author: VANCE, Judge.

text:
    C. G. CAMPBELL & SON, INC., Appellant, v. COMDEQ CORPORATION, d/b/a Kentucky Food Service Equipment Division, Appellee.
    Court of Appeals of Kentucky.
    Aug. 17, 1979.
    As Modified Aug. 24, 1979.
    William A. Buckaway, Jr., Tilford, Dobbins, Caye & Alexander, Louisville, for appellant.
    Martin R. Snyder, Taustine, Post, Ber-man, Fineman & Kohn, Louisville, for ap-pellee.
    Before HOGGE, REYNOLDS and VANCE, JJ.
   VANCE, Judge.

The question presented is whether an exception, based upon equitable considerations, should be permitted to the strict enforcement of the requirement of a written document contained in K.R.S. 355.2-201 of the Uniform Commercial Code. It provides as follows:

(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500.00 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought .

Appellee submitted an oral telephone bid to appellant, a general contractor, that ap-pellee would furnish items of kitchen equipment for the construction of a school building. The appellant used this bid in calculating his bid price for the overall job and was awarded the contract. After appellant was awarded the contract, appellee discovered that it had overlooked the fact that four refrigeration units were required by the plans and refused to perform the work for the bid price. Appellant instituted suit for the difference between appellee’s bid and the actual cost of securing the kitchen installation from another source. Summary judgment was granted to appellee.

There is no dispute as to facts. Appellant asserts that the kitchen installation was a “speciality item,” upon which prices would vary greatly, and that by custom of the trade contractors generally accepted last minute oral bids on these items although requiring written bids upon the other subcontracted portions of the job. Appellant contends that equity should intervene to alleviate the harsh effects of Section 2-201, especially when the bidder knew that the contractor would use the bid price in formulating his bid, because inability to enforce performance of the bid offer would cause substantial loss to the contractor through no fault of his own and allow the oral bidder to escape all consequences of the loss caused by him.

Appellant relies upon Drennen v. Star Paving Company, 51 Cal.2d 409, 333 P.2d 757 (1958) which did allow equitable relief in a similar situation. Appellee points out, however, that Drennen preceded the adoption of the Uniform Commercial Code, and relies upon the opposite holding reached in C. R. Fedrick, Inc. v. Borg-Warner Corp., 552 F.2d 852 (9th Cir. 1977).

K.R.S. 355.2-201 is not ambiguous. It requires a writing signed by the party to be charged or his agent sufficient to show that a contract was made between the parties. Absent such a writing, there can be no enforcement either by action or defense.

Equitable relief has sometimes been granted to relieve the harsh effects of the Statute of Frauds. Drennan, supra; Restatement of Contracts § 90 (1932).

The Uniform Commercial Code contains its own statutory method of alleviation of hardships caused by Section 2-201(1). Section 2-201(2) provides:

(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten (10) days after it is received.

Thus a written memorandum of confirmation, not specifically rejected, will satisfy the requirements of Section 2-201(1).

Of course we recognize that the relief provided by 2-201(2) cannot be effective in a ease such as this where the oral bid was used and the contract awarded before there was any time to comply with 2-201(2). Nevertheless, the Uniform Commercial Code is a legislative attempt to achieve uniformity of law among the states as to commercial practices, and the limited relief provided by 2-201(2) is as far as the legislature was willing to go. The policy this state shall adopt with respect to commercial practices is properly a legislative concern, and the language of the statute is not ambiguous.

We believe any attempt by the courts to judicially amend this statute which is plain on its face would contravene the separation of powers mandated by the Constitution.

We are not unmindful of the decision of the Supreme Court in Meade Construction Company, Inc. v. Mansfield Commercial Electric, Inc., Ky., 579 S.W.2d 105 (1979). There it was held that a subcontractor who submits a bid for a contract should be bound when it was reasonable to foresee that the bid would be relied upon in the formulation of an overall bid by a contractor.

Meade, supra, did not discuss the effect of the Uniform Commercial Code. In Meade there was a written verification of the bid subsequent to the oral bid which may have removed the application of the statute of frauds. In any event, there was no discussion in Meade as to the effect of Section 2-201(1) of the Uniform Commercial Code nor any indication that the holding would have been the same if KRS 355.-2-201(1) had been applicable. For this reason we feel that Meade is distinguishable and not controlling.

Appellant also contends that certain correspondence between the parties was a sufficient memorandum to satisfy Section 2-201. It seems clear, however, that the full import of the correspondence shows a lack of “meeting of the minds” and a denial rather than confirmation of a contract.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: REINHARD, Presiding Judge.

license: Public Domain

text:
    Robert COOK and Eleanor Cook, Respondents, v. Henry EILERS, Appellant.
    No. 40551.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 31, 1979.
    Daniel W. Brown, St. Louis, for appellant.

      Lawrence B. Grebel, St. Louis, for respondents.
   REINHARD, Presiding Judge.

Appeal from a judgment decreeing specific performance of a real estate sale contract on plaintiff-buyers’ behalf. We affirm.

The parties submitted the case to the trial court on the following stipulated facts: Plaintiffs contacted defendant in response to certain newspaper advertisements in which defendant offered his residence for sale at a price of $29,500. After plaintiffs secured an appraisal of the home at $27,000, the parties signed a form land sale contract establishing the purchase price at $27,900, and which acknowledged receipt of certain earnest money. Defendant later repudiated the contract and caused plaintiffs’ earnest money deposit to be refunded. Plaintiffs have held themselves out as ready, willing and able to perform by payment in full of the purchase price, at the time scheduled for closing and since.

The conflict on this appeal centers on certain imperfectly expressed terms of the “fill-in-the-blank” form contract, set out in pertinent part below (Those portions of the contract that constitute the pre-printed form are in Roman type, whereas the terms typed in the blanks by the parties appear in italics):

. . . which property is this day agreed to be sold to purchaser subject to approval of seller by noon of_, 19_, and not otherwise (and if not so approved earnest deposit shall be returned to purchaser) for the total sale price of Twenty Seven Thousand Nine Hundred Dollars ($27.900 1 on the following terms:

Earnest deposit made as per this receipt.$ 1.000
Additional earnest deposit to be made by purchaser on _, 19.. $_
Cash to be paid on closing date of sale as hereinafter fixed (subject to adjustments as herein provided) .. S 7.000
Deed or deeds of trust of record, subject to which title shall be transferred .$_ description:
Earnest money to be deposited it [sic] Missouri Title Co. 904 Chestnut
Deed or deeds of trust to be accepted by seller as part purchase money. $_
(Insert terms including type of loan, interest rate, method of payment, term of years, prepayment privilege, if any commission, if any, and any special provisions.)
Purchaser to obtain loan Deal subject to termite inspection to be completed by July 1st

The contract, dated June 27, 1977 had a November 12, 1977 closing date.

In support of its judgment ordering specific performance, the trial court entered conclusions of law to the effect that an uncertainty existed in the portion of the contract above quoted as to the method of payment of the purchase price; that this uncertainty did not relate to an essential element of the contract; and that where such an uncertainty exists, the manner of payment is impliedly by cash. The court ordered closing to take place within 3 months of the date of its judgment.

On appeal, defendant contends that the trial court erred in finding that an enforceable contract exists between the parties for the reason that the contract is “vague and uncertain as to the sales price of the real estate . . . and sales price is an essential element of any real estate contract.” Although defendant abandoned this contention by failing to develop the point in the argument portion of his brief, we note that the trial court was correct in finding there was no uncertainty as to the sales price itself, that clearly being $27,900.

The trial court did find, because of the disparity between the stated purchase price ($27,900) and the amounts required to be paid by closing ($7,000 cash plus the $1,000 earnest deposit) with no provision for the payment of the remainder, that an uncertainty existed as to the method of payment of the purchase price. While defendant agrees with this finding, he takes issue with the remainder of the order below, insisting that the contract was unenforceable in that the manner of payment is an essential element of a contract, and may not be supplied by the court. Defendant also claims that the trial court erred in decreeing that cash be implied as the means of payment where no other manner is specified.

This precise factual situation has apparently never been treated in a reported case in Missouri. However, certain Missouri cases which have undertaken to catalogue the “essential” elements of a contract, absence of which is fatal to an action for specific performance, fail to include means or method of payment in their litany: “The essential terms of a contract for it to be specifically performable, [are] as follows: ‘. . . (1) The parties; (2) The subject matter; (3) The promises on both sides; (4) The price; and (5) The consideration’ ”, Wilkinson v. Vaughn, 419 S.W.2d 1, 6[10] (Mo.1967), citing Ray v. Wooster, 270 S.W.2d 743 at 752 (Mo.1954).

Nevertheless, it is clear that, under certain circumstances, contractual provisions as to manner or means of payment are treated as “essential” terms for the purpose of specific performance. Where the parties to an agreement have expressly provided that terms governing the manner or means of payment of consideration are left to be agreed upon at some future time, the courts will not supply the missing terms in specific performance proceedings, Huff v. Shepard, 58 Mo. 242 (1874). The underlying rationale is that:

So far as the defendant had bound itself at all, it was upon an express stipulation that the terms of payment should be only such as he might thereafter consent to in a further agreement. Time — being included in the terms — thus became of the essence of the contract.
Such an undertaking to settle terms at a future day, is beyond the reach of any decree for specific performance. The court cannot compel the parties to agree.

Huff v. Shepard, l.c. at 247.

Similarly, where the parties have expressly provided for deferred payments of the purchase price, but neglected to specify amounts or times for such periodic payments, specific performance will not lie. Baldwin v. Corcoran, 320 Mo. 813, 7 S.W.2d 967 (1928); Terry v. Michalak, 319 Mo. 290, 3 S.W.2d 701 (1928). The rationale for the rule with regard to deferred payments is that the court cannot be expected to supply terms governing the nature and amount of security for the deferred obligation, evidence of the obligation, or regulation of interest or prepayment privileges, Terry v. Michalak, supra at 704. The parties having announced their intention to become involved in the added complexities of a deferred payment agreement, those complexities rise to the level of materiality, and will not be supplied unilaterally by a court of equity.

However, where, as here, no attempt is made to put off an agreement as to means of payment of the contract price, or deferred payments are not contemplated, and it appears that agreed payment terms are merely omitted or imperfectly stated, these rationales do not obtain.

In the instant case, no attempt was made to defer agreement as to payment terms. The contract itself, as set out above, contains a provision calling for plaintiffs to obtain a loan in payment of the purchase price. This provision was typed in by the parties, and was not a part of the printed format of the contract. This precludes any inference that deferred payments were intended. Also, the space provided for details concerning any purchase money deed of trust to be taken by the seller, and which would be utilized for securing any deferred payments due him, was left blank.

In such a case, it has been held that tender of performance by payment of the full purchase price in cash cures the formal defect of the written agreement as to means or manner of payment, the law implying that money is to be the medium of payment, Matlack v. Arend, 2 N.J.Super. 319, 63 A.2d 812, 817[8] (1949). Further, where such a tender of performance is made, the seller’s failure to raise the ground of his right to receive deferred payments operates as a waiver of whatever right, if any, he had to so insist, Taylor v. Wells, 188 Or. 648, 217 P.2d 236, 241[6] (1950). The record below reveals no such protestation on defendant’s part in response to plaintiffs’ having held themselves out as ready, willing and able to perform by payment in full, in cash, of the purchase price. Further, at no point in these proceedings has defendant contended that deferred payments were contemplated.

Accordingly, we hold that where it appears that the parties to a contract did not contemplate deferred payments as a means of paying the purchase price, and where the parties did not expressly undertake to defer an agreement as to the method of payment of that price to some future time, the mere omission or imperfect expression of terms in the contract relating to means or method of payment will not operate as a bar to specific performance, the contract being otherwise enforceable, Taylor v. Wells, supra, Matlack v. Arend, supra.

This leaves the question of the propriety of the trial court’s conclusion that, where terms of a contract are silent as to the manner or method of payment, payment in cash will be implied for purposes of enforcing performance. The trial court’s statement correctly declares the law in this regard, Swedish-American Nat. Bank v. Merz, 179 N.Y.S. 600 (N.Y.Sup.1919); see also Matlack v. Arend, supra.

The motion filed by plaintiffs for damages for frivolous appeal, and which we ordered taken with the case on submission, is hereby denied.

Finally, the time set for closing by the trial court under the decree of specific performance has elapsed during the pendency of this appeal. Accordingly, it is further ordered that the date of closing shall be no later than 60 days from the date of this court’s mandate herein.

Affirmed.

GUNN and CRIST, JJ., concur.


author: CRIST, Judge.

text:
    STATE of Missouri, Respondent, v. Robert NORMAN, Appellant.
    No. 40076.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 7, 1979.

      Robert A. Hampe, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Brenda Farr Engel, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Edward J. Rogers, Asst. Circuit Atty., St. Louis, for respondent.
   CRIST, Judge.

After a jury-waived trial, the trial court found defendant guilty of receiving stolen goods and sentenced him to a term of three years imprisonment.

Upon appeal, defendant claims the state failed to prove that he received the stolen goods and that he had knowledge at the time of the receipt of the goods that such goods were stolen. We disagree. Defendant’s statements to the police together with the surrounding circumstances establish the necessary elements of the offense of receiving stolen goods.

A confidential informant telephoned the police at 8:00 p. m. on February 10, 1977 to relate that three individuals in a white, 1973 Buick with the license # PG3636 were selling typewriters in the area of Taylor Street and Delmar Boulevard, a commercial district of the City of St. Louis. Two plainclothes police officers were dispatched to the area in an unmarked vehicle and arrived at about 8:15 p. m.

Defendant was standing near the rear of his automobile with the trunk open. He was holding a typewriter. Defendant placed the typewriter on the curb of the sidewalk. When police approached, they discovered another typewriter, a postage scale, and another item of office equipment in the defendant’s automobile trunk and three rolls of copper wiring next to the automobile. The police questioned the defendant and two other persons who had been seated in the automobile when the police first approached, and Miranda rights were then read. Defendant then asked to speak privately with one of the officers.

In response to defendant’s request to speak privately with the police, the police interviewed defendant as he sat in the rear of the police vehicle. Defendant told police he did not want to be blamed for what he feared were stolen items and that, because he did not want to be involved in a burglary, he would tell them what he knew about the property.

Defendant related that the other two suspects and a third person came to his house at 8:00 p. m. with the office equipment and asked defendant if he knew someone who would be interested in buying the property. Defendant told them he did. Some of the equipment was loaded into defendant’s automobile, and the remainder was placed in his basement.

After receiving this information, the police went to defendant’s home where additional office equipment was discovered. Police observed a business card from the Kaemmerlin Electric Company in one of the items of office equipment. The police went to Kaemmerlin Electric Company and ascertained that the property in question had been stolen during a burglary committed earlier in the evening. Defendant was arrested after the burglary was confirmed.

In determining the sufficiency of the evidence to sustain defendant’s conviction, we must consider the facts and the favorable inferences reasonably to be drawn therefrom in the light most favorable to the state. All facts and inferences to the contrary must be disregarded. State v. Trask, 581 S.W.2d 417, 418[1-2] (Mo.App.1979).

The essential elements of the offense of receiving stolen property are: (1) the accused must have received the property in some way from another rather than being the actual captor of the property; (2) the property is stolen property at the time of reception; (3) the accused has guilty knowledge the property was stolen at the time of reception; and (4) the accused must have received the property with a fraudulent or criminal intent. State v. Inman, 578 S.W.2d 336, 337 (Mo.App.1979). Appellant argues the state did not prove defendant received the property or that he received property knowing it to be stolen.

We believe the state’s evidence sufficiently proved defendant’s possession of the property. State v. Dittman, 569 S.W.2d 363, 364-65[1] (Mo.App.1978) (mere access or proximity to the stolen property does not imply possession, but actual and exclusive possession need not be proven, and constructive possession, the power and intent to control the stolen property is sufficient). Our decision that the defendant’s possession of the stolen property constituted a criminal offense is controlled by State v. Johnson, 580 S.W.2d 254 (Mo. banc 1979). In that case, police had received a telephone call from a confidential informant telling them a group of people were seen carrying tape recorders into a vacant building. The police did not have independent information regarding any burglary in which the tape recorders had been taken. The defendant was discovered with three other persons in a room in a vacant house. He was holding a tape recorder which proved to be stolen and endeavoring to remove marks identifying the owner of the property. The court held the evidence made a submissible case and that the evidence proved possession and reception of property with knowledge it was stolen. State v. Johnson, supra at 257-58[4—5]; accord, State v. McAnulty, 491 S.W.2d 259, 260-61[1] (Mo.1973). The presence of circumstances which permit the inference that others are involved and were the captors of the property provide the additional circumstances necessary to find the accused’s possession of property was as the receiver of stolen property. State v. John son, supra; accord, State v. McAnulty, supra. Further, the method chosen by which to dispose of the property may imply guilty knowledge. State v. McAnulty, supra.

In the instant case, the defendant was found in the possession of stolen property in the presence of others from whom he sought to dissociate himself concerning a burglary as yet unspecified. Portions of defendant’s explanation, such as defendant’s statement he came into possession of the goods at 8:00 p. m. at his home, were inconsistent with facts known to the police, such as knowledge that at 8:00 p. m. the defendant was about three miles from his home with the goods. The receipt of office equipment and rolls of copper wire late in the evening, coupled with an attempt to sell the goods on the city streets after normal store hours, is not consistent with the acts of an innocent man. We find sufficient facts were shown proving defendant received the goods with knowledge that they were stolen.

The judgment is affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: KELLY, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellant, v. Johnny M. JOHNSON et al., Defendants-Respondents.
    No. 39584.
    Missouri Court of Appeals, Eastern District, Division 3.
    Aug. 14, 1979.

      Marion F. Wasinger, Wasinger & Par-ham, Hannibal, for plaintiff-appellant.

      Brown & Phillips, Edina, for defendants-respondents.
   KELLY, Judge.

This is an action instituted by the appellant, State Farm Mutual Automobile Insurance Company (hereinafter State Farm) for a declaration of its rights and duties under a contract of automobile liability insurance with Johnny M. Johnson and Roberta L. Johnson, his wife. § 527.010 RSMo. 1969; Rule 87.

The declaration sought was whether the automobile being operated by Mrs. Johnson on December 8, 1973, when it came into collision with another automobile was a “Non-owned Automobile” or a “Temporary Substitute Automobile,” as those terms are employed in the insurance contract with the Johnsons.

The trial court entered a judgment declaring that the automobile was a “Temporary Substitute Automobile” within the meaning of the contract; that it was not furnished or available for the frequent or regular use of the Johnsons; and that they were afforded liability insurance coverage by the insurance policy aforesaid for the collision of December 8, 1973.

Appellant has appealed this judgment and on appeal presents six Points Relied On for review. We conclude that of these six Points only three comply with the requirements of Rule 84.04(d) and therefore we review only those.

Points II and III of appellant’s Points Relied On, as we construe them, raise the question whether the trial court erred in submitting special verdict forms to the jury relative to the questions whether the automobile being operated by Mrs. Johnson at the time of the collision was a “Temporary Substitute Automobile” or whether it was a non-owned automobile furnished or available to Mrs. Johnson because under the evidence these questions were matters of law and not matters of fact.

According to the insurance contract a “Non-Owned Automobile” is defined as “an automobile . . . not (1) owned by, (2) registered in the name of, or (3) furnished or available for the frequent or regular use of the named insured, his spouse or any relative of either residing in the same household other than a temporary substitute automobile.” A “Temporary Substitute Automobile” is defined as “an automobile not owned by the named insured or his spouse while temporarily used with the permission of the owner as a substitute for the described motor vehicle when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.”

These same policy provisions have been considered by the Supreme Court of Missouri in State Farm Mutual Automobile Insurance Company v. Western Casualty and Surety Company et al., 477 S.W.2d 421 (banc 1972) and that case sets out certain legal principles relevant to our consideration of the issues herein presented.

According to the Supreme Court this policy is intended basically to provide coverage on the described automobile — here a 1966 Pontiac 4-door automobile — in return for the payment of a premium based upon single car coverage. However, it does contain clauses providing limited additional coverages without the payment of a further premium therefor.

One such additional coverage is the “Temporary Substitute Automobile” defined hereinabove and a second additional coverage is for operation of a “Non-Owned Automobile” when either is being used by the named insured or insureds. This latter is ofttimes referred to as the “drive other cars” provision. Each of these forms of additional coverage is, however, consistent with the basic idea of insuring one automobile for one premium.

With respect to the “Temporary Substitute Automobile” provision of the contract, it is only when the car designated in the policy is withdrawn from normal usage by reason of one of the causes specified therein that the insured is afforded the coverage of the policy with respect to any collision which might occur while insured is operating said substitute automobile. When the vehicle qualifies for coverage under this clause of the policy, it becomes an “owned” automobile for insurance purposes.

The purpose of this clause is to make the coverage in the policy reasonably definite as to the vehicle the insured intended to normally use, while at the same time permitting the insured to continue to operate another motor vehicle should the particular vehicle described in the policy be temporarily out of commission, and thus enable the insurer to issue a policy upon a rate fair to both the insured and the insurer, rather than one at a prohibitive premium for blanket coverage of any and all vehicles which the insured might own or operate. Lloyds America v. Ferguson, 116 F.2d 920, 923[3] (5th Cir. 1941).

To bring an automobile other than the motor vehicle described in the policy under this clause, not only must it be shown that the vehicle described in the policy of insurance is in such condition that it is incapable of being driven in any normal use, as by break-down, repair, servicing, loss or destruction, but also that the substitute vehicle is in use for the purposes for which the insured vehicle would be used were it in an operable condition. Sellers v. Allstate Insurance Company, 25 Ariz.App. 482, 544 P.2d 699, 702[4] (1976), rev’d on other grounds, 113 Ariz. 419, 555 P.2d 1113 (banc 1976); Strozewski v. American Family Mutual Insurance Co., 46 Wis.2d 123, 174 N.W.2d 550 (1970).

The “drive other cars” clause is included in the contract of insurance for the purpose of covering the occasional or incidental use of another car by the insured without the payment of an additional premium, but to exclude from said coverage the habitual use of other motor vehicles so that the risk of the insurance company is increased without the payment of an additional premium charge for said coverage. Annot., 86 A.L.R.2d 937, 940 (1962). In order to limit this additional coverage State Farm provided that this additional coverage would not apply to a non-owned automobile “furnished or available for the frequent or regular use of the named insured * * * other than a temporary substitute automobile.”

With these basic principles in view, we proceed to consider the evidence to ascertain whether a submissible case was made on these issues.

The verdict of a jury in a declaratory judgment action is the same as the verdict in other civil actions, and the court’s action in incorporating the verdict of the jury into its decree does not change the verdict into a finding of the court that we may review as an equity matter. In such circumstances our review is limited to the same matters as it is in other civil jury verdicts, i. e. was there a submissible case made? Fidelity and Casualty Company of New York v. Western Casualty and Surety Company, 337 S.W.2d 566, 574 (Mo.App.1960).

In declaratory judgment actions the burden of proof usually rests where it would have rested had a different type of suit been brought and this often depends upon the condition of the pleadings and the character of the issues involved in the case. M.F.A. Mut. Ins. Co. v. Quinn, 259 S.W.2d 854, 858[1] (Mo.App. 1953). The court in Quinn held that where the question for decision was whether an insurance policy issued by the plaintiff was in force at the time of the collision, the burden of proving the existence of a valid contract of insurance was on the defendants in the declaratory action, the named insured, Charles Quinn, Raymond Quinn, the driver of the motor vehicle described in the policy, and the driver and three passengers of the other automobile involved in the collision. On the other hand, where the insurer attempts to avoid coverage by reason of an exclusion contained in the policy, the burden of proof has been held to be on the insurer. Michigan Mutual Liability Co. v. Stallings, 523 S.W.2d 539, 545[5] (Mo.App.1975); Mission Insurance Company v. Ward et al., 487 S.W.2d 449, 451[3] (Mo. banc, 1972); See Borchard, Declaratory Judgments (2d Ed.) pp. 405-409; Annot., 23 A.L.R.2d 1243, 1258 (1952).

The parties do not contest the existence of the policy of insurance nor that it was in force and effect on the date of the collision. It is uncontradicted that the automobile described in the contract was not the one being driven by Mrs. Johnson at the time of the collision. Appellant does not attempt to avoid its obligations under the contract by reason of any exclusion; rather, the issues are whether the insurer is required to afford coverage to an automobile not described in the contract by reason of the additional coverage afforded to a second automobile under extended coverage provisions of the policy without the assessment of an additional premium. In these circumstances we conclude that the respondents had the burden of establishing that the Oldsmobile operated by Mrs. Johnson at the time of the collision came within the umbrella of the insurance contract. M.F.A. Mut. Ins. Co. v. Quinn, supra. Hartford Accident and Indemnity Co. v. Shaw, 273 F.2d 133, 137[4] (8th Cir. 1959).

Having established upon whom the burden of proof rests, we may then proceed to ascertain whether a submissible case was made by viewing the evidence in a light most favorable to the defendants, giving them the benefit of any and all reasonable inferences to be drawn from evidence not in conflict with their theory of the case, and we must disregard plaintiff’s evidence unless it aids defendants’. Kaelin v. Nuelle, 537 S.W.2d 226, 232[6] (Mo.App.1976).

Appellant introduced evidence initially, calling Roberta L. Johnson to the stand as an adverse witness. The balance of appellant’s evidence consisted of answers to interrogatories directed to the Johnsons, the deposition of Woodrow Wilson (the owner of the Oldsmobile), the deposition of Arthur Johnson (father of Johnny Johnson and Woodrow Johnson, and Mrs. Johnson’s father-in-law); the testimony of Roberta Johnson and Johnny Johnson from a prior trial of this same case; a prior statement of Johnny Johnson of December 18, 1973; portions of a transcript of a tape-recorded statement of a telephone conversation of Johnny Johnson with an agent of the appellant concerning the Oldsmobile; and those portions of the insurance policy relevant to the issues.

Respondents’ evidence consisted of the testimony of Johnny M. Johnson and Richard Erwin, Mrs. Johnson’s son.

According to the evidence, in September, 1973, Arthur Johnson lived in Downing, Missouri. He was an elderly man, in poor health. He did not own a car; however, he could drive a car and had a driver’s license. Sometime in September, 1973, he went to visit his son, Art Johnson, in Summit, Illinois, and a second son, Woodrow, joined them there. Woodrow brought with him a 1966 Oldsmobile which he had no need for, and loaned it to his father for his father’s use; he knew that his brother, Johnny, and his sister-in-law, Roberta, had several trucks and automobiles of their own. For this reason Woodrow did not expect Johnny and Roberta would use the Oldsmobile frequently or regularly. Woodrow had only one set of keys to the Oldsmobile and these he gave to his father in Summit, Illinois. Woodrow never had any objections to his family using anything he had and he had no objection to other members of the family using the Oldsmobile if necessary, but they were not to use it so much that they would start “peeling the tires off of it.” According to Woodrow the car was primarily for his father’s use, but Johnny and Roberta could also use it when their vehicles were broken down, or in need of repair, or in case of an emergency.

Arthur and Art towed the Oldsmobile to Downing and it was parked about twenty feet from Arthur’s trailer and between sixty to ninety feet from the home of Johnny and Roberta. It was not parked with the cars and trucks owned by Johnny and Roberta. Arthur’s trailer was situated on the same lot as Johnny’s and Roberta’s house. Johnny and Roberta owned this lot.

Between the time the Oldsmobile arrived in Downing and December 7, 1976, Roberta never used the car for her own purposes; it was used by Arthur except on a few occasions when Roberta drove Arthur to a doctor in Kirksville. Arthur retained control of the only set of keys to the Oldsmobile although he admitted that on one occasion he might have left the keys in the Oldsmobile. Arthur bought gas for the Oldsmobile and Johnny had put a little gas in the car, but very little, because it was seldom used.

According to Roberta she understood that she was to use the Oldsmobile only in an emergency or to take her father-in-law to the doctor, or if it were “needed.”

According to Johnny, there were some restrictions on his use of the Oldsmobile; he was not to use it except when needed.

Roberta used her Pontiac to take Arthur to a doctor, and it was only when her Pontiac was unavailable or broken down that she used the Oldsmobile for that purpose.

Richard Erwin, Roberta’s son, worked for his step-father, Johnny, in the garbage collection business during the early morning hours as a garbage truck driver. He was also employed by McGraw-Edison in Kirks-ville, Missouri, between 5:00 p. m. and midnight. He and his wife, Sheri Lyn Erwin, resided in Lancaster, Missouri, in December, 1973.

On December 7, 1973, Richard’s automobile was inoperable because its transmission was not working. He hitch-hiked from his home in Lancaster to his mother’s home in Downing and borrowed the 1966 Pontiac described in the contract of insurance issued by the appellant to Johnny and Roberta Johnson. He had difficulty getting the Pontiac started, but finally did and drove to Lancaster, arriving there at about 9:00 a. m. He picked up his wife at her place of employment and while en route to his home the Pontiac stopped. He raised the hood and discovered that the battery cable leading to the starter was broken into two parts near the starter. While Richard was so engaged Johnny came by in a garbage truck, stopped and helped Richard try to start the Pontiac. They were unsuccessful. Richard thereupon purchased a cable replacement end and, after the car had been towed to his home by á friend, installed the cable replacement during the afternoon. When he again attempted to start the Pontiac it would not start. At about 4:00 p. m. the same afternoon Richard again tried to start the Pontiac but it would not start. Inasmuch as he was due at work in Kirks-ville at about 5:00 p. m. he left his home for work in another automobile.

Richard returned to his home in Lancaster at about 12:30 or 1:00 o’clock the morning of December 8,1973. At approximately 2:30 the same morning a friend came to his home and told him that his wife had been injured in an auto accident. He attempted to start the Pontiac to go to the hospital where his wife had been taken, but the Pontiac flooded, so the friend who had advised him of his wife’s predicament drove him to the hospital.

Late on the evening of December 7,1973, at about 11:00 p. m., Roberta and Johnny left their home en route to Lancaster to pick up the Pontiac and return it to Downing so she could use it to go shopping. At that time Roberta believed the Pontiac was operable and could be driven back to Downing although earlier in the day Richard had told her the Pontiac had broken down; she believed he had fixed it so she could drive it home. Because the Pontiac was in Lancaster, Roberta drove Woodrow’s Oldsmobile. Johnny rode along as a passenger. After leaving their home in Downing they proceeded to the D & L Bar where they ate some pizza and Roberta may have had “a half beer.” They remained in the pizza parlor until shortly after 1:00 a. m., December 8,1973, when they resumed their trip to Lancaster with Roberta driving the Oldsmobile. Shortly thereafter the Oldsmobile came into collision with another automobile being operated by David E. Beeler, occupied by Richard’s wife, Sheri Lyn and daughter, Ellen Marie, and James Owen. Mr. Owen died as a result of injuries sustained in the collision and the other occupants of the Beeler car also sustained injuries and property damages.

We conclude that the evidence established as a matter of law that the Oldsmobile being operated by Roberta Johnson on December 8, 1973, when it came into collision with the Beeler automobile was not a “temporary substitute automobile” as that term is used in the automobile policy issued the Johnsons by the appellant because the occasion for the use of the Oldsmobile did not arise out of the “breakdown, repair, servicing, loss or destruction” of the Pontiac. It is uncontradicted that the reason Mrs. Johnson was driving the Oldsmobile in lieu of the Pontiac was because she had permitted her son to borrow the Pontiac for his personal use. The breakdown of the Pontiac while in possession of her son was, at best, incidental. According to the unambiguous terms of the contract coverage is afforded a temporary substitute automobile only when said automobile is being driven as a substitute “for the described motor vehicle when withdrawn from normal use because of its breakdown, repair, servicing, loss, or destruction.” (emphasis added). State Farm Mut. Auto. Ins. Co. v. Western Cas. & Sur. Co., supra, 1. c. 423 (construing an identical provision).

The “Temporary Substitute Automobile” extended coverage does not, and is not meant to, apply to those cases when the insured uses a non-owned automobile out of preference or convenience in lieu of the automobile described in the contract of insurance; that coverage comes under the “drive other cars” clause, which we shall consider next.

We hold, therefore, that the trial court erred in submitting this issue to the jury.

With reference to whether the trial court erred in submitting the question whether the Oldsmobile was not afforded coverage under “Non-Owed Automobile” clause of the insurance contract because it was furnished or available for the regular use of the named insureds, his or her spouse, or any relative of either residing in the same household we reach a different conclusion.

The test to be applied where this question is in issue was announced in State Farm Mut. Auto. Ins. Co. v. Western Cas. & Sur. Co., supra, 1. c. 424, when the court held that each case should be decided on its own facts, and the court should take into consideration the type and length of use, the purpose for which the non-owned automobile was furnished, and any other pertinent facts, including a determination of whether the use and purpose was in harmony with or violative of the objective of the “non-owned automobile” clause.

We hold that under the evidence adduced there was a submissible case made on this question and the trial court did not err in submitting the issue to the jury.

While there were some inconsistencies in the evidence concerning the number of times the Oldsmobile was used by Mrs. Johnson or how frequently she used it, this was, at least, a question of fact for consideration by the jury under proper instructions.

The final issue, and one of first impression in this state, so far as we have been able to ascertain, is whether the trial court erred in failing to give a burden of proof instruction.

Respondents contend the Point has not been preserved for review because appellant did not comply with the requirement of Rule 84.04(c) that a party complaining about the giving, refusal or modification of an instruction must set out the instruction in full in the argument portion of the complaining party’s brief.

There is no question appellant did not set out the burden of proof instruction it contends the trial court failed to give.

In reply, however, appellant states that it did not intend, by this Point, to have this court rule on the basis of a refused instruction, but rather, on the failure of the trial court to obey its mandated duty to give the modified burden of proof instruction M.A.I. 3.01, appropriate to this case.

We conclude that under these circumstances this paragraph of the Rule is inapplicable to this Point because the instruction was not given, refused, nor modified, and therefore it is" unnecessary to set it out in the Point.

In chambers, after conclusion of the evidence, appellant’s counsel tendered a burden of proof instruction, M.A.I. 3.01, and it was denied. Counsel for appellant then withdrew his tendered burden of proof instruction, remarked that there had been a discussion as to who had the burden of proof and that he did not agree his client had the burden of proof. The trial court advised him that it was submitting a verdict form and that no burden of proof instruction would be submitted, but that the verdict form “encompasses a phrase which is drawn from the stock form of burden of proof.” Counsel then inquired if the trial court was submitting a verdict form “that’s one where they’re unable to form a belief.” The trial court then read what ultimately was submitted to the jury as “Verdict No. 3.” Counsel then said: “And since there is no burden of proof offered by any of the defendants here and since the Court is enumerating in its special verdict form what the burden is as to this and has announced he is giving that instruction A (M.A.I. 3.01) that has been enumerated burden of proof, (sic)”

Appellant, in its Motion for New Trial, paragraph 15, stated as grounds for a new trial:

“That the Court violated the MAI standards and did not submit the issue to the jury and did not place the affirmative on the defendants when the plaintiff only had to prove that the automobile being driven at the time of the mishap was not the identified automobile on the insurance policy and then require the burden to be on the defendants to prove that the non-owned automobile came within the insurance policy.”

In our opinion it is only by way of a very liberal interpretation of paragraph 15 of appellant’s motion for new trial that we can glean that the grounds for a new trial therein stated are directed at the failure of the trial court to submit M.A.I. 3.01, or a modified version thereof. However, respondent, aided no doubt by the pre-instruction conference, so understood it and we may assume that the trial court did also. For these reasons we do not hold that the Point raised on appeal is not the same grounds raised in appellant’s motion for new trial.

A declaratory judgment action brought under Ch. 527 and Rule 87.01 is a civil action as that term is used in Rule 42.01 because it involves private rights and duties, State v. Harold, 364 Mo. 1052, 271 S.W.2d 527[8] (1954); 1 C.J.S. Actions § 43, p. 1096; and therefore the conventional rules of civil practice and procedure apply in the absence of provisions to the contrary. Campbell v. Shell, 289 Ala. 115, 266 So.2d 272, 275[2] (1972); DeVore v. Mutual of Omaha Ins. Co., 32 Ohio App.2d 36, 288 N.E.2d 202, 203[1] (1972); Condenser Service & Engineering Co. v. American Mut. Liab. Ins. Co., 45 N.J.Super. 31, 131 A.2d 409, 410[1] (1957); Mackay v. Whitaker, 116 Cal.App.2d 504, 253 P.2d 1021, 1025[6] (1953).

Missouri has established no special rules of practice or procedure for declaratory judgment actions and therefore, unless the fact that the trial court submitted the fact issues to the jury by special verdict negates the mandate that the burden of proof instruction — M.A.I. 3.01 — be given in every case, we must hold that error was committed and ascertain whether appellant was prejudiced thereby. Arnel v. Roettgen, 530 S.W.2d 20, 23[7] (Mo.App.1975).

Respondent relies on Crollard v. Northern Life Insurance Company, 240 Mo.App. 355, 200 S.W.2d 375 (1947) for the proposition that “the rule in Missouri ... is that the instructions in a declaratory judgment action need only to submit the essential facts for the court’s later determination of the rights of the parties,” and concludes that this case will be the first one to decide what type of instruction is properly submitted to a jury under the Missouri Declaratory Judgment Act.

The court in Crollard concluded that a proceeding for a- declaratory judgment under our statutes is sui generis and is not of itself strictly either legal or equitable, although its historical affinity is equitable. 200 S.W.2d l. c. 382[8]. It also held that the verdict rendered by a jury on an issue of fact submitted pursuant to the authority of the statutory predecessors of § 527.090 and Rule 87.06 (§ 1134 RSMo. 1939 and 1943 Mo. Laws, Code for Civil Procedure, § 108, p. 386) was a special verdict because under the Declaratory Judgment Act the determination of the remaining issues, “namely the rights, status and other legal relationship of the parties under the determined facts is for the court.” 200 S.W.2d l. c. 383.

It is clear that the Crollard decision is not authority for the refusal of a trial court to give the burden of proof instruction mandated by M.A.I. 3.01. As a matter of fact the trial court in Crollard did instruct the jury that the burden was on the insurer to prove that the insured died under conditions which made his death a risk not assumed by the policy. The court also had submitted a verdict director instruction in the usual form for the plaintiff but limited the verdict forms to a finding on that issue in favor of the plaintiff or the defendant, leaving for later determination by the court alone the declaration of the rights of the plaintiff and the defendant under the terms of the insurance policy.

The fact issue for jury determination in Crollard was whether the insured was intoxicated at the time he sustained the injuries which caused his death. After the instructions had been approved by the court and were ready to be read to the jury, the defendant insurer orally requested the court to submit four specific questions of fact to the jury, but when it was ascertained that the requested questions had not been prepared for submission by counsel for the insurer, the court refused to submit the specific- questions requested. Appellant raised the refusal of the court to submit the specific questions so requested in its motion for new trial and in the appellate court. This action of the trial court was upheld because a jury determination of all of the issues of fact had been awarded the defendant under instructions of the court — including the burden of proof — which submitted all the essential facts necessary for the court’s later determination of the liability of the defendant under the policy, and for declaration of the rights of the plaintiff thereunder, the appellate court noting that interrogatories are not required under the Missouri Declaratory Judgment Act as they are by subsection (3) of the Federal Declaratory Judgment Act, Jud.Code, § 274d(3) 28 U.S.C.A. § 400(3) (current version at 28 U.S.C. § 2201 (1959).

There is no Missouri decision, of which we are aware, that has considered the question whether it is error to omit a burden of proof instruction where special verdict practice is followed.

The special verdict in Missouri is authorized by Rule 71.01 in any proceeding where there is no issue for the recovery of money only, or specific real or personal property. Rule 71.02. It has not been widely employed despite its availability in Missouri since at least 1849 when it was enacted as Mo.Laws 1849, p. 89, Art. XIV. However, use of the special verdict so authorized soon became so hedged about by restrictions and technicalities occasioned by interpreting it against a common law background that it became almost useless as a method of procedure.

We have found no Missouri decision stating the purpose of the special verdict under Rule 71.01. According to the Supreme Court of Minnesota its purpose under a Rule similar to the Federal Rule of Civil Procedure 49(a) is to enable the jury, free from bias, prejudice and sympathy, to make findings of fact without regard to the effect of their findings on the ultimate outcome of the case. Johnson v. O’Brien, 258 Minn. 502, 105 N.W.2d 244, 248[3, 4] (1960).

According to one federal jurist who has had considerable experience with special verdict practice under F.R.C.P. 49(a) this purpose of the special verdict relieves the trial court issuing the special verdict from any requirement that it instruct the jury as to which party has the burden of proof. He says that the jury, in such cases, “is simply asked to determine whether, by the greater weight of the evidence, it appears that certain facts are true” because it is the better practice to point out where the burden lies, not upon whom. Nordbye, Use of Special Verdicts under Rules of Civil Procedure, 2 F.R.D. 138, 139 (1941).

However, Professor Charles Alan Wright, the author of the Wright edition of Barron & Holtzoff, Federal Practice and Procedure, (1958 — 1961) recognized that the form of the court’s instructions and the details of the procedure where special verdicts are employed, as well as the function of the special verdict, depends upon how one views the role of the jury. He points out that where there is a mixed question of law and fact involved, the trial court must instruct the jury as to the law; that there is also authority that in any case the judge may deliver a general charge and then call for special verdicts; and that there is also authority that it was not error for the trial court to refuse instructions which would have let the jury know the effect of its answers to the special verdicts, together with a considered dictum that it would be error if the trial judge gave the information. Wright, The Use of Special Verdicts in Federal Court, 38 F.R.D. 199, 204 (1966).

However, we seriously question the applicability of cases and legal principles announced by courts with respect to what instructions they may or may not give in cases where special verdicts are authorized by F.R.C.P. 49(a) or other state statutes or rules similar thereto, because our Rule is dissimilar.

While F.R.C.P. 49(a) directs that “the Court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue” a dichotomy has developed around instructions given and refused which we would do well to avoid.

As Professor Wright pointed out, 38 F.R.D., 1. c. 205: “The courts which have held or said that the jury must be blindfolded as to the effect of its answer have relied heavily on precedents from Texas and Wisconsin, two states in which special verdict practice is very highly developed and where this rule as to instructions is clearly established.” However, he further points out that the precedential value of eases from the courts of these two states is lessened because under their special verdict practice special verdicts are mandatory at the request of either party.

Missouri has not adopted F.R.C.P. 49(a). In 1942, however, when there was a proposed General Code of Civil Procedure for the state under study the Supreme Court proposed it as one of two alternatives. The other alternative was that provided by §§ 1120 and 1121 RSMo. 1939 (the same as the present Rule 71.01). Missouri refused to adopt the Federal Special Verdict Rule at that time and has not seen fit to do so in the interim.

Our Rule 71.01 is very simple, merely providing that the verdict of a jury is either general or special and defining each. Unlike F.R.C.P. 49(a) no reference is made to the giving of instructions in case either verdict is employed. A general verdict only must be used whenever the issue is for the recovery of money only, or specific real or personal property, Rule 71.02; but in all other cases the court, at any time during the progress of the cause, may direct an issue or issues to be made for the determination of any fact in controversy when it is of the opinion that the determination of the fact should be made by a jury verdict. Rule 71.03. The court alone may direct the issues to be submitted. Rule 71.04.

In the absence of any reference to instructions in our special verdict Rule we return then to Rule 70.01 and the mandate the Supreme Court enunciated in the Notes on Use to M.A.I. 3.01.

We hold that the trial court erred in failing to comply with the mandate to submit to the jury M.A.I. 3.01 and that we cannot find that said error was non-prejudicial, particularly where, as here, the burden of proof on the issue whether the non-owned Oldsmobile was furnished or available for the frequent or regular use of Roberta Johnson was on the defendants.

Judgment of the trial court, is reversed and the cause remanded for further proceedings in accordance with this opinion.

WEIER, C. J., and GUNN, P. J., concur.

APPENDIX

I.

THERE WAS NO ISSUE OF FACT FOR THE JURY. THE COURT ERRED IN SUBMITTING THE CAUSE AND FURTHER IN PERMITTING THE JURY TO DECIDE LAW.

IV.

THE ISSUE OF “SUBSTITUTE” CAR HAD BEEN FINALLY DETERMINED AND THE COURT ERRED IN RELITI-GATING THAT ISSUE.

VI.

THE COURT COMMITTED CUMULATIVE TRIAL ERRORS AND THUS DENIED PLAINTIFF A FAIR TRIAL.

      . All statutory references are to RSMo. 1969 unless otherwise indicated; all references to Rules of the Supreme Court of Missouri are to the Rules in effect at the time of trial, i. e. May 2, 1977.

      . Appellant’s Points Relied On we decline to review are set out in an appendix following this opinion.

      . See discussion of this question in Borchard, Declaratory Judgments (2d ed.) pp. 404-409; Annot., 23 A.L.R.2d 1243 (1952).

      . This prior trial of August 23, 1976, culminated in a mistrial when the jury was unable to reach a verdict.

      . This tape was made with the knowledge and consent of Mr. Johnson.

      . We have not considered whether by proceeding first with its evidence appellant thereby assumed the burden of proof, because to do so would have taken us beyond the framework of the legal propositions constructed by the parties to this appeal. Cf.: New York Life Insurance Co. v. Stoner, 109 F.2d 874, 876[1] (8th Cir. 1940) (Because plaintiff in this declaratory judgment action assumed the burden of proof it was estopped to deny that it was not required to assume that burden); Liberty Mutual Insurance Co. v. Sweeney, 216 F.2d 209, 211[4, 5] (3rd Cir. 1954); and Pacific Portland Cement Co. v. Food Machinery & Chemical Corp., 178 F.2d 541, 547[9, 10] (9th Cir. 1950).

      . State Farm Mutual Auto. Ins. Co. v. O’Brien, 14 Cal.3d 96, 120 Cal.Rptr. 692, 534 P.2d 388 (banc 1975); Transit Casualty Company v. Gif-fin, 41 Cal.App.3d 489, 116 Cal.Rptr. 110 (1974).

      . The burden of proof instruction tendered, refused, and then withdrawn, MAI 3.01, placed the burden on the plaintiff “to cause you to believe the propositions necessary to support its claim against defendant.”

      . Stinson, Special Verdicts and Mo.L.Rev. 142, 146 (1942). Interrogatories, 7


author: SATZ, Judge.

text:
    Melvyn CURDT and Norma Curdt, His Wife, Appellants, v. MISSOURI CLEAN WATER COMMISSION and Terre Du Lac Utilities, Inc., Respondents.
    No. 40263.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 14, 1979.

      Dennis E. McIntosh, Medley, Alexander & McIntosh, Farmington, for appellants.
    Jerry B. Schnapp, Schnapp, Graham & Reid, Fredericktown, for Terre Du Lac Utilities, Inc.
    Frank J. Murphy, Asst. Atty. Gen., John D. Ashcroft, Atty. Gen., Jefferson, for Missouri Clean Water Commission.
   SATZ, Judge.

This cause was tried before the trial court without a jury. There is no dispute as to the facts.

Pursuant to the Missouri Clean Water Law, Ch. 204, RSMo (1973), respondent, Terre Du Lac Utilities, Inc., (Terre Du Lac), applied to co-respondent, Missouri Clean Water Commission (Commission), for a permit to operate a water purification lagoon. As an interested party, appellants, Melvyn Curdt and Norma Curdt (Curdts), were permitted to appear at the hearing before the Commission, and, over the Curdts’ objections, the Commission granted Terre Du Lac its permit.

The Curdts duly filed a Petition for Review of the Commission’s Order, and all parties stipulated to the record which would be before the trial court for its review. The pertinent facts are that the “waste-water” being discharged from Terre Du Lac’s lagoon is clean and not polluted. The water is discharged into a surface watercourse on real estate belonging to Terre Du Lac, continues across that property into a surface watercourse on real estate belonging to the Curdts and then flows into a pond on the Curdts’ property. The water discharged from the lagoon into the watercourses does not exceed the natural capacity and stays within the confines of the watercourses. Terre Du Lac does not have a written easement across the Curdts’ real estate.

The Curdts contend the Commission acted arbitrarily by refusing to consider whether their riparian rights were violated by the flow of the discharged water onto their property. We do not agree.

The primary purpose of the Missouri Clean Water Law is to insure high water quality and a minimum degradation of the waters of this state, § 204.011 RSMo (1973). The Missouri Clean Water Commission is the administrative agency charged with administering, enforcing and promoting the goals of this Law, § 204.021 and § 204.026, RSMo (1973). Like other administrative agencies, the Commission has only those powers which the legislature has expressly or impliedly conferred. Soars v. Soars-Lovelace, Inc., 346 Mo. 710, 142 S.W.2d 866, 871 (1940); Wright v. Board of Education, 295 Mo. 466, 246 S.W. 43, 45 (1922); State Board of Reg. for Healing Arts v. Masters, 512 S.W.2d 150, 161 (Mo.App.1974).

The statutory provisions of the Missouri Clean Water Law do not explicitly grant the Commission the power to determine riparian rights. Moreover, these provisions do not impliedly grant this power. For example, a clarification of the respective rights and duties of a lagoon owner and an adjacent property owner would not affect, and, thus could not facilitate the Commission’s required determination of whether the discharged water meets the statutorily defined effluent limitations and water quality standards. Furthermore, determination of the riparian rights of individual landowners would not reveal what impact the discharge would have on water quality and, thus, could not serve to insure minimum water quality degradation in this state.

The Curdts, however, find implied authority for the Commission to determine private riparian rights in § 204.026 RSMo (1973), which provides that:

“The commission shall:
14. Require proper maintenance and operation of treatment facilities and sewer systems and proper disposal of residual waste from all such facilities and systems;”

The Curdts interpret “proper” as requiring the Commission to determine not only whether Terre Du Lac “properly” complied with the statutorily defined clean water standards but as also requiring the Commission to determine whether Terre Du Lac “properly” complied with the riparian rights of the Curdts, because, the Curdts argue, failure to impose the latter requirement on the Commission would, in effect, allow condemnation of the Curdts’ property under the color of a clean water permit.

The Curdts misconceive the legal effect of the clean water permit. This permit merely reflects full compliance with the clean water law standards imposed by the Missouri Clean Water Law, § 204.051.3 RSMo (1973). It does not follow that the owner of the permit is thereby exempted from complying with all other decisional and statutory law, ordinances, codes, regulations and the like. To the contrary, specific recognition that the Curdts’ existing rights are not abridged by the issuance of a permit is found in § 204.131, RSMo (1973), which provides:

“Nothing in sections 204.006 to 204.141 alters or abridges any right of action now or hereafter existing in law or equity civil or criminal, nor is any provision of sections 204.006 to 204.141 construed as prohibiting any person, as a riparian owner or otherwise, from exercising his rights to suppress nuisances.”

Thus, if Terre Du Lac is indeed violating the Curdts’ alleged riparian rights, then, Terre Du Lac is not absolved from liability by its clean water permit.

The Curdts’ relief, if any, is in the courts, and the Commission had no authority and properly refused to consider this private dispute raised by the Curdts, a third party to the permit proceedings. See State v. Waddill, 318 S.W.2d 281, 287 (Mo.1958) and State v. Welsch, 124 S.W.2d 636, 639-641 (Mo.App.1939); cf. State v. Eckhardt, 322 S.W.2d 903, 908-910 (Mo.1959).

The Curdts also contend that the discharge of Terre Du Lac’s effluent onto their property is a tort, and, citing State v. Longfellow, 169 Mo. 109, 69 S.W. 374 (1902), the Curdts argue that the Commission cannot permit Terre Du Lac to commit an unlawful act. In the Longfellow case a utility applied for a permit to construct a building and the face of the application disclosed the obvious fact that the building would partially lie on public land. In refusing to issue a mandamus to compel the issuance of the building permit, the Supreme Court stated: L.C. 69 S.W. 379

“The fact that relator asks a permit to erect a private building partly upon the public domain is, in itself, enough to require public officers to refuse the permit, and the courts will not compel any public officer to grant any one a permit to do an unlawful act.”

The facts of the Longfellow case distinguish it from the instant case. From that case as reported, it is not clear that the utility fully complied with the code the commissioner was authorized to enforce. Moreover, even if the utility had fulfilled the technical requirements of that code, we have held, in a fact situation similar to the instant case, that the distinctive facts of Longfellow place it in a unique and different class, because the utility in Longfellow proposed to commit an act that was clearly unlawful. State v. Welsch, supra, at 640. Comparable to Welsch and differing from Longfellow, Terre Du Lac’s application, in the instant case, is not on its face unlawful but, rather, viewed from the Curdts’ perspective, the application would involve complex questions concerning alleged riparian rights and duties of adjacent landowners. Furthermore, in order for the Curdts to make Longfellow relevant here, they must interpret Longfellow as standing for the principle that an administrative agency is required to consider and determine the propriety of matters outside the scope of its statutory authority. If Longfellow were to stand for that peculiar principle, then, we would question its validity.

After the Commission satisfied itself that Terre Du Lac had complied with all provisions of the Missouri Clean Water Law, the Commission properly issued Terre Du Lac its operating permit. Therefore, the judgment of the Circuit Court is affirmed.

DOWD, P. J. and SMITH, J., concur.

      . There is no question that the parties stipulated to the record before the trial court, apparently, pursuant to § 536.130.1(1) RSMo, “Administrative Procedure and Review”. These stipulated facts are sufficient to define the relevant issues now before this Court. However, in their briefs, the parties refer to additional facts which are not within their stipulation. Since these latter facts neither change nor affect the resolution of the issues, we consider only the stipulated facts.


author: FLANIGAN, Chief Judge. MAUS, Judge,

text:
    STATE ex rel. CRAWFORD COUNTY R-II SCHOOL DISTRICT et al., Appellants, v. William H. BOUSE, Respondent-Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY CO. et al., Respondents.
    Nos. 10707, 10733.
    Missouri Court of Appeals, Southern District, En Banc.
    Aug. 20, 1979.

      Walter D. McQuie, Jr., McQuie & Deiter, Montgomery City, for appellants.
    Morton K. Lange, Lange & Lange, Cuba, for respondent-appellant.
    J. Kent Howald, Steelville, David Donnelly, Lebanon, for respondents.
   FLANIGAN, Chief Judge.

On May 19, 1976, plaintiff Crawford County R — II School District brought this action against defendant William Bouse, the Crawford County collector, challenging the legality of a tax refund made by defendant to third-party defendant, The St. Louis-San Francisco Railway Company (Frisco). The sureties on the collector’s bond were named as additional defendants and another school district intervened as a co-plaintiff.

The gist of the petition was: On December 30, 1975, Frisco paid taxes to the collector in the amount of $4,106.70; the payment was made under protest in the manner prescribed by § 139.031, par. 1; Frisco failed to commence an action in the circuit court to recover the protested payment within the 90-day period prescribed by § 139.031, par. 2; it was the duty of the collector, in light of Frisco’s non-commencement of the action, to pay the $4,106.70, which the collector previously impounded, to the county treasurer for disbursement to the taxing units, including plaintiff, entitled thereto, and the collector had not performed that duty.

The collector filed a third party petition against Frisco seeking indemnity for any sum for which he might be held liable to the plaintiff.

The gist of the third party petition was: The protest made by Frisco was in proper form and was based upon Frisco’s claim that the school districts of Crawford County, including plaintiff and intervenor, had failed to comply with § 137.073 which requires taxing authorities to reduce their rates of levy when the assessed valuation of real or personal property within the county increases by 10 percent or more over the prior year’s valuation; there had been such an increase in the assessed valuation in Crawford County; on March 22, 1976, (within the 90-day period prescribed by § 139.031) Frisco commenced an action against the collector by filing a petition in the circuit court of Crawford County seeking recovery of the amount protested; after the petition was filed, but on the same day, the collector, under the authority of an order of the county court of Crawford County, refunded the protested amount to Frisco; in making the refund the collector acted in good faith and on the belief that Frisco was entitled to the refund and that he was legally authorized to make it; thereafter, again on the same day, Frisco “withdrew its petition theretofore filed in the circuit court.”

Prior to the disposition of several motions and prior to the filing of responsive pleadings, the collector filed a motion for summary judgment. The motion, which was supported by affidavits and depositions, made no reference to the third party petition to which Frisco had directed an un-ruled motion to dismiss. Frisco argued in favor of the collector’s motion for summary judgment. The trial court sustained the motion and entered judgment in favor of the collector and against the plaintiff and intervenor. The trial court also ruled that the respective liabilities of the sureties and Frisco were “purely derivative” and depended upon the collector’s liability to the school district and, the latter liability being non-existent, the sureties and Frisco were discharged. The school districts, plaintiff and intervenor, appeal.

The collector’s motion for summary judgment stated simply that it was based “on the ground that from the pleadings, the deposition and affidavits attached hereto, and the court file, it is apparent that there is no genuine issue as to any material fact, and that defendant is entitled to a judgment in his favor as a matter of law.” The trial court, in its judgment sustaining the motion, did not specify the ground upon which it based its ruling.

The joint brief of the school districts, as appellants here, advances the principal argument that the judgment of the trial court was based upon an implied finding that Frisco commenced an action to recover the taxes protested within the 90-day period prescribed by § 139.031. This finding, the school districts argue, has no factual support in the record.

The respective briefs of the other parties take the position that Frisco did commence an action within the statutory period and, at least tacitly, agree with the school districts that the trial court based its ruling on that implied finding. Examination of the documents and briefs presented to the trial court in support of the motion and in opposition to it leads this court to the conclusion that the trial court did base its ruling on the implied finding which the school districts here attack.

For reasons to be stated this court holds that the trial court erred in entering summary judgment in favor of the defendant. This court also determines that the instant record is insufficient to authorize it to rule on the correctness of the trial court’s implied finding.

Section 139.031, cited in the petition, is a “revenue law,” John Calvin Manor, Inc. v. Aylward, 517 S.W.2d 59, 60 (Mo.1974). Section 137.073, cited in the third party petition, is also a “revenue law.” Missouri Pacific Railroad Co. v. Kuehle, 482 S.W.2d 505, 506 (Mo.1972). If this appeal involved “the construction” of either statute this court would have no jurisdiction. See Mo. Const., Art. Y, § 3; Regal-Tinneys Grove, Etc. v. Fields, 552 S.W.2d 719, 720[1] (Mo. banc 1977).

The test for determining whether a case is one “involving the] construction of revenue laws of this state” is set forth in the landmark case of State v. Adkins, 221 Mo. 112, 117, 119 S.W. 1091, 1093[1] (1909) and is quoted below.

Our supreme court has described § 139.-031 as “clear and unambiguous on its face.” Xerox Corp. v. Travers, 529 S.W.2d 418, 422 (Mo. banc 1975). “Where the meaning of a statute is clear there is no occasion for its construction and the courts will apply it as written.” Foremost Dairies, Inc. v. Thomason, 384 S.W.2d 651, 659[4] (Mo. banc 1964).

The principal argument advanced by the school districts on this appeal seems to be “merely one relating to the general practice in circuit courts,” Adkins, 119 S.W. at 1093, and “with some doubt and hesitation,” Adkins at 1093, this court concludes that it has jurisdiction. See State v. Holland, 186 Mo. 222, 85 S.W. 356 (1905); see also Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, 897 (Mo. banc 1978).

On March 22, 1976, William J. Graham, a land and tax agent for Frisco, went to the office of the circuit clerk of Crawford County for the purpose of filing a petition to recover the protested taxes. Graham handed the original petition and the service copy (one of two copies he had with him) to deputy clerk Perrigue and told her he wanted to file the case.

According to Mrs. Perrigue, “I accepted the petition, stamped it filed, and assigned it number C-16-76, which I wrote in the petition in ink. I then entered the style of the case in the civil fee book on page 632 right after case number C-15-76 on page 631. At the time Graham handed me the petition he did not say anything to me about holding it in abeyance or about not actually filing it. He did not pay the filing fee at the time he handed me the petition but I assumed he would pay it before he left so I proceeded to stamp it filed, gave it a number, and entered it in the fee book. In the meantime Mr. Hardesty returned and I returned to my desk.”

Although Graham had with him a check “made out to the circuit clerk” which was to be used to pay “the filing fee” of $50, he did not pay the fee at the time nor was he asked to do so.

Circuit clerk Hardesty, who had been away from the office for a few minutes, returned to the office while Graham was still there. Hardesty had a conversation with Graham in which Hardesty told Graham that he thought the county court was in session, the prosecutor was upstairs, the collector was there, and “maybe we could do something now.”

Leaving the suit papers in the clerk’s office, Graham went to the office of the collector. The collector testified that Graham “told me he had filed a suit in the circuit clerk’s office to recover the taxes Frisco had paid under protest.” The collector also testified that Graham “showed me a copy of the petition and showed me the figures upon which the protest was based, and the amount that Frisco had been overtaxed by the various school districts. After checking his figures I concluded that they were correct, and concluded that based on previous experience with similar cases, that it was useless to go to the trouble and expense of defending it.”

The collector, Graham, and possibly the county prosecutor, conferred with the county court which was in session that afternoon. The county court issued an order that “the taxes in the amount of $4,106.70 paid under protest by [Frisco] be refunded to [Frisco].” The collector later made the refund.

With a copy of the order of the county court in his possession, Graham returned to the office of the circuit clerk. Graham’s testimony was, “The petition was lying by my briefcase and I just picked them up, put them in it and left. I presume I picked up the original and both copies. I had not left them lying there. The deputy clerk had them in her hand but when I came back they were lying there by my briefcase. . I picked up whatever was lying there and put it in my briefcase. I never counted them.” Graham, who is not an attorney, further testified that he intended to file the case and had not received any instructions to dismiss it.

Circuit clerk Hardesty testified that he did not make “a docket sheet or put it in the court’s docket book.” No summons was issued. Thereafter another lawsuit was filed and it was given the number previously assigned to the Frisco petition.

On August 9, 1976, an attorney for Frisco sent the original petition back to the clerk. On August 18, 1976, the attorney sent the clerk the $50 filing fee. The circuit clerk testified that on August 9, “I started in where I had left off. I scratched out the case I had filed in place of the Frisco case and gave [the Frisco case] the original number and issued a summons to the collector. I issued the summons on August 9 because I felt sure Frisco would pay the fee.”

Rule 53.01, as amended in 1972, reads: “A civil action is commenced by filing a petition with the court.”

It is the contention of the school districts that Frisco did not commence the action on March 22, 1976, for the reason that the petition was not “filed with the court” within the meaning of Rule 53.01.

Whether or not the happenings of March 22,1976, amounted to “filing a petition with the court,” the collector acted without lawful authority in making the refund.

Under the second paragraph of § 139.031, “If any taxpayer so protesting his taxes shall fail to commence an action in the circuit court for the recovery of the taxes protested within the time herein prescribed, such protest shall become null and void and of no effect, and the collector shall then disburse to the proper official the taxes impounded . . . ”

Under the third paragraph of § 139.031, dealing with the situation where a taxpayer has commenced a timely action in the circuit court for the recovery of the taxes protested, “[t]rial of the action in the circuit court shall be in the manner prescribed for nonjury civil proceedings, and, after determination of the issues, the court shall make such orders as may be just and equitable to refund to the taxpayer all or any part of the taxes paid under protest or to authorize the collector to release and disburse all or any part of the impounded taxes . . . ” As stated in Xerox Corp. v. Travers, supra, 529 S.W.2d at 422, “The collector should not disburse the impounded funds until all proceedings in the circuit court of the county in which he maintains his office are finalized.” (Emphasis added.)

If Frisco commenced an action, an order of the circuit court “finalizing” the proceedings was a condition precedent to the disbursement of the impounded funds. If Frisco failed to commence an action, the disbursement should have been made to the county treasurer. Under either hypothesis, the refund was unauthorized.

Authority exists to the effect that the collector’s unauthorized refund to Frisco of the protested amount constituted a breach of the condition of his bond, 84 C.J.S. Taxation § 678, p. 1355. The instant judgment must be reversed and the cause remanded. The collector appealed from the portion of the judgment of the trial court which found against the collector and in favor of Frisco on the third party petition. That portion of the judgment is also reversed.

This court is aware of the fact that upon remand a live issue will be whether or not the events of March 22, 1976, constituted the commencement of a civil action by Frisco. The briefs of the parties have focused on that issue. Although authority exists to the effect that it is proper for this court “to notice certain contentions which will necessarily be involved on another trial,” Babcock v. Rieger, 332 Mo. 528, 543, 58 S.W.2d 722, 729[6] (Mo. banc 1933), examination of the affidavits and the depositions which were before the trial court when it made its ruling shows that certain facts, material to the resolution of that issue, are in dispute. Indeed that is another reason why the trial court was in error in sustaining defendant’s motion for summary judgment.

The testimony of Graham was to the general effect that he handed the suit papers to the deputy clerk and gave her unconditional instructions to file the action. The testimony of the deputy clerk tended to support that testimony. It is a clear inference from their testimony that those instructions were not withdrawn. On the other hand, the deposition of circuit clerk Hardesty, which was not totally consistent with his own affidavit, attributed to Graham a certain statement made during the course of their initial conversation in the clerk’s office. The statement was: “Maybe we can get this thing settled — let’s hold up a few minutes to see whether we really want to file it — or leave this — put this case on the docket.”

In view of the conflicts in the testimony, this court refrains from expressing an opinion with regard to the correctness of the trial court’s implied finding.

The judgment is reversed and the cause remanded.

HOGAN, TITUS and GREENE, JJ., concur.

BILLINGS, J., concurs in result only.

MAUS, J., concurs in result only (separate opinion filed).

MAUS, Judge,

concurring in result.

I concur in result. However, the majority opinion after hypothesizing that the Frisco action was or was not filed states: “[ujnder either hypothesis, the refund was unauthorized”. § 139.031(4) RSMo, V.A. M.S. provides in part: “All the county collectors . . ., shall, upon written application of a taxpayer, refund any real or tangible personal property tax mistakenly or erroneously paid in whole or in part to the collector.” (Emphasis ours) The section further provides that such application shall be made within one year after payment and that the county court shall make available funds for the purpose of making such refunds.

The Attorney General, Opinion No. 97, February 10, 1970, has given his opinion that this sub-section has no application to the refund of taxes paid as the result of an allegedly excessive levy. This opinion indicates the sub-section is applicable to errors or mistakes such as double payment of the same tax. Without attempting to decide the scope of the sub-section and merely for the purpose of illustrating the point involved, a similar section dealing with refunds should be noted. § 136.035 RSMo, V.A.M.S. in part provides that the director of revenue “shall refund any overpayment or erroneous payment of any tax . . (Emphasis ours) The section provides a two-year limitation upon the filing of claims. The Supreme Court in holding claims for refunds barred by the limitation has at least implied that the section is applicable to the director’s refund of allegedly invalid registration fees intentionally paid. Ellsworth Freight Lines v. Mo. Hwy. Recip., 568 S.W.2d 521 (Mo. banc 1978); State ex rel. Brady Motor., Inc. v. State Tax Com’n., 517 S.W.2d 133 (Mo.1974).

Whether or not a collector is by § 139.-031(4) authorized to refund allegedly invalid taxes intentionally paid does involve a construction of the revenue laws. State v. Adkins, 221 Mo. 112, 119 S.W. 1091 (1909). The opinion of this court should not be interpreted as construing the scope of § 139.031(4). That construction must be made by the Supreme Court. Regal-Tinneys Grove, etc. v. Fields, 552 S.W.2d 719 (Mo. banc 1977); John Calvin Manor, Inc. v. Aylward, 517 S.W.2d 59 (Mo.1974).

      . Unless otherwise indicated all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.

      . Rule 74.04(b) permits a defendant to file a motion for summary judgment “at any time.”

      . “From a review of the cases we conclude (1) that, when our jurisdiction is put upon the ground that the construction of the revenue laws of the state is involved, the law up for construction must be a state law as contra-distinguished from the provisions of a special city charter; (2) that it makes no difference where the law is to be found, whether under the title of ‘revenue’ or any other title, so long as it relates to the subject-matter of revenue; (3) that the revenue must be directly and primarily concerned, not merely indirectly or as an incident; (4) that the term ‘revenue law’ covers and includes laws relating to the disbursement of the revenue and its preservation, as well as provisions relating to the assessment, levy, and collection of it; and, (5) finally, that where the question in the case is merely one relating to the general practice in circuit courts or before justices of the peace, although the case may pertain to the collection of taxes, yet that the revenue laws are not involved in a constitutional sense.” State v. Adkins, 221 Mo. 112, 118-119, 119 S.W. 1091, 1093[2] (1909).

      . It is the clear trend of modem authority that the payment of a filing fee is not a jurisdictional requisite to the efficacy of a filing. See Parissi v. Telechron, Inc., 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955); Bolduc v. United States, 189 F.Supp. 640 (D.C.1960); Thomas v. City of Gainesville, 220 So.2d 644 (Fla.App.1969); Avco Financial Services v. Caldwell, 219 Kan. 59, 547 P.2d 756 (1976); and Wrenn v. American Cast Iron Pipe Co., 575 F.2d 544 (5th Cir. 1978).
      “Since payment of the docket fee affects only the clerk of the district court, and an adverse party is not affected by the time of the payment of the docket fee, it should not be regarded as jurisdictional.” Avco, supra, 547 P.2d at 760.
      “As to the requirement that a party offering an instrument for filing perform some required condition precedent, as tendering fees, and that such condition may be waived by the officer, see State v. Pieski, 248 Mo. 715, 719, 154 S.W. 747, 748.” Ferguson v. Long, 341 Mo. 182, 107 S.W.2d 7, 10 (1937).

      . Although outside the instant record, in Continental Tel. Co. v. Bouse, 580 S.W.2d 759 (Mo.App.1979), a proceeding to which instant plaintiff was a party, it was said: “In view of the increase in assessed valuation in Crawford County in 1975, § 137.073 was ‘triggered’ with respect to all nine school districts. Each of them was under a duty to comply with the statute and to do so in the manner spelled out in [Mo. Pac. R. Co. v. Jones, 544 S.W.2d 541 (Mo.1976)].” The record there showed that the statute did not receive compliance.

      . Although Frisco did not file an answer to the third party petition, its brief in this court states: “$4,106.70, the amount protested, was paid to Frisco by the collector and receipted for by Frisco April 1, 1976.”

      . The counterpart to the present version of Rule 53.01 is Federal Rule 3 which reads: “A civil action is commenced by filing a complaint with the court.” With respect to Rule 3, a leading authority has stated: “Filing a complaint requires nothing more than delivery to a court officer authorized to receive it; the actual establishment of jurisdiction over defendant is not essential to commencement of the action.” Wright & Miller, Fed.Prac. & Proc., Vol. 4, § 1052, p. 168.

      .Crawford County is a county of the third class. Official Manual, State of Missouri, 1975-76, p. 1145.
      “The county collector in counties of the third and fourth classes, except in counties under township organization, shall pay over to the county treasurer at least once in every month all moneys received and collected by him which are due each school district . . . The county treasurer in such counties shall pay over to the treasurer of the school board of six-director districts, at least once in every month, all moneys so received by him to which the board is entitled.” § 165.071, par. 2.

      . None of the parties claims that the judgment in the instant action constituted a ruling on the merits of Frisco’s claim for a refund. Although the contents of Frisco’s petition have been alluded to, the petition itself is not a part of the instant record nor does this record contain evidence sufficient to support an adjudication of the merits of Frisco’s claim. Indeed, so far as the instant record reflects, Frisco is still in possession of the refund.

      . There has been no attack in this court upon the sufficiency of the petition or the third party petition “to state a claim upon which relief can be granted,” although Rule 55.27(g)(2) permits such an attack to be made on appeal. Still pending in the trial court, and unruled by that tribunal, are motions attacking the sufficiency of those pleadings. This court expresses no opinion upon the validity of those motions.

      .“In determining whether the trial court erred in entering summary judgment in favor of the defendant this court must view the record in the light most favorable to the plaintiff. . Summary judgment is a drastic remedy . . . A ‘genuine issue of fact’ exists, precluding the rendition of summary judgment, when there is the ‘slightest doubt’ as to the facts, . so long as the fact in doubt is a material one which has ‘legal probative force as to a controlling issue.’ ” (Authorities cited.) Peer v. MFA Milling Co., 578 S.W.2d 291, 292 (Mo.App.1979).

      . Slightly different provisions relating to refunds of sales taxes are contained in § 144.190 RSMo, V.A.M.S.


author: CLEMENS, Senior Judge.

text:
    Ruth HOWARD, Appellant, v. Mohamad RADMANESH and Janet Radmanesh, his wife, et al., Respondents.
    No. 40995.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 21, 1979.
    Nicholas G. Gasaway, Mark T. Stoll, Rich-eson, Roberts, Wegmann, Gasaway, Stewart & Schneider, P. C., Hillsboro, for appellant.

      Daryl L. Hartley, Hansen, Stierberger, Hartley and Brown, Union, for respondents.
   CLEMENS, Senior Judge.

The trial court sustained defendants’ motion to dismiss plaintiff’s petition to quiet title and she has appealed. We conclude the petition stated a cause of action.

In substance, plaintiff’s petition alleged: She and the defendants owned specifically described adjoining tracts of land; that defendants are claiming some title and interest in plaintiff’s land by encroaching upon and using a part thereof across the common boundary, the exact interest claimed by defendants being unknown but being adverse to plaintiff’s interest. Plaintiff prayed to quiet title to her described land. As said,the trial court — erroneously, we conclude— sustained defendants’ motion to dismiss plaintiff’s petition for failure to state a cause of action.

Rule 93.01, following § 527.150 1, RSMo 1969, states: “Any person claiming any title, estate or interest in real property . may institute an action against any person or persons having or claiming to have any title or estate or interest in such property

Defendants seek to uphold the trial court’s dismissal by arguing that the petition pleads “conclusion rather than facts” and fails to plead “any facts from which the court could determine that ‘encroachment’ had occurred.” To the contrary, we find plaintiff’s petition sufficient.

In Stock v. Schloman, 226 Mo.App. 234, 42 S.W.2d 61[4] (1930), the court upheld a petition in the general verbiage of the statute. The statute is to be liberally construed. Bailey v. Williams, 326 S.W.2d 115[7—10] (Mo.1959).

In Randall v. St. Albans Farm, Inc., 345 S.W.2d 220, l. c. 221 (Mo.1961), the trial court dismissed a quiet title petition which alleged plaintiff owned the described real estate and that defendants “claim some title, estate or interest to or in said premises; the nature and character of which is unknown to plaintiff and cannot be described herein, except that said claim is adverse and prejudicial to plaintiff.” In reversing the dismissal the court ruled: “The facts stated in this court were sufficient to state a claim upon which relief could be granted under Sec. 527.150, RSMo 1949.” The dismissed petition here was even more specific than in Randall and the trial court erred in dismissing it.

Reversed and remanded.

REINHARD, P. J., and GUNN and CRIST, JJ., concur.


text:
    Sanford E. WEST, Jr., Appellant, v. Melba G. MORAN, Pamela Gilmartin, Crystal Brohammer and Ginger Caby, Respondents.
    No. 40302.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 21, 1979.

      Daniel P. Reardon, St. Louis, for appellant.
    James L. Homire, Jr., St. Louis, for respondents.
   CRIST, Judge.

Appellant contested the will of his mother upon the issues of mental incapacity and undue influence.

Testatrix had devised and bequeathed a substantial part of her property to a friend with whom she had lived for the last eighteen years. Appellant’s mother made no provision in her will for her son. The trial court directed a verdict against contestant at the close of his case.

Upon appeal, the contestant’s first argument is that the trial judge erred in refusing to disqualify himself pursuant to Rule 51.05. We agree with appellant.

The record indicates the case was assigned for trial and came before the trial judge on February 28, 1978. Because the appellant indicated he would seek a writ of prohibition in the appellate court, the trial judge agreed not to proceed to trial that day.

The following day, March 1, 1978, appellant did file a petition for a writ prohibiting further proceedings. The trial judge indicated he desired to proceed with the trial until the appellate court should either deny or issue the preliminary writ and would grant a mistrial should the preliminary writ issue. Appellant’s counsel then stated his intention to disqualify the judge should he proceed to trial prior to the appellate court’s ruling upon the writ application. Following a discussion between the judge and both counsel, the trial court indicated it would not proceed to trial prior to the appellate court’s disposition of the writ proceedings. Appellant’s counsel indicated he had no reason to disqualify the judge should he await the appellate court’s ruling before proceeding.

The appellate court denied the petition for the writ during the afternoon of March first. The trial court recessed until 9:30 the next morning.

On March 2, 1978, appellant’s counsel arrived in court at between 9:30 and 9:35 a. m. to find opposing counsel, the judge, and the jury seated in court. Appellant’s counsel made oral application for a change of judge. The trial court granted appellant leave to later substitute and file a written application for change of judge, but denied the oral application for change of judge. Thereafter, the jury was sworn, and trial commenced.

On March 3, 1978, appellant asked leave to file his late, written application for change of judge. The court granted his request. The written application for change of judge was filed. The court denied his application.

Respondent says he was never served with a copy of appellant’s written application for change of judge as required by Rule 51.05(c). However, respondent had actual notice of appellant’s application for change of judge. The written application for change of judge was a substitute for the oral motion filed on March 2, 1978.

Rule 51.05 commands the trial court to sustain a timely, written application for change of judge. The application is timely if:

“. . . filed at least thirty days before the trial date or within the five days after a trial setting date has been made, whichever date is later, unless the trial judge has not been designated within that time, in which event the application may be filed within ten days after the trial judge has been designated or at any time prior to trial, whichever date is earlier.” Rule 51.05(b).

The trial judge has no discretion but to grant the timely request except to rule upon pre-trial motions which have already been submitted to the judge. Natural Bridge Development Co. v. St. Louis County Water Co., 563 S.W.2d 522 (Mo.App.1978).

In the instant case, the application for change of judge was made within ten days after designation of the trial judge and prior to the commencement of the trial. The request was timely.

Our disposition of appellant’s argument concerning Rule 51.05 makes unnecessary any consideration of appellant’s other argument that he made a submissible case that the testatrix lacked testamentary capacity or that the will was the result of undue influence.

The judgment is reversed and remanded.

REINHARD, P. J., and GUNN, J., concur.