author: LANGDON, Justice.

text:
    Charles SATTERFIELD, Appellant, v. UNITED AUTO SUPPLY, INC., et al., Appellees.
    No. 16878.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 19, 1968.
    Rehearing Denied Feb. 16, 1968.

      Hill, Paddock & Street, and John G. Street, Jr., Fort Worth, for appellant.
    Michael H. Sebastian, Dallas, for appellee Billy John Marshall.
    Simon & Simon, and Henry W. Simon, Jr., Fort Worth, for appellee Jess Satter-field.
   OPINION

LANGDON, Justice.

This is a personal injury suit brought by a father, appellee Jess Satterfield, against his son, appellant Charles Satterfield, and United Auto Supply, Inc., and Billy John Marshall, arising out of a two-car accident on the Waco highway south of Burleson, Texas, between an automobile owned by the father and driven by the son, in which the father was also riding, and a pickup truck owned by United Auto Supply, Inc., and driven by Billy John Marshall. The court found as a matter of law, that the plaintiff, Jess Satterfield, and the defendant, Charles Satterfield, were, at the time in question, engaged in a joint venture. Upon a jury verdict finding both drivers guilty of ordinary negligence, which was a proximate cause of the accident the trial court rendered judgment for the appellee father as against the appellant son and that appellee father take nothing as to United Auto Supply, Inc., and Billy John Marshall.

It refused to render judgment for contribution in favor of appellant Charles Satterfield as against Billy John Marshall. Appellant Charles Satterfield has duly perfected his appeal and Jess Satterfield appealed as to the take nothing judgment against Billy John Marshall.

We affirm.

The appeal of Charles Satterfield is based upon fourteen points of error. Points 1 through 8, both inclusive, and points 13 and 14 all pertain to the applicability of Art. 6701b, Vernon’s Ann.Civ.St. (commonly referred to as the guest statute) to the facts of this case rather than the court’s finding of joint venture.

The terms joint venture, joint adventure, common enterprise and joint enterprise are synonymous according to the authorities and are used interchangeably.

"A ‘joint enterprise,’ for the purpose of applying the rule here involved, is defined as such a legal relationship between two or more persons as will impose responsibility on each joint adventurer for the negligent acts of the others, while they are acting in furtherance of their common undertaking. Two elements are necessary to show the existence of a joint enterprise. These elements are (1) proof of a joint interest in the object and purpose of the enterprise, and (2) proof of an equal right on the part of all the parties, either express or implied, to direct and control the conduct of each other in attaining the objectives and purposes of the enterprise. * * * ” 7 Tex.Jur.2d 614, § 247. See authorities cited thereunder which include Straffus v. Barclay, 214 S.W.2d 826 (Amarillo, Tex.Civ.App., 1948), affirmed by Supreme Court, 147 Tex. 600, 219 S.W.2d 65 (1949). See also 7 Tex.Jur.2d, p. 614, § 247; 40 Tex.Jur.2d, p. 636, § 120; 11 Tex.L.R. 263; 12 Tex.L.R. 372; 13 Tex.L.R. 161, 163; and Hines v. Welch, 229 S.W. 681 (Texarkana, Tex.Civ.App., 1921, no writ hist.).

The guest statute, Art. 6701b, V.A.C.S., is not applicable where the parties are engaged in a joint enterprise. Where the owner of the vehicle is riding in the vehicle being driven by another person the owner is not the guest of the driver. The owner as such has the equal right either express or implied to direct and control the conduct of the driver in the operation of the vehicle. In this case it is undisputed that the parties were going to church at the time of the collision in question and thus shared a joint or common interest in the object and purpose of the trip. Under the evidence the appellee did not relinquish control of his car and could or would have exercised such right of control had he deemed it necessary. The right of control and not actual physical control is the usual test applied in such cases.

“An owner of a car is entitled to expect that one whom he permits to drive his car will follow his directions. On the other hand, one who is a guest in a car not only feels reluctant to interfere with his driver, but the owner who is driving is far less likely to heed his advice than if he, the driver, were merely permitted by the plaintiff, as owner, to do the driving.” The Restatement of Torts, § 491 at page 551.

A joint venturer may recover from another joint venturer for ordinary negligence as distinguished from gross negligence required of a guest under Art. 6701b, V.A.C.S.

“It seems that a showing that a rider and the operator of a vehicle were engaged in and on the business of a joint enterprise at the time of an accident in which the rider was injured would remove the rider from the operation of the guest statute. The fact that the rider and the operator were engaged, at the time of the rider’s injury, in a joint enterprise will not itself preclude the rider from recovering damages in a suit instituted against the driver. The reason for this rule lies in the fact that the doctrine of ‘imputed negligence’ is inapplicable to a controversy between the parties to a joint enterprise. * * * An entirely different situation is presented, however, where an action by the rider is commenced against the operator of another vehicle involved in the collision. Where this is the case, each member of the joint enterprise will then be regarded as having been the representative of the other member, and the acts of one member will be deemed to have been the acts of both members, provided, of course, that such acts were within the scope of the enterprise. In short, under such circumstances the doctrine of imputed negligence is applicable to the rider, so as to bar him from recovering damages from the operator of the other vehicle.” 7 Tex.Jur.2d 599, § 234.

Since in our opinion the court was correct in holding as a matter of law that the parties were engaged in a joint venture on the occasion in question and that the guest statute was not applicable it follows that the court was correct in denying the appellant’s'motions for summary judgment, judgment non obstante veredicto, for directed verdict and for judgment, all of which were primarily based upon Art. 6701b, supra, (the guest statute). For the same reasons the court was correct in refusing appellant’s motion to sustain his special exceptions, to submit special issues submitted by him as to whether the appellee was a guest of the appellant, and in overruling appellant’s objections to the charge of the court.

Johnson v. Smither, 116 S.W.2d 812 (Fort Worth, Tex.Civ.App., 1938, writ dism.); El Paso Electric Co. v. Leeper, 60 S.W.2d 187 (Tex.Com.App., 1933); McCormick v. Stowe Lumber Company, 356 S.W.2d 450 (Austin, Tex.Civ.App., 1962, ref. n. r. e.); Nelson v. Fulkerson, 155 Tex. 298, 286 S.W. 2d 129 (1956); Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65 (1949).

In the case of Bonney v. San Antonio Transit Company, 160 Tex. 11, 325 S.W.2d 117 (1959), which is relied upon by the appellant, the court in an opinion by then Chief Justice Hickman stated: “* * * we do not have before us a case in which the owner was present in his own automobile driven by another, as in Straffus v. Barclay, supra; second, nor one in which a parent was present in an automobile driven by his minor child, as in Nelson v. Fulkerson, 155 Tex. 298, 286 S.W.2d 129; third, nor one in which a driver and an occupant jointly borrowed an automobile, as in El Paso Electric Co. v. Leeper, supra; * * * This case is one in which the owner of the automobile is also the driver on a nonbusiness trip.”

See also 38 Tex.L.R. 813.

“Since the theory of joint enterprise is to make each party thereto the agent of the other and thereby to hold each responsible for the negligent acts of the other, it may have the effect of making a passenger liable to a third person not a party to the enterprise, as well as barring his recovery against a third person on the ground of contributory negligence. * * * ” 7 Tex. Jur.2d 664, § -292 (Parties involved in joint enterprise).

In cases where the plaintiff is a guest under the provisions of Art. 6701b, V.A. C.S., supra, rather than a joint venturer, as here, a different rule applies. See 7 Tex. Jur.2d 618, § 250.

By points 9 and 10 the appellant contends the trial court erred in overruling his motions for judgment non obstante veredicto and for judgment because the testimony of the appellee acquitted him of any negligence. That appellee being bound by such testimony which is conclusive and against him is judicially estopped to recover judgment against the appellant.

We find no merit in this contention. The appellee testified only as to what he could remember. The only positive statement made by him concerning the behavior of the appellant was that he stopped at the stop sign. The jury found this was so. The jury’s verdict was based upon all of the evidence adduced before it. The appellant did not affirmatively plead estoppel nor did he object to the evidence offered by the appellee based upon his claim of judicial estoppel.

By his points 11 and 12 the appellant contends the Court erred in refusing his requested trial amendment and special issues pertaining to an excessive rate of speed on the part of the defendant, Marshall, which was alleged to be a proximate cause and the sole proximate cause of the accident.

The record in this case shows the following action in chronological order:

June 8, 1965 — Plaintiff’s original petition was filed.
July 29, 1966 — Deposition of Billy John Marshall was taken.
August 16, 1966 — Plaintiff’s 1st amended original petition was filed.
January 6, 1967 — Plaintiff’s first supplemental petition was filed.
January 17, 1967 — Case goes to trial.
January 19, 1967 — Plaintiff offers trial amendment in question which was refused by the Court.

It will be observed from the above data that the case had been on file in excess of a year and six months when the trial amendment was filed and that the appellant filed his first amended original petition after the deposition of Billy John Marshall was taken. It must be presumed that the appellant had full knowledge of Marshall’s testimony at the time he filed his amended original petition. The trial amendment complained of was not filed until the third day of trial. There was no contention of “surprise” at the testimony of Marshall at the time it was given. There is none now nor was there any motion for continuance on the basis of such contention.

The jury convicted the appellant of negligence in failing to keep a proper lookout and of driving into the intersection at a time when Marshall’s car was approaching so closely as to constitute an immediate hazard. The jury also convicted Marshall of negligence. It follows that a jury finding of excessive speed on the part of Marshall would not alter or change the judgment which was rendered. Therefore, the failure of the trial court to permit the filing of the trial amendment and to submit the issues based thereon did not prejudice the appellant and would not require a reversal.

The trial court is vested with sound judicial discretion with regard to trial amendments and supplemental pleadings and something more than a request and refusal must appear before a reviewing court may properly say that the trial judge abused his discretion. The action of the trial court is presumed correct and is subject to review only on a showing of an abuse of discretion.

We find no abuse of discretion on the part of the trial judge.

In view of our holding we see no necessity in discussing the appellee’s cross assignments of error which are overruled. All of appellant’s points of error are likewise overruled and the judgment of the trial court is in all things affirmed.


source: Caselaw Access Project

author: BARROW, Chief Justice.

license: Public Domain

text:
    Robert B. CRUZ, Appellant, v. CITY OF SAN ANTONIO et al., Appellees.
    No. 14653.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 24, 1968.

      Jack Paul Leon, San Antonio, for appellant.
    Sam S. Wolf, J. Bruce Aycock, San Antonio, for appellees.
   BARROW, Chief Justice.

Appellant, Robert B. Cruz, complains of a take-nothing summary judgment rendered in his appeal to the district court under Section 18 of Art. 1269m, Vernon’s Ann. Civ.St., from an order of appellee Firemen’s & Policemen’s Civil Service Commission of the City of San Antonio dismissing him from the police department, based on charges filed by appellee George W. Bichsel, Chief of Police. Two principal questions are presented: 1. Is the summary judgment rule (Rule 166-A, Texas Rules of Civil Procedure) applicable to such an appeal? 2. If so, was this take-nothing judgment properly granted on the transcript of the testimony heard by the Commission?

It is well settled that although Sec. 18 of Art. 1269m, supra, provides that in an appeal to the district court from a final decision of the Commission such case shall be tried de novo, this provision does not require a de novo trial in the full sense, but rather a trial under the substantial evidence rule. Firemen’s & Policemen’s Civil Service Commission v. Hamman, 404 S.W.2d 308 (Tex.Sup.1966); Fire Department of City of Fort Worth v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664 (1949).

In a trial under the substantial evidence rule the issue is whether the evidence introduced before the trial court shows facts in existence as of the time the order was entered, of such a substantial nature as to reasonably support the order. This issue is one of law and trial of the fact issues by a judge or jury is avoided. Firemen’s & Policemen’s Civil Service Commission v. Hamman, supra; Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (1958); Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198 (1949); Kavanagh v. Holcombe, 312 S.W.2d 399 (Tex.Civ.App.—Houston 1958, writ ref’d n. r. e.).

We have been unable to find any authority restricting the application of the summary judgment practice in a case tried under the substantial evidence rule. Although the question of the application of such practice has seldom been raised, it is seen that summary judgments have been granted in many cases brought under this rule. See Texas Dept. of Public Safety v. Miller, 386 S.W.2d 760 (Tex.Sup.1964); Simmons v. Department of Public Safety, 350 S.W.2d 212 (Tex.Civ.App.—Texarkana 1961, no writ); City of Houston v. Peyton, 316 S.W.2d 152 (Tex.Civ.App.—Waco 1958, no writ); Beall Medical Surgical Clinic & Hospital, Inc. v. Texas State Board of Health, 364 S.W.2d 755 (Tex.Civ.App.—Dallas 1963, no writ).

Summary judgments granted in cases appealed to the district court pursuant to Art. 1269m have been upheld. See Civil Service Commission of City of Lufkin v. Crager, 384 S.W.2d 381 (Tex.Civ.App.—Beaumont 1964, writ ref’d n. r. e.); Lombardino v. Firemen’s & Policemen’s Civil Service Commission, 310 S.W.2d 651 (Tex.Civ.App.—San Antonio 1958, writ ref’d n. r. e.); Reagan v. Bichsel, 284 S.W.2d 935 (Tex. Civ.App.—San Antonio 1955, writ ref’d n. r. e.); Simpson v. City of Houston, 260 S.W.2d 94 (Tex.Civ.App.—Galveston 1953, writ ref’d n. r. e.). In our opinion Rule 166-A, supra, is applicable to cases appealed to the district court pursuant to Sec. 18 of Art. 1269m, supra.

Appellant urges that the summary judgment was improperly granted here, in that it is supported only by a transcript of the testimony heard by the Commission and is not based on evidence adduced before the trial court. It is settled under the substantial evidence rule that the record must be made in the trial court. Beall Medical Surgical Clinic & Hospital, Inc. v. Texas State Board of Health, supra; Kavanagh v. Holcombe, supra; Firemen’s & Policemen’s Civil Service Commission v. Tinsley, 304 S.W.2d 435 (Tex.Civ.App.—Texarkana 1957, writ ref’d n. r. e.).

It must be recognized, however, that a summary judgment record which is made in the trial court consists of pleadings, depositions and admissions filed in the case, together with any affidavits supporting or opposing the motion. Rule 166-A(c), T.R.C.P.; Richards v. Allen, 402 S.W.2d 158 (Tex.Sup.1966); Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962) ; McDonald, Texas Civil Practice, Cumulative Supp., § 17.26.4. Such affidavits must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. Rule 166-A (e); Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.Sup.1962); Box v. Bates, 162 Tex. 184, 346 S.W.2d 317 (1961).

In support of their motion for'summary judgment, appellees filed a copy of the order of the Police Chief suspending appellant, together with the affidavits of Kenneth Howard and Jim Dorsey. These two affidavits are substantially the same and, in each, affiant says that he was a court reporter and Notary Public in and for Bexar County, and took down the verbatim proceedings of the hearing of Cruz before the Commission by use of a stenograph. Affiant then transcribed the proceedings from shorthand notes to typewritten pages, and the transcript attached contains the testimony at the hearing. Attached as Exhibit “B” to said motion is a transcript of the testimony as prepared and certified to by these two affiants in their capacity as “Court Reporter and Notary Public in and for Bexar County, Texas.” In opposition to the motion for summary judgment, appellant filed his affidavit wherein he stated that the findings of the Commission are not based upon substantial evidence, that substantial evidence was not presented at the hearing, and that the Commission acted arbitrarily, capriciously and unreasonably in reaching their decision. Appellant swore that he did not violate the Civil Service Rules under which he was charged and was not guilty of the charges alleged against him.

There are no affidavits by or depositions of any of the witnesses who testified at the Commission hearing in this record, and the transcribed testimony of these witnesses is not subscribed or sworn to by any of said witnesses. There is no provision in Art. 1269m for the appointment of a court reporter, or for a transcript of the testimony. Affiants would have no more authority than any other spectator to testify at a trial on the merits as to what testimony was given at the Commission hearing and such testimony would clearly be hearsay.

We have found four substantial evidence rule cases wherein a transcript of the evidence before the administrative body was filed in the trial court as a basis for summary judgment. In Lombardino v. Firemen’s and Policemen’s Civil Service Commission, supra, and in Reagan v. Bichsel, supra, both parties moved for summary judgment based upon the transcript of the evidence of the Commission hearing. Although this question was not raised or considered in either case, any objection to the transcript would have been waived by the adoption of such transcript by both parties as a basis for their motions. Pollock v. Lowry, 345 S.W.2d 587 (Tex.Civ.App.—San Antonio 1961, writ ref’d n. r. e.).

In Simpson v. City of Houston, supra, the motion for summary judgment was based upon an affidavit which incorporated the record of the testimony and proceedings before the Commission. The nature of this affidavit or the form of the transcript is not shown or discussed in the opinion affirming the said judgment. However, in Kavanagh v. Holcombe, supra, the same Court, in discussing the Simpson case, stated that the city attorney had made an uncontroverted affidavit that this was all of the evidence that could be produced.

In Beall Medical Surgical Clinic & Hospital, Inc. v. Texas State Board of Health, supra, the question was squarely presented as to the competency of a transcript of proceedings setting forth the testimony heard by the Board. It is seen that the transcript was there certified in a manner similar to that used by the reporters Howard and Dorsey. It was held after a full discussion that the transcript was not competent evidence before the trial court to support the motion for summary judgment. We believe that this is the correct rule. See also Pollock v. Lowry, supra.

Appellees urge that any objection to this evidence was waived by appellant’s failure to except to same in the trial court. In support thereof they cite Youngstown Sheet & Tube Co. v. Penn, supra. In our case, however, the factual statements in the record, like those in Box v. Bates, supra, are obviously based on hearsay. The affi-ants Howard and Dorsey do not purport to have any personal knowledge of the facts relating to the charges against appellant. It cannot be said that appellees’ failure to show that affiants were competent to testify to the matters contained in the transcript was purely formal and could have been corrected. Rather, it must be said that there is no competent evidence in the record to support appellees’ motion for summary judgment. We are not authorized under Rule 437, T.R.C.P., to permit appellees to file supplemental affidavits in this Court in support of such motion, in that this rule relates only to “defects or irregularities in appellate procedure.”

There is no competent evidence in the summary judgment record before us to support the take-nothing judgment rendered by the trial court. The judgment of the trial court is therefore reversed and the cause remanded.

      . Howard’s notes are set forth on 81 typewritten pages, and Dorsey’s notes consist of an additional 651 pages.


author: CHAPMAN, Justice.

text:
    Harold PHARR, Appellant, v. Charles DIEGEL, Appellee.
    No. 7772.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 15, 1968.
    Rehearing Denied Feb. 12, 1968.
    Davis & Bevers and Bill Davis, Lubbock, for appellant.
    Nelson, McCleskey & Harriger and R. Rex Aycock, Lubbock, for appellee.
   CHAPMAN, Justice.

The specific question here presented is whether a duly licensed life, health and accident insurance agent, with a certificate of authority to act as agent or solicitor for Springfield Life Insurance Company is precluded as a matter of law from a court enforced collection of premiums from a general agent for the same and two other insurance companies on business solicited with Pan American Insurance Company (one of such other companies) from whom he had never obtained a brokerage contract and appointment as agent, and which was brokeraged through the general agent, the Diegel Agency.

A summary judgment was awarded Charles A. Diegel of the Diegel Agency, defendant below, and the brokerage agent, Harold Pharr, has appealed.

We have not been cited to nor have we found any supreme judicial expression passing on the legal question here presented.

The Austin Intermediate Appellate Court, after quoting Article 21.01 and Section 5 of Article 21.07, V.T.C.S., Insurance Code, and Article 572 of Vernon’s Annotated Penal Code; held that Lambert, a duly licensed insurance salesman for Southland Life Insurance Company, could not recover premiums from Perkins, the local agency manager and recording agent for another insurance company, upon a performed contract by which Lambert induced a holder of a term policy to convert such policy to permanent insurance, even though the local agency manager represented to Lambert that he was not required to obtain a brokerage contract with the second insurance company. Perkins v. Lambert, 325 S.W.2d 436 (Tex.Civ.App.—Austin, 1959, writ dism’d).

Art. 21.01, Texas Insurance Code, V.A. T.S., provides:

“It shall not be lawful for any person to act within this State, as agent or otherwise, in soliciting or receiving applications for insurance of any kind whatever, or in any manner to aid in the transaction of the business of any insurance company incorporated in this State, or out of it, without first procuring a certificate of authority from the Board.”

Art. 21.07 of the Code provides for the licensing of agents and section 5 of that article provides:

“No person shall be authorized to engage in business as the agent of any life insurance company, * * * until he shall have procured a license from the Board of Insurance Commissioners as herein provided, and no such company shall appoint any person to act as its agent or solicitor unless such person shall have first obtained a license under the provisions hereof, * * *”

Art. 572, Vernon’s Ann.P.C., provides:

“Whoever for direct or indirect compensation solicits insurance in behalf of any insurance company of any kind or character, or transmits for a person other than himself, an application for a policy of insurance to or from such company, or assumes to act in negotiation of insurance without a certificate of authority to act as agent or solicitor for such company, or after such certificate of authority shall have been canceled or revoked, shall be fined not more than one hundred dollars.”

The Court further held: “The contract before us was made in violation of the statute and under the law of this State the courts will neither aid in its enforcement nor relieve a party who has executed it. Morrison v. City of Fort Worth, 138 Tex. 10, 155 S.W.2d 908. Further appellee cannot sustain his recovery without reliance on the illegal contract and thereby his recovery is defeated. Pioneer Mutual Compensation Co. v. Diaz, 142 Tex. 184, 177 S.W. 202.”

The same Court in Tidelands Life Insurance Company v. Armstrong, 414 S.W. 2d 196 (Tex.Civ.App.—Austin, 1967) said:

“It is uncontroverted that while appel-lee was licensed generally as a life insurance agent in Texas during the existence of his contract with appellant he was not appointed by the State Board of Insurance to represent appellant as an insurance agent as required by Art. 21.01, Texas Insurance Code, V.T.C.S., which reads:
‘It shall not be lawful for any person to act within this State, as agent or otherwise, in soliciting or receiving applications for insurance of any kind whatever, or in any manner to aid in the transaction of the business of any insurance company incorporated in this State, or out of it, without first procuring a certificate of authority from the Board,.’ ” (Emphasis added.)

The Court then held:

“In Perkins v. Lambert, 325 S.W.2d, 436, writ dismissed, Tex.Civ.App., Austin, this Court held void and unenforceable a contract between a licensed insurance salesman for Southland Life Insurance Company and local agency manager for Fidelity Union Life Insurance Company whereby Lambert was to receive a commission for causing holder of a term policy in Fidelity to convert it into permanent insurance for the reason that Lambert had not complied with Art. 21.01, supra, in that he had not received authority from the State Board of Insurance to represent Fidelity.
We follow this decision and hold the contract between the parties void and unenforceable.”

Where plaintiff, one of two competing insurance companies, withdrew from competition in solicitation of writing bonds for a successful bidding road construction contractor and acquiesced in the contractor giving such business to defendant, Employers Casualty Company, in consideration of 20 per cent of the premium to be paid the latter by the construction company, The Fort Worth Intermediate Appellate Court held:

“Let us admit that all of the allegations of appellees’ petition are true. Then it is evident that, when Neely [agent for plaintiff, appellee] entered into the agreement and engaged in the transaction upon which the appellees claim a right to recover, he ceased to represent his own competing company, or companies, and made of himself a solicitor for Employers Casualty Company, and his acts were expressly forbidden by the provisions of article 5055, Revised Civil Statutes, and article 572, Penal Code.
Neely was not a licensed agent of and for appellant Casualty Company and had no authority to solicit business for it, and cannot sue for any agent’s commission, or insurance broker’s fee.” (Bracket added)

Appellant insists that National Security Company v. Murphy, 215 S.W. 465, (Tex.Civ.App.—Dallas, 1919, no writ history) is controlling in this case. None of the three other later cases we have cited herein and quoted from even refer to or discuss the Murphy case. Even if it should be said to be conflicting in its holding to the other three cases, we would feel compelled to follow the reasoning and conclusions in the three later cases and the weight of authority represented by them.

Accordingly, the judgment of the trial court is affirmed.

      . Employers Casualty Co. v. Mitchell, Gartner & Walton, 84 S.W.2d 862, (Tex.Civ.App.—Fort Worth, 1935).


author: DIXON, Chief Justice.

text:
    Annie Lorene PRICE et vir, Appellants, v. MINYARD’S FOOD STORES, INC., Appellee.
    No. 17006.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 26, 1968.

      Bill Glasby, Mesquite, for appellants.
    Frank Betancourt of Gardere, Porter & DeHay, Dallas, for appellee.
   DIXON, Chief Justice.

Appellants Annie Lorene Price and husband Otis Lynn Price sued Minyard’s Food Stores, Inc. to recover damages for personal injuries sustained by Mrs. Price when she stumbled over a small box of merchandise lying on the floor near the center of an aisle in appellee’s supermarket.

Appellee filed a motion for summary judgment in which motion it asserts (1) that it breached no duty it owed to Mrs. Price; and (2) that Mrs. Price was guilty of contributory negligence as a matter of law in that she failed to keep a proper lookout. The trial court sustained appellee’s motion and rendered summary judgment that appellants take nothing by their suit.

The record consists only of the pleadings and the deposition of Mrs. Price. In a footnote hereto we quote material parts of her testimony. We summarize her testimony in general in the following paragraphs.

On Friday, July 22, 1966, Mrs. Price accompanied by her two sons, aged thirteen and nine years respectively, entered appel-lee’s store to make a number of purchases. Her residence was close to the store. She had shopped there many times before — in fact she or one of her boys went there nearly every day to make purchases. On the occasion in question the older boy was pushing the cart onto which Mrs. Price was loading the items she intended to purchase. The premises were well lighted. The floors were clean. Boxes were stacked all over the store. Mrs. Price was aware that appellee’s employees were “putting out” merchandise, though at the time there were “no boys around putting out anything.”

The accident occurred in a wide aisle. A number of large boxes were stacked in a row close to the center, but not exactly in the center of the aisle. On one side of the row of stacked large boxes there was space enough left for the cart to be pushed through. On the other side there was space enough for a person to walk through, but not space enough to push the cart through. The large boxes in the row were stacked waist high or higher. Mrs. .Price saw them. But close to the end of the row of large boxes a small box, eight or ten inches high, was lying on the floor by itself. She did not see this small box. She stopped at a display counter to pick up some picnic supplies. She was on the narrow side of the aisle past the row of large stacked boxes. She stepped back from the display counter, not knowing that the small box was in the space back of her. She tripped and fell backward over the small box, sustaining serious injuries.

Mrs. Price says that she did not see the small box because it was hidden from view by the stack of larger, taller boxes. She came down the narrow side of the aisle, saw the stack of large boxes, but the small short box beyond them she did not see because it was out of sight as she approached the picnic supply counter. She was not looking at the floor. She was looking at the merchandise. At the time of the accident she had picked up some paper plates from the picnic counter and was carrying them in her arms. She stepped back before turning around, intending to go to the candy counter on the other side of the aisle. She had not been down that aisle before on this particular day.

In two points on appeal appellants argue (1) that the facts do not present a situation in which appellee may be exonerated under the “no duty” doctrine; and (2) that the trial court erred in holding that Mrs. Price was guilty of contributory negligence as a matter of law in that she failed to keep a proper lookout. In counterpoints appellee takes the opposite positions.

In deciding whether the testimony of Mrs. Price presents fact questions we must bear in mind certain rules laid down by our Supreme Court in regard to summary judgments. The burden of proof is on the movant. All doubts and uncertainties as to the existence of a genuine issue as to a material fact are to be resolved against the •movant. The evidence must be viewed in a light most favorable to the party opposing the motion. The evidence which tends to support the position of the party opposing the motion is to be accepted as true. The record before the court must establish conclusively that there are no issues of material fact to be decided. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.Sup.1965); First State Bank of Monahans v. Henderson, 377 S.W.2d 96, 99 (Tex.Civ.App., El Paso 1964, no writ); Zapffe v. McElroy, 364 S.W.2d 299, 300 (Tex.Civ.App., Dallas 1963, no writ); Pattison v. Highway Ins. Underwriters, 292 S.W.2d 694 (Tex.Civ.App., Galveston 1956, writ ref’d n. r. e.); Felker Lbr. Co. v. Superior Ins. Co., 272 S.W.2d 161 (Tex.Civ.App., Texarkana 1954, writ ref’d n. r. e.) ; Neigut v. McFadden, 257 S.W.2d 864 (Tex.Civ.App., El Paso 1953, writ ref’d n. r. e.); Whelan v. State, 252 S.W.2d 271, 273 (Tex.Civ.App., Texarkana 1952, no writ).

It is in the light of the above rules that we must consider the undisputed testimony of Mrs. Price, the only evidence before us. After careful consideration of her testimony we cannot say that there is no evidence that appellee failed in its duty to keep the premises in a reasonably safe condition for Mrs. Price, who was an invitee. That duty has been described by our Supreme Court in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 378 (Tex.Sup.1963); Triangle Motors v. Richmond, 152 Tex. 354, 258 S.W.2d 60, 63 (1953); and Scott v. Liebman, 404 S.W.2d 288, 292 (Tex.Sup.1966). See also Briones v. Levine’s, Inc., 415 S.W.2d 460 (Tex.Civ.App., Austin 1967, writ ref’d n. r. e.).

It is true that Mrs. Price had been in the store many times, but she testified that she had not been down this aisle before on this particular day. Her testimony is also to the effect that on this particular day the small box lying in the aisle was hidden from her view by the taller stack of large boxes. In Triangle Motors v. Richmond, 152 Tex. 354, 258 S.W.2d 60, our Supreme Court said that it is not the philosophy of Adair that one trip through a hall of dangers which are not open and obvious would relieve the owner of his duty to eliminate the danger or to warn. This statement was reiterated in Wesson v. Gillespie, 382 S.W.2d 921, 926 (Tex.Sup.1964), though it was held to be inapplicable under the facts of that case. See also Huvar v. Rex Corp., 387 S.W.2d 82 (Tex.Civ.App., San Antonio 1965, no writ). As we see it the undisputed testimony of Mrs. Price raises a fact issue in this summary judgment proceeding.

We come now to appellants’ second point of error — that the court erred in holding as a matter of law that Mrs. Price was guilty of contributory negligence in that she failed to keep a proper lookout. We have concluded that this point should be sustained.

There are instances when it is correct to hold that a plaintiff has been guilty of contributory negligence as a matter of law. But such instances are rare. The issue of negligence, either primary or contributory, is usually a question of fact. This is true even when the basic facts are undisputed if the inferences that might be drawn from the undisputed facts are such that reasonable minds might differ on the ultimate question whether the conduct under consideration constituted negligence. Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224 (1942); McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442, 447 (1941); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914); Texas Power & Light Co. v. Holder, 385 S.W.2d 873, 888 (Tex.Civ.App., Tyler 1964, writ ref’d n. r. e., 393 S.W.2d 821); Gregory v. City of Garland, 333 S.W.2d 869, 874-875 (Tex.Civ.App., Dallas 1959, writ ref’d n. r. e.); Watts v. Dallas Ry. & Term. Co., 279 S.W.2d 400, 403 (Tex.Civ.App., Dallas 1955, writ ref’d n. r. e.).

In Triangle Motors of Dallas v. Richmond, 258 S.W.2d 60, 64, our Supreme Court, speaking through Justice Calvert, held in effect that the question of contributory negligence under the circumstances in that case was a question of fact for the jury, not a question of law. In reaching this conclusion the court cited Texas & Pac. Ry. v. Day, 145 Tex. 277, 197 S.W.2d 332 (1946); Lang v. Henderson, 147 Tex. 353, 215 S.W.2d 585 (1948); Blanks v. Southland Hotel, Inc., 149 Tex. 139, 229 S.W.2d 357 (1950); Walgreen-Texas Co. v. Shivers 137 Tex. 493, 154 S.W.2d 625 (1941); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114 (1951). We add the following cases: Allen v. F. W. Woolworth Co., 315 S.W.2d 612, 615 (Tex.Civ.App., El Paso 1958, writ ref’d n. r. e.) (momentary forgetfulness, summary judgment case); San Antonio Hermann Sons Home Ass’n v. Harvey, 256 S.W.2d 906, 912 (Tex.Civ.App., Austin 1953, writ ref’d n. r. e.) (proper lookout case).

Among the cases relied on by appellee is Rittenberry v. Robert E. McKee, General Contractor, Inc., et al., 337 S.W.2d 197, 202 (Tex.Civ.App., Dallas 1960, writ ref’d n. r. e.), in which this court held that plaintiff knew of an unguarded elevator shaft, but voluntarily chose to work notwithstanding his awareness of the dangerous condition. Yet he walked several feet backward into the opening. We held that he was guilty of contributory negligence as a matter of law. Rittenberry had even warned two fellow employees about the danger of the open elevator shaft.

The Rittenberry case is not in point here. Mrs. Price testified that she did not know that the little box was back of her because it was hidden back of the row of taller, larger boxes. Whether under the circumstances she should have known of its presence is another question — a question which, so far as this summary judgment is concerned, is a fact issue.

In our decision here we are passing only on the propriety of the summary judgment under the record before us. We certainly are not attempting to say what the effect of additional evidence might be. In later proceedings if additional evidence is adduced it will have to be weighed anew.

Appellants’ points on appeal are sustained. Appellee’s counterpoints are overruled.

The judgment of the trial court is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

      . “A Tall boxes stacked up there * * * then they had a place where you could go through and walk up and down and look for your items, * * * and I had went through the clearing in between those tall boxes— * * * and I was looking for the different items, and, you know, at the picnic items, * * * and I went down to price the paper items, and I stepped back up and I was going to go back up and get the boys some candy, and this box was down there by itself and I didn’t see it and I hit it and fell over it.
      “Q How was it hidden?
      “A Well, these tall boxes was up above it and this box wasn’t too awful large; and it was sitting there, all by itself, kind of back, you know? * * * And the bigger boxes, with the smaller one hid because it was kind of skooted over this way and the bigger boxes was kind of like that (indicating with hands) and I thought I was stepping in this candy aisle but I wasn’t, and I fell over it.
      # * # * *
      “Q How tall were the boxes stacked up?
      “A Oh, some of them were higher than my head or as high as my head.
      * * # * *
      “Q And where were you, in the large part where the cart was being pushed, or were you—
      “A No, sir.
      “Q In the smaller part?
      “A I were in the smaller where I went though this opening and went in there and I came back then through there to look at the paper items and I didn’t notice that little box sitting there.
      “Q All right.
      “A And I never did see it.
      “Q Now, it was sitting apart from the other boxes?
      “A Well, * * *.

      “Q Was there anything to prevent you from seeing that box?
      “A Well, those other boxes, you couldn’t have saw it.
      “Q Well, you could see the other boxes?
      “A Yes, sir.
      “Q And you say they obstructed your view of this box?
      “A Yes.
      He ⅜ ⅛ * ♦
      “Q There was nothing, though, to prevent you from seeing the other boxes that were stacked up there?
      “A No, no; they were above my waist and where anyone could see them.”

      . The court was referring to the opinion in Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948).


author: BARRON, Justice.

text:
    TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. Alpha McILVAIN et vir, Appellees.
    No. 24.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Jan. 17, 1968.
    Rehearing Denied Feb. 14, 1968.
    Raybourne Thompson, Jr., B. Jeff Crane, Jr., Vinson, Elkins, Weems & Searls, Houston, for appellant.
    George E. Pletcher, Helm, Jones & Pletcher, Houston, for appellees.
   BARRON, Justice.

This is a workmen’s compensation suit. Plaintiffs are Mrs. Alpha Mcllvain and husband, Ottis Eugene Mcllvain, and the defendant is Texas General Indemnity Company, compensation insurer of Sidney Meyers, Inc. Mrs. Mcllvain was an employee working in the meat department, and at the time of the accident she was weighing packaged meat when she was suddenly injured in the area of her back which caused a numbness in her left leg.

After a hearing the jury awarded Mrs. Mcllvain $14,030.30 for total permanent incapacity by reason of her on-the-job injuries. The trial court rendered judgment in favor of plaintiffs on the verdict. Defendant filed motions for instructed verdict and motion for new trial, all of which attacked the trial court’s rulings and special issues numbers 3, 4 and 5, inquiring whether Mrs. Mcllvain’s belief that she was employed by J. Weingarten, Inc., constituted good cause for her failure to file her claim for compensation before she actually did file it on January 14, 1964. The motions were overruled.

Defendant timely perfected its appeal to this court. Texas General Indemnity Company is appellant here and Mrs. Mc-llvain and her husband are appellees.

The evidence is undisputed that Mrs. Mc-llvain received her injuries on January 26, 1961. She became a full time employee for Weingarten in 1956, and in 1957, she was transferred to Sidney Meyers, Inc., a separate corporation from Weingarten, but having extensive business relations with Weingarten in connection with its various operations in Harris County. It is uncontroverted that Mrs. Mcllvain was in the employ of Sidney Meyers, Inc., at all times material to this suit until after her injury on January 26, 1961. She received regular paychecks and other items in connection therewith on forms marked “Sidney Meyers, Inc.” There is ample testimony in the record which shows that Mrs. Mcllvain had reason to believe that she worked for Weingarten. The warehouse in which she worked was marked “Weingarten’s” and her supervisor was an employee of that firm. Her personnel records were kept by Weingarten employees, and employees with whom she dealt were those of Weingarten. She was sent to a doctor by Weingarten’s personnel office and the latter firm paid the doctors a portion of their bills. ■ The address of the warehouse where Mrs. Mcllvain was injured is the same as Weingarten’s general office, J. Weingarten, Inc., and Wein-garten’s Bakery. There are other facts in the record which might cause her to believe that she was an employee of J. Weingarten, Inc.

The record further shows, however, that subsequent to appellee’s injury of January 26, 1961, she took no action and talked with no one concerning her legal rights prior to contacting her attorney shortly before August 31, 1961. She took no action to ascertain her rights within six months immediately subsequent to her injury. She filed no claim and did not attempt to file one within the six month period provided by Article 8307, Sec. 4a.

Appellees contend, however, that if Mrs. Mcllvain’s belief that she was employed by Weingarten was justified as the jury found, her rights and duties must be tested as such would exist under her belief, and that prompt filing of a compensation claim is excused. The fact is that J. Weingarten, Inc., has never carried Workmen’s Compensation insurance at any time material to this case. It is asserted that since appellee had no rights under the Workmen’s Compensation Act insofar as J. Weingarten, Inc., is concerned, Mrs. Mc-llvain could have no obligations thereunder, and that appellee had a limitation period of two years to make her claim by suit against Weingarten. On August 31, 1961, seven months after appellee’s accident, her attorney inquired of the Board whether J. Weingarten, Inc., and/or Weingarten’s Delicatessen Warehouse were subscribers under the Workmen’s Compensation Act. In September, 1961, the Board informed her attorney neither was a subscriber. On the basis of information supplied by ap-pellee as to the identity of her employer, on October 5, 1961, her attorney filed a common law action against J. Weingarten, Inc. During January, 1964, the attorney was informed by counsel for Weingarten that Mrs. Mcllvain was employed by Sidney Meyers, Inc. After being so notified, her attorney, on January 14, 1964, filed appellee’s claim with the Board pursuant to Article 8307, Sec. 4a. There is no testimony in the record that Mrs. Mcllvain knew her former employer, Weingarten, had elected to be a non-subscriber under the Compensation Act prior to notification from her attorney after he received the Board’s letter of September 11, 1961. Mrs. Mcllvain admits that she had no contact with the Board before going to see her attorney sometime shortly before the attorney’s letter of August 31, 1961, some seven months after the date of her injury.

The burden of proof is on the claimant, appellee, to show the continued existence of good cause from the date of injury until the date the claim was actually filed with the Board. Texas Emp. Ins. Ass’n v. Doss, 301 S.W.2d 473 (Tex.Civ.App.), writ ref., n. r. e.; Texas Indemnity Ins. Co. v. Barker, 82 S.W.2d 389 (Tex.Civ.App.), no writ; Consolidated Cas. Ins. Co. v. Perkins, 154 Tex. 424, 279 S.W.2d 299. Under this record, we are bound to hold, and it is our duty to do so, that there is no evidence that appellee believed her employer was not a subscriber to Workmen’s Compensation and by reason of that belief, failed to act to protect her rights within the six-month period allowed for filing a claim. She simply, without legal excuse, took no action until approximately seven months after the date of her injury. Mere mistaken belief that one is employed bv another cannot be a reason for delay in ascertaining one’s rights in toe absence of evidence that she was deterred or delayed in some manner from taking action, or that she thought her injuries were trivial (Baker v. Westchester Fire Ins. Co., Tex.Civ.App., 385 S.W.2d 447, writ ref., n. r. e.), that the disability was late in developing (Maryland Casualty Co. v. Perkins, Tex.Civ.App., 153 S.W.2d 647, writ ref., w. m.), or in the absence of other reasons clearly justifying delay. See 63 Tex.Jur.2d, 269-287.

The test of good cause is whether the claimant acted as a reasonably prudent person would have acted in not filing her claim until it was actually filed. Texas Cas. Ins. Co. v. Beasley, 391 S.W.2d 33 (Tex.Sup.); Texas Emp. Ins. Ass’n v. McDonald, 238 S.W.2d 817 (Tex.Civ.App.), writ ref. Although this question is usually one of fact, the evidence in a particular case may point to a lack of diligence on the part of claimant as the only reasonable conclusion, and this then becomes a question to be decided as a matter of law. Texas Emp. Ins. Ass’n v. Brantley, 402 S.W.2d 140 (Tex.Sup.) ; Texas Cas. Ins. Co. v. Beasley, supra. We cannot say that good cause existed in this case under the undisputed facts, in the absence of evidence and findings that appel-lee was wrongfully mislead or that something equivalent to fraud was practiced upon her to cause her to delay filing her claim within six months. We cannot presume or deem that the trial court made or could have made such findings in this case. Rule 279, Texas Rules of Civil Procedure. During the period from the date of appellee’s injury until shortly before August 31, 1961, a period of seven months, by her own admission she took no action and talked to no one. This is fatal to her claim against appellant. See Amburn v. Employers’ Liability Assur. Corporation, 77 F.2d 749 (5th Cir. 1935). The fact that her supposed employer turned out to be a non-subscriber cannot amount to good cause in an action- against this appellant, the compensation insurer of the real employer, Sidney Meyers, Inc.

Therefore, the question becomes one of law and not of fact, and the trial court should have rendered judgment in favor of Texas General Indemnity Company, appellant. Young v. Safety Casualty Co., 168 S.W.2d 884 (Tex.Civ.App.), writ ref.; Texas Emp. Ins. Ass’n v. Brantley, supra.

Reversed and rendered.


author: NORTHCUTT, Justice.

text:
    BOARD OF FIREMEN’S RELIEF AND RETIREMENT FUND TRUSTEES OF AMARILLO, Texas et al., Appellants, v. Earle M. PARKS et al., Appellees.
    No. 7765.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 18, 1967.
    Rehearing Denied Jan. 29, 1968.
    C. J. Taylor, City Atty., Larry Brandon, Asst. City Atty., Amarillo, for appellants.
    Lockhart & Wilds, Amarillo, for ap-pellees.
   NORTHCUTT, Justice.

Earle M. Parks and others resigned from their jobs as firemen for Amarillo Fire Department and will hereafter be referred to as appellees. Appellees filed suit against the Board of Firemen’s Relief and Retirement Fund Trustees of Amarillo, Texas, et al, hereinafter referred to as appellants, for a refund of payments they had made during their employment to the Firemen’s Relief and Retirement Fund. The trial court held that they were entitled to the refunds under Art. 6243e, Sec. 10A(f) Vernon’s Ann.Civ. St. The court further found and ordered as follows:

“It being further found by the Court that no program for the making of refunds in lump sum payments has been adopted by the participating members of the Firemen’s Relief and Retirement Fund Trustees of Amarillo, Texas.
IT IF FURTHER ORDERED, ADJUDGED AND DECREED that the Board of Trustees of said Firemen’s Relief and Retirement Fund make or cause to be made payment of refunds to the above listed Plaintiffs, in either lump sum payments, if elections are held authorizing such payments, or in installment payments, the total sum due to each Plaintiff to be paid within one year from the date of final judgment, in such installment payments as may be reasonably directed by said Board of Trustees.”

From that judgment, all of the defendants below perfected this appeal.

The sole question here involved is a construction of Art. 6243e, Sec. 10A(f). It is appellees’ contention that that section requires a refund and that the only discretion in the Board of Trustees or the members of the fund is as to whether the refund will be in a lump sum or in installments. It is appellants’ contention that the only kind of refund provided or intended is by lump sum and that the Board and members can either refund in a lump sum or not at all as they elect. So far as we have been able to ascertain, this provision has not been construed by any of the appellate courts of this state.

Art. 6243e, Sec. 10A(f) is as follows:

“(f) In the event a fireman terminates, resigns, or leaves the active full-time service of the fire department for any reason other than those for which pension benefits will accrue, and before he receives his twenty (20) year pension certificate not having completed twenty (20) years of active full-time service in the city’s fire department, he shall receive an amount equal to the sum total of his monthly payments made while a participating member in the Firemen’s Relief and Retirement Fund. However, no lump sum payment shall be made without prior approval by majority vote of the Board of Trustees. The adoption of a program to make lump? sum payments to terminated firemen in the amount of their total monthly contributions, subject to approval by the Board of Trustees, shall be effective upon a majority vote of the participating members of the Firemen’s Relief and Retirement Fund.”

All of the appellees come within the terms of said article by resigning before receiving their twenty year pension certificate not having completed twenty years of active full-time service in the city’s fire department, and since it is provided they shall (emphasis ours) receive an amount equal to the sum total of their monthly payments made while a participating member in the Firemen’s Relief and Retirement Fund, the only issue then is how are they to be paid.

No lump sum payment could be recovered without a prior approval by the majority vote of the Board of Trustees and that has not been done in this case. Therefore, the only remedy left would be an equitable installment plan. As we construe the above article, each appellee is entitled to recover an amount equal to the sum total of his monthly payments made while a participating member in the Firemen’s Relief and Retirement Fund, and the only option which rests with the Board of Trustees or the participating members of the fund is with respect to whether refund or contribution shall be made in a lump sum. We overrule appellants’ contention. Judgment of the trial court is affirmed.


author: KLINGEMAN, Justice.

text:
    Lucious HINDS, Appellant, v. Edna MADISON et al., Appellees.
    No. 14628.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 27, 1967.
    Rehearing Denied Feb. 14, 1968.
    Montague & Thurmond, Del Rio, for appellant.
    Boyle, Wheeler, Gresham, Davis & Gregory, San Antonio, for appellees.
   KLINGEMAN, Justice.

This suit involves the construction of a provision in a grazing lease giving to the lessee an option or preferential' right to purchase the leased premises under certain conditions therein provided. Said suit was instituted on February 6, 1967, by Lucious Hinds, appellant herein, and hereafter referred to as “lessee,” against Edna Madison and Mabel Madison Almond, herein referred to as “lessors,” J. R. Preston, herein referred to as “Preston,” and the Midland National Bank, herein referred to as “Bank,” seeking a temporay restraining order and temporary injunction enjoining the sale and purchase of a 14,818.63 acre tract owned by lessors, known as the John Almond Ranch, of which the leased premises were a part, for such time as would be reasonable for the lessee to determine whether to exercise such option or preferential right of purchase, and for a declaration by the court establishing a reasonable time within which lessee might exercise or reject such option or preferential right of purchase. Lessors answered asking that all relief asked by lessee be denied, and also filed a cross-action for a declaratory judgment determining whether lessee had an option or preferential right to purchase such property. Preston and the Bank filed a motion to dismiss in said cause. The trial court, without a jury, denied all relief sought by lessee, and declared and decreed that the option or preference right to purchase contained in the grazing lease terminated by its own terms and provisions on October 1, 1966, and is and has been of no force and effect since the first day of October, 1966.

Under date of August 29, 1962, lessors leased to lessee for grazing purposes 2,849.-28 acres out of a 14,818.63 acre tract owned by lessors, for a term of five years beginning October 1, 1962, and ending October 1, 1967, which said lease provided for an annual rental payment of $1,900.00, payable in semi-annual installments of $950.00 each in advance on the first days of October and April of each year during the term of the lease. The 2,849-acre tract is separated from the rest of the 14,818-acre tract by the Devil’s River. Said lease contained the following provision:

“11. This lease is subject further to the right of lessors to sell the leased premises. And in the event of a sale lessors shall have the right to terminate this lease on October 1st of any year by giving to lessee six months prior written notice of such sale and desire to terminate. In this connection, however, in the event of sale, lessee shall have a preference right to purchase the leased premises for such price and upon the same terms and conditions otherwise for which lessors are willing to sell to others.”

Said lease also contained a provision giving the lessee a preference right to again lease the premises under certain conditions.

On December 29, 1966, lessors and Preston entered into a written contract for the sale and purchase of the entire 14,818-acre tract, providing for a total consideration of $592,720.00, and such contract, together with an executed deed, signed by the lessors, and executed notes and deed of trust, signed by Preston, was placed in escrow in the bank. Such contract and executed deed both specifically provided that such sale was subject to all valid and existing grazing leases. This sale was never consummated, and on February 13, 1967, the Bank returned such deed to the lessors, and the notes and deed of trust to Preston.

Lessee’s first point is that the trial court erred in holding that lessee’s option or preference right to purchase terminated on October 1, 1966. In order to resolve this point, it is necessary to determine whether Paragraph li of such lease grants to lessee an unconditional preference right to purchase the leased premises at any time during the term of the lease, if the lessors are willing to sell the same to a third person, or whether it grants to lessee such preference right of purchase only in the event such sale to another would work an early termination of the lease.

The trial court found, and it is undisputed, that the proposed sale was subject to such grazing lease. It is also undisputed and the trial court found that lessors made no effort to terminate such lease, that the lease contract was still in full force and effect at the time of the trial, and that such proposed sale was never consummated. We think that the case of De Vitt v. Kaufman County, 27 Tex.Civ.App. 332, 66 S.W. 224 (1901, writ ref’d), is directly in point and is controlling. Kaufman County leased a 960-acre tract to De Vitt and Scharbauer, which lease contained an option or preference right of purchase similar to the one in the lease before us. During the term of the lease the County sold such tract to a third person, and the deed of conveyance recognized the right of De Vitt to hold the land under the lease until the expiration of the full five-year term. The Court held that the option to buy applied only in case the lessor elected to terminate the lease by making a sale.

The lessors in the case before us could not terminate the lease after October 1, 1966, as the lease provided that any notice to terminate must be given prior to that date. In addition, the proposed sale was made expressly subject to such grazing lease. Lessee additionally contends that the effect of a sale made at any time during the term of the lease would cause lessee to lose his preference right to again lease the premises provided for under Paragraph 8 of such lease, and because of this, this case is distinguishable from De Vitt. Since the proposed sale was made subject to the grazing lease, the purchaser would simply step in the seller’s shoes, and such land would still be subject to all the terms and provisions of said lease. In this regard, see Draper v. Gochman, 400 S.W.2d 545 (Tex.Sup.1966), wherein De Vitt v. Kaufman County is cited. See also Craft v. Kinder, 97 S.W.2d 501 (Tex.Civ.App.—Fort Worth 1936, writ dism’d) ; 35 Tex.Jur.2d, Landlord & Tenant, § 37. Point of error No. 1 is overruled.

Lessee’s points of error Nos. 2 through 8 assert the proposition that the trial court erred in not declaring that lessee has a preference right to purchase the leased premises for a price proportionate to what lessors had contracted to sell the entire ranch for. In support thereof, lessee cites the case of Brenner v. Duncan, 318 Mich. 1, 27 N.W.2d 320 (1947), wherein the lessee of 75 feet out of a 100-foot lot was allowed to enforce his prior right of purchase of such 75-foot parcel for a sum bearing such ratio to the $15,000.00 selling price of the 100-foot lot as the value of the 75-foot parcel bore thereto.

In the case before us, lessee asserts that by a mathematical process of dividing the total sales price of $592,720.00 by 14,818, the number of acres in the whole tract, you arrive at a sales price of $40.00 per acre, and that such proposed sale of the entire ranch was made on a basis of $40.00 per acre. No evidence was introduced as to the value of the 2,849-acre leased tract, and there was no evidence as to whether the acreage was similar to the rest of the acreage. There was no evidence that lessors desired to or would sell the 2,849-acre tract alone, without selling the whole tract, or, if so, at what price they would sell such 2,849-acre tract.

New Atlantic Garden v. Atlantic Garden Realty Corp., 201 App.Div. 404, 194 N.Y.S. 34 (1922, affirmed without opinion in 237 N.Y. 540, 143 N.E. 734), involved a situation where a tenant had a preference right of purchase of a leased tract which was a part of a larger tract which the lessor attempted to sell during the term of the lease. The Court held that the fact that lessor attempted to sell the whole could not be taken, within the terms of the lease, as a manifestation of an intention or desire on the part of the landlord to sell the demised premises so as to give the tenant the right to exercise the option to purchase the same. This holding also finds support in the case of American Oil Co. v. Eastern Market Co. (1945), 60 York Leg.Rec. 33 (Pa.). Lessee’s points of error 4 through 8 are overruled.

Lessee’s points of error Nos. 9, 10 and 11 assert the proposition that under the testimony and record lessee has a preference right to purchase the entire 14,818-acre ranch for the price, terms and conditions provided for in the contract of sale between lessors and Preston. This contention is apparently based upon lessee’s testimony to the effect that he had talked to Preston, the purchaser under the proposed contract of sale, and to a lawyer who he stated was representing lessors in such proposed sale, and that he was told that if lessee desired to exercise his option he would have to purchase the entire ranch, and that it was a “package deal.” Lessee testified, however, that no one has ever tendered any offer, or extended any offer to him to purchase the entire John Almond ranch.

We do not see how in any way lessee’s option or preference right to purchase a portion of the property sought to be sold can be enlarged to cover other lands owned by lessors, or can in any manner cover anything except the property actually subject to the option. In Atlantic Ref. Co. v. Wyoming Nat’l Bank, 356 Pa. 226, 51 A.2d 719, it was held that a provision of a lease of a portion of a parcel of land giving the lessee a preferential right to purchase the demised premises on the terms of an acceptable offer to purchase made by a third person to the lessor, gives the lessee no right to purchase the whole parcel for which a third person has made an offer. A similar holding is found in the case of American Oil Co. v. Eastern Market Co., supra. Points of error Nos. 9, 10 and 11 are overruled.

Points of error Nos. 12, 13 and 14 assert that-the trial court erred in not granting lessee the injunctive relief asked by him, and in refusing to declare or establish a period of time within which lessee may elect to exercise or reject the preferential right of purchase. The trial court held that lessee’s option or preferential right of purchase terminated by its own terms and provisions on October 1, 1966, which holding we have approved. The trial court further found and it was undisputed, that at the time this case was tried the proposed sale from lessors to Preston had been terminated by mutual consent and agreement. Under the record, the injunctive relief was properly denied. These points of error are overruled.

The judgment of the trial court is affirmed.

      . “8. At the expiration of the term of this lease should lessors desire to again lease the premises for grazing purposes, lessee shall have a preference right, to loase said premises for such rental and upon such terms and conditions as lessors at that time would be willing to lease to others.”

      . “It is further provided that said county reserves the right to sell said land at any time, and terminate said lease at the end of any rental year, provided six months’ notice thereof shall be given to said De Vitt & Scharbauer prior to the end of any year for which the rent is paid, and provided, also, that said De Vitt & Scharbauer, shall have the privilege of buying said lands at such price as the county may see fit to accept, and which may be bona fide offered for the same by any other party.”


author: HOLMAN, Chief Justice.

text:
    Robert E. BRESLER, O.D., et al., Respondents, v. E. J. TIETJEN, Jr., O.D., et al., as Members of and Constituting the Missouri State Board of Optometry, Appellants.
    No. 51781.
    Supreme Court of Missouri, En Banc.
    Feb. 12, 1968.

      Charles H. Howard, George A. Rozier, Cullen Coil, Jefferson City, Attys. for respondents. Hendren & Andrae, Carson, Inglish, Monaco & Coil, Jefferson City, of counsel.
    Norman H. Anderson, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, Attys., for appellants.
    Albert E. Schoenbeck, St. Louis, Atty., for amicus curiae.
   HOLMAN, Chief Justice.

This suit for a declaratory judgment was instituted by nineteen optometrists against the members of the Missouri State Board of Optometry. They allege that a portion of § 336.110 (all statutory references are to RSMo 1959, V.A.M.S.) is unconstitutional, and that four rules promulgated by the defendants under the rule-making power given them in § 336.160 are invalid. The judgment of the trial court was in favor of plaintiffs and defendants have appealed. We have jurisdiction because one of the questions presented involves the construction of a provision of the State Constitution. Mo.Const., Art. 5, § 3, V.A.M.S.

This appeal was originally heard in Division II and the case was subsequently transferred to Court en Banc. Portions of an opinion prepared in division (which was not adopted) are here adopted without the use of quotation marks.

The parties stipulated that “a justiciable controversy exists between plaintiffs and defendants in that an actual controversy exists between them * * * and that if said Rules 17 to 20 as promulgated by the Missouri State Board of Optometry are valid and are enforced plaintiffs would be subject .to having their certificates of registration authorizing them to practice optometry in Missouri suspended or revoked if they continue in their practices as presently conducted.” There is no substantial dispute about the facts and very little need be stated concerning them. Two of the defendants testified at the trial and the deposition of each of the plaintiffs was admitted. We think it is fair to say, in a very general way, that each of the plaintiffs practice optometry in an office located next door to an optical salesroom operated by either the King, Lee, or Douglas Optical Company; .that the optical companies involved widely advertise the price of prescription glasses; that many people who go to the salesroom do not have a prescription and are told they must obtain one before they may purchase glasses; that either by reference or by reason of the proximity of his office most of those people immediately go to the optometrist in the adjoining office for an examination and prescription for which they pay the optometrist a fee which is usually $5.00; that after obtaining the prescription most of these people go back to the nearby optical salesroom and purchase their glasses.

The evidence indicates that as an inducement for plaintiffs to lease the adjoining office the optical companies usually make certain financial concessions to them. In many instances they were given free rent and sometimes a guaranteed minimum weekly income.

It also appears from defendants’ evidence that the real alleged evil the defendants are seeking to eliminate by the rules hereinafter discussed is price advertising by optical companies over whom they have no jurisdiction. Apparently they have the view that the optical stores could not sell glasses at the prices advertised and make enough profit to remain in business without the cooperation of plaintiffs in the manner heretofore outlined. Defendants testified that the State Board and the Missouri Optometric Association have unsuccessfully sponsored bills in the legislature on a number of occasions which sought to accomplish the same results as would be accomplished by the rules in question.

The provisions of several statutes must be summarized or parts thereof set out in full. Section 336.010 defines what constitutes the practice of optometry, and briefly stated it consists of the examination of the human eye, without the use of drugs, medicine, or surgery to ascertain defects and abnormal conditions, and the prescription or adaption of lenses, prisms, or ocular exercises to correct defects and abnormal conditions and to adjust the eye to conditions of special occupation. The important and material factor to the issues in this case is that the sale of eyeglasses, whether or not on prescription, does not constitute the practice of optometry. Section 336.120; Ketring v. Sturges, Mo., 372 S.W.2d 104, 113. Section 336.030 prescribes who are qualified to receive a “certificate of registration” as an optometrist, and subsection 1 of § 336.110 provides that the board “may either refuse to issue, or may refuse to renew, or may suspend, or may revoke any certificate of registration” for any one or combination of enumerated causes including:

“(5) Advertising by means of knowingly false or deceptive statements;
“(6) Advertising, practicing or attempting to practice under a name other than one’s own;
“(7) Advertising, directly or indirectly, prices or terms for optometric services;
“(8) Gross ignorance, gross inefficiency, or dishonorable conduct in optometric practice. Dishonorable conduct in opto-metric shall include, but shall not be limited to, employing what is known as procurers to obtain business; and the obtaining of any fee by fraud or misrepresentation.”

Section 336.160 provides that the Board may adopt “reasonable rules and regulations within the scope and terms” of Chapter 336 “for the proper administration and enforcement thereof.”

The findings and judgment of the trial court included the following:

“1. That Rules Nos. 17, 18, 19 and 20 of the Rules and Regulations of the Missouri State Board of Optometry are and each of them is invalid, illegal, unconstitutional, arbitrary, unreasonable, void and of no force or effect.
“2. That the Missouri State Board of Optometry and the members, agents and employees thereof and all persons acting under the direction and authority of them are hereby perpetually enjoined and restrained from enforcing or attempting to enforce in any manner whatsoever any or all, or any portion or portions, of said Rules Nos. 17, 18, 19 and 20.
“3. That Section 336.110, RSMo 1959, is in violation of Section 1, Article III of the Constitution of Missouri insofar as subdivision 1(8) thereof provides that ‘dishonorable conduct in optometric practice shall include * * * employing what is known as procurers .to obtain business * *

Plaintiffs contend that the provision of § 336.110 which states that “dishonorable conduct in optometric practice shall include * * * employing what is known as procurers to obtain business” constitutes “an unlawful delegation of a legislative function to the State Board of Optometry, in that it delegates to the Board the unlimited and unbridled power to determine who or what constitutes ‘what is known as procurers to obtain business’ in the ‘optometric practice.’ ” They argue that the phrase is so vague and indefinite as to be incapable of intelligent interpretation and enforcement. We do not agree. We need not set forth the general rules concerning the prohibition against a delegation of legislative functions to an administrative body. They may be found, among other places, in 1 Am.Jur.2d, Administrative Law, §§ 100-114, and 73 C.J.S. Public Administrative Bodies and Procedure §§ 28-35. In Ketring v. Sturges, Mo., 372 S.W.2d 104, 111, this court stated .that “the legislature could confer upon the board the authority to revoke a license for ‘dishonorable conduct’ without specifying every act which should constitute dishonorable conduct, and leave it to the board to determine in a particular case what amounts to dishonorable conduct.” See State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943, Rust v. Missouri Dental Board, 348 Mo. 616, 155 S.W.2d 80, and Hughes v. State Board of Health, 348 Mo. 1236, 159 S.W.2d 277. Plaintiffs do not attack, and the trial court did not rule invalid, this grant of power to the Board to revoke a certificate of registration for dishonorable conduct in optometric practice. The ruling of the trial court,' and plaintiffs’ attack, pertain to the phrase whereby the legislature has defined certain conduct (that of “employing what is known as procurers to obtain business”) as constituting dishonorable conduct in optometric practice. They argue that by using the phrase “what is known as procurers” the legislature intended to proscribe a particular practice known in optometric circles, and we think that is correct. But, we do not agree that it was incumbent upon the legislature to describe further the conduct it intended to prohibit. The legislative intent was to declare that for an optometrist to obtain patients for optometric services by use of solicitors, or what is sometimes referred to as “runners,” would constitute dishonorable conduct in optometric practice. The word “procurers” must be read in connection with “optometric practice,” and when that is done the words take on a commonly accepted meaning in optometric circles. See, for purposes of comparison, People v. Dubin, 367 Ill. 229, 10 N.E.2d 809, and Reyburn v. Minnesota State Board of Optometry, 247 Minn. 520, 78 N.W.2d 351. By the use of the word “procurers” the legislature distinguished between customers referred to an optometrist by a satisfied previous customer or friend without any agreement or understanding between the optometrist and the previous customer or friend, and those customers obtained as the result of an agreement or arrangement whereby customers are referred to an optometrist for pecuniary or business reasons. We are of the opinion that the legislature, by the language used, has established a sufficiently definite policy, standard, or rule, and therefore the statutory provision in question is not an improper delegation of legislative power. We necessarily conclude that the trial court erred in holding that part of § 336.110 referred to in the trial court’s judgment to be unconstitutional.

The four rules which are alleged to be invalid are as follows:

“RULE 17
“A licensed optometrist shall be deemed to be ‘advertising, practicing, or attempting to practice under a name other than his own’, ‘advertising directly or indirectly prices or terms for optometric services’ and ‘dishonorable conduct in optometric practice’ by employing procurers to obtain business in violation of Section 336.-110, subsection (1), (6), (7), and (8) RSMo, if such optometrist shall become affiliated with any person, firm, corporation or association of any kind which shall advertise directly or indirectly prices or terms for optometric services as defined by Section 336.110, RSMo.”
“RULE 18
“A licensed optometrist shall be deemed to be ‘advertising by means of knowingly false and deceptive statements’ and to be engaged in ‘dishonorable conduct in optometric practices’ by employing procurers to obtain business in violation of § 336.110, subsection (1), (5), and (8), RSMo, if such optometrist shall become affiliated with any person, firm, corporation or association of any kind which shall advertise prices for prescription eyeglasses or prescription eyeglass lenses without clearly stating in such advertisement that such prices do not include the cost of an eye examination, a prescription, or other optometric service.”
“RULE 19
“A licensed optometrist shall be deemed to be affiliated with another person (which term shall include any firm, corporation or association of any kind), if said optometrist is employed by such person; or, if he has entered into an agreement or arrangement of any kind, either formal or informal, under which said person shall rent or lease room or space to said optometrist for the practice of optometry; or, if such person has agreed to pay said optometrist for the performance of optometric services or has agreed to guarantee said optometrist a definite income to be derived from the practice of optometry or has agreed to pay or repay expenses incurred by said optometrist in said practice of optometry.”
“RULE 20
“It shall be deemed to be ‘dishonorable conduct in optometric practice’ by employing procurers to obtain business in violation of § 336.110, subsection (1) and (8), RSMo, for any licensed optometrist to enter into a written agreement or an oral understanding or to make, maintain or participate in a formal or informal arrangement with any person, firm or corporation that advertises prices for prescription eyeglasses or prescription eyeglass lenses if according to the terms of such agreement or understanding, before such prescription eyeglasses or prescription eyeglass lenses are furnished or delivered to a user attracted by such advertisement. Such user usually or customarily will be referred by said person, firm or corporation or its agents or employees to said optometrist to perform professional optometric services for such user.”

In view of the general nature of the Declaratory Judgment Act, see § 527.010 et seq., we are of the opinion that this is an appropriate action for a determination of the validity of such of the challenged rules as actually present a justi-ciable controversy. Plaintiffs are entitled to a determination which will terminate the uncertainty as to whether their manner of dealing with the optical companies constitutes grounds for revocation of their certificates of registration under the provisions of § 336.110.

In Ketring v. Sturges, supra, this court stated that in view of the regulatory authority conferred upon the Board, see § 336.160, it could define in advance some conduct which it would consider dishonorable conduct in the practice of optometry. By the same token the Board may define in advance some conduct which it would consider to constitute “employing what is known as procurers to obtain business,” and what, it would consider to constitute “advertising” in violation of paragraphs (5), (6) and (7) of subsection 1 of § 336.110. However, under the. guise of its rule-making power the Board cannot enlarge upon the scope and terms of the statute, and it cannot by rule constitute certain conduct a violation of the statute, which, in the absence of the rule, could not reasonably be so construed. When acting within its rule-making authority, “the board’s judgment in such matters should be disturbed only if the rule is unreasonable,” and “greater deference should be paid the board’s determination because they, being members of the profession, are more aware of the standards of conduct which the profession exacts of its members, and thus are in a better condition to judge what is dishonorable conduct [and prohibited advertising] in the practice of an optometrist.” Ketring v. Sturges, supra, 372 S.W.2d at p. 111.

At the outset of our consideration of the aforementioned rules we observe that it would be reasonable to suspect that all of those rules are invalid when we consider that admittedly the primary, though indirect, objective the Board sought to achieve by adopting the rules was to eliminate the advertising of prices by optical companies over whom the Board had no jurisdiction or control. We also deem it appropriate to consider that the Board, in construing the provisions of § 336.110, evidently entertained doubt as to its authority to adopt valid rules of the nature of those in question since there is evidence that the Board has unsuccessfully attempted to obtain passage of legislation which would have accomplished the same objectives.

It should be noted that Rule 19 does not describe any conduct which in the opinion of the Board amounts to a violation of § 336.110. It has efficacy only insofar as it is read and considered in connection with Rules 17 and 18. The rule defines the word “affiliated” used in Rules 17 and 18 and specifies five situations, any one of which would be deemed to result in a licensed optometrist being affiliated with another person, firm, corporation or association. We will discuss this rule further after we have considered the contention that the other rules are invalid.

Rule 17 provides that an optometrist shall be deemed to be in violation of paragraphs (6), (7), (8) of subsection 1, § 336.110, if in any of the five ways specified in Rule 19 he is “affiliated” with a person (which includes a firm, corporation, or association) “which shall advertise directly or indirectly prices or terms for optometric services as defined by Section 336.110.” As previously noted, “optometric services” do not include the sale of eyeglasses, frames, or lenses, or the advertisment thereof. Ketring v. Sturges, Mo., supra, at p. 113. Plaintiffs did not allege that they or any of them were “affiliated” with a person who advertised prices or terms for opto metric services, and there was no proof of such affiliation. Although the parties stipulated to the legal conclusion that a justi-ciable controversy exists, it obviously does not as to Rule 17. Therefore, the validity of Rule 17 is not before us.

Rule 18 provides that an optometrist shall be “deemed” to be in violation of .paragraphs (5) and (8) of subsection 1, § 336.110 if (by reference to Rule 19) (1) such optometrist shall be “employed by” another person, or (2) such optometrist shall enter into an “agreement or arrangement” to rent or lease from another person space for the practice of optometry, or (3) another person has “agreed to pay said optometrist for the performance of optometric services,” or (4) another person has agreed “to guarantee said optometrist a definite income to be derived from the practice of optometry,” or (5) another person has “agreed to pay or repay expenses incurred by said optometrist in said practice of optometry,” and such other person shall “advertise prices for prescription eyeglasses or prescription eyeglass lenses without clearly stating in such advertisement that such prices do not include the cost of an eye examination, a prescription, or other op-tometrical service.”

It should be noted that by Rule 18 the Board has not attempted to declare that an optometrist will be presumed to have violated § 336.110 on the basis that he has entered into any of the five arrangements described in Rule 19 which the Board declares will create a presumption of “affiliation.” A presumed violation occurs only if one of the arrangements exists and the other person advertises the price or terms for prescription eyeglasses or prescription eyeglass lenses without clearly stating in such advertisement that the advertised price does not include the cost of an eye examination, a prescription, or other optometrical services. If this does occur, the Board has decreed, the optometrist shall be presumed to be guilty of “advertising by means of knowingly false and deceptive statements,” and to be guilty of dishonorable conduct in optometric practice “by employing procurers to obtain business.” We consider this to be a non sequitur. An optician or other person engaged in selling eyeglasses, eyeglass lenses, or frames may lawfully advertise the price thereof whether or not on prescription, and we know of no requirement that the optician or other person, not an optometrist, must place in his advertisement that the advertised price does not include the cost of a service he is not authorized by law to furnish. We fail to see how the lawful conduct of “another person” with whom an optometrist is “affiliated”, which affiliation by itself is not specified by the Board to be unlawful, can result in a presumption that the optometrist is engaged in advertising by means of false and deceptive statements, or is employing procurers to obtain business. Section 336.110 cannot reasonably be given such a meaning, and, therefore, since it goes beyond the scope of the statute, Rule 18 is invalid.

Rule 20 provides that an optometrist shall be deemed to be employing procurers to obtain business, and violating paragraph (8) of subsection 1, § 336.110, if (1) he has entered into an agreement or understanding to participate in an “arrangement” with another person who advertises prices for prescription eyeglasses or prescription eyeglasses lenses, and (2) by the terms of such agreement or understanding before the prescription eyeglasses or prescription eyeglass lenses are furnished to “a user attracted by such advertisement,” such “user usually or customarily will be referred” by such other person to said optometrist for him to perform professional optometric services for such user.

This rule purports to create a presumption of employing what is known as procurers to obtain business, and we are of the opinion that under certain facts and circumstances an optometrist could reasonably be found to be so engaged when he has an arrangement with another to refer persons to him for optometric services. However Rule 20 is actually not directed against arrangements as such where referrals occur; it is limited to such arrangements by an optometrist with another person who “advertises prices for prescription eyeglasses or prescription eyeglass lenses.” Therefore, the essential element in the activity proscribed by the rule is the lawful activity of a person not under the jurisdiction or supervision of the Board. For example, two optometrists may enter into identical “understandings” to participate in an “arrangement” (to use the language of Rule 20) with two opticians. One optician advertises the “prices for prescription eyeglasses [and] prescription eyeglass lenses.” The other also advertises, and in his advertisement says identically the same as the first except he does not include in the advertisements the “prices for prescription eyeglasses or prescription eyeglass lenses.” Under Rule 20 one optometrist is presumed to be “employing procurers to obtain business” in violation of paragraph (8) of subsection 1, § 336.110, and the other is not. Yet, paragraph (8) has nothing to do with who may or may not advertise the price of eyeglasses. We necessarily conclude that while at first blush Rule 20 appears to deal with the issue of employment of procurers, it in fact is directed at advertising the cost of prescription eyeglasses by persons not under the administrative control or supervision of the Board. The legislative enactment concerning the employment of procurers to obtain business cannot reasonably be given such a meaning. Therefore, the rule is unreasonable and discriminatory in its application and invalid.

We will now give further attention to Rule 19. As heretofore stated, it is definitive in nature and does not have any efficacy standing alone. The briefs contain very little discussion of it except insofar as it is incorporated into Rules 17 and 18. We consider it advisable, however, to suggest that there are- at least two situations specified therein that are obviously unreasonable and invalid. The fact, standing alone, that a licensed optometrist may rent office space from another person would not be sufficient to reasonably support the presumption that they were “affiliated.” And neither would the fact that such person “has agreed to pay said optometrist' for the performance of optomet-ric services” support a presumption that they were “affiliated.” That provision is so broad that it would apply to a situation where “such person” had agreed to pay the optometrist for personal optometric services rendered to “such person” or members of his family. In the situation presented we will not determine the validity of the other three circumstances outlined in the rule.

For the reasons stated we rule as follows : The judgment of the trial court holding a portion of § 336.110 to be unconstitutional is reversed; that part of the judgment holding Rules 18 and 20 invalid is affirmed; that part of the judgment holding Rule 19 invalid is affirmed to the extent heretofore indicated and otherwise is reversed; that part of the judgment holding Rule 17 invalid is reversed on the ground that there is no justiciable controversy as to it; that part of the judgment restraining defendants and their agents from enforcing said rules is affirmed to the extent we have declared said rules invalid and otherwise is reversed. The case is remanded to the trial court for entry of a new judgment in conformity with the conclusions herein stated.

All concur.

      . At the time the opinion in the Ketring case was written the Board determined in the first instance whether or not “conduct” constituted “dishonorable conduct” in optometric practice. Now that determination is made by the Administrative Hearing Commission. §§ 161.252 and 161.272, RSMo 1965 Cum.Supp., V.A.M.S.

      . Apparently the words “guilty of” were omitted here.

      . In Rules 17, 18, and 20, the references obviously should be to § 336.110, subsection 1, and to paragraphs (5), (6), (7) or (8).

      . This period obviously should be a comma and the next word should not start a new sentence.