author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Charles Arthur HARDIN, Appellant.
    No. 59863.
    Supreme Court of Missouri, en banc.
    Sept. 12, 1977.

      James C. Jones, Asst. Public Defender, St. Louis, for appellant.
    Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   HENLEY, Judge.

Charles Arthur Hardin (defendant), charged by information with armed robbery (§§ 560.120 and 560.135), was found guilty by a jury and, having been convicted of a prior armed robbery, was sentenced by the court (§ 556.280) to imprisonment for 15 years. Upon appeal to the Court of Appeals, St. Louis district, his conviction was affirmed. We ordered this case transferred on application of defendant to consider points briefed by him in but not considered by the court of appeals in its opinion. Those points understandably were not considered, because the transcript (approved by defendant and the State) showed that his motion for new trial was not timely filed. However, as defendant so strongly insisted in this application (and in his motion for rehearing in the court of appeals), the trial court’s record shows, as does the record on appeal now show, that his motion for new trial was in fact timely filed. Counsel for parties on appeal are reminded that it is their duty to see to it that necessary parts of the record are accurately shown in the transcript. Having considered and determined these points “the same as on original appeal” (Mo.Const. Art. Y, § 10), we affirm.

The jury reasonably could have found the facts to be as follows. On April 22,1974, at about 7:45 p. m., Elbert Ray Montgomery was unlocking the gate in front of his home in St. Louis when defendant and two other men walked up behind him. Defendant, armed with a revolver, nervously pointed it at Montgomery and told him to “be cool” while one of the other men searched his pockets and took his wallet and its contents. The wallet contained $360 cash, a cashier’s check of the Mound City Trust Company payable to Elbert Montgomery for $800, Montgomery’s driver’s license, and other items. Mr. Montgomery testified "that the robbery took approximately one and One-half minutes; that it was still light enough and defendant close enough during the robbery that he could see defendant very clearly and that he watched him with such concentration that defendant noticed and, with the revolver, nervously commanded him to quit looking at his face; that he called the police immediately and gave them a detailed description of defendant and the property taken; that he reported the taking of the cashier’s check to Mound City Trust Company early the next morning (April 23).

Later that day (April 23), a man identified as Leon McCoy presented this cashier’s check, with Montgomery’s driver’s license for identification, to Marie Stumpe, a Mound City Trust Company teller, for cashing at her “walkup” window. She had been alerted that morning that this check had been taken in a robbery. She handed McCoy a pen and he endorsed the check while she was making contact with the bank’s security officer. The endorsement signature was not the same as that on the driver’s license. This information having been communicated to him, the security officer, Guybert Barnes, stepped outside and took McCoy into custody and handcuffed him.

Mr. Barnes then went out into the bank’s parking lot and approached an automobile occupied by three men he thought might be McCoy’s accomplices. This automobile immediately sped out of the lot with Barnes in hot pursuit. The car was stopped and its occupants apprehended about two blocks from the bank. Defendant was one of the occupants. All were taken back to the bank where they and McCoy were delivered to the police.

Mr. Montgomery positively identified defendant at a lineup later that same day (April 23). He also saw McCoy at the police station before the lineup and told the police that he was not one of the three men who robbed him. He identified defendant at trial as the man who held a revolver on him while his property was being taken.

Defendant briefs three points, all relating to the admissibility of evidence. The first of these arises out of a lineup and the second an in-court identification. We consider the two together.

He contends that the court erred in admitting evidence of his identification by Elbert Ray Montgomery at the lineup and in court, because the lineup and both identifications were the fruit of an illegal arrest; that his arrest near the bank after a chase was illegal because it was made without a warrant or probable cause to believe that a felony had been committed by him.

In the first place, the alleged error in the admission of this evidence is not preserved for review, because the question of validity or invalidity of his arrest and the admissibility in evidence of what he says are the fruits of that arrest present issues collateral to, and which must be determined in a proceeding independent of, the issue of guilt. State v. Dalton, 23 S.W.2d 1, 5[6] (Mo.1929); State v. Yowell, 513 S.W.2d 397, 402-403[1, 2] (Mo.banc 1974). To preserve this alleged error for review defendant was required to, but did not, raise this question prior to trial in a motion to suppress the evidence. State v. Yowell, supra; State v. Wragg, 395 S.W.2d 196, 199[4] (Mo.1965); Schleicher v. State, 483 S.W.2d 393, 394[1] (Mo.banc 1972).

However, even if we assume the arrest was illegal, the evidence was admissible, because there is no evidence from which it reasonably may be said that the lineup itself was impermissibly suggestive, and because both the lineup identification and the in-court identification emanated from a source independent of the arrest. It is clear from a review of the record that the source of Elbert Montgomery’s identification of defendant was his close face-to-face observation of defendant and his mannerisms during the robbery. State v. Thomas, 491 S.W.2d 328 (Mo.1973); State v. McIntosh, 492 S.W.2d 843, 845[3] (Mo.1973).

Defendant’s last point is that the court erred in admitting the testimony of the bank teller and the security officer, regarding the attempt by Leon McCoy to cash the cashier’s check and defendant’s apprehension nearby, because this evidence is not relevant to his guilt or innocence of the armed robbery the day before. Defendant argues that all this evidence does is place him at the scene where the stolen check was presented for payment. The evidence of defendant’s presence in the parking lot of the bank which had issued the stolen check and that he was one of the men occupying an automobile which fled the lot as the security officer approached after having openly taken in custody the man who had presented the check for payment, would not, standing alone, support a conviction, but it is, in the circumstances of this case, evidence a jury may consider in connection with the other evidence in determining defendant’s guilt or innocence of the robbery which produced the check. State v. Ross, 502 S.W.2d 241, 248[9] (Mo.1973). The court did not err in admitting this evidence.

The judgment is affirmed.

All concur.

      . References to sections of statutes are toRSMo 1969.


source: Caselaw Access Project

license: Public Domain

text:
    UNION ELECTRIC COMPANY, a corporation, Plaintiff-Appellant, v. LAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF the CITY OF ST. LOUIS, a Body Corporate, and The City of St. Louis, Missouri, a Municipal Corporation, Defendants-Respondents.
    No. 59746.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1977.

      William H. Ferrell, St. Louis, for plaintiff-appellant.
    Irvin Dagen, Robert C. McNicholas, Associate City Counselor, St. Louis, for defendants-respondents.
   HENLEY, Judge.

This is an appeal from a judgment dismissing Union Electric Company’s (Union Electric) declaratory judgment action on motion of Land Clearance for Redevelopment Authority of the City of St. Louis (the Authority) and the City of St. Louis (the City), because the petition failed to state a claim on which relief could be granted.

The ultimate relief sought by Union Electric is a declaration that the Authority and the City are obligated to reimburse it for the cost of relocating electric distribution facilities installed many years ago in one block of a public thoroughfare recently vacated by city ordinance to permit its use as part of an urban redevelopment project.

Union Electric is a public utility engaged in the business of manufacture, transmission and distribution of electricity. It has been engaged in the distribution of electricity in the city for more than 50 years and, pursuant to the authority of ordinance No. 12723 adopted by the City in March, 1884, it has installed and uses for that purpose underground electrical facilities, including manholes, vaults and conduits in that part of Martin Luther King Drive (an east-west thoroughfare) lying between sixth and seventh streets, which area is part of a larger area designated as the DeSoto Carr Urban Renewal Project.

In 1969 the Authority, pursuant to §§ 99.-300 to 99.660 (known as the Land Clearance for Redevelopment Authority Law) and certain ordinances of the city, acquired for redevelopment as a part of the DeSoto Carr Urban Renewal Project two city blocks, one of which adjoins the 600 block of Martin Luther King Drive on the north side and the other adjoins it on the south side. This two-block area and that part of Martin Luther King Drive lying between them is designated in the pleadings as “Convention Plaza Plat 2,” a part of St. Louis’ new Convention Center area.

In October, 1974, the City adopted ordinance No. 56831 vacating the 600 block of Martin Luther King Drive to enable the Authority to utilize it as a part of the urban renewal project.

In February, 1975, the Authority notified Union Electric by letter that this block had been vacated by ordinance and requested that it remove its facilities. In March, 1975, Union Electric informed the Authority by letter that it would remove its facilities, but that it did so “without prejudice to our rights for reimbursement of our costs.”

The allegations of Union Electric’s petition are, in substance: (1) that it and its predecessor companies have complied with all requirements of ordinance No. 12723, by reason of which it has a franchise and vested property rights; the nature and extent thereof being “set forth in ordinance 12723 * * * (2) that “ * * * has removed its * * * facilities as requested by Authority and, in so doing, incurred relocation costs in the amount of $19,643;” and (3) that it has demanded of the Authority and the City payment of these relocation costs, but payment has been refused. The petition further alleges that Union Electric is entitled to receive payment from the City and the Authority of the costs it incurred in removing and relocating its facilities, because: (1) its franchise is “property” within the meaning of Mo.Const. Art. I, §§ 10, 26 and 28, and the U.S.Const. Amend. XIV, which property “may not be taken unless just compensation is paid * * * (2) “ordinance No. 56831, insofar as it requires * * * [Union Electric] to remove its * * * facilities without * * * payment of the costs of * * * [removal and relocation] is invalid” and violates the above constitutional provisions in that “it deprives * * * [Union Electric] of its franchise right to install and maintain underground electrical * * * facilities” in the streets of the City; (3) “ordinance No. 56831 is invalid and unconstitutional, insofar as it requires * * * [Union Electric] to remove its * * * facilities * * * without authorizing the payment of the costs of * * * [removal and relocation] in that it impairs * * * ” the obligation of its contract with the City in violation of Mo.Const. Art. I, § 13, and U.S.Const. Art. 1, § 10; and (4) ordinance No. 56831 “was instigated and directed by” and “was accomplished for” the benefit of the Authority “for a proprietary, rather than governmental, purpose or function, namely the use of such property for a privately owned and operated hotel.”

The prayer of the petition is that the court declare (1) that Union Electric has a franchise with the City; (2) that ordinance No. 56831 is unconstitutional and void insofar as it requires Union Electric to remove and relocate its described facilities without payment of the expense thereof by the City and Authority; and (3) that Union Electric is entitled to recover the expense of such relocation from the City and Authority.

We are inclined to agree with the trial court that Union Electric’s petition does not state a claim on which relief may be granted.

Union Electric has, as it claims, a right to locate its electric distribution facilities in the streets and alleys of the City of St. Louis. The source of the right is, as it states, ordinance No. 12723. This court considered this particular ordinance in State on Inf. of Jones, ex rel. City of St. Louis v. Light and Development Co. of St. Louis, 246 Mo. 618, 152 S.W. 67 (banc 1912). Ordinance 12723 is spoken of in that case as granting to anyone who had accepted and complied with its terms, enforceable franchise or contract rights to use the city streets and alleys for the distribution of electricity. 152 S.W. at 75. See also: State on Inf. of Jones v. West End Light and Power Co., 246 Mo. 653, 152 S.W. 76, 80, 81[6, 7] (banc 1912); City of St. Louis v. Laclede Power and Light Co., 347 Mo. 1066, 152 S.W.2d 23 (Mo.1944); City of Brunswick v. Myers, 357 Mo. 461, 209 S.W.2d 134 (1948); 39 Am.Jur.2d, Highways, Streets and Bridges, § 236, pp. 616-619.

However, this right of Union Electric to use the 600 block of Martin Luther King Drive for the distribution of electricity is not unconditional; it is subject, by express terms of the franchise or contract, to “such restrictions, regulations and qualifications as may be prescribed by said Board.” It is subject to a condition clearly expressed in the ordinance on which the rights claimed are based: a reservation of the right to direct relocation of electric distribution facilities installed in a street. In accepting this franchise it also accepted this condition as a part of the contract and is in no position to complain of its exercise. City of Brunswick v. Myers, supra (209 S.W.2d at 137[3]).

In light of this agreed-to reservation, it may not reasonably be said that ordinance No. 56831, insofar as its vacation of this block of Martin Luther King Drive resulted in requiring Union Electric to remove its facilities therefrom, was a law impairing the obligation of a contract, the enactment of which would violate Mo. Const. Art. I, § 13 and U.S.Const. Art. I, § 10. Kansas City Power & Light Co. v. Town of Carrollton, 346 Mo. 802, 142 S.W.2d 849, 855[12] (1940).

It is said in McQuillin Mun. Corp. (3rd Ed.), vol. 12, § 34.74a, pp. 183-184: “The fundamental common-law right applicable to franchises in streets is that the utility company must relocate its facilities in public streets when changes are required by public necessity * * *, [or] public convenience [and] security require it, * * * at * * * [its] own expense. * * * [But] [t]he general rule that the utility must bear the relocation costs has been held inapplicable where the relocation of its facilities has been necessitated by the municipality’s exercise of a proprietary rather than a governmental function or purpose.”

Union Electric refers to the allegation of its petition that the 600 block of Martin Luther King Drive was vacated and it was required to relocate its facilities to permit the use of that area by a privately owned and operated hotel, a use it contends was for a proprietary purpose. In this connection it further contends that requiring it to relocate its facilities at its own expense is a “taking” of its property without compensation in “violation of the federal and state constitutions.” It relies on City of Los Angeles v. Los Angeles Gas & Electric Corporation, 251 U.S. 32, 40 S.Ct. 76, 64 L.Ed. 121 (1919); City of Baltimore v. Baltimore Gas and Electric Co., 232 Md. 123, 192 A.2d 87 (1963); and City of Cincinnati v. Cincinnati & Suburban Telephone Co., 123 Ohio St. 174, 174 N.E. 586 (Ohio 1930) as supporting its position.

In the Los Angeles case the city was engaged in establishing a lighting system of its own and ordered the Gas and Electric Corporation to remove at its expense fixtures it had placed in the streets by virtue of rights it claimed were guaranteed by its franchise. The court held that this uncompensated taking of what belonged to one lighting system in order to make way for another was forbidden by the due process clause of the Fourteenth amendment.

In the Cincinnati case the court held that the city could not require street car tracks to be located in a street over an underground telephone conduit system, which would thereby have to be moved, without reimbursing the telephone company for the cost of removal. 174 N.E. at 587.

The Baltimore case involved an order by the city directing the Gas and Electric Co. to remove and relocate its facilities from streets vacated to permit their use for the purposes, among others, of constructing (1) a housing project by the Housing Authority and (2) a market by the city. The court held that the city was liable for the cost of removing the facilities from the area where the city market was to be located, because the operation and maintenance of a market puts the city in competition on an equal basis with the utility and therefore its order to relocate was the exercise of a “proprietary” power. However, as to the housing project to be built by the Housing Authority, a public body exercising essential governmental functions according to the Maryland statutes, the court held the utility could be required to bear the cost of relocating its facilities, because in requiring removal of the electric facilities to make the vacated street available for the housing project the authority and the city were performing a governmental function. 192 A.2d at 91.

This relocation of facilities required of Union Electric was necessitated by an urban renewal project: the DeSoto Carr Urban Renewal Project said by Union Electric’s petition to include the Convention Plaza and a privately owned and operated hotel as a' part of St. Louis’ new downtown Convention Center to be developed under authority of the Land Clearance for Redevelopment Authority Law. The primary purpose of the project, the redevelopment or renewal of what is implicitly a blighted area of the city, has been declared legislatively to be a public purpose. The vacation of this block of the city thoroughfare and the requirement that Union Electric remove its facilities therefrom to make the thoroughfare available for use as a part of this project were acts of the City and the Authority in the exercise of a governmental rather than a proprietary function. City of Baltimore v. Baltimore Gas and Electric Co., supra; State on Inf. of Dalton v. Land Clearance for Redevelopment Authority of Kansas City, 364 Mo. 974, 270 S.W.2d 44 (banc 1954); Annbar Associates v. West Side Redevelopment Corp., 397 S.W.2d 635 (Mo. banc 1965); In Matter of Urban Renewal Agency of City of Eugene v. Pacific Northwest Bell Telephone Co., 542 P.2d 908, 911-912 (Or.App.1975); §§ 99.300 to 99.660, supra; St. Louis ordinance No. 56831, § 1. The requirement that Union Electric remove its facilities at its expense is not a “taking” of its property or a denial of due process within the meaning of the provisions of the federal and state constitutions referred to in Union Electric’s petition. Under the facts alleged it has no cause of action.

The judgment is affirmed.

All concur.

      . Ordinance No. 12723 contains 13 sections. Summarized, it provides:
      1. No facilities for the distribution of electricity shall be placed in a public thoroughfare of the city by any person except upon application filed with the Board of Public Improvements, which Board is “authorized * * * to grant a permit” therefor, “with such restrictions, regulations and qualifications as may be prescribed by said Board.”

        2. The “right is * * * reserved to the Board * * * at any time to direct any alterations in the location of said * * * [facilities].”
      3. “No person * * * shall be entitled to * * * the privileges conferred by this ordinance, except upon the following conditions: ” that he file with the City Register his acceptance of the terms of the ordinance and agree that he will (a) file with the city Comptroller annually a statement of gross receipts of his business and pay to the city Treasury 5% of the amount thereof; and (b) “file with the City Register his * * * penal bond [for $20,000] * * * conditioned that he * * * will comply with all the conditions of this ordinance, or any ordinance which may be hereafter passed regulating the placing of * * * [electrical distribution facilities] in [public thoroughfares] for the purposes named therein.”

      . References to sections of the statutes are to RSMo 1969.


text:
    ST. LOUIS COUNTY NATIONAL BANK, Plaintiff-Respondent, v. MARYLAND CASUALTY COMPANY, Defendant-Appellant.
    No. 59625.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1977.

      Robert E. Keaney, St. Louis, for defendant-appellant.
    Edward L. Filippine, Clayton, for plaintiff-respondent.
   HENLEY, Judge.

This is a suit in equity in which St. Louis County National Bank (County National) seeks (1) reformation of a fire insurance policy issued by Maryland Casualty Company (Maryland Casualty) to Hazel Novelty and Cabinet Company (Hazel Company), as insured, covering the contents of the Hazel Company’s business premises located in St. Louis; and (2) a money judgment for the amount of a fire loss of the insured property, with interest. Trial before the court resulted in (1) a decree reforming the policy by naming County National as loss payee as of the beginning date of the policy; and (2) a judgment awarding it $13,626.58: $9,322.88, amount of the loss, and $4,303.70 interest. Maryland Casualty appealed, invoking the jurisdiction of this court on the ground the case involves “the validity of * * * authority exercised under the laws of the United States.” Article V, § 3, Constitution of Missouri (as amended in 1970).

County National insists that this court does not have appellate jurisdiction of the case; that jurisdiction is in the court of appeals. The jurisdiction question has been briefed extensively by both parties. The facts relative to a determination of this question are as follows.

On or about August 31,1965, Hazel Company borrowed money from County National and executed and delivered to it a document bearing that date entitled “Security Agreement, Inventory and Accounts Receivable.” The agreement provided, among other things, that Hazel Company would keep its inventory insured against loss by fire and other hazards and that the policy would contain a loss payable clause to County National as its interest may appear. In due time a “financing statement,” evidence of its security interest, was filed by County National as required by law.

Subsequent to August, 1965, Hazel Company borrowed additional money from County National pursuant to the security agreement, and, at the time of the fire, the amount due thereon exceeded substantially the amount of the fire loss.

A policy providing fire and extended coverage insurance in the amount of $10,000 on the contents of Hazel Company’s business for a term beginning March 18, 1968, and ending March 18,1969, was issued by Maryland Casualty and delivered to the insured. However, for some reason the policy failed to contain a clause making County National a loss payee of the proceeds.

On June 12 and August 2,1968, the Internal Revenue Service (IRS) filed in the office of Recorder of Deeds of the City of St. Louis notices of liens for delinquent taxes owed by Hazel Company to the United States in the total amount of $12,159.01.

On August 24,1968, the contents of Hazel Company’s building were destroyed by fire. The loss resulting from the fire was $9,322.88.

On November 26, 1968, the IRS for the United States served on Maryland Casualty a notice of levy in the sum of $9,325.35 upon all property and rights to property of Hazel Company.

On February 25,1969, Maryland Casualty received from Hazel Company proof of loss arising out of destruction of its property by the fire.

On March 12, 1969, Maryland Casualty issued its draft for $9,322.88 payable to “Hazel Novelty Company; U. S. Treasury, Department of Internal Revenue; St. Louis County National Bank,” and others, as payees, and forwarded it to County National.

County National rejected the draft and returned it to Maryland Casualty. It bore no endorsements at that time.

Maryland Casualty then delivered the draft to the Director of Internal Revenue. The draft was endorsed by the Director and deposited by him in the Federal Reserve Bank to the credit of the Treasurer of the United States. It did not bear the endorsement of County National or Hazel Company. Upon presentation to Maryland Casualty the draft was paid.

There are no allegations in County National’s petition claiming either (1) that the Hazel Company did not owe the United States the taxes described in the notice of liens; or (2) that the authority exercised under the laws of the United States by the Director of Internal Revenue filing the notices of liens against and levying upon the property and property rights of Hazel Company was invalid.

Maryland Casualty, in its answer, asserted that it was on notice of the recorded tax liens and the levy, “and by reason thereof the liens and levy of the U. S. Treasury, Department of Internal Revenue, take priority over any rights * * * claimed by * * * [County National].”

Conclusions of law made and filed by the trial court express clearly the theory upon which it decided this lawsuit. Of those conclusions the following are pertinent to the jurisdictional question presented:

“The policy of insurance should be reformed retroactive to March 18, 1968, the beginning of the term of said policy, to provide that County National is the loss payee of the proceeds of said policy, as its interest may appear.

“Upon the fire which occurred on August 24, 1968, the Hazel Company’s compliance with the provisions of said policy, County National right to the proceeds of said policy of insurance vested.

“The right of County National to the proceeds of said insurance was superior to Hazel Company’s rights in said proceeds and therefore Hazel Company could make no claim to said proceeds.

“Since Hazel Company had no right to the proceeds of said policy of insurance the various tax liens and levies which were filed by the Internal Revenue Service in no way affected County National’s right to said proceeds.

“Maryland Casualty’s payment of the proceeds of said insurance to the Internal Revenue Service in no way affected its obligation to pay said proceeds to County National.”

County National contends that the question presented involves not the validity of the act of the Director of Internal Revenue but the effect thereof.

That part of the “validity” clause of Mo. Const. Art. V, § 3, to which Maryland Casualty refers as authority for its appeal direct to this court appears for the first time in the 1875 constitution (Art. VI, § 12). The court, referring to that clause, said in Kettelhake v. American Car & Foundry Co., 243 Mo. 412, 147 S.W. 479 (1912) that it “evidently contemplates that the jurisdiction of this court ought to be exercised for the protection of officers and other agents of the United States when questioned on account of their lawful acts done by virtue of authority having its foundation in the federal laws.” 147 S.W. at 480.

For this court to have appellate jurisdiction under the clause “validity of any authority exercised under the laws of the United States” three requirements must be met. First, the authority must have been exercised. Salzwedel v. Vassil, 347 S.W.2d 218, 219[3] (Mo.1961). Second, the act drawn in question must have been performed “by an officer or other agent of the United States” under authority of federal law. Sound Investment & Realty Co. v. Griffin, 205 S.W.2d 257, 260[2] (Mo.App.1947); Kettelhake v. American Car & Foundry Co., supra. Third, the validity of the exercised authority and not merely its effect must have been questioned. Bostian v. Milens, 354 Mo. 153, 188 S.W.2d 945, 947[2] (1945). See also Adams Dairy Co. v. Dairy Employees Union, 339 S.W.2d 811, 814[1] (Mo.1960). Cf. Beekman Lumber Co. v. Acme Harvester Co., 215 Mo. 221, 114 S.W. 1087, 1089—90[1] (1908).

The first two requirements obviously have been met: authority has been exercised by an agent of the United States under command of federal law. Has the third requirement been met? We conclude that it has not. County National does not attack or question the validity of the federal statutes under which the Director of Internal Revenue has acted or the validity of the authority he has exercised under the requirements of those statutes. Maryland Casualty, of course, does not attack the validity of the exercised authority; it relies upon it. Its position is that the authority exercised by the Director established the priority of rights claimed by the federal government over rights claimed by County National. Its position in fact addresses the “effect” of exercised authority.

We conclude that the question presented does not involve the “validity” of authority exercised under the laws of the United States, but rather its “effect.” For the reasons stated this court does not have appellate jurisdiction.

The case is transferred to the court of appeals, St. Louis district.

All concur.

      . See Washington University Law Quarterly, December, 1964: “Missouri Appellate Jurisdiction,” § 2.043, pp. 506-510.


author: EUGENE E. NORTHERN, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Bob ALLEN, Defendant-Appellant.
    No. 10402.
    Missouri Court of Appeals, Springfield District.
    Aug. 8, 1977.

      John D. Ashcroft, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    C. R. Rhoades, Pineville, for defendant-appellant.
    Before HOGAN, P. J., and NORTHERN and MOORE, Special Judges.
   EUGENE E. NORTHERN, Special Judge.

A Newton County jury found defendant Bob Allen guilty of burglary in the second degree and stealing, but the jury was unable to agree upon defendant’s punishment. After a timely motion for new trial was filed and overruled, the trial judge ordered the defendant confined in the State Department of Corrections for a term of four years on the charge of burglary in the second degree and a term of four years upon the charge of burglarious stealing and ordered that the sentences were to run consecutively.

The defendant contends on this appeal:

(1) The trial court erred in overruling defendant’s motion for acquittal at the close of the evidence in that the evidence adduced at trial and on the record was insufficient to support a verdict of guilty of burglary in the second degree; and
(2) The trial court erred because it did not, on its own motion, grant a new trial on the ground that the defendant was denied the effective assistance of counsel, in that the trial defense counsel’s representation resulted in the defendant’s trial being a mockery of justice.

In considering the sufficiency of the state’s case after a verdict of guilty, the court accepts as true all of the evidence in the record tending to show defendant’s guilt, whether the same be circumstantial or direct in nature, together with all favorable inferences reasonably to be drawn therefrom. Defendant’s contradictory evidence, if any, is to be disregarded. If a submissible case is made, the truth of the testimony and the reasonableness of the inferences to be drawn are exclusively for the jury. State v. Sallee, 436 S.W.2d 246 (Mo.1969); State v. Brewer, 325 S.W.2d 16-20 (Mo.1959).

Defendant relies upon State v. Farmer, 490 S.W.2d 72 (Mo.1973) in support of his contention that the evidence was insufficient. Defendant’s contention is without merit.

The evidence in this case shows something more than the mere presence with those having joint possession of the stolen property. The evidence shows that the Matters home was broken into sometime between 12:45 p. m. and 3:45 p. m.; that at approximately 1:00 o’clock p. m. or shortly thereafter, defendant left the house occupied by Fannie Verstrait and one Penrod, with Penrod, and in defendant’s station wagon; that about 4:00 or 5:00 o’clock p. m. the same day, defendant and Penrod, accompanied by one Larry Thurston, returned to the house occupied by Verstrait; that items of property taken from the Matters home were taken from defendant’s car and carried into the house (whether defendant carried any of the property from his car into the house is not reflected by the evidence); that defendant and the other two examined the property and all talked about it, Larry Thurston saying that the items were “hot”; that after about an hour, the defendant, Penrod and Thurston took the property and left in defendant’s car; that the next day, defendant returned to the Verstrait house with what appeared to be some of the coins which were among the items brought in and examined the day before. Defendant and Penrod then left with the coin book in defendant’s car, returning later in the day with Thurston. There was “talk” about the coins being sold and defendant, Penrod and Thurston each receiving $40.00; that among the pieces of jewelry contained in a jewelry box, identified as belonging to Matters, was a turquoise ring which was taken from the box by Witness Brenda Wishon, who asked defendant if she could have the ring, and defendant told her she could.

The possession of recently stolen property which will support an inference of guilt may be a joint possession of the accused and others, and such possession need not be separated from all possession by others. State v. Cobb, 444 S.W.2d 408 (Mo. banc 1969); State v. Webb, 432 S.W.2d 218 (Mo.1968); State v. Webb, 382 S.W.2d 601 (Mo.1964); State v. Jordan, 235 S.W.2d 379 (Mo.1951); State v. Prunty, 276 Mo. 359, 208 S.W. 91 (Mo.1918).

Defendant’s contention that he was denied effective assistance of counsel is without merit. The matters complained of by defendant are found in the record. We cannot say from the reading of the record that defendant’s attorney’s failure to make certain objections amounts to a farce or a mockery of justice or is so woefully inadequate as to shock the conscience. Hall v. State, 496 S.W.2d 300 (Mo.App.1973).

Judgment is affirmed.

HOGAN, P. J., and MOORE, Special Judge, concur.


author: SWOFFORD, Presiding Judge.

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Respondent, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant.
    No. KCD 27869.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.

      Laurence R. Tucker, Morris, Mitchell, Larson, King, Stamper & Bold, Kansas City, for appellant.
    Edward H. Sheppard, Charles A. Schliebs, Blackwell, Sanders, Matheny, Weary & Lombari, Kansas City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   SWOFFORD, Presiding Judge.

The underlying facts of this case are that an insured under policies issued by each of the parties hereto sustained a fire loss covered by the insurance. Each of the companies claimed that under the terms of the policies the other company was responsible for the entire loss. They were unable to agree and each paid to the insured a pro rata proportion of the loss. United Services Automobile Association (U.S.A.A.) respondent, thereupon instituted suit against United States Fidelity and Guaranty Company (U.S.F. & G.), appellant, to recover the amount it had paid to the insured, and U.S.F. & G. counterclaimed for the amount it had paid on the loss. The case was tried before the court below, without a jury, on a stipulation of facts, as follows:

“STIPULATION OF FACTS
COMES NOW plaintiff, United Services Automobile Association, (hereinafter U.S.A.A.), and defendant, United States Fidelity and Guaranty Company, (hereinafter U.S.F. & G.), and stipulate for the purposes of this case only that the following facts are true:
1. Jurisdiction and venue of the parties are proper.
2. On or about January 24,1970, a fire at the residence of LTC. Paul E. Brown, 4301 North Central, Kansas City, Missouri, caused damage to his household goods and personal property. The total fire loss to his household goods and personal property amounted to Nine Thousand Four Hundred Eighy-Eight (sic) and 22/ioo ($9,488.22) Dollars.
3. On or about January 24, 1970, U.S. A.A. had in force an insurance policy, titled ‘Household Goods and Personal Effects Floater’, No. 124044-50, insuring personal property and household goods owned by its insured, Paul Brown, a specimen copy of that policy is attached hereto, marked Exhibit A, and is made a part hereof.
4. On or about January 24, 1970, U.S.F. & G. had in force a homeowner’s policy, No. HOU1023572, insuring the dwelling at 4301 Central (sic), Kansas City, Missouri, personal property and household goods owned by its insureds, Paul E. & Rachel E. Brown, a specimen copy of that policy is attached hereto, marked Exhibit B, and made a part hereof.
5. U.S.A.A.’s policy No. 124044-50 stated under Condition 4:
‘OTHER INSURANCE: If at the time of loss or damage there is: (a) property separately described and specifically insured, or (b) trip-transit insurance in force which would attach on the property insured hereunder had this policy not been effected, then this insurance shall apply as excess insurance over the liability of such other insurance; and in event there is other (than specified) valid insurance covering on said loss, payment shall be prorated on the basis of the total insurance applicable thereon.’
6. U.S.F. & G.’s policy No. HOU1023572 provided under MIC-4 ‘Description of Property and Interests Covered’, Coverage C — ‘Unscheduled Personal Property’, section 1, ‘On premises’:
‘This coverage does not include: . property which is separately described and specifically insured in whole or in part by this or any other insurance.’
7. U.S.A.A. made demand upon U.S.F. & G. to pay the total fire damage claim submitted by insured Brown alleging that U.S.F. & G.’s policy afforded specific primary coverage to the personal property and household goods of Paul E. & Rachel E. Brown, located at 4301 North Central, Kansas City, Missouri, and alleging that U.S.A.A.’s policy was a general policy affording only excess coverage.
8. U.S.F. & G. refused to pay the total amount of the fire damage claim alleging that whereas U.S.A.A.’s policy’s ‘Other Insurance’ exclusion permitted the policy to be excess, U.S.F. & G.’s policy’s ‘Other Insurance’ exclusion forbade any coverage in the presence of other insurance, therefore U.S.A.A.’s policy is primary and should provide the full coverage.
9. Because both parties refused to pay the full amount of the fire damage claim U.S.A.A., on or about May 4,1970, transmitted Six Thousand Four Hundred Sixty-Nine and ^/ioo ($6,469.24) Dollars to its insured, Paul. E. Brown, and its prorata share of the fire loss as in return took a ‘Loan Receipt’ signed by Brown. A copy of the ‘Loan Receipt’ is attached hereto, marked Exhibit D, and made a part hereof. U.S.F. & G., on or about April 15, 1970, transmitted to its insureds, Paul E. ad Rachel E. Brown, the amount of Eight Thousand Fifty-One and “Aoo ($8,051.65) Dollars of which Three Thousand Eighteen and 98/ioo ($3,018.98) Dollars was for unscheduled personal property as its pro-rata share of the fire loss. A copy of the draft made out in payment to Paul E. and Rachel E. Brown and a copy of the Proof of Loss are attached hereto, marked Exhibits E & F, and made a part hereof.
10. U.S.A.A. prays judgment against U.S.F. & G. in the amount of Six Thousand Four Hundred Sixty-Nine and ^/ioo ($6,469.24) Dollars and its costs as the amount allegedly owing under the terms of U.S.F. & G.’s policy No. HOU1023572 as sole primary coverage, and U.S.F. & G. prays judgment against U.S.A.A. in the amount of Three Thousand Eighteen and 98/ioo ($3,018.98) Dollars and its costs as the amount allegedly owing under the U.S.A.A.⅛ policy No. 124044-50 as sole primary coverage.”

The court below entered a judgment in favor of U.S.A.A. on its petition and against U.S.F. & G. on its counterclaim. From that judgment U.S.F. & G. appeals.

U.S.F. & G. advances one point on appeal. It urges that the trial court erred in awarding judgment to U.S.A.A. because the evidence failed to support such finding for three reasons. (IA) The U.S.A.A. insurance policy is no less specific in its coverage than that of the U.S.F. & G. policy and as a result the “other insurance” clause in the U.S.A.A. policy is of no effect and therefore such policy is primary in coverage. (IB) The “other insurance” clauses in the policies are mutually repugnant and therefore, the fire loss suffered by the insured should be prorated. (IC) U.S.A.A. was a “volunteer” in making its payment to the insured and thus cannot recover the funds already paid.

A correct resolution of these arguments initially requires an analysis of the pertinent provisions of the two policies here involved so that they may be categorized as to the type of coverage afforded by each.

U.S.A.A. POLICY

This policy is designated as a “Household Goods and Personal Effects Floater.” It provides:

“PROPERTY COVERED
This policy insures personal property owned by or in the custody of the insured and dependent members of his family, if residents of the same household, within the following classifications: personal effects, clothing, uniforms, household goods, non-professional books, collections, sports and hobby equipment, military equipment of all kinds; the equipment and accessories of motor vehicles, trailers and boats while detached from and not being used with a motor vehicle, trailer or boat (provided such equipment and accessories are not otherwise insured); professional instruments, books and other equipment provided such property is not being currently used in private profession.”
* * ⅜ * * ⅝
“POLICY PERIOD, TERRITORY
(a) This policy applies only to losses or damage occurring during the policy period, and
(b) This policy is valid World-Wide.” (Emphasis supplied)
* * * * * *
“4. OTHER INSURANCE. If at the time of loss or damage there is: (a) property separately described and specifically insured, . . . then this insurance
shall apply as excess insurance over the liability of such other insurance; and in event there is other (than specified) valid insurance covering on said loss, payment shall be pro rated on the basis of the total insurance applicable thereon.”

U.S.F. & G. POLICY

This policy is designated “Homeowners Policy” and the form and endorsement here involved is designated “Residence Contents — Broad Form”. It provides:

“DESCRIPTION OF PROPERTY AND INTERESTS COVERED
COVERAGE C — UNSCHEDULED PERSONAL PROPERTY.
‘1. On Premises: This policy covers unscheduled personal property usual or incidental to the occupancy of the premises as a dwelling, owned, worn or used by an Insured, while on the premises, or at the option of the Named Insured, owned by others while on the portion of the premises occupied exclusively by the Insured.
‘This coverage does not include: . property which is separately described and specifically insured in whole or in part by this or any other insurance.’ * * * * * *
‘This company shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering the property against the peril involved, whether collectible or not.’ ” (Emphasis supplied)

None of the property, the loss of which is here involved, was specifically scheduled in either policy.

Insurance texts and cases have come to recognize a well marked and fundamental difference between a “floater” policy of insurance and a “specific” policy of insurance as relating to personal property, and now recognize the limits of responsibility for coverage as between an insurer under a floater policy and an insurer under a specific policy, as regards the same property.

In 6 Appleman, Insurance Law and Practice, Section 3912, pp. 481-485, these general principles are thus stated:

“A blanket, compound, or floater policy is written upon a risk as a whole, embracing whatever articles or items are included therein, often changing in its nature, in contravention thereto, a specific policy is one which allocates the amount of the risk in stated values upon the several items embraced in the coverage, or covers property at a designated location for a stated amount, or insures against a specific peril. In making an apportionment between blanket and specific policies, it is necessary that a rule be adopted that will give the insured complete indemnity for his loss. A blanket or floating policy is only intended to supplement specific insurance, and it cannot become operative until the specific insurance has become exhausted. A provision of a blanket policy that it should attach only after the specific insurance had been exhausted referred to specific insurance in effect at the time of the loss, and not at the time of the issuance of the policy. And specific insurance is deemed exhausted when the insured has collected all that can be collected for a loss arising from a risk insured against.
If the specific insurance exceeds the value of the property destroyed, the insurer under a blanket policy will not be liable for a pro rata share of the loss.” (Emphasis added)

In Wilson & Co. v. Hartford Fire Ins. Co., 300 Mo. 1, 254 S.W. 266, 282 [18] (1923), a landmark case, the rule is stated as follows:

“ * * * The texts and cases tell us that a floating policy is one intended to supplement specific insurance on property, and attaches only when the latter ceases to cover the risk, [citations omitted]. The reason for the creation and the purpose of this character of policy is to provide indemnity for property which cannot, because of its frequent change in location and quantity, be covered by specific insurance, [citations omitted].
Floating or surplus insurance is a form of indemnity not infrequently resorted to, especially when the property insured is of such a nature as not to admit of a gross valuation. By its terms it cannot become operative until the prior insurance has been exhausted. * * * ”

Citing Wilson & Co. v. Hartford Fire Ins. Co., supra, the court in Davis Yarn Co. v. Brooklyn Yarn Dye Co., 293 N.Y. 236, 56 N.E.2d 564, 571-572 [5] (1944), said:

“ ‘ * * * The term ‘specific’ as applied in insurance phraseology is frequently used in contrast with blanket insurance, the former denoting coverage of a particular piece of property or property at a specific location, as contrasted with the latter which covers the same and other property in several different locations.’ * * *» (First emphasis the Court’s; second emphasis added)

For other cases citing and following Wilson, supra, see: Jorski Mill & Elevator Co. v. Farmers Elevator Mut. Ins. Co., 404 F.2d 143, 146 [2, 3] (10 Cir. 1968); Morgan v. Badger Mutual Insurance Company, 192 F.Supp. 249, 252 [6] (D.C. 1961), stating, “Floating insurance by its terms cannot be operative until prior insurance is exhausted.” See also, Annot. 13 A.L.R.2d 705, 717— 718 (1950); Annot. 169 A.L.R. 384, 390-391 (1947).

An analysis of the two insurance policies here involved leads to the inevitable conclusion that the U.S.A.A. policy is a blanket or floater policy. Not only is it so designated in unequivocal terms, but it covers certain classes of personal property upon a “world-wide” basis. Coverage not definite as to the location of the property insured is a distinctive characteristic of a floater policy. Wilson & Co. v. Hartford, supra.

On the other hand, the U.S.F. & G. policy is designated “Homeowners Policy” and among other types of coverage afforded insurers “C. Unscheduled Personal Property” located at the premises of the insured at 4301 North Central, Kansas City, Missouri (which dwelling was also insured) where the fire causing the loss occurred, to the limit of $14,000.00. It thus falls squarely within the characteristics peculiar to specific insurance as noted in Appleman, and Wilson & Co. v. Hartford, supra, in that it covers property at a designated location for a stated amount.

Since the U.S.A.A. policy affords blanket or floater coverage and the U.S.F. & G. is a specific coverage policy under the principles above discussed, the latter affords primary coverage and the former is only supplemental or excess coverage and responsibility attaches under it only when the specific coverage has been exhausted.

In Hale v. Central Mfrs. Mut. Ins. Co., 93 S.W.2d 271, 274 [5] (Mo.App. 1936), the suit involved a claim upon a blanket fire insurance policy containing a provision that the insurance provided attached only after specific insurance had been exhausted. The court held that such exhaustion of specific insurance was a condition precedent to any right to recover under the blanket or floater policy. See also, Morgan v. Badger Mutual Insurance Company, 192 F.Supp. 249, 252 [5] (D.C. 1961).

Since the U.S.F. & G. coverage exceeded the total amount of the loss, no liability existed under U.S.A.A.’s policy. Appellant’s Point IA is ruled against it.

U.S.F. & G. urges (IB) as an alternative, that the “other insurance” clauses in the policies are repugnant and mutually destructive and, therefore, the loss was properly prorated as between the companies. Such contention is invalid in light of the fact that the policies here fall in distinct and different categories and insure against different losses in different areas, as above concluded. No difficulty is encountered in giving effect to all of the provisions, including the “other insurance” clauses in each policy. Had there been other excess or floater insurance, any loss over and above the amount of specific insurance would properly be prorated as between U.S.A.A. and such other insurer. The same result would be required had there been other specific insurance under the “other insurance” clause in the U.S.F. & G. policy. In Hale v. Central Mfrs. Mut. Co., supra, the court was called upon to interpret an “other insurance” clause in a floater or excess insurance policy and stated, l.c. 275 [8]:

“ * * * It obviously has no application until the policy covers and attaches, and this does not occur until the specific insurance has been exhausted. The effect of the provision is to limit defendant’s liability for any loss or damage over and above the specific insurance to such proportion of such loss and damage as the amount of policy in suit bears to all the excess insurance covering the property, if there is any other excess insurance. It necessarily refers to the excess loss and damage, because the policy covers and attaches only after the specific insurance is exhausted. A similar provision appeared in the blanket policy involved in Wilson Co. v. Hartford Fire Ins. Co., supra, and the Supreme Court held that the blanket policy did not apply until the specific insurance granted by the Hartford Company had been exhausted.” (Emphasis supplied)

The reasoning thus advanced logically applies with equal force to the “other insur-anee” provision of U.S.F. & G.’s policy, and it would be entitled to pro rata contribution only from other primary carriers not from excess or floater carriers.

Point IB is ruled against appellant.

Appellant’s third point (IC) that U.S.A.A., by paying the insured, under a loan receipt, a portion of his loss, became a volunteer and is, therefore, not entitled to recover from U.S.F. & G. is without merit. From the stipulated facts it is conceded that from the outset, U.S.A.A. contended that U.S.F. & G. was liable for the whole loss and U.S.F. & G. refused to pay the whole loss. Stipulation of Facts, paragraphs 7, 8, 9 and 10. It is also apparent that both companies recognizing a forthcoming protracted dispute over coverage and in the public interest that fire losses of this kind be promptly paid, did in fact jointly satisfy the insured’s loss. It was salutary and morally proper that they do this. In so doing, it is obvious that neither company intended to waive any rights or claims that they might have against the other. And neither by so doing became a volunteer in the legal sense. The sole authority relied upon by the appellant, Commercial Union Ins. Co. v. Farmers Mut. Fire Ins. Co., 457 S.W.2d 224 (Mo.App. 1970) has been carefully reviewed and analyzed and is found to be factually inapposite and is not persuasive authority supportive of appellant’s position. Point IC is ruled against appellant.

The judgment is affirmed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    Robert WILBORN, Respondent, v. Cecil WILLIAMS, a sole trader d/b/a Ace Log & Lumber Company, Appellant.
    No. KCD 27901.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.

      Larry E. Tate, Boonville, for appellant.
    Scott 0. Wright, Brown, Wright, Willb-rand & Simon, Columbia, for respondent.
    Before SOMERVILLE, P. J. and WAS-SERSTROM and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Plaintiff (hereinafter referred to as employee) prevailed in a jury tried two count action against defendant (hereinafter referred to as employer) for unpaid commissions (Count I) and unpaid wages (Count II) involving purchases of timber.

Employer seeks reversal of the judgments and remand for a new trial because (1) “Plaintiff’s Exhibit # 15 Was Not the Best Evidence and the Court Erred in Admitting Same”, and (2) “The Closing Argument of Counsel for Plaintiff Was so Prejudicial As to Deprive Defendant of a Fair and Impartial Trial.”

The first point, which relates solely to employee’s claim for unpaid wages, arises in the following context. The claim for unpaid wages centered around certain weekends during which employee claimed he worked for employer but for which he was never compensated. Employee orally testified that during the overall period of his employment he worked every weekend, with certain exceptions delineated by dates, for which he was never compensated as initially agreed to between himself and his employer. After orally testifying, without objection, as to the weekends he did and did not work during the overall period of his employment, employee identified what has been designated as Plaintiff’s Exhibit No. 15. The controversial exhibit, with one glaring exception, was a written recapitulation of employee’s oral testimony regarding the weekends during which he did and did not work throughout the course of his employment. The glaring exception being that the exhibit, as opposed to employee’s oral testimony, listed an additional weekend during which employee had not worked. The same was admitted into evidence over employer’s objection that it was not the “best evidence”. Employer’s objection to Plaintiff’s Exhibit No. 15 on the ground that it was not the “best evidence” was posited on the fact that preliminary cross-examination of employee by employer’s counsel revealed that it was prepared from dates marked on a calendar by employee’s wife. During trial the calendar’s present location was unaccounted for.

Employer does not suggest or intimate that Plaintiff’s Exhibit No. 15 was offered for the purpose of proving the contents of the calendar. It is patently obvious that it was offered to identify those weekends during which employee worked for employer within the course of the employer-employee relationship and to substantiate and support employee’s oral testimony in that respect. Ergo, employer’s objection to the exhibit as not constituting the “best evidence” is not well taken. As pointed out in Aviation Enterprises, Inc. v. Cline, 395 S.W.2d 306, 308 (Mo.App.1965), “where the contents of the writing is not directly in issue, although the evidence contained in the writing may bear upon a fundamental issue in the case, . . . the best evidence rule does not apply and secondary evidence may be used without accounting for the original document.” Jones in his treatise on evidence explains this somewhat enigmatic aspect of the best evidence rule as follows: “Thus two distinct rules are involved, the one relating to proof of what the instrument contains and the other relating to the probative effect of its recitals. The best evidence rule applies only in the ease of the former. So if the writing is admissible to prove the facts which are recited therein, it may or may not have greater weight than oral testimony of the same facts; but the best evidence rule does not apply,- and oral testimony and the writing are equally admissible except as limitations may be imposed by some other exclusionary rule of evidence.” 2 Jones on Evidence, § 7.4, p. 96 (6th ed. 1972).

Assuming, arguendo, that employer had lodged a valid objection to said exhibit, the following undisputed fact militates against employer’s reliance upon the admission of said exhibit as an ironclad ground for appellate relief. During his oral testimony employee stated that he worked every weekend except three. The controversial exhibit not only disclosed that employee failed to work the three weekends mentioned in his oral testimony, but also disclosed an additional weekend during which employee had not worked. As held in Young v. Griesbauer, 183 S.W.2d 917, 920 (Mo.App.1944), “the law is settled that an appellant cannot be heard to complain of errors committed in his own favor or by which he is not prejudiced.” No solace is found for employer in his first point.

By way of his second and final point, employer contends that “[t]he closing argument of counsel for plaintiff was so prejudicial as to deprive defendant of a fair and impartial trial.” Suffice it to say, the complained of portions of the closing argument contained certain epithets, “mad” and “bullheaded”, directed towards employer. It is important, however, to place the complained of portions of the closing argument of employee’s counsel in proper perspective. Doing so requires taking cognizance of the undeniable fact that employer failed to object to the matters presently complained of during the course of the argument. His first objection thereto was asserted in his motion for new trial and rejected by the trial court. As employer failed to object to the epithets when they were cast by employee’s counsel during closing argument, the trial court was precluded any opportunity to timely redress their belatedly alleged prejudicial effect. Under these circumstances, employer is deemed to have waived any right to complain about them on appeal. See Speicher v. Dunn, 530 S.W.2d 45, 47 (Mo.App.1975), and cases cited therein. Employer’s second and final point is legally inert and does not justify disturbance of the jury verdicts and the ensuing judgments rendered.

Judgments affirmed.

All concur.


author: PER CURIAM.

text:
    J. A. ELLIOTT, Plaintiff-Appellant, v. Luella EMPSON, Defendant-Respondent.
    No. KCD 27971.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.

      David R. Smalley, Kansas City, for plaintiff-appellant.
    Graham, Paden, Welch, Martin & Albano, Michael J. Albano, Independence, for defendant-respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   PER CURIAM.

This case was bench tried in the circuit court on appeal from a magistrate court. It is a suit by an attorney (hereinafter referred to as plaintiff) for payment of legal services rendered to a wife (hereinafter referred to as defendant) in a divorce action and a subsequent modification proceeding which did not reach fruition. Although plaintiff prayed for a judgment in the amount of $2,375.00, the trial court entered judgment in plaintiff’s favor in the amount of $875.00, and plaintiff has appealed.

A minimal statement of facts will suffice. Although defendant engaged plaintiff to represent her in the legal matters above-mentioned, no hourly rate or overall compensation for said services was ever agreed to or fixed. At the conclusion of all matters, plaintiff, by mail, submitted statements to defendant totaling $5,025.00 for services. Defendant thereafter paid plaintiff varying amounts at various intervals totaling $2,650.00, and then ceased and refused to pay any further amount. Plaintiff thereafter initiated suit against defendant and in his petition pleaded that he had rendered “good and valuable services to and for defendant in a reasonable amount of $5,025.00”, that defendant had paid $2,650.00, and that a “balance” was “due for said services in the amount of $2,375.00.”

On appeal, plaintiff relies upon a single point for relief: “The Trial Court Erred and Abused Its Discretion in Finding the Amount Due Plaintiff to Be $875.00 When the Evidence Showed Plaintiff Was Entitled to Recover $2,375 As an Account Stated.” (Emphasis added.) At the trial court level, plaintiff’s petition and his own testimony conclusively disclaimed an account stated as being the theory relied upon for recovery. This being the case, reliance upon a different theory on appeal will not be countenanced. Morris v. Kansas City, 391 S.W.2d 198, 200 (Mo.1965); Herrick Motor Co. v. Fischer Oldsmobile Co., 421 S.W.2d 58, 63 (Mo.App.1967); and Smith v. G.F.C. Corp., 255 S.W.2d 69, 71 (Mo.App.1953).

The trial court, on the basis of the pleadings and the evidence, correctly perceived plaintiff’s theory of recovery as being in quantum meruit as no hourly rate or overall compensation was ever fixed or agreed to between plaintiff and defendant initially or at any other time during the attorney-client relationship. Leggett v. Mutual Commerce Casualty Co., 250 S.W.2d 995, 998 (Mo.1952); and Mecartney v. Guardian Trust Co., 274 Mo. 224, 202 S.W. 1131, 1136 (1918).

Plaintiff testified that his total fee of $5,025.00 was based solely upon the time he spent on defendant’s behalf. The total fee divided by the number of hours spent, 116.4 hours, reveals that plaintiff was claiming $43.17 per hour for his services. Plaintiff further testified that the prevailing hourly rate charged by attorneys in the greater Kansas City area at the time for handling domestic relations matters ran “from $30 to $50 per hour.” In view of the total hours incurred, the judgment rendered by the trial court, coupled with the amounts previously paid by defendant to plaintiff, fell within the range just mentioned. Under the standard of appellate review of court tried cases laid down in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976), the judgment below should be sustained.

As an extended opinion in this case would have no precedential value, the judgment is affirmed in accordance with Rule 84.16(b).

All concur.


text:
    Gene TOSTON, Respondent, v. Harry McCRACKEN and Junior Gillespie, a partnership d/b/a Harley-Davidson Sales & Service, Appellants.
    No. KCD 28089.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.

      J. Turner Jones, Hiram G. Watson, Jones & Watson, Columbia, of counsel, for appellants.
    Scott 0. Wright, Brown, Wright, Will-brand & Simon, Columbia, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   SWOFFORD, Presiding Judge.

This is an appeal from a money judgment entered on a jury verdict for $2,945.00 in favor of respondent (plaintiff) and against the appellants (defendants). The judgment was for the value of a Harley-Davidson motorcycle which the plaintiff, as bailor, had left with the defendants, as bailees, for check-up and service at their place of business in Columbia, Missouri. The vehicle was stolen from the business establishment of the defendant and never recovered nor the thief or thieves apprehended. After an unavailing motion for a new trial, defendants appeal.

They raise two points or assignments of error upon which they seek reversal of the judgment: First, that the trial court erred in failing to sustain defendants’ motion for a directed verdict at the close of all the evidence because (A) the evidence showed as a matter of law that the motorcycle was stolen from their place of business and that they exercised ordinary care to safeguard the motorcycle from being stolen; and (B) the evidence showed as a matter of law that any negligence of the defendants was not the proximate cause of the theft of plaintiff’s motorcycle. Second, that the court erred in giving Plaintiff’s Instruction No. 3 because no submissible evidence was presented from which a jury could find that the leaving of the key in the ignition of the motorcycle constituted negligence.

Since both of these points call into question the sufficiency of the evidence, it is necessary to summarize the evidence supportive of the judgment.

The defendants are partners and operate a Harley-Davidson motorcycle dealership. The plaintiff was the owner of a 1200 cc Harley-Davidson motorcycle valued at $2,949.00-$2,960.00. On April 30, 1974, the plaintiff took this machine to the defendants’ place of business for a 1000 mile check-up and service. The defendants agreed to perform the work and asked that the machine be left with them for that purpose. The machine was equipped with a self-starter which was activated by an ignition key. At the defendants’ request, the plaintiff left this key with the machine.

The next day when the plaintiff returned to get his machine, he was told that it had been stolen. The motorcycle was never recovered and the plaintiff was not paid for its loss.

The defendants rent the first floor of a concrete block building. The basement thereof is leased to another tenant. The space occupied by the defendants consists of one large room with a small office and rest room partitioned off in a back corner. On the front of these quarters there are two large overhead doors and a walk-in door. It has several steel casement multi-pane windows along each side and at the back which are not barred or otherwise protected. The ground on which this building sits slopes toward the rear and access is gained to the basement area by means of two large doors which slide sideways on tracks. It is apparent from the photographs in evidence that by walking on a retaining wall at the back of the building and across the tracks upon which the basement doors slide easy access is attainable to the windows in the rear wall of defendants’ premises.

At closing time the evening that plaintiff brought his machine in for service, the defendant Gillespie either locked all doors and windows on the premises or checked to see that they were locked. The next morning it was discovered that the glass of one of the windows at the back had been broken, the window was unlocked, and plaintiff’s machine had been stolen. At the time the shop was closed the preceding evening some work had been done on the plaintiff’s motorcycle. Some of its parts were placed on a rag beside the machine. All of these parts, except the seat and a gasket, were missing the morning the theft was discovered. The timing plug had been removed. When this plug is out and the motorcycle is started, it sprays oil. Such an oil spray was discovered in the vicinity of one of the overhead doors at the front of the shop, which door was also unlocked and open the morning the theft was discovered.

The case was submitted to the jury on the theory of bailees’ (defendants’) failure to exercise ordinary care to safeguard the property of the bailor (plaintiff) in that the bailees negligently left the key in the ignition of the motorcycle the night it was stolen.

The evidence supported a finding that when a machine was received by the defendants for service it was required that the ignition key be left and the plaintiff either left the key in his machine or handed it to one of the defendants; that the key was necessary to start plaintiff’s motorcycle; and, that the keys were left in customers’ machines that were being serviced when they were inside the building at night. There was no dispute that the ignition key facilitates the starting of a motorcycle and its movement and makes it easier to steal.

There were 20 or 30 new motorcycles which the defendants had for sale in the shop the night of the theft and the ignition keys were removed from them and placed in the office or on a key board in the vicinity of the office. None of these machines had been tampered with or stolen. Two other customers’ machines in the shop for service had been moved or tampered with. The plaintiff’s machine was the only one stolen.

Defendant McCracken does not remember specifically if the ignition key was in the plaintiff’s machine when he closed up the shop on the evening before the theft was discovered but according to the custom and practice of the business it would be left there and the key to plaintiff’s machine was never located following the theft.

The defendants had leased the premises here involved since 1969 and during that period the place had been broken into three or four times. As a result, the defendants had installed a wire screen on the front walk-in door and removed any cash on the premises at night. Both of the defendants were thus aware that the building was not secure.

This case must be ruled with certain general principles in mind concerning the law of bailments. A bailment for the mutual benefit of both bailor and bailee (as in the case at bar) requires the bailee, although not an insurer, to exercise ordinary care in the handling and safekeeping of the property bailed. While the underlying relationship of the bailor and bailee is contractual, the bailees’ liability (on this record) must be predicated upon negligence or tort principles. 8 Am.Jur.2d, Bailments, Sections 206-207; McKnight v. Batrick, 49 S.W.2d 277, 280 [1-4] (Mo.App.1932); Nuell v. Forty-North Corporation, 358 S.W.2d 70, 75 [3-5] (Mo.App.1962); Crow Contracting Corp. v. George F. Smith Co., 407 S.W.2d 593, 597 [2,4] (Mo.App.1966). More precisely the plaintiff’s cause of action is predicated upon the proposition as stated in 61A C.J.S. Motor Vehicles § 726, p. 649, “A garage keeper is liable for the loss by theft of a motor vehicle stored in his garage where he failed to use ordinary care to prevent the theft * * *.” The fact that the plaintiff’s machine was stolen from the defendants’ premises is not, as here claimed, a defense to the action as a matter of law. As was stated in Nuell v. Forty-North Corporation, supra, at l.c. 75 [4]:

“ * * * However, a bailee for the mutual benefit of both parties is not an insurer, and he may exculpate his failure to return the property to the bailor by showing that its loss or damage was not due to his failure to exercise ordinary diligence, but was due to an inevitable accident, commonly called an act of God, or to an overpowering and irresistible force, as a hostile army. Story on Bail-ments, Sec. 25, p. 25. Robbery by force is classed by that authority as an irresistible force, but mere theft is not. Story, Sec. 27, p. 27. And see McEvers v. The Sangamon, 22 Mo. 187; Halyard v. Dechelman, 29 Mo. 459; Clark v. Shrimski, 77 Mo.App. 166.” (Emphasis supplied)

Whether the loss by theft of a vehicle while in the care of a bailee-garageman is due to the bailee’s failure to exercise ordinary care and whether such negligence was the proximate cause of the loss is generally for the determination of the trier of the facts under the circumstances of a particular case. McKnight v. Batrick, supra, at l.c. 280 [5, 7].

Stating the issue presented here even more precisely, can this negligence action be successfully maintained against the bailees-garagemen who left the keys to plaintiff’s motorcycle in the ignition inside an unattended, but locked, building over night, which vehicle was stolen by someone breaking into the building, under the facts and circumstances as shown by the evidence?

No Missouri decisions dealing directly with this problem are cited in the briefs nor have been found by independent research. Authorities from other jurisdictions dealing with this general subject of negligence of bailee and proximate causation are split and diametrically at odds. Of course, each case must be judged by the particular facts and circumstances of that case and many of the authorities denying recovery are clearly distinguishable on their facts. The persuasive authorities, nearer to the facts in this record and more in line with the general Missouri law on bailments are to be found in Loving v. Howard Lare, Inc., 344 Mich. 97, 73 N.W.2d 290 (1955); Fortner v. Carnes, 258 S.C. 455, 189 S.E.2d 24 (1972); Leatherman v. Miller’s Mutual Fire Ins. Co. of Texas, 297 So.2d 540 (La.App.1974); Edmondson v. Harris, 256 Ark. 763, 510 S.W.2d 290 (1974).

In this case, the matter of the bailees’ failure to exercise ordinary care to safeguard the bailor’s property and the matter of proximate causation was properly for the determination of the jury.

The jury could reasonably find that the premises of the bailees was subject to easy illegal entry; that the bailees left the ignition key in the plaintiff’s machine and left it unattended; that the ignition key was necessary to start the machine; that it was in fact started in the vicinity of one of the front doors and removed from the premises; that the bailees applied a different standard of care to the safeguarding o'f their own machines than to those of their customers; and that as a result, they failed to use that degree of care imposed upon them by law and were negligent. Further, the jury could reasonably find from the evidence that as a direct and proximate result of this negligence the plaintiff’s motorcycle was stolen and lost to him to his damage. The appellants’ Points IA and IB are ruled against them.

Having reached this conclusion, it necessarily follows that since the case was properly submitted to the jury, the appellants’ Point II must likewise be ruled against them. The basis of their attack upon respondent’s Instruction No. 3 rests upon the same reasons and arguments advanced as to the sufficiency of the evidence.

The judgment is affirmed.

All concur.

      . As was said in Fortner v. Carnes, supra, 189 S.E.2d at l.c. 28: “ * ⅜ * In a bailment case the theft itself constitutes injury or loss to the bailor and there is no act of a third party intervening between any negligence of the bailee and the injury or loss.”


author: TURNAGE, Judge.

text:
    William E. SHULL, Respondent, v. CITY OF KANSAS CITY, Missouri, Appellant.
    No. KCD 28180.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.
    Aaron A. Wilson, City Atty., Dan G. Jackson III, Asst. City Atty., Kansas City, for appellant.
    William E. Shull, Robert G. Duncan, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and WASSERSTROM and TURNAGE, JJ.
   TURNAGE, Judge.

William E. Shull, an attorney, seeks to recover from the City of Kansas City the sum of $300 allowed him by a municipal judge of the City for representing three indigent defendants. The circuit court found against the City.

On this appeal the City contends the municipal court was without authority to allow an attorney fee as costs and attorneys cannot recover compensation for performing duties under appointment by the court. Reversed.

This cause was submitted to the circuit court upon a stipulation of facts. It appears the City entered into a contract with the Legal Aid and Defender Society of Kansas City to provide representation to indigent defendants appearing in the municipal court of Kansas City. In December, 1973, three indigent defendants appeared in municipal court and the stipulation stated:

The court, its personnel, and the plaintiff (Shull), at the direction of the court, conducted an exhaustive and extensive search for employees of the Kansas City Legal Aid and Defender Society who normally represent indigent defendants in the court, but were unable to locate same.

The stipulation further stated the defendants insisted on an immediate and prompt hearing on the merits of their cases.

The defendants were appearing in municipal court on the day their cases were originally set without any previous continuances. There is no showing as to how long the search for an attorney from the Legal Aid Society continued nor is there any showing of any inability on the part of the Legal Aid Society to represent these defendants other than the temporary inability to locate one of their attorneys.

Shull represented the three defendants and thereafter presented a motion to the municipal judge, before whom the cases were tried, in which he requested the allowance of an attorney fee. The judge entered an order allowing Shull $300, and assessed the same as costs and directed the City to pay such sum to Shull.

The City contends the order of the municipal judge is beyond his authority because § 22.33 of the general ordinances of the City provides “that in no case shall the City be liable for any costs assessed in municipal court.”

Shull does not point to any provision which allows compensation to an appointed attorney to be assessed as costs in municipal court. In State ex rel. Cain v. Mitchell, 543 S.W.2d 785, 786 (Mo. banc 1976) the court stated: “Even more compelling are holdings in this state that the term ‘costs’ as used in a statute does not include attorneys’ fees, with certain exceptions.” None of these exceptions applies here.

The provision in the ordinances of the City, together with the general rule quoted from Cain indicate the order allowing Shull an attorney fee cannot be sustained on the basis it is part of the costs in the case.

The City contends Shull is not entitled to recover compensation for services rendered pursuant to an appointment. Shull counters by arguing the court has inherent power to appoint an attorney to represent an indigent defendant. Shull further relies on State v. Green, 470 S.W.2d 571 (Mo. banc 1971) in which the court held that after September 1, 1972, attorneys in this State would not be compelled to discharge alone the duty of representing indigent defendants in criminal cases. However, in Green the court reversed an award of attorney fees and stated the question was one for the legislative branch.

In State v. Becker, 351 Mo. 769, 174 S.W.2d 181, 184 [4, 5] (1943) the court stated:

It is the general rule and the better reasoned view that “in the absence of statute providing therefor, an attorney who has been assigned by the court to defend an indigent accused cannot recover compensation therefor from the public” (Annotations 130 A.L.R. 1439, 1440; 36 L.R.A., N.S., 377-383), either for trying the case or for appealing it. Annotation 100 A.L.R. 321, 331.

The court in Becker specifically rejected the inherent authority of the court argument. From its holding in Becker to the decision in Cain, the Supreme Court has refused to order appointed attorneys compensated from public funds either on the theory of assessing the amount as costs or under the inherent power of the court.

The City of Kansas City has made provision for the representation of indigent defendants in municipal court. Absent a provision in the ordinances of the City to compensate Shull for his services, there is no obligation on the City to do so.

The judgment is reversed.

All concur.


text:
    In the Matter of the alleged incompetency of Harriet Margaret Roots. Harriet Margaret ROOTS and Thomas J. Nurnberger, Appellants, v. Robert L. REID, Jr., Respondent.
    Nos. 28264, 28265.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.
    Dale, Flynn, Bauman & Liles, Joseph L. Flynn, St. Joseph, for Roots.
    Grace S. Day, St. Joseph, for Nurnberger.
    Michael Paul Harris, St. Joseph, for respondent.
    Before DIXON, P. J., and WASSER-STROM and TURNAGE, JJ.
   TURNAGE, Judge.

This action began in the probate court with an application filed by Robert L. Reid, Jr., the public administrator, and an application by Thomas J. Nurnberger, a nephew, in which each requested to be appointed the guardian of the person and estate of Harriet Margaret Roots. The probate court appointed the public administrator.

On appeal to the circuit court, and after a full hearing in that court, the public administrator was appointed as guardian of both the person and estate of Mrs. Roots. This appeal is by Mrs. Roots and Thomas Nurn-berger.

Roots and Nurnberger contend in this court the circuit court erred in appointing the public administrator when Nurnberger as a blood relative was fully qualified to serve as guardian. Reversed.

At the hearing in the circuit court a psychiatrist who had treated Mrs. Roots testified she was psychotic and was suffering from cerebral arteriosclerosis. He stated in his opinion she was not able to handle her affairs and was in need of a guardian. The court made a finding that Mrs. Roots was incompetent. That finding is not brought into question on this appeal and will not be further noticed.

The only question on this appeal is the propriety of the appointment of the public administrator as guardian of the person and estate of Mrs. Roots in preference to the appointment of Nurnberger, her nephew.

In the circuit court hearing, the public administrator testified he was contacted by the probate judge about Mrs. Roots after the St. Joseph Police Department had contacted the judge about a number of disturbance calls related to the Roots’ home. At that time Mr. Roots was alive.

As result of the knowledge acquired from the probate judge, the public administrator filed an application for the involuntary hospitalization of Mrs. Roots. This application was later dismissed, but in the meantime she had been admitted to the state hospital in St. Joseph. Outside of making a visit to the Roots’ home after Mrs. Roots left the state hospital, the public administrator had little, if any, contact with Mrs. Roots and was generally unfamiliar with the nature and extent of her property.

Thomas Nurnberger stated he was a nephew of Mrs. Roots by virtue of his mother and Mrs. Roots being sisters. He stated he lived in St. Louis where he was a school teacher. He held both a bachelors and masters degree in education and was working on his doctorate.

Living with Nurnberger in St. Louis was another sister of Mrs. Roots, Jane Pinder. Nurnberger was single and his Aunt Jane was apparently a single lady who had worked as an R.N. in St. Joseph but had retired. On her retirement she went to live with Nurnberger and 'helped with the household duties there.

When Nurnberger learned Mrs. Roots had been placed in the state hospital, he immediately went to St. Joseph. He talked with her private physician and with the psychiatrist in charge of her case in the state hospital and obtained the approval for her release. Subsequently, Nurnberger took Mrs. Roots to St. Louis to make her home with him and her sister, Jane.

When Nurnberger returned to St. Joseph for the hearing in the circuit court, the psychiatrist again examined Mrs. Roots and testified her psychotic condition had largely disappeared, but her arteriosclerosis continued as a permanent condition.

Nurnberger lives in a four-bedroom, large home, on a half-acre tract in St. Louis. He stated he owned his home and owned and managed a stock and bond portfolio. He had returned to St. Joseph on occasion when he learned of any need on the part of Mrs. Roots or her husband, and had given his name to the police department to be contacted in case there was any need.

Shortly after Nurnberger obtained Mrs. Roots’ release from the state hospital, Mr. Roots died. Apparently Mr. Roots had had a drinking problem, but the only specific complaints about which Nurnberger had been informed related to some disturbance about a shotgun.

Nurnberger stated in his early days he had lived about ten years with Mr. and Mrs. Roots while he attended school in St. Joseph. He was a graduate of a high school in that city and had attended junior college there.

Nurnberger told the court in detail of the property and assets belonging to Mrs. Roots, consisting of a savings account in St. Joseph and a bank and savings account in St. Louis which had been transferred from a St. Joseph bank. In addition, Mrs. Roots owned an apartment house and a home in St. Joseph; some real estate near Sugar Lake and a house in Maryville. Nurnber-ger also stated Mr. Roots had a bank account and savings account at his death and Mrs. Roots was the owner of these because the Roots had no children.

Nurnberger stated Mrs. Roots had lived in his home from May, 1975, until the hearing in circuit court in August. He stated she had about $250 per month income from social security but this went into her bank account. He stated he was furnishing all of her food, lodging and other needs without any payment. He had assisted her in having a new roof put on her home and in the payment of various bills.

Mrs. Roots testified before the circuit court and except for an inability to fully describe all of her assets, displayed an understanding of the questions propounded to her and gave coherent answers. She stated without equivocation she desired Nurnberger to be her guardian.

Jane Pinder also testified and told of the kind and considerate treatment which Nurnberger gave to her and to Mrs. Roots. She stated she was able to get around and was capable of taking care of her sister and since her sister had been in St. Louis her general health had improved and she had gained about 20 pounds from a rundown condition. She said Nurnberger took his aunts out to eat frequently and to visit friends. She stated the situation in the Nurnberger home with her and her sister was highly satisfactory and desirable.

In addition, a niece, another nephew, and another sister of Mrs. Roots testified. They all stated they were familiar with the situation of both Mrs. Roots and Nurnberger and his home in St. Louis. All stated they favored the appointment of Nurnberger as guardian of both the person and estate of Mrs. Roots.

In addition, a wife of one of Nurnberger’s fellow teachers from St. Louis testified concerning her acquaintanceship with the good care and attention which Nurnberger gave his aunts.

The circuit court made informal findings of fact which were later amended on motion of Mrs. Roots and Nurnberger. The court appointed the public administrator because he found (1) Nurnberger demonstrated no ability in the business line; (2) he is a school teacher in St. Louis and in no condition to cheek into affairs here (St. Joseph) and to locate property of his aunt; and (3) he is primarily interested in her money because he took some money out of a bank in St. Joseph and put it in a bank in St. Louis.

Section 475.055, RSMol969, sets out the qualifications of guardians. This Section provides any natural person of full age may be appointed guardian with certain exceptions not applicable here. There is no question but that Nurnberger is fully qualified to be appointed guardian under this Section.

Section 473.743, RSMol969, provides the public administrator shall take into his charge and custody the person and/or estate of all insane persons in his county who have no legal guardian and no one competent to take charge of the estate or to act as guardian who will qualify.

Because Section 475.055 states qualifications only in general terms relating to age and residency, there is no definitive guide in the statutory law of this state concerning precise qualifications of guardians. In this situation a determination of whether or not there is anyone besides the public administrator who is qualified to act as guardian rests in the sound discretion of the court confronted with that question.

In this case a factor to be considered by the court in the exercise of its discretion in the appointment of a guardian is the relationship between Mrs. Roots and Number-ger. Section 475.055 does not give any preference to a blood relative to be appointed a guardian of either the person or estate of an incompetent. However, the Supreme Court has held that in the case of a minor, the common law preference to be given a relative over a stranger, when all other things are equal, would be applied absent any statute abrogating such rule. In re Brinckwirth’s Estate, 268 Mo. 86, 186 S.W. 1048 (1916). In that case the court ordered the public administrator removed as guardian of minor children and held that all other qualifications being equal and no specific reason existing-to the contrary, the nearest relatives of the minors were entitled to preference in the selection of a curator. The court quoted with approval from American and English encyclopedias of the law which stated the common law rule in part with reference to the appointment of guardians: “ ‘Other things being equal, however, a relative will always be preferred to a stranger.’ ” 186 S.W. 1052.

Like Missouri, New York does not have a statutory preference of relatives over strangers. However, the court in In re West, 13 A.D.2d 599, 212 N.Y.S.2d 832, 834[2, 3] (1961) adopted a test to be applied in the contest between a relative and a stranger. The court stated:

While the usual practice is to appoint a next of kin or other close blood relative or the nominee thereof, the court is not bound to do so. There is no positive rule of law compelling the court to appoint a next of kin nor any absolute subordination of strangers to relatives. The paramount consideration is the best interests and welfare of the incompetent so that the court may, in the exercise of discretion approve a stranger as the sole committee, where there is a valid objection to the close relative or nominee. Appointment of a stranger is in the best interests of the incompetent where the record discloses dissension in the family, the adverse interests of the relatives and the incompetent, the lack of business ability of the relative or any other reason whereby a stranger would best serve the interest of the incompetent.

While the court in Brinckwirth applied the preference to relatives in selecting a guardian for a minor, this court perceives no reason why the same rule should not be applied to incompetents. The same reasoning applies. Adding to this is the reasoning of the court in West. This court finds the statement in West to be persuasive and fully consistent with the holding in Brinck-wirth. Therefore, this court adopts the rule quoted above in West that a relative should be appointed over a stranger as a guardian unless the record discloses dissension in the family, the adverse interest of the relatives and the incompetent, the lack of business ability of the relative, or any other reason whereby a stranger would best serve the interest of the incompetent.

The trial court actually applied much the same test as adopted herein, but the findings made by the court do not find support in the evidence. The court found Nurnberger demonstrated no ability in the business line, but the only evidence in the case concerning his business ability was that he managed his own stock and bond portfolio, owned his real estate, assisted Mrs. Roots in her business affairs including the replacement of a roof on her home. There was no evidence whatever to indicate any lack of business ability on the part of Nurnberger. In view of his advanced degrees and demonstrated ability, such finding is unsupported in the evidence.

The next finding of the court that Nurn-berger was a school teacher in St. Louis and in no condition to check into the affairs in St. Joseph and locate Mrs. Roots’ property is likewise unsupported by the evidence. The only evidence bearing on this question indicated Nurnberger was thoroughly familiar with Mrs. Roots’ assets and, in fact, the only evidence concerning her assets came from him and not the public administrator. He further demonstrated his ability to take care of matters in St. Joseph.

The last ground assigned by the court for its appointment of the public administrator was that Nurnberger was primarily interested in Mrs. Roots’ money because he took some money out of a bank in St. Joseph and put it in a bank in St. Louis. On this finding it may be said there was absolutely no evidence that Nurnberger had in any respect misapplied or misappropriated any funds belonging to Mrs. Roots. The uncon-tradicted evidence was that he was supporting her in his own home and was not even taking the social security check which she received each month to apply to her own expenses. The transfer of some money from a bank account in St. Joseph to one in St. Louis was made for the convenience of having the account located close to the physical presence of Mrs. Roots. Although the account opened in St. Louis had Nurn-berger’s name added to Mrs. Roots’ it also had Jane Pinder’s name added. Further, Nurnberger made full disclosure of the assets of the account and the amount contained therein, and, as guardian, would be fully responsible to account therefor.

The findings of the court do not find support in the evidence and under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc. 1976), the judgment resulting therefrom cannot stand.

In accordance with the rule approved in Brinckwirth and West and adopted by this court, Nurnberger is entitled to preference in the appointment of a guardian unless one of the enumerated exceptions exist. The evidence does not show the existence of any of these exceptions and in addition shows Nurnberger to be fully qualified to be appointed.

The judgment appointing the public administrator as the guardian of the person and estate of Harriet Margaret Roots is reversed and the court is directed to enter a judgment appointing Thomas J. Number-ger as the guardian of the person and estate of Harriet Margaret Roots.

All concur.