text:
    J. Wayne WILLEY, Plaintiff-Appellant, v. CASS COUNTY, Missouri, et al., Defendants-Respondents.
    No. WD 35692.
    Missouri Court of Appeals, Western District.
    Feb. 5, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Application to Transfer Denied May 29, 1985.

      Richard G. Carlisle, Freilich, Leitner & Carlisle, P.C., Kansas City, for plaintiff-appellant.
    Cathleen A. Shine, Cass County Pros. Atty., Harrisonville, Dale L. Beckerman, Deacy & Deacy, Kansas City, for respondents, Cass County, Missouri, Cass County Planning Commission and Robert Pretty-man, Chairman.
    John C. Milholland, Harrisonville, for respondent, Anderson.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   LOWENSTEIN, Presiding Judge.

This appeal deals with the denial of a special use permit for a sanitary landfill. Plaintiff/appellant, Willey, applied for this permit with the defendant/respondent, Cass County Missouri Planning Commission. The area for the proposed landfill is classified as agricultural allowing a sanitary landfill by special permit, but not by right. The site, which is near the towns of Raymore and Peculiar, Missouri, would have been used for trash hauled from Kansas City. After a public hearing, the Commission denied the permit, Willey sought judicial review pursuant to the provisions of the Missouri Administrative Procedure Act, Chapter 536 RSMo. The trial court affirmed the Commission’s decision.

On appeal Willey contends the error was on a question of law or the application of law to facts, and that there was no issue about the facts. Willey however, only asks for the general standard of review for administrative appeals under § 536.140.2 RSMo 1978. Under this law, review is ordinarily limited to whether or not the agency’s action was supported by competent and substantial evidence on the whole record or was arbitrary, capricious, unreasonable, unlawful or in excess of its jurisdiction. Cf. Evangelical Retirement Homes of Greater St. Louis, Inc. v. State Tax Commission, 669 S.W.2d 548, 552 (Mo. banc 1984).

Therefore, the following finding of facts made by the Commission, and affirmed by the trial court are not in contention. The proposed site for the landfill adjoined several tracts zoned for residential use. That residential property would be devalued out of proportion to any advantage shown from locating a landfill at that site. The landfill would increase truck traffic to the detriment of Cass County citizens, and impose an undue burden on those taxpayers without any increase in tax revenues. Finally, there was no satisfactory evidence of an adequate water supply or adequate fire protection for the proposed site.

The basic issue for this court’s consideration is whether a second class county can prohibit the operation of a sanitary landfill, not having adopted a “solid waste management plan.” Willey first argues that federal law established in the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901-6987 forces local governments to permit sanitary landfills unless they can show that the denial protects the general public from present and future nuisances, which would in essence place the burden of proof on the state and its subdivisions rather than on the applicant. Careful reading of the federal law finds no support on this proposition. Willey specifically cites 42 U.S.C. § 6944(a), which reads as follows:

Not later than one year after October 21, 1976, after consultation with the States, and after notice and public hearings, the Administrator shall promulgate regulations containing criteria for determining which facilities shall be classified as sanitary landfills and which shall be classified as open dumps within the meaning of this chapter. At a minimum, such criteria shall provide that a facility may be classified as a sanitary landfill and not an open dump only if there is no reasonable probability of adverse effects on health or the environment from disposal of solid waste at such facility. Such regulations may provide for the classification of the types of sanitary landfills.

While this section provides a minimum criteria for classification of sanitary landfills as opposed to open dumps, there is nothing regarding the locations for landfills. Furthermore, Willey incorrectly implies that Missouri passed its waste disposal legislation as a result of the 1976 federal act. To the contrary, Missouri first adopted § 260.200 et seq. RSMo in 1972, with amendments in 1975. There is nothing in the federal law which preempts or predates the Missouri statutes.

Willey next contends the trial court ignored the state regulatory scheme when it affirmed the Gass County Planning Commission. Willey points to § 260.215 RSMo as requiring every city and county to implement an approved plan for solid waste management, and because Cass County has not adopted such a plan, it was without authority to deny Willey his permit. However, this contention completely ignores subsection 4 of § 260.215 which says: “Nothing contained in sections 260.215 and 260.220 shall apply to any unincorporated area in all second, third or fourth class counties ...” As a second class county, the respondents were not required to implement a plan. Subsection 4 goes on to say that any exempt county may still adopt ordinances, rules, regulating or standards for the disposal of solid wastes as provided in 260.215.2.

Although Cass County did not have a “state plan”, it did have ordinances governing special use permits and sanitary landfills. Willey in his presentation to the Commission attempted to show his application would comply with those ordinances. However, the Commission in its findings found non-compliance with some of those ordinances. Willey has never contended those ordinances are not equal to or less stringent than the rules or regulations of the state. Section 260.215.2.

When Willey states this landfill is “badly needed”, and, “this case presents a tremendous opportunity to the courts in the State of Missouri precisely to define the authority of a second class county to regulate sanitary landfills ...”, he asks the judiciary to amend the statute to require Cass and similar counties to be in the state wide plan. Willey would also have those counties which fail to “opt-in” to the plan be governed by it anyway, resulting in their having no discretion to deny site permits for landfills where the department of natural resources has shown approval and where the applicant shows its facility will be run nuisance free. With no statutory authority nor supporting case authority, this court will not accede to Willey’s request.

Willey’s second point contends the Commission abused its discretion by putting “the cart before the horse ... by making a decision and then later making findings of fact and conclusions of law which will support that decision.” Stephen & Stephen Properties, Inc. v. State Tax Commission, 499 S.W.2d 798, 804 (Mo.1973). Immediately after the hearing on March 9, 1982, the Commission took a vote on the application. The chair announced the vote was unanimous to deny the permit. On April 8th, Willey filed in circuit court for review of the “oral vote”. On May 8, 1983 the Commission formally adopted a “decision” which included the findings of fact not here disputed. Willey asks this court to declare the “post-hoc efforts at justifying it March 9 decision a clear abuse of its discretion.” Section 536.-090 requires every decision in a contested case be in writing, and the decision, “shall include or be accompanied by findings of fact and conclusions of law.”

The timing and sequence of events will not per se amount to a showing of arbitrariness or abuse of discretion. In Stephen, supra, the agency did not make findings for some six months after the decision was made or announced. See Hughes v. Board of Education, Charleston, Etc., 599 S.W.2d 254 (Mo.App.1980), (where no findings and conclusions were ever filed). As stated in Stephen at 804-05, several reasons behind § 536.090 are the protection against careless action, and to help the parties plan their cases for judicial review. After argument, the trial court decided this matter on January 13, 1984. The court therefore had the benefit of the findings and conclusions of the Commission. Missouri United Methodist Retirement Homes v. State Tax Commission, 522 S.W.2d 745 (Mo.1975), is authority for this court’s refusal to reverse and remand. In Missouri United, the Commission hearing was on December 1; on December 29 the plaintiff filed in circuit court, and on February 13 of the following year sought to compel the issuance of findings and conclusions, which were filed March 14. After trial on November 14 the court affirmed the findings which were not attacked in circuit court. The supreme court said no material prejudice resulted from the failure to make timely findings and conclusions by stating:

Under these circumstances, although the Commission did not follow the clear mandate of the statute, no prejudice (other than delay) resulted to plaintiff. In preparing its amended petition for judicial review, it had the benefit of the Commission’s findings of fact and conclusions of law.
Also, it would be a useless and time consuming act for the Commission now to rewrite its “Decision” and attach to it a copy of the findings and conclusions previously made and file them with the Circuit Court of Lawrence County, and for the parties to again present their case to the circuit court.

522 S.W.2d at 748. Brown v. Alberda, 579 S.W.2d 718, 720 (Mo.App.1979).

Non-compliance with the mandate of § 536.090 is not jurisdictional. Jarrett v. Hill, 648 S.W.2d 170, 177 (Mo.App.1983). As in Jarrett, this court is not, however, inclined to ignore the Commission’s disregard of the statute’s requirements. Id. at 177. Although the belated findings and conclusions were within the spirit of the statute, Greater Garden Avenue v. City of Webster Groves, 655 S.W.2d 760, 767 (Mo.App.1983), agencies operating under this law should not use Cass County’s procedure as a guide to future decision making.

Willey’s third point is basically a rehash of his first point. He contends the Commission impermissibly based its denial solely on the complaints of surrounding property owners. However, the uncontested findings of fact show otherwise. Lack of adequate fire protection and water supply were among other factors considered. Furthermore, Willey again misstates the law concerning solid waste management plans. Second class counties are not required to adopt such a plan in order to deny an application for a special use permit. Willey’s third point is denied.

The judgment of the circuit court which affirmed the decision of the Cass County Planning Commission to deny the permit is affirmed.

All concur.


source: Caselaw Access Project

author: LOWENSTEIN, Presiding Judge.

license: Public Domain

text:
    MOBIL OIL CREDIT CORPORATION, Appellant, v. DST REALTY, INC. & Stephen D. Dunn, Respondents, DST REALTY, INC. & Stephen D. Dunn, Respondents-Cross Appellants, v. MOBIL OIL CREDIT CORPORATION, Appellant-Cross Respondent.
    No. WD 35756.
    Missouri Court of Appeals, Western District.
    Feb. 5, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Application to Transfer Denied May 29, 1985.

      John M. Kilroy, Jr., William E. Quirk, Shughart, Thomson & Kilroy, and Wayne E. Mullins, Mobil Oil Credit Corp., Kansas City, for appellant.
    Duane J. Pox, Paul G. Schepers, Burrell, Seigfreid & Bingham, P.C., Kansas City, for respondents.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   LOWENSTEIN, Presiding Judge.

The single issue in this court tried case is, where a commercial lease is silent, which party is to pay for newly discovered latent and substantial repairs, structural in nature, the landlord or the tenant? Inapplicable is the implied warranty of habitability as recognized in King v. Moorehead, 495 S.W.2d 65 (Mo.App.1973), as that rule is only applicable to residential property. Detling v. Edelbrock, 671 S.W.2d 265, 270 (Mo. banc 1984).

On August 1, 1980 Mobil Oil Credit Corporation (referred to as Mobil or the tenant) entered into a ten-year lease on an entire eight story office building, the lower three floors of which comprise a parking garage. The building is the Centennial Building located in downtown Kansas City. Mobil has used the premises as its national credit card center. In December, 1980 Mobil notified the then landlord and owner the concrete in the garage facility was cracking and spalling. Spalling basically occurs when the steel reinforcing bars over which the concrete is laid, become rusted by water and salt and expand, causing the concrete to pop or spall off the bars. Pursuant to an oral agreement, and so as to maintain a good landlord-tenant relationship, Mobil paid one-half of the $14,625.00 in repairs, although the landlord never claimed Mobil was responsible for the repairs under the terms of the lease.

In June, 1982 the landlord sold its interest and the lease was assigned to D.S.T. Realty, Inc., and Stephen D. Dunn (referred to as Downtown Investors or the landlord). Thereafter, Downtown Investors became aware that the garage was in extensive need of structural repair. Following demand letters in January and February, 1983, Mobil was forced under threat of forfeiture by Downtown Investors to contract to have the repairs performed. The project in question involved jackham-mering and replacing 35 to 45 percent of the concrete surface in the garage, and sandblasting away corrosion on existing steel reinforcing bars, plus adding some two tons of new reinforcing bars. The parties stipulated the total cost and expense to the tenant Mobil came to $438,-207.66.

Mobil sued Downtown Investors for the total amount, and the trial court decided that the lease was ambiguous, and so looked to the 1980 oral agreement between the original landlord and Mobil. Because the parties split the cost then, the trial court ordered Downtown Investors to pay half the current costs. Both parties appeal.

The lease is to expire in the year 1990, but has a renewal clause for another five years. Rent through 1985 is set at $350,-000 a year plus Mobil is to pay an amount equal to taxes and to repay to Downtown Investors the cost of casualty insurance. Paraphrased, the following specific sections of the 38-page lease are pertinent in deciding which side is to pay for part or all the costs:

Section 308 — Rent was intended to be on a net basis to the Lessor, “free from any taxes, assessments, expenses, or charges with respect to the Premise.”
Section 402 — Tenant shall be responsible for all costs of the building operation, building repair, painting, decoration and maintenance, except: (the two exceptions are that the Lessor will pay for roof renovation in excess of $60,000.00 and for exterior building repair in excess of $25,000.00).
Section 403 — Lessee agrees to take good care of the premises' and shall, at its expense, make all repairs to the premises and the equipment therein necessary to preserve them in good order and condition, ordinary wear and tear excepted.
Section 1105 — Modifications. This Lease Agreement may be modified only by written agreement signed by Lessor and Lessee.

The evidence supporting the trial court’s findings about the nature of the repairs was: the conditions causing the spalling started prior to Mobil’s taking the lease, the repairs demanded by the landlord and made by the tenant constituted, “structural reconstruction of the Centennial Garage” and were “substantial and extraordinary in nature,” which with the steel and new concrete added strength to the garage and restored “the integrity of the structure.” Neither party knew the extent of the damage when the lease was drawn, and it appears neither the previous owners nor Mobil anticipated the repairs needed when the patching of the cracks was done in December of 1980 (where the $14,000 cost was split).

The court concluded Sections 402 and 403 were silent as to who should pay for substantial structural repairs to the garage, constituting an ambiguity as to which side had the obligation, so under Latimer Motors, Ltd. v. McIntosh Motors, Inc., 512 S.W.2d 875, 880 (Mo.App.1974), the contract would be construed as understood and acted upon by the parties. The trial court concluded the 1980 repairs of $14,000 had been shared equally and since those were “substantial” repairs, the present costs of $438,207.66 should be so treated.

There was no substantial evidence to support the conclusion patchwork of 1980 constituted substantial or structural repairs. The enormity of the problem was not apparent in 1980, and this court will not conclude the payment of one half those costs by Mobil to a previous landlord, would obligate the tenant to pay one half, or any of the costs herein encountered. Also, the conclusion that an ambiguity exists cannot be sustained. This misapplication of the law calls for a reversal. “Language is ambiguous when it is susceptible of opposite meanings.” Latimer, supra, at 880. The issue of ambiguity is one of law, but, “[A] provision is ambiguous only when it is reasonably susceptible of different constructions and not by the fact that the parties do not agree on its construction. The court should not resort to construing an unambiguous provision.” Republic National Life v. Missouri State Bank, 661 S.W.2d 803, 808 (Mo.App.1983). An ambiguity cannot be created by silence. In Latimer there were two conflicting provisions dealing with destruction by fire. Here, there was no provision for structural repairs for the parking garage. The other portions of the lease defining a “net” lease, or the agreement by Mobil to pay for roof damage cannot be used to create a promise to make the present repairs. Bogan v. Postlewait, 130 Ill.App.2d 729, 265 N.E.2d 195, 197 (1970).

Latimer, supra, further points out the law which holds a tenant is not responsible for substantial or structural repairs unless he clearly covenants to do so. Id. at 881. The clause in Latimer, “to comply with all laws,” and the clause in Thomas W. Garland, Incorporated v. Rubin, 493 S.W.2d 74, 76 (Mo.App.1973), “to keep the premises in good order and repair,” do not create a duty for structural repairs to be made by the tenant. Garland, it should be noted, was decided on the basis the repairs were not of a structural nature, so the tenant there lost.

The landlord’s argument of this being a net lease, and that such a concept subsumes the tenant paying all the taxes, insurance and maintenance, and that maintenance includes everything from cleaning smudges to jackhammering the parking structure, is fallacious. This attempts to create a legal effect in the lease because of what it is called rather than what it does. Levitz Furniture Co. v. Continental Equities, 411 So.2d 221, 224 (Fla.App.1982). Unless there is some inherent duty in the tenant to make structural repairs, the provision in § 308 of this is a net lease will not be allowed to create such an obligation.

Basically a tenant cannot be held for substantial structural repairs unless it so specifically agrees in the lease. A general covenant of a tenant to make ordinary repairs does not require him to make structural repairs. Hardy v. Montgomery Ward & Co., 131 Ill.App.2d 1038, 267 N.E. 748, 751 (1971). In the Restatement (Second), Property (Landlord and Tenant) § 13.1, comment c. (1977) states:

A promise by the tenant to keep the leased property in repair, unless the language of the promise clearly provides otherwise, does not obligate the tenant to make repairs other than those that are the result of ordinary wear and tear on the leased property.

In order to shift the burden to the tenant of what would naturally fall on the landlord there should be something specific in the lease. Kaufman v. Shoe Corporation of America, 24 Ill.App.2d 431, 164 N.E.2d 617, 620 (1960). The Restatement, supra, in Section 5.6, comment d. holds:

Rule of construction applicable to agreement. An agreement, express or implied, which undertakes to decrease a landlord’s obligations in regard to the condition of the leased premises, will be construed strictly against the landlord. In other words, the extent of the decrease will be kept in as narrow a range as is consistent with the terms of the agreement entered into by the parties.

Illustration 1 to comment d. supra, provides:

The extent to which the promise shifts the responsibility for the condition of the premises to the tenant from what it otherwise would be is to be given a strict interpretation. If a more extensive shift is intended, it is the responsibility of the landlord to spell this out in the agreement between the parties.

Reed v. Classified Parking System, 232 So.2d 103, 107 (La.App.1970).

The trial court’s finding of the present repairs being structural and substantial would be enough to carry the day for the tenant. In addition the repairs were so unforeseen and so substantial it would be unreasonable to expect the tenant to make them when the benefit of having the structural integrity restored would be the landlords. Baxter v. Ill. Police Federation, 63 Ill.App.3d 819, 20 Ill.Dec. 623, 626, 380 N.E.2d 832, 835 (1978).

This being a 10-year lease with rent being $350,000 and then $400,000 after 1985, it would be unfair to make the tenant pay over $438,000, or even one half just to enjoy using the building until 1990. The Restatement, supra, in Section 5.5, comment f. states:

Implied promise by landlord to repair. Where it would not be reasonable in light of the term of the lease, the rent that is being paid, the purposes for which the leased property is used, and other circumstances, to expect the tenant to assume the cost of major repairs to the leased property that become necessary through no fault of the tenant, a conclusion is justified that the landlord impliedly promised to make those major repairs.

The situation here is analogous to Second United Cities Realty Corp. v. Price & Schumacher Co., 212 N.Y. 120, 151 N.E. 150 (N.Y.App.1926) where the court said at page 151-152:

Why should the tenant pay for this? The clause of its lease did not require the tenant to make structural changes or to pay for rebuilding. The rent of the store was only $600 for a term of three years. The cost of these repairs or reconstruction equals within a few dollars the amount of the three years’ rent. That such a liability was to be cast upon by the tenant by this lease could hardly have been within the contemplation of the parties.

Cohen v. Bass, 246 N.Y. 270, 158 N.E. 618, 620 (N.Y.App.1927). The following language in Scott v. Prazma, 555 P.2d 571 (Wyo.1976), is also here appropriate.

Such a position is obviously unfair because it would give plaintiff a better, fully reconstructed building than the lease, the life of which improvements would extend far beyond the defendant’s remaining term of less than eight years. It would become far superior to its condition at the date of the lease. By the express terms of the agreement, defendant’s obligation was only to keep it in its lease-date condition. It had taken over 30 years for the building to reach its present dilapidated state. Patching was no longer feasible for major items; reasonable wear and tear had taken its toll. The leasehold is worthless if the lessee cannot occupy the premises.
See, Restatement, supra, Section 12.2 comment e.

The misapplication of the law holding the tenant Mobil was responsible for one-half the repairs calls for reversal. The case reversed and remanded to enter judgment in the full amount for Mobil on its petition.

All concur.


author: CLEMENS, Senior Judge.

text:
    STATE of Missouri, Respondent, v. Anthony HARRIS, a/k/a Larry Harris, Appellant.
    No. 48484.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 5, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.
    Henry Robertson, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., T. Chad Far-ris, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Senior Judge.

A jury found defendant guilty of burglarizing the secured apartment garage. The trial court sentenced defendant as a second offender to 15 years in prison.

Defendant has appealed challenging sufficiency of the evidence to show he unlawfully entered the hundred-car garage. The state responds that the evidence circumstantially so showed; we agree and affirm.

The challenged but uncontradieted evidence: Entry to the locked basement garage could be gained only by the tenants’ cards placed in a slot thereby unlocking the garage door. When apartment manager Ms. Clavin entered the garage she saw defendant carrying a tool box and hurriedly trying to leave. No apartment employee had given defendant permission to enter. The manager called police who saw defendant outside carrying a green tool box, running away and then hiding. Tenant Robinson identified the tool box as his and testified it has been taken out of the forcibly opened trunk of his car.

Under Sections 569.010(8) and 569.170 RSMo. one commits second degree burglary by entering a building without permission for a criminal purpose.

With commendible frankness defendant cites cases holding we are to construe the evidence favorably to the state, that lack of victims’ consent may be shown circumstantially, and he admits defendant’s presence and behavior were suspicious.

Here the evidence failed to show defendant had authority to enter the garage but that he had stolen and taken property therefrom. See State v. Jennings, 649 S.W.2d 448[8, 9] (Mo.App.1983) holding:

“No direct evidence was presented to show that defendant actually unlawfully entered the Bell’s home with intent of removing the items. Nevertheless, an inference of guilt is permissible from the unexplained exclusive possession of property recently stolen in a burglary and this possession and inference are sufficient proof to submit both a burglary and stealing charge to the jury.”

To the same effect see State v. Chandler, 635 S.W.2d 338[4, 7] (Mo. banc 1982) and State v. Byrd, 646 S.W.2d 419[1] (Mo.App.1983).

We hold the trial court did not err in refusing to grant defendant’s motion for acquittal.

DOWD, P.J., and CRANDALL, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Aloysius B. FIELDS, Defendant-Appellant.
    No. 48728.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 5, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.

      Debra Buie Arnold, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Mark A. Richardson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   CLEMENS, Senior Judge.

Charged with feloniously tampering with another’s automobile (Section 569.080(2) RSMo.). Defendant Aloysius Fields was found guilty by a jury. The trial court found he was a previous felon and sentenced him to ten years in prison. He appeals; we affirm.

Defendant does not challenge the state’s evidence nor did he offer any. Instead, he only claims the trial court erred in denying his challenge for cause to venireman Ms. McCabe.

We summarize Ms. McCabe’s voir dire answers to hypothetical questions. In answering defense counsel’s questions she twice said on conflicting witnesses she would tend to believe a police officer and that she did not know if she could be totally objective. Interspersed with those statements Ms. McCabe explained she thought police were trained to be accurate in dealing with information; that weight to be given a policeman’s answers would depend on what the issue was; that she did at times disagree with what policemen said; that she did not believe a policeman is a better person than a defendant; that on a conflict she would keep an open mind and would follow the direction of the trial judge.

On then being questioned by the court Ms. McCabe said that in weighing conflicting testimony she could disregard a policeman’s prior training; that being acquainted with some policemen would make no difference to her; that she would be able to be a fair juror.

In denying defendant’s motion to strike the venireman the trial court found she had no preconceived notion of defendant’s guilt and that she could be an impartial juror.

We conclude defendant failed in his burden to show the trial court erred in denying the challenge for cause. The case of State v. Draper, 675 S.W.2d 863[1-4] (Mo. banc 1984) holds a trial court has a wide discretion in ruling on challenges for cause and will be rejected only on a clear showing of abuse of that discretion.

And, in State v. Smith, 649 S.W.2d 417 [2-7] (Mo. banc 1983) the court dealt with veniremen’s qualifications and held:

“Because the trial judge is in better positioned to make that determination than are we from the cold record, doubts as to the trial court’s findings will be resolved in its favor.”

In further explanation of the principle see State v. Gray, 657 S.W.2d 296[3] (Mo.App.1983).

We affirm.

DOWD, P.J., and CRANDALL, J., concur.


author: PRITCHARD, Presiding Judge.

text:
    COMMERCIAL DISTRIBUTION CENTER, INC., Appellant, v. ST. REGIS PAPER COMPANY, Crepaco, Inc., Ramey Construction Company, and Huxtable-Hammond Company, Inc., Respondents.
    No. WD 34450.
    Missouri Court of Appeals, Western District.
    Feb. 13, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Application to Transfer Denied May 29, 1985.

      Glenn E. McMann, Stephen D. Manz and Theresa S. Hall, Kansas City, for appellant; Knipmeyer, McMann, Fish & Smith, Kansas City, of counsel.
    Shugart, Thomson & Kilroy, Kansas City, for St. Regis Paper Co.
    Morris, Larson, King, Stamper & Bold, Kansas City, for Ramey Const. Co.
    Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for Huxtable-Ham-mond Co., Inc.
    Before PRITCHARD, P.J., and SHAN-GLER and BERREY, JJ.
   PRITCHARD, Presiding Judge.

Plaintiff is the owner of an underground refrigeration facility, which was equipped with brine lines suspended from the ceiling, which lines carried coolant in two of its storage rooms. On August 24, 1977, the support system of the brine lines in the two storage rooms collapsed, resulting in merchandise in storage being crushed and destroyed by the brine lines and the spilled brine. In January, 1982, plaintiff’s first amended petition was filed against all defendants alleging claims for damages in strict liability (defective design, materials or manufacture of the refrigeration system, brine lines and their component parts) and in negligence, against defendants St. Regis, Huxtable-Hammond and Ramey, based upon failure to design, manufacture, distribute, construct and install the refrigeration system, brine lines and component parts adequately to support them. Damages were prayed for in the amount of $338,973.00. At the close of plaintiff’s evidence, the trial court sustained defendants’ motions for directed verdict and entered judgment against plaintiff.

Defendant, Crepaco, Inc., was alleged to have acquired the Creamery Package Division of St. Regis, by which Crepaco agreed to assume any and all of St. Regis’ liabilities, excepting those covered by its insurance. No evidence was adduced as to what, if any, liability Crepaco assumed, and the directed verdict and judgment in its favor must therefore be affirmed.

The storage facility was originally a limestone mine owned by Overland Distribution Center which hired Ramey as general contractor to transform the mine into an underground cold storage facility in 1969. Ramey then subcontracted with the C.P. Division of St. Regis to design and install a refrigeration system in the facility. St. Regis then contracted with Huxtable-Ham-mond for the actual installation of the system.

The installed refrigerator system consisted of brine lines, supported by hundreds of hangers hung from the ceiling. The hangers were affixed to the ceiling by U-shaped clevises, or brackets, which were welded to the bottom part of a roof plate. At the bottom of the clevises was a hole through which the hanger rods passed, and the rods were attached to a bottom plate which supported the lines, a trapeze-like installation.

In 1974, the property was transferred to the Aetna Life and Casualty Insurance companies, and was later purchased that same year by plaintiff. On August 24, 1977, the support system for the brine lines failed. The U-shaped clevises broke at their corners or curves leaving the “legs” of the clevises still welded to the ceiling plate, but allowing the rods extending downward to another plate which supported the brine pipes, to fall downward, thus causing the pipes to fall to the floor.

An essential element of the plaintiffs case is the identification of any named defendant as the designer, manufacturer or supplier of the alleged defective product, here the U-shaped clevises which broke.

Defendant Ramey was the general contractor on the job to convert the mine into an underground storage facility for the original owner, Overland Distribution Center. It is nowhere to be found in the documents filed with this court that Ramey ever undertook to design, manufacture or supply any of the clevises which were installed on the system. Rather, as indicated in its letter to St. Regis of December 18, 1969, Ramey specified that it was to provide concrete bases for St. Regis’ equipment and to set anchor bolts, as well as to furnish and install all roof bolts for any support of equipment or piping furnished by St. Regis. St. Regis was required to furnish labor, materials and equipment to comply with design criteria and area shown on plans prepared by Calvin Shoup, an engineer employed by Overland. Shoup’s document, if in evidence is not deposited with this court. Ramey’s December 18, 1969 letter recited that it was to be the contract for St. Regis to proceed with the acquisition, design and installation of the system as outlined in the latter’s letters of October 7, 1969 and December 2, 1969. The December 2 letter noted that St. Regis would have the right to modify the design and specifications on equipment to reach the maximum contract price. The October 7 letter is more significant. St. Regis therein made its quotation for various items of refrigeration equipment, and Item # 4 specified, “1 — Lot of Brine, Water, and Ammonia Pipe, Fittings, Hangers, mise. Hanging Rod and Rigging material to install equipment in three — 5 deg. F. rooms, humidity control room, engine room, and air conditioning area, comprising the initial 800,000 sq. ft. project.” In another letter from Ramey to St. Regis dated March 2, 1970, Ramey requested that the St. Regis mechanical contractor coordinate with Ra-mey concerning the installation of clevises for hanging piping, refrigeration units, etc., as soon as possible inasmuch as Ra-mey was installing the roof bolts at the perimeter of the freezer room.

Under the foregoing evidence, Ra-mey had but a small part of the installation of the refrigeration system. Its duty, one principally for services, was to carry out the plans, specifications and directions given it by the owner, Overland, who apparently had them prepared by its engineer, Calvin Shoup. There is a lack of positive evidence that Ramey had anything to do with the design, manufacture or installation of the alleged defective clevises. See Prosser and Keeton on The Law of Torts, § 104A, p. 723-724 (1984). There appears, under the evidence, no basis to hold Ramey liable under strict liability in tort [cf. Chubb Group of Insurance Companies v. C.F. Murphy & Associates, Inc., 656 S.W.2d 766, 780[20] (Mo.App.1983)], or in negligence (because of no duty owed), and the trial court did not err in directing a verdict in its favor.

The situation is different, however, with St. Regis. The evidence is clear that by Ramey’s subcontract, in pertinent parts set forth above, with it, St. Regis did undertake the obligation to design, supply and install the clevis. Plaintiff’s Exhibit 7, St. Regis’s drawing, shows the design of the clevis as described above, although that drawing does note that clevises are “To be furnished by others”. St. Regis had a further drawing dated 1-19-70, Plaintiff’s Exhibit 8, which recites that the mechanical subcontractor was “To furnish & install all ammonia, brine, steam, gas, & water pipe, fittings, unions, hanger supports, expansion joints, * * Under the evidence, St. Regis delegated this duty, along with others, to its mechanical subcontractor, Huxta-ble-Hammond: “When a duty is delegated, however, the delegating party continues to remain liable. If this were not so, every solvent person could obtain freedom from his debts by delegating them to an insolvent. Delegation involves the appointment by the obligor of another to render performance on his behalf. It does not free the obligor from his duty to see to it that performance is rendered.” Calamari and Perillo, The Law of Contracts, 2d Ed. (1977) § 18-24, p. 662.

The subcontract between St. Regis and Huxtable-Hammond does not specifically state that the latter was to undertake the design, manufacture and installation of the clevises. It does, however, reference Plaintiffs Exhibit 7, which shows a drawing of the clevis to be supplied by others, and Huxtable-Hammond was to furnish and install the hangers and supports, as shown by Plaintiff’s Exhibit 8. The evidence as to source, i.e. who manufactured the clevises, is nonexistent. Huxtable-Hammond’s superintendent of mechanical construction, Silas Farmer, testified that he had no idea where the U-shaped brackets came from, but he would say they came through Huxtable-Hammond’s shop, although they were not something which could have been fabricated in its shop as opposed to being bought from another supplier. The clevises showed up on the job, where he decided which roof bolts and washers that the clevises would be attached to, and he decided the number of clevises which would be put up. A1 Petzold, Huxtable-Hammond’s project manager, testified that it was to set the equipment on someone else’s foundation, install and test the piping, hang the units and help fill the brine system. The materials which it supplied were the pipe, valves, fittings and secondary hangers which would be the clevises. The primary hangers were the roof bolts, furnished by others. Huxtable-Hammond installed the (clevises) because it could not stand the lost time. In Calamari and Perillo, supra, § 18-26, p. 665, it is said, “Often, however, the delegate assumes the duty which has been delegated to him [as Huxtable-Ham-mond did here]. * * * In such a case the delegate is liable to both his promisee and to the third person who is a third party creditor beneficiary of the delegate’s promise.”

Under this evidence, it is sufficiently established for the jury to determine that St. Regis and Huxtable-Hammond designed, supplied and installed the alleged defective clevises.

Some two months after the brine lines had collapsed, Dr. Donald Gibson, a mechanical and metalurgical engineer, visited the storage facility. At that time, the brine pipes, being ten, twelve and fourteen inches in diameter, had been put back into place. Dr. Gibson went to a room where the fallen debris had been stored and obtained clevises, rods and pieces of pipe from salvage, given to him by David Waller, plaintiff’s general manager. Some of the clevises had failed, others had not, and these were taken by him for analysis in the future. He was able to determine that the salvage parts had been involved in the collapse. Dr. Gibson left the mine and returned to Columbia and made a metalurgical analysis of the available samples, and did physical testing to determine the strength of the various brackets (clevises) which he had in his possession. The physical test he did was to pull the brackets to determine their strength, an evaluation done at room temperature on brackets which had been in the mine for some time, and on those which were identically similar. He repeated the tests at zero degrees Fahrenheit. The tests disclosed that the strength at room temperature of both used and unused brackets was practically the same, but at zero degrees Fahrenheit the strength of the used bracket was dramatically lower than those which had not been used. The used brackets had lost strength down to less than half of their room temperature strength. Dr. Gibson made a microscopic examination of the structure of the metal to determine how it had been formed and what effect the environment had on the metal. He found that the brackets had been bent cold, and at the U-shaped bend the material had been very severely cold worked in the localized area of the bends. It was obvious to Dr. Gibson that from the decrease in strength of the brackets at zero degrees Fahrenheit, that the materials had undergone ductile [a metal capable of being permanently drawn out, or hammered thin, or being molded or worked. Webster’s New International Dictionary, 2d Edition] to brittle transition temperature change. Dr. Gibson further testified that when a piece of material is “cold bent” it is subject to distortion in a very localized area and a potential for accelerated corrosion in the area of the localized bend. He gave his opinion as to what caused the brackets (clevises) to fail: “A. The clevis — had been fabricated from a material which would undergo a ductile to brittle transition by the time it reached the cold storage temperature that it had to survive in. That’s a conclusion, number 1, which indicates a wrong material had been chosen with respect to alloy content for that bracket. Number 2, in processing the bracket, this very sharp cold bend did two things, first of all it created an abnormal high stress concentration factor, which is proportional to the radius of the bend; and, second, it left the material in that localized area, in what we call a high energy state, which causes it to undergo an accelerated corrosion in the very localized area of the bend.” Dr. Gibson made computations of the weight load the clevis would handle and found that at room temperature, seventy-eight degrees Fahrenheit, the clevises, which had been in use would support 22,-187 pounds to failure; at zero to minus five degrees below zero, the weight load dropped to 8,300 pounds. There was evidence that because of humidity, there was four to six inches of frost built up on the brine line. Dr. Gibson testified that the density of frost, eight-tenths that of water, weighs 49.92 pounds per cubic foot. He calculated that four inches of frost would constitute seventy-two pounds of load per running foot on a twelve inch line; seventy-eight and a half pounds per running foot on a fourteen inch line; and sixty-one pounds per foot on a ten inch line.

On deposition, Dr. Gibson testified that he had not seen the plans of the cold storage system, but if he did any additional work opposing counsel would be notified which he failed to do. Dr. Gibson was not allowed to give any testimony or conclusions with respect to the adequacy of the plans, which plaintiff’s counsel learned shortly before trial would be in evidence. In addition to his tests, set forth above, he did give his opinion as to the proximate cause for the particular clevises to have failed: “A. The failure was caused because of overload, as one factor, the fact that the material had undergone a ductile to brittle transition by the time it had reached zero Fahrenheit or the cold storage temperature — room temperature, and that as such had become very susceptible to stress concentration, which was caused by the method of forming, as well as the normal anticipated corrosion which occurred in the environment in which it was placed.”

David L. Waller, plaintiff’s Vice President and General Manager, testified: He was present about thirty minutes after the brine lines had collapsed, and saw legs of some of the clevises still attached to the ceiling plate — the bottom portions of the clevises were broken. A decision was made to clean up and restore the brine lines to prevent further damage to stored products, and that was accomplished in about two weeks, using a contractor. The debris was moved to another room from which Waller or someone under his control supplied Dr. Gibson with the items which he examined and tested. Waller testified that the total length of the brine lines which fell was about 2,200 to 2,400 feet. There was a lot of crushing when the pipes fell on stored products, and the salt water and a rust inhibitor destroyed the products. Smaller, two and a half inch, feeder lines, which fed the brine to air handlers, fell and broke also with the larger brine lines. There was no practical way to defrost the brine lines, but the air handlers had an automatic warm brine defrost system. Waller had never observed any damage to the brine lines caused by forklifts coming into contact with them.

Plaintiff proved all of the elements to establish strict liability in tort against St. Regis and Huxtable-Hammond under Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362 (Mo.1969), which adopted the guidelines therefor of Restatement, Law of Torts (Second) § 402A. Defendants sold (supplied) the cold storage equipment to plaintiffs predecessor, Overland. The testimony of Dr. Gibson, if believed by the trier of the fact, establishes that the suspension clevises were defectively designed, in that they had lost half of their room temperature strength at the very cold environment in which they had been placed which was necessary to their proper use. He determined that the clevises had been cold bent, resulting in their going through a ductile to brittle temperature change, resulting also in distortion and a potential for accelerated corrosion. His opinion was that the wrong material had been chosen with respect to alloy content. As noted above, Dr. Gibson gave his further opinion as to the proximate cause of the clevises failure, which tracked his findings from the tests which he had made. The clevises were installed in 1970, and the collapse occurred about seven years later. The jury could find that the clevises were defective in design when supplied and installed, which in that condition were unreasonably dangerous to plaintiff as a usér.

There was no question but that St. Regis and Huxtable-Hammond were in the business of selling and supplying the clevises as a product pursuant to their subcontracts with Ramey. A supplier is in the same position as a seller under the doctrine of strict liability in tort. 72 C.J.S.Supp. Products Liability, § 40, p. 60. See also the Chubb case, supra, page 781[22], holding that Kansas City Structural Steel might be strictly liable for providing and welding steel beams in place, and Bethlehem Steel Corp. might also be liable in providing allegedly defective steel bolts to secure the Kemper Arena roof supports. Note Gabbard v. Stephenson’s Orchard, Inc., 565 S.W.2d 753 (Mo.App.1978), holding that the orchard was subject to the rule of strict liability as a lessor or bailor (supplier) of defective applepicking ladders in the usual course of its business. As stated in Gunderson v. Sani-Kem Corp., 674 S.W.2d 665, 668 (Mo.App.1984), the word “sells” is merely descriptive, and the test for determining the applicability of the rule (of strict liability) is not the sale of the product, but rather the placing thereof in commerce. “Thus, liability is imposed on all those in the chain of placing a defective product in the stream of commerce, and the product need not be actually sold if it has been injected in the stream of commerce by other means.” The evidence is clear that St. Regis and Huxtable-Hammond were engaged in the business of selling, supplying and installation of refrigeration pipes and fixtures such as the one done for plaintiff, so the second element of the Restatement rule and the Keener case is satisfied. Plaintiff had never done any alteration to the pipes which collapsed since their installation, so the third element, that the equipment reached it without substantial change, is likewise satisfied.

The evidence tends to show that plaintiff used the equipment, pipes and hanger equipment, in the manner that it was intended — to convey chilled brine to air handlers in order to super cool refrigeration rooms. There was evidence that plaintiff occasionally used forklifts to dislodge accumulated frost or ice (a foreseeable consequence of intended use) from the brine lines, but there was no evidence that such practice ever damaged any part of the system.

Considering all of the evidence in its light most favorable to plaintiff, it was sufficient to prove that St. Regis and Huxtable-Hammond jointly designed, supplied and installed the alleged defective system, and the trial court erred in directing a verdict against plaintiff and in their favor on the claim of strict liability in tort.

In Count II, plaintiff alternatively pleaded that St. Regis and Huxtable-Hammond were negligent jointly, or in the alternative, severally, basically, in failing to design, distribute and install an adequate brine line system, brine lines and supports adequately to sustain the expected applied load in the cold atmosphere where they were used, and in failing to test and inspect hanger brackets to determine that they were adequate to support the brine lines and prevent their failing. Variations of the various themes of negligence are contained in the several paragraphs of Count II. Liability in products liability cases may be predicated on the theory of negligence. “As liability arises in accordance with general principles of negligence, there must be a duty imposed on a manufacturer, seller, or other supplier, with respect to foreseeable dangerous consequences of a product; and the failure to adhere to such a duty constitutes fault, or negligence.” 72 CJ.S.Supp. Products Liability, § 9, p. 15. The original owner, Overland, was the contracting party with Ramey and through the subcontracts with St. Regis and Huxtable-Hammond, by which the latter undertook to design, supply and install the alleged defective clevises. If the clevises were so designed, using materials which were inadequate to forming, so that they would become brittle and be subject to accelerated corrosion, as the proof tends to show, then their failure was foreseeable by St. Regis and Huxtable-Hammond, and there would exist no requirement of privity between them and plaintiff. Chubb, supra, p. 774; cf. Begley v. Adaber Realty & Investment Company, 358 S.W.2d 785 (Mo.1962). There was evidence from which it could be found that the defects in the clevises existed at the outset, so Huxtable-Hammond’s cited ease of Crowder v. Vandendeale, 564 S.W.2d 879 (Mo. banc 1978), a deterioration case resulting from latent structural defects, is inapplicable. Vanacek v. St. Louis Public Service Company, 358 S.W.2d 808 (Mo. banc 1962), does not aid St. Regis, for there by contract, the city relieved defendant of the duty to maintain street railway tracks, in which there was a defect of the surface between the rails which caused plaintiff’s injuries, the holding being that when the duty to repair ends, liability for future injury to disrepair ends unless there is concealment or other circumstances. There was sufficient evidence for reasonable minds to find that the collapse was proximately caused by the defective part under the negligence theory also. The issue was for the jury to determine, and the court likewise erred in directing a verdict for St. Regis and Huxtable-Hammond on the alternative theory of negligence.

The trial court did not, in its discretion, err, in excluding opinion testimony of Dr. Gibson as to any defects in the plans and specifications as contributing to the collapse, because it had not been revealed that he had prior to trial examined those documents, it being agreed that defendants would be advised of any such examination. On retrial, no such surprise will exist, if upon further discovery, Dr. Gibson’s opinion, if any, is revealed so that defendants may meet that testimony. Other questions relating to the sufficiency of objections and foundations as to expert testimony may not recur on new trial, and need not be addressed.

The judgments in favor of Ramey and Crepaco are affirmed. The judgments in favor of St. Regis and Huxtable-Hammond are reversed and as to them the case is remanded for new trial.

All concur.


author: PUDLOWSKI, Presiding Judge.

text:
    RUSK FARMS, INC., Joe C. Jurgensmeyer and James Huhmann, Plaintiffs-Respondents, v. RALSTON PURINA COMPANY, Defendant-Appellant.
    No. 47528.
    Missouri Court of Appeals, Eastern District, Division Eight.
    Feb. 13, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.

      Hamp Ford, Columbia, for defendant-appellant.
    Larry M. Woods, Columbia, for plaintiff s-respondents .
   PUDLOWSKI, Presiding Judge.

Ralston Purina Company appeals from an adverse judgment arising out of “turkey firm purchase contracts” and from a claim for damages for the tort of malicious interference with business relationships. We affirm in part and reverse in part.

The initial dispute arises out of a provision in the agreement between Ralston Purina Company (Ralston) and respondent, Rusk Farms, Inc. Ralston is a corporation engaged, among other commercial activities, in the production of feeds, tonics and medicines for poultry and animals, including turkeys. Rusk Farms is a Missouri corporation. The sole shareholders, as well as the officers and board members of the corporation, are Jim Huhmann (Huhmann) and Joe Jurgensmeyer (Jurgensmeyer).

Under the agreement dated September 20, 1974, titled “Ralston Purina Company Firm Purchase Turkey Agreement California, Missouri Plant 1975 Crop Year,” Rusk Farms agreed to purchase from Ralston, 78,000 turkey poults to be raised in the Syracuse/Stover, Missouri area commencing on or about December 1, 1974. The purchase price for each flock of turkeys was to be determined as stated in Firm Purchase Agreement as follows:

Compute the weighted average price for feed for each flock as determined by Rusk Farm’s and Ralston’s records by multiplying the pounds used of each feed by the established f.o.b. truck mill bulk cash price (any cash discount or load allowance is not included in the cash price) to secure an overall weighted average per ton price. Prices used would contain no medicants. The cost of any medication, even though mixed in the feed, must be removed in establishing the mill price.

The printed agreement prepared by Ral-ston provided for termination by written notice by either party to the other. Upon termination, the agreement was to remain in effect after receipt of notice only with respect to flocks on feed at the time of receipt of the notice. Finally, the agreement provided that the written contract constituted the entire agreement between the parties.

Prior to the execution of the agreement, both parties met in Sedalia, Missouri to discuss the conditions. At that time, Tom Hagen, Director of Turkey Operations, Checkerboard Farms Division, explained that the 1975 agreement was making a change with respect to the method of treating the pricing of birds as compared to prior years. Hagen explained that respondents would not get the cash discount and load allowance as had been provided in previous agreements.

Upon delivery of the poults, Jurgensmeyer and Huhmann allocated the birds among themselves. In December 1974, a few days after execution, Ralston and Rusk Farms orally amended the amount of turkeys to be grown. The total number of poults accepted by Rusk Farms was 87,000.

The first flock of grown turkeys was killed April 16 and April 25, 1975. Prior to the flock being killed, Huhmann requested a change in the contract. Huhmann inquired upon Royce McEver, an employee of Ralston, whom Jurgensmeyer and Huh-mann had been dealing with, whether Rusk Farms could keep the cash discount and load allowance. McEver did not have authority to approve the change, however, he informed Huhmann the change had been approved. McEver never stated where he received authority to make the change.

When payment from the first flock was received, it did not include the cash discount and load allowance. In fact, Ralston, without approval of respondents, had computed the purchase price by lowering the average feed price by a cash discount and load allowance.

Following the receipt of payment for the first flock, respondents and Ralston entered into discussions concerning Ralston’s taking credit for the cash discount and load allowance contrary to the terms of the written agreement and the alleged modification by McEver. When the discussions broke down, Jurgensmeyer and Huhmann notified Ralston that they were taking the remaining birds off the agreement. At that time Jurgensmeyer had 24,000 hens still growing in the field and Huhmann had 23,000 toms.

On June 16, 1975, Kent D. Kerr, Division Vice President and Director of Checkerboard Farms Division of Ralston Purina, sent a letter to nine turkey processors in the central United States. The letter was as follows:

This is to advise you that Joe Jurgen-smeyer, or his wholly owned corporation, Rusk Farms, Inc., may attempt to sell you approximately 24,000 hen turkeys for processing this week or shortly thereafter and (or) approximately 23,000 tom turkeys for processing during the last of July. These turkeys have been contracted for sale to us and shackle space has been reserved for these turkeys at the Cargill Plant in California, Missouri. We would appreciate it, therefore, if you would not purchase these turkeys or at least notify us before doing so.
About one-half of the hens are located at the Arnold Holstein Farm, Rt. 135, Sto-ver, Missouri and the other half at the Charles Boyer Farm, Rt. 35, Stover, Missouri. The toms are located at the Hubbard Hill Farm, Syracuse, Missouri.
Thank you very much for your cooperation in this matter.
Sincerely yours,

Subsequently, Jurgensmeyer and Huh-mann brought suit for the cash discount and load allowances withheld by Ralston for all turkeys delivered and killed pursuant to the turkey firm purchase agreements. Additionally, Jurgensmeyer claimed damages resulting from Ralston’s failure to deliver 10,000 hens which were part of the original agreement between Ralston and Rusk Farms. Jurgensmeyer and Huhmann also sought actual and punitive damages as a result of Ralston’s letter to various turkey processors. The trial court granted Ralston’s motion for directed verdict in regard to Ralston’s failure to deliver 10,000 hens pursuant to the agreement. The jury awarded Jurgensmeyer $1,250, $900 and $2,458 on the turkey firm purchase agreements. Huhmann was awarded $3,963. On the claim for malicious interference with business relationships, the jury awarded Jurgensmeyer $500,000 actual damages and $200,000 punitive damages. The jury also found for Huhmann awarding him $25,000 actual damages and $50,000 punitive damages.

Ralston raises eight points on appeal. First, Ralston argues the trial court erred in submitting Count V of plaintiff’s petition, tort of malicious interference with business relationship, because: (a) as a matter of law, Ralston was justified in writing the letter and (b) the evidence failed to establish a submissible jury issue on whether Ralston’s letter caused a breach or termination of any business relationship or expectancy of any relationship. Second, on the issue of damages for the tort of malicious interference with business relationships: (a) respondents failed to plead and prove special damages and (b) the evidence pertaining to lost profits was not supported by facts and figures showing a reasonable basis and method of calculation. Third, respondents’ claims based on the oral waiver of the written contract terms concerning the cash discount and load allowance were barred by the statute of limitations. Fourth, plaintiffs Joe Jur-gensmeyer and James Huhmann were not real parties in interest. Fifth, the trial court erred in admitting oral evidence as to modifications of the written agreement in violation of the Statute of Frauds and the Parole Evidence Rule. Sixth, the trial court erred in admitting into evidence purported statements of Royce McEver constituting hearsay. Seventh, the trial court failed to instruct nor was any instruction offered by plaintiffs covering the issue of agency. Eighth, the trial court erred in giving instructions 10 and 13 because the instructions failed to submit for jury determination whether the contract had been modified or waived. Ralston alleges numerous errors pertaining to respondents’ award for damages based on the oral waiver of the written contract terms concerning the cash discount and load allowance.

First, Ralston contends Jurgensmeyer and Huhmann were not parties to the agreement and as such were not real parties in interest and had no right to maintain claims. The agreement which formed the basis for the case at bar was entered into between Rusk Farms, Inc. and Ralston. However, respondents’ Second Amended Petition alleged that Rusk Farms, Inc. was the duly authorized agent and contracting party on behalf of Jurgensmeyer and Huh-mann.

It is well established that a corporation, as well as a natural person, may act as agent for another. Whether such relationship exists may be proved by circumstances, such as the relation of the parties and their conduct with reference to the particular subject matter dealt with. Russell v. Union Electric Co. of Missouri, 238 Mo.App. 1074, 191 S.W.2d 278, (1945).

The record shows Royce McEver, appellant’s agent, suggested establishment of Rusk Farms, Inc. for Ralston’s benefit. His rationalization was that it was more convenient for Ralston to have one dealership to handle both accounts rather than deal with two individuals. Respondents concurred and incorporated. Further, Jim Kelly, former director of Ralston’s poultry production, testified by deposition, that he was aware that Jurgensmeyer and Huh-mann were separately contracting for turkeys through Rusk Farms, Inc. We conclude that there is sufficient evidence to show that Jurgensmeyer and Huhmann were the real parties in interest. Appellant’s point is denied.

Ralston next contends respondents’ claims concerning the cash discount and load allowance is barred by the Statute of Limitations under Section 400.2-7,25 RSMo 1969 or Section 516.120 RSMo 1969. Section 400.2-725 RSMo • 1969 provides that “an action for breach of any contract for sale must be commenced within four years after the cause of action accrued.” Section 516.120 RSMo 1969 provides that all “actions upon contracts ... express or implied, except those mentioned in Section 516.110 ...” must be brought within five years after the cause of action accrued. Section 516.110 RSMo 1969 provides that “an action upon any writing” must be brought within ten years after the cause of action accrued.

Respondents’ original petition was filed September 10, 1975 and alleged a cause of action for breach of the contract between Rusk Farms and Ralston. A second amended petition was filed November 16, 1982. This amended petition alleged modifications or waiver of the original contract and a breach by Ralston.

It is not disputed, regardless of which statute applies, that the limitation for respondents’ cause of action had run by 1982. Respondents, however, rely on Rule 55.-33(c) and contend that the second amended petition relates back to the date of the original pleading in 1975 and thus avoids the bar of the statute. Rule 55.33(c) provides in pertinent part:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. ...

Ralston argues that respondents’ claims did not relate back because the second amended petition included the pleading of the original written agreement but then added modification and waiver with respect thereto. Ralston misinterprets the application and meaning of Rule 55.33(c).

[T]he function of any amendment to a petition is to cure a lapse in the pleading but without changing the original cause of action; and when the amendment is for this purpose it relates back, according to Rule 55.33(e), to the date on which the first petition was filed. If the amended pleading, however, requires proof of ultimate facts different from those necessary to sustain the original claim and thus adds a new cause of action, the amendment does not relate back so as to save the action from the bar of limitations.

Welch v. Continental Placement, Inc., 627 S.W.2d 319 (Mo.App.1982); Briggs v. Cohen, 603 S.W.2d 20 (Mo.App.1980).

Applying the standard set forth in Rule 55.33(c), we hold respondents’ second amended pleading related back. Additional facts will not necessarily prevent an amended petition from relating back. To reach this result, the additional facts must also create a new cause of action. Welch. Respondents' original petition is a claim to recover damages for breach of a contract. The amended petition also dealt with the same transaction and alleged the same cause of action. The petition related back and thus avoided the bar of the Statute of Limitations.

Next, Ralston alleges trial court error in admitting oral evidence as to the modification of the written contract as improper under the statute of frauds.

In analyzing the case at bar, we find the ultimate fact question was not whether the written contract had been modified or waived but whether Ralston had breached the contract by lowering the average feed price by the amount of the cash discount and the load allowance. The written contract provided that the purchase price would be determined by computing “the weighted average price for feed ... by multiplying the pounds used of each feed by the established f.o.b. truck mill bulk cash price.” Any cash discount or load allowance was not to be included in the cash price. Respondents’ petition alleged, and the evidence proved, that Ralston deducted the cash discount and load allowance to compute the overall weighted average. This was contrary to the express written terms of the contract that provided “any cash discount or load allowance is not included in the cash price.”

While this court acknowledges the business practice of “cash discounts” and “load allowances” no evidence was presented to this court by either party of the proper method of payment for these allowances. Ralston argues they were entitled to the discount and load allowance and as such were justified in deducting said discount and allowance from the bulk mill cash price. Assuming arguendo that Ralston’s statement is correct and they were entitled to the cash discount and load allowance, our interpretation of the written contract patently precludes Ralston from deducting the discount and allowance. Ralston should have paid the full cash price and then requested payment for the discount and allowance. While the proper packing industry practice may have been to allow the discount and allowance to be deducted from the cash price before payment, there is no evidence of this practice before this court. As such, the terms of the written contract must prevail. Ralston breached the contract by deducting the cash discount and load allowance. As a result, such error, if any, in admitting testimony regarding the oral waiver or modification was harmless.

Ralston also objects to the admission of respondents’ testimony of statements made by Royce McEver. For the reasons previously mentioned, any error in their admission is harmless. However, in this instance no error occurred.

Respondents had requested a change in distribution of the cash discount and load allowance. McEver told respondents he didn’t think they could have it, but he would try. Subsequently, McEver informed respondents they could have the cash discount and load allowance. However, McEver never informed respondents where the authority for the change came from.

Respondents acknowledge McEver did not have the authority to change the terms of the contract. Respondents, however, argue that McEver had the authority to pass communications from Ralston to them. An admission of an agent may be received in evidence against his principal, where the agent, in making the admission, was acting within the scope of his authority and the transaction or negotiation to which the admission relates was pending at the time it was made. State ex rel. S.S. Kresge Co., v. Shain, 340 Mo. 145, 101 S.W.2d 14 (1936). Thus, the issue presented for our review is whether or not Royce McEver was acting within the scope of his authority as an agent for Ralston.

A review of the facts reveal that McEver was acting within his authority. McEver negotiated the agreement between Tom Hagen and respondents. Jim Kelley stated McEver conveyed communications between the turkey growers and Checkerboard Farms. Finally,' McEver testified that he was the only person from Ralston who communicated with Jurgensmeyer and Huhmann before the dispute arose.

Where a principal has created an appearance of things that it causes a third person reasonably and prudently to believe that a second person has the power to act on behalf of the principal, the principal is thereby bound to the third party who relies upon the appearance so created. In such a case, the appearance of power is the equivalent of expressly conferred power insofar as third persons are concerned. Trail v. Industrial Commission of Missouri, et al., 540 S.W.2d 179 (Mo.App.1976). Ours is such a case. While respondents knew McEver did not have authority to approve a change in contract terms, McEver was the person to inquire about a change. All communications from respondent to Ralston were channeled through McEver. Ralston created the impression that Royce McEver could deliver an inquiry to the proper authority and relay an answer. If any loss occurs by reason of the acts of the agent, the loss must fall upon the person whose conduct caused the mistake. Walker v. Multi-Wood Products, Inc., 581 S.W.2d 617 (Mo.App.1979). As stated earlier, Ralston was responsible for creating the situation. The trial court did not err in admitting into evidence admissions made by Royce McEver.

On the same issue of agency, Ralston alleges error by the court in failing to submit to the jury Missouri Approved Instruction 18.01. MAI 18.01 directions state that “where a defendant master or principal is being sued and he has denied agency of the alleged servant or agent, paragraph First in the verdict directing instructions shall be in the following suggested form:

First, the driver Jones (was an employee of Ajax and) was operating the (Defendant) motor vehicle within the scope and course of his (employment by) (agency for) (Defendant’s name) (at the time of the collision).

The Notes on Use to MAI 18.01 further state that “when the issue of agency is submitted, the appropriate definition must also be submitted.”

While Ralston denied in its answer that McEver was acting within his authority the word denial means more than a mere perfunctory or ostensible denial in the defendant’s answer. Young v. Frozen Food Express, Inc., 444 S.W.2d 35, 40 (Mo.App.1969). Further, where plaintiff’s evidence of agency was not refuted by other evidence, agency is a question of law and need not be hypothesized in plaintiff’s verdict director. Cline v. Carthage Crushed Limestone Company, 504 S.W.2d 102 (Mo.1973); Bowers v. S-H-S Motor Sales Corporation, 481 S.W.2d 584 (Mo.App.1972).

It is not disputed that McEver never had authority to approve a change in the contract terms. However, the authority in question was McEver’s communication of Ralston’s consent to a waiver of the cash discount and load allowance. Ralston has presented no evidence to refute McEver’s authority.

On the last issue pertaining to the cash discount and load allowance, Ralston alleges error because the jury instructions tendered by respondents failed to submit for jury determination the issue of whether the contract had been modified or waived. As stated previously, the ultimate fact question was whether Ralston breached the written contract by failing to pay the contract price for the birds, not whether the contract had been modified or waived. No error resulted by the trial court in not submitting a jury instruction on the issue of waiver.

In regard to the tort of malicious interference with business relationships, Ral-ston contends the trial court erred in not granting its motion for a directed verdict because it had a legal privilege to protect its economic interest in the turkeys under the contract. We disagree.

The basic elements necessary to establish a prima facie case of malicious interference with a business relationship are set out by our Supreme Court as follows:

(1) A contract or a valid business relationship or expectancy (not necessarily a contract);
(2) Defendant’s knowledge of the contract or relationship;
(3) Intentional interference by the defendant inducing or causing a breach of the contract or relationship;
(4) The absence of justification; and
(5) Damages resulting from defendant’s conduct.

Fischer, Etc. v. Forrest T. Jones & Co., 586 S.W.2d 310, (Mo. banc 1979). In conjunction with the elements in Fischer, Ralston cites Downey v. United Weatherproofing, Inc., 253 S.W.2d 976 (Mo.1953) for the principle that the right of a party under a contract is a protectable interest. We agree with Downey. However, the evidence showed, and the jury found, that Ralston breached the terms of the contract by failing to pay the contract price of the birds. As a result of Ralston’s breach, it lost its protectable interest. Therefore it had no justification for preventing respondents from selling the turkeys on the open market. Absent justification, Ralston is subject to liability resulting from its actions.

On this point, Ralston contends respondents failed to establish any connection between the letters sent to the area’s turkey producers and their business relationships. In review, we must accept as true all evidence and permissible inferences favorable to the prevailing party and disregard any contradictory testimony. S.G. Adams Printing & Stationery Company v. Central Hardware Company, 572 S.W.2d 625 (Mo.App.1978). However, the evidence must show that “but for” the act of Ralston writing the letters, respondents would have done future business with the recipients of the letter by selling the turkeys to any one or more of them. Tri-Continental Leasing Co. v. Neidhardt, 540 S.W.2d 210 (Mo.App.1976). We review the evidence as it pertains to the individual respondents, Joe Jurgensmeyer and Jim Huhmann.

JURGENSMEYER

Ralston mailed the letter to Louis Rich Pood Corp., Empire Foods, Inc., Land-O-Lakes, Inc., Barron Turkey Processors, Levin Bros. Poultry Company, Banquet Foods Corp., Joe Morrow Foods, Bartley Brand Foods, Inc. and Armour Foods. Respondent Jurgensmeyer, testified that he did not sell any turkeys to all of these companies. By inference, Jurgensmeyer wishes to establish Ralston’s letters as the cause of his discontinued business with all of them.

An inference is a deduction logically and properly drawn by reason from proven or admitted facts and cannot be predicated upon mere surmise or conjecture. Hayes v. National Super Markets, Inc., 612 S.W.2d 819 (Mo.App.1981). Further, proof by circumstantial evidence must establish the desired information with such certainty as to cause it to be the more reasonable and probable of the conclusions to be drawn, and must rise above the stature of guesswork, speculation or surmise. Jordon v. Robert Half Personnel Agencies of Kansas City, Inc., 615 S.W.2d 574 (Mo.App.1981). With this in mind, Jurgensmeyer has failed to prove, above mere speculation, that the letter written by Ralston interfered with any business relationship between him and Land-O-Lakes, Levin Brothers, Armour Foods and Joe Morrow Foods.

Jurgensmeyer testified he had only done business with Land-O-Lakes once before. Further, there is no evidence that Jurgensmeyer attempted to sell to Land-O-Lakes after 1975. The same rationale applies to Levin Brothers and Armour Foods. Jurgensmeyer has only sold turkeys to these companies once. As to Joe Morrow Foods, Jurgensmeyer has never engaged in any business relationship. The evidence fails to support the inference that Ralston’s letter impaired a business relationship or expectancy of a relationship.

However, in regard to the other companies, Jurgensmeyer has met his burden. The evidence in light most favorable to Jurgensmeyer reveals a business relationship with Louis Rich beginning in 1970. While Jurgensmeyer continued to do business with Louis Rich after 1975, Louis Rich originally refused to purchase turkeys from him until he wrote a letter guaranteeing the turkeys to be delivered were not under contract. Jurgensmeyer also had to explain his side of the dispute to Louis Rich management.

Barron Turkey Processors had purchased turkeys from Jurgensmeyer every year since 1969. In 1975 Barron refused to purchase 12,000 turkeys offered for sale. Barron had never declined to purchase from Jurgensmeyer. Likewise, Jurgensmeyer had been selling to Bartley Brand Foods one to two flocks a year. In 1975, Bartley refused to purchase. The same was true for Banquet Foods and Empire Foods. Jurgensmeyer had sold to both companies on a number of occasions. Neither had ever refused to buy from him. In 1975, after receiving Ralston’s letter, both companies declined all offers.

Lastly, Jurgensmeyer alleged that Ral-ston’s letter interfered with his relationship with Swift Company. Swift was not a recipient of Ralston’s letter. Phil Parrish, procurement manager for Swift Company, never saw the letter nor had any knowledge of the letter. Parrish did know of a “dispute” between Jurgensmeyer and Ral-ston. We conclude there is no evidence to establish the necessary elements of malicious interference with Swift.

Nevertheless, the evidence supported a finding of interference with Louis Rich, Barron, Bartley, Banquet and Empire Foods. The trial court correctly submitted the issue of causation to the jury and properly advised the jury in the burden of proof instruction that they could consider reasonable inferences derived from the evidence.

HUHMANN

The evidence presented at trial revealed that respondent Huhmann dealt with two companies, Swift and Company and Louis Rich Foods. As stated earlier, the evidence does not support a finding of tortious interference in regard to Swift. With regard to Louis Rich, the evidence also does not support the jury’s finding. We find that Huh-mann first began to do business with Louis Rich in 1975. Louis Rich initially would place a limit on the number of birds they would buy from a grower. To increase the amount purchased, a grower had to build a relationship with the company. The evidence failed to show that Huhmann had established such a relationship.

However, the rule is that for every actionable injury there is a corresponding right to damages, and such injury arises whenever a legal right of plaintiff is violated. If there is no inquiry as to actual damages, or none appears on inquiry, the legal implication of damages remains and nominal damages are given. Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947 (1943). Therefore, the jury award for $25,-000 actual damages for the tortious interference with business relationships is improper and is vacated and $1 nominal damages is awarded. Wente 169 S.W.2d at 954.

Lastly, Ralston argues that respondents failed to plead and prove special damages and further failed to prove lost profits by a reasonable basis.

Respondent’s second amended petition with respect to damages alleged:

That such letter thereby damaged the ability of the plaintiffs to market not only the turkeys previously designated for the defendant, but also other turkeys owned by plaintiff. Said letter has caused plaintiff severe, substantial and irrepairable damaged in the market; said letter reduced the plaintiffs’ ability to sell its turkeys to turkey processing plants in the Central United States, and has caused and will cause in the future much expense and trouble ... constituted unlawful and torturous interference with plaintiffs of their market for the selling of their poultry and cause them irrepairable harm in the future and the relationship with such processing plants and commerce in general ... and the plaintiffs Joe C. Jurgensmeyer and James Huhmann have sustained damage in the sum of $1,000,000.00 by reason thereof.

Generally, loss of business profits must be specifically pleaded in tort actions. Parsons Construction Company v. Missouri Public Service Company, 425 S.W.2d 166 (Mo.1968). However, an “injury” as an invasion of a legally protected right may cause either general or special damages. If the former, no special pleading is required. If the latter, the pleading must set forth the factual matters that give reasonable notice of the nature and extent of the claim. Porter v. Crawford & Company, 611 S.W.2d 265 (Mo.App.1980).

In the case at bar, no special pleadings were required. Respondents alleged that the letter curtailed their ability to sell their turkeys and in addition it would continue to create additional expense. Evidence revealed that respondents were in the business of selling turkeys. They further alleged a tort which was the malicious interference with a business relationship. The evidence showed that their lost profits were the natural, necessary and logical consequence of respondents’ inability to sell their turkeys.

We find respondent’s petition for damages sufficient. With this holding, we address Ralston’s next argument that the method of computating respondent’s lost profits was erroneous. To establish loss of profits, respondents testified as to their net profit per bird based on 1973, 1974 and prior years. Their computations were based on their personal knowledge of the income they received less costs such as poults, feed, lights, fuel, electricity, taxes and insurance. Such evidence is sufficient to provide a rational basis for estimating the amount of the lost profits. In proof of lost profits, the requirement is not absolute certainty, but only a sufficient factual base that the estimate of loss is not based on speculation and conjecture. Swiss-American Importing Company v. Variety Foods Products Company, 471 S.W.2d 688 (Mo.App.1971).

Ralston cites Solari Furs v. United States, 436 F.2d 683 (8th Cir.1971), for the proposition that respondents testimony on lost profits should have been excluded unless respondents’ records were made available in court for examination. Ralston misinterprets Solari Furs. Solari Furs was a bankruptcy case where the federal government sought to recover income and excise tax from the sale of furs. All the records of the bankrupt were in court, as well as summaries in the form of balance sheets and profit and loss statements prepared by their accountants. The bankrupts offered both documentary and testimonial evidence and the bankruptcy referee looked at their records to clarify the evidence they gave and to make it more meaningful. At no point did the court hold that the records had to be in court.

Miller v. Great American Ins. Co., 61 S.W.2d 205 (Mo.App.1933), is on all fours with the proposition that respondents did not have to produce their records. The court stated at page 207:

[The] plaintiff was not attempting to prove the contents of his books, records, invoices by oral evidence; rather he was attempting to prove the value of his stock of goods at the time of the fire. To the extent that his books, records and invoices might have disclosed such value, he would have had two means of proof, one by his documentary evidence, and the other by his parol evidence. However, the fact that his documentary evidence would have been competent, if offered, did not thereby render his parol evidence of the same fact incompetent; and therefore, the objection that the testimony of the witness was not the best evidence of the fact to be proved is not well taken.

Additionally, the fact that a study by a witness of certain records of the company also gave him part or all of that same information does not prevent his testimony when based on his personal knowledge. Central & Southern Truck Lines v. Westfall GMC Truck, Inc., 317 S.W.2d 841 (Mo.App.1958). In that case, the plaintiff claimed damage to its truck trailer due to defendant’s negligence. One of the plaintiff’s employees had studied certain records of the plaintiff with respect to the earning record of the trailer that was damaged. The defendant objected to the question as to what the earnings records of the trailer were, which objection was overruled, and the witness testified about $350.00 per month which represented its gross earnings in approximately the year preceding it having been wrecked, “less 6% for administrative, is what we figure our trailer earns us.” The objection was based on the best evidence rule. The court stated, however, that the answer of the witness revealed that he was basing his statement as to the monthly net earnings of the truck on his personal knowledge of the subject and that this was true even though he constantly reviewed company records because of his position with the company and obtained information therefrom. At no time did the witness attempt to undertake to state the contents of any book or record or any part thereof. The court then cited 32 C.J.S., Evidence, Section 792d, page 721:

The rule does not apply to exclude parol evidence given by witnesses whose testimony is founded on their personal knowledge independent of the books.

Such are the facts of our case. Respondents never undertook to state the. contents of any particular record or book regarding lost profits. They merely testified that they had computed their net profit per bird on several occasions in the past and knew what the net profit amounted to. The evidence was sufficient to provide a rational basis for estimating the amount of lost profits.

On the issue of punitive damages, the assessment of damages is primarily the function of the jury. McGowan v. Hoffman, 609 S.W.2d 160 (Mo.App.1980). The court is authorized to order a remitter only when the verdict is so grossly excessive that it shocks the conscience of the court and convinces the court that both the jury and the trial court abused their discretion. We will exercise our power to interfere with the judgment of the jury and the trial court with caution and only where the verdict is manifestly unjust. Koehler v. Burlington Northern, Inc., 573 S.W.2d 938 (Mo.App.1978).

We have reviewed the evidence in light of the foregoing considerations and have concluded that the jury’s award as pertaining to Joe Jurgensmeyer was not so excessive as to require a remitter. As stated earlier, the evidence does not support a finding of actual damages sustained by Joe Huhmann. The award for punitive damages is affirmed.

Judgment affirmed in full as pertaining to Joe Jurgensmeyer and affirmed as pertaining to punitive damages awarded to Joe Huhmann. Actual damages awarded to Joe Huhmann are reversed and vacated and nominal damages of $1 are awarded.

WILLIAM E. TURNAGE and MELVYN W. WIESMAN, Special Judges, concur.


author: SMITH, Presiding Judge.

text:
    Carlton B. SHAFFER, Plaintiff-Respondent, v. SEARS, ROEBUCK AND COMPANY, Patricia Zoeller, Helen Scavatta, and Richard Ward, Defendants-Appellants.
    No. 48444.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 13, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.
    Application to Transfer Denied May 29, 1985.

      Joel D. Monson, St. Louis, for defendants-appellants.
    Stephen M. Glassman, Clayton, for plaintiff-respondent.
   SMITH, Presiding Judge.

Sears, Roebuck and Company appeals from a judgment against it based upon a jury verdict awarding plaintiff $15,000 actual damages and $275,000 punitive damages for malicious prosecution. The three individual defendants also appeal from judgments of $15,000 each for actual damages.

On July 25, 1981, plaintiff and his wife went to Sears Crestwood store to shop. They split up and plaintiff went to the hardware department while his wife went to the bathroom supply department. Plaintiff brought with him three small sockets for use with a inch drive handle. He had previously purchased these sockets from Sears Chesterfield store. The sockets were “Craftsman,” Sears house brand. The Chesterfield store had not had the necessary drive handle in stock. Plaintiff had purchased a drive handle from another store but that handle would not fit the Craftsman sockets and he returned it. Plaintiff testified that he brought the sockets to make sure they would fit the handle he selected. Plaintiff needed the sockets and handle for his work as an electronics technician. After selecting a handle and testing it for fit on his sockets plaintiff moved to the aisle where sockets were displayed. He tried several other sockets on the handle to make sure they would also fit if he should need them in the future. He then returned those sockets to their bins and proceeded on to find a level. He inquired of a salesman where levels were located. At that time he still had his sockets in his hand. One of them may have been on the handle. After selecting the level plaintiff went to meet his wife. At some point he put his sockets into his pocket. Plaintiff and his wife paid for their purchase of over $30 with a credit card. These purchases included the socket handle and level but not the sockets. The sockets had a cost to Sears of under $3.00 and a retail value of approximately $5.00. As they left the store plaintiff and his wife were stopped by defendant Zoeller, a security guard employed by Sears, and another security guard. Upon request plaintiff produced the sockets from his pocket. One contained a partially smudged Sears label. The other two did not.

Zoeller had been located in an observation post above the hardware department at the time of plaintiffs activities in that department. Through a slit caused by raising the ceiling tile she had observed plaintiff. She believed she saw him remove three sockets from the bins and place them in his pocket. Photographs before the jury raise doubt that from her observation post Zoeller could identify the objects in plaintiff’s hand or the number. Zoeller called for assistance and followed plaintiff as he was leaving the store.

Plaintiff was taken to the security office and asked about the sockets. He advised Zoeller that he had purchased them at the Chesterfield store from a young blonde man named John and had brought them from home. Zoeller called the police and reported the circumstances to the officer who arrived. The sockets were confiscated and plaintiff was allowed to leave. Several days later, after consulting with her supervisor, defendant Scavatta, and with Scavat-ta’s knowledge, consent and authority, Zoeller signed a complaint against plaintiff at the police department. No investigation of plaintiffs explanation was undertaken by Zoeller, Scavatta or any other Sears employee.

Plaintiff located “John” at the Chesterfield store. John remembered the circumstances of plaintiff’s purchase of the sockets. Plaintiff’s attorney then wrote to defendant Ward, the operating supervisor at the Crestwood store, informing him of the identity of John and requesting additional investigation and a dropping of the prosecution. No further investigation was undertaken and the prosecution proceeded. Ward testified that it was Sears’ policy to prosecute all suspected shoplifters whenever a security officer said she had seen a suspect take merchandise, regardless of other factors. There was also evidence that it was Sears’ policy to proceed with prosecution whenever the police were called regardless of subsequent information. Plaintiff was found not guilty in the Crestwood Municipal Court on November 3, 1981. This suit followed.

After argument of the case before this Court the cases of Sanders v. Daniel International Corporation, 682 S.W.2d 803 (Mo. banc 1984) and Lucas v. Daniel International Corporation, 682 S.W.2d 820 (Mo. banc 1984) were decided by the Supreme Court. Following receipt of those cases we took this case off submission and requested additional briefs addressing the impact of those cases on the case at bar. We now reverse and remand.

It is safe to say that Sanders v. Daniel International Corporation, supra, created a monumental change in the law of malicious prosecution as it existed in this state. The court there recognized that “malice,” the heart of the cause of action, consists of three distinct concepts delineated by the court as “degrees.” The first is “malice in fact” or “actual malice” consisting of ill will, spite, personal hatred, or vindictive motives. The second is “malice in its legal sense” embracing any improper or wrongful motive. Under that concept the defendant “must either proceed with an improper or wrongful motive or consciously act with such wanton disregard for the rights of others that a jury may, but need not, infer from such conduct an improper motive.” Sanders, supra, p. 810. The third degree of malice is “malice in law” consisting of a wrongful act done intentionally without just cause or excuse.

The Supreme Court recognized that under the case law of Missouri heretofore existing “malice in law” was sufficient to support an action for malicious prosecution and the award of punitive damages. Because the courts have stated that such malice could be inferred from proof of the element of want of probable cause for the prosecution, the cases in Missouri had virtually eliminated malice as a separate element of the cause of action bearing its name. See Hoene v. Associated Dry Goods Corporation, 487 S.W.2d 479 (Mo.1972) [1-6]; Sanders, supra, [Footnote 3]. The court then held that in order to support a cause of action for malicious prosecution the evidence must establish either legal malice or actual malice — malice in law is insufficient. It specifically held that MAI 16.01 improperly defines the element of malice in such actions. MAI 16.01 was used in the case at bar as required at the time of trial.

The Supreme Court also addressed the question of the degree of malice necessary to support punitive damages. It concluded that actual malice is necessary which it articulated as “prompted or accompanied by ill will, or spite, or grudge, either toward the injured person individually, or toward all persons in one or more groups or categories of which the injured person is a member.” With this resume of Sanders, supra, we turn to the case before us.

Initially we must address whether the Sanders case is applicable to this case which was tried prior to the decision in Sanders. Where a decision changes the substantive law it is applied to cases pending on appeal at the time the decision is issued. Koebel v. Tieman Coal and Material Co., 337 Mo. 561, 85 S.W.2d 519 (Mo.1935) [3-5]; Roth v. Roth, 571 S.W.2d 659 (Mo.App.1978) [25-27]. Sanders changes the law as to the mental state of the defendant necessary to support the cause of action. That is a substantive change and requires application of Sanders to the case at bar. Any question we might have on the question is resolved by the order of the Supreme Court in Weniger v. Famous-Barr Company, January 15, 1985, retrans-ferring to us that malicious prosecution case for re-examination in light of Sanders.

Plaintiff asserts that because the evidence supported a submission under the new standard defendants were not prejudiced by submission under the now condemned MAI instructions. We cannot agree. The jury was permitted to find against defendants based upon a mental state which Sanders declares to be insufficient to support liability. Neither we nor the parties know what degree of malice the jury found in rendering its verdict. We cannot assume its finding was of a higher degree than required by the instruction. The case must be reversed.

We turn to defendants’ contention that the plaintiff failed to present evidence sufficient to make a submissible case under the newly articulated standards and that outright reversal is required. As to compensatory damages we believe the evidence to be sufficient. A jury could have found (but was not compelled to find) that one or more of the individual defendants proceeded consciously to prosecute plaintiff with such wanton disregard for the rights of plaintiff as to infer an improper motive. That finding is one of legal malice sufficient under Sanders to support the cause of action. Here defendants were advised before prosecution was instigated of plaintiffs explanation of the occurrence. They made no effort to check out his story which could have been done by simply contacting another of Sears employees. That employee in fact verified plaintiff’s story. That, coupled with the physical viewing point of the store security officer who purported to see the theft, plaintiff’s payment for items worth six times the value of what he purportedly stole, the condition of the items when taken from plaintiff indicating the possibility of prior purchase, and the inflexible policy of prosecution of Sears testified to, support a finding of wanton disregard of plaintiff’s rights. In addition no investigation was conducted even after plaintiff’s attorney advised the company of the results of his investigation, and prosecution was continued without further review.

We are not prepared to say that plaintiff established a case against each of the individual defendants under the new standard. But we cannot conclude he could not, now that he is aware of the quantum of proof necessary under the new standard. Where plaintiff provided sufficient proof under the law as it existed at the time of trial to make a case, we will not deny him a new trial because he failed to establish sufficient proof to meet a standard he did not know existed.

As to the punitive damages, proof of actual malice is required. As defined in Sanders that proof is lacking. Wanton disregard sufficient for legal malice is not sufficient for actual malice under the Sanders case. We cannot say, however, that plaintiff would be unable to provide evidence of actual malice now that he is aware of the requirements of Sanders. We therefore remand for retrial on both compensatory damages and punitive damages.

Judgment reversed and cause remanded.

SNYDER and SATZ, JJ., concur.

      . Want of probable cause had also come close to being a non-element as the cases had also held that while an acquittal on the merits is not prima facie proof of want of probable cause it is some evidence thereof. Since proof of want of probable cause is proof of a negative, slight evidence is sufficient to prove it. Hoene v. Associated Dry Goods Corporation, supra. The difference between “some" and "slight” has not been clearly articulated.