author: STONE, Judge.

text:
    George T. FOOTE, Jr., and Lila P. Foote, Plaintiffs-Respondents, v. SCOTT-NEW MADRID-MISSISSIPPI ELECTRIC COOPERATIVE, a corporation, Defendant-Appellant.
    No. 8004.
    Springfield Court of Appeals. Missouri.
    July 10, 1962.
    Motions for Rehearing or to Transfer Overruled July 31, 1962.

      Blanton & Blanton, Sikeston, for defendant-appellant.
    Frederick E. Steck, Sikeston, for plain-tiifs-respondents.
   STONE, Judge.

For the alleged wrongful death of their unmarried minor son, George T. Foote, III (hereinafter called George), his parents, as plaintiffs, sued Scott-New Madrid-Mississippi Electric Cooperative, as defendant, and upon trial obtained a jury verdict for $8,000. From the judgment entered thereon, defendant appeals. Its primary complaint that the trial court erred in overruling defendant’s motion for a directed verdict at the close of all of the evidence requires a factual review, in which we should and do give appropriate recognition to the basic principle that, in determining whether a submissible case was made, we must consider the evidence in the light most favorable to plaintiffs, must accord to them the benefit of all supporting inferences fairly and reasonably deducible from the evidence, and must disregard defendant’s evidence except insofar as it may aid plaintiffs’ case. Daniels v. Smith, Mo., 323 S.W.2d 705, 706(2); Phillips v. Stockman, Mo.App., 351 S.W.2d 464, 471(7); Hildreth v. Key, Mo.App., 341 S.W.2d 601, 604(2)

When death by electrocution suddenly struck George in the front yard of his farm home on the afternoon of Sunday, January 3, 1960, he was exactly sixteen years seven months of age, approximately five feet nine inches in height, and about 165 to 175 pounds in weight. He had completed his freshman year in the Sikeston High School and had quit voluntarily during his sophomore year on October 29, 1959. Both his classmate, Dewey Holmes, and his father said that George was a boy of normal intelligence, and several farmer witnesses supported plaintiffs’ testimony that George was “all the way around a good hand on the farm,” had operated tractors and mechanized farm machinery not only on plaintiffs’ farm but also for hire on neighboring farms, and in short could do and had done “a man’s work.”

The farm home, in which George lived with his parents and other members of the family, was situate on the west side of a graveled north-and-south public country road near Sikeston. Running parallel with, near to, but inside (i. e., east of) the west right of way line of the public road was defendant’s north-and-south single phase, 7200 volt, electric transmission line carried overhead on wooden poles. There were two wires in this transmission line, towit, (1) the energised or “hot” wire carrying 7200 volts which was attached to the top of the poles and (as stipulated by the parties) was 25 J4 feet above the ground, and (2) the unenergised neutral wire carrying no voltage which was attached to the poles 4 feet below the energized wire and thus was 21 ½ feet above the ground. Several feet below the unenergized neutral wire, crossarms carrying two telephone wires were attached to the pole line. The only wire figuring in the tragedy under consideration was the energized wire 25½ feet above the ground which was a bare, uninsulated copperweld wire. Although we recognize that the National Electrical Safety Code fixes and promulgates only minimum standards, compliance with which may not, in all circumstances, establish freedom from negligence [Gladden v. Missouri Public Service Co., Mo., 277 S.W.2d 510, 515], it was in evidence that the Safety Code required a minimum clearance of 18 feet for 7200 volt rural lines. Admittedly, there were no warning signs on or about the poles, and nothing indicated the voltage transmitted over the line.

Plaintiffs’ witnesses variously estimated that the front of the Foote farm home was from 50 to 100 feet west of defendant’s north-and-south transmission line. Three medium-sized shade trees (at that season of the year without foliage) stood in the front yard between plaintiffs’ home and the transmission line, but the undisputed evidence clearly established that none of the wires ran through or near any of the trees and that the wires were in the open and plainly visible from the ground. With respect to the appearance of the electric wires, George’s father testified that “they were up there in the air; you can’t see what they look like too much” — “they are of a black color, grayish black color.” When asked whether he could determine from the ground if the wires were insulated, he first answered that “I couldn’t say because I really don’t know, but they appear to be insulated.” However, he shortly explained that, if “you just set down there and eyeballed them for quite a while, you probably could tell they wasn’t insulated.” George’s mother stated that she could not tell whether the wires were insulated, and that she did not know their color “but they look dark.” Plaintiffs’ witness, Dewey Holmes, said that these wires were “the same color as any ordinary wire, sort of a dull looking color.” In any event, they had been in the same location since plaintiffs had built the Foote farm home almost sixteen years prior to the tragedy in suit; and during the same period the Foote family had been supplied with electric service from this transmission line and had operated in their home numerous electric appliances which, in our materialistic abundance, we have come to regard (in the words of George’s mother) as “common things like a washing machine, a deep freeze and an ice box and an iron and television.”

Early on the fateful Sunday afternoon of George’s accident, Dewey Holmes, a neighbor youth also sixteen years of age, came to the Foote home in a pickup truck which he parked, headed south, on the west side of the road in front of the house. Dewey described the day as “pretty warm” with “a pretty strong wind blowing out of the west and a little bit southwest” — it was “gusty.” 'After the two youths had passed some time in innocent pursuits such as walking around the barn and hunting Indian arrowheads in a sandhill, they found some copper wire and two tin cans in a trash barrel, tied the ends of the wire through holes punched in the bottom of the cans, and thus “made a sort of a telephone thing” to talk through. We observe parenthetically that Gary, George’s younger brother, testified that, before this copper wire had been thrown in the trash barrel, George had kept it in his room for use in “something for the school bell” which, with the aid of batteries, he had intended to make. Returning to the activities of the tragic Sunday afternoon, plaintiffs’ evidence was that George and Dewey talked over their improvised can and copper wire telephone line “for a little while in the back of the (Foote) house and then . . . went around (to) the front” where they simply stood and talked for a few minutes without using the “telephone.” Then Dewey got into the parked truck, put one end of the copper wire with a can on it through the open right-hand or west window of the truck, rolled “the window up on the wire and talked through it like that for a little while” until the wire broke right at the truck window.

This left Dewey with only an inch or so of wire inside the window, and George had the remainder of the wire (no one estimated its length) with the can on his end of it. ' George began to swing the can “in a circle,” holding the copper wire in his left hand about ten inches (as Gary thought) or about eighteen inches (as Dewey estimated) from the can. As he swung the can, George was facing north and was standing in (but near the edge of) his front yard at a point some four or five feet west of the overhead transmission line and about twenty feet south of the nearest pole. The only two eyewitnesses, Gary Foote and Dewey Holmes, agreed that, while thus swinging the can around, George received no electrical shock and the can was not close to the energized top wire. Suddenly and without saying anything, George “let go of it” (as Gary said) or “he either let go of it or it slipped out of his hand — I don’t know” (as Dewey related it). In either event, the can went over the energized top wire, and the deadly current, always seeking a route to the ground, found it through the copper wire and George’s body. He turned around and immediately fell on his stomach to the south. The only thing the stricken youth said before expiring was the warning “Dewey, don’t touch me; I have been electrocuted.”

Many distinguished jurists have, over the years, written with feeling and fervor concerning the force known as electricity, vividly and vigorously but aptly and •appropriately characterizing it in nature and effect as dangerous and deadly, invisible and insidious, lurking and lethal, mysterious and murderous, odorless and ominous, and sightless and sinister. With electricity being all of that and more to those unschooled and untrained in its properties and behavior, certainly it is both fitting and necessary that those generating, transmitting or distributing such force should be obligated by law, as they are, to exercise care commensurate with the nature and effect of that force and the danger and hazard incident thereto. Gellert v. Missouri Service Co., Mo., 221 S.W.2d 177, 179; 29 C.J.S. Electricity § 39, p. 575; 18 Am.Jur., Electricity, § 48, loc. cit. 444. But, although the judicial declarations in this jurisdiction have firmly fixed and uniformly adhered to the utmost or highest degree of care as the required standard, it is perfectly plain that here, as elsewhere [29 C.J.S. Electricity § 38, p. 573], an electric company is not an insurer of the safety of persons and property, and that its liability vel non in a given situation is determinable upon principles of negligence.

Even as in other areas “(m)ost duties, imposed by the law of torts, arise out of circumstances and are based on ‘foreseeability’ or reasonable anticipation that harm or injury is a likely result of acts or omissions,” it has been held specifically that, in actions of this character, “ ‘(a)n-ticipation’ or ‘foreseeability’ is an essential element in determining negligence” [Gladden, supra, 277 S.W.2d loc. cit. 519(10)] and all of our Missouri cases in this general category so recognize either expressly or by necessary implication. Thus, an electric company is obligated to employ the highest degree of care either to insulate its transmission lines adequately or to isolate them effectively wherever, in the exercise of such degree of care, it reasonably may be anticipated that others, whether for business or pleasure, lawfully may come into close proximity to such lines and thereby may be subjected to a reasonable likelihood of injury.

It is true that, as instant plaintiffs emphasize, a submissible case on the issue of foreseeability was made if the jury fairly could have found that, in the exercise of the highest degree of care, defendant reasonably could have anticipated that some injury was likely to have occurred to one lawfully near its transmission line, and it would not have been necessary for the jury to have been able to find that defendant could have anticipated the exact injury which did occur or the exact manner in which that injury happened. And the reported cases dramatically demonstrate that the outer limits, within which jurors are permitted to find foreseeability, are (as logically they should be) exceedingly broad and flexible. But, we are mindful that our Supreme Court has pointed out that, in this category of actions [Hamilton v. Laclede Elec. Coop., Mo., 294 S.W.2d 11, 14] as well as in others where the same standard of care obtains [Brisboise v. Kansas City Public Service Co., Mo., 303 S.W.2d 619, 626], “ ‘even where the highest degree of care is demanded, still the one from whom it is due is bound to guard only against those occurrences which can reasonably be anticipated by the utmost foresight.’ ” See Hale v. Montana-Dakota Utilities Co., 8 Cir., 192 F.2d 274, 277; Atchison, T. & S. F. Ry. Co. v. Calhoun, 213 U.S. 1, 9, 29 S.Ct. 321, 323, 53 L.Ed. 671, 675. Or, as some of our brethren in other jurisdictions have put it, “ * * * (T)he law does not require that a person, who maintains even so deadly an instrumentality as a high voltage electric wire, shall anticipate at his peril every possible fortuitous circumstance under which some person might make a contact with the wire, resulting in injury or death.” Le Vonas v. Acme Paper Board Co., 184 Md. 16, 40 A.2d 43, 45(10); Hamilton v. Southern Nevada Power Co., 70 Nev. 472, 273 P.2d 760, 763; Manaia v. Potomac Elec. Power Co., 4 Cir., 268 F.2d 793, 797.

On the first point alone (i. e., on the submissibility of the case), defendant’s-appellant’s industrious counsel have listed thirty-one cases and equally-energetic counsel for plaintiffs-respondents has countered with thirty-seven. Being no less concerned than counsel about the right of the matter, we have read and considered all of the cited cases and many more; but neither counsel nor the court has uncovered any factually-analogous case in this jurisdiction. The nearest case on the facts (and it is still far distant) is Schneiter v. City of Chillicothe, 232 Mo.App. 338, 107 S.W.2d 112, in which plaintiff, a nine-year old boy shocked when he flew his kite into an uninsulated transmission line along a city street, had been cast in the trial court on a demurrer to his petition. Although it was decided upon appeal that the petition stated a cause of action, the opinion strongly suggests that instant plaintiffs did not make a submissi-ble case. For, the salient and determinative facts pleaded in Schneiter, supra, were (1) that, for a long period of time prior to plaintiff’s injury, children habitually had used an adjacent commons as a playground and had flown kites therefrom, and (2) that defendant knew, or in the exercise of due care could and should have known, thereof; and, among the repeated references to those pleaded facts, we find this blunt statement in the opinion: “Whether or not the defendant was under any duty to the plaintiff depends on the facts alleged in the petition as to its knowledge of the plaintiff’s habit of flying his kite from the street or the commons over which its wires passed.” [232 Mo.App. loe. cit. 348, 107 S.W.2d loc. cit. 118] In the case at bar, there was neither pleading nor proof of any habitual use or practice which could have charged defendant with knowledge that anyone was likely to come into contact, either direct or indirect, with its energized line 25½ feet above the ground.

The other Missouri cases cited by counsel or found by us, all involving energized wires which were uninsulated or inadequately insulated, fall into four broad factual classifications, towit, (1) those in which wires were maintained in places where defendant knew, or in the exercise of the highest degree of care could and should have known, that men would be likely to work in dangerous proximity thereto, (2) those in which wires ran through trees, (3) those in which wires were on the ground or so near thereto as to permit direct bodily contact, and (4) those in which persons were engaged in moving houses along or across public highways. None of the cited cases bears any factual resemblance to the case at bar; but, it is noteworthy and significant that, with the cases in the various classifications running the gamut of factual dissimilarity, all of them are strung like beads on the same legal thread of reasonable foreseeability.

Although no appellate court in Missouri heretofore has had occasion to consider whether a state of facts such as that before us lies inside the ambit of reasonable foreseeability within which our system of jurisprudence contemplates that jurors should resolve issues in tort cases, factually analogous situations have been presented in other jurisdictions where the overwhelming weight of authority is that such occurrences are not reasonably to be foreseen and thus that liability therefor should be denied as a matter of law. As we shall observe briefly, the circumstances in each of the three foreign cases cited by plaintiffs’ counsel, in which a contrary conclusion was reached, afforded stronger support for submissibility than do the facts of the instant case. In City of Marlow v. Parker, 177 Okl. 537, 60 P.2d 1044, an eleven-year old boy swung a wire into an uninsulated line crossing the back yard of his home at a height of only 8 to 10 feet— a compelling and distinguishing state of facts as was pointed out in Rudd v. Public Service Co. of Okla., D.C.Okla., 126 F.Supp. 722, 724 (footnote 5). In Krastel v. Long Island Lighting Co., 272 App.Div. 833, 70 N.Y.S.2d 617, an eight-year old boy threw a wire over an uninsulated line 16½ feet above the ground. Contrast Rand v. Long Island R. Co., 197 Misc. 744, 95 N.Y.S.2d 688, 691-692(2), where the court said that the accident befalling a fifteen-year old high school student, when he threw a wire over an uninsulated line some 5 to 10 feet above his head, ‘was not within the range of reasonable anticipation on the part of the defendant.’ ” In Martens v. Public Service Co. of Northern Illinois, 219 Ill.App. 160, where a seven-year old boy threw a wire over an inadequately-insulated line in a public street in the City of Waukegan, (1) defendant’s violation of a city ordinance requiring “a durable insulation of not less than two coatings” was “of itself prima facie evidence of negligence” and (2) “(t)he evidence (showed) that the children of the neighborhood * * * had been in the habit for a long time * * * as a part of their play, to throw strings over the wires in question.”

On the other hand, we note specifically that, in Howard v. St. Joseph Transmission Co., 316 Mo. 317, 331, 289 S.W. 597, 603-604, 49 A.L.R. 1034, our Supreme Court approvingly cited and quoted from Trout v. Philadelphia Elec. Co., 236 Pa. 506, 84 A. 967, 42 L.R.A.(N.S.), 713 (one of the cases listed marginally in note 12), in which the Supreme Court of Pennsylvania denied recovery as a matter of law for the death of a thirteen-year old boy who had been electrocuted when, having gone through a trap door onto the roof of a house, he had thrown a corncob tied to a string over an inadequately-insulated line about 4½ feet from the edge of the roof and had pulled the line within reach to detach a kite.

We quickly agree with counsel for instant plaintiffs that defendant reasonably might have been charged with knowledge that children of its rural customers would play in their front yards, but it does not follow that defendant reasonably should have anticipated that some such child would be likely to come into contact, either direct or indirect, with the energized line 25 ½ feet above the ground. With respect to such lines, we believe the common-sense pronouncement of our Supreme Court to be particularly pertinent: “ * * * certainly the exercise of the highest degree of care requires that such wires be so isolated that they will not be likely to cause injury to persons in places where they may lawfully be and may be reasonably expected. Of coitrse, one way this may be done is to place them at a height where persons are not likely to come in contact with them * * * ” (All emphasis herein is ours.) Gladden, supra, 277 S.W.2d loc. cit. 515. As hypothesized in plaintiff’s principal verdict-directing instruction in Erbes v. Union Elec. Co., Mo., 353 S.W.2d 659, one of the alternative protective measures which defendant could have adopted to have “adequately and sufficiently guarded” its high-voltage lines was to have “isolated said power lines by elevating them an adequate and safe height in the air" [353 S.W.2d loc. cit. 663]; and, as the court commented, "in that event workmen on this construction project would have been reasonably protected from the danger of contact with said wires." [353 S.W.2d loc. cit. 664] In Empire District Elec. Co. v. Harris, 8 Cir., 82 F.2d 48, where a fourteen-year old boy had been injured while climbing on a transformer station, plaintiff’s counsel insisted that a fence, preventive guard, or warning sign would have been necessary to have absolved defendant from negligence. Rejecting that contention and stating that defendant was not confined to that means of avoiding danger which plaintiff’s counsel might have selected, the court sagely observed that: “It (defendant) might as effectively use others, among which placing the danger out of probable reach is quite usual. That is why charged wires are placed on high poles. The same thought and action govern every parent in placing dangerous things where they reasonably think their children cannot get them." [82 F.2d loc. cit. 53]

Obviously, what may be “an adequate and safe height in the air” [353 S.W.2d loc. cit. 663], which would place any subsequent indirect contact with the line beyond the pale of reasonable foreseeability, must depend in each instance upon the circumstances of that case. E. g., one important consideration, among the many relevant ones, is whether the high-voltage lines involved in the accident under review “ ‘are suspended over the streets of populous cities or towns, for here the danger is great, and the care exercised must be commensurate with it.’ ” Erbes, supra, 353 S.W.2d loc. cit. 665; 18 Am.Jur., Electricity, § 48, loc. cit. 446. See also Hickman v. Union Elec. Light & Power Co., Mo., 226 S.W. 570, 573. But, in the instant case, we entertain no doubt but that defendant’s transmission line was elevated to such height that defendant reasonably could not have anticipated any contact, either direct or indirect, by a youth playing in an adjacent yard, and that, to stretch the elastic band of reasonable foreseeability around the undisputed and conceded facts of this situation, would require us to take a seven-league stride beyond the perimeter permissible under any prior holding in this state — a stride which we believe would be improper and forbidden unless and until our courts were to forthrightly renounce and frankly repudiate the doctrine to which they have held consistently, albeit sometimes tenuously, that those engaged in generating, transmitting or distributing electric energy are not absolute insurers of the public safety.

Thus concluding, as a matter of law, that defendant was not guilty of actionable negligence, it becomes unnecessary for us to rule other points presented, including the contention that, in any event, George was guilty of contributory negligence as a matter of law. Those interested in this subject may consult State ex rel. Kansas City Light & Power Co. v. Trimble, 315 Mo. 32, 39-41, 285 S.W. 455, 457-458, 49 A.L.R. 1047; Jones v. Kentucky Utilities Co., Ky., 334 S.W.2d 263; Hamilton v. Southern Nevada Power Co., 70 Nev. 472, 273 P.2d 760; Austin v. Public Service Co. of Northern Illinois, 299 Ill. 112, 132 N.E. 458, 462, 17 A.L.R. 795.

The judgment for plaintiffs is reversed.

RUARK, P. J., and McDOWELL, J., concur.

      . Hamilton v. Laclede Elec. Coop., Mo., 294 S.W.2d 11, 15(2); Lebow v. Missouri Public Service Co., Mo., 270 S.W.2d 713, 715; Howard v. St. Joseph Transmission Co., 316 Mo. 317, 332, 289 S.W. 597, 604(4), 49 A.L.R. 1034; Shannon v. Kansas City Light & Power Co., 315 Mo. 1136, 1150, 287 S.W. 1031, 1036; Schneiter v. City of Chillicothe, 232 Mo.App. 338, 344, 107 S.W.2d 112, 116(2).

      . Hull v. Gillioz, 344 Mo. 1227, 1236, 130 S.W.2d 623, 628(5); Emery v. Thompson, 347 Mo. 494, 498, 148 S.W.2d 479, 480 (3); Phillips v. Stockman, Mo.App., 351 S.W.2d 464, 472; LaPlant v. E. I. DuPont De Nemours & Co., Mo.App., 346 S.W.2d 231, 239; Taylor v. Hitt, Mo.App., 342 S.W.2d 489, 494(7); Street v. W. E. Callahan Const. Co., Mo.App., 147 S.W.2d 153, 155(3). See 2 Harper & James, Torts, § 16.9, loc. cit. 929; 2 Restatement of Torts, § 289, comment b, p. 763.

      . E. g., Erbes v. Union Elec. Co., Mo., 353 S.W.2d 659, 664-665; Lebow, supra, 270 S.W.2d loc. cit. 715-716; Laudwig v. Central Missouri Power & Light Co., 324 Mo. 676, 684-685, 24 S.W.2d 625, 627; Shannon, supra, 315 Mo. loc. cit. 1150, 287 S.W. loc. cit. 1036; Schneiter, supra note 1; Grady v. Louisiana Light, Power & Traction Co., Mo.App., 253 S.W. 202, 204 (1); Blackburn v. Southwest Missouri R. Co., 180 Mo.App. 548, 561, 167 S.W. 457, 460(6). See also Hale v. Montana-Dakota Utilities Co., 8 Cir., 192 F.2d 274, 276(4); Croxton v. Duke Power Co., 4 Cir., 181 F.2d 306, 308; 18 Am.Jur., Electricity, § 48, loc. cit 446; Id., § 93, loc. cit. 487.

      . Schneiter, supra, 232 Mo.App. loc. cit. 345(2), 107 S.W.2d loc. cit. 116(2); Erbes, supra, 353 S.W.2d loc. cit. 664; Lebow, supra, 270 S.W.2d loc. cit. 715; Godfrey v. Kansas City Light & Power Co., 299 Mo. 472, 253 S.W. 233, 236(1); Williams v. Springfield Gas & Elec. Co., 274 Mo. 1, 8(1), 202 S.W. 1, 2; Grady, supra, 253 S.W. loc. cit. 204(1).

      . Erbes, supra, 353 S.W.2d loc. cit. 664; Lebow, supra, 270 S.W.2d loc. cit. 715; Thornton v. Union Elec. Light & Power Co., 230 Mo.App. 637, 644, 72 S.W.2d 161, 163; Kessler v. West Missouri Power Co., 221 Mo.App. 644, 650(3), 283 S.W. 705, 708(3).

      . See also Perrine v. Pacific Gas & Elec. Co., 186 Cal.App.2d 442, 9 Cal.Rptr. 45, 49(7); Sweatman v. Los Angeles Gas & Elec. Corp., 101 Cal.App. 318, 281 P. 677, 678; Rudd v. Public Service Co. of Okla., D.C.Okla., 126 F.Supp. 722, 724 (8), 725 (footnote 9); Hall v. Lorain-Medina Rural Elec. Co-op., 104 Ohio App. 278, 148 N.E.2d 232, 236(3); Richmond v. Florida Power & Light Co., Fla., 58 So.2d 687, 688(2); Dudding v. Florida Keys Elec. Co-op. Ass’n., Fla.App., 105 So.2d 597, 599; 18 Am.Jur., Electricity, § 53, p. 448.

      . In all of the kiteflying eases found in other jurisdictions, recovery has been denied as a matter of law. Watral’s Adm’r. v. Appalachian Power Co., 273 Ky. 25, 115 S.W.2d 372; Pugh v. Tidewater Power Co., 237 N.C. 693, 75 S.E.2d 766; Littleton v. Alabama Power Co., 243 Ala. 492, 10 So.2d 757; Kedziora v. Washington Water Power Co., 193 Wash. 51, 74 P.2d 898; Dilley v. Iowa Public Service Co., 210 Iowa 1332, 227 N.W. 173, 175; Richmond, supra note 6.

      . Erbes, supra note 3; Potter v. Sac-Osage Elec. Coop., Inc., Mo., 335 S.W.2d 192; Lebow, supra note 1; Thompson v. City of Lamar, 322 Mo. 514, 17 S.W.2d 960; Hickman v. Union Elec. Light & Power Co., Mo., 226 S.W. 570; Ryan v. St. Louis Transit Co., 190 Mo. 621, 89 S.W. 865, 2 L.R.A. (N.S.) 777; Geismann v. Missouri-Edison Elec. Co., 173 Mo. 654, 73 S.W. 654; Jamison v. Kansas City, 223 Mo.App. 684, 17 S.W.2d 621.

      . Gladden v. Missouri Public Service Co., Mo., 277 S.W.2d 510; Shannon, supra note 1; Godfrey, supra note 4; Williams, supra note 4; Beckwith v. City of Malden, 212 Mo.App. 488, 253 S.W. 17.

      . Gellert v. Missouri Service Co., Mo., 221 S.W.2d 177; Pulsifer v. City of Albany, 226 Mo.App. 529, 47 S.W.2d 233; Grady, supra note 3; Faris v. Lawrence County Water, Light & Cold Storage Co., Mo.App., 198 S.W. 449.

      . Laudwig, supra note 3; Davis v. Missouri Elec. Power Co., Mo.App., 88 S.W.2d 217, certiorari quashed State ex rel. Missouri Elec. Power Co. v. Allen, 340 Mo. 44, 100 S.W.2d 868; Blackburn, supra note 3.

      . Stanley v. Town of Smithfield, 211 N.C. 386, 190 S.E. 207; Callaway v. Central Georgia Power Co., 43 Ga.App. 820, 160 S.E. 703; Green v. West Penn Rys. Co., 240 Pa. 340, 92 A. 341, L.R.A.1915C, 151; Trout v. Philadelphia Elec. Co., 236 Pa. 506, 84 A. 967, 42 L.R.A.(N.S.) 713; Stark v. Muskegon Traction & Lighting Co., 141 Mich. 575, 104 N.W. 1100, 1 L.R.A. (N.S.) 822; Kelley v. Texas Utilities Co., Tex.Civ.App., 115 S.W.2d 1233, error dismissed; Ball v. Gulf States Utilities Co., Tex.Civ.App., 123 S.W.2d 937, error dismissed; Fredericks’ Adm’r. v. Kentucky Utilities Co., 276 Ky. 13, 122 S.W.2d 1000; Kempf v. Spokane & I. E. R. Co., 82 Wash. 263, 144 P. 77, L.R.A.1915C 405; Musser v. Norfolk & W. Ry. Co., 122 W.Va. 365, 9 S.E.2d 524; Rand v. Long Island R. Co., 197 Misc. 744, 95 N.Y.S.2d 688. Consult also Alabama Power Co. v. Cooper, 229 Ala. 318, 156 So. 854; Davis v. Carolina Power & Light Co., 238 N.C. 106, 76 S.E.2d 378; Hassett v. Palmer, 126 Conn. 468, 12 A.2d 646, 650(6).


source: Caselaw Access Project

author: CULVER, Justice.

license: Public Domain

text:
    Mrs. Ila Mae KRUEGER, Petitioner, v. Mrs. Exa WILLIAMS, Respondent.
    No. A-8806.
    Supreme Court of Texas.
    June 20, 1962.

      Abney, Hammett & Lynch, J. V. Hammett, Lampasas (let record show this firm appeared in Supreme Court only), Chas. K. Word, Meridian, Cureton & Cureton, Meridian, for petitioner.
    Byron L. McClellan and Robert W. Brown, Gatesville, for respondent.
   CULVER, Justice.

In Hilley v. Hilley, we expressly reserved for later decision the validity vel non of the survivorship right provided for in the case where bonds or certificates are purchased by the husband with community funds and issued in his name and that of some third person as co-owners. That question is here raised.

This case was tried upon an agreed statement of facts. Some five years before his death W. T. Williams purchased an investment share account in the principal sum of $10,000.00 from a savings and loan association. The certificate was issued in the name of W. T. Williams and/or Mrs. Ila Mae Krueger who was the daughter of Mr. Williams by a prior marriage. The certificate is not in evidence, but the receipt card recites “W. T. Williams and/or Ila Mae Krueger or payable to the survivor of either”. Mr. Williams signed his name and that of Mrs. Krueger on the card. Shortly after her father’s death Mrs. Krue-ger surrendered the certificate to the savings and loan association and on her demand the proceeds were paid to her. Later Mrs. Krueger as executrix of her father’s will filed an inventory and appraisement of the estate setting out the facts with reference to the certificate and claiming the proceeds to be her individual property and not an asset of the estate. Over the objections of the surviving wife, Mrs. Exa Williams, the County Judge approved the inventory and appraisement. From that order Mrs. Williams took an appeal.

The district court decreed that the inventory should be corrected by the addition of $5,000.00 to the assets of the community estate, holding in effect that half of the proceeds of the certificate belonged to Mrs. Krueger as a gift from her father and half to the community. That court rejected the contention of Mrs. Krueger that the terms of the certificate created in her the right of survivorship, concluding that the parties failed to comply with the provisions of § 46 of the Probate Code, V.A.T.S., in that the written instrument was not signed by each of them. The Court of Civil Appeals reversed and rendered judgment directing that the entire proceeds of the certificate be inventoried as a community asset of the estate. 351 S.W.2d 932.

Although the inventory of the estate filed in the probate court is not conclusive of the title to the property therein listed or omitted, it is prima facie evidence of that fact. White v. Shepperd, 16 Tex. 163; Moore v. Wooten (Tex.Com.App.) 280 S.W. 742 (1926).

We are of the opinion that the order of the probate court in this respect was appealable. Section 28, Probate Code, provides in part as follows: “Any person who may consider himself aggrieved by any decision, order, decree, or judgment of the court shall have the right to appeal therefrom to the district court of the county.” See also Moore v. Mertz, 1905, 38 Tex.Civ.App. 283, 85 S.W. 312, no writ history; Dulaney v. Walsh, 90 Tex. 329, 38 S.W. 748; Brown v. Fleming (Tex.Com.App.) 1919, 212 S.W. 483.

The principal holding made by the Court of Civil Appeals was that this transaction did not constitute a gift in praesenti by Mr. Williams to Mrs. Krueger, and the court incidentally observed that no attack was made on the trial court’s determination that the evidence failed to establish a joint tenancy and survivorship contract. From an inspection of the briefs filed in the Court of Civil Appeals it appears that Mrs. Krue-ger raised that issue by counter point. While wé agree that the transaction did not constitute a present gift to Mrs. Krue-ger of either half or all of the certificate proceeds nevertheless we are concerned with Mrs. Krueger’s claim of a survivor-ship right to the entire proceeds.

While some contention is made to the contrary by Mrs. Krueger, we will assume that the funds used to purchase this certificate belonged to the community estate of Mr. Williams and his surviving wife since admittedly separate funds of Mr. Williams and those belonging to the community estate had been commingled over the years of that marriage in the joint bank account. The check given to the association was drawn on this account.

It is well settled in this state that in the absence of fraud upon the wife the husband has the sole right of control and disposition of the community property as he sees fit. Martin v. McAllister, 94 Tex. 567, 63 S.W. 624, 56 L.R.A. 585; Volunteer State Life Ins. Co. v. Hardin, 145 Tex. 245, 197 S.W.2d 105, 168 A.L.R. 337. There is no claim of fraud here except it is asserted that this certificate purchase transaction constitutes constructive fraud upon the wife in depriving her of a portion of the community estate to which she would be otherwise entitled.

The evidence, in our opinion, fails to show fraud either actual or constructive, but rather the contrary affirmatively appears. At the time of his marriage to Mrs. Exa Williams, Mr. Williams was possessed of substantial separate property. There was in his bank account then something over $5,000.00. The account did not fall below that figure during the period that intervened up to the time of the purchase of the certificate when there was $19,000.00 in the account. Some time after the purchase of the certificate Mr. Williams sold certain of his separate real property for a consideration in excess of $10,000.00 and deposited the proceeds in the joint bank account. In his will he provided that his wife should take the one-half of their community property to which she was entitled under the law and in addition he devised and bequeathed to her one-fourth of all the property that he might own or be interested in at the time of his death. According to the inventory this one-fourth will amount to approximately $5,000.00. The three-fourths remaining he devised and bequeathed to his daughter, Mrs. Krueger, and to the children of a deceased child of the former marriage. No children were born to Mr. Williams and Mrs. Exa Williams.

Absent fraud it seems to be clear from the decisions relating to this problem that the status of the funds used to purchase the property, that is, whether it is community or separate, is immaterial and of no importance except in the husband and wife situation as presented in Hilley. Therefore, since no fraud is shown here the holdings in Chandler v. Kountze, Tex.Civ.App., 130 S.W.2d 327, er. ref.; Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823, 158 A.L.R. 470; Adams v. Jones, Tex.Civ.App., 258 S.W.2d 401; Chamberlain v. Robinson, Tex.Civ.App., 305 S.W.2d 817, er. ref.; Johnson v. Johnson, Tex.Civ.App., 306 S.W.2d 780, er. ref., and McFarland v. Phillips, Tex.Civ.App., 253 S.W.2d 953, n. r. e., have some application to this sur-vivorship problem.

In Chandler v. Kountze, where there was a conveyance of land to Kountze and another “as joint tenants, with all the rights of such tenants at common law, including the right of survivorship”, the right of sur-vivorship was upheld. The opinion in that case cited with approval Holt v. Bayles, 85 Utah 364, 30 P.2d 715, 718, wherein one party claimed the proceeds of a bank account under an agreement with the deceased that the entire remainder of such bank account should go to the survivor and the claim was upheld as follows:

“Where there is a joint agreement executed by the parties which clearly declares the intention to create a joint interest of each in the deposit or credit, the courts will sustain such intention thus expressed.”

In Edds v. Mitchell at issue was the ownership of certain United States Savings Bonds that were payable to Julia E. Rhode and on her death to Retta B. Edds. The court adjudicated the ownership of these bonds to be in the beneficiary without reference to the contention that this result would follow because of the supremacy of the federal statute and the U. S. Treasury regulations. The ownership in the beneficiary was predicated on the rule that a third person for whose benefit a contract is made whether he is a creditor or a donee has a right that he may enforce against the promisor. In so holding the court adopted the following language from Reynolds v. Danco, 134 N.J.Eq. 560, 36 A.2d 420, 421:

“There was here * * * a contract between the decedent and the government, by the terms of which the defendant, as registered beneficiary, acquired a present vested though defeasi-ble interest contemporaneous with the superior rights of the decedent, and his death terminated his rights and left the defendant with an indefeasible ownership entitling her to demand payment of the proceeds.”

In Davis v. East Texas Savings & Loan Association, Tex., 354 S.W.2d 926, where a savings and loan stock certificate was issued in the name of the husband or wife and a signature card was signed by each stating that the certificate was held by them as joint tenants with the right of survivor-ship, we recently held, that upon the death of the husband, the wife became the owner of the proceeds of the certificate as her separate property on the theory that the contract made by Davis with the association in respect to his separate funds was a valid and enforceable contract for the benefit of the third party.

The case here does not embrace the terms of such a contract as the one made with the government in Edds v. Mitchell nor that made with the savings and loan association in Davis v. East Texas, nor does it lie within the provisions of § 46 of the Probate Code. The evidence does not even reveal whether or not Mrs. Krue-ger knew prior to her father’s death of the purchase of the certificate. In our opinion the recitation falls short of expressing a clear intention to vest the absolute right of the ownership of the funds in the survivor.

In Staver’s Estate, 218 Wis. 114, 260 N.W. 655 (1935), the right of the survivor to the proceeds of a certificate of deposit made payable to Joseph Staver or Frank J. Staver was upheld. The court pointed out that in the absence of clear evidence that the contract was a convenience account or was created under an express agreement that the third party would hold the proceeds for the benefit of the depositor or his heirs, the complete ownership must be held to be in the survivor. See also In re Pfeifer’s Estate, 1 Wis.2d 609, 85 N.W.2d 370; Erwin v. Felter, 283 Ill. 36, 119 N.E. 926, L.R.A. 1918E, 776.

In Holbrook v. Hendrick’s Estate, 175 Or. 159, 152 P.2d 573 (1944), the agreement setting up a joint bank account read “to us, or either of us, or to the survivor of us”. This provision was held to be some evidence of an intention on the part of the survivor to make a gift of a joint interest in the account that would suffice to make out a prima facie case in favor of the survivor asserting such an interest. This theory finds support in Castle v. Wightman, 303 Mass. 74, 20 N.E.2d 436 (1939); Tangren v. Ingalls, 12 Utah 2d 388, 367 P.2d 179 (1961); In re Estate of Mueth, 33 Ill.App.2d 449, 179 N.E.2d 695 (1962).

Other jurisdictions hold that the burden rests upon the survivor to prove that the deposit was not merely a convenience account. Cournoyer v. Monadnock Savings Bank, 98 N.H. 385, 102 A.2d 910 (1953); Barbour v. First Citizens Bank, 77 S.D. 106, 86 N.W.2d 526 (1957); King v. Merryman, 196 Va. 844, 86 S.E.2d 141 (1955); In re Elliott’s Estate, 378 Pa. 495, 106 A.2d 453 (1954).

We therefore hold that the County Judge correctly approved the inventory and appraisement as filed by the executrix. The judgments of the trial court and the Court of Civil Appeals are both reversed and the District Clerk of Bosque County is directed to certify this judgment to the County Court for observance.

      . 161 Tex. 569, 342 S.W.2d 565.

      . By statute in New Hampshire the presumption has been reversed. Chretien v. Duhaime, 100 N.H. 254, 124 A.2d 208 (1956).


author: BELCHER, Commissioner.

text:
    Edward George HAYNES, Appellant, v. The STATE of Texas, Appellee.
    No. 34524.
    Court of Criminal Appeals of Texas.
    May 23, 1962.
    Rehearing Denied June 27, 1962.

      Murray J. Howze, Monahans, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for assault with intent to murder without malice; the punishment, three years.

The appellant challenges the sufficiency of the evidence to support the conviction on the ground that there is no evidence that he had the intent to kill the injured party.

The injured party, Willie Anderson, testified that appellant’s step-mother called to him from across the street to come and take her husband to the hospital. When he got inside the trailer house, the appellant had a butcher knife in his hand and was trying to stab his father, whom he had down on the bed, and his father’s hand was bleeding. The injured party grabbed the appellant and pulled him out of the trailer. He then told the appellant, who still had the knife in his hand, that he ought to be ashamed of jumping on his father; that as he turned to walk away the appellant cut him with the butcher knife, and he held his stomach with his hands as he ■walked a short distance for help and then was taken to a hospital.

Mrs. Anderson, the wife of the injured party, testified that after her husband took the appellant from the trailer house the appellant cut Anderson as he turned to walk away, and then the appellant ran from the scene.

Officer Chumley testified that when he arrived at the scene the appellant handed him .a butcher knife and said to him, “I’ve gone and messed up. * * * I think I’ve stabbed a man”, and Chumley identified the knife introduced in evidence as the one the appellant gave to him.

In appellant’s written statement made to Sheriff Cumbie, which was introduced in evidence, the appellant stated that “as he turned around I cut at him with the butcher knife”.

The testimony of a physician who examined the injured party at the hospital shows that he suffered an incision two inches long and through the abdominal wall which cut the colon and caused a small length of the intestine to protrude; that the wound was serious, and two surgical operations were performed; that he remained in the hospital for one month and three days, and was under medical treatment about ten weeks; and that the knife exhibited to him at the trial was capable of causing death.

Testifying in his own behalf, the appellant stated that he and his wife had an argument and scuffle in the trailer house; and that she was using a beer bottle and he grabbed the knife to keep her from getting it; then his father intervened, but that he did not try to stab his father or have him down at anytime. He denied that the injured party ever came into the trailer house, that he had had trouble with Anderson the previous day, and that Anderson had threatened to whip him. After appellant had walked out of the trailer house, Anderson came and he told Anderson to leave him alone; then Anderson said wait until he returned, and not knowing what Anderson was going to do he tapped him on the shoulder and talked to him, and Anderson grabbed his stomach and he ran; that “I guess I” cut him as he was scared of Anderson, and that he told the officer “I think I have cut a man.”

The testimony of appellant’s wife, his father and step-mother, and another witness corroborated the testimony of the appellant.

The evidence is sufficient to support the conviction of the appellant as charged.

The other contentions presented have been considered, and they do not show error.

The judgment is affirmed.

Opinion approved by the Court.


author: GRISSOM, Chief Justice.

text:
    John Fleetwood OGLETREE, Appellant, v. Margie Bolding CRATES et vir, Appellees.
    No. 3726.
    Court of Civil Appeals of Texas. Eastland.
    June 8, 1962.
    Rehearing Denied. July 27, 1962.
    Lola L. Bonner, Rockport, Young, Young & Daggett, Houston, for appellant.
    Fischer, Wood, Burney & Nesbitt, Corpus Christi, Wade & Wade, Beeville, Ellis L. Clark, Rockport, John H. Flinn, Sinton,. for appellees.
   GRISSOM, Chief Justice.

In August,- 1957, John Fleetwood Ogle-tree and his wife, Margie Bolding Ogle-tree, obtained their second divorce in Alabama. That judgment awarded Mr. Ogle-tree custody of their minor son ten months-of each year. That custody judgment was-based upon an agreement of the parents filed with the court and made a part of the judgment. In September, 1958, the same-Alabama court, in the same case, dismissed' Mrs. Ogletree’s petition and her husband’s-cross-petition seeking to modify said judgment. In July, 1960, the mother filed a habeas corpus proceeding in Hams County seeking custody of the child. In each of' the last named proceedings the court refused to change the custody arrangement as fixed in the divorce case, which custody judgment was based upon the parents’’ written agreement.

In 1961, the mother failed to return the-boy, then six years of age, to his father at the expiration of her two months’ period1 of custody under the 1957 Alabama judgment and the father filed a petition of habeas corpus in the District Court of Aransas County, where the mother and child were temporarily staying. The father asserted he was entitled to custody by virtue of the Alabama judgment. The mother, joined by her present husband, answered that Mr. Ogletree procured the 1957 Alabama custody agreement and judgment by duress and by fraud practiced upon her and the Alabama court. She further alleged that there had been a material change of conditions affecting the welfare and best interest of the child since the entry of said custody decree. Mr. Ogletree excepted to the allegation of fraud in obtaining that judgment because it constituted a collateral attack on the Alabama judgment; because said answer contained allegations of matters previously adjudicated in both Alabama and Texas, and constituted an attempt to go behind prior adjudications of the same subject matter. Mr. Ogletree alleged that since rendition of the Alabama judgment in 1957, said subject matter had been litigated in Alabama and Texas; that the mother had filed a petition, in 1958, in the same court in Alabama requesting the court to change the custody, which was denied; that she filed a habeas corpus proceeding in Harris County, Texas, in 1960, requesting the court to change the custody and that said court refused to change the custody. Said exceptions were overruled.

In a trial to the court, judgment was rendered denying Mr. Ogletree’s application for a writ of habeas corpus and awarding entire custody to the mother. Mr. Ogletree has appealed.

Appellant contends the court erred in overruling his exception to appellees’ answer because same contained (1) allegations of fraud, which constituted a collateral attack upon the 1957 Alabama custody judgment, (2) allegations of matters previously adjudicated in Alabama and Texas courts, and was an attempt to go behind prior adjudications of the same subject matter between the same parties and (3) that her answer contained allegations of changed conditions which had been previously adjudicated. Appellant also contends the court erred in assuming, or continuing to exercise, jurisdiction after the filing of appellees’ answer because it advised the court that appellees were domiciled in Alabama and not within the jurisdiction of the court; that the court erred in failing to give full faith and credit to the two Alabama judgments and that the Alabama and Harris County, Texas, judgments were res judicata of all questions concerning custody which could have been raised at the time of said adjudications. Appellant further presents points to the effect that the evidence did not show a material change of conditions affecting the welfare of the child sufficient to warrant a change of custody since the determination of custody by the judgments mentioned.

If the validity of the judgment depended upon a showing of a material change of conditions affecting the welfare of the child since rendition of said judgments we would be compelled to reverse the judgment because the record does not show such change. See Short v. Short, (Sup.Ct), 354 S.W.2d 933; Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787; Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016. We conclude, however, that the court had jurisdiction and authority to pass upon the attack on the Alabama custody judgment and to change the custody. In answer to appellant’s suit for custody, based upon the Alabama judgment, the Aransas County, Texas, court had jurisdiction and authority to determine, as it did, that the Alabama judgment was procured by fraud, to set that custody judgment aside and award custody to the mother. The generally accepted view is that the judgment of one state may be impeached for fraud in its procurement when sued upon in another. 55 A.L.R.2d 680. That is the law in Texas. In Drinkard v. Ingram, 21 Tex. 650, 73 Am.Dec. 250, the Supreme Court of Texas, in 1858, held that a person sued in Texas upon an Alabama judgment could defend by showing that the judgments sought to be enforced in Texas had been fraudulently obtained. It further held that the defendant was not deprived of such defense by a failure to show that he was not guilty of laches. See also Babcock v. Marshall, 21 Tex.Civ.App. 145, 50 S.W. 728; Dyer v. Johnson, Tex.Civ.App., 19 S.W.2d 421; 3 Freeman on Judgments, 5th Ed., Sec. 1183; Cole v. Cunningham, 133 U.S. 107, 10 S.Ct. 269, 33 L.Ed. 538; Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95; Richmond v. Sangster, Tex.Civ.App., 217 S.W. 723; Hare v. Reily, Tex.Civ.App., 269 S.W. 473; Vann v. Calcasieu Trust & Savings Bank, Tex.Civ.App., 204 S.W. 1062; Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293.

We have carefully considered all of appellant’s points. We conclude that reversible error is not shown. The judgment is affirmed.


author: ARCHER, Chief Justice.

text:
    J. M. FALKNER, Banking Commissioner, et al., Appellants, v. GIBRALTAR SAVINGS & LOAN ASSOCIATION, Appellee.
    No. 10992.
    Court of Civil Appeals of Texas. Austin.
    July 11, 1962.
    Rehearing Denied July 25, 1962.
    Will Wilson, Atty. Gen., Bob E. Shannon, Coleman Gay, III, Asst. Attys. Gen., Austin, Fulbright, Crooker, Freeman, Bates & Jaworski, Gibson Gayle, Jr., Houston, Clark, Thomas, Harris, Denius & Winters, James H. Keahey, Austin, for appellants.
    Monteith, Baring & Monteith, Houston, Graves, Dougherty, Gee & Hearon, Austin, for appellee.
   ARCHER, Chief Justice.

This is an appeal from a judgment of the District Court holding that an order of the Banking Commissioner dated July 29, 1958 denying the application of Gibraltar Savings and Loan Association, appellee, to maintain a branch office at a specified location in Houston was not reasonably supported by substantial evidence and is illegal and setting such order aside.

On February 12, 1958 appellee made application to the Banking Commissioner “to open an additional office in the proposed Smith-Hofheinz Shopping City, located in the vicinity of Westheimer and Sage Roads, Houston, Texas.” Hearing was held on such application before the Banking Commissioner in Austin, Texas, on June 12, 1958. On July 29, 1958 the Banking Commissioner entered his order denying the application.

Appellee then brought this action, alleging that such denial was “arbitrary, discriminatory and capricious.” Appellant San Jacinto Savings & Loan Association, having been a protestant at the hearing upon the application, intervened in support •of the Banking Commissioner’s denial. The Attorney General moved for summary judgment on the basis that:

“(3) That at the time Defendant Falkner declined Plaintiff’s application for said branch, the said Smith-Hof-heinz Shopping City had not been built, and that the application for said "branch was declined specifically for that reason.
“(4) That, as a matter of law, the fact that a branch is applied for in an undeveloped shopping center is sufficient ground for declining such application on the ground that establishment of such branch in an undeveloped shopping center would not promote the public convenience and advantage, as required by Article 881a-2, V.A.C.S.”

Such Motion for Summary Judgment was denied and the parties went to trial on December 4, 1961, on the plaintiff’s third amended original petition and trial amendment thereto. On January 15, 1962, the Trial Court entered its judgment, holding “that the said order of defendant Banking Commissioner and his acts in connection therewith did not deny plaintiff due process of law” but that “the order of defendant Banking Commissioner dated July 29, 1958 denying plaintiff’s application to maintain a branch office of its association is not reasonably supported by substantial evidence and is invalid, illegal, void and of no binding effect and is hereby set aside.”

The appeal is based on two points of error as follows:

“Point One. The Trial Court erred in overruling the Attorney General’s motion for summary judgment.
“Point Two. The Trial Court erred in holding that the Banking Commissioner’s denial is not reasonably supported by substantial evidence.”

The prime issue in this case, conceding procedural sufficiency, is whether the action of the Commissioner in denying the application was supported by substantial evidence.

The applicant, appellee herein, had the burden of proving, under the provisions of Art. 881a-2, and other related sections as are set out, before or to the Commissioner the sufficiency of the facilities to serve the public convenience and advantage in the neighborhood proposed to be served, and that the volume of business there is such as to indicate a profitable operation; that the proposed operation will not unduly injure any other association operating in the area; that the proposed location is within the same county as the home office of the applying association and that there is no other association adequately serving the neighborhood.

The character of the application, its required contents and recitations, are fully set out in the statute, and in a number of cases such as Falkner v. Gibraltar Savings Association, Tex.Civ.App., 348 S.W.2d 467, error ref., N.R.E., and we do not restate the several requirements.

The appellee applied for a branch location as we have hereinabove set out in 1958 in a shopping center which had not then been constructed and which has not been built or started now, some four years later.

The Trial Court, in the judgment, found:

“It is further ORDERED, ADJUDGED and DECREED that Acts 1929, 41st Legislature, 2d. Called Session, page 100 as codified by Vernon’s as Article 881a-2, V.A.T.S. and Article 1136a-9, V.A.P.C. is constitutional; and that the said order of defendant Banking Commissioner and his acts in connection therewith did not deny plaintiff due process of law.
“It is further ORDERED, ADJUDGED and DECREED that the order of defendant Banking Commissioner dated July 29, 1958, denying plaintiff’s application to maintain a branch office of its association is not reasonably supported by substantial evidence and is invalid, illegal, void and of no binding effect and is hereby set aside.
“It is further ORDERED, ADJUDGED and DECREED that defendants are enjoined from enforcing said order and from issuing any orders or taking any further action that will interfere with the opening of plaintiff’s said office and that defendant R. A. Benson, as Savings & Loan Commissioner of Texas and successor in administrative control to defendant J. M. Fallcner, is directed to enter a proper order in the premises; * * * ”

We shall attempt to review the record, although the statement of facts contains 871 pages with many exhibits, in as brief a manner as we can consistent with a full consideration in an effort to determine if the order of the Commissioner denying the application to maintain a branch office of its association is .reasonably supported by substantial evidence, bearing in mind that it was the conditions existing at the time the application was made that are controlling.

The application dated February 12, 1958 reads in part:

“We hereby make application to open an additional office in the proposed Smith-Hofheinz Shopping City, located in the vicinity of Westheimer and Sage Roads, Houston, Texas.”

From the statements in the application and in the accompanying verifications as to place of location and area to be served it is to us apparent that the branch was-to be situated in the Smith-Hofheinz Shopping City, located in the vicinity of West-heimer and Sage Roads. The Shopping City was not then under construction and according to statements in appellants’' brief, building is not now going on.

The Commissioner found that there was-not a sufficient volume of business to render the operation profitable and that there was another association in the area which would be injured by the operation of the proposed branch.

The denial of the application is as follows :

“EXHIBIT B-l DEPARTMENT OF BANKING
“Austin 14, Texas
“July 29, 1958
“J. M. FALKNER
“COMMISSIONER
“Gibraltar Savings and Loan Association
“Houston, Texas
“RE: Application for branch office — Smith-Hofheinz Shopping Area, Houston Texas
“Dear Sirs:
“Your application to establish a branch in the Smith-Hofheinz Shopping Area is declined for the following reason:
“The application is for a branch in an undeveloped shopping center, which would indicate that the volume of business that could be developed would be insufficient to render the operation profitable and, further, there appears to be facilities available to the public within a distance of approximately two (2) miles. We regret that the application does not in our opinion merit favorable action.
“Yours very truly,
“s/ J. M. Falkner
“Commissioner.”

Some days later in reply to a letter from an attorney for Gibraltar concerning some misunderstanding, the Commissioner wrote the following letter:

“EXHIBIT E — DEPARTMENT OF BANKING
“Austin 14, Texas
“August 1, 1958
“J. M. FALKNER
“COMMISSIONER
“Mr. Edgar W. Monteith,
Attorney at Law
■“Monteith, Baring and Monteith
■“Gibraltar Building
■“Houston 2, Texas
■“Dear Mr. Monteith:
“This will acknowledge receipt of ■our letter of July 31 with reference to our action in declining the application of the Gibraltar Savings and Loan Association, Houston, Texas, to establish a branch office in the Smith-Hof-heinz Shopping Area.
“Apparently, there was some misunderstanding as to this application. I had reference to the trial of the case in the District Court here in Austin. As a matter of fact our attorneys suggested to me that action be taken on pending applications to establish branches when the final outcome of the trial in the local District Court became known. Our action in declining this application does not in our opinion preclude the Gibraltar from filing an application to establish a branch at some later date. We regret this misunderstanding, but we see no way of undoing what has already been done.
“Yours very truly,
“s/ J. M. Falkner
“Commissioner.”

We believe that there was substantial evidence to support the action of the Commissioner in denying the application.

V. P. Ringer, a real estate broker, appraiser and a member of the Planning and Zoning Commission of Houston, testified as to the trade area, showing the land used in such area as residential, commercial, industrial and public properties. The shopping centers as of July, 1958, were given and the size of each, one of which was Highland Village adjacent to which is located the San Jacinto Savings & Loan Association’s Highland Village Branch and which is within a two mile radius of the proposed branch. The witness testified in part as follows:

“Q Then from your testimony, Mr. Ringer, would you state whether or not it would be your conclusion that the trade area, as an eight mile circle there, would tend to attract some of the same customers that at the present time come to the Highland Village Shopping Center; would that be correct?
“A Well, it certainly would get some percentage of those customers, yes, sir.
* * * * * *
“Q Do you feel that the Smith-Hofheinz Shopping Center would kill the River' Oaks Shopping Center, Mr. Ringer ?
“A You mean had the Smith-Hof-heinz Shopping City been constructed?
“Q Yes, sir, as proposed, in the times that we have been talking about.
“A I think it would have been a tremendous competitive problem to everything within that eight mile radius.”

Various population density maps were introduced showing the trade area but we do not embody such herein.

Further Mr. Ringer testified:

“Q As of July, 1958, was the Smith-Hofheinz Shopping Center completed?
“A No, sir.
“Q As of July, 1958, had construction begun on the Smith-Hofheinz Shopping Center.
“A No, sir.
“Q As of July, 1958, what was out there on the site of the proposed Smith-Hofheinz Shopping Center; were there any buildings ?
“A No, sir, no buildings.
“Q Was it just vacant land?
“A Vacant land.
“Q Assuming that there were not comparable facilities west on West-heimer, west of Highland Village, your statement is that people would come on in to the Highland Village Shopping Center, is that correct?
“A Yes, sir.”

The witness testified that the railroad did not constitute a barrier to vehicular traffic coming east on San Felipe, West-heimer and Richmond Streets, or a barrier to the development of land or the progress thereof from east of the tracts to west of the tracts, and that the presence of the T. & N. O. Railroad tracts at the crossing of Westheimer going into the Highland Village Shopping Center did constitute or would be a barrier to shoppers coming from the west of the tract to the Highland Village. In the statement of facts more than 100 pages of questions and answers of Mr. Ringer is taken up and we cannot recite or state such in more detail, but the Commissioner heard the witnesses and examined the submitted exhibits.

Stanley Silvus, Vice President of San Jacinto Savings & Loan Association, testified as to his training and experience and employment by various loan organizations, whose testimony is reflected on more than 130 pages of the statement of facts and we shall endeavor to recite only such as-appears to be necessary in this case. The witness testified that in July, 1958 San Jacinto had two offices, one at 2917 Luell Street, the other at 3733 Westheimer which opened in Highland Village in March, 1957, and detailed accounts coming from other institutions; that on June 30, 1958 the branch had total accounts of $700,000.00- and that the operation at that time was not profitable. Mr. Silvus testified further that the opening of the appellee’s branch at the Smith-Hofheinz Shopping Center would' have a detrimental effect on San Jacinto’s operation and testified more specifically that:

“Q Mr. Silvus, as of June or July of 1958, in your opinion would the location of another savings and loan association in the trade area delineated' on Defendants’ Exhibit No. 6 have been detrimental to your savings and loan association already there?
“A We think so.
“Q How would it? Would you develop that answer?
“A Well, we think that any other operation in that area would have divided the potential savings and naturally that would have hurt us. We located on Westheimer Street because it is a through thoroughfare, coming from the extreme part of Western Houston into the City of Houston. It carries tremendous traffic — it always has, and we feel that any association office a westerly direction from our officer location would have tended to attract savings accounts from us.
“Q Based upon your knowledge of the savings and loan business and the knowledge of facilities that you offer to the public, do you have an opinion of whether or not that facility was sufficient to take care of the savers who desired to make savings and loan association accounts and to ask for loans in this area as of 1958 ?
* * * * * *
“A We felt that our Westheimer office was adequate to serve the area and was serving the area.
“Q Prior to June, 1958, did you have knowledge of the proposed Smith-Hofheinz Shopping Center?
“A Yes, we did.
“Q Will you state briefly the location of the proposed center?
“A It was west of our office on the —the tract actually faced on West-heimer, and it was in a due westerly direction from our location.
“Q As of June or July, 1958, was construction actually begun on the Smith-Hofheinz Shopping Center?
“A No, sir.
“Q How about as of September, 1958?
“A No, sir.
“Q Would you state whether or not there was any construction of any character whatsoever on the 110 acres as of June or July, 1958?
“A No, sir.
⅝ ⅝ ⅜ ⅜ ⅜ #
“Q Why did San Jacinto Savings and Loan wish to protest the application for this Smith-Hofheinz Branch?
“A We felt that it would be detrimental to the operation of our West-heimer office, being so closely related to the area in which we served.
“Q What was your protest?
⅜ ⅝ ⅝ ⅝ ⅜ *
“A We protested on the basis that I just mentioned — that Westheimer is a very heavily traveled traffic artery. That their operation of a branch office in the Smith-Hofheinz Center, being in a westerly direction from our office, would definitely tend to take savings accounts from our operations, and that we did not feel that another savings office in that general area would be sufficient for an extended time to justify the operation of the proposed office.”

Appellee herein offered evidence by Walter Phillips, its President, who testified concerning the making of the application and that he was familiar with its contents and statements and that all were true; that he was acquainted with the general area and average income of the residents, population, the area to be served, and the freeway and street system. The testimony of this witness is contained in more than 60 pages.

There was much additional testimony by witnesses: Dr. John P. Owen, Chief of Bureau of Business and Economic Research at the University of Houston; Thomas A. Willier, a professional traffic consultant in New York and Houston, and a number of others whose qualifications are not in doubt. The testimony of these several witnesses were as to the growth of Houston, building permits and value thereof, income, loans, etc.

We do not review the evidence of the witnesses for the appellee, except to state that such evidence was in conflict generally with that of the appellants, but we cannot choose between conflicting expert opinions and evidence, to do so would be to usurp the functions of the Commissioner, and since there was substantial evidence to support the action of the Commissioner, we believe that the Trial Court erred in setting aside the order of the Banking Commissioner. Gibraltar Savings Association v. Falkner, Tex., 351 S.W.2d 534; Farb v. State Banking Board, Tex.Civ.App., 343 S.W.2d 508, no writ history; Railroad Commission of Texas v. Gardner, Tex.Civ.App., 338 S.W.2d 753, error ref., N.R.E.

The judgment of the Trial Court is reversed and judgment rendered that appellee take nothing.

Reversed and rendered.

RICHARDS, J., not sitting.


author: RICHARDS, Justice.

text:
    TARRY MOVING & STORAGE CO., Inc., et al., Appellants, v. RAILROAD COMMISSION of Texas et al., Appellees.
    No. 10993.
    Court of Civil Appeals of Texas. Austin.
    July 11, 1962.
    Rehearing Denied July 25, 1962.

      Christopher & Bailey, Fort Worth, for appellants.
    Will Wilson, Atty. Gen., Marvin F. Sen-te 11, Asst. A tty. Gen., Lanham & Hatchell, Austin, for appellees.
   RICHARDS, Justice.

This appeal involves the validity of three orders of the Railroad Commission of Texas dividing Specialized Motor Carrier Certificate No. 9233 into three separate certificates or authorities for the purpose of enabling James H. Jeter, its owner, to sell the separated authorities to Alex J. Hafmeister, Wayne K. Horton and R. C. Albert, the Railroad Commission, Jeter, Hafmeister, Horton and Albert being appellees herein. Tarry Moving & Storage Company, Jack Albright, Joe L. Baker and A. G. Duncan, a partnership, and B. A. Benthol, appellants, who appeared before the Railroad Commission and protested the issuance of the orders authorizing the division and sale of parts of the authority contained in Certificate No. 9233, filed three separate suits in the 98th Judicial District Court of Travis County as appeals from the orders of the Railroad Commission under the provisions of See. 20, Art. 911b, Vernon’s Civil Statutes. The suits were consolidated into this action for the purpose of trial. After trial before the Court without a jury, judgment was rendered that appellants “take nothing”, from which judgment they have perfected this appeal.

On October 21, 1957 the Railroad Commission of Texas, pursuant to its orders entered September 19, 1956 and September 26, 1957, issued consolidated Specialized Motor Carrier Certificate of convenience and necessity No. 9233 to James H. Jeter authorizing him to operate specialized motor carrier services within the State of Texas, as follows:

“TO TRANSPORT (OLD CERT. 8848) HOUSEHOLD GOODS AND USED OFFICE FURNITURE AND EQUIPMENT from any point within a 50 mile radius of Olney, Texas, to all points in Texas, and vice versa;
“TO TRANSPORT (OLD CERT. 16472) HOUSEHOLD GOODS, USED OFFICE FURNITURE AND EQUIPMENT from points within a 50 mile radius of Seymour, Texas, to all points in Texas, and vice versa.
“TO TRANSPORT: (OLD CERT. 16473) HOUSEHOLD GOODS AND USED OFFICE FURNITURE & EQUIPMENT from ail points within a 25 mile radius of Henrietta, Texas, to all points in Texas, and vice versa.
“TO TRANSPORT: (OLD CERT. 9233) HOUSEHOLD GOODS AND USED OFFICE FURNITURE AND EQUIPMENT from all points within a 25 mile radius of Wichita Falls, Texas, to all Texas points and vice versa; excluding the transportation to or from Harris County, Texas.”

The consolidation order was entered by the Commission for the convenience of the carrier upon the Commission’s findings that it would be to the best public interest to consolidate the certificates. In his application to consolidate the certificates of convenience and necessity, all but one of which had been previously acquired by Jeter by purchase from the original owners, Jeter stated that the proposed consolidation would result in a savings in the matter of keeping records and books as to the operations under the certificates. When the original certificates of convenience and necessity were granted by the Commission to the original owners under the provisions of Sec. 5a(c), Art. 911b, Vernon’s Ann.Civ.St., the Commission made determinations that the granting of such certificates was in full compliance with the requirements of Subsec. (d), Sec. 5a, Art. 911b.

The orders of the Commission, the invalidity of which is asserted by appellants, are the order (1) providing- for the division from Cert. No. 9233 and issuance to James H. Jeter of that portion of the order which authorized the transportation of household goods, used office furniture and equipment from all points within a 25 mile radius of Wichita Falls, Texas, to all Texas points and vice versa, excluding the transportation to or from Harris County, into a certificate to be numbered 18421 and the order authorizing the sale of Certificate No. 18421 by James H. Jeter to Alex G. Hafmeister.

Under the same procedure the Commission’s order (2) approved the division from Certificate No. 9233 of that part of the authority granted under old Certificate No. 16473 to transport household goods, and used office furniture and equipment from all points within a 25 mile radius of Henrietta, Texas, to all points in Texas and vice versa, into a certificate to be numbered 19121 and the order authorizing the sale of Certificate No. 19121 to Wayne K. Horton.

In the same manner the Commission ordered (3) the division from Certificate No. 9233 of the authorization granted under old Certificate No. 16472 to transport household goods, used office furniture and equipment from points within a 50 mile radius of Seymour, Texas to all points in Texas and vice versa, into a certificate to be numbered 19377 and authorized the sale of Certificate No. 19377 to R. C. Albert.

In entering the orders approving the applications to sell and transfer the divided certificates from Jeter to Hafmeister, Horton and Albert, the Commission made the necessary findings required under Sec. 5a (a), Art. 911b. After entering the various division orders, supra, there remained in James H. Jeter the authority under old Certificate No. 8848 to transport household goods, used office furniture and equipment from any point within a 50 mile radius of Olney, Texas to all points in Texas and vice versa.

Appellants base their appeal as to the invalidity of the Commission’s orders upon ten points of error, which are as follows: (1) that the applications to divide and create new specialized motor carrier certificates do not meet the jurisdictional requirements of Sec. 5a(c), Art. 911b; (2) that the Commission was without authority or jurisdiction to divide Certificate No. 9233 into two or more parts with no division either geographically or by commodities; (3) that the Commission’s order dividing and authorizing the issuance to Jeter of Certificate No. 18421 for the purpose of sale did not comply with the requirements of Sec. 5a(d) and 6(d), Art. 911b, since the order contained no findings of fact; (4) that under Art. 911b in the division and sale of a part of a certificate there must be a finding that such division and sale is not contrary to the public interest and will not impair the service to the public but must be supported by substantial evidence; (5) that assuming either express or implied authority to divide Certificate No. 9233 the Commission’s order contains no findings and no possible finding is supported by any evidence; (6) that the Commission’s order authorizing the sale by Jeter to Hafmeister contains no findings required by Sec. 5a(a), Art. 911b and does not meet the requirements of Sec. 6(d), Art. 911b, and is void; (7) that the order dividing Certificate No. 9233 and the issuance to Jeter of Certificate No. 18241 creates a new certificate, authorizes a new service and a new competitor without proof of convenience and necessity required by Secs. 5a(d) and 8-12, inc., Art. 911b; (8) that none of the Commission’s orders are supported by substantial evidence, (9) that the Commission’s orders are arbitrary, unjust and unreasonable to appellants, and (10) that the Trial .Court erred in admitting over objection the testimony of the witness Horace Soule as to departmental construction of Art. 911b by the Railroad Commission of Texas because such departmental construction could only be established by duly promulgated rules and regulations.

Appellants first contend that the proceeding’s for the consolidation and division of specialized motor carrier certificates are to he had under Sec. 5a(c), Art. 911b, and hence the Commission’s orders are void unless the proceedings meet the requirements of Sec. 5a(d), Art. 911b.

Since the enactment of Art. 911b, V.C. S., the Commission has construed its authority to grant or refuse applications for the consolidation and division of specialized motor carrier certificates to stem from Sec. 4(a), Art. 911b, which authorizes and empowers the Commission to supervise and regulate motor carriers in all matters whether specifically mentioned in the Act or not for the purpose of regulating transportation and relieving existing and. future undue burdens on the highways arising out of the use of the highways by motor carriers thereby adjusting and administering its regulations in the interest of the public. Applications to consolidate or divide specialized motor carrier certificates are not covered by any specific section of Art. 911b. Where applications to consolidate or divide certificates do not involve the grant of additional operating rights in competition of those of existing carriers, those provisions of the Act dealing with orders and findings of the Commission in applications for additional operating rights or new competitive rights are not applicable. In the instant case the Commission permitted Jeter to consolidate four certificates into one certificate but required that each component part of the consolidated certificate retain its original separate identity.

Appellees assert and appellants concede that if appellee Jeter had purchased all of the certificates, Nos. 8848, 9233, 16472 and 16473, and had not requested their consolidation into one certificate and then divided them out of that certificate and sold them to the other motor carrier appellees, this suit could not have been maintained. Appellants, however, contend that by consolidating the four certificates into one certificate their respective identities were merged into one authority and as a result thereof the order authorizing the division of the consolidated certificate into four new certificates constitutes the granting of a new certificate of convenience and necessity which must meet the statutory requirements of Sec. 5a(c) and (d) and 6(d), Art. 911b.

In our opinion, this contention is without merit since the consolidation and subsequent division of existing authorities which had been granted by the Commission in accordance with the requirements of Secs. 5a(c) and (d) would not grant any new authority and therefore would have no adverse effect upon competing carriers. Insofar as the public interest is concerned, the orders of consolidation and subsequent division of the existing certificate would not in any way affect the public interest since the same type of service was available to it whether rendered by Jeter or by any of the other ap-pellees. The fact that the four certificates were granted at different times to four different individuals to serve separate and distinct transportation requirements, none of the certificates having any relation to the others, and that common ownership was finally united in Jeter, does not modify their effect in considering the question of convenience and necessity as to each certificate. Railroad Commission of Texas v. Red Arrow Freight Lines, Tex.Civ.App., 96 S.W.2d 735, 738, error ref.

Since the consolidation of the four certificates did not in any manner create any new right or authority to operate as a specialized motor carrier to Jeter, the division of the consolidated certificate and the sale of certain parts thereof to the other appellees did not create any new operating rights or services. In our opinion the law of this case has already been decided by the opinion in L. A. Norris Truck Lines v. Railroad Commission of Texas, Tex.Civ.App., 245 S.W.2d 746, error ref., in which case substantially the same contentions were urged upon the appeal attacking the orders of the Commission dividing the certificate and selling the divided parts to other carriers.

The Court held that the Commission was authorized to enter the division order under Sec. 5a(a), Art. 911b, citing Houston & North Texas Motor Freight Lines v. Johnson, 140 Tex. 166, 166 S.W.2d 78, and that since the Commission had found from the evidence that the sale was in good faith and in the public interest and having fully complied with the statute in approving the division, sale and transfer of the certificate, the orders were valid. The Court then stated:

“The question of necessity and convenience having been determined by the Commission at the time the original certificate was granted, there was no occasion to or authority for the reopening of such question upon the application for the sale and transfer of the divided portion of the certificate.”

As stated above, the findings required under Sec. 5a(a) were made by the Commission in the instant case.

In Roberdeau et al. v. Railroad Commission of Texas, Tex.Civ.App., 239 S.W.2d 889, 894, (original opinion readopted and reinstated 244 S.W.2d 887) practically the same questions involved herein were decided adversely to appellants’ contention, and as stated by the Court:

“The original certificates authorized the transportation of household goods, used office furniture and equipment in the area, and as proposed by the purchaser nothing new is added.”

After stating that the departmental construction placed upon the Act by the Commission with reference to applications for division and sale and transfer should be given great weight in construing the statute, the Court held that the Commission had the authority to enter the orders and authorize the division of the certificate.

Under their 6th point of error appellants contend that the Commission’s order authorizing the sale from Jeter to Haf-meister contains no findings required by Sec. 5a(a), Art. 911b, and does not meet the requirements of Sec. 6(d), Art. 911b, and is therefore void. Under the provisions of Sec. 5a(a) the Commission is not required to make findings of any nature on its approval of the sale and transfer of the certificate but the only findings required are to be made by the Commission in the event that it disapproves the sale for one of the reasons authorized for disapproval. The provisions of Sec. 6(d), Art. 911b, apply only in the granting of new certificates and therefore are not applicable here. Appellants’ points of error Nos. 1 through 9 are overruled.

For their 10th point of error appellants assert that the Trial Court erred in admitting over their objection, the testimony of the witness Horace Soule as to departmental construction of Art. 911b, V.C.S., by the Railroad Commission of Texas because departmental construction can only be established by duly promulgated rules and regulations. Mr. Soule testified on behalf of appellees that he is the Director of the Motor Transportation Division of the Railroad Commission of Texas and that he had been employed by the Commission since October 1, 1938 as an Examiner and Director of the Motor Transportation Division; that he is familiar with the policies and administrative interpretations made by the Commission with respect to its administration of the Motor Carrier Law (Art. 911b, V.C.S.); that the Commission in regulating specialized motor carriers permits the carrier to divide certificates and separate therefrom portions to be placed in a new certificate, which is done by filing an application which is considered as an amendment and the payment of a filing fee of $25.-00, which application is set for hearing on public notice the same as any other application and hearing is held; that at the hearing no proof of convenience or necessity is received or permitted; that the Commission issues an order either granting or denying the division of the certificate and if it is granted a new certificate is drawn and given a new number which contains the authority that has been withdrawn from the old certificate and the old certificate is redrawn with the same number minus the authority which had been taken out and put into the new certificate.

The witness further testified that the Commission permits a carrier to consolidate two or more certificates that he owns into one certificate which is done by application as an amendment requiring a $25.00 filing fee; that the application is set for hearing on public notice and presented to the Commission; that after the hearing, if the consolidation is permitted, the several certificates are put in a consolidated certificate which ordinarily takes the earliest number under which any of the certificates was issued and is marked “consolidated”, and each certificate contained in the consolidated certificate retains the old number in parenthesis to identify it and the authorities are retained in the consolidated certificate to read identically as they were in the separate certificates; that the Commission had been permitting applicants to divide certificates and consolidate certificates as far back as 1934 and that the Attorney General of Texas has held that the Commission does have the power to divide such certificates; that when certificates are consolidated, each certificate retains its old number as its identity in the consolidated certificate and it is not merged.

It has been long established by the appellate Courts of Texas that departmental construction by the agency administering an Act is entitled to great weight in determining the agency’s power under that Act. Railroad Commission v. United States, Tex.Civ.App., 290 S.W.2d 699, 703; aff. 159 Tex. 197, 317 S.W.2d 927; Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 273, 153 A.L.R. 1054; Houston & North Texas Motor Freight Lines v. Johnson, Tex.Civ.App., 159 S.W.2d 905, 907; rev. on other grounds, 140 Tex. 166, 166 S.W.2d 78.

Mr. Soule in his capacity as Director of the Motor Transportation Division of the Railroad Commission is in charge of administering the provisions of Art. 911b, V.C.S., under the supervision and direction of the Railroad Commission of Texas. In such capacity as well as in his capacity as Examiner for the Motor Transportation Division over a period of almost twenty five years he was eminently qualified to testify as to the long standing departmental construction and interpretation of the statutory provisions by the Railroad Commission of Texas. Departmental construction or interpretation of the statutory provisions which an administrative body or board is empowered to enforce need not be reduced to written words to become effective nor is departmental construction or interpretation of a statute necessarily found in rules and regulations which such administrative body or board by law is authorized to promulgate. Therefore the Trial Court did not err in admitting the testimony of Mr. Horace Soule in his official capacity as Director and Examiner of the Motor Transportation Division of the Railroad Commission of Texas as to the departmental construction and interpretation by the Commission over a long period of time of the powers and authority granted it under the provisions of Art. 911b. Appellants’ tenth point of error is overruled.

On an appeal from an order of the Railroad Commission under Sec. 20, Art. 911b, the burden of proof was upon appellants to show by a preponderance of the evidence that the orders of the Commission complained of were unreasonable and unjust as to them. Since appellants have not sustained this burden, the judgment of the Trial Court is affirmed.

Affirmed.