author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Jackie George LEDFORD, Appellant.
    No. KCD 28699.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Motion for Rehearing and/or Transfer Denied May 2, 1977.
    Application to Transfer Denied June 14, 1977.

      William G. Mays, II, Public Defender, Columbia, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   PER CURIAM.

A conviction for robbery in the first degree (§§ 560.120, RSMol969, and 560.135 RSMo Supp. 1975) and a sentence of twenty-five years imprisonment prompted defendant to appeal.

On appeal, three points are raised by defendant: (1) error in permitting a state’s witness to testify as to matters he overheard during a conversation between defendant and a co-conspirator after the offense was consummated; (2) error in overruling defense counsel’s objection to the state’s reference to defendant as “Jackie-Boy” during closing argument; and (3) error in the jury’s verdict in that it was not responsive to the information because the former referred to “Jackie George Leford ” and the latter referred to “Jackie George Ledford”.

A concise overview of the facts will presently suffice as the sufficiency of the evidence has not been challenged. Certain facts will be dealt with in greater particularity as needed when the various points are discussed.

At approximately 2:30 A.M. on November 6, 1975, a man entered the Columbia Best Western Inn, Columbia, Missouri, pointed a sawed-off shotgun at the night clerk and demanded the establishment’s money. The night clerk readily complied and the motel was relieved of approximately $300.00. The man wielding the sawed-off shotgun then left the motel and got into a 1966 Mercury automobile which was waiting outside with a driver. The two men then fled in the automobile. A member of the Columbia, Missouri, Police Department who was on a “stakeout” nearby gave chase and the automobile occupied by the two men careened off the road and ended up in a ditch. The two men then abandoned their automobile and fled on foot. In the course of doing so, they discarded the money, the sawed-off shotgun, and some items of clothing in the vicinity of their automobile. Later that same morning, defendant was apprehended and charged with the robbery in question. During the trial, defendant was identified by the night clerk as the man who entered the motel and committed the robbery.

Relative to defendant’s first point, while he was still at large he entered a house trailer in Columbia, Missouri, accompanied by another man identified as J_ M-The house trailer was occupied by J- M-⅛ sister. The occupant’s brother-in-law, who was present at the time, overheard a conversation that ensued between defendant and J_ M-The occupant’s brother-in-law was called as a witness for the state and testified that during the course of the referred to conversation defendant stated that they “might give five to ten years to which J- M- replied that they “might get ten to twenty”. Defense counsel lodged a timely objection to J_ M-’s reply comment and gave as grounds therefor that such was hearsay and violative of defendant’s constitutional right of confrontation.

In approaching the first point, both' the defendant and the state assume that J-M-was the driver of the getaway vehicle and, hence, a co-conspirator in the perpetration of the robbery. It is well established that an extrajudicial statement inculpating a conspirator who is charged with and standing trial for an offense, made by a co-conspirator after consummation of the offense and not in furtherance of the conspiracy, is hearsay and inadmissible against the conspirator who is standing trial. State v. Cross, 357 S.W.2d 125, 128 (Mo.1962); State v. Chernick, 278 S.W.2d 741, 748 (Mo.1955); and State v. Hill, 352 Mo. 895, 179 S.W.2d 712, 715-16 (1944). The principle stated above has been eroded by at least one of the exceptions among the labyrinth of exceptions pervading the field of hearsay evidence in general. An inculpatory extrajudicial statement made by a co-conspirator, although made after termination and not in furtherance of the conspiracy, may be admissible against a conspirator standing trial if made in the defendant-conspirator’s presence and under circumstances indicating that the defendant-conspirator acquiesced therein; the defendant-conspirator’s acquiescence may be implied by a failure on his part to deny the truth of such statement if it was one which would naturally call for a denial and he was offered an opportunity to do so. 22A C.J.S. Criminal Law § 768 (1961); and cases collected in the annotations in 80 A.L.R.1235, 1243-^4 (1932) and 115 A.L.R. 1510,1512-14 (1938). This exception is one of long-standing recognition in this state. State v. Walker, 98 Mo. 95, 9 S.W. 646, 650-51 (1888). It is rooted in the “tacit admission” doctrine, likewise well established in this state. See State v. Samuel, 521 S.W.2d 374, 375 (Mo. banc 1975), for a general explication of the “tacit admission” doctrine. Defendant’s statement that they “might get five to ten years” and J_ M_’s reply that they “might get ten to twenty” have a common ring of culpability. Although the record in the instant case is silent with respect to whether defendant denied or was not afforded an opportunity to deny the statement made by J_ M_during the course of their conversation, thereby precluding the notion that he passively acquiesced in it, it may reasonably be said that defendant actively acquiesced in it as evidenced by his own incul-patory extrajudicial statement of the same general tenor which immediately preceded and obviously occasioned J_M_⅛ reply comment. A ratiocinative analysis of the underlying logic and rationale of the “tacit admission” doctrine permits the conclusion that it possesses sufficient elasticity to accommodate instances of active acquiescence as well as passive acquiescence, thereby justifying inclusion of J_M_⅛ reply comment within its purview.

Campbell v. United States, 415 F.2d 356 (6th Cir. 1969) dispels defendant’s constitutional argument. There the court held that the admission of certain inculpatory extrajudicial statements made by a co-conspirator did not violate appellant’s Sixth Amendment right of confrontation since they “fell squarely within the confines of the narrow co-conspirator exception” to the hearsay rule. In so holding, the court relied on the following statement found in Bruton v. United States, 391 U.S. 123, 128, n.3, 88 S.Ct. 1620,1623, 20 L.Ed.2d 476 (1968): “We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence . . . . There is not before us, therefore, any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause.” Defendant’s first point is ruled adversely to him.

In his second point, defendant contends that he was deprived of a fair trial because the prosecutor during closing argument, over objection, referred to him as “Jackie-Boy”. The epithet was used only once by the prosecutor who, immediately after defendant’s objection to its use was overruled, stated to the jury that he meant no disrespect to defendant.

Whether or not remarks of counsel during closing argument are so improper as to ascend to the level of prejudicial error is a matter resting largely within the trial court’s discretion and an appellate court will not interfere unless the record shows an abuse of discretion. State v. Rutledge, 524 S.W.2d 449, 458 (Mo.App.1975); and State v. Connell, 523 S.W.2d 132, 137 (Mo.App.1975). In State v. Wallace, 504 S.W.2d 67, 72 (Mo.1973), it was held that the trial court did not abuse its discretion in overruling an objection to the prosecutor’s reference to the defendant as a “young punk” during the course of closing argument. Flippant though the term of reference employed by the prosecutor in the instant case may have been, prejudicial it was not. Although this term of reference is not condoned, it cannot be said, upon the record, that the trial court abused its discretion in overruling defendant’s objection. Accordingly, defendant’s second point is ruled against him.

Defendant, in his third and final point, charges that the trial court erred in not granting him a new trial because the verdict of the jury was not responsive to the information by which he was charged and upon which he stood trial. In the information defendant’s name appears as “Jackie George Ledford”. The verdict returned by the jury read as follows:

“VERDICT
We, the jury, find the defendant, Jackie George Leford [sic], guilty of Robbery in the First Degree as submitted in Instruction No. 5.
We fix punishment at twentv-five years.
/s/ Charles Dvsart
FOREMAN”

The verdict, as returned by the jury, was on one of three verdict forms prepared and submitted to the jury by the trial court. The other two verdict forms (one finding defendant not guilty and the other finding defendant guilty with the jury unable to agree upon punishment) prepared and submitted to the jury by the trial court correctly spelled defendant’s surname. It is patently obvious that a typographical error was responsible for the discrepancy between the correct spelling of defendant’s surname as it appeared in the information and its spelling as it appeared in the verdict returned by the jury. Moreover, the fact that defendant was referred to on repeated occasions through the course of the trial as “the defendant, Mr. Ledford”, “Jackie Led-ford”, and “Jackie George Ledford” is of salient significance.

The purpose of a verdict “may be defined as being, when properly drawn, a definite answer given by the jury to the court concerning the matter of fact submitted to them for their consideration and determination . . . [t]o meet these requisites it should, in general terms, respond to the charge made in the indictment or information . . . [pjossessed of these requisites, it will be sufficient, when a judgment is properly rendered thereon, to bar another prosecution for the same offense.” State v. Stuart, 316 Mo. 150, 289 S.W. 822, 824 (1926). In testing the verdict of a jury, the overriding objective is to ascertain the intent of the jury. If the jury’s intent is clearly discernible, the verdict is good though it may be irregular in form. State v. McCarthy, 336 S.W.2d 411, 417 (Mo.1960); and State v. Shumate, 516 S.W.2d 297, 302 (Mo.App.1974). For example, in State v. Stuart, supra, 289 S.W. at 825, the court held that the designation of defendant as “defendant” in a verdict, without otherwise naming him, was proper and constituted a sufficient verdict.

In support of his position, defendant principally relies upon the case of State v. McBride, 19 Mo. 239 (1853), wherein the Supreme Court held that a verdict returned against “James McBride” should be set aside because it was “Joseph McBride” who had been indicted and who stood trial. The facts in the instant ease are clearly distinguishable from those in State v. McBride, supra. In McBride, the defendant (Joseph McBride) was jointly indicted and jointly tried for a riot which occurred in St. Louis County. In the instant case the defendant was separately informed against and separately tried. Unlike McBride, no possibility of confusion existed in the instant case as to whom the jury intended to convict. It also appears that the verdict returned in McBride found “James McBride” guilty absent any companion designation of him as a defendant. On the other hand, in the verdict returned by the jury in the instant case, although the letter “d” was omitted from defendant’s surname, it was preceded by the companion designation “defendant”. To hold, where as here the defendant was separately informed against and separately tried, that the verdict was not responsive to the information would require this court to unrealistically emphasize form over substance. Notwithstanding the slight misnomer seized upon by defendant, this court entertains no qualms in holding that the jury clearly intended to and did find defendant guilty of robbery in the first degree. Ergo, defendant’s third and final point is not persuasive.

Defendant was ably represented on appeal and every potential avenue that might lead to error was fully explored. However, the absence of any error compels affirmance of the judgment.

Judgment affirmed.

All concur.

      . The “tacit admission” doctrine has been held applicable in the following cases where a co-conspirator of a defendant-conspirator made an inculpatory extrajudicial statement in the defendant-conspirator’s presence after the conspiracy had terminated. U. S. v. Steel, 458 F.2d 1164, 1166 (10th Cir. 1972); U. S. v. Schroeder, 433 F.2d 846, 850 (8th Cir. 1970); Eaton v. State, 280 Ala. 659, 197 So.2d 761, 763 (1967); and Munson v. State, 250 Ala. 94, 33 So.2d 463, 464 (1948).

      . The record also reveals that during allocution, formal entry of judgment and pronouncement of sentence, defendant was correctly described and referred to as “Jackie George Led-ford”.


source: Caselaw Access Project

author: TURNAGE, Judge.

license: Public Domain

text:
    STATE ex rel. Allan R. HOFFMAN and Sun Swept Apartment Company, Relators-Appellants, v. PUBLIC SERVICE COMMISSION of Missouri, Respondent, Laclede Gas Company, Intervenor-Respondent.
    No. KCD 28766.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Motion for Rehearing and/or Transfer Denied May 2, 1977.
    Application to Transfer Denied June 14, 1977.

      Dominic Trioiani, Mark T. Keaney, St. Louis, for relators-appellants.
    Leland B. Curtis, Byron E. Francis, Missouri Public Service Commission, Jefferson City, for respondent.
    Richard L. Eckhart, St. Louis, for inter-venor-respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   TURNAGE, Judge.

Allan Hoffman and Sun Swept Apartment Company appeal an order of the circuit court affirming an order of the Public Service Commission in which Hoffman and Sun Swept were denied a variance from General Order No. 51. General Order No. 51 prohibits payments by utilities for promotional purposes.

On this appeal Hoffman contends the Commission’s order denying the variance is not supported by competent and substantial evidence and is unreasonable. Reversed.

This is the second appeal in this litigation. The first appeal was State ex rel. Hoffman v. Public Service Commission, 530 S.W.2d 434 (Mo.App.1975). In that case Hoffman appealed the denial by the Commission of his application for a variance under Order No. 51. The circuit court held the provision for a variance adopted by the Commission was invalid because it required the Commission to determine the validity of contracts when the Commission is prohibited from declaring or enforcing any principle of law or equity. On appeal this court held the exception contained in Amended Order No. 51 providing for certain promotional contracts to be fulfilled was valid. This court held the Commission was entitled to formulate a rule which employed the use of legal terms and could apply the “undisputed legal terms” to “raw facts” to make the necessary administrative finding of whether or not a variance should be granted. 530 S.W.2d 439, 440. This court remanded the ease to the circuit court in order to review the Commission’s order to determine if it were reasonable and supported by substantial and competent evidence.

The Commission adopted the original Order No. 51 on July 8, 1971, and on September 15, 1972, adopted General Order No. 51 as amended. This order prohibited utilities from making promotional payments. The amended order contains the following exception:

“Notwithstanding the provisions of paragraphs (1) and (2), the Commission does hereby authorize until November 1, 1972, the filing of applications praying that certain promotional payments which are otherwise prohibited under the provisions of this rule, be permitted, on a proper showing, in verified form, that Applicant would otherwise suffer a substantial legal detriment, and on further finding by the Commission that said detriment occurred pursuant to a legally binding and enforceable contract entered into prior to July 8, 1971.”

On April 16, 1971, Laclede made an offer to make promotional payments for the apartment complex being built by Hoffman. This offer stipulated the payments would be made if each apartment unit had individual gas meters; was equipped with gas ranges with an automatic ignition; had an automatic gas heating system and automatic gas water heater and if there were no 240 volt (3-wire) electric outlets in any kitchen or laundry area. The offer also contained the proviso that all laundry equipment was to be gas. Further, the project signs and other advertising media employed to advertise the apartment project was to make mention of “All Gas Blue Star Apartments” and feature the Laclede Gas logo. The offer provided Lac-lede would pay Hoffman $30,000 for the 200 unit apartment complex. In addition, Lac-lede was to pay a percentage of the advertising costs and was to participate in the cost of installing gas lamps on the exterior.

Upon receipt of this offer an acceptance was signed and thereafter construction started on the apartment complex. Under this agreement, Laclede had paid Hoffman $9,000 when the Commission adopted its original General Order No. 51. Thereafter, the amended order was adopted which contained the exceptions set out above. The Commission stated it would receive applications for a variance from General Order No. 51 under the exception until November 1, 1972. Hoffman’s application for a variance was filed on July 6, 1972, and the Commission heard evidence in support thereof.

Hoffman testified he began construction of his apartment units in 1971, and by April, 1972, had progressed to a point that he could not change from an all gas project. He stated all of the gas lines had been installed and all of his signs advertising the project had been erected showing the all gas nature of the apartments.

Hoffman further testified he had planned his entire project based on his agreement with Laclede and his financing depended on the receipt of the balance due from Laclede. Hoffman stated if he did not receive the balance of $21,000, plus $700 on the gas lights, and $1,000 on advertising from Lac-lede, he would have to raise this amount from other sources.

Laclede appeared at the hearing on Hoffman’s application for a variance. All parties agreed a valid agreement existed between Hoffman and Laclede and further that Hoffman was entitled to recover the balance due of $22,700 from Laclede unless Laclede was prohibited from paying by the Commission. In its findings of fact, the Commission found Laclede had sent a letter on April 16, 1971, making an offer of a bonus of $30,000. The Commission found under this offer Hoffman was not required to actually construct the project. It further found Hoffman had used more expensive appliances in the project than he would have without the agreement with Laclede. The Commission found he could have changed to less expensive appliances. The decision to proceed with the more costly appliances was a business judgment made by Hoffman, according to the Commission’s findings.

The Commission concluded “there was no legally binding and enforceable contract entered into prior to July 8,1971, which would cause applicant (Hoffman) to suffer substantial legal detriment if not paid the promotional allowances.” The Commission, with one dissent, then concluded Hoffman had not met the requirements of the exception in Amended Order No. 51, and was not entitled to receive the balance of payments from Laclede.

Under State ex rel. Hoffman v. Public Service Commission, 530 S.W.2d 434 (Mo.App.1975) and McBride & Son Builders v. Union Elec. Co., 526 S.W.2d 310 (Mo.1975) it is clear the Commission had the power to determine whether or not Hoffman met the requirements of the exception to be entitled to receive the balance of the promotional payments.

On this appeal the duty of this court is to review the order of the Commission to determine if such order is supported by competent and substantial evidence upon the whole record and is reasonable. State ex rel. Chicago, Rock Island, and Pacific Railroad v. Public Service Commission, 312 S.W.2d 791, 796 (Mo.banc 1958).

In the Commission’s brief its counsel states the Commission found the existence of a legally binding and enforceable contract between Hoffman and Laclede and found that Hoffman would suffer a substantial legal detriment; however, counsel states the detriment does not flow from the contract. This, counsel states, follows from the fact the agreement between Hoffman and Laclede did not require Hoffman to actually construct an apartment project. Since the contract did not require Hoffman to construct the apartments, Hoffman was free under this agreement not to construct the apartments. Therefore, the argument concludes, if Hoffman was not required to construct the apartments, he could not suffer any legal detriment pursuant to the contract by reason of Laclede being prevented by the Commission from making payment under the contract.

The evidence would only support a finding that a legally binding contract existed and the failure of Laclede to pay Hoffman would constitute a substantial legal detriment. The only question to be resolved is the Commission’s argument that the detriment did not flow from the contract.

In making its finding and order, the Commission overlooked the rule adopted in Downey v. United Weather Proofing, 363 Mo. 852, 253 S.W.2d 976, 980[5] (1953):

“The right to perform a contract and to reap the profits therefrom, and the right to performance by the other party, are property rights entitling each party to the fulfillment of the contract by performance.”

In this case the contract between Laclede and Hoffman was of the type commonly referred to as a unilateral contract. The offer was made by Laclede and the acceptance by Hoffman consisted of his performance. Hoffman had a valid contract and had the right to perform and to reap the profits therefrom. This in and of itself constituted a property right. Thus, even if it can be said the agreement did not obligate Hoffman to actually construct his apartment project, still the existence of the contract gave him the right to perform and to receive the profits therefrom. To give up this right to perform and to receive the profits would be a substantial legal detriment.

However, Hoffman had progressed beyond the point of having a contract right to perform and thereby receive its profits. In this case he had substantially performed under the agreement and this would prohibit Laclede from withdrawing its offer. Coffman Industries, Inc. v. Gorman-Taber Co., 521 S.W.2d 763, 772 (Mo.App.1975).

Thus, Hoffman acquired a right to perform his agreement as soon as it was made, and by substantial performance had obtained the right to prevent Laclede from withdrawing its offer. In this posture, to deny Hoffman the profits of his contract would certainly result in a substantial legal detriment which would flow from the contract. Indeed the only loss Hoffman could suffer would arise out of and by reason of the contract.

All of the evidence before the Commission would only support a finding that Hoffman had a legally binding and enforceable contract with Laclede which was entered into prior to July 8, 1971, and that Hoffman would suffer a substantial legal detriment if payments under the contract were prohibited. The finding of the Commission that Hoffman did not suffer a substantial legal detriment pursuant to the contract is not supported by the evidence.

The judgment of the circuit court is reversed with instruction to remand this cause to the Public Service Commission with instructions to the Commission to enter its order allowing Laclede to pay the balance due Hoffman of $22,700 under the contract between those parties.

All concur.


author: ANDREW J. HIGGINS, Special Judge.

text:
    Abe ROTSTAIN, Respondent, v. Timothy D. LILLIS, Appellant.
    No. KCD 28224.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Motion for Rehearing and/or Transfer Denied May 2, 1977.
    Application to Transfer Denied June 14, 1977.

      Walter K. Disney, Kansas City, for appellant.
    J. Michael Cronan, Jackson & Sherman, Kansas City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW J. HIGGINS, Special Judge.

Appeal from judgment in favor of Abe Rotstain, a pedestrian, in action for damages for personal injuries sustained when struck by an automobile operated by Timothy D. Lillis. The questions are whether there was an absence of a proper guardian ad litem for defendant as to void the judgment, and whether plaintiff was contributo-rily negligent as a matter of law. Affirmed.

Appellant contends respondent “obtained a void judgment because there was no proper guardian ad litem appointed for [defendant] during discovery * * * and upon whom [plaintiff’s] Second Amended Petition could be served.”

On October 2, 1971, plaintiff filed his petition for damages against Timothy D. Lillis.

On May 3, 1972, he made application for appointment of a guardian ad litem alleging: “Defendant Timothy D. Lillis is represented by attorney * * *. The defendant admits that he is a minor but has not taken it upon himself to have a guardian appointed for him. Since the minor is above the age of 18, he can apply for the appointment of a guardian ad litem. Since he has not so applied, the plaintiff requests that the Court appoint his father, James Lillis or a member of the Missouri Bar practicing in Jackson County to act as guardian ad litem for the defendant, * * * >>

On May 10, 1972, the court entered the following: “Having considered the written application of the plaintiff and it appearing that the minor defendant has failed to apply for the appointment of a guardian ad litem, IT IS HEREBY ORDERED * * * that James Lillis be and is hereby appointed guardian ad litem for the minor defendant herein.”

On May 30, 1973, plaintiff filed his Second Amended Petition for damages naming Timothy D. Lillis and James P. Lillis, his father, as defendants.

On June 7, 1973, Timothy D. Lillis filed his answer to plaintiff’s second amended petition.

On October 23, 1974, plaintiff took the deposition of L. E. Riller, M.D. Prior to the examination of Doctor Riller, counsel for plaintiff recited for the record: “Let the record show that the deposition of Dr. L. E. Riller is being taken pursuant to a notice to take depositions * * *, that service of notice was made by Deborah Reithmeyer upon attorney Walter K. Disney, Attorney for Defendant, by mail on October 14, 1974, with the deposition scheduled by notice to be taken in the office of Dr. Riller, * * the 23rd day of October, 1974, at 4:00 o’clock p. m., that it is now 4:25 p. m., and neither the Defendant nor the attorney for Defendant have appeared pursuant to this notice, and have, in fact, upon inquiry advised that we proceed with the deposition without their appearance.” Defendant’s after-trial motion for judgment acknowledges service of the notice on counsel.

On March 19, 1975, a jury was waived and the case was tried to the court. Plaintiff and defendant Timothy D. Lillis were present and represented by counsel. Doctor Riller’s deposition was admitted in evidence over objection that defendant had no proper guardian ad litem when it was taken.

On July 3, 1975, the court entered judgment in favor of plaintiff in sum $1,500 against defendant Timothy D. Lillis and discharged defendant James P. Lillis.

In support of his contention appellant asserts: that the appointment of James P. Lillis as guardian ad litem for defendant failed because James P. Lillis never accepted the appointment; that the service of the second amended petition failed because it was not served on defendant by summons or upon any guardian ad litem or attorney representing the guardian ad litem; that the use of defendant’s deposition was erroneous because discovery could not proceed until a proper guardian ad litem was appointed; that the deposition of Doctor Ril-ler was a nullity as evidence because there was no proper notice; that although the original petition was properly served on the minor defendant, the subsequent service of the amended petition on counsel was a nullity, and all discovery was a nullity because Section 507.190, RSMo 1969, mandates that a case against a minor shall not proceed until a guardian ad litem has been appointed and qualified.

Section 507.190, supra, provides that after commencement of a suit against a minor, and the service of process upon him, the suit shall not be further prosecuted until a guardian ad litem for the infant be appointed. See also Rule 52.02, V.A.M.R. If the minor defendant is fourteen years of age or older, the minor may request in writing the appointment of a particular person and the court shall appoint such person upon such written request and the written consent to serve of the proposed guardian ad litem. Rule 52.02(f), V.A.M.R. If a minor over fourteen years of age neglects to secure appointment of a guardian ad litem, the court shall appoint some competent person as guardian ad litem for the minor, and in such case there is no provision for consent. Rule 52.02(g), V.A.M.R.

In this case the minor defendant was over fourteen years of age. He neglected to secure a guardian ad litem, and the court appointed the minor’s father to act as guardian ad litem. Although appellant suggests a conflict of interest, he makes no showing that his father was not a suitable and competent person to act as guardian ad litem. The appointment was thus in accord with the provisions of Rule 52.02, supra.

The minor defendant’s guardian ad litem was appointed May 10, 1972, and the appointment was in effect at the taking of Doctor Riller’s deposition October 23, 1974. The defendant became of age prior to trial, at which time the need and authority of his guardian ad litem terminated. State ex rel. Hill v. Davis, 488 S.W.2d 305, 310 (Mo.App.1972). He proceeded to trial on plaintiff’s second amended petition and his answer with counsel and without objection. Such circumstances constituted a waiver with respect to any questions going to service of the second amended petition and notice of the taking of Doctor Riller’s deposition, and presentation of his defense. Benz v. Phillips Pipe Line Co., 47 S.W.2d 170 (Mo.App.1932).

Accordingly, it may not be said that the judgment is void for any of the reasons advanced under appellant’s first contention.

Appellant contends also that plaintiff was contributorily negligent as a matter of law on the theory that when a person voluntarily and unnecessarily places himself in a dangerous situation, fully knowing and realizing the danger and hazard to which he is exposing himself, he is guilty of contributory negligence as a matter of law. See, e. g., Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621, 626 (1935); State ex rel. Schaffer v. Allen, 253 S.W. 768 (Mo.1923); White v. Barkovitz, 254 S.W.2d 291 (Mo.App.1953).

Appellant would have the foregoing theory applied to foreclose plaintiff on a hypothesis as follows: “The Respondent testified that he was aware of the heavy traffic upon Main Street; that he attempted to cross Main Street about sixty (60) feet south of the crosswalk located at Fiftieth and Main; that he could see north and south on Main for traffic, and, in fact, stood in the roadway waiting for traffic to clear. Appellant, called as Respondent’s witness in chief, stated that he entered his auto and did not see Respondent as he then backed up about six (6) feet, waited for northbound traffic to clear, and as his auto rolled downhill (north) about six (6) feet, the middle of his auto hood struck Respondent’s left hand and hip, not knocking Respondent off his feet. At the time of collision, Appellant placed Respondent standing about eight (8) feet into Main (near the left rear fender of the auto parked in front of him), near the west edge of the parking lane. Respondent saw Appellant prior to impact because the collision between Appellant’s auto and Respondent was to the left hand of Respondent as the arm was extended toward Appellant; therefore, there was never any obstruction which would or could have caused [sic] Respondent from seeing Appellant pri- or to Respondent stepping out in the street.”

The evidence also warrants reasonable minds to accept a hypothesis as follows: Plaintiff parked his car in a Milgram Store parking lot and walked west from his car to Main Street and proceeded to cross Main Street at the north entrance to Milgram’s parking lot, a point where pedestrians customarily cross Main Street. There was no crosswalk at 50th Street, the closest intersecting street. Prior to stepping into Main Street plaintiff looked to the south and saw no cars in the northbound half of the street. He proceeded to cross the northbound lanes of Main Street. At a point about three feet from the center line, he stopped and looked to the north for southbound traffic, and was struck by a vehicle driven by defendant Timothy D. Lillis. Defendant had been parked at the east curb of Main Street when plaintiff started across Main Street. In leaving the curb, he drove his vehicle forward (north) while looking to the rear and to the south. He did not see plaintiff until too late to stop and may already have hit him before seeing him. Plaintiff was struck on the left side and whirled around. He sustained injuries to his left hip, left shoulder and torso, for which he had medical treatment, X rays, medicines, and therapy-

Whether by looking south before entering Main Street, under the circumstances in evidence, plaintiff discharged his duty to exercise ordinary care for his own safety, or whether he was bound to look again as he crossed the northbound traffic lanes, were questions for the trier of fact and not for resolution as a matter of law. Walsh v. Southtown Motors Co., 445 S.W.2d 342 (Mo.1969). The law does not say how often such a pedestrian must look, or how far, or when or from where. If, for example, he looks as he starts to cross, and the way is clear, he is not bound as a matter of law to look again. Knapp v. Barrett, 216 N.Y. 226, 230, 110 N.E. 428. His duty to look to the south a second or third time was relative rather than absolute, Romandel v. Kansas City Public Serv. Co., 254 S.W.2d 585, 591[10] (Mo.1953); and he is not required to look for danger when there is no cause to anticipate danger, Williamson v. St. Louis Public Serv. Co., 363 Mo. 508, 252 S.W.2d 295, 299[5-8] (1952). This case falls within the general rule that where a pedestrian, intending to cross a street, looks and sees no automobile approaching and is injured during his crossing, the question whether in the exercise of ordinary care he should have continued to look for approaching traffic as he proceeded across the street is for the jury. Walsh v. Southtown Motors, supra.

That plaintiff was crossing the street at other than a regular crossing is a circumstance to be considered on the question of contributory negligence, but it alone does not bar recovery. Hicks v. DeLuxe Cab Co., 189 S.W.2d 152, 155 (Mo.App.1945); Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463, 466 (1940).

Judgment affirmed.

All concur.

      . The transcript omits information with respect to the taking of defendant’s deposition.


author: TITUS, Judge.

text:
    MACALCO, INC., a corporation, and Mary J. McDowell, Administratrix of the Estate of Orville McDowell, Deceased, Plaintiffs-Respondents, v. GULF INSURANCE COMPANY, a corporation, Defendant-Appellant-Respondent, and The Aetna Casualty and Surety Company, a corporation, Defendant-Appellant.
    Nos. 9701, 9702.
    Missouri Court of Appeals, Springfield District.
    April 11, 1977.
    Motions for Rehearing or Transfer Denied April 29, 1977.
    Application to Transfer Denied June 14, 1977.

      B. H. Clampett, William A. R. Dalton, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for plaintiffs-respondents.

      Glenn A. Burkart, Mann, Walter, Bur-kart, Weathers & Walter, Springfield, for defendant-appellant-respondent.
    Bob J. Keeter, Schroff, Keeter & Glass, Inc., Springfield, for defendant-appellant.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

Macalco, Inc. (Macalco) owned an airplane which crashed in a nighttime flight and was destroyed. At the time of the occurrence, the plane was being piloted by Macalco’s president, Orville McDowell (McDowell), and carrying two passengers. All of the occupants perished. When the tragedy happened, Macalco and McDowell were insureds in an aircraft hull and liability policy issued by Gulf Insurance Company (Gulf) and in an excess indemnity (umbrella) policy issued by The Aetna Casualty And Surety Company (Aetna). Gulf denied coverage. Macalco and the administratrix of the estate of the deceased pilot, who had been sued for the wrongful deaths of the passengers, brought this action against Gulf, Aetna and the suing passengers’ widows for a declaration of insurance coverages and liabilities. Following a bench trial the court ruled, in specifics to be detailed anon, that the policies afforded coverage for the claims arising from the crash. Gulf and Aetna filed separate appeals which have been consolidated. There is no conflict of consequence in the evidence and much of it is documented.

Gulf’s policy provided coverage for (1) bodily injury and property damage liability, (2) medical payments and (3) physical loss of and damage to the airplane. The single limit for bodily injury and property damage liability was stated under “Declarations” to be “$1,000,000 each occurrence See End. # 1”. By this endorsement, entitled “Passenger Limits of Liability,” it was agreed that $100,000 was Gulf’s liability for bodily injury damage sustained by any one passenger per occurrence or $500,000 for all passengers per occurrence.

In the “Exclusions” section of Gulf’s policy is stated: “This policy does not apply: . 6. Under coverages [provided by the policy] while the aircraft is in flight and . (d) operated by a Student Pilot unless such flight or attempted flight is with the specific advance approval of and under the supervision and control of an F.A.A. Certificated Commercial Instructor Pilot.”

Known as the “Pilot Clause” and included in “Part Two” of Gulf’s policy under the heading of “Declarations,” was the following: “7. Pilots. It is a condition hereof that such ‘Flight’ coverage as is provided by the policy applies only while the aircraft is being operated by the following specified Pilot(s) while holding proper Certificate(s) and Rating(s) as required by the Federal Aviation Agency for the flight involved:

(a) [x] Orville McDowell or Jack D. Cotton
(b) [ ] Any Student Pilot
(c) [ ] Any Private Pilot or [ ] any Commercial Pilot, who has logged Solo or Pilot in Command flight time of at least: -total hours during the past_ years; -hours in Multi-engine aircraft during the past_; . . .

Condition 24 of Gulf’s policy stated: “Misrepresentation and Fraud. This entire policy shall be void if the insured has concealed or misrepresented any material fact or circumstance, whether under the declarations or otherwise, concerning this insurance or the subject thereof, or in case of any fraud, attempted fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after the loss.”

The appropriate provisions of Aetna’s policy will be set forth later when we consider its appeal.

Gulf’s policy and Aetna’s policy were written through the insurance agency of Handley-Adams, Inc. Gulf’s policy covering the time of the involved crash was the successor to a similar policy Gulf had previously issued to Macalco through the agency. Both Gulf policies were issued on the written applications of Macalco. Mr. Handley of the agency testified he had known McDowell (president of Macalco) for “about a year and a half” before the crash and had served, on Macalco’s board of directors “for about a year and a half or two years.” Handley “handled most of the insurance contracts for” Macalco and “was authorized to sign [the application] by [McDowell] for him.” The first application for Gulf’s previous policy was signed “Macalco, Inc. By Orville McDowell Pres.” Handley said he affixed the signature per McDowell’s authorization. The second application was not signed. In both forms the applicant warranted that the information and particulars contained therein were true and complete. Each of the applications represented that McDowell had been certificated or rated as a Private Pilot.

Regulations and rules promulgated by government agencies pursuant to delegation of authority from Congress have the force and effect of law and Missouri courts will judicially notice the rules and regulations adopted by such agencies, including those made by the Federal Aviation Agency (FAA). Fredrick v. Bensen Aircraft Corporation, 436 S.W.2d 765, 769-770[3, 4] (Mo.App.1968) and authorities there cited. Federal Air Regulations (14 C.F.R.) provide: “§ 61.89(a) A student pilot may not act as pilot in command of an aircraft — (1) That is carrying a passenger; . . . .” Under § 1, “Pilot in Command” is defined as the “pilot responsible for the operation and safety of an aircraft during flight time.”

After the crash and in the course of investigating it, Gulf learned for the first time that McDowell, the pilot, did not have an FAA certification as a private pilot but held only a student pilot’s certificate. By letter dated about one month after the occurrence, Gulf, in part, wrote to Macalco: “The basis for this Coverage Denial was a breach of the Pilot Warranty (Item 7 of the Declarations). In short, Orville McDowell was not properly rated and certificated for the flight involved. He was a student pilot carrying passengers at the time of the loss. In addition to the above grounds for a Coverage Denial, [Gulf] reservefs] . all other grounds for a coverage denial which may now or later appear under [the] Policy . . .” Gulf’s original answer and counterclaim, among other things, asseverated it was additionally not liable on its policy because of Exclusion 6(d) and that the policy was void (Condition 24) because of the misrepresentation made as to the certification of McDowell as a private pilot. Similar averments were repeated in Gulf’s amended counterclaim and its answer to plaintiffs’ amended petition.

On the day following the date the Coverage Denial letter was written, Gulf sent Macalco a notice of the cancellation of its policy. There was no evidence to indicate whether or not Gulf had paid or tendered the unearned premium paid on the policy.

The trial court’s findings of fact (excluding many facts found which have heretofore been recounted) were: McDowell, at the time of the crash, had approximately 500 logged hours of flying time in single and multi-engine aircraft, but held a student pilot certificate — not a private pilot certificate; neither of the passengers in the crashed craft held an FAA certificate as a commercial instructor pilot and the flight in question was made without the advance approval thereof by, and was not under the supervision or control of, anyone certified by the FAA as a commercial instructor pilot. Nonetheless, the trial court additionally found that “McDowell was properly certificated and rated by the F.A.A. for the flight involved.” Also, the court found that no causal connection was shown between McDowell’s certification as a student pilot and the crash or between the fact that the flight in question was made without the advance approval thereof by, and was not under the supervision or control of, anyone certificated by the FAA as a commercial instructor pilot and the crash.

In its conclusions of law as to Gulf, the court declared: The coverage provided by Gulf’s policy was not avoided, defeated, excluded or impaired by item 7 of the Declarations (the Pilot Clause), or by Exclusion 6(d) or by Condition 24. The court determined that Gulf was liable to Macalco for loss of the aircraft in the sum of $32,750 and to the administratrix of the estate of the deceased pilot in the sum of $2,000 for funeral expenses. It also held Gulf responsible for the defense of the wrongful death actions and for any judgments entered thereon in favor of the suing widows. Likewise, Gulf was held liable to reimburse Macalco and the administratrix for expenses already incurred in defending the wrongful death suits. Finally, the court said: “The defense asserted by defendant Gulf based upon the alleged misrepresentation of the pilot status of Orville McDowell was not established by the proof. In addition, defendant Gulf was (and is) precluded, as a matter of law, from relying thereupon by reason of waiver arising from its sending notice of cancellation. Also, Handley-Ad-ams, Inc., was an agent of Gulf in issuing the renewal policy. The knowledge of an agent is imputed to its principal. Handley knew or could have known of McDowell’s certification. Gulf is, therefore, estopped from raising defenses concerning conditions of which it knew or should have known.”

The trial court’s conclusions of law as to Aetna were to the effect that its policy provided liability coverage for the aircraft crash with an underlying limit of $1,000,-000. However, if it should be determined on appeal that Gulf’s policy was not applicable, then and in such event, Aetna’s underlying limit would be $10,000 and Aetna would be responsible for defending the wrongful death suits.

As it affects appellate review of court tried cases, Rule 73.01, V.A.M.R., “is construed to mean that the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong. The use of the words de novo and clearly erroneous is no longer appropriate in appellate review of cases under Rule 73.01.” Murphy v. Garrón, 536 S.W.2d 30, 32[l-3] (Mo. bane 1976). The duty of an appellate court to give due regard to the opportunity of the trial court to have judged the credibility of witnesses as provided by Rule 73.01, has minor significance as to testimony proffered via depositions where the trial court has neither seen nor heard the witnesses, when there is no conflict of consequence in the testimony, and where the evidence is in writing and consists of documents. Mission Insurance Company v. Ward, 487 S.W.2d 449, 451[2] (Mo.banc 1972); Delany v. St. Louis Union Trust Company, 518 S.W.2d 704, 709[3] (Mo.App.1975).

Omitting citations, we quote what Swof-ford, J., had to say about the rules of construction to be followed in cases requiring the interpretation of insurance policies. “When an insurer seeks to escape liability on its policy solely upon the basis of a policy exclusion . . ., the burden of proof rests with the insurer to establish facts that make such exclusion applicable. Restrictive or exclusionary clauses in an insurance contract are to be strictly construed, and if ambiguous, a favorable construction for insured must be adopted. The contract terms and provisions must be viewed as a whole and a conclusion reached giving such contract a reasonable interpretation consonant with the apparent object and intent of the parties. . . . ‘. In general, policies should be given a reasonable construction in accordance with their terms and should be interpreted to provide coverage when reasonably possible to do so rather than to defeat it.’ Ambiguous provisions in an insurance policy cannot avail as a policy defense. . . . These rules of construction stem from the deep-seated principle that courts do not favor forfeitures, particularly where they are the result of technical provisions in insurance contracts and forfeitures are never permitted unless the right is clearly established.” Allison v. National Insurance Underwriters, 487 S.W.2d 257, 262[l-5] (Mo.App.1972).

Gulf’s Appeal

We perceive no ambiguity in or incompatibility between the provisions reposing in the Pilot Clause and Exclusion 6(d) in Gulf’s policy which would render either inoperative or result in an overriding of the exclusion by the Pilot Clause.

Unlike the instant matter, aircraft insurance cases in which coverage was sustained involve express policy grants of coverage which overrode otherwise exclusionary provisions. E. g.: In Fireman’s Fund Insurance Co. v. McDaniel, 187 F.Supp. 614 (N.D. Miss.1960), aff’d per curiam 289 F.2d 926 (5th Cir. 1961), the printed Pilot Clause had been typed over completely with a declaration of coverage when the craft was being flown by the named pilot “or any currently certified commercial pilot having [certain experience].” This, coupled with the negotiation context, including the truthful revelation of the named pilot’s substandard certification, was held to create an express grant of coverage via the Pilot Clause which overrode an exclusion for certificate violation. It was said in Insurance Co. of North America v. Butte Aero Sales & Service, 248 F.Supp. 276 (D.Mont.1965) that a typewritten endorsement stating that coverage would not be good “unless the pilot in command of the aircraft is [named pilot] or any other pilot who is properly certificated and rated for the flight” overcame the exclusion clause because otherwise the endorsement would have been unnecessary. Other cases upholding coverage do so on the theory that the insurer’s tenuous defenses rested upon violations of FAA regulations which went beyond the strict wording of the policy requirements. Roach v. Churchman, 431 F.2d 849 (8th Cir. 1970); Royal Indemnity Co. v. John F. Cawrse Lumber Co., 245 F.Supp. 707 (D.Or.1965). In addition to the foregoing are cases where coverage is afforded where flight rules are not involved and the facts do not match the exclusion advanced by the insurer. Ranger Insurance Co. v. Mercantile Trust Co., 363 F.Supp. 795 (E.D.Mo.1973).

No case has been found involving the precise combination of contract clauses seen here. However, aircraft insurance exclusionary clauses are usually upheld on their literal terms, even where the proscribed activity is found by reference to FAA regulations and where the pilot’s name is typed into the blank provided in the Pilot Clause form. Commercial Ins. Co. of Newark, N. J. v. Gonzalez, 512 F.2d 1307 (1st Cir. 1975) — policy exclusion upheld requiring co-pilot for “night flight”; Bequette v. National Ins. Underwriters, Inc., 429 F.2d 896 (9th Cir. 1970) — Pilot Clause very similar to instant case; pilot not certificated “for flight involved” because he was carrying passengers; Underwriters at Lloyd’s of London v. Cordova Airlines, Inc., 283 F.2d 659 (9th Cir. 1960) — exclusion for flying when waiver required; crashed while carrying dynamite without waiver; Globe Indemnity Company v. Hansen, 231 F.2d 895 (8th Cir. 1956) — “aerobatic flight” exclusion enforced; Bruce v. Lumbermens Mut. Cas. Co., 222 F.2d 642 (4th Cir. 1955)— exclusion when flying contrary to “any government regulation” violated when crash occurred while engaged in aerobatic flight without parachutes; Powell Valley Electric Cooperative, Inc. v. United States Aviation Underwriters, Inc., 179 F.Supp. 616 (W.D.Va.1959) — exclusion for instructional use upheld because student was in control at time of accident; Glades Flying Club v. American Aviation & Marine Ins. Co., 235 So.2d 18 (Fla.App.1970) — pilot did not meet FAA regulations as required by Pilot Clause; Farmers & Merchants Bank of Manchester v. Ranger Ins. Co., 125 Ga. App. 166, 186 S.E.2d 579 (1971) — student pilot carried passenger and thus violated exclusion which made reference to Pilot Clause requiring certificates and ratings “for the flight involved”; Omaha Sky Divers Parachute Club, Inc. v. Ranger Ins. Co., 189 Neb. 610, 204 N.W.2d 162 (1973) — exclusion making reference to Pilot Clause upheld because pilot did not have medical certificate “for the flight involved”; Baker v. Insurance Co. of North America, 10 N.C. App. 605, 179 S.E.2d 892 (1971) — Pilot Clause required pilot to be “properly certificated and rated for the flight and the aircraft.” Held, no coverage because of lack of medical certificate as required by FAA regulations.

Respondents (Macalco and the ad-ministratrix) stress Ranger Insurance Company v. Culberson, 454 F.2d 857 (5th Cir. 1972), to justify the trial court’s finding that “McDowell was properly certified and rated by FAA for the flight involved.” This finding seems to us to be out of harmony with the finding and undisputed facts (1) that McDowell held a student pilot certificate — not a private pilot certificate, (2) that neither of the passengers were FAA certificated commercial instructor pilots and (3) that the flight was not made with the specific advance approval and under the supervision and control of an FAA certificated commercial instructor pilot. As we view it, the fallacy in relying on Culberson in light of the policy provisions in this case, lies in the fact that Ranger’s policy extended coverage to “the following pilot(s) . . , while ‘in flight’ and while holding proper pilot certificate(s) with appropriate ratings.” The court said (Id. 864) that a proper certificate was a certificate that was effective until surrendered, suspended, or revoked. On the other hand, the Pilot Clause in Gulf’s policy did not predicate coverage only on proper certificates with appropriate ratings, but made it a condition that the coverage applied “only while the aircraft is being operated by the following specified Pilot(s) while holding proper Certificate^) and Rating(s) as required by the Federal Aviation Agency for the flight involved.” (Our emphasis). Thus, while McDowell’s certificate and rating may have been proper for flights authorized for student pilots by FAA, it was not proper for the flight involved because, under FAA regulations, McDowell’s student certification did not authorize him to act as a pilot in command of an aircraft that was carrying passengers. Exclusion 6(d) does not conflict with the Pilot Clause. The exclusion, recognizing the possibility of extension of coverage to flights made by student pilots, simply restricts coverage to such flights only if they be made “with the specific advance approval of and under the supervision and control of an F.A.A. Certificated Commercial Instructor Pilot.”

Gulf’s contract is distinguishable in several important respects with that involved in Fireman’s Fund Insurance Co. v. McDaniel, supra, 187 F.Supp. 614, another case relied on by respondents. First, the exclusion clause in McDaniel conflicted with the Pilot Clause; no such conflict exists in Gulf’s policy. Secondly, McDowell is a listed pilot only while holding a proper certificate and rating as required by the FAA for the flight involved; no such qualification was presented in McDaniel. There is no indication in Gulf’s policy that the Pilot Clause was intended per se to extend coverage to McDowell which exceeded either its own limitation or those of Exclusion' 6(d); in McDaniel the court interpreted the Pilot Clause as a per se extension of coverage to the named pilot without limitation as to certification. In the present case, McDowell’s name was merely typed into the blank provided with no indication this removed him from the requirement that he have the proper certificate and rating required by FAA for the flight involved.

Respondents note that “Student Pilot” is capitalized in Exclusion 6(d) and in the Pilot Clause following box (b) which, as we have observed, could be used to give limited coverage to student pilots if the flight conformed to the contractual limitations specified in the exclusion. We cannot follow or ingest the suggestion that by capitalizing “Student Pilot” it was intended that Exclusion 6(d) work as a limitation only to coverages affirmatively granted by the Pilot Clause to student pilots. We likewise reject the suggestion (not raised by brief) that since the trial court found McDowell had 500 hours of flight time, it might be concluded that McDowell was no longer a student pilot in a practical sense. Use of “Student Pilot” within the context of the Pilot Clause and Exclusion 6(d) would not convey this meaning to the ordinary reader. See State ex rel. Prudential Ins. Co. of America v. Bland, 353 Mo. 956, 963, 185 S.W.2d 654, 656[3] (1945); Jordan v. United Equitable Life Ins. Co., 486 S.W.2d 664, 666-667[6-8] (Mo.App.1972); Adams v. Covenant Security Ins. Co., 465 S.W.2d 32, 34[1] (Mo.App. 1971); N. W. Electric Power Cooperative, Inc. v. American Motorists Ins. Co., 451 S.W.2d 356, 363-364[7] (Mo.App.1969). Moreover, merely having approximately 500 logged hours of flying time is not the only requirement or lore necessary to become certificated as a private pilot by FAA.

Respondents argue that Gulf may not defend against coverage either on Exclusion 6(d) or misrepresentation because Gulf in making coverage denial based it on breach of the Pilot Clause as McDowell was not properly rated and certificated for the flight involved, i. e., he was a student pilot carrying passengers at the time of the loss. This is based on the general rule that after an insurer has denied coverage on a specific ground, it may not thereafter deny coverage on a different ground. Stone v. Waters, 483 S.W.2d 639, 645[6] (Mo.App.1972). However, it can be said that this argument is untimely. When respondents moved to strike those portions of Gulf’s pleading containing the so-called additional new defenses, their only claim was that the paragraphs sought to be stricken failed “to state a legal defense” or were “inapplicable or unavailable to” Gulf. Neither in this overruled motion nor elsewhere does the record show respondents to have advanced this election theory. Respondents prevailed against all of the policy defenses at trial and for them now to raise a new theory supporting affirmance of their own favorable judgment below appears contrary to an established practice of appellate procedure. Wantuck v. United Savings & Loan Ass’n, 461 S.W.2d 692, 697[7] (Mo. banc 1971); Huter v. Birk, 439 S.W.2d 741, 745[9] (Mo. 1969); MFA Mut. Ins. Co. v. Southwest Baptist College, Inc., 381 S.W.2d 797, 802-803[6] (Mo.1964); Stevens v. Missouri Pacific R.R. Co., 355 S.W.2d 122, 127[1] (Mo. 1962); Shelton v. M & A Electric Power Cooperative, 451 S.W.2d 375, 380[8] (Mo. App.1970). In addition, the denial letter did “reserve ... all other grounds for a coverage denial which may now or later appear.” Such a reservation may or may not be automatically dispositive. 16A Ap-pleman, Insurance Law and Practice § 9260, p. 680, n. 61.

While waiver or estoppel may bar a defense to a right the insured once had, such will not create a new coverage or rights not found in the contract. Blew v. Conner, 328 S.W.2d 626, 631[9] (Mo. banc 1959); Locke Distrib. Go. v. Hartford Accident & Indem. Co., 407 S.W.2d 658, 671[6] (Mo.App.1966); Weber v. Union Life Ins. Co., 394 S.W.2d 565, 569-570[5] (Mo.App. 1965); Fernán v. Prudential Ins. Co. of America, 162 S.W.2d 281, 286[10] (Mo.App. 1942); Shepard v. Metropolitan Life Ins. Co., 231 Mo.App. 148, 150, 99 S.W.2d 144, 145[1] (1936); 16A Appleman, Insurance Law and Practice § 9090, p. 339. Furthermore, an examination of cases shows that estoppel, with some element of unfairness, lack of notice, or other detriment to the insured, rather than voluntary waiver without such element, is the preferred theory when the insurer elects a policy defense. See Aetna Casualty & Surety Co. v. Haas, 422 S.W.2d 316, 321[8] (Mo.1968); Morris v. Reed, 510 S.W.2d 234, 240[9] (Mo.App.1974); 16A Appleman, Insurance Law and Practice § 9261, at p. 681. Respondents have known of all the defenses since the pleadings and hardly can now claim unfairness, lack of notice, etc. This especially applies to the defense on Exclusion 6(d) because the denial letter made it clear the breach was McDowell’s student license. In substance, this is the same thing as the exclusion. But be the foregoing as it may, the breach of the Pilot Clause, contrary to the trial court’s conclusion, did avoid, defeat and exclude coverage provided by Gulf’s policy.

We next consider the court’s finding that there was no causal connection shown between McDowell’s certification as a student pilot and the crash or between the fact the flight was not made with the specific advance approval of and under the supervision and control of an FAA certificated commercial instructor pilot. It is our opinion that no proof of causal connection is necessary.

“Courts of high authority have held that in policies [phrased to exclude certain activities] there is no need of any causal nexus between the injury or death and the forbidden forms of conduct. While the proscribed activity continues, the insurance is suspended as if it had never been in force.” Travelers' Protective Ass’n of America v. Prinsen, 291 U.S. 576, 582, 54 S.Ct. 502, 504, 78 L.Ed. 999, 1003 (1934). Likewise, in Perkins v. Becker, 236 Mo.App. 786, 792, 157 S.W.2d 550, 553 (1942), where insured’s judgment creditor tried to escape an exclusion for underage drivers by arguing the loss was caused by bad brakes, the court stated: “A fair and reasonable construction of ⅛§ language (in the . . exclusion clause is that the policy is suspended during the time the automobile is being operated by a person under the age allowed by our statute, and the policy being suspended during such time, there would be no liability under the coverage clause ..” To like effect is Schaefer v. Home Ins. Co., 239 Mo.App. 586, 592, 194 S.W.2d 718, 722[1, 2] (1946). Other cases repeat the theory that coverage is suspended whenever the operative facts of an exclusion come into being. The contract terms govern with no need to show some additional element [Deutsch v. State Farm Mutual Automobile Insurance Co., 457 S.W.2d 823, 826 (Mo.App.1970); General Motors Acceptance Corp. v. Western Fire Insurance Co., 457 S.W.2d 234, 237[3] (Mo. App.1970)], and such remains the rule so long as the exclusion is plain and unambiguous. The insurance law truism that policy construction favors coverage is without effect when clear language is used, whether in a restrictive clause or elsewhere in the policy. State ex rel. Prudential Ins. Co. of America v. Shain, 344 Mo. 623, 627, 127 S.W.2d 675, 676-677[2] (banc 1939); Gabel v. Bird, 422 S.W.2d 341, 344 (Mo.1967); State Farm Mut. Auto. Ins. Co. v. Ward, 340 S.W.2d 635, 639[3] (Mo.1960); Jordan v. United Equitable Life Ins. Co., supra, 486 S.W.2d at 666 — 667[6—8]; Gaiemore v. Haley, 471 S.W.2d 518, 526 (Mo.App.1971); Tickner v. Union Ins. Co., 425 S.W.2d 483, 486[3] (Mo.App.1968).

In aircraft insurance cases, many jurisdictions have expressly rejected any causation requirement while enforcing excluded uses. Electron Mach. Corp. v. American Mercury Ins. Co., 297 F.2d 212, 214[3] (5th Cir. 1961); Underwriters at Lloyd’s of London v. Cordova Airlines, Inc., supra, 283 F.2d at 664[4, 5]; Globe Indem. Company v. Hansen, supra, 231 F.2d at 897[1]; Bruce v. Lumbermens Mut. Cas. Co., supra, 222 F.2d at 645[4, 5]; Roberts v. Underwriters at Lloyds London, 195 F.Supp. 168, 171[5] (D.Idaho 1961); Powell Valley Electric Cooperative v. United States Aviation Underwriters, Inc., supra, 179 F.Supp. at 619[3]; Baker v. Insurance Co. of North America, supra, 179 S.E.2d at 894; Annot., 48 A.L. R.3d 1120, 1128-1129.

A case most similar to the present matter is reported in Schepps Grocer Supply, Inc. v. Ranger Ins. Co., 545 S.W.2d 13 (Tex.Civ.App.1976). In Schepps, Ranger’s policy provided no coverage unless the named pilot possessed a multi-engine rating. At the time of the crash the named pilot had only a student’s rating. The insured argued the pilot’s lack of a multi-engine rating had no causal connection with the occurrence because, so an instructor testified, the pilot possessed the necessary skills to pass the FAA test for a multi-engine rating and the only reason the pilot did not possess such a rating was his inability to locate an FAA examiner to administer the test. The court rejected the argument and held proof of causal connection was unnecessary. “Ranger is entitled to require that [the named pilot] meet the qualifications in the policy before liability attaches. ... To construe these policy provisions as [the insured] would have us do would be to ignore the clause ‘providing he obtains a multi-engine rating,’ and, in effect, would make a new contract between the parties.” (Id. 16).

In this case the trial court’s finding relative to causal connection would indicate this factor was material to its ultimate decision, otherwise the finding would have been an unlikely exercise in superfluity. We hold that proof of causal connection between McDowell’s certification and rating as a student pilot and the casualty was unnecessary and that Gulf was entitled to extend coverage only while McDowell was holding the proper certificate and rating as required by FAA for the flight involved (Pilot Clause), and was entitled to exclude coverage unless the flight undertaken by a student pilot was with the specific advance approval of and under the supervision and control of an FAA certified commercial instructor pilot [Exclusion 6(d)].

What we have said and hold makes it unnecessary for us to rule and consider Gulf’s remaining points relied on except as they may relate to Aetna’s appeal which we consider next. As indicated by the foregoing, it is our opinion that the court nisi erred, in effect, by holding that Gulf’s policy extended coverage (Pilot’s Clause) to the flight involved or was effective [Exclusion 6(d)] in spite of the admitted and found facts that the flight was not made with the specific advance approval of nor under the control of an FAA certificated commercial instructor pilot. Consequently, as respects Gulf’s appeal, the cause is reversed and remanded for entry of judgment in accordance with the views herein expressed.

Aetna’s Appeal

In “Section 1 — Declarations” of Aetna’s policy, is provided excess indemnity coverages of $1,000,000 Each Occurrence, $1,000,-000 Aggregate Annual and $10,000 Retained Limit. The Schedule of Underlying Insurance, inter alia, lists: Description— Aircraft Liability; Insurer — Gulf Ins. Co.; Limits of Liability or Amount of Insurance —$1,000,000.

Other portions of Aetna’s policy pertinent here are as follows:

“Section 2. Insuring Agreements 2.1 Coverage. The company will indemnify the insured for ultimate net loss in excess of the applicable underlying limit which the insured shall become legally obligated to pay as damages because of A. Personal Injury, B. Property Damage, ... to which this policy applies, caused by an occurrence anywhere in the world, .

“Section 5. Definitions ... 5.3 ‘applicable underlying limit’ means (a) the amount of the applicable limits of liability of the policies of Underlying Insurance as stated in Section 1, or the amount stated in Section 1 as the Retained Limit, whichever is the greater, less the amount or amounts, if any, by which any aggregate limit so stated has been reduced solely by payment of claims in respect of personal injury, property damage . . . which occurs while this policy is in force, or (b) if the insurance afforded by such policies of Underlying Insurance is inapplicable to the occurrence, the amount stated in Section 1 as the Retained Limit; provided that the limits of liability of any such policy of Underlying Insurance shall be deemed applicable irrespective of (1) any defense which the underlying insurer may assert because of the insured’s failure to comply with any condition of the policy subsequent to an occurrence, .

“Section 6. Conditions . . 6.12 Maintenance of Underlying Insurance. Insurance as afforded by each policy of Underlying Insurance described in Section 1 shall be maintained in full effect during the currency of this policy, except for any reduction of the aggregate limit or limits contained therein solely by payment of claims in respect of personal injury, property damage . . . which occurs while this policy is in force. Failure of the named insured to comply with the foregoing shall not invalidate this policy but in the event of such failure the company shall be obligated under this policy only to the extent that it would have been obligated had the named insured complied therewith.

* * * * * *

“6.13 Representations. By acceptance of this policy the named insured agrees that the statements in Section 1 and in any subsequent notice relating to Underlying Insurance, which are offered as an inducement to the company to issue and continue this policy, are its agreements and representations, that this policy is issued and continued in reliance upon the truth of such representations and that this policy embodies all agreements existing between the named insured and the company or any of its agents relating to this insurance.”

Aetna initially asserts that if Gulf could avoid its policy for misrepresentation (Condition 24 of Gulf’s policy) then Aetna could also avoid its policy for misrepresentation. However, as seen, supra, the trial court found that Gulf could not avoid its policy upon the alleged misrepresentation of McDowell’s pilot status and we believe it was correct in this respect.

To avoid a policy an insurer must prove either breach of warranty made a part of the contract or misrepresentation in the inducement for the contract. Piedmont & Arlington Life Insurance Go. v. Ewing, 92 U.S. 377, 23 L.Ed. 610, 611-612 (1876); Cohen v. Metropolitan Life Insurance Co., 444 S.W.2d 498, 504[3] (Mo.App.1969); Templeton v. Standard Life Ins. Co., 235 Mo. App. 424, 430, 140 S.W.2d 726, 729[4] (1940). To whatever extent the cases recognize a difference between warranty and mere representation arising from an application for insurance, these general features emerge: (1) a warranty is intended to and does become a part of the contract [Ettman v. Federal Life Ins. Co., 137 F.2d 121, 125[2] (8th Cir. 1943); American Fire & Indemnity Co. v. Lancaster, 286 F.Supp. 1011, 1014-1015[8-9] (E.D.Mo.1968), aff’d, 415 F.2d 1145 (8th Cir. 1969); Grand Lodge, United Brothers of Friendship, etc. v. Massachusetts Bonding & Ins. Co., 324 Mo. 938, 948, 25 S.W.2d 783, 787[7] (banc 1930)], and (2) neither materiality nor intention is a factor in a strict warranty case. Ettman, supra, 137 F.2d at 125-126[2]; Dixon v. Business Men’s Assurance Co. of America, 365 Mo. 580, 588, 285 S.W.2d 619, 625[5] (banc 1955); Miller v. Plains Insurance Co., 409 S.W.2d 770, 774 (Mo.App.1966). Misrepresentations, on the other hand, are often spoken of in terms of materiality. Miller, supra, 409 S.W.2d at 773[4]; Brinkoetter v. Pyramid Life Insurance Co., 377 S.W.2d 560, 563[4-6] (Mo.App.1964); Bearden v. Countryside Gasualty Co., 352 S.W.2d 701 (Mo. App. 1961); Toler v. Missouri Ins. Co., 243 S.W.2d 788 (Mo.App.1951). Gulf pleaded breach of warranty, but the alleged false statement does not appear anywhere in the policy. Condition 24 appears to exclude application statements absent from the policy and makes them a policy defense only if “the insured has . . . misrepresented any material fact.” Therefore, Gulf’s effort to avoid its policy, championed by Aet-na, appears to involve a claimed material misrepresentation.

Ignoring for the moment the issue of Handley’s agency, a misrepresentation depends not only upon falsity but upon what was known by the various parties. Generally, the knowledge of its agent is imputed to the insurer and if the agent is told the truth about a material matter by an innocent applicant, the insurer is bound by a false statement in the application. American Fire & Indem. Co. v. Lancaster, supra, 286 F.Supp. at 1014[5—7]; Voss v. American Mutual Liability Ins. Co., 341 S.W.2d 270, 278[8] (Mo.App.1960): Watkins v. Prudential Ins. Co. of America, 236 Mo. App. 118, 125-126,151 S.W.2d 462, 466[6, 7] (1941); Russell v. Southeast Missouri Mut. Fire Ins. Co., 146 S.W.2d 674, 677[3] (Mo. App.1940); Templeton v. Standard Life Ins. Co., supra, 235 Mo.App. at 430, 140 S.W.2d at 729[3]. The insurer may be bound not only when the agent knows the truth, but when he is in a position where he should know the truth from the circumstances. Winger v. General American Life Ins. Co., 345 S.W.2d 170,185[12] (Mo.1961); Western Cas. & Sur. Co. of Fort Scott v. Wunderlich, 447 S.W.2d 1, 4[1] (Mo.App.1969); White v. Citizens Ins. Co. of New Jersey, 355 S.W.2d 421, 424[3] (Mo.App.1962); Bledsoe v. Farm Bureau Mut. Ins. Co., 341 S.W.2d 626, 632[8-10] (Mo.App.1960); Loduca v. St. Paul Fire & Marine Ins. Co., 105 S.W.2d 1011, 1013[3] (Mo.App.1937). A similar result obtains if the agent fills out the application without questioning the applicant. Farmers Mutual Fire & Lightning Ass’n v. La Vallee, 501 S.W.2d 69, 74 (Mo.App.1973).

On the record the most that was shown was reliance and falsity. No evidence indicates McDowell ever saw or signed either application for Gulf’s policy or that McDowell told Handley he was a private pilot. Neither did Handley state the application comports with what he was told. Gulf at the minimum probably would have to show, assuming Handley was its agent, the false statement in the application was traceable to Macalco, and that was not done. “The knowledge of the agent with respect to the application and the questions and answers appearing and made thereon, as to whether such questions were in fact asked and such answers were in fact made by the insured or as to the truthfulness or untruthfulness thereof, is imputed to the [insurer].” Sappington v. Central Mut. Ins. Ass’n, 229 Mo.App. 222, 234, 77 S.W.2d 140, 147[8, 9] (1934).

The trial court held that Handley was agent for Gulf, not Macalco. Gulf challenged this by saying Handley was Macal-co’s agent, or, because he was on Macalco’s board of directors, he was a dual agent serving two masters. Obviously this challenge is made to avoid imputing to Gulf what Handley knew or should have known and to establish a connection between the application’s false statement and the insured. In Smith v. Ohio Millers’ Mutual Fire Ins. Co., 325 Mo. 51, 65, 26 S.W.2d 962, 968 (banc 1930), it was stated that the burden of proving dual agency was on the insurer, and on the first appeal in the same case [320 Mo. 146, 169, 6 S.W.2d 920, 928 (banc 1928)] the court observed that duality was a fact question “largely dependent on the intention of the parties.” Moreover, and contrary to Gulf’s suggestion, agency may not be necessarily exclusive as to one party or the other. “The same person may act for the different principals in separate matters in which their interests are not conflicting and his duties not inconsistent. . Whether in a particular case or particular matter one acts as agent for the company or for insured depends upon the intention of the parties, which is to be determined from the facts and circumstances of the case.” Meyers v. State Farm Life Insurance Co., 416 S.W.2d 10, 16[4-6] (Mo.App.1967).

The evidence is that Handley was a director of Macalco and a “licensed agent” for Gulf, that he handled most of Macalco’s insurance requirements, that someone at Macalco contacted him regarding airplane insurance, that he was authorized to sign the first application and that the renewal application was processed through his office. Gulf has shown neither conflicts in Handley’s roles nor that his insurance functions were subordinate or related to his directorship. It is not uncommon for an individual or business concern to place the handling of his or its insurance needs with a friend or associate in some undertaking. Such friendship and association alone does not establish an overriding self-interest on the part of the agent obviating complete faithfulness to the insurer. There was no evidence that Handley was a Macalco stockholder or otherwise had a pecuniary interest in the corporation which would result in an interest adverse to Gulf. Cf. Riverside Development Co. v. Hartford Fire Ins. Co., 105 Miss. 184, 62 So. 169 (1913); 16 Appleman, Insurance Law & Practice § 8737, at p. 323.

We opine, therefore, the conclusion of the trial court that Handley was Gulf’s agent and that Gulf could not avoid the policy because of the misrepresentation contained in the application had substantial evidence in support thereof.

What has just been said takes care of Aetna’s first point on appeal and its anomalous position in arguing Gulf’s policy was void ab initio. As seen, supra, we have not held that Gulf’s policy was never effective, only that it was suspended during the time the aircraft was being piloted by a person not properly certificated and rated for the flight involved or was being flown by a student pilot when the flight was made without the specific advance approval of and under the supervision and control of an FAA certificated commercial instructor pilot.

The second issue in Aetna’s appeal is whether the trial court erred in concluding that if on appeal Gulf’s policy was found inapplicable to the occurrence (which we have done) the retained limit of $10,000 would govern Aetna’s liability.

The apparent distinction between Aetna’s Definition 5.3 and Condition 6.12 is underlying insurance “inapplicable to the occurrence” as opposed to that not “maintained in full effect.” To paraphrase, the interlocking provisions are as follows: Aetna will indemnify Macalco for damages it is obligated to pay above $1,000,000, or above $10,000 if Gulf’s coverage is inapplicable to the losses resulting from the crash; but if Gulf’s policy has not been maintained, then the $1,000,000 retention applies nonetheless. The latter condition would apply in case of a lapse or some situation arising between the time of obtaining Aetna’s umbrella policy and the time of loss resulting in diminution or elimination of the effect Gulf’s underlying insurance had at the earlier time.

As Gulf’s appeal has been disposed of on the basis that its policy was merely suspended at the time of the occurrence and not because it was void ab initio, then it follows that there was never any change in the extent or character of coverage under Gulf’s policy during the period in question. The underlying coverage was merely “inapplicable to the occurrence.” McDowell was not the only named pilot in Gulf’s policy, and he could have flown within the zone of protection by obtaining a private certification or by flying with the specific advance approval of and under the supervision and control of an FAA certificated commercial instructor pilot. Therefore, Macalco had underlying insurance, and maintained that same insurance, despite the fact it did not cover the particular occurrence in question.

Albeit we agree with the trial court’s ruling that the $10,000 retained limit would govern Aetna’s liability if Gulf’s policy was found inapplicable upon appeal, it is also necessary that we remand this portion of the appeal so that proper judgment as it affects both Gulf and Aetna can be entered in the cause consistent with the views and ruling herein expressed and contained.

All concur.

      . The x appearing in the box after (a) and the names following thereafter were added to the printed form by typewriter.

      . Cancellation was provided for in the policy under Condition 23. That condition states:
      . . This policy may be canceled by the company ... by mailing to the named insured . . . written notice stating when not less than ten days thereafter such cancelation shall be effective. ... If the company . . . cancel[s], earned premium shall be computed pro rata. Premium adjustment may be made either at the time cancelation is effected or as soon as practicable after cancelation becomes effective, but payment or tender of unearned premium is not a condition of cancelation. . . . ”


author: DOWD, Judge.

text:
    In re MARRIAGE OF Claire FRANKEL, Petitioner-Appellant, and Harvey Frankel, Respondent.
    No. 37310.
    Missouri Court of Appeals, St. Louis District, Division 1.
    April 12, 1977.
    Motion for Rehearing or Transfer Denied May 6, 1977.
    Application to Transfer Denied June 14, 1977.

      Newmark & Baris, Iri B. Baris, St. Louis, for petitioner-appellant.
    Theodore S. Martin, St. Louis, Hersh-man & Leicher, New York City, for respondent.
   DOWD, Judge.

Petitioner Claire Frankel brings this appeal from an order decreeing the dissolution of her marriage to respondent Harvey Frankel. She contends that the trial court erred in denying her applications for a continuance and for a change of judge, which were not filed until the day of the hearing, and in failing to enter an award of attorney’s fees in addition to the amount awarded her at the prior pendente lite hearing. We find no error and affirm the judgment in all respects.

The cause was originally set for trial on May 5, 1975 but was continued to June 2, 1975 because petitioner’s lawyer was in trial in the federal court.

Neither petitioner nor her attorney appeared in court on June 2, however, and respondent’s attorney informed the court that counsel for petitioner was concluding a trial in federal court and would be available the following day. On June 3, the court proceeded to trial in another cause but informed counsel for both parties that the instant cause would be tried at 9:30 a. m. on June 4. Counsel for petitioner telephoned his client, who was in suburban New York City, during the afternoon of June 3 to inform her of this, but was unable to reach her. He then contacted her New York attorney and asked him to inform petitioner of the setting so that she could fly to St. Louis. That evening petitioner’s St. Louis counsel was made aware of the fact that petitioner was ill and unable to travel to St. Louis for at least two weeks. He instructed the New York attorney to forward a telegram from petitioner’s physician to the trial judge immediately.

When court convened on June 4, however, no such telegram had surfaced. The trial judge was made aware of the situation and instructed counsel to appear that afternoon. At approximately 3:00 p. m. the court received a telegram from petitioner herself, stating that she was ill and unable to travel, but the promised telegram from her physician never did arrive. There was a doctor’s strike in New York at that time. The court expressed concern at the fact that petitioner had remained in New York on June 2, prior to her alleged illness, despite the original setting for June 2. After extended argument, the court denied petitioner’s applications for a continuance and for change of judge which had been filed that day. The cause proceeded to trial, with counsel’s testimony relative to his professional services and fees being the only evidence presented by petitioner.

The granting or denial of an application for a continuance, even one premised upon the illness of a party, rests within the sound discretion of the trial court. That discretion must be judicial in nature, but on appeal every intendment is in favor of the trial court’s ruling. Blessing v. Blessing, 539 S.W.2d 699, 702-703[3-6] (Mo.App.1976). “Denial of a continuance is rarely reversible error. The trial court has the right to control the docket and the progress of litigation. The grant or denial of a continuance is therefore discretionary. State ex rel. Schaper v. Stussie, 487 S.W.2d 49 (Mo.App.1972).” Blessing v. Blessing, supra at 702. We have examined the record and find no abuse of discretion under the circumstances of this case.

The application for change of judge was not timely filed and therefore the denial of this application was also proper. Rule 51.05. The right to disqualify a judge is a privilege, and strict compliance with the provisions of the rule is essential. In re Estate of Barks, 488 S.W.2d 928, 930[1] (Mo.App.1972). We recognize that allegations of bias and prejudice by the trial judge toward a litigant are certainly still cognizable on appeal if the litigant fails to file a timely application for change of judge. See, e. g., Gates v. State, 515 S.W.2d 762, 763 (Mo.App.1974); Crimi v. Crimi, 479 S.W.2d 195, 197-198 (Mo.App.1972); Browder v. Milla, 296 S.W.2d 502, 507-508 (Mo.App.1956). We have, therefore, examined the record for evidence of any bias or prejudice toward petitioner by the trial judge. The record fails to establish bias and prejudice by the judge. Petitioner’s second point is denied.

Finally, we find no abuse of discretion in failing to award additional attorney’s fees to petitioner. She had already received a $1,600.00 attorney’s fee award at a prior pendente lite hearing, and respondent was not in a financial position to shoulder further burdens. Allocation of attorney’s fees by the court is a matter entrusted to the court’s discretion, and we decline to disturb the exercise of that discretion in this ease. Powers v. Powers, 544 S.W.2d 339, 340[2] (Mo.App.1976); § 452.355 RSMo.

The judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: BILLINGS, Chief Judge.

text:
    Lee Edward LETT, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10490.
    Missouri Court of Appeals, Springfield District.
    April 22, 1977.
    Motions for Rehearing or Transfer Denied May 13, 1977.
    Michael Baker, Springfield, for movant-appellant.
    John Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.
   BILLINGS, Chief Judge.

Appellant Lee Edward Lett has appealed from the order of the Circuit Court of Greene County denying him postconviction relief from concurrent prison sentences he is serving for burglary and stealing. We affirm.

Appellant entered pleas of guilty to the two crimes on May 30, 1975. Sentencing was deferred until June 6, 1975, at which time a seven year sentence for burglary and a five year sentence for stealing were imposed. The court ordered the sentences to be served concurrently and then suspended the sentences conditioned upon appellant’s acceptance into a drug rehabilitation program and future good behavior. Appellant was placed on probation for five years.

On February 26, 1976, an evidentiary hearing was conducted by the trial court on whether appellant’s probation should be revoked. The court, on March 2, 1976, filed findings of fact and reasons for revoking probation, ordered appellant’s probation revoked, and ordered the sentences executed.

Appellant’s Rule 27.26 motion was filed July 7,1976, alleging as grounds the following:

“I. The plea of guilty was involuntary for the reasons that movant had been threatened by the prosecutor with 40 years if he did not plead guilty to the charges;
II. That the movant willingly plead guilty because his will was overcome by the threats of the prosecuting attorney and the failure of the lawyer to aid him;
III. Movant believed in his mind that if he did not cooperate that he would receive 40 years and this made the movant scared so that the movant pleaded guilty.
IY. The counsel for movant told mov-ant to tell the Court that no deals or threats had been made so that movant would be able to receive the 7 and 5 years.
V.The movant was denied effective assistance of counsel for his defense for the reasons that counsel led the movant into the courtroom to falsely mislead the court knowing that movant had been threatened with 40 years by the prosecuting attorney.
VI.Counsels representation reduced the plea of guilty to being involuntary for the reasons that mov-ant had been threatened and counsel stood moot [sic] and allowed the Court to go uncorrected and placed movant to his doom.
VII.Movant was denied effective assistance of counsel for the reasons that counsel stood moot [sic] at the time sentence was imposed and after recovation [sic], and did not inform the court that movant had a serious drug problem in which counsel could have pleaded for hospitalization of continued nature.
VIII.Movant was deprived of his right to probation and was driven into his acts and in violation of the Rules by the malicious and capricious acts of his probation officer who harrassed [sic] and intimidated movant to the point where movant was forced to violate the conditions of probation and did inform movant’s wife that he wished movant was dead, all in a gise [sic] to cause movant to violate the conditions of his probation.
b. Movant incorporates allegations I through VII as the reasons why he should be allowed to withdraw his plea of guilty, or to receive a reduction in sentence.”

On July 26, 1976, the trial court filed a memorandum and order denying appellant’s motion without an evidentiary hearing. That order reads as follows:

“The record in that case shows that on May 30,1975, Movant was present in person in this Court with his attorney Winston Davis, and entered a plea of guilty to burglary in the second degree and a plea of guilty to stealing in conjunction with the burglary. The Court found that Movant’s pleas of guilty were made voluntarily and with full understanding of the nature of the charges as required by Rule 25.04.

“On June 6, 1975, in the same case, Mov-ant was present in this Court in person and with his attorney Winston Davis and was granted legal allocution, after which Mov-ant was sentenced to the Division of Corrections for a term of seven years for the burglary and a term of five years for the stealing, said sentences to run concurrently. Execution of both sentences was suspended and Movant was placed on probation for a period of five years under supervision of the Missouri Board of Probation and Parole.

“Thereafter, on March 2, 1976, following an evidentiary hearing (held February 26, 1976) this Court found that Movant had violated certain terms and conditions of his probation. This Court filed written Findings of Fact and Reasons for Revoking Probation, ordered Movant’s probation revoked and ordered that the sentences imposed June 6, 1975, be executed. Movant was thereafter delivered to the Division of Corrections to serve said sentences.

“In his motion to vacate, Movant first contends his pleas of guilty were involuntary because he had been threatened by the prosecutor ‘with 40 years if he did not plead guilty’, and that Movant believed he would receive forty years if he did not plead guilty. Movant alleges his lawyer told him to tell the Court no ‘deals’ or ‘threats’ had been made, otherwise Movant would receive the 40 years. Movant says he plead guilty because of these threats.

“This contention is refuted by the transcript of the proceedings at which the guilty pleas were entered. After reading the charge of burglary in the second degree to Movant, the Court advised Movant as follows: ‘The maximum punishment that could be inflicted on that charge is ten years in the penitentiary. Do you understand that?’

“Movant replied: ‘Yes sir.’

“It is clear from the transcript that Mov-ant could not have believed he would receive forty years because he understood that the maximum punishment for the offenses was ten years and five years, respectively.

“Movant next contends that he was denied effective assistance of counsel because counsel ‘stood moot’ at the time of sentencing and did not inform the Court that Mov-ant had a serious drug problem, ‘in which counsel could have pleaded for hospitalization.’

“The Court’s minutes of June 6, 1975, show that the execution of the sentences was suspended conditioned on the acceptance of Movant into a drug rehabilitation program approved by the Court, and future good behavior. The order of probation contains a special condition that Movant was to go directly to Mid-Missouri Mental Health Center, Columbia, Missouri, for a period of 28 days.

“Thus, it is abundantly clear that the Court was well aware of Movant’s alleged ‘drug problems’.

“Movant’s final contention is that he was ‘driven into’ his probation violations by the acts of his probation officer.

“As earlier noted, on February 26, 1976, an evidentiary hearing was held on the issue of whether defendant was in violation of the terms and conditions of his probation. At that time, probation officer Edward L. St. Clair was present, as was Movant. Movant was afforded the right of confrontation of officer St. Clair and Movant was afforded the right to offer evidence in his own behalf, and Movant did offer such evidence. The same contention was made at the revocation hearing and was resolved adversely to Movant. Moreover, matters relating to the legality of revocation of probation are not matters which come within the scope of a proceeding under Rule 27.26. Green v. State (Mo. banc 1973) 494 S.W.2d 356.

“The Court finds that all of Movant’s contentions with respect to the circumstances of his guilty pleas are absolutely refuted by the transcript of the proceedings at the time the pleas were entered, and by the Court’s minutes and records.

“The Court therefore finds that Movant’s Motion to Vacate does not raise questions of law or issues of fact, and therefore no evidentiary hearing is required. Bolden v. State (St.L.App.1975) 530 S.W.2d 505.

“Because no evidentiary hearing is required, Movant is not entitled to appointment of counsel. Dulsen v. State (Mo.1974) 504 S.W.2d 3.

“It is ORDERED that Movant’s Motion to vacate and set aside his conviction and sentences in Case No. 75884-2 be, and the same is, hereby DENIED.”

In this appeal appellant contends the lower court erred in summarily ruling his motion and avers an evidentiary hearing was required. He also claims the record does not support the trial court’s finding his guilty pleas were voluntary and not coerced. Last, he says it was error for the court to summarily reject his allegation that his parole officer had driven him to probation violations.

Our Supreme Court en banc has stated the rule of review for the denial of an evidentiary hearing as follows:

“. . .A 27.26 movant, in order to be entitled to an evidentiary hearing, must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing.” Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841.

Here, even if it be assumed appellant’s motion pleads facts, which, if true, would entitle him to review, the transcript of appellant’s guilty pleas refutes his claims. It would serve no useful purpose to set out verbatim the court’s interrogation of the appellant and his answers thereto. It is sufficient to note the following: the appellant advised the court he desired to withdraw his earlier not guilty pleas; the information was re-read and appellant advised of the maximum sentences of the two crimes; appellant had not been threatened or told to plead guilty; no promises or inducements had been made; no one had told appellant he would be granted suspended sentences, probation, or parole if he would plead guilty; he had no complaints about his attorney’s representation and pleaded guilty because he in fact committed the crimes charged in the information.

The rule of Smith v. State, supra, is applicable and the trial court properly denied appellant’s motion without an evidentiary hearing.

Appellant’s reliance on Burgin v. State, 522 S.W.2d 159 (Mo.App.1975) is misplaced. Burgin pleaded he had been promised a two year sentence upon his guilty plea, received a fifteen year sentence, and had been instructed by his counsel to lie to the court on the question of promises inducing the plea. This case is not one of an alleged broken plea bargain and the misleading of a defendant by a “promise.”

Appellant’s averments concerning the revocation of his probation are beyond the scope of a Rule 27.26 proceeding. Green v. State, 494 S.W.2d 356 (Mo. banc 1973); Whitlock v. State, 538 S.W.2d 60 (Mo.App.1976).

The judgment is affirmed.

All concur.

      . See Hogshooter v. State, 514 S.W.2d 109 (Mo. App.1974), for evolution of the Smith rule.