author: PARKER, Justice.

text:
    Alice LeJEUNE, Individually and as Guardian, Appellant, v. GULF STATES UTILITIES COMPANY, Appellee.
    No. 6837.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 8, 1966.
    Rehearing Denied Dec. 29, 1966.

      Long & Parker, Port Arthur, for appellant.
    Orgain, Bell & Tucker, Beaumont, for appellee.
   PARKER, Justice.

Alice Lejeune, individually and as guardian of the estate of the minor children of the marriage of Alice Lejeune and Joseph M. Lejeune, sued Gulf States Utilities Company for actual and . exemplary damages based on the death of Joseph M. Lejeune on July 26,1963, while an employee of Gulf States Utilities Company. Gulf States Utilities Company moved for and obtained a summary judgment against the plaintiff denying all of plaintiff’s claims and causes of action wherein plaintiff sought to recover actual damages, decreeing that plaintiff’s rights and claims for actual damages are limited to those under the Compensation Laws of the State of Texas without prejudice to plaintiff’s right to try their suit, claim and cause of action against Gulf States .Utilities Company, seeking recovery of exemplary damages by reason of alleged gross negligence of the defendant Gulf States Utilities Company. Trial was had upon the question of exemplary damages resulting in the court instructing a verdict against the plaintiff and in favor of the defendant Gulf States Utilities Company with final judgment entered that the plaintiff do have and recover nothing over and against the defendant. The plaintiff below will be called appellant and the defendant below will be called appellee or Gulf States Utilities Company.

THE SUMMARY JUDGMENT

The appellant’s first point of error is as follows:

“The error of the Court in granting interlocutory summary judgment to the appellee, holding that the Court did not have jurisdiction to inquire into the working agreement between the Texas General Indemnity Company and Gulf States Utilities Company, which is a part of the Contract between these parties, designated as a Contract for Workmen’s Compensation Insurance. In order to determine whether or not such agreement, which is a part of the Contract, is in derogation and would tend to restrict the operation of the Workmen’s Compensation Law.”

This is the sole point of error appellant directs against the summary judgment.

Appellee’s motion for summary judgment on the actual damage issue was predicated on the undisputed fact that appellee was a subscriber under the Workmen’s Compensation Law and thereby was relieved of any liability for actual damages. Distinct and separate grounds, each established by the uncontradicted facts, were specified in the motion, to-wit: (a) res judicata; (b) estoppel and waiver; (c) election of remedies ; (d) that the policy and endorsements were authorized by law of the State of Texas and approved by the State Board of Insurance Commissioners; (e) the fact that a standard workmen’s compensation policy was in effect and that appellee had complied with the Act was alleged in the motion and supported by affidavit and certified copies. The court in granting the motion for summary judgment “sustained each and all of the reasons and grounds specified in the motion for summary judgment.”

Undisputed facts are: On July 26, 1963, Gulf States Utilities Company was a subscriber to the workmen’s compensation insurance law with insurance carried by Texas General Indemnity Company. This insurance policy has the stamp of approval of the Board of Insurance Commissioners dated April 6, 1948. The endorsement and plan of operation had been approved by the Casualty Insurance Commission of the State of Texas. Notices of injury and death of employees of a subscriber were given to the insurance carrier, which sets up and maintains reserves required by the insurance laws of the State of Texas. No adjustments are made to employers holding this type of policy and endorsement until after the losses have been ascertained and the proper reserve has been set up and maintained. The premiums paid were at the rate specified in the policy, which were rates fixed and approved by the State Board of Insurance. The foregoing was done in this case and under this policy.

“(1) Gulf States Utilities Company had duly filed with the Industrial Accident Board notice of having become a subscriber under the Act. Following the death of Joseph M. Lejeune, an employee of the Appellee, the following proceedings took place before the Industrial Accident Board of the State of Texas:
(a) Employer’s first report of injury was filed.
(b) Appellant, Alice J. Lejeune, through her attorneys, filed notice of fatal injury, claim for compensation, and statement of beneficiary and death certificate.
(c) Letters of guardianship were filed showing Appellant’s qualifications as guardian of the minor children.
(d) Report of initial payment of compensation was filed showing the compensation benefits were being paid.
(e) Appellant through her attorneys twice requested the Industrial Accident Board to set the cause for hearing and that an award be entered, and on October 11, 1963, the Industrial Accident Board of the State of Texas entered its final ruling, order and award, finding among other things, ‘On July 26, 1963, Gulf States Utilities Company was a subscriber to the workmen’s compensation insurance law with insurance carried by Texas General Indemnity Company. In their employ was Joseph M. Lejeuene, whose average weekly wage produced a compensation rate of $35.00 per week under the Act. On said date Joseph M. Lejeune suffered accidental injury in the course of this employment, resulting in his death.’ The Board further found and named the beneficiaries and ordered the Texas General Indemnity Company to pay the maximum compensation provided by law.”

Appellant sought and obtained this award of compensation, which has the effect of a final judgment, establishing that Gulf States Utilities Company was a subscriber to the Workmen’s Compensation Insurance Law with the insurance carried by Texas General Indemnity Company, and received and accepted the benefits thereof. Appellant cannot be heard to assert the contrary and attempt to recover actual damages on the ground that Gulf States Utili-ities Company was not a subscriber under the Act. Sheek v. Texas Co., 286 S.W. 336 (Tex.Civ.App., 1926, n. w. h.); Gomillion v. Union Bridge & Construction Co., 5 Cir., 100 F.2d 937; Texas Employers’ Ins. Ass’n v. Price, 300 S.W. 667 (Tex.Civ.App. 1927) application for writ dismissed, 117 Tex. 173, 300 S.W. 672 (1927); Constitution Indemnity Co. v. Shytles, 47 F.2d 441 (U.S. Circuit Court, 5th Circuit, 1931). Such cases hold that a common law damage suit for actual damages cannot be maintained against the employer in a case where compensation has been claimed, awarded and collected from the compensation carrier. An award of the Industrial Accident Board has the same force and effect as a judgment and is binding and conclusive on the parties. Middlebrook v. Texas Indemnity Ins. Co., 112 S.W.2d 311, err. dis., 131 Tex. 163, 114 S.W.2d 226; Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149.

There was a compensation policy in force in standard and approved form with notice of becoming a subscriber duly filed with the Industrial Accident Board as required by Articles 8306 § 3c and 8308 § 20, Vernon’s Ann.Civ.St. The Workmen’s Compensation Law provides that employees of a subscriber have no right of action at common law for actual damages. Art. '8306 §§ 3, 3a, V.A.C.S. Whether the premiums were paid or the manner in which paid was immaterial iriso far as appellant is concerned. There was a compensation policy in force. Appellant invoked the jurisdiction of the Industrial Accident Board, obtained an award and has accepted the payments awarded.

The second proposition appellee relied upon in its motion for summary judgment was that in filing claim for compensation with the Industrial Accident Board and pursuing the same to a final ruling, order and award and accepting the compensation payments by virtue of such award, appellant was estopped to question the validity of the compensation policy. The third proposition relied on by appellee in its motion for summary judgment was that appellant having filed notice of injury and claim for com-pensation and pursued the same to final judgment and having received, collected and retained the benefits thereof, thereby made a final and binding election to proceed under the Workmen’s Compensation Act of the State of Texas, and waived all claims for actual damages at common law. Art. 8306, §§ 3a and 3b; 22 Tex.Juris.2d, p. 674, ¶ 11; 34 Tex.Juris.2d, p. 480, ¶ 489; Hill v. Preston, 119 Tex. 522, 34 S.W.2d 780 (1931); Empire Gas & Fuel Co. v. Albright, 126 Tex. 485, 87 S.W.2d 1092 (1935); Daniel v. Goesl, 161 Tex. 490, 341 S.W.2d 892 (S.Ct.1960); Mueller v. Banks, 332 S.W.2d 783 (Tex.Civ.App.1960).

Under point of error No. 1 appellant states:

“We are here confronted with a situation in which the Texas General Indemnity Company, which has a permit to do business in the State of Texas, issued a Contract to the appellee, Gulf States Utilities Company, which purports to be a Workmen’s Compensation Insurance Contract, and this Contract was issued on the regularly form approved by the Texas Insurance Commission and having attached thereto what purports to be an Endorsement called an Assessment and Participation Endorsement, said Endorsement was also approved by the Texas Insurance Commission.”

Further, appellant states: “The appellant does not contend that a Participation and Assessment Endorsement . placed on a Workmen’s Compensation Insurance Contract is in derogation of the law, * * Thus, appellant concedes the validity of the policy and the endorsement. The validity of the policy itself is not affected by the endorsement authorizing the 11% to be paid Texas General Indemnity Insurance Company for it is of no concern of the appellant what premiums were paid or how they were paid. Appellee and the insurance company necessarily had to agree as to the percent of the annual premium referred to in the approved endorsement form. Appel-lee was not a self-insurer. Such percentage was paid by appellee to the insurer. Appellant then asserts that the method of handling claims and the general procedure “is in derogation of law”, but fails to state what law forbids an insurance company from handling claims by such method as it chooses. There is none.

Second. Appellant contends that the contract created no obligation on the part of Texas General Indemnity Company to do anything. The award of the Industrial Accident Board is a final, binding and enforceable award by which appellant has, in fact, created an obligation on the part of Texas General Indemnity Company. This is contrary to the position of appellant filing a claim and obtaining a final award of the Industrial Accident Board obligating Texas General Indemnity Company to pay compensation. Appellant cites the case of Standard Acc. Ins. Co. v. Barron, 47 S.W.2d 380, err. ref’d (Tex.Civ.App. Jan. 6, 1932), 122 Tex. 179, 53 S.W.2d 769 (Oct. 26, 1932). In that case the court said:

“Contracts made in obedience to or in attempted compliance with the statute must be construed liberally in favor of employees as its beneficiaries, and applied in such manner as will more nearly and certainly accomplish the full purpose of the act and uphold the wholesome policy inducing the enactment. The provisions of the act will be read into such contracts by implication when not expressly adopted as a part of the agreement. In this case the provisions of the act were expressly adopted into the contract. If any part of the contract is in derogation of the law, or seeks to restrict the operation of the law, it should be nullified by the courts.”

The insurance policy involved in this case is not in derogation of and does not tend to restrict the operation of the Workmen’s Compensation Law. On the contrary, appellee and appellant each have construed this insurance contract as written as made in compliance with the statute in favor of the employee as its beneficiary to accomplish the full purpose of the Workmen’s Compensation Act. The policy complies with the provisions of the Act, endorsements included as part of the policy. The summary judgment was properly rendered for each reason asserted in appellee’s motion therefor. Further, appellant has failed to assign error or brief the independent grounds upon which the court granted summary judgment for which reason the summary judgment should be and is sustained. City of Deer Park v. State, 275 S.W.2d 77 (S.Ct.1954); Rule 418, Texas Rules of Civil Procedure. Further, the point of error No. 1 is too general to be considered. Wyche v. Noah, 288 S.W.2d 866 (Tex.Civ.App.1956) wr. ref., n. r. e. Appellant’s point of error No. 1 is overruled.

EXEMPLARY DAMAGES

Appellant’s second and last point of error is:

“The error of the Court in granting an instructed verdict, holding that there was no evidence of probative force to raise the issue that appellee or any employee of appellee, classified as a supervisory employee or vice principal, was guilty of any gross negligence.”

Appellee relied upon the following reasons in its motion for instructed verdict:

“I. There is no evidence of probative force to raise the issue that Defendant was guilty of any gross negligence on the occasion in question.
II. There is no evidence of probative force to raise the issue that any employee of Defendant classified as a supervisory employee or vice-principal of this defendant was guilty of any gross negligence.
III. There is no evidence of probative force to raise the issue that any supervisory employee was guilty of any act of gross negligence which was the proximate cause of the accident in question.
IV. There is no evidence of probative force to raise the issue that this Defendant through any of its vice-principals or supervisory employees was guilty of any wanton or willful act so as to raise an issue justifying the recovery of exemplary damages.
V. Under the undisputed evidence, the deceased voluntarily assumed the risk of injury working under the; circumstances shown by the evidence in this case.”

This motion was granted by the court and the jury was charged to return a verdict against the plaintiff and in favor of the defendant Gulf States Utilities Company, which verdict was returned by the jury and judgment entered accordingly.

Appellant tried this case upon the allegation that certain named employees were vice-principals, for whose acts appel-lee could be held liable for exemplary damages. In such petition appellant named A. C. Handley, G. K. Phillips, K. D. Sis-trunk, F. M. Peveto, L. P. Allen, Earl White and Hugh Beaumont as being guilty of gross negligence and vice-principals of the appellee. There was no proof that any of these employees were in fact vice-principals. None of these men had authority to employ or discharge employees. In determining that a man is a vice-principal it must be proved he had authority to hire and fire. In the absence of such authority, the employee does not fall within the category of vice-principal, for whose gross negligence, if any exists, the employer might be held responsible. Magnolia Petroleum Co. v. Studdard, 83 S.W.2d 1047 (Tex.Civ.App.1935, n. w. h.); H. B. Zachry Co. v. Fullilove, 177 S.W.2d 980 (Tex.Civ.App.1943, wr. dis., w. o. m.) ; Waring v. Harris, 221 S.W.2d 345 (Tex.Civ.App.1949, wr. ref.); Magnolia Petroleum Co. v. Booth, 105 S.W.2d 356 (Tex.Civ.App.1937, wr. ref.).

As to other employees of Gulf States Utilities Company who were named in the petition of appellant and charged with gross negligence there was no evidence as to their duties or authority or that they participated in any of the events leading up to the fatal accident. There is no evidence that they were vice-principals or negligent in any way. Appellant has not designated any evidence that would raise an issue either that any of the employees he has charged with gross negligence were guilty of gross negligence or that they were vice-principals.

Appellee in a counterpoint urges that:

“Appellant having failed to establish that the employees alleged to have been guilty of gross negligence were vice-principals for whose acts Appellee could be held liable for exemplary damages, the Court properly granted Appellee’s motion for instructed verdict.”

Appellee’s authorities thereunder are: Magnolia Petroleum Co. v. Studdard, supra; H. B. Zachry Co. v. Fullilove, supra; Waring v. Harris, supra; Magnolia Petroleum Co. v. Booth, supra.

By such counterpoint it is the contention of appellee that appellant failed to prove that any of the employees charged with gross negligence were in fact vice-principals so as to render appellee liable for exemplary damages. Appellant’s point of error does not attack the action of the trial court in sustaining this ground of appel-lee’s as set forth in its motion for directed verdict. Thereby, appellant waived any point of error on this ground and the judgment, for such reason alone, must be affirmed.

The “safe place to work” doctrine is not involved in this case. There is no pleading of this doctrine. Proof of gross negligence must be affirmative and not negative. Sheffield Division, Armco Steel Corporation v. Jones, 376 S.W.2d 825 (S.Ct.1964); J. S. Abercrombie Co. v. Scott, 267 S.W.2d 206 (Tex.Civ.App.1954, wr. ref., n. r. e.). Appellant has not pointed out any specific affirmative act committed by any of those who were charged with being guilty of gross negligence, namely: Handley, Sistrunk, Peveto, Phillips, Allen, White or Beaumont. Appellant in its petition charged each of them with various acts allegedly constituting gross negligence but appellant’s brief does not set forth any testimony or make any contention that there was evidence to sustain any of these specific allegations. Appellant limits its argument, only contending there was evidence to raise an issue that appellee was guilty of gross negligence in failing to furnish Lejeune with a safe place to work. In order for appellant to have recovered it had the burden of proving that the party charged with gross negligence was a vice-principal; that the person so charged was guilty of gross negligence and that the act of gross negligence on the part of the party so charged was a proximate cause. There is no evidence to establish any one of these essential elements, for which reason the motion for instructed verdict was properly granted.

The evidence as to the existence of negligence is stated below:

On the morning of the accident there was a lightning storm with many high voltage lines down, requiring repair work at various places. This line was at Nederland Avenue and 23rd St. and down. All witnesses thought this' line was fed from Line 98, when in fact it was fed from Line 102 from the Crowder Substation. On Line 98 the switch was open with all men working, thinking the power came through that switch which was nearby, between 27th and 23rd St. They had been familiar with Line 98 in previous work in the area and did not know a change had been made so that the line in question was fed from the Crowder Substation No. 102, and not from 98. The breaker on 98 was checked and was open, which meant that no electricity was going to the line on the ground in the minds of all involved. Phillips and Sis-trunk checked and rechecked this breaker. Peveto testified that the switch was checked and the line was dead. He handled the line himself and it was dead. He helped to pull and straighten the wire. This he would not have done, as he so testified, if he had not been certain in his own mind that it fed out of 98 where it was open. There was no doubt in his mind but that it was safe to work on it. With the information he had from previous work on this line, he felt it was safe to work on that line in the manner in which he did and also to allow his men to work on the line. The open breaker was actually seen by Handley, Sistrunk, Peveto and Phillips. Each testified they thought the line which was down and on which the work was being performed fed from 98. They did not know it had been changed to feed from 102 at a different substation. Thinking the line was completely safe to work upon, after taking the precaution of observing the breaker and checking with the others who saw it, they saw no need to take other or additional precautions. After Phillips and Sistrunk left the area where Peveto and others were engaged in repairing the line, they went to the Crowder Substation where they found switches open on lines 102 and 103. When the switch was closed on line 102 they had no knowledge that this would affect the line on which Lejeune was working, resulting in his electrocution. There is no “conscious indifference” on the part of any witness in this record. Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709 (1943) defines gross negligence as:

“[T]hat entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.” See Cutler v. Gulf States Utilities Co., 361 S.W.2d 221 (Tex.Civ.App.1962, wr. ref., n. r. e.) and cases cited on page 223.

In the instant case there is no evidence meeting the requirement that there be an entire want of care on the part of appellee so as to raise the belief that the acts complained of were the result of a conscious indifference to the rights or welfare of Mr. Lejeune. There is no evidence or indication of wilfulness, wantonness or malice on the part of appellee. There is no evidence, therefore, that appellee was guilty of gross negligence. Jones v. Ross, 141 Tex. 415, 173 S.W.2d 1022 (1943); Missouri Pacific Railroad Co. v. Rose, 380 S.W.2d 41 (Tex.Civ.App.1964, wr. ref., n. r. e.) ; Morton Salt Co. v. Wells, 35 S.W.2d 454 (Tex.Civ.App.) 123 Tex. 151, 70 S.W.2d 409; Nichols v. Texas Electric Service Co., 206 S.W.2d 860 (Tex.Civ.App.1947, wr. ref., n. r. e.); Galveston, H. & S. A. Ry. Co. v Waldo, 119 Tex. 377, 29 S.W.2d 323 (1930); 38 Tex.Juris.2d, ¶ 850, p. 207.

Appellant’s point of error No. 2 is overruled.

Judgment of trial court affirmed.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    Robert Charles ALLEN, Appellant, v. The STATE of Texas et al., Appellees.
    No. 14930.
    Court of Civil Appeals of Texas. Houston.
    Dec. 15, 1966.
    Rehearing Denied Jan. 5, 1967.

      R. E. McDaniel, Winnie, for appellant.
    Joe Resweber, County Atty., Bruce D. Mosier, Asst. County Atty., Houston, for appellees.
   WERLEIN, Justice.

Appellant, Robert Charles Allen, a minor, by next friend, brought this suit against the State of Texas, the Department of Public Safety of the State of Texas, Homer Garrison, Jr., the Director of the Department of Public Safety of the State of Texas, in his official capacity as such Director, and M. M. Brown, in his official capacity as Justice of the Peace of Harris County, Texas, seeking a declaratory judgment that Article 6687b, Vernon’s Annotated Texas Statutes, is unconstitutional and void, that the orders of the Texas Department of Public Safety with respect to the suspension of appellant’s driving license are void, that appellant is entitled to have his driver’s license renewed without another examination, and that the defendants be enjoined from proceeding against appellant in the matter pending before the said M. M. Brown in the Justice Court presided over by him, except to dismiss the same.

Appellees, the State of Texas, the Texas Department of Public Safety and Homer Garrison, Jr., in his official capacity, filed a motion to dismiss appellant’s suit on the ground that the suit was filed without the consent of the State of Texas which claimed sovereign immunity, and also because there was no justiciable controversy between the parties. The trial court, after notice to appellant and a hearing at which, all parties were present, entered judgment severing appellant’s cause of action as to the said M. M. Brown who made no appearance though duly cited, and dismissed the cause of action against said appellees. The court also on the same day in the severed cause entered judgment by default against the defendant, M. M. Brown, enjoining him from proceeding further with the administrative hearing pending before him, against appellant, wherein an affirmative finding was sought to be had and obtained against said Robert Charles Allen, except to dismiss the same.

Appellant asserts that the trial court erred in dismissing the suit as to said appellees for want of jurisdiction based on the doctrine of sovereign immunity, and also in dismissing the suit on the theory that no justiciable controversy existed between appellant and appellees. In his cross-points appellant contends that the trial court erred in not holding Article 6687b, V.A.T.S., unconstitutional and void under the Constitution of the State of Texas and the Constitution of the United States.

Appellees assert that the court properly dismissed appellant’s cause of action under the doctrine of sovereign immunity. In Department of Public Safety v. Great Southwest Warehouses, Inc., 352 S.W.2d 493, writ ref., n. r. e., it was held that a suit against a State agency or department is a suit against the state where the agency is exercising only governmental functions (citing authorities) and that the state may not be sued without its consent which may only be obtained by legislative permission. Hosner v. DeYoung, 1 Tex. 764; State v. Isbell, 127 Tex. 399, 94 S.W.2d 423. The rule of state immunity from suit without its consent applies to suits under the Uniform Declaratory Judgments Act, Article 2524-1, V.A.T.S. See W. D. Haden Co. v. Dodgen, Tex.Sup.1958, 308 S.W.2d 838 and authorities there cited.

The Department of Public Safety and its director are charged with the administration and enforcement of the Texas Motor Carrier Act. If they were properly exercising their duties and functions in behalf of the State in the administration and enforcement of the Act, and acting within the scope of authority lawfully conferred upon them, they had the right in the defense of the case to rely upon sovereign immunity since the suit was brought without the State’s consent. On the other hand, if they acted illegally, wrongfully or in a manner not authorized by law with respect to appellant and his legal rights, they would not be entitled to protection under the doctrine of sovereign immunity since the suit would not be one against the State. Cobb v. Harrington, Tex.Sup.1945, 190 S.W.2d 709; Forbes v. Texas Department of Public Safety, Tex.Civ.App., 335 S.W.2d 439; Texas Highway Com’n v. Texas Ass’n of Steel Imp., Inc., Tex.Sup.1963, 372 S.W.2d 525.

This presents the problem of determining from the allegations in appellant’s pleading since his suit was dismissed, whether or not said appellees were properly exercising the functions of sovereignty in connection with the matters complained of by appellant.- A careful reading of appellant’s petition shows that appellant’s suit is based upon two propositions, first, that the acts of which he complains were wrongful and illegal because his license had never been suspended, and second, that all of the acts performed by appellees were illegal because in violation of the Constitution of the State of Texas and the Constitution of the United States.

Insofar as we can determine from reading appellant’s petition contained- in the transcript filed in this case (there is no statement of facts), the Department of Public Safety, pursuant to action taken by the Judge of the Justice of the Peace Court, Precinct 3, of Harris County, Texas, on May 3, 1965, in which an affirmative finding was rendered in favor of the Department, suspended appellant’s driving license on May 13, 1965 for a period of twelve months effective May 20, 1965. On May 19, 1965 appellant addressed a letter to the County Judge of Harris County as an administrative officer, enclosing an appeal petition which appellant alleged was received by the County Judge or his executive assistant on May 20, 1965. The appeal petition clearly shows that it was an attempt to appeal from the administrative order of the Justice of the Peace of Precinct 3 of Harris County, Texas, under Section 22(a) of Article 6687b, V.A.T.S. In such petition appellant prays that the County Judge of Harris County acting as an administrative officer, hear his appeal, and that upon final hearing appellee be denied an affirmative finding. The appeal petition was returned to appellant by the County Judge’s Executive Assistant because appellant failed to make a cost deposit. In view of our holding in this case, it is not necessary to decide whether or not such officer acted wrongfully.

Prior to the receipt by the County Judge of the appeal petition from said administrative order of the Justice of the Peace, the Department of Public Safety had suspended appellant’s driving license, and such suspension was effective since it became effective at 12:01 A.M., May 20, 1965. Appellant had elected to appeal from the administrative order of the Justice of the Peace but his appeal was taken too late from said administrative order since the suspension was already effective. Appellant did not appeal either to the County Court or the County Court at Law from the order of the Department suspending his license, as he could have done under Section 22(c) of Article 6687b, V.A.T.S. Hence the suspension of appellant’s license continued in effect and was not stayed in any manner by an appeal. In Texas Department of Public Safety v. King, Tex.Sup.1963, 366 S.W.2d 215, the Court said:

“We construe Section 22(c) to afford a licensee an election between the appeal provisions of Section 22(a) and Section 22(c). He may appeal the affirmative finding of guilt by the hearing officer to the county court under Section 22(a) which does not require or contemplate an actual suspension of the license by the Department prior, or as a prerequisite, to the appeal.
“If the license is suspended on the basis of suspension reasons 3, 4, 5, 8, or 9 of Section 22(b), the appeal provisions of Section 22(c) are also available to him. In such cases, he can await the order of the Department suspending his license on the basis of the prior affirmative finding of the hearing officer and, if unwilling to accept the decision of the Department, bring an appeal suit pursuant to Section 22(c).”

In the instant case appellant elected .to appeal under the provisions of Section 22(a) and not Section 22(c), but his appeal was ineffective since prior to the perfection thereof his license was suspended. It is our view that his license was properly suspended and continued to be suspended, so that the acts complained of by him based upon his claim that his license was not suspended were properly performed by the Department and its Director in the administration and enforcement of the Act. See also Williams v. Texas Department of Public Safety, Tex.Civ.App., 371 S.W.2d 747.

The 1965 amendment to Article 1, Sec. 1, of the Act, which became effective August 31, 1965, adds paragraph (r), reading: “ ‘The suspension or revocation of a license.’ Shall be considered as a penalty and subject to executive clemency as any other ■fine or punishment.” It is appellant’s contention that subsequent to this amendment the suspension of a driver’s license is a penalty, and that under the provisions of Article 5, Section 8, of the Constitution of Texas, Vernon’s Ann.St., exclusive jurisdiction in all suits in behalf of the State to recover penalties, forfeitures and escheats, is in the District Courts of Texas. From this appellant argues that Article 6687b, V.A.T.S., is void and unconstitutional since it conflicts with said Article of the State Constitution, and that hence all orders issued by any of the appellees are also void and of no force and effect. We do not agree with appellant.

It seems clear that in stating the suspension or revocation of a license shall be considered as a penalty, it was the intention of the Legislature to subject such suspension or revocation to executive clemency, thus permitting a pardon or remission of the fine or punishment. In suspending appellant’s driving license the State was not undertaking to recover a penalty, forfeiture or escheat within the purview of Article 5, Sec. 8, of the Texas Constitution. In Baldacchi v. Goodlet, Tex.Civ.App., 145 S.W. 325, writ den., it was held that a license to sell intoxicating liquor is a mere permit and not a vested property or contract right, and that the State may in the exercise of its police power, revoke it. The Court further held that a proceeding authorized by the Acts of the 31st Legislature for the revocation by the Comptroller of Public Accounts of liquor licenses for violation of the law by liquor dealers was not a suit by the State for forfeiture or penalty within Article 5, Sec. 8, of the Constitution of the State of Texas conferring on the District Court exclusive jurisdiction of such cases. The law is well settled that a license to operate a motor vehicle upon the public highways is not embraced within the term “civil rights” and is not a contract or property right in any legal or constitutional sense but rather a mere license or privilege. Department of Public Safety v. Robertson, Tex.Civ.App., 203 S.W.2d 950; 7 Amer.Jur.2d, p. 668, Sec. 97.

Appellant also prays that the court order the Texas Department of Public Safety to renew his license without another examination. Section 10 of Article 6687b provides, among other things, that the Director of the Department of Public Safety shall have the authority to cause to be reexamined a licensee in any case in which in his judgment the licensee is incapable of operating a motor vehicle. Since there is no allegation that' the Director in requiring a re-examination of appellant, was acting in excess of the authority conferred upon him by law, his action in such connection was that of the State.

Judgment affirmed.


author: DUNAGAN, Justice.

text:
    O. G. DYER, Appellant, v. METALLIC BUILDING COMPANY, Appellee.
    No. 250.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 15, 1966.
    See also, Tex.Civ.App., 405 S.W.2d 119.

      David B. Kultgen, Beard & Kultgen, Waco, for appellant.
    Robert A. Hall, Baker, Botts, Shepherd & Coates, Houston, for appellee.
   DUNAGAN, Justice.

This is a suit on a promissory note. Prior to January 21, 1963, Robert E. Lang-ston did business as Lanco Steel Building Company, controlled a corporation known as Langston Builders, Inc., and was a franchised dealer in Metallic steel buildings in the Waco, Texas area. Langston purchased steel building materials from Metallic Building Company, hereinafter called Metallic, and erected steel buildings for his various customers. In the latter part of 1962, Langston became indebted to Metallic for approximately Thirty Thousand and No/100 ($30,000.00) Dollars in connection with the steel building materials which he had purchased from Metallic but had not paid for, and which materials he had used in the construction of his customers’ buildings. Metallic began to press Langston for payment of the indebtedness and advised him that if he did not pay his indebtedness, Metallic would assert his Mechanic’s & Materialman’s Lien rights on the buildings which he had erected, would cancel Langston’s franchise and would take any other legal steps available to Metallic to collect the indebtedness from Langston.

On January 21 and 22, 1963, O. G. Dyer, Langston and James H. Fendley met with Metallic representatives, William Schnee-berg, James Clift, Robert Sowell and Gordon Thompson at Metallic offices in Houston, Texas. Dyer, Langston and Fendley stated at the meeting in Houston that they intended to form a Texas corporation with offices in Waco, Texas, for the purpose of building and selling steel buildings in the Waco, Texas area. Dyer, Fendley and Langston were to have ownership interest in the corporation. Metallic was not a party to the contract or agreement between Langston, Dyer and Fendley.

At the January 21 and 22, 1963, meeting in Houston, Langston, Fendley and Dyer requested that Metallic forbear for 90 days from filing any lawsuits or asserting any Mechanic’s & Materialman’s Liens against the buildings which Langston had erected. Langston, Fendley and Dyer agreed to sign a promissory note payable to Metallic in the amount of Twenty-Two Thousand One Hundred Twenty-Five and 24/100 ($22,-125.24) Dollars in order to induce Metallic to forbear from filing suit against Lang-ston or asserting its Mechanic’s & Ma-terialman’s Lien rights for a 90-day period. It was also agreed that Langston would assign to Metallic a debt owed to him by one of his customers to secure the balance of the said indebtedness he owed to Metal-lie. Langston, Fendley and Dyer also extracted from Metallic an agreement to issue a Metallic franchise to the corporation which was to be formed by Langston, Fendley and Dyer, said franchise to be issued after Metallic was furnished with (a) evidence that the corporation had been formed and was a going concern; (b) a copy of the articles of incorporation; (c) a description of the corporate structure and (d) financial background information as to Dyer and Fendley. Dyer, Langston and Fendley did not furnish Metallic with any of the items set out above and, therefore, Metallic was never required to issue the franchise. Langston, Fendley and Dyer signed the promissory note on January 22, 1963.

Metallic instituted this suit against Lang-ston Builders, Inc., Robert E. Langston, individually and d/b/a Lanco Steel Building Company, O. G. Dyer, and James H. Fendley, all of whom were makers of the promissory note.

Although citation was duly served on Langston Builders, Inc., and on Robert E. Langston, these two defendants did not enter an appearance. Dyer and Fendley entered an appearance asserting failure and in the alternative partial failure of consideration. After a trial to the court without a jury, judgment was entered in favor ■of Metallic against the five defendants. Only Dyer appealed from the judgment. The record does not contain any findings of fact or conclusions of law, but does include a statement of facts.

Appellant has brought forward two points of error." However, the second point is now moot. The first point reads: “The trial court erred in holding Dyer liable on the note.”

The consideration flowing from Metallic to Langston, Fendley and Dyer was:

1.Metallic’s promise to forbear from filing a lawsuit against Langston for a 90-day period.

2. Metallic’s promise to forbear from asserting Mechanic’s & Materialman’s Liens against the buildings which Langston had constructed with materials purchased from Metallic, but for which he had not paid.

3. Metallic’s promise to issue a franchise to the corporation which was to be formed once Metallic was furnished with evidence that the corporation had been formed and was a going concern, a copy of-the articles of incorporation, a description of the corporate structure and financial background information on Dyer and Fendley.

It is undisputed that Metallic neither filed a lawsuit against Langston nor asserted its Mechanic’s & Materialman’s Lien rights during the 90-day period. The note was due and payable on April 22, 1963. Prior to that time, Dyer, Fendley and Langston had a disagreement and while a charter was issued to the contemplated corporation, the corporation never became active because Langston refused to have any further association with Dyer and Fendley in the steel building business. The note was not paid.

We think the evidence in this case clearly shows that the promissory note involved herein was supported by consideration.

The law in Texas is well settled that an agreement to forbear to prosecute or to enforce a claim in law or equity is sufficient consideration to support a promissory note of the debtor, or of a third person. 9 Tex.Jur.2d, page 58, Sec. 45; Von Brandenstein v. Ebensberger, 71 Tex. 267, 9 S.W. 153; Brown v. Hart, 43 S.W.2d 274, (Tex.Civ.App., Amarillo) 1931, writ ref.; Edwards v. Hatch, 106 S.W.2d 741, (Tex.Civ.App., Waco) 1937, n. w. h.

Under the provisions of Article 5453, Vernon’s Ann.Civ.St. dealing with Mechanic’s & Materialman’s claims, it is clear that the appellee forfeited every Mechanic’s & Materialman’s Lien right it had by virtue of agreeing to forbear for 90 days from asserting such liens. April 22, 1963, the due date on the note, would have been beyond the 90-day period prescribed in Article 5453 for filing the required affidavit with the County Clerk to secure the lien right.

One of the buildings on which the ap-pellee agreed to forbear asserting its Mechanic’s & Materialman’s Lien was a building owned by appellant Dyer and Fendley. By inducing the appellee to forbear for'90 days from asserting its Mechanic’s & Mate-rialman’s Lien against the building, the appellant Dyer precluded the appellee from ever asserting its lien right.

Furthermore, appellant Dyer had the burden of proof on the alleged failure of consideration and he failed to discharge that burden. Written contracts are presumed to be supported by sufficient consideration. 23 Tex.Jur.2d, page 126, Sec. 83; City of San Antonio v. Lane, 32 Tex. 405, 416; Fender v. Farr, 262 S.W.2d 539, (Tex.Civ.App., Texarkana) 1953, n. w. h.

It is also the settled law in this state that the maker of a promissory note who asserts a failure or want of consideration has the burden of proof as to that defense. 9 Tex.Jur.2d, page 313, Sec. 285.

In Carter v. Richardson, 315 S.W.2d 378, (Tex.Civ.App., Waco) 1958, writ ref., n. r. e., at page 380, the court said:

“Moreover, since this suit involves an action on promissory notes executed and delivered by appellant to appellee and payable to him in Texas (Art. 5933, Vernon’s Ann.Civ.St), the action is controlled by our Negotiable Instruments Act; and since appellant interposed a plea of failure of consideration, and, in the alternative, a partial consideration, Sections 24 and 25 of Art. 5933, V.A.C.S. are applicable here.
“Section 24 provides: ‘Every negotiable instrument is deemed prima facie to have been issued for a valuable con-
sideration; and every person whose signature appears thereon to have become a party thereto for value.’ Section 25 provides: ‘Value is any consideration sufficient to support a simple contract. * * * >
“Since the notes sued upon are negotiable instruments, they imply a consideration under the terms of Art. 5933 aforesaid. Moreover, since appellant sought to defeat these notes by a plea of total or partial failure of consideration, the burden rested upon him to prove the absence of all of the elements which in law constitute a valid consideration. See statement of the rule in Shaw v. McShane, Tex.Com.App., 50 S.W.2d 278; see also 6 Tex.Dig., Bills & Notes See also Kliesing v. Del Barto, Tex.Civ.App., 282 S.W.2d 249 (n. r. e.). Our Supreme Court has not seen fit to change the rule there stated”.” See also McAlpin v. Finch, 18 Tex. 831.

Moreover, we think the appellant is barred from denying liability under the doctrine of promissory estoppel.

As stated in 22 Tex.Jur.2d, page 660, Section 1:

“The broad concept of estoppel is that one who by his speech or conduct has induced another to act in a particular manner ought not to be permitted to adopt an inconsistent position, attitude, or course of conduct and thereby cause loss or injury to the other. * * * ”

See also Union Cent. Life Ins. Co. v. Austin, 52 S.W.2d 536, (Tex.Civ.App., El Paso) 1932, writ ref.; Rancher v. Franks, 269 S.W.2d 926, 929, (Tex.Civ.App., Fort Worth) 1954, n. w. h.

Based on the defendant’s promise to pay, the appellee, through its forbearance, waived its Mechanic’s & Materialman’s Lien rights and agreed not to file a lawsuit against Langston. The appellee relied on the defendant’s promise to pay and that reliance was clearly detrimental to the appel-lee in that the 90-day forbearance resulted in the appellee waiving its lien rights and, therefore, appellant Dyer is estopped under the doctrine of promissory estoppel from claiming that he is not indebted to the ap-pellee because of the conduct which allegedly took place not between the appellee and Dyer, but between Dyer, Fendley and Langston.

Appellant’s contentions advanced under his first point are overruled.

Judgment affirmed.


author: NORTHCUTT, Justice.

text:
    CENTRAL SURETY & INSURANCE CORPORATION, Appellant, v. W. E. JORDAN, Appellee.
    No. 7666.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 19, 1966.

      Key, Carr & Clark, Lubbock, for appellant.
    Splawn & Maner, Lubbock, for appellee.
   NORTHCUTT, Justice.

This is a workmen’s compensation case tried before a jury resulting in a judgment for total and permanent disability benefits at the maximum compensation rates plus medical and hospital bills. The jury found that the plaintiff, W. E. Jordan, was injured in the course and scope of his employment with Jordan & Douglas Implement Company; that he was totally and permanently disabled; that he had not worked 210 days in the year immediately preceding the date of the injury; that there was another employee of the same class as the plaintiff who had worked 210 days in the same employment and that such employee’s average weekly wage was $65.00 and that it would work a manifest injustice and hardship upon the plaintiff if the benefits were paid out in weekly installments rather than a lump sum. From that judgment the defendant, Central Surety & Insurance Corporation, presented this appeal and will hereafter be referred to as appellant. W. E. Jordan will hereafter be referred to as ap-pellee.

By appellant’s first point of error it is contended the trial court erred in overruling its motion for judgment non obstante veredicto which motion requested the trial court to disregard the jury’s findings to Special Issues Nos. 16, 18 and 19- and to hold as a matter of law that the average weekly wage of the plaintiff was $25.81 per week.

The remaining points of error contend there was no evidence or in the alternative insufficient evidence to support the jury’s findings to Special Issues Nos. 16, 18 and 19. In answer to Special Issue 16 the jury found W. E. Jordan did not work for his employer or other employers for at least 210 days of the year immediately preceding the date of his injury. In answer to Special Issue No. 18 the jury found there was another employee of the same class as W. E. Jordan who worked for at least 210 days of the year immediately preceding the date of appellee’s injury for the same or another employer in the same or similar employment in the same or similar neighboring place and in answer to Special Issue 19 that the average weekly wage earned by such other employee in the year immediately preceding the injury of W. E. Jordan was $65.00.

As to the contention of appellant that there was no evidence or in the alternative insufficient evidence to support the jury’s finding to Special Issues Nos. 16, 18 and 19, we will overrule that contention. It is to be noticed here that appellant contends there is no evidence or in the alternative insufficient evidence to support the jury’s findings in answer to Issue No. 16 but appellant requested a special issue asking the jury to pass upon that same question and did not object to the submission of Special Issue No. 18. The employer of W. E. Jordan testified he knew that W. E. Jordan did not work 210 days of that year immediately preceding the date of Jordan’s injury. He also testified there was another man by the name of Thomas DeLeon working for him and doing the same type of work that W. E. Jordan was doing and that DeLeon worked more than 210 days during that twelve months period preceding the date of Jordan’s injury and that his average weekly wage was $68.37. There was other evidence sustaining the findings of the jury on these issues and we believe there was sufficient evidence of probative force to support the jury’s findings.

The real issue here involved is whether the trial court erred in permitting appellee to recover judgment for average weekly wages as provided under Subsection (2) of Article 8309, Vernon’s Ann.Tex.St., when his actual weekly wage was shown to be $25.81. The appellee’s weekly wage while he was working was $25.81 and he was paid on a weekly basis, the judgment here granting him a higher weekly wage than he received when working. This is not a common law action based upon actual damages proven. The rule as provided in Article 8309, V.A.T.S., determines the manner in which the parties are permitted to have the weekly wage determined. If W. E. Jordan had worked in the employment in which he was working at the time of the injury, whether for the same employer or not, and had worked for at least 210 days of the year immediately preceding the injury, his wage and salary would have been determined as provided in Subdivision 1, Subsection (2) of Article 8309, but since appellee did not work the 210 days as there provided his recovery must be based upon the average daily wage or salary which an employee of the same class working at least 210 days of such immediately preceding year in the same or in similar employment in the same or neighboring place as the second method provides. Under this record Thomas De-Leon was doing the same class of work as appellee and was working for the same employer at the same time and location.

Under Article 8309, V.A.T.S., the workmen’s compensation law, three methods are provided for in establishing the wage rate to be applied. The first method is determined by finding whether the injured party worked in the employment in which he was working at the time of the injury whether for the same employer or not for at least 210 days of the year immediately preceding the injury. If the employee did not work the 210 days as provided by the first method then his second method of procedure would be based upon the wage or salary which an employee of the same class working at least 210 days of such immediately preceding year. The appellee presented his case upon the second method and secured a finding of the jury thereon. Under this record and the findings of the jury, appellee’s weekly wage rate could not be computed under Subdivision (1) but could under Subdivision (2) and the case was tried under Subdivision (2). It is stated in Indemnity Insurance Co. of North America v. Redic, 344 S.W.2d 936 (Tex.Civ.App.—Dallas, 1961, no writ) as follows:

“Probably no rule of law in workmen’s compensation cases is more firmly established than that which provides that the claimant has the burden of establishing his average weekly wage rate by one of the three methods provided for in Art. 8309, Paragraph 1, Subdivisions 1, 2 or 3, and in the order named, i. e., he must show that such cannot be computed under Subdivision 1 before he can resort to Subdivision 2, then, if the computation cannot be made under 1 or 2, he may resort to Subdivision 3. This rule was established early by the case of American Employers’ Ins. Co. v. Singleton, Tex.Com.App., 24 S.W.2d 26, and is the law today. Texas Employers’ Ins. Ass’n v. Ford, 153 Tex. 470, 271 S.W.2d 397.”

See also Truck Insurance Exchange v. Cartmill, 385 S.W.2d 277 (Tex.Civ.App.—Waco, 1964, writ ref’d, nre) where it is stated:

“Plaintiff had not worked for as much as 210 days during the year preceding his injury, so the Trial Court submitted issues as to whether another employee of the same class as plaintiff had worked 210 days in similar employment, and if so such other employee’s average daily wage. The jury found affirmatively as to another employee of the same class and found his average daily wage to be $20. The Trial Court computed its judgment on such basis. Defendant’s real complaint is that plaintiff did not earn but approximately $1000 the previous year. The burden was on defendant to show that plaintiff’s wages could not be computed under Sub-sections 1 or 2 before resort may be had to Sub-section 3, Art. 8309, V.A.T.S. Texas Employers’ Ins. Ass’n. v. Ford, 153 Tex. 470, 271 S.W.2d 397. Moreover, workmen’s compensation benefits are paid for disability rather than for actual earnings received. Federal Underwriters Exchange v. Rattler, CCA (n. r. e.), 192 S.W.2d 942; Traders & Gen. Ins. Co. v. Nored, CCA (n. r. e.) 341 S.W.2d 492.”

The workmen's compensation action nowhere provides that the injured employee may recover what his actual wages were but provides a method of determining what he is entitled to. The injured employee must present his wage rate under one of the three methods provided for regardless of what his actual wages might be.

Judgment of the trial court is affirmed.


author: PHILLIPS, Justice.

text:
    CITY OF DALLAS, Appellant, v. O. L. STEGER, Sr., et ux., Appellees.
    No. 11459.
    Court of Civil Appeals of Texas. Austin.
    Dec. 7, 1966.
    Rehearing Denied Jan. 4, 1967.
    N. Alex Bickley, City Atty., Lee E. Holt, Asst. City Atty., Dallas, W. H. Frank Barnes, Terrell, for appellant.
    J. Alex Blakeley, Dallas, Ralph M. Hall, Don R. Stodghill, Rockwall, for appellee.
   PHILLIPS, Justice.

This suit was brought in the County Court of Rockwall County, Texas by the City of Dallas for the purpose of condemning 10.71 acres of land out of a 112.6-acre tract of land in Rockwall County, Texas. In a jury trial, three issues were submitted covering the value of the land taken and the damages to the remainder. The effect of the answers was to award $175,427.25 for the 10.71 acres taken and damages.

We reverse the judgment of the trial court and remand the case.

Appellant City of Dallas is before us with thirteen points of error, however, inasmuch as we sustain its first two, we will not pass on the remaining eleven.

Appellant’s first two points are: the error of the trial court in commencing the trial of this case on December 6, 1965, and in receiving the verdict of the jury on December IS, 1965, as recited in the judgment of the court, because said dates are out of the term time of the court, said proceedings are null and void, and the trial court was without jurisdiction to render judgment thereon; the error of the trial court in rendering, entering and signing the judgment in this case on December 27, 1965, as recited therein, because said date is out of the term time of the court, and said judgment is therefore wholly null and void.

Under the Tex.Const. Art. V, Sec. 29, Vernon’s Ann. St., the County Commissioner’s Court has the power to establish, in its discretion, separate terms for the transaction of criminal business alone, in addition to four regular terms for both civil and criminal business required by the above cited constitutional provision. See Wilson v. State, 15 Tex.App. 150; Hughes v. Doyle, 91 Tex. 421, 44 S.W. 64 (1898); Henn v. City of Amarillo, 157 Tex. 129, 301 S.W.2d 71 (1957); Wells Fargo & Co. Express v. Mitchell, 176 S.W. 818 (Tex.Civ.App. Amarillo 1914, writ dism. w. o. m.); Daulton v. State, 154 Tex.Cr.R. 321, 227 S.W.2d 228 (1950).

The following is an order adopted by the Commissioner’s Court of Rockwall County on January 14, 1952:

“Came on and for consideration the fixing of the terms of the County Court. In accordance with the provisions of the Constitution, Article 5, Section 29, Vernon’s Texas Statutes Annotated, the Court, acting on the recommendation of the County Judge, moved that the four Regular terms of Court be continued as in the past, as follows: to begin on the first Monday in January, first Monday in
April, first Monday in July, and the first Monday in October, each of said terms to remain is session three weeks; in addition to said terms the Court specified that said County Court shall be open and in session for the purpose of receiving, entering and enforcing its judgments, orders and decrees on pleas of Guilty in Criminal matters, and cases coming before Court from the fourth Monday in January until the fourth Monday in March, both days inclusive; from the fourth Monday in April until the fourth Monday in June, both days inclusive; from the fourth Monday in July until the fourth Monday in September, both days inclusive; and from the fourth Monday in October until the fourth Monday in December, both days inclusive. The motion for approval of such was made by C. J. Thompson and seconded by B. F. Hartman, and the vote of the Court was as follows:
Yes No Not Voting:
B. F. Hartman
C. R. Terry None
Clyde Smith, Absent
C. J. Thompson
The motion was ordered carried by the County Judge.”

This cause proceeded to trial on December 6, and the judgment of the court was entered on December 27. Neither of these dates fall within the regular, or first four terms of the court commencing the first Monday in January, the first Monday in April, the first Monday in July, and the first Monday in October, each one continuing for three weeks. The case was tried during a criminal term of court and judgment was entered at a criminal term. Under these circumstances, the judgment is invalid and of no force and effect.

The judgment of the trial court is reversed and remanded.

Reversed and remanded.


author: STOCKARD, Commissioner.

text:
    Walter ISON, Mable Fitzgerald, Francis C. Ison, and Clyde Ison, and Walter Ison, Administrator of the Estate of Clarence W. Ison, Deceased, Appellants, v. Orville ISON, Eleanor Ison and Essie C. Ison, Respondents.
    No. 51957.
    Supreme Court of Missouri, Division No. 2.
    Jan. 9, 1967.

      John M. Belisle and Morran D. Harris, Osceola, for appellants.
    Poague, Brock & Wall, Barkley M. Brock, Julius F. Wall, Clinton, for respondents.
   STOCKARD, Commissioner.

In August 1964, Clarence W. Ison, a bachelor, died intestate at age 63. By Count I of the petition Walter Ison, administrator of his estate, brought suit against Orville Ison and Eleanor Ison to recover $18,500 alleged to belong to Clarence’s estate and to have been converted by Orville and Eleanor to their own use. By Count II of the petition Walter, and two other brothers and a sister of Clarence, sought to set aside a deed from Clarence to their mother. After trial before the court without a jury, judgment was rendered against the plaintiffs on all issues and they have appealed. However, there is no issue on this appeal as to Count II.

After living on and operating a farm in St. Clair County for many years, because of his failing eyesight, Clarence sold his farm and equipment in 1962, and with his widowed mother moved to a house he had purchased in Appleton City. Because of his blindness and the infirmities of his mother it was necessary that someone take them to purchase groceries and to the various places necessary to conduct their ordinary business affairs. This was usually done by Orville or his wife. None of the plaintiffs lived close by. Clarence was a diabetic, and in June 1964, he became seriously ill. On June 14 arrangements were made for his admission to a hospital. Clarence responded to treatment but entries on his hospital record for June 25 indicated that he appeared “despondent” and “confused.” However, entries for June 27, 28 and 29 indicated that he was “alert.” Dr. Jerry Feagan, a treating physician, stated that this period of confusion, and another episode occurring a few days earlier, were probably the result of a mild insulin reaction, and that such periods of confusion usually last four or five hours.

On June 29, Orville and his wife were at the hospital, and Clarence talked to them about getting his money which was then on deposit at the Citizens Bank of Appleton City “out on interest,” and he said that he wanted to talk to Mrs. Claude Elliston, a long time acquaintance who had previously assisted him with his tax returns. After Orville and his wife left the hospital they saw Mrs. Elliston and told her that Clarence wanted to talk to her, and the three of them then returned to Clarence’s hospital room. Clarence and Mrs. Elliston discussed “what would be the best way, and how to fix it so that he could have some income” from his money, and Clarence suggested the use of a savings account at the Citizens Bank. During the conversation Clarence asked about making a will, and Mrs. Elliston told him that he should “consider that because if there was a will made there would be probate costs.” Mrs. Ellis-ton and Orville and his wife went to the bank, apparently to inquire about the use of a savings account, and then they returned to Clarence’s room and brought with them Mrs. Freda Woods, the assistant cashier of the bank. Mrs. Woods told Clarence that the bank did not pay interest on savings accounts, and she suggested that he purchase United States Government bonds, series “H.” After a discussion, pursuant to Clarence’s instructions Mrs. Woods made a memorandum of the bonds he wanted to purchase. Mrs. Elliston testified that during the conversation Clarence said that he wanted Orville and his wife “to have more than the rest of them” because they had “done more than anyone else in the world for him.” Mrs. Woods testified that she explained to Clarence how the bonds could be made payable, and that he gave her the names of his brothers and his sister, and first instructed her to have a thousand dollar bond issued in his name and “POD” (which means “payable on death”) to each of his brothers and his sister except Orville. He then directed her to reduce the amount as to each brother to $500, but to leave the amount for his sister at $1,000. He then directed that “H” bonds be purchased in his name, “POD” to Orville, in the amount of $6,000, and “POD” to Orville’s wife in the' amount of $5,000. Mrs. Woods wrote a check in the amount of $13,500 payable to the Citizens Bank, which Clarence signed, and after she returned to the bank, “H” bonds were issued as directed.

During this visit by Mrs. Woods, she and Clarence discussed his bank account. Clarence’s mother had permission to write checks on his account, but according to Mrs. Elliston, Clarence said that it would be “a good idea” that Orville’s name be substituted for his mother’s name because “his mother’s mental condition was hardly safe.” Mrs. Woods testified that Clarence said “it was getting increasingly difficult for his mother to help with his affairs, * * * and he would like to have Orville’s name on the bank account.” She explained “how there was different ways,” and according to Mrs. Woods, “he wanted it to be a joint account.” Mrs. Woods had with her a card prepared by the Citizens Bank. On one side of the card were the words: “Authorized signature of,” and below that a blank line. On this line Mrs. Woods wrote: “Clarence Ison or Orville M. Ison.” Below this was the name of the bank, and below that in much smaller print was a statement concerning the responsibilities and duties of the bank which would be applicable to every account. There then were three lines, each labeled “Authorized signature.” On these lines there appears the signatures of Orville and of Clarence. Mrs. Elliston and Mrs. Woods each signed as a witness. At the bottom of the card, in the handwriting of Mrs. Woods, appears, “Name added 6-29-64.” On the reverse side of the card was the caption, “Joint Account-Payable to Either or Survivor.” There then followed the terms of an agreement between the depositors providing, among other things, that “all funds now, or hereafter, deposited in this account, are, and shall be, our joint property and owned by us as joint tenants with right of survivorship, and not as tenants in common and upon the death of either of us any balance in said account shall become the absolute property of the survivor.” Following this were two lines for signatures, but neither Clarence nor Orville signed at any place on this side of the card. Mrs. Woods apparently took the card back to the bank. The ledger sheet shows that the account was changed from the name of Clarence with permission to his mother to write checks, to “Clarence Ison or Orville M. Ison.”

Clarence left the hospital on July 1 and. entered a nursing home at Butler, Missouri. A few days thereafter Clarence executed a deed to the house where he and his mother had lived whereby he conveyed title to himself and to his mother as joint tenants with right of survivorship. It was this deed that the brothers of Clarence, other than Orville, and the sister of Clarence by Count II of the petition sought to have set aside, but which is now not an issue on this appeal.

Orville wrote seven checks on the account, three before and four after Clarence’s death. All were to pay bills of Clarence except the last which was in the amount of $7,440.80 and was payable to Orville. All but the last check were signed, “Clarence W. Ison by Orville M. Ison.” Orville testified that he had a personal account in the same bank, and that he signed the checks in the manner he did in order to designate the account upon which the check was drawn.

The administrator of Clarence’s estate contends on this appeal that he is entitled to judgment against Orville in the amount of $6,000 and against Eleanor in the amount of $5,000 “as a matter of law,” and that said amounts represent “property taken by [Orville and Eleanor respectively] from the account of Clarence W. Ison and invested in U. S. Government Bonds, Series ‘H’, in the name of Clarence W. Ison, with [Orville and Eleanor respectively] as beneficiary.”

The ownership of the United States Government Bonds is governed by the laws of the United States and the regulations of the United States Treasury Department, and on their face, they are payable to the named beneficiaries after the death of Clarence. Union Nat. Bank v. Jessell, 358 Mo. 467, 215 S.W.2d 474; Valentine v. St. Louis Union Trust Co., Mo., 250 S.W.2d 167; 91 C.J.S. United States § 126c. However, those laws and regulations do not prevent the recovery of the proceeds of the bonds if they have been purchased with fraudulently acquired funds. Union Nat. Bank v. Jessell, supra. The administrator argues that (1) the evidence of an intention on the part of Clarence to make a gift “was very vague and indefinite,” (2) the donees were “active in the procurement of the said transfer; ” (3) the donees exerted undue influence on Clarence; and (4) the donees were “in a fiduciary relation” and “in a position of trust and confidence” with Clarence. The only cases cited and relied on are In re Kaimann’s Estate, 360 Mo. 544, 229 S.W.2d 527, and In re Patterson’s Estate, Mo., 383 S.W.2d 735.

For a period of time Orville and Clarence had been partners in farming operations, but that arrangement had been terminated for several years before Clarence sold his farm and moved to town. Orville took Clarence to Kansas City six times to see an eye specialist, and he regularly took Clarence to see a local doctor. But, Clarence was blind and if he went any place he had to be taken by someone. Orville or his wife took Clarence and his mother to obtain groceries every week, and after Clarence became sick they went to see him almost daily. Orville also admitted that at times Clarence asked him to “see about things” for him, and that he asked his “judgment” on things. The nature of these requests is not shown.

There is no evidence that Orville or his wife handled Clarence’s business for him, or that he reposed confidence or trust in them as to his business affairs. They helped Clarence and his mother with their physical needs, a natural and expected activity on their part. As stated in Flynn v. Union National Bank of Springfield, Mo.App., 378 S.W.2d 1, at p. 11, “It is fairly well settled that a trust, strong affection, or a good feeling which one ordinarily reposes in a close, personal friend or relative, or in gratitude for the kind acts of a good neighbor, is not ordinarily the confidential relationship with which we are dealing.” We necessarily conclude that the evidence in this case falls far short of establishing a confidential relationship on the part of either Orville or his wife with Clarence of the nature referred to in the Kaimann and Patterson cases.

Neither do we find any evidence of undue influence on the part of either Orville or his wife. Mental capacity and undue influence are somewhat intertwined in that each involves a state of mind. By reason of a mild reaction to insulin Clarence had temporarily experienced some “confusion,” but there was no evidence that he was experiencing this situation on June 29. When he wanted to discuss his financial affairs, although Orville and his wife were with him, he sent for Mrs. Elliston, a long time friend and business confidante. He considered making a will, but wisely or unwisely Mrs. Elliston discouraged it. He also suggested that he place his money in a savings account, but Mrs. Woods advised him that it would not bear interest, and she suggested that he buy “H” bonds. She explained to him the effect of having the bonds payable to himself and “POD” to another, and he expressed the desire that Orville and his wife “have more” of his property than the others because they had done so much for him. Clarence gave Mrs. Woods the names of those persons he wanted listed on the bonds as “POD” beneficiaries, and the amount of the bonds for each person. He signed the check prepared by Mrs. Woods and drawn on his account for the purchase of the bonds. Although Orville and his wife were present during the discussions between Clarence and Mrs. El-liston and Mrs. Woods, they made no suggestions or, as far as shown by the record, exerted any influence on Clarence whatever. There is no direct evidence of undue influence and such circumstantial evidence as exists is far from sufficient to warrant an inference of undue influence. “The mere opportunity to influence, * * * unsupported by evidence showing its actual existence, is not sufficient to invalidate a deed,” Walton v. Van Camp, Mo., 283 S.W.2d 493, 502, and for the same reason would be insufficient to support the relief sought in this case as to the “H” bonds. See generally, Sebree v. Rosen, Mo., 349 S.W.2d 865; McCormack v. Berking, 365 Mo. 913, 290 S.W.2d 145. We find no reason why the intention of Clarence, as evidenced by his instructions to Mrs. Woods in the listing on the bonds of “POD” beneficiaries, should not be carried out.

We turn now to the question of whether, as to the bank account, there was created between Clarence and Orville a joint account with the right of surviorship so that upon the death of Clarence the account became the sole property of Orville.

Section 362.470 RSMo 1959, V.A.M.S., relating to joint deposits in banks, provides in effect that when a deposit is made in the name of the depositor and another person and “in form to be paid to either, or the survivor of them,” such deposit and any additions thereto made by either of such persons, shall become the property of such persons as joint tenants and may be paid to either during the lifetime of both, or to the survivor after the death of one of them. This section has uniformly been construed to give rise to a presumption that a deposit made within its purview becomes the property of the persons named as joint tenants, and, in the absence of competent evidence to the contrary, to actually fix the ownership of the fund in the persons named as joint tenants with the attendant right of survivorship. Jenkins v. Meyer, Mo., 380 S.W.2d 315. See also, In re Patterson’s Estate, Mo., 348 S.W.2d 6, and the cases cited at p. 8. The deposit in this case was made by Clarence, and it was in the names of “Clarence Ison or Orville M. Ison.” This deposit was not in form “to be paid to either, or the survivor of them,” and therefore did not comply with Section 362.470, and the statutory presumption that a joint tenancy was created does not arise. Jenkins v. Meyer, supra; Murphy v. Wolfe, 329 Mo. 545, 45 S.W.2d 1079. Therefore, the survivor has the burden of proving that the deposit was made with the intention of creating a joint tenancy. Jenkins v. Meyer, supra; Newcombe v. Farmer, Mo.App., 360 S.W.2d 272; Princeton State Bank v. Wayman, Mo.App., 271 S.W.2d 600.

Generally, in the absence of a statute pertaining to the matter, in order for a joint tenancy to be created the intent to do so must clearly be expressed by appropriate language understandingly used, McElroy v. Fluker, Mo., 265 S.W.2d 361, and where the instrument is ambiguous as to the nature of the estate or interest created, as a rule it will not be construed to create a joint tenancy. Longacre v. Knowles, Mo., 333 S.W.2d 67, 70 ; 48 C.J.S. Joint Tenancy § 3d, p. 918. “In most of the cases in which the question has arisen it has been held that no joint tenancy, with the right of survivorship, was created by a note or certificate of deposit providing for payment in the alternative to two or more payees.” Annotation, 171 A.L.R. at p. 528. “This result is necessarily and properly reached because the language used does not indicate an intent to create a unity of interest, but on the contrary it indicates an intent that the interest of one is to be to the exclusion of the other, and there is not an equal right in both to share in the enjoyment of the property.” Longacre v. Knowles, supra at p. 70. See also, Jenkins v. Meyer, supra, 380 S.W.2d at p. 321 and Hemphill v. Jackson, Mo.App., 306 S.W.2d 610, 615.

Clarence did not write the names “Clarence Ison or Orville M. Ison” on the card. Mrs. Woods did that, and as assistant cashier of the bank it may be presumed that she intentionally had Clarence and Orville sign only on the side of the card showing “Authorized signatures,” and not on the side containing the terms of an agreement for a joint account with right of survivorship. Although Mrs. Woods at one time testified that Clarence “wanted it to be a joint account,” this conclusion on her part is inconsistent with what she did, and is also inconsistent with other statements by her and by Mrs. Elliston to the effect that the purpose of adding Orville’s name was so he could write checks to take care of Clarence’s business. In addition, Orville testified unequivocally that he never asserted or claimed any interest whatever in the account as long as Clarence was living, and that until Clarence’s death he considered the account to belong solely to Clarence. Orville knew of the addition of his name to the account, and the above is inconsistent with his present contention that there was created a joint account with right of survivorship.

We conclude that the addition of Orville’s name to the above account had as its purpose the convenience in permitting him to write checks on Clarence’s account to pay his bills, and not to create a joint account with right of survivorship.

The judgment as to Count II is affirmed, and the judgment as to Count I is reversed, and as to Count I the cause is remanded with directions to enter judgment in favor of the Administrator of the estate of Clarence Ison and against Orville Ison only in the amount of $7,440.80, and in favor of Eleanor Ison.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM:

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: PRITCHARD, Commissioner.

text:
    C. W. BUZZARD, Appellant, v. M. E. MORRIS, successor to Milton Carpenter, State Treasurer and Custodian of Second Injury Fund, Respondent, C. W. Nofsinger Co., et al., Defendants.
    No. 51963.
    Supreme Court of Missouri, Division No. 2.
    Dec. 12, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied Jan. 9, 1967.
    Douglas & Douglas, Neosho, for appellant.
    Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.
   PRITCHARD, Commissioner.

Appellant’s claim [against the Second Injury Fund (§ 287.220, RSMo 1959, V.A. M.S.)] for total (100%) disability allowed by Referee Richard D. Moss of the Division of Workmen’s Compensation was modified by the Industrial Commission of Missouri from an award of $40.00 per week for 200 weeks and $27.50 per week thereafter for life to 60 weeks of compensation at the rate of $40.00 per week. The Industrial Commission, upon review, found that appellant was 90% total disabled rather than the 100% disablement found by the Referee. The Circuit Court affirmed the award of the Industrial Commission.

We have appellate jurisdiction by reason of the Treasurer of Missouri, as Custodian of the Second Injury Fund, a state officer, being a party. Grant v. Neal, Mo., 381 S.W.2d 838.

Appellant’s three points, which we group, are that (1) the Industrial Commission acted without or in excess of its powers by reducing the award made by the Referee; (2) the facts found by the Industrial Commission do not support the award, and there was not sufficient competent evidence in the record to justify the Industrial Commission in modifying the award; and (3) there is sufficient undisputed and uncontra-dicted evidence that only one inference can be drawn from it, and the question here becomes one of law and hence reviewable by the court.

The previous disability to that for which appellant now claims compensation from the Second Injury Fund was occasioned by his being struck by a German bazooka on April 26, 1945, while in the United States Army. As a result, his right leg was amputated 5½ inches below the knee and his left leg was amputated 5 inches below the knee. Appellant’s present claim is for injuries suffered in an automobile accident near Diamond, Missouri, while he was on his way to work at the Atlas Chemical plant on August 17, 1961. Claim was filed for compensation against appellant’s employer, C. W. Nofsinger Co., and was settled by compromise, approved by the Division of Workmen’s Compensation on August 13, 1962, for $4,900.00. On July 17, 1964, appellant filed his claim (arising out of the August 17, 1961 automobile accident) against the Second Injury Fund.

The facts, relating to the extent of disability, are that appellant was examined medically by three physicians, two of his own choosing, Dr. B. E. DeTar, Jr., and Dr. Lewis Ferguson, both general surgeons, and one appointed by the Referee, Dr. A. H. Diehr, an orthopedist in St. Louis, Missouri, whose written report was placed in evidence without objection under § 287.210 (2), RSMo 1959, V.A.M.S.

Dr. Ferguson testified that appellant was fifty per cent disabled, because of his amputations, prior to the August, 1961 accident. In that accident he received an additional fifteen per cent disability, and it was his opinion that appellant is “permanently and totally disabled to the one hundred percent. I do not believe he can work again gainfully.” It was his further opinion that the accident in no way added to the injury to appellant’s legs — it added to his back, his neck, and he also developed a shoulder difficulty. Due to the amputations, he is getting worse, but as a result of the bilateral amputation and the disability sustained in the accident, combined, appellant was made a hundred per cent disabled, total and permanent.

Dr. DeTar testified that appellant had (from the automobile accident) a 25 to 35 per cent disability over and above the previous disability of the amputations. The combination of the amputations disability and the 25 to 35 per cent disability was, in Dr. DeTar’s opinion, over a hundred per cent, and that he would not be employable. From his examination he reported that appellant has the following permanent disabilities: “(1) Non-union fracture of the right mandible. (2) Traumatic left sub-scapular bursitis and/or myositis, chronic. (3) Low back pain, due to sclerosing arthritis of the left hypophysial joint at 1^5 and S-l; and fractures of the transverse processes of the 3rd and 4th lumbar vertebrae, these having been demonstrated on prior x-rays at a previous examination. (4) Chronic cervical and upper thoracic sprain. (5) Bilateral below-the-knee amputation. Due to these combined findings, it is my opinion that this man has a permanent total disability over and above 100 per cent.”

Dr. Diehr found that there was no evidence of any increased disability in appellant’s legs as a result of the last accident, which did not affect the use of his legs “and he has exceptionally good use of his legs.” He did not consider appellant totally and permanently disabled at this time (the date of the report is April 9, 1964). It was his opinion that his estimated small percentage (an additional 5%) as a result of his last accident, when combined with all pre-existing disabilities, would constitute no greater disability than the sum of each considered alone and of itself.

There was a conflict, as is above set forth, in the medical conclusions as to the extent of appellant’s disability resulting from the August 17, 1961 automobile accident. There was disputed and contradicted evidence before the Industrial Commission from which different findings could be made. The report and conclusion of Dr. Diehr was sufficient substantial (and competent) evidence to support the award modifying the Referee’s award. In such case we may not disturb the finding of the Industrial Commission. § 287.490, RSMo 1959, V.A.M.S.; Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61, 65 [3-5], and cases there cited. The case does not descend to a question of law only, and certainly the Industrial Commission did not act without and in excess of its powers in reducing the award. Appellant does not show to us that the Commission did so. Schmidt v. Adams & Sons Grocer Company, Mo.App., 377 S.W.2d 564, does not aid him. Appellant’s points are overruled.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM:

The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    Walter ROTHENHOEFER, Appellant, v. The CITY OF ST. LOUIS, a Municipal Corporation, Respondent.
    No. 51833.
    Supreme Court of Missouri, Division No. 2.
    Dec. 12, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Jan. 9, 1967.
    W. W. Sleater, St. Louis, for appellant.
    Thomas F. McGuire, City Counselor, James J. Gallagher, Associate City Counselor, St. Louis, for respondent.
   BARRETT, Commissioner.

Qaiming a value of $40,000 and $25,000 damages for the destruction of his building known as 1907-1909 St. Louis Avenue, Walter Rothenhoefer instituted this common law tort action against the City of St. Louis. A jury was waived, the trial court made an extensive finding of fact, all in favor of the city, and concluded by entering judgment against the plaintiff Rothenhoefer upon his causé of action and upon the city’s counterclaim (the expense of razing plaintiff’s building) entered judgment for the city for $1650 and the plaintiff has appealed.

The action arose in these briefly noted circumstances: On September 12, 1961, Mr. Rothenhoefer, a builder who had also been in the wrecking business, purchased the three-story building and lot, approximately 70 by 160 feet, on St. Louis Avenue for $6100.00. Built in the 1890’s and once occupied if not owned by the Y.M.C.A., the building was now in “a sort of devastated area,” had been vacant for years and was subject to “uncontrolled vandalism.” Projecting a future value of $30,000 or more Mr. Rothenhoefer had envisioned using it for a combined church and bomb shelter, a car wash or a hamburger stand, utilizing at most only the first two floors and basement. Originally the building was three stories with a 50 by 60 foot basement, “hewn stone” foundation, brick walls, wooden flooring, “hog chain beams” of heavy timber and a flat roof resting on the wooden trusses. In December 1961, “started in the basement by vandalism,” the building was virtually gutted by fire. While conceding that the fire “spread through the entire building, burning all the one-inch lumber, and the roof” Mr. Rothenhoefer nevertheless claimed that the walls were yet “pretty sound,” the basement intact, and he proposed a partial razing of the structure and some use of the salvage.

The Building Commissioner of St. Louis inspected the building both before and after the fire and even before the fire found that the building “was in a completely dilapidated condition.” The supporting timbers from basement to roof were in a “deteriorated, rotted condition” due to exposure to the elements and basement moisture over a period of years. The roof was partially rotted, there were holes in the floors, stairways were broken, and an auditorium and balcony suspended above the second floor by steel rods off the trusses was hanging “in a very hazardous condb tion.” Accordingly in October 1961 and before the fire the city started proceedings to condemn the building. But in December there was “a raging fire,” the Building Commissioner of St. Louis was present and he said that 50% “of the interior of the building was consumed by fire,” the roof was burned, the balcony destroyed, the beams and trusses charred and the walls were further damaged by heat and water.

Nevertheless, in January 1962 the city issued Mr. Rothenhoefer a permit to raze part of the structure and reduce it to a one-story building. The permit was for 30 days, it was extended and there was some work on the premises. Mr. Rothen-hoefer had the north wall “winched down” and fifty loads of rubbish removed, about 40% of it he claimed. But by April 1962 all permits had expired, very little had been accomplished by way of either razing or restoration and the city proceeded at a cost of $1650 to raze the structure.

Upon this appeal Mr. Rothenhoefer contends that there was no proper notice to him and that therefore the city’s condemnation proceeding was illegal. (This claim is made despite the fact that on May 18, 1962, he and his present counsel appeared before the Board of Building Appeals, agreed to proceed with the hearing, there was a hearing and on May 18, 1962, a complete finding of fact, conclusions of law and a final decision that the building could only be rendered safe by demolition and removal.) It is said, however, that the appeals board found that its “re-condemnation” order was erroneous, that the city did not appeal that order and so it is urged that plaintiff’s property was demolished “without due process.” It is said that the work done on the property after October 17, 1961, substantially changed conditions and that therefore a new proceeding was required. Among other matters it is urged that since the city issued a permit to reduce the building to one story it is estopped to deny that “the foundation and first story were (not) sound.” And finally, upon the merits of appellant’s claim, it is said that all the testimony indicated that the first floor was sound “and capable of rehabilitation; therefore, in destroying plaintiff’s entire building, the City wrecked and destroyed more than was necessary.” These arguments are set forth in detail to the end that it may readily appear why this appeal is necessarily disposed of without specific regard to these assignments of error.

As indicated this is a common law tort action, independent of statute an action for damages for the wrongful destruction of plaintiff’s building and for the purposes of this appeal it is assumed, as specifically pleaded, that appellant made a jury case of the city’s wrongful destruction of his building. “While property may be destroyed because it is dangerous to the public, a destruction of particular property on this ground without necessity, and where the property is not in fact dangerous, may be at the peril of the municipality.” 18 McQuillin, Municipal Corporations, § 53.58, p. 280; Annotation 46 A.L.R. 362; Aronoff v. City of St. Louis, Mo., 327 S.W.2d 171; Moll Co. v. Holstner, 252 Ky. 249, 67 S.W.2d 1. While this was a common law action and as to its essential issues a case that could have been tried by a jury, “a jury having been waived by counsel” the case was submitted to and tried by the court. And as stated the court made a full and complete finding of facts, including among numerous other matters unfavorable to the appellant specifically “the Court finds that the building at 1907-1909 St. Louis Avenue had no value after the fire of December, 1961, except for possible salvage materials, and the value of salvage materials was not an issue in this case.” (Emphasis supplied.) To digress, since the action was in fact to recover the “reasonable value” of the destroyed building, the appeal is not concerned with a mere technical invasion of rights and the right to at least nominal damages as in Heuer v. John R. Thompson Co., Mo.App., 251 S.W.2d 980; Greenlake Investment Co. v. Swarthout, Mo.App., 161 S.W.2d 697 and Flynt v. Chicago, B. & Q. Ry. Co., 38 Mo.App. 94. Of importance and significance here is that this was a court-tried case, and while it is reviewable in this court “as in suits of an equitable nature,” the judgment is not to be “set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Civil Rule 73.01(d), V.A.M.R.; RSMo 1959, § 510.310(4), V.A.M.S.

In addition to his own testimony Mr. Rothenhoefer had as a witness a realtor who testified that prior to its destruction the building had a value of $25,000. As stated, he paid $6100 for the entire property and in 1963 sold the lot for “a little over $2750.00” and in his federal income tax return claimed a casualty loss of $5,-469.00. In addition to the building commissioner’s testimony as to the condition of the building and the necessity for its demolition the city also had as an expert witness a realtor and appraiser. This witness ascribed a value of $3500.00 to the lot and as to the building said that after the fire “it couldn’t be put to any use.” It was his opinion that the building “is of no value to the land.” Thus upon this record and deferring to the trial court’s finding of fact insofar as it involves credibility of conflicting testimony it is not possible for this court to confidently make a contrary or different finding as to value and hence damages. 25A C.J.S. Damages § 162(1) b. And as of course, the burden of proof being upon the appellant (22 Am.Jur.2d (Damages) §§ 296, p. 392, 301, p. 401) if his burned out building was of no value when razed he has suffered no loss and is not entitled to recover damages in this particular action. Wise v. Towse, Mo.App., 366 S.W.2d 506; Biscoe v. Kowalski, Mo., 290 S.W.2d 133, 137-138; Carpenter v. City of Versailles, Mo.App., 65 S.W.2d 957; Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 253 S.W.2d 158, 164.

The contractor’s bill to the city for razing the building was $1650.00, the building commissioner testified that the charge was reasonable even though the contractor may have once submitted “a bid” of $1250.00. Other than the contractor’s former bid there is no evidence that the sum charged was “excessive” or “unreasonable” and of course the court’s finding for the city on the counterclaim is supported and this court is in no position to make another or different finding and award.

For the reasons indicated the judgment is affirmed.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM:

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.