author: SOMERVILLE, Judge. KENNEDY, Judge,

text:
    STATE ex rel. MARCO SALES, INC., and Dierberg Service Company, Inc., both Missouri corporations, Relators-Respondents, and Union Electric Company, the Trane Company, and the Office of the Public Counsel of the State of Missouri, Intervenors-Relators-Respondents, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Appellant, and Laclede Gas Company, Intervenor-Appellant.
    No. WD 34,997.
    Missouri Court of Appeals, Western District.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.

      Eric Kendall Banks, Missouri Public Serv. Comm’n, Jefferson City, for appellant Public Service Commission.
    Robert M. Lee and Donald L. Godiner, St. Louis, for intervenor-appellant Laclede Gas Co.
    Leland B. Curtis, Clayton, for relators-re-spondents Marco Sales, Inc. and Dierberg Service Co., Inc.
    E. Ronald Hill, Union Electric Company, St. Louis, for intervenor-relator-respondent Union Electric Co.
    Thomas J. Downey, Jefferson City, for intervenor-relator-respondent The Trane Co.
    Richard W. French, Asst. Public Counsel, Jefferson City, for Office of the Public Counsel of the State of Missouri.
    Before PRITCHARD, P.J., and SOMER-VILLE and KENNEDY, JJ.
   SOMERVILLE, Judge.

This appeal arises from a utility rate order entered by the Public Service Commission of Missouri (hereinafter Commission). The controversial order authorized Laclede Gas Company (hereinafter Laclede) to impose, on an interim basis, a surcharge tariff on gas service customers who supplement their space heating needs with electric add-on heat pumps.

Heat pumps, devices of recent origin, are a technological adaptation of a scientific fact discovered by an English scientist, Lord Kelvin, in 1852 — there is heat in cold air down to absolute zero (minus 459.69 degrees Fahrenheit). Their versatility is exemplified by their ability to both heat and cool. Simplistically stated, they can serve as central air conditioners during warm seasons and then, during cold seasons, reverse their operation and extract heat from outside air for internal heating purposes. Their use in conjunction with commercial heating systems as supplemental sources of heat accelerated with the advent of the recent energy crisis.

A potential aura of confusion arising from alignment of the parties calls for an explanation. Marco Sales, Inc., a distributor of electric add-on heat pumps in the St. Louis area, and Dierberg Service Company, Inc., one of its dealers (hereinafter collectively referred to as Marco), filed a formal complaint with the Commission charging that Laclede was in violation of § 393.130, RSMo 1978, by its unilateral promulgation of a surcharge on gas customers utilizing electric add-on heat pumps without obtaining tariff approval from the Commission. Laclede answered the complaint lodged by Marco and, in addition, filed a proposed surcharge tariff whose approval by order of the Commission is the genesis of the present appeal. Marco, The Trane Company (hereinafter Trane), and Union Electric Company (hereinafter Union Electric) were permitted to intervene in the tariff case at the Commission level. The complaint and proposed surcharge tariff were consolidated for hearing before the Commission.

The tariff order in question, paraphrased in general terms, authorized Laclede to impose a uniform monthly surcharge (approximately $15.00 per month) on each gas customer with an electric add-on heat pump during the months of November, December, January, February, March and April. After the order was handed down by the Commission, Marco filed an application for rehearing pursuant to § 386.500, RSMo 1978, which was denied by the Commission. Thereupon, Marco filed an application for review in the Circuit Court of Cole County as provided in § 386.510, RSMo 1978. The Circuit Court of Cole County granted Marco’s application for review and also permitted Laclede to intervene as a respondent therein, and the Office of the Public Counsel, Trane and Union Electric to intervene as relators therein.

The Circuit Court of Cole County reversed the order of the Commission approving the surcharge tariff on Laclede’s gas customers using electric add-on heat pumps and ordered Laclede to refund any and all monies collected under the interim surcharge tariff to affected customers. The order of reversal entered by the Circuit Court of Cole County was accompanied by extensive findings of fact. Those deemed most pertinent to the timely appeals of the Commission and Laclede to this court are recapitulated as follows: (1) There was no competent and substantial evidence upon the whole record to support the Commission’s finding that Laclede’s use of 34 degrees Fahrenheit as a “balance” or “changeover” point for the average electric add-on heat pump was reasonable; (2) There was no competent and substantial evidence upon the whole record to support the Commission’s finding that Laclede would suffer a revenue deficiency by serving gas customers with electric add-on heat pumps under its current tariff; and (3) There was no competent and substantial evidence upon the whole record to support the Commission’s finding that electric add-on heat pumps, due to unique and inherent operating characteristics, have an impact on Laclede’s load factor different from that of other supplementary heating devices.

The scope of judicial review of decisions of the Commission is forged by Mo. Const. Art. V, § 18 (as amended 1976 —formerly Art. V, § 22) providing that “such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record.” This constitutional mandate establishes a minimum standard of judicial review which may be statutorily broadened so long as doing so is not in conflict with or repugnant to the federal and state constitutions. State ex rel. St. Louis Pub. Serv. Co. v. Pub. Serv. Comm’n, 365 Mo. 1032, 291 S.W.2d 95, 101-02 (1956). Judicial inquiry into the “reasonableness or lawfulness” of decisions or orders of the Commission prescribed by § 386.510, RSMo 1978, however, is nothing more than a reaffirmation of the constitutional mandate as questions of “lawfulness” turn on whether the Commission’s orders or decisions are statutorily authorized and questions of “reasonableness” turn on whether there is competent and substantial evidence upon the whole record to support them. State ex rel. Ozark Elec. Coop. v. Pub. Serv. Comm’n, 527 S.W.2d 390, 392 (Mo.App.1975). In the context at hand, “substantial evidence” means evidence “which, if true,” has “probative force upon the issues” and “implies and comprehends competent, not incompetent evidence.” State ex rel. Rice v. Pub. Serv. Comm’n, 359 Mo. 109, 220 S.W.2d 61, 64 (banc 1949).

Cognizance is also taken of certain tangential attributes associated with judicial review of orders and decisions of the. Commission: (1) The decision of the Commission, not the judgment of the Circuit Court, is the subject of appellate review — State ex rel. Pub. Water Supply Dist. No. 8 v. Pub. Serv. Comm’n, 600 S.W.2d 147, 149 (Mo.App.1980); (2) Orders and decisions of the Commission are “pri-ma facie” lawful and reasonable “until found otherwise” when judicially challenged — § 386.270, RSMo 1978; (3) The party complaining of an order or decision of the Commission must “show by clear and satisfactory evidence” that the order or decision of the Commission “is unreasonable or unlawful” as the case may be — § 386.430, RSMo 1978; and (4) Although courts on judicial review need not defer to the Commission on questions of “lawfulness”, they cannot substitute their judgment for that of the Commission where its order or decision is supported by competent and substantial evidence upon the record as a whole — State ex rel. Util. Consumers Council of Mo., Inc. v. Pub. Serv. Comm’n, 585 S.W.2d 41, 47 (Mo. banc 1979).

The Commission and Laclede stridently contend on appeal that the surcharge tariff was, in all respects, supported by competent and substantial evidence upon the whole record, but, in the unlikely event that it was not, the trial court erred in ordering Laclede to refund to affected customers all monies collected under the interim surcharge tariff from November 1, 1982, to June 2, 1983. Relators-respon-dents concede in their briefs on appeal that under State ex rel. Kansas City v. Pub. Serv. Comm’n, 362 Mo. 786, 244 S.W.2d 110 (1951), cited and relied upon by Lac-lede, the Circuit Court of Cole County exceeded its authority in ordering Laclede to refund all monies collected under the interim surcharge tariff.

Perforce, as succinctly put by Laclede in its reply brief, “[a]ll of the parties to this appeal concur that the issue to be resolved by ... [the Missouri Court of Appeals, Western District] is whether or not the Commission’s Report and Order is supported by competent and substantial evidence.”

From Laclede’s vantage point, the surcharge tariff is purportedly justified on two grounds: (1) the comprehensive nature of its General Service Rate structure; and (2) the mean or average temperature “balance” or “changeover” point at which electric add-on pumps cease to be operational. Attention first focuses on Laclede’s General Service Rate structure. According to Laclede, it has an inexpensive source of gas available to meet consumer demand when the outside temperature is above 34 degrees Fahrenheit. However, when the outside temperature falls below 34 degrees Fahrenheit increased consumer demand must be met by more expensive sources of gas. Nevertheless, Laclede’s rate per unit of gas to its customers remains constant as it reflects an overall margin of return for all gas consumed by an average customer on a constant rate basis. Advancing its argument a step further, Laclede asserts that its overall margin of return between the cost of gas and the rate charged is substantially narrowed by customers whose demands for gas principally occur when the outside temperature falls below 34 degrees Fahrenheit. Suffice it to say, Laclede contends that gas customers with electric add-on heat pumps constitute a class whose demands for gas substantially increase when the outside temperature falls below 34 degrees Fahrenheit. To alleviate the narrowing margin between gas rates and cost of gas ostensibly occasioned thereby, Laclede conceived the surcharge tariff on gas customers supplementing their heating needs with electric add-on heat pumps.

Attention next focuses on the mean or average temperature “balance” ' or “changeover” point of 34 degrees Fahrenheit seized upon by Laclede as the structural core of its proposed surcharge tariff. Relying upon syllogism and mathematical calculations, Laclede advances the proposition that a surcharge tariff of $15.00 per month for each month starting in November and ending in April (totaling $90.00) would offset its theoretically narrowing margin of return between the cost of gas and the constant rate charge occasioned by customers with electric add-on heat pumps whose gas needs must be met by gas obtained by Laclede at premium prices. At this juncture the significance of the following observations is self-evident — Laclede’s use of 34 degrees Fahrenheit as a mean or average temperature “balance” or “changeover” point at which electric add-on heat pumps cease to be operational is the linch-pin of the controversial surcharge tariff. Hypothetically, if the mean or average temperature “balance” or “changeover” point at which electric add-on heat pumps cease to be operational is higher than 34 degrees Fahrenheit, then the surcharge tariff approved by the Commission is proportionally unfair and discriminatory with respect to the majority of gas customers with electric add-on heat pumps. Conversely, if the mean or average temperature “balance” or “changeover” point at which electric add-on heat pumps cease to be operational is lower than 34 degrees Fahrenheit, then the surcharge tariff approved by the Commission is proportionately unfair and discriminatory with respect to gas customers who do not supplement their heating needs with electric add-on heat pumps.

The record in this ease is fragmented with random bits of evidence regarding the temperature “balance” or “changeover” point at which various electric add-on heat pumps, subject to innumerable variables such as size, age, design, and premise insulation factors, cease to be operational. The temperature “balance” or “changeover” points mentioned run the gamut from approximately 44 degrees Fahrenheit to approximately 0 degrees Fahrenheit. There was no evidence, estimates or otherwise, of the market share of any of the various heat pumps just mentioned. In sum, none of the random bits of evidence, singularly or collectively, provided a foundation for establishing 34 degrees Fahrenheit as a mean or average temperature “balance” or “changeover” point at which electric add-on heat pumps cease to be operational.

Laclede attempts to weld the linch-pin of its surcharge tariff by emphasizing the testimony of one of its employees, who, although absent indicating or claiming any expertise in the field of electric add-on heat pumps, and absent making any “independent studies”, concluded that 34 degrees Fahrenheit represented a mean or average temperature “balance” or “changeover” point at which electric add-on heat pumps cease to be operational on the basis of some “ads” he had read and what others had told him. The record has been searched in vain for other evidence, whatever its character, which could arguably be said to support 34 degrees Fahrenheit as a mean or average temperature “balance” or “changeover” point at which electric add-on heat pumps cease to be operational. It is patent that the only evidence Laclede and the Commission have to rely on to preserve the integrity of their surcharge tariff is the unmitigated hearsay heretofore mentioned.

Cases are legion that hearsay evidence does not rise to the level of “competent and substantial evidence” within the ambit of Mo. Const. Art. V, § 18. State ex rel. DeWeese v. Morris, 359 Mo. 194, 221 S.W.2d 206, 209 (1949); Dickinson v. Lueckenhoff, 598 S.W.2d 560, 561-62 (Mo.App.1980); Wilson v. Labor and Indus. Relations Comm’n, 573 S.W.2d 118, 120-21 (Mo.App.1978); Bartholomew v. Bd. of Zoning Adjustment, 307 S.W.2d 730, 733 (Mo.App.1957); State ex rel. Horn v. Randall, 275 S.W.2d 758, 763 (Mo.App.1955); and Dittmeier v. Missouri Real Estate Comm’n, 237 S.W.2d 201, 206 (Mo.App.1951).

Laclede and the Commission seek to avoid the fatal consequence of the eviden-tiary deficiency by the classic hue and cry of virtually limitless discretion possessed by the Commission, the admonition that courts should not substitute their judgment for that of the Commission, and the indulgence of deference for decisions of the Commission because of its expertise in the complicated and highly sophisticated matters it is legislatively ordained to resolve. Judicial recognition thereof when and where appropriate, however, does not dictate blind acceptance of every order cut and every decision handed down by the Commission. Indiscriminate approval of orders and decisions of the Commission, without subjecting them to the rigors of Mo. Const. Art. V, § 18, is an abdication of judicial responsibility. Unbridled bureaucracy is the subtle destroyer of people’s rights and Mo. Const. Art. V, § 18, is their response.

Having concluded that there was no “competent and substantial evidence” upon the whole record to support a finding by the Commission that 34 degrees Fahrenheit was a mean or average temperature “balance” or “changeover” point at which electric add-on heat pumps cease to be operational, the surcharge tariff sought by Lac-lede and approved by the Commission falls apart for want of a linch-pin. Perforce, the Circuit Court of Cole County was eminently justified when it invalidated the surcharge tariff on the ground heretofore discussed.

Although it is unnecessary from a dispo-sitional standpoint to analyze or discuss the other invalidating grounds relied on by the Circuit Court of Cole County, one in particular merits special attention because of its potential aftermath. The Circuit Court of Cole County concluded that there was no competent and substantial evidence to support a finding by the Commission that users of electric add-on heat pumps legally constituted a separate, distinct class for rate purposes and, concomitantly, the surcharge tariff was discriminatory.

Section 393.130.3, RSMo 1978, provides, inter alia, that no “gas corporation” shall subject “any particular person, corporation or locality or any particular description of service to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.” Admittedly, “ ‘[a] discrimination as to rates is not unlawful where based upon a reasonable classification corresponding to actual differences in the situation of the consumers or the furnishing of the service.’ ” Smith v. Pub. Serv. Comm’n, 351 S.W.2d 768, 771 (Mo.1961). The court in Smith goes on to point out, however, that “ ‘the reasonableness of the basis of the classification must appear; and whether a discrimination is unlawful and unjust or the circumstances substantially dissimilar is usually a question of fact.’ ” Id. 771. Thus, justification vel non for grouping gas customers with electric add-on heat pumps into a separate rate class goes full circle and raises the specter of whether competent and substantial evidence existed to support the classification as reasonable. Briefly, Laclede and the Commission submit that electric add-on heat pumps possess “distinguishing characteristics” which are “inherently determinable” by virtue of being designed to totally eliminate the use of gas for heating purposes for prolonged periods of time as opposed to other supplemental heat devices, e.g. kerosene space heaters, wood burning fireplaces and solar units. This court observes, in the frame of reference at hand, that the evidence relied upon by Laclede and the Commission to fill the role of “competent and substantial evidence” treads dangerously close to, if not in, the quicksands of speculation, conjecture and surmise.

There is no escape from the fact that the innovative features of electric add-on heat pumps have brought about a head-on confrontation between manufacturers and users of electric add-on heat pumps on the one hand and consumer oriented natural gas utilities on the other hand. This court is not so naive as to believe that the instant opinion has put this confrontation to final rest. This court is also aware that a seasonal rate differential, i.e., a lower rate applicable when the outside temperature is 34 degrees Fahrenheit or better and a higher rate applicable when the outside temperature is below 34 degrees Fahrenheit, would probably be looked upon with disfavor by Laclede because of its adverse psychological impact upon its gas customers. Psychologically, the marketplace is geared to quantity discounts not increases.

A few conclusionary remarks are in order regarding Laclede’s contention, and Marco’s acquiescence therein, that under State ex rel. Kansas City v. Pub. Serv. Comm’n, supra, the trial court erred in ordering Laclede to refund to affected customers all monies collected under the interim surcharge tariff from November 1, 1982, to and including June 2, 1983. The controversial surcharge tariff was not suspended during the pendency of the writ of review pursuant to § 386.520, RSMo 1978. Both the instant case and State ex rel. Kansas City v. Pub. Serv. Comm’n, supra, are distinguishable from State ex rel. Util. Consumers Council of Mo., Inc. v. Pub. Serv. Comm’n, supra. Having concluded that Kansas City rather than Consumers Council controls, it necessarily follows that the trial court erred in ordering Lac-lede to refund all monies collected under the interim surcharge tariff from November 1, 1982, to and including June 2, 1983.

That portion of the order or judgment of the Circuit Court of Cole County reversing and invalidating the interim surcharge tariff on gas customers with electric add-on heat pumps sought by Laclede and approved by the Commission on October 20, 1982, effective March 1, 1982, is hereby affirmed; however, that portion of the order or judgment of the Circuit Court of Cole County ordering Laclede to refund to affected customers all monies collected under the interim surcharge tariff from November 1, 1982, to and including June 2, 1983, is reversed.

Judgment affirmed in part and reversed in part.

PRITCHARD, P.J., concurs.

KENNEDY, J., dissents in separate dissenting opinion.

KENNEDY, Judge,

dissenting.

I am unable at several points to agree with the majority opinion. I would reverse the trial court judgment and would reinstate the order of the Commission.

The validity of separate classification of heat pump users for gas tariff purposes. Scope of judicial review of Public Service Commission order.

I think the first question which must be decided here, and which the majority opinion leaves open, is whether the imposition of a surcharge upon a heat pump user is permitted at all. If that question is not decided, the parties are left in doubt, even if competent and substantial evidence were to establish (as the majority opinion says it does not) the proper changeover point, whether the establishment of a different rate structure for heat pump users is a permissible classification. The question is presented here. It should be decided.

This is a tremendously expensive case, involving hundreds of hours’ time and corresponding expense. Must the parties start over, present their case again to the Commission, and go through the appeal process again — only to find out on a second trip to this court that the classification was arbitrary and capricious and therefore impermissible?

So I would, first of all, decide that most basic point.

Second, it should be decided to approve the classification, for the following reasons:

The Commission decided that the separate classification for heat pump users was a permissible classification, against the contention of the heat pump side of this case that the surcharge constituted a discriminatory and unreasonable classification. I would hold that the classification is permissible, and that the order of the Commission could not be set aside as unlawful on the ground that the classification was arbitrary and unreasonable.

If we had been sitting as a Commission deciding this case originally, we might have decided that as a matter of regulatory policy, the heat pump surcharge should not be allowed. But we may not, sitting as a reviewing court, substitute our judgment for that of the Commission. We may not in our reviewing role so limit the Commission’s discretion. The business of utility regulation is a highly complex business. A reasoned decision on the question of the heat pump surcharge calls for a balancing of a wide range of economic and social factors, done by arbiters whose experience and learning equip them for that task. Ours is a more limited role; we review only for “unlawfulness” or “unreasonableness”. Sec. 386.510, RSMo 1978. It has become trite to say, and yet we need continually to remind ourselves, that we may not substitute our judgment for that of the Commission in matters which have been entrusted to it by law. State ex rel. Utility Consumers Council of Missouri, Inc. v. Public Service Commission, 585 S.W.2d 41, 47 (Mo. banc 1979); State ex rel. Utility Consumers Council of Missouri, Inc. v. Public Service Commission, 606 S.W.2d 222, 223 (Mo.App.1980), cert. denied, 450 U.S. 1042, 101 S.Ct. 1761, 68 L.Ed.2d 240 (1981).

On this record I am unable to say that there is anything unlawful or unreasonable about the classification which places heat pump users in a separate category for purposes of the surcharge. It is not an arbitrary or a capricious classification; it is based upon realistic differences between the gas consumer with heat pump and the gas consumer without heat pump. The former uses less gas and what he uses is more expensive gas at the wholesale level. The heat pump user begins to use gas in quantity only when the temperature goes below 34 degrees Fahrenheit, which is the point at which Laclede begins to draw upon its more expensive gas. The “peak demand factor” for heat pump users is 30 percent higher than for non-heat pump users. (The “peak demand factor” is arrived at by dividing amount used in January, the coldest month, by Vn of the amount used during the other 11 months.)

There was no dispute that the gas company’s revenue for gas sales to heat pump customers was insufficient. Only the amount of the shortfall was debated. The Commission found, upon ample evidence, that that shortfall was $90 per annum. The surcharge was fixed to compensate for that. If the utility’s cost of the gas is evenly distributed over the more expensive and the less expensive gas, and evenly distributed (per unit) over the entire customer base, then the customer who uses both the more expensive and the less expensive gas (i.e., the non-heat pump user) is subsidizing the customer who uses only the more expensive gas (i.e., the heat pump user) — or else the gas company is receiving less in rates than it is entitled to receive. The surcharge is a way of re-allocating the cost more equitably among residential gas users. The wisdom of the surcharge may be debatable — but that is only to say that it is not arbitrary, and therefore that it is not to be overturned by the reviewing court.

The majority opinion takes seriously the surcharge opponents’ contention that heat pumps are not unlike other auxiliary heat sources, such as stoves, burning wood, coal or kerosene, fireplaces or solar devices. The Commission, however, plausibly and correctly found that the heat pump principle, in its effect upon Laclede’s cost of supplying gas, was inherently different from that of such other auxiliary heating devices. Unlike the predictable and measurable impact of the heat pump, the impact of the other devices is entirely random. Their use depends upon many variables other than the outside temperature, including the user’s supply of fuel and individual preference or taste. They typically are used in only one room, not in the whole house. Of course, when these devices save gas they are as likely to save it at the coldest temperatures (when Laclede’s gas costs are at the highest) as at the warmer, adding nothing at all to the peaking factor which is the real mischief-maker from Lac-lede’s standpoint. There is nothing arbitrary or capricious about treating heat pumps differently than those devices.

Competence and substantiality of evidence to support Commission order.

Passing over the question whether Mr. Davis’s testimony alone would have been sufficient to support the Commission’s finding (as I believe it was and as the majority opinion holds it was not), the use of the 34-degree-Fahrenheit changeover point as falling within a reasonable range was supported by other evidence in the record. Witnesses for the surcharge opponents who were undoubtedly qualified as experts in technical operation of heat pumps gave testimony which would support the range of 44 degrees Fahrenheit on the high side and 27 degrees Fahrenheit on the low side. This testimony was given to support a higher changeover temperature than 34 degrees Fahrenheit, if there should be any surcharge at all. The reason for such testimony from the surcharge opponents was that the higher changeover point would result in a smaller revenue deficiency and therefore a smaller surcharge. Mr. Wagner, an electrical engineer and special projects manager for Union Electric, opted for a 40-degree-Fahrenheit changeover point which would result, he calculated, in a revenue deficiency of $77.78 per heat pump customer per annum as opposed to $95.70 at the 34-degree level. His studies included only those two temperatures. Electrical Engineer and Energy consultant Jurgen Worthing, testifying for surcharge opponent Marco Sales Co., computed customer heating costs and savings based upon only three different hypothetical changeover temperatures — 43 degrees, 32 degrees, and 27 degrees. A Union Electric advertisement in the record uses a changeover point of “30 degrees or so”.

This is an abundance of evidence to show that the 34-degree changeover point is a reasonable one, particularly when one takes it into account that the trier of fact is itself an expert in the field in which the witness is testifying. It may use its own expert knowledge, not to supply missing evidence, but to evaluate evidence. 73A C.J.S. Public Administrative Law and Procedure §§ 127(b), 130 (1983); Gaddy v. State Board of Registration for Healing Arts, 397 S.W.2d 347, 355 (Mo.App.1965).

The majority opinion seems to proceed on the erroneous assumption that various units have changeover points ranging from a high of 44 degrees Fahrenheit down to -2 degrees Fahrenheit. It points out that there is no evidence as to how many of each are in use. The idea seems to be that such evidence is necessary to enable the Commission to determine with a degree of mathematical nicety the mean or average changeover point.

Any such study would be wholly useless. While the various units may be capable of operating between the temperatures of 44 degrees Fahrenheit and -2 degrees Fahrenheit, the actual changeover points fall within a much narrower range. They are set by the owner at the desired temperature. The two factors which go into his selection of a changeover temperature are bodily comfort and economics. These considerations indicate a changeover point falling within a range of 43 degrees Fahrenheit to 27 degrees Fahrenheit. This is established by the expert witnesses of the opponents of the heat pump surcharge, earlier referred to.

It was not necessary for the purpose of tariff design to establish with mathematical exactitude the changeover temperature at which the heat pump customers with a higher changeover point and those with a lower changeover point would be in exact equilibrium. All in all, the selection of the 34-degree temperature as the changeover point for the purpose of fixing the amount of the surcharge was reasonable.

Remand instead of outright reversal

If we are to reverse this decision on the evidence point, it should not be reversed outright. It should be remanded to the Commission for rehearing on the limited issue of the correct changeover point. It should be reversed outright only if we decide the basic issue — the permissibility of the classification — adversely to the Commission’s decision.

Davis’s opinion that 34 degrees Fahrenheit was a proper changeover point — which the majority opinion says he was not qualified to give — was in the record, before the Commission, with no objection. The first objection comes on appeal. If we are to exclude this evidence, and hold that its absence leaves Laclede without a submissi-ble case, we should remand.

We have decided, however, that the case should be remanded for a new trial rather than to remand with directions to enter judgment for defendant. While we cannot point to any available evidence that might enable plaintiff to make a submissible case, we can understand that plaintiff’s counsel, having the positive testimony of a witness which, if accepted, would have been sufficient to supply the essential proof, may not have presented all available evidence (particularly of an expert nature) which might aid plaintiff in making a stronger showing.

Prince v. Bennett, 322 S.W.2d 886, 891 (Mo.1959).

I would hold that the Commission’s decision is abundantly supported by the evidence. But if we reverse on the evidence point, I believe the case should be remanded to the Commission for rehearing on the limited issue of the correct changeover point.

      . Compare State ex rel. City of St. Louis v. Public Service Commission, 327 Mo. 318, 36 S.W.2d 947 (1931), where Southwestern Bell converted its telephone system from a manually operated switchboard to a dial or "automatic" system. In doing so, it equipped with a dial at no charge (1) individual line subscriber telephones and (2) the switchboard of private branch exchange (PBX) subscribers. In contrast, Southwestern Bell charged 25 cents per telephone to equip with a dial any individual station telephones connected to the PBX subscriber’s switchboard. The Commission found and the court held not unjustly discriminatory (1) the differing rate treatment under the new system of individual line subscribers and PBX subscribers and (2) the 25 cents per station telephone charge to PBX subscribers under the new system when under the old system PBX users received the same service without the added charge.


source: Caselaw Access Project

author: CRANDALL, Judge.

license: Public Domain

text:
    Melvin RECTOR, et al., Plaintiffs-Respondents, v. MISSOURI DEPARTMENT OF NATURAL RESOURCES, et al., Defendants-Appellants.
    No. 48239.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      Louren R.*Wood, Asst. Atty. Gen., Jefferson City, for defendants-appellants.
    Robert J. Blackwell, St. Louis, for plaintiffs-respondents.
   CRANDALL, Judge.

Defendant, Missouri Department of Natural Resources (DNR), appeals from a judgment in an action for declaration of title and for partition of approximately 115 acres of land in Ste. Genevieve County in the vicinity of Hawn State Park. The DNR appeals from the part of the judgment which declares 38 acres to be subject to a one-half interest in the DNR, and a second one-half interest, divided among various parties, and also appeals from an order of sale of the property.

The DNR argues on appeal that the trial court acted against the weight of the evidence and misapplied the law in (1) concluding DNR had not acquired absolute title through adverse possession, and (2) in concluding plaintiffs were not barred by limitations or laches from bringing this action. The DNR also claims error in the court’s refusal to appoint partition commissioners to determine if partition in kind was practicable rather than ordering a partition sale. We affirm.

This action for declaration of title involved four tracts of land, but we need only be concerned with Tract No. 3, described as follows:

All of the Southeast Quarter of the Southeast Quarter of Section 10, Township 36 North, Range 7 East except a 2-acre tract conveyed by instrument recorded in Book 71 at Page 275, all in Ste. Genevieve County, Mo.

The trial court found that the common source of title to Tract No. 3, which consisted of 38 acres, as well as other tracts involved in this cause of action, was John and Artemesia Rector; and that this tract of land was sold for delinquent taxes in 1937 and was redeemed on October 31, 1939, by surviving Rector children in the following proportions:

Owen Rector.V2
Tilda Rector.V4
Viola Rector Ramsey -.lk

By warranty deed of November 27, 1954, recorded December 4, 1954, the children of Owen Rector conveyed their half interest in the 38 acres along with other land to A.J. Butterfield. Butterfield purported to convey an entire interest in the land to the Missouri State Park Board (predecessor of DNR) by a deed recorded in 1956. The DNR does not assert that the title from Butterfield conveys more than the one-half interest.

Defendant DNR asserts a present ownership of an undivided one-half interest in the 38 acres based on good record title and absolute ownership in fee of the 38 acres based upon adverse possession of the property from 1956 to present.

The Rector family members stipulated that (1) plaintiffs, the six living children of Tilda Rector, hold a one-third interest in the disputed property; (2) four living children of Elmer Rector, deceased son of Til-da, collectively hold one-third; and (3) defendant Mary Vallo Pitts holds a one-third interest through Sadie Rector, and that all these interests are subject to any interest which the DNR might have.

The DNR presented two witnesses to support its claim of adverse possession. George Hosack testified he had been superintendent of Hawn State Park in 1965 and 1966 and had not been assigned there since 1966. He testified that the winter before he arrived markings on trees (blazes), indicating the boundary of the park, had been freshened with blue marks and some brush was cleared on the boundary. He stated that he helped conduct a survey for roads in the park, and that crews cleared a roadway. Hosack also testified about a trail network being established, but the evidence is not clear if any trails were on the land in dispute here. He knew of no other development of this disputed area and knew of no fencing or other boundary markers other than those already mentioned.

The DNR’s other witness was Robert Bonnell, who began working at the park in 1979, the year this action was filed. He testified that blue “No Hunting” signs marked part of the alleged boundary of the park. He did not state how long the signs had been there. He stated there was not enough manpower to make sure hunters stayed off the property. He testified the only development in the disputed area was “the pavement.” Bonnell further testified there was an entrance sign for the park at the western edge of the disputed property but did not state how long the sign had been there.

Plaintiffs’ witness Melvin Rector testified he was raised on the property and now used the disputed area for hunting more than once a year. Other family members hunted there as well. He said family members also rode horses there. He testified he had not seen any blazes or blue marks on the property. He testified that in 1971 or 1972 he saw evidence of a road being built on the disputed property, and this statement came in the context of questioning regarding when he first saw evidence of the state park being developed.

It is not disputed that the public (the state DNR here) can acquire title to real property by adverse possession, just as an individual can. Szombathy v. City of Berkeley, 280 S.W.2d 834, 836 (Mo.1955).

Those claiming title by adverse possession have the burden of proving each element necessary to establish title. Lacy v. Schmitz, 639 S.W.2d 96, 99 (Mo.App.1982). These elements are: “(1) the possession must be hostile and under claim of right; (2) possession must be actual; (3) possession must be open and notorious; (4) possession must be exclusive; and (5) possession must be continuous for the requisite period.” Id. at 99. The period required is ten years. § 516.010, RSMo (1978).

The trial court in effect found that the DNR and the heirs owned this property as tenants in common. Specific rules of law apply to adverse possession cases involving cotenants. In Wunderlich v. Baumgarth, 437 S.W.2d 78 (Mo.1969), the Missouri Supreme Court set out the rule citing Seibert v. Hope, 221 Mo. 630, 120 S.W. 770, 771 (1909);

‘[B]y presumption of law the possession of one tenant in common is the possession of his co-tenants, and it is the settled law of this state that, to establish title in one cotenant as against the others by adverse possession, there must be such outward acts of exclusive ownership of an unequivocal character as to impart notice to the co-tenants that an adverse possession is intended to be asserted against them.’

But the Wunderlich opinion noted an exception to this rule which is applicable to the present case:

However, we think that rule is usually applicable in the cases where it is recognized that the party going into possession is actually a tenant in common. We do not think the rule is strictly applicable in this case. Here, John went into possession under a deed which purported to convey the whole title and it, at the least, constituted color of title.

Wunderlich, 437 S.W.2d at 81. The court then quoted 3 Am.Jur.2d, Adverse Possession, § 177, p. 268 (1962) which states, “if one enters under color of title, claiming the whole for himself, and other necessary conditions of adverse ownership concur, his possession will be adverse to his cotenant.”

The DNR here had color of title for an absolute interest in the tract. Based on Wunderlich, we will analyze the facts under normal adverse possession rules.

The trial court found that the fifth element of adverse possession, that of continuous possession, was the one “most lacking” in this case. The court stated the record was devoid of any evidence as to the activity and efforts of the DNR for a continuous ten-year period. The court held that there was no indication as to whether the boundary line to which Hosack testified was maintained in any fashion to keep the brush cleared or blazes visible. The fact the boundary may have been marked for a period of time more than ten years before the filing of this action, the court noted, was not sufficient. No evidence was presented by the DNR regarding its use of the land from 1966 to 1979.

Defendant argues, citing City of South Greenfield v. Cagle, 591 S.W.2d 156, 159 (Mo.App.1979), that “[w]hen adverse possession is once shown, it will be presumed, in absence of evidence to the contrary, to have continued in the possessor.” This presumption is based upon McDaniels v. Cutburth, 270 S.W. 353, 359 (Mo.1925): “A general rule of presumptions is that, where the existence at one time of a certain condition or state of things of a continuing nature is shown, the presumption arises that such condition or state continues to exist until the contrary is shown.” (Emphasis added.)

In the present case, there was no showing of any continuing possession. Even if the limited activity of marking boundaries and clearing roads could be found to constitute possession, there is no evidence that the projects done in 1965 and 1966 were ever maintained. There was no evidence by the DNR of anyone using the land as a park area. The only activities testified to by the DNR’s witnesses were of short duration and were projects that were not continuous, but rather were projects that ended when the jobs were completed. There was no evidence that the DNR patrolled this land.

We also note Feinstein v. McGuire, 297 S.W.2d 513, 517 (Mo.1957) where this qualification to the Cutburth rule is stated: “However, this presumption should only be allowed where evidence cannot reasonably be obtained as to the true facts and should never be applied where ... the party who would benefit therefrom, knows or has evidence of the actual fact.”

In the present case, it is not clear, but could be presumed, the DNR knew what activities took place on the disputed land from 1966 to 1979. Thus, the DNR should not be able to rely on the presumption stated in Cagle.

Furthermore, the possession which must be continuous involves two concepts: “They are ... present ability to control the land and ... intent to exclude others from such control.” Teson v. Vasquez, 561 S.W.2d 119, 126 (Mo.App.1977). Defendant provided no evidence to show any ability to control this land. This land can be likened to property valuable only for timber, and “the protection thereof against trespassers, looking after the land and making roads, while acts denoting claim of ownership, do not themselves constitute adverse possession.” Hamburg Realty Co. v. Woods, 327 S.W.2d 138, 154 (Mo.1959). Defendant here did not have sufficient control to keep Melvin Rector and others from using the property. The marking off of a boundary also is not sufficient to constitute proof of possession, even if the marking off is by fencing, which was not the case here. Franklin v. House, 533 S.W.2d 243, 245 (Mo.App.1976); see also Conran v. Girvin, 341 S.W.2d 75 (Mo.1960).

Defendant also argues that the trial court failed to take into account the rule regarding color of title: “Less weight is required to support an adverse entry by one with color of title than a bare entry by an intruder under no claim of right.” Cash v. Gilbreath, 507 S.W.2d 931, 935 (Mo.App.1974). We find the DNR’s proof does not even meet this lower standard.

Although the trial court discussed how other elements of adverse possession were not established by the DNR, we need not address those elements, since the failure to prove any element was sufficient to support the court’s finding. The DNR failed to prove any continuous possession.

Defendant DNR asserts as a separate point that plaintiffs are barred by the statute of limitations, § 516.010, RSMo (1978), or by laches, from bringing this action. The statute provides:

No action for the recovery of any lands, tenements or hereditaments, or for the recovery of the possession thereof, shall be commenced, had or maintained by any person, whether citizen, denizen, alien, resident or nonresident of this state, unless it appear that the plaintiff, his ancestor, predecessor, grantor or other person under whom he claims was seized or possessed of the premises in question, within ten years before the commencement of such action.

Defendant cites Hooks v. Spies, 583 S.W.2d 569 (Mo.App.1979) for support of its claim on this point, by arguing the plaintiffs here did not have possession of the property because hunting was the only activity carried out on the land. Dispositive on this issue is this statement from Hooks: “However, where land is vacant or unoccupied by any person the constructive possession is held to have been with the owner of title_ The owner of record title is presumed to have possession in the absence of evidence showing otherwise.” Hooks, 583 S.W.2d at 572-573.

In the present case, the court in effect found both DNR and plaintiffs were owners of record title as cotenants. Both are presumed to have possession in the absence of evidence to the contrary. There was insufficient activity by DNR to prove it was in any better possession of the land than plaintiffs. Defendant’s second point is denied.

Defendant’s third point claims error in the trial court’s failure to appoint partition commissioners to determine if partition in kind of the property was practicable rather than ordering a partition sale as the court did by its authority under Rule 96.11.

“The test of whether a partition in kind would result in great prejudice to the owners is whether the value of the share of each in case of a partition would be materially less than his share of the money equivalent that could probably be obtained for the whole.” Gebauer v. Gebauer, 165 S.W.2d 333, 335 (Mo.App.1942). The trial judge’s conclusions are entitled to great weight if there is substantial evidence to support them. Id.

In the present ease, the court found 14 individuals had an interest in the 38 acres, along with the interest of the DNR. The DNR interest was the largest, being one-half. The other half would be divided among the 14 parties.

It was within the discretion of the judge to find that the shares of the 14 heirs might be worth less taken in a partition in kind, than if the total tract were sold. In addition, there was a road through this land, complicating any possible partition in kind. Defendant’s third point is denied.

The judgment is affirmed.

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


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Paris YOUNG, Appellant.
    No. WD 35399.
    Missouri Court of Appeals, Western District.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Joseph H. Locascio, Sp. Public Defender, Mimi Droll, Asst. Sp. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   ORDER

PER CURIAM.

Appeal from conviction for sale of a schedule II controlled substance, § 195.-020.1, R.S.Mo., Supp.1983, and sentence of eighteen years imprisonment.

Judgment affirmed. Rule 30.25(b).


text:
    Craig R. KELSO, v. STATE of Missouri, Respondent.
    No. WD 35495.
    Missouri Court of Appeals, Western District.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Joseph H. Locascio, Sp. Public Defender, Edith L. Messina, Asst. Sp. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., John J. Oldenburg, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    Before PRITCHARD, P.J., and SHAN-GLER and BERREY, JJ.
   ORDER

PER CURIAM.

Appeal from denial of Rule 27.26 motion to vacate conviction for first degree arson, and sentence of fifteen years imprisonment. See 617 S.W.2d 591 (Mo.App.1981).

Judgment affirmed. Rule 84.16(b).


author: MANFORD, Judge.

text:
    BANK OF DREXEL, Respondent, v. KYSER, INC., Appellant.
    No. WD 35624.
    Missouri Court of Appeals, Western District.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.

      Harold A. Kyser, Butler, for appellant.
    James E. Thompson, Harrisonville, for respondent.
    Before TURNAGE, C.J., MANFORD, J., and MESSINA, Special J.
   MANFORD, Judge.

This is an appeal by a grain warehouseman from a judgment settling a dispute as to the superiority of lien claims upon monies derived from the sale of corn. The jury awarded respondent bank the sum of $11,962.83. The judgment is affirmed.

While formally three points are presented, they can be reduced upon the consolidation of the first two, since they allege a common error. In summary, appellant charges that the trial court erred (1) in directing a verdict for respondent bank except as to damages because the bank failed to prove it held a perfected security interest in that (a) there was no proof of the filing of a financial statement, and (b) it was error to have admitted an order of the federal bankruptcy court concluding that the bank had a perfected security interest because appellant was not a party to the bankruptcy proceedings, and (2) in directing a verdict against appellant’s counterclaim because appellant submitted sufficient evidence to establish a claim based upon the doctrine of prima facie tort.

The facts in this case are not only relatively simple, but for the most part they are not disputed by the parties.

In summary, the record reveals the following. Both parties are Missouri corporations in good standing. Appellant is the operator of a grain elevator and respondent is the Bank of Drexel. Dennis Lacy, a local farmer, became indebted to both appellant and respondent. Lacy and his wife had executed two promissory notes to the favor of respondent in the sums of $291,-000.00 and $294,500.00 respectively. Because of varied purchases over a period of time, Lacy owed appellant the sum of $4,100.00. In February, 1982, (the date is not established from the evidence), appellant contacted Lacy about the $4,100.00 debt. Lacy agreed to sell and deliver corn to appellant. Lacy testified that he told appellant that respondent claimed a security interest in the corn. Appellant acknowledged Lacy’s statement, but testified that Lacy also told it (appellant) that respondent’s lien had not been perfected and that he (Lacy) could sell the corn. Appellant’s representatives then went further and testified, “Dennis [Lacy] advised me, when he — before he unloaded the first load of corn, when we had our discussion, that this corn that the bank claimed a lien on, uh, or security interest in I guess is the word they used, that his lawyers — bankruptcy attorneys — that he was considering bankruptcy

Lacy agreed to and did deliver over 5,000 bushels of corn to appellant. Since there was a question of a lien by respondent bank, appellant refused to make payment exclusively to Lacy and Lacy agreed to await receipt of any payment until the question was answered.

For a short while (neither this time nor the date involved are disclosed upon the record), there were conversations between appellant and a representative of the bank. These conversations led to a proposed settlement between appellant and respondent whereby appellant would retain the $4,100.00 due it and the remainder of the $11,962.83 would be paid to respondent. The next day, the bank reneged on the deal.

This action followed. Lacy filed a bankruptcy action and was discharged. Respondent bank sought and received an order lifting the automatic stay of proceedings from the bankruptcy court. During trial and over appellant’s objection, the trial court admitted an order of the federal bankruptcy court which, by its content, declared a valid security interest and lien upon crops then in appellant’s possession to the favor of respondent bank. At the close of respondent’s case in chief, the trial court directed a verdict for respondent bank except as to damages. By way of a counterclaim, appellant sought damages against respondent bank alleging that under the prima facie tort doctrine, respondent bank had intentionally sought to hurt or destroy appellant’s business. Appellant, in the main, asserted that the present action provided proof of the prima facie tort. At the close of all the evidence, the trial court directed a verdict in favor of respondent bank upon appellant’s counterclaim. The jury returned a verdict in favor of the bank in the sum of $11,962.83. This appeal followed.

Turning to appellant’s point (1), sub (a) and (b), it can be first said that appellant’s assertion therein is absolutely correct. However, for reasons disclosed infra, the error by the trial court does not demand reversal.

In the first instance, it is noted that neither party on this appeal bothered to file with this court any trial exhibits. This court, on its own, had to direct their being filed. Without such documentation, this appeal could not have been determined. After the receipt of the applicable documents and the review of same, it is obvious that the respondent bank did not have a perfected security interest. The documents introduced at trial and now before this court failed to reveal the filing of record of any financing statement as required by the Uniform Commercial Code. Thus, appellant’s contention under point (l)(a) is correct.

Turning to point (l)(b), the trial court erred in admitting the “Order to Lift Automatic Stay” previously issued by the federal bankruptcy court. In the first instance, there is no evidence that appellant was a party to the federal bankruptcy proceeding. Respondent asserts that by reason of appellant’s answer raising the question of who was entitled to the proceeds, the admission of the federal order was correct. There was no privity of parties which authorized the admission of the federal order and it was error to admit it.

Upon the admission of the order, appellant concludes that absent the admission of that order (since respondent bank failed to offer proof of a properly recorded financial statement), respondent’s claim must fail. The conclusion asserted by appellant is not valid.

The evidence does reveal that respondent bank failed to prove it had a properly filed and recorded security interest. As noted also, the trial court erred in the admission of the federal court order. It is obvious from the record that the federal order was introduced solely to establish the claim of a security interest by the respondent bank. The record before this court fails to disclose how the federal bankruptcy court reached its conclusion directing that respondent bank had a “valid security interest”. The documents before this court do not support the federal ruling. Perhaps that court had more evidence, but if it had nothing more than that presented to this court, there was no evidence to support the finding by the federal court. In addition, since appellant was not a party to the federal proceedings, the federal court did not have the benefit of the evidence considered infra which is determinative of the issue.

Respondent’s failure to prove a properly filed and recorded security interest made its claim subservient to the claim of appellant upon initial consideration. This is prescribed by § 400.9-301, Uniform Commercial Code (1978). If there were no additional facts, the lien of respondent bank would be inferior to that of appellant.

However, the evidence reveals that prior to the purchase of the corn from Lacy, appellant had notice of the lien claimed by respondent bank. The record is replete with such notice. Thus, if appellant had become a lien creditor “without knowledge of the security interest” claimed by respondent bank, appellant’s claim would be superior to that of the bank. Section 400.9-301(l)(b). The key to the whole matter is whether from the evidence appellant became a lien holder “without knowledge.” It is evident from this record that appellant did not become such a lien holder within the meaning of § 400.9-301(l)(b). The evidence shows that appellant had “notice” and “knowledge” of the claimed lien by the bank within the definitions prescribed by § 400.1-201(25)(26), Uniform Commercial Code (1978).

Thus, while appellant's contentions under its point (1), sub (a) and (b) are correct, nonetheless appellant is not entitled to a reversal of this judgment because it was by appellant’s own evidence, that proof of respondent’s claim of a superior lien was established.

Under appellant’s point (2), it is charged that the trial court erred in directing a verdict for respondent upon appellant’s counterclaim because allegedly, appellant pleaded and proved a claim for damages under the prima facie tort doctrine.

It is the contention of appellant that respondent’s attempt to prevent Lacy from selling the corn to appellant, the agreement to settle the claims and the later refusal to settle, comments by bank representatives that the bank could do without an elevator, and the filing of this action support a claim under the doctrine of prima facie tort. Appellant alleges authority for its claim is prescribed by this court’s ruling in Porter v. Crawford, 611 S.W.2d 265 (Mo.App.1980). There is no evidence upon the record before this court that respondent bank, in pursuing its claimed lien interest, intended injury to appellant. Such intent to injure is a requisite element of a claim for damages under the prima facie tort doctrine. Lundberg v. Prudential Ins. Co., 661 S.W.2d 667 (Mo.App.1983).

Appellant’s point (2) is without merit and is ruled against appellant.

For and upon the foregoing reasons, the judgment herein is affirmed.

All concur.

      . This sum is the undisputed amount revised upon the resale of the Lacy corn.


author: CLEMENS, Senior Judge.

text:
    Teresa PEHAR, Appellant, v. Donna K. ROBBS, Respondent.
    No. 48628.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 22, 1985.
    A. David Arand, Union, for appellant.
    Samuel T. Vandover, St. Louis, for respondent.
   CLEMENS, Senior Judge.

Plaintiff Teresa Pehar as widow of pedestrian Sensei Pehar sued defendant motorist Donna Robbs for wrongfully causing the death. A jury found for defendant-driver and plaintiff-widow has appealed.

Following denial of her after trial motion plaintiff-widow appeals. She contends the court erroneously gave defendant’s contributory negligence instruction, M.A.I. 32.-01(3). Plaintiff contends this was error because the evidence failed to show the victim had failed to keep a careful lookout. We disagree.

Defendant driver was the only credible eye-witness. Her passenger-mother’s testimony was vague and contradictory but helpful to plaintiff.

We first relate the pertinent, uncontra-dicted testimony: Before the casualty decedent was going west on divided highway 1-44 in the proper dual lane. He stopped and parked off the north side of the highway so he could go to a ceramic shop by walking first across the highway and then across the parallel access road. As he did so, defendant was driving west on the 40-foot-wide access road. The level of this road is a few feet lower than the highway. Between the highway and the access road there was a short, five-foot-high wire mesh fence. Decedent had parked near the end of this fence but to reach a point where he could start across the access road to reach his destination he had to walk west about 40 feet behind the fence. As said, decedent was crossing the access road when struck by defendant’s car.

When called by the plaintiff the seventeen-year-old defendant testified she was driving her mother’s car westward on the service road at about 40 m.p.h. (She denied having ever said she was going 60 m.p.h.) She first saw decedent “as he stepped from behind the fence and he was right there.” She swerved to her left into the east bound lane and hit decedent. Plaintiff also introduced into evidence the deposition it had taken from defendant. Therein she generally testified to leading questions that when she first saw decedent he was two or three feet away heading straight across the service road; she turned to her left across the center line before striking decedent and she came to a stop partly off the service road; the car’s windshield and front fender were damaged on its right side.

Pauline Jenson, operator of the mentioned ceramic shop, testified for plaintiff that defendant came to her home to report the collision; defendant was excited and said she had been driving at 60 m.p.h.; said her short height made it difficult for her to see; that when she saw decedent she started to pull left but “he kept on coming.”

The other defense witness was Trooper Floyd Wright a 15-year-veteran in highway accident investigation. He came to the scene within minutes of the accident. There he found decedent lying on the right-hand side of the service road, and defendant’s car halted partly off the left-hand side about'20 feet west of the west end of the chain link fence. The fence is 5 feet from the north side of the service road. That is significant here because a driver going west on the service road, as defendant was, “can’t see anything on the other side” of the fence.

By this unrefuted testimony decedent became visible to defendant for only 4 or 5 seconds as he walked the five feet from the end of the fence down to the edge of the service road. Decedent came into obvious peril only as he continued to walk another ten feet to the middle of the west-bound lane of the service road. Thus decedent’s position of peril became visible to defendant for only 2 or 3 seconds; within that time she had begun turning to her left to avoid striking decedent.

As said, the jury found for the defendant. In denying plaintiff’s motion for a new trial the trial court explained that the evidence supported the finding the decedent had not kept a careful lookout, that his view had been unobstructed, and that he had gone from a place of safety into a place of danger; that the evidence warranted giving of the challenged contributory negligence instruction.

We deny plaintiff’s point that the court erred in giving defendant’s instruction submitting decedent’s failure to keep a careful lookout. The propriety thereof is to be determined by defendant’s, not plaintiff’s evidence. Wissman v. Wissman, 575 S.W.2d 239[1] (Mo.App.1978); Carter v. Boys’ Club of Greater Kansas City, 552 S.W.2d 327[12] (Mo.App.1977). See also Young v. Grotsky, 459 S.W.2d 306[5] (Mo. 1970). Defendant’s unrefuted evidence supported the instruction.

Affirmed.

CRIST, P.J., and CRANDALL, J., concur.


text:
    Forrest L. MORRISON and Patty Morrison, Appellants, v. Robert Eugene COLSTER, Respondent.
    No. WD 35075.
    Missouri Court of Appeals, Western District.
    Jan. 22, 1985.
    Stephen William Angle, Warrensburg, for appellants.

      Charles Edward Weedman, Jr., Crouch, Crouch, Spangler & Douglas, Harrisonville, for respondent.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   ORDER

PER CURIAM.

Appeal from judgment in favor of defendant and against plaintiffs on the latter parties’ claims for personal injuries and loss of consortium arising out of an automobile collision.

Affirmed. Rule 84.16(b).


author: CLARK, Presiding Judge.

text:
    PORTER’S READY-BUILT, INC., Respondent, v. Larry PLUMMER, Appellant.
    No. WD 35582.
    Missouri Court of Appeals, Western District.
    Jan. 22, 1985.
    F. Russell Millin, Kansas City, for appellant.
    M. Sperry Hickman, Independence, for respondent.
    Before CLARK, P.J., and SOMERVILLE and KENNEDY, JJ.
   CLARK, Presiding Judge.

Respondent Porter’s Ready-Built, Inc. sued appellant Larry Plummer on an unpaid account. Trial of the case to the court resulted in judgment for Porter in the amount of $3850.00 and Plummer appeals. The appeal is dismissed.

The sole issue in the case was whether Plummer was liable as an individual for the cost of installing a wrecker unit on a truck, a service provided by Porter at Plummer’s request. Neither the work nor the charge presented any issue. Plummer’s defense was that he had contracted the work on behalf of a Colorado corporation, Estes Park Ford, in which he and his then wife were the shareholders.

Respondent has moved to dismiss the appeal for failure by Plummer to comply with Rule 84.04(c) in the statement of facts set out in his brief, and a failure of the statement of points to comply with Rule 84.04(d). We note that this court entered its order September 25, 1984 advising Plummer that his brief would be stricken for failure to comply with Rule 84.04(d). An amended brief was filed October 11, 1984, but the additions did not remedy the lack of particularization in the claims of error. Respondent’s brief filed November 7, 1984 incorporated the motion to dismiss and suggestions in support. Apart from a motion to strike respondent’s motion, appellant has not responded with opposing suggestions.

Liberality has routinely been extended to appellants in the matter of statements of points on appeal and, consistent with that practice, appellant’s cause would probably survive a motion to dismiss if only the statement of points was deficient. Here, however, the violation of Rule 84.04(c) in the statement of facts contained in appellant’s brief is so flagrant as to warrant and require the sanction of dismissal of the appeal.

Rule 84.04(c) requires of the appellant that he set out in his brief a fair and concise statement of the facts without argument. The purpose of the rule is primarily to afford an immediate, accurate, complete and unbiased understanding of the facts of the case. Wipfler v. Basler, 250 S.W.2d 982, 984 (Mo.1952). Failure of the appellant to comply substantially with the rules warrants dismissal of the appeal. Commerce Bank of Kansas City v. Conrad, 560 S.W.2d 388 (Mo.App.1977); appeal dismissed 436 U.S. 901, 98 S.Ct. 2228, 56 L.Ed.2d 399, reh’g denied, 437 U.S. 912, 98 S.Ct. 3106, 57 L.Ed.2d 1143 (1978).

An accurate and unbiased statement of the facts is a particularly significant component of the appellant’s brief in this case because the only point arguably to be presented on the appeal is whether the judgment is supported by substantial evidence and is not against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Because the judgment below was for Porter after a bench trial, the facts to be accepted as true on appeal are those drawn from evidence favorable to Porter, with attending favorable inferences, and contradictory testimony is to be disregarded. Mills v. Cameron Mutual Insurance Co., 674 S.W.2d 244, 247 (Mo.App.1984).

The statement of “facts” set out by Plummer in his brief blatantly ignores all of the above requirements and, instead, conveys a false, distorted and imperfect impression of the evidence in the case. The statement entirely ignores Porter’s evidence which included, among other testimony, an unqualified disclaimer of any knowledge about Plummer’s Colorado corporation. The statement of facts is neither fair nor complete because it recites only evidence favorable to Plummer and omits all other facts pertinent to the case.

In a pernicious manner, the statement of facts also offends because it is inaccurate and misleading. The statement conveys the impression that the creditor corporation, Porter’s Ready-Built, had significant exposure to a public holding-out by Plum-mer of his corporate business entity through the medium of a large outdoor advertising sign at his place of business, by use of the corporate name on shop tickets and checks and by a window sticker on the Ford truck which was involved in the wrecker installation. In fact the trial transcript shows no evidence that any representative of Porter’s was ever in Estes Park, Colorado where the advertising sign could be viewed, there was no proof business forms of Estes Park Ford, Inc. ever came to Porter’s and no proof at all that the truck in question had any window sticker, much less one bearing the name Estes Park Ford, Inc. In a biased and inaccurate presentation, appellant’s statement represents the facts it recites to have been admitted or uncontested when they were neither.

A reading of Plummer’s fact statement creates an initial impression that the judgment of the trial court was not supported by the evidence and was against the weight of the evidence. That impression, is however, erroneous and is solely the product of an unfair and inaccurate presentation of the facts. Neither the court nor opposing parties are obliged to labor under such a handicap in dealing with an appeal. The only appropriate remedy in an egregious case of this nature is dismissal of the appeal.

Respondent has also moved for assessment of damages for a frivolous appeal. In this case, we do not reach the issue and conclude our review with the dismissal order. The motion for damages is denied.

The appeal is dismissed.

All concur.

      . An ancillary benefit is a realistic appraisal by appellant of the facts viewed impartially. The required summary of the evidence in this case would or should have alerted appellant to the lack of merit in his claim that the judgment by the trial court was not supported by the evidence.


author: PRITCHARD, Presiding Judge.

text:
    J. Raymond BRUMMET, Respondent, v. Bryan M. POPE, Appellant.
    No. WD 35712.
    Missouri Court of Appeals, Western District.
    Jan. 22, 1985.
    C. Christy Barton, Jefferson City, for appellant; Barton & Waltz, Jefferson City, of counsel.
    James W. Gallaher and Pamela S. Quigg, Jefferson City, for respondent; Bushmann, Neff, Gallaher & Brown, Jefferson City, of counsel.
    Before PRITCHARD, P.J., and SHAN-GLER and BERREY, JJ.
   PRITCHARD, Presiding Judge.

Plaintiff brought suit upon an alleged oral contract for a real estate commission for procuring a buyer who was alleged to be ready, willing and able to purchase a building and land located at 225 Madison Street, Jefferson City, Missouri, owned by defendant (and his spouse). The trial court sustained plaintiff’s motion for summary judgment and entered the judgment for the commission claimed in the amount of $8,640.00. The issue is whether the pleadings and affidavits show that there is no genuine issue as to any material fact and whether plaintiff is entitled to judgment as a matter of law under Rule 74.04.

Defendant admitted that plaintiff is a licensed real estate agent, and that defendant (alone as seller) executed a real estate sales contract with Hsin Hui Lu. That contract recites the agreement to sell and purchase the property between defendant and Lu for $144,000, “payable as follows: (a) On execution of agreement $5,000.00 receipt of which is acknowledged by Seller, Deposited with Brummet Realty, agent for seller and procuring cause of sale, (b) Balance as outlined below * *

By his first and second amended answers, defendant pleaded, 10.(c): “defendant expressly agreed, acknowledged and stated (as did the potential buyer, Hsin Hui Lu) in order to obtain defendant’s signature on a document, that there would be no agreement for sale and no acceptance of Hsin Hui Lu as a purchaser unless defendant’s wife agreed to such proposed sale and co-executed a written sale contract, which agreement and co-execution were never obtained from defendant’s wife.” Following this allegation is Defendant’s Affidavit in Opposition to Plaintiff’s Motion for Summary Judgment: “5. Even if your defendant signed the purported contract form, no contract or agreement was ever formed or ever came into existence because the initial existence and formation of any contract or agreement for the sale of said real estate was expressly conditioned upon obtaining the written agreement of your defendant’s spouse and co-owner of the property as a tenant by the entirety with your defendant, which latter agreement was never obtained.” Plaintiff’s affidavit did not set up any facts establishing the non-exstence of facts supporting defendant’s pleading and affidavit. See Scott v. Thornton, 484 S.W.2d 312, 314-315 (Mo.1972); Pitman Mfg. Co. v. Centropolis Transfer Co., 461 S.W.2d 866, 873 (Mo.1970); and Mound Rose Cornice & Sheet Metal Works, Inc., v. H. Kalicak Construction Company, 454 S.W.2d 603, 607[8] (Mo.App.1970).

Defendant’s allegation and affidavit stated facts going to the very existence and formation of the purported contract, which would probably have to be established by oral evidence, as to whether defendant’s wife must have agreed to the proposed sale and must have co-executed the agreement for sale with Lu. In Farmers Insurance Exchange v. Farm Bureau Mutual Insurance Company, 522 S.W.2d 779, 783 (Mo. banc 1975), “Oral evidence of an agreement as to when and if a written instrument is to become effective is admissible under a well established exception to the parol evidence rule.” Quoting 30 Am.Jur.2d Evidence § 1038, “ ‘It is now the general rule that parol evidence is admissible to show conditions precedent which relate to the delivery or the taking effect of a written instrument. Such evidence does not constitute an oral contradiction, or variation of the written instrument, but goes to the very existence of the contract and tends to show that no valid and effective contract ever existed, at least not until the fulfilment of the condition.’ ” See further 32A C.J.S. Evidence, § 935, there quoted, and the Missouri cases there cited; and also City-Wide Asphalt Co., Inc. ex rel. City of Kansas City v. E.E. Scott Construction Co., Inc., 610 S.W.2d 330, 336[5] (Mo.App.1980); and Norris Fridley Real Estate, Inc. v. Fredrick, 623 S.W.2d 60, 61[1, 2] (Mo.App.1981).

A genuine issue of fact was in the case as to the existence and necessity of defendant’s wife’s consent and co-execution of the contract, and the trial court therefore erred in granting plaintiff a summary judgment. Other defenses asserted may be adjudged upon trial upon the evidence presented and the applicable law, including the amount of plaintiff’s commission should he then prevail.

The judgment is reversed and the case is remanded for further proceedings.

All concur.


author: KENNEDY, Presiding Judge.

text:
    Charles H. BRADY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 35769.
    Missouri Court of Appeals, Western District.
    Jan. 22, 1985.

      Holly G. Simons, Columbia, for appellant.
    John Ashcroft, Atty. Gen., and Thomas Carter, II, Jefferson City, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   KENNEDY, Presiding Judge.

Brady appeals from denial of his Rule 27.26 motion to vacate his conviction for stealing, Section 570.030, RSMo 1978. The trial court found Brady to be a persistent offender and sentenced him to seven years’ imprisonment pursuant to Section 558.021, RSMo 1978. His conviction and sentence were affirmed on direct appeal. State v. Brady, 624 S.W.2d 187 (Mo.App.1981).

We reverse the trial court judgment and remand for resentencing in accordance with this opinion.

Appellant was tried in 1980 for burglary and stealing. He was álso charged in the information with being a persistent offender, under Section 558.016. The jury acquitted him on the burglary charge, but found him guilty of stealing. The trial court made a docket entry on August 28, 1980, showing that appellant had been found to be a persistent offender, and ordering a presentence investigation. The docket entry does not make specific findings, as required by Section 558.021, listing the convictions that were the basis for finding that he was a persistent offender.

Appellant filed a motion to vacate his conviction under Rule 27.26, alleging that various constitutional violations occurred at his trial. An evidentiary hearing was held on appellant’s motion, at which he presented two additional grounds. He argued that the amended information charging him with being a persistent offender was defective because it failed to allege that he had been imprisoned for the previous convictions, and that the trial court had not followed the procedures set forth in Section 558.021 for imposing the extended term. Appellant testified that he had never been afforded a sentencing hearing to establish the basis for an extended term, at which he could cross-examine witnesses or present evidence.

The Rule 27.26 court entered findings of facts and conclusions of law denying appellant’s motion for post-conviction relief. It denied his request to amend, correct, or vacate his sentence because the trial court failed to follow the Section 558.021 procedures for imposing an extended term, stating that the transcripts from the trial and the hearing on August 28, 1980, were not before it for review. The Rule 27.26 court concluded that the basis for the trial judge’s finding that appellant was a persistent offender was appellant’s trial testimony.

As his only point on appeal, appellant argues that the Rule 27.26 court erred by denying his motion to vacate because the trial court did not follow the procedures set forth in Section 558.021 for imposing an extended term of imprisonment, and particularly because; it entered no specific findings of facts showing the basis for the extended sentence. Appellant further claims that the record suggests that he was not afforded a sentencing hearing, as required by the statute. He argues that his conviction should be reversed and the case remanded to require the trial court to hold a sentencing hearing at which a sufficient basis to support the enhanced sentence can be established and at which he can be afforded an opportunity to cross-examine witnesses and present evidence in his own behalf.

We are convinced that there was no hearing and no specific findings of previous felony convictions as required by Section 558.021, upon which the court could predicate a finding that the appellant was a persistent offender and subject to an enhanced sentence. The trial court’s finding to the contrary is “clearly erroneous” and requires reversal. Rule 27.26(j).

The only evidence we have as to whether the trial judge had a hearing upon which he found appellant to be a persistent offender is the following:

First, there is the judge’s docket entry for August 28, 1980, which reads as follows:

Defendant’s motion for new trial taken up, argument heard, motion denied. Court finds defendant is a persistent offender as alleged in the information. Court orders pre-sentence investigation by the State Board of P.N.P. Defendant remanded to jail.

Second, we have the oral testimony of the appellant at the Rule 27.26 hearing that no hearing was held to determine whether he had been convicted of two previous felonies as required by Section 558.021, supra.

The attorney general takes the position that in the absence of a transcript it may be presumed that the action of the circuit court was regular and legal, and that in the absence of a transcript the defendant cannot prove that he was not accorded a persistent offender hearing. He cites Huffman v. State, 451 S.W.2d 21, 23 (Mo.1970). In Huffman, though, there was no issue whether a trial had been held. In that case, a trial had been held, and the question was what had occurred thereat. The court held that it was the 27.26 movant’s burden to prove his grounds for relief. He was not excused from that burden by the absence of the transcript. That case does not support the state’s position.

It appears to us that the failure of the trial judge’s minutes to show the holding of a hearing strongly indicates that none was held, a conclusion which is strengthened by the absence of a transcript of any hearing. (We have examined the transcript in the original appeal, and find no record of proceedings after the return of the verdict.)

The absence of a hearing and of specific findings by the court as required by Section 558.021, supra, requires that the appellant’s sentence be vacated and that the case be remanded to the trial court for resentencing. The judgment of conviction is of course untouched.

Judgment reversed, and cause remanded for further proceedings in accordance with this opinion.

All concur.

      . The statute has been amended. L.1981, p. 636-7, Section 1. All subsequent references are to the statute in effect at the time of appellant’s sentencing, Section 558, RSMo 1978.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Eric Jeffrey CROW, Appellant.
    No. WD 35771.
    Missouri Court of Appeals, Western District.
    Jan. 22, 1985.
    Leman E. Atherton, Public Defender, Milan, for appellant.
    Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before TURNAGE, C.J., and MANFORD and KENNEDY, JJ.
   ORDER

PER CURIAM:

This is a direct appeal from a jury conviction for forcible rape, in violation of § 566.-030.1, RSMo (Supp.1983).

Affirmed. Rule 30.25(b).


author: LOWENSTEIN, Presiding Judge.

text:
    Kimberly Ann HARRIS, Petitioner, v. Randy Lee HARRIS, Respondent, v. Virginia Lee BRUCKSHAW and James Benjamin Bruckshaw, Intervenors-Appellants.
    No. 35842.
    Missouri Court of Appeals, Western District.
    Jan. 22, 1985.

      Louis F. Cottey, Oswald & Cottey, P.C., Kirksville, for intervenors-appellants.
    Keith W. Hicklin, Hicklin & Dial, Memphis, for respondent.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   LOWENSTEIN, Presiding Judge.

This appeal concerns the custody of Michael Harris, now age four. The appellants are the maternal grandparents, the respondent is Mike’s father. Shortly after Mike was born, on June 16, 1980, his natural mother, Kim Harris, gave him to her mother, Virginia Bruckshaw, and her stepfather, Jim Bruckshaw, to raise. The maternal grandparents had Mike for almost one year, and then Kim filed for divorce from the father, Randy Harris. The father was granted legal custody. He took Mike with him to his parents’ house in Iowa. Kim was granted liberal visitation, including one night per week, alternate weekends, and alternate major holidays. While the Bruckshaws’ visitation rights were not spelled out in the decree of dissolution, the court verbally ordered that their rights were co-extensive with those of the mother’s. Though Kim had since entered the Navy and is stationed out of state, the grandparents exercised visitation rights, albeit with some complications.

Some eight months later Randy began dating his present wife, Shirley. On two occasions, one before and one after Randy and Shirley’s marriage in August, 1982, Shirley admits to having spanked Mike severely causing bruises clearly amounting to child abuse. On September 1, 1982, the day after the second beating, Randy voluntarily took Mike back to the Bruckshaws, with the understanding that the grandparents would grant him visitation. Shirley sought counseling and some months later the father wanted Mike back, but the grandparents refused to return him to Randy.

On April 29, 1983 Randy filed an amended motion to modify the decree of dissolution. The ruling on the motion gave rise to this appeal. His purpose was two-fold: first, to force the grandparents to surrender Mike to him; second, to limit the mother’s and grandparents’ visitation rights. Since Randy already had legal, though not actual custody of Mike, it seems as if it would have been appropriate to file for a writ of habeas corpus. But apparently Randy went this route instead because as far back as September 30,1981 (only a few months after the original decree) he had filed a motion to modify to limit the mother’s rights since she had joined the Navy. The Bruckshaws never had been made party to any action involving the child. So to protect their visitation rights, and, more importantly, to obtain legal custody of Mike, the Bruckshaws here intervened.

After the August 25,1983 trial, the court entered an order which continued legal custody of Mike with his father, but which changed the Bruckshaws’ visitation rights to one week a month until Mike reaches school age, and then one weekend each month, plus four alternative holidays each year. The Bruckshaws appealed.

The Bruckshaws’ first and second points concern the legal standard for vesting custody in third persons, i.e., grandparents. Both parties agree the controlling statement of the law is found in In Interest of K.K.M., 647 S.W.2d 886, 890 (Mo.App.1983) where the eastern district said that extraordinary circumstances may mandate that custody be vested in third persons, regardless of the natural parent’s fitness. Cf. Walls v. Murray, No. 47546, Slip Opinion (E.D.Mo. December 4, 1984). The Bruckshaws claim the trial court only looked to Randy’s fitness and based custody on that one factor, rather than considering the stepmother’s unfitness as amounting to an extraordinary circumstance.

While the trial court’s order does not specifically make a finding of fact as to the stepmother’s fitness, it is clear from the record that there was extensive testimony on both sides about the two incidents of abuse. The trial court was aware of the legal standard for it cites the K.K.M. case in its conclusions of law. The trial court noted that while Shirley’s statements are “no guarantee of future behavior, it appears ... that she had made a conscious effort to restrain her emotions.”

The trial court went on to say it was “not unmindful of the concern of the apprehensions of the grandparents as to possible future abuse by the stepmother.” To that end the court ordered the father to enroll Mike in a licensed day care center. A psychiatrist gave his opinion the child would not be at risk by living with his father and Shirley while under some supervision and with counseling. There is substantial evidence to support the trial court’s decision which was made in accordance to law.

The Bruckshaws’ third point concerns the trial court’s order to limit their visitation rights. They argue that § 452.-400 RSMo entitles them to reasonable visitation rights unless and until that visitation would endanger the child’s physical health or impair his emotional development. Under this statute, paragraph one provides that a non-custodial parent has a right to visitation, grandparents do not. The court is given more discretion in establishing the parameters of grandparental visitation. In pertinent part the statute in the third paragraph says a court may grant reasonable visitation to the grandparents who have the right to intervene, solely for such rights in the dissolution action, or they may move to modify an original decree to seek these rights when they have been denied. In the present case the natural mother may have a legitimate complaint as to the court’s limitation on visitation, but this court need not address that point for the mother does not appeal the decree; the Bruckshaws do not have standing to complain on their daughter’s behalf. Their interest in the child and their efforts for Mike are not diminished by the result in this case.

As to the grandparents’ visitation, the trial court did not abuse its discretion in re-arranging the time from every other weekend and one night a week to one full week per month. The evidence was since the father now lives many miles away from the Bruckshaws’, compliance with the order to be modified would cause an inordinate amount of time to be spent transporting Mike to and from the grandparents. The Bruckshaws are actually getting more hours per month this way, at least until Mike reaches school age, and the burden of driving seven hours round trip is greatly reduced. In its decision, the trial court had in mind the best interests of the child. The trial court’s handling of a very difficult case is to be commended. Likewise, the court is appreciative of a case well briefed and argued by both counsel.

The Bruckshaws’ last point is that the trial court abused its discretion in taxing the costs of the action against them. The general rule is that the prevailing party in a civil action, or proceeding of any kind, is entitled to recover costs against the other party. Section 514.060 RSMo (1978). It has long been held that a motion to modify is legally regarded as a continuance of the original action for divorce and the taxing of costs is governed by the same principle. Smithart v. Sportsman, 614 S.W.2d 320, 322 (Mo.App.1981); Herhalser v. Herhalser, 401 S.W.2d 187, 193 (Mo.App.1966); Crooks v. Crooks, 197 S.W.2d 678, 685 (Mo.App.1946). Furthermore, in a divorce proceeding, the character of which is one triable by equitable principles, the trial court is vested with a sound discretion to award costs, but this must be exercised in light of the facts of each particular case. Crooks, supra.

In the present case the Bruckshaws clearly lost on the issue of custody, but on the issue of visitation even the respondent, Randy, agrees in his brief the modification entered need not be deemed a restriction of visitation. Since this court does not believe the Bruckshaws “lost” on this issue, the trial court is therefore held to have abused its discretion in taxing all the costs against them. Under these circumstances, the costs should have been divided equally between the father and the grandparents.

Judgment is affirmed in all respects except as to the issue of costs, and is reversed on the taxing of costs and remanded to assess the costs equally. The costs of this appeal are to be against both parties equally.

All concur.


text:
    Opal CLARK, Appellant, v. Bill SWAN, Respondent.
    No. WD 36099.
    Missouri Court of Appeals, Western District.
    Jan. 22, 1985.
    Wilbur L. Pollard, Patrick Beeman, Norton, Pollard & Norton, Inc., Kansas City, for appellant.
    H. Kent Desselle, Desselle, White, Allin-der & Grate, Independence, for respondent.
    Before CLARK, P.J., and SOMERVILLE and KENNEDY, JJ.
   ORDER

PER CURIAM.

Appeal from trial court order overruling motion for new trial after jury verdict for respondent. Judgment affirmed. Rule 84.16(b).

All concur.


text:
    Royce E. GILREATH, Appellant, v. STATE of Missouri, Respondent.
    No. WD 35310.
    Missouri Court of Appeals, Western District.
    Jan. 22, 1985.
    David S. Durbin, Asst. Public Defender, Kansas City, for appellant.
    John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before CLARK, P.J., and SOMERVILLE and KENNEDY, JJ.
   ORDER

PER CURIAM.

Appeal from denial of motion to vacate judgment and sentence under Rule 27.26.

Affirmed. Rule 84.16(b).

All concur.


author: MAUS, Judge.

text:
    Jacqueline Kay WELBERN, Petitioner-Respondent, v. Larry Michael WELBERN, Respondent-Appellant.
    No. 13456.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 28, 1985.
    Kenneth W. Johnson, Johnson, Sweeney & Miller, Springfield, for petitioner-respondent.
    Lynn Myers, Springfield, for respondent-appellant.
   MAUS, Judge.

The parties to this dissolution action were married September 26, 1979. One child was born to the marriage on August 24, 1981. The judgment dissolving the marriage placed that child in the custody of the wife. It also distributed the property of the parties, awarded the wife maintenance in gross of $12,600 and child support of $350 per month. The husband appeals.

He first asserts error in that household items and an automobile, his separate property, were awarded to the wife or subjected to a lien. The judgment made neither provision. It gave the husband an option to elect to vest title to these items in the wife and be credited with $6,490 upon the award of maintenance. Without approving this procedure, the husband is not entitled to complain about an option that he was not required to exercise. Armstrong v. Armstrong, 654 S.W.2d 302 (Mo.App.1983).

He next contends there is no evidence to support the award of maintenance in gross. The trial court made the following pertinent findings. The wife incurred a debt for a car, the proceeds of which went into the husband’s business. The wife’s interest in a residence also reached that business. She contributed her inheritance to the expenses of the family. These findings were supported by the evidence. It was also established the dissolution left the wife in debt and without an automobile. These circumstances form a proper basis for the trial court to conclude the maintenance in gross was necessary to permit the wife to rehabilitate her financial circumstances. In re Marriage of Null, 608 S.W.2d 568 (Mo.App.1980).

The husband’s final point is that child support of $350 per month is not supported by the evidence. He suggests $200 per month. Contrary to his contention, there was substantial evidence the needs of the child exceeded $350 per month. His argument of poverty and inability to pay is based upon an amount he asserts is established by the evidence to be his disposable income. However, the evidence demonstrating this amount was not conclusive. His contract of employment provided for a bonus as well as a fixed salary. This and the husband’s erratic financial transactions, his method of accounting and records, and his evasive answers concerning his finances constitute substantial evidence from which the trial court obviously determined the husband was able to pay the amount awarded.

The trial court did not erroneously declare or apply the law. The judgment is supported by substantial evidence and is not against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). An extended opinion would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b).

HOGAN, P.J., PREWITT, C.J., and CROW, J., concur.