author: RUDDY, Presiding Judge.

text:
    Eliese KAMMEYER, Employee, (Plaintiff) Appellant, v. BOARD OF EDUCATION, Employer, and Pacific Indemnity Company, Insurer, (Defendants) Respondents, St. Louis Teachers Union Local 420, American Federation of Teachers, Intervenor as Amicus Curiae.
    No. 31614.
    St. Louis Court of Appeals. Missouri.
    June 15, 1965.
    Rehearing Denied July 13, 1965.
    Application to Transfer Denied Sept. 13, 1965.

      Quinn & Quinn, William B. Quinn, Julia M. Quinn, Vernon T. Kelly, St. Louis, for appellant.
    Whalen, O’Connor, Grauel & Sarkisian, Fred B. Whalen, Warren Grauel, St. Louis, for respondents.
    John H. Martin and Melvin J. Thum, St. Louis, for intervenor as amicus curiae.
   RUDDY, Presiding Judge.

This is a proceeding brought under the Workmen’s Compensation Act. The Circuit Court affirmed an award of the Industrial Commission denying compensation to employee.

The employee, an elementary school teacher, while walking from her automobile to the Froebel School on the evening of March 17, 1960, to attend an “open house” meeting scheduled at the school, slipped on snow and ice and fell and was injured.

The St. Louis Teachers Union Local 420, American Federation of Teachers, was granted leave by the Circuit Court of the City of St. Louis and by this court to intervene as Amicus Curiae in these proceedings.

The sole question is whether the accident causing employee’s injury arose out of and in the course of her employment as a school teacher.

In her claim she alleged that she slipped on an accumulation of ice and snow while on the school premises. The Industrial Commission when making the award denying employee’s claim made the following findings and conclusions:

“The Commission finds from all the evidence that the accident suffered by employee did not arise out of and in the course of her employment. In reaching this ultimate finding, the Commission finds that employee slipped and fell upon the ice on the public sidewalk along the east side of Pennsylvania Avenue adjacent to the grounds of the Froebel School at a point approximately twenty feet south of what is referred to in the evidence as ‘the second gate into the school yard’ at a time when she was going to her work in said school; and that, since said accident did not occur upon employer’s premises, same is not compensable.
“The Commission further finds that the work that employee was, at the time of the accident going to perform, was a part of her regular duties as a teacher.”

Employee in her brief “concedes that the finding of fact made by the Industrial Commission on the disputed and controverted issue of where the appellant fell, to-wit, ‘ * * * upon the ice on the public sidewalk along the east side of Pennsylvania Avenue adjacent to the grounds of the Froebel School, and that said accident did not occur upon the employer’s premises’ is supported by substantial evidence and is conclusive and binding upon appellant (employee) and the St. Louis Court of Appeals in determining this appeal.”

Supplementing employee’s concession, we add that we have examined the evidence and find that this finding made by the Commission is supported by substantial and competent evidence. Employee in her points relied on confines her attack to the finding made by the Commission, “that the work that employee was, at the time of the accident, going to perform was a part of her regular duties as a teacher.” Our summation of the evidence before the Industrial Commission will be confined to such evidence as pertains to this finding of the Industrial Commission challenged by the employee.

Employee was a teacher employed by the Board of Education of the City of St. Louis since 1942. For approximately one year prior to her fall she had taught a class of mentally retarded children at the Froebel Elementary School. Her immediate superior was Miss Lucille Berkel who was principal of the school. Her teaching hours at the school were from 8:30 A.M. to 3:30 P. M. daily, but she usually got to the school about 8:15 A.M. because on certain days she had yard duty. On the day of her fall she had yard duty and had to report at the school at 8:15 A.M. and also supervised play in the yard during morning and afternoon recesses on that day.

William Kottmeyer, Deputy Superintendent of Instruction in the school system, said that the teacher is directed to be ready and prepared for teaching at 8:30 A.M. but that the precise limits are not confined “in clock hours.”

In addition to her regular classroom duties employee was required to attend meetings held after 3:30 P.M., with other teachers of the school when called by the principal of the school. She said these meetings would be called “every few weeks.” It was a practice for many years in the public school system of the City of St. Louis to hold “open house” meetings and this was a customary part of the operation of the schools in the city. The primary purpose of these meetings was to invite the parents of the children to meet with the respective teachers of their children to enable the teacher to personally discuss with the parents the conduct of their children, their progress and type of work they were doing. It was also the function and duty of each individual teacher at the open house meeting to discuss with the parents of the children they were teaching in their classrooms the problems confronting the children. These meetings were held during the day occasionally, but most frequently in the evening hours. The employer, Board of Education, did not furnish transportation to and from the school for the teachers and the employer in no way attempted to control the means and methods of the teachers going to and coming from school. It was the teacher’s own responsibility as to how she would travel between her home and the school. There were no activities in connection with the open house meetings to be performed by the teacher outside of the school building itself.

Whenever a school bond issue or tax increase was submitted to the voters for approval at an election, the Superintendent of Education would time the open house meeting in each school for a date close to the eve of the election in order to use the meeting as a means of publicizing the need for approval of the school bond issue or a tax increase or both. This had been a practice of the Board of Education for many years. A bond issue proposal and a tax increase proposal on behalf of the Board of Education had been submitted to the voters of the City of St. Louis a number of times prior to March 22nd, 1960, and had failed to get the voters’ approval. These matters were resubmitted to the voters for approval on March 22, 1960. The Board of Education and the administrative officials of the public school system regarded approval of the bond issue and tax increase as a “must” and said that failure would create a desperate and critical situation. A systematic campaign by the Board of Education and its administrative people was conducted, and included in the campaign was the distribution of informative literature to the parents of the children attending the schools. One of the measures used in the campaign was a directive to all schools to hold an open house meeting, at which meeting, in addition to the parent-teacher communication as heretofore stated, the principals of the schools were directed to and did show a film at each of the elementary schools and made an explanation to the parents of the public school needs. The principals were directed to have the teachers urge the children to have their parents attend this meeting which consisted of two parts. Initially, the parents were shown a film by the principal of the school publicizing the coming election. Thereafter, the parents were directed by the principal to go to the room in which their children were housed and to discuss with the teacher the matters heretofore stated. It will be noted that only the principal of the school participated in the initial meeting concerning the campaign for approval of the bond issue and tax increase and that the teachers had no part in this meeting as will be further demonstrated in the testimony of employee.

Pursuant to the directive of the Board of Education and its superintendent, the principal of Froebel School, Miss Lucille Berkel, had a meeting with the teachers of the school several weeks prior to March 17, 1960, and informed them that an open house meeting would be held on the evening of March 17th, 1960.

Employee testified and admitted that the holding of the open house meetings was a regular thing; that sometimes they were held during the day and sometimes at night and that these open house meetings took place at least once a year. She said that pursuant to this order for an open house meeting she got her room in order. By this she meant she got together the material which the children had prepared for the parents to see. When she was asked the purpose of the open house, she said: “To meet the parents.” She said that this meeting gave her an opportunity to talk to the parents and become acquainted with them and to give them a chance to discuss the problems involving their children. She was asked: “Q. Was there going to be any discussion with the parents about voting in favor of the Bond Issue?” and she answered “Not on my part. Q. Or in this meeting you had, were you directed to endeavor to solicit the votes of the parents for the Bond Issue? A. No. Q. Any discussion of that at all ? A. No.” When asked if she had to attend this meeting, she said that when the principal told her about the open house meeting, it meant to her that she was to be there. She said that she did not send any notices to the parents but that she had the children write letters inviting the parents to the open house meeting, and instructed the children to take them home to their parents. When employee was asked the purpose of the note or letter written by the children, she answered, “It was given the parents — the parents were asked to come to meet the teacher and to discuss any problems which they had, give the parents an opportunity to see what the children had done.” She was asked “You considered this part of your duty just the same as you would consider it your duty to be present and teach during the time the school was open?” She answered, “That is right. Q. Was this just one of the things that were included in your regular duties as a school teacher at the Froebel School? A. Well, yes. Q. There was no special direction given to you over what would be given to the other teachers at the Froebel School insofar as this open house was concerned, was there? A. No.”

On March 17, 1960, the day of employee’s fall, she taught her class until 3:30 P.M. and then went home for dinner. Around 6:30 P.M. she drove her own car back to the school for the purpose of attending the open house meeting. After she got out of her car and before she reached the school premises she fell on the public sidewalk, as found by the Industrial Commission. Her fall occurred around 7 P.M. According to employee and other witnesses, the weather was cold and it was below freezing. It had snowed previously and there was slush, snow and ice on the ground and the testimony indicated that this condition was a general condition prevailing at the time. Employee contended that it was the icy condition of the ground that caused her to fall. She received no additional compensation for attending this or other open house meetings. She did not attend the open house meeting that evening, finding it necessary to take care of her injuries.

Lucille A. Berkel, principal of the school, testified that employee was under her supervision and had been for four years. She told employee and other teachers in the school to be present at the school for open house. She said that open house was held in the past few years, usually two times a year, and that this was the customary and regular procedure, explaining that “it was regular not special.” It was part of the regular operation and part of the teacher’s course of duty. She said that the evening of the open house meeting the teachers were to demonstrate teaching procedures and that she, the witness, showed the films to the parents demonstrating the need for the bond issue and the increase in tax. She said employee had the display prepared for the parents on behalf of the school children in her class. In an accident report prepared by the witness, which was introduced by the employee it showed, under the heading “Occurrence Of Injury,” that “Froebel School had Open House and parents were visiting.” In another report to the Director of Health and Hygiene prepared by the witness, it also showed that the injury occurred at open house at Froe-bel School and under the inquiry, “What was injured person doing,” the answer shows, “She was to be present to meet parents of children in her classroom who were coming to the Open House.”

William Kottmeyer, Deputy Superintendent of Instruction, said “as custom and tradition has brought it about” all teachers were expected to attend the open house meeting “unless they were physically incapacitated.” However, he said that there was no regular rule or regulation that required attendance of the teacher at open house and that if a teacher failed to report there would be no punitive action taken. He added that there has never been any particular problem about attendance because the teachers have cooperated completely in the past. He said that it was customary as part and parcel of the matter of operating the schools that the teachers carrying on their particular activities make contact with the parents personally and discuss the conduct of the children and other matters that needed communication between the teacher and parents.

The employee contends that even though the factual issue as to where she fell has been found against her, the accidental injury, nonetheless, is one that arose out of and in the course of her employment and, therefore, she is entitled to workmen’s compensation benefits. Opposed to this is the contention of the employer in which it urges the application of the general rule in workmen’s compensation cases that injuries by an employee while “going to and returning from work” and “off the employer’s premises” are not compensable. The employer points to the evidence that shows the accident occurred before the employee reached the employer’s premises where her presence was required to perform services at an open house meeting conducted by the Froebel School as part of employee’s regular duties as a teacher and a member of the faculty of the school. The employer further contends that the ice and snow which caused employee to fall and suffer injury did not expose or subject her to a hazard peculiar to her in her capacity as a teacher, nor was it traceable to her employment, but rather the condition of snow and ice was one to which the general public was equally exposed and was common to the community. The employer further contends the finding of the Commission that the accident suffered by employee did not arise out of and in the course of her employment was supported by competent and substantial evidence.

It was the employee’s burden to show that the injury was by accident arising out of and in the course of her employment. Duggan v. Toombs-Fay Sash and Door Co., 228 Mo.App. 61, 66 S.W.2d 973, 1. c. 978.

An injury by accident arises “out of” the employment when there is causal connection between the nature of the employee’s duties or the conditions under which she was required to perform them and the resulting injury. Lunn v. Columbian Steel Tank Company, 364 Mo. 1241, 275 S.W.2d 298; Morgan v. Duncan, Mo., 236 S.W.2d 281; Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128; Nichols v. Davidson Hotel Company, Mo.App., 333 S.W.2d 536; Heaton v. Ferrell, Mo.App., 325 S.W.2d 800; Rankin v. Girvin, Mo.App., 231 S.W.2d 242; Conyers v. Krey Packing Co., Mo.App., 194 S.W.2d 749. And, as we said in the recent case of Liebman v. Colonial Baking Company, employer, and Royal Indemnity Company, insurer, Mo.App., 391 S.W.2d 948: “ * * * so that the accident can fairly be said to have been a rational consequence of some hazard connected with (or aggravated by) the employment.”

But the mere proof of an accident “arising out of” the employment is not enough, there must be proof that the accident occurred “in the course of” the employment. If only one of these conditions is shown to exist, without the other, then the claim for compensation benefits must fail. Lunn v. Columbian Steel Tank Company, supra; Rankin v. Girvin, supra; Duggan v. Toombs-Fay Sash and Door Co., supra. An accident causing injury arises “in the course of” the employment when it occurs within a period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto. Morgan v. Duncan, supra; Wahlig v. Krenning Schlapp Grocer Co., supra; Nichols v. Davidson Hotel Co., supra; Heaton v. Ferrell, supra. The words “aris-ang out of” refer to the origin or cause of the accident and are descriptive of its character, while the words “in the course of” refer to the time, place and circumstances under which the accident takes place. Duggan v. Toombs-Fay Sash and Door Co., supra. There must be a causal connection as well as a time and place relationship. But as said in Heaton v. Ferrell, supra, (325 S.W.2d 1. c. 804): “* * * recognizing the difficulty often encountered in applying broad legal principles to specific factual situations, our courts have frequently said that no all-embracing definition of the phrase ‘arising out of and in the course of his employment’ has yet been framed, and have added the common-sense admonition that every case involving the quoted phrase should be decided upon its own particular facts and circumstances and not by formula.” Also see Lunn v. Columbian Steel Tank Company, supra; Morgan v. Duncan, supra; Rankin v. Girvin, supra; Buckner v. Quick Seal, 233 Mo.App. 273, 118 S.W.2d 100; Duggan v. Toombs-Fay Sash & Door Co., supra.

Applying the aforesaid to the instant case, the question whether the injury sustained by employee off the premises in going to her work is compensable is governed by the circumstances and facts of the instant case and the nature and circumstances of her particular employment.

In support of her contention that her accidental injury arose out of and in the course of her employment, employee states that the “going to and coming from” rule has no application because she was performing a special duty, service or mission for her employer’s sole benefit and not for any purpose of her own and the journey to the place of employment was a part of the service rendered the employer. In support of this she says that her participation in the open house meeting was to assist the employer to accomplish the special and desperate purpose of having the school tax increase and building bond issue voted upon favorably by the parents of the school children and for this reason her trip from her home to the school was for a special duty and was not a part of her regular duties as a teacher, as found by the Industrial Commission. Whether the work that employee was going to perform at the time of the accident was a part of her regular duties as a teacher or whether she was going to assist the employer to accomplish the special purpose of having the school tax increase and building bond issue voted upon favorably by the parents of the school children was a question of fact to be determined by the Industrial Commission. Therefore, the question before us is whether there is competent and substantial evidence to support the finding of the Industrial Commission, “that the work that employee was, at the time of the accident going to perform, was a part of her regular duties as a teacher.” If there is such evidence, we are bound by the finding of the Industrial Commission for we may not substitute our own judgment on the evidence for that of the Commission but we are only authorized to decide whether the Commission could have reasonably made its finding and reached its result upon a consideration of all of the evidence before it and to set aside its finding and decision if clearly contrary to the overwhelming weight of the evidence. We must consider the evidence, together with all reasonable inferences to be drawn therefrom, in a light most favorable to support the finding and award of the Industrial Commission.

The facts in evidence clearly show that employee had nothing to do with that part of the meeting devoted to publicizing to the parents the need of the Board of Education to have the school tax increase and bond issue voted favorably by the parents of the school children. The evidence shows in this case that the teachers’ duties do not end with the school session at 3:30 P.M. William Kottmeyer, Deputy Superintendent of Instruction, testified that the precise limits of a teacher’s time are not confined “in clock hours.” The evidence shows that in addition to her regular classroom duties she was required to attend meetings held after 3:30 P.M., with other teachers of the school, when these meetings were called by the Principal of the school. She admitted these meetings would be called and held “every few weeks.” William Kottmeyer, Deputy Superintendent, and Lucille Berkel, Principal, testified that the open house meetings were held periodically and that these meetings were a customary and regular procedure, the Principal explaining that “it was regular not special.” The Principal further stated that it was a part of the teacher’s course of duty to attend open house and that at the open house meetings the teachers were to demonstrate teaching procedures. In the Principal’s report to the Director of Health and Hygiene, introduced into evidence by the employee, it was shown that the employee was to be present to meet the parents of the children in their classrooms who were coming to the open house. Kottmeyer also testified that it was the customary part of operating the schools that the teachers make contact with the parents personally and discuss the conduct of the children and other matters that needed communication between the teacher and parents. It seems to us it was a significant and important part of the teaching duties of the employee to make contact and communicate with the parents of the mentally retarded children she taught. Employee testified that she considered attendance at the open house meeting with the parents a part of her duties just the same as she would consider it her duty to be present and teach during the day time school hours, and when she was asked if this was one of the things (attending open house) that were included in her regular duty as a school teacher at the Froebel School, she answered, “Yes.” There is no doubt the evidence shows that the primary purpose of the open house meetings was to invite the parents of the children to meet with the teachers in order that the teachers may communicate with the parents in regard to the conduct, progress, type of work and problems of the children. The employee admitted that the purpose of open house was to meet the parents. We think the significant evidence that shows clearly that employee had nothing to do with the part of the meeting devoted to promoting the tax increase and bond issue is in her testimony when she admitted that she had no part in any discussion with the parents about voting on the tax increase or bond issue; that she was not directed to endeav- or to solicit the votes of the parents for these matters and so far as she was concerned there was no discussion of those matters at all. In this connection we point out that the record shows that the part of the meeting devoted to publicizing the need for approval of the school bond issue and the tax increase was carried on by the Principal of the school. Lucille Berkel, the Principal, in this connection showed a film to the parents and made an explanation to them of the public school needs. After this part of the meeting was concluded the parents were directed by the Principal to the rooms in which their children were housed to discuss with the teachers the matters heretofore mentioned. Only the Principal participated in this part of the meeting and the teachers had and took no part in the meeting devoted to the tax increase and bond issue matter.

For attendance at this and other open house meetings, employee and other teachers received no additional compensation, nor did the employer furnish transportation to and from the school. As the evidence shows, the employer in no way attempted to control the means and methods of the teachers going to and coming from school. How the teacher would travel between home and school was a matter of her own responsibility. We think the record of the evidence demonstrates without a doubt that the work employee was going to perform at the time of her accident was a part of her regular duties as a teacher. This finding of the Industrial Commission is supported by competent and substantial evidence and, frankly, there is no evidence to the contrary. Our understanding of a special employment or service is work or service that is not ordinary or usual and is not contemplated within the terms of the employment. Employee’s contention that she was performing a special duty, service or mission for her employer’s sole benefit in her trip from her home to the school is without merit and is ruled against her.

Section 287.020(5) RSMo 1959 (this subsection renumbered (6) in Laws 1963, p. 408) 15 V.A.M.S., provides:

“Without otherwise affecting either the meaning or interpretation of the abridged clause, ‘personal injuries arising out of and in the course of such employment’, it is hereby declared not to cover workmen except while engaged in, or about the premises where their duties are being performed, or where their services require their presence as a part of such service.”

The general rule in Workmen’s Compensation cases is that an injury sustained by an employee while going to and coming from work is not compensable for the reason that it may not be said to be by accident arising out of and in the course of the employment. This is because the hazards encountered by an employee while going to or returning from the regular place of work before reaching or after leaving the employer’s premises are not ordinarily incident to the employment and, exeept in special instances, are held not to arise out of and in the course of the employment. Gingell v. Walters Contracting Corporation, Mo.App., 303 S.W.2d 683; Garbo v. P. M. Bruner Granitoid Co., Mo. App., 249 S.W.2d 477. We said the general rule applies except in special instances. In order for employee to recover benefits she must show that she was engaged in her employer’s business at the time and place of her fall and that there was a causal connection between her injuries and her work. In this connection she has the burden to show that she was at a place where by reason of her employment she was required to be and where by reason of her employment she was subjected to hazards to which the general public was not exposed or to which she by reason of her employment was exposed peculiarly and to a greater degree than the general public. The Industrial Commission having found that employee fell at a place “off the employer’s premises” on ice and snow, a condition that was common to the general community, the rule is that if the hazard that caused her fall was such, to which the public generally was exposed, her injury is not compensable. Donzelot v. Park Drug Co., Mo.App., 239 S.W.2d 526; Rankin v. Girvin, supra; Payne and Dolan v. Industrial Commission et al., 382 Ill. 177, 46 N.E.2d 925; 99 C.J. S. Workmen’s Compensation § 234, pp. 830-831. In other words, an injury which occurs to employee while off the premises of the employer and at a place where she is not required to be as a part of her duties as a teacher, does not occur in the course of her employment and is, therefore, not compensable. Employee was not doing anything incidental to her employment as a teacher at the time she fell, and the relationship of employee and employer did not exist at that time, which is a necessary relationship to the recovery of benefits. None of her duties as a teacher were to be performed outside the premises of the Froe-bel School. She had a fixed place for her work. Her employer did not provide her transportation nor attempt in any manner to control it. She was at liberty to select the particular way, means and conveyance for going to and from the school. She selected her usual conveyance and route to school.

A case which closely parallels the instant case on the facts is that of Donzelot v. Park Drug Co., supra, decided by this court. In that case the Industrial Commission rejected employee’s testimony that she slipped on the threshold of the door on her employer’s premises and found that she actually slipped on ice and fell on the public sidewalk in front of the employer’s place of business. We affirmed the Commission in this finding. In upholding the award of the Commission denying compensation to the employee, we found that she was not injured as a result of an accident arising out of and in the course of her employment; that she was not engaged at the time in performing any duties of her employment; that she was not upon the premises where the work of her employer was being carried on, and the services for which she was employed did not require her presence at the place in question and at the time of the accident she was not exposed to any greater hazard by reason of her employment than the public generally. We applied the general rule applicable to injuries from accidents occurring “off the premises” and while “going to and coming from” the place of employment in denying the employee compensation. In this case we quoted from Gullo v. American Lead Pencil Co., 119 N.J.L. 484, 196 A. 438, as follows:

“The narrated facts clearly establish both an accident and an injury to the employee, but in no sense can it be said to have arisen out of and in the course of the employment, and this because the employment in the terms of the statute had not yet begun.
“In seeking the proper construction of the statute, where is the boundary between employment and nonemployment to be found if not in the facts of the present case? Is it when the employee is within a few feet of the place of employment, but still on the public highway in no way connected therewith, and not where the distance intervening is multiplied few or many times? Is it when one starts on the journey from home to factory? If not, at what point between does employment begin? There must come a time when the employee is on his own. At the moment of the accident the respondent was not in employment. The time and place were her own; she could proceed or turn back. She was in no sense in the service of the employer at the moment.”

The same questions could be propounded in the instant case. Clearly in the instant case the employee’s services as a teacher did not require her presence at the place where she fell and if we were to allow her compensation because she was on her way to school, we ask the question as was propounded in the Güilo case aforesaid, “where is the boundary between employment and nonemployment to be found?” If we were to hold that her employment starts on the journey from home to school, why not hold that accidents occurring in the home while employee• is preparing to make the trip are compensable.

In the instant case nothing done by the employee prior to reaching the school itself was incidental to her teaching employment and in the language of the statute where her injury was not received while engaged in or about the premises of her employer where her duties were to be performed or where services required her presence as a part of such service, she was not entitled to compensation. Other cases denying compensation to the employee on facts similar to those of the instant case may be found in the case of Donzelot v. Park Drug Co., supra. There was no direct causal connection between the employee’s work as a school teacher and her injury. Also see Rankin v. Girvin, supra. It seems apropos to restate what was said in the case of Tucker v. Daniel Hamm Drayage Co., Mo.App., 171 S.W.2d 781,1. c. 786:

“The Legislature might at some future time adopt a statute to the effect that employees sustaining accidental injuries while on their way to and from work are entitled to compensation, but we have no such statute at this time. On the contrary, the applicable statute plainly provides that the employer shall only be liable to furnish compensation for personal injury or death of the employee by accident ‘arising out of and in the course of his employment.’ ”

We have examined carefully the cases relied on by the employee and by intervenor herein and find them inapplicable and containing facts which bring them within the exceptions to the “off the premises” and “going to and coming from” rule.

The cases of Lunn v. Columbian Steel Tank Co., supra; Nichols v. Davidson Hotel Co., supra; England v. Fairview School Dist. No. 16 of Power County, 58 Idaho 633, 77 P.2d 655; Kyle v. Greene High School, 208 Iowa 1037, 226 N.W. 71; Bobertz v. Board of Education of Hillside T. P. Union County, 134 N.J.L. 444, 48 A.2d 847, involved employees who were engaged in a special employment, service, task, or trip.

The cases of Mann v. Board of Education of Detroit, 266 Mich. 271, 253 N.W. 294; Scrivner v. Franklin School District No. 2 of Canyon County, 50 Idaho 77, 293 P. 666; Wahlig v. Krenning-Schlapp Grocer Co., supra; Buckner v. Quick Seal, Inc., supra, involved employments where trips requiring the use of the streets and highways were a regular part of the duties of the employee, which duties increased the exposure of the employee to the hazards of the streets and highways.

The cases of Corp v. Joplin Cement Company, Mo., 337 S.W.2d 252; Gingell v. Walters Contracting Co., supra; Daniels v. Krey Packing Co., supra; Hacker v. City of Potosi, Mo., 351 S.W.2d 760, involved trips made by the employee for a “dual purpose.” Under the dual purpose doctrine service to the employer need not be the sole cause of the employee’s journey but at least it must be a concurrent cause. If the employee in the course of his normal journey to and from work performs some concurrent service for his employer, this becomes an exception to the general rule excluding injuries from accidents occurring “off premises” and while “going to and coming from” home. The question then becomes: “Was this mission of such character or importance that it would have necessitated a trip by someone if this employee had not been able or willing to handle it in combination with his homeward journey?” Gingell v. Walters Contracting Co., supra, 303 S.W.2d 1.c. 689.

In the instant case, as we have pointed out, employee was not engaged in any special employment, service, task or trip. The trip she was taking on the evening of her fall was not a regular part of her employment and her employment did not require her presence at the place where she fell and employee in the course of her normal journey to the school was not performing any service for her employer.

The trial court’s finding and judgment affirming the final award of the Industrial Commission denying compensation to the employee on the ground that the accident did not arise out of and in the course of her employment was proper and should be affirmed by this court. It is so ordered.

WOLFE and ANDERSON, JJ-, concur.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Gene Edward MASON, age 18, by and through his next friend, Roscoe Mason, Appellee. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. William MASON, age 15, by and through his next friend, Roscoe Mason, Appellee.
    Court of Appeals of Kentucky.
    March 26, 1965.
    Robert F. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Phillip K. Wicker, Somerset, for appellant.
    Grant F. Knuckles, Pineville, for ap-pellees.
   PALMORE, Judge.

The appellees, William Mason and Gene Mason, infants proceeding through their father and next friend, filed with the Board of Claims their separate claims against the highway department for personal injuries sustained in the same accident. KRS 44.070 et seq. The cases were tried together and are consolidated on this appeal. Adopting and approving the opinion and order of its referee, the full board upon review (KRS 44.086) found that the claimants were con-tributorily negligent and dismissed the claims. On further review (KRS 44.140) the Bell Circuit Court determined that the evidence before the Board of Claims was not sufficient to support its findings of contributory negligence, and the cases were remanded to the board with directions to fix the damages and enter awards accordingly. The highway department appeals to this court. KRS 44.150.

The facts are relatively simple. On the afternoon of August 4, 1961, three boys riding one bicycle down a steep and tortuous mountain road on their way to a swimming hole met and collided with a highway department truck coming around a curve. The highway consisted of 14 feet of concrete slab and 13 feet of shoulder. According to the occupants of the truck the bicycle was on the wrong side. The version of the claimants was that they were on the right side and the truck was straddling the middle of the road. One of the passengers in the truck said the boy could not stop or steer the bicycle and that it was weaving from one side to the other. The driver of the truck said that they were “going all over the road, and I could see them dragging their feet to try to stop the bicycle, and it was swerving all over the road.” He stated also that there was sufficient room for the bicycle to pass.

Gene Mason, 18 years old, was driving the bicycle. William, 15, was riding on the cross bars, in front, and another brother, Jerry, was riding behind the driver. Gene testified that they “came to this curve, and I seen this State Highway truck coming up through there on my side, and I tried to •stop but I couldn’t and I bumped him. We hit one another.” Neither boy (only Gene and William testified) was asked whether there was enough room on the highway for the bicycle to pass the truck, but it seems clear that there was because William, though he had described the truck as having been “more on our side than it was on his ■own,” when asked whether all of the truck was on the wrong side replied, “No, you know, it was in the middle of the road.”

If the findings of fact of the Hoard of Claims are supported by substantial evidence they are conclusive. Commonwealth Dept. of Highways v. General & Excess Insurance Co., Ky., 355 S.W.2d 695, 699 (1962). The question here is whether there was enough evidence to support a finding of contributory negligence. We have no doubt that there was. Harris v. Morris, Ky., 259 S.W.2d 469, 473 (1953).

It is argued in behalf of William, the handlebar passenger, that he was a guest of Gene, the driver, and that Gene’s negligence cannot be imputed to him. This we can concede without deciding. The question is not one of imputation, but whether William was negligent in his own right. The contention that riding double or triple does not constitute negligence as a matter of law may also be conceded for purposes of the discussion, because the question in that respect is not whether the boys were negligent as a matter of law, but whether a trier of fact could reasonably find them negligent.

It was the referee’s conclusion from the evidence of the bicycle’s weaving from side to side, and of the boys dragging their feet .on the pavement in a vain effort to slow or stop it, that the bicycle was not under proper control; that the operator’s inability to control it was materially influenced by the presence of three riders; that except for this lack of control the bicycle could have passed to the right of the truck and avoided the accident; and that it was negligent of the boys who are the claimants in this proceeding to ride the bicycle in this fashion down a steep and crooked mountain road. This view was approved by the board and we concur.

Appellants take the position that since the board found the truck driver negligent, in that the truck was partially on the wrong side of the road, the testimony of its occupants to the effect that there was room for the bicycle to pass, and that the bicycle was on its wrong side, was rejected. Assuming that the board had found specifically that the bicycle was in its proper traffic lane, still there was evidence from which it could reasonably be found that if the bicycle had been under proper control the accident could and would have been avoided.

The judgments are reversed with directions that the order of the board be affirmed.


author: GREENHILL, Justice.

text:
    ANCHOR CASUALTY COMPANY, Petitioner, v. J. E. BOWERS, Respondent.
    No. A-10609.
    Supreme Court of Texas.
    July 28, 1965.
    Bryan & Patton, Houston, for petitioner.
    Howard M. Wayland, Houston, for respondent.
   GREENHILL, Justice.

This is a suit on three fire insurance policies to recover for damages caused by fire to the home and furnishings of J. E. Bowers. Generally, the Anchor Casualty Company defended on the grounds that (1) Bowers had not complied with the proof of loss provisions in the policies; (2) the household furnishings were not covered because no permits were issued for their removal from a previous location to the location of the fire; and (3) Bowers or some unknown accomplice set fire to the house. Judgment was entered for Bowers on the basis of jury findings that the house was a total loss and that the value of the furnishings was $1,000. The Court of Civil Appeals affirmed. 385 S.W.2d 568 (1964). We reverse the judgments of the courts below and remand the cause for a new trial because of the failure of the trial court to submit an issue to the jury as to whether a removal permit had been issued.

The household furnishings were insured only at the location described in the policies. Bowers had moved since the policies-were issued. He contends that the company issued proper removal permits which were destroyed in the fire, but the company denies the fact that permits were issued. The Court of Civil Appeals held that the trial court was not required to submit an issue to the jury on this matter because Bowers’s testimony was positive and concerned a matter which the company could have contradicted had it been untrue. We hold that since there was testimony which tended to discredit or impeach Bowers’s testimony, the credibility of his testimony was for the jury to pass upon, and an issue of fact was raised which should have been submitted to the jury.

The determination of such a question requires an analysis of the evidence. Bowers testified that he notified Petitioner’s former agent, the Solomon Insurance Agency, of the move and that he received a removal permit which was destroyed in the fire. Mrs. Solomon, the agent who issued the policies, testified that she was notified that the furniture was to be moved but could not state under oath that a removal permit was issued. Mrs. Solomon no longer owned the agency at the time of the trial, and she testified that she did not have access to the records. There is no direct testimony that proper removal permits were not issued.

If this were all the evidence, we could agree with the Court of Civil Appeals that no issue of fact was raised. However, we find additional evidence in the record. Recently we stated that the uncontradicted testimony of an interested witness cannot be considered as doing more than raising an issue of fact. An exception is made when the testimony of the interested witness is clear, direct, and positive, and there are no circumstances in evidence tending to discredit or impeach such testimony. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.Sup.1965). There are circumstances in evidence tending to discredit or impeach Bowers’s testimony.

Mrs. Solomon testified that a removal permit is issued in the form of an endorsement that goes on the policy. The policies were not destroyed in the fire and were introduced in evidence, but no permits were attached. When Mrs. Solomon reported the loss to the company she gave Bowers’s old address. She got the address from her records. The fact that she used the old address might indicate that she had not issued or prepared the permit of removal to the new address. Moreover, there is evidence that the insured property was intentionally burned. A member of the arson squad of the Houston Fire Department testified that he investigated the fire, and that in his opinion it was a “set fire.” An insurance adjuster testified that he examined the premises the day after the fire and could find only the remains of a few pieces of furniture. He could find no evidence of many of the items of furniture and personal property which Bowers claimed were burned in the fire. The adjuster testified that there should have been evidence of the other furniture allegedly destroyed if it had been in the house. This evidence raises questions concerning the credibility of Bowers. The truth of his testimony, therefore, regarding the issuance of the removal permit was for the jury to pass upon. •

In Great American Reserve Ins. Co. v. San Antonio Plumbing Supply, supra, we said that the exception to the interested witness rule, stated above (where the evidence is clear, direct, and positive, and there are no circumstances tending to discredit or impeach such testimony), is especially true where the opposite party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so. See Owen Dev. Co. v. Calvert, 157 Tex. 212, 302 S.W.2d 640 (1957); McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 (1943).

In other words, failure to contradict is another factor to be considered by the court; but it does not necessarily preclude the holding that a fact issue is raised when, as here, there are circumstances in evidence tending to discredit or impeach the testimony of the interested witness.

The Court of Civil Appeals cited Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1942), wherein it was said that the testimony of Cochran should be taken as true because it could have been easily controverted if it were untrue. But in the same paragraph the Court alludes to the fact that Cochran’s testimony was clear, direct, and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon. Cochran, therefore, is not inconsistent with the case at bar.

The insurance company requested a special issue to inquire whether Bowers set fire to the property. We approve the action of the Court of Civil Appeals wherein it held that the requested issue was defective because it did not contain the element of intent. 385 S.W.2d at 572.

Finally, the insurance company contends that Bowers failed to file a sworn proof of loss within 91 days as required by the policies, and that the company should have been granted an instructed verdict for that reason. We agree with the Court of Civil Appeals that the trial court did not err in refusing to grant the company’s motion. The matter is discussed in that court’s opinion and need not be repeated here. 385 S.W.2d at 569, 570. Bowers did file proof of loss within the time required, but it does not appear to have been sworn to before a notary. The company did not point out that defect. Rule 93 (m) of the Texas Rules of Civil Procedure requires in substance that where a proof of loss is concerned, and there is a denial of such proof of loss, such denial “shall be made specifically and with particularity.” The Court of Civil Appeals correctly overruled the company’s points of error.

The judgments of the district court and the Court of Civil Appeals are reversed and the cause is remanded to the district court for a new trial.


author: PER CURIAM.

text:
    Wayne WIGLEY et al., Petitioners, v. Henry F. TAYLOR et al., Respondents.
    No. A-10832.
    Supreme Court of Texas.
    July 28, 1965.

      Leonard E. Choate, Dallas, for petitioners.
    Floyd W. Addington, Lewis Lanier, jasper, Ripley E. Woodard, Houston, John H. Seale, Jasper, for respondents.
   PER CURIAM.

Petitioners filed a motion for an extension of time within which to file a transcript in the Court of Civil Appeals at Beaumont. The motion was filed before the expiration of sixty days from the date on which final judgment was rendered and entered in the trial court. The Court of Civil Appeals denied the motion and dismissed the appeal. 390 S.W.2d 477.

The motion was denied on the ground that it “wholly failed to show good cause therefor” as required by Rule 386, Texas Rules of Civil Procedure. One of the reasons given by the Court of Civil Appeals for its conclusion that the motion failed to show good cause is that the motion “was not accompanied by any statement of the district clerk of her inability to timely furnish the transcript.” There is an affidavit in the record, made by counsel for petitioners, reciting that the clerk advised the affiant that she could not prepare the transcript within the time allowed by the Rules. There is also in the record an affidavit by another attorney that at counsel’s request he sought to obtain a written statement from the clerk but that the clerk refused to give it. These affidavits are uncontradicted in the record. We cannot approve denial of a motion for extension of time because of absence of a written statement of a public official who, although affirming inability to perform an official duty within a limited time, refuses to put the affirmation in writing. On the other hand, we cannot say that the Court of Civil Appeals abused its discretion in denying the motion inasmuch as counsel waited forty-eight days after judgment was entered by the trial court before ordering the transcript. Accordingly, writ of error is refused, no reversible error. Rule 483, Texas Rules of Civil Procedure.

SMITH, J., not sitting.


author: SHARPE, Justice.

text:
    Betty Showers BROWN et al., Appellants, v. Mary Elizabeth Showers SCHERCK et al., Appellees.
    No. 69.
    Court of Civil Appeals of Texas. Corpus Christi.
    July 29, 1965.
    Rehearing Denied Aug. 26, 1965.
    Smith & Lehmann, J. Edwin Smith, Houston, for appellants.
    Strickland, Winkler, Hall & Mills, Harry L. Hall, Mission, for appellees.
   SHARPE, Justice.

This suit was instituted by appellants, who are the daughters of E. A. Showers, deceased, joined by their husbands, respectively, against appellees as trustees of a testamentary trust created by the will of their father, and was brought under the Uniform Declaratory Judgment Act (Art. 2524-1, Vernon’s Ann.Tex.Civ.St., Sections 2 and 4), and pursuant to the provisions of the Texas Trust Act (Articles 7425b-l — • 7425b-47, particularly Art. 7425b-24, V.A. T.S.), for construction of said will and declaratory judgment that said testamentary trust terminated when Nancy Showers Slaughter, the youngest daughter, became twenty-one years of age on December 28, 1957; for distribution of the corpus of the trust if the Court held that the trust had terminated on said date; and, if not so terminated, for declaratory judgment determining such termination date. The minor children of appellants, who are contingent beneficiaries, were also named as defendants in the suit, and a guardian ad litem was duly appointed to represent them.

This suit was numbered 609,373, in the 113th Judicial District Court of Harris County, Texas, and was filed on January 3, 1963. Appellees defended primarily on the ground that the final judgment rendered in the same court by the same judge on April 25, 1962, in Cause No. 589,943, styled Ann Showers Butler, et al. v. Mary Elizabeth Showers Scherck, et al., and in which all parties to the instant suit were also parties, was res adjudicata and conclusively established that the testamentary trust did not terminate on December 28, 1957, and was in existence as an active trust at the time of such prior judgment. Various other defenses were urged by ap-pellees in the alternative, and the same will be discussed more fully in subsequent portions of this opinion.

The case was tried to the Court without a jury. Aside from brief oral testimony given by the three appellant daughters of E. A. Showers, the three testamentary trustees and an accountant for the trustees, all evidence was documentary in character. The trial court ordered that the Stipulation of Facts and Authenticity of Documents with Exhibits attached as well as other Exhibits be transmitted in the original to the appellate court as a part of the record in this case. Such exhibits include all of the court papers in the prior suit, and are stipulated to be the only pleadings raising issues of fact or of law in said suit.

The trial court sustained appellees’ plea of res judicata; determined that the testamentary trust did not terminate on December 28, 1957; determined the date upon which it will terminate; made provisions for protection of the interests of the minor involved; and directed the manner in which the assets of the trust should be distributed upon termination so as to effect a provision for equalization contained in Paragraph VI (d) of the Will.

The record reflects that E. A. Showers died on October 22, 1946. He was survived by his widow, Mary Elizabeth Showers, now Mary Elizabeth Scherck, and their three daughters Ann, Betty and Nancy, whose married names are Ann Showers Butler, Betty Showers Brown and Nancy Showers Slaughter. Prior to the execution of his will on April 27, 1943, five inter vivos trusts were executed. On April 1, 1937, E. A. Showers, joined by Mary Elizabeth Showers, executed a trust indenture known as the E. A. Showers Trust for the benefit of Ann and Betty, the two older daughters. On December 29th and 30th, 1938, Showers, joined proforma by his said wife executed two separate trust agreements for the benefit of Nancy, the youngest daughter, identified as the Nancy Showers Trust No. 1 and No. 1-A, and on said dates, Mrs. Showers, joined pro-forma by her husband, also executed two additional trust indentures for Nancy, known as the Nancy Showers Trust No. 2 and No. 2-A, making a total of five inter vivos trusts. Provisions were made in all of said inter vivos trusts as well as the testamentary trust that should any daughter die before termination thereof and distribution of the corpus, leaving children surviving, that such children would take, per stirpes, the share of their deceased mother had she survived. Each of the daughters of E. A. Showers, deceased, had minor children who were made defendants in the suit and their exact relationship was found by the court.

Ann Showers Butler became 35 years of age on July 24, 1963. Betty Showers Brown will become 35 years of age on November 10, 1965, on which date the E. A. Showers Trust, for the benefit of Ann and Betty will terminate. Nancy reached 21 years of age on December 28, 1957 and will have her 35th birthday on December 28, 1971.

The will of E. A. Showers, deceased, was duly probated. His widow since remarriage, Mary Elizabeth Showers Scherck, elected not to take under said will, but rather to take her one-half of the community property owned by her and E. A. Showers at the time of his death.

The same persons are trustees of the testamentary trust and the five inter vivos trusts.

Appellants urge seven points of error in substance as follows: (1) The trial court having found that the proper construction of the Will was that the testamentary trust terminated on December 28, 1957, title to appellants’ interest in the trust assets vested unconditionally in them on that date, (2) Since said date the trustees have functioned as trustees of a “passive” or “dry” trust, and the trust purposes having been accomplished, appellants have a right to demand immediate delivery of the trust assets, (3) the prior suit was not res judicata on the termination date of the trust, since the trustees had not wound it up between December 28, 1957 and the time of institution of the prior suit and had the obligation to function according to the terms of the trust until it is finally wound up, (4) the prior judgment was not res judicata on the termination date of the trust because a declaratory judgment is res judicata only as to matters declared by the judgment and not on matters which might have been declared, (5) the trial court rules contrary to the principle that a will should be construed to vest title at the earliest possible time by setting a termination date of the testamentary trust as December 28, 1971, (6) a proper construction of the will requires setting a termination date of the testamentary trust earlier than December 28, 1971, and (7) as the trial court has found that the proper construction of the will is that the termination date of the trust is December 28, 1957, the 21st birthday of Nancy Showers Slaughter, the trustees in their fiduciary relation to the beneficiaries cannot rely upon a technical plea of res judicata on issues that were not affirmatively in issue or affirmatively declared.

We have concluded that appellants’ points should be overruled and the judgment of the trial court affirmed.

Appellant’s contentions involve several of the trial court’s conclusions of fact and of law.

Conclusion of fact XXII reads as follows :

“The Court is of the opinion that the Will of E. A. Showers, deceased, is ambiguous, and that a proper construction of the date of termination of the Testamentary Trust established and created by such Will, were it not for the provisions of the final judgment in Cause No. 589,943, would be December 28, 1957, the date upon which Nancy Showers Slaughter attained the age of 21 years.
“From December 28, 1957, until Cause No. 589,943 was filed by the present plaintiffs a controversy and dispute existed between the plaintiffs and trustees as to the date upon which the Testamentary Trust would terminate, plaintiffs contending that the trust terminated when Nancy Showers Slaughter became 21 years of age on December 28, 1957, and the Trustees construing the Will of E. A. Showers, deceased, to provide for termination of the Trust when Nancy Showers Slaughter became 35 years of age, provided she was then living and such controversy has existed until the present time.
“The pleadings of plaintiffs in Cause No. 589,943, and the relief sought by them in such cause were premised upon the then existence of the Testamentary Trust. The pleadings and relief sought in such cause by the Trustees as defendants and cross-plaintiffs was likewise premised upon the continued existence of the Testamentary Trust. The judgment in said cause was premised upon the continued existence of the Trust and the relief granted thereby would have been improper if the Trust was not an existing Trust and had already terminated on December 28, 1957. Said judgment constitutes a binding adjudication and determination that the testamentary trust did not terminate on December 28, 1957.

Conclusion of Law Number One reads as follows:

“The final judgment dated April 25, 1962, in Cause No. 589,943, Ann Showers Butler, et al v. Elizabeth Showers Scherck, et al, in the District Court of Harris County, Texas, 113th Judicial District, determined and adjudicated that the testamentary trust had not terminated and was still in existence and the rights of the beneficiaries of said trust and the duties and responsibilities of the trustees thereof, together with the matters that should be considered by the trustees in the continued administration of the trust during the existence of the same were likewise declared and adjudicated and the contentions of plaintiffs that said testamentary trust terminated on December 28, 1957, when Nancy Showers Slaughter became 21 years of age was adjudicated and determined by said judgment contrary to their present contentions in this cause and said judgment binds all parties to this cause and is res ad judi-cata of the contentions of plaintiffs.

Paragraph (5) of the final judgment provides as follows:

“All of the parties to the present cause were parties to Cause No. 589,943 on the docket of the 113th District Court of Harris County, Texas, entitled Ann Showers Butler, et al v. Elizabeth Showers Scherck, et al, defendants. Final judgment was entered in said cause on April 25, 1962. No appeal from such judgment was perfected by any party thereto and the same constitutes a final judgment binding upon all parties to this cause. Said Judgment determined and adjudicated that the testamentary trust had not terminated and was still in existence and the rights of the beneficiaries of said trust and the duties and responsibilities of the trustees thereof, together with the matters that should be considered by the trustees in the continued administration of said trust during the existence of the same were likewise declared and adjudicated and the contentions of plaintiffs that said testamentary trust terminated on December 28, 1957, when Nancy Showers Slaughter became 21 years of age was adjudicated and determined by said judgment contrary to their present contentions in this cause and said judgment is res adjudicata of such contentions and it is the judgment of this Court that said testamentary trust did not terminate on December 28, 1957.”

Cause No. 589,943, filed by appellants in 1962, was also brought under the Declaratory Judgment Act and the Texas Trust Act seeking a construction of the Will and the Testamentáry Trust created thereby to the effect that the trustees had authority and discretion to increase the monthly payments to the beneficiaries, the three daughters of E. A. Showers, deceased; that future payments to the beneficiaries be based upon the reasonable discretion of the trustees in view of the circumstances and needs of each of the beneficiaries; and that the trustees be directed with respect to the matters to be considered by them in the exercise of their discretion, and for other appropriate findings and relief. By way of trial amendment in said prior cause, the trustees specifically plead and brought to the attention of the trial court Paragraph VI (d) of the Will, reading as follows:

“I have heretofore executed a trust agreement establishing a trust for the use and benefit of two of my daughters, wherein I have provided that these two daughters shall share equally in the income from said trust estate and in the corpus of said trust estate upon its dissolution and termination. I have also executed trust agreements establishing trusts for the use and benefit of my youngest daughter, Nancy Showers. If for any reason, upon final distribution of said trust estate or trust estates, either of my three daughters shall receive more than either of the others, my Trustees under this will shall make such distribution of the income and corpus of my estate under this will as will equalize the distributive shares of my three daughters shall receive an equal share in said trust estate, or trust estates, and in my estate taken and considered as a whole.”

The five inter vivos trusts heretofore mentioned were the only trusts created or established by E. A. Showers or his wife, Mary Elizabeth Showers during his lifetime, and are necessarily the trusts referred to in Paragraph VI (d) of the Will. Conclusions of Fact XXIV and XXV made the trial court in such connection are as follows :

“XXIV
“In the trust indenture of the ‘E. A. SHOWERS TRUST’ the donors expressly provided that such trust will terminate on November 10, 1965, which date is the 35th birthday of Betty Showers Brown, or on the date of the death of Betty Showers Brown, should she die prior to reaching her 35th birth-date, or the termination date decided upon by the trustees of such trust, under the provisions of paragraph VII of the trust indenture, should the trustee elect to act under said paragraph VII, whichever date is the earliest.
“XXV
“In the ‘NANCY SHOWERS TRUSTS NOS. 1, 1-A, 2 and 2-A,’ the trust indenture expressly provides that each and all of such trusts will terminate on December 28, 1971, which date is the 35th birthdate of Nancy Showers Slaughter, or on the date of her death, should she die prior to reaching her 35th birthdate or the termination date set by the trustees of said trusts under the provisions of paragraph VII of each of said trust indentures should the trustees elect to act under the provisions of said paragraph VII, whichever date is the earliest.”

The final judgment in said Cause No. 589,943, provided, among other things, as follows:

“H
“That a necessity exists for a proper construction of certain terms and provisions of Decedent’s Will, and the rights and powers which have been and may be now or hereafter validly exercised thereunder and in order to construe said provisions of the Will, the Court has determined the matters propounded to it in the pleadings of the parties heretofore filed as well as upon the trial of this Cause, as follows:
* * * * * *
“2. The amount of monthly payments to be made to Plaintiff and Cross-Defendant Daughters, as beneficiaries of the Trust, are not limited to the $300.00 per month expressed in Paragraph X of the Will.
“3. That hereafter during the existence of the Trust Defendant and Cross-Plaintiff Trustees shall pay, first from the net income of the Trust, and if and to the extent that such income is insufficient, from the principal of the Trust, such amounts as may be necessary in the discretion of the Trustees to provide for the needs of the Plaintiff and Cross-Defendant Daughters, as beneficiaries of the Trust; provided that, in view of the needs of the Plaintiff and Cross-Defendant Daughters, as beneficiaries of the Trust, as shown upon the trial hereof (considering pertinent facts and circumstances in regard to the respective situations of such beneficiaries and the Trust), in order to fulfill the intent of the Decedent, as set forth in the Will, such Trustees shall hereafter during the existence of the Trust make minimum payments of the amounts specified as follows:
“(a) In view of the needs of Plaintiff and Cross-Defendant Daughters, as beneficiaries of the Trust, as reflected by the circumstances surrounding the economic conditions of each such respective beneficiary and the Trust, as shown by the evidence herein, it would be proper, and the Defendant and Cross-Plaintiff Trustees are ORDERED to pay each Plaintiff and Cross-Defendant Daughter, as a beneficiary of the Trust, in order to fulfill the intent of the Decedent as set forth in the Will, a total of $2,000.00 for each month of the current fiscal year of the Trust, being the months of May, 1961, through April, 1962, instead of only $300.00 per month.
“(b) In view of the needs of Plaintiff and Cross-Defendant Daughters, as beneficiaries of the Trust, as reflected by the circumstances surrounding the economic conditions of each such respective beneficiary and the Trust, as shown by the evidence herein, it would be proper to pay each Plaintiff and Cross-Defendant Daughter, as a beneficiary of the Trust, in order to fulfill the intent of the Decedent as set forth in the Will, the sum of $2,000.00 per month, commencing with the month of May, 1962, and continuing monthly thereafter with respect to each such beneficiary so long as there are no sub-ficiary so long as there are no substantial changes in the circumstances of any Plaintiff and Cross-Defendant beneficiary of the Trust, or of the Trust, or of both, and the Trustees are ORDERED to so make such payments in the absence of any such substantial change.” (S.Exh. “P” p. 4-7)

It was stipulated that since the entry of judgment in the prior suit on April 25, 1962, each of the three appellants who are daughters of E. A. Showers, deceased, have been paid the sum of $2,000.00 per month from the testamentary trust as provided by said judgment, and that they each have been paid since said date the aggregate sum of $3,500.00 from all of the trusts.

Much of appellants’ argument is based on the premise that the trial court found that the testamentary trust terminated on December 28, 1957, when Nancy Showers Slaughter became 21 years of age. It is apparent from the conclusions of fact and of law made by the trial court that it was not so held. What the trial judge did hold was that he was precluded from so finding or concluding because the judgment rendered in 1962 in the prior suit between the same parties was binding and conclusive upon them and established that the testamentary trust still existed on April 25, 1962, and that the final judgment rendered on said date was res adjudicata against appellants as to the contention being urged by them in the instant case.

It is clear that the judgment in the prior cause, rendered on April 25, 1962 was necessarily premised upon the continued existence of the testamentary trust. The relief granted by said judgment would have been improper if the trust had terminated on December 28, 1957 and if it was not an existing trust at the time of said suit and judgment. This was expressly recognized by the trial court in the instant case by his findings and conclusions to the effect that the pleadings and relief sought by all parties in the prior suit were premised upon the then existence and continued existence of the trust.

If the testamentary trust had terminated on December 28, 1957, or prior to the filing of the prior suit in 1962, the three daughters of E. A. Showers, deceased, would have been entitled to demand that the assets of the trust be delivered to them; and, in such event, the trustees would not have been vested with discretion or power, but would have been required to comply with such demand and wind up the trust. It is further apparent that if the trust had terminated on December 28, 1957 there would have been no necessity for the trial court in 1962 in the prior suit to provide for monthly payments to be made by the trustees to the daughters in the future on the basis of certain factors which they were instructed to take into consideration.

In Williams v. Jackson, 138 Tex. 352, 159 S.W.2d 99, 101 (1941), our Supreme Court, speaking through Chief Justice Alexander, held as follows:

“In 30 American Jurisprudence p. 930, it is said: ‘Under this rule, if the record of the former trial shows that the judgment could not have been rendered without deciding a particular matter, it will be considered as having settled that matter as to all future actions between the parties, and if a judgment necessarily presupposes certain premises, they are as conclusive as the judgment itself.”

The rule enunciated in Williams v. Jackson, supra, has been the law of this State since the early decision of the Supreme Court in the case of Tadlock v. Eccles, 20 Tex. 782 (1858), wherein the court held:

“There is no better settled principle, than that the judgment or decree of a Court of competent jurisdiction, directly upon the point, or necessarily involving the decision of the question, is conclusive between the parties and their privies, upon the same matter coming directly in question in a collateral action, in the same or another Court of concurrent jurisdiction. It can make no difference in the application of this principle, what may have been the subject matter of the judgment, provided it be one of which the Court rendering it had jurisdiction. If the Court rendering the judgment had jurisdiction of the subject matter and the parties, its decision is conclusive until reversed on appeal or annulled by a proceeding for that purpose.”

In the case of Stephens County v. Hefner, 118 Tex. 397, 16 S.W.2d 804, 807, (1929), our Supreme Court also stated the applicable rule as follows:

“It has been repeatedly held that a proposition assumed or decided in order to establish another proposition which expresses the conclusion of the court is as effectually passed upon and settled as the very question directly decided. Warren School District [No. 28] v. Stocker, 42 N.J.L. 115; Buchner v. Chicago, M. & N. W. Ry. Co., 60 Wis. 264, 19 N.W. 57; Brown v. Chicago & N. W. R. Co., 102 Wis. 137, 77 N.W. 748, 78 N.W. 771, 44 L.R.A. 586. In the case of Brown v. Chicago & N. W. R. Co., supra, the rule is well stated as follows: ‘It is a mistaken opinion that nothing is decided in a case except the result arrived at. All the propositions assumed by the court to be within the case and all the questions presented and considered, and de-librately decided by the court, leading up to the final conclusion reached, are as effectually passed upon as the ultimate questions solved. School Dist. No. 38 [28] v. Stocker, 42 N.J.Law, 115. The judgment is authority upon all points assumed to be within the issues which the record shows the court deliberately considered and decided in reaching it.”

See also Kirby Lbr. Corp. v. Southern Lbr. Co., 145 Tex. 151, 196 S.W.2d 387, 169 A.L.R. 174 (1946), and City of Lubbock v. Stubbs, 160 Tex. 111, 327 S.W.2d 411 (1959), to the same effect as the above-cited cases.

From the foregoing discussion it is apparent that appellants in the prior suit filed in 1962 sought and obtained a judgment determining their rights and the legal relations between themselves and the appellee Trustees during the continued existence of the Testamentary Trust. In said prior suit appellants also obtained coercive relief as to the manner in which the Trustees would exercise discretion and control during the continued existence of the Trust. The record establishes that in the prior suit the parties and the trial court were dealing with the trust on the basis that it was active and had not terminated at the date of judgment on April 25, 1962, and which was to continue thereafter. The judgment so rendered did not determine the date upon which the Trust would terminate but it did adjudicate and establish that it was in existence as an active trust at that time and had not theretofore terminated. The daughters of E. A. Showers, deceased, the beneficiaries under the said Trusts, each testified in this case that she was aware that the controversy and dispute between the beneficiaries and the trustees concerning the date upon which the Testamentary Trust would terminate had existed for some time prior to filing of the 1962 suit.

The trial court correctly sustained appel-lees’ plea of res judicata and properly held that appellants were bound by the prior judgment. The findings, conclusions and judgment of the trial court in the instant case correctly hold and establish that the Testamentary Trust created by the Will of E. A. Showers, deceased, did not terminate on December 28, 1957, as is here contended by appellants.

By appellants’ fourth point, the contention is made that a declaratory judgment is res judicata only as to matters declared by the judgment and not as to matters that might have been declared, and, therefore, the prior judgment was not res judicata on the termination date of the trust. Although appellees contend that the prior judgment was res judicata as to the continued existence of the trust and that it did not terminate on December 28, 1957, they agree that such prior judgment was not res judicata on the actual termination date of the testamentary trust. The present judgment determined the latter issue.

Appellant’s reliance upon the case of Cooke v. Gaidry, 309 Ky. 727, 218 S.W.2d 960, 10 A.L.R.2d 778 (1949), is misplaced. The decision referred to followed an earlier appeal of the case reported in 301 Ky. 216, 191 S.W.2d 390 (1945). The opinion in the later appeal reflects that no specific relief was requested until after the mandate was filed in the trial court following the first appeal. The second opinion also quotes a section of the Kentucky Code of Civil Practice (Declaratory Judgment Act, Section 639a-4) which is similar to, but not in the exact wording of Section 8, Article 2524-1, V.A.T.S. (Uniform Declaratory Judgments Act), providing for further relief based upon a declaratory judgment. Appellants particularly rely upon the following portion of the second opinion in Cooke v. Gaidry as follows:

“But appellees insist that they are entitled to have the judgment affirmed because the Court should have sustained their demurrer to the petition for further relief and to have it dismissed. The basis of this argument is that it was the duty of appellant in the original declaratory judgment action to seek all the relief to which he was entitled and not try the case piecemeal; and since appellant in his answer to the petition under the declaratory judgment action could have obtained the relief he now seeks, the former judgment is conclusive under the doctrine of res adjudicata or estoppel in law. Generally a former judgment is conclusive not only of all matters actually adjudicated thereby, but in addition, as to all matters which could have been presented for adjudication in the original action. But suits for declaratory judgments do not fall within this rule. The Declaratory Judgment Act itself provides in Section 639a—4 of the Civil Code of Practice:
‘Further relief, based on a declaratory judgment, order or decree, may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief, either in the same proceeding wherein the declaratory judgment, order or decree, was entered, or, in an independent action.’ ”

In Cooke v. Gaidry, supra, it thus appears that the second case involved additional and specific relief not theretofore sought. The second action was not brought to obtain a declaration of the status or relationship of the parties in a different manner than was determined in the prior proceeding, as appellants seek to do in the instant case.

All we need to hold here is that the doctrine of res judicata does apply to matters which the trial court was required to determine in order to render the judgment in the prior suit. In this case, as we have heretofore pointed out, the judgment in the prior suit was necessarily premised upon the continued existence of the testamentary trust after December 28, 1957.

The foregoing discussion In part disposes of appellants’ seventh point, which in effect contends that the trustees in their fiduciary relation to the beneficiaries cannot rely upon a technical plea of res judicata on issues that were not affirmatively in issue or affirmatively declared, since the trial court has decreed that the proper construction of the will is that its termination date is December 28, 1957. Of course, appellants cannot properly rely upon the last portion of such contention because such issue, on account of res judicata, has been established against them. In addition, there is no reason why appellees are precluded from relying upon a plea of res judicata on the ground that the prior judgment was binding upon appellants against their present contention as to such termination date. It is the duty of testamentary trustees to carry out the instructions of the will. McMullen v. Sims, 37 S.W.2d 141 (Tex.Comm.App.1931, holdings approved). The record herein establishes that the trustees over a long period of time before filing of the prior suit, consistently took the position that paragraph VI (d) of the testamentary trust fixed its termination date as that upon which the last of the inter vivos trusts would terminate, so that equalization could be accomplished out of the assets of the testamentary trust. Appellants brought about the adjudications in the prior suit and the judgment therein became final without appeal or other action to set it aside. Appellants are bound by their conduct and they cannot be heard in the present proceeding to take an inconsistent position and secure a decision that the judgment in the prior suit was wrong and that the testamentary trust had theretofore terminated. See Smith v. Chipley, 118 Tex. 415, 16 S.W.2d 269 (1929). It is also true that the trustees owe a duty to protect the interest of the minor contingent beneficiaries of the trusts. The general rule is stated in 90 C.J.S. Trusts § 247, page 235, as follows:

“Where there are several beneficiaries, the trustee owes the same fiduciary duty to all of them to protect their respective interests, without partiality or favor to some beneficiaries at the expense of the others. So a trustee owes the same fiduciary duty to a contingent beneficiary as to one with a vested interest in so far as necessary for the protection of the rights of the contingent beneficiary in the trust property; and a trustee is bound in the absence of instructions to the contrary to administer the trust with an eye to the remainder interest as well as to the interest of the life tenant, and he cannot slight one interest for the benefit of the other.”

The trustees herein are not required to recognize an agreement of the adult appellant beneficiaries to compel termination of the trust where the result would be the destruction of the rights and interests of the contingent minor remaindermen and where such action would be contrary to the express provisions of the will. Restatement of the Law of Trusts, Second Edition, Sections 337 and 340.

Appellants’ point seven is overruled.

By their point five appellants contend that by setting the termination date of the testamentary trust as December 28, 1971, the trial court rules contrary to the principle that a will should be construed to vest title at the earliest possible time. By their point six appellants contend that even if the plea of res judicata be binding a proper construction of the will requires setting a termination date of the testamentary trust earlier than December 28, 1971, the 35th birthday of Nancy Showers Slaughter, youngest of the three daughters.

The provisions of the judgment relating to the time and manner of termination of the testamentary trust as provided in Paragraph VI (d) of the will are set out in Paragraphs 6 and 7 thereof, as follows:

“(6) The Court is further of the opinion and finds and hereby DECREES and ADJUDICATES that the testamentary trust will terminate on the date upon which the last of the above mentioned five inter vivos trusts to terminate so terminates and expires as found and decreed in previous paragraphs (3) and (4) of this judgment irrespective of the date of death of Mary Elizabeth Showers Scherck. If any of the adult beneficiaries be dead at such termination date leaving minor children or issue entitled to receive the share which their deceased mother would take if living, such portion shall continue to be held in trust for the benefit of such minor beneficiaries until they are 21 years of age (provided such trust as to such minor beneficiaries is not previously terminated by the trustees pursuant to the discretion vested in the trustees as herein-above found and adjudicated) but the equalization provision contained in paragraph 6(d) of the Will of E. A. Showers, deceased shall be effected notwithstanding the continuation of the trust for such minor beneficiaries.
“(7) It is further FOUND, ORDERED and DECREED that upon termination of the testamentary trust as provided by paragraph (6) of this judgment, in the event that Ann Showers Butler, Betty Showers Brown and Nancy Showers Slaughter are each living, the trustees of said trust in order to carry out the equalization provisions contained in paragraph 6 (d) of the Will of E. A. Showers, deceased, shall giving due consideration to the character and status of the assets of said trust, as promptly as possible after delivery of the corpus and accumulated income of the last of the above mentioned five inter vivos trusts to terminate to the beneficiary or beneficiaries entitled to receive the same, render their final account of said testamentary trust and distribute the corpus and accumulated income thereof to Ann Showers Butler, Betty Showers Brown and Nancy Showers Slaughter, and in making such distribution the trustees of such testamentary trust shall distribute an amount to each of said three daughters which, when added to the amount received by Ann Showers Butler and Betty Showers Brown from both income and corpus of the E. A. Showers Trust above described, and by Nancy Showers Slaughter from both income and corpus of the Nancy Shower Trusts Nos. 1, 1-A, 2 and 2-A above described, and the amount received by each of said three daughters from both the income and corpus of the testamentary trust, will result in the receipt by each of said daughters of an equal share of the E. A. Showers Trust, the Nancy Showers Trusts Nos. 1, 1-A, 2 and 2-A and the testamentary trust, taken and considered as a whole, but in the event however, that either Ann Showers Butler, Betty Showers Brown or Nancy Showers Slaughter is not then living, the share to which either of them would be entitled if living as above provided shall continue to be held and administered by said trustees for the benefit of their minor children or issue until the age of 21 years and at such time the share to which any such minor is entitled shall then be paid or delivered to such minor.”

Paragraphs 3 and 4 of the findings referred to in the above mentioned paragraph (6) of the judgment are as follows:

“(3) Under the provisions of the E. A. Showers Trust above mentioned the same will terminate on November 10, 1965, which date is the 35th birthdate of Betty Showers Brown, or on the date of the death of Betty Showers Brown, should she die prior to reaching her 35th birthdate, or the termination date decided upon by the trustees of such trust, under the provisions of paragraph VII of the trust indenture, should the trustee elect to act under said Paragraph VII, whichever date is the earliest.
“(4) Under the provisions of the Nancy Showers Trusts Nos. 1, 1-A, 2 and 2-A, each of said trusts will terminate on December 28, 1971, which date is the 35th birthdate of Nancy Showers Slaughter, or on the date of her death, should she die prior to reaching her 35th birthdate or the termination date set by the trustees of said trusts under the provisions of paragraph VII of each of said trust indentures should the trustees elect to act under the provisions of said paragraph VII, whichever date is the earliest.”

Paragraph VI (d) of the Will sometimes referred to by the trial court as paragraph 6 (d) is repeated here, as follows:

“I have heretofore executed a trust agreement establishing a trust for the use and benefit of two of my daughters, wherein I have provided that these two daughters shall share equally in the income from said trust estate and in the corpus of said trust estate upon its dissolution and termination. I have also executed trust agreements establishing trusts for the use and benefit of my youngest daughter, Nancy Showers. If for any reason, upon final distribution of said trust estate or trust estates, either of my three daughters shall receive more than either of the others, my Trustees under this will shall make such distribution of the income and corpus of my estate under this will as will equalize the distributive shares of my three daughters in the combined estates, so that each of my three daughters shall receive an equal share in said trust estate, or trust estates, and in my estate taken and considered whole.”

The record reflects that on May 31st, 1963, the three appellant daughters of E. A. Showers, deceased, joined pro forma by their respective husbands, entered into a written “Agreement for Equalization” whereby, among other things, they attempted to provide as between themselves “that the equalization provision under the terms of the said testamentary trust be settled to the mutual advantage of the said three beneficiaries” on the premise that the testamentary trust terminated on December 28, 1957, the 21st birthdate of Nancy Showers Slaughter. Said agreement provided methods of valuation and distribution for purposes of equalization. Appellants offered the said agreement as their Exhibit No. 1. It amounted to an admission that, properly construed, the will requires an equalization between the five inter vivos trusts and the testamentary trust, as is provided by Paragraph VI (d) of the will. However, such Paragraph expressly provides that such equalization cannot be effected until the termination of the last of the inter vivos trusts.

In Lanius v. Fletcher, 100 Tex. 550, 101 S.W. 1076 (1907), our Supreme Court construed a testamentary trust contained in the will of Mary A. Gilpin. The plaintiffs there sought to require the executor and trustee to close the estate and deliver the property to the legatees and beneficiaries. At page 1078 of the opinion the court said:

“In applying the law as administered in Texas to the facts of this case, we must bear in mind that Mrs. Gilpin, as the owner of the property in question, had the absolute right to dispose of it by her will as she saw fit, and to put upon the title or the use of the property such limitations as she deemed proper, not in violation of law nor against public policy. Mrs. Fletcher, the daughter, had only such interest in the property as her mother conferred upon her, and it is not for the courts to say that the limitation created by the trust is unreasonable or unjust, if it be lawful. Broadway Nat. Bank v. Adams, 133 Mass. 170, 43 Am.Rep. 504; Claflin v. Claflin, 149 Mass. 19, 20 N.E. 454, 3 L.R.A. 370, 14 Am.St.Rep. 393. In the latter case, the court said: ‘A testator has a right to dispose of his own property with such restrictions and limitations, not repugnant to law, as he sees fit, and his intentions ought to be carried out, unless they contravene some positive rule of law, or are against public policy’.”

Appellants’ contentions under their points five and six can only be sustained if a number of the provisions of the will are ignored and no effect is given to them. Their position, which is based primarily upon the provisions of Paragraphs X, VI (b) and VII of the will, would require the court to ignore the provisions, particularly, of Paragraphs VI(a), VI(c) and VI(d), thereof. This the court cannot do without violating the settled rule set out in 90 C.J.S. Trusts § 161, pp. 22-23, as follows:

“In construing a trust, the whole instrument creating or declaring the trust must be considered, in order to determine the settlor’s intent, and not merely any particular provision, part, clause, or phrase by itself, and consideration should not be given merely to disjoined parts. All parts, provisions, or terms of the instrument are to be considered, each paragraph provision, or phrase must be read in the light of the whole instrument, and not in isolation, and no clause is to be given undue preference. The meaning of a part of a provision must be determined from the provision as a whole.”

The provisions of paragraph VI (d) of the will clearly establish that one of the primary and dominant purposes of the testamentary trust was to provide for an equalization so that each of the three daughters of E. A. Showers, deceased, would receive an equal amount from the inter vivos trusts and the testamentary trust, taken and considered as a whole, and, in order to achieve such purpose, that the testamentary trust would continue and final distribution from it would not be made to the beneficiaries who would then he entitled to the same until such time as the said inter vivos trusts had terminated and it could be determined what amount each daughter had received, or would have received had she lived, therefrom. It should be kept in mind that in all of said trusts, the minor children of appellant daughters of E. A. Showers, deceased, were named contingent beneficiaries in the event of death of their respective mothers.

The trial court properly held that the testamentary trust will terminate on the date upon which the last of the five inter vivos trusts terminates, irrespective of the date of death of Mary Elizabeth Scherck, and that if any of the adult beneficiaries be dead at such termination date leaving minor children or issue entitled to receive the share which their deceased mother would take if living, such share is to be held in trust for minor beneficiaries until they are 21 years of age; provided that such trust as to such minor beneficiaries is not previously terminated by the trustees pursuant to discretion vested in them, as was found and adjudicated in said judgment of the trial court, but that the equalization provision contained in paragraph VI (d) of the will of E. A. Showers, deceased, shall be effected notwithstanding the continuation of the trust for such minor beneficiaries.

By supplemental brief appellants argue, under their third and fourth supplemental points, that under paragraph VII of the inter vivos trusts the present trustees have the discretion to terminate the same and that by his will E. A. Showers intended to amend and did amend such inter vivos trusts of which he was donor in order to bring about a termination of them when Nancy Showers Slaughter became 21 years of age and effect the equalization provided by his will at that time. The difficulty with such contention is that appellants did not undertake to allege or prove in this case that the trustees had abused their discretion or had acted dishonestly, in bad faith or arbitrarily in failing to terminate the inter vivos trusts herein mentioned. It is undoubtedly the general rule that a court will not interfere with trustees in the exercise of a discretionary power except where proper grounds are plead and proved. In Scott on Trusts, Vol. 3, Sec. 334.1, page 1827, it is said:

“Where discretion is conferred upon the Trustee to terminate the trust, he may be guilty of an abuse of discretion in terminating the trust as well as in refusing to terminate it. * * * If there is no standard by which the reasonableness of the trustee’s judgment can be tested, the court will not interfere with the exercise of discretion, unless he acts dishonestly or from an improper motive.”

Such issues were not before the trial court and cannot be properly raised on this appeal. As has heretofore been noted, the minor defendants herein were represented in this case by a guardian ad litem appointed by the trial court. In the absence of pleadings and proper notice of an action having for its purpose a termination of the inter vivos trusts or requiring the trustees to exercise their discretion and terminate them, the trial court was without power and authority to try out and adjudicate such issues as to such minors, particularly in view of the limited authority of said guardian ad litem. Such issues might be the subject of another law suit but they are not involved in the instant one.

In addition to their counter points, appel-lees have urged, in the alternative, three cross-points of error. In view of our disposition of appellants’ points and appel-lees’ counter points, it is unnecessary to pass upon the said cross-points.

The judgment of the trial court is affirmed.