author: PRITCHARD, Chief Judge.

text:
    Lula Mae SCOTT, Appellant, v. TWIN CITY STATE BANK, Respondent.
    No. KCD 27035.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.
    Motion for Rehearing and/or Transfer Denied June 1, 1976.
    Application to Transfer Denied July 12, 1976.

      Raymond Peltzman, Kansas City, for appellant.
    H. Michael Coburn, Kansas City, for respondent; Gage, Tucker, Hodges, Kreamer, Kelly & Varner, Kansas City, of counsel.
    Before DIXON, P. J., PRITCHARD, C. J. and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

Appellant’s three count petition sounds in conversion of a repossessed automobile and amounts due as refund premium on a can-celled automobile physical damage policy. She asked for a total of $1,845.60 actual and $10,500.00 punitive damages.

Respondent’s motion for summary judgment set forth that there was no genuine issue as to any material fact relevant to appellant’s claims under her petition because of unanswered requests for admissions which are deemed admitted under Rule 59.01(a). The summary judgment was sustained by the court. Certainly, if the unanswered requests for admissions dispose of all issues raised by the pleadings, the summary judgment was proper and appellant’s claims to relief are foreclosed. Manpower, Inc. v. Area Development Corporation, 440 S.W.2d 515, 518[5] (Mo.App.1969); Metropolitan St. Louis Sewer Dist. v. Zykan, 495 S.W.2d 643, 656[16] (Mo.1973).

Appellant’s Count I alleges that about June 9, 1971, she purchased from Miller Pontiac Company a 1966 Pontiac for $1,495.00, paying $375.00 down, leaving $1,120.00 principal to which $103.00 was added for physical damage insurance, and $202.24 finance charge. One installment payment of $75.00 was due June 25, 1971, leaving 24 monthly installments of $56.26 each. Respondent obtained a physical damage policy but on July 1, 1971, it was can-celled and $95.00 of the premium was refunded to respondent. Appellant further alleged that she demanded the $95.00 refund of respondent so she could obtain the policy, and respondent refused to comply with the demand, but appellant is foreclosed on that allegation because she is deemed to have admitted to the contrary. It is, however, further alleged that about September 16, 1971, respondent notified appellant that it was purchasing insurance coverage on the car for one year; that appellant relied upon that statement and believed that respondent had obtained insurance but it failed to do so; and “on or about the 21st day of January, 1972, without any prior notice to plaintiff, defendant repossessed said automobile from the possession of the plaintiff because it claimed that there was no insurance coverage on said motor vehicle, and defendant demanded payment from plaintiff in full of the entire balance then due upon said contract; that on February 4, 1972, defendant notified plaintiff that it had credited $45.60 of the aforesaid insurance refund toward the repossession charges which it claimed had accrued, and that it was applying the remaining $49.40 on the principal balance of the loan; that on February 7, 1972, after plaintiff had obtained a policy of insurance upon said automobile effective January 25, 1972, to April 25, 1972, defendant returned possession of said automobile to the plaintiff.” These allegations were expressly admitted in respondent’s answer.

Respondent’s letter of September 16, 1971, in evidence by way of the requests for admissions, advised appellant that it was “raising your installment loan payments to $75 for the next nine months. We are purchasing automobile collision and comprehensive insurance at a cost of $255 for one year. Please change your records to indicate that the next payment due on September 25th should be in the amount of $75. You still have the option of getting your insurance somewhere else and I am sure that you could get it cheaper if you tried; however, we cannot let this car go uninsured.”

The Instalment Sale Contract, which quite apparently was assigned to respondent, included the $103.00 premium, and the phrase “Buyer may choose the person through which this insurance is to be obtained.” Further, it provided: “3(a) In the event either (1) that the obligation payable hereunder includes a charge for the required physical damage insurance, to be procured either by seller or by buyer, for a period less than the full term of this contract, or (2) that said obligation does not include a charge for required physical damage insurance, buyer shall furnish satisfactory evidence that said property continues to be effectively and adequately covered by such insurance at all times during the term of this contract. Upon failure of the buyer to do so for any reason, seller may, but without prejudice to seller’s rights under this contract if it does not, endeavor to procure such insurance, and in the event that seller does procure same, buyer agrees to pay, as an additional part of the obligation secured hereunder, a charge equal to the amount of the premium for such insurance, together with interest thereon at the highest lawful contract rate, in equal instal-ments concurrently with the instalments of the unpaid balance then remaining payable hereunder.”

What has happened here is that the respondent received the $95.00 refund of insurance premium which belonged to appellant. She was, however, according to the contract, under the primary obligation to provide physical damage insurance which she did not herself do after the cancellation. Respondent affirmatively undertook to procure the insurance as per its advice to appellant in the letter of September 17, 1971, still holding the $95.00 in its possession. Again, in accordance with its right under the contract, respondent advised appellant by that letter that her installment payments were increased to $75.00 per month to take care of the premium on the insurance. September 25, 1971, was appellant’s next installment date. She paid it on October 7, 1971, and subsequent payments were made on November 8, 1971; December 8, 1971; January 12, 1972, and January 31, 1972, all presumably in the original amount of $56.26 each. Subsequent to the September 16, 1971 letter of respondent, there were five installments due. The difference between the increased monthly installment, for insurance premium, of $75.00 and $56.26 is $18.74. For the five installments, this increase would amount to $93.70, which is less than the $95.00 refund which respondent had on hand and which could have been used for insurance purposes by it as below held.

It is true that, as the admissions show, she did not respond to respondent’s inquiries as to what disposition she wanted of the $95.00. In that situation the familiar and analogous rule applies that where the debtor, having the opportunity to do so, fails to make a designation of where his funds in the hands of the creditor should be applied, the creditor may do so. 70 C.J.S. Payment § 57, p. 262; Neal v. Gideon, 157 Kan. 1, 138 P.2d 419, 420[3, 4] (1943); Edelblute v. Waddell & Reed, Inc., 171 Kan. 508, 233 P.2d 757, 761[6, 7] (1951); and Carry v. Homer, 195 Kan. 475, 407 P.2d 538, 542[1] (1965), et seq., and cases and authority cited. For Missouri cases holding similarly, see Herrman v. Daffin, 302 S.W.2d 313 (Mo.App.1957); Madison v. Dodson, 412 S.W.2d 552 (Mo.App.1967). And, where as here, the debtor having had the opportunity to designate application of payment and both he and the creditor fail to do so, the “law will make the application as right and justice requires . . . ” Title Insurance Corp. of St. Louis v. United States, 432 S.W.2d 787, 791[6] (Mo.App.1968); Herrman, supra; and Neal v. Gideon, supra, 138 P.2d 419, 420[3, 4] (1943). In this case, justice requires that this court hold that the $95.00 in respondent’s hands, which it did not credit after notice to appellant, be in equal installments of $18.74 each applied to the contractual additional amount of insurance coverage for five months, which would extend beyond the date of January 21,1972, when respondent repossessed the automobile. By this application of the funds in respondent’s hands, there was no legal basis for it to replevin the automobile upon the sole ground, as admitted, that there was no insurance coverage on the vehicle. Respondent will not be heard to say, in view of its September 16, 1971, letter, that it was not obliged to procure physical damage insurance on the automobile, in accordance with the right it had under the contract. It follows that as a matter of law, the replevin and repossession of the vehicle was wrongful, and a genuine issue of fact remains as to appellant’s damages under Count I.

The automobile was returned to appellant on February 7, 1972, after she had procured an insurance policy of her own. At that time she signed a purported release of respondent’s liability incident to the repossession. Since the replevin was wrongful, appellant was entitled to the possession of her automobile, and nothing new flowed from respondent to her. The release is without consideration and is not a bar to appellant’s action. Green v. Baum, 132 S.W.2d 665, 667 (Mo.App.1939); Scott v. Missouri Ins. Co., 361 Mo. 51, 233 S.W.2d 660, 663 (banc 1950).

In Count II of her petition, appellant alleges that the $45.60 of her $95.00 insurance refund was wrongfully converted to respondent’s use in applying the $45.60 to its costs in the repossession of the automobile. Respondent in answer admits that application of funds. As noted above, the replevin and repossession was wrongful, and respondent was therefore not authorized to incur any such costs at appellant’s expense. The $45.60 was diverted from its proper application to the payment of insurance premiums under the installment contract, as above held. As a matter of law there was a wrongful conversion of the insurance premiums, and there remains the issue of appellant’s damages for that act (as prayed $45.60 actual and $500.00 punitive damages).

Appellant’s Count III is to the effect that respondent, on a second replevin and repossession of her automobile, March 17, 1972, accepted her late monthly payments after July 29,1971, without repossession and thus lulled her into a false sense of security that it would accept late payments and refrain from repossession. The admissions show that appellant did, prior to the first repossession in January, make late payments and respondent accepted them. Undoubtedly, as a basis for repossession at that time, respondent could be held to be have waived the requirement of the contract for payments on time; and note that the basis for repossession in January was the failure to have insurance coverage solely-

As to the March repossession, the admissions show that after appellant was restored to possession of the vehicle on February 7, 1972, respondent on or about February 7, 1972, warned appellant that all future payments must be made on the due date, or the automobile would be repossessed. Appellant mailed a money order to respondent on March 19, 1972, two days after repossession, which was for the delinquent February 29, 1972, installment. The same was 19 days late, and the money order was returned to appellant. As to this repossession there was certainly no course of conduct, i. e., several acceptances of late payments, which would lull appellant into a false sense of security that no repossession would take place. No genuine issue of fact appears with respect to that issue and summary judgment was proper as to Count III. The facts are inapposite to Edwards v. Smith, 322 S.W.2d 770 (Mo.1959), where there was a constant default in installments over two years lending support to the alleged agreement not to declare the whole amount of the note due without first giving notice that payments would be required to be made in accordance with the terms of the note and giving reasonable opportunity to make delinquent payments. Here, as admitted, notice was given, and thereby appellant was given the opportunity to make the February 29, 1972, payment on time.

The judgment upon Count III is affirmed. The judgments on Counts I and II are reversed, and as to them, the case is remanded for trial on the issue of damages only.

All concur.


source: Caselaw Access Project

author: SHANGLER, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Robert M. DRISKO and Mary Elizabeth Drisko, Appellants.
    No. KCD 27087.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.
    Motion for Rehearing and/or Transfer Denied June 1, 1976.
    Application to Transfer Denied July 12, 1976.

      David R. Clevenger, Platte City, Dick H. Woods, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, of counsel, for appellants.
    Bruce A. Ring, Chief Counsel, Jefferson City, Earl H. Schrader, Jr., John M. Cave II, Asst. Counsel, Missouri State Highway Commission, Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The plaintiff State Highway Commission condemned 13.53 acres of a 126.176 acre tract in Platte County owned by the defendants Drisko. The land lies on the west side of 1-29 about one and one-half miles south of the entrance to the Kansas City International Airport. The Tiffany Springs Parkway interchange with 1^29 now occupies that site. Also taken in condemnation were the rights of defendants to direct access between the interstate highway and the interchange, except for access made available to an outer road constructed by the Commission along the Drisko frontage. The land was taken on April 18, 1968, and was zoned for a planned industrial park. The jury returned damages of $67,650 and the defendants have appealed.

The opening statement of counsel for the Commission remarked:

It will be the state’s evidence that after Interstate Highway 29 has been applied, all of the right-of-way was owned and the plans drawn and filed and that being the condition, that after that time the State Highway Department and at the request of the City and at the request of Doctor Drisko came along and put in an interchange at this point, taking as we said thirteen and a half acres to do so.

At the conclusion of this presentation, and after the court was adjourned for mid-day recess, the defendants made objection to these remarks and moved dismissal of the jury on the ground that the interchange was not placed at the request of the Dris-kos, and that the issue was in any event irrelevant to the proceedings. In the colloquy which ensued, counsel made their positions to the court: It was the contention of the Commission that the proposed proof— that the interchange was located as requested by the Driskos and connected with the limited access road to their property— conferred a special benefit upon that land and was proper evidence on damages. The defendants contend there was neither proof of such a request nor would such be evidence of a special benefit.

The trial court refused the motion to discharge the jury, but disallowed further reference to the matter in the absence of proof that the Commission and the Driskos had agreed to the placement of the interchange.

The trial commenced, and in the course, the Commission offered to prove by District Engineer Satterlee that to promote the development of Tiffany Springs the City of Kansas City had agreed [in September of 1966] with the Commission to pay the entire cost of a full diamond interchange on 1-29 on condition that the State condemn the land and construct the improvement; that the original plans for 1-29 were changed [in January of 1967] to include the interchange, and that the right of way for the Tiffany Springs Parkway — which passed through the Drisko land and connected with the interchange — was conveyed [in December of 1970] by deed of gift to the City by the defendants. This evidence, the Commission contended to the trial court, allowed the inference that the Driskos sought for the location of the interchange on their property and was for the jury. The defendants argued that the Satterlee evidence was not probative of such a request by them and, if allowed to the jury, would only raise the false inference that the defendants considered the placement a benefit to their remaining property.

The offer of proof was denied by the court.

On this appeal the defendants contend that although the evidence of request was not received, the opening statement which made reference to a proposed proof the court later excluded left the jury with the impression that the defendants expected substantial benefits to their remaining property from the location' of the interchange. It was a false issue, they say, which could only be dispelled by a mistrial, and now by the order of a new trial.

The rule obtains, as the parties agree, that where the active conduct of a landowner secures the location of a public roadway through his property, an inference arises that he expected substantial benefits to accrue to his remaining property. State ex rel. State Highway Commission v. Shain, 340 Mo. 802, 102 S.W.2d 666, 669[3, 4] (1937). We need not determine whether, as a matter of law, the evidence of the contracts between the Commission and City concerning the highway improvements in Tiffany Springs, the construction of the interchange to link with the access road installed by the Commission along the Dris-ko frontage, and the conveyance by gift from the defendants to the City are probative of a request by the Driskos for the placement of the interchange. We have concluded, rather, that the trial court did not commit prejudicial error by the refusal to grant a mistrial.

The power to grant or withhold a mistrial is committed to the sound discretion of the trial court. It is an exercise which will not be disturbed on appeal unless clearly abused. Golian v. Stanley, 334 S.W.2d 88, 91[1-3] (Mo.1960). The improper remarks of counsel on opening statement, without more, may result in such prejudice as to warrant the grant of a new trial, as when reference is made to evidence extraneous to the issue [Underwood v. City of Caruthersville, 184 S.W. 486, 488[1—3] (Mo.App.1916)] or when counsel proposes proof he knows is not available to him. Cade v. Atchison, T. & S. F. Ry. Co., 364 Mo. 620, 265 S.W.2d 366, 370[10, 11] (banc 1954). Neither contingency appears here; the proof predicted in the opening statement was of plausible relevancy on damages. A party who seeks to correct the misconduct of counsel during trial, however, owes the court the opportunity to give relief by a request for instant action and ruling. Minor v. Lillard, 306 S.W.2d 541, 548[12, 13] (Mo.1957). An objection which is deferred until the end of the opening statement comes too late and waives the prejudicial effect of the misconduct. Critcher v. Rudy Fick, Inc., 315 S.W.2d 421, 427[6, 7] (Mo.1958); State v. Robb, 439 S.W.2d 510, 514[6—8] (Mo.1969).

In this case the trial court, with justified vexation, denied the mistrial motion as too tardy an objection. The defendants sought no other remedy although the court expressed inclination to instruct the jury to disregard the remarks. It is reasonable to conclude from the comment of the court and the trial and post-trial rulings on the motion that the prejudicial effect of the remarks was not so grievous as to deprive the defendants of a fair trial. The trial conduct of the court was a justifiable exercise of discretion. The claim of error is denied.

The defendants next contend they were prejudiced by certain evidence of comparable sales which, they say, were transacted under market conditions significantly different from those which prevailed when their property was taken in condemnation, and thus not relevant to prove their damage. The Drisko land was taken in April of 1968. In December of 1966, the electorate approved a $150,000,000 bond issue for the development of facilities at the Kansas City International Airport. There was an immediate surge of interest in the lands north of the airport and on the west side of [what is now] 1-29, and a concomitant inflation in their value. An expert for the defendants calculated that during the three years after the bond issue, land values in the environs of the airport increased an average of 141.6 percent per year, as compared with an average increase throughout the state of 12 percent per year. The defendant contended to the trial court that the passage of the airport bonds so affected the market conditions of land as to deprive evidence of sales before that event of any relevancy on the proof of the value of the land taken. The court rejected this contention and allowed in evidence three sales of land transacted in 1966 to prove the value of the property taken in condemnation — among them, the price paid by the defendants in April of 1966 for 94 acres of land which adjoined the tract taken.

It is the general rule that evidence of the sale price of property similarly located to that taken in condemnation, and made in the neighborhood reasonably proximate to the time of taking, is admissible to aid the triers of fact in the determination of compensation to which the owner is entitled for the property taken. In re Armory Site in Kansas City, 282 S.W.2d 464, 473[22-25] (Mo.1955). The determination by the trial judge that a sale meets these criteria, and therefore is relevant on the issue of the value of the property taken, is an exercise of discretion which will not be disturbed unless clearly abused. City of St. Louis v. Buselaki, 336 Mo. 693, 80 S.W.2d 853, 857[6] (banc 1935). The determinative consideration in admissibility of comparable sales as proof of value, however, is not the lapse of time between the transactions and the appropriation, nor the relative positions of the properties, nor their physical congruity, but whether the market conditions have changed. State of Missouri ex rel. State Highway Comm’n v. Henderson, 381 S.W.2d 10, 12[3] (Mo.App.1964). Where the evidence shows a marked change in the conditions of the market since the sale of the comparable property, that sale price loses relevancy to determine the value of the property taken and should be excluded from evidence. State ex rel. State Highway Commission v. Rauscher Chevrolet Company, 291 S.W.2d 89, 92[3-6] (Mo.1956).

The defendants object that the airport bond issue so stimulated land sales and values that the prices paid for land prior to December of 1966 reflect significantly different market conditions, are not relevant to prove the value of the land taken, and should have been excluded by the trial court.

The flaw in this contention is simply that the Commission did not offer the bare sales price of the 1966 land transactions to prove value, but by expert testimony adjusted the sale price of each tract to reflect the upsurge in market conditions since the sales but before the appropriation. Thus the value of the Ross property on Northwest 104th Street which sold for $1000 per acre in June of 1966 was adjusted by the expert, not only on factors of zoning and proximity but also market advance, to establish a value of $4000 per acre for April of 1968, the date of taking. The price of each of the other two land sales transacted in April of 1966 and received by the court as comparable sales, was adjusted to market conditions by the same method.

This evidence was probative of the worth of these tracts at the time of the appropriation and was relevant to prove the value of the Drisko land at the time it was taken.

The judgment is affirmed.

All concur.


author: TURNAGE, Presiding Judge.

text:
    Kathleen J. BOGDON, Respondent, v. COMMERCE BANK OF KANSAS CITY, d/b/a Bankamericard, Appellant.
    No. KCD 27224.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.
    Motion for Rehearing and/or Transfer Denied June 1, 1976.
    John C. Thurlo, Michael H. Maher, Swanson, Midgley, Eager, Gangwere & Thurlo, Kansas City, for appellant.
    Joseph W. Amick, Welch & Austin, Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Petition in equity to set aside a default judgment obtained by Commerce Bank against Kathleen J. Bogdon in the magistrate court. The trial court set aside such judgment and Commerce appeals.

On appeal Commerce urges there was insufficient evidence to establish the fact the judgment was obtained by mistake; that Bogdon did not show the exercise of due diligence in defending the magistrate action; an erroneous finding that Bogdon’s attorney did not receive a letter from Commerce’s attorney that judgment would be taken. Affirmed.

Commerce brought suit in the magistrate court against Bogdon and her former husband for amounts allegedly due as a result of purchases made with a credit card issued by Commerce to Bogdon’s former husband. Although the petition alleged the credit card was issued to the former husband and Bogdon, the evidence in this suit to set aside showed the card was issued only to the former husband. In fact, the application for the card showed the age of Bogdon at that time to be nineteen.

After Bogdon was served with summons in the magistrate court, she consulted an attorney who in turn called the attorney representing Commerce. An agreement was made between attorneys that Commerce would attempt to get the former husband served, since he had not been served at that time. After several attempts service was obtained on the former husband. After such service, Bogdon’s attorney agreed with the attorney representing Commerce that the former husband should pay the $519.40 plus $128 attorney fees. The Commerce attorney was to notify Bogdon’s attorney if the account was paid; but in the meantime, agreed the magistrate suit would be continued.

After another conversation between the attorneys in which it was ascertained the former husband had not paid, the Commerce attorney testified he decided he had to take a judgment. He testified he mailed a letter to Bogdon’s attorney advising him a judgment would be taken about six weeks thereafter. Bogdon’s attorney testified he never received any letter advising that judgment would be taken. On the day stated in the letter, a judgment was taken against Bogdon, since by that time her former husband had been declared a bankrupt.

Nothing further was done until about six months after the judgment was taken when Commerce’s attorney wrote Bogdon advising that a judgment had been taken and suggesting a garnishment would be run on her salary if the same were not paid. This suit to set aside such default judgment was then filed.

The trial court found the attorneys representing the parties had entered into an agreement to automatically and periodically continue the case in the magistrate court until such time as collection could be made from the former husband. The court further found a letter was written advising Bogdon’s attorney a judgment would be taken, but that Bogdon’s attorney did not actually receive such letter. The court further stated as a conclusion of such findings that a mutual mistake of fact existed, resulting in the judgment being taken without affording Bogdon the right to defend such action when she demonstrated she had a meritorious defense.

Commerce contends there was insufficient evidence to establish the existence of any mistake which would justify setting aside such judgment. In this case, under Rule 73.01, this court reviews the case upon both the law and the evidence. Due deference is to be given to the findings and conclusions of the trial chancellor and this deference will not be ignored unless the evidence is insufficient to sustain the findings. R. L. S. v. J. E. S., 522 S.W.2d 5, 7[2] (Mo.App.1975).

The finding of the trial court that an agreement existed between the parties for the magistrate suit to be continued from time to time, and that the letter advising Bogdon’s attorney a judgment would be taken was not received, is supported by substantial and competent evidence. The conclusion of the trial court that this resulted in a mutual mistake may be considered as surplusage in view of the decision by this court in J. R. Watkins Co. v. Hubbard, 343 S.W.2d 189 (Mo.App.1961). In that case, Judge Cross made an exhaustive and definitive examination of the effect of a default judgment taken in violation of an agreement between attorneys. At 343 S.W.2d 192[2], Judge Cross stated: “[i]t is also thoroughly settled law that a judgment, obtained in violation of any agreement or promise by which an appearance to make a meritorious defense is prevented, will not be allowed to stand.”

In this case the existence of an agreement between the attorneys representing Bogdon and Commerce for the continuance of the magistrate case is undisputed. The only conflict in the evidence centered on whether or not Bogdon’s attorney had actually received the letter stating judgment would be taken. That attorney testified unequivocally he did not receive such letter and the trial court found he did not. This finding by the trial court on the only disputed fact issue is supported by substantial evidence and under the rule of deference will not be disturbed. In that situation, the judgment was taken in violation of the agreement for the magistrate case to be continued, thus, cannot be allowed to stand. No question is raised concerning the existence of a meritorious defense.

Commerce next contends the evidence did not show Bogdon exercised due diligence in defending the magistrate court action. This too is covered in the exhaustive opinion in Watkins in which it was held that when an attorney has a right to rely on an agreement that a case will not be tried, he is not negligent in his defense of the suit. Here, since the agreement was admitted for the continuances to be automatic, Bogdon’s attorney certainly had a right to rely on such agreement. For that reason, such attorney was not negligent in his defense of the magistrate action.

Commerce finally urges the trial court’s finding that Bogdon’s attorney did not receive the letter advising judgment would be taken is clearly erroneous. As stated, the finding that such letter was not received is supported by substantial and competent evidence. This was a matter peculiarly within the province of the trier of fact. Shute v. Prom Motor Hotel, Inc., 446 S.W.2d 137, 141 (Mo.App.1969). Further, evidence of mailing does not constitute evidence of receipt in the face of evidence to the contrary. McCaskey Register Co. v. Erffmeyer, 46 S.W.2d 256, 257[1] (Mo.App.1932).

In addition to the above, this court has stated: “[t]he trial court has a wide discretion in setting aside a default judgment; and, unless the discretion is abused, we will not intervene.” Anderson Motor Co. v. Sterling, 121 S.W.2d 275, 278[2-4] (Mo.App.1938). Here no abuse of discretion is shown.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Kenneth Ray DENNIS, Appellant.
    No. KCD 27690.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.
    Motion for Rehearing and/or Transfer Denied June 1, 1976.
    Application to Transfer Denied July 12, 1976.

      Richard J. Yocum, Asst. Public Defender, St. Joseph, for appellant.
    John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Direct appeal following a guilty plea to a charge of rape. A sentence of ten years to run consecutively to a prior conviction was imposed.

On this appeal defendant raises two questions: (1) that a plea of guilty to the rape of the same woman in another county subjected defendant to double jeopardy for the same occurrence and since rape is a continuing offense, defendant was charged with the same offense, and (2) because of a delay of sixteen months from the date of the offense until the indictment was returned, defendant was denied his right to a speedy trial. Affirmed.

The courts of this State do not sanction a general right to appeal from a plea of guilty. State v. Cody, 525 S.W.2d 333, 335[6, 7] (Mo. banc 1975). It is also stated in Cody: “[w]e do not disturb the rule in Missouri that a plea of guilty voluntarily and understandingly made waives all non-jurisdictional defects and defenses.” 525 S.W.2d 333, 335[6, 7]. See also Kansas City v. Stricklin, 428 S.W.2d 721, 728[8, 9] (Mo. banc 1968). However, the plea of double jeopardy does raise a jurisdictional question which may be considered on direct appeal following a guilty plea. State v. Cody, supra.

The claim made by defendant is that rape is a continuing offense. The defendant would seem to be urging that if a person is once convicted of rape he could never thereafter be tried for the rape of the same woman. This, of course, is completely untenable.

Generally rape is not a continuing offense, but each act of intercourse constitutes a distinct and separate offense. 75 C.J.S. Rape § 4. In a very similar situation the claim of a continuing offense was rejected in Mikell v. State, 242 Ala. 298, 5 So.2d 825 (1942). There the court held a prosecution for rape in one county was not barred by a previous acquittal on a charge of rape on the same woman a short time earlier in another county.

Here the previous assault upon which the defendant bases his claim of double jeopardy occurred in Atchison County, Missouri. The record does not disclose the precise times involved, but it does show an admission by the defendant that he kidnapped his victim and after two assaults, tied her up and put her in the back seat of his car. He then drove to Platte County, Missouri, where the assault to which he pled guilty in this case took place. This court can take judicial notice of the distance between Platte County and Atchison County to ascertain the distance is approximately seventy miles. It is thus apparent there was some time interval between the occurrence in Atchison County and that in Platte County.

No case has been cited in which a Missouri court has decided the question raised by defendant as to whether multiple assaults resulting in rape constitute multiple crimes or but a single crime. Independent research also fails to locate any Missouri authority on this subject. In addition to the statement in C.J.S. and Mikell the Tennessee Court of Criminal Appeals confronted this problem in Lillard v. State, 528 S.W.2d 207, 210[1, 2] (Tenn.Cr.App.1975). The court in Lillard discussed this problem and in so doing stated at 528 S.W.2d 211[3]:

“But we do not agree that a man who has raped a woman once may again assault and ravish her with impunity, at another time and at another place, as was done here. An intent was formed to rape her again. The evidence of the second rape is entirely additional to that of the first. Additional orders were given to the captive female, an intent to have her again was formed and manifested, and the crime committed. Certainly there was separate and additional fear, humiliation and danger to the victim.”

The reasoning in Lillard is persuasive upon this court. Certainly it cannot be held that a man who has raped a woman once may again assault and ravish her with impunity.

By the admission of the defendant in this case the assault in Platte County took place considerably after the assaults in Atchison County. But even more germane to the question than the time interval is the fact the defendant formed the intent to again assault the victim in Platte County and again applied the force necessary to accomplish his purpose and thereupon completed a separate and distinct act.

Lending additional support to this conclusion is the fact Missouri does not follow the same transaction rule in determining double jeopardy. State v. Bowles, 360 S.W.2d 706, 707[1] (Mo.1962). In applying the separate and several offense rule which Missouri has adopted, it is apparent the assault in Platte County was a separate and distinct crime for the reasons heretofore outlined. Defendant’s contention that the Platte County charge constituted double jeopardy is rejected.

The other ground urged by the defendant does not fall within the rule in Cody and thus cannot be considered on this appeal. In that ground, defendant claims a denial of his constitutional right to a speedy trial in the delay in bringing the indictment of about sixteen months after the date of the occurrence. It was stated in Steinkuhler v. State, 490 S.W.2d 68, 71[1, 2] (Mo.1973) “the contention of denial of defendant’s right to a speedy trial forms no basis for relief following a plea of guilty.”

In any event, a motion to quash the indictment, filed by the defendant prior to his guilty plea, showed he was charged with the same crime in the magistrate court. Such motion further shows no preliminary hearing was held on this charge from September, 1972, until the indictment was returned in January, 1974, because of an agreement between the attorneys representing defendant and the State. In this situation the defendant is in no position to complain that he was denied a speedy trial. State v. Harris, 425 S.W.2d 148, 151[2, 3] (Mo.1968).

Judgment affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE ex rel. GENERAL TELEPHONE COMPANY OF the MIDWEST, a corporation, Relator-Respondent, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent-Appellant.
    No. 27856.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.
    Motion for Rehearing and/or Transfer Denied June 1, 1976.

      Leland B. Curtis, Commission Counsel, Michael K. McCabe, Sr., Counsel, Missouri Pub. Serv. Comm., Jefferson City, for respondent-appellant.
    J. Robert Jones, William H. Schneider, Power, Jones & Schneider, Columbus, Ohio, Dale E. Sporleder, Spencer, Fane, Britt & Browne, R. W. Hedrick, Jr., Goller & He-drick, Jefferson City, for relator-respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Telephone service rate increase proceeding. On September 1, 1972, General Telephone Company of the Midwest filed tariffs to increase the company’s annual gross revenues from Missouri operations by $1,503,-322 per year. After a hearing, the Missouri Public Service Commission entered an order authorizing an increase of $846,722 per year. Midwest obtained a review of the order by the Cole County Circuit Court, which reversed the order of the commission and remanded the case to the commission for further proceedings. Commission has appealed.

General Telephone Company of the Midwest (“Midwest”) operates in Iowa, Missouri and Nebraska. The Missouri division served 87,909 telephones in 46 exchanges, located largely in smaller cities. The City of Columbia is the largest urban area served by Midwest in Missouri.

Midwest is a wholly-owned subsidiary of General Telephone & Electronics Corporation (“GT&E”). Through various subsidiaries such as Midwest, GT&E provided service to 10,005,000 telephones in the United States, the largest number served by any system other than that of the American Telephone & Telegraph Company system (“Bell”). GT&E supplied service to 46.6% of the telephones served by the so-called “independent” telephone companies (non-Bell) in the United States. Its operating revenues were 49.2% of the total revenues of such independent companies.

GT&E also owned other communications, manufacturing and research companies. Manufacturing operations provided approximately the same gross income to GT&E as its telephone operations.

Among the manufacturing subsidiaries is GT&E Automatic Electric, Incorporated (“Automatic”). Automatic manufactures equipment for the telephone industry and distributes telephone and miscellaneous supplies manufactured by others. Automatic has been in business since 1891. In 1955, GT&E acquired 78% of the outstanding Automatic stock and by 1961 Automatic was wholly owned by GT&E.

Another wholly-owned subsidiary of GT&E is General Telephone Directory Company (“Directory”). It produces telephone, directories for Midwest and other GT&E affiliated customers and also nonaffiliated customers. Directory sells yellow page advertising in its customers’ directories. A portion of the advertising revenues are paid to the telephone company pursuant to contract.

On this appeal, the primary question relates to the commission’s treatment of transactions between Midwest and Automatic and Midwest and Directory.

In the hearing before the commission, Midwest presented evidence that the prices it paid to Automatic for equipment and supplies are as low or lower than the prices paid by nonaffiliated companies for comparable items. The commission staff witness acknowledged that this was true, but he concluded that price comparisons “are wholly unacceptable when the buyer and seller are affiliated companies” and that in such circumstances the reasonableness of the price charged the buyer by the affiliated seller must be measured by reference to an appropriate level of profit for the seller in the price charged. The commission agreed with this conclusion.

The commission found that Automatic had charged Midwest “inflated prices” for manufactured products and supplies and, based upon cost figures which would have provided an 11.5% return on equity to Automatic, the commission ordered an adjustment in the net original cost rate base by the elimination of $625,764 from the telephone plant in service and $183,355 from the reserve for depreciation. After such net adjustment of $442,409, the commission found a net original cost rate base of $35,-628,646. The commission also disallowed payments from Midwest to Directory to the extent of $36,369, representing the difference between the 25.93% return on equity which the commission found to be excessive and an 11% return on equity for Directory.

On the review by it, the circuit court found that Midwest had sustained its burden of showing that the order of the commission is unlawful and unreasonable. The court held that the order was unreasonable and unlawful and in excess of the statutory authority of the commission “in that the commission attempts to regulate the affiliates of GT&E by determining the reasonableness of profits and earnings for the Directory Company and Automatic Electric”; that the transactions between Midwest and its affiliated companies were reasonable and did not have an effect on Midwest’s rates or services; that the prices paid by Midwest to its affiliates for equipment and supplies were reasonable; that the order is unreasonable, unlawful, capricious and an abuse of discretion in that the commission ignored the evidence of Midwest that it pays its affiliates less for its equipment than do other telephone companies and that Midwest buys its equipment from Automatic for less than it can purchase it from others. The court further found the order unreasonable and invalid as retroactive rate making because it adjusted the value of Midwest property acquired prior to 1962, the date of the last previous rate case of Midwest considered by the commission, in which the transactions between Midwest and Automatic were approved. Finally, the court found that the rate of return allowed by the commission was confiscatory.

The question of handling of expenditures by a public utility in transactions with affiliated companies is one of the many perplexing problems which arise in public utility rate regulation.

Judicial opinions in which the problem has received recent consideration include General Tel Co. of Upstate N. Y., Inc. v. Lundy, 17 N.Y.2d 373, 271 N.Y.S.2d 216, 218 N.E.2d 274 (1966); Pacific Telephone & Tel. Co. v. Public Utilities Commission, 62 Cal.2d 634, 44 Cal.Rptr. 1, 401 P.2d 353 (1965); City of Los Angeles v. Public Utilities Commission, 7 Cal.3d 331, 102 Cal.Rptr. 313, 497 P.2d 785 (1972); Rhode Island Consumers’ Council v. Smith, 111 R.I. 271, 302 A.2d 757 (1973); Illinois Bell Tel. Co. v. Illinois Commerce Commission, 55 Ill.2d 461, 303 N.E.2d 364 (1973); Pacific Northwest Bell Tel. Co. v. Sabin, 534 P.2d 984 (Or.App.1975); Northwestern Bell Telephone Company v. State, 299 Minn. 1, 216 N.W.2d 841 (1974); State ex rel. Utilities Comm. v. General Tel. of Southeast, 281 N.C. 318, 189 S.E.2d 705 (1972).

Recent regulatory agency decisions in the field include: Re General Telephone Co. of California, 80 PUR 3d 2 (Cal.1969); Re General Telephone Co. of California, 92 PUR 3d 224 (Cal.1971); Re General Telephone Co. of the Midwest, 3 PUR 4th 113 (Iowa 1974); Re Mountain States Tel. & Tel. Co., 1 PUR 4th 38 (Colo.1975); Re General Tel. Co. of Illinois, 6 PUR 4th 90 (Ill.1974).

In some states the legislature has seen fit to authorize expressly the regulatory authority to disallow unreasonable profit made in the sale of equipment or supplies to the utility by an affiliate. See § 490A.8, Iowa Code (1963). Some statutes require prior approval by the regulatory authority of contracts with affiliated suppliers. § 757.495 ORS; Wash.Code, § 80.16.020; Wis.Stat. § 196.52[3],

Missouri has no such statute. Therefore, if the authority of the Public Service Commission is to extend to such transactions, it must be implied from the powers otherwise expressly granted the commission. In fixing rates for telephone companies the commission is required to give “due regard, among other things, to a reasonable average return upon the value of the property actually used in the public service * * *.” § 392.240 1., RSMo 1969. In ascertaining the value of telephone company property, the commission is given the power to ascertain “every fact which in its judgment may or does have any bearing on such value.” § 392.270 1., RSMo 1969. Inasmuch as one of the objects of the rate-making process is the protection of the public from excessive charges by a utility, it is obvious that the commission is not required to accept, without question, any exorbitant price which a utility might see fit to pay for the various items of property which are included in the company’s rate base. In State ex rel. City of West Plains v. Public Service Commission, 310 S.W.2d 925, 928-929 (Mo.1958), the court stated:

“[1-3] * * * It would appear that the statutory power and authority which the commission has to pass upon the reasonableness and lawfulness of rates and to determine and pass upon the question of what rates are necessary to permit a utility to earn a fair and reasonable return (§§ 392.-220, 392.230, 392.240) necessarily includes the power and authority to determine what items are properly includable in a utility’s operating expenses and to determine and decide what treatment should be accorded such expense items. Cf. State ex rel. Western Union Tel. Co. v. Public Service Commission, 304 Mo. 505, 517, 264 S.W. 669, 672[6], 35 A.L.R. 328. * * * ”

The commission has disallowed license contracts and fees charged operating utilities by a parent company. In re Springfield City Water Co., 83 PUR (N.S.) 213 (Mo.1949); P.S.C. v. Kansas City P. & L. Co., 30 PUR (N.S.) 193 (Mo.1939); P.S.C. v. Empire Dist. Elec. Co., 10 PUR (N.S.) 302 (Mo.1935); P.S.C. v. Missouri Southern P. S. Co., 6 PUR (N.S.) 269 (Mo.1934).

In State ex rel. Southwestern Bell Telephone Co. v. Public Service Commission, 233 S.W. 425 (Mo. banc 1921), the court upheld the action of the commission in fixing rates in which it required Southwestern Bell to justify the amount of toll charge paid its corporate parent, A. T. & T. In refusing to disturb the commission’s action, the court stated: “Probative force is given to this conclusion in view of the relation of the appellant to the American Telegraph & Telephone (sic) Co.” 233 S.W. 432. The court also upheld the action of the commission in disallowing 55% of the 4½% gross revenues paid A. T. & T. as rent for telephone equipment. 233 S.W. 434-435.

As pointed out by respondent and acknowledged by appellant, the United States Supreme Court reversed this decision. Missouri ex rel. Southwestern Bell Telephone Co. v. Public Service Commission, 262 U.S. 276, 43 S.Ct. 544, 67 L.Ed. 981 (1923). The reversal was premised upon the conclusion that the rates set by the commission were confiscatory. The court took note of the disallowance of a portion of the rental paid to American Telephone & Telegraph, stating (262 U.S. 288-289, 43 S.Ct. 546-547):

“The important item of expense disallowed by the commission — $174,048.60—is 55 per cent, of the 4½ per cent, of gross revenues paid by plaintiff in error to the American Telephone & Telegraph Company as rents for receivers, transmitters, induction coils, etc., and for licenses and services under the customary form of contract between the latter company and its subsidiaries. Four and one half per cent, is the ordinary charge paid voluntarily by local companies of the general system. There is nothing to indicate bad faith. So far as appears, plaintiff in error’s board of directors has exercised a proper discretion about this matter requiring business judgment. It must never be forgotten that while the state may regulate, with a view to enforcing reasonable rates and charges, it is not the owner of the property of public utility companies, and is not clothed with the general power of management incident to ownership. The applicable general rule is well expressed in State Public Utilities Commission ex rel. Springfield v. Springfield Gas & Electric Co., 291 Ill. 209, 234, 125 N.E. 891:

“ ‘The commission is not the financial manager of the corporation, and it is not empowered to substitute its judgment for that of the directors of the corporation; nor can it ignore items charged by the utility as operating expenses unless there is an abuse of discretion in that regard by the corporate officers.’ ”

However, that such pronouncement did not lay down the only test is clear from the later case of Smith v. Illinois Bell Tel. Co., 282 U.S. 133, 51 S.Ct. 65, 75 L.Ed. 255 (1930). In that case the court stated (282 U.S. 151-153, 51 S.Ct. 70):

“Other questions are presented growing out of the relation of the Illinois Company to the Western Electric Company and to the American Company. While the Illinois Company is a distinct corporate organization, it has the advantage of being a component part of a large system to which the benefits of its operations accrue. Through this relation the Illinois Company obtains the cooperation of the manufacturing, research, engineering and financing departments of the American Company. This does not alter the fact that the Illinois business is to be treated as a segregated enterprise. If a single individual or corporation, having a number of technical staffs, engaged directly in local public services within several States, each State would be entitled to regulate the transactions within its own domain according to its own conception of public policy, provided there were no infringement of the fundamental rights guaranteed by the Federal Constitution, and, if the latter were invoked by reason of the action of any State, it would still be necessary to consider the local enterprise separately and to make whatever appor-tionments were necessary in that view. The corporate organization of the Illinois Company not only created a legal person amenable as such to governmental authority, but facilitates the examination of the particular transactions subject to that authority. The question presented in the present case is not one of the abuse of intercorporate relations, or of domination or control affecting the integrity of the direction of the affairs of the Illinois Company, but of alleged confiscation through prescribed intrastate rates.

“Contentions of the appellants in this relation are directed to the purchases from the Western Electric Company and to the payments to the American Company under what is called its ‘license contract.’ It appears that the Illinois Company has purchased practically all its equipment from the Western Electric Company. The state commission in laying the basis for its rate order made no finding as to the fairness of the prices on such purchases. On the record in this suit, the court concluded that the City had failed to support its contention that these prices were exorbitant. The court said that it appeared that for the past fourteen years the average profit of the Western Electric Company on its total business had not been ‘in excess of seven per cent, and never above ten per cent.’ That fact has evidentiary value but the finding does not go far enough. The Western Electric Company not only manufactured apparatus for the licensees of the Bell system but engaged in other large operations and it cannot be merely assumed or conjectured that the net earnings on the entire business represent the net earnings from the sales to the Bell licensees generally or from those to the Illinois Company. Nor is the argument of the appellants answered by a mere comparison of the prices charged by the Western Electric Company to the Illinois Company with the higher prices charged by other manufacturers for comparable material, or by the Western Electric Company to independent telephone companies. The point of the appellants’ contention is that the Western Electric Company, through the organization and control of the American Company, occupied a special position with particular advantages in relation to the manufacture and sale of equipment to the licensees of the Bell system, including the Illinois Company, that is, that it was virtually the manufacturing department for that system, and the question is as to the net earnings of the Western Electric Company realized in that department and the extent to which, if at all, such profit figures in the estimates upon which the charge of confiscation is predicated. We think that there should be findings upon this point.”

Certainly, in view of the Smith case, the Southwestern Bell Telephone case cannot be considered to have laid down a “constitutional requirement that prevailing market prices must be accepted as the standard for testing the reasonableness of operating costs.” General Telephone Company of Upstate New York v. Lundy, 17 N.Y.2d 373, 271 N.Y.S.2d 216, 223, 218 N.E.2d 274, 279 (1966).

The respondent concedes’ that the commission, for the purpose of fixing rates, may disallow excessive and unreasonable payments. Its position basically is that because in the 1962 rate case the commission ceased its examination into transactions between Midwest and Automatic, upon concluding that the prices paid by Midwest to Automatic were as low or lower than those paid by a nonaffiliated purchaser, the commission in this case should have done likewise, and for it to go further and inquire into the profitability of such transactions amounts to regulation of Automatic and Directory for which the commission has no authority.

Considering the latter argument, the commission did not by its order regulate the affairs of Automatic and Directory. All that it did was regulate the amounts which Midwest paid those companies insofar as it affected the reasonableness of Midwest’s rates. Midwest is the only party subjected to the order of the commission. Respondent asserts that it cannot pay prices it cannot get allowed in rate cases and: “The alternative, if Respondent-Appellant prevails, is to pay higher prices to nonaffili-ates.” Such a threat of self-defeating action hardly rises to the level of a legal argument.

Respondent has cited the case of State ex rel. City of St. Joseph v. Public Service Commission, 325 Mo. 209, 30 S.W.2d 8, 14-15[10—13] (banc 1930), in which the court, in rejecting an argument that a fee paid by a water company to its parent should be disallowed, emphasized the right of the manager of the company to control the methods of rendering service. That was a case in which all of the evidence pointed to the beneficial results of the arrangement there questioned and the commission had apparently accepted such evidence and approved the arrangement. In the St. Joseph case the court stated: “The company has a lawful right to manage its own affairs and conduct its business in any way it may choose, provided that in so doing it does not injuriously affect the public.” (emphasis supplied) 30 S.W.2d 14. Here the commission in effect has found that the dealings between Midwest and Automatic and Directory did “injuriously affect the public.” Whether or not the evidence supports that finding presents another question, to be considered later.

Insofar as the conclusion in the 1962 case is concerned, it has no binding effect in a future rate case. A concise statement of the applicable rule is found in 2 Davis, Administrative Law Treatise § 18.09, 605, 610 (1958), as follows:

“ * * * For an equity court to hold a case so as to take such further action as evolving facts may require is familiar judicial practice, and administrative agencies necessarily are empowered to do likewise. When the purpose is one of regulatory action, as distinguished from merely applying law or policy to past facts, an agency must at all times be free to take such steps as may be proper in the circumstances, irrespective of its past decisions. * * * Even when conditions remain the same, the administrative understanding of those conditions may change, and the agency must be free to act * * *.” (Footnotes omitted.)

Clearly the commission in this case was not bound by the action in the 1962 case.

The commission’s order, in addition to having been authorized by law, must have been supported by competent and substantial evidence. The circuit court found that it was not and respondent here supports that conclusion.

The commission’s findings of fact on this issue are as follows:

“Company contends that its relationship with Automatic is one of supplier and customer, that it is not committed to buy from any particular manufacturer or supplier and that it obtains ‘uniform high quality materials at the lowest price.’ Company urges that its transactions with Automatic be judged by a reasonableness standard and the mere fact of affiliation should be discounted if they are reasonable. The test suggested is whether ‘the prices paid by the Company for equipment and supplies to affiliates are as low or lower than prices paid by non-affiliates for comparable items.’ In support of this test, Company offered evidence that tended to prove that the prices it paid for equipment and supplies were as low or lower than the prices charged to independent or non-Bell companies.

“We cannot accept this contention. To hold that the Company’s transactions with Automatic are reasonable merely because Automatic charges similar prices to non-affiliates is to ignore the realities of the market in which Automatic competes.

“Sixty five percent (65%) of the independent (non-Bell) telephones are owned by companies with manufacturing subsidiaries similar to Automatic. General owns 46.6 percent of this total. Companies without affiliates constitute the remaining 34.4 percent of the independent market. This 34.4 percent of the market is spread among 1700 companies. Two factors became readily apparent. General Telephone Companies dominate the independent market and the market for non-affiliated independent telephone companies is fragmented.

“From its position of overwhelming dominance of the independent market, the G.T.&E. system could virtually dictate prices. From 1956 to 1971 General purchased 96.66 percent of its equipment and supplies from Automatic and in 1972 it purchased 94.5 percent. 77.84 percent of Automatic’s total sales are to the G.T.&E. system and this figure is increasing. Clearly Automatic is dependent upon the General system. The G.T.&E. system should be able to command considerable price concessions from its dominant bargaining position. Yet, the evidence produced by the Company reveals that its price comparisons are based on catalogue or list prices. It is difficult to believe that there can be a rational comparison of prices on this basis. While there is some evidence that Automatic does give limited discounts to G.T.&E. system companies, it is far from convincing.

“The evidence produced by Company on discounting revealed Automatic has no systematic discounting policy and the frequency and amount of discounting is arrived at by the ‘judgment of management’ rather than a rational discounting policy based on the economic realities of mass purchasing by a dominant consumer.

“If the affiliated G.T.&E. system companies, as a single bargaining unit, were free to purchase their equipment and supply needs from the lowest bidder in a truly competitive market, we believe lower prices could be obtained than those that have been charged by Automatic in the past. In that event, the benefit of mass buying would accrue to the customers of Company rather than to its parent, G.T.&E.

“Company has failed to produce convincing evidence that the prices charged by Automatic for equipment and supplies are reasonable. In view of the realities of the market place, the test offered by Company is not a proper one. We do not believe that the prices charged by Automatic have been reasonable. It will therefore be necessary to adjust the rate base of Company to compensate for past overcharges.”

The statistical data included in the findings are not questioned. What is questioned is the commission’s conclusion, based upon such data and the record testimony that the cost-comparison test, urged by Midwest, is not a proper standard for determining the reasonableness of the transactions between Midwest and Automatic and Directory. The circuit court agreed with respondent that such findings were based upon surmise and speculative evidence. In this court, respondent points to specific findings and the testimony which it says is the sole support for the particular finding and concludes that the trial court correctly assessed the value of the supportive testimony. Thus, on the finding: “The G.T.&E. system should be able to command considerable price concessions from its dominant bargaining position,” respondent points to the testimony of staff witness Burkhardt that it is his opinion that the volume of GT&E purchases should result in “tremendously discounted prices from the prices that a smaller purchaser would receive.” This, however, is not the only testimony which would support the commission’s finding. Respondent’s witness Kircos was asked “ * * * [A] 4S.6 percent interest in the market if operating as a unified whole would have a considerable impact on prices and on pricing policies within the industry?” He replied, “Acting as one purchasing body it could; yes.” Again, in support of the claimed benefit of the GT&E— Automatic affiliation, Kircos stated: “Automatic, because of its volume purchases for resale to both affiliates and non-affiliates, has been able in the case of many supply items to arrange large quantity discounts.” This court must reject the contention that the specific finding above quoted was not supported by competent and substantial evidence.

The next finding specifically attacked is that, if GT&E affiliated companies were free to act as a unit in a competitive market, “lower prices could be obtained than those that have been charged by Automatic in the past.” This was a conclusion which the commission could reasonably reach on the basis of the evidence. Competition is recognized as a desirable and effective means of price control. Here there was no evidence of competition for the business of the GT&E affiliates. Because of the affiliation, GT&E operating companies, such as Midwest, looked to Automatic as the source of their requirements for equipment and supplies. In the 1956-1971 period, Midwest made 96.66% of its purchases from Automatic. The absence of competition and the leverage which the combined purchasing power of the GT&E operating affiliates might exert in a freely competitive market, viewed in the light of the high profitability of Automatic’s operation, adequately support the commission’s finding.

Respondent attacks the finding that comparison of prices paid Automatic by GT&E affiliates with prices paid by non-affiliates is unacceptable because such comparison would ignore the realities of the market in which Automatic competes. Respondent asserts that this conclusion can find support only in an expression of opinion by witness Burkhardt. The opinion of a qualified expert may amount to substantial and competent evidence. 2 Am.Jur.2d, Adm.Law, § 395, p. 201 (1962). Neither before the commission nor the courts have Burkhardt’s qualifications been questioned. Even without Burkhardt’s opinion, the commission would have been able to arrive at such conclusion, based primarily upon the fragmented market among the 1700 nonaf-filiated independent telephone companies contrasted with the concentrated, controllable buying power of the GT&E affiliates.

Finally, respondent challenges specifically the commission’s rejection of cata-logue or list prices as the basis of price comparisons. Respondent asserts that this finding is supported only by hearsay testimony of Burkhardt. Aside from Burk-hardt’s testimony, respondent’s witness Kir-cos testified that, although Automatic did not discount from its two published price lists, one for affiliated and one for nonaffi-liated purchases, it did give one nonaffiliate the benefit of the lower affiliated price list. Although Kircos stated that Automatic does not offer discount from its published lists, it is obvious that the benefit afforded the one nonaffiliate is in practical effect a discount. Furthermore, the Midwest witness Manley, who produced the exhibit comparing Automatic and other suppliers’ prices, acknowledged that some of the other suppliers do give volume discounts. Again, support for the finding attacked is not limited to Burk-hardt’s testimony.

Inasmuch as the commission’s rejection of the test advanced by Midwest was based upon competent and substantial evidence of record, the adoption by the commission of a different measure of the reasonableness of the expenditures in question cannot be said to have been arbitrary or capricious or unauthorized by law. If the commission has the power and duty to inquire into the reasonableness of the transactions in question, the commission, as the repository of the legislative rate-making power entrusted to it, has the right to determine a reasonable standard of judgment consistent with statutory and constitutional limitations. The limited authority of a court upon judicial review of the commission’s action does not encompass a substitution by the reviewing judicial authority of its judgment for that of the commission. That, in essence, is what the circuit court did in this case and therein it erred.

Given the legal and factual basis for the commission’s determination that the profitability of the transactions should be the measure of their reasonableness, the problem remains as to whether the conclusion that the profits were unreasonable and justified the adjustment ordered was supported by substantial and competent evidence.

Staff witness compared the return on equity for Automatic with the records of electrical equipment and electronics manufacturing groups and also with broad general industrial groups. Although acknowledging that Automatic and Western Electric are not wholly comparable, a comparison with that company was also presented. The witness found Automatic’s average return on equity for the years 1962-1971 to have been 22.4%. The average return of various electrical and electronics groups for the same period ranged from 11.2% to 12.0%. The returns of larger general groups of industrial concerns averaged between 10.6% and 12.4% for the same period. The average return on equity for Western Electric for the period was 10.5%.

Comparing net income as a percentage of sales for the same period, Automatic’s return was 7.5%. Western Electric averaged a return of 4.6%. The broader spectrum industrial groups had an average return of between 4.7% and 6.0%. The electrical and electronic groups had an average return of from 4.2% to 4.6%.

The evidence on behalf of Midwest showed a return on equity for the period in question of from 9.95% to 12.01%, the latter figure for 1971. The difference between Midwest’s evidence and staff testimony arose from a difference as to the treatment of goodwill on a part of GT&E’s equity in Automatic. The staff ignored goodwill which Midwest claimed amounted to some $93,000,000. Its return on equity figures was based upon a 40-year amortization of goodwill.

The commission rejected both approaches. It did conclude that $34,725,000 goodwill should be included in the computation of the GT&E equity in Automatic, to be amortized over a 25-year period.

This court cannot say that the commission’s conclusion that Midwest was charged “inflated” prices by Automatic was not supported by substantial and competent evidence. The comparison evidence presented permitted the commission to find that Automatic did receive excessive profits and was able to obtain such return with a limited degree of risk, attributable to its relationship with GT&E and its affiliated companies.

The rate of return on equity of 11.5%, which the commission found to be reasonable and to be applied as the basis for adjusting the value of Midwest’s plant, was, as the commission found, “in the ten-twelve percent return which is considered to be the norm.”

With respect to Directory, the commission made the following findings:

“1. Directory Revenues. Company’s transactions with its affiliate, Directory, presents an issue closely analogous to that raised by its transactions with Automatic. Directory, according to Company, provides a necessary and specialized service. Company contends that there are only a few months in the year, just prior to the issuance of new directories, that the services of Directory are required and that it would be uneconomical for it to maintain a staff to perform these seasonal functions. In light of the specialized nature of Directory’s services the prices charged by Directory are reasonable.

“Staff points out that Directory has one hundred percent of the G.T.&E. system’s business; that in 1972 77.7 percent of Directory’s total revenue was derived from transactions with affiliated companies; that from 1968 to 1972 Directory had an average return on equity of 27.6 percent; and that in the test year Directory earned 25.93 percent return on equity. Staff contends that the prices charged by Directory has no comparable competitors and deals primarily in a captive market.

“We find that Company failed to carry its burden of proof on the issue of the reasonableness of prices charged by Directory. We find that an adjustment to miscellaneous revenue in the test year will be necessary to compensate for these over-charges.

“In view of Directory’s relationship with and dependence upon Company, we find it appropriate to make an adjustment in an amount equal to the excess in return on equity over the norm for a corporation the nature of Directory in the broad spectrum of American industry and commerce. We find that eleven percent return on equity to be proper. We feel that risks attendant to Directory’s Operations are less than those attendant to a manufacturer like Automatic. We are also mindful of the nature of the financing required by Directory and point out that less debt is necessary than is required for a manufacturing concern such as Automatic. Therefore, an adjustment in the sum of $36,369 is necessary to reflect the excess in earnings represented by the difference in 25.93 percent return on equity actually earned in the test year and the eleven percent return on equity we deem appropriate.”

Midwest’s objection to these findings is based largely upon the commission’s rejection of its evidence designed to show that the arrangement between Directory and Midwest was fair and reasonable. That evidence was aimed to show that Directory provided a specialized service for the operating arms of GT&E more economically than such operating companies might do if they had their own directory staff.

Again the commission had the right and duty to weigh such evidence against the evidence that the arrangement between Directory and Midwest was arrived at in a noncompetitive manner. The commission had evidence that Directory’s net income from its nonaffiliated competitive business was half the rate of the income from its affiliated business. When asked why it is so much more profitable for Directory to deal with affiliated companies, the company witness stated that he could not answer the question. Upon the entire record, the finding of the commission is not lacking in evidentiary support.

Respondent does have reason to complain that the record does not disclose the figure arrived at by the commission for the value of Automatic upon which it determined the rate of profit found to be reasonable should be applied. Nor does the record disclose how the commission arrived at its figure of $34,725,000 as goodwill to be included in the GT&E equity in Automatic. Finally, the record further fails to disclose how the commission arrived at the adjustment in the rate base and depreciation, based upon the transactions with affiliates. The staff did present an exhibit which detailed the adjustment based upon the staff recommendation that goodwill be disallowed. That recommendation was not followed, and the record does not show the recomputation, based upon the value, likewise not shown, of the GT&E equity in Automatic. The matter must be remanded to the commission for a further hearing for determination of these matters. State ex rel. City of St. Louis v. Public Service Commission, 341 Mo. 920, 110 S.W.2d 749 (banc 1937).

The circuit court also sustained the respondent’s contention that the order of the commission was retroactive rate making, inasmuch as it adjusted the value of respondent’s property purchased from Automatic back to 1956. The circuit court erred in so concluding. The order of the commission in no manner affected the rates which Midwest had previously charged and received from its customers. The order merely held that future rates must be adjusted to take cognizance of the inflated profits resulting from its affiliate’s dealings. This is not retroactive rate making.

The circuit court also agreed with respondent’s contention that the rate of return allowed by the commission was confiscatory and failed to allow a fair rate of return to Midwest. The following shows the rates of return here involved:

Prior Company Commission Rate Request Allowed
On Common Equity 8.79% 13.80% 11.5%
On Net Original Cost 7.42 9.56 8.58
On Fair Value 7.30 9.41 8.44

In this court respondent would support the trial court’s finding on this issue on the grounds that the returns allowed by the commission were predicated upon an embedded cost of long term debt of 6.94% and of short term debt of 6.75%, both of which were below the prime rate at the time of the order. Respondent argues that “as short term debt is renewed or otherwise refinanced, the interest cost goes up and the Company is immediately prevented from even earning what the Commission authorized.”

Respondent does not deny that the record contains evidentiary support for the rates of return allowed by the commission. Although the commission did not make an express allowance for “surplus and contingencies,” the commission’s order evidenced an awareness that such consideration was required in arriving at a fair return for Midwest. This court will not presume that the commission ignored these factors in arriving at the rate of return. There was no evidence that major debt financing was in the immediate plans of Midwest. Short term interest rates do fluctuate, but the commission is not required to be prescient in this regard and attempt to predict the future course of such rates. The traditional test year concept employed by the commission has not been shown to have been unreasonable. Respondent failed to sustain its heavy burden of overcoming the commission’s finding on the rate of return. The circuit court erred in concluding otherwise.

The judgment of the circuit court is reversed. The cause is remanded to that court with directions to enter a new judgment affirming the order of the commission except insofar as the order failed to disclose the value of Automatic, how the goodwill to be included in such value was determined and how the commission arrived at the adjustments in the rate base and depreciation, based upon the transactions with affiliates, and ordering further proceedings with respect to such matters in accordance with the views herein expressed.

Reversed and remanded.

All concur.


author: BILLINGS, Chief Judge.

text:
    CARGILL INCORPORATED, COMMODITY MARKETING DIVISION, Plaintiff-Respondent, v. Duncan HALE, Defendant-Appellant.
    No. 10178.
    Missouri Court of Appeals, Springfield District.
    May 21, 1976.
    Motions for Rehearing or Transfer to Supreme Court Denied June 2, 1976.
    Application to Transfer Denied July 12, 1976.

      James D. Sickal, Blanton, Blanton, Rice & Sickal, Sikeston, for plaintiff-respondent.
    Robert A. Dempster, Phillip J. Barkett, Jr., Dempster, Yokley, Fuchs & Barkett, Sikeston, for defendant-appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Plaintiff was awarded damages by a jury for the defendant’s breach of contract to sell 9000 bushels of soybeans. The trial court rejected defendant’s contention that the statute of frauds contained in § 400.2-201, RSMo 1969, barred plaintiff’s enforcement of the contract. We affirm.

Plaintiff operates a grain elevator at New Madrid, Missouri, and buys and sells grain. On July 22, 1974, the defendant telephoned plaintiff’s manager and agreed to sell 9000 bushels of No. 2 yellow soybeans for $7.37 per bushel. Delivery date, according to the manager, was to be by August 9 at plaintiff’s elevator. Following the telephone conversation in which plaintiff’s manager agreed to the purchase, the manager prepared a written confirmation of the sale from the notes he made during the telephone call and mailed it to the defendant at his Advance, Missouri, address.

The confirmation agreement, setting forth the foregoing matters, was received by the defendant on July 26. The market price for soybeans had risen to $8.10 per bushel that day. On August 6, when the market price of soybeans was $8.21 per bushel, the defendant’s son notified plaintiff’s manager by telephone that defendant’s soybeans would not be delivered. No explanation was offered. On the same date, the written confirmation, unsigned by the defendant, was mailed to the plaintiff.

By reason of the August 6 telephone call advising defendant did not intend to deliver the soybeans and receipt of the confirmation agreement on August 7, the plaintiff purchased 9000 bushels of soybeans on the latter date to cover its commitments. Plaintiff paid $8.21 per bushel for the soybeans so purchased.

It was the defendant’s trial position that in his July 22 telephone call he had agreed to deliver the beans by August 15 and since the confirmation agreement sent to him showed the earlier date of August 9, he had notified plaintiff he would not deliver his soybeans to plaintiff and returned the agreement. He acknowledged the price of soybeans rose to a high of $9.54 per bushel by fall.

The parties are in agreement that provisions of the Uniform Commercial Code apply to the transaction. Soybeans are goods within the meaning of § 400.2-105, RSMo 1969, and growing crops capable of severance as defined in § 400.2-107, RSMo 1969. And, as defendant contends and plaintiff concedes, § 400.2-201, RSMo 1969, is applicable because the instant transaction involved a contract for the sale of goods.

The relevant portion of § 400.2-201, RSMo 1969, provides:

“(1) Except as otherwise provided in this section a contract for the sale of goods for the price of five hundred dollars or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten days after it is received.
(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable
(b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted . .

In our review, we consider the evidence and inferences in support of the jury’s verdict in the light most favorable to the plaintiff, and ignore the defendant’s evidence except insofar as it aids plaintiff’s case. Parker v. Stern Bros. & Co., 499 S.W.2d 397 (Mo.1973); Dollar v. Ozark Engineering Co., 500 S.W.2d 727 (Mo.App.1973).

In this appeal the parties have confined their appellate arguments to the question of whether or not the defendant was a merchant and the applicability or non-applicability of paragraph (2) of § 400.2-201, RSMo 1969. A merchant is defined by the Uniform Commercial Code [§ 400.2-104(1)] as a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction. By reason of our conclusion that paragraph (3)(b) of § 400.2-201, RSMo 1969, governs the disposition of this appeal, we reluctantly forgo the proffered temptation to cast a ray of knowledge, if any, on whether or not the defendant-farmer in this case, selling his own soybeans, could be categorized a merchant under the U.C.C.

The trial transcript reflects the following unqualified admission was extracted from the defendant upon cross-examination:

“Q. Didn’t you agree to sell these beans to [plaintiff’s manager] over the phone for a certain price?

A. Yes, sir.”

We are of the opinion that this testimony of the defendant constitutes an admission that a contract for sale of the soybeans was made with the plaintiff and falls squarely within the provisions of paragraph (3)(b) of the statute. Thus the contract is enforceable by the plaintiff upon defendant’s breach.

“Under the statute as it now stands [UCC 2-201(3)(b)], as to the sale of goods of the value of $500 or more, the party charged cannot admit the fact of the contract in the matter provided and at the same time claim the benefit of the statute of frauds. It is the intent of the statute of frauds, that if, after the petition or cross action is filed, the party charged admits to contract in the case thus pending, the statute of frauds as a defense shall not be available to the party charged; but on the contrary the case thus made shall be determined on the merits . . .. This provision was designed to prevent the statute of frauds itself from becoming an aid to fraud, by prohibiting one claiming the benefit of the statute who admits in the case the oral contract sued upon.” Garrison v. Piatt, 113 Ga.App. 94, 147 S.E.2d 374, 375 (1966).

We hold that defendant’s admission that a contract for sale of the subject soybeans was made prohibits him from asserting the statute of frauds as a defense in this case.

During the course of plaintiff’s manager’s testimony the trial judge asked the witness if he and the defendant reached an agreement as to the delivery date of the soybeans. The witness replied in the affirmative and stated August 9. Thereafter, defendant objected to the question by the court and the witness’s answer and requested they be stricken and the jury instructed to disregard the question and the answer. The court sustained the objection and so instructed the jury. Defendant asked for no further relief and cannot now convict the trial court for not taking further action sua sponte, assuming any merit in the contention. Price v. Bangert Bros. Road Builders, Inc., 490 S.W.2d 53 (Mo.1973); Burian v. Dickens, 527 S.W.2d 26 (Mo.App.1975). We might add that both by oral testimony and the written confirmation plaintiff’s evidence was sufficient to show August 9 was the agreed upon delivery date.

Defendant’s final point is that the amount of the verdict was inadequate and therefore “against the evidence, the greater weight of the credible evidence, and the law under the evidence.” The complaint about the size of the jury’s verdict was not included in defendant’s motion for new trial and thus has not been preserved for appellate review. Supreme Court Rule 78.07, V.A. M.R. Such general assignment as “The verdict is against the evidence; further the verdict is against the greater weight of the credible evidence in the case; and further because the verdict is against the law under the evidence” as contained in defendant’s motion for new trial preserves nothing for review. Robbins v. Robbins, 328 S.W.2d 552 (Mo.1959); Bremen Bank & Trust Co. v. Bogdan, 498 S.W.2d 306 (Mo.App.1973). Furthermore, a party ordinarily cannot complain on the grounds that the judgment against him was not as large as it should have been. Millard v. Meador, 350 S.W.2d 100 (Mo.App.1969).

The judgment is affirmed.

All concur.

      . Alabama, Arkansas and Kansas have ruled that a farmer who sells only his own crops is not the type of professional dealer who qualifies as a merchant under the U.C.C. Loeb and Company, Inc. v. Schreiner, 294 Ala. 722, 321 So.2d 199 (1975); Cook Grains, Inc. v. Fallis, 239 Ark. 962, 395 S.W.2d 555 (1965); Decatur Cooperative Ass’n v. Urban, Kan., 547 P.2d 323 (1976).
      Illinois and Ohio have held a farmer can be a merchant when selling his own crops. Continental Grain Co. v. Harbach, 400 F.Supp. 695 (N.D.Ill.1975); Sierens v. Clausen, 60 Ill.2d 585, 328 N.E.2d 559 (1975); Campbell v. Yokel, 20 Ill.App.3d 702, 313 N.E.2d 628 (1974); Ohio Grain Co. v. Swissheim, 40 Ohio App.2d 203, 318 N.E.2d 428 (1973).


author: WEIER, Presiding Judge.

text:
    Harold E. DOOLEY, Plaintiff-Appellant, v. Sue G. DOOLEY, now Sue G. Trussell, Defendant-Respondent.
    No. 36721.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 25, 1976.
    Bollow, Crist, Bollow & Wallace, Dan Bollow, Shelbina, for plaintiff-appellant.
    Falzone & Schirmer, Wayne E. Schirmer, Moberly, for defendant-respondent.
   WEIER, Presiding Judge.

Harold Dooley obtained a divorce from Sue Dooley on January 22,1973. Under the terms of the decree, Tracy Denise Dooley, born May 9, 1970, and Lynnette DeLayne Dooley, born August 12, 1966, were awarded to plaintiff father except for the summer months when custody was placed in the defendant mother. Defendant was also given the custody of the two girls on two weekends of each month during the time that the children were in the custody of the plaintiff father. This appeal is from a decree of modification which changed the custody provisions of the divorce decree by placing the children with Sue Trussell, the mother who had remarried after the divoree, with rights of visitation in the father and a support order of $40.00 per week for the children’s maintenance.

In reviewing this court tried matter, we review the record on both the law and the evidence, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses; and we sustain the judgment below “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); Rule 73.01(d). Briefly, the facts indicated that Sue Trussell, formerly Sue Dooley, the mother, had remarried after the divorce and had lived with her second husband some twenty months at the time that the decree of modification was entered. Although her behavior pattern prior to the divorce had been most abnormal, she and her second husband had apparently established a stable marriage; they lived in a suitable home in a pleasant location, and were making sufficient money at their employment to adequately care for the children. The defendant father during the same period of time had made frequent changes in those persons entrusted with the children while he was employed, and at the time of the modification was living in an apartment occupied by him and his third wife without adequate space. The court concluded that it would serve the best interest of the children that they be placed with the defendant mother under all the facts that were presented in the evidence at the time of the several hearings held by the court. Because of the court’s concern and solicitude with respect to the welfare of the children, the child welfare office of the Division of Family Services was ordered to continue supervision over the children and report to the court the condition of the children at least every six months. We have examined the record carefully and have concluded that there is substantial evidence to support the judgment of the trial court. Having also concluded that there was no error in the application of the law to the facts, and that a lengthy opinion would have no precedential value, we affirm the judgment under the provisions of Rule 84.-16(b).

DOWD and McMILLIAN, JJ., concur.


author: RENDLEN, Judge.

text:
    STATE of Missouri, Respondent, v. John DiLIBERTO, Appellant.
    No. 36454.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 25, 1976.

      Karl F. Lang, St. Louis, for appellant.
    Thomas W. Shannon, Pros. Atty., Stephen A. Moore, Asst. Pros. Atty., St. Louis, for respondent.
   RENDLEN, Judge.

John DiLiberto appeals his conviction of “misconduct in office,” a misdemeanor under § 558.110, RSMo 1969, V.A.M.S., alleging as error: (1) insufficiency of the information; (2) the State’s failure to make a submissible case; (3) erroneous admission of hearsay testimony; and (4) failure to define the terms “willfully” and “maliciously” appearing in the main verdict director. Unfortunately, the prosecutor’s office has not favored this court with a brief and the only assistance comes from that supplied by appellant.

In late March of 1972, Steven McClay, involved in an automobile accident in the City of St. Louis, received a traffic summons ordering him to St. Louis City Court No. Two on May 2. On that date McClay and his mother, Mrs. Norma Downey, went to the City Court and checked the posted docket for Steven’s case. While there they were approached by a stranger who conducted them into the courtroom (the court was not then in session) and directed them to a man seated at a small desk to the left of the judge’s bench. The man at the desk, whom Mrs. Downey later identified as appellant, took McClay’s summons, asked if an accident was involved, whether they had insurance and how they pleaded. Mrs. Downey replied affirmatively to the first two questions and said the plea was guilty. Appellant advised her the fine with costs totaled $38 whereupon Mrs. Downey wrote a check in that amount payable to the City, gave it to appellant and later received the cancelled check from her bank bearing the endorsement of the City Clerk’s Office. On May 2,1972, apparently, after Mrs. Downey had departed, the charge against Steven McClay was nolle prossed for want of evidence, thus retention of any fine or cost was clearly improper.

Appellant first contends the information failed to state facts constituting an offense against the State of Missouri. Rule 24.01, V.A.M.R., requires that an information contain a “plain, concise and definite written statement of the essential facts constituting the offense charged.” (Emphasis ours). Failure of the information to charge a crime is fatal to the proceeding as the court acquires no jurisdiction to proceed and whatever transpires under such information is a nullity. State v. Muchnick, 334 S.W.2d 386, 390[8] (Mo.App.1960). A sufficient indictment or information is an indispensable prerequisite to a valid verdict, judgment and sentence. State v. Cantrell, 403 S.W.2d 647 (Mo.1966); State v. Hasier, 449 S.W.2d 881, 884[5] (Mo.App.1969).

We must determine if the information sufficiently describes an offense under § 558.110, RSMo 1969, V.A.M.S. The statute creating the offense employs generic terms and does not individuate the offense by setting out facts constituting the crimes. In such instances, it is insufficient to frame an information in the words of the statute; instead it must be sufficiently specific so the court can determine from the facts alleged whether a crime has been charged as a matter of law, State v. McCloud, 313 S.W.2d 177 (Mo.App.1958), and notify defendant of the acts which he is alleged to have committed. State v. Hasler, supra at 884[6]. Here the information charged:

“That John DiLiberto in the city of St. Louis, on the 2nd day of May, 1972, being a Deputy Marshal of the City of St. Louis, holding an office of public trust, unlawfully did commit'willful and malicious misconduct under color of his office as Deputy Marshal by demanding and accepting a personal check in the amount of thirty-eight dollars, from Mrs. Norma Downey in the courtroom of City Court Number Two . of the City of St. Louis, Municipal Court Building, 1320 Market Street, St. Louis, Missouri; said John DiLiberto falsely representing to Mrs. Norma Downey that said check would apply to any fine to be assessed in the then pending traffic violation of one Stephen . W. McClay when in fact no fine was ever assessed in said traffic violation; contrary to the form of the Statute in such case made and provided and against the peace and dignity of the State.” (Emphasis ours)

This describes appellant’s representation to Norma Downey (the sine qua non of the offense charged) as contingent upon a future event, i. e. the check was received on condition it “would apply to any fine to be assessed” in Steven McClay’s case. It does not distinctly and substantially charge the alleged false representation was committed with “corrupt, partial, malicious, or improper motives and above all with the knowledge that it was wrong,” State v. Young, 504 S.W.2d 672, 674 (Mo.1974); State v. Boyd, 196 Mo. 52, 94 S.W. 536, 542 (1906). The allegation is overly broad and would include the case of an innocent-false statement which is no crime under the statute. The fact the fine was never assessed is insufficient to supply the pleading requirement of appellant’s wrongful intent when making the representation. The earlier language in the information that appellant “unlawfully did commit willful and malicious misconduct under color of his office” is the generic statutory description of the crime and does not satisfy the requirement that the information must “individuate the offense with such particularity as to notify the defendant of the acts which he is alleged to have committed.” State v. Hasler, supra at 885. An allegation ascribing Scienter is indispensable to the charge and without it the information must be dismissed.

While they are perhaps meritorious, we need not reach appellant’s other allegations of error. “This is not to say, however, that the criticisms made in the other assignments should not be noticed by the state and, where justified, be avoided in the event of another trial.” State v. Harris, 313 S.W.2d 664, 671 (Mo.1958). Reversed and remanded.

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

      . Section 558.110 provides: “Every person exercising or holding any office of public trust who shall be guilty of willful and malicious oppression, partiality, misconduct or abuse of authority in his official capacity or under color of his office, shall, on conviction, be deemed guilty of a misdemeanor.”