author: WERLEIN, Justice.

text:
    CONSOLIDATED UNDERWRITERS, Appellant, v. John Victor WRIGHT, Appellee.
    No. 14856.
    Court of Civil Appeals of Texas. Houston.
    Oct. 27, 1966.
    Rehearing Denied Nov. 17, 1966.

      Joseph D. Cheavens, Paul W. Persons, Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellant.
    Frank T. Abraham, W. James Kronzer, Houston (Brown, Kronzer, Abraham, Watkins & Steely, Houston, Spinn, Ehlert & Spinn, Brenham, of counsel), for appellee.
   WERLEIN, Justice.

This is a compensation suit brought against appellant, Consolidated Underwriters, by appellee, John Victor Wright, who alleged that he sustained accidental damage on or about March 5, 1963, and July 29, 1963, while in the course and scope of his employment for Texas Bolt Company. The jury found that appellee sustained an accidental injury which caused total incapacity beginning March S, 1963, and continuing for six weeks, and partial incapacity beginning July 25, 1963, which was permanent. The jury also found that appellee’s incapacity was not solely caused by any prior disease or prior bodily infirmity existing before March 5, 1963, disconnected with and not aggravated by the injury of March 5, 1963. The court, on the jury verdict and stipulation that appellee was entitled to receive his compensation, if any, in lump sum, entered judgment for appellee in the sum of $7,727.96.

In its first point appellant asserts that the trial court erred in overruling appellant’s plea to the jurisdiction and in abatement because there was a fatal variance between appellee’s claim before the Industrial Accident Board and the case as pleaded and submitted to the jury.

On August 24, 1963, appellee filed his notice and claim with the Industrial Accident Board on one of its printed forms entitled “Notice of Injury from Occupational Disease and Claim for Compensation for Injury from Occupational Disease.” To the inquiry on such printed form reading: “Date of first distinct manifestation of disease occurred on” appellee stated: “March 5,1963.” To inquiry: “Date last injuriously exposed to hazards of disease” appellee stated: “July 29, 1963”; in response to inquiry as to whether appellee had worked for any other employer since his incapacity began, appellee answered, “Worked for same employer from April 22, 1963 to July 29, 1963.” To inquiry as to when he started losing time, appellee answered, “March 5, 1963”; to inquiry as to whether he had returned to work, he answered, “Yes, temporarily from April 22, 1963 until July 29, 1963, and have not worked since that date.” To the inquiry, “Describe nature of occupational disease and cause of disease,” appel-lee answered, "Injury and irritation of lung tissues and bronchi (breathing tubes) caused from breathing gas fumes, etc. from furnaces in plant.” (emphasis ours)

On another of the Board’s forms appellee informed the Board that he was injured at his employer’s place of business at 10 a.m. on March 5, 1963, and that he reported the injury on that date to his employer’s superintendent. He was sent to a doctor by his employer. In a letter to the Board received January IS, 1964, appellee, inquiring why he had not received any compensation, started his letter by stating: “I am writing in regard to a accident * * * ” The Industrial Accident Board on June 22, 1964, made its award in which it stated that “The Board finds that the evidence submitted fails to establish that the claimant suffered a compensable occupational disease in the course of employment for subscribing employer herein as alleged. Therefore, said claim is denied.”

In his original petition appellee alleged, among other things, “Within the statutory time, your Plaintiff filed notice of injury from occupational disease and made claim for compensation for such occupational disease before the Industrial Accident Board of Texas.” He also alleged that he “filed this suit in this Court of competent jurisdiction to further prosecute his claim for workmen’s compensation insurance benefits.” Appellee further alleged in his petition that “On or about March 5, 1963, and July 29, 1963, your Plaintiff was working in the course and scope of his employment for Texas Bolt Company in Harris County, Texas. While performing his duties for his employer on said dates, your Plaintiff suffered accidental damage and harm to the physical structure of his body in the nature of inhaling of noxious gas and fumes, causing damage and harm to his bronchial tubes, lungs and respiratory system. As a result of said injuries, your Plaintiff has been substantially unable to perform the material tasks of a workman, and therefore has been disqualified from obtaining and retaining employment as such, consequently entitling him to total compensation benefits under the Workmen’s Compensation Act of Texas, either for an accidental injury under the law or as an occupational disease, in the amount of Thirty-five Dollars ($35) per week for a period of 401 weeks, as allowed by law.”

The evidence shows that appellee, who had only a seventh grade education, was engaged in making boxes for his employer, and that his place of work was in an upper level or attic of his employer’s office building, where he was practically surrounded by boxes piled ten feet high, and there was considerable heat and little or no ventilation, and where smoke and fumes from the heat treating units would “roll over here and come in, suck into back of my fan and onto me.” The potholes in the roof of such building were closed and, as appellee testified, there was no way for the fumes to escape. Appellee was the only employee who worked in the attic of the building. He testified that he was told not to open the potholes. He described the occurrence of March 5, 1963 as follows:

“Well I was working on — up there and the fumes and smoke was very bad and I found myself getting dizzy and I choked off and then I staggered myself to the front where I tried to get a little air and I set down on a box there until I could gain enough strength to see the ladder — I couldn’t hardly see the ladder as I come down the ladder and I said to the superintendent Mr. Anderson — that gas is killing me — I am a sick man — and he looked at me and wrote out a letter to go to the doctor.”

He further testified that he did not go to the doctor’s office immediately but lay down in his car for about an hour until he felt he was able to drive. He was given oxygen treatment. Appellee further testified that before the accident he had never had any persistent difficulty in breathing or lung difficulty of any kind or chest pain of which he was aware. He testified that since such occurrence if he walked a block or two or did much talking he was out of wind; that he could not breathe and had to quit singing in church because his breath was so short and that when he breathed hard he developed a severe pain in his chest. He was given treatments for about a year or more. He tried to go back to work and worked two or 21/2 days “along the last of July” but that he was unable to stand up under the work; that he was getting no better and could not hold down any job on a full-time basis; that he had had no chest trouble before. He testified the fumes had been bothering him for several months before he finally got sick, but on that day of March S, 1963 he got especially sick and went to the doctor.

Ernest Williams, a fellow employee who had worked for the Texas Bolt Company for some 15 years, testified with respect to the gas and the heat treating units, and also testified:

“I don’t know if he fell out or not but I know he come downstairs and he had been around walking to the doors and I asked what was wrong and he said those gas fumes are sure strong and I did go up there and they sure was strong.”

There is also evidence that appellee tried to work on July 29, 1963, but was unable to do so on account of his condition.

In appellant’s letter of June 16, 1964, to the Industrial Accident Board the question of traumatic injury was placed in issue in that appellant’s representative said:

“1. That, it is denied that the claimant sustained any manner of accidental injury or occupational disease while in the employ of our assured.
“2. That, it is denied that this claimant has lost any time from work due to trauma or occupational disease.
“3. That, it is denied that this claimant has suffered any permanent defect or loss of wage earning capacity due to the trauma or occupational disease.
“4. That, it is our contention that this claimant’s true condition and all of his symptoms are all unrelated to trauma and are not due to any substance or fumes encountered in our assured’s plant; that the claimant’s condition is non-occupational in every respect.”

The law governing fatal variance between claims filed with the Board and suits filed in court is stated in Booth v. Texas Employers’ Insurance Association, 132 Tex. 237, 123 S.W.2d 322, as follows:

“The rule as to suits filed by an injured employee is that the amount of the claim before the Industrial Accident Board is immaterial upon the issue of jurisdiction of the court selected to review the award, the only essential jurisdictional connection between the claim for compensation before the board and the suit to set aside the award being the identity of the injury of which complaint is made.”

In that case Judge Smedley also said:

“Usually the claimant has no knowledge about the jurisdiction of courts and has little information as to the measure or extent of the compensation to which he may be entitled under the law. * * The statute was so written as to permit the injured employee in filing his claim to make known to the board without formality the fact that he has been injured in the course of his employment and that he claims the compensation to which he is entitled under the law for the injury suffered, * * *
⅜ ⅜ ⅝ ⅜ ⅝ ⅝
“It has repeatedly been held, that, although one claim cannot be filed with the board and another and different claim asserted in court, yet when the injury suffered is of that class of injuries, sometimes called general injuries, for which the compensation is based upon incapacity to work, and not of that class of injuries usually called specific injuries, for which the amount of compensation is fixed by the statute, a general description of the injury is sufficient in the claim made before the board, and that in the suit filed to set aside the award of the board the claim may be enlarged to include all injuries proximately resulting from the accident.”

The question before us is whether or not there is a fatal variance between the claim presented to the Board and that prosecuted in court, and further whether or not the jurisdictional requirement of “identity of the injury” has been sufficiently met in the instant case. There is no contention that appellee received an injury at a different time or place than that claimed before the Industrial Accident Board, and which the jury found was on March 5, 1963. Appellee claimed in his notice to the Board and also in his original petition filed in court, that he had received an injury. The Workmen’s Compensation Act of Texas, under Article 8306, Section 20, entitled “ ‘Injury’ and ‘personal injury’ defined: occupational disease, what are” defines both conditions as being injuries.

“Sec. 20. Wherever the terms ‘injury’ or ‘personal injury’ are used in the Workmen’s Compensation Law of this state, such terms shall be construed to mean damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom. Unless from the context the meaning is clearly to the contrary, such terms shall also be construed to mean and include occupational diseases, as hereinafter defined. * * * ”

Thus, the term “injury” is construed to mean damage or harm to the physical structure of the body and includes occupational diseases. In Solomon v. Massachusetts Bonding & Insurance Co., Tex.Civ.App., 347 S.W.2d 17, writ ref., cited by appellant, the court stated:

“An industrial accident or accidental injury can always be traced to a definite time, place and cause, whereas an industrial disease is of slow and gradual development, and the time, place and cause thereof are not susceptible of definite ascertainment.”

In that case the variance was obvious in that the claim before the Board relied on an accident alleged to have occurred on June 24, 1956, in San Antonio, Texas, whereas in his pleading appellant relied on one alleged to have occurred on or about January 1, 1954 at or near Eagle Pass, Texas. Thus there was a discrepancy of almost two and one-half years in the time, and more than 100 miles in the place of the accident. Certainly the jurisdictional requirement of “identity of the injury” was not met.

In presenting his claim to the Board appellee stated that he received “injury and irritation to lung tissues and bronchi caused from breathing gas fumes, etc., from furnaces at plant.” The claim before the Industrial Accident Board was the same incident, occurrence and condition as the cause of action before the court. The occurrence was described both before the Board and in court, giving the time, place and nature of the particular incident and injury suffered by appellee. Appellee alleged in his original petition that at a specific time and place he suffered an accidental damage and harm to the physical structure of his body, and that as a result of said injury he had been disabled. At the trial he offered evidence showing that he suffered such injury on March 5, 1963, and the jury so found. In his notice and claim filed with the Board, although the same was filed on the Board’s form covering occupational disease, the same claim or cause of action was set out. In Booth v. Texas Employers’ Insurance Association, supra, the court said: “We do not attach controlling importance to the form presented by the Board.” The court also said that, “ * * * the statute does not undertake to prescribe the form or manner of making claims * * * ”

In Texas Employers’ Insurance Association v. Cross, Tex.Civ.App., 358 S.W.2d 156, writ ref., n. r. e., the San Antonio Court held that the fact that contact dermatitis is listed as an occupational disease does not prevent the claimant from recovering for contact dermatitis as an accidental injury when the onset is at a definite time or place. The latter requirement seems to be the only prerequisite to a recovery under the general injury provision for a listed occupational disease. There are numerous cases decided by our Texas courts in which damage from breathing fumes or noxious gases have been treated as accidental injuries. In Maryland Casualty Co. v. Rogers, Tex.Civ.App., 86 S.W.2d 867, writ ref., pneumonia contracted by a workman was held to be an injury. In Aetna Insurance Co. v. Hart, Tex.Civ.App., 1958, 315 S.W.2d 169, writ ref., n. r. e., it was stated: “ * * * there is nothing in the Workmen’s Compensation Act which requires that the injury be the result of an accident. * * * if an injury is shown to have been received by an employee while he is acting within the course of his employment and such injury is the result of a risk or hazard of the employment, it is compensable under the Workmen’s Compensation Act.” In the recent case of Travelers Insurance Co. v. Fagan, Tex. Civ.App., 366 S.W.2d 885, writ ref., n. r. e., neuralgia from an air conditioning draft was held to be a compensable injury. In Maryland Casualty Co. v. Broadway, 5th Cir., 110 F.2d 357, the court said: “But if the bodily injury is referable to a definite occurrence or series of occurrences in the work, to which a time and place may be assigned, it may be compensable though it does not result instantly.”

It is true that the Industrial Accident Board, in its award, stated that the evidence failed to establish a compensable occupational disease. The Board in fact, however, denied appellee’s claim as asserted by appellee regardless'of the Board’s designation of such claim. The claim before the Board, in view of the correspondence, appellee’s letter referring to his accident, and the statements made by appellee in instruments filed with the Board, was broad enough to cover an injury which resulted to appellee at a definite time and place while acting within the course and scope of his employment. Although the printed words on one of the Board’s forms seem to restrict the claim to an occupational disease, the words typed by appellee in the blank spaces on such form indicate that he was claiming compensation benefits for an injury which occurred at a definite time and place. On the other form entitled, “Employee Hearing and Statement” nothing is said with reference to occupational disease. The statement clearly states that appellee was injured at his employer’s place of business at 10 a. m. on March 5, 1963, and reported the injury that day. Thus, such claim and the claim prosecuted in court are the same claim. Both claims seek compensation benefits for an injury which occurred at appellant’s plant on March 5, 1963 as a result of inhaling fumes. In our opinion the jurisdictional requirement of identity of the injury has been sufficiently met in the instant case, especially in view of the fact that the Workmen’s Compensation Act should be liberally construed in favor of the injured party. In Miears v. Industrial Accident Board, 1950, 149 Tex. 270, 232 S.W.2d 671, at page 675, the court said :

“It is settled law that the Workmen’s Compensation Act should be construed liberally in favor of the injured workman, Huffman v. Southern Underwriters, 133 Tex. 354, 128 S.W.2d 4; 45 Tex.Jur., ‘Workmen’s Compensation,’ Section 7, and it would therefore not be proper to supply by implication a restriction on the employee’s rights which is not found in the language of the statute.”

See also Texas Employers’ Insurance Ass’n v. Evers, Tex.Civ.App., 242 S.W.2d 906, writ ref., n. r. e., and authorities cited.

Appellant’s plea to the jurisdiction and in abatement because of an alleged variance in the claim before the Board and that asserted in court, was a part of its motion to set aside the judgment of the court. Such motion was not filed until January-26, 1966, although the court’s judgment was entered December IS, 1965. The potential jurisdiction of a court and its jurisdiction per se over the subject matter of a suit may be questioned at any time when it appears of record. In the instant case the only jurisdictional question is based upon an alleged fatal variance between the claim as presented before the Board and the claim as prosecuted in court. Unless there was an actual fatal variance appellant’s contention could not be reached by a plea to the jurisdiction. We are of the opinion that there was no such fatal variance.

Furthermore, since appellant’s contention is directed principally toward the pleadings or instruments presented to the Board and the pleading filed in court, it is our view that the alleged variance should not have been presented by a plea to the jurisdiction but by special exceptions to the pleading which would have afforded ap-pellee an opportunity to amend his pleading if defective. In Mozley v. American General Insurance Company, Tex.Civ.App., 324 S.W.2d 925, writ ref., n. r. e., the court said: “This fatal variance in the claim presented to the Board and the one stated in the trial amendment should have been presented by special exception to the pleadings, rather than by a plea to the jurisdiction, inasmuch as the matter arose from the pleadings.”

We are of the opinion, as stated, that there was no fatal variance between the claim as presented to the Board and that prosecuted in court, and further that in the event it could be said that there was such variance appellant has waived the same since after the promulgation of Rule 90, Texas Rules of Civil Procedure, the failure to attack an adverse pleading for alleged jurisdictional defects until after judgment constitutes a waiver of such an attack. Olivares v. Service Trust Company, Tex.Civ.App. 1964, 385 S.W.2d 687; Baker v. Highway Ins. Underwriters, Tex.Civ.App., 209 S.W.2d 979, writ ref., n. r. e.; Erminger v. Daniel, Tex.Civ.App., 185 S.W.2d 148, writ ref., w. m.; Litterst v. Edmonds, Tex.Civ.App., 176 S.W.2d 342, writ ref., w. m.; Rule 90, T.R. C.P.

Appellant asserts that the court erred in overruling its motions for instructed verdict, and also for failing to enter judgment in its favor notwithstanding the verdict of the jury on the ground that there was no evidence that appellee had sustained an accidental injury and no evidence to support the jury’s verdict, and further that the court erred in overruling its motion for new trial because there was insufficient evidence to support the jury’s verdict that appellee had sustained an accidental injury. Appellant’s assignment that there was insufficient evidence to support the jury’s verdict is raised for the first time in its brief. In its amended motion for new trial the grounds on which appellant contends support its point complaining of insufficient evidence to support the jury verdict, do no more than allege that the trial court erred in refusing and overruling appellant’s objections and exceptions to the charge submitting Special Issues Nos. 1, 2 and 3 because of alleged “insufficiency of the evidence”. Such complaints do not raise the insufficiency of the evidence to support the jury verdict. Garza v. Alviar, Tex.Sup.1965, 395 S.W.2d 821; McDonald v. New York Central Mutual Fire Ins. Co., Tex.Sup.1964, 380 S.W.2d 545; Solgaard v. Texas & N. O. R. Co., 1950, 149 Tex. 181, 229 S.W.2d 777; Calvert, 38 Tex. Law Review 361. Nevertheless, we have read the entire statement of facts and carefully examined the exhibits, and have concluded that there was an abundance of evidence warranting submission of such issues. Furthermore, in considering all of the evidence, both that favorable to the jury’s finding of accidental injury and that militating against such finding, we have concluded that such finding is not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, 1951, 150 Tex. 662, 244 S.W.2d 660.

Much of appellee’s testimony has been set out hereinabove and will not be repeated. We might add, however, that there were no exhaust fans for the potholes before the accident, but some were installed after the accident, and also that the last two heat treatment units were installed in December and then put in operation. Red hot screws, bolts and nuts were placed in a bath of oil in the heat treatment units and these gave off smoke and fumes. The oil bath consisted of approximately 85% water and 15% rust preventative.

Dr. Waller, who gave appellee oxygen treatments, advised him to remain away from work for an indefinite period. Ap-pellee then went back to his home town, Brenham, Texas, where Dr. Schoenvogel treated him. Appellee testified that after the two heat treatment units were installed in December, he had been bothered some with his eyes watering and his nose and throat burning, but on this particular occasion he got especially sick, became dizzy, and was choked off, had to stagger down from his working position, and reported that the gas was killing him. Mr. Anderson, the plant superintendent of appellee’s employer, was present on the day that appellee choked up and requested permission to go to the doctor. He gave the following testimony:

Q Did you observe him in his condition at that time?
A I can’t remember, it is vague — and he was pretty well choked up — I’ll say that.
Q Do you remember him complaining that the fumes or vapors above his office had got him?
A He said that — yes, sir.

Dr. Schoenvogel testified that appellee had a decrease in his lung capacity of 40 to 50% caused by damage to the alveoli lining of the lungs and lung tissue due to the inhalation of gas fumes, and that such condition was permanent. Dr. Abbe Led-better, in answer to a hypothetical question, testified that in his opinion appellee’s exposure to the fumes on the day he fell out on the job on or about March 5, 1963, was a producing cause of his trouble and disability, and that his condition was permanent. It seems obvious that although appellee had been exposed to smoke and fumes previously, there was an unusual and heavy concentration of the same on March 5, 1963 which caused him to choke up and fall out on the job. Appellee testified that he had not had any chest trouble whatever before. The fact that he had been bothered to some extent since December with his eyes and throat does not militate against the fact that on the particular occasion he suffered an accidental injury to his lungs. See Texas Employers’ Ins. Ass’n v. Bradford, Tex.Civ.App., 381 S.W.2d 234, writ ref., n. r. e., where it was held that the dropping of a sack of cement causing dermatitis was held to be an accidental injury, although there had been some dermatitis existing to some extent before from working around the cement. In Safety Casualty Co. v. O’Pry, Tex.Civ.App., 187 S.W.2d 578, writ ref., w. m., the inhalation of gas and fumes causing the tubercular condition was held compensable as a personal injury. It was only necessary for appellee to prove that his injury was referable to a definite occurrence to which a time and place and cause could be assigned, in order for him to be entitled to compensation benefits under the statutory definition of “compensable injury”. See Maryland Casualty Co. v. Broadway, supra; Texas Employers’ Insurance Association v. Cross, supra; Maryland Casualty Co. v. Rogers, supra; Aetna Insurance Co. v. Hart, supra, and Travelers Insurance Co. v. Fagan, supra. It is our view that the evidence abundantly shows that the injury to appellee is traceable to the occurrence that happened on the morning of March 5, 1963 in his employer’s place of business.

In its next three points, appellant complains that the court erred in refusing to define “accidental injury” as requested in its Instruction No. 2 contending that the definition given in the charge did not properly distinguish between an accidental injury and an occupational disease, and further that the court refused to submit in its charge to the jury its requested Special Issue No. A relating to whether or not any incapacity of appellee was the result of disease.

The trial court defined “accidental injury" as follows:

“By the term 'accidental injury’, as used in this charge, is meant an unde-signed, unforeseen, or unexpected occurrence or mishap causing harm or damage to the physical structure of the body, and such diseases or infections as naturally result therefrom, or the incitement, acceleration, and aggravation of any disease previously or subsequently existing by reason of such damage or harm to the physical structure of the body.”

Appellant in its objections and exceptions to the court’s charge did not object or except to the court’s definition of “accidental injury” on the ground that it did not properly distinguish between an accidental injury and occupational disease. Therefore, it may not now do so. It sought in its motion for new trial to amplify the grounds of its objections so as to include its present complaint. Such attempt on its part is of no avail. Appellant specially requested submission of its Instruction No. 2 defining “accidental injury” as follows: “By the term ‘accidental injury’ is meant an injury resulting from an undesigned, unforeseen, or unexpected occurrence or mishap, traceable to a definite time and place.” The request to submit such instruction or definition did not constitute an objection to the instruction as submitted by the court. Hodges on Special Issue Submission in Texas (1959), Sec. 70, pars. 173-175.

It is our view that the court properly refused appellant’s requested definition No. 2. The requested definition is not a “substantially correct definition”. The omission from such requested instruction that the “occurrence or mishap” must cause “harm or damage to the physical structure of the body, and such diseases or infections as naturally result therefrom” makes such requested definition incorrect and improper. An injured employee is entitled to recover under the general provisions of the Workmen’s Compensation Act, apart from the “occupational disease” section, if the accident produces damage or harm to the physical structure of the body and diseases or infections naturally result therefrom. Hence, the definition requested by appellant was not substantially correct. City of Houston v. Watson, Tex.Civ.App. 1964, 376 S.W.2d 23, writ ref., n. r. e.; Superior Ins. Co. v. Burnes, Tex.Civ.App., 278 S.W.2d 934, writ ref., n. r. e.

Appellant’s Special Issue No. A was properly refused by the court. The issue reads:

“Do you find from a preponderance of the evidence that the condition of the plaintiff, John Victor Wright, producing the incapacity which you have found, if any, is not the result of disease? * * *
“By the term ‘disease’, as used in the above special issue is meant the slow and gradual development of a condition over a long period of time.”

In the first place the issue and definition are incorrect in that an “occupational disease” is one which from common experience is recognized to be incidental to the type of employment in question and “is the usual and ordinary result incident to the pursuit of an occupation * * * ” Texas Employers’ Ins. Ass’n v. McKay, 1948, 146 Tex. 569, 210 S.W.2d 147. Furthermore, the issue and definition fail to distinguish occupational diseases from those diseases which flow naturally from damage or harm to the physical structure of the body and which are compensable as “accidental injuries.” The law is well settled that the injured employee is entitled to recover for injury consisting of damage or harm to the physical structure of the body and diseases that naturally result therefrom. A finding favorable to appellant to such issue would not establish that the disease was not traceable to harm or damage to the physical structure of the body and hence compensable as an injury.

Judgment affirmed.


source: Caselaw Access Project

author: GREEN, Chief Justice.

license: Public Domain

text:
    Hartford A. LUVAUL, Appellant, v. CITY OF EAGLE PASS, Appellee.
    No. 235.
    Court of Civil Appeals of Texas. Corpus Christi.
    Oct. 27, 1966.
    Rehearing Denied Nov. 17, 1966.

      J. B. Langham and Crawford Reeder, San Antonio, for appellant.
    Gerald D. Becker, City Atty., Eagle Pass, Harvey L. Hardy and Ralph Brown, San Antonio, for appellee.
   OPINION

GREEN, Chief Justice.

This appeal is from a summary judgment rendered for defendant-appellee City of Eagle Pass, based on the principle of municipal immunity from tort liability in a case involving the exercise of a governmental function. The parties will sometimes be designated as in the trial court.

The summary judgment evidence consists of the pleadings and a number of depositions. The testimony of the deponents conflicts as to many of the details of the events made the basis of plaintiff’s cause, but in accordance with the well established rules in summary judgment cases, we shall give credence to the testimony most favorable to the plaintiff, against whom the judgment was rendered, and all evidence to the contrary where conflicts exist will be disregarded. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Co., Tex.Sup.Ct., 391 S.W.2d 41; Valley Stockyards Company v. Kinsel, Tex. Sup.Ct., 369 S.W.2d 19.

On June 24, 1964, in Eagle Pass, Texas, about 10:00 a. m., plaintiff Hartford A. Luvaul was arrested by one Jose A. Sifu-entes, a city policeman acting within the scope of his authority as a member of defendant’s police force, and taken to the county jail of Maverick County in said city. While plaintiff was in said jail, under arrest and, according to plaintiff’s pleadings and evidence, in the custody and control of defendants Sifuentes and city, a disturbance occurred. We give plaintiff the benefit of the summary judgment rule announced above, and for the purpose of this appeal find that the trouble was not of plaintiff’s making. During the disturbance, Sifuentes either negligently or willfully shot plaintiff in the face at close range with a tear gas gun, causing plaintiff to lose the sight of both eyes. After plaintiff was shot, he was placed in a jail cell, and medical aid was not summoned or furnished him for a period of eight hours.

Plaintiff in his First Amended Petition alleged in substance that his injuries resulted from and were proximately caused by acts of negligence or willful wrong committed by the city policeman Sifuentes while within the scope of his employment by defendant city and while plaintiff was under arrest; that his injuries were greatly aggravated by the failure of the city’s police officers to summon medical aid; that among the various acts of negligence committed by defendant city was the hiring of an incompetent and violent policeman, knowing him to be such, failure to train him, arming him with a dangerous tear gas gun and in failing to instruct him in the use thereof; in permitting him to unlawfully arrest plaintiff and use undue force on him, and in confining plaintiff in jail knowing him to be seriously injured without immediately summoning necessary medical aid. In a supplemental petition, plaintiff plead that the negligence of city in entrusting the tear gas gun in the hands of Sifuentes, when the city knew or should have known that he was unskilled and untrained in its use constituted a nuisance.

Defendant city’s motion for summary judgment which was granted by the court was based “on the undisputed fact that the injuries and damages of which Plaintiff complains were caused, whether rightly or wrongly, and whether proximately or indirectly, by a police officer in the employ of the City of Eagle Pass, who was on duty and in the discharge of his duties as such police officer at the time of the occurrence giving rise to this suit. That such undisputed fact completely relieves the City from all legal liability to Plaintiff without regard to fault under the doctrine of governmental immunity.”

The cause of action alleged against the defendant Sifuentes was severed by order of the trial court from the case against the city, and said individual defendant is not a party to this appeal.

Appellant bases his appeal on three Points of Error, as follows:

FIRST POINT OF ERROR

The trial court erred in rendering summary judgment for the defendant city on the basis of municipal governmental immunity because such doctrine should no longer be held to obtain in this jurisdiction.

SECOND POINT OF ERROR

The trial court erred in rendering summary judgment for the defendant city on the basis of municipal governmental immunity under the facts and circumstances of this case because the defendant city’s employees, in failing to immediately summon medical aid for the injured plaintiff breached a non-governmental duty to exercise even ordinary care for the plaintiff’s safety.

THIRD POINT OF ERROR

The trial court erred in rendering summary judgment for the defendant city on the basis of municipal governmental immunity because the defendant city created and maintained a nuisance by arming and equipping its employee, Jose A. Sifuentes, with a tear gas gun, a dangerous instrumentality, which nuisance proximately caused the plaintiff’s injuries.

Appellee replies with two counter-points, as-follows:

FIRST COUNTERPOINT

The trial court properly rendered summary judgment because appellant’s own. pleading, and the undisputed facts, show that he has no cause of action under Texas law. (In reply to Appellant’s First and Second Points of Error).

SECOND COUNTERPOINT

Appellant did not, in actual fact, plead nuisance but negligence and, in any event,, the “nuisance” of which complaint is made is not a nuisance as such term is known in the law. (In reply to Appellant’s Third Point of Error).

We sustain appellee’s counter-points and affirm the judgment.

Municipal corporations exercise both governmental and proprietary powers; while engaged in the former function, a municipality is not liable for torts committed by its officers or agents, but it is liable for injuries resulting from negligent or wrongful acts committed in the performance of proprietary or corporate functions. City of Dallas v. Smith, Tex.Com.App., 130 Tex. 225, 107 S.W.2d 872; 40 Tex.Jur.2d, Municipal Corporations, § 616, p. 300, and cases cited. The exercise of police power has always been recognized as a governmental function, and our courts have consistently held that a city is not liable in tort for damages caused by the acts of its peace officers while they are exercising the police power of the city. Rusher v. City of Dallas, Tex.Com.App., 1892, 83 Tex. 151, 18 S.W. 333 (plaintiff was illegally arrested by city policeman) ; Whitfield v. City of Paris, Tex.Com.App., 1892, 84 Tex. 431, 19 S.W. 566, 15 L.R.A. 783, 31 Am. St.Rep. 69 (plaintiff accidentally shot by policeman while negligently shooting at a dog); Swanson v. City of Nacogdoches, Tex.Civ.App., 161 S.W. 83 (illegal arrest and imprisonment of plaintiff); Tompkins, Auditor v. Williams, Tex.Com.App., 1933, 62 S.W.2d 70 (injured party struck by a motorcycle policeman); Owensby v. Morris, Tex.Civ.App., 79 S.W.2d 934 (unlawful arrest and booking) ; Archer v. City of Cisco, Tex.Civ.App., 211 S.W.2d 955 (assault on plaintiff by city policeman) ; Gonzalez v. City of El Paso, Tex.Civ.App., 316 S.W.2d 176, (negligent shooting and killing of plaintiff’s son by city policeman); Mayes v. City of Wichita Falls, Tex.Civ.App., 403 S.W.2d 852, (1966) writ ref. n. r. e., (deceased killed thru negligence of police officer in operating city police car.)

Appellant does not contend that the rule of governmental immunity as to municipalities stated above was not the Texas law prior to 1956. Appellant argues, under his first point, that three decisions of the Texas Supreme Court rendered since 1956 have abrogated the doctrine of municipal immunity from tort liability in our State. The three “abrogating Texas cases”, to quote appellant’s brief, are Crow v. City of San Antonio, 1957, 157 Tex. 250, 301 S.W.2d 628; City of Austin v. Daniels, 1960, 160 Tex. 628, 335 S.W.2d 753, 81 A.L.R.2d 1180; and Dancer v. City of Houston, Tex. Sup.Ct.1964, 384 S.W.2d 340.

As we construe the opinions in the above cases, the court found in each that the facts of plaintiff’s cause of action involved a combination of the city’s governmental functions and proprietary functions, and it was due to the negligence of the city in the performance of its proprietary function that liability was imposed. In Crow, supra, the court reasoned that while the actual roping off of the street was done in the exercise of a governmental function, (traffic regulation) the failure to warn of the rope’s presence breached the city’s proprietary duty to maintain its streets in a reasonably safe condition for travel. (See discussion of Crow in City of Austin v. Daniels, supra, 335 S.W.2d page 757)

In City of Austin v. Daniels, supra, the city was held liable for injuries sustained when plaintiff slipped and fell on a freshly painted stripe on a city street. The city contended that the stripe was painted to help regulate traffic, a governmental function. Liability was predicated upon the negligent failure to maintain the street in a reasonably safe condition, a function recognized as proprietary as early as 1884 in City of Galveston v. Posnainsky, 62 Tex. 118. It is clear that the court in Daniels did not intend to abolish the doctrine of municipal immunity when it said: “When acting in a governmental capacity, the city is not liable in damages for the torts of its employees”. (335 S.W.2d p. 754)

In the third of the so-called “abrogating cases”, the City of Houston was held liable for injuries sustained by a city prisoner when he stepped on an exposed axe in a bus transporting prisoners to work in a city park. Dancer v. City of Houston, supra. The Supreme Court stated: “Under the decisions of this state, the establishment and maintenance of a public park is a municipal proprietary function.” (384 S.W.2d p. 342) The Court concluded (p. 344):

“In the present case it can be said that the City was exercising both proprietary and governmental functions at the time Dancer was injured. Undoubtedly a guard in maintaining custody and control over prisoners is exercising a governmental function. However, one giving direction as to the activities incident to cleaning up the debris in the public park is in essence acting as a supervisor or foreman and in a nongovernmental capacity. There is no intimation here that Dancer was injured as a result of a city police officer’s exercise of a power designed to maintain custody or control over his person. The transfer of the prisoners to the park and the presence of the axe in the bus were in furtherance of the design to clear the park of the debris deposited by the hurricane.”

Thus it appears that the Supreme Court in the above cited cases, rather than having abrogated the doctrine of municipal immunity, has re-affirmed it as to cases involving the exercise of strictly governmental functions, and has held, as in other cases, that where the breach is of a proprietary, non-governmental function, although the governmental function is also present, the city will be held liable.

As late as October S, 1966, the Supreme Court refused writs of error, n. r. e. in two Court of Civil Appeals decisions in Bean v. City of Monahans, 403 S.W.2d 155, and Mayes v. City of Wichita Falls, 403 S.W.2d 852. In each of these cases, the defendant city was held not liable as a matter of law for the tortious conduct of its employees while operating in a governmental capacity. As applicable to municipal immunity in tort in the exercise of the police power, we quote from Mayes v. City of Wichita Falls, supra, as follows:

“Assuming that the act of the police officer, agent of the defendant city, was inherently dangerous conduct; and furthermore assuming that the city did fail to properly instruct and supervise him in the performance of his duties as a police officer under the circumstances, yet the established law of this State presently inhibits the imposition of liability upon the city.
“(1,2) A municipality is not liable for the negligence of its officers in appointing incompetents for the police force or other positions even though known by the appointing officer to be incompetent. Mc-Quillin, Municipal Corporations, 3rd Ed., Ch. 53, ‘Municipal Liability for Torts’, § 53.78, ‘Duty as to employing “competent” servants’; City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872, 879 (1937) ; 40 Tex.Jur.2d, p. 303, ‘Municipal Corporations’, § 618, ‘Exercise of governmental functions or duties’. It follows that there would be like immunity for negligent retention of known incompetents and even though the incompetence was the result of the municipality’s failure to remedy such by supervision and/or instruction.”

We do not feel that the Supreme Court of Texas has abolished the rule of municipal immunity for torts of its employees committed while in the exercise of governmental functions, as contended by appellant. Regardless of how we feel as to the merits of the rule, we do not believe that it is the function of an intermediate appellate court to attempt to abrogate such well established doctrine. Appellant’s first point is overruled.

In connection with appellant’s second point, concerning the failure of the city officers to summon medical aid for appellant for a period of several hours after the shooting, we quote from Valdez v. Amaya, Tex.Civ.App., 327 S.W.2d 708, cited with evident approval in the Dancer case, as follows:

“The City’s plea in abatement was based upon the contention that Manuel Amaya as City Marshal was exercising police power in making the arrest of Sabas Valdez and, therefore, the City could not be held liable for Amaya’s negligence under the doctrine of respon-deat superior, and further, that if the Marshal was not acting in his official capacity as a police officer, then the City could not be held liable upon any theory, as he had no authority to act for the City in any other capacity.
“The trial court properly sustained the plea in abatement. Whitefield v. City of Paris, 84 Tex. 431, 19 S.W. 566, 15 L.R.A. 783; Archer v. City of Cisco, Tex.Civ.App., 211 S.W.2d 955; Owensby v. Morris, Tex.Civ.App., 79 S.W.2d 934; 30-B Tex.Jur., Municipal Corporations, § 648.
“Appellants contend that the City is liable for the negligence of the Marshal in failing to furnish Sabas Valdez immediate emergency medical treatment at the time he was placed in the City jail, when it was obvious that he needed such treatment. We cannot agree. The Marshal, in arresting Sabas Valdez and placing him in jail, was exercising police power and, regardless of what his negligence was in this connection, the City is not liable for the damages caused by such negligence, under the doctrine of respondeat superior. The authorities cited above clearly support this rule.”

The second point of error is overruled.

Appellant’s third point concerns his allegations in his pleadings that a nuisance was created when the city negligently ■entrusted a dangerous instrumentality, towit a tear gas gun, into the hands of Sifuentes when it knew, or could and should have known, that he was unskilled and untrained in its use.

It is well settled law in our State that :a municipality may be held liable for damages caused by the creation and maintenance of a nuisance, regardless of whether the city is performing a governmental or non-governmental function. City of Fort Worth v. Crawford, Tex.Com.App., 74 Tex. 404, 12 S.W. 52; City of Fort Worth v. Wiggins, Tex.Com.App., 5 S.W.2d 761; Parson v. Texas City, Tex.Civ.App., 259 S.W.2d 333, writ ref. However, as stated in Gonzalez v. City of El Paso, Tex.Civ. App., 316 S.W.2d 176:

“It has often been held that a negligence case cannot be converted into a nuisance merely by so pleading. In Walker v. City of Dallas, Tex.Civ.App., 278 S.W.2d 215, 218, this doctrine is well expressed in the following language: “The principle of nonliability of a city for the negligent acts of its employees while engaged in a governmental function cannot be eliminated by merely pleading that -such negligent acts constituted a nuis.ance.’ ”

In Parson v. Texas City, supra, collision of two cars at a street intersection was caused by the fact that a traffic signal light was out of order, showing green go-ahead signals simultaneously to traffic approaching from all four directions. The point before the appellate court, on an appeal from a summary judgment for the city, was whether the continued maintenance of the defective traffic light for several days created a nuisance. The Court of Civil Appeals, in an opinion discussing Texas and out of state authorities, held that it did not, and affirmed the trial court’s judgment. The Supreme Court un-qualifiedly refused a writ of error. We quote briefly from the opinion as follows: (259 S.W.2d p. 336)

“We believe that the weight of authority in this state and other jurisdictions is to the effect that to constitute a nuisance the danger must be inherent in the thing itself, beyond that arising from negligence in its use, and are constrained to hold that the maintenance of the signal light in the condition described in appellants’ pleadings did not constitute a nuisance making the City liable, and that the court did not err in sustaining appellee’s motion for summary judgment.”

In the present case, there was no pleading or showing of proof by affidavit or otherwise that the tear gas gun or the shell used therein was in any way defective or inherently dangerous when properly used. It is manifest from the record that it was the way in which the gun was used, and not danger inherent in the gun, that is complained of as resulting in plaintiff’s injuries. Actually, plaintiff’s pleading in this instance is one of negligent entrustment, and not of nuisance.

Appellant’s third point is overruled.

Judgment affirmed.


author: BELL, Chief Justice.

text:
    AMERICAN SECURITY LIFE INSURANCE COMPANY, Appellant, v. M. D. ANDERSON HOSPITAL AND TUMOR INSTITUTE, Appellee.
    No. 14826.
    Court of Civil Appeals of Texas. Houston.
    Sept. 22, 1966.
    Rehearing Denied Nov. 3, 1966.
    Second Motion for Rehearing Denied Nov. 17, 1966.

      John B. Henderson, Jr., Marshall, Joe Bailey Humphreys, Dallas, John Peace, J. B. Langham, San Antonio, for appellant.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., J. C. Davis, Malcolm L. Quick, Asst. Attys. Gen., Austin, for appellee.
   BELL, Chief Justice.

This is an appeal from an order of the trial cOurt overruling appellant’s plea of privilege to be sued in Harrison County the location of its home office. Appellee seeks to hold venue in Harris County under Subdivision 28 of Article 1995, Vernon’s Ann. Tex.Civ.St. on the theory that the loss under the hospitalization policy, for which suit is brought, occurred in Harris County.

Appellant allegedly issued two policies of insurance to Orson C. Haynes, as the insured, under the terms of which appellant agreed to pay to the insured (or the hospital if authorized by insured to do so) certain enumerated “items of hospital expense actually incurred by the insured. * * * fl

By appellee’s petition, which was in a proper manner made a part of its controverting affidavit, it is alleged that Mr. Haynes was hospitalized in the M. D. Anderson Hospital from May 29, 1963 to June 11, 1963 and from August 18, 1963 to September 17, 1963. The expenses incurred during the first period are alleged to be $724.75 and for the second period $1,156.10. It is then alleged that the insured had assigned to appellee all benefits due him under the two hospitalization policies. As a part of the controverting affidavit appellee attached copies of the two policies, of the assignment dated May 29, 1963, and the one dated August 18, 1963, a copy of the hospital bills, the one for the May 29 - June 11 period showing expenses incurred of $724.75 and the other for August 18 to September 17, showing expenses incurred of $1,156.10.

On trial business records of the hospital that were introduced showed Policy Number 104229 M-75. Also shown is an assignment to appellee by Mr. Haynes of all benefits due him for hospitalization commencing May 29. There also appear hospital .admission sheets showing Mr. Haynes’ admission to the hospital on May 29, 1963 and August 18, 1963. On each of these admission sheets is an agreement by Mr. Haynes to pay for the services to be rendered. There also appears a list of expenses incurred for the period of August 18 to September 17.

Nowhere in the statement of facts are we able to find any evidence as to any length of stay in. the hospital after the May 29 admission, nor do we find any list of any expenses in connection with such admission. We also are unable to find in the evidence any assignment of the benefits due the assured for expenses incurred in connection with the hospitalization commencing August 18. Neither does Policy Number 143349-GRB-18 which is one of the policies listed in the list of hospitalization expenses for the August 18 admission appear in the evidence.

While what purport to be copies of both policies, assignments of benefits covering both hospitalization periods, and the list of hospitalization expenses for each period were made a part of the controverting affidavit, as was appellee’s petition, the controverting affidavit was not introduced in evidence.

The result of this is that Policy Number 104229 M-7S and the assignment of benefits due Haynes under it for the admission on May 29 are in evidence. Too, while a list of expenses for the August 18 admission is in evidence, there is no assignment by Haynes to appellee of the benefits due under either policy, and since one policy is not in evidence, we do not know its provisions.

We note that the meager facts are due to the fact of deficiencies in the hospital file that the witness brought to court.

Subdivision 28 of Article 1995 under which appellee seeks to hold venue in Harris County reads, insofar as here pertinent, as follows: “Suit on policies may be brought * * * in the county where the loss has occurred * * (Emphasis ours)

The hospital expenses, if any are sufficiently shown to have been incurred as a result of the May 29 admission, were incurred in Harris County where appellee is located. It is appellee’s position that this is a loss within the meaning of the portion of Subdivision 28, Article 1995 above quoted. Appellant says there is no loss to Haynes until such time as he has paid the expense, and there is no loss under the policy so far as appellee is concerned because it is not a party to the policy; so the above venue statute is not applicable under the facts of this case. Appellant says its policy indemnifies against loss. It equates the meaning of the term “loss” as used in the venue statute with the term “loss” as used in indemnity insurance policies.

We are of the view that under the part of the subdivision above quoted the venue facts are that the defendant is an insurance company; that the suit is on the insurance policy; and that the loss covered by the policy occurred in the county where the suit is brought.

It is proven that the two policies of insurance were issued though we have only one in evidence. It is also proven that appellant is an insurance company. We must decide whether the suit is on Policy Number 104229 M — 75 and whether a loss occurred in Harris County within the meaning of the above venue statute.

We are of the view that this is a suit on the policy. It is true that ap-pellee sets out what is denominated an assignment of benefits that have accrued to the named assured under the policy. If there were not the provisions in the policy, which we will particularly notice, the suit would be on the assignment and not the policy. However, the policy is not as to hospitalization benefits an indemnity one against loss. It contains an express obligation to pay the insured for enumerated hospital expense incurred and expressly provides that such benefits will be paid “the Hospital if authorized by Insured to do so.” The assignment by the insured is but his authorization to the insurer to pay the benefits to the hospital. This authorization, provided for in the policy, then gives rise to the obligation on the part of the insurer to pay to the hospital. This obligation is created by the policy for the benefit of appellee hospital. The suit is therefore one on a policy of insurance.

The term “loss” as used in the pertinent clause of Subdivision 28, Article 1995 is not limited in its meaning, as appellant contends, to a situation where the insured pays his medical expenses and then seeks reimbursement from the insurer. What the statute is doing is fixing venue as to various types of risks insured against by the kind of insurance companies specified. Loss as there used means that the event has happened that gives rise to liability assumed under the policy. The county where the event occurred that gives rise to liability is the county where the loss occurred. We think this meaning of loss is sound in reasoning and is supported in principle by the case of Manhattan Life Ins. Co. v. Stubbs, 234 S.W. 1099, 1106-1107 (Tex.Com.App.) and 33 Corpus Juris, Sec. 648, p. 7, 45 C.J.S. Insurance § 981.

The statement of facts shows the admission of Mr. Haynes on May 29, 1963. It does not show how long he was in the hospital. The venue fact, however, is not the amount of the loss but the fact of some loss. Gomillion v. Lingold, 209 S.W.2d 205 (C.C.A.) n. w. h. The fact of the incurring of hospital expense is, however, established by an admission in appellant’s brief in this Court by the statement that Mr. Haynes was admitted to appellee hospital for treatment “from May 29, 1963 to June 11, 1963.” We are authorized to accept as true any statement of fact made in appellant’s brief that is unchallenged. Rule 419, Texas Rules of Civil Procedure. Such statement is unchallenged. On the admission sheet Mr. Haynes agreed to pay for expenses incurred. We know from the statutes that expenses were incurred. Article 2603e Vernon’s Annotated Texas Statutes under which appellee hospital was created in Section 6 states the provisions of Article 3196a Vernon’s Annotated Texas Statutes shall apply as to admission of patients. This last mentioned statute deals with admissions of patients to State hospitals. A non-indigent patient, so far as here material, is one who possesses some property out of which the State may be reimbursed. It also provides the State shall have the right to reimbursement. Insurance Policy Number 104229 M-75 is property specifically dedicated to the payment of hospital expenses incurred by Mr. Haynes. The appellee’s employees had the statutory duty to charge for services rendered, and we must presume they performed their duty. We judicially know under such facts that there would at least be the expense for room and meals.

As to the claim for expenses incurred for the period of hospitalization from August 18, 1963 to September 17, 1963, we find in evidence a copy of a report on hospital services. It contains a reference to Policy Number 104229 M-75 and also a statement of the expenses incurred. There is also a copy of a claim for expenses covering said period from ap-pellee hospital. These copies were admitted under Article 3737e, Vernon’s Annotated Texas Statutes. This evidence, we think, is sufficient to show that as to the second period of hospitalization the suit by appellee is one on the policy. While we do not find an instrument of authorization for appellant to pay appellee, there is nothing in the policy requiring that authorization be in writing. Fürther, whether authorization was in fact given so that appellee can ultimately recover goes to the merits. It is the claim of the right to recover on the policy that is the venue fact. Golden West Life Insurance Co. v. Vice, 345 S.W.2d 849 (C.C.A.) n. w. h.

Affirmed.

On Motion for Rehearing

We would only add to our original opinion that we are of the view that whether there is actual liability under the policy sued on is a matter to be determined on the merits. Under Subdivision 28 of Article 1995 it is not necessary to prove prima facie in the venue hearing that there is in fact liability but that the event giving' rise to the claim of liability arose in the county where suit is brought. Darnell v. Southwestern American Insurance Co., 226 S.W.2d 239 (C.C.A.), n. w. h.; Pan American Insurance Co. v. White, 321 S.W.2d 337 (C.C.A.), n. w. h.

Motion for rehearing overruled.


author: RENFRO, Justice.

text:
    HAR-CON ENGINEERING, INC., Appellant, v. N. E. GUTHRIE, Jr., d/b/a Guthrie Construction Company, Appellee.
    No. 16763.
    Court of Civil Appeals of Texas. Port Worth.
    Oct. 14, 1966.
    Rehearing Denied Nov. 18, 1966.
    Prothro & Sellers, and Oliver Kelley, Wichita Falls, for appellant.
    Short & Smith, and Ray Gene Smith, Wichita Falls, for appellee.
   OPINION

RENFRO, Justice.

Suit was brought by N. E. Guthrie, Jr., d/b/a Guthrie Construction Company, against Har-Con Engineering, Inc., for breach of contract.

Plaintiff alleged he, as General Contractor, and defendant entered into an agreement whereby defendant agreed, as subcontractor, to do the mechanical work on Building No. 982 at Sheppard Air Force Base for the sum of $31,890.00; that defendant breached the contract and failed to perform, whereupon plaintiff entered into a contract with another subcontractor to perform the mechanical work. Damages were sought against defendant for the difference between defendant’s bid and the next lowest bid. Plaintiff also sought special damages.

Defendant in its pleading admitted making the agreement but plead that the agreement was contingent upon plaintiff’s also awarding it a subcontract on Building No. 1040 on which plaintiff had another and different contract.

The jury found that (1) the parties did agree that defendant would perform the mechanical work on Building No. 982 for the sum of $31,890.00, (3) the agreement was not conditioned upon the awarding of another contract on Building No. 1040, and (2) plaintiff sustained damages in the sum of $4,960.00 by reason of defendant’s failure to perform.

Judgment based on'the verdict was rendered for plaintiff. Defendant appealed.

The defendant excepted to issue No. 1 on the ground there was no evidence and insufficient evidence to support an affirmative finding. No other objections were made to the charge as submitted and no other issues were requested.

On appeal defendant contends in point one judgment should have been rendered for it because there was insufficient evidence of the terms of the contract.

Both by pleadings and evidence defendant admitted the making of the agreement. By pleadings and evidence the defendant offered as defense the claim that the agreement was contingent on plaintiff’s awarding it also an additional contract on an entirely different job.

Plaintiff testified unequivocally that the agreement on No. 982 was separate and independent of any other contract and that at no time did he and defendant discuss or agree that the contract on No. 982 was contingent upon defendant’s obtaining a subcontract on Building No. 1040.

The jury believed plaintiff. The evidence is sufficient to support that finding. Point one is overruled.

In point two defendant contends there was insufficient evidence upon which the jury could find special damages.

Defendant did not by pleadings, exceptions or evidence challenge the right of plaintiff to recover special damages and did not object to the submission of the damage issue in any respect.

The record shows that the only complaint defendant has made concerning special damages is the one set out in its point of error claiming insufficiency of the evidence.

Hence, the only point before us on special damages is defendant’s contention there was insufficient evidence of special damages. Our decision, therefore, is limited to the narrow question of whether or not there was sufficient evidence to uphold a finding that plaintiff did sustain special damages as a result of defendant’s breach of contract.

Plaintiff testified at length as to the various extra expenses incurred by him as a result of defendant’s breach and the resulting delay in beginning the work on No. 982. His testimony was not contradicted.

His testimony was sufficient to sustain a finding that he did sustain special damages.

Under the record as presented, point two must be overruled.

Affirmed.


author: RUDDY, Judge.

text:
    The PRUDENTIAL INSURANCE COMPANY OF AMERICA, a Corporation, Plaintiff, v. Malinda NEWSOM, Defendant-Appellant, and Lionel Newsom, a/k/a Lonel Newsom, Defendant-Respondent.
    No. 32432.
    St. Louis Court of Appeals. Missouri.
    Oct. 18, 1966.

      Ellis S. Outlaw, St. Louis, for defendant-appellant.
    Morris M. Hatchett, St. Louis, for defendant-respondent.
   RUDDY, Judge.

Defendant, Malinda Newsom, wife of Lawson J. Newsom, deceased, and Lonel Newsom, son of decedent, Lawson J. New-som, were rival claimants of the proceeds ($1018.30) of a certificate of life insurance issued under a group policy by plaintiff, Prudential Insurance Company of America. Plaintiff filed a “Petition for Interpleader” joining both of the claimants as defendants and obtained an order from the trial court requiring the rival claimants to interplead their claims to the fund remaining on deposit in the registry of the court. Plaintiff deposited the sum of $1018.30 less $191.10 allowed it as expenses and attorneys’ fees and was discharged from further liability. After a hearing on the interpleaded claims the court found in favor of Lonel Newsom and entered judgment accordingly. Malinda Newsom appealed.

Malinda Newsom claimed the fund on deposit by virtue of the provisions of an alleged last will and testament of her deceased husband, Lawson J. Newsom. Lonel Newsom claims the fund by reason of being named the designated beneficiary in said certificate of insurance. The respective claims were submitted to the trial court on the pleadings and an agreed statement of facts. We think the following properly summarizes all of the matters submitted to the trial court.

Lawson J. Newsom was employed by the Pullman Company as a porter prior to his death. On July 1, 1958, while so employed, the Prudential Insurance Company of America issued to him its certificate of insurance under a Group Policy issued to the Pullman Company. Among other benefits provided in the certificate of insurance issued to the aforesaid employee was a provision for death benefits which read:

“ * * * If the Employee dies while insured for Employee Group Life Insurance under the Group Policy, the amount of Employee Group Life Insurance then in force on the life of the Employee will be paid to the Beneficiary.”

When the aforesaid certificate of insurance was issued to the employee he named Georgia Newsom, his then wife as beneficiary. It appears that his wife, Georgia Newsom, died sometime prior to May 11, 1964.

Another provision contained in the certificate of insurance was the following:

“BENEFICIARY. — The Employee may, from time to time and without the consent of the Beneficiary, change the Beneficiary by filing written notice of the change through the Policyholder on a form furnished by or satisfactory to the Insurance Company, whereupon an acknowledgement of the change will be furnished the Employee for attachment to this Certificate. * * * When a new designation takes effect, any interest of any previous Beneficiary shall thereupon cease.
⅜ ⅜ ⅜ ⅜ ‡ ⅜ '
“Any amount of Employee Group Life Insurance for which there is no Beneficiary at the death of the Employee will be payable to the estate of the Employee.”

On May 11, 1964, Lawson J. Newsom, the employee, executed a request for change of beneficiary from Georgia New-som to “LONEL NEWSOM Son.” Pursuant to said request for change of beneficiary a new certificate of insurance was issued to Lawson J. Newsom by the insurer designating Lonel Newsom, Son, as beneficiary for death benefits.

Lawson J. Newsom, after the death of his first wife Georgia, married defendant, Malinda Newsom, who was his wife on the date of his death which occurred October 16, 1964.

On August 10, 1960 Lawson J. Newsom executed a “Last Will and Testament” which provided in part as follows:

“SECOND. All the rest and residue of my estate, whether real, personal or mixed and wherever situate, including all cash in the Jefferson Bank and Trust Company and insurance from the Pullman Company, I give, devise and bequeath to my wife, Malinda Newsom.”

On March 19, 1965 the Probate Court of the City of St. Louis, Missouri entered its order refusing Letters of Administration in the Estate of “Lawson Newsom a/k/a Lawson J. Newsom” giving as its reasons for refusing the Letters of Administration that Malinda Newsom claimed to have discovered additional assets belonging to the decedent, to wit:

“ ‘Whatever interest, if any, the deceased had in a Prudential Insurance Company of America, Policy No. G-40626, Certificate No. [ XXX-XX-XXXX ], in the sum of $1,000.00 (issued in the name of Lawson J. Newsom).’”

It was agreed that part of decedent’s funeral bill was paid by the wife, Malinda Newsom, and the balance was paid by the son, Lonel Newsom.

Malinda Newsom in her points relied on and in her argument in her brief says,

“ * * * The court will note that at the time of the change of beneficiary, from his deceased wife, Georgia to his wife’s son Lonel Jr., the deceased had just come out of the Hospital from a prolonged illness on May 11, 1964, and at the time was not in a physical condition to be fully conscious of what he was doing and obviously he signed it under ‘Duress or undue Influence’ * *

There is not one bit of evidence in the record before us that bears upon or is in any way related to the decedent’s physical or mental condition at the time he executed the change in beneficiary from his former wife Georgia to his son Lonel Newsom; nor is there one bit of evidence to support the apparent contention that he signed said change of beneficiary under duress or undue influence.

Another contention made by Malinda Newsom is that “ * * * Since under the law, the husband cannot will away anything from the surviving wife. The designation of Lionel J. Newsom, Jr. as beneficiary is null and void and of no effect.” She cites the case of Smith v. Smith, 327 Mo. 632,. 37 S.W.2d 902 in support of this contention. We confess we are unable to understand the meaning of the first sentence quoted above. We are aware that a surviving wife has certain statutory rights that cannot be defeated by the husband. However, such, rights are not an issue in this case. The case of Smith v. Smith, supra, was a suit to contest a will. In that case the court held that in such a suit brought by a party in interest, the petition stating a cause of action, it cannot be dismissed without an adjudication upon the will. We do not have a will contest before us.

The sole issue before us for determination is whether the insured, after he has; made an apparent attempt in his will to bequeath to his wife, Malinda, the death benefits of his insurance certificate, may thereafter change the beneficiary. We need not determine whether the provision in the will effected a change of beneficiary to Malinda Newsom. In this connection we point out that no attempt was; made by the testator to comply with the terms of the policy regulating the change of beneficiary. We will assume, without so ruling, that testator by his will, effectively made his wife, Malinda, the beneficiary of the insurance benefits at the time he executed the will. Nevertheless, we think that the insured had the right after executing the will to again change the beneficiary.

An insurance policy is a contract and should be construed according to the rules applicable to contracts, even as to the provisions in the policy designating the beneficiary and the right to change the beneficiary and this is also true of a certificate issued under a contract of group life insurance. The court will be governed by the language of the policy and the intention of insured as indicated therein. Sims v. Missouri State Life Ins. Co., 223 Mo.App. 1150, 23 S.W.2d 1075, 29A Am.Jur. Insurance, Section 1761, p. 836. It has been said that the language of the policy designating the beneficiary is to be treated as though it were of testamentary character, in that it is to receive, as nearly as possible, the same construction as if it were used in a will. Sims v. Missouri State Life Ins. Co., supra. For some reason, not understandable to us, Malinda Newsom takes this to mean that when the insured by his will made her the beneficiary of the insurance proceeds, he thereby revealed an intention that she have the proceeds, and having done so, testator thereafter, cannot change the beneficiary in the manner shown in this case. What is overlooked by Malinda Newsom is that the rule provides that the language of the policy designating the beneficiary is to be treated as though it were of testamentary character. The language of the certificate of insurance under review here is clear and unambiguous as to who is to receive the proceeds of the insurance at the death of the insured. It clearly provides that the proceeds will be paid to the beneficiary named in the certificate of insurance at the time of the death of the insured. This language needs no rule of construction to determine its meaning. Also under the language of the insurance certificate the insured enjoyed the privilege of changing the beneficiary at will without the consent of the previous beneficiary. He needed only to substantially comply with the provisions of the certificate. This he did.

The naming of a beneficiary in the certificate of insurance issued by the plaintiff herein was but an expression of the intention and will of the insured and was revocable and subject to change at any time. Malinda Newsom did not enjoy any vested right in the insurance certificate and the insured could change the beneficiary, as we have pointed out, at any time unless the laws of this state or the terms of the certificate of insurance itself prohibited or restrained the right of the insured to change the name of the beneficiary. We know of no such law or language in the certificate that would so prohibit the insured from making the change in the name of the beneficiary. He could change the name of the beneficiary with the same freedom as he could have changed the name of a legatee or distributee in his will by the making of a new will before the first one took effect. Persons v. Prudential Ins. Co. of America, Mo., 233 S.W.2d 729; Postal Life & Cas. Ins. Co. v. Tillman, Mo.App., 287 S.W.2d 121; Bennett v. Bennett, 70 Ohio App. 187, 45 N.E.2d 614; and 29A Am.Jur. Insurance, Section 1640, p. 721—Section 1676, p. 754.

We rule that Lawson J. Newsom, the deceased, had the right to change the beneficiary of his insurance certificate under date of May 11, 1964, and to name Lonel Newsom, his son, as beneficiary thereof. The trial court correctly found that defendant, Lonel Newsom, was entitled to the sum of money on deposit in the registry of the court paid there by the plaintiff herein. The judgment of the trial court is affirmed.

ANDERSON, Acting P. J. and LACK-LAND H. BLOOM, Special Judge, concur.


author: BRADY, Commissioner.

text:
    Carl V. KERSTING et al., Plalntlffs-Appellants, v. CITY OF FERGUSON, Missouri, a Municipal Corporation et al., Defendants-Respondents.
    No. 32262.
    St. Louis Court of Appeals. Missouri.
    Oct 18, 1966.
    Lester W. Duggan, Jr., Florissant, for plaintiffs-appellants.
    Carleno & Nick, Ferguson, for defendants-respondents.
   BRADY, Commissioner.

This case comes to the writer upon recent reassignment. Plaintiffs’ amended petition alleged that they are representatives of a class of resident taxpayers and property owners in Ferguson, Mo., and that they are proceeding under the provisions of our Statutes relating to declaratory judgment actions. (See § 527.010 et seq., R.S.Mo.1959, V.A.M.S.) The theory of plaintiffs’ action is that the Charter of the City of Ferguson, Mo., is void, totally and as to certain individual sections thereof, as violative of the constitution of this State, and that certain acts of the City Council are void as violative of certain provisions of the Charter of the City and the Statutes of this State. The trial court sustained defendants’ motion to dismiss and plaintiffs perfected their appeal in the Supreme Court of this State. The case was transferred to this court on the grounds that the motion to dismiss raised both constitutional and non-constitutional issues, and since “ * * * the record does not indicate which issue was decided, it will be deemed that the trial court ruled the case oh applicable noncon-stitutional grounds and that the constitutional grounds were avoided in the trial court and are therefore not in the case on appeal. * * * ” (Mo., 388 S.W.2d 794, 1. c. 796)

We are first faced with the disposition of the defendants’ motion to dismiss this appeal on the grounds that the plaintiffs’ brief fails to comply with the provisions of Civil Rule 83.05(a), (c), (e), V.A.M.R. It is the defendants’ position the plaintiffs’ brief is totally violative of Civil Rule 83.05 (e), supra, in that none of the points relied upon state what actions or rulings of the trial court are claimed to be erroneous nor why it is contended the trial court was wrong in any ruling it made, but merely consists of abstract statements of law which are in no way related to any action or ruling of the trial court. In this respect it is to be noted that the appellants’ points as stated in their brief are couched in language similar to the following examples: "Point V. * * * 2. The OFFICERS of a municipality, as distinguished from persons holding administrative POSITIONS, are required to be residents of the State for one year next before appointment or ■election. The public policy of this State ■obviously demands this requirement. * * * 4. Officers of the City must have some definite tenure of office (Tr. 24, 25). * * * 6. The power to tax shall not be surrendered, suspended or contracted away. Taxes may be levied and collected for public purposes only and shall be uniform upon the same class of subjects and shall be payable during the fiscal year or calendar year in which the property is assessed. All laws exempting property from taxation not exempt by the Constitution shall be void. All persons are entitled to equal rights and opportunity under the law (Tr. 32, 35) * * ⅜ »

The defendants place their main reliance upon the failure of the plaintiffs to comply with Civil Rule 83.05(c), supra, in that the plaintiffs’ brief does not even contain a page entitled “Statement of Facts”, and that nowhere in plaintiffs’ brief does there appear any statement which could be fairly •construed as “ * * * The fair and concise statement of the facts * * * in the form of a statement of the facts relevant to the questions presented for determination. * * *" With regard to this matter it should be noted that the amended petition is lengthy and involved. It occupies approximately seventeen pages of the transcript and consists of two Counts. Count I contains seven paragraphs, one of which is further divided into eighteen subpara-graphs. The second Count consists of ■eighteen separate paragraphs most of which ■contain at least two separate and distinct allegations of wrongful action by the City “Council.

Faced with the defendants’ motion to dismiss this appeal, the plaintiffs included with their reply brief a motion to amend their original brief by adopting the Statement of Facts contained in the defendants’ brief árid incorporating that statement into the plaintiffs’ brief by specific reference thereto the same as if it were fully set forth therein. The plaintiffs also moved that we allow them to further amend their brief by inserting in their brief “ * * * following the words ‘Points Relied On’ the following: ‘The trial court erred in sustaining the Respondents’ Motion to Dismiss Counts I and II of the amended petition, and Appellants offer the following in support of that allegation’: * * *.” These motions were taken with the case upon submission and are now for our ruling.

The concern repeatedly voiced by the appellate judiciary regarding obedience to Rule 83.05, supra, is based upon an appellant’s duty (1) to the court, and (2) to opposing counsel. With regard to his first duty it has been said: “ * * * The rules of appellate practice in hand are simple and plain. They fill no office of mere red tape, or as a show of surface routine. To the contrary, they have substance, and carry on their face the obvious purpose to aid appellate courts in getting at the right of a cause. * * * ” Sullivan v. Holbrook et al., 211 Mo. 99, 109 S.W. 668, 1.c. 670. Considering an appellant’s second duty, it should be remembered that “ * * * A just rule, fairly interpreted and enforced, wrongs no man. Ostensibly enforced, but not, it necessarily wrongs some men viz., those who labor to obey it— the very ones it should not injure. If the rules in question stand for something and are ever to be enforced, they should be put in motion in this case. * * * ” Sullivan v. Holbrook, supra. The concern voiced by Civil Rule 83.09, V.A.M.R., providing for suspension of the rule when good cause is shown or the interest of justice requires has caused appellate courts to be hesitant about enforcement. Yet even when faced with the motion to dismiss plaintiffs’ counsel made no effort to show good cause why this appeal should not be dismissed. Neither does any appear from the record. We have satisfied ourselves that the interest of justice does not require it.

We have now reached the point where the leniency we have evidenced toward the enforcement of Civil Rule 83.05, supra, is in danger of being misinterpreted as license and has reached such proportions that it is now thwarting both the efforts exerted by the courts to enforce the rule and the desire of more competent counsel to obey it. No doubt the latter find it difficult to understand why they are urged to obey a rule we allow less conscientious counsel to violate with impunity.

The instant case is but one example of how this hesitancy to dismiss has been seized upon and results in a flagrant flouting of rules which many years after their adoption have evidently still to be read by some members of the Bar. Here the plaintiffs’ counsel does not even include a page entitled “Statement of Facts” in his brief. When the necessity for such a statement was called to his attention he made no effort on his own to correct his error but in a halfhearted manner almost contemptuous of our rules, asks this court for permission to amend his brief by lifting bodily and in toto from the defendánts’ brief that which was missing from his own. To approve such a request would be to contort Civil Rule 83.05, supra, into the exact opposite of what it says, what it means, and what it was designed to accomplish. It would also effectively destroy the rule. What then could the court do when, as here, not even the defendants’ statement of facts is a complete and faithful compliance with Civil Rule 83.05(c). Should we then return to the plaintiffs’ counsel, absolve him from blame for ignoring his original obligation, and ask him to supplement defendants’ statement with additional facts of his own? If we would do so it would not be long before the respondent would have the primary responsibility to comply with Civil Rule 83.05 (c) and this court would have become an accomplice in what would amount to a total perversion of our own rules.

It is useless to attempt to make the rule any clearer. In opinion after opinion members of the appellate judiciary have plainly and painstakingly explained and by example stated exactly what is required to comply with a rule that is written in language any school boy can understand. No useful purpose can be served by repeated warnings to the Bar. Ambrose v. M.F.A. Co-Operative Ass’n of St. Elizabeth, Mo., 266 S.W.2d 647, was handed down over twelve years ago and even so that opinion was far from the first expression of judicial concern about this matter. Witness Sullivan v. Holbrook, supra, handed down in 1908. The competent practitioner is well aware of the requirements of the rule and of our concern that they be met. Those in the legal profession who persist in disobedience are evidently totally unfamiliar with the case law of this State and are fixed in their determination to remain so.

The time for more drastic action has long since passed. Should our leniency continue we would be as guilty of destroying the effectiveness of a just and reasonable rule as are offending counsel. If the rule is to remain in effect it should be enforced; if it is not to be enforced then it should be abolished. In view of the continued unsatisfactory state of many of the briefs we receive and the volume of appellate work in this State, absent our action in this and similar cases, appellate procedure in Missouri may reach the chaotic state Mr. Justice Davis predicted it would reach in Texas unless a similar rule was enforced. See his dissent in the City of Houston v. Dancer, 377 S.W.2d 858, l.c. bottom of the first column p. 862. We must not allow continued disobedience to our rules to place “things” in Missouri in a similar geographic configuration.

The appeal is dismissed for failure to comply with Civil Rule 83.05, supra. Plaintiffs’ motion is overruled. Costs are to be taxed against the plaintiffs.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The appeal is dismissed for failure to comply with Civil Rule 83.05, supra. Plaintiffs’ motion is overruled. Costs are to be taxed against the plaintiffs.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.


author: CLEMENS, Commissioner.

text:
    BARCLAY INVESTMENT CORPORATION, a Corporation, and Maplewood Finance Company, a Corporation, d/b/a The Barclay House, Plaintiffs-Appellants, v. Mr. Robert B. LAMKIN and Mrs. Robert B. Lamkin, Defendants-Respondents.
    No. 32259.
    St. Louis Court of Appeals. Missouri.
    Oct. 18, 1966.
    Green & Raymond, by James J. Raymond, St. Louis, for appellants.
    Armstrong, Teasdale, Kramer & Vaughan, by Charles E. Dapron and Fred Leicht, Jr., St. Louis, for respondents.
   CLEMENS, Commissioner.

Lamkin had already sued Barclay, his corporate landlord, when Barclay filed this separate suit against Lamkin and his wife. The trial court dismissed Barclay’s petition because Barclay had violated the compulsory counterclaim rule. Barclay has appealed. The down-to-brass-tacks issue is this: Can a defendant get away from the compulsory counterclaim rule by filing a separate suit against the plaintiff and his wife?

The present corporate plaintiffs jointly own and operate a high-rise apartment called Barclay House. (We refer to them in the singular as Barclay.) The present defendants, Mr. and Mrs. Robert B. Lam-kin, lived in a $750-a-month apartment in Barclay House.

In 1963 Robert Lamkin signed a three-year lease for the apartment for his and his wife’s residence. She did not sign the lease. After furnishing the apartment and moving in, Mr. Lamkin found that the heating and cooling systems didn’t work. He says this and other defects made the apartment unlivable. Lamkin couldn’t settle his differences with Barclay, so he sued Barclay in the circuit court of St. Louis County, asking for a declaratory judgment and other relief. He pleaded his lease, the continuing defects which made the apartment unlivable, water damage to his drapes and carpeting, his payment of part of the rent and his cancellation of the lease. He asked for a judicial declaration that Barclay had broken the lease, that he was freed from its terms, and that he had suffered actual and punitive damages. Mr. Lamkin filed his suit July 1, 1964. Then, on July 30, 1964, Barclay filed the present separate suit against both Mr. and Mrs. Lamkin.

By Count I of Barclay’s petition it seeks to recover $4,500 from Mr. Lamkin for unpaid rent and attorney fees under his lease. Count II is aimed only at Mrs. Lamkin. Barclay says the leased apartment was her necessary place of abode and it relies on §§ 451.250 and 451.260, V.A.M.S., which provide generally that a wife’s separate property may be levied on for payment of a husband’s debts when those debts were incurred for her necessities. Count II is derivative: Barclay prays that if it recovers against Mr. Lamkin, execution be issued against Mrs. Lamkin’s separate property.

The Lamkins moved to dismiss Barclay’s petition, contending that the prior declaratory judgment suit filed by Mr. Lamkin is the proper forum for adjudicating the claims Barclay is now asserting against both Mr. and Mrs. Lamkin. The Lamkins point to Civil Rule 55.45(a), V.A.M.R., the compulsory counterclaim rule, and Civil Rule 55.50, V.A.M.R., which provides for bringing in an additional party to a counterclaim. As said, the trial court dismissed Barclay’s second amended petition for its failure to comply with the compulsory counterclaim rule. Barclay has appealed, contending that there was “a lack of mutuality or identity of parties in the two actions” and that it cannot be forced to counterclaim against both Mr. and Mrs. Lamkin in the prior action brought against Barclay by Mr. Lamkin alone. That is the issue on this appeal.

Civil Rules 55.45(a) and 55.50, V.A. M.R., decide the issue. The first declares:

“(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of filing such pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require the presence of third parties of whom the court cannot acquire jurisdiction * *

Admittedly, both claims arise out of the same transaction — the lease. The rule, however, does limit Barclay’s obligation to file a counterclaim to those occasions where the court can acquire jurisdiction over the third party, Mrs. Lamkin. Civil Rule 55.50 says:

“Court Shall Order Parties Made Defendants When Required for Granting of Complete Relief. When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants as provided in these rules if jurisdiction of them can be obtained.”

Barclay does not challenge the court’s ability to obtain jurisdiction over Mrs. Lamkin in the first suit. Indeed, the court has done so in this second suit where Barclay has made her a co-defendant. (Compare the case of Rape v. Mid-Continent Building Co., Mo.App., 318 S.W.2d 519[2], which holds in effect that the court’s inability to get jurisdiction over a third party must appear affirmatively.)

Barclay concedes that its claim against Mr. Lamkin, standing alone, comes within the compulsory counterclaim rule. It also concedes that it could bring in Mrs. Lamkin as an additional party to a counterclaim, but Barclay insists that it may not be compelled to do this. We disagree. This, because of the purpose of the counterclaim rule, its language, and its application in other cases.

In the Rape case, supra, at headnote [3] the Kansas City Court of Appeals, by Judge Cave, said:

“The clear intent and purpose of this statute is to discourage separate litiga-tions covering the same subject matter, and to require their adjudication in the same action, and it is a means of bringing all logically related claims into a single litigation * * '* [citing cases].”

Rule 55.45(a) declares that a relevant counterclaim shall be filed. Rule 55.50 says the court shall order necessary, available parties brought in. The compulsory counterclaim rule would indeed be an ineffective instrument if a defendant were allowed to choose between having one lawsuit or two. The rule has been so applied in similar situations.

Williams v. Kaestner, Mo.App., 332 S.W.2d 21, concerns a motorist who collided with a taxi. The taxi driver sued the motorist for personal injuries and the defendant motorist did not counterclaim. Later, the owner of the taxi sued the motorist for property damage and the motorist then counterclaimed for his own damage. The taxi owner contended that the motorist should have asserted his counterclaim in the taxi driver’s prior suit, in which the motorist could have brought in the taxi owner as an additional party to the counterclaim. The trial court dismissed the motorist’s belated counterclaim and we affirmed. Even more like our case, in the Rape case, supra, a homeowner sued two material men for failure to comply with their contract to furnish shrubbery. The material men then filed a separate suit for a mechanic’s lien against the homeowner and a mortgagee bank. The trial court dismissed the second suit for the material men’s failure to comply with the counterclaim rule. The Kansas City Court of Appeals affirmed, holding that if the bank’s presence was necessary for granting complete relief in the first suit the trial court should order it brought in under Civil Rule 55.50.

Considering the purpose of the compulsory counterclaim rules announced in the Rape case, considering the mandatory language of the rules, and considering how they were applied in the Williams and Rape cases, we rule that Barclay must seek its relief by counterclaiming in the original action brought by Mr. Lamkin, and may not do so in the present independent action.

In reaching this conclusion we have weighed Barclay’s arguments. They are not persuasive. Barclay first argues that for a compulsory counterclaim situation to arise there must be a “mutuality and identity” of the parties and subject matter. It reaches this conclusion by roundabout reasoning. Barclay cites State ex rel. Buchanan v. Jensen, Mo., 379 S.W.2d 529, 1. c. 531, where the court held that a defendant must file a counterclaim “under the penalty of waiving it or being estopped to assert it elsewhere.” Barclay seizes the single word estopped” and then cites Jackson v. Whitaker, Mo.App., 386 S.W.2d 657, 1. c. 658, which held that the defense of estoppel by judgment required an identity of persons and subject matter. The case is not in point.

Next, Barclay cites Sturdivant Bank v. Stoddard County, 332 Mo. 568, 58 S.W.2d 702, 704, which held in 1933 that a counter-claimant must show a mutuality and identity of the parties and subject matter. That opinion was written before the adoption of Section 73 of the 1943 Civil Code (now § 509.420, V.A.M.S., and Civil Rule 55.45(a), V.A.M.R.), by which counterclaims that had been permissive became compulsory. State ex rel. Mack v. Scott, 241 Mo.App. 674, 235 S.W.2d 106 [8-10].

Last, Barclay cites Powell v. Downing, Mo.App., 225 S.W.2d 952, and Davison v. Farr, Mo.App., 273 S.W.2d 500, for the proposition that a counterclaim may not be asserted for or against two partners where only one partner is a party to the suit. Both cases went to trial without any attempt to bring in the other partner as a party. Neither case discussed the compulsory counterclaim rule nor the rule for bringing in additional parties to a counterclaim. Barclay’s arguments do not sway us from the clear mandate of the compul sory counterclaim rule.

Other issues are raised in the briefs: whether there is a proper joinder of parties and subject matter in Barclay’s petition (a point that the Lamkins have abandoned) ; whether the amount sought by Barclay is for necessities furnished Mrs. Lamkin; and whether Barclay must specify Mrs. Lamkin’s separate property. Since the petition was properly dismissed, we will not rule these issues; they may be fully developed and ruled if Barclay presents a counterclaim and brings Mrs. Lamkin into the original action.

We hold that Barclay’s present claims against Mr. and Mrs. Lamkin are the proper subjects of a counterclaim in Mr. Lam-kin s original suit and cannot be brought by this separate action. The trial court correctly dismissed Barclay’s petition, and the judgment is affirmed.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.

WOLFE, P. J., ANDERSON and RUDDY, TJ., concur.