author: DALTON, Judge.

text:
    Ken CASPER and Harold Meir, as class representatives for and on behalf of the residents of Warson View Subdivision, consisting of approximately seventy families in the City of Olivette, Missouri, Plaintiffs-Respondents, v. Richard HETLAGE, Maurice Abramson, John Molloy, Thomas Dunne, John Dowling, George E. Bohrer, and Russell Grantham, constituting the St. Louis County Council, St. Louis County, Missouri; Herbert G. Poertner, Director of Public Works, St. Louis County, Missouri; Industrial Properties, Inc., a corporation; and the City of Olivette, a municipal corporation, Defendants-Appellants.
    No. 49001.
    Supreme Court of Missouri, Division No. 1.
    July 16, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied Sept. 10, 1962.

      William E. Gallagher, St. Louis County Counselor, Richard E. Crowe, Asst. County Counselor, for appellants, Richard Hetlage, Maurice Abramson, John Molloy, Thomas Dunne, John Dowling, George E. Bohrer, and Russell Grantham, Constituting the St. Louis County Council, St. Louis County, Missouri; Herbert G. Poertner, Director of Public Works, St. Louis, County, Missouri.

      Boedeker, Weil & McMahon and Edgar E. Boedeker, Clayton, for appellant, Industrial Properties, Inc.
    Carroll J. Donohue, Shulamith Simon, Husch, Eppenberger, Donohue, Elson & Jones, St. Louis, for defendant-respondent, City of Olivette.
   DALTON, Judge.

This action involves the validity of an amendment to a Zoning Ordinance of St. Louis County. Plaintiffs seek a declaratory judgment that St. Louis County Ordinance No. 1536 is null and void and they further ask for an injunction to prevent the real estate described in the Ordinance from being used for other than the residential purposes for which it was originally zoned. The trial court declared the Ordinance void, but denied injunctive relief against the issuance of building permits on the ground that the issue was moot.

The action was instituted September 1, 1959, in the Circuit Court of St. Louis County by Ken Casper and Harold Meir, as class representatives for and on behalf of the residents of Warson View Subdivision, consisting of approximately seventy families in the City of Olivette, Missouri, as plaintiffs, against Richard Hetlage, Maurice Abramson, John Molloy, Thomas Dunne, John Dowling, George E. Bohrer, and Russell Grantham, constituting the St. Louis County Council, St. Louis County, Missouri; Herbert G. Poertner, Director of Public Works, St. Louis County, Missouri, and Industrial Properties, Inc., a corporation, defendants. The City of Olivette, a municipal corporation, was also joined as a defendant, although this defendant sought to support plaintiffs’ position in the trial of the cause and has filed the only brief in this court supporting respondents’ position on appeal.

Ordinance No. 1536 purported to re-zone some forty acres of real estate in St. Louis County lying outside of any of the various incorporated municipalities of the county. It re-zoned the particular area from “C” District (restricted to 20,000 square feet, single family dwellings) to “J” District (for light industrial use). The trial court held Ordinance No. 1536 invalid on the ground that Section 64.140 RSMo 1949, V.A.M.S. had not been complied with. Appellants’ position on this appeal is that under the Constitution of Missouri, 1945, Art. VI, Sec. 18, V.A.M.S., and under the various provisions of the St. Louis County Charter adopted pursuant to the said constitutional provision, Ordinance No. 1536 was validly adopted by the St. Louis County Council; and that compliance with the requirements of Section 64.140 RSMo 1959, V.A.M.S. was unnecessary, and its specific provisions inapplicable.

Plaintiffs’ petition for a declaratory judgment, as filed in the Circuit Court of St. Louis County, presented other issues in addition to the one mentioned, including an allegation that the “purported ordinance number 1536 (1959) constitutes illegal spot-zoning * * * and constitutes a subversion of the character of the neighborhood and will materially and substantially reduce property values and there is no relation to the promotion of the public welfare.” These issues were not ruled by the trial court in the judgment entered, but no objection was raised by the plaintiffs in the trial court to the trial court’s failure to deal with such issues; nor are any such issues briefed or presented by respondents on this appeal. Accordingly, we shall assume that these issues have been totally abandoned.

In the only brief filed by a respondent in this court it is admitted that the only issue before this court is the correctness of the trial court’s ruling that Ordinance 1536 is invalid because it “failed to comply with the requirements of Section 64.140 R.S.Mo.” In such situation the parties might well have stipulated in a few pages the facts necessary for a decision by this court on the mentioned issue. Instead, the appellants have presented a 328-page transcript, most of which consists of the testimony of witnesses on the issue of whether or not Ordinance No. 1536 was reasonable or unreasonable and whether the ordinance, in fact, constituted spot-zoning. Neither appellants, nor the appearing respondent have in any manner reviewed on appeal this particular part of the evidence in the transcript. If such evidence had been excluded from the transcript this court could have avoided the necessity of carefully reviewing evidence which is wholly immaterial to the issue presented.

Appellants invoke the jurisdiction of this court on the theory that the construction of the Constitution of Missouri 1945 is directly involved because the trial court held Ordinance No. 1536 void on the sole ground that it was not adopted in full compliance with the provisions of Sec. 64.140, supra. Appellants’ contention that Ordinance No. 1536 is valid is based upon the proposition that a particular provision of the Zoning Ordinances of St. Louis County, to wit, Sec. 1003.340 of the St. Louis County Revised Ordinances (Ordinance 542), adopted pursuant to the “Home Rule Charter” of St. Louis County after the charter was adopted by the voters of St. Louis County pursuant to Art. VI, Sec. 18 of the Constitution of Missouri, supersedes the provisions of Sec. 64.140 insofar as the two are in conflict; and that compliance with the requirements of the State’s statutes, as to the unanimous vote of county judges, “is not mandatory upon St. Louis County as a ‘Home Rule’ Charter County under the provisions of the Constitution of Missouri.” Since the construction of a provision of the state constitution is required, this court has jurisdiction of this appeal.

In determining the issue presented, a portion of Sec. 18, Art. VI of the Constitution of Missouri 1945 must be set out.

“§ 18(a). County government by special charter — limitation. Any county having more than 85,000 inhabitants, according to the census of the United States, may frame and adopt and amend a charter for its own government as provided in this article, and upon such adoption shall be a body corporate and politic.

“§ 18(b). Provisions required in county charters. The charter shall provide for its amendment, for the form of the county government, the number, kinds, manner of selection, terms of office and salaries of the county officers, and for the exercise of all powers and duties of counties and county officers prescribed by the constitution and laws of the state.

“§ 18(c). Provisions authorized in county charters — participation by county in government of other local units. The charter may provide for the vesting and exercise of legislative power pertaining to public health, police and traffic, building construction, and planning and zoning, in the part of the county outside incorporated cities; and it may provide, or authorize its governing body to provide, the terms upon which the county shall perform any of the services and functions of any municipality, or political subdivision in the county, except school districts, when accepted by vote of a majority of the qualified electors voting thereon in the municipality or subdivision, which acceptance may be revoked by like vote.” (Italics ours.)

Reference may be had to the various other subdivisions of Sec. 18, supra, but we find it unnecessary to set them out herein at this time.

Of course, as stated in State on Inf. of Dalton ex rel. Shepley v. Gamble, 365 Mo. 215, 280 S.W.2d 656, 659, “St. Louis County, regardless of its charter, remains a legal subdivision of the state. Art. VI, §§ 1 and 18(a). As such, it is charged with the performance, of the state functions just as other counties are. Section 18(b), supra, expressly requires that the charter must provide ‘for the exercise of all powers and duties of comities and county officers prescribed by the constitution and laws of the state.’ ”

On June 13, 1946 a zoning order for St. Louis County was adopted by the County Court of St. Louis County. On March 28, 1950 St. Louis County, by a vote of its people, adopted a charter for its own government, pursuant to § 18, Art. VI, of the 1945 Constitution of Missouri. The 1946 zoning order was continued in effect by Sec. 84, Art. IX of the “Home Rule Charter”, which became effective January 1, 1951.

Art. Ill, § 6 of the charter provided: “The governing body of the County shall be the County Council which, except as otherwise provided in this charter, shall have and exercise all the power and duties vested in counties and in county governing bodies by the Constitution and laws of the State of Missouri and by this charter. All legislative power of the County shall be vested in the Council(Italics ours.)

Section 22 of Art. Ill of the charter provided : “Pursuant to and in conformity with the Constitution of Missouri and without limiting the generality of the powers vested in the Council by this Charter, the Council shall have, by ordinance, the power: * * * (20) To exercise legislative power pertaining to public health, police and traffic, building construction, and planning and zoning in the part of the County outside incorporated cities, and on such other subjects as may hereafter be authorized by the Constitution or by law, provided that, until superseded by ordinances of the Council, the laws pertaining to said matters shall continue to be valid and effective; * * (Italics ours.)

If St. Louis County has the right to do what it has undertaken to do with reference to the re-zoning here under consideration, its authority must be derived from § 18, Art. VI, of the 1945 Constitution and Section 22, Art. Ill of the Charter of St. Louis County. This being so, we must first determine the intent and purpose of the constitutional provision as applied to the issue presented.

The section (18, Art. VI, supra) first appeared in the 1945 Constitution and was wholly new. After the approval of the “Home Rule Charter,” the county’s prior zoning order remained in effect, as stated. Thereafter, the County Council adopted Ordinance No. 429 as follows: “The powers and duties of the St. Louis County Planning Commission shall include all of the powers and duties provided by State Law and such others as may be provided by the St. Louis County Charter and by Ordinance of the St. Louis County Council. All orders, regulations, ordinances, amendments thereof, appeals and procedure in matters pertaining to Zoning, the Master Plan and parts thereof, Subdivision Regulations, Building and Setback Lines Along Major Highways in the Unincorporated Area of St. Louis County, and the Comprehensive Major Airport Plan, and all matters pertaining to said subjects and the scope and effect thereof shall be in conformity with and shall be adopted and enacted pursuant to the provisions of Chapter 64, RSMo 1949, except that such modification or variation in the provisions of the statute as may be authorized or required by reason of the adoption of the St. Louis County Charter may be governed by ordinance.” (Italics ours.) (Section 1001.010 St. Louis County Revised Ordinances.)

By Ordinance No. 542, Art. II, adopted in 1954, it was provided that: “The Zoning Order of the County Court of St. Louis County adopted June 13, 1946, and all amendments thereof whether by Order or Ordinance, the District Maps and all official maps now of hereafter in force and effect and all ordinances hereinafter enacted amending the foregoing, shall collectively be known as ‘The Zoning Ordinance.’ ” (Section 1003.-020, St. Louis County Revised Ordinances.) This ordinance (hy Art. XXV, now Section 1003.340) further provided the method of making zoning changes and amendments. It provided: “1. Procedure for Change in Zoning: Whenever the public necessity, convenience, general welfare and good zoning practice require, the County Council may order, after a public hearing, report thereon by the Commission and subject to the procedure provided in this section, amend, supplement, or change the regulations, zoning district boundaries or classification of property now or hereafter established by this Section. Amendment, supplement, re-classification or change, (including special permits) may be initiated by a resolution of intention by the Commission or the County Council, or by a verified application of one or more of the owners or authorized representative of the owners of property within the area proposed to be changed. * * * 4. It shall not be necessary to publish notice or hold public hearings on amendments to this Chapter pertaining to procedural matters and to the duties and powers of officials, officers, boards, commissions and bureaus in carrying out the regulations of this Chapter. 5. In case of written protest against any proposed change in zoning signed and acknowledged by the owners of twenty percent of the frontage within one thousand feet to the right or left of the frontage proposed to be changed, * * * or in cases where the land affected lies within one and one-half miles of the limits of a municipality, by the City Council or Zoning Board of any such municipality, filed with the County Clerk, such change in Zoning may not he passed except hy the affirmative vote of four members of the County Cowip-cil.” (Italics ours.) The total membership of the County Council consisted of seven members. (Sec. 7, Art. Ill, “Home Rule Charter” of St. Louis County.)

On June 28, 1958, Andrew H. Baur, as the agent for the owners of an eighty-acre tract of land in said county, a part of which tract is in question here, filed a petition requesting the re-zoning of said eighty-acre tract from the “C”, 20,000 square feet, single family district to the “J” light industrial district. After publication and notice a public hearing was held before the Planning Commission of St. Louis County on July 15, 1958, at which time the City of Olivette . filed a formal protest in writing against the contemplated re-zoning. (It is conceded that the forty-acre tract subsequently rezoned lies within one and one-half miles of the City of Olivette.) Thereafter, there was no other public hearing held before the Planning Commission and the Planning Commission voted six to none to recommend the re-zoning of the particular forty acres in question here from residential to light industrial use, as hereinbefore stated.

On October 24, 1958, the recommendation of the County Planning Commission reached the St. Louis County Council. On the 6th of May, 1959, Bill No. 98 embodying the proposed amendment to effect the rezoning of the forty-acre tract in question from one classification to another was introduced in the St. Louis County Council. The City of Olivette thereupon filed a further formal protest to the proposed rezoning. A protest was also filed in the form of an exhibit alleged to have been signed by 1300 residents of the City of Olivette. On May 13, 1959, the bill was perfected and, on June 17, 1959, a hearing was held before the St. Louis County Council.

Thereafter, on July 1, 1959, Bill No. 98 was passed and adopted by a vote of five members of the St. Louis County Council, with one member abstaining and one member absent. Upon adoption of Bill No. 98 it became Ordinance No. 1536, the ordinance in question. The County Supervisor did not sign the ordinance within the time prescribed by the St. Louis County Charter but, in accordance with the provisions of said Charter, the Council cited said fact by resolution with all seven members voting “yea”, and the ordinance was thereby finally enacted on July 29, 1959. (Article III, Sections 13, 16 and 18, Charter for St. Louis County.)

As stated, the issue presented here is not whether the ordinance was adopted in accordance with the provisions of the “Home Rule Charter” for St. Louis County, but is solely whether the ordinance is invalid by reason of the fact that it was not adopted in conformity with the provision of Section 64.140 of Chapter 64 RSMo 1949, V.A.M.S., dealing with “Planning and Zoning — Class One Counties,” which section provided: “The regulations imposed and the districts created under authority of sections 64.010 to 64.160 may be amended from time to time by the county court by order after the order establishing the same has gone into effect, but no such amendment shall he made without a hearing before the county planning commission; or if there he no county planning commission, such hearing shall he held by the county zoning commission. * * * In case of written protest against any proposed amendment, signed and acknowledged by the owners of twenty per cent of the frontage within one thousand feet to the right or left of the frontage proposed to be changed, * * * or in cases where the land affected lies within one and one-half miles of the limits of a municipality, by the city council or zoning board of any such municipality, filed with the county clerk, such amendment may not be passed except by the favorable vote of all members of the county court."

As stated, the trial court held Ordinance 1536 null and void for failure to comply with the provisions of Section 64.140 RSMo 1959, V.A.M.S. in that the vote taken by the St. Louis County Council was not initially unanimous, since only five members then voted in favor of the adoption of Ordinance 1536. The trial court also took the position that the ordinance itself, in effect, incorporated the provisions of Section 64.140 RSMo 1949, V.A.M.S.

Respondent city’s only contention presented under Points and Authorities is that “Ordinance 1536 is invalid for the reason that it was not enacted in conformity with the requirements of Section 64.140 R.S.Mo.1959”; and that “in adopting Ordinance No. 1536 the County Council of St. Louis County established as its standard the provisions of Sections 64.010 to 64.160” and, therefore, a unanimous vote of the County Council was required. (Italics ours.) This latter contention is based on the fact that the mentioned Ordinance No. 1536 recites in Section 2 thereof that: “The St. Louis County Council * * * does hereby adopt this Ordinance pursuant to Subsection (20) of Section 22, Article III of the St. Louis County Charter authorizing the Council to exercise legislative power pertaining to planning and zoning, and pursuant to Section 64.010 to 64.160 R.S.Mo., 1949.” (Italics ours.) In considering this recital in Ordinance No. 1536, we must keep in mind that Section 64.140 RSMo 1949, V.A.M.S., when referring to the County Court and requiring a unanimous vote where a protest was lodged, referred to a three-man administrative body. Section 7, Art. VI of the Constitution of Missouri 1945 specifically exempts charter counties from the constitutional provision that counties generally shall have a county court, “which shall manage all county business as prescribed by law.” A county authorized by Section 18, Art. VI to frame and adopt a special charter for its own government may vest the management of county business in some other county agency as may be provided by such county charter or an ordinance. See also State ex rel. Kowats v. Arnold, 356 Mo. 661, 204 S.W.2d 254, 256 (Per Curiam); and Bradford v. Phelps County, 357 Mo. 830, 210 S.W.2d 996, 999[2], The St. Louis County Council, which is provided for and was established by Sections 6-23 of Art. Ill of the “Home Rule” Charter of St. Louis County, is a seven-member body whose powers and duties are fixed by the charter and ordinances. No provision was made in the St. Louis County Charter for a County Court, nor for a similar three-member body and the administrative duties usually performed by County Courts were assigned to other administrative officials. The St. Louis County Council under the present “Home Rule” Charter is not a County Court, but with respect to zoning and re-zoning it is a legislative body. Section 18(c), Art. 'VI, Constitution of Missouri 1945; St. Louis County Charter, Section 22(20), Art. III. See also: Section 1.050 RSMo 1959, V.A. M.S., which provides that words in statutes importing joint authority of three or more persons to act shall be construed as authority for a majority of the persons to act unless otherwise declared in the law giving such authority. Since the ordinance here (Sec. 1003.340) requires four votes that would apply in any event under the authority of Schmoll v. Housing Authority of St. Louis County, Mo.Sup., 321 S.W.2d 494, 498[2-4], And see: Sections 16 and 18 of Art. III of the Charter of St. Louis County.

The briefs filed present no disputed issues of fact. There is no contention that the “Home Rule” Charter, as adopted by St. Louis County, makes any provision for a “County Court” similar to the “County Court” referred to in Section 64.140 RS Mo 1949, V.A.M.S., nor is there any contention that under the provision 'of the Charter of St. Louis County the County Council performs the functions of a “County Court.” See Art. Ill of the Charter for St. Louis County and particularly Sections 6, 13, 16 and 22(20) thereof. And see: Schmoll v. Housing Authority of St. Louis County, supra, 321 S.W.2d 494; 498[2-4]. Instead, it is the contention of respondent City of Olivette that “The Zoning Ordinance of St. Louis County”, as continued in force by Section 84, Article IX of the “Home Rule Charter” and Ordinance No. 542 (see Section 1001.20 -Revised Ordinances), made “no valid alternative provision to Section 64.140” and, as stated, that Ordinance No. 1536 “by its own terms adopts Chapter 64 as its standard.” Respondent relies on Ordinance No. 429, Section 2, now Section 1001.010 of the Revised Ordinances, hereinbefore set out, but that section closes with the words, “except that such modification or variation in the provisions of the statute as may be authorized or required by reason of the adoption of the St. Louis County Charter may be governed by ordinance”, (italics ours) and Section 3 of the same ordinance (now Section 1001.020) provides: “All Master Plans and parts thereof, recommendations and regulations of the Planning Commission and all supplements and amendments thereto adopted, pursuant to the provisions of Chapter 64, RSMo 1949, require the approval by ordinance of the St. Louis County Council.”

We find nothing in the recital of Section 2 of Ordinance No. 1536, relied upon by respondent, from which a conclusion could legally be drawn that the ordinance itself, by its terms, recognized that it could not be properly adopted except by the unanimous vote of the seven members of the St. Louis ■County Council and, certainly, Section 64.-140 RSMo 1949, V.A.M.S. made no such requirement with reference to the St. Louis County Council.

In Schmoll v. Housing Authority of St. Louis County, supra, 321 S.W.2d 494, 498, 499, the court said: “As a charter county it functions in a dual capacity, sometimes performing state functions and sometimes performing municipal functions, and its constitutional grants in these capacities take precedence over legislatively granted power (State on Information ex rel. Shepley Dalton v. Gamble, 365 Mo. 215, 280 S.W.2d 656), [sic] but its county council is not a county court under another name. * * * There is no constitutional or statutory requirement that ⅛ charter county must exercise the powers and duties enjoined upon it by the constitution in precisely the same manner'as prescribed by the general law of the state’ (Heilman v. St. Louis County, Mo., 302 S.W.2d 911, 916), but its county council is bound and obliged to observe and comply with its explicit organic' law.”

The right of the County Council to exercise legislative power pertaining to planning and zoning was expressly granted by Art. Ill, Section 22, Subdivision 20 of the Charter. Also note the provision in a latter subdivision, Section 22, subdivision 24, which recognizes that changes may be made as authorized by the Constitution, law and this Charter. Changes were authorized by Section 18(c), Article VI of the Constitution. There is no contention here that in the passage of Ordinance No. 1536 the provisions of Ordinance No. 542, Art. XXV (now Section 1003.340 of the Revised Ordinances of the County) or of any Charter provision were not fully complied with.

Respondent further argues that the ■“Acts of Zoning in St. Louis County are subject to the state policy as set forth in Sections 64.010-64.160”, because “zoning is a governmental matter over which the state retains control” and that “even if the power to zone upon the filing of a protest is viewed as a procedural matter under Article VI, Section 18(b), it would be subject to Sections 64.010-64.160.” It is true that zoning regulations are an exercise of the police power of the state and that the exercise of the police power is a governmental function, nevertheless a portion of the state’s police power may be delegated, and it has been delegated to St. Louis County by Section 18(c) of Article VI of the Constitution of Missouri 1945. State on Inf. of Dalton ex rel. Shepley v. Gamble, supra, 280 S.W.2d 656, 660 [4, 5]; State on Inf. of Dalton v. Metropolitan St. Louis Sewer Dist., 365 Mo. 1, 275 S.W.2d 225, 230 [2-6],

In the Gamble case, supra, the court said: “Moreover, charter counties are endowed with some of the powers and functions of a municipal corporation in the area outside incorporated cities. They are empowered to exercise legislative power pertaining to public health, police and traffic, building construction, and planning and zoning in such areas. Section 18(c), supra. These are police powers ordinarily vested in municipal corporations. See, for example, Sections 73.010 and 73.110 RSMo 1949, V.A.M.S., relating to the organization and powers of cities of the first class. A county under the special charter provisions of our constitution is possessed to a limited extent of a dual nature and functions in a dual capacity. It must perform state functions over the entire county and may perform functions of a local or municipal nature at least in the unincorporated parts of the county. These are constitutional grants which are not subject to, but take precedence over, the legislative power.” (Italics ours.) (280 S.W.2d 656, 660.)

In the case of State on Inf. of Dalton v. Metropolitan St. Louis Sewer Dist., supra, 275 S.W.2d 225, 228, this court, in construing Section 30, Art. VI of the Constitution of Missouri 1945 authorizing the people of St. Louis City and St. Louis County to establish a Metropolitan Sewer District, said: “The authority to prepare such a district plan is a broad grant of legislative power to the freeholders (with confirmation by the voters) similar to the grants in Sections 18, 19 and 20, Article VI, giving certain counties and cities the right to frame, adopt and amend their own charters. It is even greater because their plan supersedes conflicting laws. It is a recognition of the fact that the St. Louis Metropolitan area has many problems which require ‘services common to the area’; and it warrants provisions for powers, essential to preservation of the public health and welfare, for a district such as this one which, as hereinafter shown, exercises only governmental powers. The apparent intent is to give the freeholders, with the approval of the voters, power to do whatever the Legislature could ordinarily do with respect to the creation, organization and authority of such a district.”

In the case of Hellman v. St. Louis County, Mo.Sup., 302 S.W.2d 911, 916, this court said: “We know of no constitutional or statutory provision that a charter county must exercise the powers and duties enjoined upon it by the constitution in precisely the same manner as prescribed by the general law of the state. * * * Little purpose would be served in authorizing the adoption of charters of local self-government in the more populous counties if such counties could not adopt reasonable means and methods of carrying out their governmental functions in such a manner as to meet the peculiar needs of such counties.”

In Tremayne v. City of St. Louis, 320 Mo. 120, 6 S.W.2d 935, 941, this court pointed out that the charter provisions of the city, in order to avoid conflict, “do not have to accord with the state law in mere matters of detail.”

We must and do hold that the provisions of Section 64.140 RSMo 1959, V.A.M.S. requiring the unanimous vote of three county judges, when a protest is lodged against a re-zoning, was not adopted by the St. Louis County Council as a part of Ordinance 1536, nor was such a provision incorporated in the ordinance by the mentioned recital relied upon by respondent. We further hold that, under Section 18, Art. VI of the Constitution of Missouri, the “Home Rule” Charter of St. Louis County and the mentioned ordinances, including Ordinance No. 542, Section XXV, now Section 1003.340 of the Revised Ordinance of St. Louis County, the latter section takes precedence over Section 64.140 in the respects in issue here; and that Ordinance No. 1536 is not invalid by reason of any failure of the St. Louis County Council to comply with the mentioned specific provisions of Section 64.140 providing for the unanimous vote of county judges. We further hold that Section 64.140 with reference to the unanimous vote requirement of county judges as therein provided has been superseded and does not apply to the St. Louis County Council in passing a re-zoning ordinance.

The judgment is reversed and the cause remanded with directions to enter a declaratory judgment to the effect that Ordinance 1536 is not invalid by reason of any failure to comply with the provisions of Section 64.140 RSMo 1959, V.A.M.S., or by reason of the fact that only five members of the St. Louis County Council initially voted in favor of its adoption.

All concur.


source: Caselaw Access Project

author: HOLLINGSWORTH, Judge.

license: Public Domain

text:
    The STATE of Missouri, at the Relation of Mildred B. JOHNSON, Administratrix of the Estate of John T. Barker, and Mary G. Jacobs, Executrix of the Estate of Floyd E. Jacobs, Appellants, v. C. Lawrence LEGGETT, Superintendent of the Division of Insurance, Respondent. Mildred B. JOHNSON, Administratrix of the Estate of John T. Barker, and Mary G. Jacobs, Executrix of the Estate of Floyd E. Jacobs, Appellants, v. C. Lawrence LEGGETT, Superintendent of the Division of Insurance, Aetna Insurance Company, a Corporation, State Farm Mutual Insurance Company, a Corporation, and Hardware Mutual Casualty Company, a Corporation, Respondents.
    Nos. 48716, 48717.
    Supreme Court of Missouri, Division No. 1.
    July 16, 1962.
    Motion for Rehearing or for Transfer to Court en Banc Denied Sept. 10, 1962.

      Walter A. Raymond, Kansas City, and Terence C. Porter, Columbia, for plaintiffs-appellants.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, and Harry H. Kay, Sp. Asst. Atty. Gen., Eldon, for defendant, respondent, Superintendent of the Division of Insurance.
    George A. Spencer and Roger D. Hines, Columbia, for defendant, respondent, Hardware Mutual Casualty Company.
    Thos. E. Deacy and Deacy & Deacy, Kansas City, for defendant-respondent State Farm Mutual Automobile Insurance Company.
    Thompson Mitchell Douglas & Neill, James M. Douglas, J. Richard Skouby, St. Louis, for respondent, Aetna Insurance Company.
   HOLLINGSWORTH, Judge.

These are appeals taken by the legal representatives of John T. Barker and Floyd E. Jacobs, both deceased, from judgments of the Circuit Court of Cole County dismissing petitions of decedents for review of an order of the Superintendent of Insurance denying claims for attorneys fees allegedly owing Barker and Jacobs by the Division of Insurance since 1936. Jurisdiction is in this court for the reasons that (1) more than $15,000 is involved in each case and (2) the Superintendent of the Division of Insurance (of Missouri) is a party defendant in each case. The first case, No. 48,716, in which the superintendent of insurance is the sole defendant, is an action for mandamus and certiorari. The second case, No. 48,717, in which the superintendent of insurance is sued and joined with him are the above named insurance companies, as representatives of certain classes of insurance companies against whom, it is alleged, an assessment of the fees herein sought could be made by the superintendent, is an action seeking a declaratory judgment and an injunction.

The facts are not in dispute. In one form or another, the basic questions here presented have been considered by this court on many occasions. In substance, as gleaned from the early case of Aetna Insurance Company v. O’Malley, 343 Mo. 1232, 124 S.W.2d 1164, the facts may be thus briefly stated: On October 9, 1922, the superintendent of insurance ordered a reduction of ten per cent in rates in this state on all classes of fire, lightning, hail and windstorm insurance effective November 15, 1922. Approximately 155 insurance companies filed a petition for review in the circuit court of Cole County. At the beginning of the review proceedings the trial court made an order, pursuant to a stipulation signed by attorneys for the companies and the insurance superintendent, allowing the companies to collect the old rate, on condition that in event the companies were unsuccessful they were to refund the excess premiums to the policyholders. The trial court found in favor of the companies. That judgment was reversed in this court, Aetna Insurance Company v. Hyde, 315 Mo. 113, 285 S.W. 65, and the mandate directed' that the defendant (the superintendent of insurance) be restored all things he had', lost by reason of the judgment of the trial court. In August, 1929, the companies began refunding the excess premiums collected by them under and by virtue of the stipulation and court order referred to-It, however, became apparent to the superintendent of insurance that only a portion-of the excess collection of premiums was in-, fact refunded. In June, 1930, the superintendent of insurance, with the approval of the governor, acting under what is now § 374.120 RSMo 1959, V.A.M.S., employed John T. Barker and Floyd E. Jacobs to seek recovery of the balance of the excess premiums collected by the companies which, belonged to the policyholders.

The terms of the contract of employment were that if those attorneys were successful in recapturing this residue, they should be paid from these fimds for their services-such an amount as the court deemed adequate, but if they were unsuccessful in their efforts they were to receive no pay. (On December 1, 1930, Glenn C. Weather-by, whose name will appear in some of the cases dealing with the facts involved, was also employed by the superintendent, with the approval of the governor, to aid Barker and Jacobs, on the same terms.)

Hearing of motions filed in the circuit court of Cole County in May, 1933, by Barker and Jacobs, resulted in a judgment rendered on December 7, 1935, against the companies requiring them to pay into court the sum of $2,750,000 in excess of the amount theretofore refunded, which was-paid over to and héld by the superintendent in accordance with Section 5874, R.S.1929 (§ 379.390 RSMo 1959, V.A.M.S.), providing:

“[U]ntil the final determination of such-action, an amount equal to the difference between the rates fixed by the superintendent in his order and those in effect prior thereto, such funds to be held by the superintendent of insurance to await the result ■of such review, and in the event the orders and directions of the superintendent be set aside, such funds shall be returned to the •companies pro rata, and in the event his orders and directions shall be sustained, then such funds shall be turned over to the policyholders pro rata.”

Barker and Jacobs thereupon filed motions for allowance of fees out of the said fund of $2,750,000. The trial court made an allowance of 15 per cent as attorneys’ fees out of the fund, allowing Weatherby the sum of $137,500, and Barker and Jacobs the sum of $275,000, and declaring a lien upon the fund for these amounts. The ■superintendent of insurance appealed to this ■court. The first question considered by this ■court in deciding the appeal was: Did the superintendent of insurance have the authority to employ the respondents in these restitution proceedings ? In discussing that question, the court (in Aetna Insurance Company v. O’Malley, 343 Mo. 1232, 124 S.W.2d 1164, 1166) stated: “Before a state ■officer can enter into a valid contract he must be given that power either by the Constitution or by the statutes. All persons ■dealing with such officers are charged with knowledge of the extent of their authority and are bound, at their peril, to ascertain whether the contemplated contract is within the power conferred. Such power must be exercised in manner and form as directed by the Legislature. [Cases cited.]” The court in that case also quoted from 59 C.J., § 286, page 172: “Public officers have and can exercise only such powers as are conferred on them by law, and a state is not bound by contracts made in its behalf by its officers or agents without previous authority conferred by statute or the constitution, unless such authorized contracts have been afterward ratified by the legislature. An agreement not legally binding on the state may, however, impose a moral obligation. The doctrine of estoppel, when invoked against the state, has only a limited application, even when an unauthorized contract on its behalf has been performed, and thereby the state has received a benefit, and so it is held that a state cannot by es-toppel become bound by the unauthorized contracts of its officers; nor is a state bound by an implied contract made by a state officer where such officer had no authority to make an express one.”

The court then stated, 124 S.W.2d loc. cit. 1167: “We hold that the superintendent did have a right to employ the respondents in the restitution proceedings. But it does not follow that the superintendent of insurance had a right to make a contract of employment that respondents were to be paid for their services out of the fund restored to him.. It is to be noted that Section 5678 (§ 374.120) supra, does not specify how an attorney who has been employed by the superintendent is to be paid, nor is there any provision in the insurance code as to the method. ‘A statute merely giving an official power to employ counsel with consent of the governor does not convey the right to fix his compensation, * * *.’ 59 C.J. 174, Section 290. It, therefore, follows that the superintendent of insurance had a right to employ the respondents, but did not have the power to contract that their compensation should be paid out of this fund.”

In so holding the court cited and reasserted the principles of law announced in the case of State ex rel. Missouri State Life Ins. Co. v. Hall, Judge, 330 Mo. 1107, 52 S.W.2d 174, 177, which held: “The legislative power to authorize, supervise, regulate, and liquidate insurance companies rests on the interests of the public in the insurance business. It is conceded that the state may through administrative officers supervise and regulate insurance companies in aid of solvency. If so, it has the power to protect those interested, in the event of insolvency. It is a valid exercise of the police power through administrative officers. [Cases cited.] The power was first exercised in 1869 by the enactment of an Insurance Code intended to protect policyholders, stockholders, and the public. Laws 1869, p. 23. The original Code and amendments thereto indicate an intention to regulate the business from beginning to end, thereby protecting individual and public interests. The enactment of this comprehensive Code made the state a real party in interest. The superintendent of insurance is the administrative officer in charge of that interest, and courts are without authority to interfere with his administration of the Code.”

The ultimate holding in Aetna Ins. Co. v. O’Malley, supra, 124 S.W.2d 1164, 1168, was: “The trial court being without authority to interfere with the insurance code of this state, it follows that it erred in allowing the respondents fees from the impounded fund. As above stated, Section 5678 (§ 374.120) supra, does give the superintendent of insurance, with the approval of the governor, authority to employ attorneys to enforce the insurance laws of this state, yet the only way such attorneys can be paid is like any other expense of the insurance department, that is, by an appropriation of the legislature. * * * So, in the case at bar, the respondents must look to the legislature for the payment of their fees.” The ruling in this case has been many times approved and until recently the ruling therein announced was no longer questioned. Weatherby v. Jackson, 358 Mo. 542, 215 S.W.2d 742, 743; Jacobs et al. v. Leggett et al., Mo., 295 S.W.2d 825; Barker et al. v. Leggett, Mo., 295 S.W.2d 836; and cases cited in each of them.

In 1941 (Laws 1941, p. 396, now § 379.-395), the legislature passed an escheat statute dealing with unclaimed funds in the hands of the superintendent of the Division of Insurance. It provided, in substance, that, after diligent effort and failure to locate the owners of any funds (which included a very substantial portion of the funds in the hands of the superintendent recovered by Barker, Jacobs and Weather-by under the restitution proceedings), it was the duty of the superintendent to pay the same to the state treasurer, and. that after allowing a period of five years for the reclamation of any portion of said funds by any owners of a portion thereof, the fund was to be transferred to the general revenue fund of the state.

Thereafter, Weatherby, Jacobs and Barker filed suits to impress any unclaimed portion of these funds remaining in the hands of the state treasurer with a lien for their fees. Unsuccessful in the trial court, they appealed to this court. In an opinion disposing of those' appeals, Weatherby, Jacobs and Barker v. Jackson (three cases), 358 Mo. 542, 215 S.W.2d 742, this court stated that plaintiffs did not ask the court to overrule the opinion written in Aetna Ins. Co., v. O’Malley, 343 Mo. 1232, 124 S.W.2d 1164, but relied upon the provisions of the escheat act. (The opinion in those, cases also noted that the legislature had priorly recognized its authority to compensate attorneys employed by the superintendent of insurance in these cases by appropriating for the use and. benefit of Messrs. Barker and Jacobs the sum of $150,000 [reduced by the governor to $100,000], as shown by Laws 1931, p. 69, § 11;. and further noted that in the case of Lucas v. Lamb, 348 Mo. 900, 156 S.W.2d 634, loe. cit. 637, the court, anticipating early enactment of the escheat statute, had pointedly said: “If, as contended * * *, the State shall become the ultimate beneficiary of a part of this fund, .the question of [Weatherby’s, Jacobs’ and Barker’s] reimbursement may be addressed to the General Assembly") The opinion then noted that there was no language in the escheat statute that could he construed to mean that the circuit court was given authority to allow attorney fees to any person and to order them paid out of this fund, which led the court to further note that the legislature was careful to protect the fund against any claims except those of persons or corporations to whom the money actually belonged, and that the claims, if at all allowable, could only be allowed by the legislature; and further “that the cost of litigation establishing these claims should not be assessed against the fund.”

The opinion, 215 S.W.2d 742, 744, then concluded with these words: “We therefore hold that the only authority given to the circuit court by the section in question is authority to determine whether the fund, or any part thereof, belongs to any person or corporation making claim therefor. The word ‘claim,’ as used in the statute, was evidently used in such a restricted sense. Certainly, in view of the decisions of this court in the various cases, holding that the claimants in the present cases must look to the legislature for payment of their claims, and further, that the Circuit Court of Cole County has no jurisdiction to allow them, the legislature, had it intended to vest the court with such jurisdiction, would have said so in plain and unmistakable language. Furthermore, there is no apparent reason why the legislature would vest the circuit court with such authority. The legislature in the past has appropriated money to pay attorneys and there is no reason why it cannot do so again if it deems the claims meritorious. Whether they are, or are not, we have no authority to say in this case.”

Thereafter, Barker and Jacobs attempted from time to time to induce the legislature to appropriate additional funds to compensate them for services rendered in procuring restoration of $2,750,000 for the benefit of Missouri policyholders. Their efforts in that respect were unsuccessful. In 1951, the balance of the fund was transferred to the general revenue funds of the state.

In 1953, Jacobs and Barker, as plaintiffs, filed two other actions, both of which again sought recovery of these fees. The first was against C. Lawrence Leggett, superintendent of insurance, and joined with him as defendants were the state treasurer, the state auditor and director of revenue. Count one of the petition in that case sought recovery of $275,000, such sum to be impressed as a lien on the aforesaid escheated funds, and for other relief. Count two thereof sought a declaratory judgment. The second suit was against the superintendent of insurance to recover quantum meruit the value of their services. Motions filed by the defendants in each case to dismiss were sustained in the trial court and both cases came on appeal to this court. The judgment of the trial court was affirmed in both cases. The court also held (in the first case) that the judgment denying plaintiffs’ right to enforcement of a lien against the residue of the escheated funds did not deny plaintiffs of any timely pleaded constitutional right and that neither were they entitled to declaratory relief. The first case, 295 S.W.2d 825, 831 [5, 6] [7], also recited facts and quoted from adjudicated cases clearly establishing that plaintiffs had long since waived any constitutional right granted under the 14th Amendment to the Constitution of the United States, and Section 10, Article I, of the Constitution of Missouri, V.A.M.S. In the second case, the court held that an action in quantum meruit would not lie, that denial of the right to recover did not deprive plaintiffs of any timely pleaded constitutional right and that the escheat law was not an ex post facto law. See Jacobs et al. v. Leggett et al., 295 S.W.2d 825, and Barker et al. v. Leggett, Mo., 295 S.W.2d 836, to which cases reference is made for a more extended statement bearing upon and pertinent to the conclusions herein reached.

During the course of the opinion in the second case, 295 S.W.2d loe. cit. 840, it was also stated: “We believe it is the intent of the insurance code to vest the superintendent with primary jurisdiction to approve the usual expenses and to assess the expenses of proceedings against companies. We believe this right of primary decision by the superintendent is exclusive, subject only to review by the courts in the manner provided in the insurance code or as otherwise provided by Chapter 536, RS Mo 1949, V.A.M.S., and more particularly § 536.100 dealing with judicial review of administrative decisions.” (Emphasis is that shown in published opinion.)

Encouraged by the recognition given by this court of the right of review provided by the Administraitve Procedure and Review Act, Chapter 536, Barker and Jacobs filed with the superintendent of insurance a new application for the allowance of said fees and for recovery of expenses incurred in connection with their services. This application presented in great detail the facts above outlined. See State ex rel. Leggett v. Jensen, Judge, Mo., 318 S.W.2d 353, 355. The principal relief sought was that the superintendent:

“(a) Accept jurisdiction of and recognize these claims and this and preceding applications as merged herein.
“(b) Proceed under the Insurance Code and Chapter 536, R.S.Mo. 1949, on notice to hear and determine this application and preceding applications praying allowance of the claims as set forth herein, and to hear evidence thereon.
“(c) Allow and approve these claims as expenses of the Insurance Department in a full and adequate reasonable . amount as may be justified by the evidence which will be presented by the applicants.
“(d) Determine whether these claims and each of them (1) should be allowed as expenses of ‘proceedings’ against insurance companies involved in the restitution proceedings, and assessed . against them ratably; or (2) are usual expenses of the Division (formerly Department) of Insurance payable out of amounts appropriated by law from the Insurance Division fund on warrants issued on such fund on vouchers approved by the Superintendent" and Comptroller.”

The superintendent thereupon sought advice both from the attorney general and from counsel for interested insurance companies as to the proper course of procedure. The attorney general gave it as his opinion that “under the provisions of Section 374.-220, RSMo 1949, you do have jurisdiction to consider and determine the application now before you. As we have pointed out above, there is no statutory requirement that a hearing for such purpose be held. We think it obvious that the Superintendent is not required to hold a hearing on every claim or question that may be presented to him for determination. However, the circumstances of the present application may be such that denial of a hearing would be considered by a reviewing court to be an arbitrary and unreasonable act. Determination of the procedure is, we feel, primarily a matter within your discretion.”

Thereafter, on February 7, 1958, the superintendent, declining to afford plaintiffs a hearing on said claims, advised plaintiffs’' counsel by letter as follows:

“After a careful review of all the matters which have been submitted to me in connection with the above mentioned claims, I have concluded that I am not required by law to grant a hearing upon the applications before making a decision upon them.
“Even though I am not required by law to grant applicants a hearing upon their claims before deciding them, I assume that I could grant such a hearing if I thought the same would enable me better to rule upon the claims. However, it is my view that even though I should hold a hearing on these claims and should conclude after such hearing that applicants had been lawfully employed as claimed in the applications, and had rendered valuable services pursuant to said employment, the value of the services of claimants could not be allowed as expenses of the insurance department which could be paid out of current appropriations, as provided by Section 374.160, R.S.Mo. 1949, nor could the value of said services be assessed against insurance companies as expenses of proceedings against such insurance companies as contemplated by Sections 374.160 and 374.220, R.S.Mo.1949.
“In view of the above, I am respectfully denying your application for a hearing upon these claims, and must deny the claim.”

Deeming their application to be a “contested case”, as that term is defined in § 536.010, plaintiffs filed a petition for review in the circuit court of the county of plaintiffs’ residence, Jackson County, as required for review of “contested cases” under § 536.110. The superintendent of insurance, challenging plaintiffs’ right to a review of the refusal of the superintendent to grant them a hearing on their claim for fees under the provisions of § 536.100, sought prohibition against the judge of the circuit court of Jackson County from entertaining jurisdiction of the petition for review. State ex rel. Leggett, Superintendent, v. Jensen, Judge, Mo., 318 S.W.2d 353. In that case this court, by majority vote, held that the application filed by plaintiffs for the allowance of fees in this case was not a “contested case” as defined in § 536.100 providing for judicial review in “contested cases”, and that in view of the provisions of § 536.110 fixing the venue of petitions for review of “contested cases” in the circuit court of the residence of the plaintiffs, the circuit court of Jackson County was without jurisdiction to determine the petition for review here in question. Rather, it was held, plaintiffs’ petition for judicial review of the order of the superintendent denying them a hearing on the instant application for fees was authorized by the provisions of § 536.105 and venue of an action for review of any action taken under that section was in the circuit court of Cole County, State ex rel. State Tax Commission v. Walsh, Mo., 315 S.W.2d 830, 835, and the preliminary rule in prohibition was made absolute. Anticipating the possibility of such a ruling, the plaintiffs, in the meantime, had filed in the circuit court of Cole County the petition for review here under consideration. That petition made the following contentions:

“The aforesaid decision and action of the defendant Superintendent constitutes a denial to Barker and Jacobs of due process of law, of a hearing and opportunity to be heard, and of equal protection of the law, all in violation of the constitutions of the United States and of the State of Missouri; defendant’s refusal to hear, audit, allow, and provide for adequate payment of the claim of Barker and Jacobs violates their statutory and contractual rights and denies and deprives them of substantive and procedural rights as determined in the aforesaid opinions of the Missouri Supreme Court, rendered November 12, 1956; and, in addition, constitutes a violation of the rights of Barker and Jacobs under the constitutions of the United States and of the State of Missouri in the following respects :
“(a) Such denial of recourse and payment to. a person by an agency or official thereof exercising judicial or quasi-judicial functions constitutes an impairment of contract in violation of Article I, Section 10, Paragraph 1 of the Constitution of the United States and of sections 13 and 14 of Article I of the Constitution of Missouri, 1945.
“(b) Such refusal and denial of payment constitutes a deprivation of rela-tors’ liberty and property without due process of law in violation of Article I, Section 10, Constitution of Missouri, 1945, and of Section 1 of the Fourteenth Amendment to the Constitution of the United States for the reason that Barker and Jacobs are denied and deprived of any judicial or other remedy for the enforcement of their legal, equitable, and property rights.
“(c) Such refusal and denial of payment constitutes a deprivation of the right of freedom of contract of Barker and Jacobs in violation of the Fourteenth Amendment of the Constitution of the United States.
“The aforesaid action of the defendant Superintendent in failing and refusing to entertain jurisdiction of and rule upon the claims of Barker and Jacobs from 1936 to February 7, 1958 constituted an unreasonable delay in deciding the case; and his decision and action in denying their application for allowance and payment thereof without giving them notice or a hearing, formal or informal, is unconstitutional, unlawful, unreasonable, arbitrary, capricious, involves and constitutes an abuse of discretion and rightful jurisdiction, and is coram non judice; is unsupported by competent and substantial evidence upon the whole record; is in contravention of the'aforesaid opinions of the Supreme Court of Missouri rendered November 12, 1956; and is contrary to the aforesaid opinion of the Attorney General of Missouri, the lawful legal advisor of the defendant Superintendent.”

Section 536.105, which in State ex rel. Leggett v. Jensen, Mo., 318 S.W.2d 353, we held controlling in the disposition of this case, provides:

“* * * and in any such review proceeding the court may determine the facts relevant to the question whether such person at the time of such decision was subject to such legal duty, or had such right, or was entitled to such privilege, and may hear such evidence on such question as may be properly adduced, and the court may determine whether such decision, in view of the facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involves an abuse of discretion; and the court shall render judgment accordingly, and may order the administrative officer or body to take such further action as it may be proper to require; but the court shall not substitute its discretion for discretion legally vested in such administrative officer or body, and in cases where the granting or withholding of a privilege is committed by law to the sole discretion of such administrative officer or body, such discretion lawfully exercised shall not be dishtrbed."

Several contentions here made by plaintiffs have heretofore been finally adjudicated against them, of which adjudications we take judicial notice:

1. No allowance can ever be made plaintiffs for the fees herein claimed out of the $2,750,000 returned to the superintendent of insurance for the benefit of the policyholders, even though substantial portions of said fund have, by law, escheated to and become the property of the state.

2. Any allowance made these plaintiffs can be made only by the legislature as provided by § 374.160, and within the limits and in the manner therein provided. See cases, supra.

3. Plaintiffs have not been deprived of any constitutional right impairing the obligation of a lawful contract in violation of Article I, § 10, of the Constitution of the United States or of Article I, §§ 13 and 14, of the Constitution of Missouri. See cases, supra.

4. The refusal of the superintendent to recognize and allow said fees does not constitute deprivation of plaintiffs’ liberty and property within the due process clauses of the Constitution of the United States and of the Constitution of the State of Missouri or the right of freedom of contract in violation of the Fourteenth Amendment of the Constitution of the United States. See cases, supra.

Assuming, as did the superintendent of insurance, that Barker and Jacobs had been lawfully employed as claimed in their respective applications and that they had rendered valuable services pursuant to their employment, the sole question remaining is: Did the superintendent err in holding that the value of their services could not be allowed as an expense of the insurance department which could be paid out of their current appropriation, as provided by § 374.160?

We think nothing of value can be added to what we have long since and, in some instances, frequently held ever since Aetna Insurance Co. v. O’Malley, 343 Mo. 1232, 124 S.W.2d 1164, decided in 1938. There we found and held that the contract for fees earned by Barker and Jacobs made such fees payable only from funds realized in the restitution proceeding; that the contract providing for the payment of any such fees out of these funds was invalid; that Barker and Jacobs were held chargeable with knowledge of that fact and were, therefore, prevented from recovering such fees from said funds under any theory of estoppel or otherwise.

It clearly follows that the very terms of the contract for fees negate, at least inferentially, their being made a legal charge against any other fund derived from any other source whatsoever. It was not shown, nor is it contended, that there was any agreement or understanding that such fees should constitute a charge against the insurance companies who had instituted the action to set aside the rate increase. Neither was it shown, nor is it contended, that there was any agreement or understanding that such fees were to constitute an expense of the insurance department to be paid monthly out of warrants issued by the state auditor on vouchers approved by the superintendent and comptroller, as provided by §§ 374.160, 374.220, 374.230 and 374.260. And, certainly, we have not been cited to any law justifying a finding under the facts here shown that the refusal of the superintendent to allow and certify them for payment by either method can be held to have deprived claimants of fees legally owed Barker and Jacobs.

True, it has been suggested in one or more of the opinions rendered in these cases that the legislature could recognize a moral obligation to pay for these services and of its own volition assume a quasi-legal obligation to appropriate funds for the payment of them. The superintendent of insurance, however, is merely an official of the executive branch of the state government, with powers limited to the functions prescribed by the statutes relating to the Division of Insurance. As such, he cannot be convicted of abuse of any discretionary power vested in him under those statutes in refusing to certify the fees here sought for payment by either defendant insurance companies, or any of them, or by assessing them as an expense of the Division of Insurance.

When the superintendent assumed as true the facts upon which the claims vrere asserted and denied them, he, in effect, reviewed and ruled them on their merits, as required by § 536.105. Such review clearly constituted due process. State ex rel. Leggett v. Jensen, Mo., 318 S.W.2d 353, 357 [3,4], Moreover, such review was not violative of Article !,.§§ 13 and 14, of the Constitution of Missouri. Aetna Ins. Co. v. O’Malley, and Jacobs v. Leggett, both supra.

The decision herein reached makes it unnecessary to discuss the further contentions and questions raised.

The judgment of the trial court dismissing the applications for fees is affirmed.

All concur.

      .Messrs. Barker and Jacobs died subsequent to the filing of their claims and their respective legal representatives have been duly substituted in their stead.

      . Statutory references, insofar as practicable, are to B-SMo 1959, V.A.M.S.

      . Emphasis shown is that of this writer unless otherwise indicated.


author: PER CURIAM.

text:
    SEARS, ROEBUCK & COMPANY, a Corporation, et al., Appellants, v. Sherman ADKINS, Appellee.
    Court of Appeals of Kentucky.
    June 22, 1962.
    Rehearing Denied Sept. 28, 1962.
    G. B. Johnson, Jr., Dysard, Dysard & Johnson, David O. Welch, Ashland, for appellants.
    Dempsey A. Cox, Creech & Cox, Ash-land, for appellee.
   PER CURIAM.

This is a motion for an appeal from a judgment against Sears, Roebuck & Company in favor of Sherman Adkins of $281.50 for a hospital bill.

We have carefully considered the record and we find no errors therein prejudicial to the substantial rights of appellants.

Wherefore, the motion for an - appeal is overruled and the judgment is affirmed.


author: WILLIAMS, Judge.

text:
    Aaron M. HALE et al., Appellants, v. D. T. NICKELL, Appellee.
    Court of Appeals of Kentucky.
    March 16, 1962.
    Rehearing Denied Sept. 28, 1962.
    Burchett & Burchett, Thomas Burchett, Ashland, for appellants.
    Dysard, Johnson & Welch, David O. Welch, W. H. Dysard, Ashland, for ap-pellee.
   WILLIAMS, Judge.

The appellants, Aaron M. Hale and Anna M. Hale, owned a home near Ashland, Kentucky, which was sold through the efforts of appellee, D. T. Nickell, a real estate broker. Appellants brought suit for damages sustained as the result of delay in consummating the sale and appellee counterclaimed for services rendered. The case was heard by the court sitting without a jury and judgment was entered awarding appellee the sum.of $1500 for services rendered. This appeal results.

The appellants argue that the appellee’s claim was barred by the statute of frauds; that the transaction was abandoned by the broker; that the appellant Anna M. Hale could not make a binding contract to sell the property; that the appellee was the agent of the purchaser and not the seller; that the court erred in awarding a judgment against Aaron M. Hale; that the ap-pellee is not entitled to recover on the theory of quantum meruit; and that the court erred in refusing to award the appellants damages. Except for the right of appellee to recover upon quantum meruit, all of the objections to the judgment of the lower court are resolved by the factual situation which existed. The circuit judge made the following findings of fact:

“1. The plaintiffs, Aaron M. Hale and Anna M. Hale, are the joint owners of the real estate involved in this action.
“2. The defendant, D. T. Nickell, is a Real Estate Broker licensed and doing business in the State of Kentucky.
“3. The plaintiffs desired to sell their property and had been seeking to make a sale for several months prior to May 1, 1956. Previously, they had established a proposed sale price of $31,500 and had agreed to pay a sales commission of five per cent; with a net price to the seller of $30,000.
“4. On or about May 2, 1956, Jack A. Huth, a prospective buyer, knowing that D. T. Nickell was a Real Estate Broker who represented house owners having property for sale, inquired of the defendant whether he did have any properties for sale. Nickell contacted the plaintiffs and ascertained that the sale price was $30,000, plus $1500 to cover a real estate commission, making a total of $31,500, and that he might show the property as their representative to Huth as a prospective buyer. The plaintiffs knew that D. T. Nickell was a Real Estate Broker who represented sellers having property to sell because they knew him personally and, also, he had previously been in a real estate transaction with them.
“5. After the original contact, there were subsequent contacts between the plaintiffs, Nickell, and Huth, which resulted in a contract of sale under which the plaintiffs agreed to sell their property to Huth for $31,500, as follows: $26,500 in cash and a second mortgage in the sum of $5000.00. An agreement was entered into for said agreed price. Thereafter a difference arose between the buyer and the seller as to encroachments and other representations that resulted in an adjustment of $1500 to the seller, thereby leaving a balance of $30,000.
“6. The customary fee of a Real Estate Agent for selling the property in this area was $1500, as shown by the Fee Schedule of the Real Estate Association and the testimony of the Real Estate Agents. The plaintiffs knew that this was the customary fee and they also knew before the Contract of Sale was signed between them and Huth that the defendant expected the commission of $1500.”

CR 52.01 provides that in actions tried upon the facts without a jury the court shall find the facts specifically. The findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. See Clay, Kentucky Civil Rules, Author’s Comment 6. Although there was contradictory testimony regarding some of the facts found by the circuit court, nevertheless they are substantiated by the evidence and are not clearly erroneous. Such being the case it is evident that appellants and ap-pellee entered into an oral contract which the appellee did not abandon.

It is admitted by appellee that recovery may not be had on an oral contract for the sale of real estate. KRS 371.010(8). But he insists that, although the statute of frauds prohibits his recovery under the oral contract, nevertheless he is entitled to recover for his services rendered on a quantum meruit basis. In Clinkinbeard v. Poole, Ky., 266 S.W.2d 796, 41 A.L.R.2d 901, it was said:

"The general rule is that one who receives benefit from the labor of another, or who acquires property of another under an unenforceable contract, must pay on a quantum meruit basis the value of the benefits thus received. Although no action can be maintained on an oral contract within the statute of frauds, or for damages on account of its breach, the law ordinarily will not permit one party to an unenforceable contract to retain benefits conferred upon him by the other party in the performance of it”

The appellants received benefit from the services rendered by appellee. Although relief on a quantum meruit basis was not specifically pleaded by appellee, testimony relative to the value of services was introduced and no objection was made thereto. Consequently, it must be assumed that the issue was tried with the implied consent of both parties and shall now be treated as if it had been raised in the pleadings. CR 15.02.

The appellants claimed they were damaged because of a delay in consummating the sale. The delay was said to have been occasioned by a lis pendens notice which was filed by appellee in the Greenup County Court Clerk’s office. The circuit court found as a fact that the filing of that notice did not result in any damage to appellants, and that the delay in completing the contract of sale was due to requirements of the mortgagee which were not related to the claim of the appellee. Having found that delay in completing the sale was not occasioned by filing of the lis pendens notice, it is obvious appellants were not entitled to recover any damages because the notice was filed.

Judgment affirmed.


author: STEAKLEY, Justice.

text:
    NEW AMSTERDAM CASUALTY COMPANY, Petitioner, v. Janies J. JORDAN, Respondent.
    No. A-8885.
    Supreme Court of Texas.
    June 20, 1962.
    Rehearing Denied Oct. 3, 1962.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Jerry V. Walker and Larry W. Starr, Houston, for petitioner.
    John H. Holloway, Houston, for respondent.
   STEAKLEY, Justice.

This is a compensation case in which respondent (plaintiff below) had judgment based on jury findings of total incapacity for fifty-five weeks and partial incapacity for seventy-five additional weeks. Respondent appealed and urged nine points of error. The Court of Civil Appeals classified the “principal contentions” of respondent as six, overruled five, and sustained the sixth described by the Court of Civil Appeals as “The Trial Court abused its discretion in denying a new trial on the ground of material 'newly discovered evidence’ of additional surgery performed on plaintiff after the trial of the case but before Motion for New Trial was acted on.” One Justice dissented on motion for rehearing in the latter respect. 3S3 S.W.2d 256.

We granted writ of error on petitioner’s single point of error which urged that “The Court of Civil Appeals erred in holding that the trial court abused its discretion in refusing to grant respondent a new trial upon grounds of newly discovered evidence.”

Respondent was injured on September 12, 1957, and underwent back surgery on November 4, 1957. The case was tried during the week of October 15, 1959, but the judgment of the trial court was not entered until July 25, 1960. On August 22, 1960, respondent filed his amended motion for new trial based, in part, on the proposition that on August 18, 1960, he had undergone a second back operation necessitated by the injury of September 12, 1957, which resulted in his temporary incapacity extending longer than the seventy-five weeks found by the jury in the trial of the case.

We mention at this point that the procedure for determining liability of the association for medical services furnished to or received by an injured employee after the date of judgment, provided by the amendment to Section 5 of Article 8307, Vernon’s Ann.Civ.St. (Acts 1957, 55th Leg., p. 1186, Ch. 397) is not involved here. It is to be noted in this connection that no such procedure is provided in contemplation of post-trial developments bearing on the question of liability for a greater or lesser period of incapacity than found upon trial of the case, and as embodied in the judgment of the court.

The principles governing post-trial evidence developments were long ago established by this Court. In Mitchell v. Bass, 26 Tex. 372 (1862), Chief Justice Wheeler wrote:

“ * * * In deciding upon motions for new trials on the ground of newly discovered evidence, courts have found it necessary to lay down stringent rules, and to scrutinize such applications with much strictness, to prevent the mischiefs which would otherwise be produced. * * * Such motions are received with careful scrutiny, and are held to address themselves very much to the discretion of the court; and where the court has refused an application made upon this ground, the appellate court will not reverse, unless it shall appear that the court below has not exercised its discretion according to the established rules of law. * * * Where there can be any doubt of the justice of the verdict, to' refuse a new trial, when the party has really discovered new evidence of a' conclusive tendency, would be against justice and precedent; and by new evidence is meant proof of some new and material fact in the case which has come to light since the trial.”

In holding that the newly discovered evidence under review in the above case was not cumulative and afforded a proper basis for new trial, the court continued:

* * * It is not proposed to multiply witnesses to any distinct fact or circumstance testified to by witnesses upon the trial; but it brings to light a new and independent truth, which the testimony upon the trial sought, but in vain, to prove.
“ * * * The new evidence relates to the proof of a fact by means so dissimilar from that used upon the trial, as to afford no ground for treating it as cumulative merely of the evidence upon the trial. It is of so decisive a nature, so material to the just decision of the matter in controversy, * *

Chief Justice Gould in Wolf v. Mahan, 57 Tex. 171, 172 (1882), said:

“The reason of the rule forbidding a new trial for the purpose of admitting cumulative testimony does not apply where the party has had no fair opportunity to procure and adduce evidence on an issue raised by his adversary for the first time, during the trial, by the introduction of evidence which could not be anticipated. The reason of the rule is that public policy, looking to the finality of trials, requires that parties be held to diligence in preparing their cases, and that they shall not be allowed a second trial because they mistook the amount of testimony requisite. Powell v. Jones, 42 Barb. 30 [42 N.Y. 30]. But the policy which seeks to limit continued litigation does not apply where a party has had no fair opportunity to present his side of the case — no real day in court. In discussing this subject, Chief Justice Wheeler said: ‘It is desirable that there should be an end of' litigation with as little delay and expense as possible, consistently with the great end of litigation — a correct decision of causes according to their real merits'; but it should always be sought in subordination to the great end to be attained.’ Mitchell v. Bass, 26 Tex. [372] 377.”

In Houston & Texas Central Railway Co. v. Forsyth, 49 Tex. 171, 180 (1878), the Court discussed the problem of cumulative evidence as follows:

“ * * * Cumulative evidence, as has been often said, is additional evidence of the same kind to the same point. Although evidence tends to prove the same proposition as that previously introduced, yet it is not cumulative when it is of a different character, and merely tends to prove the former proposition by proof of a new and distinct fact. ‘The meaning of the rule, says Judge Woodbury, in Aiken v. Bemis, 3 Wood. & Min., [348] 358, ‘cannot be to exclude, as cumulative, newly-discovered evidence of subordinate points or facts bearing • on the general question; for in such ■ a view, no new trial for new evidence could ever be obtained, all new evidence relating, as it must if it be pertinent, to the general ground or general fact put in issue before. But it must mean that new evidence to a subordinate point or fact, is not compe- - tent where the subordinate point or particular fact was before gone into; because it is then cumulative or additional as to that fact.’ ”

“A new trial will not be granted on the ground of newly-discovered evidence, unless it is made to appear that it has come to the knowledge of the applicant since the trial; that it could not have been sooner discovered by the exercise of diligence; that it is not merely cumulative; that it is not for the purpose of impeachment.” Conwill v. Gulf, C. & S. F. Ry. Co., 85 Tex. 96, 19 S.W. 1017 (1892).

See also McDonald, Texas Civil Practice, Vol. 4, Sec. 18.16; 31 Tex.Jur., Sec. 81, p. 90 et seq.; Texas Employers’ Insurance Ass’n v. Moser (Tex.Civ.App.), 152 S.W.2d 390.

The principles thus announced have been applied to the problem of granting new trials upon the ground that subsequent events show a more serious personal injury than indicated at the time of the trial. See 39 Amer.Jur., Sec. 176, p. 180, and annotations in 31 L.R.A.2d 1236, and 45 L.R.A., N.S., 87. Respondent relies on the Kentucky case of Anshutz v. Louisville R. Co., 152 Ky. 741, 154 S.W. 13, 45 L.R.A.,N.S., 87, which was the subject of the foregoing annotations. The analysis of this case by the Supreme Court of Missouri in Curry v; Thompson, 247 S.W.2d 792, 31 A.L.R.2d 1225, is particularly relevant:

“The Anshutz case facts are readily distinguishable from our case here. In the Anshutz case the medical opinions there given by the doctors (and upon which the verdict was there based) were bottomed upon an assumption of certain physical facts (prior removal of both fallopian tubes) which assumption the after-trial facts demonstrably proved to be erroneous. In the instant case the questions made an issue by the evidence (and now pertinent) are as to the extent and severity of plaintiff’s injuries, i. e., whether such injuries are so permanent as to prevent plaintiff ever returning to his former railroad switching employment. Those issues were here litigated and there was expert opinion evidence upon every side of those issues. In the Anshutz case the verdict was based on evidence that the operation had rendered plaintiff barren but the after-trial facts showed that a child was developing at the time of the trial. In Woods v. Kentucky Traction & Term. Co., supra, in discussing the Anshutz case, the court said [252 Ky. 78, 65 S.W.2d [961] 966]: ‘If this operation had been performed, as testified to by the doctors — that is, if the fallopian tubes had been removed — Mrs. Anshutz could not have had a baby, but she did have one, and the tumor turned out to be a boy.’ Mrs. Anshutz’ barrenness was not there an issue of the evidence for in that case there was no testimony to contradict that of the surgeons who operated her that they had actually removed her fallopian tubes and that naturally, surgically and physiologically, she had been thereby rendered barren. But in our case here the permanency of plaintiff’s injuries, their extent and severity, and whether he could ever return to his former railroad switching employment were all issues of the evidence."

Missouri-Kansas-Texas R. Co. v. Evans, 151 Tex. 340, 250 S.W.2d 385, considered by the majority of the Court of Civil Appeals to be controlling in the instant case, is likewise distinguishable; cancer as the cause of incapacity was not “of the evidence” in the trial of the case. As said in the dissenting opinion below, Evans involved “an entirely new, unknown, different and unknowable cause of incapacity,” which was discovered by a post-trial operation. The operation did not cause or result in additional or extended incapacity; it revealed cancer as the possible cause of the whole incapacity and, as this Court pointed out in its opinion, cancer as a possible cause was not mentioned in the trial of the case and was not before the jury in any respect in passing upon the merits of the case. In the words of this Court in Mitchell v. Bass, supra, the evidence of cancer in Evans was “new evidence of a conclusive tendency”; it brought to light “a new and independent truth,” and was “decisive” in nature and “so material to the just decision of the matter in controversy.”

On the other hand, the after-trial evidence in the case at bar, consisting of a second back operation over three years after the injury, two years and nine months after the previous back operation, and ten months after the trial of the case, was not “dissimilar to that used upon the trial” and was “additional evidence of the same kind to the same point” as that introduced at the trial touching the question of respondent’s incapacity. It is true that the second back operation was a new fact but it did not “bring to light a new and independent truth,” and we do not think it can be said that respondent has not had his day in court or that the requirements for overriding the public policy requiring finality of trials have been met. Moreover, the evidence does not, in our opinion, partake of a conclusiveness and decisiveness upon the merits of the case to the extent of showing that justice has not been attained and that, as a matter of law, the trial court abused its discretion in denying the motion.

Apart, then, from the question of whether or not the post-trial facts alleged in the motion for a new trial were sufficiently established at the hearing (which we do not decide), we hold that the Court of Civil Appeals erred in reversing and remanding the case for another trial upon the ground of newly discovered evidence.

This, in turn, requires our consideration of respondent’s cross assignments of error to the refusal of the Court of Civil Appeals to “consider” his second, third, and fourth points of error relating to the exclusion of certain testimony and to respondent’s exceptions to Special Issue No. 9 in the charge of the trial court, together with the cross assignments of error to the action of the Court of Civil Appeals in overruling respondent’s fifth and sixth points of error based upon alleged jury misconduct and prejudicial and inflammatory jury argument.

Respondent’s second and third points of error in the Court of Civil Appeals complained of the exclusion of the testimony of the witness McAtee, an employee of United Gas Company, with respect to the general employment policies of the company pertaining to an applicant who had undergone back surgery, together with the exclusion of a pamphlet issued by United Gas for general use by its examining physicians.

It appears from the bill of exceptions taken by respondent to the ruling of the trial court in sustaining objection to the testimony of the witness McAtee that the witness had no personal knowledge of respondent’s application for employment with the company; further, his testimony as developed by respondent under his bill of exceptions was altogether general in nature as to the policy of the company. It also appears that respondent was permitted to testify that he had failed to obtain employment at United Gas Company and this presumably because of his back injury. We hold that the exclusion of the testimony was not error.

Respondent’s fourth point of error below urged error in Special Issue No. 9, which read: “What do you find from a preponderance of the evidence to be the average weekly wage earning capacity of James Jordan during the existence of such partial incapacity, if any, you have so found” on the ground that the issue was a comment on the weight of the evidence in failing to employ the words “if any” following “earning capacity,” thereby assuming that respondent did have earning capacity during his partial incapacity. Respondent cites the case of Kirk v. Marshall (Tex.Civ.App., 1952,) 247 S.W.2d 454, no writ history, wherein it was held that omission of the words “if any” after the words “exemplary damages” does “assume that the jury has found there was exemplary damage,” and was error.

The transcript does not include the complete charge of the court or any definitions which may have been given. The special issues are shown and disclose that the jury found that respondent’s total incapacity was temporary and would continue for fifty-five weeks; that the injury sustained by respondent was a producing cause of partial incapacity; that the partial incapacity was temporary and would continue for seventy-five weeks; and, in answer to Special Issue No. 9, that the average weekly wage earning capacity of respondent during the partial incapacity was $24.00. We assume that the court instructed the jury with respect to partial incapacity in harmony with the accepted definition thereof which comprehends some earning capacity but whether or not this was done Special Issue No. 9, as worded, properly presupposes an earning capacity if the jury in answer to previous issues had found that the injury sustained by respondent was a producing .cause of a period of partial incapacity. This easily distinguishes Kirk v. Marshall, supra, and we see no impropriety in the wording of the issue as constituting a comment on the weight of the evidence.

We agree with the decision of the Court of Civil Appeals overruling respondent’s fifth and sixth points of error and pre-termit discussion thereof.

The judgment of the Court of Civil Appeals is reversed, and that of the trial court is affirmed.


author: WALKER, Justice.

text:
    Mary E. BISHOP, Petitioner, v. Edmund M. BISHOP, Jr., Respondent.
    No. A-8745.
    Supreme Court of Texas.
    July 18, 1962.
    Rehearing Denied Oct. 3, 1962.

      Cantey, Hanger, Johnson, Scarborough & Gooch, Charles L. Stephens, with above firm, Fort Worth, for petitioner.
    Wynne, McKenzie, Stroud, Jaffe & Tinsley, Henry Baer, with above firm, Dallas, for respondent.
   WALKER, Justice.

This is a divorce case. After a trial before the court without a jury, judgment was entered granting a divorce to the wife, who is petitioner here, and awarding her title to a Cadillac automobile and certain household furnishings. All of such personal property was originally purchased by respondent with his separate funds. When respondent appealed to the Court of Civil Appeals, he complained only of the trial court’s action in awarding the automobile and household furnishings to petitioner. The intermediate court .reversed and remanded, holding: (1) that there is no evidence to support a finding that petitioner had acquired the property by gift from respondent, and (2) that the circumstances of the parties will not justify an award of the same to petitioner in an exercise of the powers conferred upon the district court by Article 4638. On motion for rehearing, Associate Justice Renfro filed a dissenting opinion stating only that he would affirm the judgment of the trial court. 350 S.W. 2d 578.

We are met on the outset by respondent’s motion to dismiss the application for writ of error for want of jurisdiction. Since this is a divorce case, our jurisdiction must rest upon either Subdivision 1 or Subdivision 2 of Article 1728. See Article 1821; Williams v. Williams, 160 Tex. 99, 325 S.W.2d 682. Petitioner asserts jurisdiction under both of these subdivisions, but we agree with respondent that the holdings of the Court of Civil Appeals in the present case are not so clearly in conflict with the decisions relied upon by petitioner as to authorize us to exercise jurisdiction under Subdivision 2. The rulings are not upon the same or such similar facts that the earlier decisions, if followed, would necessarily determine the disposition of this appeal. See International Harvester Co. v. Stedman, 159 Tex. 593, 324 S.W.2d 543.

Subdivision 1 of Article 1728 extends our jurisdiction to cases in which the judges of the Court of Civil Appeals disagree upon any question of law material to the decision. Respondent argues that we do not have such a case here because it is impossible to determine from the dissenting opinion the precise question or questions on which the members of the Court of Civil Appeals disagreed. A different problem would be presented if the judgment of the intermediate court were based to any extent on its determination of a question of fact. According to the opinion filed in this case, the judgment of the trial court was reversed and the cause remanded because of the conclusions reached by the majority on two questions of law. Since the dissenting justice concluded that the judgment of the trial court should be affirmed, he must have: (1) disagreed with the majority on one or both of the law questions discussed in the opinion, (2) determined that such questions were not properly preserved and presented for decision, or (3) decided that the holdings made by the majority did not justify or require that the judgment of the trial court be reversed. In either event he necessarily disagreed with the majority on some question of law that was of controlling importance in disposing of the case. This gives us jurisdiction under Subdivision 1 of Article 1728, and the motion to dismiss is accordingly overruled. It should be pointed out, however, that when the justices of the Court of Civil Appeals are unable to agree as to the disposition of a case in which the decision of the intermediate court would ordinarily be final under the provisions of Article 1821, a brief statement indicating the points of difference will facilitate a determination of whether the Supreme Court has jurisdiction.

Findings of fact and conclusions of law were not requested or filed, and the judgment of the trial court should be affirmed if it can be upheld on any legal theory that finds support in the evidence. Petitioner testified that when the Cadillac was purchased, respondent said, “I am giving you the car. I want you to have this Cadillac. I am keeping it in my name, because I am making payments on it, and it should be in my name for this reason.” Respondent admitted that he turned the automobile over to petitioner when it was purchased, and the evidence shows that it was thereafter used by her.

For a time after their marriage the parties lived in a home owned by respondent in Dallas. The furnishings in question were originally purchased for and placed in that home. There were a number of separations and reconciliations, and the parties eventually moved the furniture to a house owned by petitioner’s mother in Ft. Worth. They lived there until respondent left at the time of their final separation just prior to the suit for divorce. According to petitioner’s testimony respondent told her repeatedly that he was giving her the furniture. After they moved to Ft. Worth, he said, “Mama, now you have a whole beautiful houseful of furniture and this house, if we don’t — whatever happens between us.” On several occasions he told her that the furniture and automobile were hers. Respondent denied that he had given either to petitioner, but we may consider only the evidence which tends to support an implied finding of gift and must disregard any that leads to a contrary conclusion.

The Court of Civil Appeals concluded that the evidence of respondent’s acts and declarations does not support a finding of gift because there is nothing to show delivery of possession and an absolute parting with interest in the subject matter. While the authorities are agreed that actual or constructive delivery to the intended donee is ordinarily essential to an effective gift inter vivos, they disagree as to whether the trier of fact may find a delivery when there is no proof of it other than subsequent declarations of the donor. See Annotation 124 A.L.R. 1391. Texas is one of the jurisdictions holding that statements by the donor indicating that he had given the chattel to the donee are sufficient to raise an issue of fact as to whether there was a delivery. Lord v. New York Life Ins. Co., 95 Tex. 216, 66 S.W. 290, 56 L.R.A. 596, 93 Am.St.Rep. 827. See also Brown v. Fore, Tex.Com.App., 12 S.W.2d 114, 63 A.L.R. 435. Respondent points out that the donor’s declarations in the Lord case were established by the testimony of disinterested witnesses, and at one time the donor had placed the insurance policy and other papers in the hands of one of the witnesses for safekeeping. Although respondent argues to the contrary, we do not think the rule there laid down can be limited to cases where the testimony comes from persons not parties to the controversy or in which some specific act of the donor might be said to constitute a delivery. Petitioner’s testimony is as competent to raise an issue of fact as the same evidence coming from a disinterested witness.

As pointed out in Cox v. Windham, Tex.Civ.App., 10 S.W.2d 136 (wr. ref.), the rules as to delivery are relaxed somewhat where the donor and donee are members of a family living together in the same house. See also 38 C.J.S. Gifts § 23 p. 803. In determining whether there has been a delivery from a husband to his wife, the relation of the parties as well as the nature and situation of the subject matter must be considered. See 41 C.J.S. Husband and Wife § 150 p. 621. Respondent told petitioner he was giving her the Cadillac, and at the same time delivered the vehicle into her possession. This is enough to support a finding that the automobile was given to her. See Collins v. Austin, Tex.Civ.App., 32 S.W.2d 912 (wr. ref.). Similar statements were made with reference to the household furnishings. While such property remained in the home occupied by the parties, it could have been in the possession of respondent or petitioner or both. Respondent repeatedly said, in effect, that the furnishings belonged to petitioner. We think the trial court was entitled to infer from these declarations that respondent had delivered the chattels to petitioner and relinquished all dominion and control over the same. The evidence is sufficient to raise an issue of fact, and .respondent did not contend in the Court of Civil Appeals that the implied finding of gift is contrary to the overwhelming weight and preponderance of the evidence.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

      . All statutes are referred to by the article number under which they appear in Vernon’s Ann.Tex.Civ.Stat.