author: MURRAY, Chief Justice.

text:
    CREWS WELL SERVICE, Appellant, v. The TEXAS COMPANY, Appellee.
    No. 13910.
    Court of Civil Appeals of Texas. San Antonio.
    May 2, 1962.
    Rehearing Denied June 6, 1962.
    Keys, Russell, Keys & Watson, Corpus Christi, for appellant.
    Kleberg, Mobley', Lockett & Weil, Corpus Christi, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by The Texas Company against Thomas W. Crews, d/b/a Crews Well Service, seeking recoupment under an indemnity provision of an oil field work-over contract. The Texas Company had summoned Crews Well Service, hereinafter called Crews, to work-over a producing oil and gas well. One of Crews’ employees, Hilo Del Bosque, died as a result of burns received while performing work on the well, and his widow and children brought suit against The Texas Company in the Federal Court at Corpus Christi, Texas, to recover damages for Del Bosque’s death. The Texas Company called upon Crews to defend the suit, but Crews refused. Thereafter, The Texas Company settled the suit for the total sum of $13,-321.04, $5,000.00 of which was paid to the widow and dependents of Del Bosque, and $8,821.04 to Texas Employers Insurance Association as reimbursement for sums paid by it under the Workmen’s Compensation laws for the injuries to and death of Hilo Del Bosque. The Texas Company sought full reimbursement, plus the sum of $1,680.49 as attorney’s fees, court costs and other expenses.

The trial was to the court without a jury and resulted in a judgment in favor of The Texas Company in the sum of $15,001.49, from which judgment Crews has prosecuted this appeal. No findings of fact or conclusions of law were requested or made.

The agreement of indemnity executed by Crews in favor of The Texas Company provided in part as follows:

“1. Contractor shall, at Contractor’s expense: * * *
(b) Fully protect, indemnify and hold Company harmless against all liability and cost, expense, damages, and loss on account of (1) injury to or death of Contractor, his agents and his employees, * * * arising out of or in connection with the performance of said work, or the use of the materials or equipment furnished for or in connection with said work; * *

Appellant contends that the trial court erred in rendering judgment in appellee’s favor:

“(1) Because the indemnity provision of the contract did not contemplate indemnification of appellee for its own negligent acts which were the sole cause of the injuries and death of Del Bosque, or
“(2) Which were a contributing cause of such injuries and death.
“(3) Because the indemnity provision of the contract is too broad and general to be enforceable, because it did not specify, either expressly or by implication, that appellant would indemnify appellee for its own negligence, which was the sole cause or a contributing cause of the injuries and death of Del Bosque, and because it did not refer to any specified operation or instrumentality.”

Under the contract, appellee had the option to call in Crews to service and work-over any well or wells on appellee’s lease anywhere in its southwestern district of Texas, and in keeping with this option ap-pellee did call in appellant to work-over the well, on which job Del Bosque received injuries which caused his death. This well was known as “No. 29, Texas — Tijerina Well.” Fred Reinke was appellee’s drilling foreman on this well, as well as a number of other wells. Appellant’s work on this well was to be paid for an hourly basis, and was to be done “in accordance with the provisions hereof and with plans, specifications, work orders, or instructions given by Company to Contractor on each said job or operation.”

Appellant contends that we should construe this contract of indemnity strictly in favor of the indemnitor and against the in-demnitee. In discussing this matter, Associate Justice Walker, speaking for the Supreme Court, in Mitchell’s, Inc, v. Friedman, 157 Tex. 424, 303 S.W.2d 775, had this to say:

“It is somewhat misleading to say that an indemnity agreement must be strictly construed in favor of the in-demnitor and against the indemnitee. Although the distinction has not been frequently noted, the doctrine of stric-tissimi juris is not a rule of construetion but is a principle of sitbstantive law which is applicable after the intention of the parties has been ascertained by ordinary rules of construction. See note to Houston Fire & Casualty Ins. Co. v. E. E. Cloer, General Contractor, 5th Cir., 217 F.2d 906; Covey v. Schiesswohl, 50 Colo. 68, 114 P. 292; Marshall-Wells Co. v. Tenney, 118 Or. 373, 244 P. 84, 45 A.L.R. 1382; American Chain Co. v. Arrow Grip Mfg. Co., 134 Misc. 321, 235 N.Y.S. 228 ; 42 C.J. S. Indemnity § 8, p. 574. In determining the rights and liabilities of the parties, therefore, their intention will first be ascertained by rules of construction applicable to contracts generally. At this point neither party is favored over the other simply because their agreement is one of indemnity. After the intention of the parties has been determined, however, the doctrine of stric-tissimi juris applies and the liability of the indemnitor under his contract as thus interpreted will not be extended beyond the terms of the agreement.”

When the ordinary rules of construction are here applied, it is clear that the parties to the indemnity contract intended that appellant fully protect, indemnify and hold appellee harmless against all liability and damages resulting from the work-over job undertaken by appellant, regardless of how it arose or what negligence caused it. We quote further from Mitchell’s, Inc. v. Friedman, supra:

“It is not necessary, therefore, for the parties to say in so many words that they intend to protect the indemni-tee against liability for negligence. An obligation to hold harmless from claims, liability or damage resulting from a specified operation or instrumentality will be enforced in accordance with its terms even though the indemnitee may thereby be relieved of the consequences of his own negligence. See also Houston & T. C. R. Co. v. Diamond Press Brick Co., 111 Tex. 18, 222 S.W. 204, Id., 111 Tex. 18, 226 S.W. 140. If Zobel’s injuries were caused by improper construction, defects or want of repair of the building as the allegations of the petition seem to indicate, his claim falls within the express provisions of the indemnity agreement and petitioner is entitled to insist that respondent discharge his obligations thereunder.”

In rendering judgment herein in favor of appellee, the trial court necessarily found that the settlement by appellee of the federal court case against it by the widow and children of Del Bosque was in good faith, and was reasonable and prudent under the circumstances.

Even if the death of Del Bosque was caused by the sole negligence of appellee, the indemnity contract was sufficient to indemnify appellee for its loss occasioned thereby. Mitchell’s Inc. v. Friedman, supra. In James Stewart & Co. v. Mobley, Tex.Civ.App., 282 S.W.2d 290, writ refused, the Court said:

“While there is a majority and a minority rule on such question, our Texas courts have committed this State to an affirmative answer to such general question and such an agreement is not against the public policy of this State. As stated in 23 Tex.Jur. 525, Indemnity, sec. 5: ‘A contract of indemnity may be made to afford protection from loss because of possible or prospective tort liability. Such a contractual obligation may be enforced in accordance with its terms, irrespective of the fact that the liability protected against arose through the combined negligence of the parties to the contract or through the sole negligence of the party indemnified. Nor does the fact that a contract undertakes to save one harmless from loss resulting through his own negligence, in itself, render the agreement contrary to public policy.’ Citing, material here, Gulf, C. & S. F. R. Co. v. Scripture, Tex.Civ.App., 210 S.W. 269, reversed on other points, Pullman Co. v. Gulf, C. & S. F. R. Co., Tex.Com. App., 231 S.W. 741; Houston & T. C. R. Co. v. Diamond Press Brick Co., Tex.Com.App., 111 Tex. 18, 222 S.W. 204, modified 111 Tex. 18, 226 S.W. 140.”

We may well conclude that the trial court found that Del Bosque’s death was not the result of negligence of appellee, but that appellee was justified in making a settlement of the federal court case against it rather than risk a trial. The trial was before the court, and we must presume that the trial court decided all issues raised by the evidence in such a way as to support the judgment which it rendered. Construction & General Labor Union, Local No. 688 v. Stephenson, 148 Tex. 434, 22S S.W.2d 958; Bankers Home Building & Loan Ass’n v. Wyatt, 139 Tex. 173, 162 S.W.2d 694.

The evidence shows that Crews was called-upon to work-over a well of appellee’s on property known as Tijerina Ranch in the southern part of Jim Wells County, Texas. As Crews was commencing the work-over job, a fire, explosion or other type of accident occurred, causing the injury and death of Hilo Del Bosque. The work-over crew was attempting to place the substructure over the well when the accident occurred. The pressure in the flow line had not been released by the opening of a valve on it. This process is known as bleeding of the pressure in the flow line. The evidence is conflicting as to whose duty it was, under all the circumstances, to bleed the flow line. The trial court impliedly found that it was the duty of the work-over crew to bleed the flow line. The failure to bleed the flow line was one of the causes of the accident. The court further impliedly found, from the disputed evidence, that the failure of the work-over crew to use a snub line was a proximate cause of the accident. Such negligence of the work-over crew was clearly covered by the indemnity agreement.

Even if appellee’s negligence in these matters concurred in producing the accident, still appellant would he liable for the damages resulting under its indemnity contract. Humble Oil & Refining Company v. Wilson, Tex.Civ.App., 339 S.W.2d 954, writ ref. n. r. e.

Appellant contends that the judgment is incorrect because the effect of the indemnity agreement is in derogation of the Workmen’s Compensation Act of Texas. (Art. 8306 et seq., Vernon’s Ann.Civ.Stats.) If this defense was to be urged at all, it should have been urged in the federal case against appellee, and inasmuch as appellant was called upon to defend the federal case and refused, it will not now be heard to complain because the case was settled and certain defenses not urged at the trial. We do not pass upon whether this would have been a proper defense if it had been timely urged. Koninklyke Nederlandsche Stoom-boot Maalschappy, N. V., Royal Netherlands Steamship Company v. Strachan Shipping Co., 5th Circuit, 301 F.2d 741.

Appellant’s other points are without merit and are overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: TIREY, Justice.

license: Public Domain

text:
    Henry WHITE, Appellant, v. Willie JACKSON, Appellee.
    No. 3994.
    Court of Civil Appeals of Texas. Waco.
    May 10, 1962.
    Rehearing Denied June 7, 1962.

      Shields, Jones & Whittington and James W. Cantwell, Dallas, for appellant.
    Sanders, Nolen & Stevenson, H. J. Dol-linger, Jr., Dallas, for appellee.
   TIREY, Justice.

This is an appeal by writ of error from a default judgment.

A statement is necessary. In May 1961, Willie Jackson filed his original petition in the District Court of Dallas County against Henry White, a resident of Dallas County, and caused citation to be issued and served on White, but he failed to answer. We quote the pertinent parts of the petition:

“On or about the 7th day of June 1959, plaintiff sustained severe and extensive injuries and damages as a direct and proximate result of the negligence of defendant, all to the actual damage of plaintiff in an amount greatly in excess of One Thousand Dollars ($1000.00) and within the jurisdiction of the District Court.
“Wherefore, premises considered, plaintiff prays that defendant be cited to appear and answer herein, and that upon final trial, plaintiff have judgment against defendant for all damages proved, costs of court, interest at the rate of 6% per annum from the date of the judgment until same is paid, and for such other and further relief as to which plaintiff may he justly entitled, whether at law or in equity.”

On June 12, 1961, judgment was rendered against defendant in favor of plaintiff, and in the judgment we find this recital:

“the matters of fact and things in controversy being submitted to the court in their due and regular order, and it appearing to the court upon good and sufficient evidence that plaintiff is entitled to recover of and from Henry White, defendant, the sum of $20,510.”

And decreed accordingly. Thereafter on August 30, 1961, White filed his petition for writ of error and executed a super-sedeas bond, and this cause was removed to the Dallas Court of Civil Appeals for review, and is here on transfer. It appears that no court reporter was present and there is no statement of facts, and it also appears that more than 30 days had expired since the rendition and entry of a default judgment, and no motion for new trial was filed. See Rule 329-b, T.R.C.P.

The judgment is assailed on 5 Points. They are substantially to the effect that the Trial Court erred in entering judgment: (1 and 2) Based upon appellee’s petition for the reason that the petition is not sufficient to support a default judgment, because it failed to allege any facts or circumstances from which it could be found that appellant breached any duty whatsoever which he might have owed appellee in connection with whatever act or omission of the appellant is claimed as negligence; and failed to allege any act or omission whatsoever of appellant which could constitute negligence; (3 and 4) That the Court erred in entering judgment for any amount of money for the reason that appellee’s petition failed to allege any injury, fact or act from which any damages could have resulted to appellee; and that the Court erred in entering judgment in the sum of $20,510.00 in favor of appellee for the reason that his petition could in no event support a judgment substantially in excess of $1,000.00; (5) That the judgment of $20,510.00 is erroneous, because such petition did not give appellant notice as to the nature of appellee’s claim and the relief sought as required by the Fourteenth Amendment of the Constitution of the United States, and as also required by Article 1, Sec. 19 of the Constitution of the State of Texas, Vernon’s Ann.St.

Going back to Points 1 and 2, we think that each of them must be sustained for reasons which we shall briefly mention. The Rule in Texas is that the petition must adequately allege a cause of action before it can support a default judgment. See 25 Tex.Jur., Judgments, Sec. 36. In Griswold v. Carlson, 151 Tex. 246, 249 S.W.2d 58, our Supreme Court made this statement:

“The rules authorize the taking of a judgment by default. In order to support such a judgment, it is essential that the petition show a good cause of action upon which a default judgment can be entered, and the parties seeking such judgment must comply with the requirements of the rules regarding same.”

The Court points out that Rule 90 of T. R.C.P., expressly excepts default judgments from its operation. Rules 45 and 47 T.R.C.P., are pertinent here. Rule 45 provides in part that pleadings shall:

“ * * * (b) Consist of a statement in plain and concise language of the plaintiff’s cause of action * * *. That an allegation be evidentiary or be of legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole.”

Rule 47 provides in part:

“A pleading which sets forth a claim for relief * * * shall contain
“(a) A short statement of the cause of action sufficient to give fair notice of the claim involved, and
“(b) A demand for judgment for the relief to which the party deems himself entitled.”

The effect of Rules 45 and 47 above is apparent when they are considered in the light of Rule 90, T.R.C.P. It is likewise apparent from Rules 45 and 47 that the pleadings must give a party fair notice of the claim involved! and it is clear from Rule 90 aforesaid that a party seeking reversal of a default judgment because of defects, omissions or faults in pleadings, either in form or substance, does not waive the insufficiency of the pleading merely because of the default. See Vol. 4, McDonald, Tex.Civ.Prac., Sec. 1723, p. 1372. Edwards Feed Mill v. Johnson, Tex. Civ. App., 302 S.W.2d 151, reversed by Supreme Court on other grounds not pertinent here, 311 S.W.2d 232. It is clear under the foregoing authority that our Supreme Court intended to retain the rule relating to a general demurrer as a test of the sufficiency of pleadings to support a judgment by default. In fact, under the express language of Rule 90, T.R.C.P., the same test is still valid. See 25 Tex.Jur., Judgments, Sec. 36, and Odom v. Pinkston, Tex.Civ.App., 193 S.W.2d 888, n.r.e. It is clear to us that the petition of appellee could not withstand the test of a general demurrer. The Rule is that in order to be sufficient to support a default judgment, a plaintiff’s petition must at least set forth sufficient of the facts and circumstances which constitute his cause of action as to fairly notify his adversary of the basis of his claim and of the relief which he is seeking.

Going back to appellee’s petition, we find that it fails to allege any act or omission on the part of appellant which constituted negligence; we find no allegation of fact indicating that appellant owed appellee any duty whatsoever in connection with whatever might be the basis of appellee’s claim against him. No facts are alleged in the petition. The only word contained in appellee’s petition which might be considered any clue as to the nature of appellee’s claim is the word “negligence.” But, there can be no negligence unless a duty is present, and here none is alleged. The term “negligence” is not used to characterize any specific act or omission made by appellant, and there is no way of ascertaining from the pleading that appellant may or might have owed appellee a duty of any kind whatsoever. So the word “negligence”, standing alone, provides the only starting point for determination of whether or not appellee’s petition was sufficient to support a default judgment. It follows that in resolving Points 1 and 2, resort can be had only to the general rules pertaining to negligence actions. 30-B, Tex.Jur., Negligence, Sec. 4, states substantially that the essentials of actionable negligence are the elements of (1) duty, (2) breach and (3) injury. Certainly the element of duty of the defendant to plaintiff is not shown in the petition. In Independent Eastern Torpedo Co. v. Carter, Tex.Civ.App., 131 S.W.2d 125, n.w.h., we find this statement: (See cases cited under Point 2).

“The declaration, complaint, or petition must show the existence of a legal duty on the part of the defendant to exercise care as to the person or property injured, at the time and place of the injury; it must allege facts showing a duty owing by defendant to the person injured to do or not to do the thing complained of as the proximate cause of the injury. It is insufficient to allege merely that the defendant negligently performed or failed to perform certain acts, whereby the injury was caused without an allegation showing the defendant’s duty in the matter.
* * * * * *
“A mere general allegation of the existence of such duty without a state- . ment of facts from which the duty arises is insufficient as being merely a statement of a legal conclusion.”

See 30-B, Tex.Jur., Negligence, Sec. 125. When the foregoing rules are applied to the petition in this cause it shows that such petition is fatally defective. As above stated, no duty was alleged owing by the appellant to appellee, nor were any facts or circumstances alleged from which a duty could even be remotely implied or inferred. As to the relationship of the parties, it is not even shown by the pleading that they directly, or by any agency, were within miles of each other at the time in question. See also San Antonio & A. P. Ry. Co. v. Morgan, 92 Tex. 98, 46 S.W. 28. Wichita County Water Improvement District #1 v. Curlee, 120 Tex. 103, 35 S.W.2d 671. Also Wichita Falls and Southern R. R. Co. v. Anderson, Tex.Civ.App., 144 S.W.2d 441, Louthian v. Ft. Worth & D. C. Ry. Co., 50 Tex.Civ.App. 613, 111 S.W. 665. In Missouri Pacific Ry. Co. v. Hennessey, 75 Tex. 155, 12 S.W. 608, we find this statement of the Rule:

“A mere abstract proposition that defendant was guilty of negligence which resulted in injury to the plaintiff would not he sufficient. The act done or omitted constituting negligence must be averred and proved. Hence it follows that an act done or omitted which is relied on to establish negligence must be alleged, or proof of it will not be allowed. Where, from the nature of the case, the plaintiff would not be expected to know the exact cause, or the precise negligent act which becomes the cause, of an injury, and where the facts are peculiarly within the knowledge of the defendant, he would not be required to allege the particular cause, but it would be sufficient to allege the fact in a general way, as that there was a defect of machinery of structure, or want of skill in operating on the part of defendant or its servants, or some such fact as would give the defendant notice of the character of proof that would be offered to support the plaintiff’s case. * * * If an injury occurs under such circumstances that a negligent act on the part of defendant cannot be alleged or proved, and where no relation exists between the parties that demands immunity from injury, there can be no recovery.”

The foregoing rule is very broad and comprehensive and our Supreme Court has not seen fit to change it. It seems to us that appellee alleged no more than a legal conclusion to the effect that appellant was liable to him as a result of negligence; that appellee’s pleading is and was fatally defective; that in effect it contained nothing more than the unsupported statement that appellant is liable to appellee because of some unknown act or omission of negligence resulting in some unknown injury or damage to appellee; such allegations are obviously a conclusion on the part of appellee and do not furnish any information whatsoever from which such conclusion could be drawn. The allegation of negligence is a mere conclusion of the pleader, and such allegation is not admitted by either a general demurrer or by default, and such allegation in the petition could in no event support a judgment by default under Rules 45, 47 and 90, T.R.C.P. See also Cragin v. Lovell, 109 U.S. 194, 197, 27 L.Ed. 903.

Needless to say that appellee’s pleading was wholly insufficient to permit appellant to identify anything or to estimate the scope of the dispute, which is well illustrated by a judgment for $20,510.00 against him, based upon a petition alleging damages only “in excess of $1,000.00”. We think for the reasons stated that Points 1 and 2 must be sustained,- and this will require that the .cause be reversed and remanded.

Appellant’s 3rd Point is substantially that the Court erred in entering judgment for any amount of money, for the reason that the petition failed to allege any injury, fact or act from which any damages could have resulted to appellee. We think it is obvious that this point must be sustained. For the rules prescribing the detail with which the damages must be alleged, see Vol. 2, McDonald, Texas Civ. Prac., Sec. 6.17, at p. 576. Going back to the appellee’s petition in this cause, the defendant was not advised of the alleged damages and injuries to appellee, either to his person or to his property. We think that a pleading which wholly failed to state whether or not the alleged injuries or damages were personal or whether the damage was to property, is fatally defective and will certainly not support a judgment by default for any amount. The petition, as we have stated before, does not allege any act, circumstance or injury from which damages normally flow or can be remotely implied. Certainly none can be supplied by the court. It is the general rule of pleadings that fair notice is a guide for determining whether or not a petition contains sufficient allegations on which to base an award of damages in any amount. See Rules 45 and 47 T.R.C.P. See also 17 Tex. Jur.2d, Damages, Sec. 192. The petition here does not allege any facts from which the court can supply any measure of damages whatsoever, and we think such failure requires the judgment to be reversed and remanded. See Caswell v. J. S. McCall & Sons, Tex.Civ.App., 163 S.W. 1001, n.w.h.

We have carefully considered Points 4 and 5, and we think each should be sustained. Since we are of the view that the cause must be reversed and remanded, it will unduly extend this opinion to make further comment on Points 4 and 5, and for that reason we do not do so. Accordingly, this cause is reversed and remanded.

MCDONALD, C. J., and WILSON, J., concur in the result.


author: WALTER, Justice.

text:
    M. K. HALL COMPANY, Appellant, v. Carlos CABALLERO, Appellee.
    No. 3713.
    Court of Civil Appeals of Texas. Eastland.
    June 1, 1962.
    Rehearing Denied June 22, 1962.

      Stafford, Atlas & Spillman, McAllen, for appellant.
    Johnson, Hester, Jenkins & Toscano, Harlingen, for appellee.
   WALTER, Justice.

Carlos Caballero filed suit against Johnnie Saunders and M. K. Hall Company, a partnership composed of M. K. Hall and Keith Hall, for personal injuries. The plaintiff’s damages were alleged to have been sustained by him as a result of a collision between his car and the rear end of Hall’s truck, which was parked on the paved portion of the highway at night without lights. Saunders was the truck driver.

The jury found that Saunders was acting within the course of his employment for Hall Company at the time of the collision; that Saunders was under the influence of intoxicating liquor at the time and that such condition was a proximate cause of the collision; that Saunders left his tractor-trailer standing on the paved part of the highway, and that this was negligence and a proximate cause of the collision, and that Saunders turned his lights off at night while parked on the highway, and that this was negligence and a proximate cause of the collision. Judgment was rendered for plaintiff for $10,941.95.

Saunders has not appealed. Hall Company has appealed contending the court erred in entering said judgment because (1) there was no evidence and insufficient evidence to support the submission of the course of employment issue (2) the jury’s finding that Saunders was in the course of employment for Hall Company at the time of the collision is against the great weight and preponderance of the evidence (3) there is no evidence or insufficient evidence to support the submission of the issue of plaintiff’s decrease in earning capacity and (4) that the jury’s finding that the plaintiff’s loss of earning capacity was $6,500.00, is against the great weight and preponderance of the evidence. The appellant also contends the court erred in excluding the testimony of Salvador Borreago relative to the damage issue.

Saunders was employed by appellant to haul grain from Portales, New Mexico to purchasers in Texas, New Mexico and California. These deliveries were arranged so that Saunders would haul produce on his return trip to Oklahoma. From Oklahoma, Saunders would return to Portales. Saunders ordinarily made two round trips every seven days.

When Saunders was dispatched with a load of grain on this trip, he was instructed to deliver it to Whitenberg at Alamo, Texas. He was told the day he was to pick up the produce after unloading the •grain. He was to deliver the produce within a reasonable time and return to Portales. After Saunders left Portales on this trip, he was not under orders from Hall to report to the home office unless he had trouble. Saunders was to use his own judgment as to the details of his route and times for loading and unloading. He decided how fast to drive and where he would eat and sleep and all other details of his trip. He was furnished expense money before each trip.

On this particular trip Saunders picked up a load of milo at Lariat, Texas. He returned to Portales and had his truck serviced. He left Portales on a Saturday evening about 7:00 o’clock. He arrived at Alamo and delivered the grain on the following Monday morning. While they were unloading the milo, Saunders disconnected the tractor and took it to the Truck Service Center at Pharr for repairs.

He drank beer while his truck was being repaired. While he was at the Do Drop Inn, he called a girl friend and she met him at the tavern. They had a beer and she left. He went back to the garage and waited until the repairs on his truck were completed. After he had done some checking on the grain, and weighed his truck, he returned to Pharr and picked up his girl friend. He was due to pick up a load of lettuce at Weslaco at about 8:00 or 9:00 o’clock that evening. He was unable to get his truck washed out at Pharr and decided he would have it washed at some station on his way to Weslaco. He called the shipper at Weslaco and informed him that he might be late. The shipper instructed him to be there before midnight. So, with his dirty trailer bed and his girl friend, Saunders headed for Weslaco. Saunders testified he asked his girl friend to ride with him to Weslaco where he was to recieve a load of lettuce. She was going along just for the ride. He stopped at a service station between Donna and Alamo and was unable to get his truck washed. He stopped at another station near Weslaco and was unable to get service. He was also unable to get service at the ice house at Mercedes. The record reveals that Mercedes is east of Weslaco and Weslaco is east of Pharr. Saunders testified that he thought about turning around but decided to go to Dooley’s Truck Stop in Harlingen. Harlingen is east of Mercedes. While on his way to Dooley’s Truck Stop, he saw two trucks parked at a drive-in and stopped and inquired about a place where he could get service. They informed him the only place that they knew was in Harlingen. At this drive-in Saunders picked up some cigarettes and two bottles of beer. He gave one to his girl friend. Saunders and his girl friend also drank some whiskey. He stated, in his opinion, she was intoxicated. Soon thereafter, his girl friend asked him to stop so that she could relieve herself. He stopped the truck and she got out and he scooted down in the seat and went to sleep. Saunders testified that some time after he dozed off, someone started pounding on the side of his truck and admonished him to move his truck off the road. Soon thereafter, the plaintiff’s car ran into the rear end of his trailer.

L. S. Hall, Hall Company’s manager, testified that Saunders was authorized to have the truck washed and pay for it out of his expense funds; that washing out the trailer bed was customary before picking up eatables, such as lettuce. He further testified, in effect, that when one of his truck drivers was having his truck washed the truck driver was carrying out the business of the company and was doing what he was employed to do; that when a trucker is driving one of his trucks on the highway and is going some place to have his truv.'k washed, after he has unloaded a load of milo, he is doing a job that he was hired to do.

Hon. Joel Ellis, an assistant District Attorney in Cameron County, said he had talked to Saunders about the accident and testified: “As I recall, they had made a stop in La Feria, bought some beer, and were headed from La Feria towards Harlingen, and Johnnie said that he was looking for a room, meaning a motel room.”

Saunders had been employed by Hall about four months as a truck driver. It wae conclusively established that at the time of the accident Saunders was an employee of Hall and that the truck he was operating at the time of the accident belonged to Hall. Under these circumstances a presumption arises that Saunders was acting within the course of his employment and in the furtherance of Hall’s business. See Eilar v. Theobold, Tex.Civ.App., 201 S.W.2d 237, (No Writ History.).

Appellants take the position in their no evidence points on course of employment that the evidence is so clear, positive, creditable and conclusive that the presumption should be deemed rebutted as a matter of law. Saunders testified he was en route to Dooley’s Truck Stop for the purpose of having the company truck washed so he could take on a load of lettuce. Mr. Ellis testified, in effect, that Saunders told him he was looking for a motel room. We have concluded that the testimony did not overcome the presumption, as a matter of law, and this was a fact issue for the jury. Gammill v. Mullins, Tex.Civ.App., 188 S.W.2d 986, (Writ Refused N. R. E.).

H^ing an unauthorized person with him at the. time of the accident and being intoxicated does not establish, as a matter of law, that Saunders was not acting within the course of his employment. Wright v. Maddox, 288 S.W. 560, (Writ Dis.) ; Central Motor Company v. Gallo, Tex.Civ.App., 94 S.W.2d 821, (No Writ History) ; Eliar v. Theobold, 201 S.W.2d 237, (No Writ History) ; Sears, Roebuck and Company v. Jones, Tex.Civ.App., 303 S.W.2d 432, (Writ Ref. N. R. E.).

Appellant’s point that there is no evidence to support the jury’s finding of $6,500.00 to the issue on appellee’s decrease in his future earning capacity cannot be sustained. Appellee was 35 years of age at the time of trial. At the time of his injury he was earning $70.00 per week. After his injury he was earning $55.00 per week. When admitted to the hospital, appellee complained about an injury to his arm and head. He sustained a comminuted fracture of the distal end of the right humerus which was referred to as a “T” type fracture. The fracture extended into the elbow joint. A closed reduction was attempted but was unsuccessful and an open reduction became necessary. This surgery took about two hours. Appellee was in the hospital 7 days and in a cast about 6 weeks. One doctor testified that appellee had between thirty to fifty percent disability to his right arm and that this disability was permanent; that he had only about fifty .percent of the normal strength in his right arm; that he had bursitis of the shoulder joint and that his injuries would shorten his endurance and limit his capacity for work. Due to the injuries to appellee’s right arm, shoulder and cervical spine one doctor testified, “it is my opinion that he has approximately 20 to 25% disability to the total man considering all factors that involved with this particular individual’s age, work and so forth.” On cross-examination the doctor testified that the appellee not only suffered a 35% disability as a cook or fountain boy but that this disability would be applicable to any type of work. It was stipulated that a man 35 years of age has a life expectancy of 37.3 years.

Our Supreme Court in McIver v. Gloria, 140 Tex. 266, 169 S.W.2d 710, said: “After a careful investigation of the authorities, we are of the opinion that the trial court correctly instructed the jury to consider plaintiffs loss of earning capacity. In a personal injury suit the amount which the plaintiff might have earned in the future is always uncertain, and must be left largely to the sound judgment and discretion of the jury. However, the verdict must be based on something more than mere conjecture. It must be an intelligent judgment, based upon such facts as are available. * * * No general rule can be laid down, except that each case must be judged upon its peculiar facts, and the damages proved with that degree of certainty of which the case is susceptible. * * * Where there is an absence of any evidence from which the jury could properly ascertain the plaintiff’s future incapacity and loss of earnings, then such finding of the jury would not support a judgment based thereon, and courts would not permit such judgment to stand. Plaintiff, however, is not required to prove the exact amount, but only the facts from which the jury, in the exercise of sound judgment and discretion, can determine the proper amount.”

We have concluded that the court did not err in excluding the testimony of Salvador Borreago relative to the intemperate habits of appellee. The appellant did not contend that appellee was intoxicated at the time of the accident. Appellant cites no authority under this point. See McCarty v. Gappelberg, Tex.Civ.App., 273 S.W.2d 943.

We have considered all of the evidence and have concluded that the jury’s finding that Saunders was acting within the course of his employment at the time of the collision and that the jury’s finding that the plaintiff’s loss of earning capacity in the future was $6,500.00 are not against the great weight and preponderance of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We have examined all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: DIXON, Chief Justice.

text:
    Harold E. (Jack) McCOLLUM et al., Appellants, v. MERCHANTS FACTORS CORP. OF TEXAS, Appellee.
    No. 16011.
    Court of Civil Appeals of Texas. Dallas.
    May 25, 1962.

      Trotter, Cramer & Childs, and J. Paul Pomeroy, Jr., Houston, for appellants.
    Ungerman, Hill, Ungerman & Angrist, and Robert W. Austin, Dallas, for appellee.
   DIXON, Chief Justice.

This is an appeal from an order overruling a plea of privilege, which plea sought to transfer a suit from Dallas County, Texas to Walker County, Texas for trial. The parties will be referred to> as in the trial court.

The plaintiff is. Merchants Factors Corporation of Texas, a Delaware Corporation, with its principal office in Dallas, Texas.

The defendants named in plaintiff’s amended petition are Robert W. McCol-lum and Harold E. McCollum, residents of Walker County, Texas; Lee Mitchell and C. K. Dollar, residents of Dallas County, Texas; Bob McCollum Sales & Service, Inc., a corporation; Robert W. McCollum and Harold E. McCollum as trustees and directors of Bob McCollum Sales & Service, Inc.; and Robert W. McCollum and Harold E. McCollum, partners, doing business as Bob McCollum Sales & Service. Plaintiff alleged that C. K. Dollar now operates his own business in Dallas, Texas known as Dollar Tire Company, but that he formerly operated as a partner of Harold E. McCollum in a business known as Texas Tire Traders.

Between the time plaintiff filed its original petition and the time its amended petition was filed, the defendants Robert W. McCollum and Harold E. McCollum filed a plea in abatement (subject to their plea of privilege) denying under oath that they were partners doing business as Bob McCollum Sales & Service. In its amended petition plaintiff takes notice of their plea in abatement. Since Subd. 4 of Art. 1995, Vernon’s Ann.Civ.St. is among the statutes relied on by plaintiff to maintain venue in Dallas County we believe it well to quote part of plaintiff’s amended petition :

“That plaintiff believed it was dealing with such company as a partnership as hereinabove alleged, but' in the event it was really a corporation, defendants McCollum are estopped to assert such fact. ⅜ * * Plaintiff shows to the court that the defendants Harold E (Jack) McCollum and Robert W. McCollum are asserting that no partnership existed as between them in the firm of Bob McCollum Sales & Service at the times hereinabove described and set out, and in connection therewith and as part of plaintiff’s cause of action herein it shows and represents to the court that insofar as said defendants are concerned they did business under the name of Bob McCollum Sales & Service and used the name or business of Bob McCol-lum Sales & Service as a conduit or means by which they conducted a tire business, and exchanged property and assets between the business of Mitchell Enterprises, Inc. and such business of Bob McCollum Sales & Service, and the transfer of funds between such business, and as part of their fraudulent plan and scheme, and intermingled the affairs, accounts, and finances of •such business, the said Harold E •(Jack) McCollum being the dominating force and director of such business, and the said Harold E (Jack) Mc-Collum controlling and directing the ■same, and drawing from the business Mitchell Enterprises, Inc. large sums of money for his own use and benefit, and converting and transferring assets, properties and monies to himself and between and among the various ■enterprises controlled and directed by him.”

It was alleged that Harold E (Jack) McCollum and Lee Mitchell were at the times material hereto stockholders in and •officers of Mitchell Enterprises, Inc. a corporation with its principal office in Dallas, Texas. Mitchell Enterprises, Inc. is not a party to this suit. Lee Mitchell and Mitchell Enterprises, Inc. have heretofore been adjudicated bankrupts.

Plaintiff further alleged that pursuant to written agreements and guarantees it factored invoices totalling $10,345.31 purporting to cover tires sold and delivered by Mitchell Enterprises, Inc. to Texas Tire Traders, a partnership. Also factored were invoices totalling $12,018.83 purporting to cover tires sold and delivered by Mitchell Enterprises, Inc. to Bob Mc-Collum Sales & Service, which plaintiff alleges it was led to believe was a partnership composed of Harold E (Jack) McCollum and Robert W. McCollum. Plaintiff in good faith advanced money to Mitchell Enterprises, Inc. in an amount of 90% of the full amount of said invoices, less its commission as factor.

The said invoices, according to plaintiff’s allegations, did not actually represent bona fide sales, or actual shipment and delivery of the tires, but resulted from a fraudulent scheme and conspiracy between defendants whereby Texas Tire Company and Bob McCollum Sales & Service executed purchase orders. Mitchell Enterprises, Inc. then issued invoices regular on their faces, and obtained money on said invoices from plaintiff, though said merchandise had not really been sold or delivered.

A plea of privilege was filed in behalf of Bob McCollum Sales & Service, Inc. by J. Paul Pomeroy, Jr. a former stockholder, director and officer of the corporation. Robert W. McCollum and Harold E. Mc-Collum also filed a plea of privilege. Only Bob McCollum Sales & Service, Inc. by J. Paul Pomeroy, Jr. and Robert W. Mc-Collum individually have appealed from the order overruling the pleas of privilege.

FACTS

Many of the material facts are undisputed. Plaintiff and Mitchell Enterprises, Inc. entered into two written factoring agreements dated April 9, 1959 and March 9, I960, respectively, whereby plaintiff agreed to factor invoices for Mitchell Enterprises, Inc. These agreements are lengthy and only material portions will be referred to hereinafter.

To further protect plaintiff two unconditional guaranty contracts were executed also dated April 9, 1959 and March 9, 1960, respectively, signed by Harold E. McCollum and Lee Mitchell. By these instruments the signers agreed to become primarily liable for obligations and indebtedness owed to plaintiff by Mitchell Enterprises, Inc.; agreed to waive notice of default by the principal; and agreed that they might be sued without making Mitchell Enterprises, Inc. a party.

At intervals thereafter invoices were issued by Mitchell Enterprises, Inc. and were factored to plaintiff, the latter advancing 90% of the amount of the invoices less a factor’s fee.

On February 26, 1960 Mitchell Enterprises, Inc. executed a promissory note in the amount of $11,795.25 payable on demand to plaintiff at Dallas, Texas, which note provided that as collateral security therefor Mitchell Enterprises, Inc. had deposited with appellant a St. Louis Terminal Warehouse receipt in the amount of $12,-008.00.

Both C. K. Dollar and Harold E. Mc-Collum testified that Texas Tire Traders was a partnership composed of Robert W. McCollum, Ben Grissom, Harold E. Mc-Collum and C. K. Dollar. According to C. K. Dollar this partnership continued to operate until September 1959 when Dollar purchased practically all of its physical assets and established his own business under the name of Dollar Tire Company. Though Robert W. McCollum was present and testified he did not deny this testimony of Dollar and Harold E. McCollum.

C. K. Dollar and Harold E. McCollum also testified that they caused the invoices to be prepared purportedly supporting sales of tires by Mitchell Enterprises, Inc. to Texas Tire Traders, though no such merchandise was actually sold and delivered. They then factored these spurious invoices with plaintiff. The money thus fraudulently obtained was used to pay obligations of Harold E. McCollum, one of the partners of Texas Tire Traders.

Robert W. McCollum in his testimony denied that Bob McCollum Sales & Service was ever a partnership between himself and his brother Harold E. McCollum. He also testified that to the best of his knowledge everything he was billed for from Mitchell Enterprises, Inc. was actually delivered to him, or his place of business or his warehouse, and that he had paid Mitchell Enterprises, Inc. everything he ever owed them.

Defendant Bob McCollum Sales & Service, Inc., as shown by its articles of incorporation, was organized October 30, 1958; and, as shown by articles of dissolution, it was dissolved March 11, 1960. Robert W. McCollum testified that he was president of the corporation. The invoices involved in this controversy which were made out to Bob McCollum Sales & Service by Mitchell Enterprises, Inc. bore various dates between April 13, 1959 and March 13, 1959.

Seymour Bernstein, plaintiff’s president, testified that none of the invoices factored by his company, either those made out to Texas Tire Traders or those made out to Bob McCollum Sales & Service had been paid.

OPINION

Plaintiff in its controverting pleas alleged that venue is maintainable in Dallas County, Texas under Subds. 4, 5, 7, 23 and 29a of Article 1995, V.A.C.S.

Defendants present several alleged points on appeal, the gist of which is that there is no evidence of any contract in writing signed by either of the appealing defendants, so Subd. 5 does not apply; there is no evidence of fraud on the part of either of the appealing defendants, so Subd. 7 does not apply; the causes of action against the two appealing defendants are not so closely related to the causes of action against the other defendants as to require their being tried together in order to avoid a multiplicity of suits, so Subd. 4 does not apply; Robert W. McCollum was sued as an individual and as a trustee and director of Bob McCollum Sales & Service, Inc. and there is no showing that he is either a trustee or a former director, so Subd. 23 does not apply; and the two appealing defendants, under the undisputed facts, are not necessary parties to the cause of action against the other parties, so Subd. 29a does not apply.

There is no evidence that either of the two appealing defendants contracted in writing to be sued in Dallas County. Harold E. McCollum and Lee Mitchell signed an unconditional guaranty under the terms of which they agreed to become primarily liable for the debts of Mitchell Enterprises, Inc. Therefore they were bound by the terms of the note of Mitchell Enterprises, Inc., which note stipulated that payment was to be made in Dallas County, Texas. So far as the record shows Robert W. McCollum and Bob Mc-Collum Sales & Service, Inc. signed nothing in writing. Subd. 5 does not apply to them.

The evidence undoubtedly shows fraud on the part of Harold E. McCollum and C. K. Dollar, partners who arranged for the spurious invoices to be made out to Texas Tire Traders.

But there is no showing that false representations were made by Robert W. McCollum or by any representative of Bob McCollum Sales & Service, Inc. As we have already pointed out there is the uncontradicted testimony of defendants Dollar and Harold E. McCollum that Robert W. McCollum was one of the four partners operating Texas Tire Traders when the spurious invoices were prepared and factored to plaintiff. Does this make Robert W. McCollum a party to the fraud of his partners? We might be inclined to so hold were it not for the fact that plaintiff did not plead that Robert W. McCol-lum was a partner in Texas Tire Traders. It pled that Texas Tire Traders was a partnership composed of Dollar and Harold E. McCollum. Since this appeal involves only a question of venue we are of the opinion that under the circumstances Subd. 7 of Art. 1995, V.A.C.S. cannot be invoked by plaintiff to retain venue in Dallas County as to the two appealing defendants.

Does Subd. 4 of the Statute apply so as to retain venue in Dallas County, as to all defendants ? In our opinion it does.

The venue facts which must be shown under Subd. 4 are: (1) that one defendant resides in the county of suit; (2) that the plaintiff alleged in his petition a joint cause of action against the resident and nonresident defendants, or a cause of action against the resident defendant so intimately connected with the cause of action alleged against the nonresident defendant that the two may he joined together under the rule intended to avoid a multiplicity of suits; and (3) the plaintiff must plead and prove that he has in fact a cause of action against the resident defendant. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300.

The plaintiff in this cause has met the above three requirements. Lee Mitchell and C. K. Dollar are residents of Dallas County, Texas. Dollar testified that he had been a resident for about twenty years. Examination of the evidence will certainly show support for the trial court’s implied finding that plaintiff has in fact a cause of action against the Dallas County defendants.

With reference to the requirement — numbered (2) as heretofore set out —it has often been held that the plaintiff need only allege a joint cause of action against the nonresident defendant, or causes of action intimately connected. He need not prove a bona fide claim against the nonresident defendant. Stockyards National Bank v. Maples, supra; Texas State Bank of Alice v. Baker, Tex.Civ. App., 275 S.W.2d 168; Benson v. Greenville National Exchange Bank, Tex.Civ. App., 228 S.W.2d 272; Clark “Venue in Civil Actions”, p. 34; McDonald “Texas Civil Practice”, Vol. 1, pp. 343-344. In this case plaintiff pled a conspiracy involving all defendants, a joint cause of action. There is nothing to indicate that the pleading was merely a false stratagem for the mere purpose of retaining venue in Dallas County.

Should we be mistaken in the above holding we are nevertheless convinced that plaintiff has met the alternative part of the requirement heretofore numbered (2) : that the causes of action as shown by plaintiff’s petition are so intimately connected that the two may be joined under the rule intended to avoid a multiplicity of suits. It does not matter that the causes alleged do not necessarily call for the same type or amount of -recovery against each defendant. If they are intimately connected it is sufficient. Atlas Roofing Co. v. Hall, 150 Tex. 611, 245 S.W.2d 477; Taylor v. Jones, Tex. Civ.App., 244 S.W.2d 371; Roberts v. Allen, Tex.Civ.App., 225 S.W.2d 227; Ditmore v. Nicholson, Tex.Civ.App., 188 S.W.2d 414 (Syl. 5). We hold that Subd. 4 is applicable in this case and venue thereunder as to the two appealing defendants may be retained in Dallas County.

Subd. 23 of Art. 1995, V.A.C.S. is not applicable because plaintiff failed to show essential facts to make out a case against Bob McCollum Sales & Service, Inc. Stone Fort National Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674.

We do not believe Subd. 29a may properly be invoked by plaintiff for two -reasons: (1) the Subd. applies only when none of the defendants resides in the county of suit, and (2) the appealing defendants are not necessary parties to plaintiff’s suit. McDonald “Texas Civil Practice,” Vol. 1, pp. 334-336.

We sustain appellant’s points pertaining to Subdivisions 5, 7, 23 and 29a of Art. 1995, V.A.C.S. But we overrule appellant’s point pertaining to Subdivision 4 of the Statute. Venue may be retained in-Dallas County under said Subdivision 4. Therefore the judgment of the trial court must be affirmed.

Affirmed.


author: YOUNG, Justice.

text:
    Bevie F. BIGGERS, Trustee, et al., Appellants, v. The STATE of Texas, Appellee.
    No. 15988.
    Court of Civil Appeals of Texas. Dallas.
    May 4, 1962.
    Rehearing Denied June 8, 1962.

      McKool & McKool and Carl Broyles, Dallas, for appellants.
    Will Wilson, Atty. Gen., William R. Hemphill and Morgan Nesbitt, Austin, for appellee.
    Locke, Purnell, Boren, Laney & Neely, Dallas, amicus curia.
   YOUNG, Justice.

This is a condemnation suit brought by the State against appellants for the taking of 88,601 sq. ft. of business land across U. S. Highway 67 from Big Town Shopping Center for the building of an overpass at that Highway and Shiloh Road in Dallas County. Appellee’s right, power and authority to condemn the land not being questioned, the case was submitted to the jury on three issues, with judgment rendered for $20,000 on their answers, of which the appellants complain as wholly inadequate and insufficient.

The landowners’ principal complaint in motion for new trial centers upon the court’s refusal to permit Leonard M. Cowley, a real estate appraiser, to testify that he had been employed by condemnor (State of Texas) to make an appraisal of the subject property; that he had made such appraisal and had been paid therefor; refusing also to permit any questioning as to such appraisal; nor concerning his own expert opinion of the market value on date of taking, to-wit: July 8, 1958. Cowley had not been called on by con-demnor as a witness and was represented in this proceeding by his own attorney, filing brief amicus curiae.

We gather from the briefs of the parties that after both sides had presented their testimony in chief on values, and after appellants had presented one witness in rebuttal, they called Mr. Cowley to the stand for further rebuttal. He was allowed to state his name to court and jury, that he was a land appraiser in Dallas County, fairly familiar with the location of the property, objections being sustained to any further questions as to his having been employed by the State to make an appraisal thereof or to amount of that appraisal. Appellants were thereafter denied the right to develop any anticipated testimony of the witness Cowley by formal Bill of Exceptions; the stated purpose of the Bill being to show “(1) that Mr. Cowley was employed by the State Highway Department; (2) that he did make an appraisal for the State Highway Department; (3) that he was paid by the State Highway Department for making the appraisal; (4) that he made an appraisal that varies somewhat probably * * * from the actions in this * * * from $25,000.00 or $30,-000.00 upward to $60,000.00.”

In substance, the jury answers were (1) that the market value of the strip of land condemned by the State at time it was condemned, considered as severed property, was $20,000; (2) that the market value of defendants’ tract of land exclusive of the strip condemned, immediately before the strip was taken, was $425,000; (3) that excluding increase or decrease in values by reason of injuries received by defendants in common with the community generally and not peculiar to them and connected with their ownership, and taking into consideration the uses to which the strip condemned is to be subjected, the market value of the remainder of defendants’ tract of land immediately after the taking of the strip was $425,000.

Appellants’ main ground of error is presented in their point two; complaining of the court’s refusal “to permit Leonard M. Cowley, a real estate appraiser, to testify during the trial as to the market value on the date of taking of the strip of land condemned in excess of $30,000, and to testify as to the market value of the remainder of appellants’ tract of land, excluding the strip condemned, immediately before the condemnation and immediately after the condemnation since such testimony is not privileged and not the subject of any immunity.” This was answered by appellee in counterpoints eight and seven as follows: (8) “No error on the part of the trial court is shown because an expert valuation witness cannot be compelled to testify as to an opinion of value which is based on an examination of the property to be valued made during and pursuant to his engagement as an appraiser by the party adverse to the party offering the testimony.” (7) “Even in the event that it were error to exclude any of the testimony of witness Cowley, such exclusion would be harmless because the issues of value were thoroughly developed through the testimony of other witnesses.” The particular witness Cowley was also in the attitude of refusing to testify, the reason thereof being fairly stated in the following comment of his own counsel, Mr. Purnell, viz.: “My position is this, the testimony itself as to the appraisal is inadmissible, not only before the jury, it cannot be extracted from the appraiser, even on a Bill, under the rule regarding both the rule which the Court mentioned against discovery, and the further reason that the work product of the professional appraiser cannot be extracted from him, against his will, * * * unless he has agreed to give that work product to the person seeking it, * * * because it is his sole livelihood.”

We are chiefly concerned with state of the record at time appellants offered the testimony of their witness Cowley. They, having the burden of proof, first presented Russell E. Shutt, a qualified appraiser, familiar with the subject land, who expressed an opinion of value of the strip condemned at $66,606.60; of the remaining land before the condemnation at $528,-500 and immediately thereafter at $468,-500. Larry Klindworth, likewise an experienced appraiser, valued the property condemned at $69,450; the remainder immediately before the taking at $534,000 and immediately after the taking at $471,-000, appellants then resting. Appellee then presented expert appraisal witnesses Joseph R. Smith, III, and Howard W. Dun-ham, Sr., the former expressing an opinion of $16,000 as market value of the land condemned, that of the remaining property before the condemnation at $336,000 and after the taking at $336,000. The latter (Dunham’s) opinion of the value of the land condemned was $19,300; of the remaining property before condemnation at $374,900 and after the taking in the same amount. Appellants’ first rebuttal witness was Roy Eastus who valued the strip condemned at $61,330.55, the remainder before the taking at $492,600 and after the taking at $438,200. Then came the call by appellants of the witness Cowley for the purpose of showing (as already stated) “(1) that Mr. Cowley was employed by the State Highway• Department; (2) that he did make an appraisal for the State Highway Department; (3) that he was paid by the State Highway Department for making the appraisal; (4) that he made an appraisal that varies somewhat probably * ⅜ * from the actions in this case * * * from $25,000.00 or $30,000.00 upward to $60,000.00.”

We now recur to appellants’ point two above quoted. The objections of appel-lee and attorney for the witness were to effect that the appraisal sheets of Cowley, made while employed by the State but not used, were otherwise his personal property which he could not be made to produce at instance of the opposing party unless voluntarily; and this though appellants had offered to pay the amount of his charges in this connection, such is the rule of property in some other jurisdictions; notably in Pennsylvania. See Pennsylvania Company for Insurances on Lives and Granting Annuities v. City of Philadelphia, 262 Pa. 439, 105 A. 630, 2 A.L.R. 1573. There, in an eminent domain case, two real estate men were called to testify for the party from whom they had not made an appraisal. Objection was made to their testifying because of their employment and report to the opposing party. The court in sustaining the objections, distinguished between the right of the State or the United States in vital public matters and those of a private litigant; and also distinguished between compelling testimony as to “facts” and the giving of professional expert opinion; holding as follows: “The process of the courts may always be invoked to require witnesses to appear and testify to any facts within their knowledge; but no private litigant has a right to ask them to go beyond that. The state or the United States may call upon her citizens to testify as experts in matters affecting the common weal, but that is because of the duty which the citizen owes to his government, and is an exercise of its sovereign power. * * * But the private litigant has no more right to compel a citizen to give up the product of his brain than he has to compel the giving up of material things. In each case it is a matter of bargain, which, as ever, it takes two to make, and to make unconstrained.” (Emphasis ours.)

Texas is without statutory privilege for professional men, the rule of privileged communications not extending to communications with bankers, partner to partner, clergymen and confessor, or physician and patient. 44 Tex.Jur. p. 1074. As to the latter class for example in Caddo Grocery & Ice v. Carpenter, Tex.Civ.App., 285 S.W.2d 470 it was held that a defendant was entitled to the testimony of plaintiff’s medical witness and could have secured the doctor’s testimony by the means provided by law; reiterating that “the doctrine of privileged communications does not extend to physician and patient.” The rule is logically inclusive of real estate appraiser and client.

Relevant to appellee’s counterpoint eight and consistent with the Texas decisions on privileged communications, we think that an expert valuation witness can indeed be compelled to testify as to an opinion of value which is based on an examination of the property to be valued, made during and pursuant to his engagement as an appraiser by the party adverse to the one offering the testimony. Analogous here in principle is the early case of Summers v. State (5 Tex.Ct.App. 365); 32 Am.Rep. p. 573. There a Doctor Spohn had conducted a post-mortem examination upon one Martinez but on the witness stand had declined to state the cause of the death on ground that “my knowledge was obtained by professional skill and from the deductions of experience which I consider my own property and which the county of Nueces has persistently refused to pay for.’ It was held that while a medical expert could not be compelled to make a postmortem examination unless paid for it, but an examination having already been made by him, that he should be compelled to disclose the result of that examination.

Squarely in support of appellants’ position here is City of Houston v. Autrey et al., 351 S.W.2d 948, n. r. e., where the Waco Court affirmed the admission of testimony similarly offered. There, in a condemnation suit, appellant — City—had claimed error of the trial court in permitting the landowner to offer and adduce testimony from a professional appraiser the City had employed to evaluate damages resulting from a taking. Although it had engaged and paid him to appraise the value of the property taken and damage to the remainder, the City did not call him to appear as a witness. Landowner then called him and elicited testimony on what land on the particular street had sold for in that area per square foot and also as to value of damages to the owner’s land not taken; no inquiry being made However of his opinion as to market value of the tract taken. In its opinion of affirmance, the Court, through Associate Justice Wilson, held:

“The City urges that if the court’s action in permitting this witness to testify is permitted to stand it will penalize and prevent efficient and diligent preparation for trial; that since it paid for the services of the witness in making the evaluation, appel-lees’ calling him was ‘a taking of appellant’s valuable property rights’ which it had paid for without its consent. As we understand it, the City contends the information and opinion of this witness ‘was testimony that could have been obtained by appellees in a free and open competitive market from one of the many professional appraisers within the county’. In short, the position is that the testimony of the witness it voluntarily employed to ascertain the facts was damaging before the jury, and appellant having paid for it, should be suppressed.

“We cannot subscribe to the view that the testimony of a paid witness is property, or that payment for his services gives any exclusive proprietary right. To so hold would be judicial smothering of the search for truth. A logical sequent of the City’s position, as appellee suggests, would be that a condemnor in some areas might be able to employ every qualified appraiser, use those whose testimony is considered favorable, and effectively prevent the owner from using any other as a witness.” (Emphasis ours.)

But appellee argues that if such excluded testimony constituted error same was harmless, because the issue of value had already been thoroughly developed through the testimony of other witnesses, citing 24 Tex.Jur.2d p. 50. In the same text it is stated that “Reversible error may be committed in excluding proper opinion evidence relevant to the issues if the party seeking to elicit the opinion can show that he was injured or prejudiced thereby.” This case was hotly contested on the single issue of market values. In view of the jury verdict, we cannot say that there was no probable injury to appellants in the exclusion of the testimony of Cowley. “The exclusion of expert and opinion evidence is reversible error where such exclusion is prejudicial to the substantial interests of the party offering it. The substantial rights of the party are generally held to be affetced where the excluded evidence relates to a material point.” Kennelley v. Travelers Insurance Company, 5 Cir., 273 F.2d 479, 481.

The conclusions above reached render unnecessary a discussion of further points or counterpoints.

Judgment under review is reversed and cause remanded to the trial court.

Reversed and remanded.


author: RICHARDS, Justice.

text:
    Susie Lee COUNTS, Appellant, v. Carl Aaron COUNTS, Appellee.
    No. 10974.
    Court of Civil Appeals of Texas. Austin.
    May 30, 1962.
    Rehearing Denied June 20, 1962.

      Ronald Smallwood, Karnes City, Nunn & Griggs, Sweetwater, for appellant.
    William C. McDonald, San Angelo, for appellee.
   RICHARDS, Justice.

Susie Lee Counts, appellant, filed suit for divorce in the 51st District Court of Tom Green County against Carl Aaron Counts, appellee, upon the statutory grounds set forth in Art. 4629, Vernon’s Civil Statutes, alleging the accumulation of a community estate during the marriage, asking for partition thereof, and praying for a temporary restraining order and temporary injunction pendente lite enjoining appellee from disposing of or encumbering any of the community property; directing appel-lee to pay into the registry of the Court the sum of $250.00 monthly for the support and maintenance of appellant and for the allowance of reasonable attorney’s fees. The Trial Court having granted a temporary restraining order, the hearing on the temporary injunction was set for April 28, 1961.

Appellee answered and filed a cross-action as cross-plaintiff seeking a divorce from appellant, alleging that prior to April 5, 1961, the date of filing of appellant’s original petition, he had separated from appellant, which separation was caused by actions and conduct of appellant as cross-defendant, which would entitle him to a divorce under the statutory provisions of Art. 4629, V.C.S. He further alleged that he would file a full and complete inventory of the community property as ordered by the Trial Court and prayed for partition of the community property in accordance with law unless the parties should be able to make a just and equitable division of the property between themselves.

Upon the hearing of appellant’s application for alimony pendente lite on April 28, 1961, both parties announced in open court that they had agreed to the rendition of a temporary injunction and allowance for appellant in lieu of alimony and other temporary relief for the benefit of both parties, and the Trial Court entered its order temporarily enjoining appellee from selling, disposing of or encumbering any of the community property or contracting any debts on account thereof but providing that appellee was authorized to borrow from the San Angelo National Bank such amounts of money as would be reasonably required for the payment of the cost of labor and other necessary expenses connected with the shearing of sheep belonging to the community estate, which funds were to be used by appellee solely for such purpose and which debt should constitute a charge against the community estate.

The order further provided that appellant should have the use and possession of the community homestead with the furniture contained therein and an automobile in her possession and appellee should continue to have the use and possession of a pick-up truck and other vehicles in his possession and that he should remain in possession of all other community property of the parties subject to the injunctive provisions.

Appellee was ordered to immediately sell a sufficient amount of wool produced from the sheep sufficient to provide a sale price of $1500.00 and upon receiving the proceeds of the sale to pay to appellant the sum of $750.00 therefrom to be used by her for her support and maintenance during pendency of the suit and to be charged against her interest in the community estate and that appellee should retain the balance from such sale for his support and maintenance during pendency of the suit. Ap-pellee was then authorized to sell the remaining wool produced from the sheep at such times and for the best prices reasonably obtainable as he might deem advantageous for the community estate, the proceeds to be deposited by appellee in a bank account in bis name in the San Angelo National Bank and retained on deposit subject to further orders of the Court and providing for an accounting of all expenditures made by appellee in connection with the shearing of such sheep. The order, having been approved by the parties in open court, provided that no formal writ of injunction or other process should issue but that the order should remain in effect from April 28, 1961 until further order or final judgment of the Court. All temporary relief sought by the parties which was not specifically granted was denied.

It appears from the record that between April 5, 1961, the date upon which the temporary restraining order was issued, and April 28, 1961, the date of the hearing on the application for temporary injunction, the firm of attorneys who had filed the suit for appellant had been dismissed and that Ronald Smallwood, an attorney of Karnes City, Texas, had been employed by appellant to represent her in the divorce proceedings including the hearing on the temporary injunction.

On June 1, 1961, appellant filed a motion for contempt against appellee for violation of the temporary injunction; alleging that on May 19, 1961 appellee had sold certain wool sheared from the sheep belonging to the community estate to Western Wool and Mohair Company who had paid appellee the sum of $3,019.61 and that under the provisions of the temporary injunction it became the duty of appellee to immediately pay appellant $750.00 from the proceeds of such sale which he had failed to do and that the failure of appellee to immediately make such payment to appellant constituted a violation of the injunctive order.

The Trial Court ordered appellee to appear on June 23, 1961 to show cause why he should not be adjudged in contempt and on June 8, 1961 appellee filed a sworn answer to the motion for contempt alleging that he had sold the wool as alleged through Western Wool and Mohair Company who mailed him a check therefor in the sum of $3,019.61 at Robert Lee, Texas, which was received after banking hours on June 1, 1961; that on the morning of June 2, 1961, he deposited the check in the San Angelo National Bank and issued to appellant his check on such account for $750.00 which was delivered on the same day by his attorney to Cliff Tupper to be delivered to appellant; that on May 25, 1961 his attorney advised Ronald Smallwood, one of plaintiff’s attorneys, that the wool had been sold and the court’s order had been complied with and praying that the motion for contempt be dismissed. The record does not show that the Trial Court conducted any hearing on the motion for contempt on May 23, 1961 or entered any order granting or denying such motion.

On July 17, 1961 appellant filed a motion to inspect a safety deposit box in the San Angelo National Bank in which appellee had customarily kept papers and documents pertaining to the community business affairs, which papers and documents contained evidence material to the community business and properties involved in the suit; that the bank would not permit appellant’s entry into such box without the consent of appellee who had the key in his possession, which, when used with a key in possession of the bank, would open the box, and prayed for an order requiring appellee to open such safety deposit box to permit appellant and her attorney to inspect the documents and papers and to copy or photograph such papers and documents as would, in the opinion of appellant, constitute evidence concerning the community property, which motion was set for hearing before the Trial Court on June 23, 1961. The record does not disclose that any hearing upon this motion was held or the entry of any order either granting or denying it. However, the record reveals that appellant was in possession of a key to the box at the time the motion was filed

On July 26, 1961 appellant filed an application for the appointment of a receiver and other relief, in which it was alleged that appellee was in possession of all of the community livestock of the value of approximately $17,000.00 according to the inventory made by appellee, which livestock was kept by appellee on a leased ranch upon which ranch appellee’s father and brother also pastured livestock belonging to them. Appellant then alleged that since the livestock of appellee’s father and brother were also sheep, it was within the power of appellee to commingle the community livestock with the livestock belonging to his father and brother and by reason thereof appellee’s father and brother could claim the ownership of such of the community livestock which might be of greater value than some of the livestock belonging to them and could substitute inferior livestock for the better community livestock. It was further alleged that additional fraud might be practiced in the disposition of the community livestock by appellee, his father and his brother and unless a receiver was appointed to take possession of all of the community livestock as well as the community money on deposit to appellee’s account in the San Angelo National Bank, appellee, with the connivance and aid of his father and brother, would defraud appellant of part of her community property.

Appellant further alleged that the provisions of the temporary injunction entered May 28, 1961 were being violated by ap-pellee and that she did not have any income for her maintenance during the pendency of the suit and being without funds for her support the Trial Court should allow her a sum for her support in proportion to the means of appellee under the provisions of Art. 4637, V.C.S., until the entry of a final decree. It was also alleged that although appellant had received the sum of $750.00 as provided in the order of May 28, 1961, she was required to pay a substantial part thereof to her attorney, Ronald Smallwood, in accordance with an oral contract between herself and said attorney; that since the sum of $750.00 was charged against her community interest, any order which should be construed to provide that she could not use a reasonable part of such money in paying her attorney would be contrary to Art. I, Sec. 19, Constitution of Texas, Vernon’s Ann.St. and the 14th Amendment to the Constitution of the United States as depriving her of the right of counsel to represent her and her property rights and that she should now receive out of the community funds or from the sale of community property an amount in the sum of $1,000.-00 to be used in part for her support and maintenance and in part to pay a reasonable retainer fee to her attorney Ronald Small-wood under his contract of employment.

Appellee filed his answer and reply to the application for the appointment of a receiver and other relief consisting of special exceptions, a general denial and alleging full and complete compliance by him with the provisions of the temporary injunction order.

On August 4, 1961 the Trial Court, having heard the application for the appointment of a receiver and other relief, denied the appointment of a receiver, ordered ap-pellee to file a written verified accounting, authorized appellant or any agent designated by her, upon notice to appellee or his attorney, to go upon the Coke County ranch leased by appellee for the purpose of inspecting and counting the livestock and other personal property claimed to belong to the community estate, and ordered appel-lee to pay appellant as alimony pendente lite the sum of $50.00 per week until further orders of the Court and denied the application requiring appellee to pay appellant the sum of $1,000.00 in cash out of the community funds on hand. However, prior to August 4, 1961, appellant had paid her attorney, Ronald Smallwood, the sum of $425.00 in part payment of his retainer fee of $500.00 agreed to by appellant, which was'paid out of the $750.00 received by her from appellee on June 2, 1961, pursuant to the Court order effective May 28, 1961.

The case was set for trial upon the merits on August 17, 1961. At the hearing on the application for appointment of a receiver on August 4, 1961, Mr. Smallwood advised the Trial Court that if the Court concluded not to require the payment of $1,000.00 to appellant in order that she could pay him $500.00 as a retainer fee, he would nevertheless proceed to try the case on August 17, 1961 and await such payment until after the trial. However, at the commencement of the trial although appellant appeared in person, her attorney, Mr. Small-wood, did not appear. Upon questioning by the Court appellant stated that she had no attorney due to the fact that she could not comply with her contract with Mr. Smallwood and that Mr. Smallwood advised her shortly before the date set for trial that since she could not fulfill her contract by the payment of the retainer fee, he could not try the case and would not be in Court and that therefore she was not ready to go to trial. Upon further questioning by the Court appellant announced that she did not have any money to hire another attorney and that she had not tried to get another attorney because she wanted Mr. Smallwood. In response to a question by the Court about how much time appellant needed to get another lawyer she replied that she wanted some money to get Mr. Smallwood and that she did not want to get another lawyer and that no other lawyer would satisfy her except Mr. Small-wood.

The Trial Court then proceeded to try the case upon the merits without a jury and entered judgment denying appellant a divorce and granting a divorce to appellee on his cross-action against appellant; partitioned the community estate between appellant and appellee; awarded $125.00 as attorney’s fees to the attorneys who originally filed the suit for appellant, to be paid by appellee; directed that each of the parties pay the attorney’s fees respectively incurred by them; decreed that appellee should be held harmless by appellant for any other attorney’s fees incurred by her and adjudged all unpaid court costs against ap>-pellee. Appellant filed a motion for new trial through Nunn and Griggs, attorneys of Sweetwater, Texas, which appellee answered by special exceptions and reply. The motion for new trial was overruled and appellant has perfected this appeal.

Appellant’s brief which is signed by Ronald Smallwood as one of appellant’s attorneys, presents ten points of error, the first of which is directed to the error of the Trial Court in granting appellee a divorce on his cross-action because the evidence was insufficient to authorize the granting of such divorce.

Appellee, a witness in his own behalf, testified that for over a year appellant had quarreled with him and told him every few days to get his clothes and leave which he finally did; that the quarreling went on during the night on several occasions and that when his father gave him an oil check amounting to about $80.00, appellant argued with him about it during that night and the next morning stated that she did not get her half of it although he had already given her half the amount of the check out of his own pocket because he had not had an opportunity to cash the check; that on many occasions appellant accused him of running around with other women which charges were false and that on account of appellant’s conduct in quarreling and “fussing” with him all of the time, just before he separated from appellant he went to a hospital for four or five days because he thought he had heart trouble but was advised that it was not heart trouble but that his condition was caused by mental strain; that since the separation he had recovered his health but there was no way that he and appellant could ever live together again as husband and wife.

After appellant had filed suit for divorce, appellant continued to harass appellee by filing the motion for contempt above referred to without any factual basis and the motion to require appellee to make the safety deposit box in the San Angelo National Bank available by delivering his key to the box, although the key was in her possession at the time the motion was filed, and in her motion for the appointment of a receiver, without any justification or cause whatever, accused appellee of conspiring with his father and brother to fraudulently dispose of part of the community livestock.

In addition, on the hearing of her motion for new trial appellant testified that she had no complaint about the decree of divorce in favor of appellee, but her sole complaint was that he did not receive her fair share of the community estate because she did not have her attorney present to help her get it.

The rule of law in Texas is that a divorce may be granted on the ground of cruel treatment on the part of one spouse towards the other when such cruel treatment renders their further living together insupportable. McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459. Cruel treatment as used in Art. 4629, V.C.S., means such treatment by one spouse towards the other as is incapable of being supported, unendurable or insufferable. Ingham v. Ingham, Tex.Civ.App., 240 S.W.2d 409. Whether the wife’s conduct renders further living together insupportable is largely a question .of fact. Guerra v. Guerra, Tex.Civ.App., 327 S.W.2d 625.

In reviewing the evidence, it is our duty to examine the entire record for the purpose of ascertaining whether the acts constituting the alleged cruel treatment have, been established by full, clear and satisfactory evidence. Moore v. Moore, 22 Tex. 237. The duty of passing upon the credibility of the witness and the weight to be given such testimony is within the sound discretion of the Trial Court. McGinnes, v. McGinnes, Tex.Civ.App., 322 S.W.2d 417. Acts of cruel treatment when proved although occurring after separation are also available as grounds for divorce. Mortensen v. Mortensen, Tex.Civ.App., 186 S.W.2d 297.

From a careful examination of the entire record, we are of the opinion that the judgment of the Trial Court granting appellee a divorce from appellant is supported by clear and satisfactory evidence and therefore should be sustained. Appellant’s first point of error is overruled.

Upon her second, third and fourth points of error appellant complains that the Trial Court erred in refusing to order appellee to pay appellant $500.00 out of the community funds prior to trial in order that she could pay such sum to her attorney, Mr. Smallwood, under his contract of employment, thereby denying appellant counsel of her choice to protect her property rights upon the trial in violation of the due process and equal protection provisions of the 14th Amendment to the Constitution of the United States and Sec. 19, Art. I, Constitution of Texas. It is undisputed that upon the hearing of the temporary injunction, it was agreed by appellant, through her attorney Mr. Smallwood, that she should receive the sum of $750.00 in full satisfaction of her claim for support and maintenance and attorney’s fees, which sum was to be charged against her interest in the community estate and out of which sum appellant paid Mr. Smallwood the sum of $425.00. Upon the hearing of appellant’s motion for the appointment of a receiver the Trial Court denied appellant’s request that she be paid $1,000.00 out of the community estate for her use in making further payment to Mr. Smallwood for is attorney’s fees, which request was denied by the Trial Court.

In Wallace v. Briggs (Tex.Sup.) 348 S.W.2d 523, where the Trial Court had entered an order for the payment of attorney’s fees for services rendered by various attorneys to the wife after the institution of the divorce case, under the provisions of Art. 4636, V.C.S., the Supreme Court held as follows:

“But the order here entered is in no sense temporary in its nature. It fixes the payment of attorneys’ fees for past services rendered to date of the hearing, and as to that matter is final and conclusive. We know of no such authority vested in the trial court by either statute or usage.
“The court has the power on the final disposition of the case to award attorneys’ fees to the wife, the reasonableness of which are to be determined by the trier of the facts, and they are then entered as a part of the final judgment. Even then there is no authority for the judge to summarily order them paid * * ⅜ »

In disposing of the motion for the appointment of a receiver the Trial Court awarded appellant the sum of $50.00 per week as alimony pendente lite but denied the request of appellant for an additional sum to be paid Mr. Smallwood as attorney’s fees. We hold that in entering such order the Trial Court correctly exercised its discretion. Appellant’s second, third and fourth points of error are overruled.

Under her fifth point appellant contends that the judgment of the Trial Court was erroneous and not final in that it failed to dispose of appellant’s petition or the cause of action therein stated. This point was assigned by appellant as her fourth ground of error in her motion for new trial. In his answer appellee specially excepted to such ground which was sustained by the Trial Court by agreement of the parties in open court. The action of the Trial Court in sustaining the special exception having been agreed to by appellant, the error was waived and cannot now be assigned as error and considered by this Court upon appeal. Rule 374, Texas Rules of Civil Procedure.

The Trial Court’s judgment recites that “plaintiff Susie Lee Count’s action for divorce should be denied.” In her petition appellant also prayed for a partition of the community estate and an allowance of attorney’s fees and in its judgment the Trial Court partitioned the community estate and allowed appellant a sum for attorney’s fees. All of the grounds for relief prayed for in appellant’s petition were fully disposed of in the Trial Court’s judgment. Appellant’s fifth point of error is overruled.

For her seventh point of error appellant complains that the Trial Court abused its discretion in denying appellant recovery from appellee of her reasonable attorney’s fees incurred prior to the trial and in providing that she should hold appel-lee harmless for such attorney’s fees. The Trial Court awarded reasonable attorney’s fees to the firm of attorneys who instituted appellant’s suit for divorce. The allowance of additional attorney’s fees to an attorney thereafter employed by appellant who had already received the sum of $425.00 being within the discretion of the Trial Court, a denial thereof is not per se an abuse of discretion. Wilson v. Wilson, Tex.Civ.App., 231 S.W. 830. Since the wife does not have an absolute right to attorney’s fees in a divorce suit and the award thereof being within the discretion of the Trial Court, a clear abuse of discretion must appear before such judgment should be disturbed. Walker v. Walker, Tex.Civ.App., 201 S.W.2d 61; 20 Tex.Jur.2d “Divorce”, Secs. 303, 304. It is clear to us that the Trial Court did not abuse its discretion in refusing to award the additional attorney’s fees to appellant and the judgment of the Trial Court will not be disturbed.

Appellant’s sixth, eighth and ninth points of error, grouped together, assert that the Trial Court denied appellant due process and equal protection of the law contrary to the provisions of the Constitutions of the United States and Texas in failing to advise her, being unrepresented by counsel at the trial, that she had the right to request the Court to postpone the trial on the merits for a reasonable time to permit her to hire counsel and in not postponing the trial due to the absence of two of appellant’s witnesses who, although under subpoena, were not present in Court.

As has been stated, when the case was called for trial appellant announced that since Mr. Smallwood had advised her that he would not be present she was not ready to go to trial, that she did not have any money to hire another attorney and that she had not attempted to get another attorney because no other attorney would satisfy her ■except Mr. Smallwood. At the hearing on the motion for new trial appellant testified that the trial Judge had inquired whether she desired to get an attorney and offered to postpone the hearing in order to permit her to hire another attorney which she refused to do.

The record shows that the trial Judge examined appellant in order to afford her every opportunity to protect her rights but that upon her refusal to procure another attorney to represent her, he ordered the trial to proceed. Appellant was advised by her attorney that he would not be present unless he was paid an additional sum as attorney’s fees to represent appellant. Appellant also testified on the motion for new trial that her sole complaint was not to the decree of divorce awarded appellee but to the fact that because she was not represented by her attorney she did not receive a larger share of the community estate awarded her by the Trial Court.

The failure of an attorney to perform the services for which he was employed, or his absence on the date set for trial or lack of diligence by a litigant in securing an attorney to represent him, or where a litigant fails to take steps to procure another attorney although advised that his counsel has withdrawn from the case, does not excuse such litigant’s failure to take steps to see that he was properly represented at the trial, Milam v. Gordon, 29 Tex.Civ.App. 415, 68 S.W. 1003 ; 25 Tex. Jur. “Judgments”, Sec. 161, and a new trial will be denied to a party whose counsel withdraws from the case prior to trial in time to engage the services of another attorney and fails to do so. 31 Tex.Jur., “New Trial—Civil Cases”, Sec. 72.

As stated in Strode v. Silverman, Tex.Civ.App., 217 S.W.2d 454, error ref.:

“We fully recognize the valuable right of any litigant to be represented in the trial of his case by counsel of his own selection. However, the mere absence of counsel from the trial does not necessarily constitute an unwarranted denial of such right so as to require a new trial. Ordinarily, before a new trial will be granted upon that ground it is necessary for the complaining party to allege in his motion and to submit proof upon a hearing thereof showing that his failure to be represented at the trial was not due to his fault or negligence, or that of his counsel, and that he has a meritorious defense to the cause of action asserted against him.” (Citing cases.)

Since upon the hearing of her motion for new trial appellant failed to comply with the foregoing rule of law, the Trial Court properly overruled the motion. Appellant’s sixth, eighth and ninth points of error are overruled.

By her tenth point of error appellant complains that the Trial Court in making division of the community property was guilty of an abuse of judicial discretion. Approximately 35 pages of the statement of facts upon the trial on the merits are devoted to the examination of appellee by his counsel and the Trial Court as to the amount and value of the community property accumulated by the parties during their marriage. During these proceedings the Trial Court was very careful and painstaking in his efforts to protect appellant’s rights in the community estate even to adopting the values placed upon part of the community property by appellant which exceeded the values placed thereon by ap-pellee in the inventory.

Art. 4638, V.C.S., provides that in granting a divorce the Trial Court should order a division of the estate of the parties in such a way “as the court shall deem just and right.” In the division of the community property in divorce proceedings under Art. 4638, supra, the Trial Court has a broad discretion which will not be disturbed unless an abuse of such discretion is shown. Giesler v. Giesler, Tex.Civ.App., 309 S.W.2d 949; Ingham v. Ingham, supra. In examining the record, we find that in the division of the community property the Trial Court awarded appellant a share in the community estate of a value of in excess of more than $5,000.00 over the share awarded to appel-lee.

The division of the community estate between appellant and appellee under the facts as adjudged by the Trial Court was fair and equitable to both appellant and appellee and since it does not reflect any abuse of discretion by the Trial Court, it is approved. Appellant’s tenth point of error is overruled.

The judgment of the Trial Court is affirmed.

Affirmed.