221 Ga. 229 (1965)
144 S.E.2d 96
BROOKS et al.
v.
HOOKS et al.
23001.
Supreme Court of Georgia.
Argued June 14, 1965.
Decided July 14, 1965.
Rehearing Denied July 29, 1965.
*230 Spivey & Carlton, Milton A. Carlton, John J. Spivey, for plaintiff in error.
Rountree & Rountree, W. E. Rountree, contra.
GRICE, Justice.
This is a controversy over financing the purchase and feeding of chickens for egg production.
It took the form of litigation when a petition was filed in the Superior Court of Emanuel County by Donald J. Hooks and others, trading as the Farmers Feed & Pelleting Company (hereinafter referred to as the plaintiff company), against Ralph M. Brooks, Master Feed and Grain Company, Inc. (hereinafter designated as the Grain Company), and McMillen Feeder Finance Corporation (hereinafter denominated as the Finance Company). The petition sought cancellation of two chattel mortgages and notes, injunction against their transfer or enforcement, damages, and general relief. Upon the overruling of general and special demurrers of the defendants, the trial court, by agreement of the parties, considered the verified petition and answers as evidence and temporarily enjoined the defendants from transferring the mortgages and notes and from attempting to enforce their collection. None of the special demurrers raised any issue as to duplicity.
Error is assigned upon the overruling of the demurrers and the grant of the injunction.
The petition, insofar as material here, made the allegations which follow.
The plaintiffs are engaged in selling feed and other such products.
The defendant Brooks is an agent of the defendants Grain Company and Finance Company. The Grain Company is an agent of the Finance Company.
*231 In late 1962 or early 1963 Brooks requested that the plaintiff company act as dealer for the Grain Company and the Finance Company's chicken feed, in accordance with a plan, already in effect with others, substantially as follows.
Brooks would find farmers with facilities to feed and care for laying chickens and would outline to them a plan whereby a dealer would furnish financing for putting chickens in the houses and feeding them until they began production. The farmer would execute to the dealer a chattel mortgage on the chickens and a note. When production began the dealer would receive 80% of the egg proceeds until the chickens and the feed were paid for, and after such payment all of the proceeds would go to the farmer.
As between the dealer and the defendants, the plan was that, when Brooks found farmers who agreed to go into the transaction, he would obtain a financial statement from them and submit it to the Finance Company. If the latter approved the farmer's credit, Brooks would prepare an open-end chattel mortgage and note for a specified amount per chicken and have it executed by the farmer. The note and mortgage would then be transferred by the dealer to the Finance Company which would, upon receipt of them and an invoice showing that the chickens had been delivered to the farmer, send the dealer the proceeds for the note. These proceeds were actually payment for the chickens and some of the feed. Payments on the note would be scheduled so that the Finance Company would be repaid from the first eight months of egg production. The Grain Company would furnish to the dealer, on a 30 day account basis, the concentrate to be used in the feed sold to the farmer. If the farmer was still indebted to the dealer after the dealer paid the note to the Finance Company, it would transfer the note and mortgage back to the dealer. Under this program the dealer was never to own the chickens involved.
After studying this program and discussing it at length with Brooks, the plaintiffs decided to undertake it. A number of farmers agreed to participate, some of whom were accepted by the Finance Company and some were turned down. Notes and mortgages as previously outlined were prepared for those accepted; *232 however, Brooks insisted that plaintiffs sign the notes and mortgages as well as the assignment and endorsement of them to the Finance Company. All of those contracts have now been paid out.
In early March 1963, Brooks advised Hooks, one of the plaintiffs, that the contracts of J. L. Cowart and E. L. Campbell had been approved and asked Hooks to sign their chattel mortgages and notes, although they had not been filled out. Hooks, having confidence in Brooks and expecting him to fill out and process these as before, signed the blank chattel mortgages and notes and turned them over to Brooks for him to complete as he had the previous ones. Soon afterward the chickens were delivered to Cowart and Campbell and the plaintiff company began furnishing feed as they had in other contracts.
In June 1963, Hooks told Brooks that the plaintiffs needed additional financing. A few days later Brooks reported to Hooks that the Finance Company had approved additional financing on the Cowart and Campbell contracts and again asked Hooks to sign blank mortgages and notes, stating that he would get them finished and turn them in to the Finance Company. Several days later plaintiffs received specified amounts on the Cowart and the Campbell chickens, and plaintiffs assumed that Brooks had processed these mortgages and notes as he had indicated and that Cowart and Campbell had signed as principals.
In late July 1963, plaintiff company received a notice from the Finance Company outlining payments due on the Cowart and Campbell contracts and noticed that the farmer listed was the plaintiff company and the dealer was the Grain Company. This was the plaintiffs' first indication of trouble with the Cowart and Campbell contracts. Hooks immediately contacted Brooks and called this situation to his attention. Brooks stated that there was nothing to worry about, that it was merely some sort of mixup in the Finance Company's office and he would see that it was straightened out.
In August the Cowart and Campbell chickens went into production and the plaintiffs began making the payments called for under the contracts.
In early 1964 the plaintiff company found for the first time *233 that the chattel mortgages and notes on the Cowart and Campbell contracts had been made out by Brooks from the plaintiff company to the Grain Company, and had been transferred by the latter to the Finance Company. Plaintiffs later learned that the invoices for the chickens had been altered by Brooks to show that the plaintiff company had purchased the chickens and that its name had been forged on the invoices showing their delivery. Brooks admitted these alterations and forgeries.
As soon as the plaintiff company learned of this situation, the Finance Company's credit manager, Hooks and Brooks went to the Cowart farm to discuss this situation with him. There, Cowart's father stated that after Hooks' and Brooks' original talk with Cowart, Brooks had returned alone; that on such later occasion Brooks told Cowart that "they" were now in position to offer another program whereby the farmer would receive 20% of the egg proceeds for caring for the chickens and collecting and processing the eggs; that the farmer would not be liable in any way for the chickens or the feed therefor; and that this was the understanding that Cowart had with Brooks as to his contract.
At the time of the foregoing conversation plaintiffs had a larger investment in the Cowart chickens than did the Finance Company since they had been furnishing the feed and had been turning over most of the egg proceeds to the Finance Company, believing that it held a note signed by Cowart as farmer. Thereafter, however, the plaintiff company credited all the egg proceeds to its own account for the Cowart chickens' feed.
The same situation was experienced as to the Campbell chickens.
The plaintiff company kept insisting to Brooks and the Finance Company's credit manager that some explanation be given for the way these two contracts were handled since it was contrary to their understanding. But no reasonable explanation was ever given.
The chickens under these two contracts continued to produce, but little more than the current feed bill. Finally, in August, it was agreed by Hooks, the Finance Company's credit manager, Brooks and another person of the defendant group that the Cowart *234 art and Campbell chickens be sold and the contracts paid out. They were sold, but it took all of the proceeds from the Campbell chickens and most of those from the Cowart chickens to pay the Campbell contract. The balance was applied to the Cowart feed indebtedness to the plaintiff company, leaving a balance of $8,483.39 due it on feed delivered to the Cowart chickens.
The defendants have defrauded and deceived the plaintiff company, have made misrepresentations of material facts wilfully to deceive it, have suppressed material facts which were known to the defendants and which they were under an obligation to communicate to the plaintiff company, have altered and forged instruments in connection with their dealings with it, all as hereinbefore fully set forth, and as a result of said actions, the plaintiff company has been damaged in the full amount of the actual loss sustained by it, $8,483.39.
The defendants have denied that they are indebted to the plaintiff company in any amount and the Finance Company is now calling upon the plaintiff company to pay the balance due on the notes represented by the Cowart contract, which amount they contend to be $15,210.25.
The mortgages and notes in connection with the Cowart contract, as finally filled out by Brooks, are in the defendants' possession and their production upon the hearing in this case is called for.
Such notes are null and void and unenforceable because of the facts surrounding their execution, as hereinbefore alleged.
The prayers of the petition included recovery of $8,483.39 as actual damages sustained; cancellation of the chattel mortgages and notes in connection with the Cowart contract; temporary and permanent injunction against transferring or attempting to enforce the notes or chattel mortgages; and general relief.
Besides general and special demurrers, each defendant filed an answer denying the material allegations of the petition. The recount of events in these answers was diametrically opposed to that of the petition. Each answer denied any fraud whatever and averred that the plaintiffs, not Campbell or Cowart, were primarily liable on the contracts and were liable for the unpaid balance. In the view which we take of the case it is not necessary to make further reference to the answers.
*235 1. While the defendants urge several principles in support of their general demurrers, we need deal with only the one which follows. "Where a party who is entitled to rescind a contract on ground of fraud or false representations, and who has full knowledge of the material circumstances of the case, freely and advisedly does anything which amounts to a recognition of the transaction, or acts in a manner inconsistent with a repudiation of the contract, such conduct amounts to acquiescence, and, though originally impeachable, the contract becomes unimpeachable in equity. If a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it. Otherwise he cannot avoid or rescind such contract." Gibson v. Alford, 161 Ga. 672 (5) (132 SE 442). See also Manning v. Wills, 193 Ga. 82 (3), 90 (17 SE2d 261).
The picture made by the petition is certainly not a pretty one. But, assuming that conduct amounting to fraud appears, repudiation of it is conspicuously absent. There is no allegation that after discovery of the conduct they charge to be fraudulent, the plaintiffs ever repudiated it. On the contrary, the allegations show acts of the plaintiffs which are inconsistent with repudiation.
First, in July 1963, the notice from the Finance Company outlining payments due on the Cowart and Campbell contracts listed the plaintiff company, instead of Cowart and Campbell, as the farmer and showed the Grain Company, rather than the plaintiff company, as the dealer. The plaintiffs were content with assurance from Brooks, upon whom they had no right to rely, that this was due to a "mixup" in the Finance Company office and that he would get it straightened out, and they started making the payments called for under the contracts. This state of affairs continued for at least six months.
Then, in early 1964, plaintiffs learned as a positive fact that the chattel mortgages and notes on the two contracts had been made out from the plaintiff company to the Grain Company, instead of from Cowart and Campbell to the plaintiff company, and that Brooks had altered the invoices to show that the plaintiff company, not Cowart and Campbell, had purchased the chickens and also had forged the plaintiff company's name *236 thereon to show delivery to it. Consequently, plaintiffs then knew that both of these contracts had been handled by Brooks in a manner different from the plan outlined to the plaintiffs. But, instead of repudiating the transactions and having no further part in them, plaintiffs merely "kept insisting that some explanation be given" for the way these two contracts were being handled. They were given no reasonable explanation but took no repudiatory action.
Finally, in August 1964, it was agreed by the plaintiff Hooks, the defendant Brooks, and the defendants' credit manager that the Cowart and Campbell chickens be sold and the proceeds applied toward paying out the Campbell contract, and this was done. This action by the plaintiffs was inconsistent with repudiation. It evidenced that the plaintiffs recognized their liability to the defendants under the chattel mortgages and notes which they now seek to have canceled on the ground of fraud.
The allegations of this petition call for application of the rule requiring repudiation as stated in the Alford case, 161 Ga. 672, supra.
(a) There being no repudiation of the conduct charged as fraudulent, the petition fails to allege a cause of action for cancellation, injunction or any other equitable relief.
(b) Under the facts alleged, discussed above, the petition does not set forth a cause of action for damages representing the unpaid feed balance on the Cowart contract. Whether or not the plaintiffs' failure to take any repudiatory action upon learning of the defendants' fraudulent conduct constituted a waiver of that fraud so as to bar their right to damages, certainly their subsequent active participation in the selling of the chickens was such a waiver. "If the defrauded party, with knowledge of the fraud, does an act in ratifying or affirming the contract which shows his intention to abide by the contract as made, with the fraud in it, and thus waives the fraud, he can not afterwards set up the fraud and recover damages therefor." Tuttle v. Stovall, 134 Ga. 325, 329 (67 SE 806, 20 AC 168).
2. Since the petition did not set forth a cause of action for any of the relief sought, it afforded no basis for the interlocutory injunction.
Judgment reversed. All the Justices concur.


99 N.W.2d 254 (1959)
169 Neb. 280
Burdette S. JOHNSEN, Appellant,
v.
Harry A. TAYLOR, Appellee.
No. 34583.
Supreme Court of Nebraska.
November 20, 1959.
*256 Nate C. Holman, Chambers, Holland, Dudgeon & Hastings, Lincoln, for appellant.
Cline, Williams, Wright & Johnson, Lincoln, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.
*257 BOSLAUGH, Justice.
Appellant seeks damages for an injury which he claims he sustained by the collision of an automobile owned and operated by him and an automobile owned and operated by appellee, the proximate cause of which he asserts was the negligence of appellee.
The occurrence which caused this litigation was described by appellant at the trial in this manner: He was traveling west on the outside or north lane of O Street between Eleventh and Tenth Streets in Lincoln in his automobile, a 1951 Imperial Chrysler, about 11 o'clock in the forenoon of April 3, 1956, at a speed of from 20 to 25 miles per hour. Appellee was operating his automobile at that time and place, traveling west in the lane immediately north of the center line of O Street about 18 or 24 feet ahead of and to the left of appellant. The automobiles were traveling at about the same speed and when they had reached about the center of the block appellee turned his automobile to the right into and across the north lane in front of appellant. Appellant applied the brakes of his automobile when he saw appellee turn to the north but appellant could not stop and he said he had to hit the automobile of appellee. Appellee was headed north and west about halfway into a parking stall on the north side of O Street at the time the automobiles made contact. Appellant did not get out of his automobile at the place of the collision but he estimated he slid his wheels 6 or 8 feet. The left part of the front bumper of the automobile of appellant struck the right rear corner or end of the bumper of the automobile of appellee. The bumpers did not completely meet and the one on the automobile of appellant went over the bumper on the automobile of appellee and reached its right rear fender. Appellant was forced up over the steering wheel of his automobile. He was shaken and the front of him was "punched," he said. He then thought he had sustained no injury. Appellee got out of his automobile, looked at its rear, asked appellant if he was all right, and appellant said he was. Appellant backed up his automobile to let appellee back from the parking into the north lane and proceed to the west on O Street which he did to Tenth Street. The glass in one of appellant's directional lights was cracked, the fender and bumper were marred, and the horn on his automobile did not sound after the collision. Appellant remained in his automobile at the scene of the collision and he drove it from there to Ninth Street and to the Annex Garage.
A motorist who was traveling west on the inside lane of O Street at about the time and place of the accident involved in this case testified that appellant at that time was traveling in the outside lane of the street. The witness saw a car preceding him turn from the inside lane to the right into and across the outside lane and into a parking spot. He did not clearly see what was going on but he heard a screeching noise and saw dust in the air which he believed was from under automobile fenders caused by an abrupt stop. The witness did not stop but while he was proceeding west he saw the automobile of the motorist who had turned to the right and the automobile of appellant come together. He said he did not know anyone was injured; the collision did not look that serious to him.
Appellee, a physician in Lincoln for more than 40 years, while a witness related in substance the following concerning the accident: He was in the outside lane going west on O Street on which there were diagonal parking stalls. He turned his automobile to the right immediately east of the alley in the block north of O Street and between Tenth and Eleventh Streets. The rear lights of his automobile were operating, warning that he was decreasing his speed and was going to stop. He gave no signal for a right-hand turn. He applied the brakes to retard the speed of his automobile and immediately he felt a slight impact on his rear bumper. The participants in the collision examined the automobiles *258 for possible damage. They found none. Appellant stated that he was not injured and he gave no indications of injury. He walked toward and to appellee after the collision and following their conversation he walked naturally away from where they had been standing. Appellee said the impact of the automobiles was very slight. It did not jar or affect him in any way and there was no damage to his automobile.
Appellant testified that when he stepped out of his automobile at the Annex Garage, where he drove after the collision, he about collapsed. However, he walked from there to his place of business, a distance of three-fourths of a block, where he remained for an undisclosed period of time. He told his employees he was hurt. He did not claim that he made a more definite statement on that subject. He then went to the police station, made a report of the collision, and thereafter went to his home. He considered the collision a minor accident with no injuries involved until he was in the Annex Garage and alighted from his automobile. When he was asked what made him think he had been injured he said it was pain in his lower back and right leg in the same area in which he had suffered pain as early as the year 1954. He first said he also had a movement of his head "back and forth like such (indicating)" after he got to his place of business and sat down there but this was not true in the Annex Garage. Later he said he noticed the described movement of his head at the garage. The pain and the movement of his head which he described were the only things he experienced which caused him to believe he had been injured in the collision of the automobiles. In a deposition of appellant taken a considerable period before the trial of the case he testified that he told appellee at the scene of the accident that he, appellant, thought he was badly hurt. He also testified that the only unusual thing that appellant experienced when he was in the Annex Garage and got on his feet was that he developed a terrific pain in his stomach which continued for several days. When appellant reached his home on the day of the accident he went to bed and remained there until the following morning. The pain in the lower back area was more severe and in the afternoon of that day he consulted Dr. J. E. M. Thomson at his office. He examined appellant and gave him medical management, tablets for discomfort, and a local anesthetic injection into his back, and applied strapping to his back.
Appellant had been afflicted with a low back pain from somewhere in the winter months of 1953 and 1954. It came on gradually, became more severe, and by February 1956, the pain had extended to and radiated into his right leg. The lower back pain reached such severity that appellant developed numbness in the leg. He had the experience of attempting to get out of bed in the morning and being unable to stand. Appellant consulted Dr. Ferciot, an orthopedist of Lincoln and a senior consulting orthopedist at the Veterans Administration Hospitals in Lincoln and Grand Island, on March 1 and March 4, 1954, concerning soreness and stiffness in his lower back and soreness in his legs. On March 1, 1954, X-rays were made and the examination of appellant was completed on March 4, 1954. The diagnosis was a weakness of the lumbosacral part of his back with what is known as spondylothesis, which is an incomplete fusion of one of the side processes of the fifth lumbar vertebra. Both processes in this instance were a peculiarity formation in which the pedicle had failed to unite to the vertebral body. The doctor testified that it was an accepted conclusion that spondylothesis is either a peculiarity of congenital origin or results from something that happens very early in life.
The doctor next saw appellant professionally February 6, 1956. He was then complaining of persistent low backache with considerable discomfort on his right side. He complained bitterly that his condition was bothering him and interfering with his ability to perform his work. An *259 examination was had of appellant with the aid of X-ray rechecks then made which were compared with the films made in 1954. There was very slight change in position except that there was evidence of first degree spondylolisthesis with some early shift of the bony structures and chronic strain. Spondylolisthesis was defined by the witness as the slipping of one vertebra forward on another occasioned by lack of bony stability. The doctor recommended further study of the condition and appellant entered the Veterans Hospital at Lincoln. During his hospitalization the status of Dr. Ferciot was that of a consultant for the hospital and not as the direct physician of the appellant. There was an operation performed on the back of appellant at that hospital by doctors other than Dr. Ferciot on March 14, 1956. The operation was a laminectomy or decompression operation sometimes referred to as removal of the neural arch or as an unroofing procedure. Its purpose was to relieve pressure on the structure in the lower back by removing the loose portion of bone and any fibrous tissue which overlay the roots of the spinal cord at the lumbar sacral level. The appellant had a loose neural arch at the bottom of the spine and this was a factor considered by the doctor in making a diagnosis of spondylolisthesis. The instability of the joints predisposed or made more probable strain to the ligaments and pressure on the nerves. There are different permissible procedures for attempting to correct the condition from which appellant was suffering such as the operation which was accomplished, fusion, or both such operations. There are uncertainties concerning the result of any of these. The simplest of them from the standpoint of the patient is the one which was performed because of the shorter period of convalescence; and if the desired result is not obtained, a fusion operation is available and is sometimes necessary to eliminate the pain suffered by the patient. That was true in the instance of appellant. He had a laminectomy and two fusion operations before he secured relief from his affliction. If conservative treatment in such a condition does not bring relief to the patient, the most desirable procedure from the standpoint of the physician is generally the fusion operation.
Dr. Ferciot was consulted again by appellant on April 5, 1956, the second day after the accident. Appellant told the doctor that he applied the brakes on his automobile suddenly and that he had a severe jolting injury. The doctor said that the operative scar of appellant was not essentially different than he would expect to find after that recent an operation (March 14, 1956). There was some puffiness of the upper part of the incision and complaint of tenderness but that, said the doctor, was a common finding at that stage and may often be seen as there is often local swelling and tenderness and sometimes discoloration following an operation of the type appellant had. There was a deep approach to the spine and considerable tenderness could be expected so soon after such an operation. The doctor would only say the accident may have been an aggravating factor in the condition of appellant if, as he stated, he sustained a severe jolting injury and if there was an onset of symptoms following that, but the doctor also said that the symptoms of appellant following the accident may have been normal manifestations which follow in other cases where no accident is involved and where it is necessary to subsequently have fusion procedure following a decompression operation and that could have been the case with appellant. The X-rays taken on April 4, 1956, the day following the accident, were compared with the films made February 6, 1956, and no evidence was found of change except that the lamina had been removed at the fifth lumbar vertebral level. The spondylothesis of appellant was the same after the accident as it was before except the neural arch had been removed in the operation of March 14, 1956. The statement in the notes made by the doctor that considering the history furnished, it would appear the *260 soreness in the low back was made worse following the accident reported was based upon the statement of appellant that he suffered a severe jolting injury in the accident. In any event the doctor concluded and testified that he knew of no way in which one could evaluate the degree of aggravation which any injury of the accident could have caused.
Dr. Getscher, an orthopedist of Lincoln, first saw appellant April 4, 1958, 2 years and 1 day after the date of the accident and more than 2 years after the first operation performed on the back of appellant. It was then that he first consulted Dr. Getscher professionally. The doctor was told by appellant that in the winter months of 1953 and 1954 he had pain in his low back and it became more severe for which he had conservative treatment but the pain continued and in February of 1956 the pain had extended into his right leg to the degree that it developed numbness in the leg and that he experienced such a condition that on an occasion when he was attempting to get out of bed he was unable to stand. He was hospitalized February 28, 1956, and in March of that year the operation occurred in which the arch of the fifth lumbar vertebra was removed. Appellant gave the doctor a history of the accident of April 3, 1956, and in that connection he said he was thrown upward and forward over the steering wheel and had immediate pain in the lower back which radiated up the back and into his neck. He was able to get out of his automobile and walk around but when he put weight on the right leg there was a severe, sharp, shooting pain which extended from the lower back down into the leg. On August 6, 1956, a spinal fusion operation was done. It did not accomplish what was intended and appellant experienced no relief from the persistent severe pain in his back and leg. Dr. Getscher advised a reoperation on the lower back and a regrafting of the area to provide solidity and stability therein. The doctor found that appellant had a spondylothesis which had probably developed as he grew from birth. This condition antedated the accident of April 3, 1956, mentioned in the history given by appellant. The second fusion operation was performed on the back of appellant by Dr. Getscher June 13, 1958.
Dr. Getscher, on the basis of assumptions expressed in a hypothetical question propounded to him, in opposition to proper objection, was permitted to and did express an opinion that there had been definite aggravation of the previous condition of appellant. The question on which the expressed opinion of the doctor was based included an assumption that appellant made a normal recovery from the laminectomy and an assumption that the accident caused the appellant to be thrown up forward and over the steering wheel at which time he noted immediate pain in the lower back. The doctor also stated his opinion, over proper objection, that sufficient damage to the area previously described in the lower back of appellant occurred from the accident in the form of tearing of ligaments and general strain to convert a nonpainful condition to a painful condition that persisted in spite of treatment that was given. The doctor testified that it was his opinion that appellant would have a restriction of function the rest of his life that would impair his ability to work of about 10 to 15 percent of the body as a whole but he also said that the estimated permanent disability of which he spoke resulted from all causes including the spondylothesis, the spondylolisthesis, and the surgical operations: "As a result of everything that has happened up until today * * *." He did not attempt to say what if any permanent disability was caused appellant by the accident of April 3, 1956. He testified that the opinion expressed by him necessarily took into consideration the history given him by appellant and the assumptions stated in the hypothetical question; that any variance by either of these from the actual facts would affect his opinion; and that if what was *261 told him or if what he was asked to assume was materially incorrect, his opinion could be different or would be changed.
The gist of the case pleaded by appellant was negligence by appellee proximately causing the collision of the automobiles of the parties, injury thereby inflicted upon appellant from which he was damaged, and the quantum thereof. The defenses interposed by appellee were substantially a traverse of the claims of appellant and a plea of his contributory negligence. The district court at the close of all the evidence, on motion of appellee, found that the evidence was insufficient to sustain a verdict that the negligence of appellee caused appellant injury and damages and that any finding of damages in favor of appellant would be based on conjecture and speculation. The trial court discharged the jury and dismissed the case. A motion for a new trial was denied and this appeal is from that action of the trial court.
The injury received by appellant in the collision, as related in his petition, is that he was thrown forward against the steering wheel of his automobile, resulting in great pain, tearing loose a wound of a surgical operation to his back from which he was recovering, and resulting in internal bleeding and injury. The evidence is conclusive that the surgical wound on the back of appellant was not disturbed or affected by the accident. The record is silent as to any internal bleeding of appellant at any time. Appellant presented his case at the trial substantially on the basis that the collision aggravated the condition of his back. The elements of the case of appellant were negligence of appellee, injury to appellant proximately caused thereby, the extent of the injury, and the damages resulting therefrom. The burden was on appellant to establish each of the elements by the weight of the evidence as a prerequisite of any recovery in the action. The burden on appellant was made difficult because of the congenital affliction he suffered and which was present long prior to and at the time of the accident. Appellant uniformly spoke of the pain and discomfort which he experienced as being in the area of his low back, where he had the defective fifth vertebra, and extending from there into his right leg.
In Borcherding v. Eklund, 156 Neb. 196, 55 N.W.2d 643, 650, this court said: "In an action of this type the burden is on the one seeking to recover to establish by a preponderance of the evidence that the other party is guilty of one or more of the alleged acts of negligence, that if found guilty thereof that such negligence was a proximate cause of the accident, and that damages were caused as a result together with the extent thereof. These are the issues and the court should properly instruct in regard thereto."
Restatements, Torts, § 912, p. 574, states: "A person to whom another has tortiously caused harm is entitled to compensatory damages therefor if, but only if, he establishes by proof the extent of such harm and the amount of money representing adequate compensation with such certainty as the nature of the tort and the circumstances permit." In Comment a appears the following: "Where a person seeks to recover damages for a particular harm which he claims has resulted to his person or to a tangible thing belonging to him, he has the burden of proving that the other has invaded a legally protected interest of his, that he has suffered such harm and that the act of the other was a legal cause of such harm. Thus where a person has been wounded by another and subsequently blood poisoning develops in any portion of his body, he has the burden of showing that it is more probable than not that the initial wrongful contact was a substantial factor in producing it. * * * In all of such cases the recovery of damages for a particular harm is dependent upon proof that such harm occurred as the result of the tortious conduct and normally the plaintiff can recover *262 damages therefor only by proving this with the same degree of certainty as that required in proving the existence of the cause of action." See, also, Wylie v. Czapla, 168 Neb. 646, 97 N.W.2d 255; 15 Am.Jur., Damages, § 329, p. 768.
The district court is required to refrain from submitting to a jury the matter of damages and to decide the case as a matter of law if the evidence of claimant fails to establish that he has sustained an injury or fails to establish the extent of the injury he claims was inflicted upon him so that a jury cannot determine damages except by indulging in speculation and conjecture. In Harper v. Young, 139 Neb. 624, 298 N.W. 342, 344, the plaintiff experienced an automobile accident. He, after a considerable period, returned to and pursued his employment. More than 9 months after the accident he was afflicted with a coronary occlusion of the heart. There was medical evidence that because of physical strain and worry the accident might have contributed to it; probably precipitated it; could have been the cause; the chain of events made it so appear; it might not have occurred otherwise; or it might happen to anyone in those years of life without having been in an accident. The court therein said: "The mere fact that a certain disease might consistently arise from the injury is insufficient to show that it was caused thereby. * * * There must be competent evidence, and a preponderance thereof, that plaintiff's heart condition was the probable and reasonable result of the accident and injuries. * * * Evidence that it was possibly the result is not sufficient. * * * `Where from the undisputed facts the court is able to see that the injury is remote and not the proximate result of defendant's acts, the question is properly decided as one of law.' 17 C.J. 1060. We have carefully read the evidence to determine the question, and conclude that the trial court properly excluded the matter of damages claimed by plaintiff because of the alleged coronary occlusion."
Wylie v. Czapla, supra [168 Neb. 646, 97 N.W.2d 263], states: "As stated in Oleck, Damages to Persons and Property, § 319, p. 739, citing authorities: `The party who claims pecuniary damages has the burden of proving both that they were the result of the wrong done by the other party, and their amount. * * * But ordinarily the claimant must prove his damages by presenting competent evidence which satisfies the applicable measure of damages, and from which the amount of the damages can be computed.'" See, also, Schneider v. Daily, 148 Neb. 413, 27 N.W. 2d 550. What is said above is in harmony with the doctrine that in each case before the evidence is submitted to the jury there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence but whether there is any evidence upon which the jury can find a verdict for the party producing it, upon whom the burden of proof is imposed. Christ v. Nelson, 167 Neb. 799, 95 N.W.2d 128. A mere scintilla of evidence is not enough to require the submission of an issue to the jury. It is the duty of a trial court to direct a verdict where the evidence is undisputed or where the evidence, though conflicting, is so conclusive that it is insufficient to sustain a verdict and judgment. Fairmont Creamery Co. v. Thompson, 139 Neb. 677, 298 N.W. 551; Edgar v. Omaha Public Power Dist., 166 Neb. 452, 89 N.W.2d 238.
The evidence of damages is required to be direct and certain. Proof that damage might or could have been caused or was probably caused by the accident is not sufficient to sustain a verdict for a claimant. Such evidence is not of the quality required to satisfy the burden of a claimant to establish by a preponderance of evidence an injury and the extent thereof.
Bitler v. Terri Lee, Inc., 163 Neb. 833, 81 N.W.2d 318, 319, declares: "Damages which are uncertain, conjectural, or speculative as to the existence, nature, or *263 proximate cause thereof are not the basis of a recovery." See, also, Harper v. Young, supra; Ricenbaw v. Kraus, 157 Neb. 723, 61 N.W.2d 350; O'Hara v. Frederickson Building Corp., 166 Neb. 206, 88 N.W.2d 643; Wylie v. Czapla, supra.
Welstead v. Ryan Const. Co., 160 Neb. 87, 69 N.W.2d 308, 309, states: "Damages for permanent injuries cannot be based upon mere speculation, probability, or uncertainty, but must be based upon competent evidence that permanent damages, clearly shown, are reasonably certain as a proximate result of the injury."
In Burkamp v. Roberts Sanitary Dairy, 117 Neb. 60, 219 N.W. 805, this court said: "An instruction is erroneous which tells the jury that, in fixing plaintiff's damages in a personal injury action, they may consider the pain and suffering which plaintiff `will probably suffer in the future'; only such pain and suffering as the evidence shows with reasonable certainty plaintiff will experience in the future may be considered by the jury." See, also, Borcherding v. Eklund, supra; Jacobsen v. Poland, 163 Neb. 590, 80 N.W.2d 891.
The problem of whether or not appellant was caused any injury by the accident of April 3, 1956, should be considered with his established previous condition. He had a congenital or early developmental condition of the low back known as spondylothesis and later spondylolisthesis which caused him pain and difficulty in the low back and legs and especially in his right leg, from early in 1954. He was in the Veterans Hospital about 4 weeks before the accident. A spinal fusion before the accident was recommended but the less severe surgical procedure of a laminectomy, a permissible one which sometimes furnishes good results, was decided on because of the shorter period of convalescence. It was performed less than 3 weeks before the accident. Appellant was then recovering from the operation which was normal because within that time some degree of residual soreness would be anticipated. Dr. Ferciot said it was a little more than 2½ weeks after surgery when the accident happened and the back of the patient was expected to be pretty sore. Appellant considered the collision of the automobiles a minor accident, without injury, until he afterwards alighted from his car at the Annex Garage. There was no physical or objective evidence or symptom of injury to appellant. The only mention of an immediate onset of pain in the back of appellant appears in the history which it is claimed he gave Dr. Getscher 2 years after the accident. The statement in the history that appellant was thrown over the steering wheel and that he had immediate pain in the lower back was self-serving and its admission was for the limited purpose of showing what the doctor relied upon in giving his conclusions and his testimony. It was not evidence of what was the fact and in any event it could not disprove the testimony of appellant that he experienced no pain until he got out of his automobile at the Annex Garage and that he then had pain in his back and leg in the same area where the pain originated in early 1954. The limited time which elapsed between the accident and the pain he said he experienced in the same area where it originated early in 1954 and persisted thereafter is the only fact which might indicate any connection between the accident and the pain at the garage but time element alone is not a valid basis for a finding of causal connection between the injury or disability and his accident.
In Hahl v. Heyne, 156 Neb. 599, 57 N.W. 2d 137, 139, the court said: "We do not think the plaintiff established that her left leg was paralyzed as a result of the fall. * * * There is no evidence of objective symptoms of an injury. In fact there is no evidence of any connection between the fall and the injuries sustained, other than the time element involved. The most that the medical testimony shows is that the accident possibly contributed to the injury, although it probably did not."
*264 It is said in Feagins v. Carver, 162 Neb. 116, 75 N.W.2d 379, 385: "This record is not convincing that plaintiff's right foot ever slipped, but assuming for purpose of argument only that it did, the evidence fails to establish any causal connection between such slip and plaintiff's claimed disability."
The circumstances of this case as recited in the foregoing were such that a solution of the problem whether or not there was causal connection between the physical condition of appellant and the accident was not within the competency of laymen but was a question with respect to which only a medical expert could form a judgment or express an intelligent opinion. Dr. Ferciot, an orthopedist of 25 years' experience, testified that he was told by appellant that he had a severe jolting injury in the accident and an onset of symptoms. The doctor was asked if it would be difficult to make a direct relationship of the accident and the subsequent fusion operation experienced by appellant and his answer was that the question posed a very difficult problem which he could not answer with any authority. He then added that from the history he obtained he would have to conclude that the accident "* * * may have been an aggravating factor." He said that was based upon a history that appellant experienced a severe jolting injury and an onset of symptoms. The witness also testified that the symptoms of appellant following the accident may have been a normal manifestation which followed in other cases where no accident is involved and where it is necessary to subsequently have a fusion procedure following a decompression operation and that that could have been the case with appellant. The doctor concluded and testified that he knew of no way in which one could evaluate the degree of aggravation which any injury of the accident could have caused. The record contains no evidence that appellant suffered a severe jolting injury in the accident, that any symptoms of injury were immediately manifested, or that any physical or objective symptoms of injury to appellant were found by either of the two doctors who examined him, one the day following the accident and the other the second day thereafter.
Dr. Getscher, an orthopedist, testified in answer to a hypothetical question that his opinion was that there had been by the accident definite aggravation caused to the previous condition of appellant as it was before the accident. The question assumed as a fact that at the time of the accident appellant experienced immediate pain in his lower back. The witness stated the opinion expressed by him was based upon the history given him and the assumptions of the question and any variance of actual fact from these would affect and could change his opinion. The history given the doctor by appellant included a statement that he had immediate pain in the lower back at the accident and that it radiated up the back and into the neck. The witness also stated his opinion that sufficient damage to the area described in the lower back of appellant occurred from the accident in the form of tearing of ligaments and general strain to convert a nonpainful condition to a painful condition that persisted in spite of given treatment.
The record yields no evidence that appellant experienced pain at the time of the accident as assumed in the hypothetical question or that any pain that then developed in the lower back radiated up the back and into the neck as stated in the history given the doctor on which he relied and based his opinion expressed in his answers. The hypothesis and history are contradicted by the repeated evidence of appellant that he experienced no pain and no indication of injury at the time of the accident and that the pain thereafter was in the same area of the back and in the leg where pain originated early in 1954. Likewise there is an entire absence from the record of any proof that there was at the time of the accident any tearing of ligaments at any place in the body of appellant or any general strain. The witness who assumed this did not see appellant *265 until more than 2 years after the accident. He made no mention in his findings of any such conditions and any assumption to that effect is directly contradicted by the testimony of appellant. He was examined by an orthopedist the day after the accident, by another orthopedist the second day thereafter, and by other doctors in the immediate months after the accident. Appellant was a patient at the Veterans Hospital at the time of the accient but was on leave granted by the hospital for the period of March 30 to April 6, 1956. He was seen by the physicians of the hospital staff on April 6, 1956, and they thought it was proper that he should go on leave again and another period of leave was granted him on April 6, 1956, the third day after the accident. It is not claimed that any of the doctors found evidence of torn ligaments, a general strain, or symptoms of any injury. The suggestion of these things exists only in assumption and as an afterthought. The doctrine is that the value of the opinion of an expert witness is dependent on and is no stronger than the facts on which it is predicated. The opinion is without probative force unless the assumptions on which it is based are shown to be correct. Pueppka v. Iowa Mutual Ins. Co., 165 Neb. 781, 87 N.W.2d 410.
An additional obstacle to the success of appellant in this litigation is the failure of proof of the extent of any physical injury to him or the extent of any aggravation of any previous physical condition of which appellant was a victim at the time of the accident. It was the conclusion of Dr. Ferciot that the accident may have been an aggravating factor in the condition of appellant only if he sustained a severe jolting injury and there was an onset of symptoms, of which qualifying conditions there is no proof, or appellant might have had all the conditions with which he suffered if there had been no accident in which he was involved. The doctor said he knew of no way in which to evaluate the degree or extent of any aggravation which any injury of the accident could have caused appellant.
The estimate of Dr. Getscher of the permanent restriction of function of the body of appellant as a whole which impaired his ability to work was about 10 to 15 percent but he explained that the estimated disability of which he spoke resulted, in his opinion, from all causes which affected appellant, including his defective lower back, the result thereof, and the surgical operations. The doctor expressed this view in these words: "As a result of everything that has happened up until today * * *." Dr. Getscher or any other witness did not attempt to evaluate what if any disability or damage was caused appellant by the accident alone. The extent of the injury or damage was an element of the case of appellant and proof thereof was indispensable to his success. Borcherding v. Eklund, supra; Wylie v. Czapla, supra; Weisenmiller v. Nestor, 153 Neb. 153, 43 N.W.2d 568; Restatement, Torts, § 912, p. 574.
The judgment should be and it is affirmed.
Affirmed.


134 Pa. Commonwealth Ct. 110 (1990)
578 A.2d 575
Deloris A. HEVERLY, Petitioner,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SHIP N SHORE) Respondents.
Commonwealth Court of Pennsylvania.
Argued November 17, 1989. Reargued June 13, 1990.
Decided July 19, 1990.
Nicholas S. Mattise, Munley, Mattise & Kelly, P.C., for petitioner.
Gregory D. Geiss, Dougherty, Mundy, Leventhal & Price, for respondent, Ship N Shore.
Argued before CRAIG and McGINLEY, JJ., and BARBIERI, Senior Judge.
*111 Reargued before CRAIG, President Judge, and DOYLE, COLINS, PALLADINO, McGINLEY, SMITH and PELLEGRINI, JJ.
PALLADINO, Judge.
Deloris Heverly (Claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision denying workmen's compensation benefits to Claimant under Section 301(c)(1) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1) (injury not in the course of employment). We affirm.
Claimant was employed by Ship N Shore/Crystal Brands, Inc. (Employer) as a retail sales clerk. On July 3, 1986, Claimant completed her duties at 5:10 p.m. and left her place of employment to return home. On the way home Claimant discovered that she had left her eye glasses at her place of employment. Claimant completed her trip home, after which she returned to her place of employment to retrieve her eye glasses, arriving at approximately 5:45 p.m. Claimant parked her car in front of the store, and upon exiting her vehicle, tripped and fell in a pot hole, suffering the injuries for which she now claims compensation.
The referee denied compensation based upon the following findings of fact.
7. The claimant returned to the store for the sole purpose of picking up her glasses for her own convenience. The date of July 3, 1986 was the day before a holiday and it is clear from the claimant's testimony she was returning to the store for the purpose of retaining her glasses and not in the furtherance of her employer's business.
8. This Referee finds that at the time claimant slipped and fell on July 3, 1986, she was not furthering her employer's business and was not in the course of her employer's business and her presence was personal and therefore, claimant did not sustain a work-related injury and her claim should be denied.
*112 The Board upheld the denial of benefits concluding that Claimant's injury was not causally related to her employment. Claimant appealed.
On appeal[1] to this court Claimant raises one issue: whether an injury sustained by an employee upon returning to her place of employment, to retrieve her eye glasses which she needed to perform her job, is compensable under the Act.
In Workmen's Compensation Appeal Board v. United States Steel Corp., 31 Pa.Commonwealth Ct. 329, 333, 376 A.2d 271, 273 (1977) we held that:
Injuries may be sustained in the course of employment in two distinct situations: (1) where the employee, whether on or off the employer's premises, is injured while actually engaged in the furtherance of the employer's business or affairs, or (2) where the employee although not actually engaged in the furtherance of the employer's business or affairs (a) is on the premises occupied or under the control of the employer, or upon which the employer's business or affairs are being carried on; (b) is required by the nature of his employment to be present on his employer's premises; and (c) sustains injuries caused by the condition of the premises or by operation of the employer's business or affairs thereon. (Emphasis added.)
Claimant argues that because the injury occurred on the premises of the employer she is entitled to compensation. However, the question is not whether the accident occurred on the employer's premises. The pivotal issue is whether Claimant's presence at the store at 5:45 p.m. was required by the nature of her employment. Claimant argues that because she must use her glasses to perform her job, the retrieval of them was directly connected to her employment. Claimant cites a number of cases which have granted compensation *113 when an injury occurs near the time of either the beginning or ending of employment, and the circumstances are not wholly foreign to the employment. We do not find these cases to be applicable.
In Workmen's Compensation Appeal Board v. Levy, 23 Pa.Commonwealth Ct. 658, 354 A.2d 7 (1976) this court granted benefits to an employee who was injured on her way to work when she slipped and fell on an icy sidewalk and struck her head on the employer's building. While the court held that an employee need not actually be engaged in the employer's work at the time of the accident, the accident must occur on the premises of the employer at a reasonable length of time either before or after the time fixed for employment to begin or end. Levy is limited to those cases when the employee is injured either coming to or leaving the work place. Levy does not apply when the employee is returning to the work place after having left following the end of her shift.
In the other cases cited by Claimant, Fashion Hosiery Shops v. Workmen's Compensation Appeal Board, 55 Pa.Commonwealth Ct. 465, 423 A.2d 792 (1980), Port Authority of Allegheny County v. Workmen's Compensation Appeal Board, 66 Pa.Commonwealth Ct. 393, 444 A.2d 837 (1982), and Michrina v. Fetzer, 8 Pa.Commonwealth Ct. 273, 301 A.2d 924 (1973), the party claiming benefits was either on his way to work or leaving work when the injury occurred. In no instance was there a complete departure from the premises and a later return after which the injury occurred, as in the instant case.
We do note the case of Treski v. Glen Alden Coal Co., 126 Pa.Superior Ct. 346, 191 A. 391 (1937) where compensation was granted to a miner who returned after a month's absence to his place of employment to remove his tools and was injured by an explosion. However, the miner was removing his tools at the direction of his employer, and his presence was required at the place of employment at the time the injury occurred. In the case now before this court, Claimant was not retrieving her glasses at the direction of *114 her employer and was not required to be on the premises at the time the injury occurred.
The principles of law which control the present controversy are set forth in Dana Corporation v. Workmen's Compensation Appeal Board (Gearhart), 120 Pa.Commonwealth Ct. 277, 548 A.2d 669 (1988), petition for allowance of appeal denied, 522 Pa. 606, 562 A.2d 828 (1989), Pypers v. Workmen's Compensation Appeal Board (Baker), 105 Pa.Commonwealth Ct. 448, 524 A.2d 1046 (1987), Harris v. Workmen's Compensation Appeal Board (Willowcrest-Bamberger Nursing Facility), 90 Pa.Commonwealth Ct. 483, 496 A.2d 87 (1985) and Giebel v. Workmen's Compensation Appeal Board, 41 Pa.Commonwealth Ct. 333, 399 A.2d 152 (1979). In Giebel an employee was injured while shopping in her employer's store during her lunch hour. We held that her presence at the time of her injury was not required by the nature of her employment and therefore not compensable.
In Harris we denied compensation to an individual whose presence on the premises was not required by his employment. It made no difference whether or not the premises were controlled by the employer.
In Pypers we denied compensation to an employee who completed her work duties and then engaged in a private party with friends at her employer's restaurant. Following the party, while leaving the premises, the employee fell on a patch of ice. We concluded that her presence on the premises, at the time of the injury was that of any other patron and accordingly her status as an employee ended when she joined the party.
Finally, in Dana we denied compensation to an employee who voluntarily stopped to assist a co-worker start a car, and was on the employer's premises longer than he normally would have been. These cases make it clear that Claimant's presence at employer's premises in the present case was not required by the nature of her employment. It was merely a personal mission.
Accordingly, we affirm the Board.

*115 ORDER
AND NOW, July 19, 1990, the order of the Workmen's Compensation Appeal Board in the above-captioned matter is affirmed.
McGINLEY and PELLEGRINI, JJ., concur in the result only.
NOTES
[1]  Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Ogden v. Workmen's Compensation Appeal Board (Carolina Freight Carriers Corp.), 127 Pa.Commonwealth Ct. 286, 561 A.2d 837 (1989).


356 F.3d 920
William HITT, Appellantv.HARSCO CORPORATION, Appellee.
No. 03-2332.
United States Court of Appeals, Eighth Circuit.
Submitted: November 21, 2003.
Filed: January 30, 2004.
Petition for rehearing is denied March 3, 2004.

The petition for rehearing by the panel filed by Appellant Hitt is denied,
Keith Blackman, argued, Jonesboro, AR, for appellant.
Charles W. Reynolds, argued, Little Rock, AR (Monte D. Estes, on the brief), for appellee.
Before MELLOY, RICHARD S. ARNOLD, and COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.

1
William Hitt appeals the district court's1 grant of summary judgment for defendant Harsco Corporation ("Harsco") dismissing Hitt's claim under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621-34. Reviewing the district court's decision de novo, we affirm.

I.

2
This dispute arises from Harsco's termination of Hitt's employment based on what Harsco asserts was a violation of company rules. Harsco says Hitt was fired for violating a rule against "aggressing or becoming involved in fighting." Hitt alleges that he was really fired because of his age, and that the company's explanation is a mere pretext.

3
Between 1992 and 2000, Hitt was employed by Harsco at its industrial support plant in Armorel, Arkansas. Hitt's responsibilities included operating a road grader, backhoe, pot carrier and bulldozer. When he was terminated in August 2000, Hitt was 65 years of age.

4
Hitt's son-in-law, Mark Odom, age 34, also worked at the Harsco plant. As of August 2000, tension had arisen between Hitt and Odom. Hitt believed that his grandson — Odom's son — had an injury to his hand as a result of abuse by a third party. Hitt had been trying to get custody of the child, and Odom refused even to allow contact between Hitt and his grandson.

5
On the morning of August 23, 2000, there was an altercation between Hitt and Odom at the Harsco plant. Hitt sought out Odom in the employee break room. With a raised voice, Hitt asked Odom what was wrong with the child's hand Odom replied that he did not know. Hitt then said "yeah, you do know. You know what the problem is with his hand" Witnesses reported that Hitt told Odom that he would "kick his ass" because of the dispute over Hitt's grandson. As the discussion became heated, Odom said, "that's something we need to talk about outside."

6
Hitt followed Odom outside, while a group of employees gathered. According to Hitt, they "probably" thought they were going to see a fight. Witnesses later reported to Harsco supervisors that Hitt cursed and attempted to punch Odom, and that Odom retaliated by kicking Hitt.

7
Odom left the plant immediately after the incident. Hitt went to a plant foreman, Paul Smith, to tell him what happened. According to Hitt, Smith replied by saying, "Old man, you are too old to be fighting." Hitt claimed that he wasn't fighting, but that he was only asking about his grandchild, and that Odom kicked him.

8
At the end of the day, Harsco suspended both Hitt and Odom. Hitt's supervisor, Rodney Barnes, and John Schmalzried, the regional business director, conducted an investigation of the incident by interviewing eyewitnesses.

9
Schmalzried reported the results of the investigation to Robert Imhof, Harsco's Director of Industrial Relations. Imhof, whose office was in Pennsylvania, had the ultimate authority to hire and discharge Harsco employees. Schmalzried told Imhof that two employees were involved in a "heated discussion" in the breakroom that had then moved outside. He reported that eyewitnesses said one employee had thrown punches and the other employee had kicked back in defense or retaliation. Schmalzreid did not inform Imhof of the identities of the employees, or of their ages, when he made this report.

10
Imhof decided that both men should be terminated pursuant to Harsco's General Conduct rule 6: "An employee guilty of horseplay, agitating, aggressing or becoming involved in fighting will be subject to disciplinary action, including discharge." No one was hired to replace Hitt. After his termination, Hitt's responsibilities were redistributed among Harsco's remaining employees.

11
Approximately 30 days after Hitt's termination, Harsco underwent a reduction-in-force. Hitt alleges that all members of his former crew over age 50 were laid-off during the downsizing. Layoffs were decided by plant supervisors in a series of meetings that occurred over a number of days leading up to the workforce reduction.

12
At some point following Hitt's termination, Hitt's wife, Brenda, contacted Imhof's office to complain about Hitt's termination. In response to these calls, Imhof visited the Hitts at their home. Hitt alleges when he related his version of the altercation with Odom, Imhof replied by saying he had been "misinformed" when he decided to terminate Hitt.

13
Hitt filed a charge of age discrimination with the Equal Employment Opportunity Commission ("EEOC"). The EEOC concluded that Hitt was terminated because of his involvement in a fight. After being issued a right to sue letter from the EEOC, Hitt filed the instant action alleging that Harsco fired him in violation of the ADEA. The district court granted summary judgment on the ground that Hitt failed to present evidence sufficient to create a reasonable inference that Harsco unlawfully discriminated on the basis of age.

II.

14
The district court should enter summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.Proc. 56(c). The non-moving party may not rest upon mere allegations or denials of the moving party's pleading, but must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.Proc. 56(e). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Like the district court, we give the non-moving party the benefit of reasonable inferences that may be drawn without resorting to speculation.

15
The ADEA makes it unlawful for an employer to discriminate against an employee on the basis of the employee's age if the employee is 40 years of age or older. Given the evidence in this case, the parties agree that Hitt's claims are properly analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

16
Under that analysis, the plaintiff must first establish a prima facie case that the defendant violated the statute. To make such a case under the ADEA, the plaintiff must ordinarily show that: (1) he is a member of a protected age group; (2) he was performing his job at a level that met his employer's legitimate expectations; (3) he was discharged; and (4) he was replaced by a younger worker. E.g., Ziegler v. Beverly Enterprises-Minnesota, Inc., 133 F.3d 671, 675 (8th Cir. 1998). Where, as here, the plaintiff's responsibilities were not reassigned to a specific individual, we have said the plaintiff must satisfy the fourth element of the prima facie case by showing "age was a factor in the employer's decision to terminate." Yates v. Rexton, Inc., 267 F.3d 793, 799 (8th Cir. 2001); see also Reynolds v. Land O'Lakes, Inc., 112 F.3d 358, 361 (8th Cir. 1997).

17
If an age discrimination plaintiff has established a prima facie case, the burden shifts to the defendant to "`produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason.'" Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000) (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). If the employer meets its burden to produce such evidence, then the plaintiff must "`prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 253).

18
In this case, Harsco joined issue early by volunteering that Hitt was fired for a legitimate, nondiscriminatory reason: He was fighting. Whether Hitt can satisfy the fourth element of the prima facie case and whether Hitt can establish that Harsco's stated reasons were a pretext turn, respectively, on whether Hitt can prove that age was a factor in, or the true reason for, the decision to terminate. We agree with the district court that there is insufficient proof of age discrimination to survive Harsco's motion for summary judgment.

19
Hitt urges that there is a genuine issue of fact as to whether he was actually fighting with Odom during the incident that led to termination. He asserts that Odom kicked him, but that he never engaged in fighting or impermissible aggressive behavior. Hitt relies on Imhof's alleged admission that he was "misinformed" about the incident when he made the decision to terminate Hitt for fighting. The difficulty with this contention is that it focuses on the wrong question. The key question in a discrimination case like this one is not whether Hitt was truly fighting, but whether the employer really believed that he was fighting, such that the termination was based on a non-discriminatory reason. Scroggins v. Univ. of Minnesota, 221 F.3d 1042, 1045 (8th Cir. 2000). It is undisputed that eyewitnesses reported to Harsco supervisors that Hitt threatened force against Odom in the break room, and then threw a punch at Odom when the two moved outside. These undisputed facts provided Harsco with a legitimate, non-discriminatory basis for termination, even if Hitt could now show that the witnesses were wrong in what they reported about the altercation.

20
Hitt argues that Harsco's explanation for his termination was a mere pretext for age discrimination, because he was disciplined more harshly than younger employees who engaged in similar conduct. Like the district court, we find the evidence of alleged disparate treatment unpersuasive. Hitt submitted evidence that in 1998, two Harsco employees were treated more leniently than he, because they were merely suspended for fighting. But even assuming the 1998 incident and Hitt's altercation were comparable (Harsco says they were not), one of the two employees who received this alleged leniency was aged 51, and thus a member of the protected class under the ADEA. Harsco, on the other hand, submitted undisputed evidence that younger employees were terminated for violating the company rule breached by Hitt. One 35-year-old employee was terminated for fighting in a previous incident, and Odom was terminated at age 34 for the altercation involving Hitt. If anything, this evidence tends to demonstrate that Harsco applies the rule against fighting without regard to age: A protected employee was suspended in one fighting incident; a younger employee was terminated in another; and in Hitt's own case, the company terminated both a younger employee and a protected employee. The evidence does not support Hitt's claim that age motivated his termination.

21
Hitt also submits that he was called "old man" by Smith, the foreman, and Barnes, the supervisor. Hitt testified that Barnes said on the work site that "you are too old to be out there," and that Barnes made comments referring to Hitt as "old man" with some regularity. He asserts that on the date of the altercation with Odom, Smith told Hitt, "Old man, you are too old to be fighting." From these submissions, Hitt asks us to find that a reasonable jury could infer his termination was based on age.

22
We are not persuaded that these remarks support an inference of age discrimination. While we have noted that "stray remarks" regarding age may be relevant to establishing a prima facie case or pretext under some circumstances, such comments are not persuasive evidence of motive when the remarks are made by persons other than a decisionmaker. Girten v. McRentals, Inc., 337 F.3d 979, 983 (8th Cir. 2003). Hitt has not presented facts to dispute Harsco's evidence that Robert Imhof was the person who decided to terminate Hitt and Odom, and that he did so without knowing their ages. Smith and Barnes were not decisionmakers; they did not even communicate with Imhof about the incident. Although Barnes participated with Schmalzreid, the regional business manager, in the company's investigation of the incident, there is no dispute that the report to Imhof about the altercation was based upon the statements of independent witnesses with no age-related animus, not upon Barnes's own rendition of events. Accordingly, even if the remarks cited by Hitt could be taken as evidence of motive by Smith or Barnes to discharge persons based on age, they do not support an inference that Imhof's decision to terminate Hitt was so motivated.

23
Hitt next contends that the decision to terminate him was influenced by the prospect of impending layoffs at Harsco. He argues that Harsco knew it would be conducting a reduction-in-force in the near future, so it used the Hitt-Odom dispute as a pretext to maximize the number of older employees terminated in the reduction. Hitt also asserts that Harsco disregarded its own workforce reduction policy when it made its decisions about layoffs, presumably so that it could base the decisions on age instead.

24
We are not convinced that Hitt has demonstrated a sufficient connection between the reduction-in-force and his termination to warrant a reasonable inference of age discrimination. Hitt has not cited, and our independent review has not located, evidence in the record that as of the date when Hitt was terminated, Harsco already had determined to implement the reduction-in-force. Without such evidence, it would be speculation to find that layoffs occurring in September influenced the termination of an employee in August.

25
We doubt, moreover, whether a pre-existing plan to reduce the workforce would tend to undermine Harsco's evidence that Hitt was fired for fighting, and not because of his age. Whether or not there is a basis to find that Harsco's decisions during the reduction-in-force in September were motivated by age, it remains undisputed that Harsco had a legitimate non-discriminatory basis for terminating Hitt. And it is undisputed that both employees involved in the altercation, including the younger employee, were discharged. Perhaps Harsco decided to be tough on fighters because the company had to reduce its workforce, but rigorous enforcement of company rules against all violators does not tend to prove age discrimination.

26
The judgment of the district court is affirmed.

Notes:

1
 The Honorable Susan Webber Wright, Chief Judge, United States District Court for the Eastern District of Arkansas


21 B.R. 453 (1982)
In the Matter of Brenda HAILEY, Debtor.
Bankruptcy No. 81-04613A.
United States Bankruptcy Court, N.D. Georgia.
March 9, 1982.
*454 Maxine J. Waddell, Decatur, Ga., for debtor.

ORDER
WILLIAM L. NORTON, Jr., Bankruptcy Judge.
Ms. Maxine J. Waddell is the attorney of record for Brenda Hailey, who filed a petition for relief under chapter 13 of the Bankruptcy Code, Case No. 81-04613A, on November 2, 1981.
Neither the debtor nor Ms. Waddell appeared at the debtor's Section 341 meeting of creditors on January 12, 1982.
On January 12, 1982, an order to show cause was issued to Ms. Waddell and on February 16, 1982, a hearing was held before the undersigned for Ms. Waddell to show cause why her fee should not be forfeited because of this failure to attend the debtor's Section 341 meeting.
Ms. Waddell did not make an adequate showing as to why her fee should not be forfeited.
Ms. Waddell's fee is listed as $300.00 in the debtor's Disclosure Statement accompanying the petition. The Disclosure Statement further indicates that none of Ms. Waddell's fee was paid at the time the petition was filed.
IT IS ORDERED, should any fee have been paid Ms. Waddell for debtor in this case, that such entire fee be forefeited for the failure of Ms. Waddell to attend the debtor's Section 341 meeting of creditors as required by her contractual responsibility to represent the debtor under the Code of Professional Responsibility and by the Bankruptcy Rules and orders of this court. Any such fee paid by the debtor to Ms. Waddell is to be refunded to the debtor through the Clerk of this Court on or before ten (10) days from the date of this order.
IT IS SO ORDERED.


45 F.3d 103
Bankr. L. Rep.  P 76,381David ASKANASE, Trustee, Plaintiff-Appellant,v.LIVINGWELL, INC., et al., Defendants,Peter M. Magee, et al., Intervenors-Defendants-Appellees,andTom J. Fatjo, Jr., Intervenor-Defendant-Appellee.
No. 93-2841.
United States Court of Appeals,Fifth Circuit.
Feb. 20, 1995.

C. Ed Harrell, Hughes, Watters & Askanase, Houston, TX, for appellant.
Rober L. Ketchand, Short & Ketchand, Houston, TX, for Fatjo.
Barry Abrams and Vicki A. Birenbaum, Sewell & Riggs, Houston, TX, for Magee, et al.
Albert Solocheck and Andrew N. Herbach, Howard, Solocheck & Weber, S.C., Milwaukee, WI, for Stein & Zilber.
Appeal from the United States District Court for the Southern District of Texas.
Before JONES and STEWART, Circuit Judges, and DUPLANTIER,* District Judge.
PER CURIAM:

1
David Askanase, as trustee for the bankruptcy estate of LivingWell, Inc., seeks to terminate the LivingWell, Inc. Directors and Officers Liability Insurance Trust and to have the funds in the trust turned over to the bankruptcy estate as property of the estate.  The district judge interpreted the trust instrument as prohibiting the termination of the trust under the particular circumstances.  The trustee appeals this adverse judgment.  Because we disagree with the district court's interpretation of the trust instrument, we reverse the district court's judgment, direct it to enter partial judgment in favor of the bankruptcy trustee, and remand for further proceedings.

2
LivingWell owned and operated physical fitness facilities throughout much of the nation.  The corporation, pursuant to a resolution of its board of directors, created the liability insurance trust in 1987 to indemnify its officers and directors from liability and legal expenses arising out of their positions with the corporation.  By September, 1989, the corporation had funded the trust with unencumbered cash in the amount of $1,000,000.

3
On October 27, 1989, LivingWell filed for bankruptcy under Chapter 11 of the Bankruptcy Code.  On October 5, 1990, the proceeding was converted into a Chapter 7 liquidation, and Askanase was appointed trustee of the bankruptcy estate.

4
The pertinent provisions of the trust agreement before the amendment at issue are as follows:

ARTICLE VII
RIGHT TO AMEND AND TERMINATE

5
Section 7.1.  Amendment.  Changes to this Trust Agreement may be made at any time or from time to time by the Company by resolution of its Board of Directors, and provided that in no case shall an amendment affect the rights, duties or responsibilities of the Trustee or the Administrator without its consent.1

6
Section 7.2.  Termination.  Subject to the following provisions of this Section 7.2, this Trust may be terminated at any time by the Company by action of its Board of Directors....

7
*   *   *   *   *   *

8
No termination of this Trust or the insurance coverage provided by the trust shall be effective until at least 36 months after the date on which the resolution of the Board of Directors of the Company authorizing such termination is adopted.

9
On November 29, 1990, Askanase, as the bankruptcy trustee, executed a "notice of termination" of the trust pursuant to Section 7.2 of the trust agreement as it then read.

10
On August 13, 1991, Askanase, as the bankruptcy trustee, amended Section 7.2 of the trust agreement so as to provide that termination of the trust by the bankruptcy trustee would be effective immediately.2  The amendment also deleted the requirement that the trustee of the trust "shall obtain for and on behalf of the Company, if reasonably available but only to the extent of the remaining assets of the trust fund ... extended discovery period coverage covering any 'tail liability' of the Company beyond the effective date of any such termination."   Immediately after adopting the amendment to section 7.2, Askanase executed an instrument terminating the amended trust.

11
On October 25, 1991, Askanase, on behalf of the bankruptcy estate, filed a separate lawsuit ("related suit") against many of the former officers and directors of LivingWell, which asserted various claims of a type which the insurance trust fund was designed to cover.  Many of these officers and directors intervened in the instant action and filed counterclaims asserting a right as beneficiaries of the trust to have their claims for indemnity and legal expenses arising out of the related suit satisfied before the corpus of the trust would be turned over to the bankruptcy estate.

12
The parties filed cross-motions for summary judgment.  Askanase sought a judgment directing that the remaining corpus of the trust be turned over to the bankruptcy estate and that the intervenors take nothing from the corpus because they had submitted their notice of claims for reimbursement of legal fees and expenses arising out of the related suit after the trust was terminated on August 13, 1991.  In their motions for summary judgment, the intervenors sought reimbursement for their legal costs and expenses incurred in the defense of the related suit before the funds are turned over to the bankruptcy estate;  they contend that they are beneficiaries with valid claims, because they provided the trust with notice of their claims during the thirty-six month "winding up" period which followed the initial notice of termination.  They contend that the amendment and second termination had no effect, because the trust could not be amended after the initial notice of termination.

13
The district court concluded that Askanase lacked the authority to amend and then terminate the trust on August 13, 1991, because he had already terminated the trust by executing the initial "notice of termination" on November 29, 1990.  The district court ordered Askanase to hold the corpus of the trust in a "trust created in law and in equity" unless Askanase shows in related litigation that some or all of the payments of corporate funds into the trust should be avoided as fraudulent conveyances or insider preference payments.  The district court also declared that the trust agreement shall establish the rights and remedies of the parties, subject to Askanase's attempt to avoid the corporate payments to the trust.  The district court dismissed the intervenors' claims without prejudice to reasserting them in other related litigation.

14
Askanase contends that he retained the power to amend the trust after he gave the required thirty-six month notice of termination in November 1990, that the August 13, 1991 amendment and termination of the trust were effective, and that the corpus of the trust should be turned over to the bankruptcy estate unfettered by any claims of the former beneficiaries.

Construction of the Trust Agreement

15
In interpreting a trust, "resort is had in the first place to the instrument, if any, under which the trust is created.  As to any matter expressly covered by the instrument, the provisions of the instrument, if unambiguous, determine the terms of the trust."   IIA Scott on Trusts Sec. 164.1 at 253 (4th ed. 1987).  Therefore, just as we must interpret a contract strictly and accord its words their literal, ordinary meaning, Olsen v. Shell Oil Co., 595 F.2d 1099, 1104 (5th Cir.1979), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979), we must enforce clear, unambiguous provisions of a trust agreement as they were written.

16
The bankruptcy estate succeeds to "all legal or equitable interests of the debtor in property as of the commencement of the case," including those powers that the debtor may exercise for its own benefit.  11 U.S.C. Sec. 541(a)(1), (b)(1).  Any interest which a debtor retains in a trust is property of the estate, including the power to amend the trust and the power to revoke a revocable trust and recover the remaining funds in the trust for the benefit of the creditors.  In re Gifford, 93 B.R. 636, 640 (Bankr.N.D.Ind.1988).  "Thus, what comes to the bankruptcy estate is not only the property in which debtor has an interest, but also, the powers the debtor can exercise for its own benefit over property regardless of the title debtor may be acting under."  Id.

17
LivingWell, Inc. had both a reversionary interest in the trust, because pursuant to the trust agreement any funds remaining in the trust after termination are to be returned to the corporation, and a present interest in the trust, because it had the power to amend or terminate the trust.  The bankruptcy estate of LivingWell succeeded to any rights or interests of LivingWell under the trust agreement, and Askanase as trustee assumed the power to terminate or amend the trust.3

18
The November 29, 1990 notice of termination did not terminate the trust as of that date because, according to the clear and unambiguous then terms of the trust agreement, the notice was not effective for at least thirty-six months.  Because the trust was not yet terminated, the trust agreement was still in force;  therefore, Askanase, as the successor to the bankrupt corporation's interest in the trust, had the authority to amend and then terminate the trust on August 13, 1991.  The intervenors-appellees contend that the amendment was without effect because the termination of the trust by the November 29, 1990 notice of termination began a winding up period in which an amendment to the trust was not authorized.  This argument overlooks the unambiguous provision in the trust instrument that the earlier termination was not "effective" for thirty-six months;  therefore, it had no effect as of the date of the second amendment and the immediately effective termination.

19
The amendment provision in the trust agreement is also an unambiguous and clear manifestation of the settlor's intention;  it gave the corporation a nearly unlimited power of amendment.  Section 7.1 of that trust agreement provided that:

20
[c]hanges to this Trust Agreement may be made at any time or from time to time by the Company by resolution of its Board of Directors, and provided that in no case shall an amendment affect the rights, duties or responsibilities of the Trustee or the Administrator without its consent.

21
The board of directors expressly reserved the right to amend the trust agreement without restriction, as long as an amendment did not affect the rights, duties, or responsibilities of the Trustee or the Administrator without its consent.  See Restatement (Second) of Trusts Sec. 331 (1959) ("The settlor has power to modify the trust if and to the extent that by the terms of the trust he reserved such a power.").  Such power to amend "at any time or from time to time" includes the power to amend the termination provision.  Sexton v. United States, 300 F.2d 490, 492 (7th Cir.1962), cert. denied, 371 U.S. 820, 83 S.Ct. 36, 9 L.Ed.2d 60 (1962).  Because the board of directors chose not to restrict the right of LivingWell, Inc. to amend the termination provision, the former board members cannot complain that the bankruptcy trustee, who succeeded to the rights of the board of directors of the corporation, chose to exercise that power to amend "at any time" by modifying the termination provision.

22
Just as we cannot read into a contract that which is not there, Southwest E & T Suppliers, Inc. v. American Enka Corp., 463 F.2d 1165, 1166 (5th Cir.1972), we cannot read into this trust agreement a restriction on amendment that is not in the terms of the trust.  The fact that the amendment provision contains a restriction on amendment not involved in this case further supports the conclusion that the settlor intended that the trust be otherwise freely amendable.

23
The August 13, 1991 amendment to the trust agreement deleted the requirement that the trust use its remaining funds to obtain "extended discovery period coverage covering any 'tail liability' " and added the following underlined language to the termination provision:

24
No termination of this Trust ... shall be effective until at least 36 months after the date on which the resolution of the Board of Directors of the Company authorizing such termination is adopted.  Notwithstanding the foregoing, should this Trust ... be terminated by its Court appointed Trustee in bankruptcy, the termination shall be effective immediately."

25
(underlined language was added by the amendment).  On the same day, the bankruptcy trustee then exercised his power, as successor to the company's board of directors, to terminate the trust, effective immediately, pursuant to its amended termination provision.

26
The terms of the original and amended termination provision provide that "[a]ny amounts held by the Trustee as Trust Fund assets upon the effective date of such termination ... shall be distributed to the Company within 30 days thereafter."   Of course, no such distribution "to the Company" can take place until all valid claims against the trust have been paid.  The district court did not consider whether there are any valid claims (including the intervenors' claims)4 against the corpus of the trust, notwithstanding its termination on August 13, 1991;  the district court must do so upon remand.  We do not imply that there are any such claims, nor do we imply that such claims may be valid against claims or defenses that may be asserted by the trustee, Askanase.  After all valid claims have been paid, the remaining corpus of the trust must be turned over to the bankruptcy estate, which succeeded to LivingWell's interest in the trust.

27
The district court's judgment is REVERSED and the case is REMANDED with instructions to enter a judgment declaring the trust terminated effective August 13, 1991, and ordering the turnover to the bankruptcy estate of the proceeds of the trust remaining after payment of all claims against the trust determined to be valid notwithstanding its termination on that date.

*
 District Judge of the Eastern District of Louisiana, sitting by designation

1
 This is the only restriction on amendment of the trust.  It has no impact upon the issues on appeal in this case, because the amendment at issue had no effect upon the Trustee or the Administrator

2
 The pertinent part of the amended provision is as follows:  "No termination of this Trust ... shall be effective until at least 36 months after the date on which the resolution of the Board of Directors of the Company authorizing such termination is adopted.  Notwithstanding the foregoing, should this Trust ... be terminated by its Court appointed Trustee in bankruptcy, the termination shall be effective immediately."  (underlined language was added by the amendment)

3
 The intervenors-appellees mistakenly rely upon In re Louisiana World Exposition, Inc., 832 F.2d 1391 (5th Cir.1987) for their contention that the corpus of the trust was not property of the estate.  In re Louisiana World Exposition concerned the ownership of the proceeds of a third party insurance policy in which the debtor corporation did not have a reversionary interest.  Id. at 1399.   In contrast, the case at issue involves ownership of the corpus of a revocable trust whose trust agreement states that any trust assets remaining after termination are to be distributed to the debtor corporation

4
 Because LivingWell's by-laws provided for indemnification (independent of the insurance trust) of officers and directors to the maximum extent permissible under the laws of Delaware, claims for indemnification of the former officers or directors not covered by the trust as terminated on August 13, 1991, can be pursued as claims against the bankruptcy estate