt, William R. Kirby, St. Louis, for appellants.
    Ben Ely, Jr., Brent W. Baldwin, St. Louis, for respondent.
   RENDLEN, Judge.

This equitable garnishment action was brought by Henry and Bernice Weathers against Royal Indemnity Company (Royal) to collect amounts due on their unsatisfied judgments for personal injuries obtained against Elliott Davis, Jr. (Davis). Plaintiffs’ base their claims on a contract of insurance issued by defendant insuring an automobile owned by The Hertz Corporation (Hertz) and used in its rent-a-car business. The general question is whether Davis, as driver of the Hertz automobile “rented” to one Davis A. Walker, was an additional insured under the omnibus clause of the insurance policy issued by Royal on Hertz’s fleet of rental vehicles. It will be seen that the omnibus clause extended liability coverage to any person “using” the insured vehicle provided the “actual use” was “with permission of the named insured,” i. e. Hertz.

Judgment was entered for defendant in the garnishment action and plaintiffs appealed contending the trial court’s findings lacked evidentiary support and that the court misapplied the law. The Missouri Court of Appeals, St. Louis District (now the Eastern District), affirmed, but in view of an apparent conflict between its opinion and that of the Springfield District (now the Southern District), in Farm Bureau Mut. Ins. Co. v. Broadie, 558 S.W.2d 751 (Mo.App.1977), transferred the cause under Rule 83.02 that we might reexamine the existing law. We decide the case as if it were here on original appeal. Mo.Const., art. V, § 10.

The underlying negligence action flowed from certain occurrences commencing December 30, 1971. On that day Walker rented an automobile from a Hertz rent-a-car office on the Washington University campus in St. Louis where he was a student. He executed a written rental agreement tendered by Hertz at the time he obtained the car and on the afternoon of January 1, 1972, drove it to the home of his close friend, Elliott Davis, Jr. The young men, then on semester break from their respective colleges, used the car for social purposes. The next day they decided to drive to a mutual friend’s house and because Davis was more familiar with the way, Walker permitted him to drive while he, Walker, rode in the front seat. En route they collided with an automobile in which Henry Earl Weathers was a guest. Immediately after the collision Davis and Walker agreed to say that Walker had been the driver, apparently in the understanding that this was necessary for insurance coverage. However, when a police officer arrived at the scene and questioned them, Davis admitted he had been driving.

Mr. and Mrs. Weathers sued Davis and Walker for damages occasioned by the accident and at the close of plaintiffs’ case, judgment was entered in favor of Walker from which plaintiffs have appealed. Royal had provided Walker defense counsel subject to a reservation of rights. On the other hand, Royal refused Davis’ demand that it provide his defense in that suit, and plaintiffs recovered judgments (now final) against Davis in the amount of $100,000 for Henry and $10,000 for Bernice Weathers. Plaintiffs thereafter commenced this garnishment proceeding.

We consider first the applicable statutory law. Section 308.190.2(2), RSMo 1969, mandates the inclusion of an omnibus clause broadening coverage in every auto liability policy issued to comply with Missouri Safety Responsibility Law and requires that it protect not only the named insured but “any other person using any such motor vehicle with the express or implied permission of such named insured.” (Emphasis ours.) Such an omnibus clause, evidently designed to comply with the referenced statute was included in Royal’s policy here, affording coverage for the named insured (Hertz) and for “any person while using [vis-a-vis operating] the automobile . . . provided the actual use [vis-a-vis operation] of the automobile is with the permission of the [named insured.]” Critical to the issues under consideration, the omnibus clause speaks broadly to the use of the automobile, not narrowly to its operation. Any insurance contract providing less would be subject to challenge for non-compliance with § 303.190.

The manifestation of public policy found in the Motor Vehicle Safety Responsibility Law, particularly § 303.190.2(2), supports a liberal interpretation of automobile liability insurance omnibus clauses. In Winterton v. Van Zandt, 351 S.W.2d 696, 700-01 (Mo.1961), this Court noted,

Chapter 803 . . . requires that policies issued under § 303.170 as proof of financial responsibility shall insure ‘any other person, * * * using any such motor vehicle s * * with the express or implied permission of such named insured.’ The provisions of that act are indicative of the public policy of this state to assure financial remuneration to the extent and under the conditions therein provided for damages sustained through the negligent operation of motor vehicles upon the public highways of this state not only by the owners of such automobiles but also all persons using them with the owners’ permission, express or implied.

Additionally, Royal in recognition of the need to comply with statutes such as Missouri’s Motor Vehicle Safety Responsibility Act provided in “condition 9” of the policy of insurance issued on Hertz’s fleet of rental cars,

9. Financial Responsibility Laws — Coverages A [Bodily Injury Liability] and B [Property Injury Liability]. When this policy is certified as proof of financial responsibility for the future under the provisions of the motor vehicle financial responsibility law of any state or province, such insurance . . . shall comply with the provisions of such law which shall be applicable with respect to any such liability .

In this connection the Court of Appeals has declared, “Omnibus coverage provisions are intended to extend, not restrict, coverage afforded and such intention is salutary.” Hauser v. Hill, 510 S.W.2d 765, 768 (Mo. App.1974). Such extension is accomplished by enlarging the number and variety of insured classes. Missouri law favors a liberal construction of auto liability insurance policies and as stated in Giokaris v. Kincaid, 331 S.W.2d 633, 639 (Mo.1960), quoting Varble v. Stanley, 306 S.W.2d 662, 665 (Mo.App.1957), “An insurance policy, being a contract designated to furnish protection, will, if reasonably possible, be construed so as to accomplish that object and not to defeat it.” See also Meyer Jewelry Co. v. General Ins. Co. of America, 422 S.W.2d 617, 623 (Mo. 1968), wherein the court stated, “We follow a construction favorable to the insured wherever the language of a policy is susceptible of two meanings, one favorable to the insured, the other to the insurer.” This principle of construction was more fully discussed in Brugioni v. Maryland Casualty Co., 382 S.W.2d 707, 710-11 (Mo.1964) as follows: “[A]n insurance policy being a contract designed to furnish protection will, if reasonably possible, be interpreted so as to accomplish that object and not to defeat it, and, if terms of the contract are susceptible of two possible interpretations and there is room for construction, the provisions limiting or cutting down on the coverage of the policy, or avoiding liability therefor, will be construed most strongly against the insurer.” In Sibothan v. Neubert, 168 S.W.2d 981, 984 (Mo.App.1943), the Court of Appeals, dealing with an automobile liability omnibus clause stated, “It is of course true that the ‘additional insured’ clause was written in the policy for the primary purpose of extending not limiting liability.”

Mindful then that the omnibus clause meets the statutory mandate by extending coverage beyond the named insured (and resident spouse) to permittees using the motor vehicle with the insured’s express or implied consent, we examine the use here involved and determine if it was permitted by the rental agreement and thus protected by Royal’s policy.

It cannot be seriously questioned that Walker’s rental of the car was for a broad, almost unfettered use. The due date for return of the car was left blank in the rental agreement, indicating an unlimited term, with rentals based on a daily charge for the days the car was retained. There were no mileage restrictions and the first two hundred miles were free though a charge of eight cents per mile was made for travel thereafter. No limitations appear as to where the car could be driven except in Paragraph 8, which stated that proof of coverage and vehicle ownership were required before entering Canada and “coverage is void in Mexico.” This is the rental agreement’s only reference to an act, the commission of which would void liability insurance. Paragraph 8 further provides that because “coverage is void in Mexico,” the “[c]ustomer must obtain Lessor’s written authorization and purchase special insurance before entering Mexico.” The ve-hide could be used for any lawful purpose of the customer limited by the provisions of Paragraph 6 that it should not be “used” (a) to carry persons or property for hire, (b) to propel or tow other vehicles or objects, or (c) for racing, tests or contests. Nothing in the testimony, briefs or oral argument suggests these limitations on use were violated.

On the other hand, Paragraph 7 sets forth restrictions as to the “operation” or driving of the vehicle.

7. Vehicle shall NOT be operated by any person except Customer and the following Authorized Operators, each of whom must be duly qualified and licensed to drive and must have received Customer’s advance permission:
(a) persons of full age (21 years) who are members of the immediate family of Customer and permanently residing in Customer’s household;
(b) the employer, partner or an executive officer of Customer;
(c)a regular employee of Customer.

Davis was operating the car with the permission of his friend Walker, the customer, but was not a member of the class of operators specified in subparagraphs (a), (b) or (c) above.

Recent cases have distinguished between using or actual use and operation of a vehicle. Use is said to involve its employment for some purpose or object of the user. Operation of the vehicle, on the other hand, is said to involve the driver’s direction and control of its mechanism for the purpose of propelling it as a vehicle. As noted in Allstate, 486 S.W.2d at 43, “Although one who operates an automobile obviously uses it, one can use an automobile without operating it.” In this context it is apparent that Walker, the customer, was using but not operating the vehicle, and Davis, at the wheel by permission from Walker, was both operating and using the vehicle at the time of the accident. In this case, presenting the question whether Davis (not Walker) is covered by the omnibus clause, the use by Walker of the vehicle is not the compelling circumstance. Our concern is whether the use or actual use of the vehicle by Davis was with the permission of Hertz.

As noted above, there can be no serious argument that the use to which the rented automobile was being put was a purpose contemplated by the parties when executing the rental agreement and thus under the terms of the omnibus clause it must be said that the named insured permitted the actual use here involved. The final consideration is whether the provision of Paragraph 7 of the rental agreement, directing that only members of certain limited classes (not including Davis) might operate the car, defeats coverage. For reasons hereinafter discussed, we believe it does not. The non-permitted act in Paragraph 7 relates to operation of the automobile not its use. The precise question presented here, had not been previously decided in reported Missouri cases until Farm Bureau Mut. Ins. Co. v. Broadie, supra, decided in 1977 by the Court of Appeals. The Court in Broadie identified the focal issue as whether the use of the vehicle, under an omnibus clause like that sub judice, extending coverage beyond the named insured to “any person . legally responsible for the use of the automobile, provided the actual use is with permission of the named insured,” 558 S.W.2d at 758, protected a driver under controlling facts, essentially the same as ours. There a named insured permitted the use of his pickup truck for social purposes by a young man named Kim (first permittee), but expressly instructed Kim not to let his friend Duane drive. The two young men proceeded in the pickup on the agreed purpose of the evening and there, as here, the pickup truck was put to a use permitted at the time of the original bailment. During the evening Kim asked Duane to drive and after he took the wheel an accident occurred. The Springfield Court considered whether the named insured’s (owner’s) admonition that Duane was not to drive frustrated coverage. Deciding it did not, the court states, 558 S.W.2d at 755,

The act forbidden here related to the operation of the pickup, not to the use which might be made of it. It is our considered opinion that because the use had been permitted, it is immaterial how the vehicle was operated. [T]he insured having given his permission for a particular use, the appellant will not be heard to complain that the operation of the vehicle in performance of the permitted use was conducted in a way forbidden by the named insured.

Authority for this position is found in Maryland Indemnity Ins. Co. v. Kornke, 21 Md.App. 178, 319 A.2d 603 (1974), where the court considered an omnibus clause identical to that before us and held that it afforded coverage to the “second permittee” under controlling facts substantially the same as those at bar. There the father, the named insured, gave his eighteen year old son broad permission to use his car, but added explicit direction not to allow anyone else to drive. Notwithstanding those instructions the son, as first permittee, allowed a friend to drive the car and while the second permittee was driving during a trip planned by the parties an accident occurred. As stated by the Maryland court, 319 A.2d at 606-07,

The question for decision, therefore, is whether in these circumstances the use of the car continued, until the time of the accident, with the permission of Kronke, Sr. [the named insured] and the effect of the express prohibition, repeatedly communicated by father to son, against allowing anyone else to drive.

Noting that the original permittee, riding in the car, was still the custodian of the instrumentality confided to his keeping, and that the second permittee was subject to his immediate direction and control, the court concluded, id. at 611:

in determining whether the operation is within the permission required by the omnibus clause ‘one must examine the total facts,’ and the facts of paramount significance respecting a clause for permitted use (as against permitted operation) do not pertain to the identity of the driver but to whether at the time of the accident the operation of the car was for a purpose germane to the permission granted, whether it was for the convenience of the named insured or the first permittee, and whether the latter was present in the car at the time of the accident.

The court also noted that this construction of permitted use under an omnibus clause is in accord with the general view of a number of cases deciding the issue of permitted use and with that stated in 7 Am.Jur.2d Automobile Insurance § 117 (1963):

The ‘general rule’ that a permittee may not allow a third party to ‘use’ the named insured’s car has generally been held not to preclude recovery under the omnibus clause where (1) the original permittee is riding in the car with the second permit-tee at the time of the accident, or (2) the second permittee, in using the vehicle, is serving some purpose of the original per-mittee. The courts generally reason that under such circumstances the second per-mittee is ‘operating’ the car for the ‘use’ of the first permittee and that such ‘use’ is within the coverage of the omnibus clause. While some courts apparently would limit this qualification of the general rule to situations where the named insured has not specifically forbidden driving by a third person, it is more generally held that operation by a third person under such circumstances falls within the protection of the omnibus clause even where such operation is specifically forbidden by the named insured.

319 A.2d at 611-12 (emphasis in original). The court further observed that because the operation of the car by the second permit-tee was for a purpose germane to the permission by father to son it was, at the very least, a convenience for the first permittee and concluded that the violation of the father’s prohibition as to operation did not preclude extension of omnibus coverage to the second permittee.

The Georgia Supreme Court in Strickland v. Georgia Casualty & Surety Co., 224 Ga. 487, 162 S.E.2d 421 (1968), held that an “actual use” omnibus clause identical to that in the case at bar extended coverage to a second permittee if such permittee had permission (express or implied) of the named insured to use the vehicle for the general purpose to be served by the vehicle under the bailment and the clause did not require permission as to operation of the automobile. There the named insured had forbidden the second permittee to drive the vehicle and the first permittee, who was present in the ear and had consented to the second permittee taking the wheel, knew of this prohibition. The court examined and rejected insurer’s argument that the policy required permission of the named insured to drive as well as to use the vehicle for the purpose of the bailment. In so doing the court stated, 162 S.E.2d at 424,

The policy, among other things, insures against obligations arising from the negligent or unlawful operation of the described vehicle. Under appellee’s contention if the named insured permitted the use of the vehicle and at the same time prohibited its negligent or unlawful operation, it would defeat the very purpose of the policy. Therefore, the ‘actual use’ of the vehicle within the meaning of the policy cannot reasonably relate to the particular manner of its operation. At most it could relate only to whether or not permission to operate the vehicle had been given. And even this would have no application to the first permittee who had been given permission to use the vehicle for a particular purpose since such authorization necessarily implies permission to operate the vehicle. Furthermore, the policy provides: ‘The purposes for which the automobile is to be used are ‘business and pleasure.’ This indicates to us that the policy is concerned with the purpose to be served by the vehicle and not its operation. If the policy intended that ‘actual use’ included the operation of the vehicle, it could have stated so plainly.

In the case before us the car was being used by Walker and Davis in the purpose for which it had been rented. Walker did not by the mere act of turning the wheel over to his companion convert the automobile to a different use.

Our holding in this case is in accord with cases collected in Annotation, 4 ALR3d 10, § 12(b) (1965). Respondent urges a contrary view and refers to cases cited in § 12(a) of the above Annotation, arguing that the use of the car by Davis and his act of driving constituted a violation of the permitted use thrusting it beyond the scope of the omnibus protection. In support of its argument respondent points to the language of Paragraph 8 of the rental agreement wherein it is stated, “[permission to use Vehicle is expressly limited by Lessor as provided in paragraph 6 and 7 hereof.” This argument is not persuasive for several reasons. First, paragraph 6 speaks only to limitations of use not here involved. As discussed above, it is clear that Davis and Walker were using the vehicle within the purposes intended by the rental agreement and not within prohibited uses set forth in subparagraphs 6(a), (b) and (c). In addition, Paragraph 7 relates only to the “operation” of the vehicle, and as previously discussed the use of the car by Davis was within the express terms and purpose of the omnibus clause. His use continued to be a permitted use protected by the policy so long as the first permittee and customer under the rental agreement was riding in the car with him and enjoying the benefits of its use within the general purpose for which the car was originally rented.

In our review of this equitable action under Rule 73.01, we conclude the trial court, in reaching its decision denying coverage, erroneously applied the law. Accordingly, the judgment is reversed.

MORGAN, C. J., BARDGETT, J., and WELBORN, Special Judge, concur.

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

SEILER, J., and FINCH, Senior Judge, dissent and concur in separate dissenting opinion of Donnelly, J.

SIMEONE and WELLIVER, JJ., not participating because not members of the Court when cause was submitted.

DONNELLY, Judge,

dissenting.

The judgment of the trial court was affirmed in the Eastern District of the Missouri Court of Appeals. I adopt, without quotation marks, a substantial portion of the opinion written there by Norwin D. Houser, Special Judge.

The determinative question here is whether Elliott Davis, Jr. was covered as an additional insured within the following definition of the term “insured” in the omnibus provision of the policy of liability insurance issued by Royal Indemnity Company to Hertz (the named insured):

“HI. Definition of insured
(a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured' includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either. * * *”

As applied to the case at hand that language translates as follows: The word “insured” includes any person while using the automobile, provided the actual use of the automobile is with the permission of Hertz.

The automobile was delivered to Walker under a printed rental agreement between Hertz and Walker, signed by the parties, providing, inter alia:

“7. Vehicle shall NOT be operated by any person except Customer and the following Authorized Operators, each of whom must be duly qualified and licensed to drive and must have received Customer’s advance permission: (a) persons of full age (21 years) who are members of the immediate family of Customer and permanently residing in Customer’s household; (b) the employer, partner or an executive officer of Customer; (c) a regular employee of Customer.
“8. Lessor provides coverage for persons using Vehicle with the permission of Lessor (and not otherwise) in accordance with the standard provisions of a Basic Automobile Liability Insurance Policy, against liability for bodily injury [stating limits] arising out of use of Vehicle. * * * Permission to me Vehicle is expressly limited by Lessor as provided in paragraphs 6 and 7 hereof. * * *. [Our emphasis.]
“10. No right of Lessor under this Agreement may be waived or modified except by a written instrument signed by the President or Vice President of Lessor or of Hertz System, Inc.”

Contrary to appellants’ contentions, there is substantial evidence to support the decision of the trial court; the judgment is not against the weight of the evidence, and the court did not erroneously apply the law.

Careful consideration of the facts in each particular case is required in determining whether there is coverage under an omnibus clause. This omnibus provision extends coverage to any person while using the automobile, provided the actual use of the automobile is with the permission of Hertz. The only evidence bearing on the question what use of the vehicle was “actually contemplated by the parties at the time of the original bailment” is to be found in the printed agreement itself.

Paragraph 6 prohibits the use of the vehicle to carry persons for hire, or to propel or tow any vehicle, trailer or other object, or in any race, test or contest, or if the vehicle is obtained by fraud or misrepresentation, or is obtained or used in furtherance of any illegal purpose.

Paragraph 7 specifically limits operation of the vehicle to Customer Walker, members of his family over the age of 21, his employer, partner, or regular employee.

Paragraph 8 recites that Hertz provides coverage for persons using the vehicle with the permission of Hertz (“and not otherwise”) and further recites that permission to use the vehicle is “expressly limited” as provided in paragraphs 6 and 7.

It is clear that Walker, the lessee from Hertz, was “using” but not operating the vehicle, and that Davis, at the wheel by permission from Walker, was both “operating” and “using” the vehicle at time of accident. In this case, involving the question whether Davis (not Walker) is covered by the omnibus clause, the use by Walker of the vehicle is not the compelling circumstance. Our concern is whether the actual use of the vehicle by Davis was with the permission of Hertz; i. e., whether Davis’ use of the vehicle at the time of accident was “one actually contemplated by the parties at the time of the original bailment.” Allstate Ins. Co. v. Hartford Accident & Indem. Co., 486 S.W.2d 38, 44 (Mo.App.1972). The statement of the question compels a negative answer. Both the insurer and the bailor had an interest in the use to which the vehicle would be put. Royal Indemnity Company, by insuring Hertz, evidently had confidence in Hertz as a risk, and in extending its assumption of risk under the omnibus clause to others the insurer had the right to restrict coverage to actual use by persons securing permission from Hertz, evidently having confidence that insured, Hertz, would only permit its vehicles to be placed in the possession and care of persons worthy of trust. The insured, Hertz, by entering into a contract of bailment with Walker, evidently had sufficient confidence in Walker to entrust its automobile to him, but in closely restricting the classes of persons permitted to use or operate the vehicle, Hertz demonstrated its lack of confidence in any others using or operating the vehicle. Both insurer and bailor had a right, for their own protection, to circumscribe the extent of and limit the risk each of them was taking, and to place strict limitations on the classes of persons authorized to operate or use the vehicle in question. The coverage of the omnibus clause did not extend to second permittees such as Davis. Only first permittees of Hertz, such as Walker, were covered by the omnibus clause. The parties to the bailment (Hertz and Walker) did not contemplate the use or operation of the vehicle by persons other than Walker, members of Walker’s family over 21 years of age, employers or partners of Walker, and Walker’s regular employees. These designated classes of persons, upon receiving Walker’s permission, and no others, were to be entrusted with Hertz’ merchandise. In violation of these strictures, and exposing both insurer and bailor to unassumed risks, bailee Walker permitted Davis to use and operate the insured vehicle. Davis was not a person actually contemplated by the parties to the bailment as within the class of eligible users. By reason of the fact that he was operating the vehicle he was devoting it to a use not permitted by and in direct violation of the bailment agreement. Davis was not one of the classes of persons to whom Walker was authorized to grant permission to drive. Nor was Davis “using” or “actually using” the vehicle with the permission of Hertz, as required under the insurance policy to activate the omnibus clause.

This is not a situation in which the consent of the named insured to the operation of the automobile by the second permittee may be implied from the prior course of conduct of the parties, or from any of the other factors so thoroughly delineated in Allstate Ins. Co. v. Hartford Accident & Indem. Co., supra, 486 S.W.2d 1. c. 44-45. A typical example of implied permission from the named insured arising out of a course of conduct is United States Fidelity & Guaranty Co. v. Safeco Ins. Co. of America, 522 S.W.2d 809 (Mo. banc 1975), which although it involved a factual situation not comparable to that existing in this case, laid down one general rule pertinent to the present inquiry, on the question whether a second permittee is covered under the usual omnibus clause, namely, that “[t]he permission [to drive the insured car] must come from the named insured, not simply from the first permittee.” 522 S.W.2d 1. c. 816. In the case here for review the permission did not come from Hertz, the named insured, but from Walker, the first permittee.

At the time of collision Walker and Davis were driving in the City of St. Louis, on the way to the home of one Shirley Townsend, a person with whom they had became acquainted while all three were attending the Upward Bound Program. Assuming that a benefit accrued to the first permittee from the operation of the vehicle on this trip, appellants are still faced with the uncontro-vertible fact that the insurance policy contains no exception authorizing a Hertz customer to permit a third person to operate the vehicle where the customer is a passenger, or where the customer is benefited by the trip. This court may not amend, change or modify the terms of the contract of insurance to extend coverage to second permittees on the basis of real or fancied benefits to first permittees. No implication of authority in the second permittee is to be drawn from these facts, because the first permittee was specifically forbidden by the rental agreement from entrusting the driving to another. Nationwide Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 209 F.Supp. 83, 86 (N.D.W.Va.1962). Davis’ operation of the car was outside the use of the vehicle permitted to Walker by Hertz. The actual use was not “in conformity with that permitted by the named insured,” and therefore coverage did not extend to Davis. Prisuda v. General Casualty Co. of America, 272 Wis. 41, 74 N.W.2d 777, 782[4] (1956). Davis was operating the car without express permission of Hertz, and without permission arising by implication from Hertz’ conduct, or from the circumstances. Walker’s right to use the vehicle “ended with his turning over the wheel of the car” to Davis contrary to the express provisions of paragraph 7 of the lease agreement. Helwig v. Esterly, 205 Pa.Super. 185, 208 A.2d 10, 12 (1965), and cases cited 1. c. 11, 12. And see Johnson v. Aetna Casualty and Surety Co., 274 So.2d 769 (La.App.1973); State Farm Mutual Auto. Ins. Co. v. Allstate Ins. Co., 255 S.C. 392, 179 S.E.2d 203 (1971); Southern Farm Bureau Cas. Ins. Co. v. Hartford Accident & Indem. Co., 255 S.C. 427, 179 S.E.2d 454 (1971); Selected Risk Ins. Co. v. Travelers Ins. Co., 287 A.2d 675 (Del.Super. 1972); Allstate Ins. Co. v. Employer’s Group Ins. Co., 18 Ohio Misc. 62, 246 N.E.2d 924 (1969).

I respectfully dissent.

      . All statutory references are to RSMo 1969, unless otherwise indicated.

      . Section 303.190.2(2) provides: “Such owner’s policy of liability insurance ... (2) Shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to limits, exclusive of interest and costs, with respect to each such motor vehicle, as follows: ten thousand dollars because of bodily injury to or death of one person in any one accident and, subject to said limit for one person, twenty thousand dollars because of bodily injury to or death of two or more persons in any one accident, and two thousand dollars because of injury to or destruction of property of others in any one accident.” (Emphasis ours.)

      .The omnibus clause defining the term “insured” states in part: “(a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.” (Emphasis ours.)

      . At another place in the rental agreement it is stated the rates “do not include gasoline” and in an adjacent rectangle these handwritten words and figures appear, “4 days $35.” This may or may not indicate a limitation on the duration of the agreement. Notwithstanding these patent ambiguities if the term of the contract was only four days, the claim arose within that period.

      . While other acts or omissions violative of the agreement would permit the Lessor (Hertz) to repossess the automobile, it is only in connection with driving into Mexico that coverage is expressly voided. The rental agreement, paragraph 2, states inter alia that “Lessor reserves the right to repossess Vehicle at any time without demand at Customer’s expense if Vehicle is used in violation of this Agreement.” From this it may reasonably be argued that while Walker’s having permitted Davis to drive the vehicle was violative of the rental agreement’s paragraph 7, thereby triggering Hertz’s right to repossess the vehicle under paragraph 2, if Hertz had intended such violation would void coverage, it could have expressly so stated but it did not. Though we do not regard this argument determinative, it supports the conclusion we hereinafter reach that by a liberal construction of the policy’s omnibus clause favoring extension of coverage, it may not be said Davis’ use of the vehicle was a non-permitted use under the language of the omnibus clause and rental agreement.

      . The text of Paragraph 6 is as follows:
      6. Vehicle shall NOT be used:

      (a) to carry persons or property for hire;
      (b) to propel or tow any vehicle, trailer or other object;
      (c) in any race, test or contest.
      If Vehicle is obtained from Lessor by fraud or misrepresentation or is obtained or used in furtherance of an illegal purpose, all use of Vehicle is WITHOUT LESSOR’S PERMISSION. (Emphasis added.)

      . Farm Bureau Mut. Ins. Co. v. Broadie, 558 S.W.2d 751 (Mo.App.1977), and Cameron Mut. Ins. Co. v. Bower, 558 S.W.2d 226 (Mo.App. 1977).

        . Allstate Ins. Co. v. Hartford Accident & Indem. Co., 486 S.W.2d 38, 43-44 n. 5 (Mo.App. 1972), provides a pertinent discussion of the terms “use” and “actual use” in omnibus clauses: “Some courts have thought that any attempt ‘to place different meanings on the two terms [‘use’ and ‘actual use’] creates a distinction without a difference . . . .’ Metcalf v.

        Hartford Accident & Indemnity Co., . [176 Neb. 468] 126 N.W.2d [471] at 474(1). Accord: Gronquist v. Transit Casualty Co., . . . [105 N.J.Super. 363] 252 A.2d at [232] 236. The more logical view supported by the weight of authority would seem to be that the words ‘actual use’ are employed to make it clear that the use made of the vehicle at the time of accident must have been one actually contemplated by the parties at the time of the original bailment. Employers Mutual Casualty Co. v. Poe, Miss., 191 So.2d 541, 545(1); Melvin v. American Automobile Ins. Co., 232 Md. 476, 194 A.2d 269, 271; Gulla v. Reynolds, 151 Ohio St. 147, 85 N.E.2d 116, 120; 45 C.J.S. Insurance § 829, 1. c. 902, and cases collated in note 50. But since neither ‘use’ nor ‘actual use’ is synonymous with, or has the limited and restricted meaning of, ‘operate’ or ‘actual operation,’ the distinction or difference in meaning, if any, between ‘use’ and ‘actual use’ is of no importance here.” So too in the case at bar the distinction (if any) is immaterial.

      . Appellant also urges reversal for reason that the policy of insurance issued by Royal for the Hertz Corporation shows on its face that the insured’s occupation as “DRIVERLESS CAR RENTAL” and because neither Hertz as the named insured nor its employees will be the auto’s operator during the time of its principal use as a rental vehicle, that the customer occupies the usual position of the named insured during the period of bailment under the rental agreement and should be regarded as standing in the shoes of the named insured. Thus it is only the permission of the customer that should be required to bring a permittee such as Davis within the scope of the omnibus clause. While this argument might have merit, we do not decide the point in reaching our decision herein.