author: KENNEDY, Presiding Judge.

text:
    Walter MARSHALL and Ruby Marshall, d/b/a Marshall Oil Company, Appellants, v. William E. SPANGLER, Respondent.
    No. WD 35902.
    Missouri Court of Appeals, Western District.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Application to Transfer Denied April 2, 1985.

      Kevin K. Anderson and John C. Milhol-land, Harrisonville, for appellants.
    Lynn K. Ballew, Harrisonville, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   KENNEDY, Presiding Judge.

The Marshalls appeal from a trial court judgment which denied an easement in favor of their service station premises for ingress and egress of their customers over, and for parking upon, Spangler’s adjoining restaurant premises, and which denied damages for the obstruction of said supposed easement.

The background facts are as follows:

The service station, originally known as “Don’s Texaco Truck Stop”, and the restaurant, which has always been known as the “Dinner Bell Restaurant”, were originally constructed by Mr. and Mrs. Ament on a tract of ground lying 641 feet along what is now Highway 291 at Harrisonville. The highway at that point runs north and south. Mr. and Mrs. Ament operated the service station business until some date before 1973, when they leased it to plaintiff Marshalls’ predecessors in title. The lease was a lease-purchase arrangement, as shown by the inventory of Mr. Ament’s estate. He died in 1975. Mrs. Ament in 1977 conveyed the property to them. The plaintiffs Marshall purchased the service station in 1980 and have continued to operate it until the time of trial.

The restaurant was never operated by the Aments but was operated by various other persons, probably under lease. Defendant Spangler leased the restaurant in 1966 and operated it as lessee until 1973. In 1973 he purchased it, and has continued to own and operate it up until the time of trial.

During the whole history of the restaurant and the service station they have operated side by side, .except for an interval of unspecified length before the Marshalls’ 1980 purchase of the service station property. During that period the service station had been closed.

The service station and the restaurant although under different management had always (except for a brief time at the beginning when the operator of the restaurant undertook to operate a gourmet restaurant) and until the events which precipitated this lawsuit in 1982, operated in tandem as a “truck stop”. It was attractive to truckers in that they could fuel at the service station and eat at the restaurant. There was a good deal of space around both establishments to accommodate large trucks. During a part of the time the two establishments sponsored joint advertising.

The service station and restaurant, as noted before, occupied a lot lying 641 feet along the highway. The service station was on the north end. The restaurant was on the south end. A parking area lay between the two. There were seven wide driveways from Highway 291 for ingress and egress. There was no barrier between the service station premises and the restaurant premises. The customers of both used any one of the seven driveways and both used the common parking lot. It appears, however, that the large trucks fueling at the service station made a good deal more use of the parking area and the driveways near the south end of the lot than the restaurant customers made use of the driveways on the north end. Much of the truckers’ use of the parking was while they were eating or were drinking coffee at the restaurant.

When Mr. and Mrs. Ament divided the title as between the service station premises and the restaurant premises, Spangler acquired title to the south 241 feet of the tract, while Marshalls’ predecessor in title received the north 400 feet of the tract. Each of the two tracts was 300.66 feet in depth. The restaurant property contained two acres and the service station premises included 2.75 acres.

The three south driveways led into the restaurant property. The northernmost of those three was wholly on the restaurant property but was near the boundary line. Four of the driveways were on the service station premises.

The trouble which has wound up here started in 1982 when Spangler built a concrete barrier east and west parallel to the boundary between his restaurant property and Marshalls’ service station property and 50 feet south thereof. Spangler explained at trial that this was to prevent the hazard of trucks rolling across the premises, and to prevent oil spills from flowing on to his paved parking lot. After the barrier’s erection, the trucks could no longer pass from the service station property to the restaurant without driving into the highway. Spangler also blocked the southernmost exit. He divided the second driveway, the next one toward the north, constructing “enter” and “exit” lanes, so that it could not be used by a large trailer truck, although it could be used by passenger cars. The next driveway to the north (lying nearest the service station boundary), his employees blocked by parking their cars, although that continued only for a time and at trial time that driveway could be used by the trucks entering or leaving the service station premises. Spangler has threatened to build his concrete barrier on the boundary between the service station property and the restaurant property, which would effectively prevent the use of the third driveway from the south by Mar-shalls’ service station customers.

The Marshalls attacked this barrier by means of the present lawsuit. Their theory was, and is, that they have an implied easement for their customers to park on and drive over the restaurant property, and to have access to the driveways located on the restaurant property. The respective deeds by which the parties hold title make no reference to any easement.

“Where the owner of land has, by any artificial arrangement, effected an advantage for one portion, to the burdening of the other, upon a severance of the ownership the holders of the two portions take them respectively charged with the servitude and entitled to the benefit openly and visibly attached at the time of the conveyance of the portion first granted.”
That principle applies to ways, lateral support, and riparian rights (quoting Hall v. Morton, 125 Mo.App. 315, 102 S.W. 570 (1907)) (citations omitted).

Id. 9 S.W.2d at 980.

In Causey v. Williams, 398 S.W.2d 190 (Mo.App.1965), the court says:

It is also held (17A Am.Jur., Easements § 52, pp. 660 and 661) that to create an easement by implication from pre-existing use there must be (1) unity and subsequent separation of title; (2) obvious benefit to the dominant estate and burden to the servient portion of the premises existing at the time of the conveyance; (3) use of the premises by the common owner in their altered condition long enough before the conveyance and under such circumstances as to show that the change was intended to be permanent; and (4) reasonable necessity for the easement.

Id. 398 S.W.2d at 197.

The evidence in this case, as we shall show on a closer look later in the opinion, shows that the availability of the restaurant parking area and driveways for parking and for ingress and egress would be an advantage, a benefit, a convenience to Marshalls’ service station property. That is not enough; there must be a reasonable necessity therefor. The emphasis is more on the word “necessity” than on the word “reasonable”. Notice the following language in Missouri State Oil Co. v. Fuse, 360 Mo. 1022, 232 S.W.2d 501 (1950):

The principle of the law of implied easements is applicable when the easement is necessary; the rule is not one of absolute or strict necessity, but of reasonable necessity — the benefit must be reasonably necessary to the enjoyment and use of the dominant estate — but the rule is nevertheless one of necessity, not of convenience. (Citations omitted.)

Id. 232 S.W.2d at 506.

This requirement that one who claims an implied easement must show that the easement is necessary is based upon a policy mentioned earlier in that case, 232 S.W.2d at 506:

At the outset it may be stated that the tendency of the courts, as a general rule, is to discourage implied grants of easements, since the obvious result, especially in urban communities, is to fetter estates, retard buildings and improvements, and violate the policy of recording acts. 17 Am.Jur., Easements, § 32, p. 944; Schnider v. M.E.H. Realty Inv. Co., 239 Mo.App. 546, 193 S.W.2d 69.

Have the Marshalls shown such a degree of necessity for the claimed easement that it must be implied as a matter of law? We hold that, under the evidence in this case, the trial court may not be held in error in rejecting the Marshalls’ claim of implied easement.

Most of the testimony centered upon the diesel pumps and the large tractor-trailer trucks, 50 to 65 feet in length, which fueled at the diesel pumps. There appear to be three diesel pumps located on a single concrete island. They are near the south side of the service station tract, remote from the service station building and the other pumps which are covered by a canopy and located to the north of the diesel pumps. Mr. Marshall testified that the south diesel pump was about 15 feet from his property line and the north diesel pump was 23 feet from his property line. It appears to us from the scale aerial photograph which has been supplied that the southernmost diesel pump is more than 50 feet north from the boundary. It would appear from the pictures that it would be difficult for a 50-to-65-foot trailer truck which had parked parallel to the diesel pumps to turn out of the southernmost service station driveway. It would have to turn almost at a right angle. Mr. Marshall testified, “It would take some maneuvering”. This makes it much more convenient and inviting for them to drive forward and go out of one of the restaurant driveways.

Mr. Marshall also testified to limited truck parking on his property because of congestion caused by his own and customers’ vehicles.

There seems to be several alternative arrangements which could be made. The trucks could drive into the diesel fuel pumps going east and west — at right angles with the highway — and could enter or depart by a driveway along the south part of the service station property, exiting on a road which runs along the north side of the service station property and which connects with the highway. A second alternative to which no one testified, but which appears feasible from the photographs, would be to move the diesel pumps toward the north, which would allow trucks to enter and depart by the southernmost service station driveway. Once again from the scale aerial photos supplied to us, there appears to be plenty of room for that. There is no evidence of the expense involved in either of these alternate arrangements, but they would not be prohibitive. Seested v. Applegate, 26 S.W.2d 796 (Mo.App.1930); Foxx v. Thompson, 358 Mo. 610, 216 S.W.2d 87 (1948).

We think the evidence is entirely sufficient to sustain the trial judge’s denial of plaintiff Marshall’s claim of an implied easement over defendant Spangler’s restaurant property in favor of his, plaintiff’s, service station property. It follows, of course, that plaintiff is not entitled to damages for loss of business.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: NUGENT, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. John Harvey SPROUS, Appellant.
    No. WD 35533.
    Missouri Court of Appeals, Western District.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Application to Transfer Denied April 2, 1985.

      C.J. Larkin, Jefferson City, for appellant,
    John Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen. (argued), Jefferson City, for respondent.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   NUGENT, Judge.

Defendant was convicted of offering violence to a guard and was sentenced to eight years in prison. The case was transferred by the presiding judge of the circuit court of Moniteau County to a Moniteau County Associate circuit judge for trial pursuant to § 478.240. The defendant made no objection to this transfer at that time or at any time before this appeal.

Defendant raises only one point on appeal, that is that §§ 478.240 and 478.245, both of which authorize expansion of the subject matter jurisdiction of associate circuit courts, are unconstitutional because they are unlawful delegations of legislative power and they violate the constitutional prohibition against special or local laws. Defendant has moved in this court that the case be transferred to the Missouri Supreme Court. Mo. Const. Art. V, § II.

The state raises the issue in its brief that defendant failed properly to present this constitutional challenge at the earliest opportunity in the course of an orderly proceeding. State v. Danforth, 654 S.W.2d 912 (Mo.App.1983). In his reply brief defendant seeks to avoid this argument by pointing out that the issue he raises concerns the subject matter jurisdiction of the associate circuit court and that jurisdictional questions can be raised at anytime, even for the first time on appeal. See Brown v. State, 452 S.W.2d 176, 179-80 (Mo.1970).

We recognize the seeming conflict between the two principles discussed above. We have thoroughly addressed this issue in State v. Danforth, supra, at 925-26, and we refer the parties to that case for a full discussion of the point. We adhere to the position taken in the Danforth case that whenever the Missouri Supreme Court has addressed the timeliness question it has followed the rule set forth originally in State v. Mackey, 259 S.W. 430 (Mo.1924). Therefore, we hold that defendant’s failure to raise this issue at the earliest opportunity was a concession of the validity of the statutes, and the point was not properly preserved. State v. Byrne, 503 S.W.2d 693 (Mo.1973) (en banc).

Accordingly, we deny the motion to transfer to the Supreme Court and affirm the judgment of the trial court for the reason that the defendant failed to present his constitutional challenge at the earliest opportunity and thus failed to preserve the point for appeal.

All concur.


author: LOWENSTEIN, Judge.

text:
    Vannie Kay KLINE, Plaintiff-Respondent, v. Jeffrey John KLINE, Respondent-Appellant.
    No. WD 35727.
    Missouri Court of Appeals, Western District.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Application to Transfer Denied April 2, 1985.

      F. Joe Delong, III, Jefferson City, for respondent-appellant.

      Betty K. Wilson, Oliver, Walker, Carlton & Wilson, Columbia, for plaintiff-respondent.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   LOWENSTEIN, Judge.

This is an appeal by a father whose request for joint custody was denied; sole custody of the only child was awarded to the respondent-mother.

The mother and father were married 14 years prior to dissolution on February 1, 1984. A son was born on May 27, 1980. Although both have cared for him, the mother has provided the primary welfare and care. The record indicates a turbulent marriage, marred by abusive behavior toward the mother by the father, some of it in front of the boy. The father was shown to overreact angrily to relatively minor situations. The parents are extremely resentful of each other and have over a period of years been in constant disagreement over the care of the child. The mother is a clinical psychologist, the father a physician. Any likelihood of agreement on any plan of joint custody as of the time of trial appeared to be nil. There was expert testimony that both parents could be fit custodians and both loved the boy. Evidence indicated the mother to be the most qualified, and that because of the deep resentment and power struggles between the two the child could be a pawn and that a joint custodial situation would not be appropriate. Dr. Alfie, a child psychiatrist who testified for the mother strongly suggested liberal visitation be granted to the father.

The father contends that the trial court erred in not awarding joint custody. A guardian ad litem for the child did not join in the appeal. This is a case of first impression in Missouri since prior to 1983 legislative action, joint custody was not available in Missouri. Cradic v. Cradic, 544 S.W.2d 605, 607 (Mo.App.1976). There are no cases interpreting § 452.375.3 RSMo (Supp.1983), applicable to this case, which provides:

As between the parents of a child, no preference may be given to either parent in the awarding of custody for the sole reason that the parent is the mother or the father of the child, nor because of the age or sex of the child. The court may award joint custody or sole custody to either parent, or when the court finds that each parent is unfit or unable and that it is in the best interest of the child, then to a third party (emphasis added).

While there are proponents for presumption for joint custody, Blond, “In the Child Best Interests—A Better Way: The Case for Presumptive Joint Custody in Missouri” 52 UMKC L.Rev. 567 (1984), the father concedes that as the statute now reads, joint custody is merely an option. Therefore on appeal, the trial court’s findings on matters of custody still control unless the reviewing court is convinced that the welfare of the child requires some other disposition. Fastnacht v. Fastnacht, 616 S.W.2d 98, 100 (Mo.App.1981). It is presumed that the trial court studied the evidence thoroughly and ordered that which was in the best interests of the child. Id.

The father urges adoption of the criteria set out by the New Jersey Supreme Court in Beck v. Beck, 86 N.J. 480, 432 A.2d 63, 71-72 (1981), in deciding whether joint custody is appropriate. The requirements are that 1) both parents are “fit,” 2) both desire continuing involvement with their child, 3) both parents are seen by the child as sources of security and love, and 4) both parents are able to communicate and cooperate in promoting the child’s best interests. In Beck, the trial court sua sponte awarded joint custody, and the defendant-mother appealed. The supreme court held that it was well within the trial court’s discretion to make such an award, but since two years had elapsed since the original decree, the case was remanded for additional fact finding consonant with the opinion.

Since the Beck decision, two New Jersey opinions have applied the four requirements and decided sole custody was the best solution. In Helentjaris v. Sudano, 194 N.J.Super. 220, 476 A.2d 828, 830 (1984), custody to the mother was upheld stating that “[¡'joint custody was clearly out of the question because of the inability of the parents to cooperate ...” In Mastropole v. Mastropole, 181 N.J.Super. 130, 436 A.2d 955, 959-60 (1981) the court reversed an award of joint custody because the standards of Beck had not been met. The child was ambivalent about staying with the father, and preferred the mother. Also the evidence showed the parents were “unable to isolate their personal conflicts from their roles as parents.”

The father points to a Pennsylvania decision, In re Wesley J.K., 299 Pa.Super. 504, 445 A.2d 1243 (1982), where the court adopted the Beck criteria and remanded the case to the trial court, which originally granted sole custody to the father for further consideration on those four factors. The court also noted that “the absence in the record of animosity of one parent toward the other strengthens the case for shared custody.” Id. 445 A.2d at 1249. Clearly the present case has no such absence. The record indicates the parents have bitterly disagreed about their son’s upbringing, including his medical care, substitute child care, religious training, and proper role modeling behavior.

For the purposes here the Beck criteria need not be embraced or denied, for they are all inherent components of the polestar of custody cases: the best interests of the child. Given that one standard, and considering the facts in this case, the trial court did not abuse its discretion in granting sole custody to the mother. Deference is given to the trial court’s ability to hear and weigh the evidence. Here the potential for cooperation in joint decision making was far outweighed by the evidence of power struggles and hostility. Under the applicable scope of review this court finds no reason to set aside the judgment awarding sole custody to the mother, that conclusion being in the best interest of the child and not clearly erroneous. Cissell v. Cissell, 573 S.W.2d 722, 724 (Mo. App.1978).

Absent legislative mandate to the contrary, this court feels that judges should be given as much lattitude and discretion as possible in the area of child custody. Since the general assembly has had the opportunity but has chosen to include no presumptions relating to custody, the courts should follow suit. The legislature has chosen only to remove presumptions, i.e., the deletion of the “tender year’s doctrine.” Section 452.375(3). Likewise, since the advent of the additional tool of joint custody in 1983, there have been no requirements of things or solutions the trial courts must use in custody matters. This results in an increased reliance on the good judgment of Missouri judges and the co-operation of the family law bar in custody matters.

The award of joint custody is discretionary. The review of the use or non-use of it in a particular case is the same as for any appeal in family law cases. This concept is but another arrow in the quiver of solutions for trial judges. Courts of Missouri should not be constrained to order joint custody just because the parties so stipulate or agree; similarly one of the parents should not be able to veto such a court decision by failure to agree or failure to cooperate with the joint custody determination.

The father’s other contention is that the trial court erred in not including in its decree a restriction that neither parent move out of the Boone/Callaway County area without the other’s written permission or court order.

The only statutory authority along these lines is § 452.375(6) RSMo (Supp.1983) which places a restriction on a custodial parent moving out of the state. But even in that situation courts have continually allowed the custodial parent to move. This court said in In re the Marriage of Bard, 603 S.W.2d 108, 109 (Mo.App.1980); “[i]n our highly mobile society it would be unrealistic to inflexibly confine a custodial parent to a fixed geographical area if removal to another jurisdiction was consistent with the best interests of the minor child.”

The same thing can be said of a move within the state. In the Helentjais v. Sudano case supra 476 A.2d at 832, the appellate court reversed a trial court’s restriction on the custodial mother that she locate within a 40-mile radius of the father. The court pointed out that “the family unity which is lost as a consequence of the divorce is lost irrevocably, and there is no point in judicial insistence or maintaining a wholly unrealistic simulation of unity.” There the facts were quite similar to the present case in that the mother was a physician and the father an engineer with a Ph.D. in physics. The appellate court said that it would be no more difficult for the father to relocate his career than for the mother. In fact “[i]f either is to sacrifice in this respect, there is indeed less reason to demand the sacrifice to be made by the custodial parent since it is she in the end who must arrange her life in a manner consistent with the day-to-day burdens of simultaneously raising a child and pursuing a career.”

In this case, if and when the mother plans to move out of Boone/Callaway Counties or even the state, at that point the non-custodial father can petition the trial court to review what is in the best interests of the child. Provisions to insure a relationship with both parents can be made without confining the residence of the mother. In re Marriage of Dusing, 654 S.W.2d 938, 942 (Mo.App.1983). The point is denied.

The request for damages by the mother for frivolous appeal, Rule 84.19 is denied. The judgment of the trial court is affirmed.

All concur.

      .This section has since been amended. The present law is found in the 1984 supplement of the Revised Statutes. It now separately defines joint legal custody and joint physical custody. Subsection three, in effect since August 14, 1984 now reads:
      As between the parents of a child, no preference may be given to either parent in the awarding of custody for the sole reason that the parent is the mother or the father of the child, nor because of the age or sex of the child. The court may award joint physical custody or joint legal custody, or both, to both parents or sole custody to either parents, or when the court finds that each parent is unfit or unable, and that it is in the best interest of the child, then to a third party. (Emphasis added.)

      . At present there are three states with a statutory joint custody preference. See Cal.Civ.Code § 4600.5(a) (West 1983); Kan.Stat.Ann. § 60-1610(a) (Supp.1982); Nev.Stat. § 125.490 (1981);

      . Missouri joins at least seven other states which presently allow the option of joint custody: See Iowa Code Ann. § 598.2 l(4)(b) (West 1981); Me.Rev.Stat.Ann. Tit. 19 § 214 (Supp. 1982); Mich.Comp.Laws § 722.23; NJ.Rev.Stat. § 2A:34-23; Or.Rev.Stat. § 107.095(l)(b); Pa. Stat.Ann. Tit. 23 § 1005 (Purdon 1981); Wise. Stat.Ann. § 767.24(l)(b) (West 1981).
      Two states have statutes which allow joint custody if there is an agreement between the parties: see Colo.Rev.Stat. § 14-10-129; Tex. Fam.Code Ann. § 14.06 (Vernon Supp.1984).


author: PUDLOWSKI, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Olive Eugene JOHNSON, Defendant-Appellant.
    No. 48304.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 26, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 13, 1985.
    Application to Transfer Denied April 2, 1985.

      Henry B. Robertson, Asst. Public Defender, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
   PUDLOWSKI, Presiding Judge.

This is an appeal from convictions for kidnapping, assault in the first degree, and armed criminal action. Appellant’s sole point on appeal alleges trial court error in admitting testimony of the victim’s mother recounting statements made to her by the victim over the telephone. We affirm.

Viewed in light most favorable to the verdict, the evidence adduced by the State showed the following: The victim, Leon Turner, was “employed” by appellant, Olive Johnson, for the purpose of selling drugs. Appellant paid Turner for this work with cash from the proceeds.

On February 6, 1983, appellant approached Turner and demanded payment of money owed to him from Turner’s sale of drugs. Turner was $52 short because somebody had robbed him of some pills. At this point appellant pulled out a butcher knife and ordered Turner into his car. Appellant drove the car to a nearby apartment.

At the apartment, appellant insisted that Turner pay him the $52 dollars immediately. Turner attempted to comply by calling his mother on the phone. During the conversation, Turner told his mother that he needed $52 “because this man was going to hurt me.” Turner was unable to obtain the money from his mother.

At this point appellant left the room, returning with a .38 pistol. Appellant told Turner, “I’m going to kill you if you don’t get my money.” Turner responded he couldn’t get the money until Monday.

Appellant then ordered Turner to go outside. Outside, appellant pulled the gun and shot Turner. The bullet grazed Turner’s jacket. A second bullet hit Turner in the back. A third bullet hit Turner in the wrist as he protected his face. Appellant then put the gun behind Turner’s ear and fired a fourth shot. This bullet lodged in Turner’s face. Appellant pulled the trigger twice more, but the gun did not fire.

Turner got to his feet and attempted to run. An associate of appellant caught Turner and stabbed him in the back of the neck with the butcher knife. The man stabbed Turner again, this time in the chest. Appellant continued the attack by stabbing Turner in the throat. Turner pulled the knife out of his throat and started slashing back. Thereupon, appellant seized a near-by two-by-four and continued the attack on Turner. Appellant broke off the attack minutes before the police arrived.

Of special significance to this cause of action is the telephone call from Turner to his mother. Turner’s mother testified, over appellant’s objection, that she received a telephone call from her son asking for $52. Mrs. Turner also testified that her son told her “there was (sic) two guys holding him. He said they were going to kill him if he didn’t pay. He owed them $52. If he didn’t pay they were going to kill him.”

Appellant contends that the statements of Turner were offered to prove the truth of the matter asserted, and as such, were inadmissible as hearsay. We disagree. The statements were offered to corroborate the truthfulness of Turner’s testimony that he did make such a telephone call. The statements were not hearsay and were admissible.

Judgment affirmed.

GAERTNER and KAROHL, JJ., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Percy Lewis LAKE, Defendant-Appellant.
    No. 48336.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 26, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 13, 1985.
    Application to Transfer Denied April 2, 1985.

      James S. McKay, Asst. Sp. Public Defender, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Robert P. McCulloch, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   PUDLOWSKI, Presiding Judge.

This is an appeal from a conviction of possession of burglar tools. The appeal involves three questions. First, whether the trial court erred in allowing the use of appellant’s prior convictions in the state’s case-in-chief. Second, whether the trial court erred in allowing the use of the co-defendant’s prior convictions and arrests. Third, whether the state’s evidence was insufficient. We reverse.

The evidence adduced at trial showed that at approximately 1:00 a.m. on July 14, 1983, Ms. Jackie Kremer, a resident of the Sierra Vista apartment complex, observed a van parked in the cul de sac outside her building. Ms. Kremer observed a man get out of the van and walk around the side of her building. She summoned the police once the man disappeared from her sight. After the call, the man returned to the van. The police arrived a few minutes later.

Officer Lawrence O’Toole of the St. Louis County Police was the first to respond to the call. Upon arrival, Officer O’Toole approached the van and asked appellant and a second man, James Graham, for identification. A record check revealed that there was a warrant for burglary out on Graham.

A subsequent search of the van was conducted. Among the things found in the van were a pry bar, screwdrivers, gloves, a flashlight, a wire tester and several tire tools. A search was conducted of the area but there was no indication that a burglary had occurred or had been attempted.

At trial, appellant testified that he had been at his brother’s house in the City of St. Louis when Graham arrived and asked him to drive him to St. Louis County because Graham had no driver’s license. Appellant agreed. During their travels, the two got lost and headed into Riaza Square. The van was running hot so appellant pulled to the end of the cul de sac and parked. Graham left the van and returned without informing appellant why he left or where he went. The police arrived shortly thereafter.

In disposing of this appeal, we need only address appellant’s third contention that the state’s evidence was insufficient to sustain the conviction of possession of burglar’s tools. Specifically, the state has failed to prove that appellant had the intent to use these tools for such unlawful purposes.

Section 569.180, RSMo 1978 defines the crime of possession of burglar’s tools as follows:

A person commits the crime of possession of burglar’s tools if he possesses any tool, instrument or other article adapted, designed or commonly used for committing or facilitating offenses involving forcible entry into premises, with a purpose to use or knowledge that some person has the purpose of using the same in making an unlawful forcible entry into a building or inhabitable structure or a room thereof.

Thus, the state was required to prove that (1) appellant was in possession of the tools found in the van driven by him, (2) these tools were the type “adapted, designed or commonly used” in burglary related offenses; and (3) appellant had either the intent to use these tools for such unlawful purposes or the knowledge that his co-defendant would put the tools to such use. We quickly dispose of the first two elements.

First, in order to convict appellant of possession of burglar’s tools, the state must establish that appellant had legal possession. The state is not required to prove physical possession or that the tools were actually taken from the person by the accused. State v. Mintner, 643 S.W.2d 289, 290 (Mo.App.1982). Joint possession of burglar’s tools is sufficient to prove possession. State v. Emery, 610 S.W.2d 698 (Mo. App.1980).

In the case at bar, the jury could conclude that appellant had possession of the tools. The tools were on the floor of the van and were highly visible. They were not concealed in any fashion.

As to the second element, the state must prove that the tools were “adapted, designed or commonly used for committing or facilitating offenses involving forcible entry.” This element poses no problem. It is immaterial that tools were designed and adapted for lawful uses. The second element is met so long as the tools are suitable for illegal purposes. State v. Hefflin, 89 S.W.2d 938, 942-3 (Mo.1936). Appellant possessed various pry bars and wire cutters. These tools while legitimate in and by themselves, can also be adapted for illegitimate use. That is the reason the legislature included the third element that appellant have the intent to use the tools for a burglarious purpose. This is also where the state has failed to meet its burden of proof.

We note that there is no need to prove a burglary in order to prove the unlawful possession of burglar’s tools. State v. Lewis, 599 S.W.2d 94 (Mo.App. 1980). Additionally, the intent for use of the tools does not relate to any particular time or place but only to an unlawful purpose. State v. Wing, 455 S.W.2d 457 (Mo. 1970). However, the evidence taken in light most favorable to the state still fails to support the jury’s finding of an unlawful purpose. At best, the evidence indicated that at 1:15 in the morning appellant was in a neighborhood in which he did not live, sitting in a van which contained tools which could be used in the course of a burglary. This court refuses to adopt the presumption that a convicted felon possessing automotive repair tools has the intent to commit a burglary. The only additional evidence offered by the state to prove appellant’s intent was Graham’s exit from the vehicle. There was no evidence detailing Graham’s actions except for Jackie Kremer’s testimony that Graham walked along side her apartment. This evidence is insufficient to support the conviction.

Therefore, we reverse and vacate the judgment and sentence.

GAERTNER and KAROHL, JJ., concur.


author: REINHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Orville JACKSON, Appellant.
    No. 48401.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 26, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 13, 1985.
    Application to Transfer Denied April 2, 1985.

      Henry B. Robertson, Public Defender, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   REINHARD, Chief Judge.

Defendant, Orville Jackson, appeals from his conviction, after a trial to the court of possession of heroin, a Schedule I controlled substance. § 195.020 (RSMo.Supp. 1984). He was found to be a persistent offender, and sentenced to a term of 14 years’ imprisonment. § 195.200.1.(3) (RSMo.Supp.1984). We affirm.

Defendant raises two points on appeal. First, he alleges that the trial court erred in denying his motion to suppress a bag containing eight capsules of heroin which was found on his person. He contends that the search which led to the discovery of the bag was constitutionally infirm because it was the result of an illegal arrest. Defendant’s second point attacks the sufficiency of the evidence.

Defendant’s first point requires us to review the events leading up to his arrest and the discovery of the heroin on his person. In February 1983, police received information that defendant was selling heroin and cocaine from a residence at 3959A Palm, in the City of St. Louis. The information came from a confidential informant who said that defendant lived at that address. Acting on this information, police began watching the premises. The address was the second floor apartment in a two-family flat. During the course of their surveillance they saw defendant enter and leave the residence, with a key, several times. They also observed numerous people, some known drug addicts, come to the building for short periods of time, and then leave.

On February 23, 1983, police obtained a warrant to search 3959A Palm. In support of the application, two officers submitted affidavits attesting to the facts recited above. In addition, the officers stated that the informant had given reliable information at least three times in the previous six months, and that the informant told them he had been in the apartment within the previous 48 hours and had seen heroin and cocaine in the apartment.

On February 24, 1983, the day after the warrant was issued, police went to 3959A Palm to execute it. The police arrived at 7:30 p.m. but did not enter immediately. At about 8:00 p.m., they saw defendant leave the address and begin walking down the street. When he was about 150 yards from the building he was stopped by the police. He was frisked, and the frisk revealed a set of keys. Police took defendant back to the house, and began trying to open the door with a key. Upon realizing that people were still in the apartment, however, police broke down the door. Two adults and a small child were inside. A search of the premises revealed some drug paraphernalia, including a strainer with traces of heroin on it.

After the search, defendant and one of the other adults in the apartment were arrested. They were taken to police headquarters in downtown St. Louis. A strip search of defendant revealed the bag containing eight capsules of heroin.

Defendant maintains that his initial stop on the street was in fact an unlawful arrest, and that the discovery of heroin on his person thereafter was tainted by the illegality. He does not contest the validity of the search warrant, but asserts that its execution did not provide probable cause for his arrest, and could not remove the taint from the already illegal detention.

We begin by addressing the stop of defendant on the street. We agree that this was more than a mere investigatory stop, and that defendant was actually “seized” even though he was not formally arrested. Indeed, one of the officers testified that defendant was not free to leave and would have been restrained had he tried to walk away. The stop, therefore, must have been supported by probable cause to arrest. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). We determine that police had probable cause and that his arrest was legal.

Probable cause to arrest exists when the facts and circumstances within the knowledge of the arresting officers, and of which they have reasonably trustworthy information, are sufficient to warrant a belief by a person of reasonable caution that the person to be arrested has committed a crime. State v. Reynolds, 619 S.W.2d 741, 746 (Mo.1981). We determine whether there was probable cause based upon the facts known to the police at the time. State v. Moore, 659 S.W.2d 252, 255 (Mo.App.1983). The determination is made upon practical considerations of everyday life, on which reasonable persons act, not the hindsight of legal technicians. State v. Heitman, 589 S.W.2d 249, 253 (Mo. banc 1979), cert. den. 446 U.S. 941, 101 S.Ct. 29, 65 L.Ed.2d 1174 (1980).

Here, defendant was stopped 150 yards from the house for which the police had a valid search warrant. Although defendant argues that the State did not show the house was his residence, it is clear from the record that he had free access to the premises by means of key. In addition, the previously reliable informant had specifically identified defendant as the person who was selling controlled substances from that address. The surveillance had given the police some indication of the reliability of the tip. We find these facts to be sufficient to cause a person of reasonable caution to believe defendant was committing an offense. See State v. Moore, 659 S.W.2d at 257-58.

Our conclusion is buttressed by a comparison of this case with United States v. Boyd, 696 F.2d 63 (8th Cir.1982). In Boyd, the court affirmed a conviction on facts strikingly similar to those presented here. Probable cause to arrest the defendant was found based upon a tip from a reliable informant that defendant was involved in drug traffic from a house. Other information known to the police at the time included their observation of defendant and known drug users going in and out of the specified house, and the informant’s tip that he had seen contraband inside the house. The police procedures were also similar to those followed here. They obtained'a search warrant, went to the house, saw defendant leave, followed him for a considerable distance, and then stopped him and took him back to the house. The Eighth Circuit found probable cause to arrest at the time of the stop, and held the subsequent search to be lawful. Similarly, we find the stop, detention, and subsequent formal arrest were supported by probable cause. The search was therefore lawful and the trial court did not err in overruling the motion to suppress.

Defendant’s second point challenges the sufficiency of the evidence insofar as the conviction rests on a finding of his possession of the heroin inside the apartment. He maintains that the State did not prove 3959A Palm was his residence and that it failed to show he possessed any of the heroin found there.

Defendant’s point necessarily relies on the suppression of the heroin capsules found on his person. Because that evidence was properly admitted, it alone is sufficient to support the conviction. Any error in relying on the heroin found in the house would be harmless. For this reason we do not determine whether the evidence was sufficient to support a finding that defendant possessed the heroin in the house.

The judgment is affirmed.

DOWD, CRIST and CRANDALL, JJ., concur.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Jerry J. YOUNG, Appellant.
    No. WD 35446.
    Missouri Court of Appeals, Western District.
    Dec. 26, 1984.
    Motion For Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.
    Application to Transfer Denied April 2, 1985.
    James W. Fletcher, Public Defender, Sean D. O’Brien, Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KENNEDY, J.P., and DIXON and CLARK, JJ.
   ORDER

PER CURIAM:

Defendant appeals from convictions of one count of first degree assault, three counts of armed criminal action, and two counts of first degree robbery, pursuant to Sections 565.050, 571.015, and 569.020 RSMo 1978, respectively.

Affirmed. Rule 30.25(b).


author: CLEMENS, Senior Judge.

text:
    Wayne H. ROGERS, Appellant, v. STATE of Missouri, Respondent.
    No. 48247.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 31, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 13, 1985.
    Application to Transfer Denied April 2, 1985.
    John Putzel, Asst. Public Defender, Twenty-Second Judicial Circuit, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Thomas Carter, II, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Senior Judge.

Movant Wayne Rogers (hereinafter defendant) appeals the denial of his Rule 27.-26 motion. He challenges two concurrent eleven-year sentences for first degree robberies rendered upon his guilty pleas.

Defendant testified he pled guilty because his counsel had advised him that if he pled not guilty, as a persistent offender he could be sentenced to as much as 30 years in prison. Defendant did not call trial counsel to testify.

The motion court found against defendant’s claim trial counsel had told him what his punishment would be if he was found to be a persistent offender. The hearing court ruled defendant had failed to show his guilty plea was involuntary for any reason.

VanMoore v. State, 667 S.W.2d 470[1, 2] (Mo.App.1984) holds that on a Rule 27.26 hearing it is movant’s burden to show error by preponderance of the evidence, and a trial court may reject movant’s testimony even though uncontradicted. So it is here.

Affirmed.

DOWD, P.J., and CRIST, J., concur.


author: CRIST, Judge.

text:
    Charlotte Yvonne Manche ROMANN, Plaintiff/Appellant, v. Jessie V. Manche BUECKMANN, et al., Defendants/Respondents.
    No. 48487.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Dec. 31, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 13, 1985.
    Application to Transfer Denied April 2, 1985.

      Albert C. Lowes and W. Eric Cunningham, Lowes & Drusch, Cape Girardeau, for plaintiff/appellant.
    Huck & Kasten, Inc., Herbert A. Fasten, Jr., Ste. Genevieve, for defendants/respondents.
   CRIST, Judge.

Appeal from the dismissal of plaintiff’s four count petition designated “Will Contest with Action for Conspiracy to Defraud Decedent Against Certain Defendants”. We affirm in part, and reverse and remand in part.

Decedent William R. Manche died on March 7, 1983. He left four daughters, four granddaughters (the children of a fifth daughter who predeceased decedent) and appellant, a granddaughter from decedent’s predeceased son. Three documents: (1) a will dated March 15, 1968, (2) a first codicil dated May 18, 1976, and (3) a second codicil dated December 14, 1976 were admitted to probate April 14, 1983. Under the will dated March 15, 1968, respondent Jessie V. Bueckman, one of decedent’s daughters, received a 42-acre tract of land. A note for $3,000 owed decedent by respondent daughter Ray Anges LaRose and her husband Bernard was forgiven. The remainder of the estate was bequeathed primarily to decedent’s living children other than respondent Jessie Bueckman. Decedent’s son Herman Manche was appointed executor. The first codicil appointed respondent Jessie Bueckman executor in place of decedent’s son, who had died since execution of the will in 1968. The second codicil devised $1,000 to plaintiff Charlotte Romann, the daughter of the predeceased-son, (decedent’s granddaughter), and divided the remainder of the estate primarily among decedent’s four living daughters.

On September 14, appellant granddaughter filed a will contest in three counts with a separate fourth count alleging a conspiracy to defraud decedent. In the caption of her petition, appellant granddaughter divided the defendants into two groups. The first group was decedent’s four living children; the second group was the four children of the predeceased daughter, Bernard J. LaRose, and Earl and Phillip Bueckman, who apparently are Jessie V. Bueckman’s husband and son.

Count I of the petition, challenging the December, 1976 codicil was directed at the first group of defendants and the children of the predeceased daughter. Counts II and III, directed against the first group of defendants only, attacked the first codicil, dated May 18, 1976, and the will dated January 15, 1968, respectively. Bernard LaRose, though served with process as a defendant captioned in second group of defendants and a legatee in the will, was not named a defendant in any of the three counts. He was a named defendant in the conspiracy to defraud Count IV.

Count IV, entitled “Conspiracy to Defraud,” was directed against five specific defendants; two from the first group, Jessie V. Bueckman, and Ray Anges LaRose, and three from the second group, Bernard LaRose, and Earl and Phillip Bueckman.

The trial court, on defendant’s motion, dismissed Count IV on January 18, 1984, because of improper joinder of the three will and codicil contest counts with the conspiracy to defraud count. Defendants then moved to dismiss the remainder of the petition because of the failure to timely join Bernard J. LaRose as a defendant on those three counts.

Appellant granddaughter moved, on February 7, 1984, to set aside the dismissal of, and for leave to amend, Count IV of the petition; this motion was overruled on February 16, 1984. Defendants’ motion to dismiss Counts I, II and III was granted with prejudice on March 14, 1984.

In a will contest under § 473.083 RSMo 1978, the only question that may be considered is whether a certain document or documents is the last will and testament of decedent. The court has no jurisdiction to hear any other claims, and dismissal of Count IV was proper. Danforth v. Danforth, 663 S.W.2d 288, 294 (Mo.App.1983).

Appellant also asserts the trial court erred in dismissing the will contest, claiming that Bernard LaRose was not a necessary party, or, if he was a necessary party, he was sufficiently involved in the suit to avoid dismissal. Bernard LaRose was a named legatee under the will, which would forgive an indebtedness of $3,000 owed decedent by Bernard and his wife. As a legatee, he was a necessary party. Lambert v. Crone, 621 S.W.2d 59, 61 (Mo. App.1981). The statute governing will contests, § 473.083, RSMo 1978, requires all necessary parties be joined and served within a limited period of time. Doran v. Wurth, 475 S.W.2d 49, 51 (Mo.App. 1971).

In the instant case, it is conceded Bernard was named in the caption and in Count IV as a party defendant, and served with process. His wife, named as joint legatee with Bernard, was named and served as party defendant in the will contest. All other necessary parties were properly named and served with process. Bernard filed his answer as to Count IV, and joined in the motion to dismiss Count IV.

The purpose in making all persons mentioned in the will necessary parties is to guarantee all interests are before the count at one time. The reason for the time limit is to expedite probate matters. Bernard’s benefit from a valid will was freedom from debt on his and his wife’s joint note. Wife was a party. The note was before the court. His interest was before the court. He had actual notice. He was named in the caption, served with process and participated in the proceedings. Any violation of § 473.083 was of little consequence. The trial court had all necessary parties before it, and could, and should proceed to let appellant granddaughter have her day in court. Shaffer v. Cochenour, 569 S.W.2d 320 (Mo.App.1978) and Watson v. Watson, 562 S.W.2d 329 (Mo. banc 1978).

Appellant also attacks rulings on her objections to defendants’ interrogatories. We have considered the interrogatories and the objections and cannot conclude on this record, the trial court abused its wide discretion. State ex rel. Stockstrom v. Crandall, 584 S.W.2d 124, 126 (Mo.App.1979). The trial court may make further interrogatory orders as it shall deem proper.

The judgment as to Counts I, II and III is reversed and remanded for further proceedings. The judgments are in all other respects affirmed.

REINHARD, C.J., and DOWD and KA-ROHL, JJ., concur.


author: KAROHL, Judge.

text:
    Stephen STREBLER, Plaintiff-Appellant, v. HAMPTON METRO BANK, Defendant-Respondent.
    No. 48499.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 31, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 13, 1985.
    Application to Transfer Denied April 2, 1985.
    W.W. Sleater, Clayton, for plaintiff-appellant.
    Jay A. Summerville, St. Louis, for defendant-respondent.
   KAROHL, Judge.

Plaintiff appeals dismissal of four count petition for failure to state a cause of action. The original petition sought a mandatory injunction that defendant Bank deliver to plaintiff an automobile certificate of title. After the petition was filed defendant acquired a repossession title [§ 301.215, RSMo.1978] and sold the automobile. The amended petition adopted the original Count I and added: Count II to set aside the repossession title and sale and return the automobile to plaintiff and for damages; Count III, as an alternative to Counts I and II, for actual and punitive damages for wrongful repossession of the automobile; and, Count IV for conversion. The motion to dismiss based on § 301.-210(4), RSMo.1978, contended that plaintiff did not allege that he was the owner of the automobile and could not have been the owner or have a legally recognizable interest in the automobile because at the time of transfer he did not acquire the endorsed certificate of title.

The automobile in question is a 1977 Oldsmobile. Prior to this suit, the title owner was J-B Enterprises, Inc. [J-B] and defendant Bank was a lien holder on the title. On April 10, 1980 plaintiff traded his Toyota automobile in exchange for the Oldsmobile. On the same day J-B tendered a pay-off draft to defendant Bank to satisfy the balance due and obtain a lien release. The Bank marked the title “Paid and released.” However, the pay-off draft failed to clear so the title and draft were returned to defendant Bank. Plaintiff informed the bank he had the Oldsmobile and of his purchase agreement. While he was attempting to negotiate a direct pay-off with the bank the bank repossessed the car. On January 15, 1982 the Bank notified J-B that the new pay-off would be $743.44 plus $150.00 repossession charges for a total of $893.44. Plaintiff took that amount in cash to the bank but the bank refused to accept the payment claiming the car was also security for another loan to J-B which had filed a petition in bankruptcy. The bank obtained a repossession title and sold the car. Plaintiff alleges that the repossession and resale were wrongful and fraudulent. Defendant alleges that the initial sale from J-B to plaintiff was void under § 301.210(4), RSMo.1978.

We review dismissal for failure to state a cause of action within the legal framework noted in Gaines v. Monsanto Co., 655 S.W.2d 568, 570 (Mo.App.1983).

In determining the sufficiency of a petition challenged by a motion to dismiss we give the petition its broadest intendment, treat all facts alleged as true, and construe the allegations favorably to plaintiffs to determine whether they invoke principles of substantive law. (citation omitted).
The trial court’s ruling on a motion to dismiss for failure to state a claim must be construed liberally and favorably to plaintiffs, giving them the benefit of all inferences fairly deducible from the facts stated therein, (citation omitted). The facts alleged in the petition should be assumed to be true, (citation omitted). The dismissal will be upheld only if plaintiff could not recover on any theory pleaded, (citation omitted).

The trial court dismissed without comment. We therefore look to the motion to dismiss and find that the sole ground on which defendant relied was that plaintiff’s failure to comply with § 301.210(4), RSMo. 1978, by not getting a contemporaneous transfer of the certificate of title at the time of purchase denied plaintiff’s standing to state a cause of action.

Our Supreme Court in State v. Glenn, 423 S.W.2d 770, 774 (Mo.1968) recognized § 301.210 to be

a special statute, a police regulation ‘of the highest type’ with which ‘absolute technical compliance’ is required, the provisions of which are to be ‘rigidly enforced’ and as to which there are ‘no exceptions to conform to intentions.’ (citation omitted). The statute is ‘drastic, mandatory, and intended as a police regulation in the interest of the public welfare to prevent traffic in stolen vehicles.’

423 S.W.2d at 774. We observe at the outset that resolution of the present case which involves a dispute between the plaintiff who has agreed to purchase a motor vehicle and the lien holder will neither hinder or promote the purpose of the statute. J-B attempted to transfer the title to plaintiff but was unable to do so.

Defendant Bank maintains that the sale of the Oldsmobile by J-B without passing a certificate of title and assignment thereof was fraudulent and void. The trial court concluded that plaintiff’s agreement to purchase the motor vehicle from J-B was not enforcible by injunction or at law because the statute deprives plaintiff of standing to seek such relief. We find that this conclusion is unwarranted and that the statute did not require the dismissal.

J-B as the certificate owner of the Oldsmobile had a legal right to transfer possession pending completion of the sale. Allstate Insurance Company v. Hartford Accident & Indemnity Company, 311 S.W.2d 41, 47 (Mo.App.1958). In Allstate the court described the transaction as an executory contract to be completed in the future. The court refused to presume that the parties intended to do an illegal and unlawful act. The court noted that although the seller did not have to deliver the automobile to the buyer until the sale had been consummated in fact and in law, it did so in the exercise of a right and power which it had the right to give or withhold. The optional delivery under the circumstances carried with it, at the instant of the delivery, the implied permission to use and operate the automobile. Id. at 47.

The enforcibility of a contact to sell an automobile in the future was recognized in Smith v. G.F.C. Corp., 255 S.W.2d 69, 70 (Mo.App.1953) and in Cantrell v. Sheppard, 247 S.W.2d 872, 875 (Mo.App.1952). These cases hold that the failure to pass the certificate of title between the parties at the time of the agreement creates an executory contract which may be repudiated by the parties. However, that did not occur in the present case. Both J-B as seller and plaintiff as buyer tendered to defendant Bank the necessary pay-off of the balance due on the loan and both requested that defendant Bank produce the certificate of title. We need not decide whether or not the contract purchaser acquires a special property interest, see Wilks v. Stone, 339 S.W.2d 590, 594 (Mo. App.1960) or, as alleged in the petition, an equitable interest because plaintiff did acquire the right to compel the assignment of the certificate of title. See Smith v. G.F. C. Corp., Cantrell v. Sheppard, and Matter of Schalk, 592 F.2d 993, 996 (8th Cir.1979). We therefore conclude that plaintiff stated a cause of action for a mandatory injunction for the delivery of the certificate of title or in the alternative for damages. See Hadley v. Smith, 268 S.W.2d 444, 450 (Mo. App.1954). Plaintiff’s cause of action did not depend upon present possession of title and standing arises from his contractual rights which were acknowledged by J-B.

Count IV of the petition, which sounds in conversion, states a cause of action since ownership or title is not required. The cause of action for conversion may be stated by one in lawful possession with or without ownership. Brede Decorating, Inc. v. Jefferson Bank and Trust Company, 345 S.W.2d 156, 164 (Mo.1961).

None of the authorities defendant Bank relies on apply to the present facts where the cause of action depends upon the completion of the contract of sale at a future period nor do they hold that the wrongful withholding of the certificate of title to complete the transaction in accord with the statute should defeat a cause of action on the contract. Both J-B and the plaintiff were attempting to comply with the statute and the actions and conduct of defendant Bank, as alleged in the petition, were directed to preventing compliance. It is the rights under the contract which constitute the subject matter of the petition and not rights depending upon a completed lawful sale of a motor vehicle. Accordingly we reverse and remand.

PUDLOWSKI, P.J., and GAERTNER, J., concur.

      . A garnishment on J-B’s account caused the problem. A further complication created by J-B’s bankruptcy was removed when the trustee in that bankruptcy disclaimed any interest in the Oldsmobile.

      . See Allstate Insurance Co. v. Northwestern National Insurance Co., 581 S.W.2d 596 (Mo.App. 1979); Case v. Universal Underwriters Insurance Co., 534 S.W.2d 635 (Mo.App.1976); Robertson v. Central Manufacturers’ Mutual Insurance Co., 239 Mo.App. 1169, 207 S.W.2d 59 (1947).


text:
    William MARBERRY, Appellant, v. STATE of Missouri, Respondent.
    No. 48538.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 31, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 13, 1985.
    Application to Transfer Denied April 2, 1985.
    Lenzie L. Leftridge, Jr., Flat River, for appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Senior Judge.

Movant William Marberry (hereafter “defendant”) appeals the summary denial of his Rule 27.26 motion.

Defendant had been jury-convicted of armed robbery and burglary and sentenced to consecutive ten and five year prison terms. Affirmed on appeal; State v. Marberry, 639 S.W.2d 290 (Mo.App.1982).

Defendant now dually challenges the summary denial of his motion. He first contends trial counsel “failed to call witnesses requested by movant”. Second, trial counsel “failed to properly interview and investigate the witnesses to be called by the state”. We rule each point in order.

In the motion court’s findings and conclusion it held trial counsel’s decision not to call witnesses constituted a permissible trial tactic, and also defendant’s motion failed to allege facts as to what helpful evidence his counsel could have uncovered by interviewing the state’s intended witnesses. These in order.

Defendant’s broad point trial counsel failed to call witnesses is patently inadequate. As ruled in Shelley v. State, 655 S.W.2d 126[4] (Mo.App.1983).

“Movant did not allege what evidence would have been presented or to what witnesses would have testified. Therefore, the trial court did not err in denying movant an evidentiary hearing.”

See also Page v. State, 632 S.W.2d 293[2] (Mo.App.1982).

Also inadequate is defendant’s point his counsel failed to interview prospective state witnesses. As ruled in Rice v. State, 585 S.W.2d 488[1—3] (Mo. banc 1979):

“The claim that an attorney’s investigation of a case is inadequate must allege what specific information the attorney failed to discover, that reasonable investigation would have disclosed that information and that the information would have aided or improved appellant’s position.”

See also Tollison v. State, 556 S.W.2d 455[1, 2] (Mo.App.1977).

We hold defendant has failed to meet his burden to show the motion court’s ruling was clearly erroneous. Rule 27.26(j).

Affirmed.

DOWD, P.J., and CRIST, J., concur.


text:
    STATE of Missouri, Respondent, v. Anthony Lamont ALLEN, Appellant.
    No. 48629.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 8, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 28, 1985.
    Application to Transfer Denied April 2, 1985.
    Debra Buie Arnold, Public Defender, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   ORDER

PER CURIAM:

Appeal from convictions of two counts of robbery in the first degree, § 569.020, RSMo 1978; two counts of kidnapping, § 565.110, RSMo 1978; and one count of armed criminal action, § 571.015, RSMo 1978 for which he was sentenced to imprisonment for a term of ten (10) years on each of the robbery counts, said sentences to run concurrently; five (5) years on each of the kidnapping counts, said sentences to run consecutively with the sentences imposed on the robbery counts; and three (3) years on the armed criminal action count, said sentence to run concurrently with the sentences imposed on the robbery and kidnapping counts, for a total of fifteen (15) years.

Affirmed. Rule 30.25(b)


text:
    STATE of Missouri, Respondent, v. William D. GRAY, Appellant.
    No. WD 35438.
    Missouri Court of Appeals, Western District.
    Jan. 8, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.
    Application to Transfer Denied April 2, 1985.
    James W. Fletcher, Public Defender, Lee M. Nation, Sp. Asst. Public Defender, Kansas City, for appellant.

      John Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before PRITCHARD, P.J., and SHAN-GLER and BERREY, JJ.
   ORDER

PER CURIAM:

Appeal from jury trial conviction for burglary in the second degree [§ 569.170 RSMo, 1978] and stealing [§ 570.030, RSMo 1978] and consecutive sentences of four years and three years, respectively.

Affirmed. Rule 30.25(b).


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. William T. JONES, Appellant.
    No. WD 35551.
    Missouri Court of Appeals, Western District.
    Jan. 15, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.
    Application to Transfer Denied April 2, 1985.
    James W. Fletcher, Public Defender, Sean D. O’Brien, Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before PRITCHARD, P.J., and SHAN-GLER and BERREY, JJ.
   PER CURIAM.

Appeal from conviction for first degree robbery, Section 569.020, RSMo 1978, and sentence of twenty years imprisonment as a “dangerous offender”, Section 558.016.4, RSMo Supp.1983.

Judgment affirmed. Rule 30.25(b).


text:
    Ernest R. FUNK, Plaintiff-Respondent, v. Rosa M. BLAKE, Defendant-Appellant.
    No. WD 35690.
    Missouri Court of Appeals, Western District.
    Jan. 15, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.
    Application to Transfer Denied April 2, 1985.
    George Spencer Miller, Miller & Dough-erty, Kansas City, for defendant-appellant.
    Michael Paul Harris, St. Joseph, for plaintiff-respondent.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   ORDER

PER CURIAM.

In this jury tried case a verdict was returned in favor of defendant and against plaintiff on the latter’s claim for personal injuries and in favor of defendant and against plaintiff on defendant’s counterclaim for property damage in the amount of $1,100.00. Plaintiff’s motion for new trial on the basis of instructional errors regarding both plaintiffs claim for personal injuries and defendant’s counterclaim for property damage was sustained and the trial court ordered a new trial on both claims as to all issues, i.e., liability and damages. Defendant appealed.

Order granting a new trial on both claims and all issues is affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. John D. CARTER, Jr., Appellant.
    No. WD 35880.
    Missouri Court of Appeals, Western District.
    Jan. 16, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.
    Application to Transfer Denied April 2, 1985.
    James W. Fletcher, Public Defender, Sean D. O’Brien, Asst. Public Defender, Kansas City, for appellant.
    Albert A. Riederer, Pros. Atty., Cathy Starke, Asst. Pros. Atty., Kansas City, for respondent.
    Before PRITCHARD, P.J., and SHAN-GLER and DIXON, JJ.
   ORDER

PER CURIAM.

Appeal from jury trial conviction for assault in the first degree with a deadly weapon, Section 565.050, RSMo 1978, and sentence of twenty years imprisonment.

Affirmed. Rule 30.25(b).


author: TITUS, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert L. PERRY, Defendant-Appellant.
    No. 13751.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 21, 1985.
    Motion for Rehearing or to Transfer to Supreme Court Denied Feb. 5, 1985.
    Application to Transfer Denied April 2, 1985.

      John D. Ashcroft, Atty. Gen., Thomas Carter, II, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    L.R. Magee, Hines & Magee, Kansas City, for defendant-appellant.
   TITUS, Presiding Judge.

In a two-count information filed in the Circuit Court of Hickory County, defendant was charged (I) with burglary in the second degree, § 569.170 , and (II) stealing, § 570.030. After the cause had been transferred to Dallas County it was tried and the jury returned verdicts finding defendant not guilty of the burglary charge but guilty of stealing and fixed punishment at imprisonment in the county jail for a term of six months. Defendant appealed.

Carey Breshears, a Buckner resident and owner of a deer rifle, went to the Weau-bleau home of his father, Wilford Bresh-ears, to observe the opening day of deer season on Saturday, November 12, 1983. He did not use the gun on Sunday, November 13, 1983, but noticed it “sitting beside the television” in his father’s residence when he returned there “that evening, right after dark.” The next morning, Monday, November 14,1983, he arose early and discovered the rifle missing near 5 a.m. The testimony of the father, Wilford, corroborates that of his son who reported the matter to the sheriff of Hickory County and gave the official the serial number of the rifle.

The buyer for a Kansas City pawnshop recounted that defendant came into the store November 16, 1983, and pawned the rifle in question for $50. The rifle was redeemed by a Mr. Simmons November 23, 1983, upon payment of the loan, plus interest, and return of the pawn ticket. Mr. Simmons was not identified at trial but the redeemer had the same Kansas City address as that previously given by defendant. In compliance with Kansas City ordinances, the information concerning the pawning of the rifle was given to the police of that city.

On December 5, 1983, a Kansas City detective was, via computer, comparing pawn reports with items reported stolen when he made a match with the rifle in question. He called the loan company where the rifle had been pawned only to find it had been redeemed November 23, 1983. Armed with information previously acquired, the detective contacted defendant at the latter’s home December 9, 1983. When defendant learned of the officer’s mission he produced the gun which, when examined by the officer, bore the same serial number, etc., as the gun pawned and reported taken from the Breshears residence. Defendant then went with the detective to the latter’s office and gave him a signed written statement as to how he had come into possession of the rifle. The statement was not used in the trial of the case. Subsequent thereto, the detective accompanied the Hickory County sheriff, who had an arrest warrant, to defendant’s home where the sheriff arrested defendant.

Carey Breshears and his father, Wilford, had known the defendant since he and Carey were “younger kids” and while defendant “was living with his grandparents right up the creek about a half a mile” from the home of the senior Breshears. Wilford testified that the last time defendant had been in his home to his knowledge was “about four years ago.” Before November 1983, Carey had not seen defendant for “two and a half years, something like that.” No testifying witness, including the two Breshears, had seen defendant in, at or near the residence of the senior Breshears or even in the general vicinity thereof during November 1983. Defendant offered no testimony.

Defendant’s lone point on appeal: “The trial court erred in overruling defendant’s motions for acquittal made at the close of the state’s case in chief, at the close of all of the evidence and in his post trial motion because the state failed to prove, beyond a reasonable doubt all of the elements of the crime of stealing, in that there was no evidence in the whole record that the defendant was in Hickory County, Missouri on or about November 13, 1983.”

“In reviewing the sufficiency of the evidence, even where wholly circumstantial, the evidence is viewed in the light most favorable to the state. All contrary evidence and inferences must be disregarded. ... It is not the duty of this court to weigh the evidence, but to determine whether there was substantial evidence to support the verdict.” State v. Anderson, 671 S.W.2d 383, 384[1, 2] (Mo.App.1984).

In the light most favorable to the state, the rifle was taken without permission from the residence of the senior Bresh-ears either “right after dark” the evening of November 13, 1983, or before 5 a.m. November 14, 1983. Two or three days thereafter the rifle was in defendant’s possession in Kansas City when he pawned it with a loan company on November 16, 1983. The rifle was redeemed from the pawnshop November 23, 1983, and was again found in defendant’s possession December 9, 1983, when he was contacted by the detective. Possession of recently stolen property supports the inference of guilt of stealing, State v. Politte, 654 S.W.2d 138, 139[2] (Mo.App.1983), and such evidence alone is sufficient to support a conviction. State v. Williams, 672 S.W.2d 80, 82[5] (Mo.App.1983). That defendant was in possession of recently stolen property cannot be disputed when it was shown that he possessed and pawned the pilfered rifle as his own just two or three days after it was stolen. Cf. State v. Anderson, supra, 671 S.W.2d at 385, where defendant’s possession of the stolen goods was not discovered until 18 days after the crime was committed.

Judgment affirmed.

FLANIGAN and GREENE, JJ., concur.

      . Statutory references are to V.A.M.S.


author: GREENE, Judge.

text:
    Lorn INGRAM, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 13649.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 28, 1985.
    Motion for Rehearing or to Transfer to Supreme Court Denied Feb. 14, 1985.
    Application to Transfer Denied April 2, 1985.

      Holly G. Simons, Columbia, for movant-appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   GREENE, Judge.

Lorn Ingram was jury-convicted of capital murder and sentenced to life imprisonment without possibility of parole for fifty years. The conviction was affirmed. State v. Ingram, 607 S.W.2d 438 (Mo.1980).

The substantive facts outlined in that opinion, sufficient to sustain the conviction, are that Ingram shot and killed a companion, Joe Trent, following an argument between the two, after a day spent drinking beer, running errands, and other pursuits.

Ingram then filed a motion to vacate his conviction. Rule 27.26. Claims raised in the motion relative to this appeal were that trial counsel was ineffective because he did not 1) “argue the defense of intoxication and by not submitting an instruction to that effect,” and 2) investigate the possible defense of not guilty by reason of mental disease or defect in a timely manner. The trial court held an evidentiary hearing on the motion, after which it entered findings of fact, conclusions of law, and a judgment denying post-conviction relief.

In its findings, the trial court stated that Ingram, at the hearing, produced no credible evidence, as is required by Rule 27.-26(f), to show that at the time of the killing he was intoxicated to the degree that he suffered from diminished mental capacity, which would have, at time of trial, negated the existence of the mental state required for a capital murder conviction. § 562.-076. The trial court further found that Ingram produced no credible evidence at the hearing to show that he was suffering from any mental disease or defect at the time of the shooting. In its conclusions of law, the trial court found that Ingram was effectively represented at trial by competent counsel.

A thorough review of the record convinces us that the judgment of the trial court denying the motion to vacate was based on findings of fact and conclusions of law that were not clearly erroneous. Rule 27.26(j). This being so, and after determining that no error of law occurred, and that an extended opinion would have no precedential value, the trial court’s judgment is affirmed. Rule 84.16(b).

TITUS, P.J., and FLANIGAN, J., concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1978, V.A.M.S.

      . This statute, effective January 1, 1979, was amended by the legislature effective October 1, 1984, to restore the long entrenched Missouri rule, uprooted in 1979, that voluntary intoxication is not admissible to negate the specific intent element of a crime. However, it was in effect at the time of Ingram’s trial.


text:
    Charles J. McMULLIN, Plaintiff-Appellant-Cross-Respondent, v. ESTATE OF Joseph J. GANGLOFF, Deceased, Robert R. Borgers, Executor and Personal Representative, Defendant-Respondent-Cross-Appellant.
    Nos. 48084, 48176.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 29, 1985.
    Charles J. MeMullin, St. Louis, for plaintiff-appellant-cross-respondent.

      Ted F. Frapolli, St. Louis, for defendant-respondent-cross-appellant.
   ORDER

PER CURIAM.

This is an appeal from an award of attorney’s fees against an estate for legal services rendered to the decedent during his lifetime. The only error found by this court was mathematical. The judgment should be $16,372.50, instead of $16,300.00. The judgment is modified by adding $72.50 to the amount of the judgment and as modified, affirmed in compliance with Rule 84.16(b).


text:
    Glen Edward ANDERSON, Plaintiff-Respondent-Appellant, v. Joe CHILDERS, d/b/a Joe’s Tire Shops, Defendant-Appellant, and Iona Darlene Childers, d/b/a Joe’s Tire Shops, Defendant-Respondent.
    Nos. 13627, 13629.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 30, 1985.
    Motion for Rehearing or to Transfer to Supreme Court Denied Feb. 14, 1985.
    Application to Transfer Denied April 2, 1985.

      David F. Sullivan, Hulston, Jones & Sullivan, Springfield, for plaintiff-respondent-appellant.
    Loren R. Honecker, Sherwood, Honecker & Bender, Springfield, for defendants-appellant and respondent.
   GREENE, Judge.

Plaintiff, Glen Edward Anderson, sued Joe Childers and Iona Darlene Childers (Darlene), d/b/a Joe’s Tire Shops. The petition alleged that Joe and Darlene, who were husband and wife, were the owners and operators of the tire shop, and that, because of their negligence, Anderson, an employee of the tire shop, suffered a severe injury to his left eye. The injury occurred when Anderson, while using an ice pick to puncture an air bubble in a separation between the rubber and cord on a used tire, was struck in the eye by the pick. The ice pick penetrated his eyeball, necessitating surgery to attempt to repair the damage.

Anderson alleged Joe and Darlene had not instructed him how to puncture the air bubbles with the ice pick in a safe manner, and failed to provide him with safety goggles to use while he was performing dangerous duties.

A jury returned a verdict against Joe and Darlene in the sum of $200,000. After the jury was discharged, evidence was heard concerning $1,500 paid to Anderson after his injury, for which he had performed no services, and payments of a doctor bill in the sum of $670 and a hospital bill in the sum of $1,463.34 which were incurred by Anderson for treatment of his injury. All of the payments had been made by Joe Childers. The trial judge applied these sums, which amounted to $3,633.34, as credits against the jury verdict amount and, on November 4, 1983, entered judgment for Anderson and against Joe and Darlene Childers in the sum of $196,366.66.

Later, on motion by Darlene, the trial court set aside the judgment against Darlene, and entered judgment in her favor, notwithstanding the verdict. It also overruled Joe Childers’ motion for new trial which, among other things, alleged exces-siveness of verdict.

Anderson appeals the trial court’s action in entering judgment for Darlene notwithstanding the jury verdict. Joe Childers appeals, claiming instructional error, and also that the verdict was so excessive that it reflected bias and prejudice of the jury against the defendants.

In his letter memorandum advising the attorneys for the parties of his rulings, the trial judge stated that Anderson had failed to prove Darlene had a “legal interest in the business,” and, therefore, could not be held liable as a co-owner of the business. He also observed that Anderson’s eye injury was serious and permanent, and that the verdict was not excessive.

The main thrust of Anderson’s appeal is that the trial court erred in setting aside the jury verdict in Darlene’s favor and in entering judgment for her, notwithstanding the verdict, because 1) such ruling was against the weight of the evidence, 2) the trial court did not give Anderson the benefit of all favorable inferences to be derived from the evidence, and 3) the trial court considered evidence favorable to defendants in arriving at its conclusion.

In our review of this issue, we view the evidence in the light most favorable to Anderson, giving him the benefit of all reasonable inferences to be derived from the evidence, and disregarding any contrary evidence. Dilts v. Lynch, 655 S.W.2d 118, 119 (Mo.App.1983). We are mindful that a motion for judgment notwithstanding the verdict presents the same question as a motion for a directed verdict before judgment, which is, did plaintiff make a submissible case on the issue? If he did, the sustaining of such a motion is error. Dockery v. Mannisi, 636 S.W.2d 372, 376 (Mo.App.1982).

The following evidence favorable to Anderson was introduced at trial:

1) Darlene worked at the tire shop on a day-by-day basis, and was not an employee of the business, as she was not paid a salary or hourly wage.

2) Darlene was a joint owner with Joe of the real estate upon which the building housing the tire business was located.

3) Joe and Darlene had started the business together in 1972. The tire shop sold new and used tires, and repaired used tires. They had worked together in the business.

4) Darlene had signature authority on the business checking account, and sometimes wrote checks on that account.

5) Darlene co-signed notes and other loan documents with Joe when it was necessary to borrow money for the business.

6) Employee Rick Young, in the absence of his supervisor, Ron Potts, took orders from Darlene.

7) Darlene had evaluated the job performance of Anderson, decided it was unsatisfactory, and had discussed such conclusion with Potts before Anderson was injured.

8) After Anderson was injured, Darlene told her husband to take Anderson to the same doctor “that they (meaning Joe and Darlene) used before.”

9) After Anderson was injured and filed suit, all of the assets of the tire business were transferred to a new corporation known as Joe’s Tire Shop, Inc. Joe and Darlene signed the Articles of Incorporation as incorporators, and were listed as the only shareholders of the corporation. A legitimate inference from this course of action is that Joe and Darlene were attempting to immunize their assets from attachment or garnishment by Anderson if he prevailed in his lawsuit against them.

While it is true that some of this evidence, standing alone, would not support an inference that Joe and Darlene were co-owners of the business, such as the joint business bank account, see First National Bank, Paragould, Arkansas v. South Side National Bank, 644 S.W.2d 377, 379 (Mo. App.1982), and the fact that Darlene worked in the tire shop without being paid wages or a salary, see Shawneetown Feed and Seed Co. v. Ford, 468 S.W.2d 54, 56 (Mo.App.1971), the sum total of the evidence, in our opinion, made a submissible ease as to whether Darlene was a co-owner of the tire shop. The jury decided that she was, and their verdict on that issue is supported by substantial evidence, and is not against the greater weight of the evidence. The trial court erred in setting aside the jury verdict against Darlene, and in entering judgment in her favor, notwithstanding the jury verdict.

The first contention of Joe Childers in his appeal is that the trial court erred in submitting plaintiffs verdict directing instruction because one of the disjunctive submissions of the instruction (failure to establish a work rule requiring employees to wear safety glasses while performing hazardous tasks) was not supported by substantial evidence. Childers did not raise this issue at trial, or in his motion for new trial. The point was not preserved for appellate review. Kinser v. Elkadi, 674 S.W.2d 226, 231 (Mo.App.1984).

In his remaining point, Childers maintains that the $200,000 verdict was so grossly excessive as to indicate that it was the result of bias and prejudice on the part of the jury. A jury and a trial judge are in a much better position than an appellate court to determine what amount of money is just compensation for an injured plaintiff, McKinley v. Vize, 563 S.W.2d 505, 514 (Mo.App.1978), and, as a result of that fact, appellate courts will not rule a jury verdict upheld by the trial court as excessive, unless it is so grossly excessive as to offend all sense of right. Smith v. Whalen, 613 S.W.2d 868, 871 (Mo.App.1981). Such is certainly not the case here.

The evidence is undisputed that Anderson suffered a severe puncture wound injury to his left eyeball from the ice pick injury. He testified that he suffered severe pain from the injury, and that his eyesight is much worse after the accident than it was before. He had surgery by one specialist to repair the puncture wound, and later had surgery by another specialist to repair a detached retina. While that doctor found indicia of some retinal problem in the eye independent of, and prior to, the ice pick injury, he testified that the detached retina problem was consistent with the ice pick injury, and that, in his opinion, the ice pick injury aggravated any pre-existent retinal detachment problem.

In a case of similar injury, a jury returned a verdict of $750,000, which was upheld by the appellate court. Bender v. Burlington-Northern R.R. Co., 654 S.W.2d 194 (Mo.App.1983). Considering all of the evidence, we do not feel the verdict was excessive. The point is denied.

The ruling of the trial court setting aside judgment against defendant Iona Darlene Childers in the sum of $196,366.66 and entering judgment in her favor is reversed and set aside, and the trial court’s judgment of November 4, 1983, entering judgment in favor of plaintiff Glen Edward Anderson and against defendants Joe Childers and Iona Darlene Childers in the sum of $196,366.66 is reinstated.

TITUS, P.J., and FLANIGAN, J., concur.

      . Joe Childers had elected not to carry Workers’ Compensation insurance, thus giving Anderson the right to bring a tort action against Joe and Darlene.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Bill REED, Defendant-Appellant.
    No. 13701.
    Missouri Court of Appeals, Southern District, Division Three.
    Feb. 1, 1985.
    Motion for Rehearing or to Transfer to Supreme Court Denied Feb. 13, 1985.
    Application to Transfer Denied April 2, 1985.
    John D. Ashcroft, Atty. Gen., Mark A. Richardson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Lawrence N. Koeln, Centerville, for defendant-appellant.
   GREENE, Judge.

Defendant, Bill Reed, was charged by information with the class C felony of second degree burglary in violation of § 569.-170-1, RSMo 1978. The substance of the charge was that Reed unlawfully entered a building owned by Gerald Massey for the purpose of committing the crime of stealing. After waiver of jury trial, Reed was tried by the court, found guilty, and sentenced to two years’ imprisonment in the custody of the Missouri Department of Corrections.

On appeal, Reed raises only one issue, claiming that the evidence was insufficient to sustain the conviction. In our review, we view the evidence in the light most favorable to the state, disregarding all contrary evidence and inferences to be drawn therefrom. State v. Anderson, 671 S.W.2d 383, 384 (Mo.App.1984). Where, as here, the evidence of defendant’s agency in connection with the crime charged is entirely circumstantial, the facts and circumstances upon which the state relies must be consistent with defendant’s guilt and inconsistent with any reasonable theory of his innocence. State v. Anderson, supra, at 384. In viewing such facts and circumstances, we keep in mind that a conviction based on circumstantial evidence may rest on cumulative, interdependent facts, no one of which alone would create more than a suspicion of guilt. State v. Jackson, 519 S.W.2d 551, 557 (Mo.App.1975).

Viewed in the light of those legal principles set out above, the evidence introduced at trial was that Ewell Polk, a resident of Ellington, Missouri, had leased from Gerald Massey a cabin located on Trail 25 on the Current River in Shannon County. Among the furniture in the cabin was a large ivory-colored gas refrigerator, which was about seven feet high and four feet wide. Polk had been at the cabin on July 19,1983. When he left, he closed, but did not lock, the front door.

In the early evening hours of July 21, Kenneth Bowles, an area resident, saw a light tan, or brown, older model Ford pickup truck coming off Macy Ridge Road onto Blue Springs Road. The intersection of these roads was two or three miles from the Massey cabin and intersected with a road that went to the cabin. In the back of the pickup truck was a large white or ivory-colored refrigerator. Bowles was suspicious, as he knew that several cabins in the area had been recently burglarized, and followed the truck.

The truck turned left onto Highway 106, traveling west about a quarter of a mile, then turned back north on a side road and stopped. When Bowles saw the door on the driver’s side of the pickup start to open, he left the scene to go home and alert neighbors and law enforcement officers of a possible burglary. He drove back to Highway 106 and turned east toward his home. Within a short distance, he met Phil Moss, the Reynolds County assessor. Bowles stopped his vehicle in the eastbound lane of traffic, and Moss stopped his pickup in the west bound lane, thus blocking the road. While Bowles was telling Moss what he had just observed, the light brown pickup previously seen by Bowles came upon the scene from the west and stopped behind the Bowles truck. Reed was seated on the passenger side, and a friend of Reed’s, George Lyon, was driving.

Upon being asked where they got the refrigerator in the back of their truck, Lyon replied that it was none of Bowles’ and Moss’ “damned business.” Bowles and Moss said it was their business since several cabins in the area had been broken into in the past few months. Lyon then said he had found the refrigerator in a dump. There was no dump in the vicinity. When asked by Moss what they were doing in the area, Lyon said, “We’re just out running around.” Lyon then drove his pickup around the Bowles vehicle and left the scene.

Bowles went home and called law enforcement officers, as well as people who occupied cabins on the river, including Polk, and told them what he and Moss had seen. Polk came to the Bowles home and the two of them went to the cabin where they found that the front door had been taken off its hinges and laid aside. The refrigerator was gone. It was never recovered. Reed and Lyon were neighbors, and lived approximately 25 miles from the scene of the burglary.

This evidence, and the reasonable inferences to be drawn from it, establishes the following conclusions.

1) The cabin was unlawfully entered for the purpose of stealing.

2) A refrigerator was stolen from the cabin.

3) When confronted in the area where the burglary occurred, Lyon and Reed, who were friends and neighbors and lived approximately 25 miles from the crime scene area, offered no reasonable explanation as to why they were in the remote secluded area as darkness was approaching.

4) When spotted by Bowles, the truck driven by Lyon took evasive action to avoid closer scrutiny by Bowles.

5) A refrigerator, matching the description of the one stolen from the cabin, was in the pickup driven by Lyon, and was the refrigerator stolen from the cabin.

6) The refrigerator, by reason of its size and weight, could not have been taken out of the cabin and placed in the pickup by one man.

7) Since there was no one other than Reed in the pickup driven by Lyon, Reed assisted Lyon in entering the cabin, stealing the refrigerator, and putting it in the truck.

8) Reed, as an aider and abettor, was guilty as charged. ' The evidence was sufficient to sustain the finding of guilty.

Judgment affirmed.

CROW, P.J., and TITUS and FLANI-GAN, JJ., concur.