*1 respectively. necessary Ocean not Preserving It is us Baer Extract & Co. pass Corp., Mo.App., question on the not the of whether or Accident & Guarantee estoppel 648, 652, quashed grounds equitable on other doctrines of waiver or apply apparent & Guarantee for it is not rel. Accident that the facts do Ocean ex Hostetter, necessary 108 S.W. disclose that Corp. all the elements 341 Mo. present. apparently Nor 2d cases did the Industrial Commission Other Missouri 17. rest finding indicate its in- against outstate award well reasoned company any not available surance on estoppel and waiver are basis waiver estoppel. which coverage include broaden the coverage clearly not within Respondents ques- suggested other coverage from expressly excluded
policy or tions, policy such as whether the insurance gen the rule is In these terms. its issued to Mr. Conner in his connection with do estoppel waiver expressed erally Illinois partnership Electrical cov- likewise action, and a cause give not themselves ering only against claims him under the preserve estoppel purpose is to Act, Illinois Compensation Workmen’s Ill. create acquired but not to rights previously Rev.St., c. 138.1 et seq., apply. What § Berry v. Massachusetts new ones. See disposes have said suggestions. of these Co., 203 Bonding & Insurance judgment is, of the circuit court ac- 751; v. Con Linenschmidt cordingly, and the cause remanded reversed Co., 204 S.W. Casualty tinental with directions trial court reverse 296; A. F. Rosenberg v. General the award of the Commission and direct 1009; Hun Co., Mo.App., 246 S.W. & L. A. the Commission to enter a new dis- award Insurance Life ter v. Standard Jefferson charging the insurer and to enter its award 78; Peters v. Co., 241 N.C. against employers only, all in accordance Cir., Co., Insurance American Great with the opinion. views in this Health 773; Benefit v. Mutual Kinard F.2d F.Supp. Ass’n, D.C., 108 All & Accident Practice, Law and Appleman, Insurance Insur Annotation: Sections Lia Annotation:
ance, 113 A.L.R. Insurance-Waiver-Estoppel, 38 A.L.R.
bility
2d 1148. employers knew In the after withdrawing as counsel their insurer STATE of Missouri, Respondent, employers through liability denying and was granted newly counsel were selected Ni PILKINTON Mrs. Catherine they any make record opportunity to full Pilkinton, Appellants. against claim hearing on the wished No. 7625. they agreed that the then Mr. Conner case would also be in that made as record Springfield Appeals. Court of on also in the case made considered Missouri. In effect Conner. Mrs. against claim Feb. 1958. the two claims a consolidation agreed They separately do filed. had Rehearing or to Motions Transfer Over- mismanagement any insurer ruled March them representation of its faith or bad obviously, insurer’s in- point, to that employers with those coincided terests claimants’ case the merits resisting on employer insurer against them filed
sonable cross-examination of the state’s
permitted”
witnesses was not
[cf.
Burns, Mo.,
119, 120-121],
*3
that “the court refused defendants’ instruc
request
tions and
for comment on the evi
se;
Pilkinton, pro
Ni
dence.”
Francies, Mo.,
Cf. State v.
S.W.2d
15(19);
Tebbe,
State v.
Mo.
respond-
Plains, for
Moore, West
R. D.
App.,
However,
174(3,4).
S.W.2d
ent.
byit
no means
ap
follows that defendants’
peal
courts,
should be
For
dismissed.
habitually
their
scrupulous
STONE,
Judge.
and tradi
Presiding
tionally
regard
tender
human
for
life
(Ni)
Defendants,
Catherine
Mrs.
Ni and
liberty,
reserve
imposition
only judgment en-
appeal
the
Pilkinton,
from
civil
penalty
cases the drastic
of dismissal
finding them
jury
upon the
verdict
tered
of
appeal provided
the
1.15; and,
by Rule
compul-
the so-called
violation of
guilty of
where a brief in a criminal case is so de
[Chapter
attendance law
sory
school
fective
insufficient that
wholly
it is
punishment of each de-
assessing the
disregarded,
appellate
the
court still ex
164.060.
fine of
Section
$10.
fendant
pursuant
amines
to Rule 28.02 what for
to
herein are
statutory references
(All
merly was termed
proper”
“the record
1949, V.A.M.S.)
RSMo
Rutledge, Mo.,
[State
n difficult
Taylor
Lillie
age
prepare
satisfying
a brief
years,
having
said
1.08,although
minor
we
child
of Rule
are
under
requirements
* * care, custody
control,
sympathetically
to observe
that
impelled
and having
by
bespeaks
warned
eloquently
purpose
provided
notice as
by
their brief
law
* *
indefatigable
industry
Section
ful, unflagging,
164.010 to 165.090
* * *, fail, neglect
of our brethren of
bar
and refuse
keep
said
regular
preparation
child
daily
emulate in
might well
attendance of
Nevertheless,
school.” The
when defendants’
information
briefs.
contained
no
that
detailed
“provide
and ex
did not
is measured
brief
salutary, provisions
such child at home
plain and
with such regular
albeit
acting,
daily
necessarily
1.08,
during must
instruction
usual
hold that
hours
Rule
shall
presented
appellate
substantially equivalent
be
review
nothing is
at least
brief,
given
instruction
to the
“points” stated
defendants’
the children
by the
of like
contrary
age
“the verdict
at said
school in
to-wit, that
locality.”
164.010;
Garrett,
evidence”
Section
now
amended
Laws of
[cf.
-,
1957, p.
442(2)],
S.B.
No.
“a rea-
Mo.,
(of
what
visions
information
Section
164.010) relating
proper
descriptive
formerly
record
was termed
64, 69,
offense” and
Boyer,
negatived
need not
[State
Harris,
575, 579;
information,
provisions
but
con-
and, in
1026, 1028(5)];
exception
stitute
nature
“de-
upon us
enjoined
performance
proved
pleaded
fensive matter”
547.270], by
Recognizing
Rule 28.02
also
defendants.
con-
that this
[see
tention
sufficiency
contrary
plain holding
of the information
into
questions
Cheney, Mo.App.,
one of
an offense is
*4
v.
inquire
attorney
State
“the
[compare
prosecuting
that
which we
asserts
should
supra,
Garrett,
Ap-
court (Kansas City
Rutledge, supra;
v.
learned
Court
State
peals)
rendering
State
misconstrued the
in
444—consult also
cit.
S.W.2d loc.
opinion”
that
Couch,
78,
“a
examina-
79,
S.W.2d
fuller
Mo.
v.
that
409,
are,
precedents,
they
tion of
407,
such
Young,
Mo.
as
greatly
persuasive
detracts from the
force
404, 406(1)],
regardless
133 S.W.2d
Cheney case”; and,
of the
assigned.
on the
has been
such error
whether
only
697, of
693,
[People
Levisen,
one
case
Winterbauer, 318 Mo.
574,
213,
1364],
Ill.
Wolfner,
A.L.R.2d
1071,
1073(4); State
300 S.W.
that, although
it
589,
suggested
is
similar stat-
590(2).
1068, 1074, 2
Mo.
common,”
utory provisions
they
fairly
“are
Mo.
And,
Eslinger,
see State
generally regarded
“are
other
as
in
states
425(2,3);
238 S.W.2d
requiring the defendant
to raise the issue
524, 525, 79 S.W.2d
Horn, 336 Mo.
But
defense.”
as a
Mo.,
Lettrell,
1045(1); State
Aristotle,
as, from
it
has
time
;
Barr,
4)
557(3,
said
swallow
that “one
does not make
477, 478(1), 479(3,4).
spring” (or,
“Treatise”
as Northbrooke’s
put
prouveth
it
"one swallowe
holding in State
recent
Under the
neare”),
that summer is
we doubt that
(hand
Cheney, Mo.App., 305 S.W.2d
jurisdiction,
foreign
lone citation from a
October, 1957,
trial of the
after
ed down
whose
school attendance stat-
clear that the informa
case), it is
comparable
fairly
is not
ute
ours
was insufficient to
review
tion
language
structure,
justifies
and sentence
would
164.010. It
under Section
an offense
any
easy
sweeping generaliza-
such
plow
super-arrogance
for us
be a work
n
tion.
so well
freshly
so
again
ground
case.
in that
broken
course,
recognize
that
Of
“
judgment
con-
It
follows
exception
proviso
is found
‘where the
at bar should be reversed
in the case
viction
in a
and distinct clause or
so
It is
ordered.
cause remanded.
statute,
disconnected from
that which
* * *
offense,
no
nega
describes
necessary in
averment
is
tive
the indict
RUARK, JJ.,
McDOWELL
ment,
the defendant
and if
within the
exception,
he
terms
must show it in
Rehearing or to Transfer
Motions for
On
”
Brown,
his defense.’
State v. Zam
Judge.
STONE, Presiding
mar, Mo.,
441, 444. However,
equally
well-settled,
true and
as
and the
was
the state
Both
pointed
appropriately
Cheney
out in the
pungent
rehearing
motions
filed
893(1)],
S.W.2d loc. cit.
alternative,
“‘ex
transfer
this
cause
pleaded
primary
ceptions
must be
Court. The
conten-
indictment
parts
pro-
motion is
when
occur
of the statutory
state’s
that “the
tion
offense,
where,
definition of
in all
1128(4),
City
W.
of St. Louis v.
exceptions
omitted,
if
Stubley, Mo.App.,
such
the offense
411(9).
”
accurately
Among
cannot be
described.’
the numerous Missouri cases in which this
par
with which
principle
application,
latter
has found
see
charged
ents are
by
(the
Section 164.010
particularly Markley
State,
children to attend the 69 Vt. But, larly, having 235-236(4). A. “with neither the final an further alysis, reported jurisdic caused the children to attend a school cases from other ** * equivalent tions nor received limited value because of differ school, statutory ences language, structure, instruction elsewhere con than trary provisions” quoted meaning and, purpose; New unless read Jersey 390]; (h) discernment, statute loc. cit. A.2d discrimination and isolat [72 Commonwealth, ed Rice v. Va. statements in 49 S.E. such cases be mis prosecution leading. Upon 3 A.L.R.2d careful reconsideration of Virginia case, school escape attendance we are unable to (likewise imposing statute the conclusion information, prin negative failed to alternative) in which the state’s alternative cipal loc. for providing substantially cit. 347- equivalent *6 properly required jury home, the to find that struction at did not an of defendants had failed fense under that, to send children Section 164.010and there public fore, a school, private, “to a or to denom state’s or, for rehearing motion parochial school, inational alternative, or or have such to transfer should be over ruled. taught by a tutor or * ** home,” teacher in a thus nega applica In construction and tiving all quoted alternatives Vir upon bearing of statutes school and ginia tion statute loc. cit. 343]; g., matters State ex inf. educational (c) Meeks, [e. Ky. 690, Commonwealth v. 192 Jones, v. ex Webb Carnahan rel. Mo. 234 S.W. prosecution a under the Ken tucky 52(4); Emery v. Holt compulsory school attendance statute County, in which the fatally held application (3)] as construction defective for negative failure to the statu Humphries,
tory g., other statutes exceptions. [e. 350, 352(2); Mo. hand, burden obviously Machine, On the other Pinball One Mo. “Jack Jill” upon defendant, 859(5, 6)], should and does rest App., ap our respect predicated upon to defense a pellate again courts have observed time and exception in Illinois compulsory legislative policy, wisdom as re statutory school attendance statute Ill.Rev. enact [now flected Stat.1957, chap. 122, par. ments, Assembly which is is for the General and is 26-1] a pale judicial definition of beyond not and without the e., Bluntly (i. put, failure to cause a offense child “to and review. quiry function school”) declare, public apply but plainly attend is and enforce the law as distinctly proviso segregated apart it, by judicial legislate set find we not fiat. sub-paragraph. People in a numbered on Inf. of Dalton Miles Laborato Levisen, ries, supra, And, loc. cit. Willman, Mo.App., complaint charging the Cali Lemasters S.W. violation 580, 590(17, 18). Assembly The General school attendance
fornia presumed negative exceptions not to have intended what sep need stated in it has and we ancient directly unambiguously, sup stated Athens were excused from construction, porting parents not, guise neglected give who under the had them early training. Encyclopaedia and definite to or take from the clear Bri add Compare tannica (1956), “Solon,” terms of Section 164.010. loc. cit. 956. Groat, supra, cit. 168 S.W. loc. De upon We extol or elaborate need not Long, S.W. manifold derived from educa benefits be Wurdack, 691(2). Hogue also See schools, tion in our not the least of Mo.App., 496(7), and opportunity for free associa is the there cited. tion other children on a common level with society opportunity from all classes —an rehearing motion for desirable, unreasonably if not believed to Defendants’ is, in sub transfer in absolutely essential, preparation stance, complaint that we have petulant proper discharge good of the duties of rule” what defend “will not “ignored” and citizenship. Hoyt, 84 N.H. See State question,” principal to be “the ants conceive O’Brien, supra, 146 A. Knox v. insufficiency of to-wit, sufficiency or “the Certainly, A.2d loc. cit. 392. we would not transportation the school afforded hap commending misunderstood as “a “inex to be question asserted board” —a hazard or hit-or-miss kind of instruction” right tricably up linked with bound [Stephens supra, Bongart, pro parents safeguard encouraging pre A. loc. cit. “a prior in our As shown tect their children.” by parents text of instruction” who seek to- appeal; opinion, raised on no such issue was responsibilities. People evade their but, presented had been even issue Levisen, supra, But, if 90 N.E.2d loc. cit. 215. here, pre it after our not reach could cautionary philosophical comment and mus information liminary determination aside, ing plaint concerning defendants’ How offense. charge an was insufficient transportation bus available for their child comments con ever, of defendants’ in view presents present no issue for determination *7 duties, and in rights and cerning prejudged. However, and is not defend misinterpreted holding be order may ants reading interested in In re amiss for us misconstrued, not be Conlin, Child.Ct, 130 N.Y.S.2d par obligation of all basic emphasize the place which a father’s failure to his children opportunity children afford ents to school was not excused refusal of the char obligation proper education —an transport Board of Education to them. supreme one of Blackstone as acterized The state’s and defendants’ mo- as well as society general importance to tions for rehearing Jonitz, family [Jonitz N.J. for transfer of this cause to the breach 787], whose 544, A.2d Super. Court of Missouri are overruled. grave matter of and is a should of Solon today it was in the time concern the male B.C.) when
(circa RUARK, JJ., McDOWELL and