text:
    RANGER INSURANCE COMPANY, Plaintiff-Appellant, v. John Lee SILVERTHORN et al., Defendants-Respondents.
    No. KCD 28474.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.

      Max W. Foust, G. Spencer Miller, Morris, Foust, Beckett & Ponick, Kansas City, for plaintiff-appellant.
    B. B. Turley, Wesner, Pine & Turley, Edgar S. Carroll, Warrensburg, for respondents.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Declaratory judgment action by issuer of aviation liability insurance policy to determine its obligation to defend and indemnify a renter from the named insured of an aircraft. Circuit Court held that the renter was an insured under the policy. Insurer appealed.

Ranger Insurance Company, a New York corporation with its principal administrative office in Texas, issued its policy of aviation liability insurance, for a term of one year from August 23,1969, to H.T.P. Enterprises of Holden, Missouri. Aircraft scheduled under the policy included a 1968 Cessna 177. The Declarations stated that the aircraft covered will be “principally tied out” at Holden, Missouri Airport. The “Purpose(s) of Use” provision of the Declarations called for the use only for purposes “indicated by ‘X’.” A typewritten “X” was inserted in the box adjacent to purpose “(c) ‘Limited Commercial.’ The term ‘Limited Commercial’ is defined as including all the uses permitted in (a) and (b) above [“Pleasure and Business” and “Industrial Aid”] and including Student Instruction and Rental to pilots but excluding passenger carrying for hire or reward.”

On July 19, 1970, H.T.P. Enterprises, Inc. rented the Cessna 177 to John Lee Silvert-horn, a licensed pilot. While flying the plane near Elkton, Hickory County, Missouri, with Patricia and Ronald Kephart as passengers, not carried for hire, an accident occurred which resulted in injuries to the Kepharts.

In July, 1975, the Kepharts brought suit against Silverthorn and H.T.P. Enterprises, Inc. for injuries they claimed to have suffered in the accident. Petition and summons were served on Silverthorn who transmitted them to Ranger and demanded that Ranger defend him under the policy of insurance issued to H.T.P. Ranger denied that the policy covered Silverthorn. Sil-verthorn refused to execute a non-waiver and reservation of rights agreement to Ranger. Ranger brought this action for a declaration that the policy afforded no coverage to Silverthorn.

The case was submitted on a stipulation which covered essentially the above facts. A copy of the policy of insurance was included with the stipulation. The trial court held that the policy did extend coverage to Silverthorn and this appeal followed.

The issue presented is whether or not the declaration of intended use incorporated in the policy produced an ambiguity in other terms of the policy defining persons other than the named insured to whom the benefit of the policy would be extended. Specifically, the printed provisions of the policy contained the following:

“HI. Definition of ‘Insured.’ The unqualified word ‘Insured’ wherever used in this Policy with respect to Coverage A, B, C and D, includes not only the Named Insured but also any person while using or riding in the aircraft and any person or organization legally responsible for its use, provided the actual use is with the permission of the Named Insured.

The provisions of this paragraph do not apply:

******

“(c) to any person operating the aircraft under the terms of any rental agreement or training program which provides any remuneration to the Named Insured for the use of said aircraft.”

Ranger as appellant contends that the terms of the policy are clear and unambiguous and that, by such clear and unambiguous terms, Silverthorn as a renter pilot was excluded from coverage. Silverthorn, on the other hand, contends that the declaration of intended use, showing that the use of the aircraft was to include “Rental to pilots,” produced an ambiguity in the definition of “insured” insofar as rental pilots were concerned and that the ambiguity should be resolved against the insurer so as to afford coverage to Silverthorn.

At the outset, the parties disagree as to the choice of law to be applied. For reasons which will become apparent, Ranger contends that the policy was a Texas contract and that Texas law must be applied in resolving the question. Both respondents Silverthorn and the Kepharts disagree and assert that the law of Missouri is applicable.

The conclusion reached obviates the necessity to make a firm resolution of this disagreement. The resolution by the Texas court of the problem here presented is convincing and this court believes that it correctly states the law on the issue. Whether it here be denominated Texas law or Missouri law is immaterial.

Texas law, relied upon by appellant, is found in the case of Melton v. Ranger Insurance Company, 515 S.W.2d 371 (Tex.Civ.App.1974). In that case, the responsibility of the insurer toward a rental pilot was considered under policy provisions identical with those here involved. The definition of “insured,” excluding rental pilots and the “Purpose of Use” checked in the declaration was “(c) ‘Limited Commercial’ * * * including * * * Rental to Pilots * The argument advanced was the same as that here presented, i. e., that the inclusion of rental to pilots as a covered purpose of use created an ambiguity in the definition of who was covered under the policy. In rejecting the argument, the court stated (515 S.W.2d 374):

“The clause of the policy involved here that defines ‘insured’ spells out who the insureds in the policy are and the plain wording of that part of the policy expressly excludes a ‘renter pilot’ from being insured by the policy.

“No part of the policy expressly provides that a ‘renter pilot’ is an insured under the policy. If a renter pilot is an insured it must be so because of implication from language used in another part of the policy.

“The part of the policy that it is claimed creates an ambiguity or uncertainty as to whether ‘renter pilots’ are insureds reads:

“ ‘6. Purpose(s) Of Use: The aircraft will be used only for the purposes indicated by “X” . . . “X” (c) “Limited Commercial.” The term “Limited Commercial” is defined as including . . Rental to pilots . . ..’

“We hold that the effect of that clause is to provide that the loss covered by the policy must arise out of certain named uses, and that one such use is ‘rental to pilots.’ In other words, the purposes provision of the policy merely makes it clear that Van Enterprises, Inc.’s coverage for its negligence as a lessor not in possession of the plane is not forfeited by permitting a renter pilot to use the plane. This clause further permits the named insureds to recover under the policy for damage to the airplane itself in instances when such damage is sustained while the aircraft is in the hands of a renter pilot. It is not the purpose or the effect of the Purposes of Use provisions of this policy to designate who is or is not an insured under the policy.

“Nothing in the Purposes of Use provisions of the policy in any way modifies, even by implication, the definition of ‘insured’ contained in the policy. Its only purpose is to protect the named insured, Van Enterprises, Inc., while the aircraft is rented out.”

In Buestad v. Ranger Insurance Company, 15 Wash.App. 754, 551 P.2d 1033 (1976), the court arrived at the same result. In Jahrman v. Valley Air Park, Inc., 333 So.2d 712 (La.App.1976), the court reached a similar conclusion under a slightly different provision excluding rental pilots.

Respondents rely upon Martin v. Ohio Casualty Insurance Company, 9 Mich.App. 598,157 N.W.2d 827 (1968). Under a policy containing an exclusion of rental pilots in the printed definition of “Insured” and with a checked purpose of use in the declaration of “Commercial” which permitted rental of the aircraft to pilots, the court concluded that a rental pilot was an insured. In so concluding the court stated (157 N.W.2d 829):

“ * * * The policy is to be considered as a whole and should be construed liberally in favor of the insured. This is in line with the Michigan rule as to construction of insurance policies generally. See Allor v. Dubay (1947), 317 Mich. 281, 26 N.W.2d 772. Where the policy contains both typewritten and printed provisions, the latter must yield to the former because of the rule that typed provisions are deemed special conditions modifying the printed portions. It was this latter rule that the trial court invoked, and properly so, in ruling that item 6 of the ‘declarations’ modified the definition of ‘insured’ and extended coverage to a renter pilot. An ‘X’ was typed into the box in front of subsection (e) of item 6, and this is the provision that authorized the use of the insured aircraft for rental to pilots. We hold that the court correctly ruled that this provision modified the definition of ‘insured’ and extended coverage to plaintiffs. ‘To hold otherwise would be to permit the * * * insurance company to “blow hot and cold” in one breath, or, to give coverage in one part of the policy and take it away in another.’ Fireman’s Fund Insurance Company v. McDaniel, supra [D.C.], 187 F.Supp. [614] at page 618. The only reasonable construction of this policy is that the purpose of item 6 is to indicate the extent of the authorized use of the aircraft and that protection is afforded for damages arising out of such authorized use.”

(This case received the attention of the Texas and Washington courts in the cases above cited but both declined to follow the Michigan court’s holding.)

In Wzontek v. Zurich Insurance Company, 418 Pa. 30, 208 A.2d 861 (1965), the court reached the same result as the Michigan court and extended coverage to a rental pilot, despite the exclusionary provision of the printed policy, basing its opinion on the inclusion of rental as a purpose of use under the declaration.

The parties to this appeal, naturally, contend that the outstate authorities favorable to them are more consistent with general Missouri law on the construction of insurance policies. Respondent Silverthorn points out that Missouri has recognized the rule, relied upon in Martin and Wzontek, supra, that typed provisions of an insurance policy prevail over printed terms of the policy. Hale v. Central Mfrs. Ins. Co., 93 S.W.2d 271, 275[9] (Mo.App.1936). As there noted that rule is applicable in the case of conflict between typed and printed provisions, but it was • also recognized that, if possible, the construction will be accepted which permits both to stand.

Silverthorn also invokes the rule that a policy provision cutting down coverage will be strictly construed against the insurer. Clarkson v. MFA Mutual Insurance Company, 413 S.W.2d 10, 12[1] (Mo.App.1967). The statement of that rule presupposes the extension of coverage by some provision of the policy and limitation or restriction of such coverage by other terms. The threshold question here is by what provision of the policy was coverage ever extended to rental pilots.

Silverthorn also relies upon Allison v. National Insurance Underwriters, 487 S.W.2d 257 (Mo.App.1972). In that case the court found “violent and irreconcilable ambiguity” (487 S.W.2d 262) between policy provisions in question which, had the construction advocated by the insurer been accepted, would have resulted in the denial of any benefit to the insured of coverage purportedly extended to him. In this case, there has been no denial of coverage to the insured and the policy provisions in question can stand and both be given meaning.

Respondents Kepharts couch their argument largely in terms of conflict between an endorsement and printed provisions of the policy. It may be questioned whether the declarations here involved constitute an endorsement within the rule relied upon, but, in any event, this contention is basically the same as that relied upon by Silvert-horn, i. e., that typed provisions prevail over printed provisions of a policy.

The respondents’ arguments are necessarily predicated upon the existence of an ambiguity in the policy. The rules of construction on which they rely have efficacy in such situation but such rules are not helpful here because there is no ambiguity in the policy provisions. The declarations do state what uses of the aircraft will be covered under the insurance provided, but, other than showing the named insured, the declarations do not purport to define who, other than that entity, is entitled to the benefit of the insurance provided for the covered uses. Insofar as persons other than the named insured are concerned, the terms of the policy defining to whom protection will be extended must be looked to. In extending coverage to persons other than the named insured, the policy clearly and unequivocally excludes “any persons operating the aircraft under the terms of any rental agreement * * * which provides remuneration to the Named Insured for the use of said aircraft.”

The “Purpose(s) of Use” which includes rental to pilots provides coverage to the named insured for liability which might be imposed upon it arising out of such use of the aircraft. The parties to the contract of insurance were under no obligation to provide coverage for the rental pilots and by the terms of the policy elected not to do so. There can be no question as to their right so to contract.

The creation of an ambiguity where none exists is not the function of a court in a case such as this. The terms of the policy here control the rights and obligations of the parties and no judicial intervention which would, in effect, rewrite the policy is called for.

Respondents have advanced the argument that the stipulation upon which the case was submitted states merely that H.T.P. “rented” the aircraft to Silverthorn and says nothing about “remuneration” to H.T.P. for the use of the plane. The term “rented” implies consideration to the owner for the use of the aircraft. 76 C.J.S. Rent p. 1167 (1952). In his brief, Silverthorn admits that he was paying the named insured money for the use of the airplane. The stipulation, particularly in the light of this admission, shows that Silverthorn’s operation of the aircraft was within the exclusionary provision.

Judgment reversed and cause remanded for entry of new judgment in accordance with the views herein expressed.

Reversed and remanded.

All concur.


source: Caselaw Access Project

author: PRITCHARD, Chief Judge.

license: Public Domain

text:
    Donald R. COSBY, Appellant, v. David M. HARDING et al., Respondents.
    No. KCD 28519.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Robert P. Gingrich, Jr., Kansas City, for appellant; Kodas, Reed & Gingrich, P. C., Kansas City, of counsel.

      Dean F. Arnold and B. W. Jacob, Kansas City, for respondents; Bagby, Benjamin & Arnold, Kansas City, of counsel.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   PRITCHARD, Chief Judge.

This is a malpractice action brought by appellant against his former attorneys. The basis of his claim under Count I of his amended petition is that respondents failed to file a suit within an applicable 2-year statute of limitation [§ 409.411(e), RSMo 1969] for the return of purchase money, $10,000.00 and interest, which appellant had paid one John Blair for fractional interests in an oil lease. The trial court sustained respondents’ motion for summary judgment as to Count I. Count II of the amended petition claimed that respondents carelessly and negligently permitted appellant’s cause of action against John Blair, et al., to be dismissed by the court on or about March 5, 1974. The trial court sustained respondents’ motion to strike Count II which motion was based upon admissions previously filed, “In response to requests for admissions, plaintiff has already admitted timely notification of all actions taken in Cause 754,814, both by defendant and by the Court. Further, the record shows as a matter of law that no duty on the part of these defendants beyond December 17, 1973, when they were permitted to withdraw from Cause 754,814.”

As to the summary judgment upon Count I, the question is whether there remained for trial any genuine issue of fact as to the charge therein that respondents were negligent in failing to file the suit against Blair, et al., within the applicable 2 year statute of limitations, supra. The request for admissions and appellant’s answers thereto must be considered.

Appellant admitted: That he met with John Blair in Camdenton, Missouri, on January 15,1970, for the purpose of completing the purchase of the fractional interest in an oil lease, the subject matter of his suit for rescission, at which time he did not have a legal description of the oil lease, and at which time he issued a check for the purchase price and in return received an assignment of the fractional interest in the oil lease. The check to John Blair was negotiated at the same time it was issued by appellant, January 15,1970. By request for admission No. 5, appellant was asked, “The check issued by plaintiff in payment, and the assignment of the oil lease, were backdated to December 31, 1969 and January 1, 1970, for the express purpose of gaining a tax advantage for John Blair.” Appellant answered: “5. Denied. The instruments were backdated at John Blair’s request for his reasons, tax advantages to him as I understood.” By request for admission No. 7, appellant admitted that the dates shown on his check and on the assignment of the oil lease do not reflect the actual date the exchange of the check and assignment of the oil lease in fact took place.

In his brief, appellant says that it was his contention in the rescission litigation (against Blair, et al.) that the court would be required to exclude any oral and extraneous evidence of either plaintiff or defendants therein regarding the date upon which the parties met and the documents signed. He says that the defense of the statute of limitations having run was pleaded (by Blair, et al.), and states that defendants “would have prevailed on their defense, and accordingly plaintiff’s suit was untimely by at least six days.” This conclu-sory statement is by no means true, assuming that the statute of limitation question had been presented and was adjudicated, which it was not. At 17A C.J.S. Contracts § 359, p. 361, it is said, “In the case of a written contract, the time when it is finally executed, or the time of its delivery, is ordinarily deemed to be the time when the contract becomes binding, unless a different intent appears. A date on the writing is generally not conclusive, and if delivery is shown to have been at a different time, that time is deemed to be the date of inception of the contract, unless an intention to other effect is otherwise shown.” No intention of a date otherwise than that which is shown by the admission of delivery of the check and the assignment of the oil lease (January 15,1970) is here shown. Compare Matthews v. Jeremiah Burns, Inc., 205 Misc. 1006, 129 N.Y.S.2d 841, 845[4] (Sup.Ct.1954). And although the C.J.S. text, supra, says that the view has been taken that an instrument becomes operative as of its date, without regard to the date of delivery, there is nothing in this record to compel a different conclusion than that the contract became effective when it and appellant’s check were delivered in view of his solemn and binding judicial admissions with respect thereto. Furthermore, as is stated in 32A C.J.S. Evidence § 963, p. 447, “As a general rule it is admissible to show by parol the true date of an instrument, even though such evidence may tend to vary the writing, or to supply the date when it is omitted, since the date is not generally such an important element of the agreement that the reason of the rule against parol evidence applies thereto, * * Appellant’s admission is that the backdating of the lease and the check were for Blair’s own tax purposes. It could not therefore have then or thereafter affected the rights of appellant and Blair as between themselves. It follows, then, that the date of the oil lease and assignment was on the date of their delivery, January 15,1970, and respondents having filed suit on January 6, 1972, it was timely as a matter of law and not, under the admitted facts, beyond the 2 year period of limitation imposed by § 409.411. The court did not err in granting summary judgment on Count I of appellant’s petition.

Respondents were permitted to withdraw as appellant’s counsel on December 17, 1973. At that time appellant’s suit against Blair, et al., was viable as still pending. Under that date, appellant admitted he received a letter from the clerk of the court that the motion to withdraw as attorney of record, and as the letter shows, “In this instance you will have to engage another attorney.” He admitted that he did not seek other counsel, and his suit was dismissed on March 4,1974. It is unnecessary to pursue respondents’ contention that appellant was contributorily negligent as a matter of law because he alleges that his suit was dismissed at respondent’s request, to his resultant injury. Ordinarily, the withdrawal or discharge of counsel terminates his authority to act for his client. At 7 C.J.S. Attorney and Client § 147, p. 985, it is said, “An attorney, who is without authority to take certain steps in regard to his client’s matters * * * may be liable for injury suffered by the client as a result of the attorney’s taking such steps. Thus, where an attorney, without authority, enters an appearance for a party, dismisses a suit, compromises his client’s debt, or withdraws or enters satisfaction of a judgment without full payment thereof, he is liable to his client for the damage suffered.” See also 7 C.J.S. Attorney and Client § 87, p. 908, 909, which in part says, “ * * * and an attorney who has not in any way been employed or retained with reference to a suit has no authority to dismiss the same.” If the facts should show that respondents affirmatively and without authority took steps to cause appellant’s suit for rescission to be dismissed, then they are or may be liable to him. Thus, a genuine issue of fact remains as to who, if anyone (other than a court’s dismissal for want of prosecution) caused the dismissal. The motion to strike (which is really a motion for summary judgment, so treated here) was erroneously sustained.

The judgment upon Count I is affirmed. The judgment upon Count II is reversed and as to that count, the case is remanded for further proceedings.


author: SHANGLER, Presiding Judge.

text:
    In re the MARRIAGE OF Glenda L. DICKEY, Petitioner-Appellee, and Robert P. Dickey, Respondent-Appellant.
    No. KCD 28665.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.

      John J. Hager, Donald M. Fehr, Gant, Jolley, Moran, Walsh, Hager & Gordon, Kansas City, for respondent-appellant.
    Donald L. Allen, Donald L. Allen, a Professional Corp., Lee’s Summit, for petitioner-appellee.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The husband appeals from a dissolution of marriage decree and an award of $75,000 as maintenance in gross in favor of the wife after hearing conducted without notice to the husband and without his appearance.

The answer of the husband to the petition for dissolution, which denied that the marriage was irretrievably broken, had been stricken by the trial court for the recurrent and obdurate refusal of the husband to make discovery. The cause was then placed on the default docket for hearing. Notice of the proceeding was nevertheless attempted by mail upon the defendant husband, but was misdirected. The cause was heard on evidence and went to judgment without the appearance of the husband.

The appeal contends that the requirement of § 452.320.1 [and of counterpart Rule 4.07 of the Sixteenth Judicial Circuit], that where the parties allege the marriage is irretrievably broken [or one party so alleges and the other does not deny] notice be given the absent party by mail in the manner specified before the court shall enter the decree of dissolution, is mandatory and jurisdictional to the decree. The argument contends that the order which struck his pleading effectively rendered him to the status of a party who had not denied the allegation that the marriage was irretrievably broken, and so entitled him to the notice benefit of § 452.320.1. The appeal contends also that the refusal of the court to set aside its orders was error since he made proof of meritorious defense and legal excuse for the default — the predicates necessary to the requested relief.

The rendition of judgment which follows the disallowance of a pleading for failure to obey a discovery order does not come by default, in the ordinary sense, but is treated as a judgment upon trial by the court. Jewell v. Jewell, 484 S.W.2d 668, 672[2] (Mo.App.1972). Thus, the principles which govern this appeal do not relate to default judgments as such, but to the discretion of the court — in the circumstances— to impose a sanction which renders the cause uncontested and subject to judgment.

The chronology of events which led to the order to strike the answer and eventual judgment against the defendant show:

On July 8, 1974, the wife filed the petition for dissolution which alleged the marriage was irretrievably broken.
The husband answered and denied that allegation.
Two months later the wife served interrogatories on counsel for the husband. A month later, she moved to compel answers. That motion was sustained. Another month later, the wife moved to strike the answer for failure of the husband to comply with the order to make answers to interrogatories.
Then counsel for the husband made application for legislative continuance. Application granted and motion to strike answer overruled.
[After conclusion of legislative session] the wife moved again to strike the answer for failure to comply with the order. Notice given to husband of hearing on the motion.
Order of the court to strike answer of the husband.
Within days the husband moved to set aside this order on the allegations that the records sought had been with his bookkeeper who had just died and were then in the possession of persons unknown.
This motion was sustained and the original answer reinstated.
On September 5,1975, the wife moved (1) for an order of contempt against the husband’s failure to comply with the November 26,1974, order to answer interrogatories; (2) to strike the answer and give notice that hearing on the motions be set for September 8, 1975.
On September 8, 1975 — the husband did not appear; the answer of the husband is ordered stricken.
On November 4, 1975, the wife filed request with the Court Administrator for the Sixteenth Judicial Circuit to mail notice of hearing for dissolution of marriage in the form of § 452.320. This request listed the incorrect address for the husband: 160th and Highway 291 South, Lee’s Summit, Missouri instead of 160th and Highway 291 South, Greenwood, Missouri — where he had been personally served.
The notice was mailed as requested without copy to counsel for the husband. The notice was returned addressee unknown. On December 11, 1975, hearing was held on the petition for dissolution of marriage. The husband was neither present nor represented by counsel. The court noted the notice had been sent out and returned. The wife was the only witness and on her testimony the court found that the husband made default, that the marriage was irretrievably broken, and entered judgment for dissolution of marriage, maintenance in gross to the wife and an attorney fee.

The appeal rests entirely on the premise that the notice requirement of § 452.320.1 [and counterpart Rule 4.07 of the Sixteenth Judicial Circuit] is mandatory, and absent compliance — as where notice is sent to the wrong address — the court may not proceed. As asserted by the husband on this appeal, this premise subsumes another proposition: that § 452.320.1 requires notice prior to the order of dissolution. That is the effect which local Rule 4.07 gives to the statute and explains the request by the wife for a notice on the husband by mail in the manner prescribed by § 452.320.1 ten days before the date for hearing on dissolution. We do not reach that definitive issue of statutory meaning. We do note, however, Brand v. Brand, 534 S.W.2d 628 (Mo.App.1976) treats the notice procedure of § 452.320.1 as operative after the determination of dissolution [l.c. 630-1[1 — 3]] and holds, in any event, that by the plain text of that statute failure of the party to receive notice does not affect the power of the court to enter a decree.

The failure of notice to the husband in these circumstances did not affect the validity of the judgment against him, if for no other reason than that his presence could add no efficacy to the proceedings. The court had stricken his answer so the husband had no standing to make a contested issue. The authority of the court to proceed to judgment derived not from § 452.320.1 — as the husband contends — but from the sanction provisions of Rule 61.-01(b). Our courts have consistently held that a default judgment which results from a sanction does not deny a defendant due process of law. Miles v. Armour, 239 Mo. 438, 144 S.W. 424, 426 (1912); Divilbiss, Practice and Procedure in Missouri, 27 Mo. L.Rev. 557 (1962). The rationale is that the lawmaker has the power, from the failure of a defendant to produce information necessary to the disposition of a cause, to create a presumption that there is no merit in the asserted defense. Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530 (1909). See, also, Annotation: Pre-Trial Proceedings — Nonappearance, 6 A.L.R.3d 714, 719.

Rule 61.01(b) and § 510.060 empower a court to strike pleadings and enter a default judgment against a party who fails to obey an order to answer interrogatories. The discretion allowed by this rule is subject to review and will not be disturbed unless exercised unjustly. In re M, 446 S.W.2d 508, 513[13-16] (Mo.App.1969). The default of a party is a drastic punishment and is most aptly invoked where the party has shown a contumacious and deliberate disregard for the authority of the court. 27 C.J.S. Dismissal and Nonsuit § 59, p. 407.

The sanction of the court which led to the default was a reasonable response to the resistance of the husband to the lawful orders for discovery. The history of the litigation shows that his pleading was struck two times for the same disobedience, once set aside but finally given effect by the default. Even these continuous refusals by the husband to disclose the state of his property deprived the court of information necessary to a considered decision. We will not hear him now say that his absence at that adjudication placed him at a disadvantage.

The judgment is affirmed.

All concur.

      . The relevant portion of § 452.320.1 provides: If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it, the court . . . after a hearing thereon shall make a finding whether or not the marriage is irretrievably broken, and where one of the parties has not denied it the court shall cause to be deposited in the United States mail an envelope . . . deliver to addressee only . . . enclosing a notice to the party not denying that absent objection from said party being filed within ten days . that a finding the marriage is irretrievably broken and an order of dissolution of the marriage may be entered of record. The failure of such party to receive such notice shall not impair the power of the court to enter an order dissolving the marriage or the validity of such an order. [Emphases added]

      . The husband argues the effect of local Rule 4.07 for the first time on appeal. The text of the rule was not in evidence and we may not take judicial notice of the rules of the circuit court. Cusack v. Green, 252 S.W.2d 633, 635[2] (Mo.App.1952). The procedures adopted by the wife can be understood only by reference to the general purport of that rule.

      . Many of the cases cited in the briefs of the parties — such as Hinson v. Hinson, 518 S.W.2d 330 (Mo.App.1975) and Czapia v. Czapia, 538 S.W.2d 53 (Mo.App.1975) — do not bear on the decision and so are not mentioned.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Jack Charles BEASLEY, Appellant, v. Shannon Marie Lattner BEASLEY, Respondent.
    Nos. KCD 28695 and 28716.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.

      James S. Cottingham, Independence, for appellant.
    Lloyd S. Heilman, Kansas City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from adverse judgment in action to set aside default divorce decree. The dispositive question is whether the decree was shown to have been a fraud on the court. Affirmed.

At the conclusion of the hearing, Mrs. Beasley requested, and the court filed “a brief opinion containing a statement of the grounds for its decision” which includes its findings of fact and conclusions of law, as provided in Rule 73.01.1(b), V.A.M.R.:

“This matter arise[s] out of an alleged commonlaw marriage between the parties during the year of 1969. Presently pending before the Court is a suit in equity to set aside the judgment entry entered by this Court on the 7th of December, 1970. The allegation is made by petitioner Jack Beasley that there was no marriage between the parties in 1969 or at any other time. * *

“Shannon Beasley filed a Petition for Divorce in this court against Jack Beasley * * * wherein she alleged in paragraph two of her sworn petition that she and Jack Beasley entered into a commonlaw marriage relationship in Wyandotte County, Kansas during [and through] the months of July and August, 1969. Born of that relationship was one child named Kelly Lynn Beasley. Mrs. Beasley prayed for a divorce, custody of the minor child, child support, alimony and attorney fees. The Petition for Divorce was served on Jack Beasley on the 23rd of October, 1970. Mrs. Beasley appeared in court with her attorney, who is now deceased. She offered testimony, under oath, to the effect that she and Jack Beasley entered into a commonlaw marriage arrangement in the state of Kansas and that born of their marriage relationship was one child. This evidence was presented to the Court on the 7th of December, 1970 and the judge entered an order divorcing the parties, awarding custody of the minor child to the mother, requiring the father to pay $25.00 per week and an award of alimony of $1.00 per month and attorney fees of $300.00. There was a general execution issued on the judgment for child support on the 4th of February, 1971, but some confusion exists as to whether it was effective. The garnishment [on Mr. Beasley’s employer, Muehlebach Hotel] was released on the 8th of February.

“Considerable testimony was introduced into evidence on January 27, 1976 and February 24, 1976 on petitioner Jack Beasley’s motion to set aside that decree. It is the opinion of this Court that most all of that testimony was inadmissible. Basically, Mr. Beasley claims that there was no common-law marriage under the laws of the state of Kansas. Simply stated Mr. Beasley was afforded an opportunity to present that evidence in 1970 and he failed to do so. His alleged conversation with Mr. Henry, Mrs. Beasley’s attorney in 1970, was inadmissible because in violation of the Dead Man’s Statute. Nevertheless, whether admissible or not it does not excuse Mr. Beasley from allowing the matter to go by default. At least under his evidence he was aware of the divorce, award of custody and child support within three months after the entry of the decree. He did nothing until some five (5) years after the judgment was entered and only then when he was threatened by criminal action in the state of Kansas for failure to support the minor child. The evidence on laches that was presented by the respondent is persuasive and a clear example of the lapse of time working to the detriment and prejudice of one party. A good deal of evidence that would possibly be available to prove that there was a com-monlaw marriage under the laws of Kansas is lost by the passage of time.

“Based upon the evidence now presented to this Court, it is not at all clear that there was a relationship sanctioned by the state of Kansas that would have allowed this Court to grant a divorce. In fact, the evidence preponderates in favor of facts tending to establish no commonlaw marriage. But many facts have been lost due to the passage of time and, further, and more significantly, Mr. Beasley was afforded the opportunity to present those facts and he didn’t. At some point in time there must be some finality to the disputes between people. In this case it has occurred after five years have expired. This might not have been true while the court still retains jurisdiction in the thirty days following its judgment entry or even three months following the entry.

“ * * * a Petition for Divorce was filed by Mrs. Beasley October 9,1970, * * it was sworn to, * * * it was shortly thereafter served personally on Mr. Beasley, * * * the judgment entry was made on the 7th of December, 1970 as here-inbefore described and * * * Mr. Beasley failed to respond at any time to the petition or the entry of a judgment against him for five years thereafter.

“ * * * the petitioner is guilty of lach-es . in failing to take any action on this judgment for over five years and further, * * * there is no ‘extrinsic fraud’ committed by respondent.

“Therefore, petitioner’s petition to set aside the judgment entry of the 7th of December, 1970 between the same two parties in this court is denied and judgment entered in favor of the respondent and against the petitioner.”

Appellant contends his petition to set aside the decree should be sustained, asserting that he showed: (A) Mrs. Beasley perpetrated a fraud on the court in the divorce proceedings by reason of false allegation of marriage in her summons, petition for divorce, and testimony; (B) she fraudulently induced his default; (C) he has a meritorious defense to the petition for divorce and good reason or excuse for his default; (D) the original decree was a nullity and void for want of jurisdiction. He contends also that he is not barred by lach-es.

The case is for review upon both the law and the evidence with due regard to be given the opportunity of the trial court to have judged the credibility of the witnesses. See Rule 73.01.3(a), (b), V.A.M.R., and its construction, Murphy v. Carron, 536 S.W.2d 30, 32[1 — 3] (Mo.banc 1976).

The foregoing demonstrates an absence of the fraud asserted by Mr. Beasley as ground for setting aside the divorce decree awarded Mrs. Beasley.

Appellant’s argument A is on the facts and the weight of the evidence. The allegation in Mrs. Beasley’s divorce petition of a common-law marriage from which she sought to be divorced is clear, and she introduced evidence at the hearing on her petition in proof of it. As noted by the trial court, a different view of the relationship between Mr. and Mrs. Beasley might have surfaced in the divorce hearing had Mr. Beasley presented different or conflicting facts at the time of the divorce. Although duly notified, he chose not to put the facts in issue, made the same choice some three months after entry of the divorce decree, and chose to remain silent until the child support issue arose some five years later. The trial judge was warranted in treating Mr. Beasley’s charge of fraud as a too long-delayed afterthought. Appellant cites McGrath v. McGrath, 387 S.W.2d 239 (Mo.App.1965), and Sigwerth v. Sigwerth, 299 S.W.2d 581 (Mo.App.1957). Their distinctions demonstrate the weakness in his position. In the first case, the question of common-law marriage was put in issue by the pleadings, was tried by the court, and in absence of proof of the relationship, there was no marriage upon which to grant temporary allowances for alimony and attorney’s fees. In the second, a default divorce decree was set aside upon motion filed barely a month after the decree because defendant had not been personally served and the motion alleged and its proof showed that the divorce plaintiff had never been a resident of Missouri for purpose of jurisdiction.

Appellant’s argument B is that he, upon receiving Mrs. Beasley’s petition for divorce and summons, thought of himself as a single man and was defrauded into default by Mrs. Beasley’s attorney who, upon his inquiry, allegedly told him he would get further notice of the hearing date. The court’s refusal of testimony of any conversation with Mrs. Beasley’s deceased attorney was proper under her objection based on the Dead Man’s Statute, Section 491.010, RSMo 1969. Johnson v. Dur-Est, Inc., 224 S.W.2d 611 (Mo.App.1949). Cf. Jackson v. Tibbling, 310 S.W.2d 909, 914, 915 (Mo.1958).

Appellant’s argument C is that the court recognized he had a meritorious defense, and that he was excused from his default on account of the matters previously discussed and as shown by provisions for notice of entry of a default decree contained in the Dissolution of Marriage Law in Section 452.320, RSMo., effective January 1, 1974. His difficulty is that the trial court did not find, and it is not shown, that Mr. Beasley had a meritorious defense. The trial court, at best, expressed only that proof “now presented” is “unclear” as to the 1969 relationship between the parties. Section 452.320, supra, was not in force in December 1970; nevertheless, it appears that Mr. Beasley was afforded notice of the entry of Mrs. Beasley’s divorce decree.

Appellant’s argument D is that a default divorce decree may be set aside if the court which granted the divorce did not have jurisdiction to do so even in the absence of fraud or excusable neglect. See Wenzel v. Wenzel, 283 S.W.2d 882 (Mo.App.1955), where jurisdictional defects on the face of the record, not sounding in fraud, were said to give rise to after-term direct attacks on the jurisdiction of the court ab initio to render a judgment. The difficulty is that there are no jurisdictional defects on the face of the record in this divorce hearing, and application of the above principle to this case would require an acceptance of Mr. Beasley’s belated version of the facts as conclusive. Such is contrary to the proposition that “every presumption will be indulged in favor of the jurisdiction of the court over the subject matter and of the persons, unless the record affirmatively shows to the contrary.” Orrick v. Orrick, 241 Mo.App.143, 233 S.W.2d 826, 828[4] (1950).

With respect to laches, suffice to say, “In all cases where actual fraud is not made out, but the imputation rests upon conjecture, where the seal of death has closed the lips of those whose character is involved, and lapse of time has impaired the recollection of transactions and obscured their details, the welfare of society demands the rigid enforcement of the rule of diligence.” Hammond v. Hopkins, 143 U.S. 224, 274, 12 S.Ct. 418, 435, 36 L.Ed. 134 (1892). See also Brandt v. Manson, 207 S.W.2d 846 (Mo.App.1948).

Judgment affirmed.

All concur.


author: TURNAGE, Judge.

text:
    TEACHERS CREDIT UNION, a Missouri Corporation, Plaintiff-Appellant, v. Bill E. OLDS, a/k/a Ray E. Olds, Jr., Defendant-Respondent.
    No. KCD 28698.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Jorge A. Elliott, Kansas City, for plaintiff-appellant.
    No brief filed for defendant-respondent.
    Before DIXON, P. J., and WASSER-STROM and TURNAGE, JJ.
   TURNAGE, Judge.

Teachers Credit Union brought suit against Bill Olds to recover $2,895 which the Union alleged was paid to Olds in such manner that Olds was unjustly enriched because he had no right to receive such sum.

At the conclusion of the Union’s evidence presented to a jury, the court sustained Olds’ motion for a directed verdict. On this appeal the Union raises the single point that the court erred in sustaining this motion because its evidence showed Olds was unjustly enriched at the Union’s expense. Reversed and remanded.

While the Union filed a three-count petition against Olds, the only point raised on this appeal concerns the fact the Union made a submissible case on a showing of unjust enrichment to Olds. This is construed to fall under the doctrine of money had and received. No mention is made as to the other two counts in the Union’s petition and no opinion is expressed herein concerning those. Olds has not filed a brief.

The Union’s evidence disclosed Bill Olds’ wife, Myrna, went to the Credit Union office after she and Olds began having marital difficulties. Mrs. Olds was a principal in an elementary school. She had an account with the Credit Union which was listed in her name with Olds as joint owner, and there was a second account in the name of Olds on which Myrna was listed as a joint owner. On June 3, 1972, Myrna withdrew $1,950 from the account in which Olds was listed as the owner and deposited this amount in her account. At the same time she had Olds’ name taken off her account as a joint owner and was assured this meant Olds could not withdraw any money from her account.

Myrna testified that on June 6 she told Olds she had withdrawn all but $50 from his account. On the next day, Olds went to the Credit Union office and requested a withdrawal of $2,895. The Credit Union employee who handled this transaction did not notice the change in the ownership of Myrna’s account and paid Olds the requested amount from Myrna’s account.

When it was discovered Olds had been paid from Myma’s account on which Olds had been removed as a joint owner, the Credit Union credited Myrna with the $2,895 paid to Olds and began its efforts to recover this amount from Olds.

In testing the evidence adduced by the Union to determine if a submissible case has been made, the Union is entitled to the most favorable view of all the evidence and must be given the benefit of all favorable inferences to be drawn therefrom. Boyle v. Colonial Life Ins. Co. of America, 525 S.W.2d 811 (Mo.App.1975).

The rule as to the essential facts necessary to a recovery for money had and received is stated in Webster v. Sterling Finance Co., 351 Mo. 754, 173 S.W.2d 928, 931[4 — 6] (1943). There the court stated:

“The action for money had and received has always been one favored in the law, and the tendency is to widen its scope; it being a flexible form of action, levying tribute on equitable, as well as strictly legal, doctrines; so that, it has become axiomatic that the action lies where ‘the defendant has received or obtained possession of the money of the plaintiff, which, in equity and good conscience, he ought to pay over to the plaintiff.’ ” Clifford Banking Co. v. Donovan Commission Co., 195 Mo. 262, 94 S.W. 527, 535.

Applying this rule to the facts in this case it is apparent Olds obtained money from the Credit Union. The remaining requirement is that in equity and good conscience Olds should pay that money back to the Union.

This court had a similar situation in Handly v. Lyons, 475 S.W.2d 451 (Mo.App.1971). In that ease an executor sent a request for payment of a life insurance policy to the company after he had received notice the deceased had changed the beneficiary on his policy from his estate to certain relatives. This court stated:

Under all standards of fair dealing and conscionable conduct he should have divulged to Metropolitan the information he had received from the Postmaster instead of remaining silent and making his own claim. By so concealing and suppressing material fact he must be held guilty of constructive fraud — certainly inequitable conduct. 475 S.W.2d 464.

In this case Olds had full knowledge his wife had withdrawn all the money in his account except $50 and had placed it in her account. A jury was entitled to infer from this that Olds knew his wife was taking steps to place all of the money she could in an account which Olds could not reach in view of their marital difficulties. Thus when Olds presented himself at the Credit Union office and requested the withdrawal of $2,895, he knew there was only $50 in his own account and he had good reason to believe there was not enough money in any other account which he would be entitled to withdraw. By making his request to withdraw more than was in his account without making any mention of the change he knew his wife had made in the account, Olds was guilty of constructive fraud, or at the very least, inequitable conduct. Thus the evidence adduced by the Union fully met the requirement to recover under the theory of money had and received. It showed Olds received the money and showed in equity and good conscience Olds should return the money to the Credit Union.

The verdict was erroneously directed against the Credit Union and the judgment is reversed and the cause is remanded for a new trial.

All concur.


text:
    STATE of Missouri, Respondent, v. Tommy Lee BEAVERS, Appellant.
    No. KCD 28863.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Jefferson City, for respondent.
    Before DIXON, P. J., and WASSER-STROM and TURNAGE, JJ.
   TURNAGE, Judge.

Tommy Lee Beavers was convicted by a jury of carrying a concealed weapon, § 564.-610, RSMo 1969, and sentenced by the court under the Second Offender Act to imprisonment for three years. On this appeal Beavers raises the sole question of the failure to give Instruction MAI-CR 2.10. Affirmed.

Beavers left a bar in Kansas City with his friend Jesse Hendrix in an automobile driven by Hendrix. The car was stopped a short time later because it had only one headlight and no front license tag. The two officers who stopped the car stated they observed Beavers lean down as if to place something under the front seat and then look back at the officers who were pursuing with their siren on.

After the car was stopped, the men were ordered to get out and a subsequent search revealed a loaded .32 caliber pistol under the seat on the passenger side. When the officer removed the pistol and displayed it, Beavers stated it was his gun.

The above facts were shown by the State’s evidence. The evidence produced by Beavers, although not by his own testimony, was that Beavers’ sister had placed the gun under the passenger side of the automobile without the knowledge of Beavers.

Beavers made no request that MAI-CR 2.10 be given to submit the question of whether his participation was limited to his presence at the place of the crime. In his motion for new trial Beavers simply stated, “The court erred in failing to submit Instruction MAI-CR 2.10, and did so to the prejudice of the defendant.” In State v. Sanders, 541 S.W.2d 530, 532[1] (Mo. banc 1976) the court held that compliance with Rule 27.20 requires an assignment, in a motion for a new trial concerning the failure to give an instruction, to be accompanied by a statement of facts in evidence which are considered sufficient to warrant the giving of such an instruction. The court held the failure to state such facts failed to preserve for review any question regarding the refusal to give the instruction.

In this case Beavers stated only the court erred in failing to give MAI-CR 2.10. No facts whatever were stated in the motion which were considered to be sufficient to warrant the giving of such instruction. In that circumstance, under the holding in Sanders and the many cases cited therein, Beavers has failed to preserve any question for review.

Absent any question being preserved which this court may review and absent any request for review under Rule 27.20(c), the judgment is affirmed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    CITY OF KANSAS CITY, Missouri, Respondent, v. Donna C. REEVES, Appellant.
    No. KCD 28909.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.

      William H. Pickett, Robert A. Simons, Kansas City, for appellant.
    Aaron A. Wilson, City Atty., Louis W. Benecke, City Pros., Dan R. Sharp, Associate Trial Director, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Defendant was charged with intentionally stealing property belonging to Skaggs Drug Company (two filled prescriptions having a combined value of $5.13) in violation of Section 26.50(b), Revised Ordinances of Kansas City, Missouri, 1966, as amended. She was found guilty as charged in the municipal court and a fine of $25.00 was imposed as punishment. Defendant appealed to the Circuit Court of Jackson County (Rule 37.78) where the charge was tried de novo (Rule 37.84). Following a bench trial, defendant was again found guilty and sentenced to thirty days imprisonment in the Municipal Corrections Institution. A timely appeal therefrom was taken by defendant to this court.

Defendant raises two points on appeal: (1) the imposition of a more severe sentence upon conviction following a trial de novo in the circuit court constituted a denial of due process of law under the Fourteenth Amendment to the Constitution of the United States; and (2) the evidence was insufficient to support the guilty verdict.

Defendant relies on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), to support her first point. Her reliance is misplaced as Pearce did not involve imposition of a harsher sentence following a trial de novo in a court of general jurisdiction after an appeal from a judgment of conviction and imposition of sentence in a municipal court for violation of a city ordinance. In a two-tier trial system which affords an accused found guilty of an ordinance violation in a municipal court a right to a trial de novo on appeal to a court of general jurisdiction, Pearce is inapplicable and Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) controls. Kansas City v. Brown, 521 S.W.2d 761 (Mo.App.1975). In Brown, at 763, the court drew the following distinction between Pearce and Colten and Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973): “Colten and the subsequent Chaffin case emphasize that vindictiveness by the court fixing the second sentence is what Pearce is intended to avoid. Just as the United States Supreme Court in Colten found that the system there involved did not open the door to the vindictive possibilities sought to be avoided by the Pearce rule, the Missouri system for de novo trial on appeal of municipal court charges likewise avoids the problems which gave rise to the Pearce rule, and Colten, not Pearce, is here controlling.” No redress for defendant is found in the first point.

The argument portion of defendant’s brief funnels her second point into a single, narrow contention — the evidence was insufficient to prove that she intentionally stole the property in question. Evidence adduced by the city disclosed that defendant went to the prescription counter of a Skaggs Drug Company store to have three prescriptions filled. She handed the three prescriptions to the pharmacist on duty along with a “Missouri Vendor’s Card” and asked the pharmacist if the prescriptions were covered “under the Vendor program”. The pharmacist checked a “formu-lary” prepared and distributed by the Missouri Division of Social Services in order to ascertain whether the three prescriptions were “covered by the Vendor program”. After checking, the pharmacist found that only one of the three prescriptions was covered and thereupon advised defendant that she would have to pay for the two prescriptions which were not covered. While the prescriptions were being filled, defendant shopped for some other items in the store. When she returned to the prescription counter the pharmacist placed the three filled prescriptions in a sack containing the notation “Please, pay cashier” and handed it to defendant. When the pharmacist did so he again advised defendant that two of the prescriptions were not covered under the “Vendor program” and that she would have to pay for them at the check-out stand. After defendant left the prescription counter the pharmacist observed her place the sack containing the prescriptions in her handbag. The pharmacist also observed that when defendant went through the check-out stand she did not pay for any of the three filled prescriptions which she had previously placed in her handbag, although she did pay for the other items which she had obtained. Defendant, testifying in her own behalf, contradicted much of the pharmacist’s testimony and feigned a lack of knowledge that she was expected to pay for any of the filled prescriptions.

In disposing of defendant’s second point, several well established principles stand out. When taking measure of the evidence to determine whether it is sufficient to sustain defendant’s conviction, it is viewed in the light most favorable to the city, accepting as true all evidence and inferences to be reasonably drawn therefrom favorable to the verdict and rejecting all evidence and inferences unfavorable thereto. Kansas City v. Waller, 518 S.W.2d 202, 206-07 (Mo.App.1974); and Kansas City v. Douglas, 483 S.W.2d 760, 761 (Mo.App.1972). Intent is rarely susceptible of being proven by direct and positive testimony and may therefore rest upon reasonable inferences drawn from the facts and circumstances surrounding the act in question. State v. Beckemeyer, 423 S.W.2d 687, 688 (Mo.1968); and State v. McCreary, 504 S.W.2d 132, 135 (Mo.App.1973). Even though different inferences are reasonably deducible from certain facts and circumstances, a permissible inference drawn by the trier of the facts should not be cast aside on appellate review. Kansas City v. Thorpe, 499 S.W.2d 454, 459 (Mo.1973); and State v. Selle, 367 S.W.2d 522, 528 (Mo.1963). Further, it is the prerogative of the trier of the facts to disbelieve the contradictory testimony of an accused. State v. Rose, 325 S.W.2d 485, 487 (Mo.1959); and State v. Turnbough, 497 S.W.2d 856, 858 (Mo.App.1973). When the record at hand is addressed by these principles it cannot be said that the evidence was insufficient to support the guilty verdict.

Judgment affirmed.

All concur.


author: SWOFFORD, Judge.

text:
    STATE ex rel. UNION ELECTRIC COMPANY, a corporation, Relator, v. The Honorable James T. RILEY, Respondent, Missouri Public Service Commission, Amicus Curiae.
    No. KCD 28967.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    William H. Ferrell, Schlafly, Griesedieck, Ferrell & Toft, Stewart W. Smith, Jr., St. Louis, for relator.
    William M. Barvick, Jefferson City, for respondent.
    Leland B. Curtis, Jefferson City, amicus curiae.
    Before PRITCHARD, C. J., and SHAN-GLER, DIXON, SWOFFORD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   SWOFFORD, Judge.

This action was instituted by the relator seeking a writ of prohibition directed to the respondent, a judge of the Circuit Court of Cole County, Missouri, prohibiting him from proceeding further or to exercise jurisdiction over certain proceedings for review of orders of the Public Service Commission of Missouri (Commission).

The underlying proceedings were the filing by the relator of certain revised tariffs permitting it to increase its rates and charges for electric service to its Missouri customers. These increases were contested by the Public Counsel of Missouri before the Commission, hearings were had, and the Commission filed its orders permitting certain rate increases. After participating in these hearings, Public Counsel filed a motion for a rehearing before the Commission, which was denied. Thereafter, Public Counsel applied for a writ of review in the Circuit Court of Cole County, Missouri and respondent issued such writ.

The relator was permitted to intervene in the Circuit Court proceedings and filed a motion to quash the writ of review and to dismiss the petition for review upon the basis that the Public Counsel lacked authority to seek review of the order or decision of the Commission. This matter was briefed and argued in the Circuit Court and the motions to quash and to dismiss were overruled. This original proceeding in prohibition followed.

This court issued a preliminary rule in prohibition and thereafter this proceeding was held in abeyance pending a decision of this court in the case of State ex rel. Missouri Power & Light Company, a corporation, Relator vs. The Honorable James T. Riley, Judge of the Circuit Court of Cole County, Missouri, No. KCD 28,848, which was pending here simultaneously with the case at bar and which involved the identical questions. The parties here, including relator, were permitted to file the briefs in the Missouri Power case, KCD 28,848, in this cause, and no new or additional briefing was requested by relator.

On January 31,1977, this court, sitting en banc, handed down its unanimous opinion in Missouri Power, case number KCD 28,848, in which it was held that the Public Counsel of Missouri had the right and power to apply for review and appeal to the courts from orders and decisions of the Commission in any proceedings in which he had participated before the Commission as an interested party, and thus, ruled adversely to relator’s position here. This decision is now final and, of course, is controlling here. State ex rel Missouri Power & Light Company, Relator v. The Honorable James T. Riley, Respondent, 546 S.W.2d 792 (Mo.App.1977). Further exposition of the law here would be without precedential value, Rule 84.16(b), Rules of Civil Procedure.

Accordingly, the preliminary rule in prohibition is discharged.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    CITY OF KANSAS CITY, Missouri, Respondent, v. Stephan N. REAGAN, Appellant.
    No. KCD 28985.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    M. Sperry Hickman, Independence, for appellant.
    Aaron A. Wilson, City Atty., Louis W. Benecke, City Prosecutor, Dennis E. Lee, Asst. City Pros., Kansas City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   SWOFFORD, Presiding Judge.

Appellant was convicted of careless driving, Section 34.115 of the Ordinances of Kansas City, in the Municipal Court. Upon a de novo trial in the Circuit Court, he was again found guilty by the court, sitting without a jury, and was fined $50.00 and costs. It is from that conviction that he appeals.

Upon an appeal from a conviction for the violation of a municipal ordinance the evidence must be construed most strongly in favor of the result reached in the trial court and the facts and inferences to be reasonably drawn therefrom are to be considered in the light most favorable to the City and all evidence and inferences to the contrary are to be disregarded. Kansas City v. Waller, 518 S.W.2d 202, 206-207[6] (Mo.App.1974); City of Kansas City v. Scanland, 506 S.W.2d 18, 20[2] (Mo.App.1974), and cases cited therein.

Applying this formula for review to the facts as they appear from the record on appeal, the trial court, sitting as the trier of the facts, could reasonably have found the following:

On the afternoon of February 28, 1976, Joan Williams was driving her automobile in a northerly direction upon Jackson Street toward its intersection with 23rd Street in Kansas City, Missouri. Jackson is a north-south street, carrying one lane of traffic in each direction, and intersects 23rd Street, an east-west street, at right angles. Twenty-third Street accommodates two lanes of traffic in each direction. The traffic at this intersection is controlled by automatic traffic lights.

As Miss Williams approached the intersection from the south, she heard a siren and shortly thereafter saw a fire truck proceeding south on Jackson north of the intersection. She brought her car to a stop on her side of Jackson, south of the intersection, and was waiting there for the fire equipment to clear. At that time, the traffic signal was green for north-south traffic on Jackson. She also observed a vehicle to her left, eastbound on 23rd Street, which entered the intersection and made a right turn and came into collision with her vehicle, stopped on the east half of Jackson south of the intersection.

Miss Williams gave no further details of the accident. The City then introduced the ordinance involved under which the defendant was charged and rested its case. After an unsuccessful motion to dismiss, the defendant testified in his own behalf.

Mr. Reagan stated that he was driving a Kansas City Star Newspaper delivery truck eastbound on 23rd Street, in the inside or median lane for eastbound traffic, at a speed under the speed limit of 35 miles per hour. As he approached the intersection, his view to the north of the intersection was obstructed by a wall surrounding a cemetery on the northwest corner and by tombstones within the cemetery property on somewhat higher ground. These obstructions were five to six feet in height. He heard no siren and saw no traffic approaching the intersection from the north. He observed the Williams car on Jackson northbound. As he reached the intersection, the light turned green for him and as he entered the intersection he observed the fire equipment for the first time. The front of the fire equipment was then about ten feet north of the intersection line. He “slammed” on his brakes in emergency application; the brakes locked; the truck swerved to the right; the load of newspapers shifted, causing the truck to turn over on its side; and, it slid (on its side) into the Williams car. The fire equipment did not collide with either the Reagan or the Williams vehicles. The defendant offered no further evidence, the trial court made its finding of guilty, imposed the fine, and this appeal followed.

The defendant raises two points on appeal, which are somewhat repetitious and overlapping, but which basically raise the same contention. He asserts that the City’s proof and all the evidence failed to establish the charge of careless driving; that the proof established only the violation of driving on the wrong side of the road, a violation not charged, and that there was no evidence that the defendant lost control of his vehicle through “his fault or driving”. All of these charges of error are without merit.

The ordinance under which the defendant was tried, Section 34.115 of the Traffic Code, provides:

“Careless driving.
Any person who drives any vehicle within this city carelessly and heedlessly, in disregard of the rights or safety of others; or without due caution and circumspection; or at a speed and in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of careless driving.” (Emphasis added)

The information charged the defendant with a violation of this ordinance “by virtue of losing control of the vehicle and striking a stopped vehicle.”

The offense proscribed by this ordinance is, as defendant asserts, a separate and distinct offense under the Traffic Code. However, the long-established rule dispositive of defendant’s position is stated in State v. Todd, 477 S.W.2d 725, 728[9-ll] (Mo.App.1972), a case involving a charge of careless and imprudent driving under the statutes, where the court said, 1. c. 728:

“ * * * The general rule, to be responsible for careless and imprudent driving, is that an act which is made a separate offense, or which may not be a separate offense in itself, cannot be punished as careless and imprudent driving unless the act, in connection with other circumstances constitutes careless driving. * * * ” (Emphasis supplied)

The case of City of Kansas City v. Scanland, 506 S.W.2d 18, 21[9] (Mo.App.1974), followed and applied the rule above stated in Todd as applicable to the careless driving ordinance of Kansas City. In Scanland, the defendant’s vehicle went onto the wrong side of the road and into collision with another vehicle. See also: Kansas City v. Douglas, 483 S.W.2d 760 (Mo.App.1972); and State v. Tevis, 340 S.W.2d 415 (Mo.App.1960).

Each of these opinions, and the cases cited therein, adhere to the principle that the basic factor to support a charge of careless driving is that the defendant’s conduct (whether or not such conduct might support another charge) under all the facts and circumstances and the conditions existing at the time was such as to endanger the property or persons of others. State v. Todd, supra, at 1. c. 728[11]; City of Kansas City v. Scanland, supra, at 1. c. 21[9).

Further, in City of Kansas City v. Scan-land, supra, at 1. c. 21[9], this court said:

“ * * * What additional circumstances must be present in order to constitute careless driving is á matter to be decided as a question of fact in each particular case by the trier of the fact. * * * ” (Emphasis added)

In the case at bar, the evidence and the reasonable inferences to be drawn therefrom amply justified the conclusion that defendant’s conduct of inattention, speed and panic upon discovery of fire equipment on a collision course, and loss of control of the paper truck under the conditions and circumstances at the intersection of 23rd and Jackson endangered the property and person of Joan Williams. The trial court's judgment was not against the weight of the evidence, was supported by substantial evidence, did not erroneously declare or apply the law, and will not be disturbed. Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).

The judgment is affirmed.

All concur.


text:
    Willie G. DOVE, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28999.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.

      Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., and WASSER-STROM and TURNAGE, JJ.
   TURNAGE, Judge.

Willie Dove filed a motion under Rules 27.25 and 27.26 to vacate his conviction and sentence. Dove was sentenced to 17 years confinement following his plea of guilty to murder in the second degree.

The court held an evidentiary hearing on the motion to vacate and after making findings of fact and conclusions of law, overruled the same.

On this appeal Dove raises the single point the court erred in overruling his motion because he had been denied the right to effective assistance of counsel. Affirmed.

Dove was originally charged with murder in the first degree as a result of his participation in a robbery.

Dove originally pleaded not guilty, but later appeared with his court-appointed attorney and entered a plea of guilty to murder in the second degree. At this time a full and complete record was made which covers 18 pages. In this proceeding Dove on several occasions stated he knew he was pleading guilty, knew he was originally charged with murder in the first degree, and the charge had been reduced to murder in the second degree. He further stated he was not acting under any compulsion or as result of any promise or threat. He stated on several occasions he was pleading guilty only because he was guilty. He stated he understood the State had reduced the charge and recommended he would be given a sentence of 17 years. The court informed him he would be sentenced to 17 years and Dove stated he still wanted to plead guilty under those circumstances.

Dove was represented by appointed counsel, Thomas Cox, Jr., an experienced criminal lawyer. Dove stated in the guilty plea hearing he was fully satisfied with Mr. Cox’s services. He stated he had conferred with Cox on several occasions and Cox had fully advised him concerning his right to a jury trial and Dove acknowledged he understood a jury was in fact on hand and ready to try the case the very morning he entered his plea of guilty. He stated he was 21 years of age with 9½ years of formal education, and he fully understood all of his rights. At the conclusion of this hearing the court accepted the guilty plea and sentenced Dove to a term of 17 years.

At the hearing on the motion to vacate, Mr. Cox testified as to the work he had put in on the Dove case and the many conferences he had held with Mr. Dove. He stated he had filed a pre-trial motion to suppress a confession made by Dove, but this was overruled. He stated Dove had given him the name of an alibi witness but he was unable to locate this person. Cox stated he was ready and willing to try the case but thought the State had a strong case and felt he had accomplished a good result for Dove in persuading the State to reduce the charge and to recommend a term of 17 years when he felt a jury would very likely convict Dove of first degree murder with a mandatory sentence of life imprisonment.

Dove testified at the hearing on his motion. He denied he had participated in the crime and stated Cox had told him what to say during the guilty plea hearing and his statements at that time were only made because Cox had told him what to say.

In its findings of fact the court found Dove had been represented by one of the most experienced lawyers in criminal matters in the Kansas City area, and the court had found Dove was acting freely and voluntarily with full realization of his rights at the time he pleaded guilty. The court found Dove had entered his plea of guilty because he was in fact guilty and the State would have a strong case against him and the jury could reasonably have found him guilty of murder in the first degree. The court further found there was no evidence to show Dove had been threatened or had been told what to say in the guilty plea hearing. The court further found there was no evidence to show Cox had told Dove that if he went to trial he would be without a defense.

In his motion under Rules 27.25 and 27.26, Dove had the burden of establishing grounds for relief by a preponderance of the evidence. Coleman v. State, 542 S.W.2d 53, 54[1, 2] (Mo.App.1976). It is further stated in Coleman:

“The ultimate test of the effectiveness of counsel in a guilty plea situation is whether there was such adequacy of representation that the plea is voluntarily and understanding^ made.” 542 S.W.2d 54[3, 4].

The only evidence Dove points to in his brief to show the ineffective assistance of counsel is his own testimony. He completely overlooks the testimony of Mr. Cox and the statements he made under oath at the time he entered his plea of guilty.

On appeal this court will defer to the determination of the credibility of witnesses by the trial court. Mistler v. State, 542 S.W.2d 619, 620[3, 4] (Mo.App.1976). No abuse of discretion is shown or attempted to be shown on the part of the trial court in its finding in which it chose to believe the testimony of Mr. Cox and the statements made by Dove during the guilty plea.

The judgment of the court is supported by substantial evidence and is not clearly erroneous. Rule 27.26(j).

The judgment is affirmed.

All concur.


author: STONE, Judge.

text:
    In the Interest of T. L. C. and T. D. C., children under the age of 17 years.
    No. 10013.
    Missouri Court of Appeals, Springfield District.
    June 28, 1977.

      James E. Brown, Joplin, for appellant.
    R. Deryl Edwards, Joplin, for respondent.
   STONE, Judge.

In this statutory proceeding under our Juvenile Act [§§ 211.011 to 211.431, RSMo 1969, Y.A.M.S.], the natural mother of T.L.C. and T.D.C. appeals from the judgment of the juvenile court committing both children, girls then seven and five years of age, respectively, to “the care and custody of the Missouri Division of Family Services for placement in foster homes pending further Juvenile Court hearing.”

Four witnesses, namely seven-year-old T.L.C., her mother and stepfather, and the juvenile officer of Jasper County, testified at the hearing in juvenile court upon the amended petition filed by the deputy juvenile officer. At that hearing, the mother and the juvenile officer were capably represented by adversary counsel who in like manner have briefed and presented the case here. In our view of the matter, a brief outline of the factual situation shown by the testimony will suffice.

When the juvenile authorities initially investigated and intervened in September 1974, the mother and the two girls, T.L.C. and T.D.C., were three members of a six-member household unit, the other three members being J.M., the mother’s husband in a then three-year-old marriage, and two girls, one of whom was then about eight months and the other about one year eight months of age, born of that marriage. The natural father of the two girls, T.L.C. and T.D.C., who are the objects of concern in this proceeding, is neither identified nor mentioned in the record.

The primary thrust of the seven-year-old’s testimony was directed to a certain occasion (apparently the most recent one) when, in the absence of the mother from the home in the evening and after the two girls were in bed, the stepfather came into the girls’ bedroom, “sat on the bed” with them, engaged in sexual exposure and exhibitionism, and insisted that the girls participate in contrectation of his “private” for the apparent purpose of engendering or supporting its tumescence. T.L.C. also testified that the stepfather had engaged in like conduct on other nights, always in the absence of the mother.

The stepfather denied that there had been any such incidents of sexual exposure or exhibitionism, and thereafter under the guidance of the mother’s counsel offered a detailed account of the only occasion (so he declared) on which the two girls had glimpsed his “private.” As he described that incident, he was in the bathroom between “the girls’ bedroom” and “our bedroom,” still clothed but “in the process of relieving [himself] there at the toilet,” when the girls “shocked” him by entering from the latter bedroom. And, although he “tried [his] best to hide [himself],” when the girls asked “[w]hat is that,” he “was dumbfounded because [he had] not had that happen before,” so he answered “[t]hat’s just my pony tail” and told them to “just forget it, just go on to bed.”

The mother asserted that she had no personal knowledge of, and no reason to suspect, any misconduct by her husband, the stepfather, in his relationship with the children. However, she readily conceded that, about one week before the deputy juvenile officer called her, both T.L.C. and T.D.C. had told her that the stepfather “had showed his thing to them” (one of the girls said “in the bedroom” and the other “on the way back from the baby sitters”) — revelations or charges to which her strange and atypical maternal response was that she “told them to go in the other room and think about it and come back and tell me the truth,” which worked the not surprising, if not desired, result that they “come back in and said they were only teasing.”

The record indicates that the babysitter for the girls (not so ready and willing as the mother to discredit, dispute and discard the girls’ statements) brought this family situation to the attention of the deputy juvenile officer of Jasper County who shortly thereafter instituted this proceeding in the juvenile court.

On this appeal by the mother from the judgment of the juvenile court, her counsel assigns error in three particulars, to wit, (1) that both the original petition and the amended petition were signed by the deputy juvenile officer rather than the juvenile officer himself, (2) that the evidence was insufficient to support the findings and judgment of the court because the testimony of seven-year-old T.L.C. was so vague, inconsistent and contradictory as to be of no probative value, and (3) that “the court erroneously considered as evidence unknown matters told to him by T.L.C. and T.D.C. in chambers” and also out-of-court statements of T.L.C. as reflected and embodied in a typewritten statement prepared by Ellen Wilson, identified as a counselor in the juvenile office.

As for the first two points, suffice it to say that, after consideration in the light of the record and relevant authorities, we are satisfied that each of those points is without merit and that no good purpose would be served by discussion of them here.

The third point requires further attention. At the close of the testimony, the mother’s counsel requested and was given permission “to be heard on this matter,” which was followed by a fervent and hypercritical statement in which counsel declared, inter alia, that seven-year-old T.L.C. “really said nothing in the course of her testimony,” branded that testimony as “utterly incredible” insofar as it pertained to the stepfather’s alleged misconduct, and closed with the request that the court rule “that there has been no misconduct; that the welfare of these children have (sic) not been affected in any way, shape or form; and that they are entitled to be restored to the custody of their mother.”

To which the court promptly responded in this wise:

“I have here a typewritten statement that was taken from [T.L.C.] by Mrs. Ellen Wilson who is a counselor in the Juvenile Office. I don’t know whether you have seen it previously or not, but I have had it marked as Court’s Exhibit 1 and it will be admitted and I will let you look at it. Mrs. Wilson is in the office if you desire to question her concerning the statement, and I’ll bring her in here at this time and give you an opportunity to cross-examine her on it.”

In the ensuing colloquy, the mother’s counsel objected to the introduction of this exhibit because (a) “[i]t’s hearsay in its most gross form” and (b) “[b]oth sides have rested their case,” but the court pointed out that the exhibit already had been admitted and again inquired whether counsel desired to cross-examine Mrs. Wilson, evoking the reply of counsel apparently resigned to the obvious, “p]t will be of no use, sir.”

Whereupon, the court immediately proceeded to this voluntary disclosure:

“The court will further state that I have talked with both of these girls in my office and also one of them [T.L.C.] has been interrogated in the courtroom, and the opinion and what I am writing is based upon all the evidence I have heard in addition to [the stepfather's] testimony.” (Emphasis ours)

And, without indicated pause, interruption or comment the court then stated his findings, made the two girls wards of the court, and “placed [them] in the care and custody of [the] Missouri Division of Family Services for placement in foster homes pending further hearing.”

This is a civil proceeding and not a criminal action [§ 211.271] and the “proce dure customary in proceedings in equity” governed in the juvenile court. (Emphasis ours) § 211.171(6); In Interest of R.L.P., 536 S.W.2d 41, 42(2) (Mo.App.1976). The welfare and best interests of the involved minor children being of paramount importance and concern not only in juvenile proceedings but also in dissolution of marriage cases and formerly in divorce proceedings, we regard appellate judicial discussions and pronouncements in the latter two categories of cases concerning in camera talks or “visits” with minor children as relevant and persuasive in juvenile proceedings, and particularly so where, as here, disruption of the parent-child relationship and placement in a foster home may result.

Section 18 of our Dissolution of Marriage Code [Laws of 1973, p. 478; § 452.385, V.A. M.S.] provides that, if the court elects to interview a child in chambers “to ascertain the child’s wishes as to his custodian and relevant matters within his knowledge”, the court shall permit counsel to be present and participate and shall “cause a record of the interview to be made and to be made part of the record in the case.” For noncompliance with these requirements, the custodial decree in Duncan v. Duncan, 528 S.W.2d 806 (Mo.App.1975), was set aside and the cause remanded.

Although prior to January 1, 1974, the effective date of the Dissolution of Marriage Code, there was no statutory provision concerning in camera interviews, talks or visits with minor children, such unrecorded talks in the absence of counsel sometimes became the subject of appellate complaint by counsel and comment by the court. E. g., see Lipsey v. Lipsey, 464 S.W.2d 529, 534(8) (Mo.App.1971); Roper v. Roper, 461 S.W.2d 330 (Mo.App.1970); Benjamin v. Benjamin, 370 S.W.2d 639, 642-643 (Mo.App.1963), each of which was a proceeding to modify the provisions of a divorce decree relating to the custody of minor children. For the purposes of this discussion, suffice it to say that those cases supported the view that, no matter how well-intentioned the trial court might have been, an in camera talk with the minor child or children should not have been conducted.

In the case before us, the court’s in camera interview or talk with both T.L.C. and T.D.C. was revealed voluntarily as a fait accompli and apparently as a lead-in to, and further support for, the order making the two girls wards of the court and placing them in the care and custody of the Missouri Division of Family Services for placement in foster homes. Having had no prior knowledge of, and thus no opportunity to be present at, the court’s in camera visit with the two girls, certainly counsel could not have been charged with interposing an objection to that of which he was not even aware.

In the stated circumstances, we are constrained to conclude that the cause should be reversed and remanded for further proceedings, not inconsistent with the views herein expressed. Cf. In Interest of M_CL_, 504 S.W.2d 641, 647 (Mo.App.1974). It is so ordered.

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