author: KELLY, Judge.

text:
    James J. HELBIG, Plaintiff-Appellant, v. Robert MURRAY (Individually and as Mayor of City of Crestwood), and City of Crestwood, Defendants-Respondents.
    No. 36993.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 18, 1977.
    London & Greenberg, Lawrence J. Fleming, St. Louis, for plaintiff-appellant.
    W. Ray Raleigh, Anton, Raleigh & Wynne, Crestwood, for defendants-respondents.
   KELLY, Judge.

This is an appeal from a judgment of the Circuit Court of St. Louis County wherein the trial court sustained the defendants’ motion to dismiss plaintiff-appellant’s petition praying for an injunction to enjoin the defendants from removing him from the office of Fire Chief of the City of Crest-wood, Missouri, or, in the alternative, for a declaration of the rights and duties of the parties and for an order requiring the City to reimburse him for wages and salary lost or withheld from him by reason of his removal from said office. We affirm.

Simply stated, plaintiff-appellant’s (hereinafter the plaintiff) petition which was filed in the Circuit Court of St. Louis County on July 10, 1974, alleged that he was appointed Fire Chief of the City of Crest-wood, a fourth class city within the County of St. Louis, on May 9, 1972, and served in that office from that date to the “present time;” that defendant, Robert Murray, the mayor of the city, sought to appoint another person to the office of Fire Chief and to remove plaintiff from said office, in violation of the City Ordinances with respect to the Fire Chief’s term of office (§ 7.03), the procedure to be followed for the removal of an appointive officer (§ 4.17(e)), the employment policy of the city as set out in § 4.19(e), and the provision in § 4.19(f) that an appointive officer’s successor may not be appointed prior to said appointive officer’s removal. The facts alleged in plaintiff’s petition in support of the aforesaid were that after Mr. Murray took office, a motion was made before the Board of Aldermen of the city on June 25, 1974, that the Board approve the appointment of another person as Fire Chief but failed of passage because four members of the Board voted for the motion but four members also voted against the motion. Mr. Murray ruled that in his capacity as Mayor he had the authority to vote in case of a tie to break the tie and voted for the motion and ruled that the motion had carried. Plaintiff was advised by the City Administrator, that pursuant to directions from the Mayor, plaintiff was to remove his personal effects from the Fire Department offices and that his employment as Fire Chief was terminated. Plaintiff further alleged that no motion had been made or carried before the Board to terminate his position, and that the attempted removal of plaintiff from the office of Fire Chief is contrary to the Municipal Code of the City and violative of his due process rights guaranteed by the Constitutions of the United States and the State of Missouri. He also pleaded that he had no adequate remedy at law and that unless the defendants were enjoined and restrained from removing him from office he would suffer irreparable injury and damage to his good name and reputation and would be deprived of his means of livelihood.

Thereafter, on August 12, 1974, the defendants filed with the Circuit Court, a Request for Admissions and on August 15, 1974, plaintiff filed his objections to the Request for Admissions. On September 6, 1974, a “Court Memorandum” was filed whereby plaintiff’s objections were sustained to all except Request for Admission No. 21, and plaintiff agreed to enter into a stipulation “establishing that his residence during the period Jan. 1, 1972 to date was in the City of St. Louis and his official address 6007 Eitman, St. Louis City.”

On September 17, 1974, defendants filed their “Motion to Dismiss Or In the Alternative Motion for Summary Judgment.” According to this Motion the basis for dismissal or summary judgment was that, at the time of plaintiff’s appointment to the office of Fire Chief of the City, he was in violation of § 79.250 RSMo. 1969 by reason of non-residency as evidenced by the stipulation aforesaid and an affidavit of the City Clerk attached to and made a part of the Motion as an exhibit, that from January 1, 1972, “until the present time” plaintiff was not a registered voter of the City of Crest-wood according to a list of registered voters provided by the St. Louis County Board of Election Commissioners. On some later date, (when, is not stated in the transcript of the record in this court) plaintiff filed an affidavit dated December 6, 1974, wherein he states that at the time of his appointment to the office of Fire Chief of the City he was living in the City of St. Louis at 6007 Eitman and that all members of the Board of Aldermen, as well as the Mayor at that time, knew this; that he continued throughout his term as Fire Chief to live at 6007 Eitman and he was never advised of any provision of Missouri law which would require that he be a resident of the City of Crestwood, and that his non-residency was not raised at any time and that, therefore, the City had waived any claim or objection to his non-residency.

On February 26, 1975, the Circuit Court entered the following order:

“Defendant’s Motion to Dismiss previously heard and submitted is sustained and said cause be and it hereby is dismissed with prejudice at defendant’s costs.”

On appeal, plaintiff contends that the trial court erred in sustaining defendants’ motion to dismiss because his petition did state a cause of action against the defendants and said motion was based upon matter not “encompassed” by his petition.

Plaintiff argues that a ruling on a motion to dismiss is confined to the face of the petition and that the trial court erred in considering matters outside the four corners of his petition in arriving at its order sustaining defendants’ motion.

Generally in ruling on a motion to dismiss a petition for failure to state a cause of action the trial court is confined to the face of the petition. Feinstein v. Edward Livingston & Sons, Inc., 457 S.W.2d 789, 792[1] (Mo.1970). Here, however, the motion to dismiss was joined with a motion for summary judgment with an affidavit attached as an exhibit and after the plaintiff entered into a stipulation of fact that he was never a resident of the City of Crestwood during the entire period he served as Fire Chief of that City. He further reinforced the stipulation by filing an affidavit wherein he again admits his non-residency. Rule 55.27(a) provides that “ . . . if, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04 [V.A.M.R.] Kelley v. Schnebelen, 545 S.W.2d 332, 334[1] (Mo.App.1976). We conclude, from defendants’ Motion, the issue presented was whether plaintiff had standing in the face of his admitted non-residency to bring this cause of action seeking injunctory relief, and that the trial court correctly ruled he did not have standing. This argument of plaintiff we hold to be without merit.

Plaintiff’s argument that he was denied procedural due process by reason of the failure of the defendants to follow the procedures for removal set out in the ordinances of the City is likewise without merit. The ordinances upon which plaintiff relies are set out in the appendix at the end of this opinion. Section 79.250 RSMo. 1969, requires “officers appointed under city governments be qualified voters and residents of that city, with the exception of police officers, the city attorney and other employees having only ministerial duties,” and applies to all cities of the fourth class, which the City of Crestwood admittedly is. For reasons hereinafter stated we hold that the plaintiff had no standing to challenge his removal.

We conclude from'the plaintiff’s petition, his stipulation of non-residency, and his affidavit wherein he admits his non-residency, that he at no time possessed the statutory qualifications imposed by § 79.250 RSMo. 1969 for the appointive office of Fire Chief of the City, and was, at best, a “de facto officer” throughout the period of May 9, 1972, to June 25, 1974, by reason of his non-residency. Although he had the reputation or appearance of being the Fire Chief he assumed to be, in fact, under the applicable law, he had no right or title to the office he assumed to occupy. State v. Smith, 345 Mo. 1158, 139 S.W.2d 929, 933[5] (banc 1940).

Whether a “de facto officer” may challenge his removal from office by the duly elected officials of a city has not been decided in Missouri to our knowledge. Whether a “de facto officer” is entitled to all of the trappings of procedural due process, prior to removal from the office he holds in violation of the statutory residence requirements in a case where he concedes that he is in violation of said residency requirements throughout the period he served as Fire Chief, has likewise, to our knowledge, not been decided.

We believe, however, that since, by definition, a “de facto officer” has no legal right to the office he occupies, State v. Smith, supra, he sustains no injury or violation of any right or title to office upon removal from said appointive office, whether said removal complies with the procedures established by the ordinances of the city for the removal of appointive officers or not, when as here, he admits that he does not possess the residency requirement established by the General Assembly for anyone accepting appointment to said municipal office.

Plaintiff does not really argue that he may not be removed from office for non-residency, and his counsel in oral argument, candidly conceded that his client’s non-residency would be cause for his removal. Plaintiff contends, however, that removal, if it comes about, should be by Quo Warran-to. In so arguing, he overlooks the posture in which his case was brought to the Circuit Court, i.e., a suit wherein he is the plaintiff praying for an injunction to restrain the defendants from removing him from an office for which he admits he does not possess the statutorily established residency qualifications. He attempts to employ the offices of a court of equity to prevent the defendants from complying with the requirements of § 79.250 RSMo. 1969 and to force them to retain him in office when he is not qualified. The equities are not with plaintiff and we hold that there was no error in the trial court’s order dismissing plaintiff’s petition because we find that he has no standing to pursue this remedy.

Plaintiff’s estoppel argument is likewise without merit. The general rule is that estoppel will not be applied against a municipal corporation in the exercise of a governmental function. State ex rel. Walmar Investment Company v. Mueller, 512 S.W.2d 180,184[4] (Mo.App.1974). While in some exceptional circumstances, and where justice requires, the doctrine of estoppel may be applied against a municipal corporation and its officers, Rottjakob v. Leachman, 521 S.W.2d 397 (Mo. banc 1975), this is not one.

Judgment of the Circuit Court of St. Louis County is affirmed.

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

APPENDIX

RELEVANT SECTIONS OP THE MUNICIPAL CODE OF THE CITY OF CRESTWOOD

1. Section 4.17(e): “REMOVAL OF OFFICERS. Appointive Offices. Appointive Officers may be removed by the Mayor at will and without cause with the consent of a majority of all the members elected to the Board of Aider-men. Appointive officers may be removed at will and without cause by a two-thirds vote of all the members elected to the Board of Aldermen independently of the Mayor’s approval or recommendation.”
2. Section 4.19(e): “TENURE OF OFFICE. Employment Policy. The Board of Aldermen hereby declares that it is the policy of the city with respect to those appointive and full time officials and full time salaried employees who depend for their livelihood upon their compensation from the city, to assure such persons of permanency in their employment, as nearly as possible to that which might be experienced in private employment, to the extent possible in the best interests of the city as may be determined by the Board of Aider-men.”
3. Section 4.19(f): “Terms Concurrent with Mayor. Appointive officials and employees affected by this section whose terms are designated to run with that of the Mayor, shall be deemed to be appointed for indefinite terms and must be removed from office or employment before a successor may be be appointed.”
4. Section 7.03: “FIRECHIEF. The Executive Officer of the Fire Department shall be the Fire Chief, to be appointed by the Mayor with the approval of the Board of Aldermen. The Chief’s term shall be concurrent with that of the Mayor and shall continue until his successor is duly appointed and qualified. The Chief shall make or cause to be made all fire inspections of new buildings, be in charge of all operations of the Department and shall be responsible for the training of the personnel thereof. He shall perform such other duties as may be directed by ordinance or order of the Board of Aldermen and directives of the Fire Board.”


source: Caselaw Access Project

author: SIMEONE, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Leonard McClure BRADDOCK, Defendant-Appellant.
    No. 37988.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Oct. 18, 1977.
    J. Martin Hadican, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Jeff W. Schaeperkoetter, Walter O. Theiss, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
   SIMEONE, Chief Judge.

This is an appeal by defendant-appellant, Leonard McClure Braddock, from a judgment of conviction entered by the Circuit Court of the City of St. Louis whereby the appellant, after being found guilty by a jury, was sentenced under the provisions of the Second Offender Act to twenty-two years in the Department of Corrections for the offense of robbery in the first degree. §§ 560.120, 556.280, RSMo. For reasons hereinafter stated, we affirm.

Since the appellant, Leonard McClure Braddock, does not raise the issue of the sufficiency of the evidence, only those facts necessary for the disposition of the points raised on appeal need be stated.

The jury could reasonably find the following salient facts. Sometime during the evening of October 14, 1974, Miss Alois Weems, who was acquainted with Paul Underwood and the appellant Leonard Braddock, borrowed an automobile owned by Eugene Hawkins. Miss Weems lived in the same apartment house with Paul Underwood. On the next day, October 15, 1974, she went to the house of Paul Underwood’s mother some blocks away and she and Paul tried to locate Leonard Braddock. They found Leonard walking on Maryland Avenue in the City of St. Louis. The three then drove around and entered into a discussion. “It was stated that [there] was a service station down there [corner of Broadway and Chouteau] and that it was two young boys working there and that they were going to rob them because they didn’t think they had any guns.” According to Miss Weems, who was arrested and charged with robbery and whose cause was later nolle prosequied, Paul and Leonard stated that “[t]hey were going to rob the service station.” Before reaching the service station owned by Robert Riegel and known as the Texas Discount Service Station, the three stopped at Paul Underwood’s mother’s house and “. . . Paul went inside to get two caps.” They then went to Leonard Braddock’s mother’s house somewhere in the vicinity of Maryland Avenue and the two men went in and came out with two jackets and ladies’ nylon stockings. Miss Weems could not remember which of the two brought up the subject of committing a robbery.

When the trio reached the vicinity of Broadway and Chouteau they “. drove past the service station down the street and drove behind — parked behind a trailer.” They parked on Papin Street about a block from the service station. Miss Weems remained in the automobile. The two men took with them the “[t]wo jackets and two caps and [nylon] stockings.” They walked towards the service station while Miss Weems remained in the automobile. Some few minutes later “[t]hey were running back towards the car.”

At the service station that evening at about 8:00 p. m. two young service station attendants were on duty — Timothy J. Cur-ran, age twenty, and Terry Carrón, age eighteen. Shortly before 8:00 p. m., while they were checking out the day’s earnings and Curran was “dropping money down the safe,” two men came into the station. One had a gun and the other stood by the door on the inside. They both had stocking masks. The one with the gun demanded money — “ ‘Give me all of it’ ” — while the second man kept saying “ ‘Hurry,’ ‘Come,’ ‘Hurry,’ ‘Let’s go.’ ” Carrón gave the man the money — approximately eight-seven dollars and eighty-eight cents. The men were in the station about two or three minutes. “. . . [T]hey [then] ran out the front door and they proceeded to run up Papin Street.” The two service station attendants could not positively identify the two men, but after the robbery identified Paul Underwood as the man with the gun from the clothing he was wearing and the mask around his neck.

While the alleged robbery was taking place, Mr. Nicholas P. Vitale, a private patrolman for the St. Louis Terminal Railroad Police, “. . . just looked over and noticed the two attendants were standing in front of the window with their arms in the air and I seen the two subjects and I just had a funny feeling something was wrong . they ran out, they just ran out of the station and ... I went after them. I chased them up Papin Street.” The two men jumped in the parked car and when Vitale got there they “. . . got out of the car and ran and I looked in the vehicle and the girl [Weems] was still sitting there. She was laying down in the front seat of the car.” The officer told her to stay there. Meanwhile the two service station attendants came and Vitale told them to call the police. One already had. Within a short time police officers Paul Behrman and Clyde McCandless came upon the scene. Miss Weems told McCandless that “. . . Braddock and Underwood were the ones that did it . . The officers found in the parked vehicle a billfold belonging to Braddock which contained his driver’s license. Soon after the robbery the officers found Paul Underwood on a nearby lot “. . . . in a truck that was on this lot, down on the floorboard of the truck.”

Appellant-Braddock was arrested later in the day after officers spoke to Miss Weems and after they found his wallet in the vehicle. According to Officer Behrman, Braddock was identified by the two attendants as one of the robbers by the clothing he wore. After Officer Paul Behrman had an arrest order for Braddock issued, he was arrested and taken to the Seventh District Station. Officer Eugene Baerman transported Braddock to the Fourth District. After being warned of his rights Braddock said, “ ‘Who snitched on me, Underwood?’ ”

According to Officer McCandless and the testimony of Miss Weems, she gave a statement to the officer which clearly implicated Braddock and Underwood in the robbery.

Based upon the above facts the appellant was charged on June 19, 1975 in a substitute information with a prior conviction and with robbery by means of a dangerous and deadly weapon in that he did rob, steal, take and carry away money belonging to Bob Riegel of the Texas Discount Service Station which was in the custody of Terry Carrón. Nothing in the information charged Braddock with acting in concert with another.

The trial was held and the above facts were elicited. The court, among other instructions, gave Instruction No. 6 which told the jury that all persons who act together with a common purpose are guilty. The court also gave Instruction No. 7 which told the jury, inter alia, that it should find defendant guilty of robbery in the first degree if he intentionally aided or encouraged the persons who engaged in the conduct of taking property from Terry Carrón by causing him to fear immediate injury.

The jury found appellant guilty of robbery in the first degree. The forms submitted to the jury had the words that the defendant was charged with robbery in the first degree by means of a dangerous and deadly weapon, but the jury found the defendant guilty of robbery in the first degree as submitted to it in Instruction No. 7.

After a motion for new trial was overruled and allocution granted, the trial court, under the provisions of the Second Offender Act, sentenced the appellant to twenty-two years in the Department of Corrections. In proper time the defendant perfected his appeal to this court.

On this appeal the appellant makes three points. He contends, first, that the trial' court erred in giving Instruction No. 7, the verdict director, because the instruction resulted in his being convicted for an offense for which he was not charged (robbery in the first degree). He contends that Instruction No. 7 allowed the jury to find him guilty of robbery in the first degree (a) although he was charged in the information with robbery in the first degree by means of a dangerous and deadly weapon under § 560.135, RSMo. and (b) although he was charged that he acted alone in committing the robbery. Second, he contends that the court erred in giving Instruction No. 6 because the instruction permitted the jury to find him guilty if he acted with others with the common purpose of committing the offense or aided and encouraged another in committing the offense when the substitute information charged him with acting alone and not with others. Third, he contends that the verdict returned by the jury was defective because it was inconsistent since the verdict form used by the jury was styled “robbery in the first degree by means of a dangerous and deadly weapon” but the jury returned a verdict on the same form of “ ‘guilty of robbery in the first degree as submitted in Instruction 7’ ” which did not refer in any way to a dangerous and deadly weapon.

After due consideration of the appellant’s points and arguments we are convinced that the judgment of conviction must be affirmed.

First, in Keeny v. State, 461 S.W.2d 731, 732 (Mo.1971) it is stated that “[a]n accused charged with robbery in the first degree by means of a dangerous and deadly weapon may be convicted of robbery in the first degree. . . . ” Robbery in the first degree comprehends an act committed with or without a dangerous and deadly weapon. Robbery by means of a dangerous and deadly weapon merely goes to the penalty so that the reference to the element of robbery in the first degree by means of a dangerous and deadly weapon in the substitute information may be treated as surplusage and may properly be disregarded. Keeny v. State, 461 S.W.2d at 733. There is no violation of Article I, Sections 17 and 18 of the Constitution of Missouri.

Secondly, Instruction No. 6 was not error. It complied in all respects to MAI-CR 2.10 and stated the law accurately relating to persons who participate in a criminal offense. See State v. Jackson, 519 S.W.2d 551, 556 (Mo.App.1975). Furthermore, it has been authoritatively held that an instruction permitting a finding of guilt if the defendant acted with another is not erroneous although the information made no reference to the defendant acting with another. “No such allegation was required in the information in order to permit the instruction.” State v. Martin, 525 S.W.2d 804, 811 (Mo.App.1975), relying on State v. Scullin, 185 Mo. 709, 84 S.W. 862 (1905). See also Latham v. United States, 407 F.2d 1, 4 (8th Cir. 1969) and cases cited therein.

Thirdly, the verdict returned by the jury was not defective because the style on the form indicated that the defendant was charged with robbery in the first degree by means of a dangerous and deadly weapon when the jury returned a verdict of guilty of robbery in the first degree “as submitted in Instruction No. 7.”

The jury was instructed on the precise crime for which the appellant was convicted. The words to which the appellant objects merely point to the information and the charge not to the facts as developed at trial and the instructions given by the court. The verdict was consistent with Instruction No. 7 and consistent with the rule that a defendant may be convicted of robbery in the first degree although charged with robbery in the first degree by means of a dangerous and deadly weapon.

We have read the entire transcript; we have read the briefs of the parties and the authorities therein. We are convinced that there is no prejudical error; hence, we affirm the judgment of conviction.

The judgment is affirmed.

NORWIN D. HOUSER and ALDEN A. STOCKARD, Special Judges, concur.

      . INSTRUCTION NO. 6. “All persons are guilty who knowingly act together with the common purpose of committing an offense, or who knowingly and intentionally aid or encourage another in committing it, and whatever one does in furtherance of the offense is the act of each of them.
      “The presence of a person at or near the scene of an offense at the time it was committed is alone not sufficient to make him responsible therefor, although his presence may be considered together with all of the evidence in determining his guilt or innocence.”

      . INSTRUCTION NO. 7. “If you find and believe from the evidence beyond a reasonable doubt:
      First, that on October 15, 1974, in the City of St. Louis, State of Missouri, Bob Regal [sic], doing business as the Texas Discount Service Station, had possession of a quantity of money, lawful currency of the United States, in the care and custody of Terry Carrón, and
      Second, that at that time and place the defendant took the property from Terry Carrón by causing him to fear immediate injury to his person, and
      Third, that the defendant took the property with the intent to permanently deprive Bob Regal, doing business as the Texas Discount Service Station, of the property and to convert it or any part of it to the use of the defendant and others, and
      Fourth, that the defendant knowingly and intentionally aided or encouraged the persons who engaged in the conduct submitted in the above paragraphs,
      then you will find the defendant guilty of robbery in the first degree.”

      . The Supreme Court relied upon State v. Garrett, 435 S.W.2d 662, 666 (Mo.1968) and State v. Salisbury, 43 S.W.2d 1021, 1024 (Mo.1931).

      . State v. Pope, 364 S.W.2d 564, 568 (Mo.1963).


author: McMILLIAN, Judge.

text:
    Clara FRIEND, Plaintiff-Respondent, v. Jewell F. Bailey MORROW, Defendant-Appellant.
    No. 38728.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 25, 1977.

      Hux & Green, Jim S. Green, Sikeston, for defendant-appellant.
    Medley, Alexander & McIntosh, Charles W. Medley, Dennis E. McIntosh, Farming-ton, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant-appellant, Jewell F. Bailey Morrow, appeals from a judgment of the circuit court of St. Francois County granting possession to plaintiff-respondent Clara Friend of ten church bonds or, if respondent does not recover the bonds, respondent is awarded the sum of $11,200 or the face value of the bonds plus the value of the interest coupons detached and cashed by appellant. For the reasons discussed below, we affirm the judgment of the trial court.

This case arises out of a dispute between respondent, the wife of P. C. Friend, and appellant, the daughter of P. C. Friend by a previous marriage, over the ownership of some forty-five (45) bonds, among them the ten church bonds at issue here. Respondent sued appellant, charging her with conversion of the bonds and transfer of property with the intent to defraud respondent of her marital rights.

For reversal appellant argues that the trial court erred: (1) in finding that appellant converted the ten church bonds because respondent failed to establish the necessary elements of conversion and (2) in admitting into evidence the deposition of respondent.

P. C. Friend purchased ten $1,000 bonds of the First Baptist Church of Bismarck, Missouri, in January, 1968. Each of the bearer bonds had a serial number and interest coupons attached. Mr. Clyde Ruble, Chairman of the Building and Finance Committees of the First Baptist Church of Bismarck, testified that P. C. Friend purchased the bonds from him and instructed him to deliver them to respondent’s home in Bismarck. Mr. Ruble delivered the bonds to respondent’s house, placed them on the dining room table and counted them in front of respondent. Mr. Ruble told respondent that her husband had bought the bonds and had instructed him to deliver them to her.

Respondent then testified by deposition. She apparently believed at the time the bonds were delivered that her husband would pick up the bonds later and take them to DeSoto, Missouri. P. C. Friend had lived in DeSoto, Missouri, at the home of a family friend, Cecilia Riley, for about twenty years. He worked in DeSoto during the week and returned to Bismarck on the weekends. Several weekends after delivery, respondent brought up the subject of the bonds. Respondent testified that her husband said, . . ‘They belong to you; I’m going to give those bonds to you’ . Respondent put the bonds in the drawer of her buffet and intended to put them in a safety deposit box but never did. She kept the bonds about one year until she became ill and was hospitalized. She asked her niece Margie Kohn to call P. C. to take the bonds and put them in a safe place because there was no one in her house while she was in the hospital. P. C. picked up the bonds and returned to DeSoto.

P. C. was hospitalized in St. Louis, Missouri, in 1974. He requested Cecilia Riley to go to DeSoto and pick up the bonds and give them to his daughter (appellant). Mrs. Riley testified that she delivered the bonds to appellant on July 31, 1974. Appellant retained the bonds and cashed several of the interest coupons as they became due.

P. C. Friend died September 1, 1974.

We review this court-tried case as set forth in Murphy v. Carron, 586 S.W.2d 30 (Mo.banc 1976). The 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. Id. at 32. Appellant first argues that the trial court erred in finding that appellant converted the church bonds because respondent failed to establish the necessary elements of conversion. . . [I]n order to maintain an action for conversion, the party claiming aggrievement must have title to, or a right of property in, and a right to the immediate possession of the property concerned at the time of the alleged conversion . . Kessler v. Reed, 481 S.W.2d 559, 562 (Mo.App.1972). We believe there is substantial evidence to support the finding of the trial court that respondent is the owner of the church bonds.

Respondent claimed the church bonds were a valid inter vivos gift to her from P. C. Friend. “The essentials of an inter vivos gift of personal property . are ... ‘a present intention to make a gift on the part of the donor, a delivery of the property by the donor to the donee, and an acceptance by the donee, whose ownership takes effect immediately and absolutely.’ ” Wantuck v. United Sav. & Loan Ass’n, 461 S.W.2d 692, 694 (Mo.1971) (citations omitted), quoting Thomas v. Thomas, 107 Mo. 459, 18 S.W. 27, 28. We believe that respondent clearly established delivery, present donative intent and acceptance and therefore a complete inter vivos gift. Mr. Clyde Ruble delivered the bonds to respondent according to the instructions of the donor. Apparently P. C. Friend expressed the intent to give the bonds to respondent after their delivery because several weeks later he told respondent “[the bonds] belong to you; I’m going to give those bonds to you.” It is not essential, however, that “. . . delivery of the property be simultaneous with the words of donation . . . [If delivery] precedes the words, so that the property is already in the possession of the donee, no new delivery is necessary. . . . ” 38 Am.Jur.2d, Gifts, § 21 (1968). The donor’s words expressed “. . . a clear, unmistakable, and unequivocal intention” to make a gift. Id. § 17; e. g., Harris Banking Co. v. Miller, 190 Mo. 640, 89 S.W. 629 (1905); In re Estate of Simms, 423 S.W.2d 758 (Mo.1968). Respondent placed the bonds in the buffet drawer thereby exercising the necessary dominion over the subject of the gift to constitute acceptance.

Appellant does not contend that P. C. Friend gave her the bonds. Appellant received custody of the bonds because P. C. Friend, at that time in the hospital, requested his friend Cecilia Riley to deliver them to appellant. P. C. Friend had possession of the bonds because respondent had become ill and had requested P. C. to pick them up for safekeeping. Respondent testified that she was hospitalized at this time and was worried about the security of the bonds in her empty house. The return of the subject matter of a completely executed gift by the donee to the donor for a purpose not inconsistent with the gift, such as safekeeping, will not render the gift invalid. 38 Am. Jur.2d, Gifts, § 27 (1968); e. g, Snyder v. Stouffer, 270 Md. 647, 313 A.2d 497 (1974).

Appellant also argues that she enjoys a presumption of ownership as the present holder of the bearer bonds which respondent has failed to rebut. Upon delivery of an investment security such as bearer bonds the purchaser acquires the rights in the security which his transferor had or had actual authority to convey, § 400.8-301(1) RSMo 1969. In this case P. C. Friend did not have any rights in the security or actual authority to convey. A completely executed gift operates as between the parties to the transaction as a full and complete transfer of the title to the property from the donor to the donee. 38 Am.Jur.2d, Gifts, § 76 (1968). It is true that a bona fide purchaser or a purchaser for value in good faith and without notice of any adverse claim who takes delivery of a security in bearer form, § 400.8-302, RSMo 1969, acquires the security free from any adverse claim. Id. § 400.8-301(2). Appellant, however, does not meet all the requirements of a bona fide purchaser. There is no evidence that appellant received the church bonds for value. Id. § 400.3-303; 11 Am.Jur.2d, Bills and Notes, § 343 (1963).

Furthermore, “ . . . even though a donee of a valid gift inter vivos is not in possession of the property given, the gift is binding upon persons claiming under the donor, and [the donee] has a title superior to that of a subsequent purchaser or encum-brancer with notice of the gift . . . ” 38 Am.Jur.2d, Gifts, § 77 (1968). Appellant does not claim the status of a subsequent purchaser or encumbrancer without notice, only that.she is the present holder of the bonds. For the reasons discussed above, we hold that the bonds were the subject of a valid inter vivos gift to respondent and were converted by appellant.

Appellant further argues that the trial court erred in admitting into evidence the deposition of respondent taken September 25,1975. Appellant argues that respondent’s deposition was inadmissible under Rule 57.07, V.A.M.R. (1976), and under the Dead Man Statute, § 491.010, RSMo 1969. The record shows that appellant submitted interrogatories to respondent which were answered. This constituted a waiver of the incompetency of respondent as a witness under the Dead Man Statute, e. g., Watkins v. Watkins, 397 S.W.2d 603, 611 (Mo.1965); Edwards v. Durham, 346 S.W.2d 90, 99 (Mo.1961); Lehr v. Moll, 247 S.W.2d 686, 690 (Mo.1952).

In essence appellant contends that the deposition of a party cannot be used as evidence because the rule mentions only the depositions of witnesses. We disagree. Rule 57.07(a)(3), V.A.M.R., states that “[t]he deposition of any witness who is not present in court may be used by any party for any purpose if the court finds . that by reason of age, sickness, bodily infirmity or imprisonment, the witness is unable to or cannot safely attend court . . ..” The finding as to the inability of a witness to attend court rests largely within the discretion of the trial court. Boyle v. Crimm, 363 Mo. 731, 253 S.W.2d 149 (1952); cf. Key v. Kilburn, 228 S.W.2d 731 (Mo.1950) (deposition of witness taken in anticipation that his mental condition might deteriorate held inadmissible where no evidence was offered as to any change in witness’ mental condition); Null v. Gray, 534 S.W.2d 823 (Mo.App.1977) (physician engaged in the discharge of his professional duties at time of trial).

Dr. M. Beck, respondent’s personal physician, made a statement that certified respondent as physically unable to attend any court proceeding. Dr. Beck also testified that it was his opinion that it would be unwise for respondent to appear in court due to respondent’s condition and advanced age. He testified that respondent was 82 or 83 years old at the time of trial, had vascular disease and sclerotic heart disease, her condition was deteriorating and had ulcers of the lower extremities, shortness of breath and some cerebral anxiety. Respondent testified at her deposition that she had sores on her legs and high blood pressure. She also stated that she only left her house to go see the doctor. This evidence was sufficient to establish that respondent was unable to attend court by means of age, sickness and bodily infirmities so as to authorize the use of her deposition. Obermoeller v. Speck, 544 S.W.2d 21 (Mo.App.1977). In Obermoeller, supra, the deponent was 76 years old at the time of the deposition, had had infantile paralysis since the age of two, suffered from dropsy, heart trouble, high blood pressure and edema, and had left her house only three times in the past eleven years, twice in an ambulance to go to the hospital.

The definition of witness is “á person whose testimony is desired in any proceeding . . ..” § 491.400(3) RSMo 1969. The definition does not exclude parties. Rule 57.03, V.A.M.R. (1976) permits “any party[to] take the testimony of any person, including a party, by deposition upon oral examination.” In State ex rel. Chandler v. Scott, 427 S.W.2d 759 (Mo.App.1968), relator, petitioner in a proceeding for divorce and custody of the children of the marriage, asked the trial court to allow him to take his own deposition by written interrogatories. Relator’s inability to appear personally was due solely to his military service; relator was at that time in Camp Pendleton, California, en route to Vietnam. The court noted that the Federal Rules which were the basis for the applicable Missouri Rules of Civil Procedure, since repealed and replaced, have been construed to allow a party to take his own deposition in exceptional circumstances. Id. at 761. The court then stated that the right of a party litigant to take the deposition of any witness is an absolute right and permitted relator to direct interrogatories to himself. Id. at 762.

In the present case appellant was given proper notice of the time of respondent’s deposition and failed to appear. The evidence established that respondent was aged, ill and suffered from bodily infirmity such that she would be unable to attend court. In these circumstances we do not think the trial court erred in admitting into evidence respondent’s own deposition.

Accordingly, judgment is affirmed.

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


author: NORWIN D. HOUSER, Special Judge.

text:
    Dixie J. SMITH, Respondent, v. Kenneth W. SMITH, Sr., Appellant.
    Nos. 37637 and 38921.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Oct. 25, 1977.

      Maniscalco, Clancy, Pittman & Bagot, George J. Bagot, Clayton, for appellant.
    Klutho, Cody & Kilo, Attys., Inc., Edward C. Cody, St. Louis, for respondent.
   NORWIN D. HOUSER, Special Judge.

In November, 1973 Dixie J. Smith filed a motion to modify the March, 1970 order awarding her $25 per week for the support of 11-year-old Barbara Ann, child of her marriage with Kenneth Smith. She sought an increase on the basis of increased cost of living, decreased purchasing power of the dollar and an increase in her ex-husband’s ability to pay. She also asked for attorney fees and expense money. In January, 1974 the ex-husband filed a countermotion to modify. He sought a reduction on the basis of a decrease in his earnings, and an order requiring the ex-wife to contribute to the support of the child because of her financial ability in view of the fact that since the divorce she had obtained employment and financial independence. He also asked for an order requiring the ex-wife to pay his attorney fees and “costs of litigation and costs of court.”

During four days in August and September, 1974 the two motions were tried to the court. In July, 1975 the court sustained Dixie Smith’s motion and overruled Kenneth Smith’s motion, and made an order requiring the ex-husband to pay $40 per week for child support. Barbara Ann was then 16 years old. The ex-husband appealed the orders made on both motions. The ex-wife filed a motion for attorney fees and expenses to be incurred on appeal. The court sustained that motion and allowed $750 attorney fee and $75 expenses. The ex-husband appealed this separate order. The two appeals were consolidated and will be disposed of in one opinion.

Case No. 37637 — On the Motions to Modify the Order Relating to Child Support

Examination of the lengthy pleadings, interrogatories, answers to interrogatories and exhibits, including numerous individual and corporate income tax returns, bank ledger sheets, financial statements, and other documents, the 354-page transcript and sixty pages of appellate briefs leads inevitably to the conclusion that the trial court’s order increasing the child support by $15 per week was inadequate and that the father is financially able to meet the actual necessities of the situation.

Kenneth Smith is a real estate broker who does business through a wholly-owned, one-man corporation. He owns a number of income-producing properties, having acquired three such properties since 1970. He has also built himself and his new family a $30,000 home in Ladue on a lot which cost $10,000. Gross rentals from his real estate holdings approximate $50,000 per year. His borrowings require sizeable payments of principal and interest. Gross cash receipts increased each year:

Year Ending Total Cash Receipts
6-30-1970 $ 67,612
6-30-1971 172,824
6-30-1972 183,389
6-30-1973 254,317

He conceded nontaxable income in the form of depreciation taken on his personal tax returns as follows: 1970, $10,000; 1971, $10,000; 1972, $10,500; 1973, $10,647. Records show his equities in various properties are increasing at the rate of $10,200 annually because of the large annual payments he is devoting to the reduction of indebtedness. These payments run about $3,500 to $4,000 per month. He admitted his total indebtedness against his real estate was reduced by the sum of $29,974 during the first eight months of 1974. His financial statement as of January 1, 1974 showed assets of $448,-121 (including real property interests valued at $429,000) and liabilities of $381,373, thereby showing a net worth of $66,747. Corporate tax returns show an increase in the value of the corporate assets from $38,-000 on June 30,1971 to $101,225 on June 30, 1974. Since the 1970 divorce he has bought 500 shares of General Dynamics stock valued at $10,000; has kept his 100 shares of TWA, and other stocks; has acquired three parcels of income-producing property, built a new home and reduced his mortgage indebtedness by $10,000 or more each year. He testified that his living costs were $10,-200 per year for himself, his new wife and her child.

Dixie Smith received $20,000 alimony in gross at the time the divorce was granted in 1970. At that time she was not employed. The $20,000 had dwindled to $3,200 in 1974. At the time of trial she was employed. Her monthly take-home pay was $553.90 per month. Her net income as shown on her 1973 income tax return was $6,825.

There is undisputed evidence that the expense of maintaining Barbara Ann and supplying her needs of food, clothing, medical and dental care, laundry and cleaning, and for recreation, school and personal items in 1974 was $323 per month.

Appellant contends that it was error to modify the child support award upwards because there was a failure to prove either a need for greater support, or that his ability to pay had so changed as to make the original award unreasonable. He claims that the real estate market had been depressed; the real- estate business bad; that he has had no income from his real estate company since 1970; that while at time of trial in 1970 he had a job and a salary of $13,300, in 1974 he had no salary and no income except rental income (which was less than in 1970); that his debts were greater in 1974 than in 1970; that he was living on money borrowed on his life insurance policies; that a $40 weekly award is unreasonably high and constitutes a manifest abuse of discretion. Appellant points out that the ex-wife is working and has an income but he makes no contention that the court should have entered a child support order against her. We are aware of the rule that when only one party appeals, review is limited to contentions made by the appellant; that allegations of error made by respondent will not be considered, and a respondent’s complaints about a modification of an order in a domestic relations case will not be heard. Wagner v. Wagner, 465 S.W.2d 655, 657[1, 2] (Mo.App.1971); 3 Mo. Dig. Appeal and Error The ex-husband alone has appealed these two orders; the one increasing the child support award, the other denying a reduction of the amount awarded. The ex-wife did not appeal either ruling, and therefore allegations of error made by the ex-wife would not be heard. In defending these appeals, however, the ex-wife has not alleged error or complained about the rulings. To the contrary, in the concluding sentence of her brief she states that the trial court ruled correctly, and the decision should remain undisturbed, “unless in the interests of justice, this Court should order Appellant to pay an additional amount of child support on the grounds that needs of the child dictate such action and ability of Appellant to pay requires such payment.”

Appellant’s first two points on appeal raise the question of the need of Barbara Ann for increased financial support, and whether the amount awarded is “unreasonably high in relation to * * * appellant’s income and earning capacity and accordingly constitutes a manifest abuse of discretion * * 4.” By thus inviting appellate review of the question “How much?” appellant has opened the issue of the amount of money required to promote the welfare of the child, consistent with the financial ability of appellant to pay. We ' deal here with the sole issue of support for a minor child. This appeal does not involve maintenance or a division of the marital property. Where support of a minor child is involved we are not bound by any agreement of the parties or by a particular judgment of the trial court. The guiding star for our decision is the welfare of the minor child. Once the welfare of the child is in judgment the court must make the necessary orders to promote that welfare, within the indicated limitation, and technical considerations must give way to that overriding consideration. Tried to the court without a jury, these cases are to be reviewed both on the law and the evidence as in cases of an equitable nature. Rule 73.01 3.(a); § 510.310(4), RSMo 1969. We must “ * * 4 give such judgment as [the trial court] ought to have given, as to [us] shall seem agreeable to law,” Rule 83.13(c), and not only order a reduction if we find the amount excessive but also order the amount increased if we find the award inadequate to meet the reasonable needs of the child, Richter v. Richter, 532 S.W.2d 903[1, 2] (Mo.App.1976), and that appellant has the financial ability to pay an increased amount.

There is ample evidence of changed conditions making the original allowance of $25 per week unreasonable.-

As indicated, the evidence that the child’s financial needs amount to $323 per month was not disputed or challenged.

On ability to pay, appellant’s position is that notwithstanding his admitted net worth, which is considerable, notwithstanding his large gross income and ever-increasing equity in the mortgaged properties, he is so strapped financially that he cannot pay $15 more per week for the support of his child because his expenditures continually exceed his receipts. He reaches this position by budgeting his outgo in such a manner as to divest himself of several thousands of dollars each month by way of payments on mortgages; by subtracting from income the exemptions allowed him under the federal income tax law and figuring into the calculation the maximum depreciation on his real estate, thereby arriving at the conclusion that his “cash flow” constantly falls below actual expenses. In other words, he constantly reduces his own ability to support his child, which under § 452.340(1), RSMo 1969 is his “primary responsibility.” Appellant’s plea of financial inability to pay more, based upon this kind of budgeting, bookkeeping and legerdemain, is rejected. If he is financially disabled it is a voluntarily self-inflicted disability. “ * * * [H]e who performs a man’s part in procreation shall also perform a man’s part in providing support for his progeny.” Ivey v. Ayers, 301 S.W.2d 790, 794[6] (Mo.1957).

The record in this court-tried case, reviewable under Rule 73.01, demonstrates that the order awarding the mother-custodian an increase in the sum of $15 per week is against the weight of uncontradicted evidence that at trial time the financial requirements of this child, then 16 years old, amounted to $323 per month. Under this evidence the court’s award of the total sum of $40 per week, or approximately $180 per month, constituted an abuse of discretion, and must be increased. Considering appellant’s net worth, his ability to pay for the reasonable needs of his daughter by devoting to her support a small part of the large sums he is now applying to the accumulation of greater equities each year in the mortgaged properties, and finding the evidence of her financial needs reasonable, the judgment entered July 31, 1975 must be modified by increasing the amount of child support from $25 to $75 per week.

Accordingly, the order and judgment of July 31, 1975 in Case No. 37637 is modified as of July 31, 1975 by striking the figure “$40.00” occurring in the phrase “$40.00 per week for the support of the minor child," and inserting in lieu thereof the figure “$75.00,” so that the sentence in which it occurs shall read: “Respondent is ordered to pay to petitioner the sum of $75.00 per week for the support of the minor child, Barbara A. Smith, for all weeks from and after October 1, 1974.” In all other respects the order and judgment of July 31, 1975 shall remain in full force and effect.

Case No. 38921 — Pee and Expenses on Appeal

The judge who tried the motions to modify and entered judgment thereon was removed from office in July, 1976. He was succeeded by Judge Edward L. Sprague in October, 1976. In October, 1976 the ex-wife filed a motion for attorney fee and expenses on appeal, and an affidavit and suggestions in support of the motion. The motion was argued before Judge Sprague, submitted without testimony and sustained on December 29, 1976. The court ordered the ex-husband to pay a $750 attorney fee in defending the appeal and $75 expense of preparing an appeal brief. The ex-husband moved to set aside the order of December 29, 1976 or for a new trial, alleging that in oral argument of the motion the court was advised that the ex-husband was in the courtroom and that he requested the court to hear evidence on the motion; that the court advised the parties that it would consider the matter and ordered the attorneys to file a memorandum that the ex-wife’s motion for attorney fee and costs on appeal “was partially heard and submitted”; that thereafter, without further word, the court sustained the motion without permitting the ex-husband to be heard; that the successor judge was not familiar with the facts, heard no evidence regarding the ex-husband’s income or ability to pay or the ex-wife’s financial status, and had before him no evidence upon which to base his decision. The motion to set aside was argued, submitted and overruled, whereupon the ex-husband filed a notice of appeal from the latter order.

Appellant contends that it was error to enter the order allowing an attorney fee and expenses for an appeal since Judge Sprague did not personally hear the evidence on the motions to modify, and did not hear any evidence on the motion for attorney fee and expenses. Although no evidence was heard by Judge Sprague on this latter motion, evidence on the issue had been taken in connection with the motions to modify heard by the predecessor judge. This evidence was available in the form of an already-prepared transcript approved by both counsel and filed in the court of appeals December 18, 1976, a copy of which presumably was on file in circuit court pursuant to Rule 81.12(a). That transcript, prepared for appeal of the orders made on the motions to modify, contained extensive evidence pro and con, oral and documentary, on the issue of the financial status of the parties and the ability of each to pay or not to pay attorney fees, etc. There was no stipulation by the parties that Judge Spra-gue, the successor judge, could decide the present motion upon reading and considering the transcript and exhibits, and nothing in the record indicates that he did resort to the transcript.

Section 452.355, RSMo 1969 provides that “[t]he court from time to time after considering all relevant factors including the financial resources of both parties may order a party to pay a reasonable amount * * * for attorney’s fees * * *but we find no statute governing the situation where a successor judge takes jurisdiction under the circumstances of this case. Rule 79.01 does not apply, for that rule deals with the power of a successor judge to perform duties to be performed after a verdict is returned or findings of fact are filed, where the predecessor judge leaves office before performing those duties. Here the predecessor judge, before leaving office, rendered final judgment on all matters then pending in Case No. 38921. The present motion, involving an entirely new phase of the case, was filed after the predecessor judge left office. Much of the evidence contained in the transcript available to the successor judge bears on the issues raised in the present motion, but to use that evidence the court would be required to weigh and compare the oral testimony of witnesses without having had the opportunity to hear and observe those witnesses on the stand. We adhere to the rule that under these circumstances, in the absence of a stipulation agreeing to such a procedure, a successor judge is without power to render a decision or judgment upon testimony heard by his predecessor. Anno: Power of Successor or Substituted Judge, in Civil Case, to Render Decision or Enter Judgment on Testimony Heard by Predecessor, 22 A.L.R.3d 922, § 3(b), p. 929, et seq. Since there was no stipulation that Judge Sprague could decide the motion by reading and considering the evidence in the transcript; since no evidence was presented to him personally on the motion, and since as a general rule a judgment or order must be based upon evidence, 17A Mo.Dig. Judgment 49 C.J.S. Judgments § 44, and since in order to allow counsel fees and suit money in a suit of this nature “there must be ‘evidence establishing the need of the wife to have the expense of the litigation borne by the husband,’ ” McFadden v. McFadden, 477 S.W.2d 722, 725[5, 6] (Mo.App.1972), the court erred in ruling on the motion without any evidentiary basis therefor.

The order of December 29, 1976 is reversed, and the motion for an attorney fee and expense money on appeal is remanded to the circuit court for a hearing at which both parties may present evidence on the matter.

SIMEONE, C. J., and ALDEN A. STOCKARD, Special Judge, concur.

      . This is true not only in cases involving custody of children, Lewis v. Lewis, 301 S.W.2d 861 (Mo.App.1957); S_v. G_, 298 S.W.2d 67, 74[2] (Mo.App.1957), but also in cases involving money matters. Wonneman v. Wonneman, 305 S.W.2d 71, 78[6] (Mo.App.1957).


author: PRITCHARD, Presiding Judge.

text:
    JACKSON COUNTY, Missouri, Appellant, v. Norma Jean HALL, Respondent.
    No. KCD 28490.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.
    Willard B. Bunch, County Counselor, Tom J. Helms, Sp. County Counselor, Kansas City, for appellant.
    Robert L. Langdon, Lexington, for respondent; Bradley, Skelton & Schelp, Lexington, of counsel.
    Before SWOFFORD, C. J., DIXON, J., and PRITCHARD, P. J.
   PRITCHARD, Presiding Judge.

By an amended petition filed February 13, 1973, Jackson County sought to condemn approximately 85 acres of land owned by respondent for public use for a project known as the “Mouth of the Little Blue Park.” The property lies to the southeast of the confluence of the Little Blue River and the Missouri River, northwesterly from Sibley in eastern Jackson County, Missouri.

The principal issue is whether the trial court abused its discretion in refusing to permit Jackson County further to amend its petition on the day of trial, September 29, 1975, to reserve to respondent an easement of ingress and egress 25 feet in width from the termination of Galvin Road on the north and then running along a road on top of an existing levee in a southeasterly direction, “limited to agricultural and farm machinery, farm vehicles and equipment, and for no other use” to respondent’s remaining 120 acres. The 120 acres was partially landlocked without the levee road for farm machinery use because of the insufficiency' of two bridges over the railroad right-of-way on Patton Road which runs north along the southeastern side of the 120 acres.

Counsel for Jackson County first asked for a continuance, which was denied, stating to the court that this was the first time it had come to his attention that respondent was relying upon remainder damages because of the limitation of accefes to the remaining 120 acres. After the jury was selected, Jackson County offered this amendment:

“Paragraph 12.20 Plaintiff reserves and excepts to defendant, Norma Jean Hall, her heirs, grantees and assigns, an easement of ingress and egress twenty-five feet in width to defendant’s remaining property beginning at the termination point of Galvin Road and running along the usual route thereof to the road located on top of the levee as it now exists, thence generally in a southeasterly direction to defendant’s remaining land in the northeast quarter of the southwest quarter of Section 27, Township 51, Range 30, provided however, that defendant’s use of the above described easement shall be limited to agricultural and farm machinery, farm vehicles and equipment, and for no other use.
“Paragraph 12.21 The aforesaid easement shall terminate if and when the two bridges located over the Atchison, Topeka and Santa Fe Railroad right-of-way on Patton Road are repaired, improved or replaced so as to accommodate wide and heavy loads. * *

At the time the amendment was offered, respondent objected upon the grounds that it was “unclear insofar as the legal description and the placing of this road, it’s not clear as to where it begins, it’s not clear as to where it runs, and it may be somewhat clearer as to where it ends, but I don’t think a surveyor could go out there and survey this road. * * * [1]⅛⅛ inviting a lawsuit somewhere down in the future regarding contingencies upon when these bridges may be able to accept certain types of machinery. It also is vague as to the type of machinery and the width of machinery that may be taken across there. * * * [F]or the reason that this does very little because it doesn’t give us the right to maintain this easement, and we accept it in the same condition as Jackson County wants to leave it, which means it could mean no use whatsoever if it happens to be a muddy or a wet year.” Further objection was lodged against the timeliness of the proposed amendment, that the jury had been picked, awaiting opening statements, that the case had been prepared by respondent based upon the existing pleadings, which had been on file since 1973.

Jackson County relies upon several cases which say that it is an abuse of discretion for a trial court to refuse an amendment to a petition in condemnation where the amendment seeks to take less or fewer rights from the condemnee. See the leading case of St. Louis K. & N. W. Ry. Co. v. Clark, 121 Mo. 169, 25 S.W. 192 (banc 1893), where by way of offered stipulation, the railroad would construct and maintain for the use of the landowner, his heirs and assigns, two crossings located as the landowner should select, each 24 feet wide, with planks securely spiked to crossties, spaces to be filled with macadam or gravel to a depth of not less than 6 inches. The court sustained an objection to the offered stipulation, and the case was tried on the theory that the landowner was not entitled to have a crossing or crossings. Held, the court erred in excluding the stipulation because: “[I]f it [the company] sees fit to reserve two open crossings for the defendant’s use, we can see no reason why the reservation may not be made, and the damages then assessed on the basis that the defendant retains that interest in the land. The statute very justly and properly places restrictions upon the exercise of the right of eminent domain, but it does not follow, by any correct reasoning, that the condemning company is bound, in all cases, to go to the full extent of the law. * * * The reservation of the easement being made, the damages are assessed in view of the interest thus retained and not condemned. The company pays for what it needs and takes, and the landowner is allowed all the damages which he in fact sustains.” 25 S.W. 198 (Brackets added.) The facts of the Clark case, the offering of an easement to reduce the damage occasioned by the condemnation, are analogous to the facts here. See also State ex rel. Highway Commission v. Wright, 312 S.W.2d 70, 73 — 74[3] (Mo.1958); Union Electric Co. v. Levin, 304 S.W.2d 478, 483 (Mo.App.1957); State ex rel. Morton v. Allison, 357 S.W.2d 733, 737[5] (Mo.App.1962) (transferred, see State ex rel. Morton v. Allison, 365 S.W.2d 563, 565[3, 4] (Mo. banc 1963); State ex rel. State Highway Commission v. Stotko, 365 S.W.2d 64, 67[3, 4] (Mo.App.1963), all following the Clark case, supra. See also 29A C.J.S. Eminent Domain § 265, p. 1124, et seq.

Concerning the proffered amendment, these facts are in evidence: As noted, counsel for Jackson County told the court on the day of trial that it was the first time he had knowledge of the fact that respondent was claiming damages to her remaining 120 acres by reason of loss of access over the levee road. James P. Fern, an appraiser for Jackson County, testified that he began his appraisal work on the land in question late in 1971, the date of its taking by condemnation being March 19, 1973. Mr. Fern had talked with respondent’s husband, who died in an accident March 21, 1973. Mr. Fern did not take into account in his appraisal that access to the 120 acres would be cut off. He was assured that respondent would be given access — he was instructed by Jackson County in the preparation of his appraisal to assume that Mr. and Mrs. Hall or their heirs would be able to get in through the Galvin Road side. More specifically, Mr. Fern’s notes recited, “ ‘The appraiser has been instructed by the client to consider that an easement for access will be granted from Galvin Road extending along the top of the levee to the remainder tract to permit access for heavy machinery. This easement will continue until such a time as one of the two bridges across the railroad is improved to permit the easy movement of heavy equipment. Therefore, no severance damage to the remainder by virtue of the loss of access from Galvin Road has been considered.’ ”

By way of offer of proof upon objection to his proffered testimony, James Flanagan, who was a commissioner in the condemnation matter, testified that he met with Mr. and Mrs. Hall on December 12, 1972, at which time they told him of their problem in getting expensive machinery across the bridges after the taking. The commissioners were then advised by Jackson County that it would give a right for agricultural use only. The award, which was delayed because of litigation between the Halls and the Downses, was made March 19, 1973, and did assume that the Halls would have access to the (remaining) property for agricultural machinery from the Galvin Road gate onto the levee. Although counsel for Jackson County stated to the court that he was present at the meeting, it nowhere appears that he had knowledge of the easement matter, or that he was directed by Jackson County to amend its petition reserving the easement to respondent, at least until trial.

Of course, it was detrimental to respondent to be required to prepare her case on the basis of no easement of access being reserved to her, as based upon the petition as filed since 1973. For this reason, delay in amending a petition to condemn less than therein set forth is not to be encouraged. Nevertheless, the Clark case, supra, and others, hold that a petition may be amended to reduce the extent of taking at the trial, and that it is an abuse of discretion for the trial court to refuse the amendment. This court, being bound by the pronouncements on the subject by the Missouri Supreme Court en banc case of Clark, supra, and others following it, has no alternative than to reverse and remand this case for new trial upon the amended petition, if again offered by Jackson County. Cases cited by respondent holding that whether an amendment should be permitted is largely within the discretion of the trial court, are distinguishable. State ex rel. State Highway Commission v. Dunard, 485 S.W.2d 657 (Mo.App.1972), held it was proper for the trial court to have permitted an amendment to provide for a future access to the remaining tract. State ex rel. Morton v. Allison, 365 S.W.2d 563 (Mo. banc 1963), had in it the issue of whether an abandonment of a first petition, and a refiling of the condemnation suit within 2 years (as prohibited by Rule 86.06) was done by reason of good faith mistakes, or for the purpose of harassment of the landowners, which facts the trial court was directed to ascertain.

The offered amendment, reserving an easement of access to respondent to her remaining 120 acres, is not vague and indefinite so as not adequately to apprise her of exactly what was being taken. The easement begins at the end of Galvin Road, a fixed, ascertainable point, thence runs atop the existing levee through the 85 acres condemned to the boundary of the remaining 120 acres. It is true that the proposed easement is to be terminated if and when the two bridges located on Patton Road are repaired, improved or replaced so as to accommodate wide and heavy loads. What is sought to be offered respondent by reservation to her is a determinable easement. “An easement may be created which will terminate, or which may be terminated, upon the happening of a particular event or contingency, or upon the occurrence, breach, or nonperformance of a condition, which limitation or condition will be enforced unless it is not sufficiently definite and certain or is contrary to a law or public policy.” Anno. — Express Easement — Duration, 154 A.L.R. 5, 22[IV, a], and see also, page 11[III]; and page 33(c) of the same annotation. Factors here which may be considered by the jury upon retrial are the determinable nature of the easement reserved to respondent (and her heirs and assigns); and the necessity of a possibility of a future factual determination of the adequacy of the bridges over the railroad on Patton Road to accommodate the size and type of farm machinery and equipment contemplated for use on the remaining 120 acres, upon any future issue of the termination of the easement over the levee road as reserved.

Other issues bear upon the sufficiency of the evidence of comparable sales in the vicinity of the land condemned. The parties have briefed those issues so they are adequately apprised to deal with them upon new trial. They therefore need not be discussed.

The judgment is reversed and the case is remanded for new trial.

All concur.


text:
    STATE of Missouri, Respondent, v. Thomas PFLUGRADT, Appellant.
    No. KCD 28903.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.

      Downs & Pierce, John E. Downs, St. Joseph, for appellant.
    John D. Ashcroft, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
    ANDREW JACKSON HIGGINS, Special Judge.
    Appeal from conviction by a jury of exhibiting a deadly weapon in a rude, angry, or threatening manner. The questions are whether the court should have declared a mistrial because of a venireman’s comment during voir dire; and whether the court should have given an instruction on common assault. Affirmed.
    Appellant does not question the sufficiency of evidence to sustain his conviction. His statement of facts demonstrates a case of exhibiting a deadly weapon in a rude, angry, or threatening manner as charged and submitted under Section 564.610 RSMo 1969:
    On July 18, 1975, at 9 p. m., Thomas Pflugradt and his wife, Brenda, were present at Fox’s Tavern in a predominantly black neighborhood at 18th and Messanie, St. Joseph, Missouri. Defendant, a beer truck driver-salesman, as part of his employment, engaged in promotional activity with reference to the retail establishments that he served. On the evening in question, he was wearing his uniform.
    Defendant and his wife left the table at which they had been sitting and went to a pool table for about fifteen minutes. Upon returning to their table, defendant’s wife discovered that some money and keys she had left on the table were missing. The keys were for defendant’s car and homes of the families of defendant and his wife. Distressed by the disappearance of the keys, defendant approached Doyle Rucker, an off-duty policeman who was present in the bar. Conversation with Officer Rucker occurred at approximately 9:30 p. m. Rucker did not assist defendant in locating the missing keys but suggested that defendant call a police squad car and report the missing keys. He further suggested that defendant search for the keys in the restroom trashcans.
    Defendant and his wife left the tavern at approximately 10 p. m. and went home, where he obtained a shotgun. They then proceeded to the home of a friend, Danny Wolfe, who, with one Mike Hogan, returned with defendant and his wife to the tavern. Upon their arrival, defendant entered the tavern with his shotgun and made a demand (in abusive, vulgar, and degrading language) to the tavern patrons for the return of his keys. Defendant thereafter fired the shotgun into the ceiling of the tavern.
    Fred Moore, one of the patrons at whom the gun was pointed, was sitting at the bar at about 11 p. m. when Thomas Pflugradt entered the tavern with a gun and demanded his keys, after which Moore left the tavern. Before his departure, Moore was “looking right down the barrel” and described the gun as a single-barrel gun with a “shiny part.” With respect to defendant’s demand for his keys, Moore said that defendant “wasn’t talking to nobody in particular,” but was talking to “everybody that was in the place.”
    After his exit from the tavern, Moore stopped to report the incident to off-duty police officer Rucker who was then outside the tavern in a nearby parked car, then proceeded to a nearby house to call the police. Moore was unable to gain admittance to the house and did not call the police, but Rucker did go to the same house later and called the police station.
    Immediately after the shot was fired defendant’s wife left the car in which she, defendant, Wolfe, and Hogan had arrived, went into the tavern and found her husband. Both then left the tavern and were apprehended by police officers before they reached their car.
    Defendant testified that he threw his shotgun into the weeds behind the tavern before being arrested.
    Officer Rucker had seen defendant and his wife leave the building after the shot was fired and walk west from the tavern with a shotgun in his hand. They then went around the corner of the building. Almost immediately, two police cars arrived; Rucker sent the arriving officers after the defendant. Rucker next saw one Tony Gannaway appear from around the east side of the building with a shotgun, which was retrieved by Rucker after pursuit and a “tussle,” during which the gun discharged. Rucker had no personal knowledge of the manner in which Gannaway gained possession of the gun taken from Gannaway, but stated it was the same gun that defendant had previously had.
    Appellant contends the court erred in denying his motion for mistrial during voir dire “because of an inflammatory, prejudicial and unsubstantiated charge made by venireman Parker in the presence of the entire venire from which the jury was chosen.”
    This contention arises from the following portion of the voir dire examination of venireman Daniel Parker:
    “Q [by Mr. Insco for the State] Do you think the fact that you are close in age to Mr. Pflugradt would make it difficult for you to sit as a juror here and assess his punishment? A No. But I don’t believe— The more I look at him, I believe I know him. I mean, I don’t know him, personally, but I have seen him. Q Well, how do you know him, do you think? A Well, it could be — I think I have witnessed something similar to what he has been accused, but it wasn’t at that place. Q Where was that? A The Swan Tavern, I believe, about three years ago. Q Do you feel that you could sit here and fairly and impartially listen to the evidence and — A No, I don’t think I could.
    “MR. DOWNS: I would like to make it abundantly clear that there was no such incident with Mr. Pflugradt at all. MR. PARKER: Well, I don’t know. MR. DOWNS: No. We would like to approach the bench. THE COURT: Come up, please.
    “(The following proceedings were had outside the hearing of the jury panel):
    “MR. DOWNS: We are right back where we started. We now have a situation where this juror says he has seen Mr. Pflu-gradt — THE COURT: No; he said a man. He said he thinks he knows Mr. Pflugradt. MR. DOWNS: In a similar incident, which would mean with a firearm, in the Swan Tavern. THE COURT: Well, all right. MR. DOWNS: And that is absolutely untrue; no such incident, directly or indirectly, or anything which could remotely — THE COURT: All right, make your motion. MR. DOWNS: I make a motion for a mistrial. THE COURT: Well, we will take it up. Step aside.
    “(The proceedings returned to open court):
    “THE COURT: Mr. Parker, Mr. Pflu-gradt and Mr. Downs want to assure us this is not true, that you made a mistake in identity. This could be very damaging to say that he had done something like this once before and hadn’t been convicted. Are you satisfied in your own mind 100% that the guy you say — MR. PARKER: No, I’m not. Like I say, I didn’t see the people very well. THE COURT: Well, they say that it’s not true. Are you willing to accept that? MR. PARKER: Yes, sir, I am. THE COURT: Do you think it will bother you at all, after having been assured by the Court that who you saw was not this man, or if you think it might bother you the slightest bit, we will excuse you? MR. PARKER: I do feel it might bother me. THE COURT: I can see where it would. You will be excused. Were you here last week? MR. PARKER: Yes, sir. THE COURT: All right. You can be finally excused, then, now. (Mr. Daniel Parker excused.) THE COURT: Now, Mr. Parker has stated to us in the presence of everyone that he is not sure this is the man he saw, but he feels it would still bother him, and I can see where it would. Let me ask this: If Mr. Parker was mistaken, and he probably was, he doesn’t know for sure, but evidently he saw some incident similar, although he doesn’t know because he hasn’t heard any evidence — I haven’t either, so I don’t know what happened either, but is there anybody here on this panel that thinks this would bother them, that it would affect your judgment one way or the other? (No response.) If you do, would you please raise your hand, if anybody thinks it would bother them or affect their judgment? (No response.) All right. Thank you very much. You may proceed, Mr. Insco.
    “(The following proceedings were had outside the hearing of the jury):
    “MR. DOWNS: Your Honor, I think the interrogation by the Court emphasized rather than diminished the damage which has been irretrievably done to this jury panel, and we again ask that there be a mistrial and to draw a new panel. THE COURT: Motion denied. Let’s proceed.”
    Appellant argues that the foregoing tainted defendant’s presumed innocence before the trial began, and “must have had the effect of suggesting to the venire that [he] was inclined to commit the crime with which he was charged.” He argues also that Parker’s statements “were tantamount to testimony by a de facto witness who was neither sworn upon his oath nor subjected to cross-examination.” This, he asserts, was a denial of his Sixth Amendment guarantee of the right of an accused to confrontation of witnesses. He asserts also that Parker’s statements were emphasized in the State’s closing argument. However, defendant made no objection to the referenced argument, and the point is not for review on that account, State v. Spencer, 486 S.W.2d 433 (Mo.1972); State v. Larkins, 518 S.W.2d 131 (Mo.App.1974).
    Grant of a mistrial is a drastic remedy, State v. Johnson, 504 S.W.2d 23 (Mo.1973), State v. Camper, 391 S.W.2d 926 (Mo.1965); is granted only in those circumstances where the alleged prejudice can be removed in no other way, State v. Goff, 490 S.W.2d 88 (Mo.1973), State v. Pruitt, 479 S.W.2d 785 (Mo. Banc 1972); and grant or refusal of a mistrial lies within the discretion of the trial court, State v. Phelps, 478 S.W.2d 304 (Mo.1972). The trial court is accorded discretion in determination of qualifications of veniremen and doubts about their qualifications are resolved in favor of the determination made by the trial court. State v. Wilson, 436 S.W.2d 633 (Mo.1969); State v. Wraggs, 512 S.W.2d 257 (Mo.App.1974); State v. Harris, 425 S.W.2d 148, 155 (Mo.1968). This record shows that the trial court asked all other veniremen if their judgment would be affected by the Parker incident and received no response. Such action was within the discretion accorded the trial court in determination of qualifications of jurors, and has been upheld in similar circumstances. See e. g., United States v. Carter, 528 F.2d 844 (8th Cir. 1975); State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688 (1951). Cf. State v. Romprey, 339 S.W.2d 746 (Mo. Banc 1960).
    Appellant charges the court erred in refusing to give his instruction “relating to the lesser included offense of common assault.” He argues there was evidence to show common assault because it conflicted as to the location of witness Moore at the time the shotgun was discharged and that it may not have been exhibited in a. rude, angry, or threatening manner in Moore’s presence.
    The statement of this case demonstrates that defendant entered Fox’s Tavern with a shotgun, used abusive and threatening language to the patrons including Fred Moore, and demanded the return of his wife’s keys. After continuing his tirade for several minutes, defendant discharged his gun into the ceiling and left. Such evidence does not show commission of common assault as defined, § 559.220 RSMo 1969: “Any person who shall assault or beat or wound another, under such circumstances as not to constitute any other offense * * *.” It does show that defendant was guilty of the offense charged or of nothing. The case is thus similar to State v. Morris, 523 S.W.2d 329 (Mo.App.1975), where defendant displayed an open knife on a crowded bus and threatened some of the passengers. The trial court’s refusal to give an instruction on common assault was affirmed: “When the evidence shows, as it does here, guilt of the more serious crime charged, and no other interpretation of defendant’s conduct is reasonably possible, and there is nothing to justify a finding of common assault only, defendant is not entitled to an instruction on common assault.” 523 S.W.2d l.c. 332.
    Judgment affirmed.
    All concur.