author: COLEMAN, Justice.

text:
    Ivery TERRY, Appellant, v. SOUTHEAST PACKING CO., Inc., Appellee.
    No. 15071.
    Court of Civil Appeals of Texas. Houston.
    June 8, 1967.

      W. Jiles Roberts, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Dixie Smith, Houston, for ap-pellee.
   COLEMAN, Justice.

This is an appeal from a summary judgment. The principal issue is whether one receiving compensation under the Longshoremen’s and Harbor Workers’ Compensation Act is precluded from recovering damages from his employer for injuries received while performing the duties of a seaman aboard a vessel caused by an un-seaworthy condition of the vessel, which was owned by the employer.

Certain depositions were considered by the trial court and they have been brought to this Court as an agreed statement of facts. Since this is a summary judgment, the burden rested on the movant to negative the existence of any genuine issue of material fact, and all doubts are resolved against movant. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, 1961.

Appellant had been employed for several years by the appellee as general maintenance man to work in appellee’s place of business located at Pier 22 in the City of Galveston, Texas. From time to time appellant was required to do minor maintenance on shrimp boats owned by the appel-lee, and on other shrimp boats doing business with appellee.

Appellant received an injury during the ■ course of his employment while working aboard a shrimp trawler owned by appellee and located in navigable waters in the Galveston harbor. Appellant has alleged, and offered testimony, that at the time he was injured he .was performing the work of a seaman.

Appellant submitted a claim for compensation under the Longshoremen’s and Harbor Workers’ Compensation Act and was awarded compensation. This is an action in personam by an employee against his employer for damages based both on negligence and on the unseaworthy condition of the vessel owned by the employer. There is evidence raising issues of fact in support of the cause of action based on the alleged unseaworthy condition of the vessel.

Section 90S of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A., states as follows:

“The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other • liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.”

While this Act apparently bars an employee entitled to compensation under its provision from suing his employer directly in personam or in rem for damages resulting from injuries received in the course of his employment, the Supreme Court of the United States has held to the contrary where the cause of action is based on the unseaworthiness of a vessel owned by the employer. Reed v. S. S. Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963); Jackson v. Lykes Bros. Steamship Co., Inc., 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488, opinion (May 8, 1967).

Appellee would distinguish these cases by pointing out that the injured party in each of these cases was a longshoreman, while appellant is a maintenance man. This distinction is not valid.

In a footnote to the majority opinion in Jackson v. Lykes Bros. Steamship Co., supra, by Mr. Justice Black, he pointed out that other kinds of maritime employees, besides stevedores, who performed jobs formerly done by seamen, were entitled to the protection of the doctrine of seaworthiness. He specifically referred to longshoremen, carpenters, electricians, ship cleaners, repairmen, and riggers, citing appropriate cases, which need not be repeated here.

The trial court erred in granting the motion for summary judgment. This case is reversed and the cause is remanded.


source: Caselaw Access Project

author: CLAUDE WILLIAMS, Justice.

license: Public Domain

text:
    Jearl E. GOODNIGHT, Appellant, v. ZURICH INSURANCE COMPANY, Appellee.
    No. 16915.
    Court of Civil Appeals of Texas. Dallas.
    May 19, 1967.
    Rehearing Denied June 2, 1967.

      Chester Ball of Harris & Ball, Arlington, for appellant.
    Byron L. Falk & Robt. G. Vial of Akin, Vial, Hamilton, Koch & Tubb, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

The crucial question presented by this workmen’s compensation case is whether Jearl E. Goodnight was an employee, within the meaning of the Workmen’s Compensation Act, of E. C. Houston at the time he sustained his injuries made the basis for his claim for compensation against Zurich Insurance Company. The trial court sustained the motion for summary judgment presented by Zurich, and decreed that Goodnight take nothing against such company. Goodnight appeals and contends, in four points of error, that at the time he was injured he did occupy the status of employee of Houston inasmuch as one L. F. McDonald, acting as either agent or employee of Houston, had hired him to work for Houston.

The material facts are practically without •dispute. Appellant Goodnight, at the time Tie sustained his injuries on April 13, 1964, was an experienced welder and a full time employee of Frank Garland who owned and •operated a welding shop. Occasionally Goodnight undertook to do other welding jobs outside the shop and at times which ■did not interfere with his regular employment. He had previously done work for certain of Mr. Garland’s customers outside the shop on odd jobs but on such occasions he was paid through his employer, Mr. Garland. L. F. McDonald was also an experienced welder and had worked for Garland in past years. Welding work was divided into two categories, “in-shop” and “job site” jobs. The former work was accomplished inside the shop and delivered to customers while the latter was performed on the job site itself. Goodnight had worked regularly for Garland doing “in-shop” welding work and also, as stated, had done odd jobs at •odd times doing “job site” welding work for Garland’s customers. McDonald did job site welding for customers of Garland’s shop.

E. C. Houston was a master electrician and the controlling partner in E. C. Houston Electric Company. Garland had done welding work for Houston over a number of years.

The City of Dallas solicited bids from contractors in connection with opening and remodeling the lighting facilities at three city parks. Houston was interested in obtaining the general contract on this proposal by the city. Houston contacted Garland and obtained from him a quotation on costs for the welding portions of the work required by the city’s plans and specifications. Houston was successful in obtaining the general contract from the city to do the work whereupon he orally subcontracted the “in-shop” welding to Garland.

It became evident that Houston would also need welding done at the parks themselves, that is, “job site” welding. He thereupon asked Garland to subcontract that work also. Garland declined the “job site” work but recommended L. F. McDonald to do that work. McDonald called Houston and the two consulted the plans and specifications promulgated by the city. McDonald quoted a price for drilling holes and doing the welding at the three parks, on a piece work basis, of $3.00 per pole which represented welding a hole at the top and a hole at the bottom of each pole. McDonald and Houston then entered into an oral agreement on that basis and McDonald proceeded to do all the work at the first park. When it was subsequently discovered that some of the poles would require one hole at the top, which was the harder work, Houston agreed to pay, and McDonald agreed to accept, $4.00 per hole and their contract was therefore renegotiated upon that basis.

McDonald had also entered into an arrangement with Garland, before starting to work at the park jobs, whereby McDonald agreed to pay Garland a certain percentage of what he received from the contract with Houston and in return Garland furnished McDonald with the equipment to be used in the performance of the Houston-McDonald contract. The equipment included a portable welding machine, trailer, safety belt, ladder and a pickup truck.

McDonald’s job was a one-man operation. He had no regular employees to aid or assist him in the work. After performing a part of the contract McDonald decided, for health reasons, that he was not physically able to do any more of the work which required climbing the poles. McDonald testified that he went to Houston and asked him if he knew of someone to help him and Houston replied that he did not know of anyone. In this regard McDonald said;

“A What I told Mr. Garland was that I wasn’t going to be able to do it, and Houston asked me to, or, well, he didn’t ask me to, I take that back, he said he didn’t know of anyone that could do it. And I told him I would try to find someone to help him do it, even if I had to help him. And, so I came on down to the shop and was talking to Mr. Garland and Mr. Goodnight, and Mr. Goodnight said he would go out there and do it for me on his own hours.”

McDonald testified that he did not ask Houston to back out of the contract or break the contract nor did he “renege” on the contract or ask that it be renegotiated. He testified that he approached Garland while Goodnight was present, and asked Garland for his help or. for recommendation of a man to help him. Goodnight spoke up and offered to do the climbing work. Garland spoke up and said that Goodnight could not do it while he was working for him but that if Goodnight wanted to do it on weekends or after hours he had no objection. Goodnight and McDonald entered into the arrangement whereby Goodnight would do the work on the poles. With reference to payment McDonald testified:

“Q Well, what was your arrangement with Mr. Goodnight, what did you offer him?
“A Well, I just told him I would give him what, in other words, what I would get out of it. I wasn’t getting nothing out of it.”

McDonald did not tell Houston that he was going to use Goodnight and Houston did not know until after the accident that Goodnight was working on the poles. McDonald said that he gave instructions to Goodnight as to what to do:

“Q Now, did you go over with Mr. Goodnight what Mr. Houston had told you how he wanted the work done ?
“A No, not particular, I just told where I wanted the holes and where to-put them, and he went up there and started burning them.
“Q Well, you had given him the same instructions that you had received ?
“A Yes.”

At 4:00 P.M. on April 13, 1964, about an hour and a half before Goodnight was to get off work at the Garland shop, McDonald came to the shop and he and Goodnight obtained Garland’s permission for Goodnight to leave early so that he could go to the park and do the work on the poles. Shortly after their arrival at the park, which was the first time Goodnight had done any work on the job, and while Goodnight was up on a pole fixing to drill a hole with a cutting; torch, and while McDonald was on the ground to tie the welding machines and cutting torch to Goodnight’s rope, Goodnight’s safety belt broke and he fell to the ground sustaining serious injuries.

After Goodnight’s injuries McDonald completed the job with the help of employees of Budd’s Welding Shop, whom he had engaged on a piece work basis. McDonald stated that he made a profit on that work. Later, McDonald went to Goodnight and offered to pay him for the work but Goodnight refused to accept the money.

Goodnight was not listed on Houston’s books as an employee nor did Houston withhold any Social Security or other deductions from money paid on the job. Neither did McDonald withhold Social Security or other benefits for Goodnight.

We have carefully reviewed the entire-record in the light of the familiar rules announced by our Supreme Court in both Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952), and Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (1965), and having done so we are convinced, and' so hold, that no issue of fact on the question of employment by Houston was presented and therefore the trial court was correct in granting appellee’s motion for summary judgment. Appellant’s points must be overruled and the judgment affirmed.

Appellant contends that the record demonstrates that McDonald, acting either as agent or employee of Houston, hired him to do the work that he was performing at the time he sustained his injuries. He points to McDonald’s statement in his deposition that he told Houston that he felt personally unable to complete the job and that he would attempt to get someone else to do it for him. While we recognize the rule of law that a person may be employed by an agent or employee of an employer to do certain work we fail to find evidence of probative force to bring appellant within that rule. We think that appellant’s status at the time he sustained his injuries must be determined by all of the facts and circumstances surrounding his work at that time.

The disposition of this case is governed by the opinion of our Supreme Court in Anchor Casualty Co. v. Harts-field, 390 S.W.2d 469 (1965). In that case Smith was a general contractor who subcontracted all the carpentry work on an apartment house to Wolff, who in turn engaged Hartsfield to do the trim and finish work in the building. Hartsfield furnished his own tools, was paid a flat sum for work on each apartment, and was not carried on the payroll of Wolff, nor were Social Security or income taxes withheld from his salary by Wolff. Hartsfield was not required to be at work or to quit at any particular time nor to work any particular hours a day. In holding that Hartsfield was an independent contractor, as a matter of law, and not an employee of Wolff, under Art. 8309, Sec. 1, Texas Revised Civil Statutes, the Supreme Court said:

“The burden of proof was upon Harts-field to show that at the time of his injury he was an employee within the meaning of the Workmen’s Compensation Act. The parties agree that right of control is the determinative test of whether the workman is an employee or an independent contractor, and hence whether or not the workman qualifies for compensation under the Act.”

The Supreme Court said that the record failed to reveal any evidence to demonstrate that Wolff had the right to control the details of Hartsfield’s employment but that all he expected was to control the end results of Hartsfield’s efforts. The Supreme Court then set forth the controlling factors in determining the status of an employee, as follows:

“The facts that the work by Hartsfield required some special skill, that he furnished his own tools, that he was doing a particular job according to predetermined plans, that he could come to work and leave at times within his discretion, that he was paid by the job, and that he was not carried on the payroll or on social security and income tax withholding rolls of Wolff, establish that Hartsfield was an independent contractor.” (Citing authorities.)

When we apply the six controlling factors laid down by the court to the details of work done by Goodnight we find that he occupied the same relationship to Houston as Harts-field did to Wolff. First, as to the element of special skill, the record reveals that both McDonald and Goodnight were experienced welders. Houston was an electrician. Obviously Houston was not equipped to do the welding job, either in person or through employees. He subcontracted this portion of the work to McDonald who, in turn, turned the job over to Goodnight to be carried on in the same manner. The only thing Houston was interested in was to see that a hole was cut in the pole and a nipple welded in it for wires to go through according to the city plans and specifications. No one connected with Houston directed. Goodnight or McDonald as to what to do, how to get to the job, how to climb the poles, how to place the ladders, or any of the other details of the work. Both McDonald and Goodnight were depending upon their skill and experience as welders and not upon instructions from Houston.

Secondly, it is undisputed that the tools and equipment used by both Goodnight and McDonald were furnished by Garland by virtue of McDonald’s contract with him whereby Garland was to receive a percentage of the job. Houston had no knowledge of the agreement between Garland and McDonald but assumed that McDonald would provide all equipment and tools necessary. Appellant argues that Houston did provide the couplings and nipples that were attached to the poles but this fact alone does not change his status. In Traders & General Ins. Co. v, Ferris, 312 S.W.2d 311 (Tex.Civ.App., Amarillo 1958, writ ref’d), the court held as a matter of law that the furnishing of blocks, cement and sand, by the general building contractor to the subcontractor who was to lay the blocks while building a gasoline station for a certain sum per block, did not make the subcontractor, or his helpers, employees of the general contractor for workmen’s compensation.

Thirdly, as to plans and specifications, Houston showed McDonald such plans and told him where the welding was to be done. McDonald told Goodnight where he wanted the holes put in the poles. Houston did not tell Goodnight anything about the job nor was he on the job site telling either McDonald or Goodnight what to do. Houston merely wanted the plans and specifications complied with by those who knew how to do the work.

Fourthly, as to working hours, nothing was said about the length of time to be required on the job. McDonald was not required to be at any certain park at any certain hour nor was he required to leave at any certain hour. He could come and go as he pleased. Goodnight was to work at odd hours which did not interfere with his regular work with Garland.

Fifthly, as to payment, it is undisputed that McDonald was to be paid so much per pole by Houston. McDonald and Goodnight had reached no final financial agreement between themselves but McDonald said that he told Goodnight he would get whatever he he had coming from the job. Houston made no arrangements with Goodnight concerning payment.

Sixth, and finally, as to payment of Social Security and withholding taxes, McDonald was not carried on Houston’s payroll, Social Security and withholding tax records, and Houston did not report McDonald as an employee to his workmen’s compensation carrier. Houston did not pay Goodnight anything nor did he offer to pay him anything.

The fact that Houston may have had broad and general supervisory control over the job performed by McDonald does not bring the case within the element of right of control as discussed by the Supreme Court in Hartsfield, supra. This question was thoroughly discussed by the court in Travelers Ins. Co. v. Brown, 395 S.W.2d 701 (Tex.Civ.App., Texarkana 1965, writ ref’d n.r.e.). The mere fact that a general contractor has a right to supervise the work to see that the plans and specifications are being complied with by a subcontractor does not amount to such control or right of control as would change the status between the parties.

Appellant takes the position that the contract between the City of Dallas and Houston contains a provision which prohibits Houston from making subcontracts without written consent of the city. Therefore, says appellant, any subcontract with McDonald was illegal and void and all that McDonald could do was to hire Goodnight to work for Houston. This contention is without merit and must be rejected. The same contention was asserted in Carter Publications, Inc. v. Davis, 68 S.W.2d 640 (Tex.Civ.App., Waco 1934, writ ref’d), in which the party seeking to establish an employer-employee relationship asserted that the individual in question had to be an employee because the written contract was legally void. The court rejected this contention saying that even if the original contract was void it would not “result in the creation of the relationship of master and servant between such parties. The relationship of master and servant does not spring up of its own accord, but must be created by the parties by mutual agreement either expressed or implied.” Even if Houston had no legal power under his general contract with the city to subcontract the welding work, insofar as Goodnight is concerned the relationship between McDonald and Houston was that of principal and independent contractor. As the court said in Carter, supra:

“If it be conceded that the contract was void and could not be enforced by either party against the other, yet as to third parties it furnished proof of the understanding between the parties thereto as to who should have control over the physical conduct of those who were to perform the work in question.”

See also Travelers Ins. Co. v. Brown, supra.

In summary, it appears plain from the record that Houston, an electrician, obtained a general contract from the City of Dallas to do certain work and a portion of such work involved welding which was not within Houston’s specialized field. He subcontracted this work to McDonald who, when he found it impractical or impossible to physically complete the work, turned it over to Goodnight, also an experienced welder. There was no actual contact between Goodnight and Houston. We find no evidence of probative force to establish that McDonald was either the employee or agent of Houston or that he contracted with Goodnight to work for Houston as an employee. All of the evidence points to the contrary and demonstrates conclusively that Goodnight, at the time of the receipt of his injuries, was an independent contractor or an employee of an independent contractor, McDonald. Smith v. Fireman’s Ins. Co. of Newark, N. J., 398 S.W.2d 435 (Tex.Civ.App., Houston 1966, no writ).

Finding no evidence of probative force in this record that would create an issue of fact, we overrule appellant’s points and affirm the judgment.

Affirmed.


author: FINCH, Presiding Judge.

text:
    BLUE RIDGE SHOPPING CENTER, INC., a corporation, Plaintiff-Respondent, v. Robert SCHLEININGER, William H. Suggs, Gayle Crawford and Harry Kress et al., Defendants-Appellants.
    No. 52514.
    Supreme Court of Missouri, Division No. 2.
    July 10, 1967.
    William J. Burrell, Dietrich, Tyler, Davis, Burrell & Dicus, Kansas City, for respondent.
    Joseph N. Miniace, Louis J. Pelofsky, Kansas City, for appellants.
   FINCH, Presiding Judge.

Plaintiff, owner and operator of a Shopping Center in Kansas City, Missouri, filed suit against defendants as representatives of a class to enjoin them from soliciting or distributing handbills, printed matter or leaflets on the Blue Ridge Shopping Center premises, or in any way interfering with the customers, invitees, or other persons on the Shopping Center premises. The trial court entered such an injunction and the defendants have appealed.

Plaintiff’s verified petition was filed on April 29, 1966. The defendants were alleged to be the business agents and officers of Teamsters Local No. 838, and it was alleged that they fairly and adequately represented the membership of said Union Local. Attorneys for defendants so stipulated at the hearing. The petition alleged that the Shopping Center premises were private property on which solicitations or distribution of printed matter was prohibited. In view of the disposition which we make of this case, it is not necessary to detail herein the various other grounds alleged in the petition for the relief sought.

The trial court, on the date the petition was filed, entered an order for defendants to show cause why a temporary injunction should not be granted. An evidentiary hearing was held on May 6, 1966, on the question of whether a temporary injunction would be ordered. Following conclusion of that hearing, both plaintiff and defendants filed briefs, and on May 26, 1966, the trial court entered findings of fact and conclusions of law and granted a temporary injunction against' “soliciting or distributing handbills, printed matter or leaflets” on the Shopping Center property “or in any way interfering with the customers, invitees, or other persons thereon, until the further order of this court.”

The defendants did not at any time, either before or after the hearing on the temporary injunction, file any responsive pleading to the plaintiff’s petition.

On August 4, 1966, a stipulation signed by attorneys for plaintiff and defendants was filed. It provided as follows:

“1. The evidence and statements of counsel presented at the hearing for a temporary injunction on May 6, 1966 shall be considered as having been reintroduced into evidence at a final hearing on plaintiff’s request for a permanent injunction without either party introducing any new or additional evidence.
“2. The Court may enter the following Order:
PERMANENT INJUNCTION
“On May 26,1966, this Court entered an order granting plaintiff a temporary injunction in the above-entitled cause. The Parties now stipulate and agree that this temporary injunction should be made permanent and that the evidence considered in granting the temporary injunction shall be reintroduced, and considered in determining whether to grant a permanent injunction.
“Wherefore, the Court, having considered the evidence, the statements of counsel, the pleadings and briefs filed, and the parties having agreed that there are no new facts or circumstances to be submitted to the Court, finds the issues herein in favor of plaintiff and against defendants and finds that the temporary injunction entered herein on May 26, 1966 should be made permanent and a permanent injunction granted to the plaintiff as prayed for in its petition.
“It is therefore ordered, adjudged and decreed that defendants and each of them and their respective officers, agents, employees, members, representatives and all other persons acting in their behalf or at_ their behest or in concert with them be and they are hereby perpetually enjoined, restrained and prohibited from soliciting or distributing handbills, printed matter or leaflets in and upon the Blue Ridge Shopping Center at 4200 Blue Ridge Boulevard in Jackson County, Missouri, legally described as follows:
“The West Seven (7) acres of Lot Six (6) and all of Lots Seven (7), Eight (8), Nine (9), Fourteen (14) and Fifteen (IS) lying south and west of the rights of way of U. S. Highway #40 and Blue Ridge Boulevard, OTT’S PLAT, a subdivision in Kansas City and Independence, Jackson County, Missouri,
or in any way interfering with the customers, invitees, or other persons thereon.
“So stipulated.”

On September 9, 1966, the trial court, pursuant to the stipulation, entered a judgment granting a permanent injunction, the order being substantially in the form set out in the stipulation. On the same day, defendants then filed a motion for rehearing in which they “respectfully request the Court to grant a rehearing in the above entitled cause by reason of the fact that the Court erred in finding that Blue Ridge Shopping Center, Inc., was entitled to an injunction against defendant’s lawful labor activity.” This constituted the entire motion for rehearing.

We have concluded that appellate jurisdiction of this case is not vested in the Supreme Court. Defendants’ brief asserts that “as a defense, defendants pleaded that its activities were protected by the First Amendment to the United States Constitution” and that the Supreme Court of Missouri has jurisdiction for that reason. We have concluded that this constitutional issue is not preserved and presented to us for review. It is well established both by decision and by our rules relating to civil procedure that constitutional questions, in addition to the requirement that they be raised at the first opportunity and preserved throughout the case, must be included in the motion for new trial. Witt v. City of Webster Groves, Mo., 383 S.W.2d 723 [2,3]; Rutlader v. Rutlader, Mo., 407 S. W.2d 906 [4]; Supreme Court Rule 79.03, V.A.M.R. Such requirement is applicable to proceedings in equity as well as at law. Adams v. Richardson, Mo., 337 S.W.2d 911 [1]; In re J.L.L., Mo.App., 402 S.W.2d 629 [9, 10].

When defendants filed their motion for rehearing, they filed “suggestions in support of motion for rehearing.” Such suggestions included the sentence, “In the same connection, the court erred in determining that defendants’ constitutional rights of free speech would not be abridged by this injunction.” Defendants argue that their suggestions or brief in support of their motion for rehearing should be treated as a part of the motion for rehearing, and that the above quoted sentence is sufficient to preserve for appellate review the constitutional question of violation of the First Amendment to the Constitution of the United States. Defendants seek to file a supplemental transcript in which they include the brief which they filed with the trial court on the question of granting a temporary injunction plus the suggestions which they filed in support of their motion for rehearing. In effect, defendants claim that the original brief should suffice as an answer for the purpose of raising and preserving the constitutional question, and that the suggestions in support of their motion for rehearing should be considered a part of the motion for rehearing for the purpose of preserving the constitutional question on appeal.

Even if such sentence in the suggestions were as specific as it is required to be in order to preserve a constitutional question, which it is not, it is clear that the brief filed by the attorneys in support of the motion for rehearing does not purport to be and is not a part of the motion for rehearing herein. We are unwilling to hold that one may file a shotgun motion and yet be held to comply with the rules and cases relative to the content of a motion for new trial or rehearing if he mentions the question in a brief in support thereof.

The case is transferred to the Kansas City Court of Appeals.

All of the Judges concur.


author: DONNELLY, Judge.

text:
    Charles H. WOOD, Appellant, v. JAMES B. NUTTER & COMPANY, a Corporation, Respondent.
    No. 52407.
    Supreme Court of Missouri, Division No. 2.
    July 10, 1967.

      John J. Alder, Alder, Morrison & Rixner, Kansas City, for appellant.
    Frank P. Sebree, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, for respondent.
   DONNELLY, Judge.

This is an appeal by plaintiff Charles H. Wood from a summary judgment entered on his cause of action which is based upon breach of an alleged oral employment contract.

The record on appeal consists of pleadings, interrogatories, depositions, exhibits, and affidavits. Plaintiff contends the trial court erred in entering summary judgment because substantial, material issues of fact remain in the case and defendant is not shown “by unassailable proof to be entitled thereto as a matter of law.” S.Ct. Rule 74.04(h), V.A.M.R.; Maddock v. Lewis, Mo.Sup., 386 S.W.2d 406, 408-409 [1]. We “view the record on summary judgment in the light most favorable to the party against whom the judgment is rendered.” Cooper v. Finke, Mo.Sup., 376 S.W.2d 225, 228 [2],

According to plaintiff’s evidence: Plaintiff is an accountant specializing in mortgage servicing and accounting. Defendant is a mortgage loan broker. In December, 1960, plaintiff discussed employment with two officers of defendant. They entered into an oral employment agreement whereby plaintiff agreed to install his systems of mortgage servicing and accounting and defendant agreed to pay him $600 per month plus “one-third of the net profit of James B. Nutter and Company, derived from its servicing operation.”

Defendant describes its whole operation as follows: “The defendant James B. Nutter and Company is a mortgage loan broker making loans to persons mostly on the security of single-family residences. Defendant in turn sells the loans to permanent investors such as savings and loan associations, insurance companies and savings banks. Defendant’s income comes from four sources:

“(a) Loan Commissions. A loan commission is paid to defendant by someone purchasing a house so that the purchaser can obtain a real estate loan from defendant.

“(b) Loan Discounts. A loan discount is paid to defendant by the seller of the house in order to induce defendant to make the loan to the purchaser. This discount is offset, at least in part, by the discount which defendant has to pay to the permanent investor when defendant sells the loan to the permanent investor.

“(c) Interest Income. Interest on,each, loan made by defendant is received by defendant during the time that it owns the loan (that is to say, between the time defendant makes the loan and the time the loan is sold to a permanent investor). This interest income is offset in part by the interest expense which defendant pays to commercial banks in order to obtain money to make the loan.

“(d) Servicing Fees. Defendant receives servicing fees paid monthly by permanent investors in all cases where defendant handles the collection and servicing of the loan after the permanent investor has purchased it.

“The servicing of a loan includes the collection of the proceeds of a loan, the remitting of the proceeds of the loan to the investor who owns it, the taking of steps to protect the loan and the real estate that secures it, the collection and escrow of money for taxes and insurance, and the paying of the taxes and insurance premiums on real estate as they come due.”

Plaintiff started to work December 7, 1960, and shortly thereafter became Treasurer of the company. He terminated his employment January 8, 1965. He filed suit March 19, 1965.

Defendant first contends the trial court properly entered summary judgment “because the oral agreement which plaintiff claims to have entered into with defendant is too vague, indefinite and uncertain to be enforced.” Plaintiff testified in his deposition that when the oral agreement was made he and defendant’s officers did not discuss “how the question of servicing profit was going to be arrived at.” He also made several admissions indicating an inability to calculate net profits from defendant’s servicing operation. According to the employment agreement, plaintiff was to be paid one-third of the net profit derived from the servicing operation, which is but one of four sources of defendant’s income. Plaintiff’s problem arose when he was asked to allocate defendant’s expenses between the servicing operation and the other three operations of the company in order to determine the net profit of the servicing operation. His problem became more pronounced when, on January 25, 1966, defendant filed a motion to stay all discovery on the part of plaintiff and the motion was, on February 9, 1966, sustained by the trial court. (See S.Ct. Rule 58.01, V. A.M.R.)

On May 26, 1966, defendant filed its Motion for Summary Judgment with supporting affidavits. Thereafter, plaintiff filed his suggestions in opposition. Attached thereto is an affidavit, personally sworn to by plaintiff, in which he makes the following statements:

“3. He was and is personally familiar with the keeping of the records, the approximate time consumed by various employees, their pay, the cost of managing and operating the department and that if given an opportunity to examine the books of the company personally and with the possible assistance of others, within two to four weeks he could arrive at a fair and reasonable amount of money or profit that was made by his operation of the servicing department for the years in question.

“4. At no time has he said nor believed that it was wholly impossible to reach or compose such figures, but only that he could not do it without the aid of company records and books; he did give to defendant a formula, attached as Exhibit A, which defendant has rejected without excuse or reason as being improper.”

»»****

“9. Regardless of the calculations or recitation of income in defendant’s affidavit, the measure of profit in the servicing department arises not from the net income to the defendant corporation for all its operations, but from the savings in salaries, space, handling costs of defendant’s operations in the servicing department; thus, plaintiff verily believes that the records of defendant-company will show that when plaintiff first began working for company for defendant, the gross volume of mortgages handled was approximately $2,-000,000, and at the termination of his association with defendant was approximately $23,000,000 all of which was done with virtually no increase in help or other fixed costs to the very great advantage of defendant in its overall operations.”

Plaintiff’s affidavit shows that genuine issues as to material facts remain in the case unless the employment contract is unenforceable as a matter of law. The following comments are made in Annotation, 18 A.L.R.2d 211, at page 213: “The authorities make it clear that the question of whether a profit-sharing agreement, uncertain in that it fails to set forth the extent of the employee’s share, is sufficiently definite to bind the employer is not susceptible to rule-of-thumb solution. On the contrary, although the courts uniformly recite the rule that contracts must be definite, the compliance or noncompliance with this rule by an individual promise by an employer to share profits with his employee is most often, if not always, determined from a consideration of all surrounding facts and circumstances. And the courts have shown a tendency to grant recovery, if that can possibly be done, to an employee who has proved the making of the profit-sharing promise and who has acted in reliance thereon.” See also Brunner v. Stix, Baer & Fuller Co., 352 Mo. 1225, 181 S.W.2d 643; Allan v. Hargadine-McKittrick Dry Goods Co., 315 Mo. 254, 286 S.W. 16; and Cygan v. Megathlin, 326 Mass. 732, 96 N. E.2d 702.

The following language of Cardozo, J., in his dissenting opinion in Varney v. Dit-mars, 217 N.Y. 223, 111 N.E. 822, 826/ though not directed to the propriety of summary judgment, is appropriate: “I do not think it is true that a promise to pay an employe a fair share of the profits in addition to his salary is always and of necessity too vague to be enforced. Noble v. Joseph Burnett Co., 208 Mass. 75, 94 N.E. 289; Silver v. Graves, 210 Mass. 26, 95 N.E. 948; Brennan v. Employers’ Liability Assurance Corp., Ltd., 213 Mass. 365, 100 N.E. 633; Joy v. City of St. Louis, 138 U.S. 1, 43, 11 Sup.Ct. 243, 34 L.Ed. 843. The promise must, of course, appear to have been made with contractual intent. Henderson Bridge Co. v. McGrath, 134 U.S. 260, 275, 10 Sup.Ct. 730, 33 L.Ed. 934. But if that intent is present, it cannot be said from the mere form of the promise that the estimate of the reward is inherently impossible. The data essential to measurement may be lacking in the particular instance, and yet they may conceivably be supplied. It is possible, for example, that in some, occupations an employé would be able to prove a percentage regulated by custom. The difficulty in this case is not so much in the contract as in the evidence.”

It is well settled in Missouri that summary judgment may not be substituted for a trial of factual issues “unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.” Cooper v. Finke, supra, 376 S.W.2d 1. c. 229. “The difficulty in [plaintiff’s] case is not so much in the contract as in the evidence.” It may be that plaintiff will be unable to prove his case at the trial. However, we cannot hold on the record before us that the oral agreement of employment is unenforceable as a matter of law.

Defendant finally contends the trial court properly entered summary judgment “because plaintiff, for four years, continued in the employ of defendant accepting, without complaint or objection, the raises and bonuses that defendant paid him and plaintiff is therefore estopped from asserting, now, that defendant owes him additional compensation.”

The defense of estoppel was not raised by defendant in its answer, nor in its motion for summary judgment, nor in the affidavits and suggestions attached thereto. Plaintiff had no opportunity in the trial court to rebut it. It is first raised on appeal. We will not consider it.

The judgment is reversed and the cause remanded.

All of the Judges concur.


author: HOLMAN, Judge.

text:
    SAM KRAUS COMPANY, a Corporation, (Plaintiff) Appellant, v. STATE HIGHWAY COMMISSION of Missouri, (Defendant) Respondent.
    No. 52370.
    Supreme Court of Missouri, Division No. 1.
    July 10, 1967.
    Derrick & Holderle, Benjamin C. Klene, St. Louis, Joseph R. Nacy, Jefferson City, for plaintiff-appellant.
    Robert L. Hyder, Bruce A. Ring, Jefferson City, for defendant-respondent.
   HOLMAN, Judge.

On February 27, 1964, plaintiff filed this suit seeking to recover from defendant the sum of $35,000, together with 6% interest from December 11, 1957. The trial court sustained defendant’s motion for summary judgment which was based upon the contention that the claim was barred by the five-year statute of limitations. See § 516.120. Plaintiff has duly appealed from the judgment entered.

The petition alleges that on March 11, 1953, plaintiff “entered into a contract with the defendant * * * to do certain work on a project known as Third Street Highway, in the City of St. Louis; * * * that Third Street Highway adjoins certain property known as the St. Louis Cordage Company building * * * owned by American Manufacturing Company; * * * that excavation required by the plans and specifications for a retaining wall abutted and adjoined the foundation of the St. Louis Cordage Company building; that said plans and specifications required special construction methods to accomplish the construction for the retaining wall * * *. Defendant warranted that its engineering design, plans and specifications, were adequate to accomplish the purpose manifested by the plans and specifications without any damage to adjacent or abutting property and that if the plaintiff followed the plans and specifications and adhered to the specific provisions thereof and executed this work in a workmanlike manner in accordance therewith, no damage would result to any property or any buildings adjacent to and abutting on the proposed work. * * * that at all times it adhered to and followed the plans and specifications, including all change orders issued during the progress of the work. * * * that despite the fact that it followed the plans and specifications and change orders in connection therewith implicitly and completely, the foundation of the St. Louis Cordage Company building settled and the walls cracked as a result of the work required of the plaintiff by the defendant. * * * that the basis of the design for the construction of the retaining wall was deficient and did not conform to prudent and accepted engineering standards. In addition to the defect in design, the defendant required the plaintiff to drive piling in close proximity to said building and to excavate for the construction of said Sections 6, 7, and 8 of Retaining Wall ‘A’ without adequate engineering plans and specifications for preventing the displacement or settlement of the earth upon which the building was founded or for otherwise preventing damage to the said building; that defendant delayed the work unnecessarily during the period of excavation and construction, thereby permitting and encouraging the erosion of lands underneath the foundation of said building and the consolidation of the soft, wet clays due to the localized lowering of the ground water table. * * * Defendant required the blasting of rock in close proximity to said building to increase the depth of the excavation which accelerated the displacement and settlement of the earth underneath the foundation of said building.”

The petition further alleged that “on March 8, 1955, a suit was filed by the American Manufacturing Company against it for the sum of $150,000.00; that thereafter, in order to minimize the damage to the Sam Kraus Company, a compromise of the said claim was effected on or about December 11, 1957, by the plaintiff paying $35,000.00 to the American Manufacturing Company. * * * that the damage to the building was a result of the deficient engineering design and specifications, change order and delays of the defendant, and its requiring that said work be performed according to said faulty design; that the damages to plaintiff resulted directly and proximately from defendant’s failure to furnish adequate engineering plans, specifications and directions for accomplishing the work in accordance with the contract; * * * that because of the breach of said warranty on the part of the defendant, it has been damaged in the sum of Thirty-Five Thousand Dollars.”

It is provided in § 516.120(1) that “[a]ll actions upon contracts, obligations or liabilities, express or implied, except those mentioned in section 516.110 * * * ” must be filed within five years. Section 516.-110(1) provides that the ten-year statute is applicable to “An action upon any writing, whether sealed or unsealed, for the payment of money or property.”

As indicated, defendant contends that the five-year statute is applicable, while plaintiff claims that this is an action on a written contract for the payment of money and hence the ten-year statute should be applied. There would appear to be no question but that plaintiff’s claim accrued'not later than December 11, 1957, and that if the five-year statute is applicable the trial court properly entered judgment for defendant.

The judgment herein was based solely upon the pleadings. While substantially the same relief could have been obtained by a motion to dismiss, it has been held that a summary judgment may also be based upon the pleadings alone. See Civil Rule 74.04(c), V.A.M.R., and Dowdy v. Lincoln National Life Ins. Co., Mo.App., 384 S.W.2d 282 [3].

We have concluded that the ten-year statute does not apply in this case and therefore the trial court properly entered a judgment for defendant. It has long been the rule in this State that in order to bring an action upon any writing for the payment of money or property, “it must appear in the statement of the cause of action that the money or property sued for is promised to be paid or given by the language of the writing, and that such promise does not arise only upon proof of extrinsic facts.” Parker-Washington Co. v. Dennison, 267 Mo. 199, 183 S.W. 1041, 1042. And “that promise or obligation must arise from the language and fair implication of the writing. The promise may not be shown by extrinsic evidence or consist of an obligation imposed by law from the facts of the transaction.” Martin v. Potashnick, 358 Mo. 833, 217 S.W.2d 379, 381. In the case under review there is no allegation that defendant promised or agreed in the contract to reimburse plaintiff for money paid in settlement of damage claims asserted by adjoining property owners. Defendant did agree to pay plaintiff a specified sum for labor and materials furnished in constructing the portion of the highway here involved but that is not the item for which recovery is sought.

As a further indication that plaintiff did not seek payment of any sum defendant agreed to pay in the contract, we note that plaintiff alleged in its reply that “its cause of action is not a claim under the contract, but is a suit for the breach of said contract.” The cases hold, however, that an action for breach of contract is not an action upon a writing for the payment of money within the ten-year statute and is accordingly governed by the five-year statute. Parker-Washington Co. v. Dennison, supra; McIntyre v. Kansas City, 237 Mo.App. 1178, 171 S.W.2d 805. In McIntyre the plaintiff was an architect. He entered into a written contract with defendant whereby he agreed to prepare plans for and supervise construction of a viaduct. Defendant agreed to pay him 5% of the cost of the viaduct for his services. Plaintiff prepared the plans but defendant never constructed the viaduct. He sued for damages for breach of contract. In reversing a judgment obtained by plaintiff the court stated that “the pleading, the contract and the evidence in this case give plaintiff’s action the character of a suit for damages for a breach of the contract. It is not based upon an absolute and fixed liability of defendant evidenced by a writing to pay money, and the five-year statute of limitation applies.” 171 S.W.2d 811.

Plaintiff contends that the court erred in entering a summary judgment because the pleadings presented a factual issue “with respect to whether or not the contract is one for the payment of money.” That contention is without merit. As we have indicated there is no question but that the contract provides for the payment of money by defendant to plaintiff but there is no contention that defendant agreed therein to pay any item such as that claimed in plaintiff’s petition.

In support of its contention that the ten-year statute is applicable plaintiff has cited South Side Realty Co. v. Hamblin, Mo.App., 387 S.W.2d 224, Brown v. Irving, Mo.App., 269 S.W. 686, Martin v. Potash-nick, supra, Lorberg v. Jaynes, Mo.App., 298 S.W. 1059, and Babler v. Rhea, Mo. App., 202 S.W. 604. All of those cases state the rules we have heretofore quoted. The factual situations are, of course, different from that in the case at bar. We have carefully examined those cases and do not find that any of them support plaintiff’s contention.

The judgment is affirmed.

HENLEY, P. J., SEILER, J., and STORCKMAN, Alt. J., concur.

      I. All statutory references are to RSMo 1959, V.A.M.S.


author: SPERRY, Commissioner.

text:
    Jesse MORA, Jr., d/b/a Mora’s Cocktail Lounge, .Plaintiff-Respondent, v. C. T. HASTINGS, Director of Liquor Control, Defendant-Appellant.
    No. 24493.
    Kansas City Court of Appeals. Missouri.
    June 5, 1967.

      Herbert C. Hoffman, City Counsellor, Rex G. Bostwick, Kansas City, for appellant.
    James Lenge, Kansas City, for respondent.
   SPERRY, Commissioner.

This is an appeal by C. T. Hastings, Director of Liquor Control of Kansas City, Mo., from a judgment of the circuit court of Jackson County on a Petition for Judicial Review of an order entered by the Liquor Control Board of Review of Kansas City, Mo., sustaining the action of defendant in denying plaintiff’s application for renewal of his license and permit to sell alcoholic beverages at his cocktail lounge, located at 910 Southwest Boulevard, Kansas City, Mo., and assessing costs against applicant. The court ordered that such license and permit be issued, denying defendant’s motion to dismiss the petition and refused to assess costs against defendant.

Defendant alone has filed a brief. He stated therein that he issued plaintiff a license to sell intoxicating liquor at his place of business; that it became effective June 18, 1964; that plaintiff began operating under it; that Mr. Hastings thereafter learned of the existence of a church located within 300 feet of plaintiff’s premises; that he then notified plaintiff that he would not renew the license for 1965, when it expired; that plaintiff applied for renewal of the license for 1965 and his application was denied; that plaintiff appealed to the Liquor Control Board of Review of Kansas City; that, after a hearing, the board sustained defendant’s decision and action; that plaintiff then petitioned the circuit court of Jackson County for a review of those proceedings; that the court found that defendant was “equitably estopped” from denying plaintiff a license for the reason that such denial would be a manifest injustice to plaintiff under the facts shown at the hearing before the board.

Defendant, in circuit court, filed a motion to dismiss the petition “for the reason that said defendant conducted no hearing, and made no order, but that the hearing and order, that is the subject of this suit, was held or made by others not named as parties to this suit”. This motion was denied. Defendant cites Cunningham v. Leimkuehler, Mo.App., 276 S.W.2d 633. That case was a review by certiorari to the circuit court from an order and award of the St. Louis Board of Adjustment (zoning). The board appealed. Respondent filed motion to dismiss on the grounds that the board was not an aggrieved party and, therefore, had no right to appeal. The Court of Appeals denied the motion holding that the board was an aggrieved party and was entitled to appeal the judgment.

In overruling the motion to dismiss in this case, the court stated that, while Director Hastings was designated as defendant, and summons was issued and served on him, it was unnecessary that summons be issued and served on anyone, only that the interested parties be given notice of this action. (All citations of statutes, unless otherwise noted, refer to RSMo 1959 and V. A.M.S.). Section 536.110 provides for the filing of a petition for review in actions of this kind, and states that no summons shall issue, that it is sufficient that copies of the petition be delivered -to the agency and to each party of record, or to his attorney of record. In the hearing before the board, the board’s attorney of record, or the attorney of record of Director Hastings, was assistant Kansas City Counsellor, Schad, who also appeared in that capacity at the hearing on the petition for review in circuit court. Such appearances indicate that interested parties had notice as contemplated by the statute. The trial judge noted these facts and held that the motion is without merit. (Appellant here is represented by the office of the Kansas City Counsellor). In State ex rel. Bruno v. Johnson, Mo.App., 270 S.W.2d 99, a writ of certiorari was directed to the Director of Liquor Control. We approve the ruling of the trial court on this question.

The entire transcript of the record made ' at the hearing before the board was before the trial court, and it is also before us. No additional evidence was heard in circuit court.

Section 536.140 prescribes the scope of review. Par. 2 thereof provides that the inquiry may extend to a determination of whether the action of the agency is in violation of constitutional provisions; is in excess of the statutory authority or jurisdiction of the agency; is unsupported by competent and substantial evidence upon the whole record; is, for any other reason, unauthorized by law; is made upon unlawful procedure or without a fair trial; is arbitrary or capricious; involves an abuse of discretion; that in determining the evidence the court shall give due weight to the opportunity of the agency to observe the witnesses, and the court shall not substitute its discretion for the discretion legally vested in the agency.

The court is authorized to determine whether the board could have reasonably found as it did, but may not set aside its findings unless clearly contrary to the overwhelming weight of the evidence; the court may not substitute its judgment on the evidence for that of the board. Division of Employment Security v. Industrial Commission, Mo.App., 242 S.W.2d 593, 597.

In State ex rel. Bruno v. Johnson, supra, 270 S.W.2d 103, we held that in certiorari proceedings to review the action of the Director of Liquor Control, the court’s power was either to quash its writ or quash the decision of the Director of Liquor Control.

Sec. 4.110(d), Revised Ordinances of Kansas City, provides that “no permit of any kind or character shall be issued at any location when said location is within 300' feet of a school, church, or any other place regularly used for religious worship, unless-such applicant shall present with his application to said Director of Liquor Control the written consent, verified before a notary public, of the majority of the board of directors of such church or school consenting to the location of the applicant’s place of business except as hereinafter provided; * * The above provision was not complied with, nor does plaintiff claim to-come within the exceptions enumerated.

Rev. Garza testified to the effect that he was pastor of the Mexican Assembly of God Church; that plaintiff’s cocktail lounge is within 100 feet of the church; that the church had been so located for a period of more than twenty years; that it has been continuously open and holding religious-services regularly; that he became pastor of the church June 12, 1964; that he resides-in rooms over the church and can clearly seethe entrances to the bar therefrom; that the church board has refused to consent to-the licensing of the bar; that he made complaint to the office of Liquor Control concerning fighting and disturbances occurring in front of the church, on church property, and disturbances by drunks within the church, caused by patrons of this bar; that he saw three fights in front of the church; that he saw persons who came from the bar break bottles against the door of the church; that he saw minors drink beer outside of the cocktail lounge, that the beer was furnished by adult customers of the bar; that he saw patrons of the bar place broken glass bottles. ⅛,⅛⅝ church mail box; that such disturbances occur on nights during the week, not on Sunday; that the largest congregation is on Friday night during young people’s services. He stated that he first became connected with the church in 1962, and returned as pastor June 12, 1964; that he contacted the City Liquor Control department June 15, to get information concerning the tavern; that there was a disturbance at the church June 13, 1964; that three girls and a man had a struggle in front of the church and broke a bottle against the door; that he saw them come out of the lounge.

Mr. Carrillo stated that he first attended the church in 1940 and that it had been located at that location, open and regularly used for church services continuously, from that time until the date of the hearing.

Mr. Hastings, Director of Liquor Control, testified that records showed a liquor license issued to the Spanish Tavern, at this location; that it operated from 1946 through 1954; that American Legion Post 473 transferred its license to this location after the previous licensee had abandoned operation; that this licensee operated from November 30, 1955, until it abandoned operations April, 1963; that plaintiff applied for license November 26, 1963; that all applicants prior to plaintiff had stated, on application forms, that no church or school was located within 300 feet of the tavern; that plaintiff answered this question by stating that the building was then being used as a tavern by American Legion Post 473, which was going to move; that plaintiff told him when he applied for license that his contemplated purchase of the building was conditional on his receiving a license; that witness then did not know of the location of a church within 300 feet of the tavern site; that he took the application ■under advisement because plaintiff had previously been licensed to sell liquor and his permit had been revoked, (later restored) by a previous director; that he made an inspection of the area but did not learn that this store front building was a church; that, on February 20, 1964, he determined to issue the license, and so notified plaintiff; that, after clearance by the police department, the license was ready for delivery in April but was not paid for and delivered until June 18, 1964; that, thereafter, he learned of the location of the church and of complaints and disturbances; that he notified plaintiff that the license would not be renewed. He stated that, if he had known there was a church at the location occupied by it, he would not have issued a license to plaintiff because of his previous record in the liquor business.

Plaintiff’s evidence established that he conditioned his contract to purchase the real estate on securing a liquor license and would not otherwise have purchased; that he had expended in excess of $15,000.00 on the property and improvements to it, some of it borrowed.

It is true that plaintiff has suffered a hardship but it is partly due to his own failure to report his knowledge of the existence of a church within 300 feet of the location at which he chose to operate a tavern. Under the facts and circumstances in evidence his conduct was not shown to be fraudulently intended, but his failure to state this fact contributed to bring about this situation. The Director withheld the acceptance of the application from November 26, 1963 until February 20, 1964, when he advised plaintiff that he would accept it. Mr. Hastings stated that plaintiff could have appealed to the board his failure to accept the renewal application, at any time after December 26, 1964, which was before the prior license expired. The location, as a tavern, was abandoned in April, 1963, months before the application by plaintiff was tendered. The Director’s files, all of which were in evidence, indicated that all applicants for license, prior to plaintiff, had stated that there was no church or school within 300 feet of the property; and plaintiff merely stated that a bar was licensed at this location.

We hold that plaintiff has no legal right to compel the renewal of his license by order of the court. To order issuance of this license would be for the court to order the Director to act against the admonition of the governing ordinance.

In the circuit court plaintiff relied on the doctrine of equitable estoppel. The court rested its judgment on that theory, in a memorandum opinion in which the following cases were cited: City of Mountain View v. Farmers’ Telephone Exchange, 224 S.W. 155 (same case on certification to Supreme court, 294 Mo. 623, 243 S.W. 153); Peterson v. Kansas City, 324 Mo. 454, 23 S.W.2d 1045, 1048; School District No. 45 of Pemiscot County v. Correll, 220 Mo.App. 322, 286 S.W. 136, 139. Equitable estoppel may be applied against municipal corporations or their officers in matters pertaining to their governmental functions. However, in applying it, much caution is to be and should be observed. City of Mountain View v. Farmers’ Telephone Exchange, 224 S.W. l.c. 157. “The rule is, that no one can be estopped by an act that is illegal and void, and an estoppel can only operate in favor of a party in a case iwhen there is no provision of law forbidding the party against whom the estoppel is to operate from doing the act which is sought to be carried out through its operation”. (Emphasis ours.) Himmell v. Leimkuehler, Mo.App., 329 S.W.2d 264, 271. Under the facts shown in this case the doctrine of equitable estoppel should not be applied.

The judgment is reversed and the cause is remanded with directions to enter a judgment affirming the order of the Liquor Control Board of Kansas City, Mo., sustaining the action of the Director of Liquor Control in refusing to renew the permit to sell alcoholic beverages at retail by the drink at 910 Southwest Boulevard, Kansas City, Mo.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C, is adopted as the opinion of the court. All concur.