text:
    C_ L_ R_, Petitioner-Respondent, v. L_ B_ R_, Respondent-Appellant.
    No. 10224.
    Missouri Court of Appeals, Springfield District.
    Aug. 16, 1977.
    Charles C. Shafer, Jr., P. C., by Jerry Renter, Kansas City, for respondent-appellant.
    William Icenogle, Camdenton, for petitioner-respondent.
   STONE, Judge.

In this litigation instituted in November 1973 as an action for divorce but on January 1, 1974, transmogrified into a proceeding for dissolution of marriage [§ 452.-415(2); In re Marriage of Dodd, 532 S.W.2d 885, 886(1) (Mo.App.1976)], Lois, defendant in the action for divorce, brings the case here as appellant, and Charles, who initiated the action for divorce, is respondent here. [All statutory references are to RSMo Supp. 1975; 24 V.A.M.S. (1977).] A brief factual review is necessary for an understanding of (a) Lois’ single appellate complaint bearing upon division of the marital property and (b) our disposition of the appeal.

While living in Independence, Missouri, and employed in a nearby industrial plant, Charles met Lois. Each had been theretofore twice married and divorced, and each had children by those former marriages. The transcript picks up the relationship of Charles and Lois when he “moved in” with her and they lived together for an undisclosed period before they were married in Oklahoma on April 11, 1967.

The hapless path that this marital venture was destined to follow to a disastrous end was forecast within the first year or so when, on account of domestic difficulties, Lois twice left home for two-month visits with a sister in Georgia. In fact, the record before us reflects a continuing and exacerbating marital course of crimination and recrimination, charge and countercharge, admittedly accompanied and accentuated on the part of plaintiff husband by the liberal and unrestrained use of vile names and filthy epithets (as he readily conceded) addressed to both his wife and his stepson, Mike, and on the part of defendant wife (so the transcript indicates) by her frequent descent to a gutter level of name-calling. Since a detailed recitation of the numerous episodes, outbursts, paroxysms and tantrums reflected in the transcript would neither aid in proper determination of this appeal nor make any contribution to the law or literature, we simply record without elaboration the fact of their occurrence as reflecting the conduct of the parties during the marriage, that being one of the four factors which courts are specifically directed to consider in the division of marital property. § 452.330, subsec. 1(4); Conrad v. Bowers, 533 S.W.2d 614, 620(6) (Mo.App. 1975).

However, notwithstanding the numerous indignities which each visited on the other throughout the duration of the marriage and the frequent periods of separation following stormy scenes in which the parties would vent their spleen on each other, the final separation did not come until September 25, 1973. When on that date, in another of their oft-recurring domestic donnybrooks Charles allegedly began to cuff her around and told her to get out, Lois retaliated by shooting and wounding him. The record does not disclose what area of Charles’ anatomy was violated by the bullet, but we are apprised that the resulting injury sent Charles to the hospital for eleven days. The next day after this final brouhaha Lois, accompanied by Mike, left the family home for the last time. Subsequently, Lois was charged with some criminal offense (not here specified) but acquitted on her theory of self-defense.

Although the record does not reveal the exact age of either party, we are informed that sometime during the four-year period from 1967 to 1971 Charles retired at his place of employment and thereafter drew two checks each month, to-wit, a $158.80 “pension” check from his employer and a $199 social security check, which indicates that he probably reached the age of 65 years during that period. From all of the circumstances disclosed in the transcript, including the fact that her son Mike was only 18 years of age at the time of trial in November 1975 and the fact that she then was employed at $700 per month in a responsible position, we think it fairly infera-ble that Lois is substantially younger than Charles. Although Lois had received no governmental checks or benefits for herself, after Mike’s father died in July 1968 she “drew $138 per month from social security . because of Michael.”

In 1971, the home base of the principals in this running marital feud had moved, under circumstances shortly to be noted, from Jackson County to the house on a rough 60-acre Ozark hill country tract (the farm), of which only 20 to 25 acres were “open land,” and to which the real estate broker-witness for Lois euphemistically referred as a “semi-retirement farm.”

Upon the death of their father in 1968, Charles and each of his four siblings acquired by descent an undivided one-fifth interest in the farm. In 1971, Charles purchased all of his siblings’ interests in the farm. Since this transaction was made on the basis of a then market value of $7,000 for the farm, the aggregate cost of the undivided one-fifth interests of the four siblings was $5,600. “[CJlosing costs” imposed on Charles increased the amount required of him to $5,950, which was raised (a) by borrowing $5,250 from a bank in the nearby village upon a note signed by both Charles and Lois and secured by a deed of trust on the farm, title to which was taken in the mortgagors’ joint names, and (b) by borrowing $700 from “Mike’s money” held by Lois.

The real estate broker-witness for Lois at the trial of this case in 1975 was the broker who in 1971 had represented Charles’ siblings and in that capacity presumably had acted in good faith and had exercised his best judgment in negotiating the sale of their undivided interests in the farm to Charles based on a then market value of $7,000 for the farm. However, upon trial this broker-witness declared that “I felt that we sold [the farm] below its market value at that time [in 1971]” and “I thought the property should have sold for ten to eleven thousand dollars . . . .” (Emphasis ours)

After finding that the marriage was “irretrievably broken,” the court made, inter alia, these additional findings and decretal provisions:

(1)A finding that Charles owned an undivided 20% interest in the farm which he had inherited from his father and that said 20% interest was not marital property.

(2) A finding that Charles owned an undivided 36% interest in the farm “which he received as a gift from his brothers and sisters” and was not marital property.

(3) A finding that the remaining 44% interest in the farm was marital property.

(4) Decretal provisions awarding to Charles the farm and the “household goods and furniture” in the house on that farm.

(5) A decretal provision ordering Charles to assume the indebtedness to the bank secured by deed of trust on the farm and to hold Lois harmless from any liability therefor.

(6) A decretal provision that Charles pay Lois $3,800 (a) as payment for her interest in the farm and in “items” of used furniture in the house and (b) as reimbursement of the $700 advanced by Lois from Mike’s funds when the undivided interests of Charles’ siblings were purchased. If Charles could not raise $3,800 to make the decreed payment within 45 days, upon his application the court would make such further orders “as necessary to arrange for the payment of said money by decreeing the terms of a promissory note and [second] deed of trust” on the farm.

Although the reasoning by which the trial court arrived at the percentages in findings (2) and (3), supra, was not enucleated by the trial court in the “Judgment Entry” or elsewhere in the record, the explanation appears to be that the difference between (a) the higher figure of $11,000 in the “thought” of Lois’ real estate broker-witness that “the property should have sold for ten or eleven thousand dollars” and (b) the agreed market value of $7,000 on which the sale of the siblings’ undivided interests to Charles was made in 1971, was $4,000 or approximately 36% of $11,000.

The sole “Point Relied On” in appellant Lois’ brief is that “[t]he trial court erred in awarding the respondent [Charles] an undivided 36% interest in the family farm as a gift from his family because the family farm was purchased subsequent to the marriage with the title in the joint names of husband and wife.” Since our appellate review is limited to those issues presented and preserved in “Points Relied On,” we attend only that quoted complaint. Pruellage v. DeSeaton Corp., 380 S.W.2d 403, 405(3) (Mo.1964); Ledbetter v. Ledbetter, 547 S.W.2d 214(1) (Mo.App.1977); Freshour v. Schuerenberg, 495 S.W.2d 116, 118(2) (Mo.App.1973); Del Monte Corp. v. Stark & Son Wholesale, Inc., 474 S.W.2d 854, 857(2) (Mo.App.1971).

Consideration of the facts presented in the transcript and review of appellant’s authorities constrain the conclusion that the afore-mentioned point is well-taken. However, in our view of the case we need not and accordingly do not engage in a protracted discussion of either the facts or the law bearing upon appellant Lois’ complaint anent the improper characterization or categorization of an undivided 36% interest in the farm as non-marital property.

In appellate review of this court-tried case, our concern is whether or not the trial court reached a correct result and not in determining what reasons may have guided the court to its judgment. State ex rel. Patterson v. Tucker, 519 S.W.2d 22, 24(1) (Mo.App.1975); State ex rel. Pope v. Lisle, 469 S.W.2d 841, 842(1) (Mo.App.1971). Even though based on an incorrect theory, the judgment nisi should be affirmed if, on the evidence, such result properly could have been reached. Ehrle v. Bank Bldg. & Equipment Corp. of America, 530 S.W.2d 482, 490-491(7) (Mo.App.1975); Godsy v. Godsy, 504 S.W.2d 209, 211(1) (Mo.App. 1973). Otherwise put, the judgment nisi should be affirmed on appellate review if it reasonably can be sustained. Simpson v. Spellman, 522 S.W.2d 615, 617(1) (Mo.App. 1975); Stallman v. Hill, 510 S.W.2d 796, 798(3) (Mo.App.1974). See also Edgar v. Fitzpatrick, 377 S.W.2d 314, 318(12) (Mo. banc 1964); Producers Produce Co. v. Industrial Commission of Missouri, 365 Mo. 996, 291 S.W.2d 166, 170(1) (Mo. banc 1956); Drydale v. Kiser, 413 S.W.2d 506, 507(2) (Mo.1967); Guild Management Co. v. Oxenhandler, 541 S.W.2d 687, 691(3) (Mo.App. 1976); Phoenix Ins. Co. of Hartford v. Chrysler Corp., 534 S.W.2d 474, 475(1) (Mo. App.1976).

On the record before us, we are satisfied that the trial court arrived at a correct result which appropriately could have been reached even if an undivided 36% interest in the farm had not been misclassified as Charles’ separate property by gift from his siblings and even if the entire undivided 80% interest acquired from Charles’ siblings had been properly declared to have been marital property.

In reaching this conclusion, we have been cognizant that § 452.330 does not require an equal division of marital property but does contemplate and call for a fair and equitable distribution of those assets [Marriage of Schulte, 546 S.W.2d 41, 46(3) (Mo.App.1977); Seiner v. Seiner, 552 S.W.2d 54, 55(1) (Mo.App.1977); In re Marriage of Cornell, 550 S.W.2d 823, 826(2) (Mo.App.1977); In re Marriage of Harkins, 548 S.W.2d 583, 584(1) (Mo.App.1977)]; and, whether or not the decree nisi made such fair and equitable distribution has been reviewed here (as presumably it was considered in the trial court) in the light of the four nonexclusive factors listed in § 452.330, subsec. 1.

The judgment of the Circuit Court should be and hereby is affirmed in all respects, excepting only as to the findings (a) “that in addition, Petitioner owns an undivided 36% interest in said real estate [the farm] which he received as a gift from his brothers and sisters and said 36% interest is not marital property” and (b) “that the remaining 44% interest in and to said real estate is considered as marital property,” which should be and hereby are set aside and for naught held, and the cause is remanded to the Circuit Court with directions to set aside the “Judgment Entry” of November 12, 1975, and to reenter such “Judgment Entry” as amended (1) by deletion of the above-quoted finding (a), and (2) by reentry of finding (b) in the same language excepting only substitution of “the remaining 80% interest” for “the remaining 44% interest.” It is so ordered.

BILLINGS, C. J., and HOGAN, TITUS and FLANIGAN, JJ., concur.

      . Mike S_, then 10 years of age, who was Lois’ son by her second marriage, remembered this and so stated at the trial some eight years later, and Lois likewise testified upon cross-examination. After his mother’s marriage to Charles, Mike lived with his natural father until the latter’s death in July 1968, after which he made his abode with Charles and Lois until their final separation.

      . From the official state highway map, we know judicially that this tract is located some six miles from the nearest village [In re Village of Lone Jack, 419 S.W.2d 87, 91(6) (Mo. banc 1967); Walsh v. Table Rock Asphalt Construction Co., 522 S.W.2d 116, 118(1) (Mo.App. 1975)]; and, as we are permitted to do, from the 1970 United States decennial census report we glean the information that this village was then populated with 106 souls. Varble v. Whitecotton, 354 Mo. 570, 575, 190 S.W.2d 244, 246(4) (banc 1945); Moulder v. Webb, 527 S.W.2d 417, 419(4) (Mo.App. 1975).


source: Caselaw Access Project

author: BILLINGS, Chief Judge.

license: Public Domain

text:
    E. V. THIELECKE, Plaintiff-Appellant, v. Edith L. MUNDAY, Erman L. Brawley, and John Tarvid, Defendants-Respondents.
    No. 10169.
    Missouri Court of Appeals, Springfield District.
    Aug. 17, 1977.
    Joseph Langworthy, Pacific, for plaintiff-appellant.
    No appearance for defendants-respondents.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Plaintiff appeals from the trial court’s action in sustaining the motions to dismiss of defendants Brawley and Tarvid.

Plaintiff filed a two-count petition in the Circuit Court of Reynolds County. Count one sought damages from defendants Mun-day, Brawley and Tarvid for alleged fraud. Count two was against defendant Munday for alleged negligence.

Defendant Munday filed a motion attacking the venue. Defendants Brawley and Tarvid filed a joint motion to dismiss which the trial court sustained. Plaintiff appealed.

The order appealed from does not dispose of all the parties and all the issues and is not a final judgment for purposes of appeal within the meaning of Rule 74.01, V.A. M.R.; Lewis v. Esselman, 512 S.W.2d 423 (Mo.App.1974).

Appeal dismissed.


author: PER CURIAM:

text:
    W. R. CORLEY, Plaintiff-Appellant, v. Fay McGAUGH, Defendant-Respondent.
    No. 10688.
    Missouri Court of Appeals, Springfield District.
    Aug. 17, 1977.

      A. L. Shortridge, Joplin, for plaintiff-appellant.
    Roger K. Fisher, Joplin, for defendant-respondent.
   PER CURIAM:

Plaintiff’s first amended petition was in two counts. Count I named McGaugh and Henning as defendants; Count II named McGaugh and Bowden as defendants. McGaugh answered. Bowden answered and crossclaimed against McGaugh. During the course of the bench-trial, although Henning had defaulted, plaintiff dismissed Count I without prejudice and the court dismissed the action “of the Plaintiff as to . Bowden.” At the conclusion of the court’s memorandum opinion it found “in favor of defendant McGaugh, and against plaintiff on both plaintiff’s petition and defendant’s counterclaim, and ... in favor of defendant . McGaugh and against [Bowden] on her cross-claim.” On the same day (March 10, 1977), a “docket entry” was made. After plaintiff’s motion for a new trial was overruled, he appealed from the “judgment entered in this action on the 10th day of March, 1977.”

Except for the obvious lubberliness, the matter could be viewed as ludicrous. First, plaintiff dismissed his action against a defendant who had defaulted; second, the court seemingly entertained a counterclaim which was never filed; third, and more importantly, no judgment was entered in the ease.

“The right of appeal shall be as provided by law” [Rule 81.01; Dudley Special Road District of Stoddard County v. Harrison, 515 S.W.2d 597, 598[1] (Mo.App.1974)] and § 512.020 grants the right of appeal only to parties who may be aggrieved by “any final judgment in the case.” To be final and appealable, the judgment must purport to be the actual and absolute sentence of the law. This differs from a mere finding that one or more of the parties may be entitled to a judgment. Cochran v. De-Shazo, 538 S.W.2d 598, 600-601[5] (Mo.App.1976).

By approving the transcript on appeal, the parties thereby represent to us that it correctly contains “all of the record” in the case. Rule 81.12(c); State v. Asberry, 553 S.W.2d 902 (Mo.App. filed July 14,1977). Consequently, we may confidently assume that no final judgment was rendered or entered in the cause. Neither the memorandum opinion nor the docket entry constituted a final judgment from which an appeal could be taken, and neither was transmogrified into a final judgment by being denominated as such in plaintiff’s notice of appeal. First State Bank of Joplin v. Brown, 549 S.W.2d 369, 370 (Mo.App.1977). No judgment having been rendered or entered, we have no jurisdiction of this premature appeal and it is dismissed. Phelps v. Parker, 534 S.W.2d 278, 279[5] (Mo.App.1976).

All concur except FLANIGAN, J., who concurs in result.

      . References to rules and statutes are to Missouri Supreme Court Rules of Civil Procedure, V.A.M.R., and to RSMo 1969, V.A.M.S.


author: STONE, Judge.

text:
    Lewis MORGAN and Leo Morgan, Plaintiffs-Appellants, v. Kent MORGAN and Charlene Morgan, Defendants-Respondents.
    No. 10273.
    Missouri Court of Appeals, Springfield District.
    Aug. 22, 1977.
    John M. Belisle, Osceola, Joseph B. Phillips, Stockton, for plaintiffs-appellants.
    Samuel J. Short, Jr., Stockton, for defendants-respondents.
   STONE, Judge.

On August 11, 1975, Lewis and Leo Morgan filed this civil suit to quiet title to, and for a partition of, real estate. On September 3, 1975, defendants filed a motion to dismiss for failure to state a cause of action, and the parties were granted leave to file briefs on that motion. On October 30,1975, plaintiffs moved to overrule defendants’ motion to dismiss and to compel answer because defendants had not yet filed a brief with the circuit court, but this motion was overruled after both parties filed their briefs. On January 26, 1976, the motion to dismiss was sustained, and this appeal was perfected from that order.

The subject of this litigation is a 252-acre tract of land owned by Laurinda Morgan and devised at her death on September 10, 1952, to her son John, “to have and to hold said premises and to have the use, management and income of the same until his marriage, or in case he does not marry, then until his death, or until he makes a sale of the farm.” If John desired to sell the tract or if he married, he was to pay his brother Jesse one-seventh of the appraised value of the land as determined by three disinterested Cedar County landowners. The will alternatively provided that if John did not sell or marry, then upon his death a “remainder” would pass to Laurinda’s other three sons, Jesse, William Leo and Lewis, “share and share alike, and in the case of the death of any one of them, his one-third (½) interest or share in said premises shall belong to and vest in the descendants of the one so deceased.”

The petition alleged that John M. H. Morgan neither married nor sold the farm prior to his death on May 13, 1975. Plaintiffs admit there was an attempt to convey the property and defeat their contingent interests, but they contest the validity of that conveyance. Specifically, plaintiffs claim John Morgan sought to destroy their interests by making a gift in fee of the farm to defendants Kent and Charlene Morgan, husband and wife. John and Jesse Morgan joined in this conveyance deeding their interests to defendants. Plaintiffs maintain John Morgan had only a power of sale and that he could not gratuitously pass a fee interest with or without a release by Jesse Morgan of his interest. They argue that because a “gift”, rather than a “sale”, was employed, the “power” held by John Morgan to “divest the fee interest out of the above-named three parties was never exercised” and consequently, when John Morgan died without having married, the fee interest passed to Jesse, William Leo, and Lewis. Plaintiffs recognized that Jesse effectively passed by deed to defendants any interest he owned or subsequently acquired. Therefore, plaintiffs Lewis and Leo asked the court to declare that each of them owned a one-third interest and that defendants Kent and Charlene owned a one-third interest as tenants by the entirety. Plaintiffs also requested that the court sell the land and divide the proceeds.

The trial court granted the motion to dismiss for failure to state a cause of action, and the single issue here is whether the trial court erred in that dismissal. Only ultimate facts need be alleged in a petition. Scheibel v. Hillis, 531 S.W.2d 285, 290(14) (Mo. banc 1976). A petition is sufficient if plaintiff might be entitled to relief by applying substantive law to his alleged facts [Niemczyk v. Burleson, 538 S.W.2d 737, 742(6) (Mo.App.1976); Kersey v. Harbin, 531 S.W.2d 76, 79(2) (Mo.App.1975); Schnabel v. Taft Broadcasting Company, Inc., 525 S.W.2d 819, 821(2) (Mo.App.1975)], and a petition should not be dismissed unless it is apparent that plaintiff has alleged no facts under which he could recover. Laclede Gas Co. v. Hampton Speedway Co., 520 S.W.2d 625, 630(5) (Mo.App.1975). These principles are to be applied liberally in determining whether a cause of action is presented. City of Creve Coeur v. Creve Coeur Fire Pro. Dist., 355 S.W.2d 857, 859(4) (Mo.1962); S_ v. W_, 514 S.W.2d 848, 855(13) (Mo. App.1974); Garbo v. Hilleary Franchise Systems, Inc., 479 S.W.2d 491, 499 (Mo.App. 1972).

Appellate courts are to review petitions in the light most favorable to the plaintiff and to regard all pleaded facts as admitted. Dyer v. General American Life Ins. Co., 541 S.W.2d 702, 703 (Mo.App.1976); Lieberman v. Lieberman, 517 S.W.2d 478, 479(2) (Mo.App.1974); Collins v. Vernon, 512 S.W.2d 470, 475(5) (Mo.App.1974). “On a motion to dismiss the question is whether the well-pleaded facts and the reasonable inferences to be drawn therefrom state a cause of action. If they do, dismissal is improper.” Mercantile Trust Company v. Chase Hotel, Inc., 510 S.W.2d 807, 809(2) (Mo.App.1974). Plaintiffs here allege an interest in real estate under terms of a will, ask for a declaration of interests between themselves and defendants, and seek sale and partition of the receipts.

Authority for the courts to determine estates in land in a suit to quiet title dates back to 1899 and currently is found in § 527.150(1), RSMo 1969, which provides that any person claiming an interest in realty is entitled to a judgment defining the estate, interest or title held by the plaintiff and the defendant respectively. Subsection 2 empowers the court, upon request of either litigant, to hear and adjudicate the rights of the parties and afford legal or equitable relief.

In evaluating the sufficiency of a petition in this category of actions, Missouri courts have required only that plaintiff allege that he has an estate, interest or title when the suit is instituted, the nature of his particular estate, interest or title, and that defendant has an adverse claim. Spore v. Ozark Land Co., 186 Mo. 656, 85 S.W. 556 (1905); Shelton v. Horrell, 232 Mo. 358, 134 S.W. 988, 990(3, 4) (banc 1911); 74 C.J.S. Quieting Title §§ 58-59 (1951). 2 Gill, Missouri Titles § 1476 (4th ed. I960). A motion to dismiss is the proper procedural tool to challenge a petition and to obtain a decision as to whether it alleges sufficient facts to constitute a cause of action [74 C.J.S. Quieting Title § 73b (1941)], but courts are admonished to deny such motion and determine property rights. Stottle v. Brittian, 459 S.W.2d 310, 313(2) (Mo.1970); Jones v. Garden Park Homes Corp., 393 S.W.2d 501, 506(10) (Mo.1965); Evans v. Brussel, 300 S.W.2d 442 (Mo.1957). Any party claiming title in a quiet title suit is entitled to an adjudication of that issue.

Plaintiffs’ petition satisfies the preceding standards in that it alleges (1) a specific property interest in plaintiffs, to wit, a valid remainder now vested in possession, and (2) an adverse claim by defendants, to wit, that they have a possessory fee simple title. Sufficient facts are alleged to warrant a determination of what interest, if any, plaintiffs are seized, since they have placed in issue the validity of the conveyance by John and Jesse to defendants in light of the conditions of sale set forth in the will.

With nothing before us other than the pleadings and judgment of dismissal, we have no alternative other than to reverse and remand the case to the Circuit Court of Cedar County for further proceedings consistent with this opinion. It is so ordered.

HOGAN, TITUS and FLANIGAN, JJ., concur.

BILLINGS, C. J., not participating.

      . The judgment became final on February 25, 1976, 30 days after dismissal of the petition. Although the notice of appeal was filed prior to that date, it was effective. Rule 81.05(b) V.A. M.R.

      . Of course, the location of the realty must be accurately described. Hartvedt v. Harpst, 173 S.W.2d 65, 68(6) (Mo.1943).

      . For petitions to quiet title that have been held sufficient, see Kundert v. Powell, 376 S.W.2d 237 (Mo.1964); Bailey v. Williams, 326 S.W.2d 115 (Mo.1959); Klorner v. Nunn, 318 S.W.2d 241 (Mo.1958); Boatmen’s Nat. Bank v. Rogers, 352 Mo. 763, 179 S.W.2d 102, 105(1) (1944).


author: FLANIGAN, Judge.

text:
    Hayward BREWER and Floretta Brewer, Plaintiffs-Appellants, v. David E. BLANTON, Executor of the Estate of Frances L. Stallcup, Deceased, Gertrude Berry, Executrix of the Estate of Edward H. Berry, Sr., Deceased, Wilson S. McMullin and Nora McMullin, Defendants-Respondents.
    No. 10329.
    Missouri Court of Appeals, Springfield District.
    Aug. 22, 1977.

      Weber Gilmore, Gilmore & Gilmore, Sikes-ton, for plaintiffs-appellants.
    David E. Blanton, Blanton, Blanton, Rice & Sickal, Kenneth L. Dement, Sikeston, for defendants-respondents.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

This is an action to reform a warranty deed dated November 10, 1972, whereby Frances L. Stallcup, “acting by and through her attorney-in-fact Edward H. Berry,” conveyed residential property in Sikeston, Missouri, to plaintiffs Hayward Brewer and Floretta Brewer, husband and wife. The petition alleged that through “a mutual mistake of fact” a tract of land, referred to in the record as “the tip,” was omitted from the description in the deed and that the true intention of the parties was that the tip should have been included in that description. The land which was included, is in the general form of a square and is known as lot 4 in a certain platted subdivision. The “tip” lies north of the northeast portion of lot 4 and is adjacent thereto.

On March 8, 1973, Mrs. Stallcup, acting through her attorney-in-fact Berry, by warranty deed conveyed the tip to Wilson S. McMullin and Nora McMullin, husband and wife.

The action was filed on August 30, 1973. The defendants named in the original petition were Mrs. Stallcup, Berry, and Mr. and Mrs. McMullin. On January 7, 1974, plaintiffs took the deposition of Berry. Thereafter both Berry and Mrs. Stallcup died. The third amended petition, on which the action was tried, substituted the respective personal representatives of Mrs. Stallcup and Berry. Accordingly, there are four defendants: the executor of Mrs. Stallcup, the executrix of Berry, and Mr. and Mrs. McMullin.

The third amended petition was in two counts. In Count I plaintiffs prayed that the deed of November 10,1972, be reformed so that its description would include the tip, and further requested that title to the tip be declared to be in plaintiffs and not in defendants. Count II of the petition alleged that the McMullins were in possession of the tip and had fenced it and cut trees on it, by reason of which plaintiffs prayed damages in the sum of $1,000.

The court, sitting without a jury, found the issues on both counts against the plaintiffs and in favor of the defendants. The judgment also declared that title to the tip was in the McMullins. Plaintiffs appeal.

Plaintiffs’ first “point relied on” is: “The trial court erred in its application of § 491.-010, RSMo 1969 V.A.M.S.” The point then sets forth several reasons why, so plaintiffs contend, the court erred in sustaining an objection, made by counsel for Mrs. Stallc-up’s executor based on § 491.010, to an offer of proof made by plaintiffs dealing with an alleged conversation between Berry and plaintiff Hayward Brewer. According to the offer, during the negotiations which preceded the execution and delivery of the deed of November 10,1972, Berry stated to Brewer that the tip was included in the land to be conveyed by that deed. Plaintiffs offered to prove this conversation through the testimony of plaintiff Hayward Brewer.

This opinion is limited to those issues presented and preserved in “points relied on,” and they alone need be and are considered. Pruellage v. De Seaton Corp., 380 S.W.2d 403, 405[3] (Mo.1964); Ledbetter v. Ledbetter, 547 S.W.2d 214[1] (Mo.App.1977).

Section 491.010, the Dead Man’s Statute, was discussed in Flanagan v. DeLapp, 533 S.W.2d 592 (Mo. banc 1976). There the court said at p. 597:

“[§ 491.010] has three functional parts. First, it qualifies as witnesses those individuals disqualified at common law because of their interest in the outcome of the case. Next, in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, the so-called transactions proviso of the statute makes a surviving party incompetent as a witness in his own favor or in favor of one claiming under him. Under this proviso the witness is incompetent only as to those matters about which decedent could have testified if he had lived. Finally, where one of the parties to a contract is deceased, and an executor or administrator is a party to a suit involving such contract, the portion of the statute referred to as the administration proviso makes the surviving party to the contract totally incompetent as a witness except as to matters occurring after probate of the will or appointment of an administrator.”

In the instant action Mrs. Stallcup’s executor was a defendant. The fact that Mrs. Stallcup was not present when the alleged Brewer-Berry conversation took place is of no moment. “When an [executor or] administrator is a party, the mouth of the adverse living party to the contract or cause of action on trial is closed as to all matters that occurred prior to the probate of the will or the appointment of the administrator, regardless of whether or not the other party, if living, could testify relative to the same matter.” Davis v. Robb, 10 S.W.2d 680, 682[4] (Mo.App.1928), quoted with approval in Flanagan, supra, 533 S.W.2d at 598.

“[T]he death of the contracting agent does exclude the surviving party who contracted with him. Williams v. Edwards, 94 Mo. 447, 7 S.W. 429; Leach v. McFadden, 110 Mo. 584, 19 S.W. 947; Hollmann v. Lange, 143 Mo. 100, 44 S.W. 752; Wendover v. Baker, 121 Mo. 273, 25 S.W. 918; Sidway v. Missouri Land & Live Stock Co., 163 Mo. 342, 63 S.W. 705; Central Bank v. Thayer, 184 Mo. 61, 82 S.W. 142; Charles Green Real Estate Co. v. Building Co., 196 Mo. 358, 93 S.W. 1111.” Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393, 400 (1933). See also State v. Jacobs, 281 S.W.2d 597, 598[1] (Mo.App.1955). If Berry’s deposition had not been taken, the fact that Berry was dead would have entitled Mrs. Stallcup, under the foregoing principle, to invoke § 491.010 and thus bar Hayward Brewer from testifying to the Brewer-Berry conversation, and that would be true even if Mrs. Stallcup were still living.

Plaintiffs say that “the trial court erred in its application of § 491.010 because Berry’s deposition had been taken and that plaintiff Brewer should have been allowed to testify to matters covered by Berry in his deposition.”

The following factors should be noted:

1. The deposition of Berry was taken-by plaintiffs and not by defendants, although there is some indication in the record that some of the defendants may have been represented by counsel at the taking of that deposition.

2. When the Berry deposition was taken Mrs. Stallcup was still alive.

3. Berry, the deponent, was Mrs. Stall-cup’s attorney-in-fact and was not, so far as Mrs. Stallcup was concerned, the “other party.”

4. There was no proof that the deposition of Berry contained any testimony showing the contents of the alleged conversation between Berry and plaintiff Hayward Brewer or even showing that there was such a conversation.

Whether factor 1, factor 2, or factor 3 would be sufficient to uphold the ruling of the trial court need not be considered for the reason that factor 4 supports that ruling. When the attorney for Mrs. Stallcup’s executor interposed the objection based on the Dead Man’s Statute, the trial court properly prohibited Hayward Brewer, with respect to that defendant, from testifying to matters not mentioned in the testimony contained in the deposition of Berry. Allen v. Chouteau, 102 Mo. 309, 14 S.W. 869 (1890); Drummond Realty & Inv. Co. v. W. H. Thompson Trust Co., 178 S.W. 479, 482[5] (Mo.1915); Ferry v. Woody, 210 Mo.App. 98, 241 S.W. 78, 80[2] (1922); Vigeant v. Fidelity Nat. Bank & Trust Co., 239 Mo.App. 46, 188 S.W.2d 533, 537[7] (1945).

Further, under their first “point relied on,” plaintiffs say that the trial court “misapplied the statute [§ 491.010] by refusing to admit testimony of Darrell Alcorn regarding whether or not it is conceded that Mr. Alcorn was an agent for [plaintiffs] in connection with the purchase of the Stall-cup property. First of all, Edward H. Berry’s testimony had been preserved by deposition; therefore, Mr. Alcorn should have been allowed to testify to the matters covered by the deposition.”

By Rule 84.13(b) this court may not reverse any judgment “unless it finds that error was committed by the trial court against the appellant, materially affecting the merits of the action.”

The “statement of facts” portion of plaintiffs’ appellate brief makes no mention of Alcorn. The foregoing quotation appears in the “argument” portion of the brief. The brief contains no other reference to Alcorn or the contents of his rejected testimony.

There is nothing in plaintiffs’ brief to show that Alcorn’s rejected testimony, whatever it was, had anything to do with the issue of whether the tip should have been included in the description contained in the deed of November 10, 1972. Plaintiffs’ brief does say that Alcorn should have been allowed to testify to the matters covered by Berry’s deposition. Whether that statement is right or wrong need not be considered but Berry’s deposition, at least that portion of it appearing in the transcript, although mentioning Alcorn, contains no reference to the tip or whether or not it should have been included in the description.

Plaintiffs’ first point has no merit.

Plaintiffs’ second “point relied on” is that the trial court erred in refusing to admit the testimony of Jesse Lewis as to a statement made to him by Mrs. Stallcup. The excluded testimony, contained in an offer of proof, was to the effect that “in the fall of 1972” Mrs. Stallcup told Lewis that she had sold “all her property and the house” to plaintiffs.

Under Rule 73.01, para. 3c, this court must consider admissible evidence which was rejected by the trial court and preserved. Although, as plaintiffs state, the court rejected the offer of proof described in the preceding paragraph, the transcript contains testimony of Lewis showing the background for the offer. At the time of the trial (March 1976) Lewis was 75 years old. He had worked for Mrs. Stallcup since 1931 as a yard man. When asked when it was that Mrs. Stallcup made the alleged statement to him, Lewis responded, “I dis-remember what date it was.” Later he said that he did not remember what month it was or what year it was — “no got that in my memory either.”

For the purpose of this opinion this court assumes, but does not rule, that the trial court erred in rejecting the offer of proof but finds that such error, if any, was not prejudicial to plaintiffs. Missouri courts which have approved the receiving into evidence of a declaration of deceased persons have used language indicating that only limited weight is to be accorded it. Evidence of that variety “has always been received with great care, apd when not supported by other evidence is generally entitled to but little weight.” ' Cornet v. Bertelsmann, 61 Mo. 118, 127 (1875). “It is sometimes doubted whether it ought to be received at all when introduced for the purpose of divesting title created by deed.” Fanning v. Doan, 139 Mo. 392, 41 S.W. 742, 747 (1897). “When it relates to what men who are now dead are said to have said, it should be received with caution.” Grantham v. Gossett, 182 Mo. 651, 81 S.W. 895, 901 (1904). “There is no substantial reliance to be placed upon this class of testimony.” Daudt v. Steiert, 205 S.W. 222, 226 (Mo.1918).

“ ‘The high remedy of reformation is never granted on a probability, or a mere preponderance of evidence’, but judicial reformation of a written instrument is permitted only upon clear, cogent and convincing evidence, which leaves no room for reasonable doubt. And these ‘strict requirements relate not only to the mistake and the mutuality thereof . . . but also to the real agreement which is alleged to have been made’.” (Citations omitted) Galemore v. Haley, 471 S.W.2d 518, 524[10] (Mo. App.1971). See also King v. Riley, 498 S.W.2d 564, 565[1] (Mo.1973).

Even if some weight is accorded the excluded testimony of Lewis, plaintiffs’ evidence falls short of being “clear, cogent and convincing.”

Plaintiffs’ second point has no merit.

Plaintiffs’ third “point relied on” is:

“The Trial Court Erred in Refusing to Admit Parol Evidence to Show the Mutual Mistake of the Parties for the Following Reasons:

“(a) Parol evidence is admissible in a suit to reform a written instrument for mistake; and

“(b) Evidence respecting prior negotiations and agreements which have been merged in a deed is competent on the issue of mutual mistake; and

“(c) Where relief is sought on the ground of mistake, the rule precluding consideration of extrinsic evidence of the intention of the parties to a deed is inapplicable.”

This point preserves nothing for appellate review because it violates Rule 84.04(d) V.A.M.R. “Abstract statements purporting to be reasons for averred trial court error do violence to the rule which requires a point to be specific, [cites omitted] The court of appeals is not obliged to search either the transcript on appeal or the argument portion of an appellant’s brief to come by the meaning of a point on appeal.” Barber v. M. F. A. Milling Company, 536 S.W.2d 208, 209[3-4] (Mo.App.1976). No portion of plaintiffs’ brief sets forth what “parol evidence” was excluded.

Plaintiffs’ third point need not be considered.

Although their appeal has failed, plaintiffs may derive some consolation from the fact that this court has reviewed the transcript and is of the opinion that the trial court’s judgment was proper on this record. As previously stated, plaintiffs failed to establish by clear, cogent and convincing evidence that a mutual mistake had been made by them and Mrs. Stallcup.

Moreover, even if such evidence existed, there was no showing that the McMullins “had notice of the mutual mistake existing between the original parties.” Robo Sales, Inc. v. McIntosh, 495 S.W.2d 420, 423[2] (Mo.1973). See also Van Eaton v. Dennis, 242 S.W.2d 21, 25 (Mo.1951), Anno. 79 A.L. R.2d Reformation — Intervening Rights of Third Parties, p. 1180.

Defendants-respondents filed a “Motion to Dismiss or Affirm for Failure of Appellants to Comply With Rule In Respect to Transcript and Brief.” The motion is denied.

The judgment is affirmed.

All concur.

      . The specific date of Mrs. Stallcup’s death is not shown by the transcript. The latter does reflect, however, that her death took place after March 25, 1975.

      . The “administration proviso,” set forth in footnote 5, contains this language: “. . . unless the contract in issue was originally made with a person who is living and competent to testify.” Berry is dead.

      . The same attorney represented all of the defendants and whether his appearance at the Berry deposition was on behalf of all of the defendants or only some of them is not disclosed. Obviously the attorney was not representing either personal representative because Berry and Mrs. Stallcup were then alive. Whether the attorney asked any questions or merely attended the deposition is not shown.

      . In DeMott v. Dillingham, 512 S.W.2d 918 (Mo.App.1974), an action against the executor of one McCorkle, the deposition of plaintiff was taken on behalf of McCorkle. In rejecting plaintiff’s argument that the taking of the deposition was a waiver of § 491.010, the court, at p. 920, said: “Plaintiff was a competent witness when the deposition was taken because McCorkle was then still alive, thus the executor cannot be held to have waived the benefit of a disqualification which had not yet accrued.” (Emphasis added)

      .The administration proviso of § 491.010 reads: “Where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator.”

      . See Wynn v. Cory, 48 Mo. 346 (1871); Wills v. Berberich’s Delivery Co., 339 Mo. 856, 98 S.W.2d 569, 571 [2] (1936); McComb v. Vaughn, 358 Mo. 951, 218 S.W.2d 548, 550[1, 2] (1949); but see 31A C.J.S. Evidence § 325 (notes 23 and 24), p. 821, and 4 Wigmore on Evidence, Chad.Rev., § 1082(3), p. 213.


author: WELDON W. MOORE, Special Judge.

text:
    John Joseph CAMILLO, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10083.
    Missouri Court of Appeals, Springfield District.
    Aug. 24, 1977.

      Wm. J. Pleischaker, Public Defender, 29th Judicial Circuit, Joplin, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HOGAN, P. J., and MOORE and NORTHERN, Special Judges.
   WELDON W. MOORE, Special Judge.

This is an appeal from a judgment and order of the Circuit Court of Jasper County entered July 1,1975, denying movant-appel-lant’s motion to vacate judgment and sentence under Rule 27.26, V.A.M.R. Appellant had been sentenced to life imprisonment in 1967 for first-degree murder.

Appellant’s motion alleged four grounds for relief: 1) appellant’s guilty plea was a product of coercion; 2) appellant did not knowingly waive his federally protected rights; 3) appellant received ineffective assistance of counsel, and 4) appellant was incompetent at the time of his guilty plea.

On appeal, appellant has limited his points to one: His guilty plea was a product of coercion. Other grounds in his motion to vacate were considered and ruled on by the court below, but have not been preserved on appeal and, therefore, are deemed abandoned and are not for our review. Herron v. State, 498 S.W.2d 530, 531 [1] (Mo. 1973); Brown v. State, 492 S.W.2d 762 [1] (Mo. 1973); Crow v. State, 514 S.W.2d 13, 14 [1] (Mo.App. 1974).

Appellant was arrested in Illinois on or about February 1, 1966, and was returned to Jasper County, Missouri, sometime prior to April 16, 1966, in connection with the murder charge. On September 20, 1966, pursuant to court order, appellant was admitted to State Hospital No. 1 at Fulton, Missouri, for examination. He was discharged from the hospital and returned to the Jasper County Jail on January 10,1967. His plea of guilty was entered and accepted on August 10, 1967.

The evidence appellant gave concerning the involuntariness of his plea pertained to mistreatment in the Jasper County Jail pri- or to September 20, 1966. There is no evidence of mistreatment from the date of his admission to State Hospital No. 1 at Fulton on September 20, 1966, to the date of his plea of guilty on August 10, 1967, a period of almost 11 months. Assuming that mistreatment occurred prior to September 20, 1966, there is no evidence to indicate such treatment had a coercive effect on the guilty plea some 11 months later.

Appellant made no complaint about his treatment or jail conditions to the sentencing judge. His placement in solitary confinement was for disciplinary purposes, and his motion to vacate judgment and sentence was not filed until five years after sentencing.

The grounds for relief in a motion filed under Rule 27.26 must be established by a preponderance of the evidence. Rule 27.26 (f); Beach v. State, 488 S.W.2d 652, 656 [9, 10] (Mo. 1972). We are limited in our review to a determination whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.-26 (j).

The circuit court found that at the time of his plea appellant knew the nature of the charge, the nature of the proceedings, the range of punishment, and that his plea was not the product of physical abuse or threats, was not procured through coercion or duress, but was, in fact, voluntary. We agree and hold that the finding of the trial court is not clearly erroneous.

Appellant, at the time he received his life sentence, instead of the death penalty (which was possible), stated to the court: “If you were to give me this life sentence, of course, I’d appreciate it from the bottom of my heart, but ... I believe I’ve paid for what I did to Friday Lane every night before I go to bed because I live through it every night.” Further, his final words to the sentencing judge were, “Thank you, Your Honor.” The circuit court concluded, and we agree, that such words do not indicate an involuntary plea.

No error appearing, the judgment is affirmed.

All concur.


author: HENRY, Justice. HENRY, Justice.

text:
    UNITED INTER-MOUNTAIN TELEPHONE COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION of the State of Tennessee, Appellee.
    Supreme Court of Tennessee.
    May 23, 1977.
    Rehearing Denied Sept. 12, 1977.

      John R. Hoffman, Gen. Counsel, Bristol, Lon P. MacFarland, MacFarland, Colley, Blank & Jack, Columbia, W. W. Hill, Jr., Vice President-Rate Counsel, Kansas City, Mo., for appellant.
    Eugene W. Ward, Gen. Counsel, T. E. Midyett, Jr., Asst. Gen. Counsel, Nashville, for appellee.
   OPINION

HENRY, Justice.

This is a telephone rate case.

United Inter-Mountain Telephone Company is a public utility incorporated under the laws of the Commonwealth of Virginia and domesticated in Tennessee. It is engaged in furnishing telephone communication in franchise areas in East Tennessee and Southwest Virginia. It is a wholly owned subsidiary of United Telecommunications, Inc. UTI has a number of subsidiary corporate entities, including United Computing Systems, Inc., which provides computer service to the group, North Electric Company, which manufactures and sells telephone equipment to the telephone subsidiary companies, United System Service Company, which provides management, professional, financial, technical and advisory services to all subsidiaries as well as to the parent company (UTI), and a total of twenty-four telephone subsidiaries, including UIMT. UTI apparently is operated as one economic entity.

On July 17, 1975 UIMT filed its petition before the Public Service Commission seeking a rate increase. In substance, the petition alleged the monetary cost of providing services, extending facilities, and generally operating under its existing rate structure; asserted that the existing structure was inadequate and resulted in earnings that were insufficient to attract investment capital; and contended that the continuation of this rate structure would result in confiscation of petitioner’s property. A proposed rate schedule and other pertinent documents were filed with the petition.

The existing rate structure was established by the Commission in July 1974, and was based upon the results of operations for a period ending 30 June 1973, with increases being authorized in increments. The July 1974 order found that UIMT was entitled to an 8.9% return on the rate base as found by the Commission. The present application is based upon a test period of eighteen months ending 31 December 1974, and seeks a return of 14% on common equity and 9.78% on total capital.

The Public Service Commission, after hearing extensive proof and considering massive documentary evidence, fixed a rate of return of 9.5%, to be applied against a rate base of $73,638,621.00, and directed UIMT to file with the Commission a proposed tariff designed to produce additional annual revenue of $746,304.00. This tariff was seasonably filed by UIMT, approved by the Commission, and went into effect on 1 February 1976.

UIMT filed its complaint and petition for certiorari in the Chancery Court at Nashville, praying that the rates as established by the Commission be declared to be confiscatory, that the court exercise its independent judgment upon the matter, and that it be granted assorted kindred relief.

The entire record before the Commission was certified to the Chancery Court, and that Court, after receiving substantial testimony in the form of depositions, affidavits and testimony adduced in open court, entered a final decree dismissing certiorari and affirming the action of the Public Service Commission. This appeal ensued.

I.

The complaint and petition for certiorari filed in the Chancery Court represent a reliance upon Sec. 65-220, et seq. T.C.A., which specifically authorize such procedure and spell out the specifics and scope of the review. Under this statute this Court has held that in such cases it was proper for the Court to hear additional evidence. Southern Bell T. & T. Co. v. Tennessee Pub. Serv. Com’n, 202 Tenn. 465, 304 S.W.2d 640 (1957). This statutory scheme for the review of the action of the Public Service Commission was adopted in 1953.

In 1974 the General Assembly adopted the Uniform Administrative Procedures Act (Ch. 725, Acts 1974), a comprehensive scheme specifically designated as “remedial legislation designed to clarify and bring uniformity to the procedure of state administrative agencies and judicial review of their determination.” Sec. 4-525(a). The legislative intent that this act apply to all administrative boards and agencies is unmistakably clear.

Aside from the self-evident overall import and intention of the act, there are specific provisions which permit no doubt that this act applies to the Public Service Commission.

Sec. 4-508(a), T.C.A. contains a definition of the word “Agency”:

“Agency” means each state board, commission, committee, department, officer, or any other unit of state government authorized or required by any statute or constitutional provision to make rules or to determine contested cases. (Emphasis supplied).

It would be difficult to compose a more sweeping and all-inclusive definition.

The following subsection, Sec. 4 — 508(b), defines “contested case”, in pertinent part, as follows:

“Contested case” means a proceeding, including a declaratory proceeding in which the legal rights, duties or privileges of a party are required by any statute or constitutional provision to be determined by an agency after an opportunity for a hearing. Such proceeding shall include, but not be restricted to rate making; price fixing; granting certificates of convenience and necessity; . . . (Emphasis supplied).

The emphasized language points unerringly to the Public Service Commission, it being the only state agency concerned with rate making and granting certificates of convenience and necessity.

Moreover, Section 4-525(b) contains this language:

In any other case of conflict between §§ 4-507 — 4-527 and any procedural administrative statute, whether general or specific, §§ 4-507 — 4-527 shall control, however, compliance with the procedures prescribed by this chapter does not obviate the necessity of complying with procedures prescribed by other provisions of Tennessee Code Annotated.

We hold that Sec. 65-220, et seq., T.C.A. have been superseded by the Uniform Administrative Procedures Act.

Under the UAPA, “the only available method of judicial review”, (emphasis supplied), in a “contested case”, Sec. 4-523(a), is by petition for review filed in the Chancery Court. Sec. 4 — 523(b).

In the Chancery Court:

The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court. (Emphasis supplied). Sec. 4-523(g), T.C.A.

The Chancery Court—and this Court on appeal—may affirm the decision of the Commission or remand for further proceedings. It may reverse or modify if the rights of the petitioner have been prejudiced because the decision is:

(1) in violation of constitutional or statutory provisions;

(2) in excess of the statutory authority of the agency;

(3) made upon unlawful procedure;

(4) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion ; (emphasis supplied), or

(5) unsupported by evidence which is both substantial and material in the light of the entire record. (Emphasis supplied). Sec. 4-523(h), T.C.A.

Thus the Act creates a substantial and material evidence rule, and after so doing, emphasizes the importance and solemnity of the action taken by the Commission by adding at the conclusion of subsection (5) the following:

In determining the substantiability of evidence, the court shall take into account whatever in the record fairly detracts from its weight, but the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. (Emphasis supplied). See. 4^523(h)(5), T.C.A.

The impact of the Administrative Procedures Act on the review of the decisions made by state boards, commissions and agencies, including the Public Service Commission, is massive. It casts upon the Commission the heavy burden of a sound, reasoned, and judicious approach in the exercise of its jurisdiction. It casts upon petitioners before the Commission the duty and responsibility of bringing forward their entire cases in Commission hearings, with the full realization that gone are the days of the bifurcated hearings before the Commission and in Chancery Court.

This case points up the wisdom of the statute. After voluminous proof had been taken before the Commission, the Chancery Court, in deciding the case, considered massive testimony not presented to the Commission. This operates to downgrade the Commission and, in a vary real sense, reduces it to the level of mere hearing examiners, trial referees or high-level masters, charged only with the duty of making preliminary findings and temporary decisions preparatory to a main trial in the Chancery Court. This deprives litigants and the consuming public of a meaningful hearing before a commission, with expertise in the field, aided by technicians knowledgeable and skilled in the preparation and analysis of supporting documentary proof in areas of great complexity.

We do not think this case is in a posture for appellate review. The Commission has had no opportunity to sit in judgment on substantial portions of the testimony. The Chancellor has considered testimony that should not even be in the record. Normally we would—as we shall in the future—decide this appeal solely on the basis of the proof before the Commission; however, in this period of transition from an old and established procedure, and in a case where both counsel and the Chancellor, proceeded under the old statutes, we feel that the interest of justice demands a remand to the Public Service Commission. The Chancellor has that authority, Sec. 4-523(h); so does this Court.

II.

For the guidance of counsel, the Commission, and the Chancellor, we comment upon two additional matters.

Aside from the rate of return on rate base, the only substantial remaining area of dispute involves an item of $447,209.00 representing an adjustment to the income available for fixed charges resulting from a tax savings produced by the filing of a consolidated federal income tax return by UTI.

As to the question of the income tax allocation and its corresponding effect on the rate base, we invite attention to the decision of this Court in Tennessee Public Service Commission v. Nashville Gas Com- party, 551 S.W.2d 315 (Opinion filed March 21, 1977).

There we dealt with a parent corporation and its wholly owned subsidiary, which applied to the Public Service Commission for a rate increase. The Commission authorized tariffs to produce additional revenue, subject to an offset or reduction of revenue received by the parent corporation from its direct industrial sales within the Nashville area. The Chancellor held that the Commission erred in taking into consideration this “imputation credit”. In reversing the Chancellor and upholding the Commission we said:

. a regulatory body, such as the Public Service Commission, is not bound in all instances to observe corporate charters and the form of corporate structure or stock ownership in regulating a public utility, and in fixing fair and reasonable rates for its operations. The filing of consolidated reports by parent and subsidiary corporations, both for tax purposes and regulatory purposes, is so commonplace as to be completely familiar in modern law and practice. Considerations of “piercing the veil”, which are involved in cases involving tort, misconduct or fraud, are largely irrelevant in the regulatory and revenue fields. In order for taxing authorities to obtain accurate information as to revenues and expenses, the filing of consolidated tax returns by affiliated corporations is frequently required, and rate-making and regulatory bodies frequently can and do consider entire operating systems of utility companies in determining, from the standpoint both of the regulated carrier and the consuming public, fair and reasonable rates of return.
* * * * * *
. it seems to us that the subsidiary in actuality is nothing more than an operating division of the parent. Management decisions, for legitimate reasons, may have placed the industrial sales and the facilities requisite therefor in the parent company, but this does not prevent a public regulatory body from considering them as part of one operating system and taking them into account in determining the proper rate base and rate structure of the subsidiary. Otherwise, it would be a simple matter, through the device of holding companies, spin-offs, or other corporate arrangements, to place the cream of a utility market in the hands of a parent or an affiliate, and to strip the marketing area of a regulatory subsidiary of its most profitable customers. See Industrial Gas Co. v. Public Utilities Comm’n of Ohio, 135 Ohio 408, 21 N.E.2d 166 (1939).

The rationale of Nashville Gas Company is applicable to this case. Upon the authority of that case and of Federal Power Commission v. United Gas Pipe Line Co., 393 U.S. 71, 89 S.Ct. 55, 21 L.Ed.2d 55 (1968), relied upon by the Chancellor, we sustain so much of the Public Service Commission’s order and Chancellor’s decree as holds that the adjustment to UIMT’s income for federal income tax savings resulting from the filing of a consolidated tax return is proper, and that UIMT’s federal income tax expense should reflect a proportionate share of such savings. See also Federal Power Commission v. United Gas Pipe Line Company, 386 U.S. 237, 87 S.Ct. 1003, 18 L.Ed.2d 18 (1967). The facts upon which this legal conclusion is reached are not at issue.

This removes this as an issue on remand. Also* removed is the rate base established by the Commission and accepted by UIMT, in the amount of $73,638,621.00.

III.

Counsel for the petitioner relies and argues most persuasively the applicability of the rule announced in Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287, 40 S.Ct. 527, 64 L.Ed. 908 (1920). We discussed the Ben Avon rule in Public Service Commission v. General Telephone Co., 555 S.W.2d 395 (Opinion released simultaneously with this opinion).

There we pointed out that, while Ben Avon has not been overruled explicitly, subsequent decisions by the Supreme Court of the United States have not applied the “independent judgment” rule in rate cases alleging confiscation, applying instead the substantial evidence test. Thus, it would appear that Ben Avon has been overruled sub silentio. In our opinion in General Telephone we stated:

We conclude that the Supreme Court has abandoned the independent judgment rule of Ben Avon and that the substantial evidence test satisfies federal constitutional law. We reject the independent judgment rule as controlling Tennessee constitutional law and hold that the scope of review articulated in T.C.A. § 4-523(h) provides adequate standards within constitutional limits, for judicial determination of the issue of confiscation in rate cases.

Notwithstanding the demise of Ben Avon, we point out that, should the Commission establish a rate which is confiscatory in character, such action would be an abuse or unwarranted exercise of discretion under Sec. 4 — 523(h) (4) and proper relief would be obtainable in the court. However, this determination would be on the basis of the substantial and material evidence rule qualified by the admonition that “the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” Sec. 4-523(h)(5).

We specifically call counsel’s attention to Rules 1 and 5 of this Court, and statutes referenced therein, relating to abridgement of the record. Much of the record in this case might well have been omitted. If and when this case is again presented for appellate review, the entire record may be filed if counsel consider it necessary, but the pertinent parts should be designated and, where feasible, bound separately. The law of the case has been fully and effectively briefed. Any future appeal should be re-briefed, from a standpoint of the facts, and that should be restricted to the only issue left in the case, viz. the rate established or to be established by the Commission.

On remand the record before the Commission will consist of the entire record made there and in the Chancery Court, together with such other evidence as the Commission may deem proper.

Except as herein affirmed, the judgment of the Chancellor is vacated.

Affirmed in part; vacated in part; remanded.

COOPER, C. J., and FONES, BROCK and HARBISON, JJ., concur.

OPINION ON PETITION TO REHEAR

HENRY, Justice.

United Inter-Mountain Telephone Company has lodged with the Court a courteous, dignified and vigorous petition to rehear.

Its first, and primary, insistence is that the Court erred in the conclusion reached in Section II of the opinion, relating to the adjustment to income resulting from a tax savings produced by the filing of a consolidated federal income tax return by UTI. Specifically UIMT asserts that our action in holding that “[t]he facts upon which this legal conclusion is reached are not at issue” is erroneous.

Perhaps we should have said “no longer at issue.”

The record shows that (1) a tax savings was realized by filing a consolidated return and (2) that a reasonable and acceptable method was used to allocate this saving.

The Chancellor found, in this regard, that the PSC took the ratio of the capital of UIMT ($137,569,000) to that of UTI ($2,116,761) and, on that basis, made the allocation of 6.5% against the interest expense of the entire system, or $447,209.00, to the Tennessee intrastate operations. We find this to be a fair and reasonable basis.

We adhere to our original view that this is no longer an issue and, on remand, this phase of the controversy is settled.

UIMT further insists that it falls within an exception set forth in Tennessee Public Service Commission v. Nashville Gas Co., 551 S.W.2d 315 (Tenn.1977). Its view of the exception is that it operates to require “[a] separate interstate from intrastate operations (and a separation of regulated from non-regulated operation).”

We are not confronted with a “regulated” versus a “non-regulated” utility controversy. Again, our basic concern was a proper method of allocating a portion of a tax savings from a parent company to a subsidiary subject to the regulation of the Public Service Commission.

We adhere to our reliance upon Nashville Gas. The exception noted therein has no relevance to the instant controversy.

UIMT takes strong issue with our holding that “we shall in the future decide this appeal solely on the basis of the proof before the Commission.”

This translates into a simple holding that we will heed the mandate of the legislature as set forth in Section 4-523(g), T.C.A. Under this section review in chancery is “confined to the record”, and proof in chancery is permissible only “[i]n cases of alleged irregularities in procedure before the agency, not shown in the record.”

Counsel argues that our opinion is “in direct conflict with prior holdings of this Court.” Perhaps so. Our prior pronouncements and precedents have been preempted by a new statutory scheme, under which all proof, with the exception of “irregularities”, must first be presented to the Public Service Commission.

The petition to rehear is respectfully denied.

COOPER, C. J., and FONES, BROCK and HARBISON, JJ., concur.

      . We emphasize that review is not by petition for certiorari, but by petition for review under the Administrative Procedures Act. Rules governing certiorari procedure are not relevant.


author: FONES, Justice.

text:
    PUBLIC SERVICE COMMISSION of the State of Tennessee, Z. D. Atkins, Cayce L. Pentecost and Robert N. Clement, Appellants, v. GENERAL TELEPHONE CO. OF the SOUTHEAST, Appellee.
    Supreme Court of Tennessee.
    May 23, 1977.

      Eugene W. Ward, Gen. Counsel, T. E. Midyett, Jr., Asst. Gen. Counsel, Nashville, for appellants.
    Lon P. MacFarland, MacFarland, Colley, Blank & Jack, Columbia, W. C. Fleming, Associate Gen. Counsel, Ward W. Wueste, Jr., Gen. Counsel, Durham, N. C., for appel-lee.
   OPINION

FONES, Justice.

Tennessee Public Service Commission (PSC) appeals from a decree of the Chancery Court of Davidson County directing the Commission to fix rates that would allow General Telephone Company of the Southeast (GT) to earn a minimum of twelve (12%) percent on its common equity, based upon a finding that any rate below that figure would be confiscatory.

I.

The threshold issue asserted by appellant is that the Uniform Administrative Procedures Act (UAPA), codified as T.C.A. §§ 4-501, et seq. governs the procedure for PSC hearings and the review of its decisions and that where the constitutional issue of confiscation is presented, in rate cases, the scope of review prescribed in T.C.A. § 4-523(h) satisfies the requirements of due process, including the claim of confiscation. Appellant urges this Court to reexamine the independent judgment rule announced by the United States Supreme Court in Ohio Valley Company v. Ben Avon Borough, 253 U.S. 287, 40 S.Ct. 527, 64 L.Ed. 908 (1920), and adopted in Southern Continental Telephone Company, etc. v. Railroad and Public Utilities Commission of State of Tennessee et al., 199 Tenn. 122, 285 S.W.2d 115 (1955), and Southern Bell Telephone and Telegraph Company v. Tennessee Public Service Commission et al., 202 Tenn. 465, 304 S.W.2d 640 (1957).

The substance of appellant’s contention is that subsequent cases of the United States Supreme Court have explained and modified Ben Avon to such an extent that the so-called independent judgment rule has been abandoned and should be explicitly overruled.

General Telephone’s reply is that Ben Avon has not been overruled or eroded and that when the constitutional issue of confiscation is presented, the UAPA has not affected the independent judgment rule. Also, it is urged that PSC affirmatively admitted in the Chancery Court that GT was entitled to that court’s independent judgment of the facts and is precluded by Supreme Court Rule 14(4) from raising the question in this Court.

II.

Addressing the latter contention first, we are of the opinion that the issue of the appropriate scope of review in rate cases is properly before the court for decision by virtue of the state of the pleadings of both parties in the Chancery Court and of the compelling necessity of resolving this question, presented by the legislative enactment in 1974 of the UAPA.

General Telephone sought a review of the decision of the PSC in the Chancery Court by filing an original bill of complaint and petition for certiorari. After reciting the facts, GT asserted that the Commission’s order of October 10, 1975, was arbitrary, capricious and confiscatory, in violation of Article I, § 8, and Article I, § 21 of the Tennessee Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. Its pleading continues as follows:

“Plaintiff avers that not only does it have a right to apply to this Court for relief because of the constitutional issue involved, and because the Common law writ of certiorari is always available in such cases, but it also is expressly given such right under the terms of Chapter 162 of the Public Acts of 1953, as amended by Chapter 46 of the Acts of 1969, (Tennessee Code Annotated, Section 65-220 through 65-229). The act provides for a judicial review of defendant Commission’s action in rate proceedings by ‘petition for certiorari to the Chancery Court of Davidson County, Tennessee, within sixty (60) days after the date of entry of the said final Order of the Commission.’ ”

After quoting in full T.C.A. § 65-229 entitled Scope of Review by the Court, GT asserts that it is entitled to a review of both the law and the facts under the constitutional issues raised and also as a petitioner for certiorari as provided in T.C.A. §§ 65-220-65-229.

Public Service Commission responded to these allegations by admitting that the common law writ of certiorari was available as well as the review provided in T.C.A. §§ 65-220 — 65-229, “but would show that maybe the same is the procedure as set forth in T.C.A. § 4-523.”

In United Inter-Mountain Telephone Company v. Public Service Commission, 555 S.W.2d 389 (Tenn.1977), released simultaneously with this opinion, we have held United Telephone’s reliance upon T.C.A. § 65-220 et seq. was misplaced and that the UAPA has entirely superseded these sections in title 65 and that the only method of judicial review of the decisions of the PSC is the petition for review pursuant to T.C.A. § 4-523.

Our reasons for so holding are stated at length in that opinion and will not be repeated here.

The Ben Avon independent judgment rule has provided a third standard of review available in rate cases, where confiscation was alleged. Common law certiorari, and statutory review, formerly T.C.A. § 65-220 et seq. (now T.C.A. § 4-523), each with its standards of judicial review have also been available. All three have been consistently asserted in rate eases, as here, since Southern Continental Telephone Company v. R & P U C et al., supra, in 1955.

The time has come to reexamine the judicial review of rate cases and determine whether or not this third standard of review is necessary to afford a fair opportunity for adjudication by a judicial tribunal of the constitutional issue posed by an allegation of confiscation.

We begin by examining the present status of the Ben Avon independent judgment rule in the federal courts and the courts of our sister states.

III.

Ben Avon involved a review of a decision of the Public Service Commission of Pennsylvania ordering a schedule of rates, wherein the fair value of the water company’s property for ratemaking purposes was the disputed issue. The water company asserted that the effect of the Commission’s order was a confiscation of its property. Upon appeal, the Pennsylvania trial court differed with the Commission as to the valuation of some items of property, but the Supreme Court of Pennsylvania reversed and reinstated the order of the Commission, concluding that the trial court had merely substituted its judgment for that of the Commission.

The United States Supreme Court reversed the State Supreme Court. As we construe the decision, the Court held that the trial court had construed the scope of review provided by the Public Service Company Act of Pennsylvania to authorize an appropriate judicial review of the constitutional issue of confiscation, but that the court of last resort’s opinion construed the review section of the Act so as to deny the water company a “fair opportunity” for submitting a constitutional issue for judicial determination.

The review sections of the Pennsylvania Public Service Law provided in one part that the decisions and orders of the Commission, “shall be and remain conclusive upon all parties affected thereby unless set aside, annulled or modified in an appeal taken as provided in this act.” Another section provided that on appeal the court should “determine whether or not the order appealed from is reasonable and in conformity with the law.” Implicit in the Supreme Court’s opinion is the fact that such a scope of review is subject to a wide variety of interpretations and that the one evinced by the court of last resort in Pennsylvania was too narrow to provide a fair opportunity for appropriate judicial review of an alleged constitutional deprivation.

We think the following quote supports our analysis of the opinion:

“Looking at the entire opinion we are compelled to conclude that the Supreme Court interpreted the statute as withholding from the courts power to determine the question of confiscation according to their own independent judgment when the action of the commission comes to be considered on appeal.
The order here involved prescribed a complete schedule of maximum future rates and was legislative in character, (citations omitted.) In all such cases, if the owner claims confiscation of his property will result, the state must provide a fair opportunity for submitting that issue to a judicial tribunal for determination upon its own independent judgment as to both law and facts; otherwise the order is void because [it is] in conflict with the due process clause, Fourteenth Amendment.
The Supreme Court of Pennsylvania has not ruled upon effect or meaning of section 31, or expressed any view concerning it.
But for the opinion of the Supreme Court in the present cause, this would seem to empower the Superior Court judicially to hear and determine all objections to an order on appeal and to make its jurisdiction in respect thereto exclusive. Of this the latter court apparently entertained no doubt; and certainly counsel did not fatally err by adopting that view, whatever meaning finally may be attributed to section 31.
Without doubt the duties of the courts upon appeals under the act are judicial in character — not legislative, as in Prentis v. Atlantic Coast Line, [211 U.S. 210, 29 Sup.Ct. 67, 53 L.Ed. 150]. This is not disputed; but their jurisdiction, as ruled by the Supreme Court, stopped short of what must be plainly intrusted to some court in order that there may be due process of law.
Plaintiff in error has not had proper opportunity for an adequate judicial hearing as to confiscation; and unless such an opportunity is now available, and can be definitely indicated by the court below in the exercise of its power finally to construe laws of the state (including of course section 31), the challenged order is invalid.” 253 U.S. at 289, 290, 291 40 S.Ct. at 528.

But for the use of the phraseology, “for determination upon its own independent judgment as to both law and facts” Ben Avon would be in harmony with prior and subsequent decisions of the United States Supreme Court. The judicial confusion spawned by the language has been monumental. It has resulted in some decisions to the effect that the bare allegation of confiscation triggers the constitutional issue of deprivation of property without due process of law and commands a broad scope of review equivalent to a de novo trial. Such decisions are patently beyond the authority of the judiciary in reviewing for constitutional infirmities in legislative enactments or the decisions of legislative agencies. See In re Cumberland Power Co., 147 Tenn. 504, 249 S.W. 818 (1922) and Hoover Motor Exp. Co., Inc. et a1. v. Railroad & Public Utilities Commission et al., 195 Tenn. 593, 261 S.W.2d 233 (1953). We are also persuaded that the Ben Avon court did not view its decision as a departure from prior cases on the subject.

Sixteen (16) years after Ben Avon the Supreme Court extensively addressed the scope of judicial review upon the constitutional issue of confiscation. In St. Joseph Stock Yards Company v. United States, 298 U.S. 38, 56 S.Ct. 720, 80 L.Ed. 1033 (1936), the Secretary of Agriculture had prescribed maximum rates that could be charged by the St. Joseph Company for its services pursuant to the provisions of the Packers and Stockyards Act of 1921.

The rates fixed by the Secretary of Agriculture were alleged by the company to be so low as to amount to a confiscation of its substantial capital investment. Upon review in the Supreme Court the St. Joseph Company complained that the district court had failed to exercise its independent judgment upon the facts, relying upon Ben Avon. The substance of the Court’s response to reliance upon the independent judgment rule begins with the following:

“The court does not sit as a board of revision to substitute its judgment for that of the Legislature or its agents as to matters within the province of either, (citations omitted.) When the Legislature itself acts within the broad field of legislative discretion, its determinations are conclusive. When the Legislature appoints an agent to act within that sphere of legislative authority, it may endow the agent with power to make findings of fact which are conclusive, provided the requirements of due process which are specially applicable to such an agency are met, as in according a fair hearing and acting upon evidence and not arbitrarily, (citations omitted.) In such cases the judicial inquiry into the facts goes no further than to ascertain whether there is evidence to support the findings, and the question of the weight of the evidence in determining, issues of fact lies with the legislative agency acting within its statutory authority.” 298 U.S. at 51, 56 S.Ct. at 725.

Chief Justice Hughes, writing for the Court, then observes that the constitutional limits to the rate-making power are the deprivation of property without due process of law and that like any other legislative action it is necessarily subject to judicial review by courts of competent jurisdiction to the end that the Constitution as the supreme law of the land may be maintained. Specifically turning to the judicial role in such circumstances the Court said:

“But this judicial duty to exercise an independent judgment does not require or justify disregard of the weight which may properly attach to findings upon hearing and evidence. On the contrary, the judicial duty is performed in the light of the proceedings already had and may be greatly facilitated by the assembling and analysis of the facts in the course of the legislative determination. Judicial judgment may be none the less appropriately independent because informed and aided by the sifting procedure of an expert legislative agency. Moreover, as the question is whether the legislative action has passed beyond the lowest limit of the permitted zone of reasonableness into the forbidden reaches of confiscation, judicial scrutiny must of necessity take into account the entire legislative process, including the reasoning and findings upon which the legislative action rests. We have said that ‘in a question of rate-making there is a strong presumption in favor of the conclusions reached by an experienced administrative body after a full hearing.’ Darnell v. Edwards, 244 U.S. 564, 569, 37 S.Ct. 701, 703, 61 L.Ed. 1317. The established principle which guides the court in the exercise of its judgment on the entire case is that the complaining party carries the burden of making a convincing showing and that the court will not interfere with the exercise of the rate-making power unless confiscation is clearly established, (citations omitted.)” 298 U.S. at 53, 56 S.Ct. at 726.

While paying some lip service to the expression “independent judgment” the Court circumscribed the limits of judicial review by these caVeats: (1) the Court should not substitute its judgment for that of the legislative agency; (2) the Legislature may endow an agency or commission with the power to make findings of fact which are conclusive, provided due process requirements are met; (3) the weighing of evidence lies with the legislative agency and judicial inquiry ends with an ascertainment that there is evidence to support the findings; (4) courts will not interfere with the rate-making power unless confiscation is clearly established and (5) confiscation is not established unless the rates prescribed are beyond the lowest limits of the permitted zone of reasonableness.

In our opinion, these limitations on judicial review are antagonistic to the concept of the independent judgment rule that has evolved from Ben Avon.

No significant decision of the United States Supreme Court since St. Joseph has utilized the independent judgment rule, although many have involved alleged confiscation. Most leading administrative law authorities agree that Ben Avon has been overruled sub silentio. The following quotation from Railroad Comm'n of Texas v. Rowan & Nichols, an oil and gas conservation case in which agency action was alleged by producers to be confiscatory, could be characterized as the death knell of the doctrine:

“A controversy like this always calls for fresh reminder that courts must not substitute their notions of expediency and fairness for those which have guided the agencies to whom the formulation and execution of policy have been entrusted.
. [i]t would be presumptuous for courts, on the basis of conflicting expert testimony, to deem the view of the administrative tribunal, acting under legislative authority, offensive to the Fourteenth Amendment.” 310 U.S. at 580, 581, 582, 60 S.Ct. at 1024.

Recently in the Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968), gas operators alleged, in so many words, that a Federal Power Commission area rate scheme was confiscatory. The Supreme Court merely applied the substantial evidence rule in view of these cases stating:

“Section 19(b) of the Natural Gas Act provides without qualification that the ‘finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.’ More important, we have heretofore emphasized that Congress has entrusted the regulation of the natural gas industry to the informed judgment of the Commission, and not to the preferences of reviewing courts. A presumption of validity therefore attaches to each exercise of the Commission’s expertise, and those who would overturn the Commission’s judgment undertake ‘the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences.' FPC v. Hope Natural Gas Co., supra, 320 U.S., at 602, 64 S.Ct., at 288. We are not obliged to examine each detail of the Commission’s decision; if the ‘total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end.’ Ibid.
Moreover, this Court has often acknowledged that the Commission is not required by the Constitution or the Natural Gas Act to adopt as just and reasonable any particular rate level; rather, courts are without authority to set aside any rate selected by the Commission which is within a ‘zone of reasonableness.’ FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 585, 62 S.Ct. 736, 743, 86 L.Ed. 1037. No other rule would be consonant with the broad responsibilities given to the Commission by Congress; it must be free, within the limitations imposed by pertinent constitutional and statutory commands, to devise methods of regulation capable of equitably reconciling diverse and conflicting interests. It is on these premises that we proceed to assess the Commission’s orders.” 390 U.S. at 767, 88 S.Ct. at 1360.

IV.

Counsel for both sides have cited cases of our sister states in which the independent judgment rule is either still the present scope of review, or has been specifically rejected. It is acknowledged that there is still a split of authority on this issue in state jurisdictions. See, B. Schwartz, Administrative Law (1976); I. A. Glick, Independent Judicial Review of Administrative Ratemaking, The Rise and Demise of the Ben Avon Doctrine, 40 Ford.L.Rev. 305 (1971). Alabama, California and Massachusetts still adhere to Ben Avon. Alaska, Maine, Michigan, and New York have departed from Ben Avon and the independent judgment rule. The common ground in these latter decisions is that subsequent United States Supreme Court eases either eroded or failed to mention Ben Avon and thus destroyed its vitality. Perhaps the Supreme Court of New York (Appellate Division, Third Department) best summarizes the modern opinion of Ben Avon:

“So much has been critically said or left unsaid about the underlying principle of Ben Avon by the courts and by authoritative writers that the strength and substance of it has been dissipated.
Finally, it may be noted that lacking a constitutional basis for the rule, the policy reasons for not recognizing it are many and obvious. There should be an end to legal process. The courts should not be overburdened with parallel determination of disputes already decided by agencies of tested proficiency in the administrative field. The time consumed, the expense involved, the cumbersome procedures, and the loss of public confidence in administrative agencies all militate against the maintenance of a dual system of determining issues in rate cases.” 320 N.Y.S.2d at 285, 286.

V.

We conclude that the Supreme Court has abandoned the independent judgment rule of Ben Avon and that the substantial evidence test satisfies federal constitutional law. We reject the independent judgment rule as controlling Tennessee constitutional law and hold that the scope of review articulated in T.C.A. § 4-523(h) provides adequate standards, within constitutional limits, for judicial determination of the issue of confiscation in rate cases.

Tennessee Code Annotated § 4-523(h) provides that a court may reverse or modify the PSC if the rights of the petitioner have been prejudiced because the decision is:

“(1) in violation of constitutional or statutory provisions;
(2) in excess of the statutory authority of the agency;
(3) made upon unlawful procedure;
(4) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion”

If the rates prescribed by the PSC are, in fact, confiscatory, its decision is in violation of constitutional provisions, and arbitrary, capricious and an abuse of discretion. An adjudication of confiscation requires a finding that the rates have passed beyond arbitrariness, capriciousness or an abuse of discretion. Thus, relief from confiscatory action by the Commission is available.

Subsection (5) requires a court to determine that the Commission’s action is supported by both substantial and material evidence, and in doing so, “shall take into account whatever in the record fairly detracts from its weight, but the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.”

With respect to the action of legislative agencies, the broadest scope of judicial review, de novo, is prohibited by the separation of powers doctrine. In re Cumberland Power Co., supra, and Hoover Motor Exp. Co., Inc. et al. v. Railroad & Public Utilities Commission et al., supra. On the other hand, relief for petitioner from denial of due process, including confiscatory action, is a required function of the judiciary, as guardians of the Constitution. The Administrative Procedures Act provides a single set of standards that will enable Tennessee courts to adequately review PSC decisions, within constitutional limits, and it should be applied to this case and all cases not finally adjudicated. The additional comments on the effect of the UAPA on proceedings before PSC and review of its actions in United Inter-Mountain Telephone Company v. Public Service Commission, supra, are, of course, applicable to this and future cases.

VI.

It follows that it would be inappropriate for the Court to review the action of the learned Chancellor at this time. The additional evidence presented in Chancery Court, not heard by PSC, must now conform to the tests prescribed in T.C.A. § 4-523(e) or (g). We cannot determine whether the independent judgment standard, as applied by the Chancellor, was or was not indistinguishable from the review required by T.C.A. § 4-523(h).

This case is remanded to the PSC for redetermination of a reasonable rate of return based upon the present record and additional evidence bearing upon GT’s actual experience, and factors relevant thereto. The order of June 4, 1976, will remain in effect until further action by the PSC.

The costs of this appeal will be divided equally between the parties.

COOPER, C. J, and HENRY, BROCK and HARBISON, JJ., concur.

      . This sentence is extensively quoted as the holding of the case.

      . See e. g. Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944); Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037 (1942); Railroad Commission v. Rowan and Nichols Oil Co., 310 U.S. 573, 60 S.Ct. 1021, 84 L.Ed. 1368 (1940).

      . See, B. Schwartz, Administrative Law (1976) § 223; Davis, Administrative Law Text (1972) § 29.08; Gelhorn and Byse, Administrative Law; Cases and Comments (1974) § 9.

      . General Telephone Company of Southeast v. Alabama Public Service Commission, Ala., 335 So.2d 151 (1976).

      . Bixby v. Pierno, 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242 (1971).

      . Opinion of the Justices, 328 Mass. 679, 106 N.E.2d 259 (1952).

      . Keiner v. City of Anchorage, 378 P.2d 406 (Alaska, 1963).

      . Frank v. Assessors of Skowhegan, 329 A.2d 167 (Me.1974).

      . Michigan Consolidated Gas Co. v. Michigan Public Service Comm., 389 Mich. 624, 209 N.W.2d 210 (1973).

      . New York Telephone Co. v. Public Service Comm’n, 36 A.D.2d 261, 320 N.Y.S.2d 280 (1971).