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    SHEFFIELD DIVISION ARMCO STEEL CORPORATION, Appellant, v. Mrs. Walter O. JONES, Jr., et al., Appellees.
    No. 14080.
    Court of Civil Appeals of Texas. Houston.
    May 2, 1963.
    Two Motions for Rehearing Denied June 20, 1963.

      Jack Binion, James E. Crowther, W. N. Blanton, Jr., Edward Clark, J. Sam Winters, Mary Joe Carroll, Clark, Thomas, Harris, Denius & Winters, Austin, Butler, Binion, Rice & Cook, Houston, of counsel, for appellant Sheffield Division, Armco Steel Corporation and cross-appellee, Robert Mc-Whirter.
    Newton Gresham and Sam W. Cruse, Houston, amici curias (In support of appellant).
    J. Curtiss Brown, W. W. Watkins and W. James Kronzer, Houston, Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, of counsel, for appellees.
   COLEMAN, Justice.

This is a suit for exemplary damages growing out of an industrial accident authorized by Article 16, Sec. 26, of the Texas . Constitution, Vernon’s Ann. St. and Art. 8306, Sec. 5, Vernon’s Annotated Texas Statutes.

Appellees are the survivors of Walter 0. Jones, Jr., who was employed by appellant, Sheffield Division Armco Steel Corporation, as a motor inspector. Jones’ death was caused by burns received while working. Appellant’s liability for the death benefits provided by the Texas Workmen’s Compensation Act was admitted and the prescribed payments have been and are being made.

Trial was to a jury which answered all issues in favor of appellees. Both appellant and its employee McWhirter were found guilty of acts of gross negligence proximately causing the accident. The jury found actual damages in the amount of $25,000.00 and assessed exemplary damages against appellant and McWhirter in the amount of $250,000.00. The trial court granted a motion for judgment non obstante veredicto as to McWhirter and entered judgment against appellant.

Appellant is engaged in the business of making steel. In the manufacturing process coke is required and it is produced in special furnaces by burning coal. Coke gas is drawn off as a by-product of this burning process. This gas is transported by means of large pipes to cooling areas and then to precipitators where some of the coal tars in the gas are removed by means of an electrical charge. The precipitators are located 'in what is known as the by-products area. Three precipitators performed the same function and were numbered 2, 3 and 4. After further procedures the gas is run through precipitator No. 5, which is of a different design. Precipitators 2, 3 and 4 were large tank-like structures approximately 35 feet high. The three were connected by a walkway some 12 to 15 feet above ground level. At the walkway level on the east and west sides of each precipitator were compartments, commonly called “ears,” housing insulators and an “I” beam. Electrodes are suspended inside of the pre-cipitators from a bar which extends from the insulator in the east ear to the insulator in the west ear.

When the precipitators are in operation the coke gas flows in from a large inlet pipe and out through an outlet pipe of the same size. While it is in the precipitators the gas is subjected to a charge of some 73,000 volts of electricity which causes coal tar to be attracted to the electrodes and precipitator walls. The tar drains to the bottom and is removed. The precipitators are arranged in a battery and the gas can flow from one to the other through the outlet pipe. The inlet and outlet pipes are connected to the main body of the precipitators. Clean gas was piped into each of the ears for the purpose of maintaining a pressure designed to keep as much of the coke gas out of the ears as practical in order to minimize the coating of the ears and the insulators with coal tar and carbon. Carbon deposits build up in the ears and they were regularly cleaned by the motor inspectors. This cleaning process involved opening a small door accessible from the walkway, chipping the deposits loose, and then cleaning with rags saturated with highly inflammable light oil. On occasion the insulators would break and they were removed and replaced through the small door.

On the day of the accident Jones and Phillips, both experienced motor inspectors, undertook to clean the ears of precipitator No. 2. At about 8 o’clock in the morning Jones informed Bobby Walker, the byproducts operator, of his intention. It was the duty of the by-products operator to have the inlet and outlet valves on the coke gas lines closed, to close the clean gas line, and to turn on the steam to purge all gas from the precipitator to be cleaned. The electricity had already been turned off by the motor inspectors. About 9 or 9:30 Phillips and Jones notified Walker to turn off the steam and then checked the ears, finding the insulator in the west ear broken and both ears dirty. They noticed the odor of gas and reported the fact to Walker, who turned the steam back on and ordered laborers to check the valves.

They then went to the work shop for their tools and Jones reported the broken insulator to McWhirter and told him they had smelled gas and had asked for a re-steaming. McWhirter took no action on the report other than ordering a new insulator. They returned to the precipitator and spent an hour and ten or fifteen minutes scraping the carbon from the interior of the east ear and cleaning the insulator with the light oil. The carbon scrapings, damp from the steaming, were placed in an open bucket. When the work on the east ear was finished,, they closed the door, took all of their equipment from the walkway and disposed of the carpon scrapings. They then went to lunch without requesting that the precipitator be steamed.

The motor inspectors returned to work at 1 o’clock and waited ten or fifteen minutes for the new insulator. When it arrived they spent fifteen or twenty minutes cleaning the west ear before they began installing the new insulator. The insulator weighed fifty or sixty pounds and some difficulty was always experienced in inserting it through the small door. Phillips was on his knees holding the insulator inside the door and Jones was standing behind him guiding it into position when the explosion happened. Jones and Phillips were both burned and jumped or fell from the walkway to the ground. Another employee, who had come out onto the walkway, was also burned. Phillips survived his injuries and testified at the trial.

Appellant contends that there was no evidence to support the findings of gross negligence or the issues on proximate cause pertaining to gross negligence. Appellant also contends that all of such findings were so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.

The jury found that the accident in question resulted from an explosion of gas in precipitator No. 2 and that Jones died as a result of the explosion. They found that Robert McWhirter, J. Bryan Lawson, Elmer Cooley, J. T. Holt, and Charles Fox were managerial employees of appellant. The term “managerial employees” was defined as employees of a corporation who have charge of the business of the corporation ■ or of the particular department or. departments of the business involved in the accident in question. Appellant has no point in his brief attacking these findings. . - .-

The jury also found that the following acts were “gross negligence” and proximate causes:

(1) That the valves of Precipitator No. 2 were clogged with tar (Special Issue No. 4) in sufficient amounts to render said valves defective in the use to which they were being put (Special Issue No. 5);

(2) That McWhirter knew the valves were in such defective condition (Special Issue No. 6) and he maintained the valves in that condition (Special Issue No. 7);

(3) That J. Bryan Lawson knew of the defective condition of the valves (Special Issue No. 11) and maintained the valves in that condition (Special Issue No. 12) ;

(4) That appellant failed to provide adequate valves for preventing gas from entering Precipitator No. 2 while work was being performed thereon (Special Issue No. 16) and that Elmer Cooley (Special Issue No. 18) and J. T. Holt (Special Issue No. 20) and Charles Fox knew of such inadequacy (Special Issue No. 22);

(5) That there were inadequate venting facilities on Precipitator No. 2 (Special Issue No. 25) and that J. T. Holt knew of such inadequacies (Special Issue No. 26) ;

(6) That the insulators on Precipitator No. 2 were so located as to subject repairing motor inspectors to an unreasonable risk (Special Issue No. 29) and that this fact was known to Elmer Cooley (Special Issue No. 30).

Contributory negligence issues, “Assumption of risk” issues, “fellow servant” issues .and an unavoidable accident issue, were submitted to the jury and were answered adversely to appellant.

It is no longer necessary to cite authority for the proposition that an appellate court when considering a “no evidence” point must consider only the testimony which supports the verdict of the jury. In making the following statement of facts we bear this ¡rule in mind. The coke gas contained coal tar which was a soft, sticky substance. This gas was propelled by a blower system through 24 inch pipes to the precipitators. Tongue-and-groove type valves were installed which were used to prevent the entry of gas into a precipitator while it was being cleaned. When precipi-tator No. 2 was first installed, the valves were easy to close, but they had become very difficult to close long before the explosion. No objection was made to testimony that the difficulty in closing the valves was caused by tar in the grooves. When a complaint of gas odors was made, the valves were checked and resteaming was ordered, but the odor of gas was always present in the precipitators and in the byproducts area generally. There was no direct evidence that any of the managerial employees knew that the valves were defective because of tar or that the presence of tar in the valves was specifically brought to their attention. There was testimony that when the valves became hard to close they were cleaned. Jones complained to McWhirter at safety meetings that the valves on the precipitators were “leaky.” The fact that gas and the odor of gas were present in the precipitators after the valves were closed and steaming completed was reported to various employees of the company. Phillips had reported smelling gas in the precipitator to McWhirter eight months to a year prior to the explosion and to Cooley six weeks to three months before that accident and had suggested to him that a different type valve might be better. Gas masks were provided for use of the motor inspectors because some developed nausea and headaches after working in the precipi-tators.

On the morning before the explosion Phillips called Walker over and showed him gas leaking out of the door of the pre-cipitator. Walker checked the valves and told Phillips and Jones that they were closed and, at their request, resteamed the precipitator, but the odor of gas was present when they began work. When the door to the west ear was opened after lunch the odor of gas appeared to be about the same as in the morning.

In Missouri Pacific Ry. Co. v. Shuford, 72 Tex. 165, 10 S.W. 408, the court said:

“Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the rights or welfare of the person or persons to be affected by it.”

The court, in Texas Pacific Coal & Oil Co. v. Robertson, 125 Tex. 4, 79 S.W. 2d 830, 98 A.L.R. 262, pointed out that mere indifference is not enough to warrant recovery of exemplary damages. There must be conscious indifference to the rights or welfare of the person or persons who may be affected by the act or omission.

In Bennett v. Howard, 141 Tex.Sup. 101, 170 S.W.2d 709, the Court said:

“In order for respondents to recover exemplary damages in this case, it was necessary for them to show affirmatively that the petitioners, acting through their superintendent, Smith, disclosed an ‘entire want of care’ or a ‘conscious indifference’ to the rights of those working under Smith at the time of the explosion.”

Appellant knew that after the valves were closed and the precipitators had been steamed gas and the odor of gas usually remained in the ears and that the valves were leaky. Appellant knew that the carbon deposits in the ears would smoulder and become red hot when exposed to air. It knew that the door to the ear remained open during the cleaning process. Appellant had engineers and chemists in its employ and the jury might well have reasoned that it knew the explosive qualities of the gas under such conditions from the circumstance that “no smoking” signs were posted in the by-products area and that the motor inspectors, while they had received no specific directions or warning concerning the danger of explosion, were trained to keep the doors to the precipitators closed at all times they were not required to be open by work in progress. There was also evidence that “burning and welding” took place in the area; such operations were carried out under “strenuous precautions,” and that those conducting such operations were “very particular” and were “very careful” with an open flame in the byproducts area. A further circumstance for consideration by the jury was the fact that steam was customarily applied to the pre-cipitators at all times while a precipitator was “off the line” unless work was in progress. There was evidence that it was the responsibility of the by-products operator to supervise such safety precautions as were made other than turning off the electricity, but there was no evidence that the company had issued any specific .rules or regulations designed to minimize the danger of explosion in this operation, except with reference to keeping the precipitator’s doors closed.

The steam was turned off the precipita-tors when the work began in the morning and was not reapplied at the lunch hour. The jury might well have reasoned that the by-products operator neglected his duty in this respect since a permissible inference from the evidence is that the motor inspectors had a regular lunch hour which would or should have been known to the by-products operator.

There was evidence from which the jury could have concluded that the motor inspectors were lulled into a false sense of security because on previous occasions, when an odor remained after every effort had been made to tighten the valves, managerial employees stated that the odor resulted from steaming the tar in the pre-cipitators.

John Melton, a millwright, testified that all gate valves leak after they have been on gas awhile, and that the carbon deposits will start burning with a visible flame “shortly” if left exposed to the air. Elmer Cooley, the by-products foreman, testified that on the day of the explosion “a pretty good” wind was blowing from the south into the “mouth” of the precipitator or ear. He further testified that if air got “mixed up” with the accumulation of carbon in the ear, “you might get a spark,” and that if the ear is blanketed with the carbon deposits and air is admitted, there is a potential blanket of fire in the ear and if, under such conditions, gas is also present there would be a dangerous situation which should not be permitted.

A conclusion that working conditions in the precipitators was dangerous is inescapable. The factors responsible for the danger were known to managerial employees and the danger of an explosion was recognized by appellant. The conditions which combined to cause the explosion had existed for a period of years. Appellant could have foreseen that it was reasonably probable that an explosion would eventually occur unless positive measures were taken to prevent the entry of gas into the ears while they were being cleaned, or else positive measures were taken to prevent the ignition of the carbon deposits. The issues on proximate cause were properly supported by competent evidence, and are not contrary to the weight and preponderance of the evidence.

While it might be argued that appellant was not guilty of an entire want of care in that the carbon deposits were dampened by steam before the cleaning process began, there was evidence that this procedure was primarily for the purpose of purging gas from the machine. There was no evidence that the procedure was directed by appellant, nor was there evidence as to the length of time required for the deposit to dry out. No rules were in effect requiring resteaming at such regular intervals as would be necessary to prevent ignition of the deposits. There was evidence to support a conclusion of the jury that appellant was consciously indifferent to the welfare of those assigned the task of cleaning the pre-cipitators, and of other employees who might be in that area. A conclusion of entire want of care might properly be drawn from the fact that while the general conditions which might support an explosion and fire were known to appellant in the event a sufficient quantity of gas was permitted to accumulate in the precipitator being cleaned, no investigation or precautions against an explosion were taken on this occasion when it was reported that gas was leaking into the ear. Proof of “entire want of care” warrants an inference of “conscious indifference” to the rights, safety and welfare of others, but such “conscious indifference” may appear from the evidence without proof of entire want of care. Fancher v. Cadwell, 159 Tex.Sup. 8, 314 S.W.2d 820; Bernal v. Seitt, 158 Tex.Sup. 521, 313 S.W.2d 520; Burt v. Lochausen, 151 Tex.Sup. 289, 249 S.W.2d 194; Bowman v. Puckett, 144 Tex.Sup. 125, 188 S.W.2d 571.

In Morton Salt Co. v. Wells, 123 Tex. Sup. 151, 70 S.W.2d 409, the Court specifically approved this language of the Court of Tex.Civ.App. in the same case (35 S.W.2d 454):

“Furthermore, the cumulative effect of the findings of the jury is that defendant was guilty of gross negligence in failing to discharge the nondele-gable duty imposed by law upon it as master to furnish Wells, its servant, with safe, suitable appliances and in-strumentalities for the work in hand. This duty was a continuing one and included that of adequate inspection, therefore defendant was liable for the negligence of one to whom the performance of such duty was entrusted.”

The Supreme Court indicated that the facts in the Morton Salt case warranted the finding of “entire want of care” when it said:

“The plain facts are that for years the company provided for the use of its employees a dangerous machine; and although its infirmities increased with use and age, efforts to render it safe, if any were made, were but of the slightest character.”

The facts in this case seem much stronger in support of a finding of gross negligence than were the facts in the Morton Salt case. While many of the matters of fact recited in this opinion were controverted, the findings of the jury on gross negligence are fully supported by credible evidence and, therefore, are not so contrary to the weight and preponderance of the evidence as to be clearly wrong and unjust.

Appellant also urges that the trial court erred in failing to hold as a matter of law that Jones voluntarily assumed the known risk of working on precipitator No. 2. In Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60, the Supreme Court said:

“A plaintiff’s right to recover cannot be defeated on the theory that he assumed the risk of injury under the doctrine of volenti non fit injuria unless it appears that with full knowledge of the nature and extent of the danger involved he put himself in the way of a particular risk involved as the result of an intelligent choice.”

Appellant has not established as a matter of law that Jones had such a knowledge of the nature and extent of the danger of explosion and fire by reason of the presence of coke gas in the ear as to fully appreciate the risks involved in his work. He cannot be held as a matter of law to have voluntarily assumed such risks. Peck v. Peck, 99 Tex. 10, 87 S.W. 248; McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391.

Appellant asserts also that contributory negligence was established as a matter of law and several possible acts of negligence on the part of Jones are suggested. While there is evidence of such negligence, we are unable to agree that it is established as a matter of law.

The brief of Amicus Curiae suggests that the cause of the explosion was unexplained and that, therefore, there was no conscious indifference to a foreseeable cause of the event. The only reasonable explanation of the explosion developed by the evidence was that discussed previously in this opinion. It was suggested that the explosion might have been caused by the ignition of the light cleaning oil caused by a cigarette or the burning of carbon scrapings removed from the ear. However there was direct testimony by Phillips that the first explosion came from within the ear and that the bucket in which carbon scrapings were deposited was on the opposite side of the platform from the bucket of oil. He also testified that no one was smoking on the platform. Two witnesses saw coke gas flowing from the door of the ear when it was first opened. The clean gas line had been disconnected and the ear steamed before the work began on the west ear. There was testimony that all of the valves were defective and leaked gas. Accepting the testimony that the steaming procedure eliminated the gas present in the precipitator before work began, the only reasonable explanation for the presence of gas in the west ear at the time of the explosion is that the valves continued to leak gas during the work day. The combination of direct and circumstantial evidence was sufficient to establish the cause of the explosion.

Appellant contends that the trial court erred in informing the jury of the legal effect of its findings to the special issues and in permitting counsel for appellees to so inform the jury during voir dire examination and closing argument.

In their Fourth Amended Original Petition appellees alleged:

“Your Plaintiffs have sustained actual legal damages in the amount of thirty five dollars ($35.00) per week for six and 12/i3 (S^/is) years. This suit is maintained because of gross negligence on the part of your defendants, and as a result thereof your plaintiffs are entitled to recover exemplary damages, and here now sue for the sum of two hundred fifty thousand dollars ($250,000.00) exemplary damages, which bears a reasonable relationship to the actual damages they have suffered.”

Appellant alleged in its Answer and proved out of the hearing of the jury that appellant was a subscriber to the Workmen’s Compensation Act, and that appel-lees had been awarded workmen’s compensation benefits, which award had been accepted by appellant’s insurer. Appellant presented a motion in limine to the trial court requesting that counsel for ap-pellees be instructed “ . . . not to mention, either directly or indirectly, or to refer to, or in any manner intimate to the jury the effect of their answers to the special issues regarding actual damages and that such actual damages are not recoverable by plaintiffs . . . ” This motion was sustained by the trial court, who instructed counsel not to mention the matters contained in the motion in limine in the presence of the jury, or on voir dire examination of the jury, without first taking the matter up with the court out of the presence of the jury.

Thereafter one of appellees’ counsel on voir dire examination stated to the jury panel:

“Now, ladies and gentlemen, Walter O. Jones, at the time of his death, was about thirty eight years of age, and there will be proof on what he was earning. My recollection is that he made about seven thousand ($7,000.00) dollars or so a year, and he contributed to the total support of his wife and four children, contributed to their support and was of benefit to them in advising them and taking care of them other than by just furnishing them a living.
“And it is our position that those damages have been swept away from these plaintiffs as a result of the gross negligence acts of the defendants; but, we are bringing this suit to recover exemplary damages in the amount of two hundred fifty thousand dollars. You will be asked to find the award, you will be asked to find the amount of exemplary damages to which these plaintiffs are entitled for which we sued, and we will urge you to bring in an award of two hundred fifty thousand dollars.
“Neither Mr. Brown nor I were raised in any manner other than to-know that is a lot of money. We say we have a lot of damages here.
“You will also be asked to find what the actual damages were that have been suffered by Mrs. Jones and her children.. We are suing for the exemplary damages in the amount of two hundred and fifty thousand dollars.”

No specific objection was made to this: statement.

Appellant’s attorney in his voir dire examination stated: “It has already been indicated by the plaintiffs’ attorney, Mr. Watkins, the plaintiffs are seeking damages of both actual damages and exemplary damages.” At this point he was interrupted' by Mr. Watkins, who stated: “We object,, we didn’t indicate we are seeking to recover actual damages. * * *. We told' the jury we are asking for exemplary damages.” At which point the court instructed! the jury panel as follows:

“The plaintiffs in this case are seeking to recover exemplary damages for the wife and children of the deceased. There will be evidence as to the actual damages and you will be called upon in all reasonable probability to determine what the actual damages were, but the plaintiff is not seeking to recover actual damages.”

Appellant, thereupon, moved for a mistrial on the grounds that counsel for plaintiffs had repeatedly informed the jury that plaintiffs were suing only for exemplary-damages and are not interested in and', will not receive the actual damage award’ to be sought by plaintiffs from the jury in. response to the special issues submitted to it by the court, and that such conduct, as well as the instruction to the panel by the court informed the jury of the effect of their answers to the special issues submitted to the jury on actual damages, contrary to law, and that the errors cannot be cured by any instruction of the court. This motion was overruled by the court.

Thereafter, during the argument to the jury the counsel for the plaintiffs made it plain to the jury that they were suing for exemplary damages and did not particularly care what the answer to the actual damage issue was. In his argument counsel for plaintiffs stated that the first year when Jones went to work for Sheffield he made thirty six hundred and twenty dollars and at the time of his death he was making eight hundred and twenty dollars a month. Then followed the plea:

“So, what would be fair and reasonable under those circumstances to award? We say it should be the full two hundred and fifty thousand Dollars that we sued for, * * *. On this other damage issue, whatever number it was, on that Mr. Brown suggested 80. You can make it less than that as far as I am concerned. You will probably want to write 80, or maybe more, I don’t particularly care. I want to say this, though, don’t subtract one single penny of that other damage issue from the exemplary issue, on which we sued * *

No objection was made to this argument, it being the contention of appellant that in view of the instruction given to the jury panel by the court, an objection would have been futile and would have further emphasized appellees’ position.

Section 26 of Article 16, Vernon’s Texas Constitution, provides:

“Every person, corporation, or company, that may commit a homicide, through wilful act, or omission, or gross neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide.”

Section 5 of Article 8306, Vernon’s Annotated Texas Statutes, provides:

“Nothing in this law shall be taken or held to prohibit the recovery of exemplary damages by the surviving husband, wife, heirs of his or her body, or such of them as there may be of any deceased employé whose death is occasioned by homicide from the wilful act or omission or gross negligence of any person, firm or corporation from the employer of such employé at the time of the injury causing the death of the latter. In any suit so brought for exemplary damages the trial shall be de novo, and no presumption shall exist that any award, ruling or finding of the Industrial Accident Board was correct. In any such suit, such award, ruling or finding shall neither be pleaded nor offered in evidence.”

This provision was inserted in the Compensation Act to remove doubt as to rights of beneficiaries of the act to exemplary damages for gross negligence causing employee’s death under the quoted Constitutional provision. Morton Salt Co. v. Wells, Tex.Civ.App., 35 S.W.2d 454.

An employee’s common law right of action against his employer for exemplary damages sounding in gross negligence was abrogated by the Workmen’s Compensation Act in all cases where the Compensation Act is applicable. Jones v. Jeffreys, Tex.Civ.App., 244 S.W.2d 924, error ref.

In King v. Keystone-Fleming Transport, Tex.Civ.App., 299 S.W.2d 747, the court said :

“We think it is so well established as the law in Texas that no recovery of exemplary damages can be had unless the plaintiff sustained actual loss or injury that no citations of authorities are necessary. The above statute has reference to a plaintiff pleading and offering proof of an award ruling or finding to establish actual loss or injury and in that manner relieving the plaintiff of showing actual loss or injury. Where one has recovered for injury or death under the Workmen’s Compensation Act that fact cannot be pleaded or offered in evidence to establish actual loss or injury but in a suit for exemplary damages the trial shall be de novo and the plaintiff must plead and prove actual loss or injury before he can recover actual damages.
“Where the defendant is protected under the Workmen’s Compensation Act from actual loss or injury, the plaintiff cannot again recover for the actual loss or injury in his suit for exemplary damages; but may recover exemplary damages. Unless the defendant be permitted to show in some manner that he should not be compelled to pay for the actual loss or injury he would be compelled to pay the judgment for the actual loss or injury although he was protected under the Workmen’s Compensation Act, and the plaintiff would be in the position of collecting twice for the actual loss or injury. We think the proper way of showing the plaintiff had recovered or was entitled to recover, if he was injured, under the Workmen’s Compensation Act, and that the defendant was not liable for actual loss or injury because he was covered under the Workmen’s Compensation Act is by pleading such fact and proving thereof to the court out of the hearing of the jury as was done in this case. We overrule appellants’ first point of error. It is stated in the case of Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, at page 409, as follows:
“ ‘ * ⅜ * The rule in Texas is that exemplary damages cannot be recovered unless the plaintiff is shown to have sustained actual loss or injury. There can be no recovery of exemplary damages in the absence of a recovery of actual damage. A verdict of nominal actual damages is not sufficient. 13 Texas Jurisprudence, pp. 240, 241, § 132, and cases cited in the notes. In this case actual damages are not recoverable because the plaintiff in error carried workmen’s compensation insurance. However, we do not believe that the compensation act changes the rule. We are of the opinion that in order to recover exemplary damages the plaintiff must show himself entitled to recover actual damages, and which he would recover but for the compensation act. Moreover, the rule in this state is that the amount of exemplary damages allowed must be reasonably proportioned to the actual damages found. 13 Texas Jurisprudence, p. 248, para. 138, and cases cited in the notes. It follows from the rules stated above that in this case the jury should have been asked to find whether or not the defendants in error sustained actual damages by reason of the death of Russell, and, if so, the amount thereof.’ ’’

We are of the opinion that cases such as this should be tried in all respects as are other cases for actual and exemplary damages, except that the defendant should be permitted to plead and prove his defense under the Workmen’s Compensation Act. Neither such pleadings nor the proof produced to support them should be made known to the jury by innuendo or otherwise. Exemplary damages are authorized in proper cases as punishment for a wrongdoer and they cannot properly be awarded as additional compensatory damages. It appears that appellees have successfully persuaded the jury by their pleadings, voir dire examination, and jury argument, as well as by the evidence introduced in the case, to award them compensatory damages in the guise of exemplary damages. We couldn’t, however, condemn the award on that ground alone since in every case the amount of exemplary damages allowed must bear a reasonable relationship to the amount of actual damages sustained.

The trial court instructed the jury panel that the plaintiffs were not seeking to recover actual damages. The plaintiffs were seeking a jury finding as to the amount of actual damages sustained by the plaintiffs just as they were seeking a finding as to the amount of exemplary damages that should be assessed against appellant as punishment. The effect of these answers was a matter of concern for the court, not the jury. The jury is not concerned with the particular judgment desired by the plaintiff. The suit necessarily was for both actual and exemplary damages. While the lawyers and the court knew that, under the undisputed facts as to the payment of Workmen’s Compensation, the law would not permit recovery of actual damages, this knowledge did not change the nature of the suit. The rights of plaintiffs in suits arising under the Constitutional provision involved here should be determined under the same rules of procedure whether the amount of actual damages they receive be determined by rules of common law or by the terms of the Workmen’s Compensation Act. The legislative intent in that respect is shown by that part of Article 8306, Sec. 5, providing that the trial of a suit for exemplary damages authorized by the Act should be de novo and forbidding in such a suit pleading or offering in evidence any award, ruling or finding of the Industrial Accident Board.

The jury might well have concluded from the pleading of appellees and the remarks of counsel for appellees on voir dire examination of the jury panel that they were not greatly concerned about the amount of actual damages found by the jury. However we cannot say that men of ordinary intelligence without special training in law would be presumed to know the effect of their answers to the special issues submitted in this case. In Ex parte Fisher, 146 Tex. 328, 206 S.W.2d 1000, aff’d Fisher v. Pace, 336 U.S. 155, 69 S.Ct. 425, 93 L.Ed. 569, the Supreme Court said:

“It is obvious that the relator was attempting to inform, and did inform, the jury what the law is with reference to the rights of his client, which was calculated to inform them of the legal effect and result of their answers to the issues submitted. That such conduct and practice is to be condemned under our law of submitting cases upon special issues cannot be doubted, unless unlike the circumstances in the court below, the issues are such that men of ordinary intelligence would be presumed to know the legal effect of their answers.”

This Court has previously held that it is error and an abuse of the trial court’s discretion for the court to permit counsel to advise the jury of the legal consequences of any of the jury’s findings. Sisk v. Glens Falls Indemnity Company, Tex.Civ.App., 310 S.W.2d 118, 66 A.L.R.2d 1, writ ref., n. r. e.; Robinson v. Lovell, Tex.Civ.App., 238 S.W.2d 294, writ ref., n. r. e. It is likewise error for the trial court to so advise the jury directly. While the procedure may be artificial, the law, under the circumstances of this case, requires that the plaintiff seek actual damages by his suit, and the jury may not be instructed to the contrary.

Appellant has also complained that the answer returned by the jury to the issue submitted on actual damages was not supported by the pleadings. There was pleading of actual damage amounting to $12,600.00. While the jury answered the issue in a greater amount, since no actual damages were awarded by the judgment, the error would not require reversal.

The answer becomes important, however, in determining whether or not the amount of exemplary damages bears a reasonable relationship to the actual damages found by the jury. Awards under the Workmen’s Compensation Act have no necessary relationship to the amount of actual damage sustained. If an exception had been urged to the petition no doubt it would have been sustained by the trial court for the reason that the pleading was calculated to inform the jury that workmen’s compensation insurance was, in some manner, involved in the suit. Since by their pleadings appellees had sought actual damages in the sum of $12,600.00, counsel were in error in asking the jury to find that actual damages in the sum of $80,000.00 had been sustained. The trial court has ample authority to prevent such erroneous argument even though no objection is made. Rule 269(g), T.R. C.P. In any event it is the opinion of this Court that in the event the jury finds actual damages in a sum in excess of the amount stated in the pleadings, the amount of the exemplary damages awarded by the judgment of the court must bear a reasonable relationship to the amount of actual damage as limited by the pleading.

We have carefully considered appellant’s Points Nos. 10 and 11 and find that they do not present error.

Appellees have presented a counter-point to the effect that the trial court erred in rendering judgment notwithstanding the verdict in favor of Robert Mc-Whirter. McWhirter was a line foreman in the maintenance department. He was found guilty of gross negligence in maintaining the inlet and outlet valves in a defective condition caused by tar deposits. McWhirter is not charged with the knowledge possessed by other employees of appellant. There is evidence from which the jury could have concluded that McWhirter knew that the valves had not operated properly on many occasions in the past and that gas was present in the precipitator on the morning of the accident after the pre-cipitator had been steamed the first time and that he took no action. Maintaining the valves in a defective condition might well be negligence, but, in the absence of proof of his knowledge of the other conditions and circumstances which, together with leaking gas, created an extremely dangerous situation which in reasonable probability would result in serious injury to the workers under his supervision, it would not be gross negligence under the facts of this case. The court properly rendered judgment non obstante veredicto for Mc-Whirter.

The judgment of the trial court is reversed and remanded.


source: Caselaw Access Project

author: EAGER, Presiding Judge.

license: Public Domain

text:
    CITY OF OLIVETTE, a Municipal Corporation, Respondent, v. Walter GRAELER et al., Defendant-Appellants, Industrial Properties, Inc. et al., Intervenor-Appellants.
    No. 49385.
    Supreme Court of Missouri, Division No. 2.
    June 4, 1963.
    Motion for Rehearing or for Transfer to Court En Banc Denied July 8, 1963.
    Claude W. McElwee, St. Louis, William E. Gallagher, St. Louis County Counselor, Richard E. Crowe, Asst. County Counselor, Lewis, Rice, Tucker, Allen & Chubb and James A. Singer, J. L. Pierson and Lawrence A. Waldman, Clayton, for certain appellants.
    Fordyce, Mayne, Hartman, Renard & Stribling and Thomas Rowe Schwarz, St. Louis, for Monsanto Chemical Co. and General Electric Co.
    Carroll J. Donohue, Shulamith Simon, Husch, Eppenberger, Donohue, Elson & Jones, St. Louis, for plaintiff-respondent, City of Olivette.
   EAGER, Presiding Judge.

This is a declaratory judgment action seeking approval of a proposed annexation under the “Sawyers Act” enacted in 19S3, now § 71.015, RSMo 1959, V.A.M.S. Various defenses were raised in the answers. It will not be necessary to review the pleadings, for such parts as are material to any issue will be noted later. The suit was filed on February 13, 1957. Industrial Properties, Inc., the owner of considerable property in the area proposed for annexation, was permitted to intervene. The parties originally named as defendants were chosen as representatives of the class of inhabitants of that area and there has been no objection whatever to the validity of this representation. After the first trial, motions of the defendants and intervenor for a new trial were sustained and the petition was dismissed; this was done upon the theory that the areas of St. Louis County lying outside of cities, towns and villages were not “unincorporated area” within the meaning of § 71.015, supra, and thus were not subject to annexation under that Act. Plaintiff appealed. The judgment dismissing the petition was reversed, but the order granting a new trial was affirmed and the case was remanded for trial on the merits. Our opinion appears at Mo., 338 S.W.2d 827.

Following the remand, St. Louis County and James H. J. McNary, County Supervisor, intervened as parties defendant by leave and filed answer. They oppose the-annexation. Thereafter, General Electric-Company and Monsanto Chemical Company, owners of industrial property in the area, were granted leave to intervene “upon adoption by said intervenors of the pleading of Walter Graeler.” The second', trial began on March 20, 1961, and the evidence was concluded on July 27, 1961. During that trial other corporations owning industrial property in the proposed area intervened and filed a joint answer by leave of court, as shown in the caption of this opinion. On December 18, 1961, the-court entered its decree authorizing the annexation; this will be referred to in more detail later. The “defendants” filed a motion for a new trial and when this was overruled “defendants and intervenor defendants” appealed. It was stipulated at the second trial that the entire transcript of the first trial should be incorporated into-the record. Both records are voluminous, and, so far as the first trial is concerned,, the facts are sufficiently shown in our opinion at Mo., 338 S.W.2d 827. Jurisdiction was accepted here on the first appeal, on-transfer from the St. Louis Court of Appeals (329 S.W.2d 275), upon the ground that a construction of § 18 of Art. VI of our 1945 Constitution was involved. Upon the present appeal the County is a party and this gives us jurisdiction under Art. V, § 3 of the Constitution, V.A.M.S. Certain constitutional questions are also urged here;, these will be referred to later.

In general, all original defendants and all' Intervenor-Defendants- have asserted at every stage: that the proposed annexation, is unreasonable and arbitrary; that it is. not necessary to the proper development of Olivette; that it is not in the best interest of St. Louis County as a community; that it is unreasonable as to the inhabitants and owners in the proposed area; that Olivette is not in position to furnish services to the •area comparable to those which the County can furnish; that the inhabitants and owners in .the “area” would receive no benefits. hut, on the contrary, an additional burden of taxation. Plaintiff, in its pleadings, evidence, briefs and argument, has strenuously asserted (affirmatively) the converse of all such propositions.

Much of the second transcript consists of repetition of evidence from the first one. We adopt here the facts recited at 338 S.W. 2d pages 830-832, inclusive, concerning the statistical, political and geographic status of Olivette and of the proposed “area” as of the time of the first trial in December 1957. The area of Olivette has not been enlarged since 1957; its population in 1960 was 8,257. The area proposed for annexation (which we shall usually describe as the “area”) lies west of the north half of Olivette; an unincorporated area known as "Elmwood” lies along part of Olivette’s north side. The record indicates that the latter is regarded as rather “run down” and not highly desirable, although Olivette did in the past annex a portion of it, and now proposes for that a land clearance project, federally financed.

The area proposed for annexation contains approximately 303 acres. Its boundaries (without regard to streets and roads) are generally: The City of Olivette on the east, perhaps for a mile; the City of Creve Coeur on the south and along a short portion of its west boundary; an unincorporated area along the remainder of its west boundary, and the Rock Island Railroad on the north, across which lies the City of Overland, with some industrial development nearby. In the north part of .the present proposed “area” an industrial subdivision of nearly fifty acres was established a few years ago. This is zoned by the County as industrial. In that subdivision there are now warehouses, general sales offices and similar bases of operation, largely of nationally known corporations. The lots are of relatively large size. Just south of the eastern half of that subdivision, another tract of forty acres in the “area” has also been zoned industrial; several lots have been sold and several industrial buildings had been erected or were in the course of erection at the time of trial. These are all substantial buildings, and this land was sold during 1960 and 1961 at prices ranging from about $22,-000 to $24,500 an acre. The original forty-acre tract had been bought in 1958 for something over $5,000 an acre. Both of these tracts (i. e., the subdivision and the forty acres) were selected for industrial development by the purchaser because of their proximity to good transportation by highway, railroad and air, as well as for the general suitability of the land area. Lindbergh Road, or U. S. Highway No. 66, runs along the entire west side of the area; the C. R. I. & P. Railroad skirts the entire north side; Warson Road, a county road, runs along the east side, 150 feet west of the actual boundary. Much of the remaining land in the “area” lies in tracts said to be agricultural; but it seems clear that all of the land in the “area” has clearly grown out of, or has at least been priced out of, the class of agricultural land; a few families continue to reside on it out of sentiment or for convenience, and a few new houses have been built along the very eastern edge. The evidence fairly shows that substantially the whole of the 303 acres is well suited for industrial development. Something more than half of it was still zoned by the County for single-family residences at the time of the second trial; there was some commercial development and a small zoning for multi-family housing. The foregoing, it may be assumed, merely showed the status of the area pending adoption of the new County Land-Use Plan, referred to later. In the northwest corner of the area a sort of finger reaches out between Lindbergh Boulevard and the Rock Island tracks. There is little development there, — a few houses and two or three commercial buildings, apparently of no great consequence. It is zoned industrial.

The roads or streets in or near the “area” are: Warson Road, already noted; Olive Street Road, a state highway (which also runs east and west through the center of Olivette) on the south, but 200 feet inside the north line of the City of Creve Coeur; Lindbergh Boulevard, along the entire west boundary; and Baur Boulevard, a private road established by the industrial developer, running generally east and west through the original industrial subdivision; this, it is said, is now in the process of being dedicated as a public street. A strip of ISO feet of the unincorporated area lies between War-son Road and Olivette. The assessed valuation of real property in the “area” is $1,-529,250.

The industrial development in this area has ample water from two twelve-inch mains running along Warson Road, presumably operated by the St. Louis County Water Company. The water is or could be made readily available to the rest of the “area.” The industrial area has ample and approved sewage facilities because its then owner contributed substantially with others to run a large Metropolitan Sewer District line from the northwest corner of Olivette to the area. This line runs partly inside Olivette’s north line and partly outside, but it now serves an area in the north part of Olivette. Thus, sewage facilities could likewise be extended in the “area” at normal expense. This sewer line was not paid for, in whole or in part, by the City of Olivette, but various private owners contributed the cost. The area owners also ran storm sewers along Warson Road. The area receives power and light from the Union Electric Company. Little policing of the area has ever been required, but the County police cars patrol the area and have, upon occasions, reported lights left on or windows open; they have also come very promptly when ambulance calls or fire calls were made, and whenever the automatic protection signals in the industrial buildings have failed to function. The industrial part of the area is in the West Overland Fire Protection District, and is entitled to its services. A large part, probably a majority, of the industrial buildings are equipped with sprinkler systems. The firehouse of that fire district is said to be approximately three-quarters of a mile from the corner of Warson and Baur, according to one witness; further, according to another. The employees of that district are partly paid and partly volunteer, but there are men on duty at all times, with at least three men at the station at night;, the district owns two pumper trucks and adequate hose lines and auxiliary equipment. All the men take regular training in fire fighting. It has co-operative contracts with the fire departments of several other nearby communities. Some of the residents in the more sparsely settled parts-of the “area” buy “fire tags” from the Creve Coeur Fire Department entitling them to fire protection. The sanitary sewer plans in the area were all reviewed by the County Health Department (primarily as agent of the State Health Department). The County maintains Warson Road; it is said to be somewhat inadequate for the traffic now using it. The County Department of Public Works has reviewed all of the plans for industrial buildings (and presumably others) in the area, has issued building permits and has, through its appropriate divisions, made many inspections of each building, as is its custom, during the course of construction. It approved the plat of the original industrial subdivision. The County adopted a comprehensive zoning plan in 1946, but since 1956-7 it has been working on a new overall and county-wide Land-Use Plan with the assistance of Har-land Bartholomew and Associates. This, of course, has been necessitated by the enormous growth of population in the County; it was stated that its total population in 1961 was estimated at 703,000, with 250,000 people living in the unincorporated areas. And, as stated in evidence by the Planning Director of the County, — “areas that have previously been laid out as residential areas must now, of necessity, be changed to industrial or commercial areas in order to give us a reasonable tax base throughout St. Louis County.” A proposed county-wide Land-Use'Plan had been completed to the stage of public hearings, but was not considered on its merits by the trial court because it had not then been adopted by the County Council. This plan, when and if approved, would be followed by a new zoning map and ordinance. However, Mr. Wagner, the Planning Director, testified, without objection, that the entire area proposed here for annexation should, in his opinion, be zoned as industrial; also, that much industrial growth first occurring in unincorporated areas has been taken into municipalities, and that in this particular part of St. Louis County the land suitable for industrial development is very limited. Mr. Wagner also testified, without objection, that in the new Land-Use Plan all of this “area” was designated as an industrial area, except for a very limited commercial space in the south part along Olive Street Road. Industry had come into this particular area within approximately five years prior to 1961. Very few of the persons employed in industry in the “area” live in Olivette; at one plant employing ninety persons, none lived in Olivette.

Much time and space were consumed at both trials in showing the functions, capacities and personnel of the various County departments. We shall not repeat or digest any great part of that evidence. It will suffice to note these facts. The County has an adequate, competent and up-to-date Department of Police with 117 commissioned officers, 29 civilian employees and all necessary equipment, though limited somewhat in headquarters space, and with an expressed desire (and probable need) for more personnel. The County maintains a Health Department with various divisions, which renders certain material health services to the entire County, including municipalities; this department employs sundry professionally trained people and ■ operates a competent laboratory. Its of■ficials consult frequently with the municipalities on their problems. The sanitation •division alone employs sixty-one persons, including six professional engineers and •thirty field inspectors; the sanitation ■services are rendered only in the unincorporated areas, except by contract. The .activities of this division include the inspection and control of milk processing and sale, food sales, water, sewage, industrial hygiene and sundry other activities. The County Public Works Department includes inspection divisions for sewers, plumbing, mechanical installations and for all electric wiring; this division alone employs thirty-six inspectors. Many of the municipalities of the County use some of these services by contract. The Department also reviews all building plans in the unincorporated area, issues permits, and makes numerous regular inspections during the construction of all buildings. The County employs a Traffic Commissioner with fourteen full-time employees and ten part-time; this staff makes almost continuous studies of county-wide traffic conditions, prepares control plans, makes recommendations to the County Traffic Commission, and frequently consults with the municipalities on traffic problems. The Commission, a citizens’ body, is responsible for traffic signs and control devices outside the incorporated areas; the Staff had made traffic surveys in and adjacent to this particular “area.” The County maintains a Highway Department acting under a Highway Engineer; it has and operates various types of equipment adequate for the maintenance of the county roads; new construction work is performed largely by contract. We have already alluded to the matter of County Planning and Zoning. The County has a freeholder Planning Commission, which is aided by a paid staff of seventeen persons; five of these are professionals in the field. All applications for zoning amendments are processed through the staff and the Planning Commission. Some of the recent zoning developments have already been outlined. It will not be necessary to discuss the several other county departments, such as administration, welfare, education, etc.

The City of Olivette is a city of the third class, first incorporated in 1930, and having the City Manager-Council form of government. Its population in 1960 was 8,257, having increased from about 1,761 in 1950. Its area is approximately 1,700 acres; it has effected two annexations since its incorporation. The entire city is in the Ladue School District, with several elementary schools located within its limits. It, of course, maintains no schools. Oliv-ette has a city hall, centrally located, which houses its departments and official personnel, including the Police and Fire Departments. The department heads report to the City Manager. There are, in all, twenty-five paid full-time employees and two part-time employees. Its property tax rate at time of trial was sixty-five cents on the $100 valuation; such taxes are supplemented by a gross receipts tax on utilities, a merchants’ and manufacturers’ tax, automobile licenses, etc. Its remaining bonded indebtedness was $28,000. It was stated in evidence that 95.36% of the land within Olivette was “developed,” but it was also admitted that this term and that percentage included all land and tracts upon which any building had been erected, or any subdivision established without regard to buildings thereon. We conclude that there is no satisfactory or accurate showing of the approximate amount of vacant and available land in Olivette, either residential, commercial, or industrial. It does fairly appear that there are substantial tracts of vacant land in certain industrially zoned areas, and there is at least a fair inference that much vacant land remains in areas zoned residential and commercial. The principal map used as an exhibit merely shows city limits, subdivisions, streets, zoning (actual or prospective) and a few indications of ownership. It is impossible from any exhibit brought here to determine the actual amount of vacant land in any category.

We summarize as briefly as may be the evidence concerning Olivette’s municipal departments and services. Its police personnel consists of eight men, all of whom have had training; the department operates three police cars with the usual modern equipment; its radio calls come through the County Police Department, though it is stated that the City has an application-pending for a license. The Department maintains regular patrols of the City. Its records are transmitted to and kept primarily in the Central County Police files. Its fire department employs ten men, plus volunteers, all of whom train weekly in fire procedures. The department has and operates one pumper and sundry auxiliary equipment. It has a co-operative contract with certain other municipalities. It is said that the Department can make a run from its firehouse to Warson and Baur in two and one-half minutes, the distance being 1.7 miles. Olivette’s Health Department consists of a volunteer, non-paid director who is evidently a dedicated person; he is a practicing dentist, Dr. E. V. Lambrechts. He has had considerable practical experience and has been accorded recognition in certain health circles. Dr. Lambrechts has no regular employee, but states that he is assisted in his work from time to time by the Police Department, the Fire Department and the Public Works Department. The City thus operates mosquito and rodent control, requires the cutting of weeds, approves plans for and inspects private swimming pools, operates (through private' contract) a trash and garbage collection system and inspects septic tanks and stagnant water, using a deodorizing or “sanitizing” service on the overflow where necessary on account of unpleasant odors. At' times the fire department flushes out the objectionable places. Dr. Lambrechts knew that the City had no land fill, but he did not know where the garbage hauler-dumped the refuse. The City contracts with the County for the services of one of the latter’s health inspectors or sanitarians for ten hours per week; this man, or men, with or without Dr. Lambrechts, make various inspections and provide general sanitation services to that extent; under another arrangement the County Department also furnishes rabies control services in Olivette. The City has a Planning and Zoning (Citizens) Commission, which generally considers zoning matters, the approval of subdivisions, etc. When considered necessary, it employs professional assistance. The City’s Department of Public Works consists of a full-time Building Commissioner with one assistant. The ■Commissioner is a registered architect. These men review plans, issue building permits, enforce the zoning ordinance and many others, and make substantially all of the structural, plumbing, electrical and miscellaneous inspections; they are also responsible for street maintenance and construction, sidewalks, street lighting, and garbage and refuse collection. The City only has sidewalks in the vicinity of two elementary schools. Since the first trial, about 1400 feet of new street construction had been made on Dielman Road, a principal north and south street (with a $50,000 contribution from a private industrial corporation) and an unspecified amount on another street or streets. Many of the streets in Olivette, probably 50%, are still private streets, having been built by developers in the creation of subdivisions and never taken over by the City. The City does not maintain such streets. Many septic tanks remain in the City, though some new sewers are being planned. The Building Code permits either sewers or septic tanks, but there was testimony that the Building Commissioner was requiring sewers on new subdivisions. Since the first trial the City has, by contract with Union Electric, had installed thirty-three street lights, was in the process of installing nine others, and was considering more.

Throughout the trial counsel for Oliv-ette laid considerable stress upon the fact that employees of the County Public Works Department had supposedly approved plans for and issued building permits for two or three industrial buildings in the forty-acre industrial tract in the ■“area” without first requiring the filing and approval of a “metes and bounds” subdivision plat as it claimed should have been done. This was apparently stressed to show a supposed carelessness or incompetency in that department. The evidence is rather confusing and complicated but, assuming that a plat should have been sooner required, the matter involves merely a specific error or errors and certainly may not control the real issues before us. The evidence has not convinced us of the incompetency of that County Department. A plat was, according to the evidence, approved and recorded in June 1961, while this case was still on trial.

The Intervenor-Appellants Monsanto Chemical Company and General Electric Company have briefed alleged constitutional issues. Although these are stated in various forms, when boiled down they are: that Sections 18(a) and 18(c) of Art. VI, Mo. Constitution, 1945 (erroneously cited as Article 18 throughout the brief), permitting counties of over 85,000 inhabitants to adopt a charter providing for the vesting and exercise of certain legislative powers, reserve such powers to the people of such a county, and constitute a fundamental limitation on all legislative interference; that, therefore, neither the legislature nor any of its creatures may oust or divest the charter government of any of its listed powers, including police, traffic control, public health, building construction and planning and zoning; and that any attempt by a city to annex portions of the county territory are void, as such would constitute an amendment of the county charter, which can only be accomplished by a vote of all the people of the county. Section 18(k). The argument is, thus, that the Sawyers Act is unconstitutional.

In ruling on motions following the first trial, the trial court held the Sawyers Act to be inapplicable because the county territory outside the cities and towns was not an “unincorporated area.” This was reversed on appeal. 338 S.W.2d 827. This court there said 338 S.W.2d loc. cit. 836: “Under § 18, Art. VI, St. Louis County was incorporated as a county and not as a city. The fact that constitutional provisions permit the incorporated county to render to certain of its inhabitants services of a local or municipal nature does not change its essential status from that of a county. It is not the intent of § 18, Art. VI, to make the legal status of a charter county equivalent to that of an incorporated city. The debates of the constitutional convention to which we have been cited by both sides are consistent with this conclusion. * * * Despite its corporate form of organization and all its permissive functions of a municipal nature, St. Louis County is not, as a matter of law, tantamount to an incorporated city within the concept of the annexation statutes. Therefore, the area in question is an ‘unincorporated area’ within the meaning of the Sawyer [s] Act. The court erred in holding that the Sawyer [s] Act was not applicable.”

The court thus construed the Constitution and not merely the Sawyers Act, as Intervenors assert. Intervenors also say that the questions now raised are wholly different from those thus adjudicated. We have searched the record and find that if they are different, they are not sufficiently raised and preserved. A constitutional question must be raised at the earliest opportunity, kept alive throughout the case, and preserved in the motion for new trial. City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372; State v. Brookshire, Mo., 325 S.W.2d 497, 500, and cases cited; Ingle v. City of Fulton, Mo., 260 S.W.2d 666. When these two Inter-venors entered the case, they were granted leave to do so “upon adoption * * * of the pleading of Walter Graeler.” For that pleading, we go back to the prior record. Defendant Graeler and his original associate defendants alleged (in so far as is in anywise applicable here) that: the County was authorized to furnish and was furnishing adequate municipal services, specifying these in some detail; that the “area” was included within “an organized and existing body politic or municipal corporation, organized by the adoption of the St. Louis County Charter, and by reason thereof Section 71.015 RSMo 1949 is not applicable * * *.” The point thus raised was precisely the point which this court ruled adversely to the defendants at 338 SW.2d 827, and there is no indication in the present record that any attempted extension or enlargement of the point was ever called to the attention of the trial court at the second trial. The two present Inter-venors filed no further answer; they have thus pleaded no constitutional question which has not been adjudicated. They cannot now make additional arguments on. the adjudicated question, nor can they raise, in briefs, new questions. Moreover,, in the present motion for new trial, filed; by “Defendants” with no specific mention, of Intervenors, the following points were-raised among others: that St. Louis County was a charter county and a municipal' corporation; that the “area” was within its-boundaries, and that it was not subject to. annexation under § 71.015, RSMo 1949, V. A.M.S. “which applies only to unincorporated areas”; substantially the same allegations were repeated in another paragraph. There is, at best, some doubt as to-whether Intervenors actually joined in this, motion for new trial but, giving them the-benefit of the doubt, no possible constitutional question was preserved therein except the one already adjudicated in our prior Olivette opinion. And we note that these allegations of the present motion for new trial are essentially identical with, those of the motion following the first trial, except for the apparently erroneous omission of a line. It is thus demonstrated', that even after the second trial the In-tervenors were not attempting to raise, or present to the trial court, any new or different constitutional questions. It follows-that no new constitutional points have been, raised or preserved in the present record, and none will be ruled. The opinion of the St. Louis Court of Appeals in City of' Olivette v. Graeler, 329 S.W.2d 275, merely held that the constitutional point which, we previously decided was properly raised..

The trial court here found and decreed: that the annexation “was necessary-to the proper development of * * * Olivette”; that it was “reasonable” as to-Olivette and “as to the inhabitants and owners” in the area; that it was “in the best interest of St. Louis County as a community” ; and that plaintiff had the ability to furnish its normal municipal services within a reasonable time. These findings, as all will note, were most general. When this case was here before, we laid down certain relevant rules for the consideration of the merits. Briefly these were: that upon the consideration of reasonableness, the fact that municipal services were presently being rendered in the area should be weighed; that the people of both the City and the proposed area are entitled to the benefit of the test of reasonableness; that the burden of proof is upon the annexing city; that it is in order to consider what the “proper development” of a city is in the light of existing conditions (such as the multitude of annexations and incorporations in St. Louis County), as an element of necessity and reasonableness; that the development of the county must be considered and “the interest of the county as a community must be weighed against the claims of the city * * We shall consider these suggestions along with the usual guides so often laid down in annexation cases.

As already indicated, a large part of this “area” is now zoned industrial by the County; it is apparent from this record that the thinking of the county government is that the whole of the “area” (except for limited existing commercial uses) should be so zoned as part of a larger industrial area in that section, and the County Planning Director definitely expressed such an opinion. It is fair to assume that the County would so treat the area, even without specific consideration of the Land-Use Plan, as such. We have no way of knowing what use or uses Olivette would or might assign in its zoning. There is evidence that it objected to the rezoning of the forty-acre tract to industrial use, and to the rezoning of a smaller tract to multiple dwellings. We shall not attempt to guess its overall reasons. The County’s position is, in part, that it definitely needs a substantial proportion of industrial property in order to maintain a satisfactory tax base. There are no residential subdivisions in the area and comparatively few residences. The land values, in so far as disclosed in the record, are far too high to permit any substantial residential development. There is nothing to show any “overflow” from Olivette, residential or industrial. The selection of the site for this industrial development was made because of its independent advantages, and had nothing to do with the City of Olivette. And it is apparent that the very high land values existing in the area for industrial purposes have had nothing whatever to do with the proximity of Olivette. The present state of the “area” certainly does not represent an expansion or “actual growth” of Olivette. State ex inf. Major v. Kansas City, 233 Mo. 162, 134 S.W. 1007; City of Houston v. Duff, Mo.App., 338 S.W.2d 373.

While the Sawyers Act made important changes in annexation, procedural and substantive, the rules laid down in the cases prior to that Act are still helpful. City of Olivette v. Graeler, Mo.App., 338 S.W.2d 827, loe. cit. 837; City of St. Ann v. Buschard, Mo.App., 299 S.W.2d 546. Such cases include: State ex inf. Major v. Kansas City, 223 Mo. 162, 134 S.W. 1007; Dressel v. City of Crestwood, Mo.App., 257 S.W.2d 236; Johnson v. Parkville, Mo., Mo.App., 269 S.W.2d 775; Ozier v. City of Sheldon, Mo.App., 218 S.W.2d 133. We shall not attempt to recapitulate all of those rules, but will refer to some in connection with the present facts. There is now no doubt that the Sawyers Act places upon the annexing city the burden to prove the elements required by the Act; those elements include proof that (1) the “annexation is-reasonable and necessary to the proper development of said city”; (2) “[t]he ability of said city to furnish normal municipal services of said city to the unincorporated area within a reasonable time * * *.” Our former Olivette opinion clearly holds that the issue of reasonableness, both to the people of the City and those of the “area,” is a concept “separate (from) hut closely related” to that of necessity to the proper development of the City; that otherwise the requirement would preclude any consideration of reasonableness to the people of the “area,” an element long considered. For similar interpretations see also City of Houston v. Duff, Mo.App., 338 S.W.2d 373, and City of Woodson Terrace v. Herklotz, Mo.App., 349 S.W.2d 446. The language in City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4, 9 [6, 7] concerning “necessity” was used in a discussion of the older cases and should not be taken as indicating the contrary. And we note here that on the issue of reasonableness we held in Olivette, 338 S.W.2d loc. cit. 837, 838, that “modern economic and social trends” must be considered as well as the increased powers and functions of counties and “the interest of the county as a community.”

In our view the County is able to furnish all normal municipal services to this area as and when needed, except fire protection, which is available elsewhere. Viewed in this light, the annexation would simply impose city taxes upon the residents and property owners of the area, without the equivalent in added benefits. Jones v. City of Ferguson, Mo.App., 164 S.W.2d 112; City of Creve Coeur v. Patterson, Mo.App., 313 S.W.2d 739 (involving this same area); City of Houston v. Duff, Mo.App., 338 S. W.2d 373. The lands in the area are not valuable “by reason of their adaptability for prospective town uses” (State ex inf. Major, supra) for, in view of the County development, any prospective “town uses” would add little to the existing status. And, by the same token, the land is no more “held to be brought on the market” or developed as town property than as county property. Some of the older rules are thus wholly inapplicable here, because this property can be (and much of it is) as totally and completely developed under the county government as it would be under the City of Olivette or any other municipal government. The industries now or hereafter in the area have a labor supply just as readily available now as they would have if the area were annexed. We have already noted that the development of this area is in no sense an “actual growth” of Olivette beyond its boundaries. Major, supra. In no substantial sense is annexation required for the health of Olivette and, in any event, the County is in much better position to furnish health services than is Olivette; nor does the area present any police problem to Olivette.

We have sufficiently discussed the evidence and the detailed rules. We conclude that the proposed annexation would not be and is not reasonable to the residents and property owners of the area sought to be annexed; also that, in this instance, the interests of the “county as a community” outweigh the claims of Olivette. City of Olivette v. Graeler, 338 S.W. 2d loc. cit. 838. We do not approve the statement with reference to that opinion in City of St. Ann v. Buschard, Mo.App., 356 S.W.2d 567, loc. cit. 578, as follows: “ * * * we think it clear that what was referred to was the interest of the county as a community with respect to the furnishing of municipal services to the proposed area and the comparison of those services with those which the city could offer the proposed area, should annexation be accomplished.” Our ruling there and here encompasses and requires a consideration of the interest of the County in the area generally and the effects of the proposed annexation, not only in connection with services rendered, but in a loss of control of the area and in such other ways as would vitally affect the County. Much water has gone over the dam since the writing of such St. Louis County annexation cases as, — City of St. Ann v. Buschard, Mo.App., 299 S.W.2d 546 (1949); Dressel v. City of Crestwood, Mo.App., 257 S.W.2d 236 (1953); Mauzy v. City of Pagedale, Mo.App., 260 S.W.2d 860 (1953), and perhaps others. The County population has increased vastly and shifted; it has been desirable and necessary to develop very substantial industries and industrial areas in locations outside of the municipalities; “desirable and necessary” both to the County and to the owners of the property. Some of these areas have been rather promptly annexed by neighboring municipalities, more or less in disregard of the County’s interests and those of at least some of the property owners in the annexed areas. We were told at the argument of this case that there were then twenty-nine annexation suits pending in St. Louis County in which the County had intervened. This race for annexations has become somewhat unseemly; as stated in our prior opinion here (338 S.W.2d loc. cit. 838) : “There is a great deal of competition between other cities for the unincorporated territory adjoining them.”

We said in Olivette, at 338 S.W.2d loc. cit. 838: “The interest of the county as a community must be weighed against the claims of the city because the county’s municipal powers are also provided by law and are a part of the public policy of the state.” It seems obvious that in this highly developed and substantially urbanized community we have a situation materially different from those which exist in annexation proceedings elsewhere. This “area” has more services and advantages available and has less need for the City’s services; the County has the facilities and the organization to furnish the necessary services; the area is, in large part, highly developed through no act of the City, directly or indirectly; and the County here, by annexation, would lose control of an area which constitutes an integral part of its future plans. In such a situation it would be difficult to establish an overall reasonableness and necessity, considered in the light of our recent constructions of the Sawyers Act.

We are wholly unwilling, at this time at least, to consider the St. Louis County government organization as an “interim device,” intended merely to operate during a transition period and until the “⅜ * * areas had developed so as to be susceptible of municipal government * * This the plaintiff suggests. And it will correct nothing here to add the burden of city taxes in the proposed “area” even if, as plaintiff states, the municipalities already pay approximately five-sevenths of the county taxes. Olivette would still pay, on its present territory, the same county taxes after annexation. This record contains no suggestion of raising the county tax rate in order to provide increased services, but rather a suggestion of the necessity of maintaining an adequate tax base by the retention and building up of industry. So long as the County has an effective county organization, it should not be whittled away to a mere shell by annexations which have as their prime purpose the acquisition of more city taxes. It would seem that ultimately there must he some overall and far-reaching solution to this problem, but such a solution is outside the domain of this case. In the meantime, some cities may wish to consider consolidations, particularly if they desire, as is indicated in Olivette’s testimony here, to become large enough and populous enough to attain Home Rule status.

We have not discussed, specifically, the requirement that the annexation be “necessary to the proper development” of Oliv-ette. Obviously, it would be desirable from the City’s point of view. This requirement, while separate, is “closely related” to that of reasonableness. Having found the proposed annexation unreasonable in the respects noted, we need not pursue the question of “necessity” further. We do note in passing that no necessity has been shown for the extension of Olivette’s streets into the “area,” that one is required to pass through a portion of Creve Coeur in order to reach the “area” on the only through road or street (Olive Street Road), that no extension of police regulations is necessary, that no substantial health hazard is shown (any more than in Olivette itself), that there is no necessity on Olivette’s part for the extension of gas, water or sewer lines and that it would have nothing to do with any such, and that there is no interdependence between the people and business of the area and the City of Olivette.

In our view plaintiff has not met its burden of proving the elements required by the Sawyers Act. In so ruling we do not usurp the legislative function, but merely hold that there was no substantial evidence to show that the proposed annexation was reasonable. The so-called “debatable” rule merely means that if there is substantial evidence both ways, then the legislative conclusion is determinative. State ex inf. Mallett ex rel. Wommack v. City of Joplin, 332 Mo. 1193, 62 S.W.2d 393, loe. cit. 398. And the “issues of reasonableness and necessity and the other fact questions in a Sawyer[s] Act case should be determined in the same manner that such issues are decided in other actions.” Olivette v. Graeler, 338 S.W.2d 827, loc. cit. 837; City of Houston v. Duff, Mo.App., 338 S.W.2d 373, 381.

The judgment is reversed with directions to the trial court to dismiss plaintiff’s petition.

All of the Judges concur.


author: STEWART, Chief Justice.

text:
    W. B. FOSSON et al., Appellants, v. FISCAL COURT OF BOYD COUNTY, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    June 21, 1963.
    H. David Hermansdorfer, Diederich & Hermansdorfer, Ashland, for appellants.
    James E. Adkins, Calvin R. Gearhart, Catlettsburg, Howard VanAntwerp, Jr., VanAntwerp & VanAntwerp, Ashland, for appellees.
   STEWART, Chief Justice.

The Boyd County Board of Education (herein called “the board of education”), whose members are appellees herein, determined it was necessary to construct an elementary school at Catletts Creek. Under statutes regulating the issuance of revenue bonds, mentioned hereinafter, the board of education has no authority to act on its own but must make financing and building arrangements through the Boyd County Fiscal Court (herein called “the fiscal court”), whose members are also appellees herein. After the school building is completed, it is leased to the board of education by the fiscal court pursuant to the terms and conditions of KRS 162.140.

An architect was hired and plans were effectuated for constructing the school. The fiscal court advertised for bids, the advertisement stating the right was reserved to reject any and all bids. In the specifications upon which bids were based, the bidders were instructed as follows:

“Each contractor will be required to state in his bid the number of working days he estimates will be required to complete this project. This number, as well as the bid price, may be instrumental in the selection of the successful bidder.”

Three bids were received, but only two are involved in this action. W. B. Fosson & Sons, appellants herein, submitted a base bid of $249,745 and a contract completion time estimate of 220 days. W. D. Johnson, an appellee herein, submitted a base bid of $249,751 and a completion time estimate of 180 days. The board of education recommended that Johnson’s bid be accepted. Thereupon the fiscal court awarded the contract to Johnson. There is no question but that both these bidders are responsible contractors.

Appellants immediately filed this action, procuring a temporary injunction against appellees which enjoined them from proceeding further in the construction of the school building. Appellants also sought damages from appellees, alleging the latter’s conduct was arbitrary and capricious. A motion by appellees for summary judgment was sustained and the injunction was dissolved.

On this appeal, appellants contend KRS 162.070 controls fiscal courts and makes it mandatory that contracts, such as the one in controversy, be let to the lowest and best responsible bidder complying with the terms of the letting, when engaging in a school building project under KRS 162.300.

Under KRS 162'300 county boards of education and boards of independent school districts, not embracing a city of any class, in order to obtain buildings for school purposes, are permitted to follow the same plan as cities (See KRS 162.120 through KRS 162.300), and that is the general plan followed by the board of education and the fiscal court in the case at bar, except that the financing of the building was to be done under the applicable provisions of KRS Chapter 58. No where in these pertinent statutes is there any requirement about letting contracts to the lowest bidder or even to the lowest and best bidder. It would therefore appear that the terms and conditions of KRS 162.070 may not be the governing statute under the facts presented but see KRS 424.260.

The order of the fiscal court accepting the W. D. Johnson bid recites therein all the bids received, including the base bids and five alternative items for each, and then states, in part:

“The Boyd County Board of Education by resolution recommended that the base bid of W. D. Johnson * * * be accepted as the lowest and best bid, therefore, it is moved * * * that W. D. Johnson be awarded the contract * * ⅜11

Appellant argues this statement shows that the fiscal court did not exercise any discretion in this matter, but only in a purely ministerial fashion approved the recommendation of the school board as if it were a compulsory order. Such delegation of its discretion to the school board, it is insisted, represents arbitrary and capricious conduct on the part of the fiscal court.

The trial court ruled that the power to accept or reject the bid was in the fiscal court, and that the trial court could not interfere in the matter except in cases of fraud or collusion, which were not alleged in this case. This holding is sustained by the case law of this jurisdiction. See Baskett v. Davis, 311 Ky. 13, 223 S.W.2d 168; Bancamerica-Blair Corporation, et al. v. State Highway Commission, et al., 265 Ky. 100, 95 S.W.2d 1068; R. G. Wilmott Coal Co. v. State Purchasing Commission, et al., 246 Ky. 115, 54 S.W.2d 634; Trapp v. City of Newport, 115 Ky. 840, 74 S.W. 1109.

This statement, taken from 43 Am.Jur., Public Works and Contracts, sec. 45, p. 788, is pertinent to the situation before us :

“ * * * It has been held that where the right to reject is reserved, the lowest bid or any bid may be rejected on a mere technicality, that all bids may be rej ected, even if arbitrarily and unwisely, or under a mistake, and that in the exercise of a sound discretion, the award may be made to another than the lowest bidder. The presentation by a reliable and responsible bidder of the lowest bid to officials whose duty it is to let the contract to the lowest reliable and responsible bidder, but who have the right and have given notice - that they reserve the right to reject any and all bids, does not constitute an agreement that they will make a contract with such a bidder, nor vest in him such an absolute right to the contract as against a higher bidder.”

Here, appellants’ assertion of unlawful delegation of discretion by the fiscal court is premised solely on the wording of that court’s order awarding the contract. Balanced against this must be such facts, which were known to the fiscal court, as the merely nominal difference ($6.00) in the base bids and the great difference (40) days in work completion time.

The award of the contract to W. D. Johnson as the lowest and best bidder under all the facts and circumstances, in our opinion, represents an honest decision of public servants endeavoring to use their best judgment in reaching the conclusion they thought best.

Wherefore, the judgment is affirmed.


author: BIRD, Judge.

text:
    M. N. ALEXANDER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 21, 1963.
    Tom Garrett, David R. Reed, Paducah, for appellant.
    John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., Frankfort, for ap-pellee.
   BIRD, Judge.

M. N. Alexander was convicted on a charge of knowingly receiving stolen property. He appeals.

On trial he introduced witnesses to testify concerning his character. Over his objection the trial court permitted these witnesses to be cross-examined on matters pertaining to certain acts of Alexander which were highly indicative of other violations similar to that upon which he was being tried. Although he had objected to this type of interrogation the trial court failed to admonish the jury as to the purpose of its reception. This failure constituted prejudicial error.

In Fugate v. Commonwealth, 211 Ky. 700, 277 S.W. 1029, this Court said:

“The evidence of a character witness, consists of his own opinion or conclusion as derived from common report touching the reputation of the person under investigation in the neighborhood; of his residence. In order for the jury to determine the proper weight to be given such evidence, the witness’ information, accuracy, and candor may be tested on cross-examination by asking him as to having heard conflicting expressions of opinion by other persons on the same subject, as well as to reports and rumors in the community imputing particular acts or offenses to such person. 22 C.J. 483; McCreary v. Com., 158 Ky. 612, 165 S.W. 981; Johnston v. Com., 170 Ky. 766, 186 S.W. 655; Copley v. Com., 184 Ky. 185, 211 S.W. 558; Steele v. Com., 192 Ky. 223, 232 S.W. 646. But it is a dangerous character of evidence, and should not be extended beyond its true limits, and should be limited by an admonition of the court defining its purpose, upon motion of the party affected or upon his objection to its admission. Johnston v. Com., 170 Ky. 766, 186 S.W. 655; Copley v. Com., supra; Steele v. Com., supra.
“If all the witnesses answer the questions in the negative, the court should exclude them, and admonish the jury that they cannot be considered for any purpose. If the witness answers in the affirmative the court should substantially tell the jury that the matters referred to in those questions are not in issue, and that the answers of the witness are not to be regarded as evidence of the truth of such matters, or as evidence of any substantive fact, but that they may be regarded by the jury in considering the credibility and accuracy of the witness and for no other purpose. Although the defendant objected to this evidence, the court did not admonish the jury as to its effect, an obvious error. * * * ” Emphasis added.

Further during the course of the trial testimony was received over defendant’s objection tending to prove other violations of similar nature. The trial court likewise failed to admonish the jury.

In Martin v. Commonwealth, Ky, 276 S.W.2d 19, this Court further said:

“We think this evidence was sufficient to take the case to the jury. The mere possession of the stolen property is prima facie evidence of guilt. KRS 433.290. The jury was warranted in concluding beyond a reasonable doubt from the circumstances under which Martin acquired possession of the adding machine (including the fact that it was purchased from a young boy for one-tenth of its value), that he knew it was stolen at the time. See Little v. Commonwealth, Ky., 261 S.W.2d 620, and Clatos v. Commonwealth, 298 Ky. 851, 184 S.W.2d 125.
“Finally Martin argues that the testimony of Walter Jackson, relating to other purchases of stolen goods by Martin, should have been excluded. Other unlawful receipts of property in the same manner described in the charge are admissible on the trial of such a charge, in order to show knowledge and intent, as well as a course of dealing on the part of the accused. Ball v. Commonwealth, 278 Ky. 52, 128 S.W.2d 176. See also Lee v. Commonwealth, Ky, 242 S.W.2d 984.” Emphasis added.

In Ball v. Commonwealth, 278 Ky. 52, 128 S.W.2d 176, mentioned in the Martin case, this Court again said:

“Other unlawful receipts of property in the manner described in the statute are admissible on the trial of such a charge, in order to show knowledge and intent, as well as a general course of dealing on the part of the defendant; but such proof can not be received for the purpose of increasing the value of the property received, to the combined valuation of the amount of each separate and distinct receipt. See Washington v. Commonwealth, 10 Ky. Op. 170. When such evidence is admitted for the purpose of proving intent, etc., as above pointed out, it becomes the duty of the court to admonish the jury the purpose for which all other proven receipts were admitted.” Emphasis added.

Though objections were duly made the admonitions were not given upon reception of the testimony. From the foregoing authorities we must conclude that the trial court erred to Alexander’s prejudice.

The judgment is therefore reversed for a new trial not inconsistent with this opinion.


text:
    R. H. HOBBS COMPANY, Inc., Appellant, v. Sylvia R. MANNING et al., Appellees.
    Court of Appeals of Kentucky.
    June 21, 1963.
    Clyde Williams, Jr., Campbellsville, E» N. Venters, Pikeville, for appellant.
    Robert M. Spragens, Lebanon, Ogden,. Brown, Robertson & Marshall, Louisville, George O. Bertram, Faulkner & Bertram,. Campbellsville, for appellees.
   BIRD, Judge.

The Hobbs Company occupied under lease a portion of a business building owned' by the Hubbard heirs. The building was. destroyed by fire and rendered wholly un-tenantable and unsuitable for occupancy by the Hobbs Company and other tenants of' the building. The Hubbard heirs gave notice to the Hobbs Company that they considered the lease terminated, that they had’ no intention of rebuilding, and that they intended to sell the property without improvements.

The Hobbs Company brought this action' demanding that the Taylor Circuit Court,, inter alia, determine that its lease was not terminated by the destruction of the building and that any purchaser of the property-from the Hubbard heirs would take title-subject to its lease.

Upon motion for summary judgment the-trial court found for the Hubbard heirs- and dismissed the complaint. The Hobbs-Company appeals to this Court.

Item 9 of the lease reads as follows:
“In the event that the premises hereby leased, or the building of which the same is a part, shall be partially damaged or destroyed by fire or other casualty, or so damaged that the demised premises are rendered untenantable or unsuitable for occupancy or the-operation of the business of the Lessee, the rental shall abate only in proportion and to the extent that the Lessee may be deprived of the use of the leased premises. If, however, the damage shall be so extensive as to render the demised premises untenantable, the rents due during the period the same is •in such untenantable condition shall wholly abate. In the event that said damage cannot be repaired within sixty (60) days of the date when the same occurred, then the Lessee shall have the option to terminate this lease upon written notice of such election to the Lessors. However, in the event the building, of which the demised premises are a part, shall be whollly or substantially destroyed, and should the Lessors rebuild or put in shape for occupancy, then this lease shall automatically resume its full force and effect from the date of completion of such rebuilding.” Emphasis added.

We have observed that no part of the lease specifically grants a right of termination to the lessors and we have further observed that no part of the lease requires the lessors to restore the building if wholly destroyed by fire.

However, our consideration of the last sentence of paragraph 9 of the lease leads us to conclude that the lessors had an option as to restoration of the building in case of total destruction. The wording of that sentence leads us to further conclude that it was contemplated by the parties that the force and effect of the lease is completely suspended upon total destruction and would not be resumed if the lessors decided not to restore the building. That sentence implies rather strongly that the lease is, in case of total destruction, inoperative in all respects and shall not again be operative until the lessors restore the building. Here the lessee was given notice that the lessors did not intend to .rebuild. In fact they began to sell portions of the property and others began to build upon it. The failure of the lessors to start restoration within a reasonable time together with notice to the lessee that there would be no restoration was sufficient to apprise the lessee that operation under the lease would never be resumed as provided in the last sentence of paragraph 9 of the lease.

There was no specific provision for lessors to terminate the lease. Such a provision was unnecessary. The lease had become inoperative by reason of total destruction and the termination was effected by lessors’ decision not to restore the building.

The trial court properly dismissed the complaint and the judgment is therefore affirmed.