author: MAUGHMER, Commissioner.

text:
    MIDWESTERN REALTY CORPORATION (formerly Craftmark Industries, Inc.) a Corporation, Plaintiff-Appellant, v. CITY OF GRANDVIEW, Missouri, a Municipal Corporation, Defendant-Appellant.
    No. 24707.
    Kansas City Court of Appeals. Missouri.
    April 3, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 5, 1967.
    Application to Transfer Denied July 10, 1967.

      Charles W. Hess, of Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, for plaintiff-appellant.
    James C. Morris, Guy W. Rice, Kansas City, for defendant-respondent.
   MAUGHMER, Commissioner.

The plaintiff, Midwestern Realty Corporation, is the successor corporate entity of Craftmark Industries, Inc., which in turn was successor to Meadowmere Corporation. The defendant, City of Grandview, was at all times herein mentioned, a fourth class city of the State of Missouri.

The plaintiff filed suit against defendant in the Circuit Court of Jackson County, Missouri under which it sought judgment for $21,232.40, with interest from March 2, 1956. The suit was predicated upon alleged advancements in that amount which had been made to defendant for use in the construction of sewer facilities. Plaintiff based its claim upon a “contract” signed on March 2, 1956, by the president and secretary of Meadowmere Corporation and by the Mayor of the City of Grandview. This •contract described Meadowmere Corporation as “Contractor” and the City, of Grand-view as “City”. Meadowmere’s interest in the matter arose from the fact that it owned an “addition” or “residential development” adjoining the City of Grandview as then constituted, and desired sewer facilities for this project.

The “Contract” recited that Grandview had been attempting for two years to build a sewer system, had voted bonds, secured a federal grant, condemned a treatment plant site, and obtained a building permit; that the City, by a Resolution signed by its Board of Aldermen, had authorized execution of an agreement with “Contractor” concerning advancement of funds and construction, and that Tri-City Construction Company was willing to contract for the construction. We now quote Paragraph 3 verbatim:

“The Contractor hereby assumes and releases City from all liabilities caused by, or resulting, directly or indirectly, wholly or in part, from any failure or fault on the part of the City in furnishing services pursuant to this agreement and Contractor shall indemnify and hold City harmless from and against all claims, demands, expenses, suits, proceedings (including related expenses and attorney fees) and liabilities of any nature whatsoever, including damage to property and for personal injury or death arising out of or in connection with the performance or rendition of any work or services under this contract”. (Italics ours).

The contract contained no specific agreement or promise on the part of the City to repay the advancements. Mr. Fred E. J. Hornaman, vice-president of Meadowmere, said of the alleged promise: “It was a gentlemen’s agreement”.

By its answer, defendant invoked the statute of limitations, pleaded that the funds advanced by plaintiff were expended for the benefit of plaintiff in providing sewers for its residential development and alleged the advancements were made solely in consideration of defendant providing sewer facilities and services to plaintiff. Defendant also filed a counterclaim, asserting that it built a sewage lagoon or treatment plant on the lands of plaintiff and was sued by adjoining landowners and that defendant expended $7500 in defense of said suits and in satisfying judgments procured therein; that plaintiff had agreed “to hold defendant harmless” in such matters and asked judgment under the counterclaim for $7500 and costs.

A jury was waived and the Court, after hearing the evidence, found for defendant on plaintiff’s petition and for plaintiff on defendant’s counterclaim. The Court entered the following, among other, findings of fact: The contract was executed on March 2,1956, a Resolution was unanimously passed by the Board of Aldermen of the City of Grandview on February 16, 1956, authorizing the contract, but no Ordinance either authorizing or ratifying the contract was ever “executed” (passed); that the parties in contracting and using the word “advance” in the March 2, 1956 agreement, did not contract expressly for repayment of the funds advanced; that defendant proved $5,202.95 special damages as a result of lawsuits filed as a direct result of operation of a temporary sewer treatment plant operated solely for the use of Meadowmere Corporation. The conclusions of law were against both claimants with judgment accordingly as hereinabove stated.

The judgment was entered on September 21, 1965. Each party filed after-trial motions which were all overruled on October 25, 1965. Both litigants appealed to the supreme court. Defendant’s notice of appeal was filed November 2, 1965 (eight days after final judgment) and plaintiff’s was filed on November 5, 1965, or eleven days after final judgment.

Plaintiff filed in the supreme court its motion to dismiss defendant’s appeal for “failure to comply” with Rule 83.06, V.A. M.R. This motion was overruled. Defendant filed its motion to dismiss plaintiff’s appeal because it was not in compliance with Rule 82.04, V.A.M.R. in that the notice of appeal was not filed within ten days after entry of final judgment. The supreme court on September 22, 1966, sustained this motion and dismissed plaintiff’s appeal by the following order: “Defendant-appellant’s motion to dismiss plaintiff-appellant’s appeal is sustained and appeal of plaintiff is dismissed. It appearing that this court does not have appellate jurisdiction herein, this cause is transferred to the Kansas City Court of Appeals”. Plaintiff filed a motion for rehearing in the supreme court, which was treated as a motion to set aside the order dismissing plaintiff’s appeal. This motion was overruled by the court on October 10,1966, and the mandate transferring to this court was mailed to us on October 12, 1966. There is no dispute between the parties as to these recited occurrences.

By its briefs and oral arguments plaintiff seeks to have us treat its appeal as if it had been originally filed here or at least it urges us to re-examine and reconsider defendant’s motion to dismiss plaintiff’s appeal without regard to the action and order of the supreme court dismissing it. This we cannot do. It seems quite clear, it is our opinion and we hold that the order of the supreme court which dismissed plaintiff’s appeal is final, conclusive and binding upon this court. We have no authority to reexamine or redetermine the matter. In fact we believe that unless this were so, this court would be divested of jurisdiction and the supreme court has decreed that we do have jurisdiction. If plaintiff’s suit for $21,232.40 were still pending on appeal, the amount involved would be in excess of our jurisdiction and jurisdiction would rest with the supreme court. We hold that plaintiff’s appeal has been dismissed, its claim is no longer in live litigation, the circuit court judgment as to the subject matter thereof has become final and we are without authority to consider that part of the controversy any further. Therefore, the only dispute now pending has to do with defendant’s counterclaim.

The only witness who testified relative to defendant’s counterclaim was Regna Vanatta, who was city clerk of Grandview from 1954 until 1960. She produced the circuit court files on three lawsuits which were filed against Grandview on June 2, 1958. The parties agreed in open court that considering payment of the judgments obtained therein, the costs and attorney fees, the City expended $5,202.95, in order to finally dispose of those suits. This witness also stated that she knew those lawsuits “arose out of alleged improper operation of the lagoon”. Apparently the petitions so alleged, but neither the petitions nor the judgments, if any, secured against the City of Grandview in those suits, are included in the record before us. In any event, this testimony as to the basis of the suits was permitted to come into evidence. If Meadowmere or its successors are liable to defendant under the counterclaim, such liability must arise out of and be predicated upon the indemnity provisions in the written contract of March 2, 1956. Absent a definite . agreement assuming liability therefor the plaintiff would not be liable. Defendant does not suggest any other source of liability. It is quite definitely the law in this state and elsewhere that an indemnitor is not liable to the indemnitee unless the liability is directly provided for by the indemnity agreement. Superior Ice and Coal Co. v. Belger Cartage Service, Inc. et al., Mo.Sup., 337 S.W.2d 897. Before the in-demnitor is liable for losses resulting from the negligence of the indemnitee, the intention to assume such liability must appear clearly in the instrument. We quote from the opinion of this court in Thomas v. Skelly Oil Co., Mo.App., 344 S.W.2d 320, 322:

“In Missouri, parties may legally bind themselves to indemnify against liability for future acts of negligence. Sinclair Refining Co. v. Stevens, 8 Cir., 123 F.2d 186, 189; Kansas City Stock Yards Co. v. A. Reich & Sons, Mo., 250 S.W.2d 692, 698.
“However, to be binding on the adverse party, the contract must clearly indicate that such indemnity provisions apply in cases of damage resulting from the negligent acts of the party claiming the benefits of the contract. Meyer Jewelry Co. v. Professional Building Co. (K.C.), Mo.App., 307 S.W.2d 517, 521. There we said: ‘In line with the great weight of authority we hold that since the lease does not in plain terms exonerate the appellant-landlord from its own acts of negligence, it does not bar plaintiff’s claims.’ In Missouri District Tel. Co. v. Southwestern Bell Tel. Co., 338 Mo. 692, 93 S.W.2d 19, 28 (en banc), the Supreme Court said: ‘It is well settled that a contract of indemnity will not be construed to indemnify the indemnitee [agent] against losses resulting to him through his own negligent acts, where such intention is not expressed in unequivocal terms.’ (Emphasis ours.)”.

In Paro v. Pennsylvania Railroad Co. et al., Mo.App., 348 S.W.2d 613, 616, the same principle was enunciated. Again we quote:

“Whether an indemnitee can recover for losses caused by his own negligence depends on the language of the contract and what may be termed the subject matter thereof. Terminal R. Ass’n of St. Louis v. Ralston-Purina Co., 352 Mo. 1013, 180 S.W.2d 693. It has been held' that as to acts which are not illegal, it is not contrary to public policy for an in-demnitee to expressly contract with an in-demnitor to save him harmless, as to third persons, from a loss sustained as the result of his own negligence. Kansas City, Mo. & B. R. Co. v. Southern Ry. News Co., 151 Mo. 373, 52 S.W. 205, 45 L.R.A. 380. However, the great weight of authority supports the rule that a contract of indemnity is not to be construed to indemnify the indemnitee against losses resulting to him through his own negligent acts ‘ “where such intention is not expressed in unequivocal terms.” ’ ”.

The addition owned by Meadowmere was duly incorporated into and became a part of the City of Grandview. The record evidence showing this fact and the exact date thereof are not in the transcript. However, reference was made thereto in the testimony of two witnesses. Mr. Fred E. J. Hornaman, who in 1956, was vice-president of Meadowmere, said: “The annexation had been approved, at some given date which I cannot remember”. Mr. W. Ruport Ramsey, who was mayor of Grand-view from April, 1955 until April, 1957, testified that he did not recall the exact date of the annexation but it was prior to April, 1957.

We reiterate that the only testimony as to the cause of defendant’s losses as referred to in its counterclaim came from the witness Regna Vanatta, who said the lawsuits “arose out of the improper operation of the lagoon”. The operation of the lagoon, after it was constructed, was by the defendant City and not by Meadowmere or by Tri-City, the actual construction contractor. Hence the negligence, if any, was the negligence of the City.

It is our opinion that the contract’s indemnity provisions applied only to the construction itself. Certainly an intention to indemnify further or to indemnify against losses occasioned by defendant’s negligence is not “unequivocally” expressed in the agreement. In this connection we refer further to the contract itself. Paragraph 1 thereof provides for advancement of funds “for the construction of a primary sewage treatment facility”. Under Paragraph 2, the City agreed to enter into a contract with the Tri-City Construction Company for the construction of a “sewage treatment facility and outfall sewer”. By the indemnity provision itself the indemnity covered damages “arising out of or in connection with the performance or rendition of any work or services under this contract”. (Italics ours). This contract was for “construction” and not for “operation” of sewer facilities. Tri-City’s agreement was to construct — not to operate —and the indemnity covered only those things done “under this contract”. We cannot and do not construe the agreement as covering the damages described in defendant’s counterclaim. Our conclusion in this respect disposes of the counterclaim and makes mandatory our affirmance of the judgment for plaintiff on defendant’s counterclaim.

At least one other question arises and might be mentioned, namely, was the written contract of March 2, 1956, ever validly entered into by the City so as to bind the City? Defendant in the briefs and argument defending against plaintiff’s petition, contends the contract was never duly and legally consummated. It says this is so because (1) the Resolution authorized and approved by the Board of Aldermen is not an Ordinance and (2) the City could only validly enter into such a contract by and through an Ordinance duly passed. It is generally understood that a city can only act by an Ordinance duly enacted, and not by Resolution. However, since we are not ruling the case on this point we shall not explore the authorities on the question. We believe, however, that one observation should be made. In defending against plaintiff’s petition, the City urges that the contract was never validly entered into, but in support of its counterclaim, it asserts that the contract was validly entered into and that the indemnity provisions thereof were lawfully entered into. These two opposite positions are neither consistent, compatible nor are both tenable.

In reviewing a court tried case we must review the evidence and reach our own conclusion, affording, however, deference to the trial judge as to credibility. The defendant bears the burden as to proof of all the essential elements of its counterclaim. In our opinion it has not sustained that burden and the trial court did not err in holding that defendant was not entitled to recover the $5,202.95 which it spent in defense of suits and paying judgments against it which arose out of its (according to the only evidence before us on the question) “improper operation of the lagoon”.

Although it is our conclusion that the order of the supreme court dismissing plaintiff’s appeal results in affirming the judgment on plaintiff’s petition we shall, nevertheless, in the interest of complete clarity and finality, declare our determination on both the petition and the counterclaim.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM:

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

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    John R. DOLAN, Plaintiff-Respondent, v. D. A. LUBRICANT CO., a Corporation, and Kent B. Thomas, Defendants-Appellants.
    No. 24609.
    Kansas City Court of Appeals. Missouri.
    April 3, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 5, 1967.
    Application to Transfer Denied July 10, 1967.

      Tweedie Fisher, Jefferson City, for appellants.
    Kelso Journey, Clinton, for respondent.
   MAUGHMER, Commissioner.

This is a suit to collect damages for personal injuries allegedly sustained by plaintiff, John R. Dolan, when the Triumph automobile he was driving was struck from the rear by a Ford operated by the defendant, Kent B. Thomas. It was conceded that the Ford automobile was owned by the defendant, D. A. Lubricant Company, and that Mr. Thomas was working for that company at the time of the accident. The verdict and judgment were for plaintiff and assessed his damages at $15,000. Both defendants have appealed.

The accident occurred about 7:30 p. m. July 24, 1962 on Broadway Avenue in Sedalia, Missouri. Broadway Avenue at the time was a part of Highway 50 with four traffic lanes, two running east and two west. The street was well lighted, the weather fair, the pavement dry and there was an eight foot parkway on either side. Plaintiff was driving his vehicle eastward and his wife was sitting in the right front seat, when they were struck by the Ford. Both vehicles were in the outside lane. The defendant Thomas said he was putting a receipt on the sun visor — momentarily took his eyes off the street and did not see plaintiff’s car in time to stop. After the collision, the Triumph came to rest 150 to 168 feet (estimates of plaintiff and his wife) from the place of impact.

Mrs. Dolan estimated their speed to be about 20 miles per hour. Plaintiff testified that his car’s “bumper guards had been driven into the body of the car and the doors were sprung so you couldn’t get them shut after they had been forced open. Just looked like the back end had been pushed towards the middle”.

On appeal defendants do not assert any error touching liability, the instructions or the amount allowed. They present two assignments of error. They say first, that the court erred in permitting respondent’s witness, Dr. E. L. Rhoades, over objection, to answer a hypothetical question which assumed “that respondent’s head was thrown over the back of the front seat” because such assumption “assumed a fact that was not in evidence”. They contend second, that the court erred “in allowing Dr. Rhoades to testify that in his opinion arthritis found in the plaintiff’s neck was caused by the collision, over the objection of defendants that Dr. Rhoades did not know the onset of the arthritis”. The defendants make no additional or other assignments of error. We shall, therefore, in summarizing the evidence, include only those portions which we believe pertain to these two points. The defendant, Kent B. Thomas, driver of the Ford, did not testify.

Does the evidence fairly establish or reasonably tend to establish that “plaintiff’s head was thrown over the back of the front seat” so as to justify inclusion of such an assumption in plaintiff’s hypothetical question? Plaintiff stated that his 1959 Triumph was equipped with two buckets seats in front and that this bucket seat or the back of the seat “reached up to about my shoulder blades”; that after the collision, “I was shook back against the seat and then pitched forward against the steering wheel and the windshield”. He said the vehicle was struck with such force as to “spring the doors” and drive the bumper guards into the car. Plaintiff was removed on a stretcher from the scene to an ambulance which had been called and by it taken to a hospital for emergency treatment. The following is a question which was put to Dr. Frank R. Williams (the only witness who testified for defendants), together with his answer:

“Q. When a man is seated in a car and struck from behind by considerable force, which causes considerable damage to the car, it’s the neck that takes the weight of the head back, above the height of the seat ? It’s the free agent, in other words; it remains and the body moves forward?
“A. Right. Actually, the body moves forward and it first gives you this and then this (indicating), and since you do not have any support — and this is getting back to the Air Force. That’s the reason they put head rests behind pilot seats, you go further than you normally move”.

The hypothetical question as actually put to Dr. Rhoades was not quite “that respondent’s head was thrown over the back of the front seat” as defendants say, but rather, “His body first went in a backward direction; his head back over the seat in which he was riding and forward into the dash and steering wheel”. However, we do not see any material difference. It is true that plaintiff did not squarely and specifically testify either that his “head was thrown over the back of the front seat” or “back over the seat in which he was riding.” Nevertheless for the purpose of a hypothetical question, we believe that such an assumption was justified under the evidence and physical facts. In Heppner v. Atchison, Topeka & Santa Fe Ry. Co., 297 S.W.2d 497, 506, our supreme court said:

“As to the other facts hypothesized we may say that it is not necessary that they be proved by the direct testimony of any eyewitness. Facts may be included of which there is substantial circumstantial evidence. Pettis v. St. Louis Public Service Co., Mo.Sup., 240 S.W.2d 909. In the instant case there was evidence that trainmen customarily rode with their backs toward the rear window of the cupola; that the caboose gave an unusual forward lurch which would tend to throw a person toward the rear

We also quote briefly from Dillard v. East St. Louis Ry. Co., Mo.App., 150 S.W.2d 552, 556:

“It is not essential that a hypothetical question include all the facts the evidence tends to prove. It is sufficient if the question fairly states such facts as the proof of the examiner fairly tends to establish, and fairly presents his claim or theory”.

Appellants contend and cite authorities to the effect that “a hypothetical question should be predicated upon the evidence”. We subscribe fully to this principle but in our opinion the phrase objected to is predicated upon the evidence. We rule this first assignment to be without merit.

Appellants’ second assignment requires examination of the testimony of Dr. E. L. Rhoades, a general practitioner, who examined, treated and took x-rays of plaintiff in March, 1963 (almost eight months after the accident) and again on March 21, 1966. It is not necessary, we believe, to detail fully his findings and prescribed treatment. It is sufficient to say that he found “lipping or narrowing of the interspaces of cervical 6 and 7 and dorsal 1 vertebrae”. He found limitation of motion in the neck and back. The condition had worsened at the time of his second x-rays. His diagnosis was traumatic arthritis. He was not able to declare, based solely upon his examinations, x-rays and objective findings, just when the calcification or arthritis began or had its inception, and he so stated.

Next the hypothetical question put to the doctor by plaintiff’s counsel. This question assumed that at the time of the accident plaintiff was 42 years of age; had been in good health throughout his life, had never suffered an accident, or serious illness or been in a hospital as a patient; that at the time and for years before he had been engaged in the work of obtaining right-of-way easements and negotiating with landowners for rights to construct missile sites and pipelines; that this work required him to walk over hills, across ordinary land obstructions and drive a car regularly over an area of a 50 mile radius from Sedalia, Missouri; that he had performed and was performing this work regularly six days per week and eight hours per day and had never had any difficulty with his health; that he participated in fishing and hunting and sports which required physical endeavor, and coached a Little League Baseball team. The question then described the bucket seats and the striking from the rear. The plaintiff had presented evidence as to all of these facts and defendants do not contend otherwise. Defendants did not at the time and do not now suggest any material fact that was lacking in the hypothetical question. Next came the disputed assumption, namely, that “his body first went in a backward direction, his head back over the seat in which he was riding and forward into the dash and the steering wheel where his chest hit the steering wheel and his head hit the forward part of the car”. We now set out in full the concluding part— actually the question itself and the answer:

“Q. Assuming those facts to be true, doctor, can you tell the jury whether or not you have an opinion, based upon reasonable medical certainty, as to whether or not that collision, the violence that Mr. Dolan was subjected to, did cause the conditions that you found in Mr. Dolan’s neck and you have described to the jury in your testimony? A. I have an opinion.
“Q. What is that opinion?
“A. That the present condition of Mr. Dolan could have resulted with reasonable medical certainty from such a collision”.

Defendants’ objection was that “this doctor testified he didn’t know how long this arthritic condition had existed, and since he did not know how long this arthritic condition existed, he obviously couldn’t answer any question, if the Court please, as to whether or not this arthritic condition was as a direct result of this automobile collision”. The court permitted the answer and stated that it would go to the weight the jury would give to his testimony.

There were no x-rays in evidence or, so far as the testimony is concerned, in existence, that were taken just prior to the accident. Manifestly, a doctor cannot state definitely, of his own knowledge, from x-rays taken months or years after such an occurrence the exact date upon which the arthritis found began or had its onset. If he could, there would be. little need for a hypothetical question. However, it does not follow that a medical expert cannot formulate and express an opinion, if he has one, based upon additional circumstances or assumptions which were revealed or shown by other testimony or other evidence. In such a situation the medical expert may express his opinion that the injury was incurred or, as he stated in the case before us, “could have resulted with reasonable medical certainty from such a collision”. It is a very common practice to ask and to allow a medical expert in damage suits to testify both from his personal knowledge and hypothetically, based upon evidence produced from others by the inquirer. The law on this proposition was generally stated by our supreme court in the recent case of Harp v. Illinois Central Railroad Co., Mo.Sup., 370 S.W.2d 387, 391. We quote therefrom:

“As an exception to the general rule that a witness may not express an opinion, an expert witness may do so when qualified as such and when the subject matter is not of such common knowledge to invade the province of the jury. Schears v. Missouri Pacific Railroad Company, Mo., 355 S.W.2d 314, 321; Christian v. Jeter, Mo., 287 S.W.2d 768. There is no question but that proper opinion testimony as to causal connection is competent and can constitute substantial evidence. Dorsey v. Muilenburg, Mo., 345 S.W.2d 134, 138; Schaefer v. Rechter, Mo., 290 S.W.2d 118; Ketcham v. Thomas, Mo., 283 S.W.2d 642; Waterous v. Columbian Nat. Life Ins. Co., 353 Mo. 1093, 186 S.W.2d 456, 459; Glowczwski v. Foster, Mo.App., 359 S.W.2d 406. However, the expert’s opinion must not be a mere guess or conjecture but must be based upon facts and adequate data, and the opinion must have in support of it reasons and facts supported by competent evidence which will give the opinion sufficient probative force to be substantial evidence. Gaddy v. Skelly Oil Co., 364 Mo. 143, 259 S.W.2Ú 844; Schaefer v. Rechter, supra; Kimmie v. Terminal R. R. Ass’n, 334 Mo. 596, 66 S.W.2d 561.”

The same court in Giambelluca v. Missouri Pacific R. R. Co., Mo., 320 S.W.2d 457, 463, declared the same principle. Again we quote:

“An expert witness is one who by reason of education or specialized experience possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion or of deducing correct conclusions. However, the expert’s opinion, which the jury may accept, must not be a mere guess — it must be based upon facts and adequate data. Vitale v. Duerbeck, 338 Mo. 556, 92 S.W.2d 691; Waldron v. Skelly Oil Co., 363 Mo. 1146, 257 S.W.2d 615; Gaddy v. Skelly Oil Co., 364 Mo. 143, 259 S.W.2d 844. His ‘positive opinion must have to support it reasons and testimony which will give it sufficient probative force to be substantial evidence.’ Kimmie v. Terminal R. Ass’n of St. Louis, 334 Mo. 596, 66 S.W.2d 561, 565. The facts upon which an expert’s opinion is based, like the facts sufficient to support a verdict, must measure up to the legal requirements of sub-stantiality and probative force and, upon appeal, the ‘question whether such opinion is based on and supported by sufficient facts or evidence to sustain the same is a question of law’ for the appellate court”.

It is our opinion that the hypothetical question propounded to Dr. Rhoades and his answer fall within the limitations prescribed by the supreme court in the two cases just referred to. We believe the assumptions in the hypothetical question were based upon evidentiary facts and testimony adduced by plaintiff, who had the right to incorporate the same in the question. It is our belief further that the doctor’s opinion meets the legal requirement of substantiality and probative force. The court did not err in permitting the answer. We rule this second point against appellants.

No other assignments of error having been presented, the judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM:

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

All concur.


author: BRADY, Commissioner.

text:
    Verna MALON, Plaintiff-Appellant, v. SERVICE AND MANAGEMENT COMPANY, Inc., Defendant-Respondent.
    No. 32050.
    St. Louis Court of Appeals. Missouri.
    May 16, 1967.

      Fred Roth, St. Louis, for plaintiff-appellant.
    Gentry, Bryant & Sheppard, Robert Nagel Jones, St. Louis, for defendant-respondent.
   BRADY, Commissioner.

Jury trial in this cause resulted in a verdict in favor of plaintiff in the sum of $3,500.00. Thereafter the trial court sustained the defendant’s motion for judgment in accordance with its motion for a directed verdict and set aside the judgment entered in favor of plaintiff who appeals.

However inartfully expressed in the petition, it is clear that plaintiff’s theory was that defendant who owned the house in which plaintiff lived voluntarily attempted to repair a leaky roof but did not use ordinary care in doing so with the result the roof continued to leak and plaintiff walking in the kitchen at night was caused to fall and suffer injuries due to the accumulation of water on the kitchen floor. The jury found in favor of the plaintiff and against the defendant and assessed plaintiff’s damages at $3,500.00. The trial court set aside the judgment entered on this verdict on the specified ground that “there was no evidence tending to establish any negligence of the defendant which proximately caused plaintiff’s injuries.” The case was tried prior to MAI becoming effective. That portion of plaintiff’s verdict directing instruction which is pertinent to this issue required the jury to find plaintiff was caused to fall as a direct result of the negligence of the defendant in failing to use ordinary care in repairing the roof. We take this action of the trial court as the equivalent of ruling the plaintiff failed to make a submissible case.

Plaintiff fell upon two different occasions. The first of these falls was on February 21, 1962, and the issues as to her injuries resulting from that fall were stated in Count I of plaintiff’s petition. The jury found in favor of the defendant as to that count of plaintiff’s cause of action and since no appeal was taken from that decision the fall of February 21, 1962, passes out of the case. Count II of the petition referred to plaintiff’s injuries arising from a fall on or about April 5, 1962, and it was as to the injuries resulting from this fall that the jury found in favor of the plaintiff. We will therefore confine our recitation of the evidence, taken in the light most favorable to the plaintiff, to that having reference to the fall in April.

The evidence in this case is not really in dispute except as to one fact. Plaintiff contends defendant had men working upon the repair of this roof upon two occasions while defendant insists the men inspected on the first occasion and actually worked upon the roof only on March 8, 1962. The parties stipulated as to work being done on that date and, taking the evidence in the light required of us, we hold the evidence established that work was also done upon an earlier occasion in February.

Plaintiff and her family moved into this house in September of 1961. It was in January of 1962 the ceiling in the kitchen started dripping water. Plaintiff’s husband made a complaint and sometime during the first week in February a man came out to repair the roof. He asked where it was leaking and was given the answer that it was leaking only in the kitchen. The man got onto the roof and the plaintiff’s husband testified he heard the man walking around on that portion of the roof above the kitchen. He stayed about forty-five minutes. On that occasion the repairman had a broom and two 5-gallon cans of tar with him but there was no evidence as to whether the tar in the buckets was then put on the roof. The roof continued to leak when it rained and between February and March of 1962 the ceiling in the kitchen was damp from water dripping, the wallpaper was cracked, and there was a big piece of it hanging down.

They again complained and on March 8, 1962, some men returned to the house to repair the roof. They carried two buckets of tar up the ladder and onto the roof. After that there was no more leakage until just prior to plaintiff’s fall in April. There was no evidence as to precipitation during the period from this repair until the day of plaintiff’s fall on April 5th.

When they first moved in there were no cracks in the ceiling. Plaintiff’s Exhibits 1 and 2 show perpendicular cracks in the ceiling from which the ceiling paper has peeled away. One is about 9-10 feet long and the other 4 — 5 feet long. These cracks in the ceiling increased in size between the date of the first repair and the time of the plaintiff’s fall. Every time it rained the leak got progressively worse. The plaintiff and her family placed pots and pans around on the floor and attempted to catch this water in that manner but water still got all over the floor. It often had to be mopped up after a rain.

There is nothing in defendant’s evidence of assistance to plaintiff’s case. However, to fully understand what is involved here and the manner in which the repair was done we will set out certain portions of defendant’s evidence. The defendant offered testimony by the witness Squire who qualified as an expert in roof repair as to how the work was done on this roof. His testimony was that the cracks in the ceiling were not evident when you looked at the roof from the top of it and that he made an inspection of the whole roof and saw no defects. His testimony and that of his assistant, Tybura, was that they located the area over the cracks in the ceiling by measuring their distance from the walls and then, when on the roof, they measured the distance from the walls thereby fixing that area of the roof above the ceiling cracks. They raked back the gravel, swept all the loose dust away, marked off an area extending four feet to each side of the crack, poured the asphalt emulsion on the roof, spread it out over a sixty-four square foot area, and then raked the gravel back over this area so that it would hold the tar in place. Squire testified this was the proper way to repair a flat roof of this type using the cold tar method. It is undisputed there was never any repair done inside the house.

The fall upon which Count II of plaintiff’s petition is based and with which this appeal is concerned occurred about 1:30 A.M. on April S, 1962. Plaintiff’s evidence was that it rained off and on that evening and was still drizzling intermittently at that time while plaintiff was watching television. She got up and went into the kitchen intending to go to the stove to turn on a light. While doing so her evidence is that she fell on the floor which had become slippery from the water which was dripping down from the crack in the ceiling of this room. Plaintiff’s son was in his room in the basement at the time and he heard his mother fall. She called for him and when he came back upstairs he found his mother lying on the floor by the stove and he noticed there was water on the floor at that place in a puddle which he estimated as being “two feet across.” It further appeared that the kitchen floor sloped somewhat toward the point at which the stove was placed and water would collect there.

The only other testimony pertinent to this appeal was given during plaintiff’s cross-examination when she was asked whether the roof would still leak had the repairmen done a good job on it. She replied “ * * * they could overlook something, not covered with enough tar or not did a proper job at the time.”

Some general rules of hornbook law which require no citation of cases to substantiate might help in the understanding of the issues here involved. A fair inference from the plaintiff’s own testimony that they moved into the house in September of 1961 and did not have any trouble with the roof until January of 1962 is that whatever condition caused the roof to leak came into existence after the tenant (plaintiff and her husband) came into full possession of the premises. In the absence of an agreement in the lease binding the landlord to put or keep the premises in repair, and there is no such evidence in the instant 'case, he is not liable in damages for failure to do so or for injuries sustained by the tenant for reason thereof. Glenn v. Hill, 210 Mo. 291, 109 S.W. 27, 1. c. 28, 16 L.R.A.,N.S., 699. However, the corollary of this rule is that if the landlord does undertake to make repairs either voluntarily or by covenant, he must exercise reasonable care in doing so and is liable to his tenant for injuries caused by his negligence or unskillfulness in making the repairs. Bartlett v. Taylor, 351 Mo. 1060, 174 S.W.2d 844. For an example of voluntarily undertaking to make repairs see Bloecher v. Duerbeck, 333 Mo. 359, 62 S.W.2d 553, 90 A.L.R. 40, and for other such cases see Mo. Digest, Landlord & Tenant, In many jurisdictions a landlord who voluntarily undertakes to make repairs is not liable for any subsequent injury to the tenant unless by his undertaking he has made the physical conditions of the premises worse or has by the repairs caused the premises to have a deceptive appearance of safety. This is not the rule in Missouri. Bartlett v. Taylor, supra, [3], [4]. In this jurisdiction all that need be shown is that the landlord who has voluntarily undertaken repairs did not exercise ordinary care in doing so and as a direct or proximate result of which failure the tenant was injured.

It follows from what has been said above that the determinative issue in the instant case is a factual one; i.e., was there any evidence the defendant failed to use ordinary care in making repairs to this roof. One way that the defendant could have failed to use ordinary care and be negligent is by the use of improper materials. In view of plaintiff’s testimony when asked for her opinion how this roof could continue to leak although the repairs had been twice attempted it is apparent plaintiff never contended defendant failed to use ordinary-care by reason of the use of improper materials. Plaintiff stated the leak could continue if the roof was “not covered with enough tar” or if the men had not “did (done) a proper job at the time.” Such an answer would seem to negate any contention of the use of inferior or improper materials. But even if it does not negate such contention, the evidence totally fails to substantiate any such contention. There was no evidence that the defendant should have repaired the roof with hot tar rather than by the cold tar method; that he should have used more tar or a better grade of tar; that more or less gravel should have been used or a different kind of gravel; there was no evidence of this or any of similar nature. Plaintiff offered no evidence on this issue at all.

Plaintiff’s testimony does contain the implication that her position is based upon the contention defendant did the work in an unskillful manner for she stated the leak would continue if insufficient tar had been used or if the men hadn’t done a proper job. In this regard it must be noted that such an answer was stated only as a possibility. She did not state that there was not enough tar used or that the men hadn’t done the work in a skillful manner and neither was there any other testimony of that nature. Neither the plaintiff nor anyone for her even inspected this work. To the contrary, the evidence as given by the witness Squire to the effect that he repaired the roof in the proper manner to repair roofs of this type stands uncontra-dicted.

The main burden of plaintiff’s brief is placed upon the inference that defendant repaired the wrong area of the roof. There is no actual evidence that the wrong area of the roof was repaired but the plaintiff seeks to draw such an inference from the fact that water continued to drip down from the ceiling. But there is no evidence that this water was caused by a leaky roof. No one, not even plaintiff, so testified. All that was stated was that water dripped from the ceiling. Plaintiff’s theory is based upon the assumption that since the water leaked down from the ceiling it must have come from a defect in the roof. The difficulty with such a contention is that it is just as reasonable to assume the water gained entry in some other manner. Indeed, it is even more reasonable to do so in view of plaintiff’s own theory the roof was repaired at least once before March 8th. It requires no citation to substantiate the position that when two inferences can be drawn with equal reasonableness from a fact, that fact does not constitute sufficient proof to justify submission of the issue to a jury.

There is another inference plaintiff seeks to draw from the fact the roof continued to leak. She not only urges that the defect was in the roof as stated above but also that it was a discoverable defect. She argues therefrom that defendant’s workmen failed to discover it and repaired the wrong area of the roof. As heretofore stated, the only persons who made any inspection of this roof were the defendant’s workmen, Squire and Tybura. The only direct evidence on this issue is that defendant’s workmen examined the roof when they were standing on it, that by such an examination the defect could not be located, and that they inspected the entire roof and found no evidence of any defect. In view of such uncontradicted evidence that there was no discoverable defect any inference that the wrong area of the roof was repaired, whether such an inference is soundly drawn or not, is unavailable to the plaintiff for the reason that inferences are not permitted to outweigh contrary uncontra-dicted evidence even though such evidence is given in behalf of one’s adversary. Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511, [6] and cases there cited..

The judgment must be affirmed.

PER CURIAM:

The foregoing opinion by BRADY, G, is adopted as the opinion of the court. The judgment is affirmed.

ANDERSON, P. J., RUDDY, J., and Theodore McMillian, Special Judge, concur.


author: DOERNER, Commissioner.

text:
    STURMVILLE LUMBER COMPANY, Plaintiff-Respondent, v. Silas DAVIS, Defendant-Appellant.
    No. 32572.
    St. Louis Court of Appeals. Missouri.
    May 16, 1967.

      William C. Bernhardt, DeSoto, for defendant-appellant.
    Anderson, Hollingsworth, Anderson & Brooking, Hillsboro, for plaintiff-respondent.
   DOERNER, Commissioner.

This suit, on an open account, was filed in the Magistrate Court of Jefferson County, where defendant prevailed. Plaintiff’s appeal to the Circuit Court of that county, tried before the court, resulted in a judgment in its favor for $163.66, together with interest, from which defendant has appealed.

In 1961 defendant, a carpenter, was building a house in De Soto. The construction was financed by a $7500 loan from the Carondelet Savings & Loan Association, the proceeds of which were disbursed by The Jefferson County Abstract Company as escrow agent. Lumber and materials for the job were purchased by defendant from plaintiff, and a bill was rendered defendant in April, 1961. The account sued on was apparently attached to the petition and was introduced as plaintiff’s Exhibit No. 1, but it does not appear in the transcript and neither it, nor plaintiff’s Exhibit No. 2, described as cash and individual tickets, have been lodged with us.

The record indicates that by the exhibits mentioned and the testimony of plaintiff’s bookkeeper plaintiff showed that defendant owed $1163.66 in September, 1961, that a payment of $1000 was received in October, 1961, and that there remained due at the time of trial the sum of $163.66, although its proof was by no means as extensive as that described in J. D. Streett & Co. v. Bone, Mo., 334 S.W.2d 5. However, defendant makes no complaint regarding the sufficiency of plaintiff’s evidence. What defendant does urge, as we understand his brief, are the defenses of accord and satisfaction, and payment.

In support of the first of such defenses defendant points to his evidence that The Jefferson County Abstract Company by a check dated October 3, 1961, paid plaintiff the sum of $1000, which check contained the statement: (Printed) “By Endorsement this Check is accepted in Full Payment of Account Shown Hereon (typewritten) in full payment of bill of Silas Davis.” Plaintiff’s witness, who was its assistant manager at the time the check was received, admitted that plaintiff had received the check and testified that plaintiff had credited defendant with that sum on defendant’s account, but maintained that it was not the full amount of the bill. Defendant did not introduce any evidence indicating that a dispute existed regarding defendant’s account or any of the charges made by plaintiff, nor any evidence other than the foregoing check that plaintiff had agreed to accept the $1000 in full satisfaction of defendant’s account. An accord and satisfaction contemplates an agreement between the parties to give and accept something different from that claimed by virtue of the original obligation and both the giving and the acceptance are essential elements. Bohle v. Sternfels, Mo., 261 S.W.2d 936, 941. In general an accord and satisfaction occurs and is binding only when there is a well-understood and executed agreement to settle or compromise all demands arising between the parties concerning which they have a dispute. Green v. Whaley, 271 Mo. 636, 197 S.W. 355, 360. And the rule is that payment of a part of a debt is not a satisfaction of the whole debt, even when the creditor receives the part for the whole and receipts for the whole demand. Collins v. Gaskill, 359 Mo. 171, 221 S.W.2d 181,185; Scott v. Parkview Realty & Imp. Co., 241 Mo. 112, 145 S.W. 48. In the absence of any evidence that a dispute existed concerning defendant’s account and that the $1000 was tendered and accepted in full satisfaction, or of any other consideration, defendant did not sustain its burden of establishing the affirmative defense of accord and satisfaction. Gulfport Wholesale Lumber Co. v. Boeckeler Lumber Co., Mo.App., 287 S.W. 799.

Defendant’s second defense, that of payment, is based on a lien waiver executed by plaintiff, dated October 9, 1961, which reads in part:

“Whereas, we the undersigned Sturm-ville Lumber Co. have been employed by Silas Davis to furnish lumber for the building known as DeSoto Job
“Now, therefore, know ye, that we the undersigned for and in consideration of the sum of One thousand, one Hundred Seventy-five and 30/100. Dollars, and other good and valuable considerations, the receipt whereof is hereby acknowledged, * *

Defendant’s entire account, according to plaintiff’s evidence, totalled $1163.66 in September, 1961. Obviously, if defendant paid plaintiff $1175.30 on October 9, 1961, as plaintiff acknowledged in the foregoing lien waiver, defendant not ohly paid his account in full but overpaid it. Nevertheless, when defendant offered the lien waiver in evidence the trial court sustained plaintiff’s objection that it was irrelevant and immaterial and excluded it. In so ruling the court erred, Crocker v. McCartney, Mo.App., 24 S.W.2d 649. For while not conclusive, the acknowledgment in the lien waiver of the payment of $1175.30 on defendant’s account was prima facie evidence of the payment recited therein. Bonnot v. Grand Lodge Brotherhood of Railroad Trainmen, 229 Mo.App. 519, 81 S.W.2d 360. In fact, it has been said that when un-contradicted a receipt is conclusive, Goodman v. Griffith, 155 Mo.App. 574, 134 S.W. 1051.

We are thus brought to the problem of the disposition to be made of the case. By Civil Rule 83.13(c), V.A.M.R., we are required to dispose finally of a case on appeal, “ * * ■ * Unless justice requires otherwise.” The lien waiver tends to show that plaintiff received payment in full of defendant’s account but it is apparent from the record that in view of the court’s ruling excluding defendant’s exhibit the plaintiff did not attempt to introduce any evidence regarding the circumstances surrounding the execution of the waiver, or any evidence it may have to contradict the receipt. We are of the opinion that under such circumstances justice requires that a new trial be ordered. Boland v. Dehn, Mo.App., 348 S.W.2d 603.

Accordingly, the judgment is reversed and the cause remanded for a new trial.

PER CURIAM:

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court. Accordingly, judgment reversed and cause remanded for new trial.

RUDDY, Acting P. J., and WOLFE, J., concur.

ANDERSON, P. J., not participating.


author: RUDDY, Judge.

text:
    In the Matter of Clyde Anthony THOMAS, Robyn Thomas, and Robert Thomas, Minors. William Dickie TAYLOR, Petitioner-Respondent, v. Clyde THOMAS, Respondent-Appellant.
    No. 32701.
    St. Louis Court of Appeals. Missouri.
    May 16, 1967.
    Frank Mashak, St. Louis, for respondent-appellant.
    No attorney for petitioner-respondent.
   RUDDY, Judge.

The appeal in this matter was originally taken to the Supreme Court of Missouri. Appellant contended that his constitutional rights were violated when the trial court changed his natural child’s name from Thomas to Taylor. The Supreme Court of the State of Missouri found that there was no constitutional question before it and transferred the cause to this court for lack of jurisdiction. In our summation of the nature of this case and the facts that were before the trial court we adopt portions of the opinion of the Supreme Court of Missouri (404 S.W.2d 199) with some changes, without the use of quotation marks.

William Dickie Taylor filed a petition in the Circuit Court of the City of St. Louis, Juvenile Division, asking for the adoption of three minor children, Clyde Anthony Thomas, Robyn Thomas, and Robert Thomas. The petitioner’s wife, Della, is the mother of the three minors and she filed her consent for the adoption in writing.

Clyde Thomas, respondent below, filed an answer asking that the court refuse the adoption of his child, Clyde Anthony Thomas. He denied that he was the father of Robyn and Robert. A guardian ad litem was appointed for the minors. After a hearing, the court denied adoption but ordered the names of the three minors to be changed from Thomas to Taylor. Clyde Thomas filed a motion asking that the portion of the decree changing the name of his child Clyde Anthony Thomas be deleted or, in the alternative, to grant him a new trial. He also asked that the order assessing a portion of the costs against him be set aside. These requests were denied and Clyde Thomas appealed, as we have pointed out, to the Supreme Court of the State of Missouri.

The facts, as shown by the record, are as follows: Clyde Thomas and petitioner’s wife, Della Taylor, had been married but were divorced in February, 1962. While they lived together, the three minor children involved in this case were born. Clyde Thomas claimed Clyde Anthony Thomas was his child but that Robyn and Robert were not. Della Thomas Taylor admitted that to be so. The divorce decree granted custody of Clyde Anthony Thomas to the mother.

Petitioner William Dickie Taylor and Della Thomas, mother of the three minors, were married on April IS, 1963. At the time of trial, the three minors were in the custody of the petitioner and Della. It was in evidence that William Dickie Taylor, prior to his marriage to Della, had been living with a woman named Velma (Osborne) Taylor. They had four children. These children were in custody of their mother Velma who was receiving aid through the A.D.C. program.

Petitioner William Dickie Taylor testified that he was never married to Velma. There was substantial evidence that he was. It was admitted that no divorce was ever applied for or obtained by Velma or William Dickie Taylor.

The trial court entered a decree denying the adoption of the three children on the ground that the evidence did not definitely show that petitioner Taylor and Della were legally married. By its decree, the trial court did order that the three minors remain in the custody of their mother and that their names be changed from Thomas to Taylor. It was stated in the decree that “the best interest of the three minor children would be served by the change of their names from Thomas to Taylor.”

We are only concerned in this appeal with that part of the trial court’s order changing the name of Clyde Anthony Thomas to Taylor and that part of the court’s order assessing part of the costs against the appellant, Clyde Thomas.

We think the findings and judgment of the trial court should be reversed and in support of the result we reach we state the following additional facts: Clyde Anthony Thomas was born on September 3, 1954 and was approximately nine and one-half years of age at the time the proceeding for adoption was instituted. Della was married to Clyde Thomas on the 20th day of March, 1954. The two lived together until the early part of 1956 when they separated. The two children Robert and Robyn were born in November, 1956, and it is admitted by Della that Clyde Thomas was not their father. It seems that during the years 1955 and 1956 Clyde Thomas was in the military service and during much of the time he was in the service he was in the hospital. The service hospital record was introduced showing that he was hospitalized from December 1, 1955, until April 24, 1956. This was a continuous confinement. Clyde Thomas testified he did not know that he was divorced until the middle of January 1963. He married his present wife on January 27, 1963. Clyde Thomas learned approximately two years before the hearing that he had cancer of the throat at which time he was residing in San Francisco, California. He continues to be treated for this condition. He said he was hospitalized at the time Della obtained the divorce. While he resided in San Francisco, California he sent Della several checks for support of the child and on one occasion he sent her $50.00. He said that he had his mother, who resides in St. Louis purchase clothing for the child, such as winter suits, summer suits, shoes and that she would pay the bills for these purchases and he would reimburse his mother. He told the court that he is willing to continue to support the child. He has been back in St. Louis since the latter part of August, 1964 and said he was not employed during the year 1963 and obtained his first employment when he came back to St. Louis. On his return to St. Louis he asked to see the boy but has been denied this privilege by Della and the petitioner. He complained that the petitioner and Della would not let the boy call him or talk to him and complained about the shabby condition of the boy’s clothing. He told the court that he opposed the adoption of the boy by the petitioner and strongly opposes the change of the boy’s name from Thomas to Taylor.

The mother of appellant, Clyde Thomas, testified that the boy, Clyde Anthony, lived with her during the summer of 1963 until it was time to go back to school. She supported him during this period and thereafter he would live with her on weekends, coming Friday night and returning to Della on Sunday night. She said that her son, Clyde Thomas, supplied the boy’s clothes and supported him while he was with her.

Della testified that other than some payments made by Clyde Thomas in 1962 she received no other support from him for the child. However, she did admit receiving three money orders for the child’s support from Clyde Thomas after the petition for adoption was filed and that these money orders were returned to him.

The petitioner, William Dickie Taylor, testified that he was married to Della on April 16, 1963 and that he had never been married before. He admitted living with another woman named .Velma Osborne who had assumed his name. He said he lived with her for eight years and when asked, “ * * * how many children were born of that marriage ?” he answered, “Four.” He said he started living with Velma in 1949 and ceased to live with her in 1957. It was disclosed that he had one of the four children living with him but that he did not support the other children who were living with their mother, Velma. He admitted that she was receiving Aid to Dependent Children. He admitted that Velma still uses the name of Taylor and to his knowledge she is not married. He admitted that he has not given Velma any money for the support of the children. He disclosed that he was a welder receiving $140 per week gross pay with a take home pay of $125 per week. Petitioner was shown a photostatic copy of an application to the County Clerk of Dallas County, Texas dated July 2, 1949 for a marriage license to William D. Taylor of Terrell, Texas. He was asked if the signature appearing thereon was not his and answered, “It looks like it. Q. Looks like it. Is it your signature ? A. Don’t make my ‘D’ like that. Don’t make my ‘T’ like that.” He finally said it was not his signature, but added, “It’s similar to my signature.” At other places in his testimony he said the signature on the application was “awful close to it.” Continuing to deny that he married Velma Taylor he said, “ * * * you got papers and proof there that look good, but I never married nobody.” When asked if she ever got a divorce to his knowledge, he answered, “No — I don’t know.” He then said “I don’t know. I mean — I left her.” At another place in his testimony he said that as far as he knows he would not have married her. The court questioned him as follows: “ * * * Well, as I understand it, your testimony is that you’ve only been married once in your life.” He answered, “ * * * Only time I’ve been married. I stayed with her common law. I stayed with her common law, and I can bring you three or four more women I stayed common law. For me going and standing in front of a preacher and they say if I do, Della is the only one that I did that. I didn’t do that with Velma, and where they got that from I don’t know.” He admitted that he had been treated for mental disorders when he was in the Navy in 1941 and that he was in the State Hospital for Mental Patients in Texas in September of 1949.

Velma Osborne Taylor testified that ■ she now resides in the City of St. Louis and that she married the petitioner William Dickie Taylor on July 2, 1949, and that she has never been divorced from him nor has he ever been divorced from her. She said four children were born of this marriage, three of them are living with her, and one lives with the petitioner. She said she lived with petitioner until December 7, 1957 at which time they separated. She now receives Aid to Dependent Children. There was introduced in evidence a marriage license between the petitioner and the witness showing that both of them were united in marriage on the 2nd day of July 1949 by T. S. Sanders, A.M.E. Zion Minister. It was stipulated that Velma Taylor the witness, was the person that petitioner said he lived with in Texas and in St. Louis.

In an effort to prove that he had not married Velma on July 2, 1949 petitioner introduced in evidence, in rebuttal, a Police Record of the Metropolitan Police Department which showed that he had been arrested on various charges thirty-three times between the years 1940 and 1962. He admitted he was the person identified on this Police Record and that the record accurately reflected charges against him. Some of these charges were of a very serious nature. None of the arrests for these charges was made on July 2, 1949 and the arrest closest to that date is June 7, 1949.

The Deputy Juvenile Officer in response to questions of the court said that the boy, Clyde Anthony, would like to be a part of the Taylor family and have the same name as the rest of the children, but that he also expressed a great love for his grandparents and for his father. The evidence disclosés that the child Clyde Anthony is known around the house by the name of Taylor but that he is known in school as “Thomas.” The prayer of the petitioh filed by the petitioner, in addition to asking for a decree of adoption of the said children, asked that their names be changed and in the case of Clyde Anthony Thomas asked that his name be changed to Clyde Anthony Taylor.

Under the adoption statutes the petitioner for adoption may allege that he desires to change the name of the person sought to be adopted to the name of the petitioner. Section 453.020 RSMo 1959, V.A.M.S. Under the provisions of Section 453.080 RSMo 1959, V.A.M.S., the court after due hearing, if it finds that it is fit and proper that such adoption should be made, enters its decree of adoption, “ * * * and the court may decree that the name of the person sought to be adopted be changed, according to the prayer of the petition.” The primary action involved in the instant proceeding is that of adoption of the minor children named in the petition and incidental thereto, the court is authorized, as a part of its decree, to change the names of the persons sought to be adopted according to the prayer of the petition. The object of the proceeding is not to change the names of the children involved, but was to effect the adoption of said children and that, upon adoption, the names may be changed. It logically follows that a decree of adoption must accompany or precede any order of the court in an adoption proceeding before the name of the person sought to be adopted may be changed. A casual reading of the Statutes above referred to indicates clearly that it was not the intention of the Legislature to-permit one who is not a parent of a child or its legal guardian to change the name of a child without first obtaining a decree of adoption.

Petitioner contended in the lower court that if the court saw fit to deny the petition for adoption the best interest of Clyde Anthony Thomas would be served by changing his name to Clyde Anthony Taylor to coincide with the family with which he resides. Assuming, without ruling, that the court had such authority, we do not think the best interest of the child would be served by the suggested change of name. The father cannot be arbitrarily deprived of his right to have his child use his name unless it is in the interest of the child that such change be made. The desires of the child, especially if very young, as in this case, are not controlling. 65 C.J.S. Names § 11 (2), p. 30. The natural father in the instant case has shown a desire to preserve the parental relationship that now exists. A perusal of the testimony we have summarized will show that he has not been indifferent to his son’s needs. While there appear to be some lapses in the support of his son, as the Guardian Ad Litem observed in his report to the court, this was apparently the result of the natural father’s periodic hospitalization for his cancer condition. The natural father has indicated he will support the child in the future. Without delay, by a proper pleading in the court, he objected to the adoption of the child and the change of name.

Further, the trial court found that there was insufficient evidence of the legality of the marriage of petitioner to Della to permit it to enter an order of adoption. This finding by the trial court is fully supported by the record. This circumstance, together with petitioner’s obvious disregard of the need to observe the laws of matrimony and his boastful comment about the number of women he lived with without the benefit of a marriage ceremony marks him as a person whose name should not be conferred on anyone and especially on a minor child whose immaturity prevents him from understanding the offensive and grievous nature of petitioner’s antecedents. The final bar to petitioner’s right to have this minor bear his name is his shámeful effrontery in disclosing his Police Record, showing numerous arrests and convictions in a futile effort to rebut and avoid the consequences of the evidence which demonstrated that he had married Velma. Opposed to the bad record- of the petitioner is that of the natural father who has shown a desire to preserve the parental relationship and who has not been indifferent to his son’s material welfare throughout the period of the child’s life.

We conclude that the best interests of the child and his welfare do not call for a change of name at this time from that of his natural father to the surname of the petitioner. As we have pointed out the boy is too young to be capable of making the choice of name for himself. Also, the boy is using the name of his natural father in school and it is therefore unlikely that he will be embarrassed by the fact that his name is different from that of his mother and the man she is living with. If later in life when the child becomes of mature age and has the ability to fully understand the significance of his paternal surname and the antecedents of the man with whom his mother is living, he chooses to adopt the name of Taylor other than that of his father it will be his privilege to do so. In the meantime we think it would not be to the best interests of the child to confer and thrust upon him a name which he may later reject.

In its findings and judgment the trial court allowed the Guardian Ad Litem the sum of $200 for services rendered and assessed this cost against the petitioner and respondent in the trial below. It is sufficient to point out that petitioner, Taylor, who filed the adoption proceeding was unsuccessful and therefore all costs including the fee of the Guardian Ad Litem should be assessed against the petitioner. Civil Rule 77.06 V.A.M.R.

We reverse that portion of the findings and judgment of the lower court which purports to change the name of Clyde Anthony Thomas to Clyde Anthony Taylor and we remand the case with directions to amend the findings and judgment in accordance with the views expressed herein. We further direct that the findings and judgment be amended to assess all costs, including the fee of the Guardian Ad Litem, against the petitioner below.

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


author: O’QUINN, Justice.

text:
    Lucy MARMON et al., Appellants, v. MUSTANG AVIATION, INC., Appellee.
    No. 11487.
    Court of Civil Appeals of Texas. Austin.
    May 24, 1967.
    Appellants’ Motion for Rehearing and Appellants’ Amended Motion for Rehearing Denied June 14, 1967.
    White, McElroy & White, Adair Dyer, Jr., Dallas, for appellants..
    Harris, Anderson, Henley, Shields & ■ Rhodes, L. W. Anderson, Dallas, for ap-pellee.
   O’QUINN, Justice.

Suit was brought in Dallas County for wrongful death of passengers in a chartered aircraft that crashed into the side of a mesa in Colorado on November 3,1964. The pilot and all the passengers were killed. Everyone aboard the plane was a resident of Texas, except one passenger who resided in Illinois.

At the time of the accident, the plane was returning to Texas, after take-off at Billings, Montana, on the last leg of an extensive journey. The passengers had left Texas about ten days previously on a business trip to western United States, with stops in New Mexico, Nevada, Oregon, and Montana.

Each of the two defendant corporations was domiciled in Texas. Three of the four passengers killed were executives of Dr. Pepper Company, a corporation having its principal place of business and its national headquarters in Texas. The trip west had been made in behalf of Dr. Pepper Company under a contract made by this company in Texas with Mustang Aviation, Inc., ap-pellee, whose principal place of business was Love Field, Dallas, Texas. The pilot had been hired in Texas, and the aircraft was garaged, maintained, licensed, and contracted for in Texas.

The only connection between the aircraft, its pilot and passengers, with the State of Colorado was the crash itself near Kim and a landing at Denver earlier that day for refueling and to obtain weather information, which took about an hour.

The question to be decided is whether the law of Colorado, the place of the accident, or the law of Texas, the place of trial, shall be followed and applied.

The Texas wrongful death statute places no limit on compensable damages. The Colorado statute imposes a limit of $25,000 for each death. This limitation is the principal difference between the two statutes. Under the judgment of the district court, this difference, depending upon final determination of the case in the appellate courts, could amount to' $100,000.

The cause was submitted to the trial court under an agreed statement of facts, pursuant to Rule 263, Vernon’s Arin.Rules Civ.Proc., and the court’s judgment makes allowance for the several results that might flow from a final decision in the appellate courts.

The district court applied the law of Colorado, awarding damages in the sum of $24,-000 to each group of survivors of the four passengers. The sum of $96,000 was paid into the registry of the court to be distributed equally to each of the four groups of survivors. The judgment provided for an additional sum of $100,000 to be paid by ap-pellee if on appeal it is found the trial court should have applied the Texas law imposing no limit on damages, instead of the Colorado law limiting compensable damages.

Appellants, survivors of the four passengers, contend that the law of Texas should have been followed by the trial court. Appellants seek to show that because Texas is the state having the most significant total relationship with the flight and the sole significant interest in the measure of recovery allowed to those survivors who are residents of Texas, the arbitrary limitation on damages recoverable under the Colorado wrongful death statute should not be applied by the Texas courts to limit appellants’ recovery.

Appellee contends that Article 4678, Vernon’s Ann.Tex.Civ.Stats., controls this case in its entirety. This statute, with emphasis added to the same clauses accented by appellee, reads as follows:

“Whenever the death or personal injury of a citizen of this State or of the United States, or of any foreign country having equal treaty rights with the United States on behalf of its citizens, has been or may be caused by the wrongful act, neglect or default of another in any foreign State or country for which a right to maintain an action and recover damages thereof is given by the statute or law of such foreign State or country, such right of action may be enforced in the courts of this State within the time prescribed for the commencement of such actions by the statutes of this State. The law of the forum shall control in the prosecution and maintenance of such action in the courts of this State in all matters pertaining to the procedure.”

Appellee argues that Article 4678 specifically holds that the damages recoverable are the damages designated by the foreign state that created the cause of action. Appellee asserts that the Texas courts have consistently held that the question of damages, as well as the creation of the cause of action, is controlled by the law of the foreign state in which damages arose.

Article 4678 had its origin in a statute passed by the Texas Legislature in 1913, amended in 1917, and included as amended, with no substantive change, in the Revised Civil Statutes of 1925. Acts 1913, 33rd Leg., ch. 161, p. 338; Acts 1917, 35th Leg., ch. 156, p. 365.

In 1922 in a wrongful death case the Texas Commission of Appeals, in an opinion adopted by the Supreme Court, construed the statute and held that, while the statute required Texas courts to follow the law of this state in all matters pertaining to procedure, the law of the place where the negligent killing occurred must be applied as to substantive matters. Jones v. Louisiana Western Ry. Co. (Tex.Com.App., 1922), 243 S.W. 976.

On this point the Court stated:

“It is the cause of action given by the law of the state in which the negligent killing occurred that our courts are authorized to enforce. The law of the place where the cause of action arose, the lex loci delictus, must determine the nature of the cause of action, and the defenses, if any, available. The case asserted must stand or fall upon that law.” 243 S.W. 976, 978, col. 2.

Jones v. Louisiana Western Ry. Co., supra, was decided in October, 1922. Shortly thereafter, in February, 1923, the Texar-kana Court of Civil Appeals, in a case in which the Supreme Court refused a writ, decided that Texas courts may award damages for mental and physical suffering in a wrongful death suit, brought in Texas for negligent killing in another state, if such recovery would be allowed in the foreign state, even though not recoverable in Texas on the same tort if committed in this state. Davis v. Gant, Tex.Civ.App., Texarkana, 247 S.W. 576 (writ ref.). Precisely, the court held that, “While our statute does not authorize a recovery of such damages when the injury occurs in this state, article 7730)4, as contained in Complete Texas Statutes of 1920 [Article 4678, R.S. 1925], permits such a recovery when authorized by the laws of another state where the injury occurs.” 247 S.W. 576, 580, col. 2.

In October, 1923, about a year following the decision in Jones v. Louisiana Western Ry. Co., the Commission of Appeals again construed the statute and dismissed the lawsuit for want of jurisdiction, holding that the laws of Mexico were so materially dissimilar to Texas laws as to be incapable of enforcement or application by Texas courts for personal injuries occurring in Mexico. El Paso and Juarez Traction Co. v. Carruth (Tex.Com.App., 1923), 255 S.W. 159.

In reaching this decision the Commission followed an earlier holding of the Supreme Court in Mexican National Railroad Co. v. Jackson, 89 Tex. 107, 33 S.W. 857, 31 L.R.A. 276 (1896), as to want of jurisdiction where great dissimilarity in' laws prevented application of foreign laws by Texas courts.

More recently, the holding in El Paso and Juarez Traction Co. v. Carruth, supra, has been followed in a suit in Texas for injury in an aircraft take-off after forced landing in Mexico. Carter v. Tillery, Tex.Civ.App., Amarillo, 257 S.W.2d 465 (writ ref. n. r. e.). In that case the court construed Article 4678 to hold that the law of the place where injury occurred will control. The case was dismissed because the Texas tribunal did not have power or authority to apply and enforce the law of Mexico as to damages, awarded in Mexico on a periodic basis instead of lump sum as provided under Texas law.

In contending that the Colorado statute limiting the amount of recovery should not control, and that the Texas law containing no such limitation should prevail, appellants advocate a doctrine of recent origin. That doctrine holds that the most significant relationship with the occurrence, and with the parties, should determine the rights and liabilities of the parties. This is clearly contrary to the general rule followed in Texas that the courts look to the law of the place where the wrongful act or neglect took place.

The evolution of the new doctrine is best illustrated by the change in the Restatement, Conflict of Laws. The original Restatement directed looking to the law of the place of the wrong, which was characterized as the “state where the last event necessary to make an action liable for an alleged tort took place.” (Sec. 377). In a tentative draft, invoked by appellants and cited by authorities embracing the doctrine, the Restatement, Second, Conflicts of Law, looks to the “local law of the state which has the most significant relationship with the occurrence and with the parties.” Tentative Draft No. 9, sec. 379. See: Seguros Tepeyac, S.A., Compania Mexicana, etc. v. Bostrom (U.S.C.C.A., Fifth Cir., 1965), 347 F.2d 168, 175, col. 2, and footnote 4a quoting Restatement, pp. 175-176.

In applying the doctrine, a court will consider various important contacts in deciding which state, that of the forum or that of the foreign state, had the more significant relationship with the event, out of which the injury came, and with the parties themselves. These important contacts will include the place where the injury and the conduct occurred, the domicile, place of incorporation and place of business of the parties, and the place where the relationship between the parties is centered. Finally, in determining the relative importance of the contacts, a court will consider the issues of the case, the character of the tort, and the relevant purposes of the tort rules of the interested states. (Sec. 379, par. 3).

It is obvious that by this yardstick appellants would be able to show abundant significant relationship of the parties with Texas. The only important contact with Colorado was a stop for fuel and information, followed by striking the mesa, while flying over the state en route to Texas. Enumeration of the important contacts establishing the significant relationship of the parties with Texas would add nothing to what the facts already stated clearly demonstrate.

The doctrine of most significant contacts emerged from a congress of critical studies by eminent authorities writing on conflicts of laws. George W. Stumberg, professor of law for many years at the University of Texas, and a recognized authority on conflicts of laws, concluded, after criticism of the place of tort rule, “* * * that the social function of the law * * * might be better served by recognition of the importance of the purposes behind competing rules of substantive law, even though as a result there may be a sacrifice of a rule which seems easy to apply and which, therefore, may make for facility of prediction.” Stumberg: Principles of Conflicts of Laws (3rd Ed. 1963).

Among the comments on both sides of the question are these notes and comments in law reviews: Note, 77 Har.L.Rev. 355 (1963); Comments on Babcock v. Jackson, a Recent Development in Conflict of Laws, 63 Colum.L.Rev. 1212 (1963); Note, Wilcox v. Wilcox: The Beginning of a New Approach to Conflict of Laws in Tort Cases, 1966 Wisc.L.Rev. 913; Note, The Impact of Babcock v. Jackson on Conflict of Laws, 52 Va.L.Rev. 302 (1966).

Seven states have adopted the most significant contacts rule for choice of law in tort cases. The rule has been followed by federal courts in four circuits and by United States district courts in at least two states. Now considered a landmark case in departure from the place of tort rule is the case of Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526, decided in 1961. In that case the New York Court of Appeals, considering a suit for wrongful death of a New York citizen killed in Massachusetts on a weekend flight from New York, refused to apply the Massachusetts limit of $15,000 for damages. The New York court held that recovery could be had under the Massachusetts wrongful death statute, but refused to apply the limitation on damages as against New York public policy.

The decision of the New York court in Kilberg v. Northeast Airlines, Inc., was tested for constitutionality in 1962 in Pearson v. Northeast Airlines, Inc. (U.S.C.C.A. 2 Cir.), 309 F.2d 553, 92 A.L.R.2d 1162, cert. denied, 372 U.S. 912, 83 S.Ct. 726, 9 L.Ed.2d 720 (1963), in which the circuit court affirmed judgment of the trial court following the rule of the Kilberg case.

Other decisions have followed each year in which the rule of most significant contacts has been applied in departure from the older rule that the place of the tort controls. In 1963 the New York court had before it a suit for injury in an automobile accident in Ontario, Canada, involving a driver and his guest, both residents of New York, on a trip to Canada and return to New York. In defense, the Ontario guest statute was pleaded. New York did not have a guest statute, but the court refused to apply the Ontario guest statute on a determination that New York had a substantial relationship and a substantial interest in application of New York policy, while Ontario had a minimal interest. Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1.

Following the decisions by the New York courts in the Kilberg case and the Babcock case, the Supreme Court of Pennsylvania refused to apply the Colorado limitation on compensatory damages in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). In that case deceased, a resident of Pennsylvania, bought a ticket in Pennsylvania for a flight to Arizona and return. He was killed in Colorado in a scheduled landing. The court found these and other facts showed more significant contacts with Pennsylvania and applied the law of the forum. Since that time the courts in Minnesota, Wisconsin, Iowa, Florida, and New Hampshire have applied the most significant contacts approach for choice of law in tort cases.

Application of the new doctrine with practical and just results is outstandingly demonstrated in the decision of the United States Court of Appeals, District of Columbia Circuit, in Tramontana v. S. A. Empresa de Viacao Aerea Rio Grandense, 121 U.S. App.D.C. 338, 350 F.2d 468 (1965). More recently, the United States Court of Appeals, Second Circuit, followed the rule of most significant contacts in a case arising out of the same flight from New York to Massachusetts involved in Kilberg v. Northeast Airlines, Inc., supra, and Pearson v. Northeast Airlines, Inc., supra. Gore v. Northeast Airlines, Inc., 373 F.2d 717 (1967).

To hold with the doctrine appellants would have this Court adopt, we would be required to depart from a rule settled in this state by a long line of decisions. At the head of this line, at least in its influence on the courts since 1904, is Slater v. Mexican National Railway Company, 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900. This suit was brought in Texas for a wrongful death occurring in Mexico. The Supreme Court of the United States, in an opinion by Justice Holmes, stated the rule that “ * * * as the only source of this obligation is the law of the place of the act, it follows that that law determines not merely the existence of the obligation * * * but equally determines its extent.”

In a strong dissent in the Slater case, Chief Justice Fuller, joined by two other justices, portended the doctrine of most significant contacts and also suggested the reasoning, employed in the Kilberg case, that the “method of arriving at and distributing the damages pertains to procedure” to be regulated by the law of the forum. (This theory in the Kilberg case was disapproved in Davenport v. Webb, 11 N.Y.2d 392, 230 N.Y.S.2d 17, 183 N.E.2d 902, in 1962, in favor of public policy as a basis for the decision).

Without discussing in detail the facts and holdings, we summarize results in other cases we regard as significant in the body of case law in this state supporting the rule that the lex loci delictus will be applied in tort actions.

The nature and extent of the damages for a wrongful death occurring in Louisiana, as well as the right to recover damages, was held to be controlled by the law of Louisiana in Texas and New Orleans Railroad Co. v. Miller, Tex.Civ.App., San Antonio, 60 Tex.Civ.App. 627, 128 S.W. 1165 (writ ref.).

In an action in Texas for death occurring in Arkansas, the Texas court looked to Arkansas statutes in holding that the right to recover damages had its source in Arkansas law. The Texas court held that it must look to the Arkansas statute to determine what the obligation was, to whom it would run, and the persons by whom or for whose benefit recovery could be had. Nealy v. Magnolia Petroleum Co., Tex.Civ.App., El Paso, 121 S.W.2d 425 (writ ref.).

In addition to these cases, the following are a part of the body of case law definitely placing this state with the majority adhering to the rule that the law of the place of the wrong controls all but procedural matters. Withers v. Stimmel, Tex.Civ.App., Dallas, 363 S.W.2d 144 (writ ref. n. r. e.); Gammage v. Weinberg, Tex.Civ.App., Houston, 355 S.W.2d 788, 95 A.L.R.2d 1086 (writ ref. n. r. e.); Grandstaff v. Mercer, Tex.Civ.App., Fort Worth, 214 S.W.2d 133 (writ ref. n. r. e.).

On the strict question of measure, extent, and amount of damages recoverable in a wrongful death action, the general rule ris that determination is by the law of the place where the wrong causing the death occurred, founded on the view that measure, extent, and amount of damages pertain to the substance of the right of recovery, governed by the law of the place where the action arose. 92 A.L.R.2d 1180, 1185-1191, citing Texas and New Orleans Railroad Co. v. Miller, supra, Davis v. Gant, supra, and Texas and New Orleans Railroad Co. v. Gross, Tex.Civ.App., San Antonio, 60 Tex.Civ.App. 621, 128 S.W. 1173 (writ ref.).

In examining the law and the record of this case we have been ably aided by exhaustive and illuminating briefs of counsel on both sides of the question, as well as by painstaking and persuasive works of competent amici curiae. The research of counsel and their skillful presentations have been most helpful to the Court, and have contributed a large measure of pleasure to the task of working out our conclusions.

We have been urged to adopt the new doctrine of most significant contacts. We find much merit in the doctrine, and, if free to act in a cause of first impression, we would be inclined to explore the doctrine more fully with a view to consideration - of adoption. But we are bound by Article 4678 and the construction placed on the statute by the Supreme Court and by decisions of other courts of Texas. The possibility has been suggested that we consider the limitation on damages a matter of procedure, and not a matter of substance of the right of recovery. This we cannot do because we regard this as an unsound approach to the problem and contrary to the holdings in Texas and New Orleans Railroad Co. v. Gross, Texas and New Orleans Railroad Co. v. Miller, and Davis v. Gant. We do not agree with the reasoning of the New York court that did take this route in the Kilberg case.

Lastly, we are urged to adopt the doctrine on the theory that the Colorado statute with its limitation on damages is contrary to public policy of this state. We think the Supreme Court of Texas precluded this route in Flaiz v. Moore, 359 S.W.2d 872 (Tex.1962).

This Court as an intermediate appellate state court is without the freedom found by the United States Circuit Court in Tra-montana v. S. A. Empresa de Viacao Aerea Rio Grandense, supra. There the court said:

“The Supreme Court, in its decision in Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962), and many earlier cases, has recognized the inadequacies of the theoretical underpinnings of Slater and its progeny. The latter cases have a highly attenuated precedential weight, both in authority and reason. Thus we are free to explore the question presented by this appeal in the light of the newer concepts of conflict of laws.” (Emphasis added.) 350 F.2d 468, 471, cols. 1-2.

Courts of Civil Appeals of Texas have the duty to follow decisions of the Supreme Court of this state. Ball v. Gulf States Utilities Co., Tex.Civ.App., Beaumont, 123 S.W.2d 937 (writ dism’d); Grand Prize Distributing Company of San Antonio v. Gulf Brewing Co., Tex.Civ.App., San Antonio, 267 S.W.2d 906 (writ ref.); Clayton v. Clayton, Tex.Civ.App., Texarkana, 308 S.W.2d 557 (no writ); McClelland v. Briscoe, Tex.Civ.App., Houston, 359 S.W.2d 635 (writ ref. n. r. e.); Campbell v. Campbell, Tex.Civ.App., Austin, 362 S.W.2d 904, 3 A.L.R.2d 1206 (writ dism’d).

Applying to this case the language of Justice Norvell and the holding in Grand Prize Distributing Co. of San Antonio v. Gulf Brewing Co., supra, we conclude that, “while some change in approach to the problem or difference in philosophy may be indicated by the cases cited,” we consider the decisions of the Supreme Court of Texas contrary to the doctrine advocated by appellants, “and since these cases are squarely in point, it becomes our plain duty to follow them.” 267 S.W.2d 906, 908, col. 1.

The Supreme Court of Texas has power to overrule or modify its former decisions, although this Court does not presume to suggest or urge that the Supreme Court exercise that prerogative in this cause. Connecticut General Life Ins. Co. v. Bryson, 148 Tex. 86, 219 S.W.2d 799; Federal Royalty Co. v. State, 128 Tex. 324, 98 S.W.2d 993.

We believe the district court correctly decided the case, and that the judgment of the trial court should be in all things affirmed.

The judgment of the district court is affirmed.

Affirmed.