dissenting.
I agree with the majority that Research may not appeal from an adverse ruling on its motion for summary judgment. Additionally however, Research did not serve its motion for summary judgment “at least 10 days before the time fixed for the hearing” as provided in paragraph (c) of Rule 74.04. The first indication Williams had of a summary judgment was on the day of trial. The purpose of the 10 day service requirement is to afford the adverse party an opportunity to defend against the motion and show a genuine fact issue remained. State ex rel. Boyer v. Stussie, 592 S.W.2d 269, 272 (Mo.App.1979). In Pennell v. Polen, 611 S.W.2d 323 (Mo.App.1981), this court, while not deciding whether Rule 74.-04(c) “preclusively requires” the 10 day notice before entry of summary judgment, states,
“We do not say that a summary judgment made and entered on the very day of trial, without other notice to the adversary, or acquiescence, undermines the probity of the procedure and prejudices fairness.” (footnote omitted). 611 S.W.2d at 324.
Since the summary judgment motion presented on the day of trial without 10 day notice, did not comply with 74.04(c), it was properly overruled. See also, Associates Discount Corporation of Iowa v. Fitzwater, 518 S.W.2d 474, 477 (Mo.App.1974). Compare Aman Collection Service, Inc. v. Burgess, 612 S.W.2d 405, 409 (Mo.App.1981).
The question of the conclusive establishment of matters deemed admitted (reasonableness of charges) for failure to answer *673under 59.01 should be ruled favorably to Williams and cause the trial court judgment to be affirmed.
An ultimate issue, an opinion or a legal conclusion, all involved here, may be deemed admitted because of a default in answering or failure to object to a request for admissions under Rule 59.01. Linde v. Kilbourne, 543 S.W.2d 543, 547 (Mo.App.1976). The sole issue in this case was the reasonableness of Research’s charges. Despite Williams lack of counsel or legal expertise he made it clear at every step of the trials resulting favorably to him (before the Associate Circuit Judge and in circuit court) that he disputed the fairness of the charges. Whether paid in whole or in part by insurance the issue was whether the charges were excessive.
The hospital has the burden of proof on the reasonableness of its charges. The majority here says it sustained that burden by introduction of the bill, testimony of the witness and the admissions.
If the majority’s view is correct and the failure to answer requests conclusively establishes the ultimate issue it was unnecessary for Research to produce any evidence because of the operation of the rule. Where I depart from the majority is on the matter of whether the rule should here be activated and the plaintiff’s case ultimately established without having offered the non-answered request into evidence and without having made a presentation in evidence as to the date the request was made and testimony that no answer or request for late filing or objection had been received by plaintiff nor in the court’s file. Compare Avant Incorporated v. Polaroid Corp., 441 F.Supp. 898, 900 (D.Mass.1977). The other alternative would have been to ask the court to take judicial notice of the request for admission and the failure to answer and requesting the matter be admitted.
To get the benefit of the rule and have the only contested issue deemed admitted and conclusively established, the party seeking such benefit must do something positive to put the matter in evidence, even in a court tried case. The fact that the hospital here did not introduce the request into evidence and made no record supporting the failure of Williams to answer the request means it should not get the benefit of the operation of the rule. The fact that the matter was not offered into evidence and that Research went ahead and presented evidence on the issue belies the fact that it was relying on having its case made by operation of Rule 59.01. This relatively slight burden placed on a moving party is not much to ask in view of the immense benefit it reaps. Since this pivotal issue is and was contested it should be borne in mind “[t]he rule is not self executing and if one would take advantage of its provision, all facts necessary to invoke the consequences must be made in some way to appear.” Gilbert v. General Motors Corp., 133 F.2d 997, 1003 (2nd Cir.1943). See also W.J. Warren et al. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America et al., 544 F.2d 334, 339-10 (8th Cir.1976); Pleasant Hill Bank v. United States, 60 F.R.D. 1, 3 (8th Cir.1973).1
Without having the benefit of the admission the hospital’s burden cannot be said to have been sustained by either the bill or the testimony presented. The bill itself proves absolutely nothing as to whether the price was reasonable. It is an 18 page printout of charges including supplies and tests that were repeated many times during the de-ceaseds five day stay in the hospital (most of one day was in the emergency room).
The only testimony of the sole witness, comprising only 4½ pages of the transcript, sheds no light on the issue of reasonableness. The only question asked of the account supervisor on the issue was whether the charges were fair and reasonable. To that she answered yes, but the most *674illuminating aspect of her testimony was her answer to Williams’ question on cross-examination as to what certain supplies were for, She said, “I don’t know what the medical problem was so I don’t know what kind of supplies they would use. They may have used catheters. I don’t know what the illness was.” Based upon this answer Williams individual effort to get some explanation as to the charges ended when he said “[s]he don’t know what this is from and I don’t either, so there’s nothing else I can ask her.” Judge Hanna did not have to believe the hospital’s witness — and it is obvious why no credence he given that evidence, since the witness didn’t even know why the patient was in the hospital, but could nevertheless claim the charges reasonable.
There was no evidence in the form of admissions, nor testimony nor other documentation to sustain Research’s burden on the ultimate issue. The trial court did not err in finding for Williams. Its judgment was supported by substantial evidence and under Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) the judgment should be affirmed.
. Where the defendant was allowed to file late answers to avoid pivotal admission (in effect a withdrawal of matters deemed admitted). The District Court for the Western District of Missouri, said to deny the request, . . would produce an ‘unjustified supression of the merits,’ a result which we find unacceptable.” Id. at 4. Dependahl v. Falstaff, 491 F.Supp. 1188, 1194 (E.D.Mo.1980).