author: KLINGEMAN, Justice.

text:
    Chas. M. CAIN, Appellant, v. Salvatore FONTANA, d/b/a Fontana’s Cafe, Appellee.
    No. 14639.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 13, 1967.
    Rehearing Denied Jan. 17, 1968.

      Pepos S. Dounson, San Antonio, for appellant.
    Tom Joseph, Joseph Chacon, Jr., San Antonio, for appellee.
   KLINGEMAN, Justice.

Action by Salvatore Fontana, d/b/a Fontana’s Cafe, against Chas. M. Cain for malicious trespass on realty and damages for restoration, loss of profits and exemplary damages. The parties will be herein referred to as designated in the trial court. Trial was to a jury.

The special issues submitted were answered substantially as follows: (1) Defendant caused debris to be placed on property belonging to plaintiff. (2) Plaintiff sustained a loss of business as a result of the debris being placed on his property, and (3) that $250.00 would reasonably compensate plaintiff for such loss of business. (4) The sum of $125.00 would reasonably compensate plaintiff for his expense in having such debris removed. (5) The surface of the parking area of plaintiff’s cafe was damaged as a proximate result of the removal of the debris, and (6) that the sum of $150.00 would reasonably compensate plaintiff for his expense in resurfacing such property. (7) Defendant was activated by malice in causing the debris to be placed upon such premises. (8) Plaintiff should be allowed the sum of $1,000.00 as exemplary damages. A remittitur of $50.00 was made by plaintiff in connection with the jury’s award of $150.00 for restoration of the surface. Judgment was entered for plaintiff in the amount of $475.00 actual damages, and $1,000.00 exemplary damages.

Plaintiff was the owner and operator of a cafe, known as Fontana’s Cafe, located on Broadway in San Antonio, Texas. The evidence shows that the principal parking area of such business was to the rear of his cafe. During the month of May, 1966, defendant caused large dump trucks loaded with concrete blocks, debris and other junk which was being removed from a building in San Antonio not owned by defendant, to be dumped on such parking area to the rear of plaintiff’s cafe, which concrete blocks and debris remained on said premises until removed by plaintiff about June 1, 1966. The testimony further shows that the rock and debris were so placed as to make a large portion of such parking area inaccessible.

Defendant asserts that the trial court erred in admitting into evidence three deeds of conveyance into Salvatore Fontana pertaining to the property, and in allowing the custodian of deeds and record hooks of the Bexar County Clerk’s Office to testify as to the contents of such deeds, over defendant’s objection that there was no proof of execution or authentication of such deeds, and that the requirements of Articles 3726 and 3726b, Vernon’s Ann. Civ.St., as to the giving of three days notice had not been complied with; that such custodian of deeds was not testifying from personal knowledge; and that such testimony was in violation of the best evidence rule. Plaintiff alleged that he was the owner of the property involved, and testified that at and before the alleged trespass he was in possession of such premises. This is not a suit in trespass to try title, but is a tort action for actual and exemplary damages for malicious trespass. The action for trespass is designed to protect the interest in exclusive possession of the land involved in its intact physical condition, and any person in actual and exclusive possession of the property may maintain such action. Prosser, Law of Torts, Intentional Interference with Property, p. 68. Further, it is well settled in Texas that the party in possession of land is considered to be the owner until the contrary is proved, and that his possession imports that he holds a title thereto. Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490, 107 S.W.2d 564, 111 A.L.R. 1152 (1937); State v. Lain, 339 S.W.2d 272 (Tex.Civ. App.-Waco, 1960, affirmed 162 Tex. 549, 349 S.W.2d 579, 1961). The error of the court, if any, in admitting such deeds into evidence and allowing the custodian of deeds to testify as to their contents was harmless.

Defendant also maintains that the trial court erred in refusing to set aside and disregard the jury’s answers pertaining to loss of business as a result of such debris, on the grounds that there was no evidence, insufficient evidence, and that such answers could only be based on conjecture, prejudice, or bias. Plaintiff’s bookkeeper testified he had been doing plaintiff’s accounting for several years, and that according to his compilations plaintiff’s business had a net profit of $533.31 in January, 1966, a net profit of $565.17 in February, 1966, a loss of $188.95 in April, 1966, a loss of $441.57 in May, 1966 (the month of the trespass), a loss of $78.80 in June, 1966, and a loss of $307.59 in July, 1966. He did not testify as to the net profits in March, 1966. He further testified that, according to his compilations, plaintiff’s gross income for the months of January, February, March, April, June and July of 1966 were approximately $2,000.00 a month, and that in May (the month of the trespass) his gross income was $806.65. There was testimony by plaintiff that he lost business in May after the debris was placed on the property. Defendant contends that since the testimony of such accountant shows that plaintiff had a loss for the month immediately preceding the trespass and for the two months after the trespass that such business was a losing business and plaintiff could not be entitled to damages for loss of profits, and further contends that the amount of any loss was not shown with reasonable certainty and there was not sufficient data to compute probable losses. The record discloses that plaintiff had maintained such business for a number of years and such business was an established and going business. A loss occasioned by an interference with one’s business from the actionable conduct of another is a proper element of damages, and profits lost as a result of such interference are properly recoverable in a tort action. In such an action, while it is necessary that the damages be shown with reasonable certainty, pre-existing profits, together with other facts and circumstances, may be considered in arriving at a just estimate of the amount of profits lost. Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (1938); Belcher v. Bullion, 121 S.W. 2d 483 (Tex.Civ.App.-Austin 1938, no writ); 17 Tex.Jur.2d, Damages §§ 147, 149 (1960). Under the facts of this case it cannot be said, as a matter of law, that plaintiff is not entitled to a recovery for loss of business, and the jury’s finding of $250.00 damages is sufficiently supported by the evidence.

Defendant also contends that the trial court erred in refusing to set aside and disregard the jury’s answer pertaining to damages to the surface of the parking area, asserting that such damage to the surface was caused by an independent contractor, McLeod, who was employed by plaintiff to move off the debris, and defendant is not responsible for such damage. McLeod testified that in order to move off such massive rocks and other debris placed on the premises by defendant it was necessary to use large equipment, including a winch-truck and front-end loader, and further testified that it was not possible to remove such rocks and debris without damaging the surface. When asked what would be a fair and reasonable cost for restoring such property back to its original condition, he stated that he wouldn’t mess with it for less than about $100.00, and that he couldn’t move the necessary equipment over there for less than that amount. In the case of temporary damage to realty the cost of restoring the property to its former condition is recoverable. City of Abilene v. Walker, 309 S.W.2d 494 (Tex.Civ.App.—Eastland 1958, no writ); 17 Tex.Jur.2d, Damages § 69. See also Hillman v. Baumbach, 21 Tex. 203 (1858) ; Prosser, Law of Torts, Trespass to Land, p. 67. Defendant’s Point of Error No. Five is overruled.

Defendant also asserts that the trial court erred in submitting Special Issues Nos. 7 and 8, dealing with the issue of malice and exemplary damages, and in denying defendant’s motion to set aside and disregard the jury’s answers to such questions, because there was no evidence of malice, insufficient evidence, and the jury’s findings are against the overwhelming weight of the evidence.

Exemplary damages are recoverable if the injury complained of results from a wrong accompanied by aggravating circumstances of malice, fraud, or gross negligence. Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709 (1943). Our Supreme Court in Ware v. Paxton, 359 S.W.2d 897, in setting forth certain guideposts in connection with exemplary damages, reap-proved the following rule:

“The fact that an act is unlawful is not of itself ground for an award of exemplary or punitive damages. The act complained of not only must be unlawful but also must partake of a wanton and malicious nature, or, as sometimes stated, somewhat of a criminal or wanton nature, and an act will not be deemed malicious, and so warranting punitive damages, merely because it is unlawful or wrongful.”

The Court went on to say that “Definitions of malice and the grounds for exemplary damages are necessarily general and do not provide precise limits for the decision of cases.”

We have carefully reviewed the evidence in the case before us to determine whether defendant’s conduct and acts were extreme enough to be considered malicious, wanton and indicating a reckless disregard of their injurious consequences to others. Defendant maintains that his acts were not malicious, and exemplary damages are not recoverable because he was acting under a good faith belief that the property where the rocks and debris were placed was his. It appears from the record that defendant owned some property in the immediate vicinity of the parking area where the debris was placed, although the exact location of such property is not disclosed. Defendant did not testify at the trial, and the only evidence as to his supposed belief that he owned the property was from other persons to whom he had made such assertions. One of the truck drivers who dumped some of the debris on the affected parking area testified that defendant told him that other people were using his property and he wanted to block people using his property. There was testimony of other witnesses that defendant stated he was dumping the rock and debris on his own property. The jury, after hearing such testimony and the other testimony as to defendant’s acts and conduct in connection with such property, could choose to disbelieve defendant’s statements to others as to his belief as to the ownership of such property, or could infer that such statements were made for the purpose of establishing an alibi for his acts. The testimony shows clearly that defendant’s purpose and intent in dumping such massive rocks on the parking area was to prevent people from coming into that area and to hinder or prohibit parking on such area. One truck driver testified that defendant instructed him to dump his load as much in the road into such parking area as possible, and another truck driver testified that defendant told him to back up as near as he could to the rear of plaintiff’s cafe to dump his load. Plaintiff testified that on another occasion, four or five years previously, defendant had placed planks with long nails sticking out of them on such parking lot, and that there was some trouble about it at such time. Plaintiff also testified that on the occasion when the rocks and debris were placed on the parking lot defendant was present and, after plaintiff talked to him about it, defendant promised that he would have a bulldozer out the next day or two and move everything, which testimony was substantiated by one of the truck drivers. Despite such assertion and despite the fact that the presence of such massive rocks on such premises was a continuing trespass and was interfering with plaintiff’s use of his property, defendant never moved the rocks and debris and plaintiff finally had to move them. The evidence establishes that defendant’s conduct was wilful, deliberate and intentional, and evidences a wanton disregard of the rights of plaintiff. The jury could properly conclude that it was done with a conscious and reckless disregard of the injurious consequences of his act to others. See Bennett v. Howard, supra; S. Jacobs, Bernheim & Co. v. Crum, 62 Tex. 401 (1884); Hood v. Adams, 334 S.W.2d 206 (Tex.Civ.App.-Amarillo 1960, no writ); Schutz v. Morris, 201 S.W.2d 144 (Tex.Civ.App.-Austin 1947, no writ); Aetna Life Ins. Co. v. Love, 149 S.W.2d 1071 (Tex.Civ.App.-El Paso 1941, writ dism’d jdgmt cor.).

Defendant complains that the award of $1,000.00 exemplary damages is excessive. The amount of exemplary damages awarded by the jury is approximately twice the amount of actual damages awarded. While the amount of exemplary damages should be reasonably proportional to the actual damages, no set rule or ratio as between the amount of actual damages and exemplary damages can be laid down, and such amount must depend upon the facts of a particular case. Such amount depends, among other things, upon the nature of the wrong, the character of the conduct involved, the degree of culpability of the wrongdoer, the situation and sensibilities of the parties concerned, and the extent to which such conduct offends a public sense of justice and propriety. Schutz v. Morris, supra; Wright Titus, Inc. v. Swafford, 133 S.W.2d 287 (Tex. Civ.App.-Austin 1939, writ dism’d jdgmt cor.); 17 Tex.Jur.2d, Damages, §§ 186, 187. Under the rules laid down, we cannot say that the jury acted unreasonably or abused its discretion in making an award of $1,000.00 exemplary damages.

Defendant maintains that the court erred in refusing to assess the cost of an oral deposition of defendant against plaintiff because such deposition was never used. The Supreme Court in Missouri Pacific Railway Co. v. Jarrard, 65 Tex. 560 (1886), held that the failure to use a deposition in a trial is no ground for taxing a party with the expense of taking such deposition.

Defendant also complains of error of the trial court in admitting in evidence certain checks given by plaintiff for repair and improvements on such premises. Counsel for plaintiff in open court stated that he was not suing on such checks, and the trial court also acknowledged this. While we do not see the materiality of the introduction of such checks in the case on trial, in view of the court’s and counsel’s statement, and the fact that the jury’s findings of damages were sufficiently supported by other evidence, the error, if any, in admitting such checks was harmless.

Defendant maintains that a new trial should be granted because of certain testimony by plaintiff to this effect: “Well, I just want what he (the defendant) owns there and you (the defendant’s attorney) take the rest and we’ll both be millionaires.” Such testimony was promptly objected to and sustained by the court and the jury instructed not to consider it. The testimony was given on cross-examination in response to a question by defendant’s counsel pertaining to certain buildings owned by defendant, to the effect: “I was just wondering which one you want.” While it is ordinarily not proper to discuss the relative worth of the parties, in view of the nature of defendant counsel’s question and the court’s instruction, we do not find any reversible error.

All of defendant’s points of error are overruled. The judgment is affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Charles D. CALDWELL, Appellant, v. Cordia G. CALDWELL, Appellee.
    No. 4666.
    Court of Civil Appeals of Texas. Waco.
    Dec. 28, 1967.
    Rehearing Denied Jan. 18, 1968.

      Clair F. Achenbach, Dallas, for appellant.
    Burt Barr, Dallas, Robert Doss, Denison, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Charles D. Caldwell from a judgment awarding plaintiff Cordia G. Caldwell a divorce, dividing property, and awarding plaintiff’s attorneys a fee from community property of the parties.

Plaintiff, Cordia Caldwell, filed suit for divorce against defendant Charles Caldwell, alleging “defendant several years prior to said separation commenced a course of harsh, cruel and tyrannical treatment toward the plaintiff; that he was always continually fussing and nagging at the plaintiff; that such conduct on the part of the defendant toward her renders their further living together insupportable.” Plaintiff prayed for divorce, property division, and attorneys’ fees.

Defendant excepted to the allegations of cruel treatment as vague and indefinite; but did not bring same to the attention of the trial court or secure an order overruling same, and did not object to any testimony offered on the issue of cruel treatment.

Trial was to the court without a jury, which, after hearing, granted plaintiff divorce; awarded plaintiff’s attorneys $8500. attorneys’ fee out of community funds of the parties; awarded plaintiff her separate properties; awarded defendant $8,250.; a 1962 Dodge automobile, lawnmower, motorboat, $1,000. insurance policy on defendant’s life, other insurance policies and cemetery lot; and awarded plaintiff all other community property of the parties.

Defendant appeals on 4 points, contending the trial court erred:

1) In granting divorce “for the reason that plaintiff’s petition did not properly allege any ground upon which a divorce could be granted, against which defendant specially excepted.”
2) In granting a divorce “for the reason there was no evidence, or insufficient evidence, to support such decree.”
3) “In failing to make a particular finding of what was community property and what was separate property, thereby perpetrating a severe injustice upon defendant under the judgment.”
4) In awarding plaintiff’s attorneys “the sum of $8500. payable out of the community property,” without a separate finding of the value of the community property.

Defendant’s 1st contention is that plaintiff did not properly allege any ground upon which divorce could be granted. Plaintiff alleged “harsh, cruel and tyrannical treatment * * * which renders their further living together insupportable.” While defendant excepted to the foregoing as vague and indefinite, he did not preserve the point by getting a ruling on his exception, and thereafter objecting to testimony.

Defendant’s right to object to the pleading has therefore been waived; and the pleading is sufficient to support an action for divorce on the ground of cruel treatment. McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459.

Defendant’s 2nd contention is that there is no evidence, or insufficient evidence, to support a decree of divorce.

The record reflects the plaintiff is 83 years of age; the defendant some 88 years of age; and they had been married some 17 years. Plaintiff owned considerable property; defendant had none at the time of the marriage. Almost all income was from the separate property of plaintiff. Plaintiff is crippled and immobilized since 1943. She testified defendant was nagging her to give him all her property and was trying to take everything away from her, and that this caused her anxiety and unrest; that-it was impossible for her to live with defendant as husband and wife. Defendant left plaintiff on 2 occasions and moved out; told others that plaintiff had lost her mind; and tried to get the banker to change plaintiff’s bank account to defendant’s name.

In a divorce case the question of whether further living together by the parties is insupportable is a fact question to be determined by the trial court, under all facts and circumstances in the case, and much latitude is allowed a court in determining such question. Mobley v. Mobley (nwh) Tex.Civ.App., 263 S.W.2d 794. From the record, we cannot say the trial judge abused his discretion in granting the divorce; or that there is no evidence or insufficient evidence to sustain the judgment.

Defendant’s 3rd contention is that the trial court erred in not making findings as to what was community property and separate property. Defendant has waived such point by not making demand for such findings by the trial court under Rule 297, Texas Rules of Civil Procedure.

As to the trial court’s division of the community property, Article 4638, Vernon’s Ann.Tex.St. prescribes that the trial court shall divide the estate of the parties in such a way as the court shall deem just and right. We are unable to say from this record that the trial court acted arbitrarily, or that there is shown any abuse of discretion. See: Grant v. Grant, (nre) Tex. Civ.App., 351 S.W.2d 897; Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299.

Defendant’s 4th contention complains of the award of attorneys’ fees to plaintiff’s attorneys out of the community property, “without a separate finding of the value of the community property.” Defendant requested no findings of the trial court, and cannot be heard to complain of such for the first time on appeal. Rules 296, 297, T.R.C.P.

All defendant’s points and contentions are overruled.

Affirmed.


author: CHAPMAN, Justice.

text:
    WESTERN FIRE & INDEMNITY COMPANY, Appellant, v. Lloyd DYE et ux., Appellees.
    No. 7761.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 27, 1967.
    Rehearing Denied Dec. 26, 1967.
    Crenshaw, Dupree & Milam and Cecil Kuhne, Lubbock, for appellant.
    Splawn & Maner and Don Reed, Lubbock, for appellees.
   CHAPMAN, Justice.

This is an appeal by Western Fire & Indemnity Company from a judgment based upon a jury verdict in a workmen’s compensation case arising from accidental injuries sustained by plaintiff-appellee, Naomi Dye, while employed at Underwood’s Cafeteria in Lubbock, Texas. The suit is prosecuted in the name of Lloyd Dye on behalf of his wife, Naomi Nell Dye. Upon the jury’s finding that Mrs. Dye’s weekly wage immediately preceding her injuries was $56.82 and that she was permanently disabled, compensation was awarded at the rate of $34.09 per week for 401 weeks as per Art. 8306, Sec. 10, Workmen’s Compensation, Vernon’s Tex.Civ.St.

Among the points upon which the appeal is prosecuted by Western Fire & Indemnity Company is its second point to the effect that the finding by the jury of an average weekly wage of $56.82 under Special Issue 15 is contrary to the great weight and preponderance of the evidence. We hold the point is well taken.

In passing upon the point it is the duty of this court to weigh and consider that evidence which supports the verdict and that which does not, and to set aside the judgment and remand the case' if after such consideration we conclude the verdict is so contrary to the overwhelming weight of all the evidence as to be manifestly unjust, regardless of whether there is some evidence to support it. Prewitt v. Watson, 317 S.W.2d 954, Tex.Civ.App.Amarillo, 1958, approved, Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815; In re King’s Estate, King v. King, 150 Tex. 662, 244 S.W.2d 660.

The only testimony in the record upon which a finding by the jury could be supported for an average weekly wage rate of as much as $56.82 is the following question and answer:

“Q. $5.00 a week for the banquet and $5.00 a week for uniforms, and then considering them all together on the average of what you would make each week before any deductions were taken out, your gross income, what would you estimate that you earned out there counting everything, Mrs. Dye?”
“A. Approximately $60.00.”

In considering the testimony contrary to the figure stated we find that Mrs. Dye admitted she punched a time clock and she would not quarrel with whatever the time cards showed. The time cards showed she worked 282 regular days and 8 days extra at parties rather than the approximate 270 days some of her other testimony had indicated. She worked 5½ days a week.

Instead of ten banquets extra at $5.00 each she testified about, the records showed she worked eight banquets and earned $40.00 extra in that work. Then, instead of $5.00 per week for uniforms, the record shows she used four a week which costs $1.70 per week rather than the $5.00 per week that she testified went into the $60.00 a week earnings. The records required to be kept by appellee’s employer also show Mrs. Dye’s total earnings from the time she went to work on June 4, 1964 until May 11, 1965, the day she was injured, was $2,258.22 plus $40.00 extra she received in working banquets. The payroll records are in evidence without objections. Those figures total $2,298.22. The four uniforms at $.35 each totals $1.70 per week, or a total of $68.60. This sum added to the $2,298.22 figure totals $2,366.82, which gives $8.16 per day earned on the basis of the 290 days the record shows she worked. Multiplying the average daily wage of $8.16 by 300 gives a total of $2,448.00, which, when divided by the 52 weeks in a year, gives an average weekly wage of approximately $47.08, $9.74 less than found by the jury. Then it is obvious that the great weight and preponderance of the evidence is contrary to the jury verdict.

Though Mrs. Dye had made just an estimate of the cost per week of $5.00 for laundry of her uniforms and admitted on cross examination she did not know what it cost, even if the figure is to be used, the probative evidence would still show substantially less an amount of average weekly wage than found by the jury. Additionally, when she agreed to the records, the speculative evidence she had given previously with respect to the number of days she worked, would, in our opinion, not constitute probative evidence as to the number of days she worked contrary to those records.

This is not one of those harmless error cases such as shown under note 546, page 500, Vol. 23, Art. 8309, sec. 1, V.T.C.S., Workmen’s Compensation “Harmless error as to wages or earnings.” To the contrary, even the weekly wage rate of $56.82 found by the jury, when multiplied by 60% results in less than the maximum of $35.00 per week. Figured on the basis of the probative evidence, the total amount of compensation would be several hundred dollars less than found by the jury.

In weighing all the evidence in favor of the jury’s verdict on Special Issue No. 15 and all that which does not support such issue, we conclude the verdict is so contrary to the overwhelming- weight of all the evidence as to be manifestly unjust, regardless of whether there is some evidence to support it. Such issue being material to the judgment rendered, the judgment of the trial court is reversed and remanded for a new trial.

      . Art. 8309, sec. 1, subsection (1) V.T.C.S.


author: BARROW, Chief Justice.

text:
    FROST NATIONAL BANK OF SAN ANTONIO, Appellant, v. V. E. DOBBS et ux., Appellees.
    No. 14638.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 27, 1967.
    Rehearing Denied Jan. 17, 1968.
    Kelso, Locke & King, San Antonio, for appellant.
    James R. Warncke, San Antonio, for appellees.
   BARROW, Chief Justice.

Appellees, V. E. Dobbs and wife, Charlotte Dobbs, filed this suit to recover the sum of $3,000.00, being the proceeds of a check deposited to their account in appellant Bank on Friday, November 6, 1964, and charged back on Monday, November 9, 1964, because the drawer purportedly stopped payment on same. Appellant, hereinafter sometimes referred to as Frost Bank, filed a third-party action against Rollin B. Ballard, independent executor and residuary devisee of the Estate of Mrs. Margaret Irvin Sullivan, the drawer of the check, who died on December IS, 1964. This third-party action was severed by the trial court over appellant’s protest shortly before the case was tried. Judgment was rendered for appellees after a jury trial.

The transaction occurred prior to adoption of the Uniform Commercial Code and is governed by the law then in effect, primarily, the Negotiable Instruments Act, Arts. 5932-5948, Vernon’s Ann.Civ.St., and the Texas Banking Code, Art. 342, Vernon’s Ann.Civ.St.

Appellant urges six points which may be grouped under four propositions: 1. The trial court abused its discretion in severing the third-party action, in that appellant would be entitled to a judgment over in the consolidated action, whereas, if the third-party action is tried separately appellant is in jeopardy of losing both causes. 2. There is no evidence to support the jury’s finding that Mrs. Sullivan did not sign a Stop Payment Request or, in any event, the verdict is so against the overwhelming weight of the evidence as to demonstrate bias and prejudice. 3. Frost Bank never became liable to appellees on the check since it had the unconditional right, under Art. 342-704, Vernon’s Ann.Civ.St., to refuse payment on the check and charge same hack to appellees’ account at the time it did so without regard to a Stop Payment Request. 4. The undisputed evidence shows that appellees did not elect to hold Frost Bank liable for refusal to pay the check, in that no claim was made against it before this suit was filed on June 15, 1966.

The facts, although presenting a rather novel situation, are largely uncontradicted. Mrs. Sullivan, a divorced alcoholic, established a living trust with the Frost Bank in 1957, with the deposit of about $60,000.00, inherited from her mother’s estate. Earnings from this trust were deposited quarterly to her checking account at said bank, and from time to time deposits of principal were made at her request. Mrs. Dobbs was a registered nurse employed by the Santa Rosa Hospital and in this capacity had known Mrs. Sullivan approximately five years. About 3 :00 a. m. on November 6, 1964, Mrs. Sullivan, who was hospitalized at the Santa Rosa Hospital, desired to make a gift to Mrs. Dobbs, who was to leave on vacation the next day. With the assistance of Mrs. Dobbs, a check in the amount of $3,000.00, drawn on Mrs. Sullivan’s checking account at Frost Bank, was prepared, signed and delivered to Mrs. Dobbs, together with a note for Louis Baker, a Frost Bank trust officer in charge of Mrs. Sullivan’s trust account. Sometime between one and three o’clock that afternoon, Mrs. Dobbs went to Baker’s office on the seventh floor of appellant bank as requested by Mrs. Sullivan.

There is some dispute as to the conversation between these parties. The note is not completely legible or coherent, however, the word -“verify” is legible. Mrs. Dobbs testified that Baker called a bank teller at her request and verified that there were sufficient funds in Mrs. Sullivan’s account to cover this check, and Mrs. Dobbs immediately went downstairs and deposited the check in appellees’ account. Baker admitted verifying the amount in Mrs. Sullivan’s account and telling Mrs. Dobbs she could deposit the check. He testified, however, that he told her he was going to talk to Mrs. Sullivan as he didn’t think she could afford a gift of that size. He promised to telephone Mrs. Dobbs if payment was stopped by Mrs. Sullivan. Mrs. Dobbs denied that Baker stated the deposit was conditional. Baker further testified that after Mrs. Dobbs left he telephoned Mrs. Sullivan and after talking to her on the telephone he secured and filled out a Stop Payment Request form which he took to the hospital.

Baker testified that Mrs. Sullivan signed the original of the Stop Payment Request form which he then delivered to the commercial department of the Bank. Frost Bank was unable to account for the original at the time of the trial and, although Baker produced a carbon copy from Mrs. Sullivan’s file, the jury found that Mrs. Sullivan did not sign and deliver to Baker a Stop Payment Request. The evidence is undisputed, however, that later that afternoon Baker telephoned Mrs. Dobbs and advised that he had seen Mrs. Sullivan at the hospital and that he was going to stop payment on the check. The check was returned to Mrs. Dobbs by mail on November 9, 1964, marked “Payment Stopped.” Ap-pellees’ bank statements were introduced into evidence which showed a deposit on November 6, of $3,000.00 and a debit on November 9, 1964, in the same amount. The check was stamped “Paid Nov. 6, 1964,” and also “Cancelled in Error” was typed on same.

The Frost Bank officer in charge of the bookkeeping department testified without contradiction to the system of deferred posting used by the Bank. A deposited check goes from the teller to the proof department where the addition on the deposit slip is checked. That night the check goes through the data processing system which automatically credits the depositor’s account and debits the drawer’s account on magnetic tape. The next business morning the check is machine stamped “paid” and photographed. It then goes to the bookkeeping department where the signature and endorsements are verified, and a check is made to see if a “Stop Payment Request” had been received. If the check is not good for any of these reasons, the “paid” stamp is cancelled so the check can be redeposited if desired, and the check is returned to depositor.

This evidence establishes that the drawer, Mrs. Sullivan, did not stop payment on this check before it was presented to the drawee, Frost Bank, for deposit to payee’s account, and that at such time Mrs. Sullivan had funds in her account in excess of the sum of $3,000.00, sufficient to satisfy said check. Since there is no jury finding that there was an agreement between payee, Mrs. Dobbs, and Frost Bank to make the deposit conditional, appellees urge that by issuance of the deposit slip Frost Bank accepted and paid the check. Such a contention was sustained in Norton v. Mercantile Bank & Trust Co., 51 S.W.2d 1062 (Tex.Civ.App. — El Paso, 1932, writ dism’d), but that case is not controlling as it was decided prior to the adoption in 1943 of the Texas Collection Act (Arts. 342-701 to 342-712) which permits a deferred posting procedure. This act avoids the difficulty presented courts under the common law in determining the time of “acceptance” of the check by drawee, in that all rights and duties are based upon the time of “presentment” of the check to the bank by payee.

The evidence is undisputed that Baker advised Mrs. Dobbs on the day of presentment that he had talked to Mrs. Sullivan and that payment would be stopped and the check returned to her. The question presented is whether under Art. 342-704 the drawee bank is given the unrestricted power of revocation on the day of presentment.

This section is ambiguous on this point and we have found no prior decision in which this point was considered. The authors of an exhaustive review of the Texas Collection Act have expressed the opinion that the drawee’s power of revocation is not restricted during the day of presentment. See Morrison & Sneed, “Bank Collections : The Stop-Payment Transaction,” 32 Texas Law Review, 259, 294, 295.

Art. 342-704 provides in part that “items presented to a drawee bank shall be received by it, subject to final adjustment and all clearing house settlements, checks, drafts, credits, advances of money, charges or entries to accounts (including sight posting), shall be conditional and subject to revocation (a) during the day on which the item is presented * * *, or (b) until midnight of the banking day after the day of presentment, exclusive of Sundays and holidays, (c) if it is finally determined that the drawee bank was not at the time of presentment * * * authorized or obligated to pay the item, and if the drawee bank shall within that time refuse payment and return the item, * * (Lettering added.)

It is not clear that the restriction set out in clause (c) above, upon revocation of a conditional settlement, operated during the day of presentment as well as until midnight of the banking day after the day of presentment. As pointed out in the above cited article, in order to give content to both times it is necessary to conclude that there is no restriction on the drawee’s right to revoke a conditional settlement provided the bank revokes same on the day of presentment. Otherwise, there is no clear meaning added by statutory language which includes a shorter period within the longer period of midnight of the banking day after the day of presentment. The authors also point out that this interpretation conforms to the common-law rule for clearing house settlements which permits revocation of conditional settlements for any reason, provided action is taken before cut-off time on the same day as presentment. It is also significant that the 55th Legislature amended the section by substituting “or until midnight of the banking day after the date of presentment” for “or within twenty-four hours after presentment,” as provided in the 1943 Act.

Thus two Legislatures have specifically provided for two different periods of time after presentment of the check by payee. It is significant that the second provision which extended the period provided for in (b) above, and eliminated the uncertainty existing where the exact time of presentment was not shown, was adopted three years after the law review article had been published. We believe it can safely be assumed that the interpretation placed on these two periods of time by the above cited article was known to the Legislature when the second period was amended. We therefore believe that Art. 342-704 should be construed as giving the drawee bank unrestricted power of revocation during the day of presentment.

Here the payee, Mrs. Dobbs, was advised by Baker on the day of presentment that payment on the check had been stopped. It is immaterial between appellees and Frost Bank as to whether Mrs. Sullivan signed the stop payment request or not. Although Art. 342-712 requires a stop payment order to be in writing, such requirement has been held to be directory and enacted for the benefit of the drawee bank, which could waive its benefits or require a strict compliance therewith. Stamford State Bank v. Miles, 186 S.W.2d 749 (Tex.Civ.App.—Eastland 1945, no writ).

It is also immaterial whether Baker told Mrs. Dobbs that Frost Bank was accepting the check conditionally or unconditionally. Sections 132 and 189 of the Negotiable Instruments Act, supra, provide that a check of itself does not constitute an assignment of any part of the funds of the drawer in the bank, and that the bank is not liable to the holder of the check unless and until it accepts or certifies the check; further, that the acceptance must be in writing and signed by the bank. These provisions have been upheld by the Texas Courts. See Kilgore National Bank v. Moore Bros. Lumber Co., 129 Tex. 92, 102 S.W.2d 200 (Tex.Com.App.1937); Banco Longoria, S. A. v. El Paso Nat. Bank, 415 S.W.2d 1 (Tex.Civ.App.—Eastland 1967, writ ref’d n. r. e.); Bradley Grain Co. v. Farmers & Merchants National Bank, 274 S.W.2d 178 (Tex.Civ.App.—Eastland 1955, writ ref’d n. r. e.).

Payment on this check was refused by Frost Bank at a time when it had the unconditional right to do so. The trial court erred in overruling Frost Bank’s motion for judgment non obstante veredicto. It is unnecessary for us to consider the question of election, or if the trial court abused its discretion in severing the third party action.

The judgment of the trial court is reversed and here rendered that appellees, V. E. Dobbs and wife, Charlotte Dobbs, recover nothing from appellant, Frost National Bank of San Antonio, by this suit.

      . The jury found substantially as follows:
      1. On November 6, 1964, Mrs. Sullivan did not sign and deliver to Louis Baker of Frost National Bank a “stop payment request” on the $3,000.00 check.
      2. The acceptance of the $3,000.00 check was not conditional on Mrs. Sullivan’s approving the payment of said check.
      3.Louis Baker did not advise Mrs. Dobbs prior to the deposit of the $3,000.00 check that the payment of said check was conditioned upon Mrs. Sullivan’s approval.

      . Repealed. Acts 1965, 59th Leg., Vol. 2, p. 1, ch. 721, § 10-102. Eff. June 30, 1966.

      . Acts 1967, 55th Leg. p. 1295, ch. 434, Art. 342-704, § 1, Vernon’s Ann.Civ.St.


author: O’QUINN, Justice.

text:
    Graydon W. CALLAN et al., Appellants, v. BARTLETT ELECTRIC COOPERATIVE, Inc., Appellee.
    No. 11553.
    Court of Civil Appeals of Texas. Austin.
    Jan. 3, 1968.
    Rehearing Denied Jan, 24, 1968.

      Dunnam, Dunnam & Dunnam, Vance Dunnam, Waco, Bowmer, Courtney & Burleson, Jim D. Bowmer, Bob Burleson, Temple, for appellants.
    Jones, Boyd, Westbrook & Lovelace, Dan E. Mayfield, Waco, for appellee.
   O’QUINN, Justice.

Graydon W. Callan suffered an electric shock in May, 1964, resulting in extensive personal injuries, while attempting to unshackle the drag line of a crane operated by another workman in the vicinity of high voltage electric lines owned by Bartlett Electric Cooperative, Inc., during construction of a dam across the Lampasas River at Stillhouse Hollow in Bell County.

Callan brought this suit seeking damages in the sum of $75,000, and Hartford Accident and Indemnity Company intervened to assert its claim in excess of $7,600 for payments made to Callan, or for his benefit, under the Workmen’s Compensation Law. (Article 8307, sec. 6a, Vernon’s Ann.Civ.Sts.)

After answering by general denial, subject to motions to quash and its pleas in abatement, Bartlett Electric on April 24, 1964, moved for summary judgment. Cal-lan and Hartford answered and opposed the motion, but did not move for summary judgment.

The trial court entered judgment for Bartlett Electric Cooperative, Inc., May 11, 1967, on a finding that the pleadings, depositions, admissions, and affidavits showed an absence of genuine issue of any material fact except as to amount of damages.

Callan and Hartford have appealed from the award of summary judgment. Appellants contend there is a genuine issue as to material facts and appellee is not entitled to judgment as a matter of law. (Rule 166— A, Texas Rules Civ.Proc.)

It is uncontradicted that Bartlett Electric Cooperative, Inc., constructed an electrical line to and on the construction site of the Stillhouse Hollow Dam on the Lampasas River and supplied electric power to Missouri Valley Constructors, Markham and Brown, and Gibraltar Construction Company. Appellant Graydon Callan was employed by Markham and Brown as a carpenter helper and swamper on a drag line.

Appellants pleaded that Bartlett Electric negligently maintained power lines transmitting high voltage electricity at a location where Bartlett Electric knew workmen were operating cranes and drag lines of great height. The allegations were that Bartlett Electric did not warn or give notice to the workmen that the high voltage lines had a zone of electric current around the lines that would transmit electricity into the cranes and drag lines upon coming within the charged zone. Appellants alleged that these facts were peculiarly within the knowledge of Bartlett Electric and known by Bartlett to be outside the knowledge of the ordinary workman. The pleadings further averred that such negligence proximately caused the severe injuries to Callan.

Bartlett Electric’s motion for summary judgment asserted that Callan had knowledge of the power lines and knew “if contact should be made by the crane and the power lines” this “would constitute a dangerous condition to him.” It was alleged that Callan appreciated the nature and extent of this danger and on the occasion of his injury voluntarily exposed himself to the danger. It was further asserted that Callan’s son, Jerry, who was operator of the crane at the time of his father’s injury, also knew about the power lines and knew that if the boom of the crane or its cable “should come in contact with the power lines” this would endanger his father. Additional allegations were that Jerry Callan appreciated the nature and extent of the danger and knew his father would be unshackling wooden forms from the cable, or drag line, of the crane and would be exposed to danger of electrical shock “should the crane or its cable make contact” with the power lines.

Neither the answer nor the motion for summary judgment replied specifically to the allegations by appellants that Bartlett Electric was negligent in not warning Cal-lan and other workmen that the power lines had a zone of electric current capable of transmitting electricity to a crane or boom without actual contact with the power lines.

Bartlett Electric filed an affidavit in support of its motion executed by William P. Alexander, Jr., who for 15 years past had been employed by Bartlett Electric as its chief systems engineer. Alexander swore that the “amount of voltage as carried in the lines * * * as a matter of scientific principle will not arc a distance of more than one-half inch from the line. * * * ” Alexander also swore that a person or an object capable of conducting electricity “would have to come within one-third to one-half inch” of the power line “to create an arc of electricity” from the line to the person or conductor.

Written depositions of both Graydon W. Callan and Jerry Callan were before the court. Both men swore that the crane boom had come to rest and was not moving at the time Graydon Callan sought to unshackle a wooden form from the cable. Jerry Callan swore the crane boom was not in contact with the power line and was not closer than six feet from the line. Jerry Callan declined to say that he saw an arc of electricity, but did testify that he heard some cracks. He testified he did not see fire fly, although he declared that “ * * * fire just jumped from that line over to that boom.” When asked if he was “taking precautions to keep the boom away from the wire,” Jerry Callan testified, “Yes, sir, I know to keep the boom away from wires * * * But it jumped fire * * * And they’ll sure do it, too.”

Jerry Callan also testified that when he saw his father fall, he left the crane cab at once to attend the stricken man. Jerry Cal-lan said that in his haste he left the motor of the crane running. The boom could not move automatically. For the boom to move, he testified, one had to manipulate it. After reaching his father, Jerry saw a mechanic enter the cab and kill the motor on the crane. At that time the boom was six feet or more away from the power lines.

Bartlett Electric argues that no evidence by appellants had the legal effect of raising a genuine issue of fact. As we view the record, there was an issue of material fact raised by the testimony of Jerry Callan that while the boom did not come closer than six feet to the power line, electric current reached the boom and injured Graydon Callan when he touched the shackles on the drag line, and by the contradictory testimony of Alexander that as a scientific principle electric current in the power line would not arc more than one-half inch to transmit electricity to the boom.

The testimony of Alexander in effect seeks to negative the theory of appellants’ case that Bartlett Electric was negligent in not warning Graydon Callan that the power lines were surrounded by a charged zone, a fact peculiarly within the knowledge of Bartlett Electric, and that injury could result without any contact whatever between the crane and the power line.

If the evidence of Alexander as the pronouncement of a purported scientific principle can be said to be conclusive on the court, then Jerry Callan’s version of what happened does not raise an issue of fact. We think that for the trial court to grant summary judgment in this case, under the pleadings, depositions, admissions, and affidavits on file, it was necessary to reject Jerry Callan’s testimony and to accept the scientific principle announced by Alexander as conclusive. We believe the law to be contrary and that the trial court erred in taking such action.

Alexander qualified as an expert witness in the field of electrical engineering. As an expert witness, Alexander was not entitled to such preferential treatment that no issue could be made by contradicting what he said. A jury is not bound to accept the testimony of an expert witness as true, and his opinion is entitled only to such weight as the jury may see fit to give it. Universal Life and Accident Ins. Co. v. Nanes, 92 S.W.2d 473 (Tex.Civ.App., Amarillo, writ dsmd.). Alexander was an expert testifying for his employer, Bartlett Electric, for whom he had worked fifteen years. The testimony of an expert, appearing as a witness for his master, is in the position of any interested witness. The weight of his expert testimony is for the jury and his credibility also is for the jury. Houston E. & W. T. Ry. Co. v. Southern Pine Lumber Co., 6 S.W.2d 418 (Tex.Civ. App., Beaumont, no writ).

The Supreme Court of Texas, in applying these principles to expert testimony, has said that “ * * * the occasion has to be at least highly exceptional when such testimony, even though not contradicted by an opposing expert, must be deemed true as a matter of law.” (Emphasis added.) Luttes v. State, 159 Tex. 500, 324 S.W.2d 167. The Supreme Court held that the testimony of the expert was but evidentiary and “never binding upon the trier of facts.” In this connection, the Court observed also that “The matter of credibility of the witness, that is to say, the extent to which his judgment, like that of all humans, however learned, may or may not be overconfident, zealous or ‘slanted’, is surely not altogether beyond the reach of the fact-finder.” 324 S.W.2d 167, 189, col. 1.

By terming Alexander’s statement a “scientific principle,” his testimony that electric current would not arc more than one-half inch acquires no additional legal weight. While it is a rule of law recognized by the courts of this State that evidence will be rejected if it is clearly contrary to undisputed laws of nature, the testimony must contravene such laws beyond any possible doubt. San Antonio & A. P. Ry. Co. v. Biggs, 283 S.W. 627 (Tex. Civ.App., Galveston, writ dsmd.); Missouri, K. & T. Ry. Co. v. Morin, 144 S.W. 1191 (Tex.Civ.App., Dallas, writ ref.). The rule has also been stated in American Jurisprudence that “ * * * where a court cannot say as a matter of law that the testimony of a witness is contrary to scientific principles or the law of nature, the question whether the testimony does so conflict should be regarded as one of fact for the jury to determine.” 30 Am.Jur.2d, Evidence, sec. 1086, p. 240, as documented by fn. 4.

In addition to the pleadings already noticed, appellants alleged that the power lines of Bartlett Electric “were constructed in an area dangerous to workmen, were hung too low, without insulation, and no warning of arcing potential or voltage was given to the workmen who were required to go about the lines in the performance of the tasks of their employment.”

Alexander described the power lines as three in number, mounted three and one-half feet below the top of poles standing 29 feet above ground. This placed the lines about 25½ feet above ground at the poles. Jerry Callan testified that the boom on the crane was 70 to 80 feet long. Alexander stated that the wires were “at or above the minimum clearances in accordance with the National Electrical Safety Code as published in March of 1948 by the National Bureau of Standards, Handbook 30” and were “in accordance with the accepted customs and practices of electrical companies in the Bell County area.” There was no testimony as to what constituted the minimum clearance prescribed by the safety code, nor as to the height of wires that conformed to accepted customs and practices in Bell County. The code was not placed in evidence. The only testimony on this point was the conclusion of Alexander that the wires did meet the code and did conform to local custom.

It was shown by Jerry Callan’s deposition that warning signs were erected in the area enjoining the workmen to “Be Careful,” “Stay Awake,” and “Keep Booms Out of Lines,” and reading, “Accidents Your Own Fault.” No evidence was offered of notice or warning that the lines were high voltage and were dangerous even without contact.

The Supreme Court of Texas, in answer to certified questions, held in 1924 that an electric company had the duty to exercise ordinary care to give workmen, employed by an independent contractor, “notice or warning of the danger of the boom coming in contact with, or in close proximity to, the uninsulated high-voltage wires * * * ” (Emphasis added) Galveston-Houston Electric Ry. Co. v. Reinle, 113 Tex. 456, 258 S.W. 803; Court of Civil Appeals opinion, 264 S.W. 783. The holding of the Reinle case that warning to the independent contractor would not discharge the duty of the occupier of the land to warn the contractor’s employees was expressly overruled in Delhi-Taylor Oil Corporation v. Henry, 416 S.W.2d 390 (Tex.1967). This question is not in the case at bar. In the Delhi-Taylor case the defendant company had warned the independent contractor, and this was held to be notice to the employee. There is no evidence of such warning in this appeal. The Reinle case remains significant for its recognition of danger from a boom coming “in close proximity to” uninsulated high-voltage wires.

In an opinion adopted by the Supreme Court, the Texas Commission of Appeals in 1922 recognized danger from “near approach” to high-voltage wires in this language:

“The public knows that it is dangerous to touch a live wire, but very few know that there exists danger of death from this powerful current by near approach to the wire so charged, without actually coming in contact with the wire. Only those who are engaged in the business, and those who have stood beside some inanimate form whose scorched and burned flesh bears mute evidence to its tremendous power, know this. Because it is a legal business and in the service of the public should not, and does not, release the defendant from being subject to all the requirements of the law, that it conduct that business in such manner that will result in reasonable protection to those on its premises either on business or by invitation, express or implied.” (Emphasis added)

McCoy v. Texas Power and Light Co., 239 S.W. 1105 (Tex.Com.App., opinion adopted by Sup.Ct., 1922).

In Southwestern Gas & Electric Co. v. Hutchins, 68 S.W.2d 1085 (Tex.Civ.App., Beaumont, writ dsmd.), the contention that the plaintiff was negligent as a matter of law was rejected by the court in holding that the issue was one for the jury under facts similar to the case at bar. The injured person and fellow workmen attempted to keep a cable from coming in contact with the power line, and it was their testimony the cable did not come closer to the wire than one foot. Defendant offered testimony that electricity could not jump over a distance of more than one-half inch.

The principle of arcing has been recognized by the courts of other jurisdictions. The Supreme Court of West Virginia observed in an early case that it is a natural law that the tendency of an electric current is to pass to the ground and in passing from the wire over an object on the ground it will arc or jump to that part nearest the wire. Owen v. Appalachian Power Co., 78 W.Va. 596, 89 S.E. 262. Arcing a distance of one to three feet was under consideration by the Supreme Court of Tennessee in Kingsport Utilities, Inc. v. Brown, 201 Tenn. 393, 299 S.W.2d 656, 69 A.L.R.2d 87. The California court of last resort recognized and considered the duty owing to a person ignorant of the propensity of electricity to arc or leap over intervening space when a metal object comes in close proximity to the power wire. Fairbairn v. American River Electric Co., 179 Cal. 157, 175 P. 637.

Whether testimony contradictory to evidence offered as a scientific principle will be accepted to raise an issue of fact for the jury should be decided in cases of doubt in favor of declaring an issue to exist. It has been said that if the court undertakes to go outside and test the evidence by reference to scientific principles, it would seem the court cannot properly close its eyes to the possibility that there may have been some facts or circumstances, not disclosed, that would reconcile the testimony of the witness with scientific principles. 21 A.L.R. 141, 146, col. 1.

We believe the trial court, since this was a case of summary judgment, should have given appellants the benefit of every reasonable inference that could be drawn in favor of their position. The underlying purpose of Rule 166-A was to eliminate patently unmeritorious claims, and was not intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact. Whatever doubts the trial court had as to the existence of genuine issue of material fact should have been resolved against the party moving for summary judgment. These principles are clearly stated by the Supreme Court of Texas in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

Bartlett Electric assigns twenty-five counter points of error. The first sixteen points are briefed together in support of the trial court’s award of summary judgment. We have discussed and overruled these points.

The last nine points, 17 through 25, claim error of the trial court in overruling Bartlett Electric’s motions to quash citation and pleas in abatement.

Most of the cases discussed in Bartlett Electric’s brief, holding citations to be fatally defective, pertain to cases of default judgment in which no appearance was made. The case at bar is not controlled by these authorities.

The record shows that Appellant Callan’s original petition complaining of his injury of May 2, 1964, was filed April 15, 1966, naming as defendant “Bartlett Rural Electrification Authority.” Citation was issued April 15, 1966, suggesting that the corporation might be served “by serving one of its officers at Bartlett, Texas.” The return shows that the citation was “delivered to Bartlett Rural Electrification Authority by serving one of its officers H. M. Keith” on April 28.

Bartlett Electric Cooperative, Inc., filed motion to quash the citation on May 23. The record does not disclose that a plea in abatement was filed as to this citation and service. Subsequently, on May 26, 1966, Callan filed his first amended petition naming as defendant “Bartlett Electric Cooperative, Inc. (being one and the same entity and same corporation as Bartlett Rural Electrification Authority.)” Callan alleged that “said defendant” had been “previously served with citation” and had answered.

On August 29, 1966, Bartlett Electric moved to quash a citation issued August 4 and in separate pleadings answered Callan and the intervenor by general denials. All motions to quash and pleas in abatement were overruled by the trial court January 23, 1967.

On appeal Bartlett Electric “contends that Bartlett Electric Cooperative, Inc., was never properly before the trial court until after the expiration of the two year Statute of Limitation.” We do not find from the record that Bartlett Electric at any time in the trial court affirmatively pleaded the statute of limitations. The motion for summary judgment filed April 24, 1967, does not affirmatively present the statute of limitations as a ground for judgment. The motion was addressed only to the merits of Callan’s action in tort.

The record shows that Bartlett Electric Cooperative, Inc., was the only power company having the word “Bartlett” as a part of its corporate name serving the Stillhouse Hollow Dam site on May 2, 1964, the date of Callan’s injury. H. M. Keith, or Horace Keith, was general manager of the corporation and lived at Bartlett. The home office of the corporation was in Bartlett. The corporation had been advised by the Secretary of State that as a “co-op” the company did not need to name a registered agent. The cause of action alleged by Callan in his original petition was identical with the cause alleged in his first amended petition. In response to requests for admissions, Bartlett Electric admitted it did “not know of any corporation or company known as ‘Bartlett Rural Electrification Authority.’ ”

It is settled law that if the intended defendant is sued under an incorrect name, a judgment will be valid after service on defendant under the misnomer, even though defendant has a name that is different. The rule and its converse were stated by this Court in Thomas v. Cactus Drilling Corporation of Texas, 405 S.W.2d 214 (Tex.Civ.App., Austin, no writ), as follows :

“If a person thought to be named A is sued and served under that name the judgment against him is valid even though his name is B. But if one has a cause of action against a person whose name is A and there is another person with the same or similar name, service on the person against whom one has no cause of action will not support a judgment against the one amenable to the cause of action asserted.” 405 S.W.2d 214, 216, col. 2.

We think it clear under the record that Callan and the intervenor intended to sue Bartlett Electric Cooperative, Inc., but by mistake called the defendant “Bartlett Rural Electrification Authority.” This is not a case of two separate corporations. There was no corporation or other entity named Bartlett Rural Electrification Authority. Only one cause of action was pleaded by Callan and only one electric company fit the description he applied to the defendant, although he called it by the wrong name. The misnomer was corrected in the first amended petition filed May 26, 1966.

The original petition was filed before the expiration of two years following Callan’s injury. The amended petition was filed about 24 days after the two-year period ended. But meanwhile Bartlett Electric Cooperative, Inc., had filed a motion to quash the citation issued the day suit was filed. In its motion the corporation admitted in effect that it was the defendant in the suit. Bartlett Electric thereafter was estopped and precluded from asserting that it was not sued until the amended petition was filed in which the corporation’s name was correctly stated. Weatherford, M. W. & N. W. Ry. Co. v. Crutcher, 141 S.W. 137 (Tex.Civ.App., Austin, no writ). The amended petition related back to the time of the filing of the original petition. Butler v. Express Publishing Co., 126 S.W.2d 713 (Tex.Civ.App., San Antonio, writ ref.), citing Jago v. Indemnity Ins. Co. of North America, 120 Tex. 204, 36 S.W.2d 980.

The rule in cases of this nature was stated in Wisconsin Chair Co. v. I. G. Ely Co., 91 S.W.2d 913 (Tex.Civ.App., Fort Worth, no writ) in the following language:

“The purpose of the statutes of limitation is to prevent the assertion of stale demands, and to effect such purpose they are wholesome and should be applied. We find many cases in which defendants are sued in such a manner that the improper designation of their names will not serve to toll the statutes of limitations, but under our broad and equitable system, it is held that where such a defendant makes his appearance, a subsequent amendment, correctly naming the defendant, relates back to the institution of the suit and tolls the statute.” 91 S.W. 2d 913, 914, col. 2, citing Grand Lodge A. O. U. W. of Texas v. Bollman, 22 Tex.Civ.App. 106, 53 S.W. 829 (Austin, writ ref.) and Weatherford, M. W. & N. W. R. Co. v. Crutcher, supra.

Of course, where recovery is sought against a new and different party, an amended petition does not fall within the rule that proper amendments of pleadings will toll limitation from the date suit was instituted. The difference between that principle and the application here involved is obvious. West v. Johnson, 129 S.W.2d 811 (Tex.Civ.App., Fort Worth, writ ref.).

Bartlett Electric’s counter points 17 through 25 are overruled.

The judgment of the district court is reversed and the cause is remanded for trial in conformity with this opinion.

Reversed and remanded.


text:
    Herman GUETERSLOH and Harold Phelan, Appellants, v. Clay TURNER, Appellee.
    No. 7738.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 25, 1967.
    Rehearing Denied Oct. 30, 1967.
    Phelan & Phelan, Levelland, Marilyn Phelan, Levelland, of counsel, for appellants.
    Gordon Treadaway, Lubbock, for appel-lee.
   CHAPMAN, Justice.

This is an appeal by defendants below, Herman Guetersloh and Harold Phelan, from a summary judgment against them rendered for Clay Turner in a suit upon a promissory note executed by appellants in Texas payable to Clay Turner at Lubbock, Texas, in the amount of $16,496.25, payable in three equal annual installments of $5,498.75, and providing that failure to pay any installment or any interest thereon when due, shall, at the option of the holder of said note, mature the full amount.

The first installment became due on January 1, 1966. The makers refused, after demand, to pay the installment or any interest thereon. The stated option was exercised to accelerate the maturity and suit was filed for recovery of the full amount, with interest and attorney’s fees.

Both parties filed motions for summary judgment. Defendants’ motion was denied and plaintiff’s granted.

The case is before us on one point, which asserts the court erred for the reason “ * * there was no consideration for the note as a matter of law.” We hold the point is without merit.

The defense urged as failure of consideration is that: “The note was given in payment of a commission on sale of real estate in the State of Colorado at a time when Plaintiff was not a licensed real estate broker or salesman in that State. * * * ” It is without controversy in the record that appellee was a duly licensed real estate broker in Texas.

The commissions for which the note was executed represented purchases by appellants of four separate tracts of land in Colorado belonging to F. J. Hohensee of Colorado; J. H. Lamborn of Colorado; J. C. Lamborn of Panhandle, Texas; and Hoss Inman and his brother, Jerry Inman, of Colorado.

In plaintiff’s Request for Admission of Facts appellants admitted that the sales contract on the Hohensee property provided appellee would be entitled to a commission of $8,680, payable by purchasers; on the J. H. Lamborn land he would be entitled to $5,440, payable by purchasers; on the J. C. Lamborn land he would be entitled to $640, payable by purchasers; and on the Inman land he would be entitled to $7,315, payable by purchasers. These commissions total $22,075, and appellants admitted in such request that: “The total of all real estate commissions to Clay Turner provided for in the four sales contracts was $22,075,” and that after the deals were closed appellants paid to appellee “* * * at Level-land, Texas, one-fourth of the total agreed commission or a sum of $5,518.75, and on March 22, 1965, executed and delivered to Clay Turner at Levelland, Texas, a promissory note, a true copy of which has been attached to this Request for Admission and marked ‘Exhibit A’ for $16,496.25.” When the amount of the note is added to the one-fourth cash paid it totals $22,015, or $60 less than that provided for in the four sales contracts. In other words, the note is $60 less than the agreed figures show it should have been, but since it is in favor of defendants, they would be in no position to complain in that regard.

Article 5933, Vernon’s Ann.Tex.Civ.St., provides, inter alia, that every negotiable instrument is deemed prima facie to have been issued for a valuable consideration and value is any consideration sufficient to support a simple contract.

The installment note in controversy purports upon its face to have been given for valuable consideration. It has been held that the introduction in evidence of a note purporting on its face to have been given for valuable consideration makes out a prima facie case for appellee, which would be defeated by appellants establishing the nonexistence of the consideration. Brown v. Weir, 293 S.W. 916 (Tex.Civ.App.-Eastland, 1927, no writ); Scoggins v. Furst & Thomas, 9 S.W.2d 405 (Tex.Civ.App.-Texarkana, 1928, writ dism’d). See also Kothmann v. Southwest Co., 92 S.W.2d 272 (Tex.Civ.App.-San Antonio, 1936, writ dism’d); Bedner v. Dunigan Tool & Supply Co., 176 S.W.2d 220 (Tex.Civ.App.-Eastland, 1943, affirmed 142 Tex. 663, 180 S.W. 2d 919 [1944]).

Appellants contend their agreement to pay appellee a commission for procuring the land in Colorado for their purchase at a time when he did not have a license in that state to sell real estate constituted an invalid contract, therefore the execution of the note carrying into effect in a new form an invalid contract does not give it validity, citing Oldham v. Briley, 118 S.W.2d 797 (Tex.Civ.App.-Eastland, 1938, no writ). That case does say: “It is well settled, that when an original contract is illegal, any subsequent contract, which carries it into effect, is also illegal.” However, that case was reversed by the Supreme Court in Briley v. Oldham, 132 Tex. 550, 124 S.W.2d 854 (Tex.Com.App.-1939, opinion adopted). In doing so, the Court said: “Irrespective of the vice of illegality which affects the assumed debt, he is bound by his promise to pay it as part of the consideration for the land which he acquires.”

The note in controversy admittedly was executed by appellants in Texas. The burden of proof on the issue of no consideration rested on the makers. Lewis v. Ada Employees Credit Union, 383 S.W.2d 864 (Tex.Civ.App.-Houston, 1964, writ ref’d n.r.e.).

This court has held: “A valuable and sufficient consideration for a contract may consist of either a benefit to the promisor or a loss or detriment to the promisee.” Lassiter v. Boxwell Brothers, Inc., 362 S.W.2d 884 (Tex.Civ.App.-Amar-illo, 1962, no writ). Appelleee furnished his services as a realtor, at least part of which services were performed in Texas. Appellants received the benefit of the purchase of the land, for which they agreed to pay a commission.

It has been held in this state in Sherrill v. Phillips, 405 S.W.2d 627 (Tex.Civ.App.-Austin, 1966, writ ref’d n.r.e.) that: “There is no law of which we are aware to the effect that a real estate broker in Texas cannot act as broker in Texas in selling or offering for sale to a Texan property located in Arkansas.”

In the case just cited and quoted from the property sold was in Arkansas and in that state, just as in Colorado, the statutes of Arkansas make it unlawful for anyone to engage in the business of selling real estate in Arkansas without obtaining a license in accordance with its laws. See also Richland Development Company v. Staples, 295 F.2d 122 (5th Circuit, 1961).

From the authorities cited and for the reasons stated, we hold the summary judgment record failed to show a failure of consideration as a matter of law in the execution of the note in controversy.

Accordingly, the judgment of the trial court is in all things affirmed.


author: WALTER, Justice.

text:
    Wadad WAHEED, Appellant, v. Sled WAHEED, Appellee.
    No. 4196.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 20, 1967.

      R. J. Balch, Seymour, for appellant.
    T. W. Bullington, Munday, for appellee.
   WALTER, Justice.

Sied Waheed sued Wadad Waheed for a divorce and contended there was no community property. His wife filed a cross action asserting there was a community estate and asked that it be divided. Judgment was rendered dissolving the bonds of matrimony and decreeing that the parties owned no community property. Mrs. Waheed has appealed.

Mrs. Waheed contends the court erred in granting the divorce because the evidence introduced by her husband in support of his alleged grounds for a divorce, namely, cruel treatment, was not “full and satisfactory” as required by Article 4632 of Vernon’s Ann.Tex.Civ.St. We agree with appellant’s contentions that the findings of the trial court in granting a divorce are not binding on the appellate court as in other proceedings. However, after considering the evidence, we have concluded that the court’s judgment dissolving the bonds of matrimony was rendered upon full and satisfactory evidence.

It was not necessary for Mr. Waheed to have shown actual violence or actual danger to his life under his allegations of cruelty. The test was whether or not Mrs. Waheed’s conduct was of such a nature as to render their living together insupportable. Grisham v. Grisham, Tex.Civ.App., 255 S.W.2d 891. In Bartels v. Bartels, Tex.Civ.App., 227 S.W.2d 260 (no writ history), the court said:

“ ‘The question as to whether the further living together of the parties is insupportable is peculiarly one of fact to be determined by the court or jury trying the case. Much latitude is allowed the court or jury in passing upon the grounds relied upon for divorce. The cruel treatment referred to in the statute has often been held to include injury to the feelings and sensibilities, as well as to physical acts of violence. It includes outrages upon the feelings * * * or a series of studied vexations and deliberate provocations without apprehension of personal violence.’ Blackburn v. Blackburn, Tex.Civ. App., 163 S.W.2d 251, 255.”

Mrs. Waheed also contends the court erred in holding there was no community property because there was insufficient evidence to support such a judgment. We hold there is merit in this contention. Article 4619 of V.T.C.S. is, in part, as follows:

“Sec. 1. All property acquired by either the husband or wife during marriage, except that which is the separate property of either, shall be deemed the common property of the husband and wife; and all the effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects or gains, unless the contrary be satisfactorily proved.”

In Tarver v. Tarver, 394 S.W.2d 780, the Supreme Court said:

“An evaluation of the legal rights of the parties must begin with that part of Article 4619, Sec. 1, Vernon’s Texas Civil Statutes, which provides: ‘ * * * all the effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects or gains, unless the contrary be satisfactorily proved. * * * ’ The plain wording of the statute creates a re-buttable presumption that all property possessed by a husband and wife when their marriage is dissolved is their community property and imposes the burden upon one asserting otherwise to prove the contrary by satisfactory evidence. Wilson v. Wilson, 145 Tex. 607, 201 S.W.2d 226, 227 (1947); Chapman v. Allen, 15 Tex. 278, 283 (1855).
The general rule is that to discharge the burden imposed by the statute, a spouse, or one claiming through a spouse, must trace and clearly identify property claimed as separate property, Schmeltz v. Garey, 49 Tex. 49, 61 (1878); Chapman v. Allen, 15 Tex. 278, 283 (1855); Lindemood v. Evans, Tex.Civ.App., 166 S.W.2d 774 (1942), writ refused; and that when the evidence shows that separate and community property have been so commingled as to defy resegregation and identification, the burden is not discharged and the statutory presumption that the entire mass is community controls its disposition.”

The Waheeds were married January 23, 1963 and separated February 28, 1967. The evidence conclusively shows that at the time of his marriage, Mr. Waheed owned the following property, as shown by his auditor’s report:

“STATEMENT OF ASSETS AND LIABILITIES
as of January 1, 1963
ASSETS:
Cash on Hand 17,000.00
Cash in Bank 1,058.66
Inventory (Merchandise) 32,527.29
Furniture and Fixtures 3,291.92
Brick Buildings 15,000.00
Less; Depreciation (5,421.06)
Residence (Frame) 8,500.00
Frame Rent House 9,430.00
Less: Depreciation (1,312.50)
1961 Buick 1,595.00
Furniture 3,000.00
Accounts Receivable 3,496.82
Boat and Motor 1,000.00
1953 Ford 200.00
TOTAL NET ASSETS 89,366.13
Liabilities:
NOTES:
Kay Waheed (Store) 2,000.00
Cameron Lumber Co.
Munday, Texas (Rent House) 5,921.10
TOTAL LIABILITIES 7,921.10
NET WORTH:
as of 1-1-63 81,445.03
TOTAL LIABILITIES AND NET WORTH 89,366.13’

As shown by the auditor’s report Mr. and Mrs. Waheed had the following property on February 28, 1967:

“SIED AND WADAD WAHEED MUNDAY, TEXAS
STATEMENT OF ASSETS AND LIABILITIES:
as of February 28, 1967
ASSETS:
Cash in Bank 3,233.74
Cash in Savings Account (F and M Bank, Seymour Texas) 10,000.00
Inventory (Merchandise) 18,106.20
Furniture and Fixtures 3,291.92
Brick Buildings 15,000.00
Less; Depreciation (9,291.92)
Frame Residence 8,750.00
1964 Buick 1,595.00
Furniture 3,000.00
Accounts Receivable (Store) 250.00
Note-Ray Hardin 2,410.00
1960 Ford 200.00
TOTAL ASSETS 56,544.94
LIABILITIES:
Note;
Cameron Lumber Co. Waco, Texas (Home) 2,266.10
TOTAL LIABILITIES 2,266.10
NET WORTH:
as of 2-28-67 54,278,84
TOTAL LIABILITIES AND NET WORTH 56,544.94.”

We conclude there was insufficient evidence to sustain the finding that all of the assets listed above in the 1967 statement were Mr. Waheed’s separate property.

Appellee owned a 1961 Buick, a boat and motor before marriage. During marriage, in March or April 1964, he traded the ’61 Buick, boat and motor and $1900.00 in cash for the' 1964 Buick. It is not clear whether the $1900.00 came from separate, .community or commingled ¡property.

Mr. Cecil Andrews, appellee’s accountant, testified that the $10,000.00 in the .Seymour Bank listed ip the 1967 statement came “from the store from the sales within the store”, and that he could not determine if this money was profit or capital. He further testified that it' was impossible for him to determine if the inventory listed in the 1967 report came from profit investment or capital investment.

In Hardee v. Vincent, 136 Tex. 99, 147 S.W.2d 1072 (Com.Apps.1941), the court said:

“It was incumbent upon Mrs. Vincent to show that the money used in the purchase of additional stocks of merchandise and fixtures came out of her separate estate. She attempted to do this by showing that the business belonged to her separate estate at the time of the conveyances to her on December 16, 1935. The case was tried on March 14, 1938, some two years and three months after the conveyances from Vincent. During such time, the stocks of merchandise and fixtures were bought and sold, thus presenting the all-important issue as to whether the money used in the purchases of such additional stocks of merchandise and fixtures was profits from the business or capital investment.
Absent proof that the money so used came out of the capital investment, which is the state of the record, the presumption of the law, that property acquired by either husband or wife during marriage belongs to the community estate of the husband and wife, controls in the present case. It follows from what has been said that the stock of merchandise and fixtures acquired after December 16, 1935, belonged to the community estate of Vincent and wife and is liable for the debts of the husband.”

Upon a retrial of this case, if there is an issue based upon the fact that community funds were used to improve the husband’s separate real estate, the amount of reimbursement should be determined by the amount of enhancement in value rather than the amount spent by the community. Lindsay v. Clayman, 151 Tex. 593, 254 S.W. 2d 777 (1952).

In so far as the judgment dissolves the bonds of matrimony between Mr. and Mrs. Waheed, the judgment is affirmed. In so far as it holds that the parties owned no community property, the judgment is reversed and the cause is remanded.


author: PARKER, Justice.

text:
    Douglas Lee ROSS, Appellant, v. NATIONAL SURETY CORPORATION, Appellee.
    No. 6949.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 21, 1967.
    Barber, Seale & Stover, Jasper, for appellant.
    Weller, Wheelus & Green, Beaumont, for appellee.
   PARKER, Justice.

This is a workman’s compensation case. Plaintiff, Ross, sued defendant insurance company for benefits by reason of an injury alleged to have been sustained on May 24, 1966 while employed by Mae’s Discount Center, Inc. in Orange. The jury only answered three special issues, finding that (Special Issue No. 1) the plaintiff did not sustain an injury; (Special Issue No. 2) his disability is due solely to diseases, natural causes, and prior injuries wholly disassociated with his injury of May 24, 1966, if any; and (Special Issue No. 3) payment of compensation in weekly installments instead of a lump sum will result in manifest hardship, injustice and injury to the plaintiff. Judgment was entered that plaintiff take nothing. The parties will be referred to by their trial court designations.

Plaintiff has points of error contending the trial court erred in entering judgment based on the jury’s respective answers to Special Issues Nos. 1 and 2(a) because there is no evidence to suport such answers, (b) because there is insufficient evidence to support such answers, and (c) because such are so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust.

In considering the “no-evidence” points of error, only the evidence favorable to the jury’s findings is considered.

Plaintiff testified he injured his back, private parts, etc. on May 24, 1966 when lifting a case of canned milk, not striking his back, not being struck on the back, no blow — claiming a lifting or strain type injury. No one saw him injured. He worked the remainder of the day. Dr. Wynne Pearce was his personal physician, having treated him for ulcers in November of 1965, from which he recovered. Plaintiff testified he went to see-Dr. Pearce the day after he claimed to have been injured. Dr. Pearce testified he did not see Ross, the plaintiff, after the alleged injury until June 1, 1966. Plaintiff did not give him a history of hurting his back, but mentioned liftjr^g a case of milk. He was complaining only of orchitis, a swelling of a testis. Plaintiff did have orchitis. Dr. Pearce testified orchitis is not caused by a lifting injury or strain but is a condition caused by infection, by trauma to or by a striking of the testis. Dr. Pearce “prescribed some antibiotic, which is routine” and the use of a suspensory. Then Dr. Pearce saw him on June 3, 1966. On that day Dr. Pearce sent a written statement to the employer stating, “The bearer, Mr. Douglas Ross, has been discharged by me and is able to resume work.” Plaintiff never asked anyone at Mae’s to send him to Dr. Howard Williams, that company’s doctor, or any doctor.

Dr. Stephenson testified at length as to his examination of plaintiff on March 28th, 1967, finding no muscle spasm, no back injury and no incapacity. Plaintiff’s “no-evidence” points of error are overruled. Considering all evidence and the entire record, plaintiff’s other points of error are overruled.

Judgment of the trial court affirmed.


author: WILSON, Justice.

text:
    Dorothy Patricia LOVE, minor, Appellant, v. B. L. GRIZZAFFI, Appellee.
    No. 4676.
    Court of Civil Appeals of Texas. Waco.
    Dec. 28, 1967.
    Rehearing Denied Jan. 18, 1968.

      John M. Gillis, 'Dallas, for appellant.
    Thompson, Coe, ¡.Cousins & Irons, William E. Fullingitny. Dallas, for appellee. ,
   OPINION

WILSON, Justice.

Defendant appeals from a judgment in a non-jury trial for damages to plaintiff’s building into which defendant drove her car. The court found as facts that the damage was proximately caused by defendant’s negligence in driving at an excessive rate of speed, in failing to make timely application of her brakes, and in stepping on the accelerator instead of the brake.

Defendant argues the court erred in overruling her motion for continuance, alleging absence of a witness.

The motion does not conform to the requisites of Rule 252, Texas Rules of Civil Procedure: It does not state the diligence used to procure the testimony of the witness, but alleges only “inability to obtain depositions.” It does not show materiality or state what defendant expected to prove by him, averring only the conclusion, “that it will show an intervening cause.” It does not state the name or residence of the absent witness. It is doubtful that it may be said the defendant made an affidavit as the rule prescribes.

It was not an abuse of discretion to overrule the motion in such form. Fritsch v. J. M. English Truck Line, 151 Tex. 168, 246 S.W.2d 856; Cole v. Waite, 151 Tex. 175, 246 S.W.2d 849; Jim Sanders Ford Co. v. Ontiveros, Tex.Civ.App., 389 S.W.2d 614; Panhandle Broadcasting Co. v. Cercy, Tex. Civ.App., 363 S.W.2d 792; Major v. Lord, Tex.Civ.App., 357 S.W.2d 820, writ ref., n. r. e.

Because the evidence shows defendant stepped on the accelerator rather than brake pedal (and since this conduct is not specifically pleaded), defendant says there is no evidence she failed to apply her brakes. In our opinion evidence that she applied her foot to the accelerator and not the brakes, after which she ran into a brick building causing $600 damages, is evidence she failed to apply, or make timely application of the brakes. The contention is rejected.

Complaint is made of admission of testimony of the investigating officer that defendant told him she “got her foot on the accelerator instead of the brake,” hitting the building as she prepared to park. The objection urged is that it is hearsay. It was an admission, and the objection was properly overruled. II McCormick & Ray, Texas Law of Evidence (1956) Sec. 1122, p. 20.

Appellant has a point that the court erred in failing to tax guardian ad litem fees against appellee. There is no record to sustain the point. All points have been considered and are overruled.

Affirmed.


author: GRISSOM, Chief Justice.

text:
    Carolyn STAPLES, Appellant, v. Richard STAPLES, Appellee.
    No. 4113.
    Court of Civil Appeals of Texas. Eastland.
    July 7, 1967.

      Schulz & Hanna, Malcolm C. Schulz, Yates & Yates, Jack M. Yates, Abilene, for appellant.
    Dan Abbott, Abilene, for appellee.
   GRISSOM, Chief Justice.

On July 29, 1965, the Domestic Relations Court of Taylor County granted Carolyn Staples a divorce from Richard Staples. The judgment recited that they had agreed on child support, custody and visitation rights. It ordered the father to pay $225.-00 per month to the mother for support of their three children. It gave custody to the mother but provided that the father should “have the right to visit with said chidren in the home where they are residing each Saturday and/or Sunday of each week hereafter, after having given not less than four (4) days written notice of his intention and desire to visit with such children, which notice shall be addressed to their custodian.” (Emphasis ours). It ordered the mother to not “permanently” remove said children from “Harris” County without written permission of the court, after notice to their father. Thereafter, the mother took said children with her to Alabama without the written permission of the court and without notice to the father. However, it was not established that she “permanently” removed them or that her domicile had been changed and she has not been held in contempt.

On May 10, 1966, Richard Staples filed a motion in said court which was labeled “motion to reduce child support.” It was filed in the divorce case, with the same number and designation of parties. He alleged therein that since rendition of the divorce judgment conditions had materially changed; that Carolyn Staples, contrary to said order, had On-March 15, 1966, taken said children out of Texas and that he had found them in Alabama on April 31st. He alleged that he ’had thereby been deprived of the visitation fights granted him in the divorce judgment; that Carolyn Staples had disobeyed said order and that she was living with her parents and was gainfully employed. He further alleged that he had married again; that his new wife had children and that the additional money required to provide for his present family made it difficult to continue paying $225.00 per month for support of the children of his first marriage. He asked that support payments be reduced to $60.00 per month. He sought to have Carolyn held in contempt of court. He further sought to have the court award him reasonable visitation rights with his minor children and that said rights be specifically stated in the order. He prayed that Carolyn be cited; that the former judgment be so modified and that the court grant him “specific” visitation rights and general relief.

After citation and notice to Carolyn Staples, said court on June 14, 1966, heard said motion. Carolyn testified in the proceeding here on appeal that upon a hearing of Richard Staples’ said motion to modify the divorce decree that she had appeared and testified relative to the additional visitation rights there sought by Richard Staples. A record of that hearing is not before us. The court modified the provisions of the divorce judgment fixing the visitation rights of the father. The modified judgment contained a recital that it appeared to the court that Richard Staples’ right of reasonable visitation, as formerly ordered, had caused hardship and the court found that such right should be modified, as follows:

“IT IS THEREFORE THE ORDER, JUDGMENT and DECREE of this Court that hence forth and until the further Order of this Court, the Defendant, Richard Staples, shall have reasonable visitation with said minor children at their present address in Gadsden, Alabama, or wherever they may be found hereafter^ on each weekend, from Saturday at 10:00 a. m. to Sunday at 6:00 p. m., provided that the Defendant, Richard Staples shall- give the Plaintiff, Carolyn Staples, at’l&st a seventy-two (72)-hcmr notice of his wish to exercise his reasonable visitation right with said children, on any particular weekend. And such reasonable visitation right may be exercised by said Defendant away from the home of said Carolyn Staples.
IT IS THE FURTHER ORDER of this Court that said Richard Staples shall have reasonable visitation with said minor children commencing July 11, 1966, to and inclusive of July 26, 1966; and the Plaintiff shall place said minor children on a commercial airline on the former date, to its destination in Dallas, Texas, where the Defendant will meet said children, and he shall return them to the Plaintiff by like transportation on the 26th day of July, 1966. Like visitation each July hereafter is hereby granted to Richard Staples with said minor children, until the further Order of this Court; and such transportation shall be at the expense of Richard Staples.”

It is evident from the record that Carolyn Staples refused to comply with said judgment so modifying the visitation rights of the father, whereupon, Richard Staples filed suit in an Alabama court and it ordered Carolyn Staples to comply with said modified order of the Texas Court, dated July 5, 1966. On July 22, 1966, Carolyn Staples filed an amended motion in the same Texas court and case to set aside said order of July 5, 1966. This is an appeal from an order overruling her said motion. She alleged therein that Richard Staples’ pleadings did not support said modified judgment of July 5, 1966, which, she says, changed “custody” of the children, which had to be done in a new and independent case. She said she should have been more fully apprised by her former husband in said motion of any change in conditions calling for a change of “custody”. She therein made the contention, which she reiterates on this appeal, that said judgment modifying the visitation rights of Richard Staples changed the “custody” of the children, a matter which must be determined in a new and independent action and which cannot be changed in the divorce case, wherefore, she contends, said court did not have jurisdiction to render the judgment of July S, 1966, because said children were residents of Alabama and not before the court. An adjudication of custody in a divorce judgment may. be modified if it is shown that since rendition of the divorce judgment conditions have materially changed so that the welfare of the children requires a change of “custody”. Ex parte Eaton, 1S1 Tex. 581, 252 S.W.2d 557, 560. See also Ex parte Mullins (Sup.Ct.) 414 S.W.2d 455. It is pertinent here to state, however, that we do not think “custody” has been changed, only the father’s visitation rights. Visitation rights, ordinarily, may be changed in the divorce court. This record does not conclusively show that appellant’s or the childrens’ domicile has been changed from Texas to Alabama. Although the children were found in Alabama with their mother, this record does not conclusively show that she intended to change her domicile to Alabama. Thereafter Carolyn Staples filed a motion in the same court and case to set aside the modification order of July 5, 1966. Richard Staples denied said contention of Carolyn. He alleged that said court had jurisdiction to modify his visitation rights; that Carolyn was before that court in response to notice and citation served upon her; that she appeared in said court on June 27, 1966; and testified at a hearing of his said motion concerning his visitation rights and did not attack its jurisdiction. These facts were substantially established by this record and appellant’s testimony on the hearing of her motion to set aside the order of July 5, 1966, which modified appellee’s visiting rights as fixed in the divorce judgment, she testified in substance that she perspnally appeared at said hearing and testified relative to the merits of appellee’s motion to change his visitation rights. He alleged that Carolyn refused to follow theíttfódified order providing for transportati&n of the children to him by air. Carolyn Staples’ motion to set aside the order of July 5, 1966, was based on her contention that the court did not have jurisdiction to alter the “custody” provision of the divorce judgment because she and the children were residents of Alabama. As stated, this record does not show a change of “custody” and it does not conclusively show that their domicile was changed to Alabama. Carolyn Staples has appealed from the order overruling her motion to set aside the order of July S, 1966, modifying appellee’s right to visit his children, as said right was fixed in the divorce judgment.

Appellant ably contends that said court, under the circumstances mentioned, did not have jurisdiction to render the judgment of July 5, 1966, which we hold changed the visitation rights of the father and not custody. It is evident that while the mother had said children in Alabama that the visitation rights awarded their father in the divorce judgment could not be exercised and that, in the absence of compliance by Carolyn Staples with the modifying order of July 5, 1966, the father’s right of visitation was, as a practical matter, nil, he being in Texas and they in Alabama.

We think appellant’s contention that the court was without jurisdiction to modify what she calls the “custody” provision of the divorce judgment, was in effect determined against her by our Supreme Court in Leithold v. Plass, 413 S.W.2d 698. There, the father obtained an increase of the visitation rights which had been granted in a foreign divorce judgment. The increase was granted by the Juvenile Court of Dallas County, Texas, and the mother appealed. Our Supreme Court held that the judgment of the'Juvenile Court modified the divorce decree with respect only to “visitation rights”*; that it did not alter the “custody” provision of the divorce judgment and that there was sufficient evidence of a change ;qí. conditions to support modification of the visitation rights. We conclude that the order here appealed from modified visitation rights, not custody, and that, under the circumstances mentioned, said court had jurisdiction to render the judgment so modifying his visitation rights and, since we have no record of the proceedings that were the basis of said modification order, in support of that judgment, we presume there was sufficient evidence of a change of conditions to support it. We hold that appellant has not shown that said court did not have jurisdiction to modify appellee’s visitation rights. See St. Louis & S. F. R. Co. v. Hale, 109 Tex. 251, 206 S.W. 75; Bates v. Smith, 155 Tex. 443, 289 S.W.2d 215; Cuellar v. Cuellar, Tex.Civ.App., 406 S.W.2d 510; Schwartz v. Jacob, Tex.Civ.App., 394 S.W.2d 15. Although not carefully stated, the motion contained sufficient allegations of a change in conditions to support the order modifying appellee’s visitation rights. It showed that appellant’s acts had deprived appellee of the visitation rights granted him in the divorce judgment. In the divorce case, Carolyn had to invoke the jurisdiction of said Taylor County, Texas, court to determine divorce, custody and visitation rights; she had to allege and prove therein that she was a resident of Taylor County, Texas. She was ordered by that judgment to not “permanently” remove the children from Texas without first doing certain things which she has not done. Although she and the children were found in Alabama, this record does not conclusively show that their legal domicile was changed from Texas to Alabama. See Bowman v. Bridges, Tex.Civ.App., 220 S.W.2d 512, 515; Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 878, 4 A.L.R.2d 1; Peacock v. Bradshaw, 154 Tex. 68, 194 S.W.2d 551 and Beckmann v. Beckmann, 358 Mo. 1029, 218 S.W.2d 566, 9 A.L.R.2d 428, 432. Our Supreme Court’s statement in Leithold v. Plass, 413 S.W.2d 698, at page 701, is pertinent here: “Technical rules of practice and pleadings are of little importance in determining issues concerning the custody of children”, citing Conley v. St. Jacques, Tex.Civ.App., 110 S.W.2d 1238, 1242, (Writ Dismissed), and Williams v. Guynes, Tex.Civ.App., 97 S.W.2d 988. Appellant does not bring to us a record of the hearing of appellee’s motion for a change in his visitation rights, which was necessitated by appellant’s removal of the children from Texas, and at which she voluntarily appeared and testified concerning the merits of his motion and in which she subsequently filed said motion to set aside the order of July 5, 1966.

All of appellant’s points are overruled. The judgment is affirmed.