author: CADENA, Justice. MURRAY, Chief Justice.

text:
    Delmar E. COTE, Appellant, v. Anne M. COTE, Appellee.
    No. 14456.
    Court of Civil Appeals of Texas. San Antonio.
    April 27, 1966.

      Melvion R. Luter, San Antonio, for appellant.
    Tom H. King, San Antonio, for appel-lee.
   CADENA, Justice.

Delmar E. Cote appeals from the judgment of the trial court granting his wife, Anne M. Cote, a divorce on the ground of cruelty, awarding her custody of their minor child, and decreeing a division of their community property.

Appellant’s first contention is that the evidence was insufficient to support the judgment of divorce.

Since the decision of Chief Justice Hemphill in Sheffield v. Sheffield, 3 Tex. 79 (1848), it has been recognized that the ill treatment of one spouse by the other may be of such a nature as will render their further living together insupportable, even in the absence of personal violence, and that a series of vexations and deliberate insults and provocations can, under our statute, constitute grounds for divorce. There are innumerable acts or combinations of misconduct which can amount to cruel treatment under the provisions of Article 4629, Vernon's Ann.Civ. St. Counts v. Counts, Tex.Civ.App., 358 S.W.2d 192, wr. dism. The reaction to a course of misconduct is strictly personal to the aggrieved spouse, and conduct which produces no mental distress or anguish to one person may amount to an insupportable burden to another person of different sensibilities. Daughtry v. Daughtry, Tex.Civ.App., 312 S.W.2d 957, no writ. Each case must be determined upon its own facts, so that generalized statements from other cases are of little help.

The record in this case reflects a situation where the wife was earning in excess of $800.00 a month. The husband was engaged in the operation of an incorporated business, from which he drew $380.00 each month. The husband’s earnings fell short of meeting the monthly expense of maintaining the home of the parties by more than $200.00 per month, although he testified that he had always been able to support his family and that his wife worked merely because she wanted to.

From the evidence which we shall presently summarize, and from his observation of the parties while on the stand, the trial judge was justified in concluding that the husband deeply resented the superior earning ability of his wife and, as a' result, adopted an attitude which was necessarily disruptive of conjugal harmony. It is, of course, not unusual today for married women to be gainfully employed, nor is it unheard of for a wife to earn more than does her husband. Even in cases where the wife is employed, it may be that in the majority of cases the husband, nevertheless manages the financial affairs of the family. But the evidence here supports the conclusion that the husband assumed an unusual and uncongenial “watchdog of the treasury” attitude.

When the husband discovered that, from her salary of $800.00 per month, his wife was setting aside the monthly sum of $25.00 for the purpose of buying her own clothes and other personal needs, he turned white with anger and accused her of “stealing” his money. On many occasions, he disparaged and belittled his wife in public. Despite the fact that her earnings constituted better than 70% of the family’s income or, perhaps, because of that fact, he often described his wife in public, and in her presence as an elephant, an ox and a stupid person. He objected when his wife’s friends visited her in her home. On' one occasion, when a member of one of his wife’s clubs called on the wife to urge her to run for president of the organization, he ordered the visitor to leave, telling her that he did not appreciate having his wife’s friends coming to his house to talk to her. When the wife made the rather predictable comment that it was as much her house as his, he retorted that if she did not like it she “could pick up and leave.”

On the very day when, according to his testimony, his wife accompanied him to the office of a lawyer for the purpose of making an effort to resolve their difficulties and attempt a reconciliation, he closed her charge accounts without telling her about it. Less than a week before the parties separated he withdrew, without informing his wife, in excess of $2,100.00 from a savings account which they were accumulating for the purpose of educating their child, leaving a balance of only $100.-00. When first questioned concerning this withdrawal he categorically denied it, but after the records of the banking institution had been introduced in evidence, he admitted the fact. $1,400.00 of the amount so withdrawn was used by him to pay off the outstanding indebtedness on his car and the remainder, according to his testimony, he “spent for different things” which he did not identify.

The wife had been, for some time, a director of the company which her husband operated. About four months prior to their final separation a meeting of the board of directors was held, apparently without the wife’s knowledge, and at this meeting she was removed as a director. She was never informed of this action of the board and first found out about it at the trial.

Mrs. Cote testified that the strain of living with a husband who often insulted her in public and who accused her of stealing money which he described as his, although she had earned it, kept her constantly nervous and upset. When she developed an ulcer her husband responded, not with expressions of sympathy and solicitude, but with reproaches. His reaction was: “I don’t know why you have one. I’m the one that should have one. You don’t have any reason to have an ulcer.”

The conduct of the husband in this case goes beyond the mere arguments and spats which have been said to be an unavoidable part of married life. The husband treated his wife as a subordinate, not a partner, and followed a course of action designed to impress on their friends and acquaintances that she was incompetent and stupid. The trial judge was justified in finding that this course of conduct, when directed toward a woman whom the judge observed and whose sensibilities, character and personality he had an opportunity to evaluate, was of such a nature as to render the further living together of the parties as man and wife insupportable.

Appellant contends that, even if it be conceded that his course of conduct was of such a nature as to justify the granting of a divorce to the wife, she cannot rely thereon since, by continuing to live in the same house with him, she condoned such conduct.

In his answer to the divorce action appellant did not plead the affirmative defense of condonation. The wife’s testimony did show that the misconduct of which she complained spanned a relatively long period of time.

In Thomason v. Thomason, Tex.Civ.App., 332 S.W.2d 148, no writ, the Court stated that, although the best practice is that the affirmative defense of condonation should be pleaded, the trial court should consider such evidence even in the absence of such pleadings. In support of this statement, the Court cited Barta v. Barta, Tex.Civ.App., 283 S.W. 201, wr. ref., and Crittenden v. Crittenden, Tex.Civ.App., 214 S.W.2d 670, no writ.

Neither the Barta nor the Crittenden case supports the conclusion reached in Thomason. In Barta, the opinion of the Court expressly recites that the defendant had affirmatively pleaded the defense of condonation, although the averment of con-donation was in the form of a conclusion, without allegation of specific facts upon which defendant relied. Nevertheless, although apparently no special exceptions were filed by plaintiff, the Austin Court said: “Condonation has been generally held to be an affirmative or special defense, requiring the facts upon which it is based to be specially pleaded. Wright v. Wright, 6 Tex. 3; Nogees v. Nogees, 7 Tex. [538,] 539, 58 Am.Dec. 78. * * * A plaintiff in a divorce suit is certainly entitled to be informed as to the facts the defendant bases an allegation of con-donation upon before the trial, in order to be prepared to meet the issue with proof. In passing, we make mention of this matter so that appellee may amend in this particular, if he desires to do so in the event of another trial of this case.” 283 S.W. at p. 202.

Barta, then, far from holding that con-donation need not be pleaded affirmatively, is authority for the proposition that, in order for the defense to be available, the particular acts asserted to establish con-donation must be specifically set forth.

In the Crittenden case defendant argued that the evidence established, as a matter of law, a condonation of the alleged cruelty. The Galveston Court, after stating that condonation is an affirmative defense which must be pleaded, went on to say that it could “not hold that the trial court erred in refusing to sustain an affirmative defense which was not pled.” 214 S.W.2d at p. 671.

In any event, we do not believe that the evidence in this case established condonation as a matter of law. The record discloses that for several months the parties were barely on speaking terms. The wife testified that for several years she had tried to hold the marriage together for the sake of their child, and that she deliberately delayed filing suit for divorce from August, 1964, until January, 1965, because she deemed it in the best interest of the child to try to keep the family together until after the Christmas season. Further, condonation involves not only the concept of foregiveness by the offended party, it also proceeds on the idea of repentance by the offender, and it is not operative where subsequent events show that no repentance, in fact, existed. Absent evidence of repentance, evidence indicating that the offender did not repent indicates that the offended party did not condone. Armstrong v. Armstrong’s Adm’r, 27 Ind. 186; Hill v. Hill, 124 Or. 364, 264 P. 447; Rushmore v. Rushmore, 174 A. 469, 12 N.J.Misc. 575, aff’d, 117 N.J.Eq. 451, 176 A. 142.

Here, as in many cases involving cruelty, the misconduct of the defendant consisted of a series of acts committed during a substantial period of time. In such cases, the conduct of the defendant would not in any single instance, perhaps, constitute a ground for divorce. It is the continuity and persistence of the conduct that ultimately gives the plaintiff a cause of action. If continued living together is to be treated as a condonation, then a spouse who hopes for an improvement in conduct and, buoyed by such hope, continues to live with the offender, is, by the very act of tolerance, barred from securing a divorce. Tolerance by the offended spouse; is to be encouraged rather than punished. “Condonation for repeated acts of cruelty and indignities will not be inferred from toleration and association afterwards.” Arnold v. Arnold, 222 S.W. 996 (Mo.).

We cannot say that the trial court erred in concluding that the husband here never repented. His actions, shortly before the parties separated, in closing the wife’s charge accounts, without her knowledge, and in practically depleting their savings account, without her knowledge, support the conclusion that his heart was free of repentance and that his attitude toward his wife had not changed. His part in the surreptitious removal of his wife as a director of the company which he operated, although it may, perhaps, not be classified as cruel treatment since he concealed his action from her, further evidences a persistence of his hostile attitude. In this state of the record, we cannot say that the trial court abused its discretion in refusing to sustain a defense which was not pleaded. Crittenden v. Crit-tenden, supra.

Finally, appellant asserts that the judgment rendered by the trial court relating to the division of the community property does not conform to the judgment which it announced from the bench at the conclusion of the trial. Appellant’s principal complaint appears to be that although the trial judge stated that an appraisal would be made of all the community property, the record fails to disclose the fact that any appraisals were presented to the court.

The judgment in the record recites that each party shall pay one-half of the court costs, which “shall include any and all appraisal costs incurred in this proceeding.” The judgment then describes the amounts of “said fees” and names the persons to whom they shall be paid.

These recitals are sufficient to show, on the face of the judgment itself, that the community property of the parties was in fact appraised. We must conclude that the trial judge, in making the division of the community property, considered such appraisals. Since appellant does not contend that the division of the property was not fair and equitable, there is no basis for disturbing the trial court’s action.

The judgment of the trial court is affirmed.

MURRAY, Chief Justice.

I do not concur with the opinion of the majority.

Appellent’s first point is that the evidence is insufficient to support the judgment of divorce, and that appellee failed to establish her allegations by full and satisfactory evidence.

Anne M. Cote was called as a witness and by her evidence, in my opinion, she failed to establish grounds for divorce. She testified that she and her husband had been talking of a divorce for several years, and this past August (Aug. 1964) it was finally discussed, but she did not want to take any action until after the holidays. She knew that unless the family was kept together during the holidays it would be very upsetting to their twelve-year-old son, Dennis. She was asked by counsel what prompted the suit for divorce, and she answered: “Well many, many different things have prompted me over the years. The way he has treated me, and I just hate to go into everything, but just recently, after we had our discussion at Carol’s office * * * I went back to my office, and went to work, and he left me. I don’t know where all he went, however, he was very busy cutting off all of my credit at Sears and Joskes.” The record shows that Anne earned some $825.00 per month as an employee of Emerson & Company, and that her husband, Delmar Cote, drew the sum of $380.00 out of the floor covering company that was owned by him and others. Anne undertook to testify that Delmar had drawn $2,110.48 out of an account they had with the San Antonio Savings Association, but an objection was offered to this testimony and was sustained. The fact was later established by an officer of the Savings Association. The account was supposed to be for their son’s education. She had requested, a number of times, that the account should be carried in her name as well as his, but Delmar refused. He wanted everything in his name.

Mrs. Cote admitted that she and Dee, as she called her husband, had breakfast together on the morning of January 13, 1965. She prepared the breakfast and she, Dee and their son, Dennis, ate together. As to what conversation took place, she said there was none. She simply told him breakfast was ready and he came in and ate. Dee went on to work and was served a little later that morning with a citation in the divorce case and a temporary injunction.

Mrs. Cote testified that on the surface she and Dee had a tranquil and peaceful marriage because she did not like to argue. She would usually do anything to avoid an argument. She had been hospitalized during their marriage for tension and it was discovered that she had a duodenal ulcer. This took place in August, 1961. Mrs. Cote was asked, “And, did you ever get ill again?” She answered: “Yes, I had strep throat in November, 1965 (the date is in error, the trial was in April, 1965), which I suffered after effects from, and developed a painful lump in my leg, and in, and I was three weeks off from work, and for quite sometime I was pretty disabled, for at least three months, and * * *• (she undertook to say what the doctor told her, but it was excluded by the trial court).”

She testified that during these times she was “most nervous” and “constantly upset.” She was then asked, “And why were you constantly upset?

A. Because I was having to face Dee every day, and try and get along with him, I tried everything to keep our home together for Dennis’ sake.
Q. As time progressed, and as the fall of 19d5 came along, what was the condition of your marriage with regard to arguments and tranquility around your household?
A. We had fewer arguments than before, because we weren’t speaking very much.
Q. I see. Why were you all not speaking?
A. Because it had just come to the point where he knew my feelings on the subject, and he wanted to make an agreement to where maybe we could work things out for Dennis’ sake. I said, I have been trying for ten years to keep the home together for Dennis’ sake, and all it is doing is upsetting me.
Q. I see. Now, when did you all have your first discussion about a divorce? I’m speaking specifically about the situation in January of 1964?
A. That was in August.
Q. You said there was a discussion about a divorce in August?
A. Yes.
Q. * * * From your first discussion, about a divorce in August, did your attitude relative toward the marriage change since then?
A. Did my attitude change?
Q. Yes, did your’s?
A. No, it did not.
Q. Well, did Dee’s attitude change at any time?
A. Yes, it did, because he was so over nice to Dennis, especially, and we — I even called him down one time about Dennis, and he said, ‘well, I realize I won’t have him very long. I know what the Texas law is, and I want to do everything I can do to cause his favor, if I have the opportunity.’
Q. What was his relationship with Dennis prior to this time?
A. Well, sometimes he would get out and play ball with him like any father would, and he did coach the team Dennis was on, but usually he was too busy or couldn’t be bothered, or just as if it was too much trouble.
Q. What has his attitude become since this — since this matter of divorce came up?
A. Well, he has, I feel sure, done everything possible to try and win Dennis. * * *
Q. Have you noticed any difficulty with Dennis after Dennis is with Mr. Cote?
A. Absolutely. He is extremely belligerent. He does not want to do anything I tell him to do. He is very hard for me to handle, and I have even had to talk with one of his teachers at school, who has problems with him.
Q. Does Dennis — does Dennis berate you?
A. When he comes back from being with his father on several occasions he has, and he is a very sensitive, lovely normal child, and does not ordinarily act like that.
Q. Do you try to be normally strict with him, and try to guide Dennis?
A. I am the one in charge of his upbringing, and of course, I have to be strict with him.
Q. Going back to the situation in January of 1965, just prior to this divorce being filed, what brought you to the realization to file this divorce?
A. Well, after I realized Dee was just pressing money, for every penny he could get out of me, and he made the remark earlier, I never had to work, and that is not so, because I went — I always said I would never work after I started my family and when we moved back here from Corpus we were paying rent here and on our house there, and he wasn’t making very much, and he was so unpleasant to live with, he said he just didn’t know how he was going to meet the bills. T don’t know how I’m going to meet them,’ and finally I said, ‘you know, 1 said I didn’t want to work after I started my family’—
Q. Just a minute—
A. But I told him if it would help I would go back to work for a while.
Q. Let me interrupt at that point. As I understand you said you went to work because it was necessary to keep your family financially solvent?
A. It was absolutely necessary.”

Mrs. Cote testified that Dee had insulted her in public by calling her an “elephant and ox” and telling people she was stupid. She further testified he threatened to do her bodily harm. “He has grabbed me and twisted my arm, and I had blue spots as a result, but he would not strike me. After he struck me years back, I told him he better not ever lay a hand on me again.” She stated that on one occasion he had bluntly ordered a friend of hers to leave the house.

“Q. Did you ever argue with your husband, or promote an argument with him, to your knowledge?
A. I didn’t pick any arguments with him. On occasion we would argue about Dennis, because he was so rough with Dennis, and then, almost all of our other arguments were over money.
Q. Do you know of anything you have done, which has caused this condition to arise which led to your seeking this divorce ?
A. No.”

Mrs. Cote admitted on cross-examination that she had gone out at night with her sister-in-law, and had seen a man whose first name is Dan, and that they had one or two intoxicating drinks together, and that she did not return home until after midnight. This occurred both before and after she and Dee separated. She had told Dee that she “had learned to almost hate him quite sometime back, and he was very aware of the past, and he knew I didn’t love him.” Most of their misunderstandings were about money.

Article 4632, Vernon’s Ann.Civ.St., provides in effect that a divorce can only be granted upon full and satisfactory evidence, whether contested or not.

Appellee seems to take the position that appellant having agreed to withdraw his contest of the divorce cannot now be heard to contend that the evidence relating to the grounds of divorce were not supported by full and sufficient evidence. Whether or not appellant agreed to withdraw his opposition to or contest of the divorce is immaterial because, in any event, the court is prohibited from granting such divorce unless the grounds relied upon are established by full and satisfactory evidence both to the trial court and to the Court of Civil Appeals. Art. 4632 reads as follows:

“No suit for divorce shall be heard, or divorce granted, before the expiration of sixty (60) days after the same is filed. In divorce suits the defendant shall not be compelled to answer upon oath nor shall the petition be taken as confessed for want of answer, but the decree of the court shall be rendered upon full and satisfactory evidence, upon the judgment of the court affirming the material facts alleged in the petition. Either party may demand a jury trial.”

Bell v. Bell, Tex.Civ.App., 389 S.W.2d 126; Hausladen v. Hausladen, Tex.Civ.App., 388 S.W.2d 952; Meyer v. Meyer, Tex.Civ.App., 361 S.W.2d 935; Gordon v. Gordon, Tex.Civ.App., 359 S.W.2d 134; Schyrock v. Schyrock, Tex.Civ.App., 353 S.W.2d 50.

Appellee’s divorce was sought on the grounds set out in Sec. (1) of Art. 4629, Vernon’s Ann.Civ.St., reading as follows:

“(1) Where either party is guilty of excesses, cruel treatment, or outrages toward the other, if such ill treatment is of such a nature as to render their living together insupportable;”

Parties cannot be divorced for incompatibility, or because they live unhappily together, for marital wranglings, or merely because they possess tempers. McNabb v. McNabb, Tex.Civ.App., 207 S.W. 129.

Before cruel treatment can be held to be of such a nature as to render the further living together of the spouses insupportable, it must be unendurable, intolerable, insufferable. Solis v. Solis, Tex.Civ.App., 317 S.W.2d 237; Ballard v. Ballard, Tex.Civ.App., 186 S.W.2d 294; Rowden v. Rowden, Tex.Civ.App., 212 S.W. 302.

The burden of proof was upon Mrs. Cote to show not only by the preponderance of the evidence but, further, by clear and convincing evidence, to the satisfaction of not only the trial court but also of this Court, that her husband had been guilty of excesses, cruel treatment or outrages toward hér of such a nature as to render her further living with him as his wife unendurable, intolerable and insufferable. This, in my opinion, she has not done. She says that her husband struck her many years ago and she warned him not to let that happen again, and he has not done so since. She said that at one time he grabbed her by the arm and twisted it, causing blue spots. She did not state when this happened or under what circumstances it occurred. It could have been a friendly scuffle that happened, many years ago, so far as this record shows.

Mrs. Cote was hospitalized for tension and they found she had a duodenal ulcer. She was asked what caused these troubles, but she did not answer, objection having been sustained to her attempted answer. She also suffered from a strep throat. She could hardly blame this on Dee. She said she was constantly upset, and when asked why, she replied: “Because I was having to face Dee every day and try and get along with him. I tried everything to keep our home together for Dennis’ sake.”

Appellee has not shown herself so free from fault, and appellant so guilty of excesses, cruel treatment or outrages toward her, unprovoked by her in any way, as to render their further living as man and wife unendurable, intolerable and insufferable.

In my opinion, the trial court erred in granting Mrs. Cote a divorce upon the evidence in this record. I would reverse the judgment and deny the divorce.


source: Caselaw Access Project

author: PHILLIPS, Justice.

license: Public Domain

text:
    Robert S. CALVERT et al., Appellants, v. HUMBLE OIL & REFINING COMPANY, Appellee.
    No. 11403.
    Court of Civil Appeals of Texas. Austin.
    May 11, 1966.
    Rehearing Denied June 8, 1966.

      Waggoner Carr, Atty. Gen., Hawthorne Phillips, 1st Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., H. Grady Chandler, Kerns B. Taylor, Asst. Attys. Gen., Austin, for appellants.
    McGinnis, Lochridge, Kilgore, Hunter & Wilson, Austin, Craig L. Vollmar and Walter B. Morgan, Dillard Baker, Houston, for appellee.
   PHILLIPS, Justice.

This suit was brought by Humble Oil & Refining Company, a Delaware Corporation and the appellee here, against the Comptroller, and others, to recover $73,201.00 in franchise taxes for the year 1963 paid under protest. Humble alleged that certain interest and dividends which the Comptroller included as an additional basis for the franchise taxes paid by Humble were received from other affiliated foreign corporations and did not constitute gross receipts from its business done in Texas within the meaning of Article 12.02, Title 122A, Taxation-General, V.A.T.S.; that such were in the nature of nonbusiness income and independent of the conduct of its Texas business; that such income is attributable to the State of Delaware, its legal domicile and that the Comptroller had not established a taxable domicile here in Texas; that in requiring its income from the above-mentioned intangibles to be reported in the Texas Franchise allocation formula, the Comptroller was giving extra-territorial effect to the Texas tax laws in violation of Article 1, Sections 3, 16 and 19 of the Texas Constitution, Vernon’s Ann.St., and Article 1, Section 8, and the Fourteenth Amendment of the U.S. Constitution, and resulted in an illegal multiplicity of taxes on the same capital.

The last contention, set out above, dealing with constitutionality was abandoned by Humble on appeal and will not be discussed further other than to state that it is conceded by both parties to this appeal that the position taken by the Comptroller is not inimical to either the Federal or State'Constitution.

The Comptroller defended his position on the theory that the dividends and interest in question were received in Texas by Humble and constitute a part of its gross receipts from its business done in Texas, the state of its “business or commercial domicile,” the location of its principal business office, the heart and center of its operations, where the direction and control of the corporate activities, including the interest and dividends in question were used in Humble’s business. The Comptroller cites, as the basis of his defense, the change made in the law by the 1959 Legislature which will be set out in full and discussed further in this opinion.

Both parties moved for sumary judgment and that of appellee Humble was sustained and judgment rendered thereon for a major portion of the taxes paid under protest.

We reverse and render the judgment of the trial court and hold that Humble take nothing by its suit.

Appellant Comptroller is before this Court with five points of error, briefed together, which can be summarized in the following questions: Can Humble, a foreign corporation incorporated in the State of Delaware, have a business or commercial domicile in Texas for the purpose of taxation by the State? Are the interest and dividends or intangibles in question, admittedly not taxable by the law and the administrative rulings of the Comptroller prior to 1959, taxable by the law as it was amended in 1959? We answer both of these questions in the affirmative.

The Texas franchise tax is a tax upon the privilege of doing business within the State. The privilege, both of domestic and foreign corporations, is measured by the Corporation’s total capital, surplus and long term debt apportioned to the State. The apportionment ratio is a fraction, the numerator of which is the gross receipts from business done within Texas and the denominator of which is the gross receipts from the Corporation’s entire business.

The general common law rule applicable to the taxing of intangibles is that they are taxable at the owner’s domicile or State of incorporation. Humble contends that this common law rule should be applied to the intangibles in question as there has been no specific law enacted by the Legislature to change the general rule, or, in other words, the Legislature has never passed a law authorizing a commercial or business domicile for a foreign corporation.

We -cannot agree with this contention. The theory of a commercial domicile has been a part of the common law since ancient times in both England and in the United States as an exception to the general rule announced above. See Wheeling Steel Corporation v. Fox, 298 U.S. 193, 80 L.Ed. 1143, 80 L.Ed. 1143; First Bank Stock Corporation v. State of Minnesota, 301 U.S. 234, 57 S.Ct. 677, 81 L.Ed. 1061 (1937). This theory has also been recognized in Texas as the common law rule. City of Amarillo v. Carter Trucking, Tex.Civ.App., 380 S.W.2d 177; Wirt Franklin Petrol Corp. v. Gruen, 5th Cir., 139 F.2d 659.

While there are no cases in Texas directly in point, we hold that if the facts are such that the exception to the general rule is applicable, it should apply.

Prior to September, 1959, Humble was a domestic corporation with a permit to do business in other states. Thereafter it became a foreign corporation incorporated in Delaware. Its Delaware charter and Texas permit authorize Humble to make loans and investments out of its surplus funds and deal in securities from which the interest and dividends are in issue here. It carries on business in forty nine states and is qualified to do business in all fifty. It maintains a domiciliary office in Washington, Delaware and region and division offices in New York City, New Orleans and Tulsa. It received $19,510,117.00 in stock dividends and $6,311,383.00 in interest during the tax year of 1963. The stock certificates are kept in its offices in Houston, Texas and the notes are located either in Houston or in the offices of the organizational unit which carries the account on its books. The Board of Directors’ meetings and the stockholders’ meetings have always been held in Houston, Texas. At the end of 1963, all but sixteen of the fifty-one directors and officers resided and worked in the Houston office. Those in the Houston office include the Chairman of the Board and Chief Executive officer, President and Director, two Executive Vice Presidents and Directors, General Counsel and Director and his associate, Vice Presidents for exploration, Supply and Transportation for Production and for Public Affairs, the Controller and his two assistants, Secretary and several assistants, Treasurer and several assistants. Others are stationed at designated regional offices outside Texas. There seems to be no controversy over the fact that Humble’s actual corporate headquarters or business or commercial domicile is in Houston, Texas.

This brings us to our second question as to the correctness of the Comptroller’s position under the present franchise tax law.

In 1930, Article 7084, V.C.S., relating to foreign corporations was amended, the language specifying that the receipt ratio in question to be “the gross receipts from its business done in Texas bears to the total gross receipts of the corporation from its entire business.” (Italics added.) This formula remained in effect until the amendment in question of 1959 even though the rate was increased from time to time by the Legislature. Prior to the amendment of' 1959 by administrative interpretation and application of the Statute, the Comptroller ruled that if dividends and interest were paid by a Texas Corporation (i.e., one incorporated in Texas), they were considered as coming from a Texas source, and such receipts were included in the numerator of the above-mentioned formula. This formula or rule was derived from that portion of Article 7084 specifying “from its business done in Texas.” This ruling further specified that if dividends and interest were paid by a corporation chartered in a State other than Texas, such receipts were not included in the numerator of the formula. Thus the location of the payor was the deciding factor.

In 1959, Article 7084 was changed and recodified in Article 12.02, Title 122A, Taxation-General, R.C.S. of Texas and provided as follows:

“ * * * the term ‘gross receipts from its business done in Texas’ shall include:
(a) Sales of tangible personal property located within Texas at the time of the receipt of or appropriation to the orders where shipment is made to points within this State,
(b) Services performed within Texas,
(c) Rentals from property situated, and royalties from the use of patents or copyrights, within Texas, and
(d) All other business receipts within Texas.”

Humble contends that there has been no change in the amendment of 1959, consequently the long standing administrative interpretation of the Franchise Tax Statute by the Comptroller has been sanctioned by the Legislature.

We do not agree with this. We hold that the wording of Section (d) “all other business receipts within Texas” means business receipts received in Texas is applicable to the intangibles in question thus placing the emphasis on the place of. receipt rather than the place of the payor as the law was previously interpreted.

In American Surety Co. of New York v. Axtell Co., 120 Tex. 166, 36 S.W.2d 715, the Court quotes with approval 36 Cyc., Paragraph 10, p. 1165, as follows:

* * * An amended act is ordinarily to be construed as if the original statute had been repealed, and a new and independent act in the amended form had been adopted in its stead; or, as frequently stated by the courts, so far as regards any action after the adoption of the amendment, as if the statute had been originally enacted in its amended form.
?k ⅜ * ⅜ * ‡
It will be presumed that the Legislature, in adopting the amendment, intended to make some change in the existing law, and therefore the courts will endeavor to give some effect to the amendment.”

It is common knowledge that the Legislature in 1959 was actively seeking additional ways in which to finance state government.

In addition, we have the construction presently given the act by the administrative officer designated by the Legislature to enforce the act. The rule in this regard is that construction of a statute by the official charged with its administration should be sustained unless clearly erroneous. See Yoakum County v. Slaughter, 109 Tex. 42, 195 S.W. 1129; Thompson v. Calvert, Tex.Civ.App., 301 S.W.2d 496.

Humble contends that, should the .court hold that the prior law has been changed, the interest and dividends in question do not constitute business receipts, that such receipts are nonbusiness receipts and should be excluded. Humble argues that it is in the business of producing, manufacturing and marketing crude oil, natural gas and their products and is not in the business of dealing in securities. That the receipt of dividends and interest is incidental to plaintiff’s operations and constitutes 0.8% of plaintiff’s total receipts.

We overrule this contention. Investment income is either business income or non-business income, depending on whether the business is unitary or not. A business is unitary if its investment operations are of a mutual benefit to its general operations, that is, is the income from the general operations placed in investments- and is the income from investments used in the general business. If so, the corporation is conducting one business only, single and unitary in scope, and the income from intangibles is included in the general apportionment. First Bank Stock Corporation v. State of Minnesota, 301 U.S. 234, 57 S.Ct. 677, 81 L.Ed. 1061; Great Lakes Pipe Line Company v. Commissioner, Minnesota Supreme Court, 1965, 138 N.W.2d 612. There is no indication in the record that Humble’s investment activities are separate from its general activities. Consequently, we hold that the income in question is business income.

Likewise, we overrule Humble’s contention that the “business situs” rule is applicable here as an exception to the commercial domicile rule. Under Humble’s reasoning, the effect of such a business situs exception would be that a portion of the intangibles in question have developed a taxable situs of their own, separate and apart from the commercial domicile of the owner, which, as we have held above, is Texas. Humble reasons that this portion of the intangibles are subject to the exception as the income-producing activities of the Humble Pipe Line Company occur partly within and partly without the State of Texas. That for the year in question Humble Pipe Line Company received 41.42 per cent of its total receipts from sources outside the State. In addition, Humble points out that the bulk of its interest receipts was from investments with its agent, a New Jersey Corporation. That the agent managed this investment from its offices in New York City. That the invested funds were from New York Banks, and the proceeds were received in New York. That the remainder from sources outside of Texas was derived from trade notes and accounts receivable, mortgage loans, loans to dealers and other investments arising from transactions with debtors located outside the State of Texas.

We.hold that the taxable situs of these intangibles under Section (d) of Art. 12.02 is in Texas, Humble’s commercial domicile, Holly Sugar Corp. v. McColgan, 18 Cal.2d 218, 115 P.2d 8.

For comparable cases in other jurisdictions see Udylite Corp. v. Michigan Corp. & Securities Commission, 319 Mich. 1, 29 N.W.2d 132; Irvine Company v. McColgan, 26 Cal.2d 160, 157 P.2d 847, 167 A.L.R. 934, and J. M. and M. S. Browning Co. v. State Tax Commission, 107 Utah 457, 154 P.2d 993.

We reverse the judgment of the trial court and render judgment that Humble take nothing by its suit.

Reversed and rendered.

      . The trial court allowed appellee to recover $69,921.00 of the $73,201.00 sued for, the difference apparently resulting from taxes recovered by the Comptroller, the basis of which were intangibles received by Humble from business, the sources of which were within Texas.

      . “FIRST POINT: The error of the Court in granting Appellee’s Motion For Summary Judgment on the ground that no controverted fact issue was presented hy the record on the question of whether the business or commercial domicile of ap-pellee was in Texas and thus whether its income from its intangibles, such as interest and dividends received from out-of-state corporations and entities should be reported in its Texas franchise tax allocation formula and return.
      SECOND POINT: The error of the Court in granting Appellee’s Motion For Summary Judgment on the ground that the dividends and interest received by it from foreign corporations or other entities as the result of its investment in intangibles (stocks, bonds, etc.) owned and held in Texas, the state of its business or commercial domicile, did not constitute ‘business receipts within Texas’ within the meaning of the franchise tax allocation formula of the 1959 Amendment, Art. 12.02, Title 122A, Taxation-General, R.C.S. of Texas.
      THIRD POINT: The error of the Court in granting Appellee’s Motion For Summary Judgment on the ground that the Appellee’s intangibles (interest and dividends received from foreign corporations and entities) were in the nature of non-business income and independent of the conduct of Appellee’s Texas business and thus not reportable as ‘business receipts within Texas’ as comprehended by the franchise tax allocation formula of the 1959 Amendment, Art. 12.02, Title 122A, Taxation-General, R.C.S. of Texas.
      FOURTH POINT: The error of the Court in granting Appellee’s Motion For Summary Judgment on the ground that, in requiring Appellee’s income from its intangibles (interest and dividends received from foreign corporations and entities) to be reported in the numerator of the Texas franchise allocation formula, the Comptroller of the State of Texas was thereby giving extraterritorial effect to the Texas laws in violation of Art. 1, Sections 3, 16, • and 19 of the Texas Constitution, and Article 1, Section 8, and the Fourteenth Amendment of the U.S. Constitution, thereby resulting in illegal multiplicity of taxes on the same capital.
      FIFTH POINT: The error of the Court in denying and failing to grant Appellants’ Motion for Summary Judgment that Ap-pellee take nothing by its suit on the basis that since Appellee’s business or commercial domicile was in Texas, the Appellee’s income from its intangibles of interest and dividends received from out-of-state corporations and entities are properly business income and not independent of Appellee’s Texas business and thus reportable in the numerator of the franchise tax formula and come within the phrase of Art. 12.02(d), Title 122A, Taxation-General, R.C.S. of Texas, ‘all other business receipts within Texas’ under the undisputed facts developed in the record, and in view of the fact that such a holding does not involve illegal multiplicity of táxes, or give extraterritorial effect to any Texas laws or violate the Texas or federal Constitution.”


author: NYE, Justice.

text:
    Lois Jones SHIREY, Appellant, v. Gerry ALBRIGHT, d/b/a Phillip Albright Company, Appellee.
    No. 189.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 26, 1966.
    Rehearing Denied June 16, 1966.

      Wade & Howard, by Virgil Howard, Corpus Christi, for appellant.
    Boone, Davis, Cox & Hale, by Owen D. Cox, Corpus Christi, for appellee.
   OPINION

NYE, Justice.

This is a suit for a real estate broker’s commission. The broker, Gerry Albright, brought suit against the appellant Lois Jones Shirey, a feme sole, for a six per cent commission due under an “authorization to sell” listing contract and for attorney’s fees under Art. 2226, Vernon’s Ann.Civ.St. Trial was had before the court without the intervention of a jury resulting in a judgment in favor of the broker in the amount of $1285.50, plus attorney’s fees in the amount of $350.00. The parties will be referred hereafter as they were in the trial court.

The facts that gave rise to this dispute are principally admitted by both parties and/or are contained in the trial court’s findings of fact. Material differences as to the facts will be noted specifically. The defendant owned a house and lot in Corpus Christi, Texas, which she desired to sell. She contacted the plaintiff with regard to employing him to sell her home for her. The defendant called at the plaintiff’s office and spoke with Mrs. Mary Young Knight, a real estate saleswoman employed by the plaintiff. The listing agreement was prepared by Mrs. Knight and signed by both parties on the 20th day of January, 1965. This agreement authorized plaintiff to sell or procure a purchaser for the defendant’s home for the sum of $21,000.00 or subject to FHA appraisal price. A subsequent appraisal by the FHA resulted in an appraisal for FHA loan purposes in the amount of $21,425.00 conditioned upon certain minor repairs and a termite inspection. The defendant was mailed a copy of the FHA appraisal and she expressed a willingness to sell her property as financed by the FHA subject to the terms of that appraisal. The plaintiff subsequently showed the home to Commander James E. Sanders of the U.S. Navy who was interested in buying a home in Corpus Christi. The plaintiff or one of his employees succeeded in getting a written offer from Commander Sanders to purchase the defendant’s home subject to the following conditions: (1) Sanders being able to obtain a FHA loan in the amount of $20,100.00, (2) immediate occupancy pending the approval of the loan application, (3) the defendant’s agreement to make the minor repairs and have the termite inspection required by the FHA appraisal, (4) the defendant to furnish evidence that all utilities and appliances were in satisfactory working order and finally, (5) that defendant is to pay “all permissible closing costs.”

The Commander’s offer to purchase was presented to the defendant by Mrs. Knight on or about the 15th day of February, 1965. At this meeting the executed contract of Commander Sanders was fully discussed, particularly in connection with the subject of the closing costs. Mrs. Knight explained to defendant what costs she would be obligated to pay under the contract and gave her a breakdown as to which costs constituted “permissible closing costs” and which costs were the seller’s usual closing costs. Although the defendant testified otherwise at the trial, she stated in her deposition that she was told that she would be obligated to pay both sums as set out in the sales contract. There was no evidence that any other provisions of the contract were objected to or discussed by the defendant. After such explanation and discussion, the defendant agreed to the terms of the contract. She signed it and returned the contract to Mrs. Knight. As Mrs. Knight was leaving, the defendant called her back into the house and took back the contract and scratched out her name. The defendant stated that she was not going through with the sale; that she did not approve of the provision in the contract wherein it was provided that she pay “all permissible closing costs.” The court found that it was at this time, the defendant had changed her mind and no longer desired to sell her house on the terms expressed in the sales contract.

The plaintiff, being anxious to complete a sale on terms acceptable to both parties entered into the transaction personally. Plaintiff telephoned the defendant and tried to get her to go ahead and sell her house. The court found that following the scratching out of her name, the defendant had various conversations with the plaintiff and his agents; and that in these conversations the defendant represented that she was willing to sell her home on the terms as expressed in the Sanders sales contract if the provision requiring her to pay “all permissible closing costs” were removed. Plaintiff testified “it encouraged me as a broker to get a secondary contract.” The trial court found that the plaintiff, relying upon these representations of defendant, extended his efforts to obtain a second contract from Commander Sanders to purchase the property. The plaintiff then secured a second sales contract executed by Commander Sanders dated February 17, 1965, which was in all material respects the same as the first contract, except that it did not include the “all permissible closing costs” provision. The defendant rejected this contract in no uncertain terms.

Defendant-appellant by her first, second, third and fifth points contends in effect that plaintiff-appellee is not entitled to a real estate commission because he did not produce or procure a purchaser willing and able to buy her property on the terms specified in the listing agreement; because the signed contract was never delivered to the purchaser before she withdrew her acceptance ; that her acceptance was communicated only to her own agent; and that plaintiff was a proposed third party beneficiary in a proposed contract of sale that never became effective. Both parties quote from 9 Tex. Jur.2d 732, Brokers, Sec. 44:

“Recovery of a commission by a broker requires proof that he has performed the service contemplated by the terms of his employment. It is said that there are three methods by which a real estate broker may earn a commission: (1) by procuring from a purchaser a valid enforceable contract on the terms proposed by the vendor; (2) by producing a purchaser to whom a sale or exchange is in fact made on terms satisfactory to the vendor; (3) by producing a purchaser, ready, able, and willing to buy or exchange on terms specified in the contract of employment, and who offers to do so. When the right to recover is based on one of these situations, the principal may not effectively urge that another situation in which the broker might have earned his commission has not been alleged and proved.”

The defendant argues that the sales contract different in certain respects from the listing agreement (i. e., permissive closing costs, repairs, termite inspection, FHA loan and possession) and therefore such variance from the listing agreement is fatal to an enforceable contract. The defendant quotes from the case of Quaile v. McArdle, 244 S.W.2d 695, Tex.Civ.App.1951, ref. n. r. e., where Justice Norvell said:

“It is well settled that the offer to purchase must meet the terms of the listing agreement. Even a slight variance will be fatal.”

Plaintiff agrees with the law as quoted from Texas Jurisprudence and from the above-cited case and says that he has met the terms of the listing agreement and refers us to a pertinent portion of the listing agreement which reads as follows:

“If a sale or exchange is made or a purchaser procured by you, the undersigned or any other at the price and upon the terms specified herein, or at other terms and price accepted by the undersigned or if sold or exchanged within six months after the termination of this contract to anyone who was shown the property from whatever source during its life, the undersigned agrees to pay you as commission 6% of the selling price.” (Emphasis supplied.)

Plaintiff states that he has never contended that he furnished a purchaser willing to buy defendant’s property on the exact terms set forth in the listing agreement. However, he does contend that he did procure a purchaser at other terms and price accepted by the defendant, and is therefore entitled to his commission under the “authorization to sell” contract.

The “authorization to sell” listing agreement does not require the plaintiff to procure a “sale” of the property on the exact terms set forth in the listing agreement. The contract provides that in consideration of the listing of the property with the plaintiff, the plaintiff agreed to use his diligence in procuring a purchaser. This he did, actually at a sales price that was higher than the amount set forth in the listing agreement. The contract not only gave the plaintiff an exclusive right to sell the property, but by its terms he could offer the property at any price and upon any terms, and if the terms and price were accepted by the defendant, then the defendant became obligated by her .agreement to pay him the specified commission. Defendant’s promise to pay a commission to plaintiff upon the happening of any one of several contingencies was in the form of a unilateral contract. This type of contract is completed by the promisee’s performing the act or acts called for, not by such promisee making any reciprocal promise or promises. 13 Tex.Jur.2d 939, Contracts, Sec. 20; see 17 C.J.S. Contracts, § 8, p. 579. When defendant was presented with a purchaser offering to buy the property, upon terms and at a price which the defendant once accepted, she then became obligated on her listing contract to the plaintiff. There has never' been any contention made that Commander Sanders was not a qualified purchaser, or that he would not perform the contract as signed. Nor is there any evidence of fraud. However, even after the defendant signed the contract she could repudiate it as far as Commander Sanders was concerned as she apparently did. It is true as appellant contends, that the defendant would not be obligated to sell the property to Commander Sanders if her acceptance of his bilateral contract was not communicated to Sanders and was rejected before the contract had been placed out of her control. Here, there was never any delivery of the contract to anyone other than to appellant’s own agent. Delivery to an agent is not delivery to a third party and there is no delivery so long as the instrument is still in the control of the principal.

Appellant contends that the phrase “accepted by the undersigned” as used in the “authorization to sell” should be construed to mean that such acceptance could only be expressed by the completion of a binding contract of sale between Sanders and the defendant. We do not believe that this interpretation is supported by the listing agreement. The “authorization to sell” calls for the acceptance of the “other terms and price” and makes no requirement as to an acceptance of a contract of “sale” or any other specific form of acceptance.

Defendant argues that plaintiff is not a beneficiary under the first sales contract; that since the contract was never completed between the purchaser and the seller, plaintiff could derive no benefit from it. This contention is without merit. Plaintiff’s agent came to defendant with the sales contract, explained it to her and requested that she accept it. Defendant was not bound to take the deal, and if she refused, she owed the plaintiff nothing. But, on the other hand, if the sales contract met with her approval and she desired to take the deal offered, she was then obligated to pay plaintiff for his services for procuring such a purchaser. See Donahue v. Fuller, 5 S.W.2d 1037, Tex.Civ.App.1928; Mason v. Able, 215 S.W.2d 377, Tex.Civ.App.1948, n. r. e.; Miller v. Carlson, 390 S.W.2d 64, Tex.Civ.App.1965, n. r. e. Appellant’s points 1, 2, 3 and 5 are overruled.

Plaintiff contends that he is also entitled to recover his commission by virtue of obtaining the second sales contract. The trial court concluded that at the time the plaintiff procured the second sales contract and informed defendant of the terms of the offer by Commander Sanders that she was bound to pay a commission because she was estopped by her conduct and representations to object to any of the provisions of the said sales contract that might have deviated from the express terms of the listing contract. The defendant-appellant in her points four, and seven through eleven attacked the trial court’s findings of fact and conclusions of law wherein plaintiff is permitted to recover his commission on the theory of estoppel.

During the period from February 15 until the 17th there were considerable discussions held between the defendant and plaintiff and plaintiff’s agent in an attempt to close the sale. There was no evidence that any of the terms of the first contract were objected to other than the provision concerning the “permissible closing costs” provision. On cross-examination defendant admitted that this was so. Appellant argues that the conclusion of law number 3 filed by the trial court over her objections was erroneous in that it constituted an intermingling of findings of fact and conclusions of law contrary to Rule 296, Texas Rules of Civil Procedure; therefore, there were no findings of fact and conclusions of law that would support a recovery on the theory of estoppel. In this connection appellant argues that the doctrine of estop-pel cannot create a liability not created in the contract nor bring into existence a contract not made by the parties. Citing Washington National Ins. Co. v. Craddock; 130 Tex. 251, 109 S.W.2d 165 (Tex.Com.App.1937); 32 Tex.Jur.2d 661-2—Estoppel, Sec. 2.

There was ample evidence and the trial court found that the defendant represented to the plaintiff after various conversations that the defendant was willing to sell her house on the terms expressed in the sales contract if the provision requiring her to pay “all permissible closing costs” were removed; that the plaintiff, relying on these representations, extended his further efforts to obtain a second sales contract from Sanders identical in all material aspects except for the omission of the provision dealing with “permissible closing costs”. The trial court’s conclusion of law No. 3 stated' that “at the time plaintiff procured the second sales contract, ‘Exhibit D’, and informed defendant of such contract and its terms, defendant became bound under the listing contract, ‘Exhibit A’ to pay the six per cent (6%) commission since she was estopped by her conduct and representations to object to any of the provisions of the said sales contract that might have deviated from the express terms of the listing contract.”

Rule 296, T.R.C.P. provides that conclusions of law and findings of fact be stated separately. However, this is directory only. The appellate courts will construe the finding and conclusion together and if possible to be in harmony with the judgment so as to support it. Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Supreme Court 1963). Assignment of the wrong reasons by the trial court of its conclusions, transformation of the real character of finding, and conclusions, or finding and conclusion that might be mixed, is not reversible error. Whatever their nature makes them, they still are that in substance and in effect. Eubanks v. Puritan Chemical Co., Tex.Civ.App.1962, 353 S.W.2d 90, ref. n. r. e.; Golden State Mut. Life Ins. Co. v. Adams, Tex.Civ.App.1960 340 S.W.2d 77, Durham v. Fort Worth Tent & Awning Co., Tex.Civ.App.1954, 271 S.W.2d 181, err. dism.; Rule 296, T.R.C.P.

Whether the facts as plead and proved constituted estoppel or waiver, we believe and the trial court found that the defendant induced the plaintiff to perform the additional effort and service by securing the second contract on the reasonable belief that she had waived her objections to the first contract. She will now be estopped to insist on such rights or objections she once had, to the prejudice of the plaintiff. See 60 Tex.Jur.2d 184, Waiver, Sec. 3, and 31 C.J.S. Estoppel § 61, p. 386. See the following cases where similar situations have permitted the plaintiff to recovery although the strict terms of the contract have not been followed and where the defendant waived his objection to the deviation and was thus estopped to complain: Stuckey v. Union Mortgage & Investment Company, 383 S.W.2d 429, Tex.Civ.App.1964, ref. n. r. e.; Fain v. Texas-Hanover Oil Company, 354 S.W.2d 949, Tex.Civ.App.1962, n. r. e.; Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855 (Supreme Court 1958); Childress v. Cook, 5 Cir., 245 F.2d 798; Longbofham v. Ley, 47 S.W.2d 1109, Tex.Civ.App.1932, wr. ref. It appears to us that from the findings of fact and conclusions of law, the trial court passed on the ultimate questions before him. We hold that there was sufficient evidence to support the trial court’s findings. Plaza Co. v. White, Tex.Civ.App.1942, 160 S.W.2d 312, err. ref.; Bavousett v. Bradshaw, Tex.Civ.App., 332 S.W.2d 155, n. r. e.; Watson v. Upfield, 335 S.W.2d 777, Tex.Civ.App.1960. Rule 296, T.R.C.P. Appellant’s points are overruled.

In defendant-appellant’s sixth point she attacks the judgment of the trial court in awarding attorney’s fees in an action based upon an expressed written agreement which did not provide for attorney’s fees under Art. 2226, V.A.C.S. Appellant argues that this case involves a special contract to which attorney’s fees are not applicable under this statute. We overrule this point. We hold that this was a claim for personal services rendered within the meaning of Art. 2226, supra, and that there was sufficient evidence to support the finding of the trial court. The claim was presented to the defendant more than thirty days prior to the filing of the suit. The plaintiff was represented by an attorney to prosecute his suit, and as found by the trial court $350.00 was a reasonable attorney’s fees for these services. Texas Reserve Life Insurance Co. v. Security Title Company, 352 S.W.2d 347, Tex.Civ.App. 1961, n. r. e.; Bradshaw v. Marcum, 321 S.W.2d 352, Tex.Civ.App. 1959, n. r. e.; Craft v. Netherton, Tex.Civ.App., 276 S.W.2d 855.

The judgment of the trial court is affirmed.


author: ■ COLLINGS, Justice.

text:
    Lanelle Harbin TACKETT et vir, Appellants, v. Bruce S. TERRILL, Appellee.
    No. 4054.
    Court of Civil Appeals of Texas. Eastland.
    May 13, 1966.

      Clyde V. Sweeney, Stephenville, for appellants.
    Lucian Touchstone, Touchstone, Bernays & Johnston, Dallas, Ennis Favors, Stephen-ville, for appellee.
   ■ COLLINGS, Justice.

Lanelle Harbin brought suit in the District Court against Dr. Bruce S. Terrill. Plaintiff alleged that she was the wife of Judge Dale W. Harbin prior to his death on July 6, 1961; that after the death of her husband, Dr. Terrill performed a wrongful and unauthorized autopsy on his body; that such action by the defendant was a trespass and a crime, which caused plaintiff to suffer great mental anguish, distress and damages. Thereafter, it was suggested to the court-that plaintiff Lanelle Harbin had ■ married Jess J. Tackett and he was made a party plaintiff. The trial was to a jury and based upon the verdict, judgment was rendered against the plaintiffs and in favor of the defendant, Dr. Bruce S. Terrill. The plaintiffs have appealed.

The jury found that Mrs. Lanelle Harbin Tackett gave Dr. Bruce Terrill permission to perform an autopsy on her husband, Dale W. Harbin, on July 6, 1961. Appellants urge there is no evidence that Mrs. Tackett ever granted permission for Dr. Terrill to perform an autopsy on the body of her deceased husband; that the undisputed evidence shows appellant refused permission for an autopsy; that the undisputed evidence shows that Dr. Terrill attempted to justify the autopsy, rather than show that Mrs. Tackett granted permission therefor and that the undisputed evidence shows that Dr. Terrill intentionally performed the autopsy without the consent of appellant.

The record does show, as urged by appellants, that Dr. Terrill attempted to justify the autopsy. The controlling question, however, is whether there is evidence to support the jury finding that Mrs. Lanelle Harbin Tackett gave Dr. Terrill permission to perform the autopsy. There was testimony that Mrs. Tackett refused to grant permission for the autopsy. She so testified, and there was other testimony to the same effect. This testimony, however, was not undisputed. It is undisputed that Mrs. Tackett at first refused to give permission for the autopsy. Dr. Terrill, himself, testified that he met Lanelle Harbin Tackett when she arrived at her home in Stephenville after the death of her husband in Fort Worth; that he was family physician and felt there should be an autopsy to determine the cause of Judge Harbin’s death. Dr. Terrill testified that he advised Mrs. Tackett of his opinion in this respect and that she, at that time, interrupted him and said “if you mean' an autopsy, no, because they had asked me in Fort Worth if they could do an autopsy there — ”. Dr. Terrill further testified, however, that he told Mrs. Tackett that it was advisable for them to determine the cause of her husband’s death, if possible; that she talked to several of her friends, who were present, and then agreed to the autopsy. The doctor testified that, after so considering the matter, Mrs. Tackett said, “well, all right”, and that no restrictions whatever were placed upon her permission for an autopsy. Dr. Phillip Price, a witness called by appellants, was present at the time of the conversation between the parties and he testified that Mrs. Tackett consented that “the operative procedure should be had” and that he did not recall any restrictions being placed on appellant’s permission for the autopsy. Mr. Brad Thompson, a witness called by appel-lee, testified that he, also, was present at the time of the conversation between the parties; that Mrs. Tackett at first refused permission for an autopsy, but after further consideration gave Dr. Terrill authority to perform the autopsy, to see what caused her husband’s death. He stated that there was a discussion between all the parties present on the occasion concerning the advisability of the autopsy and that after Lanelle Harbin Tackett had considered the matter “a little bit” she said “well, all right”. He also stated that she did not place any restrictions on her consent to the autopsy and that Dr. Terrill told her that it would be something similar to a surgical operation. All of the witnesses who testified concerning the conversation stated that Mrs. Tack-ett gave permission to Dr. Terrill to see if he could determine the cause of Judge Harbin’s death. Appellants’ contention, and the testimony of appellants’ witnesses, is that Lanelle Harbin Tackett only gave permission “to go back in and open the operative site” and examine the graft at the site of a prior operation to see whether or not it had healed. Appellant and her witnesses stated that this was the extent of the permission given by Lanelle Harbin Tackett and that there was no permission to perform an autopsy. In this connection Dr. Terrill testified that he told Lanelle Harbin Tackett he would “do a surgical operation” and that was when she said “all right” or words to that effect; that “she consented to a surgical operation;” that he told her they would operate and “it would be all around the operative site where he had had the operation around the heart and the vessels.” There was further medical testimony to the effect that there was no difference in the meaning of the terms “autopsy” and “postmortem surgical operation;” that such terms were used interchangeably. From the foregoing it is .apparent that whether the widow consented or not was a question of fact. That question was decided against appellants.

Appellants’ points are all overruled and the judgment is affirmed.