author: SHANGLER, Presiding Judge.

text:
    KANSAS CITY, Missouri, Respondent, v. Frankie C. FULTON, Appellant.
    No. KCD 27693.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.

      Roy W. Brown, Kansas City, for appellant.
    Aaron A. Wilson, City Atty., Louis W. Benecke, City Prosecutor, Michael L. Gat-rost, Asst. City Prosecutor, Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

This appeal is from a conviction for a weapon concealed on the person in violation of city ordinance. The defendant was found guilty on the de novo review of the circuit court and seeks to have the fine imposed invalidated on the primary ground that the arrest which disclosed the weapon was illegal.

The judgment of conviction rests on the testimony of Patrolman Moore of the Kansas City Police Department given on behalf of the respondent City, the only evidence in the case. In the early morning, about 1:45 A.M., Patrolman Moore responded to a call from one Ella Simpson of 1233 Bales who reported a car prowler. The patrolman learned from her that she had seen the defendant bring his automobile to rest near her residence, discharge a passenger, turn off the lights, and with the engine still running, remain in place while the passenger walked southbound on Bales.

The officer approached the defendant, asked for identification and instructed him to step away from the vehicle. The defendant complied without resistance, exhibited a valid license, and then submitted to a frisk of his person for weapons. Manipulations of the outer garments disclosed the elongated form of a knife in the right front pocket which, upon inquiry, defendant conceded he carried for protection in his work as a bartender. The patrolman extracted a brown-handled, long, thin, knife, ten and three-quarters inches in overall length, and thereupon arrested the defendant for the concealment of a weapon on his person. As the defendant was conducted to the patrol wagon, a woman [presumably the passenger] returned to the car.

The motion of the defendant to suppress the knife as evidence of a concealed weapon on the premise that the discovery of the instrument was incident to an unlawful arrest was overruled by the trial court. On this appeal the defendant contends that § 84.440, RSMo 1969, limits the power of arrest for police officials in Kansas City to cases where there is reason to believe a person has committed, was committing, or is about to commit a violation of the law, and absent such probable cause an arrest may not be maintained.

The respondent City does not pretend that the patrolman acted upon probable cause for arrest at the time the defendant was detained and frisked, but that on the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), Patrolman Moore was justified in the circumstances to stop the defendant and then to frisk him for self-protection. That is to say, although the search was not incident to a lawful arrest, the arrest was incident to a lawful search.

The purpose of the Fourth Amendment is to protect the privacy and security of persons against arbitrary intrusions by government. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). That is to say, the Constitution forbids the seizure of a person by the State unless there is legal cause. An arrest, under warrant [Giordanello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958)] or without warrant [Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959)], is valid only upon probable cause. Consonant with these principles, § 84.710, RSMo 1969, authorizes a Kansas City police officer to arrest without warrant on reasonable grounds of belief that an offense of any grade has been or is being committed. Kansas City v. Mathis, 409 S.W.2d 280, 286[9] (Mo.App.1966).

The further provision of that statute [§ 84.710(2)] that

[The members of the Kansas City police force] shall also have the power to stop any person abroad whenever there is reasonable ground to suspect that he is committing, has committed or is about to commit a crime and demand of him his name, address, business abroad and whither he is going [and] may search him for a dangerous weapon whenever they have reasonable ground to believe they are in danger from the possession of such dangerous weapon by the suspect

is given effect within the constitutional principle of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) which validates detention of the person on less than probable cause for arrest under circumstances where a police officer has reasonable grounds to believe criminal activity may be afoot and the suspect armed. State v. Rankin, 477 S.W.2d 72, 75[1-3] (Mo.1972).

This sanction to stop on reasonable suspicion does not, as a matter of course, justify the further intrusion of a frisk. On the contrary, the authority granted the police under Terry [and the statute] is narrowly drawn. The justification for the initial stop rests on circumstances [Terry v. Ohio, supra, 392 U.S. l.c. 30, 88 S.Ct. l.c. 1884]:

where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries .

The justification for the further intrusion of the person by frisk arises only from circumstances from which the reasonable inference arises that the suspect is armed and poses a danger to the officer and others about him [Terry v. Ohio, supra, l.c. 30, 88 S.Ct. l.c. 1884]:

where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Whether the officer acted reasonably in the circumstances rests not on his general suspicions or surmises but on this objective standard: “would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” Terry v. Ohio, supra, l.c. 21-22, 88 S.Ct. l.c. 1880. These requirements of objective reasonableness and particularity were repeated first in Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917 (1968):

Before he places a hand on the person of a citizen . . . [the officer] must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous

and then again in Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

These authorities establish the constitutional validity of the stop and frisk as a legitimate tool of police inquiry. We need not determine whether the initial encounter between Patrolman Moore and the defendant was on a reasonable suspicion that he was armed and engaged in some criminal enterprise, because a police officer as conservator of the peace and public safety had the inherent authority to stop an automobile for a license check of the operator. State v. Rankin, 477 S.W.2d 72, 75[1-3] (Mo.1972); United States v. Turner, 442 F.2d 1146, 1148[1-3] (8th Cir. 1971). The question remains whether, after Patrolman Moore confirmed the identification of the defendant and the validity of his license, the officer was justified in the frisk which followed on the reasonable belief that the defendant was potentially dangerous and should be disarmed for the protection of the officer.

A police officer may justify a forcible stop and frisk not only on the reasonable inferences drawn in light of his experience from the observed circumstances, but also on information from an informer which bears indicia of reliability. Adams v. Williams, supra, 407 U.S. l.c. 147[6], 92 S.Ct. 1921. The sparse evidence shows that Patrolman Moore came to the scene on the complaint of Ms. Simpson and observed the defendant in his car, parked, headlights off and engine idling. In addition to these observed facts, Ms. Simpson reported that another occupant of the automobile had gone down the street and had not returned. The defendant responded fully to the initial overture of the patrolman, and without evasion, furtiveness or resistance, complied with the legitimate inquiry for identification and display of vehicular license. There was nothing in the manner of the defendant to excite reasonable suspicion of criminal activity, either by him alone or in complicity, or that the defendant was armed and dangerous. The clothes he wore did not betray the ominous form of a weapon beneath or give any other hint of danger. The car he operated was properly parked at the curb and the defendant was seated behind the wheel in a normal manner. The investigation of the officer, such as it was, confirmed that the defendant owned the car. Although-Ms. Simpson told the officer that her suspicion had been aroused because the car passenger had alighted and gone on while the defendant remained behind, Patrolman Moore made no inquiry about his companion, where she had gone, or what they were about so early in the morning.

It is the command of the Fourth Amendment that every restraint of the person be justified; an officer may not invade the privacy of a person on whim. Nor does the right of an officer to the identification and license of a motorist allow him as a matter of routine, and without more, to lay his hand on every person of whom he makes such inquiry. Kansas City v. Butters, 507 S.W.2d 49, 54[7] (Mo.App.1974); Sibron v. New York, supra, 392 U.S. l.c. 64, 88 S.Ct. 1889.

Unlike the stop and frisk in Terry where an experienced officer observed antics consistent with the preparation for a robbery and where the suspect made unclear and evasive responses to the police officer; unlike Adams'where a patrolman in a high crime area on reliable information that a person in a nearby car was bearing narcotics and a pistol and where the suspect failed to comply with the request of the officer to open the door — thus disclosing the pistol to view; and unlike the stop and seizure in Rankin where police in a patrol car observed two men driving away hurriedly from a parking lot when the police appeared and where the officers were keeping a close surveillance because of the incidence of burglaries, thefts and vandalism, and where, when stopped, the police detected the handle of a weapon in open view; the frisk by Patrolman Moore was unjustified and without reasonable basis to believe that the defendant was armed and dangerous.

The weapon seized from the frisk was illegal evidence and should have been suppressed by the trial court.

The judgment is reversed.

      . This rule is rooted in the common law practice whereby beadles and watchmen detained, short of arrest, nightwalkers on a reasonable suspicion less than probable cause. Scurlock, Basic Principles of the Administration of Criminal Justice, 41 UMKC L.Rev. 165, 177 (1972); State v. Grant, 79 Mo. 113, 134 (1883).


source: Caselaw Access Project

author: ANDREW JACKSON HIGGINS, Special Judge.

license: Public Domain

text:
    In re A. A., Jr., a juvenile.
    No. 27710.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.

      James L. McMullin, Hill, McMullin & Wilson, Kansas City, Mo., for appellant.
    Cheryle Micinski, Kansas City, Mo., for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from order and judgment that A. A. Jr., was in need of care and services (treatment) under jurisdiction of the court and which committed him to the custody of the State Division of Family Services for foster home placement. §§ 211.261, 211.-031, 211.181, RSMo 1969, V.A.M.S. The question is whether prior abuse of another child presents a prima facie case of danger to a sibling in the same circumstances to justify intervention by the court for removal of such child from his environment. Affirmed.

On October 25, 1974, a petition “in the Interest of A. A., Jr.,” a male, age one year, in legal custody of his parents, A. A. A. and J. M. A., 488 Highland, Kansas City, Missouri, was filed by the juvenile officer which alleged, as amended December 4, 1974: “The environment of said child is injurious to his welfare in that said child’s natural father has been convicted of homicide of a sibling of this child and is presently out on bond pending an appeal of his conviction. Due to the present status of said child’s father, it is felt that this environment is emotionally unstable and dangerous for this child to reside in.”

The child was taken into custody October 25, 1974, and was detained in custody in foster family care under orders of the court until hearing on the petition December 4, 1974.

Appearances at the hearing were: the child in person with his duly appointed guardian ad litem, an attorney; the parents in person with their attorney; and the juvenile officer by his attorney.

It was stipulated “that A. A., Sr., has been convicted of murder in the second degree of a sibling of * * * A. A., Jr. He is presently on bond pending appeal.” The allegations of the petition were otherwise denied, a motion to dismiss was overruled, and the hearing proceeded for receipt of evidence.

Rosalyn Wilson, a Social Service worker with the Division of Family Services, investigated the A. family. Mr. A. told her that he was separated from his wife at the time the sibling, C. A., was killed; that he had visited A. Jr., when the mother permitted him, and had done so since C.’s death. Mrs. A. also told her of the separation and indicated that she would continue to allow Mr. A. in her home and to see the child in the •future.

Juvenile officer’s Exhibit 1, medical records of C. A. at Kansas City College of Osteopathic Medicine, was identified by William R. Bonner, D. 0., who, with Dennis J. Hey, D. 0., supervised its preparation. C. was seen in the emergency room May 9, 1974, 8:10 p. m., attended by Drs. Bonner and Hey. She was a 2-year-old female in a comatose state, brought to the hospital by ambulance. She had no blood pressure and was without spontaneous respiration or heartbeat. She exhibited bilateral periorbital bruises, bruises bilaterally over the zygo-matic arches and mastoidal area. Her chest wall was bruised bilaterally; her back had abrasions and bruises. She had bruises in the epigastric and suprapubic areas. Her upper and lower extremities showed multiple bruises and abrasions; edema was present in her left hand. Her buttocks were bruised bilaterally; there was a sero-sanguineous discharge in the vaginal vault. Lifesaving measures were attempted, all of which failed, and she was pronounced dead at 8:50 p. m., May 9, 1974. The mother related two stories or versions of what happened. The first was that the child fell off her bicycle and down some steps; the second was that the child and a girl child neighbor were fighting and, after entering the house, fell down and stopped breathing.

In Doctor Bonner’s opinion, C.’s bruises and abrasions “were traumatic in origin but not of an accidental cause * * *. They looked like a beating.”

The juvenile officer rested; and, after a second unavailing motion to dismiss, Mrs. A. testified.

J. A., mother of C. A., deceased, and A. A., Jr., age 13 months, was eighteen years old. She stated that A. A., Sr., was the father of C. and A., Jr., and acknowledged that the father had been convicted of the homicide of C. At the time A., Jr., was taken into custody, her husband had not been living with her and was living with his mother, Jessie Hueigh, at 5012 East 41st Street. She acknowledged that A., Sr., had visited his son since C.’s death, “* ⅜ ⅜ occasionally, and when he did visit, it would be a friend or somebody or my brother would be over at the time he visited him. We have a friend, you know, that comes up, you know, when he comes to see the baby, and my brother comes over sometimes when he comes to see him.” Before C.’s death, A., Sr., “came mostly every day, say two days out of the week, something like that,” without any other person present. Mrs. A. also acknowledged that she told Rosalyn Wilson, the caseworker, that she would let Mr. A. continue to visit in her home.

The court sustained the petition because “the environment of the child is dangerous for the child to reside in. It’s undisputed about the conviction, even though it is on appeal, and ⅜ * * the deceased child also was a young infant who was in the custody of the mother at the time of the killing; and * * * the child A., Jr., is in need of the care and treatment and services of this court.” The court then heard evidence on disposition, which, “in compliance with instructions of appellants’ attorney,” was not transcribed. The order and judgment previously described followed:

“* * ⅜ the Court finds that said A. A., Jr., is a child under the age of 17 years and is in need of the care and services of the court and that the court has jurisdiction over said child under the provisions of Section 211.031, R.S.Mo. (1969) * * * in that the allegations stated in the petition are found to be true, and the Court hereby sustains the petition herein as amended.
“Wherefore it is ordered, adjudged and decreed by the Court that said child, A. A., Jr. be and he is committed to the custody of the State * * * until further order of the Court.”

Appellant J. A., mother of A. A., Jr., contends the evidence was insufficient to show that the environment of the child was injurious to his welfare. She argues that evidence that the father killed his son’s sibling and is free on bond is insufficient to take the child from his mother. In support, she asserts there was no evidence that the child’s environment while living with her “separate from the father” was injurious to the child.

Section 211.031, supra, provides that “the juvenile court shall have exclusive original jurisdiction in proceedings: (1) Involving any child who may be within the county who is alleged to be in need of care and treatment because: * * * (c) The behavior, environment or associations of the child are injurious to his welfare * *

In a proceeding of this nature, the consideration which overrides all others is the welfare of the child; and, in this case, the sole question is whether the environment of the child was injurious to his welfare to justify his removal from the parents’ custody into the protection of the court. In re D_ L_ W_, 530 S.W.2d 388 (Mo.App.1975).

The difficulty in appellant’s contention and argument is that it overlooks the evidence which shows that the father who has been convicted of the homicide of his daughter, C., is permitted by her to visit with the deceased child’s sibling, A., Jr., and that the same situation existed prior to and at the time C. was killed. The nature and extent of the injuries sustained by C. at the hands of her father is evidence which sustains the court’s findings that an environment which continues to admit such a person is dangerous to another child of tender years there residing, is injurious to such child’s welfare, and justifies intervention by the court by assuming jurisdiction of such child. In re D_ L_ W_supra. See also In re M_ P_ S_, 342 S.W.2d 277, 282[5] (Mo.App.1961), recognizing that the laudable purpose of such a proceeding is to safeguard and protect children.

The proposition that prior abuse of another child is a prima facie case of imminent danger to a sibling in the same circumstances to justify intervention by the court for removal of such child from his environment has been recognized and sustained in other jurisdictions. See, e. g., In re State ex rel. Thaxton, 220 So.2d 184 (La.App.1969); In re H., 64 Misc.2d 965, 316 N.Y.S.2d 16 (Family Court 1970); In re G., 74 Misc.2d 606, 344 N.Y.S.2d 422 (Family Court 1973); and cf. In re J., 72 Misc.2d 683, 340 N.Y.S.2d 306 (Family Court 1972). Cases such as this of maltreatment of a prior child present one of the few situations in which a juvenile court, and social agencies at its instance, can be alerted to take before-the-fact protective measures. The importance of court intervention in such cases, even though no damage to the second infant is manifest, lies in the knowledge that neglect or abuse by a parent with a propensity toward it is often triggered by the child’s growth. In re G., supra; and see Helfer and Kempe, “The Battered Child” (University of Chicago, 1968).

Appellant emphasizes her testimony that her husband’s visits were attended by a “friend or somebody or my brother would be over” to show, by way of rebuttal, that she was taking precaution for the safety of her surviving child; but it is particularly appropriate in this proceeding that this court defer to the juvenile court on questions of credibility and to that court’s motivation in what was believed best for the child. State v. Greer, 311 S.W.2d 49 (Mo. App.1958).

In re M_ P_ S_, supra, and State v. Greer, supra, are cited by appellant on her contention that the evidence was insufficient to sustain the allegations of the petition. They are not in point because, as previously demonstrated, the allegations of the petition were sustained by evidence.

Appellant, by citation of Sections 211.411 and 211.451, RSMo 1969, and H. G. R v. Smith, 483 S.W.2d 779 (Mo.App.1972), suggests misconception of this proceeding because those authorities deal with termination of parental rights and are, consequently, not in point. In contrast to the finality of the severance of parental rights in a termination proceeding, permanent custody of A., Jr., has not been barred forever to appellant. He has been placed in foster care under jurisdiction of the court for his protection; and the question of his custody “until further order of the court” is subject to modification. § 211.251, RSMo 1969.

Judgment affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. James Guy PERSINGER, Appellant.
    No. KCD 27812.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.
    Douglas S. Roberts, Gallatin, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Appellant was charged by amended information with first degree burglary by breaking and entering the dwelling house of his mother, Marvel Persinger, which was owned by her, with the intent to assault her. After a jury waived trial, the court found defendant guilty and sentenced him to eight years imprisonment.

Defendant’s first Point Relied On is that “[t]he verdict was against the weight of the evidence in that it was clearly proven that the premises in question were the Appellant’s dwelling house, for the burglary of which he cannot be convicted.” His second is that “[t]he verdict was against the weight of the evidence in that it was clearly proven that Appellant did not enter the premises with the intent to assault his mother with the intent to do great bodily harm.” Not only do both of appellant’s points fail to indicate in what way defendant believes the trial court erred, but also they call on this court to pass upon the weight to be given the evidence. Even if it were to be overlooked that each point fails to indicate in what way the trial court erred, it is not within the scope of appellate review to pass on the weight to be given evidence. State v. Earnest, 162 S.W.2d 338 (Mo.App.1942). Therefore, neither of defendant’s first two Points Relied On preserves anything for review. State v. Amerson, 518 S.W.2d 29 (Mo.1975). The court, however, interprets these points as an attempt to challenge the sufficiency of the evidence, and we will proceed to examine the record in order to determine if it contains sufficient evidence to support the conclusion that the Persinger home was not defendant’s “dwelling house” and that defendant entered the home with the intent to “assault his mother with the intent to do great bodily harm.”

Viewing the evidence in the light most favorable to the State, the record reveals that defendant was something of an itinerant who lived most of the time in an old tool shed. When he was not intoxicated, however, his mother allowed him to sleep on the living room divan in her home which she owned. At best he stayed at his mother’s less than half the time. On Thursday, September 26, 1974, he left his mother’s house, intent not to return. Shortly thereafter he discovered that in order to facilitate this intent, he needed to retrieve some clothing he kept at the house and so on Saturday, September 28, 1974, he went to the house with a friend and asked to be admitted. Because he was intoxicated, his mother refused to permit him entry. This refusal angered defendant, and he threatened to kill the occupants of the house if not admitted. As his anger rose to a fever pitch, he pushed his fist through an outside door and demanded entry. His mother again refused. Seeing he could not gain entry through the porch door, he searched about for “something to kill the son-of-a-bitches with,” and found a flower pot. Using it as a tool, he smashed the window in the living room door. After being warned that he would be shot if he entered, he reached through the broken window, unbolted the door from the inside, and walked into the house. Once inside, he went directly to his mother’s bedroom where she was standing with a loaded .12 gauge shotgun. As he approached, she warned him not to come any closer. He continued his advance and she fired a shot. It missed. He continued toward her. She triggered off a second round, hitting him. Once hit, he fell to the floor. He “got up” immediately, however, and resumed his approach toward her. She fled the room and ran to the kitchen. After the shooting he again threatened, saying, “I’ll come back and get you.”

It is apparent from this view of the record that there was sufficient evidence introduced at trial to support the conclusion that if defendant had any dwelling at all it was the deserted shed, and that at best he was merely a casual houseguest from time to time in his mother’s home. Thus, the evidence was sufficient to allow the trial court to properly conclude that defendant did not even dwell in his mother’s house; and under the most liberal conceivable interpretation, he could not be considered to be the “owner” of those premises for the purpose of the burglary statute, as contended by defendant. Moreover, the State’s evidence is clearly sufficient to support a finding that defendant intended to assault his mother and to do her great bodily harm when he forcibly entered the house.

Defendant’s third Point Relied On is that “[t]he trial court erred in admitting evidence of Appellant’s statement after he had been shot.” This Point Relied On is extremely similar to a point recently held totally inadequate by the St. Louis District of the Court of Appeals in State v. Holland, 525 S.W.2d 576 (Mo.App.1975). In that case, the defendant urged on appeal that “[t]he trial court erred in permitting the State to impeach its own witness.” Noting that under certain circumstances a party, including the State in a criminal case, may impeach its own witness, the court held that the Point Relied On failed to demonstrate wherein and why the court’s action was erroneous, and therefore failed to preserve anything for review. Similarly, in the case at bar, it is obvious that in some circumstances a trial court may admit the evidence of a defendant’s statements made immediately after his being shot. It is apparent then that because defendant’s third Point Relied On fails to state wherein and why admitting evidence of his statement was erroneous, the point fails to preserve anything for appellate review.

Even if the third point had been properly preserved, the statement made after the assault was clearly admissible as part of the res gestae. See Campbell v. Crutcher, 224 S.W. 115 (Mo.App.1920), where in a suit for damages based upon an assault, the Springfield Court of Appeals held that threats and vile language attributed to a defendant immediately after the assault was a spontaneous outburst influenced by the affray in which he had the minute before been engaged, and was therefore clearly part of the res gestae. See also State v. Rodgers, 102 S.W.2d 566 (Mo.1937), a second degree murder case where the court held admissible as part of the res gestae a threat made by the defendant to the victim’s brother one or two minutes after the fatal skirmish. Similarly, the statement made in the case at bar is clearly part of the res gestae of the entire incident.

None of defendant’s three points preserves anything for appellate review; but even upon full consideration, they are without merit. Accordingly, the judgment is affirmed.

All concur.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Norman W. CURRY, Appellant.
    No. KCD 27838.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.
    Simon, Simon & Katz, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PER CURIAM:

Appellant’s single point is, “The court erred in failing to sustain defendant’s challenge for cause of the venireman Hale.” This utterly fails to comply with Rule 84.-04(d) [made applicable to criminal cases by Rule 28.18] in that there is no statement as to wherein and why the ruling of the court is claimed to be erroneous. Counsel should note the relevant remarks of Simeone, J., in L. L. v. V. F. L. and M. D. S., Inc., [Missouri Court of Appeals, St. Louis District, No. 37,061, decided January 20,1976], relating to dismissal for improper briefing.

The appeal is dismissed.


author: TURNAGE, Presiding Judge.

text:
    John F. RUDLOFF, Respondent, v. Linda Jean RUDLOFF, Appellant.
    No. KCD 27920.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.
    James P. Williams, Brookfield, for appellant.
    Richard N. Brown, Brown & Casey, Brookfield, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

In this dissolution of marriage case, the respondent in such action, Linda Jean Rud-loff, (wife) appeals from the judgment awarding custody of two girls to the petitioner, John F. Rudloff, (husband).

The husband testified the wife left the home and the two children born of the marriage, in Browning, Missouri, with another man. The girls were ages 6 and 11. The husband remained in the family home and, with the aid of a baby sitter, continued to care for the girls until the dissolution hearing. The husband worked about a half block from the home and went to work after getting the girls off to school. He was home from work by 5:30 in the afternoon.

The wife did not deny the testimony of the husband that she had left with another man. She stated she had moved to Marcel-line from Browning and was living in a three-bedroom trailer home.

On this appeal the wife relies solely on the statement found in cases such as Zimmerman v. Zimmerman, 446 S.W.2d 503 (Mo.App.1969), “that very young children and particularly girls should be in the custody of their mother unless she is demonstrably unfit to assume their proper care.” 446 S.W.2d 505[2].

The wife relies upon this statement without demonstrating from the evidence in what manner the welfare of the children would be best served by placing them in her custody. On the contrary the trial court found the best interest of the children would be served by placing them in the custody of the father.

The statement upon which the wife relies as quoted from Zimmerman is by no means conclusive as held by this court in Suddarth v. Suddarth, 515 S.W.2d 817 (Mo.App.1974) and Leaton v. Leaton, 435 S.W.2d 408 (Mo.App.1968). Rather, as pointed out in Suddarth, the pivotal point is the welfare of the children. That is the central issue to be determined. In this case the court found this welfare best served by placing the children with the father.

It is firmly established that “the trial court’s findings on the matter of custody are not to be lightly cast aside and we will defer to those findings unless we are firmly convinced that the welfare of these children requires some other disposition.” Johnson v. Johnson, 526 S.W.2d 33, 36[6] (Mo.App.1975). Also, as held in Suddarth, unless it can be said the trial court abused its discretion in the order of custody which it made, then the appellate court will defer to the finding of the trial court on that issue.

After a careful review of the record in this case, this court is unable to say the trial court abused its discretion. This court agrees with the finding of the trial court that the best interest of the children require their custody to be given to the father.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Gregory THOMPSON, Appellant.
    No. KCD 27910.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.
    Thomas M. Larson, Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

This appeal follows defendant’s conviction of robbery first degree under Section 560.120, RSMo 1969, and his sentence to twelve years imprisonment by the jury.

Defendant does not question the sufficiency of the evidence to convict him but raises a single point concerning the failure to strike a reference to defendant having been seen in Juvenile Court. The conviction is affirmed.

The manager of Jean’s Plus testified concerning the robbery and his identification of the defendant as being one of those involved. On cross-examination the manager was asked if he had seen the defendant prior to the day of the robbery. The manager stated “yes”, and in response to the question “When?” stated: “Both in the store and in Court, on a juvenile, in Juvenile Court.”

Another question and answer followed before defendant’s counsel, out of the hearing of the jury, requested the court to instruct the jury to disregard the remark in regard to the Juvenile Court on the ground it was a comment upon the defendant’s juvenile record. The court observed that nothing had been said about the purpose of the defendant having been in Juvenile Court when he was seen.

On this appeal defendant argues solely the statement should have been stricken because it violated Section 211.271, RSMo 1969. That Section states that admissions and statements made by a child to the juvenile officer and all evidence given under the Juvenile Code as well as all reports and records of the Juvenile Court are not proper evidence against the child and shall not be used for any purpose in any proceeding other than one under the Juvenile Code.

Defendant urges that this statement left the jury with the impression the defendant had been in Juvenile Court on a juvenile charge. However, a fair reading of the answer given by the manager, as set out above, reveals the accuracy of the trial court’s observation. No mention was made as to why the defendant had been in Juvenile Court nor was there any mention made that defendant had committed any offense which required his appearance in Juvenile Court. For all that appears from the answer, the defendant could have been in Juvenile Court as a witness, or for some other purpose unconnected with the commission of any offense.

It is beyond question the statement made does not in any way violate the Juvenile Code since no admission or statement made by the defendant, nor any reports or records from Juvenile Court were quoted or referred to.

As stated in State v. Ford, 487 S.W.2d 1, 4[2] (Mo.1972), “nothing that was done in the juvenile court was used against the defendant in the trial of this cause.”

There was no violation of the Juvenile Code involved here. Furthermore, as observed in Ford, the evidence of defendant’s guilt was overwhelming. The answer was not prejudicial to the defendant. Nor is there any allegation the answer was made in bad faith or as an attempt to get any improper information before the jury.

The judgment is affirmed.

All concur.


author: FLANIGAN, Judge.

text:
    CITY OF SPRINGFIELD, Missouri, Appellant, v. Jack COMSTOCK, Respondent.
    No. 9875.
    Missouri Court of Appeals, Springfield District.
    Feb. 9, 1976.

      Howard C. Wright, Jr., City Atty., Larry A. Woodward, Asst. City Atty., Springfield, for appellant.
    No appearance for respondent.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   FLANIGAN, Judge.

Respondent Jack Comstock, charged with a violation of a city ordinance, was convicted in municipal court. Comstock appealed to the circuit court where, after trial, he was acquitted. The city appeals.

The appeal does not lie. Kansas City v. Bott, 509 S.W.2d 42 (Mo. banc 1974).

The appeal is dismissed.

All concur.


author: STEWART, Judge.

text:
    Josephine Dolores ANTHONIS, Plaintiff-Appellant, v John J. QUINN, Excise Commissioner of the City of St. Louis, State of Missouri, Defendant-Respondent.
    No. 36263.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Feb. 10, 1976.

      David O. Danis, St. Louis, for plaintiff-appellant.
    Jack L. Koehr, City Counselor, John J. Morton, Asst. City Counselor, St. Louis, for defendant-respondent.
   STEWART, Judge.

This is an appeal by plaintiff, owner and operator of a tavern in the City of St. Louis, from a judgment of the Circuit Court on petition for review affirming an order of defendant, the Excise Commissioner of the City of St. Louis, suspending the license of plaintiff for a period of 10 days. Hereafter we shall refer to plaintiff as licensee and defendant as Commissioner.

Licensee was duly served with a citation by Commissioner, ordering her to show cause why her liquor license should not be revoked or suspended for violation of the Revised Code of the City of St. Louis. Section references herein are to the Revised Code of St. Louis unless otherwise indicated.

A hearing was held but no stenographic recording of the testimony of the parties was made. Licensee advised that she did not desire to obtain a record of the proceedings at her own expense. Licensee, however, did prepare a statement of the testimony in which the conduct of the manager of licensee’s business was greatly abbreviated. Commissioner made some minor corrections and made a notation to the effect that the manager had admitted he made the statement to Detective Schaefer which was part of the Commissioner’s findings, and then certified the summary as part of the record. Licensee takes no exception to the corrections which were made. The statement as corrected became a part of the record as an alternative to a full transcript. § 536.130 R.S.Mo.1969.

After the hearing the Commissioner made findings and conclusions adverse to licensee and ordered that her license be suspended for a period of 10 days.

Upon the evidence adduced Commissioner found that on November 25,1973, Detective Schaefer, assigned to the liquor squad, drove by licensee’s premises at about 2:03 a. m., and saw a man standing by the window bent over a coin operated game as if he were playing the game. This man was also drinking from a Budweiser cup. The officer went to the door which was locked. He knocked and was admitted by licensee’s son, the manager of the tavern. There were five other persons in the tavern, the bartender and Michael, Patrick, Susan and Mary Young. The latter named four persons were not employees of the licensee.

The defendant, Commissioner, also found that the manager upon being advised that he was being placed under arrest became— to put it delicately — extremely abusive toward Detective Schaefer.

Upon these findings the Commissioner concluded that licensee was in violation of Sections 372.100 and 372.170.

Section 372.100 provides sanctions for failure to keep “an orderly place or house at all times.” Section 372.170, so far as material, provides that “all premises at all times while persons other than the licensee or employees of the licensee are on . [licensed premises], shall be accessible to law enforcement and liquor inspection persons and such premises shall not be locked nor shall the entrance to such premises be blocked or impeded or made inaccessible in any manner; . . . ”

Licensee’s first contention tacitly recognizes the fact that she had not raised the question of the validity of § 372.170 at the earliest opportunity and thus it is not here for our review. Frank v. Wabash Railroad Co., 295 S.W.2d 16 (Mo.1956). Her contention is that the order of the Commissioner “was based upon the application of . § 372.170, which as applied to the facts of this case is inconsistent with Mo.Rev.Stat. § 311.290 and is therefore invalid under the requirements of Mo.Rev.Stat. Chapter 311.-220.”

§ 372.170 clearly required that the doors to the licensed premises be unlocked when persons other than the licensee and her employees were on the premises. Four of the persons inside the tavern were not employees under any definition of that word. The Commissioner applied the ordinance to the facts in the only manner possible in this case. The contention of licensee can only be read as an attack upon the validity of § 372.170. This issue was not raised at the first opportune moment and is not before us for review. Frank v. Wabash RR., supra.

Licensee next contends that the findings do not support the conclusion that licensee failed to operate an “orderly place or house” in violation of § 372.100. The question under review involves the application of the law to the facts found to determine whether the facts as found constitute a violation of § 372.100. Stephen & Stephen Properties, Inc., v. State Tax Commission, 499 S.W.2d 798, 802[1] (Mo.1973).

As an aid to interpretation licensee points out that § 372.100 is almost identical with § 311.680 R.S.Mo. (1969) which also requires a licensee “ . . .at all times to keep an orderly place or house.”

Failure to keep an “orderly place” or “orderly house” has been variously defined. A large number of these definitions have been collected in State ex rel. Arnold v. Lichta, 130 Mo.App. 284, 109 S.W. 825 (1908); State ex rel. Smith v. Dykeman, 153 Mo.App. 416, 134 S.W. 120 (1911); and State ex rel. Carman v. Ross, 177 Mo.App. 223, 162 S.W. 702 (1914). The common thread to all of these cases is the concept that a single occurrence is not sufficient. It is essential that there be a course of conduct, for a short time at least, and “that the continued acts must either create some disturbance or must tend to promote disturbances or breaches of the peace, or violations of the law, or must promote immorality.” Dykeman, supra, l. c. 122. The act of violating § 372.170 by failing to make the premises available to the officers even coupled with the reprehensible conduct of licensee’s manager on this one occasion can not be said to constitute a course of conduct such as is contemplated by § 372.100. We find that there was no violation of § 372.100 under the facts of this case.

The question of the penalty to be imposed is one within the sound discretion of the Commissioner after a consideration of the violation and the circumstances surrounding the violation. Here the Commissioner found 2 violations of Chapter 372 of the Revised Code of the City of St. Louis, one of which is not supported by the findings. The penalty he assessed was within the range allowed in § 372.020. Whether he would have ordered the same penalty for the sole violation of § 372.170, considered along with the surrounding circumstances, we cannot say. We must therefore reverse and remand the cause for reconsideration of the penalty. See Johnson v. Wright, 478 S.W.2d 277 (Mo.1972) and Chilton v. Wright, 480 S.W.2d 1 (Mo.1972).

While there is some question as to whether licensee’s point III is properly raised, the brevity of the transcript enables us to ascertain the issue sought to be discussed. Licensee contends that the trial court erroneously excluded the testimony of her lawyer to the effect that the Commissioner had “indicated” to him that on the first offense the license would be suspended for a period of 3 days, and as a result she and her lawyer decided not to have a stenographer present to record the testimony at the Commissioner’s hearing. She contends that the evidence was admissible at the hearing on the petition for review under the provisions of § 536.140(4) R.S.Mo. 1969, which provides, “The court may in any case hear and consider evidence of alleged irregularities in procedure or of unfairness by the agency, not shown on the record.”

Licensee may not complain primarily because the Commissioner accepted the statement of the evidence which was provided by licensee with the corrections noted earlier in this opinion. This is one of the alternative methods for providing the record on appeal and occupies the same status as a verbatim transcript. She had the benefit of the record of the evidence on appeal without the cost of a full stenographic transcript. She suffered no prejudicial injury.

The trial court did permit licensee’s attorney to testify subject to the court’s ruling. The evidence was formally excluded. The proposed testimony is set out in the transcript and is before us for our consideration.

Licensee does not set out the alleged conversation verbatim. Her lawyer testified that the Commissioner “indicated” that on the first violation of the ordinance the license would be suspended for 3 days. To “indicate” does not imply certainty but probability. Upon a hearing it is the duty of the hearing officer to impose sanctions in an informed, sound discretion based upon the evidence produced at the hearing. He must take into consideration the violations involved and the circumstances surrounding the violations. Compare Woosley v. United States, 478 F.2d 139 (8th Cir. 1973). The Commissioner could not abdicate that duty nor could licensee rely upon the “indication” allegedly made by the Commissioner.

Assuming arguendo that the evidence was admissible, it is axiomatic that any error must be prejudicial to warrant remedial action. Licensee’s only reason for complaint in this regard is her broad assertion that “If Petitioner had a stenographer additional points on appeal could be raised, which individually or together would be additional reasons for the judgment of Respondent to be reversed.” Licensee does not tell us what points, if any, she was prevented from presenting here. The only question raised with respect to the violation of § 372.170 had not been preserved for our review, but not for the reason that there was no stenographic record. The finding with respect to § 372.100 has been ruled favorably to licensee. Any question with respect to the sanctions placed upon licensee are to be reconsidered. We do not find that the action of the trial court was preju-dicially erroneous.

For the reasons set out herein this cause is remanded to the trial court for remand to the Excise Commissioner of the City of St. Louis for the sole purpose of reconsidering and re-assessing the penalty. In all other respects the judgment of the trial court is affirmed.

CLEMENS, P. J., and KELLY, J., concur.

      . “372.100. Disorderly place. — Whenever it shall be shown, or wherever the Excise Commissioner has knowledge, that a person licensed under the provisions of Chapters 370 through 378 has not at all times kept an orderly place or house, the Excise Commissioner shall revoke or, in his discretion, cancel or suspend the license of such person, as herein provided. (Ord. 51376, June 22, 1962).”

      . “372.020. Revocation, cancellation or suspension of licenses, general. — Any person holding any license issued pursuant to the provisions of Chapters 370 through 378 and who violates any of the terms of said Chapters, or any rule, regulation, order or direction of the Excise Commissioner shall, in addition to the other penalties provided for, suffer- the revocation of his license by the Excise Commissioner; or, the Excise Commissioner may in his discretion warn a licensee, or may suspend his license for not more than ten days, or may cancel his license. Provided that a licensee who suffers the cancellation of his license by the Excise Commissioner may have his license reinstated if he files a complete new petition for a license with the Excise Commissioner, and if the Excise Commissioner, in his discretion, approves such complete new peti-tipn. (Ord. 51376, June 22, 1962).”

      . “Indicate: to point out or to or toward with more or less exactness: as (a) to show the probable . . . course of; reveal in a fairly clear way; (b) . . . to show or suggest the probable extent of.” Webster’s Third New International Dictionary, G. & C. Merriam Co., Springfield, Mass. 1969.


author: GUNN, Justice.

text:
    BADER AUTOMOTIVE & INDUSTRIAL SUPPLY CO., INC., Plaintiff-Respondent, v. Glynn J. GREEN (now known as Glynn J. Wisniewski), Defendant-Appellant.
    No. 36294.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 10, 1976.

      Richard P. Nangle, St. Louis, for defendant-appellant.
    Sullivan & Watkins, A. Michael Sullivan, David J. Rauscher, Clayton, for plaintiff-respondent.
   GUNN, Justice.

Defendant Glynn J. Green appeals from a judgment of the trial court enforcing a restrictive agreement and enjoining defendant Green from directly or indirectly competing with plaintiff Bader Automotive & Supply Co., Inc. in plaintiff’s business. On appeal, defendant Green contends that the restrictive agreement was impermissibly altered by plaintiff and is therefore unenforceable. We find sufficient basis for the trial court’s judgment and affirm.

In September, 1970, defendant Green began working as the only salesman for Richard J. Bader, who operated a sole proprietorship in the sale and distribution of auto body supplies to auto body shops in the St. Louis metropolitan area, including portions of adjoining Illinois counties. On April 1, 1971, Mr. Green and Mr. Bader executed the following agreement which has caused the controversy giving rise to this litigation:

“AGREEMENT
“TO: [Bader Automotive & Industrial Supply Co., Inc.]
‘In consideration of my employment by Bader Supply Company, a Missouri corporation, I hereby promise and agree that I will not, while in the service of Bader Supply Company, or at anytime thereafter, disclose to any person the business methods, names or addresses of the clients, or the trade secrets of Bader Supply Company: and, further, while in the service of Bader Supply Company and for a period of three (3) years after leaving their service of Bader Supply Company will not, under any circumstances or conditions whatsoever, engage in, or become interested, directly or indirectly, as an individual, partner, stockholder, director, officer, agent, employee, trustee, or in any other relation or capacity whatsoever, in or to, the business of [distribution of auto body supplies], within any state in which Bader Supply Company is now engaged in business at the time of the termination of my employment.
‘Further, as a part of the consideration of this Agreement, I agree that I will not, at any time, while in the employ of- Bader Supply Company, or within three (3) years after leaving its services from whatsoever caused, for myself or for any other person or company in anyway directly or indirectly divert, take away, or attempt to divert or take away or solicit any of the clients of Bader Supply Company.
‘It is further expressly agreed that if I, while this Agreement remains in effect, shall violate any of its terms by entering into the employ or service, or otherwise act in aid of the business of any rival company or concern engaged in the same or similar general line of business, or solicit any of the clients of [Bader Supply Co], said [Bader Automotive & Ind. Sup. Co Inc.] shall be entitled to an injunction to be issued by any competent Court of equity, in enjoining and restraining me from the continuation of such employment, service, solicitation or any act in aid of the business of any rival company or concern.’
Dated: 4/1/71
Glvnn J. Green
Employee
Richard J. Bader
Employer”
The bracketed portions of the agreement— “Bader Automotive & Industrial Supply Co., Inc.,” “distribution of auto body supplies,” “Bader Automotive & Ind. Sup. Co Inc.,” and, in one instance, “Bader Supply Co” — denote blank spaces in the typewritten agreement which were handwritten by Richard Bader. The underlined portions of the agreement were typed in at Mr. Bader’s direction.

The controversy centers on whether the blanks were filled in before or after the agreement was signed by both parties on April 1, 1971, and without the authority of defendant Green. Mr. Bader asserts that the name of his corporation, Bader Automotive & Industrial Supply Co., Inc., and the fact that it was in the business of distribution of auto body supplies, was inserted in the agreement prior to its being signed by defendant Green and Mr. Bader. In other words, Mr. Bader maintains that the agreement was complete and without blank spaces at the time it was signed by both parties on April 1, 1971. Mr. Bader also testified that at the time the agreement was signed on April 1, 1971 he was in the process of having his business incorporated but that due to the possibility that the corporate name desired might not be available for use, he was not certain of the exact corporate name for his company. Hence, the reason for the use of the two corporate names in the agreement — Bader Automotive & Industrial Supply Co., Inc. and Bader Supply Company — was that he was uncertain what the corporate name would be and that as an individual he had done business as Bader Supply Company. Mr. Bader also testified that this matter had been discussed with defendant Green prior to and at the signing of the agreement; that the restriction against Mr. Green’s participation in the business of “distribution of auto body supplies” was also a part of the written agreement executed by both parties on April 1, 1971. Mr. Bader acknowledged that the certificate of incorporation for plaintiff Bader Automotive & Supply Co., Inc. was not issued by the Missouri Secretary of State until May 26, 1971.

Defendant Green acknowledged signing the agreement on April 1, 1971 and also acknowledged that “Bader Supply Company” was typed in the agreement, as indicated, at the time he signed it. However, he categorically denied that “Bader Automotive & Industrial Supply Co., Inc.” or the restriction on his business activity to “distribution of auto body supplies” had been filled in at the time he signed the agreement; that when he executed the agreement, the spaces for those two items were blank and had been filled in without his permission subsequent to the signing of the agreement. Defendant Green had no copy of the agreement to support his testimony. Defendant Green acknowledged that his business with Mr. Bader before and after the execution of the agreement had been as an employee in the sale of auto body supplies; that subsequent to the incorporation of the business he had received his income on checks issued by the plaintiff corporation. Defendant Green further acknowledged that he left the plaintiff corporation’s employment on September 15, 1973 and thereafter carried on and sold auto body supplies to customers to which he had formerly made sales on behalf of the plaintiff corporation.

The trial court found the issues in favor of the plaintiff corporation and issued a decree restraining and enjoining defendant Green for a period to September 14, 1976 from directly or indirectly competing with plaintiff corporation in an area defined as the metropolitan St. Louis area, including portions of Illinois.

On appeal, defendant Green does not challenge the trial court’s finding that he has been engaged in competition with the plaintiff corporation in violation of the terms of the restrictive agreement. Rather, defendant Green argues that the agreement was materially altered without his knowledge, authorization or consent. Defendant also raises a second point, which seems to meld into the first, that the trial court erred in finding that the plaintiff corporation had adopted or ratified the agreement, since the agreement had been materially altered without defendant Green’s authority or consent. The primary thrust of defendant Green’s challenge to the trial court’s ruling is thus aimed at the question of whether the trial court could properly find that the restrictive agreement was complete when executed by Mr. Bader and Mr. Green. Mr. Bader says it was; Mr. Green says it was not. We are thus confronted with the testimony of plaintiff and defendant being diametrically opposed on the key point.

In our review of this court tried case, we are governed by Rule 73.01.3, V.A. M.R., which tells us that we are to review the case on the law and the evidence, giving due regard to the opportunity of the trial court to have judged the credibility of the witnesses. Brunswick Corp. v. Briscoe, 523 S.W.2d 115 (Mo.App.1975). We are mindful of the deletion in the current Rule 73 of the phrase “the judgment shall not be set aside unless clearly erroneous” which was expressed previously in Rule 73.01(d). But as stated in Morris v. Holland, 529 S.W.2d 948 (Mo.App.1975), the amendment to the Rule 73.01 effective January 1, 1975, has not converted the appellate courts into “judicial second guessers.” We believe, as stated in Morris v. Holland, supra, at 952: “that when the decision depends upon the credibility of the witnesses and the weight of the evidence, an appellate court should generally defer to the findings of the trial courts unless it is satisfied they should have been otherwise.” With the foregoing postulation to guide us, we find nothing in our review of this record which impels us to reach a different conclusion from the trial court as to whether the blanks relating to the name of the plaintiff corporation and its business of distribution of auto body supplies were already filled in when the restrictive agreement was executed on April 1, 1971 by Mr. Bader and defendant Green. We defer to the trial court’s finding in that regard and accept the finding that the agreement was complete at the time of its execution by both parties. We therefore rule against defendant Green that there was an unauthorized alteration of the agreement.

Having found thus, we forebear an incursion into the law and consequences of executing an agreement containing blank spaces and whether Mr. Bader had implied authority to fill in such spaces to complete the agreement in accordance with the intent of the parties.

We have disposed of the basic issue in this case as to whether the trial court erred in finding that the blank spaces had been filled in at the time the agreement was executed; there was no error. But defendant in his brief seems to allude to the issue of whether the agreement of April 1, 1971 signed by Mr. Bader could be ratified by the plaintiff corporation — Bader Automotive & Industrial Supply Co., Inc. which came into existence on May 26, 1971. After the execution of the agreement on April 1,1971, defendant Green continued to work for the plaintiff corporation until September 15, 1973 and acknowledged its corporate existence. He knew that he was paid by the plaintiff corporation, and he received benefits from it, was familiar with its name and scope of business. As said in Schneider v. Best Truck Lines, Inc., 472 S.W.2d 655, 659 (Mo.App.1971):

“It is a well settled principle that ‘[w]here one contracts with a body assuming to act as a corporation or by a name distinctly implying a corporate existence, both parties in a suit upon the contract are usually estopped from denying such corporate existence.’ [cites omitted].”

See also Pacific Intermountain Express Co. v. Best Truck Lines, Inc., 518 S.W.2d 469 (Mo.App.1974). Further, even though the agreement was executed by the parties pri- or to plaintiff’s formal corporate birth, it became the agreement of the plaintiff corporation after its formation and upon its adoption by the corporation. The fact that the agreement was signed by Mr. Bader, who at the time was the promoter and organizer of the plaintiff corporation and was subsequently its president, sole director and shareholder, was sufficient to bind the plaintiff corporation to the agreement and serve as ratification of the agreement made prior to the corporate existence, thus dispelling any argument of defendant Green that the plaintiff corporation had not ratified the agreement. Schmidt v. Morival Farms, Inc., 240 S.W.2d 952 (Mo.1951).

The judgment is affirmed.

SIMEONE, P. J., and KELLY, J., concur.

      . For reasons best known to him — the record discloses none — Glynn J. Green changed his name to Glynn J. Wisniewski.

      . Inasmuch as defendant Green does not challenge the terms of the restrictive agreement as being overbroad or vague — particularly as to territory — so as to render the agreement unreasonable, void and against public policy, we need not delve into that issue. See: National Motor Club of Mo., Inc. v. Noe, 475 S.W.2d 16 (Mo.1972); Prentice v. Williams, 324 S.W.2d 466 (Mo.App.1959).


text:
    STATE of Missouri ex rel. Robert G. STEWART, acting Supervisor of Liquor Control, Relator, v. The Honorable Daniel TILLMAN, Judge, Circuit Court of the City of St. Louis, Respondent.
    No. 37564.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Feb. 10, 1976.

      John C. Danforth, Atty. Gen., Scott A. Raisher, Daniel P. Card, II, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, for relator.
    Bussey, Collier & Dorsey, St. Louis, for respondent.
   PER CURIAM:

Original action in prohibition. After an evidentiary hearing, the relator, Missouri Supervisor of Liquor Control, suspended licensee’s liquor licenses for 45 days. Licensee appealed to the respondent, who issued a restraining order staying the enforcement of the relator’s order. Relator brought this proceeding to prohibit the respondent judge from staying the suspension order. We make our provisional rule in prohibition absolute.

The pertinent facts: Lamandres Taylor, doing business as Tony’s Shady Grove, held retail-by-the-drink and restaurant-bar liquor licenses. Pursuant to Sections 311.680 and 311.690, RSMo 1969, relator subsequently instituted proceedings to revoke the said licenses for alleged violations of Section 311.280, RSMo 1969. On August 11, 1975, the licensee was served written notice of the charges and of the hearing to be held before the supervisor on August 26, 1975. At the commencement of the hearing, the licensee requested a continuance on the ground that he was without counsel but the request was denied. The relator did grant the licensee ten days “to come forward with counsel and/or additional evidence,” but the licensee did nothing.

Based on the testimony and evidence adduced at the hearing, the relator issued his order, dated October 10, 1975, suspending the liquor licenses issued to Lamandres Taylor for a period of 45 days, effective November 3, 1975. No application for review of this decision was filed with the relator within the fifteen days’ time required by Section 311.700(2), RSMo 1969. On October 31,1975 the licensee appealed to the Circuit Court of the City of St. Louis for review of the relator’s order, and requested a restraining order staying the suspension of the liquor licenses pending a final decision by the court. On November 3,1975 respondent issued ex parte a temporary restraining order staying the suspension of the license and enjoining relator from enforcing his suspension order. Relator, by his counsel, appeared before respondent on November 4, 1975 and moved to vacate the restraining order on the grounds that the court lacked jurisdiction over the subject matter and was without jurisdiction to issue an order staying the enforcement of the relator’s suspension order. The respondent denied the relator’s motion and this proceeding in prohibition followed.

The issues presented are (1) whether the Circuit Court had jurisdiction to enter a temporary restraining order staying the enforcement of the supervisor’s order, and (2) whether the Circuit Court had jurisdiction to review the supervisor’s order in absence of an application for review in compliance with Section 311.700, RSMo 1969.

The first issue was resolved in State ex rel. Wiggins v. Hall, 452 S.W.2d 106 (Mo.1970), an original action in prohibition, wherein the Supreme Court ruled that in the absence of statutory authority the Circuit Court has no jurisdiction to issue a restraining order against the Supervisor of Liquor Control. Applying that ruling, we find respondent was without jurisdiction to enter an order staying the enforcement of relator’s suspension order.

In dealing with the second issue, it must first be recognized that Lamandres Taylor, d/b/a Tony’s Shady Grove, was granted liquor licenses under the provisions of the Liquor Control Law, Chapter 311, RSMo, V.A.M.S. The licensee “had no legal rights (including the right of appeal) except those granted him by the license issued to him and by the Liquor Control Law under which it issued.” Brogoto v. Wiggins, 458 S.W.2d 317 (Mo.1970). Under these statutes the Supervisor of Liquor Control has the exclusive authority to determine the issuance of licenses for the retail sale of intoxicating liquor. Judicial review of the supervisor’s decisions is provided by Section 311.700, adopted by the General Assembly in 1945. It provides, in pertinent portion, that:

“2. Any party to the proceedings who is aggrieved by any final decision, finding, rule or order of the supervisor may file with the supervisor of liquor control his application for a review within fifteen days after notice of such decision shall have been mailed to said party. Within ten days after receipt of such application for review, the supervisor shall transmit to the circuit court ... a certified copy of the entire record of the proceedings under review . . . The reviewing court may affirm the decision of the supervisor or may reverse or modify it

“That method of review is the sole and only remedy available to the licensee for review of the supervisor’s order revoking his license. It is exclusive, mandatory, and jurisdictional.” Brogoto, supra, at 318; Kehr v. Garrett, 512 S.W.2d 186 (Mo.App.1974).

In the instant case, the licensee failed to apply for judicial review of the supervisor’s order in the manner and time prescribed by Section 311.700(2). Noncompliance with the procedure required in this lucid and concise statute fails to vest the Circuit Court with the requisite jurisdiction over the subject matter.

For the reasons stated, we hold the Circuit Court acquired no jurisdiction to stay enforcement of the supervisor’s suspension order or to review the order. Our provisional rule in prohibition is made absolute.

The conclusion reached makes it unnecessary to discuss other points raised by the licensee.

All the judges concur.


author: SIMEONE, Presiding Judge.

text:
    Gus A. PEPPES, Plaintiff-Appellant, v. Robert E. HUDDLESTON, Defendant-Respondent.
    No. 36800.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 10, 1976.

      James S. Collins, II, Manchester, for plaintiff-appellant.
    Peter Ferrara and Wilburn A. Duncan, Martin Schiff, Jr., Clayton, for defendant-respondent.
   SIMEONE, Presiding Judge.

In this personal injury action, plaintiff-appellant, Gus A. Peppes, appeals from a judgment entered by the circuit court of St. Louis County upon a jury verdict in favor of the defendant-respondent, Robert E. Huddleston. Plaintiff sought damages against defendant-Huddleston for injuries sustained when they were moving a 100-150 pound safe down the basement steps of the Huddleston home. The injury occurred when the safe which was transported on a “dolly” or “hand truck” tipped forward and fell onto Mr. Peppes’ left leg and ankle, causing injuries. Immediately before the moving of the safe, the two men moved a file cabinet. Mr. Peppes held the handle of the dolly, and Mr. Huddleston faced the file and hand truck. In descending the steps with the file cabinet, there was “no problem.” Then the two attempted to move the safe. This time their positions were reversed. Mr. Huddleston controlled the handle of the dolly and Mr. Peppes was facing the safe and dolly as he started to descend the steps backwards. After proceeding down a a few steps, the safe tipped forward and to the right, pinning Mr. Peppes’ leg and ankle, from which he suffered injuries.

On this appeal appellant (1) contends that the court erred in giving the contributory negligence instruction, because there was not sufficient evidence to support the charge that plaintiff “failed to hold the safe on the hand truck so as to keep it from tipping forward,” and (2) complains of certain alleged misconduct of defendant’s counsel during the reading of parts of a deposition during his cross-examination the plaintiff-Peppes. of

After examining the transcript, the briefs and the authorities relied upon, we find from the evidence and all reasonable inferences to be drawn therefrom in support of the jury verdict that there was no error in giving the contributory negligence instruction. In determining whether evidence is sufficient to support the giving of a contributory negligence instruction, we consider the evidence in the light most favorable to the defendant, and we give him the benefit of all favorable inferences therefrom. We also disregard plaintiff’s evidence unless it tends to support the grounds of contributory negligence submitted in the instruction. Jackson v. Skelly Oil Company, 413 S.W.2d 239, 242 (Mo. banc 1967); Underwood v. Crosby, 447 S.W.2d 566, 570 (Mo. banc 1969). We hold that the reasonable inferences drawn from the evidence favorable to the defendant support the submission in Instruction No. 4 that the plaintiff “failed to hold the safe on the hand truck so as to keep it from tipping forward.”

The appellant’s second point does not indicate what actions or rulings of the trial court are sought to be reviewed and wherein and why they are claimed to be erroneous. Rule 84.04(d). But we surmise from appellant’s motion for new trial that he seeks a new trial because of the alleged misconduct of defense counsel. The alleged misconduct consisted of defense counsel, while attempting to cross-examine plaintiff by use of a deposition, stating, “You don’t want them [the jury] to know what it is.” This occurred after a confusing discussion as to which page and line defense counsel would read from the deposition of the plaintiff. Plaintiff’s counsel made a record—he objected and requested the court to request defense counsel to refrain from making any “personal comments.” The trial court sustained his objection and granted plaintiff’s counsel all the relief requested. The trial court was in the best position to determine the effect of such conduct and took appropriate action. We find no abuse of discretion. Citizens Discount and Investment Corp. v. Dixon, 499 S.W.2d 231, 235 (Mo.App.1973).

The judgment is affirmed. Rule 84.16(b).

KELLY and GUNN, JJ., concur.

      . Instruction No. 4 told the jury that its verdict must be for the defendant, whether or not the defendant was negligent, if you believe
      “ ‘First, plaintiff either: failed to secure the safe’ with ‘the hand truck before attempting to descend the stairway, or failed to hold the safe on the hand truck so as to keep it from tipping forward
      Appellant has failed to comply with Rule 84.04(e) to the effect that: . . If a point relates to the giving, refusal or modification of an instruction such instruction shall be set forth in full in the argument portion of the brief. . . ”

      . There are several references in the transcript from which the inference can be drawn that plaintiff “failed to hold the safe on the hand truck so as to keep it from tipping forward”:
      (1) During cross-examination of plaintiff, plaintiff testified that he “guessed” he was trying to hold it on to keep it from falling off.
      (2) Plaintiff testified that it happened so fast that “it’s hard telling what happened other than the safe tipped from the top.”
      (3) Defendant’s favorable evidence indicated that the “dolly [controlled by Mr. Huddleston] never did go out of control.” There is no dispute that defendant had control of the dolly.
      (4) The person on the bottom [Peppes] is to “resist the weight [of the safe] as it comes towards [him], . . . That’s what determines the speed and that’s what determines the procedure.” “[T]he person in front of the object being moved on a dolly is the one that determines how fast it comes down the steps.”
      (5) If no one holds the object it will fall forward.
      (6) The person at the bottom controls “the downward movement of the dolly.”
      (7) Huddleston never touched the safe— his hands were on the dolly.
      (8) Plaintiff testified that he was holding the safe to keep it from falling off. It did fall off. The inference may well be that he did not, at some time, hold it.


author: WEIER, Presiding Judge.

text:
    Imogene HOEFEL, Executrix of the Estate of Hilmar W. Hoefel, Deceased, Plaintiff-Respondent, v. Kenneth D. HOEFEL et al., Defendants-Appellants.
    No. 36819.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 10, 1976.

      Harvey B. Cox, Jr., St. Louis, for defendants-appellants.
    William G. Phillips, St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

This is a suit by a father against two sons for restitution of an interest in certain stocks which had been transferred to the sons as joint tenants by the father in 1968. The name of the wife of one of the sons had been added inadvertently to one of the stock certificates, and she was also joined as a defendant. After trial to the court, judgment was rendered that the transfer from the name of plaintiff into the joint names of plaintiff and the defendants as joint tenants with right of survivorship be set aside and plaintiff was declared to be the sole owner of the shares so transferred. The court further ordered that the defendants execute stock powers to transfer their interest in the stock back to plaintiff, and in the event of failure to do so within thirty days their interest would pass by the judgment of the court to the plaintiff. The court retained jurisdiction to carry out its judgment.

After defendants filed their notice of appeal, plaintiff Hilmar W. Hoefel died on January 10, 1975 and Imogene Hoefel, his widow, as executrix of his estate, was substituted as plaintiff-respondent on appeal.

Plaintiff Hilmar W. Hoefel was born June 26, 1905. He married his first wife, Lorraine, on April 7, 1926, and to this marriage two sons were born: Hilmar T. Hoe-fel, born in 1927, and Kenneth D. Hoefel, born in 1928. They are the only children of plaintiff and both are defendants in this action. From the time of their marriage until 1938, a period of twelve years, Hilmar W. Hoefel and Lorraine operated a bakery business in St. Louis. During this time plaintiff was the baker and Lorraine sold the baked goods to the public and kept books. The two boys, after they became old enough, were given chores to do about the bakery. This business was sold in 1938. Then from 1940 to 1950 plaintiff owned and operated a paper route. The boys would help their father in throwing the papers and plaintiff would drive the truck. When the boys were not available, Lorraine would drive and plaintiff would throw the papers. Lorraine took care of the books and billed the customers. After selling the paper route in 1950, plaintiff was employed at Anheuser-Busch Company and except for an extended period of illness commencing in 1968, worked there from April 12,1951 until July 1, 1970 when he retired.

Defendant Hilmar T. Hoefel, after attending high school, continued on in college and graduated from St. Louis University with a Bachelor of Science degree in accounting. He worked in the St. Louis area until 1967 and at that time obtained employment in California where he and his wife and family then moved. Defendant Kenneth remained in St. Louis, and at the time of trial was a brewer at Anheuser-Busch where he had been employed since 1948.

Lorraine died of cancer on April 9, 1964. Prior to her death, in 1962, the house on South Kingshighway was transferred into the four names of the father, mother and two sons as joint tenants with right of survivorship. The savings accounts and bank accounts were also placed in all four names as joint tenants. The stocks remained in the names of Hilmar W. and Lorraine Hoefel until after her death, and at that time they were transferred into the name of plaintiff Hilmar W. Hoefel.

After Lorraine’s death, Kenneth and his wife, who continued to live in the St. Louis area, were solicitous of plaintiff’s welfare and Kenneth in particular stopped by to see his father at his home on frequent occasions. On January 7, 1968, plaintiff was taken to the hospital following an episode of hallucination in which he gave a story of masked men entering his room at 10:00 o’clock in the morning, taking his eyeglasses, hearing aid, and some money, and remaining in his home for a period of four days. He was weak, had a loss of equilibrium, was shaky and nervous. Admittedly at this time he was drinking eight bottles of beer a day. Tests on the electroencephalogram showed a slow brain dysrhythmia, non-focal, non-paroxysmal, which the doctor stated was consistent with a diffuse organic cerebral disorder. This and other tests indicated cerebral impairment which the doctor believed was brought about by generalized arteriosclerosis along with alcoholism. There was an impairment of cerebral functioning which the doctor considered to be chronic. He readily admitted that the condition could improve when a person remained abstinent from alcohol, but where permanent damage had occurred, there would be no improvement. The doctor considered that plaintiff would be more dependent on people with whom he was familiar, that is, members of his family, and if gullible would accept information he was given without question. The doctor admitted that alcoholism was probably the main factor causing his condition. Hilmar W. Hoefel was released from the hospital on February 7, 1968, and then was placed in a convalescent home where he remained until May of 1968. Kenneth, because of his father’s condition, started taking care of his father’s business affairs in that he took over the chore of writing checks on his father’s checking account and depositing dividends and other income to it. Disbursements were made to take care of the hospital, convalescent, and medical costs, and the monthly expenses associated with the maintenance of his father’s home.

After plaintiff was released from the convalescent home about the last of April, 1968, Kenneth visited him in his home, took him to the doctor, and observed that his father had returned to drinking. He would see beer bottles at various places about the house, and in opening the icebox door, would find it full of beer. On June 16, 1968, plaintiff called Kenneth and told him that he had fallen, and suggested that he come over. Kenneth and his wife went over to his father’s house and found that Mr. Hoefel had a big bruise on his arm and was in a very shaky and nervous condition. They arranged to have him admitted to the hospital and took him there. Finding no fractures, and a major improvement on his condition after withdrawal from alcohol while in the hospital, plaintiff’s doctor concluded that he should be confined to a nursing home for a long time in order that there might be complete withdrawal of alcoholic drinks. Kenneth had been advised of this conclusion by the doctor and on the date of discharge from the hospital, plaintiff was taken again to a nursing home in accordance with this recommendation. It was at this time, according to Kenneth, that he concluded that the stocks would have to be transferred because of his father having to go to a nursing home for a long time and because the stocks might have to be cashed in for an “emergency”. A power of attorney was executed by plaintiff in favor of Kenneth. The stocks were removed from the safe deposit box of plaintiff on which Kenneth was a deputy, and stock powers were executed to transfer the stock in joint names. This was done sometime during July of 1968. Plaintiff stated that he had no recollection of this transaction or of any of the papers which he signed in order to effect it. Kenneth, on the other hand, testified that his father had suggested that they might as well have everything put in three names and that the change be made.

Plaintiff remained in the nursing home until May of 1969. He then returned to his employment at Anheuser-Busch and remained there until he retired from his employment July 1, 1970. On September 12th of that year he was married to Imogene, now his widow and executrix of his estate.

The stocks, which were valued at some $105,000.00, after being transferred into the joint tenancy, were kept by Kenneth in a box in his name and the name of his brother in California. After his father returned from the convalescent home in 1969, Kenneth returned the stocks to his father’s safe deposit box, and two weeks after Mr. Hoe-fel was married, he and his wife went to the safe deposit box and found the certificates of stock in joint tenancy with his sons. He testified that this is the first time that he was award that the names of his sons had been placed on the certificates as joint tenants.

In the trial below, plaintiff contended and produced evidence in support of his contention, that the transfer of the stock into the names of himself and his sons was the result of undue influence exerted upon him by Kenneth while Kenneth was in a confidential relationship with him. He further contended that the transfer was done at a time when plaintiff lacked sufficient mental capacity to make a valid transfer; that it was done without authorization from plaintiff and was not a gift; and that there was no consideration for the transfer. Defendants denied the exertion of any undue influence upon their father, the lack of mental capacity, and affirmatively supported a theory of gift except for the income to be derived from the stocks for the remainder of plaintiffs life. They particularly relied upon an alleged family agreement by and between plaintiff and the defendants and their mother, Lorraine, which occurred after the mother found that she had cancer, whereby it was agreed that all of the parties would hold all of the property which had been accumulated during the lifetime of the parents and after their death it would be divided equally between the defendants Kenneth D. and Hilmar T. Hoe-fel.

After an adverse judgment by the trial court, the defendants on appeal contend essentially that the court’s judgment in favor of plaintiff is not based upon clear, cogent and convincing evidence of undue influence, lack of sufficient mental capacity, and the other theories for restitution advanced by plaintiff and supported by plaintiff’s evidence. No findings of fact and conclusions of law were requested and none were given. In this posture, all fact issues upon which no specific findings have been made are considered as having been found in accordance with the result reached. Upon appellate review, due regard is given to the opportunity of the trial court to judge the credibility of the witnesses, but we review the case upon both the law and the evidence as in suits of an equitable nature. Rule 73.01.

This is a suit between members of a family who were alive at the time of the trial of the case. It is not a situation where heirs are disputing with someone who was preferred over them by a deceased transfer- or. Under these circumstances, the trial judge had the benefit of the testimony of all parties to the transaction. In some of the evidence presented to the court there is conflict, and the trial court chose to believe plaintiff and his witnesses, accepting his theory of the case and his evidence. Deference should be given the determination of fact issues by the trial judge. Brunswick Corporation v. Briscoe, 523 S.W.2d 115, 119[1] (Mo.App.1975); Morris v. Holland, 529 S.W.2d 948, 952[1,2] (Mo.App.1975). As indicated by all of the testimony, there could be no question but that plaintiff was critically ill from alcoholism and arteriosclerosis which had affected his mind in June and July of 1968 when the transfer of the stock interest was made. Even in his weakened condition, we have concluded that plaintiff knew something of what was going on and allowed the stock to be transferred into joint ownership with his sons so that in the event his condition became more critical or that he died, the sons would have a proprietary interest in the stocks. It is not the conclusion of the trial judge nor is it our conclusion that he intended to make a gift or to transfer this interest in the stock in 1968 in accordance with the so-called family agreement which was allegedly discussed and entered into orally in 1962.

Considering the defendants’ evidence supporting a gift theory, it is obvious that under their version of the transfer, the father did not make a complete and unconditional transfer. The stock was to remain the father’s as long as he lived. There was no intention of relinquishment of dominion over the property. The essentials of a gift of personal property are a present intention to make a gift on the part of the donor, a delivery of the property by the donor to the donee, and an acceptance by the donee whose ownership takes effect immediately and absolutely. In re Estate of Wintermann, 492 S.W.2d 763, 767[3] (Mo.1973); Firestone v. Yoffie, 494 S.W.2d 394, 398[3] (Mo.App.1973). The evidence does not show an intent at the time of the transfer to make a gift on the part of the plaintiff. The transfer was not accepted as a gift by Kenneth who consistently stated that the stock belonged to his father. The father furthermore was in a condition where he was so weak in mind that he could not recall even having made the transfer.

As to the alleged family agreement, in order for it to be binding it must measure up to the law’s requirement of a contract that it be sufficiently definite to enable a court to determine its exact meaning and to definitely measure the extent of the promisor’s liability. Ogilvie v. Ogilvie, 487 S.W.2d 40, 41[1] (Mo.App.1972). In 1962, when the family home and savings accounts were placed in joint names with the two sons by plaintiff and his wife, no action was taken by the parents at that time to make any change in their stock holdings. The stocks were retained in the joint names of husband and wife. To find that the transfer in 1968, some six years after an agreement was allegedly made, was in compliance with it would be breathing life into a family arrangement executo-ry in nature and without any definiteness of terms. Such arrangements, because of their very nature and the inability of those who participate in them to agree on what was said and what was intended to be done, are “[m]ore honored in the breach than the observance.”

The evidence does not indicate any actual fraud on the part of Kenneth who was instrumental in setting up the joint ownership of the stock. In fact, Kenneth testified in deposition and at the time of trial that although his father suggested that everything including the stocks be put in the three names of the father and the two sons, he considered the stocks to belong to his father. When his father made a request that the stocks be transferred to him after his discovery of the change in the name and his remarriage to Imogene, he responded by saying that he would have to check with his brother first and talk it over. Referring to him and his brother, he stated: “‘We tried to protect him * * *.’” Even at time of trial he testified that he still considered the stocks to belong to his father. Hilmar T. Hoefel, the other son who was in California all the time these matters transpired, in response to a demand from his father for transfer of his interest in these stocks, replied in a letter dated March 18, 1971, “ * * ⅜ I would want to wait until I have consulted with Kenneth and I would also want to visit with you and your wonderful new wife in order to personally meet her and to evaluate your future with her as man and wife.” When asked as to whether he considered the stocks to be his father’s, he replied that he considered the family agreement that it was “our” stock, but nevertheless over the years even after the stocks were transferred over to the names of all three, Hilmar T. Hoefel had prepared his father’s tax returns and had always indicated that the stock dividends were income of his father. Through all of the testimony of the sons, there is an obvious concern over the father making disposition of his property including the stocks so that they, the sons, would either receive a smaller share or no share at all. As to them, there is probably no doubt that their fears may be substantiated by what may transpire in the future in view of their father’s attitude after their refusal to transfer the stock back in his name. But this does not place this court or any other court in the position of being the father’s guardian to oversee the disposition of his property, unless he has been adjudicated incompetent, nor to direct the father with regard to the objects of his bounty. We are only concerned with the rights of the parties in this litigation and not with disposition of the property in the future outside of the issues here framed and the disposition here ordered.

Plaintiff here sought restitution of the interest in his stocks which he transferred to his sons on the basis that the stocks had been transferred to them while he was in a weakened condition and they had used undue influence and in a sense constructive fraud to bring this about. It is our view that it is not necessary to prove actual fraud or constructive fraud in order to sustain plaintiff’s position. Unjust enrichment or an unfair wrongful holding without any proof of fraudulent intent may be the basis for restitution of a person’s property of which he has been unjustly deprived, and he may seek the aid of equity to restore him as rightful owner through any remedy which may be afforded by equity. March v. Gerstenschlager, 436 S.W.2d 6, 8[2] (Mo.1969); Swon v. Huddleston, 282 S.W.2d 18, 25[7-10] (Mo.1955); Wallach v. Joseph, 420 S.W.2d 289, 295 [4,5] (Mo.1967); Skidmore v. Back, 512 S.W.2d 223, 230[6] (Mo.App.1974). Although constructive trusts were the remedies sought or decreed in these cases, the principle of equity sustaining the decree remains the same irrespective of the remedy. “A person who has been unjustly enriched at the expense of another is required to make restitution to the other.” Restatement of the Law of Restitution, § 1. As stated in § 4 of Restatement of the Law of Restitution: “In situations in which a person is entitled to restitution, he is entitled in an appropriate case, to ⅜ * ⅜ : ⅜ * * (c) a decree by a court of equity that the title or possession' of the subject matter be transferred to him ⅜ * # 99

The court below has determined the issues in favor of plaintiff. This determination is not erroneous. The judgment is affirmed.

DOWD and McMILLIAN, JJ., concur.