dissenting.
I concur in the result reached in Judge Benton’s Dissenting Opinion. As Judge Benton points out, the theory of apparent authority and the issues that constitute the elements of that theory, all of which are marshalled in an impressive array of advocacy in the majority opinion and in Judge Benton’s opinion, were an afterthought in this case. Apparent authority was introduced by the plaintiff in the court of appeals as an alternative basis for finding the policy to be in effect at the time of the fire. We have no trial evidence on this issue; it was agreed to submit the case upon a stipulation of facts and the brief deposition testimony of Doug Graue, the plaintiff-respondent, and of Deanna Maclin, the part-owner of Bond & Associates.
After finding myself caught up in the escalating advocacy of the majority and dissenting opinions, I have now stepped back and asked, “What was Mr. Graue’s belief as to the status of his insurance policy when he left the office of Bond & Associates on January 8, having paid the premium of $102 for the next year?”
Mr. Graue’s deposition consists of 101 questions and answers, 25 of which answers are in substance, “I don’t know,” or “I don’t remember.” As might be expected with a discovery deposition, it consists only of direct examination by the attorney for his opponent, the insurance company. More important for this analysis, it does not even attempt to cover the occasion on January 8 when Mr. Graue went to the office of Bond & Associates and paid the premium. Despite the brevity and intermittent nature of this testimony, I can draw some firm conclusions about Mr. Graue’s state of mind in this matter. I am abidingly convinced that the intriguing legal issue of whether Bond & Associates was the agent of the insurance company or the agent of Mr. Graue, or was anybody’s agent, never even remotely approached Mr. Graue’s conscious or subconscious mind. By the same token, I am fairly sure he did not read, much less even consider the disclaimers, notices and instructions affixed to and accompanying his insurance bill.
I am reasonably sure that when Mr. Graue left the office of Bond & Associates on January 8, having just paid his insurance premium of $102, he had an honest, gut feeling either that he had met the premium payment requirements for his insurance policy so that it was firmly in place for another year or that his policy was going to go into default the next day because his premium would not reach the insurance company’s office in St. Louis as required. However, Doug Graue’s testimony does not even cover this meeting, and the best evidence that Deanna Maclin’s deposition is not determinative is the fact that both the majority opinion and the dissenting opinion argue convincingly that her version of what occurred on January 8 unequivocally supports the divergent positions of each of the respective opinions. From the scant evidence available, I cannot tell what Mr. Graue’s honest expectation was, and therein lies the whole answer to the question of whether the fascinating legal theory of apparent authority will answer the question in this case.
Usually, when a case reaches the Missouri Supreme Court, the jury or the trial judge has answered factual questions such as this. Because apparent authority was not in the picture when this case was tried, *789this Court must decide what the facts were regarding apparent authority. Mr. Graue, who relies upon apparent authority, has the burden of proof, i.e., the risk of non-persuasion. Having already observed that I am unable to discern his state of mind at the critical point when he left the office of Bond & Associates, plaintiff loses. I would join Judge Benton in refusing to affirm the trial court based on the theory of apparent authority.
I concur in Part III of Judge Benton’s opinion. I would reverse the trial court for the reasons stated therein.