author: BARRETT, Commissioner.

text:
    Thomas E. BARTELS, Kathleen M. Bartels, Judith A. Bartels and Georgine L. Bartels, minors, by their mother and next friend, Kathleen P. Bartels, and Kathleen P. Bartels, Widow of George E. Bartels, Respondents, v. CONTINENTAL OIL COMPANY, a corporation, Appellant.
    No. 50254.
    Supreme Court of Missouri, Division No. 2.
    Nov. 9, 1964.
    Motion for Rehearing or for Transfer to Court En Banc Denied Dec. 14, 1964.

      William W. Shinn, Kansas City, for respondents, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel.
    J. D. James, Thad C. McCanse, Dwight L. Larison, Houts, James, McCanse & Larison, Kansas City, for appellant.
   BARRETT, Commissioner.

George E. Bartels died as a result of injuries sustained while engaged in the performance of his duties as a captain in the Kansas City, Missouri, fire department. In this action to recover damages for his negligent injury and death his widow and four minor children have recovered a judgment of $25,000. The defendant-appellant, Continental Oil Company, operated a bulk storage plant and filling station on the northwest side of Southwest Boulevard' at 31st Street in Kansas City, Kansas, abutting the Missouri-Kansas state line. On the front of the lot, facing Southwest Boulevard, there was a filling station and to the rear of the station on concrete saddles there were four 21,000 gallon capacity storage tanks. Tank number one contained 6,628 gallons of kerosene, tank number two contained 14,307 gallons of regular gasoline, tank number three contained 3,051 gallons of regular gasoline and tank number four contained 15,555 gallons of premium gasoline.

On August 18, 1959, about eight o’clock in the morning, Fred Berry, one of the appellant’s tank-truck drivers was engaged in loading his truck from storage tanks two and four. Hoses from these two tanks were open at the same time, filling truck compartments three and five. Berry was on the truck’s catwalk when Jim Mitchum, another tank-wagon driver on vacation, climbed up the side of the truck to show Berry his new cigarette lighter. Almost immediately (possibly when Mitchum flicked his lighter) flames flashed from the tank-truck’s fifth compartment. Berry cut off the hose from one of the storage tanks but ran from the blazing flames and did not cut off the hose from the other storage tank and throughout the ensuing fire that open hose continued pouring gasoline into the flames. Firemen from both Kansas City, Missouri, and Kansas City, Kansas, responded to the alarm and with hand lines, almost wholly from Southwest Boulevard, fought the fire with water. The streams of water were employed to confine the burning gasoline to the area of the storage tanks thereby preventing the gasoline from running down Southwest Boulevard and into the sewers of Kansas City, Missouri, endangering larger areas. About 9:15 storage tank number one ruptured at its rear and the area was engulfed in flaming kerosene intensifying the heat in the area of the other three tanks. In the next half hour tanks two and three ruptured, and about 9:40 tank number four left its concrete cradle and “rocketed” or was catapulted 75 to 100 feet over the filling station into Southwest Boulevard and “a ball of fire” engulfed the several crews of fire fighters in the street, killing one bystander and five firemen, including Captain Bartels, and injuring twenty-three people.

Since, as a general rule, “the duty of a possessor of land to firemen is the same as to licensees” (Anderson v. Cinnamon, 365 Mo. 304, 282 S.W.2d 445, 447, 55 A.L.R.2d 516), it is urged that upon this record there is no evidence of a violation of duty by Continental. It is said that the appellant’s duty was not enlarged by the fact that Bartels was in the street when injured, that “(t)here was no unusual, hidden hazard that was unknown to the deceased and known to the defendant” and therefore there was no duty to warn that the tanks might rupture. In this connection it is urged that there was “no duty to warn deceased that the storage tank in question might rocket onto the street because (1) that fact was not known by the defendant (Continental); and (2) even had such a duty existed, there was no evidence that defendant had an opportunity to give such a warning.” Further precisely pointing up the appellant’s contention that its motions for a directed verdict should have been sustained is its claim that the respondents’ instruction one was “reversibly erroneous” in several respects, but particularly in that it “was not supported by the evidence.”

It is not necessary to a disposition of this appeal to enter upon an extended discussion of the general rules or to determine Bartels’ status. The general rules are set forth and the applicable cases collected in Anderson v. Cinnamon, supra, and its annotation, 55 A.L.R.2d 525, “Duty of a possessor of land to warn adult licensees of danger,” and see more recently 86 A.L. R.2d 1205, “Duty and liability of owner or occupant of premises to fireman or policeman coming thereon in discharge of his duty.” And upon the merits of the cause there are no precisely applicable and governing Kansas cases. Nevertheless it is safe to say that Kansas applies the general rules both as to the status of firemen and the duties of landowners, particularly in the maintenance of gasoline storage facilities. Buchholz v. Standard Oil Co. (1922) 211 Mo.App. 397, 244 S.W. 973; Pinson v. Young, 100 Kan. 452, 164 P. 1102, L.R.A. 1917F, 621. In the Buchholz case gasoline storage tanks at Hays, Kansas, (an installation comparable to that of Continental’s here) burned and exploded and when the larger tank exploded “one end of it was shot southward across the railroad tracks and against a flourmill which was about 200 feet away, the other end, like a torpedo, went toward the north, * * * and landed in the rear of a house which stood about 500 feet distant.”

Under these general rales, admittedly, an experienced fire captain would of course accept the presence of kerosene and gasoline as a known hazard of a fire in a gasoline storage facility. Anderson v. Cinnamon, supra; Gannon v. Royal Properties, 285 App.Div. 131, 136 N.Y.S.2d 129; Wax v. Co-Operative Refinery Ass’n, 154 Neb. 805, 49 N.W.2d 707. But the law does not compel firemen in fighting a fire to assume all possible lurking hazards and risks (Gannon v. Laclede Gas Light Co., 145 Mo. 502, 46 S.W. 968, 43 L.R.A. 505); it may not be said that a “fireman has no protective rights whatever.” Campbell v. Pure Oil Co., 15 N.J.Misc. 723, 194 A. 873, 875; Wainscott v. Carlson Const. Co., 179 Kan. 410, 295 P.2d 649. As indicated, the majority of cases, including Anderson v. Cinnamon and other cases relied on by the appellant, recognizes certain modifications or exceptions to the general rules relating to landowners and firemen and it is these principles upon which the respondents rely, —“that an owner or occupant of premises which firemen enter upon in the discharge of their duty may be held liable to a fireman injured by a hidden danger on the premises, where the owner or occupant knew of the danger and had an opportunity to warn the fireman of it.” 86 A.L.R.2d 1. c. 1214, 55 A.L.R.2d 1. c. 526. And the essentially meritorious question upon this appeal is whether there was upon this record evidence to support the inference and finding of a hidden danger known to the appellant Continental Oil Company for “(c)ertainly, no meritorious reason can be advanced to justify the view that a property owner, with knowledge of a hidden peril, should be allowed to stand by in silence when a word of warning might save firemen from needless peril. * * * Although firemen assume the usual risks incident to their entry upon premises made dangerous by the destructive effect of fire, there is no valid reason why they should be required to assume the extraordinary risk of hidden perils of which they might easily be warned.’” Shypulski v. Waldorf Paper Products Co., 232 Minn. 394, 401, 45 N.W. 2d 549, 553; Jenkins v. 313-321 W. 37th St. Corp., 284 N.Y. 397, 31 N.E.2d 503.

Continental’s four storage tanks, constructed of quarter-inch steel, were installed in 1924. They were 30 feet long, eleven feet in diameter, with fiat ends, and when installed as well as 35 years later “were fitted with two-inch pressure valves.” Originally the tanks were installed perpendicularly but in 1958 Continental Oil Company dismantled the storage facilities, removed the two-inch vents, and installed the four tanks horizontally on the concrete saddles. But in changing or replacing the installation Continental again placed two-inch vents on the tops of the storage tanks. And in response to interrogatories and “requests for admissions” Continental stated that the “four tanks was (sic) vented only by a single A. Y. McDonald 2-inch Plate 925 combination gauge hatch and P & R valve, known as a ‘breather valve.’ * * * that these said four tanks had no vent or mechanism designed to relieve pressure (such as might occur during a fire) other than whatever relief was provided by the single 2-inch diameter breather valve on each tank.” The appellant has made unnecessary further recitation of the facts in connection with these valves because' in its brief there are these further concessions; “(t)he four tanks in question were vented with 2" pressure and relief valves, which were admittedly (and obviously) not adequate to keep these tanks from rupturing;” and, “we will concede for the purpose of that question only (viewing the record favorably to the respondents), without admitting it, that by reason of the size of the vents, defendant did not maintain the premises in a reasonably safe condition, and that that was the cause of the ruptures.”

In addition to these admissions the Chief of the Fire Prevention Division of the Kansas City, Missouri, Fire Department, who was present while the fire was in progress and when tank number four rocketed, and afterwards made an investigation, testified that the reason the tanks ruptured was that “(t)he vents were too small.” He testified that the Flammable Liquids Code required “5-1/2 inches of emergency venting.” An expert witness, “a protection engineer specializing in petroleum hazards,” referred to all the literature connected with the petroleum industry (with which Continental was familiar) and in connection with his years of experience in the industry, testified that for petroleum storage tanks of 18,000 to 25,000 gallon capacity “a free circular opening of 5-1/2 inches in diameter” was required. As he testified on both direct and cross-examination this witness gave the formulas and made the computations as to the “normal safety operating pressures of a tank” as well as the pressures built up in a storage tank during a fire. He testified that tank number four rocketed because the two-inch vent was not large enough to take care of the vapor generated by the fire. And, he said, “I can say without any worry at all that no tank that has been equipped with the vent of the size specified in these suggested standards (5-1/2 inches) has ever rocketed.” The appellant’s expert, a professor of chemical engineering at Kansas University, was of the opinion that a 5-1/2 inch valve would not have prevented the rocketing; but even this witness was of the opinion that a 7-1/2 inch vent “would have been sufficient to vent all the vapor which was formed” in this fire and would have prevented the rocketing of tank number four.

And upon this particular phase of the case, in its answers to interrogatories and in counsel’s opening statement, there were these additional admissions: “that Continental Oil Company and Continental Oil Company officials, the officials of my client, knew at the time of this casualty that a two-inch vent was small enough that there was more apt to be a rupture in the event of an exposure fire * * *. And I want to tell you here at the outset that there is no real issue about that, there is no issue whatever. These were old-fashioned tanks. The two-inch vents in these tanks were smaller than was recommended by the literature, by the National Fire Protection Association and the Association of Petroleum Industries * * * And further of knowledge by the industry, he said, “Our company people * * * read the literature, * * * their safety director belonged to some of these organizations, and was on committees, and so they did know full well long before 1959 that a larger emergency vent would be safer.”

While Bartels was an experienced fireman and was therefore necessarily aware of some of the hazards of petroleum products fires, there is no fact or circumstance indicative of any knowledge on his part that these particular storage tanks were equipped with inadequate safety vents. And as the appellant says in its brief “(a)lthough the men on the line knew the No. 4 tank would probably rupture (since the three other tanks had ruptured), they did not know the tank would rocket in the freakish manner in which it did. They had never seen a tank act like that. The action of this particular tank was entirely unpredictable.” Also aerial photographs taken while the fire was in progress and before tank number four rocketed, as well as the testimony of witnesses, reveal that it was not possible through the enormous black smoke clouds and flames that firemen or anyone else could or did see the two-inch valves on the tanks, much less appreciate their danger. The fire prevention chief and other firemen testified that they did not know the size of the safety valves on the tanks. Six of Continental’s employees, including its bulk plant supervisor, were present prior to and during the course of the fire and of course there were no warnings in any manner to the firemen that the tanks were equipped with the inadequate two-inch vents. Compare Wax v. Co-Operative Refinery Assn., supra, in which there was a warning before the last tank exploded. And, it may be added, there were no dikes (Campbell v. Pure Oil Co., supra), warning signs or other safety devices. Some of the firemen heard a “hissing sound” before tank number four rocketed but others heard no such sound.

Further and explicit details could be recited and permissible inferences indicated, it is sufficient, however, to say that in these particularly detailed circumstances the evidence favorable to the plaintiffs supports the finding of a known hidden danger of which there was no warning whatever, a hazard that in any and all events Bartels as a fireman was not bound to accept as a usual peril of his profession. In these circumstances reasonable minds could differ and Continental was not for any of the reasons advanced here entitled to a directed verdict Aside from Buchholz v. Standard Oil Company, supra, which treated the hazard as “a nuisance,” the case nearest in point on its facts is Lamb v. Sebach, 52 Ohio App. 362, 3 N.E.2d 686, in which in 1935 a fireman was injured when a 10,000 gallon capacity storage tank exploded. In that case a two-inch valve had been reduced to “three-eighths of an inch, and * * * such reduction reduced the effectiveness of these vents as a safety device 97 per cent, and made the tanks dangerous.” There plaintiff’s reliance was upon a “hidden and concealed danger concerning which he was given no notice or warning.” The Ohio court concluded that “(u)nder this state of the proof it surely was a question of fact for the jury to determine whether it was or was not the affirmative act of the defendants in restricting the size of the vent on Tank No. 2 that caused the plaintiff’s injury, and which was the proximate cause thereof.” Or as the Kansas court said when dynamite exploded and injured a fireman, “It is next contended that the fire, and not negligent storage of the dynamite, was the proximate cause of Pinson’s wrongful death. Both were proximate causes. The fire alone would not have caused his death. The dynamite alone might not have caused it. Perhaps the fire was the result of negligence. The storage of the dynamite was undoubtedly so. These two contributing •delinquencies, the fire and the negligent storage of the dynamite, both proximate, •wrought this result.” Pinson v. Young, 100 Kan. 452, 455, 164 P. 1102, 1104.

In considering the merits of the cause appellant’s objections to instruction one have for the most part been disposed of, •certainly so the objections as to its duty, that the instruction was not supported by the evidence and the claim that it contained a positive misdirection of law. The instruction is too long to quote and analyze fully, although it was not confusing and misleading as was the single sentence eight 'hundred word instruction in Johnson v. Missouri-Kansas-Texas R. Co., Mo., 355 S.W.2d 32, 35. There is no claim that the instruction is lacking in factual detail and its essence is that it hypothesized a finding of a 21,000 gallon capacity tank “vented only with a 2-inch vent,” that it had been maintained for a number of years, that Continental “knew or should have known that in the event of a sustained exposure fire in the vicinity of such tanks a 2-inch vent would not adequately vent such tanks and that a rupture would likely occur, * * * and that defendant Continental Oil Company failed to provide or install any device reasonably designed to prevent tank No. 4 from rupturing and rocketing as it did on August 18, 1959.” The instruction hypothesized Bartels’ attendance upon the fire, in brief, the details of the fire, the pressure in the tank, the rocketing and finally a finding that Continental “could have reasonably expected firemen not to realise the particular risk involved that such tank might rocket, and that Continental failed to warn George Bartels or his superiors of such risk, and that on the morning in question George Bartels was exercising ordinary care for his own safety under the circumstances * *

It may be that the italicized language is the equivalent of a specific submission that Bartels “was unaware of the danger involved.” Wattels v. Marre, Mo., 303 S.W.2d 9, 66 A.L.R.2d 433. But if it is not an equivalent hypothesis, it is not necessary to collect and distinguish the cases on this subject, it is sufficient to say that in the business invitee cases the purpose of the “no knowledge” doctrine in instructions is to explain the owner’s “nonliability on a showing of ‘obviousness’ ” of the danger (Swanson v. Godwin, Mo., 327 S.W.2d 903, 912) or of actual knowledge of the hazard by the invitee. Gregorc v. Londoff Cocktail Lounge, Mo., 314 S.W.2d 704, 708. It may well be in the business invitee cases where the plaintiff falls, due to obj ects on floors or stairways, that it is an essential element of the plaintiff’s case “to prove and submit the proposition that she had no knowledge of the existence of the danger and that defendants breached their duty by not warning her of it.” Schwartz v. S. S. Kresge Co., 238 Mo.App. 1165, 1172, 185 S.W.2d 37, 40; Milliken v. Trianon Hotel Company, Mo.App., 364 S.W.2d 71, 74; Daggs v. Patsos, Mo.App., 260 S.W.2d 794, 798-799; Stafford v. Fred Wolferman, Inc., Mo., 307 S.W.2d 468. But if the italicized language is not a sufficient hypothesis the fact that the plaintiffs made a submissible case upon the theory that the hazard was hidden (the only theory upon which they could recover) of necessity implies no knowledge of the danger on the part of the fireman. A finding that Bartels “was exercising ordinary care for his own safety under the circumstances” was required. And finally, in view of the essential, disputable issues and the circumstances of this record, it would appear unreasonable to say that instruction one was prejudicially erroneous in not more explicitly requiring a finding that Bartels had no knowledge of the two-inch vents, their inadequacy and their danger. Coplen v. Zimmerman, Mo., 271 S.W.2d 513, 517; Edwards v. E. B. Murray & Company, Mo.App., 305 S.W.2d 702, 706-707 (an opinion by Judge Cave who also wrote the Schwartz case); Swanson v. Godwin, supra.

Therefore, in view of these indicated reasons, the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.


source: Caselaw Access Project

author: CULVER, Justice.

license: Public Domain

text:
    J. C. WOODARD, Individually and d/b/a Woodard and Lee Builders and d/b/a Woodard and Lee Homes and d/b/a Meridian Homes, and/or Trustee for Meridian Homes, Petitioner, v. SOUTHWEST STATES, INC., a/k/a KROD TV and KROD Radio Station, Respondent.
    No. A-10246.
    Supreme Court of Texas.
    Dec. 2, 1964.
    Morgan & Boling, El Paso, for petitioner.
    Scott, Hulse, Marshall & Feuille, Charles R. Jones with above firm, El Paso, for respondent.
   CULVER, Justice.

Southwest States, Inc. brought this suit against J. C. Woodard, a home builder, described as doing business under certain assumed names and as trustee for Meridian Homes and also against James Svalberg, who conducted an advertising agency under the name of Ad Vent, Unlimited. The suit was predicated on a contract claimed to have been made with Southwest States, Inc. by Svalberg as agent for Woodard and in the alternative against Woodard on quantum meruit. On the other hand Woodard answered that a contract was made between Meridian Homes, a joint venture, composed of three corporations, Edgemere Development Company, Woodard Construction Company, and First Gold Medal Homes, and Svalberg, whereby Sval-berg would for the sum of $11,500.00, conduct the promotional advertising for Meridian Homes and that Svalberg would be solely liable and responsible to the advertising media and suppliers that he might deal with for their charges; that Svalberg was not the agent for Woodard either individually or as trustee.

The jury found that Svalberg was an independent contractor at the time he placed the radio and television advertising with Southwest States, Inc., and that Woodard did not lead Southwest States, Inc., its agents and employees, to believe that Sval-berg was his agent. The trial court entered judgment for Southwest States against Svalberg, but denied it any recovery against Woodard, individually or as trustee. Sval-berg did not appeal.

The Court of Civil Appeals in reversing the judgment in favor of Woodard and remanding the cause for another trial, held that the trial court erred in failing to submit to the jury the elements of quantum meruit because Southwest States furnished the advertising with Woodard’s knowledge and consent; Woodard received the benefits accruing therefrom and there remained an unpaid balance due for such services.

In this case all parties are agreed that a contract was made between Southwest States and Svalberg, the dispute being whether Svalberg was an independent contractor or an agent for the defendant in making the contract. Southwest States pleaded that Svalberg contracted and expressly agreed to pay to it the prices charged for the advertising time and services as set out in the attached exhibits, which charges were reasonable. In that situation the plea of quantum meruit is not available.

Recovery on an express contract and on quantum meruit are inconsistent. Where there exists a valid express contract covering the subject matter, there can be no implied contract. Gammage v. Alexander, 14 Tex. 414; Dallas Electric Supply Co., Inc. v. Branum Co., 185 S.W.2d 423, Tex.Civ.App., affirmed 143 Tex. 366, 185 S.W.2d 427; Yingling v. Klotz, 193 S.W.2d 742, Tex.Civ.App., wr. ref. n. r. e.; Walker v. Dickey, 44 Tex.Civ.App. 110, 98 S.W. 658, er. ref.; Fordtran v. Stowers, 52 Tex.Civ.App. 226, 113 S.W. 631, 1908.

In the second place there can be no recovery by Southwest States against Woodard because its contract was made with Svalberg, an independent contractor, and can only look to Svalberg to carry out the terms of his contract. The contractee is not liable for the acts of an independent contractor. Siratt v. City of River Oaks, 305 S.W.2d 207, Tex.Civ.App., wr. ref.

The Court of Civil Appeals in holding that the facts in this case would compel submission to the jury of quantum meruit issues relies upon the proposition that “quantum meruit is founded upon the rule that it is inequitable for a party to refuse to pay for the benefits he received or for work performed for him with his knowledge and consent by someone who is authorized to expect remuneration therefor,” citing Parks v. Kelley, 147 S.W.2d 821, Tex.Civ.App., 1941, no writ history. As a general rule the proposition is good law.

It just does not apply to the facts in this case. In the Parks case there was an implied contract on the part of the employer to pay the reasonable value of the services that had been rendered to him by the employee as a pharmacist in the defendant’s drug store. In the case before us there was no contract between Southwest States, Inc., and J. C. Woodard, either express or implied, Svalberg, as the jury found, was indebted to Southwest States on the contract made between those two parties. If in fact Woodard owed Svalberg any balance, Southwest States could reach those funds by writ of garnishment.

Southwest States objected to the following issue on the ground that the issue was framed in the alternative which precluded Southwest States from a possible jury finding that the advertising was placed both for the account of Woodard individually and as trustee for Meridian Homes.

“Do you find from a preponderance of the evidence, that the defendant, James E. Svalberg, placed the radio and television advertising involved herein on account of:
“1(a) J. C. Woodard, doing business as Woodard and Lee Homes?
“1(b) J. C. Woodard, Trustee for Meridian Homes, a joint venture of three corporations, Edgemere Development Company, Woodard Construction Company, the First Gold Medal Homes?
“Answer: ‘1(a)’ or ‘1(b)’
“We answer: 1A.”

Even if erroneous we believe the error was not so material as to justify a reversal. As pointed out, the jury found that Sval-berg was an independent contractor “at the time he placed the radio and television advertising involved herewith with plaintiff, Southwest States, Inc.” The jury also found that Svalberg, in placing the advertising, was not acting as agent for J. C. Woodard, as trustee for Meridian Homes. Woodard, in his testimony, admitted that he made the contract with Svalberg for and on behalf of Meridian Homes. So that if the jury had found that Svalberg was acting as agent for J. C. Woodard as trustee the admission by Woodard would have justified the trial court in disregarding the answer to the foregoing issue. So far as we observe from the statement of facts Woodard was trustee for Meridian Homes only in that he was authorized as such to make deeds of conveyances.

For the foregoing reasons we reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

      . 379 S.W.2d 120.


author: WALKER, Justice.

text:
    Rufus LINDLEY et al., Petitioners, v. J. G. LINDLEY et al., Respondents.
    No. A-9844.
    Supreme Court of Texas.
    Oct. 7, 1964.
    Rehearing Denied Nov. 11, 1964.

      Joe N. Chapman, Sulphur Springs, Bird Old, Jr., Raymond R. Johnson, Sulphur Springs, for petitioners.
    J. G. Lindley, Dallas, Howard S. Smith, Sulphur Springs, Woodrow H. Edwards, Mt. Vernon, for respondents.
   WALKER, Justice.

This will contest was tried before a jury on appeal to the district court. In response to the single special issue submitted, the jury found that the testatrix had testamentary capacity. Judgment was rendered on the verdict admitting the will to probate, and the Court of Civil Appeals affirmed. 370 S.W.2d 740.

The will in question is a holographic instrument executed by the testatrix, Mrs. Sallie A. Lindley, on August 10, 19S9. She died on June 2, 1960, at the age of 94, and was a widow at the time of her death. Three children had been born to her: Rufus Lindley, Mary Harper, and Tommy Lindley. Tommy died in the State Hospital at Terrell on July 23, 1959. He was survived by his wife, Dixie, and by three children: J. G. Lindley, Evelyn Redmond, and Juanita Irons. Rufus Lindley is married but has no children. Mary Harper is a widow and has three children: Oleta Smith, D. C. Hyder and Prentiss L. Hyder.

In the instrument offered for probate, the testatrix directed that her two surviving children, Rufus Lindley and Mary Harper, and one of her grandchildren, Prentiss L. Hyder, be paid $1.00 each. The residue of her estate was devised and bequeathed to the remaining five grandchildren in equal shares. J. G. Lindley and Juanita Irons, who were appointed executors without bond, filed the will for probate, and their application was contested by Rufus and Mary. The contestants alleged inter alia that their mother lacked testamentary capacity and that her execution of the will was procured by undue influence on the part of J. G. Lind-ley, Evelyn Redmond and Juanita Irons.

The charge to the jury included a definition of “testamentary capacity” which is quoted in the margin. Contestants requested the submission of an insane delusion instruction, also set out in a footnote, and their first point of error asserts that the court erred in refusing to submit the same.

A person who is entirely capable of attending to his business affairs may nevertheless have his mind so warped and deranged by some false and unfounded belief that he is incapable of formulating a rational plan of testamentary disposition. Examples of such false beliefs are cases where the “testator believed, in spite of the fact that all the evidence was to the contrary, that his son had been to the planet Mars and had conspired against the United States and should therefore be disinherited; or that his wife was plotting to kill him; or that his daughter had murdered his father; or that he was hated by his brothers and sisters who were bent on persecuting him.” Page on Wills, Bowe-Parker Revision, § 12.29. When the testator’s false belief amounts, in law, to an insane delusion and the terms of his will are influenced thereby, testamentary capacity is lacking even though he might know the nature and extent of his property, the effect of his will, and the natural objects of his bounty, and be able to handle complex business matters. A jury of laymen might well conclude that such a person did have testamentary capacity, however, if their only guide were the ordinary definition of that term. An additional instruction on insane delusions is required, therefore, where the issue is fairly raised by the evidence. See Prather v. McClelland, 76 Tex. 574, 13 S.W. 543; Rodgers v. Fleming, Com.App., 3 S.W.2d 77 (holding approved).

The courts have developed their own concept of what constitutes an insane delusion. It has been defined in Texas as “the belief of a state of supposed facts that do not exist, and which no rational person would believe.” See Knight v. Edwards, 153 Tex. 170, 264 S.W.2d 692. Other courts have attempted to state the definition in terms of the proof necessary to establish an insane delusion in the case under consideration, but none of these definitions is so complete and accurate that it can be applied indiscriminately in every situation that may arise. According to one writer “all that can safely be said is that an insane delusion is a misconception of fact, or an abnormal mental attitude, due to some organic defect in the brain or some functional disorder of the mind. That it is so due may be inferred from its purport, if too fantastic to be the product of a normal mind; or from its fixed and persistent nature, if conceived without foundation in reason; or from its progressive immoderateness if originally induced by some rational cause; or from its origin in a previous state of irrationality. Formulas of proof cannot be followed literally. Each case must rest on its own circumstances, the question of law for the trial court being whether the contestant has introduced substantial evidence, not only of a mental error affecting the terms of the will, but that the persistence of this mental error was caused by defective cerebration.” See Annotation, 175 A.L.R. 882, 889.

We agree with the Court of Civil Appeals that the jury’s finding is amply supported by the evidence, but that does not solve our problem. Contestants were entitled to have an instruction on insane delusions given if there is any evidence of probative value which, with the inferences that may reasonably be drawn therefrom, will support a finding that Mrs. Lindley was laboring under such a delusion which affected the terms of her will. In determining that question, moreover, we must consider only the evidence which, when viewed in its most favorable light, tends to support such a finding, and must disregard all evidence that would lead to a contrary conclusion.

The evidence discloses that Mrs. Lindley’s son, Tommy, suffered a complete mental breakdown in March, 1959. He was placed in the Hopkins County Memorial Hospital at Sulphur Spring's, where it was necessary to tie him to his bed. Two days later he was transferred to Timberlawn Sanitarium in Dallas. After six weeks at Timberlawn, lie was committed to the State Hospital at Terrell, and died there on July 23, 1959. Mrs. Lindley’s will was written 18 days later.

Mrs. Lindley was 93 years of age and in poor health herself when Tommy became ill. The medical testimony shows that she was senile and suffering from high blood pressure and arteriosclerosis at the time. Tommy’s illness and death caused severe distress and sorrow to his mother. She saw him tied to the bed in the Hopkins County Memorial Hospital, and according to one witness “just went to pieces.” She also visited him frequently while he was at Timberlawn and in the State Hospital at Terrell, but evidently was never able to understand the nature of his illness. She told her banker, W. W. Jones, that her boy had been sent to Terrell, and that she was going to bring him home and take care of him herself. When Mr. Jones attempted to ■explain Tommy’s condition and assured her that Terrell was the place for him, she ■“paid no attention to it whatever.”

The evidence also shows that Mrs. Lind-ley entertained a number of false beliefs or delusions after Tommy’s death. She told several witnesses, including three doctors, that she did not want to go to the Hopkins County Memorial Hospital because the hospital had killed her son. When she and some of her grandchildren returned to Sulphur Springs for Tommy’s funeral, they spent the night at a local motel. The manager of the motel asked her how Rufus was getting along. She replied that “she didn’t known and didn’t care because * * he and Mary killed my son.” A short time later she told another witness that “if it hadn’t been for Rufus and Dixie, I would have my poor little child with me today,” that “Rufus and Dixie sent Tommy to Terrell.” She stated to a neighbor that the Hopkins County Memorial Hospital had mistreated Tommy, and that both she and Tommy had been badly mistreated by Rufus and Mary, but the time of this conversation is not clear from the record. There is also evidence indicating her belief that she had talked with her deceased husband and son, and had seen Tommy when she went to his former home.

Several lay witnesses noticed a marked change in Mrs. Lindley after her son died. She failed to recognize old friends on the street and was unable to carry on a normal conversation. The witness Jones, whom Mrs. Lindley consulted frequently on business matters, testified that in his opinion she was mentally incompetent after Tommy’s death. A doctor who saw her in June, July and August, 1959, also expressed the opinion that she was of unsound mind at the time of one visit when she discussed Tommy’s death with him. Two doctors in Greenville who examined Mrs. Lindley on January 19, 1960, were of the opinion that she was of unsound mind at that time, and one of them testified that her condition would have been about the same on August 10, 1959. She suffered a stroke in March, 1960, and was sent to the hospital where she died about two months later.

The evidence shows Mary had lived with Mrs. Lindley and cared for her for some time prior to her death, doing the washing, cooking, house cleaning and nursing, and that Rufus also helped his mother in various ways. Mrs. Lindley had made three earlier wills, all of which were formal instruments prepared by an attorney. None of the children were left out of the first two wills, and Mary was named co-executor in at least one of them. The third will divided all property between the three children. Nothing was given to any of the grandchildren, but J. G. Lindley was appointed independent executor without bond.

Although the facts proven are not as strong, the present case is somewhat similar to Rodgers v. Fleming, supra, which was a contest of the will of W. J. McDonald. There the testator’s beloved brother shot himself on April 22, 1925, and the will offered for probate was executed about two and one half weeks later. The evidence indicated that the testator was generally able to attend to his business, although he was in bad health, forgetful, occasionally made mistakes, and had misgivings about his business ability. After the death of his brother, he purchased a pistol for the purpose of protecting himself against a nephew, Dr. Will McDonald, and said the nephew was going to kill him for his property. He also said that the wife of another nephew was an unscrupulous and designing woman and had stolen some of his table cloths and similar articles. Mrs. H. D. McDonald, the widow of his deceased brother, had prepared his meals for some time, and after her husband’s death he asked her not to move away from Paris as she was planning to do. Later he stated that she was the meanest woman in the world. He also told the owner of a barber shop that astronomers would soon be able to see the gates of Heaven. A number of other circumstances were established which tended to show that the testator was not in full possession of his mental faculties, and in response to a lengthy hypothetical question an expert witness expressed the opinion that the testator was of unsound mind on the day his will was executed. The will made cash bequests to a nephew, two nieces and their children, left nothing to Dr. Will McDonald, and gave the bulk of a very substantial estate to the Regents of the University of Texas for the purpose of constructing and equipping an astronomical observatory. The Commission of Appeals held that the trial court had erred in refusing to give the special charge on insane delusions requested by the contestants, and stated that its conclusion was based not only upon the facts established by the evidence but also upon the opinion of the expert witness that the testator was of unsound mind.

The proponents call our attention to the considerable body of evidence which would support the conclusion that Mrs. Lindley did have testamentary capacity and may have had good reasons for disposing of her property as she did. They rely upon Knight v. Edwards, supra, and Navarro v. Rodriguez,Tex.Civ.App., 235 S.W.2d 665 (no writ). Neither of these cases is applicable here. We held in Knight that the evidence failed to raise the issue of insane delusions because there was a reasonable and substantial factual basis for the belief held by the testatrix. And as pointed out by the Court of Civil Appeals in Navarro, the record there contained “nothing more than the suggestion of a misunderstanding or a mistake of fact, or an illogical conclusion.”

It is not clear here whether there was any basis for Mrs. Lindley’s belief that Rufus and possibly Mary played some part in having Tommy sent to the hospital.There is evidence which indicates that she believed someone had told her this. On the other hand, Tommy’s wife testified that she and J. G. Lindley signed the necessary papers, and that neither Rufus nor Mary had anything to do with her husband’s commitment to the State Hospital at Terrell. Entirely aside from that problem, however, there appears to be no basis whatsoever for Mrs. Lindley’s belief that Tommy was killed by the hospital or that his life would have been spared if he had not been sent there. Under all the evidence, the jury could reasonably conclude that she was firmly convinced that one or both of her children were responsible for Tommy's death, that such belief would not have been entertained by a rational person under the circumstances but was the result of mental infirmity, and that the disposition of her estate was affected thereby. Since there is no contention that the instruction requested by contestants is not in proper form, we hold that the trial court erred in refusing to give the same. This requires that the cause be remanded for a new trial.

An expression of our views on a number of other questions brought forward by contestants will be of assistance to the parties and the court when the case is retried. In support of their contention that an issue on undue influence should also have been submitted, contestants call our attention to evidence of declarations by Mrs. Lindley, in which she recounted statements made to her by some of the grandchildren. These declarations on the part of Mrs. Lindley may be received to show her mental condition, but they constitute hearsay and have no probative value when offered to prove the truth of the facts she asserted. See Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138; Buchanan v. Davis, Com. App., 12 S.W.2d 978; Wigmore on Evidence, 3rd ed. 1940, § 1738. Aside from the testimony just mentioned, the only circumstances tending to support contestants’ position are the testator’s mental and physical condition, many opportunities for the grandchildren to influence her, and the terms of the will itself. Mrs. Lindley’s plan of testamentary disposition is not necessarily an unnatural one, and in our opinion there is no evidence, direct or circumstantial, from which it can reasonably be inferred that her execution of the will was the result of undue influence. See Rothermel v. Duncan, Tex. Sup., 369 S.W.2d 917.

The jury was instructed that ■“every person who has attained the age of nineteen years or who is or has been lawfully married, being of testamentary capacity, shall have the right and power to make his last will and testament under the rules and limitations prescribed by law.” This instruction had no place in the charge. The information it contained did not assist the jurors in passing on the issue submitted to them, and it served merely to confirm what they probably already knew about the legal effect of their answer. We also agree with contestants that the words “and their claims upon her” should have been added to the second sentence of the definition of testamentary capacity. See Morris v. Morris, Com.App., 279 S.W. 806 (holding approved); Breeding v. Naler, Tex.Civ.App., 120 S.W.2d 888 (writ dism.).

Doctors Mehmert and Phillips examined Mrs. Lindley for the first time on January 19, 1960, but this was not so remote as to preclude these witnesses from expressing their opinion, based on reasonable medical probability, regarding her condition when the will was executed five months earlier. The trial court properly refused, however, to permit Dr. Phillips to testify that Mrs. Lindley’s belief that the Hopkins County Memorial Hospital had killed her son was an insane delusion. As suggested by our opinion in Knight v. Edwards, supra, a doctor’s concept of what constitutes an insane delusion may be quite different from the legal concept. No witness, whether expert or non-expert, is permitted, over proper objection, to state his opinion as to the legal capacity of a person to make a will, because the determination of the existence of testamentary capacity involves the application of a legal definition to the facts. See Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621, 36 L.R.A. 64; McCormick & Ray, Texas Law of Evidence, 2nd ed. 1956, § 1421. For the same reason even an expert medical witness is not qualified to say, in so many words, that a particular belief held by the testator constituted an insane delusion.

Contestants also contend that the trial court erred in refusing to allow them to impeach Mrs. Dixie Martin, whom they called as a witness, but this question probably will not arise at the next trial.

The judgments of the courts below are reversed and the cause is remanded to the district court for a new trial.

      . “You are further instructed that to make a valid will, the person making the will must have testamentary capacity at the time of the execution of the will. By the term ‘testamentary capacity’, as used in this charge, is meant that the person at the time of the execution of the will has sufficient mental ability to understand the business in which she is engaged, and the effect of her act in making the will, and the general nature and extent of her property. She must also be able to know her next of kin and the natural objects of her bounty. She must have memory sufficient to collect in her mind the elements of the business to be transacted and to hold them long enough to perceive at least their obvious relation to each other, and to be able to form a reasonable judgment as to them.”

      . “To make a valid will, the person making the will must have testámentary capacity, and must not, at the time of the execution of the will, be laboring under an insane delusion, which influenced the person executing such will to dispose of her property in a way which she would not have disposed of it but for the insane delusion.
      “You are charged in connection with the term ‘testamentary capacity’ that a person, to have testamentary capacity, as that term is used in this charge, is meant that such person at the time of the execution of the will, must have had sufficient mental ability to understand the business in which she was engaged, the effect of her act in making the will, and the nature and extent of her property; she must be able to know her next of kin and the natural objects of her bounty and their claims upon her; she must have memory sufficient to collect in her mind the elements of the business about to be transacted and to hold them long enough to perceive at least their obvious relation to each other and to be able to form a reasonable judgment as to them.
      “You are further charged that by ‘insane delusion’ is meant the belief of a state of supposed facts which no rational person would believe.”

      . Tlie instruction requested by contestants has been approved by at least one of our Courts of Civil Appeals. Peareson v. McNabb, Tex.Civ.App., 190 S.W.2d 402 (writ ref. w.m.). See also Gulf Oil Corporation v. Walker, Tex.Civ.App., 288 S.W.2d 173 (no writ). It undoubtedly informed tlie jury of the legal effect of their answer, but that is not a sound reason for refusing to submit the same in view of the other instructions given by the trial court. While the question is not briefed or argued here, we are inclined to the view that contestants would have been entitled, upon proper request, to an even more favorable instruction. If the one sought by them had been given and the jurors concluded that the testatrix was laboring under an insane delusion which affected her will, they could still have answered the issue on testamentary capacity in the affirmative unless they realized that the mistaken belief of the testatrix prevented her from knowing the children’s claims upon her. This danger as well as the defect noted above can be obviated by specifically relating an insane delusion to testamentary capacity. See Rodgers v. Fleming, Com.App., 3 S.W.2d 77. We do not attempt to express an opinion as to the exact form in which the instruction might be given.


author: STEAKLEY, Justice.

text:
    AMERICAN TITLE INSURANCE COMPANY et al., Petitioners, v. L. Tonnett BYRD et al., Respondents.
    No. A-10148.
    Supreme Court of Texas.
    Dec. 2, 1964.
    James R. Sloan & Patrick W. Thompson, L. Hamilton Lowe, Austin, for petitioner.
    Kuykendall & Kuykendall, Austin, for respondent.
   STEAKLEY, Justice.

Respondents, L. Tonnett Byrd and W. M. Day, plaintiffs below, entered into an escrow agreement to purchase what is referred to as the Bob Garrison ranch. It was agreed that they were to be furnished an Owner’s Title Policy at the expense of the sellers, Robert D. Garrison, Jr., and wife. Petitioner, American Title Insurance Company of Miami, Florida (the other Petitioner is its Texas agent), issued its “Owner’s Title Policy Commitment” to Respondents, the relevant provisions of which are copied in the footnote. The commitment omitted reference to two undivided mineral interests, a one-eighth and a three-sixteenths, which were outstanding in third parties. These mineral interests were disclosed in the previous deeds referred to in the property-description employed in the commitment and were listed as exceptions in the title policy subsequently issued in favor of Respondents. Respondents sued Petitioners for damages under Article 4004, Revised Civil Statutes of Texas, 192S, based on the omission of the mineral interests from the title policy commitment.

Respondents state in their reply to the application for writ of error that “This suit was filed, tried and judgment was rendered as provided for under Article 4004 * * * Respondents had the right to sue for rescission or for damages * * *. [Respondents did not seek rescission but exercised their right of election by suing for damages measured by Article 4004.” The Court of Civil Appeals so treated the case.

This appeal thus presents for decision the narrow question of whether a title insurance company is subject to an action for fraud within the provisions of Article 4004 under allegations that false representations have been made, upon which the purchaser relies, when particular defects in title are omitted from an owner’s title policy commitment furnished by the title insurance company.

The trial court and the Court of Civil Appeals held that Respondents’ suit is maintainable under Article 4004. We hold that this statute has no application to a title insurance transaction and that Respondents’ suit is within neither the letter nor the spirit of the statute. Article 4004, enacted in 1919, reads as follows:

“Actionable fraud in this State with regard to transactions in real estate or in stock in corporations or joint stock companies shall consist of either a false representation of a past or existing material fact, or false promise to do some act in the future which is made as a material inducement to another party to enter into a contract and but for which promise said party would not have entered into said contract. Whenever a promise thus made has not been complied with by the party making it within a reasonable time, it shall be presumed that it was falsely and fraudulently made, and the burden shall be on the party making it to show that it was made in good faith but was prevented from complying therewith by the act of God, the public enemy or by some equitable reason. All persons guilty of such fraud shall be liable to the person defrauded for all actual damages suffered, the rule of damages being the difference between the value of the property as represented or as it would have been worth had the promise been fulfilled, and the actual value of the property in the condition it is delivered at the time of the contract. All persons making the false representations or promises and all persons deriving the benefit of said fraud, shall be jointly and severally liable in actual damages, and in addition thereto, all persons wilfully making such false representations or promises or knowingly taking the advantage of said fraud shall be liable in exemplary damages to' the persons defrauded in such amount as shall be assessed by the jury, not to exceed double the amount of the actual damages suffered.” (Emphasis added.)

We point out that any right of •action which Respondents may have ex «contractu, or ex delicto apart from Article 4004, is not before us. As to “the actual loss” measure of damages cf. George v. Hesse, 100 Tex. 44, 93 S.W. 107, 8 L.R.A.,N.S., 804. Respondents sought to bring their suit under Article 4004 so as to recover the “loss of bargain” measure of damages provided by the statute, i.e., “the rule of damages being the difference between the value of the property as represented or as it would have been worth had the promise been fulfilled, and the actual value of the property in the condition it is delivered at the time of the contract.”

Respondents cannot invoke Article 4004 and claim its advantages unless the transaction between them and Petitioner was a “transaction [s] in real estate or in stock in corporations or joint stock companies” to which, and only to which, Article 4004 applies. The transaction between Petitioner and Respondents was not a transaction in real estate or in stock; it was a transaction in title insurance which was incidental to the transaction in real estate between Respondents, as purchasers, and Robert D. Garrison, Jr., and wife, as sellers. Cf. Thompson v. American Power & Light Co., 5 Cir., 192 F.2d 651. The legislative intent to limit the scope of Article 4004 is clear by its terms, and is further evidenced by the recitation in the emergency clause of the Act of “The fact that there are now in this State a number of fraudulent land schemes, * * As relevant here, the statute changes the measure of damages with respect only to the real estate transaction and there is no basis in its provisions for an extension of the statute to include an ancillary title insurance transaction which itself is regulated pursuant to other legislative enactments. In Loma Vista Development Co. v. Johnson, 142 Tex. 686, 180 S.W.2d 922, this Court, in another context, spoke of the “drastic penalty prescribed by Art. 4004.” In Westcliff Company v. Wall, 153 Tex. 271, 267 S.W.2d 544, this Court recognized that Article 4004 is penal in nature and must be strictly construed.

The judgments of the Court of Civil Appeals and of the trial court are reversed, but in the interest of justice the case is ordered remanded to the trial court for another trial. Rule 505, Texas Rules of Civil Procedure; see Hicks v. Matthews, 153 Tex. 177, 266 S.W.2d 846, 850; City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218, 223, 73 A.L.R. 2d 640; Popperman v. Rest Haven Cemetery, Inc., 162 Tex. 255, 345 S.W.2d 715, 718.

      . “February 1, 1962
      “TO: L. Tonnett Byrd and W. M. Day
      In re:_
      “Gentlemen:
      “In connection with an order placed with us for an Owner’s Title Policy, we give you this preliminary report and Owner’s Title Policy Commitment on the -title to the following described property, to-wit:
      “Being 601.1 acres of land out of the Enoch Moore, W. H. Haggard, Theodocia 'Carolina, Thos. B. Lee and J. Massey Surveys in Hays County, Texas, and being the same land conveyed to Ira A. Combs and wife, Bessie Combs, by deed of conveyance from W. E. Tombaugh and Sam Norwood, Individually and as Independent Executors of the Estate of Clementine Tombaugh, deceased, dated September 12, 1942, and thereafter conveyed by Ira A. Combs and wife, Bessie -Combs, by deed of conveyance [to Robert D. Garrison, Jr. and wife, Bessie Combs, by deed of conveyance- — sic] to Robert D. -Garrison, Jr., and wife, Mary Burton 'Garrison, dated November 15, 1960 and recorded in Volume 184, Page 256-9, of the Deed Records of Hays County, Texas.
      “We have approved the title to said Real Estate which is vested in Robert D. Garrison and wife, Mary Burton Garrison for the issuance of said Owner’s Title Policy, subject to the following matters hereinafter set forth.
      [Ten exceptions not here relevant are listed.]
      “When the title to the said property becomes vested in the purchaser to our satisfaction (if the same is not herein shown to be already vested in him), free and clear, in our opinion, of all the defects, liens and incumbrances herein-before set out, and the Deed or other instruments have been properly executed, delivered and approved by us, and filed for record, then, provided nothing else shall have arisen subsequent to the date hereinbefore stated under Number 2 hereof affecting the title to said property, we hereby commit ourselves to issue to you an Owner’s Title Insurance Policy on said property on the standard form prescribed by the Board of Insurance Commissioners then in use.”

      . American Title Insurance Co. of Miami, Fla. v. Byrd, 376 S.W.2d 785.

      . The statute has been held applicable only when a conveyance of the property has been made, and not where there is merely a contract to convey. Its provisions with respect to the presumption of fraud and the burden of proof have been held violative of the due process clause of the Constitution. Rawdon v. Garvie, 227 S.W.2d 261 (C.C.A.1950, no writ hist.). The rule of damages stated in the statute has been judicially criticized as “untenable and without basis in reason.” Seideman v. Callahan, 34 S.W.2d 406 (C.C.A.1930, writ dism.); Cf. Stuart v. Birdwell, 264 S.W.2d 452 (C.C.A.1954, no writ hist.), citing Morriss-Buick Co. v. Huss, 131 Tex. 102, 113 S.W.2d 839; Bennett & Post v. Henderson, 280 S.W. 622 (C.C.A.1925, no writ hist.).

      . Ch. 9, Art. 9.01 et seq., Insurance Code, Yol. 14, Vernon’s Annotated Civil Statutes.


author: STEAKLEY, Justice. SMITH, Justice

text:
    Daniel William SCOTT, Jr., M.D., Petitioner, v. TEXAS STATE BOARD OF MEDICAL EXAMINERS, Respondent.
    No. A-10105.
    Supreme Court of Texas.
    Nov. 11, 1964.
    Rehearing Denied Dec. 31, 1964.
    Davis & Gray, Houston, for petitioner.
    Waggoner Carr, Atty. Gen., Austin, Malcolm Quick and Wm. Morse, Jr., Asst. Attys. Gen., for respondent.
   STEAKLEY, Justice.

Acting under Articles 4505 and 4506, Vernon’s Ann.Civ.St, the Texas State Board of Medical Examiners revoked and cancelled the license to practice medicine of Petitioner, Daniel William Scott, Jr., M.D. The order of the Board was as follows:

“On this the 18th day of August, 1962, came on to he heard before the Texas State Board of Medical Examiners, duly in session, a certain complaint filed with the Board on the 26th day of July, 1962, in which it was complained that Daniel William Scott, Jr., M.D., had violated the provisions of SubDivisions (4), (5), and (12) of Article 4505, Revised Civil Statutes of Texas, 1925, as amended, such violation being grounds for the cancellation, revocation or suspension of the license to practice medicine in the State of Texas, by Daniel William Scott, Jr., M.D., and the said Daniel William Scott, Jr., M.D., of Houston, Harris County, Texas, having appeared in person and through his Counsel, Mr. William Dor-man, and the said charges and complaint having been read, and the evidence on said complaint and charges having been introduced and heard, and after consideration of the charges and evidence, the Board is of the opinion that the charges contained in the complaint are true in so far as said charges relate to prescribing and administering amphetamine, amphetamine derivatives and compounds, barbiturates, barbiturate derivatives and compounds, and Class A narcotic drugs to known addicts, and also in so far as said complaint relates to prescribing and administering amphetamine, amphetamine derivatives, and compounds, barbiturates, barbiturate derivatives and compounds, and Class A narcotic drugs to patients of Daniel William Scott, Jr., M.D., under conditions which said Daniel William Scott, Jr., M.D., knew or should have known there was no therapeutic need for such patients, therefore “IT IS ACCORDINGLY ORDERED, ADJUDGED AND DECREED, that the license to practice medicine within the State of Texas, heretofore held by Daniel William Scott, Jr., M.D., be revoked and cancelled.
“Rendered and entered this 18th day of August, 1962.” (Emphasis added)

The Board recognizes that the findings in the above order do not support a revocation under Subdivisions (5) and (12) of Article 4505. Its position is that the findings that Scott prescribed and administered narcotic drugs to known addicts and, additionally, that Scott prescribed and administered narcotic drugs to his patients when there was no medical need therefor, support the act of revocation of Scott’s license under Subdivision (4) of Article 4505 which defines a cause for revocation as “(4) Grossly unprofessional or dishonorable conduct, or [sic — should read of] a character which in the opinion of the Board is likely to deceive or defraud the public.”

Scott appealed the order of cancellation to the district court. The court ruled that the case should be tried pursuant to the appeal provisions of Article 4506 which require that the proceeding on appeal shall be in the nature of a trial de novo as such term is commonly used and intended in an appeal from the justice court to the county court. Under the ruling of the trial court the burden of sustaining its order was placed on the Board. Trial was to a jury. The Board offered evidence to establish that between July 1, 1960, and March 3, 1963, approximately one hundred and five prescriptions for various drugs identified as amphetamine, amphetamine derivatives, amphetamine compounds, barbiturates, barbiturate derivatives, barbiturate compounds, or Class A narcotic drugs were issued by Scott to one Douglas Ait-ken; that between August 28, 1961, and March 22, 1962, nine similar prescriptions were issued to one Eugene Ansley; and that between November 30, 1961, and August 10, 1962, twenty-eight similar prescriptions were issued to one Paul Ross. Evidence was also offered to establish that each of these individuals was a known drug addict; and, further, that drug prescriptions on a lesser number of occasions were issued by Scott to other addicts. There was evidence that the recipients of the prescriptions were of disreputable, and in some instances of criminal, character. No evidence was offered by the Board to establish, either by the testimony of its members or other members of the medical profession, that recipients of the prescriptions could not have had a medical need therefor and that the prescriptions did not constitute proper medical treatment.

The jury was instructed “that a duly licensed medical doctor holding a valid federal narcotic license is legally and medically authorized to prescribe narcotic drugs to his patients, whether or not such patients are known to be addicted to the use of such drugs, if, in the opinion of such medical doctor the giving of such drugs is of therapeutic value in the treatment of such patients.” This instruction comports with the provisions of the Penal Code.

The jury found that Scott prescribed the drugs to persons known to him to be addicted to one or more of them; that Scott in the exercise of ordinary care should have known that the persons for whom he prescribed the drugs were addicted to one or more of them; and that the conduct represented by these respective findings constituted grossly unprofessional and dishonorable conduct of a character likely to deceive or defraud the public.

The trial court, however, granted Scott’s motion for judgment non obstante veredicto and entered judgment denying the Board the right to cancel his license. The Court of Civil Appeals reversed and remanded the cause for a new trial. It held unconstitutional the appeal provision of Article 4506 as violative of Article II, Section 1, of the Constitution of Texas, Vernon’s Ann. St. providing for the division of powers into-three departments of Executive, Legislative and Judicial. The remand for a new trial under the substantial evidence rule was stated by the Court of Civil Appeals to be in the interest of justice because the case had not been fully developed. Both Scott and the Board of Medical Examiners have filed Applications for Writ of Error. Each urges for different reasons that the remand of the case by the Court of Civil Appeals was in error, and each seeks a favorable judgment of rendition. We reverse the judgment of the Court of Civil Appeals and. affirm the judgment of the trial court.

It is the basic position of Scott that the requirement of Article 4506 for a full do novo trial is constitutional; that the Board failed to discharge its burden of establishing its case against him by competent evidence before the court, particularly in not offering medical and expert evidence to establish that the prescriptions issued by him were not issued in good faith and in response to-medical needs; that the findings of the jury will not support a revocation under Subdivision (4) of Article 4505; that the delegation to the Board in Subdivision (4) provides no standard, and is so vague, indefinite and uncertain as to render the Subdivision void for want of due process.

The basic position of the Board is that the Court of Civil Appeals correctly held the appeal provision of Article 4506 unconstitutional and that the case should have been tried under the substantial evidence rule; but that the Court of Civil Appeals, erred in failing to hold as a matter of law' that its order revoking Scott’s license has reasonable support in substantial evidence.

In the enactment of statutes governing the qualifications to practice medicine in Texas, the Legislature is exercising an expressly granted constitutional authority. Article XVI, Section 31, of the Constitution of Texas provides:

“The Legislature may pass laws prescribing the qualifications of practitioners of medicine in this State, and to punish persons for mal-practice, but no preference shall ever be given by law to any school of medicine.”

The present statutes stem from an Act of the 29th Legislature in 1905 prohibiting malpractice and frauds in the practice of medicine and providing for revocation by the District Court of the license to practice medicine; and from the Medical Practice Act of 1907.

Section 11 of the 1907 Act, which became Article 4505 of the 1925 codification, provided that the State Board of Medical Examiners may refuse to admit persons to its examinations or to issue a medical license for various causes, one of which was “other grossly unprofessional or dishonorable conduct of a character likely to deceive or defraud the public.”

In 1939 major revisions in the Medical Practice Act were enacted. As relevant here, present Subdivision (4) was made a part of Article 4505 and similar language was removed from Article 4507. For the first time there was included the phrase “which in the opinion of the Board,” so that the subdivision reads “[gjrossly unprofessional or dishonorable conduct [of], a character which in the opinion of the Board is likely to deceive or defraud the public.”

It is to be further noted that the right of revocation of a medical license (as distinguished from a refusal to issue a license initially) was by the 1939 amendments limited to the district courts. But in 1953 the Legislature repealed Article 4507 and Article 4506 was amended to invest the Texas State Board of Medical Examiners with authority to cancel, revoke or suspend the license of a practitioner of medicine. The amendment of Article 4506 authorized such action “upon proof of the violation of the law in any respect with regard thereto, or for any cause for which the Board shall be authorized to refuse to admit persons to its examination, as provided in Article 4505 of the Revised Civil Statutes of Texas, 1925, as amended.” One of such causes is set forth in Subdivision (4) of Article 4505. It was further expressly provided in the 1953 amendment of Article 4506 that:

“Any person whose license to practice medicine has been cancelled, revoked or suspended by the Board may, within twenty (20) days after the making and entering of such order, take an appeal to any of the district courts in the county of his residence, but the decision of the Board shall not be enjoined or stayed except on application to such district court after notice to the Board. The proceeding on appeal shall be a trial de novo, as such term is commonly used and intended in an appeal from the justice court to the county court, and which appeal shall be taken in any District Court of the county in which the person whose certificate of registration or license is involved, resides. * * * ”

In the type of appeal thus required the court tries the issues anew. The burden of proof in sustaining the order is upon the administrative agency. Whether by the court or a jury, fact questions are resolved by a preponderance of the evidence. Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (1958); State by and through State Board of Morticians v. Cortez, 160 Tex. 532, 333 S.W.2d 839 (1960); Key Western Life Insurance Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839 (1961).

In the reported cases since the 1953 amendments, the State Board of Medical Examiners does not appear to have attacked the constitutionality of the appeal provisions of Article 4506. Texas State Board of Medical Examiners v. Koepsel, 159 Tex. 479, 322 S.W.2d 609 (1959), was an appeal from the act of the Board in cancelling the license of Dr. Koepsel to practice medicine; this Court spoke of fact questions to be submitted to the jury. It was stated in Rockett v. Texas State Board of Medical Examiners, 287 S.W.2d 190 (C.C.A.1956, writ ref. n. r. e.), that “There can be no question but that appellant was entitled to a trial ‘de novo’ in its broadest sense.” Cf. Watt v. Texas State Board of Medical Examiners, 303 S.W.2d 884 (C.C.A. 1957, writ ref.); Jacobi v. Texas State Board of Medical Examiners, 308 S.W.2d 261 (C.C.A.1957, writ ref. n. r. e.); Texas State Board of Medical Examiners v. McClellan, 307 S.W.2d 317 (C.C.A.1957, writ ref. n. r. e.).

It is seen from the legislative history of the Medical Practice Act that from the beginning the revocation of a medical license has been committed to the district courts as a judicial function. It has been traditionally so. It is still an original function of the district courts under present Article 4512 if a practitioner has been guilty of “any fraudulent and dishonorable conduct,” as well as for other causes specified in the statute. Revocation of a medical license was also an original function of the courts under Article 4507 until the 1953 amendments; since the amendments revocation has been an appeal function of the courts. See Goldman v. State, 277 S.W. 2d 217 (C.C.A.1954, wr. ref., n. r. e.). There is a difference, legislatively recognized through the years, between an exercise of the power to examine and issue a medical license, and an exercise of the power to revoke a medical license for cause. The Legislature has not required that an appeal from acts of the Board refusing to examine an applicant and to issue a medical license shall be de novo in the full sense; it has done so with respect to the appeal from an act of the Board revoking a medical license once granted. It is self-evident that the latter does not involve a question of public policy and the determination of legislative facts in the sense of the decisions of this Court in Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699, and Chemical Bank and Trust Co. v. Falkner, 369 S.W.2d 427 (Tex.Sup.1963). This points to what should be the controlling criteria of constitutionality. The validity of a full de novo appeal requirement turns on the nature of the act of the administrative agency contemplated by the statute to which the appeal requirement refers. An important consideration is whether the administrative action called for by the empowering legislative act involves public policy or is policy-making in effect, or whether the action concerns only the parties who are immediately affected. Here, the question of whether a particular medical practitioner has performed acts and engaged in conduct requiring revocation of his license under the standards prescribed by the Legislature involves the professional activities of only one person. In resolving this matter the Board was not engaged in promulgating rules of general application or in deciding questions of broad public policy. The fact questions inherent in the decision of the Board are typical of those which can on appeal be decided by a judge or a jury on evidence introduced in court.

We recognize that there are differences in the wording of the subdivisions of Article 4505. Subdivisions (3) and (4), for example, employ the phrase “in the opinion of the Board” which is absent from the other eleven subdivisions. It is argued that this phrase necessarily represents a delegation of legislative discretion which cannot be constitutionally exercised by the courts on appeal. But a revocation by the Board under each of the subdivisions of Article 4505 necessarily is addressed to the opinion of the Board; that is, the Board must be of the opinion that the licensee has been guilty of acts and conduct contrary to the legislative standards embraced within the particular subdivision under which the Board acts. The constitutionality of the de novo appeal requirement should not be made to turn on technical differences in the terminology or upon the “quantity” of delegation which may be said to be encompassed in the language used. It would be artificial indeed to say that the de novo appeal requirement is unconstitutional as to those subdivisions of Article 4505 which employ the phrase “in the opinion of the Board” but is constitutional as to the other subdivisions which do not do so.

Accordingly, we sustain the constitutionality of the de novo appeal requirement of Article 4506 as not being in contravention of the separation of powers provision of the Texas Constitution, Article II, Section 1. The trial court therefore correctly ruled that the appeal from the order of revocation of the Board in the case at bar was to be tried de novo in the full sense, with the burden upon the Board to establish its case for revocation of Scott’s license by competent evidence before the court.

The Board itself found Scott guilty of two types of acts. These were the prescribing of narcotic drugs for known addicts, and the prescribing of narcotic drugs for patients having no medical need therefor. Only the former was submitted to the jury which found that Scott did prescribe narcotic drugs to persons whom he knew, or should have known, were addicts. There is evidence to support these jury findings. But the question is whether the acts represented by these findings, standing alone, and in the absence of evidence that the persons receiving the drugs had no medical need therfor, constitute acts and conduct which are grossly unprofessional or dishonorable and of a character likely to deceive or defraud the public. We hold that they are not. The Penal Code expressly authorizes the good faith prescription of narcotic drugs by a licensed physician and the prohibitions of the Code with respect to the use of narcotic drugs do not apply to a person having a medical need therefor. «We recognize that the prescriptions which were shown to have been issued by Scott appear excessive to our lay minds; but there was no evidence offered by the Board from experts in the field of medicine, and in the use of narcotic drugs, to establish that Scott was not acting in good medical faith or that the prescriptions were not issued in response to medical needs. We would have no difficulty in holding that the acts and conduct of a medical practitioner in prescribing narcotic drugs in medical bad faith would support the revocation of his license under Subdivision (4) of Article 4505. But such is not shown in the record before us and the trial court properly entered judgment denying the Board the right to cancel Scott’s license.

In its original application for writ of error the Board asserted by point of error that the Court of Civil Appeals erred in remanding this case for a new trial. Its argument thereunder was that its order has reasonable support in substantial evidence. In its post-submission brief the Board argues further that the evidence supported the jury findings and that a judgment based thereon, and affirming the action of the Board, should have been entered by the trial court “in the interest of the public.” It is argued that the case for the Board is established by proof that Scott prescribed narcotics on the numerous occasions shown to persons already addicted, and by the failure of Scott to testify in justification of his conduct. Section 21 of Article 725b of the Penal Code is cited as support for the propositions that the Board did not have the burden of establishing the absence of a medical need for the prescriptions issued by Scott, and that the jury was entitled to consider Scott’s failure to justify the prescriptions. Section 21 of Article 725b provides that the burden shall be upon the defendant to establish any exception, excuse, proviso, or exemption in a proceeding brought for the enforcement of any provisions of Article 725b. But Article 725b is a penal statute and has no relation to the instant proceeding; moreover, this statute does not define as a criminal offense the prescription of narcotic drugs for an addict. And, as before noted, Section 7 of Article 725b expressly authorizes the prescription of narcotic drugs by a physician in good faith and in the course of his professional practice. Article 725c of the Penal Code, which defines the crimes of habitual use of narcotic drugs, addictions to the use of narcotic drugs, and being under the influence of narcotic drugs, further provides that such provisions shall not be applicable to a person who has a medical need for narcotic drugs.

We also mention that neither the Dental Statute, Article 4549, nor the Pharmacy Statute, Article 4542a, Section 12; nor the Optometry Statute, Article 4563, require that the proceeding on appeal from the acts of these respective Boards revoking and cancelling licenses shall be by trial de novo as in the appeal from the justice court to the county court. The cited cases holding that appeals therefrom are governed by the substantial evidence rule are therefore not in point to the Medical Practice Act, e. g., Texas State Board of Dental Examiners v. Fenlaw, 357 S.W.2d 185 (C.C.A.1962, no writ hist.); Garner v. Texas State Board of Pharmacy, 304 S.W.2d 530 (C.C.A.1957, writ ref.); State Board of Examiners in Optometry v. Marlow, 257 S.W.2d 761 (C.C.A.1953, no writ hist.). This is likewise true of decisions in other jurisdictions with different statutory provisions; e. g., State Board of Medical Reg. and Exam. v. Scherer, 221 Ind. 92, 46 N.E. 2d 602 (1943); In re Harmon, 52 Wash. 2d 118, 323 P.2d 653 (1958); Jaffe v. State Department of Health, 135 Conn. 339, 64 A.2d 330, 6 A.L.R.2d 664 (1949).

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

GRIFFIN, J., dissenting.

SMITH, Justice

(concurring).

I concur in the holding that the revocation of a medical license has been committed by the Legislature to the district courts as a judicial function. The revocation of a doctor’s license by a state agency is primarily a quasi-judicial function. While the Court in the present case has held that the trial court correctly ruled that the appeal from the order of revocation of the Board was to be tried de novo, and that the burden of proof was upon the Board, etc., yet, the Court, by way of dicta, seems to advance a new theory and a new test which would further complicate an already complex problem. Of course, it is true, as Mr. Justice Holmes once pointed out, the business of ■courts is to draw difficult lines, but, this •does not mean that it is the business of the ■courts to, by way of dicta, create perplexing problems.

The Court’s holding that “[t]he validity of a full de novo appeal requirement turns on the nature of the act of the administrative agency contemplated by the statute to which the appeal requirement refers,” coupled with the dictum — “We would have no •difficulty in holding that the acts and conduct of a medical practitioner in prescribing narcotic drugs in medical bad faith would support the revocation of his license under Subdivision (4) of Article 4505,” indicates to me that if testimony by experts in the field of medicine had been introduced, establishing that Scott had acted in medical bad faith, the Court would hold that the Legislature did not intend to provide for a trial de novo upon a conviction under subdivision (4) of Article 4505. Be that as it may, this philosophy is definitely an unnecessary and unwarranted extension of the line drawn by this court in the case of Key Western Life Insurance Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839. Although the Court cites Key Western on one narrow holding, yet, in my opinion, the Court, in the main, is, in principle, following the basic holding made in Key Western. Apparently the Court is disturbed because of the magnitude of the alleged violations of the law by the doctor. Admittedly, the charges, if true, are serious, indeed, but what would the Court say if we had before us a factual background showing only that the Board was seeking to revoke the doctor’s license because of a single violation ? This Court should bear in mind that its business is to construe statutes, when required to do so in a given case, and not to act as the trier of facts. I am opposed to any suggestion that is in the least contradictory of a holding that the Legislature meant to provide for a trial de novo in cases involving charges of a violation of Article 4505, including subdivision (4). Perhaps it could be said that, the Legislature acted unwisely in this respect, but that is not the question before us. This Court said in State Board of Insurance v. Betts, (1958), 158 Tex. 612, 315 S.W.2d 279, 281:

“It is concededly a serious matter to strike down duly enacted legislation as being unconstitutional. It is perhaps an equally serious matter to hold that the Legislature did not mean what it said. The problem of statutory construction is to ascertain the intent of the Legislature. When we abandon the plain meaning of words, statutory construction rests upon insecure and obscure foundations at best. It should perhaps be reiterated that Courts have no concern with the wisdom of legislative acts, but it is our plain duty to give effect to the stated purpose or plan of the Legislature, although to us it may seem ill advised or impracticable.”

This Court, in Key Western, quoted with approval the above pronouncement. It is my view that if the Court will give effect to the stated purpose of the Legislature, it will eliminate all suggestions that there possibly could be a way to circumvent the stated purpose, and will give to all doctors charged with a violation or violations the same fair and impartial trial under proper de novo proceedings.

To me, there is a close analogy between Key Western and this case. We have the question: Is the Board exercising legislative power in revoking a license, or is it performing a semi-judicial function? This question was sufficiently answered in Key Western when it was said:

“Therefore, the Board * * * could exercise no more discretion than the terms of the statute clearly provide, and it appears from a literal reading of the statute that the Board was not to have broad legislative discretion. The Board of Insurance Commissioners is empowered to disapprove a form for certain specific reasons only and may not dictate to the insurance companies the particular form to be used. Its only duty is to determine whether the form of the policy submitted for its approval meets the standards prescribed by the statute. The action of the Board of Insurance Commissioners ‘is particular and immediate, rather than, as in the case of legislative or rule-making action, general and future in effect.’ ” (Emphasis added.)

Clearly the Board’s action is “particular and immediate, rather than * * * general and future in effect.” The primary duty of the Texas State Board of Medical Examiners, under Articles 4505 and 4506, is to determine whether the conduct of the accused doctor is such that is enjoined by the statute. The degree of the alleged violation has nothing to do with this determination, likewise, it should have no bearing upon our problem of ascertaining the intent of the Legislature. As a matter of fact, we have a much less complex problem here than confronted us in Key Western. The charges against the doctor are akin to being criminal in nature. Certainly, the proposed action of the Board will peculiarly and directly affect the doctor. It is fundamental to our American system that a man “have his day in court.” Where the government, acting directly or through a Board or administrative agency, singles out an individual or small group and proposes action which substantially alter the individual’s rights then he is justly entitled to his day in court. The Legislature by enacting Articles 4505 and 4506 surely intended the proceedings to be in all respects a judicial action.

In Key Western, this Court cited with approval the holding of the United States Supreme Court wherein it was said:

“ ‘A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power.’ Prentis v. Atlantic Coast Line, 211 U.S. 210, 29 S.Ct. 67, 69, 53 L.Ed. 150.”

In Key Western, in holding that the determination made by the Board was not the exercise of legislative discretion, this Court rejected the contention that the case of Davis v. City of Lubbock, (1959) 160 Tex. 38, 326 S.W.2d 699, was controlling. Key Western was a direct appeal. In connection with our analysis of the Davis case, we said:

“Appellee fails to appreciate that there is a distinction between the types of decisions rendered by different administrative agencies. Some agencies perform judicial or quasi-judicial functions; others exercise powers which are essentially legislative. In re Harmon, 1958, 52 Wash.2d 118, 323 P.2d 653.”

This Court pointed out that in Davis we said:

“ ‘ * * * it is quite clear that a decision that it [a particular area] is a slum area under (3) of the definition is a decision of a question of pure public policy.’
“ ‘A decision or conclusion by the agency that a particular area is a “Slum Area” or a “Blighted Area” is thus made to rest upon a finding involving legislative discretion. A de novo judicial review of such a decision would clearly involve the exercise by the courts of nonjudicial powers.’ (Emphasis added.) 326 S.W.2d 699, 714.”

It is to be noted that the concurring opinion in Key Western states that under Article 21.21 of the Insurance Code, the Board is “given the power to call before it any person who is accused of deceptive acts or practices or unfair methods of competition in the business of insurance. It has authority to issue cease and desist orders to stop the objectionable practices. To me, this would have been the proper approach to the objectionable practices in this case.” This theory was rejected in Key Western, yet, the Court seems to be adopting such view by projecting the line drawn in Key Western, as heretofore indicated.

In June, 1963, this Court rendered its opinion in the case of Chemical Bank & Trust Company v. Falkner, Tex., 369 S.W. 2d 427. Contrary to the argument of some, the judgment in Chemical did not modify or overrule our opinion and judgment in Key Western rendered in October, 1961. This Court in Chemical clearly distinguished Key Western in disposing of the argument that Chemical was controlled by Key Western. The Court said:

“It is contended that the Key Western case laid down a broad rule for determining whether a function of an administrative agency is judicial or legislative. The court said that judicial action is ‘particular and immediate, rather than, as in the case of legislative or rule making action, general and future in effect/ * * * The heart of the decision in the Key Western case was that the statute did not give the Insurance Board legislative discretion in approving insurance policies.”

The dissenting opinion in Chemical, however, seems to have selected our approval in Key Western of a holding in a Minnesota case, State ex rel. Patterson v. Bates, 96 Minn. 110, 104 N.W. 709, as being the heart of the Key Western case. In Chemical, this Court did not accept the dissenting view that the question of whether there is a public need for a bank in a given area is a pure fact question — one which a trial judge or jury could decide on evidence available for introduction in court.

In Chemical as in Key Western this Court recognized that there is a distinction between the types of decisions rendered by different administrative agencies. In view of the analysis of Key Western in Chemical, I cannot conceive of a logical reason for rejecting a holding in this case that the doctor is entitled to an adjudication of his rights under de novo proceedings.

The holding in'Key Western is neither new nor novel. Since the writing of Key Western, this Court has caused further research to be made in an effort to find additional guide lines for determining the perplexing question: Was the agency action primarily rule making or adjudicative ?

In the case of Londoner v. Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103 (1908) and in the case of Bi-Metallic Investment Co. v. State Board of Equalization of Colorado, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915), the question was whether the plaintiff was entitled to a full due process hearing before proposed agency action became final. In the present case the question is whether the Legislature may provide de novo review of this type of agency action. In the Londoner case, the Court found that the agency’s action was quasi-judicial, and held that there had been a denial of due process. In reaching a different result in the Bi-Metallic case, Mr. Justice Holmes, speaking for the Court, distinguished the Londoner case with these words:

“In Londoner v. Denver * * * a local board had to determine ‘whether, in what amount, and upon whom’ a tax for paving a street should he levied for special benefits. A relatively small number of persons was concerned, who were exceptionally affected, in each case upon individual grounds, and it was held that they had a right to a hearing. But that decision is far from reaching a general determination dealing only with the principle upon which all the assessments in a county had been laid.” (Emphasis added.)

Taking the cases together, the rule seems to be that the first inquiry is whether the action is “forward looking” or whether it refers to past acts or a present situation. If the latter, then the action is adjudication. To me, the holding in Key Western is, in effect, the same as Londoner.

It is my position that if, as in Londoner, a small group were exceptionally affected, in each case upon individual grounds, most certainly the doctor in this case is exceptionally and individually affected.

In Key Western, this Court quoted from 4 Davis. Perhaps the Key Western holding could have been materially strengthened if this Court had quoted the following from Professor Davis’ 1 Administrative Law Treatise 413 (1958):

“ * * * Adjudicative facts are the facts about the parties and their activities, business and properties. Adjudicative facts usually answer the questions of who did what, where, when, how, why, with what motive or intent; adjudicative facts are roughly the kind of facts that go to a jury in a jury case. Legislative facts do not usually concern the immediate parties but are general facts which help the tribunal decide questions of law and policy and discretion.
“Facts pertaining to the parties and their business and activities, that is, adjudicative facts, are intrinsically the kind of facts that ordinarily ought not to be determined without giving the parties a chance to know and to meet any evidence that may be unfavorable to them, that is, without providing the parties an opportunity for trial. The reason is that the parties know more about the facts concerning themselves and their activities than anyone else is likely to know, and the parties are therefore in an especially good position to rebut or explain evidence that bears upon adjudicative facts. Yet people who are not necessarily parties, frequently the agencies and their staffs, may often be the masters of legislative facts. Because the parties may often have little or nothing to contribute to the development of legislative facts, the method of trial often is not required for the determination of disputed issues about legislative facts.”

It should be noted that Professor Davis seems to stress the distinction between adjudicative facts” and legislative facts.” This theory, however, does not run contrary to or conflict with the basic holding-in Key Western. In fact, this treatise-would have been a material adjunct to the-rules and definitions set out in Key Western! which were used in determining that the-policy form contains provisions which, “encourage misrepresentation or are unjust, unfair, inequitable,” was a judicial function.

For the reasons stated, I join in the judgment reversing that of the Court of Civil1 Appeals and affirming the judgment of the District Court.

      . “A physician or a dentist, in good faith and in the course of his professional practice only, may prescribe, administer, and dispense narcotic drugs * * “It shall be unlawful for any person to habitually use narcotic drugs, be addicted to the use of narcotic drugs, or be under the influence of narcotic drugs, provided, however, that nothing in this Section shall be applicable to a person who has a medical need for narcotic drugs * * *.” Article 725b, Section 7(1) and Article 725c, Section 2, Vernon’s Annotated Penal Code.

      . Texas State Board of Medical Examiners v. Scott, Tex.Civ.App., 377 S.W.2d 104.

      .Acts 1905, Ch. 150, p. 370; present Art. 4512, R.C.S., reading as follows:
      “Any physician or person who is engaged in the practice of medicine, surgery, osteopathy, or who belongs to any other school of medicine, whether they use the medicines in their practice or not, who shall be guilty of any fraudulent or dishonorable conduct, or of any malpractice, or shall, by any untrue or fraudulent statement or representations made as such physician or person to a patient or other person being treated by such physician or person, procure and withhold, or cause to be withheld, from another any money, negotiable note, or thing of value, may be suspended in his right to practice medicine or his license may be revoked by the district court of the county in which such physician or person resides, or of the county where such conduct or malpractice or false representations occurred, in the manner and form provided for revoking or suspending license of attorneys at law in this State.”

      . Acts 1907, Ch. CXXIH, p. 224.

      . Sustained against the attack that the language is vague, uncertain and indefinite. Morse v. State Board of Medical Examiners, 57 Tex.Civ.App. 93, 122 S.W. 446 (1909, wr. ref.); Berry v. State, 135 S.W. 631 (C.C.A.1911, wr. ref.) : cf. Texas State Board of Medical Examiners v. Koepsel, 159 Tex. 479, 322 S.W.2d 609 (1959).

      . Acts 1939, Ch. 3, p. 352.

      . Acts 1953, Ch. 426, p. 1029.

      . Held invalid as to drug addiction in Ex Parte Rogers, 366 S.W.2d 559.