text:
    De Witt TAYLOR, Plaintiff-Appellant, v. Col. Theodore McNEAL et al., Defendants-Respondents.
    No. 35815.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 6, 1975.

      Fred Roth, Rothman & Roth, Clayton, for plaintiff-appellant.
    Jack L. Koehr, City Counselor, John J. Morton, Asst. City Counselor, St. Louis, for defendants-respondents.
   RENDLEN, Judge.

Plaintiff appeals from an order of the Circuit Court of the City of St. Louis denying replevin. The order leaves possession of two pistols and other personal property in the defendants as members of the Board of Police Commissioners and the Chief of Police of the City of St. Louis. As a record here, the parties submitted a stipulation of facts supplemented by exhibits, pleadings and testimony of two witnesses.

On February 10, 1973, officers of the St. Louis Police Department came to plaintiff’s home at the request of a member of plaintiff’s family who reported a disturbance. The record does not disclose the nature of the disturbance or which member of the family called. While at plaintiff’s home the officers seized two pistols and ammunition clips from plaintiff’s “person” and “from the inside of the residence” but there is no indication that plaintiff or any member of his household was arrested or charged with a crime. We conclude they were not. When plaintiff later requested return of the pistols, defendants refused until plaintiff obtained permits from the sheriff in accordance with § 564.630.

Plaintiff applied for permits but the sheriff refused unless he received written assurance or authority from defendants that they (defendants) had no objection to release of the pistols. Defendants in turn declined to provide such written authority on the ground that § 564.630(2) grants the sheriff sole discretion for issuance of the permits.

Caught in this administrative maze, plaintiff sought replevin in the Magistrate Court for return of his property. After judgment for plaintiff, defendants appealed to the Circuit Court where on trial de novo judgment was entered for defendants, and the reason assigned was the want of statutory permits from the sheriff.

Replevin is primarily a possesso-ry action for personal property, the gist of which is plaintiff’s right to immediate possession and defendants’ wrongful detention of the property. Title may incidentally become involved in cases where ownership is actually tried, but not as here where the issue was neither pleaded nor adjudicated. Strothkamp v. St. John’s Community Bank, Inc., 329 S.W.2d 718, 719 (Mo.1959).

Defendants do not deny plaintiff’s claim of ownership nor attempt to justify the detention by asserting any possessory or property right of their own. The pistols in question are not contraband, In re 1969 Plymouth Road Runner, Black, 2-Door, 455 S.W.2d 466, 470-471[3] (Mo.1970), and defendants make no claim that replevin does not lie because plaintiff’s possession is unlawful, as in the case of certain alcoholic beverages, Windham v. Harmon, 50 Ga.App. 322, 178 S.E. 160 (1935), or gambling apparatus, Clark v. Holden, 191 Miss. 7, 2 So.2d 570 (1941). Under Art. I, § 23, Mo. Const.1945, V.A. M.S., every citizen has the right to keep and bear arms in defense of his home, person and property, with the limitation that this section shall not justify the wearing of concealed arms. However, possession of concealable firearms in one’s home is not unlawful in our state. See In re 1969 Plymouth Road Runner, supra.

Defendants have justified their refusal to return the pistols solely on the ground that § 564.630 prohibits them from delivering and plaintiff from receiving concealable firearms sans permits from the sheriff authorizing plaintiff to receive the weapons, and the Circuit Court rested its order on that single proposition. The court interpreted the statute as limiting its authority and stated it was “prohibited by law” from ordering replevin.

We disagree and hold that § 564.630 does not apply to delivery and receipt of concealable firearms lawfully seized from or voluntarily relinquished by one in lawful possession to a peace officer properly in performance of his duty, nor their redelivery by the peace officer to such person after the lawful purpose of the seizure had been served. Mere seizure by the police, which involves only temporary custody, does not change title nor right of possession to the property seized.

Under these facts the personal property (two pistols and ammunition clips) is subject to proper order of the court; to otherwise construe this statute would produce absurd results which become apparent in the following situations.

Here the police seized the pistols from plaintiff who peacefully delivered or relinquished possession in his home; yet the officers made no effort to obtain permits from the sheriff nor deliver such permits to plaintiff before the seizure. Similarly, during the course of this proceeding, defendants delivered the pistols to the sheriff who received them without first acquiring permits from himself as sheriff. If plaintiff had delivered the pistols to his favorite gunsmith for repair, permits from the sheriff would not be contemplated. In such situations, it cannot reasonably be suggested the statute should or was intended to apply.

Examining other situations, we find examples of statutes in apparent conflict with a literal interpretation of § 564.-630. In such cases, statutes should be harmonized if possible so they may stand together. Edwards v. St. Louis County, 429 S.W.2d 718, 721 [2] (Mo. banc 1968); Flarsheim v. Twenty Five Thirty Two Broadway Corp., 432 S.W.2d 245, 251[3-5] (Mo.1968). For example, under H.C.S. S.C.S. Senate Bill No. 366, § 9, when allegedly stolen property “comes into the custody of an officer” and has not been returned to the person entitled to possession, it shall be delivered by such officer under “order of court” to such person establishing his right to possession. This newly enacted statute contains no suggestion of permit requirements relating to transfer, delivery or receipt of property which might come into the custody of an officer under § 9.1 nor in relation to delivery of such property by order of court under § 9.1(1) et seq. Certainly if the property, referred to in the statute, coming into the possession of an officer is a handgun, that officer need not obtain a permit before receiving such property nor would the court in that situation be controlled by the provisions of § 564.630 when ordering the officer to return the gun to its rightful owner or such other person who is entitled to possession.

In each of these instances literal construction of § 564.630 would reach an absurd and unreasonable result. The intention of the legislature must be that the statute does not apply in such cases and the manifest intent of a legislative enactment will prevail over the literal sense of its terms. State ex rel. Kirks v. Allen, 255 S.W.2d 144[2] (Mo.App.1953); Carson v. Oxenhandler, 334 S.W.2d 394, 398 (Mo.App.1960). Construction of statutes should avoid unjust, unreasonable, absurd or confiscatory results. State ex rel. Stern Bros. & Co. v. Stilley et al., 337 S.W.2d 934[3] (Mo.1960).

Respondents would have us hold that this case is analogous to the transfer of automobiles under § 301.210 which voids a transfer in the absence of a valid certificate of title. However, the situations are clearly distinguishable. § 301.210 specifically mandates documentary evidence of title in derogation of common law and the Uniform Commercial Code which provide for transfer of ownership according to the intentions of the parties, without the necessity of documentation unless required by the parties. § 400.2-401; Turner Looker Liquor Co. v. Hindman, 232 S.W. 1076 [1] (Mo.App.1921), affirmed, 250 S.W. 388. No such requirements are present in § 564.630 and the special provisions of the motor vehicle registration laws are not applicable here. The absence of such provision in the gun permit statute indicates the legislature’s intent was to require a permit with penal provision for violation but not to destroy ownership or void a transfer made without such permit.

We note that when plaintiff originally acquired these pistols he did so in possible violation of § 564.630 as he made no application for the required permits. This may involve application of the penal provisions of the statute but does not affect his ownership or right to immediate possession as against defendants.

Accordingly, the judgment is reversed and the cause remanded with directions to enter judgment for plaintiff ordering return of the property to him.

WEIER, P. J., and DOWD and CLEMENS, JJ., concur.

      . All references are to RSMo. 1969 unless otherwise indicated.
      § 564.630 provides in part: “1. No person, other than a manufacturer or wholesaler thereof to or from a wholesale or retail dealer therein, for the purposes of commerce, shall directly or indirectly buy, sell, borrow, loan, give away, trade, barter, deliver or receive, in this state, any pistol, revolver or other firearm of a size which may be concealed upon the person, unless the buyer, borrower or per-ón receiving the weapon shall first obtain and deliver to, and the same be demanded and received by, the seller, loaner, or person delivering the weapon, within thirty days after the issuance thereof, a permit authorizing the per-ón to acquire the weapon. 2. The permit shall be issued by the sheriff of the county in which the applicant for a permit resides in this state, if the sheriff be satisfied that the person applying for the same is of good moral character and of lawful age, and that the granting of the same will not endanger the public safety . . . ” The section further provides a thirty-day period of validity and administrative detail concerning content and handling of the permits. Subsections 3 and 4 deal with the expiration of permits and the alteration, falsification and transfer of permits and applications. Subsection 5 exempts antique firearms from the effect of the statute.

      . Proceeding under Supreme Court Rule 33.03, Y.A.M.R., the court ordered the return of a shotgun with sawed barrels which had been unlawfully seized under defective search warrant.

      . “SECTION 9. 1. Unless the statute authorizing seizure provides otherwise, property which comes into the custody of an officer or of a court as the result of any seizure and which has not been returned to the claimant shall be disposed of as follows : (1) Stolen property, or property acquired in any other manner declared an offense by chapters 560 and 561, RSMo, but not including any of the property referred to in subsection 2 of this section, shall be delivered by order of court upon claim having been made and established, to the person who is entitled to possession . . ”
      In September, 1973, when judgment was rendered in the trial court, § 542.310, containing provisions similar to Senate Bill No. 366, was in force. Under § 542.310, when allegedly stolen property came “into the custody of any sheriff’ (emphasis ours) or other officer named in the statute, he was authorized to hold it subject to orders of court or the order of other officers authorized to direct the disposition thereof.


source: Caselaw Access Project

author: NORWIN D. HOUSER, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. James JONES, Defendant-Appellant.
    No. 36245.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 6, 1975.

      Jerry Lybarger, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

A jury convicted James Jones of Carrying a Concealed Weapon. § 564.610, RSMo 1969, V.A.M.S. Committed to the department of corrections for five years he appeals, contending first that the court erred in not directing his acquittal for failure of the State to prove the element of concealment, which is an essential element of the offense of carrying a concealed weapon. State v. Starks, 459 S.W.2d 249 (Mo.1970).

The State introduced evidence that following a high-speed chase through the streets of the City of St. Louis in which an automobile driven by appellant was pursued by several police cars, appellant was finally forced to stop; that appellant stepped out of the car; that Officer Mok-wa approached appellant to arrest him; that when the officer approached appellant the officer could not see the gun (a .22 calibre automatic pistol which he found in appellant’s right front trouser pocket in the course of a search of appellant’s person). The officer pulled the pistol (which was loaded and in operating condition) from appellant’s pocket and seized it.

The test of concealment is whether the weapon is so carried as not to be discernible by ordinary observation. State v. Starks, supra; State v. Tate, 416 S.W.2d 103, 105 [2] (Mo.1967); State v. Bordeaux, 337 S.W.2d 47, 49 (Mo.1960). A jury could reasonably find that an officer bent on apprehending a fleeing man, approaching the subject with the object of placing him under arrest, would observe the subject with more than ordinary care to ascertain if he was armed, and that if under these circumstances the officer “could not see the gun” the gun was not “discernible by ordinary observation” and therefore was concealed.

In State v. Baumann, 311 Mo. 443, 278 S.W. 974 (1925), evidence that defendant “ran her hand in her overcoat pocket and pulled out a gun” was held sufficient evir dence to prove the allegation of concealment. Evidence that defendant “had a loaded revolver concealed in his pocket” was held to justify a conviction in State v. Athanas, 150 Mo.App. 588, 131 S.W. 373 (1910). In State v. Hovis, 135 Mo.App. 544, 116 S.W. 6 (Mo.App.1909), evidence that defendant was carrying a pistol in his right hip pocket was held to constitute carrying a concealed weapon upon his person. It is stated in 43 A.L.R.2d, Anno: Concealed Weapon, § 7, p. 522, that “The vast majority of the cases supports the proposition that a weapon in the pocket of the defendant is within the provisions of the statute, unless some particular circumstance rules otherwise.” There is no particular circumstance ruling otherwise in this case. Particularly in point on the facts are the following cases from other jurisdictions. In Thomas v. State, 9 Ala.App. 67, 64 So. 192 (1913), the arresting policeman testified that defendant put the pistol in his pocket, and that he (the policeman) “ran [his] hand in his hip pocket and got it; it was not visible.” This was held sufficient, if believed, upon which to predicate a finding that the pistol was hidden from ordinary observation. In Harms v. Commonwealth, 309 Ky. 772, 219 S.W.2d 8 (1949), the arresting officer put his hand in defendant’s right front pocket “and took a pistol off him.” Commenting that the officer could not see the weapon until after he had taken it from the subject’s pocket, the court held that if a weapon is in the pocket of a person he is guilty of a violation of the concealed weapon statute.

Appellant’s second point is that the court erred in not sua sponte declaring a mistrial; not instructing the jury with reference to proof of other crimes, and not stopping the State’s argument with reference to other crimes. Police were on a detail to apprehend unidentified and unde-scribed holdup men who had recently been “plaguing” a certain district of the city. Two officers in a parked police vehicle had a certain house under surveillance. They observed appellant and three other men come out from behind that house, get into a car parked nearby, and drive away. Appellant was the driver. The police began pursuit, attempting to stop the car by use of their siren. The car did not stop, but speeded up. After a chase covering several blocks the car slowed down and a man in the back seat threw a brown bag out of the car, then speeded up again. The police car slowed down. One of the police officers dismounted and retrieved the brown bag, which contained a pistol. The driver of the police car continued the pursuit without waiting for the officer who dismounted. Three or four other police cars were summoned by radio and joined the chase, during which the car driven by appellant attained speeds of 50-65 m. p. h. The speed limit in that area was 25 m. p. h. Finally the lead car was brought to bay and skidded to a stop. The four men got out of the car and started to flee but were apprehended and arrested. In opening argument the circuit attorney, referring to the high-speed chase in the city streets, in an effort to explain “what kind of guns” he was talking about when he was picking the jury, said, “I’m not talking about four men going hunting. I’m not talking about four gun collectors. I’m talking about four men who entered a car and when the officers tried to pull them over took off at high speed over twice the speed limit, and began to chase them. A siren couldn’t stop them. Those are not four men out on a hunting trip. * * * ”

No objection or request for a court ruling was made by appellant with reference to the evidence or the argument. Assignments of error with respect to the admission of evidence, State v. Thomas, 438 S.W.2d 174 (Mo.1969); 24 C.J.S. Criminal Law § 1672, c., p. 1089; or to an argument, State v. Cheek, 413 S.W.2d 231 (Mo.1967), relating to other crimes committed by the defendant, not objected to at the trial, are not preserved for appellate review.

Admitting this, appellant asks for review under the plain error rule, citing cases for the undoubted general rule that evidence which tends to prove other crimes is inadmissible. Appellant does not make clear what “other crimes” he is referring to. First let us assume that he refers to the holdups. For a reason not disclosed by this record the officers’ attention had been drawn to the house in the 1400 block of Prairie Avenue where the four men were first seen. The officer’s testimony that he and his partner were “on a detail to attempt to apprehend the holdup men that had recently been plaguing the district” apparently was given to account for the physical presence of the two officers. The difficulty is that no witness testified that appellant committed any of the holdups in question, or was implicated in or a suspect in connection therewith. In the cases cited by appellant the other crimes were shown to have been committed by the defendant. In order to invoke the rule of exclusion there must be evidence that the defendant has committed, or has been accused of, charged with, convicted of, or been definitely associated with, another crime or crimes. There is no such evidence in this case; nothing to show any nexus between appellant, the house under surveillance, and the holdups. As far as appears from this record appellant’s appearance on the scene as he came around the house and entered the car was wholly fortuitous and entirely innocent of any connection with the holdups. The rule of exclusion does not apply when there is no evidence linking the accused with the other crimes.

Next let us assume that in protesting against the evidence of other crimes appellant refers to the traffic offenses shown to have been committed by appellant as he sped through the city streets exceeding the speed limit and violating other traffic laws. This reference avails appellant nothing for the reason that this was a part of the res gestae — the traffic violations were part and parcel of one continuing series of events: the pursuit, apprehension, arrest, and search of appellant. Significantly, appellant has not raised questions of probable cause and warrant-less search and therefore questions as to the validity of the arrest and search are not before us. See State v. Perry, 499 S. W.2d 473 (Mo.1973).

For these reasons the rule of exclusion appellant relies on has no application in this case.

Nor was there error in the circuit attorney’s argument to the jury. A necessary element of a conviction under § 564.610, supra, is the intention to carry a weapon concealed. State v. Hall, 508 S.W.2d 200 (Mo.App.1974). The State was entitled to argue that the guns were not being carried for legitimate purposes, such as hunting or gun-collecting, but were being carried for unlawful purposes, as bearing upon the question of the intent with which they were being carried. The argument did not necessarily imply that the police were dealing with four holdup men.

Accordingly, the court did not err in not sua sponte declaring a mistrial when the unob j ected-to testimony was adduced; in not instructing the jury on the subject of other crimes committed by appellant, and in not interrupting the unob j ected-to argument. Our review under Rule 27.20(c), V.A.M.R., does not reveal manifest injustice done or that a miscarriage of justice resulted from the testimony and the argument, or from the failure of the court to take the actions for which appellant now for the first time on appeal contends.

Judgment affirmed.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . State v. Summers, 362 S.W.2d 537 (Mo.1962) ; State v. Griffin, 336 S.W.2d 364 (Mo.1960) ; State v. Atkinson, 285 S.W. 2d 563 (Mo.1955) ; State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (banc 1954).


author: TURNAGE, Judge.

text:
    BRAIN TRUST, INC., a Missouri Corporation, Plaintiff-Respondent, v. CITY OF RAYTOWN, Missouri, a Municipal Corporation, et al., Defendants-Appellants.
    No. KCD 26700.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.

      Richard T. Cole, Raytown, for defendants-appellants.
    James S. Cottingham, Independence, for plaintiff-respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

Defendant City appeals from an order of the circuit court in which the court declared, in a suit requesting a declaratory judgment, the action of the Board of Aldermen of the City, in denying plaintiff’s application for rezoning, to be arbitrary, unreasonable, discriminatory and confiscatory. The court ordered the City to rezone plaintiff’s property from District “R-2” to District “C-0”. The court further permanently restrained and enjoined the City from interfering with the plaintiff or anyone claiming by, through, or under it, in using plaintiff’s property under such commercial zoning.

This court finds the judgment of the circuit court to be supported by substantial evidence and affirms the same.

At the threshold of this case is a motion by the plaintiff to dismiss the City’s appeal for failure to follow the rules. The City has filed an amended brief, and while such brief is not a model of compliance with the rules, in the exercise of the discretion vested in this court, the motion to dismiss the appeal is overruled. It may be noted, however, that once again a failure to comply with the very plain and simple rules governing appeals has resulted in a motion, together with suggestions, being filed, and in the City filing two briefs in this court. It should now be manifestly clear that it is much easier, faster and less expensive to take the small amount of time required to examine the rules and to fashion an appeal in conformance therewith, than it is to disregard such rules.

Plaintiff began its efforts to rezone a vacant lot at the northwest corner of 76th Terrace and Raytown Road by filing an application with the City Planning and Zoning Commission. Plaintiff had previously filed an application to rezone this tract to District “C-2”, but following the hearing on that application, decided to withdraw such application and filed a new one asking for a change to District “C-0”.

The Commission held a hearing on the first application at which the only evidence introduced came from Robert C. Chiles, president of the plaintiff corporation. Mr. Chiles pointed out the property adjoining his lot to the north was zoned and used for commercial purposes from the north line of his property to Highway 50. The property on the east side of Ray-town Road across from the plaintiff’s lot was likewise zoned and used for commercial purposes. The plaintiff’s lot was bounded on the south by 76th Terrace and on the south side of such street was single family residences. To the west of plaintiff’s lot the land was zoned for use for duplexes.

Mr. Chiles stated it was the desire of his company to construct an office building on his lot. The plaintiff’s lot was square, with 120 feet along Raytown Road and 101 feet along 76th Terrace. Mr. Chiles stated he planned to build an office building containing 1340 square feet, to be used in connection with real estate sales. The City requirements for off-street parking spaces for a building of this size would require seven spaces. Immediately to the north of plaintiff’s lot was a commercial building used principally for offices and north of that was another commercial building containing an insurance office, a franchise fried chicken operation and a dry cleaners, and at the intersection of Raytown Road and 50 Highway was a Safeway Store. All of these commercial structures have parking lots adjacent thereto.

At the hearing on the original application, no one else testified except Mr. Chiles. A hearing was held on the subsequent application, which is the subject matter of this lawsuit, and the transcript of the first hearing was introduced but no further evidence was heard by the Commission. There were no adjoining property owners or others who appeared at either Commission hearing to testify in opposition to the applications, although it was noted there was a letter received which stated some objection.

The Commission recommended to the Board of Aldermen that the plaintiff’s final application be denied. The Board of Aider-men considered an ordinance which would have rezoned plaintiff’s lot, and without hearing any evidence or holding any public hearing, the Board voted on such ordinance. The result of the vote was to defeat the ordinance which meant the zoning on plaintiff’s lot remained “R-2”.

On appeal to the circuit court, plaintiff produced Ralph Ochsner, who was qualified as a professional city planner. Mr. Ochsner testified as to the plaintiff’s lot and the surrounding territory resulting from his visit to the area. Mr. Ochsner further testified that in District “C-0”, any residential use would be permitted, together with non-retail office structures. Mr. Ochsner stated the property immediately north of plaintiff’s lot was zoned “C-2” which was an intensive retail-commercial zone. He further described 50 Highway as being in the expressway category, and Raytown Road as a major arterial street.

Mr. Ochsner further testified in his opinion there would be no detriment to the value of surrounding property by changing the zoning on plaintiff’s tract from “R-2” to “C-0”, and stated in fact he felt the commercial zoning on plaintiff’s tract would stabilize and enhance the value of surrounding property. He based this statement upon his opinion that a continued “R-2” zoning on plaintiff’s lot would mean a continuing effort to have it rezoned to commercial use since it was adjacent to existing commercial use, and due to the presence of a service station across Ray-town Road from plaintiff’s lot. He stated a commercial zoning with the construction of an office building would stabilize the value of the surrounding land without any diminution.

Mr. Ochsner further stated a non-retail commercial zoning on plaintiff’s lot would be a better buffer between the high intensify commercial use to the north of plaintiff’s lot and the single-family residences to the south and the duplexes to the west than would a duplex zoning. He based this opinion on the fact that he could not follow the reasoning which was implicit in a duplex zoning as being the buffer, because if it was bad for one family to live next to a commercial zone, it would not be any any better for two families to live in such location. His conclusion was that the highest and best use of plaintiff’s lot would be for a commercial office building.

Joe Dittmer also testified in the circuit court. Mr. Dittmer was an officer and stockholder in the plaintiff corporation and reiterated the plans of the corporation to build an office building.

The City introduced no evidence before the circuit court, nor, as stated before, the Planning and Zoning Commission or the Board of Aldermen. The transcript of both hearings before the Commission was introduced in the circuit court hearing, together with the minutes of the Board of Aldermen at which the ordinance to rezone plaintiff’s lot was defeated. The Board of Aldermen minutes did show that Richard B. Winner, City Zoning Administrator, favored the rezoning of plaintiff’s property and told the Board of Aider-men he did so because of the “C-2” zoning across the street and to the north of the plaintiff’s lot, and stated the “C-0” zoning of plaintiff’s lot would be a continuation of the “C-2” zoning.

By rule 73.01(3) V.A.M.R., this court is required to review this court-tried case upon both the law and the evidence as in suits of an equitable nature. In R.L.S. v. J.E.S., 522 S.W.2d 5 (Mo.App.1975) this court stated:

“The nature of review in equity cases has historically demanded that due deference be given to the findings and conclusions of the trial chancellor and that this rule of deference not be ignored ‘unless the evidence is palpably insufficient to sustain the findings’ ”.

The City’s first point on this appeal is that plaintiff failed to sustain its burden of proof and for that reason the judgment of the circuit court was not based upon substantial evidence. The recital of the evidence heretofore given, together with the fact there was no contrary evidence before the circuit court, gives ample answer to plaintiff’s contention. There was substantial evidence to support the trial court’s findings and judgment.

The City next contends the trial court simply substituted its judgment for the judgment of the Board of Aldermen of the City and this was not permitted the trial court to do. This claim of error is substantially the same as the first point which claims a lack of evidence upon which the court could base its judgment. It is already noted there was substantial evidence to support the judgment of the trial court.

In considering the City’s contentions, this court is mindful of the general rules concerning zoning cases. These rules are stated in Huttig v. City of Richmond Heights, 372 S.W.2d 833 (Mo.1963).

There the court stated at 838[2]:

“A zoning ordinance may be valid generally, yet invalid in its application to a specific tract. . . . Unless it should appear that the conclusion of the city’s legislative body in the respect and issue here is clearly arbitrary and unreasonable, we cannot substitute our opinion for that of the city’s Board of Aider-men. . . .If the city’s action in zoning the property is reasonably doubtful or even fairly debatable, we cannot do so”.

The court further stated at 842[5-8] : “[e]ach such case stands on its own facts and circumstances”.

Bearing all of these general principles in mind, it is still apparent the trial court came to the only conclusion which could be justified under the evidence which it had to consider. It may be additionally noted that the facts in Huttig are quite similar to the facts in the case at bar, and in that case the court held the action of the City in refusing to rezone was arbitrary and unreasonable. See also Ewing v. City of Springfield, 449 S.W.2d 681 (Mo.App.1970).

The City’s final point is that the plaintiff failed to show any decrease in value of its property by reason of the failure to rezone it and, therefore, the plaintiff, having failed to show that it suffered any loss, is not entitled to any relief. The City relies upon Wheeler v. City of Berkeley, 485 S.W.2d 707 (Mo. App.1972). In Wheeler the court recognized that one of the factors to be considered in these cases is whether or not the retention of the present zoning classification would work a financial hardship on the owner. In Huttig it was stated 372 S.W.2d at page 840 that this question of financial damage is by no means decisive, although recognizing that such question is one of the several questions to be considered.

Here, plaintiff’s evidence was that the highest and best use of this lot was for commercial purposes. In State National Bank v. Planning and Zoning Commission, 156 Conn. 99, 239 A.2d 528 (1968), the court stated at 530 [1-4]:

“The ‘highest and best use’ concept, chiefly employed as a starting point in estimating the value of real estate by appraisers, has to do with the use which will most likely produce the highest market value, greatest financial return, or the most profit from the use of a particular piece of real estate”.

A reading of Mr. Ochsner’s testimony leaves no doubt that he was using the phrase “highest and best use” with the above meaning in mind. While Mr. Ochs-ner did not ascribe any monetary difference in value to this tract, it is obvious his testimony shows the tract to be worth more with a commercial zoning than with a residential classification. It is not necessary that a precise amount of difference in value be shown. Ewing v. City of Springfield, supra.

The judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    Everette SLAGLE, Plaintiff-Appellant, v. Cecil MINICH, Defendant, MFA Mutual Insurance Company, Garnishee-Respondent. Mrs. Everette SLAGLE, Plaintiff-Appellant, v. Cecil MINICH, Defendant, MFA Mutual Insurance Company, Garnishee-Respondent.
    No. KCD 26637.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.

      W. F. Daniels, Fayette, for plaintiff-appellant.
    Collins & Grimm, Hadley E. Grimm, Macon, for garnishee-respondent.
    Before SOMERVILLE, P. J., PRIT-CHARD, C. J., and TURNAGE, J.
   PER CURIAM.

These consolidated garnishment proceedings have a common hoary history which fails to lend itself to any semblance of brevity. With this forewarning, the following facts are set forth.

On March 2, 1957, Everette Slagle and his wife, hereinafter referred to as “the Slagles”, sustained injuries in an accident involving a motor vehicle owned and operated by Cecil H. Minich. Thereafter, the Slagles instituted separate actions for damages in the Circuit Court of Howard County against Minich resulting in judgments in their favor on March 6, 1959.

On March 18, 1957, Minich brought a declaratory judgment action in the Circuit Court of Chariton County, Missouri, naming MFA Mutual Insurance Company (hereinafter referred to as “MFA”) and the Slagles as defendants. Minich’s declaratory judgment action sought to have a thirty-day “binder” issued to hi mby MFA declared to be a valid contract of insurance. The declaratory judgment action was prompted by the fact that on March 8, 1957, MFA advised Minich, by written notice, that it would not defend on his behalf any actions arising out of the accident of March 2, 1957. The notice stated that the “binder” of insurance purportedly effective for a thirty-day period starting at two o’clock P.M. on February 28, 1957, was “void and of no effect”.

As evidenced by its answer to Minich’s declaratory judgment action, MFA asserted that the “binder” was void ab initio because of certain false representations made by Minich in his signed application for insurance. The subsequently proven false representations pertinent to the present consolidated appeals being that (1) he had never previously had a policy of automobile liability insurance cancelled when, in fact, he had, and (2) he had no physical defects when, in fact, he was blind in his left eye. MFA further pleaded that the false representations “were material to the risk and issuance of the . . . binder for which [Minich] applied” and that the binder “was void and of no effect because procured and obtained by intentional misrepresentations of fact which were material to the issuance of said binder and the undertaking and assuming of the risk applied for.”

Prior to final judgment in the declaratory judgment action the Slagles, on motion of MFA, were dismissed as parties. The declaratory judgment action then proceeded to a final judgment in the trial court in favor of Minich. The trial court found that the representations, although false, resulted from negative answers placed by MFA’s agent in the application signed by Minich, absent any oral statements by Min-ich, one way or the other, regarding the subject matter of the representations, and that Minich was unaware of the false representations when he signed the application. On the basis of these findings, the trial court entered judgment in favor of Minich. Minich made no claim that the application signed by him was tainted with fraud, concealment or mistake because of the agent’s conduct. MFA timely appealed the judgment rendered against it in the declaratory judgment action.

On April 6, 1959, the Kansas City Court of Appeals, the de jure forebearer of this court, in Minich v. M.F.A. Mutual Insurance Company, 325 S.W.2d 56, reversed the judgment rendered by the Circuit Court of Chariton County in the declaratory judgment action and remanded the cause “with directions to enter judgment declaring the policy [binder] here involved to he void ab initio.” The principal reasons assigned by the court in Minich for its decision were (1. c. 58): (1) “A representation that he [Minich] had not previously had a policy cancelled was material to the risk and grounds for avoidance of the policy if untrue.”; (2) “The fact of his blindness was material to the risk. The same law applies to this matter as that discussed with relation to the prior cancellation of a policy.”; and (3) Having signed the application, which plainly recited that plaintiff had never suffered a cancellation of insurance, he is bound by the terms of the contract eventually consummated, of which the application was a part; and, whether or not he read the instrument, or had it read to him, absent any claim of fraud, concealment, or mistake (and none is made here) he is estopped from denying full knowledge of the terms of the application.” The Supreme Court of Missouri denied Minich’s application for transfer.

Returning now to the judgments for money damages obtained by the Slagles against Minich in the Circuit Court of Howard County, the record discloses that on August 29, 1961, general executions were issued to enforce satisfaction of the respective judgments, and, in aid thereof, MFA was summoned as garnishee. The summonses of garnishment served on MFA notified it to appear before the Circuit Court of Howard County on the 18th day of September, 1961, to “answer such allegations and interrogatories as may be exhibited” by the Slagles. Interrogatories were never propounded by either of the Slagles to MFA in the garnishment proceedings. A vacuous record exists with respect to interrogatories, answers thereto, denials and replies, the conventional method of joining issues in garnishment proceedings. The transcript before this court contains no explanation, or so much as even a hint, as to why the conventional and rule-afforded procedure for joining issues in garnishment proceedings was not utilized.

After MFA was summoned as garnishee the garnishment proceedings lay dormant for approximately six years. Lo and behold, however, on March 1, 1967, the Sla-gles, by counsel, and MFA, by counsel, appeared in the Circuit Court of Howard County and “offers of evidence” were made to the court in each garnishment proceeding “in lieu” of interrogatories, answers to interrogatories, denials and replies. Concomitantly, the parties stipulated “that the court may make its ruling in the proceeding in each of these cases” on the “offers of evidence.”

One of the “offers of evidence”, apparently, was a “statement of facts” (never presented to this court via the transcript or as a filed exhibit). The remaining “offers of evidence” consisted of copies of the following introduced as exhibits: (1) the application and “binder” heretofore referred to; (2) all record entries in the declaratory judgment action brought by Minich in the Circuit Court of Howard County; (3) the opinion of the Kansas City Court of Appeals in Minich v. M.F.A. Mutual Insurance Company, supra, along with Minich’s motion in the Kansas City Court of Appeals for rehearing, or, in the alternative for transfer to the Supreme Court, with M.F.A.’s suggestions in opposition thereto; (4) Minich’s motion for transfer to the Supreme Court along with M.F.A.’s suggestions in opposition thereto; and (5) a petition filed by Minich in the Circuit Court of Boone County, Missouri, against MFA seeking money damages for alleged fraudulent and malicious representations made by MFA to the Department of Revenue concerning Minich’s lack of insurance coverage resulting in the suspension of Minich’s operator’s license, along with a motion to dismiss filed by MFA with respect thereto, and a stipulation that said motion was sustained.

The transcript on appeal fails to disclose any written suggestions or oral arguments filed or made by counsel on behalf of either of the parties on November 1, 1967, or at any other time, suggesting or indicating specific issues purportedly joined in the garnishment proceedings. The trial court, in an effort to determine the issues purportedly joined in the garnishment proceedings, was obviously placed in the untenable position of gropingly sifting through the “statement of facts” alluded to and the various lengthy exhibits introduced. So far as aiding the trial court in determining what issue or issues were joined, the parties presented the trial court, at best, with a tangled legal morass.

Following March 1, 1967, the garnishment proceedings again lay dormant. This time for a period of approximately six and one-third years. They next emerged on February 20, 1973, when, according to the transcript, the following entry appears : “Thereafter, on the 20th day of February, 1973, the Court entered an identical Order in each case, as follows: ‘Garnishment action dismissed and writ of garnishment herein issued is ordered quashed.’ ” The Slagles separately appealed and this court, on its own motion, ordered both cases consolidated.

The consolidated cases were docketed for oral argument before Division One of this court during the May 1974 Term. During the course of oral argument, Division One of this court ordered that the transcript on appeal be supplemented by copies of all record entries in each separate damage action brought by the Slagles in the Circuit Court of Howard County, and, as well, with copies of certain additional record entries in the Circuit Court of Chariton County in the declaratory judgment action brought by Minich against MFA. The consolidated cases were then re-docketed by oral argument before Division Two of this court during the January 1975 Term. The transcript on appeal, as supplemented, still failed to contain the elusive “statement of facts” heretofore alluded to. Consequently, this court has labored under an even greater burden than did the trial court in attempting to determine what specific issue or issues were purportedly joined at the trial level in the garnishment proceeding.

The transcript on appeal (apart from the exhibits filed) and the statement of facts set forth by the Slagles in their brief are both skeletal, at best. This court has endeavored to “flesh out” the skeletal transcript and statement of facts by the tedious process of attempting to analyze and place the exhibits proffered as “offers of evidence” in proper context. This court has been required to expend an inordinate amount of time in doing so. A seriously considered alternative was outright dismissal of the Slagles’ appeal.

So far as this court has been able to ascertain (without indulging in unbridled speculation, both in a negative and affirmative sense), only one issue was joined and presented below with evidentiary support for the trial court to rule upon. Were the admittedly false misrepresentations contained in Minich’s signed application for insurance — that he never had previously had a policy of automobile liability insurance cancelled when, in fact, he had, and that he had no physical defects when, in fact, he was blind in the left eye — material to the risk, thereby rendering the “binder” void ab initio?

The Slagles’ brief, at least inferentially, casts some light on the dilemma encountered by this court in trying to discern what issue or issues were joined at the trial level. The initial argument portion of the Slagles’ brief quotes as follows from Miller v. Plains Insurance Company, 409 S.W.2d 770 (Mo.App.1966): “Appellate courts are not prone to paddle beyond the perimeter of the puddle plied by the parties in the trial court and our review will be made on the same theories and assumptions heard by the trial judge.” Having set the stage, the aforementioned quote was followed by a request by the Slagles for this court, literally, “to paddle beyond the puddle”. Conjunctively, the Slagles raise only two points on appeal. Although highly questionable as being in compliance with Rule 84.04(d), V.A.M.R., the two points raised by the Slagles on appeal, in the order hereinafter discussed, appear to be as follows: (1) Minich v. M.F.A. Mutual Insurance Company, supra, to the extent of holding that representations of the nature in question were “material to the risk and grounds for avoidance of the policy if untrue”, should be re-examined; and (2) Sections 379.195 and 379.200, RSMo 1969, V.A.M.S., fixed MFA’s liability so far as the Slagles were concerned at the time the accident occurred even though the “binder” might subsequently be determined to be void ab initio. Re-examination of Minich is urged on the ground that the Kansas City Court of Appeals failed to consider the existence of a well recognized legal distinction between mere representations and representations equivalent to warranties, and, as well, as to the former, the existence of a settled body of law that in order for a misrepresentation to void a contract of insurance ab initio, the burden rests upon an insurer to not only prove the falsity of a representation, but, further, to prove that it was fraudulently made and, in fact, material to the risk.

The Slagles’ literal request for this court to “paddle beyond the puddle” strongly, if not conclusively, suggests that grounds for the two points they now assert on appeal were never joined as issues at the trial level and never presented to the trial court for determination.

This court lays no claim to clairvoyant powers. Having conscientiously labored and heretofore concluded that only one issue was joined at the trial level, this court likewise concludes that the trial court, in obvious deference to Minich v. M.F.A. Mutual Insurance Company, supra, and with equally obvious adherence to the doctrine or judicial policy of stare decisis, resolved the singular issue in favor of MFA.

The Slagles nevertheless ask this court “to paddle beyond the puddle” and revisit Minich v. M.F.A. Mutual Insurance Company, supra, for the purpose of declaring certain salient principles of law therein ill-advised and improvidently enunciated. Any present inclinations to revisit Minich v. M.F.A. Mutual Insurance Company, supra, more particularly insofar as it may hold that false representations of the nature of those in question are, as a matter of law, material to the risk in every case, is effectively stifled here in view of the inadequate, confusing and disoriented manner in which these consolidated cases were presented at the trial level, and, as well, on appeal. This court, by its disavowal of a willingness to engage in unbridled speculation as previously noted, likewise concludes that any issues inherent in revisitation of Minich v. M.F.A. Mutual Insurance Company, supra, were never joined in these garnishment proceedings. The transcript on appeal, coupled with the virtually barren statement of facts contained in the Sla-gles’ brief and the argument portion thereof, leaves no room to logically conclude otherwise. Therefore, this court presently chooses in these consolidated cases, free of reluctance, hesitancy or doubt as to the propriety or fairness of doing so, to adhere to the judicial policy of stare decisis and to affirm the judgments rendered by the trial court under the authority of Minich v. M. F.A. Mutual Insurance Company, supra.

The Slagles have additionally requested this court to “paddle beyond the puddle” and review the judgments on the ground that Sections 379.195 and 379.200, supra, fixed MFA’s liability so far as they were concerned at the time the accident occurred even though the “binder” might subsequently be determined to be void ab initio. Having already concluded that the judgments entered by the trial court should be affirmed under the authority of Minich v. M.F.A. Mutual Insurance Company, supra, the “binder” therefore was void ad ini-tio. Perforce, the Slagles’ final point under discussion, although never advanced by them at the trial level, is totally devoid of merit on its face. Section 379.195, supra, provides, inter alia, that “. . . whenever a loss occurs on account of a casualty covered by such contract of insurance, the liability of the insurance company, if liability there be, shall become absolute . . .” (Emphasis added.) Since the “binder” was void ab initio by virtue of Min-ich’s false representations that he had not had a previous automobile liability policy cancelled, when, in fact, he had, and that he had no physical defects, when, in fact, he was blind in his left eye (Minich v. M. F. A. Mutual Insurance Company, supra), there was no liability on the part of MFA to Minich at the time the accident occurred. Sections 379.195 and 379.200, supra, did not give the Slagles any greater rights then those possessed by Minich. Since Minich had no rights under the “binder”, the Slages had none. Greer v. Zurich Insurance Company, 441 S.W.2d 15, 30 (Mo.1969).

This elongated opinion, if it serves any purpose whatsoever beyond resolving the differences between the immediate parties, should demonstrate to the bar the intrinsic danger of circumventing the conventional and rule-provided procedure for joining issues in garnishment proceedings.

In each case, the judgment below is affirmed.

All concur.

      . After considerable hesitancy, MFA’s motion to dismiss the Slagles’ appeal for failure to comply with Rule 84.04(d) is overruled.
      As noted in the body of this opinion, it is highly questionable whether the statement of facts contained in the Slagles’ brief complied with Rule 84.04(c).


author: McMILLIAN, Judge.

text:
    JEFFERSON COUNTY BANK & TRUST COMPANY, Plaintiff-Respondent, v. Louis Henry DENNIS, Defendant-Appellant.
    No. 36103.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 29, 1975.

      Joe Bill Carter, John J. Allan, Clayton, for defendant-appellant.
    Dearing, Richeson, Roberts & Wegmann. J. Richard Roberts, Hillsboro, for plain' tiff-respondent.
   McMILLIAN, Judge.

Defendant Louis Dennis, appeals from an order of the Circuit Court of Jefferson County, Missouri, sustaining plaintiff’s mo tion granting a new trial.

The controversy arose when plaintiff filed a suit seeking to recover money damages on default of a promissory note in the face amount of $30,000 with an unpaid balance of $20,000. Defendant counterclaimed alleging fraudulent misrepresentation in the inducement of the contract. The jury found in favor of defendant and against plaintiff on plaintiff’s claim and in favor of defendant and against plaintiff on his counterclaim, awarding him $10,000 actual damages and $6,000 punitive damages.

The court sustained plaintiff’s motion for a new trial on all issues because of its error in giving three instructions which we will detail later. Defendant has appealed. For reasons hereinafter stated, we affirm.

Defendant’s initial claim of error involves Instructions 5 (defendant’s verdict director on its affirmative defense) and 6 (defendant’s verdict director on its counterclaim for damages). Both instructions detail the making of three representations, their falsity, plaintiff’s knowledge (through its agents) of their falsity, materiality of the representations to plaintiff’s execution of the promissory note, defendant’s reliance on the representations, his exercise of “ordinary care” in so doing and defendant’s directly resulting damage.

The trial court granted plaintiff’s motion for new trial on all issues because Instructions 5 and 6 failed to require the jury to find that plaintiff’s agents made the false representations intending that defendant rely upon them. Defendant argues that this is not an essential element of actionable fraud and that, even if material, failure to instruct on the element did not prejudice plaintiff’s case. We disagree on both grounds.

The essential elements of fraudulent misrepresentation include a finding that, “. . . the statement was made with intent that it should be relied upon by the person and in the manner reasonably contemplated . . . .” Yeager v. Wittels, 517 S.W.2d 457, 463 (Mo.App.1974). The Missouri Approved Jury Instructions (M.A.I.) effective January 1, 1965, recognize as an essential element of fraud the intent that a party rely upon a false representation. M.A.I. No. 23.05. Outside of failure to include “intent,” defendant’s Instructions 5 and 6 comply almost verbatim with M.A.I. 23.05. We hold that the omission of such an element was error.

Our next task is to determine judicially the prejudicial effect of giving an applicable M.A.I. instruction. Rule 70.01 (c), V.A.M.R. All unneeded deviations from the straight and narrow path prescribed in M.A.I. — when there is an applicable M.A.I. — are presumed prejudicially erroneous unless it is made perfectly clear that no prejudice has resulted. Murphy v. Land, 420 S.W.2d 505, 507 (Mo.1967); Royal Indemnity Co. v. Schneider, 485 S.W.2d 452, 458 (Mo.App.1972); Watterson v. Portas, 466 S.W.2d 129, 132 (Mo.App.1971).

Defendant failed to make it “perfectly clear” that plaintiff was not prejudiced by unnecessary deviation from M.A. I. Proof of plaintiff’s agent’s intent that Dennis rely on representations made prior to execution of the promissory note is an essential element both in defendant’s defense to plaintiff’s action to recover on the note (Instruction 5) and in defendant’s counterclaim for damages (Instruction 6). A failure to establish this element is fatal to proving fraud. See John T. Brown, Inc. v. Weber Implement & Automobile Co., 260 S.W.2d 751, 755 (Mo.1953).

Fraud seldom is susceptible of proof by direct evidence. It often must be shown by circumstances surrounding the transaction from which fraud reasonably may be inferred. Salmon v. Brookshire, 301 S.W.2d 48, 53 (Mo.App.1957). But, even assuming, without so deciding, that circumstantial evidence elicited at trial was sufficient to warrant a finding of intent that Dennis rely on false representations, the jury was not afforded the opportunity to make such a finding of fact. Nor is the evidence so clear that we may hold that as a matter of law that such intent existed. Therefore, we hold that this unnecessary violation of M.A.I. constitutes prejudicial error. The trial court correctly recognized this error in granting a new trial on all issues.

The trial court also ruled that Instruction 7 was erroneously given and was a material deviation from M.A.I. Since the problem may recur upon retrial, we will discuss the propriety of defendant’s “agency” instruction.

Defendant patterned Instruction 7 after M.A.I. No. 13.06, which is entitled “Definition — Agency—Servant or Independent Contractor.” In its motion for new trial, plaintiff convinced the trial court that M. A.I. 13.02 was the appropriate instruction.

Although M.A.I. 13.02 is designed for use in a case of battery by an alleged agent, it is equally proper for use in a case involving “.■ . . other wrongful or tor-tious conduct of an agent . . . .” Tietjens v. General Motors Corp., 418 S.W. 2d 75, 88 (Mo.1967). Plaintiff’s action in Tietjens was for damages for fraud by plaintiff’s agent. A major issue was whether or not representations made by one Carter, who admittedly was defendant’s employee, were made within the course and scope of Carter’s employment.

On the other hand, M.A.I. No. 13.06, or a modification thereof, normally is given when it is contested whether a person is an independent contractor or a mere agent or servant. M.A.I. No. 13.06 should be used when such an issue exists. Price v. Seidler, 408 S.W.2d 815, 821 (Mo.1966). Also see Jokisch v. Life and Cas. Ins. Co. of Tenn., 424 S.W.2d 111, 113 (Mo.App.1967); Barkley v. Mitchell, 411 S.W.2d 817, 821-822 (Mo.App.1967). We have discovered no appellate case in which M. A.I. No. 13.06 was given when the cause of action or the defense was based on fraudulent misrepresentation.

We believe that M.A.I. No. 13.02 is the appropriate instruction in the case at bar. In his pleadings, defendant alleges that he “. . . was induced to enter into said note by reason of the fraudulent misrepresentation of plaintiff, its officers, directors, agents and employees. . . .” At trial, there was no evidence of whether plaintiff’s officers or directors were independent contractors or mere servants. Rather, the issue was whether one or more admitted officers or directors went beyond the scope of their authority. Therefore, we agree that defendant’s Instruction No. 7 was a material deviation from M.A.I. No. 13.02, the only applicable instruction. By referring to plaintiff’s “right to control the physical conduct of its officers and directors,” defendant’s Instruction 7 injects into the case a concept alien to the facts in question. Remembering our previous discussion concerning presumed prejudice, we believe that such a material deviation was prejudicial error. Rule 70.01(c).

Judgment affirmed.

SIMEONE, P. J., and GUNN, J., concur.

      . Defendant erroneously states as the reason for our jurisdiction the fact that the amount in controversy does not exceed $30,000 and cites § 477.040, RSMo 1969, V.A.M.S. This court’s jurisdiction has been governed by Mo.Const. Art. V, § 3, V.A.M.S., since 1970.

      . This element has been stated in various ways. The usual characterization is “ . the speaker’s intent that his statement should be acted upon . . .” Ackmann v. Keeney-Toelle Real Estate Company, 401 S.W.2d 483, 488 (Mo.banc 1966).

      . M.A.I. No. 23.05 calls for a party to add the “intent” element immediately after describing the allegedly false representations. Apparently defendant’s counsel did not proofread the trial copies of his submitted instructions word for word against the applicable M.A.I. form. See Clemens, A Child’s Guide to M.A.I., 28 J. of Mo.Bar 32, 52 (1972).

      . Instruction No. 7 reads as follows:
      “Acts were within the ‘scope and course of Agency’ as that term is used in these instructions if:
      1. They were performed by officers and directors to serve the interests of Jefferson County Bank and Trust Company according to an express or implied ageement (sic) with Jefferson County Bank and Trust Company, and
      2. Jefferson County Bank and Trust Company either controlled or had the right to control the physical conduct of its officers and directors.”
      M.A.I. 13.06 has the following format:
      “13.06 Definition — Agency—Servant or Independent Contractor
      Acts were within the ‘scope and course of agency’ as that term is used in this [these] instruction[s] if:
      “1. they were performed by (name of alleged servant) to serve the [business] [interests] of (name of alleged master) according to an express or implied agreement with (name of alleged master), and
      “2. (name of alleged master) either controlled or had the right to control the physical conduct of (name of alleged servant).”

      M.A.I. 13.02 reads:
      “13.02 Definition — Agency—Battery Committed by Servant
      Acts were within the ‘scope and course of employment’ as that term is used in this [these] instruction [s] even though not specifically authorized by (name of master) if:
      1. they were done by (name of servant) to further the [business] [interests] of (name of master) under the general, authority and direction of (name of master), and
      2. they naturally arose from the performance of (employees) work.”


author: DOWD, Acting Presiding Judge.

text:
    Constance Sue GLAVES, Plaintiff-Respondent, v. Lloyd Newton GLAVES, Defendant-Appellant.
    No. 36028.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 29, 1975.

      Zenge & Smith, Canton, for defendant-appellant.
    William Alberty, Edina, Dennis Davidson, Hannibal, for plaintiff-respondent.
   DOWD, Acting Presiding Judge.

Action by plaintiff-wife for divorce and child custody. Defendant-husband filed a cross-bill praying that he be granted the divorce and awarded custody of the two children, ages 5 and 6. The trial court granted the defendant’s cross-bill for divorce, but made the children wards of the circuit court; custody of the children was awarded to the wife during the week and to the appellant on the weekend. The court further ordered that the two children be subject to the supervision of the Department of Welfare of the State of Missouri. Appellant appeals from only that part of the court’s decree which makes the children wards of the court and gives respondent custody during the week.

Appellant’s first point on appeal is that the court erred in making the children of the marriage wards of the court. Appellant argues that the trial court has no authority to make the children wards of the court unless a proceeding is held under Chapter 211, RSMo 1969, V.A.M.S. This contention finds no support in the established case law concerning the disposition of child custody incidental to a decree of divorce.

The minor children of divorced parents become wards of the court which grants the divorce decree. While the experienced trial judge specifically made the minor children wards of the court, the children would have been so by operation of law. State v. Weinstein, 413 S.W.2d 178[1] (Mo. banc 1967). “‘The power to adjudge custody, while statutory, is an inheritance from the ancient ecclesiastical courts, and under our statutes when the court has once acquired such jurisdiction the child becomes its “ward” and the court has jurisdiction to award custody “to the exclusion of all others.” ’ ” Allen v. Allen, 433 S.W.2d 580, 583 (Mo.App.1968). When minors are properly before a court for any purpose and their welfare is involved, they become wards of that court. State v. Ferriss, 369 S.W.2d 244, 249 (Mo. banc 1963).

Appellant’s complaint is that the trial court made no findings of neglect, abandonment, or failure to support as would be required under a proceeding brought in the juvenile court under Chapter 211. The answer to this contention is found in McCoy v. Briegel, 305 S.W.2d 29 (Mo.App.1957). In McCoy, also a divorce action, the court denied custody to either parent, instead placing the children under the custody of the county Social Security Commission for the purposes of finding foster homes for the children. Plaintiffs in McCoy argued that such an order could only be made under Chapter 211 RSMo 1949, which provided proceedings for “neglected” children. The court answered this contention by saying that the fact that Chapter 211 provides a procedure whereby neglected children can be made wards of the juvenile court does not mean that a court, “in a divorce action, having jurisdiction of the subject matter and the parties, becomes divested, of jurisdiction to adjudicate and judicially determine the question of the welfare of the children of the litigants simply because it is ascertained that the children have been neglected” and that a proceeding may also lie under Chapter 211. McCoy at 35. Indeed, a proceeding under Chapter 211 would take precedence over, and be paramount to, the incidental jurisdiction the divorce court has over minor children. State v. Weinstein, supra.

Thus, since the court had proper jurisdiction over the custody of the children and since no court had paramount jurisdiction, the court’s order making the children wards of the court under the supervision of the Division of Welfare was well within the court’s authority and not in conflict with Chapter 211.

Appellant’s second point on appeal concerns the scope of appellant’s redirect examination of certain witnesses. During the trial of this case appellant called several witnesses to testify in his behalf as to appellant’s honesty, sobriety and reputation in the community. On cross-examination these same witnesses were asked about respondent’s fitness as a mother. The witnesses all gave a positive answer on the question of whether respondent was a good mother.

Thereafter, appellant sought to re-examine these witnesses to discover if they were aware of respondent’s admitted adultery and respondent’s neglect in failing to provide dental care for the children. Objections to this line of inquiry were sustained. Appellant’s contention is that he should have been allowed to test each witness’s knowledge of the respondent’s character for the purposes of impeaching the credibility of these witnesses.

We agree with appellant’s contention that he was improperly restrained in his examination of these witnesses. These witnesses were character witnesses called to testify to appellant’s good character. When respondent went beyond the scope of the direct examination and sought from these witnesses their opinion of respondent’s character, respondent made them her witnesses on that issue. Appellant then is allowed to cross-examine such a witness as to whether the witness knows of specific acts of misconduct. Such an inquiry is “permissible to test the knowledge, the trustworthiness, and accuracy of the witness’s information, the basis for his judgment, candor, and credibility.” State v. Johnigan, 494 S.W.2d 23[4, 5] (Mo.1973). A character witness may be cross-examined as to good faith rumors and as to facts within the witness’s knowledge discreditable to the person to whose good reputation the witness has testified. State v. Richardson, 364 S.W.2d 552, 555 (Mo.1963).

Our conclusion that the cross-examination of these witnesses was unduly restricted does not mean we are required to reverse the judgment. Since this is a divorce action, our duty is to review all the evidence and reach our own conclusion as to the proper judgment to be entered. Boyd v. Boyd, 459 S.W.2d 8, 11 (Mo.App.1970). We are to enter such judgment as the trial court should have entered. Heibel v. Heibel, 366 S.W.2d 37, 41 (Mo.App.1963). Furthermore, we are to consider only the evidence as the court below should have considered. Coleman v. Coleman, 318 S.W.2d 378, 382 (Mo.App.1958).

In the case before us appellant was allowed to make offers of proof as to what each witness would have testified to. The substance of the offer of proof was that each witness would have changed his or her opinion of respondent’s character had the witness known of the specific acts of conduct sought to be cross-examined on. For the purposes of our review we will accept the offer of proof as true and consider the credibility of each witness as impeached thereby.

This brings us to appellant’s final point that the court erred in not granting full custody to appellant. Appellant argues that he is able to provide the children with a better environment than respondent. The trial court’s findings involving the custody of minor children are not to be lightly regarded and easily disturbed and we will defer to those findings unless we are firmly convinced that the welfare of these children require some other disposition, bearing in mind, of course, the fact that the trial court has continuing jurisdiction to make such further orders as future circumstances warrant. Jennings v. Jennings, 379 S.W.2d 159, 163 (Mo.App.1964); C v. B, 358 S.W.2d 454, 461 (Mo.App.1962).

We have thoroughly examined the record in this case. The trial court was faced with a difficult decision. There was substantial evidence that appellant is a man of good moral character, that appellant has a great concern for the welfare of these children and could provide a home superior to the one in which the children now live. However, appellant is not at home during the day and would have to hire “sitters” for the children.

On the other side of the coin, respondent is able to be with the children for a substantial part of the day. The children have also grown up with two of respondent’s children of another marriage and it probably would not be wise at this time to sever this relationship. Add to this the fact that both children are of tender years and that one child is a little girl. The trial court was not in error in holding that the best interest of the children require their mother to have custody of the children during the week.

In arriving at this conclusion we are not unmindful of the unfavorable character evidence of the respondent that was produced below. We do not find that evidence to justify a different conclusion in this case. Not all unfavorable character evidence justifies a finding of unfitness as a parent. This does not preclude the trial court, of course, from re-examining the environment of these children from time to time and the court may in the future find a change in circumstances requiring a modification of its custody order. For our purposes, however, we do not find the evidence when taken as a whole compels a result different from that reached by the trial court.

The judgment is affirmed.

WEIER and RENDLEN, JJ., concur.

      . Chapter 211 provides a procedure whereby neglected, abandoned or unsupported children can be made wards of the juvenile court.


author: BILLINGS, Chief Judge.

text:
    Truitt HOUNIHAN, Administrator of the Estate of Gary L. Hounihan, Deceased, Plaintiff-Respondent, v. FARM BUREAU MUTUAL INSURANCE COMPANY OF MISSOURI, Defendant-Appellant.
    No. 9850.
    Missouri Court of Appeals, Springfield District.
    May 1, 1975.

      James E. Reeves, Ward & Reeves, Ca-ruthersville, for plaintiff-respondent.
    J. Lee Purcell, Jerry M. Merrell, Hyde, Purcell, Wilhoit & Edmundson, Poplar Bluff, for defendant-appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

In this court tried case the Circuit Court of New Madrid County entered judgment for the plaintiff for the amount of a fire insurance policy issued by the defendant, together with statutory penalties for vexatious refusal to pay the loss. Defendant contends there was insufficient evidence for the court to find against its affirmative defense of material increase in hazard and it was error for the court to find it guilty of vexatious refusal to pay the fire loss. We affirm.

Initially, we must agree with plaintiff that defendant’s points relied on fail to measure up to the requirements of Rule 84.04(d), V.A.M.R. They are abstract statements which fail to inform us wherein and why the trial court’s rulings were erroneous. However, by reference to the transcript and argument portion of defendant’s brief, we are able to glean the gist of its complaints to the rulings of the trial court and will in this instance consider the same.

The named insured, Gary Hounihan, and his cousin died as a result of burns they received in a fire, and a brother, Dennis, was also burned. Gary, his wife Brenda, and their child formerly lived together in the farm dwelling; but prior to the fire, marital problems had arisen, and Brenda and the child were staying with her parents.

Following an investigation, the defendant initially denied liability under the policy because of “foul play”, “suspicious circumstances”, and because it thought the fire was intentionally set by Gary Houni-han. Defendant’s investigator concluded his report to defendant thus: “We recommend that a formal denial of this claim be issued because of the relationship between Gary Hounihan and his wife, Brenda Hou-nihan. We feel that the denial can be made in a manner tendered with good judgment which will not involve us in an out of court accusation of arson. It is entirely possible that we will find it necessary to defend that decision, and if and when that occurs, we might want to entertain a compromise settlement offer. The funeral services for the deceased were conducted last week and we feel it important in our first contact with Mrs. Hounihan be made shortly after that denial, if it is to be made at this time, be made at the time of that first contact.”

In its original answer to plaintiff’s suit on the policy the defendant denied the loss occurred while the policy was in effect, denied the fact of loss of the insured property, denied notice of the fire loss and denied it had denied liability under the policy or refused to pay the loss. In answers to interrogatories filed more than eleven months after the fire the defendant stated its investigation as to the cause and origin of the fire was continuing, acknowledged notice of the fire loss the day after the fire, and admitted it had denied liability on the policy five weeks after the fire. The defendant amended its answer by adding the following affirmative defense: “Gary L. Hounihan did, by his activity, increase the hazard insured against by means which were within the control and knowledge of said Gary L. Hounihan . . . . ” In reply to plaintiff’s additional interrogatory the defendant stated that the insured “did, by his activity in permitting highly volatili-ble [sic] substances such as gasoline to be placed on the premises which burned with his knowledge and control, and thereby increased the hazard insured against, and the said substances within the said house, which were placed there prior to the time of the fire, were placed in the residence within the control and the knowledge of Gary L. Hounihan, and by this action the said Gary L. Hounihan voluntarily increased the hazard insured against and thereby violated the terms and conditions of the insurance contract and temporarily suspended coverage . . . . ”

Admittedly, the defendant had the burden of proof on its affirmative defense that its named insured was responsible for materially increasing the hazard insured against. By its judgment the trial court found against the defendant on this issue. A finding against a party having the burden of persuasion is not required to be supported by any evidence since the trier of the fact may simply not give credence to the testimony. Thus, a verdict in favor of the party not having the burden of proof need not be supported by any evidence. Hollocher v. Taylor, 506 S.W.2d 105 (Mo.App.1974). Here, the trial judge was the trier of fact and he was at liberty to disbelieve the defendant’s contradictory evidence on its affirmative defense. Earney v. Clay, 516 S.W.2d 59 (Mo.App.1974). In this case the initial denial of liability was based upon the defendant’s conclusion that the fire had its origin in arson committed by the insured. There was no evidence offered by the defendant to confirm its suspicion that the insured intentionally set the fire. Defendant’s own eyewitness to the fire, Dennis Hounihan, refuted that postulate, as well as its pleaded defense of increase in hazard.

Further, by first denying liability as above set forth, the defendant was foreclosed from later advancing a different ground for denying coverage. Aetna Casualty & Surety Company v. Haas, 422 S. W.2d 316 (Mo.1968). Stone v. Waters, 483 S.W.2d 639 (Mo.App.1972). Defendant’s point is without merit.

The defendant’s remaining point concerns the court’s finding that its refusal to pay the fire loss was vexatious and the imposition of damages and attorneys fees under § 375.420, RSMo 1969, V.A.M.S.

The denial of liability under an insurance policy without stating any ground for denial is sufficient to warrant the submission of the issue of penalty and attorney fees. Bennett v. National Fire Ins. Co. of Hartford, 235 Mo.App. 720, 143 S.W.2d 479 (1940). “Mere suspicion that the origin fire is of an incendiary nature, without any substantial facts on which to base that suspicion, will not justify an insurer in refusing to pay the loss. If such refusal or delay is based on such suspicion alone, then such delay is vexatious within the meaning of [§ 374.420, RSMo 1969].” Firemen’s Ins. Co. of Newark v. Smith, 83 F.Supp. 668, 673 (W.D.Mo.1949), aff’d 180 F.2d 371 (8th Cir.), cert. den. 339 U.S. 980, 70 S.Ct. 1028, 94 L.Ed. 1384 (1950). The fact that the judgment may be adverse to the insurer is not conclusive but the trier of fact may find the refusal to pay was vexatious from its failure to establish the grounds on which the refusal was based. Firemen’s Ins. Co. of Newark v. Smith, 180 F.2d at 379.

“[A] refusal to pay is vexatious if founded not upon what appear to be facts but only on a possibility that later investigation may develop facts justifying refusal to pay, even if such further investigation does develop such facts.” Buffalo Ins. Co. of City of Buffalo v. Bommarito, 42 F.2d 53, 57 (8th Cir. 1930).

Here, after an extensive investigation, the defendant’s agent recommended a formal denial of liability be made “because of the relationship” between the insured and his wife while at the same time recognizing that because of lack of substantial evidence to prove arson a compromise settlement of the claim might be in order. We also note that nearly a year later the defendant was still seeking facts upon which to warrant denial of liability on some ground. On the record presented the trial judge could find the defendant’s refusal to pay the loss was vexatious.

Our review of this court tried case has been governed by Rule 73.01 “The rule as revised [effective January 1, 1975] eliminates the provision that ‘[t]he judgment shall not be set aside unless clearly erroneous’; but it still provides that appellate review of a court tried case shall be ‘as in suits of an equitable nature.’ The nature of review in equity cases has historically demanded that due deference be given to the findings and conclusions of the trial chancellor, and that this rule of deference not be ignored ‘unless the evidence is palpably insufficient to sustain the findings.’ [citations omitted].” R. L. S. v. J. E. S., 522 S.W.2d 5 (Mo.App.1975).

Applying the foregoing standard to the findings and judgment of the experienced trial judge who heard this case, we cannot say the evidence is palpably insufficient.

The judgment is affirmed.

All concur.